L.  R.  A. 
AS  AUTHORITIES 


INCLUDING  THE  CITATIONS  OF  EACH  CASE  AS  A  PRECEDENT:  (1) 
BY  ANY  COURT  OF  LAST  RESORT  IN  ANY  JURISDICTION  OF 
THIS  COUNTRY;  (2)  BY  THE  EXTENSIVE  AND  THOROUGH 
ANNOTATIONS  OF  THE  LAWYERS  REPORTS  ANNO- 
TATED, THE  AMERICAN  STATE  REPORTS,  THE 
ENGLISH  RULING   CASES,  THE  BRITISH 
RULING  CASES,  AND  THE   UNITED 
STATES    SUPREME    COURT 
REPORTS  [LAW.  ED.]. 


1-70  L.  R.  A. 


IN  SIX  VOLUMES. 
VOLUME  I. 


KOCHESTEB,   N.  T. 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  COMPANY. 

1913 


Entered  according  to  Act  of  Congress,  in  the  Year  nineteen  hundred  five,  by 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING    CO., 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 

Copyright  nineteen  hundred  thirteen,  by 
THE   LAWYERS  CO-OPERATIVE  PUBLISHING  CO. 


E.  R.  ANDREWS  PRINTING  COMPANY,  Rochester.  N.  Y. 


PREFACE. 


The  legal  profession  has  been  rapidly  learning  in  recent  years  the 
exceptional  value  that  is  added  to  an  important  case  by  tracing  it 
through  the  later  decisions  that  have  been  founded  upon  it  or  have 
treated  it  as  a  precedent.  Rose's  Notes  on  the  United  States  Su- 
preme Court  Reports,  The  Notes  on  the  California  Reports,  the 
Texas  Reports,  the  Minnesota  Reports,  the  Dakota  Reports,  the 
Ohio  Reports,  and  various  others,  have  been  gradually  revealing  the 
fact  to  lawyers  and  judges  that  it  is  often  extraordinarily  useful  to 
be  able  to  trace  an  important  precedent  through  the  later  cases  that 
have  followed  it. 

Every  instance  in  which  an  L.R.A.  precedent  was  followed,  dis- 
tinguished, and  strengthened,  or,  on  the  other  hand,  limited,  or  in 
any  other  way  referred  to,  is  shown  herein  for  every  case  in  1-70 
L.R.A.  Since  the  first  edition  of  this  work  was  published  in  1905 
for  Volumes  1—50,  a  great  number  of  later  decisions  have  followed 
these  precedents,  so  that  there  is  now  a  total  of  about  110,000  de- 
cisions contained  herein  in  which  these  L.R.A.  decisions  have  been 
cited.  The  history  of  each  of  these  L.R.A.  cases  is  traced  through 
all  these  later  decisions,  and  in  that  process  there  is  furnished  at 
the  same  time,  a  condensed  digest  of  all  the  holdings  of  these  110,000 
cases  on  the  points  to  which  the  L.R.A.  precedents  are  cited. 

Another  feature  of  very  great  value  shows  where  each  of  these 
L.R.A.  cases  has  been  cited  in  any  of  the  exhaustive  annotations  of 
the  Lawyers  Reports  Annotated,  the  American  State  Reports,  the 
English  Ruling  Cases,  the  British  Ruling  Cases,  or  the  United  States 
Supreme  Court  Reports  [Law.  Ed.].  The  footnote  references  to 
any  of  these  cases  in  the  reports  of  later  decisions  are  also  noted,  as 
well  as  the  affirmance  or  reversal  of  any  case  by  the  Supreme  Court 
of  the  United  States. 

In  short,  this  work  gives  in  a  compact  form  the  entire  history 
of  each  L.R.A.  case  as  shown  by  all  the  later  cases  that  have  cited 
it,  and  also  the  substance  of  all  this  mass  of  later  decisions  on  that 
point,  while  the  references  to  the  later  annotations  which  have  cited 
any  case  lead  directly  to  exhaustive  discussions  and  analyses  of  the 
law  upon  the  questions  involved. 

The  arrangement  of  the  L.R.A.  cases  herein  is  in  the  order  of 
the  volume  and  page  of  the  reports,  so  that  the  materials  for  any 
case  can  be  instantly  found. 

Rochester,  K  Y.,  1913. 


L.  R  A.  GASES  AS  AUTHORITIES. 


OASES    IN    1    L.    R    A. 


1  L.  R.  A.  33,  NALLE  v.  PAGGI   (Tex.)   9  S.  W.  205. 
Party   walls. 

Cited  in  Nalle  v.  Paggi,  81  Tex.  203,  13  L.  R.  A.  51,  16  S.  W.  932,  on  second 
appeal,  holding  sale  of  lot  a  use  of  party  wall  within  agreement  to  pay  for  when 
used. 

Cited  in  footnotes  to  Everett  v.  Edwards,  5  L.  R.  A.  110,  which  holds  one 
owner  of  party  wall  may  increase  its  height  against  wishes  of  other;  Harber  v. 
Evans,  10  L.  R.  A.  41,  which  holds  one  may,  without  alleging  intended  use,  en- 
join co-owner  from  making  openings  in  party  wall;  Mott  v.  Oppenheimer,  17 
L.  R.  A.  409,  which  holds  land  subject  to  party-wall  agreement  may  be  sold  to 
enforce  payment  of  owner's  share;  Burr  v.  Lamaster,  9  L.  R.  A.  637,  which  holds 
agreement  to  pay  for  one  half  of  party  wall  an  encumbrance  on  land;  Graves  v. 
Smith,  5  L.  R.  A.  298,  which  holds  one  owner  of  party  wall  has  no  right  to  insert 
windows  in  raised  part,  impairing  value  of  other's  easement. 

Cited  in  notes   (7  L.  R.  A.  649)    on  party  wall  denned;    (7  L.  R.  A.  650)   on 
easement  created  by  agreement  for  party  wall;   (66  L.R.A.  681,  685)  on  enforce- 
ment of  obligation  to  contribute  to  cost  of  party  walls,  by  or  against  grantees 
or  successors  in  title. 
Party   wall   and    other   covenants   running   with   land. 

Cited  in  footnotes  to  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  holds  party- 
wall  agreement  runs  with  land  when  expressly  declared  to;  Lincoln  v.  Burrage, 
52  L.  R.  A.  110,  which  holds  promise  to  pay  for  party  wall  when  used,  to  grantor 
who  previously  sold  adjoining  lot,  does  not  bind  subsequent  purchaser  of  both 
lots;  Doty  v.  Chattanooga  Union  R.  Co.  48  L.  R.  A.  160,  which  holds  agreement 
to  operate  daily  trains  as  consideration  for  right  of  way  runs  with  land;  Huyck 
v.  Andrews,  3  L.  R.  A.  791,  which  holds  covenant  against  encumbrances  broken 
at  time  of  conveyance  by  outstanding  easement. 

1  L.  R.  A.  35,  SATTERFIELD  v.  MALONE,  35  Fed.  445. 
Answer   In   equity   as   evidence   for   defendant. 

Followed  in  McGorray  v.  O'Connor,  79  Fed.  863,  requiring  responsive  allega- 
tions of  answer  to  be  taken  as  true. 
Notice   to  purchaser. 

Cited  in  Hopkins  v.  O'Brien,  57  Fla.  457,  49  So.  936,  holding  burden  is  on 
party  who  neglected  to  record  his  prior  title  to  show  that  the  subsequent  pur- 
chaser has  acted  in  fraud  of  his  rights  by  purchasing  with  notice  of  his  prior 
unrecorded  conveyance. 

Cited  in  note  (1  L.  R.  A.  192)  as  to  constructive  notice  of  facts  stated  in 
deed. 

L.R.A.   Au.     Vol.  I.— 1. 


]   L.K.A.  51]  L.  R.  A.  CASES  AS  AUTHORITIES.  4 

viction  under  statute  regulating  sale  of  lard  and  substitutes;  State  v.  Snow, 
11  L.  R.  A.  355,  which  upheld  statute  regulating  sale  of  lard;  Frost  v.  Chicago, 
49  L.  R.  A.  657,  which  held  invalid  municipal  ordinance  forbidding  use  of 
colored  netting  to  cover  baskets  of  fruit;  Singer  v.  Maryland,  8  L.  R.  A.  551, 
which  upheld  statute  requiring  plumbers  to  procure  certificates;  Com.  v.  Roberts, 

16  L.  R.  A.  401,  which  upheld  statute  requiring  maintenance  of  waterclosets  in 
buildings;   Western  U.  Teleg.  Co.  v.   New  York,  3  L.  R.  A.  449,  which  upheld 
statute  compelling  placing  of  electric  wires  underground;    State  v.   Layton,   62 
L.  R.  A.  170,  sustaining  statute  prohibiting  manufacture  and  sale  of  alum  baking 
powder;  Arbuckle  v.  Blackburn,  65  L.R.A.  864,  which  upholds  statute  prohibiting 
the  coloring,  coating,  or  polishing  of  article  intended  for  food  whereby  damage 
or  inferiority  is  concealed. 

Cited  in  notes  (8  L.  R.  A.  854)  on  private  interests  subservient  to  public 
interests;  (9  L.  R.  A.  70)  on  regulation  of  markets  and  market  houses;  (10 
L.R.A.  187)  on  police  regulation  for  protection  against  fire;  (1  L.R.A.(N.S.)  187) 
on  validity  of  police  regulations  as  to  branding  or  labeling  articles  of  commerce; 
25  Am.  St.  Rep.  888,  on  police  power  of  state  to  prevent  imposition  and  fraud. 
As  to  oleomargarine. 

Cited  in  Plumley  v.  Massachusetts.  155  U.  S.  477,  39  L.  ed.  229,  5  Inters.  Com. 
Rep.  590,  15  Sup.  Ct.  Rep.  154,  Affirming  156  Mass.  241,  15  L.  R.  A.  843,  30  N.  E. 
1127,  upholding  statute  forbidding  sale  of  oleomargarine  in  form  resembling 
butter;  State  v.  Collins,  70  N.  H.  218,  45  Atl.  1080;  State  v.  Rogers,  95  Me. 
99,  85  Am.  St.  Rep.  395,  49  Atl.  564,  upholding  statute  requiring  oleomargarine 
to  be  colored  some  color  other  than  yellow;  Armour  Packing  Co.  v.  Snyder,  84 
Fed.  138;  State  v.  Collins,  67  N.  H.  540,  42  Atl.  51;  State  ex  rel.  Weideman  v. 
Horgan,  55  Minn.  185,  56  N.  W.  688;  State  v.  Myers,  42  W.  Va.  825,  35  L.  R.  A. 
845,  footnote,  p.  844,  57  Am.  St.  Rep.  887,  26  S.  E.  539,  upholding  statute  re- 
quiring oleomargarine  to  be  colored  pink;  State  v.  Ball,  70  N.  H.  41,  46  Atl.  50, 
upholding  a  statute  forbidding  use  of  oleomargarine  in  boarding  houses,  etc., 
without  informing  guests  as  to  its  nature;  Re  Brundage,  96  Fed.  966,  holding 
oleomargarine  statute  invalid  so  far  as  it  applied  to  sale  in  original  packages 
brought  from  another  state;  People  v.  Rotter,  131  Mich.  254,  91  N.  W.  167, 
upholding  statute  forbidding  sale  of  imitation  yellow  butter,  but  excepting  oleo- 
margarine not  colored  like  butter;  People  v.  Freeman,  242  111.  379,  90  N.  E.  366, 

17  A.  &  E.  Ann.  Cas.  1098;  Beha  v.  State,  67  Neb.  35,  93  N.  W.  155,  2  A.  &  E. 
Ann.  Cas.  846, — holding  statute  forbidding  the  selling  or  keeping  for  sale  "imi- 
tation butter"  colored  so  as  to  resemble  butter  made  from  pure   milk,   or  the 
-cream  thereof,  is  a  valid  exercise  of  the  police  power. 

Cited  in  footnote  to  State  ex  rel.  Monnett  v.  Capital  City  Dairy  Co.  57  L.  R.  A. 
181,  which  upholds  statute  forbidding  sale  of  oleomargarine  in  form  resembling 
tmtter. 

Cited  in  notes  (6  L.  R.  A.  634)  on  police  power  of  state  to  prohibit  sale  of 
oleomargarine;  (11  L.  R.  A.  532)  on  regulation  and  prohibition  of  manufacture 
and  sale  of  oleomargarine  in  various  states;  (78  Am.  St.  Rep.  257,  258;  85  Am. 
St.  Rep.  401)  on  right  of  states  to  regulate  manufacture  and  sale  of  oleomar- 
garine. 
Recovery  of  penalties;  nature  of  remedy. 

Cited  in  State  v.  McConnell,  70  N.  H.  159,  46  Atl.  458,  holding  the  penalty 
involved  recoverable  by  criminal  proceedings  in  name  of  the  state;  State  v. 
Missouri  P.  R.  Co.  64  Neb.  683,  90  N.  W.  877,  holding  use  of  word  "fine"  deter- 
mines form  of  remedy  as  criminal  in  "maximum  freight-rate  law;"  Western  U. 
Teleg.  Co.  v.  State,  86  Neb.  23,  124  N.  W.  937,  holding  use  of  word  "fine"  deter- 
mined form  of  remedy  as  criminal  in  State  Railway  Commission  law;  State 


5  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  58 

ex  rel.  Howell  County  v.  West  Plains  Teleph.  Co.  232  Mo.  584,  135  S.  W.  20, 
holding  that  word  "fine"  in  statute  requiring  corporations  to  make  annual  re- 
ports is  used  in  sense  of  "penalty"  and  action  to  recover  it  is  civil,  not  criminal. 

1  L.  R.  A.  56,  STATE  v.  WIGGIN,  64  N.  H.  508,  15  Atl.  128. 
Equal   protection   niid   privileges. 

Cited  in  State  v.  Montgomery,  94  Me.  202,  80  Am.  St.  Rep.  386,  47  Atl.  165, 
holding  deprival  of  right  to  license  a  violation  of  equal  protection  clause. 

Cited  in  note  (40  L.  R.  A.  (N.  S.)  291)  on  discrimination  against  nonresidents, 
in  imposing  license  or  occupation  tax. 
Interstate  commerce. 

Cited  in  footnote  to  Norfolk  &  W.  R.  Co.  v.  Com.  13  L.  R.  A.  107,  which  holds 
prohibition  against  running  freight  trains  on  Sunday  invalid  as  regulation  of 
commerce. 

Cited  in  notes  (14  L.  R.  A.  98)  on  peddlers  and  drummers  as  related  to  inter- 
state commerce;  (60  L.  R.  A.  692)  on  corporate  taxation  and  the  commerce 
clause;  (27  Am.  St.  Rep.  563)  on  state  regulation  of  interstate  commerce. 

1  L.  R.  A.  57,  DUBE  v.  MASCOMA  MUT.  F.  INS.  CO.  64  N.  H.  527,  15  Atl.  141. 
Assignment  for  creditor*;  what  passes. 

Cited   in   Rowland's  Appeal,   67   N.  H.  578,  35   Atl.   943,   and  Brimblecom  v. 
O'Brien,  69  N.  H.   370,  46  Atl.   187,  holding  all  debtor's  unexempt  estate  con- 
veyed by  assignment  for  creditors. 
Insurance;    conditions. 

Cited  in  Imperial  F.  Ins.  Co.  v.  Coos  County,  151  U.  S.  467,  38  L.  ed.  237,  14 
Sup.  Ct.  Rep.  379,  holding  policy  forfeited  by  making  alterations  and  repairs. 

Cited  in  note  (1  L.  R.  A.  704)  on  conditions  in  policy  against  alienation  of 
property. 

1  L.  R.  A.  58,  LEAVITT  v.  LOVERIN,  64  N.  H.  607,  15  Atl.  414. 
Construction   of  statutes. 

Approved  in  Gray  v.  Cumberland  County,  83  Me.  437,  22  Atl.  375,  holding- 
that  the  more  important  of  two  conflicting  laws  must  prevail;  Wiggin  v.  Man- 
chester, 72  N.  H.  584,  58  Atl.  522  (dissenting  opinion),  as  to  presumption  that 
express  repeal  of  existing  acts  not  intended  to  interfere  with  contracts. 

Cited  in  State  v.  Gerry,  68  N.  H.  503,  38  L.  R.  A.  232,  38  Atl.  272,  and  State  v. 
Jackson,  69  N.  H.  523,  43  Atl.  749,  holding  court  bound  to  give  statute  con- 
struction consistent  with  the  Constitution,  if  possible;  Wiggin  v.  Manchester,. 
72  N.  H.  584,  58  Atl.  522;  Wyatt  v.  State  Board,  74  N.  H.  590,  70  Atl.  387; 
Canaan  v.  Enfield  Village  Fire  Dist.  74  N.  H.  530,  70  Atl.  250,— holding  a  con- 
struction that  makes  a  statute  unconstitutional  in  its  operation  is  not  to  be 
adopted  when  it  is  reasonably  susceptible  of  another  and  constitutional  construc- 
tion. 
Assignment  for  creditors;  effect. 

Approved  in  Hackett  v.  Leominster  Nat.  Bank,  68  N.  H.  275,  44  Atl.  393, 
holding  void  a  pledge  of  stock  to  secure  existing  debt,  made  less  than  three 
months  before  commencement  of  insolvency  proceedings. 

Distinguished  in  Gathercole  v.  Bedel,  65  N.  H.  212,  18  Atl.  319,  holding  attach- 
ment dissolved  by  proving  claim  under  valid  assignment. 
Impairment  of  obligation. 

Cited  in  footnote  to  Peninsular  Loaa  S:  Color  Works  v.  Union  Oil  &  Paint  Co. 
42  L.  R.  A.  331,  which  holds  unconstitutional  a  statute  providing  that  an  at- 
tachment is  dissolved  by  a  subsequent  assignment  for  creditors. 


1  L.R.A.  60]  L.  R.  A.  CASES  AS  AUTHORITIES.  6 

1  L.  R.  A.  60,  AMERICAN  BELL  TELEPH.  CO  v.  AMERICAN  CUSHMAN 

TELEPH.  CO.  35  Fed.  734. 
Patents;   sufficiency   of  evidence. 

Approved  in  Edison  Electric  Light  Co.  v.  Electric  Mfg.  Co.  57  Fed.  618,  re- 
quiring proof  of  defense  of  anticipation  and  prior  use  of  patent  to  be  clear,  satis- 
factory, and  beyond  reasonable  doubt. 

Cited   in  note    (20  Eng.   Rul.   Gas.   184)    on  prior  knowledge  and   use   of   in- 
vention. 
Infringement  of  patents. 

Cited  in  American  Bell  Teleph.  Co.  v.  Cuslnnan  Teleph.  &  Service  Co.  1  L.  R.  A. 
800,  36  Fed.  488,  holding  infringement  in  certain  cities  of  patent  for  tele- 
phone not  justified  by  owner's  withdrawal  of  telephone  accommodations  there- 
from. 

1  L.  R.  A.  64,  WITTERS  v.  SOWLES,  35  Fed.  640. 
National   banks;   married   women   as   stockholders. 

Approved  in  Kerr  v.  Urie,  86  Md.  77,  38  L.  R.  A.  121,  63  Am.  St.  Rep.  493,  37 
Atl.  789,  holding  valid,  for  purposes  of  liability  as  stockholder,  transfer  of  na- 
tional bank  stock  to  married  woman  im  state  where  she  is  competent  to  be  stock- 
holder, irrespective  of  law  of  state  where  bank  is  located;  Witters  v.  Sowles,  38 
Fed.  700,  holding,  on  motion  for  new  trial,  married  woman  in  Vermont  compe- 
tent to  become  shareholder  in  national  bank,  with  its  attendant  liabilities. 

Cited  in  Christopher  v.  Norvell,  201  U.  S.  227,  50  L.  ed.  736,  26  Sup.  Ct.  Rep. 
502,  5  A.  &  E.  Ann.  Gas.  740,  holding  under  statute  a  married  woman  residing 
in  Florida  who  has  inherited  stock  in  a  national  bank  which  has  been  trans- 
ferred to  her  and  on  which  she  has  received  and  accepted  dividends  is  subject  to 
a  personal  judgment  for  an  assessment  of  the  comptroller  notwithstanding  that 
under  the  laws  of  Florida  a  married  woman  cannot  enter  into  a  contract. 

1  L.  R.  A.  65,  WHELAN  v.  NEW  YORK,  L.  E.  &  W.  R.  CO.  35  Fed.  849. 

Trial  on  merits  in  38  Fed.  15. 
Repeal  of  statute   as  to   removal. 

Cited  in  Minnick  v.  Union  Ins.  Co.  40  Fed.  369,  holding  provisions  of  former 
law  as  to  mode  of  removal  repealed  by  act  of  1887;  Crotts  v.  Southern  R.  Co.  90 
Fed.  2,  holding  act  of  1887-88  repealed  by  U.  S.  Rev.  Stat.  §  639,  permitting 
affidavit  in  words  of  statute  as  to  existence  of  prejudice. 

Cited  in  footnote  to  Ames  v.  Hager,  1  L.  R.  A.  377,  holding  U.  S.  Rev.  Stat. 
§  629,  clause  4  (U.  S.  Comp.  Stat.  1901,  p.  511),  not  repealed  by  act  of  1887. 

Cited  in  note   (ll  L.  R.  A.  572)  on  question  whether  earlier  act  as  to  removal 
repealed. 
Separable   controversy. 

Cited  in  Campbell  v.  Milliken,  119  Fed.  985,  holding  that  nonresident  defend- 
ant  joined    with    resident    defendants    cannot    remove    cause   unless    controversy 
separable. 
Diversity  of  citizenship  as  ground  for  removal. 

Cited  in  Jackson  &  S.  Co.  v.  Pearson,  60  Fed.  127;  Bonner  v.  Meikle,  77  Fed. 
489 ;  Haire  v.  Rome  R.  Co.  57  Fed.  323  —  holding  cause  could  be  removed  by  any 
nonresident  defendant,  though  other  defendants  citizens;  Detroit  v.  Detroit  City 
R.  Co.  54  Fed.  5,  holding  that  any  nonresident  defendant  may  remove,  even  in 
equity  case. 

Cited  in  footnotes  to  Herndon  v.  JEtna.  F.  Ins.  Co.  10  L.  R.  A.  54,  which  holds 
that  diverse  citizenship  at  commencement  of  action  must  be  shown;  First  Xat. 


7  L.  R.  A.  CASES  AS  AUTHORITIES.  1  L.R.A.  65] 

Bank  v.  Merchants  Bank,  2  L.  R.  A.  469,  which  holds  nonresident  defendant  may 
remove  for  diversity  of  citizenship,  though  plaintiff  is  also  a  nonresident;  Seddon 
v.  Virginia,  T.  &  C.  Steel  &  I.  Co.  1  L.  R.  A.  108,  which  holds  District  of  Colum- 
bia not  a  state  within  provision  for  removal  where  controversy  wholly  between 
citizens  of  different  states. 

Cited  in  notes  (3  L.  R.  A.  545)  on  necessity  that  citizenship  shall  be  diverse; 
(11  L.  R.  A.  217)  on  corporation's  right  of  removal  for  diversity  of  citizenship. 

Distinguished  in  Thouron  v.  East  Tennessee,  V.  &  G.  R.  Co.  38  Fed.  676,  holding 
cause  not  removable  unless  all  the  necessary  plaintiffs  are  citizens  of  state  in 
which  action  brought;  Adelbert  College  v.  Toledo,  W.  &  W.  R.  Co.  47  Fed.  846, 
holding  cause  not  removable  because  some  of  plaintiffs  were  citizens  of  same 
state  as  defendants. 

Disapproved  in  effect  in  Anderson  v.  Bowers,  43  Fed.  321,  holding  cause  not  re- 
movable if  any  defendant  a  citizen  of  state  with  plaintiff. 
Time    for    removal. 

Cited  in  Craven  v.  Turner,  82  Me.  388,  18  Atl.  864,  holding  time  for  removal 
not  expired   until   plea  to   the  declaration  disposed  of;    Huskins  v.   Cincinnati, 
N.  O.  &  T.  P.  R.  Co.  3  L.  R.  A.  548,  37  Fed.  507,  holding  removal  may  be  made 
at  any  time  before  final  hearing  in  state  court,  for  diverse  citizenship. 
Hovr   prejudice   made   to   appear. 

Cited  in  Carson  &  R.  Lumber  Co.  v.  Holtzclaw,  39  Fed.  886,  holding  prejudice 
not  sufficiently  shown  by  applicant's  affidavit  when  considered  with  controverting 
affidavits:  Walcott  v.  Watson,  46  Fed.  531,  holding  affidavit  stating  facts  on 
which  affiant's  belief  founded,  sufficient;  Huskins  v.  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  3  L.  R.  A.  548,  37  Fed.  507,  holding  existence  of  prejudice  not  jurisdictional, 
and  may  be  shown  by  petition  and  affidavit;  Cooper  v.  Richmond  &  D.  R.  Co. 
«  L.  R.  A.  367,  42  Fed.  698,  and  Minnick  v.  Union  Ins.  Co.  40  Fed.  370,  holding 
affidavit  in  positive  terms  of  existence  of  prejudice,  sufficient. 

Cited  in  notes  (9  L.  R.  A.  232)  on  affidavit  in  support  of  application;  (11 
L.  R.  A.  571)  upon  affidavit  for  removal  of  cause  for  prejudice. 

Distinguished  in  Minnick  v.  Union  Ins.  Co.  40  Fed.  369,  remanding  cause 
because  affidavit  of  belief  only  not  sufficient  to  sho%v  prejudice. 

Disapproved  in  effect  in  Amy  v.  Maiming,  38  Fed.  536,  holding  an  affidavit  that 
defendant  believes  and  has  reason  to  believe  that  prejudice  exists  insufficient. 
l'~acts   traversable   on   removal. 

Followed  in  Cooper  v.  Richmond  &  D.  R.  Co.  8  L.  R.  A.  367,  42  Fed.  700,  hold- 
ing grounds  of  affidavit  not  traversable. 

Questioned  in  Detroit  v.  Detroit  City  R.  Co.  54  Fed.  17,  denying  motion  to 
remand,  no  affidavit  in  rebuttal  to  that  for  removal  being  filed. 

Disapproved  in  Ellison  v.  Louisville  &  N.  R.  Co.  50  C.  C.  A.  531,  112  Fed.  806, 
holding  facts  in  moving  affidavit  on  ex  parte  application  might  subsequently  be 
traversed;    Montgomery   County  v.   Cochran,   116   Fed.   990,   holding  facts   in  ex 
farte  moving  affidavit  may  subsequently  be  traversed. 
Ex   parte   application   for   removal. 

Approved  in  Minnick  v.  Union  Ins.  Co.  40  Fed.  369,  holding  notice  of  applica- 
tion for  removal  not  required. 

Cited  in  Reeves  v.  Corning,  51  Fed.  778,  holding  that  motion  to  remove  may 
be  made  without  notice;  Bonner  v.  Moikle,  77  Fed.  488.  holding  it  better  prac- 
tice to  give  notice  of  application;  Chiatovich  v.  Hanchett,  78  Fed.  194,  holding 
removal  for  diversity  of  citizenship  may  be  granted  on  application  without  notice. 


I  L.R.A.  65]  L.  R.  A.  CASES  AS  AUTHORITIES.  8 

Amount    in  dispute  as  affecting  removal. 

Cited  in  Huskins  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  3  L.  R.  A.  549,  37  Fed.  507, 
holding  removal  may  be  had  without  regard  to  amount  in  controversy. 

Cited  in  note   (9  L.  R.  A.  229,  232)    upon  the  right  to  remove  depending  on 
amount  in  dispute. 
Local  prejudice. 

Cited  in  Holmes  v.  Southern  R.  Co.  125  Fed.  303,  holding  valid,  provision  for 
removal  by  any  defendant  for  local  prejudice,  though  controversy  may  include 
defendants  in  same  state  with  plaintiff;  Boatmen's  Bank  v.  Fritzlen,  68  C.  C.  A. 
288,  135  Fed.  665,  holding  same. 

1  L.  R.  A.  75,  OWENS  v.  BALTIMORE  &  O.  R.  CO.  35  Fed.  715. 
Railroad    relief    association;    release    of    railroad. 

Cited  in  Eckman  v.  Chicago,  B.  &  Q,  R.  Co.  169  111.  319,  38  L.  R.  A.  754,  48 
N.  E.  496;  Beck  v.  Pennsylvania  R.  Co.  63  X.  J.  L.  239,  76  Am.  St.  Rep.  211,  43 
Atl.  908;  Lease  v.  Pennsylvania  Co.  10  Ind.  App.  52,  37  N.  E.  423;  Pittsburg, 
C.  C.  &  St.  L.  R.  Co.  v.  Cox,  55  Ohio  St.  516,  35  L.  R.  A.  512,  45  N.  E.  641; 
Petty  v.  Brunswick  &  W.  R.  Co.  109  Ga.  672,  35  S.  E.  82;  Otis  v.  Pennsylvania 
Co.  71  Fed.  138;  Shaver  v.  Pennsylvania  Co.  71  Fed.  936  —  upholding  agreement 
in  application  for  membership  that  acceptance  of  benefit  from  railroad  relief 
association  should  release  railroad  from  all  damages  for  injury  or  death ;  State 
use  of  Black  v.  Baltimore  &  0.  R.  Co.  36  Fed.  656,  upholding  release  by  widow 
of  member  of  association  under  whose  constitution  claim  payable  only  on  condi- 
tion that  all  persons  entitled  should  release  railroad  upon  acceptance  of  bene- 
fit; Brown  v.  Baltimore  &  O.  R.  Co.  6  App.  D.  C.  246,  holding  a  brakeman  barred 
from  bringing  action  by  accepting  benefit,  and  giving  release  based  on  previous 
agreement  therefor;  Johnson  v.  Charleston  &  S.  R.  Co.  55  S.  C.  160,  44  L.  R.  A. 
649,  32  S.  E.  5,  upholding  contract  that  acceptance  of  benefits  shall  relieve  rail- 
road company,  but  leaving  acceptance  optional;  Chicago,  B.  &  Q.  R.  Co.  v.  Curtis, 
51  Neb.  463,  71  N.  W.  42,  and  Chicago,  B.  &  Q.  R.  Co.  v.  Bell,  44  Neb.  54,  62 
X.  \V.  314,  holding  contract  that  acceptance  of  benefit  should  operate  as  a  re- 
lease and  satisfaction  valid;  Chicago,  B.  &  Q.  R.  Co.  v.  Miller,  22  C.  C.  A.  266, 
40  U.  S.  App.  448,  76  Fed.  441,  conceding  the  validity  of  such  a  contract;  Twaits 
v.  Pennsylvania  R.  Co.  77  N.  J.  Eq.  109,  75  Atl.  1010;  Colaizzi  v.  Pennsylvania 
R.  Co.  143  App.  Div.  645,  128  N.  Y.  Supp.  312;  Atlantic  Coast  Line  R.  Co.  v. 
Dunning,  94  C.  C.  128,  166  Fed.  859, — holding  contract  between  employee  and 
railway  company  whereby  the  former  in  consideration  of  benefits  to  be  received 
from  relief  association  releases  claim  for  damages  for  injuries  valid;  Harrison 
v  Alabama  Midland  R.  Co.  144  Ala.  255,  40  So.  394,  6  A.  &  E.  Ann.  Gas.  804, 
holding  relief  association  contract  not  ultra  vires;  Baltimore  &  0.  R.  Co.  v. 
Ray,  36  Ind.  App.  437,  73  N.  E.  942,  holding  a  contract  required  by  a  railroad 
company  and  providing  that  each  employee  shall  become  a  member  of  its  relief 
department  and  as  such  be  entitled  to  certain  relief  in  case  of  injury,  but  that 
if  an  action  in  damages  be  brought  by  such  employee  or  his  personal  repre- 
sentatives for  injuries  received  the  same  shall  be  a  release  of  any  benefits  in 
such  relief  fund,  is  not  contrary  to  public  policy;  Barden  v.  Atlantic  Coast  Line 
R.  Co.  152  N.  C.  332,  67  S.  E.  971  (dissenting  opinion),  as  to  membership  of  asso- 
ciation releasing  railway  company  from  damages;  Atlantic  Coast  Line  R.  Co. 
v.  Beazley,  54  Fla.  342,  45  So.  761,  holding  contract  not  valid  where  statute 
forbade  contracts  limiting  liability. 

Cited  in  footnotes  to  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Moore,  44  L.  R.  A.  638, 
holding  such  agreement  does  not  violate  statute  prohibiting  employee  from  agree- 
ing to  waive  right  of  action  for  injuries;  Donald  v.  Chicago,  B.  &  Q.  R.  Co.  33 


9  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  79 

L.  R.  A.  492,  and  Oyster  v.  Burlington  Relief  Department,  59  L.  R.  A.  291,  which 
uphold  terms  in  benefit  certificate  of  railroad  relief  association  requiring  waiver 
of  action  if  benefits  accepted. 

Cited  in  notes  (10  L.R.A. (N.S.)  199)  on  validity  of  provision  of  railroad  relief 
department  for  forfeiture  of  benefits  in  case  of  suit  against  company;  (11  L.R.A. 
(X.S.)  189)  on  contracts  requiring  servant  to  elect  between  benefits  of  relief 
fund  and  his  action  for  damages. 

Distinguished  in  Chicago,  B.  &  Q.  R.  Co.  v.  Wymore,  40  Neb.  658,  58  N.  W. 
1120,  holding  acceptance  of  benefits  by  beneficiary  no  bar  to  action  for  his  death, 
brought  in  behalf  of  his  children. 

Questioned  in  Chicago,  B.  &  Q.  R.  Co.  v.  Hendricks,  125  111.  App.  591,  holding  a 
regulation  of  fraternal  benefit  society  which  precludes  the  personal  representative 
of  a  deceased  member  from  benefits  unless  releases  of  claim  for  damages  against 
a  railroad  company  are  obtained  from  parties  other  than  such  personal  repre- 
sentative, who  receive  no  consideration  therefor,  is  unreasonable  and  void. 
Interest  on  verdict. 

Cited  in  Griffith  v.  Baltimore  &  O.  R.  Co.  44  Fed.  585,  allowing  interest  on 
verdict  from  date  pf  its  rendition  to  entry  of  judgment,  where  stay  granted. 
Redaction  of  damage. 

Cited  in  footnote  to  Lawrence  v.  Porter,  26  L.  R.  A.  167,  requiring  buyer  on 
credit,  on  breach  by  seller,  to  accept's  latter's  unconditional  offer  to  sell  at  re- 
duced price  for  cash;  Chicago  City  R.  Co.  v.  Saxby,  68  L.R.A.  164,  which  sustains 
right  of  injured  person  to  recover  for  tuberculosis  condition  of  knee  resulting 
from  injury,  notwithstanding  fact  that  tuberculosis  was  organic  and  mistakes  in 
treatment. 

Cited  in  notes  (59  L.R.A.  496)  on  measure  of  damages  for  personal  injury 
aggravated  by  negligence  of  physician  or  injured  person;  (67  L.R.A.  96)  on 
mitigation  of  damages  for  personal  injury  by  receipt  of  money  from  some  other 
source  because  of  injury. 

1  L.  R.  A.  79,  LINDLEY  v.  O'REILLY,  50  N.  J.  L.  636,  7  Am.  St.  Rep.  802,  15 

Atl.  379. 
Foreign  judgment. 

Cited  in  Overby  v.  Gordon,  13  App.  D.  C.  416,  holding  decree  in  one  state 
granting  letters  of  administration  inadmissible  to  devest  previously  acquired  ju- 
risdiction in  other  state;  Bullock  v.  Bullock,  52  N.  J.  Eq.  565,  27  L.  R.  A.  215, 
46  Am.  St.  Rep.  528,  30  Atl.  676,  Affirming  51  N.  J.  Eq.  446,  27  Atl.  435,  holding 
no  lien  acquired  on  land  in  one  state  by  decree  in  another  for  execution  of  mort- 
gage thereon. 

Ci'.ed  in  notes  (54  L.  ed.  U.  S.  65)  on  conveyance  by  officer  of  court  as  affecting 
real  property  in  another  state;   (5  Eng.  Rul.  Cas.  930)  on  effect  of  foreign  judg- 
ment. 
Territorial  limitations  of  courts. 

Cited  in  Smith  v.  Davis,  90  Cal.  29,  25  Am.  St.  Rep.  92,  27  Pac.  26,  holding  that 
court  may  appoint  trustee  to  carry  out  trust  in  land  in  other  state;  Vreeland  v. 
Vreeland,  49  N.  J.  Eq.  326,  24  Atl.  551,  holding  that  decree  of  court  having  juris- 
diction of  person  may  be  rendered  effective  by  compelling  execution  of  deed  for 
land  in  other  state;  Conant  v.  Deep  Creek  &  C.  Valley  Irrig.  Co.  23  Utah,  630, 
90  Am.  St.  Rep.  721,  66  Pac.  188,  holding  court  in  state  where  stream  rises 
without  jurisdiction  to  determine  respective  rights  to  water  of  such  stream  in 
other  state;  Vacuum  Oil  Co.  v.  Eagle  Oil  Co.  154  Fed.  875,  holding  the  fact  that 
the  subject-matter  of  a  suit  is  situated  in  a  foreign  country  will  not  deprive  » 


1  L.R.A.  79]  L.  R.  A.  CASES  AS  AUTHORITIES.  10 

court  of  equity  of  the  United  States  of  jurisdiction  to  grant  relief  against  fraud 
with  reference  to  such  subject-matter  by  defendants  who  are  within  the  court's 
jurisdiction;  Chidsey  v.  Brookes,  130  Ga.  221,  60  S.  E.  529.  14  A.  &  E.  Ann.  Cas. 
975,  holding  a  devisee  under  a  will  executed  and  probated  in  another  state  cannot 
maintain  a  suit  to  recover  land  adversely  held  until  will  has  been  probated  in 
this  state;  Taylor  v.  Hulett,  15  Idaho,  269,  19  L.R.A.(X.S.)  538..  97  Pac.  37, 
holding  an  action  to  quiet  title  to  real  estate  must  be  prosecuted  and  maintained 
in  the  jurisdiction  in  which  the  subject-matter  is  situated;  Edwards  v.  Porter, 
140  Ky.  315,  132  S.  W.  582,  holding  maintainable  action  by  landlord  against 
tenant  for  waste  committed  on  land  in  another  state;  State  ex  rel.  Barrett  v. 
District  Ct.  94  Minn.  372,  102  X.  W.  869,  3  A.  &  E.  Ann.  Cas.  725,  as  to  limita- 
tions imposed  on  state  courts  by  state  boundaries  not  affecting  substance  of  rule 
in  regard  to  place  of  trial  to  cancel  contract  for  fraud;  Fall  v.  Fall,  75  Xeb.  129, 
121  Am.  St.  Rep.  767,  113  N.  W.  175,  holding  a  decree  of  a  court  of  chancery  in 
one  state  ordering  the  conveyance  of  land  situated  in  another  state  can  act  only 
upon  the  person  within  its  jurisdiction  and  cannot  affect  the  title  to  the  land; 
Rober  v.  Michelson,  82  Xeb.  50,  116  X.  W.  949,  holding  legislature  of  a  state  is 
without  power  to  authorize  its  courts  to  quiet  title  to  lands  within  boundaries 
of  a  sister  state;  Bowler  v.  First  Xat.  Bank,  21  S.  D.  460,  130  Am.  St.  Rep.  725, 
113  X.  W.  618,  holding  that  state  court  has  jurisdiction  of  action  by  trustee  in 
bankruptcy  to  set  aside  deed  of  bankrupt  to  land  in  another  state;  Wren  v. 
Rowland,  33  Tex.  Civ.  App.  94,  75  S.  W.  894,  holding  the  full  faith  and  credit 
required  by  the  act  of  Congress  to  the  proceedings  of  a  sister  state  applies  only 
to  those  of  a  court  having  jurisdiction  over  the  subject-matter  with  which  it  18 
attempting  to  deal. 

Cited  in  note  (69  L.R.A.  674,  681,  685,  695)  on  jurisdiction  of  equity  over  suits 
affecting  realty  in  another  state  or  country. 
Specific   performance  of   contract. 

Cited  in  Silver  Camp  Min.  Co.  v.  Dickert,  31  Mont.  492,  67  L.R.A.  942,  78  Pac, 
967,  3  A.  &  'E.  Ann.  Cas.  1000,  holding  action  is  one  in  personam. 

Cited  in  footnote  to  Hodges  v.  Kowing,  7  L.  R.  A.  87,  which  holds  suit  for 
specific  performance  as  to  land  not  defeated  by  existence  of  remedy  at  law. 

Cited  in  note  (4  L.  R.  A.  204)  as  to  when  specific  performance  will  be  decreed. 
Executor's  power  to  sell. 

Cited  in  Smalley  v.  Smalley,  54  X.  J.  Eq.  594,  35  Atl.  374,  holding  no  implied 
power  to  sell  land  given  to  executor  by  will;  Cruikshank  v.  Parker,  51  X.  J.  Eq. 
25,  26  Atl.  925,  holding  no  power  to  sell  implied  from  provision  in  will  to  invest 
and  reinvest  the  shares  of  certain  legatees;  Schroeder  v.  Wilcox,  39  Xeb.  150r 
57  X.  W.  1031,  holding  executor  authorized  to  sell,  under  provision  for  distribut- 
ing proceeds  of  sale;  Crane  v.  Bolles,  49  X.  J.  Eq.  381,  24  Atl.  237,  holding  fee 
in  land  went  to  executor  in  trust  under  provisions  of  will;  Hale  v.  Hale,  146 
111.  247,  20  L.  R.  A.  252,  33  X.  E.  858,  holding  that  legal  title  to  estate  passed  to 
executors  under  will;  Lawrence  v.  Barber,  116  Wis.  302,  93  X.  W.  30,  holding 
that,  where  will  directs  sale  of  real  estate  in  settlement,  executor  is  person  im- 
pliedly  intended  to  make  sale;  Chandler  v.  Thompson,  62  X.  J.  Eq.  727,  48  Atl. 
583,  holding  no  power  of  sale  where  none  clearly  conferred  in  will,  and  use  of 
words  "devise"  and  "devisees"  in  codicil  indicates  intention  that  real  estate  shall 
continue  such;  Harris  v.  Ingalls,  74  X.  H.  342,  68  Atl.  34,  holding  an  express 
direction  for  the  division  of  residue  of  an  estate  into  four  equal  parts  and  the 
distribution  of  each  part  among  the  liens  of  certain  relatives  is  sufficient  to  in- 
vest executors  with  authority  to  convert  the  realty  into  money  for  the  purpose 
of  such  division,  when  the  location  and  character  of  the  property  and  number  of 


1]  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  86 

beneficiaries  render  such  a  course  necessary  in  order  to  effectuate  the  testator's 
intention  to  give  a  share  in  severalty  to  each  of  the  distributees;  Ker  v.  Banta, 
71  X.  J.  Eq.  53,  63  Atl.  550;  Laraggi  v.  Borella,  73  N.  J.  Eq.  423,  67  Atl.  929,— 
holding  when  a  testator  in  the  disposition  of  his  estate,  imposes  on  an  executor 
duties  to  be  performed  which  require  for  their  performance  a  power  of  sale,  the 
executor  will  take,  by  implication,  such  power  as  will  enable  him  to  perform 
those  duties;  Powell  v.  Wood,  149  X.  C.  239,  62  S.  E.  1071,  holding  when  a  power 
is  given  a  trustee  under  a  will  to  receive,  hold  and  invest  and  reinvest  the  estate 
of  his  testator,  including  lands,  which  is  consistent  with  the  other  terms  of  the 
will,  it  confers  the  authority  to  sell  the  lands  and  make  valid  title  thereto. 

Cited  in  footnote  to  Re  Higgins,  28  L.  R.  A.  116,  which  discusses  the  relation 
to  an  estate  of  an  executor  who  is  also  a  testamentary  trustee. 

Cited  in  notes  (5  L.R.A.  104)  as  to  equitable  conversion  under  power  of  sale 
in  will;  (32  L.R.A.(N.S-)  692,  693)  on  implied  power  of  executor  or  trustee  to 
sell  realty;  (16  Am.  St.  Rep.  568)  on  executor's  power  to  dispose  of  lands. 

Distinguished  in  Boylan  v.  Townley,   62  N.  J.  Eq.  593,  51  Atl.   116,  holding 
power  to  sell  not  implied  where  no  duty  imposed  and  conversion  not  necessary 
part  of  testator's  scheme. 
Record    of   foreign   will. 

Cited  in  Lindley  v.  Keim,  54  N.  J.  Eq.  426,  34  Atl.  1073,  raising,  but  not  de- 
ciding, the  question  as  to  statutory  authority  to  record  foreign  wills;  Sayre  v. 
Sage,  47  Colo.  565,  108  Pac.  160,  holding  certified  copy  of  will  with  certificate 
of  probate  in  another  state  inadmissible  to  establish  title  to  land  in  state. 

Cited  in  notes  (48  L.  R.  A.  133,  150)  on  effect  of  probate  of  will  in  other 
state;  (9  L.R.A.  244)  on  foreign  letters  of  administration;  (2  L.R.A.(N.S.)  427) 
on  conflict  of  laws  as  to  wills;  (113  Am.  St.  Rep.  212,  214)  on  probate  of  foreign 
wills. 

1  L.  R.  A.  86,  STATE  ex  rel.  PAUL  v.  CIRCUIT  JUDGE,  50  N.  J.  L.  585,  15 

Atl.  272. 
Certiorari. 

Approved  in  State  ex  rel.  Enderlin  State  Bank  v.  Rose,  4  N.  D.  331,  26  L.  R. 
A.  602,  58  N.  W.  514,  holding  attachment  plaintiff  entitled  to  sue  out  writ  where 
property  taken  from  sheriff. 

Distinguished  in  Middleton  v.  Robbins,  53  N.  J.  L.  558,  22  Atl.  481,  refusing 
certiorari  to  owner  and  licensee  of  hotel,  to  review  order  for  election  to  deter- 
mine minimum  license  fee. 
Intoxicating  liqnors;  license. 

Cited  in  notes  (10  L.  R.  A.  82)  on  prohibitory  laws;  (30  L.  R.  A.  422)  on 
limit  of  amount  of  license  fees;  (8  L.R.A. (KS.)  363)  on  discrimination  as  be- 
tween different  localities,  in  respect  to  right  to  sell  liquor;  (15  L.R.A.(N.S.)  945) 
on  constitutional  right  to  prohibit  sale  of  intoxicants;  (114  Am.  St.  Rep.  324, 
325)  on  constitutionality  of  local  option  laws. 
Title  of  statute. 

Approved  in  Com.  v.  Watson,  10  Lane.  L.  Rev.  142,  2  Pa.  Dist.  R.  527,  uphold- 
ing title  to  act  regulating  sale  of  liquors;  State  v.  Haas,  2  N.  D.  204,  50  N".  W. 
254,  holding  only  one  subject  embraced  in  act  regulating  sale  of  liquors. 

Cited  in  McPherson  v.  State,  174  Ind.  69,  31  L.R.A.(N.S.)  193,  90  N.  E.  610; 
upholding  title  in  form,  "An  act  to  better  regulate,  restrict  and  control  sale  of 
intoxicating  liquors  and  providing  for  local  option  elections." 

Cited  in  footnote  to  Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  as  to 
sources  from  which  court  will  determine  sufficiency  of  title  of  statute. 


I  L.R.A.  86]  L.  R.  A.  CASES  AS  AUTHORITIES.  12 

Indictment;  allegations  as  to  place. 

Cited  in  Buck  v.  State,  61  N.  J.  L.  529,  39  Atl.  919,  requiring  indictment  for 
selling  liquor  to  aver  place  of  sale. 
General  and  special  legislation. 

Cited  in  State,  Alexander,  Prosecutor,  v.  Elizabeth,  56  N.  J.  L.  77,  23  L.  R. 
A.  528,  28  Atl.  51,  holding  statute  for  licensing  racecourses  void  as  special  regu- 
lation of  internal  affairs  of  towns  and  counties ;  Hoboken  v.  Goodman,  68  N.  J.  L. 
220,  51  Atl.  1092,  sustaining  ordinance  prohibiting  employment  of  bar-maids; 
Ex  parte  Handler,  176  Mo.  388,  75  S.  W.  920,  holding  principle  of  uniformity  not 
offended  by  local  option  liquor  law;  Mix  v.  Nez  Perce  County,  18  Idaho,  706,  32 
L.R.A.(N.S.)  540,  112  Pac.  215;  Gordon  v.  Corning,  174  Ind.  342,  92  N.  E.  59; 
Re  O'Brien,  29  Mont.  538,  75  Pac.  196,  1  A.  &  E.  Ann.  Cas.  373;  Baxter  v.  State. 
49  Or.  357,  88  Pac.  677,— holding  local  option  law  a  general  law. 

Cited  in  footnotes  to  Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which 
holds  local,  act  regulating  sheriff's  fees  in  particular  county;  Hamilton  County  v 
Rasche  Bros.  19  L.  R.  A.  584,  which  holds  special  legislation  on  subject  of  re- 
funding taxes  not  allowable. 

Distinguished  in  Meehan  v.  Board  of  Excise,  75  N.  J.  L.  559,  70  Atl.  363,  hold- 
ing  law   regulating   sale   of   intoxicating   liquor,   commonly   known    as    "Bishops 
Law"  not  unconstitutional   as   being   special   law   regulating   internal   affairs   of 
municipalities. 
Classification   by  population. 

Approved  in  State  ex  rel.  Warner  v.  Hoagland,  51  N.  J.  L.  67,  16  Atl.  166,  hold- 
ing classification  of  cities  on  basis  of  population  in  act  abolishing  offices  valid; 
State  ex  rel.  Boorum  v.  Connelly,  66  N.  J.  L.  208,  88  Am.  St.  Rep.  469,  48  Atl.  955, 
holding  act  changing  time  of  elections  in  all  cities  of  state  valid;  Hudson  County 
v.  Clarke,  65  N.  J.  L.  278,  47  Atl.  478,  holding  valid  classification  by  population, 
in  act  fixing  fees  or  salary  of  specified  county  oflicers;  State,  Lewis,  Prosecutor,  v. 
Moore,  54  N.  J.  L.  123,  22  Atl.  993,  holding  valid  classification  by  population 
of  municipalities  in  act  for  supplying  them  with  water;  State  v.  Clayton,  53 
N.  J.  L.  281,  10  Atl.  1026,  holding  valid  a  classification  by  population  of  bor- 
oughs to  be  created. 

Cited  in  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind.  460,  14  L.  R.  A.  576, 
29  N.  E.  595,  holding  invalid  classification  of  cities  according  to  enumeration  of 
school  children,  in  act  relating  to  police  force;  State,  Dexheimer,  Prosecutor,  v. 
Orange,  60  N.  J.  L.  113,  36  Atl.  706,  holding  unconstitutional  a  classification  by 
population  in  act  for  consolidating  offices  in  cities;  Ross  v.  Essex  County,  69 
N.  J.  L.  292,  55  Atl.  310,  holding  legislature  may  divide  counties  on  the  basis 
of  their  population  for  purpose  of  enabling  the  more  populous  ones  to  lay  out 
public  parks. 

Distinguished  in  State  ex  rel.  Dempsey  v.  Newark,  53  N.  J.  L.  9,  10  L.  R.  A. 
701,  20  Atl.  886,  holding  statute  general  in  terms  rendered  special  by  second  act 
limiting  its  operation  to  one  city;  Wanser  v.  Hoos,  60  N.  J.  L.  529,  64  Am.  St. 
Rep.  600,  38  Atl.  449  (approved  in  dissenting  opinion),  holding  act  changing 
time  of  elections  in  cities  of  first  class  void. 
Delegation  of  power;  submission  to  popular  vote. 

Approved  in  Re  Cleveland,  52  N.  J.  L.  190,  7  L.  R.  A.  432,  19  Atl.  18,  Affirming 
51  N.  J.  L.  322,  18  Atl.  67  (distinguished  in  dissenting  opinion),  holding  gen- 
eral statute  creating  municipal  powers  not  rendered  special  by  provision  for 
submitting  to  acceptance  by  local  popular  vote;  De  Hart  v.  Atlantic  City,  62 
N.  J.  L.  587,  41  Atl.  687,  holding  act  granting  municipal  powers  not  unlawful 
delegation  of  power  because  of  provision  for  adoption  in  particular  locality; 


13  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  86 

State  ex  rel.  Warner  v.  Hoagland,  51  N.  J.  L.  73,  16  Atl.  166,  holding  statute 
for  abolishing  offices  in  cities  of  specified  population  not  rendered  special  by  pro- 
vision for  submitting  to  acceptance  by  popular  vote;  Feek  v.  Bloomingdale,  82 
Mich.  416,  10  L.  R.  A.  77,  47  N.  W.  37  (criticized  in  dissenting  opinion),  holding 
local  option  law  not  unlawful  delegation  of  power;  State,  Riley,  Prosecutor,  v. 
Trenton,  51  X.  J.  L.  500,  5  L.  R.  A.  353,  18  Atl.  116,  holding  that  legislature  may 
delegate  to  municipal  department  authority  to  make  police  regulations  over 
liquor  traffic;  State  ex  rel.  Witter  v.  Forkner,  94  Iowa,  11,  28  L.  R.  A.  210,  62 
N.  W.  772  (criticized  in  dissenting  opinion),  holding  act  suspending  penalties 
for  sales  of  liquor  on  consent  of  local  authorities  not  unlawful  delegation  of 
power;  State,  Xoonan,  Prosecutor,  v.  Hudson  County,  52  N.  J.  L.  400,  20  Atl. 
255,  Affirming  51  N.  J.  L.  456,  18  Atl.  117,  holding  provision,  in  statute  for 
laying  out  road,  for  submission  to  popular  vote  not  unlawful  delegation  of  power; 
Mathis  v.  Jones,  84  Ga.  807,  11  S.  E.  1018,  holding  general  an  optional  system 
of  fence  law  having  uniform  operation  throughout  the  state. 

Cited  in  Thalheimer  v.  Maricopa  County,  11  Ariz.  435,  94  Pac.  1129;  State  ex 
rel.  Crothers  v.  Barber,  19  S.  D.  11,  101  N.  W.  1078;  Fouts  v.  Wood  River,  46  Or. 
501,  1  L.R.A.(N.S.)  487,  81  Pac.  370,  7  A.  &  E.  Ann.  Gas.  1160,— holding  legisla- 
ture may  enact  a  law  and  make  its  operation  depend  upon  the  contingency  of 
the  popular  vote;  St.  Benedict's  Abbey  v.  Marion  County,  50  Or.  415,  93  Pac. 
231,  holding  law  is  not  local  or  special  that  is  applicable  throughout  the  state, 
even  though  its  operation  in  any  locality  is  made  to  depend  upon  a  local  con- 
tingency, or  a  particular  expediency  to  be  ascertained  by  a  public  vote  in  the 
locality  or  by  petition  or  adjudication  of  a  court  or  other  authority  authorized 
by  act;  Wilson  ex  rel.  Booth  v.  McGuinness,  78  N.  J.  L.  381,  75  Atl.  455,  holding 
civil  service  law  void  in  so  far  as  it  is  made  to  take  effect  in  municipalities  on 
its  adoption  by  governing  body  thereof;  State  ex  rel.  Van  Alstine  v.  Frear,  142 
Wis.  356,  125  N.  W.  961  (dissenting  opinion),  on  instances  of  local  option  laws 
sustained  reluctantly  and  by  divided  courts. 

Cited  in  footnote  to  Territory  ex  rel.  McMahon  v.  O'Connor,  3  L.  R.  A.  355, 
holding  valid,  provision  for  leaving  to  each  county  prohibition  of  sale  of  liquor. 

Cited  in  note  (1  L.R.A. (X.S.)  483)  on  local  option  law  as  unconstitutional 
delegation  of  power. 

Distinguished  in  State  ex  rel.  Childs  v.  Copeland,  66  Minn.  320,  34  L.  R.  A.  780, 
61  Am.  St.  Rep.  410,  69  N.  W.  27,  holding  invalid,  local  option  law  to  take  effect 
in  each  city  on  its  adoption  thereby;  Gilhooly  v.  Elizabeth,  66  N.  J.  L.  486,  49 
Atl.  1106,  holding  act  empowering  governor  to  district  or  redistrict  city  wards 
unlawful  delegation  of  power;  Robert  J.  Boyd  Paving  &  Contracting  Co.  v.  Ward, 
28  d.  C.  A.  672,  55  U.  S.  App.  730,  85  Fed.  32,  holding  void  act  authorizing  city 
accepting  its  provisions  to  assess  cost  of  constructing  sewers  on  property  benefited. 
Relegation  of  legislation  generally. 

Cited  in  Southern  R.  Co.  v.  Meltor,  133  Ga.  302,  65  S.  E.  665  (dissenting  opin- 
ion), as  to  what  constitutes  delegation  of  legislative  power;  Smith  v.  Hightstown, 
71  X.  J.  L.  279,  57  Atl.  901,  as  to  validity  of  delegation  of  power  to  license 
inns:  Rutten  v.  Paterson,  73  X.  J.  L.  471,  64  Atl.  573,  holding  statute  providing 
that  whenever  in  any  city  of  the  second  class,  fifty  per  cent  or  more  of  the 
board  of  aldermen  or  other  governing  body  shall  petition  the  mayor  or  chief 
executive  officer  of  such  city  that  a  change  of  ward  lines  is  necessary  for  the 
proper  representation  of  the  residents  of  the  city,  it  shall  be  the  duty  of  the 
chief  executor  to  appoint  three  resident  commissioners  to  resubdivide  the  city 
not  unconstitutional  as  delegating  legislative  power  to  private  citizens;  Wright 
v.  Cunningham,  115  Tenn.  458,  91  S.  W.  293,  as  to  difference  between  valid  and 
void  delegation  of  legislative  power. 


1  L.R.A.  86]  L.  R.  A.  CASES  AS  AUTHORITIES.  14 

Separation   of  powers   of  government. 

Cited  in  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  494,  88  N.  W. 
1101,  holding  non judicial  powers  not  conferred  on  probate  judge  by  inheritance 
tax  act;  Re  Ridgefield  Park,  54  N.  J.  L.  291,  23  Atl.  674,  holding  the  denning  of 
municipal  boundaries  a  legislative  power  which  cannot  "be  delegated  to  the  judi- 
ciary; Schwarz  v.  Dover,  68  N.  J.  L.  580,  53  Atl.  214,  holding  appointment  of 
excise  commissioners  legislative,  rather  than  judicial,  function;  Moreau  v. 
Monmouth  County,  68  N.  J.  L.  483,  53  Atl.  208,  holding  invalid,  act  leaving  to 
justice  of  court  to  determine  necessity  for,  and  site  of,  additional  court  accommo- 
dation; Palmyra  Twp.  v.  Pennsylvania  R.  Co.  62  N.  J.  Eq.  611,  50  Atl.  369,  hold- 
ing legislative  functions  not  conferred  on  courts  by  provision  for  their  deter- 
mining necessity  of  additional  safeguards  at  grade  crossings;  Re  Newark  Plank 
Road  &  Bridges,  63  N.  J.  Eq.  718,  53  Atl.  5,  assuming  duty  placed  on  court  of 
chancery  to  apportion  expense  of  bridge  built  over  river  between  two  counties, 
because  not  assigned  to  any  other  governmental  department;  State  ex  rel. 
Young  v.  Brill,  100  Minn.  520,  111  N.  W.  639,  10  A.  &  E.  Ann.  Cas.  425,  holding 
act  requiring  judges  of  district  court  to  appoint  members  to  county  board  of 
control  unconstitutional;  State  ex  rel.  Patterson  v.  Bates,  96  Minn.  118,  113  Am. 
St.  Rep.  612,  104  N.  W.  709,  holding  fact  that  a  statute  conferred  powers  or 
imposed  duties  upon  a  judicial  or  executive  officer  which  were  not  strictly  judicial 
or  executive  or  which  were  of  an  ambiguous  or  mixed  character  did  not  render 
it  void;  Eckert  v.  Perth  Amboy  &  W.  R.  Co.  66  N.  J.  Eq.  440,  57  Atl.  438,  holding 
statute  providing  that  whenever  a  condition  arises  which  makes  it  appear  to 
the  satisfaction  of  the  chancellor  after  hearing  a  petition  filed  by  the  governing 
body  of  any  municipality  that  it  is  reasonable  and  necessary  for  the  security  of 
human  life  that  gates  or  bars  should  be  erected  or  a  flagman  stationed  at  a 
railway  crossing,  the  court  shall  make  an  order  to  that  effect,  is  not  unconstitu- 
tional as  conferring  legislative  power  upon  judiciary. 

Cited  in  footnotes  to  State  ex  rel.  Godard  v.  Johnson,  49  L.  R.  A.  662,  which 
holds  void  an  act  empowering  court  to  determine  reasonableness  of  freight  rates ; 
Zanesville  v.  Zanesville  Teleg.  &  Teleph.  Co.  52  L.  R.  A.  150,  which  holds  power 
to  order  telephone  line  in  highway  may  be  conferred  on  court;  Re  Davies,  56 
L.  R.  A.  855,  holding  nonjudicial  duties  not  imposed  by  act  for  order  to  examine 
witnesses;  Norwalk  Street  R.  Co.'s  Appeal,  39  L.  R.  A.  794,  which  holds  the 
approval  of  the  location  and  construction  of  a  street  railway  not  a  judicial 
power;  Election  Supers,  v.  Todd,  62  L.  R.  A.  809,  holding  that  court  cannot  be 
required  to  pass  on  petition  to  submit  question  of  sale  of  liquor  to  voters. 
County  as  municipal  corporation. 

Cited  in  Union  Stone  Co.  v.  Hudson  County,  71  N.  J.  Eq.  664,  65  Atl.  466,  as  to 
county  being  municipal  corporation. 

i  L.  R.  A.  104,  UNITED  STATES  v.  MATTHEWS,  35  Fed.  890. 
Embezzlement  of  decoy  letters. 

Cited  in  Goode  v.  United  States,  159  U.  S.  669,  40  L.  cd.  300,  16  Sup.  Ct.  Rep. 
136,  holding  it  no  defense  that  a  letter  from  which  money  taken  was  a  decoy 
letter  with  fictitious  address. 

Cited  in  notes  (25  L.R.A.  347)  on  instigation  or  consent  to  crime  for  purpose 
of  detecting  criminal  as  defense;  (58  Am.  St.  Rep.  603)  on  stealing  or  embezzling 
letters. 

Distinguished  in  Walster  v.  United  States,  42  Fed.  896,  holding  letter  intended 
to  be  conveyed  by  mail  subject  of  embezzlement  although  a  decoy  letter;  United 
States  v.  Wight,  38  Fed.  110,  holding  decoy  letter  addressed  to  fictitious  person 
and  deposited  in  pillar  box  is  subject  of  embezzlement  by  postal  employee;  Grimm 


15  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  111 

v.  United  States,  156  U.  S.  610,  39  L.  ed.  552,  15  Sup.  Ct.  Rep.  470,  holding 
sending  of  letter  giving  notice  where  obscene  pictures  may  be  obtained  a  crime, 
though  sent  in  reply  to  letter  from  government  detective  writing  under  assumed 
name. 

Criticized  in  United  States  v.  Dorsey,  40  Fed.  753,  holding  decoy  letter  subject 
of  embezzlement  by  postal  employee  when  delivered  to  him  to  be  carried  as  other 
mail  matter. 

Disapproved  in  United  States  v.  Bethea,  44  Fed.  802,  holding  decoy  package 
addressed  to  fictitious  person  put  in  mail  with  intent  to  intercept  before  des- 
tination reached,  subject  of  embezzlement  by  postal  employee. 

1  L.  R.  A.  108,  SEDDON  v.  VIRGINIA,  T.  &  C.  STEEL  &  I.  CO.  36  Fed.  6. 
Grounds   for  removal   of  cause. 

Cited  in  McClelland  v.  McKane,  154  Fed.  165,  holding  a  Federal  court  is  not 
given  jurisdiction  on  the  ground  of  diversity  of  citizenship  of  a  suit  between  a 
citizen  of  a  state  and  a  citizen  of  a  territory. 

Cited  in  footnote  to  First  Nat.  Bank  v.  Merchants  Bank,  2  L.  R.  A.  469,  which 
holds  removable  action  between  citizens  of  different  states. 

Cited   in   notes    (11   L.R.A.   568)    on   removal   of  cause  for  prejudice   or   local 
influence;    (5   L.R.A.(N.S.)    85)    on  removal  of  cause  because  of  separable  con- 
troversy. 
Petition    for    removal    of   cause. 

Cited  in  Illinois  C.  R.  Co.  v.  Jones,  118  Ky.  165,  80  S.  W.  484,  holding  all  neces- 
sary facts  to  show  prima  facie  a  right  in  petitioner  for  the  removal  must  be 
set  out,  not  as  conclusions  of  law,  or  such  necessary  facts  must  affirmatively 
and  explicitly  appear  elsewhere  in  the  record  when  application  for  removal  is 
made. 

Cited  in  footnote  to  Hern  don  v.  JEtna.  F.  Ins.  Co.  10  L.  R,  A.  54,  as  to  sufficiency 
of  petition  for  removal. 

Cited  in  note  (1  L.  R.  A.  66)  on  petition  for  removal  on  ground  of  diverse 
citizenship. 

1  L.  R.  A.  110,  NORFOLK  &  W.  R.  CO.  v.  IRVINE,  85  Va.  217,  7  S.  E.  233. 

Rt-«  illations   as  to   liiiu'utiuc. 

Cited  in  note  (11  L.  R.  A.  761)  upon  regulations  as  to  baggage  for  protection 
of  carrier. 

1  L.  R,  A.  Ill,  BLOOMER  v.  TODD,  3  Wash.  Terr.  599,  19  Pac.  135. 
Female   suffrage. 

Cited  in  Gougar  v.  Timberlake,  148  Ind.  41,  37  L.  R.  A.  648,  62  Am.  St.  Rep. 
487,  46  N.  E.  339,  holding  women  not  entitled  to  suffrage  under  grant  to  all 
"male"  citizens ;  Isaacs  v.  McNeil,  11  L.  R.  A.  255,  44  Fed.  33,  holding  election 
officers  not  liable  for  refusing  woman  right  to  vote  in  reliance  on  decision  of 
court;  Atty.  Gen.  v.  Abbott,  121  Mich.  547,  47  L.  R.  A.  96,  80  N.  W.  372,  holding 
woman  ineligible  to  office,  under  Constitution  silent  as  to  qualifications  to  office 
except  such  as  existed  under  common  law. 

Cited  in  footnotes  to  People  ex  rel.  Ahrens  v.  English,  15  L.  R,  A.  131,  hold- 
ing act  giving  women  right  to  vote  for  school  officers  inapplicable  to  election 
of  school  superintendent;  Plummer  v.  Yost,  19  L.  R.  A.  110,  holding  valid,  act 
giving  women  right  to  vote  for  school  board  of  district;  State  ex  rel.  Peters  v. 
Davidson.  20  L.  R.  A.  311,  holding  woman  ineligible  to  office  of  notary  public. 

Cited  in  note  (21  L.  R.  A.  663)  upon  right  of  women  to  vote. 


1  L.R.A.  Ill]  L.  R.  A.  CASES  AS  AUTHORITIES.  16 

Election   laws,   generally. 

Cited  in  Solon  v.  State,  54  Tex.  Grim.  Rep.  293,  114  S.  W.  349  (dissenting 
opinion),  as  to  right  of  legislature  to  extend  or  restrict  the  right  of  suffrage 
as  fixed  by  Constitution. 

Cited  in  footnotes  to  State,  Ransom,  Prosecutor,  v.  Black,  16  L.  R.  A.  769, 
holding  reasonable  regulations  to  secure  secrecj'  of  ballot  do  not  deprive  of  right 
to  vote;  Detroit  v.  Rush,  10  L.  R.  A.  171,  upholding  election  law  although  re- 
striction of  right  to  vote  possible  thereunder. 

Cited  in  notes   (10  L.  R.  A.  227)   on  registration  of  votes;    (7  L.  R.  A.  99)   on 
rights  of  voters  to  be  registered;   (8  L.  R.  A.  337,  338)  on  registration  and  quali- 
fications of  voters;   (53  L.  R.  A.  660)  on  Federal  control  of  elections. 
Interpretation    of    Statutes   and    Constitutions. 

Cited  in  State  v.  Narragansett,  16  R.  I.  434,  3  L.  R.  A.  296,  16  Atl.  901,  holding 
public  district  not  within  constitutional  provisions  as  to  mode  of  passing  act 
creating  corporation;  Moses  v.  Summersett,  58  Wash.  406,  108  Pac.  943,  con- 
struing act  authorizing  county  aid  to  fairs  as  not  authorizing  aid  to  state  fair. 

1  L.  R.  A.  118,  PINE  COUNTY  v.  WILLARD,  39  Minn.  125,  12  Am.  St.  Rep. 

622,  39  N.  W.  71. 
Liability  of  surety  for  defaults   not  occurring  during  term. 

Cited  in  Milford  v.  Morris,  91  Iowa,  201,  51  Am.  St.  Rep.  338,  59  N.  W.  274, 
holding  sureties  on  second  term  bond  not  bound  by  settlement  at  end  of  first 
term,  where  money  not  produced;  Dirks  v.  Juel,  59  Neb.  358,  80  N.  W.  1045, 
holding  sureties  on  first  term  bond  of  court  clerk  liable  for  funds  deposited  to  his 
individual  account,  although  in  bank  at  end  of  term;  Board  of  Administrators  v. 
McKowen,  48  La.  Ann.  257,  55  Am.  St.  Rep.  275,  19  So.  328,  holding  sureties  on 
first  term  bond  of  public  officer  not  liable  for  defalcation  in  second  term;  People 
v.  Bowman,  147  111.  App.  73,  holding  sureties  on  separate  bonds  of  public  officers 
for  each  term  liable  only  for  default  during  term  for  which  their  bond  was  given. 

Cited  in  footnotes  to  King  County  v.  Ferry,  19  L.  R.  A.  500,  holding  default  of 
officer  after  time  for  which  elected  riot  covered,  though  term  of  office  extended; 
McMullen  v.  Winfield  Bldg.  &  L.  Asso.  56  L.  R.  A.  924,  holding  sureties  liable  for 
prior  defaults;  First  National  Bank  v.  National  Surety  Co.  66  L.R.A.  777,  which 
holds  last  surety  on  bond  of  bank  clerk  serving  during  series  of  years  covered  by 
defendant  binds  guaranteeing  bank  against  "loss"  through  his  acts  not  liable 
for  any  amount  because  of  falsifying  accounts  of  customer  so  as  to  give  him 
fictitious  credit  where  on  appropriating  deposits  of  customer  made  during  his 
term  to  checks  during  same  term  drafts  do  not  exceed  deposits. 

Cited  in  notes    (66  L.R.A.   777)    on  liability  of  sureties  on  official  bonds  for 
second  term  for  delinquencies  of  first  term;    (23  L.R.A.(N.S.)    133)    on  liability 
of  sureties  of  public  officer  for  default  during  prior  term. 
Surety's   liability   for   misapplication   to   prior   defalcation. 

Cited  in  American  Bonding  &  Trust  Co.  v.  Milwaukee  Harvester  Co.  91  Md. 
743,  48  Atl.  72,  holding  sureties  on  agent's  bond  liable  for  his  application  of 
moneys  collected  by  him  to  prior  collections  made  for  principal;  Rockford  Ins. 
Co.  v.  Rogers,  15  Colo.  App.  27,  60  Pac.  956,  holding  company  could  not,  by  ap- 
plying moneys  received  from  agent  to  prior  indebtedness,  make  sureties  liable; 
People  v.  Hammond,  109  Cal.  393,  42  Pac.  36,  holding  sureties  on  second  term 
bond  of  tax  collector  liable  for  funds  collected  in  second  term  applied  on  prior 
defalcations;  Walker  County  v.  Fidelity  &  D.  Co.  47  C.  C.  A.  19,  107  Fed.  855, 
holding  surety  for  tax  collector  not  entitled  to  credit  for  money  turned  in  after 
execution  of  bond,  applied  to  prior  collections. 

Disapproved  and  held  obiter  in  Merchants'  Ins.  Co.  v.  Herber,  68  Minn.  424, 


17  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  120 

71  N.  W.  624,  holding  surety  entitled  to  have  applied  to  payment  of  bond,  money 
paid  to  creditor  for  collection  of  which  bond  given. 
Burden  of  proof  as  to  time  of  principal's  default. 

Cited  in  Board  of  Education  v.  Robinson,  81  Minn.  311,  83  Am.  St.  Rep.  374, 
84  N.  W.  105,  holding  sureties  on  second  term  bond  of  public  officer  must  show 
defalcation  occurred  in  first  term. 
Failure  to  inform  surety  of  prior  default. 

Cited  in  Hallettsville  v.  Long,  11  Tex.  Civ.  App.  183,  32  S.  W.  567,  holding  city 
officials  failure  to  communicate  prior  default  of  tax  collector  no  defense;  Hogue 
v.  State,  28  Ind.  App.  288,  62  N.  E.  656,  holding  re-election  of  treasurer  of  school 
board  after  default  no  defense  to  sureties;  Independent  School  Dist.  v.  Hubbard, 
110  Iowa,  63,  80  Am.  St.  Rep.  271,  81  N.  W.  241,  holding  public  officials  need 
not  disclose  prior  defalcation  to  sureties  on  new  bond  of  re-elected  treasurer; 
Watertown  Sav.  Bank  v.  Mattoon,  78  Conn.  393,  62  Atl.  622,  holding  that  failure 
of  savings  bank  directors  to  disclose  to  sureties  of  treasurer  his  prior  defalcation 
does  not  relieve  sureties  from  liability. 

Cited  in  footnote  to  Fidelity  Mut.  Life  Asso.  v.  Dewey,  54  L.  R.  A.  945,  hold- 
ing sureties  not  liable  where  principal  failed  to  require  weekly  reports  by  agent. 

Cited  in  note  (12  L.R.A. (N.S.)  253)  on  duty  of  obligee  in  fidelity  bond  to  dis- 
close prior  defalcation. 
Negligence  of  other  officers  as  defense  to  sureties. 

Cited  in  State  ex  rel.  Bell  v.  United  States  Fidelity  &  G.  Co.  236  Mo.  369,  139 
S.  W.  163,  holding  that  failure  of  board  of  managers  of  state  hospital  to  discover 
prior  defalcations  of  treasurer  does  not  relieve  his  sureties  from  liability. 

Cited  in  note  (90  Am.  St.  Rep.  206)  on  negligence  and  wrong  of  other  officers 
as  no  defense  to  sureties  on  official  bonds. 

1  L.  R.  A.  120,  CRAMTON  v.  VALIDO  MARBLE  CO.  60  Vt.  291,  15  Atl.  153. 
Conflict   of  laws   as  to  assignment   for   creditors. 

Cited  in  Hazen  v.  Lyndonville  Nat.  Bank,  70  Vt.  554,  67  Am.  St.  Rep.  680,  41 
Atl.  1046,  holding  assignee  may  enjoin  fellow  citizen  from  attaching  in  other 
state  stock  of  nonresident  corporation  included  in  assignment. 

Cited  in  footnotes  to  Birdseye  v.  Baker,  2  L.  R.  A.  99,  holding  assignment  out- 
side of  state  not  void  because  schedule  required  not  annexed;  Elton  v.  O'Connor, 
33  L.  R.  A.  524,  holding  invalidity  of  part  of  insolvency  law  impairing  obligation 
of  contract  does  not  invalidate  part  as  to  transfer  of  property  to  assignee;  Re 
Dalpay,  6  L.  R.  A.  110,  holding  assignment  with  preferences  in  one  state  not 
valid  as  to  property  in  another. 

Cited  in  notes  (23  L.  R.  A.  38)  upon  transfer  of  property  out  of  the  state  by 
bankruptcy  or  insolvency  proceedings  or  assignment  for  creditors;  (17  L.  R.  A. 
86)  upon  the  law  of  comity  as  affecting  insolvent  laws  of  states;  (17  L.  R.  A. 
84)  upon  state  insolvent  laws  having  no  extraterritorial  effect;  (37  L.  R.  A.  484) 
on  effect  of  insolvency  statutes  upon  a  mortgage  or  sale  preferring  creditors. 
Measure  of  damages  for  conversion. 

Cited  in  Davis  v.  Bowers  Granite  Co.  75  Vt.  289,  54  Atl.  1084,  holding  court 
can  permit  plaintiff  to  reduce  verdict  to  amount  declared  for  and  then  render 
judgment. 

Cited  in  footnotes  to  Wright  v.  Bank  of  the  Metropolis,  1  L.  R.  A.  289,  holding 
as  measure  of  damages  for  conversion  of  corporate  stock  cost  of  repurchasing 
within  reasonable  time,  less  debt  secured,  with  interest;  Woods  v.  Nichols,  48 
L.  R.  A.  773,  holding  damages  in  trover  by  one  retaining  property  as  security 
measured  by  balance  due,  less  depreciation  by  authorized  use. 
L.R.A.  Au.  Vol.  L— 2. 


1  L.R.A.  120]  L.  R.  A.  CASES  AS  AUTHORITIES.  18 

Distinguished  in  Gensburg  v.  Marshall  Field  &  Co.  104  Iowa,  602,  74  X.  W.  3. 
holding  damages  for  converting  personal  property  measured  by  market  value, 
with  interest. 

Necessity   of   demand    for   return    of    property    to    sustain    action    for    con- 
version. 

Cited  in  Jackman  v.  Eau  Claire  Nat.  Bank,  125  Wis.  475,  115  Am.  St.  Rep.  955, 
104  N.  W.  98,  holding  where  defendant  put  it  out  of  his  power  to  return  the 
property  no  demand  was  necessary. 
Modification   of  judgment  as  entitling:  party  to  costs. 

Cited  in  Davis  v.  Goulette,  81  Vt.  259,  69   Atl.  827,  holding  the  trial  cdurt 
having  inadvertently  rendered  judgment  against  the  garnishee  for  a  larger  sum 
than  that  against  the  defendant,  the  garnishee  was  entitled  to  his  costs  in  Su- 
preme Court  upon  their  filing  a  remittitur  for  the  excess. 
Evidence   as    to    value. 

Cited  in  Belka  v.  Allen,  82  Vt.  461,  74  Atl.  91,  holding  in  an  action  by  a  buyer 
against  a  seller  for  deceit  in  the  sale,  evidence  of  seller's  offer  to  resell  the  prop- 
erty to  the  buyer  for  one  half  the  former  price  is  admissible  both  to  show  fraud 
and  as  bearing  on  the  question  of  damages  by  affording  an  index  to  the  value  of 
the  property;  Griffin  v.  Martel,  77  Vt.  27,  58  Atl.  788,  holding  cost  of  the  goods 
some  evidence  of  their  present  value. 

1  L.  R.  A.  125,  ALEXANDER  v.  ALEXANDER,  85  Va.  353,  7  S.  E.  335. 
Who  may  be  considered  on  appeal. 

Cited  in  Nicholson  v.  Gloucester  Charity  School,  93  Va.  103,  24  S.  E.  916, 
holding  parties  whose  appeal  dismissed,  standing  on  same  ground  with  those  ap- 
pealing, should  have  rights  settled;  Roanoke  v.  Blair,  107  Va.  647,  60  S.  E.  75, 
holding  where  the  parties  appealing  and  those  not  appealing  stand  upon  the 
same  ground,  and  their  rights  are  involved  in  the  same  question  and  equally 
affected  by  same  judgment  or  decree  the  appellate  court  will  consider  their 
rights. 
MnltifarionsnesB. 

Cited  in  Benson  v.  Keller,  37  Or.  125,  60  Pac.  918,  declaring  that  whether 
multifariousness  exists  must  be  left  largely  to  discretion  of  court;  Carey  v.  Cof- 
fee-Stemming Mach.  Co.  1  Va.  Dec.  866,  20  S.  E.  778,  holding  it  not  multifarious 
for  shareholders  to  join  in  suit  against  company  and  its  directors  to  cancel  stock 
subscriptions  for  fraud;  Alabama  G.  S.  R.  Co.  v.  Prouty,  149  Ala.  77,  43  So.  352, 
holding  it  is  the  joinder  of  different  and  distinct  and  independent  matters;  Brown 
v.  Tulley,  25  R.  I.  584,  57  Atl.  380,  holding  rule  against  multifariousness  will  not 
be  applied  where  the  circumstances  of  the  case  make  a  combination  of  causes  of 
or  a  joinder  of  parties  more  convenient  for  them  than  a  separation  would  be. 

Cited  in  footnote  to  Emerson  v.  Nash,  70  L.R.A.  326,  which  holds  making  of 
contract  between  two  or  more  persons  on  each  side  which  creates  a  situation 
involving  presently  or  proximately  separate  rights  on  one  side  each  of  which 
with  violation  thereof  by  other  side  would  constitute  complete  ground  of  com- 
plaint for  judicial  redress  a  "transaction"  within  meaning  of  statute  permitting 
joinder  of  causes  of  action  arising  from  same  transaction. 
Suit  by  wife  against  husband. 

Cited  in  Mynes  v.  Mynes,  47  W.  Va.  695,  35  S.  E.  935,  holding  statute  of  limita- 
tions, after  commencing  to  run,  not  interrupted  by  wife's  disability,  if  any,  to  sue 
husband. 

Cited  in  note  (6  L.  R.  A.  507)  upon  suite  against  firm  to  which  husband  be- 
longs. 


19  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  131 

Distinguished  in  Bennett  v.  Bennett,  37  W.  Va.  399,  38  Am.  St.  Rep.  47,  16 
S.  E.  638,  holding  that  wife  cannot  sue  husband  at  common  law,  but  that  con- 
fession of  judgment  by  him  to  her  is  good  as  against  his  creditors. 
Married    woman's   act    as    affecting   husband's    rights   in   wife's   property. 

Cited  in  Keagy  v.  Trout,  85  Va.  400,  7  S.  E.  329,  holding  property  left  by  will 
to  wife  before  married  woman's  act  could  not  be  reduced  to  husband's  possession 
subsequent  thereto;  Trapnell  v.  Conklyn,  37  W.  Va.  257,  38  Am.  St.  Rep.  30, 
16  S.  E.  570,  favoring  doctrine  that  husband  had  no  vested  right  in  wife's  prop- 
erty before  passage  of  married  woman's  act;  Guernsey  v.  Lazear,  51  W.  Va.  330, 
41  S.  E.  405,  holding  that  husband  has  no  tenancy  by  curtesy  initiate  in  wife's 
separate  estate  on  which  judgment  against  him  may  attach;  Welsh  v.  Solen- 
berger,  85  Va.  447,  8  S.  E.  91,  holding  husband  has  no  tenancy  by  curtesy  in 
wife's  separate  property  purchased  since  married  woman's  act  subject  to  judg- 
ment against  him;  State  ex  rel.  Thompson  v.  McAllister,  38  W.  Va.  512,  24 
L.  R.  A.  353,  18  S.  E.  770  (dissenting  opinion),  as  to  husband's  estate  in  wife's 
separate  estate  during  her  lifetime. 

Cited  in  footnote  to  Moore  v.  Darby,  13  L.  R.  A.  346,  holding  wife's  share  in 
proceeds  of  land  sold  under  partition  which  vested  after  act,  hers,  not  her  hus- 
band's. 

Cited  in  notes  (7  L.  R.  A.  693)  as  to  effect  of  statute  upon  husband's  tenancy 
by  curtesy;  (19  L.  R.  A.  259)  as  to  power  of  legislature  to  destroy  right  of 
curtesy;  (19  L.  R.  A.  259)  as  to  power  of  legislature  to  destroy  rights  in  wife's 
personal  property. 

Distinguished  and  questioned  in  Leete  v.  State  Bank,  115  Mo.  202,  21  S.  W.  788, 
holding  married  woman's  act  did  not  cut  off  husband's  vested  right  to  reduce 
to  possession  property  left  by  will  before  act  passed. 
Legislative    abolition    of    dower    or    curtesy. 

Cited  in  Griswold  v.  McGee,  102  Minn.  125,  112  N.  W.  1020,  12  A.  &  E.  Ann. 
Cas.  186,  holding  statutory  right  which  wife  has  in  lands  of  her  husband  during 
coverture,  is  inchoate  and  contingent,  and  may,  at  any  time  before  it  becomes 
consummate  by  death  of  the  husband,  be  diminished  or  entirely  taken  away  by 
the  legislature. 

Cited  in  notes  (84  Am.  St.  Rep.  441,  445)  on  constitutionality  of  statutes 
affecting  husband's  estate  in  wife's  personal  property;  (112  Am.  St.  Rep.  595) 
on  right  of  legislature  to  abolish  tenancy  by  the  curtesy;  (128  Am.  St.  Rep.  488) 
on  statutes  abolishing  estates  of  tenancy  by  the  curtesy. 

1  L.  R.  A.  131,  PIDCOCK  v.  UNION  P.  R.  CO.  5  Utah,  612,  19  Pac.  191. 
AVhat   perils  assumed  by  servant. 

Cited  in  Wright  v.  Southern  P.  Co.  14  Utah,  393,  46  Pac.  374,  holding  switch- 
man did  not  assume  peril  of  not  employing  fireman  on  engine;  Mangum  v.  Bullion, 
B.  &  C.  Min.  Co.  15  Utah,  549,  50  Pac.  834,  holding  mine  laborer  did  not  assume 
risk  of  being  lowered  in  cage  with  defective  machinery;  Leach  v.  Oregon  Short 
Line  R.  Co.  29  Utah,  303,  110  Am.  St.  Rep.  708,  81  Pac.  90,  holding  servant 
assumes  only  the  natural  and  ordinary  risks  and  damages  incident  to  the  em- 
ployment, and  such  other  unusual  or  extraordinary  risks,  due  to  defects  In  ap- 
pliances and  equipment,  of  which  he  knows,  or  which  are  so  obvious  that  he  will 
be  presumed  to  have  known  of  them. 

Cited  in  footnotes  to  Minty  v.  Union  P.  R.  Co.  4  L.R.A.  409,  holding  traveling 
auditor  of  railroad  assumes  ordinary  risks  incident  to  employment;  Brazil  Block 
Coal  Co.  v.  Gaffney.  4  L.R.A.  851,  holding  inexperienced  boy  does  not  assume  risk 
of  coupling  cars;  Taylor  v.  Evansville  &  T.  H.  R.  Co.  6  L.R.A.  585,  holding  risk 
created  by  vice  principal's  negligence  in  making  work  unsafe  not  assumed. 


1  L.R.A.  131]  L.  R.  A.  CASES  AS  AUTHORITIES.  20 

Cited  in  notes    (12  L.R.A.   342)    on  assumption  of  ordinary  risks  of  employ- 
ment;  (28  L.R.A. (N.S.)  1233)  as  to  whether  servant  may  assume  risk  of  dangers 
created  by  master's  negligence. 
Posts,    switch-stands    and    the    like    near    to    tracks. 

Cited  in  Murphy  v.  Wabash  R.  Co.  115  Mo.  122,  21  S.  W.  862,  holding  peril  of 
fence  within  18  inches  of  tender  not  assumed  by  engineer;  Boss  v.  Northern  P. 
R.  Co.  2  N.  D.  136,  33  Am.  St.  Rep.  756,  49  N.  W.  655,  holding  section  hand  did 
not  assume  peril  of  switch  stand  too  near  track;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
v.  Parish,  28  Ind.  App.  202,  91  Am.  St.  Rep.  120,  62  N.  E.  514,  holding  freight 
conductor  on  top  of  car  did  not  assume  risk  of  tree  near  track;  Georgia  P.  R.  Co. 
v.  Davis,  92  Ala.  309,  25  Am.  St.  Rep.  47,  9  So.  252,  holding  brakeman  did  not 
assume  peril  of  projecting  rock  in  cut  unknown  to  him;  Harvey  v.  Texas  &  P.  R. 
Co.  92  C.  C.  A.  237,  166  Fed.  392,  holding  under  statute  a  railroad  engine  hostler 
did  not  as  a  matter  of  law  assume  risk  of  injury  from  roundhouse  post  negli- 
gently set  too  near  track;  McCabe  v.  Montana  C.  R.  Co.  30  Mont.  336,  76  Pac. 
701,  holding  under  the  evidence  the  question  of  whether  a  freight  brakeman  en- 
gaged in  switching  and  who  was  injured  while  mounting  an  engine  by  coming 
in  contact  with  a  switch  stand  placed  near  the  track  assumed  risk  of  injury  was 
one  for  jury. 

Cited  in  footnotes  to  Williamson  v.  Newport  News  &  M.  Valley  Co.  12  L.R.A. 
297,  hloding  brakeman  with  knowledge  of  low  bridge  assumed  the  risk;  McKee 
v.  Chicago,  R.  I.  &  P.  R.  Co.  13  L.R.A.  817,  holding  brakeman  assumed  risk  of 
wing  fence  at  cattle  guard  4  feet  from  rails;  Jacksonville,  T.  &  K.  W.  R.  Co.  v. 
Galvin,  16  L.R.A.  337,  holding  risk  from  lumber  projecting  from  car  assumed 
by  brakeman;  Mensch  v.  Pennsylvania  R.  Co.  17  L.R.A.  450,  holding  bolt  pro- 
jecting from  end  of  car  a  risk  assumed;  Murray  v.  Boston  &  M.  R.  Co.  61  L.R.A. 
495,  holding  risk  from  proximity  of  jigger  stand  to  switch  not  assumed  by  brake- 
man. 
Negligence  In  nse  of  switch  as  question  for  jnry. 

Cited  in  note  (26  L.R.A. (N.S.)  602)  on  negligence  in  use  of  switch  of  par- 
ticular type  or  construction  as  question  for  jury. 

1  L.  R.  A.  133,  NEW  JERSEY  ZINC  &  IRON  CO.  v.  MORRIS  CANAL  &  BKG, 

CO.  44  N.  J.  Eq.  398,  15  Atl.  227. 

Affirmed  without  opinion  in  47  N.  J.  Eq.  598,  22  Atl.  1076. 
Riparian  owner's  rights. 

Cited  in  Hanford  v.  St.  Paul  &  D.  R.  Co.  43  Minn.  116,  7  L.  R.  A.  726,  44 
N.  W.  1144,  holding  riparian  owner's  right  of  property  in  submerged  land  to 
line  of  navigability  severable  and  transferable;  Hobart  v.  Hall,  174  Fed.  455, 
holding  under  the  law  of  Minnesota,  the  state  has  no  proprietary  title  to  navi- 
gable waters  within  the  state  below  low  water  mark,  but  such  title  as  it  has  is 
sovereign  only  held  in  trust  for  the  protection  of  the  public  right  of  navigation 
and  incapable  of  alienation;  Mobile  Transp.  Co.  v.  Mobile,  153  Ala.  418,  13  L.R.A. 
(N.S.)  357,  127  Am.  St.  Rep.  34,  44  So.  976,  holding  on  all  waterways,  whether 
tidal  or  not,  the  riparian  owner  has  the  right  at  common  law  to  dock  out  to 
navigable  water,  subject  to  the  rights  of  navigation  and  the  rules  of  public  con- 
trol; East  Boston  Co.  v.  Com.  203  Mass.  73,  89  N.  E.  236,  17  A.  &  E.  Ann.  Cas. 
146,  holding  in  interpreting  the  phrase  "ordinary  low  water  mark,"  where  the 
distinction  intended  is  between  the  extreme  low  water  mark  and  the  ordinary  or 
common  line  of  low  water,  having  reference  to  all  times  and  seasons,  the  only  way 
to  reach  the  correct  result  is  to  take  the  average  of  low  tides  which  gives  the 
line  of  mean  low  water;  Shamberg  v.  Riparian  Comrs.  72  N.  J.  L.  133,  60  Atl.  43, 
on  rights  of  riparian  owners. 


21  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  140 

Cited  in  footnote  to  Webb  v.  Demopolis,  21  L.  R.  A.  62,  which  holds  upland 
owner's  title  extends  to  low-water  mark. 

Cited  in  notes  (12  L.  R.  A.  639)  on  rights  of  riparian  owners;  (40  L.  R.  A. 
603)  on  the  right  of  owner  of  upland  to  access  to  navigable  water;  (42  L.  R.  A. 
163)  on  title  to  land  under  water;  (12  L.  R.  A.  634)  on  title  to  land  below  high- 
water  line  on  navigable  waters  being  in  state;  (40  L.  R.  A.  638)  upon  right  to 
erect  wharves;  (8  L.R.A.  92)  upon  right  to  construct  piers,  subject  to  control; 
(19  Am.  St.  Rep.  232)  on  rights  of  littoral  and  riparian  owners  in  navigable 
waters. 
Kiiilits  acquired  by  condemnation. 

Cited  in  Delaware,  L.  &  W.  R.  Co.  v.  Breckenridge,  55  N.  J.  Eq.  148,  35  Atl. 
756,  holding  right  acquired  by  condemnation  an  easement  only;  Minnesota  Canal 

6  Power  Co.  v.  Koochiching  Co.  97  Minn.  435,  5  L.R.A.(N.S.)  642,  107  N.  W.  405. 

7  A.  &  E.  Ann.  Cas.  1182;  Metlar  v.  Middlesex  &  S.  Traction  Co.  72  N.  J.  L.  526, 
63  Atl.  497, — holding  grant  of  power  is  to  be  sfrictly  construed  against  grantee; 
Currie  v.  New  York  Transit  Co.  66  N.  J.  Eqi  315,  105  Am.  St.  Rep.  647,  58  Atl. 
308,  holding  the  quantity  of  interest  which  a  railroad  corporation  acquires  in 
land,  taken  by  it  under  the  power  of  eminent  domain,  is  that  which  the  statute 
-conferring  the  power  authorizes  it  to  take. 

Cited  in  note  (8  L.  R.  A.  472)  upon  right  of  owner  of  soil  to  use  of  highway. 
Rig'hts  by  adverse  possession. 

Cited  in  Pennsylvania  R.  Co.  v.  Breckenridge,  60  N.  J.  L.  586,  38  Atl.  740, 
holding   railroad  company's  right  to  maintain  bridge  over  highway  by  adverse 
possession,  not  prevent  laying  pipes  beneath  surface  of  highway. 
Kig'bts   by  deed. 

Cited  in  Sherman  v.  Sherman,  23  S.  D.  503,  122  N.  W.  439  (dissenting  opinion), 
on  title  acquired  by  release  by  guardian  of  right  of  way  to  railroad. 

Distinguished  in  United  States  Pipe  Line  Co.  v.  Delaware,  L.  &  W.  R.  Co.  62 
N.  J.  L.  271,  42  L.  R.  A.  580,  41  Atl.  759,  holding  pipes  could  not  be  placed 
under  surface  of  wagon  road  reserved  in  deed  conveying  fee  to  railroad. 

1  L.  R.  A.  140,  PRESTON  v.  CINCINNATI,  C.  &  H.  VALLEY  R.  CO.  36  Fed.  54. 

Action   on  unpaid   subscription  to  stock. 

Cited  in  Salt  Lake  Hardware  Co.  v.  Tintic  Milling  Co.  13  Utah,  431,  45  Pac. 
200,  holding  stockholder  not  relieved  from  liability  on  stock  by  company's  ac- 
ceptance of  worthless  property  in  payment;  Re  Hess  Mfg.  Co.  23  Ont.  Rep.  188, 
as  to  liability  of  director  or  promoter  when  payment  for  shares  is  fictitious. 

Cited  in  note    (42  L.  R.  A.  608)   on  how  far  the  payment  for  stock  in  a  cor- 
poration by  a  transfer  of  property  will  protect  shareholder  against  creditors  of 
company. 
\\  . •!•_.•!•  i  i! ii    contracts. 

Cited  in  Johnston  v.  Miller,  67  Ark.  176,  53  S.  W.  1052,  holding  facts  did  not 
disclose  that  broker,  in  purchasing  cotton  on  margin  for  customer,  did  not  con- 
template actual  delivery. 

Cited  in  footnotes  to  Sprague  v.  Warren,  3  L.  R.  A.  679,  holding  intention  to 
deliver  or  receive  corn  in  transaction  on  margin  not  shown;  Cashman  v.  Root, 
12  L.  R.  A.  511,  holding  purchase  of  stock  on  margin  for  one  receiving  or  paying 
only  difference  between  buying  and  selling  values,,  invalid ;  Booth  v.  People,  50 
L.  R.  A.  762,  holding  valid  statute  making  it  unlawful  to  deal  in  options  on 
specified  commodities;  Baxter  v.  Deneen,  64  L.R.A.  949,  which  holds  that  broker 
with  whom  margins  have  been  deposited  in  a  stock  gambling  transaction  will  not 
te  enjoined  from  violating  agreement  to  keep  them  on  deposit  in  a  specified  bank 


1  L.R.A.  140]  L.  R.  A.  CASES  AS  AUTHORITIES.  22 

until  the  transaction  is  closed;  Scales  T.  State,  66  L.R.A.  730,  which  holds 
wagering  contract  in  futures  not  shown  by  fact  that  purchaser  intended  to  sell 
his  contract  before  time  for  performance  arrived  unless  noncontemplation  of 
actual  performance  of  obligation  by  other  party  is  also  shown. 

Cited  in  notes  (5  L.  R.  A.  201)  on  wagers  and  wagering  contracts;  (3  L.  R.  A. 
679)  on  wagering  contracts  being  void;  (5  L.  R.  A.  202)  on  rule  as  to  contracts 
for  future  delivery;  (4  L.  R.  A.  400)  on  conveyance  of  property  to  be  acquired 
in  the  future;  (22  L.R.A. (N.S.)  177)  on  inference  as  to  character  of  transaction 
on  margin. 

1  L.  R,  A.  143,  McCORD  v.  WESTERN  U.  TELEG.  CO.  39  Minn.  181,  12  Am.  St. 

Rep.  636,  39  N.  W.  315. 
Liability  of  master  for  acts  of  servant. 

Cited  in  Penas  v.  Chicago,  M.  &  St.  P.  R.  Co.  112  Minn.  216,  30  L.R.A.(X.S.) 
633,  140  Am.  St.  Rep.  470,  127  N.  W.  926,  holding  that  liability  of  railroad  for 
ejection  of  minor  from  moving  train  by  brakeman  is  question  for  jury; 
Poteet  v.  Blossom  Oil  &  Cotton  Co.  53  Tex.  Civ.  App.  191,  115  S.  W.  289,  hold- 
ing owner  of  mill  liable  for  injury  to  visiting  child  from  negligence  of  manager 
in  permitting  it  to  remain  in  room  containing  dangerous  machinery;  Kiviechen 
v.  Holmes  &  H.  Co.  106  Minn.  148,  19  L.R.A. (N.S.)  255,  118  N.  W.  668  (dis- 
senting opinion),  on  liability  of  master  for  negligence  of  servant  outside  scope 
of  his  employment;  Dean  v.  St.  Paul  Union  Depot  Co.  41  Minn.  362,  5  L.R.A. 
443,  16  Am.  St.  Rep.  703,  43  N.  W.  54,  holding  depot  company  liable  for  as- 
sault on  traveler  by  vicious  employee  of  lessee. 

Cited  in  footnotes  to  North  Chicago  City  R.  Co.  v.  Gastka,  4  L.  R.  A.  481, 
holding  street  railroad  company  liable  for  malicious  assault  of  conductor  in 
ejecting  passenger;  Dwindle  v.  New  York  C.  &  H.  R.  R.  Co.  8  L.  R.  A.  224,  hold- 
ing company  liable  for  assault  by  sleeping-car  porter  upon  passenger  temporarily 
detained  by  defect  in  roadbed. 

Cited  in  notes  (105  Am.  St.  Rep.  349)  on  liability  of  carrier  for  acts  of  serv- 
ant; (12  Eng.  Rul.  Cas.  307)  on  imputing  fraud  of  servant  or  agent  to  master 
or  principal. 

Distinguished  in  National  Bank  of  Commerce  v.  Chicago,  B.  &  N.  R.  Co.  44 
Minn.  234,  9  L.  R.  A.  269,  46  N.  W.  342,  holding  carrier  not  bound  for  wheat 
never  received  for  transportation  though  billed  by  station  agent;  Campbell  v. 
Northern  P.  R.  Co.  51  Minn.  491,  53  N.  W.  768,  holding  railroad  company  not 
liable  for  assault  committed  by  its  physician  on  patient. 
Liability  of  telegraph  company  as  to  messages. 

Cited  in  Usher  v.  Western  U.  Teleg.  Co.  122  Mo.  App.  98,  98  S.  W.  84,  holding 
telegraph  company  not  liable  for  act  outside  scope  of  employment  of  agent  as 
to  one  to  whom  it  owed  no  duty;  Halsted  v.  Postal  Teleg.  Cable  Co.  120  App. 
Div.  433,  10  N.  Y.  Supp.  1016  (dissenting  opinion),  on  liability  for  mistake  in 
transmission  of  message  by  operator. 

Cited  in  footnotes  to  Western  U.  Teleg.  Co.  v.  Adams,  6  L.R.A.  844,  holding 
failure  to  disclose  relationship  no  excuse  for  not  delivering  message  which  would 
have  enabled  receiver  to  be  with  dying  brother;  Western  U.  Teleg.  Co.  v.  Cooper, 
1  L.R.A.  728,  holding  company  liable  for  failure  to  deliver  telegram  summoning 
physician. 
Fraudulent  message. 

Cited  in  Pacific  Postal  Teleg.  Cable  Co.  v.  Bank  of  Palo  Alto,  54  L.R.A.  713, 
48  C.  C.  A.  413,  109  Fed.  372,  Affirming  103  Fed.  843,  holding  telegraph  company 
liable  for  fraudulent  message  sent  by  its  regular  operator  requesting  payment  of 
money;  Bank  of  Havelock  v.  Western  U.  Teleg.  Co.  4  L.R.A.(N.S.)  181,  72  C. 


23  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  146 

C.  A.  580,  141  Fed.  532,  5  A.  &  E.  Ann.  Cas.  515,  holding  telegraph  company 
liable  if  it  transmit  message  without  investigating  or  communicating  facts  and 
circumstances  to  addressee,  where  it  receives  for  transmisson  message  under 
circumstances  to  arouse  suspicions  of  person  of  ordinary  caution;  Western  U. 
Teleg.  Co.  v.  Uvalde  Nat.  Bank,  97  Tex.  219,  65  L.R.A.  805,  77  S.  W.  603,  1  A, 
&  E.  Ann.  Cas.  573,  holding/  in  absence  of  negligence,  telegraph  company  not 
liable  for  delivering  fraudulent  telegram  by  one  who  tapped  wires;  Usher  v. 
Western  U.  Teleg.  Co.  122  Mo.  App.  105,  98  S.  W.  84,  holding  company  not  liable 
for  damages  from  telegram  forged  by  operator,  where  damages  are  not  proximate 
cause  of  forgery;  Bank  of  Havelock  v.  Western  U.  Teleg.  Co.  4  L.R.A.(X.S.)  188, 
72  C.  C.  A.  580,  141  Fed.  531,  5  A.  &  E.  Ann.  Cas.  515,  holding  company  not  liable 
for  loss  of  lien  by  mortgagor  from  sending  of  telegram  received  by  telephone 
from  one  without  authority  to  send  it;  Western  U.  Teleg.  Co.  v.  Uvalde  Nat. 
Bank,  97  Tex.  225,  65  L.R.A.  810,  77  S.  W.  603,  1  A.  &  E.  Ann.  Cas.  573,  hold- 
ing company  liable,  where  swindler  tapped  wire,  intercepted  message  and  sent 
reply  resulting  in  cashing  of  draft. 

Cited  in  note  (65  L.R.A.  807)  on  liability  of  telegraph  company  for  trans- 
mission or  delivery  of  forged  message. 

1   L.  R.  A.   146,  BURDON  v.  MASSACHUSETTS  SAFETY  FUND  ASSO.   147 

Mass.  360,  17  N.  E.  874. 
When  right  of  parties*  In  insolvent  corporation  fixed. 

Cited  in  People  v.  Commercial  Alliance  L.  Ins.  Co.  154  N.  Y.  100,  47  N.  E. 
968,  Affirming  17  App.  Div.  382,  45  N.  Y.  Supp.  223;  Merrill  v.  Commonwealth 
Mut.  F.  Ins.  Co.  171  Mass.  83,  50  N.  E.  519;  Fogg  v.  Supreme  Lodge,  U.  O.  of 
G.  L.  159  Mass.  12,  33  N.  E.  692,  holding  date  of  filing  bill  for  dissolution  of 
insurance  company  fixed  rights  of  parties  in  assets;  Jones  v.  Arena  Pub.  Co.  171 
Mass.  27,  50  N.  E.  15,  adopting  date  of  appointing  receiver  to  fix  rights  of  par- 
ties; Michel  v.  Southern  Ins.  Co.  128  La.  566,  54  So.  1010,  holding  that  policy 
nolder  cannot  recover  for  loss  occurring  one  day  after  dissolution  of  company 
but  is  creditor  to  extent  of  unearned  premium. 
Effect  of  appointing  receiver. 

Cited  in  Garham  v.  Mutual  Aid  Soc.  161  Mass.  365,  37  N.  E.  447,  holding  prior 
attachments  not  dissolved  by  appointment. 
Rights   In   reserve   fund. 

Cited  in  Palmer  v.  Northern  Mut.  Relief  Asso.  175  Mass.  398,  78  Am.  St.  Rep. 
503,  56  N.  E.  828,  holding  death  fund  held  in  trust  for  certificate  holders  could 
not  be  attached  to  pay  death  claimant;  Re  Equitable  Reserve  Fund  Life  Asso. 
131  N.  Y.  374,  30  N.  E.  114,  Modifying  61  Hun,  303,  16  N.  Y.  Supp.  80,  holding 
death  claimants  could  not  resort  to  reserve  fund  when  death  fund  insufficient; 
Buswell  v.  Supreme  Sitting  0.  of  I.  H.  161  Mass.  231,  23  L.  R.  A.  850,  36  N.  E. 
1065,  holding  reserve  fund  belonged  to  supreme  order  for  benefit  of  certificate 
holders,  and  not  to  its  local  branches;  Fogg  v.  Supreme  Lodge  U.  O.  of  G.  L.  159 
Mass.  15,  33  N.  E.  692,  discussing,  but  not  determining,  right  of  general  credit- 
ors to  be  paid  from  reserve  and  benefit  funds. 

Cited  in  notes  (38  L.  R.  A.  109)  on  distribution  of  special  funds  of  insolvent 
insurance  company;  (3  L.R.A. (N.S.)  654)  on  distribution  of  surplus  upon  dis- 
solution of  mutual  insurance  company. 

Distinguished  in  Re  Wisconsin  Odd  Fellows'  Mut.  L.  Ins.  Co.  101  Wis.  7,  42 
L.  R.  A.  302,  76  X.  W.  775,  holding  death  claim  arising  after  assignment  by 
society  not  enforceable  against  reserve  fund;  People  ex  rel.  Atty.  Gen.  v.  Life  & 
Reserve  Asso.  150  N.  Y.  113,  45  N.  E.  8,  requiring  distribution  of  reserve  fund  in 


1  L.R.A.  146]  L.  R.  A.  CASES  AS  AUTHORITIES.  24 

payment  of   claims   for   deaths,   before  applying  balance  pro  rata  among  other 
holders  of  reserve  certificates. 
Proper  remedy  of  beneficiary. 

Cited  in  Palmer  v.  Northern  Mut.  Relief  Asso.  175  Mass.  309,  78  Am.  St.  Rep. 
503,  56  N.  E.  828,  holding  proceeding  in  equity,  not  attachment,  proper  remedy 
for  one  claiming  death  benefit;  Garcelon  v.  Commercial  Travelers'  Eastern  Acci. 
Asso.  184  Mass.  11,  67  N.  E.  868,  sustaining  action  at  law  against  benefit  society 
for  failure  to  assess  members  to  pay  for  injury  resulting  in  amputation  of  arm 
of  fellow  member;  Verner  v.  Simpson,  68  S.  C.  461,  47  S.  E.  729,  as  to  whether 
property  bought  by  annual  premiums  of  a  mutual  insurance  company,  which 
by  its  by-laws  is  not  subject  to  payment  of  fire  losses,  except  by  order  of  direc- 
tors, can  be  levied  on  under  execution  by  members  of  company  to  pay  judgment 
for  loss  by  fire. 

Cited  in  footnotes  to  Newman  v.  Covenant  Mut.  Ben.  Asso.  1  L.  R.  A.  659,  hold- 
ing proper  judgment  for  amount  of  insurance  certificate  with  interest,  when  as- 
sociation has  refused  to  obey  decree  ordering  assessment;  Bentz  v.  Northwestern 
Aid  Asso.  2  L.  R.  A.  784,  holding  action  for  breach  of  contract  proper  remedy  for 
refusal  to  make  assessment  for  death  claim. 

Cited  in  notes  (2  L.  R.  A.  788)  on  remedy  for  refusal  of  mutual  benefit  asso- 
ciation to  levy  assessment  for  death  claim;  (8  L.  R.  A.  114,  116)  on  action  on 
contract  of  mutual  benefit  association. 

Distinguished  in  Ring  v.  United  States  Life  &  Acci.  Asso.  33  111.  App.  174, 
holding  action  at  law  maintainable  on  certificate  making  absolute  promise  to 
pay  specified  amount  on  proof  of  death;  Reed  v.  Ancient  Order,  R.  C.  8  Idaho, 
413,  69  Pac.  127,  holding  an  action  at  law  will  lie  on  a  certificate  of  membership 
which  provides  that  upon  the  death  of  the  member  the  association  will  pay  to 
the  beneficiary  therein  named  out  of  the  mortuary  fund  the  amount  of  one 
assessment  on  the  membership,  not  exceeding  $2,000. 
Kig-lits  of  certificate  holders. 

Cited  in  J.  P.  Lamb  &  Co.  v.  Merchants'  Nat.  Mut.  F.  Ins.  Co.  18  N.  D.  267, 
119  N.  W.  1048,  holding  that  policy  holder  cannot  recover  for  loss  after  can- 
celation  of  policy  for  failure  to  pay  premium  within  time  prescribed  by  by-laws. 

Cited  in  footnotes  to  Lorscher  v.  Supreme  Lodge,  K.  of  H.  2  L.  R.  A.  206,  hold- 
ing execution  of  certificate  admitted  by  pleading;  Davidson  v.  Old  Peoples'  Mut, 
Ben.  Soc.  1  L.  R.  A.  482,  holding  reinstatement  no  consideration  for  stipulation 
to  receive  part  of  sum  due  as  full  payment. 

Cited  in  notes   (7  L.R.A.  189)   on  transfer  of  mutual  benefit  certificates;    (19 
Am.  St.  Rep.  784)   on  forfeiture  of  insurance  provided  by  mutual  benefit  asso- 
ciation. 
Jurisdiction  of  eQuity  to  dissolve  voluntary  unincorporated  associations. 

Cited  in  note  (68  Am.  St.  Rep.  871)  on  jurisdiction  of  equity  to  dissolve 
voluntary  unincorporated  associations. 

1  L.  R.  A.  152,  HARRAH  v.  JACOBS,  75  Iowa,  72,  39  N.  W.  187. 
Rights  of  joint  obligor  paying-  obligation. 

Cited  in  Allison  v.  Pattison,  96  Ala.  162,  11  So.  194,  holding  paying  joint 
obligor  who  took  assignment  of  lien  on  crops  to  secure  it,  was  not  thereby  en- 
titled to  try  right  of  property;  Weiser  v.  Ross,  150  Iowa,  361,  130  N.  W.  387, 
holding  that  payment  of  judgment  on  note,  which,  under  contract  with  co- 
obligor,  defendant  had  assumed,  amounts  to  satisfaction  of  note  and  precludes 
subsequent  recovery  against  co-obligor. 


25  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  152 

Cited  in  notes  (17  Am.  St.  Rep.  276)  on  surety's  claim  upon  principal;  (68 
L.R.A.  563)  on  extinction  of  judgments  against  principals  by  sureties'  payment. 
Limitation  of  action  for  contribution. 

Cited  in  Guild  v.  McDaniels,  43  Kan.  551,  23  Pac.  607,  holding  three  years' 
statute  of  limitation  applies  to  action  against  principal  by  surety  paying  note 
signed  by  him  as  joint  maker;  Sparks  v.  Childers,  2  Ind.  Terr.  193,  47  S.  W.  316, 
holding  action  against  principal  by  surety  paying  note  may  be  considered  as  ac- 
tion on  note  within  rule  as  to  running  of  limitations;  Van  Patten  v.  Waugh,  122 
Iowa,  303,  98  N.  W.  119,  holding  action  by  surety  on  note  against  principal  barred 
by  statute  of  limitations  of  five  years;  Burrus  v.  Cook,  215  Mo.  505,  114  S.  W. 
1065,  Affirming  117  Mo.  App.  402,  93  S.  W.  888,  holding  period  of  limitation  of 
action  whether  against  principal  or  cosurety  begins  to  run  from  day  of  surety's 
payment. 

1  L.  R.  A.  152,  NISBET  v.  GARNER,  75  Iowa,  314,  9  Am.  St.  Rep.  486,  39  N.  W. 

516. 
Impntetl    negligrence. 

Applied  in  Barnes  v.  Marcus,  96  Iowa,  677,  65  N.  W.  984,  holding  negligence 
of  one  stepping  on  loose  end  of  plank  not  imputable  to  his  companion  tripped 
up  thereby;  Abbitt  v.  Lake  Erie  £  W.  R.  Co.  150  Ind.  514,  50  N.  E.  729,  holding 
negligence  of  servant  imputable  to  fellow  servant  where  relation  of  agency  exists. 

Cited  in  notes  (4  L.  R.  A.  126;  6  L.  R.  A.  143;  8  L.  R.  A.  494,  495)  on  doctrine 
of   imputed  negligence;    (1   L.   R.   A.   681)    on   damages   for  personal   injury  by 
collision  between  carriers;    (16  Am.  St.  Rep.  253;  110  Am.  St.  Rep.  280,  291)  on 
imputed  negligence. 
—  Of  driver  to  passenger. 

Cited  in  Pyle  v.  Clark,  75  Fed.  647,  holding  livery  carriage  driver's  negligence 
not  imputable  to  passenger;  Elyton  Land  Co.  v.  Mingea,  89  Ala.  529,  7  So.  666, 
holding  negligence  of  driver  of  hose  cart  not  imputable  to  fireman  having  no 
control  over  him;  Larkin  v.  Burlington,  C.  R.  &  N.  R.  Co.  85  Iowa,  504,  52  N. 
W.  480,  holding  it  a  question  for  the  jury  whether  livery  carriage  driver's  neg- 
ligence imputable  to  passenger;  Mullen  v.  Owosso,  100  Mich.  108,  23  L.  R.  A. 
694,  footnote,  p.  693,  43  Am.  St.  Rep.  436,  58  N.  W.  663  (dissenting  opinion), 
majority  holding  negligence  of  driver  imputable  to  one  voluntarily  riding  with 
him;  McBride  v.  Des  Moines  City  R.  Co.  134  Iowa,  407,  109  N.  W.  618,  holding 
negligence  of  driver  of  fire  wagon  colliding  with  street  car  not  imputable  to 
fireman;  Stotelmeyer  v.  Chicago,  M.  &  St.  P.  R.  Co.  148  Iowa,  285,  127  N.  W. 
205,  holding  that  instruction  that  negligence  of  driver  would  be  imputed  to 
plaintiff  is  not  open  to  objection  by  defendant  that  its  indirect  effect  was  to 
impute  to  plaintiff,  freedom  from  negligence;  Quinette  v.  Bisso,  5  L.R.A.(X.S.) 
315,  69  C.  C.  A.  503,  136  Fed.  839,  holding  passenger  on  skiff  not  chargeable 
with  negligence  of  owner  in  failing  to  equip  skiff  with  fog  horn;  Bresee  v.  Los 
Angeles  Traction  Co.  149  Cal.  137,  5  L.R.A.  (N.S.)  1062,-  85  Pac.  152;  Chicago 
Union  Traction  Co.  v.  Leach,  117  111.  App.  172;  Shultz  v.  Old  Colony  Street  R. 
Co.  193  Mass.  317,  8  L.R.A. (N.S.)  607,  118  Am.  St.  Rep.  502,  79  N.  E.  873,  9  A. 
&  E.  Ann.  Cas.  402, — holding  negligence  of  driver  of  carriage  not  imputable  to 
guest  or  passenger. 

Cited  in  footnotes  to  East  Tennessee,  V.  &  G.  R.  Co.  v.  Markens,  14  L.  R.  A.  281, 
which  holds  the  negligence  of  a  hack  driver  not  imputable  to  a  passenger;  Kop- 
litz  v.  St.  Paul,  58  L.  R.  A.  74,  holding  omnibus  driver's  negligence  not  imputa- 
ble to  lady  passenger  having  nothing  to  do  with  luring  conveyance;  Illinois  C. 
R.  Co.  v.  McLeod,  52  L.  R.  A.  954,  holding  it  the  duty  of  one  hiring  team  and 
driver  to  remonstrate  against  latter  crossing  track  without  stopping  and  lis- 


1  L.R.A.  152]  L.  R.  A.  CASES  Afc>  AUTHORITIES.  26 

tening  for  train;  McKernan  v.  Detroit  Citizens'  Street  R.  Co.  68  L.R.A.  347, 
which  holds  negligence  of  driver  of  fire  engine  in  colliding  with  street  car  not  im- 
putable  to  fireman  riding  on  engine;  St.  Louis  &  S.  F.  R.  Co.  v.  McFall,  69 
L.R.A.  217,  which  holds  engineer's  negligence  resulting  in  collision  not  imput- 
able to  conductor;  Markowitz  v.  Metropolitan  Street  R.  Co.  69  L.R.A.  389,  which 
holds  negligence  of  driver  imputable  to  employer  seated  beside  him;  Colorado  & 
Southern  R.  Co.  v.  Thomas,  70  L.R.A.  681,  which  denies  right  of  recovery  for 
death  by  collision  with  train  of  one  joining  with  driver  of  conveyance  in  testing 
danger  of  attempting  to  cross  tracks  in  front  of  train. 

Cited  in  notes  (9  L.R.A.  157)  on  imputing  driver's  negligence  to  passenger; 
(69  L.R.A.  217;  8  L.R.A.  (N.S.)  600,  604,  628,  644,  650,  658,  665,  670;  57  Am. 
St.  Rep.  360)  on  same  point. 

—  Of  parent  to  child. 

Cited  in  Wymore  v.  Mahaska  County,  78  Iowa,  398,  6  L.  R.  A.  547,  16  Am.  St. 
Rep.  449,  43  N.  W.  264,  holding  parents'  negligence  not  prevent  recovery  by  ad- 
ministrator for  child  killed,  though  parents  entitled  to  child's  estate;  Wil- 
liams v.  South  &  North  Ala.  R.  Co.  91  Ala.  639,  9  So.  77,  holding  minor  em- 
ployee's negligence  causing  his  death,  imputable  to  father  consenting  to  son's 
employment. 

Cited  in  footnote  -to  Duval  v.  Atlantic  Coast  Line  R.  Co.  65  L.R.A.  722,  which 
holds  father's  negligence  in  driving  not  imputable  to  daughter  riding  with  him. 

Cited  in  note   (8  L.  R.  A.  844)   on  imputing  mother's  negligence  to  child. 

Distinguished  in  Bamberger  v.  Citizens'  Street  R.  Co.  95  Tenn.  28,  28  L.  R.  A. 
490,  49  Am.  St.  Rep.  909,  31  S.  W.  163,  holding  action  by  father  for  child's 
death  defeated  by  father's  negligence. 

—  Of  husband  to  wife. 

Cited  in  Chicago,  St.  L.  &  P.  R.  Co.  v.  Spilker,  134  Tnd.  403,  33  N.  E.  287, 
holding  husband's  negligence  while  driving  not  imputable  to  wife,  because  under 
his  protection  and  control;  Bailey  v.  Centerville,  115  Iowa,  273,  88  N.  W.  379, 
holding  husband's  negligence  in  stepping  on  end  of  loose  board  in  sidewalk  not 
imputable  to  wife  tripped  up  thereby;  Elenz  v.  Conrad,  115  Iowa,  186,  88  N.  W. 
337,  holding  averme'nt  of  freedom  from  contributory  negligence  sufficiently  al- 
leges freedom  from  any  imputable  negligence  of  husband;  Willfong  v.  Omaha 
&  St.  L.  R.  Co.  116  Iowa,  553,  90  N.  W.  358,  as  to  rule  of  negligence  of  hus- 
band imputable  to  wife. 
Of  wife  to  husband. 

Cited  in  Chicago,  B.  &  Q.  R.  Co.  v.  Honey,  26  L.  R.  A.  44,  12  C.  C.  A.  190,  27 

U.  S.  App.   196,  63  Fed.  41,  Reversing  59  Fed.  425,  holding  wife's  contributory 

negligence  imputed  to  husband  in  action  by  latter  for  loss  of  former's  services. 

Subsequent    condition    of    premises    as    evidence    of    condition    at    time    of 

accident. 

Cited  in  Meyers  v.  Highland  Boy  Gold  Min.  Co.  28  Utah,  106,  77  Pac.  347, 
holding  evidence  of  condition  two  or  three  days  after  accident  admissible  it 
not  being  shown  that  condition  was  different  at  time  of  accident. 

Cited  in  note  (32  L.R.A.  (N.S.)  1118)  on  admissibility  of  evidence  of  con- 
dition before  and  after  accident  of  property  whose  defects  alleged  to  have 
•caused  injury. 

1  L.  R.  A.  155,  PECK  v.  BONEBRIGHT,  75  Iowa,  98,  39  N.  W.  213. 
Replevin. 

Cited  in  Harvey  v.  Pinkerton,  101  Iowa,  249,  70  N.  W.  192,  holding  it  neces- 


27  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  157 

sary   for   the   jury   in   replevin   for  mortgaged   chattels   to   find   the  amount  due 
defendant. 

Cited  in  note  (80  Am.  St.  Rep.  750)  as  to  when  replevin  or  claim  and  delivery 
is  sustainable. 

1  L.  R.  A.  155,  VAN  TINE  v.  VAN  TINE   (N.  J.  Eq.)   15  Atl.  249. 
Effect    of   statute   of   frauds    on   promise   of   posthumous    grift. 

Cited  in  Kofka  v.  Rosicky,  41  Neb.  345,  25  L.  R.  A.  213,  43  Am.  St.  Rep.  685, 
59  N.  W.  788,  and  Wright  v.  Wright,  99  Mich.  175,  23  L.  R.  A.  197,  58  N.  W.  54, 
holding  contract  to  leave  property  to  adopted  child  taken  out  of  statute  by  per- 
formance by  child;  Hood  v.  McGehee,  189  Fed.  208,  holding  that  ineffective  adop- 
tion proceedings,  accompanied  by  promise  to  leave  property  to  adopted  child, 
may  amount  to  contract  which,  when  performed  by  child,  may  be  specifically 
enforced;  Anderson  v.  Anderson,  75  Kan.  126,  9  L.R.A. (N.S.)  233,  88  Pac.  743, 
holding  agreement  to  will  property  to  adopted  child  taken  out  of  statute  by 
performance  by  child;  Teske  v.  Dittberner,  70  Neb.  548,  113  Am.  St.  Rep.  802, 
98  N.  W.  57,  holding  that  parol  agreement  to  devise  homestead  property  and 
other  property  may  be  specifically  enforced  as  to  the  other  property;  Re  Sus- 
man,  28  Pittsb.  L.  J.  N.  S.  103,  holding  child,  not  legally  adopted,  who  has  ren- 
dered services  due  from  chlid  to  parent,  entitled  to  participate  in  distribution  of 
foster-parent's  estate;  Starnes  v.  Hatcher,  121  Tenn.  341,  117  S.  W.  219,  grant- 
ing specific  performance  of  contract  to  leave  property  to  adopted  child,  though 
contract  to  adopt  is  not  performed;  Jordan  v.  Abney,  97  Tex.  303,  78  S.  W.  486, 
as  to  whether  specific  performance  can  be  had  of  a  verbal  contract  to  adopt  as 
an  heir  or  to  devise  property;  Chehak  v.  Battles,  133  Iowa,  109,  8  L.R.A.(N.S.) 
1133,  110  N.  W.  330,  12  A.  &  E.  Ann.  Cas.  140,  holding  surrender  of  child  on 
promise  to  make  it  heir  specifically  enforceable  as  to  such  promise. 

Cited  in  note  (14  L.  R.  A.  862)  on  effect  of  statute  of  frauds  on  agreement 
to  pay  money  or  give  property  after  promisor's  death. 

Distinguished  in  Renz  v.  Drury,  57  Kan.  88,  45  Pac.  71,  refusing  specific  per- 
formance of  parol  agreement  to  make  child,  not  legally  adopted,  heir. 

Disapproved  in  Austin  v.  Davis,  128  Ind.  478,  12  L.  R.  A.  124,  25  Am.  St.  Rep. 
456,   26   N.   E.   890,   holding  verbal   agreement  to   make   child   an  heir,   though 
partly  performed  by  child,  within  statute  of  frauds. 
Effect  of  ineffective  adoption  on  rights  of  adopting;  parent. 

Cited  in   Sarazin   v.   Union  R.   Co.   153   Mo.   486,   55   S.   W.   92,   holding  that 
adopting    parent   cannot   recover    for    wrongful   death   of   adopted   child,    where 
acknowledgment  of  deed  of  adoption  was  defective. 
Costs   in  partition. 

Cited  in  note  (10  L.  R.  A.  55)   on  costs  in  partition. 

1  L.  R.  A.  157,  NEW  YORK,  C.  &  ST.  L.  R.  CO.  v.  DOANE,  115  Ind.  435,  7  Am. 

St.  Rep.  451,  17  N.  E.  913. 
Care  required  of  passenger  carrier. 

Cited  in  note  (10  Am.  St.  Rep.  64)  on  care  required  of  passenger  carrier. 
Duty  as  to  stations  and  platforms. 

Cited  in  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Wingate,  143  Ind.  131,  37  N.  E.  274, 
holding  carrier  negligent  in  making  platform  26  inches  below  lowest  car  step 
and  allowing  insufficient  time  to  alight;  Birmingham  R.  Light  &  P.  Co.  v.  Sea- 
born, 168  Ala.  661,  53  So.  241,  holding  that  railroad  is  liable  for  negligently 
carrying  passenger  past  station  and  misdirecting  him  as  to  return;  Central  of 


1  L.R.A.  157]  L.  R.  A.  CASES  AS  AUTHORITIES. 

Georgia  R.  Co.  v.  Carlisle,  2  Ala.  App.  516,  56  So.  737,  holding  railroad  not  liable 
for  fall  of  woman  in  alighting  because  her  hands  were  full  of  packages. 

Cited  in  notes  (7  L.  R.  A.  Ill)  on  duty  to  furnish  safe  stations  and  platforms 
for  passengers;    (3  L.  R.  A.  75)   on  duty  to  furnish  lights  and  guards;    (6  L.  R 
A.  194)   on  duty  to  light  stations;    (7  L.  R.  A.  689)   on  means  of  approach  and 
departure;    (7  L.  R.  A.  113)   on  passenger  carried  beyond  destination;    (7  L.  R. 
A.  112)   on  liability  for  injury  to  passenger  alighting  from  train;    (11  L.  R.  A. 
720)   on  duty  of  care  for  safety  of  passengers;    (7  L.R.A.(N.S.)   1180)   on  what 
injuries  deemed  proximate  result  of  discharging  passenger  at  wrong  or  improper 
place;    (17   L.R.A.(N.S.)    1228)    on  measure   of   damages   for  carrying  passenger 
beyond  destination. 
Duty  as  to  passenger   on   freight  train. 

Approved  in  Chicago  &  A.  R.  Co.  v.  Arnol,  144  111.  272,  19  L.  R.  A.  316,  33 
N.  E.  204,  and  Moore  v.  Saginaw,  T.  &  H.  R.  Co.  115  Mich.  107,  72  N.  W.  1112, 
holding  carrier  of  passengers  by  freight  train  required  to  exercise  highest  degree 
of  care  practicable. 

Cited  in  Spence  v.  Chicago,  R.  I.  &  P.  R.  Co.  117  Iowa,  9,  90  N.  W.  346,  hold- 
ing carrier  liable  for  injury  to  passenger  taken  in  construction  train  by  con- 
ductor in  violation  of  orders. 

Cited  in  footnote  to  Whitehead  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  6  L.  R.  A.  409, 
which  holds  carrier  owes  duty  to  one  riding  on  freight  train  with  consent  of 
employees,  though  in  violation  of  rules. 

Cited  in  note    (61  Am.  St.  Rep.  94,  95)    on  duty  as  to  passenger  on  freight 
train. 
Contributory  negligence  of  passengers. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Klitch,  11  Ind.  App.  294,  37  N". 
E.  560,  holding  passenger  negligently  discharged  at  wrong  station  not  negligent 
as  matter  of  law  in  driving  to  proper  station;  Illinois  C.  R.  Co.  v.  Check,  152 
Ind.  670,  53  N.  E.  641,  holding  woman  not  negligent  in  attempting,  on  carrier's 
invitation,  to  enter  car  with  step  3  feet  from  ground;  Peirce  v.  Jones,  22  Ind. 
App.  172,  53  N.  E.  431,  holding  rider  in  carriage  not  negligent,  as  matter  ol 
law,  in  driving  over  crossing  at  flagman's  signal;  Adams  v.  Missouri  P.  R.  Co. 
100  Mo.  569,  12  S.  W.  637  (dissenting  opinion),  majority  holding  passenger 
discharged  from  caboose  before  reaching  station  could  not  recover  for  injury 
received  by  jumping  from  flat  car  mounted  to  reach  station. 

Cited  in  footnote  to  White  v.  Cincinnati,  N.  0.  &  T.  P.  R.  Co.  7  L.  R.  A.  44, 
which  holds  knowledge  of  defect  in  platform  for  loading  stock  not  prevent  recov- 
ery for  injury. 

Cited  in  note  (12  L.R.A.(N.S.)  359)  on  negligence  of  passenger  ejected  from 
train,  in  walking  on  track. 

Distinguished  in  Benson  v.  Central  P.  R.  Co.  98  Cal.  50,  32  Pac.  809,  holding 
passenger  left  at  wrong  station  negligent  in  walking  on  track  to  proper  sta- 
tion; Ham  v.  Delaware  &  H.  Canal  Co.  155  Pa.  558,  20  L.  R.  A.  685,  26  Atl.  757 
(dissenting  opinion),  majority  holding  one  wrongfully  ejected  required  to  leave 
track  only  at  earliest  practicable  opportunity.  . 
Termination  of  relation  of  carrier  and  passenger. 

Cited  in  McGovern  v.  Interurban  R.  Co.  136  Iowa,  21.  13  L.R.A.(N".S.)  480, 
125  Am.  St.  Rep.  215,  111  N.  W.  412,  holding  in  general  it  is  not  the  duty  of 
an  interurban  company's  employees  to  assist  passengers  in  alighting  but  under 
facts  of  present  case  the  question  was  properly  submitted  to  jury;  Kentucky 
&  I.  Bridge  &  R.  Co.  v.  Buckler,  125  Ky.  30,  8  L.R.A.(N.S.)  557,  128  Am.  St. 
Rep.  234,  100  S.  W.  328;  Stevens  v.  Kansas  City  Elev.  R.  Co.  126  Mo.  App.  626, 
105  S.  W.  26, — holding  the  relation  does  not  cease  until  carrier  transports  pas- 


29  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  161 

senior  to  his  destination  and  affords  him  a  reasonable  opportunity  to  alight  in 
safety  from  the  vehicle. 

1  L.  R.  A.  161,  ELKINTON  v.  BRICK,  44  N.  J.  Eq.  154,  15  Atl.  391. 
Presumption   and   burden   of  proof  as   to  testamentary   capacity. 

Cited  in  McCoon  v.  Allen,  45  N.  J.  Eq.  719,  17  Atl.  820,  holding  presumption  of 
law  in  favor  of  capacity;  Koegel  v.  Egner,  54  N.  J.  Eq.  629,  35  Atl.  394,  holding 
burden  on  contestants  of  proving  incapacitating  temporary  insanity  or  drunken- 
ness at  time  will  made;  Prentis  v.  Bates,  93  Mich.  247,  17  L.  R.  A.  506,  53  S.  W. 
153  (dissenting  opinion),  majority  holding  burden  of  proof  as  to  testamentary 
capacity  on  proponents  throughout. 

Cited  in  notes  (17  L.  R.  A.  494,  497)  on  burden  of  proving  testamentary 
capacity;  (36  L.  R.  A.  724,  735,  737)  on  presumption  and  burden  of  proof  as 
to  sanity;  (10  L.  R.  A.  576)  on  burden  of  proving  insanity;  (35  L.  R.  A.  123) 
on  presumption  of  continuance  of  insanity;  (16  Am.  St.  Rep.  439)  on  burden  of 
proof. 
Testamentary  capacity. 

Cited  in  Re  Wilson,  117  Cal.  276,  49  Pac.  172,  711,  holding  evidence  of  fre- 
quent drinking  to  excess  insufficient  to  show  lack  of  testamentary  capacity. 

Cited  in  notes  (39  L.  R.  A.  226)  on  drunkenness  as  affecting  testamentary 
capacity;  (2  L.  R.  A.  670)  on  intoxication  or  derangement  of  mind  incapacitat- 
ing; (4  L.  R.  A.  738)  on  insane  delusions;  (12  L.  R.  A.  161)  on  testamentary 
capacity  as  affected  by  insane  delusion;  (6  L.  R.  A.  168)  on  capacity  to  make 
will;  (18  L.R.A.(N.S.)  100)  on  power  of  one  lacking  testamentary  capacity,  to 
revoke  will;  (14  Am.  St.  Rep.  711)  on  testamentary  capacity. 
Undue  influence. 

Cited  in  White  v.  Starr,  47  N.  J.  Eq.  272,  20  Atl.  875,  holding  influence  ac- 
quired by  kindness  and  affection  not  undue;  Westcott  v.  Sheppard,  51  N.  J.  Eq. 
320,  30  Atl.  428,  Affirming  49  N.  J.  Eq.  527,  25  Atl.  254,  holding  influence 
exerted  by  nurse  in  settling  claim  for  past  service  and  securing  claim  for  future 
service  not  undue;  Reeves  v.  Howard,  118  Iowa,  127,  71  N.  W.  896,  holding  mere 
sickness  and  weakness  of  mind,  without  showing  that  will  was  overcome,  insuffi- 
cient proof  of  undue  influence. 

Cited  in  footnotes  to  Re  Shell,  53  L.R.A.  387,  which  holds  undue  influence 
cannot  be  inferred  from  motive  or  opportunity  alone;  Kennedy  v.  Dickey,  68 
L.R.A.  317,  which  holds  will  not  annulled  for  undue  influence  by  honest  and 
moderate  intercession  or  persuasion  unaccompanied  with  fraud,  deceit,  threats, 
or  putting  in  fear. 

Cited  in  notes  (8  L.R.A.  261)  on  undue  influence;  (4  L.R.A.  738)  on  fraud 
and  undue  influence;  (14  Am.  St.  Rep.  711)  on  undue  influence  in  procuring  will; 
(31  Am.  St.  Rep.  670,  678,  679)  on  undue  influence  as  effecting  validity  of  wills. 
Presumption  from  attestation  clause. 

Cited  in  Darnell  v.  Buzby,  50  N.  J.  Eq.  730,  26  Atl.  676,  holding  that  testa- 
tor's declaration  must  state  or  lead  to  necessary  inference  that  instrument  exe- 
cuted is  a  will;  Re  Beggans,  68  N.  J.  Eq.  574,  59  Atl.  874,  holding  imperfect  at- 
testation clause  prima  facie  evidence  of  the  facts  stated  but  as  to  facts  not  stated 
it  possessed  no  probative  force;  Re  Sizer,  129  App.  Div.  10,  112  N.  Y.  Supp.  210, 
holding  an  attestation  clause  taken  together  with  proof  of  signatures  of  testa- 
tor and  subscribing  witnesses  is  prima  facie  evidence  of  due  execution  of  will. 
Attestation  of  will. 

Cited  in  Robbins  v.  Robbins,  50  N.  J.  Eq.  743,  26  Atl.  673,  holding  express 
publication  of  will  at  time  of  execution  unnecessary  where  witnesses  previously 


1  L.K.A.  1G1]  L.  R.  A.  CASES  AS  AUTHORITIKS.  3O 

requested  to  be  present  at  that  time  to  attest  will :  Farley  v.  Farley,  50  N.  J. 
Eq.  439,  26  Atl.  178,  holding  facts  stated  in  attestation  clause  presumptively 
true,  on  proof  of  signatures  of  witnesses. 

Cited  in  notes  (1  L.  R.  A.  492)  on  due  execution  of  will  under  New  York  stat- 
ute;   (8  L.  R.  A.  824)   on  acknowledgment  of  signature. 
Publication   of   will. 

Cited  in  Danley  v.  Jefferson,  150  Mich.  593,  121  Am.  St.  Rep.  640,  114  N.  W. 
470,  13  A.  &  E.  Ann.  Gas.  242  (dissenting  opinion),  as  to  what  constitutes  suffi- 
cient publication. 

I  L.  R.  A.  166,  BATES  v.  BASSETT,  60  Vt.  530,  15  Atl.  200. 
Municipal   power  to  acquire  and  own   property. 

Cited  in  Lucia  v.  Montpelier,  60  Vt.  546,  1  L.  R.  A.  172,  15  Atl.  321,  holding 
power  to  supply  village  with  water  includes  discretion  to  lay  parallel  main ; 
Parker  v.  Concord,  71  N.  H.  471,  52  Atl.  1095,  upholding  right  of  city  to  buy 
land  and  erect  building  thereon  for  city  purposes;  Corinth  v.  Locke,  62  Vt.  416, 

II  L.  R.  A.  210,  20  Atl.  809,  holding  town's  right  to  sue  includes  power  to  bid 
at  subsequent  execution  sale;  Stockwell  v.  Rutland,  75  Vt.  80,  53  Atl.  132,  hold- 
ing town  not  liable  for  injury  due  to  unguarded  ditch  dug  for  removal  of  munici- 
pal water  pipe. 

—  Municipal    buildings. 

Cited  in  Brooks  v.  Brooklyn,  146  Iowa,  142,  26  L.R.A.(N.S.)  430,  124  N.  W. 
868,  holding  that  town  cannot  erect  opera  house,  though  portion  of  it  is  to  be 
used  for  town  offices;  State  ex  rel.  Johnson  v.  Brown,  111  Minn.  84,  126  N.  W. 
408,  upholding  power  of  park  board  to  erect  house  in  park  for  office  and  resi- 
dence of  superintendent;  Hightower  v.  Raleigh,  150  N.  C.  571,  65  S.  E.  279,  hold- 
ing municipal  buildings  in  cities  of  certain  size  a  recognized  municipal  necessity, 
and  bonds  issued  for  that  purpose  under  proper  authority  given  by  legislature  in 
consequence  of  a  resolution  of  the  board  of  aldermen,  declaring  such  building  a 
necessity,  are  valid  without  the  approval  of  a  majority  of  qualified  voters; 
Lowry  v.  Forest  City,  39  Pa.  Super.  Ct.  279,  upholding  right  of  city  to  expend 
money  in  alteration  of  public  building. 

—  Mnnicipal    auditoriums    and    nails. 

Cited  in  Denver  v.  Hallett,  34  Colo.  408,  83  Pac.  1066,  holding  it  is  within 
power  of  city  and  county  of  Denver  to  provide  by  charter  for  the  erection  of  an 
auditorium,  to  purchase  a  site  therefor  and  to  issue  bonds  to  discharge  the  in- 
debtedness; Wheelock  v.  Lowell,  196  Mass.  228,  124  Am.  St.  Rep.  543,  81  N.  E. 
977,  12  A.  &  E.  Ann.  Cas.  1109,  holding  a  city,  which  already  has  a  city  hall 
sufficient  for  the  accommodation  of  its  city  council  and  officers  and  public  boards 
may  lawfully  expend  money  in  erecting  a  hall  to  be  used  for  political  rallies, 
conventions  and  other  public  meetings  and  which  may  be  occasionally  be  let  for 
private  uses  when  not  required  for  public  needs. 

Cited  in  note  (26  L.R.A. (N.S.)  427,  on  power  of  municipality  to  construct 
assembly,  convention,  exhibition,  or  amusement  hall. 

Distinguished  in  Brooks  v.  Brooklyn,  146  Iowa,  142,  26  L.R.A.(N.S.)  430,  124 
N.  W.  868,  holding  a  town  has  no  authority  to  construct  a  building  for  an  opera 
house  or  assembly  hall  where  the  form  of  government  is  representative  and  not 
democratic,  although  it  incidentally  provides  for  accommodation  in  it  of  the  fire 
department  and  town  offices. 
Rental  for  private  ase. 

Cited  in  Gottlieb-Knabe  &  Co.  v.  Macklin,  109  Md.  436,  31  L.R.A.(N.S.)  585,  71 


31  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  173 

Atf.  949,  16  Ana.  Cos.  1092,  sustaining  power  of  city  to  rent  unused  building 
to  militia. 

Cited  in  notes  (11  L.  R,  A.  124)  on  power  of  town  to  build  and  rent  for  in- 
come; (33  L.  R.  A.  119)  on  lease  or  license  of  public  buildings  for  private  pur- 
poses; (35  L.  R,  A.  737)  on  right  of  a  municipality  to  be  a  part  owner  of 
property;  (31  L.R.A.(N.S.)  580,  581)  on  right  of  municipality  to  permit  use  of, 
or  to  lease  public  buildings  for  private  purposes. 

1  L.  R.  A.  169,  LUCIA  v.  MONTPELIER,  60  Vt.  537,  15  Atl.  321. 
l'owern  of  municipality. 

Cited  in  footnote  to  Kingman  v.  Brockton,  11  L.  R.  A.  124,  which  holds  erec- 
tion of  memorial  hall,  but  not  maintenance  of  G.  A.  R.  post,  a  public  purpose 
within  taxation  clause. 

Cited  in  notes  (2  L.  R.  A.  721)  on  powers  of  municipal  corporations;  (61  L. 
R.  A.  38)  on  rights  and  duties  of  municipality. 

Distinguished  in  Re  Barre  Water  Co.  62  Vt.  33,  9  L.  R.  A.  198,  20  Atl.  109,  dis- 
cussing, without  deciding,  whether  incidental  cleansing  of  public  sewers  makes 
public  use. 

1  L.  R.  A.  172,  LAWRENCE  v.  SIMMONS,  10  Ky.  L.  Rep.  347,  9  S.  W.  163. 

1  L.  R.  A.  173,  SHERMAN  v.  MENOMONEE  RIVER  LUMBER  CO.  72  Wis. 

122,  39  N.  W.  365. 
\rliiiciioe   of  fellow   servant. 

Cited  in  footnote  to  Stringham  v.  Stewart,  1  L.  R.  A.  484,  which  holds  master 
not  liable  for  injury  to  servant  from  breaking  of  elevator  rope  through  negli- 
gence of  engineer. 

Distinguished  in  Craven  v.  Smith,  89  Wis.  125,  61  N.  W.  317,  holding  master 
not  liable  for  injuries  to  eleven-year-old  employee  due  to  negligence  of  fellow 
servant;  Porter  v.  Silver  Creek  &  M.  Coal  Co.  84  Wis.  425,  54  N.  W.  1019,  hold- 
ing injury  to  carpenter  repairing  chute  due  to  negligence  of  coservant  dropping 
cable  therein. 
Who  are  fellow  servants. 

Cited  in  footnote  to  Fisher  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  16  L.  R.  A. 
519,  which  holds  section  foreman  a  vice  principal  in  duty  to  warn  a  conductor 
of  obstruction  on  track. 

Cited  in  notes  (49  L.  R.  A.  795)  on  who  are  fellow  servants;   (54  L.  R.  A.  172) 
on  vice  principalship  as  determined  with  reference  to  character  of  act  causing 
injury. 
Concnrrent   negligence   of   master   and   fellow   servant. 

Cited  in  Cowan  v.  Chicago,  M.  &  St.  P.  R.  Co.  80  Wis.  291,  50  N.  W.  180, 
holding  it  no  defense  that  coservant  contributed  to  accident  resulting  from  de- 
fective brake-rod  not  properly  inspected;  Deserant  v.  Cerillos  Coal  R.  Co.  178 
U.  S.  420,  44  L.  ed.  1133,  20  Sup.  Ct.  Rep.  967,  holding  master's  liability  for 
injuries  from  defective  ventilation  of  mines  not  relieved  by  coemployee  disre- 
garding instructions;  Cudahy  Packing  Co.  v.  Anthes,  54  C.  C.  A.  506,  117  Fed.  120, 
holding  that  coservant's  negligence  in  running  elevator  does  not  excuse  defect  in 
elevator  rope;  McClure  v.  Sparta,  84  Wis.  275,  36  Am.  St.  Rep.  924,  54  N.  W. 
337,  holding  city  liable  though  owner  did  not  properly  guard  hatchway  in  side- 
walk; Grant  v.  Keystone  Lumber  Co.  119  Wis.  237,  96  N.  W.  535,  holding  mas- 
ter liable  for  injury  to  servant  due  to  defective  machinery  operated  by  fellow 
servant;  Herring  v.  E.  I.  Du  Pont  de  Nemours  Powder  Co.  139  Wis.  416,  121  N. 
W.  170,  holding  master  liable  although  defect  is  effective  only  in  conjunction  with 


1  L.R.A.  173]  L.  R.  A.  CASES  AS  AUTHORITIES.  32 

negligence  of  fellow  servant  in  failing  to  adjust  an  appliance;  Tanner  v.  Harper, 
32  Colo.  164,  75  Pac.  404,  holding  master  liable  where  car  fell  into  improperly 
protected  mine  shaft  though  a  trammer  was  also  negligent  in  handling  the  car; 
Klaffke  v.  Bittendorf  Axle  Co.  125  Iowa,  226,  100  N.  W.  1110,  holding  same 
as  to  hydraulic  press  which  was  prone  to  start  of  itself  but  where  fellow  servant 
also  failed  to  block  its  mechanism;  Trickey  v.  Clark,  50  Or.  520,  93  Pac.  457, 
holding  same  where  ungearing  lever  was  equipped  with  defective  block  and  fel- 
low servant  fell  against  the  lever  setting  a  saw  mill  in  motion. 

Cited  in  footnote  to  Noble  v.  Bessemer  S.  S.  Co.  54  L.  R.  A.  456,  which  holds 
master  liable  for  injury  by  defective  tool  procured  by  fellow  servant. 

Cited  in  notes   (7  L.  R.  A.  503)   upon  the  combined  negligence  of  master  and 
coservant;    (16  L.  R.  A.  821)    on  proximate  cause  in  its  relation  to  liability  of 
master  for  combined  negligence  of  master  and  servant. 
Master's  doty  as  to  machinery. 

Cited  in  footnotes  to  Kehler  v.  Schwenk,  13  L.  R.  A.  375,  which  holds  dis- 
cretion in  master  absolute,  to  select  from  various  styles  of  apparatus  in  use; 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Buck,  2  L.  R.  A.  521,  which  holds  master  liable 
for  using  car  with  reach  rod  to  brake  beam  missing;  Pittsburg  &  L.  E.  R.  Co. 
v.  Henley,  15  L.  R.  A.  384,  which  holds  railroad  might  adopt  one  device  for 
coupling  cars  without  discarding  another;  Minty  v.  Union  P.  R.  Co.  4  L.  R.  A. 
409,  which  holds  no  presumption  of  master's  failure  to  supply  suitable  appliances; 
Lehigh  &  W.  Coal  Co.  v.  Hayes,  5  L.  R.  A.  441,  which  holds  employer  need  not  fur- 
nish best  possible  tools  and  appliances;  Duntley  v.  Inman,  P.  &  Co.  59  L.  R.  A.  785, 
which  holds  master  not  liable  for  death  of  servant  merely  because  not  furvishing 
better  belt  shifter. 
Negligence  as  question  for  jury. 

Cited  in  Maw  v.  Coast  Lumber  Co.  19  Idaho,  412,  114  Pac.  9,  holding  question 
one  for  jury,  where  different  opinions  might  well  be  entertained  upon  question 
where  plaintiff  must  have  seen  or  whether  his  attention  was  called  to  defects 
in  machine. 

1  L.  R.  A.  176,  GREGORY  v.  ROSENKRANS,  72  Wis.  220,  39  N.  W.  378. 
Title  to  crops  after  foreclosure  sale  of  land. 

Cited  in  Reily  v.  Carter,  75  Miss.  801,  65  Am.  St.  Rep.  621,  23  So.  435,  holding 
cotton  unsevered  before  confirmation  of  sale  passed  to  purchaser. 

Cited  in  note  (7  L.  R.  A.  279)   on  mortgagee  as  purchaser. 

Distinguished  in  Hayden  v.  Burkemper,  40  Mo.  App.  351,  holding  annual  crop 
severed  after  foreclosure,  while  land  still  in  possession  of  mortgagor,  belongs  to 
purchaser. 
Property  in  ice. 

Reaffirmed  on  second  appeal  in  78  Wis.  454,  47  N.  W.  832,  holding  mere  defi- 
ciency on  foreclosure  gives  mortgagee  purchasing  land  no  lien  on  ice  cut  by 
mortgagor's  lessee  before  foreclosure. 

Cited  in  footnotes  to  Mansfield  v.  Place,  18  L.  R.  A.  39,  which  holds  prescrip- 
tive right  to  all  ice  on  pond  acquired  by  cutting  on  parts  of  it;  Marsh  v.  Mc- 
Nider,  20  L.  R.  A.  333,  holding  right  to  cut  ice  belongs  to  tenant  of  land. 

1  L.  R.  A.  178,  JOCHEM  v.  ROBINSON,  72  Wis.  199,  39  N.  W.  383. 
Contributory   negrligtence. 

Cited  in  Simonds  v.  Baraboo,  93  Wis.  44,  57  Am.  St.  Rep.  895,  67  N.  W.  40, 
holding  evidence  of  custom  in  loading  and  hauling  wood  inadmissible  to  show 
contributory  negligence;  Boyce  v.  Wilbur  Lumber  Co.  119  Wis.  647,  97  N.  W.  563, 


33  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  179 

holding  admissible  on  question  of  negligence,  evidence  of  servants'  custom  o'f  rid- 
ing on  freight  car  ladders  while  switching. 

Cited  in  note   (7  L.  R.  A.  678)   on  contributory  negligence  defeating  right  of 
recovery. 
Local   method   or   custom   as   test   of   care. 

Cited  in  Rice  v.  Van  Why,  49  Colo.  22,  111  Pac.  599,  holding  general  practice 
of  other  employees  admissible  to  show  want  of  care  as  to  appliances. 

Distinguished  in  Rylander  v.  Laursen,  124  Wis.  5,  102  N.  W.  341,  holding  in 
a  purely  tort  action  negligence  of  the  defendant  in  the  use  of  appliances  in  a 
dangerous  business  is  not  to  be  tested  or  measured  by  the  usage  of  others  in  the 
same  business  in  a  given  small  locality. 
Actionable   misuse   of   streets. 

Cited  in  John  A.  Tolman  &  Co.  v.  Chicago,  240  HI.  275,  24  L.R.A.(N.S.)  102, 
88  N.  E.  488,  16  A.  &  E.  Ann.  Gas.  142,  holding  use  of  skids  is  not  of  itself 
unlawful  or  a  nuisance. 

Cited  in  notes  (8  L.  R.  A.  830)  on  use  of  streets  in  cities  and  towns;  (6  L.  R. 
A.  255)  on  injproper  use  of  street  by  railroad  company;  (14  L.  R,  A.  559)  upon 
obstruction  of  street  or  sidewalk  for  building  or  business  purposes;  (24  L.R.A. 
(N.S.)  99)  on  temporary  obstructions  in  street  for  purpose  of  loading  or  un- 
loading. 

1  L.  R.  A.  179,  STATE  v.  WABASH  R.  CO.  115  Ind.  466,  17  N.  E.  909. 
Liability   of  corporation    during:   receivership   or   lease. 

Followed  in  Godfrey  v.  Ohio  &  M.  R.  Co.  116  Ind.  33,  18  N.  E.  384,  holding  that 
company  need  not  redeem  wrong  ticket  negligently  sold  during  receivership; 
Memphis  &  C.  R.  Co.  v.  Hoechner,  14  C.  C.  A.  472,  31  U.  S.  App.  644,  67  Fed. 
458,  holding  company  not  liable  for  injury  to  servant  of  receiver. 

Cited  in  Schurr  v.  Omaha  &  St.  L.  R.  Co.  98  Iowa,  420,  67  N.  W.  280,  holding 
railroad  company  not  liable  during  receivership  for  stock  killed  on  track;  State 
v.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  135  Ind.  581,  35  N.  E.  700,  holding  con- 
solidated company  not  liable  for  penalty  incurred  by  lessee  of  one  of  the  com- 
panies extinguished  by  consolidation;  State  v.  Norfolk  &  S.  R.  Co.  152  N.  C.  787, 
26  L.R.A. (N.S.)  711,  67  S.  E.  42,  holding  a  railroad  corporation  in  the  hands 
of  receivers  is  not  indictable  for  blocking  or  obstructing  street. 

Cited  in  notes  (3  L.  R.  A.  634;  11  L.  R.  A.  481)  on  actions  against  receivers; 
(63  L.  R.  A.  235)  on  liability  of  trustee  or  receiver  for  torts  or  negligence  of 
servants;  (133  Am.  St.  Rep.  779)  on  prosecution  and  punishment  of  corporation 
in  hands  of  receiver. 

1  L.  R.  A.  179,  FLETCHER  v.  SHARPE,  116  Ind.  317,  17  N.  E.  923. 

Followed  without  special  discussion  in  Indianapolis  Bd.  of  Trade  v.  Wallace, 
117  Ind.  599,  18  N.  E.  48. 
l.i-  pendena. 

Cited  in  Warford  v.  Sullivan,  147  Ind.  18,  46  N.  E.  27,  holding  parties  acquir- 
ing liens  pending  foreclosure  bound  by  decree  as  much  as  parties  to  suit. 
Preferences   by   insolvents. 

Cited  in  Harshman  v.  Armstrong,   119  Ind.  225,  21  N.  E.  662,  holding  that 
client  may  in  good  faith  prefer  attorney  who  has  no  lien,  over  judgment  creditor; 
Studebaker  Bros.  Mfg.  Co.  v.  Bird,   119  Ind.  429,  21   N.  E.   1086,  holding  that 
insolvents  may  in  good  faith  secure  one  creditor  to  exclusion  of  others. 
By  partnership. 

Cited  in  Purple  v.  Farrington,  119  Ind.  170,  4  L.  R,  A.  537,  21  N.  E.  543,  and 
L.R.A.  Au.  Vol.  I.— 3. 


1  L.R.A.  179]  L.  R.  A.  CASES  AS  AUTHORITIES. 

Simmons  Hardware  Co.  v.  Thomas,  147  Ind.  318,  46  N.  E.  645,  holding  that  in 
absence  of  fraud  partners  may  mortgage  partnership  property  to  secure  individ- 
ual indebtedness;  Elliott  v.  Pontius,  13C  Ind.  647,  35  N.  E.  562,  holding  chattel 
mortgage  to  secure  repayment  of  township  money  used  by  firm  while  one  partner 
was  township  trustee,  valid  as  against  other  creditors;  Re  McCoy,  80  C.  C.  A.  60, 
150  Fed.  107,  holding  where  members  of  a  firm  borrow  money  on  their  individual 
credit  for  benefit  of  the  firm  the  lender  after  having  obtained  a  dividend  from 
firm's  assets  in  bankruptcy  may  have  his  claim  allowed  for  the  balance  due 
thereon  as  a  claim  against  the  individual  partners;  American  Bonding  Co.  v. 
State,  40  Ind.  App.  565,  82  N.  E.  548,  holding  a  surviving  partner  may  lawfully 
prefer  one  or  more  of  the  partnership  creditors  in  the  settlement  of  the  firm's 
business. 

Cited  in  footnote  to  Re  Baldwin,  58  L.  R.  A.  122,  which  holds  individual  lia- 
bility of  partner  created  by  signing  certificate  of  deposit  issued  by  firm,  en- 
forceable against  his  estate  in  preference  to  claims  against  partnership. 

Cited  in  notes  (29  L.R.A.  682)  on  assumption  by  partnership  of  individual 
debts  of  partners;  (43  Am.  St.  Rep.  374),  on  partner's  disposal  of  property  for 
individual  debts. 

Distinguished  in  Johnson  v.  McClary,  131  Ind.  106,  30  N.  E.  888,  holding  all 
partners  must  consent  or  ratify  to  render  security  good. 

Disapproved  in  effect  in  Jackson  Bank  v.  Durfey,  72  Miss.  977,  31  L.  R.  A. 
471,  48  Am.  St.  Rep.  596,  18  So.  456,  holding  insolvent  partners  cannot  prefer 
individual  to  exclusion  of  partnership  creditors. 
By  corporation. 

Applied  in  First  Nat.  Bank  v.  Dovetail  Body  &  Gear  Co.  143  Ind.  555,  52  Am. 
St.  Rep.  435,  40  N.  E.  810,  and  Henderson  v.  Indiana  Trust  Co.   143  Ind.  566, 
40  N.  E.  516,  permitting  corporation  to  prefer  debt  on  which  officers  individually 
liable. 
Assignment  of  assets  by  receivers. 

Cited  in  Denny  v.  Cole,  22  Wash.  376,  79  Am.  St.  Rep.  940,  61  Pac.  38,  hold- 
ing receiver  necessary  party  to  foreclosure  suit  against  partnership  property. 

1  L.  R.  A.  185,  PEEK  v.  PEEK,  77  Cal.  106,  11  Am.  St.  Rep.  244,  19  Pac.  227. 
Oral  promise  in  consideration  of  marriage. 

Cited  in  Moore  v.  Allen,  26  Colo.  200,  77  Am.  St.  Rep.  255,  57  Pac.  698,  holding 
fraudulent  oral  promise  to  convey  land  taken  out  of  statute  by  marriage  in  re- 
liance thereon;  Offult  v.  Offult,  106  Md.  244,  12  L.R.A.(N.S.)  237,  124  Am.  St. 
Rep.  491,  67  Atl.  138,  holding  same. 

Cited  in  note  (25  L.  R.  A.  571)   on  how  far  statutes  will  be  regarded  as  hav- 
ing abrogated  the  maxim  that  one  cannot  profit  by  his  own  wrong. 
Performance. 

Cited  in  Hunt  v.  Hunt,  171  N.  Y.  400,  59  L.  R.  A.  309,  64  N.  E.  159,  holding 
marriage  not  part  performance. 

Cited  in  notes  in  (3  L.R.A.(N.S.)  814)  on  taking  possession  of  realty  as  part 
performance  to  satisfy  statute  of  frauds;    (12  L.R.A.(N.S.)   234)   on  specific  per- 
formance of  contract  to  provide  for  intended  husband  or  wife;    (22  Am.  St.  Rep. 
777)  on  specific  performance  of  oral  contract  of  sale. 
Moral  obligation  as  consideration. 

Cited  in  Daily  v.  Minnick,  117  Iowa,  570,  60  L.  R.  A.  843,  91  N.  W.  913,  hold- 
ing naming  and  bearing  of  name  payment,  under  agreement  to  convey  land  in 
consideration  of  being  allowed  to  name  child;  Fidelity  &  C.  Co.  v.  Thompson, 


35  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  189 

128  Cal.  510,  61  Pac.  94,  holding  guaranty  by  widow  under  gratuitous  promise 
to  pay  husband's  debt  not  binding. 

Cited  in  notes    (12  L.  R.  A.  464)    on  unenforceable  voluntary  premises;    (53 
L.R.A.  359)   on  moral  obligation  as  consideration  for  promise;    (6  Eng.  Rul.  Cas. 
41)  on  expense  already  incurred  as  consideration  for  subsequent  promise  for  re- 
imbursement. 
Transfer  in   fraud  of  creditors. 

Cited  in  Bush  &  M.  Co.  v.  Helbing,  134  Cal.  679,  66  Pac.  967,  holding  that 
wife,  though  innocent,  cannot  retain  deed  of  gift  to  husband's  land  in  fraud 
of  creditors;  Judson  v.  Lyford,  84  Cal.  508,  24  Pac.  286,  holding  innocence  of 
grantee  of  fraudulent  conveyance  without  consideration,  immaterial;  Merchants' 
Nat.  Bank  v.  Greenhood,  16  Mont.  458,  41  Pac.  250,  holding  intent  of  grantee 
immaterial. 
I  s«-  of  .statute  of  frauds  to  protect  fraud. 

Cited  in  note  (25  L.R.A.  571)  as  to  how  far  statute  of  frauds  will  be  re- 
garded as  abrogating  maxim  that  one  cannot  profit  by  his  own  wrong. 

1  L.  R.  A.  187,  HALE  v.  GRAND  TRUNK  R.  CO.  60  Vt.  605,  15  Atl.  300. 
Liability  of  railway  mail  contractors  to  third  parties. 

Cited  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Jandera,  24  Okla.  Ill,  24  L.R.A.(N.S.) 
538,  104  Pac.  339,  20  Ann.  Cas.  316,  holding  it  duty  of  railroad  company  carrying 
mail  under  contract  to  use  reasonable  care  to  keep  platform  in  safe  condition 
to  person  mailing  letter  on  train. 

Cited  in  notes  (20  L.R.A.  528)  as  to  whom  railroads  owe  duty  of  keeping 
station  platforms  safe;  (24  L.R.A.(N.S.)  535)  on  duty  of  railroad  to  person 
on  station  grounds  to  mail  letters  on  train. 

Distinguished  in  Lawton  v.  Waite,  103  Wis.  252,  45  L.  R.  A.  619,  79  N.  W. 
321,  holding  subcontractor  to  carry  mails  not  liable  to  third  person  under  sub- 
contract. 
Hail  agents  as   passengers. 

Cited  in  note  (61  Am.  St.  Rep.  99)  on  mail  agents  or  postal  clerks  as  passengers. 
Duty  of  railroad  as  to  safe  passage  to  cars. 

Cited  in  Bacon  v.  Boston  &  M.  R.  Co.  83  Vt.  448,  76  Atl.  128,  holding  that 
public  service  commission  can  compel  railroad  to  move  tracks  so  as  to  increase 
platform  room  at  station. 
Railroad  platform  as  highway. 

Cited  in  Rudd  v.  Great  Eastern  Casualty  &  Indemnity  Co.  114  Minn.  515,  34 
L.R.A.(N.S.)  1207,  131  N.  W.  633,  holding  railway  depot  platform  a  "public  high- 
way" within  insurance  policy. 

1  L.  R.  A.  189,  ST.  JOHNSBURY  &  L.  C.  R.  CO.  v.  HUNT,  60  Vt.  588,  6  Am. 

St.  Rep.  138,  15  Atl.  186. 
Stopping  train   to   make   arrest. 

Cited  in  Brunswick  &  VV.  R.  Co.  v.  Ponder  (Ga.)  60  L.  R.  A.  715,  43  S.  E.  430, 
holding  carrier  not  liable  to  passenger  for  failing  to  interfere  with  officers  and 
prevent  illegal  arrest;  Brunswick  &  W.  R.  Co.  v.  Ponder,  117  Ga.  66,  60  L.R.A. 
715,  97  Am.  St.  Rep.  152,  43  S.  E.  430,  holding  the  same. 

Cited  in  note  (40  L.R.A. (N.S.)  1075)  on  liability  of  carrier  for  wilful  torta 
of  servants  to  passengers. 


1  L.R.A.  191J  L.  R.  A.  CASES  AS  AUTHORITIES.  30 

I  L.  R.  A.  191,  MIDDLETOWN  v.  NEWPORT  HOSPITAL,  16  R.  I.  319,  15  Atl. 

800. 
Reformation  of  Instruments. 

Cited  in  notes   (65  Am.  St.  Rep.  485,  488,  505)   on  reformation  of  contracts; 
(28  L.R.A.(N.S.)    796)    on  reformation  of  instrument  for  mistake  of  law   as  to 
its  effect. 
What   covenants   run   with    the   laud. 

Cited  in  footnotes  to  Doty  v.  Chattanooga  Union  R.  Co.  48  L.  R.  A.  160,  hold- 
ing covenant  to  run  certain  trains  as  chief  consideration  for  right  of  way,  runs 
with  the  land;  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes  agreement 
for  party  wall,  expressly  made  to  run  with  land,  as  running  with  the  land. 

Cited  in  note   (82  Am.  St.  Rep.  667,  671),  on  what  covenants  run  with  the 
land. 
Enforcement  of  contract. 

Cited  in  footnote  to  Hodges  v.  Rowing,  7  L.  R.  A.  87,  which  holds  suit  for 
specific  performance  of  contract  for  sale  of  land  cannot  be  defeated  because  of 
remedy  at  law. 

Cited  in  notes  (3  L.R.A.(N.S.)  99)  on  enforcement  in  equity  of  agreements 
relating  to  but  not  running  with  land;  (126  Am.  St.  Rep.  374)  on  liability  of 
grantee  on  covenants  and  conditions  in  deed;  (15  Eng.  Rul.  Cas.  282)  on  neces- 
sity of  purchaser  observing  restrictive  stipulations  known  to  him. 

Distinguished  in  Kettle  River  R,  Co.  v.  Eastern  R.  Co.  41  Minn.  474,  6  L.  R.  A. 
118,  43  N.  W.  469,  holding  agreement  for  exclusive  transportation  of  products 
by  railway  with  owner  of  land  over  which  it  was  built,  not  enforceable  against 
lessee  of  land. 
Ladies. 

Cited  in  notes    (8  L.  R.  A.  248)   on  equitable  rule  as  to  laches  depending  on 
circumstances;    (10  L.  R.  A.  127)   on  laches. 
Notice. 

Cited  in  Westerly  Sav.  Bank  v.  Stillman  Mfg.  Co.  16  R.  I.  500,  17  Atl.  918, 
holding  defective  mortgage  good  between  parties  valid  as  to  subsequent  mortga- 
gees or  purchasers  with  notice. 
Hijilii   to  u-lvc  sand,  gravel,  seaweed,  etc. 

Cited  in  Carr  v.  Carpenter,  22  R.  I.  535,  53  L.  R.  A.  336,  footnote,  p.  333,  48 
Atl.  805,  holding  littoral  proprietor  entitled  to  stranded  seaweed. 
"Validity   of   restrictions   in   deed. 

Cited  in  note  (95  Am.  St.  Rep.  219)  on  validity  of  conditions  and  restrictions 
in  deed. 
•Creation  of  easements  appurtenant. 

Cited  in  note  (136  Am.  St.  Rep.  693)  on  creation  and  conveyance  of  easements 
appurtenant. 

1  L.  R.  A.  198,  PARK  v.  RICHMOND  &  I.  TURNP.  CO.  10  Ky.  L.  Rep.  384,  9 
S.  W.  252,  423. 

1  L.  R.  A.  199,  FIRST  NAT.  BANK  v.  BUCHANAN,  87  Tenn.  32,  10  Am.  St.  Rep.. 

617,  9  S.  W.  202. 
What  constitutes  payment. 

Cited  in  Godfrey  v.  Crisler,  121  Ind.  206,  22  N.  E.  999,  holding  debt  not  dis- 
charged by  expressly  accepting,  in  ignorance  of  facts,  paper  which  maker  had  no 
capacity  to  execute;  Williams  v.  Costello,  95  Ala.  593,  11  So.  7,  holding  mere 


37  L.  R.  A.  (ASKS  AS  AUTHORITIES.  [1  L.R.A.  201 

acceptance  by  creditor  from  debtor  of  check  on  a  bank,  or  the  obligation  of 
a  third  person  without  more,  will  not  be  regarded  as  other  than  a  conditional 
payment. 

Cited  in  note  (35  L.R.A.  (N.S.)  71,  74)  on  payment  by  commercial  paper. 
Discharge  of  surety. 

Cited  in  Douglass  v.  Ferris,  63  Hun,  416,  18  N.  Y.  Supp.  685,  holding  guard- 
ian's sureties  not  discharged  by  fraudulent  payment  in  worthless  securities; 
Frederick-Town  Sav.  Inst.  v.  Michael,  81  Md.  508,  33  L.  R.  A.  637,  32  Atl.  189, 
340  (dissenting  opinion),  majority  holding  surety  discharged  by  acceptance  of 
new  and  valid  note  secured  by  mortgage  subsequently  vacated  as  illegal  prefer- 
ence. 

Cited  in  notes  (33  L.R.A.  628)  on  liability  of  obligors  on  an  original  con- 
tract as  affected  by  a  renewal  or  substituted  contract  which  is  void;  (13  L.R.A, 
(N.S.)  205)  on  payment  of  note  by  maker,  which  proves  ineffectual  as  a  satis- 
faction, as  affecting  liability  of  surety;  (16  L.R.A. (N.S.)  343)  as  to  whether 
surety  is  discharged  by  obligee's  acceptance  of  new  but  defective  obligation; 
(28  Am.  St.  Rep.  692)  on  what  will  discharge  surety. 

1  L.  R.  A.  201,  THOMPSON  v.  PECK,  115  Ind.  512,  18  N.  E.  16. 
Prerequisites  to  snit  for  goods  purchased  by  fraud. 

Cited  in  Peninsular  Stove  Co.  v.  Ellis,  20  Ind.  App.  494,  51  N.  E.  105,  hold- 
ing bona  fide  mortgagee  of  goods  from  fraudulent  purchaser  before  disafiirmance, 
not  affected  by  the  fraud;  John  H.  Hibben  Dry  Goods  Co.  v.  Hicks,  26  Ind.  App. 
649,  59  N.  E.  938,  holding  purchaser  of  goods  on  credit  obtained  by  fraudulent 
statement,  absolute  owner  until  disaffirmance ;  Citizens'  Street  R.  Co.  v.  Hor- 
ton,  18  Ind.  App.  339,  48  N.  E.  22,  holding  disaffirmance  of  voidable  contract 
and  restoration  of  status  quo,  necessary;  W.  M.  S.  Merrill  Chemical  Co.  v.  Nick- 
ells,  66  Mo.  App.  690,  2  S.  W.  1378,  holding  fraudulent  purchaser  not  liable  in 
replevin  before  rescission;  Westhafer  v.  Patterson,  120  Ind.  462,  16  Am.  St.  Rep, 
330,  22  N.  E.  414,  refusing  to  set  aside  deed  given  for  land  conveyed  by  deed 
defectively  acknowledged,  where  no  offer  was  made  by  plaintiff  to  reconvey;  John 
H.  Hibben  Dry  Goods  Co.  v.  Hicks,  26  Ind.  App.  650,  59  N.  E.  938,  holding  that 
vendor  who  accepts  and  retains  after  action,  note  for  balance  of  account,  cannot 
recover  in  replevin;  Pangborn  v.  Ruemenapp,  74  Mich.  578,  42  N.  W.  78,  holding 
fraudulent  vendee  entitled  to  tender  of  purchase  money  note  before  replevin; 
Adam,  M.  &  A.  Co.  v.  Stewart,  157  Ind.  682,  87  Am.  St.  Rep.  240,  61  N.  E.  1002,. 
holding  replevin  not  maintainable  by  one  induced  by  fraud  to  sell  on  credit  with- 
out paying  or  tendering  the  amount  received;  Mahoney  v.  Gano,  2  Ind.  App.  111,. 
27  N.  E.  315,  holding  bringing  of  action  for  possession  of  goods  wrongfully  ob- 
tained sufficient  disaffirmance  of  voidable  contract;  Baldwin  v.  Hutchison,  8- 
Ind.  App.  460,  35  N.  E.  711,  holding  demand  not  required  before  suit  for  money 
paid  in  consideration  of  voidable  agreement  not  to  prosecute;  Cowen  v.  Bloom- 
berg, 66  N.  J.  L.  386,  49  Atl.  451,  holding  production  on  trial  in  replevin  of 
notes  given  for  goods  fraudulently  purchased  on  credit  sufficient;  Bowden  v. 
Spellman,  59  Ark.  259,  27  S.  W.  602,  holding  offer,  on  trial,  by  creditor  seeking 
to  set  aside  sale  of  goods  in  fraud  of  creditors,  to  return  to  fraudulent  vendee 
purchase-money  notes  assigned  to  him,  sufficient. 

Cited  in  notes  (2  L.  R.  A.  155)  on  remedy  of  defrauded  seller;  (21  L.  R.  A. 
206)  on  necessity  of  returning  consideration  before  bringing  replevin  for  prop- 
erty obtained  by  fraudulent  purchase;  (14  Am.  St.  Rep.  724)  on  rescission  of 
contracts  for  fraud;  (80  Am.  St.  Rep.  765)  as  to  when  replevin  or  claim  and 
delivery  is  sustainable. 


1  L.R.A.  201]  L.  R.  A.  CASES  AS  AUTHORITIES.  3s 

Distinguished  in  John  V.  Farwell  Co.  v.  Hilton,  39  L.  R.  A.  581,  84  Fed.  294, 
holding  replevin  lies  without  tender  of  partial  payment,  if  fraudulent  purchaser 
has  realized  greater  amount  from  sales. 
What  constitutes   fraud   in  purchase  on  credit. 

Cited  in  Levi  v.  Bray,  12  Ind.  App.  14,  39  X.  E.  754,  holding  purchaser's  knowl- 
edge of  excess  of  debts  over  assets  not  justify  setting  aside  sale  of  goods  in 
vendee's  possession  and  control;  Sweet  v.  Campbell,  14  Ind.  App.  571,  43  N.  E. 
236,  holding  insolvency  of  one  purchasing  on  credit  without  misrepresentation 
or  suppression  of  facts  not  authorize  vendor  to  recover  possession ;  Franklin 
Sugar  Ref.  Co.  v.  Collier,  89  Iowa,  73,  56  N.  W.  279,  holding  order  of  goods  on 
credit  by  an  insolvent  not  fraudulent  unless  coupled  with  intent  not  to  pay  there- 
for; Vermont  Marble  Co.  v.  Smith,  13  Ind.  App.  462,  41  N.  E.  973,  holding 
firm's  failure  to  disclose  existence  of  individual  debts  of  members  not  fraud 
authorizing  rescission  of  sale  to  firm. 

Cited  in  note    (2  L.  R.  A.  154)    on  fraudulent  representations  of  solvency. 

Limited  in  Hart  v.  Moulton,  104  Wis.  357,  76  Am.  St.  Rep.  881,  80  N.  W.  599, 
holding  fraudulent  purchase  actionable  without  intent  not  to  pay. 
Presumption   of   fraud   from   subsequent   mortgage   by   purchaser. 

Cited  in  West  v.  Graff,  23  Ind.  App.  415,  55  N.  E.  506,  holding  purchase  not 
presumed  fraudulent  because  of  knowledge  of  insolvency,  and  subsequent  mort- 
gaging of  stock  to  secure  bona  fide  debts. 
Title  to  property  purchased  by   fraud. 

Cited  in  Kingman-Moore   Implement  Co.   v.   Ellis,   125   Mo.   App.   702,   103   S. 
W.  127;  Sonnesyn  v.  Akin,  14  N.  D.  268,  104  N.  W.  1026,— holding  until  vendor 
makes  his  election  to  rescind  the  title  remains  in  purchaser. 
Sufficiency  of  tender  to  rescind  contract. 

Cited  in  Opperman  v.  Citizens'  Bank,  44  Ind.  App.  403,  85  N.  E.  991,  holding 
it  unnecessary  for  wife  to  return  anything  to  recover  stock  assigned  by  her  as 
security  for  husband;  Jarrett  v.  Caul  dwell,  47  Ind.  App.  481,  94  X.  E.  790,  hold- 
ing that  failure  to  tender  return  of  small  part  of  consideration  through  mistake 
defeats  right  to  recover  in  replevin;  Olson  v.  Brison,  129  Iowa,  606,  106  N.  W. 
14,  holding  tender  at  commencement  of  action  of  return  of  consideration  suffi- 
cient. 
Payment  by  commercial  paper. 

Cited  in  note  (35  L.R.A.  (XJ3.)  7)  on  payment  by  commercial  paper. 

1  L.  R.  A.  203,  RICHARDSON  v.  EVELAND,  126  111.  37,  18  N.  E.  308. 
Ademptioii  of  legacy. 

Cited  in  Tanton  v.  Keller,  61  111.  App.  632,  holding  legacy  given  to  pay  debt 
of  another  legatee  adeemed  by  subsequent  payment  of  debt  by  testator;  Davis  v. 
Close,  104  Iowa,  263,  73  N.  W.  600,  holding  legacy  of  amount  to  be  deducted 
from  notes  due  testator  adeemed  by  testator's  surrender  of  the  notes. 

Cited  in  footnote  to  Carmichael  v.  Lathrop,  32  L.  R.  A.  232,  which  holds 
legacies  adeemed  pro  tanto  by  conveyance  of  realty  as  gift,  if  so  intended. 

Cited  in  notes    (38  L.R.A.(X.S.)    589,  591,  592,  593,  594)    on  gift  by  testator 
as  ademption  of  general  legacy  to  donee;    (95  Am.  St.  Rep.  344,  346,   354)    on 
ademption  of  legacy;    (2   Eng.   Rul.   Cas.   55)    on   presumption  of  ademption  of 
legacy  for  specific  purpose  by  subsequent  gift  by  testator  for  same  purpose. 
Parol  evidence  of  testator's   intention. 

Cited  in  Lomax  v.  Shinn,  162  111.  129,  44  N.  E.  495,  holding  evidence  that  tes- 
tators owned  no  other  realty  than  that  mentioned  in  will  admissible  to  show 
testator's  intention. 


39  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  207 

Error   In    admitting    evidence. 

Cited  in  Cheney  v.  Beaty,  69  111.  App.  403,  holding  decree  in  chancery,  sup- 
ported by  sufficient  competent  evidence,  not  reversible  for  admission  of  incom- 
petent evidence;  Re  McGee,  5  App.  Div.  528,  38  N.  Y.  Supp.  1062,  holding  sur- 
rogate's order,  supported  by  sufficient  competent  evidence,  not  reversible  for 
admission  of  incompetent  evidence. 
Presumptions  on  appeal. 

Cited  in  Oliver  v.  McJJowell,  100  111.  App.  49,  holding  that  it  will  be  presumed 
that  chancellor  considered  only  competent  evidence. 

1  L.  R.  A.  207,  WABASH,  ST.  L.  &  P.  R.  CO.  v.  McDOUGALL,  126  111.  Ill,  9 

Am.  St.  Rep.  539,  18  N.  E.  291. 
Authority  of  attorney. 

Cited  in  Rubel  v.  Title  Guarantee  &  T.  Co.  199  111.  115,  64  N.  E.  1033,  hold- 
ing unauthorized  stipulation  by  attorney  for  railroad  company  as  to  deductions 
from  amount  allowed  not  binding;  Chicago  General  R.  Co.  v.  Murray,  174  111. 
262,  51  N.  E.  245,  and  Toluca,  M.  &  N.  R.  Co.  v.  Haws,  194  111.  95,  62  N.  E. 
312,  holding  stipulation  by  counsel  as  to  mode  of  constructing  roadbed  properly 
excluded,  where  authority  to  make  it  not  shown. 

Cited  in  note  (132  Am.  St.  Rep.  156)  on  implied  authority  of  attorney  in  con- 
ducting litigation. 
Measure  of  damages  in  eminent  domain;  set-off. 

Cited  in  Illinois  C.  R.  Co.  v.  Turner,  194  111.  579,  62  N.  E.  798,  holding  as 
measure  of  damages  to  land  not  taken  difference  in  market  value  before  and 
after  construction  of  road;  Metropolitan  West  Side  Elev.  R.  Co.  v.  Stickney,  150 
111.  379,  26  L.  R.  A.  777,  37  N.  E.  1098,  holding  as  measure  of  damages  to  land 
not  taken  for  railroad  the  difference  in  value  before  and  after  the  construction 
of  the  road  after  allowing  for  benefits  therefrom;  Chicago  &  M.  Electric  R.  Co. 
v.  Mawman,  206  111.  183,  69  N.  E.  66,  holding  danger  to  owner  of  land  from  rail- 
road not  an  element  of  damage  in  condemnation;  Osgood  v.  Chicago,  154  111.  198, 
41  N.  E.  40,  Affirming  44  111.  App.  534,  allowing  benefits  to  be  set  off  against 
damages  to  abutting  property  from  construction  of  bridge  and  its  approaches; 
Indianapolis  &  C.  Traction  Co.  v.  Larrabee,  168  Ind.  241,  10  L.R.A.(N.S.)  1007, 
80  N.  E.  413,  11  A.  &  E.  Ann.  Cas.  695,  holding  the  value  of  the  right  of  way 
with  the  incidental  damages  naturally  arising  from  the  proper  construction 
and  use  of  the  railroad,  but  not  the  danger  to  occupant  nor  his  stock  on  the 
farm  are  elements  of  damages  in  a  proceeding  to  condemn  a  right  of  way. 

Cited  in  note  (9  L.R.A.(X.S.)  816)  on  right  to  set  off  benefits  against  damages 
on  condemnation. 
Effect   on   award   of  change   of   plan. 

Cited  in  Chicago  &  W.  I.  R.  Co.  v.  Cogswell,  44  111.  App.  399,  allowing  addi- 
tional damages  resulting  from  change  of  plan  for  constructing  railroad;  Maltman 
v.  Chicago,  M.  &  St.  P.  R.  Co.  41  111.  App.  235,  holding  further  damages  recov- 
erable by  abutting  owners  on  laying  of  additional  railroad  tracks  in  street. 

Distinguished  in  Kotz  v.  Illinois  C.  R.  Co.  188  111.  583,  59  N.  E.  240,  holding 
abutting  owner  not  entitled  to  further  damages  on  elevation  of  railroad  track. 
Giving  data  for  estimating  benefits. 

Cited  in  Washington  Ice  Co.  v.  Chicago.  147  111.  334,  37  Am.  St.  Rep.  222,  35 
N.  E.  378,  requiring  data  from  which  estimate  of  benefits  from  opening  street 
can  be  made,  to  be  furnished  in  some  manner. 
Effect  of  withdrawal  of  objection   to  evidence. 

Cited  in  Wilkinson  v.  Service,  249  111.  152,  94  N.  E.  50,  Ann.  Cas.  1912  A,  41, 


1  L.R.A.  207]  L.  R.  A.  CASES  AS  AUTHORITIES.  40 

holding   exclusion   of   evidence   not   error,   where   objection   is   withdrawn    while 
witness  is  in  court  room. 

1  L.  R.  A.  211,  BUTLER  v.  PEOPLE,  125  111.  641,  8  Am.  St.  Rep.  423,  18  N.  E. 
338. 

Cited  in  Wohlford  v.  People,  45  111.  App.  191,  as  having  been  read  to  jury. 
Criminal   liability  for  act   of  another. 

Cited  in  Taylor  v.  State,  41  Tex.  Crim.  Rep.  571,  55  S.  W.  961,  holding  train 
robbers  responsible  for  death  of  fireman  taken  by  them  to  place  of  danger,  where 
killed  in  exchange  of  shots  between  themselves  and  passenger;  Com.  v.  Moore, 
121  Ky.  101,  2  L.R.A.(N.S.)  721,  123  Am.  St.  Rep.  189,  88  S.  W.  1085,  11  A. 
&  E.  Ann.  Cas.  1024,  holding  in  order  that  one  may  be  guilty  of  homicide  he 
must  do  the  act  or  it  must  be  done  by  some  one  acting  in  concert  with  him. 

Cited  in  note    (68  L.R.A.   193,  201,  203,  208,  209,  212,  214)    on  homicide   in 
carrying  out  unlawful  conspiracy. 
Homicide   by   killing:   of   person   not   intended. 

Cited  in  notes  (63  L.  R.  A.  660,  662)  on  homicide  by  unlawful  act  aimed  at 
another  than  the  one  killed;  (2  L.R.A.  (N.S.)  719)  on  accidental  killing  of  by- 
stander by  shooting  in  self-defense;  (16  Am.  St.  Rep.  20)  on  homicide  by  killing 
person  by  mistake;  (90  Am.  St.  Rep.  577)  on  unintentional  homicide  in  com- 
mission of  unlawful  act. 
Principal  and  accessory. 

Cited  in  note  (13  L.  R.  A.  196)   on  all  aiders  and  abettors  being  principals. 
Statutes  defining:  homicide. 

Cited  in  People  v.  Davis,  1  111.  C.  C.  232,  as  recognizing  common  law  defini- 
tions of  murder  under  the  statutes. 

1  L.  R.  A.  213,  ILLINOIS  C.  R.  CO.  v.  HOUGHTON,  126  111.  233,  9  Am.  St.  Rep. 

581,  18  N.  E.  301. 
Oral  declarations  as  to  possession. 

Cited  in  Knight  v.  Knight,  178  111.  557,  53  N.  E.  306,  holding  admissible  as 
res  gestce  oral  declarations  of  ownership  by  one  in  possession. 
Nature   of  company's   estate   in   right   of  way. 

Cited  in  Walker  v.  Illinois  C.  R.  Co.  215  111.  616,  74  N.  E.  812.  holding  easement 
in  right  of  way  absolute  for  purporse  for  which  acquired. 

Cited  in  footnotes  to  Gurney  v.  Minneapolis  Union  Elevator  Co.  30  L.  R.  A. 
534,  which  holds  railroad  company  entitled  to  erect  warehouse  on  land  con- 
demned; Kyle  v.  Texas  &  N.  O.  R.  Co.  4  L.  R.  A.  276,  which  holds  owner  not 
estopped  to  deny  railroad  company's  right  to  condemn  land  by  permitting  it  to 
use  same;  Narron  v.  Wilmington  &  \V.  R.  Co.  40  L.  R.  A.  415,  which  holds  that 
railroad  company  cannot  acquire  easement  by  occupation  in  land  taken  by  right 
of  eminent  domain;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Smith,  2  L.  R,  A.  281,  which  holds 
covenant  running  with  land  not  created  by  deed  stipulating  for  maintenance  of 
fence  by  railroad  company;  Peden  v.  Chicago,  R.  I.  &  P.  R.  Co.  4  L.  R.  A.  401, 
which  holds  company  liable  for  breach  of  covenant  as  to  flow  of  water;  Flick- 
inger  v.  Shaw,  11  L.  R.  A.  134,  which  holds  vested  right  of  way  acquired  by 
construction  of  irrigation  ditch  under  parol  agreement;  Snell  v.  Levitt,  1  L.  R. 
A.  414,  as  to  how  easements  may  be  lost. 

Cited  in  notes  (10  L.  R.  A.  484)  on  right  by  prescription  to  use  of  lands  of 
another;  (8  L.  R.  A.  618)  on  rights  of  parties  in  easements;  (8  L.  R.  A.  575)  on 
easement  to  flowage  of  water;  (8  L.  R.  A.  472)  on  right  of  owner  of  soil  to  use 
of  highway;  (18  L.  R.  A.  540)  on  effect  of  nonuser  of  easement. 


41  L.  R.  A.  GASES  AS  AUTHORITIES.  [1  L.R.A.  213 

Acquisition   of  title  to  right   of  way  by  adverse  po»sension. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Stickley,  155  Ind.  316,  58  N.  E. 
192,  holding  railroad  not  a  public  highway  so  as  to  prevent  acquiring  title  to 
right  of  way  by  adverse  possession;  Illinois  C.  R.  Co.  v.  O'Connor,  154  111.  556, 
39  N.  E.  563,  and  Illinois  C.  R.  Co.  v.  Moore,  160  111.  16,  43  N.  E.  364,  holding 
company's  estate  in  right  of  way  subject  to  adverse  possession;  Northern  P.  R. 
Co.  v.  Ely,  25  Wash.  395,  54  L.  R.  A.  532,  87  Am.  St.  Rep.  766,  60  Pac.  555,  and 
Northern  P.  R.  Co.  v.  Hasse,  28  Wash.  358,  92  Am.  St.  Rep.  840,  68  Pac.  882, 
holding  that  title  to  land  granted  by  Congress  as  right  of  way  may  be  acquired 
by  adverse  possession;  Northern  P.  R.  Co.  v.  Ely,  25  Wash.  395,  54  L.  R.  A.  532, 
87  Am.  St.  Rep.  766,  65  Pac.  555,  holding  that  railroad  company  cannot  defeat 
title  of  settlers  acquired  by  adverse  possession,  on  ground  that  right  of  way 
granted  for  public  purposes;  St.  Louis  &  S.  F.  R.  Co.  v.  Ruttan,  90  Ark.  180,  118 
S.  W.  705,  holding  statute  of  limitations  operates  against  railroad  corporations 
whose  lands  are  held  adversely  as  well  as  against  individuals;  Chicago,  B.  & 
Q.  R.  -Co.  v.  Abbott,  215  111.  426,  74  N.  E.  412,  holding  possession  by  railroad 
company  of  strip  of  land  fenced  in  by  it  as  its  right  of  way  does  not  carry  with 
it  possession  of  strip  of  land  outside  of  fences  and  indorsed  by  adjoining  owner 
and  held  by  him  under  claim  of  right  for  twenty  years. 

Cited  in  footnote  to  Southern  P.  R.  Co.  v.  Hyatt,  54  L.  R.  A.  522,  which  holds 
that  title  to  right  of  way  cannot  be  acquired  by  adverse  possession. 

Cited  in  notes  (4  L.R.A.  646)   on  adverse  possession  in  case  of  easements  and 
servitudes;    (87  Am.  St.  Rep.  781)    on  right  to  acquire  title  by  adverse  posses- 
sion to  lands  held  by  railroad. 
Sufficiency   of   adverse   possession. 

Cited  in  Glencoe  v.  Wadsworth,  48  Minn.  403,  51  N.  W.  377,  holding  tortious 
entry  on  land  without  color  of  title  may  ripen  into  title;  Knight  v.  Knight,  178 
111.  559,  53  N.  E.  306,  holding  possession  of  grantor  may  become  adverse  without 
formal  disclaimer  of  title  conveyed  by  deed. 

Cited  in  notes  (6  L.  R.  A.  833)  on  sufficiency  of  occupation  to  constitute  ad- 
verse possession;  (13  L.R.A.  207)  on  sufficiency  of  adverse  possession;  (15  L.R.A. 
(N.S.)  1189,  1192,  1196,  1208,  3211,  1229)  on  necessity  of  color  of  title,  not  ex- 
pressly made  a  condition  by  statute,  in  adverse  possession;  (11  Am.  St.  Rep. 
307)  on  adverse  possession  defeating  right  of  action  of  holder  of  legal  title; 
(11  Am.  St.  Rep.  342)  on  adverse  possession. 
Of  rig-lit  of  way. 

Approved  in  Illinois  C.  R.  Co.  v.  O'Connor,  154  111.  555,  39  N.  E.  563,  holding 
title  to  right  of  way  acquired  by  inclosing  with  farm  lands  and  cultivating  and 
pasturing  for  over  twenty  years;  Illinois  C.  R.  Co.  v.  Moore,  160  111.  16,  43  N. 
E.  364,  and  Illinois  C.  R.  Co.  v.  Wakefield,  173  111.  569,  50  N.  E.  1002,  holding 
title  to  part  of  right  of  way  outside  of  fence  constructed  by  railroad  company 
acquired  by  adverse  possession  for  twenty  years. 

Cited  in  Wilmot  v.  Yazoo  &  M.  Valley  R.  Co.  76  Miss.  386,  24  So.  701,  holding 
manifestation  of  adverse  possession  , of  right  of  way  by  hostile  acts  necessary; 
Chicago  &  N.  W.  R.  Co.  v.  Gait,  133  111.  671,  23  N.  E.  425,  holding  title  by  ad- 
verse possession  not  acquired  by  mere  acts  of  trespass  on  vacant  and  uninclosed 
lands;  Vicksburg  &  M.  R.  Co.  v.  Barrett,  67  Miss.  588,  7  So.  549,  holding  rail- 
road company,  to  which  right  of  way  "not  to  exceed  100  feet"  conveyed,  bound 
by  failure  to  object  to  grantor's  fixing  at  less  width;  Ohio  River  R.  Co.  v.  John- 
son, 50  W.  Va.  508,  40  S.  E.  407,  holding  adverse  possession  of  land  not  conveyed 
confined  to  land  actually  occupied. 

Cited  in  footnote  to  Atchison,  T.  &  S.  R.  Co.  v.  Conlon,  53  L.  R,  A.  781,  which 


1  L.R.A.  213]  L.  R.  A.  CASES  AS  AUTHORITIES.  42 

holds  prescriptive  right  to  use  gates  and  farm  crossing  not  acquired  by  use  un- 
der license  from  company. 

Cited  in  notes  (1  L.R.A.(N.S.)  566)  on  inclosure  of  right  of  way  as  adverse 
possession;  (2  L.R.A.(X.S.)  273)  on  adverse  possession  of  railroad  right  of  way. 
Effect  of  adverse  possession  on  private  easement. 

Cited  in  Swedish  Evangelist  Lutheran  Church  v.  Jackson,  229  111.  511,  82  N. 
E.  348,  holding  twenty  years  uninterrupted  possession  bars  private  easement. 

1  L.  R.  A.  216,  SMITH  v.  NIAGARA  F.  INS.  CO.  60  Vt.  682,  6  Am.  St.  Rep.  144, 

15  Atl.  353. 
Error   as   to   unanswered   question. 

Cited  in  Houston  v.  Brush,  66  Vt.  340,  29  Atl.  380,  holding  unanswered  ques- 
tion not  error;  State  v.  Burpee,  65  Vt.  5,  19  L.  R.  A.  148,  36  Am.  St.  Rep.  775, 
25  Atl.  964,  and  State  v.  Fitzgerald,  72  Vt.  144,  47  Atl.  403,  holding  improper 
question  unanswered,  immaterial;  Fuller  v.  Valiquette,  70  Vt.  503,  41  Atl.  579, 
and  Carpenter  v.  Willey,  65  Vt.  176,  26  Atl.  488,  holding  necessary,  offer  to  show 
what  answer  to  excluded  question  would  be;  State  v.  Clifford,  59  W.  Va.  32, 
52  S.  E.  981,  holding  a  refusal  of  the  court  to  permit  a  witness  to  answer  was 
net  available  as  error  where  the  expected  answer  was  not  disclosed  to  court  at 
time  of  ruling. 
Presumption  of  payment  of  mortgagee. 

Cited  in  Crahan  v.  Chittenden,  82  Vt.  415,  74  Atl.  86,  holding  mortgagee  lost 
his  right  of  entry  on  condition  broken  where  mortgagor  continued  in  possession 
with  no  acknowledgment  of  the  existence  of  the  indebtedness  for  over  fifteen 
years. 

Cited  in  note  (18  Am.  St.  Rep.  881)   on  presumption  of  payment  from  lapse 
of  time. 
Lien   on   insured   property. 

Cited  in  German-American  Ins.  Co.  v.  Humphrey,  62  Ark.  350,  54  Am.  St.  Rep. 
297,  35  S.  W.  428,  holding  record  of  satisfaction  of  mortgage  not  essential  to  its 
removal  as  encumbrance;  Continental  Ins.  Co.  v.  Vanlue,  126  Ind.  413,  10  L.  R. 
A.  845,  26  N.  E.  119,  holding  lien  of  judgment  ceased  on  payment  without  entry 
of  satisfaction;  Raulet  v.  Northwestern  Nat.  Ins.  Ce.  157  Cal.  220,  107  Pac.  292r 
holding  that  chattel  mortgage  as  security  for  rent  does  not  avoid  policy  pro- 
viding for  avoidance  if  property  is  encumbered  with  chattel  mortgage;  Rowland 
v.  Home  Ins.  Co.  82  Kan.  221,  108  Pac.  118,  holding  a  mortgage  to  secure  a  note 
payable  more  than  a  year  from  date  under  a  lease  not  to  commence  until  a 
certain  time  in  the  future  is  not  an  encumbrance  where  the  insured  property  i& 
destroyed  before  the  commencement  of  the  term. 

Cited  in  footnote  to  Nussbaum  v.  Northern  Ins.  Co.  1  L.  R.  A.  704,  which 
holds  deed  to  secure  debt  with  reservation  of  balance  and  right  to  redeem  not 
alienation  avoiding  policy. 

Cited  in  note   (8  L.  R,  A.  74)   upon  breach  of  condition  as  to  encumbrance  in 
policy. 
Effect   of  warranty. 

Cited  in  footnote  to  Globe  Mut.  L.  Ins.  Asso.  v.  Wagner,  52  L.  R.  A.  649,  which 
holds  that  false  statement  that  none  of  applicant's  brothers  are  dead  will  not 
avoid  policy  unless  known  to  be  false. 

Cited  in  notes  (6  Eng.  Rul.  Gas.  833)  on  avoidance  of  insurance  contract  for 
false  representation  of  material  fact;  (13  Eng.  Rul.  Cas.  546)  on  effect  of  war- 
ranties by  insured. 


43  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  216 

Imputing  agent's  knowledge  to  principal. 

Annotation  cited  in  Collins  v.  Metropolitan  L.  Ins.  Co.  32  Mont.  343,  108  Am. 
St.  Rep.  578,  80  Pac.  609,  on  knowledge  of  agent  as  not  imputable  to  principal 
where  person  dealing  with  agent  knows  he  is  acting  beyond  the  scope  of  his 
authority. 

Cited  in  footnotes  to  Follett  v.  United  States  Mut.  Acci.  Asso.  15  L.  R.  A. 
668,  which  holds  knowledge  by  agent  of  applicant's  deafness  imputed  to  company 
so  as  to  prevent  forfeiture;  Wheeler  v.  McGuire,  2  L.  R.  A.  809,  which  holds 
knowledge  of  agent  must  have  been  acquired  after  relation  formed;  Birmingham 
Trust  &  Sav.  Co.  v.  Louisiana  Nat.  Bank,  20  L.  R.  A.  600,  which  holds  corpo- 
ration chargeable  with  notice  of  fact  known  to  agent  in  prior  transaction  within 
scope  of  authority. 

Cited  in  notes  (2  L.  R.  A.  735)   on  knowledge  of  agent  is  knowledge  of  princi- 
pal ;    ( 1  L.  R.  A.  563 )   on  imputing  agent's  knowledge  to  principal. 
Waiver. 

Cited  in  notes  (1  L.  R.  A.  222)  on  waiver  of  terms  and  conditions  of  insurance 
policy;  (10  L.R.A.  828)  on  construction  of  building  contract  as  to  waiver; 
(9  Am.  St.  Rep.  234)  on  waivers  by  insurance  agents;  (107  Am.  St.  Rep.  102) 
on  waiver  of  provisions  of  non-waiver  or  written  waiver  of  conditions  and  for- 
feitures in  policies. 

Authority    of    agent    in    absence    of    provision    for    indorsing:    waiver    on 
policy. 

Cited  in  Merchants'  Ins.  Co.  v.  New  Mexico  Lumber  Co.  10  Colo.  App.  238,  51 
Pac.  174,  holding  local  agent  without  power  to  waive  forfeiture  or  breach  of 
warranty  after  loss;  Traders  Ins.  Co.  v.  Cassell,  24  Ind.  App.  244,  56  N.  E. 
259,  holding  authority  for  agent  to  issue  policy  not  authorize  adjustment  of 
loss;  Barry  &  F.  Lumber  Co.  v.  Citizens'  Ins.  Co.  136  Mich.  48,  98  N.  W.  761, 
holding  the  statements  and  acts  of  a  local  agent  were  not  receivable  to  show 
his  authority  to  waive  provisions  of  the  policy  relating  to  commencement  of 
actions. 

Cited  in  footnotes  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds 
reformation  of  policy  misdescribing  location  of  property  unnecessary  when  mis- 
take that  of  agent;  Wainer  v.  Milford  Mut.  F.  Ins.  Co.  11  L.  R,  A.  599,  which 
holds  provision  for  referring  amount  of  loss  waived  by  absolute  denial  of  lia- 
bility; Richard  v.  Springfield  F.  &  M.  Ins.  Co.  69  L.R.A.  278,  which  holds  that 
insurance  agent  having  power  to  issue  and  renew  policies  and  grant  permits 
or  privileges  has  apparent  power  to  waive  prior  to  loss  breach  of  iron  safe  clause. 
—  To  waive  proofs  of  loss. 

Cited  in  Ruthven  Bros.  v.  American  F.  Ins.  Co.  92  Iowa,  323,  60  N.  W.  663, 
and  Ermentrout  v.  Girard  F.  &  M.  Ins.  Co.  63  Minn.  310,  30  L.  R.  A.  349,  56 
Am.  St.  Rep.  485,  65  N.  W.  635,  holding  agent  for  issuing  and  countersigning 
policies  and  collecting  premiums  could  not  waive  notice  of  loss;  McCollum  v. 
North  British  &  M.  Ins.  Co.  65  Mo.  App.  309,  holding  statements  of  agent  with- 
out authority  to  settle  loss,  and  made  subsequent  thereto,  not  admissible  as 
evidence  of  waiver  of  proofs;  McCollum  v.  Liverpool,  L.  &  G.  Ins.  Co.  67  Mo. 
App.  70,  raising,  without  deciding,  question  whether  agent  to  solicit,  issue,  and 
cancel  policies  could  waive  proofs  of  loss;  McCollum  v.  Liverpool,  L.  &  G.  Ins. 
Co.  67  Mo.  App.  69,  holding  adjuster  could  waive  proof  of  loss;  Travelers'  Ins. 
Co.  v.  Myers,  62  Ohio  St.  541,  49  L.  R.  A.  764,  57  N.  E.  458,  holding  unauthorized 
agent  could  not  waive  written  notice  of  accident  and  information  relating 
thereto. 


1  L.R.A.  216]  L.  R.  A.  CASES  AS  AUTHORITIES.  44 

Cited  in  footnote  to  Steele  v.  German  Ins.  Co.  18  L.  R.  A.  85,  which  holds  pol- 
icy not  avoided  by  failure  to  furnish  proof  of  loss  within  time  specified. 

Cited  in  notes  (7  L.  R.  A.  81';  8  L.  R.  A.  77)  upon  waiver  of  proofs  of  loss; 
<8  L.  R.  A.  76)  upon  waiver  of  notice  and  statement  of  loss  in  fire  insurance. 

Disapproved  in  Nickell  v.  Phoenix  Ins.  Co.  144  Mo.  425,  46  S.  W.  435,  holding 
local  agent  could  waive  proof  of  loss  and  estop  company. 
Authority  of  other  than   insurance   agent. 

Cited  in  Frost  v.  North  British  &  M.  Ins.  Co.  77  Vt.  412,  60  Atl.  803,  on  the 
powers  of  an  agent  as  being  prima  facie  co-extensive  with  the  business  intrusted 
to  his  care. 

Cited  in  footnote  to  Fay  v.  Slaughter,  56  L.  R.  A.  564,  which  holds  authority 
to  indorse  checks  for  deposit  not  authority  to  ratify  checks  with  forged  transfers 
on  them. 
Effect  of  requiring;  -waiver  to  he  indorsed  on  policy. 

Cited  in  Parker  v.  Rochester  German  Ins.  Co.  162  Mass.  482,  39  N.  E.  179, 
holding  agent  with  limited  powers  could  not  orally  consent  to  removal  of  prop- 
erty insured;  Liverpool,  L.  &  G.  ins.  Co.  v.  T.  M.  Richardson  Lumber  Co.  11 
Okla.  611,  69  Pac.  938,  denying  validity  of  waiver  not  shown  to  have  been  made 
by  agent  with  express  authority;  Egan  v.  Westchester  Ins.  Co.  28  Or.  296,  42 
Pac.  611,  denying  general  agent's  power  to  orally  consent  to  chattel  mortgage. 
Authority  to  waive  proofs  of  loss. 

Cited  in  Ruthven  Bros.  v.  American  F.  Ins.  Co.  92  Iowa,  327,  60  N.  W.  663, 
holding  that  adjuster  could  not  orally  waive  proof  of  loss;  St.  Paul  F.  &  M.  Ins. 
Co.  v.  Mountain  Park  Stock  Farm  Co.  23  Okla.  82,  99  Pac.  647,  holding  a 
condition  of  policy  requiring  proof  of  loss  to  be  made  within  a  specific  time  is 
waived  where  notice  of  the  loss  being  given  the  adjuster  acting  on  instructions 
from  general  agent  agrees  on  the  amount  of  loss. 

Distinguished  in  Powers  v.  New  England  F.  Ins.  Co.  68  Vt.  395,  35  Atl.  331, 
holding  promise  by  company  to  send  adjuster,  waiver  of  requirement  of  proof  of 
loss;  Washburn-Halligan  Coffee  Co.  v.  Merchants'  Brick  Mut.  F.  Ins.  Co.  110 
Iowa,  426,  80  Am.  St.  Rep.  311,  81  N.  W.  707,  holding  secretary  of  insurance 
company  authorized  to  waive  proof  of  loss  without  indorsement. 

Disapproved  in  Nickell  v.  Phoenix  Ins.  Co.  144  Mo.  425,  46  S.  W.  435,  where 
the  statement  is  made  that  by  almost  universally  recognized  doctrine  the  con- 
dition may  be  waived  orally. 
Authority   to   waive   condition   as   to    other   insurance. 

Cited  in  Northern  Assur.  Co.  v.  Grand  View  Bldg.  Asso.  183  U.  S.  323,  46  L. 
«d.  220,  22  Sup.  Ct.  Rep.  133,  Reversing  41  C.  C.  A.  214,  101  Fed.  84,  holding 
acceptance  of  premium  did  not  waive  condition  for  written  assent  to  additional 
insurance,  unknown  to  company  though  known  to  agent  upon  delivery  of  policy; 
O'Leary  v.  Merchants'  &  B.  Mut.  Ins.  Co.  100  Iowa,  176,  62  Am.  St.  Rep.  555, 
€6  N.  W.  175,  holding  consent  to  additional  insurance  not  waived  by  written 
•consent  of  secretary  by  letter,  without  indorsement  on  policy. 

Criticized  in  Burnham  v.  Greenwich  Ins.  Co.  63  Mo.  App.  90,  holding  assent  to 
further  insurance  might  be  waived  orally,  notwithstanding  condition  of  policy. 
Validity  of  stipulations  in  policy. 

Cited  in  Atlas  Reduction  Co.  v.  New  Zealand  Ins.  Co.  9  L.R.A.(N.S-)  435,  71 
C.  C.  A.  21,  138  Fed.  500,  on  stipulations  in  policy  as  to  conditions  on  which 
contract  may  be  terminated  as  not  being  open  to  question. 


45  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  222 

1  L.  R.  A.  222,  LAMBERTON  v.  CONNECTICUT  F.  INS.  CO.  39  Minn.   129, 

39  N.  W.  76. 

Provision   in   policy  against  waiver  by   officer  or   representative  -without 
indorsement. 

Cited  in  Burdick  v.  Security  Life  Asso.  77  Mo.  App.  635,  holding  general 
manager  with  secret  limitation  on  authority  could  waive  breach  of  warranties 
in  application;  Harrison  v.  Russell,  12  Idaho,  633,  87  Pac.  784,  holding  that 
company  cannot  be  prevented  from  waiving  provision  that  no  promises,  whether 
of  agent,  employee,  or  attorney,  shall  be  binding,  unless  made  in  writing;  Andrus 
v.  Maryland  Casualty  Co.  91  Minn.  363,  98  N.  W.  200,  holding  provisions  de- 
signed to  disable  agents  to  receive  notice  of  material  facts  when  issuing  policy 
void;  London  Guarantee  &  Acci.  Co.  v.  Mississippi  C.  R.  Co.  97  Miss.  177,  52  So. 
787,  holding  that  stipulation  in  policy  that  its  terms  cannot  be  waived  by  parol 
by  any  agent  or  officer  is  ineffectual. 

Cited  in  footnote  to  Richard  v.  Springfield  F.  &  M.  Ins.  Co.  69  L.R.A.  278, 
which  holds  that  insurance  agent  having  power  to  issue  and  renew  policies  and 
grant  permits  or  privileges  has  apparent  power  to  waive  prior  to  loss  breach 
of  iron  safe  clause. 

Cited  in  notes  (8  L.R.A.  73)  upon  acts  of  agent  binding  insurance  company; 
(10  L.R.A.  (N.S.)  1075,  1088)  on  oral  waiver  or  estoppel  as  to  forfeitures  after 
issuance  of  policy  and  before  loss,  under  policies  requiring  written  consent  or 
waiver;  (9  Am.  St.  Rep.  235,  236)  on  waivers  by  insurance  agents;  (17  Am. 
St.  Rep.  248)  on  waiver  of  conditions  in  insurance  policies;  (107  Am.  St.  Rep. 
101,  102)  on  waiver  of  provisions  of  non-waiver  or  written  waiver  of  conditions 
and  forfeitures  in  policies. 
As  to  increase  of  risk  and  excepted  articles. 

Cited  in  Mackintosh  v.  Agricultural  F.  Ins.  Co.  150  Cal.  448,  119  Am.  St.  Rep. 
234,  89  Pac.  102,  holding  general  agent  could  orally  waive  provision  in  fire 
insurance  policy  as  to  increase  of  hazard;  German  American  Ins.  Co.  v.  Hyman, 
42  Colo.  168,  16  L.R.A. (N.S.)  82,  94  Pac.  27,  holding  same  as  to  provision  as 
to  use  of  gasoline  on  premises. 
—  As  to  proofs  of  loss. 

Cited  in  Renier  v.  Dwelling  House  Ins.  Co.  74  Wis.  98,  42  N.  W.  208,  holding 
general  agent  could  orally  waive  proofs  of  loss;  Ruthven  Bros.  v.  American  F.  Ins. 
Co.  102  Iowa,  558,  71  N.  W.  574,  holding  adjuster  might  orally  waive  proofs  of 
loss:  Phenix  Ins.  Co.  v.  Munger,  49  Kan.  195,  33  Am.  St.  Rep.  360,  30  Pac.  120, 
holding  condition  in  policy  forbidding  changes  by  agents,  except  upon  written 
authority,  too  sweeping. 
As  to  other  insurance. 

Cited  in  Anderson  v.  Manchester  F.  Assur.  Co.  59  Minn.  195,  28  L.  R.  A.  612, 
50  Am.  St.  Rep.  400,  63  N.  W.  241,  Reversing  on  rehearing  59  Minn.  188,  28 
L.  R.  A.  609,  60  N.  W.  1095.  holding  delivery  of  policy  with  knowledge  of  other 
insurance  waiver  of  provision  avoiding  policy  unless  consent  indorsed  thereon; 
McElroy  v.  British  American  Assur.  Co.  36  C.  C.  A.  623,  94  Fed.  998,  holding 
knowledge  of  solicitor  procuring  insurance  of  intention  of  applicant  to  effect 
other  insurance  estopped  company;  Kahn  v.  Traders  Ins.  Co.  4  Wyo.  464,  62  Am. 
St.  Rep.  47,  34  Pac.  1059,  holding  local  agent's  oral  consent  to  additional  insur- 
ance on  delivering  policy  estopped  company;  Burnham  v.  Greenwich  Ins.  Co.  63 
Mo.  App.  88,  Reaffirming  on  second  appeal  56  Mo.  App.  590,  holding  local  agent 
could  orally  waive  condition  as  to  further  insurance;  Eagle  Fire  Co.  v.  Lewallen, 
56  Fla.  254,  47  So.  947,  holding  local  agent  could  waive  condition  against  other 
insurance  by  promising  to  endorse  the  consent  of  the  oompany  on  the  policy. 


1  L.R.A.  222]  L.  E.  A.  CASES  AS  AUTHORITIES.  46 

As   to   ownership,   alienation,   and   encumbrances. 

Cited  in  Home  Ins.  Co.  v.  Gibson,  72  Miss.  G4,  17  So.  13,  holding  local  agent 
could  waive  sole  ownership  of  property;  St.  Paul  F.  &  M.  Ins.  Co.  v.  Parsons, 
47  Minn.  356,  50  N.  W.  240,  holding  agent  could  orally  waive  transfer  of  title 
and  sale  on  mortgage  foreclosure;  German  Ins.  Co.  v.  Gray,  43  Kan.  506,  8  L. 
R.  A.  77,  19  Am.  St.  Rep.  150,  23  Pac.  637,  holding  general  agent  could  orally 
waive  provision  respecting  encumbrances;  McElroy  v.  British  America  Assur.  Co. 
36  C.  C.  A.  623,  94  Fed.  998,  holding  knowledge  by  agent  of  encumbrance  by 
applicant  estopped  company;  Bosworth  v.  Merchants'  F.  Ins.  Co.  80  Wis.  396, 
49  N.  W.  750,  holding  oral  consent  by  agent  procuring  insurance,  to  additional 
encumbrance,  a  waiver  of  condition;  Allen  v.  Phoenix  Assur.  Co.  14  Idaho,  742, 
95  Pac.  829,  holding  provisions  as  to  ownership  in  fee  and  in  regard  to  incum- 
brances  may  be  orally  waived  by  solicitor  of  insurance. 
As  to  premiums. 

Cited  in  Wilkins  v.  State  Ins.  Co.  43  Minn.  178,  45  N.  W.  1,  holding  waiver  by 
local  agent  of  immediate  payment  of  premium  not  prevented  by  condition  against 
waiver  without  indorsement  on  policy;  Farnum  v.  Phoenix  Ins.  Co.  83  Cal.  261, 
17  Am.  St.  Rep.  233,  23  Pac.  869,  holding  immediate  payment  of  premium  might  be 
waived  by  agent  empowered  to  issue  policy;  German  Ins.  Co.  v.  Shader,  68  Xeb.  5, 

60  L.R.A.  920,  93  N.  W.  972,  holding  condition  in  policy  as  to  payment  of  pre- 
mium waived  by  extension  of  time  by  agent,  company  treating  policy  as  in  force; 
JEtna  L.  Ins.  Co.  v.  Fallow,  110  Tenn.  736,  77  S.  W.  937,  holding  general  agent 
could   orally    waive   provision   in   accident   policy    as   to    payment    of    premium; 
Penn  Mut.  L.  Ins.  Co.  v.  Xorcross,  163  Ind.  387,  72  N.  E.  132,  holding  life  in- 
surance agent  whose  authority  to  bind  corporation  was  presumed  from  the  plead- 
ings empowered  to  waive  requirement  of  prepayment  of  first  premium;   Leland 
v.  Samaritans,  111  Minn.  213,  126  X.  W.  728,  holding  that  subordinate  council  of 
fraternal    benefit    society    can    waive    strict    compliance    with    by-law    requiring 
prompt  payment  of  dues;  Collins  v.  Metropolitan  L.  Ins.  Co.  32  Mont.  343,  108 
Am.   St.   Rep.    578,    80   Pac.    609,   holding    that    local    agent    cannot    waive    for- 
feiture of  policy  for  nonpayment  of  premium. 

Waiver  of  conditions  in  other  than  insurance  contracts. 

Cited  in  Nichols  &  S.  Co.  v.  \Yiedemann,  72  Minn.  347,  75  N.  W.  208,  and 
Baker  v.  Nichols  &  S.  Co.  10  Okla.  691,  65  Pac.  100,  holding  provision  in  con- 
tract of  sale  against  any  agent  changing  warranty  cannot  prevent  waiver  of 
requirement  for  written  notice  of  breach;  Massachusetts  Loan  &  T.  Co.  v.  Welch, 
47  Minn.  186,  49  N.  W.  740,  holding  company  might  waive  conditions  in  contract 
of  sale  as  to  time  for  returning  on  breach  of  warranty;  Michaud  v.  MacGregor, 

61  Minn.  203,  63  N.  W.  479,  authorizing  recovery  for  additional  work  without 
order  from  architect,  although  original  contract  provided  otherwise. 

Life   insurance. 

Cited  in  note    (10  L.  R.  A.   669)    on  representations  in  application  for  life 
insurance. 
Sufficiency  of  agent's  acts  to  waive  forfeiture. 

Cited  in  Farmers'  Mut.  F.  Ins.  Co.  v.  Jackman,  35  Ind.  App.  17,  73  N.  E. 
730,  holding  slight  acts  sufficient  where  condition  is  in  favor  of  company. 

1   L.  R.  A.  224,  BARBER  v.  BEXXETT,   60  Vt.  662,  6  Am.   St.   Rep.   141,   15 

Atl.  348. 
Admissions   of   real   party. 

Cited  in  Brown  v.  Brown.  62  Kan.  673,  64  Pac.  599,  holding  admissions  of  real 
party  in  interest  admissible  against  nominal  party;  Binewicz  v.  Haglin,  103 


47  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  229 

Minn.   299,   15   L.R.A.(N.S.)    1098,   115   N.  W.  271,   14  A.  A  E.  Ann.  Gas.  225, 
on  the  admissibility  of  admissions  against  interest. 

1  L.  R.  A.  225,  COM.  ex  rel.  ATTY.  GEN.  v.  SUSQUEHANNA  &  D.  RIVER  R. 

CO.  122  Pa.  306,  15  Atl.  448. 
Remedies  on   default  In  corporate  mortgage  bonds. 

Cited  in  Ritter  v.  Conshohocken  R.  Co.  18  Montg.  Co.  L.  Rep.  621,  and  Western 
Pennsylvania  Hospital  v.  Mercantile  Library  Hall  Co.  189  Pa.  272,  43  W.  N.  C. 
341,  42  Atl.  183,  denying  right  of  individual  bondholder  to  execution  against 
specific  property  mortgaged  to  trustee  for  all  bondholders;  Woodbury  v.  Allegheny 
&  K.  R.  Co.  72  Fed.  374,  holding  bondholder's  "action  in  Pennsylvania,  where 
trustee  refused  to  sue  because  of  New  York  injunction;  Roberts  v.  Denver,  L.  & 
G.  R.  Co.  8  Colo.  App.  513,  46  Pac.  880,  holding  bondholders  must  proceed  through 
trustee  only,  and  adopt  remedies  security  provides;  Guilford  v.  Minneapolis, 
S.  Ste.  M.  &  A.  R.  Co.  48  Minn.  575,  31  Am.  St.  Rep.  694,  51  N.  W.  658,  holding 
general  recital  in  bond  insufficient  notice  of  qualifying  conditions  of  trust  deed; 
Guest  v.  Lower  Merion  Water  Co.  142  Pa.  613,  28  W.  N.  C.  285,  12  L.  R.  A.  324, 
21  Atl.  1001,  holding  return  of  nulla  bona  condition  precedent  to  issuance  of 
sequestration  writ  for  corporate  property;  Ritter  v.  Conshohocken  R.  Co.  11  Pa. 
Dist.  R.  704,  holding  holder  of  part  of  an  issue  of  railroad  bonds  secured  by  a 
mortgage  to  a  trustee  for  all  bondholders  cannot  proceed  against  the  mortgaged 
property  except  through  a  trustee;  Ault  &  W.  Co.  v.  Republic  Bank  Xote  Co. 
58  Pittsb.  L.  J.  178,  holding  that  provision  in  mortgage  that  bondholder  cannot 
foreclose  without  request  of  majority  of  bondholders  upon  trustee  does  not  de- 
prive individual  bondholder  of  his  common-law  action  on  his  bond;  Baker  v. 
Consumers'  Box  Board  &  Paper  Co.  20  Pa.  Dist.  R.  901,  28  Lane.  L.  Rev.  175, 
holding  that  individual  bondholder  can  enforce  his  bond,  though  mortgage 
provides  for  action  by  trustee;  Baker  v.  Consumers'  Box  Board  &  Paper  Co. 
28  Lane.  L.  Rev.  297,  holding  that  individual  bondholder  can  take  in  execution 
property  not  covered  by  the  mortgage. 
Action  on  bonds  \\  ln-n  interest  is  in  default. 

Distinguished  in  Stephenson  v.  Dodson,  15  Pa.  Dist.  R.  773,  10  North  Co.  Rep. 
202,  holding  action  predicated  on  obligation  of  bonds  could  not  be  sustained  on 
default  of  interest  coupons. 
Title  of  trustees  in  corporate  mortgage. 

Cited  in  Re  Keystone  Coal  Co.  225  Pa.  245,  74  Atl.  64,  holding  trustee  in 
corporate  mortgage  is  the  mere  repository  of  title  in  trust  for  the  creditors 
secured. 

Cited   in   note    (16  L.R.A.  (N.S. )    1014)    on   representation   of  bondholders   by 
mortgage  trustee. 
I.  i«-iiii  Me   corporate  property. 

Cited  in  Vulcanite  Paving  Co.  v.  Philadelphia  Rapid  Transit  Co.  220  Pa.  606, 
17  L.R.A.(X.S.)  885,  69  Atl.  1117,  holding  the  power  house  of  an  electric  street 
railway  is  not  subject  to  a  mechanic's  lien. 

1  L.  R.  A.  229,  HOFFMAN  v.  HOKE,  122  Pa.  377,  15  Atl.  437. 
Assignment  or  gift  of  insnrance. 

Cited  in  Kessler  v.  Kuhns,  1  Ind.  App.  517,  27  N.  E.  980,  holding  assignment 
by  beneficiary  with  insurable  interest,  to  creditors  without  such  interest,  void; 
Quinn  v.  Supreme  Council,  C.  K.  of  A.  09  Tenn.  84,  41  S.  W.  343,  holding  policy 
bought  and  kept  up  by  assignee  without  interest,  void;  Doherty's  Estate,  14  Pa. 
Dist.  R.  80,  holding  an  assignment  of  a  policy  of  life  insurance  by  one  indebted 


1  L.R.A.  229]  L.  R.  A.  CASES  AS  AUTHORITIES.  48 

to  the  assignee  upon  the  further-consideration  that  the  assignee  pay  the  funeral 
expenses  will  be  sustained;  Bendet  v.  Ellis,  120  Tenn.  290,  18  L.R.A.(N.S.)  118, 
127  Am.  St.  Rep.  1000,  111  S.  W.  795,  holding  the  assignee  of  a  life  insurance 
policy  taken  out  under  agreement  for  its  assignment  to  one  having  no  insurable 
interest  might  be  compelled  to  pay  to  the  estate  the  amount  of  the  policy  less 
what  the  policy  cost  him;  Bloomstein  v.  Bloomstein,  1  Tenn.  Ch.  App.  194,  hold- 
ing the  widow  of  an  insured  could  not  recover  the  proceeds  of  a  policy  paid  to 
a  niece  of  insured  who  paid  the  premiums. 

Cited  in  footnote  to  Opitz  v.  Karel,  62  L.  R.  A.  982,  holding  that  insured  may 
make  valid  gift  of  proceeds  of  insurance  by  delivery  of  policy,  although  policy 
required  written  assignment. 

Cited  in  notes  (3  L.R.A.  (N.S.)  950)  on  validity  of  assignment  of  interest  in 
life  insurance  to  one  paying  premiums;  (6  L.R.A. (N.S.)  129)  on  validity  of 
assignment  not  made  as  cover  for  wager  policy  of  life  insurance  to  one  having 
no  insurable  interest;  (16  Am.  St.  Rep.  907)  on  validity  of  assignment  of  policy 
to  one  having  no  insurable  interest. 

Disapproved  in  effect  in  Farmers'  &  T.  Bank  v.  Johnson,  118  Iowa,  285,  91 
N.  W.  1074,  holding  policy  assignable  to  one  without  insurable  interest. 

1  L.  R.  A.  230,  HARRISBURG  &  E.  R.  CO.'S  APPEAL,  1  Monaghan  (Pa.)   692, 

15  Atl.  459. 
Joinder  of  parties. 

Cited  in  Delaware  River  Quarry  &  Constr.  Co.  v.  Bethlehem  &  N.  Street  R.  Co. 
7  Northampton  Co.  Rep.  197,  raising,  but  not  deciding,  question  whether  trustee 
in  mortgage  and  bondholders  should  be  joined  in  action  on  contract  against  rail- 
road companies. 

1  L.  R.  A.  232,  DELAWARE  &  H.  CANAL  CO.  v.  COM.  1  Monaghan   (Pa.)   36, 

2  Inters.  Com.  Rep.  222,  17  Atl.  175. 
Tax  on    iii'oss   receipts. 

Cited  in  Northern  P.  R.  Co.  v.  Barnes,  2  N.  D.  379,  51  N.  W.  386  (dissenting 
opinion),  majority  upholding  constitutionality  of  per  centum  tax  on  gross 
earnings. 

Cited  in  footnotes  to  Vermont  &  C.  R.  Co.  v.  Vermont  C.  R.  Co.  10  L.  R.  A. 
562,  which  holds  taxes  on  gross  earnings,  taxes  upon  property  within  rule  re- 
quiring lessor  to  pay  such  taxes;  Cumberland  &  P.  R.  Co.  v.  State,  52  L.  R.  A. 
764,  which  holds  tax  on  gross  receipts  of  railroad  corresponding  to  proportion  of 
mileage  in  state  valid;  Northern  P.  R.  Co.  v.  Raymond,  1  L.  R.  A.  732,  which 
holds  unconstitutional  per  centum  tax  on  earnings  from  interstate  commerce. 

Cited   in   notes    (1   L.   R.   A.   244)    on   taxation   of   franchise   of   corporation; 
(17  L.  R.  A.  443)   on  whether  shipments  between  points  in  the  same  state  lose 
their  character  as  domestic  commerce  by  passing  out  of  the  state  during  trans- 
portation. 
Tax  on  interstate  commerce. 

Followed  in  Lehigh  Valley  R.  Co.  v.  Com.  1  Monaghan  (Pa.)  46,  17  Atl.  179. 
holding  state  cannot  tax  receipts  for  transportation  between  points  within  and 
points  without  state. 

Cited  in  Com.  v.  Westinghouse  Electric  &  Mfg.  Co.  151  Pa.  271,  24  Atl.  1107, 
and  Com.  v.  United  Gas  Improv.  Co.  7  Pa.  Co.  Ct.  117,  holding  capital  stock  of 
corporation  invested  in  patent  rights  not  taxable. 

Cited  in  footnotes  to  Northern  P.  R.  Co.  v.  Raymond,  1  L.  R.  A.  732,  and 
Vermont  &  C.  R.  Co.  v.  Vermont  Central  R.  Co.  10  L.  R.  A.  562,  which  hold  act 
taxing  interstate  commerce  unconstitutional. 


49  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  237 

Cited  in  notes  (17  L.  R.  A.  643)  on  shipments  within  a  state  as  part  of 
interstate  or  foreign  transportation;  (57  L.  R.  A.  60,  63,  67)  on  taxation  of  cor- 
porate receipts,  income,  etc.,  in  the  United  States;  (51  L.  ed.  U.  S.  541)  on  local 
transportation  of  goods  as  part  of  interstate  or  foreign  shipment. 

1  L.  R.  A.  237,  COM.  v.  AMERICAN  DREDGING  CO.  122  Pa.  386,  2  Inters.  Com. 

Rep.  221,  9  Am.  St.  Rep.  116,  15  Atl.  443. 
T:i  \ai)  !«•  situs  of  personal  property. 

Cited  in  Com.  v.  Westinghouse  Eleclric  &  Mfg.  Co.  151  Pa.  267,  24  Atl.  1107, 
holding  capital  stock  in  manufacturing  plants  in  other  states  untaxable;  Com. 
v.  Delaware,  L.  &  W.  R.  Co.  206  Pa.  649,  56  Atl.  69,  Affirming  4  Dauphin  Co.  Rep. 
147;  Com.  v.  Pennsylvania  Coal  Co.  4  Dauphin  Co.  Rep.  130;  Com.  v.  Pennsyl- 
vania Coal  Co.  197  Pa.  554,  47  Atl.  740,  Affirming  9  Pa.  Dist.  R.  487,  3  Dauphin 
Co.  Rep.  145,  holding  mining  corporation  taxable  for  its  coal  shipped  to  and 
stored  in  other  states  for  sale;  Com.  v.  Thomas  Iron  Co.  12  Pa.  Co.  Ct.  659^ 
holding  mines  in  other  state,  of  coal  mining  company,  exempt  from  taxation; 
State  ex  rel.  Dwinnell  v.  Gaylord,  73  Wis.  325,  41  N.  W.  521,  holding  debt  taxable 
to  creditor  at  his  residence. 

Cited  in  footnotes  to  Myers  v.  Baltimore  County,  34  L.  R.  A.  309,  which  hold? 
live  stock  taxable,  though  intended  for  export;  Atlantic  &  P.  R.  Co.  v.  Lesueur, 
1  L.  R.  A.  246,  which  holds  situs  of  rolling  stock  for  taxation  is  where  habitually 
used;  Grigsby  Constr.  Co.  v.  Freeman,  58  L.  R.  A.  349,  which  holds  blacksmith 
tools  and  commissary  store  goods  used  by  corporation  in  its  work,  taxable. 

Cited  in  notes  (69  L.R.A.  443,  444,  448)  on  situs,  for  taxing  purposes,  of 
tangible  personalty  of  domestic  corporations;  (36  L.R.A.  (N.S.)  296,  298)  on 
personal  property  having  taxation  situs  elsewhere,  as  subject  of  taxation  in  state 
of  owner's  domicil;  (62  Am.  St.  Rep.  449,  473)  on  situs  of  personal  property  for 
purposes  of  taxation. 

Distinguished  in  Delaware,  L.  &  W.  R.  Co.  v.  Pennsylvania,  198  U.  S.  356,  49 
L.  ed.  1083,  25  Sup.  Ct.  Rep.  669,  holding  in  assessing  the  value  of  the  capital 
stock  of  a  corporation  coal  owned  by  the  corporation  at  the  time  of  the  assess- 
ment, situated  in  another  state  and  not  to  be  returned  to  state  should  not  be 
included;  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  208,  50  L.  ed. 
155,  26  Sup.  Ct.  Rep.  36,  4  A.  &  E.  Ann.  Cas.  493,  holding  cars  owned  by  a  transit 
refrigerating  company  and  permanently  employed  without  the  state  was  not 
taxable  in  state. 
—  Vessels. 

Cited  in  Olson  v.  San  Francisco,  148  Cal.  84,  2  L.R.A.(N.S.)  200.  113  Am. 
St.  Rep.  191,  82  Pac.  850,  7  A.  &  E.  Ann.  Caa.  443,  holding  a  sea  going  vessel 
engaged  in  a  foreign  trade  and  temporarily  registered  in  another  state  is  deemed 
to  be  taxable  in  state  where  owners  reside  although  she  has  never  been  in  the 
waters  of  the  home  port;  North  American  Dredging  Co.  v.  Taylor,  56  Wash.  568, 
29  L.R.A.(N.S.)  105,  106  Pac.  162,  holding  a  steam  dredge  was  taxable  at  the 
port  at  which  built  and  at  which  owner  lived  although  registered  as  of  another 
port. 

Cited  in  notes  (37  L.  R.  A.  519)  on  where  ships  are  taxable;  (60  L.  R.  A.  655) 
on  corporate  taxation  and  the  commerce  clause. 

Distinguished  in  Com.  v.  Delaware,  L.  &  W.  R.  Co.  145  Pa.  104,  28  W.  N.  C. 
325,  22  Atl.  157,  holding  domestic  corporation  not  taxable  for  boats  built,  regis- 
tered, and  used  wholly  outside  state. 
L.R.A.  Au.  Vol.  I.— 4. 


1  L.R.A.  238]  L.  R.  A.  CASES  AS  AUTHORITIES.  50 

1  L.  R.  A.  238,  UNITED  BRETHREN  MUT.  AID  SOC.  v.  McDOXALD,  122  Pa. 

324,  9  Am.  St.  Rep.   Ill,   15  Atl.  439. 
Insnrable   interest. 

Cited  in  Prudential  Ins.  Co.  v.  Hunn,  21  Ind.  App.  530,  69  Am.  St.  Rep.  380, 
52  N.  E.  772,  holding  mother  who  contracts  for  insurance  on  life  of  son  must 
allege  insurable  interest  in  action  on  policy;  Brady  v.  Prudential  L.  Ins.  Co.  5 
Kulp,  505,  holding  cousin  of  insured  without  insurable  interest;  McDermott  v. 
Prudential  Ins.  Co.  7  Kulp,  249,  holding  policy  issued  to  one  without  insurable 
interest  not  enforceable,  although  valid  where  made;  Hess  v.  Segenfelter,  127 
Ky.  356,  14  L.R.A.(N.S.)  1176,  128  Am.  St.  Rep.  343,  105  S.  W.  473,  holding 
first  cousins,  not  creditors  of  the  insured,  have  no  insurable  interest  in  his  life; 
Woods  v.  Woods  (Woods  v.  Riner)  130  Ky.  168,  19  L.R.A.(N.S.)  235,  113  S.  W. 
79,  holding  a  son  had  an  insurable  interest  in  the  life  of  his  mother. 

Cited  in  footnotes  to  Adams  v.  Reed,  35  L.  R.  A.  692,  which  holds  woman  may 
have  insurable  interest  in  her  son-in-law's  life;  Mutual  Reserve  Fund  Life  Asso. 
v.  Hurst,  20  L.  R.  A.  761,  which  holds  insurable  interest  immaterial  where  con- 
troversy is  between  claimants  only;  Hurd  v.  Doty,  21  L.  R.  A.  746,  which  holds 
trustee  cannot  refuse  payment  of  proceeds  of  policy  because  beneficiaries  are 
without  insurable  interest. 

Cited  in  notes  (2  L.  R.  A.  844;  6  L.  R.  A.  136,  137)  on  insurable  interest  in 
life  of  another;  (54  L.  R.  A.  228)  on  insurable  interest  in  life  of  parent  or  child 
or  other  relative  by  blood;  (3  L.R.A. (N.S.)  336)  as  to  who  is  a  member  of 
"family"  within  contract  of  benefit  society. 

Distinguished  in  Ingersoll  v.  Knights  of  G.  R.  47  Fed.  274,  holding  mutual 
benefit  policy  authorizing  change  of  beneficiary  valid,  although  beneficiary  had 
no  pecuniary  interest  in  life  of  insured. 
Wagering  policies. 

Cited  in  White  v.  Bradley,  28  Lane.  L.  Rev.  366,  holding  that  assignment  of 
policy  to  person  not  a  relative  or  creditor  of  insured  is  wagering  contract  and 
void. 

Cited  in  note  (13  Eng.  Rul.  Cas.  355)  on  wagering  policies  and  their  validity. 

1  L.  R.  A.  240,  GASSERT  v.  BOGK,  7  Mont.  585,  19  Pac.  281. 
Statement   on   appeal. 

Cited  in  Kimpton  v.  Jubilee  Placer  Min.  Co.  22  Mont.  108,  55  Pac.  918,  raising, 
without  deciding,   question   as   to  striking   out   statement  on  appeal   filed  after 
repeal  of  statute  providing  therefor. 
Jurisdiction  of  district  court  on  appeal. 

Cited  in  Anderson  v.  Red  Metal  Min.  Co.  36  Mont.  318,  93  Pac.  44,  on  the  ju- 
risdiction of  district  court  on  appeal. 
Construction   of    deed    n-    mortgage. 

Cited  in  Kleinschmidt  v.  Kleinschmidt,  9  Mont.  489,  490,  24  Pac.  266,  holding 
deed  absolute,  with  bond  to  reconvey,  not  a  mortgage  unless  evidence  shows  it 
was  intended  as  such;  Jasper  v.  Hazen,  4  N.  D.  6.  23  L.  R.  A.  63,  58  N.  W.  454, 
and  Armor  v.  Spalding,  14  Colo.  305,  23  Pac.  789,  holding  proofs  must  be  clear, 
unequivocal,  and  convincing  before  court  of  equity  will  construe  deed  as  mort- 
gage; Devore  v.  Woodruff,  1  N.  D.  149,  45  N.  W.  701,  holding  separate  agreement 
to  reconvey  on  payment  of  specified  sum  not  conclusive  proof  that  deed  intended 
as  mortgage;  Larson  v.  Dutiel,  14  S.  D.  483,  85  N.  W.  1006,  construing  deed  of 
mortgaged  premises  in  satisfaction  of  notes  not  returned  as  absolute  conveyance; 
Sullivan  v.  Woods,  5  Ariz.  200,  50  Pac.  113,  holding  a  mere  preponderance  in 
the  evidence  was  not  sufficient  to  show  a  deed  absolute  on  its  face  a  mort 


51  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  244 

\Vis\vell  v.  Simmons,  77  Kan.  625,  95  Pac.  407,  construing  a  transaction,  where  a 
deed  and  a  bond  to  reconvey  executed  at  the  same  time,  to  be  a  mortgage;  Morri- 
son v.  Jones,  31  Mont.  161,  77  Pac.  507;  Wilson  v.  McWilliams,  16  S.  D.  105,  91 
N.  W.  453, — on  when  absolute  deed  will  be  construed  to  be  a  mortgage;  Goodbar 
&  Co.  v.  Bloom,  43  Tex.  Civ.  App.  443,  96  S.  W.  657,  on  necessity  that  it  appear 
that  parties  to  deed  absolute  on  face  bear  the  relation  of  debtor  and  creditor 
in  order  to  show  such  instrument  to  be  a  mortgage;  Murray  v.  Butte-Monitor 
Tunnel  Min.  Co.  41  Mont.  454,  110  Pac.  497,  holding  transfer  of  stock  a  loan  and 
not  a  sale. 

Cited  in  note  (18  Eng.  Rul.  Cas.  13)  on  test  between  mortgage  and  conditional 
sale. 
Specific  performance. 

Cited  in  footnotes  to  Hodges  v.  Rowing,  7  L.  R.  A.  87,  which  holds  suit  by 
vendor  for  specific  performance  cannot  be  defeated  because  of  remedy  at  law; 
Coffey  v.  Emigh,  10  L.  R.  A.  127,  which  grants  specific  performance  of  contract 
fair,  reasonable,  just,  and  proved  substantially  as  alleged. 

1  L.  R.  A.  244,  ATLANTIC  &  P.  R.  CO.  v.  LESUEUR,  2  Ariz.  428,  2  Inters.  Com, 

Rep.  189,  19  Pac.  157. 
Taxation   of   franchise   as    interference   with   interstate   commerce. 

Cited  in  Northern  P.  R.  Co.  v.  Barnes,  2  N.  D.  351,  51  N.  W.  386,  holding,  in 
absence  of  restriction  by  Congress,  territorial  legislature  may  tax  gross  local  earn- 
ings of  railroad. 

Cited  in  footnotes  to  Northern  P.  R.  Co.  v.  Raymond,  1  L.  R.  A.  732,  which 
holds  tax  on  gross  earnings  of  railroad,  so  far  as  derived  from  interstate  com- 
merce, unconstitutional;  Hall  v.  American  Refrigerator  Transit  Co.  56  L.  R.  A. 
89,  which  holds  tax  on  refrigerator  cars  in  state  on  interstate  business  not  tax 
on  interstate  commerce;  Cumberland  &  P.  R.  Co.  v.  State,  52  L.  R.  A.  764,  which 
holds  tax  on  gross  receipts  of  railroad,  proportionate  to  mileage  within  state, 
•constitutional. 

Cited  in  notes   (1  L.  R.  A.  233)   on  tax  on  gross  receipts  of  railroads;    (57  L. 
H.  A.  93)    on  franchise  tax  on  foreign  corporations  engaged  in  interstate  com- 
merce;   (57  L.  R.  A.  56)    on  taxation  of  railroad  franchise  granted  by  United 
States,  as  interference  with  Federal  agencies  and  burden  on  Federal  grants. 
Taxing   power   limited   only    by   Constitution. 

Cited  in  Detroit  Citizens'  Street  R.  Co.  v.  Detroit,  125  Mich.  703,  84  Am.  St. 
Rep.  589,  85  N.  W.  96,  holding  legislature  may  impose  general  tax  upon  railway 
company  in  lieu  of  specific  tax. 

Cited  in  note    (60  L.  R.  A.  39)    on  corporate  taxation  in  United  States  as 
affected  by  contract  clause  in  Federal  Constitution. 
Corporate  exemption*  from  taxation. 

Followed  in  Territory  v.  Delinquent  Tax  List,  3  Ariz.  121,  21  Pac.  768,  holding 
the  exemption  of  a  right  of  way  from  taxation  does  not  carry  with  it  the  exemp- 
tion of  improvements  attached  thereto. 

Cited  in  Shreveport  Creosoting  Co.  v.  Shreveport,  119  La.  642,  44  So.  325,  on 
exemptions  from  taxation  as  never  being  presumed. 

Cited  in  footnote  to  Springfield  v.  Smith,  37  L.  R.  A.  446,  which  holds  fact 
that  railroad  franchise  contains  no  exemption  from  license  taxes  does  not  pre- 
clude their  imposition. 

Cited  in  notes  (6  L.  R.  A.  155)  on  exemption  from  taxation  not  applying  to 
local  assessments;  (19  L.  R.  A.  81)  on  power  of  state  legislature  to  exempt  from 


1  L.R.A.  244]  L.  R.  A.  CASES  AS  AUTHORITIES.  52 

taxation;   (57  L.  R.  A.  47)  on  property  exempt  as  part  of  franchise;   (60  L.  R.  A. 

77)  on  extent  of  corporate  exemptions  from  taxation. 

Situs  of  movable  personal  property  for  purposes  of  taxation. 

Cited  in  Bessemer  v.  Southern  R.  Co.  157  Ala.  432,  48  So.  103,  holding  that  car 
passing  through  city  has  not  such  a  situs  therein  as  to  be  subject  to  municipal 
taxation. 

Cited  in  footnotes  to  Union  Refrigerator  Transit  Co.  v.  Lynch,  48  L.  R.  A.  790, 
which  holds  state  may  tax  railway  cars  of  foreign  corporation  employed  in  or 
passing  through  state;  Hall  v.  American  Refrigerator  Transit  Co.  56  L.  R.  A.  89, 
which  holds  average  number  of  cars  of  foreign  corporation  transiently  within 
state  taxable  therein ;  Grigsby  Constr.  Co.  v.  Freeman,  58  L.  R.  A.  349,  which 
holds  contractor's  outfit  brought  into  state  to  be  used  on  construction  work, 
taxable. 

Cited  in  note   (69  L.R.A.  437,  446)   on  situs,  for  taxing  purposes,  of  tangible 
personalty  of  domestic  corporations. 
"Right  of  vray"  defined. 

Cited  in  Mercantile  Trust  Co.  v.  Atlantic  &  P.  R.  Co.  63  Fed.  913,  holding  grant 
of  right  of  way  over  public  lands  gives  easement  only. 

Cited  in  note   (66  L.R.A.  38)   on  nature  of  railroad  right  of  way  as  realty  or 
personalty. 
Injunction  to  restrain  collection  of  taxes. 

Cited  in  Greer  v.  Richards,  3  Ariz.  229,  32  Pac.  266,  on  the  maintenance  of  an 
action  to  enjoin  the  collection  of  taxes. 
Definition  of  easement. 

Cited  in  note   (136  Am.  St.  Rep.  682)   on  definition  of  easement. 

1  L.  R.  A.  250,  LOOS  v.  WILKINSON,  110  N.  Y.  195,  18  N.  E.  99. 
Rig-lit   of   assignee   to    assail   prior    transfers. 

Cited  in  Smith  v.  Payne,  24  Jones  &  S.  455,  3  N.  Y.  Supp.  826,  holding  right 
to  assail  judgments  and  executions  as  fraudulent  rests  in  assignee  alone,  while 
assignment  remains  in  force;  Guilford  v.  Mills,  57  Hun,  495,  11  N.  Y.  Supp.  261, 
holding  creditor  of  assignor  cannot  seize  mortgaged  chattels  of  debtor  in  hands 
of  mortgagee,  even  though  mortgage  fraudulent. 

Distinguished  in  Birdsall,  W.  &  P.  Mfg.  Co.  v.  Schwarz,  3  App.  Div.  302,  38 
N.  Y.  Supp.  368,  holding  creditors  may  attack  transfer  of  individual  property 
not  vested  in  assignee  of  partnership;  Cornwell  v.  Baldwin's  Bank,  12  App.  Div. 
232,  43  N.  Y.  Supp.  771,  holding  general  assignee  cannot  insist  on  reduction  oi 
creditor's  claim  by  amount  misappropriated  by  assignor  as  agent  for  such  creditor. 
Necessity  of  setting  aside  assignment  before  attacking  prior  transfers. 

Cited  in  Strickland  v.  Laraway,  29  N.  Y.  S.  R.  877,  9  X.  Y.  Supp.  761,  holding 
creditor,  without  attacking  assignment,  cannot  assail  prior  deed;  National  Hud- 
son River  Bank  v.  Chaskin,  28  App.  Div.  315,  51  N.  Y.  Supp.  64,  holding  that, 
under  valid  assignment,  creditor  cannot  invalidate  prior  bill  of  sale,  though  con- 
ceded to  be  fraud  upon  creditors;  Wheeler  v.  Childs,  22  App.  Div.  614,  48  N.  Y. 
Supp.  1023,  in  which  it  was  conceded  that  individual  creditors  of  insolvent  firm 
could  not  attack  prior  transfers  without  having  assignment  set  aside. 

Distinguished  in  Spelman  v.  Freedman,  130  N.  Y.  427,  29  N.  E.  765,  holding 
general  creditors  authorized  to  sue  to  set  aside  judgment  on  assignee's  refusal. 
Parties   to   action   to   set   aside   frandnlent   transfer. 

Cited  in  Dixon  v.  Coleman,  28  Misc.  66,  59  N.  Y.  Supp.  806,  holding  all  persons- 
claiming  interest  proper  parties  in  creditors'  action  attacking  fraudulent 
transfers;  Hubbard  v.  United  Wireless  Teleg.  Co.  62  Misc.  540,  115  N.  Y.  Supp.. 


53  L.  LI.  A.  CASKS  AS  AlTIItMUTIES.  [1  L.R.A.  250 

1016,  holding  a  judgment  creditor  might  maintain  an  action  to  set  aside  a 
fraudulent  transfer  of  debtor's  property,  although  judgment  debtor  is  unable  to 
do  so;  Witherbee  v.  Bowles,  201  N.  Y.  434,  95  N.  E.  27,  holding  that  stockholders, 
in  action  to  avoid  fraudulent  increase  of  stock,  may  join  as  parties  defendant  all 
persons  who  took  part  therein. 
Transferee's  participation  in  fraud. 

Cited  in  First  Nat.  Bank  v.  Warner,  55  Hun,  125,  8  N.  Y.  Supp.  765,  holding 
evidence  of  assignor's  fraudulent  intent  admissible  against  innocent  assignee; 
Re  Hallheimer,  21  App.  Div.  529,  48  N.  Y.  Supp.  697,  holding  title  to  property 
fraudulently  assigned  remains  in  assignor  as  to  impeaching  creditors,  notwith- 
standing assignee's  good  faith;  Carver  v.  Barker,  73  Hun,  419,  26  N.  Y.  Supp. 
919,  holding  grantee's  knowledge  of  intent  of  debtor  immaterial,  in  case  of 
fraudulent  conveyance  without  consideration;  Illinois  Watch  Co.  v.  Payne,  33 
N.  Y.  S.  R.  970,  11  N.  Y.  Supp.  408,  holding  fraudulent  intent  of  debtor  alone 
will  invalidate  confessed  judgment;  Kennedy  v.  Wood,  52  Hun,  51,  4  N.  Y.  Supp. 
758,  holding  assignee's  intent  not  material,  not  being  a  purchaser  for  value; 
Merchants'  Nat.  Bank  v.  Greenhood,  16  Mont.  457,  41  Pac.  250,  holding  intent  of 
general  assignee  not  material,  as  he  is  not  a  purchaser  for  valuable  consideration ; 
Berger  v.  Varrelmann,  127  N.  Y.  294,  12  L.  R.  A.  814,  27  N.  E.  1065,  holding 
judgment  confessed  in  fraud  of  assignment  should  be  set  aside,  even  though  the 
creditor  did  not  participate  therein ;  Koechl  v.  Leibinger  &  0.  Brewing  Co.  26  App. 
Div.  580,  50  N.  Y.  Supp.  568,  holding  participation  by  assignee  of  corporation  in 
fraud  unnecessary  to  avoid  assignment;  Harting  v.  Rosenfeld,  26  Misc.  176,  56 
N.  Y.  Supp.  753,  holding  general  assignment  without  preference  to  innocent 
assignee  void,  debtor  secreting  property  from  assignee;  Metcalf  v.  Moses,  35  App. 
Div.  606,  55  N.  Y.  Supp.  179,  holding  bona  fide  grantee  of  real  property  as  pay- 
ment or  security  for  debt,  not  affected  by  fraud  of  grantor. 

Cited  in  notes  (9  L.  R.  A.  417)  on  intent  to  hinder,  delay,  or  defraud  creditors; 
(36  L.  R.  A.  345)  on  preference  to  relatives;  (36  L.  R.  A.  360)  on  participation 
of  preferred  creditor  in  debtor's  fraud. 

Distinguished  in  Galle  v.  Tode,  148  N.  Y.  279,  42  N.  E.  673,  Reversing  on  this 
point    74    Hun,    546,    26    N.    Y.    Supp.    633,    holding    fraudulent    intent    of    the 
debtor  will  not  in  itself  invalidate  confession  of  judgment  for  bona  fide  debt. 
Fraud   in    assignment. 

Cited  in  Rothschild  v.  Salomon,  20  N.  Y.  S.  R.  60,  holding  creditor  attacking 
assignment  must  show  fraudulent  intent  in  the  assignment  itself. 
Fraud   upon   assignment. 

Cited  in  First  Nat.  Bank  v.  Wood,  86  Hun,  495,  33  N.  Y.  Supp.  777,  holding 
execution  of  mortgage  by  assignor  three  days  before  assignment  does  not  per  se 
indicate  intent  to  defraud  creditors;  Zimmer  v.  Hays,  8  App.  Div.  38,  40  N.  Y. 
Supp.  397,  holding  chattel  mortgage  void  as  to  creditors  does  not  necessarily 
avoid  an  assignment;  Swectser  v.  Davis,  26  App.  Div.  402,  49  N.  Y.  Supp.  874, 
holding  frauds  upon  assignment  not  basis  for  setting  it  aside;  Home  Bank  v. 
J.  B.  Brewster  &  Co.  17  Misc.  445,  41  N.  Y.  Supp.  203,  holding  prior  transfers 
void  as  'part  of  scheme  to  hinder,  delay,  and  defraud  creditors. 

Distinguished  in  Manning  v.  Beck,  54  Hun,  105,  7  N.  Y.  Supp.  215,  holding  cred- 
itor may  attack  assignment  whether  fraudulent  intent  be  shown  by  assignment 
itself  or  contemporaneous  acts;  Davis  v.  Harrington,  55  Hun,  111,  8  N.  Y.  Supp. 
218,  holding  acts  immediately  preceding  and  preparatory  to  assignment  insepa- 
rable from  assignment  itself;  First  Nat.  Bank  v.  Prager,  50  W.  Va.  679,  41 
S.  E.  363,  holding  good  on  demurrer  bill  distinctly  attacking,  as  fraudulent, 
general  assignment  of  all  of  debtor's  property. 


1  L.R.A.  250]  L.  R.  A.  CASES  AS  Al"l  iiOUl  1  IKs.  5-i 

Declarations    as    to    transfer    attacked    as    fraudulent. 

Cited  in  Kennedy  v.  Wood,  52  Hun,  48,  4  X.  Y.  Supp.  758,  holding  declarations 
admissible  against  assignor  and  assignee  as  to  assignor's  intent;  Baldwin  v. 
Short,  54  Hun,  476,  7  N.  Y.  Supp.  717,  holding  declarations  of  grantor  admissible; 
Scofield  v.  Spaulding,  54  Hun,  527,  7  N.  Y.  Supp.  927,  holding,  on  evidence  tending 
to  establish  conspiracy,  declarations  of  defendant  admissible  against  him;  First 
Nat.  Bank  v.  Warner,  55  Hun,  126,  8  X.  Y.  Supp.  765,  holding  representations  to 
creditors  as  to  solvency  about  time  of  assignment  admissible;  First  Xnt.  Bank 
v.  Moffatt,  77  Hun,  471,  28  N.  Y.  Supp.  1078,  holding  declarations  admissible  to 
qualify  testimony  of  grantor  and  to  show  fraud;  White,  Corbin  &  Co.  v.  Jones, 
86  Hun,  60,  34  N.  Y.  Supp.  203,  holding  declarations  of  parties  interested  at  time 
of  transaction,  as  to  overvaluation  of  property  paid  for  with  corporate  stock, 
admissible  to  show  intent;  Flannery  v.  Van  Tassel,  127  N.  Y.  634,  27  N.  E.  393, 
holding  declarations  of  vendor  in  absence  of  purchaser  in  good  faith  not  compe- 
tent against  vendee;  Leary  v.  Corvin,  63  App.  Div.  156,  71  N.  Y.  Supp,  335.  Re- 
versing 29  Misc.  74,  60  N.  Y.  Supp.  565,  holding  grantor's  prior  declarations 
against  interest  while  in  possession  admissible  against  his  grantee ;  McKean  v. 
Adams,  11  Misc.  388,  32  N.  Y.  Supp.  281,  holding  declarations  of  assignor  ad- 
missible against  assignee  in  case  of  mere  colorable  assignment  of  claim;  Muller 
v.  Flavin,  13  S.  D.  616,  83  N.  W.  687,  holding  subsequent  declaration  admissible 
where  both  grantor  and  grantee  participated  in  fraud;  Leary  v.  Corvin,  30  N.  Y. 
Civ.  Proc.  Rep.  45,  60  N.  Y.  Supp.  563,  holding  declarations  by  a  former  owner 
of  property  against  his  interest  and  made  prior  to  the  conveyance  by  him  were 
admissible  against  one  claiming  title  through  him ;  Flannery  v.  Van  Tassel,  3 
Silv.  Ct.  App.  460,  27  N.  E.  393,  on  when  declarations  of  an  assignor  are  admis- 
sible to  prejudice  the  title  of  his  assignee. 

Distinguished  in  Williams  v.  Williams,  142  N.  Y.  159,  36  N.  E.  1053,  holding, 
in  action  of  ejectment,  subsequent  declarations  of  grantor  inadmissible  against 
grantee;  Lent  v.  Shear,  160  N.  Y.  470,  55  N.  E.  2,  holding  testimony  of  grantor 
in  supplementary  proceedings  not  admissible  against  grantee;  Noyes  v.  Morris, 
56  Hun,  504,  10  N.  Y.  Supp.  561,  holding  declarations  not  competent  in  absence 
of  proof  of  conspiracy,  as  against  grantee  or  assignee  in  possession;  Commercial 
Bank  v.  Bolton,  87  Hun,  556,  35  N.  Y.  Supp.  138,  holding  ex  parte  declarations 
of  vendor  not  admissible  against  bona  fide  purchaser  for  value. 
Book  entries  as  evidence. 

Applied  in  Hotopp  v.  Huber,  160  N.  Y.  530,  55  N.  E.  206,  in  case  of  limited 
partnership. 

Cited  in  White  v.  Benjamin,  150  N.  Y.  267,  44  N.  E.  956,  holding  grantor's 
books  competent  on  question  of  good  faith  of  transfer  to  third  person;  Xewman 
v.  Clapp,  20  Misc.  70,  44  N.  Y.  Supp.  439,  holding  omission  of  entry  of  alleged 
loan  on  books  of  firms  interested,  pursuasive  proof  against  such  loan;  Cluett  v. 
Rosenthal,  100  Mich.  197,  43  Am.  St.  Rep.  446,  58  N.  W.  1009,  holding  informa- 
tion wrongfully  obtained  as  to  contents  of  books  admissible  for  one  not  responsible 
for  tort  in  obtaining  it ;  Volusia  County  Bank  v.  Bigelow,  45  Fla.  653,  33  So.  704, 
holding  an  account  of  wife  in  husband's  ledger  was  admissible  in  the  determina- 
tion of  the  indebtedness  alleged  to  be  the  consideration  of  a  sale  of  property  to 
her. 

Cited  in  note  (53  L.  R.  A.  534)  on  use  of  person's  books  of  account  as  evidence 
upon  issues  between  other  parties. 

Distinguished  in  Commercial  Bank  v.  Bolton,  87  Hun.  556,  35  N.  Y.  Supp.  138, 
holding  entries  in  books  by  vendor  before  sale  contemplated  inadmissible  against 
vendee. 


55  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  256 

Scope  of  Inquiry  as  to  fraud. 

Cited  in  Townsend  v.  Felthousen,  156  N.  Y.  625,  51  N.  E.  279,  holding  that  con- 
siderable latitude  must  be  allowed  in  trial  examination  and  scope  of  inquiry. 
Accounting;   by    fraudulent    grantee. 

Cited  in  Salt  Springs  Nat.  Bank  v.  Faucher,  92  Hun,  330,  36  N.  Y.  Supp.  742r 
holding  fraudulent  grantee  must  account  for  proceeds  of  mortgage  made  by  him 
upon  property  conveyed;  Scott  v.  Mead,  37  Fed.  875,  holding  fraudulent  grantee 
must  account  so  far  as  necessary  to  satisfy  claims  decreed  paid;  Harris  v.  Brink, 
100  Iowa,  369,  62  Am.  St.  Rep.  578,  69  N.  W.  684,  holding  grantee  chargeable  aa 
to  excess  of  property  fraudulently  conveyed  under  agreement  for  future  support; 
Loos  v.  Wilkinson,  113  N.  Y.  485,  4  L.  R.  A.  353,  10  Am.  St.  Rep.  495,  21  N.  E. 
392,  Reversing  51  Hun,  79,  5  N.  Y.  Supp.  410,  allowing  grantee  on  accounting  in 
main  case  credit  for  taxes,  repairs,  interest  paid,  and  commissions  for  collect- 
ing rents;  Massch  v.  Grauer,  123  App.  Div.  672,  108  X.  Y.  Supp.  54  (dissenting 
opinion),  on  fraudulent  grantee  as  accountable  for  rents  and  profits  from  what 
time. 

Cited  in  note  (36  L.  R.  A.  356)  on  allowing  lien  where  conveyance  in  satisfac- 
tion of  debt  is  held  partly  void. 

Distinguished  in  Daisy  Roller  Mills  v.  Ward,  6  N.  D.  325,  70  N.  W.  271,  holding 
that  fraudulent  grantee  cannot  hold  property  as  security  for  encumbrances  paid 
off  by  him,  no  accounting  being  asked;  Baldwin  v.  Short,  54  Hun,  476,  7  N.  Y. 
Supp.  717,  refusing  to  uphold  fraudulent  transfer,  as  security  for  actual  considera- 
tion, where  part  of  consideration  is  fictitious. 

1  L.  R.  A.  256,  GARNER  v.  GERMANIA  L.  INS.  CO.  110  N.  Y.  266,  18  N.  E.  130, 
Change  of  beneficiaries  of  insurance. 

Cited  in  Carpenter  v.  Negus,  17  Misc.  175,  40  N.  Y.  Supp.  995,  holding  ineffect- 
ual, insured's  unauthorized  change  of  beneficiaries  when  taking  paid-up  policy 
for  surrender  value;  Sterrit  v.  Lee,  24  Misc.  327,  52  N.  Y.  Supp.  1132,  holding 
administrator  of  beneficiary  entitled  to  proceeds  of  policy  payable  to  mother  of 
insured,  her  administrators,  executors,  or  assigns;  Phipard  v.  Phipard,  55  Hun, 
436,  8  N.  Y.  Supp.  728,  holding  trust  created  in  policy,  left  by  assured  with- 
trust  company,  with  written  statement  that  it  is  for  his  children ;  Griffith  v. 
New  York  L.  Ins.  Co.  101  Cal.  639,  40  Am.  St.  Rep.  96,  36  Pac.  113,  holding 
beneficiary's  right  unaffected  by  insured's  surrender  of  policy  on  return  of  pre- 
mium note;  Jackson  Bank  Y.  Williams,  77  Miss.  403,  78  Am.  St.  Rep.  530,  26  So. 
965,  holding  beneficiary  absolutely  entitled  to  policy  as  against  insured's  assignee; 
Sangunitto  v.  Goldey,  88  App.  Div.  80,  84  N.  Y.  Supp.  989,  holding  original  bene- 
ficiary entitled  to  proceeds  of  policy  where  insured  failed  to  comply  with  con- 
ditions of  policy  in  attempting  to  change;  Penn  Mut.  L.  Ins.  Co.  v.  Norcross,  163 
Ind.  391,  72  N.  E.  132,  on  how  interest  of  beneficiary  under  a  life  insurance  policy 
may  be  divested. 

Cited  in  footnote  to  Clark  v.  Hirschl,  9  L.  R.  A.  841,  which  holds  insured  may 
change  beneficiary  under  right  reserved. 

Cited  in  notes  (49  L.  R.  A.  737,  744)  on  power  of  insured  to  destroy  rights  of 
beneficiary;  (35  L.R.A. (N.S.)  845)  on  surrender  of  ordinary  life  policy  without 
beneficiary's  consent. 

Distinguished  in  Cyrenius  v.  Mutual  L.  Ins.  Co.  13  N.  Y.  S.  R.  205,  holding 
rights  of  beneficiary  paying  premiums  do  not  pass  on  mere  handing  of  policy  to 
insured;  Alliance  Milling  Co.  v.  Eaton,  86  Tex.  409,  24  L.  R.  A.  386,  25  S.  W. 
614,  holding  that  attachment  takes  priority  over  deed  of  trust  for  other  creditors 
ignorant  of  its  existence  before  attachment  was  levied. 


1  L.R.A.  256]  L.  R.  A.  CASES  AS  AUTHORITIES.  56 

Interest  of  beneficiary. 

Cited  in  Re  Judson,  188  Fed.  704,  holding  that  son  has  interest  in  policy  on 
father's  life  which  goes  to  his  trustee  in  bankruptcy,  where  bankruptcy  proceed- 
ings are  commenced  against  firm  composed  of  father  and  son  and  father  commits 
suicide  before  adjudication;  Dunn  v.  New  Amsterdam  Casualty  Co.  141  App.  Div. 
484,  126  N.  Y.  Supp.  229  (dissenting  opinion),  Reversing  67  Misc.  110,  121  X.  V. 
Supp.  686,  on  vested  interest  of  beneficiary  under  policy  of  casualty  company 
containing  reservation  of  right  to  change  beneficiary;  Re  McGregor,  18  Manitoba 
L.  Rep.  438,  holding  that  right  to  insurance  money  passes  to  personal  repre- 
sentatives of  beneficiary  on  his  death  before  insured. 
Lapse  of  policy. 

Cited  in  Weatherbee  v.  New  York  L.  Ins.  Co.  178  Mass.  578,  60  N.  E..  381, 
holding  that  beneficiary  ceasing  to  pay  premiums  cannot  claim  waiver  by  insurer 
assuming  to  end  policy  at  insured's  unauthorized  request. 

Cited  in  footnote  to  Stewart  v.  Union  Mut.  L.  Ins.  Co.  42  L.  R.  A.  147,  which 
holds  policy  not  forfeited  by  failure  to  pay  check  for  premium  note  during  life 
of  insured. 

Cited  in  notes  (9  L.  R.  A.  189)  on  forfeitures  under  insurance  policies  not 
favored  in  law;  (49  L.  R.  A.  742)  on  power  of  insured  to  destroy  right  of  bene- 
ficiary by  allowing  lapse. 

Distinguished  in  Miles  v.  Connecticut  Mut,  L.  Ins.  Co.  147  U.  S.  184,  37  L. 
ed.  131,  13  Sup.  Ct.  Rep.  275,  holding  insurer  not  liable,  after  accepting  sur- 
render in  good  faith,  to  beneficiary  not  showing  excuse  for  subsequent  nonpay- 
ment of  premiums;  Leonhard  v.  Provident  Sav.  Life  Assur.  Soc.  130  Fed.  289, 
holding  insurance  company  not  estopped  from  claiming  forfeiture  for  nonpay- 
ment of  premiums  on  policy  surrendered  for  another  by  husband,  without  knowl- 
edge of  wife,  the  beneficiary. 
Valuation  of  converted  funds  as  against  trustee. 

Cited  in  Hine  v.  Hine,  118  App.  Div.  588,  103  N.  Y.  Supp.  535,  holding  execu- 
tors making  an  unauthorized  disposition  of  farm  belonging  to  testator's  estate 
are  personally  responsible  for  the  value  of  the  farm  at  the  time  of  the  transfer. 
Revocation  of  trusts. 

Cited  in  notes   (20  Am.  St.  Rep.  861)   on  power  to  revoke  deed  of  trust;    (34 
Am.  St.  Rep.  218)   on  revocation  of  voluntary  trusts. 
Voluntary  trusts  arising:  from  declarations  of  trnstor. 

Cited  in  note  (34  Am.  St.  Rep.  198,  213)  on  voluntary  trusts  arising  from 
declarations  of  trustor. 

1  L.  R.  A.  258,  BIDELMAN  v.  STATE,  110  N.  Y.  232,  18  N.  E.  115. 
Injury  to  property  in  higrhvray. 

Followed  in  Ft.  Covington  v.  United  States  <Sb  C.  R.  Co.  8  App.  Div.  224,  40 
N.  Y.  Supp.  313,  holding  town  may  maintain  action  for  injury  to  or  destruction 
of  highway  bridge. 

Applied  in  Parish  v.  Baird,  160  N.  Y.  307,  54  N.  E.  724,  sustaining  right  of 
private  person  required  to  construct  and  maintain  sidewalk  to  recover  for  its 
negligent  injury. 

Cited  in  Com.  v.  Fitzgerald,  164  Mass.  590,  42  N.  E.  119,  holding  county's 
special  or  qualified  property  in  bridge  sufficient  to  sustain  indictment  for  burning ; 
Missouri  Edison  Electric  Co.  v.  Weber,  102  Mo.  App.  102.  76  S.  W.  736,  holding 
action  maintainable  by  electric  companies  for  damages  to  manholes  in  public 
highway;  Lenox  v.  State,  61  Misc.  31,  114  N.  Y.  Supp.  744,  holding  town  in  which 


57  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  260 

bridges  across  a  ditch  are  destroyed  by  the  negligent  manner  in  which  they  are 
widened,  has  a  claim  against  the  state. 

Cited  in  note  (61  L.  R.  A.  861)  on  construction  and  operation  of  canals. 

Distinguished  in  Levis  v.  Black  River  Improv.  Co.  105  Wis.  397,  81  N.  W.  669, 
denying  town's  right  to  recover  for  breach  of  agreement  to  keep  highway  in  re- 
pair, where  no  expenditure  made  or  liability  sustained. 
Actions  maintainable  by  municipalities. 

Cited  in  Albany  v.  Hooker,  204  N.  Y.  13,  97  N.  E.  403,  holding  that  county 
cannot  maintain  action  to  have  highway  improvement  act  declared  void. 

1  L.  R.  A.  260,  CENTRAL  TRUST  CO.  v.  NEW  YORK  CITY  &  N.  R.  CO.  110 

N.  Y.  250,   18  N.  E.  92. 
Mode    of   enforcing   payment   of   corporate   tax. 

Cited  in  People  ex  rel.  Young  v.  Willis,  35  N.  Y.  S.  R.  180,  12  N.  Y.  Supp.  385, 
holding  assessment  of  contracts  for  land  outside  of  village  not  authorized  by 
village  charter;  Boston  v.  Turner,  201  Mass.  195,  87  N.  E.  634,  holding  a  col- 
lector of  taxes  might  maintain  a  suit  in  equity  in  which  a  person  assessed  for 
the  tax  is  made  a  defendant,  to  enforce  a  trust  established  for  the  purpose, 
among  other  things,  of  paying  taxes. 

Cited  in  note  (57  L.  R.  A.  106)  on  taxation  of  corporate  franchises  in  the 
United  States;  administration  and  relief. 

Distinguished  in  Bloxham  v.  Consumer's  Electric  Light  &  Street  R.  Co.  36  Fla. 
548,  29  L.  R.  A.  511,  51  Am.  St.  Rep.  44,  18  So.  444,  holding  state  not  com- 
pelled to  seek  payment  of  taxes  from  proceeds  of  property  in  custody  of  court; 
Re  Stonebridge,  53  Hun,  551,  6  N.  Y.  Supp.  311  (dissenting  opinion),  as  to 
strict  statutory  procedure  in  procuring  receiver's  warrant  for  examination ; 
Rochester  v.  Bloss,  185  N.  Y.  49,  6  L.R.A.(N.S.)  699,  77  N.  E  794,  7  A.  &  E. 
Ann.  Gas.  15,  holding  city  could  not  maintain  an  action  to  recover  taxes  where 
charter  contained  no  provisions  expressly  authorizing  such  action. 
Prerogative  of  state  to  priority  in  payment  of  debts. 

Cited  in  Robinson  v.  Mutual  Reserve  L.  Ins.  Co.  175  Fed.  627,  holding  in  the 
winding  up  of  the  affairs  of  an  insolvent  corporation  debts  due  the  state  are  not 
given  a  preference  where  not  given  such  preference  by  state  law;  Central  Trust 
Co.  v.  Third  Ave.  R.  Co.  186  Fed.  292,  holding  that  lien  of  state  on  railroad's 
property  for  tax  on  dividends  does  not  have  priority  over  prior  mortgage. 

Cited  in  notes  (1  L.R.A.  (N.S.)  255)  on  preference  of  claims  of  state  over 
other  creditors;  (54  Am.  St.  Rep.  421)  on  claims  of  state  for  taxes  as  taking 
precedence  over  mortgages  of  railways  and  similar  property. 

Distinguished  in  Commissioner  of  Banking  v.  Chelsea  Sav.   Bank,   161   Mich. 
705,  127  N.  W.  351,  holding  the  state  by  the  adoption  of  the  common  law  did  not 
adopt  and  thereby  assert  the  arbitrary  prerogative  right  to  priority  of  payment 
of  its  debts. 
Priority   of   claim   agrainst   receiver   for  taxes. 

Cited  in  Re  Ginsburg,  27  Misc.  755,  59  N.  Y.  Supp.  656,  and  Re  Bowlby,  34 
Misc.  319,  69  N.  Y.  Supp.  783,  holding  personal  taxes  with  interest  for  default 
preferred,  on  general  assignment,  over  every  claim  except  expense  of  accounting; 
Gray  v.  Logan  County,  7  Okla.  324,  54  Pac.  485,  holding  state's  right  to  interest 
and  penalties  on  tax  on  insolvent  bank's  real  estate  continues  paramount,  during 
receivership;  State  v.  Central  Trust  Co.  36  C.  C.  A.  218,  94  Fed.  248,  holding 
statutory  tax  lien  on  personal  property  paramount  to  every  other  private  lien, 
prior  or  subsequent;  Schenck  v.  Consumer's  Coal  Co.  26  Abb.  N.  C.  357,  14  N.  Y. 
Supp.  343,  refusing  to  direct  receiver  to  pay  taxes,  in  preference  to  possible  liens 


1  L.R.A.  260]  L.  R.  A.  CASES  AS  AUTHORITIES.  58 

of  employees  for  wages;  Ledoux  v.  La  Bee,  83  Fed.  764,  holding  receiver  may 
apply  to  court  to  test  legality  of  tax;  Re  Tyler,  149  U.  S.  184,  37  L.  ed.  696,  13 
Sup.  Ct.  Rep.  785,  holding  sheriff  levying  state  tax  on  property  in  custody  of 
receiver  appointed  by  Federal  court,  and  detaining  the  property,  guilty  of  con- 
tempt; New  York  Terminal  Co.  v.  Gaus,  204  N.  Y.  516,  98  N.  E.  11,  Affirming 
139  App.  Div.  348,  124  N.  Y.  Su^p.  200,  holding  that  franchise  taxes  assessed 
during  operation  of  ferry  by  receiver  is  paramount  lien  on  ferry  property  in 
hands  of  purchaser  on  foreclosure. 

Cited  in  footnote  to  Illinois  Trust  &  Sav.  Bank  v.  Doud,  52  L.  R.  A.  481,  which 
holds  no  lien  created  on  quasi-corporation  funds  superior  to  prior  mortgage  lien, 
for  loan  not  authorized  by  mortgage. 

Cited  in  note  (2  L.R.A.  (N.S.)  1052)  on  priority  of  claims  for  taxes  against 
property  in  hands  of  receiver  over  recorded  liens. 

•  Distinguished  in  Wise  v.  L.  &  C.  Wise  Co.  153  X.  Y.  510,  47  N.  E.  788,  holding 
taxes  not  preferred,  without  statutory  authority,  over  specific  prior  liens  of  cred- 
itors obtained  by  levy. 
.Powers    and    liabilities    of   receivers. 

Cited  in  Wall  v.  Platt,  169  Mass.  400,  48  N.  E.  270,  holding  railroad  receivers 
liable  for  damage  by  fire,  during  receivership;  Farmers'  Loan  &  T.  Co.  v.  Northern 
P.  R.  Co.  57  C.  C.  A.  537,  120  Fed.  877,  upholding  power  of  receivers  of  railroad 
to  contract  to  carry  beyond  their  line. 
•Taxes  as  bearing  interest. 

Cited  in  State  v.  New  England  Furniture  &  Carpet  Co.  107  Minn.  53,  119  N.  W. 
427,  16  A.  &  E.  Ann.  Cas.  470,  holding  in  the  absence  of  statute  delinquent 
personal  taxes  do  not  bear  interest. 

1  L.  R.  A.  264,  AVERY  v.  EVERETT,  110  N.  Y.  317,  18  N.  E.  148. 
Vested   remainder. 

Cited  in  Gilbert  v.  Taylor,  148  N.  Y.  305,  42  N.  E.  713,  holding  bequest  of 
income  payable  after  death  of  life  beneficiary,  a  vested  one;  Mitchell  v.  Knapp, 
54  Hun,  504,  8  N.  Y.  Supp.  40,  holding  will  bequeathing  estate  for  joint  support 
of  two  persons  during  life  to  one,  with  remainder  to  other,  creates  vested  re- 
mainder; Re  Miller,  11  App.  Div.  341,  42  N.  Y.  Supp.  148,  holding  devise  of 
foe,  with  remainder  to  another  upon  death  before  age  of  twenty-one  or  without 
issue  surviving,  not  void  for  repugnancy;  Bunyan  v.  Pearson,  8  App.  Div.  86, 
40  N.  Y.  Supp.  429,  holding  devise  of  land  after  death  of  life  tenant  if  devisee 
shall  survive  such  life  tenant  vests  on  testator's  death;  Adams  v.  Becker,  2S 
N.  Y.  S.  R.  912,  8  N.  Y.  Supp.  260,  holding  conditional  fee  created  by  devise 
with  limitation  over  in  case  of  death  without  issue;  Chapman  v.  Moulton,  8  App. 
Div.  66,  40  N.  Y.  Supp.  408,  holding  devise  "subject  to  provisions  contained 
herein,"  with  limitation  over  in  event  of  death  without  issue,  refers  to  death 
after  testator's;  Walker  v.  Alverson,  87  S.  C.  65,  30  L.R.A.  (N.S.)  121,  68  S.  E. 
966,  holding  that  person  to  whom  land  is  devised  after  death  of  life  tenant,  with 
provision  that,  if  he  shall  predecease  life  tenant  without  heirs,  it  shall  go  to 
another,  takes  vested  remainder;  Archer  v.  Jacobs,  125  Iowa,  476,  101  N.  W 
195,  distinguishing  between  vested  and  contingent  remainders;  Re  Farmer's  Loan 
&  T.  Co.  119  App.  Div.  106,  104  N.  Y.  Supp.  1127,  51  Misc.  164,  100  N.  Y.  Supp. 
862,  holding  under  a  gift  of  a  fund  to  a  person  with  a  proviso  that  if  sueh  person 
-dies  without  issue  it  is  to  go  to  a  third  person,  such  third  person  is  vested  with 
an  estate  in  expectancy  which  will  ripen  into  an  absolute  estate  on  death  without 
issue  of  the  other  person. 

Cited  in  note  (10  Eng.  Rul.  Cas.  820)  as  to  when  remainder  is  vested. 


59  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  270 

Time  to  which  contiiig-ency  of  death   without  insne  in  referable. 

Cited  in  note  (25  L.R.A. (X.S.)  1120)  on  time  to  which  contingency  of  death  of 
legatee  or  devisee  without  child  or  issue,  upou  which  gift  conditioned  is  referable. 
•Civil  death  of  convict. 

Followed  in  Re  Zeph,  50  Hun,  524,  3  N.  Y.  Supp.  460,  denying  letters  of 
-administration  upon  estate  of  life  convict. 

Cited  in  Stephani  v.  Lent,  30  Misc.  349,  63  N.  Y.  Supp.  471,  holding  payment 
upon  recognized  authorization  of  convict  "civilly  dead"  not  recoverable  as  without 
consideration;  La  Chapelle  v.  Burpee,  69  Hun,  440,  25  N.  Y.  Supp.  452,  holding 
convict  for  term  of  years,  with  civil  rights  suspended,  may  accept  devise;  Davis 
v.  Laning,  85  Tex.  41,  18  L.  R.  A.  84,  34  Am.  St.  Rep.  784,  19  S.  W.  846,  holding 
sentence  to  life  imprisonment  not  within  statutes  casting  descent  at  death; 
Schmidt  v.  Northern  Life  Asso.  112  Iowa,  44,  51  L.  R.  A.  143,  84  Am.  St.  Rep. 
323,  83  N.  W.  800,  holding  children  of  beneficiary  cannot  take  as  her  heirs  during 
her  lifetime  even  though  she  is  civilly  dead;  Smith  v.  Becker,  62  Kan.  542,  53 
L.  R.  A.  143,  64  Pac.  70,  holding  civil  death  by  sentence  to  life  imprisonment  does 
not  cast  descent;  McLaughlin  v.  McLaughlin,  228  Mo.  645,  137  Am.  St.  Rep.  680, 
129  S.  W.  21,  holding  void,  divorce  decree  against  convict  investing  wife  with 
his  realty,  where -he  was  not  in  court  through  a  trustee. 

Cited  in  notes  (18  L.R.A.  84)  on  civil  deaths  in  United  States;  (25  L.R.A. 
(N.S.)  1172)  on  effect  of  civil  death;  (8  Eng.  Rul.  Cas.  171)  on  rights  of  one 
civilly  dead  by  reason  of  imprisonment. 

Distinguished  in  Re  Donnelly,  125  Cal.  419,  73  Am.  St.  Rep.  62,  58  Pac.  61, 
holding  one  sentenced  to  life  imprisonment,  without  right  of  inheritance. 

1  L.  R.  A.  270,  PHARIS  v.  GERE,  110  N.  Y.  336,  18  N.  E.  135. 

Reargument  denied  in  112  N.  Y.  408,  20  N.  E.  551. 
Forcible  entry  and  detainer. 

Cited  in  Bach  v.  New,  23  App.  Div.  549,  48  N.  Y.  Supp.  777,  holding  violence 
necessary  to  support  action;  Fults  v.  Munro,  202  N.  Y.  42,  37  L.R.A. (N.S.)  605, 
95  X.  E.  23,  holding  that  force  used  must  be  unusual  and  tend  to  bring  about  a 
breach  of  the  peace. 

Cited  in  note  (121  Am.  St.  Rep.  397)  on  right  of  civil  action  for  forcible  entry 
and  detainer. 
Committee   of  lunatic. 

Cited  in  Walrath  v.  Abbott,  75  Hun,  452,  27  N.  Y.  Supp.  529,  holding  com- 
mittee without  power  to  accept  assignment  of  mortgage  in  part  payment  of 
lunatic's  property  ordered  sold  by  court;  Re  Board  of  Street  Opening.  89  Hun. 
528,  35  N.  Y.  Supp.  409,  holding  committee  of  insane  tenant  by  entirety  not 
entitled  to  any  portion  of  award  in  condemnation  proceedings;  People  ex  rel. 
Canaday  v.  Williams,  90  Hun,  505,  36  N.  Y.  Supp.  65,  holding  right  of  committee 
to  take  title  in  his  own  name  for  lunatic,  doubtful;  Kent  v.  West,  16  App.  Div. 
498,  44  N.  Y.  Supp.  901,  holding  county  court  may  consent  to  action  against 
committee  of  lunatic  appointed  by  it;  Kent  v.  WTest,  33  App.  Div.  116,  53  N.  Y. 
Supp.  244,  holding  committee  takes  no  title  to  estate  of  lunatic;  Johnson  v. 
Ayres,  18  App.  Div.  499,  46  N.  Y.  Supp.  132,  holding  sureties  not  bound  for 
committee's  misappropriation  of  funds  from  unauthorized  sale  of  real  estate: 
Ward  v.  Rogers,  51  Misc.  300,  100  N.  Y.  Supp.  1058,  holding  a  committee  of  a 
lunatic  is  not  liable  in  his  representative  capacity  for  his  negligence  in  care  of 
lunatic's  lands  which  causes  an  injury  to  a  third  person;  Rooney  v.  People's 
Trust  Co.  61  Misc.  161,  114  N.  Y.  Supp.  612,  holding  committee  of  a  lunatic 
is  personally  liable  to  tenant  of  lunatic's  premises  for  his  negligence  in  failing 


1  L.R.A.  270]  L.  R.  A.  CASES  AS  AUTHORITIES.  GO 

to  keep  in  repair;  Newton  v.  Evers,  68  Misc.  357,  123  N.  Y.  Supp.  1009,  holding 
that  deed  by  committee  of  lunatic  not  in  strict  conformity  with  Code  is  void; 
Scribner  v.  Young,  111  App.  Div.  816,  97  N.  Y.  Supp.  866,  holding  the  committee 
of  a  lunatic  cannot  authorize  sale  of  timber  on  lands  of  lunatic  without  permis- 
sion of  court;  Re  Eisenberg,  117  Fed.  787;  Grant  v.  Humbert,  114  App.  Div.  464, 
100  N.  Y.  Supp.  44, — on  nature  of  committee's  interest  in  property  of  lunatic. 
Cited  in  note  (8  L.R.A. (N.S.)  437)  on  power  of  guardian  or  committee  to  bind 
incompetent  or  his  estate  by  contract. 
—  Appointment. 

Cited  in  note  (13  L.  R.  A.  758)   on  mere  mental  weakness  as  justification  for 
appointment  of  guardian. 

1  L.  R.  A.  273,  PEOPLE  v.  McQUADE,  110  N.  Y.  284,  18  N.  E.  156. 
Peremptory  challenge  by  the  people. 

Cited  in  People  v.  McGonegal,  136  N.  Y.  66,  48  N.  Y.  S.  R.  901,  32  N.  E.  616, 
holding  prosecution  may  reserve  peremptory  challenges  until  after  challenge  for 
actual  bias  of  both  sides;  People  v.  Elliott,  16  N.  Y.  Grim.  Rep.  229,  73  N.  Y. 
Supp.  279,  holding  it  not  error  in  allowing  a  peremptory  challenge  by  district 
attorney  to  eleventh  juror  after  twelve  have  been  accepted  but  not  sworn. 

Distinguished  in  People  v.  Elliott,  66  App.  Div.  180,  73  N.  Y.  Supp.  279,  up- 
holding peremptory  challenge  by  people  after  juror's  acceptance,  in  absence  of 
objection  to  order  of  challenge. 
Bearing  of  unused  peremptory  challenges  on  erroneous  ruling  as  to  bias. 

Cited  in  Santee  v.  Standard  Pub.  Co.  36  App.  Div.  557,  55  N.  Y.  Supp.  361, 
holding  unused  peremptory  challenges  and  a  fair  trial,  no  cure  for  court's  errone- 
ous exclusion  of  competent  juror;  Burch  v.  Southern  P.  Co.  32  Nev.  105,  104 
Pac.  225,  Ann.  Cas.  1912  B,  1166,  holding  denial  of  challenge  of  juror  for  cause 
not  prejudicial  error,  if  party  has  unused  peremptory  challenges. 

Distinguished  in  People  v.  Larubia,  140  N.  Y.  90,  35  N.  E.  412,  and  People  v. 
Price,  53  Hun,  189,  6  N.  Y.  Supp.  833,  holding  defendant  using  peremptory  chal- 
lenge after  court's  ruling  not  injured,  having  challenges  enough  left. 
Substantial  statutory  rights  of  defendant. 

Cited   in  Re  Taylor,   8   Misc.    172,   28   N.   Y.   Supp.   500,   holding  witness   not 
excusable  from  testifying  before  grand  jury  where  evidence  not  to  be  used  against 
him. 
Review-ability    of   ruling   on    challenge   to   juror. 

Cited  in  People  v.  Flaherty,  27  App.  Div.  539,  50  N.  Y.  Supp.  574,  holding 
ruling  not  review-able  unless  evidence  shows  actual  bias;  People  v.  McGonegal, 
136  N.  Y.  70,  32  N.  E.  616,  holding  question  of  competency  of  jurors  on  evidence 
produced  one  of  fact  and  not  reviewable;  Stevens  v.  Union  R.  Co.  26  R.  I.  103. 
66  L.R.A.  470,  58  Atl.  492,  holding  that  court  allowed  a  greater  number  of  chal- 
lenges than  allowed  by  law  is  not  ground  for  a  new  trial  where  no  prejudicial 
error  is  shown;  People  v.  Wolter,  203  N.  Y.  491,  97  N.  E.  30,  holding  that  over- 
ruling by  trial  judge  of  challenge  to  juror  on  ground  of  holding  opinion  is  conclu- 
sive. 

Distinguished  in  Butler  v.  Glens  Falls,  S.  H.  &  Ft.  E.  Street  R.  Co.  121  N.  Y. 
117,  24  N.  E.   187,  holding  court   cannot  review  ruling  on   challenge   for   favor 
except  in  absence  of  any  evidence  to  sustain  it. 
Competency   of  juror. 

Cited  in  People  v.  McLaughlin,  2  App.  Div.  429,  37  N.  Y.  Supp.  1005,  holding 
court  must  sustain  challenge  if  satisfied  juror  cannot  act  impartially:  People  v. 
Wilmarth,  156  N.  Y.  567,  51  N.  E.  277,  holding  overruling  of  challenge  for  bias 


61  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  273 

error  of  law,  juror  failing  to  declare  opinions  weald  not  influence  verdict; 
Williams  v.  United  States,  35  C.  C.  A.  373,  93  Fed.  400,  holding  overruling  of 
challenge  error,  juror's  ability  to  disregard  prejudice  being  doubtful;  People  v. 
Fanshawe,  137  N.  Y.  77,  32  N.  E.  1102,  Affirming  65  Hun,  94,  19  N.  Y.  Supp.  865, 
holding  juror  stating  that  he  would  hesitate  to  convict  on  circumstantial  evidence 
showing  guilt  beyond  reasonable  doubt,  properly  excluded;  People  v.  Miller,  81 
App.  Div.  256,  80  N.  Y.  Supp.  1070,  holding  juror  with  opinion  as  to  guilt  of 
accused  disqualified,  when  not  shown  that  it  would  not  influence  his  verdict; 
People  v.  Fanshawe,  8  N.  Y.  Crim.  Rep.  348,  19  N.  Y.  Supp.  865,  holding  court 
did  not  err  in  excluding  a  proposed  juror  who  states  that  he  will  follow  his  own 
view  as  to  the  weight  to  be  given  to  circumstantial  evidence;  People  v.  Me- 
Laughlin,  11  N.  Y.  Crim.  Rep.  107,  37  N.  Y.  Supp.  1005;  People  v.  Wilmarth,  13 
N.  Y.  Crim.  Rep.  287, — on  the  existence  of  an  opinion  as  to  guilt  or  innocence 
of  accused  as  prima  facie  constituting  a  disqualification. 

Cited  in  notes  (35  L.R.A.  (N.S. )  1013)  on  opinion  gained  from  newspaper  as 
disqualifying  juror  in  criminal  case;  (40  L.  ed.  U.  S.  238)  on  disqualification  of 
jurors  by  reason  of  previously  formed  opinions. 

Distinguished  in  People  v.  McGonegal,  136  N.  Y.  67,  32  N.  E.  616,  holding 
record  did  not  show  any  uncertainty  as  to  mental  condition  of  juror  objected  to. 
Acquaintance  with  counsel  as  affecting  bins. 

Cited  in  Santee  v.  Standard  Pub.  Co.  36  App.  Div.  557,  55  N.  Y.  Supp.  361, 
holding  friendship  of  juror's  partner  for  defendant's  attorney  no  ground  for 
exclusion. 

Admissiltility   of  declarations   or  acts  of  co-conspirator. 

Cited  in  Douglas  v.  McDermott,  21  App.  Div.  13,  47  N.  Y.  Supp.  336,  holding 
subsequent  declarations  of  alleged  coconspirator,  no  part  of  res  gestce,  inadmissi- 
ble; People  v.  Butler,  62  App.  Div.  513,  71  N.  Y.  Supp.  129,  holding  subsequent 
acts  and  declarations  of  alleged  accomplice  inadmissible;  People  v.  Kief,  126 
X.  Y.  663,  27  N.  E.  556,  Affirming  58  Hun,  340,  11  N.  Y.  Supp.  926,  holding 
acts  or  stat«ment8  of  one  defendant  prior  or  subsequent  to  conspiracy  inadmissible 
against  others;  People  v.  McKane,  143  N.  Y.  470,  38  N.  E.  950,  holding  acts  or 
declarations  of  conspirators  in  furtherance  of  common  purpose  admissible; 
Jenkins  v.  State,  35  Fla.  821,  48  Am.  St.  Rep.  267,  18  So.  182,  holding  subsequent 
declarations  and  acts  of  confederate  inadmissible;  State  v.  Bowker,  26  Or.  311, 
38  Pac.  124,  holding  inadmissible  conviction  of  coindictee  previously  tried; 
Brown  v.  United  States,  150  U.  S.  98,  37  L.  ed.  1013,  14  Sup.  Ct.  Rep.  37,  and 
Connecticut  Mut.  L.  Ins.  Co.  v.  Hillmon,  46  C.  C.  A.  673,  107  Fed.  839,  holding 
narrative  of  ended  conspiracy  by  coconspirator  inadmissible;  People  v.  Doody, 
72  App.  Div.  392,  76  N.  Y.  Supp.  606  (dissenting  opinion),  as  to  inadmissibility 
of  proof  that  another  than  defendant  had  pleaded  guilty  to  unconvicted  crime; 
Lederer  v.  Adler,  46  Misc.  566,  92  N.  Y.  Supp.  827;  People  v.  Kief,  4  Silv.  Ct. 
App.  450,  27  N.  E.  556, — holding  acts  and  statements  of  alleged  conspirators 
prior  to  the  formation  or  subsequent  to  the  termination  of  the  conspiracy  are 
inadmissible  as  evidence  against  co-conspirators;  People  v.  Butler,  15  N.  Y.  Crim. 
Rep.  511,  71  N.  Y.  Supp.  129,  holding  the  acts  and  declarations  of  an  alleged 
accomplice  were  not  admissible  against  accused  in  prosecution  for  arson;  People 
v.  Doody,  16  N.  Y.  Crim.  Rep.  490,  76  N.  Y.  Supp.  606  (dissenting  opinion), 
on  the  inadmissibility  in  a  prosecution  for  perjury  of  evidence  given  by  accom- 
plice as  to  other  crime;  People  v.  McKane,  9  N.  Y.  Crim.  Rep.  388,  on  when  acts 
and  declarations  of  conspirators  are  admissible  in  evidence. 


1  L.R.A.  281]  L.  R.  A.  CASES  AS  AUTHORITIES.  62 

1  L.  R.  A.  281,  MILLIKEN  v.  WESTERN  U.  TELEG.  CO.  110  N.  Y.  403,  18 

N.  E.  251. 
Facts    admitted    by   demurrer. 

Cited  in  Seacord  v.  Pendleton,  55  Hun,  582.  9  N.  Y.  Supp.  46,  and  Cahill  Iron 
Works  v.  Pemberton,  30  Abb.  N.  C.  453,  27  X.  Y.  Supp.  929,  holding  truth  of 
allegations  must  be  assumed  on  demurrer;  Arrow  S.  S.  Co.  v.  Bennett,  73  Hun, 
84,  25  N.  Y.  Supp.  1029;  Pettibone  v.  Moore,  75  Hun,  463,  27  N.  Y.  Supp.  455; 
Hatch  v.  Matthews,  83  Hun,  350.  31  N.  Y.  Supp.  926;  National  Cash  Register 
Co.  v.  Besch,  51  App.  Div.  102,  64  N.  Y.  Supp.  462;  Manning  v.  Wells,  8  Misc. 
646,  29  N.  Y.  Supp.  1044;  Wessels  v.  Carr,  16  Misc.  441,  38  N.  Y.  Supp.  600, 
15  App.  Div.  3.60;  Trueb  v.  New  York  Asbestos  Mfg.  Co.  16  Misc.  483,  38  N.  Y. 
Supp.  604;  D'Andre  v.  Zimmermann,  17  Misc.  359,  39  N.  Y.  Supp.  1086;  Reilly 
v.  Poerschke,  19  Misc.  615,  44  N.  Y.  Supp.  422;  Phenix  Xat.  Bank  v.  A.  B.  Cleve- 
land Co.  34  N.  Y.  S.  R.  501,  11  N.  Y.  Supp.  873;  Bottom  v.  Chamberlain,  21 
Misc.  558,  47  N.  Y.  Supp.  733;  McCann  v.  Hazard,  36  Misc.  9,  72  X.  Y.  Supp.  45; 
Woodruff  v.  Woodruff,  36  Misc.  17,  72  N.  Y.  Supp.  39;  Reno  Oil  Co.  v.  Culver,  33 
Misc.  719,  68  N.  Y.  Supp.  303;  Keene  v.  Xewark  Watch  Case  Material  Co.  39 
Misc.  8,  78  N.  Y.  Supp.  753;  Budd  v.  Howard  Thomas  Co.  40  Misc.  55,  81  X.  Y. 
Supp.  152;  Williamson  v.  Wager,  90  App.  Div.  190,  86  X.  Y.  Supp.  684,— requiring 
assumption  as  true,  of  facts  reasonably  to  be  implied  from  allegations;  Moon  v. 
Allen,  82  Minn.  95,  84  N.  W.  654  (dissenting  opinion),  on  the  same  point; 
Fahr  v.  Manhattan  R.  Co.  9  Misc.  59,  29  N.  Y.  Supp.  1,  holding  implied  fact  must 
appear  by  reasonable  and  fair  intendment;  Delano  v.  Rice,  21  Misc.  715,  48  X.  Y. 
Supp.  130,  holding  counterclaim  sufficient  on  demurrer  if  cause  of  action  infer- 
able from  allegations;  Stewart  v.  Blatchley,  8  Misc.  476,  29  X.  Y.  Supp.  547, 
holding  that  demurrer  admits  all  relative  facts  well  pleaded:  United  States  Xat. 
Bank  v.  Homestead  Bank,  46  X.  Y.  S.  R.  174,  18  X.  Y.  Supp.  758,  and  Lake  v. 
Sweet,  45  N.  Y.  S.  R.  370,  18  N.  Y.  Supp.  342,  holding  complaint  not  demurrable 
for  imperfect  or  informal  averments,  indefiniteness,  or  argumentative  statements; 
Odell  v.  Clyde,  38  App.  Div.  335,  57  N.  Y.  Supp.  126,  holding  on  demurrer  allega- 
tion of  delivery  of  note  implies  delivery  by  maker;  Stieglitz  v.  Belding,  20  Misc. 
300,  45  N.  Y.  Supp.  670,  holding  duplicitous  answer  not  open  to  demurrer; 
Johnson  v.  Golder,  132  N.  Y.  121,  30  N.  E.  376,  holding  complaint  not  demurrable 
for  lack  of  precision  in  allegations  as  to  death  of  person,  where  inference  of 
death  reasonable;  Cahill  Iron  Works  v.  Pemberton,  30  Abb.  X.  C.  453,  27  X.  Y. 
Supp.  927;  Candee  v.  Baker,  131  App.  Div.  642,  116  N.  Y.  Supp.  55,— on  a  de- 
murrer as  admitting  to  be  true  the  facts  pleaded  as  well  as  facts  fairly  and 
reasonably  inferrable  from  those  pleaded;  Potter  v.  Gilbert,  130  App.  Div.  637, 
115  N.  Y.  Supp.  425,  holding  complaint  in  an  action  against  an  architect  by  one 
receiving  injuries  from  the  fall  of  a  wall  did  not  state  a  cause  of  action  where 
it  alleged  the  plans  were  defective  but  did  not  allege  the  collapse  of  the  wall 
was  the  result  thereof  or  that  the  architect  permitted  or  knew  of  a  departure 
from  his  plans;  Stieglitz  v.  Belding,  26  N.  Y.  Civ.  Proc.  Rep.  315,  45  N.  Y.  Supp. 
670,  holding  the  duplicity  of  a  pleading  was  not  open  to  attack  on  demurrer 
where  a  defense  was  disclosed  by  the  averments;  Motley  v.  Mercantile  Trust  Co. 
51  Misc.  462,  100  N.  Y.  Supp.  281;  Trueb  v.  New  York  Abestos  Mfg.  Co.  25  X.  Y. 
Civ.  Proc.  Rep.  347,  38  X.  Y.  Supp.  604,— on  necessity  that  a  pleading  be  liberally 
construed  on  demurrer. 

Distinguished  in  Eichner  v.  Bowery  Sav.  Bank,  78  X.  Y.  S.  R.  333,  44  X.  Y. 
Supp.  332,  holding  complaint  against  bank  for  not  paying  check  demurrable  where 
it  fails  to  allege  indorsement,  certification,  and  due  presentment  for  payment. 
Damug-es  for  nondelivery  of  telegram. 

Cited  in  McPeek  v.  Western  U.  Teleg.  Co.  107  Iowa,  362,  43  L.  R.  A.  218,  70* 


63  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  281 

Am.  St.  Rep.  205,  78  N.  W.  63,  holding  injured  party  not  limited  to  damages 
which  might  reasonably  have  been  within  contemplation  of  parties. 

Cited  in  note  (38  L.  ed.  U.  S.  883)  on  damages  for  error  in  telegraph  message, 
or  failure  to  deliver. 
DII  r.i    as  to  telegrams. 

Cited  in  Western  U.  Teleg.  Co.  v.  Millsap,  135  Ala.  417,  33  So.  160,  holding 
company  liable  to  sendee  for  failure  to  deliver  message  sent  by  undisclosed  agent 
of  sendee. 

Cited  in  footnotes  to  Western  U.  Teleg.  Co.  v.  Barefoot,  64  L.  R.  A.  491,  which 
holds  action  maintainable  by  agent  against  company  for  nondelivery  of  telegram 
to  principal;  Shingleur  v.  Western  U.  Teleg.  Co.  30  L.  R.  A.  444,  holding  right 
of  action  for  mistake  in  telegram  as  to  sale  by  agent  lost  by  ratification  with 
notice;  Western  U.  Teleg.  Co.  v.  Short,  9  L.  R.  A.  744,  which  holds  failure  of 
company  to  deliver  message  as  received,  prima  facie  evidence  of  negligence ; 
McCornick  v.  Western  U.  Teleg.  Co.  38  L.  R.  A.  684,  which  holds  company  not 
liable  to  stranger  acting  on  mistake  in  telegram. 

Cited  in  notes  (30  L.R.A. (N.S.)  1119,  1121)  on  right  of  addressee  of  telegram 
to  sue  for  delay  in  delivery;  (27  Am.  St.  Rep.  924,  925)  on  duty  of  telegraph 
company  to  find  addressee;  (24  Eng.  Rul.  Cas.  783,  785)  on  addressee's  right  of 
action  for  mistake  in  telegram. 

Distinguished  in  Riley  v.  Western  U.  Teleg.  Co.  6  Misc.  227,  26  N.  Y.  Supp. 
532,   which   holds   that   telegraph   company   may   stipulate   against   liability   for 
delay  beyond  sum  paid  for  message. 
Duty  to  deliver  telegram. 

Cited  in  Harper  v.  WTestern  U.  Teleg.  Co.  92  Mo.  App.  312,  holding  telegraph 
company  may  contract  to  deliver  message  otherwise  than  as  directed  in  message 
itself. 

Cited  in  note  (15  L.  R.  A.  130)   on  duty  of  telegraph  company  to  find  person 
addressed. 
—  Maintenance  of  action  by  undisclosed  principal. 

Cited  in  Wells  v.  Western  U.  Teleg.  Co.  144  Iowa,  617,  24  L.R.A.(N.S.)  1051  r 
138  Am.  St.  Rep.  317,  123  X.  W.  371,  holding  an  undisclosed  principal  of  the 
addressee  of  a  telegram  may  recover  damages  in  an  action  of  tort  for  the  negli- 
gence of  the  telegraph  company  in  sending  a  forged  telegram;  Moore  v.  Vulcanite 
Portland  Cement  Co.  121  App.  Div.  673,  106  N.  Y.  Supp.  393,  on  right  of  undis- 
closed principal  to  maintain  an  action  on  a  contract  entered  into  by  agent  in  his 
own  name;  Western  U.  Teleg.  Co.  v.  Schriver,  4  L.R.A.(N.S.)  686,  72  C.  C.  A. 
596,  141  Fed.  548,  on  the  duty  owed  by  a  telegraph  company  to  the  undisclosed 
principal  of  the  addressee. 

Distinguished  in  Western  U.  Teleg.  Co.  v.  Potts,  120  Tenn.  45,  19  L.R.A.(N.S.> 
481,  127  Am.  St.  Rep.  991,  113  S.  W.  789,  holding  damages  for  mental  anguish 
could  not  be  recovered  by  an  undisclosed  principal  for  delay  in  the  transmission- 
of  a  telegram  though  both  the  sender  and  sendee  are  his  agents. 
Implied    obligation    to    pay    for    services. 

Cited  in  Baer  v.  Koch,  2  Misc.  335,  21  N.  Y.  Supp.  974,  holding,  in  absence 
of  agreement,  law  implies  liability  for  reasonable  compensation  for  real  estate 
broker's  services. 

Cited  in  note  (6  Eng.  Rul.  Cas.  42)  on  implied  obligation  to  pay  for  services. 
Sufficiency  of  complaint  for  breach  of  contract. 

Cited  in  Chicago  Crayon  Co.  v.  Slattery,  68  Misc.  152,  123  N.  Y.  Supp.  987, 
holding  insufficient  complaint  for  breach  of  bond  of  surety  alleging  account 


1  L.R.A.  281]  L.  K.  A.  CASES  AS  AUTHORITIES.  64 

stated  between  principal  and  employer,  sum  due,  demand  on  principal,  refusal, 
demand  on  surety  and  amount  due  from  surety. 

1  L.  R.  A.  285,  SCRANTON  ELECTRIC  LIGHT  &  HEAT  CO.'S  APPEAL,   122 

Pa.  154,  9  Am.  St.  Rep.  79,  15  Atl.  446. 
Unconscionable  demand   in   <-<|iiity. 

Cited  in  Barnes  v.  Starr,  64  Conn.  155,  28  Atl.  980,  refusing  to  cancel  ante- 
nuptial contract  made  to  deceive  heirs  apparent;  Hayes  v.  Davis,  23  Nev.  321, 
46  Pac.  888,  refusing  to  enjoin  issuance  of  duplicate  of  lost  certificate  of  county 
indebtedness. 
Strict    construction    of    exclusive    corporate    privileges. 

Cited  in  Warren  Gaslight  Co.  v.  Pennsylvania  Gas  Co.  161  Pa.  513,  29  Atl. 
101,  Affirming  Warren  Gaslight  Co.  v.  Pennsylvania  Gas  Co.  13  Pa.  Co.  Ct.  312; 
Circleville  Light  &  P.  Co.  v.  Buckeye  Gas  Co.  69  Ohio  St.  271,  69  N.  E.  436,— 
holding  exclusive  authority  to  supply  artificial  gas  light  not  to  prevent  use  of 
natural  gas;  Re  Pittsburg  Illuminating  Gas  Co.  16  Pa.  Co.  Ct.  438,  4  Pa.  Dist. 
R.  302,  construing  doubtful  language  of  statute  granting  exclusive  privileges, 
against  such  grant;  Re  Home  Electric  Co.  11  Pa.  Co.  Ct.  180,  1  Pa.  Dist.  R.  98, 
29  W.  N.  C.  384,  holding  that  under  statutes  electric  light  companies  do  not  have 
exclusive  privileges;  Consolidated  Gas  Co.  v.  Mitchell,  1  Dauphin  Co.  Rep.  75, 
holding  grant  of  exclusive  privileges  not  intended  where,  in  nature  of  case,  they 
could  not  be  obtained;  Baily  v.  Philadelphia,  20  Pa.  Co.  Ct.  179,  6  Pa.  Dist.  R. 
732,  holding  grant  of  exclusive  rights  to  supply  and  distribute  gas  applies  to 
manufactured  gas  only;  Armstrong  Water  Co.  v.  Rayburn  Water  Co.  24  Pa.  Co. 
Ct.  19,  holding  exclusive  privilege  of  supplying  water  limited  to  particular  district 
mentioned  ia  grant;  Bienville  Water  Supply  Co.  v.  Mobile,  186  U.  S.  219,  46  L. 
ed.  1135,  22  Sup.  Ct.  Rep.  820,  and  Mobile  v.  Bienville  Water  Supply  Co.  130  Ala. 
383,  30  So.  445,  holding  grant  of  franchise  to  water  company  not  prevent  sub- 
sequent grant  of  franchise  to  city;  Cumberland  Gaslight  Co.  v.  West  Virginia 
&  M.  Gas  Co.  110  C.  C.  A.  383,  188  Fed.  592,  holding  that  corporation  having 
exclusive  franchise  to  use  streets  to  pipe  manufactured  gas  for  lighting  cannot 
exclude  another  corporation  from  use  of  streets  for  natural  gas  for  fuel  and 
lighting;  Allegheny  County  Light  Co.  v.  Booth,  216  Pa.  567,  9  L.R.A.(X.S.)  405, 
66  Atl.  72,  holding  complainant  company  incorporated  for  the  purpose  of  the 
manufacturing  and  supply  of  light  was  not  thereby  authorized  to  supply  light  by 
electricity;  Middlecreek  Electric  Co.  v.  Hughes,  34  Pa.  Co.  Ct.  271,  holding  a 
statute  conferring  the  power  of  eminent  domain  upon  fuel  companies  would  not 
enable  electric  light  companies  to  acquire  private  land  under  such  power;  Com. 
v.  New  Castle  Electric  Co.  11  Pa.  Dist.  R.  390,  holding  under  an  act  taxing  the 
gross  receipts  of  electric  light  companies,  the  receipts  derived  from  the  business 
of  supplying  power  was  taxable;  Com.  ex  rel.  Atty.  Gen.  v.  Consumers'  Gas  Co. 
214  Pa.  80,  63  Atl.  463  (dissenting  opinion),  on  grant  of  a  privilege  to  corporation 
as  to  be  construed  against  it  in  case  of  intendments  not  obviously  in  its  favor. 
Ultra  vires  contracts. 

Cited  in  notes  (4  L.  R.  A.  747)  on  equitable  suits  against  directors,  as  to 
ultra  vires  contracts;  (12  L.  R.  A.  168)  on  estoppel  of  corporation  to  deny 
liability  on  its  contracts;  (6  L.R.A.  290)  on  doctrine  of  ultra  vires;  (111  Am.  St. 
Rep.  311)  on  implied  power  of  corporations  to  borrow  money  and  give  evidence 
of  indebtedness  and  security  therefor. 
— -  Abnegation  of  franchise  duty. 

Cited  in  Montreal  Park  &  I.  R.  Co.  v.  Chateaugay  &  X.  R.  Co.  35  Can.  S.  C.  59, 


65  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  289 

on  agreement  by  corporation  to  abstain   from   the  exercise  of  its  franchise   as 
being  contrary  to  public  policy  and  nonenforceable. 

1  L.  R.  A.  287,  HAMILTON  v.  DENNISON,  56  Conn.  359,  15  Atl.  748. 
ftiiilit    of  action  by  one   in   possession   of   dominant   estate. 

Cited  in  Greist  v.  Amrhyn,  80  Conn.  290,  68  Atl.  521,  holding  one  in  possession 
of  premises  to  which  an  easement  is  appurtenant  is  not  obliged  to  prove  title 
before  he  can  remove  obstructions  of  the  easement  as  a  nuisance;  Schmoele  v. 
Betz,  212  Pa.  38,  108  Am.  St.  Rep.  845,  61  Atl.  525,  holding  a  tenant  for  years  in 
possession  might  maintain  an  action  in  equity  to  protect  his  easement  in  an 
alley  on  the  premises;  Robinson  v.  Hillman.  36  App.  D.  C.  251,  holding  that  one 
rightfully  in  possession  of  premises  to  which  an  easement  is  appurtenant  is  en- 
titled to  damages  for  its  abridgment. 

1  L.  R.  A.  289,  WRIGHT  v.  BANK  OF  THE  METROPOLIS,   110  N.  Y.  237, 

G  Am.  St.  Rep.  536,  18  N.  E.  79. 
Measnre    of   damages    for   conversion    of  stock. 

Cited  in  Burhorn  v.  Lockwood,  71  App.  Div.  303,  75  N.  Y.  Supp.  828;  Citizens' 
Street  R.  Co.  v.  Robbins,  144  Ind.  684,  52  N.  E.  916;  Galigher  v.  Jones,  129  U.  S. 
202,  32  L.  ed.  661,  9  Sup.  Ct.  Rep.  335;  Griggs  v.  Day,  158  N.  Y.  22,  52  N.  E.  692; 
Minor  v.  Beveridge,  141  N.  Y.  403,  38  Am.  St.  Rep.  804,  36  N.  E.  404;  McKinley 
v.  Williams,  20  C.  C.  A.  321,  36  U.  S.  App.  749,  74  Fed.  103,— all  holding  highest 
price  of  stock  converted,  within  reasonable  time  after  conversion,  measure  of 
damages;  Smith  v.  Savin,  141  N.  Y.  327,  36  N.  E.  338,  holding  highest  price 
reached  by  stock  illegally  sold  by  one  to  whom  pledgee  pledged  same,  deducting 
debt  due  to  last  pledgee  from  his  pledgeor,  measure  of  damages;  Hubbell  v. 
Blandy,  87  Mich.  216,  24  Am.  St.  Rep.  154,  49  N.  W.  502,  raising,  without 
deciding,  question  whether  price  of  stock  at  time  of  notice  of  conversion  is 
measure  of  damages;  Kilpa trick  v.  Dean,  15  Daly,  196,  4  N.  Y.  Supp.  708,  rais- 
ing, without  deciding,  question  as  to  measure  of  damages  for  conversion  of  coffee; 
Langford  v.  Rivinus,  33  L.  R.  A.  252,  footnote,  p.  250,  21  C.  C.  A.  581,  45  U.  S. 
App.  79,  75  Fed.  959,  holding  actual  value  of  judgment  at  time  of  conversion 
measure  of  damages;  Pickert  v.  Rugg,  1  N.  D.  234,  46  N.  W.  446,  construing 
strictly  statute  making  highest  market  price  between  conversion  and  verdict 
measure  of  damages,  where  action  prosecuted  with  reasonable  diligence:  Marshall 
v.  Ferguson,  94  Mo.  App.  180,  67  S.  W.  935,  holding  loss  not  preventable  by 
reasonable  precautions,  measure  of  damages  for  agent's  misconduct;  Saxe  v. 
Penokee  Lumber  Co.  11  App.  Div.  295,  42  N.  Y.  Supp.  69,  and  Watson  v.  Kirby, 
112  Ala.  446,  20  So.  624,  both  holding  proximate  or  necessary  loss  from  breach 
of  contract  as  measure  of  damages;  Lovell  v.  Shea,  28  Jones  &  S.  418,  18  N.  Y. 
Supp.  193,  holding  special  value  of  stereotyped  plates  to  owner's  business,  measure 
of  damages  for  conversion ;  Briggs  v.  Jones,  8  Misc.  263,  28  N.  Y.  Supp.  709, 
holding  measure  of  damages  applied  by  referee;  Hurt  v.  Miller,  120  App.  Div. 
837,  105  N.  Y.  Supp.  775,  holding  a  customer  immediately  repudiating  a  sale  of 
stock  by  his  brokers  cannot  measure  his  damages  by  the  highest  market  price 
attained  by  similar  contracts  within  a  period  of  two  weeks  after  the  unauthorized 
sale;  Mullen  v.  J.  J.  Quinlan  &  Co.  195  N.  Y.  115,  24  L.R.A.(N.S.)  514,  87  N.  E. 
1078,  holding  a  recovery  for  the  conversion  of  stock  based  upon  the  highest 
market  prices  for  a  period  covering  two  months  was  proper;  Mclntyre  v.  Whitney, 
139  App.  Div.  559,  124  N.  Y.  Supp.  234,  holding  that  measure  of  damages  is 
value  of  stock  at  time  of  conversion  with  interest,  less  indebtedness  to  broker; 
Keller  v.  Halsey,  130  App.  Div.  604,  115  N.  Y.  Supp.  564;  Wiggin  v.  Federal  Stock 
&  Grain  Co.  77  Conn.  515,  59  Atl.  607, — on  the  measure  of  damages  recoverable 
L.R.A.  Au.  Vol.  I.— 5. 


1  L.K.A.  289]  L.  B.  A.  CASES  AS  AUTHORITIES.  6£ 

for  the  conversion  of  stocks;  Ames  v.  Sutherland,  9  Ont.  L.  Rep.  636,  on  the 
measure  of  damages  for  the  wrongful  conversion  of  stock  as  being  the  highest 
price  paid  on  the  date  of  such  conversion. 

Cited  in  footnote  to  Woods  v.  Nichols,  48  L.  R.  A.  773,  which  holds  damages 
to  vendor  retaining  title  limited  to  balance  due,  less  depreciation  from  authorized 
use. 

Distinguished  in  Barns  v.  Brown,  130  X.  Y.  382,  29  X.  E.  760,  Reversing  55 
Hun,  345,  8  X.  Y.  Supp.  834,  holding  only  nominal  damages  recoverable  for 
breach  of  contract  to  deliver  stock  not  in  the  market,  having  no  actual  or 
market  value;  Rogers  v.  Wiley,  38  X.  Y.  S.  R.  234,  14  X.  Y.  Supp.  622,  holding 
difference  between  price  on  illegal  covering  of  "short"  sale  of  stock  and  price 
at  time  of  order,  to  cover  measure  of  damages. 
Measure  of  damages  for  unauthorized  purchase  or  sale  of  stocks. 

Cited  in  Barber  v.  Ellingwood,  135  App.  Div.  558,  120  X.  Y.  Supp.  947,  on  the 
measure  of  damages  recoverable  for  an  unauthorized  purchase  of  stock;  Barber 
v.  Ellingwood,  137  App.  Div.  713,  122  X.  Y.  Supp.  369,  holding  that  measure  of 
damages  for  unauthorized  sale  of  stock  by  broker  is  difference  between  price 
received  and  highest  price  within  reasonable  time  after  notice  of  sale. 
Appreciation  of  damages  caused  l>y  varying  market. 

Cited  in  Harrison  v.  Craven,  188  Mo.  604,  87  S.  W.  962,  holding  plaintiff  could 
not   recover  increased  cost  of  material   and  labor,   where   defendant   wrongfully 
refused  to  convey  property  where  time  not  of  the  essence  of  their  contract. 
Duty   of   injured   party   to   prevent   unnecessary    damages. 

Cited  in  Colvin  v.  McCormick  Cotton  Oil  Co.  66  fe.  C.  75,  44  S.  E.  380,  holding 
one  breaking  contract  chargeable  only  with  such  damages  as  could  not  have  been 
prevented  by  reasonable  expense  or  exertion;  Ling  v.  Malcom,  77  Conn.  526,  59 
Atl.  698,  on  duty  of  party  injured  by  the  wrongful  conversion  of  stock  to  make 
his  damages  as  small  as  he  reasonably  can;  Emmerich  v.  Chegnay,  46  Misc.  457, 
92  X.  Y.  Supp.  336,  on  necessity  that  person  suffering  damages  by  the  act  of 
another  to  reduce  his  damages  as  much  as  possible. 

Annotation  cited  in  Pittsburg,  J.  E.  &  E.  R.  Co.  v.  Wakefield  Hardware  Co.  143 
X.  C.  57,  55  S.  E.  422,  on  necessity  that  person  injured  by  another's  act  reduce 
his  damages  as  much  as  possible. 

Cited  in  note  (21  Am.  St.  Rep.  122)  on  duty  to  reduce  damages. 
Performance   of   contract   within    reasonable   time. 

Cited  in  Abbey  v.  Mace,  46  X.  Y.  S.  R.  765,  19  X.  Y.  Supp.  375;   Arthur  v. 
Wright,  57  Hun,  23,  10  X.  Y.  Supp.  368;  Little  v.  Banks,  77  Hun,  516,  29  X.  Y. 
Supp.    87, — holding   contract   specifying   no   time   of   performance   must   be   per- 
formed within  reasonable  time. 
Reasonableness   of  time. 

Cited  in  Burnham  v.  Lawson,  118  App.  Div.  392,  103  X.  Y.  Supp.  482,  holding 
a  delay  of  twelve  days  in  repudiating  a  wrongful  sale  of  stock  by  broker  was  not 
an  unreasonable  time  where  owner  was  not  apprised  of  all  the  facts;  Cohen  v. 
Xew  York,  204  X.  Y.  427,  39  L.R.A.(X.S.)  985,  97  X.  E.  866,  holding  that  four 
hours  is  not  lapse  of  reasonable  time  so  as  to  charge  city  with  negligence  in 
repair  of  defect  in  street  from  overflow  of  lake  in  park  caused  by  unprecedented 
rainstorm. 
Questions  for  court. 

Cited  in  Dimock  v.  United  States  Xat.  Bank,  55  X.  J.  L.  303,  39  Am.  St.  Rep. 
643,  25  Atl.  926,  holding  reasonable  time  question  of  law.  where  facts  undis- 
puted; Carney  v.  Xew  York  L.  Ins.  Co.  162  X.  Y.  455,  49  L.  R.  A.  475,  76  Am. 
St.  Rep.  347,  57  X.  E.  78,  holding  reasonableness  on  undisputed  facts  of  contract 


67  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  293 

under  by-law,  for  court;  O'Connor  v.  New  York,  16  Daly,  60,  8  N.  Y.  Supp.  530r 
holding  question  of  reasonable  time  for  cleaning  walks  is  for  court,  where  fact* 
undisputed;  Brown  v.  McBride,  24  Misc.  236,  52  N.  Y.  Supp.  620,  holding: 
decision  of  fact  for  court  where  evidence  undisputed,  and  different  inferences  not 
reasonably  to  be  drawn  therefrom ;  Wyantskill  Knitting  Co.  v.  Murray,  90  Hunr 
557,  36  N.  Y.  Supp.  26,  holding  question  of  reasonable  time  to  remove  goods  fron* 
wharf,  where  facts  undisputed,  for  court;  Flagler  v.  Hearst,  62  App.  Div.  27 r 
70  N.  Y.  Supp.  956,  holding  question  of  conversion  for  court,  facts  being  undis- 
puted; O'Dell  v.  Hatfield,  40  Misc.  14,  81  X.  Y.  Supp.  158,  holding  question  of. 
probable  cause  in  action  for  malicious  prosecution,  one  for  court;  Langsner  v. 
German  Alliance  Ins.  Co.  67  Misc.  412,  123  N.  Y.  Supp.  144;  McCarty  v.  Natural 
Carbonic  Gas  Co.  189  N.  Y.  55,  13  L.R.A. (N.S.)  471,  81  N.  E.  549,  12  A.  &  E, 
Ann.  Cas.  840  (dissenting  opinion)  ;  Timlan  v.  Dil worth,  76  N.  J.  L.  572,  71  AtL 
33, — or.  what  constitutes  a  reasonable  time  as  being  a  question  for  the  court. 

1  L.  R.  A.  293,  PEOPLE  v.  KING,  110  N.  Y.  418,  6  Am.  St.  Rep.  389,  18  N.  E.  245. 
Scope  of  police  povrer, 

Cited  in  People  v.  Budd,  117  N.  Y.  11,  5  L.  R.  A.  564,  15  Am.  St.  Rep.  460,  22 
N.  E.  670  (distinguished  in  dissenting  opinion),  and  Budd  v.  New  York,  143 
I  .  S.  531,  36  L.  ed.  251,  4  Inters.  Com.  Rep.  45,  12  Sup.  Ct.  Rep.  468,  both  hold- 
ing statute  fixing  maximum  grain  elevator  charges  within  police  power;  People 
ex  rel.  Kemmler  v.  Durston,  119  N.  Y.  577..  7  L.  R.  A.  716,  16  Am.  St.  Rep.  859, 
24  X.  E.  6,  holding  statute  inflicting  death  punishment  by  electricity  valid; 
People  v.  Ewer,  141  N.  Y.  132.  25  L.  R.  A.  797,  38  Am.  St.  Rep.  788,  36  N.  E.  4, 
holding  statute  prohibiting  employment  or  exhibition  of  girls  under  fourteen 
a-  dancers,  or  in  theatrical  exhibition,  legitimate  legislation;  People  v.  Lochnerr 
177  X.  Y.  157,  69  N.  E.  373.  upholding  constitutionality  of  act  limiting  hours  of 
labor  in  bakeries;  Viemeister  v.  White.  88  App.  Div.  49,  84  N.  Y.  Supp.  712r 
upholding  constitutionality  of  act  prohibiting  unvaccinated  children  from  attend- 
ing public  schools;  People  v.  Rosenberg.  67  Hun,  57,  60,  22  X.  Y.  Supp.  56r 
holding  prohibition  of  fat  rendering  in  cities,  within  police  power;  New  York 
Bd.  of  Fire  Underwriters  v.  Whipple,  2  App.  Div.  366,  37  X.  Y.  Supp.  712,  holding- 
assessment  of  expense  of  fire  patrol  upon  persons  in  insurance  business,  within 
police  power;  Geneva  v.  Geneva  Teleph.  Co.  30  Misc.  240,  62  N.  Y.  Supp.  172, 
holding  removal  of  telephone  wires  and  conductors  to  underground  conduits,, 
within  police  power;  Grannan  v.  Westchester  Racing  Asso.  153  N.  Y.  461,  47 
N.  E.  896,  Reversing  16  App.  Div.  13,  44  N.  Y.  Supp.  790,  holding  franchise  for 
horse  racing  subject  to  state  regulation;  Buffalo  v.  Collins  Baking  Co.  24  Misc. 
748.  53  N.  Y.  Supp.  968,  holding  ordinance  limiting  weight  of  loaf  of  bread 
irrespective  of  price,  unreasonable  and  void;  State  v.  Schlenker,  112  Iowa,  650r 
51  L.  R.  A.  351,  84  Am.  St.  Rep.  360,  84  N.  W.  698,  holding  state  police  powers 
not  limited  by  U.  S.  Const.  14th  Amend.;  People  ex  rel.  Tyroler  v.  Warden  of  City 
Prison,  157  X.  Y.  147,  43  L.  R.  A.  276,  68  Am.  St.  Rep.  763,  51  N.  E.  1006  (dis- 
senting opinion),  majority  holding  statute  restricting  ticket  brokerage  to  ap- 
pointed agents  of  transportation  companies  transcends  police  powers;  People  v. 
Budd.  7  N.  Y.  Crim.  Rep.  199,  holding  a  statute  fixing  a  maximum  charge  for 
elevating  grain  is  valid  exercise  of  the  police  power;  People  ex  rel.  Annan  v. 
Walsh.  7  X.  Y.  Crim.  Rep.  226  (dissenting  opinion),  on  the  validity  of  the  exercise 
of  the  police  power  by  the  legislature. 

Cited  in  notes  (21  L.R.A.  795)  on  constitutionality  of  statutes  restricting  con- 
tracts and  business;    (62  Am.  St.  Rep.  290)   on  regulation  of  rates. 
Civil  rights. 

Cited  in  Rhone  v.  Loomis,  74  Minn.  203,  77  N.  W.  31,  holding  saloons,  exfst- 


1  L.R.A.  293]  L.  R.  A.  CASES  AS  AUTHORITIES.  68 

ing  under  authority  of  laws,  properly  subject  of  civil  rights  statute;  Plessy  v. 
Ferguson,  163  U.  S.  548,  41  L.  ed.  260,  16  Sup.  Ct.  Rep.  1138,  holding  statute 
requiring  separation  of  white  and  colored  railway  passengers  not  violation  of 
U.  S.  Const.  14th  Amend.;  Burks  v.  Bosso,  81  App.  Div.  532,  81  X.  Y.  Supp.  384, 
holding  bootblacking  stand  at  entrance  of  large  office  building  place  of  "public 
accommodation,"  entitling  colored  man  to  right  to  have  shoes  shined;  Brown  v. 
J.  H.  Bell  Co.  146  Iowa,  99,  27  L.R.A.(N.S.)  410,  123  N.  W.  231,  Ann.  Gas.  1912 
B,  852,  holding  a  concession  at  a  pure  food  show,  in  refusing  to  serve  negroes  at 
his  booth  does  not  violate  any  rights  of  the  negroes;  Collister  v.  Hayman,  ]83 
X.  Y.  257,  1  L.R.A.(X.S.)  1192,  111  Am.  St.  Rep.  740,  76  X.  E.  20,  5  A.  &  E.  Ann. 
Cas.  344,  holding  a  clause  in  a  theatre  ticket  declaring  it  void  if  resold  on  side- 
walk was  valid  and  binding  on  subsequent  purchasers;  Aaron  v.  Ward,  203  X. 
Y.  356,  38  L.R.A.(X.S.)  206,  96  X.  E.  736,  on  right  of  bathhouse  keeper  to  deny 
admission  to  persons;  Cornell  v.  Huber,  102  App.  Div.  293,  92  X.  Y.  Supp.  434, 
holding  a  person  to  whom  innkeeper  has  refused  the  privileges  of  a  guest  may 
maintain  an  action  for  a  breach  of  his  common  law  liability;  Jones  v.  Broadway 
Roller  Rink  Co.  136  Wis.  598,  19  L.R.A.(X.S.)  909,  118  X.  W.  170,  holding 
the  exclusion  of  a  colored  person  from  a  skating  rink  gave  such  person  a  cause 
of  action  for  an  infringement  of  his  civil  rights;  Fulton  Light,  H.  &  P.  Co.  v. 
State,  65  Misc.  289,  121  X.  Y.  Supp.  536;  Wright  v.  Hart,  103  App.  Div.  228, 
93  X.  Y.  Supp.  60  (dissenting  opinion), — on  how  provision  of  Constitution  pro- 
viding that  no  person  shall  be  deprived  "of  life,  liberty  or  property  without 
process  of  law"  is  to  be  construed. 

Cited  in  notes  (9  L.R.A.  589)  on  civil  rights;  guaranty  without  discrimina- 
tion; (1  L.R.A.(X.S.)  1189)  on  right  of  manager  to  impose  restrictions  upon 
admission  to  theater;  (19  L.R.A.(X.S.)  907)  on  what  are  places  of  amusement 
within  civil  rights  acts;  (110  Am.  St.  Rep.  536)  on  law  of  theatres  and  similar 
shows;  (25  Am.  St.  Rep.  876)  on  14th  amendment  as  to  special  privileges,  bur- 
dens and  restrictions  founded  on  race. 

Distinguished  in  Younger  v.  Judah,  111  Mo.  310,  16  L.  R.  A.  561,  footnote,  p. 
558,  33  Am.  St.  Rep.  527,  19  S.  W.  1109,  holding  theater  management,  in  absence 
of  statute,  may  require  colored  patrons  to  sit  in  balcony;  People  ex  rel.  Cisco  v. 
School  Board,  161  X.  Y.  600,  48  L.  R.  A.  114,  56  X.  E.  81,  Affirming  44  App.  Div. 
471,  61  X.  \.  Supp.  330,  holding  that  colored  children  may  be  required  to  attend 
separate  schools,  with  equal  accommodations. 
Constitutionality  of  legislative  enactments. 

Cited  in  People  ex  rel.  Kemmler  v.  Durston,  7  X.  Y.  Grim.  Rep.  466,  holding 
an  act  providing  for  the  infliction  of  the  death  penalty  by  means  of  electric 
current  was  not  in  violation  of  a  provision  of  constitution  forbidding  the  in- 
fliction of  cruel  and  unusual  punishments;  MacMillen  v.  Middletown,  112  App. 
Div.  87,  98  X.  Y.  Supp.  145,  holding  provision  of  charter  relieving  city  from  lia- 
bility for  injury  from  snow  and  ice  on  sidewalks  unless  written  notice  thereof 
is  given  and  there  is  a  failure  to  remove  within  a  reasonable  time  is  uncon- 
stitutional. 
Denial  of  dne  process  of  law. 

Cited  in  Tyler  v.  Lansingburgh,  37  Misc.  605,  76  X.  Y.  Supp.  139,  holding 
deprivation  of  right  of  action  by  statute,  denial;  Williams  v.  Port  Chester,  72 
App.  Div.  523,  76  X.  Y.  Supp.  631,  holding  thirty-day  limitation  on  action  against 
village  for  personal  injuries,  denial ;  Barry  v.  Port  Jervis,  64  App.  Div.  286, 
72  X.  Y.  Supp.  104,  holding  requirement  of  notice  to  village  within  forty-eight 
hours  of  personal  injury,  of  intention  to  sue  and  time  and  place,  denial. 


69  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  296 

Sufficiency  of  Hidictment. 

Cited  in  People  v.  Peck,  67  Hun,  572,  22  X.  Y.  Supp.  576,  holding  indictment 
sufficient  without  stating  circumstances  not  in  statutory  definition :  People  v. 
Loclmer,  73  App.  Div.  121,  76  N.  Y.  Supp.  306,  holding  indictment  for  statutory 
misdemeanor,  which  follows  statutory  definition  and  states  identifying  circum- 
stances, good;  People  v.  Lowndes,  130  N.  Y.  464,  29  N.  E.  751,  holding  indict- 
ment against  nonresident  for  planting  oysters  insufficient  without  allegation  that 
it  was  for  benefit  of  himself  or  other  nonresident;  People  v.  Farrel,  5  Silv.  Sup. 
Ct.  25,  8  N.  Y.  Supp.  230,  holding  charge  of  entry  with  force  and  arms  sufficient 
under  statute  saying  "any  force;"  People  v.  Williams,  92  Hun,  357,  36  X.  Y. 
Supp.  511,  holding  indictment  for  perjury  conveying  meaning  of  words  in  statute 
sufficient;  People  ex  rel.  Hunt  v.  Markell,  22  Misc.  608,  50  N.  Y.  Supp.  766,  hold- 
ing recorder's  certificate  of  conviction,  stating  offense  and  time  and  place  of 
committing  it,  sufficient;  People  ex  rel.  Hunt  v.  Markell,  13  N.  Y.  Crim.  Rep. 
116,  50  N.  Y.  Supp.  766,  holding  a  certificate  of  conviction  of  petit  larceny 
need  not  specify  the  articles  stolen  nor  state  from  whom  they  were  taken; 
People  v.  Farrel,  5  Silv.  Sup.  Ct.  25,  8  N.  Y.  Supp.  230,  holding  an  indictment 
for  forcible  entry  need  not  specify  the  particular  acts  or  means  employed  by 
accused;  People  v.  Lochner,  16  N.  Y.  Crim.  Rep.  522,  76  X.  Y.  Supp.  396;  People 
v.  Peck,  10  X.  Y.  Crim.  Rep.  376,  22  X.  Y.  Supp.  576,— on  it  not  being  necessary 
that  indictment  set  forth  other  circumstances  of  a  crime  than  is  required  by 
statute 

Cited  in  note   (16  Am.  St.  Rep.  30)   on  sufficiency  of  indictment  for  statutory 
offense. 
"Wlint    in   a    public    purpose. 

Cited  in  Sun  Printing  &  Pub.  Asso.  v.  New  York,  8  App.  Div.  272,  40  N.  Y. 
Supp.   607    (dissenting  opinion),  majority  holding  construction  of  rapid  transit 
railroad  within  city  limits,  a  city  purpose. 
Kiiilit    to    compensation    for    property   taken. 

Cited  in  Pape  v.  Xew  York  &  H.  R.  Co.  74  App.  Div.  189,  77  X.  Y.  Supp.  725, 
holding  abutting  owners  entitled  to  compensation  for  taking  of  interest  in  street. 

1  L.  R.  A.  296.  CHAPMAX  v.  ROCHESTER,  110  X.  Y.  273,  6  Am.  St.  Rep.  366, 

18  X.  E.  88. 

N 11  i>n !!<•«•*    and    their    abatement  —  Liability    of    private    individuals    and 
corporations. 

Cited  in  Millhiser  v.  Willard,  96  Iowa,  330,  65  N.  W.  325,  abating  rendering 
establishment  offensive  to  adjacent  owners,  though  general  public  similarly  af- 
fected; Trevett  v.  Prison  Asso.  98  Va.  338,  50  L.  R.  A.  566,  81  Am.  St.  Rep.  727, 
36  S.  E.  373,  holding  prison  association  liable  for  discharging  sewage  into  stream 
used  for  domestic  purposes  and  watering  stock;  Benscoter  v.  Huntington  Valley 
Camp  Meeting  Asso.  10  Kulp,  358,  holding  one  draining  privy  into  stream  liable 
for  damages  to  lower  proprietor;  Mann  v.  Willey,  51  App.  Div.  170,  64  X.  Y. 
Supp.  589,  holding  lower  owner  entitled  to  prevent  discharge  of  sewage  render- 
ing water  unfit  for  domestic  purposes,  though  stream  not  yet  used  therefor; 
Filson  v.  Crawford.  23  X.  Y.  S.  R.  3b6,  5  X.  Y.  Supp.  884,  holding  injunction 
against  livery  stable  not  prevented  by  previous  existence  of  other  stable;  Mae- 
Namara  v.  Taft,  196  Mass.  601,  13  L.R.A.(X.S.)  1045,  83  X.  E.  310:  Parker 
v.  American  Woolen  Co.  195  Mass.  601,  10  L.R.A. (X.S.)  586,  81  X.  E.  468,— hold- 
ing an  owner  of  land  on  a  natural  stream  may  enjoin  an  owner  above  him  from 
discharging  noxious  substances  into  where  it  renders  the  water  unfit  for  use. 

Cited  in  footnotes  to  Price  v.  Oakfield  Highland  Creamery  Co.  24  L.   R.  A. 


1  L.R.A.  296]  L.  R.  A.  CASES  AS  AUTHORITIES.  70 

333,  which  authorizes  injunction  against  allowing  filth  from  creamery  to  flow 
on  adjoining  premises;  Barnard  v.  Shirley,  24  L.  R.  A.  568,  which  holds  owner 
of  artesian  well  entitled  to  permit  water,  after  use  by  patients  for  bathing,  to 
flow  into  natural  watercourse  which  is  only  practicable  outlet;  Barrett  v.  Mt. 
-Greenwood  Cemetery  Asso.  31  L.  R.  A.  109,  which  authorizes  injunction  against 
connecting  cemetery  drain  with  spring  used  for  domestic  purposes ;  Cohen  v. 
New  York,  4  L.  R.  A.  406,  which  holds  storing  of  wagon  in  street,  though  under 
license  from  city,  a  nuisance. 

Cited  in  notes    (13  L.  R.  A.   117)    on  pollution  of  waters;    (7  L.  R.  A.  457; 
12  L.R.A.   577;    13  L.R.A.   117)    on   damages   for  pollution   of  water  of  stream; 
il  Eng.  Rul.  Cas.  485)   on  liability  to  indictment  or  injunction  of  public  service 
corporation  exceeding  its  powers  in  creating  nuisances. 
Liability  of   municipal    corporations   as  to  discharge   of  seirng-e. 

Cited  in  Schriver  v.  Johnstown,  54  N.  Y.  S.  R.  573,  24  N.  Y.  Supp.  1083.  hold- 
ing village  liable  for  discharge  of  sewage  on  private  property;  Gillett  v.  Kinder- 
hook,  77  Hun,  605,  28  N.  Y.  Supp.  1044,  holding  village  liable  for  negligent  dis- 
charge of  sewage  and  surface  waters  on  private  lands,  injuring  crops;  Xe\v  York 
•C.  &  H.  R.  R.  Co.  v.  Rochester,  127  N.  Y.  594,  28  N.  E.  416,  holding  owner  en- 
titled to  enjoin  city  from  discharging  sewage  on  private  lands;  Hooker  v.  Roches- 
ter, 126  N.  Y.  635,  4  Silv.  Ct.  App.  376,  26  N.  E.  1043,  holding  right  to  injunction 
against  discharge  of  sewage  follows  from  continuing  character  of  injury;  Moody 
v.  Saratoga  Springs,  17  App.  Div.  209,  45  N.  Y.  Supp.  365,  holding  village  liable 
to  owner  of  premises  near  creek  into  which  extension  of  village  sewer  discharged; 
Butler  v.  Edgewater,  2  Silv.  Sup.  Ct.  4,  25  N.  Y.  S.  R.  316,  6  N.  Y.  Supp.  174. 
"holding  village  not  entitled  to  destroy  natural  watercourse  by  discharging  se\vagc 
therein;  Stoddard  v.  Saratoga  Springs,  127  N.  Y.  268,  27  N.  E.  1030,  holding 
village  liable  for  improper  location  of  sewer  outlet;  Carmichael  v.  Texarkana,  94 
Fed.  571,  holding  city  liable  for  discharging  sewage  into  stream  through  which  it 
is  deposited  on  private  lands;  Winchell  v.  Waukesha,  110  Wis.  110,  84  Am.  St. 
Rep.  902,  85  N.  W.  668,  holding  pollution  of  navigable  stream  creating  public  nui- 
sance detrimental  to  riparian  owner  not  authorized  by  authority  to  construct  sewer  : 
Mansfield  v.  Balliett,  65  Ohio  St.  474,  58  L.  R.  A.  636,  63  N.  E.  86,  holding  city  liabln 
for  dicharging  sewage  into  natural  watercourses,  creating  nuisance  specially  in- 
jurious to  lower  proprietor;  Nolan  v.  Xew  Britain,  69  Conn.  678,  38  Atl.  703, 
holding  city  liable  for  discharging  sewage  in  stream  rendering  it  unfit  for  do- 
mestic purposes  and  watering  stock;  Platt  Bros.  v.  Waterbury,  72  Conn.  552,  48 
L.  R.  A.  705,  77  Am.  St.  Rep.  335,  45  Atl.  154,  holding  legislature  has  no  power 
to  authorize  city  to  discharge  sewage  into  stream  without  compensating  lower 
proprietors;  Butler  v.  White  Plains,  59  App.  Div.  36,  69  N.  Y.  Supp.  193.  enjoin- 
ing village  from  increasing  pollution  of  stream  by  sewage,  although  not  yet  used 
for  domestic  purposes ;  Sammons  v.  Gloversville,  34  Misc.  460,  70  N.  Y.  Supp. 
•284,  restraining  city  from  polluting  with  sewage,  stream  polluted  by  others  also; 
Sammons  v.  Gloversville,  81  App.  Div.  334,  81  N.  Y.  Supp.  466,  holding  owner  of 
land  on  creek  9  miles  below  city  entitled  to  enjoin  city  from  pollution  of  stream : 
Donovan  v.  Royal,  26  Tex.  Civ.  App.  249,  63  S.  W.  1054,  holding  that  municipal 
•corporation  may  be  enjoined  from  polluting  stream  with  sewage;  Fonda  v. 
Sharon  Springs,  70  Misc.  104,  128  N.  Y.  Supp.  147,  holding  village  liable  for  dis- 
charge of  sewage  into  creek  rendering  it  unfit  for  cattle  to  drink;  Markwardt  v. 
Guthrie,  18  Okla.  39,  9  L.R.A.(N.S.)  1153,  90  Pac.  26,  11  A.  &  E.  Ann.  Cas.  581, 
holding  a  riparian  owner  may  maintain  an  action  against  a  municipal  corpora- 
tion for  damages  caused  by  the  discharge  of  sewage  into  stream  so  as  to  destroy 
its  use. 

Cited  in  footnote  to  Huffmire  v.  Brooklyn,  48  L.  R.  A.  421,  which  holds  city 


71  L.  R,  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  29G 

liable    for    destruction    of   oysters   by   discharge    from    sewer    constructed   under 
legislative  authority. 

Cited  in  notes  (41  L.  R.  A.  753)  on  correlative  rights  of  upper  and  lower 
proprietors  as  to  use  of  stream  for  sewage;  (48  L.  R.  A.  697)  on  right  of  mu- 
nicipality to  drain  sewage  into  waters;  (7  L.  R.  A.  465)  on  damages  recoverable 
for  negligent  construction  of  sewer. 

Distinguished  in   concurring  opinion   in  Sayre  v.  Newark,  60  N.  J.   Eq.   371, 
48  L.  R.  A.  726,  83  Am.  St.  Rep.  629,  45  Atl.  985,  Reversing  58  N.  J.  Eq.  147, 
42  Atl.  1068,  majority  holding  legislature  empowered  to  authorize  municipalities 
to  use  tidal  streams  as  sewer  outlets. 
As  to  other  nuisances. 

Cited  in  Wilson  v.  Boise  City,  6  Idaho,  402,  55  Pac.  887,  holding  municipality 
liable  for  damages  caused  by  flooding  lands  by  waters  from  artificial  waterway; 
Little  v.  Lenoir,  151  N.  C.  418,  66  S.  E.  337;  Somerset  Water,  Light  &  Traction 
v.  Hyde,  129  Ky.  406,  111  S.  W.  1005,— on  right  of  private  person  to  restrain 
a  municipal  corporation  from  maintaining  a  nuisance. 

Cited  in  footnotes  to  Protestant  Episcopal  Church  v.  Anamosa,  2  L.  R.  A.  607, 
which  holds  city  liable  for  damage  from  grading  street  without  ordinance  author- 
izing same;  Miles  v.  Worcester,  13  L.  R.  A.  841,  which  holds  city  liable  for  en- 
croachment on  private  property  by  retaining  wall  of  school  yard,  though  built 
solely  for  public  use;  Long  v.  Elberton,  46  L.  R.  A.  428,  which  holds  city  liable 
for  nuisance  from  negligently  keeping  prison,  but  not  for  its  erection ;  Snider  v. 
St.  Paul,  18  L.  R.  A.  151,  which  holds  city  not  liable  in  private  action  for  negli- 
gence of  agents  in  constructing  city  hall ;  Duncan  v.  Lynchburg,  48  L.  R.  A. 
331.  which  holds  city  not  liable  for  pollution  of  stream  by  employees  in  operating 
(]iiarry  outside  city  limits;  Hughes  v.  Auburn,  46  L.  R.  A.  636,  which  holds 
city  not  liable  for  disease  caused  by  negligence  as  to  sewer  system. 

Cited  in  notes  (7  L.  R.  A.  157)  on  liability  of  municipality  for  creating  nui- 
sance; (4  L.  R.  A.  594)  on  municipal  liability  for  overflowing  private  lands; 
(19  L.  R.  A.  454)  on  distinction  between  public  and  private  functions  of  mu- 
nicipalities in  respect  to  liability  for  negligence;  (84  Am.  St.  Rep.  917,  925)  on 
extent  of  municipal  right  to  pollute  waters. 

Distinguished  in  Danaher  v.  Brooklyn,  51  Hun.  571,  4  N.  Y.  Supp.  312,  holding 
city  not  liable  for  death  from  unwholesome  water  in  public  well  before  notice 
of  impurity  from  health   department. 
Joinder  of   actions. 

Cited  in  Downing  v.  Oskaloosa,  86  Iowa,  356,  53  N.  W.  256,  holding  abatement 
of  permanent  nuisance  in  action  at  law  in  which  damages  allowed,  discretionary 
with  court. 
For  injury  to  person  and  to  property. 

Cited  in  Rosenheimer  v.  Standard  Gaslight  Co.  36  App.  Div.  10,  55  N.  Y.  Supp. 
192,  holding  gas  company  liable  to  adjoining  owner  for  diminution  in  rental 
value  of  property  and  impairment  of  health;  Lamming  v.  Galusha,  135  N.  Y.  244, 
31  N.  E.  1024,  authorizing  joinder  with  action  to  enjoin  operation  of  railroad 
in  street,  of  action  for  personal  injuries  from  such  operation. 

Cited  in  note    (50  L.  R.  A.   163)    on  whether  injuries  both  to  person  and  to 
property  but  one,  or  more  than  one,  cause  of  action. 
Estoppel   by   acquiescence. 

Cited  in  Knox  v.  Metropolitan  Elev.  R.  Co.  58  Hun,  521,  12  N.  Y.  Supp.  848. 
and  Galway  v.  Metropolitan  Elev.  R.  Co.  128  X.  Y.  153,  13  L.  R.  A.  795,  28  X.  K. 
479,  holding  injunction  against  operation  of  elevated  railroad  not  barred  by 
mere  acquiescence;  Missouri  v.  Illinois,  180  U.  S.  247,  45  L.  ed.  514,  21  Sup. 


1  L.R.A.  296]  L.  R.  A.  CASES  AS  AUTHORITIES.  72 

Ct.  Rep.  331,  holding  state  not  barred,  by  acquiescing  in  construction  of  drainage 
canal  in  other  state,  from  preventing  discharge  of  sewage  to  its  detriment; 
Syracuse  Solar  Salt  Co.  v.  Rome,  W.  &  O.  R.  Co.  67  Hun,  165,  22  N.  Y.  Supp.  321, 
holding  owner  not  estopped  to  claim  land  on  which  railroad  constructed  without 
license,  as  against  purchaser  on  foreclosure  of  mortgage. 

Cited  in  footnote  to  Meiners  v.  Frederick  Miller  Brewing  Co.  10  L.  R.  A.  586, 
which  holds  defense  of  prescription  unavailable  in  private  action  to  abate  public 
nuisance. 

i  L.  R.  A.  299,  MCCLELLAND  v.  NORFOLK  SOUTHERN  R.  co.  no  N.  Y.  469, 

6  Am.  St.  Rep.  397,  18  N.  E.  237. 
Dependence  of  coupons  upon  bonds. 

Cited  in  Batchelder  v.  Council  Grove  Water  Co.  131  N.  Y.  47,  29  N.  E.  801, 
holding  principal  of  bonds  not  due  on  nonpayment  of  interest  coupons,  except  as 
provided  in  mortgage;  Bailey  v.  Buchanan  County,  115  N.  Y.  301,  6  L.  R.  A.  564, 
22  N.  E.  155,  holding  coupons  in  possession  of  bondholder  serve  no  independent 
purpose;  Haskins  v.  Albany  &  H.  R.  &  Power  Co.  74  App.  Div.  32,  76  N.  Y. 
Supp.  667,  holding  detached  coupons  transferable  by  delivery,  not  subject  to 
conditions  of  bond  and  mortgage;  Hudson  Valley  R.  Co.  v.  O'Connor,  95  App.  Div. 

10,  88  N.  Y.  Supp.  742,  on  coupons  as  affected  by  detachment  from  the  bonds; 
Quackenbush   v.   Mapes,   123   App.  Div.   246,  107   N.  Y.   Supp.   1047,  on   interest 
coupons  as  partaking  of  the  nature  of  the  bond. 

—•  Limitation  of  action  on  coupons. 

Cited  in  Smith  v.  Greenwich,  80  Hun,  120,  30  N.  Y.  Supp.  56,  holding  six  years' 
statute  applies  to  actions  on  coupons  of  void  bonds;  Kelly  v.  Forty-second  Street, 
M.  &  St.  N.  Ave.  R.  Co.  37  App.  Div.  508,  55  N.  Y.  Supp.   1096,  holding  twenty 
years'  statute  applies  to  actions  on  coupons  of  sealed  bonds. 
Negotiable  instruments. 

Cited  in  Atlantic  Trust  Co.  v.  Crystal  Water  Co.  72  App.  Div.  540,  76  N.  Y. 
Supp.  647,  holding  bonds  secured  by  mortgage  negotiable;  Haskins  v.  Albany  & 

11.  R.  &  Power  Co.  74  App.  Div.  32,  76  N.  Y.  Supp.  667,  holding  provision  in 
mortgage  that  coupons  shall  be  transferable  by  delivery  makes  thorn  negotiable; 
Rolston  v.  Central  Park,  N.  &  E.  River  R.  Co.  21  Misc.  441,  47  N.  Y.  Supp.  650, 
upholding  action  on  lost  coupon  in  giving  undertaking  required  in  case  of  lost 
negotiable  instruments;   D'Esterre  v.  Brooklyn,  90  Fed.  589,  holding  that  bond- 
holders take  municipal  bonds  with  knowledge  of  statute  as  to  their  negotiability; 
Brooke  v.  Struthers,  110  Mich.  571,  35  L.  R.  A.  541,  68  N.  W.  272,  holding  nego- 
tiability of  note  destroyed  by  provision  in  accompanying  mortgage  for  payment 
of  taxes  by  mortgagor;  National  Salt  Co.  v.  Ingraham,  58  C.  C.  A.  361,  122  Fed. 
45,  holding  transferee  of  certificate  of  indebtedness,  negotiable  in  form,  charged 
with  notice  of  agreement  referred  to  therein;  National  Salt  Co.  v.  Ingraham,  74 
C.  C.  A.  479,  143  Fed.  808,  holding  the  negotiability  of  certificates  of  indebted- 
ness of  a  corporation  containing  an  unconditional  promise  to  pay  is  not  impaired 
by  the  fact  that  by  terms  maker  may  pay  them  before  maturity;  Klots  Throw- 
ing Co.  v.  Manufacturers'  Commercial  Co.  30  L.R.A.(N.S.)   43,  103  C.  C.  A.  305. 
179  Fed.  815,  holding  that  note,  on  its  face,  subject  to  terms  of  contract  between 
maker  and  payee,  is  not  negotiable. 

Cited  in  footnotes  to  Internal  Improvement  Fund  v.  Lewis,  26  L.  R.  A.  743, 
which  holds  coupons  payable  to  bearer  may  be  negotiated  separately  from  bond 

Distinguished  in  Guilford  v.  Minneaoplis,  S.  Ste.  M.  &  A.  R,  Co.  48  Minn.  572. 
31  Am.  St.  Rep.  694,  51  N.  W.  658,  holding  general  recital  in  bond  that  it  is 
secured  by  trust  deed  does  not  destroy  negotiability;  Hibbs  v.  Brown,  112  App,. 


73  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  303 

Div.  221,  98  N.  Y.  Supp.  353,  holding  bonds  of  joint  stock  association  on  which 
stockholders  are  not  liable  are  not  non-negotiable. 
Waiver  of   right   to   sue. 

Cited  in   Boley   v.   Lake   Street  Elev.  R.  Co.   64  111.  App.   312,  holding  bond- 
holders may  vest  right  to  sue,  on  default,  in  trustee. 
Effect   of   recitals   In    instruments. 

Distinguished  in  Monks  v.  Provident  Inst.  for  Savings,  64  N.  J.  L.  89,  44  Atl. 
968,  holding  that  whether  recital  in  deed  shall  have  effect  of  covenant  depends 
on  intent  of  parties. 

1  L.  R.  A.  303,  HAYES  v.  MASSACHUSETTS  MUT.  L.  INS.  CO.  125  111.  626, 

18  N.  E.  322. 
Joinder  of  counts   in   case  and    trover. 

Cited  in  Mutual  L.  Ins.  Co.  v.  Allen,  212  111.  136,  72  N.  E.  200,  Affirming  113 
111.  App.  97,  on  it  being  permissible  to  join  counts  in  trover  and  in  case. 
Trover  for  conversion  of  policy. 

Cited  in  Fraternal  Army  of  America  v.  Evans,  114  111.  App.  587,  holding  trover 
•will  lie  against  an  insurance  company  retaining  possession  of  a  policy  wrongfully 
obtained  by  them. 
Powers  of  trustees  and  guardians. 

Cited  in  Montgomery  v.  Rauer,  125  Cal.  231,  57  Pac.  894,  holding  settlement 
between  guardian  and  third  person  not  binding  on  ward,  unless  fair  and  free  from 
mistake;  Manion  v.  Ohio  Valley  R.  Co.  99  Ky.  506,  36  S.  W.  530,  holding  guardian 
authorized  to  compromise  claim  for  personal  injuries  to  ward ;  Schmidt  v.  Shaver, 
196  111.  115,  89  Am.  St.  Rep.  250,  63  N.  E.  655,  Reversing  98  111.  App.  425,  holding 
probate  court  may  authorize  guardian  to  sell  uncollectible  judgment  for  actual 
value;  Knights  Templars  &  M.  Life  I.  Co.  v.'Crayton,  209  111.  558,  70  N.  E.  J066, 
Affirming  110  111.  App.  656,  holding  guardian  without  power,  unless  authorized 
by  court,  to  release  demand  due  ward;  Loyal  Americans  v.  Edwards,  106  111.  App. 
402,  denying  power  of  guardian,  without  court  order,  to  surrender  money  of 
ward,  recovered  from  insurance  company;  Hunting  v.  Safford,  183  Mass.  160. 
66  N.  E.  642,,  holding  that  trustees  could  not  avail  themselves  of  fraudulent  pay- 
ment to  estate  of  infant  receiving  no  benefit  from  it;  Bunnell  v.  Bunnell,  111  Ky. 
581,  64  S.  W.  420,  holding  a  compromise  by  guardian  on  behalf  of  ward  is  not 
binding  on  infant  where  it  surrenders  infant's  title  to  property  and  provides  for 
its  division  among  persons  having  no  semblance  of  title. 

Cited  in  notes  (35  L.R.A.  (X.S.)  1124)  on  right  of  guardian  to  surrender  policy 
in  favor  of  ward;  (89  Am.  St.  Rep.  290,  291)  on  common  law  powers  of  guardians. 

Distinguished  in  Maclay  v.  Equitable  Life  Assur.  Soc.  152  U.  S.  505,  38  L.  ed. 
532,   14  Sup.  Ct.  Rep.  678,  holding  guardian  authorized  to  surrender  policy  on 
third  person's  life  on  receiving  surrender  value. 
Conditions    precedent    to    action    of   trover. 

Cited  in  Star  Accident  Co.  v.  Sibley,  57  111.  App.  322,  holding  it  unnecessary 
to  tender  back  money  received  on  settlement  of  a  claim  induced  by  fraud  before 
suing  for  balance;  Michigan  Mut.  L.  Ins.  Co.  v.  Naugle,  130  Ind.  86,  29  X.  E. 
393,  holding  one  fraudulently  induced  to  settle  policy  entitled  to  sue  for  balanc« 
without  returning  amount  received. 
—  Necessity  of  demand. 

Cited  in  Sehnert  v.  Koenig,  99  111.  App.  514,  holding  demand  necessary  before 
bringing  trover  against  one  who  came  rightfully  into  possession;  Metcalfe  v. 
Dickman.  43  111.  App.  286,  holding  demand  necessary  before  bringing  trover 
against  bona  fide  purchaser  from  apparent  owner  in  possession;  Hoff  v. 


1  L.R.A.  303]  L.  R.  A.  CASES  AS  AUTHORITIES.  74 

Coumeight,  14  Misc.  315,  35  X.  Y.  Supp.  1052,  holding  allegation  of  refusal  after 
due  demand  necessary,  in  absence  of  allegation  that  possession  tortiously  ac- 
quired; Camp  v.  Unger,  54  111.  App.  655,  holding  demand  unnecessary  after  actual 
conversion;  McConnell  v.  Hamp,  147  111.  App.  59,  on  a  demand  as  not  being 
essential  to  action  of  trover. 

Cited  in  note  (9  L.  R.  A.  817)  on  necessity  of  demand  before  bringing  trover. 
Measure  of  damages  for  conversion. 

Cited  in  Olds  v.  Chicago  Open  Bd.  of  Trade,  33  111.  App.  448,  holding  damages 
for  conversion  of  intrinsically  valueless  paper,  which  is  evidence  of  title  to 
valuable  interest,  the  value  of  such  interest. 

Cited  in  footnotes  to  Griggs  v.  Day,  18  L.  R.  A.  120,  which  holds  pledge  con- 
verting notes  liable  for  their  actual  value  only;  Wright  v.  Bank  of  the  Metrop 
olis,   1  L.  R.  A.  289,  which  holds  cost  of  repurchasing,  within  reasonable  time, 
pledged  stock  converted,  the  measure  of  damages;  Woods  v.  Nichols,  48  L.  R.  A. 
773,   which   limits   conditional   seller's  damages   for   conversion,   to   amount   due, 
less  depreciation  in  value  from  authorized  use;  Langford  v.  Rivinus,  33  L.  R.  A. 
250,  which  holds  measure  of  damages  for  conversion  of  judgment  its  value  at 
time  of  conversion. 
Necessity  as  to  finding-  of  facts  on   rev ersal. 

Cited  in  Siddall  v.  Jansen.  143  111.  541,  30  X.  E.  358,  requiring  appellate  court 
to  recite  in  judgment  facts  found  differently  from  trial  court;  Hawk  v.  Chicago, 
B.  &  X.  R.  Co.  138  111.  40,  27  N.  E.  450;  Sellers  v.  Thomas,  185  111.  390,  57 
N.  E.  10;  Coverdale  v.  Royal  Arcanum,  193  111.  97,  61  X.  E.  915, —  holding  that 
appellate  court  will  be  presumed  to  have  found  same  as  trial  court  on  facts  as  to 
which  recital  silent;  Caywood  v.  Farrell,  175  111.  482,  51  N.  E.  775,  requiring 
only  ultimate  facts  to  be  found  by  appellate  court  on  finding  differently  from 
trial  court;  Iroquois  Furnace  Co.  v.,  Elphicke,  200  111.  418,  65  X.  E.  784,  holding 
no  finding  required  by  appellate  court  as  to  uncontroverted  fact  on  reversing 
judgment  below;  Hogan  v.  Chicago,  168  111.  556,  48  N.  E.  210,  refusing  to  hold 
finding  of  facts  by  appellate  court  different  from  that  of  trial  court ;  Postal 
Teleg.  Cable  Co.  v.  Lathrop,  131  111.  580,  7  L.  R.  A.  475,  19  Am.  St.  Rep.  55, 
23  N.  E.  583,  refusing  to  examine  evidence  to  determine  whether  facts  correctly 
found  by  appellate  court;  Seeberger  v.  McCormick,  178  111.  410,  53  N.  E.  340, 
holding  reviewable,  reversal  by  appellate  court  of  judgment  of  trial  court  with- 
out jury,  upon  agreed  facts;  Swisher  v.  Illinois  C.  R.  Co.  182  111.  540,  55  X.  E. 
555  (dissenting  opinion),  to  the  effect  that  finding  by  appellate  court  not  in- 
consistent with  that  below,  so  as  to  justify  reversal. 
Accord  and  satisfaction  by  part  payment. 

Cited  in  Murphy  v.  Halleran,  50  111.  App.  595,  holding  unsealed  release  of 
entire  debt  on  payment  of  part  not  bar  recovery  of  balance ;  Flaningham  v.  Hogue, 
59  111.  App.  318,  conceding  principle  that  unsealed  release  in  full  of  judgment 
on  payment  of  part  does  not  bar  recovery  of  balance;  Martin  v.  White,  40  111. 
App.  290,  holding  acceptance  of  minimum  rent  not  bar  recovery  of  additional 
rent  provided  for  in  lease;  Pusheck  v.  Frances  E.  Willard  X.  T.  H.  Asso.  94  111. 
App.  198,  holding  acceptance  in  full  of  less  rent  than  due  does  not  bar  recovery 
of  balance;  Hart  v.  Strong,  183  111.  355,  55  X.  E.  629,  holding  unenforceable  agree- 
ment to  accept  less  than  due  on  note  because  holder  believed  he  had  over- 
reached maker;  State  Sav.  Loan  &  T.  Co.  v.  Stewart,  65  111.  App.  400,  holding 
right  to  dividend  on  entire  claim  not  lost  by  accepting  dividend  on  claim  as 
reduced  by  collections  on  collateral  securities;  Ostrander  v.  Scott,  161  111.  345, 
43  N.  E.  1089,  holding  use  of  check  reciting  payment  in  full  of  disputed  claim 
prevents  recovery  of  balance;  Tanner  v.  Merrill,  108  Mich.  60,  31  L.  R.  A.  172, 


75  L.  E.  A.  CASES  AS  AlTIHMin  J  Ks.  [1  L.R.A.  309 

62  Am.  St.  Rep.  687,  65  N.  W.  664,  holding  receipt  in  full  on  payment  of  un- 
disputed part  of  claim  after  refusal  to  pay  balance  conclusive;  Bingham  v.  Brown- 
ing. 197  111.  136,  64  N.  E.  317,  Affirming  97  111.  App.  453,  holding  acceptance  of 
draft  for  part  of  disputed  claim  and  signing  of  receipt  in  full  prevents  recovery  of 
balance;  Bostrom  v.  Gibson,  111  111.  App.  458,  holding  agreement  to  accept  lesser 
sum  than  amount  known  to  be  due,  in  full  satisfaction,  void;  Rauen  v.  Pruden- 
tial Ins.  Co.  329  Iowa,  742,  106  X.  W.  198;  Farmers'  &  M.  Life  Asso.  v.  Caine, 
224  111.  606,  79  X.  E.  956,  Affirming  115  111.  App.  311,— holding  the  acceptance 
by  a  creditor  from  the  debtor  of  a  less  sum  than  the  amount  due  in  satisfaction 
of  a  liquidated  and  undisputed  debt  is  only  a  discharge  of  the  debt  pro  tanto. 

Cited  in  notes  (11  L.  R.  A.  711)  on  payment  of  part  of  debt  as  bar  to  collec- 
tion of  balance;  (20  L.  R.  A.  808)  on  lack  of  consideration  in  accord  and  satis- 
faction by  part  payment;  (11  L.R.A.(X.S.)  1022)  on  part  payment  as  considera- 
tion for  discharge  of  liquidated  and  undisputed  debt;  (100  Am.  St.  Rep.  430> 
on  accord  and  satisfaction. 

Distinguished  in  Golden  v.  Bartlett  Illuminating  Co.  114  Mich.  627.  72  X.  W. 
622,  holding  acceptance  of  check  for  undisputed  part  of  claim  and  signing  receipt 
in  full,  although  without  reading,  bars  further  claim. 
Presumption  as  to  findings  of  fact  by  appellate  court. 

Cited  in  Kantzler  v.  Bensinger,  214  111.  595,  73  X.  E.  874,  holding  it  would  be 
presumed,  where  appellate  court  reversed  lower  court  without  remanding  or 
findings  of  facts,  that  the  reversal  was  for  errors  of  law,  not  that  the  evidence 
was  insufficient  to  support  the  verdict  and  facts  will  be  reviewed  accordingly. 

1  L.  R.  A.  309,  MURPHY  v.  BOLGER  BROS.  60  Vt.  723,  15  Atl.  365. 
Ejectment   for  projections,   overhangs  or   encroachments. 

Approved  in  Johnson  v.  Minnesota  Tribune  Co.  91  Minn.  481,  98  X.  W.  32Ir 
holding  that  ejectment  will  lie  where  base  of  a  front  wall  has  been  extended  over 
the  line  and  plaintiff's  wall  has  been  partly  removed  to  allow  extension  of  orna- 
mental moldings  of  defendant's  building. 

Cited  in  Rasch  v.  Xorth,  99  Wis.  288,  40  L.  R.  A.  578,  67  Am.  St.  Rep.  858r 
74  X.  W.  820,  holding  ejectment  not  maintainable  for  projecting  eaves  by  one 
whose  eaves  are  lower  and  also  project;  Butler  v.  Frontier  Teleph.  Co.  186  X.  Y. 
489,  11  L.R.A.  (X.S.)  922,  116  Am.  St.  Rep.  563,  79  X.  E.  716,  9  A.  &  E.  Ann. 
Cas.  858,  on  projecting  eaves  as  constituting  an  actual  ouster  or  disseisin  suffi- 
cient to  sustain  ejectment;  Butler  v.  Frontier  Teleph.  Co.  109  App.  Div.  219,  95 
X.  Y.  Supp.  684,  on  projection  of  eaves  as  grounds  for  ejectment;  Huber  v. 
Stark,  124  Wis.  362,  109  Am.  St.  Rep.  937,  102  X.  W.  12,  4  A.  &  E.  Ann.  Cas. 
340,  on  equitable  discontinuance  or  trespass  for  damages  as  being  remedy  for 
extending  eaves  or  foundation  stone  not  constituting  an  ouster. 

Cited  in  notes  (13  L.  R.  A.  664)  on  projection  of  eaves,  walls,  etc.,  as  basis  for 
ejectment;  (16  L.  R.  A.  813)  on  estoppel  in  %pats  upon  defendant  as  basis  for 
action  to  recover  real  estate;  (11  L.R.A.(X.S.)  918)  on  ejectment  for  encroach- 
ments under  surface,  or  overhead;  (116  Am.  St.  Rep.  582)  on  maintainability  of 
ejectment  for  projecting  eaves,  cornices,  roofs  or  trees. 
—  For  other  incorporeal  invasions. 

Cited  in  Reynolds  v.  Munch,  100  Minn.  116,  110  X.  W.  368,  holding  that  eject- 
ment will  lie  where  defendant  claims  perpetual  right  of  overflow  on  plaintiff* 
land. 

Cited  in  note  (116  Arc.  St.  Rep.  584)  on  maintainability  of  ejectment  for  over- 
flowing of  lands  by  means  of  dams. 


1  L.K.A.  309]  L.  K.  A.  CASES  AS  AUTHORITIES.  76 

Disseisin    In    space    above    soil. 

Cited  in  Atkins  v.  Pfaffe,  136  Iowa,  733,  114  N.  W.  187,  holding  that  wnere 
owner  has  occupied  house  on  lot  with  understanding  that  he  owned  the  epace 
under  the  eaves  and  the  swing  of  the  shutters  his  occupancy  includes  that  space. 
Title  by  adverse  possession. 

Cited  in  note  (10  L.R.A.  389)  on  ouster  by  cotenant  necessary  to  title  by 
adverse  possession. 

]  L.  R.  A.  311,  SMITH  v.  AYRAULT,  71  Mich.  475,  39  N.  W.  724. 

Contribution. 

Cited  in  footnote  to  Farwell  v.  Becker,  6  L.  R.  A.  400,  which  requires  attach- 
ing creditor  paid  from  goods  wrongfully  seized,  to  contribute  to  damages  in 
trespass  against  other  creditors. 

Cited  in  note  (6  L.  R.  A.  631)  on  contribution  between  wrongdoers. 

1  L.  R,  A.  318,  REIZENSTEIN  v.  MARQUARBT,  75  Iowa,  294,  9  Am.  St.  Rep. 

477,  39  N.  W.  506. 
Statnte  of  limitations  on  demandable  rights. 

Cited  in  Mickel  v.  Walraven,  92  Iowa,  430,  60  N.  W.  633,  holding  unexcused 
failure  of  creditor  to  move  for  eighteen  years  after  recording  of  fraudulent  con- 
veyance, fatal;  Dolon  v.  Davidson,  16  Misc.  319,  39  N.  Y.  Supp.  394,  holding  delay 
of  fourteen  years  in  presenting  check  for  payment,  fatal ;  Blount  v.  Beall,  95  Ga. 
191,  22  S.  E.  52,  holding  bailee's  mere  failure  to  deliver  on  demand  does  not 
set  statute  running;  Bonbright  v.  Bonbright,  123  Iowa,  308,  98  N.  W.  784.  hold- 
ing that  statute  commences  to  run  at  maturity  of  contract,  and  not  at  date  of 
demand  note  given,  but  not  accepted  in  satisfaction. 

Cited  in  notes   (35  L.  ed.  U.  S.  1031)   on  statute  of  limitations  and  lapse  of 
time  as  bar  to  trusts;    (16  Eng.  Rul.  Cas.  215)   on  statute  of  limitations  on  de- 
mandable rights. 
Conversion  by  bailee. 

Cited  in  Austin  v.  Van  Loom,  36  Colo.  199,  85  Pac.  183,  holding  that  statute 
commenced  to  run  in  favor  of  bailee  of  cattle  at  time  he  refused  to  deliver  and 
not  at  time  of  change  of  range  such  change  not  being  a  conversion  in  itself. 

Cited  in  footnote  to  Staub  v.  Kendrick,  6  L.  R.  A.  620,  which  holds  baggage 
transporter  liable  for  negligent  loss  of  articles  in  valise. 

1    L.   R.   A.   320,   STOREY  v.   STOREY,    125   111.   608,   8   Am.   St.   Rep.   417,    18 

N.  E.  329. 
Construction   of   contract. 

Cited  in  People  use  of  Lawrence  County  v.  Adams,  65  111.  App.  287,  holding 
parties  to  salary  contract  to  interpretation  they  themselves  put  upon  it;  Slack 
v.  Knox,  114  111.  App.  447,  on  interpretation  of  parties  as  bearing  on  construction 
of  contract  in  cases  of  doubt;  Slack  v.  Knox,  213  111.  395,  68  L.R.A.  609,  72  N. 
E.  746,  on  the  permissibility  of  construing  a  contract  in  conformance  with  the 
interpretation  placed  thereon  by  the  parties;  Miller  v.  Mowers,  227  111.  401,  81 
N.  E.  420,  holding  that  in  construing  deed  in  case  of  ambiguity,  the  court  may 
consider  the  intent  of  the  parties  gathered  from  attendant  circumstances  of  its 
execution,  if  such  intent  is  consistent  with  language  used. 
Consent  decrees  for  alimony. 

Cited  in  Collier  v.  Collier,  66  111.  App.  485,  holding  terms  and  conditions  of 
payment  of  alimony  may  be  settled  by  agreement  of  parties;  Henderson  v.  Hen- 
derson, 37  Or.  151,  48  L.R.A.  770,  82  Am.  St.  Rep.  741,  60  Pac.  597,  holding  court 


77  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  327 

cannot  modify  consent  decree  if  one  party  objects;  Cavenaugh  v.  Cavenangh, 
]06  111.  App.  211,  holding  consent  decree  binding  on  the  parties;  Whitney  v. 
Whitney  Elevator  &  Warehouse  Co.  106  C.  C.  A.  28,  183  Fed.  681,  holding  that 
wife,  under  divorce  decree  continuing  prior  separation  agreement  for  certain 
monthly  sum  during  her  life,  is  entitled  to  alimony  after  husband's  death; 
Stanfield  v.  Stanfield,  22  Okla.  589,  98  Pac.  334,  holding  court  has  no  jurisdic- 
tion to  modify  alimony  decreed  to  wife  for  fault  of  husband,  where  such  alimony 
is  adjudged  to  wife  in  accordance  with  agreement  of  the  parties  previous  to 
decree  in  absence  of  fraud  or  mistake. 

Cited  in  footnote  to  Sampson  v.  Sampson,  3  L.  R.  A.  349,  which  holds  alimony 
decree  final  after  expiration  of  time  for  new  trial. 

Distinguished  in  Griswold  v.  Griswold,  111  111.  App.  274,  holding  that  consent 
decree  obtained  by  fraud  and  coercion  may  be  set  aside. 
DiselinrRC  of  decree  ns  to  alimony. 

Cited  in  Adams  v.  Storey,  135  111.  453,  11  L.R.A.  792,  25  Am.  St.  Rep.  392, 
26  K  E.  582,  and  Murphy  v.  Moyle,  17  Utah,  121,  70  Am.  St.  Rep.  767,  53  Pac. 
1010,  holding  court's  power  to  enforce  decree  as  to  alimony  not  affected  by 
death  of  husband. 

Cited  in  notes    (102   Am.   St.  Rep.   701;    2   L.R.A.(N.S.)    242)    as   to   whether 
alimony  terminates  on  death  of  husband. 
Effect   of  wife's  remarriage   on. 

Cited   in   Morgan   v.   Lowman,   80   111.   App.   559,   holding   remarriage   of   wife 
absolves  husband  from  payment  of  alimony  thereafter. 
Validity  of  separation  agreement  or  ag-recmeut  for  alimony. 

Cited  in  King  v.  Mollohan,  61  Kan.  690,  60  Pac.  731,  holding  necessary  separa- 
tion agreements  not  against  public  policy;  Stebbins  v.  Morris,  19  Mont.  122. 
47  Pac.  642,  sustaining  separation  agreement  entered  into  without  collusion 
as  incidental  to  divorce  decree  obtained  without  collusion;  Stuckey  v.  Stuckey, 
122  111.  App.  557,  holding  a  contract  as  to  amount  of  alimony  entered  into  before 
decree  of  divorce  has  been  awarded,  having  a  tendency  to  facilitate  divorce  is 
void  as  against  public  policy;  Wilson  v.  Hinman,  182  X.  Y.  414,  2  L.R.A. (N.S.) 
240,  108  Am.  St.  Rep.  820,  75  N.  E.  236;  Whitney  v.  Whitney  Elevator  &  Ware- 
house Co.  180  Fed.  191, — on  the  validity  of  an  agreement  of  the  parties  as  to 
length  of  time  of  continuance  of  payment  of  alimony. 

1  L.  R.  A.  324,  REED  v.  PEOPLE,  125  111.  592,  18  N.  E.  295. 
What  are  banking:  corporations. 

Cited  in  Henderson  Loan  &  R.  E.  Asso.  v.  People,  163  111.  204,  45  N.  E.  141, 
holding  loan  association  authorized  to  receive  deposits,  loan  money,  and  discount 
notes  has  banking  powers;  Sykes  v.  People,  132  111.  41.  23  N.  E.  391,  holding  cor- 
poration authorized  to  receive  deposits  and  discount  notes  subject  to  banking 
law;  MacLaren  v.  State,  141  Wis.  581,  124  N.  W.  667,  holding  that  a  "deposit 
purchase"  department,  receiving  deposits,  giving  pass  books  paying  interest  on 
deposits  and  giving  right  to  depositor  to  withdraw  on  demand  in  money  or  goods, 
is  a  banking  business  under  statute. 
Construction  of  Constitution. 

Cited  in  note  (12  Am.  St.  Rep.  828)  on  construction  of  constitution. 

1  L.  R.  A.  327,  REYNOLDS  v.  SUMNER,   126  111.  58,  9  Am.  St.  Rep.  523,  18 

N.  E.  334. 
Res    u  «•*!••«•• 

Cited  in  Pusheck  v.  Frances  E.  Willard  N.  T.  H.  Asso.  94  111.  App.  195,  holding 


1  L.R.A.  327]  L.  R.  A.  CASES  AS  AUTHORITIES.  78 

unexecuted  lease,  prepared  during  negotiations  for  reletting,  admissible  as  part 
of  res  gestce;  Smith  v.  Hawley,  8  S.  D.  367,  66  N.  W.  942,  holding  entries  made 
at  time  of  transaction  admissible  as  part  of  res  gestce. 
How   resulting   trusts   created. 

Cited  in  Van  Buskirk  v.  Van  Buskirk,  148  111.  23,  35  N.  E.  383,  holding  that  a 
resulting  trust  arises  from  purchase  of  lands  by  one  with  funds  of  another ; 
Warren  v.  Adams,  19  Colo.  523,  30  Pac.  604,  holding,  where  lands  are  purchased 
by  one  with  funds  of  another,  a  trust  results  from  acts,  and  not  from  agreement 
of  parties;  Centerville  v.  Turner  County,  25  S.  D.  302,  126  N.  W.  605,  holding 
that  collection  of  city  taxes  by  county  creates  implied  or  constructive  trust. 

Cited  in  notes   (3  L.R.A.  392)   on  creating  trust  by  deposit  of  money  for  an- 
other's use;   (10  Am.  St.  Rep.  888)  on  resulting  trusts. 
Hovr   resulting   trust   established. 

Cited  in   Walston   v.   Smith,   70  Vt.   28,   39   Atl.   252,  holding   parol   evidence 
admissible  to  establish  resulting  trust. 
Running   of   limitation    as    to    trusts. 

Cited  in  Campbell  v.  McFadden,  9  Tex.  Civ.  App.  395,  31  S.  W.  436,  holding 
repudiation  of  trust,  made  known  to  cestui  que  trust,  sets  statute  in  operation ; 
Fawcett  v.  Fawcett,  85  Wis.  338,  39  Am.  St.  Rep.  844,  55  N.  W.  405,  holding  re- 
pudiation of  resulting  trust  necessary  to  put  in  operation  statute  of  limitations; 
Meacham  v.  Bunting,  156  111.  594,  28  L.  R.  A.  620,  47  Am.  St.  Rep.  239,  41  N.  E. 
175,  holding  possession  of  lands  conveyed  in  trust  for  wife  subsequently  divorced 
not  adverse  to  her;  Crowley  v.  Crowley,  72  N.  H.  245,  56  Atl.  190,  holding  that 
statute  runs  in  favor  of  holder  of  legal  title  against  equitable  owner,  at  date  of 
conveyance. 

Cited  in  notes  (8  L.  R.  A.  480)  on  application  of  statute  of  limitations  to 
trusts;  (8  L.  R.  A.  649)  on  repudiation  of  trust  putting  in  operation  statute  of 
limitations;  (35  L.  ed.  U.  S.  1031)  on  statute  of  limitations  and  lapse  of  time 
as  bar  to  trusts;  (16  Eng.  Rul.  Cas.  272)  on  running  of  limitations  in  case  of 
breach  of  fiduciary  duty. 
Equitable  remedies;  lacbes. 

Cited  in  Zunkel  v.  Colson,  109  Iowa,  699,  81  N.  W.  175,  holding  lapse  of  time 
not  conclusive  evidence  of  laches;  Thorndike  v.  Thorndike,  142  111.  452,  21  L.  R. 
A.  75,  33  Am.  St.  Rep.  90,  32  N.  E.  510,  holding  that  courts  of  equity  will,  in 
proper  cases,  disregard  the  statute  of  limitations;  Farwell  v.  Great  Western 
Teleg.  Co.  161  111.  596,  44  N.  E.  891,  holding  relation  of  trust  excuses  failure  to 
*xercise  diligence  to  discover  fraud;  Wolf  v.  Great  Falls  Water  Power  &  Town- 
«ite  Co.  15  Mont.  64,  38  Pac.  115,  holding  one  may  be  guilty  of  laches  barring 
specific  performance  of  contract,  though  limitation  has  not  run;  Mullan  v. 
Carper,  37  W.  Va.  222,  16  S.  E.  527,  holding  delay,  less  than  period  of  legal 
limitation,  with  knowledge  of  adverse  possession  of  purchaser  under  invalid  de- 
cree, may  constitute  laches;  Carey-Lombard  Lumber  Co.  v.  Daugherty,  125  111. 
App.  264,  holding  that  where  a  party  had  concurrent  remedy  at  law  which  was 
outlawed  equity  will  follow  the  law;  Foss  v.  People's  Gaslight  &  Coke  Co.  145 
111.  App.  225,  holding  that  fifty  years  delay  by  stockholder  in  asserting  right 
to  participate  in  stock  increases  constitutes  laches;  Evans  v.  Moore,  247  111. 
73,  139  Am.  St.  Rep.  302,  93  N.  E.  118,  holding  that  nephew,  entitled  to  uncle's 
property  under  promise  thereof,  at  time  it  is  devised  to  another  on  latter's 
promise  to  hold  it  in  trust  for  nephew,  is  not  barred  from  asserting  his  right 
thereto  after  devisee's  death. 

Cited  in  notes   (11  Am.  St.  Rep.  885)    on  laches;    (23  Am.  St.  Rep.  149)    on 


79  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  339 

stale  claims;   (101  Am.  St.  Rep.  146)  on  nature  and  purposes  of  statute  of  lim- 
itations and  doctrine  of  laches. 

1  L.  R.  A.  331,  CONNOR  v.  VICKSBURG  &  M.  R.  CO.  2  Inters.  Com.  Rep.  177, 

36  Fed.  273. 
Jurisdiction  of  United   States  circuit  courts. 

Cited  in  Union  Switch  &  Signal  Co.  v.  Hall  Signal  Co.  65  Fed.  625,  holding 
circuit  court  has  no  jurisdiction  in  patent  case  against  nonresident  corporation; 
Bensinger  Self-Adding  Cash  Register  Co.  v.  National  Cash  Register  Co.  42  Fed. 
82,  holding  that  maintenance  of  office  in  district  does  not  give  circuit  court  ju- 
risdiction over  nonresident  corporation. 

Cited  in  footnote  to  Rece  v.  Newport  News  &  M.  Valley  Co.  3  L.  R.  A.  572, 
which  holds  state  cannot  deprive  foreign  corporation  of  right  to  resort  to 
Federal  courts. 

Cited  in  note    (14  L.  R.  A.   186)    as  to  where  corporation  an  inhabitant  for 
purpose  of  jurisdiction. 
Mode    of   objection    to   jurisdiction. 

Cited  in  Ladew  v.  Tennessee  Copper  Co.  179  Fed.  248,  holding  that  want  of 
jurisdiction  of  Federal  court  apparent  on  face  of  bill  may  be  raised  by  motion 
to  dismiss. 

1  L.  R.  A.  334,  LAMBERTVILLE  NAT.  BANK  v.  McCREADY  BAG  &  PAPER 

CO.   (N  J.  Eq.)    15  Atl.  388. 
Trnst   created    i>>    deposit. 

Cited  in  note  ( 3  L.  R.  A.  392 )  on  trust  created  by  deposit  of  money  for  another's 
use. 

1  L.  R.  A.  336,  MOORE  v.  WILLIAMSON,  44  N.  J.  Eq.  496,  15  Atl.  587. 
Property    passes    by    assignment. 

Cited  in  Meeker  v.  Felts,  49  N.  J.  Eq.  507,  23  Atl.  672,  holding  that  general 
assignment  passed  interest  as  residuary  legatee,  although  not  so  intended. 
Notice  ot  intent. 

Cited  in  Dougherty  v.  Connolly,  61  N.  J.  Eq.  428,  48  Atl.  777,  holding  mort 
gagee  chargeable  with  notice  of  fraudulent  exercise  of  power  of  sale,  where  cir- 
cumstances demanded  inquiry. 

Cited  in  notes  (31  L.  R.  A.  610,  614,  620)  on  participation  by  creditor  in 
/raudulent  intent  of  debtor  to  invalidate  transfer;  (34  Am.  St.  Rep.  399,  401; 
on  vendee's  knowledge  as  affecting  validity  of  fraudulent  conveyance;  (18  Eng. 
Rul.  Cas.  79)  on  effect  of  knowledge  of  mortgagee  of  intent  on  invalidity  of 
conveyance  in  fraud  of  creditors. 

1  L.  R.  A.  339,  SHUPE  v.  COLLENDER,  56  Conn.  489,  15  Atl.  405. 
Warranty  on  sale  of  goods  retained. 

Cited  in  Eyers  v.  Haddem,  70  Fed.  650,  holding  buyer  may  waive  special 
remedy  and  sue  for  breach  of  warranty;  Clark  v.  Wooster,  79  Conn.  131,  64  Atl. 
10,  holding  that  rescission  and  return  may  not  be  had  on  an  executed  sale  for 
breach  of  warranty  in  the  absence  of  fraud;  Fairmont  Plumbing  Co.  v.  Carr, 
54  W.  Va.  279,  46  S.  E.  458,  as  applying  where  dissatisfaction  of  purchaser  does 
not  disable  him  from  retaining  thing  purchased  and  recouping  for  breach  of  war- 
ranty on  action  for  the  price. 

Cited  in  notes  (1  L.  R.  A.  645)  on  implied  warranty  that  thing  sold  by  condi- 
tional sale  will  be  satisfactory;  (3  L.  R.  A.  184)  on  general  warranty  on  sale 


1  L.R.A.  339]  L.  R.  A.  CASES  AS  AUTHORITIES.  80 

of  chattel;  (6  L.R.A.  375)  on  express  warranty  on  sale  of  goods;  (12  L.R.A.(N.S.) 
541)  on  effect  of  provision  for  return  of  defective  goods  upon  buyer's  right  to 
recover  for  breach  of  warranty. 

1  L.  R.  A.  342,  LAWRENCE  v.  SECURITY  CO.  56  Conn.  423,  15  Atl.  406. 
Kiiiht   to   use   of  legacy   from   testator's   death. 

Cited  in  Blackstone's  Appeal,  64  Conn.  420,  30  Atl.  48.  holding  widow's  life 
use  of  third  of  estate  must  be  determined  as  of  date  of  testator's  death;  Wood- 
ruff v.  Marsh,  63  Conn.  134,  38  Am.  St.  Rep.  346,  26  Atl.  846,  holding  bequest  to 
trustees  for  charitable  use,  conditioned  upon  gift  of  land,  vested  on  testator's 
death;  Bancroft  v.  Security  Co.  74  Conn.  222,  50  Atl.  735,  holding  residuary  life 
legatee  entitled  to  net  income  of  bequest  from  date  of  testator's  death;  Bishop 
v.  Bishop,  81  Conn.  526,  71  Atl.  583;  Webb  v.  Lines,  77  Conn.  53,  58  Atl.  227,— 
on  commencement  of  use  of  income  by  life  legatee  from  testator's  death  where 
will  fixes  no  time  and  the  bequest  is  of  residuary  estate  or  aliquot  part  thereof. 

Cited  in  note   (2  L.  R.  A.  113)   on  when  use  of  income  commences. 
Waiver  of  right  to   enjoy  legacy. 

Cited  in  Brown's  Estate,  190  Pa.  465,  42  Atl.  890,  holding  life  legatee's  right 
to  interest  from  death  of  testator  may  be  barred  by  acquiescence  in  distribution. 

Distinguished  in  Dickinson  v.  Henderson,  122  Mich.  586,  81  X.  W.  583,  holding 
widow's  right  not  waived  for  failure  to  demand  payment,  no  order  for  distribu- 
tion having  been  made. 
Widow's  allowance  pending  settlement  of  estate. 

Cited   in  Havens's   Appeal,    09   Conn.   699,   38   Atl.   795,  holding   allowance  by 
probate  court  to  widow  pending  settlement  only  reviewable  on  appeal. 
Liability  of  trustee  for  sums  paid   under  approval  of  conrt. 

Cited  in  State  v.  Thresher,  77  Conn.  76,  58  Atl.  460,  holding  that  where  pay- 
ments were  made  by  trustee  in  good  faith  to  executor  by  order  of  probate  court, 
the  rights  of  persons  interested,  are  not  concluded  by  failure  to  appeal  when 
they  received  no  notice;  Jones  v.  Downs,  82  Conn.  42,  72  Atl.  589,  on  liability 
of  an  accounting  by  trustee  for  trust  estate. 
Waiver  of  levy  or  lien  by  second  process. 

Cited  in  Water  Supply  Co.  v.  Sarnow,  6  Cal.  App.  588.  92  Pac.  667,  holding 
that  the  issuance  and  levy  of  a  second  execution  does  not  waive  rights  acquired 
by  a  prior  levy  complete  and  regular  in  form. 

1  L.  R.  A.  346,  KELLOGG  v.  DICKINSON,  147  Mass.  432,  18  N.  E.  223. 
Agreement   to  -waive   statute   of   limitations. 

Cited  in  Wells,  F.  &  Co.  v.  Enright,  127  Cal.  673,  49  L.  R.  A.  649,  footnote,  p. 
647,  60  Pac.  439,  holding  written  agreement  in  consideration  of  forbearance  bind- 
ing; Trask  v.  Weeks,  81  Me.  328,  17  Atl.  162,  holding  agreement  to  waive  statute 
as  to  accounts  already  barred,  and  renewing  promise -to  pay,  not  a  contract  not 
to  plead  statute  in  future;  Holman  v.  Omaha  &  C.  B.  R.  &  Bridge  Co.  117  Iowa, 
273,  62  L.  R.  A.  398,  footnote,  p.  395,  94  Am.  St.  Rep.  293,  90  N.  W.  833,  holding 
one  promising  not  to  plead  statutory  bar  estopped  from  doing  so;  Union  Cent. 
L.  Ins.  Co.  v.  Spinks,  119  Ky.  269,  69  .L.R.A.  267,  83  S.  W.  615,  7  A.  &  E. 
Ann.  Cas.  913,  holding  that  a  clause  in  insurance  policy  requiring  action  on 
policy  to  be  brought  within  one  year  of  insured's  death  is  void  as  against  pub- 
lic policy  where  statute  provides  limit;  Holland  v.  Sheehan,  108  Minn.  368,  23 
L.R.A.(N.S.)  512,  122  N.  W.  1,  17  A.  &  E.  Ann.  Cas.  687,  on  the  invalidity 
of  agreements  to  waive  statute  of  limitations;  Xewell  v.  Clark.  73  N.  H.  292, 
61  Atl.  555,  holding  that  where  sureties  agree  "to  be  liable  without  notice  as 


81  L,  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  35f> 

long  as  there  is  any  liability  of  principal,"  they  do  not  mean  to  waive  statute 
of  limitations  and  if  they  do  the  statute  will  run  against  the  agreement  to  waive 
thus  barring  the  action. 
Presumption    of    payment. 

Cited  in  Anthony  v.  Anthony,  161  Mass.  350,  37  N.  E.  386,  holding  presumption 
of  payment  rebutted  by  evidence  of  nonpayment;  Courtney  v.  Staudenmayer,  56 
Kan.  397,  54  Am.  St.  Rep.  592,  43  Pac.  758,  holding  presumption  of  payment 
may  defeat  claim  not  barred  by  limitation;  Mitchell  v.  Bickford,  192  Mass.  245, 
78  X.  E.  453,  on  rebuttal  of  the  presumption  of  payment. 

1  L.  R.  A.  348,  KENYON  v.  WRISLEY,  147  Mass.  476,  18  N.  E.  227. 
Suit  by  bankrupt. 

Cited  in  Atwood  v.  Bailey,  184  Mass.  134,  68  N.  E.  13,  requiring  trustee's 
knowledge  of  action  to  be  shown  to  entitle  bankrupt  to  maintain  it  on  ground 
of  trustee's  election  by  acquiescence  not  to  assume  burden  of  it;  Equitable  Life 
Assur.  Soc.  v.  Perkins,  41  Ind.  App.  192,  80  N.  E.  682  (dissenting  opinion),  on 
right  of  suit  by  bankrupt  on  property  not  included  as  assets. 

Distinguished  in  Wood  v.  Baker,  60  Hun,  343,  14  N.  Y.  Supp.  821,  upholding 
action  by  bankrupt  after  discharge,  to  compel  reconveyance  from  grantee  in  deed 
given  as  security:  Sessions  v.  Romadka,  145  U.  S.  51,  36  L.  ed.  617,  12  Sup.  Ct. 
Rep.  799,  holding  two  years'  statute  no  bar  to  suit  by  bankrupt,  where  assignee 
abandoned  claim  before  his  right  to  sue  expired. 

1   L.   R.  A.   350,   SOUTHBRIDGE   SAV.  BANK  v.  MASON,   147  Mass.   500,   18 

N.  E.  406. 
\Vhnt  constitute   fixtures. 

Cited  in  Hopewell  Mills  v.  Taunton  Sav.  Bank,  150  Mass.  522,  6  L.  R.  A.  251, 
15  Am.  St.  Rep.  235,  23  N".  E.  327,  holding  cotton-mill  machinery  not  intended 
to  be  moved  from  building,  part  of  the  real  estate;  Globe  F.  Ins.  Co.  v.  Lexington,. 
173  Mass.  8,  52  N.  E.  1086,  holding  surveyor's  stakes  temporarily  in  ground,  per- 
sonal property;  Equitable  Guarantee  &  T.  Co.  v.  Knowles,  8  Del.  Ch.  131,  67 
Atl.  961,  on  the  question  as  to  when  machinery  and  manufacturing  appliances  are 
fixtures  and  when  not;  Hook  v.  Bolton,  199  Mass.  246,  17  L.R.A.(N.S-)  701,  127 
Am.  St.  Rep.  487,  85  N.  E.  175,  on  the  consideration  of  intent,  adaptability  and 
mode  of  annexation  in  determining  as  to  what  is  a  fixture. 

Cited  in  footnotes  to  Atchison,  T.  &  S.  F.  R.  Co.  v.  Morgan,  4  L.R.A.  284,. 
which  holds  uses  property  put  to  one  of  tests  whether  it  is  personalty  or  fixture: 
Murray  v.  Bender,  63  L.R.A.  783,  which  holds  chairs,  stage  fixtures,  and  drop 
curtains  annexed  to  theater  to  make  possible  the  use  of  the  building,  fixtures; 
Giddings  v.  Freedley,  65  L.R.A.  327,  which  holds  main  belt  transmitting  power 
from  an  engine,  so  annexed  to  building  as  to  be  real  estate,  to  machinery  in  mill, 
real  estate. 

Cited  in  notes   (3  L.  R.  A.  33,  34;  4  L.  R.  A.  674;  5  L.  R.  A.  594;  6  L.  R.  A- 
249)   on  what  are  fixtures. 
As   to   pure-baser   of  land   without   notice. 

Cited  in  Went  worth  v.  S.  A.  Woods  Mach.  Co.  163  Mass.  33,  39  N.  E.  414,. 
holding  title  to  fixtures  in  third  person  passes  to  vendee  of  land  without  notice. 
AH  to  mortgagee  of  land. 

Cited  in  Fuller-Warren  Co.  v.  Harter,  110  Wis.  87,  53  L.  R.  A.  607,  84  Am.  St. 

Rep.  867,  85  N.  W.  698,  holding  real  estate  fixtures  as  to  prior  mortgagee  of 

land  not  party  to  contract,  though  personalty  as  between  vendor  and  vendee; 

McKelvey  v.  Creevey,  72  Conn.  468,  77  Am.  St.  Rep.  321,  45  Atl.  4,  holding 

L.R.A.  Au.  Vol.  I.— 6. 


1   L.R.A.  350]  L.  E.  A.  CASES  AS  AUTHORITIES.  82 

to  fixtures  severed  by  mortgagor  in  possession  passes  absolutely  to  bona  fide  pur- 
chaser. 

Cited  in  footnotes  to  Anderson  v.  Creamery  Package  Mfg.  Co.  56  L.  R.  A.  554, 
which  holds  seller's  reserved  or  chattel-mortgage  title  to  machinery  in  building 
does  not  pass  to  prior  mortgagee  of  real  estate;  Neufelder  v.  Third  Street  & 
Suburban  R.  Co.  53  L.  R.  A.  601,  which  holds  machinery  not  made  especially  for 
building  not  realty  as  to  mortgagee  by  being  bolted  or  secured  down. 

Cited  in  note   (10  L.  R.  A.  725)   on  fixtures,  as  between  mortgagor  and  mort- 
gagee. 
Findings  as  to  facts. 

Cited  in  Morrell  v.  Kelley,  157  Mass.  127,  31  N.  E.  755,  holding  court  will  not 
reverse  findings  of  master,  unless  clearly  wrong;  Briggs  v.  Hiles,  87  Wis.  447, 
58  N.  W.  752,  refusing  to  disturb  finding  of  referee  on  conflicting  evidence;  Smith 
v.  Bay  State  Sav.  Bank,  202  Mass.  488,  88  N.  E.  1086,  holding  that  as  to  what 
was  intent  of  owner  where  hotel  realty  was  mortgaged  not  mentioning  a  saloon 
bar,  which  was  easily  removable  and  later,  after  payment  for  bar,  it  was  specifi' 
cally  mortgaged  as  personalty,  is  a  question  for  the  jury,  their  finding  of  intent 
controlling  the  character  of  the  bar. 

1  L.  R.  A.  354,  NOYES  v.  GARDNER,  147  Mass.  505,  18  N.  E.  423. 
Notice  of  defect  in  highway. 

Cited  in  Tilton  v.  Wenham,  172  Mass.  409,  52  N.  E.  514,  holding  inference 
of  town's  notice  of  stump  concealed  by  grass  within  inch  of  traveled  part  of 
highway,  justified;  Campbell  v.  Kalamazoo,  80  Mich.  660,  45  N.  W.  652,  holding 
notice  inferable  from  general  rotten  condition  of  walk  for  more  than  year;  Com- 
erford  v.  Boston,  187  Mass.  567,  73  N.  E.  661,  holding  it  for  jury  whether  city 
had  notice  of  subsidence  of  walk  on  a  much  traveled  street;  Roswell  v.  Daven- 
port, 14  N.  M.  96,  89  Pac.  256,  holding1  that  evidence  of  generally  unsafe 
condition  of  walk  is  evidence  tending  to  charge  city  with  constructive  notice 
of  defect  causing  injury. 

Cited  in  notes   (6  L.  R.  A.  696)   on  liability  of  towns  and  villages  for  neglect 
of  highways;    (10  L.  R.  A.  740)    on  proof  of  notice  of  defect  essential  to  hold 
municipality  liable  for  unsafe  condition  of  street. 
Liability  of  municipality  for  obstructions  in  streets. 

Cited  in  New  York  C.  &  H.  R.  R.  Co.  v.  Cambridge,  186  Mass.  251,  71  N.  E. 
557,  on  liability  of  city  for  obstructions  in  streets  caused  by  railroad  construc- 
tion. 

Cited  in  notes  (19  L.R.A.  (N.S.)  523;  20  L.R.A.  ( N.S. )  699)  on  liability  of  mu- 
nicipality for  defects  or  obstructions  in  streets. 

1  L.  R.  A.  355,  ASHLEY  v.  HART,  147  Mass.  573,  18  N.  E.  416. 
Employer's  liability  act. 

Cited  in  Ryalls  v.  Mechanics'  Mills,  150  Mass.  195,  5  L.  R.  A.  670,  22  N.  E. 
766,  holding  suit  at  common  law  not  barred  by  act;  Conroy  v.  Clinton,  158  Mass. 
320,  33  N.  E.  525,  holding  master  not  liable  for  caving  in  of  sewer  trench,  where 
planks  used  were  sound,  and  deceased  had  charge  of  shoring  up  sides;  O'Connor  v. 
Neal,  153  Mass.  283.  26  N.  E.  857,  holding  placing  upon  rubbish  heap  of  barrel 
for  staging,  by  assistant,  gave  no  right  of  action;  Trimble  v.  Whitin  Much.  Works. 
172  Mass.  153,  51  N.  E.  463,  holding  the  master  not  liable  for  failure  to  place 
gang  plank  at  side  of  car;  Nye  v.  Dutton,  187  Mass.  551,  73  X.  E.  654,  holding 
that  employer  is  not  liable  for  injury  caused  by  negligence  of  fellow  servant 
engaged  in  adjusting  a  new  piece  of  machinery  to  replace  a  broken  piece,  under 
the  liability  act. 


83  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  356 

Cited  in  footnotes  to  Johnson  v.  St.  Paul  &  D.  R.  Co.  8  L.R.A.  419,  which 
holds  master  not  liable  for  injury  caused  by  blowing  to  of  draw  left  unfastened 
by  one  of  train  crew;  Farrell  v.  Eastern  Machinery  Co.  68  L.R.A.  239,  which 
holds  employer  selecting  and  placing  defective  plank  with  timber  designed  for 
construction  of  staging  liable  for  injury  to  employee  through  its  use. 

Cited  in  notes  (57  L.  R.  A.  818,  842)  on  statutory  liability  of  employers  for 
defects  in  condition  of  their  plants;  (11  Am.  St.  Rep.  570)  on  master's  liability 
for  injuries  due  to  fellow  servant's  negligence. 

Distinguished  in  Geloneck  v.  Dean  Steam  Pump  Co.  165  Mass.  217,  43  N.  E. 
S5,  holding  master  liable  for  accident  by  fall  of  iron  pump  from  truck  moved 
under  direction  of  foreman. 

1  L.  R.  A.  356,  BEST  v.  BAUMGARDNER,  122  Pa.  17,  15  Atl.  691. 
Repeal  by  implication. 

Cited  in  Chalfant  v.  Edwards,  176  Pa.  71,  38  W.  N.  C.  264,  34  Atl.  922,  hold- 
ing act  to  make  effective  constitutional  provisions  limiting  borrowing  power  of 
school  districts  repealed  local  statutes;  Com.  ex  rel.  McKirdy  v.  Macferron,  152 
Pa.  250,  31  W.  N.  C.  324,  19  L.  R,  A.  569,  25  Atl.  556,  holding  previous  local 
city  acts  repealed  by  general  classification  act;  Jenkins  v.  Scranton,  202  Pa.  273, 
51  Atl.  994,  holding  act  fixing  officer's  salary  at  percentage  of  collections  re- 
pealed by  act  fixing  salary  at  stated  sum;  'Com.  ex  rel.  McEntire  v.  Summerville, 
204  Pa.  303,  54  Atl.  27;  Boyer  v.  Carroll,  8  Northampton  Co.  Rep.  346,  11  Kulp, 
31;  Clark  v.  Koplin,  6  Pa.  Super.  Ct.  463,  holding  local  law  must  yield  to  later 
general  law  intended  as  a  substitute;  Com.  v.  Brown,  25  Pa.  Super.  Ct.  281,  on 
repeal  by  substitution  of  later  enactment  for  former;  Sun  &  Banner  Pub.  Co.  v. 
Bennett,  26  Pa.  Super.  Ct.  248,  holding  a  general  statute  passed  to  revise  and 
consolidate  law  on  granting  licenses  to  sell  liquor,  substituted  for  a  local  act 
relating  to  legal  advertisements;  Bridgewater  v.  Beaver  Valley  Traction  Co.  12 
Pa.  Dist.  R.  482,  holding  a  general  act  without  specific  words  of  repeal  operated 
as  a  repeal  of  a  local  act  the  provisions  of  which  were  fully  supplied  by  the 
general  act;  Com.  v.  Leibrich,  33  Pa.  Co.  Ct.  292,  16  Pa.  Dist.  R.  471,  holding 
a  local  special  act  to  be  repealed  where  a, general  act  is  passed  fully  covering 
same  matter  manifesting  intention  of  legislature  that  such  be  the  effect; 
Gymnastic  Asso.  v.  Milwaukee,  129  Wis.  432,  109  N.  W.  109,  holding  a  special 
enactment  of  incorporation  and  exemption  of  society  from  taxation  to  be  super- 
seded as  to  exemption  by  general  act  exempting  all  such  societies  which  are  or 
may  be  incorporated. 
Mechanic'**  lien  as  affected  by  notice. 

Cited  in  Groezinger  v.  Ostheim,  135  Pa.  611,  19  Atl.  949;  Uber  v.  MacAfee,  10 
Lane.  L.  Rev.  92,  2  Pa.  Dist.  R.  372;  Miller  v.  Enck,  13  Lane.  L.  Rev.  191;  Safe 
Deposit  &  T.  Co.  v.  Motheral,  8  Pa.  Super.  Ct.  434, — holding  notice  of  intention 
to  file  lien  necessary;  Kolb  v.  Reformed  Episcopal  Church,  18  Pa.  Super.  Ct. 
479;  Law  v.  Levine,  13  Pa.  Super.  Ct.  156;  Mehl  v.  Fisher,  13  Pa.  Super.  Ct. 
335,  holding  notice  necessary  in  case  of  addition  to  old  building  where  two  are 
intended  to  be  used  for  common  purpose;  Purvis  v.  Ross,  158  Pa.  21,  27  Atl.  882, 
Affirming  12  Pa.  Co.  Ct.  194,  holding  lien  properly  stricken  off  for  want  of  notice. 
CliaiiR-e  of  remedy  as  impairment  of  obligation. 

Cited  in  National  Bank  v.  Williams,  38  Fla.  315,  20  So.  931,  holding  laborer's 
lien  a  statutory  remedy,  not  vested  right  in  contract  of  service;  Mack  v.  De- 
graff  &  R.  Quarries,  57  Ohio  St.  483,  63  Am.  St.  Rep.  729,  49  N.  E.  697,  holding 
lien  for  material  sold  and  delivered  without  state  for  use  in  state  enforceable,  aa 
lien  statute  is  remedial ;  Miller's  Estate,  18  Pa.  Dist.  R.  226,  sustaining  a  retro- 
spective law  where  it  effects  not  the  rights  but  the  remedy. 


1   L.R.A.  356]  L.  R.  A.  CASES  AS  AUTHORITIES.  84 

Cited  in  footnotes  to  Beverly  v.  Barnitz,  31  L.R.A.  74.  which  holds  "redemp- 
tion law"  did  not  impair  obligation  of  contract;  International  Bldg.  &  L.  Asso.  v. 
Hardy,  24  L.  R.  A.  284,  which  holds  vested  right  to  remedy  for  enforcement  of 
trust  deed  provided  in  contract  could  not  be  destroyed;  Second  Ward  Sav.  Bank 
v.  Schranck,  39  L.  R.  A.  569,  which  holds  statutory  remedy  by  judgment,  execu- 
tion, and  levy  cannot  be  taken  away  by  subsequent  statute;  Peninsular  Lead  & 
Color  Works  v.  Union  Oil  &  Paint  Co.  42  L.  R.  A.  331,  which  holds  act  dissolving 
attachment  by  assignment  for  creditors  invalid  when  right  complete ;  Elton  v. 
O'Connor,  33  L.  R.  A.  524,  which  holds  discharge  feature  of  insolvency  law  in- 
valid as  to  existing  creditors ;  Jones  v.  German  Ins.  Co.  46  L.  R.  A.  860,  which 
holds  statute  shortening  insurance  company's  immunity  from  suit  without  ex- 
tending statute  of  limitations  does  not  impair  right  in  policy  previously  issued: 
Kirkman  v.  Bird,  58  L.  R.  A.  669,  which  holds  statute  exempting  earnings  of 
heads  of  families  directed  to  remedy;  W7hite  v.  Farmers'  Highline  Canal  &  R. 
Co.  31  L.  R.  A.  828,  which  holds  contract  giving  consumer  right  to  draw  water 
from  canal  could  be  interfered  with  by  legislation  regulating  distribution  of 
water;  Miners'  &  Merchants'  Bank  v.  Snyder,  68  L.R.A.  312,  which  holds  corporate 
creditor's  contract  rights  not  impaired  by  statute  requiring  all  creditors  to  unite 
in  one  suit  against  all  stockholders  for  equitable  distribution  of  liability  fund 
among  creditors. 

Cited  in  note  (10  L.  R.  A.  407)  on  inability  of  statute  to  take  away  vested 
rights. 

Distinguished  in  Horn  &  B.  Mfg.  Co.  v.  Steelman,  215  Pa.  192,  64  Atl.  400, 
holding  statute  extending  privilege  of  lien  law  to  gas  fixtures  "contracted"  was 
not  retroactive  on  existing  contracts. 
As  to  defense  of  limitation. 

Cited  in  footnotes  to  Board  of  Education  v.  Blodgett,  31  L.  R.  A.  70,  which 
holds  completed  defense  of  statute  of  limitations  could  not  be  taken  away  from 
school  district;  Lawrence  v.  Louisville,  27  L.  R.  A.  560,  which  holds  vested 
right  to  defense  after  bar  of  limitations  complete  cannot  be  changed;  Osborne  v. 
Lindstrom,  46  L.  R.  A.  715,  and  Gilbert  v.  Ackerman,  45  L.  R.  A.  118,  which, 
hold  statute  shortening  period,  without  providing  reasonable  time  for  bringing 
action,  not  due  process;  Lamb  v.  Powder  River  Live  Stock  Co.  67  L.R.A.  558, 
which  holds  re-enactment  of  statute  of  limitations  with  shortened  period  as- 
to  judgments  rendered  outside  of  the  state  applicable  to  actions  on  judgments 
existing  on  time  of  its  passage. 

1  L.  R.  A.  361,  TITUSVILLE  IRON  WORKS  v.  KEYSTONE  OIL  CO.  122  Pa. 

627,  15  Atl.  917. 
Separation   of  departments   of  government. 

Followed  without  special  discussion  in  Marsh  v.  Bower,  1  Monaghan  (Pa.)' 
248,  and  Gearing  v.  Hapgood,  1  Monaghan  (Pa.)  249,  15  Atl.  920. 

Cited  in  Lindsay  v.  United  States  Sav.  &  L.  Asso.  120  Ala.  171,  42  L.  R.  A, 
787,  24  So.  171,  holding  act  attempting  to  legalize  past  usurious  transactions  in- 
valid usurpation  of  judicial  power;  Reilly's  Estate,  6  North.  Co.  Rep.  389,  hold- 
ing that  clause  in  will  that  decision  of  executors  shall  be  final  and  conclusive 
in  defining  its  provisions  is  against  public  policy. 

Cited  in  footnotes  to  State  v.  Denny,  4  L.  R.  A.  65,  which  holds  legislative- 
power  exceeded  in  establishing  a  board  of  metropolitan  police  and  fire  depart- 
ment; King  v.  State,  3  L.  R.  A.  210,  which  holds  act  allowing  judge  at  discre- 
tion to  permit  jury  to  disperse  in  criminal  trial  invalid. 

Cited  in  note  (3  L.R.A.  54)  on  departments  of  government,  distinct  and  ins- 
dependent. 


«5  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  3G1 

l.«-ir.is!n«  ion    Jlxingr   construction    of    previous   acts. 

Approved  in  Com.  v.  J — ,  21  Pa.  Co.  Ct.  626,  holding  an  enactment  defining 
the  meaning  of  terms  used  in  prior  enactments,  a  legislative  interpretation  of  a 
statute. 

Cited  in  Purvis  v.  Ross,  12  Pa.  Co.  Ct.  196,  holding  an  amendatory  statute 
creating  new  rights  as  distinguished  from  an  explanatory  statute  is  not  an  in- 
vasion of  the  province  of  the  court. 

Distinguished  in  Com.  ex  rel.  Roney  v.  Warwick,  172  Pa.  144,  33  Atl.  373, 
holding  act  usurps  judicial  power  which  declares  what  the  words  "next  city  elec- 
tion" in  existing  act  mean;  Dilworth  v.  Schuylkill  Improv.  Land  Co.  2] 9  Pa.  530, 
69  Atl.  47,  37  Pittsb.  L.  J.  N.  S.  394,  holding  a  statutory  definition  of  words  in  a 
deed,  will  or  other  instrument,  not  a  wrongful  exercise  of  a  judicial  function. 
Title  of  act. 

Followed,  without  special  discussion,  in  Marsh  v.  Bower,  1  Monaghan  (Pa.) 
248,  and  Gearing  v.  Hapgood,  1  Monaghan  (Pa.)  249,  15  Atl.  920. 

Cited  in  Beard  v.  Wilson,  52  Ark.  295,  12  S.  W.  567,  holding  act  extending 
application  of  certain  sections  of  statute,  without  re-enacting  or  publishing  same, 
void;  Pittsburgh's  Petition,  138  Pa.  429,  21  Atl.  760,  holding  invalid  act  con- 
ferring on  newly  created  heads  of  departments  powers  previously  belonging  to 
many  local  offices  discontinued  and  not  specified;  Whitney's  Appeals,  48  Phila. 
Leg.  Int.  209,  holding  unconstitutional  act  extending  to  newly  created  heads  of 
departments  acts  as  to  abolished  offices,  without  a  reference  to  their  dates,  titles 
or  subject-matter;  Com.  v.  Dougherty,  39  Pa.  Super.  Ct.  345,  holding  a  state 
statute  invalid  as  to  the  subdivision  of  a  section  attempting  to  introduce  into 
it  an  act  of  Congress  by  reference  to  its  title  only;  Wilson  v.  Downing,  4  Pa. 
Super.  Ct.  492,  40  W.  N.  C.  344,  giving  the  meaning  of  the  inhibition  against 
statutory  enactment  by  reference  to  title,  as  that  all  enactments  must  be  self 
explanatory  and  complete  in  themselves;  Phillips'  Estate,  6  Pa.  Co.  Ct.  502,  on 
the  amendment  of  statutes  by  reference  to  title  of  act  to  be  amended;  Titus 
v.  Elyria  Oil  Co..l  Pa.  Dist.  R.  206;  McKeever  v.  Victor  Oil  Co.  9  Pa.  Co.  Ct.  285, 
— holding  an  inclusion  of  a  former  enactment  in  a  statute  by  general  reference 
as  the  "law  in  case  of  mechanics'  liens,"  invalid;  Com.  v.  Cucovic,  16  Pa.  Dist.  R. 
1021,  33  Pa.  Co.  Ct.  233;  Com.  v.  Hodusko,  24  Pa.  Co.  Ct.  390,  31  Pittsb.  L.  J. 
N.  S.  236, — holding  an  act  to  amend  a  statute  unconstitutional  for  failure  to  set 
out  contents  of  statute  to  be  amended. 

Cited  in  footnotes  to  Hyman  v.  State,  1  L.  R.  A.  497,  which  holds  prohibition 
against  selling  liquor  to  drunken  husbands  not  within  title  as  to  sales  to  minors; 
Floyd  v.  Perrin,  2  L.  R.  A.  242,  which  holds  provision  authorizing  counties,  etc., 
to  subscribe  to  stock  of  railroad,  and  making  them  bodies  politic  and  corporate 
with  necessary  powers,  within  title  "An  Act  to  Charter"  such  railroad  company; 
Winona  v.  School  Dist.  No.  82,  3  L.  R.  A.  46,  which  holds  act  extending  bound- 
aries of  city  not  void  because  title  does  not  refer  to  boundaries  of  school  dis- 
trict previously  established  in  city;  Wardle  v.  Townsend,  4  L.  R.  A.  511,  which 
holds  provision  for  winding  up  insurance  companies  within  title  as  to  their  in- 
corporation and  defining  their  duties;  Judson  v.  Bessemer,  4  L.  R.  A.  742,  which 
holds  provision  for  issuing  municipal  bonds  within  title  as  to  amendment  of 
charter  and  reincorporation  of  city;  Eaton  v.  Walker,  6  L.  R.  A.  102,  which  holds 
invalid  amendment  extending  to  mercantile  companies  provision  of  act  relating 
to  manufacturing  companies;  Thomas  v.  Wabash,  St.  L.  &  P.  R.  Co.  7  L.  R.  A. 
145,  which  holds  provision  giving  right  to  water  limited  to  companies  owning 
landings,  not  within  title  as  to  facilitation  of  carriage  of  passengers  and  prop- 
erty; Millvale  v.  Evergreen  R.  Co.  7  L.  R.  A.  369,  which  holds  title  in  sup- 
plemental act  referring  only  to  title  of  principal  act  valid  if  legislation  germane; 


1  L.R.A.  361]  L.  R.  A.  CASES  AS  AUTHORITIES. 

State  v.  Snow,  11  L.  R.  A.  355,  which  holds  prohibition  of  sale  of  lard  or  any 
article  intended  for  use  as  lard,  other  than  pure  swine  fat,  without  marking, 
within  title  as  to  preventing  fraud  in  sale  of  lard;  State  v.  Burgdoerfer,  14 
L.  R.  A.  846,  which  holds  provision  forbidding  book-making  and  pool-selling  on 
events  occurring  out  of  state  clearly  expressed  by  title  prohibiting  book-making 
and  pool-selling;  Hronek  v.  People,  8  L.  R.  A.  837,  which  hold  valid  statute  regu- 
lating manufacture,  etc.,  of  explosives  for  legitimate  purposes,  with  prohibition 
against  unlawful  destruction;  Snell  v.  Chicago,  8  L.  R.  A.  858,  which  holds  in- 
valid sections  of  act  providing  for  plank  road  on  a  different  line  from  that  ex- 
pressed in  title. 

Cited  in  notes  (2  L.  R.  A.  609)  on  title  to  act  must  express  but  one  object; 
(4  L.  R.  A.  93)  on  title  to  act  must  embrace  its  subject;  (2  L.  R.  A.  789)  on 
title  of  statutes  suggesting  subjects  dealt  with  in  act;  (64  Am.  St.  Rep.  79) 
on  sufficiency  of  title  of  statute. 

Distinguished  in  Re  Emsworth,  5  Pa.  Super.  Ct.  35,  holding  a  new  law  enacted 
conferring  powers  and  imposing  duties  denning  them,  constitutional  though  it  in 
effect  extends,  modifies,  repeals  or  amends  a  former  act  upon  the  subject  not 
set  out  in  the  new  law;  Forty  Fort  v.  Forty  Fort  Water  Co.  9  Kulp.  250,  holding 
a  supplement  to  a  statute,  merely  enlarging  powers  conferred  need  not  re-enact 
the  statute  enlarged  upon. 
Effect  on  act  of  invalid  provision. 

Cited  in  footnote  to  McCormick  v.  Pratt,  17  L.  R.  A.  250,  which  holds  appro- 
priation does  not  fail  because  naming  of  officers  to  expend  money  invalid. 
Persons   entitled  to  mechanic's   lien. 

Cited  in  Wrigley  v.  Mahaffey,  5  Pa.  Dist.  R.  390,  holding  that  a  journeyman 
mechanic  has  no  lien  for  wages  in  building  constructed. 

1  L.  R.  A.  364,  BELL  v.  MAHN,  121  Pa.  225,  6  Am.  St.  Rep.  786,  15  Atl.  523. 
License  for  theatrical   performance. 

Cited  in  Re  Stevens,  70  Hun,  245,  24  N.  Y.  Supp.  780,  denying  mayor's  power 
to  give  consent  to  theatrical  exhibition  including  singing  or  dancing  by  child 
under  sixteen;  Re  Theatrical  Exhibitions,  14  Pa.  Co.  Ct.  659,  3  Pa.  Dist.  R.  192, 
holding  opera  a  theatrical  entertainment;  Com.  v.  Keeler,  3  Pa.  Dist.  R.  160, 
holding  manager  of  theatrical  troupe  required  to  obtain  license  though  playing 
under  contract  with  licensed  proprietor  of  building. 

Cited  in  note  (110  Am.  St.  Rep.  529), on  performances  for  which  license  may 
be  required. 

Distinguished  in  Hayes  v.  Coatesville  Opera-House  Co.  139  Pa.  638,  22  Atl. 
647,  Affirming  8  Pa.  Co.  Ct.  539,  holding  theatrical  licenses  not  required  for  per- 
formances in  other  than  Philadelphia  and  Allegheny  counties;  Com.  v.  Reif- 
snyder,  14  Pa.  Co.  Ct.  356,  3  Pa.  Dist.  195,  holding  manager  of  troupe  playing 
in  theater  under  contract  with  proprietor  having  license  not  required  to  obtain 
license. 
Construction  of  "theater." 

Cited  in  State  v.  Penny,  42  Mont.  126,  31  L.R.A.(X.S.)  1159,  111  Pac.  727, 
holding  that  word  "theater"  in  Sunday  closing  act  does  not  include  moving  picture 
theater;  Xeher  v.  Viviani,  15  X.  M.  468,  110  Pac.  695,  holding  that  furniture  is 
not  necessary  part  of  theater  building. 

1  L.  R.  A.  366,  KNOLL  v.  NEW  YORK,  C.  &  ST.  L.  R.  CO.   121   Pa.  467,   15 

Atl.  571. 
Recovery   by   mortgagee    for   injuries    to   mortgrag'ed   property. 

Cited  in  McCaleb  v.  Goodwin,  114  Ala.  623,  21  So.  967,  holding  purchaser  under 


87  L.  JR.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  370 

foreclosure  acquires  no  right  of  action  for  impairment  of  security;  Mack  v. 
Eastern  &  N.  R.  Co.  7  Northampton  Co.  Rep.  319,  denying  right  of  mortgagee, 
purchasing  at  foreclosure,  to  recover  right  of  way  granted  railroad  by  mort- 
gagor: Re  Torchia,  59  Pittsb.  L.  J.  188,  185  Fed.  581,  holding  that  mortgagee 
has  no  lien  on  damages  to  mortgaged  premises  from  change  of  grade  of  street, 
in  hands  of  trustee  in  bankruptcy  of  mortgagor;  Jackson  v.  Pittsburg,  36  Pa. 
Super.  Ct.  280,  holding  mortgagee  not  entitled  to  notice  prior  to  payment  of 
damages  to  mortgagor  for  street  openings  through  mortgaged  property;  Mack 
v.  Eastern  &  X.  R.  Co.  10  Pa.  Dist.  R.  103,  holding  mortgagees  entitled  to  equi- 
table apportionment  of  damages  to  mortgaged  property  to  the  extent  only  of 
the  impairment  of  their  security,  mortgagor  being  insolvent. 

Cited  in  notes  (12  L.  R.  A.  84;  18  L.  R.  A.  116)  on  rights  of  mortgagee  of 
premises  taken  by  eminent  domain;  (6  L.  R.  A.  612)  on  personal  action  by 
mortgagee;  (7  L.  R.  A.  35)  on  personal  liability  of  vendee  assuming  encumbrance. 

Distinguished  in  Philadelphia  &  R.  R.  Co.  v.  Pennsylvania  S.  Valley  R.  Co. 
151  Pa.  575,  31  W.  N.  C.  188,  25  Atl.  177,  authorizing  payment  of  damages  into 
court  for  protection  of  all  parties,  where  mortgaged  land  taken  by  condemnation. 
Injury  to  property  subject  to  life  estate. 

Cited  in  De  Witt  v.  Lehigh  Valley  R.  Co.  21  Pa.  Super.  Ct.  16,  holding  fund 
paid  into   court  for   destruction  of  building  on  estate  occupied  by  life  tenant, 
asset  subject  to  life  estate,  for  payment  of  remainderman's  debts. 
Recovery    for   injury   to   property   not   condemned. 

Cited  in  note  (22  Am.  St.  Rep.  51)  on  injury  to  property  not  taken  as  ele- 
ment of  damages  in  eminent  domain. 

1  L.  R.  A.  368,  FECHHEIMER  v.  HOLLANDER,  6  Mackey,  512. 

Report  of  second  appeal  in  21  D.  C.  76.  appeal  from  which  to  United  States 
Supreme  Court  was  dismissed  in  162  U.  S.  326,  40  L.  ed.  985,  16  Sup.  Ct.  Rep.  795. 
When  jndg-ment  creditor  entitled  to  equitable  relief. 

Cited  in  footnote  to  Harper  v.  Clayton,  35  L.  R.  A.  211,  which  holds  unassigned 
right  of  dower  cannot,  in  absence  of  statute,  be  reached  by  creditor's  bill. 

1  L.  R.  A.  370,  STATE  v.  JACKSON,  36  Fed.  258. 
Extradition   proceedings. 

Cited  in  footnote  to  Scott  v.  Eldridge,  12  L.R.A.  379,  holding  arrest  for  past 
misdemeanor,  without  warrant,  on  authority  of  letter  of  police  officer  of  another 
state,  unlawful. 

Cited  in  notes  (14  L.R.A.  129)  on  right  to  try  prisoner  for  other  crime  than 
that  for  which  he  was  surrendered;  (68  Am.  St.  Rep.  133)  on  grounds  for  refusal 
by  state  to  surrender  person  demanded  by  authorities  of  another;  (47  L.  ed.  U.  S. 
657)  on  necessity,  for  extradition  purposes,  to  actual  presence  of  accused  in  de- 
manding state. 
"Fugitive"  from  justice. 

Cited  in  footnote  to  People  ex  rel.  Corkran  v.  Hyatt,  172  N.  Y.  200,  60  L.R.A. 
782,  92  Am.  St.  Rep.  706,  64  N.  E.  825,  holding  actual  presence  of  accused  in 
demanding  state  at  time  of  crime  is  necessary  to  make  him  fugutive. 

Cited  in  note  (28  L.R.A.  289)  on  who  are  fugitives  subject  to  extradition. 
Illegality   of   extradition   nn   defense. 

Cited  in  Knox  v.  State,  164  Ind.  230,  108  Am.  St.  Rep.  291,  73  N.  E.  255,  3  A. 
&  E.  Ann.  Cas.  539,  holding  that  a  fugitive  fleeing  from  justice  from  one  state 
to  another  can  when  extradited  be  tried  for  crime  other  than  the  one  for  which 
he  was  returned.. 


1  L.R.A.  370]  L.  R.  A.  CASES  AS  AUTHORITIES.  88 

Cited  in  notes  (15  L.R.A.  177)  on  wrongful  bringing  of  criminal  into  juris- 
diction as  defense;  (12  L.R.A.(N.S.)  225,  226)  on  right  of  person  wrongfully 
brought  into  jurisdiction  to  release  on  habeas  corpus. 

Distinguished  in  Kingen  v.  Kelley,  3  Wyo.  570,  15  L.  R.  A.  180,  28  Pac.  36, 
holding  wrongful  bringing  of  criminal  into  state  where  crime  was  committed  not 
a  defense. 

Disapproved   in   effect  in  Re  Cook,   49   Fed.   839,   holding,  after   surrender  of 
prisoner  to  demanding  state,  regularity  of  extradition  cannot  be  questioned. 
Review    on    linlicnn    corpus. 

Cited  in  footnotes  to  Re  Reinitz,  4  L.  R.  A.  236,  which  holds  Federal  court 
may  issue  habeas  corpus  to  inquire  into  detention  of  extradited  person  under 
process  of  state  court;  Ex  parte  Tod,  47  L.  R.  A.  566,  which  holds  judge  author- 
ized to  issue  habeas  corpus  may  review  extradition  proceedings;  State  ex  rel. 
McNichols  v.  Justus,  55  L.  R.  A.  325,  which  holds  upon  habeas  corpus  review 
court  will  not  consider  illegal  detention  prior  to  extradition  warrant. 

1  L.  R.  A.  374,  DEHM  v.  HINMAN,  56  Conn.  320,  15  Atl.  741. 
Trespasser   a1>   initio. 

Cited  in  Anderson  v.  Cowles,  72  Conn.  338,  77  Am.  St.  Rep.  310,  44  Atl.  477, 
holding  failure  to  return  search  warrant  renders  acts  done  trespasses  ab  initio; 
Boston  &  M.  R.  Co.  v.  Small,  85  Me.  466,  35  Am.  St.  Rep.  379,  27  Atl.  349,  hold- 
ing failure  to  seize  intoxicating  liquors  under  search  warrant  departure  from 
authority,  rendering  officer  trespasser  ab  initio;  Piedmont  Hotel  Co.  v.  Hender- 
son, 9  Ga.  App.  683,  72  S.  E.  51,  holding  that  failure  to  take  person  arrested 
without  warrant  before  magistrate  within  reasonable  time  make  arrest  trespass 
ab  initio. 
Liability  for  assisting:  in  unlawful  arrest. 

Cited  in  note  (14  L.R.A.(N.S.)  1126)  on  liability  for  assisting  in  unlawful 
arrest  or  subsequent  detention. 

1   L.  R.  A.  375,  STAMFORD  v.  STAMFORD  HORSE  R.  CO.  56  Conn.  381,   15 

Atl.  749. 
Remedies   for   obstruction   of   pulilic   places. 

Cited  in  Re  Debs,  158  U.  S.  582,  39  L.  ed.  1102,  15  Sup.  Ct.  Rep.  900,  holding 
right  of  United  States  government  to  forcibly  remove  obstruction  to  interstate 
commerce  or  carrying  of  mails  not  ground  for  denying  injunction:  Xew  York, 
N.  H.  &  H.  R.  Co.  v.  Bridgeport  Traction  Co.  65  Conn.  424,  29  L.  R.  A.  370.  32 
Atl.  953,  holding  railroad  company  entitled  to  injunction  against  unlawful  ob- 
struction of  right  of  way;  New  York,  N.  H.  &  H.  R.  Co.  v.  Scovill,  71  Conn.  148, 
42  L.  R.  A.  160,  71  Am.  St.  Rep.  159,  41  Atl.  246,  holding  railroad  company 
entitled  to  injunction  against  future  trespasses  on  station  grounds  by  unau- 
thorized hackman;  State,  Cape  May,  D.  B.  &  S.  P.  R.  Co.,  Prosecutor,  v.  Cape  May. 
58  N.  J.  L.  570,  34  Atl.  397,  upholding  municipality's  right  to  remove,  without 
resort  to  courts,  unauthorized  street  railroad  constructed,  without  authority,  in 
highway;  Central  R.  &  Electric  Co.'s  Appeal,  67  Conn.  214,  35  Atl.  32,  holding 
increased  expense  occasioned  by  location  of  tracks  in  street  recoverable  from 
railway  company  by  city  charged  with  maintenance;  Canastota  Knife  Co.  v. 
Newington  Tramway  Co.  69  Conn.  176,  36  Atl.  1107  (concurring  opinion),  ma- 
jority denying  adjoining  owner's  right  to  recover  for  construction  of  electric  rail- 
way in  highway;  Dawson  v.  Orange,  78  Conn.  117,  61  Atl.  101,  on  right  of  mu- 
nicipality to  institute  suits  for  equitable  relief  from  obstructions  in  highway 
under  its  care. 

Cited  in  notes   (39  L.  R.  A.  651)   on  municipal  power  over  nuisances  affecting 


89  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  S7S 

highways  and  waters;    (51  L.  R.  A.  660)   on  right  of  municipality  to  injunction 

against  public  nuisance;    (5  L.  R.  A.  663)   on  injunction  to  restrain  irreparable 

injury. 

Use   of  streets   by   railroads. 

Cited  in  Atty.  Gen.  ex  rel.  Bos.  &  M.  R.  Co.  v.  Derry  &  P.  Electric  R.  Co.  71 
N.  H.  515,  53  Atl.  443,  holding  authority  to  construct  railway  between  termini 
over  such  highways  as  may  be  necessary  for  public  accommodation  does  not  au- 
thorize construction  of  branch;  Daly  v.  Milwaukee  Electric  R.  &  Light  Co.  119 
\Vis.  401,  96  N.  W.  832,  holding  railway  company  liable  for  injury  to  person, 
due  to  unlawful  running  of  freight  cars  upon  street  railway  tracks. 

Cited  in  note  (2  L.  R.  A.  59)  on  right  to  use  of  public  streets  by  railroads. 

Distinguished  in  Watson  v.  Fairmont  &  Suburban  R.  Co.  49  W.  Va.  536,  39  S.  E 
193,  holding  franchise  to  construct  street  railway,  granted  by  city  under  powers 
delegated  by  legislature,  sufficient,  whether  authorized  by  charter  or  not. 
Injunction    nnaiiist    wrong;   remediable   by   act    of   complainant. 

Cited  in  Mackenzie  v.  Minis,  132  Ga.  332,  23  L.R.A.(N.S.)  1008,  63  S.  E.  900T 
16  A.  &  E.  Ann.  Cas.  723,  holding  that  an  injunction  would  lie  for  trespass 
though  plaintiff  could  have  forceably  removed  trespasser  and  his  goods. 

1  L.  R.  A.  377,  AMES  v.  HAGER,  13  Sawy.  473,  36  Fed.  129. 
.1  iii-i-d  i«-t  ii-ii    of    United    States    circuit    courts. 

Followed  in  East  Tennessee,  V.  &  G.  R.  Co.  v.  Atlanta  &  F.  R.  Co.  15  L.  R.  A. 
112,  49  Fed.  615,  holding  act  of  March  3,  1875,  §  1.  a  substitute  for  U.  S.  Rev. 
Stat.  §  629,  subds.  1-3,  U.  S.  Comp.  Stat.  1901,  p.  503,  prescribing  the  district 
in  which  to  sue. 

Cited  in  Johnson  v.  Wells,  F.  &  Co.  91  Fed.  3,  holding  that  circuit  court  can- 
not remove  from  state  court  case  under  revenue  acts  involving  less  than  $2,000. 

1  L.  R.  A.  378,  LAPLEINE  v.  MORGAN'S  L.  &  T.  R.  ft  S.  S.  CO.  40  La.  Ann. 

661,  4  So.  875. 

Judgment  used  in  evidence  in  Xeal  v.  Lapleino,  48  La.  Ann.  426,  19  So.  261. 
Wife  as  -witness  in  action  by  husband. 

Cited  in  Watson  v.  Lyons,  51  La.  Ann.  1699,  26  So.  440,  holding  mother  dis- 
qualified as  witness  in  suit  by  father  in  his  own  behalf  for  expense  and  mental 
suffering;  Watson  v.  Lyons,  51  La.  Ann.  1702,  26  So.  440,  and  St.  Louis,  I.  M.  & 
S.  R.  Co.  v.  Rexroad,  59  Ark.  184,  26  S.  W.  1037,  holding  wife  competent  in 
action  for  benefit  of  minor  child. 
Proximate  cause. 

Cited  in  Turner  v.  Nassau  Electric  R.  Co.  41  App.  Div.  216,  58  N.  Y.  Supp.  490r 
holding  injury  precipitating  delirium  tremens  proximate  cause  of  death;  Ran- 
dall v.  New  Orleans  &  N.  K.  R.  Co.  45  La.  Ann.  789,  13  So.  166,  holding  ejectment 
from  train  of  one  afterwards  seized  with  typhoid  not  proximate  cause  of  death; 
Seckinwr  v.  Philibert  &  J.  Mfg.  Co.  129  Mo.  606,  31  S.  W.  957,  holding  question 
whether  blow  on  chest  was  proximate  cause  of  consximption,  for  jury;  Pautz  v. 
Plankinton  Packing  Co.  118  Wis.  51,  94  N.  W.  654,  holding  defective  wooden 
wheel  transmitting  power  to  iron  wheel,  causing  latter  to  break,  proximate  cause 
of  injury  resulting  therefrom;  Parkinson  v.  Kertum,  148  Iowa,  222,  127  N.  W. 
208.  holding  that  bumping  of  plank  against  woman's  side  was  not  proximate 
cause  of  insanity  following  premature  delivery  of  child. 

Cited  in  footnote  to  Missouri  P.  R.  Co.  v.  Columbia,  58  L.  R.  A.  399,  which 
holds  piling  grain  doors  where  they  are  blown  onto  track  by  unusual  gale  not 
proximate  cause  of  wreck. 


1  L.R.A.  378]  L.  R.  A.  CASES  AS  AUTHORITIES.  90 

Cited  in  notes   (6  L.  R.  A.  194)   on  proximate  and  remote  cause  of  injury;    (7 

L.  R.  A.  132)   on  regarding  proximate,  not  remote,  cause  of  injury;    (8  L.  R.  A. 

83)   on  co-operating  causes  of  injury;    (5  L.  R.  A.  787)   on  supervening  causes  of 

injury;    (14  Am.  St.  Rep.  287;   36  Am.  St.  Rep.  829)   on  proximate  and  remote 
'  cause. 

Doty  of  care  to  passengers. 

Cited  in  note    (6  L.  R.  A.  244)    on  care  and  diligence  required  of  carriers  ot 

passengers. 

Previous    condition    as    affecting    recovery    for    negligent    injury. 

Cited  in  Bray  v.  Latham,  81  Ga.  644,  8  S.  E.  64,  holding  damages  recoverable 

for  aggravation  of  existing  disorder  by  tortious  burning  of  dwelling;  Jordan  v. 

Seattle,  30  Wash.  305,  70  Pac.  743,  holding  city  liable  for  proximate  consequence 

of  injury  caused  by  defective  sidewalks,  although  augmented  by  physical  condi- 
tion of  injured  person;  Louisville  &  N.  R.  Co.  v.  Daugherty,  32  Ky.  L.  Rep.  139ti. 
15  L.R.A.(N.S.)  744,  108  S.  W.  336,  holding  railroad  company  liable  when  by 
obstructing  street  it  caused  plaintiff,  a  sick  woman,  to  become  seriously  ill  be- 
cause of  such  exposure  though  she  would  not  have  been  affected  had  she  not 
been  sick. 

Cited   in   footnotes   to   Maguire  v.   Sheehan,   59   L.R.A.   496,   which   holds   that 

liability  for  injury  cannot  be  escaped  because  of  condition  produced  by  voluntary 
use  of  alcohol,  retarding  recovery;  Chicago  City  R.  Co.  v.  Saxby,  68  L.R.A.  164. 
•which  sustains  right  of  injured  person  to  recover  for  tuberculous  condition  of 

knee  resulting  from  injury,  notwithstanding  fact  that  tuberculosis  was  organic 
and  mistakes  in  treatment. 

Cited  in  notes    (16  L.  R.  A.  268,  269)    on  effect  of  previous  disease  of  person 

injured,  on  liability  for  injury;  (11  L.  R.  A.  44)  on  measure  of  damages  for  per- 
sonal injury  caused  by  negligence;  (69  L.R.A.  519)  on  care  due  to  sick,  infirm. 
or  helpless  persons,  with  whom  no  contract  relation  is  sustained;  (10  Am.  St. 
Rep.  65,  66)  on  previous  disease  of  person  injured  as  defense  or  mitigation  of 
•damages. 

1  L.  R.  A.  380,  WOODRUFF  v.  WOODRUFF,  44  N.  J.  Eq.  349,  16  Atl.  4. 
Construction    of    doubtful    clauses    in    deeds. 

Cited  in  Graves  v.  Deterling,  120  N.  Y.  455,  24  N.  E.  655,  construing  pro- 
vision in  deed  subjecting  land  to  burden  of  maintaining  park,  a  covenant:  Ely- 
ton  Land  Co.  v.  South  &  North  Ala.  R.  Co.  100  -Ala.  407,  14  So.  207,  refusing  to 
construe  proviso  in  deed  without  reservation  of  right  of  re-entry  as  a  condition 
subsequent;  Los  Angeles  University  v.  Swarth,  54  L.  R.  A.  265,  footnote,  p.  262. 
46  C.'  C.  A.  651,  107  Fed.  802,  holding  clause  in  deed  that  conveyance  on  express 
condition  that  land  shall  be  used  as  college  campus  a  covenant;  Diepenbrock  v. 
Luiz,  159  Cal.  719,  115  Pac.  743,  holding  that  where  lease  is  to  end  on  sale  of 
premises,  provided  lessor  pays  lessee  for  improvements,  such  proviso  is  condition 
to  termination  of  lease;  Silver  Springs,  0.  &  G.  R.  Co.  v.  Van  Xess,  45  Fla.  573, 
34  So.  884,  holding  that  in  determining  whether  a  clause  in  a  deed  is  a  covenant 
or  condition  the  entire  instrument  and  purposes  of  the  grant  will  be  considered 
to  ascertain  intent  of  parties  and  construction  most  favorable  to  grantee  will  be 
taken;  Mac  Kenzie  v.  Presbytery  of  Jersey  City,  67  X.  J.  Eq.  659,  3  L.R.A.(N.S.) 
232,  61  Atl.  1027,  holding  words  seemingly  appropriate  to  a  condition  only,  may 
introduce  a  covenant  as  well  and  the  entire  clause  must  be  considered  as  to  mean- 
ing of  the  words;  Buck  v.  Macon,  85  Miss.  582,  37  So.  460,  holding  a  deed  con- 
veying land  for  school  purposes  only,  is  not  forfeited  by  nonuser  for  two  and 
•one  half  years,  whether  the  deed  be  upon  condition  subsequent  or  not,  and  citing 


91  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  380 

annotation  also  on  this  point;  St.  Peter's  Church  v.  Bragaw,  144  N.  C.  129,  10 
L.R.A.  (X.S.)  636,  56  S.  E.  688,  holding  a  provision  in  a  deed  not  to  use  property 
as  cemetery  not  condition  subsequent  but  a  covenant  inforceable  in  equity; 
Minard  v.  Delaware.  L.  &  \Y.  R.  Co.  139  Fed.  63,  on  construction  of  entire  deed 
^md  words  therein  whether  in  form  of  condition  or  covenant,  as  constituting  a 
covenant  as  against  a  condition. 

Cited  in  notes  (12  Am.  St.  Rep.  819)  on  construction  of  deed;   (79  Am.  St.  Rep. 
750)  on  what  words  create  condition  subsequent. 
Ascertainment  of  price  as  condition   precedent. 

Distinguished  in  Howison  v.  Bartlett,  147  Ala.  413,  40  So.  757,  holding  survey 
by  a  chosen  surveyor  as  provided  in  agreement  not  condition  precedent  to  com- 
pletion of  contract. 
Delivery   and   acceptance  of  deed. 

Cited  in  note  (4  L.  R.  A.  313)  on  delivery  of  deed  essential  to  transfer  of  title. 
Acceptance  and  specific  performance  of  unilateral  or  option  contracts. 

Cited  in  Dynan  v.  McCulloch,  46  N.  J.  Eq.  16,  18  Atl.  822,  holding  filing  of  bill 
puts  complainant  under  obligation  to  perform  contract;  Say  ward  v.  Houghton, 
119  Cal.  548,  51  Pac.  854,  holding  lack  of  mutuality  removed  by  offer  to  per- 
form; Perry  v.  Paschal,  103  Ga.  137,  29  S.  E.  703,  decreeing  specific  perform- 
ance where  optional  vendee  tendered  agreed  purchase  price  of  land;  Ide  v.  Leiser, 
10  Mont.  12,  24  Am.  St.  Rep.  17,  24  Pac.  G95,  holding  option  extended  without 
consideration,  if  accepted  before  retraction,  binding  on  landowner;  Black  v. 
Mat'.dox,  104  Ga.  165,  30  S.  E.  723,  holding  tender  of  vendee's  assignee  sufficient 
to  entitle  him  to  specific  performance  of  contract  signed  by  vendor  only;  McPher- 
son  v.  Fargo,  10  S.  D.  618,  66  Am.  St.  Rep.  723,  74  S.  W.  1057,  holding  vendee's 
mere  failure  to  sign  contract  for  sale,  no  objection  to  its  enforcement;  Kerr  v. 
Moore.  6  Cal.  App.  307,  92  Pac.  107,  holding  that  where  vendee  without  vendor's 
objection  improved  land,  such  act  may  be  considered  in  determining  whether  the 
conveyance  is  of  a  character  warranting  specific  performance;  Elliott  v.  Delaney, 
217  Mo.  33,  116  S.  W.  494,  holding  that  consideration  for  an  option  to  support 
specific  performance  must  be  distinct  and  expressed  as  consideration  for  a  right 
to  purchase;  Pollock  v.  Brookover,  60  W.  Va.  79,  6  L.R.A.  (X.S.)  408,  53  S.  E. 
795,  holding  that  upon  payment  of  consideration  and  signing  of  option  it  becomes 
an  executed  contract  of  right  to  purchase  and  an  executory  agreement  to  pur- 
chase which  may  be  specifically  enforced  by  optionee;  Western  Timber  Co.  v. 
Kalama  River  Lumber  Co.  42  Wash.  628,  6  L.R.A.(X.S.)  401,  114  Am.  St.  Rep. 
137,  85  Pac.  338,  7  A.  &  E.  Ann.  Cas.  667,  holding  that  failure  of  purchaser  to 
sign  memorandum  of  agreement  for  sale  of  realty  does  not  prevent  specific  per- 
formance in  his  favor;  Armstrong  v.  Maryland  Coal  Co.  67  W.  Va.  603,  69  S.  E. 
395,  holding  that  vendee  cannot  claim  lack  of  mutuality  as  excuse  for  not  per- 
forming option  by  agent  of  owner  where  he  knows  that  vendor  is  agent;  Bride  v. 
Reeves.  36  App.  D.  C.  482,  granting  specific  performance  to  purchaser,  though 
contract  of  sale  contains  no  promise  to  pay  price. 

Annotation  cited  in  Lane  v.  Pacific  &  I.  X.  R.  Co.  8  Idaho,  238,  67  Pac.  656, 
holding  that  by  acceptance  and  action  under  contract  receiving  benefits  therefrom 
the  acceptor  impliedly  agrees  to  abide  by  the  covenants  therein. 

Cited  in  footnotes  to  Hodges  v.  Rowing,  7  L.R.A.  87,  which  holds  mere  failure 
of  vendor  to  sign  contract  not  fatal  to  enforcement;  Livesley  v.  Johnston,  65 
L.R.A.  783,  which  holds  that  specific  performance  of  contract  for  sale  of  hops 
will  not  be  refused  for  lack  of  mutuality  where  seller  would  have  been  entitled 
to  decree  for  specific  performance  on  purchaser's  capricious  and  fraudulent  refusal 
to  approve  the  hops;  Frank  v.  Stratford-Handcock,  67  L.R.A.  571,  which  holds 


1  L.R.A.  380]  L.  R.  A.  (ASKS  AS  AUTHORITIES.  92 

absence  of  obligation  of  one  having  option  to  purchase  land  to  make  the  pur- 
chase no  bar  to  his  right  to  have  contract  enforced  against  vendor. 

Cited  in  notes  (21  L.R.A.  131)  on  what  an  acceptance  of  an  option  is;   (6  L.R.A. 
(N.S.)    404)    on  right  to  specific  performance  of  option  as  affected  by  lack  of 
mutuality;   (118  Am.  St.  Rep.  596,  600)  on  specific  performance  of  options. 
Uncertainty   fatal  to  specific  performance. 

Cited  in  Edwards  v.  Rives,  35  Fla.  98,  17  So.  416,  holding  failure  of  proof  as- 
to  price  and  time  of  payment  of  contract  for  sale  of  land  fatal  to  specific  perform- 
ance; Park  v.  Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  114  Wis.  352,  89  N.  W. 
532,  refusing  specific  performance  of  contract  uncertain  in  terms  by  reason  of 
defendant's  fault;  Soloman  v.  Wilmington  Sewerage  Co.  142  N.  C.  447,  6  L.R.A 
(N.S.)  396,  55  S.  E.  300,  holding  that  a  contract  with  a  sewer  company  for  sewer 
service  not  binding  the  party  to  any  length  of  use  of  service  cannot  be  enforced 
specifically  against  the  company  for  lack  of  mutuality;  Huston  v.  Harrington, 
58  Wash.  54,  107  Pax:.  874,  refusing  specific  performance  of  contract  of  sale 
where  price  is  uncertain. 

Cited  in  footnote  t<.  Stanton  v.  Singleton,  47  L.  R.  A.  334,  which  refuses  to 
decree  specific  performance  for  lack  of  certainty  and  exactness  of  contract. 

1  L.  R.  A.  385,  PEOPLE  v.  WELCH,  71  Mich.  548,  39  N.  W.  747. 
Guilty  Intent  as  element  of  offense. 

Cited  in  People  v.  Hughes,  86  Mich.  185,  48  N.  W.  945,  holding  saloon  keeper 
not  liable  criminally  for  unknown  violation  of  law  by  his  clerk;  People  v.  Snow- 
berger,  113  Mich.  90,  67  Am.  St.  Rep.  449,  71  N.  W.  497,  holding  lack  of  guilty 
intent  no  excuse  for  selling  adulterated  food;  People  v.  Curtis,  129  Mich.  3,  95 
Am.  St.  Rep.  404,  87  N.  W.  1040,  holding  illegal  sale  of  liquor  to  minor  not  ex- 
cused by  absence  of  guilty  intent;  State  v.  Bradley,  15  S.  D.  152,  87  N.  W.  590, 
holding  that  good  faith  may  be  shown  in  prosecution  for  sale  of  liquor  to  minor, 
under  statute  making  sale  prima  facie  evidence  of  criminal  intent;  People  v. 
Bronner,  145  Mich.  401,  108  N.  W.  672,  holding  burden  of  proof  on  liquor  seller 
to  show  absence  of  guilty  intent  by  showing  that  minor  appeared  to  be  of  age  and 
that  they  were  warranted  and  did  believe  him  to  be  such;  People  v.  Lundell,  136 
Mich.  305,  99  N.  W.  12,  holding  saloon  keeper  liable  for  keeping  of  saloon  open 
during  prohibited  hours  by  his  bar  tender;  People  v.  Possing,  137  Mich.  304,  100 
N.  W.  396,  holding  saloon  keeper  liable  for  the  keeping  of  saloon  open  on  Sunday 
by  his  bartender  against  his  instructions;  Ollre  v.  State,  57  Tex.  Crim.  Rep.  543, 
123  S.  W.  1116  (dissenting  opinion),  on  liability  of  saloonkeeper  for  illegal  sales 
by  servant  against  instructions;  People  v.  Jewell,  138  Mich.  623,  101  N.  W.  835, 
on  power  to  make  statutes  declaring  an  act  criminal  in  the  absence  of  criminal 
intent. 

Cited  in  notes  (10  L.R.A.  80)  on  sale  of  liquor  to  minor;  (25  L.R.A.(X.S.)  670) 
on  ignorance  of  minority  of  purchaser  of  liquor  as  defense  to  prosecution  for 
sale;  (78  Am.  St.  Rep.  239,  240,  254)  on  criminal  intent  as  element  of  crime. 

1  L.  R.  A.  387,  TOPEKA  v.  ZUFALL,  40  Kan.  47,  19  Pac.  359. 
Question    for    jury    as    to    -whether    beverage    intoxicating. 

Cited  in  State  v.  Parker,  139  N.  C.  588,  51  S.  E.  1028,  holding  that  in  cases 
of  doubt  as  to  the  presence  of  alcohol  it  is  proper  to  leave  the  question  as  to  its 
presence  to  the  jury. 

Cited  in  notes  (2  L.  R.  A.  408;  20  L.  R.  A.  649)  on  what  liquors  are  intox- 
icating; (12  Am.  St.  Rep.  353)  on  determination  of  question  whether  liquor  is 
intoxicating. 


93  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  397 

Power  of  cities  over  excise   within   their  limits. 

Cited  in  Re  Thomas,  53  Kan.  661,  37  Pac.  171,  holding  cities  may  control 
traffic  within  their  limits  in  spite  of  state  prohibitory  and  restrictive  law;  El 
Dorado  v.  Beardsley,  53  Kan.  365,  36  Pac.  746,  sustaining  conviction  under  ordi- 
nance prohibiting  sale  of  intoxicating  liquors  without  permit;  Topeka  v.  Raynor, 
61  Kan.  12,  58  Pac.  557,  holding  ordinance  declaring  public  drinking  places  "nui- 
sances," constitutional. 

Cited  in  note  (17  L.R.A.(N.S.)  50)  on  power  of  municipality  to  punish  act  as 
to  liquor  also  an  offense  under  state  law. 

1   L.  R.  A.  388,  ROCKLAND  WATER  CO.  v.  CAMDEN  &  R.  WATER  CO.  80 

Me.  544,  15  Atl.  785. 
Impairing-    obligation    of    contracts. 

Cited  in  Machias  Boom  v.  Sullivan,  85  Me.  345,  27  Atl.  189,  holding  obligations 
not  impaired  by  exercise  of  rights  reserved  in  state  corporation  charter;  Dans- 
ville  v.  Dansville  Water  Co.  178  111.  317,  69  Am.  St.  Rep.  304,  53  N.  E.  118 
(dissenting  opinion),  majority  holding  legislature  may  regulate  water  rates  in 
spite  of  contract  between  city  and  water  company  under  act  authorizing  water- 
works construction. 

Cited  in  note    (50  L.  R.  A.   146)    on  privilege  of  using  streets  as  a  contract 
within  constitutional  provision. 
Strict   construction   of  legislative  grant. 

Cited  in  notes  (9  L.  R.  A.  34)  on  strict  construction  of  grant  of  corporate 
right  or  privilege;  (9  L.  R.  A.  195)  on  franchises  of  water  companies. 

Distinguished  in  Brown  v.  Gerald,  100  Me.  369,  70  L.R.A.  481,  109  Am.  St.  Rep. 
526,  61  Atl.  785,  holding  that  a  corporation  for  creation  of  electrical  or  water 
power  for  manufacturing  purposes  are  not  entitled  to  power  of  eminent  domain. 
Purposes  justifying  exercise  of  eminent  domain. 

Cited  in  note  (22  L.R.A.(N.S.)  139)  on  right  to  exercise  eminent  domain  for 
production  and  distribution  of  electricity  for  light,  heat  and  power. 

1   L.  R.  A.  397,  MERCANTILE  TRUST  CO.  v.  MISSOURI,  K.  &  T.  R.  CO.  36 
Fed.  221. 

Motion  to  extend  receivership,  consolidate  suits,  file  cross-bill,  etc.,  in  41  Fed.  8. 

Application  by  receiver  appointed  by  state  court  to  obtain  possession  of  prop- 
erty in  48  Fed.  352. 
Powers   of  trustee   as   to   foreclosure. 

Cited  in  Toler  v.  East  Tennessee,  V.  &  G.  R.  Co.  67  Fed.  179,  holding  trustee 
with  power  to  foreclose  may  exercise  power  against  vote  of  majority  bondholders; 
Farmers'  Loan  &  T.  Co.  v.  Penn  Plate-Glass  Co.  43  C.  C.  A.  116,  103  Fed.  133, 
holding  trustee  has  right  to  foreclose  mortgage  on  default,  without  express  grant; 
Guardian  Trust  Co.  v.  White  Cliffs  Portland  Cement  &  Chalk  Co.  109  Fed.  530, 
holding  provision  directing  trustee  to  foreclose  upon  bondholder's  request,  no 
limitation  on  trustee's  right  to  foreclose;  Boley  v.  Lake  Street  Elev.  R.  Co.  64 
111.  App.  313.  holding  restriction  on  bondholder's  right  to  sue  not  to  be  set  aside  in 
opposition  to  plain  meaning;  McFadden  v.  Mays  Landing  &  E.  H.  City  R.  Co. 
49  X.  J.  Eq.  188,  22  Atl.  932,  holding  trustee's  power  of  sequestration  and  sale 
under  mortgage,  cumulative;  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Texas  C.  R.  Co. 
137  U.  S.  192,  34  L.  ed.  632,  11  Sup.  Ct.  Rep.  61,  holding  power  of  sale  by 
advertisement  in  trustee  upon  bondholder's  request,  cumulative;  Low  v.  Black- 
ford,  31  C.  C.  A.  22,  58  U.  S.  App.  751,  87  Fed.  399,  holding  equity  court  not 
bound  to  decree  sale  in  strict  conformity  to  terms  of  mortgage;  Atlantic  Trust 


1  L.R.A.  397]  L.  R.  A.  CASES  AS  AUTHORITIES.  94 

Co.  v.  Dana,  62  C.  C.  A.  668,  128  Fed.  220,  holding  right  of  trustee  to  possession 
of  corporation  property  properly  asserted  by  obtaining  leave  to  intervene  in 
previous  creditor's  suit  in  which  receiver  was  in  possession. 

Distinguished   in   General   Electric   Co.   v.   La   Grande   Edison   Electric   Co.   70 
Fed.  25,  holding  bondholder  cannot  ignore  trustee  in  foreclosure. 
When    receiver   will   be   appointed. 

Cited  in  Pearson  v.  Kendrick.  74  Miss.  245.  21  So.  37,  holding  beneficiary  of 
deed  of  trust  on  property  subject  to  prior  lien  may  have  receiver  appointed 
where  security  precarious. 

Cited  in  footnote  to  Merritt  v.  Gibson,  15  L.  R.  A.  277,  which  holds  receiver 
may  be  appointed  after  foreclosure  sale,  where  mortgagee  is  purchaser. 

Cited  in  notes  (11  L.R.A.  480)  on  foreclosure  of  railroad  mortgage,  appointment 
of  receiver,  and  authority;    (72  Am.  St.  Rep.  88,  89)  as  to  when  appointment  of 
receiver  is  proper. 
When  foreclosure  suit  premature. 

Distinguished  in  Central  Trust  Co.  v.  Worcester  Cycle  Co.  35  C.  C.  A.  553, 
93  Fed.  718,  Reversing  90  Fed.  585.  holding  suit  brought  by  mortgage  trustee 
within  six  months  after  default,  premature. 

1  L.  R.  A.  403,  WATT  v.  PEOPLE,  126  111.  9,  18  N.  E.  340. 
Jurisdiction    of    crime    committed    in    several    counties. 

Cited  in  Chicago  v.  Knobel,  232  111.  114,  83  X.  E.  459,  on  selection  of  jurors 
from  county,  where  crime  was  committed. 

Cited  in  footnote  to  Coleman  v.  State,  64  L.  R.  A.  807,  which  holds  that  juris- 
diction of  court  first  acquiring  it,  exclusive,  where  courts  of  two  counties  have 
concurrent  jurisdiction  of  crime. 

Cited   in   note    (7   L.R.A.  (X.S.)    673)    on   power   to   provide   for   indictment   in 
county  or  district  other  than  where  crime  alleged  to  have  been  committed. 
\  il:ii  issiliilit  >•    of  evidence  because   of  relation   to   other   evidence. 

Cited  in  People  v.  Hughson,  154  N.  Y.  162,  47  X.  E.  1092,  holding  declaration 
of  deceased  that  husband  shot  her  admissible  to  show  effect  of  his  reply;  Musser 
v.  State,  157  Ind.  433,  61  X.  E.  1,  holding  evidence  competent  tending  to  connect 
with  homicide,  other  persons  present ;  Kingsbury  v.  People,  44  Colo.  406,  99  Pac. 
61,  holding  contradictory  letters  admissible  not  as  to  facts  contained  but  only 
as  throwing  light  on  conversation  accused  had  with  officer  of  prosecution;  People 
v.  Hughson,  12  N.  Y.  Crim.  Rep.  491,  admitting  declarations  made  by  another 
to  a  party,  to  be  taken  not  as  evidence  but  to  throw  light  on  the  answers  made 
thereto  in  court. 

Cited  in  note   (25  L.R.A.(X.S.)543,  549)   on  uncontradicted  statement  in  pres- 
ence of  accused  as  confession. 
Incompetent   evidence   not   prejudicial. 

Cited  in  Carter  v.  Carter,  37  111.  App.  225,  holding  conclusion  of  witness  that 
adultery  committed,  from  facts  testified  to,  ground  for  reversal. 

Cited  in  note  (46  L.  R.  A.  651)  on  unfair  or  irrelevant  argument  or  statements 
of  fact  by  prosecuting  attorney  must  be  prejudicial  to  reverse  conviction. 
Sufficiency  of  evidence. 

Cited  in  Scott  v.  People,  141  111.  215,  30  X.  E.  329,  holding  verdict  should  be 
sustained  where  evidence  sufficient  and  no  error  to  prejudice  defendant. 
Reasonable    donbt. 

Followed  in  McQueary  v.  People,  48  Colo.  224,  110  Pac.  210.  1  Ann.  Cas.  560; 
People  v.  Horchler,  231  111.  573,  83  X.  E.  428;  People  v.  Zajicek,  233  111.  216,  84 


95  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  412 

X.   E.   249,— holding  instruction   proper   advising  jurors   that   they   were  not   at 
liberty  to  disbelieve  as  jurors  if  from  the  evidence  they  believed  as  men. 

Cited  in  State  v.  Potts,  20  Xev.  398,  22  Pac.  754,  and  State  v.  Morrison,  67 
Kan.  162,  72  Pac.  554,  holding  instruction  as  to  reasonable  doubt  not  prejudicial. 

Cited  in  note   (17  L.  R.  A.  705,  710)   on  what  constitutes  a  reasonable  doubt 
in  criminal  cases. 
Comments  by  prosecution  on  failure  to  testify. 

Cited  in  Culwreath  v.  State,  96  Ark.  181,  131  S.  W.  676,  holding  that  state- 
ment that  accused  has  not  seen  fit  to  say,  nor  shown  where  he  was  at  time  of 
crime  is  not  comment  on  his  failure  to  testify;  Jackson  v.  State,  45  Fla.  40,  34 
So.  243,  3  A.  &  E.  Ann.  Cas.  164,  14  Am.  Crim.  Rep.  20,  holding  comment  on  fail- 
ure of  accused  to  testify  in  his  own  behalf,  in  good  faith  not  by  way  of  argument 
based  thereon,  by  state  counsel,  ground  for  reversal;  Lipsey  v.  People,  227  111. 
378,  81  N.  E.  348,  holding  that  remarks  made  by  prosecution  to  jury  on  conver- 
sation of  accused  with  police  officer  did  not  call  attention  of  jury  to  accused's 
failure  to  testify  in  his  own  behalf;  People  v.  McMahon,  244  111.  60.  91  N.  E. 
104,  holding  that  state's  attorney  may  state  that  evidence  of  people  is  uncontra- 
dicted,  though  accused  is  only  person  who  could  contradict  it;  R.  v.  Corby,  30  X. 
S.  333,  on  reference  to  failure  of  accused  to  testify  in  his  own  behalf  intended, 
to  direct  attention  of  jury  to  such  neglect. 

1  L.  R.  A.  411,  MISSOURI  P.  R.  CO.  v.  McELYEA,  71  Tex.  386,  10  Am.  St.  Rep. 

749,  9  S.  W.  313. 
Regulations   for   safe   conduct   of  hnsinesa. 

Cited  in  Wallace  v.  Boston  &  M.  R.  Co.  72  N.  H.  515,  57  Atl.  913,  holding 
master  not  relieved  from  duty  to  run  trains  safely  by  promulgation  of  suitable 
rules  and  appointment  of  telegraph  despatches  to  execute  them;  Beaumont,  S.  L. 
&  W.  R.  Co.  v.  Olmstead,  56  Tex.  Civ.  App.  104,  120  S.  W.  596,  holding  correct 
charge  that  railroad  was  under  duty  to  conductor  to  exercise  reasonable  care  to 
see  that  bridges  were  reasonably  safe. 

Cited  in  notes  (43  L.  R.  A.  342)  on  the  relation  between  the  doctrine  of  com- 
mon employment  and  the  duty  of  master  to  promulgate  rules  for  safe  conduct 
of  business;  (54  L.  R.  A.  90)  on  how  far  non-delegable  duty  to  carry  out  regula- 
tion of  master  absolute. 

1  L.  R.  A.  412,  VALLEY  R.  CO.  v.  LAKE  ERIE  IRON  CO.  46  Ohio  St.  44,  IS 

N.  E.  486. 
Indeflniteness     in     pleading. 

Cited  in  Golley  &  F.  Iron  Works  v.  Callan,  9  Ohio  C.  C.  221,  holding  pleading- 
in  action  for  negligence  sufficient  to  enable  testimony  to  go  to  jury. 
Ultra  vires  dealings  in  stock  of  other  corporations  or  associations. 

Cited  in  Merchants'  Nat.  Bank  v.  Standard  Wagon  Co.  6  Ohio  N.  P.  268,  holding 
corporation  could  not  form  partnership;  Knowles  v.  Sandercock,  107  Cal.  643, 
40  Pac.  1047,  holding  furniture  corporation  could  not  subscribe  to  stock  of  hotel 
corporation;  McAlester  Mfg.  Co.  v.  Florence  Cotton  &  Iron  Co.  128  Ala.  241, 
30  So.  632,  holding  corporation  authorized  to  invest  loan  money  not  permitted 
to  subscribe  to  stock  of  other  corporation;  Marburg  v.  Kentucky  Union  Land 
Co.  10  C.  C.  A.  410,  22  U.  S.  App.  267,  62  Fed.  351,  holding  land  company  could 
not  organize  and  take  all  stock  of  subsidiary  companies;  Nebraska  Shirt  Co.  v. 
Horton,  3  Neb.  (Unof.)  889,  93  N.  W.  225,  holding  that  unless  authorized  by 
statute  a  corporation  has  no  power  to  subscribe  to  capital  stock  of  another  cor- 
poration and  such  a  subscription  is  not  binding;  State  v.  Hocking  Valley  R.  Co.. 


1  L.R.A.  412]  L.  R.  A.  CASES  AS  AUTHORITIES.  00 

12  Ohio  C.  C.  N.  S.  56,  holding  that  statute  governing  right  of  a  corporation  to 
purchase  stock  in  another,  must  be  strictly  construed  against  the  right;  Man- 
nington  v.  Hocking  Valley  R.  Co.  183  Fed.  156,  on  power  of  foreign  corporation  to 
purchase  stock  in  another  corporation  in  the  state;  De  Lacroix  v.  Eid  Concrete 
Steel  Co.  8  Ohio  N.  P.  N.  S.  507,  19  Ohio  S.  &  C.  P.  Dec.  781,  holding  that  result- 
ing trust  in  favor  of  corporation  does  not  arise  where  stockholder  buys  stock 
from  another  stockholder  for  benefit  of  corporation  for  purpose  of  retiring  him 
as  officer  of  the  corporation. 

Cited  in  notes  (7  L.  R.  A.  606;  18  L.  R.  A.  252)  upon  power  of  corporation  to 
deal  in  stock  of  other  corporations;  (70  Am.  St.  Rep.  165)  on  ultra  vires  purchase 
by  corporation  of  its  own  or  another  corporation's  stock;  (41  L.  ed.  U.  S.  1010; 
36  Am.  St.  Rep.  135)  on  right  to  acquire  stock  in  another  corporation;  (18 
L.R.A.  252)  on  power  of  corporation  to  deal  in  stock. 

Distinguished  in  Smith  v.  Newark,  S.  &  S.  R.  Co.  8  Ohio  C.  C.  591,  holding 
corporation  liable  for  assessments  on  stock  of  another  corporation  owned  by  it; 
Central  Trust  Co.  v.  Columbus,  H,  Valley  &  T.  R.  Co.  87  Fed.  826,  holding  com- 
pany with  power  to  purchase  or  subscribe  for  stock  of  transportation  company 
may  guarantee  bonds  of  existing  railway;  Stone  v.  C.  D.  &  T.  Traction  Co.  4 
Ohio  N.  P.  N.  S.  109,  16  Ohio  S.  &  C.  P.  Dec.  650,  holding  that  corporations  may 
hold  stock  in  mutual  insurance  association  for  their  own  protection;  Marriott  v. 
Columbus,  S.  &  H.  Ry.  16  Ohio  S.  &  C.  P.  Dec.  141,  holding  that  corporation  may 
take  stock  in  another  corporation  as  payment  for  loan  made  to  it  in  furtherance 
of  the  business  of  the  lending  corporation. 
Recovery  of  voluntary  payments. 

Cited  in  Phillips  v.  McConica,  59  Ohio  St.  10.  69  Am.  St.  Rep.  753,  51  N.  E. 
445,  holding  payment  of  legacy  by  executor  to  guardian  not  recoverable;  Kinney 
v.  Toledo,  1  Ohio  N.  P.  376,  holding  payment  of  fines  by  policeman,  imposed  by 
police  board,  not  recoverable;  Evans  v.  Hughes  County,  3  S.  D.  253,  52  N.  W. 
1062,  holding  payment  made  for  ferry  privilege  under  void  statute  not  recover- 
able; Vindicator  Printing  Co.  v.  State,  68  Ohio  St.  371,  67  X.  E.  733,  denying 
right  of  county  to  recover  money  voluntarily  paid  on  illegal  claim  for  printing; 
Payne  v.  Witherbee,  S.  &  Co.  200  N.  Y.  576,  93  N.  E.  954,  holding  that  money 
paid  by  corporation  under  mistake  of  law  cannot  be  recovered  back, 

1  L.  R.  A.  414,  SNELL  v.  LEVITT,  110  N.  Y.  395,  18  N.  E.  370. 
Creation  of  easement. 

Cited  in  footnote  to  Gulf,  C.  &  S.  F.  R.  Co.  v.  Smith,  2  L.  R.  A.  281,  which 
holds  covenant  running  with  land  not  created  by  stipulation  to  maintain  fence. 
Von  user  jis  affecting?  easement. 

Cited  in  Johnson  v.  Stitt,  21  R.  I.  433,  44  Atl.  513,  and  Tyler  v.  Cooper,  47 
Hun,  95,  holding  easement  by  grant  not  lost  by  nonuser;  Marshall  v.  Wennin- 
ger, 20  Misc.  529,  46  N.  Y.  Supp.  670,  holding  mere  nonuser  not  abandonment  of 
right  of  way  destroying  marketability  of  title;  Roby  v.  New  York  C.  &  H.  R.  R. 
Co.  142  N.  Y.  181,  36  N.  E.  1053,  holding  lease  of  railroad  for  coal  yards  and 
trestle  not  evidence  of  abandonment  of  easement  for  railroad;  Heughes  v.  Ga- 
lusha  Stove  Co.  133  App.  Div.  819,  118  N.  Y.  Supp.  109,  on  nonuser  of  alleys  as 
not  operating  to  extinguish  easement  therein;  Lewisohn  v.  Lansing  Co.  51  Misc. 
282,  100  N.  Y.  Supp.  1077,  holding  occupation  of  and  nonrecognition  of  existence 
of  a  street  an  abandonment  of  easement  therein  which  cannot  be  revived  by  sub- 
sequent purchaser  of  adjourning  lots  many  years  later. 

Limited  and  distinguished  in  Welsh  v.  Taylor,  134  N.  Y.  453,  18  L.  R.  A.  538, 
31  N.  E.  896,  Reversing  27  N.  Y.  S.  R.  301,  7  N.  Y.  Supp.  376,  holding  easement 
in  way  by  grant  not  lost  by  mere  nonuser. 


97  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  414 

Intention  to  abandon  easement  or  right  in  land. 

Cited  in  Suydam  v.  Dunton,  84  Hun,  509,  32  N.  Y.  Supp.  333,  holding  non- 
user,  with  acts  showing  intention  to  abandon,  destroyed  easement  of  way  over 
farm;  Weed  v.  McKeg,  37  Misc.  110,  74  N.  Y.  Supp.  250,  holding  acquiescence  by 
owner  of  right  of  way  in  obstruction  over  alley  way  shown;  Lake  Erie  &  W.  R. 
Co.  v.  Ziebarth,  6  Ind.  App.  236,  33  N.  E.  256,  holding  intention  to  abandon  ease- 
ment shown  by  locating  line  over  other  land;  White  v.  Manhattan  R.  Co.  139  N. 
Y.  26,  34  N.  E.  887,  and  Hoch  v.  Metropolitan  Elev.  R.  Co.  59  Hun,  543,  13  N.  Y. 
Supp.  633,  holding  street  easements  abandoned  by  authorizing  construction  of 
elevated  railroad;  Black  v.  Elkhorn  Min.  Co.  163  U.  S.  450,  41  L.  ed.  223,  16  Sup. 
Ct.  Rep.  1101,  holding  rights  in  mining  claim  abandoned  by  conveyance  and 
surrender  of  possession;  Hennessy  v.  Murdock,  137  N.  Y.  326,  33  N.  E.  330, 
Reversing  43  N.  Y.  S.  R.  750,  17  N.  Y.  Supp.  276,  holding  evidence  of  intent  to 
abandon  easement  must  be  clear  and  convincing;  Bell  v.  New  York,  77  App.  Div. 
452,  79  N.  Y.  Supp.  347,  holding  right  to  locate  public  basin  at  certain  point 
abandoned  by  city  by  consent  to  construction  of  pier  and  acquiescence  in  its  use 
for  fifty  years ;  Deeves  v.  Constable,  87  App.  Div.  358,  84  N.  Y.  Supp.  592,  holding 
erection  of  business  block  on  half  of  lot  in  former  residential  district  inconsistent 
with  covenant  requiring  building  on  other  half  to  set  back  from  street;  Blenia 
v.  Utica  Knitting  Co.  73  Misc.  68,  130  N.  Y.  Supp.  740,, holding  that  easement  in 
alley  is  not  extinguished  by  nonuser  for  less  than  twenty  years  without  inten- 
tion of  abandoning  it;  Norris  v.  Hoffman,  133  App.  Div.  599,  118  N.  Y.  Supp.  156, 
holding  an  easement  created  by  reservation  in  deed  was  extinguished  by  lessor 
to  use  connected  with  an  intention  to  abandon  no  matter  for  how  short  a  time 
such  circumstances  existed;  Re  Buffalo,  65  Misc.  642,  120  N.  Y.  Supp.  611,  hold- 
ing that  where  there  is  a  nonuser  for  twenty  years  coupled  with  acts  showing 
intent  to  abandon,  on  which  the  servient  owner  has  acted,  and  resuming  of 
easement  would  operate  unjustly  added  weight  given  to  extinguishment  by  the 
acts  of  the  servient  owner;  Watts  v.  C.  I.  Johnson  &  B.  Real  Estate  Corp.  105 
Va.  525,  54  S.  E.  317,  holding  nonuser  of  alley  as  a  right  of  way  is  not  an 
abandonment  where  it  is  used  to  admit  light  and  air  and  a  sewer  is  maintained 
thereunder;  Farrell  v.  Lockhart,  210  U.  S.  148,  52  L.  ed.  997,  16  L.R.A.  (N.S.) 
167,  28  Sup.  Ct.  Rep.  681,  holding  that  where  annual  labor  has  not  been  done  on  a 
mineral  claim,  such  fact  is  not  conclusive  of  abandonment  before  statutory  period 
has  expired  in  which  the  work  may  be  done. 

Cited  in  notes  (18  L.R.A.  539)  on  intention  of  owner  of  easement  to  abandon 
it  as  indicated  by  his  acts;  (2  L.R.A.(N.S.)  833)  on  failure  to  maintain  easement 
as  raising  presumption  of  abandonment. 

Distinguished  in  Foote  v.  Metropolitan  Elev.  R.  Co.  147  N.  Y.  371,  42  N.  E.  181, 
holding  intent  to  abandon  street  easements  acquired  by  grant  not  shown  by  un- 
recorded  instrument  reserving  to  prior  owner  right  to  damages  from  construc- 
tion of  elevated  road. 
Adverse  nser  as  affecting1  easement. 

Cited  in  Woodruff  v.  Paddock,  130  N.  Y.  624,  29  N.  E.  1021,  Affirming  56  Hun, 
291,  9  N.  Y.  Supp.  381,  holding  abutting  owner's  public  right  in  alley  lost  by 
adverse  possession;  Re  New  York,  73  App.  Div.  399,  77  N.  Y.  Supp.  31;  holding 
abandonment  indicated  by  nonuser  of  implied  easement  in  street,  with  adverse 
user  of  2  feet  of  it  covered  by  house  and  fence;  Stephens  v.  Hockemeyer,  46  N.  Y. 
S.  R.  330,  19  N.  Y.  Supp.  666,  holding  adverse  user  for  twenty  years  of  lots  for 
stable  purposes  will  destroy  easement;  Lewis  v.  Xew  York  &  H.  R.  Co.  162  N. 
Y.  224,  56  N.  E.  540,  holding  railroad  acquired  prescriptive  rights  by  adverse 
as  against  abutting  owners,  to  maintain  viaduct. 
L.R.A.  Au.  Vol.  I.— 7. 


1  L.R.A.  414]  L.  R.  A.  CASES  AS  AUTHORITIES.  9& 

Failure  to   record. 

Cited  in  Shaw  v.  New  York  Elev.  R.  Co.  78  App.  Div.  298,  79  N.  Y.  Supp.  915, 
holding  grantee  not  bound  by  unrecorded  consent  to  construction  of  elevated  rail- 
road in  front  of  granted  premises. 
Title    l>y    prescription. 

Cited  in  Hindley  v.  Metropolitan  Elev.  R.  Co.  42  Misc.  65,  85  N.  Y.  Supp.  561,. 
holding  title  by  prescription  defeated  by  recognition  of  dormant  title  within 
statutory  period.  • 

1   L.  R.  A.  417,  FIRE  INS.  PATROL  v.  BOYD,   120  Pa.  624,   6  Am.   St.  Rep. 

745,  15  Atl.  553. 
Test   of  legal   public  charity. 

Cited  in  Northampton  County  v.  Lafayette  College,  128  Pa.  147,  18  Atl.  516r 
24  W.  N.  C.  523,  holding  eleemosynary  college,  maintained  partly  by  tuition  fees, 
exempt  from  taxation;  Episcopal  Academy  v.  Philadelphia,  150  Pa.  573,  30  W. 
N.  C.  531,  25  Atl.  55,  holding  nonexclusive  denominational  school  a  public  char- 
ity; Smith's  Estate,  181  Pa.  113,  37  Atl.  114,  Affirming  18  Pa.  Co.  Ct.  212,  5  Pa. 
Dist.  R.  329,  holding  war  memorial  monument  containing  name  and  bronze  stat- 
ute of  giver,  public  charity;  Stuart  v.  Easton,  21  C.  C.  A.  151,  39  U.  S.  App.  238, 
74  Fed.  858,  holding  grant  of  lands  for  courthouse  gift  for  charitable  use;  State 
v.  Laramie  County,  8  \Yyo.  131,  55  Pac.  451,  holding  state  penitentiary  exempt 
from  taxation  as  charitable  institution;  People  ex  rel.  State  Board  of  Charities 
v.  New  York  Soc.  for  Prevention  of  Cruelty  to  Children,  161  N.  Y.  242,  55  N.  E. 
1063,  Reversing  42  App.  Div.  85,  58  N.  Y.  Supp.  953,  holding  society  for  preven- 
tion of  cruelty  to  children  not  charitable;  Philadelphia  v.  Masonic  Home,  160 
Pa.  582,  23  L.  R.  A.  549,  40  Am.  St.  Rep.  736,  28  Atl.  954,  holding  home  limited 
to  use  of  Free  Masons  not  a  public  charity;  Re  Apprentices'  Fund  Case,  13  Pa.  Co. 
Ct.  245,  2  Pa.  Dist.  R.  438,  holding  gift  to  city  for  public  works,  public  charity; 
Haverford  College  v.  Rhoads,  6  Pa.  Super.  Ct.  81,  holding  nonsectarian  college, 
open  to  all  persons  educationally  qualified,  charitable  institution ;  Funck's  Es- 
tate, 16  Pa.  Super.  Ct.  438,  holding  devise  of  burial  ground  for  burial  purposes 
forever,  passed  estate  in  fee  simple  in  trust  for  charitable  use;  Com.  v.  Con- 
nellsburg,  25  Pa.  Co.  Ct.  436,  holding  grant  of  land  to  town  for  the  use  of  its 
inhabitants,  gift  to  charitable  use;  Parks  v.  Northwestern  University,  121  111. 
App.  514,  holding  a  university  dependent  upon  trust  funds  and  incidental  tuition 
fees  for  maintenance  alone  a  public  charity;  Richardson  v.  Mullery.  200  Mass. 
249,  86  X.  E.  319,  holding  a  gift  "to  a  life  saving  station  to  be  built,"  the  bene- 
fits therefrom  to  extend  generally  to  all  classes  for  whom  it  is  to  be  built,  is 
for  establishment  of  a  public  charity;  Barden  v.  Atlantic  Coast  Line  R.  Co.  152 
N.  C.  328,  67  S.  E.  971,  holding  a  railroad  relief  department  maintained  for  a 
charitable  purpose,  a  charity  though  its  purpose  was  not  in  the  gift  itself  de- 
scribed as  charitable;  Hebrew  Free  Loan  Asso.  v.  Philadelphia,  18  Pa.  Dist.  R. 
1071,  holding  society  to  loan  money  without  interest  to  needy  and  worthy 
Hebrews  was  a  charity. 

Cited  in  footnotes  to  Crerar  v.  Williams,  21  L.  K.  A.  454,  which  holds  gift  for 
free  public  library  charitable;  People  ex  rel.  Atty.  Gen.  v.  Dashaway  Asso.  12" 
L.  R.  A.  117,  which  refuses  to  hold  corporation  for  promoting  the  cause  of  tem- 
perance as  public  charity  to  prevent  division  of  funds  among  its  members;  Kelly 
v.  Nichols,  19  L.  R.  A.  413,  which  holds  trust  to  keep  graves  of  testator  and  his 
sisters  in  repair  not  charitable  use;  Childs  v.  Firemen's  Ins.  Co.  35  L.  R.  A.  99, 
which  construes  "boards  of  fire  underwriters"  to  mean  boards  composed  only  of 
those  in  business  of  fire  insurance. 

Cited  in  notes  (3  L.  R.  A.  147;  5  L.  R.  A.  106;  6  L.  R.  A.  84)  on  what  consti- 


99  L.  R.  A.  CASES  AS  AUTHORIT1 1>.  [1  L.R.A.  41T 

tutes  public  charities;    (16  L.R.A.(N.S.)   847)   on  effect  of  devotion  of  property 
otherwise  nontaxable  to  purposes  of  particular  society. 

Distinguished   in  Xewcomb  v.   Boston  Protective  Department,   151  Mass.  218, 
G  L.  R.  A.  780,  24  N.  E.  39,  holding  life  and  property  saving  corporation  with 
limited  membership  not  public  charity. 
Statute   of   charitable   uses. 

Cited  in  footnotes  to  Adams  Female  Academy  v.  Adams,  6  L.  R.  A.  785,  which' 
holds  fund  to  establish  female  academy  may  be  used  for  support  of  public  school ; 
Re  Sellers  Chapel,  M.  E.  Church,  11  L.  R.  A.  282,  which  holds  conveyance  of  land: 
to  trustees  for  charitable  use  only  creates  trust  for  such  use. 

Cited  in  notes  (3  L.  R.  A.  146)  on  charitable  trusts  under  the  statute;  (5 
L.  R.  A.  33)  on  public  charities,  statute  of  uses  and  trusts;  (12  L.  R.  A.  415) 
on  charitable  uses  and  trusts;  (5  L.  R.  A.  34)  on  distinction  between  charitable 
and  other  uses;  (5  L.  R.  A.  41)  on  where  beneficiary  ascertainable;  (5  L.  R.  A. 
42)  on  beneficiary  not  in  being;  (5  L.  R.  A.  37;  6  L.  R.  A.  511)  on  what  are 
charitable  gifts;  (4  L.  R.  A.  700)  on  "gifts  to  public  charities  are  highly  favored 
by  the  law;"  (5  L.  R.  A.  109)  on  purposes  of  trust;  when  separable,  the  valid 
may  be  sustained;  (13  L.  R.  A.  218)  on  municipal  corporation  may  take  and  ad- 
minister property  in  trust  for  charitable  uses;  (14  L.R.A.(X.S.)  57)  on  enforce- 
ment of  general  bequest  for  charity  or  religion;  (63  Am.  St.  Rep.  250)  on  what 
are  charitable  uses  or  trusts. 
Perpetuities. 

Cited  in  footnote  to  Penny  v.  Croul,  5  L.  R.  A.  858,  which  holds  gift  of  per- 
petual fund  for  use  of  public  corporation  valid. 

Cited  in  notes  (1  L.  R.  A.  454)  on  application  of  statute  against  perpetuities; 
(5  L.  R.  A.  35)  on  law  against  perpetuities;  no  application  to  charitable  trusts. 
Nonliability  of  public  or  charitable  corporation  for  negligence. 

Approved  in  Gable  v.  Sisters  of  St.  Francis,  227  Pa.  258,  75  Atl.  1087,  holding 
trust  funds  of  a  charity  not  subject  to  dissipation  in  damage  suits  for  negligence 
of  servants. 

Cited  in  Sproat  v.  Directors  of  Poor,  145  Pa.  604,  29  W.  N.  C.  463,  23  Atl.  380, 
raising,  but  not  deciding,  question  of  liability  of  public  charity  for  tort  of  em- 
ployee; Kies  v.  Erie,  135  Pa.  150,  26  W.  N.  C.  531,  20  Am.  St.  Rep.  867,  19  AtL 
942,  holding  city  not  liable  for  negligence  of  fireman;  Joel  v.  Woman's  Hospital,. 
89  Hun,  74,  35  N.  Y.  Supp.  37;  Union  P.  R.  Co.  v.  Artist,  23  L.  R.  A.  584,  9- 
C.  C.  A.  18,  19  U.  S.  App.  612,  60  Fed.  368;  Hearns  v.  Waterbury  Hospital,  66- 
Conn.  121,  31  L.R.A.  231,  33  Atl.  595, — holding  charitable  hospital  not  liable 
to  patient  for  negligent  treatment  by  its  servants  selected  with  due  care;  Collins 
v.  New  York  Post  Graduate  Medical  School  &  Hospital,  59  App.  Div.  66,  69  N. 
Y.  Supp.  106,  holding  charitable  hospital  not  liable  to  pay  patient  for  surgeon'* 
negligence-  Williams  v.  Indianapolis,  20  Ind.  App.  630,  60  N.  E.  367,  holding 
city  not  liable  for  negligence  of  physician  in  city  hospital;  Richardson  v.  Car- 
bon Hill  Coal  Co.  10  Wash.  656,  39  Pac.  95,  and' Pittsburgh,  C.  C.  &  St.  L.  R.  Co.. 
v.  Sullivan,  141  Ind.  91,  27  L.  R.  A.  843,  50  Am.  St.  Rep.  313,  40  X.  E.  138r 
holding  corporation  not  liable  for  negligence  of  physician  selected  with  care,  for- 
gratuitous  service  to  injured  employees;  Haas  v.  Missionary  Soc.  of  Most  Holy- 
Redeemer,  6  Misc.  285,  26  X.  Y.  Supp.  868.  holding  religious  corporation  not 
liable  for  negligence  of  employee  selected  with  due  care;  Haggerty  v.  St.  Louis, 
K.  &  X.  W.  R.  Co.  100  Mo.  App.  446,  74  S.  W.  456,  holding  railroad  liable  for 
ncirlicrence  of  surgeon  employed  by  it  to  treat  member  of  employees'  relief  de- 
partment; Peasley  v.  McKean  County  Poor  District,  26  Pa.  Co.  Ct.  431,  holding' 
poor  district  not  liable  for  negligence  of  its  physician  in  treating  inmate  of 


1  L.R.A.  417]  L.  R.  A.  CASES  AS  AUTHORITIES.  100 

poor  house;  Lilly  v.  Scranton,  2  Lack.  Legal  Xews,  176,  18  Pa.  Co.  Ct.  434,  hold- 
ing city  not  liable  for  acts  of  policemen  or  firemen;  Brown  v.  La  Societe  Fran- 
eaise  Bienfaisance  Mutuelle,  138  Cal.  476,  71  Pac.  516,  holding  mutual  benefit 
society  conducting  private  hospital  liable  to  pay  patient  for  negligence  of  sur- 
geon; Workman  v.  New  York,  179  U.  S.  580,  45  L.  ed.  328,  21  Sup.  Ct.  Rep.  212 
(dissenting  opinion),  majority  holding  public  nature  of  service  by  fire-boat  not 
relieve  city  from  liability  for  maritime  tort;  Arkansas  Midland  R.  Co.  v.  Pearson, 
98  Ark.  411,  34  L.R.A.(N.S.)  320,  135  S.  W.  917,  holding  railroad,  gratuitously 
collecting  fund  from  wages  for  medical  attention  to  employees,  not  liable  for 
death  of  employee  from  failure  to  furnish  him  proper  medical  attention;  Texas 
C.  R.  Co.  v.  Zumwalt,  103  Tex.  606,  30  L.R.A.(X.S.)  1209,  132  S.  W.  113,  holding 
railroad  maintaining  hospital  for  employees  not  liable  for  loss  of  sight  of  em- 
ployee by  negligence  of  surgeon;  Hordern  v.  Salvation  Army,  199  X.  Y.  235,  32 
L.R.A.(ISr.S.)  64,  139  Am.  St.  Rep.  889,  92  N.  E.  626,  holding  salvation  army  liable 
for  injury  to  mechanic  in  repairing  boiler;  Fordyce  v.  Woman's  Christian  Xat. 
Library  Asso.  79  Ark.  562,  7  L.R.A.(N.S.)  490,  96  S.  W.  155,  holding  property  of 
charitable  library  not  subject  to  execution  in  satisfaction  of  judgment  against 
agents  or  trustees  for  wrong  or  misdoing;  Farrigan  v.  Pevear.  193  Mass.  149,  7 
L.R.A.(X.S.)  483,  118  Am.  St.  Rep.  484,  78  X.  E.  855,  8  A.  &  E.  Ann.  Cas.  1109, 
holding  charitable  institution  not  liable  for  injury  to  one  servant  through  negli- 
gent orders  given  him  by  another  servant,  where  due  care  has  been  used  in  selec- 
tion of  servants;  Abston  v.  Waldon  Academy,  118  Tenn.  33,  11  L.R.A.(X.S.)  1181, 
102  S.  W.  351,  holding  the  corpus  of  the  charity  could  not  be  applied  in  damages 
to  pay  a  paying  pupil  injured  for  want  of  fire  escapes;  Leavell  v.  Western 
Kentucky  Asylum,  122  Ky.  216,  4  L.R.A.(N.S.)  270,  91  S.  W.  671,  12  A.  &  E. 
Ann.  Cas.  827;  Plant  System  Relief  &  Hospital  Dept.  v.  Dickerson,  118  Ga.  650, 
45  S.  E.  483, — on  nonliability  of  charitable  institutions  for  negligence  of  agents; 
Adams  v.  University  Hospital,  122  Mo.  App.  686,  99  S.  W.  453,  on  nonliability  of 
charitable  institutions  for  negligence  of  servants  or  negligence  in  their  selection; 
Wliittaker  v.  St.  Luke's  Hospital,  137  Mo.  App.  139,  117  S.  W.  1189,  as  instance 
of  exoneration  of  charitable  institution  for  negligence  of  servants  based  on  its 
fulfilment  of  a  governmental  agency. 

Cited  in  notes  (1  L.  R.  A.  608)  on  doctrine  of  respondent  superior;  (7  L.  R. 
A.  170)  on  public  agencies  not  liable  for  negligence  of  their  servants;  (2  L.R.A. 
(X.S.)  558)  on  what  are,  charitable  institutions  within  rule  exempting  from  lia- 
bility for  negligence;  (21  L.R.A.(X.S.)  810)  on  liability  of  fire  insurance  patrol 
for  injuries;  (54  Am.  St.  Rep.  92)  on  nonliability  of  municipal  and  private  corpo- 
rations for  acts  of  servant;  (139  Am.  St.  Rep.  907)  on  liability  of  charitable  in- 
stitution for  torts  of  servants  and  agents. 

Distinguished  in  Xewcomb  v.  Boston  Protective  Department,  151  Mass.  218, 
6  L.  R.  A.  780,  24  N.  E.  39,  holding  life  and  property  saving  corporation  with 
limited  membership  liable  for  negligence  of  employees;  Winnemore  v.  Philadel- 
phia, 18  Pa.  Super.  Ct.  631,  holding  damages  due  to  operation  of  elevator  of 
income  producing  building  devoted  to  maintenance  of  charity,  chargeable  to  ex- 
pense of  management  thereof;  Coleman  v.  Fire  Ins.  Patrol,  122  La.  638.  21  L.R.A. 
(X.S.)  815,  48  So.  130,  16  A.  &  E.  Ann.  Cas.  1217,  holding  a  fire  insurance  patrol 
entirely  maintained  by  insurance  companies  for  purpose  of  minimizing  fire  loss 
is  not  a  charitable  corporation  and  is  liable  for  negligence  of  servants;  Bruce  v. 
Central  M.  E.  Church,  147  Mich.  241,  10  L.R.A.(X.S-)  78,  110  X.  W.  951,  11  A.  & 
E.  Ann.  Cas.  150,  where  neither  the  institution  nor  its  offending  servants  are 
acting  in  a  charitable  or  governmental  capacity;  Hewett  v.  Woman's  Hospital  Aid 
Asso.  73  N.  H.  565,  7  L.R.A.(N.S.)  499,  64  Atl.  190,  holding  that  because  a  hos- 


101  L.  E.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  425 

pital  is  conducted  as  a  charitable  institution  without  expectation  of  profits  is  no 
excuse  or  exoneration  for  injury  caused  its  servants  by  negligence. 
Nonliability    of   charitable    property    to    process. 

Cited  in  Fire  Ins.  Patrol  v.  Boyd,  19  Phila.  266,  holding  property  of  corporation 
existing  to  protect  life  and  property  cannot  be  taken  in  execution  and  sold  piece- 
meal. 

1  L.  R.  A.  422,  SHEA'S  APPEAL,  121  Pa.  302,  15  Atl.  629. 
Antenuptial   contracts. 

Cited  in  Barker  v.  Barker,  126  Ala.  509,  28  So.  587.  and  Warner's  Estate,  33 
Pittsb.  L.  J.  N.  S.  430,  holding  contract  depriving  wife  of  interest  in  husband's 
estate  without  adequate  compensation,  signed  in  reliance  on  husband's  represen- 
tations, void;  Hinkle  v.  Hinkle,  34  W.  Va.  151,  11  S.  E.  993,  holding  contract 
releasing  right  in  husband's  estate,  made  by  illiterate  woman,  without  explana- 
tion and  containing  no  provision  for  her,  not  bar  to  dower. 

Distinguished  in  Xeely's  Appeal,  124  Pa.  424,  10  Am.  St.  Rep.  594,  16  Atl.  883, 
holding  provision  in  antenuptial  contract  disproportionate  to  husband's  estate, 
not  in  fraud  of  wife  signing  with  full  knowledge  of  facts,  though  unwillingly. 

Disapproved  in  effect  in  Spurlock  v.  Brown,  91  Tenn.  255,  18  S.  W.  868,  holding 
marriage  alone  sufficient  consideration  for  antenuptial  contract  relinquishing  al) 
claims  in  husband's  estate. 
Res   adjudicate. 

Cited  in  lie  Emig,  186  Pa.  411,  40  Atl.  522,  holding  evidence  may  not  be  given 
involving  matters  previously  adjudicated,  on  reference  back  for  specific  purpose. 
Constructive  trust  from  confidential  relation. 

Cited  in  Huffman  v.  Huffman,  35  Ind.  App.  646,  73  N.  E.  1096,  holding  that 
confidential  relationship  of  husband  and  wife  is  sufficient  on  which  to  establish 
a  constructive  trust  in  case  of  wife's  separate  property  which  the  husband  has 
caused  to  be  transferred  to  him;  Plankinton's  Estate,  212  Pa.  237,  61  Atl.  888, 
holding  that  where  a  confidential  relationship  exists,  burden  is  upon  donee  to 
show  that  no  advantage  was  taken  thereof;  McCord  v.  Bright,  44  Ind.  App.  288, 
87  X.  E.  654,  holding  relation  of  husband  to  wife  confidential  requiring  him  to 
prove  fairness  of  deed  advantageous  to  him. 

1  L.  R.  A.  425,  WINCHESTER  v.  EVERETT,  80  Me.  535,  6  Am.  St.  Rep.  228, 

15  Atl.  596. 
Protection   afforded  to  officers  by  process. 

Cited  in  Brown  v.  Mosher,  83  Me.  114,  21  Atl.  835,  holding  jurisdiction  in  fact, 
though  not  appearing  in  distress  warrant,  protects  officer;  Brown  v.  Howard, 
86  Me.  345.  29  Atl.  1094,  holding  writ  showing  want  of  jurisdiction  no  protec- 
tion; Lisabelle  v.  Hubert,  23  R.  I.  457,  50  Atl.  837,  holding  arrest  upon  writ 
fair  on  its  face  not  false  imprisonment. 
Judgment  or  execution  against  married  \vonian. 

Cited  in  Emery  v.  Kipp,  154  Cal.  86,  19  L.R.A.(X.S.)  986,  129  Am.  St.  Rep.  141, 
97  Pac.  17,  16  A.  &  E.  Ann.  Cas.  792,  holding  valid  judgment  against  a  married 
woman,  sued  by  her  maiden  name,  in  action  to  quiet  title  to  land  in  which  she 
claimed  an  interest  acquired  under  her  maiden  name. 

Cited  in  footnote  to  Gill  v.  State,  26  L.  R.  A.  655,  which  holds  married  woman's 
property  liable  to  execution  against  her  for  fine- 


1  L.R.A.  427]  L.  R.  A.  CASES  AS  AUTHORITIES.  102 

1  L.  R.  A.  427,  BRADLEY  v.  BAILEY,  56  Conn.  374,  7  Am.  St.  Rep.  316,   15 

Atl.  746. 
Ki;iht*  of  administrator  of  life  tenant. 

Cited  in  Keays  v.  Blinn,  234  111.  123,  84  N.  E.  628,  14  A.  &  E.  Ann.  Cas.  37, 
holding  that  crops  growing  on  land  at  the  time  of  death  of  life  tenant,  go  to  his 
personal  representative,  though  he  had  and  exercised  a  power  of  appointment  by 
will  to  dispose  of  the  fee. 

Cited  in  footnotes  to  Noble  v.  Tyler,  48  L.  R.  A.  735,  which  holds  adminis- 
trator of  life  tenant  entitled  to  whole  rent,  though  crops  not  severed  until  after 
life  tenant's  decease;  Salter  v.  Sutherland,  50  L.  il.  A.  140,  which  holds  admin- 
istrator of  life  tenant  of  chattels  cannot  maintain  action  for  possession  against 
wrongful  taker. 
Kmblements. 

Cited  in  State  v.  Helton,  143  Mo.  App.  499,  127  S.  W.  595,  holding  that  life 
tenant  has  right  to  emblements. 

Cited  in  notes  (6  L.  R.  A.  618)  on  emblements;  (12  L.  R.  A.  849)  on  rights 
of  landlord  to  emblements  as  against  attaching  creditors  of  tenant;  (11  L.R.A. 
(X.S.)  688)  on  right  of  lessee  of  life  tenant  to  possession  and  emblements  upon 
death  of  lessor;  (15  Eng.  Rul.  Cas.  556)  on  effect  of  custom  as  to  tenant's  rights 
in  waygoing  crop. 

1  L.  R.  A.  429,  CUTTER  v.  HAMLEN,  147  Mass.  471,  18  N.  E.  397. 
:Survival  of  causes  of  action. 

Cited  in  Killen  v.  Barnes,  106  Wis.  562,  82  N.  W.  536,  holding  action  against 
•officers  of  bank  for  fraudulent  representations  to  depositor  does  not  survive; 
Whiteside  v.  Brawley,  152  Mass.  136,  24  N.  E.  1088,  stating  that  it  was  ques- 
tionable whether  action  for  fraud  in  horse  trade  survived;  Jenks  v.  Hoag,  179 
Mass.  586,  61  N.  E.  221,  holding  action  against  attorney  for  fraudulent  con- 
spiracy with  client  does  not  survive;  Hess  v.  Lowrey,  122  Ind.  226,  7  L.  R.  A. 
90,  17  Am.  St.  Rep.  355,  23  N.  E.  156,  holding  action  for  malpractice  does  not 
survive;  Letson  v.  Brown,  11  Colo.  App.  13,  52  Pac.  287,  and  Feary  v.  Hamil- 
ton, 140  Ind.  52,  39  N.  E.  516,  holding  action  for  personal  injuries  does  not 
.survive;  Lehmann  v.  Farwell,  95  \Yis.  189,  37  L.  R.  A.  336,  60  Am.  St.  Rep.  Ill, 
70  N".  W.  170,  holding  cause  of  action  for  personal  injuries  survives;  YVilkins 
v.  \Yainwright,  173  Mass.  213,  53  N.  E.  397,  holding  action  for  injury  to  plain- 
tiff's person,  horse,  and  sleigh  from  assault  of  defendant's  dogs,  survives;  \Vine- 
turgh  v.  United  States  Steam  &  Street  R.  Advertising  Co.  173  Mass.  61,  73  Am. 
St.  Rep.  261,  53  N.  E.  145,  holding  liability  of  officer  of  corporation  for  mis- 
appropriation of  corporate  property  survives;  Warren  v.  Para  Rubber  Shoe  Co. 
16(5  Mass.  104,  44  N.  E.  112,  holding  cause  of  action  for  breach  of  dvities  arising 
from  fiduciary  relation  survives;  Hedekin  v.  Gillespie,  33  Ind.  App.  653,  72  X.  E. 
143,  holding  that  action  for  personal  injury  from  defect  in  premises  does  not  sur- 
vive the  death  of  the  lessor;  Hey  v.  Prime,  197  Mass.  476,  17  L.R.A.  (N.S.i  ~>7(>. 
'84  N.  E.  141,  holding  that  action  of  tort  by  a  husband  for  consequential  dam- 
ages by  reason  of  personal  injury  to  his  wife  does  not  survive;  Keating  v.  Boston 
Elev.  R.  Co.  209  Mass.  282,  95  N.  E.  840,  holding  that  action  by  father  for  loss 
of  son's  services  from  injuries  does  not  survive;  Re  Gay.  182  Fed.  263,  holding 
that  action  for  false  representations  inducing  bankrupt  to  buy  property  at 
fictitious  value  passes  to  his  trustee. 

Cited  in  footnotes  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  action  for 
rnegligence  of  driver  in  running  over  person  survives;  Aylsworth  v.  Curtis,  33 
.L.  R.  A.  110,  which  holds  action  for  value  of  property  stolen  survives. 


103  L.  R.  A.  CASKS  AS  AUTHORITIES.  [1  L.R.A.  429 

Cited  in  note  (2  Eng.  Rul.  Cas.  18)  on  abatement  of  aetion  for  tort  by  death  of 
wrongdoer. 
Liability  of  lessor  for  defects. 

Cited  in  Willcox  v.  Hines,  100  Tenn.  551,  41  L.  R.  A.  281,  66  Am.  St.  Rep.  770, 
46  S.  W.  297,  holding  landlord  liable  for  defects  existing  at  date  of  lease  of 
which  he  knew  or  ought  to  have  known,  unknown  to  tenant;  Martin  v.  Richards, 
155  Mass.  382.  29  X.  E.  591.  holding  landlord  liable  when  he  knew  of  existence  of 
privy  vault,  and  his  agent  knew  odors  emanated  therefrom,  and  did  not  disclose 
same  to  tenant;  Gallagher  v.  Button,  73  Conn.  177,  46  Afcl.  819,  holding  liability 
of  lessor  for  defect  in  fire  escape  not  established,  in  absence  of  proof  of  its 
existence  at  time  of  letting,  or  that  lessor  was  chargeable  with  knowledge  thereof, 
or  that  tenant  could  not  discover  it;  Copeland  v.  Draper,  157  Mass.  560.  19  L. 
R.  A.  284,  34  Am.  St.  Rep.  314,  32  X.  E.  944,  holding  rule  of  caveat  emptor  ap- 
plies to  hirer  of  horse  whose  defects  are  not  known  to  lessor  or  discoverable  by 
due  care;  O'Malley  v.  Twenty-Five  Associates,  170  Mass.  479,  49  N.  E.  641  (dis- 
senting opinion),  majority  holding  one  injured  by  breaking  of  apparatus  while 
hoisting  coal  for  tenant  entitled  to  go  to  jury  on  question  of  landlord's  liability; 
Crandall  v.  Moston,  24  App.  D.  C.  548,  50  X.  Y.  Supp.  145,  holding  landlord  not 
liable  for  injury  to  tenant  from  fall  of  flush  tank  which  had  become  slightly 
detached  from  wall  without  landlord's  knowledge;  Finney  v.  Steele,  148  Ala.  201, 
6  L.R.A.(X.S.)  980,  41  So.  976,  12  A.  &  E.  Ann.  Cas.  510,  holding  lessor  not  liable 
for  injuries  to  tenant  from  infected  premises,  where  they  had  been  disinfected 
under  the  direction  of  a  skilled  physician;  Shute  v.  Bills,  191  Mass.  436,  7  L.R.A. 
<X.S.)  966,  114  Am.  St.  Rep.  631,  78  N.  E.  96,  holding  lessor  not  liable  for  injury 
to  lessee  from  a  leak  in  the  gutter  where  it  is  not  shown  that  the  lessor  knew 
of  it  or  ought  to  have  known,  at  the  time  of  the  letting;  Steefel  v.  Rothschild, 
179  X.  Y.  278,  72  X.  E.  112,  1  A.  &  E.  Ann.  Cas.  676,  holding  lessor  liable  for 
damage  to  goods  caused  by  removal  from  leased  building  declared  unsafe  where 
lessor  had  knowledge  of  defects  which  lessee  could  not  have  discovered  by  rea- 
sonable diligence. 

Cited  in  notes  (34  L.  R.  A.  829)  on  liability  of  landlord  for  concealment  of  de- 
fects; (19  L.R.A.  726)  on  liability  for  communicating  contagious  disease;  (47 
Am.  St.  Rep.  552;  93  Am.  St.  Rep.  843,  846;  6  L.R.A.  (X.S.)  978)  on  duty  and 
liability  of  landlord  as  to  infected  premises;  (66  Am.  St.  Rep.  787)  on  liability  of 
landlord  letting  premises  in  defective  condition. 

Distinguished  in  Bertie  v.  Flagg,  161  Mass.  506,  37  N.  E.  572,  holding  land- 
lord not  liable  for  failure  to  disclose  defect  in  drain  discovered  during  tenancy; 
Davis  v.  Smith,  26  R.  I.  136,  66  L.R.A.  483,  106  Am.  St.  Rep.  691,  58  Atl.  630, 
3  A.  &  E.  Ann.  Cas.  832,  holding  lessor  not  liable  for  injury  to  lessee  from  in- 
fectious disease  where  he  had  no  knowledge  of  such  infection  nor  for  defects  in 
the  premises  apparent  upon  inspection. 
Remedy  of  tenant  for  concealment  of  defect  in  leased  premises. 

Cited  in  Stevens  v.  Pierce,  151  Mass.  209,  23  X.  E.  1006,  holding  only  remedy 
of  tenant  of  unsanitary  premises  is  in  action  for  fraud :  Shinkle,  W.  &  K.  Co.  v. 
Birney,  68  Ohio  St.  335,  67  X.  E.  715,  holding  action  not  maintainable  by  lessee 
against  lessor  on  account  of  condition  of  premises,  not  founded  on  express  war- 
ranty or  deceit. 

Cited  in  note  (9  Eng.  Rul.  Cas.  457)  on  liability  of  landlord  concealing  defects. 
Evidence  of  snbseqnent  condition. 

Cited  in  Toland  v.  Paine  Furniture  Co.  179  Mass.  505,  61  X.  C.  52,  holding  ad- 
missible evidence  of  condition  of  mat  on  which  plaintiff  tripped,  four  hours  after 
accident,  there  being  no  evidence  of  change  meanwhile;  Boucher  v.  Robeson  Mills, 


1  L.R.A.  429]  L.  R.  A.  CASES  AS  AUTHORITIES.  104 

182  Mass.  503.  65  X.  E.  S1H.  holding  defective  belt  causing  accident  admissible 
in  evidence  though  it  has  been  repaired;  Creamery  Package  Mfg.  Co.  v.  Hotsen- 
piller,  159  Ind.  105,  64  X.  E.  600.  holding  evidence  as  to  condition  of  machine 
a  week  after  accident  admissible,  where  condition  shown  to  have  been  same  a» 
at  time  of  accident;  Droney  v.  Doherty,  186  Mass.  207,  71  N.  E.  547,  holding 
evidence  of  condition  of  elevator  the  day  after  an  accident  admissible. 

1  L.  R.  A.  432,  MYERS  v.  ADLER,  6  Mackey,  515. 
Estates  for  life. 

Cited  in  note  (2  L.  R.  A.  114)  on  creation  of  life  estate. 
Distinction   between   contingent    and  Vested    remainders. 

Cited  in  Hauptman  v.  Carpenter,  16  App.  D.  C.  529.  holding  remainder  after 
estate  for  life  or  until  marriage  vested;  Lantz  v.  Massie,  99  Va.  713,  40  S.  E. 
50,  holding  remainder,  to  be  divided  upon  death  of  life  tenant  as  such  tenant 
deems  best,  vested. 

Cited  in  footnotes  to  Green  v.  Grant,  18  L.  R.  A.  381,  which  holds  remainder  of 
trust  estate  to  be  conveyed  by  trustee  upon  death  of  life  tenant  to  her  issue,  if 
any,  contingent;  Starnes  v.  Hill,  22  L.  R.  A.  598,  which  holds  remainder  for 
life,  depending  upon  devisee's  survival  of  first  life  tenant,  contingent;  Ikrven  v, 
Hackney,  67  L.R.A.  440,  which  holds  that  no  estate  vests  in  children  until  wid- 
ow's death  under  will  giving  life  estate  to  widow  and  providing  that  at  her 
death  that  given  to  her  for  life  shall  be  equally  divided  between  all  the  children., 
the  representatives  of  those  having  died  to  stand  in  place  of  ancestors. 

Cited  in  notes  (3  L.  R.  A.  691;  9  L.  R.  A.  212)  on  contingent  and  vested  re- 
mainders; (9  L.  R.  A.  573)  on  devise  to  widow  during  widowhood. 

1   L.   R.   A.   437,   COOK   COUXTY  v.   CHICAGO   IXDUSTRIAL   SCHOOL   FOR 

GIRLS,  125  111.  540,  8  Am.  St.  Rep.  386,  18  N.  E.  183. 
Public  aid  to   sectarian   institutions. 

Cited  in  Stevens  v.  St.  Mary's  Training  School,  144  111.  342,  18  L.  R.  A.  834. 
36  Am.  St.  Rep.  438,  32  N.  E.  962.  refusing  to  enjoin  county  board  from  making 
illegal  contract  with  sectarian  school;  Synod  of  Dakota  v.  State,  2  S.  D.  375.  14 
L.  R.  A.  422,  30  X.  W.  632,  holding  college  giving  secular  and  sectarian  in- 
struction not  entitled  to  public  moneys;  State  ex  rcl.  Orr  v.  Xew  Orleans,  50  La. 
Ann.  892,  24  So.  666,  holding  city  appropriations  to  private  charitable  institu- 
tions without  fixed  consideration  therefor,  illegal;  People  ex  rel.  Ring  v.  Board 
of  Education,  245  111.  360,  29  LJR.A.(X.S.)  452,  92  X.  E.  251,  19  Ann.  Gas.  220 
(dissenting  opinion),  on  reading  of  Bible  of  sectarian  instruction. 

Cited  in  notes  (14  L.R.A.  419)  on  public  aid  to  sectarian  institutions;  (10.5  Am. 
St.  Rep.  152,  155)  on  religious  and  sectarian  teaching  in  public  schools. 

Distinguished   in  Roberts  v.  Bradfield.   12  App.  D.  C.   472,  upholding  express 
contract  for  care  of  public  patients  in  sectarian  hospital ;  Hysong  v.  School  Dis- 
trict,  164  Pa.  643,  26  L.  R.  A.  207,  44  Am.  St.  Rep.  632,  30  Atl.  482,  holding 
sisters  of  charity  may  be  employed  as  public  school  teachers. 
Constitution   as    paramount    to   statutes. 

Cited  in  Washinolonian  Home  v.  Chicago,  157  111.  427,  29  L.  R.  A.  802,  41 
N.  E.  893,  holding  self-executing  constitutional  provision  paramount  law  from 
adoption  of  Constitution;  Russell  v.  Ayer,  120  X.  C.  19G.  37  L.  R.  A.  251,  27  S. 
E.  133  (dissenting  opinion),  majority  holding  Constitution  indirectly  fixing 
amount  of  poll  tax  not  self -executing;  Eaton  v.  Mimnaugh,  43  Or.  474,  73  Pac. 
754,  holding  that  the  Constitution  must  be  obeyed  in  preference  to  a  statute. 
Appeals  involving  construction  of  Constitution. 

Cited  in  Stevens  v.   St.  Mary's  Training  School,   33   111.   App.   237,  dismissing. 


105  L.  R.  A.  CASES  AS  AUTHORITIES.  [1    L.K.A.  448 

appeal  as  involving  construction  of  Constitution;  Highway  Comrs.  v.  Chicago 
<t  N.  W.  R.  Co.  34  111.  App.  36.  refusing  to  dismiss  appeal  as  involving  constitu- 
tionality of  statute;  Stein  v.  Meyers,  253  111.  204,  97  X.  E.  295,  holding  that  ap- 
peal from  city  court  involving  construct' in  of  Constitution  must  be  taken  direct- 
ly to  supreme  court. 

1  L.  R.  A.  447,  HANKEY  v.  DOWNEY,  116  Ind.  118,  18  N.  E.  271. 

Report  of  second  appeal  in  3  Ind.  App.  326,  29  N.  E.  606;  of  third  appeal  in 
10  Ind.  App.  501,  38  N.  E.  220. 
State  statutes  regulating:  gale  of  patent  rights. 

Cited  in  Sandage  v.  Studabaker  Bros.  Mfg.  Co.  142  Ind.  156,  34  L.  R.  A.  366, 
51  Am.  St.  Rep.  165,  41  N.  E.  380,  and  Pape  v.  Wright,  116  Ind.  503,  19  N.  E.  459, 
holding  statute  regulating  sale  of  patent  rights  valid;  Eclipse  Wind  Engine  Co. 
v.  Zimmerman  Mfg.  Co.  16  Ind.  App.  503,  44  N.  E.  1115,  holding  license  to  use, 
not  a  sale  of  patent  rights  within  statute. 
Police  power  of  state. 

Cited  in  Reeves  v.  Corning,  51  Fed.  787,  holding  requirement  as  to  filing  of 
letters  patent  by  person  selling,  legitimate  exercise  of  police  powers;  Bowlby  v. 
Kline.  28  Ind.  App.  663,  63  N.  E.  733,  holding  law  restricting  negotiability  of 
loan  association  bonds,  notes,  and  mortgages,  within  police  power;  Woods  v. 
'Carl,  75  Ark.  334,  87  S.  W.  621,  3  A.  &  E.  Ann.  Cas.  423,  holding  act  governing 
form  of  promissory  note  given  in  consideration  of  sale  of  patent  rights  to  be  a 
valid  exercise  of  police  power. 

Cited  in  notes  (29  L.  R.  A.  789)  on  power  of  state  to  restrict  and  regulate 
sale  or  enjoyment  of  patent  rights;  (20  L.  R.  A.  608)  on  validity  of  notes  given 
for  patent  rights;  (114  Am.  St.  Rep.  488)  on  requirement  of  notes  given  for 
patent  rights. 

Distinguished  in  Ozan  Lumber  Co.  v.  Union  County  Nat.  Bank,  76  C.  C.  A.  220, 
145  Fed.  346,  7  A.  &  E.  Ann.  Cas.  390,  holding  void  act  prescribing  form  to  be 
used  in  promissory  notes  given  for  patented  articles. 
Distinction    between    patent    right    and    patented    articles. 

Cited  in  Eclipse  Wind  Engine  Co.  v.  Zimmerman  Mfg.  Co.  16  Ind.  App.  503, 
44  N.  E.  1115,  holding  sale  of  license  not  sale  of  patent  rights;  People's  State 
Bank  v.  Jones,  2b-  Ind.  App.  585,  84  Am.  St.  Rep.  310,  58  N.  E.  852,  holding 
sale  of  exclusive  right  to  sell  patented  article  not  sale  of  patent  right;  Tredick 
v.  Walters,  81  Kan.  833,  106  Pac.  1067,  holding  that  sale  of  exclusive  right  to 
sell  a  mold  designed  expressly  and  exclusively  for  use  in  the  manufacture  of  a 
patented  article,  is  a  sale  of  a  patent  right;  Bolte  v.  Sparks,  85  Kan.  16,  116  Pac. 
224,  holding  that  notes  in  consideration  of  agency  for  sale  of  territory  to  cus- 
tomers who  are  to  have  exclusive  right  to  sell  patented  invention  must  contain 
words  "given  for  patent  right." 

Distinguished  in  First  Xat.  Bank  v.  Beach,  34  Ind.  App.  86,  72  N.  E.  287,  on 
sale  of  "patent  right"  or  of  "right  to  manufacture  patented  article"  under  statute. 

1  L.  R.  A.  448,  DENNIS  v.  LOUISVILLE,  N.  A.  &  C.  R.  CO.  116  Ind.  42,  18  N. 

E.  179. 
Contributory  negligence. 

Cited  in  Citizens'  Street  R.  Co.  v.  Merl,  134  Ind.  611,  33  N.  E.  1014,  holding  no 
contributory  negligence  when  passenger  struck  by  car  while  being  transferred  in 
plain  view  of  driver;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Shaw,  15  Ind.  App. 
177,  43  N.  E.  957,  and  Chicago,  St.  L.  &  P.  R.  Co.  v.  Fenn,  3  Ind.  App.  253,  29 
JN.  E.  790,  holding  no  contributory  negligence  shown  by  escape  of  secured  animal. 


]  L.R.R.  448]  L.  R.  A.  CASES  AS  AUTHORITIES.  10ft 

Presumption   as   to  animal  leaving:   track. 

Cited  in  Overton  v.  Indiana,  B.  &  W.  R.  Co.  1  Ind.  App.  440,  27  N.  E.  651, 
holding  engineer  could  not  presume  that  cow  he  saw  on  track  would  leave  as 
train  approached. 
Liability  of   railroad   for   injury   to   stock. 

Cited  in  Indiana,  B.  &  W.  R.  Co.  v.  Overton,  117  Ind.  254,  20  N.  E.  147,  hold- 
ing killing  not  wilful  if  engineer  did  not  see  cow  until  close  to  crossing;  Indian- 
apolis &  E.  R.  Co.  v.  Goar,  42  Ind.  App.  91,  86  N.  E.  968,  holding  that  railway 
company  is  not  liable  for  injury  to  animals  trespassing  on  its  track  in  the 
absence  of  negligence. 

Cited  in  notes   (8  L.  R.  A.  135)   on  liability  of  railroad  for  injury  to  cattle  by- 
failure  to  fence;    (11  L.  R.  A.  461)    on  duty  of  railway  employees  to  keep  look- 
out for  stock  on  track. 
Finding  silent  on  material  point. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  Van  Auken,  1  Ind.  App.  498,  27  N.  E. 
119,  holding  necessary  for  special  verdict  to  show  that  cow  was  on  or  at  cross- 
ing; Louisville,  N.  A.  &  C.  R.  Co.  v.  Green,  120  Ind.  375,  22  N.  E.  327,  holding; 
special  verdict  silent  as  to  ringing  of  bell  fatal  to  recovery  for  loss  of  cow;  Chi- 
cago, L  &  L.  R.  Co.  v.  Ramsey,  168  Ind.  397,  120  Am.  St.  Rep.  379,  81  N.  E.  79r 
holding  that  where  finding  is  silent  as  to  a  material  fact,  it  will  be  taken  on  that 
point  as  a  finding  against  the  party  having  the  burden  of  proof. 
When  negligence  of  railroad  is  question  of  fact. 

Cited  in  note  (11  Am.  St.  Rep.  785)  on  when  negligence  of  railway  companies 
is  question  of  fact. 

1  L.  R.  A.  451,  COM.  v.  FITZPATRICK,   121   Pa.   109,  6  Am.  St.  Rep.  757,   15 

Atl.  466. 
Former  jeopardy  by  mistrial  or  discharge  of  jury. 

Cited  in  McDonald  v.  State,  79  Wis.  6%3,  24  Am..  St.  Rep.  740,  48  N.  W.  863, 
holding  resentencing  prisoner  on  same  verdict  not  putting  twice  in  jeopardy; 
Com.  v.  Fritch,  9  Pa.  Co.  Ct.  169,  holding  accused  consenting  to  discharge  of 
juror  and  substitution  of  another  cannot  object  thereto;  Allen  v.  State.  52  Fla. 
4,  41  So.  593,  10  A.  &  E.  Ann.  Cas.  1085,  holding  that  discharge  of  the  jury  with- 
out ground  and  continuing  case  over  the  term  operates  as  an  acquittal  and  bars 
subsequent  prosecution;  Gillespie  v.  State,  168  Ind.  310,  80  X.  E.  829,  holding 
that  where,  after  a  jury  was  impanelled  and  sworn,  a  juror  was  illegally  excused 
and  another  substituted,  it  constituted  jeopardy  and  the  defendant  was  acquitted; 
People  ex  rel.  Stavile  v.  Warden,  202  N.  Y.  151,  95  X.  E.  729,  holding  that  de- 
fendant has  been  placed  in  jeopardy,  where  judge  discharges  murder  jury  after 
five  hours  deliberation,  without  their  request,  on  consent  of  defendant;  State  v. 
Turpin,  54  Or.  369,  103  Pac.  438,  holding  subsequent  prosecution  barred  by  dis- 
charge of  jury  on  account  of  failure  of  judge  to  attend  and  hold  court;  Com.  v. 
Gabor,  209  Pa.  205,  58  Atl.  278,  holding  new  trial  properly  ordered  where  verdict 
was  received  in  absence  of  the  prisoner  and  jury  discharged  in  trial  for  murder, 
where  the  first  verdict  was  for  manslaughter;  Com.  v.  Endrukat,  231  Pa.  534,  35 
L.R.A.(N.S-)  473,  80  Atl.  1049,  holding  that  defendant  may  be  tried  again,  where 
judge,  on  own  motion,  sets  aside  verdict  of  murder  in  first  degree  and  insanity. 

Cited  in  footnotes  to  Re  Ascher,  57  L.  R.  A.  806,  which  holds  accused  not  put 
in  jeopardy  when  jury  discharged  for  improper  conduct;  Dreyer  v.  People,  58 
L.  R.  A.  869,  which  holds  discharge  of  jurors  for  failing  to  agree  not  put  accused 
in  jeopardy;  State  v.  Nelson,  33  L.  R.  A.  559,  which  holds  discharge  of  jury  after 
criminal  trial  had  progressed  some  days  bar  to  second  trial. 


107  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  456 

Cited  in  notes  (4  L.R.A.  543)  on  former  acquittal  as  a  defense;  (11  L.R.A. (N.S.) 
181)  on  time  allowable  for  jury  to  deliberate  before  mistrial  ordered  in  criminal 
case. 

Distinguished  in  Com.  v.  Reese,  22  Pa.  Co.  Ct.  413,  8  Pa.  Dist.  R.  416,  holding 
prohibition  against  twice  putting  in  jeopardy  inapplicable  to  crime  of  inferior 
grade,  such  as  adultery. 

Disapproved  in  State  v.  Barnes,  54  Wash.  496,  23  L.R.A.(N.S.)   935,  .103  Pa«. 
792,  holding  discharge  of  jury  upon  failure  to  agree  after  forty-three  hours  delib- 
eration no  bar  to  subsequent  trial. 
Judicial  notice. 

Cited  in  Pitts  v.  Lewis,  81  Iowa,  56,  46  N.  W.  739,  holding  that  court  will 
take  judicial  notice  of  organization  of  county. 

Cited  in  footnote  to  Com.  v.  King,  5  L.  R.  A.  536,  which  holds  that  judicial 
notice  would  be  taken  that  river  above  dam  not  highway  for  commerce. 

Cited  in  notes  (4  L.R.A.  38)  on  judicial  notice  of  civil  division  of  the  state;. 
(82  Am.  St.  Rep.  445)  on  judicial  notice  of  localities  and  boundaries. 

1  L.  K.  A.  453,  MIFFLIN'S  APPEAL,  121  Pa.  205,  15  Atl.  525. 
Creation  of  perpetuity. 

Cited  in  Lawrence's  Estate,  136  Pa.  364,  11  L.  R.  A.  89,  20  Am.  St.  Rep.  925r 
20  Atl.  521,  holding  power  to  appoint  by  will  persons  to  take  fee  not  against 
perpetuities;  Pulitzer  v.  Livingston,  89  Me.  366,  36  Atl.  635,  holding  right  re- 
served by  equitable  owner  in  trust  deeds  to  destroy  trusts  removes  them  from- 
rule  against  perpetuities;  Lawrence's  Estate,  136  Pa.  367,  11  L.  R.  A.  90,  20= 
Am.  St.  Rep.  925,  20  Atl.  521,  holding  remainder  vesting  on  termination  of  life 
in  being  not  too  remote;  Shepperd  v.  Fisher,  206  Mo.  239,  103  S.  W.  989;  Buxton 
v.  Kroeger,  219  Mo.  272,  117  S.  W.  1147  (dissenting  opinion),  on  application  of 
the  rule  against  perpetuities. 

•Cited  in  footnotes  to  Murphy  v.  Whitney,  24  L.  R.  A.  123,  which  holds  perpe- 
tuity not  created  by  contract  by  joint  tenants  that  land  should  pass  to  survivor, 
and  from  last  survivor  to  child  of  only  married  one;  Cross  v.  United  States  Trust 
Co.  15  L.  R.  A.  606,  which  holds  law  against  perpetuities  in  state  where  property 
situated  will  not  defeat  bequest  in  trust  valid  in  testator's  domicil. 

Cited  in  notes  (1  L.  R.  A.  419)  on  perpetuities;  (3  L.  R.  A.  146;  4  L.  R.  A. 
141)  on  statute  against  perpetuities;  (11  L.  R.  A.  85)  on  rule  against  perpetui- 
ties applied  to  wills;  (6  L.  R.  A.  84)  on  trusts  for  private  objects  not  within 
charitable  trusts  as  regards  perpetuities;  (49  Am.  St.  Rep.  121,  133)  on  rule- 
against  perpetuities. 
Power  of  appointment. 

Cited  in  Evans's  Estate,  27  Pa.  Co.  Ct.  629,  holding  that  no  remainder  exists 
after  the  exercise  by  life  tenant  of  absolute  power  of  disposal. 

Cited  in  note  (21  Eng.  Rul.  Cas.  414)  on  effect  of  instrument  executing  power. 

1  L.  R.  A.  456,  LESLIE  v.  LOR1LLARD.  110  X.  Y.  519,  18  N.  E.  363. 
Contracts   in   restraint   of  trade. 

Cited  in  Booth  v.  Seibold,  37  Misc.  102,  74  N.  Y.  Supp.  776,  holding  sale  of 
fish  business  with  agreement  not  to  engage  in  it  within  limited  area  and  for 
limited  time  valid:  Ceballos  v.  Munson,  S.  S.  Line,  93  App.  Div.  595,  87  N.  Y, 
Supp.  811,  holding  legal,  contract  between  shippers  of  cattle  to  pay  commissions 
to  one  another  on  cattle  carried  by  them;  Swigert  v.  Tilden,  121  Iowa,  657,  63 
L.  R.  A.  611.  97  X.  W.  82,  upholding  contract  not  to  engage  in  manufacturing 
or  selling  shirts  in  certain  places  for  period  of  ten  years;  Underwood  v.  Smith, 


1  L.R.A.  456]  L.  R.  A.  CASES  AS  AUTHORITIES.  108 

46  N.  Y.  S.  R.  656,  19  X.  Y.  Supp.  381,  holding  agreement  by  sellers  not  to 
engage  in  similar  business  for  limited  time  valid;  Wood  v.  Whitehead  Bros.  Co. 
165  N.  Y.  551,  59  N.  E.  357,  holding  sale  of  goodwill  of  molding  sand  business, 
with  covenant  not  to  compete,  valid;  Ru  Ton  v.  Everitt,  35  App.  Div.  414,  54 
N.  Y.  Supp.  896,  holding  sale  of  goodwill  of  city  market  business  for  limited 
period  valid;  Brett  v.  Ebel,  29  App.  Div.  259,  51  X.  Y.  Supp.  573,  holding  sale 
of  freighting  business  with  specified  contract,  with  covenant  not  to  engage  in  it 
for  limited  period,  valid;  Stanley  v.  Pollard,  5  Misc.  492,  25  N.  Y.  Supp.  766, 
holding  agreement  not  to  sell  soap  within  limited  areas  and  time  valid;  Water- 
town  Thermometer  Co.  v.  Pool,  51  Hun,  162,  4  N.  Y.  Supp.  861.  holding  assign- 
ment of  trade-mark,  with  agreement  not  to  manufacture  anywhere  in  United 
States  within  ten  years,  valid;  Tode  v.  Gross,  127  N.  Y.  485,  13  L. 
R.  A.  654,  24  Am.  St.  Rep.  475,  28  N.  E.  469.  holding  sale  of  secret 
process,  with  agreement  not  to  use  for  five  years  nor  to  divulge 
to  anyone  else,  valid;  Ellerman  v.  Chicago  Junction  R.  &  Union 
Stockyards  Co.  49  N.  J.  Eq.  257,  23  Atl.  287.  holding  sale  of  stockyards. 
with  agreement  not  to  engage  in  business  within  limited  area  and  for  limited 
time,  valid;  Lanzit  v.  J.  W.  Sefton  Mfg.  Co.  184  111.  330,  75  Am.  St.  Rep.  171. 
56  N.  E.  393,  holding  agreement  not  to  engage  in  business  for  ten  years,  any- 
where in  United  States,  unreasonable;  State  v.  Central  R.  Co.  109  Ga.  724,  48 
L.  R.  A.  354,  35  S.  E.  37,  holding  sale  of  one  railroad  to  another  did  not  lessen 
competition  where  none  existed  between  them ;  Mapes  v,  Metcalf,  10  N.  D.  608, 
88  N.  W.  713,  holding  agreement  to  discontinue  newspaper  and  advertising  busi- 
ness for  five  years  in  certain  county  valid;  Goddard  v.  American  Queen,  27  Misc. 
480,  59  N.  Y.  Supp.  46,  holding  agreement  by  newspaper  not  to  publish  any  simi- 
lar advertisement  valid;  Matthews  v.  Associated  Press,  136  X.  Y.  340,  32  Am. 
St.  Rep.  741,  32  X.  E.  981.  Affirming  61  Hun,  204,  15  N.  Y.  Supp.  887,  holding 
by-law  of  press  association  prohibiting  members  from  publishing  despatches  of 
other  news  associations  valid;  Cohen  v.  Berlin  &  J.  Envelope  Co.  38  App.  Div. 
501,  56  X.  Y.  Supp.  588,  holding  agreement  for  sale  and  regulation  of  prices 
of  envelopes  valid;  Excelsior  Quilting  Co.  v.  Creter,  36  Misc.  702.  74  X.  Y.  Supp. 
361,  holding  agreement  by  sole  manufacturer,  on  selling  machines,  not  to  make 
any  more,  valid;  Michigan  C.  R.  Co.  v.  Pere  Marquette  R.  Co.  128  Mich.  347. 
87  N.  W.  271,  holding  sale  by  railroad  to  another  of  right  to  use  in  common 
part  of  its  line,  with  freight  regulation,  reasonable;  United  States  v.  Trans-Mis- 
souri Freight  Asso.  166  U.  S.  349,  41  L.  ed.  1030,  17  Sup.  Ct.  Rep.  540  (dissenting 
opinion),  majority  holding  freight  traffic  agreement  regulating  rates  within 
'•anti-trust"  law;  People  v.  North  River  Sugar  Ref.  Co.  121  X.  Y.  609,  9  L.  R.  A 
39,  18  Am.  St.  Rep.  843,  24  X.  E.  834,  Affirming  54  Hun.  383,  5  L.  R.  A.  391, 
7  N.  Y'.  Supp.  406,  Which  Affirms  54  Hun,  375  note,  2  L.  R.  A.  41.  22  Abb.  X.  C. 
205,  3  N.  Y.  Supp.  401,  holding  agreement  among  sugar  refining  corporations 
to  sell  stock  to  board,  in  trust  to  control  business,  illegal;  Oakes  v.  Cattaraugus 
Water  Co.  143  X.  Y.  439,  26  L.  R.  A.  551,  38  X.  E.  461,  holding  agreement  not 
to  bid  for  public  franchise  valid;  Barber  Asphalt  Paving  Co.  v.  Brand,  27  X.  Y. 
S.  R.  885,  7  N.  Y.  Supp.  744,  holding  complaint  to  enforce  contract  not  to  sell 
asphalt  good;  Havemeyer  v.  Superior  Court,  84  Cal.  380,  10  L.  R.  A.  641,  18  Am. 
St.  Rep.  192,  24  Pac.  121,  holding  penalty  for  contract  in  restraint  of  trade  can- 
not exceed  that  prescribed  by  statute;  Re  Grice,  79  Fed.  644,  holding  act  making 
criminal  all  restrictions  of  trade  invalid;  Knight  &  J.  Co.  v.  Miller.  172  Ind.  38, 
87  X.  E.  823,  holding  agreement  by  dealers  in  plumber's  supplies,  not  to  sell  to 
certain  parties  to  be  in  restraint  of  trade;  Southworth  v.  Davison.  106  Minn.  121, 
19  L.R.A.(X.S.)  771,  118  X.  W.  303,  10  A.  &  E.  Ann.  Cas.  253,  holding  agreement 
by  one  selling  a  business,  not  to  engage  in  similar  business  within  certain  terri- 


109  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  456 

tory  valid  though  unlimited  as  to  time:  United  Shoe  Machinery  Co.  v.  Kimball, 
193  Mass.  358,  79  X.  E.  790,  holding  valid  a  similar  agreement  for  a  specified 
time  but  unlimited  as  to  territory;  Angelica  Jacket  Co.  v.  Angelica,  121  Mo.  App. 
237,  98  S.  W.  805,  holding  valid  a  contract,  by  one  who  sold  his  business,  not  to 
engage  in  the  same  character  of  business  within  certain  territory  for  a  certain 
period;  Whitaker  v.  Kilby,  55  Misc.  343,  106  N.  Y.  Supp.  511;  Wayne-Monroe 
Teleph.  Co.  v.  Ontario  Teleph.  Co.  60  Misc.  442,  112  N.  Y.  Supp.  424,— holding 
contract  between  telephone  companies  valid,  though  it  involved  incidentally  par- 
tial restraint  in  competition,  where  the  main  object  of  the  agreement  was  lawful 
and  beneficial;  Brooklyn  Distilling  Co.  v.  Standard  Distilling  &  Distributing  Co. 
120  App.  Div.  239,  105  N.  Y.  Supp.  264,  holding  that  statute  against  combina- 
tions does  not  prevent  one  from  leasing  property  to  prevent  competition ;  Central 
New  York  Teleph.  &  Teleg.  Co.  v.  Averill,  199  N.  Y.  134,  32  L.R.A. (N.S.)  497, 
139  Am.  St.  Rep.  878,  92  N.  E.  206,  Modifying  129  App.  Div.  756,  114  N.  Y.  Supp. 
99,  Reversing  55  Misc.  349,  105  N.  Y.  Supp.  378,  holding  void,  contract  for  exclu- 
sive use  of  certain  telephone  system  in  hotel;  New  York  Bank  Note  Co.  v.  Ham- 
ilton Bank  Note  Engraving  &  Printing  Co.  180  N.  Y.  294,  73  N.  E.  48,  holding 
contract  to  sell  printing  presses  of  a  certain  kind  to  one  company  only,  valid. 

Cited  in  footnotes  to  state  ex  rel.  Snyder  v.  Portland  Natural  Gas  &  Oil  Co. 
53  'L.  R.  A.  413,  which  holds  agreement  with  rival  company  to  fix  price  of  gas 
and  refuse  to  supply  gas  to  customers  of  rival  illegal;  State  ex  rel.  Watson  v. 
Standard  Oil  Co.  15  L.  R.  A.  145,  which  holds  transfer  by  stockholders  to  trus- 
tees to  control  business  of  corporation,  illegal ;  Gloucester  Isinglass  &  Glue  Co. 
v.  Russia  Cement  Co.  12  L.  R.  A.  563,  which  holds  agreement  to  prevent  compe- 
tition between  corporations  in  manufacture  of  glue  valid ;  Newell  v.  Meyendorff. 
8  L.  R.  A.  440,  which  holds  contract  giving  exclusive  agency  for  sale  of  cigars 
in  certain  territory  valid;  More  v.  Bennett,  15  L.  R.  A.  361,  which  holds  stenog- 
raphers' association  to  control  prices  illegal;  Anderson  v.  Jett,  6  L.  R.  A.  390, 
which  holds  agreement  between  rival  steamboats  to  divide  profits,  and,  after  sell- 
ing boat,  not  to  engage  in  business  within  a  year,  illegal;  Bancroft  v.  Union  Em- 
bossing Co.  64  L.  R.  A.  298,  which  upholds  validity  of  contract  of  one  selling 
right  to  manufacture  machine,  not  to  engage  in  business  of  making  such  ma- 
chines during  life  of  contract;  State  v.  Phipps,  18  L.  R.  A.  658,  which  holds 
combination  of  foreign  insurance  companies  to  increase  rates,  within  anti-trust 
act;  Kramer  v.  Old,  34  L.  R.  A.  389,  which  holds  restriction  as  to  engaging  in 
milling  business  within  limited  area,  though  for  life,  valid;  Texas  Standard  Cot- 
ton Oil  Co.  v.  Adoue,  15  L.  R.  A.  598,  which  holds  combination  between  cotton 
oil  mills,  fixing  price  of  material  used,  unreasonable;  Bancroft  v.  Union  Emboss- 
ing Co.  64  L.R.A.  298,  which  upholds  contract  by  seller  of  right  to  manufacture 
and  sell  patented  machine  not  to  engage  in  making  same  nor  grant  right  to  do 
so  to  others;  Eugene  Dietzgen  Co.  v.  Kokosky,  66  L.R.A.  503,  which  sustains 
right  to  injunction  against  member  of  former  partnership  agreeing  on  sale  of 
business  not  to  engage  directly  or  indirectly  in  competitive  business  within  spe- 
cified city  for  designated  period  from  continuing  in  rival  business  into  which  he 
entered  in  violation  of  such  agreement. 

Cited  in  notes  (11  L.  R.  A.  504)  on  contracts  in  general  restraint  of  trade; 
(8  L.  R.  A.  470)  on  contracts  in  partial  restraint  of  trade;  (11  L.  R.  A.  437) 
on  contracts  to  regulate  competition  in  trade  not  illegal;  (4  L.  R.  A.  155)  on 
contracts  in  partial  restraint  of  trade  valid;  (9  L.  R.  A.  38)  on  monopolies; 
(12  L.  R.  A.  754)  on  monopolies  as  public  nuisances  may  be  restrained;  (6  L. 
R.  A.  457)  on  contracts  creating  monopolies  void  as  against  public  policy;  (13 
L.  R.  A.  384)  on  municipality  cannot  create  monopoly;  (13  L.  R.  A.  771)  on 
price  fixed  by  illegal  combination  void;  (33  L.  ed.  U.  S.  70,  71,  73)  on  validity 


1  L.R.A.  456]  L.  R.  A.  CASES  AS  AUTHORITIES.  310 

of  contracts  in  restraint  of  trade;    (74  Am.  St.  Rep.  241)   on  combinations  con- 
stituting unlawful  trusts. 

Distinguished  in  Central  Transp.  Co.  v.  Pullman's  Palace  Car  Co.  139  U.  S.  54, 
35  L.  ed.  66,  11  Sup.  Ct.  Rep.  478,  holding  contract  by  which  corporation  agreed 
not  to  perform  its  duties  void;  Cummings  v.  Union  Blue  Stone  Co.  164  X.  Y. 
404,  52  L.  R.  A.  263,  79  Am.  St.  Rep.  655,  58  N.  E.  525,  holding  combination 
among  producers  of  blue  stone  to  regulate  prices  void;  Cleveland,  C.  C.  &  I.  R. 
Co.  v.  Closser,  126  Ind.  360,  9  L.  R.  A.  764,  3  Inters.  Com.  Rep.  394,  22  Am. 
St.  Rep.  593,  26  N.  E.  159,  holding  traffic  agreement  between  carriers  to  destroy 
competition  illegal. 

Disapproved  in  United  States  v.  Addyston  Pipe  &  Steel  Co.  46  L.  R.  A.   132, 
29  C.  C.  A.   153,  54  U.  S.  App.  723,  85  Fed.  284,  holding  agreement   dividing 
business  territory  and  fixing  prices  of  pipe,  in  restraint  of  trade. 
-Powers    of   corporate    officers. 

Cited  in  Mutual  Reserve  Fund  Life  Asso.  v.  Cleveland  Woolen  Mills,  27  C.  C. 
A.  220,  54  U.  S.  App.  290,  82  Fed.  516,  holding  assistant  secretary  of  associa- 
tion might  waive  forfeiture;  Hastings  v.  Brooklyn  L.  Ins.  Co.  138  N.  Y.  479,  34 
N.  E.  289,  holding  general  officer  of  insurance  company  may  waive  immediate 
payment  of  premiums;  Hennessy  v.  Muhleman,  40  App.  Div.  177,  57  X.  Y.  Supp. 
854,  holding  directors  of  mining  company  could  lease  part  of  its  land  to  develop 
mines;  Oakes  v.  Cattaraugus  Water  P.  Co.  143  N.  Y.  436,  26  L.  R.  A.  551,  38  N. 
E.  461,  holding  president  of  water  company  could  ratify  own  agreement  to  pay 
for  services  connected  with  business  of  company ;  Beveridge  v.  New  York  Elev. 
R.  Co.  112  N.  Y.  22,  2  L.  R.  A.  652,  19  X.  E.  489,  holding  directors  authorized 
to  lease  railroad  to  another  road  for  term  of  years. 
Ultra  vires. 

Cited  in  Jemison  v.  Citizens'  Sav.  Bank,  122  N.  Y.  141,  9  L.  R.  A.  710,  19  Am. 
St.  Rep.  482,  25  N.  E.  264,  holding  savings  bank  cannot  speculate  in  cotton  fu- 
tures; Ellerman  v.  Chicago  Junction  R.  &  Union  Stockyards  Co.  49  N.  J.  Eq. 
257,  23  Atl.  287,  holding  stockyard  company  could,  on  selling  yards,  agree  not 
to  engage  in  business  within  limited  area;  State  ex  rel.  Atty.  Gen.  v.  Interstate 
Sav.  Invest.  Co.  64  Ohio  St.  318,  52  L.  R.  A.  543,  83  Am.  St.  Rep.  754,  60  XT.  E. 
220,  holding  investment  companies  were  intended  by  legislature  to  exercise  fran- 
chise within  limits  of  charter;  Nims  Y.  Mt.  Hermon  Boys'  School,  160  Mass. 
179,  22  L.  R.  A.  366,  39  Am.  St.  Rep.  467,  35  N.  E.  776,  holding  educational  cor- 
poration operating  ferry  liable  in  tort  to  passenger,  though  operation  ultra  vires; 
Maryland  Trust  Co.  v.  National  Mechanic's  Bank,  102  Md.  614,  63  Atl.  70,  on 
meaning  of  "ultra  vires"  as  applied  to  corporate  acts. 

Cited  in  notes  (7  L.R.A.  605)  on  restriction  on  exercise  of  powers  of  corpora- 
tion; (70  Am.  St.  Rep.  158)  on  ultra  vires  contracts  of  private  corporation. 

Distinguished  in  Central  Transp.   Co.  v.  Pullman's  Palace  Car  Co.   139  U.  S. 
-754,  35  L.  ed.  66,  11  Sup.  Ct.  Rep.  478,  holding  agreement  by  corporation  not  to 
perform  its  duties  to  public,  void. 
Remedies  of  stockholders   for  corporate  action. 

.Cited  in  Steinway  v.  Steinway  &  Sons,  17  Misc.  53,  46  N.  Y.  Supp.  718,  re- 
iusing  to  enjoin  piano  corporation  from  contributing  to  school  and  other  pur- 
poses for  employees,  and  from  purchasing  good  will  of  musical  artists;  Lewisohn 
•v.  Anaconda  Copper  Min.  Co.  26  Misc.  625,  56  X.  Y.  Supp.  807.  refusing  to  en- 
join majority  stockholders  from  selling  corporate  property;  Burden  v.  Burden, 
159  N.  Y".  307,  54  N.  E.  17,  holding  stockholder  cannot  enjoin  execution  of  con- 
•tract  between  corporations  with  mutual  directors;  Roberts  v.  New  York  &.  X.  E. 
H.  Co.  64  N.  Y.  S.  R.  168,  31  N.  Y.  Supp.  579.  refusing  to  require  redemption 
<of  mortgage  on  corporate  property  at  suit  of  minority  stockholders;  Symmes  v. 


Ill  L.  R.  A.  CASKS  AS  AUTHORITIES.  [1  L.H.A.  462 

Union  Trust  Co.  60  Fed.  855,  holding  trustee's  failure  to  assess  stockholder  to 
pay  mortgage  does  not  authorize  setting  aside  foreclosure  decree;  Flynn  v. 
Brooklyn  City  R.  Co.  158  X.  Y.  508,  53  X.  E.  520,  holding  stockholder  can  bring 
action  to  review  fraudulent  management  when  corporation  refuses  to  act;  Sage  v. 
Culver,  147  X.  Y.  246,  41  X.  E.  513,  holding  stockholder  can  bring  action  to 
compel  accounting  by  trustees  controlling  corporation;  Flynn  v.  Third  Xat.  Bank, 
122  Mich.  645,  81  X.  W.  572,  holding  shareholder  may  file  bill  against  directors 
for  maladministration  where  receiver  a  director;  Starin  v.  Edson,  112  N.  Y.  215, 
10  X.  E.  670,  holding  mere  taxpayer  cannot  question  right  of  railroad  corpora- 
tion to  lease  ferries;  People  ex  rel.  Union  P.  R.  Co.  v.  Colorado  Eastern  R.  Co.  8 
Colo.  App.  307,  46  Pac.  219,  holding  proceedings  could  not  be  brought  by  private 
corporation  to  question  corporate  existence  of  another;  Xiles  v.  Xew  York  C.  & 
H.  R.  R,  Co.  176  N.  Y.  126,  68  X.  E.  142,  holding  that  action  for  damages  for 
conspiracy  to  wreck  corporation  must  be  brought  on  behalf  of  corporation; 
Elmes  v.  Duke,  39  Misc.  247,  79  X.  Y.  Supp.  425,  upholding  right  of  minority 
stockholder  to  sue  in  own  name  for  accounting  by  directors  charged  with  fraud; 
Venner  v.  Chicago  City  R.  Co.  236  111.  362,  86  X.  E.  266,  holding  that  minority 
stockholder  cannot  maintain  action  to  set  aside  intra  vires  transaction  author- 
ized by  the  majority;  People  v.  Equitable  Life  Assur.  Soc.  124  App.  Div.  732,  109 
X.  Y.  Supp.  453,  holding  directors  not  liable  for  errors  of  judgment  where  acting 
in  good  faith  and  not  ultra  vires;  Roth  v.  Robertson,  64  Misc.  346,  118  X.  Y. 
Supp.  351,  holding  that  stockholder  may  bring  suit  on  behalf  of  the  corporation 
without  demand  of  the  officers  where  such  demand  would  be  futile;  Hearst  v. 
McClellan,  102  App.  Div.  339,  92  X.  Y.  Supp.  484,  holding  that  taxpayer  cannot 
maintain  suit  to  restrain  payment  by  the  city  of  excessive  gas  bills,  in  the  ab- 
sence of  bad  faith  or  fraud;  Morse  v.  Equitable  L.  Assur.  Soc.  124  App.  Div.  240, 
108  X.  Y.  Supp.  986,  holding  that  directors  of  insurance  company  will  not  be 
restrained  at  the  instance  of  a  minority  stockholder  from  voting  upon  a  merger, 
where  such  act  is  not  ultra  vires;  Theis  v.  Spokane  Falls  Gaslight  Co.  49  Wash. 
496,  95  Pa.  1074,  holding  that  act.  intra  vires,  of  majority  stockholders  cannot 
be  questioned  in  court  by  minority  stockholder;  Figge  v.  Bergenthal,  130  Wis. 
617,  109  X.  W.  581,  holding  that  court  will  not  regulate  the  business  of  a  corpo- 
ration at  the  instance  of  minority  stockholders  in  the  absence  of  fraud;  Kent  v. 
Honsinger,  167  Fed.  630,  holding  that  stockholders  may  maintain  action  for 
himself  and  all  others  similarly  situated,  without  demand  upon  the  officers  to 
bring  the  action,  where  the  officers  are  the  wrongdoers;  Denney  v.  Susquehanna 
Iron  &  Steel  Co.  21  Lane.  L.  Rev.  12,  refusing  to  appoint  receiver,  though  com- 
pany could  not  meet  its  accounts  payable  and  business  was  being  run  at  a  loss. 

Cited  in  footnote  to  Pittsburgh  Carbon  Co.  v.  McMillin,  7  L.  R.  A.  46,  which 
holds  party  to  illegal  trust  combination  cannot  claim,  as  against  receiver,  pro- 
ceeds of  goods  sold  to  trust. 

Cited  in  notes  (12  L.R.A.  168)  on  corporations  estopped  to  deny  liability  on 
contracts;  (97  Am.  St.  Rep.  43)  on  actions  by  stockholders  in  behalf  of  corpo- 
rations. 

Distinguished  in  Shaw  v.  Staight,  107  Minn.  161,  20  L.R,A.(X.S.)  1084,  119 
X.  W.  951,  holding  that  stockholder  may  bring  action  to  have  fraudulent  stock 
cancelled,  where  the  officers  refuse  to  bring  the  suit;  Siegman  v.  Electric  Vehicle 
Co.  72  X.  J.  Eq.  410,  65  Atl.  910,  holding  that  minority  stockholders  may  main* 
tain  suit  to  enjoin  or  set  aside  ultra  vires  acts  of  the  officers. 

1  L.  R.  A.  462,  BALLOU  v.  BALLOU,  110  X.  Y.  394,  18  X.  \.  8.  R.  620,  18  N. 
E.  118. 


1  L.R.A.  463]  L.  R.  A.  CASES  AS  AUTHORITIES.  112 

1  L.  R.  A.  463,  MULLINS  v.  CHICKERING,  110  N.  Y.  513,  18  N.  E.  377. 
Liability  of  bailee  denying  bailor's  right. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  National  Live  Stock  Bank,  178  111.  522, 
63  N.  E.  326,  holding  railroad  not  liable  on  bill  of  lading  where  goods  delivered 
to  true  owner;  Valentine  v.  Long  Island  R.  Co.  187  N.  Y.  127,  79  X.  E.  849,  Re- 
versing 102  App.  Div.  419,  92  N.  Y.  Supp.  645,  holding  that  carrier,  receiving 
goods  in  good  faith  for  transportation,  without  knowledge  that  it  was  its  prop- 
erty, may  set  up  ownership  in  the  goods  as  defense  to  action  for  conversion. 

Cited  in  note  (33  L.R.A.  (N.S.)  686)  on  right  to  assert  against  bailor,  hostile, 
adverse,  paramount  title  of  third  person. 

Distinguished  in  Leoncini  v.  Post,  37  N.  Y.  S.  R.  256,  13  N.  Y.  Supp.  825,  hold- 
ing bailor  cannot  defeat  right  of  bailee  to  return  of  property  by  claim  of  owner- 
ship of  third  person. 
Evidence    of   transactions    with    deceased    person. 

Cited  in  Hildick  v.  Williams,  21  N.  Y.  S.  R.  168,  3  N.  Y.  Supp.  817,  holding 
evidence  of  personal  transactions  admissible  in  action  to  recover  bonds  held  by 
decedent's  executors,  where  they  justify  under  title  of  third  person. 

1  L.  R.  A.  466,  WATUPPA  RESERVOIR  CO.  v.  FALL  RIVER,  147  Mass.  548, 

18  IS'.  E.  465. 
Rights  in  great  ponds  and  other  public   waters. 

Cited  in  Concord  Mfg.  Co.  v.  Robertson,  66  N.  H.  25,  18  L.  R.  A.  692,  footnote, 
p.  679,  25  Atl.  718,  holding  state  owns  great  ponds  in  trust  for  public;  Atty.  Gen. 
v.  Revere  Copper  Co.  152  Mass.  448,  9  L.  R.  A.  512,  25  N.  E.  605,  holding  deed  of 
great  pond  invalid  as  against  beneficial  right  of  public;  Proprietors  of  Mills  v. 
Com.  164  Mass.  233,  41  N.  E.  280,  holding  paramount,  public  rights  impliedly 
reserved  in  grant  of  rights  in  waters  of  great  pond;  St.  Anthony  Falls  Water 
Power  Co.  v.  St.  Paul  Water  Comrs.  168  U.  S.  372,  42  L.  ed.  505,  18  Sup.  Ct. 
Rep.  157,  holding  grant  of  right  to  utilize  power  of  public  river  subject  to  para- 
mount right  of  state  to  divert  water  for  public  purposes;  Union  Water  Power 
Co.  v.  Lewiston,  95  Me.  177,  49  Atl.  878  (obiter),  stating  power  company  not 
entitled  to  damages  for  taking  of  water  by  city  from  public  pond;  Auburn  v. 
Union  Water  Power  Co.  90  Me.  584,  38  L.  R.  A.  188,  footnote,  p.  188,  38  Atl.  561, 
holding  taking  of  waters  of  great  pond  for  public  uses  damnum  dbsque  injuria 
to  riparian  proprietors;  Proprietors  of  Mills  v.  Braintree  Water  Supply  Co.  149 
Mass.  485,  4  L.  R.  A.  275,  21  N.  E.  761,  holding  grantee  of  right  to  use  waters 
cf  pond  entitled  to  protection  therein  as  against  one  using  water  without  au- 
thority; Slater  v.  Gunn,  170  Mass.  514,  41  L.  R.  A.  273,  49  N.  E.  1017,  holding 
ordinance  granting  right  to  cross  unimproved  land  "to  fish  and  fowl"  in  great 
pond  does  not  confer  right  to  cross  to  cut  ice;  Watuppa  Reservoir  Co.  v.  Fall 
River,  154  Mass.  305,  13  L.  R.  A.  257,  footnote,  p.  255,  28  N.  E.  257,  holding 
grant  to  private  person  not  affected  by  subsequent  ordinance  declaring  public 
rights  in  great  pond;  Gardner  Water  Co.  v.  Gardner,  385  Mass.  194,  69  X.  E. 
1051,  holding  that  legislature  may  grant  to  private  company  the  right  to  appro- 
priate the  waters  of  a  great  pond  to  a  public  use,  and  to  charge  a  price  for 
furnishing  such  water;  Sprague  v.  Minon,  195  Mass.  583,  81  N.  E.  284,  holding 
that  legislature  has  power  to  grant  to  municipality  complete  control  over  a 
great  pond  to  be  used  for  waterworks  system;  Atty.  Gen.  v.  Herrick,  190  Mass. 
309,  76  N.  E.  1045,  holding  that  a  small  rocky  island  in  a  great  pond  belongs 
to  the  commonwealth,  where  it  has  never  been  appropriated  to  any  private  use. 

Cited  in  notes  (9  L.  R.  A.  196)  on  franchise  granted  to  water  companies  not 
exclusive  (12  L.  R.  A.  633)  on  public  rights  in  great  ponds;  (50  L.  R.  A.  739. 
746)  on  state  and  Federal  ownership  of  waters;  (58  L.  R.  A.  240)  on  right  to 


113  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  474 

acquire  water  supply  by  right  of  eminent  domain;    (25  Eng.  Rul.  Cas.  410)   on 
rights  of  riparian  proprietor  to  use  or  divert  water  of  stream. 

Distinguished  in  Concord  Mfg.  Co.  v.  Robertson,  66  N.  H.  29,  18  L.  R.  A.  694, 
footnote,  p.  679,  25  Atl.  718,  holding  right  of  public  owner  to  divert  waters  of 
great  pond  not  impliedly  reserved  in  riparian  grants. 
—  Compensation  on  exercise  of  public  use. 

Cited  in  American  Woolen  Co.  v.  Kennebec  Water  Dist.  102  Me.  155,  66  Atl.  316, 
holding  that  the  state  may  authorize  the  diversion  of  the  waters  of  great  ponds 
for  public  use  without  providing  compensation  to  riparian  proprietors;  Home  for 
Aged  Women  v.  Com.  202  Mass.  434,  24  L.R.A. (N.S.)  85,  89  N.  E.  124,  holding 
owner  of  land  adjoining  tidewater  not  entitled  to  compensation  where  legislature 
authorized  the  filling  in  of  land  lying  under  low  water,  by  which  his  access  to 
navigable  water  was  cut  off. 

Cited  in  note  (17  L.R.A.(N.S.)  1008)  on  power  to  condemn  riparian  rights 
apart  from  land  to  which  appurtenant. 

Distinguished  in  Dodge  v.  Rockport,  199  Mass.  276,  85  X.  E.  172,  holding  ri- 
parian owner  on  stream  flowing  from  a  great  pond  entitled  to  compensation  for 
injury   sustained  by  the   diversion  of  the  waters,  where  the   legislature  makes 
compensation  as  a  condition  for  such  diversion. 
Damages   for  trespass. 

Cited  in  note    (53  L.  R.  A.  635)    on  extent  of  trespassers  liability  for  conse- 
quential injuries. 
Time  for  allowing;  amendments. 

Cited  in  Merrill  v.  Beckwith,  168  Mass.  75,  46  N.  E.  400,  allowing  amendment 
of  bill  after  entry  on  docket,  "Bill  dismissed  with  costs." 

1  L.  R.  A.  474,  FOTHERINGHAM  v.  ADAMS  EXP.  CO.  36  Fed.  252. 
False   imprisonment. 

('it nl  in  Whitman  v.  Atchison,  T.  &  S.  F.  R.  Co.  85  Kan.  157,  34  L.R.A.(N.S.) 
1033,  116  Pac.  234,  holding  that  detention  by  conductor  of  injured  passenger  to 
obtain  statement  of  accident  is  unlawful  restraint  of  liberty. 

Cited  in  notes  (14  L.R.A.  793)  on  liability  of  master  for  false  arrest,  imprison- 
ment, or  malicious  prosecution  by  servant;  (20  L.R.A. (N.S.)  969)  as  to  whether 
false  imprisonment  may  be  predicated  of  partial  or  conditional  restraint;  (67  Am. 
St.  Rep.  419;  118  Am.  St.  Rep.  722)  on  what  amounts  to  false  imprisonment. 
Punitive  or  exemplary  damages. 

Cited  in  Roza  v.  Smith,  65  Fed.  596,  awarding  punitive  damages  for  detaining 
in  irons  stranger  accused  of  instigating  desertion  of  seaman;  National  Surety 
Co.  v.  Mabry,  139  Ala.  225,  35  So.  698.  holding  verdict  for  $7,500  damages  for 
malicious  prosecution  for  embezzlement  not  excessive;  Shoemaker  v.  Sonju,  15 
N.  D.  524,  108  X.  W.  42,  11  A.  &  E.  Ann.  Cas.  1173,  holding  that  malice  justify- 
ing exemplary  damages  may  be  implied  from  a  wanton  and  reckless  assault; 
Advertiser  Co.  v.  Jones,  169  Ala.  210,  53  So.  759,  on  punitive  damages  for  libel. 

Cited  in  notes  (1  L.  R.  A.  682)  on  punitive  or  exemplary  damages  for  personal 
injuries;  (13  L.  R.  A.  600)  on  exemplary  or  punitive  damages  when  allowed. 

Distinguished  in  Lampert  v.  Judge  &  D.  Drug.  Co.  119  Mo.  App.  700,  holding 
exemplary  damages  not  recoverable  where  cigar  dealer  put  inferior  brand  in  box 
marked  with  plaintiffs  trademark,  and  sold  them  as  his  make. 
Remission    of    damages. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Robbins,  57  Ark.  386,  21  S.  W.  886, 
holding  award  of  excessive  damages  demands  exercise  of  supervisory  control. 
L.R.A.  Au.  Vol.  I.— 8. 


1  L.R.A.  474]  L.  R.  A.   (ASKS   AS  :-UTIIORITIES. 

Corporate    liability   for   tort. 

Cited  in  Southern  Exp.  Co.  v.  Flatten,  36  C.  C.  A.  49,  93  Fed.  939,  holding 
corporation  liable  for  assault  by  its  detectives. 

1  L.  R.  A.  476,  MISSOURI  P.  R.  CO.  v.  EVANS,  71  Tex.  361,  9  S.  W.  325. 
Duty  towards  intoxicated  or  incapacitated  pnssenjser. 

Cited  in  Price  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  75  Ark.  492,  112  Am.  St.  Rep.  79, 
88  S.  W.  575,  affirming  verdict  against  railway  for  injury  and  death  of  intoxi- 
cated passenger  in  such  condition  when  received  and  who  while  unwatched  went 
to  door  and  was  thrown  off. 

Cited  in  footnotes  to  Wheeler  v.  Grand  Trunk  R.  Co.  54  L.  R,  A.  955,  which 
holds  carrier  liable  to  intoxicated  passenger  for  injury  preventable  by  due  care; 
•Chesapeake  &  O.  R.  Co.  v.  Saulsberry,  56  L.  R.  A.  580,  which  holds  carrier  not 
liable  for  injury  to  lawfully  ejected  intoxicated  passenger,  attempting  to  pursue 
and  re-enter  train;  Southern  P.  R.  Co.  v.  Tarin,  54  L.  R.  A.  240,  which  holds 
railroad  company  liable  for  failure  to  warn  foreign  passenger  of  danger  that  car 
may  be  undermined;  Southern  R.  Co.  v.  Hobbs,  63  L.R.A.  68,  which  holds  promise 
"by  conductor  to  assist  partially  blind  passenger  in  alighting  not  an  undertaking 
to  escort  her  from  her  seat  to  the  platform;  Korn  v.  Chesapeake  &  0.  R.  Co.  63 
L.R.A.  873,  which  denies  liability  of  carrier  for  death  of  intoxicated  passenger 
expelled  from  train  within  village  when  temperature  was  near  the  freezing  point; 
Fox  v.  Michigan  C.  R.  Co.  68  L.R.A.  336,  which  holds  carrier  liable  where  em- 
ployees in  charge  of  train  knowingly  permit  person  beastly  drunk  to  go  out 
alone  on  platform  of  moving  car. 

Cited  in  note  (19  L.  R.  A.  327)  on  exposure  of  drunken  passenger  to  danger  by 
ejection  from  c£r. 
Intoxication    as    affecting:    contributory    neg'lig'ence. 

Cited  in  Williams  v.  Rand,  9  Tex.  Civ.  App.  635,  30  S.  W.  509,  raising,  with- 
out deciding,  question  of  invalidity  of  instrument  because  of  signer's  intoxication. 

Cited  in  footnote  to  Bageard  v.  Consolidated  Traction  Co.  49  L.  R.  A.  424, 
which  holds  contributory  negligence  by  reason  of  intoxication  prevents  recovery. 

Cited  in  notes  (40  L.R.A.  131)  on  intoxication  as  affecting  negligence;  (11  Am. 
St.  Rep.  67)  on  intoxication  as  affecting  contributory  negligence;  (25  Am.  St.  Rep. 
40,  44)  on  intoxication  as  contributory  negligence. 

Distinguished  in  Rozwadosfskie  v.   International  &  G.  N.  R.  Co.   1   Tex.  Civ. 
App.  493,  20  S.  W.  872,  holding  drunkard's  contributory  negligence  prevents  re- 
covery for  injury  not  preventable  by  ordinary  care. 
Dnty  after  discovering  dan&er. 

Cited  in  International  &  G.  N.  R.  Co.  v.  Tabor,  12  Tex.  Civ.  App.  290,  33 
S.  W.  894,  holding  contributory  negligence  no  excuse  for  injury  avoidable  by  or- 
dinary care  after  danger  is  discovered. 

Distinguished  in  Martin  v.  Texas  &  P.  R.  Co.  87  Tex.  123,  26  S.  W.  105-2. 
holding  railroad  not  liable  for  damage  from  escaping  sparks  where  owner  omits 
ordinary  precaution. 

1  L.  R.  A.  479,  HEDGE  v.  GLENNY,  75  Iowa,  513,  39  N.  W.  818. 
Burden   of  proof. 

Cited  in  notes  (56  L.R.A.  824)  on  burden  of  proof  of  husband's  debt  to  wife  on 
account  of  property  received  from  her;   (11  Am.  St.  Rep.  758)  on  burden  of  proof 
'as  to  fraudulent  conveyances. 
Contracts    between   biiabniid   and   wife. 

Cited  in  Lambrecht  v.  Patten,  15  Mont.  266,  38  Pac.  1063.  holding  payment  by 
husband  to  wife  of  debt  honestly  due  not  fraud  in  itself;  Carse  v.  Reticker  95 


115  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  482 

Iowa,  29,  58  Am.  St.  Rep.  421,  63  X.  W.  461,  holding  earnings  from  contract  sub- 
let to  wife  by  husband  not  subject  to  husband's  debts;  Payne  v.  Wilson,  76  Iowa, 
280,  41  X.  W.  45,  holding  wife  not  barred  as  to  creditors  from  asserting  right 
to  money  loaned  husband  without  notice:  Heacoek  v.  Heacock,  108  Iowa,  549, 
75  Am.  St.  Rep.  273,  79  X.  \V.  353  (dissenting  opinion),  majority  holding  wife 
not  empowered  to  contract  with  husband,  by  statute  empowering  her  to  contract 
as  if  sole. 

Cited  in  notes   (13  Am.  St.  Rep.  859)   on  husband's  right  to  wife's  earnings; 
(58  Am.  St.  Rep.  496)  on  agreements  to  compensate  husband  or  wife  for  services, 
or  to  relinquish  claims  on  earnings  or  profits;   (90  Am.  St.  Rep.  550)  on  attacks 
by  creditors  on  conveyances  made  by  husbands  to  wives. 
Rig-tit  of  wife  io  her  own   earnings. 

Cited  in  Ehlers  v.  Blumer,  129  Iowa.  171,  105  X.  W.  406,  holding  property  pur- 
chased by  wife's  earnings  in  keeping  boarders,  not  liable  for  husband's  debts; 
Aultman  Engine  &  Thresher  Co.  v.  Greenlee,  134  Iowa,  372,  111  X*.  W.  1007,  hold- 
ing that  husband's  creditors  cannot  have  set  aside  repayment  by  husband  to  wife 
of  her  earnings  as  music  teacher  which  she  had  paid  out  for  family  necessities 
upon  agreement  to  be  repaid;  Bartholomew  v.  Adams,  143  Iowa,  359,  121  N.  W. 
1026,  holding  that  married  woman  may  maintain  action  in  her  own  name  to 
.recover  for  services  rendered  in  keeping  boarders. 

1  L.  R.  A.  480,  GRAXD  RAPIDS  &  I.  R.  CO.  v.  SPARROW,  36  Fed.  210. 

KiKht  to  trial  ny  Jury. 

Cited  in  McLeod  v.  Lloyd,  43  Or.  275,  71  Pac.  795,  holding  right  to  jury  trial 
not  infringed  by  act  giving  any  person  claiming  interest  in  realty  not  in  pos- 
session of  another,  right  to  determination  in  equity. 

Cited  irvfootnotes  to  Brown  v.  Circuit  Judge,  5  L.  R.  A.  226,  which  holds  stat- 
ute transferring  chancery  powers  to  jury,  invalid;  State  v.  Trenton,  5  L.  R.  A. 
352,  which  holds  ju:.f  trial  not  demandable  of  right,  in  absence  of  statute,  on 
indictment  for  violation  of  municipal  police  regulation;  People  v.  Powell,  11  L. 
R.  A.  75,  which  holds  common-law  right  to  jury  trial  violated  by  change  of  venue 
•without  consent  of  defendant  in  criminal  case;  Craig  v.  State,  16  L.  R.  A.  358, 
•which  upholds  statute  authorizing  court  to  examine  witnesses  upon  confession  of 
•murder;  Hall  v.  Armstrong,  20  L.  R.  A.  366,  which  holds  jury  trial  not  demand- 
able  in  book  account. 

Cited  in  notes    (1   L.  R.  A.   633)    on  constitutional  right  to  trial  by  jury  in 
•criminal  cases  construed;    (15  L.  R.  A.  614)   on  constitutional  right  to  jury  for 
assessment  of  damages  on  default;    (15   L.  R.   A.  287)    on  constitutional   right 
'to  jury  trial  in  equitable  cases,  on  account  of  demand  for  damages. 
Federal   jurisdiction. 

Cited  in  notes    ( 18  L.  R.  A.  267 )    on  adoption  by  Federal  courts  of  remedies 
•created  by  state  statutes;    (2   L.  R.  A.   225)    on  equity  jurisdiction   of  Federal 
-courts;    (12  L.R.A.(X.S.)   76,  78)   on  effect  of  legal  remedy  upon  equitable  juris- 
•diction  of  Federal  courts  to  remove  cloud  on  title. 
\i-<-«-*-it  >    -of  posaession  to  Quiet   title. 

Cited  in  footnote  to  Oppenheimer  v.  Levi,  GO  L.  R.  A.  729,  which  holds  posses- 
sion unnecessary  for  reversioner  to  maintain  action  for  removal  of  cloud  upon, 
title. 

.1  L.  R.  A.  482,  DAVIDSOX  v.  OLD  PEOPLE'S  MUT.  BEX.  SOC.  39  Minn.  303, 

39  X".  W.  803. 
'Duty  of  inutnal  insurance  company  to  take  notice  of  statute. 

<Cited  in  Montgomery  v.  Whitbeck,  12  X.  D.  391,  96  X.  W.  327,  holding  member 


1  L.R.A.  482]  L.  R.  A.  <  A>1->   AS  AUTHORITIES.  116 

of  mutual  insurance  company  bound  to  take  notice  of  statute  authorizing  and 
controlling  organization  and  business,  as  well  as  of  articles  and  by-laws. 
How   far   insurance  company  bound  by  nets  of  agent. 

Cited  in  footnotes  to  Follet  v.  United  States  Mut.  Acci.  Asso.  12  L.  R.  A.  315, 
which  holds  knowledge  of  agent  waives  inaccuracy  in  application,  though  policy 
states  agents  cannot  waive  its  conditions;  Cole  v.  Union  Cent.  L.  Ins.  Co.  47 
L.  R,  A.  201,  which  holds  provisions  of  policy,  issued  on  contract  with  general 
agent,  of  which  insured  had  no  knowledge  or  information,  deemed  waived. 
Waiver  of  by-lavr  of  insurance  company  or  benefit  association. 

Cited  in  Houdeck  v.  Merchants  &  B.  Ins.  Co.  102  Iowa,  306r  71  X.  W.  354, 
holding  by-law  waived  if  inconsistent  with  policy;  Elliott  v.  Safety  Fund  Life 
Asso.  76  Mo.  App.  567,  holding  by-laws  not  part  of  policy  not  binding  on  insured ; 
\Yiberg  v.  Minnesota  Scandinavian  Relief  Asso.  73  Minn.  302,  76  X.  \V.  37. 
holding  mutual  benefit  association  may  waive  provision  of  by-laws  limiting 
eligibility  to  membership;  Ledebuhr  v.  Wisconsin  Trust  Co.  112  Wis.  662,  88 
X.  W.  607,  holding  issuance  of  benefit  certificate  violating  by-law  requiring  bene- 
ficiary to  be  named,  a  waiver  of  by-law;  Wagner  v.  Supreme  Lodge,  K.  &  L. 
of  H.  128  Mich.  663.  87  X.  W.  903,  holding  issuance  of  membership  certificate  a 
waiver  of  by-law  making  initiation  condition  precedent;  Sovereign  Camp  of 
Woodmen  v.  Fraley,  94  Tex.  206,  51  L.  R.  A.  902,  59  S.  W.  879.  holding  mutual 
benefit  association  assuming  duty  of  notifying  member  of  constitutional  provision, 
bound  by  notice  actually  given:  Matthes  v.  Imperial  Acci.  Asso.  110  Iowa,  229. 
SI  N.  W.  484,  holding  purpose  of  mutual  benefit  association  not.  as  matter  oj 
law,  known  to  member;  McCoy  v.  Xorthwestern  Mut.  Relief  Asso.  92  Wis.  533. 
47  L.  R.  A.  684,  66  N.  W.  697,  holding  limitation  of  liability  in  certificate,  though 
not  authorized  by  by-laws,  binding  on  member;  Moore  v.  Union  Frateinal  Acci. 
Asso.  103  Iowa,  428,  72  X.  W.  645,  holding  indemnity,  absolute  on  face  of  member- 
ship certificate,  limited  by  reference  on  back  to  particular  fund;  Hesiuger  v.  Home 
Benefit  Asso.  41  Minn.  517,  43  X.  W.  481,  holding  member  bound  by  article  of 
mutual  benefit  association  making  claim  payable  out  of  particular  fund. 

Cited  in  notes    (47  L.  R.  A.  681)    on  conflict  between  by-laws  and  certificate 
or  policy  of  a  mutual  benefit  society  or  insurance  company;    (8  L.  R.  A.  114)   on 
contract  of  mutual  benefit  association;   (19  Am.  St.  Rep.  784)   on  waiver  of  by- 
laws by  mutual  benefit  association. 
Reinstatement    of    members    of    mutual   benefit    associations. 

Cited  in  Dickey  v.  Covenant  Mut.  Life  Asso.  82  Mo.  App.  376,  holding  member 
wrongfully  refused  reinstatement  may  recover  premiums;  Supreme  Lodge  Xat. 
Reserve  Asso.  v.  Turner,  19  Tex.  Civ.  App.  353,  47  S.  W.  44,  holding  additional 
representations  required  from  member  entitled  to  reinstatement  not  binding; 
Mettner  v.  Xorthwestern  Xat.  L.  Ins.  Co.  127  Iowa,  212.  103  X*.  W.  112,  holding 
society  waives  any  other  conditions  and  is  bound  by  original  contract. 

Cited  in  note  (52  Am.  St.  Rep.  577)  on  reinstatement  of  members  of  mutual 
benefit  associations. 
Construction  of  certificate  of  insurance. 

Distinguished  in  Laker  v.  Royal  Fraternal  Union,  95  Mo.  App.  366,  holding  that 
by-laws  and  certificate  of  insurance  are  to  be  construed  together,  where  by-laws 
are  referred  to  in  certificate  as  part  of  contract. 

1  L.  R.  A.  483,  STRIXGHAM  v.  STEWART.  Ill  X.  Y.  188,  13  X.  E.  870. 
>Iaster*s   duty   to    provide    for    servant's   safety. 

Cited  in  Benfield  v.  Vacuum  Oil  Co.  75  Hun.  213,  27  X'.  Y.  Supp.  16.  holding 
master  not  bound  to  instruct  servant  about  danger  not  reasonably  to  be  appre- 


117  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  483 

bended;  Cobb  v.  Welcher,  75  Hun,  284,  26  N.  Y.  Supp.  1068,  holding  statutes  do 
not  require  factory  proprietor  to  guard  machinery  against  extraordinary  acci- 
dents; Stewart  v.  New  York,  O.  &  W.  R.  Co.  28  X.  Y.  S.  R.  218,  8  N.  Y.  Supp. 
19,  holding  it  master's  duty  to  provide  suitable  tools  and  competent  workmen  to 
direct  labor;  Hogan  v.  Smith,  31  N.  Y.  S.  R.  801,  9  N.  Y.  Supp.  881,  holding 
employer  required  to  perform  his  legal  duties  before  being  exempt  from  liability 
for  injuries  to  employees;  Dingley  v.  Star  Knitting  Co.  34  N.  Y.  S.  R.  991,  12 
N.  Y.  Supp.  31,  denying  liability  for  starting  of  safe  machine  in  unknown  manner; 
Harley  v.  Buffalo  Car  Mfg.  Co.  142  N.  Y.  34,  36  N.  E.  813,  denying  liability  for 
breaking  of  belt  fastener  not  shown  less  safe  than  others;  Doyle  v.  White,  9  App. 
Div.  526,  41  N.  Y.  Supp.  628,  denying  liability  for  breaking  of  sufficient  eyebolt 
through  defect  not  observable;  McGoldrick  v.  Metcalf,  37  N.  Y.  S.  R.  611,  14 
N.  Y.  Supp.  289,  denying  liability  for  breaking  of  reasonably  safe  wooden  wedge 
subjected  to  unusual  strain  by  injured  servant;  McGovern  v.  Central  Vermont 
R.  Co.  24  N.  Y.  S.  R.  948,  6  N.  Y.  Supp.  838,  denying"  liability  for  accidental 
closing  of  trap  door  of  grain  bin  of  kind  safely  used  for  seventeen  years;  Fan- 
nessey  v.  Western  U.  Teleg.  Co.  6  Misc.  323,  26  N.  Y.  Supp.  796,  denying  liability 
for  striking  of  injured  servant  by  brick  discharged  from  suitable  chute;  Camp- 
bell v.  Cunard  S.  S.  Co.  36  N.  Y.  S.  R.  854,  13  N.  Y.  Supp.  288,  denying  liability 
for  slipping  of  drum  of  soda  on  nondefective  truck  and  gangway;  Walsh  v.  Com- 
mercial Steam  Laundry  Co.  11  Misc.  5,  31  N.  Y.  Supp.  833,  denying  liability  for 
wrinkling  of  roller  cover,  frequently  occurring,  and  easily  remedied  by  employees; 
Glassheim  v.  New  York  Economical  Printing  Co.  13  Misc.  176,  34  N.  Y.  Supp.  69, 
denying  liability  for  clothing  caught  in  set  screw  of  standard  shafting,  long  used 
smd  in  good  repair;  Petaja  v.  Aurora  Iron  Min.  Co.  106  Mich.  464,  32  L.  R.  A. 
438,  58  Am.  St.  Rep.  505,  64  N.  W.  335,  66  N.  W.  951,  denying  liability  for  fall 
of  ore  from  roof  of  chamber  made  by  servants  in  mining;  Kennedy  v.  Jackson 
Agri.  Iron  Works,  1.2  Misc.  339,  33  N.  Y.  Supp.  630,  denying  liability  for  falling 
of  reasonably  safe  and  suitable  derrick;  Butler  v.  Tovvnsend,  126  N.  Y.  110,  26 
N.  E.  1017,  denying  liability  for  breaking  of  defective  plank  in  temporary  staging; 
Kuhn  v.  Delaware,  L.  &  W.  R.  Co.  77  Hun,  393,  25  N.  Y.  Supp.  883,  requiring 
master  to  provide  safe  scaffolding;  Scherer  v.  Holly  Mfg.  Co.  86  Hun,  39.  33  N.  Y. 
Supp.  205,  holding  master  responsible  for  defective  adjustment  of  apparatus  by 
employee,  resulting  in  injury  to  another  employee;  Dwyer  v.  Hills  Bros.  Co.  79 
App.  Div.  48,  79  N.  Y.  Supp.  785,  holding  owner  not  liable  for  injury  due  to 
fall  occasioned  by  slight  depression  of  steel  bars  of  door  mat;  South  Baltimore 
Car  Works  v.  Schaefer,  96  Md.  109,  94  Am.  St.  Rep.  560,  53  Atl.  665,  denying 
right  of  recovery  where  accident  was  not  shown  to  have  been  caused  by  unsafe 
machine  or  by  defect  discoverable  upon  inspection;  Wilcox  v.  Hebert,  90  Ark.  149, 

118  S.  Wr.  402,  holding  that  error  of  master  in  selecting  a  more  dangerous  kind 
of  machine  than  he  might  have  done,  does  not  of  itself  render  him  liable  for 
injury  to  employee;  SteAvart  &  Co.  v.  Harman,  108  Md.  455,  20  L.R.A. (N.S.)  232, 
70  Atl.  333,  holding  master  not  liable  for  injury  to  employee  caused  by  the  break- 
ing of  a  window  which  it  was  his  duty  to  open  and  close,  where  it  was  shown 
that  it  was  properly  constructed  and  the  master  had  no  notice  of  defects;  Monsen 
v.  Crane,  99  Minn.  189,  108  N.  W.  933;  Burns  v.  Old  Sterling  Iron  &  Min.  Co.  188 
X.  Y.  184.  SO  N.  E.  927, — holding  master  bound  only  to  use  reasonably  safe  and 
proper  appliances;   Hahn  v.  Conried  Metropolitan  Opera  Co.  126  App.  Div.  817, 
111    X.   Y.  Supp.  161,  holding  employer  not  liable  for  injury  to  employee  from 
collapse  of  a  bridge  on  a   stage,  where  he  had  furnished   proper  material   and 
competent  persons  for  its  construction;  Hynes  v.  State,  63  Misc.  594,  118  X.  Y. 
Supp.  621,  holding  state  not  liable  for  injury  caused  by  slight  elevation  on  canal 
bridge,  where  the  plaintiff  knew  of  the  elevation  and  could  have  avoided  it. 


1  L.R.A.  483]  L.  R.  A.  CASES  AS  AUTHORITIES.  118 

Cited  in  notes  (6  L.R.A.  646)  on  inability  of  volunteer  to  recover  for  injuries, 
except  where  caused  by  wantonness  or  malice;  (6  L.R.A.  (X.S.)  605)  on  different 
forms  of  stating  general  rule  with  respect  to  master's  duty  as  to  places  and 
appliances;  (16  L.R.A. (X.S.)  133)  on  furnishing  servant  article  in  general  use 
as  measure  of  master's  duty;  (10  Am.  St.  Rep.  835)  on  duty  to  supply  safe 
machinery,  etc.,  for  servants. 

Distinguished  in  Kuhn  v.  Delaware.  L.  &  W.  R.  Co.  92  Hun,  78,  36  X.  Y.  Supp. 
339;  Sciolina  v.  Erie  Preserving  Co.  7  App.  Div.  421,  39  X.  Y.  Supp.  916; 
Grifhahn  v.  Kreizer,  02  App.  Div.  417,  70  X.  Y.  Supp.  973;  Kern  v.  De  Castro. 
&  D.  Sugar  Ref.  Co.  24  X.  Y.  S.  R.  750,  5  X.  Y.  Supp.  548:  Van  Tasscll  v.  Xew 
York,  L.  E.  &  W.  R.  Co.  1  Misc.  305,  20  X.  Y.  Supp.  708;  Daley  v.  Union  Dry 
Dock  Co.  9  Misc.  396,  30  X.  Y.  Supp.  337;  Sappenfield  v.  Main  Street  &  Agri. 
Park  R.  Co.  91  Cal.  57,  27  Pac.  590;  Myers  v.  Hudson  Iron  Co.  150  Mass.  130, 
15  Am.  St.  Rep.  176,  22  N.  E.  631, —  holding  that,  on  conflicting  testimony. 
questions  of  due  care  or  reasonable  safety  of  place,  machinery,  or  appliances  are- 
for  jury. 
On  elevators. 

Cited  in  Kern  v.  DeCastro,  &  D.  Sugar  Ref.  Co.  125  X.  Y.  54,  25  X.  E.  I071r 
holding  master  not  liable  for  lack  of  safety  appliances  to  prevent  fall  of  freight 
elevator;  Ingram  v.  Fosburgh,  73  App.  Div.  134.  70  X.  Y.  Supp.  344,  denying 
liability  for  falling  of  suitable  freight  elevator  with  servant  forbidden  to  ride 
thereon;  Hoehmann  v.  Moss  Engraving  Co.  4  Misc.  162,  23  X.  Y.  Supp.  787,  deny- 
ing liability  for  failure  to  have  suitable  freight  elevator  sheathed;  Sullivan  v. 
Poor,  32  Misc.  576.  66  X.  Y.  Supp.  409,  denying  liability  for  defect  in  rented 
freight  elevator,  pronounced  safe  on  inspection;  Hart  v.  Xaumburg,  123  X.  Y.  644. 
3  Silv.  Ct.  App.  192.  25  X.  E.  385.  denying  liability  for  unknown  defect  in  most 
approved  elevator;  White  v.  Eidlitz,  19  App.  Div.  258,  46  X.  Y.  Supp.  184.  denying 
liability  for  unexplained  obstruction  of  elevator  well  by  planks;  Montgomery  v. 
Bloomingdale,  34  App.  Div.  378,  54  X.  Y.  Supp.  329,  denying  liabilit}*  for  jolting 
of  elevator,  not  occurring  through  neglect  of  master;  Stackpole  v.  \Vray.  74  App. 
Div.  313,  77  X.  Y.  Supp.  633,  denying  liability  for  breaking  of  elevator  bolt  with 
no  external  evidence  of  weakness;  Stackpole  v.  Wray,  99  App.  Div.  264,  90  X.  Y. 
Supp.  1045,  holding  master  not  liable  for  injury  caused  by  fall  of  an  elevator 
where  he  had  used  reasonable  care  in  keeping  it  safe,  and  had  no  knowledge  of 
any  defect;  Knickerbocker  v.  General  Railway  Signal  Co.  133  App.  Div.  790,  118 
N.  Y.  Supp.  82,  holding  master  bound  only  to  operate  elevator  in  manner  rea- 
sonably safe  for  employees,  and  not  bound  to  adopt  the  best  possible  method. 

Distinguished  in  Griffen  v.  Manice,  47  App.  Div.  72.  62  X.  Y.  Supp.  364.  holding 
landlord  bound  to  use  utmost  care  as  to  defects  in  machinery  of  passenger  ele- 
vator. 
Railroad  employees. 

Cited  in  Xorfolk  &  \V.  R.  Co.  v.  Cromer,  99  Va.  787,  40  S.  E.  54,  holding  that 
railroad  need  not  provide  latest  inventions  and  appliances;  Bennett  v.  Long 
Island  R.  R.  Co.  163  X.  Y.  5,  57  X.  E.  70.  denying  liability  for  customary  failure 
to  lock  or  target  perfect  standard  switch  which  had  been  safely  u>rd :  Siiem-er  v. 
Xew  York  C.  &  H.  R.  R.  Co.  67  Hun,  199,  22  X.  Y.  Supp.  100.  denying  liability 
for  unblocked  frog,  though  such  were  not  in  general  use  on  other  railroads; 
Powers  v.  Xew  York  C.  &  H.  R.  R.  Co.  60  Hun,  24,  14  X.  Y.  Snpp.  4nS.  denying 
liability  for  hidden  flaw  in  coupling  pin;  France  v.  Rome,  W.  &  O.  R.  Co.  88  Hun, 
320,  34  N.  Y.  Supp.  408,  denying  liability  for  failure  to  equip  train  with  air 
brakes  before  their  practicability  was  thoroughly  established;  Leary  v.  Lehigh 
Valley  R.  Co.  76  Hun,  577.  28  X.  Y.  Supp.  187,  denying  liability  for  failure  to 
furnish  boiler  on  engine  with  fusible  plug,  and  provide  light  for  test  cocks;  Wy- 


31!)  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  481 

man  v.  Lehigh  Valley  R.  Co.  86  C.  C.  A.  161,  158  Fed.  962;  Healy  v.  Buffalo,  R.  & 
P.  R.  Co.  Ill  App.  Div.  621,  97  N1.  Y.  Supp  801, — holding  master  required  only  to 
use  reasonably  safe  appliances,  and  in  their  selection  he  may  rely  on  the  judg- 
ment of  others  in  the  same  line  of  business. 

Cited  in  note  (48  L.  R.  A.  70)   on  liability  of  employer  for  injuries  received  by 
servants  owing  to  the  want  of  blocking  at  switches. 
\en]i-«'i><-<-   of  coservant. 

Cited  in  Filbert  v.  Delaware  &  H.  Canal  Co.  121  N.  Y.  212,  23  N.  E.  1104, 
holding  master  not  liable  where  removal  of  plank  by  servant  caused  coservant's- 
injuries ;  Miles  v.  The  Servia,  44  Fed.  944,  where  a  servant  allowed  skid  to  catch 
in  ship  hatch  and  injure  coservant;  Belt  v.  Henry  Du  Bois  Sons  Co.  97  App.  Div. 
394.  89  X.  Y.  Supp.  1072,  holding  master  not  liable  for  injury  to  employee  on  pile 
driver  caused  by  the  negligence  of  the  captain  of  a  tug  boat  used  in  moving  it. 

Cited  in  footnotes  to  Elliot  v.  Chicago,  M.  &  St.  P.  R.  Co.  3  L.  R.  A.  363,  which 
holds  master  not  liable  to  section  foreman  for  negligence  of  conductor;  Gulf, 
C.  &  S.  F.  R.  Co.  v.  Blohn,  4  L.  R.  A.  764,  which  holds  railroad  fireman  cannot 
recover  for  injuries  caused  by  engineer's  negligence. 

Cited  in  notes  (3  L.  R.  A.  560;  4  L.  R.  A.  795)  on  nonliability  of  master  for 
negligence  of  fellow  servant:  (4  L.  R.  A.  852)  on  liability  of  master  in  case  of 
negligence  of  superior  servant;  (8  L.  R.  A.  820)  on  cases  of  accidents  in  the  use 
of  elevators;  (50  L.  R.  A.  439)  on  common  employment  of  servants  operating 
hoisting  apparatus  and  other  servants  in  the  same  establishment;  (50  L.  R.  A. 
460)  on  common  employment  of  servants  engaged  in  work  on  buildings  in  process 
of  erection;  (1  L.R.A.(X.S.)  682)  on  departmental  theory  as  affecting  different 
cla-ses  of  workmen  operating  or  using  machinery,  or  in  building  a  structure. 
—  Co-servants'  fault  in  operating  elevator. 

Cited  in  Zilver  v.  Graves  Co.  106  App.  Div.  586,  94  X.  Y.  Supp.  714,  holding 
master  not  liable  for  an  injury  to  clerk  employed  to  address  envelopes,  where  the 
injury  was  caused  by  the  negligence  of  one  employed  by  the  same  master  to  run 
an  elevator. 
Evidence  of  longr  nse  of  article  without  accident. 

Cited  in  William  Laurie  Co.  v.  McCullough,  174  Ind.  487,  90  N.  E.  1014,  holding 
admissible  evidence  that  floor  dressing  had  been  used  for  several  years  and  no 
similar  accident  had  occurred  therefrom. 
Abatement  of  actions  after  reversal. 

Cited  in  Carr  v.  Rischer,  119  N.  Y.  125,  23  X.  E.  296,  stating  that  court, 
after  reversing  plaintiff's  judgment,  denied  new  trial,  defendant  being  dead; 
Molloy  v.  Starin.  ]34  App.  Div.  543,  119  X.  Y.  Supp.  610,  holding  that  where  ver- 
dict in  action  for  negligence  has  been  "reversed,  annulled  and  held  for  nothing" 
and  new  trial  ordered  the  action  abates  if  defendant  dies  before  the  new  trial. 

1  L.  R.  A.  487,  ECKERSOX  v.  CRIPPEX,  110  X.  Y.  585,  18  X.  E.  443. 
License  to   create   linrden   upon   land. 

Cited  in  White  v.  Manhattan  R.  Co.  139  X.  Y.  24,  34  X.  E.  887,  holding  exe- 
cuted written  permission  to  build  railroad  in  street,  mere  license;  Thoemke  v. 
Fiedler.  i»l  Wi*.  390.  64  X.  W.  1030,  holding  oral  permission  to  make  and  main- 
tain ditch  across  land  of  another,  mere  license;  Xowlin  Lumber  Co.  v.  Wilson,  119 
Mich.  413.  78  X.  W.  338,  holding  permission  by  letter  to  build  road  across 
writer's  land,  acted  upon,  mere  license;  Kommer  v.  Daly,  104  App.  Div.  531,  93 
X.  Y.  Supp.  1021.  holding  mere  license  revokable  whether  founded  upon  a  consid- 
eration or  not:  Shaw  v.  Proffitt,  57  Or.  202,  109  Pac.  584,  holding  that  written 
permission  to  construct  ditch  constitutes  grant  of  right  of  way  and  not  mere  re- 


1   L.R.A.  487]  L.  R.  A.  (ASKS   AS  AUTHORITIES.  120 

vocable  license;  Ely  v.  State,  199  X.  Y.  219,  92  X.  E.  629,  holding  that  state 
acquired  prescriptive  right  to  flood  lands  by  continuous  use,  during  low-water 
reasons,  of  flash  boards,  for  more  than  twenty  years. 

Cited  in  footnote  to  Wilson  v.  St.  Paul,  M.  &  M.  R.  Co.  4  L.  R.  A.  378.  which 
holds  parol  license  to  drain  revocable  without  notice. 

Cited  in  notes  (49  L.  R.  A.  507)  on  revocability  of  license  to  maintain  a  burden 
on  land,  after  the  licensee  has  incurred  expense  in  creating  the  burden;  (10 
L.  R.  A.  487)  on  effect  of  executed  license. 

Explained  in  George  v.  Xew  York,  42  Misc.  273,  86  N.  Y.  Supp.  (510,  holding 
acquiescence  in  use  by  servient  owner  for  prescribed  period  does  not  mean  con- 
sented or  assented  to  or  suffered  without  objection. 
Revocation   by   conveyance   or  alienation   of  title. 

Cited  in  Bunke  v.  Xew  York  Teleph.  Co.  110  App.  Div.  248,  97  N.  Y.  Supp.  66, 
Tiolding  that  conveyance  to  third  party  revokes  a  license  to  string  wires  upon 
the  premises;  Re  White  Plains,  124  App.  Div.  3,  108  N.  Y.  Supp.  596,  holding  li- 
cense to  enter  upon  lands  revoked  ipso  facto  by  a  conveyance  of  the  land  to  a 
third  person;  Clark  v.  Strong,  105  App.  Div.  182,  93  N.  Y.  Supp.  514,  on  mere 
license  being  revoked  by  the  death  of  the  grantor  even  though  a  consideration 
were  paid  therefor. 

Cited  in  note  (31  Am.  St.  Rep.  714)  on  revocation  of  parol  licenses  by  convey - 


1  L.  R.  A.  490,  SPERB  v.  McCOUX,  110  N.  Y.  605,  18  N.  E.  441. 
Action    on   administrator's    bond. 

Cited  in  Hood  v.  Hayward,  124  X.  Y.  10,  26  X.  E.  331,  as  not  preventing 
Diction  on  administrator's  bond,  without  unsatisfied  execution;  McCoun  v.  Sperb, 
-53  Hun,  166,  6  N.  Y.  Supp.  106,  holding  that  surety  may  call  upon  either  admin- 
istrator for  indemnification;  Re  Scudder,  21  Misc.  183,  47  N.  Y.  Supp.  101.  sus- 
taining action  on  bond  by  surviving  administratrix;  Palmer  v.  Ward,  01  App. 
T)iv.  456,  86  X.  Y.  Supp.  990,  holding  innocent  administrator  not  liable  to  sure- 
ties for  default  of  coadministrator  where  sureties  assented  that  latter  should 
actively  manage  estate. 

Cited  in  note  (9  L.  R.  A.  227)  on  action  on  administrator's  bond. 

Distinguished  in  Xanz  v.  Oakley,  120  N.  Y.  88,  9  L.  R.  A.  226,  24  X.  E.  306, 
holding  joint  administrator  not  liable  to   other   sureties   for  torts   of  coadmin- 
istrator. 
Representative  capacity  to  sne  as  affected  by  individnal   liability. 

Cited  in  Starke  v.  Myers,  24  Misc.  578.  53  X.  Y.  Supp.  650.  sustaining  demurrer 
•to  counterclaim  against  executor  individually  in  action  for  estate ;  Lawyers' 
Surety  Co.  v.  Reinach,  25  Misc.  159,  54  N.  Y.  Supp.  205,  Affirming  23  Misc.  247, 
51  N.  Y.  Supp.  162,  holding  individual  defense  immaterial  in  action  by  assignee 
of  administratrix  to  recover  estate  moneys. 

Cited  in  footnote  to  Lauraglenn  Mills  v.  Ruff,  49  L.  R.  A.  448,  which  holds 
set-off  of  corporation   debt  not  allowable   in  action  on  stockholder's   individual 
liability. 
Trnstees   of  express   trnsts. 

Cited  in  Hanlon  v.  Metropolitan  L.  Ins.  Co.  9  Misc.  73,  29  X.  Y.  Supp.  65, 
"holding  beneficiary  not  trustee  of  express  trust  through  agreement  with  insured 
to  pay  funeral  expenses  and  employ  certain  undertaker. 

1  L.  R.  A.  491,  Re  MACKAY,  110  X.  Y.  611,  6  Am.  St.  Rep.  409,  18  X.  E.  433. 
Sufficiency   of   acknowledgment   of   testator's   signature. 

Cited  in  Re  Bernsee,   141   X.  Y.  392,  36  X.  E.  314,  sustaining  will  with  full 


121  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  491 

attestation  clause,  witnesses  disagreeing  as  to  seeing  testator's  signature;  Re 
Laudy,  148  N.  Y.  407,  42  X.  E.  1061,  ordering  trial  by  jury  on  disagreement  of 
witnesses  as  to  signing  of  will ;  Re  Laudy,  14  App.  Div.  164,  43  N.  Y.  Supp.  689, 
holding  acknowledgment  insufficient,  neither  witness  seeing  or  distinguishing  sig- 
nature: Vogel  v.  Lehritter,  64  Hun,  314,  18  N.  Y.  Supp.  923,  holding  will  signed 
before  foreign  notary,  sealed  in  envelope,  and  thereafter  acknowledged  before  two 
witnesses,  invalid;  Re  McDougall,  87  Hun,  350,  34  N.  Y.  Supp.  302,  holding  will 
invalid  where  one  witness  did  not  see  testator's  signature;  Re  Elmer,  88  Hun, 
292,  34  N.  Y.  Supp.  406,  holding  will  not  signed  or  signature  acknowledged  before 
subscribing  witnesses,  invalid;  Re  De  Haas,  9  App.  Div.  563,  41  N.  Y.  Supp.  696, 
reversing  probate  of  will  with  full  attestation  clause,  one  witness  being  dead, 
neither  survivor  remembering  seeing  testator's  signature  before  attestation;  Re 
Abercrombie,  24  App.  Div.  409,  48  X.  Y.  Supp.  414,  holding  acknowledgment  in- 
sufficient, testator's  signature  being  hidden  and  acknowledged  to  only  one  of  the 
witnesses;  Re  Purdy,  46  App.  Div.  35,  61  N.  Y.  Supp.  430,  Affirming  25  Misc. 
460,  55  N.  Y.  Supp.  644,  holding  will  invalid,  one  witness  not  seeing  testator's 
signature,  the  other  saying  testator  signed  after  attestation;  Re  Turell,  47  App. 
Div.  565,  62  N.  Y.  Supp.  1053,  Affirming  28  Misc.  107,  59  N.  Y.  Supp.  780,  holding 
seeing  testator's  signature  before  attestation  insufficient,  without  due  publication; 
Re  Sanderson.  9  Misc.  577,  30  X.  Y.  Supp.  848,  upholding  will  under  strong  cir- 
cumstantial evidence  of  due  execution  and  publication,  witnesses  forgetting 
whether  they  saw  signature;  Re  Losee,  13  Misc.  299,  34  X.  Y.  Supp.  1120,  holding 
person  unable  to  see  signature  to  will,  incompetent  attesting  witness;  Re  Eakins, 
13  Misc.  560,  35  X.  Y.  Supp.  489,  holding  exhibition  of  piece  of  blank  paper 
declared  to  be  will,  insufficient;  Re  Van  Houten,  15  Misc.  202,  37  X.  Y.  Supp.  39, 
holding  seeing  testator's  hand  upon  pen  and  hearing  scratching  thereof,  sufficient 
evidence  of  signature;  Re  Stockwell,  17  Misc.  110,  40  X.  Y.  Supp.  734,  holding 
exhibition  of  will  with  signature  and  request  to  sign  "my  will,"  sufficient  acknowl- 
edgment; Re  Kivlin.  37  Misc.  188,  74  X.  Y.  Supp.  937,  refusing  probate,  no  pro- 
vision of  statutes  concerning  execution  being  complied  with;  Re  Simmons,  30 
X.  Y.  S.  R.  448,  9  X.  Y.  Supp.  352,  holding  will  invalid,  testator  not  signing 
before  witnesses  nor  acknowledging  signature;  Tobin  v.  Haack,  79  Minn.  107, 
81  X.  YV.  758,  holding  unpublished  will,  witnesses  not  seeing  testator's  signature, 
void;  Hull  v.  Hull,  117  Iowa,  743,  89  X.  W.  979,  holding  burden  of  proof  as  to 
due  execution  and  attestation  of  will  on  proponents. 

Cited  in  footnote  to  Lane's  Appeal,  4  L.  R.  A.  45,  which  holds  that  statute  in 
force  at  testator's  death  cannot  cure  failure  to  comply  with  statute  in  effect  at 
time  of  execution  and  attestation. 

Cited  in  notes  (38  L.R.A. (X.S.)  166,  167)  on  necessity  that  witnesses  see  testa- 
tor sign,  or  that  they  see  his  signature;  (114  Am.  St.  Rep.  215)  on  attestation 
and  witnessing  of  wills. 

Distinguished  in  Re  Wilcox..  37  X.  Y.  S.  R.  467,  14  X.  Y.  Supp.  109,  upholding 
holographic  will  not  folded,  when  acknowledged,  so  as  to  obscure  signature;  Re 
Look,  1  Connoly,  411,  26  N.  Y.  S.  R.  747,  5  N.  Y.  Supp.  50,  upholding  will 
signed  in  presence  of  one  witness,  declared  to  be  last  will  before  both;  Re  Lang- 
try,  1  Silv.  Sup.  Ct.  525,  5  X.  Y.  Supp.  501,  holding  will  properly  executed  where 
the  attestation  clause  recites  the  acknowledgment  of  the  signature  by  testator, 
and  the  draftsman  testifies  thereto,  though  witnesses  do  not  distinctly  remember 
the  circumstances. 
—  Burden  of  proof. 

Cited  in  Steinkuehler  v.  Wempner,  169  Ind.  159,  15  L.R.A.  (X.S.)  677,  81  N. 
W.  4^2,  holding  that  burden  of  proving  execution  and  attestation  of  a  will  is 
upon  the  proponent. 


1  L.R.A.  493]  L.  R.  A.  CASES  AS  AUTHORITIES.  122 

1  L.  R,  A.  493,  ADAMS  v.  CHICAGO,  B.  &  N.  R.  CO.  39  Minn.  286,  12  Am.  St. 

Rep.  644,  39  N.  W.  629. 
Abutting-  owner's  interest   in  street. 

Cited  in  Kalteyer  v.  Sullivan,  18  Tex.  Civ.  App.  493,  46  S.  W.  288,  holding 
abutting  owner  has  property  right  in  public  alley;  Moose  v.  Carson,  104  N.  C.  435, 
7  L.  R.  A.  550,  17  Am.  St.  Rep.  681,  10  S.  E.  689,  holding  town  cannot  sell  land, 
thereby  reducing  street  to  alley,  without  compensation  to  abutting  owner;  Van- 
derburgh  v.  Minneapolis,  98  Minn.  336,  6  L.R.A.(N.S.)  744,  108  N.  W.  480,  holding 
he  has  right  of  ingress  and  egress;  Sandpoint  v.  Doyle,  14  Idaho,  757,  17  L.R.A. 
(N.S.)  500,  95  Pac.  945,  holding  he  has  right  of  ingress  and  egress  which  cannot 
be  taken  from  him  without  compensation;  Guilford  v.  Minneapolis  &  St.  L.  R.  Co. 
M  Minn.  109,  102  N.  W.  365,  holding  private  person  cannot  maintain  action  for 
interference  of  public  highway  unless  he  is  thereby  specially  injured;  Merchants' 
Mut.  Teleph.  Co.  v.  Hirschman,  43  Ind.  App.  290,  87  N.  E.  238,  holding  that  plac- 
ing of  telephone  pole  in  front  of  door  of  saloon  constitutes  particular  damage  to 
owner  entitling  him  to  damages;  Smith  v.  St.  Paul,  M.  &  M.  R.  Co.  39  Wash.  355, 
70  L.R.A.  1018,  109  Am.  St.  Rep.  898,  31  Pac.  840,  on  right  to  recover  for  obstruc- 
tion which  does  not  destroy  access. 

Cited  in  notes  (10  L.  R.  A.  276)  on  rights  of  abutting  landowners  in  streets: 
(1  L.  R.  A.  856;  2  L.  R.  A.  56)  dedication  of  land  to  street  purposes;  (22  L.  R. 
A.  543)  on  American  law  as  to  easements  of  light,  air,  and  prospect,  as  to  right 
to  light  and  air  from  public  highway;  (85  Am.  St.  Rep.  310)  on  obstruction  to 
ingress  or  egress  as  element  of  damages  allowable  in  eminent  domain  proceed- 
ings; (101  Am.  St.  Rep.  110)  on  rights,  obligations,  and  remedies  of  persons 
over  whose  land  a  highway  runs;  (106  Am.  St.  Rep.  238,  253)  on  what  are 
additional  servitudes  in  highways. 
Taking:  of  easement  in  street. 

Cited  in  White  v.  Northwestern  North  Carolina  R.  Co.  113  N.  C.  616,  22  L.  R. 
A.  627,  37  Am.  St.  Rep.  639,  18  S.  E.  330,  holding  steam  railroad  in  street 
additional  servitude  to  abutting  owner  with  fee;  Henry  Gaus  &  Sons  Mfg.  Co.  v. 
St.  Louis,  K.  &  N.  W.  R.  Co.  113  Mo.  315,  18  L.  R.  A.  341,  20  S.  W.  658,  holding 
construction  of  steam  railroad  in  street  dedicated  generally,  on  grade  and  under 
municipal  authority,  not  "taking"  from  abutter;  Gustafson  v.  Hamm,  56  Minn. 
338,  22  L.  R.  A.  567,  57  N.  W.  1054,  holding  private  railroad  in  street  addi- 
tional servitude,  and  invasion  of  abutting  owner's  rights  to  access,  light,  and 
air;  Gundlach  v.  Hamm,  62  Minn.  45,  64  N.  W.  50,  holding  individual  not 
peculiarly  damaged,  without  action  for  operation  of  railroad  across  street; 
Kray  v.  Muggli,  84  Minn.  99,  54  L.  R.  A.  480,  87  Am.  St.  Rep.  332,  86  N.  W. 
882,  holding  one  obtaining  prescriptive  right  to  dam  stream  estopped  from 
injuriously  restoring  to  natural  channel;  South  Bound  R.  Co.  v.  Burton.  07  S.  C. 
523,  46  S.  E.  343,  holding  property  owner  entitled  to  damages  for  depreciation  of 
his  lot  by  construction  of  railroad  in  street,  though  fee  of  streets  is  in  state. 

Cited  in  footnote  to  Theobald  v.  Louisville,  N.  O.  &  T.  R.  Co.  4  L.  R.  A.  735. 
which  holds  construction  of  steam  railroad  in  street  a  "taking"  from  abutting 
owner. 

Cited  in  notes  (4  L.  R.  A.  624)  on  use  of  public  streets  for  horse  railroads: 
(8  L.  R.  A.  173)  on  elevated  street  railways;  (14  L.  R.  A.  383)  on  injury  to 
abutter's  easements  by  railroad  in  street;  (6  L.  R.  A.  254)  on  improper  use  of 
street  by  railroad  company;  (2  L.  R.  A.  59;  5  L.  R.  A.  371)  on  right  to  use  of 
public  street  by  railroads;  (15  L.R.A.(N.S-)  51)  on  cutting  off  access  to  highwny 
as  a  taking. 

Distinguished  in  Willis  v.  Winona  City,  59  Minn.  34,  26  L.  R.  A.  144,  60  N.  W. 


123  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  497 

814;  Brand  v.  Multnomah  County,  38  Or.  100,  50  L.  R.  A.  396,  84  Am.  St.  Rep. 
772.  62  Fac.  210, —  both  holding  bridge  approach  not  additional  servitude  upon 
highway. 

Disapproved  in  Garrett  v.  Lake  Roland  Elev.  R.  Co.  79  Md.  281,  24-L.  R.  A. 
:!!>7.  2!)  Atl.  830,  holding  abutting  owner's  property  not  "taken"  by  construction 
of  elevated  railroad  abutments  in  street. 
D:>  MIH  s;e    for   railroad,    etc.,   in   street. 

Cited  in  Demueles  T.  St.  Paul  &  N.  P.  R.  Co.  44  Minn.  437,  46  N.  W.  912, 
holding  abutting  owner  entitled  to  damages  for  railroad  in  part  of  street  opposite 
his  premises  only;  Carroll  v.  Wisconsin  C.  R.  Co.  40  Minn.  169,  41  N.  W.  661, 
holding  railroad  company  not  liable  to  adjoining  landowner  for  smoke,  noise, 
and  jarring  from  operation;  Lamm  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  45  Minn. 
73,  10  L.  R.  A.  269.  47  X.  W.  455,  limiting  damages  in  trespass  by  operation 
of  railroad  in  street,  to  interference  with  access,  light,  and  air;  Cram  v.  Laconia, 
71  X.  H.  48,  57  L.  R.  A.  286,  51  Atl.  635,  holding  damage  by  discontinuance 
of  street  not  inclusive  of  diversion  of  traffic  and  diminishing  of  trade  which  can 
go  by  longer  route;  Donovan  v.  Allert,  UN.  D.  289,  58  L.  R.  A.  781,  95  Am. 
St.  Rep.  720.  91  N.  W.  441,  upholding  injunction  to  exclude  telephone  poles  from 
street  front  before  damages  paid;  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Lockwood, 
33  Fla.  594,  15  So.  327.  holding  entire  damage  for  permanent  injury  to  realty 
recoverable  by  owner  of  fee  in  one  action;  Bowers  v.  Mississippi  &  R.  River 
,  Boom  Co.  78  Minn.  403,  79  Am.  St.  Rep.  395,  81  N.  W.  208,  holding  riparian 
proprietor  has  successive  actions  for  damage  by  piling;  Foster  Lumber  Co.  v. 
Arkansas  Valley  &  W.  R.  Co.  20  Okla.  600,  30  L.R.A.  (X.S.)  240,  100  Pac.  1110, 
Affirming  on  Rehearing  20  Okla.  592,  30  L.R.A.  (N.S.)  237,  95  Pac.  224,  holding 
that  abutter  whose  means  of  access  is  cut  off  or  materially  interrupted  by  rail- 
road in  street  is  entitled  to  damages  therefor;  Tomlin  v.  Cedar  Rapids  &  I.  C.  R. 
&  Light  Co.  141  Iowa,  603,  22  L.R.A. (X.S.)  534,  120  N.  W.  93  (dissenting  opin- 
ion), on  right  of  railroad  to  construct,  without  compensation  to  abutters,  line  in 
street. whose  fee  has  been  conveyed  to  state. 

Cited  in  notes  (36  L.R.A.iX.S.)  697,  701,  736,  737,  780)  on  abutter's  right  to 
compensation  for  railroads  in  streets;  (34  L.  ed.  U.  S.  355)  on  liability  of  rail- 
roads occupying  streets  for  damages  to  abutters;  (35  Am.  St.  Rep.  536)  on  use  of 
streets  by  railroad  as  new  servitude  entitling  abutter  to  compensation;  (109  Am. 
St.  Rep.  915)  on  noise,  smoke  and  cinders  from  railroad  as  "damage"  within 
guaranty  against  taking  of  private  property  without  compensation. 
Easements  of  lijilit.  air,  and  prospect. 

Cited  in  notes  (22  L.R.A.  543)  on  American  law  as  to  easements  of  light,  air, 
and  prospect;  (2  Eng.  Rul.  Cas.  567;  41  Am.  St.  Rep.  324,  325,  326)  on  easements 
of  liffht  and  air  in  streets;  (109  Am.  St.  Rep.  913)  on  obstruction  of  light  and 
air  as  "damage"  to  property  within  provision  that  property  shall  not  be  taken 
or  damaged  for  public  use  without  compensation. 
Effect  of  legislative  authority  on  liability  for  nuisance. 

Cited  in  notes  (1  L.R.A.  (X.S.)  78,  82,  119)  on  effect  of  legislative  authority 
upon  liability  for  private  nuisance;  (22  Eng.  Rul.  Cas.  113)  on  legislative  au- 
thority as  justification  for  nuisance. 

1  L.  R.  A.  407,  1IVMAX  v.  STATE,  87  Tenn.  109,  9  S.  W.  372. 
Title  of  act. 

Approved  in  Memphis  Street  R.  Co.  v.  Byrne,  119  Tenn.  289,  104  S.  W.  460, 
holding  title  to  act  "amending  act  creating  court  of  chancery  appeals"  sufficient, 
tli<  ii-ii  it  increased  the  size  and  jurisdiction  of  the  court  and  gave  it  a  new  name. 


1  L.K.A.  497]  L.  R.  A.  CASES  AS  AUTHORITIES.  124 

Cited  in  McElwee  v.  McEhvee,  97  Term.  652..  37  S.  W.  560,  holding  act  extend- 
ing statute  of  limitations  to  liens  on  realty  in  order  to  quiet  titles,  includes  all 
liens  on  realty;  Gibson  County  v.  Pullman  Southern  Car  Co.  42  Fed.  574,  holding- 
mode  and  manner  of  valuing  telegraph  for  taxation  and  of  taxing  sleeping  cars, 
one  subject;  State  v.  Bradt,  103  Tenn.  592,  53  S.  W.  942,  holding  that  filing  and 
recording  labels,  trade-marks,  etc.,  does  not  include  adopting,  using,  and  protecting 
them,  or  unauthorized  use  of  another's  seal  or  name;  State  ex  rel.  Astor  v. 
Schlitz  Brewing  Co.  104  Tenn.  728,  78  Am.  St.  Rep.  941,  59  S.  W.  1033,  holding 
prohibition  of  transactions  lessening  competition  or  influencing  prices,  covers  ex- 
clusionary clause;  Carroll  v.  Alsup,  107  Tenn.  267,  64  S.  W.  193.  holding  assess- 
ment and  collection  of  revenue,  includes  exemptions;  Saunders  v.  Savage,  108 
Tenn.  345,  67  S.  W.  471,  holding  severance  and  transference  of  cause,  not  to- 
cover  removal  by  sole  defendant;  Schmalz  v.  Wooley,  56  N.  J.  Eq.  657,  39  Atl. 
539,  limiting  amending  act  with  broader  title  to  object  of  act  amended;  Equitable 
Guarantee  &  T.  Co.  v.  Donahoe,  3  Pcnn.  (Del.)  195,  49  Atl.  372,  holding  pro- 
vision for  municipal  taxation  void  under  title  of  taxation  for  state  and  county 
purposes;  State  ex  rel.  Wolfe  v.  Bronson,  115  Mo.  282,  21  S.  W.  1125  (dissenting 
opinion) ,  majority  holding  act  by  title  applicable  to  "all  public  schools  within 
this  state"  may  exclude  certain  portions;  Memphis  Street  R.  Co.  v.  State,  110" 
Tenn.  608,  75  S.  W.  730;  Goodbar  v.  Memphis,  113  Tenn.  35,  81  S.  W.  1061; 
Memphis  v.  Hastings,  113  Tenn.  166,  69  L.R.A.  757,  86  S.  W.  609;  Wright  v.. 
Cunningham,  115  Tenn.  454,  91  S.  W.  293;  Galloway  v.  Memphis,  116  Tenn.  747r 
94  S.  W.  75, — holding  that  title  to  amendatory  statute  need  not  set  out  the 
character  of  the  amendment  provided  it  is  germane  to  the  title  of  the  original 
act  and  the  latter  title  is  recited. 

Cited  in  notes  (12  Am.  St.  Rep.  696)  on  title  of  amendatory  statute;  (64  Am. 
St.  Rep.  79,  100)  on  sufficiency  of  title  of  statute;  (79  Am.  St.  Rep.  481)  as  to 
when  title  of  statute  embraces  only  one  subject,  and  what  may  be  included' 
thereunder. 

Distinguished  in  Malone  v.  Williams,  118  Tenn.  447,  121  Am.  St.  Rep.  1002. 
303  S.  W.  798,  holding  that  repeal  by  the  enactment  of  a  new  law  is  not  constitu- 
tional under  a  title  purporting  to  amend. 
—  Statutes  definitive  of  crime. 

Cited  in  State  v.  Hayes,  ]16  Tenn.  45,  93  S.  W.  98,  holding  that  where  title 
limits  it  to  "gambling  on  races"  no  other  gambling  can  be  included  in  the  body 
of  the  act;  Com.  v.  Hehort,  13  Pa.  Dist.  R.  680,  35  Pittsb.  L.  J.  N.  S.  184,  30  Pa. 
Co.  Ct.  168,  holding  that  where  title  of  act  recites  that  it  is  an  "act  to  provide 
against  adulteration  of  food"  the  body  thereof  cannot  include  liquors,  nor  the 
sale  of  foods. 

1  L.  R.  A.  498,  McCONVILLE  v.  GILMOUR,  36  Fed.  277. 

Federal  jurisdiction   of  suit  by  or  against  agent   or   receiver  of   national 
bank. 

Cited  in  Guarantee  Co.  of  N.  A.  v.  Hanway,  44  C.  C.  A.  316,  104  Fed.  372, 
upholding  Federal  jurisdiction  of  suit  to  control  official  conduct  of  agent  of 
national  bank  stockholders;  Chetwood  v.  California  Nat.  Bank,  113'Cal.  654,  45 
Pac.  854,  holding  appointment  of  agent  of  national  bank  stockholders  who  pre- 
sents commission,  not  subject  to  collateral  attack  in  state  court  action  for  di- 
rectors' misconduct;  Grant  v.  Spokane  Nat.  Bank,  47  Fed.  673,  and  Thompson  v. 
Pool,  70  Fed.  727,  both  upholding  Federal  jurisdiction  of  national  bank  receiver 
appointed  by  comptroller;  Murray  v.  Chambers,  151  Fed.  143,  holding  that  Fed- 
eral courts  have  jurisdiction  over  action  by  receiver  of  national  bank  to  recover 
assets  regardless  of  amount  involved  or  citizenship  of  the  parties. 


125  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  500 

1  L.  R.  A.  500,  MISSOURI  P.  R.  CO.  v.  IVEY,  71  Tex.  409,  10  Am.  St.  Rep.  758, 

9  S.  W.  346. 
Care-takers,   drovers,  or  the  like,  as  passengers. 

Cited  in  Brewer  v.  New  York,  L.  E.  &  W.  R.  Co.  124  N.  Y.  64,  11  L.  R.  A. 
485,  footnote  p.  483,  21  Am.  St.  Rep.  647,  26  N.  E.  324,  holding  carrier  liable 
for  negligence  to  express  messenger  although  express  company  assumed  risk; 
Memphis  &  C.  Packet  Co.  v.  Buckner,  108  Ky.  706,  57  S.  W.  482,  holding  shipper 
of  stock,  carried  on  steamboat  on  condition  that  he  is  to  care  for  his  stock,  a 
passenger;  International  &  G.  N.  R.  Co.  v.  Armstrong,  4  Tex.  Civ.  App.  150, 
23  S.  W.  236,  holding  railroad  corporation  liable  for  negligent  injury,  while  en- 
gaged in  caring  for  stock,  by  one  riding  on  driver's  pass;  Texas  &  P.  R.  Co.  v. 
Fenwick,  34  Tex.  Civ.  App.  227,  78  S.  W.  548,  holding  that  "newsboy"  on  train 
is  a  "passenger." 

Cited  in  notes  (22  L.  R.  A.  794)  on  rights  of  person  riding  on  pass  or  contract 
for  free  passage;    (11  L.  R.  A.  486)   on  postal  agents  as  passengers;    (6  L.  R.  A. 
<546)  on  volunteer  cannot  recover  for  injuries,  except  where  caused  by  wantonness 
or  malice. 
Employees   or  passengers. 

Cited  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Fronk,  74  Kan.  522,  87  Pac.  698,  11  A.  & 
E.  Ann.  Cas.  174,  holding  that  a  student  brakeman  is  an  employee  of  the  railroad 
notwithstanding  any  statement  which  may  appear  in  his  contract  with  the 
company. 

Cited  in  note  (61  Am.  St.  Rep.  89)  on  who  are  passengers  and  when  they  be- 
come such. 
Limiting-    carrier's    liability    to    passengers. 

Cited  in  Ft.  Worth  &  D.  C.  R.  Co.  v.  Rogers,  21  Tex.  Civ.  App.  608,  53  S.  W.  366, 
holding  that  Texas  railway  cannot  limit  liability  as  carrier;  Doyle  v.  Fitchburg 
R.  Co.  166  Mass.  497,  33  L.  R.  A.  847,  55  Am.  St.  Rep.  417,  44  N.  E.  611,  holding 
release  by  passenger  for  hire  of  carrier's  liability  for  negligence,  invalid;  Central 
R.  Co.  v.  Lippman,  110  Ga.  678,  50  L.  R.  A.  679,  36  S.  E.  202,  holding  passenger's 
release  of  liability  for  negligence  while  traveling  on  way  freights,  invalid;  Sager 
V.  Northern  P.  R.  Co.  166  Fed.  534,  holding  contract  with  circus  proprietor  for 
transportation  to  be  no  defense  to  action  by  circus  employee  for  injury  through 
carrier's  negligence. 

Cited  in  footnote  to  Chicago  &  N.  W.  R.  Co.  v.  Chapman,  8  L.  R.  A.  508,  which 
holds  carrier  cannot  exempt  itself  from  liability  for  gross  negligence  or  wilful 
misconduct. 

Cited  in  notes  (7  L.  R.  A.  215;  10  L.  R.  A.  420)  on  limitation  of  carrier's 
liability  by  contract;  (12  L.R.A.  340)  on  stipulation  in  contract  of  carriage; 
(13  Am.  St.  Rep.  784,  786)  on  extortion  of  unauthorized  stipulations  from  shippers 
and  their  effect;  (16  Am.  St.  Rep.  319;  20  Am.  St.  Rep.  643)  on  limitation  of 
carrier's  liability;  (88  Am.  St.  Rep.  97,  102)  on  limitation  of  carrier's  liability  in 
bills  of  lading. 

Distinguished  in  Russell  v.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  157  Ind.  313,  55 
L.  R.  A.  256,  87  Am.  St.  Rep.  214,  61  N.  E.  678,  holding  sleeping-car  porter's  con- 
tract to  waive  any  right  of  action  for  carrier's  negligence,  valid. 
Dnty  of  carrier. 

Cited  in  Cruseturner  v.  International  &  G.  N.  R.  Co.  38  Tex.  Civ.  App.  473,  86 
S.  W.  778,  holding  it  to  be  question  for  jury  to  decide  whether  carrier  in  failing 
to  give  warning  of  danger,  exercised  the  degree  of  care  and  prudence  required  by 
law;  International  &  G.  N.  R.  Co.  v.  Cruseturner,  44  Tex.  Civ.  App.  186,  98  S.  W. 
423,  holding  carrier  not  relieved  from  duty  of  exercising  the  degree  of  care  im- 


1  L.R.A.  500]  L.  R.  A.  CASE?  AS  AUTHORITIES.  126 

posed  upon  it  by  law,  by  a  showing  that  it  acted  as  was  customary  upon  similar 

occasions. 

Res  grestte. 

Cited  in  Wilkins  v.  Ferrell,  10  Tex.  Civ.  App.  236,  30  S.  W.  450.  holding  by- 
stander's contemporaneous  statements  not  res  gestce;  National  Masonic  Acci.  Asso. 
v.  Shryock,  20  C.  C.  A.  8,  36  U.  S.  App.  658,  73  Fed.  778,  holding  declaration  in 
other  disconnected  transaction,  three  hours  after  accident,  not  res  gestce ;  Fidelity 
&  C.  Co.  v.  Haines,  49  C.  C.  A.  382,  111  Fed.  340,  holding  agent's  statement  not 
competent  evidence  of  insurance  on  previous  day;  Texas  &  X.  0.  R.  Co.  v.  Mar- 
shall, 57  Tex.  Civ.  App.  542,  122  S.  W.  946,  holding  inadmissible,  statement  of 
fellow  passenger  to  plaintiff  that  it  was  a  shame  for  a  man  to  have  to  take  the 
insulting  language  of  conductor. 

Cited  in  notes  (19  L.R.A.  750)  on  how  near  the  main  transaction  must  decla- 
rations be  made  in  order  to  constitute  part  of  the  res  gestce;  (20  L.R.A.fN.S.) 
145)  on  nonparticipation  in  accident  or  affray  as  rendering  one's  statements  or 
exclamations  inadmissible  as  res  gestce;  (20  Am.  St.  Rep.  518)  on  admissibility 
of  opinions  expressed  after  accidents;  (11  Eng.  Rul.  Cas.  292)  on  admissibility  of 
declarations  as  part  of  the  res  gestce. 
Admissibility  of  irresponsive  answer  in  ileposition. 

Cited  in  Parker  v.  Chancellor,  78  Tex.  527,  15  S.  W.  157,  and  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Shearer,  1  Tex.  Civ.  App.  348,  21  S.  W.  133,  holding  nonresponsive 
answer  in  deposition  admissible  against  objection  on  trial;  Ivaack  v.  Stanton.  51 
Tex.  Civ.  App.  501,  112  S.  W.  702,  holding  that  objection  that  answers  in  deposi- 
tion are  not  responsive  is  not  available  when  made  for  first  time  or.  trial. 

Distinguished  in  Missouri  P.  R.  Co.  v.  Smith,  84  Tex.  349,  19  S.  W.  509.  holding 
answer  admissible  over  objection  for  generality  of  question;  filing  date  of  deposi- 
tion not  shown. 
Motion  to  quash  deposition. 

Cited  in  St.  Louis  Southwestern  R.  Co.  v.  Harkey,  39  Tex.  Civ.  App.  527,  88  S. 
W.  506,  holding  that  motion  to  quash  a  deposition  comes  too  late  when  made  After 
the  parties  have  announced  ready  for  trial. 

1  L.  R.  A.  503,  QUIGLEY  v.  PENNSYLVANIA  S.  VALLEY  R.  CO.  121  Pa.  35, 

15  Atl.  478. 
Obligation    to    compensate    adjoining    owners. 

Cited  in  Beidler's  Appeal,  1  Monaghan  (Pa.)  340,  23  W.  N.  C.  453,  17  Atl.  244, 
holding  obligation  to  exist  in  spite  of  bond  to  indemnify  city  against  damage  to 
abutting  owners. 
Right   to   occupy   highway. 

Cited  in  footnote  to  Chicago  G.  W.  R.  Co.  v.  First  M.  E.  Church,  50  L.  R.  A. 
488,  which  holds  right  to  maintain  private  nuisance  injurious  to  abutting  owners 
cannot  be  granted  by  legislature  or  municipal  council. 

Cited  in  note  (36  L.R.A.(N.S.)  675,  761)  on  abutter's  right  to  compensation  for 
railroads  in  streets. 

1  L.  R.  A.  505,  BAIZLEY  v.  THE  ODORILLA,  121  Pa.  231,  15  Atl.  521. 
Jurisdiction    of   state    court. 

Cited  in  The  Victorian,  24  Or.  133,  41  Am.  St.  Rep.  838,  32  Pac.  1040,  holding 
contract  to  furnish  material  in  construction  of  vessel,  though  afloat,  non-maritime, 
i.icn  on  -vessel. 

Cited  in  footnote  to  Clyde  v.  Steam  Transp.  Co.  1  L.  R.  A.  794,  which  holds  lien 
maritime  and  entitled  to  precedence,  though  created  by  state  statute. 


127  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  512 

I  L.  R.  A.  507,  SOUTH  BALTIMORE  CO.  v.  MUHLBACH,  69  Md.  395,  16  Atl. 

117. 
Krai  h   or   insanity  an  affecting:  competency  as  witness. 

Approved  in  Flach  v.  Gottschalk  Co.  88  Md.  377,  42  L.  R.  A.  748,  71  Am.  St. 
Rep.  418.  41  Atl.  908,  holding  testimony  by  agent  of  corporation  who  made  con- 
tract, admissible  in  spite  of  other  party's  subsequent  insanity. 

Cited  in  note   (27  L.R.A.  (X.S.)   818)   on  competency  of  stockholder  as  witness 
where  corporation  is  party  to  suit  prosecuted  by  or  against  a  personal  repre- 
sentative. 
Statute  of  frauds. 

Cited  in  Bruns  v.  Spalding,  90  Md.  361,  40  Atl.  194,  holding  executed  agree- 
ment to  improve,  sell,  and  divide  the  profits  derived  from  land,  not  within  statute. 
Review  of  prayer  for  charge  not  based  on  the  pleading's. 

Cited  in  Home  Friendly  Soc.  v.  Roberson,  100  Md.  88,  59  Atl.  279;  Richardson 
v.  Anderson,  109  Md.  651*  25  L.R.A. (N.S.)  400,  130  Am.  St.  Rep.  543,  72  Atl.  485; 
Monumental  Brewing  Co.  v.  Larrimore,  109  Md.  687.  72  Atl.  596,— holding  that 
where  prayer  does  not  refer  to  the  pleadings,  the  question  raised  is  whether  the- 
evidence  shows  a  good  cause  of  action. 

1  L.  R.  A.  510,  MILLIKEX  v.  HATHAWAY,  148  Mass.  69,  19  X.  E.  16. 
Void  conveyance  l>y  insolvent. 

Cited  in  footnotes  to  Van  Raalte  v.  Harrington,  11  L.  R.  A.  424,  which  holds^ 
creditors  attacking  conveyance  have  burden  of  proving  vendee's  participation  ii> 
fraud:  Manning  v.  Beck,  14  L.  R.  A.  198,  which  holds  valid,  bill  of  sale  to  creditor 
ignorant  of  vendor's  intent  to  make  general  assignment. 

Cited  in  notes  (37  L.  R.  A.  475)  on  effect  of  insolvency  statutes  upon  mortgage- 
or  sale  preferring  creditors;   (3  L.  R.  A.  823)  on  when  sale  or  assignment  vitiated, 
for  fraud;    (12  L.R.A.  810)   on  validity  of  judgment  by  confession;    (34  Am.  St~ 
Rep.  857)   on  validity  of  preferences  in  assignments  for  creditors. 
Auctioneers'    liability   for   conversion. 

Cited  in  notes  (50  L.R.A.  655)  on  liability  of  auctioneers  for  conversion,  tres- 
pass, or  other  positive  act  of  wrongdoing  against  third  parties  under  orders  of 
employers;  (24  Am.  St.  Rep.  801)  on  conversion  of  personalty  by  auctioneer 
suflicient  to  sustain  trover. 

1  L.  R.  A.  512,  WIXX  v.  SAXFORD,  148  Mass.  39,  18  N.  E.  677. 
Separation    agreement. 

Cited  in  Bailey  v.  Dillon,  186  Mass.  246,  66  L.R.A.  428,  71  X.  E.  538,  holding 
valid  agreement  between  wife  and  husband's  trustee  under  which  husband  places 
funds  for  her  support  in  hands  of  trustee  and  she  agrees  to  make  no  further 
claims  on  him  for  support. 

Cited  in  footnotes  to  Foote  v.  Xickerson.  54  L.  R.  A.  554.  which  holds  agreement 
void:  IJaum  v.  Baum,  53  L.  R.  A.  650,  which  holds  void,  agreement,  before  sepa- 
ration, to  supply  means  and  assign  insurance;  Coleman  v.  Whitney,  9  L.  R.  A.. 
517.  which  holds  that  wife  may  enforce  valid  agreement  between  her  husband  and 
third  party  for  her  benefit,  entered  into  at  time  of  separation;  Henderson  v. 
Henderson.  48  L.  R.  A.  766,  which  holds  agreement  to  support  wife  valid  when, 
made  after  separation;  Palmer  v.  Palmer.  61  L.  R.  A.  641,  which  holds  contract 
between  husband  and  wife  to  secure  divorce  a  rinculo  matrimonii,  void. 

Cited  in  notes  (6  L.R.A.  488)  on  effect  of  divorce  on  articles  of  separation;. 
(83  Am.  St.  Rep.  863,  873)  on  validity  and  effect  of  separation  agreements. 


1   L.R.A.  513]  L.  R.  A.  CASKS   _\>   AUTHORITIES.  128 

I  L.  R.  A.  513,  SULLIVAN  v.  OLD  COLONY  R.  CO.  148  Mass.  119,  18  N.  E.  678. 
Rights    and    duty   »s    to   removal    of    pattsensrer. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co  v.  Long,  13  Tex.  Civ.  App.  665,  36  S. 
\Y.  4S5,  holding  carrier  not  liable  for  not  at  once  removing  intoxicated  but  not 
disorderly  passenger;  Cobb  v.  Boston  Elev.  R.  Co.  179  Mass.  214,  60  N.  E.  476, 
holding  it  the  duty  of  conductor  to  immediately  remove  drunken  pasenger. 

Cited  in  footnotes  to  Fisher  v.  West  Virginia  &  P.  R.  Co.  23  L.  R.  A.  758, 
which  holds  it  duty  of  conductor  after  notice  to  use  ordinary  precaution  for 
safety  of  intoxicated  passenger  riding  on  platform;  Paddock  v.  Atchison,  T.  & 
S.  F.  R.  Co.  4  L.  R.  A.  231,  which  holds  passenger  rightly  removed  whose  skin 
had  broken  out  in  apparent  smallpox  eruptions. 

Cited  in  notes  (5  L.  R.  A.  820)  on  right  to  expel  passenger  from  train;  (40 
L.  R.  A.  136)  on  intoxication  of  passenger  as  affecting  negligence;  (3  L.  R.  A. 
733)  on  undertaking  of  carrier  to  protect  passenger  from  violence  and  abuse  of 
its  servants;  (14  L.  R.  A.  796)  on  liability  of  master  for  false  arrest,  imprison- 
ment, or  malicious  prosecution  by  servant;  (20  L.R.A.  (N.S.)  969)  as  to  whether 
false  imprisonment  may  be  predicated  of  partial  or  conditional  restraint. 
Liability  of  employer  for  acts  of  special  policeman. 

Cited  in  note  (23  L.R.A.(N.S.)  290)  on  liability  of  employer  for  acts  of  special 
police  officer  appointed  by  public  authority. 

1  L.  R.  A.  514,  QUIMBY  v.  DURGIN,  148  Mass.  104,  19  N.  E.  14. 
Extent  of  lien. 

Cited  in  Cary  Hardware  Co.  v.  McCarty,  10  Colo.  App.  218,  50  Pac.  744,  hold- 
ing detached  buildings  in  same  plant  subject  for  lien  for  work  upon  one,  where 
all  were  included  in  description;  Whalen  v.  Collins,  164  Mass.  148,  41  N.  E.  124, 
holding  lien  not  enforceable  against  part  only  of  lot;  Collins  v.  Patch,  156  Mass. 
318,  31  N.  E.  295,  holding  lien  on  the  whole  lot  not  affected  by  subsequent  con- 
veyance of  portion. 

Cited  in  notes   (17  L.R.A.  315)   on  right  to  file  single  mechanics'  lien  against 
several  buildings;    (26  L.R.A. (N.S.)   837)   on  extent  of  land  to  which  mechanics' 
lien  will  attach;   (65  Am.  St.  Rep.  167)  on  including  property  in  mechanic's  lien 
in  addition  to  that  on  which  work  was  performed  or  materials  furnished. 
Payment    by    note. 

Cited  in  Bradway  v.  Groenendyke,  153  Ind.  511,  55  N.  E.  434,  holding  execu- 
tion of  note  prima  facie  evidence  of  payment  only  in  cases  governed  by  law 
merchant;  McLean  v.  Wiley,  176  Mass.  235,  57  N.  E.  347,  and  Davis  v.  Parsons, 
157  Mass.  587,  32  N.  E.  1117,  holding  evidence  sufficient  to  support  finding  that 
payment  not  intended. 

Cited  in  notes  (2  L.R.A.(N.S.)  263)  on  obligation  as  equivalent  of  payment,  for 
purpose  of  subrogation;  (35  L.R.A.(N.S.)  52)  on  payment  by  commercial  paper. 

1  L.  R.  A.  516,  MANNING  v.  SPRAGUE,  148  Mass.   18,  12  Am.  St.  Rep.  508, 

18  N.  E.  673. 
Champerty. 

Cited  in  Joy  v.  Metcalf,  161  Adams.  515.  37  N.  E.  671.  holding  nonchampertous, 
contract  providing  for  purchase  of  share  in  deceased's  estate,  for  amount  con- 
tingent on  saving  made  by  purchase:  Manning  v.  Perkins,  85  Me.  174,  26  Atl. 
1015,  holding  nonchampertous.  contract  for  contingent  fee  in  prosecution  of  claim 
against  fund  received  by  United  States  under  treaty. 

Cited  in  footnotes  to  Reece  v.  Kyle,  16  L.  R.  A.  723,  which  holds  noncham- 
pertous, an  agreement  between  attorney  and  client  for  division  of  judgment, 


129  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  522 

expense  of  enforcing  which  originally  borne  by  attorney;  Johnson  v.  Van  Wyck, 
41  L.  R.  A.  520.  which  holds  champertous  agreement  by  attorney  to  bear  entire 
expense  of  prosecuting  suit  in  consideration  of  half  of  recovery;  Newman  v. 
Froitas.  50  L.  R.  A.  548,  which  holds  champertous  agreement  by  wife  in  divorce 
proceedings  to  pay  attorney  one  third  of  recovery;  Croco  v.  Oregon  Short-Line 
R.  Co.  44  L.  R.  A.  285,  which  holds  agreement  by  attorney  for  contingent  fee 
and  payment  by  him  of  court  expenses,  champertous;  Irwin  v.  Currie,  58  L.  R. 
A.  830,  which  holds  attorney  undertaking  collection  of  demands  on  contingent 
fee  in  violation  of  statute  cannot  retain  the  recovery  without  accounting;  Dorr 
v.  Camden,  65  L.R.A.  348,  which  holds  that  contract  for  contingent  fee  must,  in 
order  to  be  sustained,  be  shown  to  have  been  entered  into  by  the  client  after  full 
knowledge  of  the  facts  and  circumstances  justifying  such  contract. 

Cited  in  notes  (4  L.R.A.  113)  on  champerty  and  maintenance;  (13  Am.  St.  Rep. 
290,  300)  on  contracts  of  attorneys  void  as  against  public  policy;  (28  Am.  St.  Rep. 
757)  on  champerty;  (6  Eng.  Rul.  Cas.  391)  on  invalidity  of  champertous  agree- 
ment or  one  for  compounding  a  felony. 

1  L.  R.  A.  518,  DESHOX  v.  WOOD,  148  Mass.  132,  19  N.  E.  1. 
Antenuptial  agreements. 

Cited  in  Wind  v.  Haas,  8  Pa.  Co.  Ct.  648,  holding  antenuptial  agreements 
without  intervention  of  trustee  valid  in  equity;  Ballard  v.  Brown,  74  Vt.  123, 
52  Atl.  422,  raising,  but  not  deciding,  question  whether  conveyance  to  wife 
under  verbal  antenuptial  contract,  assailable  by  creditor  or  grantor. 

Cited  in  footnote  to  Hunt  v.  Hunt,  59  L.  R.  A.  306,  which  holds  verbal  con- 
tract to  convey  property  in  consideration  of  marriage  not  taken  out  of  statute 
by  marriage. 

Cited  in  notes   (13  L.  R.  A.  712)   on  antenuptial  settlement;    (2  L.  R.  A.  373) 
on  antenuptial  contract  being  within  statute  of  frauds;    (11  L.R.A. (N.S.)    594) 
on  postnuptial  written  contract  to  confirm  antenuptial  oral  contract  relinquish- 
ing rights. 
Fraudulent   transactions   between   husband   and   wife. 

Cited  in  note  (12  L.  R.  A.  600)  on  fraudulent  transactions  between  husband 
and  wife. 

Distinguished  in  Clark  v.  McMahon,  170  Mass.  92,  48  N.  E.  939,  holding  con- 
veyance corformable  to  antenuptial  agreement,  in  absence  of  fraud,  valid  as  to 
husband's  creditors;  Huntress  v.  Hanley,  195  Mass.  240,  80  N.  E.  946.  holding 
valid  assignment  of  property  by  a  man  to  a  woman  two  weeks  before  their  mar- 
riage upon  consideration  of  her  promise  to  marry  him  immediately. 

1  L.  R.  A.  522,  GALBRAITH  v.  LUNSFORD,  87  Tenn.  89,  9  S.  W.  365. 
Equi  table  estoppel. 

Cited  in  Bristol-Goodson  Electric  Light  &  P.  Co.  v.  Bristol  Gas,  Electric 
Light  &  P.  Co.  99  Tenn.  383,  42  S.  W.  19,  holding  lienor  suggesting  issue 
and  assisting  in  sale  of  so-called  first-mortgage  bonds  estopped  to  assert  lien  as 
against  innocent  purchasers;  Engholm  v.  Ekrem,  18  X.  D.  195,  119  X.  W.  35. 
holding  husband  and  wife  estopped  to  question  validity  of  verbal  contract  of  sale 
of  homestead,  where  purchaser  has  paid  part  of  price  and  made  permanent 
improvements. 

Cited  in  notes  (13  L.  R.  A.  270)  on  definition  of  equitable  estoppel;  (7  L.  R. 
A.  756)  on  actual  fraud  not  an  essential  element  of  estoppel;  (30  L.R.A. (X.S.)  3) 
on  estoppel  of  landowner  permitting  title  to  remain  in  another  to  assert  it  as 
against  latter's  creditors;  (11  Am.  St.  Rep.  592)  on  agreement  or  estoppel  as  to 
boundary;  (15  Eng.  Rul.  Cas.  417)  on  effect  of  part  performance  of  lease. 
L.R.A.  Au.  Vol.  L— 9. 


1   L.R.A.  522]  L.  R.  A.  CASES  AS  AUTHORITIES.  130 

Distinguished  in  Bedford  v.  McDonald,  102  Tenn.  367,  52  S.  W.   157,  holding 
appearance  for  defendant  in  action  on  nete,  ownership  of  which  was  not  litigated, 
not  to  estop  firm  creditor  from  claiming  judgment  as  firm  asset. 
Estoppel  of  married  women. 

Cited  in  Harris  v.  Smith,  98  Tenn.  297,  39  S.  W.  343,  holding  married  woman 
estopped  to  assert  title  to  land  duly  deeded  by  her;  Johnson  City  v.  Wolfe,  103 
Tenn.  282,  52  S.  W.  991,  holding  married  woman  estopped  by  conduct  to  deny 
dedication  of  property  to  public  use;  Bruce  v.  Goodbar,  104  Tenn.  645,  58  S.  W. 
282,  holding  married  woman  estopped  by  deed  to  claim  contingent  interest 
thereafter  passing  to  her;  Sears  v.  Davis  40  Or.  238,  66  Pac.  913,  holding  wife 
permitting  husband  to  retain  apparent  title  for  years  estopped  to  assert  claim 
as  against  creditors;  Hunt  v.  Reilly,  23  R.  I.  473,  50  Atl.  833,  holding  wife 
not  estopped  from  asserting  dower,  where  pretended  release  had  been  forged 
thirty-five  years  before,  without  her  knowledge;  Crawford  v.  Woodward,  1  Tenn. 
Ch.  App.  311,  holding  that  married  woman  may  by  acts  in  pais  estop  herself 
from  asserting  title  to  real  property  against  third  persons  misled  to  their  preju- 
dice; Grice  v.  Woodworth,  10  Idaho,  466,  69  L.R.A.  588,  109  Am.  St.  Rep.  214, 
80  Pac.  912,  holding  that  oral  agreement  for  sale  of  homestead,  where  possession 
is  given  and  valuable  improvements  made,  will  be  enforced  against  married 
woman;  Campbell  v.  Bartlett,  122  Tenn.  213,  25  L.R.A. (N.S.)  642,  122  S.  W.  250, 
on  estoppel  against  married  woman  arising  out  of  conduct  deceiving  and  mislead- 
ing person  relying  thereon. 

Cited  in  footnotes  to  Hunt  v.  Reilly,  59  L.  R.  A.  206,  which  holds  woman  not 
estopped  to  claim  dower  by  failure,  after  learning  of  forgery  of  her  name  to 
deed,  to  notify  one  purchasing  without  her  knowledge;  National  Granite  Bank 
v.  Tyndale,  51  L.  R.  A.  447,  which  holds  married  woman  not  estopped  to  deny 
validity  of  note  legally  void  because  payable  to  husband;  Hart  v.  Burch,  6  L.  R. 
A.  371,  which  holds  release  by  widow  of  dower  right,  before  assignment,  to 
husband's  cotenant,  ineffectual. 

Cited  in  notes  (2  L.  R.  A.  769;  4  L.  R.  A.  783)  on  doctrine  of  estoppel 
applied  to  married  women;  (57  Am.  St.  Rep.  179)  on  estoppel  of  married  women. 

Distinguished   in   Franklin   Sav.   Bank   v.   Miller,    17   R.   I.   273,   21    Atl.   542, 
holding   married   women   not    estopped   to    deny   validity   of    first    mortgage    by 
recital  in  second  mortgage  that  it  is  subject  to  prior  mortgage. 
Rights  by  prescription. 

Cited  in  note    ( 1   L.  R.  A.  489 )    on  prescriptive  right. 
Statute    of    frauds,    boundary   agreements. 

Cited  in  Hoar  v.  He,nnessy,  29  Mont.  257,  74  Pac.  452,  holding  that  where 
boundary  is  disputed  adjoining  owners  may  fix  the  line  by  oral  agreement  which 
will  be  valid;  Taylor  v.  Reising,  13  Idaho,  240,  89  Pac.  943,  on  same  point. 

Cited  in  note  (10  L.R.A.(X.S.)  612)  on  effect  of  compromise  locating  division 
line  at  place  known  not  to  be  true  boundary. 

1  L.  R.  A.  528,  AVELING  v.  NORTHWESTERN  MASONIC  AID  ASSO.  72  Mich. 

7,  40  N.  W.  28. 
Action  on  insurance  certificate. 

Cited  in  Peet  v.  Great  Camp  K.  of  M.  83  Mich.  95,  47  N.  W.  119,  holding 
administrator  who  is  also  sole  heir  and  beneficiary  entitled  to  maintain  action 
on  insurance  certificate. 

1  L.  R.  A.  529,  CHESEBROUGH  v.  PINGREE,  72  Mich.  438,  40  N.  W.  747. 
Lease;  statute  of  frauds. 

Cited  in  Oliver  v.  Olmstead,  112  Mich.  485,  70  N.  W.  1036,  holding  surviving 


131  L.  E.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  535 

partner  cannot  execute  lease  for  term  of  years,  not  necessary  to  close  partner- 
ship business,  without  written  authority  from  heirs  of  deceased  partner. 

'Cited  in  notes    (7  L.  R.  A.  671)    on  lease;   statute  of  frauds;    (26  L.  R.  A. 
800)    on  compensation  for  use  of  premises  where  lease  invalid  under  statute  of 
frauds. 
Effect   of  dilapidation   or  destruction   of  leased  bnildingr. 

Cited  in  Nashville,  C.  &  St.  L.  R.  Co.  v.  Heikens,  112  Tenn.  386,  65  L.R.A.  299, 
79  S.  W.  1038,  holding  the  lease  of  a  room  or  apartment  in  a  building  is  termi- 
nated by  the  destruction  of  the  building;  Bowen  v.  Clemens,  161  Mich.  494,  126 
N.  W.  639,  holding  where  lot  leased  was  larger  than  the  building  and  building 
could  have  been  rebuilt  without  trespass  tenant  was  not  relieved  from  payment 
of  rent. 

Cited  in  notes  (10  L.  R.  A.  148)  on  rights  and  remedies  of  lessee  in  case  of 
failure  to  repair;  (22  L.  R.  A.  615)  on  abatement  of  rent  by  surrender  of  prem- 
ises on  destruction  of  leased  building. 

1  L.  R.  A.  533,  SHRYOCK  v.  BUCKMAN,  121  Pa.  248,  15  Atl.  480. 
Judgments   against   married    -women. 

Cited  in  Breckwoldt  v.  Morris,  149  Pa.  293,  24  Atl.  300,  holding  coverture 
may  not  be  collaterally  shown  to  defeat  judgment  good  on  face. 

Cited    in    note    (11    L.    R.    A.    585)    on    personal    judgment    against    married 
woman. 
Collateral  attack  on  judgment. 

Cited  in  Vivian  v.  Challenger,  45  Pa.  Super.  Ct.  6,  holding  that  joint  owner,  in 
action  of  trespass  against  person  taking  entire  property  on  execution  on  judg- 
ment on  note  against  another  joint  owner,  cannot  show  that  note  was  forgery. 
—  Judgment  on  mechanic's  lien. 

Cited  in  Harbach  v.  Kurth,  131  Pa.  184,  18  Atl.  1062,  holding  judgment  on 
mechanic's  lien  cannot  be  collaterally  attacked  in  foreclosure  of  subsequent 
mortgage;  Sicardi  v.  Keystone  Oil  Co.  149  Pa.  147,  24  Atl.  163,  holding  judg- 
ment on  mechanic's  lien  cannot  be  impeached  collaterally  as  to  land  and  build- 
ings covered;  Bankard  v.  Shaw,  199  Pa.  629,  49  Atl.  230,  holding  judgment  on 
note  given  by  married  woman  in  settlement  of  mechanic's  lieu,  good  against 
property,  though  lien  defective. 

Cited  in  note  (83  Am.  St.  Rep.  520)  on  mechanics'  liens  on  separate  property  of 
married  woman. 

1  L.  R.  A.  o3o.  WALSH'S  APPEAL,  122  Pa.  177,  9  A.m.  St.  Rep.  83,  15  Atl.  470. 
What  constitutes  gift  of  thinu   transferable  in  writing. 

Cited  in  Com.  v.  Crompton,  137  Pa.  147,  26  W.  N.  C.  475,  20  Atl.  417,  holding 
gift  of  railroad  stock  by  delivery  to  donee  without  written  assignment,  valid; 
Knight  v.  Tripp.  121  Cal.  679,  54  Pac.  267,  holding  written  assignment  unaccom- 
panied by  actual  or  constructive  delivery  of  property,  not  completed  gift; 
Flanagan  v.  Xash,  185  Pa.  45,  39  Atl.  818,  holding  deposit  in  name  of  two 
persons,  either  or  survivor  having  power  to  draw  money,  not  gift  to  survivor; 
Hemphill's  Estate,  180  Pa.  92,  36  Atl.  406,  holding  mere  direction  to  deliver 
certificate  of  deposit,  insufficient;  Lewis's  Estate,  2  Monaghan  (Pa.)  668,  holding 
valid  gift  of  interest  made  to  mortgagor  by  indorsing  payment  on  mortgage; 
Funston  v.  Twining,  202  Pa.  92,  51  Atl.  736,  holding  reservation  of  interest 
during  life  of  donor,  upon  delivery  of  mortgages,  does  not  invalidate  gift  of 
principal :  Stockham's  Estate,  19  Pa.  Co.  Ct.  C20,  6  Pa.  Dist.  R.  422,  holding 
invalid  gift  intended  to  take  effect  at  donor's  death;  Keily's  Estate,  9  Pa.  Co. 


1  L.R.A.  535]  L.  R.  A.  CASES  AS  AUTHORITIES.  132 

Ct.  176,  20  Phila.  81,  47  Phila.  Leg.  Int.  514,  27  W.  N.  C.  216,  raising,  but  not 
deciding,  question  whether  gift  of  money  in  savings  bank  accomplished  by  deliv- 
ery of  bank  book;  Ritchie's  Estate,  16  Lane.  L.  Rev.  22,  holding  gift  of  interest 
on  mortgage  by  written  instrument,  without  delivery,  void;  Conway's  Estate, 
18  Lane.  L.  Rev.  133,  holding  delivery  of  order  on  bank  for  bonds,  where  donor 
died  before  time  lock  opened  so  that  bonds  could  be  delivered  in  response  thereto, 
sufficient  delivery  to  sustain  gift;  Kulp  v.  March,  13  Montg.  Co.  L.  Rep.  20, 
holding  gift  of  life  insurance  without  delivery  of  policies  or  assignments  invalid; 
Re  Bauernschmidt,  97  Md.  61,  54  Atl.  637,  holding  gift  of  securities  in  safe-deposit 
box  not  perfected  by  delivery  of  duplicate  key,  donor  retaining  control;  Wil- 
liams's  Estate,  11  Pa.  Dist.  R.  637,  holding  a  deposit  in  donee's  name  subject  to 
order  of  another  in  case  of  death,  and  delivery  of  pass  book  to  such  other  con- 
stitutes a  good  gift;  Chapman  v.  Griffith,  12  Xorthamp.  Co.  Rep.  40,  holding  suf- 
ficient, affidavit  of  defense  in  replevin  alleging  that  defendant  has  title  to  goods 
under  parol  agreement  with  plaintiff's  decedent  that  goods  were  to  be  defendant's 
if  she  lived  with  decedent  until  her  death,  which  she  did ;  Smith's  Estate,  23  Lane. 
L.  Rev.  13,  holding  that  promissory  note  to  university,  maturing  after  donors 
death,  is  void,  where  no  other  contributions  were  influenced  by  it  and  no  work 
undertaken. 

Cited  in  footnote  to  Gammon  Theological  Seminary  v.  Robbins,  12  L.  R.  A. 
506,  holding  valid  gift  of  note  retained  by  donor,  not  made  by  instrument 
declaring  gift. 

Cited  in  notes  (11  L.  R.  A.  685)  on  mere  intention  to  give  not  a  gift;  (5  L. 
R.  A.  72)  on  present  delivery  necessary  to  complete  gift;  (3  L.  R.  A.  231)  on 
gift  of  bank  book;  (19  L.  R.  A.  700)  on  delivery  of  bank  book  to  sustain  gift  of 
deposit;  (6  L.  R.  A.  406)  on  deposit  of  fund  in  trust  for  another  as  gift;  (3  L. 
R.A.  392)  on  trust  created  by  deposit  of  money  for  another  use;  (34  Am.  St.  Rep. 
205)  on  intention  to  give  evidenced  by  ineffectual  attempt  to  assign  property 
to  another. 

Distinguished  in  Wylie  v.  Charlton,  43  Neb.  845,  62  N.  W.  220,  holding  parol 
gift  of  land,  followed  by  possession  and  improvement,  good  in  equity;  Griffith's 
Estate,  1  Lack.  Legal  News,  319,  holding  change  in  pavings  bank  deposit,  so  as 
to  make  it  stand  in  joint  names  of  husband  and  wife,  fully  executed  gift  to  wife. 
Gifts  causa  mortis. 

Cited  in  Barnum  v.  Reed,  136  111.  398,  26  N.  E.  572,  holding  gift  causa  mortis 
differs  from  a  gift  inter  vivos  only  in  that  former  revocable  by  donor;  Devol 
v.  Dye,  123  Ind.  325,  7  L.  R.  A.  440,  24  N.  E.  246,  holding  delivery  of  key  to  box 
in  bank  vault  to  cashier,  with  instructions  to  deliver  contents  in  case  of  death, 
valid  gift;  Caylor  v.  Caylor,  22  Ind.  App.  673,  72  Am.  St.  Rep.  331,  52  N.  E. 
465,  holding  direction  to  one  to  deliver  to  donee  property  of  donor  in  his  pos- 
session, valid  gift;  Crook  v.  First  Nat.  Bank,  83  VVis.  40,  35  Am.  St.  Rep.  17. 
52  N.  W.  1131,  holding  order  to  pay  funds  to  donee,  indorsed  on  receipt,  valid 
gift;  Drew  v.  Hagerty,  81  Me.  243,  3  L.  R.  A.  232,  10  Am.  St.  Rep.  255,  17  Atl. 
63,  holding  previous  and  continuous  possession  by  donee  of  bank  book  not  suffi- 
cient delivery  to  effect  gift;  Happ's  Estate,  31  Pittsb.  L.  J.  N.  S.  417,  holding 
money  set  apart  for  another  in  a  secret  place  until  the  donor's  death  not  a  gift 
causa  mortis;  Grow's  Estate,  17  Pa.  Dist.  R.  419,  holding  a  delivery  of  a  savings 
fund  deposit  book  with  words  "I  want  you  to  have  what  is  in  there,  if  any 
thing  happens  to  me"  does  not  constitute  a  valid  gift  causa  mortis;  Bowanka's 
Estate,  37  Pa.  Co.  Ct.  600,  holding  mere  declaration  of  husband,  half  hour  before 
death,  that  he  wishes  wife  to  have  certificate  of  deposit,  insufficient  to  constitute 
gift  causa  mortis. 

Cited   in    footnotes   to    Porter   v.    Woodhouse,    13    L.    R.    A.    64,    which    holds 


]33  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  541 

delivery  of  deeds  to  third  person  without  parting  with  control  not  valid  gift 
cause  mortis;  Peck  v.  Rees,  13  L.  R.  A.  714,  which  holds  deed  not  delivered 
by  grantor's  agent  until  after  his  death,  not  valid  gift. 

(  itod  in  notes  (7  L.  R.  A.  439)  on  gifts  causa  mortis;  (6  L.  R.  A.  367)  on 
what  essential  to  constitute  gift  causa  mortis;  (18  L.  R.  A.  171)  on  constructive 
delivery  to  sustain  gift  causa  mortis;  (99  Am.  St.  Rep.  902,  903)  on  gifts  causa 
mortis. 

1  L.  R.  A.  538,  CULBRETH  v.  SMITH,  69  Md.  450,  16  Atl.  112. 
Joint  tenancy. 

Cited   Colson  v.  Baker,  42  Misc.  409,   87   N.  Y.   Supp.  238,  holding  that  one 
seized  in  fee  of  an  estate  can  by  direct  grant  deed  the  property  to  another  and 
himself  in  joint  tenancy. 
Kstates:   when   Tested   and   when   contingent. 

Cited  in  footnotes  to  Green  v.  Grant,  18  L.  R.  A.  381,  which  holds  children 
have  no  vested  interest  in  land  devised  in  trust  for  mother's  life,  and  upon  her 
death  to  be  conveyed  to  children  then  living,  if  any;  Starnes  v  Hill,  22  L.  R.  A. 
598.  which  holds  husband's  interest  contingent,  on  conveyance  to  wife  for  life, 
with  remainder  over  in  the  event  of  his  outliving  her;  Bowen  v.  Hackney,  67 
L.R.A.  440.  which  holds  that  no  estate  vests  in  children  until  widow's  death  un- 
der will  giving  life  estate  to  widow  and  providing  that  at  her  death  that  given 
to  her  for  life  shall  be  equally  divided  between  all  the  children,  the  representa- 
tives of  those  having  died  to  stand  in  place  of  ancestors. 

Cited   in   note    (9   L.   R.   A.   212)    on   vested   and   contingent   remainders   dis- 
tinguished. 
I.fiist-s  with   covenant   for  perpetual   renewal. 

Cited  in  O'Brien  v.  Clark,  104  Md.  39,  64  Atl.  53,  on  difference  between  lease 
hold  estates  with  and  without  covenants  for  perpetual  renewal. 
Leasehold    as    personal    estate. 

Cited  in  Holzman  v.  Wager,  114  Md.  333,  79  Atl.  205,  Ann.  Gas.  1912  A,  619, 
holding  valid  will  by  male  of  nineteen  bequeathing  leasehold. 
A  .SNIU  liability   of  leases. 

Cited  in  note  (10  Am.  St.  Rep.  557)  on  assignability  of  leases. 

1  L.  R.  A.  541,  NEW  YORK,  P.  &  N.  R.  CO.  v.  COULBOURX,  69  Md.  360,  9 

Am.  St.  Rep.  430,  16  Atl.  208. 
Contributory   negligence   on   leaving;  or  boarding   moving   train. 

Cited  in  Northern  P.  R.  Co.  v.  Egeland,  5  C.  C.  A.  473,  12  U.  S.  App.  271,  56 
Fed.  202;  Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Bean,  9  Ind.  App.  243,  36  N. 
E.  443;  Omaha  Street  R.  Co.  v.  Craig,  39  Neb.  614,  58  N.  W.  209;  Louisville 
&  N.  R.  Co.  v.  Crunk,  119  Ind.  533,  12  Am.  St.  Rep.  443,  21  N.  E.  31,— holding 
it  not  negligence  as  matter  of  law  to  alight  while  cars  in  motion;  Lacas  v. 
Detroit  City  R.  Co.  92  Mich.  416,  52  N.  W.  745,  holding  it  not  negligence  to 
alight  after  having  started  to  place  foot  on  running  board,  though  go-ahead 
bell  has  rung;  Baltimore  Traction  Co.  v.  State,  78  Md.  423,  28  Atl.  397,  holding 
it  negligence  per  se  to  attempt,  with  both  hands  filled,  to  board  car  moving  at 
6  miles  per  hour;  Creech  v.  Charleston  &  W.  C.  R.  Co.  66  S.  C.  534,  45  S.  E.  86, 
holding  one  boarding  train  moving  at  3  miles  an  hour,  not  negligent  as  a  matter 
of  law:  Hunterson  v.  Union  Traction  Co.  205  Pa.  579,  55  Atl.  543  (dissenting 
opinion)  majority  holding  stepping  off  or  on  moving  car  negligence  per  se;  Walters 
v.  Missouri  P.  R.  Co.  82  Kan.  743,  28  L.R.A.(N.«.)  1060.  109  Pac.  173,  holding  it  a 
question  for  the  jury  where  passenger  alights  from  moving  train  under  direction 


1  L.R.A.  541]  L.  R.  A.  CASES  AS  AUTHORITIES.  134 

of  conductor  and  imperative  orders;  State  use  of  Mummaugh  v.  Western  Mary- 
land R.  Co.  98  Md.  131,  103  Am.  St.  Rep.  388,  56  Atl.  394,  1  A.  &  E.  Ann.  Gas. 
598,  holding  railroad  company  liable  for  negligence  resulting  in  injury  to  one 
going  on  its  car  to  deliver  property  for  transportation  with  knowledge  and  con- 
sent of  company;  United  R.  &  Electric  Co.  v.  Rosik,  107  Md.  145,  68  Atl.  511; 
United  R.  &  Electric  Co.  v.  Weir,  102  Md.  290,  62  Atl.  588,— holding  it  must  de- 
pend always  upon  the  circumstances  of  the  particular  case  whether  the  attempt 
to  alight  from  a  moving  car  be  negligence  per  se;  Chesapeake  &  0.  R.  Co.  v.  Paris 
(Chesapeake  &  0.  R.  Co.  v.  Bell)  111  Va.  57,  28  L.R.A.  (N.S.)  779,  68  S.  E.  398 
(dissenting  opinion),  on  negligence  of  person  who  entered  car  to  assist  passenger 
in  alighting  from  moving  train. 

Cited  in  footnotes  to  Philadelphia,  W.  &  B.  R.  Co.  v.  Anderson,  8  L.  R.  A. 
674,  which  holds  it  is  not  negligent  per  se  to  alight  from  train  moving  slowly 
after  stopping  at  station  called;  Hunter  v.  Cooperstown  &  S.  Valley  R.  Co.  12 
L.  R.  A.  429,  which  holds  attempt  to  board  train  when  near  prominent  obstruc- 
tion, negligence;  Weber  v.  Kansas  City  Cable  R.  Co.  7  L.  R.  A.  819,  which  holds 
alighting  on  wrong  side  of  cable  car  going  at  full  speed,  negligence;  Western 
Maryland  R.  Co.  v.  Herold,  14  L.  R.  A.  75,  which  holds  jumping  from  train 
moving  down  steep  grade,  with  no  one  in  charge,  not  negligence  per  se. 

Cited  in  notes  (11  L.  R.  A.  396)  on  negligence  of  passenger  alighting  from 
moving  train;  (21  L.  R.  A.  363)  on  injuries  in  getting  on  and  off  moving  train; 
(3  L.R.A.  369)  on  injury  suffered  in  alighting  from  train;  (17  Am.  St.  Rep.  426) 
on  contributory  negligence  in  alighting  from  moving  train. 

Distinguished  in  Garvey  v.  Rhode  Island  Co.  26  R.  I.  83,  58  Atl.  456,  holding  it 
negligence  per  se  for  one,  while  waiting,  to  take  a  position  within  line  of  the 
passing  car. 

1  L.  R.  A.  545,  BALLS  v.  DAMPMAN,  69  Md.  390,  16  Atl.  16. 
Necessity   of  reference   to   power   in   will. 

Followed  in  Cooper  v.  Haines,  70  Md.  284,  17  Atl.  79,  holding  reference  to  sum, 
without  mention  of  power,  sufficient;  Mines  v.  Gambrill,  71  Md.  35,  18  Atl.  43, 
holding  general  disposition  of  property,  without  reference  to  power,  not  execu- 
tion of  same. 

Cited  in  notes    (2  L.   R.  A.   114)    on  inalienability   of  interest   of   cestui  quc 
trust;    (64  L.  R.  A.  872)    on  what  is  sufficient  execution,  by  will,  of  power  of 
appointment. 
Interest  of  life  tenant  with  power  to  appoint. 

Cited  in  Re  Weien,  139  Iowa,  675,  18  L.R.A. (N.S.)  475,  116  N.  W.  791  (dis- 
senting opinion),  on  power  as  a  right  independent  of  donee's  life  estate;  Price 
v.  Cherbonnier,  103  Md.  Ill,  63  Atl.  209,  holding  the  donee  of  an  equitable  life 
estate  with  power  to  devise  to  his  children,  has  no  interest  that  can  be  reached 
by  his  creditors  after  his  death. 
Direction  for  payment  of  debts  as  charge  on  land. 

Approved  in  Harmon  v.  Smith,  38  Fed.  484,  setting  aside  conveyance  by 
executor,  where  personalty  sufficient  to  have  met  all  debts. 

1  L.  R.  A.  546,  BOWIE  v.  HALL,  69  Md.  433,  9  Am.  St.  R,ep.  433,  16  Atl.  64. 
Stipulation  for  attorneys'  fees  as  affecting  negotiability. 

Cited  in  Sylvester  Bleckley  Co.  v.  Alewine,  48  S.  C.  311,  37  L.  R.  A.  88,  foot- 
note p.  86,  26  S.  E.  609,  which  holds  note  rendered  non-negotiable  by  stipulation 

Cited  in  footnotes  to  Adams  v.  Seaman,  7  L.  R.  A.  224,  which  holds  to  same 
effect;  Montgomery  v.  Crosthwait,  12  L.  R.  A.  140;  Farmers'  Nat.  Bank  v. 


J3J  L.  R.  A.  CASES  AS  AUTHORITIES.  [l   L.R.A.  .'4< 

Sutton  Mfg.  Co.  17  L.  R.  A.  595;  Dorsey  v.  Wolff,  18  L.  R.  A.  428;  Oppenheimer 
v.  Farmers'  &  M.  Bank,  33  L.  R.  A.  767;  Bank  of  Commerce  v.  Fuqua,  14  L.  R. 
A.  588, — which  hold  negotiability  not  affected  by  stipulation. 

Cited  in  notes    (7  L.  R.  A.  537)    on  requisites  to  negotiability;    (7  L.  R.  A. 
445)   on  stipulation  for  attorneys'  fees  in  promissory  notes;    (3  L.  R.  A.  51)   on 
effect  of  stipulation   for  attorneys'  fees  on  certainty  as  to  payment  of  promis- 
sory note. 
Validity  of  stipulation    for  attorneys'  fee*. 

Approved  in  Gaither  v.  Tolson,  84  Md.  639,  36  Atl.  449,  holding  stipulation  in 
mortgage  for  payment  of  costs  of  collection,  valid. 

Cited  in  Chestertown  Bank  v.  Walker,  90  C.  C.  A.  140,  163  Fed.  511,  holding 
a  contract  for  payment  of  attorney's  fees,  if  note  is  not  paid  at  maturity  to  the 
extent  of  a  reasonable  fee,  is  valid  in  Maryland. 

Cited  in  footnotes  to  Levens  v.  Briggs,  14  L.  R.  A.  188,  which  holds  stipula- 
tion for  payment  of  certain  percentage  as  attorneys'  fee,  invalid,  though  "reason- 
able" fee  valid;  Farmers'  Nat.  Bank  v.  Sutton  Mfg.  Co.  17  L.  R.  A.  595,  which 
holds  unconditional  stipulation,  valid;  Bank  of  Commerce  v.  Fuqua,  14  L.  R. 
A.  588,  which  holds  stipulation  for  payment  of  "all  attorneys'  fees,"  valid; 
Dorsey  v.  Wolff,  18  L.  R.  A.  428,  which  holds  stipulation  for  10  per  cent 
attorneys'  fee  not  void  for  usury;  Pattillo  v.  Alexander,  29  L.  R.  A.  616,  which 
tolds  indorser's  stipulation  to  pay  attorneys'  fees  in  case  of  collection  at  law, 
•enforceable  only  after  proof  of  payment  thereof,  or  liability  incurred. 

Cited  in  note  (55  Am.  St.  Rep.  442)  on  validity  of  stipiilations  for  attorneys' 
fees. 

1  L.  R.  A.  548,  PHENIX  INS.  CO.  v.  RYLAND,  69  Md.  437,  16  Atl.  109. 
Extension   of  credit   on   premium. 

Approved  in  McCabe  Bros.  v.  Mtna.  Ins.  Co.  9  N.  D.  25,  47  L.  R.  A.  645,  81 
X.  W.  426.  holding  prepayment  of  premium  not  essential  to  validity  of  parol 
contract  of  renewal  with  agent. 

Cited  in  Mallette  v.  British  American  Assur.  Co.  91  Md.  483,  46  Atl.  1005, 
holding  agent  authorized  to  waive  prepayment  of  premium  on  agreement  to 
renew  policy. 

Cited  in  footnote  to  Idaho  Forwarding  Co.  v.  Fireman's  Fund.  Ins.  Co.  17  L. 
R.  A.  586.  which  holds  agent's  contract  to  renew  policy  not  to  create  present 
contract  of  insurance. 

Cited  in  note  (22  L.  R.  A.  771)  on  validity  of  oral  insurance  contract. 
Incidental  Jurisdiction  of  equity  to  decree  damages. 

Followed  in  Maryland  Home  F.  Ins.  Co.  v.  Kimmell,  89  Md.  442,  43  Atl.  764, 
ordering  payment  of  policy  after  reformation. 

Approved  in  Dodd  v.  Home  Mut.  Ins.  Co.  Co.  22  Or.  12,  28  Pac.  884,  refusing 
to  retain  case  to  determine  legal  rights  where  equity  fails. 

Cited  in  Walzl  v.  King,  113  Md.  556,  77  Atl.  1117,  holding  that  equity,  in  suit 
for  specific  performance  of  land   contract,  may   determine  purchaser's  right   to 
damages  for  vendor's  refusal  to  perform. 
I'M  v\  IT  of  equity  to  conform  written   instrument  to  oral  agreement. 

Approved  in  Pickett  v.  Wadlow,  94  Md.  568,  51  Atl.  423,  holding  that,  upon 
proper  proof,  deed  may  be  changed  to  mortgage. 

Cited  in  note    (28  L.R.A.(X.S.)    919)    on  sufficiency  of  proof  to  justify  relief 
from  mistake  of  law  as  to  effect  of  instrument. 
To  enforce  instrument  n»  reformed. 

Cited  in  ^Etna  Indemnity  Co.  v.  Baltimore.  S.  P.  &  C.  R.  Co.  112  Md.  397.  70 
Atl.  251,  holding  it  may  retain  control  and  enforce  the  instrument  as  reformed. 


1  L.R.A.  548]  L.  R.  A.  CASES  AS  AUTHORITIES.  13(J 

1  L.  R.  A.  551,  BISHOP  v.  McCLELLAND,  44  N.  J.  Eq.  450,  16  Atl.  1. 

Decree  as  to  distribution  of  other  half  of  fund  in  Neilson  v.  Bishop,  45  N.  J. 
Eq.  475,  17  Atl.  962. 
(.ill-   by   implication. 

Approved  in  Barnard  v.  Barlow,  50  N.  J.  Eq.  135,  24  Atl.  912,  holding  failure 
to  devise  remainder  after  life  estate  to  daughter,  and  specific  gift  of  $1  only 
to  sons,  implied  gift  thereof  to  issue  of  daughters;  Wolff e  v.  Loeb,  98  Ala.  433, 
13  So.  744,  holding  absolute  devise  of  all  land  to  wife  not  to  be  implied  from 
provision  that  she  should  be  "sole  controller"  thereof;  Ball  v.  Phelan,  94  Miss. 
318,  23  L.R.A. (N.S.)  898,  49  So.  956,  holding  that  a  devise  by  implication  must 
be  predicated  of  a  necessary  implication,  and  the  probability  of  the  testator's 
intention  to  make  the  gift  must  be  so  strong  as  to  exclude  the  idea  that  a  con- 
trary intention  existed  in  his  mind. 

Cited  in  Sumpter  v.  Carter,  115  Ga.  990,  60  L.R.A.  277,  42  S.  E.  324,  on  gifts 
by  implication. 

Cited  in  footnote  to  Lord  v.  New  York  L.  Ins.  Co.  56  L.  R.  A.  597,  which 
holds  gift  and  delivery  of  policy  provable  by  declaration  of  donor. 

Cited  in  notes    (11  L.  R.  A.  684)    on  gifts;    (5  L.  R.  A.  72)    on  necessity  of 
present  delivery  in  gifts  inter  vivos;  (15  L.R.A. (N.S.)  74)  on  devise  or  bequest  by 
implication. 
Gift  of  income  as  gift  of  fund. 

Followed  in  Lippincott  v.  Pancoast,  47  N.  J.  Eq.  26,  20  Atl.  360,  holding 
legatee's  interest  in  fund,  income  to  which  to  be  paid  to  him  and  "his  heirs," 
vested  and  distributable  among  his  personal  representatives;  Hartson  v.  Elden, 
50  N.  J.  Eq.  524,  26  Atl.  561,  holding  gift  of  income  from  fund  to  be  applied 
to  care  of  cemetery  forever,  gift  of  fund,  and  void  as  perpetuity. 

Cited  in  Re  Ingersoll,  95  App.  Div.  212,  88  N.  Y.  Supp.  698,  holding  that  a  gift 
of  the  income  and  so  much  of  the  principal  as  may  be  necessary  for  the  educa- 
tion of  the  beneficiaries  gives  the  fee  to  the  latter;  Illensworth  v.  Illensworth,  39 
Misc.  197,  79  N.  Y.  Supp.  410,  holding  that  under  direction  for  the  investing  of 
the  legatee's  share  for  his  benefit  for  life  and  for  the  benefit  of  his  wife  and  his 
issue  after  his  death,  the  remainder  vested  absolutely  in  them  after  his  death. 
Limitation  over. 

Cited  in  Smith  v.  Jackman,  115  Mich.  195,  73  N.  W.  228,  holding  gift  to  wife 
payable  at  such  time  as  she  may  elect,  vests  on  testator's  death;  Patterson  v. 
Madden,  54  N.  J.  Eq.  724,  36  Atl.  275,  holding  son  takes  devestable  estate  in  fee 
under  devise  to  him,  with  remainder  over  in  case  of  death  without  issue,  leaving 
widow,  before  death  of  testator's  wife. 

Cited  in  notes    (3  L.  R.  A.   691;   9  L.  R.  A.  212)    on  vested  and  contingent 
remainders;   (10  Am.  St.  Rep.  474)  on  vested  and  contingent  legacies. 
Jurisdiction  for  construction   of  will. 

Cited  in  note  (10  L.  R.  A.  767)  on  jurisdiction  of  suit  for  construction  of 
will. 

1  L.  R.  A.  554,  MILLER  v.  CAMERON,  45  N.  J.  Eq.  95,  15  Atl.  842. 
Enforceabilitr   of   unilateral   contracts. 

Approved  in  Perry  v.  Paschal,  103  Ga.  137,  29  S.  E.  703,  holding  mutuality 
created  by  institution  of  proceeding  to  enforce;  Humes  v.  Swift,  2.7  Pa.  Co.  Ct. 
185,  holding  that  a  conditional  or  unilateral  contract  may  be  enforceable  in 
equity. 

Cited  in  Western  Timber  Co.  v.  Kalama  River  Lumber  Co.  42  Wash.  620.  6 
L.R.A.  (N.S.)  401,  114  Am.  St.  Rep.  137,  85  Pac.  338,  7  A.  &  E.  Ann.  Cas.  667, 


137  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  561 

holding  that  a  unilateral  contract  may  be  enforced  by  the  party  who  did  not  sign 
it 

Cited  in  note  (6  L.R.A.(N.S.)  398)  on  right  of  party,  not  bound  because  he  did 
not  sign  contract,  to  enforce  specific  performance. 
Necessity  of  tender  of  performance. 

Approved  in  Clarno  v.  Grayson,  30  Or.  142,  46  Pac.  426,  holding  necessity  for 
tender  of  purchase  price  not  waived  by  existence  of  unadjusted  account  between 
parties. 

Cited  in  Maryland  Const.  Co.  v.  Kuper,  90  Md.  542,  45  Atl.  197,  holding  acqui- 
sition of  title  by  vendor  before  time  for  conveyance  under  terms  of  contract, 
sufficient;  Trogden  v.  Williams,  144  N.  C.  206,  10  L.R.A. (N.S.)  873,  56  S.  E.  865, 
holding  that  relief  will  be  granted  when  the  party  seeking  the  aid  of  the  court, 
has  complied  with  the  terms  of  the  option. 

Annotation  cited  in  Matteson  v.  United  States  &  C.  Land  Co.  103  Minn.  411, 
115  N.  W.  195,  holding  that  an  allegation  of  willingness  to  perform  was  suf- 
ficient. 

1   L.  R.  A.  555,  WOONSOCKET  INST.  FOR  SAVINGS  v.  BALLOU,   16  R.   I. 

351,  16  Atl.  144. 
Words  sufficient  to  create  chargre  on  land. 

Followed  in  Chase  v.  Peckham,  17  R.  I.  386,  22  Atl.  285,  holding  devise  to 
nephews,  "they  paying  out  of  the  same  all  my  just  debts,"  sufficient. 

Cited  in  Calder  v.  Curry.  17  R.  I.  616,  24  Atl.  103,  holding  plain  implication 
sufficient,  although  statute  requires  "direction"  by  testator;  Re  Martin,  25  R.  I. 
12,  54  Atl.  589,  on  power  to  charge  land  primarily  for  debts. 

Cited  in  notes  (5  L.R.A. (N.S.)  366)  on  testamentary  trusts  for  payment  of 
debts;  (25  Eng.  Rul.  Gas.  817)  on  what  is  necessary  to  exonerate  general  personal 
estate  of  testator  from  his  debts. 

Distinguished  in  Sampson  v.  Grogan,  21  R.  I.   185,  44  L.  R.  A.  715,  42  Atl. 
712,  holding  provision  that  devisee  of  house  should  "keep  the  same  in  repair" 
did  not   impose  obligation  to  rebuild  after  destruction  by  fire. 
Effect  of  payment  by  one  of  several  joint  debtors  on  running  of  limita- 
tions. 

Cited  in  Regan  v.  Williams,  185  Mo.  633,  105  Am.  St.  Rep.  600,  84  S.  W.  959, 
Affirming  88  Mo.  App.  589,  on  the  application  of  the  proceeds  of  the  sale  by 'the 
trustee  under  deed  of  trust,  as  such  part  payment  as  to  suspend  operation  of 
statute. 

Cited  in  notes  (37  L.R.A. (N.S.)  276)  on  payment  or  promise  by  principal  as 
extending  limitation  period  as  to  surety;  (65  Am.  St.  Rep.  688,  689)  on  effect  of 
payment  or  acknowledgment  by  one  joint  debtor  on  running  of  limitations. 

Criticized  and  limited  in  Regan  v.  Williams,  88  Mo.  App.  589,  holding  credit 
entered  by  payee  without  maker's  consent,  ineffective  to  prevent  bar. 

Disapproved  in  Bergman  v.  Ely,  13  C.  C.  A.  322,  27  U.  S.  App.  650,  66  Fed, 
42;  and  Cowhick  v.  Shingle,  5  Wyo.  100,  25  L.  R.  A.  612,  63  Am.  St.  Rep.  17, 
37  Pac.  689,  holding  payment  by  one  joint  maker  does  not  interrupt  running  of 
limitation  as  to  others. 
Applicability  of  statute  of  limitations  to  trnsts. 

Cited  in  notes  (35  L.  ed.  U.  S.  1031)  on  applicability  of  statute  of  limitations 
to  trusts;  (16  Eng.  Rul.  Cas.  270)  on  running  of  limitations  in  case  of  breach  of 
fiduciary  duty. 

1  L.  R.  A.  561,  Re  McMANAMAN,  16  R,  I.  358,  16  Atl.  148. 


1  L.R.A.  563]  L.  R.  A.  CASES  AS  AUTHORITIES.  13» 

1   L.  R.  A.  563,  McGURK  v.  METROPOLITAN  L.  INS.  CO.   56  Conn.   528,   16 

Atl.  263. 
Imputing;  siucnt's  knowledge  to  company. 

Approved  in  Marston  v.  Kennebec  Mut.  L.  Ins.  Co.  89  Me.  273,  56  Am.  St. 
Rep.  412,  36  Atl.  389,  holding  company  estopped  to  deny  truth  of  answers  in 
application  written  by  agent;  Quinn  v.  Metropolitan  L.  Ins.  Co.  10  App.  Div. 
486,  41  N.  Y.  Supp.  1060,  holding  forfeiture  by  infirmity  waived  by  delivery 
of  policy  by  agent  aware  thereof;  Supreme  Lodge.  K.  of  H.  v.  Davis,  26  Colo. 
259,  58  Pac.  595,  holding  company  chargeable  with  knowledge  of  misrepre- 
sentations concerning  age  of  applicant,  of  which  agent  was  aware. 

Cited  in  Marsh  v.  Wheeler,  77  Conn.  456,  107  Am.  St.  Rep.  40,  59  Atl.  410, 
holding  that  notice  to  an  agent  of  a  fact  outside  the  scope  of  his  agency  does  not 
affect  his  principal;  Bernhard  v.  Rochester  German  Ins.  Co.  79  Conn.  394,  65  Atl. 
134,  8  A.  &  E.  Ann.  Cas.  298,  on  the  knowledge  of  the  agent  as  knowledge  of  the 
defendant. 

Cited  in  footnotes  to  Birmingham  Trust  &  Sav.  Co.  v.  Louisiana  Nat.  Bank, 
20  L.  R.  A.  600,  which  holds  notice  to  cashier  notice  to  trust  and  savings  com- 
pany; Wittenbrock  v.  Parker,  24  L.  R.  A.  197,  which  holds  notice  to  one  attor- 
ney notice  to  other  members  of  law  firm. 

Cited  in  notes  (2  L.  R,  A.  735)  on  notice  to  agent  is  notice  to  principal; 
(2  L.  R.  A.  809)  on  ratification  of  acts  of  general  or  special  agent;  (11  L.  R. 
A.  344)  on  knowledge  of  agent  of  fire  insurance  company  imputable  to  company: 
(13  L.R.A. (N.S.)  831;  9  Am.  St.  Rep.  232)  on  imputing  agent's  knowledge  to 
company. 

Distinguished  in  Ward  v.  Metropolitan  L.  Ins.  Co.  66  Conn.  239,  50  Am.  St. 
Rep.  80,  33  Atl.  902,  denying  presumption  of  communication  to  company. 
Waiver  by  receipt  of  premiums. 

Approved  in  Germania  L.  Ins.  Co.  v.  Koehler,  168  111.  306,  61  Am.  St.  Rep. 
108,  48  N.  E.  297,  holding  forfeiture  by  residence  outside  limits  prescribed 
waived;  Northwestern  Mut.  L.  Ins.  Co.  v.  Freeman,  19  Tex.  Civ.  App.  635,  47 
S.  W.  1025,  holding  forfeiture  incurred  by  engaging  in  prohibited  occupations 
waived;  Marshall  Farmers'  Home  F.  Ins.  Co.  v.  Liggett.  16  Ind.  App.  603,  45 
N.  E.  1062,  holding  forfeiture  by  nonpayment  of  assessments  waived  by  reten- 
tion thereof  after  collection  by  agent  aware  of  loss;  Menard  v.  Society  of  St. 
Jean  Baptiste,  63  Conn.  175,  27  Atl.  1115,  holding  forfeiture  by  nonpayment  of 
death  fee  waived. 

Cited  in  German  Ins.  Co.  v.  Gray,  43  Kan.  507,  8  L.  R.  A.  78,  19  Am.  St.  Rep. 
150,  23  Pac.  637,  holding  retention  of  premiums  by  company  after  notice  to 
agent  of  existence  and  necessity  for  renewal  of  encumbrances,  waiver  of  for- 
feiture because  of  encumbrances;  Farmer's  Mut.  F.  Ins.  Co.  v.  JackmaH,  35  Ind. 
App.  16,  73  N.  E.  730,  holding  that  knowledge  to  agent  is  knowledge  to  com- 
pany of  change  of  ownership  of  premises,  and  the  right  of  forfeiture  is  waived 
by  acceptance  of  premiums  afterward. 

Cited  in  note    (9  L.  R.  A.   189)    on  forfeiture  of  benefit  certificate. 

Limited  and  distinguished  in  Ward  v.  Metropolitan  L.  Ins.  Co.  66  Conn.  240, 
50  Am.   St.   Rep.   80,   33   Atl.   902,   holding  breach   of   warranty   not  waived   by 
agent's  continuing  to  collect  premiums  with  knowledge  of  falsity. 
Stipulation    in    policy    against    engraving;    in    liquor    business. 

Cited  in  footnote  to  Moerschbaecher  v.  Siipreme  Council.  R.  L.  52  L.  R.  A. 
281,  which  holds  policy  in  benefit  society  forfeited,  without  formal  notice,  by 
maintaining  saloon  in  violation  of  by-law. 


139  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  567 

Time  covered  by  provision   us  to  occupation  of  insured. 

Cited  in  note  (5  L.R.A.(X.S.)  285)  on  time  covered  by  provision  or  representa- 
tion with  respect  to  habits  or  occupation  of  insured. 

1   L.  R.  A.  567,  Re  COOK,  77  Cal.  220,  11  Am.  St.  Rep.  267,   17  Pac.  923,   19 

Pac.  431. 
Kiiinl  accounting:  in  probnte  court. 

Cited  in  Re  Alfstad,  27  Wash.  184,  67  Pac.  593,  holding  probate  court  could 
not,  upon  final  accounting  of  administratrix,  determine  her  claim  as  partner  of 
deceased;  Re  Smith,  108  Cal.  122,  40  Pac.  1037,  denying  right  of  court  to  deduct 
amount  due  estate  by  deceased  executor,  upon  distribution,  where  accounting  had 
not  been  compelled. 
Entry  of  judgment  nnnc  pro  tnnc. 

Cited  in  Young  v.  Young,  165  Mo.  632,  88  Am.  St.  Rep.  440,  65  S.  W.  1016, 
holding  nunc  pro  tune  decree  of  divorce  after  death  of  plaintiff  void  if  no 
record  evidence  as  basis;  Stewart  v.  Hall,  106  Ga.  175,  32  S.  E.  14,  holding  judg- 
ment nunc  pro  tune  may  be  entered  without  notice;  People  v.  Lenon,  79  Cal. 
H32,  21  Pac.  967,  authorizing  entry  of  nunc  pro  tune  criminal  judgment  without 
presence  of  the  prisoner;  Holt  v.  Holt,  107  Cal.  261,  40  Pac.  390,  authorizing 
entry  of  judgment  nunc  pro  tune  in  divorce  action  where  clerk  had  failed  to 
render  judgment  as  ordered;  Mock  v.  Chancy,  36  Colo.  65,  87  Pac.  538,  holding 
that  whenever  a  judgment  has  been  pronounced,  but  has  not  been  entered  of 
record,  the  court  may  upon  proper  proof,  have  judgment  entered  nunc  pro  tune. 
as  of  date  rendered;  Confer's  Estate,  34  Pa.  Co.  Ct.  185,  17  Pa.  Dist.  R.  743,. 
holding  that  where  a  woman  obtained  a  judgment  of  divorce  but  it  was  not  to  be 
entered  until  she  paid  the  costs,  which  she  did  after  marrying  the  second  time,, 
the  judgment  then  entered  related  back  to  time  when  rendered  and  the  second 
marriage  was  valid;  Zahorka  v.  Geith,  129  Wis.  506,  109  N.  W.  552,  holding  that 
where  a  judgment  of  divorce  is  duly  pronounced  in  divorce  proceedings,  but  the 
i  lerk  fails  to  enter  it,  it  may  be  entered  nunc  pro  tune  so  as  to  dissolve  the  mar- 
riage as  of  the  date  of  former  judgment. 

Cited  in  footnote  to  Hilker  v.  Kelley,  15  L.  R.  A.  622,  which  holds  nunc  pro 
tune  judgment  may  be  entered  on  death  of  party  after  verdict. 
Mode  of  entering:  judgment. 

Cited  in  note   (28  L.  R.  A.  623)   on  what  constitutes  entry  or  record  of  judg- 
ment, and  how  made. 
Rendition   and  amendment   of  judgement. 

Cited  in  Schurtz  v.  Romer,  81  Cal.  247,  22  Pac.  657,  holding  judgment  rendered 
when  announced  by  court,  within  meaning  of  statute  providing  for  appeals  within 
certain  time  from  rendition  of  judgment;  Crim  v.  Kessing,  89  Cal.  488.  23  Am. 
St.  Rep.  491,  26  Pac.  1074,  holding  that  where  findings  of  fact  are  waived  entry 
of  decision  in  minutes  of  court  constitutes  "rendition  of  the  judgment;"  Baker 
v.  Brickell,  102  Cal.  623,  36  Pac.  950,  holding  effect  of  judgment  cannot  be 
destroyed  by  failure  of  clerk  to  docket  it  and  prepare  and  file  judgment  roll; 
San  Joaquin  Land  &  Water  Co.  v.  West,  99  Cal.  347.  33  Pac.  928,  holding  that 
decision  of  the  court  in  writing,  filed  with  clerk,  amounts  to  rendition  of  judg- 
ment; Byrne  v.  Hoag.  116  Cal.  5,  47  Pac.  775,  denying  right  to  amend  a  year 
and  a  half  after  rendition  of  judgment  entered  by  clerk  as  directed  by  court; 
First  Nat.  Bank  v.  Busy,  110  Cal.  76,  42  Pac.  476,  denying  right  of  trial  court 
to  amend  judgment  entered  in  accordance  with  its  findings  and  direction;  O'Brien 
v.  O'Brien,  124  Cal.  429,  57  Pac.  225.  on  the  time  of  the  rendition  of  a  judgment; 
Re  Wood,  137  Cal.  133,  69  Pac.  900,  holding  that  the  time  within  which  persona 


1  L.R.A.  567]  L.  R.  A.  CASES  AS  AUTHORITIES.  140 

divorced,  may  marry,  begins  to  run  from  time  judgment  is  rendered,  regardless 
of  when  entered  by  clerk;  Otto  v.  Long,  144  Cal.  146,  77  Pac.  885,  as  to  the  time 
of  the  rendition  of  a  judgment;  Baum  v.  Roper,  1  Cal.  App.  437,  82  Pac.  390, 
holding  that  the  making  and  filing  of  findings  of  fact  and  conclusions  of  law 
constitute  the  rendition  of  judgment;  Darlington  v.  Butler,  3  Cal.  App.  453,  86 
Pac.  194,  holding  that  a  judgment  of  dismissal  of  the  action  became  effective  and 
final  when  the  court  rendered  its  decision  in  open  court  and  it  was  entered  in  the 
minute  book,  and  in  judgment  book,  though  not  signed  by  judge;  Brownell  v. 
Superior  Ct.  157  Cal.  707,  109  Pac.  91,  holding  that  decree  was  rendered  on  day 
it  was  signed,  filed  and  entered  on  minutes,  though  it  was  dated  as  of  prior  day 
on  which  hearing  was  had  and  decision  announced  orally  by  court. 

Cited  in  note  (129  Am.  St.  Rep.  746)   on  necessity  of  entry  of  judgment. 

Distinguished  in  Callanan  v.  Votruba,  104  Iowa,  673,  40  L.R.A.  376,  63  Am.  St. 
Rep.  538,  74  N.  W.  13,  holding  that  under  the  statute,  a  judgment  does  not  be- 
come a  lien  until  entered  upon  the  records,  although  made  to  be  a  lien  from  time 
of  rendition. 

1  L.  R.  A.  572,  FISCHER  v.  TRAVELERS  INS.  CO.  77  Cal.  246,  19  Pac.  425. 
Defense  of  intentional  killing  or  injury  of  insured. 

Cited  in  De  Graw  v.  National  Acci.  Soc.  51  Hun,  146,  4  N.  Y.  Supp.  912; 
Johnson  v.  Travelers'  Ins.  Co.  15  Tex.  Civ.  App.  316,  39  S.  W.  972;  Orr  v. 
Travelers  Ins.  Co.  120  Ala.  651,  24  So.  997, —  holding  accident  insurance  com- 
pany not  liable  for  intentional  killing  of  insured;  Continental  Casualty  Co.  v. 
Morris,  46  Tex.  Civ.  App.  399,  102  S.  W.  773,  holding  that  where  policy  provided 
that  in  case  of  intentional  injuries,  only  one  tenth  of  the  face  of  policy  could  be 
recovered,  the  beneficiary  could  recover  only  one  tenth  for  the  intentional  killing 
by  a  third  person. 

Cited  in  footnote  to  Jarnagin  v.  Travelers'  Protective  Asso.  68  L.R.A.  499, 
which  holds  that  failure  of  police  officers  to  protect  insured  while  in  their  charge 
from  assaults  by  other  persons  will  not  take  his  killing  out  of  provision  against 
recovery  in  case  of  death  from  intentional  injuries. 

Cited  in  notes  (9  L.  R.  A.  686;  13  L.  R.  A.  265)  on  conditions  in  policy; 
death  from  injuries  intentionally  inflicted;  (6  L.  R.  A.  496)  on  life  insurance; 
death  caused  by  crime;  (30  L.  R.  A.  208)  on  what  constitutes  an  accident  within 
the  meaning  of  an  accident  insurance  policy. 

1  L.  R.  A.  572,  SHARON  v.  TERRY,  13  Sawy.  387,  36  Fed.  337. 

Report  of  action  in  state  court  to  have  marriage  declared  valid  in  Sharon  v. 
Sharon,  79  Cal.  633,  22  Pac.  26,  131. 
Priority  and  exclnsiveness  between  courts  of  concurrent  jurisdiction. 

Approved  in  Vowinckel  v.  Clark,  162  Fed.  993.  holding  that  as  between  two 
courts  having  concurrent  jurisdiction  the  one  which  first  obtains  jurisdiction  of 
the  subject,  has  the  exclusive  jurisdiction. 

Cited  in  Rodgers  v.  Pitt,  96  Fed.  670;  Gamble  v.  San  Diego,  79  Fed.  500,  and 
Ewing  v.  Mallison,  65  Kan.  488,  93  Am.  St.  Rep.  299.  70  Pac.  369,  holding  that  of 
two  courts  with  concurrent  jurisdiction  the  one  first  acquiring  should  retain 
it;  Foster  v.  Bank  of  Abingdon,  68  Fed.  726,  and  Hatch  v.  Bancroft-Thompson 
Co.  67  Fed.  808,  holding,  state  court  jurisdiction  having  first  attached,  Federal 
court  powerless  to  afford  relief;  Starr  v.  Chicago,  R.  I.  &  P.  R.  Co.  110  Fed.  6, 
holding  Federal  court  first  acquired  jurisdiction  and  would  retain  it;  Foley  v. 
Hartley,  72  Fed.  573,  holding  proceedings  in  Federal  court  suspended  until 
determination  in  state  court  which  first  obtained  jurisdiction  of  all  parties; 
Central  Trust  Co.  v.  South  Atlantic  &  O.  R.  Co.  57  Fed.  10,  holding  appoint- 


141  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  572 

ment  of  state  receiver  would  not  be  superseded  by  Federal  receiver;  Gilmour 
v.  Ewing,  50  Fed.  C58,  holding  pendency  of  suit  in  state  court  with  concurrent 
jurisdiction  no  bar  to  suit  in  Federal  court  on  same  subject-matter;  Powers  v. 
Blue  Grass  Bldg.  &  L.  Asso.  86  Fed.  708,  holding  pendency  of  suit  in  state 
court  no  bar  to  suit  in  Federal  court  between  same  parties  where  relief  sought 
is  different;  Clark  v.  Five  Hundred  and  Five  Thousand  Feet  of  Lumber,  12  C. 
C.  A.  632,  24  U.  S.  App.  509,  65  Fed.  240,  holding  libel  in  admiralty  court  gives 
prior  jurisdiction  to  subsequent  attachment  in  state  court;  Thorpe  v.  Sampson, 
$4  Fed.  66,  holding  state  court,  having  first  acquired  jurisdiction,  should  retain 
it;  Craig  v.  Hoge,  95  Va.  280,  28  S.  E.  317,  holding  proceedings  in  one  state  court 
would  be  enjoined  where  another  court  of  the  same  state  h"'l  first  acquired  juris- 
diction; Sharon  v.  Sharon,  79  Cal.  697,  22  Pac.  30,  holding  state  court  bound 
to  notice  proceedings  in  Federal  court  affecting  the  same  parties;  Merritt  v. 
American  Steel-Barge  Co.  24  C.  C.  A.  534,  49  U.  S.  App.  85,  79  Fed.  232,  holding 
judicial  comity  did  not  extend  to  actions  in  personam;  Guaranty  Trust  &  S.  D. 
Co.  v.  Buddington,  27  Fla.  237,  9  So.  251,  holding  proceedings  in  Federal  courts 
must  be  shown,  to  oust  state  court  of  jurisdiction ;  Hendley  v.  Clark,  8  App.  D.  C. 
184,  holding  supreme  court  of  District  of  Columbia  could  not  by  certiorari  re- 
move cause  in  which  judgment  by  justice  of  peace  had  been  rendered;  Mankato  v. 
Barber  Asphalt  Paving  Co.  73  C.  C.  A.  439,  142  Fed.  341,  on  the  priority  of  judg- 
ments of  courts  of  concurrent  jurisdiction;  Higgins  v.  Eaton,  188  Fed.  958,  hold- 
ing that  decree  of  probate  court  of  testator's  domicil  controls  distribution  of 
estate;  Hartford  F.  Ins.  Co.  v.  Ledford,  151  111.  App.  417,  holding  that  court  of 
equity  will  not  oust  court  of  law  of  its  first  acquired  jurisdiction,  unless  there 
are  defenses  unavailable  at  law;  Ferriday  v.  Middlesex  Bkg.  Co.  118  La.  790, 
43  So.  403,  holding  that  a  court  who  first  comes  into  jurisdiction  has  the  right  to 
decide  all  the  issues  of  the  case,  as  against  all  courts  of  concurrent  jurisdiction; 
Re  Southwestern  Bridge  &  Iron  Co.  133  Fed.  571;  Cochrane  v.  McDonald,  5  Cof. 
Prob.  Dec.  Anno.  237, — holding  that  the  first  court  to  acquire  jurisdiction  of  the 
parties  and  subject-matter,  has  exclusive  jurisdiction;  Cobe  v.  Ricketts,  111  Mo. 
App.  110,  85  S.  W.  131,  holding  that  a  court  possessing  jurisdiction  of  the  sub- 
ject-matter of  an  action  pending  before  it,  has  the  right  to  proceed  to  a  final 
determination  of  the  controversy  as  against  another  tribunal  of  concurrent  juris- 
diction in  which  a  similar  action  was  instituted;  Curlette  v.  Olds,  110  App.  Div. 
'ii)l.  3o  X.  Y.  Civ.  Proc.  Rep.  311,  97  N.  Y.  Supp.  144,  on  the  staying  of  action 
to  foreclose  mortgage  by  prior  action  in  Federal  court  to  cancel  same. 

(  itod  in  footnote  to  Gay  v.  Brierfield  Coal  &  I.  Co.  16  L.  R.  A.  564,  which  holds 
state  court  has  jurisdiction  of  suit  between  different  parties  to  have  declared 
fraudulent,  mortgage  foreclosed  in  Federal  court. 

Cited  in  notes  (5  L.  R.  A.  223)  on  courts  of  concurrent  jurisdiction;  the 
first  to  acquire  will  retain  it;  (42  L.  R.  A.  456)  on  pendency  of  actions  in  both 
state  and  Federal  courts  where  parties  in  one  are  parties  or  privies  to  the  other; 
(3  L.  R.  A.  191)  on  jurisdiction  once  acquired  will  be  retained  to  afford  complete 
relief;  (29  Am.  St.  Rep.  313)  on  conflicts  of  jurisdiction. 

Distinguished  in  Re  Hall  &  S.  Co.  73  Fed.  530,  holding  judicial  comity  did 
not  apply  to  actions,  one  in  equity  and  one  at  law  with  different  parties;  Sunset 
Teleph.  &  Teleg.  Co.  v.  Williams,  22  L.R.A. (N.S.)  376,  89  C.  C.  A.  281,  162  Fed. 
303,  holding  that  a  court  of  equity  will  not  entertain  a  suit  to  cancel  an  instru- 
ment, where  there  is  an  adequate  remedy  at  law. 
Federal  conrt  jurisdiction. 

Cited  in  McKee  v.  Chautauqua  Assembly,  124  Fed.  811,  holding  that  value  of 
rights  to  be  protected  is  amount  involved  for  jurisdictional  purposes  in  suit  to 
restrain  ultra  vires  action. 


1  L.R.A.  572]  L.  R.  A.  CASES  AS  AUTHORITIES.  14-2 

Injunction    by    Federal    of   state   court,    and    vice   versa. 

Cited  in  Frishman  v.  Insurance  Cos.  41  Fed.  449,  holding  proceedings  might 
be  enjoined  in  state  court  after  case  properly  removed  to  Federal  court;  Abeel 
v.  Culberson,  56  Fed.  333,  holding  proceedings  in  state  court  in  which  state 
is  a  party  might  be  enjoined  after  removal  to  Federal  court;  State  Trust  Co. 
v.  Kansas  City,  P.  &  G.  R.  Co.  110  Fed.  12,  holding  state  court  enjoined  from  de- 
termining the  very  questions  submitted  to  Federal  court  in  prior  suit;  Rodgers 
v.  Pitt,  96  Fed.  671,  holding  it  duty  of  Federal  court  with  prior  jurisdiction  to 
restrain  state  court  action;  Kessler  v.  Continental  Constr.  &  Improv.  Co.  42  Fed. 
260,  refusing  to  enjoin  state  court  from  requiring  creditors  to  present  claims 
within  certain  time,  on  dissolution  of  corporation;  Moran  v.  Sturges,  154  U.  S. 
272,  38  L.  ed.  986,  14  Sup.  Ct.  Rep.  1019,  holding  state  court  could  not  enjoin 
proceeding  in  Federal  court  with  exclusive  maritime  jurisdiction;  Guardian  Trust 
Co.  v.  Kansas  City  Southern  R.  Co.  28  L.R.A.(N.S.)  625,  96  C.  C.  A.  285,  171  Fed. 
49,  holding  that  a  court  may  enjoin  the  prosecution  in  other  courts  by  the  parties 
to  the  suit  before  it,  are  subsequent  actions,  which  will  prevent  its  effectual  de- 
termination of  the  issues,  and  the  rights  over  which  it  has  acquired  exclusive 
jurisdiction;  Central  Vermont  R.  Co.  v.  Redmond,  189  Fed.  689,  holding  that 
Federal  court  has  no  jurisdiction  to  enjoin  enforcement  of  order  of  public  service 
commission,  affirmed  by  supreme  court  of  state;  Griffith  v.  Vicksburg  Water- 
works Co.  88  Miss.  385,  40  So.  1011,  8  A.  &  E.  Ann.  Gas.  1130,  holding  that  it  is 
improper  for  a  state  court  to  issue  an  injunction  touching  a  subject-matter  in- 
volved in  a  suit  pending  in  a  Federal  court  of  competent  jurisdiction. 

Distinguished  in  Oliver  v.   Parlin  &  O.   Co.   45   C.   C.   A.   204,   105   Fed.   270, 
holding  injunction  should  not  issue  to  restrain  state  court  proceedings. 
Applicability  of  §  72O,  U.  S.  Rev.  Stat.,  U.  S.  Comp.   Stat.   19O1,  p.  581. 

Cited  in  Texas  &  P.  R.  Co.  v.  Kuteman,  4  C.  C.  A.  507,  13  U.  S.  App.  99,  54 
Fed.  551,  holding  injunction  to  restrain  bringing  of  actions  in  state  courts  not 
within  §  720,  U.  S.  Rev.  Stat.;  Wadley  v.  Blount,  65  Fed.  676,  Bowdoin  College  v. 
Merritt,  59  Fed.  7,  holding  §  720,  U.  S.  Rev.  Stat.  did  not  apply  to  action  first 
begun  in  Federal  court  with  concurrent  jurisdiction;  Lanning  v.  Osborne,  79  Fed. 
W52.  holding  §  720,  U.  S.  Rev.  Stat.  does  not  apply  to  injunction  restraining 
multiplicity  of  suits;  Iron  Mountain  R.  Co.  v.  Memphis,  37  C.  C.  A.  429,  96 
Fed.  131,  holding  §  720,  U.  S.  Rev.  Stat.  not  applicable  to  injunction  where 
Federal  jurisdiction  first  acquired;  Julian  v.  Central  Trust  Co.  193  U.  S.  112, 
48  L.  ed.  639,  24  Sup.  Ct.  Rep.  399,  upholding  power  of  Federal  court  to  restrain 
proceedings  of  state  court  defeating  or  impairing  its  jurisdiction ;Riverdale  Cotton 
Mills  v.  Alabama  &  G.  Mfg.  Co.  198  U.  S.  196,  49  L.  ed.  1015,  25  Sup.  Ct.  Rep. 
629;  Miller  v.  Rickey,  146  Fed.  587, — on  the  inapplicability  of  statute  to  injunc- 
tions for  protection  of  prior  jurisdiction;  Southern  R.  Co.  v.  Simon,  153  Fed. 
234,  holding  statute  did  not  apply  where  injunction  was  necessary  to  preserve 
rights  of  parties  in  suit  properly  before  the  court;  Glucose  Ref.  Co.  v.  Giicago, 
138  Fed.  212;  Lang  v.  Choctaw,  0.  &  G.  R.  Co.  87  C.  C.  A.  307,  160  Fed.  360,— 
holding  that  where  a  Federal  court  is  acting  to  enforce  or  protect  its  lawful 
decrees  or  titles  thereunder  it  may  restrain  all  suits  or  proceedings  in  state  courts, 
which  will  impair  or  defeat  its  jurisdiction;  Gay  v.  Hudson  River  Electric 
Power  Co.  182  Fed.  281,  holding  that  Federal  court,  having  possession  of  property 
of  corporation  in  receivership  proceedings,  may  enjoin  suit  against  corporation 
in  state  court. 
Res  jndicata. 

Cited  in  Ransom  v.  Pierre,  41  C.  C.  A.  592,  101  Fed.  672,  holding  judgment  in 
state  court  not  res  judicata. 


143  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  594 

Cited  in  footnote  to  Weir  v.  Marley,  6  L.  R.  A.  672,  which  holds  principle  of 
res  judicata  to  apply  to  custody  of  child  on  habeas  corpus. 

Cited  in  notes   (3  L.  R.  A.  142;  7  L.  R.  A.  578)   on  doctrine  of  res  judicata; 
(11  L.  R.  A.  156)   on  collusiveness  of  judgment  on  collateral  attack. 
Revivor. 

Cited  in  Frankel  v.  Satterfield,  9  Houst.  (Del.)  207,  19  Atl.  898,  holding 
scire  facias  to  revive  void  judgment  should  not  be  awarded;  Newcombe  v. 
Murray,  77  Fed.  493,  holding  representatives  of  party  interested  in  property 
must  be  made  parties  to  revivor;  King  v.  Davis,  137  Fed.  216,  on  the  revivor  of 
actions  and  pleas  thereto. 
Survival  of  actions. 

Cited  in  Borchert  v.  Borchert,  132  Wia.  598,  113  N.  W.  35,  holding  that  the  right 
to  sue  for  rescission  of  a  contract  secured  through  fraud,  and  to  recover  property 
obtained  thereunder  survives  to  the  personal  representative. 

Cited  in  footnote  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  negligent 
act  of  driver  in  running  over  person  not  assault  and  battery  within  meaning 
of  statute  providing  for  survival  of  certain  actions. 
Cancelation  of  agreements  for  fraud. 

Cited  in  Ritterhoff  v.  Puget  Sound  Nat.  Bank,  37  Wash.  85,  107  Am.  St.  Rep. 
791,  79  Pac.  601,  holding  that  a  court  of  equity  had  jurisdiction  to  cancel  a  forged 
note,  although  the  same  is  past  due,  where  one  of  the  plaintiffs  is  an  invalid,  and 
there  is  no  speedy  effective  remedy  at  law. 

1  L.  R.  A.  594,  KULEXKAMP  v.  GROFF,  71  Mich.  675,  15  Am.  St.  Rep.  283, 

40  N.  W.  57. 
Parol  evidence  as  to  written  obligation. 

Followed  in  Farmers'  Bank  v.  Wickiffe,  131  Ky.  792,  116  S.  W.  249,  holding 
that  parol  evidence  was  inadmissible  to  vary  the  terms  of  the  contract  of  a 
surety  on  notes. 

Cited  in  Hitchcock  v.  Frackelton,  116  Mich.  491,  74  N.  W.  720,  holding  indorser 
could  show,  as  between  himself  and  maker  of  note,  that  he  was  surety  and 
holder  had  notice  of  fact;  Remington  v.  Detroit  Dental  Mfg.  Co.  101  Wis.  309, 
77  X.  W.  178,  holding  liability  on  note  not  affected  by  contemporaneous  oral 
agreement;  Phelps  v.  Abbott,  114  Mich.  92,  72  N.  W.  3,  holding  note  on  its  face 
absolute  could  not  be  shown  by  parol  to  be  payable  in  full  only  on  a  contingency; 
Gumz  v.  Giegling,  108  Mich.  296,  66  N.  W.  48,  holding  indorser  before  note 
uttered  and  before  payee  indorsed  is  joint  maker,  and  cannot  show  lack  of  con- 
sideration; Mason  v.  Gage,  119  Mich.  363,  78  N.  W.  131,  holding  parol  testi- 
mony inadmissible  to  show  bond  of  indemnity  did  not  contain  whole  contract; 
Shaw  v.  Stein,  79  Mich.  81,  44  N.  _  W.  419,  holding  fraud  in  procuring 
indorsement  might  be  shown  by  parol;  McCrath  v.  Myers,  126  Mich.  213,  85 
N.  W.  712,  discussing,  without  deciding,  as  to  admissibility  of  parol  evidence 
as  to  consideration  for  mortgage;  Third  Nat.  Bank  v.  Reichert,  101  Mo.  App. 
254,  73  S.  W.  893,  holding  that  terms  of  promissory  note  cannot  be  varied  by 
contemporaneous  oral  agreement;  Rumsey  v.  Fox,  158  Mich.  254,  122  X.  W.  526. 
holding  that  a  contract  of  sale  which  is  unambiguous,  cannot  be  varied  by  parol 
evidence  of  how  the  parties  construed  it;  Milan  Bank  v.  Richmond.  -235  Mo.  539, 
139  S.  W.  352,  holding  that  sureties  on  note  cannot  prove  prior  parol  limitation 
of  liability. 

Cited  in  notes  (3  L.  R.  A.  761)  on  party  cannot  vary  or  contradict  his  con- 
tract by  parol;  ( 1  L.  R.  A.  816)  on  commercial  paper;  admissibility  of  parol 
evidence;  (13  L.  R.  A.  54)  on  exception  to  general  rule  as  to  parol  evidence 


1  L.R.A.  594]  L.  R.  A.  CASES  AS  AUTHORITIES.  144 

affecting  indorsement  on  note;  (12  L.  R,  A.  846)  on  consideration  of  commercial 
paper;  (21  Am.  St.  Rep.  348)  on  admissibility  of  parol  evidence  to  show  real 
agreement  and  relation  of  parties  to  note;  (4  Eng.  Rul.  Gas.  207)  on  parol  evi- 
dence as  to  note  or  bill  of  exchange. 

Distinguished  in  Aultman  &  T.  Co.  v.  Gorham,  87  Mich.  236,  49  N.  W.  310, 
holding  signing  by  surety  after  execution  and  before  delivery  of  note  would 
hold  him;  Johnson  v.  Bratton,  112  Mich.  323,  70  N.  W.  1021,  holding  parol 
evidence  admissible  to  show  for  what  and  for  whom  mortgage  given;  Gregory 
v.  Lake  Linden,  130  Mich.  374,  90  N.  W.  29,  holding  parol  evidence  admissible 
to  explain  doubtful  terms  in  written  contract;  Brown  v.  Smedl  ,y,  136  Mich.  68, 
98  N.  W.  856,  holding  that  as  against  the  payee  of  a  promissory  note,  parol  evi- 
dence is  admissible  to  show  a  failure  of  consideration  or  a  valid  set-off:  Acme 
Food  Co.  v.  Tousey,  148  Mich.  701,  112  N.  W.  484,  holding  that  parol  evidence 
is  admissible  to  show  that  the  contract  sued  upon  is  not  the  contract  entered 
into  by  the  parties  but  that  same  has  been  altered  by  filling  blanks. 
Promise  without  consideration. 

Cited  in  Taylor  v.  Weeks,  129  Mich.  235,  88  N.  W.  466,  holding  note  given 
without  consideration  by  widow  in  payment  of  claim  against  husband's  estate 
barred  by  statute;  National  Citizens'  Bank  v.  Bowen,  109  Minn.  478,  124  N.  W. 
241,  holding  that  where  one  of  two  or  more  joint  makers  signs  a  note  as  an 
accommodation  to  the  payee,  and  without  consideration  moving  to  him  the  payee 
cannot  recover  thereon  even  though  there  was  a  consideration  as  to  the  others. 

1  L.  R.  A.  596,  CARMICHAEL  v.  CARMICHAEL,  72  Mich.  76,  16  Am.  St.  Rep. 

528,  534,  40  N.  W.  173. 
Effect  of  oral  agreement  to  dispose  of  property  on  deatb. 

Cited  in  Whiton  v.  Whiton,  179  111.  53,  53  N.  E.  722,  Affirming  76  111.  App. 
564,  holding  will  executed  for  valuable  consideration  binding  on  one  making  it; 
Bird  v.  Jacobus,  113  Iowa,  199,  84  N.  W.  1062,  holding  agreement  to  make 
will  in  consideration  of  conveyance  of  property  good;  Whitney  v.  Hay,  15  App. 

D.  C.  184.  holding  promise  to  transfer  land  by  will  in  consideration  of  support 
enforceable;   Wright  v.  Wright,  99  Mich.   177,  23  L.  R.  A.   198,  58   N.   W.   54, 
upholding   parol    contract    disposing   of   property,    on    decease,    to    adopted    son; 
Allbright  v.  Hannah,  103  Iowa,   101,  72  N.  W.  421,  holding  agreement  that,  on 
death  of  owner,  land  should  belong  to  one  improving  it,  to  be  good;   Bruce  v. 
Moon,  57  S.  C.  73,  35  S.  E.  415,  holding  effect  of  will  made  in  consideration  of 
services  cannot  be  annulled  by  conveying  the  property;   Re  Williams.   106  Mich. 
503,  64  N.  W.  490,  holding  that  value  of  services  to  be  compensated  by  will  may 
be  recovered  against  estate  if  will  not  made;  Cann  v.  Cann,  40  W.  Va.  155,  20  S. 

E.  910,  holding  son  having  performed  services  on   agreement  for  testamentary 
reward  entitled  to  recover  for  them  from  father's  estate;  Bird  v.  Pope,  73  Mich. 
492,  41  N.  W.  514.  holding  that  part  performance  of  consideration   of  support 
gave  unrevocable  rights  in  land;  Decker  v.  Decker,  93  Iowa,  211,  61  N.  W.  921, 
holding  that  undelivered  deed  of  land  given   in  consideration  of  services  which 
have  been  partly  performed  cannot  be  cancelled:  Barker  v.  Smith,  92  Mich.  343, 
52  N.  W.  723,  holding  parol  evidence  of  declarations  of  party  to  correct  will  and 
deed  admissible;   Keagle  v.  Pessell.  91   Mich.   623.   52  N.  W.  58,   holding  mort- 
gagee's  revocation   of   will   providing   for   distribution   of   proceeds   of   mortgage 
did  not  alter  manner  of  its  payment:  Sumner  v.  Crane,  155  Mass.  486.  15  L.  R. 
A.  448,  29  N.  E.  1151,  holding  that  probate  of  valid  will  should  net  be  delayed 
although  revoking  former  will  made  to  carry  out  a  contract;  Barrett  v.  Carden, 
65  Vt.  435,  36  Am.  St.  Rep.  879,  26  Atl.  530,  holding  undertaking  not  to  contest 
will  legal;   Quinn  v.  Quinn,  5  S.  D.  336,  49  Am.   St.  Rep.   880,  58  N.  W.   808, 


14.3  L.  R.   A.  !  -\SES  AS  AUTHORITIES.  [1  L.R.A.  596 

holding  part  performance  of  parol  contract  enough  to  take  it  out  of  statute  of 
frauds;  Laird  v.  Vila,  93  Minn.  51,  106  Am.  St.  Rep.  420,  100  N.  W.  656,  holding 
that  an  executed  contract  between  husband  and  wife,  to  devise  and  bequeath 
property  to  designated  relatives  is  invalid  as  an  agreement  between  husband  and 
wife  in  regard  to  the  real  estate  but  where  such  vice  is  not  asserted  she  is  bound 
by  the  agreement. 

Distinguished  in  Allen   v.  Bromberg,   163   Ala.  623.  50  So.  884,  holding  that 
under  the  local  statute  of  frauds  an  oral  agreement  between  husband  and  wife 
to  make  mutual  wills  disposing  of  real  estate  was  void. 
Statute  of   frauds. 

Cited  in  Ruch  v.  Ruch,  159  Mich.  234,  124  N.  W.  52,  on  an  oral  contract  not  to 
dispose  of  real  property  but  to  permit  same  to  pass  to  heirs,  as  within  the  statute 
of  frauds. 
—  Enforcement  of  same. 

Cited  in  Bower  v.  Daniel,  198  Mo.  321,  95  S.  W.  347.  holding  that  a  court  of 
equity  would  enforce  the  provisions  of  the  agreement  against  a  husband  who  has 
accepted  a  life  estate  under  the  wife's  will,  and  is  attempting  to  dispose  of  it 
contrary  to  agreement;  Best  v.  Gralapp,  69  Neb.  814,  96  N.  W.  641,  5  A.  &  E. 
Ann.  Cas.  491;  Teske  v.  Dittberner,  70  Neb.  548,  113  Am.  St.  Rep.  802,  98  N.  W. 
57, — holding  an  agreement  upon  sufficient  consideration  to  devise  or  bequeath 
property  is  valid  and  enforceable,  where  provision  cannot  be  restored  to  his 
original  situation  or  compensate  him  in  damages;  Chantland  v.  Sherman,  148 
Iowa,  359,  125  N.  W.  871,  holding  that  upon  repudiation  of  agreement,  cause  of 
action  may  accrue  for  its  enforcement  by  rescission  or  recovery  of  damages; 
Spencer  v.  Spencer,  25  R.  I.  241,  55  Atl.  637,  holding  that  an  agreement  to  dis- 
pose of  property  in  a  particular  way  is  enforceable  in  equity,  if  upon  sufficient 
consideration. 

Distinguished  in  Tebbs  v.  Jarvis,  139  Iowa,  430,  116  N.  W.  708,  holding  that 
there  can  be  no  enforcement  of  agreement  to  devise,  where  the  promise  to  devise 
to  certain  persons  is  not  established;  Grindling  v.  Rehyl,  149  Mich.  644,  15  L.R.A. 
(N.S.)  471,  113  N.  W.  290,  holding  that  specific  performance  of  a  parol  contract 
to  devise  land  will  not  be  granted,  though  partially  performed,  where  the  com- 
plainant can  be  fully  compensated  in  damages;  German  v.  Camburn,  154  Mich. 
261,  117  N.  W.  641,  holding  that  agreement  was  not  enforceable  where  the  wills 
were  not  executed  in  consideration  of  each  other,  but  the  husband's  was  to 
stand  only  in  case  wife  survived  him. 
nevocability  of  mutual  wills. 

Cited  in  Baker  v.  Syfritt,  147  Iowa,  58,  125  N.  W.  998;  Frazier  v.  Patterson, 
243  111.  85,  27  L.R.A.(N.S.)  516,  90  N.  E.  216,  17  A.  &  E.  Ann.  Cas.  1003,— 
holding  that  mutual  wills  made  in  consideration  of  each  other  are  irrevocable 
after  death  of  one  party,  if  the  other  has  taken  advantage  of  the  terms  of  the 
other  will;  Prince  v.  Prince,  64  Wash.  561,  117  Pac.  255,  holding  that  widow  can- 
not revoke  mutual  will,  where  she  offered  husband's  will  for  probate  and  accepted 
benefits  of  devises  and  bequests. 

Cited  in  notes  (27  L.R.A.(N.S.)  515)  on  revocability  of  mutual  will;    (136  Am. 
St.  Rep.  598)   on  multi-will  considered  as  a  contract. 
Specific  performance. 

Cited  in  Sheehan  v.  Farwell,  135  Mich.  210,  97  N.  W.  728,  on  the  enforcement 
of  a  decree  of  redemption. 

L.R.A.  Au.  Vol.  I.— 10. 


1  L.K.A.  599]  L.  R.  A.  CASES  AS  AUTHORITIES.  146 

1  L.  R.  A.  599,  PARK  v.  DETROIT  FREE  PRESS  CO.  72  Mich.  560,  16  Am. 

St.  Rep.  544,  40  N.  W.  731. 
Discrimination  and  due  process  of  law  in  remedies. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  165,  41  L.  ed.  672,  17  Sup. 
Ct.  Rep.  255,  holding  statute  requiring  payment  of  attorney's  fee  by  railway  com- 
pany on  adverse  termination  of  action  unconstitutional,  as  deprivation  of  prop- 
erty right  without  due  process  of  law,  and  as  class  legislation;  Smith  v.  Lake 
Shore  &  M.  S.  R.  Co.  114  Mich.  485,  72  N.  W.  328,  majority  holding  mileage  book 
act  not  an  unconstitutional  invasion  of  property  rights. 

Cited  in  notes   (14  L.R.A.  586)   on  unjust  discrimination  in  violation  of  con- 
stitutional right;   (25  Am.  St.  Rep.  881)   on  14th  amendment  as  to  special  privi- 
leges, burdens  and  restrictions. 
Acts  mitigating  damages  for  retracted  libel. 

Followed  in  Hanson  v.  Krehbiel,  68  Kan.  676,  64  L.R.A.  793,  104  Am.  St.  Rep. 
422,  75  Pac.  1041,  holding  that  a  statute  unconstitutional  which  denied  the  right 
in  certain  cases  where  retroaction  was  published,  to  recover  for  injury  to  reputa- 
tion by  libel. 

Cited  in  McGee  v.  Baumgartner,  121  Mich.  291,  80  N.  W.  22,  holding  act 
prohibiting  recovery  in  libel  action  for  damage  to  reputation  unconstitutional: 
Hanson  v.  Krehbiel,  68  Kan.  676,  64  L.R.A.  793,  75  Pac.  1041,  holding  unconstitu- 
tional act  limiting  liability  for  libel  in  certain  cases;  Post  Pub.  Co.  v.  Butler,  71 
C.  C.  A.  309,  137  Fed.  727;  Comer  v.  Age  Herald  Pub.  Co.  151  Ala.  C19,  13  L.R.A. 
(N.S.)  527,  44  So.  673  (dissenting  opinion)  ;  Ellis  v.  Brockton  Pub.  Co.  198  Ma.ss. 
544,  126  Am.  St.  Rep.  454,  84  N.  E.  1018,  15  A.  &  E.  Ann.  Gas.  83,— on  the  con- 
stitutionality of  a  statute  providing  to  recovery  of  actual  damages  only  where  re- 
action has  been  published;  Osborn  v.  Leach,  135  N.  C.  638,  66  L.R.A.  653,  47  S. 
E.  811,  holding  an  act  taking  away  from  a  person  the  right  to  recover  punitive 
damages  in  case  of  libel  is  constitutional  where  it  applies  to  all  publications 
equally. 

Distinguished  in  Smedley  v.  Soule,  125  Mich.  199,  84  N.  W.  63,  holding  act 
requiring  jury  in  libel  action  to  separately  state  amounts  awarded  for  injury 
to  feelings  and  for  other  damages  constitutional ;  Allen  v.  Pioneer  Press  Co. 
40  Minn.  122,  3  L.  R.  A.  534,  12  Am.  St.  Rep.  711,  41  X.  W.  936,  holding  act 
limiting  recovery  in  libel  action  against  newspaper  publishers  to  financial  damage 
•not  unconstitutional  as  class  legislation,  nor  as  depriving  person  of  "remedy 
in  laws"  guaranteed  by  state  Constitution. 
Libel. 

Cited  in  Pfister  v.  Milwaukee  Free  Press  Co.  139  Wis.  640,  121  X.  W.  938, 
holding  that  a  false  and  defamatory  publication  concerning  a  private  citizen  is 
not  privileged  merely  because  it  relates  to  some  public  matter. 

Cited  in  notes  (9  L.  R.  A.  621)  on  libel  denned;  (3  L.  R.  A.  69)  on  libel  copied 
from  other  papers;  (13  L.R.A.  98)  on  fair  criticism  of  public  men  allowable; 
(24  L.R.A.(N.S.)  617)  on  slander  and  libel  in  charging  woman  with  unchastity; 
(15  Am.  St.  Rep.  347,  364)  on  newspaper  libel;  (116  Am.  St.  Rep.  803,  806)  on 
what  words  are  libelous  per  se. 
—  \Vben  publication  of,  privileged  as  part  of  judicial  proceedings. 

Cited  in  Metcalf  v.  Times  Pub.  Co.  20  R.  I.  677,  78  Am.  St.  Rep.  900,  40  Atl. 
$64,  holding  publication  of  unfair  extracts  from  pleading  not  justified  by  fact 
that  it  had  been  used  in  court  proceeding;  Arnold  v.  Savings  Co.  76  Mo.  App. 
182,  holding  publication  of  police  report  not  privileged;  Stuart  v.  Press  Pub. 
Co.  83  App.  Div.  476,  82  N.  Y.  Supp.  401,  holding  that  where  articles  are 
libelous  per  se,  burden  rests  upon  publisher  to  show  that  they  were  privileged; 


147  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  603 

Brown  v.  Globe  Printing  Co.  213  Mo.  636,  127  Am.  St.  Rep.  627,  112  S.  W.  462, 
holding  that  a  partial  publication  of  a  lawyer's  brief  in  a  quasi-judicial  proceed- 
ing is  not  privileged  where  only  such  parts  of  it  are  published  as  reflect  upon  his 
character:  Xixon  v.  Dispatch  Printing  Co.  101  Minn.  313,  12  L.R.A.(N.S-)  191, 
112  N.  W.  258,  11  A.  &  E.  Ann.  Cas.  161;  Meriwether  v.  Publishers:  George 
Knapp  &  Co.  211  Mo.  219,  16  L.R.A.fN.S.)  960,  109  S.  W.  750;  Byers  v.  Meridian 
Printing  Co.  84  Ohio  St.  419,  38  L.R.A.(N.S.)  918,  95  N.  E.  917;  American  Pub. 
Co.  v.  Gamble,  115  Tenn.  680,  90  S.  W.  1005, — holding  that  publication  of  mere 
pleadings  filed  in  court  upon  which  there  has  been  no  judicial  action  is  not  privi- 
leged; Ilsley  v.  Sentinel  Co.  133  Wis.  24,  126  Am.  St.  Rep.  928,  113  N.  W.  425, 
holding  that  publication  of  pleadings  and  other  preliminary  papers  to  which  the 
attention  of  no  judicial  officer  has  been  called  and  no  judicial  action  invited 
thereon  is  not  privileged  unless  made  so  by  statute. 

Cited  in  footnotes  to  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  that 
words  spoken  by  manager  of  corporation  during  trial  of  action  against  it  are 
privileged;  Billet  v.  Times-Democrat  Pub.  Co.  58  L.  R.  A.  62,  which  holds  pub- 
lication of  police  reports  not  privileged. 

Cited   in   notes    (3   L.R.A.  417)    on  matters  charged  in  judicial   pleadings  not 
actionable  libel;    (12  L.R.A.(X.S.)    188)   on  publication  of  legal  papers  in  suit, 
before  hearing,  as  privileged. 
Exemplary  damages  for  libel. 

Cited  in  Prussing  v.  Jackson,  85  111.  App.  341,  holding  that  statute  making 
notice  to  retract  a  condition  precedent  to  recovery  of  punitive  damages  in  action 
for  publication  of  libel  in  newspaper  does  not  apply  to  writer  of  article;  Osborn 
v.  Leach,  135  N.  C.  638,  47  S.  E.  811,  holding  that,  upon  defense  of  retraction, 
burden  is  on  publisher  to  show  good  faith  and  reasonable  grounds  to  believe 
libel  true,  to  escape  punitive  damages. 

Cited  in  footnote  to  Press  Pub.  Co.  v.  McDonald,  26  L.  R.  A.  531,  which  holds 
that  gross  negligence  of  newspaper  in  publishing  libel  may  justify  exemplary 
damages. 
Rig-lit  to  inspect  records  of  private  suit. 

Cited  in  Burton  v.  Reynolds,  110  Mich.  356,  68  N.  W.  217,  holding  general 
public  has  no  absolute  right  to  inspect  records  of  private  suit,  before  trial. 

1  L.  R.  A.  603,  FULMER  v.  WILLIAMS,  122  Pa.  191,  9  Am.  St.  Rep.  88,  15  Atl. 

726. 
Riparian  rights. 

Cited  in  Williams  r.  Fulmer,  151  Pa.  414.  31  W.  N.  C.  71,  31  Am.  St.  Rep. 
767,  25  Atl.  103,  holding,  on  later  appeal,  that  riparian  owner  can  recover  com- 
pensatory damages  for  depreciation  of  property  by  reason  of  diversion  of  navi- 
gable river,  with  exemplary  damages  if  malice  be  shown;  Warren  v.  Westbrook 
Mfg.  Co.  86  Me.  38,  26  L.  R.  A.  288,  29  Atl.  927,  holding  riparian  owners  upon 
stream  divided  by  island  entitled  only  to  water  naturally  flowing  in  either  chan- 
nel ;  Mills  v.  United  States,  12  L.  R.  A.  679,  46  Fed.  744,  holding  right  of  riparian 
proprietor  to  drain  fields  into  navigable  river  subject  to  public  right  to  raise  level 
of  river  in  aid  of  navigation. 

Cited  in  footnotes  to  Brooks  v.  Cedar  Brook  &  S.  C.  River  Improv.  Co.  7  L.  R.  A. 
460.  which  holds  riparian  owner  not  entitled  to  damages  for  washing  away  of 
eeil  incident  to  public  use  of  stream;  Helfenstein  v.  Reichenbach,  23  Pa.  Co.  Ct. 
71,  upholding  right  of  person  to  drive  teams  along  public  road  into  water  of 
river  to  unload  coal  barges  temporarily  moored  beyond  low-water  mark. 

Cited  in  notes  (7  L.  R.  A.  614)  on  riparian  rights;  (13  L.  R.  A.  828)  on 
equitable  rights  of  riparian  proprietors;  (41  L.  R.  A.  757)  on  what  will  give 


1  L.E.A.  603]  L.  R.  A.  CASES  AS  AUTHORITIES.  148 

right  of  action  to  riparian  proprietors;  (5  L.  R.  A.  62;  7  L.  R.  A.  722:  21  L.  R.  A. 
t>2)  on  riparian  rights  in  navigable  waters;  (12  L.  R.  A.  636)  on  qualified  prop- 
erty of  littoral  proprietors  in  water-front;  (12  L.  R.  A..  639)  on  rights  of 
riparian  owners  in  Pennsylvania;  (3  L.  R.  A.  809)  on  mill  owners;  facilities  for 
passage  of  logs;  (70  L.R.A.  275)  on  use  ef  navigable  stream;  (19  Am.  St.  Rep. 
229,  230)  on  rights  of  littoral  and  riparian  owners  in  navigable  waters;  (22  Am. 
St.  Rep.  201 )  on  title  of  riparian  owners  on  land  bounded  on  navigable  waters ; 
(25  Am.  St.  Rep.  254)  on  changing  point  of  diversion  of  water;  (27  Am.  St.  Rep, 
56)  on  waters  as  boundary  lines;  (23  Eng.  Rul.  Cas.  189)  on  ownership  of  riparian 
owner  to  thread  of  stream. 
Navigable  water*. 

Cited  in  footnote  to  Heyward  v.  Farmers'  Min.  Co.  28  L.  R.  A.  42,  which  holds 
as  test  of  navigability  of  stream  its  navigable  capacity,  not  usefulness  for  purpose 
of  commerce. 

Cited  in  notes  (5  L.  R.  A.  393;  28  L.  R.  A.  42)  on  navigable  water  courses; 
(42  L.  R.  A.  313)  on  what  waters  are  navigable;  (42  L.  R.  A.  326)  on  waters 
held  navigable  or  not  navigable  on  the  facts;  (4  L.  R.  A.  33)  on  judicial  notice 
as  to  navigable  waters;  (126  Am.  St.  Rep.  718,  719)  on  what  waters  are  navigable. 
Title  to  land  under  navigable  waters. 

Cited  in  People  v.  Silberwood,  110  Mich.  107,  32  L.  R.  A.  696,  67  N.  W.  1087.. 
holding  state  owns  land  under  waters  of  Lake  Erie,  subject  to  riparian  pro- 
prietors' right  of  navigation;  Palmer  v.  Farrell,  129  Pa.  169,  25  W.  N.  C.  30, 
15  Am.  St.  Rep.  708,  18  Atl.  761,  holding  grant  of  land  bounded  by  navigable 
river  extends  to  low-water  mark;  Freeland  v.  Pennsylvania  R.  Co.  197  Pa.  539, 
58  L.  R.  A.  212,  80  Am.  St.  Rep.  850,  47  Atl.  745,  holding  riparian  owner  has 
right  to  remove  alluvial  deposit  between  high-water  and  low-water  marks  of 
navigable  stream,  subject  to  public  rights  of  navigation,  fishery,  and  improve- 
ment; Fowler  v.  Wood,  73  Kan.  542,  6  L.R.A.(N.S.)  176,  117  Am.  St.  Rep.  534, 
85  Pac.  763,  holding  that  the  title  to  the  bed  of  a  navigable  river  is  in  the  state  i 
Edwards  v.  Woodruff,  25  Pa.  Super.  Ct.  581,  holding  that  title  to  land  under  an 
unnavigable  stream  extends  to  the  middle  of  the  stream,  but  in  a  navigable 
stream  only  to  the  ordinary  low  water  mark. 

Cited  in  footnotes  to  Webb  v.  Demopolis,  21  L.  R.  A.  62,  which  holds  title  of 
riparian  proprietor  to  lands  submerged  by  navigable  stream  to  be  determined  by 
state  laws,  though  claimed  under  Federal  grant;  Hanford  v.  St.  Paul  &  D.  R.  Co. 
7  L.  R.  A.  722,  which  holds  rights  to  submerged  lands  to  point  of  navigability 
pass,  unless  expressly  severed,  by  conveyance  of  upland;  St.  Louis,  I.  M.  &  S. 
R.  Co.  v.  Ramsey,  8  L.  R.  A.  559,  holding  title  to  lands  under  navigable  rivers, 
below  high-water  mark,  is  in  state. 

Cited  in  notes  (12  L.  R.  A.  677)  on  title  to  soil  under  navigable  water-: 
(8  L.  R.  A.  92)  on  right  of  littoral  owner  to  soil  to  low-water  mark  subject  to 
control;  (42  L.  R.  A.  174)  on  low-water  mark  as  riparian  boundary;  (8  L.  R.  A. 
559)  on  title  to  soil  below  high-tide  mark:  (16  L.  R.  A.  354)  on  ownership  of 
land  below  high-water  mark;  (42  L.  R.  A.  504)  on  effect  of  bounding  grant  on 
river  or  tide  water;  (6  L.  R.  A.  388)  on  surveys  and  meander  lines. 
Measure  of  damages  for  injury  to  land. 

Cited  in  Rabe  v.  Shoenberger  Coal  Co.  213  Pa.  256,  3  L.R.A. (N.S.)  783,  62  Atl. 
854,  5  A.  &  E.  Ann.  Cas.  216;  Weaver  v.  Berwind-White  Coal  Co.  216  Pa.  202, 
65  Atl.  545. — holding  that  when  the  injury  to  land  is  permanent  the  measure  is 
the  difference  in  market  value  before  and  after  the  injury;  Piedmont  &  G.  C.  Coal 
Co.  v.  Kearney,  114  Md.  513,  79  Atl.  1013,  holding  thus,  where  surface  fell  in 
owing  to  failure  of  mine  owner  to  leave  sufficient  supports;  Matteson  v.  New 


149  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  607 

York  C.  &  H.  R.  R.  Co.  40  Pa.  Super.  Ct.  242,  holding  that  the  measure  of  dam- 
ages for  irreparable  injury  to  land,  is  the  depreciation  in  value  of  the  property, 
otherwise  where  remedial. 
Common-law  doctrines  in  United  States. 

Cited  in  note  (22  L.  R.  A.  506)  on  limit  of  adoption  of  common  law  in  United 
States. 

1  L.  R.  A.  607,  FORD  v.  SCHOOL  DISTRICT,  121  Pa.  543,  15  Atl.  812. 
Doctrine  of  respondent  superior. 

Cited  in  notes   (8  L.R.A.  464)   on  master's  liability  for  negligence  of  servant; 
(54  Am.  St.  Rep.  92)  on  acts  of  servant  for  which  master  is  not  responsible. 
Authority  of  legislature  over  public  schools. 

Cited  in  State  ex  rel.  Clark  v.  Haworth,  122  Ind.  466,  7  L.  R.  A.  242,  23  N.  E. 
D46,  holding  authority  over  public  schools  vested  in  legislature,  which  may  pre- 
scribe books  to  be  used. 
Liabilities  of  governmental  agencies  or  employers  for  tort  or  negligence. 

Cited  in  Maia  v.  Eastern  State  Hospital,  97  Va.  511,  47  L.  R,  A.  579,  34  S.  E. 
617,  holding  public  charitable  corporation,  acting  as  agency  of  state,  not  liable 
for  officer's  torts;  Jasper  County  v.  Allman,  142  Ind.  577,  39  L.  R.  A.  62,  4* 
N.  E.  206,  holding  that  county,  being  governmental  subdivision  of  state,  is  not 
more  liable  than  state  for  tort  of  officer,  in  absence  of  statute;  Johnson  County 
v.  Reinier,  18  Ind.  App.  121,  47  N.  E.  642,  holding  county  not  liable  for  defective 
bridge,  in  absence  of  statute;  Freel  v.  Crawfordsville,  142  Ind.  30,  37  L.  R.  A. 
304,  41  N.  E.  312,  holding  school  corporation  without  funds  which  can  be  used 
to  pay  damages  not  liable  for  ojficers  negligence;  Folk  v.  Milwaukee,  108  Wis. 
363.  84  N.  W.  420,  holding  city  performing  public  duty  of  maintaining  schools 
not  liable  for  death  of  pupil  caused  by  defective  sewer;  Sproat  v.  Directors  of 
Poor,  145  Pa.  G04,  29  W.  N.  C.  463,  23  Atl.  380,  holding  directors  of  almshouse 
not  liable  for  damages  by  dog  left  on  premises  by  steward  without  their  knowl- 
edge or  acquiescence;  Lilly  v.  Scranton,  2  Lack.  Legal  News,  176,  18  Pa.  Co.  Ct. 
434.  holding  municipal  corporation  not  liable  for  acts  of  its  policemen  or  firemen; 
Peasley  v.  McKean  County,  Poor  District,  26  Pa.  Co.  Ct.  431,  holding  poor  district 
not  liable  for  negligence  of  its  physician  in  treating  inmate  of  poorhouse;  Ernst 
v.  West  Covington,  25  Ky.  L.  Rep.  1028,  63  L.  R.  A.  654,  76  S.  W.  1089,  holding 
municipality  furnishing  lot  and  building  for  use  of  school  district  not  liable  for 
injury  to  child  falling  from  unguarded  retaining  wall ;  Haggerty  v.  St.  Louis, 
K.  &  N.  W.  R.  Co.  100  Mo.  App.  443,  74  S.  W.  456,  holding  railroad  liable  for 
malpractice  of  physicians  in  treating  member  of  employees'  voluntary  relief  de- 
partment; Harris  v.  Salem  School  District.  72  N.  H.  426,  57  Atl.  332,  holding 
school  district  not  liable  for  injuries  to  pupil  due  to  improper  means  of  trans- 
porting to  school;  Brinker  v.  Northampton  County,  5  Pa.  Dist.  R.  687,  holding 
county  liable  for  per  diem  compensation  of  assessors  registering  school  children 
under  compulsory  educational  law;  James  v.  Wellston  Twp.  18  Okla.  70,  13 
L.R.A.(N.S.)  1238,  90  Pac.  100,  11  A.  &  E.  Ann.  Gas.  938,  holding  that  in  the 
absence  of  statute,  a  township  is  not  liable  for  injuries  received  because  of  de- 
fective condition  of  highways;  Hubbard  v.  Crawford  County,  221  Pa.  439,  70  Atl. 
805,  holding  that  a  county  was  not  liable  for  injuries  received  by  reason  of  unsafe 
sidewalk  leading  to  polling  place;  Ernst  v.  West  Covington,  116  Ky.  854.  63 
L.R.A.  652,  105  Am.  St.  Rep.  241,  76  S.  W.  1089,  3  A.  &  E.  Ann.  Cas.  882,  holding 
that  a  school  district  was  not  liable  for  injuries  sustained  by  reason  of  negligence 
in  the  maintenance  of  school  grounds;  Rosenblit  v.  Philadelphia,  28  Pa.  Super. 
•Ct.  594,  holding  that  a  school  district  was  not  liable  to  a  boy  injured  by  plaster 


1  L.R.A.  607]  L.  R.  A.  CASES  AS  AUTHORITIES.  150 

falling  from  the  ceiling  of  a  school  room,  though  the  school  board  had  previous 
notice  of  the  defect;  Oswald  v.  Jefferson  County,  57  Pittsb.  L.  J.  588.  holding 
county  liable  for  injury  to  traveler  from  negligence  of  officers  in  repairing  bridge. 

Cited  in  footnote  to  A'Hern  v.  Iowa  State  Agri.  Soc.  24  L.  R.  A.  655,  which 
holds  that  state  agricultural  society,  being  a  state  agency,  is  not  liable  for  tort 
of  agent. 

Cited  in  notes  (37  L.  R.  A.  301)  on  liability  of  school  corporation  to  action 
for  damages  from  negligence;  (23  L.  R,  A.  201)  on  liability  of  charitable  insti- 
tution for  negligence;  (1  L.  R.  A.  844)  on  municipal  corporations  as  agencies 
of  government;  (4  L.R.A.(N.S-)  270)  on  liability  of  state  or  municipal  eleemosy- 
nary institution  for  personal  tort  of  agent  or  servant;  (25  L.R.A.(X.S.)  90)  on 
liability  of  municipality  for  tort  in  connection  with  buildings  used  by  it. 

Distinguished  in  Briegel   v.  Philadelphia,   135  Pa.  457,  26  W.  N.   C.  253,  20 
Am.  St.  Rep.  885,  19  Atl.  1038,  holding  municipal  corporation  liable  for  nuisance 
maintained  upon  its  school  property;  Powers  v.  Philadelphia,  18  Pa.  Super.  Ct. 
625,  holding  city  liable  for  injury  to  boy,  due  to  dangerous  school  walk. 
School  district  as  quasi  corporations. 

Cited  in  Yellets  v.  West  Hempfield  Twp.  School  District,  18  Lane.  L.  Rev.  246, 
holding  school  district  to  be  quasi  municipal  corporation;  Erie  v.  School  District, 
17  Pa.  Super.  Ct.  37,  and  Pittsburg  v.  Sterrett  Subdistrict  School,  204  Pa.  645, 
61  L.  R.  A.  189,  54  Atl.  463,  holding  property  of  school  subdistricts  exempt  from 
assessment  for  local  improvements:  Christiana  Borough  School  Dist.  v.  Sadsbury 
Twp.  School  Dist.  18  Pa.  Dist.  R.  359,  25  Lane.  L.  Rev.  333,  holding  that  a  school 
district  are  quasi-corporations  for  purpose  of  administering  the  state  educational 
system;  Hughesville  Borough  School  Dist.  v.  Wolf  Twp.  School  Dist.  40  Pa.  Super. 
Ct.  316,  holding  that  a  school-board  is  a  quasi  corporation;  School  Dist.  v.  Upper 
Merion  Twp.  School  Dist.  27  Montg.  Co.  L.  Rep.  133,  holding  school  district  en- 
titled to  recover  cost  of  tuition  of  nonresident  pupils  from  school  district  from 
which  such  pupils  come. 

1  L.  R.  A.  610,  HOWARD  v.  HOWARD,  87  Ky.  616,  9  S.  W.  411. 
How  Issne  of  mental  nnsonndness  tried  in  equity  action. 

Cited  in  Small  v.  Reeves,  104  Ky.  297,  46  S.  W.  726,  and  Isle  v.  Cranby,  199 
111.  48,  64  L.  R.  A.  526,  64  N.  E.  1065,  holding  that  an  issue  of  mental  unsound- 
ness  in  an  equity  action  is  triable  by  jury  if  requested;  Edwards  v.  Edwards,  14 
Tex.  Civ.  App.  91,  36  S.  W.  1080,  holding  in  equity  action  by  next  friend,  that 
where  alleged  incompetent  disputes  want  of  mental  capacity  that  issue  is  prop- 
erly referred  to  jury  first;  Bowman  v.  Callahan,  137  Ky.  775,  127  S.  W.  142, 
holding  same. 
Transactions  of  incompetent  persons. 

Cited  in  footnotes  to  American  Trust  &  Bkg.  Co.  v.  Boone,  40  L.  R.  A.  250. 
which  holds  bank  without  knowledge  of  insanity  not  protected  in  paying  check 
of  person  adjudged  insane  in  another  state ;  Atwell  v.  Jenkins,  28  L.  R.  A.  G94. 
which  holds  third  person  cannot  avoid  contract  of  insane  person  for  whom  he 
has  advanced  money  thereon. 
Suits  by  -weak  minded  person  by  next  friend. 

Cited  in  Lindly  v.  Lindly,  102  Tex.  141,  113  S.  W.  750,  holding  that  a  court  of 
equity  will  permit  a  suit  by  the  next  friend  of  persons  who,  though  not  non 
compos  mentis,  are  so  infirm  as  to  be  incapable  of  attending  their  own  business 
without  being  appointed  legal  guardian. 

Cited  in  note  (33  Am.  St.  Rep.  265)  on  who  may  sue  for  insane  person. 


151  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  613 

Jurisdiction  of  courts  relative  to  Incompetent  persons. 

Cited  in  notes  (17  L.  R.  A.  297)  on  who  may  elect  against  will  on  behalf  of 
insane  widow;  (13  L.  R.  A.  758)  on  mental  incapacity  as  justifying  intervention 
of  court;  (64  L.  R.  A.  521,  530)  on  right  of  insane  person  to  institute  proceedings 
by  next  friend. 

1  L.  R.  A.  613,  ILLINOIS  C.  R.  CO.  v.  DECATUR,  126  111.  92,  18  N.  E.  315. 
Special   taxes   and   assessments   not   included    in   exemption   from   general 
taxation. 

Affirmed  in  147  U.  S.  190,  37  L.  ed.  132,  13  Sup.  Ct.  Rep.  293,  holding  charter 
exemption  from  taxation  not  exemption  from  special  taxes  on  contiguous  prop- 
erty for  local  improvements. 

Cited  in  Illinois  C.  R.  Co.  v.  Mattoon,  141  111.  34,  30  N.  E.  773,  and  Illinois 
C.  R.  Co.  v.  Decatur,  154  111.  176,  38  N.  E.  626,  holding  exemption  in  charter 
"from  taxation  of  every  kind"  does  not  include  special  tax  for  local  improve- 
ments; Winona  &  St.  P.  R.  Co.  v.  Watertown,  1  S.  D.  54,  44  N.  W.  1072,  holding 
that  charter  exemption  from  "all  taxation"  does  not  exempt  from  assessment  for 
local  improvement;  Adams  County  v.  Quincy,  130  111.  577,  6  L.  R.  A.  157,  22 
N.  E.  624,  holding  that  exemption  of  public  property  from  taxation  does  not 
extend  to  special  tax  for  paving  abutting  street;  Farwell  v.  Des  Moines  Brick 
Mfg.  Co.  97  Iowa,  299,  35  L.  R.  A.  69,  66  N.  W.  176,  holding  that  exemption 
from  taxation  for  "any  city  purpose"  does  not  Include  special  assessments  for 
paving. 

Cited  in  notes  (6  L.  R.  A.  155.  532)  on  exemption  from  general  taxation  not 
apply  to  local  assessments;  (35  L.  R.  A.  34)  on  liability  to  local  assessments 
for  benefits  of  property  exempt  from  general  taxation;  (12  L.  R.  A.  852)  on 
exemption  from  taxes  generally  does  not  exempt  church  property  from  special 
assessment;  (2  L.  R.  A.  149)  on  property  held  for  general  use  not  taxable. 

Distinguished  in  Re  Mt.  Vernon,  147  111.  383,  23  L.  R.  A.  810,  35  N.  E.  533, 
holding  state  property  not  subject  to  special  taxation  for  local  improvements. 
Benefits  as  basis  for  special  assessments. 

Cited  in  Chicago  &  A.  R.  Co.  v.  Joliet,  153  111.  652,  39  N.  E.  1077,  and  Chicago 
&  N.  W.  R.  Co.  v.  Elmhurst,  165  111.  152,  46  N.  E.  437,  holding  railway  subject 
to  special  taxation  for  local  improvement,  which  proceeds  on  theory  of  benefits 
to  abutting  property. 

Cited  in  note  (28  L.  R.  A.  252)  on  liability  of  railroad  right  of  way  to  assess- 
ments for  local  improvements. 

Disapproved  in  effect  in  Chicago,  M.  &  St.  P.  R.  Co.  v.  Milwaukee,  89  Wis.  517, 
28  L.  R.  A.  255,  62  N.  W.  417,  holding  that  no  benefits  accrue  to  railroad  by 
improvement  of  contiguous  street  which  will  sustain  special  assessment  therefor; 
Chicago.  R.  I.  &  P.  R.  Co.  v.  Ottumwa,  112  Iowa,  312,  51  L.  R.  A.  769,  83  N.  W. 
1074  (approved  in  dissenting  opinion),  holding  railroad  right  of  way  not  subject 
to  special  assessment  for  street  improvement,  being  taerely  an  easement  which  is 
not  benefited  thereby. 
Distinction  between  local  assessment  and  general  taxation. 

Cited  in  Warren  v.  Warren,  148  111.  652,  36  N.  E.  611.  holding  direction  in 
will  to  pay  "annual  taxes"  does  not  authorize  payment  of  special  assessment ; 
Tribbetts  v.  Huston,  171  111.  550,  63  Am.  St.  Rep.  275,  49  N.  E.  711,  Affirming 
69  111.  App.  342,  holding  special  assessment  for  permanent  improvement  increas 
ing  value  of  remainder  apportionable  between  life  tenant  and  remainderman; 
Milligan  v.  E.  R.  Darlington  Lumber  Co.  145  111  App.  521,  on  the  distinction 
between  tax  and  special  assessment. 


1  L.R.A.  613]  L.  R.  A.  CASES  AS  AUTHORITIES.  352 

Cited  in  footnote  to  Denver  v.  Rnowles,  17  L.  R.  A.  135,  which  holds  "tax"  as 
used  in  Constitution  does  not  refer  to  local  assessments. 

Cited  in  note  (23  L.  R.  A.  808)  on  distinction  between  assessment  and  taxation. 

1  L.  R.  A.  616,  COATS  v.  MERRICK  THREAD  CO.  36  Fed.  324. 
Rig-lit  of  patentee  to  name  as  trade-mark  after  patent  expired. 

Cited  in  Chadwick  v.  Covell,  151  Mass.  195,  6  L.  R.  A.  842,  footnote  p.  839. 
21  Am.  St.  Rep.  442,  23  N.  E.  1068,  holding  donee  of  formulas  and  trade-marks 
for  medicines  after  death  of  manufacturer  not  entitled  to  enjoin  subseqxient 
vendee  from  using  same;  American  Order  of  S.  C.  v.  Merrill,  151  Mass.  562, 
8  L.  R.  A.  321,  24  N.  E.  918,  holding  corporation  not  entitled  to  enjoin  another 
organization  from  adopting  a  similar  name;  Dover  Stamping  Co.  v.  Fellows,  163 
Mass.  196,  28  L.  R.  A.  450,  47  Am.  St.  Rep.  448,  40  N.  E.  105,  holding  that 
exclusive  right  to  use  of  name  given  by  patentee  to  patented  article  ceases  with 
expiration  of  patent;  Rice-Stix  Goods  Co.  v.  J.  A.  Scriven  Co.  91  C.  C.  A.  475, 
165  Fed.  645,  holding  that  upon  the  expiration  of  the  patent,  the  plaintiffs  right 
to  the  exclusive  use  of  descriptive  words,  ceased. 

Cited  in  footnotes  to  Cigar  Makers  Protective  Union  No.  98  v.  Conhaim,  3  L. 
R.  A.  125,  which  holds  device  adopted  by  association  for  use  by  any  member 
thereof  not  legal  trade-mark;  Symonds  v.  Jones,  8  L.  R.  A.  570,  which  holds 
vendee  of  trade-mark  not  entitled  to  enjoin  infringer  where  former  has  made 
misleading  use  of  right. 

Cited  in  notes  (16  L.R.A.(N.S.)  550;  1  Brit.  Rul.  Cas.  651)  on  right  on  expira- 
tion of  patent  or  copyright  to  use  of  name  b»  which  article  has  become  known. 
Rights  in  recipes  for  medicines. 

Cited  in  footnote  to  Chadwick  v.  Covell,  6  L.  R.  A.  839,  which  denies  right  of 
person  to  exclusive  use  of  recipes  made  by  himself  for  preparation  of  medicines. 

1  L.  R.  A.  618,  CARLL  v.  EMERY,  148  Mass.  32,  12  Am.  St.  R«p.  515.  18  X.  E. 

574. 
Recovery  of  property  fraudulently  conveyed. 

Cited  in  Pierce  v.  Le  Monier,  172  Mass.  512,  53  N.  E.  125,  holding  mortgage 
by  fraudulent  grantee  valid  as  between  the  parties;  Peters  Shoe  Co.  v.  Arnold,  82 
Mo.  App.  8,  upholding  usurious  mortgage  as  against  creditor  whose  interest  in 
property  arose  after  usury  was  purged;  Badaracco  v.  Badaracco,  10  N.  M.  767, 
65  Pac.  153;  McKenzie  v.  McKenzie,  29  N.  S.  243, — on  the  recovery  of  property 
conveyed  in  fraud  of  creditors. 

1  L.  R.  A.  620,  COM.  v.  BROWN,  147  Mass.  585,.  9  Am.  St.  Rep.  736,  18  N.  E.  5S7.  • 
Disqualification  of  jnror,  judue  or  like  by  interest. 

Cited  in  Com.  v.  Fletcher,  157  Mass.  16,  31  N.  E.  687,  holding  possible  dis- 
qualification of  judge  to  try  punishable  offense  committed  in  town  where  he  is 
resident  and  taxpayer  removed  by  statute;  Com.  v.  Woodward,  157  Mass.  518. 
34  Am.  St.  Rep.  302,  32  N.  E.  939,  holding  grand  juror  not  disqualified  by  per- 
sonal investigations  leading  to  opinion,  before  investigation  by  jury;  Jeffer- 
sonian  Pub.  Co.  v.  Hilliard,  105  Ala.  580,  17  So.  112,  holding  that  commis- 
sioners, disqualified  by  interest,  should  act,  in  allowance  of  claims  against  county, 
subject  to  review  by  appellate  court;  Jackson  v.  United  States,  42  C.  C.  A.  458, 
102  Fed.  478,  holding  sufficient  an  instruction  by  court  to  biased  grand  juror 
not  to  take  part  in  investigations  of,  or  vote  upon,  accused's  guilt;  Pegues  v. 
Baker,  110  Ala.  254,  17  So.  943,  holding  disqualified  a  judge  married  to  first 
cousin  of  defendant;  State  ex  rel.  Seiders  v.  Bangor,  98  Me.  130,  56  Atl.  589, 
holding  commissioner  to  determine  proportion  of  value  of  bridge  to  be  paid  by 


153  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  624 

each  of  two  cities  not  disqualified  because  taxpayer  of  one  of  them;  Hibbea  \ 
Smith,  191  U.  S.  324,  48  L.  ed.  200,  24  Sup.  Ct.  88,  holding  members  of  assessment 
board  not  disqualified  because  they  are  owners  of  properly  in  district  assessed, 
and  taxpayers;  Wilson  v.  Wapello  County,  129  Iowa,  81,  105  N.  W.  363,  6  A.  & 
E.  Ann.  Cas.  958,  holding  that  the  fact  that  a  juror  is  a  taxpayer  of  the  county, 
will  not  disqualify  him  in  an  action  against  the  county;  Broadway  Mfg.  Co.  v. 
Leavenworth  Terminal  R.  Co.  81  Kan.  618,  28  L.R.A.(N.S.)  159,  106  Pac.  1034, 
holding  that  taxpayers  in  a  municipality  against  which  the  action  is  brought  are 
disqualified  to  act  as  jurors,  when  others  may  be  obtained;  Fooshee  v.  State,  3 
Okla.  Grim.  Rep.  673,  108  Pac.  554,  holding  that  membership  in  law  and  order 
league  does  not  disqualify  person  for  grand  jury  service. 

Cited  in  footnote  to  Reed  v.  Peacock,  49  L.  R.  A.  423,  which  holds  Odd  Fellow 
qualified  to  act  as  juror  in  action  against  member  of  another  lodge. 

Cited  in  note  (28  L.  R.  A.  201)  on  qualification  of  grand  jurors. 
I r regularity    In    drawing    panel. 

Cited  in  Com.  v.  Krathofski,  171  Mass.  460,  50  N.  E.  1040,  holding  irregular 
drawing  before  name  of  disqualified  juror  returned  to  box  does  not  invalidate  the 
jury;  Sage  v.  State,  127  Ind.  18,  26  N.  E.  667,  overruling  plea  in  abatement 
based  on  failure  of  court  to  interrogate  qualified  grand  juror  as  to  qualifications; 
State  v.  Cooley,  72  Minn.  481,  71  Am.  St.  Rep.  502,  75  N.  W.  729,  overruling  the 
objection  to  indictment  that  one  member  of  grand  jury,  otherwise  qualified,  had 
served  on  jury  of  prior  year;  State  v.  Brewster,  70  Vt.  350,  42  L.  R.  A.  448,  40 
Atl.  1037,  upholding  indictment,  though  state's  attorney  was  accompanied  before 
grand  jury  by  stenographer;  State  v.  Fidler,  23  R.  I.  46,  49  Atl.  100,  holding 
jurors  not  disqualified  by  mere  irregularity  in  drawing  panel;  Com.  v.  Jordan, 
207  Mass.  269,  93  N.  E.  809,  holding  that  court  is  not  deprived  of  jurisdiction 
of  indictment  for  murder  by  removal  of  qualified  grand  juror  to  another  town  in 
county  after  being  chosen  as  juror  and  before  return  of  indictment;  State  v. 
Cambron,  20  S.  D.  284,  105  N.  W.  241,  holding  an  indictment  valid  though  found 
by  grand  jury,  members  of  which  were  drawn  irregularly,  if  they  have  the 
requisite  qualifications. 
Sufficiency  of  warning  of  town  meeting. 

Cited  in  Auburn  v.  Union  Water  Power  Co.  90  Me.  77,  37  Atl.  335,  upholding 
tax  by  town  council,  though  record  of  meeting  failed  to  show  manner  of  sum- 
moning members. 
Concurrence   of  jurors. 

Cited  in  note  (28  L.  R.  A.  35)  on  number  necessary  to  find  indictment. 
Sufficiency  of  indictment  for  forgery. 

Cited  in  State  v.  Blodgett,  143  Iowa,  582,  121  N.  W.  685,  holding  an  indictment 
for  uttering  a  false  or  forged  instrument  is  sufficient  without  alleging  an  inten- 
tion to  defraud  any  particular  person. 

1  L.  R.  A.  624,  COM.  v.  BUCKLEY,  148  Mass.  27,  18  N.  E.  577. 
Sufficiency  of   evidence  to   sustain   conviction   for  blackmailing. 

Cited  in  People  v.  Wickes,  112  App.  Div.  50,  98  N.  Y.  Supp.  163,  sustaining 
a  conviction  for  blackmailing  for  sending  letter  threatening  to  accuse  the  recip- 
ient of  crime,  with  intent  to  extort  or  gain  money. 

Cited  in  note  (116  Am.  St.  Rep.  470)  on  what  constitutes  extortion. 
Trnth  as  affecting  malice. 

Cited  in  People  v.  Whittemore,  102  Mich.  525,  61  N.  W.  13,  holding  evidence 
of  truth  of  accusation  inadmissible  on  prosecution  for  maliciously  threatening  to 
accuse  another  of  perjury. 


1  L.R.A.  625]  L.  R.  A.  CASES  AS  AUTHORITIES.  154 

1  L.  R.  A.  625,  KNOWLTON  v.  NEW  YORK  &  N.  E.  R.  CO.  147  Mass.  606,  18 

N.  E.  580. 
Independent  action  for  additional  damages. 

Followed  in  Sullivan  v.  Baxter,  150  Mass.  261,  22  N.  E.  895,  holding  special 
damages  accidentally  omitted  not  recoverable  in  subsequent  action. 

Cited  in  Bliss  v.  New  York  C.  &  H.  R.  R.  Co.  ICO  Mass.  455,  39  Am.  St.  Rep. 
504,  36  N.  E.  65,  holding  settlement  for  injury  to  clothing  before  action  does  not 
preclude  subsequent  action  for  damage  to  person;  Wheeler  Sav.  Bank  v.  Tracey, 
141  Mo.  259,  64  Am.  St.  Rep.  505,  42  S.  W.  946,  holding  mortgagee  who  inter- 
pleaded  only  as  to  accounts  in  an  attachment  of  both  goods  and  accounts  pre- 
cluded from  subsequent  proceeding  to  enforce  mortgage  against  goods;  Poraeroy 
v.  Prescott,  106  Me.  410,  138  Am.  St.  Rep.  347,  76  Atl.  898,  21  Ann.  Cas.  574, 
holding  that  recovery  for  part  of  items  of  contract  for  services  in  decorating 
auditorium  is  bar  to  action  for  remaining  items;  Morgan  v.  St.  Louis  &  S.  F.  R. 
Co.  Ill  Mo.  App.  727,  86  S.  W.  590,  holding  that  person  could  bring  action  for 
damage  to  trees,  after  an  action  for  destruction  of  fence  by  same  fire,  where  he 
was  totally  ignorant  of  the  former  when  the  latter  was  brought. 

Cited  in  note  (14  Am.  St.  Rep.  251)  on  res  judicata. 
Duty  of  railroad  company  to  guard  against  fires. 

Cited  in  footnote  to  Norfolk  &  W.  R.  Co.  v.  Fritts,  68  L.R.A.  864,  which  sus- 
tains liability  for  fire  of  railroad  company  unnecessarily  running  heavy  freight 
train  up  grade  at  double  its  scheduled  speed  in  dry  season  and  during  heavy 
wind. 

Cited  in  notes  (3  L.  R.  A.  639)  on  negligence  of  railroad  company  in  setting 
fires;  (11  L.  R.  A.  508)  on  liability  for  fire  communicated  by  defective  engine 
appliances. 

1  L.  R.  A.  628,  DIXSON  v.  GOURDIN,  29  S.  C.  343,  7  S.  E.  510. 
Statute  of  limitations;  effect  as  terminating  right  of  action. 

Followed  in  Fleming  v.  Fleming,  33  S.  C.  508,  26  Am.  St.  Rep.  694,  12  S.  E. 
257,  holding  action  on  note  barred  in  spite  of  payments  within  period  of  limita- 
tion, where  not  set  up  as  new  promises. 

Approved  in  Jacobs  v.  Gilreath,  41  S.  C.  148,  19  S.  E.  310,  permitting  amend- 
ment of  action  on  barred  note,  to  allege  new  promises  at  time  of  partial  payments 
thereon. 

Cited  in  note  (18  Am.  St.  Rep.  887)  on  presumption  of  payment  from  lapse  of 
time. 

1  L.  R.  A.  632,  ANDERSON  y.  O'DONNELL,  29  S.  C.  355,  13  Am.  St.  Rep.  728, 

7  S.  E.  523. 
Constitutionality   of  trial    without   jury. 

Followed  in  Anderson  v.  Fowler,  48  S.  C.  17,  25  S.  E.  900,  holding  trial  by 
mayor  without  jury  valid. 

Approved  in  Barnard  &  L.  Mfg.  Co.  v.  Monett  Mill.  Co.  79  Mo.  App.  156, 
holding  determination  by  circuit  court  of  liability  of  garnishee  valid  without 
jury;  Liberman  v.  State,  26  Neb.  466,  18  Am.  St.  Rep.  791,  42  N.  W.  419,  holding 
trial  by  police  judge  for  violation  of  municipal  ordinance  valid  without  jury; 
Christensen  v.  Hollingsworth,  6  Idaho,  93,  90  Am.  St.  Rep.  256,  53  Pac.  211,  hold- 
ing jury  trial  not  guaranteed  by  Constitution  in  equitable  actions. 

Cited  in  footnotes  to  Hall  v.  Armstrong,  20  L.  R.  A.  366,  which  holds  trial 
of  action  on  book  account  without  jury  valid  by  immemorial  practice;  Re  Kinsel, 
56  L.  R.  A.  475,  which  holds  trial  in  police  court  for  violation  of  ordinance  against 
keeping  bawdy  house  valid  without  jury. 


i3~'  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A    d37 

Cited  in  notes  (15  L.  R.  A.  287)  on  right  to  jury  trial  of  claim  for  damages  in 
equity;    (15  L.  R.  A.  614)  on  constitutional  right  to  jury  in  assessment  of  dam- 
ages on  default;    (16  L.  R.  A.  358)   on  statutes  allowing  plea  of  guilty  in  crim- 
inal cases. 
Ex    post    facto    laws. 

Cited  in  footnotes  to  French  v.  Deane,  24  L.  R.  A.  387,  which  holds  statute 
allowing  punitive  damages  ex  post  facto  as  to  existing  actions;  People  v.  Hayes, 
23  L.  R.  A.  830,  which  holds  amendment  striking  out  provision  for  minimum 
penalty  does  not  render  statute  ex  post  facto;  People  ex  rel.  Chandler  v.  McDon- 
ald, 29  L.  R.  A.  834.  which  upholds  statute  abrogating  provision  for  change  of 
magistrate  upon  affidavit  of  his  prejudice;  State  v.  Kyle,  56  L.  R.  A.  115,  which 
holds  statute  authorizing  prosecution  of  crimes  by  information,  retrospective  but 
not  ex  post  facto;  Ex  parte  Larkins,  11  L.  R.  A.  418.  which  upholds  law  continu- 
ing in  force  penal  law  when  crime  was  committed. 

Cited  in  notes  (3  L.R.A.  182)  on  what  are  ex  post  facto  laws;   (31  Am.  St.  Rep. 
104;  37  Am.  St.  Rep.  595)  on  ex  post  facto  laws. 
Offenses  agrainst  both   state  and  municipal  regulations. 

Approved  in  Florence  v.  Brown,  49  S.  C.  338,  26  S.  E.  880,  27  S.  E.  273,  holding 
state  dispensary  law  does  not  preclude  enforcement  of  municipal  ordinances  on 
same  subject;  Greenville  v.  Kemmis,  58  S.  C.  434,  50  L.  R.  A.  728,  36  S.  E.  1-2.1. 
holding  municipal  ordinance  penalizing  gaming  valid,  though  not  criminal  by 
state  law;  Abbeville  v.  Leopard,  61  S.  C.  106,  39  S.  E.  248,  upholding  ordinance 
against  carrying  pistol,  which  offense  is  punishable  by  state  law. 

Cited  in  McCormick  v.  Calhoun,  30  S.  C.  97,  8  S.  E.  539,  holding  provision  in 
charter  for  punishment  under  state  law  for  sale  of  liquor  does  not  prevent  im- 
position of  penalties  by  town  council  for  violation  of  ordinances  upon  same 
subject;  Taylor  v.  Sandersville,  118  Ga.  64,  44  S.  E.  845,  holding  that  a  municipal 
ordinance  is  not  void  because  it  attempts  to  punish  that  which  is  already  punish- 
able under  state  law;  State  v.  Sanders,  68  S.  C.  195,  47  S.  E.  55,  holding  that  a 
party  may  be  convicted  of  the  same  offense  by  both  a  municipal  court  and  a  court 
of  general  sessions;  Anderson  v.  Seligman,  85  S.  C.  18,  67  S.  E.  13,  holding  that 
mayor  may  try  person  charged  with  gambling  under  ordinance,  though  statute 
prescribes  that  gambler  shall  be  tried  in  court  of  general  sessions. 

Cited  in  notes  (1  L.R.A.(X.S.)  384)  on  power  of  municipality  to  legislate  on 
subjects  covered  by  state  laws:  (17  L.R.A. (N.S.)  65)  on  power  of  municipality 
to  punish  act  also  an  offense  under  state  law;  (31  L.R.A.  (N.S.)  701,  707)  on  right 
to  convict  for  state  and  municipal  offenses  growing  out  of  same  facts;  (92  Am. 
St.  Rep.  100,  102)  on  identity  of  state  and  municipal  offenses  on  plea  of  former 
jeopardy. 
Right  of  appeal  front  mnnicipal  court. 

Cited  in  Anderson  v.  Fowler,  48  S.  C.  14,  25  S.  E.  900,  holding  right  of  appeal 
to  circuit  court  from  trial  by  mayor  to  exist. 

Distinguished  in  Ex  parte  Brown,  42  S.  C.  188,  20  S.  E.  56,  holding  appeal  will 
lie  to  circuit  court  from  conviction  in  recorder's  court. 
Trial  de  novo  on  appeal  to  city  council. 

Followed  in  Anderson  v.  Fowler.  48  S.  C.  20,  25  S.  E.  900,  holding  it  unneces- 
sary to  bring  up  evidence  and  rulings  thereon  in  trial  before  mayor. 

1   L.   R.   A.   637.  CANNON  v.  LOMAX,  29   S.   C.   369,   13  Am.   St.  Rep.   739,   7 

S.  E.  529. 
Kflfeet  of  life  estate  on   partition. 

Cited  in  Chavis  v.  Chnvis.  57  S.  C.  178.  35  S-  E.  507,  holding  life  estate  might 


1  L.R.A.  637]  L.  R.  A.  CASES  AS  AUTHORITIES.  156 

postpone  partition;  McMullen  v.  Blecker,  64  W.  Va.  91,  131  Am.  St.  Rep.  894, 
60  S.  E.  1093.  on  the  right  of  a  purchaser  of  the  interest  of  some  of  the  heirs 
of  coal  in  place  leased  by  their  ancestor  as  entitled  to  partition ;  Henderson  v. 
Henderson,  136  Iowa,  569,  114  X.  W.  178,  holding  that  heirs  could  not  maintain 
partition  against  the  widow  where  she  was  a  tenant  for  life,  and  the  heirs  had 
conveyed  their  interests  to  her;  Windham  v.  Howell,  68  S.  C.  482,  47  S.  E.  715. 
holding  that  tenants  in  common  for  life,  may  have  partition,  unless  prevented  by 
incumbrance  by  grantor. 

1  L.  R.  A.  639,  PAXTON  v.  RICH,  85  Va.  378,  7  S.  E.  531. 
How  liens  barred. 

Cited  in  Jameson  v.  Rixey,  94  Va.  344,  64  Am.  St.  Rep.  726,  26  S.  E.  861, 
holding  lien  for  owelty  of  partition  exists  until  payment  presumed ;  Tunstall  v. 
Withers,  86  Va.  896,  11  S.  E.  565,  holding  that  only  lapse  of  time  from  which 
presumption  of  payment  arises  will  cut  off  vendor's  lien,  even  though  he  has 
parted  with  legal  title;  Gibson  v.  Green,  89  Va.  527,  37  Am.  St.  Rep.  888,  16  S.  E. 
661,  holding  trust  deed  to  secure  bond  not  affected  by  rendition  of  judgment  on 
the  bond. 

Cited  in  notes  (21  L.R.A.  553)  on  effect  of  statutory  bar  of  principal  debt  on 
right  to  foreclose  mortgage  or  deed  of  trust  securing  same;  (95  Am.  St.  Rep.  6fi3) 
on  effect  of  bar  of  statute  of  limitations  on  vendor's  lien;  (39  L.R.A. '  X,:v  > 
1176)  on  effect  of  barring  of  action  for  purchase  money  upon  right  to  enforce 
vendor's  lien. 
Effect  of  decree  on  pending  actions. 

Cited  in  Robinson  v.  Allen,  85  Va.  724,  8  S.  E.  835,  holding  that  pendency  of 
suit  for  settlement  of  estate,  without  decree  for  accounting,  does  not  suspend 
creditor's  suit  where  objects  not  same;  Southall  v.  Farish,  85  Va.  409,  1  L.  R.  A. 
644,  7  S.  E.  534,  asserting  that  where  all  parties  are  before  court,  decree  will  be 
made  against  party  ultimately  liable  on  judgments;  Witz  v.  Mullin,  90  Va.  807. 
20  S.  E.  783,  holding  that  equity  will  not  take  cognizance  of  a  claim  for  damages 
from  breach  of  contract,  in  action  to  administer  trust  deed. 
Surety's  equity  in  estate  of  deceased  debtor. 

Cited  in  note  (117  Am.  St.  Rep.  39)  on  right  of  surety  to  compel  payment 
out  of  principal's  estate. 

Distinguished  in  Bingham  v.  Mears,  4  N.  D.  451,  27  L.  R.  A.  263.  61  N.  W.  808, 
holding  sureties  on  undertaking  on  appeal  liable  notwithstanding  failure  of  plain- 
tiff to  resort  in  first  instance  to  collateral  held  by  him. 

1  L.  R,  A.  641,  SOUTHALL  v.  FARISH,  85  Va.  403,  7  S.  E.  534. 
Subrogation  of  surety  on  payment. 

Cited  in  Price  v.  Horton,  4  Tex.  Civ.  App.  527,  23  S.  W.  501,  holding  that 
surety,  upon  discharging  obligation,  can  recover  from  principal  only  amount 
paid;  Opp  v.  Ward,  125  Ind.  243,  21  Am.  St.  Rep.  220,  24  X.  E.  974,  holding 
surety  on  appeal  bond  from  judgment  for  rent  liable  to  guarantor  of  rent  paying 
judgment. 

Annotation  cited  in  State  ex  rel.  Moore  v.  Perkins,  114  La,  306,  38  So.  196, 
holding  that  the  surety  who  pays  the  amount  called  for  in  the  bond,  does  not 
become  subrogated  to  the  right  of  the  creditor  to  the  prejudice  of  balance  due 
the  latter. 

Cited  in  footnote  to  Everson  v.  McMullen,  4  L.  R.  A.  119,  which  holds  claimant 
of  dower  should  contribute  to  payment  of  mortgage  debt  discharged  by  purchaser 
of  equity  not  bound  to  its  payment. 


157  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  645 

Cited  in  notes  (9  L.R.A.  227)  on  subrogation  of  surety  on  payment  of  claim; 
(68  L.R.A.  514)   on  extinction  of  judgments  against  principals  by  sureties'  pay- 
ment;  (21  Eng.  Rul.  Cas.  615)  on  subrogation  of  surety  paying  debt. 
Primary   liability   of   surety. 

Cited  in  Manson  v.  Rawling,  112  Va.  388,  71  S.  E.  564,  holding  that  creditor 
can  resort  to  surety  before  exhausting  remedies  against  principal. 
Necessity    of    pleading:    fraud. 

Cited  in  Millhiser  v.  McKinley,  98  Va.  213,  35  S.  E.  446;  Alsop  v.  Catlett,  97 
Va.  370,  34  S.  E.  93;  Virginia  F.  &  M.  Ins.  Co.  v.  Cottrell,  85  Va.  864,  17  Am. 
St.  Rep.  108,  9  S.  E.  132,  —  holding  evidence  of  fraud  admissible  only  when 
pleaded;  United  States  v.  Barber  Lumber  Co.  172  Fed.  950,  holding  that  in  an 
action  to  set  aside  a  conveyance  on  the  ground  of  fraud,  the  bill  must  show 
specifically  and  in  detail  in  what  the  fraud  consists,  and  how  effected;  McClinton 
v.  Chapin,  54  Fla.  518,  45  So.  35,  14  A.  &  E.  Ann.  Cas.  365,  holding  that  an 
allegation  of  fraud  in  general  terms  without  stating  facts  constituting  it  is 
insufficient;  Virginia  Pass.  &  Power  Co.  v.  Fisher,  104  Va.  132,  51  S.  E.  198, 
holding  it  necessary  that  the  facts  out  of  which  the  fraud  arises  be  alleged  as 
well  as  proved  in  order  to  justify  relief  on  ground  of  fraud. 

Cited  in  footnote  to  Haughn  v.  State,  59  L.R.A.  789,  which  requires  facts  con- 
stituting fraud  and  duress  to  be  set  out  in  indictment  for  "bunco  steering." 

1  L.  R.  A.  645,  CAMPBELL  PRINTING  PRESS  CO.  v.  THORP,  36  Fed.  414. 
Satisfactory   performance    of   agreement. 

Cited  in  Electric  Lighting  Co.  v.  Elder  Bros.  115  Ala.  152,  21  So.  983,  holding 
that  dissatisfaction  with  well  had  reference  only  to  its  completion  according  to 
agreement;  Gwynne  v.  Hitchner,  66  N.  J.  L.  101,  48  Atl.  571,  holding  employer 
could  determine  whether  employee's  work  was  satisfactory;  Sax  v.  Detroit,  G.  H. 
&  M.  R.  Co.  125  Mich.  256,  84  Am.  St.. Rep.  572,  84  N.  W.  314,  holding  brake- 
man,  upon  dismissal,  could  not  recover  for  services  under  contract  to  work  per- 
manently if  services  satisfactory ;  Blaine  v.  Publishers.  George  Knapp  &  Co.  140 
Mo.  251,  41  S.  W.  787,  holding  that  party  could  not  recover  increased  compensa- 
tion for  services  under  contract  in  which  increase  depended  solely  on  employer; 
Mullally  v.  Greenwood,  127  Mo.  147,  48  Am.  St.  Rep.  613,  29  S.  W.  1001,  denying 
right  of  one  agreeing  to  pay  commissions  for  procuring  "satisfactory  lease"  of 
property  to  arbitrarily  refuse  to  accept  lease  negotiated;  American  Electric 
Constr.  Co.  v.  Consumers'  Gas  Co.  47  Fed.  45,  30  W.  N.  C.  225,  holding  verbal 
contemporaneous  agreement  to  give  satisfactory  bond  inadmissible  to  vary  writ- 
ten agreement  to  construct  electric  light  plant;  Watkins  v.  Napier,  44  Tex.  Civ. 
App.  435,  98  S.  W.  904,  on  the  right  of  the  employer  to  terminate  contract  for 
hire,  because  of  dissatisfaction  with  work,  under  clause  providing  therefor. 

Cited  in  note  (12  L.R.A.(N.S.)  404,  407,  409,  412)  on  termination  of  contracts 
of  employment  which  permit  rescission  by  dissatisfied  employer. 

Distinguished  in  Young  Bros.-  Mach.  Co.  v.  Young,  111  Mich.  121,  69  N.  W. 
152,   holding  party  having  had   benefit  of  part   performance  of  contract  cannot 
make  full  performance  condition  precedent  to  liability. 
Sale  upon  approval. 

Cited  in  Buckley  v.  Meidroth,  93  111.  App.  462,  holding  that  purchaser  on  ac- 
ceptance and  approval,  title  remaining  in  seller,  need  not  pay  if  article  unsat- 
isfactory; Re  Geo-ge  M.  Hill  Co.  59  C.  C.  A.  356,  123  Fed.  868,  holding  title  of 
seller  of  machine  on  approval  not  devested  where  buyer  continued  to  refuse  ac- 
ceptance, and  his  bankruptcy  intervened;  McCormick  v.  Finch,  100  Mo.  App.  646, 
75  S.  W.  373,  holding  sale  of  corn  binder  on  approval  defeated  where  not  satis- 
factory to  buyer,  who  offered  to  return  it;  Haney-Campbell  Co.  v.  Preston  Cream- 


1  L.K.A.  645]  L.  R.  A.  CASES  AS  AUTHORITIES.  158 

«ry  Asso.  119  Iowa,  193,  93  N.  W.  297,  holding  that,  in  sale  on  approval,  fair 
and  honest  objection  is  all  that  is  required  of  buyer  to  defeat  sale;  Thurman  v. 
Omaha,  64  Neb.  493,  90  N.  W.  253,  holding,  where  purchase  is  subject  to  attor- 
ney's opinion  as  to  title,  merits  of  honest  opinion  thereon  not  assailable;  Ron- 
dinella  v.  Southern  R.  Co.  33  App.  D.  C.  79;  Haney-Campbell  Co.  v.  Preston 
Creamery  Asso.  119  Iowa,  393.  93  N.  W.  297, — holding  that  an  agreement  in 
contract  of  sale,  whereby  the  purchaser  is  to  be  satisfied  before  the  machine  is 
accepted,  is  valid;  Livesley  v.  Johnston,  45  Or.  45,  65  L.R.A.  787,  106  Am.  St. 
Rep.  647,  76  Pac.  946,  holding  a  contract  of  sale  giving  one  of  the  parties  the 
right  to  determine  whether  the  property  sold,  is  valid  and  binding  upon  both. 

Cited  in  notes    (17  L.  R.  A.  209)    on  right  of  purchaser  to  reject  and  return 
article  as  unsatisfactory;   (12  L.  R.  A.  399)  on  effect  of  acceptance  of  goods  under 
contract  of  sale;    (6  L.  R.  A.  789)    on  sales  and  contracts  to  manufacture,  dis- 
tinguished. 
Recoupment  of  damages  against  price. 

Cited  in  Mulcahy  v.  Dieudonne,  103  Minn.  358,  115  N.  W.  636,  holding  that  one 
to  whom  goods  are  sold  on  approval  cannot  retain  them  and  recover  damages  m 
an  action  for  the  purchasa  price. 
Implied  warranty  in  sales. 

Cited  in  notes  (17  L.  R.  A.  211)  on  implied  warranty  of  fitness  for  purpose 
intended  in  contracts  of  purchase  and  sale;  (17  L.  R.  A.  208)  on  contract,  promise 
to  give  full  satisfaction;  subject  to  judgment  of  promisee  in  contracts  of  pur- 
chase and  sale;  (6  L.  R.  A.  375)  on  implied  warranty;  (6  L.  R.  A.  392)  on  im- 
plied warranty  in  sale  by  manufacturer. 

1  L.  R.  A.  648,  HOPPS  v.  SAVAGE,  69  Md.  513,  16  Atl.  133. 
Indorsement   of  negotiable   instrument. 

Cited  in  footnote  to  Witty  v.  Michigan  Mut.  L.  Ins.  Co.  8  L.  R.  A.  365,  which 
holds  note  with  blanks  in  body  negotiable. 

Cited  in  notes  (1  L.  R.  A.  712)  on  effect  of  blank  indorsement;  (7  L.  R.  A. 
209)  on  acceptance  of  bill  of  exchange  or  draft. 

1  L.  R.  A.  650,  WEYAND  v.  ATCHISON,  T.  &  S.  F.  R.  CO.  75  'Iowa,  573,  9 

Am.  St.  Rep.  504.  39  N.  W.  899. 
Liability  of  carrier  for  delivery  to  wrong  person. 

Cited  in  Ratzer  v.  Burlington,  C.  R.  &  X.  R.  Co.  64  Minn.  248,  58  Am.  St.  Rep. 
530,  66  N.  W.  988,  holding  railway  liable  to  holder  of  bill  of  lading  for  delivery 
of  goods  to  shipper;  Union  P.  R.  Co.  v.  Johnson,  45  Neb.  65,  50  Am.  St.  Rep. 
540,  63  N.  W.  144,  holding  carrier  liable  to  holder  of  bill  of  lading  for  delivery 
at  point  intermediate  that  of  consignment;  Gates  v.  Chicago,  B.  &  Q.  R.  Co.  42 
Neb.  388,  60  N.  W.  583,  holding  carrier  not  liable  for  delivery  upon  order  of 
consignee;  Clegg  v.  Southern  R.  Co.  135  N.  C.  155,  65  L.R.A.  721,  47  S.  E.  667 
(dissenting  opinion),  on  liability  of  carrier  'for  wrongful  delivery  of  goods; 
Sword  v.  Young,  89  Tenn.  130,  14  S.  W.  604.  holding  carrier  liable  to  consignor 
for  value  of  goods  negligently  delivered  to  fraudulent  purchaser. 

Cited  in  footnote  to  Illinois  C.  R.  Co.  v.  Carter,  36  L.  R.  A.  527,  holding  carrier 
not  liable  for  misdelivery  by  agent  of  connecting  line  after  delivery  at  destination. 

Cited  in  notes  (38  L.R.A.  303)  on  indorsement  being  required  on  bill  of  lading 
when  delivery  made;   (24  Am.  St.  Rep.  816)  on  conversion  by  carrier  by  delivery 
of  freight  to  person  not  entitled  thereto. 
To  person  presenting  bill  of  Inding  or  skipping  receipt. 

Cited  in  Adrian  Knitting  Co.  v.  Wabash  R.  Co.  145  Mich.  326,  108  N.  W.  706. 


159  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  655 

holding  that  a  carrier  was  liable  for  misdelivery  of  goods  to  person  obtaining 
shipping  receipt  fraudulently,  where  the  custom  to  delivery  upon  presentation  of 
the  receipt  was  not  known  to  consignor;  Florence  &  C.  C.  R.  Co.  v.  Jensen,  48 
Colo.  33,  108  Pac.  974,  holding  carrier  liable  to  consignor  for  delivery  of  freight 
to  stranger  on  surrender  of  unindorsed  bill  of  lading. 
Bill  of  lading:  as  instrument  of  rig-lit  or  title. 

Cited  in  Anchor  Mill  Co.  v.  Burlington,  C.  R.  &  N.  R.  Co.  102  Iowa,  266,  71 
N.  W.  255,  holding  that  purchaser  of  load  of  wheat  prior  to  assignment  of  bill 
of  lading  acquired  title  as  against  assignee;  First  Nat.  Bank  v.  Mt.  Pleasant  Mill. 
Co.  103  Iowa,  520,  72  N.  W.  689,  holding  that  purchaser  of  draft  with  assign- 
ment of  bill  of  lading  acquires  superior  title  to  subsequent  attaching  creditor; 
ScharfT  v.  Meyer,  133  Mo.  448,  54  Am.  St.  Rep.  672,  34  S.  W.  858,  holding  that 
assignees  of  bill  of  lading  had  title  to  goods  attached  in  transit  as  consignor's; 
W.  &  A.  McArthur  Co.  v.  Old  Second  Xat.  Bank,  122  Mich.  226,  81  N.  W.  92, 
holding  that  draft  with  bill  of  lading  attached  consigning  goods  to  shipper  shows 
there  was  no  intention  to  extend  credit;  Schlichting  v.  Chicago,  R.  I.  &  P.  R.  Co. 
121  Io\va,  505,  96  X.  W.  959,  holding  carrier  justified  in  refusing  to  deliver  goods 
without  production  of  bill  of  lading;  Clegg  v.  Southern  R.  Co.  135  N.  C.  155,  65 
L.  R.  A.  721,  47  S.  E.  667  (dissenting  opinion),  majority  denying  carrier's  right 
to  avoid  payment  of  damages  for  wrongful  refusal  to  deliver  goods,  by  showing 
owner  did  not  have  bill  of  lading. 
Prior  adjudication  as  bar. 

Cited  in  Lemon  v.  Sigourney  Sav.  Bank,  131  Iowa.  86,  108  N.  W.  104,  holding 
a  finding  in  an  action  against  a  bank  for  the  amount  of  a  deposit,  that  the  sum 
had  been  paid  in  notes  of  third  party  payable  to  depositor,  is  not  a  bar  to  an 
action  to  collect  proceeds  of  these  notes  collected  by  it. 
Effect  of  general  custom  as  to  freight. 

Cited  in  footnote  to  Pennsylvania  R.  Co.  v.  Naive,  64  L.R.A.  443,  which  holds 
carrier  not  negligent  in  failing  to  notify  consignee  of  arrival  of  perishable  goods 
on  legal  holiday  on  which  by  general  custom  of  locality  all  business  is  suspended. 

1  L.  R.  A.  653,  BRANDT  v.  ALLEN,  76  Iowa,  50,  40  N.  W.  82. 
Summary   proceedings  to  obtain  assets. 

Cited  in  Miles  v.  New  South  Bldg.  &  L.  Asso.  95  Fed.  921,  holding  that  sum- 
mary proceeding  by  receiver  of  corporation  for  order  to  put  him  in  possession 
of  securities  not  against  due  process. 

1  L.  R.  A.  655,  OSGOOD  v.  BAUDER,  75  Iowa,  550,  39  N.  W.  887. 
Place  of  contract. 

Cited  in  Hart  v.  Livermore  Foundry  &  Mach.  Co.  72  Miss.  829,  17  So.  769,  hold- 
ing contract  entered  into  in  one  state  presumed  to  be  entered  into  with  reference 
to  law  of  place  of  performance,  and  referring  particularly  to  annotation  in  1 
L.  R.  A.  C).15. 

Cited  in  footnote  to  Robinson  v.  Queen,  3  L.  R.  A.  214,  which  holds  married 
woman's  note,  valid  in  state  where  made  and  payable,  enforceable  in  another  state 
in  which  it  would  have  been  void. 

Cited  in  notes    (3  L.   R.   A.   524;    8   L.   R.   A.    170)    on   contract  governed  by 
lex  loci  contractus;   (13  L.R.A.  462)  on  when  lex  loci  governs  contract;   (55  Am. 
St.  Rep.  49)  on  place  of  contract. 
Wagering  contract. 

Reaffirmed  on  later  appeal  in  82  Iowa,  174,  47  N.  W.  1001,  holding  option  to 
buy  specified  amount  of  coal  on  terms  allowed  for  coal  actually  bought,  void. 


1  L.R.A.  655]  L.  R.  A.  CASES  AS  AUTHORITIES.  160 

Cited  in  Schneider  v.  Turner.  130  111.  41,  6  L.  R.  A.  1G7,  22  X.  E.  497,  holding 
agreement  for  refusal  of  privilege  to  purchase  shares  a  wagering  contract  under 
statute;  Peoples'  Sav.  Bank  v.  Gifford,  108  Iowa,  279,  79  N.  W.  63,  holding  note 
given  for  gambling  contract  in  options  void;  Press  v.  Duncan,  100  Iowa,  356, 
€9  N.  W.  543,  holding  that  decision  of  court  that  note  given  for  gambling  con- 
tract was  void  should  not  be  disturbed;  Hoffmann  v.  Farmers'  Co-op.  Shipping 
Asso.  78  Kan.  568,  97  Pac.  440,  on  what  constitutes  a  wagering  contract. 

Cited  in  footnotes  to  Cashman  v.  Root,  12  L.  R.  A.  511,  which  holds  invalid  pur- 
chase of  stock  on  margin  to  receive  or  pay  difference  between  buying  and  selling 
value;  Booth  v.  People,  50  L.  R.  A.  762,  which  holds  statute  against  options 
not  invalid;  Baxter  v.  Deneen,  64  L.R.A.  949,  which  holds  that  broker  with  whom 
margins  have  been  deposited  in  a  stock  gambling  transaction  will  not  be  en- 
joined from  violating  agreement  to  keep  them  on  deposit  in  a  specified  bank 
until  the  transaction  is  closed;  Scales  v.  State,  66  L.R.A.  730,  which  holds 
wagering  contract  in  futures  not  shown  by  fact  that  purchaser  intended  to  sell 
his  contract  before  time  for  performance  arrived  unless  noncontemplation  of 
actual  performance  of  obligation  by  other  party  is  also  shown. 

Cited  in  notes    (12  L.  R.  A.   121)    on  gambling  contracts  not  binding;    (64  L. 
R.  A.   165)    on  conflict  of  laws  as  to  gambling  and  lottery  tickets. 
.•Separable  contract  or  salea. 

Reaffirmed  on  later  appeal  in  82  Iowa,  174,  47  N.  W.  1001,  holding  contract 
for  purchase  of  specified  amount  of  coal  at  fixed  price,  with  option  for  additional 
amount  on  same  terms,  separable. 

Cited  in  Stewart  v.  Pierce,  116  Iowa,  749,  89  N.  W.  234,  holding  valid  pro- 
vision of  separable  contract  enforceable;  Grieve  v.  Illinois  C.  R.  Co.  104  Iowa, 
663,  74  N.  W.  192,  holding  shipper  of  stock  can  insist  on  enforcement  of  valid 
condition  in  his  agreement  separable  from  those  invalid;  Corcoran  v.  Lehigh  &  F. 
•Coal  Co.  138  HI.  397,  28  N.  E.  759,  holding  contract  void  in  part  only  separable; 
Rock  Island  Sash  &  Door  Works  v.  Moore,  Handley  Hardware  Co.  147  Ala.  589, 
•41  So.  806,  holding  a  contract  to  furnish  one  car  of  sash,  with  privilege  of  three 
•cars  at  the  same  price,  to  be  furnished  at  a  certain  time  was  a  separate  contract; 
People  ex  rel.  Oglevee  v.  Smith,  130  111.  App.  413,  on  what  constitutes  a  separable 
contract;  Iowa  Brick  Mfg.  Co.  v.  Herrick,  126  Iowa,  723,  102  N.  W.  787,  holding 
a  contract  to  furnish  brick  for  paving  purposes,  to  be  paid  for  monthly  for  those 
furnished  during  the  month  is  a  separable  contract,  and  failure  to  pay  an  in- 
stalment will  not  release  seller;  Livingston  v.  Chicago  &  N.  W.  R.  Co.  142  Iowa, 
411,  120  N.  W.  1040,  holding  that  where  parts  of  a  separable  contract  are  illegal 
it  does  not  affect  the  validity  of  the  legal  conditions. 
Rescission  of  contract. 

Cited  in  Quarton  v.  American  Law  Book  Co.  143  Iowa,  529,  32  L.R.A.  (X.S.)  14, 
121  N.  W.  1009,  holding  that  seller  of  books  on  instalment  plan  can  rescind  con- 
iract  for  failure  of  buyer  to  pay  instalments  under  circumstances  showing  aban- 
donment of  contract;  Bamberger  Bros.  v.  Burrows,  145  Iowa,  451,  124  N.  W.  333, 
holding  that  failure  to  make  timely  delivery  of  part  of  clothing  ordered  authorizes 
rescission,  where  contract  is  indivisible  and  time  is  of  essence  thereof. 

Cited  in  footnote  to  Rappleye  v.  Racine  Seeder  Co.  7  L.  R.  A.  139,  which  holds 
.contract  of  sale  rescinded  on  purchaser's  insolvency  before  delivery. 

Cited  in  note  (30  L.  R.  A.  71)  on  what  will  warrant  rescission  of  contract. 
For  failure  to  pay  as  delivered. 

Cited  in  Quarton  v.  American  Law  Book  Co.  143  Iowa,  529,  121  N.  W.  1009, 
holding  that  failure  to  pay  for  instalments  delivered  will  not  authorize  a  repudi- 
ation of  the  contract  by  the  seller,  unless  accompanied  by  circumstances  which 


161  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  659 

*how  the  buyer  intends  to  renounce  the  contract;  Tuttle  v.  Chapman  Coal  Co. 
136  Iowa,  384,  113  N.  W.  827,  holding  that  failure  to  pay  for  the  coal  delivered 
by  instalments,  does  warrant  rescission  unless  the  breach  goes  to  the  entire 
consideration;  Tilton  v.  J.  L.  Gates  Land  Co.  140  Wis.  207,  121  N.  W.  331,  hold- 
ing that  the  mere  failure  to  pay  instalments  relieved  the  plaintiffs  from  continu- 
ing to  perform  the  contract  on  their  part. 
Measure  of  damages  for  breach  of  contract. 

Cited  in  James  H.  Rice  Co.  v.  Pennsylvania  Plate  Glass  Co.  88  111.  App.  412, 
folding  measure  of  damages  for  goods  manufactured  and  ready  for  delivery  is 
difference  between  contract  and  market  price;  T.  B.  Scott  Lumber  Co.  v.  Hafner- 
Lothman  Mfg.  Co.  91  Wis.  673,  65  N.  W.  513,  holding  measure  of  damages  for 
breach  of  contract  of  sale  is  difference  between  contract  and  market  price  at 
time  of  breach;  Hamilton  v.  Finnegan,  117  Iowa,  629.  91  N.  W.  1039,  holding 
difference  between  market  and  contract  price,  only,  at  time  of  delivery,  recover- 
able by  seller  of  stock  upon  refusal  of  buyer  to  take;  Tuttle  v.  Chapman  Coal 
Co.  136  Iowa.  385,  113  X.  W.  827,  holding  that  the  measure  of  damages  for  breach 
of  executory  contract  of  sale  is  the  difference  between  the  contract  price  and  the 
market  price  at  the  time  and  place  of  delivery  as  provided  in  the  contract. 

Cited  in  note   (6  L.  R.  A.  552)   on  measure  of  damages  for  breach  of  contract. 

1  L.  R.  A.  659,  NEWMAN  v.  COVENANT  HUT.  BEN.  ASSO.  76  Iowa,  56,  14 

Am.  St.  Rep.  196,  40  N.  W.  87. 
Amendment  to  pleading's. 

Cited  in  P.  Cox  Stove  Co.  v.  Adams,  105  Iowa,  410,  75  N.  W.  316,  holding  re- 
plevin changeable  to  action  in  equity;  Daly  v.  Simonson,  126  Iowa,  719,  102  N. 
W.  780,  holding  that  the  court  in  its  discretion  may  allow  amendments  to  plead- 
ings of  matters  previously  pleaded;  Hanson  v.  Cline,  142  Iowa,  189,  118  N.  W. 
754,  holding  that  amendment  of  pleadings  should  be  allowed  where  substantial 
rights  are  not  thereby  prejudiced,  and  amendments  should  not  be  stricken  out 
where  the  amendments  are  allowable  though  made  without  consent;  Finlayson 
v.  Peterson,  11  N.  D.  50,  89  N.  W.  855,  holding  an  amendment  to  complaint 
proper  though  the  latter  changed  the  relief  asked  for  but  which  was  more  ad- 
vantageous to  the  defendant. 

Distinguished  in  Lough  v.  Estherville,   122  Iowa,  482,  98  N.  W.  308,  holding 
relief  confined  to  that  afforded  by  law  where  equity  action,  changed  by  amend- 
ment into  suit  at  law,  is  tried  in  equity  court. 
l':i  i  I  nrc  of  beneficiary. 

Cited  in  Schmidt  v.  Northern  Life  Asso.  112  Iowa,  49,  51  L.  R.  A.  145,  84  Am. 
St.  Rep.  323,  83  N.  W.  800,  holding  benefits  of  policy  revert  to  estate  of  insured, 
murdered  by  wife,  as  beneficiary;  Chicago  Guaranty  Fund  Life  Soc.  v.  Wheeler, 
79  111.  App.  244,  holding  policy  payable  to  "widow,  orphan,  heir,  or  legatee"  in 
order  named  in  mutual  benefit  charter  and  by-laws;  Mullen  v.  Woodmen  of  the 
World,  144  Iowa,  231,  122  N.  W.  903,  holding  that  fraternal  benefit  association 
cannot  avoid-  liability  by  showing  that  beneficiary  is  not  within  any  of  classes 
designated  by  law. 

Cited  in  note  (17  L.R.A.(N.S.)   1086)  on  disposition  of  fund  in  benefit  society 
upon  failure  of  beneficiary. 
Waiver    of    right    to    forfeit. 

Cited  in  Northwestern  Masonic  Aid  Asso.  v.  Bodurtha,  23  Ind.  App.  127,  77 

Am.   St.  Rep.  414,  53  N.  E.  787,  holding  agent's  acceptance  of  premiums  with 

knowledge  of  insured's  violation  of  policy,  waiver;  German- American  Ins.  Co.  v. 

Teagley,  163  Ind.  660,  71  N.  E.  897,  2  A.  &  E.  Ann.  Gas.  275,  holding  that  the 

L.R.A.  Au.  Vol.  I.— 11. 


1  L.R.A.  659]  L.  R.  A.  CASES  AS  AUTHORITIES.  162 

right  to  enforce  forfeiture  clause  was  waived  by  the  agent  issuing  the  policy  and 
accepting  the  premium  with  notice  of  the  breach;  Modern  Woodmen  v.  Brecken- 
ridge,  76  Kan.  375,  10  L.R.A.(X.S.)  138,  89  Pac.  661,  12  A.  &  E.  Ann.  Cas.  636, 
holding  a  subordinate  lodge  of  a  mutual  benefit  association  waives  the  right  of 
the  association  to  enforce  forfeiture  clause,  provided  for  in  the  certificate,  by 
receiving  duties  with  knowledge  of  the  breach  of  the  clause;  Kirkpatrick  v.  Lon- 
don Guarantee  &  Acci.  Co.  139  Iowa,  376,  19  L.R.A.(N.S.)  105,  115  N.  W.  1107, 
on  the  waiver  of  right  to  forfeiture  of  policy  by  company  giving  effect  to  policy 
with  notice  of  breach  of  condition. 

Cited   in   notes    (15  L.R.A.(N.S.)    212)    on   waiver   of   provisions   in   insurance 
policies  forbidding  use  of  intoxicants;    (16  L.R.A. (N.S.)   1220)   on  agent's  knowl- 
edge of  facts  avoiding  policy  as  waiver  of  right  of  forfeiture. 
Forfeiture  and  exception  clauses  covering  same  cause. 

Followed  in  Lowenstein  v.  Franklin  L.  Ins.  Co.  122  111.  App.  635,  holding  that 
though  an  insurance  company  had  waived  its  right  to  cancel  a  policy  because 
of  breach  of  clause  against  intemperate  use  of  intoxicating  liquors,  they  have  the 
right  to  defend  against  an  action  on  the  ground  that  the  insured  died  from  effects 
of  intoxication. 

Cited  in  Busing  v.  Modern  Woodmen,   151   111.  App.  55,  holding  that   waiver 
of  defense   of  excessive  use  of  intoxicating  liquors   does  not   waive   defense   of 
death  of  insured  from  his  intemperate  use  of  intoxicating  liquors. 
Itnrden  of  proving  noncompliance  with  terms  of  policy. 

Cited  in  Sutherland  v.  Standard  Life  &  Acci.  Ins.  Co.  87  Iowa.  509,  54  N.  W. 
453,  holding  noncompliance  with  terms  of  policy  by  insured,  matter  of  defense; 
Jones  v.  United  States  Mut.  Acci.  Asso.  92  Iowa,  659,  61  N.  W.  485,  holding 
burden  on  insurer  of  proving  conditions  avoiding  policy,  though  called  "condi- 
tions precedent." 

Cited  in  note    (4  L.R.A.  (N.S.)    638)   on  duty  of  insured  to  negative  death  or 
accident  from  excepted  cause. 
Enforcement  of  claims  against  mutual  benefit  association. 

Cited  in  Christie  v.  Iowa  L.  Ins.  Co.  Ill  Iowa,  180,  82  X.  W.  499,  holding 
supplemental  petition  for  judgment  proper  where  assessment  ordered  on  members 
of  association  is  insufficient;  Union  Mut.  Acci.  Asso.  v.  Frohard,  33  111.  App.  183, 
holding  burden  upon  mutual  association  to  show  that  assessment  would  not  have 
realized  amount  of  risk;  American  Home  Circle  v.  Schumm,  111  111.  App.  318, 
holding  liability  under  death  benefit  certificate  accrued  at  death  of  member. 

Distinguished  in  Lindsey  v.  Western  Mut.  Aid  Soc.  84  Iowa,  745,  50  N.  W.  29, 
holding  improper  court's  reservation  of  right  to  order  legal  proceedings  to  collect 
possible  deficiency. 
Necessity  of  attaching  application  to  policy. 

Cited  in  Grimes  v.  Northwestern  L.  of  H.  97  Iowa,  324,  64  N.  W.  806,  66  N.  W. 
183,  requiring  attachment  of  application  to  policy  of  fraternal  and  insurance 
association  not  complying  with  exemption  statutes;  Corson  v.  Iowa  Mut.  F.  Ins. 
Asso.  115  Iowa,  487,  88  N.  W.  1086,  holding  fire  insurer  cannot  prdve  falsity  of 
insured's  statements,  not  attached  to  policy. 
Time  for  making  assessment. 

Cited  in  Collins  v.  Bankers'  Acci.  Ins.  Co.  96  Iowa,  220,  59  Am.  St.  Rep.  367, 
64  N.  W.  778,  holding  membership  assessment  to  pay  policy  must  be  made  as  of 
date  of  death  of  insured. 

Liability    of   nevr   member   for   previous   assessments   in   mutual    insurance 
company. 

Cited  in  Hetzel  v.  Knights  &  Ladies  of  Golden  Precept,  129  Iowa.  657,  106  N. 
W.  157,  holding  that  a  new  member  is  not  liable  for  previous  assessments. 


163  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  667 

1  L.  R.  A.  664,  TEACHOUT  v.  VAN  HOESEN,  76  Iowa,  113,  14  Am.  St.  Rep. 

206,  40  N.  W.  66. 
Actionable  false  representation  as  to  cost,  price  or   \  nine. 

Citing  Johnson  v.  Gavitt,  114  Iowa,  185,  86  N.  W.  256,  holding  that  faTse  state- 
ment as  to  amount  paid  for  land  with  plaintiff's  money  is  actionable;  Dorr  v. 
Cory,  108  Iowa,  732,  78  N.  W.  682,  holding  false  statement  as  to  actual  price 
paid  for  land  actionable  by  persons  deceived;  Garrett  v.  Wannfried,  67  Mo.  App. 
442,  holding  that  false  representations  as  to  cost  of  material  going  into  joint 
business  enterprise  are  actionable;  Franey  v.  Warner,  96  Wis.  236,  71  N.  W.  81, 
holding  false  representations  as  to  cost  of  land,  by  promoters  of  corporation, 
actionable  against  promoters;  Scott  v.  Burnight,  131  Iowa,  509,  107  N.  W.  422, 
holding  false  representation  as  to  values  may  be  actionable  deceit  where  one 
party  is  wholly  ignorant  on  the  subject,  and  they  were  intended  to  deceive  himj 
Bosley  v.  Monahan,  137  Iowa,  655,  112  N.  W.  1102,  holding  agent's  false  rep- 
resentation as  to  selling  price  of  land  is  not  actionable;  Beare  v.  Wright,  14 
X.  D.  37,  69  L.R.A.  414,  103  N.  W.  632,  8  A.  &  E.  Ann.  Cas.  1057,  holding 
that  misrepresentation  of  price  paid  for  property  in  the  absence  of  fiduciary 
relation  or  contract,  is  not  actionable  deceit;  Page  Farmers'  Elevator  Co.  v. 
Thompson,  20  N.  D.  259,  126  N.  W.  1009,  holding  insufficient,  complaint  alleging 
that  defendant  offered  to  sell  to  plaintiff  an  elevator  for  price  defendant  paid 
for  it,  and  that  defendant,  by  falsely  stating  said  price,  induced  plaintiff  to 
pay  a  certain  sum  more  than  elevator  was  worth;  Kohl  v.  Taylor,  62  Wash. 
683,  35  L.R.A.  (N.S.)  182,  114  Pac.  874,  holding  that  false  statement  of  seller 
of  stock  as  to  cost  is  ground  for  rescission  and  damages,  where  future  business- 
relations  were  to  grow  out  of  sale. 

Cited  in  notes  (2  L.  R.  A.  744)  on  requisites  of  action  for  false  representa- 
tions; (6  L.  R.  A.  151)  on  right  of  action  for  deceit;  (25  L.  R.  A.  97)  on  duties 
and  liabilities  of  promoters  of  corporation  to  members;  (35  L.  R.  A.  428)  on 
expression  of  opinion  as  fraud;  (37  L.  R.  A.  613)  on  right  to  rely  upon  represen- 
tations made  to  effect  contract  as  basis  for  charge  of  fraud;  (57  L.  R.  A.  108 > 
as  to  liability  for  misrepresentations  inducing  purchase  of  corporation  stock;  (12 
Eng.  Rul.  Cas.  297;  35  L.R.A.  (N.S.)  185)  on  false  statement  as  to  cost,  selling 
or  market  price  of  property;.- (18  Am.  St.  Rep.  556,  557)  on  liability  for  false 
representations  by  vendor  as  to  value  of  property;  (7  Eng.  Rul.  Cas.  522)  on 
liability  of  promoters  to  subscribers- for  false  representations  as  to  price  ol 
property. 
Proper  party  to  maintain  action  for  fraud  on  stockholder. 

Cited  in  Anderson  Carriage  Co.  v.  Pungs,  134  Mich.  81,  95  N.  W.  985,  on 
proper  party  to  maintain  action  for  fraud  on  stockholders. 

Distinguished  in  Grand  Rapids  Safety  Deposit  Co.  v.  Cincinnati  Safe  &  Lock 
Co.  45  Fed.  673,  holding  corporation  may  recover  for  fraud  against  it,  although 
promoter  of  tort  is  a  stockholder. 

1  L.  R.  A.  667,  ST.  LOUIS,  A.  &  T.  R.  CO.  v.  MACKIE,  71  Tex.  491,  10  Am.  St. 

Rep.  766,  9  S.  W.  451. 
Care  of  passengrer  as  to  discovery  of  agent's  mistake. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Rather,  3  Tex.  Civ.  App.  77,  21  S.  W.  951, 
holding  passenger's  negligence  in  not  discovering  ticket  agent's  mistake  question 
for  jury. 

Cited  in  note  (23  L.  R.  A.  749)  on  notice  to  passenger  of  conditions  on  ticket. 
Injured  person's  doty  as  to  avoiding  consequences  of  wrong-. 

Cited  in  Pullman  Palace  Car  Co.  v.  McDonald,  2  Tex.  Civ.  App.  325,  21  S.  W. 


1  L.R.A.  b'67]  L.  R.  A.  CASES  AS  AUTHORITIES.  164 

945,  holding  evidence  of  inability  to  pay  fare  admissible,  without  special  allega- 
tion; Inman  v.  St.  Louis  S.  W.  R.  Co.  14  Tex.  Civ.  App.  53,  37  S.  W.  37,  holding 
injured  shipper  required  to  act  only  with  reasonable  prudence  to  prevent  unnec- 
cessary  damage  after  refusal  to  receive  goods;  Missouri  P.  R.  Co.  v.  Martino, 

2  Tex.  Civ.  App.  642,  18  S.  W.  1066;  Texas  &  P.  R.  Co.  v.  Dennis,  4  Tex.  Civ. 
App.   97,   23   S.   W.   400,   holding   passenger   need   not   pay   extra   fare   to   avoid 
expulsion;   Texas  &  P.  R.  Co.  v.  Payne,  99  Tex.  48,  70  L.R.A.  948,  122  Am.  St. 
Rep.  603,  87  S.  W.  330,  on  the  liability  of  railroad  company  for  damages  for 
ejection  from  train  because  of  agent's  refusal  to  sign  ticket;  Cherry  v.  Chicago 
&  A.  R.  Co.  191  Mo.  514,  2  L.R.A.(N.S.)    704,  109  Am.  St.  Rep.  830,  90  S.  W. 
381,  holding  that  where  a  person  is  entitled  to  ride  on  the  road  under  a  ticket 
which  he  has  paid  for,  he  need  not  pay  the  fare  demanded  by  the  conductor  to 
prevent  his  ejection;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Dyer,  43  Tex.  Civ.  App.  98,  95 
S.  W.  12,  holding  that  a  passenger  entitled  to  be  carried  on  a  train  is  not  bound 
to  pay  the  extra  fare  demanded,  in  order  to  reduce  the  resultant  damages,  but 
may  stand  on  his  rights. 

Distinguished  in  Galveston,  H.  &  H.  R.  Co.  v.  Scott,  34  Tex.  Civ.  App.  504, 
79  S.  W.  642,  holding  that  the  defendant  road  was  not  liable  for  ejection  of 
plaintiff's  wife  from  the  train  because  of  failure  to  pay  fare,  whether  or  not 
he  was  unable  to  pay  the  fare,  where  he  allowed  her  to  enter  the  train  without 
a  ticket. 

Cited  as  overruled  in  Texas  &  P.  R.  Co.  v.  Arnold,   16  Tex.  Civ.  App.  76,  40 
S.  W.  829,  as  to  qualification  of  doctrine  of  avoidable  consequences. 
Conclusiveness  of  ticket  as  evidence  of  contract. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Kinnebrew,  7  Tex.  Civ.  App.  551,  27 
S.  W.  631,  and  Gulf,  C.  &  S.  F.  R.  Co.  v.  Halbrook,  12  Tex.  Civ.  App.1  481,  33  S. 
W.  1028,  holding  ticket  is  not  conclusive  evidence  of  contract  to  carry  passen- 
ger; Hot  Springs  R.  Co.  v.  Deloney,  65  Ark.  180,  67  Am.  St.  Rep.  913,  45  S.  W. 
351;  Missouri  P.  R.  Co.  v.  Martino,  2  Tex.  Civ.  App.  642,  18  S.  W.  1066,  21 
S.  W.  781;  Texas  &  P.  R.  Co.  v.  Dennis,  4  Tex.  Civ.  App.  96,  23  S.  W.  400;  Evans- 
ville  &  T.  H.  R.  Co.  v.  Cates,  14  Ind.  App.  174,  41  N.  E.  712;  Gulf,  C.  &  S.  F. 
R.  Co.  v.  Wright,  2  Tex.  Civ.  App.  469,  21  S.  W.  399,— holding  railroad  assumes 
responsibility  for  conductor's  wrongful  demand  of  extra  fare;  Indianapolis 
.Street  R.  Co.  v.  Wilson,  161  Ind.  159,  66  ^T.  E.  950,  holding  carrier  liable  for 
forcibly  ejecting  passenger,  when  conductor  of  another  car  had  given  him  wrong 
transfer;  Northern  P.  R.  Co.  v.  Pauson,  30  L.  R.  A.  733,  17  C.  C.  A.  291,  44 
KJ.  S.  App.  178,  7jO  Fed.  589,  holding  railway  company  liable  for  expulsion  of 
passenger  due  to  agent's  failure  to  stamp  ticket;  Texas  &  P.  R.  Co.  v.  Wynn, 
•44  Tex.  Civ.  App.  31,  97  S.  W.  506,  holding  that  where  one  applies  for  a 
roundtrip  ticket  over  connecting  lines  and  is  given  a  contract  which  is  signed, 
but  upon  which  he  is  refused  transportation,  he  had  a  right  to  assume  that 
the  paper  given  was  a  ticket  and  not  an  ord«r  for  one. 

'Cited  in  footnote  to  Atkinson  v.  Southern  R.  Co.  55  L.  R.  A.  223,  which  holds 
action  maintainable  for  expulsion  because  train  did  not  stop  at  station  called 
for  by  ticket. 

Cited  in  notes  (43  L.  R.  A.  708.  710)  on  duty  to  pay  fare  where  failure  to 
have  proper  ticket  is  fault  of  ticket  agent;  (2  L.R.A. (X.S.)  697)  on  validity  or 
regulation  requiring  passenger  to  pay  disputed  fare. 

Distinguished  in  Ellis  v.  Houston  E.  &  W.  T.  R.  Co.  30  Tex.  Civ.  App.  178, 
70  S.  W.  114,  holding  carrier  not  liable  for  ejection  of  passenger  from  freight 
train  for  failure  to  sign  permit,  although  agent  sold  him  ticket  without  asking 
him  to  sign  such  permit;  Gulf,  C.  &  S.  F.  R.  Co.  v.  McCormick,  45  Tex.  Civ. 
App.  428,  100  S.  W.  202,  holding  that  one  who  buys  and  loses  his  ticket,  and 


165  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  671 

thereafter,  enters  a  train  and  refuses  to  pay  for  his  passage,  and  is  ejected 
from  the  train  is  not  entitled  to  recover  the  price  of  the  ticket  nor  damages. 
Duty  of  carrier  to  protect  passenger*. 

Cited  McMahon  v.  Chicago  C.  R.  Co.  143  111.  App.  612,  holding  that  the 
company  is  bound  to  use  due  diligence  to  protect  passengers  from  assault  both 
by  its  servants  and  others. 

Cited   in  note    (32  Am.  St.  Rep.  95)    on  carriers'  duty  to  protect  passengers 
from  assault. 
Tnilnre  to  provide  sent. 

Cited  in  Texas  &  P.  R.  Co.  v.  Rea,  27  Tex.  Civ.  App.  552,  65  S.  W.  1115,  hold- 
ing  carrier   liable   for   damages   proximately   resulting   from   failure  to   provide 
passenger  with  seat. 
Measure  of  damages. 

Cited  in  footnote  to  Davis  v.  Tacoma  R.  &  P.  Co.  66  L.R.A.  802,  which 
holds  that  damages  for  being  wrongfully  ordered  to  leave  place  of  public 
resort  may  include  compensation  for  sense  of  wrong  suffered,  feeling  of  humilia- 
tion, and  disgrace,  and  mental  suffering. 

Distinguished  in  Norwood  v.  Galveston,  H.  &  S.  A.  R.  Co.  12  Tex.  Civ.  App. 
561,  34  S.  W.  180,  requiring  private  person  to  prove  special  damages  to  recover 
for  violation  of  penal  statute. 

1  L.  R.  A.  669.  VAN  ETTEN  v.  STATE,  24  Neb.  734,  40  N.  W.  289. 
Attorney's  lien. 

Cited  in  State  v.  Lucas,  24  Or.  173,  33  Pac.  538,  holding  attorney  had  no  lien 
on  money  delivered  to  him  for  use  as  bail  only;  Harshman  v.  Armstrong,  119 
Ind.  226.  21  N.  E.  662,  holding  attorney  may  retain  client's  moneys  for  general 
balance  due,  as  against  prior  judgment  creditor. 

Cited  in  footnote  to  Loofbourow  v.  Hicks,  55  L.  R.  A.  874,  which  holds  attor- 
ney's lien  in  foreclosure  attaches  to  land. 

Cited  in  notes  (12  Am.  St.  Rep.  831;  24  Eng.  Rul.  Cas.  703)  on  lien  of 
solicitor  or  attorney. 

Distinguished  in  Gordon  v.  Hennings,   89   Neb.  255,   131  N.  W.  228,  holding 
that  treasurer,  after  revocation  of  attorney's  authority  to  collect  city  warrants, 
pays   at   his   own   risk   any  money   to  attorney   in  excess   of   amount   due   from 
client  to  attorney. 
Embezzlement. 

Cited  in  Hamilton  v.  State,  46  Neb.  286,  64  N.  W.  965,  holding  mere  indebted- 
ness of  agent  to  principal  on  balanced  account  not  embezzlement;  State  v. 
Reddick,  2  S.  D.  126,  48  N.  W.  846,  holding  misappropriation  by  partner  of 
firm's  funds  with  felonious  intent  not  embezzlement. 

Cited  in  note  (31  L.R.A.  (N.S.)  825)  on  failure  to  account  to  one  jointly  in- 
terested as  theft,  larceny,  or  embezzlement. 

Distinguished  in  Edmondson  v.  State,  89  Neb.  801,  132  N.  W.  527,  holding 
that  fact  that  guardian  is  entitled  to  compensation  out  of  ward's  money  con- 
verted by  him  is  not  defense  to  prosecution  for  embezzlement. 

1  L.  R.  A.  671,  AMERICAN  STEAM-BOILER  INS.  CO.  v.  WILDER,  39  Minn. 

350,  40  N.  W.  252. 
Right  of  assnred   to   rescind  contract. 

Cited  in  note  (21  Am.  St.  Rep.  37)  on  right  of  assured  to  rescind  insurance 
contract. 


1  L.E.A.  673]  L.  R.  A.  CASES  AS  AUTHORITIES.  166 

1  L.  R.  A.  673,  POULSEN  v.  PORTLAND,  16  Or.  450,  19  Pac.  450. 

Judgment  roll  offered  in  evidence  in  Bays  v.  Trulson,  25  Or.  112,  35  Pac.  26. 
Notice  as  affecting:  taking:  of  property  \\  it  limit  due  process  of  law. 

Affirmed  in  149  U.  S.  37,  37  L.  ed.  640,  13  Sup.  Ct.  Rep.  750,  holding  notice 
unnecessary  before  ordering  construction  of  sewer  and  creating  taxing  district. 

Cited  in  Shannon  v.  Portland,  38  Or.  393,  62  Pac.  50,  upholding  assessment, 
though  reasonable  notice  was  not  given;  Houck  v.  Roseburg,  56  Or.  244,  108 
Pac.  186,  holding  that  equity  will  not  enjoin  collection  of  sewer  assessment, 
where  constructive  notice  is  given  to  owner  benefited  by  statutory  publication 
in  newspaper. 

Cited  in  footnotes,  Chicago  &  E.  R.  Co.  v.  Keith,  60  L.  R.  A.  525,  which  holds 
notice  necessary  to  valid  assessment  on  real  estate,  other  than  general  taxes; 
Brown  v.  Markham,  30  L.  R.  A.  84,  which  upholds  statute  authorizing  estab- 
lishment of  logger's  lien  without  notice  to  owner,  where  he  is  permitted  to 
intervene  in  original  action,  and  not  precluded  from  denying,  in  subsequent  pro 
ceeding,  the  right  to  a  lien. 

Cited  in  notes   (24  L.  R.  A.  355)   on  taking  of  property  without  due  process  of 
law;    (60  L.  R.  A.  210,  242)    on  procedure  for  the  establishment  of  drains  and 
sewers  as  to  notice  and  contest. 
Stare  decisis. 

Approved  in  Logan  County  v.  Carnahan,  66  Neb.  695,  95  N.  W.  812,  on  the 
doctrine  of  stare  decisis,  as  binding  though  against  the  present  views  of  the 
court. 

Cited  in  Scott  v.  Stewart,  84  Ga.  774,  11  S.  E.  897,  following  decision  of  eleven 
years'  standing,  although  against  views  of  court;  Runyan  v.  Winstock,  55  Or. 
208,  104  Pac.  417,  hoMing  that  decisions  construing  statute  giving  husband 
estate  by  curtesy  establish  rule  of  property. 

Cited    in   note    (73   Am.    St.    Rep.    99)    on    limitations   on    doctrine    of    stare 
decisis. 
Imposition  of  assessment  for  improvements. 

Cited  in  Masters  v.  Portland,  24  Or.  165,  33  Pac.  540,  holding  wilful  omis- 
sion to  assess  a  portion  of  property  benefited  by  local  improvement  invalidates 
assessment;  Wilson  v.  Salem,  24  Or.  508,  34  Pac.  9,  691,  holding  city  coun- 
cil has  discretionary  power  to  improve  street  at  expense  of  abutting  property : 
Oregon  &  C.  R.  Co.  v.  Portland,  25  Or.  238,  22  L.  R.  A.  715,  35  Pac.  452,  hold- 
ing courts  will  not  review  city  council's  discretionary  power  to  assess,  if 
honestly  exercised;  Independence  v.  Gates,  110  Mo.  382,  19  S.  W.  728,  holding 
courts  may  interfere  with  assessment  levied  by  city,  to  prevent  gross  injustice; 
Atlanta  v.  Hamlein,  96  Ga.  384,  23  S.  E.  408,  holding  invalid  local  assessment 
amounting  to  virtual  confiscation;  Speer  v.  Athens,  85  Ga.  62,  9  L.  R.  A. 
406,  11  S.  E.  802,  holding  legislative  determination  of  lands  benefited  by  im- 
provement conclusive  upon  owner;  Beckett  v.  Portland,  53  Or.  172,  99  Pac.  05!). 
holding  that  the  action  of  the  city  council  in  assessing  benefits  for  public 
improvements  and  fixing  districts  is  conclusive  and  not  open  to  collateral 
attack  in  absence  of  fraud  appearing  on  face  of  council's  actions. 

Cited  in  footnote  to  State  ex  rel.  Baltzell  v.  Stewart,  6  L.  R.  A.  394,  which 
Tiolds  that  legislature  may  grant  power  to  drainage  commissioners  to  deter- 
mine what  lands  benefited. 

Cited  in  notes  (9  L.  R.  A.  207)  on  statutory  regulations  as  to  drains  and 
sewers;  (58  L.  R.  A.  359)  on  who  is  liable  for  expense  of  drainage. 

Distinguished  in  Knowles  v.  New  Sweden  Irrig.  Dist.  16  Idaho,  248,   101  Pac. 


167  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.KA.  682 

81,  holding  that  inability  to  confer  any  benefits  implies  a  lack  of  jurisdiction 
to  assess  for  benefits  by  a  board  of  irrigation. 
Joinder  of   parties   to   -nil. 

C'ited  in  Tieman  v.  Sachs,  52  Or.  564,  98  Pac.  163,  holding  that  a  demurrer 
for  defect  of  parties  can  be  interposed  only  where  there  are  too  few,  and  not 
because  there  are  too  many;  Coleman  v.  Rathbun,  40  Wash.  307,  82  Pac.  540, 
holding  that  in  order  to  avoid  a  multiplicity  of  suits  an  action  in  equity  by 
many  plaintiffs  will  be  allowed  to  be  brought  jointly  by  persons  owning  lands 
to  restrain  the  enforcement  of  liens. 

1  L.  R.  A.  680,  FLAHERTY  v.  NORTHERN  P.  R.  CO.  39  Minn.  328,  12  Am. 

St.  Rep.  G54,  40  N.  W.   160. 
Concurrent  wrongs. 

Cited  in  Brown  v.  Coxe  Bros.  &  Co.  75  Fed.  691,  and  Pugh  v.  Chesapeake 
&  O.  R.  Co.  101  Ky.  83,  72  Am.  St.  Rep.  392,  39  S.  W.  695,  upholding  joint 
and  several  liabilities  for  separate  acts  of  negligence  concurring  in  injury; 
Bacon  v.  Pullman  Co.  16  L.R.A.(N.S.)  582,  89  C.  C.  A.  1,  159  Fed.  6,  14  A. 
&  E.  Ann  C'as.  516,  holding  concurring  negligence  of  another  does  not  relieve 
wrongdoer  from  liability;  Indianapolis  Union  R.  Co.  v.  Waddington,  169  Ind. 
459,  82  N.  E.  1030,  holding  action  may  be  maintained  against  joint  wrongdoers 
where  negligence  was  contemporaneous;  Pacific  Teleph.  &  Teleg.  Co.  v.  Par- 
menter,  95  C.  C.  A.  382,  170  Fed.  144,  holding  telephone  company  and  person 
cutting  tree  so  that  it  fell  against  wire  causing  pole  to  fall  on  traveler,  jointly 
and  severally  liable;  Strauhal  v.  Asiatic  S.  S.  Co.  48  Or.  107,  85  Pac.  230, 
holding  that  owner,  employing  plaintiff  to  man  pumps  of  unseaworthy  barge,  is 
jointly  liable  with  lessee,  improperly  loading  barge,  for  drowning  of  plaintiff 
by  capsizing  of  barge;  Sun  Co.  v.  Wyatt,  48  Tex.  Civ.  App.  352,  107  S.  W.  934, 
holding  that  each  of  several  companies,  independently  laying  pipes  in  street 
drainage  ditch,  causing  water  to  overflow  plaintiff's  premises  is  separately 
liable  for  damage  caused  by  it;  Walton  v.  Miller,  109  Va,  215,  132  Am.  St.  Rep. 
908,  63  S.  E.  458,  holding  railroad  and  contractor  jointly  and  severally  liable 
for  death  of  engineer  for  negligence  in  giving  warning  of  obstruction  on  track. 

C'ited  in  note    (16  Am.  St.  Rep.  252)    on  negligence  of  two  or  more  persons 
resulting  in  injury  to  third  person. 
Imputed  negligence. 

Cited  in  Koplitz  v.  St.  Paul,  86  Minn.  375,  58  L.  R.  A.  75,  90  N.  W.  794, 
holding  one  not  imputable  with  negligence  of  another  in  conduct  not  authorized, 
participated  in,  or  subject  to  his  control;  East  Tennessee,  V.  &  G.  R.  Co.  v. 
Markens,  88  Ga.  62,  14  L.  R.  A.  282,  13  S.  E.  855,  holding  negligence  of  hack 
driver  not  imputable  to  female  passenger. 

Cited  in  notes  (8  L.  R.  A.  494)  on  doctrine  of  imputed  negligence;  (9  L.  R.  A 
157)  on  negligence  of  driver  not  imputed  to  passenger;  (8  L.R.A.(N.S.)  601T 
606,  614,  616)  on  imputed  negligence  of  driver  to  passenger;  (110  Am.  St.  Rep. 
290)  on  imputed  negligence. 

1  L.  R.  A.  682,  QUIXN  v.  SOUTH  CAROLINA  R.  CO.  29  S.  C.  381,  7  S.  E.  614. 
"N  i-u  !  iirt-no-   as  question   for  jury. 

C'ited  in  note   (22  Am.  St.  Rep.  908)   on  negligence  as  question  for  jury. 
Passenger's  contributory  negligence  In  projecting  arm  from  car. 

Cited  in  Smith  v.  St.  Louis  Transit  Co.  120  Mo.  App.  333,  97  S.  W.  218, 
holding  that  contributory  negligence  of  passenger  in  allowing  elbow  to  protrude 
from  car  window,  was  question  for  jury. 


1  L.R.A.  682]  L.  K.  A.  CASES  AS  AUTHORITIES.  168 

Cited  in  note  (116  Am.  St.  Rep.  722)  on  negligence  of  passenger  in  projecting 
a  member  of  body  out  of  car  window. 

Distinguished  in  Georgia  P.  R.  Co.  v.  Underwood,  90  Ala.  51,  24  Am.  St.  Rep. 
756,  8  So.  116,  holding  that  protrusion  of  arm  beyond  window  of  car  in  motion 
is   negligence   per  se. 
Liability  for  servant's  act. 

Cited  in  Rucker  v.  Smoke,  37  S.  C.  381,  34  Am.  St.  Rep.  758,  16  S.  E.  40r 
holding  principal  liable  for  exemplary  damages  accruing  in  course  of  agency; 
Hart  v.  Charlotte,  C.  &  A.  R.  Co.  33  S.  C.  436,  10  L.  R.  A.  790,  12  S.  E.  9, 
holding  lessor  liable  in  exemplary  damages  for  recklessness  of  lessee's  servant;. 
Grayson  v.  St.  Louis  Transit  Co.  100  Mo.  App.  74,  71  S.  W.  730,  holding  com- 
pany liable  for  false  arrest  ordered  by  conductor  before  passenger  left  car. 

Cited  in  note   (4  L.R.A.  (N.S.)    506)   on  liability  for  malicious  act  of  servant 
when  master  owes  special  duty  to  party  injured. 
Wilfulness  as  ground  for  exemplary  damages. 

Cited  in  Samuels  v.  Richmond  &  D.  R.  Co.  35  S.  C.  504,  28  Am.  St.  Rep.  883r 
14  S.  E.  943,  holding  that  wilful  refusal  to  deposit  passenger  at  destination- 
warrants  exemplary  damages;  Spellman  v.  Richmond  &  D.  K.  Co.  35  S.  C.  489, 
28  Am.  St.  Rep.  858,  14  S.  E.  947,  holding  that  wanton  or  reckless  disregard 
of  rights  warrants  exemplary  damages;  Taber  v.  Seaboard  Air  Line  R.  Co.  81 
S.  C.  320,  62  S.  E.  311,  holding  that  punitive  damages  could  be  recovered 
against  a  railroad  company  for  wilful  acts  of  agent  though  it  never  ratified  the 
act. 

Cited  in  notes  (28  Am.  St.  Rep.  877,  8  Eng.  Rul.  Cas.  375)  on  right  to  puni- 
tive damages. 

Criticized  in  Pickens  v.  South  Carolina  &  G.  R.  Co.  54  S.  C.  507,  32  S.  E. 
567,  holding  wilfulness  essential  to  recovery  of  exemplary  damages. 

Cited  as  criticized  in  Watts  v.  South  Bound  R.  Co.  60  S.  C.  74,  38  S.  E.  240, 
holding  allegation  of  wanton  and  reckless  act  warrants  exemplary  damages. 

1    L.   R.   A.   685,   SHELDON   v.   BLAXVELT,   29    S.   C.   453,    13   Am.    St.    Rep. 
749,  7   S.  E:  593. 

Cited  without  special  discussion  in  Savannah  Grocery  Co.  v.  Rizer,  70   S.  C.. 
509,   50   S.   E.   199. 
Frnndnlent   assignments   for   creditors. 

Cited  in  note  (58  Am.  St.  Rep.  92)  on  fraudulent  assignments  for  creditors. 
What  are  fixtures. 

Cited  in  Hughes  v.  Edisto  Cypress  Shingle  Co.  51  S.  C.  28,  28  S.  E.  2,  hold- 
ing that  portable  engine  and  sawmill  located  for  temporary  purposes  are  per- 
sonal property;  William  Firth  Co.  v.  South  Carolina  Loan  &  T.  Co.  122  Fed- 
579,  holding  cotton  machinery  in  mill  to  be  fixture  as  between  mortgagor 
and  mortgagee. 
Conflict  of  latvs. 

Cited  in  National  Exch.  Bank  v.  Stelling,  31  S.  C.  367,  9  S.  E.  1028,  sus- 
taining jurisdiction  to  set  aside  foreign  assignment  where  parties  nonresident, 
but  property  in  state;  Ayres  v.  Despartes,  56  S.  C.  547,  35  S.  E.  218,  denying 
right  of  action  under  foreign  preferential  assignment  for  creditors ;  Chicago, 
B.  &  Q.  R.  Co.  v.  Gardiner,  51  Neb.  79,  70  N.  W.  508,  refusing  to  enforce  foreign 
limitation  upon  carrier's  liability,  valid  where  made,  but  contrary  to  public 
policy;  Parker  v.  Moore,  53  C.  C.  A.  372,  115  Fed.  802,  refusing  to  enforce- 
contract  for  future  delivery  of  cotton,  valid  under  lex  loci,  but  contrary  to  pub- 
lic policy  of  forum;  Adams  v.  Fellers,  88  S.  C.  214,  35  L.R.A.(N.S.)  388,  70  S. 


169  L.  K.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  688 

E.  722,  holding  that  lessor  of  machine  for  use  in  state  whose  laws  do  not 
require  recording  of  lease  can  recover  machine  from  bona  fide  purchaser  in 
another  state  whose  laws  require  recording  of  lease. 

Cited  in  note  (55  Am.  St.  Rep.  775)  on  enforcement  of  contract  outside  of 
jurisdiction  where  made. 

Distinguished  and  doubted  in  Schroder  v.  Tompkins,  58  Fed.  677,  holding  for- 
eign voluntary  assignment  for  creditors  to  be  effectual  conveyance  of  property 
in   assignee's   possession. 
Nonresident's   rinln   to  sue. 

Cited  in  Gibson  v.  Everett,  41  S.  C.  26,  19  S.  E.  286,  and  Ford  v.  Calhoun, 
53  S.  C.  113,  30  S.  E.  830,  sustaining  nonresident's  right  to  sue;  Corn  Exch. 
Bank  v.  Rockwell,  58  Hit  App.  515,  holding  nonresidents  in  court  entitled  to 
rights  and  remedies  of  citizens;  Barnett  v.  Kinney,  2  Idaho,  710,  23  Pac 
922,  holding  nonresidence  of  attaching  creditor  without  prejudice  to  rights: 
Garner  v.  Garner,  70  S.  C.  509,  50  S.  E.  5,  on  the  jurisdiction  of  the  state 
courts  over  cause  of  action  arising  in  state,  both  parties  being  nonresidents 
Uiiiln  to  attachment. 

Cited  in  Central  R.  &  Bkg.  Co.  v.  Georgia  Constr.  &  Invest.  Co.  32  S.  C 
342,  11  S.  E.  192,  holding  absence  of  right  to  sue  precludes  attachment  in  aid  of 
action. 

1  L.  R.  A.  688,  SCOTT  v.  TOLEDO,  36  Fed.  385. 
Compensation  essential  to  dne  process. 

Cited  in  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S.  238,  41  L.  ed.  985,  17 
Sup.  Ct.  Rep.  581,  holding  taking  for  public  use,  without  compensation,  not 
due  process;  Baker  v.  Norwood,  74  Fed.  1000,  holding  taking  of  single  individ- 
ual's property  and  assessing  him  with  amount  awarded  and  expenses,  not  due 
process;  Anderton  v.  Milwaukee,  82  Wis.  285,  15  L.  R.  A.  832,  52  N.  W.  95, 
holding  discrimination  in  compensation  a  denial  of  equal  protection ;  Louisville 
&  N.  R.  Co.  v.  Central  Stock  Yards  Co.  133  Ky.  202,  97  S.  W.  778,  on  the 
necessity  of  compensation  paid  or  secured  before  taking  for  public  use. 

Cited  in   footnote  to  State  v.   Sponaugle,  43  L.   R.   A.  727,  which  holds  for- 
feiture for  nonpayment  of  taxes,  sale,  and  return  of  excess  of  proceeds  to  own- 
er,   due   process. 
Notice  essential  to  due  process. 

Cited  in  Davies  v.  Los  Angeles,  86  Cal.  46,  24  Pac.  771,  holding  notice  by 
posting  and  publication  to  be  due  process;  Goodrich  v.  Detroit,  184  U.  S.  437, 
46  L.  ed.  631,  22  Sup.  Ct.  Rep.  397,  holding  possible  future  assessment  for 
benefits,  too  remote  to  require  notice  of  taking  of  another's  land;  People  v. 
Adirondack  R.  Co.  39  App.  Div.  49,  56  N.  Y.  Supp.  869  (dissenting  opinion), 
majority  holding  that  filing  map  and  giving  notice  gave  right  to  condemn  land 
subsequently  purchased  by  state;  Murdock  v.  Cincinnati,  39  Fed.  892,  holding 
assessments  without  notice  or  opportunity  to  be  heard,  not  due  process:  Mc- 
Gavock  v.  Omaha,  40  Neb.  79,  58  N.  W.  543,  holding  right  of  action  for  damage 
not  barred  by  improvement  without  notice:  Anderson  v.  Messenger,  85  C.  C. 
A.  468,  158  Fed.  256,  on  the  necessity  of  notice  in  levying  assessments. 

Cited  in  footnotes  to  Branson  v.  Gee,  24  L.  R.  A.  355,  which  holds  notice 
of  taking  not  required  if  right  to  damages  and  hearing  thereon  given ;  Brown 
v.  Markham,  30  L.  R.  A.  84,  which  holds  notice  not  essential  to  due  process  of  log 
lien  proceedings  if  owner  may  contest  merits  upon  enforcement;  Chicago  & 
E.  R.  Co.  v.  Keith,  60  L.  R.  A.  525.  which  holds  notice  necessary  to  validity 
of  assessment  on  real  estate,  other  than  general  taxes. 


1  L.R.A.  688]  L.  R.  A.  CASES  AS  AUTHORITIES.  170 

—  Assessment   -without    notice   or   hearing:. 

Cited  in  Meyers  v.  Shields,  61  Fed.  720,  holding  entering  of  assessment  on 
duplicate  without  notice  or  hearing,  creating  lien  enforceable  without  suit, 
not  due  process;  McEneney  v.  Sullivan,  125  Ind.  409,  25  N.  E.  540,  holding 
notice  prior  to  conclusive  judgment,  prerequisite  to  lien  for  local  assessment; 
Power  v.  Larabee,  2  N.  D.  155,  49  N.  W.  724,  holding  imposition  of  tax  without 
statutory  meeting  of  board  of  equalization  not  due  process. 

Distinguished    in    Murdock    v.    Cincinnati,    44    Fed.    727,    holding    assessment 
at  instance  of,  and  in  mode  desired  by,  one  assessed  not  void  for  want  of  no- 
tice or  hearing,  defense  being  available  in  suit. 
Right  to  set  off  benefits  against  damages  on  condemnation. 

Cited  in  note   (9  L.R.A.  (N.S.)   833)   on  right  to  set  off  benefits  against  dam- 
ages on  condemnation. 
Validity  of  assessments  by  front-foot  rale. 

Cited  in  note,  (28  L.R.A. (N.S.)  1145)  on  validity  of  assessments  for  improve- 
ments by  front-foot  rule. 

I  L.  R.  A.  698,  GRIFFIN  v.  BOSTON  &  A.  R.  CO.  148  Mass.  143,  12  Am.  St. 

Rep.   526,   19  N.  E.   166. 
Fellow  servant's   negligence. 

Cited  in  Myers  v.  Hudson  Iron  Co.  150  Mass.  137,  15  Am.  St:  Rep.  176,  22  N. 
E.  631;  Union  P.  R.  Co.  v.  Callaghan,  6  C.  C.  A.  207,  12  U.  S.  App.  541,  56  Fed. 
990;  Northwestern  Fuel  Co.  v.  Danielson,  6  C.  C.  A.  639,  12  U.  S.  App.  088, 
•57  Fed.  919,  —  holding  master's  liability  for  negligence  not  relieved  by  con- 
tributing negligence  of  fellow  servant;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sutton, 

II  C.  C.  A.  253,  27  U.  S.  App.  310,  63  Fed.  395,  holding  contributory  negligence 
of   third   party   without   effect   upon   defendant's   liability    for   negligence;    Chi- 
cago, St.  P.  &  K.  C.  R.  Co.  v.  Chambers,   15  C.  C.  A.  333,  32  U.  S.  App.  253, 
68  Fed.  153,  holding  contributing  negligence  of  plaintiff's  fellow  servant  no  de- 
fense to  stranger's  negligence. 

Cited  in  notes   (7  L.  R.  A.  503)   on  who  are  fellow  servants;    (54  L.  R.  A.  71, 
174)   on  vice  principalship  as  determined  with  reference  to  the  character  of  the 
act  which   caused  the   injury;    (1   L.R.A. (N.S.)    670)    on   negligence  of   servant 
in  sending  out  unsafe  street  cars  causing  injury  to  other  servants. 
Prima  facie  evidence  of  negligence. 

Cited  in  Babcock  v.  Old  Colony  R.  Co.  150  Mass.  471,  23  N.  E.  325,  holding 
leaving  pile  of  sleepers  near  track  in  railroad  freight  yard  for  long  time, 
evidence  of  master's  negligence;  Womble  v.  Merchants  Grocery  Co.  135  N.  C. 
484,  47  S.  E.  493,  holding  falling  of  elevator  without  apparent  cause,  evidence 
of  negligence  in  construction;  Drake  Standard  Mach.  Works  v.  Brossinan,  135 
111.  App.  222,  holding  that  proof  of  an  injury  occurring  as  the  proximate  re- 
sult of  an  act  which  under  ordinary  circiunstances  would  not  have  injured 
anyone,  raises  a  presumption  of  negligence;  Falardeau  v.  Hoar,  192  Mass. 
267,  78  N.  E.  456,  holding  that  proof  of  injury  by  falling  through  unguarded 
trap  door  was  prima  facie  proof  of  negligence;  Cahill  v.  New  England  Teleph. 
&  Teleg.  Co.  193  Mass.  417,  79  N.  E.  821,  holding  that  proof  of  receiving  un- 
usual electric  shock  by  telephone  operator  was  prima  facie  evidence  of  de- 
fective condition  of  switch-board;  Magee  v.  New  York,  N.  H.  &  H.  R.  Co.  195 
Mass.  113,  80  N.  E.  689,  holding  that  in  the  absence  of  explanation  the  injury 
to  the  passenger  will  be  presumed  to  have  come  from  a  cause  for  which  de- 
fendant was  responsible;  Egan  v.  Old  Colony  Street  R.  Co.  195  Mass.  161,  80 
N.  E.  696,  holding  proof  of  derailment  of  car  is  prima  facie  evidence  of  negli- 


171  L.  E.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  698 

gence  on  part  of  carrier,  and  defective  construction  of  track;  Ryan  v.  Fall 
River  Iron  Works  Co.  200  Mass.  193,  80  X.  E.  310,  holding  that  the  self  start- 
ing of  a  machine  which  was  not  constructed  to  do  so,  was  evidence  priraa 
facie  of  defective  condition  of  same;  Doherty  v.  Booth,  200  Mass.  525,  86  N. 
E.  945,  holding  that  the  breaking  of  a  sling  rope  was  prima  facie  evidence 
of  negligence  in  failing  to  provide  proper  rope;  Carroll  v.  Boston  Elev.  R.  Co. 
200  Mass.  536,  86  N.  E.  793,  holding  that  proof  of  accident  will  establish  prima 
facie  case  against  carrier  for  injury  to  passenger;  Rogers  v.  Portland  Lumber 
Co.  54  Or.  393,  102  Pac.  601,  on  the  mere  proof  of  accident  as  raising  a 
presumption  of  negligence;  Graaff  v.  Vulcan  Iron  Works,  59  Wash.  328,  109 
Pac.  1016,  holding  that  negligence  may  be  presumed  from  dropping  off  of 
wheel  of  truck. 

Cited  in  footnote  to  Louisville  &  N.  R.  Co.  v.  Hall,  4  L.  R.  A.  710.  which 
holds  railroad  bridge  so  low  that  brakeman  cannot  avoid  danger  by  stooping, 
per  se  a  nuisance. 

Cited  in  notes  (6  L.R.A. (X.S.)  357)  on  res  ipsa  loquitur,  as  between  master 
and  servant;  (19  Eng.  Rul.  Cas.  14)  on  prima  facie  liability  for  negligence  of 
occupier  of  a  tenement. 

Distinguished  in  Thyng  v.  Fitchburg  R.  Co.  156  Mass.  19,  32  Am.  St.  Rep. 
425,  30  N.  E.  169,  holding  mere  use  of  too  short  coupling  pin  on  foreign  car 
not  indication  of  master's  negligence;  Madden  v.  Occidental  &  O.  S.  S.  Co.  86 
Cal.  448,  25  Pac.  5,  holding  mere  breaking  of  rope  sling  not  prima  facie  evidence 
of  negligence;  South  Baltimore  Car  Works  v.  Schaefer,  96  Md.  106,  94  Am.  St. 
Rep.  560,  53  Atl.  665,  holding  master  not  liable  for  injury  from  machine,  in 
absence  of  showing  that  inspection  would  have  disclosed  defect. 

—  Concurrence  of  act  or  negrlect  of  another. 

Cited  in  Byers  v.  Carnegie  Steel  Co.  16  L.R.A.(N.S.)  218,  86  C.  C.  A.  347,  159 
Fed.  351,  holding  that  if  the  accident  occurs  as  a  result  of  the  plaintiff's  own 
negligence,  proof  of  accident  is  not  prima  facie  evidence  of  negligence;  Illinois 
Steel  Co.  v.  Zolnowski,  118  111.  App.  217,  holding  that  the  doctrine  of  res 
ipsa  loquitur  does  not  apply  in  cases  where  the  injury  results  from  wilful 
act  of  another. 
Injnry  must  be  probable  result  of  master's  negligence. 

Cited  in  Mooney  v.  Connecticut  River  Lumber  Co.  154  Mass.  409,  28  N.  E. 
352,  holding  plaintiff  in  action  for  injuries  bound  to  show  proper  inference, 
not  particular  acts  of  master's  negligence;  Johnson  v.  Worcester,  172  Mass, 
124,  51  N.  E.  519,  holding  finding  of  negligence  warranted  if  most  reasonable 
explanation;  Telle  v.  Leavenworth  Rapid  Transit  R.  Co.  50  Kan.  461,  31  Pac. 
1076,  holding  proof  of  obstruction  just  at  time  of  collision  with  train  in- 
sufficient to  establish  negligence  of  master  in  action  by  employee;  Choctaw,  O. 
&  G.  R.  Co.  v.  Holloway,  52  C.  C.  A.  264,  114  Fed.  462,  holding  negligence  of 
railroad  company  in  providing  brake  not  excused  by  negligence  of  third  party 
contributing  to  accident:  Florala  Saw  Mill  Co.  v.  Smith,  55  Fla.  455,  46  So. 
332,  holding  that  proof  of  defective  condition  of  machine  was  sufficient  without 
proof  of  specific  defect. 

Cited  in  note  (16  L.  R.  A.  820)  on  the  relation  of  the  proximate  cause 
doctrine  to  the  rule  of  liability  of  a  master  for  injuries  to  his  servant  caused 
by  combined  negligence  of  himself  and  fellow  servant. 

—  Proximate   cause  as   question    for  jury. 

Cited  in  Manning  v.  Portland  Ship  Building  Co.  52  Or.  107,  96  Pac.  545r 
holding  that  where  it  is  doubtful  whether  the  defendant's  negligence  was  the 
proximate  cause  of  the  injury  it  is  a  question  for  the  jury. 


1  L.R.A.  698]  L.  R.  A.  CASES  AS  AUTHORITIES.  172 

Burden  of  proof  not  sustained  by  equivocal  evidence. 

Cited  in  McCreary  v.  Boston  &  M.  R.  Co.  153  Mass.  308,  11  L.  R.  A.  361, 
26  N.  E.  864,  and  Sprow  v.  Boston  &  A.  R.  Co.  163  Mass.  341,  39  X.  E.  1024, 
holding  prescriptive  public  way  not  proved  by  evidence  consistent  with  pri- 
vate way  or  permissive  use;  Shea  v.  Boston  &  M.  R.  Co.  154  Mass.  33,  27  N.  E. 
672,  holding  burden  of  due  care  not  sustained  by  evidence  as  consistent  with 
carelessness;  Wood  v.  Southern  R.  Co.  104  Va.  655,  52  S.  E.  371,  holding  that 
in  order  to  make  out  a  prima  facie  case  for  personal  injuries  all  the  plaintiff 
must  do  is  to  show  that  it  is  most  probable  that  the  injury  resulted  from  the 
defendant's  negligence. 
Due  care  by  stranger. 

Cited  in  Grand  Rapids  &  I.  R.  Co.  v.  Cox,  8  Ind.  App.  38,  35  N.  E.  183, 
holding  driving  upon  track  immediately  after  passage  of  train  not  negligence 
per  se. 

Distinguished  in  Fletcher  v.  Fitchburg  R.  Co.  149  Mass.  133,  3  L.  R.  A.  745, 
21    N.    E.    302,    holding    driving    upon    main    track    immediately    upon    passing 
of  train  on  intervening  switch  not  due  care. 
Duty   of  master  to   provide   safe   machinery   and   appliances. 

Cited  in  footnotes  to  Minty  v.  Union  P.  R.  Co.  4  L.  R.  A.  409,  which  holds 
that  injured  servant,  before  recovery,  must  show  accident  not  due  to  defect  ob- 
vious to  himself;  Philadelphia  &  R.  R.  Co.  v.  Huber,  5  L.  R.  A.  439,  which 
holds  it  question  for  jury  whether  brakeman  negligent  in  using  brake,  defect 
in  which  could  have  been  seen;  Goodrich  v.  New  York  Central  &  H.  R.  R.  Co. 
5  L.  R.  A.  750,  which  holds  railroad  company  liable  for  permitting  cars  from 
another  road  with  defective  coupling  apparatus  to  go  into  a  train;  Lehigh  & 
W.  Coal  Co.  v.  Hayes,  5  L.  R.  A.  441,  which  holds  company  not  liable  for  failing 
to  provide  appliance  to  warn  employees  in  pocket  of  danger  from  drawing 
coal;  Pittsburg  &  L.  E.  R.  Co.  v.  Henley,  15  L.  R.  A.  384,  which  holds  it  not 
negligence  per  se  for  railroad  to  adopt  new  coupling  device  without  dis- 
carding old;  Tennessee  Coal,  Iron  &  R.  Co.  v.  Kyle,  12  L.  R.  A.  103.  which 
holds  railroad  liable  to  employee  for  injury  caused  by  running  freight  train  with- 
out cowcatcher;  Sweet  v.  Ohio  Coal  Co.  9  L.  R.  A.  861,  which  holds  master  not 
bound  to  conduct  his  business  in  least  hazardous  way. 

Cited  in  notes  (2  L.  R.  A.  521)  on  duty  of  master  to  provide  safe  machin- 
ery; (4  L.  R.  A.  797)  on  who  are  master  and  servant,  in  regard  to  duty  of 
employer  to  provide  safe  machinery;  (41  L.R.A.  130)  on  knowledge  as  an  ele- 
ment of  an  employer's  liability  to  an  injured  servant;  (33  Am.  St.  Rep.  707) 
on  master's  duty  to  furnish  safe  place  and  appliances. 

1   L.   R.   A.   700,   FORD  v.   UNITED   STATES   MUT.   ACCI.   RELIEF   CO.    148 

Mass.  153,  19  N.  E.  169. 
Extent  of  disability  requisite   to  recovery   of  insurance. 

Cited  in  Commercial  Travelers'  Mut.  Acci.  Asso.  v.  Springsteen.  23  Ind.  App. 
662,  55  N.  E.  973,  holding  substantial  disability  sufficient,  though  insured 
able  to  perform  minor  duties  of  occupation;  Rayburn  v.  Pennsylvania  Casualty 
Co.  141  N.  C.  434,  54  S.  E.  283,  holding  person  not  entitled  to  accident  in- 
surance where  he  was  able  to  perform  the  same  services,  and  was  drawing 
the  same  pay  after  the  injury  as  before. 

Cited  in  note    (38  L.  R.  A.   532)    on  what  constitutes  total   disability  of  in- 
sured. 
Conditions    in    policy. 

Cited  in  note  (9  L.  R.  A.  685)  on  restrictions  in  policy  as  to  occupation 
and  employment. 


173  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  702 

Distinguished  in  Wood  v.  Massachusetts  Mut.  Acci.  Asso.   174  Mass.  223,  54 
N.  E.  541,  holding  dated  policy  could  not  be  construed  to  renew  former  policy 
expiring  at  prior  date,  though  application  read  to  "continue  insurance." 
Classification  of  risks. 

Cited  in  note  (13  L.  R.  A,  264)  on  accident  insurance;  classification  of  haz- 
ards. 

1  L.  R.  A.  702,  FOX  v.  BOSTON  &  M.  R.  CO.  148  Mass.  220,  19  N.  E.  222. 
Damage   received   on   connecting   line,   on   through   contract. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Deshong,  63  Ark.  449,  39  S.  W.  260, 
holding  that  market  at  destination,  and  not  at  point  of  connection,  governs  meas- 
ure of  damages;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Coolidge,  73  Ark.  115,  67 
L.R.A.  557,  108  Am.  St.  Rep.  21,  83  S.  W.  333,  3  A.  &  E.  Ann.  Cas.  582, 
on  the  liability  of  connecting  carriers  for  loss  through  concurrent  negligence; 
Wliitnack  v.  Chicago,  B.  &  Q.  R.  Co.  82  Neb.  470,  19  L.R.A.(N.S.)  1017,  130- 
Am.  St.  Rep.  692,  118  N.  W.  67,  holding  initial  carrier  liable  for  freezing  of 
car  of  potatoes  where  the  caretaker  was  prevented  from  accompanying  it, 
by  the  carriers'  act,  though  the  freezing  did  not  occur  till  the  car  was  in 
hands  of  other  carrier. 

Cited  in  footnotes  to  International  &  G.  N.  R.  Co.  v.  Tisdale,  4  L.  R.  A.  545, 
which  holds  liability  of  connecting  carrier  ^for  delay  excused  by  violent  strike 
of  employees;  Taffe  v.  Oregon  R.  &  Nav.  Co.  58  L.  R.  A.  187,  which  holds  in- 
dorsement on  bill  of  lading  of  point  of  destination  beyond  end  of  system  does 
not  render  carrier  liable  for  failure  of  connecting  line  to  carry  "in  fastest 
passenger  train  service,"  according  to  stipulation;  Union  State  Bank  v.  Fre- 
mont, E.  &  M.  Valley  R.  Co.  59  L.  R.  A.  939,  which  upholds  right  of  carrier 
to  limit  liability  for  transportation  of  goods  over  its  own  line;  Kansas  City, 
F.  S.  &  M.  R.  Co.  v.  Washington,  69  L.R.A.  65,  which  holds  initial  carrier 
checking  baggage  to  destination  on  through  ticket  liable  for  loss  on  connecting 
line. 

Cited  in  notes  (9  L.  R.  A.  836)  on  excuse  for  delay  in  transportation;  (11 
L.  R.  A.  616)  on  act  of  God  as  defense;  (4  L.  R.  A.  376)  on  delivery  to  con- 
necting carrier;  (2  L.  R.  A.  252)  on  distinction  in  liability  between  carriers 
of  goods  and  carriers  of  passengers;  (19  L.R.A. (N.S.)  1013)  on  liability  of 
goods  carrier  for  loss  on  connecting  line,  due  to  its  own  negligence;  (31 
L.R.A.  (N.S.)  82)  on  liability  of  connecting  carrier  for  loss  beyond  own  line. 
Liability  of  carrier  for  goods  lost. 

Cited  in  note   (22  Am.  St.  Rep.  452)   on  liability  of  carrier  for  goods  lost. 
I  .i.s-   of   perishable  goods  by   freezing  or   other-wise. 

Cited  in  footnotes  to  Pierce  v.  Southern  P.  Co.  40  L.  R.  A.  350,  which 
holds  loss  by  freezing  not  within  exemption  from  liability  for  loss  "arising 
out  of  responsibility  as  master  over  its  agents  or  servants  incident  to  ship- 
ment;" New  York,  P.  &  N.  R.  Co.  v.  Cromwell,  49  L.  R.  A.  462,  which  holds 
railroad  company  liable  for  loss  to  perishable  goods  caused  by  insufficient  equip- 
ment of  refrigerator  cars  leased  by  it. 
—  Loss  by  delay. 

Cited  in  Nelson  v.  Great  Northern  R.  Co.  28  Mont.  327,  72  Pac.  642,  holding 
carrier  receiving  sheep  for  transportation  with  knowledge  of  snow  blockade, 
not  known  to  shipper,  cannot  plead  such  blockade  as  excuse  for  delay:  Clark 
v.  American  Exp.  Co.  130  Iowa,  260,  106  N.  W.  642,  on  the  delay  in  delivering 
goods  as  conversion. 


1  L.R.A.  702]  L.  R.  A.  CASES  AS  AUTHORITIES.  174 

Proximate  cause. 

Cited  in  Hurley  v.  Packard,  182  Mass.  218,  65  N.  E.  64,  holding  employee  not 
liable  to  master  for  loss  from  cancelation  of  order  due  to  employee's  delay 
in  transmitting  same. 

Cited  in  note    (31  L.R.A.(N.S.)    1133)   on  delaying  run  of  logs  as  proximate 
cause  of  loss  from   high   water,  wind  or  other   similar   cause. 
Measure  of  damages,   for  breach  of  contract  of  carriage. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Coolidge,  73  Ark.  117,  67  L.R.A. 
557,  108  Am.  St.  Rep.  21,  83  S.  W.  333,  3  A.  &  E.  Ann.  Cas.  582,  holding  the 
measure  of  damages  for  delay  in  transporting  goods  is  the  difference  between 
the  market  value  of  the  goods,  at  the  time  and  place  when  they  should  have 
been  delivered,  and  wrhen  they  were  delivered,  with  interest;  Leavitt  v.  Fiber- 
loid  Co.  196  Mass.  446,  15  L.R.A.(N.S.)  865,  82  N.  E.  682,  on  the  measure  of 
damages  for  breach  of  warranty.  ' 

1  L.  R.  A.  704,  NUSSBAUM  v.  NORTHERN  INS.  CO.  37  Fed.  524. 
Change  of  title  or  possession   as  vitiating  policy. 

Cited  in  footnote  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds 
policy  insuring  unspecified  personal  property  to  certain  amount  not  avoided 
by  chattel  mortgage  thereafter  executed,  but  extinguished  before  loss. 

Cited   in  notes    (38   L.   R.   A.   565  )^    on   mortgage  as   effecting   change   of   title 
or  interest  in  insured   property;    (9  L.  R.  A.   627)    on  clause  of  forfeiture  for 
sale  of  insured  property. 
Deed   for   security   of   debt   as   creating  lien. 

Cited  in  Re  Moore,  146  Fed.  189,  on  a  deed  given  as  security  for  debt  only 
as  creating  merely  a  lien. 

1  L.  R.  A.  708,  BROCKWAY  v.  PATTERSON,  72  Mich.   122,  40  N.  W.   192. 

Action  against  sureties  on  bond  to  enforce  judgment  in  Brockway  v.  Petted, 
79  Mich.  620,  7  L.  R.  A.  740. 
Civil  damage  act. 

Cited  in  Judson  v.  Parry,  38  Wash.  39,  80  Pac.  194,  holding  one  injured  by 
accidental  discharge  of  a  revolver  during  a  saloon  fight  between  intoxicated 
persons,  may  maintain  an  action  against  the  saloon  keeper  who  caused  the 
intoxication,  under  the  statute. 

Cited  in  notes  (3  L.  R.  A.  327)  on  damages  for  causing  death  by  sale  of  in- 
toxicating drinks;  (10  L.  R.  A.  80)  on  decisions  under  liquor  laws  of  Mich- 
igan; (13  L.R.A.  (N.S.)  1161)  on  necessity  that  intoxication  be  proximate 
cause  of  injury  to  support  recovery  under  civil-damage  act;  (85  Am.  St.  Rep. 
450)  on  liability  of  liquor  sellers  for  acts  of  intoxicated  persons. 
Death  as  injury  to  means  of  support. 

Followed  in  Gran  v.  Houston,  45  Neb.  826,  64  N.  W.  245,  holding  liability 
•of  sureties  on  liquor  dealer's  bond  for  "all  damages,"  to  extend  to  loss  of  sup- 
port by  death  of  husband;  Gardner  v.  Day,  95  Me.  563,  50  Atl.  892,  holding  li- 
quor dealer  liable  for  loss  of  support  by  death  of  husband  by  reason  of  in- 
toxication. 

'Cited  in  American  Surety  Co.  v.  State,  46  Ind.  App.  132,  91  N.  E.  624, 
folding  that  saloon-keeper's  death  does  not  discharge  liability  of  his  surety. 

Cited  in  note    (7  L.  R.  A.  301)   on  action  by  wife  for  damages  for  injury  to 
Tier    means    of    support. 
—  Computing  damages. 

Cited   in   Merrimane  v.  Miller,   157  Mich.   285,   25  L.R.A.(N.S.)    588,   118   N. 


175  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  712 

W.  11,  holding  that  in  computing  damages  by  death  of  husband,  the  mortality 

tables  are  competent  evidence. 

Natural  and  probable  result  of  Intoxication. 

Approved  in  Eddy  v.  Court  right,  91  Mich.  268,  51  N.  W.  887,  holding  saloon- 
keeper liable  to  mother  for  drowning  of  son  while  intoxicated;  Thomas  v.  Dans- 
by,  74  Mich.  402,  41  N.  W.  1088,  holding  saloonkeeper  liable  to  wife  for  broken 
leg  received  by  husband  at  hands  of  intoxicated  man;  McXary  v.  Blackburn, 
180  Mass.  143,  61  N.  E.  885,  upholding  refusal  of  court  to  instruct  jury  that 
liquor  dealer  was  only  liable  for  proximate  and  "necessary"  result  of  sale  of 
liquor  to  son  of  plaintiff. 

Cited  in  Currier  v.  McKee,  99  Me.  367,  59  Atl.  442,  3  A.  &  E.  Ann.  Cas.  57, 
holding  that  a  saloon  keeper  was  liable  for  death  of  son  of  plaintiff,  where  the 
son  while  intoxicated  was  killed  by  another  to  protect  himself  from  assault 
by  the  son;  Bistline  v.  Key  Bros.  134  Iowa,  181,  13  L.R.A.(N.S.)  1165,  111  N. 
W.  422,  ]3  A.  &  E.  Ann.  Cas.  196;  Dice  v.  Sherberneau,  152  Mich.  604,  16 
L.R.A.  (X.S.)  767,  116  N.  W.  416, — holding  that  under  the  civil  damage  law, 
in  an  action  by  the  wife  for  damages  arising  from  the  suicide  of  the  husband 
while  intoxicated,  it  is  not  essential  to  show  that  intoxication  was  the  cause 
of  the  suicide. 

Cited  in  footnote  to  Gage  v.  Harvey,  43  L.  R.  A.  143,  which  holds  theft  of 
money  from  pockets  of  intoxicated  party  not  damage  within  contemplation  of 
statute. 

Limited  in  Dennison  v.  Van  Wormer,   107  Mich.  463,  65  N.  W.  274,  holding 
saloonkeeper  not   liable  for  loss  of  support  by  reason  of  arrest  and  conviction 
for  burglary  of  intoxicated  person. 
Legality  of  sale  aa  affecting:  liability. 

Cited  in  Bell  v.  Zelmer,  75  Mich.  72,  42  N.  W.  606,  suggesting  that  liability 
of  sureties  upon  liquor  dealer's  bond  arises  only  in  case  of  unlawful  sale. 

—  Evidence  as  to  legality  of  sale. 

Cited  in  Doty  v.  Postal,  87  Mich.  148,  49  N.  W.  534,  holding  habit  of  person 
to  become  intoxicated  admissible  in  action  on  bond  of  liquor  dealer  selling  to  him. 
Effect  of  negligence  of  intoxicated  person. 

Cited  in  Wright  v.  Treat,  83  Mich.  115,  47  N.  W.  243,  holding  negligence  of 
intoxicated  person  immaterial  in  action  by  his  wife  on  liquor  dealer's  bond. 

—  Proof  of  habits  of  injured  man. 

Cited   in   Eastwood  v.   Klamm,   S3   Xeb.  550,  120  N.  W.   149,  holding  that   it 
was  not  error  to  admit  evidence  of  the  husband's  character  while  intoxicated, 
or   his   ability   to   work   as   affected   by   the   injury,   in   action   by   wife   against 
saloon  keeper. 
Disqualification   of  juror   by   prejudice. 

Followed  in  People  v.  Wheeler,  96  Mich.  4,  55  N.  W.  371,  holding  juror  who 
thinks  he  is  prejudiced  against  all  persons  selling  liquor,  legally  or  illegally, 
disqualified,  although,  after  prompting,  he  states  that  he  would  not  be  preju- 
diced in  a  trial  of  rights  at  law. 

1  L.  R.  A.  712,  POOL  v.  ANDERSON,  116  Ind.  88,  18  N.  E.  445. 
Implied  contract  by  party  signing  in  blank  before  issue. 

Followed  in  Moorman  v.  Wood,  117  Ind.  148,  19  N.  E.  739,  holding  such  ac- 
commodation indorser  discharged  by  assignment  of  judgment  on  note,  the 
judgment  having  become  lien  on  land  of  maker;  De  Pauw  v.  Bank  of  Salem, 
126  Ind.  555,  10  L.  R.  A.  47,  25  N.  E.  705,  26  N.  E.  151,  holding  indorsee  dis- 
charged by  failure  to  give  notice  of  dishonor. 

Cited  in  Roanoke  Grocery  &  Mill.   Co.  v.  Watkins,  41   W.  Va.  789,  24  S.  E. 


1  L.R.A.  712]  L.  R.  A.  CASES  AS  AUTHORITIES.  176 

612,  holding  parol  evidence  admissible  to  determine  indorser's  liability  as  orig- 
inal maker,  guarantor,  or  indorser;  Roads  v.  Webb,  91  Me.  414,  64  Am.  St. 
Rep.  246,  40  Atl.  128,  holding  implied  contract  prima  facie  only,  and  rebuttable 
by  proper  evidence. 

Cited  in  footnote  to  National  Bank  v.  Dorset  Marble  Co.  2  L.  R.  A.  428,  which 
holds  one  indorsing  in  blank  prima  facie  liable  as  maker. 

Cited   in   notes    (18   L.R.A.   35)    on   liability   of   stranger   who   indorses   com- 
mercial paper  before  delivery;    (14  Am.  St.  Rep.  794,  72  Am.  St.  Rep.  682,  683) 
on  effect  of  indorsement  by  stranger  before-  delivery. 
Ron-negotiable    instrument. 

Cited  in  Oyler  v.  McMurray,  7  Ind.  App.  649,  34  N.  E.  1004,  holding  accom- 
modation indorser  bound  by  stipulation  in  note  waiving  defense  of  extension 
of  time  to  maker;  Woody  v.  Haworth,  24  Ind.  App.  638,  57  N.  E.  272,  hold- 
ing such  indorsement  by  partnership  an  "indebtedness"  of  firm  within  meaning 
of  dissolution  agreement  imposing  it  upon  one  member. 

Cited   in   footnote   to   Witty   v.   Michigan  Mut.   L.   Ins.   Co.   8   L.   R.   A.   365r 
which  holds  that  blanks  for  amount  and  place  of  payment  in  body  of  note  do  not 
render    instrument   non-negotiable    where    figures    appear    at   top    of    paper    and 
signature  at  bottom. 
Indorsement  as   warranty   of  payment. 

Followed  in  Hoffman  v.  Hollingsworth,  10  Ind.  App.  355,  37  N.  E.  960r 
holding  indorser  liable  on  inland  bill  of  exchange  payable  at  bank,  after  dis- 
honor and  due  notice. 

Cited  in  Matchett  v.  Anderson  Foundry  &  Mach.  Works,  29  Ind.  App.  209,  94 
Am.  St.  Rep.  272,  64  N.  E.  229,  holding  indorser  of  non-negotiable  note  not  lia- 
ble where   holder   fails   to   use   due   diligence   in  collecting   from   maker. 
Indorser's  right  to  waive  presentment  and  notice  of  nonpayment. 

Followed  in  Pape  v.  Randall,  18  Ind.  App.  59,  47  N.  E.  530.  holding  present- 
ment and  notice  of  nonpayment  unnecessary  to  fix  indorser's  liability,  when 
waived. 

1   L.  R.  A.  715,  THOMAS  v.  STEWART,   117   Ind.  50,   18  N.  E.  505. 
Subrogation   of  snrety  to   rights   of   creditor. 

Approved  in  Opp  v.  Ward,  125  Ind.  243,  21  Am.  St.  Rep.  220,  24  N.  E.  974,. 
holding  guarantor  on  lease  paying  judgment  for  rent  entitled  to  recover  same 
from  surety  on  appeal  bond;  Zimmerman  v.  Gaumer,  152  Ind.  562,  53  N.  E.  829, 
holding  surety  not  entitled  to  enforce  judgment  in  which  he  is  codefendant,  prior 
to  adjudication  of  suretyship;  Young  v.  Stevens,  28  Ind.  App.  656,  63  X.  E.  721, 
holding  surety,  codefendant  in  creditor's  judgment  against  principal,  bound 
by  adjudication  therein  as  to  validity  of  mortgage  by  principal;  Hawker  v. 
Moore,  40  W.  Va.  52,  20  S.  E.  848,  setting  aside  fraudulent  conveyance  by- 
cosurety  and  subjecting  property  to  lien  of  half  the  amount  of  judgment  for 
which  he  was  liable  by  contribution. 

Cited  in  Hubbard  v.  Security  Trust  Co.  38  Ind.  App.  159,  78  N.  E.  79, 
holding  that  a  surety  on  a  delivery  bond  is  subrogated  to  the  rights  of  the 
judgment  creditor  as  against  receiver  of  judgment  debtor,  where  surety  is  com- 
pelled to  pay  bond. 

Cited  in  note    (68  L.R.A.  550)   on  extinction  of  judgments  against  principals 
by  sureties'  payment. 
Xotice   of   suretyship    as   affecting   equities. 

Distinguished  in  Frank  v.  Traylor,  130  Ind.  148,  16  L.  R.  A.  119,  29  N.  R. 
486,  holding  judgment  assigned  to  surety,  though  codefendant  therein,  gives- 


177  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  71» 

prior  equity  in  land  subject  thereto,  over  subsequent  judgment  in  hands  of  pur- 
chaser   without    notice. 

1   L.  R.  A.  717,  WISCONSIN  RIVER  LOG  DRIVING  ASSO.  v.  D.   F.   COM- 

STOCK  LUMBER  CO.  72  Wis.  464,  40  N.  W.   146. 
Who  is  owner. 

Cited  in  Keith  v.  Maguire,  170  Mass.  212,  48  N.  E.  1090,  holding  that  one 
who  stores  goods  in  his  own  name  is  "owner"  in  proceeding  for  sale  to  pay 
storage,  requiring  notice;  Merrill  R.  &  Lighting  Co.  v.  Merrill,  119  Wis.  254, 
96  N.  W.  686,  holding  land  leased  by  railway  company  for  five  years  "owned'* 
within  meaning  of  taxation  statute. 
Driving  intermixed  log*. 

Cited  in  E.  W.  Backus  Lumber  Co.  v.  Scanlon-Gipson  Lumber  Co.  78  Minn. 
442,  81  N.  W.  216,  holding  compensation  for  driving  logs  of  necessity,  because 
intermingled,  could  be  recovered. 

Cited  in  footnote  to  New  Orleans  &  N.  R.  Co.  v.  McEwen,  38  L.  R.  A.  134, 
which  holds  party  towing  logs  not  liable  for  loss  occasioned  by  uncontrollable 
events. 

Act   authorizing  driving  of  logs. 

Cited  in  East  Hoquiam  Boom  &  Logging  Co.  v.  Neeson,  20  Wash.  149,  54  Pae. 
1001,    holding   act    authorizing    corporation   to    charge    for    services    in    sluicing 
logs  through   dam   and   to   impress   lien   on   them   therefor   valid. 
Stream  as   highway. 

Cited  in  footnote  to  Olive  v.  State,  4  L.  R.  A.  33,  which  holds  stream  not 
public  highway,  as  matter  of  law,  because  suitable  for  floating  logs. 

Cited  in  notes  (3  L.R.A.  610)  on  navigable  waters  as  public  highways;  (70 
L.R.A.  279)  on  use  of  navigable  stream. 

1  L.  R.  A.  719,  NELSON  v.  HARRINGTON,  72  Wis.  591,  7  Am.  St.  Rep.  900,  40 

N.    W.    288. 
Who  is  a  physician. 

Cited  in  State  v.  Mylod,  20  R.  I.  640,  41  L.  R.  A.  430.  40  Atl.  753,  holding 
Christian  Scientist,  by  praying  and  giving  book  on  Christian  Science,  was  not 
engaged  in  "practice  of  medicine:"  Kansas  City  v.  ±$aird,  92  Mo.  App.  208, 
holding  Christian  Scientist  not  a  physician  within  meaning  of  ordinance. 

Cited  in  note   (98  Am.  St.  Rep.  757,  758)   on  practice  of  clairvoyance. 
Dnty  of  physician. 

Cited  in  Allen  v.  Voje,  114  Wis.  22,  89  N.  W.  924,  holding  physician  liable 
for  departing  from  usual  and  long-established  mode  of  treatment;  Whitesell  v. 
Hill,  101  Iowa,  636,  37  L.  R.  A.  839,  70  N.  W.  750,  holding  physician  required 
to  exercise  ordinary  skill  of  physicians  in  similar  localities;  Martin  v.  Court- 
ney, 75  Minn.  258,  77  N.  W.  813,  holding  allopathic  physician's  treatment  of 
disease  should  be  tested  by  treatment  of  that  school;  Force  v.  Gregory,  63  Conn. 
169,  22  L.  R.  A.  345,  38  Am.  St.  Rep.  371,  27  Atl.  1116,  holding  homeopathic 
physician  should  be  judged  by  the  usual  and  established  method  of  his  school ; 
Barney  v.  Pinkham,  29  Neb.  352,  26  Am.  St.  Rep.  389,  45  N.  W.  694,  holding 
veterinary  surgeon  only  bound  to  use  skill  of  those  engaged  in  that  calling; 
Longan  v.  Weltmer,  180  Mo.  333,  64  L.  R.  A.  973,  79  S.  W.  655,  holding  magnetic 
healer  liable  for  injuries  caused  by  treatment  of  patient,  if  he  undertakes  to 
cure  patient's  malady ;  Baker  v.  Hancock,  29  Ind.  App.  460,  63  N.  E.  323,  holding 
specialist  in  treatment  of  cancer  must  possess  degree  of  knowledge  and  skill 
usually  possessed  by  physicians  holding  themselves  out  as  such  specialists. 
L.R.A.  Au.  Vol.  I.— 12. 


1  L.R.A.  719]  L.  R.  A.  CASES  AS  AUTHORITIES.  178 

Cited    in   notes    (37    L.    R.    A.    837)    on    the    care    and    skill    a    physician    or 
surgeon  must  exercise  is  that  of  his  own  school;    (37  L.  R.  A.  83.))   on  what  are 
proper  care  and  skill  which  a  physician  or  surgeon  must  exercise. 
Malpractice. 

Cited  in  Wurdemann  v.  Barnes,  92  Wis.  208,  66  N.  W.  Ill,  holding  coun- 
terclaim for  malpractice  by  physician  not  sustained  by  evidence;  Grainger  v. 
Still,  187  Mo.  214,  70  L.R.A.  55,  85  S.  W.  1114,  holding  that  by  proving  that 
defendant  treated  plaintiff  for  hip  dislocation  and  violently  wrenched  the  liga- 
ments, a  prima  facie  case  of  malpractice  is  shown;  Rylander  v.  Laursen,  124 
Wis.  6,  102  X.  W.  341,  on  the  usage  of  others  in  the  same  business  as  affecting 
test  of  care  in  tort  actions. 

Cited  in  notes  (14  L.  R.  A.  429)  on  liability  for  malpractice  of  physicians 
serving  gratuitously  or  employed  by  third  party;  (2  L.  R.  A.  588)  on  physi- 
cians and  surgeons;  liability  for  neglect  of  duty;  (11  L.  R.  A.  700)  on  liability 
of  physician  for  negligent  treatment  and  want  of  skill;  (93  Am.  St.  Rep.  668) 
on  liability  of  physicians  and  surgeons  for  negligence  and  malpractice. 
—  Expert  ^vi tiiess. 

Cited  in  Longan  v.  Weltmer,  180  Mo.  333,  64  L.R.A.  973,  103  Am.  St.  Rep. 
573,    79    S.   W.   655,   holding    physicians    who   did   not   hold   themselves    out   as 
magnetic  healers  were  competent  witnesses  as  to  whether  the  treatment  which 
the  plaintiff  underwent  was  proper. 
Counsel's  comment  on  failure  to  call  \vitness. 

Cited  in  Holtz  v.  State,  76  Wis.  109,  44  N.  W.  1107,  holding  testimony  explain- 
ing reason  for  not  calling  witnesses  proper  to  forestall  comment  upon  their  ab- 
sence; Lunsford  v.  Dietrich,  93  Ala.  572,  30  Am.  fSt.  Rep.  79,  9  So.  308.  and  Ala- 
bama G.  S.  R.  Co.  v.  Frazier,  93  Ala.  50,  30  Am.  St.  Rep.  28,  9  So.  303,  holding 
exception  to  argument  of  counsel  not  available  on  appeal. 
Pleading;  canse  of  action  for  tort  arising  out  of  contract. 

Cited  in  Rideout  v.  Milwaukee,  L.  S.  &  W..R.  Co.  81  Wis.  238,  51  X.  W.  439, 
holding  that  complaint  stated  cause  of  action  ex  dcttcto,  where  it  alleged  that 
negligence  in  carriage  of  stock  caused  injury;  Lawton  v.  Waite,  103  Wis.  254, 
45  L.  R.  A.  620,  79  N.  W.  321,  holding  complaint  in  tort  sufficient,  which 
alleges  plaintiff  a  passenger  and  recites  acts  that  constitute  negligence;  Lane 
v.  Boicourt,  128  Ind.  421,  25  Am.  St.  Rep.  442,  27  N".  E.  Ill,  holding  that  action 
for  malpractice  may  be  on  contract;  Nelson  v.  Great  Northern  R.  Co.  28  Mont. 
312,  72  Pac.  642,  holding  that  contract  may  be  pleaded  as  inducement  in  ac- 
tion for  negligence  in  transportation  of  stock;  Cowan  v.  Western  U.  Teleg.  Co. 
122  Iowa,  385,  64  L.  R.  A.  550,  98  N.  W.  281,  holding  action  for  negligence 
in  delivery  of  telegram  not  changed  to  action  ex  contract u  by  pleading  con- 
tract as  inducement;  Miller  v.  Mintum,  73  Ark.  187,  83  S.  W.  918,  holding 
that  an  action  against  a  physician  for  malpractice  sounds  in  tort  though  the 
defendant  promised  skilful  treatment;  Boehrer  v.  Juergens  &  A.  Co.  133  Wis. 
430,  113  N.  W.  655,  on  the  sufficient  statement  of  a  cause  of  action. 

1  L.  R.  A.  725,  CLARKE  v.  PROVIDENCE,  16  R.  I.  337,  15  Atl.  765,  766. 
Private  rights  in  public  lands  and  waters. 

Cited  in  Mowry  v.  Providence,  16  R.  I.  423,  16  Atl.  511,  holding  that  city 
could  not  be  enjoined  from  encroaching  on  promenade  or  cove  basin;  Shively  v. 
Bowlby,  152  U.  S.  20,  38  L.  ed.  339,  14  Sup.  Ct.  Rep.  548,  holding  donee  of 
land  claim  has  no  title  below  high-water  mark;  People  ex  rel.  Moloney  v.  Kirk. 
162  111.  153,  53  Am.  St.  Rep.  277,  45  N.  E.  830,  holding  act  to  alienate  sub- 
merged lands  valid;  Stanwood  v.  Maiden,  157  Mass.  18,  16  L.  R.  A.  592,  31  N. 


179  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  725 

E.  702,  holding  that  damages  would  not  lie  for  discontinuing  part  of  a  street; 
State  ex  rel.  Johnson  v.  Deer  Lodge,  19  Mont.  585,  49  Pac.  147,  holding  prop- 
erty not  taken  for  public  use  by  vacation  of  public  road;  Woodcliff  Land 
Improv.  Co.  v.  New  Jersey  Shore  Lime  R.  Co.  72  X.  J.  L.  138,  60  Atl.  44, 
holding  that  the  title  of  party  receiving  grant  of  lands  under  public  streams 
is  as  absolute  as  the  grant  imports;  Providence  v.  Comstock,  27  R.  I.  552, 
65  Atl.  307,  holding  that  one  owning  land  on  the  cove  has  no  riparian  rights 
where  the  land  is  separated  from  the  cove  by  other  land. 

Cited   in  notes    (40   L.R.A.   605)    on   right   of   owner   of  upland  to  access   to 
navigable  water;    (23  Eng.  Rul.  Cas.   186)    on  ownership  of   riparian  owner  to 
thread  of  stream. 
•— —  Of  abntters  and  adjacent  owners  to  parks  and  public  grronnds. 

Cited  in  East  Chicago  Co.  v.  East  -Chicago,  171  Ind.  662,  87  N.  E.  17,  holding 
that  persons  living  or  owning  land  near  a  park  have  no  vested  right  in  such 
public  park  and  can  not  complain  of  a  sale  thereof. 

Cited  in  footnote  to  Douglass  v.  Montgomery,  43  L.  R.  A.  376,  holding  that 
one  with  unobstructed  view  of  park  can  maintain  action  to  prevent  its  destruc- 
tion. 

Distinguished  in  Davenport  v.  Buffington,  46  L.  R.  A.  380,  38  C.  C.  A.  457, 
D7  Fed.  238,  holding  Indian  nation  could  not  sell  to  private  persons  land 
it  had  dedicated  to  a  town  for  park,  after  acceptance  and  use;  Rowzee  v.  Pierce, 
75  Miss.  858,  40  L.  R.  A.  404,  footnote  p.  402,  65  Am.  St.  Rep.  625,  23  So.  307, 
holding  that  donors  of  land  for  certain  public  use  may  enjoin  city  authorities 
from  putting  it  to  other  public  uses. 
Title  to  lands  under  public  waters. 

Cited  New   York,  N.  H.  &  H.  R.   Co.  v.  Horgan,  25  R.   I.  411,  56  Atl.   179, 
holding  that  in  the  state  the  title  to  land  under  tide  waters  is  in  the  general 
assembly;   Providence  v.  Comstock,  27  R.  I.  553,  65  Atl.  307,   holding  that  the 
lands  under  tide  waters  were  owned  by  the  city. 
Right  of  fishery. 

Cited  in  Payne  &  Butler  v.  Providence  Gas  Co.  31  R.  I.  321,  77  Atl.  145, 
Ann.  Cas.  1912  B,  65,  holding  that  law  providing  for  leasing  of  land  covered  by 
public  waters  for  private  oyster  bed  does  not  violate  constitutional  right  of 
fishery. 

Cited  in  notes   (9  L.  R.  A.  807.  60  L.  R.  A.  501)   on  right  to  fish:    (39  L.  R.  A. 
583)   on  governmental  control  over  right  of  fishery;    (60  L.  R.  A.  519)   on  shell 
fisheries.    • 
Dedication  for  public  use. 

Cited  in  footnotes  to  Sturmer  v.  County  Court,  36  L.  R.  A.  300,  which  holds 
land  long  used  as  public  square  must  be  considered  as  dedicated;  Archer  v. 
Salinas  City,  16  L.  R.  A.  145,  which  holds  land  dedicated  as  park  by  record- 
ing map  so  designating  it,  and  selling  land  according  to  map;  Campbell  v. 
Kansas  City,  10  L.  R.  A.  593,  which  holds  that  city  can  prevent  use  of  land 
for  graveyard,  dedicated  for  that  purpose. 

Cited   in  notes    (13   L.  R.  A.  252)    on  dedication  of  lands  for   public  parks; 
(6  L.  R.  A.  261)   on  estate  created  by  dedication  of  land  to  public  use. 
Authority   of  legislature. 

Cited  in  Henry  v.  Cherry,  30  R.  I.  30,  24  L.R.A.(N.S.)    991,  73  Atl.  97,  on 
the  authority  of  the  legislature  with  regard  to  private  rights. 
Over    parks. 

Cited  in   Clingman  v    World's   Columbian  Exposition,   3  111.  C.  C.  462,  hold- 


1  L.R.A.  725]  L.  R.  A.  CASES  AS  AUTHORITIES.  180 

ing  that  the  legislature  can  authorize  a  municipality  to  change  use  of,  or  sell 
lands  owned  in  fee,  for  park  purposes. 

Cited  in  notes  (25  L.R.A.  (N.S. )  988)  on  what  use  of  squares,  parks,  or 
commons  is  consistent  with  purpose  of  dedication;  (27  L.R.A.  (N.S.)  940)  on 
power  of  legislature  to  control  use  to  which  property  taken  for  park  or  square 
may  be  put. 

1  L.  R.  A.  728,  WESTERN  U.  TELEG.  CO.  v.  COOPER,'  71  Tex.  507,   10  Am. 

St.  Rep.  772,  9  S.  W.  598. 
Mental  suffering-  as  element  of  damage. 

Cited  in  Reese  v.  Western  U.  Teleg.  Co.  123  Ind.  304,  7  L.  R.  A.  587,  24  N.  E. 
163;  Young  v.  Western  U.  Teleg.  Co.  107  N.  C.  378,  9  L.  R.  A.  G72,  22  Am. 
St.  Rep.  883,  11  S.  E.  1044;  Western  U.  Teleg.  Co.  v.  Gavin..  30  Tex.  Civ.  App. 
155,  70  S.  W.  229, —  holding  that  damages  for  mental  anguish  for  failure  to 
deliver  telegram  promptly  are  recoverable;  Bierhaus  v.  Western  U.  Teleg. 
Co.  8  Ind.  App.  251,  34  N.  E.  581,  holding  telegraph  company  liable  for  all 
damages  naturally  and  proximately  growing  out  of  breach  of  duty  for  failure 
to  deliver  telegram;  Western  U.  Teleg.  Co.  v.  Henderson,  89  Ala.  519,  18  Am.  St_ 
Rep.  148,  7  So.  419,  holding  nondelivery  of  telegram  proximate  cause  of  men- 
tal anguish;  Renihan  v.  Wright,  125  Ind.  545,  9  L.  R.  A.  517,  21  Am.  St.  Rep.. 
249,  25  N.  E.  822,  holding  recoverable,  damages  for  mental  suffering  caused 
by  not  safely  keeping  corpse;  Western  U.  Teleg.  Co.  v.  Lovett.  24  Tex.  Civ.  App. 
85,  58  S.  W.  204;  Pacific  Exp.  Co.  v.  Black,  8  Tex.  Civ.  App.  366.  27  S.  W^ 
830;  Missouri  P.  R.  Co.  v.  IMartino.  2  Tex.  Civ.  App.  643,  18  S.  W.  1066;  Pull- 
man Palace  Car  Co  v.  Trimble,  8  Tex.  Civ.  App.  337,  28  S.  W.  96;  Western  U. 
Teleg.  Co.  v.  Stratemeier,  6  Ind.  App.  134,  32  X.  E.  871,  —  holding  sympa- 
thetic mental  distress  not  element  of  damages;  St.  Louis,  A.  &  T.  R.  Co.  v.. 
Sandal,  3  Tex.  App.  Civ.  Cas.  (Willson)  453,  holding  damages  for  mental  an- 
guish and  physical  pain  caused  by  nondelivery  of  telegram  recoverable;  West- 
ern U.  Teleg.  Co.  v.  Church,  57  L.  R.  A.  909,  holding  pain  in  confinement,  pro- 
longed by  absence  of  physician  through  nondelivery  of  message,  recoverable; 
Willson  v.  Northern  P.  R.  Co.  5  Wash.  627,  32  Pac.  468,  holding  that  passen- 
ger expelled  from  car  may  recover  for  humiliation  and  mental  pain:  Western 
U.  Teleg.  Co.  v.  Burris,  179  Fed.  94,  on  the  right  to  recover  mental  damage 
alone  for  failure  to  deliver  telegram;  Postal  Teleg.  &  Cable  Co.  v.  Beal.  159" 
Ala.  253,  48  So.  676,  holding  that  damages  for  mental  pain  and  suffering 
were  recoverable  for  failure  to  promptly  deliver  telegram  to  the  mother 
notifying  her  that  her  son  was  badly  injured,  where  he  was  deprived  thereby 
of  her  care;  Western  U.  Teleg.  Co.  v.  Reid,  120  Ky.  235,  70  L.R.A.  291,  85  S.  W. 
117],  holding  that  there  can  be  no  recovery  for  mental  pain  and  suffering  of 
parent  because  of  failure  to  deliver  telegram  summoning  medical  aid  to  a  sick 
child;  Western  U.  Teleg.  Co.  v.  Church,  3  Neb.  (Unof.)  34,  57  L.R.A.  007,  90 
X.  W.  878,  holding  damages  for  mental  pain  and  suffering  caused  by  failure  to 
deliver  telegram  are  recoverable,  where  the  urgency  of  the  message  is  known 
to  both  parties;  Barnes  v.  Western  U.  Teleg.  Co.  27  Xev.  445.  65  L.R.A.  670, 
103  Am.  St.  Rep.  776,  76  Pac.  931,  1  A.  &  E.  Ann.  Cas.  346..  holding  that 
damages  are  recoverable  for  mental  suffering  caused  by  a  tort  whether  in 
connection  with  physicial  injury  or  not;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Overton, 
101  Tex.  586,  19  L.R.A.(X.S.)  503,  HO  S.  W.  736,  holding  that  there  can  be 
no  recovery  for  mental  suffering  merely  resulting  from  sympathy  for  another's 
mental  or  physical  pain;  Dayvis  v.  Western  U.  Teleg.  Co.  ]39  X.  C.  9],  51  S.  E. 
898  (dissenting  opinion),  on  the  same  point. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Church,  57  L.  R.  A.  905,  which. 


181  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.E.A.  728 

holds  damages  for  nondelivery  of  message  promptly  may  include  allowance  for 
pain  and   suffering  during  physician's  absence. 

Cited  in  notes  (2  L.  R.  A.  767)  on  damages  for  injury  to  feelings  caused  by 
neglect  of  duty  to  deliver  message;  (13  L.  R.  A.  860)  on  damages  for  mental 
anguish  alone  are  recoverable;  (19  L.R.A.(N.S-)  500)  on  right  to  recover  for 
mental  suffering  on  account  of  another's  mental  or  physical  suffering. 

Distinguished  in  Chapman  v.  Western  U.  Teleg.  Co.  88  Ga.  764,  17  L.  R.  A. 
431,  30  Am.  St.  Rep. -183,  15  S.  E.  901;  Western  U.  Teleg.  Co.  v.  Rogers,  68 
Mi>s.  756,  13  L.  R.  A.  862,  24  Am.  St.  Rep.  300,  9  So.  823;  International  Ocean 
Teleg.  Co.  v.  Saunders,  32  Fla.  441,  21  L.  R.  A.  814,  14  So.  148;  Western  U. 
Teleg.  Co.  v.  Wood,  21  L.  R.  A.  713,  6  C.  C.  A.  453,  13  U.  S.  App.  317,  57  Fed. 
480;  Kester  v.  Western  U.  Teleg.  Co.  55  Fed.  603;  Connell  v.  Western  U.  Teleg. 
Co.  116  Mo.  49,  20  L.  R.  A.  178,  38  Am.  St.  Rep.  575,  22  S.  W.  345, —holding 
damages  for  mental  anguish  for  failure  to  promptly  deliver  telegram  not  re- 
coverable. 
Miscarriage  of  tvoman  by  reason  of  act. 

Cited  in  Sullivan  v.  Old  Colony  Street  R.  Co.  197  Mass.  517,  125  Am.  St.  Rep. 
378,  83  N.  E.  1091,  holding  that  damages  for  mental  suffering  could  not  be  based 
on  the  death  of  a  child  born  prematurely  fourteen  months  after  the  accident  and 
so  born  because  of  the  nervous  condition  of  the  woman. 

Cited  in  note  (32  L.R.A.  144)  on  elements  of  damages  in  recovery  for  mis- 
carriage. 

Distinguished  in  Morris  v.  St.  Paul  C.  R.  Co.  105  Minn.  279,  17  L.R.A.(N.S.) 
601,  117  N.  W.  500,  holding  that  when  an  injury  to  a  woman  results  in  a  mis- 
carriage she  is  entitled  to  such  damages  as  will  compensate  her  for  the  pain  and 
suffering  caused  by  the  miscarriage  but  not  for  pain  and  suffering  caused  by  loss 
of  the  child;  Prescott  v.  Robinson,  74  X.  H.  464,  17  L.R.A.(N.S.)  597,  124  Am. 
St.  Rep.  987,  69  Atl.  522,  holding  that  a  pregnant  woman  injured  by  the  negli- 
gent act  of  another  may  recover  damages  for  mental  distress  before  the  child's 
birth,  due  to  her  fear  that  it  would  be  deformed  in  consequence  of  her  injury, 
but  not  for  anxiety  after  its  birth. 
Dm  >  of  telegraph  company  in  delivery  of  message. 

Cited  in  Western  U.  Teleg.  Co.  v.  Drake,  13  Tex.  Civ.  App.  576,  36  S.  W.  786, 
holding  that  telegraph  messenger's  duty  required  going  to  residence  to  make 
delivery;  Western  U.  Teleg.  Co.  v.  Mitchell,  91  Tex.  459,  40  L.  R.  A.  211,  66 
Am.  St.  Rep.  906,  44  S.  W.  274,  holding  that  duty  of  telegraph  company  does 
not  require  delivery  to  wife  of  sendee;  Western  U.  Teleg.  Co.  v.  Newhouse,  6 
Ind.  App.  427,  33  N.  E.  800.  holding  jury  should  determine  whether  diligence  in 
delivery  of  telegram  was  shown  by  leaving  it  at  place  of  address. 

Cited  in  notes  (9  L.  R.  A.  669)  on  degree  of  diligence  required  of  telegraph 
company  in  delivery  of  message;  (15  L.  R.  A.  129)  on  duty  of  telegraph  company 
to  find  person  addressed;  (14  Am.  St.  Rep.  564)  on  rights,  duties  and  liabilities 
of  telegraph  companies;  (27  Am.  St.  Rep.  923,  925)  on  duty  of  telegraph  company 
to  find  addressee. 

Distinguished  in  Sweet  v.  Western  U.  Teleg.  Co.  139  Mich.  332,  102  N.  W.  850, 
5  A.  &  E.  Ann.  Cas.  730,  holding  that  where  a  telegram  is  sent  to  one  person  in 
care  of  another,  delivery  to  the  latter  is  sufficient. 
Mcnsnre  of  damages  for  failure  to  deliver  message. 

Cited  in  Hughes  v.  Western  U.  Teleg.  Co.  79  Mo.  App.  138,  holding  measure  of 
damages  for  failure  to  deliver  cipher  message  such  as  may  be  supposed  to  have 
been  in  contemplation  of  both  parties;  Western  U.  Teleg.  Co.  v.  Chouteau,  28 
Ok'.a.  087,  —  L.R.A.(X.S.)  — ,  115  Pac.  879,  holding  that  damages  are  not  recov- 


1  L.R.A.  728]  L.  R.  A.  CASES  AS  AUTHORITIES.  182 

erable  for  mental  distress  alone,  from  delay  in  delivering  telegram;  Southwestern 
Teleg.  &  Teleph.  Co.  v.  Solomon,  54  Tex.  Civ.  App.  311,  117  S.  W.  214,  holding 
that  death  of  woman  in  childbirth  is  not  proximate  result  of  imperfect  telephone 
service  preventing  subscriber  from  obtaining  physician. 

Cited  in  notes  (11  L.R.A.(N.S.)  499)  on  anxiety  as  element  of  damage  for  non- 
delivery, or  delay  of  telegram;  (11  L.R.A.(N.S.)  1149)  on  liability  for  continued' 
physical  suffering  of  sender  because  of  negligence  in  transmission  of  telegram-, 
(66  Am.  St.  Rep.  875)  on  damages  for  mental  suffering  from  delay  in  delivering 
telegram;  (117  Am.  St.  Rep.  314,  319)  on  elements  of  damages  recoverable  for 
failure  to  transmit  and  deliver  telegrams;  (38  L.  ed.  U.  S.  883,  886)  on  damages 
for  error  in  telegraph  message,  or  failure  to  deliver. 

Distinguished  in  S.  A.  &  A.  R.  Co.  v.  Gwynn,  4  Tex.  App.  Civ.  Gas.   (Willson) 
p.  345,  holding  action  for  damages  might  include  fee  for  medical  attendance- 
Joinder  of  liuslia  ml  and  wife  in  personal  injury  action. 

Cited  in  note  (28  Am.  St.  Rep.  79)  on  joinder  of  husband  and  wife  in  actioiv 
for  personal  injury  to  wife. 

1  L.  R.  A.  730,  GULF,  C.  &  S.  F.  R.  CO.  v.  JOHNSON,  71  Tex.  619,  9  S.  W.  G02.. 
Property  riuht  in  article  capable  of  being  used  for  u:i  in  !>l  i  n«.. 

Cited  in  footnotes  to  Edwards  v.  American  Express  Co.  63  L.R.A.  467,  which 
holds  owner's  property  right  in  machine  not  destroyed  by  mere  fact  that  it  was 
so  constructed  that  it  could  be  used  for  gambling;  Board  of  Trade  v.  L.  A.  Kin- 
sey  Co.  69  L.R.A.  59,  which  holds  property  right  in  price  quotations  gathered  by^ 
board  of  trade  not  destroyed  by  fact  that  a  large  per  cent  of  the  business  done- 
consists  of  gambling  transactions. 

1   L.  R.  A.  732,  NORTHERN  P.  R.   CO.  v.  RAYMOND,  5  Dak.   356,  2   Inters, 

Com.  Rep.  321,  40  N.  W.  538. 
Taxing-    gross    earnings. 

Cited  in  footnote  to  Cumberland  &  P.  R.  Co.  v.  State,  52  L.  R.  A.  764,. 
which  holds  tax  on  gross  receipts  of  railroad,  proportioned  to  mileage  in  state,, 
not  void. 

Cited  in  notes  (57  L.  R.  A.  59)  on  taxation  on  corporate  franchises  in  the 
United  States;  (57  L.  R.  A.  65)  on  taxation  of  railroad  and  other  companies; 
(60  L.  R.  A.  670,  673)  on  corporate  taxation  and  the  commerce  clause. 

Limited  in  Northern  P.  R.  Co.  v.  Barnes,  2  N.  D.  351,  51  N.  W.  386,  hold- 
ing act  of  March  9,  1883,  taxing  all  gross  earnings  within  territory,  valid  as  to 
local  traffic. 

1  L.  R.  A.  736,  REED  v.  MORTON,  24  Neb.  760,  8  Am.  St.  Rep.  247,  40  N.  YV. 

282. 
Alteration   of  instrument  left   blank. 

Cited  in  Dobbin  v.  Cordiner,  41  Minn.  167,  4  L.  R.  A.  336,  16  Am.  St.  Rep. 
683,  42  N.  W.  870,  holding  married  woman  estopped  to  deny  validity  of  deed 
executed  by  her  with  grantee  in  blank;  Mahoney  v.  Salsbury,  83  Neb.  493,  131 
Am.  St.  Rep.  647,  120  N.  W.  144,  holding  that  a  deed  executed  and  delivered  to 
the  grantee,  leaving  the  name  of  the  grantee  blank,  with  an  agreement  that 
another's  name  might  be  inserted  or  the  grantee  if  not,  was  valid. 

Cited  in  footnote  to  Richards  v.  Day,  23  L.  R.  A.  601,  which  holds  signer 
of  blank  bond  not  liable  in  action  between  original  parties  where  blank 
is  filled  up  with  unauthorized  terms. 

Cited  in  notes    (6  L.R.A.  470)   on  effect  of  alteration  of  written  instrument; 


183  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  744 

(86  Am.  St.  Rep.  108)    on  unauthorized  alteration  of  written  instruments;    (5 
Eng.  Rul.  Cas.  182)  on  authority  to  fill  up  blanks  in  instrument. 
Ratification  of  ng-ent's  act. 

Cited  in  Ormsby  v.  Johnson,  24  S.  D.  498,  124  N.  W.  436,  holding  grantor  by 
acceptance  of  purchase  money  estopped  to  question  validity  of  deed  with  grantee's 
name  left  blank,  as  against  grantee  whose  name  was  inserted  by  grantor's  agent. 

Cited  in  footnote  to  Thompson  v.  New  South  Coal  Co.  62  L.  R.  A.  551,  which 
holds  principal  not  estopped  from  asserting  invalidity  of  unauthorized  con- 
tract by  agent  for  sale  of  land,  by  accepting  portion  of  purchase  money. 

1  L.  R.  A.  738,  UNITED  STATES  ex  rel.  POLLOK  v.  HALL,  7  Mackey,  14. 

When  mandamus  will  lie. 

Cited  in  footnotes  to  People  ex  rel.  Daley  v.  Rice,  14  L.  R.  A.  644,  which 
holds  mandamus  will  lie  to  compel  state  canvassing  board  to  disregard  illegal 
return ;  State  ex  rel.  Fleming  v.  Crawford,  14  L.  R.  A.  253,  which  holds  sec- 
rotary  of  state  may  be  compelled  by  mandamus  to  countersign  commission 
signed  by  governor;  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188,  which 
holds  mandamus  will  not  lie  by  trustee  of  asylum  against  governor  of  terri- 
tory to  compel  him  to  sign  warrant  for  funds;  Biggs  v.  McBride,  5  L.  R.  A.  115, 
which  holds  mandamus  not  proper  proceeding  to  try  title  to  office;  Port  Royal 
Min.  Co.  v.  Hagood,  3  L.  R.  A.  841,  which  holds  mandamus  will  not  lie  to 
compel  board  of  agriculture  to  mine  prosphate  rock. 

Cited  in  notes  (3  L.  R.  A.  265)  on  mandamus  issues  only  for  public  purposes; 
(7  L.  R.  A.  105)  on  mandamus  to  enforce  a  public  duty;  (11  L.  R.  A.  763)  on 
mandamus  will  not  issue  to  control  executive  discretion;  (27  L.  R.  A.  85) 
on  right  to  inspect  public  records. 

1  L.  R.  A.  742,  JACKSON  v.  COMBS,  7  Mackey,  608. 
Duty    to    disclose    facts. 

Cited  in  Chicora  Fertilizer  Co.  v.  Dunan,  91  Md.  160,  50  L.  R.  A.  406,  footnote 
p.  401,  46  Atl.  347;  holding  silence,  with  exclusive  knowledge  of  material  facts 
affecting  value  of  subject-matter  of  contract,  not  fraudulent  concealment  in 
absence  of  fiduciary  relation. 

Cited  in  footnote  to  Opie  v.  Pacific  Invest.  Co.  56  L.  R.  A.  778,  which  holds 
indorser  of  mortgage  note  not  bound  to  disclose  to  mortgagee  value  of  property 
in  sale  of  mortgage  to  third  party  through  indorser  as  agent. 

Cited  in  note   (4  L.  R.  A.  483)   on  silence  as  fraudulent  concealment. 

1   L.  R.  A.  744,  CHICAGO  &  N.  W.  R.  CO.  v.  DEY,  2  Inters.  Com.  Rep.  325, 
35  Fed.  866. 

Supplemental    bill    to    obtain    temporary    injunction    against    enforcement    of 
alleged  evasive  schedule  in  38  Fed.  656. 
Jurisdiction    of    suit    agrainst    railroad    commissioners. 

Followed  in  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Becker,  35  Fed.  885,  retaining 
jurisdiction  of  suit  to  restrain  enforcement  of  schedule  for  switching  rates; 
Clyde  v.  Richmond  &  D.  R.  Co.  57  Fed.  437,  retaining  suit  by  receivers  of 
railroad  company  against  commissioners  to  enjoin  enforcement  of  freight  trans- 
portation schedule. 

Cited  in  Western  U.  Teleg.  Co.  v.  Myatt,  98  Fed.  355,  holding  Federal  ju- 
risdiction to  extend  to  injunction  staying  proceeding  before  state  "court  of 
visitation,"  since  latter  not  legally  a  court. 

Cited  in  note   (2  L.  R.  A.  195)   on  authority  of  railroad  commissioners. 


1  L.R.A.  744]  L.  R.  A.  CASES  AS  AUTHORITIES.  184 

Delegation    of    legislative    authority    to    commissions    and    administrative 
officers. 

Cited  in  United  States  v.  Ormsbee,  74  Fed.  209,  upholding  delegation  to 
Secretary  of  War  of  power  to  prescribe  suitable  regulations  for  use  of  canala; 
Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  149  111.  378,  24  L.  R.  A.  141,  4  Inters.  Com. 
Rep.  688,  41  Am.  St.  Rep.  278,  37  N.  E.  247,  upholding  delegation  to  commission 
of  power  to  fix  freight  and  warehouse  rates;  Dowling  v.  Lancashire  Ins.  Co.  92 
Wis.  75,  31  L.  R.  A.  116,  65  N.  W.  738,  holding  delegation  to  insurance  commis- 
sioner of  preparation  and  adoption  of  standard  policy  void;  McWhorter  v.  Pen- 
sacola  &  A.  R.  Co.  24  Fla.  474,  2  L.  R.  A.  510,  footnote  p.  504,  12  Am.  St.  Rep. 
220,  5  So.  129,  holding  delegation  of  authority  to  establish  schedule  for  pas- 
senger and  freight  rates  valid;  State  v.  Atlantic  Coast  Line  R.  Co.  56  Fla.  623, 
32  L.R.A.(N.S.)  650,  47  So.  969;  Michigan  C.  R.  Co.  v.  Michigan  R.  Commission, 
160  Mich.  363,  125  N.  W.  549, — holding  railroad  commission  act  valid;  King  v. 
Concordia  F.  Ins.  Co.  140  Mich.  268,  103  N.  W.  616,  6  A.  &  E.  Ann.  Cas.  87,  hold- 
ing a  law  unconstitutional  because  of  delegation  of  legislative  power,  which  left 
to  a  commission  the  right  to  prescribe  a  standard  insurance  policy;  St.  Louis,  I. 
M.  &  S.  R.  Co.  v.  Neal,  83  Ark.  598,  98  S.  W.  958,  holding  that  the  delegation  of 
power  to  a  commission  to  determine  a  standard  height  for  a  draw-bar  but  not 
giving  it  power  to  enforce  the  same,  is  not  a  delegation  of  legislative  power; 
Oregon  R.  &  Nav.  Co.  v.  Campbell,  173  Fed.  971,  holding  a  statute  creating  a 
railroad  commission  to  determine  and  fix  rates  was  not  unconstitutional  where 
there  was  a  right  of  appeal  to  the  courts;  Railroad  Commission  v.  Central  R.  Co. 
95  C.  C.  A.  117,  170  Fed.  238,  Reversing  161  Fed.  925,  holding  a  statute  was  not 
void  as  a  delegation  of  legislative  power  which  gave  the  state  railroad  commis- 
sion power  to  change  rates  fixed  by  statute,  from  time  to  time  as  conditions 
changed;  State  v.  Atlantic  Coast  Line  R.  Co.  56  Fla.  623,  47  So.  969,  holding 
that  a  delegation  of  merely  administrative  powers  to  a  commission  is  not  invalid 
as  a  delegation  of  legislative  power,  where  it  involves  the  exercise  of  no  amount 
of  discretion;  Southern  R.  Co.  v.  Meltor,  133  Ga.  290,  65  S.  E.  665;  State  ex  rel. 
Taylor  v.  Missouri  P.  R.  Co.  76  Kan.  474,  92  Pac.  606,— holding  that  a  board 
which  is  merely  administrative  within  the  bounds  prescribed  by  law  has  no 
legislative  power  delegated  to  it;  Saratoga  Springs  v.  Saratoga  Gas,  Electric 
Light  &  P.  Co.  191  N.  Y.  145,  18  L.R.A.(N.S.)  723,  83  N.  E.  693,  14  A.  &  E.  Ann. 
Cas.  606,  Reversing  112  App.  Div.  203,  107  N".  Y.  Supp.  341,  holding  a  commission 
which  is  to  fix  the  reasonable  maximum  rate,  within  the  limits  prescribed  by  law, 
"has  no  legislative  powers  delegated  to  it. 

Cited  in  footnotes  to  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  24  L.  R.  A.  141,  which 
holds  delegation  of  power  to  fix  freight  rates  constitutional,  where  schedule  is 
only  prima  facie  evidence  of  reasonableness;  State  ex  rel.  Tompkins  v.  Chi- 
cago, St.  P.  M.  &  0.  R.  Co.  47  L.  R.  A.  569,  which  holds  commissioners  au- 
thorized, under  "general  supervision,"  to  compel  erection  and  maintenance  of 
station  at  point  where  needed. 

Cited  in  notes    (18  L.R.A.(N.S.)   714)   on  power  of  legislature  to  delegate  to 
commission  right  to  fix  rates  of  public  service  corporation;    (32  L.R.A. (N.S.) 
640,  648)   on  delegation  of  power  to  regulate  carriers. 
Legality  of  imposed  schedule  of  rates. 

Followed  in  Chicago,  B.  &  Q.  R.  Co.  v.  Dey,  38  Fed.  663,  holding  validity  of 
schedule  to  be  tested  by  application  to  entire  traffic,  and  not  by  effect  as  ap- 
plied merely  to  local  traffic  in  connection  with  other  system  of  charges  outside 
state. 

Approved  in  Spring  Valley  Waterworks  v.  San  Francisco,  82  Cal.  314,  6  L. 
R.  A.  759,  16  Am.  St.  Rep.  116,  22  Pac.  910,  holding  void  an  ordinance  arbitrarily 


185  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  744 

and  without  investigation  reducing  water  rates  to  point  below  profit  making; 
San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  582,  38  L.  R.  A.  468,  62  Am.  St.  Rep. 
261,  50  Pac.  633,  holding  valid  ordinance  reducing  rates  so  as  to  yield  3£  per 
cent  income;  Buffalo  v.  Collins  Bakery  Co.  24  Misc.  748,  53  N.  Y.  Supp.  968, 
holding  void  ordinance  prescribing  weight  of  5  cent  loaf  of  bread;  Pensacola. 
&  A.  R.  Co.  v.  State,  25  Fla.  330,  3  L.  R.  A.  668,  2  Inters.  Com.  Rep.  530,  5  So. 
833,  holding  void  schedule  of  rates  which  fail  to  pay  operating  expenses. 

Cited  in  Re  Arkansas  Rate  Cases,  187  Fed.  304,  holding  that  there  is  no  pre- 
sumption of  reasonableness  arising  from  fact  that  rates  are  no  lower  than  those 
in  other  states;  Prentis  v.  Atlantic  Coast  Line  R.  Co.  211  U.  S.  229,  53  L.  ed.  160,. 
29  Sup.  Ct.  Rep.  67,  holding  that  whether  rates  are  unreasonable  and  confisca- 
tory  depends  upon  the  valuation  of  the  property,  the  income  derived  from  the 
rate,  and  the  proportion  between  the  two,  which  is  a  matter  of  fact  to  be  de- 
termined by  court;  Spring  Valley  Water  Co.  v.  San  Francisco,  165  Fed.  677,  on 
the  finality  of  the  rates  fixed  by  water  commissioners;  Re  Arkansas  R.  Rates, 
168  Fed.  732,  holding  that  what  constitutes  a  reasonable  rate  must  depend  upon- 
the  facts  of  each  case,  and  cannot  be  determined  without  reference  to  the  interests- 
of  the  public;  Chicago,  R.  I.  &  P.  R.  Co.  v.  State,  24  Okla.  372,  24  L.R.A.(N.S.) 
395,  103  Pac.  617,  holding  that  the  railroad  commissioners  could  not  require  the 
railroad  to  keep  an  operator  at  a  station  where  not  necessary  for  safe  movement 
of  trains  and  where  commercial  receipts  are  inadequate;  Coal  &  Coke  R.  Co.  v. 
Conley,  67  W.  Va.  197,  67  S.  E.  613,  holding  two  cent  passenger  rate  act  void, 
where  it  reduces  net  earnings  on  passenger  and  freight  traffic  to  less  than  two 
and  a  half  per  cent,  on  money  invested;  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  v.  Rail- 
road Commission,  127  La.  669,  53  So.  890,  holding  freight  rate  on  sugar  cane 
unreasonable,  where  it  would  be  barely  sufficient  to  pay  actual  cost  of  moving 
cane. 

Cited  in  notes  (9  L.  R.  A.  755)  on  state  railroad  commission;  regulation 
of  rates;  (33  L.  R.  A.  179)  on  state  power  to  regulate  carrier's  rates;  (3  L.  R. 
A.  238)  on  discrimination  against  foreign  railroads;  (44  L.  ed.  U.  S.  418)  on  rea- 
sonableness of  state  limitation  of  railroad  rates;  (62  Am.  St.  Rep.  295,  298,  299,. 
300)  on  reasonableness  of  rates. 

Disapproved  in  Southern  P.  R.  Co.  v.  Railroad  Comrs.   78  Fed.  261,  hoi  "ing- 
unconstitutional   traffic  regulation  which   reduces   rates  below   capacity  to   earn, 
fair  return  on  investment. 
Injunctions. 

Cited  in  Capital  City  Gaslight  Co.  v.  Des  Moines,  72  Fed.  839,  holding  pre- 
liminary injunction  against  enforcement  of  ordinance,  prima  facie  reasonable,, 
will  not  issue  in  absence  of  proof  of  practically  irreparable  injury  to  plain- 
tiff; Southern  P.  R.  Co.  v.  Railroad  Comrs.  78  Fed.  249,  holding  injunction  prop- 
er which  does  not  operate  to  stop  criminal  prosecution;  People  ex  rel.  Alexan- 
der v.  District  Court,  29  Colo.  231,  68  Pac.  242,  holding  injunction  cannot  issue 
against  state  board  of  assessors  to  prevent  performance  of  executive  duties,  on 
ground  of  alleged  unconstitutionality  of  statute  creating  same;  Spring  Valley 
Waterworks  v.  San  Francisco,  124  Fed.  608,  holding  water-rate  payers  bound 
by  injunction  in  action  against  municipal  corporation  to  restrain  enforcement  of 
ordinance  reducing  such  rates;  St.  Louis  &  S.  F.  R.  Co.  v.  Allen,  181  Fed.  722, 
holding  that  Federal  court  cannot  enjoin  action  in  state  court  to  enforce  penalty 
under  void  state  railroad  commission  law. 

Cited  in  footnote  to  Lowery  v.  Pekin,  51  L.  R.  A.  301,  which  holds  injunction' 
proper  remedy  to  prevent  city  from  taking  unauthorized  possession  of  property 
for  public  highway. 


1  L.R.A.  744]  L.  R.  A.  CASES  AS  AUTHORITIES.  186 

cited  in  notes  (11  L.  R.  A.  208)  on  when  equity  will  relieve  by  injunction; 
(6  L.  R.  A.  90)  on  injunction  to  restrain  threatened  wrong. 

Distinguished  in  Railroad  Comrs.  v.  Synins  Grocery  Co.  53  Kan.  215,  35  Pac. 
217,  holding  shipper  not  entitled  to  enjoin  board  of  commissioners  from  estab- 
lishing discriminating  rates   injurious  to  his  business. 
Validity  of  penal  laws. 

Cited  in  Katzman  v.  Com.  140  Ky.  127,  30  L.R.A.(N.S.)   523,  140  Am.  St.  Rep. 
359,   130   S.   W.   990,  holding  act  making   sale   of   opium  by  druggists   without 
physician's  prescription  penal  not  void  for  uncertainty. 
Penalty  for  "unreasonable"  rate. 

Followed  in  Winsor  Coal  Co.  v.  Chicago  &  A.  R.  Co.  52  Fed.  723,  holding  charge 
at  highest  rate  allowed  by  statute  reasonable  where  commissioners  had  not 
undertaken  to  establish  another. 

Cited  in  Tozer  v.  United  States,  4  Inters.  Com.  Rep.  247,  52  Fed.  919,  holding 
interstate  commerce  act,  §  3,  providing  penalty  for  undue  preferences,  void 
for  uncertainty;  Louisville  &  N.  R.  Co.  v.  Com.  99  Ky.  138,  33  L.  R.  A.  212, 
59  Am.  St.  Rep.  457,  35  S.  W.  129,  holding  void  for  uncertainty  penalty  imposed 
upon  railroad  for  collecting  more  than  just  and  reasonable  rate  of  toll;  Waters- 
Pierce  Oil  Co.  v.  Texas,  212  U.  S.  109,  53  L.  ed.  429,  29  Sup.  Ct.  Rep.  220,  holding 
an  anti-trust  law  was  not  too  vague  or  indefinite  which  prohibited  acts  which 
"tend"  or  "are  unreasonably  calculated"  to  restrain  trade  or  prevent  competition. 

Cited  in  note  (33  L.  R.  A.  209)  on  definiteness  and  certainty  in  rates  fixed  by 
penal  statute. 

Constltntionality  of  statute  making  prescribed  rates  prima  facie  reason- 
able. 

Cited  in  footnotes  to  Missouri,  K.  &  T.  R.  Co.  v.  Simonson,  57  L.  R.  A. 
765,  which  holds  unconstitutional,  statute  making  specification  of  weights  in 
bill  of  lading  conclusive  evidence  of  their  correctness;  Baltimore  &  0.  S.  W. 
R,.  Co.  v.  Read,  56  L.  R.  A.  468,  which  holds  unconstitutional,  statute  preventing 
defendant  from  setting  up  decisions  of  foreign  state  in  defense  to  action  aris- 
ing there. 
Kinds  of  business  subject  to  rate  reg-nlation. 

Cited  in  notes  (6  L.R.A.  (N.S. )  835)  on  kinds  of  business  affected  with  public 
interest  subjecting  them  to  regulation  and  control  in  respect  to  rates  or  prices. 

1  L.  R.  A.  754,  DUNN  v.  BROWN  COUNTY  AGRI.  SOC.  46  Ohio  St.  93,  15  Am. 

St.  Rep.  556,  18  N.  E.  496. 
Status  of  agricultural   societies. 

Cited  in  Markley  v.  State,  12  Ohio  C.  C.  N.  S.  83,  31  Ohio  C.  C.  227,  holding 
that  a  county  agricultural  society  is  a  private  corporation;  Smith  Agri.  Chemical 
Co.  v.  Calvert,  7  Ohio  N.  P.  N.  S.  107,  18  Ohio  S.  &  C.  P.  Dec.  586,  holding  that 
the  state  board  of  agriculture  is  a  private  corporation;  Rahe  v.  Comrs.  (Cayuhoga 
Co.)  5  Ohio  C.  C.  N.  S.  100,  26  Ohio  C.  C.  494,  on  county  or  board  of  county 
commissioners  as  being  a  public  corporation. 
Liability  of  <inasi  civil  corporation  for  negligrence. 

Cited  in  World's  Columbian  Exposition  Co.  v.  France.  38  C.  C.  A.  489,  96  Fed. 
694,  holding  absolute  exemption  clause  in  agreement  with  exhibitor  valid,  as  to 
injuries  not  occurring  through  negligence  of  company's  agents;  Volk  v.  Board  of 
Education,  7  Ohio  N.  P.  164,  holding  board  of  education  liable  for  damage  to 
adjoining  property  injured  by  negligent  construction  of  schoolhouse;  Thornton  v. 
Maine  State  Agricultural  Soc.  97  Me.  114,  94  Am.  St.  Rep.  488,  53  Atl.  979, 
holding  agricultural  society  giving  fair  liable  for  negligent  shooting  of  one  stand- 


187  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  757 

ing  outside  grounds  by  person  at  target  practice  within;  Logan  v.  Agricultural 
Soc.  150  Mich.  541,  121  X.  W.  485,  holding  an  agricultural  society,  under  the 
same  obligation  when  it  invites  the  public  to  seats  upon  platforms  constructed 
for  viewing  of  races  that  a  private  corporation  would  be. 

Cited  in  footnote  to  Hart  v.  Washington  Park  Club,  29  L.  R.  A.  492,  which 
holds  fair  grounds  company  not  liable  for  injuries  caused  by  runaway  horse  in 
grounds,  unless  horse  under  exclusive  management  of  company's  servants. 

Cited  in  notes    (25   Am.  St.  Rep.  369)    on  corporate  liability   for  negligence; 
(35  L.R.A.(N.S.)    244)    on   immunity  of  state  institutions  from  suits   for  negli- 
gence. 
DIM  >    of  keepers   of  public  resorts  and  exhibitions. 

Cited  in  Larkin  v.  Saltair  Beach  Co.  30  Utah,  100,  3  L.R.A.(N.S.)  987,  116  Am. 
St.  Rep.  818,  83  Pac.  686,  8  A.  &  E.  Ann.  Cas.  977",  holding  a  keeper  of  a  bathing 
beach  bound  to  act  with  promptness,  and  make  every  reasonable  effort  to  search 
for,  and,  if  possible  recover  those  known  to  be  missing;  Williams  v  Mineral  City 
Park  Asso.  128  Iowa,  38.  1  L.R.A.(N.S.)  431,  111  Am.  St.  Rep.  184,  102  N.  W. 
783,  5  A.  &  E.  Ann.  Cas.  924,  holding  owners  and  managers  of  exhibitions  and 
places  of  amusement  are  held  to  the  exercise  of  reasonable  care  for  safety  of 
their  patrons. 

Cited  in  note  (3  L.R.A.(N.S.)  1133)  on  liability  of  one  maintaining  place  of 
public  amusement  for  safety  of  patrons. 

1  L.  R.  A.  757,  DALY  v.  MORGAN,  69  Md.  460,  16  Atl.  287. 
Discrimination  in  taxation. 

Cited  in  Wells  v.  Hyattsville,  77  Md.  141,  20  L.  R.  A.  93,  26  Atl.  357,  holding 
statute  exempting  all  personal  property  from  taxation  void;  Joestiug  v.  Balti- 
more, 97  Md.  591,  55  Atl.  456,  reaffirming  validity  of  act  against  increasing  rate 
of  taxation  for  city  purposes  on  land  annexed  to  city  until  streets  are  opened 
through  same;  Baltimore  v.  Gail,  106  Md.  687,  68  Atl.  282,  on  the  validity  of 
partial  exemption  of  property  brought  into  limits  of  Baltimore  City;  Baltimore 
v.  Rosenthal,  102  Md.  304,  62  Atl.  579,  on  the  exemption  from  taxation  of  terri- 
tory annexed  to  Baltimore  City;  State  v.  Lawrence,  79  Kan.  244,  100  Pac.  485, 
holding  the  principle  of  equality  is  satisfied  by  making  local  taxation  equal  and 
uniform  as  to  all  property  within  the  limits  of  the  taxing  district;  Miller  v. 
Wicomico  County,  107  Md.  442,  69  Atl.  118,  holding  the  legislature  has  power 
to  create  separate  taxing  districts  within  a  county  or  city,  provided  rate  of  assess- 
ment and  taxation  be  equal  and  uniform  as  to  all  property  within  taxing  district. 

Cited  in  footnotes  to  Com.  v.  Brown,  28  L.  R.  A.  110,  which  holds  method  of 
valuation  immaterial  if  requirement  for  equality  and  uniformity  is  satisfied; 
High  School  Dist.  No.  137  v.  Lancaster,  49  L.  R.  A.  343,  which  holds  both  valua- 
tion and  rate  of  taxation  required  by  Constitution  to  be  uniform;  Nathan  v. 
Spokane  County,  65  L.R.A.  337,  which  holds  property  liable  to  taxation  under 
general  laws  of  state  not  exempt  because  returned  for  taxation  for  same  years 
in  another  state. 

Cited  in  notes  (19  L.  R.  A.  81)  on  power  of  legislature  to  exempt  from  taxa- 
tion; (34  L.  R.  A.  193)  on  validity  of  exemption  or  discrimination  in  favor 
of  rural  property  within  municipality. 

Distinguished  in  Curtis  v.   Mactier,  115  Md.  395,  80  Atl.  1066,  holding  void, 
act  denying  village  authorities  power  to  tax  property  east  of  designated  line. 
tive  power  to  change  city  limits. 

Cited  in  footnote  to  Winona  v.  School  Dist.  No.  82,  3  L.  R.  A.  46,  which  holds 


1  L.R.A.  757]  L.  R.  A.  CASES  AS  AUTHORITIES.  18* 

title   to   municipal   property   within   district  added  to   another   municipality   by 
statute  remains  in  former  corporation. 

Cited  in  notes  (11  L.  R.  A.  780)  on  extension  of  city  limits;   (27  L.  R.  A.  744) 
on  power  of  legislature  to  annex  territory  to  municipalities. 
Local  power  of  taxation. 

Cited  in  Bonsai  v.  Vellott,  100  Md.  500,  69  L.R.A.  917,  60  Atl.  593,  holding  no 
power  of  taxation  or  other  means  of  raising  revenue  for  the  construction  and 
maintenance  of  roads,  is  vested  in  the  counties,  excepting  what  the  state  gives 
them. 
Taxation  by  local  authorities  as  delegation  of  legislative  power. 

Cited  in  Baltimore  &  E.  S.  R.  Co.  v.  Spring,  80  Md.  518,  27  L.  R.  A.  74,  31 
Atl.  208,  holding  void,  statute  authorizing  county  commissioners  to  issue  county 
bonds  to  raise  fund  for  payment  of  private  claims  of  certain  residents;  Hooper 
v.  Creager,  84  Md.  256,  35  L.  R.  A.  209,  35  Atl.  1103  (dissenting  opinion),  ma- 
jority holding  that  power  of  appointment  delegated  to  mayor  cannot  be  de- 
stroyed by  city  council  under  power  to  regulate  appointments. 
Legislative  povrer  over  municipalities  generally. 

Cited  in  Sandoz  v.  Sanders,  325  La.  401,  51  So.  436,  holding  the  constitutional 
requirement  of  a  two-thirds  vote  to  change  parish  lines,  has  no  application  to  the 
creation  of  new  parishes.  • 

Cited   in  note    (48  L.  R.  A.  465)    on  power  of  legislature  to  impose  burdens 
upon  municipalities  and  to  control  their  local  administration  and  property. 
Sufficiency  of  title  of  statute. 

Cited  in  Steenken  v.  State,  88  Md.  712,  42  Atl.  212,  holding  provision  for 
stevedore's  bond  in  act  of  1898,  chap.  505.  void  by  reason  of  omission  from  title. 

1  L.  R.  A.  767,  FARMERS  PHOSPHATE  CO.  v.  GILL,  69  Md.  537,  9  Am.  St. 

Rep.  443,  16  Atl.  214. 
Passage  of  title. 

Cited  in  Hopkins  v.  CoAven,  90  Md.  162,  47  L.  R.  A.  126,  44  Atl.  1062,  holding- 
that  tender  to  bank  of  amount  of  draft  attached  to  bill  of  lading  in  consignor's 
name  does  not  vest  title  in  vendee;  Keller  v.  State,  (Tex.  Crim.  Rep.)  1  L.R..A. 
(N.S.)  494,  87  S.  W.  669,  holding  a  sale  and  shipment  C.  O.  D.  is  completed  where 
the  order  for  intoxicating  liquor  is  received  and  filled;  Creelman  Lumber  Co.  v. 
De  Lisle,,  107  Mo.  App.  628,  82  S.  W.  205,  holding  weighing  or  measuring  is  not 
essential  to  a  completed  sale,  except  when  necessary  to  define  the  subject- 
matter. 

Cited  in  footnotes  to  Anderson  v.  Crisp.  18  L.  R.  A.  419.  which  holds  that  pay- 
ment of  purchase  price  for  quantity  of  "merchantable  brick"  from  certain  kiln 
does  not  pass  title  before  segregation;  Conrad  v.  Fisher,  8  L.  R.  A.  147,  which 
holds  vendor's  lien  not  devested  by  constructive  delivery  so  long  as  goods  remain 
in  actual  custody  of  vendor  or  his  servant;  H.  M.  Tyler  Lumber  Co.  v.  Charlton, 
55  L.  R.  A.  301,  which  holds  no  change  in  title  to  lumber  by  acceptance  of  offer 
to  sell,  where  no  inspection,  change  of  possession,  or  new  insurance,  nor  notice 
to  mill  owner  of  change  of  title;  Feeley  v.  Boyd,  65  L.R.A.  943,  which  holds 
immediate  delivery  followed  by  actual  and  continued  change  of  possession  of 
fruit  in  bins  shown  by  purchaser  sending  representative  the  same  evening  to  take 
possession,  and  sending  man  the  next  morning  to  prepare  for  shipment. 

Cited  in  notes  (22  L.  R.  A.  425)  on  imposition  of  conditions  in  sale  as  in- 
dicating intention  to  retain  title;  (17  L.  R.  A.  179)  on  vesting  of  title  on  delivery 
to  carrier;  (26  L.R.A.(N.S.)  2,  on  sufficiency  of  selection  or  designation  of  goods 


189  L-  R-  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  771 

sold  out  of  larger  lot;    (23  Eng.  Rul.  Cas.  294)   on  time  of  passing  of  title  to 
specific  or  ascertained  goods  sold. 

Distinguished  in  Lochnar  v.  State,  111  Md.  666,  76  Atl.  586,  holding  place  of 
delivery  is  place  of  sale  where  order  for  liquor  is  accepted  to  be  delivered  to 
purchaser  in  a  certain  place. 
Effect   of  nonpayment  of  price. 

Cited  in  notes   (13  L.R.A.(N.S.)    704,  on  right  of  purchasers  of,  or  creditors 
levying  on,  goods  sold  for  cash,  but  delivered  without  payment;   (22  Am.  St.  Rep. 
867)  on  who  must  bear  loss  where  property  sold  is  not  paid  for. 
By  transfer  of  bill  of  lading:. 

Cited  in  Murphy  v.  American  Can  Co.  106  Md.  196,  67  Atl.  17,  holding  an 
acceptance  of  a  bill  of  lading  by  the  consignee  or  the  endorsee  thereof  when  it 
has  been  issued  to  the  order  of  another  person,  amounts  to  an  acceptance  of 
the  goods  represented  by  it. 

1  L.  R.  A.  771,  STATE  ex  rel.  ATTY.  GEN.  v.  MADISON  STREET  R.  CO.  72 

Wis.  612,  40  N.  W.  487. 
•Franchises. 

Cited  in  State  ex  rel.  Fullerton  v.  DCS  Moines  City  R.  Co.  135  Iowa,  706,  109 
N.  W.  867,  holding  the  right  to  construct  and  operate  a  street  railway  or  other 
similar  public  utility  is  a  franchise  derived  from  the  state;  La  Crosse  v.  La 
Crosse  Gas  &  Electric  Co.  145  Wis.  418,  130  N.  W.  530,  on  distinction  between 
corporate  franchises. 
•Creation  of  franchise  uy  municipal  ordinance. 

Cited  in  Ashland  v.  Wheeler,  88  Wis.  616,  60  N.  W.  818,  holding  franchise 
attempted  to  be  created  by  town  validated  by  municipal  ordinance  ratifvinw  and 
adopting  action  of  town  council;  State  ex  rel.  Milwaukee  Street  R.  Co.  v.  An- 
derson, 90  Wis.  565,  63  N.  W.  746,  holding  cars,  rails,  poles,  etc.,  acquired  in 
pursuance  of  municipal  franchise,  personal  property  subject  to  assessment  for 
taxation  in  district  of  company's  principal  office;  State  ex  rel.  Rose  v.  Superior 
Court,  105  Wis.  673,  48  L.  R.  A.  827,  81  N.  W.  1046,  holding  that  injunction  can- 
jiot  issue  to  prevent  passage  of  ordinance  creating  railway  franchise  in  Milwaukee; 
Allen  v.  Clausen,  114  Wis.  250,  90  N.  W.  181,  holding  void  municipal  ordinance 
conferring  franchise  to  use  streets,  on  individuals  not  previously  having  right 
"to  construct,  maintain,  and  operate  street  railway;"  State  ex  rel.  Atty.  Gen.  v. 
Portage  City  Water  Co.  107  Wis.  445,  83  N.  W.  697,  holding  that  grant  by  ordi- 
nance of  right  to  construct  and  maintain  waterworks  system  within  municipal 
limits  creates  forfeitable  franchise;  State  ex  rel.  Boycott  v.  La  Crosse.  107  Wis. 
668,  84  N.  W.  242,  holding  ordinance  adopting  only  portion  of  "city  improve- 
ments" chapter  of  general  city  charter  law  void  for  material  omissions;  Little 
Rock  R.  &  Electric  Co.  v.  North  Little  Rock,  76  Ark.  64,  88  S.  W.  826  (dissenting 
opinion),  on  creation  of  franchise  by  municipal  ordinance;  Manitowoc  v.  Mani- 
towoc  &  N.  Traction  Co.  145  Wis.  22,  140  Am.  St.  Rep.  1056,  129  N.  W.  925, 
holding  that  city  may  refuse  to  grant  interurban  railway  right  to  run  cars 
over  streets. 

Cited  in  note  (50  L.  R.  A.  143)  on  privilege  of  using  streets  for  railway  aa 
contract  within  constitutional  provision  against  impairment. 

Distinguished  in  National  Foundry  &  Pipe  Works  v.  Oconto  Water  Co.  52  Fed. 
35,  holding  franchise  created  by  legislature  subject  to  municipality's  permission 
to  grant  easement  in  streets ;  Belleville  v.  Citizens'  Horse  R.  Co.  152  111.  186, 
26  L.  R.  A.  685,  38  N.  E.  584,  Reversing  47  111.  App.  410,  holding  ordinance  con- 


1  L.R.A.  771]  L.  R.  A.  CASES  AS  AUTHORITIES.  190 

senting  to  use  of  streets  for  railway  creates  only  license,  revocable  by  stipulation 

therein. 

Forfeiture  of  municipal  franchise. 

Cited  in  Wright  v.  Milwaukee  Electric  R.  &  Light  Co.  95  Wis.  36,  36  L.  R.  A. 
50,  60  Am.  St.  Rep.  81,  69  N.  W.  794.  holding  failure  to  operate  during  nearly 
five  years  not  presumptive  surrender  and  cancelation  of  franchise  created  by 
ordinance;  Galveston  &  W.  R.  Co.  v.  Galveston,  90  Tex.  404,  36  L.  R.  A.  39,  39 
S.  \Y.  920,  holding  violation  of  terms  of  ordinance  creating  franchise  subject* 
latter  to  forfeiture;  Palestine  Water  &  P.  Co.  v.  Palestine.  91  Tex.  549,  40  L.  R. 
A.  207,  44  S.  W.  814,  holding  waterworks  franchise  created  by  municipal  ordi- 
nance subject  to  forfeiture  for  violation  of  terms;  Kaukauna  Electric  Light  Co. 
v.  Kaukauna,  114  Wis.  336.  89  N.  W.  542,  holding  light  company's  failure  to 
bury  wires  and  paint  poles  as  agreed  no  defense  to  city  in  action  for  lights  fur- 
nished, being  ground  for  forfeiture  of  franchise  only;  People  v.  Bleeker  Street 
&  Fulton  Ferry  R.  Co.  140  App.  Div.  616,  125  N.  Y.  Supp.  1045,  holding  that 
under  common  law,  attorney-general  could  maintain  quo  warranto  to  declare  for- 
feiture of  corporate  franchise. 

Cited  in  footnote  to  Illinois  Trust  &  Sav.  Bank  v.  Doud,  52  L.  R.  A.  481.  which, 
holds  failure  to  exercise  all  rights  under  municipal  franchise  not  ground  for 
forfeiture  in  absence  of  express  requirement. 

Cited  in  note   (36  L.  R.  A.  35)    on  enforcement  of  conditions  imposed  in  mu- 
nicipal consent  to  construction  of  street  railway. 
Regulation  of  railway. 

Cited  in  State  ex  rcl.  Wisconsin  Teleph.  Co.  v.  Janesville  Street  R.  Co.  87  Wis. 
78,  22  L.  R.  A.  763,  41  Am.  St.  Rep.  23.  57  N.  W.  970.  upholding  ordinance  re- 
quiring supply  of  necessary  safeguards  on  stringing  wires  across  existing  electric 
wires;  State,  Cape  May,  D.  B.  &  S.  P.  R.  Co.,  Prosecutor,  v.  Cape  May,  59  X.  J. 
L.  403,  36  L.  R.  A.  655,  36  Atl.  696,  holding  ordinance  limiting  speed  of  electric- 
cars  within  municipality  reasonable  and  valid. 
Admissibility  of  expert  evidence. 

Cited  in  Fisher  v.  Waupaca  Electric  Light  &  R.  Co.  141  Wis.  524.  124  X.  W. 
1005,  holding  evidence  of  an  expert  that  the  most  approved  plan  of  construction 
required  a  fender  to  pick  up  objects  in  front  of  car  was  competent. 

1  L.  R.  A.  774,  DAVIS  v.  XUZUM,  72  Wis.  439,  40  X.  W.  497. 
Actionable  false  representation. 

Cited  in  Middleton  v.  Jerdee.  73  Wis.  45,  40  X.  W.  629.  holding  intentional 
misrepresentation  of  character  and  past  productiveness  of  land,  deceiving  lessee, 
actionable;  The  Montreal  River  Lumber  Co.  v.  Mihills,  80  Wis.  560,  50  N.  W.  507. 
holding  recovery  impossible  except  for  false  representation  of  existing  material 
fact,  relied  upon;  Castenholz  v.  Heller.  82  Wis.  34,  51  X.  W.  432,  upholding  re- 
covery for  vendor's  intentional  misrepresentation  of  fence  as  boundary  line  of 
land  purchased;  Gunther  v.  Ullrich,  82  Wis.  228.  33  Am.  St.  Rep.  32,  52  N.  W. 
88,  holding  principal  liable  for  agent's  intentional  misrepresentation  of  location 
of  land;  Rasmussen  v.  Reedy,  14  S.  D.  23.  84  X'.  W.  205,  holding  vendee  examining 
land  may  rely  on  vendor's  representation  as  to  boundaries ;  Sears  v.  Stinson,  3 
Wash.  620,  29  Pac.  205..  holding  false  representation  as  to  depth  of  lots  with 
reference  to  imperfect  plat  actionable;  Matteson  v.  Rice,  116  Wis.  335,  92  X'.  W. 
1109,  holding  landlord  liable  for  loss  caused  by  agent's  false  representations  as 
to  fire  wall,  believed  by  agent  to  be  true:  Freeman  v.  Lloyd,  43  Wash.  612.  86 
Pac.  1051,  holding  if  owner  undertakes  to  point  out  the  boundaries  of  land  at 
all.  he  must  point  them  out  correctly:  Standard  Mfg.  Co.  v.  Slot.  121  Wis.  18, 
105  Am.  St.  Rep.  1016,  98  X.  W.  923,  holding  where  a  person  knowingly  or  ig- 


191  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.B,A.  777 

norantly  makes  a  false  atatement  of  a  fact  in  a  business  transaction,  reasonably 
calculated  to  deceive  and  which  does  in  fact  deceive,  such  act  is  not  binding  upon 
the  party  deceived;  Kathan  v.  Comstock,  140  Wis.  432,  28  L.R.A.(X.S.)  210, 
122  X.  W.  1044,  holding  one  in  negotiating  with  another  in  contract  has  a  duty 
to  know  whereof  he  speaks  or  not  to  speak  at  all  as  of  his  knowledge. 

Cited  in  footnotes  to  Xash  v.  Minnesota  Title,  Ins.  &  T.  Co.  28  L.  R.  A.  753r 
which  holds  liability  of  third  person  for  known  false  statement  not  avoidable 
because  not  intended  to  injure;  H.  W.  Williams  Transp.  Line  v.  Darius  Cole 
Transp.  Co.  56  L.  R.  A.  939,  which  holds  false,  but  not  fraudulent,  representa- 
tions to  induce  sale  not  actionable  where  sale  is  accompanied  by  warranty. 

Cited  in  notes  (2  L.  R.  A.  743)  on  requisites  to  action  for  false  representa- 
tion; (4  L.  R.  A.  158,  159;  6  L.  R.  A.  151)  on  action  for  deceit;  (6  L.  R.  A.  219) 
on  tV.lse  representations  inducing  entry  into  contract;  (10  L.  R.  A.  606)  on  con- 
tract obtained  by  circumvention  and  deceit;  (14  L.R.A.  (N.S.)  121)  on  right  of 
purchaser  to  land  to  rely  upon  representation  of  seller  as  to  boundaries;  (13  Am. 
St.  Rep.  431)  on  what  representations  are  fraudulent. 

1  L.  R.  A.  777,  MEYER  v.  BERLAXDI,  39  Minn.  438,  12  Am.  St.  Rep.  663,  40 

X.  W.  513. 
Imprisonment  for  debt. 

Cited  in  note  (34  L.  R.  A.  638)  on  constitutionality  of  imprisonment  for  debt. 
Necessity  of  consent  to  contract,  and  what  constitutes. 

Cited  in  Hill  v.  Gill,  40  Minn.  443,  42  N.  W.  294,  holding  that  agreement  to- 
convey,  requiring  vendee  to  build,  supports  lien  on  vendor's  interest  under  con- 
tract by  vendee;  Glass  v.  Freeburg,  50  Minn.  388,  16  L.  R.  A.  336,  52  X.  W. 
900,  sustaining  contractor's  right  to  charge  owner's  lands  for  labor  and  .mate- 
rials used  in  performing  contract;  Wheaton  v.  Berg,  50  Minn.  535,  52  N.  W.  926, 
holding  consent  cannot  be  conclusively  implied  from  mere  silence;  Randolph  v. 
Builders  &  Painters  Supply  Co.  106  Ala.  510,  17  So.  721,  holding  unconstitutional 
act  which  makes  failure  of  owner  to  give  written  notice  prima  facie  evidence  of 
consent;  Missouri,  K.  &  T.  R.  Co.  v.  Simonson,  64  Kan.  806,  57  L.  R.  A.  767,  9- 
Am.  St.  Rep.  248,  68  Pac.  653,  holding  unconstitutional  law  making  specification 
of  weights  of  goods  in  railroad  bills  of  lading  conclusive  as  to  correctness;  Jones 
v.  Great  Southern  Fireproof  Hotel  Co.  79  Fed.  481,  holding  act  giving  subcon- 
tractor lien  without  regard  to  account  between  contractor  and  owner  uncon- 
stitutional. 

Cited  in  note  (23  L.R.A.  (N.S.)  619)  on  power  of  lessee  or  vendee  to  subject 
owner's  interest  to  mechanics'  liens. 

Distinguished  in  Title  Guarantee  Co.  v.  Wrenn,  35  Or.  67,  76  Am.  St.  Rep.  454,. 
56  Pac.  271,  holding  unconstitutional  law  requiring  owner  to  post  notice  of  non- 
consent  in  writing  three  days  after  knowledge  of  construction. 
Priority    between    liens. 

Cited  in  James  River  Lumber  Co.  v.  Danner,  3  N.  D.  472,  57  N.  W.  343,  and 
Wimberley  v.  Mayberry,  94  Ala.  248,  14  L.  R.  A.  309,  10  So.  157,  holding  me- 
chanic's lien  superior  to  prior  mortgage  only  as  to  what  is  added  by  the  lienor; 
Gavr  v.  Clements,  4  X.  D.  562.  02  X.  \Y.  C40,  holding  mechanic's  lien  on  thresh- 
ing engine  left  in  possession  of  ow»er  superior  to  that  of  prior  mortgagee;  Wright 
v.  Sherman,  3  S.  D.  294,  17  L.  R.  A.  793,  52  X.  W.  1093,  holding  prior  chattel 
mortgage  superior  to  agister's  lien  for  pasturage,  unless  mortgagee  consents. 

Cited  in  notes  (14  L.  R.  A.  305)  on  when  mechanics'  liens  are  superior  ta 
earlier  mortgages;  (12  L.  R.  A.  34)  on  priority  of  mechanics'  liens  over  subse- 
quent liens. 


1  L.R.A.  777]  L.  R.  A.  CASES  AS  AUTHORITIES.  192 

Validity  of  statutes. 

Cited  in  Leahart  v.  Deedmeyer,  158  Ala.  299,  48  So.  371,  on  validity  of  attor- 
ney's lien  law;  Prince  v.  Neal-Millard  Co.  124  Ga.  889,  53  S.  E.  761,  4  A.  &  E. 
Ann.  Cas.  615,  holding  mechanic's  lien  law  valid;  Yazoo  &  M.  V.  R.  Co.  v.  Bent, 
94  Miss.  689,  22  L.R.A.(N.S.)  825,  47  So.  805,  holding  valid,  statute  making  bill 
of  lading  conclusive  evidence  of  receipt  of  property  by  carrier. 
1  n<  or.st  i  t  ii  t  iomilit  y  nffeciiiij?  the  whole  lavr. 

Cited  in  Davis  v.  St.  Louis  County,  65  Minn.  312,  33  L.  R.  A.  433,  60  Am.  St. 
Rep.  475,  67  N.  W.  997,  holding  unconstitutional  law  permitting  location  of 
section  corners  at  expense  of  landowners  without  their  consent;  State  ex  rel. 
Holt  v.  Denny,  118  Ind.  476,  4  L.  R.  A.  77,  21  N.  E.  274,  holding  police  and  fire 
department  act  so  interwoven  as  to  wholly  fall,  part  being  unconstitutional; 
Northern  P.  R.  Co.  v.  Barnes,  2  N.  D.  385,  51  N.  W.  786  (dissenting  opinion),  as 
to  unconstitutionality  of  entire  act  where  unconstitutional  part  closely  connected 
with  other  portions. 
Effect  of  unconstitutional  repealing:  act  on  prior  law. 

Cited  in  Moore  v.  St.  Paul,  61  Minn.  429,  63  N.  W.  1087,  and  St.  Paul  Foundry 
Co.  v.  Wegmann,  40  Minn.  420,  42  N.  W.  288,  holding  unconstitutionality  of  re- 
pealing act  leaves  prior  law  in  force. 
Sufficiency   of  verified   statement. 

Cited  in  McGlauflin  v.  Beeden,  41  Minn.  411,  43  N.  W.  86,  holding  affidavit,  for 
lien  failing  to  show  that  owner  authorized  work,  insufficient;  J.  E.  Greilick  Co.  v. 
Taylor,  143  Mich.  709,  107  N.  W.  712,  holding  insufficient,  statement  arbitrarily 
fixing  amount  due. 
Supplemental  pleading1. 

Cited  in  Lawrence  v.  Pederson,  34  Wash.  6,  74  Pac.  1011,  disallowing,  after 
nonsuit  of  action  to  recover  commissions  for  effecting  sale  optional  on  purchaser, 
supplemental  complaint  alleging  payment  under  option;  Cassidy  v.  Saline  County 
Bank,  7  Ind.  Terr.  566,  104  S.  W.  829,  holding  that  complaint  in  action  on  open 
account  cannot  be  amended  by  showing  judgment  in  another  state  on  same  cause. 

Cited  in  footnote  to  Schwab  v.  Schwab,  52  L.  R.  A.  414,  which  holds  facts 
arising  after  suit  for  divorce  cannot  be  introduced  by  supplemental  bill. 

1  L.  R.  A.  781,  RICHARDS  v.  ATTLEBOROUGH  NAT.  BANK,  148  Mass.   187, 

19  N.  E.  353. 
Banks  and  banking:. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
possession -by  bank  of  unindorsed  check  not  presumption  of  payment. 
—  Stock   transfers  after    liquidation    begins. 

Cited  in  Muir  v.  Citizens'  Nat.  Bank,  39  Wash.  60,  80  Pac.  1007,  holding  no 
transfer  of  stock  may  be  registered  pending  final  settlement  of  a  bank  after 
voluntary  liquidation. 

1  L.  R.  A.  785,  LEWIS  v.  LYNN  INST.  FOR  SAVINGS,  148  Mass.  235,  12  Am. 

St.  Rep.  535,  19  N.  E.  365. 
Relation  of  bank  and  depositors. 

Cited  in  Dickinson  v.  Leominster  Sav.  Bank,  152  Mass.  52,  25  N.  E.  12,  hold- 
ing that  in  some  aspects  savings  bank  is  trustee  of  depositor;  McCarthy  v.  Provi- 
dent Inst.  for  Savings,  159  Mass.  529.  34  X.  E.  1073,  holding  savings  bank  de- 
posit may  be  conveyed  in  trust  and  become  part  of  trust  estate;  People  ex  rel. 
Newburgh  Sav.  Bank  v.  Peck,  157  N.  Y.  57,  51  N.  E.  412,  holding  surplus  fund 
untaxable  under  statute  exempting  savings  bank  "deposits;"  People  v.  Ulster 


193  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  794 

County  Sav.  Inst.  64  Hun,  443,  18  X.  Y.  Supp.  960,  holding  court  could  allow 
insolvent  bank  to  resume  business  upon  percentage  basis  of  liabilities;  Mann  v. 
Carter,  74  N.  H.  348,  15  L.R.A.(X.S.)  153,  68  Atl.  130,  holding  a  depositor  is 
a  mere  creditor  of  the  institution  in  which  her  money  is  deposited  and  has  its 
situs  for  purposes  of  taxation  at  domicile  of  owner. 

Cited  in  notes   (7  L.  R.  A.  93)    on  banks  and  banking;    (13  L.  R.  A.  371)   on 
relation  between  bank  officials  and  depositors. 
Nature  of  savings  banks. 

Cited  in  note   (105  Am.  St.  Rep.  730)   on  general  nature  of  savings  banks. 
Limitation  of  action. 

€ited  in  Campbell  v.  Whoriskey,  170  Mass.  67,  48  N.  E.  1070,  holding  action  by 
depositor  against  person  standing  in  place  of  savings  bank,  four  years  after  de- 
mand, seasonable. 

1  L.  R.  A.  787,  PETTIBOXE  v.  TOLEDO,  C.  &  ST.  L.  R.  CO.  148  Mass.  411,  19 

N.  E.  337. 
Executory   mntual   obligation. 

Cited  in  D.  C.  Hardy  Implement  Co.  v.  South  Bend  Iron  Works,  129  Mo.  230, 
31   S.  W.  599,  holding  that  party  to  executory  contract  with  partnership  may 
rescind  upon  withdrawal  of  partner  from  firm. 
.Property  which  creditor  may  reach. 

Cited  in  Amy  v.  Manning,  149  Mass.  489,  21  N".  E.  943,  discussing,  but  not 
deciding,  whether  debtors'  claims  against  nonresidents  may  be  reached  in  equity 
by  creditor;  Geer  v.  Horton,  159  Mass.  261,  34  X.  E.  269,  holding  creditor  can- 
not reach  in  equity  money  due  from  beneficiary  association  to  member;  East- 
ern Electric  Cable  Co.  v.  Great  Western  Mfg.  Co.  164  Mass.  276,  41  N.  E.  295, 
holding  mere  contingent  or  conjectural  demands  unreachable  by  creditors;  Snyder 
"v.  Smith,  185  Mass.  62,  69  X.  E.  1089,  on  power  to  appropriate  property  under 
statutes  providing  for  reaching  and  applying  equitable  assets  in  payment  of  debts. 

Cited  in  footnote  to  Harper  v.  Clayton,  35  L.  R.  A.  211,  which  holds  unas- 
signed  right  of  dower  unreachable  by  creditor's  bill  in  absence  of  statute. 
Sufficiency  of  bill  and  proofs. 

Cited  in  Wheelock  v.  Globe  Constr.  Co.  195  Mass.  461,  81  N".  E.  276,  holding 
a  bill  will  not  lie  to  reach  and  apply  equitable  assets  where  there  is  no  evidence 
to  show  value  of  the  rights  of  the  respective  parties  under  the  agreement; 
Hoshor-Platt  Co.  v.  Miller,  190  Mass.  287,  76  N.  E.  650,  holding  if  bill  to  reach 
and  apply,  in  payment  of  debt,  the  debtor's  property,  does  not  sufficiently  show 
the  existence  of  such  property,  the  bill  may  be  dismissed  on  demurrer. 
Debt. 

Cited  in  Sperry  v.  Cook,  138  Mo.  App.  303,  120  S.  W.  654  (dissenting  opinion), 
on  construction  of  the  word  debt. 

1  L.  R.  A.  794,  CLYDE  v.  STEAM  TRAXSP.  CO.  36  Fed.  501. 
I, leu  for  work  and  supplies  in  home  port. 

Cited  in  The  J.  E.  Rumbell,  148  U.  S.  18,  37  L.  ed.  349,  13  Sup.  Ct.  Rep.  498, 
and  The  Madrid,  40  Fed.  678,  holding  home  materialman's  lien  under  state  statute 
within  admiralty  jurisdiction;  The  H.  X.  Emilie,  70  Fed.  511,  holding  state  liens 
on  vessels  must  be  enforced  within  statutory  limit;  The  Willapa,  25  Or.  76,  34 
Pac.  689,  holding  state  courts  cannot  enforce  liens  for  vessel  supplies  furnished 
in  home  port;  Scatcherd  Lumber  Co.  v.  Rike,  113  Ala.  561,  59  Am.  St.  Rep.  147, 
21  So.  136,  holding  Federal  courts  without  jurisdiction  to  enforce  state  lien  for 
supplies  furnished  vessel  in  home  port. 
L.R.A.  Au.  Vol.  I.— 13. 


1   L.R.A.  794]  L.  R.  A.  CASES  AS  AUTHORITIES.  194 

Cited  in  note  (70  L.R.A.  358,  409)  on  maritime  lien  for  supplies  furnished  in 
home  port. 

1  L.  R.  A.  795,  STATE  v.  WILSON..  40  La.  Ann.  751,  5  So.  52. 
Misconduct    of   jury. 

Cited   in  note    (134  Am.   St.  Rep.   1058)    on   misconduct  of  jurors   other  than 
their  separation  for  which  a  verdict  may  be  set  aside. 
Sufficiency   of   verdict. 

Cited  in  Kenney  v.  Kansas  City,  P.  &  G.  R.  Co.  79  Mo.  App.  209,  setting  aside 
verdict,  meaning  not  being  clearly  ascertainable ;  Long  v.  State,  42  Fla.  613,  28 
So.  855,  upholding  verdict  finding  defendant  guilty  as  charged;  State  v.  Preston, 
4  Idaho,  221,  38  Pac.  694,  upholding  verdict  finding  defendant  guilty  of  being  a 
vagrant  at  time  charged;  Albritton  v.  State,  54  Fla.  12,  44  So.  745,  holding  any 
words  which  convey  beyond  reasonable  doubt  the  meaning  and  intention  of  the 
jury  are  sufficient,  and  all  fair  intendments  will  be  made  to  support  the  verdict; 
State  v.  Schweitzer,  18  Idaho,  613.  Ill  Pac.  130,  upholding  verdict  in  words.  -\ve 
find  defendant  guilty  of  selling  by  short  weights  as  charged  in  complaint:'' 
State  v.  Gregory,  153  X.  C.  648,  69  S.  E.  674,  holding  sufficient,  verdict  of  guilty 
of  receiving  goods,  knowing  them  to  be  stolen,  though  indictment  contained  an- 
other count,  where  trial  was  confined  to  former  count  alone. 

Cited  in  footnote  to  Louisville.  X.  A.  &  C.  R.  Co.  v.  Lucas,  6  L.  R.  A.  195,  which 
holds  special  verdict  in  which  the  facts  are  properly  stated  not  vitiated  by  omis- 
sion of  mere  formal  statements. 

Cited  in  note  (137  Am.  St.  Rep.  966)  on  sufficiency  of  verdict  in  vagrancy  case. 

Distinguished  in   Connelly  v.   Illinois   C.   R.   Co.   120  Mo.   App.   600,   97    S.   W. 
616,  holding  a  verdict  uncertain  in  meaning  and  incapable  of  being  made  certain, 
in  violation  of  the  law,  ought  not  to  stand. 
Application   of  Idem   sonans   rnle. 

Cited  in  Johns  v.  State,  46  Fla.  154,  35  So.  71,  holding  the  rule  idem  sonans 
applicable  in  construing  verdicts. 
Testimony  accompanying  bill  of  exceptions. 

Cited  in  State  v.  Seiley,  41  La.  Ann.  151,  6  So.  571,  holding  appellate  court 
may  examine  evidence  on  collateral  issue  to  decide  question  of  law  relating 
thereto. 

1  L.  R.  A.  796,  UNITED  STATES  v.  MITCHELL,  36  Fed.  492. 
Sufficiency  of  indictment   for  misuse   of  mails. 

Cited  in  Etheredge  v.  United  States,  108  C.  C.  A.  356,  186  Fed.  441,  holding 
insufficient,  indictment  alleging  the  procuring  of  diamond  ring  through  mails, 
with  intent  of  not  paying  therefor. 

1  L.  R.  A.  797,  SHERWOOD  v.  MOELLE,  36  Fed.  478. 
Effect  of  quitclaim  deed   in  chain   of  title. 

Affirmed  in  Moelle  v.  Sherwood,  148  U.  S.  21,  37  L.  ed.  350,  13  Sup.  Ct.  Rep. 
426,  holding  conveyance  by  quitclaim  raises  no  presumption  of  uant  of  bona  fides 
of  purchaser. 

Cited  in  Meikel  v.  Borders,  129  Ind.  534,  29  N.  E.  29,  holding  grantee  by  war- 
ranty deed  in  good  faith  a  bona  fide  purchaser,  though  grantor  held  by  quit- 
claim; Schott  v.  Dosh,  49  Xeb.  195,  59  Am.  St.  Rep.  531,  68  X.  W.  346,  holding 
bona  fide  purchaser,  without  notice,  entitled  to  protection  of  recording  act.  though 
deriving  title  through  quitclaim;  Downs  v.  Rich,  81  Kan.  47,  25  L.R.A. (X.S.) 


195  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  804 

1039.  105  Pac.  9,  denying  duty  of  taker  by  warranty  deed  to  search  records  as 
in  case  of  quit  claim  grantee. 

Cited  in  notes  (29  L.R.A.  47)  on  effect  of  quitclaim  deed  in  chain  of  title; 
(105  Am.  St.  Rep.  862)  on  same  point;  (25  L.R.A.  (N.S.)  1038)  on  effect  of  re- 
mote quitclaim  in  chain  of  title  upon  rights  of  subsequent  purchaser. 

Distinguished  in  American  Mortg.  Co.  v.  Hutchinson,  19  Or.  350,  24  Pac.  515, 
holding  one  whose  good  faith  and  want  of  notice  is  not  shown,  deriving  title 
through  quitclaim  from  grantor  not  in  actual  or  constructive  possession,  not 
protected  by  recording  act. 

1  L.  R.  A.  799.  AMERICAN  BELL  TELEPH.  CO.  v.  CUSHMAN  TELEPH.  & 

SERVICE  CO.  36  Fed.  488. 
Remedy  for  infringement  of  patent. 

Cited  in  American  Bell  Teleph.  Co.  v.  Cushman,  57  Fed.  844,  sustaining  right 
to  injunction  against  devices  previously  adjudged  to  be  infringements. 
Telephone  service. 

Cited  in  notes  (5  L.R.A.  162)  on  telephone  company  as  common  carrier;  (10 
Am.  St.  Rep.  135)  on  telephone  law. 

1  L.  R.  A.  801,  FULLER  v.  DETROIT  F.  &  M.  INS.  CO.  36  Fed.  469. 
Equity   jurisdiction    of   suits  against   several   co-Insurers. 

Cited  in  American  Cent.  Ins.  Co.  v.  Landau,  56  N.  J.  Eq.  523,  39  Atl.  400, 
holding  that  to  prevent  multiplicity  of  suits,  equity  court  may  enjoin  actions 
in  law  by  insured  against  common  insurers;  Dixie  F.  Ins.  Co.  v.  American  Con- 
fectionery Co.  —  Tenn.  — ,  34  L.R.A.(X.S.)  903,  136  S.  W.  915,  upholding  juris; 
diction  of  equity  of  suit  to  adjust  respective  liabilities  of  several  insurers  of 
manufacturing  plant,  where  all  set  up  common  defense  of  noneompliance  with 
conditions  in  policies. 

Distinguished  in  Mechanics'  Ins.  Co.  v.  Hoover  Distilling  Co.  97  C.  C.  A.  400, 
1 73   Fed.   894,  where  one  of  numerous  insurance  companies   sought   to   implead 
all  with  insured. 
Bill  against   persons  contributorily  liable. 

Cited  in  Gulf  Compress  Co.  v.  Jones  Cotton  Co.  157  Ala.  42,  47  So.  251,  holding 
such  uncertainty  as  to  liability  shown  in  case  of  express  company  and  railroad 
company  under  joint  traffic  arrangements  as  to  entitle  one  damaged  to  equitable 
relief  against  both  companies. 
Insurance;  statement  of  loss. 

Cited  in  note  (7  L.  R.  A.  81)  on  fire  insurance;  provision  requiring  statement 
and  proof  of  loss. 

1  L.  R.  A.  804,  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  v.  McCORMICK,  71  Tex.  660,  9 

S.  W.  540. 
Right    of   action   under   foreign   statute. 

Cited  in  notes    (70  L.R.A.  553)    on  right  of  nonresidents  to  sue   foreign  cor- 
porations under  foreign  statutes;  (14  Am.  St.  Rep.  355)  on  action  to  enforce  cause 
of  action  created  by  statute  of  another  state;  (59  Am.  St.  Rep.  876)  on  discretion 
to  decline  jurisdiction  of  transitory  causes  of  action  under  foreign  statutes. 
Action   for  death. 

Cited  in  De  Harn  v.  Mexican  Xat.  R.  Co.  86  Tex.  69,  23  S.  W.  381,  and  Mexican 
Nat.  R.  Co.  v.  Jackson,  89  Tex.  113,  31  L.  R.  A.  279,  59  Am.  St.  Rep.  28,  33  S.  W. 
857,  holding  that  court  will  not  adjudicate  rights  originating  under  statute  ma- 
terially differing  from  law  of  foruru;  Celt  v.  Gulf,  C.  &  S.  F.  R,  Co.  4  Tex.  Civ. 


1  L.R.A.  804]  L.  R.  A.  CASES  AS  AUTHORITIES.  190 

App.  234,  22  S.  W.  1062,  holding  dissimilar  foreign  statute  will  not  be  enforced 
in  state  where  action  is  brought;  Dale  v.  Atchison,  T.  &  S.  F.  R.  Co.  57  Kan.  605, 
47  Pac.  521,  holding  that  statute  giving  right  of  action  to  persons  other  than 
one  entitled  to  recover  where  action  is  brought  is  not  enforceable;  Slater  v. 
Mexican  Nat.  R.  Co.  194  U.  S.  129,  48  L.  ed.  904,  24  Sup.  Ct.  Rep.  581,  holding 
lump  sum  as  damages  not  recoverable  in  United  States  for  loss,  by  negligent 
killing  of  husband,  of  alimony  given  by  Mexican  law  to  wife;  McMillan  v.  Spider 
Lake  Saw  Mill  &  Lumber  Co.  115  Wis.  340.  60  L.  R.  A.  592,  95  Am.  St.  Rep.  947, 
91  N.  W.  979,  holding  nonresident  alien  relatives  of  deceased  not  entitled  to  bene- 
fit of  statute  giving  right  of  action  for  instant  death;  Mexican  C.  R.  Co.  v. 
Chantry,  69  C.  C.  A.  454,  136  Fed.  324  (dissenting  opinion),  on  right  of  action 
for  death,  accruing  under  foreign  statutes. 

Cited  in  notes  (15  L.  R.  A.  584)  on  right  of  action  for  death,  accruing  under 
foreign  statutes;  (56  L.  R.  A.  202,  205,  206,  208)  on  conflict  of  laws  as  to  action 
for  death  or  bodily  injury. 

Distinguished  in  Evey  v.  Mexican  C.  R.  Co.  38  L.  R.  A.  395,  26  C.  C.  A.  420, 
52  U.  S.  App.  118,  81  Fed.  307,  holding  dissimilarity  between  statute  giving 
cause  of  action  and  lex  fori,  chiefly  in  procedure,  does  not  preclude  maintenance 
of  action;  Texas  &  P.  R.  Co.  v.  Cox,  145  U.  S.  605,  36  L.  ed.  833,  12  Sup.  Ct.  Rep. 
905,  holding  right  to  recover  for  death  caused  by  negligence  will  be  enforced  in 
state  giving  like  right  under  same  facts. 

Disapproved  in  Anustasahas  v.  International  Contract  Co.  51  Wash.  121,  21 
L.R.A.(X.S.)  270,  130  Am.  St.  Rep.  1089,  98  Pac.  93,  holding  nonresident  aliens 
may  maintain  an  action  for  wrongful  death  under  statutes. 

1  L.  R.  A.  807,  BELVIX  v.  RICHMOND,  85  Va.  574,  8  S.  E.  378. 
Liability  of  municipality  for  negligence. 

Cited  in  notes  (6  L.  R.  A.  270)  on  liability  of  municipality  for  negligence;   (10 
L.R.A.  474)    on  liability  of  municipality  for  permitting  street  obstruction;    (20 
L.R.A.(N.S.)    601)    on   liability   of   municipality   for   defects    or    obstructions    in 
streets. 
Power  of  courts. 

Cited  in  Ex  parte  Birmingham,  134  Ala.  617,  59  L.  R.  A.  574,  33  So.  13,  holding 
court  may  prevent  travel  in  street,  the  noise  of  which  disturbs  proceedings. 

Cited  in  note  (22  L.  R.  A.  399)  on  power  of  courts  to  provide  necessary  places 
and  equipment  for  their  business. 

1  L.  R,  A.  808,  BURGESS  v.  TERRITORY,  8  Mont.  57,  19  Pac.  558. 
Misconduct  of  juror. 

Cited  in  Bradshaw  v.  Degenhart,  15  Mont,  271,  48  Am.  St.  Rep.  677,  39  Pac. 
'.92,  holding  mere  taking  of  drink  by  juror  not  enough  to  vitiate  verdict. 

Cited  in  note  (134  Am.  St.  Rep.  1035)  on  misconduct  of  jurors  other  than 
their  separation  for  which  a  verdict  may  be  set  aside. 

Distinguished  in  State  v.  Mott,  29  Mont.  301,  74  Pac.  728,  holding  the  court 
will  not  interfere  unless  motion  for  new  trial  shows  a  clear  abuse  of  discretion 
l>y  trial  court,  where  incompetency  of  a  juror  is  alleged. 
Rebutting  charge  of  juror's  misconduct. 

Cited  in  State  v.  Anderson,  14  Mont.  545,  37  Pac.  1,  holding  affidavit  of  third 
person  charging  use  of  improper  language  in  jury  room  offset  by  sworn  denial 
of  juror  and  six  cojurors;  State  v.  Gay,  18  Mont.  81,  44  Pac.  411,  and  State  v. 
Pepo,  23  Mont.  480,  59  Pac.  721,  holding  affidavits  of  jurors  competent  to  rebut 
charges  of  their  misconduct;  State  v.  Morrison,  67  Kan.  165,  72  Pac.  554,  re- 
fusing to  disqualify  jurors  who  denied  making  disqualifying  statements. 


397  L.  R-  A.  CASES  AS  AUTHORITIES.  [1  L-R-A.  819 

Estoppel  to  claim  error. 

Cited  in  State  v.  Lucey,  24  Mont.  304,  61  Pac.  994,  and  State  v.  McClellan,  23 
Mont.  537,  75  Am.  St.  Rep.  558,  59  Pac.  924,  holding  that  party  cannot  complain 
of  instruction  requested  by  himself. 
Instruction;  justifiable  homicide. 

Cited  in  State  v.  O'Brien,  18  Mont.  11,  43  Pac.  1091,  holding  instruction  that 
homicide  justifiable  where  reasonable  man  would,  under  same  circumstances, 
consider  himself  in  danger,  proper ;  State  v.  Hartley,  22  Nev.  362,  28  L.  R.  A. 
42,  40  Pac.  372,  holding  instruction  stating  rule  of  law  as  to  self-defense,  re- 
citing only  part  of  facts  relied  on  by  defendant,  not  prejudicial. 

Cited  in  note  (3  L.R.A.(N.S.)  544)  on  standpoint  of  determination  as  to  dan- 
ger and  necessity  to  kill  in  self-defense. 

State  jurisdiction  over  lands  of  United  States  within  state. 

Cited  in  note  (17  L.  R.  A.  721)  on  state  jurisdiction  over  lands  of  United 
States  within  state. 

Distinguished  in  State  v.  Tully,  31  Mont.  383,  78  Pac.  760,  3  A.  &  E.  Ann.  Gas. 
824,  holding  a  military  reservation  within  its  boundary  never  passed  by  an 
act  of  congress  granting  land  to  the  proposed  state  of  Montana. 

1  L.  R.  A.  816,  GOLDSMITH  v.  HOLMES,  13  Sawy.  526,  36  Fed.  484. 
Federal   jurisdiction   of  actions   on   negotiable   instruments. 

Cited  in  footnote  to  Wonderly  v.  Lafayette  County,  45  L.  R.  A.  386,  which 
holds  plaintiff's  false  pretense  of  ownership,  made  to  give  Federal  court  juris- 
diction, vitiates  judgment. 

Cited  in  note  (12  L.  R.  A.  683)  on  right  of  holders  of  negotiable  instruments 
to  sue  in  Federal  courts. 

Distinguished  in  Steel  v.  Rathbun,  42  Fed.  391,  holding  one  buying  note  "pay- 
able to  order  of "  and  inserting  name,  a  subsequent  holder,  not  entitled  to 

sue  in  Federal  court  where  transferrer  could  not. 
Pnrol  evidence  as  to  written  contract. 

Cited  in  footnotes  to  De  Pauw  v.  Bank  of  Salem,  10  L.  R.  A.  46,  which  holds 
right  of  accommodation  indorser  to  notice  of  dishonor  not  affected  by  agreement 
between  maker  and  payee;  Brook  v.  Latimer,  11  L.  R.  A.  805,  which  holds  ad- 
iiii>-iMe  evidence  of  contemporaneous  parol  agreement  that  payment  of  note 
would  never  be  enforced. 

Cited  in  notes  (17  L.  R.  A.  273)  on  proof  admissible  of  independent  facts  and 
circumstances  relative  to  written  contract;  (.4  L.  R.  A.  609)  on  admissibility 
of  parol  evidence  relative  to  written  contract;  (6  L.  R.  A.  33)  on  written  con- 
tracts as  evidence. 

1  L.  R.  A.  819,  WOOTEX  v.  STATE,  24  Fla.  335,  5  So.  39. 
Instruction  as  to  presumption  of  innocence. 

Cited  in  Houston  v.  State,  24  Fla.  357,  5  So.  48,  holding  failure  to  instruct  as 
to  presumption  of  innocence  ground  for  reversal;  Woodruff  v.  State,  31  Fla.  337, 
12  So.  653,  holding  instruction  as  to  presumption  of  innocence  sufficient;  Long 
v.  State,  42  Fla.  527,  28  So.  775,  on  proper  and  sufficient  instruction  as  to  pre- 
sumption of  innocence;  State  v.  Wolfley,  75  Kan.  417,  93  Pac.  337,  holding  a 
charge  on  the  presumption  of  innocence  as  a  positive  force  on  the  side  of  the 
defendant  was  sufficient. 
Presumption  as  to  gambling  devices. 

Cited  in  Richardson  v.  State,  41  Fla,  306,  25  So.  880,  holding  finding  of 
gambling  devices  in  house  not  prima  facie  evidence  of  use  for  gambling. 


1  L.R.A.  819]  L.  R.  A.  CASES  AS  AUTHORITIES.  198 

Right  to   seize  gambling  instruments. 

Cited  in  footnote  to  Police  Comrs.  v.  Wagner,  52  L.  R.  A.  775,  holding  that 
police  officers  may  be  invested  with  power  to  make  seizures. 
Liability   of   agent   keeping   gambling   place. 

Cited  in  McBricle  v.  State,  39  Fla.  450,  22  So.  711,  holding  evidence  that  ac 
eused  acted  as  agent  immaterial. 
J'ower  of  legislature  ro  wake  rule  as  to  prima  faeie  evidence. 

Cited  in  Houston  v.  State,  24  Fia.  357,  5  So.  48,  holding  that  statute  making 
finding  of  implements  prima  facie  evidence  that  house  used  for  gambling  does 
not  take  away  right  to  benefit  of  presumption  of  innocence;  State  v.  Bingham,  42 
W.  Va.  237,  24  S.  E.  883,  upholding  statute  authorizing  presumption  of  con- 
spiracy from  finding  men  together,  engaged  in  wrongful  act. 

Cited  in  footnotes  to  Vega  S.  S.  Co.  v.  Consolidated  Elevator  Co.  43  L.  R.  A. 
843,  which  holds  legislature  cannot  make  weighmaster's  weights  conclusive  evi- 
dence; Pennsylvania  Co.  v.  McCann,  31  L.  R.  A.  651,  which  holds  general  assem- 
bly may  prescribe  circumstances  which  shall  constitute  prima  facie  evidence. 

Cited   in  notes    (36  Am.  St.  Rep.  685)    on  validity  of  statutes   creating  pre- 
sumptions. 
Writ  of  error  in  criminal  cases. 

Cited  in  State  v.  Mitchell,  29  Fla.  307,  10  So.  746,  holding  writ  authorized  by 
statute. 
Jnstructions    to    jury. 

Cited  in  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Peninsular  Land,  Transp.  &  Mfg. 
Co.  27  Fla.  113,  17  L.  R.  A.  55,  9  So.  653;  Woodruff  v.  State, '31  Fla.  337,  12  So. 
(553;  Johnston  v.  State,  29  Fla.  564,  10  So.  686, — holding  instruction  covered 
by  charge  of  court  properly  refused;  Hayes  v.  Todd,  34  Fla.  243,  15  So.  752,  re- 
fusing to  reverse  where  instruction,  although  intemperate,  correctly  stated  the 
law  of  slander;  Brown  v.  State,  46  Fla.  165,  35  So.  82,  holding  it  is  not  error 
to  refuse  instruction  embraced  in  other  charges. 
•Grounds  for  reversal. 

Cited  in  Reddick  v.  State,  25  Fla.  115,  5  So.  704,  holding  admission  of  illegal 
testimony  ground,  unless  clear  no  injury  done  defendant;  Jacksonville,  M.  P. 
R.  &  Nav.  Co.  v.  Warriner,  35  Fla.  209,  16  So.  898,  refusing  to  reverse  correct 
judgment  for  refusal  of  correct  instruction;  Johnston  v.  State,  29  Fla.  564,  10 
So.  686,  holding  verdict  clearly  sustained  by  evidence  not  defeated  by  error  in 
instruction;  Hopkins  v.  State,  52  Fla.  49,  42  So.  52,  holding  admission  or  re- 
jection of  testimony  which  does  not  reach  the  legality  of  the  trial  itself  is  not 
ground  for  reversal. 
Effect  of  statute  unconstitutional  in  part. 

Cited  in  Hayes  v.  Walker,  54  Fla.  169,  44  So.  747,. holding  the  unconstitutional 
part  of  a  statute  may  be  disregarded  and  effect  given  to  the  remainder  where  it 
is  not  dependent  upon  the  unconstitutional  part  for  effectiveness. 
Basis  of  determination  of  invalidity  of  statutes. 

Cited  in  Long  v.  State,  58  Tex.  Grim.  Rep.  212,  127  S.  W.  208,  21  Ann.  Cas. 
405,  holding  that  statute  must  violate  letter,  and  not  simply  spirit  of  constitution 
to  be  declared  void. 

1  L.  R.  A.  825,  NETSO  v.  STATE,  24  Fla.  363,  5  So.  8. 
.Judicial  notice. 

Cited  in  footnote  to  Com.  v.  King,  5  L.  R.  A.  536,  holding  that  judicial  notice 
be  taken  that  river  not  public  highway. 


199  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  826 

Cited  in  notes  (124  Am.  St.  Rep.  29)  on  facts  of  which  courts  will  take  judicial 
notice. 
AM  to   what   liquors  are   intoxicating:. 

Cited  in  State  v.  Sioux  Falls  Brewing  Co.  5  S.  D.  45,  26  L.  R.  A.  139,  58  N.  W. 
1,  refusing  to  take  judicial  notice  that  beer  is  intoxicating;  Purcell  v.  State,  61 
Fla.  44,  55  So.  847,  holding  that  courts  will  take  judicial  notice  that  beer  is 
malt  liquor;  Cassens  v.  State,  48  Tex.  Crim.  Rep.  188,  88  S.  W.  229,  holding 
there  must  be  proof  that  the  beer  sold  or  given  away  was  an  intoxicating  liquor; 
Potts  v.  State,  50  Tex.  Crim.  Rep.  370,  7  L.R.A.(N.S.)  197,  123  Am.  St.  Rep.  847, 
07  S.  W.  477,  holding  the  court  does  not  judicially  know  that  the  general  term 
"luv r"  means  an  intoxicating  liquor;  Gripe  v.  State,  4  Ga.  App.  833,  62  S.  E.  567, 
holding  judicial  notice  is  taken  of  the  intoxicating  qualities  of  lager  beer;  Cald- 
well  v.  State,  43  Fla.  550,  30  So.  814,  holding  same  as  to  wine. 

Cited  in  notes  (2  L.  R.  A.  408;  20  L.  R.  A.  649)   on  judicial  notice  as  to  what 
liquors  intoxicating. 
What    liquors   are   Intoxicants. 

Cited  in  Shreveport  Ice  &  Brewing  Co.  v.  Brown,  128  La.  412,  54  So.  923,  holding 
that  near  beer  is  not  intoxicant. 

1  L.  R.  A.  826,  KATZ  v.  BEDFORD,  77  Cal.  319,  19  Pac.  523. 
Rescission   of  contract. 

Cited  in  Copew  v.  Durand,  153  Cal.  281,  16  L.R.A.(N.S.)  793,  95  Pac.  38, 
holding  the  production  of  the  certificate  of  architect  is  dispensed  with  where 
work  is  completed  to  the  satisfaction  of  owner  and  architect,  and  the  latter 
refuses  to  issue  such  certificate  for  final  payment. 

Cited  in  footnotes  to  Rappleye  v.  Racine  Seeded  Co.  7  L.  R.  A.  139,  which  holds 
contract  of  sale  rescindable  on  insolvency  of  buyer  before  delivery;  Springfield 
F.  &  M.  Ins.  Co.  v.  Hull,  25  L.  R.  A.  37,  which  holds  party  rescinding  need  not 
restore  consideration  of  void  contract. 

Cited  in  notes    (9  L.  R.  A.  607)    on  rights  of  party  defrauded  on  rescission 
of  contract;    (6  L.  R.  A.  503)    on  effect  of  rescission. 
When  contract  entire. 

Cited  in  Nichols  &  S.  Co.  v.  Charlebois,  10  X.  D.  450,  88  X.  W.  80,  holding 
contract  for  sale  of  several  distinct  things  for  one  consideration,  entire;  Schlosser 
v.  Moores,  16  N.  D.  191,  112  X.  W.  78,  holding  fact  that  the  total  purchase 
price  is  stated  where  contract  stipulates  the  number  of  bushels  and  price  per 
bushel  of  two  kinds  of  seed,  will  not  make  the  contract  entire  and  indivisible. 
Recovery  on  quantum  meruit. 

Cited  in  Gove  v.  Island  City  Mercantile  &  Mill  Co.  19  Or.  369,  24  Pac.  521, 
holding  that  repairer  of  mill  can  recover  on  quantum  meruit,  where  defense  is 
that  work  was  not  done  in  workmanlike  manner. 

Cited  in  note   (59  Am.  St.  Rep.  284)   on  recovery  on  quantum  meruit. 
Duty  of  court  to  compel  an  election  between  separate  courts. 

Cited   in  Remy  v.  Olds,    (Cal.)    21    L.R.A.  647.   34   Pac.   216,   holding   it  not 
error  to  refuse  to  compel  an  election  between  counts,  although  the  same  cause  of 
action  is  stated  in  separate  counts. 
Estoppel  by  conduct. 

Cited  in  note  (11  Eng.  Rul.  Cas.  102)  on  estoppel  by  conduct. 
Modification  of  contract  by  subsequent  parol  agreement. 

Cited  in  notes  (11  Am  St.  Rep.  394:  56  Am.  St.  Rep.  661)  on  modification  of 
written  contract  by  subsequent  parol  agreement. 


1  L.R.A.  829]  L.  R.  A.  CASES  AS  AUTHORITIES.  200 

1  L.  R.  A.  829,  BURLINGAME  v.  ROWLAND,  77  Cal.  315,  19  Pac.  526. 
Improvement    of    land    as    consideration    for    conveyance. 

Cited  in  Brothers  v.  Brothers,  29  Colo.  71,  66  Pac.  901,  holding  that  by  agree- 
ment to  improve  property  as  recompense  for  services  son  became  equitable  owner  j. 
Manning  v.  Franklin,  81  Cal.  208.  22  Pac.  550.  holding  erection  of  building  in  land 
under  parol  contract,  in  consideration  of  right  to  life  occupancy,  taken  out  of 
statute  by  performance  during  life;  Darke  v.  Smith.  14  Utah.  41.  4-"i  Pac.  lOOfi. 
holding  valuable  improvements  made  and  possession  taken  and  held  in  pursuance 
of  promise  to  execute  deed  of  gift,  sufficiently  proven,  entitles  promisee  to  specific 
performance. 

Distinguished  in  Valentine  v.  Streeton,  9  Cal.  App.  644,  99  Pac.  1107,  holding 
where  improvements  are  made  under  a  lease,  the  forfeiture  of  which   had  not 
been  claimed,  an  intention  of  making  a  gift  does  not  appear. 
Specific  performance  of  oral  agreement  as   to  land. 

Cited  in  notes  (22  Am.  St.  Rep.  238;  29  Am.  St.  Rep.  48)  on  specific  per- 
formance of  oral  agreement  as  to  land. 

1   L.  R.  A.   830,  WASHINGTON  v.  RALEIGH  &  G.  R.   CO.   101   N.   C.   239,   7 

S.  E.  789. 
Liability  of  carrier  on  connecting:  line. 

Cited  in  White  v.  Norfolk  &  S.  R.  Co.  115  N.  C.  635,  44  Am.  St.  Rep.  489,  20 
S.  E.  191,  holding  railroad  liable  for  injury  to  passenger  on  its  boat  chartered 
to  an  excursion  manager;  Cherry  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  61  Mo.  App. 
310,  holding  railroad  selling  ticket  to  point  beyond  its  line  liable  for  wrongful 
expulsion  of  passenger  on  connecting  line;  Carleton  v.  Yadkin  R.  Co.  143  N.  C'. 
50,  55  S.  E.  429,  10  A.  &  E.  Ann.  Cas.  34,  holding  where  two  roads  are  leased 
to  same  lessee,  a  tort  or  breach  committed  by  a  conductor  on  one  road  docs  not 
render  the  other  road  liable. 

Cited  in  notes  (4  L.  R.  A.  376)  on  connecting  lines  of  railroad;  fundamental 
law  construed;  (9  L.  R.  A.  836)  on  contract  made  by  freight  agent  for  freight 
transportation;  (5  Eng.  Rul.  Cas.  463;  106  Am.  St.  Rep.  610)  on  liability  of 
initial  carrier  for  torts  or  negligence  of  connecting  lines. 

1  L.  R.  A.  833,  MORRISON  v.  WATSON.  101  N.  C.  332,  7  S.  E.  79.). 

Appeal  dismissed  for  want  of  jurisdiction  in  154  U.  S.  Ill,  38  L.  ed.  927,  14 
Sup.  Ct.  Rep.  995. 
Homestead. 

Cited  in  Vanstory  v.  Thornton,  112  N.  C.  220,  34  Am.  St.  Rep.  483,  17  S.  E. 
566  (dissenting  opinion),  majority  holding  homestead  right  salable,  and  pur- 
chaser entitled  to  hold  land  to  exclusion  of  ordinary  senior  judgment  creditor 
until  such  right  terminates. 

Disapproved  in  part  in  Long  v.  Walker,  105  N.  C.  99,  10  S.  E.  858,  holding  sal« 
under  execution  for  costs  on  debt  contracted  before  Constitution  was  adopted 
valid  without  laying  off  homestead. 

1   L.  R.  A.  837,  PHILLIPS  v.  FERGERSON,  85  Va.  509,   17  Am.  St.  Rep.   78, 

8  S.  E.  241. 
Eqnitable    conversion. 

Cited  in  Gallagher  v.  Rowan,  86  Va.  824,  11  S.  E.  121,  holding  conversion  of 
realty  into  personalty  effective,  although  purpose  of  conversion  partially  fails. 

Cited  in  notes  (3  L.R.A.  145)  on  conversion  of  real  proper ty  into  personalty; 
(20  L.R.A. (N.S.)  119)  as  to  where  there  is  such  a  failure  of  testator's  purpose 


201  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  840 

as  to  preclude  equitable  conversion;    (7  Eng.  Rul.  Cas.  23,  25)  on  equitable  con- 
version of  realty  into  personalty,  and  vice  versa. 
Conditions   in   restraint   of  marriage  or  against  contesting  will. 

Cited  in  Fifield  v.  Van  Wyck,  94  Va.  563,  64  Am.  St.  Rep.  745,  27  S.  E.  446, 
holding  condition  forfeiting  bequest  of  personalty  in  case  of  litigation  over  will, 
in  terrorem,  where  no  gift  over  on  breach;  Robinson  v.  Martin,  200  X.  Y.  175, 
•93  N.  E.  488  (dissenting  opinion),  on  creation  of  condition  in  restraint  of  mar- 
riage by  trust  for  son  payable  at  his  death  to  unmarried  daughters. 

Cited  in  footnotes  to  Mann  v.  Jackson,  16  L.R.A.  707,  which  holds  devise  of 
life  estate  to  daughter  "unless  she  shall  be  married"  valid  where  gift  over  in 
•such  event;  Herd  v.  Catron,  37  L.  R,  A.  731,  which  holds  devise  to  wife,  with 
•gift  over  in  event  of  her  remarriage,  valid;  Ransdell  v.  Boston,  43  L.  R.  A.  526, 
which  holds  devise  to  son  for  life,  but,  in  event  of  securing  divorce  from  present 
wife,  in  fee,  not  void  where  divorce  suit  already  instituted;  King  v.  King,  52 
L.  R.  A.  157,  which  holds  provision  against  marriage  in  contract  for  perform- 
ance of  labor  does  not  render  entire  contract  void. 

Cited  in  notes   (84  Am.  St.  Rep.  148,  149,  150)   on  conditions  in  restraint  of 
marriage;    (25  Eng.  Rul.  Cas.  637)   on  validity  of  condition  in  restraint  of  mar- 
riage. 
•Conditions  precedent  and  subsequent. 

Cited  in  Mollencamp  v.  Farr,  70  Kan.  791,  79  Pac.  646,  holding  fact  that  no 
forfeiture  in  set  terms  is  provided  by  terms  of  will,  in  case  there  is  a  failure 
~to  perform  the  conditions  named,  does  not  give  validity  to  a  devise  of  realty. 

Cited  in  footnote  to  Re  Jones,  48  L.  R.  A.  580,  which  holds  interest  con- 
tingent until  decision  of  executors  under  legacy  entitling  legatee  thereto  on  con- 
dition that  executors  declare  him  reformed  within  limited  period. 

Cited  in  notes  (9  L.R.A.  166)   on  conditions  precedent;    (70  Am.  St.  Rep.  834) 
on  impossibility  of  performance  of  conditions  precedent  or  consequent. 
Parol    evidence. 

Cited  in  notes  (6  L.  R.  A.  43)  on  admissibility  of,  to  identify  person  and  prop- 
erty;   (17  L.  R.  A.  272)    on  exceptions  to  rule  against  admission  of  parol  evi- 
dence;  (50  Am.  St.  Rep.  287,  288)  on  extrinsic  evidence  to  explain  wills. 
What  constitutes  "family." 

Cited  in  Brett  v.  Donaghe,  101  Va.  789,  45  S.  E.  324,  holding  grandchild  not 
entitled  to  participate  in  trvist  fund  as  member  of  grandfather's  family. 

Cited  in  footnote  to  Mover  v.  Drummond,  7  L.  R.  A.  747,  which  holds 
brother,  supporting  sister,  head  of  family  within  homestead  laws. 

1  L.  R.  A.  840,  OLMSTEAD  v.  MICHELS,  36  Fed.  455. 

Affirmed  in  157  U.  S.  200,  39  L.  ed.  671,  15  Sup.  Ct.  Rep.  580. 
Understanding   of  terms   of   contract. 

Cited  in  Mower  Harwood  Creamery  &  Dairy  Supply  Co.  v.  Hill,  135  Iowa,  604, 
113  X.  W.  466,  holding  one  signing  a  contract  for  shares  in  a  co-operative  or- 
ganization will  not  be  heard  to  say  he  did  not  read  the  contract  where  there 
appears  no  sufficient  reason  for  his  failure  to  close;  American  Fruit  Produce 
Co.  v.  Barrett,  113  Minn.  27,  128  X.  W.  1009,  holding  that  contract  in  plain  and 
unambiguous  language  cannot  be  reformed,  where  it  is  without  deception,  signed 
with  full  knowledge  of  terms  on  verbal  assurance  that  it  will  not  be  enforced 
as  written. 

Cited  in  footnote  to  Och  v.  Missouri,  K.  &  T.  R.  Co.  36  L.  R.  A.  442,  which 
•holds  release  obtained  while  injured  passenger  still  dazed  by  shock  void. 


1  L.R.A.  840]  L.  R.  A.  CASES  AS  AUTHORITIES.  202 

1  L.  R.  A.  842,  HUNT  v.  OREGON  P.  R.  Co.  36  Jed.  481. 
Damages  for  breach  of  contract. 

Cited  in  Hoskins  v.  Scott.  52  Or.  277.  06  Pac.  1112,  holding  damages  which 
can  be  ascertained  with  reasonable  certainty  and  was  contemplated  by  the 
parties  at  time  contract  was  made,  may  be  recovered  where  they  are  the  natural 
and  probable  consequence  of  the  breach. 

Cited  in  notes  (6  L.  R.  A.  552;  11  L.  R.  A.  681)  on  damages  for  breach  of 
contract;  (4  L.  R.  A.  670)  on  measure  of  damages  for  breach  of  contract  to 
convey;  (18  L.  R.  A.  386)  on  measure  of  damages  for  breach  of  implied  war- 
ranty; (53  L.  R.  A.  44)  on  distinction  between  direct  and  collateral  profits  as 
element  of  damages  for  breach  of  contract. 
By  contractor. 

Cited  in  American  Surety  Co.  v.  Woods,  45  C.  C.  A.  286,  105  Fed.  745,  holding 
in  action  against  contractor,  where  employer  has  not  completed  work,  difference 
between  contract  price  and  cost  of  completion  not  recoverable ;  Northwestern 
Steam  Boiler  &  Mfg.  Co.  v.  Great  Lakes  Engineering  Works,  104  C.  C.  A.  52, 
181  Fed.  42,  holding  that  unexercised  option  to  complete  contract  does  not 
prevent  contractee  from  recovering  damages  for  delay  of  contractor  who  finishes 
work  after  stipulated  time;  Donaldson  v.  State,  46  Ind.  App.  282,  90  N.  E.  132, 
holding  that  measure  of  damages  for  breach  of  contract,  where  contract  is  relet, 
is  difference  between  first  contract  price  and  cost  of  completion  plus  amount  paid 
on  first  contract. 

Cited  in  note    (53  L.  R.  A.  49)    on  loss  of  profits  as  element  of  damages  for 
breach  of  contract  for  construction  of  ways,  bridges,  etc. 
By  employer. 

Cited  in  Danforth  v.  Tennessee  &  C.  R.  Co.  93  Ala.  620,  11  So.  60,  holding  dif- 
ference between  cost  of  doing  work  and  contract  price  recoverable  from  employer 
on  breach  of  contract. 

1   L.  R.  A.  844,  HINES  v.  CHARLOTTE,  72  Mich.  278,   40  N.   W.   333. 
Liability  of  municipal  corporations. 

Cited  in  Udkin  v.  New  Haven,  80  Conn.  295.  14  L.R.A.(N.S.)  870,  68  Atl.  253, 
holding  as  respects  discretionary  powers  generally,  no  liability  attaches  to  the- 
city  either  for  their  non-exercise  or  the  manner  of  their  exercise. 

Cited    in   notes    (2   L.R.A.    607)    on   municipal   corporation    liable   for   damage 
caused  by  grading  street;    (5  L.  R.  A.  254)   on  municipalities  liable  for  injuries 
resulting  from   defective  streets,   etc.;    (38   L.   R.   A.    170)    on  municipal   power 
over  wooden  and  frame  buildings  as  nuisances. 
For  failure  to  enforce  ordinance. 

Cited  in  Coonley  v.  Albany,  132  N.  Y.  153,  30  N.  E.  382,  holding  city  not  lia- 
ble for  failure  to  enforce  ordinance  providing  for  removal  of  boats  sunk  at  dock: 
Anderson  v.  East,  117  Ind.  127,  2  L.  R.  A.  714,  10  Am.  St.  Rep.  36,  19.  N.  E.  72G, 
holding  municipality  not  liable  for  damage  to  building  by  falling  of  adjoin- 
ing owner's  wall,  though  notified  of  dangerous  condition;  Joslyn  v.  Detroit,  74 
Mich.  463,  42  N.  W.  50  (dissenting  opinion),  majority  holding  city  liable  for 
injuries  occasioned  by  failure  to  enforce  ordinance  requiring  signals  placed 
where  building  materials  obstruct  street;  Hull  v.  Roxboro.  142  N.  C.  456,  12 
L.R.A.(N.S.)  640,  55  S.  E.  3.51,  holding  if  corporation,  under  power  granted  in 
its  charter,  has  enacted  ordinances  it  is  not  civilly  liable  for  any  omission  to 
enforce  them. 
For  acts  or  omissions  of  officers  or  agents. 

Cited  in  Kilts  v.  Kent  County,  162  Mich.  649,  —  L.R.A.(N.S.)  — ,  1-27  N.  V 


203  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  847 

821,  holding  supervisors  not  liable  for  death  of  employee  of  contractor  from  negli- 
gent construction  of  water  system  for  county  poor  farm. 

Cited  in  footnotes  to  Culver  v.  Streator,  6  L.  R.  A.  270,  which  holds  city  not 
liable  for  negligence  of  one  employed  to  enforce  dog  ordinance;  Curran  v.  Bos- 
ton, 8  L.  R.  A.  243,  which  holds  city  not  liable  for  negligence  of  officer  managing 
workhouse  voluntarily  maintained;  Butterfield  v.  Boston,  2  L.  R.  A.  447,  which 
holds  city  not  liable  for  momentary  negligence  of  gateman  at  drawbridge:  Wil- 
son v.  Mitchell,  65  L.R.A.  158,  which  holds  that  municipality  cannot  ratify  act 
of  waterworks  superintendent  in  wrongfully  connecting  well  with  city  water 
mains  so  as  to  become  liable  for  water  taken  from  the  well. 

Cited  in  notes  (2  L.  R.  A.  366)  on  liability  for  negligence  of  city  officials;  (4 
L.  R.  A.  327)  on  liability  of  municipality  for  acts  of  officers  or  agents,  on  what 
depends;  (2  L.  R.  A.  501,  713;  9  L.  R.  A.  209)  on  municipal  corporation;  when 
not  liable  for  acts  or  omissions  of  officers  or  agents. 

1  L.  R.  A.  847,  SUGGS  v.  TRAVELERS  INS.  CO.  71  Tex.  579,  9  S.  W.  676. 
Expiration  of  right  l»y  lapse  of  time. 

Cited  in  Savings  &  T.  Co.  v.  Bear  Valley  Irrig.  Co.  89  Fed.  39,  holding  judg- 
ment creditor's  statutory  lien  expires  with  lapse  of  prescribed  period,  although 
property  in  hands  of  receivers;  Bartlett  v.  Manor,  146  Ind.  627,  45  N.  E.  1060r 
holding  time  within  which  to  substitute  unprobated  will  under  statute  is  not 
extended  by  fraudulent  concealment  of  unprobated  will :  Matthews  v.  American 
Cent.  Ins.  Co.  9  App.  Div-  348,  41  N.  Y.  Supp.  304,  holding  time  within 
which  to  enforce  fire  policy  not  extended  by  death  of  insured  and  failure  of  ex- 
ecutor to  qualify  within  period;  Travelers  Ins.  Co.  v.  California  Ins.  Co.  1  N. 
D.  158,  8  L.  R.  A.  772,  45  N.  W.  703,  holding  delay  in  enforcing  fire  policy  not 
excused  by  sickness  of  insured;  Dolan  v.  Royal  Neighbors,  123  Mo.  App.  156,  1001 
S.  W.  498,  holding  the  statute  of  limitations  operates  in  the  nature  of  a  condi- 
tion precedent  to  forfeit  the  liability  when  suit  is  not  instituted  within  the  stipu- 
lated time;  Peters  v.  Hanzer,  67  C.  C.  A.  386,  134  Fed.  589,  holding  the  statutory 
restriction  on  right  of  action  for  infringement  of  a  patent  is  to  be  considered 
a  restriction  on  the  statutory  right  of  recovery  rather  than  as  an  ordinary  stat- 
ute of  limitation. 

Cited  in  footnote  to  Union  Central  L.  Ins.  Co.  v.  Spinks,  69  L.R.A.  264,  which 
holds  void  provision  that  suit  shall  be  brought  on  life  policy  within  period  less 
than  that  fixed  by  statute  of  limitations. 

Cited  in  notes   (13  L.  R.  A.  266)   on  limitation  of  right  to  sue  on  insurance 
policy;    (47  L.  R.  A.  710)   on  what  will  prevent  or  delay  the  running  of  statute- 
of  limitations;  (25  Am.  St.  Rep.  485)  on  time  within  which  action  may  be  brought 
on  insurance  policy. 
Infancy   of   person   entitled    to   sue. 

Cited  in  Mutual  Ben.  L.  Ins.  Co.  v.  Harvey,  117  Ky.  840,  111  Am.  St.  Rep, 
269,  79  S.  W.  218,  holding  infancy  of  beneficiaries  is  no  excuse  for  failure  to- 
elect  to  take  up  paid  up  insurance  upon  lapse  of  policy;  Mead  v.  Phcenix  Ins.  Co. 
68  Kan.  435,  64  L.R.A.  ?],  104  Am.  St.  Rep.  412,  75  Pac.  475,  holding  the  con- 
tract limitation  in  the  policy  controlled  the  general  statute  of  limitations  even 
against  minor  beneficiaries;  Fey  v.  I.  0.  0.  F.  Mut.  L.  Ins.  Co.  120  Wis.  367,  98 
X.  W.  206.  holding  statutory  exception  in  favor  of  minors  does  not  affect  the 
contract  limitation;  Heilig  v.  JEtna  L.  Ins.  Co.  152  N.  C.  360,  67  S.  E.  927,  held 
ing  infancy  of  the  insured  is  no  defense  to  failure  to  bring  action  to  recover  loss 
within  the  limiting  time  to  sue. 

Cited  in   footnote  to  Mead  v.   Phoenix  Ins.  Co.  64   L.  R.   A.  79,   which   hol-ls 


1  L.E.A.  847]  L.  R.  A.  CASES  AS  AUTHORITIES.  204 

minor  owning  dwelling  house  not  exempt  from  complying  with  time  stipulation 
for   action   on   policy. 

Cited  in  note  (1  L.R.A.(X.S.)  525)  on  stipulation  in  contract  as  to  time  for 
suit  thereon  as  binding  on  infant. 

1  L.  R.  A.  849,  GULF,  C.  &  S.  F.  R.  CO.  v.  STATE,  72  Tex.  404,  2  Inters.  Com. 

Rep.   335,   13  Am.   St.   Rep.   815,   10   S.   W.   81. 
Jmlicial  notice. 

Cited  in  Miller  v.  Texas  &  N.  0.  R.  Co.  83  Tex.  520,  18  S.  W.  954,  and  Texas 
&  P.  R.  Co.  v.  Black,  87  Tex.  165,  27  S.  W.  118,  holding  court  will  take  judicial 
notice  of  locality  of  railways:  Texas  Standard  Oil  Co.  v.  Adoue,  83  Tex.  658, 
15  L.  R.  A.  601;  29  Am.  St.  Rep.  690,  19  S.  W.  274,  holding  judicial  notice  may 
be  taken  that  certain  cities  are  commercial  centers  of  state,  as  well  as  of 
cotton-producing  regions;  Worden  v.  Cole,  74  Kan.  230,  86  Pac.  464.  holding  judi- 
cial notice  will  be  taken  of  the  permanent  location  of  a  railroad  traversing  the 
state  and  of  state  lands  granted  to  the  railroad  and  lying  within  limits  of  such 
location;  Texas  £  X.  0.  R.  Co.  v.  Walker,  43  Tex.  Civ.  App.  279,  95  S.  W.  743, 
holding  judicial  notice  is  taken  of  the  respective  runs  of  railroads  between  a  point 
in  the  state  and  one  in  an  adjoining  state. 

Cited  in  footnote  to  Com.  v.  King,  5  L.  R.  A.  536,  which  holds  court  will  take 
judicial  notice  that  Connecticut  river  above  Holyoke  not  a  highway  for  in- 
terstate commerce. 

Cited  in  note  (4  L.  R.  A.  38)  on  judicial  notice  as  to  matters  of  general  knowl- 
edge. 

Distinguished  in  Missouri,  K.  &  T.  R.  Co.  v.  Lightfoot,  48  Tex.  Civ.  App.  128, 
106  S.  W.  395,  holding  the  court  does  not  take  judicial  notice  of  a  stop  on  a 
railroad  not  a  county  seat  and  does  not  know  judicially  the  fare  between  two 
points. 
Contracts  limiting:  competition. 

Cited  in  footnote  to  Chaplin  v.  Brown,  12  L.  R.  A.  428,  which  holds  agreement 
not  to  deal  in  butter  if  new  butter  store  established,  void  as  tending  to  create 
monopoly. 

Cited  in  notes   (13  L.  R.  A.  771)   on  nature  of  monopolies;    (11  L.  R.  A.  437) 
on  contracts  to  regulate  competition  in  trade  not  illegal;    (2  L.  R.  A.   34)    on 
agreements  to  stifle  competition  void;    (64  L.  R.  A.  696)   on  illegal  trusts  under 
modern    anti-trust    laws. 
—  Remedy. 

Cited  in  Territory  v.  Long  Bell  Lumber  Co.  22  Old  a.  905,  99  Pac.  911,  holding 
combinations   in   restraint   of  trade   may  be  proceeded   against   by   injunction   to 
prevent  a  continuance. 
Corporate  consolidation  and  pnrcliase  of  stock  of  other  company. 

Cited  in  notes  (7  L.  R.  A.  606)  on  restriction  on  power  of  corporation  to 
deal  in  stock  of  others;  (52  L.  R.  A.  374)  on  right  of  corporation  to  consoli- 
date, as  affected  by  organic  law,  and  (52  L.  R.  A.  381)  as  affected  by  com- 
mon law;  (52  L.  R.  A.  377)  on  interpretation,  application,  and  construction  of 
laws  restricting  consolidation;  (52  L.  R.  A.  391)  on  corporate  consolidation. 
Restriction  of. 

Cited  in  Louisville  &  X.  R.  Co.  v.  Kentucky,  161  U.  S.  703,  40  L.  ed.  860,  16 
Sup.  Ct.  Rep.  714,  holding  state  prohibition  of  consolidation  of  competing  rail- 
roads valid  exercise  of  police  power:  Chicago,  M.  &  St.  P.  R.  Co.  v.  Wabash,  St. 
L.  &  P.  R.  Co.  9  C.  C.  A.  664;  17  U.  S.  App.  1,  61  Fed.  999,  holding  contract  be- 
Iween  railroads  limiting  competition  void  as  against  public  policy;  East  St. 


205  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  856 

Louis  C.  R.  Co.  v.  Jarvis,  34  C.  C.  A.  648,  82  Fed.  744,  holding  ten-year  lease 
of  competing  road  "consolidation,"  within  constitutional  inhibition. 

Cited  in  footnote  to  Langdon  v.  Central  R.  &  Bkg.  Co.  2  L.  R.  A.  120,  which 
holds  purchase  of  construction  contract  and  securities  of  competing  railroad, 
with  view  to  prevent  construction,  illegal  under  anti-monopoly  provision  of 
state  Constitution. 

Cited  in  notes  (45  L.  R.  A.  273)  on  restrictions  on  consolidation  of  parallel 
or  competing  roads;  (45  L.  R.  A.  275)  on  what  are  competing  lines. 

1  L.  R.  A.  854,  WATSON  v.  LEDERER,  11  Colo.  577,  7  Am.  St.  Rep.  263,  19 

Pac.  602. 
Exemptions. 

Cited  in  Martin  v.  Bond,  14  Colo.  472,  24  Pac.  326,  holding  stock  in  trade  of 
merchant  exempt;  Re  Conley,  162  Fed.  807,  holding  a  horse,  harness  and  wagon 
of  a  dealer  in  eggs  and  poultry  and  used  to  bring  product  to  market  is  exempt 
under  a  statute  exempting  "the  tools  etc.,  used  and  kept  for  the  purpose  of 
carrying  on  his  trade  or  business." 

Cited  in  footnotes  to  Consolidated  Tank  Line  Co.  v.  Hunt,  12  L.  R.  A. 
476,  which  holds  horse  and  team  of  oil  merchant  exempt  as  that  of  "team- 
ster" who  habitually  earns  living  thereby,  although  sporadic  sales  are  made 
at  shop;  Equitable  Life  Assur.  Soc.  v.  Goode,  35  L.  R.  A.  690,  which  holds 
law  books  exempt  where  owner  earns  portion  of  support  by  legal  work,  though  he 
does  not  appear  in  court  or  entirely  support  himself  by  legal  services;  David- 
son v.  Hannon,  34  L.  R.  A.  718,  which  holds  photographic  lens  an  implement 
of  photographer's  trade;  Terry  v.  McDaniel,  46  L.  R.  A.  559,  which  holds 
barber's  chair  and  looking-glass  exempt  as  tools  of  trade;  Williams  v.  Vincent, 
68  L.R.A.  634,  which  holds  bowling  alley  not  exempt  from  execution  as  tools 
or  implements  of  trade. 

Cited  in  note  in  (123  Am.  St.  Rep.  145)  on  exemption  of  tools  and  implements. 
Allowance  of  fees  of  Justice  of  peace. 

Cited  in  Pitkin  County  v.  Sanders,  27  Colo.  125,  59  Pac.  402,  holding  allow- 
ance in  criminal  trials  discretionary  with  board  of  county  commissioners. 

1  L.  R.  A.  856,  MEIER  v.  PORTLAND  CABLE  R.  CO.  16  Or.  500,  19  Pac.  610. 
Implied  dedication. 

Followed  in  Hogue  v.  Albina,  20  Or.  186,  10  L.  R.  A.  675,  25  Pac.  386,  and 
Hicklin  v.  McClear,  18  Or.  142,  22  Pac.  1057,  holding  dedication  of  street, 
without  formal  acceptance,  irrevocable  by  conveyance  of  lots  with  reference  to 
unrecorded  plat  of  land  in  question;  Conrad  v.  West  End  Hotel  &  Land  Co.  126 
N.  C.  779,  36  S.  E.  282,  and  Steel  v.  Portland,  23  Or.  183,  31  Pac.  479,  holding 
same  principle  applicable  to  platted  parks;  Porter  v.  Carpenter,  39  Fla.  20,  21 
So.  788,  holding  purchaser  with  reference  to  unrecorded  plat  entitled  to  keep  open 
for  public  use  streets  laid  out  thereon;  Spencer  v.  Peterson,  41  Or.  259,  68  Pac. 
519,  holding  roads  dedicated  to  public  use  by  owner  recording  plat  designating 
them,  and  selling  property  with  reference  thereto;  Nodine  v.  Union,  42  Or.  616, 
72  Pac.  582,  holding  common-law  dedication  not  accomplished  by  estoppel, 
where  plat  was  not  acknowledged  and  land  not  surveyed;  Hughes  v.  Clark, 
134  N.  C.  460,  46  S.  E.  956,  holding  streets  dedicated  by  sale  of  land  with  ref- 
erence to  plat  on  which  they  were  designated;  Sarvis  v.  Caster,  116  Iowa,  710, 
89  X.  W.  84,  holding  that  what  reasonable  time  for  acceptance  of  dedicated  street 
is,  depends  upon  circumstances  of  case. 

Cited  in  Price  v.  Stratton,  45  Fla.  543,  33  So.  644,  holding  where  owner  makes  a 
town  plat  of  land,  dividing  it  into  blocks  and  lots  with  streets  indicated,  his 


1  L.R.A.  856]  L.  R.  A.  CASES  AS  AUTHORITIES!  206 

sale  of  lots  with  reference  thereto  constitutes  a  dedication  to  the  public  of  such 
streets;  Oregon  City  v.  Oregon  &  C.  R.  Co.  44  Or.  176,  74  Pac.  924,  holding 
a  dedication  of  streets  and  public  places  shown  on  plat,  is  made  by  sale  of  lots 
and  deeds  of  conveyance  made  by  reference  to  such  plat;  Smith  v.  Beloit.  122 
Wis.  409,  100  N.  W.  877,  holding  an  incomplete  or  defective  statutory  dedication 
may  be  sustained  as  a  common  lawT  dedication  where  the  streets  or  roads  marked 
thereon  are  accepted  and  used  by  the  public;  Corsicana  v.  Anderson,  33  Tex.  Civ. 
App.  601,  78  S.  W.  261.  holding  where  one  sells  with  reference  to  a  map  on  which 
the  land  is  laid  off,  and  he  adopts  such  map  by  reference  thereto,  his  acts  will 
amount  to  a  dedication  of  the  streets;  Corsicana  v.  Zorn,  97  Tex.  322,  78  S. 
W.  !>24,  holding  the  deed  of  land  by  a  married  woman  as  to  dedication  of  streets 
in  a  plat  called  for  by  her  deed  is  to  be  given  the  same  effect  as  though  she 
were  sole. 

Cited  in  notes  (13  L.  R.  A.  252)  on  dedication  of  land  for  public  parks; 
'(9  L.  R.  A.  552)  on  dedication  by  platting  and  sale  of  lots;  (11  L.  R.  A.  57) 
on  acceptance  necessary  to  dedication;  (2  L.  R.  A.  59)  on  dedication  of  public 
streets  subject  to  use  by  railway;  (6  L.  R.  A.  261)  on  estate  created  by  dedi- 
cation; (14  L.R.A.  (N.S. )  1068.  on  effect  of  conveyance  of  lots  laid  down  on  plats, 
to  prevent  change  in  use  or  form;  (10  Am.  St.  Rep.  189)  on  dedication  to 
public  use. 

Distinguished  by  Collins  v.  Asheville  Land  Co.  128  N.  C.  569,  83  Am.  St.  Rep. 
720,  39  S.  E.  21    (dissenting  opinion),  majority  holding  purchaser  with  knowl- 
edge of  unrecorded  plat  bound  to  keep  open  streets  located  thereon. 
Dm;    as  to  opening-  platted  streets. 

Cited  in  Little  Rock  v.  Wright,  58  Ark.  150,  23  S.  W.  876,  holding  right 
to  open  not  lost  by  continued  use  for  pasture  by  grantor  after  dedication;  Gif- 
fen  v.  Olathe,  44  Kan.  351,  24  Pac.  470.  holding  private  use  of  dedicated  but 
unopened  alleys  presumptively  subject  to  public  right;  Russell  v.  Lincoln.  200 
111.  518.  65  N.  E.  1088,  holding  thirty  years'  undisturbed  possession  of  inclosed 
pasture  does  not  bar  municipality's  right  to  open  streets  located  thereon  by 
plat  known  of  at  time  of  purchase;  Louisiana  Ice  Mfg.  Co.  v.  New  Orleans,  43 
Xa.  Ann.  224,  9  So.  21,  holding  inclusion  of  platted  highway  in  description  of 
private  property  and  payment  of  taxes  thereon  for  prescriptive  period  does 
not  prevent  municipality  from  opening  same;  Skottowe  v.  Oregon  Short  Line 
&  U.  N.  R.  Co.  22  Or.  447,  16  L.  R.  A.  599,  30  Pac.  222,  holding  railway 
company  responsible  for  negligent  condition  of  elevated  way  over  platted 
street  unopened  by  municipality;  Red  Bluff  v.  Walbridge,  15  Cal.  App.  785.  110 
Pac.  77,  holding  that  town  does  jiot  lose  right  to  use  street  for  its  full  width  by 
failure  to  open  and  use  it  for  its  full  width;  Christian  v.  Eugene,  49  Or.  173, 
.•89  Pac.  419,  holding  the  dedicator  will  not  be  heard  to  question  correctness  of 
plat  where  he  has  platted  and  sold  lots  with  reference  to  it;  Bounty  v.  Seattle. 
46  Wash.  144,  89  Pac.  480,  holding  the  dedicator  cannot  after  plat  is  filed  and 
•streets  dedicated  to  the  public  and  accepted,  change  at  will,  the  plat  and  vacate 
.a  street  or  any  part  of  one;  Burroughs  v.  Cherokee,  134  Iowa,  433,  109  X.  W. 
'876,  holding  the  proprietor  upon  receiving  ample  consideration  for  his  property 
in  sale  of  lots,  has  no  ground  for  complaint  of  delays  in  improving  the  ground 
-dedicated;  Evans  v.  Blankenship,  4  Ariz.  316,  39  Pac.  812,  on  time  allowed  the 
•public  for  opening  and  improving  public  streets. 

iCited  in  footnote  to  Osage  City  v.  Larkins,  2  L.  R.  A.  56.  which  holds  both 
municipality  and  owner  negligent  and  liable  for  injuries  received  from  danger- 
ous machinery  placed  in  unopened  alley  by  owner. 


207  L.  R.  A.  CASES  AS  AUTHORITIES.  [1  L.R.A.  863 

1  L.  R.  A.  861,  HACKER'S  APPEAL,  121  Pa.  192,  15  Atl.  500. 
What  is  sufficient  tieal. 

Cited  in  Lorah  v.  Nissley,  156  Pa.  331,  27  Atl.  242,  holding  word  "seal" 
printed  on  note,  adopted  as  seal  by  person  signing  it;  District  of  Columbia  v. 
Camden  Iron  Works,  15  App.  D.  C.  217,  and  Jacksonville,  M.  P.  R.  &  Nav.  Co. 
v.  Hooper,  160  U.  S.  519,  40  L.  ed.  521,  16  Sup.  Ct.  Rep.  379,  holding  that 
whether  mark  is  a  seal  depends  upon  intention  of  person  executing  as  shown  by 
paper;  Excelsior  Mfg.  Co.  v.  Wheelock,  6  N.  M.  414,  28  Pac.  772,  holding  stat- 
ute declaring  scroll  sufficient  seal  applies  only  to  instruments  requiring  seal  at 
common  law;  Dart  v.  Hughes,  49  Colo.  469,  109  Pac.  952,  holding  "seal"  an  annual 
corporate  report  sufficient;  Com.  v.  Hoffstat.  58  Pittsb.  L.  J.  386,  holding 
that  impression  of  jury  commissioner's  key  in  wax  on  jury  wheel  is  a  sufficient 
seal;  Hewitt  v.  Hughes,  39  Pittsb.  L.  J.  X.  S.  346,  holding  (L.  S.)  sufficient  seal 
on  note;  Langley  v.  Owens,  52  Fla.  310,  42  So.  457,  11  A.  &  E.  Ann.  Cas.  247, 
holding  a  scrawl  or  scroll,  affixed  as  a  seal  to  signature  of  maker  of  a  note  is 
effectual  as  a  seal;  Wenchell  v.  Stevens,  30  Pa.  Super.  Ct.  533,  holding  it  a  ques- 
tion for  the  jury  whether  a  seal  on  a  note  was  adopted  by  maker. 

Cited  in  note    (11  L.  R.  A.  833)    on  effect  of  addition  of  seal  to  commercial 
paper. 
Execution  of  poorer. 

Distinguished  in  Reed  v.  Mellor,  122  Pa.  651,  16  Atl.  80,  holding  same 
strictness  not  required  in  execution  of  power  to  sell  as  of  power  to  appoint. 

1  L.  R.  A.  863,  PELLETIER  v.  COUTURE,  148  Mass.  269,   19  N.  E.  400. 
Title  to  partnership  property. 

Followed  in  Russell  v.  Cole,  167  Mass.  9,  57  Am.  St.  Rep.  432,  44  N.  E.  1057, 
holding  that  sheriff  under  attachment  against  one  partner  acquired  no  title  to 
property  bona  fide  acquired  by  firm  by  contract  in  fraud  of  creditors  of  such 
partner. 

Cited  in  Pratt  v.  McGuinness,  173  Mass.  172,  53  N.  E.  380,  holding  assignee 
of  individual  interest  of  partner  in  firm  property  is  not  a  tenant  in  common 
or  entitled  to  a  sale  thereof;  Conary  v.  Sawyer,  92  Me.  467,  69  Am.  St.  Rep. 
524,  43  Atl.  27,  holding  all  firm  property  available  to  creditors  of  insolvent 
partnership,  though  infant  member  repudiates  liability;  Gordon  v.  Miller,  111 
Mo.  App.  352,  85  S.  W.  943,  holding  the  contract  of  an  infant  member  of  a 
partnership  is  voidable  only  at  his  election  and  he  may  set  up  his  incapacity  as 
release  to  purchase  price  of  firm's  assets. 
Ratification  of  contract  by  infant. 

Cited   in   Ready   v.   Pinkham,    181    Mass.   352,   63   N.   E.   887,   holding   infant 
cannot  retain  and  convey  realty  after  becoming  of  age,  without  ratifying  con- 
tract to  pay  for  same. 
Insolvency  of  partnership. 

Distinguished  in  Clarke  v.  Stanwood,   166  Mass.  383,  34  L.  R.  A.  381,  44  N. 
E.  537,  holding  firm  debts  provable  against  estate  of  insolvent  partner  though 
firm  solvent. 
Review  of  proceedings  in  insolvency  court. 

Cited  in  Jaquith  v.  Fuller,  167  Mass.  128,  45  N.  E.  54,  holding  writ  of  pro- 
hibition from  supreme  court  unnecessary  in  view  of  full  power  in  equity  to 
.revise  or  vacate  proceedings  of  insolvency  court. 


L.  R.  A.  CASES  AS  AUTHORITIES. 


CASES  IN  2  L.  R  A. 


2  L.  R.  A.  33,  PEOPLE  v.  NORTH  RIVER  SUGAR  REF.  CO.  54  Hun,  355,  note, 
27  N.  Y.  S.  R.  282,  3  N.  Y.  Supp.  401. 

Affirmed   in   54   Hun,   354,   5   L.   R.   A.   386,   7   N.   Y.    Supp.   406,   which   was 
affirmed  in  121  N.  Y.  582,  9  L.  R.  A.  33,  18  Am.  St.  Rep.  843,  24  N.  E.  834. 
Combinations  affecting  competition. 

Cited  in  Rafferty  v.  Buffalo  City  Gas  Co.  37  App.  Div.  623,  56  N.  Y.  Supp. 
288,  upholding  purchase  of  stock  of  one  corporation  with  stock  of  another  to 
prevent  ruinous  competition ;  Queen  Ins.  Co.  v.  State,  86  Tex.  275,  22  L.  R.  A. 
492,  24  S.  W.  397,  holding  combination  to  fix  insurance  rates  not  ona  in  re- 
straint of  trade;  Milwaukee  Masons  &  Builders'  Asso.  v.  Niezerowski,  95  Wis. 
135,  37  L.  R.  A.  130,  60  Am.  St.  Rep.  97,  70  N.  W.  166,  holding 
combination  of  contractors  and  masons  to  suppress  competition  and  ad- 
vance prices  illegal;  Bailey  v.  Master  Plumbers'  Asso.  103  Tenn.  107,  46 
L.  R.  A.  563,  52  S.  W.  853,  holding  illegal,  master  plumbers'  association  to  pre- 
vent competition  and  restrict  purchase  of  supplies  and  materials;  Distilling 
&  Cattle  Feeding  Co.  v.  People,  156  111.  487,  47  Am.  St.  Rep.  200,  41  N.  E.  188, 
holding  combination  to  stifle  competition  and  control  production  and  prices  il- 
legal; Brown  v.  Jacobs'  Pharmacy  Co.  115  Ga.  443,  57  L.  R.  A.  554,  90  Am.  St. 
Rep.  126,  41  S.  E.  553,  holding  combination  to  compel  outsider  to  sell  goods 
at  prices  fixed  by  it  void ;  United  States  v.  Addyston  Pipe  &  Steel  Co.  46  L.  R. 
A.  136,  29  C.  C.  A.  160,  54  U.  S.  App.  723,  85  Fed.  291,  holding  contract  between 
iron-pipe  manufacturers  for  purpose  of  restraining  competition  and  maintaining 
prices  void;  Chicago,  W.  &  V.  Coal  Co.  v.  People,  214  111.  442,  73  N.  E.  770, 
Affirming  114  111.  App.  116,  holding  a  combination  between  independent  coal 
producers  to  prevent  competition  is  unlawful  and  amounts  to  a  conspiracy; 
Cleveland,  C.  C.  &  I.  R.  Co.  v.  Closser,  126  Ind.  362,  9  L.R.A.  761,  3  Inters. 
Com.  Rep.  387,  22  Am.  St.  Rep.  593,  26  N.  E.  159,  holding  an  arrangement  en- 
tered into  between  rival  railroad  companies  fixing  freight  rates  is  prima  facie 
illegal;  State  v.  Duluth  Bd.  of  Trade,  107  Minn.  537,  23  L.R,A.(N.S.)  1276,  121 
N.  W.  395,  holding  a  rule  of  a  board  of  trade  providing  that  all  members  shall 
charge  a  uniform  and  determined  rate  of  commission  for  selling  grain  for  non 
members  and  a  penalty  for  a  violation  thereof,  is  not  in  violation  of  ante- 
trust  statute;  United  States  v.  American  Tobacco  Co.  164  Fed.  721,  holding  the 
consolidation  into  one  corporation  of  other  corporations  engaged  in  different 
branches  of  the  tobacco  industry  which  resulted  in  the  practical  elimination  of 
competition  was  a  combination  in  restraint  of  interstate  commerce;  Sanford 
v.  People,  121  111.  App.  645,  on  it  not  being  necessary  that  a  combination  in 
restraint  of  trade  create  a  monopoly  in  order  to  be  unlawful;  Territory  v.  Long 
Eell  Lumber  Co.  22  Okla.  905,  99  Pac.  911,  on  right  of  state  to  enact  legis- 
L.R.A.  Au.  Vol.  I.— 14.  209 


2  L.R.A.  33]  L.  R.  A.  CASES  AS  AUTHORITIES.  210 

lation  to  prevent  the  creations  of  monoplies,  or  combinations  in  restraint  of 
trade;  Pocahontas  Coke  Co.  v.  Powhatan  Coal  &  Coke  Co.  GO  W.  Va.  529,  10 
L.R.A.  (X.S.)  284,  116  Am.  St.  Rep.  901,  56  S.  E.  264,  9  A.  &  E.  Ann.  Cas.  667, 
on  the  determination  of  whether  a  contract  or  combination  is  in  restraint  of 
trade;  State  v.  Central  Lumber  Co.  24  S.  D.  165,  —  L.R.A.  (X.S.)  — ,  123  X.  W. 
504,  on  forfeiture  of  corporate  franchise  for  unfair  competition. 

Cited  in  footnotes  to  Texas  Standard  Cotton  Oil  Co.  v.  Adoue,  15  L.  R.  A. 
598,  which  holds  combination  to  fix  prices  of  cotton  seed  and  seed  cotton  void; 
Van  Horn  v.  Van  Horn,  10  L.  R.  A.  184,  which  holds  combination  to  drive 
trader  out  of  business  actionable;  More  v.  Bennett,  15  L.  R.  A.  361,  which 
holds  association  of  stenographers  to  control  prices  for  work  illegal  combina- 
tion; State  v.  Phipps,  18  L.  R.  A.  658,  which  holds  combination  by  foreign  com- 
panies to  increase  rates  of  insurance  unlawful;  Slaughter  v.  Thacker  Coal  &  Coke 
Co.  65  L.R.A.  342,  which  holds  void  contract  by  different  coal  mining  companies 
giving  exclusive  right  to  sell  entire  output  at  uniform  prices  to  corporation 
organized  as  their  regular  sales  agent. 

Cited  in  note   (12  L.  R.  A.  196)   on  conspiracy. 

Distinguished  in  United  States  v.  E.  C.  Knight  Co.  60  Fed.  310,  holding  a 
combination  whose  object  was  to  enable  a  single  company  to  control  the  sugar 
industry  by  buying  up  competing  concerns  in  United  States  was  not  in  violation 
of  act  declaring  "every  contract,  combination  in  the  form  of  a  trust  or  other- 
wise or  conspiracy  in  restraint  of  trade  or  commerce  among  states  or  with 
foreign  nations,"  illegal. 
Agreements  affecting  trade. 

Cited  in  Klingel's  Pharmacy  v.  Sharp  &  Dohme,  104  Md.  231,  7  L.R.A.  (X.S.) 
981,  118  Am.  St.  Rep.  399,  64  Atl.  1029,  9  A.  &  E.  Ann.  Cas.  1184;  holding  a 
combination  between  retail  and  wholesale  druggists  of  a  city  to  maintain 
a  maximum  schedule  of  prices  is  illegal  where  it  refuses  to  sell  to  parties  not 
joining  the  combination  and  boycotts  dealers  that  do  sell  to  such  persons; 
Standard  Oil  Co.  v.  State,  117  Tenn.  660,  10  L.R.A.(X.S.)  1026,  100  S.  W.  705, 
holding  an  agreement  by  defendant  company  to  give  another  a  quantity  of  coal 
oil  on  his  countermanding  an  order  given  to  a  competitor  was  a  violation  of 
the  state  ante-trust  law. 

Cited  in  footnotes  to  Chaplin  v.  Brown,  12  L.  R.  A.  428,  which  holds  grocer's 
agreement  not  to  buy  butter  from  makers  for  two  years  if  firm  opens  butter 
store,  void;  Gloucester  Isinglass  &  Glue  Co.  v.  Russia  Cement  Co.  12  L.  R.  A. 
563,  which  holds  agreement  to  prevent  competition  between  corporations  in 
manufacture  of  glue  under  patent  valid ;  State  ex  rel.  Watson  v.  Standard  Oil 
Co.  15  L.  R.  A.  145,  which  holds  agreement  for  transfer  of  corporate  stock 
to  trustees  to  vote  and  receive  dividends  void;  Clark  v.  Xeedham,  51  L.  R.  A. 
785,  which  holds  void  lease  of  manufacturing  machinery,  with  agreement  against 
lessor's  engaging  in  business  for  five  years:  Cummings  v.  Union  Blue  Stone 
Co.  52  L.  R.  A.  262,  which  holds  void  agreement  by  persons  controlling  90 
per  cent  of  sale  of  blue  stone  to  sell  through  common  agent,  and  maintain  agreed 
prices. 

Cited  in  notes  (8  L.  R.  A.  498,  500)  on  contracts  against  public  policy;  (11 
L.  R.  A.  437,  438)  on  contracts  to  regulate  competition  in  trade;  (11  L.  R.  A. 
504)  on  contracts  in  general  restraint  of  trade;  (4  L.  R.  A.  157)  on  contracts 
in  partial  restraint  of  trade;  (33  L.  ed.  U.  S.  72)  on  validity  of  contracts  in 
restraint  of  trade. 
Monopolies. 

Cited  in  Boon  v.  Utica.  5  Misc.  392,  26  X.  Y.  Supp.  932.  or  when  a  combina- 
tion in  restraint  of  competition  creates  a  monopoly;  Lamed  v.  Syracuse,  17  App. 


'211  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  44 

Div.  -27.  44  X.  Y.  Supp.  857,  holding  a  contract  for  paving  brick  calling  for  the 
work  to  be  done  with  brick  of  a  particular  company  was  void  as  stifling  com- 
.petition. 

Cited  in  footnote  to  Stockton  v.  Central  R.  Co.  17  L  R.  A.  97,  which  holds 
lease  of  railroad  franchises  and  roads  tends  to  monopoly. 

Cited  in  notes   (6  L.  R.  A.  457)   on  void  contracts  creating  monopolies;    (9  L. 
II.   A.   38)    on   corporations   and   monopolies;    (13   L.   R.   A.   771)    on   nature   of 
monopolies;    (12  L.  R.  A.  754)   on  restraining  monopolies  as  public  nuisances. 
Km  MM   of   illegal   combinations   or   agreement*. 

Cited  in  footnote  to  Pittsburgh  Carbon  Co.  v.  McMillin,  7  L.  R.  A.  46    which 
holds  party  to  illegal  trust  combination  not  entitled  to  proceeds,  as  against  re 
ceiver  of  trust  assets. 
Hfiecessary  articles  of  commerce. 

( 'hod  in  Queen  Ins.  Co.  v.  State,  86  Tex.  270,  22  L.  R.  A.  494,  24  S.  W.  397, 
liolding  insurance  not  a  business  of  commerce,  in  which  public  has  any  right. 
Corporation  as  a   le.unl    entity. 

Cited   in   United   States  v.   Milwaukee   Refrigator   Transit  Co.   142   Fed.   255, 
or  when  corporation  will  be  regarded  as  a  legal  entity. 
Rights   of   stockholders   in    forfeitable   corporations. 

Cited  in  Havemeyer  v.  Superior  Ct.  84  Cal.  379,  10  L.R.A.  627,  18  Am.  St. 
Rep.  192,  24  Pac.  121,  on  how  forfeiture  of  corporate  charter  affects  rights  of 
stockholders  in  corporate  property. 

2  L.  R.  A.  43,  JEXXINGS'S  APPEAL,  2  Monaghan  (Pa.)   184,  16  Atl.  19. 

Limited    partnerships. 

Cited  in  Spencer  Optical  Mfg.  Co.  v.  Johnson,  53  S.  C.  536,  31  S.  E.  392,  hold- 
ing members  of  firm,  not  strictly  complying  with  statute  as  to  limited  part- 
nerships, liable  as  general  partners. 

Cited  in  footnotes  to  Vanhorne  v.  Corcoran.  4  L.  R.  A.  386,  holding  strict 
compliance  with  statute  necessary  to  limit  liability;  State.  Tide  Water  Pipe  Co., 
Prosecutor,  v.  State  Board,  27  L.  R.  A.  684,  holding  limited  partnership  taxable 
as  corporation;  Edwards  v.  Warren  Linoline  &  Gasoline  Works,  38  L.  R.  A. 
791,  which  holds  partnership  association  organized  under  laws  of  Pennsylvania 
regarded  as  partnership,  instead  of  corporation,  in  Massachusetts. 

Cited  in  note   (8  L.  R.  A.  712)    on  limited  partnerships. 

2   L.R.A.   44,   BALTIMORE   &   0.   EMPLOYES'   RELIEF   ASSO.   v.   POST,    122 

Pa.    579.    15    Atl.    885. 
Admissibility  of  declarations  of  agents. 

Cited  in  notes   (36  Am.  St.  Rep.  493;   16  Am.  St.  Rep.  199),  on  admissibility 
of   declarations   of   agent   to   prove   agency;     (131    Am.    St.   Rep.    326),   on    ad- 
mission of  declarations  and  acts  of  officers  and  agents  of  carriers. 
Presnmption    as    to    agent's    anthority. 

Cited  in  Smith  v.  Crum  Lynne  Iron  &  Steel  Co.  208  Pa.  466,  57  Atl.  953.  hold- 
ing authority  of  superintendent  to  bind  corporation  by  contract  to  give  in- 
jured employee  life  employment  will  not  be  presumed;  Langenheim  v.  Anshutz- 
Bradberry  Co.  2  Pa.  Super.  Ct.  291,  38  W.  X.  C.  508.  holding  burden  of  show- 
ing extent  of  agent's  authority  is  on  party  seeking  to  charge  principal:  Singer 
Mfg.  Co.  v.  Christian,  211  Pa.  541,  60  Atl.  1087,  holding  it  question  for  jury 
whether  sewing  machine  agent  had  authority  to  agree  to  give  purchaser  suffi- 
cient work  to  pay  for  machines:  American  Car  &  Foundry  Co.  v.  Alexandria 
Water  Co.  221  Pa.  537,  128  Am.  St.  Rep.  749,  70  Atl.  867,  15  A.  &  E.  Ann. 


2  L.R.A.  44 [  L.  R.  A.  CASES  AS  AUTHORITIES.  212 

Cas.   64],  holding  that  an  agent  has  no  implied  authority  to  accept  a  note  in 
payment  of  goods  sold;   Perkiomen  R.  Co.  v.  Bromer,  21  Montg.  C.  L.  Rep.  206, 
31   Pa.   Co.   Ct.   588,   holding  that  principal   is   bound  by   declarations  of  agent, 
made  in  course  of  agent's  employment. 
Contracts   of   railway    relief  associations. 

Cited  in  Barden  v.  Atlantic  Coast  Line  R.  Co.  152  N.  C.  332,  67  S.  E.  971 
(dissenting  opinion),  on  validity  of  relief  association  contracts  between  em- 
ployer and  employee. 

Cited  in  footnotes  to  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Moore,  44  L.  R.  A. 
638,  which  sustains  contract  allowing  railroad  employee  option  between  action 
for  damages  or  claim  on  relief  fund;  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  Cox,  35 
L.  R.  A.  507,  which  sustains  contract  that  accepting  relief  from  railroad  relief 
association  shall  release  employer  from  liability;  Oyster  v.  Burlington  Relief 
Department,  59  L.  R.  A.  292,  which  denies  right  to  recover  on  certificate  of 
railroad  relief  department,  after  recovering  full  statutory  penalty  for  employee's 
death. 
Benefits  recoverable. 

Cited  in  footnote  to  Robinson  v.  Exempt  Fire  Co.  24  L.  R.  A.  715,  which  holds- 
recovery  limited  to  benefits  accrued  at  commencement  of  suit. 
Injuries  covered  by  accident  insurance. 

Cited  in  footnote  to  Lord  v.  American  Mut.  Acci.  Asso.  26  L.  R.  A.  742,  which 
holds  question  for  jury,  whether  entire  loss  of  hand,  within  meaning  of  accident 
policy,   caused   by  injury   without   amputation   above   wrist. 
\Vhat    constitutes    total    disability. 

Limited  in  Wall  v.  Continental  Casualty  Co.  Ill  Mo.  App.  525,  86  S.  W. 
491,  holding  that  in  considering  what  constitutes  a  total  disability  reference- 
must  be  had  to  the  lot  in  life  of  the  insured  his  vocation  and  capacity. 

2  L.  R.  A.  48,  GREEN  v.  RICK,  121  Pa.  130,  6  Am.  St.  Rep.  670,  15  Atl.  497. 
Effect  of  acts  of  person  jointly  interested. 

Cited  in  Hall's  Estate,  10  North.  Co.  Rep.  104.  on  admissibility  of  acts  or 
declarations  of  one  legatee,  in  absence  of  another,  as  to  undue  influence. 

Cited  in  note   (65  Am.  St.  Rep.  684)    on  relation  of  agency  between   persons- 
jointly  liable. 
Notice  of  pendency. 

Cited  in  Hillside  Coal  &  I.  Co.  v.  Heermans,  191  Pa.  119,  43  Atl.  76,  holding 
Us  pendens  notice  to  one  purchasing  fourteen  years  after  commencement  of  ac- 
tion; Hovey  v.  Elliott,  118  N.  Y.  134,  23  N.  E.  475,  holding  purchaser  of  bonds 
with  knowledge  of  pending  litigation  bound  by  result;  Mansur  &  T.  Implement 
Co.  v.  Beer,  19  Tex.  Civ.  App.  313,  45  S.  W.  972;  holding  action  to  recover 
vendor's  lien  notes  does  not  create  notice  by  Us  pendens  to  subsequent  lienor; 
Noyes  v.  Crawford,  118  Iowa,  18,  96  Am.  St.  Rep.  363,  91  N.  W.  799,  holding 
Us  pendens  no  notice  to  bona  fide  purchaser  from  one  not  a  party,  holding  by 
title  antedating  commencement  of  action. 

Cited  in  footnote  to  Di  Nola  v.  Allison,  65  L.R.A.  419,  which  holds  title  of 
stranger  purchasing  after  taking  of  appeal  from  judgment  from  one  who  had 
purchased  land  at  his  own  foreclosure  sale  subject  to  defeat  by  reversal  of  the 
judgment. 

Cited  in  notes  (2  L.R.A.  615)  on  divorce;  rule  of  Us  pendens ;  (56  Am.  St.  Rep. 
869  870)  on  law  of  lis  pendens 


213  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  50 

2  L.R.A.  52,  HAWS  v.  ST.  PAUL  F.  &  M.  INS.  CO.  130  Pa.  113,  15  Atl.  915, 

18  Atl.  621. 
Effect  on  policy  of  removal  of  property. 

Cited  in  British-America  Assur.  Co.  v.  Miller,  91  Tex.  420,  39  L.  R.  A.  547, 
G6  Am.  St.  Rep.  901,  44  S.  W.  60,  holding  insurance  on  property  located  in  speci- 
fied place,  not  covering  the  property  when  in  another  place;  Jacobson  v. 
Liverpool,  L.  &  G.  Ins.  Co.  135  111.  App.  125,  holding  where  policy  contains 
words  ''contained  in"  that  a  recovery  for -goods  lost  cannot  be  had  unless 
goods  are  in  place  discribed  in  policy;  Thorp  v.  ^Etna  Ins.  Co.  75  N.  H.  252,  72 
Atl.  690,  holding  that  policy  insuring  horses  contained  in  barn  does  not  cover 
loss  of  horse  struck  by  lightning  in  pasture. 

Cited  in  notes    (26  L.R.A.  240)   on  location  of  movable  property  as  affecting 
fire  insurance  thereon;    (14  Eng.  Rul.  Cas.  21)  on  effect,  in  construing  policy,  of 
removal  of  property. 
L.ON*  by  lightning-. 

Cited  in  note   (26  L.  R.  A.  269)    on  insurance  against  loss  by  lightning. 

2  L.  R.  A.  54,  SCHNEIDER  v.  DETROIT,  72  Mich.  240,  40  N.  W.  329. 
Appropriating  private  property  for  public  use  by  change  of  street  level. 

Cited  in  Vanderlip  v.  Grand  Rapids,  73  Mich.  536,  3  L.  R.  A.  253,  16  Am.  St 
Rep.  597,  41  N.  W.  677,  holding  grading  by  raising  30-foot  embankment  in  front 
of  lot,  taking  of  private  property;  Harper  v.  Detroit,  110  Mich.  429,  68  N.  W. 
265,  holding  gross  damages  should  be  awarded  to  abutting  owner  for  carrying 
street  over  railroad;  Phelps  v.  Detroit,  120  Mich.  448,  79  N.  W.  640,  holding 
city  liable  for  damages  to  abutting  owner  for  unauthorized  construction  of  bridge 
across  railroad;  Atty.  Gen.  ex  rel.  Brotherhood  v.  Detroit,  148  Mich.  108,  111 
N.  W.  860,  holding  authority  to  grade,  etc.,  and  otherwise  improve  streets 
does  not  authorize  the  laying  of  street  railway  tracks  for  purpose  of  leasing 
them  to  private  persons;  Dean  v.  Ann  Arbor  Min.  Co.  137  Mich.  467,  100  N. 
W.  773,  holding  that  power  of  a  city  to  designate  grade  of  railroads  coming 
into  the  city  does  not  give  city  power  in  effect  to  vacate  a  street  in  favor  of  a 
railroad  thereby  cutting  off  an  abutting  owner's  access  to  his  property  without 
providing  him  compensation;  Detroit  v.  Detroit  United  R.  Co.  156  Mich.  113, 

120  N.  W.  600,  holding  city  liable  for  damages  caused  by  change  of  grade  of 
a  street  for  purpose  of  an  elevated  railroad;   Detroit  v.  Snyder,  156  Mich.  512, 

121  N.  W.  258,  holding  grades  for  railroad  crossings  not  within  the  common  law 
rule  which  gives  no  damages  because  of  a  change  of  a  street  grade;   Detroit  v. 
Grand  Trunk  R.  Co.  163  Mich.  234,  128  N.  W.  250,  holding  that  consequential 
injuries  from   authorized   separation   of  grades   of   street  and   railroads   do   not 
constitute   taking  of  private   property. 

Powers,    generally,    of    municipal    corporations. 

Cited  in  notes  (7  L.  R.  A.  760)  on  power  of  municipal  corporations  to  borrow 
money;  (11  L.R.A.  124)  on  power  of  taxation;  (70  L.R.A.  584)  on  authority 
of  municipalities  to  improve  streets  and  bridges. 

2  L.  R.  A.  56,  OSAGE  CITY  v.  LARKINS,  40  Kan.  206,  10  Am.  St.  Rep.  186, 

19  Pac.  658. 
Dedication  of  streets  and  alleys  to  pnblie  use. 

Cited  in  Sowadzki  v.  Salt  Lake  County,  36  Utah,  134,  104  Pac.  Ill,  holding 
that  platting  of  streets  by  landowner  constitutes  dedication  thereof,  which  is 
complete  without  formal  acceptance  by  public  authorities. 

Cited  in  notes   (9  L.  R.  A.  551)   on  dedication  cf  land  to  public  use  a  matter 


2  L.R.A.  56]  L.  R.  A.  CASES  AS  AUTHORITIES.  2U 

of  intention;  (11  L.  R.  A.  58)  on  effect  of  dedication  for  highway;  (8  L.  R.  A_ 
829)  on  use  of  streets  in  cities  and  towns;  (12  Am.  St.  Rep.  156)  on  dedi- 
cation to  public  use;  (129  Am.  St.  Rep.  577)  on  what  constitutes  dedication. 
to,  and  acceptance  of,  a  public  street. 

Distinguished    in    Burroughs    v.    Cherokee,    134    Iowa,    432,    109    X.    W.    876,. 
holding  that  a  municipality  must  by  some  act  accept  a  dedication  of  a  street 
or  alley  before  it  is  charged  with  the  duty  of  keeping  street  safe. 
Nature  of  public  easement  in  alley. 

Cited  in  Indianapolis  v.  Miller,  168  Ind.  287,  8  L.R.A.(N.S.)   823,  80  X.  E.  626,. 
denying  power  of  city  to  forbid  the  opening  of  theater  entrances  and  exits  on 
alleys. 
Misuse  of  land  dedicated  to  public  as  an  abandonment. 

Cited  in  McAlpine  v.  Chicago  G.  W.  R.  Co.  68  Kan.  216,  64  L.R.A.  89,  75  Pac^ 
73,  1  Ann.  Cas.  452,  holding  land  dedicated  to  public  as  a  levee  does  not  revert 
because  used  for  railroad  tracks  and  other  unauthorized  purposes;  McAlpine  v_ 
Chicago  G.  W.  R.  Co.  68  Kan.  216,  64  L.R.A.  895,  75  Pac.  73,  1  Ann.  Ca<.  452, 
holding  a  strip  of  land  not  abandoned  by  public  because  railroads  have  been  per- 
mitted to  lay  tracks  and  build  depots  upon  it. 
Liability  of  city  for  defects  in  streets. 

Cited  in  Fletcher  v.  Ellsworth,  53  Kan.  763,  37  Pac.  115,  holding  city  not  main- 
taining alley  in  safe  condition  liable. 

Cited   in   notes    (103   Am.    St.   Rep.   294)    on   municipal    liability   to    persons 
injured  by  defects   in,  or  want  of  repair  of,  streets;    (30  Am.   St.  Rep.  386,   I 
Eng.   RuL   Cas.   622,   19   L.R.A.  (N.S.)    520:    20  L.R.A.(N.S.)    574)    on    liability 
of  municipality  for  defects  or  obstructions  in  streets. 
Temporary  obstruction   of  liig'liway  as  nuisance. 

Cited  in  Richmond  v.  Smith,  101  Va.  168,  43  S.  E.  345,  holding  large,  tempo- 
rary platform  erected  in  street  for  carnival  performances  a  nuisance  per  se. 
Liability  for  distinct,  concurrent,  negligent  acts. 

Cited  in  Brown  v.  Coxe  Bros.  &  Co.  75  Fed.  691,  holding  distinct  acts  of  neg- 
ligence, concurring  to  produce  injury,  create  joint  and  several  liability:  Fish- 
burn  v.  Burlington  &  X.  W.  R.  Co.  127  Iowa,  490,  103  X.  W.  481,  holding  de- 
fendant not  relieved  from  negligence  in  erecting  a  fence  from  mere  fact  that 
after  it  is  blown  down  it  is  replaced  to  its  original  position  by  another  party; 
Walton  v.  Miller,  109  Va,  214,  132  Am.  St.  Rep.  908,  63  S.  E.  458;  holding 
where  the  negligence  of  two  parties  is  the  efficient  and  proximate  cause  of  injury 
both  are  liable  as  joint  tort  feasors  though  there  was  no  common  duty  design, 
or  concert  of  action  between  them. 

Cited  in  note    (16  Am.  St.  Rep.  253),  on  negligence  of  two  or  more  persons 
resulting   in   injury   to   third   person. 
Liability  for  maintaining;  dangerous  appliances  attractive  to   children. 

Cited  in  Kinchlow  v.  Midland  Elevator  Co.  57  Kan.  378,  46  Pac.  703.  holding 
negligence  of  owner  in  leaving  unguarded  barrel  of  hot  water  on  premises  ques- 
tion for  jury;  Ryan  v.  Towar,  128  Mich.  483,  55  L.  R.  A.  317,  92  Am.  St.  Rep. 
481,  87  N.  W.  644  (dissenting  opinion),  majority  holding  landowner  net  liable 
for  maintaining  dangerous  machine  in  building  accessible  to  children. 

Cited  in  footnotes  to  Kopplekom  v.  Colorado  Cement  Pipe  Co.  54  L.  R.  A. 
284,  which  holds  owner  of  uninclosed  city  lot  liable  for  injury  to  young  child 
by  toppling  over  of  large  cement  pipe  used  by  children  as  plaything;  Rome  v. 
Cheney,  55  L.  R.  A.  221,  which  denies  city's  liability  for  drowning  of  child  in 
necessary  sewer  4  feet  wide  and  2  feet  deep;  Missouri,  K.  &  T.  R.  Co.  v.  Edwards, 


216  L.  R.  A.  CASES  AS  AUTHORITIES.  £2  L.R.A.  59 

32  L.  R.  A.  825,  holding  railroad  company  not  liable  for  injuries  to  child  climb- 
ing upon  ties  piled  in  yard  inclosed  by  fence  and  tracks. 

Cited   in  note    (6   L.R.A.(X.S.)    907)    on  duty  towards  children   with   respect 
to  obstructions  or  defects  in  street. 

2  L.  R.  A.  59,  OTTAWA,  0.  C.  &  C.  G.  R.  CO.  v.  LARSEN,  40  Kan.  301,  19  Pac, 
661. 


to  use  public  streets  by  railroads. 

Cited  in  McCann  v.  Johnson  County  Teleph.  Co.  69  Kan.  220,  66  L.R.A.  179, 
76  Pac.  870,  2  A.  &  E.  Ann.  Cas.  156  (dissenting  opinion),  on  what  constituted 
an  additional  servitude  for  which  abutting  owner  is  entitled  to  compensation; 
L;i  IFarpe  v.  Elm  Twp.  Gas,  Light,  Fuel  &  Power  Co.  69  Kan.  105,  76  Pac.  448, 
holding  that  a  city  could  grant  right  to  lay  gas  pipes  in  streets  without  com- 
pen.sation  to  abutting  owner  or  city;  State  ex  rel.  Dawson  v.  Parsons  Street 
R.  Co.  81  Kan.  432,  28  L.R.A.(X.S.)  1086,  105  Pac.  704,  holding  that  an 
abutting  owner  can  not  prevent  construction  of  a  subway  authorized  by  proper 
public  officials  his  only  remedy  is  consequential  damages. 

Cited  in  footnotes  to  Montgomery  v.  Santa  Ana  &  W.  R.  Co.  25  L.  R.  A.  654, 
which  holds  railroad  on  street  not  additional  burden;  Chicago  G.  W.  R.  Co.  v. 
l-'irst  Methodist  Episcopal  Church,  50  L.  R.  A.  488,  which  holds  water  tank  in 
street,  and  station,  at  which  bells  constantly  rung  and  whistles  blown  within 
a  few  rods  of  church,  a  nuisance. 

Cited  in  notes  (17  L.  R.  A.  477)  on  what  use  of  a  street  or  highway  consti- 
tutes an  additional  burden;  (10  L.  R.  A.  772)  on  duty  of  railroad  to  keep  its 
right  of  way  in  safe  condition;  (1  L.R.A.  (X.S.  )  90)  on  right  of  railroad  to 
use  streets;  (36  L.R.A.  (N.S.)  694,  766)  on  abutter's  right  to  compensation  for 
railroads  in  streets;  (11  Am.  St.  Rep.  682)  on  liability  of  railroad  to  abutting 
lot  owners. 
Liability  to  abutting:  lot  owners  for  obstruction  of  street. 

Cited  in  Wichita  &  C.  R.  Co.  v.  Smith,  45  Kan.  269,  25  Pac.  623,  holding  abut- 
ting owner  cannot  recover  unless  virtually  deprived  of  access  to  his  property; 
Inter-State  Consol.  Rapid  Transit  R.  Co.  v.  Early,  46  Kan.  201,  26  Pac.  422, 
holding  railway  company  not  liable  to  abutting  owner  for  authorized  change  of 
street  grade;  Ottawa,  0.  C.  &  C.  G.  R.  Co.  v.  Peterson,  51  Kan.  607,  33  Pac.  606, 
and  Chicago,  K.  &  W.  R.  Co.  v.  Union  Investment  Co.  51  Kan.  602,  33  Pac.  378, 
holding  railroad  company  not  liable  for  obstructing  street  where  vehicle  space 
and  access  to  abutting  land  is  left;  Kansas,  N.  &  13.  R.  Co.  v.  Cuykendall,  42 
Kan.  236,  16  Am.  St.  Rep.  479,  21  Pac.  1051;  Leavenworth  v.  Douglass,  59  Kan. 
419,  53  Pac.  123,  holding  railroad  company  not  liable  for  obstructing  street  if 
lot  owner's  access  is  not  unreasonably  abridged;  Ft.  Scott,  W.  &  W.  R.  Co.  v. 
Fox,  42  Kan.  494,  22  Pac.  583,  holding  railroad  company  liable  for  complete 
obstruction,  although  lot  accessible  from  another  street. 

Cited  in  notes   (9  L.  R.  A.  101)   on  use  of  streets  in  municipalties;    (1  L.  R. 
A.  856)   on  dedication  of  land  to  street  uses  by  laying  out  and  platting. 
Special  injury  to  abutting:  owner. 

Cited  in  Garrett  v.  Lake  Roland  Elev.  R.  Co.  79  Md.  282,  24  L.  R.  A.  398, 
29  Atl.  830,  holding  authorized  erection  of  stone  abutment  in  street  no  taking 
of  private  property;  McKay  v.  Enid,  26  Okla.  280,  30  L.R.A.  (X.S.)  1024,  109 
Pac.  520,  holding  that  abutter  does  not  sustain  special  injury  from  obstruc- 
tion of  street  by  railway,  unless  such  street  is  his  only  means  of  access. 
Consequential  damages. 

Followed  without  discussion  in  Ottawa,  0.  C.  &  C.  G.  R.  Co.  v.  Peterson,  40 


2  L.R.A.  59]  L.  R.  A.  CASES  AS  AUTHORITIES.  216 

Kan.  310,  19  Pac.  660;  Ottawa,  0.  C.  &  C.  G.  R.  Co.  v.  Lindall,  40  Kan.  310,  19 
Pac.  666;  Ottawa,  0.  C.  &  C.  G.  R.  Co.  v.  Hanson,  40  Kan.  310,  19  Pac.  666. 

Cited  in  Central  Branch  Union  P.  R.  Co.  v.  Andrews,  41  Kan.  379,  21  Pac. 
276,  holding  measure  of  damages  difference  in  value  of  land  before  and  after 
street  obstruction. 

Cited  in  note  (13  Am.  St.  Rep.  242)  on  consequential  damages  for  property 
taken  under  power  of  eminent  domain. 

Distinguished  in  Leavenworth,  N.  &  S.  R.  Co.  v.  Curtan,  51  Kan.  439,  33  Pac. 
297,  holding  lot  owner  entitled  to  damages  where  railroad  cuts  off  access  to  his 
lot. 
Dedication   reserving   franchises  in   streets. 

Distinguished  in  Jones  v.  Carter,  45  Tex.  Civ.  App.  455,  101  S.  W.  514,  hold- 
ing a  provision  in  a  dedication  deed  reserving  to  dedicators  the  exclusive  right  to 
construct,  operate  and  maintain  public  utilities  in  the  town  free  from  control  to 
be  null  and  void. 

2  L.  R.  A.  64,  HARTFORD  F.  INS.  CO.  v.  HAAS,  87  Ky.  531,  9  S.  W.  720. 
Reformation  of  insurance  policy. 

Cited  in  Taylor  v.  Glens  Falls  Ins.  Co.  44  Fla.  284,  32  So.  887,  holding  that 
no  recovery  could  be  had  at  law  on  an  insurance  policy  made  payable  to  party 
•who  is  dead  at  time  of  execution,  without  a  reformation  thereof  in  equity. 

Cited  in  notes    (5   L.R.A.   712)    on   reformation   of   policy   of   insurance;     (28 
L.R.A.  (N.S.)     835,    836)    on    reformation    of    insurance    policy    for    mistake    of 
law  as  to  its  effect;    (37  L.  ed.   (U.  S.)  457)  on  reformation  of  insurance  policies 
in   equity. 
TVature  of  proceeds  of  insurance  policy. 

Cited  in  Spalding  v.  Miller,   103  Ky.  414,  45  S.  W.  462,  holding  proceeds  of 
policy  do  not  take  place  of  property,  but  indemnify  for  loss. 
Insurance  company  bound  by  agent's  act. 

Cited  in  Wright  v.  Northwestern  Mut.  L.  Ins.  Co.  91  Ky.  213,  15  S.  W.  242, 
holding  erroneous  description  of  risk  by  company's  agent  in  application  does 
not  invalidate  policy;  Frost  v.  North  British  &  M.  Ins.  Co.  77  Vt.  412,  60  Atl. 
803,  holding  a  London  insurance  company  bound  by  acts  of  the  managers  of 
general  office  of  the  United  States  Branch,  pertaining  to  policy. 

Cited  in  notes    (13  Am.  St.  Rep.  915)    on  insurance  agent  as  principal;    (14 
Am.    St.    Rep.    493)    on   misrepresentations   of   insurance    agent    as    binding    on 
company;    (107   Am.   St.  Rep.   117)    on  power  of   agent  to  waive   provisions  of 
non-waiver  or  written  waiver  of  conditions  and  forfeitures  in  policies. 
——  Stipulations  in  policy. 

Distinguished  in  Lauze  v.  New  York  L.  Ins.  Co.  74  N.  H.  338,  68  Atl.  31,  hold- 
ing in  absence  of  misrepresentation,  fraud  or  imposition  that,  assured  is  bound 
by   limitations    of   policy. 
Effect  of  knowledge  of  insurer's  agent. 

Cited  in  Wilson  v.  Germania  F.  Ins.  Co.  140  Ky.  646,  131  N.  W.  785,  hold- 
ing that  insured  can  recover  to  extent  of  her  insurable  interest,  where  agent 
delivered  policy  to  her  \vith  knowledge  of  her  want  of  title. 

Cited  in  notes   ( 16  L.R.A.  34,  35 )    on  effect  of  knowledge,  by  insurer's  agent, 
of  falsity  of  statements   in  application;    (107   Am.   St.  Rep.   109)    on  imputing 
.agent's  knowledge  to  insured. 
Conditions  in  insurance  policy. 

Cited  in  Parsons  v.  Lane  (Re  Millers'  &  Mfrs.  Ins.  Co.)  97  Minn.  107,  4 
L.R.A.  (N.S.)  236,  106  N.  W.  485,  7  A.  &  E.  Ann.  Cas.  1144,  holding  that  an 


217  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  67 

insurance  company  cannot  take  advantage  of  a  condition  in  its  policy  to 
avoid  payment  of  a  loss  when  the  facts  are  known  to  its  agent  when  it  issued 
the  policy. 

Cited  in  note   (11  L.  R.  A.  345)   on  conditions  in  insurance  policy. 
"VViilow's  insnrable  Interest  in  property. 

Cited  in  Ludington  v.  Patton,  121  Wis.  655,  99  N.  W.  614,  holding  that  the 
insurable  interest  of  a  widow  is  limited  to  her  contingent  and  dower  rights. 
Retention  of  policy  as  waiver  of  mistake  or  frand  of  insurer. 

Cited  in  note  (67  L.R.A.  706)  on  retention  of  policy  as  waiver  of  mistake 
or  fraud  of  insurer  or  its  agent. 

2  L.  R.  A.  67,  MISSOURI  P.  R.  CO.  v.  LEWIS,  24  Neb.  848,  40  N.  W.  401. 
Enforcement  of  statntory  liability  in  another  state. 

Cited  in  O'Reilly  v.  New  York  &  N.  E.  R.  Co.  16  R.  I.  396,  6  L.  R.  A.  720, 
19  Atl.  244,  and  Nelson  v.  Chesapeake  &  0.  R.  Co.  88  Va.  976,  15  L.  R.  A.  587, 
14  S.  E.  838.  holding  right  of  action  created  by  statute  may  be  prosecuted  in 
state  having  similar  statute;  Huntington  v.  Attrill,  146  U.  S.  675,  36  L.  ed. 
1130.  13  Sup.  Ct.  Rep.  224,  holding  statute  making  officers  of  corporation  sign- 
in  false  certificate  liable  for  debts,  enforceable  in  another  state;  Bain  v. 
Northern  P.  R.  Co.  120  Wis.  416,  98  N.  W.  241,  holding  that  an  action  for 
personal  injuries  may  be  prosecuted  in  any  jurisdiction  where  defendant  may 
be  found. 

Cited  in  notes  (56  L.  R.  A.  196,  203)  on  taking  jurisdiction  of  cause  of  action 
for  death  or  bodily  injury  arising  outside  of  state, — similar  statute  in  forun> 
as  condition;  (15  L.  R.  A.  583)  on  enforceability  of  rights  of  action  for  caus- 
ing death,  accruing  under  foreign  statutes;  (56  L.  R.  A.  215)  on  right  of  rep- 
resentative appointed  in  forum  to  maintain  action  for  death  caused  outside  of 
state;  (14  Am.  St.  Rep.  354)  on  action  to  enforce  cause  of  action  created  by- 
statute  of  another  state. 
I'nbloclied  frog  as  negligence. 

Cited  in  Cudahy  Packing   Co.   v.   Roy,   71   Neb.   606,   99  N.  W.   231,   holding 
master   not   liable   for   defects   of  appliances   of  which   he  has  no  notice   unless- 
the  exercising  of  ordinary  care  would  have  resulted   in  notice. 
Actions  for  negligence. 

Cited  in  footnote  to  Moe  v.  Smiley,  3  L.  R.  A.  341,  which  holds  action  for 
death  does  not  survive  against  administrator. 

Cited  in  notes    (4  L.  R.  A.  261)   on  liability  for  death  caused  by  negligence; 
(5   L.  R.   A.    172)    on   action   for  damages  for  death   caused  by  negligence;    (4 
L.  R.  A.  798)    on  liability  of  master  for  neglect  of  duty;    (2  L.  R.  A.  521)   ore 
master's  duty  to  provide  safe  appliances. 
Negligence   not   presumed   from   fact   of  accident. 

Cited  in  Sheets  v.  Chicago  &  I.  Coal  R.  Co.  139  Ind.  689,  39  N.  E.  154  r 
Wabash  R.  Co.  v.  Ray,  152  Ind.  398,  51  N.  E.  920;  Lane  v.  Missouri  P.  R.  Co. 
64  Kan.  758,  68  Pac.  626, — holding  operation  of  railroad  without  blocking  frogs 
not,  as  matter  of  law,  negligence;  Lane  v.  Misouri  P.  R.  Co.  64  Kan.  758,  68 
Pac.  626,  holding,  in  action  for  injuries  by  faulty  construction  of  switch,  plain- 
tiff must  show  it  either  defective  or  not  of  approved  kind;  Lincoln  Street  R. 
Co.  v.  Cox,  48  Neb.  810,  67  X.  W.  740,  holding  jury  may  not  infer  negligence 
from  mere  fact  of  accident. 
Cause  of  action  as  basis  for  granting  administration. 

Cited  in  Missouri  P.  R.  Co.  v.  Bradley,  51  Neb.  600,  71  X.  W.  283  (distin- 
guished in  dissenting  opinion),  holding  cause  of  action  for  causing  death,  estate 


2  L.R.A.  67]  L.  R.  A.  CASES  AS  AUTHORITIES.  218 

sufficient  for  granting  administration  where  nonresident  was  injured;  Re  Mayo, 
60  S.  C.  415,  54  L.  R.  A.  666,  38  S.  E.  634,  holding  cause  of  action  for  death 
enforceable  only  by  administrator  warrants  granting  administration  on  estate 
of  nonresident  without  other  assets. 

Cited  in  footnote  to  Re  Mayo,  54  L.  R.  A.  660,  which  authorizes  appointment 
of  administrator  in  county  where  nonresident  killed,  to  bring  action  for  his 
death. 

Cited  in  notes   (24  L.R.A.  686)   on  right  of  action  for  wrongful  death,  giving 
jurisdiction  for  appointing  administrator;    (1  L.R.A.  (N.S.)    886)   on  administra- 
tion based  on  right  of  action  for  negligent  killing  of  a.  person  as  an  asset. 
Appointment  of  administrator,  how  assailable. 

Cited  in  Bradley  v.  Missouri  P.  R.  Co.  51  Neb.  654,  66  Am.  St.  Rep.  473,  71 
N.  W.  282,  holding  appointment  of  administrator,  regular  on  record,  not  assail- 
able collaterally;  Missouri  P.  R.  Co.  v.  Bradley,  51  Neb.  605,  71  N.  W.  283,  hold- 
ing one  sued  by  administrator  cannot  institute  proceedings  to  revoke  appoint- 
jnent,  showing  no  want  of  jurisdiction. 

Distinguished  in  Elgutter  v.  Missouri  P.  R.  Co.  53  Neb.  749,  74  N.  W.  255, 
fielding  appointment  of  administrator  may  be  collaterally  attacked  where  record 
shows  lack  of  jurisdiction. 
.Judicial  notice. 

Cited  in  footnotes  to  Richardson  v.  Buhl,  6  L.  R.  A.  458,  holding  courts  will 
judicially  notice  illegality  of  contract;  Com.  v.  King,  5  L.  R.  A.  536,  which 
•authorizes  taking  judicial  notice  that  river  not  a  public  highway. 

:2  L.R.A.   75,  MISSOURI  P.  R.   CO.  v.  FAGAN,  72  Tex.   127,   13  Am.   St.  Rep. 

776,  9  S.  W.  749. 
Usage  and  custom  as  affecting1  contract  or  legal  liability. 

Cited  in  American  Cent.  Ins.  Co.  v.  Green,  16  Tex.  Civ.  App.  540,  41  S.  W.  74, 
'holding  insurance  custom  as  to  use  of  gasoline,  not  provable  to  vary  policy; 
Pennsylvania  R.  Co.  v.  Naive,  112  Tenn.  258,  64  L.R.A.  443,  79  S.  W.  124, 
.admitting  custom  of  carriers  to  suspend  business  on  the  fourth  of  July;  Mis- 
souri, K.  &  T.  R.  Co.  v.  Tarwater,  33  Tex.  Civ.  App.  117,  75  S.  W.  957,  hold- 
Ing  evidence  of  a  custom  of  conductors  to  allow  old  trackman  to  ride  on 
trains  without  paying  fare  inadmissible. 

Cited  in  notes  (13  L.R.A.  439)   on  custom  and  usage  as  law;    (8  Eng.  Rul.  Cas. 
334,    336)     on    necessity    that    custom    be    limited,    certain,    reasonable    and    of 
lawful  origin. 
Waiver  of  rights  as  condition  of  receiving  and  carrying-  freight. 

Cited  in  Kirby  v.  Western  U.  Teleg.  Co.  4  S.  D.  117,  30  L.  R.  A.  619,  46  Am. 
St.  Rep.  765,  55  N.  W.  759,  holding  carrier  cannot  compel  shipper  to  waive  rights 
as  condition  of  carrying  freight. 
Contract  limitations  oil  carrier's  liability. 

Cited  in  Missouri,  K.  &  T.  R.  Co.  v.  Godair  Commission  Co.  39  Tex.  Civ. 
App.  302,  87  S.  W.  871,  holding  that  burden  of  showing  that  an  agreement, 
limiting  the  time  within  which  suit  should  be  brought  to  ninety  days,  is 
reasonable,  is  on  carrier;  Southern  Exp.  Co.  v.  Owens,  146  Ala.  423,  8  L.R.A. 
(N.S.)  374,  119  Am.  St.  Rep.  41,  41  So.  752,  9  A.  &  E.  Ann.  Cas.  1143,  hold- 
ing that  a  carrier  cannot  by  a  contract  fixing  the  value  of  the  property  limit  its 
liability  pro  tanto  for  losses  caused  by  its  own  negligence;  Houtz  v.  Union  P. 
R.  Co.  33  Utah,  194,  17  L.R.A.  (N.S.)  641,  93  Pac.  439,  holding  a  provision 
that  shipper  of  sheep  should  assume  all  risk  of  delay  in  transportation  is 
void. 


219  L.  K.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  73 

Cited  in  notes   (28  L.R.A. (N.S.)    640)    on  effect  of  shipping  contract  limiting 
common-law    liability,    signed   under   compulsion;     (18    L.R.A.   528)    on    right  of 
common  carrier  to  limit  common  law  liability  by  contract  in  absence  of  negli- 
gence. 
Stipulation   as   to   notice. 

Cited  in  Ft.  Worth  &  D.  C.  R.  Co.  v.  Greathouse,  82  Tex.  Ill,  17  S.  W.  834,  hold- 
ing  stipulation  as  to  giving  notice  of  damages  only  enforceable  when  pleaded  and 
reasonable;  Missouri  P.  R.  Co.  v.  Childers,  1  Tex.  Civ.  App.  305,  21  S.  W.  76, 
holding  reasonableness  of  stipulation  as  to  notice  of  loss  question  for  jury;  Hous- 
ton &  T.  C.  R.  Co.  v.  Davis,  11  Tex.  Civ.  App.  28,  31  S.  VV.  308  holding  burden 
upon  carrier  to  allege  and  prove  reasonableness  of  notice  of  loss  stipulation. 

Cited  in  footnote  to  Good  v.  Galveston,  H.  &  S.  A.  R.  Co.  4  L.  R.  A.  801,  hold- 
ing stipulation  as  to  written  notice  of  loss  to  be  given  to  nearest  station  agent 
unreasonable. 

Cited  in  notes   (7  L.R.A. (N.S. )    1044)   on  reasonableness  of  time  fixed  in  con- 
tract   of    shipment    of    live    stock    for    presentation    of    claim    for    damages;     (17 
L.R.A. (N.S.)    645)    on  notice  of  loss  or   injury  to  goods,   required  by  carrier's 
«ontract  as   condition  precedent. 
Measure  of  damagres. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Ball,  80  Tex.  606,  16  S.  W.  441,  hold- 
ing freight  charges,  if  not  paid,  should  be  deducted  from  damages;  Ft.  Worth 
&  D.  C.  R.  Co.  v.  Greathouse,  82  Tex.  Ill,  17  S.  W.  834,  holding  market  value 
at  place  of  destination  should  govern,  cattle  being  shipped  for  immediate  sale; 
Taylor,  B.  &  H.  R.  Co.  v.  Montgomery,  4  Tex.  App.  Civ.  Cas.  (Willson)  401, 
suggesting,  without  deciding,  that  evidence  as  to  value  at  time  cattle  were  sold 
is  admissible  as  to  damages;  New  York,  L.  E.  &  W.  R.  Co.  v.  Estill,  147  U.  S. 
<618,  37  L.  ed.  305,  13  Sup.  Ct.  Rep.  444,  and  Baker  v.  Minis,  14  Tex.  Civ.  App. 
416,  37  S.  W.  190,  holding  reduction  of  value  of  stock  by  premature  loss  of  off- 
spring proper  measure  of  damages;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Eddins,  7  Tex.  Civ. 
App.  121,  26  S.  W.  161,  holding  value  of  injured  animals  at  place  of  destination 
proper  measure  of  damages  on  contract  limiting  liability  to  defendant's  own 
line;  Missouri,  K.  &  T.  R.  Co.  v.  Webb,  20  Tex.  Civ.  App.  440,  49  S.  W.  526, 
holding  difference  between  value  of  property  at  time  it  was  delivered  and  at 
time  it  should  have  been,  proper  measure  of  damages;  Virginia  F.  &  M.  Ins.  Co. 
v.  Cannon,  18  Tex.  Civ.  App.  593,  45  S.  W.  945,  holding  evidence  of  market  value 
of  goods  where  salable  before  and  after  fire  admissible  in  proof  of  cash  value; 
New  York,  L.  E.  &  W.  R.  Co.  v.  Estill,  147  U.  S.  617,  618,  37  L.  ed.  305,  13  Sup. 
•Ct.  Rep.  444,  holding  difference  in  market  value  of  cattle  on  arrival  but  for 
and  by  reason  of  carrier's  negligence  proper  measure  of  damages;  Texas  &  P. 
R.  Co.  v.  White,  35  Tex.  Civ.  App.  522,  80  S.  W.  641,  holding  where  horses 
are  shipped  over  connecting  lines  and  suit  is  brought  against  initial  line  for 
injury  occurring  that  value  at  point  of  destination  is  measure  of  damages. 

Cited   in   note    (5   Eng.  Rul.   Cas.   526)    on   measure   of  damages  for  carrier's 
breach  of  contract. 
Dnties  niitl    responsibilities   of  carriers   of  stock. 

Cited  in  footnote  to  Good  v.  Galveston,  H.  &  S.  A.  R.  Co.  4  L.  R.  A.  8Ul. 
which  holds  carrier  liable  for  needless  delay,  confinement,  and  bruising  of  live 
•stock. 

Cited  in  notes  (9  L.  R.  A.  450,  452)  on  duty  to  furnish  cars  for  transporta- 
tion, and  safe  mode  of  delivery;  (4  L.  R.  A.  545)  on  responsibility  of  cariers  of 
live  stock;  (13  L.  R.  A.  202)  on  construction  of  contract  for  shipment  of  live 
stock;  (18  L.R.A. (N.S.)  92)  on  carrier  as  insurer  of  livestock;  (37  L.  ed.  U.  S. 


2  L.R.A.  75]  L.  R.  A.  CASES  AS  AUTHORITIES.  220 

293,  295)  on  duty  and  liability  as  carrier  of  live  stock;  (63  Am.  St.  Rep. 
554,  563)  on  respective  duties  of  carriers  and  shippers  of  live  stock;  (130  Am. 
St.  Rep.  446)  on  carrier's  liability  for  loss  of,  or  injury  to,  livestock. 

2  L.R.A.  78,  DAVIS  v.  KLINE,  96  Mo.  401,  9  S.  W.  724. 
Attorney  and  client. 

Cited  in  Aultman  v.  Loring,  76  Mo.  App.  70,  holding  attorney  buying  property 
on  execution  holds  subject  to  client's  election  to  take;  Eoff  v.  Irvine,  108  Mo. 
383,  32  Am.  St.  Rep.  609,  18  S.  W.  907,  holding  attorney  consulted  about  land 
title  may  not,  though  withdrawn  from  employment,  purchase  outstanding  title; 
Bucher  v.  Hohl,  199  Mo.  327,  116  Am.  St.  Rep.  492,  97  S.  W.  922,  denying 
right  of  attorney  to  acquire  title  to  clients  property  decreed  to  client  as 
alimony;  Guinan  v.  Donnell,  201  Mo.  204,  98  S.  W.  478,  holding  that  duty  of 
professional  confidence  of  attorney  to  client  does  not  cease  though  relation  of 
attorney  and  client  ceases. 

Distinguished  in  Stewart  v.  Perkins,  110  Mo.  671,  19  S.  W.  989,  holding  attor- 
ney taking  no  advantage  of  knowledge  acquired  in  professional  capacity  may  as- 
sert adverse  title. 
Testimony  of  deceased  witness,  how  proved. 

Cited  in  Dwyer  v.  Bassett,  1  Tex.  Civ.  App.  515,  21  S.  W.  621,  holding  agreed 
statement  of  facts  on  appeal,  its  correctness  being  proved,  admissible  to  prove 
testimony  of  deceased  witness. 

Cited  in  note  (91  Am.  St.  Rep.  208)  on  method  of  proof  of  testimony  of 
deceased  witness. 

Distinguished  in  Fisher  v.  Fisher,  131  Ind.  464,  29  N.  E.  31,  holding  bill  of 
exceptions  not  admissible  to  prove  evidence  of  deceased  witness,  without  proof 
of  correctness;  Simmons  v.  Spratt,  26  Fla.  463,  9  L.  R.  A.  347,  8  So.  123,  holding 
bill  of  exceptions  not  admissible  of  itself  to  prove  testimony  of  deceased  wit- 
ness. 
Eqnity  disregards  incompetent  evidence. 

Cited  in  Bush  v.  Arnold,  50  Mo.  App.  17,  holding  court  of  equity  must  dis- 
regard incompetent  evidence  in  deciding  case;  McCormick  v.  Parsons,  195  Mo. 
101,  92  S.  W.  1162,  holding  that  in  equity  cases  improperly  admitted  or  rejected 
evidence  will  b*  disregarded  on  appeal;  State  ex  rel.  Guinan  v.  Jarrott,  183  Mo. 
218,  81  S.  W.  876,  holding  an  appeal  in  equity  cases  the  court  consider* 
evidence  improperly  received,  or  excluded  when  exceptions  are  properly  reserved, 
but  will  not  reverse  judgment  for  that  reason;  Morris  v.  Parry,  110  Mo.  App. 
683,  85  S.  W.  620,  holding  that  because  suit  is  in  equity  the  rules  of  evidence  as 
to  competency  of  testimony  are  not  changed;  State  ex  rel.  Priddy  v.  Gibson,  184 
Mo.  503,  83  S.  W.  472,  holding  that  in  equity  cases  the  appellate  court  will  review 
the  whole  testimony. 
Sufficiency  of  sheriff's  deed. 

Cited  in  Hall  v.  Klepzig,  99  Mo.  89,  12  S.  W.  372,  holding  sheriff's  deed  suffi 
cient  where  recitals  conform  to  execution,  though  varying  from  judgment. 

2   L.R.A.   80,   GURLEY   v.   ARMSTEAD,   148   Mass.   267,   12   Am.   St.   Rep.   ».jr>. 

19  N.  E.  389. 
Conversion  hy  receipt  of  g-oods  from  possessor. 

Cited  in  Robert  C.  White  Live  Stock  Commission  Co.  v.  Chicago.  M.  &  St.  P. 
R.  Co.  87  Mo.  App.  336,  holding  possession  of  personal  property  prima  facie  evi- 
dence of  ownership;  Steele  v.  Marsicano,  102  Cal.  670,  36  Pac.  920,  holding 
there  must  be  a  tortious  act  to  establish  conversion;  Bates  v.  Weir,  121  App. 
Div.  279,  305  X.  Y.  Supp.  785,  holding  that  a  common  carrier  who  receives- 


221  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  81 

goods  from  one  whose  possession  is  tortious  and  without  knowledge  of  the 
rights  of  the  true  owner  is  not  liable  in  conversion. 

Cited  in  notes  (50  L.R.A.  652)  on  liability  of  servant  or  agent  for  conver- 
sion, trespass,  or  other  positive  act  of  wrongdoing  against  third  parties  under 
orders  of  his  employer;  (18  L.R.A. (X.S.)  494)  on  liability  for  conversion  by 
accepting  goods  for  transportation  from  one  not  the  owner;  (24  Am.  St.  Rep. 
803)  on  conversion  of  personalty  sufficient  to  sustain  trover;  (34  Am.  St.  Rep. 
735 )  on  conversion  by  common  carriers. 

Distinguished  in  Wright  &  C.  Wire  Cloth  Co.  v.  Warren,  177  Mass.  289,  58 
N.  E.  1082,  holding  notice  of  consignment  to  plaintiff,  with  words  "Notify  A.," 
not  to  authorize  treatment  of  A.  as  consignee. 

2  L.  R.  A.  81,  RIDEOLT  v.  KNOX,  148  Mass.  368,  12  Am.  St.  Rep.  560,  19  N. 

E.  390. 
Legislation  under  police  po\ver  to  prevent  nuisance  or  pnbllc  injury. 

Cited  in  Com.  v.  Parks,  155  Mass.  532,  30  N.  E.  174,  holding  that  it  was  valid 
exercise  of  power  for  board  of  aldermen  to  forbid  blasting  without  its  written 
consent;  Townsend  v.  State,  147  Ind.  632,  37  L.  R.  A.  299,  62  Am.  St.  Rep.  477, 
47  X.  E.  19,  holding  valid,  act  to  prevent  wasteful  use  of  natural  gas;  Health 
Department  v.  Trinity  Church,  145  N.  Y.  42,  27  L.R.A.  714,  45  Am.  St.  Rep. 
579,  39  N.  E.  833,  holding  act  compelling  use  of  water  in  tenements  valid: 
Com.  v.  Packard.  1S5  Mass.  65,  69  X.  E.  1067,  sustaining  an  act,  prohibiting 
the  storage  keeping  manufacture  or  refining  of  crude  petroleum  in  any  city 
-or  town  without  a  license;  Com.  v.  Sisson,  189  Mass.  251,  1  L.R.A. (N.S.) 
755,  109  Am.  St.  Rep.  630,  75  N.  E.  619,  sustaining  an  act  forbidding  the 
casting  of  saw  dust  into  a  stream;  State  v.  Marble,  72  Ohio  St.  34,  70  L.R.A. 
837,  106  Am.  St.  Rep.  570,  73  X.  E.  1063,  2  A.  &  E.  Ann.  Cas.  898,  sustaining 
an  act  prescribing  qualifications  of  one  who  may  treat  a  person  for  a  disease  for 
a  fee;  Pacific  States  Supply  Co.  v.  San  Francisco,  171  Fed.  732,  holding  an 
ordinance  prohibiting  the  operating  of  a  stone  quarry  within  city  limits  to  be 
invalid;  Masonic  Fraternity  Temple  Asso.  v.  Chicago,  131  111.  App.  29,  holding 
.a  municipal  corporation  to  have  no  power  to  order  reconstruction  of  buildings; 
Bonnett  v.  Vallier,  136  Wis.  202,  17  L.R.A.(X.S.)  491,  128  Am.  St.  Rep.  1061, 
110  X.  W.  885,  holding  a  law  requiring  in  the  construction  of  all  tenement 
houses  so  as  to  leave  a  court  of  six  feet  between  lot  line  and  wall  of  build- 
ing to  be  unreasonable. 

Cited  in  notes    (36  L.  R.  A.  593)    on  power  of  municipal  corporation  to  de- 
fine, prevent,  and  abate  nuisances. 
.—  Regulation  of  fences  or  the  like  on  private  lands. 

Cited  in  Horan  v.  Byrnes,  72  X.  H.  96,  62  L.R.A.  603,  footnote,  p.  602,  54  Atl. 
•945,  upholding  statute  making  private  nuisance  of  boundary  fence  exceeding  5 
feet,  erected  solely  to  annoy;  Brostrom  v.  Lauppe,  179  Mass.  317,  60  X.  E.  785, 
holding  act  relating  to  height  of  fences  applies  only  to  fence  on  or  near  divi- 
sion line;  Spaulding  v.  Smith,  162  Mass.  544,  39  X.  E.  189,  holding  act  regulat- 
ing height  of  fences  does  not  apply  to  fence  on  opposite  side  of  highway;  United 
States  v.  Douglas-Willan  Sartoris  Co.  3  Wyo.  301,  22  Pac.  92  (dissenting  opin- 
ion), majority  holding  act  forbidding  inclosure  of  public  lands  invalid  so  far 
as  it  forbids  erection  of  fence  wholly  on  owner's  land;  Camfield  v.  United  States, 
167  U.  S.  523,  42  L.  ed.  261,  17  Sup.  Ct.  Rep.  864,  holding  owner  cannot  build 
fence  on  his  own  land  so  as  to  inclose  public  lands  forbidden  by  Congress ;  Dixon 
v.  Mosser,  136  111.  App.  495,  holding  that  a  city  has  no  power  to  regulate  the 
height  of  a  partition  fence  unless  perhaps,  the  height  is  so  great  as  to  be  a 
menace  to  human  life;  St.  Louis  Gunning  Advertising  Co.  v.  St.  Louis,  235 


2  L.R.A.  81]  L.  R.  A.  CASES  AS  AUTHORITIES.  222 

Mo.  195,  137  S.  W.  929,  holding  valid,  ordinance  providing  that  billboard  shall  not 
be  over  fourteen  feet  high,  nor  closer  than  four  feet  of  the  ground  nor  nearer 
than  fifteen  feet  of  front  line,  nor  six  feet  of  side  line  of  lot;  Passaic  v.  Paterson 
Bill,  Posting,  Advertising  &  Sign  Painting  Co.  71  X.  J.  L.  77,  58  Atl.  343,  on  the 
invalidity  of  a  law  to  prohibit  the  maintaining  of  signboards  and  fences. 

Distinguished  in  Passaic  v.  Paterson  Bill,  Posting,  Advertising  &  Sign  Paint- 
ing Co.  72  N.  J.  L.  288,   111   Am.  St.  Rep.  676,   62   Atl.   267,  5  A.  &  E.  Ann. 
Cas.   995,  holding  void  an  ordinance   requiring  signs  and  billboards  to  be  con- 
structed not  less  than  ten  feet  from   street   line. 
Application  to  existing:  structures  .or  nuisances. 

Cited  in  Com.  v.  Roberts,  155  Mass.  283,  16  L.R.A.  401,  29  X.  E.  522,  holding 
act  to  regulate  water-closets  applied  to  violations  continuing  after  its  passage. 

Cited    in    note    (52    L.R.A.   940)    on    constitutionality    of    retroactive    statute 
creating  right  of  action  or  set  off  on  account  of  past  acts  or  transactions. 
Building   structure   on    otvn    land. 

Cited  in  Metzger  v.  Hochrein,  107  Wis.  270,  50  L.  R.  A.  307,  81  Am.  St.  Rep. 
841,  83  N.  W.  308,  and  Bordeaux  v.  Greene,  22  Mont.  256.  74  Am.  St.  Rep.  600, 
56  Pac.  218,  holding  owner  can  build  on  his  own  land  fence  to  any  height. 

Cited  in  notes  (123  Am.  St.  Rep.  573)   on  duty  and  liability  of  land  owners  to 
adjoining  proprietors;    (1  Eng.  Rul.  Cas.  764)   on  nonliability  for  diminution  of 
water   on   adjoining   land   by   pumping   from   well   on   one's   own   land. 
Actionable  spite  fence  or  nuisance. 

Cited  in  Lord  v.  Langdon,  91  Me.  222,  39  Atl.  552.  holding  building  fence 
above  legal  height  was  malicious  act;  Hunt  v.  Coggin,  '66  N.  H.  141,  20  Atl. 
250,  holding  structure  for  signboard  for  store  not  shown  to  have  been  erected 
for  purpose  of  annoying;  Smith  v.  Morse,  148  Mass.  409,  19  X.  E.  393,  holding 
illegal  fence  being  maliciously  allowed  to  stand,  owner  liable  even  if  nothing 
done  since  passage  of  act;  Barger  v.  Barrhiger,  151  N.  C.  438,  25  L.R.A.  (X'.S.) 
835,  66  S.  E.  439,  holding  maliciously  to  construct  a  fence  on  one's  property  to 
cut  off  the  light  and  air  from  his  neighbor's  windows  is  actionable. 

Cited    in    notes    (40    L.R.A.    178,    182)    on    liability   for    the    malicious    erec- 
tion of  a  fence;    (21  Am.  St.  Rep.  512)   on  malicious  fences;    (107  Am.  St.  Rep. 
232)    on  what  are  public  nuisances. 
Participation  in  nuisance  essential  to  liability. 

Cited  in  note    (32  L.R.A.  (X.S.)    902)    on  connection  with  or  participation  in 
nuisance  essential  to  responsibility. 
Malice  as  tort. 

Cited  in  Morrison  v.  Lawrence,  186  Mass.  462,  72  X.  E.  91,  holding  that  in 
actions  of  tort  at  common  law  intent  or  motive  is  material  only  on  the 
measure  of  damages. 

Cited  in  notes    (62   L.R.A.  686)    on  effect  of  bad  motive   to  make  actionable 
what  would   not  otherwise  be  so;    (25   Eng.  Rul.   Cas.   83)    on   immateriality  of 
motive   on    liability    for    wilfully    and    intentionally    harming   another    in    exer- 
cise of  a  legal  right. 
Injunction   to   prevent   nuisance. 

Cited  in  Middlesex  Co.  v.  McCue,  149  Mass.  104,  14  Am.  St.  Rep.  402,  21  X. 
E.  230,  holding  owner  will  not  be  enjoined  from  cultivating  his  land,  although 
solid  matter  carried  into  neighbor's  pond;  Karasek  v.  Peier,  22  Wash.  427.  50 
L.  R.  A.  348,  61  Pac.  33,  autborizing  injunction  against  erection  of  fence  where 
malevolence  shown;  Koblegard  v.  Hale,  60  W.  Va.  39,  114  Am.  St.  Rep.  868,  53 
S.  E.  793,  9  A.  &  E.  Ann.  Cas.  732,  denying  the  right  to  enjoin  the  main- 


223  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  83 

taining  of  a  fence  on  sole  ground  that  it  deprived  a  building  on  adjoining  lot 
of  light  and  air. 

Cited  in  footnote  to  Hague  v.  Wheeler,  22  L.  R.  A.  141,  which  denies  liability 
to  adjoining  owner  for  permitting  escape  of  gas  from  well. 
Police  restraint  on  business. 

Cited  in  Com.  v.  Gilbert,  160  Mass.  160,  22  L.  R.  A.  442,  35  N.  E.  454,  holding 
valid  act  forbidding  catching  and  selling  fish  artificially  propagated  and  main- 
tained; John  P.  Squire  &  Co.  v.  Tellier,  185  Mass.  21,  102  Am.  St.  Rep.  322, 
G9  X.  E.  312,  upholding  a  statute  providing  that  sales  of  merchandise  in 
bulk  and  not  in  ordinary  course  of  business  shall  be  void  as  against  creditors 
unless  certain  requirements  for  information  and  protection  of  creditors  is 
complied  with;  State  v.  Redmon,  134  Wis.  114,  14  L.R.A.  (X.S.)  238,  126  Am.  St. 
Rep.  1003,  114  X.  W.  337,  15  A.  &  E.  Ann.  Gas.  408,  holding  unconstitutional 
a  law  absolutely  giving  occupant  of  lower  berth  authority  as  to  closing  of 
upper  berth  when  unoccupied;  Aikens  v.  Wisconsin,  195  U.  S.  205,  49  L.  ed.  159, 
25  Sup.  Ct.  Rep.  3,  holding  valid  a  statute  prohibiting  combinations  for  the 
purpose  of  willfully  or  maliciously  injuring  another  in  his  reputation. 

Cited  in  note   (21  L.  R.  A.  794)    on  police  restraints  upon  business. 
Declaration   of   wife   against   Husband's   interest. 

Cited  in  Fourth  Xat.  Bank  v.  Xichols,  43  Mo.  App.  390,  holding  unsworn  dec- 
laration by  wife  against  husband's  interest  inadmissible. 
Right  to  compensation  for  destruction  of  nnisance. 

Cited  in  Taft  v.  Com.  158  Mass,  547,  33  X.  E.  1046,  on  legislative  change  in 
law  of  nuisance  without  compensation;  Miller  v.  Horton,  152  Mass.  547,  10 
L.R.A.  119,  23  Am.  St.  Rep.  850,  26  N.  E.  100,  holding  horse  cannot  be  condemned 
to  be  killed  without  compensation,  unless  it  has  a  contagious  disease. 

2  L.  R.  A.  83,  DODGE  v.  BOSTOX  &  B.  S.  S.  CO.  148  Mass.  207,  12  Am.  St.  Rep. 

541,  19  X.  E.  373. 
Hciii  n  11  i  n;i  and  ending1  of  relation  of  carrier  and  passenger. 

Cited  in  June  v.  Boston  &  A.  R.  Co.  153  Mass.  82,  26  N.  E.  238,  holding  per- 
son walking  toward  station  intending  to  buy  ticket  not  a  passenger;  Seawell 
v.  Carolina  C.  R.  Co.  132  N.  C.  859,  44  S.  E.  610,  holding  person  waiting  at  sta- 
tion to  take  train  entitled,  as  passenger,  to  protection  from  assault;  Fremont, 
E.  &  M.  Valley  R.  Co.  v.  Hagblad,  72  Xeb.  781,  4  L.R.A.  (X.S.)  258,  101  X.  W. 
1033,  9  A.  &  E.  Ann.  Cas.  1096,  holding  carrier  owes  duty,  as  a  passenger 
to  a  party  from  time  he  goes  to  depot  within  a  reasonable  time  before  de- 
parture of  train  and,  by  purchase  of  ticket,  or  otherwise  has  indicated  to 
carrier  his  intention  to  become  a  passenger;  Greb  v.  Pennsylvania  R.  Co.  41 
Pa.  Super.  Ct.  70,  denying  recovery  from  railroad  by  passenger  pursued,  after 
alighting,  along  station  platform,  by  baggage  master  and  conductor  and  wan- 
tonly and  maliciously  assaulted. 

Distinguished  in  Webster  v.  Fitchburg  R.  Co.  161  Mass.  300,  24  L.  R.  A.  524, 
37  N.  E.  165.  holding  running  to  board  train  outside  station  not  proper  presen- 
tation for  carriage;  Creamer  v.  West  End  Street  R.  Co.  156  Mass.  322.  16  L.  R. 
A.  491,  32  Am.  St.  Rep.  456,  31  X.  E.  391,  holding  relation  of  passenger  to 
carrier  terminates  as  soon  as  he  alights  from  street  car  in  street. 
Leaving  and  returning  at  intermediate  points. 

Cited  in  Alabama  G.  S.  R.  Co.  v.  Coggins,  32  C.  C.  A.  5,  60  U.  S.  App.  140, 
88  Fed.  459,  holding  person  alighting  at  intermediate  station  for  usual  and 
reasonable  purposes  still  a  passenger;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64 
Xeb,  640,  57  L.  R.  A.  892,  97  Am.  St.  Rep.  666,  90  X.  W.  649,  holding  rule 


2  L.R.A.  83]  L.  R.  A.  CASES  AS  AUTHORITIES.  224 

inapplicable  where  passenger  leaves  train  at  point  not  intended  for  such  pur- 
pose; Laub  v.  Chicago,  B.  &  Q.  R.  Co.  118  Mo.  App.  499,  94  S.  W.  550, 
holding  that  duty  does  not  cease  to  a  passenger  in  lighting  at  an  intermediate 
point  for  recreation;  Wood  v.  Metropolitan  Street  R.  Co.  181  Mo.  443,  81  S. 
W.  152,  holding  one  transferring  at  a  street  railway  transfer  point  to  be  a 
passenger;  Gannon  v.  Chicago,  R.  I.  &  P.  R.  Co.  141  Iowa,  40,  23  L.R.A. (N.S.) 
1062,  117  N.  W.  966;  St.  Louis,  I.  M.  &  S.  R  Co.  v.  Glossup,  88  Ark.  229,  114  S. 
W.  247,— holding  that  a  party  does  not  cease  being  a  passenger  by  alighting  at 
a  station  before  reaching  destination  where  he  exercises  due  care  in  doing  so; 
Austin  v.  St.  Louis  &  S.  F.  R.  Co.  149  Mo.  App.  405,  130  S.  VV.  385,  holding 
that  relation  is  not  terminated  by  passenger  alighting  at  request  of  con- 
ductor to  help  save  property  in  wreck;  Layne  v.  Chesapeake  &  0.  R.  Co.  66 
W.  Va.  626,  67  S.  E.  1303,  holding  that  passenger  does  not  cease  to  be  such 
by  alighting  at  intermediate  station  to  engage  in  altercation  with  railroad 
employee. 

Cited  in  footnote  to  De  Kay  v.  Chicago,  M.  &  St.  P.  R.  Co.  4  L.  R.  A.  632, 
which  holds  that  passenger  leaving  train  at  intermediate  station  assumes  respon- 
sibility for  his  movements. 

Cited  in  notes  (15  L.R.A.  399)  on  rights  and  liability  of  parties  when  pas- 
senger temporarily  leaves  vehicle  before  completing  journey;  (40  L.R.A.  (N.S.) 
1062)  on  liability  of  carrier  for  wilful  torts  of  servants  to  passengers. 

Distinguished  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64  Neb.  640,  97  Am. 
St.  Rep.  666,  90  N.  W.  649,  holding  one  leaving  train  sidetracked  at  intermedi- 
ate station  to  get  water  not  entitled  to  protection  as  passenger. 
Degree  of  care,  skill,  and  diligence  due  passenger. 

Cited  in  Gilbert  v.  West  End  Street  R.  Co.  160  Mass.  406,  36  N.  E.  60,  holding 
carrier  not  responsible  for  all  accidents  by  any  means  preventable;  Illinois  C.  R. 
Co.  v.  Kuhn,  107  Tenn.  Ill,  64  S.  W.  202;  Olds  v.  New  York,  N.  H.  &  H.  R.  Co. 
172  Mass.  77,  51  N.  E.  450;  Montgomery  &  E.  R.  Co.  v.  Mallette,  92  Ala.  215,  9 
So.  363, — holding  law  requires  carrier  to  use  highest  care,  diligence,  and  skill 
known  to  careful,  diligent,  and  skilful  carriers;  Central  of  Georgia  R.  Co.  v. 
Johnston,  106  Ga.  136,  32  S.  E.  78,  upholding  charge  that  carrier  should  exercise 
'•extra  high  degree  of  care"  toward  passengers;  Alabama  G.  S.  R.  Co.  v.  Hill, 
93  Ala.  521,  30  Am.  St.  Rep.  65,  9  So.  722,  upholding  charge  implying  that  law 
requires  carrier  to  use  "strict  diligence;"  Galligan  v.  Old  Colony  Street  R.  Co. 
182  Mass.  215,  65  N.  E.  48,  holding  street  railway  company  bound  to  exercise 
highest  degree  of  care  to  guard  against  landslide  in  cut  on  highway;  Nichols  v. 
Lynn  &  B.  R.  Co.  168  Mass.  530,  47  N.  E.  427,  holding  it  question  for  jury  whether 
street  car  was  started  with  due  care;  Re  Boston,  159  Fed.  266,  holding  that 
care  required  not  necessarily  the  utmost  care  and  diligence  of  which  men  are 
capable  of  exercising;  Chicago,  R.  I.  P.  R.  Co.  v.  Ralston,  77  Kan.  202,  93  Pac. 
592,  holding  duty  of  carrier  of  passengers  on  freight  trains  is  the  highest 
possible  degree  of  care  and  diligence  to  which  such  train  is  susceptible  con- 
sidering its  construction,  equipment  and  use  as  a  carrier  of  freight;  liges  v. 
St.  Louis  Transit  Co.  102  Mo.  App.  535,  77  S.  W.  93,  holding  street  railway  liable 
where  negligence  of  motorman  caused  car  to  lurch;  Gardner  v.  Boston  Elev.  R. 
Co.  204  Mass.  216,  90  N.  E.  534,  holding  street  car  company  liable  where 
conductor  started  car  without  looking  to  see  if  anyone  was  still  getting  on 
car  thus  injuring  one  just  stepping  on  step  of  car;  Marshall  v.  Boston  &  W. 
Street  R.  Co.  195  Mass.  286,  81  N.  E.  195,  holding  where  an  accident  oc- 
curred because  of  a  defect  in  iron  of  wheel  of  a  car  it  was  a  question  for  jury 
whether  every  reasonable  precaution  had  been  taken  to  reveal  defect;  Egan 
v.  Old  Colony  Street  R.  Co.  195  Mass.  160,  80  N.  E.  696,  holding  that  jury 


225  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  83 

might  infer  negligence,  against  a  street  car  company  from  mere  fact  of  a 
derailment  of  a  car  at  a  switch  though  cause  of  accident  was  unexplained; 
Campbell  v.  Duluth  &  N.  E.  R.  Co.  107  Minn.  361,  22  L.R.A.  (N.S.)  193,  120  N. 
W.  375,  holding  that  a  carrier  whose  primary  business  is  to  transport  logs 
is  not  bound  to  degree  of  perfection  in  carrying  passengers  as  one  whose  business 
is  more  ideal;  Millmore  v.  Boston  Elev.  R.  Co.  194  Mass.  326,  11  L.R.A. (N.S.) 
142,  120  Am.  St.  Rep.  558,  80  N.  E.  445,  holding  that  a  street  car  conductor  is 
not  bound  as  a  matter  of  law  to  see  that  a  passenger  has  alighted  before 
starting  car;  Kuhlen  v.  Boston  &  N.  Street  R.  Co.  193  Mass.  346,  7  L.R.A. 
(N.S.)  731,  118  Am.  St.  Rep.  516,  79  N.  E.  815,  holding  that  when  carrier  can 
anticipate  a  crowd  it  is  bound  to  provide  extra  men,  to  protect  its  passengers 
from  injury  from  the  struggling  of  crowd. 

Cited  in  notes  (2  L.  R.  A.  252)  on  liability  of  railroads  as  carriers,  as  in- 
surers of  lives  and  safety  of  passengers;  (6  L.  R.  A.  241)  on  care  and  diligence 
required  of  carrier  of  passengers;  (8  L.  R.  A.  674)  on  duty  of  carriers  to  use 
•uare  for  safety  of  passengers;  (12  L.  R.  A.  746)  on  duty  of  railroad  company  to 
furnish  proper  cars;  (5  Eng.  Rul.  Cas.  462)  on  extent  of  duty  to  secure  safety 
of  passengers. 
—  In  and  about  stations. 

Cited  in  Jordan  v.  New  York,  N.  H.  &  H.  R.  Co.  165  Mass.  347,  32  L.  R.  A.  102, 
52  Am.  St.  Rep.  522,  43  N.  E.  Ill,  upholding  recovery  for  injury  received,  by 
person  intending  to  become  passenger,  in  station  toilet  room;  Brooks  v.  Old  Col- 
ony R.  Co.  168  Mass.  167,  46  N.  E.  566,  holding  carrier  not  liable  to  passenger 
struck  upon  station  platform  by  runaway  horse;  Bethmann  v.  Old  Colony  R.  Co. 
155  Mass.  354.  29  X.  E.  587,  holding  carrier  owes  person  alighting  on  station 
platform  utmost  care  and  diligence  consistent  with  the  business;  Daniel  v.  Peters- 
burg R.  Co.  117  N.  C.  610,  23  S.  E.  327,  holding  carrier  liable  for  wrongful  shoot- 
ing of  traveler  by  depot  agent;  Young  v.  New  York,  N.  H.  &  H.  R.  Co.  171  Mass. 
34,  41  L.  R.  A.  193,  50  N.  E.  455,  holding  person  at  station  intending  to  take 
train  entitled  to  safe  access;  Daniel  v.  Petersburg  R.  Co.  117  N.  C.  610,  4  L.R.A. 
(N.S.)  502,  23  S.  E.  327,  holding  it  question  for  jury  as  to  whether  an 
employee  of  carrier  was  acting  within  scope  of  employment,  in  shooting  one, 
who  has  used  abusive  language  to  him  in  respect  to  storage  charge  on  bag- 
gage where  party  is  just  leaving  depot;  Burke  v.  St.  Louis  S.  W.  R.  Co.  120 
Mo.  App.  691,  97  S.  W.  981,  holding  that  a  steamship  company  must  use 
ordinary  care  to  keep  its  landing  places  in  safe  condition  for  that  purpose; 
Pomroy  v.  Bangor  &  A.  R.  Co.  102  Mo.  499,  67  Atl.  561,  holding  carrier  liable 
where  it  jerked  a  car  temporarily  used  as  a  station,  thus  injuring  a  party 
waiting  to  take  train;  Legge  v.  New  York,  N.  H.  &  H.  R.  Co.  197  Mass.  90, 
23  L.R.A. (N.S.)  636,  83  N.  E.  367,  holding  knowledge  of  the  use  by  passengers 
of  a  particular  route  in  leaving  car  does  not  amount  to  an  invitation  to  use 
it  where  other  proper  arrangements  have  been  provided. 

Cited  in  notes   (6  L.  R.  A.  193)   on  duty  of  carrier  to  keep  platforms  and  ap- 
proaches in  safe  condition;    (20  L.  R.  A.  521)  on  measure  of  care  which  a  carrier 
must  take  to  keep  its  platforms  and  approaches  safe. 
Car  platforms. 

Cited  in  Gilman  v.  Boston  &  M.  R.  Co.  168  Mass.  455,  47  N.  E.  193,  holding 
•carrier  liable  to  passenger  injured  by  slipping  on  snow  on  car  platform. 
Passenger  elevators. 

Cited  in  footnote  to  Goodsell  v.  Taylor,  4  L.  R.  A.  673,  which  holds  manager  of 
passenger  elevator  to  same  degree  of  care  as  common  carrier. 
L.R.A.  Au.  Vol.  I.— 15. 


I 


2  L.R.A.  83]  L.  R.  A.  CASES  AS  AUTHORITIES.  226 

Reasonableness  of  carrier's   regulations. 

Cited  in  Sweetland  v.  Lynn  &  B.  R.  Co.  177  Mass.  579,  51  L.  R.  A.  784,  59  X. 
E.  443,  holding  rule  forbidding  use  of  platform  by  passengers  may  be  waived  or 
abandoned;  Jackson  v.  Grand  Ave.  R.  Co.  118  Mo.  220,  24  S.  W.  192,  holding 
passengers  should  learn  carrier's  reasonable  regulations  for  their  safety. 

Cited  in  note  (3  L.  R.  A.  134)  on  passenger's  rights  to  proper  treatment  by 
carrier. 

2  L.  R.  A.  87,  ATTY.  GEN.  ex  rel.  ADAMS  v.  TARR,  148  Mass.  309,  19  N.  E.  358. 
Rights  in  public  waters. 

Cited  in  footnotes  to  California  Nav.  &  Improv.  Co.  v.  Union  Transp.  Co.  46 
L.  R.  A.  825,  which  holds  public  use  as  landing  place  of  shore  of  navigable  waters 
outside  municipality  not  included  in  dedication  for  highway;  Com.  v.  Man- 
chester, 9  L.  R.  A.  236,  which  holds  state  may  regulate  fishing  in  bay  within  its 
borders. 

Cited  in  notes   (9  L.R.A.  807)   on  fishery  rights;    (131  Am.  St.  Rep.  7G2)    on 
right  to  use  land  under  or  along  navigable  waters  while  fishing. 
Title  by  custom. 

Cited  in  Becker  v.  Hall,  116  Iowa,  593,  56  L.  R.  A.  557,  88  N.  W.  324,  holding 
custom  to  appropriate  ice  in  public  stream  insufficient  to  support  title  contrary 
to  public  right;  Becker  v.  Hall,  116  Iowa,  593,  56  L.R.A.  573,  38  X.  W.  3:24. 
holding  that  a  custom  as  to  appropriation  of  ice  formed  on  public  waters  which 
is  clearly  unreasonable  and  in  conflict  with  public  rights  will  not  be  sustained: 
Clark  v.  Allaman,  71  Kan.  234,  70  L.R.A.  983,  80  Pac.  571,  holding  that 
evidence  cannot  be  received  of  local  customs  contrary  to  the  established  rights 
of  a  riparian  owner. 

Cited  in  notes   (2  L.  R.  A.  836)   on  usages  and  customs;    (3  L.  R.  A.  860)   on 
binding  force  of  custom  and  usage;    (13  L.  R.  A.  439,  440)   on  custom  and  usage 
as  law;    (6  L.  R.  A.  261)   on  estate  created  by  dedication. 
Title  by  possession  adverse   to  public   right. 

Cited  in  Atty.  Gen.  v.  Vineyard  Grove  Co.  181  Mass.  509,  64  X.  E.  75,  holding 
one  year's  possession  insufficient. 

Cited  in  note    (53   L.   R.   A.   902)    on   prescriptive   right   to   maintain   public 
nuisance. 
Procedure  by  attorney  general. 

Cited  in  Atty.  Gen.  v.  Williams,  174  Mass.  484,  47  L.  R.  A.  319,  53  X.  E.  77, 
holding  information  in  equity  by  attorney-general  proper  method  to  prevent  vio- 
lation of  building  regulations  in  Boston;  McQuesten  v.  Atty.  Gen.  187  Mass. 
186,  72  N.  E.  965,  holding  in  a  proceeding  in  which  the  commonwealth  is  a 
party  the  attorney-general  may  authorize  an  attorney  at  law7  to  represent  a 
town  in  proceedings. 

Cited  in  notes  (42  L.R.A.  823)  on  abatement  of  buildings,  fences,  etc.,  as  nui- 
sances by  injunctions  at  puit  of  municipal  authorities;  (14  Am.  St.  Rep.  454) 
on  abatement  of  nuisance  by  suit  in  name  of  attorney  -general ;  (19  Eng.  Rul. 
Cas.  305)  on  relief  in  equity  in  behalf  of  public  against  obstruction  of  public- 
highway  by  proceedings  by  attorney-general. 
Title  to  provincial  settlements  by  royal  grant. 

Cited  in  Concord  Mfg.  Co.  v.  Robertson,  66  X.  H.  2,  18  L.  R.  A.  681,  25  Atl. 
718,  holding  grant  of  township  by  provincial  executive  in  name  of  King  passed 
title  to  grantees  as  owners  and  tenants  in  common. 


227  L.  R.  A.  CASES  AS  AUTHORITIES.  [fc  L.R.A.  90 

2  L.  R.  A.  92,  PEOPLE  ex  rel.  ATTY.  GEN.  v.  STANFORD,  77  Cal.  360,  19  Pac. 

693,  18  Pac.  85. 
Action*  for   usurpation   of  corporate  powers. 

Cited  in  People  v.  Reclamation  Dist.  No.  136,  121  Cal.  529,  50  Pac.  1068,  hold- 
ing state  not  estopped  from  questioning  validity  of  corporation  by  suffering,  for 
twenty  years,  exercise  of  corporate  rights;  People  ex  rel.  Stone  v.  Jefferds,  126 
Cal.  302,  58  Pac.  704,  holding  dismissal  of  action  for  usurpation  of  franchise  for 
laches  in  prosecution,  no  bar  to  subsequent  action. 
Parties  to  action  to  teat  corporate  existence. 

Cited  in  People  v.  Gunn,  85  Cal.  244,  24  Pac.  718,  holding  municipal  corpora- 
tion necessary  party  to  proceeding  to  test  validity  of  its  charter;  State  ex  rel. 
Sanche  v.  Webb,  97  Ala.  119,  38  Am.  St.  Rep.  151,  12  So.  377,  holding  alleged 
corporation  not  proper  party  to  action  for  fraudulent  usurpation  of  corporate 
powers;  People  ex  rel.  Sels  v.  Reclamation  Dist.  No.  551,  117  Cal.  117,  48  Pac. 
1016,  raising,  without  deciding,  question  whether  action  of  quo  warranto  can  be 
maintained  against  reclamation  district  whose  corporate  existence  is  questioned; 
State  ex  rel.  Prosecuting  Atty.  v.  South  Park,  34  Wash.  165,  101  Am.  St. 
Rep.  998,  75  Pac.  636,  holding  where  a  municipal  corporation  has  no  legal  ex- 
istence the  suit  must  be  brought  against  the  persons  assuming  to  act  in  a 
corporate  capacity;  State  ex  rel.  Gilbert  v.  Union  Invest.  Co.  7  S.  D.  53,  63  N. 
W.  232,  holding  in  an  action  to  annul  the  existence  of  a  corporation  the  action 
must  be  in  the  name  of  the  state  alone  as  plaintiff  and  the  corporation  as  only 
proper  party  defendant. 

Distinguished  in  People  v.  Montecito  Water  Co.  97  Cal.  277,  33  Am.  St.  Rep. 
172,  32  Pac.  236,  holding  the  making  of  a  corporation  defendant  with  an  aver- 
ment that  it  is  a  corporation  de  facto  but  not  de  jure,  does  not  estop  the  state 
from  questioning  its  corporate  character. 
Assignment  of  franchise  to  legally  organized  corporation. 

Cited  in  Los  Angeles  v.  Los  Angeles  City  Water  Co.  177  U.  S.  575,  44  L.  ed. 
894,  20  Sup.  Ct.  Rep.  736,  holding  contract  made  by  municipality  at  time  when 
decisions  established  right  of  legislature  to  grant  franchise  by  special  legisla- 
tion not  affected  by  subsequent  decisions  or  change  of  Constitution;  Santa 
Ana  Water  Co.  v.  San  Buenaventura,  56  Fed.  351,  holding  that  where  one 
duly  assigned  a  contract  to  furnish  water  to  a  city  to  a  corporation  that  cor- 
poration also  got  rights  as  respect  fixing  rates. 

2  L.  R.  A.  96,  ATLANTA  NAT.  BANK  v.  BURKE,  81  Ga.  597,  7  S.  E.  738. 
Liability  of  bank  paying  forged  paper. 

Cited  in  Kenneth  Invest.  Co.  v.  National  Bank,  96  Mo.  App.  145,  70  S.  W.  173, 
holding  bank  liable  to  depositor  for  money  paid  out  on  forged  checks;  Houser 
v.  National  Bank,  27  Pa.  Super.  Ct.  619,  holding  that  unless  the  drawer  of 
a  check  was  negligent  in  delivering  the  check  to  the  supposed  agent  of  payee  the 
bank  will  not  be  protected  in  paying  it  on  a  forged  endorsement;  Central  Nat: 
Bank  v.  National  Metropolitan  Bank,  31  App.  D.  C.  398,  17  L.R.A.  (N.S.) 
523,  holding  maker,  not  one  who  cashes  check,  responsible  where  one  under 
an  assumed  name  fraudulently  gets  maker  to  make  him  a  check  and  endorses 
check  in  assumed  name  and  gets  money  the  maker  having  identified  him. 

Cited  in  footnotes  to  Critten  v.  Chemical  Nat.  Bank,  57  L.  R.  A.  529.  which 
holds  bank  paying  plainly  altered  check  to  clerk  of  drawer  without  asking  ex- 
planation liable  for  loss  from  subsequent  payment  of  similar  checks;  Pickle  v. 
People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds  acceptance  of  cliook  necessary  to 
give  right  of  action  against  bank;  Janin  v.  London  &  S.  F.  Bank,  14  L.  R.  A» 


I 


2  L.R.A.  96]  L.  R.  A.  CASES  AS  AUTHORITIES.  228 

320,  which  holds  depositor's  delay  in  returning  forged  check  no  defense  to  bank 
not  injured  thereby. 

Cited  in  notes  ( 12  L.  R.  A.  793 )  on  liability  of  bank  paying  on  forged  signa- 
ture;  (27  L.  R.  A.  428)  on  duty  of  depositor  in  respect  to  checks  bearing 
forged  indorsements  charged  against  account;  (50  L.  R.  A.  80)  on  loss  in  case 
of  issue  or  indorsement  of  check  or  bill  to  impostor;  (17  Am.  St.  Rep.  898)  oh 
liability  of  bank  paying  forged  check. 
i!ut>  to  know  signature. 

Cited  in  footnotes  to  Kummel  v.  Germania  Sav.  Bank,  13  L.  R.  A.  786,  which 
holds  vigilance  to  detect  forgery  due  to  depositor  by  savings  bank  officers;  First 
Nat.  Bank  v.  Northwestern  Nat.  Bank,  26  L.  R.  A.  289,  which  holds  genuineness 
of  indorsement  not  admitted  by  drawee  accepting  or  paying  check. ' 

Cited  in  notes   (6  L.  R.  A.  724)  on  obligations  of  banker;    (6  L.  R.  A.  626)   on 
duty  and  obligation  of  bankers. 
Rights  of  payer  of  forged  paper. 

Cited  in  footnotes  to  Northwestern  Nat.  Bank  v.  Bank  of  Commerce,  15  L.  R. 
A.  102,  which  holds  bank  crediting  forged  draft  to  payee  and  forwarding  for 
collection  a  bona  fide  holder;  Iron  City  Nat.  Bank  v.  Ft.  Pitt  Nat.  Bank,  23  L. 
R.A.  615,  which  denies  right  of  recovery  by  payer  of  forged  check;  La  Fayette 
v.  Merchant's  Bank,  68  L.R.A.  231,  which  sustains  right  of  drawee  paying 
draft  on  forged  indorsement  in  ignorance  of  forgery  on  presentation  bearing  in- 
dorsement of  collecting  bank  to  recover  back  amount  so  paid. 
Relation  between  bank  and  depositor. 

Cited  in  note   (22  Am.  St.  Rep.  876)   on  relation  between  bank  and  depositor. 

2  L.  R.  A.  99,  BIRDSEYE  v.  BAKER,  82  Ga.  142,  14  Am.  St.  Rep.  142,  7  S.  E. 
863. 

Cor,'!  id    of  laws. 

Cited  in  notes  (2  L.  R.  A.  328)  on  conflict  of  laws  as  affecting  validity  of  con- 
tract;   (6  L.  R.  A.  110)  on  conflict  of  laws  in  regard  to  validity  of  insolvent's  as- 
signment;   (23  L.  R.  A.  34)    on  extraterritorial  effect  of  voluntary  assignment 
of  personal  property. 
Mi  us  of  debt. 

Cited  in  note  (6  L.  R.  A.  109)  on  validity  of  assignment  for  benefit  of  creditors. 

2  L.  R.  A.  102,  WESTERN  &  A.  R.  CO.  v.  EXPOSITION  COTTON  MILLS,  81 
Ga.  522,  7  S.  E.  916. 

Appeal  from  judgment  sustaining  demurrer  to  amended  complaint  in  83   Ga. 
441,  10  S.  E.  113. 
Inability  of  connecting  roads. 

Cited  in  Savannah,  F.  &  W.  R.  Co.  v.  Commercial  Guano  Co.  103  Ga.  597,  30  S. 
E.  555,  holding  railway  using  spur  track  of  another  company  to  obtain  goods 
:from  warehouse,  initial  carrier,  though  compensation  for  trackage  paid  to  another; 
Kerr  v.  Georgia  R.  Co.  105  Ga.  372,  31  S.  E.  114,  holding  company  not  contem- 
plated as  connecting  carrier  not  liable  as  such,  though  transporting  goods  to  des- 
tination; Atlanta  Nat.  Bank  v.  Southern  R.  Co.  106  Fed.  628,  holding  carrier  re- 
ceiving cotton  at  way  station  for  delivery  to  its  compress  not  connecting  carrier 
on  through  contract;  Susong  v.  Florida  C.  &  P.  R.  Co.  115  Ga.  364,  41  S.  E.  566, 
"holding  burden  is  on  connecting  carrier  receiving  car  without  exception  to  show 
shipment  was  not  then  in  good  order;  Bell  Bros.  v.  Western  &  A.  R.  Co.  125 
Ga.  513,  54  S.  E.  532,  holding  that  the  showing  that  the  consignor  delivered 
cabbages  to  an  initial  connecting  carrier  in  good  order  shifted  burden  to  con- 


229  L.  K.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  105 

necting  carrier  to  show  it  was  not  responsible;  Atlanta,  B.  &  A.  R.  Co.  v. 
Emanuel  &  Co.  6  Ga.  App.  32],  64  S.  E.  1098,  holding  one  doing  a  switching 
service  for  carrier  not  a  connecting  carrier;  Ohlen  v.  Atlanta  &  W.  P.  R,  Co. 
2  Ga.  App.  331,  58  S.  E.  511,  holding  that  the  presumption  at  common  law 
is  that  goods  were  delivered  to  a  carrier  in  good  condition;  Western  &  A.  R.  Co. 
v.  Haig,  136  Ga.  501,  71  S.  E.  792,  holding  railroad  not  liable  for  refusal  of 
connecting  railroad  to  continue  practice  of  switching  cars  to  side-track  to  be 
unloaded  for  consignee;  Louisville  &  X.  R.  Co.  v.  Burns,  9  Ga.  App.  244,  70  S. 
E.  1112,  holding  that  proof  of  receipt  by  consignee  of  goods  in  bad  order  cants 
burden  on  last  connecting  carrier  of  showing  that  it  did  not  receive  shipment 
in  good  order. 

Cited  in  note   (31  L.R.A.(X.S.)   94,  98,  100)   on  liability  of  connecting  carrier 
for  loss  beyond  own  line. 
Conflict  of  laws. 

Cited  in  Illinois  C.  R.  Co.  v.  Beebe,  174  111.  26,  43  L.  R.  A.  214,  66  Am.  St. 
Rep.  253,  50  X.  E.  1019,  holding  contract  of  carriage  performable  in  more  than 
one  jurisdiction,  governed  by  lex  loci  cclebrationis;  Coats  v.  Chicago,  R.  I.  & 
P.  R.  Co.  239  111.  164,  87  X.  E.  929,  holding  where  goods  are  to  be  carried 
partly  in  one  state  and  partly  in  another  the  law  of  the  state  where  the  con- 
tract of  carriage  is  made  governs. 

Cited  in  notes    (63  L.R.A.  525)    on  conflict  of  laws  as  to  carrier's  contracts; 
(88   Am.   St.   Rep.   125,  128)'  on   conflict  of  laws  as  to   limitation  of   carrier's 
liability  in  bills  of  lading. 
Carrier's  lien. 

Cited  in  note  (4  L.  R.  A.  376)  on  lien  of  carrier. 
Amendment  of  pleadings. 

Cited   in  Pennington   v.   Douglas,   A.  &  G.  R.   Co.   3   Ga.   App.   683,   60  S.  E. 
485;  Venable  Bros.  v.  Louisville  &  N.  R.  Co.  137  Fed.  982, — holding  that  a  suit 
for  a  penalty  cannot  be  controverted   into  an  action  upon  contract  by  amend- 
ment. 
Limitation  of  liability  of  carrier. 

Cited  in  Central  R.  Co.  v.  Hall,  124  Ga.  325,  4  L.R.A.(N.S.)  901,  110  Am. 
St.  Rep.  170,  52  S.  E.  679,  4  A.  &  E.  Ann  Cas.  128,  holding  that  a  common 
carrier  cannot  by  special  contract  exempt  himself  from  liability  for  loss  aris- 
ing from  his  own  negligence;  Southern  Exp.  Co.  v.  Hanaw,  134  Ga.  456,  67  S.  E. 
944,  holding  a  provision  in  an  express  company's  receipt  that  value  is  not  more 
than  fifty  dollars  unless  a  greater  value  is  stated  is  not  binding  where  no 
effort  was  made  to  arrive  at  valuation. 

Cited  in  note  (88  Am.  St.  Rep.  96)  on  limitation  of  carrier's  liability  in  bills 
of  lading. 

2  L.  R.  A.  105,  STERXBERGER  v.  CAPE  FEAR  &  Y.  VALLEY  R.  CO.  29  S.  C. 

510,  7  13.  E.  836. 
Interstate  commerce  beginning  and  ending  in  same  state. 

Cited  in  State  ex  rel.  Railroad  &  W.  Commission  v.  Chicago,  St.  P.  M.  &,  O.  R. 
Co.  40  Minn.  272,  3  L.  R.  A.  240.  12  Am.  St.  Rep.  730,  41  N.  W.  1047,  holding 
state  commission  cannot  fix  rates  between  two  points  in  same  state  over  route 
extending  across  another  state;  Hanley  v.  Kansas  City  Southern  R.  Co.  187  U. 
S.  621,  47  L.  ed.  336,  23.  Sup.  Ct.  Rep.  214,  denying  authority  of  state  commis- 
sioners to  fix  rates  between  points  within  state  over  railroad  passing  in  part 
through  adjoining  territory:  Hunter  v.  Charleston  &  \V.  C.  R.  Co.  81  S.  C.  171. 
62  S.  E.  13;  Frasier  &  Co.  v.  Charleston  &  W.  C.  R.  Co.  81  S.  C.  163,  62  S.  E. 


2  L.R.A.  105]  L.  R.  A.  CASES  AS  AUTHORITIES.  230 

14,— holding  a  state  law  providing  a  penalty  for  delay  does  not  apply  to  a 
shipment  of  freight  from  a  point  within  the  state  partly  through  another  state 
to  a  point  within  initial  state  in  the  absence  of  proof  of  delay  within  initial 
s^tate. 

Cited  in  notes  (60  L.  R.  A.  644,  646)  on  corporate  taxation  and  the  commerce 
clause;  (17  L.  R.  A.  443)  on  whether  shipments  between  points  in  the  same 
state  lose  their  character  of  domestic  commerce  by  passing  out  of  the  state  during 
transportation;  (28  L.R.A.(N.S.)  986;  47  L.  ed.  U.  S.  334)  on  interstate  char- 
acter of  transportation  between  points  in  same  state  over  route  which  passes 
outside  such  state. 

Disapproved  in  State  ex  rel.  Railroad  Comrs.  v.  Western  U.  Teleg.  Co.  113  N. 
C.  223,  22  L.  R.  A.  571,  18  S.  E.  389,  holding  telegraph  messages  between  points 
in  same  state,  although  partially  traversing  another  state,  not  interstate 
commerce. 

2  L.  R.  A.  106,  LEE  v.  MOSELEY,  101  N.  C.  311,  7  S.  E.  874. 
Residence  as  affecting  homestead  right. 

Cited  in  Fulton  v.  Roberts,  113  N.  C.  427,  18  S.  E.  510,  holding  instruction 
confounding  "residence"  and  "domicil"  harmless  where  jury  understands  home- 
stead right  is  abandoned  by  removal;  Jones  v.  Alsbrook,  115  N.  C.  52,  20  S.  E. 
170,  holding  residence  must  be  actual  to  entitle  citizen  to  homestead;  Chitty  v. 
Chitty,  118  N.  C.  654,  32  L.  R.  A.  396,  24  S.  E.  117  (dissenting  opinion),  majority 
holding  fugitive  from  justice  not  debarred  from  homestead  right  by  absence  from 
state. 

Cited  in  footnote  to  Bosquett  v.  Hall,  9  L.  R.  A.  351,  which  refuses  homestead 
exemption  because  of  residence  of  children  strangers  in  blood. 
Scope  of  homestead  exemption. 

Cited  in  Vanstory  v.  Thornton,  112  N.  C.  214,  34  Am.  St.  Rep.  483,  17  S.  E.  566 
{dissenting  opinion),  majority  holding  homestead  right  salable  or  assignable; 
Hughes  v.  Hodges,  102  N.  C.  249,  9  S.  E.  437,  holding  homestead  right  may 
be  abandoned  without  wife  joining  in  deed;  Hollins  v.  Cropper,  115  La.  989.  40 
So.  378,  holding  that  a  homestead  must  be  used  as  a  homestead  and  cannot 
be  rented  out. 

Cited  in  footnote  to  Wilkinson  v.  Merrill,  11  L.  R.  A.  632,  which  holds  house- 
holder not  deprived  of  homestead  right  by  death  of  entire  family. 

Cited  in  notes  (11  L.  R.  A.  705)  on  effect  of  judgment  liens  on  homestead 
right;  (6  L.  R.  A.  818)  on  homestead  exemption. 

2  L.  R.  A.  110,  ANDERSON  v.  WELLINGTON,  40  Kan.  173,  10  Am.  St.  Rep.  175, 

19  Pac.  719. 
Legislative  power  of  cities. 

Cited  in  Trotter  v.  Chicago,  33  111.  App.  210,  holding  ordinance  making  it  mis- 
demeanor to  parade  street  without  permit,  not  within  powers;  Sio,ux  Falls  v. 
Kirby,  6  S.  D.  68,  25  L.  R.  A.  623,  60  N.  W.  156,  holding  ordinance  prohibiting 
building  without  permit  of  city  inspector,  not  within  powers;  Re  Pryor,  55  Kan. 
727,  29  L.  R.  A.  400,  49  Am.  St.  Rep.  280,  41  Pac.  958,  holding  city  of  third 
class  without  power  to  regulate  price  of  gas  or  water  by  ordinance;  Gray  v. 
Omaha,  80  Neb.  527,  14  L.R.A.(N.S.)  1034,  114  N.  W.  600,  holding  power  to 
regulate  the  business  of  constructing  artificial  stone  cannot  be  implied  from 
power  to  construct  and  repair  walks. 

Cited  in  notes  (2  L.  R.  A.  142)  on  municipal  corporations  as  agencies  of  govern- 
ment; (20  L.  R.  A.  722)  on  delegation  of  municipal  power  as  to  license;  (36  L. 
H.  A.  596)  on  extent  of  power  of  municipal  corporation  to  define  nuisance;  (39 


•231  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  110 

L.R.A.  672)   on  municipal  power  over  nuisances  relating  to  use  of  streets;    (16 
Am.   St.  Rep.  584;   28  Am.   St.  Rep.   184)    on   validity   of  municipal   ordinance; 
(123  Am.  St.  Rep.  43)  on  test  of  validity  of  municipal  ordinance  as  denying  equal 
protection  of  the  laws. 
KensonubleiieHS  and   uniformity   of  ordinances  and  statutes. 

Cited  in  Bennett  v.  Pulaski  (Tenn.)  47  L.  R.  A.  281,  52  S.  W.  913,  holding  ordi- 
nances which  are  oppressive,  repugnant  to  fundamental  rights,  or  obnoxious  to 
general  laws,  invalid;  State  v.  Tenant,  110  N.  C.  609,  15  L.  R.  A.  424,  28  Am.  St. 
Hep.  715,  14  S.  E.  387,  holding  ordinance  prohibiting  building  without  permission 
of  aldermen  void,  because  arbitrary;  Richmond  v.  Dudley,  129  Ind.  116,  13  L.  R. 
A.  589,  28  Am.  St.  Rep.  180,  28  N.  E.  312,  holding  void  an  ordinance  restricting 
keeping  and  storing  of  oils  as  not  uniform;  Simrall  v.  Covington,  90  Ky.  450,  9  L. 
R.  A.  557,  29  Am.  St.  Rep.  398,  14  S.  W.  369,  holding  statute  imposing  on  agents 
of  foreign  insurance  companies  tax  not  required  of  local  companies  invalid;  Mar- 
shall &  B.  Co.  v.  Nashville,  109  Tenn.  511,  71  S.  W.  815,  holding  municipal  ordi- 
nance requiring  union  label  on  city  printing  invalid;  State  v.  Gerhardt,  145  Ind. 
484,  33  L.  R.  A.  329,  44  N.  E.  469  (dissenting  opinion),  majority  holding  condi- 
tions upon  which  license  to  sell  liquors  may  issue  sufficiently  specified  in  statute; 
Fulton  v.  Norteman,  60  W.  Va.  573,  9  L.R.A.(N.S.)  1203,  55  S.  E.  658,  holding 
void  as  discriminatory  an  ordinance  prohibiting  bringing  into  town  carcasses  for 
burial,  cremation,  or  manufacture  into  fertilizer;  Re  Van  Tuyl,  71  Kan.  661,  81 
Pac.  18],  holding  where  act  of  legislature  states  that  ordinance  shall  provide  a 
punishment  of  a  certain  offense  of  not  less  that  $100  or  more  than  $500  and 
imprisonment  for  not  less  than  thirty  days  or  more  than  six  months  that  an 
ordinance  providing  punishment  same  except  that  six  months  was  changed  to 
ninety  days  was  void. 

Cited  in  notes  (2  L.R.A.  723)  on  reasonableness  of  ordinance  subject  of  judicial 
inquiry;  (16  Eng.  Rul.  Cas.  679)  on  necessity  of  municipal  by-law  or  ordinance 
being  reasonable. 

Distinguished  in  State  v.  White.  44  Kan.  517,  25  Pac.  33,  holding  statute  pun- 
ishing mere  fornication  as  rape  not  invalid. 
Restricting  use  of  streets. 

Cited  in  Trotter  v.  Chicago,  33  111.  App.  210,  holding  ordinance  making  it  mis- 
demeanor to  parade  street  without  permit  of  police  department  unreasonable; 
State  ex  rel.  Garrabad  v.  Dering,  84  Wis.  590,  19  L.  R.  A.  861,  36  Am.  St.  Rep. 
948,  54  N.  W.  1104,  holding  ordinance  prohibiting  parades,  without  permit,  ex- 
cept by  persons  specified,  unreasonable;  Re  Gribben,  5  Okla.  389,  47  Pac.  1074, 
holding  ordinance  prohibiting  noise  in  streets  by  means  of  drums  unreasonable; 
Kansas  City  v.  McDonald,  60  Kan.  484,  45  L.  R.  A.  431,  57  Pac.  123,  holding 
ordinance  making  fast  driving  misdemeanor  unreasonable  when  applied  to  fire 
department;  Emporia  v.  Shaw,  6  Kan.  App.  812,  51  Pac.  237,  holding  ordinance 
prohibiting  solicitation  of  patronage  at  railway  depots,  except  by  persons  speci- 
fied, not  lacking  in  uniformity;  Re  Flaherty,  105  Cal.  570,  27  L.  R.  A.  533,  38 
Pac.  981  (dissenting  opinion),  majority  holding  ordinance  prohibiting  beating  of 
drum  on  street,  without  permit  of  officer  named,  not  unreasonable;  Peace  v. 
McAdoo,  110  App.  Div.  16,  96  N.  Y.  Supp.  1039,  holding  that  police  commission 
have  no  power  to  totally  prohibit  the  use  of  vehicles  on  parts  of  certain  streets. 

Cited  in  notes  (19  L.R.A.  858,  860)  on  validity  of  ordinances  as  to  street 
parades;  (104  Am.  St.  Rep.  642)  on  municipal  regulations  of  street  railways  for 
protection  of  public. 

Distinguished  in  Wilkes-Barre  v.  Garabed,  11  Pa.  Super.  Ct.  370,  hoMim; 
ordinance  prohibiting  beating  of  drum  in  street  without  permit  of  mayor  valid. 


2  L.R.A.  110]  L.  R.  A.  CASES  AS  AUTHORITIES.  232 

Disapproved,  in  effect,  in  Wilson  v.  Eureka  City,  173  U.  S.  35,  43  L.  ed.  605, 
19  Sup.  Ct.  Rep.  317,  holding  ordinance  requiring  permit  of  mayor  to  move 
building  through  street  not  unreasonable. 

2  L.  R.  A.  113,  LAMPERT  v.  HAYDEL,  96  Mo.  439,  9  Am.  St.  Rep.  358,  9  S.  W. 

780. 
Trusts,  when  active. 

Cited  in  Schoeneich  v.  Field,  73  Mo.  App.  455,  holding,  where  estate  is  limited 
to  trustee  to  pay  rents  and  profi4"  to  another  for  life  trustee  takes  legal  estate. 
Restraint  upon  alienation  by  cestui  qne  trust. 

Cited  in  Seymour  v.  McAvoy,  121  Cal.  442,  41  L.  R.  A.  547,  53  Pac.  946;  Roberts 
v.  Stevens,  84  Me.  333,  17  L.  R.  A.  270,  24  Atl.  873;  Brown  v.  Macgill,  87  Md. 
166,  39  L.  R.  A.  808,  67  Am.  St.  Rep.  334,  39  Atl.  613;  Leigh  v.  Harrison,  6£ 
Miss.  932,  935,  18  L.  R.  A.  51,  52,  11  So.  604;  Partridge  v,  Cavender,  96  Mo.  456,. 
9  S.  W.  785 ;  Bank  of  Commerce  v.  Chambers,  96  Mo.  466,  10  S.  W.  38 ;  Weller  v. 
Noffsinger,  57  Neb.  462,  77  N.  W.  1075;  Schoeneich  v.  Field,  73  Mo.  App.  458,— 
holding  limitation  upon  alienation  to  protect  income  from  creditors  and  pur- 
chasers, valid;  Mason  v.  Rhode  Island  Hospital  Trust  Co.  78  Conn.  85,  61  AtL 
57,  3  A.  &  E.  Ann.  Cas.  586.  holding  limitation  valid;  Dunephant  v.  Dickson,  153" 
Mo.  App.  310,  133  S.  W.  165;  Ressner  v.  Phillips,  189  Mo.  523,  107  Am.  St.  Rep. 
368,  88  S.  W.  66,  3  A.  &  E.  Ann.  Cas.  1005, — holding  spendthrift  trust  valid; 
Mattison  v.  Mattison,  53  Or.  258,  133  Am.  St.  Rep.  829,  100  Pac.  4,  holding  re- 
strictions on  alienation  valid;  Roden  v.  Helm,  192  Mo.  86,  90  S.  W.  798,  on 
validity  of  spendthrift  trust;  Heaton  v.  Dickson,  153  Mo.  App.  325,  133  S.  W.  159r 
holding  that  presumption  of  law  is  against  spendthrift  trust  and  it  must  be 
created  by  express  words  or  clearly  manifested  intention. 

Cited  in  footnotes  to  Roberts  v.  Stevens,  17  L.  R.  A.  266,  which  authorizes- 
establishment  of  spendthrift  trust  free  from  rights  of  creditors ;  Wales  v.  Bow- 
dish,  4  L.  R.  A.  819,  which  holds  devise  in  trust  for  life  with  power  of  appoint- 
ment not  subject  to  devisee's  debts;  Leigh  v.  Harrison,  18  L.  R.  A.  49,  which 
denies  creditor's  right  to  reach  debtor's  interest  under  spendthrift  trust ;  Murphy 
v.  Delano,  55  L.  R.  A.  727,  which  holds  income  of  spendthrift  trust  not  within 
reach  of  creditors  by  void  agreement  of  trustee  to  pay  certain  portion  of  income 
absolutely  to  beneficiary;  Hutchinson  v.  Maxwell,  57  L.  R.  A.  384,  which  denies 
power  to  create  equitable  life  estate  free  from  debts  of  beneficiary. 

Cited  in  notes  (11  L.R.A.  565)  on  policy  of  law  as  to  spendthrift  trusts;  (9 
Am.  St.  Rep.  407)  on  validity  of  spendthrift  trust;  (24  Am.  St.  Rep.  696)  on 
spendthrift  trusts;  (25  Eng.  Rul.  Cas.  625)  on  validity  of  condition  in  will 
against  alienation  of  income  of  trust  estate  by  beneficiary. 

Distinguished   in   Henson   v.    Wright,   88   Tenn.   508,  ,12   S.   W.    1035,   holding 
joint  deed  of  trustee  and  beneficiary  valid  as  to  life  estate. 
Purchase  for  benefit  of  another. 

Cited  in  Clark  v.  Cox,  118  Mo.  659,  24  S.  W.  221,  holding  purchase  of  property 
with  intent  to  hold  for  enjoyment  and  benefit  of  former  owner  valid. 
Conveyance  for  benefit  of  grantor. 

Cited  in  Brown  v.  Macgill,  87  Md.  168,  39  L.  R.  A.  809,  67  Am.  St.  Rep.  334r 
39  Atl.  613,  holding  conveyance  to  trustee,  whereby  grantor  retains  enjoyment  of 
income,  exempt  from  claims  of  creditors,  invalid. 

Cited  in  footnote  to  Brown  v.  McGill,  39  L.  R.  A.  80G.  which  denies  power  to 
create  trust  placing  one's  property  beyond  reach  of  creditors  while  retaining  full 
enjoyment  of  revenues. 


233  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  120 

Intent  of  testator  controlling. 

Cited  in  Jarboe  v.  Hey,  122  Mo.  348,  26  S.  W.  968,  and  Schoeneich  v.  Field,  73 
Mo.  App.  458,  holding  due  regard  must  be  given  direction  of  will  and  intent  of 
testator  in  determining  right  of  alienation. 

Cited  in  note  ( 10  L.  R.  A.  757)  on  creation  of  life  estate  by  will. 

2   L.  R.  A.   118,  GUNTHER  v.  NEW  ORLEANS  COTTON  EXCH.  MUT.  AID 

ASSO.  40  La.  Ann.  776.  8  Am.  St.  Rep.  554,  5  So.  65. 
Forfeiture  in  benefit  association. 

Cited  in  Modern  Woodmen  v.  Jameson,  48  Kan.  721,  30  Pac.  460,  holding  for- 
feiture waived  by  benefit  association,  notice  of  reinstatement  not  having  been 
given;  Elgutter  v.  Mutual  Reserve  Fund  Life  Asso.  52  La.  Ann.  1739,  28  So.  289, 
holding  no  forfeiture  when  notice  was  not  given  according  to  custom  of  company; 
Maginnis  v.  New  Orleans  Cotton  Exch.  Mut.  Aid  Asso.  43  La.  Ann.  1138,  10  So. 
180,  holding  death  of  member  during  suspension,  after  notice,  created  forfeiture; 
Lawrence  v.  Penn.  Mut,  L.  Ins.  Co.  113  La.  92,  36  So.  898,  1  A.  &  E.  Ann.  Cas. 
965,  holding  forfeiture  not  effected  by  acceptance  of  note  in  lieu  of  cash  payment 
for  premium;  Kavanaugh  v.  Security  Trust  &  L.  Ins.  Co.  117  Tenn.  42,  7  L.R.A. 
(N.S.)  259,  96  S.  W.  499,  10  A.  &  E.  Ann.  Cas.  680,  holding  forfeiture  for  non- 
payment of  premium  will  not  be  enforced  where  company  fails  to  give  notice  of 
maturity  and  amount  of  premium  in  accordance  with  its  practice  and  custom 
so  reasonably  long  continued  as  to  induce  belief  of  noninsistence  without  notice; 
Trotter  v.  Grand  Lodge,  I.  L.  H.  132  Iowa,  520,  7  L.R.A. (N.S.)  572,  109  N.  W. 
1099.  11  A.  &  E.  Ann.  Cas.  533,  holding  forfeiture  will  not  be  enforced  for 
delinquent  payment  of  premium  where  premiums  are  habitually  collected  and 
received  after  they  have  become  delinquent  and  such  conduct  members  have 
reason  to  conclude  strict  compliance  will  not  be  insisted  upon,  and  member 
tendered  payment. 

Annotation  cited  in  Farmers'  &  M.  Life  Asso.  v.  Caine,  123  111.  App.  422.  hold- 
ing forfeiture  waived  for  nonpayment  of  premium  where  company  has  extended 
time  therefor. 

Cited  in  footnote  to  McQuillan  v.  Mutual  Reserve  Fund  Life  Asso.  56  L.  R.  A. 
233,  which  holds  forfeiture  of  policy  waived  by  retaining  payment  made  after 
default  without  notice  of  any  condition  affixed. 

Cited  in  notes  (9  L.R.A.  189)  on  forfeitures  not  favored  in  the  law;  (19  Am. 
St.  Rep.  783)  on  forfeiture  of  insurance  provided  by  mutual  benefit  association. 
Estoppel  to  claim  forfeiture. 

Cited  in  Standard  Brewing  Co.  v.  Anderson,  121  La.  940,  46  So.  926,  holding 
right  to  claim  default  for  nonpayment  of  rent  on  due  day  waived  by  long  accept- 
ance of  rent  on  subsequent  days. 

Cited  in  notes  (52  Am.  St.  Rep.  549,  576)  on  estoppel  to  claim  forfeiture 
of  mutual  or  membership  life  or  accident  insurance;  (20  L.R.A. (N.S.)  1038) 
on  estoppel  by  failure  to  follow  custom  of  giving  insured  notice  of  maturity  of 
premium. 

2  L.  R.  A.  120,  LANGDON  v.  CENTRAL  R.  &  BKG.  CO.   37  Fed.  449. 
Consolidation    of   competing'   railroads. 

Cited  in  Hamilton  v.  Savannah,  F.  &  W.  R.  Co.  49  Fed.  422,  holding  transfer 
of  one  railroad  to  another  void;  Louisville  &  N.  R.  Co.  v.  Com.  97  Ky.  695,  31  S. 
W.  476,  and  Louisville  &  N.  R.  Co.  v.  Kentucky,  161  U.  S.  703.  40  L.  ed.  860,  Itf 
Sup.  Ct.  Rep.  714,  enjoining  the  consolidation  of  competing  railways;  Clarke  v. 


, 


2  L.R.A.  120]  L.  R.  A.  CASES  AS  AUTHORITIES.  234 

Central  R.  &  Bkg.  Co.  50  Fed.  339,  15  L.  R.  A.  684,  restraining  the  voting  power 
of  stock  of  one  railroad  held  by  another  railroad. 

Cited  in  notes  (45  L.  R.  A.  273)  on  restrictions  on  consolidation  of  parallel  or 
competing  railroads;  (64  L.  R.  A.  694)  on  illegal  trusts  under  modern  anti-trust 
laws;  (7  L.  R.  A.  606)  on  corporation's  lack  of  power  to  deal  in  stock  of  other 
corporations;  (8  L.  R.  A.  237)  on  foreign  corporation;  law  of  comity. 

2  L.  R.  A.  129,  BYAM  v.  COLLINS,  111  N.  Y.  143,  7  Am.  St.  Rep.  727,  19  X.  E. 

75. 
Privileged  communications. 

Cited  in  Mattice  v.  Wilcox,  147  N.  Y.  636,  42  N.  E.  270;  Sickles  v.  Kling,  60 
App.  Div.  516,  69  N.  Y.  Supp.  944;  Stern  v.  Barrett  Chemical  Co.  29  Misc.  613,  61 
N.  Y.  Supp.  221, — holding  privilege  question  of  law;  Norfolk  &  W.  S.  B.  Co.  v. 
Davis,  12  App.  D.  C.  328,  holding  privilege  question  for  court  where  all  disputed 
facts  determined  by  jury;  Webber  v.  Vincent,  29  N.  Y.  S.  R.  606,  9  N.  Y.  Supp. 
103,  holding  communication  to  interested  person  loses  privileged  character  if 
made  in  presence  of  others;  Moore  v.  Manufacturers'  Nat.  Bank,  123  N.  Y.  432, 
11  L.  R.  A.  757,  25  N.  E.  1048  (dissenting  opinion),  majority  holding  irrelevant 
charges  against  teller  in  action  on  bond  of  defaulting  cashier  not  privileged  as 
charge  in  pi'osecution  of  action;  Knapp  v.  Campbell,  14  Tex.  Civ.  App.  205,  36  S. 
W.  765,  holding  newspaper  charge  that  candidate  for  public  office  had  been  in- 
dicted for  keeping  gambling  house  not  privileged;  Reynolds  v.  Plumbers'  Ma- 
terial Protective  Asso.  30  Misc.  713,  63  N.  Y.  Supp.  303,  holding  communication 
of  refusal  to  pay  debts,  to  other  members  of  association,  qualifiedly  privileged 
where  by-law  provides  therefor;  Rowland  v.  Flood,  160  Mass.  516,  36  X.  E.  4S2. 
holding  report  of  public  investigating  committee  charging  plaintiff  with  dis- 
honesty and  insolvency  qualifiedly  privileged;  Henry  v.  Moberly,  6  Incl.  App.  494, 
33  N.  E.  981,  holding  school  trustee's  written  protest  in  board  meeting  against 
employment  of  plaintiff  as  teacher  qualifiedly  privileged:  Hemmens  v.  Xelson, 
138  N.  Y.  523,  20  L.  R.  A.  443,  footnote  p.  440,  34  X.  E.  342,  Affirming  36  X.  Y. 
S.  R.  906,  13  N.  Y.  Supp.  176,  holding  communication  of  defamatory  matter 
to  board  of  trustees,  written  by  teacher  about  wife  of  principal  of  school,  priv- 
ileged; Finley  v.  Steele,  159  Mo.  305,  52  L.  R.  A.  853,  60  S.  W.  108,  holding 
charges  in  communication  from  school  board  to  commissioner  on  removal  of 
teacher  qualifiedly  privileged;  McCarty  v.  Lambley,  20  App.  Div.  267.  40  X.  Y. 
Supp.  792,  holding  accusation  of  theft  privileged  when  made  by  manager  at  time 
of  plaintiff's  discharge,  in  presence  of  others,  after  information  of  confession ; 
McClean  v.  New  York  Press  Co.  46  N.  Y.  S.  R.  108,  19-  N.  Y.  Supp.  262,  holding 
publication,  in  interest  of  social  order,  of  plaintiff's  house,  by  typographical  er- 
ror, as  disorderly,  not  privileged;  Ross  v.  Ward,  14  S.  D.  245,  8(5  Am.  St.  Rep. 
746,  85  N.  W.  182,  holding  charge  to  jury  omitting  question  of  privilege  in  action 
for  libelous  accusation  of  larceny  erroneous;  Abraham  v.  Baldwin,  52  Fla.  157, 
10  L.R.A.(N.S.)  1055,  42  So.  591,  10  A.  &  E.  Ann.  Cas.  1148,  holding  existence  or 
non-existence  of  privilege  for  jury  when  all  essential  facts  and  circumstances  are 
disputed;  Holmes  v.  Royal  Fraternal  Union,  222  Mo.  574,  26  L.R.A.(N.S-)  1091, 
321  S.  W.  100,  holding  communication  from  fraternal  insurance  company  to  its 
members  in  community  that  local  agent  had  been-  discharged,  had  collected  pre- 
miums, but  failed  to  remit,  and  advising  members  their  rights  not  prejudiced, 
qualifiedly  privileged;  Overton  v.  White,  117  Mo.  App.  604,  93  S.  W.  363;  Ker- 
sting  v.  White,  107  Mo.  App.  277,  80  S.  W.  730, — holding  communication  of  state- 
ment of  one  member  of  society  for  promotion  of  moral  conduct  to  another  member 
as  to  immorality  of  third  member  with  one  outside  society,  privileged  as  against 
such  outsider,  when  made  in  belief  of  truth;  Walker  v.  Best,  107  App.  Div.  309, 


235  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  129 

05  X.  Y.  Supp.  351,  holding  communication  from  principal  of  city  school  to  super- 
intendent of  schools  and  comment  thereon  by  latter  to  superintendent  of  other 
schools,  as  to  work  of  teacher  in  first,  privilege;  Rose  v.  Imperial  Engine  Co. 
110  App.  Div.  439,  96  X.  Y.  Supp.  808,  holding  letter  by  employer  to  mother  of 
former  employee,  charging  employee  with  crimes  which  slightest  investigation 
would  have  shown  to  be  false,  not  privileged;  Lapetina  v.  Santangelo,  124  App. 
Div.  521,  108  X.  Y.  Supp.  975,  holding  letter  from  client  to  attorney  charging 
another  attorney  with  dishonesty  in  professional  matter,  one  of  qualified  priv- 
ilege; Morton  v.  Knife,  128  App.  Div.  96,  112  N.  Y.  Supp.  451,  holding  statement 
by  superior  police  officer  to  landlord  of  house  within  his  precinct  that  premises 
are  used  as  disorderly  house,  privileged  communication,  and  question  of  privilege 
for  court;  Logan  v.  Hodges,  146  N.  C.  42,  59  S.  E.  349,  14  A.  &  E.  Ann.  Cas.  103, 
holding  statement  concerning  public  official  not  privileged  when  not  addressed  to 
some  person  having  jurisdiction  to  entertain  complaint  as  to  such  official,  or 
power  to  redress  grievance  or  duty  to  perform  or  interest  in  connection  with 
it;  Vanloon  v.  Vanloon,  159  Mo.  App.  271,  140  S.  W.  631,  holding  that  qualified 
privileged  communication  is  communication  made  bona  fide  by  party  having 
interest  to  one  having  corresponding  interest;  Bingham  v.  Gaynor,  203  X.  Y. 
31,  96  X.  E.  84.  holding  that  citizen  may,  in  good  faith,  make,  without  liability, 
untrue  statement,  about  public  official,  to  his  superior. 

Cited  in  footnotes  to  Buisson  v.  Huard,  56  L.  R.  A.  296,  which  holds  privileged, 
answers  to  inquiries  by  interested  persons  as  to  defamatory  remarks  by  others; 
Fresh  v.  Cutter,  10  L.  R.  A.  67.  which  holds  voluntary  communication  in  good 
faith  to  neighbor  about  to  employ  servant  that  he  had  stolen  privileged;  Xissen  v. 
Cramer,  6  L.  R.  A.  780,  which  holds  relevant  words  spoken  by  party  to  action 
during  trial  privileged. 

Cited  in  notes  (2  L.  R.  A.  405)  on  privileged  communications;  (4  L.  R.  A. 
280)  on  communications  in  discharge  of  duty,  privileged;  (13  L.  R.  A.  98)  on 
privilege  of  fair  criticism  of  public  men;  (13  L.  R.  A.  420)  on  incidents  of 
libel;  (9  L.R.A.  621)  on  definition  of  libel;  (3  L.R.A.(N.S.)  697)  on  privileged 
occasion;  burden  of  showing  good  faith  and  probable  cause;  (104  Am.  St.  Rep. 
117,  140)  on  what  libelous  statements  are  privileged;  (9  Eng.  Rul.  Cas.  82) 
as  to  what  communications  enjoy  a  qualified  privilege. 
Malice. 

Cited  in  Mattson  v.  Albert,  97  Tenn.  235,  36  S.  W.  1090,  holding  malice  implied 
in  publication  of  false  statements  concerning  theater  manager  libelous  per  se; 
St.  James  Military  Academy  v.  Gaiser,  125  Mo.  527,  28  L.  R.  A.  676,  46  Am.  St. 
Rep.  502,  28  S.  W.  851,  holding  malice  implied  in  publication  of  charge  of  im- 
moral and  unreligious  administration  of  institution  of  learning;  Hartman  v. 
Morning  Journal  Asso.  46  X.  Y.  S.  R.  182,  19  N.  Y.  Supp.  399,  holding  malice 
implied  from  unprivileged  publication  of  charge  of  immoral  complicity  in  in- 
surance swindle;  McDonald  v.  Xugent,  122  Iowa,  655,  98  X.  W.  506,  holding 
malice  in  charging  another  with  having  venereal  disease  is  presumed  J  Lally  v. 
Emery,  59  Hun,  239,  12  X.  Y.  Supp.  785,  holding  actual  malice  question  for 
jury,  where  communication  prima  facie  privileged;  Davey  v.  Davey,  22  Misc.  669, 
50  N.  Y.  Supp.  161,  holding  substantial  damages  properly  awarded  on  implied 
malice,  where  article  libelous  per  se. 

Cited  in  footnotes  to  Pollasky  v.  Minchener,  9  L.  R.  A.  102,  which  authorizes 
inference  of  malice  from  sending  false  statement  as  to  mortgage,  advising  caution, 
to  patrons  of  commercial  agency;  Street  v.  Johnson,  14  L.  R.  A.  203,  which  holds 
deliverer  presumed  to  know  that  paper  contains  libel. 

Cited  in  notes  (6  L.  R.  A.  364)  on  malice  as  element  in  libel;  (3  L.  R.  A.  69) 
on  copies  from  other  papers  to  disprove  malice;  (13  Am.  St.  Rep.  452),  on  burden 


2  L.R.A.  129]  L.  R.  A.  CASES  AS  AUTHORITIES.  236 

of  proof  of  malice  in  libel  or  slander;   (15  Am.  St.  Rep.  337)  on  malice  in  news- 
paper libel. 

Distinguished  in  Warner  v.  Press  Pub.  Co.  15  Daly,  546,  8  X.  Y.  Supp.  341, 
holding  evidence  to  show  reporter's  belief  in  truth  of  published  love  letter  inad- 
missible to  rebut  presumption  of  malice. 

2  L.  R.  A.  137,  SKINNER  v.  HARRISON  TWP.  116  Ind.  139,  18  N.  E.  529. 
Charitable  uses  and  trusts. 

Cited  in  Clearspring  Twp.  v.  Blough,  173  Ind.  25,  88  N.  E.  511,  on  whether 
charitable  use  or  trust  enforceable  in  equity  is  created  by  will. 

Cited  in  footnotes  to  Re  John,  36  L.  R.  A.  242,  which  sustains  bequest  for  main- 
tenance of  free  public  schools;  People  ex  rel.  Ellert  v.  Cogswell,  35  L.  R.  A.  269, 
which  sustains  trust  for  educating  boys  and  girls  not  confined  to  poor  ones; 
Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  gift  of  free  public  library  in 
great  city  charitable;  Kelly  v.  Nichols,  19  L.  R.  A.  413,  as  to  what  constitutes 
charitable  use  or  trust. 

Cited  in  notes  (5  L.R.A.  107)  on  gifts  to  promote  public  good  as  charities; 
(14  L.R.A. (N.S.)  97,  109,  112,  113,  139)  on  enforcement  of  general  bequest  for 
charity  or  religion;  (63  Am.  St.  Rep.  259)  on  what  are  charitable  uses  or  trusts. 
Trustees. 

Cited  in  Rush  County  v.  Dinwiddie,  139  Ind.  134,  37  N.  E.  795,  holding  board 
of  commissioners  capable  to  act  as  trustees  under  will  establishing  charitable 
home;  Re  John,  30  Or.  520,  36  L.  R.  A.  251,  47  Pac.  341,  holding  trust  dependent 
upon  appointment  of  trustees  by  court  at  stated  periods  not  void  for  uncertainty: 
Hagen  v.  Sacrison,  19  N.  D.  179,  26  L.R.A.(N.S.)  735,  123  N.  W.  518,  holding  a 
bequest  for  the  amelioration  of  the  condition  of  the  poor  children  of  a  certain 
locality  would  not  be  defeated  by  reason  of  the  impossibility  of  carrying  out  a 
recommendation  as  to  the  persons  who  were  to  act  as  trustee  for  the  purpose  of 
carrying  out  the  bequest;  Chapman  v.  Newell,  146  Iowa,  425,  125  X.  W.  324, 
holding  bequest  to  county  permanent  school  fund  not  void  for  uncertainty. 
Removal  of  latent  ambiguity  in  ii  i  ft. 

Cited  in  Indianapolis  &  V.  R.  Co.  v.  Reynolds,  116  Ind.  359,  19  X.  E.  141,  hold- 
ing parol  evidence  admissible  to  limit  100  feet  right  of  way  to  40  feet  wher* 
width  in  original  deed  not  defined,  and  only  40  feet  fenced;  Chappell  v.  Mission- 
ary Soc.  3  Ind.  App.  359,  50  Am.  St.  Rep.  276,  29  X.  E.  924,  holding  evidence  ad- 
missible to  show  Church  of  Christ  intended  by  bequest  to  "Christian  Missionary 
Society;"  Daugherty  v.  Rogers,  119  Ind.  259,  3  L.  R.  A.  851,  20  X.  E.  779.  holding 
r.otes  to  amount  of  $6,000  extinguished  by  provision,  in  connection  with  small 
bequest,  "in  addition  to  what  I  have  already  given  him;"  Pate  v.  Bushong,  1(51 
Ind.  540,  63  L.  R.  A.  597,  69  N.  E.  291,  holding  error  in  description  of  land  wil) 
not  avoid  bequest,  where  testator's  intention  appears  with  reasonable  certainty, 
and  extrinsic  evidence  admissible  to  remove  ambiguity. 

Distinguished  in  Taylor  v.  Horst,  23  Wash.  452,  63  Pac.  231,  holding  parol  tes- 
timony inadmissible  to  add  omitted  land  to  devise  of  land  adjoining  in  absence  of 
ambiguity. 
Judicial  notice. 

Cited  in  footnotes  to  Com.  v.  King,  5  L.  R.  A.  536,  which  authorizes  taking  ju- 
dicial notice  that  river  not  a  public  highway;  Richardson  v.  Buhl,  6  L.  R.  A.  458, 
taking  notice  sua  sponte  of  contravention  of  public  policy  by  contract  in  suit. 

Cited  in  notes  (4  L.  R.  A.  44)  on  rules  applicable  to  judicial  notice  in  par- 
ticular states;  (7  L.  R.  A.  765)  on  capacity  of  municipal  coruoration  to  adminis- 
ter public  charity. 


237  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  142 

2  L.  R.  A.  139,  CRAWFORD  v.  HAZELRIGG,  117  Ind.  63,  18  N.  E.  603. 
Married   woman's   right   of  redemption. 

Cited  in  Union  Nat.  Bank  v.  McConaha,  14  Ind.  App.  84,  42  N.  E.  495,  holding 
married  woman  redeeming  from  foreclosure  of  husband's  mortgage  can  enforce 
against  other  owners  their  equitable  share;  Staser  v.  Gaar,  S.  &  Co.  168  Ind.  135, 
79  N.  E.  404,  holding  married  woman  entitled  to  dower  interest  sue,  against  gen- 
eral creditors  on  foreclosure. 
Married  woman's  contract. 

Cited  in  Heiney  v.  Lontz,  147  Ind.  421,  46  N.  E.  665,  holding  note  by  married 
woman  to  secure  money  advanced  to  husband  void. 
Effect  on  mortgage  of  extension  of  time  of  payment  of  debt. 

Cited  in  Wilson  v.  Pickering,  28  Mont.  440,  72  Pac.  821,  holding  renewal  of  note 
secured  presumptively  renews  mortgage  lien. 
Mortgage  foreclosure. 

Cited  in  Union  Trust  Co.  v.  Scott,  170  Ind.  674,  85  N.  E.  481,  on  right  of  re- 
ceiver of  insolvent  mortgagee  to  foreclosure. 

Cited  in  notes   (16  L.  R.  A.  468)   on  effect  on  mortgage  of  alteration  of  note 
secured  by  it;    (21  L.  R.  A.  556)   on  effect  of  statutory  bar  of  principal  debt  on 
the  right  to  foreclose  a  mortgage  or  deed  of  trust  securing  the  same;    (10  L.  R. 
A.  509)   on  limitation  of  action  for  foreclosure  of  mortgage. 
—  Protection  of  wife's  rights. 

Cited  in  Green  v.  Estabrook,  168  Ind.  127,  120  Am.  St.  Rep.  349,  79  N.  E.  373; 
Smith  v.  Sparks,  162  Ind.  276,  70  N.  E.  253,— holding  wife  entitled  to  have  hus- 
band's interest  sold  first  on  foreclosure. 

2  L.  R.  A.  142,  COM.  v.  PLAISTED,  148  Mass.  375,  12  Am.  St.  Rep.  566,  19  N.  E. 

224. 
Legislative  control  over  municipalities. 

Cited  in  Kingman,  Petitioner,  153  Mass.  573,  12  L.  R.  A.  421,  27  N.  E.  778,  hold- 
ing apportionment  of  cost  of  sewerage  system  among  benefited  towns  properly 
intrusted  by  legislature  to  commissioners  appointed  by  court;  State  ex  rel. 
Bulkeley  v.  Williams,  68  Conn.  149,  48  L.  R.  A.  491,  35  Atl.  24,  holding  city 
bound  to  pay  assessment  of  expense  of  maintaining  bridge  outside  municipal  lim- 
its, levied  by  commissioners  appointed  by  state;  Martin  v.  Tyler,  4  N.  D.  302,  25 
L.  R.  A.  847,  60  N.  W.  392,  holding  apportionment  of  benefits  of  drain  by  state 
commissioners  final;  State  ex  rel.  Caldwell  v.  Wilson,  121  N.  C.  470,  28  S.  E.  554, 
holding  statutory  requirement  of  qualifications  for  railroad  commissioner  in  ad- 
dition to  those  provided  by  Constitution  valid;  State  ex  rel.  Hawes  v.  Mason, 
153  Mo.  46,  54  S.  W.  524,  holding  statute  creating  and  providing  for  state  control 
of  municipal  police  force  supported  by  city  constitutional;  Americus  v.  Perry,  114 
Ga.  878,  57  L.  R.  A.  234,  40  S.  E.  1004,  holding  statute  providing  for  municipal 
police  board  under  control  of  governor  constitutional,  in  spite  of  prior  conflicting 
charter  provisions;  Gooch  v.  Exeter,  70  N.  H.  416,  85  Am.  St.  Rep.  637,  48  Atl. 
1100,  and  Newport  v.  Horton,  22  R.  I.  208,  "50  L.  R.  A.  338,  47  Atl.  312,  holding 
statute  creating  municipal  police  board  appointed  by  governor  constitutional; 
Mt.  Hope  Cemetery  v.  Boston,  158  Mass.  520,  35  Am.  St.  Rep.  515,  33  N.  E.  695, 
holding  unconstitutional  statute  providing  for  transfer  of  municipal  cemetery 
property  without  compensation  or  relief  from  obligation  to  bury  dead;  State  ca> 
rel.  Jameson  v.  Denny,  118  Ind.  418,  4  L.  R.  A.  92,  21  N.  E.  252  (dissenting 
opinion),  majority  holding  statute  creating  board  of  public  works,  appointed  by 
governor  to  control  city  streets,  etc.,  unconstitutional;  Horton  v.  Newport,  27 
R.  I.  289,  1  L.R.A.(N.S.)  517,  61  Atl.  759,  8  A.  &  E.  Ann.  Cas.  1097,  upholding 


2  L.R.A.  142]  L.  R.  A.  CASES  AS  AUTHORITIES.  238 

statute  providing  for  payment  of  expenses  of  local  police  department  out  of 
local  funds  of  municipality;  Graham  v.  Roberts,  200  Mass.  157,  85  X.  E.  1009, 
holding  statute  fixing  qualification  of  city  officers  constitutional;  Ware  v.  Fitch- 
burg,  200  Mass.  68,  85  X.  E.  951,  holding  statute  controlling  officers  of  cities  in 
administration  of  public  charities  constitutional;  Capron  v.  Taunton,  196  Mass. 
44,  81  X1.  E.  873,  upholding  right  of  manager  of  municipal  water  works,  provided 
for  by  statute,  to  hire  and  discharge  employees  against  wish  of  mayor;  Sims  v. 
Boston,  193  Mass.  549,  79  X.  E.  824,  holding  statute  giving  officers  and  boards  of 
city  right  to  remove  subordinates  does  not  apply  to  police  commissioners  who 
were  appointed  by  governor;  Arnett  v.  State,  168  Ind.  183,  8  L.R.A.(X.S-)  1194, 
80  X.  E.  153,  holding  law  requiring  governor  to  appoint  metropolitan  police  boards 
in  certain  cities  and  within  limits  to  fix  salaries,  constitutional;  Sprague  v. 
Minon,  195  Mass.  583,  81  N.  E.  284,  holding  metropolitan  water  board  having 
power  to  construct  systems  of  water  works  and  protect  purity  of  waters,  could 
permit  person  to  go  upon  pond  in  such  system  under  proper  regulations;  Dickie 
v.  Gordon,  39  N.  S.  330,  on  right  of  municipal  council  to  enact  by-laws  outside 
its  powers;  Ex  parte  Lewis,  45  Tex.  Crim.  Rep.  13,  108  Am.  St.  Rep.  929,  73  S. 
W.  811  (dissenting  opinion),  on  constitutionality  of  law  doing  away  with  city 
council  and  creation  of  board  of  commissioners;  State  ex  rel.  Jones  v.  Sargent, 
145  Iowa,  309,  27  L.R.A.(X.S-)  727,  139  Am.  St.  Rep.  439,  124  X.  W.  339,  up- 
holding statute  requiring  members  of  municipal  commission  to  be  appointed  from 
two  dominant  political  parties. 

Cited  in  footnotes  to  State  ex  rel.  McCausland  v.  Freeman,  47  L.  R.  A.  67, 
which  sustains  statute  arbitrarily  establishing  high  school,  and  requiring  its 
maintenance  by  people  of  county;  Davock  v.  Moore,  28  L.  R.  A.  783,  which  sus- 
tains legislative  power  to  provide  for  city  board  of  health  with  power  to  incur 
expenses  without  city's  consent;  Rathbone  v.  YVirth,  34  L.  R.  A.  408,  which  holds 
void  statute  for  bipartisan  police  board  of  four  members  to  be  selected  by  all 
members  of  common  council  voting  for  two  members  only. 

Cited  in  note  (48  L.  R.  A.  481)  on  power  of  legislature  in  respect  to  municipal 
officers,  etc. 

Distinguished  in  State  ex  rel.  Atty.  Gen.  v.  Moores,  55  Xeb.  518,  41  L.  R.  A. 
C36,  76  X.  W.  175,  holding  statute  providing  for  appointment  of  municipal 
Loard  of  fire  and  police  commissioners  by  governor  unconstitutional;  Ex  parte 
Corliss,  16  X.  D.  478,  114  X.  W.  962,  holding  law  giving  assistant  state's  at- 
torney of  county  right  to  visit  grand  jury  room  during  session  of  grand  jury, 
as  deputy  enforcement  commissioner,  unconstitutional. 

Criticized  in  State  ex  rel.  Jones  v.  Sargent,  145  Iowa,  309,  27  L.R.A.(X.S-) 
727,  124  X.  W.  339  (dissenting  opinion),  stating  that  expression  as  to  powor  of 
legislature  to  fix  the  qualifications  of  members  of  police  boards  was  mere  dictum. 
Delegation  of  legislative  authority. 

Cited  in  Com.  v.  Page,  155  Mass.  230,  29  X.  E.  512,  holding  license  regulation 
of  hackney  carriages  by  board  of  police  valid;  Brodbin  v.  Revere,  182  Mass.  601, 
66  X.  E.  607,  upholding  statute  empowering  park  commissioners  to  make  regula- 
tions for  use  of  parkways,  breaches  of  which  shall  be  punishable  as  breaches  of 
peace;  Welch  v.  Swasey,  193  Mass.  375,  23  L.R.A.(X.S.)  1162,  118  Am.  St.  Rep. 
523,  79  X.  E.  745,  holding  statute  delegating  to  commissioners  the  division  of 
city  into  districts  in  which  different  heights  of  buildings  are  provided  for  consti- 
tutional; Southern  R.  Co.  v.  Meltor,  133  Ga.  326,  65  S.  E.  665  (dissenting  opin- 
ion), on  constitutionality  of  rule  of  railroad  commissioners  under  delegation  of 
power  from  legislature,  compelling  furnishing  of  cars  under  penalty. 

Cited  in  note  (20  L.  R.  A.  722)  on  delegation  of  municipal  power  as  to  licenses. 


239  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  142 

Abridgment  of  right  of  local  self-government. 

Cited  in  Goodrich  v.  Mitchell,  68  Kan.  "Go,  64  L.R.A.  948,  75  Pac.  1034,  up- 
holding statute  giving  veterans  perference  for  appointment  to  public  office  over 
other  persons  of  equal  qualifications;  Goodrich  v.  Mitchell,  68  Kan.  771,  64  L.R.A. 
945,  104  Am.  St.  Rep.  429,  75  Pac.  1034,  1  A.  &  E.  Ann.  Gas.  288,  upholding  stat- 
ute giving  preference  veterans  of  army  or  navy  of  Civil  War  in  public  works  or 
office  in  every  public  department  of  government;  Lowell  v.  Archambault,  189  Mass. 
73,  1  L.R.A.  (X.S.)  460,  75  X.  E.  65,  holding  local  board  of  health  cannot  license 
erection  and  use  of  livery  stable  except  such  as  is  authorized  by  public  statute. 

Cited  in  note  (1  L.R.A.(X.S.)  513)  on  right  of  local  self-government;  legislative 
regulation  of  municipal  officers. 
Reasonableness  of  regulation. 

Cited  in  Com.  v.  Mulhall,  162  Mass.  499,  44  Am.  St.  Rep.  387,  39  N.  E.  183, 
holding  ordinance  restricting  weight  of  loads  carried  over  streets  of  Boston  rea- 
sonable and  valid;  Com.  v.  Cutter,  156  Mass.  56,  29  N.  E.  1146,  holding  ordinance 
compelling  removal  of  all  filth  from  private  passageway  by  abutting  owner,  irre- 
spective of  manner  of  accumulation,  reasonable;  Com.  v.  Ellis,  158  Mass.  556,  33 
N.  E.  651,  holding  ordinance  forbidding  unlicensed  sales  in  streets  refers  only  to 
sales  at  standstill  or  with  frequent  stops  and  is  reasonable  and  valid;  Wilkes- 
Barre  v.  Garabed,  11  Pa.  Super.  Ct.  374,  holding  ordinance  prohibiting  beating  of 
drum  in  streets  to  collect  crowd  for  religious  purposes  valid;  Chariton  v.  Sim- 
mons, 87  Iowa,  233,  54  N.  W.  146,  holding  ordinance  punishing  disobedience  to 
order  of  city  marshal  in  regard  to  processions  or  bands  of  music  reasonable; 
Peace  v.  McAdoo,  110  App.  Div.  14,  96  X.  Y.  Supp.  1039,  holding  prohibition  by 
police  commissioner  of  use  of  vehicles  on  parts  of  certain  streets  under  power  to 
regulate  traffic,  void;  Com.  v.  Packard,  185  Mass.  67,  69  N.  E.  1067,  holding 
statute  authorizing  licensing  storage  of  naphtha  or  any  other  product  of  crude 
petroleum  valid;  Fitts  v.  Atlanta,  121  Ga.  575,  67  L.R.A.  807,  104  Am.  St.  Rep. 
167,  49  S.  E.  793,  holding  ordinance  prohibiting  holding  of  public  meetings  on 
street  without  license  valid;  Lemieux  v.  Young,  211  U.  S.  493,  53  L.  ed.  299, 
29  Sup.  Ct.  Rep.  174;  Young  v.  Lemieux,  79  Conn.  442,  20  L.R.A.(X.S.)  165, 
129  Am.  St.  Rep.  193,  65  Atl.  436,  8  A.  &  E.  Ann.  Cas.  452,— holding  statute  pro« 
hibiting  sale  of  entire  stock  of  goods  by  retail  dealer  without  prescribed  notice 
to  creditors,  reasonable;  Com.  v.  Maletsky,  203  Mass.  245,  24  L.R.A. (X.S.)  11 71, 
89  X.  E.  245,  holding  provision  in  ordinance  forbidding  use  of  any  building  for 
picking,  sorting  or  storage  of  rags  without  permit  from  chief  of  fire  depart- 
ment, void. 

Cited  in  notes  (19  L.  R.  A.  863)  on  validity  of  ordinances  as  to  street  parades; 
(39  L.  R.  A.  673)  on  municipal  power  over  nuisances  in  streets;   (21  L.  R.  A.  792) 
on  constitutionality  of  class  legislation;    (16  Eng.  Rul.  Cas.  678,  680)   on  neces- 
sity of  municipal  by-law  or  ordinance  being  reasonable. 
Impeachment  of  title  of  board  of  police  to  office. 

Cited  in  Prince  v.  Boston,  148  Mass.  287,  19  N.  E.  218.  holding  quo  warranto 
only  proper  proceeding  to  impeach  title  to  office  of  board  of  police. 
Necessity  for  evil  intention   to  sustain  conviction  for  violation   of  police 
regulation. 

Cited  in  Com.  v.  Lavery,  188  Mass.  16,  73  X.  E.  884,  holding  it  unnecessary. 
Religions  doctrine  or  practice  as  justification  for  act  declared  a  crime  by 
statute. 

Cited  in  State  v.  Chenoweth,  163  Ind.  99,  71  X.  E.  197,  on  sufficiency  of  prac- 
tice of  religious  doctrine  or  belief  as  defense. 


2  L.R.A.  142]  L.  R.  A.  CASES  AS  AUTHORITIES.  240 

2  L.  R.  A.  146,  FIXK  v.  OISCHEID,  40  Kan.  271,  19  Pac.  623. 
Effect  of  trust  on  land. 

Cited  in  Baird  v.  Williams,  4  Okla.  180,  44  Pac.  217,  holding  judgment  against 
party  holding  land  in  trust  in  his  own  name  not  encumbrance;  Ravi  v.  Ravi,  58 
Kan.  589,  50  Pac.  501,  holding  trustee  required  to  transfer  title  to  beneficiary; 
Piper  v.  Piper,  78  Kan.  85,  95  Pac.  1051,  holding  where  under  agreement  and 
without  fraudulent  purpose  property  is  purchased  and  vested  in  one  for  use 
and  benefit  of  purchaser,  valid,  enforceable  resulting  trust  created,,  although  some 
agreement  not  reduced  to  writing. 

Cited  in  footnotes  to  Cook  v.  Patrick,  11  L.  R.  A.  573,  which  holds  resulting 
trust  in  favor  of  one  paying  for  land  deeded  to  another  extends  only  to  life  inter- 
est, when  such  his  intent;  Edwards  v.  Culbertson,  18  L.  R.  A.  204,  which  holds 
woman  purchasing  land  with  money  fraudulently  obtained  by  promise  to  marry, 
trustee  on  refusal  to  do  so. 

2  L.  R.  A.  148,  PEOPLE  ex  rel.  NEW  YORK  v.  BROOKLYN,  111  N.  Y.  505,  If) 

N.  E.  90. 
Taxation  of  public  property. 

Cited  in  Board  of  Improvement  v.  School  District,  56  Ark.  360,  16  L.  R.  A.  42 lr 
35  Am.  St.  Rep.  108,  19  S.  W.  969,  holding  public-school  property  not  assessable 
for  local  improvement;  Re  Thrall,  30  App.  Div.  273,  51  N.  Y.  Supp.  595, 
holding  legacy  to  city  liable  to  transfer  tax;  Croner  v.  Cowdrey,  46  N.  Y. 
S.  R.  561,  19  N.  Y.  Supp.  909,  holding  sale  of  state  land  for  nonpayment  of 
city  tax  void;  Wells  v.  Johnston,  55  App.  Div.  487,  67  N.  Y.  Supp.  112,  holding 
county-tax  sale  subject  to  prior  vested  rights  of  people;  Smith  v.  Buffalo,  159  N. 
Y.  432,  54  N.  E.  62,  Affirming  90  Hun,  122,  holding  public  streets  not  assessable 
for  local  improvements;  People  ex  rel.  Amsterdam  v.  Hess,  157  N.  Y.  44,  51  N.  E. 
410,  and  Rochester  v.  Coe,  25  App.  Div.  304,  49  N.  Y.  Supp.  502,  holding  city 
property  outside  its  limits  liable  to  state  and  county  tax;  People  ex  rel.  Atkins 
v.  Buffalo,  63  App.  Div.  565,  71  N.  Y.  Supp.  1145,  Affirming  33  Misc.  172.  OS  N. 
Y.  Supp.  409,  holding  purchaser  at  city  tax  sale  takes  subject  to  prior  tax  liens 
held  by  city;  Edwards  &  W.  Constr.  Co.  v.  Jasper  County,  117  Iowa,  374,  !)4  Am. 
St.  Rep.  301,  90  N.  W.  1006,  holding  county  liable  for  assessment  for  paving: 
streets  around  courthouse  square;  Stiles  v.  Newport,  76  Vt.  171,  56  Atl.  662. 
holding  water  system  owned  'by  municipality  used  for  fire  protection  and  other 
municipal  uses,  and  also  to  supply  inhabitants  water  for  domestic  purposes,  ex- 
empt although  part  of  system  is  in  territory  of  another  municipality;  Clark  v.. 
Sprague  No.  2,  113  App.  Div.  646,  99  N.  Y.  Supp.  304,  holding  lands  of  munici- 
pality not  held  for  public  purpose  subject  to  taxation;  Canaan  v.  Enfield  Village 
Fire  Dist.  74  N.  H.  527,  70  Atl.  250,  holding  property  of  one  village  fire  dis- 
trict situate  in  another  village  but  used  in  construction  or  operation  of  water- 
works of  district,  exempt;  Delhi  v.  Delaware  County,  201  N.  Y.  413,  94  X.  E. 
874,  on  exemption  of  village  water  works  from  taxation;  People  ex  rel.  Hollock 
v.  Purdy,  72  Misc.  124,  130  N.  Y.  Supp.  1077,  holding  that  property  con- 
demned by  city  is  not  taxable,  though  subsequently  found  to  be  unnecessary  for 
public  use  for  which  it  was  condemned. 

Cited  in  footnote  to  Gate  City  Guards  v.  Atlanta,  54  L.  R.  A.  806,  which  de- 
nies exemption,  as  public  property,  to  armory  owned  by  volunteer  military  force. 

Cited  in  notes  (19  L.  R.  A.  81)  on  power  of  state  legislature  to  exempt  from 
taxation;  (48  L.  R.  A.  493)  on  power  of  legislature  to  impose  burdens  upon 
municipalities,  and  to  control  their  local  administration  and  property;  (132  Am. 
St.  Rep.  294,  296,  313,  325,  328,  330)  on  exemption  from  taxation  or  assessment 
of  lands  owned  by  governmental  bodies,  or  in  which  they  have  an  interest. 


241  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R..A  150 


Cited  in  note   (59  L.  R.  A.  523)  on  establishment,  regulation,  and  protection  of 
ferries. 
—  Franchise*   held   by   city. 

Cited  in  Re  Wheeler,  62  Misc.  44,  115  N.  Y.  Supp.  605,  holding  where  city  has 
accepted  grant  of  franchise,  its  operation  may  be  enforced  by  mandamus  at 
suit  of  private  citizen. 

2  L.  R.  A.   150,  HARNICKELL  v.  NEW  YORK  L.  INS.  CO.  Ill  N.  Y.  390,  18 

X.  E.  632. 
Conditions  in  acceptance  of  contracts. 

Cited  in  Travis  v.  Nederland  L.  Ins.  Co.  43  C.  C.  A.  656,  104  Fed.  488,  holding 
no  recovery  on  policy  which  had  never  taken  effect  through  failure  to  accept  pro- 
posal of  insured. 

Cited  in  footnote  to  Summers  v.  Mutual  Life  Ins.  Co.  66  L.R.A.  812,  which 
holds  contract  for  present  insurance  not  made  by  applicant  giving  note  for  first 
premium  in  consideration  that  a  policy  shall  be  issued  where  his  examination  is 
to  be  made  in  future  and  he  expressly  stipulates  that  note  shall  not  be  negotiated 
until  policy  has  been  delivered  and  accepted. 

Cited  in  note  (138  Am.  St.  Rep.  60)  on  delivery  and  acceptance  of  insurance 
policies. 

Distinguished  in  Westerfeld  v.  New  York  L.  Ins.  Co.  129  Cal.  77,  61  Pac.  667, 
holding  company  not  estopped  to  deny  authority  of  agent  to  make  an  agreement 
as  to  conditional  delivery. 
— —  Parol  conditions. 

Cited  in  Hartford  F.  Ins.  Co.  v.  Wilson,  187  U.  S.  476,  47  L.  ed.  265,  23 
Sup.  Ct.  Rep.  189,  holding  operation  of  insurance  policy  may,  by  agent's  oral 
agreement,  be  made  to  depend  on  company's  acceptance  of  risk;  Key  v.  National 
L.  Ins.  Co.  107  Iowa,  451,  78  N.  W.  68,  holding  refusal  by  insurance  company  to 
loan  on  property  insured,  as  condition  precedent  to  application,  authorized  recov- 
ery of  premium;  Shields  v.  Equitable  Life  Assur.  Soc.  121  Mich.  695,  80  N.  W. 
793,  holding  parol  agreement  bet\veen  applicant  and  party  advancing  premium 
did  not  show  conditional  delivery;  Wilson  v.  Hartford  F.  Ins.  Co.  17  App.  D.  C. 
25,  holding  insurance  contract  cannot  be  shown  by  verbal  conditional  delivery : 
Blewitt  v.  Boorum,  27  Jones  &  S.  329,  14  N.  Y.  Supp.  298,  holding  parol  evidence 
of  conditional  delivery  of  contract  under  seal  to  manufacture  patented  article 
admissible:  Moore  v.  Farmers'  Mut.  Ins.  Asso.  107  Ga.  203,  33  S.  E.  65,  holding 
evidence  admissible  to  show  conditional  delivery  of  policy;  McCaskey  Register  Co. 
v.  Green,  57  Misc.  549,  109  N.  Y.  Supp.  970,  holding  where  contract  is  signed 
by  agent  and  purchaser  but  is  silent  as  to  size  of  article  contracted  for,  testimony 
of  stipulation  at  time  of  making  contract  that  article  would  fit  place  purchased 
for  is  competent;  J.  I.  Case  Threshing  Mach.  Co.  v.  Barnes,  133  Ky.  333,  117 
S.  W.  418.  holding  delivery  in  escrow  of  contract  of  purchase  of  machine  and  notes 
for  purchase  price,  on  agreement  that  they  shall  not  go  into  effect  unless  on  suc- 
cessful preliminary  test  of  machine,  made  to  seller's  agent,  valid ;  Summers  v. 
Mutual  L.  Ins.  Co.  12  Wyo.  393,  66  L.R.A.  820,  109  Am.  St.  Rep.  992,  75  Pac.  937, 
holding  contract  not  consummated  where  agent  of  insurer  receives  note  on 
promise  to  deliver  policy  within  stated  time,  on  condition  note  is  not  to  be  nego- 
tiated until  policy  is  written,  delivered,  found  to  be  satisfactory  and  approved 
and  accepted;  Koester  v.  Northwestern  Port  Huron  Co.  24  S.  D.  557,  124 
N.  W.  740,  holding  admissible  parol  evidence  that  contract  was  never  delivered. 

Cited  in  footnote  to  Hicks  v.  British  America  Assur.  Co.  48  L.  R.  A.  424,  which 
L.R.A.  Au.  Vol.  I.— 16. 


2  L.R.A.  350]  L.  R.  A.  CASES  AS  AUTHORITIES.  242 

holds  rights  of  one  whose  property  was  destroyed  after  oral  contract  to  insure  it, 
but  before  policy  issued,  subject  to  provisions  of  standard  policy  prescribed  by 
law. 

2  L.  R.  A.  153,  FECHHEIMER  v.  BAUM,  37  Fed.  167. 

Federal  administration  of  equitable  rights  nnder  state  statutes. 

Cited  in  note  (18  L.  R.  A.  267)  on  adoption  by  Federal  courts  of  equitable  rem- 
edies enlarged  by  state  statutes. 
Fraud. 

Cited  in  43  Fed.  719,  decision  on  exceptions  to  master's  report,  holding 
agreement  to  prefer  creditor  not  rendered  fraudulent  by  failure  to  record; 
Stein  v.  Hill,  100  Mo.  App.  43,  71  S.  W.  1107,  holding  evidence  of  purchaser's 
insolvency  not  conclusive  as  to  fraudulent  intent  not  to  pay  for  goods. 

Cited  in  notes   (9  L.  R.  A.  609)   on  action  for  rescission  of  contract  for  fraud; 
(14  L.R.A.  265)   on  concealment  of  insolvency  as  fraud  in  obtaining  credit;    (18 
Am.  St.  Rep.  364)  on  rescission  of  sales  on  ground  for  fraud. 
—  Statement  to  mercantile  agency. 

Cited  in  Davis  v.  Louisville  Trust  Co.  30  L.R.A.(N.S-)   1015,  104  C.  C.  A.  24, 
181   Fed.   15,   holding  that   person,   obtaining,   through   subscriber   to   mercantile 
agency,   erroneous   information   furnished  by   corporation,   may   rescind   contract 
for  purchase  of  its  stock. 
"When   appointment   of  receiver   is  proper. 

Cited  in  note  (72  Am.  St.  Rep.  61)  as  to  when  appointment  of  receiver  is 
proper. 

2  L.  R.  A.  159,  KEYSER'S  APPEAL,  124  Pa,  80,  16  Atl.  577. 
Statute   of  limitations   against   debt   of   decedent. 

Cited  in  Geist's  Estate,  16  Pa.  Dist.  R.  333,  holding  presentation  of  claim  in 
orphan's  court  tolls  statute;  Re  Pitcairn,  20  Pittsb.  L.  J.  X.  S.  184,  holding  that 
statute  of  limitations  is  not  tolled  by  decedent's  death;  Gardner's  Estate,  19 
Pa.  Dist.  R.  138,  holding  that  right  to  recover  on  certificate  of  deposit  issued  by 
banking  firm  is  lost  by  laches,  where  claimant  fifteen  years  after  death  of  mem- 
ber of  firm  presents  claim  at  audit  of  his  executor's  accounts. 

Distinguished  in  Reber's  Appeal,  125  Pa.  23,  17  Atl.  189,  holding  adjudication 
and  allowance  of  claim  against  decedent's  estate  tolls  statute  of  limitations. 

2  L.  R.  A.  161,  ALEXANDER  v.  NORTHWESTERN  MASONIC  AID  ASSO.  126 

111.  558,  18  N.  E.  556. 
Who  entitled  to   insurance  payable  to  heirs  or  devisees. 

Cited  in  Lyons  v.  Yerex,  100  Mich.  217,  43  Am.  St.  Rep.  452,  58  N.  W.  1112, 
holding  widow  of  intestate  entitled  to  share  in  proceeds  of  benefit  certificate  pay- 
able to  heirs;  People  use  of  Brooks  v.  Petrie.  191  111.  508,  85  Am.  St.  Rep.  268, 
61  N.  E.  499,  Affirming  94  111.  App.  657,  holding  proceeds  of  beneficiary  certifi- 
cate payable  to  "legal  heirs  OF  devisees  of  holder"  not  estate  assets;  Birge  v. 
Franklin,  103  Minn.  483,  115  N.  W.  278,  holding  under  insurance  payable  to 
"heirs  at  law"  of  insured,  if  he  survives  beneficiary  (wife)  the  interest  in  the 
policy  passes  to  son  as  heir  of  beneficiary  on  death  of  beneficiary  before  insured; 
Thomas  v.  Covert,  126  Wis.  599,  3  L.R.A. (N.S.)  908,  105  N.  W.  922.  5  A.  &  E. 
Ann.  Gas.  456,  holding  where  policy  is  payable  to  "legal  heirs"  widow  shares 
equally  with  children  of  decedent. 

Cited  in  notes  (30  L.  R.  A.  596)  on  widow  as  "heir"  within  meaning  of  life 
insurance  policies;  (8  L.R.A.  114)  on  contract  of  mutual  benefit  association; 


243  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  160 

(3  L.R.A.(N.S.)  905)  as  to  who  are  legal  heirs  to  whom  insurance  payable; 
(14  Am.  St.  Rep.  203;  19  Am.  St.  Rep.  788)  on  who  is  entitled  to  insurance 
payable  to  devisees  or  heirs;  (44  Am.  St.  Rep.  404,  407)  on  insurance  payable 
to  '"heirs;"  (52  Am.  St.  Rep.  571')  on  wife  or  widow  as  beneficiary  mutual  or 
membership  life  or  accident  insurance. 

2  L.  R.  A.  164,  JAMES  v.  STEERE,  16  R.  I.  367,  16  Atl.  143. 
Illegal  contracts  and  remedies  on  same. 

Cited  in  footnote  to  Och  v.  Missouri,  K.  &  T.  R.  Co.  36  L.  R.  A.  442,  which 
holds  release  of  carrier  by  injured  woman  while  dazed  and  nervous  from  recent 
shock,  obtained  by  misrepresenting  contents,  which  she  did  not  read,  voidable  only, 
not  void. 

Cited  in  note  (12  L.  R.  A.  122)  on  remedy  of  parties  in  pari  delicto. 
Fiduciary   relation    between   attorney   and   client. 

Cited  in  footnote  to  Elmore  v.  Johnson,  21  L.  R.  A.  366,  which  holds  voidable, 
irrespective  of  fairness,  contract  between  attorney  and  client  pending  litigation 
to  give  part  of  property  involved  as  compensation  for  attorney's  services. 

2  L.  R.  A.  166,  DEWIRE  v.  BOSTON  &  M.  R.  CO.  148  Mass.  343,  19  N.  E.  523. 
AVho  are  passengers. 

Cited  in  Jones  v.  Boston  &  M.  R.  Co.  163  Mass.  246,  39  N.  E.  1019,  holding  one 
with  ticket,  endeavoring  without  knowledge  of  trainmen  to  board  train  where  not 
•customary  to  receive  passengers,  not  passenger;  Chattanooga  R.  &  C.  R.  Co.  v. 
Huggins,  89  Ga.  504,  15  S.  E.  848,  holding  one  in  car  switched,  according  to 
custom,  to  defendant's  connecting  line,  a  passenger,  whether  he  has  ticket  or  not; 
Chicago  &  E.  I.  R.  Co.  v.  Jennings,  190  111.  498,  54  L.  R.  A.  835,  60  N.  E.  818, 
Reversing  89  111.  App.  349  (dissenting  opinion),  majority  holding  one  with 
ticket,  crossing  railroad  tracks  on  public  highway  to  board  train,  not  having 
reached  platform,  not  passenger;  Fitzgibbon  v.  Chicago  £  N.  W.  R.  Co^.  108  Iowa, 
4323,  79  N.  W.  477  (dissenting  opinion),  majority  holding  one  not  an  excursionist, 
knowingly  boarding  special  excursion  train,  not  presumed  to  have  been 
passenger;  Raines  v.  Chesapeake  &  0.  R.  Co.  68  W.  Va.  697,  33  L.R.A.(N.S.)  587, 
70  S.  E.  711,  holding  carrier  not  liable  for  injury  to  prospective  passenger  who 
entered  car  while  train  was  being  made  up,  from  jolt  in  coupling  cars. 

Cited  in  footnotes  to  Woolsey  v.  Chicago,  B.  &  Q.  R.  Co.  25  L.  R.  A.  79,  which 
holds  person  riding  on  freight  locomotive  without  conductor's  consent  not  a  pas- 
senger; Atchison,  T.  &  S.  F.  R.  Co.  v.  Headland,  20  L.  R.  A.  822,  which  holds 
presumption  that  person  on  train  a  passenger  not  applicable  to  caboose  attached 
to  freight  train. 

Cited  in  notes   (7  L.  R.  A.  688)   on  who  are  passengers;    (11  L.  R.  A.  483)   on 
express  company  agents  as  passengers;   (11  L.  R.  A.  486)  on  postal  clerks  as  pas- 
sengers;   (24  L.  R.  A.  522)   on  when  one  who  has  started  for  train  becomes  pas- 
senger;  (12  L.  R.  A.  340)  on  passengers;  stipulation  in  contract  of  carriage. 
Riding  on  car  platform   as  contributory   negligence. 

Cited  in  Kansas  &  A.  V.  R.  Co.  v.  White,  14  C.  C.  A.  484,  32  U.  S.  App.  192. 
67  Fed.  483,  holding  one  injured  standing  on  car  platform  entitled  to  recover  if 
such  negligence  did  not  contribute  to  injury;  Sickles  v.  Missouri,  K.  &  T.  R.  Co. 
13  Tex.  Civ.  App.  436,  35  S.  W.  493,  holding  passenger  may  pass  from  one  car 
to  another,  assuming  ordinary  risks  incident  thereto;  Woods  v.  Southern  P.  Co. 
9  Utah,  153,  33  Pac.  628,  holding  whether  act  of  one  riding  on  car  platform  con- 
tributed to  injury  question  for  jury;  Johnson  v.  Yazoo  &  M.  V.  R.  Co.  94  Miss. 
453,  22  L.R.A.(N.S.)  316,  47  So.  785,  holding  it  not  contributory  negligence  to 
ride  on  vestibuled  platform  of  train  where  injury  is  caused  by  negligence  of 


2  L.R.A.  166]  L.  R.  A.  CASES  AS  AUTHORITIES.  244 

servant  in  creating  dangerous  condition  in  vestibule;  Miller  v.  Chicago,  St.  P. 
M.  &  O.  R.  Co.  135  Wis.  248,  17  L.R.A.(N.S-)  161,  115  X.  W.  794,  128  Am.  St. 
Rep.  1021,  holding  it  contributory  negligence  to  ride  on  platform  of  nonvestibuled 
car  where  sufficient  seats  are  unoccupied  inside,  in  the  night  time  after  or  during 
severe  rainstorm,  the  train  running  very  fast;  Atlantic  Coast  Line  R.  Co.  v.  Cros- 
by, 53  Fla.  420,  43  So.  318,  holding  it  not  negligence  per  se  to  go  upon  platform 
of  car  while  train  is  standing  at  station. 

Cited  in  notes  (34  L.  R.  A.  721)  on  assumption  of  incidental  risk  by  passen- 
ger passing  from  one  car  to  another;  (24  L.  R.  A.  710)  on  liability  of  carrier  for 
injuries  to  passenger  riding  on  platform  of  crowded  train;  (11  L.  R.  A.  130)  on 
contributory  negligence  of  passenger,  defeating  recovery  for  injury;  (22  L.  R.  A_ 
260)  on  right  of  passenger  to  seat. 

2  L.  R.  A.  168,  CHEMICAL  ELECTRIC  LIGHT  &  P.  CO.  v.  HOWARD,  148  Mass. 

352,  20  N.  E.  92. 

•Second  appeal,  150  Mass.  495,  23  N.  E.  317. 
Note  given  for  void  patent. 

Cited  in  Chemical  Electric  Light  &  P.  Co.  v.  Howard,  150  Mass.  497,  23  X.  E. 
317,  holding  note  given  for  patent  warranted  "in  full  force  and  effect,"  but  void 
in  fact,  not  binding;  Clemshire  v.  Boone  County  Bank.  53  Ark.  514,  14  S.  W.  901, 
holding  note  given  for  interest  in  business  valueless,  because  infringing  on  patent 
right,  without  consideration;  Hathorn  v.  Wheelwright,  99  Me.  353,  59  Atl.  517, 
2  A.  &  E.  Ann.  Cas.  428,  holding  note  unenforceable. 

Cited  in  note  (20  L.  R.  A.  605)  on  validity  of  notes  given  for  invalid  patents. 

2  L.  R.  A.  172,  HURLEY  v.  HURLEY,  148  Mass.  444,  19  X.  E.  545. 
Partition,  wlieii  maintainable. 

Cited  in  Wilmot  v.  Lathrop,  67  Vt.  680,  32  Atl.  861,  holding  cotenant  not  con- 
tributing to  redeem  from  tax  sale  cannot  maintain  partition;  O'Brien  v.  Bailey,. 
163  Mass.  326,  39  X.  E.  1109,  holding  partition  cannot  be  had  of  land  in  posses- 
sion of  mortgagee. 

Cited  in  note  (20  L.  R.  A.  627)  on  effect  of  adverse  possession  on  right  to 
partition. 

Distinguished  in  Wettlaufer  v.  Ames,  133  Mich.  207,  103  Am.  St.  Rep.  449,  94 
N.  W.  950,  holding  where  mortgagee  does  not  take  legal  title  to  land  mortgaged, 
tenant  in  common  can  maintain  partition  against  co-tenant  though  latter  has 
redeemed  from  foreclosure  sale  and  former  has  not  paid  nor  tendered  share 
of  its  cost. 
It  itilils  of  cotenaiits  among  themselves. 

Cited  in  Barnes  v.  Boardman,  152  Mass.  393,  9  L.  R.  A.  572,  25  X.  E.  623,  hold- 
ing cotenant  of  reversion,  acquiring  life  estate,  cannot  cut  off  others  by  fore- 
closure of  mortgage  without  giving  opportunity  to  contribute;  Kerse  v.  Miller, 
169  Mass.  47,  47  N.  E.  504,  holding  life  tenant  of  portion  of  mortgaged  estate, 
redeeming  the  whole,  entitled  to  possession  until  repaid  amount  advanced  above 
his  share;  Re  Hagan,  33  Pittsb.  L.  J.  X.  S.  51,  holding  presumption  of  payment 
of  mortgage  owned  by  one  cotenant  does  not  arise  from  lapse  of  time;  Mc- 
Pheeters  v.  Wright,  124  Ind.  576,  9  L.  R.  A.  181.  24  X.  E.  734,  holding  one  cannot 
acquire  title  against  cotenant  at  sale  under  encumbrance  created  by  owner, 
through  whom  both  claim;  Harris  v.  Lloyd.  11  Mont.  401,  28  Am.  St.  Rep.  475, 
28  Pac.  736,  holding  one  cotenant  under  no  obligation  to  disclose  to  others  that 
upon  sale  he  receives  large  amount;  Roll  v.  Everett,  73  X.  J.  Eq.  701,  71  Atl. 
263,  17  A.  &  E.  Ann.  Cas.  1196,  holding  one  tenant  who  discharges  lien  on  com- 
mon property  has  right  to  contribution;  Solis  v.  Williams,  205  Mass.  355,  91 


245  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  175 

N.  E.  148,  holding  that  tenant  in  common  can  redeem  though  upon  redemption 
tax  lien  is  kept  alive  for  his  benefit  until  co-tenants  pay  their  share. 

Cited  in  note  (9  L.  R.  A.  740)  on  right  of  tenant  in  common,  paying  lien,  to 
contribution  among  cotenants. 

2  L.  R.  A.  173,  HARDMAX  v.  BRETT,  37  Fed.  803. 

It  in  In   of  common  carrier  to  recover  for  injury  to  property  in  it*  posses- 
sion. 

Cited  in  Chicago  v.  Pennsylvania  Co.  57  C.  C.  A.  516,  119  Fed.  504,  holding 
common  carrier  may  maintain  action  for  injury  of  cars  of  other  companies  tem- 
porarily in  its  possession;  The  Xonpariel,  149  Fed.  525,  holding  payment  by 
tort-feasor  to  libelant  of  vessel  of  damages  sustained  by  reason  of  injury  bar  to 
further  recovery  arising  out  of  same  cause  of  action. 

2  L.  R.  A.  175,  ANDERSON  v.  APPLETON,  112  N.  Y.  104,  19  N.  E.  427. 
Appealability  of  order. 

Cited  in  Birge  v.  Berlin  Iron  Bridge  Co.  133  N.  Y.  483,  31  N.  E.  609,  holding 
order  vacating  injunction  because  plaintiff  not  entitled  to  sue,  reviewable; 
Schneider  v.  Rochester,  155  N.  Y.  621,  50  N.  E.  291,  and  Kreizer  v.  Allaire,  16 
Misc.  7,  37  N.  Y.  Supp.  687,  holding  order  which  fails  to  state  ground  on  which  it 
was  determined  not  appealable;  St.  John  v.  Andrews  Institute,  192  N.  Y.  389,  85 
N.  E.  143,  on  rights  of  nonappealing  next  of  kin  on  reversal  of  judgment  con- 
struing wilL 
Jurisdiction  of  equity  to  construe,  establish,  or  invalidate  v.  i  I!-. 

Cited  in  Hemmje  v.  Meinen,  20  N.  Y.  Supp.  621 ;  Whitney  v.  Whitney,  6.3  Hun, 
70,  18  N.  Y.  Supp.  3 ;  Bradhurst  v.  Field,  32  N.  Y.  S.  R.  432,  10  N.  Y.  Supp.  454, 
— holding  power  of  equity  to  construe  wills  results  from  its  jurisdiction  over 
trusts;  Adams  v.  Becker,  28  N.  Y.  S.  R.  912,  8  N.  Y.  Supp.  261,  holding  action 
to  construe  will  does  not  lie  unless  construction  necessary;  Benner  v.  Benner, 
35  N.  Y.  S.  R.  604,  12  N.  Y.  Supp.  474,  holding  action  to  construe  will  should  be 
brought  by  all  the  executors;  Mellen  v.  Mellen,  139  N.  Y.  218,  34  N.  E.  925, 
holding  grantee  of  testator  cannot  sue  to  construe  will;  Anderson  v.  Carr,  65 
Hun,  180,  19  N.  Y.  Supp.  992.  holding  equity  without  jurisdiction  to  establish 
will;  Nelson  v.  McDonald,  61  Hun.  409,  16  N.  Y.  Supp.  273,  holding  action  to 
correct  mistake  of  decedent  in  signing  wrong  will  not  maintainable;  Delabarre 
v.  McAlpin,  71  App.  Div.  593,  76  N.  Y.  Supp.  301,  holding  supreme  court  will 
not  determine  which  of  two  wills  should  be  probated;  Kalish  v.  Kalish,  166 
N.  Y.  371,  59  N.  E.  917,  sustaining  jurisdiction  of  suit  to  invalidate  will 
involving  trust;  Thomas  v.  Thomas,  9  App.  Div.  489,  41  N.  Y.  Supp.  276,  and 
Wallace  v.  Payne.  14  App.  Div.  600,  43  N.  Y.  Supp.  1119,  holding  heir  at  law 
may  sue  to  set  aside  fraudulent  will ;  Cobb  v.  Hanford,  88  Hun,  24,  34  N.  Y.  Supp. 
511,  sustaining  jurisdiction  of  suit  to  enjoin  probate  of  will  made  in  violation 
of  a  promise;  Long  v.  Rodgers,  79  Hun,  443,  29  N.  Y.  Supp.  981,  holding  next 
of  kin  cannot  sue  to  invalidate  probate  after  one  year;  Higgins  v.  Union  Trust 
Co.  32  N.  Y.  S.  R.  197,  10  N.  Y.  Supp.  389.  holding  heirs  at  law  cannot  sue  to 
construe  will  for  purpose  of  invalidating  it;  Jones  v.  Richards,  24  Misc.  627, 
54  N.  Y.  Supp.  126,  and  Kalish  v.  Kalish,  45  App.  Div.  530,  61  N.  Y.  Supp.  448, 
holding  heir  at  law  cannot  sue  to  invalidate  trust  in  will ;  Davis  v.  Tremain,  69 
}Iisc.  124.  126  N.  Y.  Supp.  43;  Tonnele  v.  Wetmore,  195  N.  Y.  442.  88  N.  E.  1068,— 
holding  Supreme  Court  has  jurisdiction  to  entertain  action  by  executor,  trustee 
or  cestui  que  trust  to  construe  doubtful  or  disputed  trust  clause  in  will;  Tonnele 
v.  Wetmore,  124  App.  Div.  694,  309  N.  Y.  Supp.  349,  holding  court  of  equity 
has  no  jurisdiction  of  proceeding  to  construe  will  leaving  real  property  in  trust 


2  L.R.A.  175]  L.  R.  A.  CASES  AS  AUTHORITIES.  24$ 

where  sole  purpose  of  action  is  to  overthrow  trust  as  violative  of  statute  against 
perpetuities;  Higgins  v.  Downs,  101  App.  Div.  124,  91  N.  Y.  Supp.  937,  holding 
judgment  creditor  of  beneficiary  under  will  cannot,  under  statute  authorizing 
action  to  determine  validity,  construction  or  effect  of  testamentary  disposition 
of  realty,  maintain  action  to  determine  estate  of  beneficiary;  Monypeny  v.  Mony- 
peny,  131  App.  Div.  274,  115  N.  Y.  Supp.  804,  holding  court  has  no  jurisdiction 
to  test  general  construction  of  will  or  its  effect  on  trust  estate  created  in 
neighboring  jurisdiction;  Dixon  v.  Cozine,  64  Misc.  604,  118  N.  Y.  Supp.  615, 
holding  Supreme  Court  has  no  jurisdiction  to  determine  validity  of  will  where 
Surrogate  Court  has  refused  it  admission  to  probate;  Voshall  v.  Clark,  123  App. 
Div.  139,  103  N.  Y.  Supp.  313,  holding  court  of  equity  has  no  inherent  power 
to  construe  devise  and  authority  belongs  incidentally  to  jurisdiction  over  trusts; 
Higgins  v.  Downs,  34  N.  Y.  Civ.  Proc.  Rep.  90,  91  N.  Y.  Supp.  937,  on  extent  of 
equitable  jurisdiction  in  construction  of  wills. 

Cited  in  notes  (10  L.R.A.  766)  on  jurisdiction  of  suit  for  construction  of  will; 
(129  Am.  St.  Rep.  88)  on  jurisdiction  of  equity  to  construe  will. 

Distinguished  in  Long  v.  Rogers,  24  X.  Y.  Civ.  Proc.  Rep.  66,  29  X.  W.  Supp. 
981,  holding  under  statute  next  of  kin  can  maintain  action  to  determine  validity 
of  will. 
Jurisdiction  of  equity  over  settlement  of  estates. 

Cited  in  Weston  v.  Goodrich,  86  Hun,  196,  33  X.  Y.  Supp.  382,  holding  equity 
has  concurrent  jurisdiction  to  settle  estates;  Morse  v.  Smith,  42  X.  Y.  S.  R. 
170,  17  X.  Y.  Supp.  386,  holding  action  to  compel  delivery  to  and  inventory  of 
property  by  executor  not  maintainable;  Sanders  v.  Soutter,  126  X.  Y.  200,  27 
X.  E.  263,  refusing  to  entertain  action  for  executor's  accounting;  Steinway  v. 
Von  Bernuth,  59  App.  Div.  269,  69  X.  Y.  Supp.  1146  (dissenting  opinion), 
majority  sustaining  jurisdiction  of  executor's  accounting;  Re  Smith,  120  App. 
Div.  200,  105  X.  Y.  Supp.  223,  holding  Supreme  Court  will  not  exercise  equitable 
powers  to  entertain  action  for  accounting,  where  complete  relief  can  be  obtained 
in  Surrogate  Court. 

Cited  in  not*  (3  L.  R.  A.  813)  on  jurisdiction  of  surrogate  court  as  to  account- 
ing and  distribution  of  estate. 
Repeal  of  statute. 

Cited  in  Stack  v.  Brooklyn,  150  X.  Y.  345,  44  X.  E.  1030;  Quinlan  v.  Welch, 
141  X.  Y.  163,  36  X.  E.  12;  Gabel  v.  Williams,  39  Misc.  496,  80  X.  Y.  Supp. 
489;  People  ex  rel.  Ellett  v.  O'Grady,  46  App.  Div.  215,  61  X.  Y.  Supp.  577, 
—  holding  repeal  by  implication  depends  on  legislative  intent ;  People  ex  rel. 
Fleming  v.  Dalton,  24  Misc.  90,  53  X.  Y.  Supp.  291,  holding  general  statute 
regarding  tenure  of  office  abrogates  provisions  of  city  charter;  Buffalo  v.  Xeal, 
86  Hun,  83,  33  X.  Y.  Supp.  346,  holding  repugnant  general  act  repeals  prior  local 
act;  Cromwell  v.  MacLean,  123  X.  Y.  485,  25  X.  E.  932,  holding  prior  statute 
repealed  by  subsequent  act  introducing  new  system;  Opinion  of  the  Justices, 
66  X.  H.  668,  33  Atl.  1076,  holding  prior  act  repealed  by  later  act  revising  whole 
subject-matter;  Wallace  v.  Payne,  9  App.  Div.  35,  41  X.  Y.  Supp.  Ill,  holding 
that  Laws  1853,  chap.  238,  and  Laws  1870,  chap.  316,  have  been  repealed;  Colby 
v.  Colby,  81  Hun,  223,  30  X.  Y.  Supp.  677,  holding  Laws  1879,  chap.  316,  repealed; 
Casterton  v.  Vienna,  17  App.  Div.  109,  note,  44  X.  Y.  Supp.  868  (dissenting 
opinion),  majority  holding  special  act  not  repealed  by  general  statute;  Gabel 
v.  Williams,  39  Misc.  496,  80  X.  Y.  Supp.  489,  holding  provisions  of  prior  statute 
not  repealed  by  repugnant  provisions  of  later  statute,  where  expressly  excepted 
therefrom;  Colby  v.  Colby,  24  X.  Y.  Civ.  Proc.  Rep.  150,  30  X.  Y.  Supp.  677, 
on  repeal  of  statute  as  to  proper  person  to  apply  for  establishment  of  will;  Heal 


247  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  183 

v.  Richmond   County   Sav.  Bank,   127   App.  Div.  431,   111   N.  Y.   Supp.   602,  on 
repeal  of  statute  by  inference  where  such  is  its  legal  effect. 

2  L.  R.  A.  180,  PEOPLE  ex  rel.  UNION  INS.  CO.  v.  NASH,  111  N.  Y.  310, 

7  Am.  St.  Rep.  747,  18  N.  E.  630. 
Effect  of  agreement  to  arbitrate. 

Cited  in  New  York,  Lumber  &  W.  Working  Co.  v.  Schnieder,  119  N.  Y.  478, 
24  N.  E.  4,  holding  arbitrament  binding;  Sartwell  v.  Sowles,  72  Vt.  277,  82  Am. 
St.  Rep.  943,  48  Atl.  11,  holding  submission  to  arbitration  no  bar  to  action  after 
revocation;  New  Jersey  &  P.  Concentrating  Works  v.  Ackermann,  15  Misc.  609, 
37  N.  Y.  Supp.  489,  holding  provision  in  employer's  liability  policy  limiting 
right  of  action  to  one  defendant  unenforceable;  Atterbury  v.  Columbia  College, 
66  Misc.  275,  123  N.  Y.  Supp.  25,  holding  in  revocable  arbitration  neither  party 
has  power  to  withdraw  after  allegations  and  proofs  have  been  made  and  matter 
finally  submitted;  Thomas  W.  Finucane  Co.  v.  Board  of  Education,  190  N.  Y. 
83,  82  N.  E.  737,  holding  agreement,  that  arbitrators  shall  be  appointed  in  case 
of  controversy,  is  subject  to  revocation  at  any  time  before  final  submission;  Piz- 
zini  v.  Hutchins,  70  Misc.  95,  127  N.  Y.  Supp.  1043,  holding  that  submission  to 
arbitration  is  not  revocable  after  matter  is  submitted  to  arbitrators  for  their 
decision. 

Cited  in  footnote  to  Union  Ins.  Co.  v.  Central  Trust  Co.  44  L.  R.  A.  227,  which 
holds  deposit  to  secure  payment  of  award  forfeited  on  revocation  of  arbitration. 

Cited  in  notes  (10  L.  R.  A.  560)  on  fire  insurance;  revocation  of  submission 
to  arbitration;  (11  L.R.A.  623)  on  arbitration  and  award;  (138  Am.  St.  Rep. 
643,  644,  649)  on  revocation  of  agreement  to  arbitrate;  (43  L.  ed.  U.  S.  118) 
on  arbitration  proceedings. 

2  L.  R.  A.  183,  KERNOCHAN  v.  MURRAY,  111  N.  Y.  306,  7  Am.  St.  Rep.  744, 

18  N.  E.  868. 
Effect  on  contract  of  death  of  contracting:  party. 

Cited  in  Brown  v.  Cushman,  173  Mass.  370,  53  N.  E.  860.  holding  contract  to 
manufacture,  requiring  personal  supervision,  terminated  by  death;  Chamberlain 
v.  Dunlop,  126  N.  Y.  52,  22  Am.  St.  Rep.  807,  26  N.  E.  966,  holding  contract  in 
lease  to  rebuild  binds  executor;  Drummond  v.  Crane,  159  Mass.  579,  23  L.  R.  A. 
714,  38  Am.  St.  Rep.  460,  35  N.  E.  90,  holding  obligation  to  take  water  for  certain 
time  survived  to  administrator;  Kernochan  v.  Murray,  53  Hun,  51,  5  N.  Y.  Supp. 
869,  holding  guaranty  not  terminated  by  death  of  person  to  whom  it  ran; 
Williams  v.  Williams,  35  N.  Y.  S.  R.  201,  12  N.  Y.  Supp.  601,  sustaining  action 
against  administratrix  of  copartner  upon  agreement  of  dissolution;  Matteson  v. 
Dent,  17G  U.  S.  528,  44  L.  ed.  574,  20  Sup.  Ct.  Rep.  419,  holding  allottees  of 
deceased  holder  of  bank  stock  liable  to  assessment  for  debts  of  insolvent  corpora- 
tion; Wattengel  v.  Schultz,  11  Misc.  168,  32  N.  Y.  Supp.  91,  holding  insurance 
policies  were  presumptively  taken  out  by  administratrix  to  execute  covenant  of 
deceased;  Barrett  v.  Towne,  196  Mass.  489,  13  L.R.A.(N.S.)  644,  82  N.  E.  698, 
holding  contract  terminated  where  performance  depended  entirely  on  personal 
efforts  of  decedent;  Barnes  v.  King,  129  App.  Div.  195,  113  N.  Y.  Supp.  325, 
holding  in  absence  of  express  words  there  is  presumption  of  law  parties  to  con- 
tract intend  to  bind  themselves  and  personal  representatives. 

Cited  in  notes  (22  Am.  St.  Rep.  811,  813,  814)  on  enforceability  of  contract 
after  contractor's  death;  (2  Brit.  Rul.  Cas.  939)  on  is  liability  of  guarantor  or 
surety  determined  by  his  death;  (21  Eng.  Rul.  Cas.  670)  on  death  as  revocation  of 
contract  of  suretyship  or  guaranty. 


2  L.R.A.  183]  L.  K.  A.  CASES  AS  AUTHORITIES.  248 

Primary  or  secondary  responsibility. 

Cited  in  Wysong  v.  Meyer,  58  App.  Div.  426,  69  N.  Y.  Supp.  286,  holding  bond 
to  procure  discontinuance  of  foreclosure  primary  obligation;  Pittsburgh,  C.  C. 
&  St.  L.  R.  Co.  v.  Keokuk  &  H.  Bridge  Co.  46  C.  C.  A.  645,  107  Fed.  788,  holding 
railroads  not  discharged  by  change  in  contract  with  bridge  company  on  ground 
that  they  were  guarantors  or  sureties  for  its  bonds;  De  Remer  v.  Brown,  165 
N.  Y.  419,  59  N.  E.  129,  holding  agent  contracting  in  own  name  personally  bound. 

Cited  in  footnote  to  Staver  &  Walker  v.  Locke,  17  L.  R.  A.  652,  which  holds 
payment  of  notes  taken  by  agent  for  goods  sold  not  covered  by  guaranty  of  full 
performance  of  agent's  engagements. 

Cited  in  notes  (6  L.R.A.  383;  8  L.R.A.  381)  on  contract  of  guaranty;  (39 
L.R.A.  (N.S.)  726)  as  to  when  a  guaranty  is  continuing. 

2  L.  R.  A.  185,  WIGHTMAN  v.  CHICAGO  &  X.  W.  R.  CO.  73  Wis.  169,  9  Am.  St. 

Rep.  778,  40  N.  W.  689. 
Refusal  to  receive  verdict. 

Cited  in  Sherman  v.  Menominee  River  Lumber  Co.  77  Wis.  21,  45  N.  W.  1079, 
holding  court  may  decline  to  receive  special  verdict,  and  direct  further  con- 
sultation; State  Life  Ins.  Co.  v.  Postal,  43  Ind.  App.  149,  84  N.  E.  156,  holding 
where  'before  jury  has  left  box  and  before  verdict  is  fully  received  and  recorded, 
jury  can  be  sent  back  for  further  deliberation  on  disclosure  that  verdict  does 
not  meet  approval  of  entire  panel. 

Distinguished  in  Koch  v.  State,  126  Wia.  479,  3  L.R.A.  (N.S.)   1090..  106  N.  W. 
531,  5  A.  &  E.  Ann.  Cas.  389,  holding  where  jury  has  returned  sealed  verdict  into 
court,  and  separated,  which  verdict  was  a  nullity,  court  could  not  permit  amend- 
ment thereof  to  make  valid  verdict. 
Railroads,  liability  in  respect  to  tickets. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Rather,  3  Tex.  Civ.  App.  78,  21  S.  W.  951, 
holding,  passenger  entitled  to  stand  on  contract  as  made,  although  not  contained 
in  ticket  through  fault  of  agent;  Pennsylvania  Co.  v.  Bray,  125  Ind.  237,  25 
N.  E.  439;  and  Northern  P.  R.  Co.  v.  Pauson,  30  L.  R.  A.  733,  17  C.  C.  A.  291, 
44  U.  S.  App.  178,  70  Fed.  589,  holding  passenger's  failure  to  have  return  coupon 
stamped  does  not  deprive  him  of  right  to  return  passage,  when  he  has  done  all  he 
could  to  get  it  stamped;  Gulf,  C.  &  S.  F.  R,  Co.  v.  Wright,  2  Tex.  Civ.  App.  469, 
21  S.  W.  399,  holding  railroad  responsible  for  wrongful  act  of  agent  in  unreason- 
ably limiting  time  for  return  trip;  Missouri  P.  R.  Co.  v.  Martino,  2  Tex.  Civ. 
App.  642,  18  S.  W.  1066,  holding  right  to  transportation  not  lost  by  agent  re- 
fus'ing  to  sign  and  stamp  return  ticket;  Fairfield  v.  Louisville  &  X.  R.  Co.  94 
Miss.  892,  48  So.  513,  holding  ticket  valid,  although  it  read  "void  if  detached" 
where  detachment  was  by  inadvertence  and  both  book  and  ticket  are  presented 
and  on  inspection  they  are  shown  to  correspond;  Young  v.  Central  R.  Co.  120  Ga. 
27,  65  L.R.A.  436,  102  Am.  St.  Rep.  68,  47  S.  E.  556,  1  A.  &  E.  Ann.  Cas.  24, 
holding  ticket  valid,  as  against  stipulation  on  its  face  against  mutilation,  al- 
though it  is  torn  in  two  pieces,  when  both  pieces  are  presented  at  same  time 
and  it  is  apparent  they  are  parts  of  same  ticket  and  form  entire  ticket. 

Cited  in  footnote  to  Watson  v.  Louisville  &  N.  R.  Co.  49  L.  R.  A.  454,  which 
holds  condition  requiring  return  coupon  of  round-trip  ticket  to  be  stamped  rea- 
sonable. 

Cited  in  notes  (12  L.  R.  A.  340)  on  effect  of  stipulation  in  contract  of  carriage; 
(15  L.  R.  A.  817)  on  right  of  railroad  company  to  charge  additional  fare  for 
neglect  to  procure  ticket;  (9  L:  R.  A.  688)  on  expulsion  of  passenger  from  train 
for  want  of  ticket;  (61  Am.  St.  Rep.  102)  on  right  to  transportation  of  holders 
of  certain  tickets. 


249  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  188 

Distinguished  in  Anderson  v.  Union  Traction  Co.  7  Pa.  Dist.  R.  43,  4  Lack. 
Legal  Xews,  10,  holding  street  railway  not  responsible  for  error  of  conductor  in 
issue  of  transfer  ticket. 

1  )ji  in  :i  i-.  «•-. For  ejection  of  passenger. 

Cited  in  Phettiplace  v.  Northern  P.  R.  Co.  84  Wis.  418,  20  L.  R.  A.  487,  54 
X.  YV.  1092,  holding  verdict  of  $300  for  injury  similar  to  that  in  principal  case 
not  excessive. 
For  injury  to  feeling's. 

Cited  in  Reinke  v.  Bentley,  90  Wis.  459,  63  N.  W.  1055,  holding  recovery  for 
physical  pain  and  suffering  and  mental  suffering  proper  in  action  for  personal 
injury. 

Distinguished  in  Summerfield  v.  Western  U.  Teleg.  Co.  87  Wis.  12,  41  Am.  St. 
Rep.  17,  57  N.  W.  973,  holding  mental  anguish  alone,  from  delay  of  telegram, 
not  independent  basis  for  compensatory  damages. 

2  L.   R.   A.   188,   CASS   COUNTY  v.   CHICAGO,  B.  &  Q.  R.   CO.   25   Neb.  348r 

41   N.  W.  246. 

Cited  in  Chicago,  B.  &  Q.  R.  Co.  v.  Cass  County,  72  Neb.  490,  117  Am.  St. 
Rep.   806,   101   N.   W.   11,   as   to   previous   litigation   involving  similar  question, 
but  held  not  to  be  res  adjudicata. 
\Vlieii  property  taxable. 

Followed  without  discussion  in  Chicago,  B.  &  Q.  R.  Co.  v.  School  Dist.  No.  1, 
25  Xeb.  359,  41  N.  W.  249. 

Cited  in  Chicago,  B.  &  Q.  R.  Co.  v.  Nebraska  City,  53  Neb.  454,  73  N.  W.  952, 
holding  railroad  bridge  not  within  city  limits  cannot  be  taxed  by  city;  Cowen  v. 
Aldridge,  51  C.  C.  A.  676,  114  Fed.  50,  holding  railroad  bridge  a  structure  to- 
be  taxed  locally. 

Cited  in  footnotes  to  State  v.  Virginia  &  T.  R.  Co.  35  L.R.A.  759,  which  holds 
earning  capacity  of  railroad  main  consideration  in  determining  taxable  valuer. 
Knoxville  &  0.  R.  Co.  v.  Harris,  53  L.  R.  A.  921,  which  holds  exemption  from 
privilege  tax  not  included  in  exemption  from  ad  valorem  tax;  Cleveland,  C.  C. 
&  St.  L.  R.  Co.  v.  Backus,  18  L.  R.  A.  729,  which  holds  state  tax  on  railroad 
track  within  state  and  proportionate  part  of  its  rolling  stock  not  tax  on  inter- 
state commerce. 

Cited  in  note  (29  L.  R.  A.  71)  on  jurisdiction  as  to  taxation  of  bridge  over 
river  forming  boundary  of  state  or  its  divisions. 

Overruled  in  Chicago,  B.  &  Q.  R.  Co.  v.  Richardson  County,  61  Neb.  525,  85 
N.  W.  532,  holding  railroad  bridge  part  of  its  continuous  line,  taxable  by  state 
board  only. 
Statute  of  limitations  on  note  depending  on  bridge  completion. 

Cited  in  Garner  v.  Hall,   122  Ala.  230,  25  So.   187,  holding  bridge  not  com- 
pleted, so  that  statute  of  limitations  ran  against  note  depending  upon  completion 
of  railroad. 
What  included  in  roadbed  of  railroad. 

Cited  in  Standard  Ins.  Co.  v.  Langston,  60  Ark.  386,  30  S.  W.  427,  holding 
roadbed,  in  an  accident  insurance  policy,  does  not  include  ends  of  ties  of  unusual 
length;  Skiles  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  130  Mo.  App.  168,  108  S.  W.  1082, 
holding  it  does  not  include  track  and  ties. 

Distinguished  in  Board  of  Equalization  v.  Louisville  &  X.  R.  Co.  139  Ky.  393, 
109  S.  W.  303,  holding  railroad  bridge  "railroad  property"  within  tax  act, 
though  also  used  by  street  cars,  teams  and  pedestrians. 


2  L.R.A.  188]  L.  R.  A.  CASES  AS  AUTHORITIES.  250 

Obstruction  to  navigation. 

Cited  in  note  (59  L.  R.  A.  36)  on  right  to  obstruct  or  destroy  rights  of  navi- 
gation. 

2  L.  R.  A.  192,  MUIILMAN  v.  UNION  P.  R.  CO.  37  Fed.  189. 
\VIio  tire  fellow  servants. 

Cited  in  Borgman  v.  Omaha  &  St.  L.  R.  Co.  41  Fed.  668,  holding  foreman  in 
charge  of,  and  having  entire  control  of,  all  wrecking  gangs,  vice  principal;  Brown 
v.  Pennsylvania  R.  Co.  142  Fed.  910,  holding  allegation  of  negligent  running  of 
engine  into  line  of  cars  on  which  plaintiff  was  working  without  allegation  of 
who  committed  negligent  act,  insufficient. 

Cited  in  footnotes  to  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Rice,  4  L.  R.  A.  173,  which 
holds  yard  inspector  and  yard  foreman  fellow  servants;  Fagundes  v.  Central 
Pacific  R.  Co.  3  L.  R.  A.  824,  which  holds  laborer  removing  snow  from  track 
fellow  servant  of  track  walker  and  conductor;  Elliot  v.  Chicago,  M.  &  St.  P. 
E.  Co.  3  L.  R.  A.  363,  which  holds  section  foreman  and  freight  conductor  fellow 
servants;  Louisville  &  N.  R.  Co.  v.  Martin,  3  L.  R.  A.  282,  which  holds  brakeman 
fellow  servant  of  engineer;  Daniel  v.  Chesapeake  &  O.  R.  Co.  16  L.  R.  A.  383, 
which  holds  conductor  and  brakeman  on  different  trains  not  fellow  servants ; 
Fisher  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  16  L.  R.  A.  519.  which  holds  section 
foreman  and  conductor  not  fellow  servants;  Palmer  v.  Michigan  C.  R.  Co.  17 
L.  R.  A.  637,  which  holds  assistant  road  master  not  fellow  servant  of  gang  of 
men  working  under  him;  Clarke  v.  Pennsylvania  Co.  17  L.  R.  A.  811.  which  holds 
section  boss  of  one  gang  and  member  of  another  gang  fellow  servants;  Baltimore 
&  0.  R.  Co.  v.  Andrews,  17  L.  R.  A.  190,  which  holds  conductor  and  engineer 
fellow  servants  of  brakeman  on  other  train.  , 

Cited  in  notes  (4  L.  R,  A.  795)  on  master  and  servant;  fellow  servants,  who  are ; 
(7  L.  R.  A.  503)  on  master  liable  for  acts  of  agent  or  representative;  (51  L.  T!. 
A.  576)  on  limits  of  departmental  control  in  vice  principalship  considered  with 
reference  to  the  superior  rank  of  a  negligent  servant;  (8  L.  R.  A.  818)  on  vice 
principals  and  agents;  (6  L.  R.  A.  585)  on  employee  not  assuming  risk  of  master1- 
representative;  (3  L.  R.  A.  560)  on  master  not  liable  for  negligence  of  fellow 
servant;  (4  L.  R.  A.  852)  on  liability  of  master  in  case  of  contributing  agencies. 

2  L.  R.  A.  193,  Re  PIFFARD,  111  N.  Y.  410,  18  N.  E.  718. 
Power  of  appointment  In  will. 

Cited  in  Condit  v.  De  Hart,  62  N.  J.  L.  81,  40  Atl.  776,  holding  will  of  ?on  with 
power  of  appointment  should  be  referred  to  in  carrying  out  father's  will. 
Parts  of  -will    wy  reference. 

Cited  in  Schillinger  v.  Bawek,  135  Iowa,  138,  112  N.  W.  210,  holding  testa- 
mentary deeds,  properly  executed  and  duly  witnessed  and  so  far  referred  to  in 
will  as  to  make  them  part  and  parcel  thereof,  form  part  of  will. 

2  L.  R.  A.   195,  RAILROAD  COMRS.  v.  OREGON  R.  &  NAV.   CO.   17  Or.   65. 

19  Pac.  702. 
Governmental  regulation  of  railroads. 

Cited  in  State  v.  Rogers,  22  Or.  357,  30  Pac.  74,  holding  indictment  under 
railroad  rate  act  quashed  by  repeal  of  act  during  pendency  of  prosecution;  Gulf 
&  Ship  Island  R.  Co.  v.  Mississippi  R.  Commission,  94  Miss.  135,  49  So.  118, 
denying  power  of  commission  to  compel  railroads  to  stop  trains  at  intersection 
of  another  road,  not  within  limits  of  city,  at  which  intersection  it  had  no  depot, 
under  statute  authorizing  compulsion  of  stops  within  city  at  points  other  than 
at  depots,  where  convenience  of  passengers  required;  State  ex  rel.  La  Follette 


251  L.  R.  A.  CASES  AS  AUTHORITIES.  £2  L.R.A.  203 

v.  Chicago,  M.  &  St.  P.  R.  Co.  16  S.  D.  524,  94  N.  W.  406,  holding  order  by  railroad 
commissioners,  under  statute  providing  for  compulsory  connection  of  tracks  by 
intersecting  roads  on  commissioners'  order,  that  certain  roads  so  unite  and 
connect  tracks  as  to  permit  transfer  of  cars  from  one  road  to  another  too  indefi- 
nite to  be  enforced  by  mandamus. 

Cited  in  footnote  to  State  ex  rel.  Tompkins  v.  Chicago,  St.  P.  M.  &  0.  R.  Co. 
47  L.  R.  A.  569,  which  sustains  railroad  commissioner's  authority  to  require 
tuilding  of  depot. 

2  L.  R.  A.  199,  PITTSBURG,  C.  &  ST.  L.  R.  CO.  v.  BOSWORTH,  46  Ohio  St.  81, 

18  N.  E.  533. 
It  iuliiN    rii  11  ii  i  111;    with   land. 

Cited  in  Jones  Fertilizing  Co.  v.  Chicago,  C.  C.  &  St.  L.  R.  Co.  7  Ohio  N.  P. 
251,  holding  right  to  crossing,  in  agreement  with  railroad,  runs  with  land; 
American  Strawboard  Co.  v.  Haldeman  Paper  Co.  27  C.  C.  A.  640,  54  U.  S.  App. 
416,  83  Fed.  624,  holding  restriction  on  use  of  leased  land  for  a  particular  busi- 
ness attaches  to  and  runs  with  leasehold;  Sexauer  v.  Wilson,  136  Iowa,  363, 
14  L.R.A.(N.S.)  193,  113  X.  W.  941,  15  A.  &  E.  Ann.  Cas.  54,  holding  covenant 
to  maintain  division  fence  may  appropriately  be  subject  of  covenant  running  with 
land. 

Cited  in  footnotes  to  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes 
as  running  with  the  land  agreement  for  party  wall,  expressly  declared  to  run 
with  land;  Mygatt  v.  Coe,  11  L.  R.  A.  646,  which  holds  covenants  of  warranty 
and  quiet  enjoyment  by  owner  and  husband  do  not  run  with  land  as  against 
husband;  Bald  Eagle  Valley  R.  Co.  v.  Nittany  Valley  R.  Co.  29  L.  R.  A.  423, 
-which  holds  intention  of  parties  controlling  in  determining  whether  covenant 
runs  with  land;  Brown  v.  Southern  P.  Co.  47  L.  B.  A.  409,  which  holds  cove- 
nant by  grantors  for  railroad  to  build  fences  or  not  hold  company  for  injury  to 
stock  personal  only. 

Cited  in  note    (14  L.R.A.  (X.S.)   187)   on  necessity  of  word  "assigns"  to  make 
covenant  as  to  thing  not  in  esse  run  with  land. 
Constructive  notice. 

Cited  in  Kuebler  v.  Cleveland  Short  Line  R.  Co.  10  Ohio  N.  P.  X.  S.  389,  20 
Ohio  S.  &  C.  P.  Dec.  525,  holding  that  restrictive  covenant  appearing  in  chain 
of  title  is  constructive  notice  of  such  restriction. 

Cited  in  footnotes  to  Rock  Island  &  P.  R.  Co.  v.  Dimick,  19  L.  R.  A.  105,  which 
holds  open  and  exclusive  possession  of  passageway  through  railroad  embankment 
notice  of  rights  to  purchaser  of  railroad ;  Brinser  v.  Anderson,  6  L.  R.  A.  205, 
which  holds  purchaser  required  to  inquire  into  rights  of  possessor,  though  he 
knows  of  lease  to  him. 

Cited  in  notes    (8  L.R.A.  211)    on  title  to  land;   constructive  notice  by  pos- 
session;   (13  L.R.A. (X.S.)   76)   on  possession  of  land  as  notice  of  title. 
Enforcement   of   restrictive   covenants. 

Annotation  cited  in  Greensboro  Ferry  Co.  v.  Xew  Geneva  Ferry  Co.  34  Pa.  Co. 
Ct.  37,  on  jurisdiction  of  court  of  equity  to  restrain  breach  of  covenant. 

2  L.  E.  A.  203,  WARREX  v.  BOARD  OF  REGISTRATION,  72  Mich.  398,  40 

N.  W.  553. 
Effect   of   residence   on    elective   franchise. 

Cited  in  Beecher  v.  Detroit,  114  Mich.  230,  72  N.  W.  206,  holding  temporary 
abode  not  establishment  or  residence;  Powell  v.  Spackman,  7  Idaho,  717,  54 
L.  R.  A.  :?>7.  05  Pac.  503  (dissenting  opinion),  majority  holding  inmate  of 
.soldiers'  home  gains  no  voting  residence  there;  Cover  v.  Hatten,  136  Iowa,  65, 


2  L.R.A.  203]  L.  K.  A.  CASES  AS  AUTHORITIES.  252: 

113   N.   W.   470,   holding   where   one  has   acquired   residence,   it   is   presumed   to- 
continue  until  he  acquires  another. 

Cited  in  notes  (23  L.  R.  A.  216)  on  acquiring  residence  as  a  voter  while  attend- 
ing school  or  public  institution;  (12  L.  R.  A.  364)  on  state  citizenship. 

Distinguished  in  Wolcott  v.  Holcomb,  97  Mich.  368,  23  L.  R.  A.  219,  56  N.  W. 
837,  holding  residence  of  elector  not  changed  by  presence  and  support  in  soldiers' 
home;  State  v.  Savre,  129  Iowa,  128,  3  L.R.A.  (N.S.)  458,  113  Am.  St.  Rep.  452r 
105  N.  W.  387,  holding  under  statute  place  where  voter  rooms  and  sleeps  is  his- 
residence. 
Schools. 

Cited  in  note  (13  L.  R.  A.  162)  on  domicil  as  affecting  common- school  priv- 
ileges. 

—  Registration. 

Cited  in  notes  (7  L.  R.  A.  99)  on  rights  of  voters  to  be  registered  for  elections; 
(10  L.  R.  A.  226)   on  election  law;  registration. 
Kffect  of  absence  on   rights  acquired  by  residence. 

Cited  in  Humphrey  v.  Humphrey,  115   Mo.  App.  364,  91   S.  W.  405,  holding- 
mere  temporary  absence  from  city  where  home  is  established,  without  intention 
to  make  home  elsewhere,  did  not  preclude  right  to  maintain  divorce  action. 
Impeachment  of  law  by  legislative  journals. 

Cited  in  Ritchie  v.  Richards,  14  Utah,  353,  47  Pac.  670,  holding  enrolled  bill 
duly  signed,  approved,  and  deposited  unimpeachable. 
Usage  and  custom.    . 

Cited  in  note  (13  L.  R.  A.  438)   on  custon  and  usage  as  law. 

2  L.  R.  A.  206,  LORSCHER  v..  SUPREME  LODGE,  K.  OF  H.  72  Mich.  316,  40 

N.  W.  545. 
Proof  of  death. 

Cited  in  National  Union  v.  Thomas,   10  App.  D.   C.   289,  holding  beneficiary 
under  no  obligation  to  see  that  death  report  required  by  insurance  association 
is  made. 
Contract  of  insurance. 

Cited  in  Wagner  v.  Supreme  Lodge,  K.  &  L.  of  H.  128  Mich.  668,  87  N.  W.  903, 
holding  delivery  of  benefit  certificate  to  subordinate  lodge  completes  the  contract; 
Wood  v.  Brotherhood  of  American  Yeomen,  148  Iowa,  405,  126  X.  W.  949,  hold- 
ing change  of  beneficiaries  effected  by  delivery  of  new  certificate  to  local  lodge ; 
Lathrop  v.  Modern  Woodmen,  56  Or.  449,  109  Pac.  81,  holding  that  delivery  by 
head  camp  of  certificate  to  local  camp  clerk  is  not  delivery  to  applicant,  where 
by-law  provides  that  certificate  shall  not  become  effective  until  delivered  by 
camp  clerk  to  applicant;  Sterling  v.  Woodmen  of  the  World,  28  Utah,  520,  80 
Pac.  375,  holding  contract  not  complete  by  delivery  to  local  lodge  where  con- 
stitution and  application  provide  policy  not  to  become  operative  until  delivery 
to  applicant, 'preceded  by  signature  of  applicant  and  local  head  officer;  Knights 
of  Machabees  v.  Gordon,  83  Ark.  22,  102  S.  W.  711,  holding  parol  contract  valid 
where  agreement  has  been  completed  with  exception  of  issuance  of  certificate  or 
policy. 

Cited  in  footnotes  to  McLendon  v.  Sovereign  Camp  of  Woodmen,  52  L.  R.  A. 
444,  which  holds  reasonable  delay  in  delivering  benefit  certificate  gives  no  right 
to  recover  on  certificate  delivered  after  death  of  insured;  Hicks  v.  British  America 
Assur.  Co.  48  L.  R.  A.  424,  which  holds  rights  of  one  whose  property  destroyed 
after  oral  contract  to  insure  it,  but  before  policy  issued,  subject  to  provisions 


253  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  217 

of  standard  policy  prescribed  by  law;  Summers  v.  Mutual  Life  Ins.  Co.  66  L.R.A. 
812,  which  holds  contract  for  present  insurance  not  made  by  applicant  giving 
note  for  first  premium  in  consideration  that  a  policy  shall  be  issued  where  his 
examination  is  to  be  made  in  future  and  he  expressly  stipulates  that  note  shall 
not  be  negotiated  until  policy  has  been  delivered  and  accepted. 

Cited  in  notes   (9  L.  R.  A.  189)   on  forfeiture  of  benefit  certificate  for  nonpay- 
ment of  assessment;    (8  L.R.A.  114)   on  contract  of  mutual  benefit  association; 
(52  Am.  St.  Rep.  545,  564)  on  mutual  membership  life  or  accident  insurance. 
Admission   of  execution   of   policy. 

Cited  in  Grimme  v.  General  Council,  167  Mich.  248,  132  X.  W.  497,  holding  that 
no  proof  of  execution  of  certificate  of  insurance  attached  to  plaintiff's  declaration 
is  necessary,  where  its  execution  is  not  denied. 

2  L.  R.  A.  212,  LOUISVILLE  ASPHALT  VARNISH  CO.  v.  LORICK,"  29  S.  C. 

533,  8  S.  E.  8. 
Written   evidence   of  contract. 

Cited  in  Atlantic  Phosphate  Co.  v.  Sullivan,  34  S.  C.  309,  13  S.  E.  539,  holding 
terms  of  a  contract  may  be  contained  in  several  instruments  of  writing;  Freeland 
v.  Ritz,  154  Mass.  259,  12  L.  R.  A.  561.  26  Am.  St.  Rep.  244,  28  X.  E.  226,  hold- 
ing parol  evidence  admissible  to  identify  paper  relating  to  contract;  Colleton 
Realty  Co.  v.  Folk,  85  S.  C.  88,  67  S.  E.  156,  holding  that  contract  may  be  proved 
by  letter  of  party  to  be  charged  in  which  he  recites  contract  and  repudiates  it. 
Sufficiency  of  memorandum  under  statute  of  frauds. 

Cited  in  Melchers  v.  Springs,  33  S.  C.  282,  11  S.  E.  788,  holding  private  letter 
of  agent  to  principal  forwarding  order  not  sufficient  to  bind  principal. 

Cited  in  footnotes  to  Freeland  v.  Ritz,  12  L.  R.  A.  561,  which  holds  series  of 
papers,  only  one  of  which  signed,  may  constitute  memorandum ;  White  v.  Breen, 
32  L.  R.  A.  127,  which  authorizes  reading  different  writings  together  as  constituent 
parts  of  memorandum;  Charlton  v.  Columbia  Real  Estate  Co.  69  L.R.A.  394, 
which  holds  statute  of  frauds  satisfied  by  previous  memorandum  of  agreement 
for  lease  and  a  signed  but  undelivered  lease  which  taken  together  show  a  com- 
pleted agreement  upon  the  terms  of  a  lease. 

Cited  in  notes  (11  L.R.A.  143)  on  defective  memorandum  of  contract;  (6  Eng. 
Rul.  Cas.  254)  on  requisites  of  memorandum  required  by  statute  of  frauds. 

2  L.  R.  A.  217,  LEROY  &  W.  R.  CO.  v.  ROSS,  40  Kan.  598,  20  Pac.  197. 

Followed  without  discussion  in  Kansas  City  &  S.  W.  R.  Co.  v.  Baird,  41  Kan. 
71,  21  Pac.  227. 
Condemnation. 

Cited  in  footnote  to  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  14  L.  R.  A.  533, 
which  authorizes  condemnation  of  land  irregularly  entered  upon. 

Cited  in  note   (19  Am.  St.  Rep.  459,  460)   on  condemnation  of  right  of  way 
for  railroad. 
Full  compensation. 

Cited  in  Florence,  E.  D.  &  W.  Valley  R.  Co.  v.  Shepherd,  50  Kan.  440,  31  Pac. 
1002;  Chicago,  K.  &  W.  R.  Co.  v.  Woodward,  47  Kan.  193,  27  Pac.  836;  Kansas 
C.  R.  Co.  v.  Jackson  County,  45  Kan.  719,  26  Pac.  394;  Chicago,  K.  &  W.  R.  Co. 
v.  Emery,  51  Kan.  18,  32  Pac.  631;  Inter-State  Consol.  Rapid  Transit  R.  Co. 
v.  Simpson,  45  Kan.  715,  26  Pac.  393,— holding  owner's  damages  for  right  of 
way  cannot  be  diminished  by  benefits. 

Cited  in  footnotes  to  Schroeder  v.  Joliet,  52  L.  R.  A.  634,  which  authorizes  con- 
sideration of  benefit  from  improvement  in  assessing  damages  from  cutting  down 


2  L.R.A.  217]  L.  R.  A.  CASES  AS  AUTHORITIES.  254 

street;  Beveridge  v.  Lewis,  59  L.  R.  A.  581.  which  denies  right  to  deduct  benefits 
from  damages  in  exercise  of  eminent  domain  by  individual. 

Cited  in  note  (9  L.R.A.(X.S.)  831)  on  right  to  set  off  benefits  against  damages 
on  condemnation. 
Testimony  as  to  value  of,  or  injury  to,  land. 

Cited  in  Ottawa,  O.  C.  &  C.  G.  R.  Co.  v.  Fisher,  42  Kan.  678,  22  Pao.  713, 
holding  farmers  in  vicinity  of  farm,  unacquainted  with  its  market  or  productive 
value,  incompetent  to  testify  as  to  depreciation ;  Kansas  City  &  S.  W.  R.  Co. 
v.  Ehret,  41  Kan.  26,  20  Pac.  538,  holding  farmers  residing  in  vicinity  of  and 
acquainted  with  particular  farm  may  give  opinions  as  to  its  value;  Ottawa, 
O.  C.  &  C.  G.  R,  Co.  v.  Adolph,  41  Kan.  602.  21  Pac.  643,  holding  improper  to 
give  estimate  of  amount  of  damage  to  pasture  and  corrals  injured,  but  not 
destroyed,  by  right  of  way  for  railroads. 

Cited  in  note   (3  L.  R.  A.  83)   on  evidence  of  value  of  land  taken  in  condemna- 
tion proceedings. 
Damage  front  fire. 

Cited  in  Kay  v.  Glade  Creek  &  R.  R.  Co.  47  W.  Va.  475,  35  S.  E.  973,  holding 
danger,  to  affect  damages,  must  be  real  and  imminent. 
Measure  of  damages. 

Cited  in  Chicago,  K.  &  W.  R.  Co.  v.  Brunson,  43  Kan.  374,  23  Pac.  495,  holding 
erroneously  received  testimony  as  to  amount  of  damage  per  acre  harmless,  being 
unobjected  to  as  to  competency;  Leavenworth,  X.  &  S.  R.  Co.  v.  Herley,  45  Ivan. 
536,  26  Pac.  23,  discussing,  but  not  deciding,  whether  witness  can  testify  directly 
as  to  amount  of  damages  sustained;  Chicago,  K.  &  W.  R.  Co.  v.  Parsons,  51  Kan. 
413,  32  Pac.  1083,  holding  measure  of  damages  difference  in  value  of  land  before 
and  after  taking  right  of  wray;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilkinson,  55  Kan. 
85,  39  Pac.  1043,  holding  witness  may  not  state  his  opinion  as  to  damages  to  be 
recovered. 

Cited  in  footnotes  to  Cameron  v.  Pittsburgh  &  L.  E.  R.  Co.  22  L.  R.  A.  443, 
which  holds  farm  not  divided  for  estimation  of  damages  from  construction  of  rail- 
road \)j  previous  condemnation  of  strip  for  canal ;  Becker  v.  Philadelphia  &  R. 
Terminal  R.  Co.  35  L.  R.  A.  583,  which  holds  diminution  in  profits  and  value  of 
merchandise  by  removal  of  business  from  condemnation  of  land  not  element 
of  damages. 

Cited 'in  note  (11  L.  R.  A.  605)  on  market  price  as  an  element  of  damages  in 
condemnation  proceedings. 

2  L.  R.  A.  223,  COM.  ex  rel.  KEELY  v.  PERKINS,  124  Pa.  36,  16  Atl.  525,  528. 
Contempt  of  court. 

Cited  in  Re  Garis,  185  Pa.  501,  39  Atl  1110.  holding  contempt  proceedings 
rest  upon  the  necessity  of  maintaining  dignity  and  authority  of  courts;  Com.  v. 
Green,  185  Pa.  647;  40  Atl.  96,  approving  practice  of  granting  special  writ  of 
certiorari  ancillary  to  habeas  corpus  in  proper  cases;  Tolman  v.  Leonard,  6 
App.  D.  C.  235,  holding  jurisdictional  facts  need  not  be  shown  in  commitment, 
if  disclosed  in  record;  Jack  v.  Twyford,  10  Pa.  Super.  Ct.  481,  holding  court's 
order  to  defendant  to  restore  frame  dwelling  enforceable  by  attachment;  Leslie 
v.  Mahoning  R.  Co.  22  Pa.  Co.  Ct.  301,  holding  court  of  equity,  having  jurisdic- 
tion, can  enforce  by  attachment  its  lawful  orders;  Com.  ex  rel.  Thornley  v. 
Friends'  Home  for  Children,  22  Pa.  Co.  Ct.  62,  7  Pa.  Dist.  R.  653,  holding  it 
duty  of  one  to  whom  writ  of  habeas  corpus  is  issued  to  produce  body  of  person 
detained  if  within  his  power;  State  ex  rel.  Phillips  v.  District  Ct.  98  Minn.  139, 
107  X.  W.  963,  upholding  court's  right  to  punish  for  contempt  of  violating  inter- 


255  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  22S> 

locutory  injunction  against  trespassing  on  land  and  cutting  crops  thereon,  in 
action  for  possession  of  land;  State  ex  rel.  Register  v.  McGahey,  12  N.  D.  547, 
97  N.  W.  865,  1  A.  &  E.  Ann.  Cas.  650,  14  Am.  Grim.  Rep.  283,  holding  resistance 
to  order  which  court  has  no  jurisdiction  to  issue  not  punishable  as  contempt; 
Patterson  v.  Wyoming  Valley  Dist.  Council,  31  Pa.  Super.  Ct.  119,  holding  court 
could  commit  individual  members  of  unincorporated  labor  organization  until 
payment  of  fine  imposed  against  organization ;  Patterson  v.  Building  Trades  Coun- 
cil, 31  Pa.  Co.  Ct.  14,  9  North.  Co.  Rep.  336,  14  Pa.  Dist.  R.  842,  12  Luzerne  Leg. 
Reg.  Rep.  245,  on  distinction  between  contempt  proceedings  intended  to  punish 
offense  against  public  justice  and  those  for  purpose  of  effectuating  decree  for 
benefit  of  private  suitor;  Re  Fleming,  37  Pittsb.  L.  J.  N.  S.  210,  holding  that  at- 
tachment is  well  recognized  means,  not  of  mere  punishment  for  contempt,  but  of 
enforcing  civil  remedies  in  courts  of  equity;  Com.  v.  Klein,  40  Pa.  Super.  Ct. 
360,  on  right  of  court  to  punish  by  imprisonment  for  contempt. 

Cited  in  notes   (8  L.R.A.  588)   on  contempt  of  court  in  presence  of  court;    (1ft 
L.R.A.(N.S.)  1067)  on  disobedience  of  void  order  as  contempt. 
Protection   of   witness. 

Cited  in  note   (11  L.  R.  A.  591)   on  protection  of  witness  on  examination. 

2  L.  R.  A.  225,  RICH  v.  BRAY,  37  Fed.  273. 
Equity  jurisdiction    of  Federal   courts. 

Cited  in  Hale  v.  Tyler,  115  Fed.  838,  holding,  in  cases  of  fraud,  state  court 
administrator  may  be  proceeded  against  in  Federal  court;  Hagge  v.  Kansas 
City  S.  R.  Co.  104  Fed.  393,  holding  several  landowners  affected  by  same  nuisance- 
might  unite  in  action,  provided  injury  to  each  amounted  to  the  $2.000  limit. 

Cited  in  note    (18  L.  R.  A.  269)    on  adoption  by  Federal  courts  of  remedies, 
craated  by  state  statutes. 
Disputed   title   to  real   estate. 

Cited  in  Fuller  v.  Montague,  8  C.  C.  A.  105,  16  U.  S.  App.  391,  59  Fed.  216.. 
holding  Federal  chancery  courts  do  not  decide  questions  of  controverted  real- 
estate  title;  American  Asso.  v.  Eastern  Kentucky  Land  Co.  68  Fed.  722,  holding 
Federal  court  of  equity  cannot  entertain  partition  suit  where  plaintiff's  title  is 
denied;  Elder  v.  McClaskey,  17  C.  C.  A.  265,  37  U.  S.  App.  199,  70  Fed.  543, 
holding  actual  notice  of  ouster  not  necessary  to  establish  adverse  possession  ;• 
Heinze  v.  Butte  &  B.  Consol.  Min.  Co.  61  C.  C.  A".  90,  126  Fed.  28,  by  Ross,  J., 
dissenting,  who  holds  Federal  courts  cannot  try  controverted  questions  of  title 
in  partition  suit. 
When  partition  suit  maintainable. 

Cited  in  Carlson  v.  Sullivan,  77  C.  C.  A.  32,  146  Fed.  478,  holding  it  not 
maintainable  on  ouster  by  one  tenant  in  common  of  co-tenant. 

Cited  in  note  (20  L.  R.  A.  624,  628)  on  right  of  one  out  of  possession  to  parti- 
tion. 
Arrang-ingr    parties. 

Cited  in  Claiborne  v.  Waddell,  50  Fed.  369,  permitting  withdrawal  of  action 
as  to  one  defendant  with  interests  identical  to  complainants'  so  as  not  to  oust 
court  of  jurisdiction;  Cilley  v.  Patten,  62  Fed.  500,  holding  court  will  arrange 
parties  according  to  their  actual  interests  on  question  of  jurisdiction. 

2  L.  R.  A.  229.  ERYVIX  v.  UNITED  STATES,  37  Fed.  470. 
What   fees   allowable  to   United   States  officers. 

Cited  in  Marvin  v.  United  States,  114  Fed.  227,  holding  charge  for  entering 
in  minute  book  memorandum  as  to  court  business  and  adjournment  proper^ 


2  L.R.A.  229]  L.  E.  /..  CASES  AS  AUTHORITIES.  256 

Marvin  v.  United  States,  114  Fed.  227,  holding  charge  for  certified  copy  of  mitti- 
mus allowable;  Marsh  v.  United  States,  88  Fed.  888,  holding  fees  for  entering 
orders  approving  accounts.,  and  for  certified  copies,  certificates,  and  seals,  proper; 
Puleston  v.  United  States,  85  Fed.  576,  holding  mileage  in  removing  prisoners 
under  order  of  court  proper;  Van  Hoorebeke  v.  United  States,  46  Fed.  459,  holding 
presentation  of  accounts  of  district  attorneys,  etc.,  not  condition  precedent  to 
action;  Taylor  v.  United  States,  45  Fed.  534,  holding  fees  for  certificates  and 
seals  to  copies  of  orders  allowable;  Davis  v.  United  States,  45  Fed.  1G3,  holding 
fees  disallowed  by  treasury  proper;  Marvin  v.  United  States,  44  Fed.  407, 
stating  amount  of  clerk's  fees  chargeable  upon  orders  to  pay  accounts  of  officers, 
for  administering  oaths,  and  filing  vouchers;  Goodrich  v.  United  States,  47 
Fed.  268,  holding  charge  for  services  of  deputy  clerk  as  jury  commissioner 
proper;  United  States  v.  King,  147  U.  S.  683,  37  L.  ed.  330,  13  Sup.  Ct.  Rep. 
439,  holding  charge  for  making  separate  reports  of  mileage  fees  of  jurors  and 
witnesses  improper;  United  States  v.  Harmon,  147  U.  S.  274,  37  L.  ed.  167, 
13  Sup.  Ct.  Rep.  327,  Affirming  43  Fed.  563,  holding  circuit  court  has  juris- 
diction over  claims  disallowed  by  comptroller  of  treasury;  Goodrich  v.  United 
States,  42  Fed.  395,  holding  costs  of  attachment  proceedings  chargeable  to 
United  States;  Goodrich  v.  United  States,  42  Fed.  394,  holding  clerk's  fees  for 
entering  orders,  etc.,  chargeable  to  United  States;  Jones  v.  United  States,  39 
Fed.  414,  holding  clerk  of  district  court  entitled  to  fees;  United  States  v.  Warren, 
12  Okla.  360,  71  Pac.  685,  holding  clerk  of  territorial  district  court  entitled  to 
statutory  compensation  for  each  day  court  was  actually  in  session,  whether 
business  was  transacted  or  not. 
Common-law  procedure  in  United  States  courts. 

Cited  in  Howard  v.  United  States,  75  Fed.  991,  34  L.  R.  A.  514,  holding  United 
States  courts  governed  by  rules  of  common  law  in  imposing  cumulative  sen- 
tences; Withaup  v.  United  States,  62  C.  C.  A.  328,  127  Fed.  534,  raising,  without 
determining  question,  whether,  in  absence  of  Federal  statute  or  established  rules 
of  evidence  in  state  when  admitted,  common-law  rules  of  evidence  would  govern 
United  States  courts. 
Necessity  of  formal  commitment  to  render  imprisonment  valid. 

Cited  in  note  (38  L.R.A.(N.S.)  611)  on  necessity  of  formal  commitment  to 
render  imprisonment  valid. 

2  L.  R.  A.  242,  FLOYD  v.  PERRIN,  30  S.  C.  1,  8  S.  E.  14. 
Township  bonds. 

Cited  in  Hicks  v.  Cleveland,  45  C.  C.  A.  435,  106  Fed.  465,  holding  mandamus 
will  lie  to  compel  levy  of  tax  to  pay  judgment  recovered  by  holder  of  township 
bonds;  Massachusetts  &  S.  Const.  Co.  v.  Cherokee  Twp.  42  Fed.  752,  holding 
bonds  of  township  for  railroad  construction,  held  by  trustee,  should  be  delivered 
to  owners;  Massachusetts  &  S.  Const.  Co.  v.  Cane  Creek  Twp.  45  Fed.  336,  holding 
bonds  for  railroad  construction  cannot  be  issued  to  an  amount  exceeding  consti- 
tutional limit;  Granniss  v.  Cherokee  Twp.  47  Fed.  428,  holding  coupons  on  town- 
ship bonds  issued  for  construction  of  railroad  prior  to  completion,  invalid,  and  all 
subsequent  thereto  valid;  Finance  Co.  v.  Charleston,  C.  &  C.  R.  Co.  52  Fed.  679, 
holding  lawyers  cannot  recover  for  gratuitous  services  in  obtaining  legislation 
validating  township  bonds;  Jack  v.  Williams,  113  Fed.  825,  holding  purchaser 
of  railroad  constructed  on  township  bonds,  whose  franchise  had  been  revoked 
by  legislation,  might  remove  rails;  State  ex  rel.  Charleston,  C.  &  C.  R.  Co.  v 
Whitesides,  30  S.  C.  583,  3  L.  R.  A.  777,  9  S.  E.  661,  holding  mandamus  will  lie 
to  compel  county  officer  to  indorse  certificate  of  construction  engineer  authorizing 
issue  of  township  bonds;  Holstein  v.  Edgefield  County,  64  S.  C.  382,  42  S.  E.  180, 


257  L,  R.  A.  CASES  AS  AUTHORITIES.  [2  L.RJL  252 

denying   injunction   against    payment   of   railroad-aid   bonds,   adjudged   legal   by 
Federal  court,  contrary  to  determination  of  state  courts. 

Distinguished  in  Allen  v.  Adams.  66  S.  C.  356,  44  S.  E.  938,  holding  incorporated 
town  may  issue  bonds  for  school  building. 

Limited  in  Darlington  v.  Atlantic  Trust  Co.  16  C.  C.  A.  33,  25  U.  S.  App.  354, 
68  Fed.  855,  holding  town  bonds  issued  in  construction  of  railway  valid;  State 
ex  rel.  Dickenson  v.  Xeely,  30  S.  C.  603,  3  L.  R.  A.  678,  9  S.  E.  664,  holding  legis- 
lature may  levy  tax  to  aid  in  construction  of  railroad  upon  assent  of  territory 
to  be  taxed. 

Disapproved  in  Pickens  Twp.  v.  Post,  41  C.  C.  A.  3,  99  Fed.  661,  holding  owner 
of  township  bonds  a  bona  fide  holder. 

Overruled  in  Folsom  v.  Township  Ninety  Six,  159  U.  S.  622,  40  L.  ed.  282,  16 
Sup.  Ct.  Rep.  174,  holding  township  bonds  issued  in  construction  of  railroad 
valid;  Smith  v.  Walker,  74  S.  C.  526,  54  S.  E.  779,  by  reason  of  contrary 
ruling  of  United  States  court,  holding  a  legislative  act  providing  that  the 
coporation  of  certain  townships  should  be  abolished  is  void  as  against  bonded 
debts  previously  created  by  them. 

Cited  as  overruled  in  Ex  parte  Folsom,  131  Fed.  497,  holding  a  constitutional 
amendment  abolishing  certain  townships  was  objectionable  to  the  Federal  con- 
stitution in  so  far  as  it  impaired  the  obligation  of  contracts  previously  entered 
into  by  the  township. 
Craiit  of  corporate  powers. 

Cited  in  Folsom  v.  Township  Ninety  Six,  159  U.  S.  628,  40  L.  ed.  284,  16  Sup. 
Ct.  Rep.  174,  holding  legislature  might  grant  corporate  powers  to  cities,  counties, 
towns,  and  townships;  Congaree  Constr.  Co.  v.  Columbia  Twp.  49  S.  C.  537,  27 
S.  E.  570,  holding  statute  authorizing  townships  to  subscribe  to  stock  of  rail- 
roads, and  making  them  corporations  for  that  purpose,  invalid;  White  v.  Rock 
Hill,  34  S.  C.  245,  13  S.  E.  416,  holding  license  tax  cannot  be  collected  from  one 
not  shown  to  intend  to  engage  in  business  for  shorter  period  than  one  year. 

Cited  in  footnote  to  Dell  Rapids  v.  Irving,  29  L.  R.  A.  861,  which  holds  town- 
ship organized  under  state  law  not  a  ^municipal  corporation." 
Exercise  by  corporation   of  Incidental   powers. 

Cited  in  General  Conference  v.  Berkey,  156  Cal.  470,  105  Pac.  411,  holding  a 
single  sale  of  land  by  a  foreign  corporation  organized  for  religious,  educational 
and  charitable  purposes,  with  power  to  acquire  and  sell  property  in  subordination 
to  such  purpose  was  not  such  a  transaction  of  business  by  a  foreign  corporation 
as  to  require  the  authorization  of  the  court. 
Title  of  act. 

Cited  in  Buist  v.  Charleston,  77  S.  C.  272,  57  S.  E.  862,  holding  an  act  auth- 
orizing a  city  counsel  to  issue  coupon  bonds  to  pay  present  bonded  indebtedness 
.bout  to  mature  was  not  objectionable  to  provision  of  the  constitution  pro- 
viding that  every  act  shall  relate  to  but  one  subject  and  that  shall  be  expressed  in 
the  title;  Jellice  v.  State  Election  Comrs.  83  S.  C.  488,  65  S.  E.  725,  holding 
provisions  of  act  as  to  elections  in  counties  in  which  dispensaries  were  recently 
in  operation  were  germane  to  an  act  the  subject  of  which  was  the  prohibition  of 
the  sale  of  intoxicating  liquors. 

Cited  in  notes  (2  L.R.A.  789)  on  title  of  statute  must  fairly  suggest  subjects 
•dealt  with  in  the  acts;  (64  Am.  St.  Rep.  103)  on  sufficiency  of  title  of  statute. 

2  L.R.A.  252,  PALMER  v.  PENNSYLVANIA  CO.  Ill  N.  Y.  488,  18  N.  E.  859. 
I>e«;ree  of  care  required  of  carrier  to  prevent   Injury  from  accident. 

Cited  in  Palmer  v.  Delaware  &  H.  Canal  Co.   120  N.  Y.  177,  17  Am.  St.  Rep. 
L.R.A.  Au.  Vol.  I.— 17. 


2  L.R.A.  252]  L.  R.  A.  CASES  AS  AUTHORITIES.  258 

G29.  24  X.  E.  302,  holding  carrier  must  use  utmost  care  and  diligence  to  prevent 
defects  in  operative  machinery,  appliances,  and  apparatus;  Gulf,  C.  &  S.  F.  R. 
Co.  v.  Shields,  9  Tex.  Civ.  App.  656,  28  S.  W.  709,  and  Jensen  v.  Hamburg-Amer- 
ican Packet  Co.  23  App.  Div.  167,  48  N.  Y.  Supp.  630,  holding  rule  as  to  highest 
care  applies  only  to  appliances  and  machinery;  Illinois  C.  R.  Co.  v.  Kuhn,  107 
Tenn.  Ill,  64  S.  W.  202,  holding  rule  as  to  highest  care  applies  to  operative 
machinery  and  appliances,  roadbed,  and  tracks;  Kelly  v.  Manhattan  R.  Co.  112 
N.  Y.  451,  3  L.  R.  A.  76,  20  X.  E.  383,  holding  less  degree  of  care  required  as  to 
approaches  to  cars  than  in  regard  to  roadbed,  machinery,  or  car  construction; 
Conroy  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  96  Wis.  256.  38  L.  R.  A.  423,  70  X.  W. 
486,  holding  carrier  not  bound  to  use  highest  degree  of  care  to  prevent  passenger 
awaiting  train  from  exposure  to  danger;  Buck  v.  Manhattan  R.  Co.  15  Daly.  552. 
10  N.  Y.  Supp.  107,  holding  carrier  only  bound  to  use  reasonable  care  to  prevent 
injury  to  passenger  getting  on  or  off  vehicles :  McKeon  v.  Chicago.  M.  &  St.  P. 
R.  Co.  94  Wis.  485,  35  L.  R.  A.  257,  59  Am.  St.  Rep.  909,  69  X.  W.  175.  holding 
wrongful  instruction  as  to  degree  of  care  required  of  carrier  harmless,  when  no 
care  was  shown;  Dochtermann  v.  Brooklyn  Heights  R.  Co.  32  App.  Div.  21.  52 
N.  Y.  Supp.  1051  (dissenting  opinion),  majority  holding  question  for  jury  whether 
car  was  negligently  started  before  passenger  had  taken  seat;  McCarty  v.  St. 
Louis  &  S.  R.  Co.  105  Mo.  App.  604,  80  S.  W.  7,  on  railroad  as  owing  only  the 
exercise  of  ordinary  care  to  one  not  a  passenger  not  to  inflict  injury  upon  him: 
Stappers  v.  Interburban  Street  R.  Co.  56  Misc.  339,  106  X.  Y.  Supp.  854,  on  the 
highest  degree  of  care  as  being  required  of  railroad  company  to  see  that  ma- 
chinery and  appliances  are  in  a  safe  condition. 

Cited  in  notes  (42  L.  ed.  U.  S.  493)  on  duty  to  protect  persons  about  to  take 
train;  (5  Eng.  Rul.  Cas.  462,  463)  on  extent  of  duty  to  secure  safety  of  passen- 
gers. 

Distinguished  in  Cobb  v.  Lindell  R.  Co.  149  Mo.  151,  50  S.  W.  310,  holding 
highest  degree  of  care  applies  to  service,  as  well  as  construction  and  equipment. 
Slippery  or  defective  approaches,  platforms,  car  steps,  etc. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Aldridge,  27  Ind.  App.  500.  61 
X.  E.  741,  holding  carrier  not  responsible  for  injury  from  snow  on  car  steps. 
without  reasonable  opportunity  to  remove;  Oilman  v.  Boston  &  M.  R.  Co.  168 
Mass.  455.  47  X.  E.  193,  upholding  finding  of  jury  that  carrier  was  negligent 
in  not  properly  clearing  car  steps  of  ice  and  snow;  Proud  v.  Philadelphia  &  R. 
R.  Co.  64  N.  J.  L.  707,  50  L.  R.  A.  470,  46  Atl.  710,  holding  carrier  not  bound 
to  know  at  each  moment  the  condition  of  every  part  of  the  train:  Pittsburgh,  C. 
C.  &,St.  L.  R.  Co.  v.  Harris,  38  Ind.  App.  79,  77  N.  E.  1051,  holding  only  the 
exercise  of  ordinary  care  Was  required  of  railroads  in  keeping  their  platforms 
and  approaches  in  a  safe  condition  for  passengers;  Vancleve  v.  St.  Louis,  M.  &.  S. 
E.  R.  Co.  ]07  Mo.  App.  103,  80  S.  W.  706,  holding  railroad  company  was  not 
liable  to  passenger  injured  while  alighting  from  train  b\  reason  of  the  muddy  con- 
dition of  the  steps  such  condition  arising  after  train  was  en  route  and  caused 
by  passengers  boarding  train ;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Rose,  40  Ind. 
App.  253,  79  X.  E.  1094,  holding  defendant  company  was  not  liable  to  a 
passenger  injured  by  slipping  on  a  banana  peeling  thrown  by  a  third  party  on 
the  steps  of  the  car  shortly  before  accident  without  defendants'  knowledge;  Mc- 
Cormick  v.  Sydney  &  G.  B.  R.  Co.  37  X.  S.  257;  Riley  v.  Rhode  Island  Co.  29 
R.  I.  145,  15  L.R.A.(X.S.)  524,  69  Atl.  338,  17  A.  &  E.  Ann.  Cas.  50,— holding 
defendant  company  was  not  liable  where  plaintiff  injured  by  slipping  on  the 
snow  and  ice  on  steps  of  car,  which  had  been  deposited  there  by  passengers  follow- 
ing a  storm  of  snow  and  rain:  Stanford  v.  Chester  Traction  Co.  11  Del.  Co.  Rep. 
244,  holding  carrier  not  liable  for  injury  to  passenger  from  slipping  on  banana 


259  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  255 

peel  in  aisle,  in  absence  of  evidence  that  it  was  put  there  by  employees,  or  that 
they  had  actual  or  constructive  notice  of  it. 

Cited  in  footnote  to  Proud  v.  Philadelphia  &  R.  R.  Co.  50  L.  R.  A.  468,  which 
denies  liability  for  injury  by  slipping  on  filth  on  car  step  in  nighttime,  withjn 
half  hour  after  car  inspected. 

Cited  in  notes   (3  L.R.A.  74)   on  duty  of  railroads,  as  carriers,  to  furnish  safe 
approaches,  platforms,  etc.;    (15  L.R.A.(N.S.)    523)    on  duty  of  carrier  of  pas- 
sengers to  keep  car  steps  free  from  snow  and  ice. 
Street  railway  companies. 

Cited  in  Stierle  v.  Union  R.  Co.  156  N.  Y.  73,  50  N.  E.  419,  holding  street  car 
company  not  bound  to  exercise  highest  degree  of  care  and  skill  in  switching; 
Leyh  v.  Xewburgh  Electric  R.  Co.  41  App.  Div.  220,  58  N.  Y.  Supp.  479,  holding 
electric  railway  company  not  bound  to  use  highest  care  in  respect  to  curtain 
rods. 

Distinguished  in   Stierle  v.  Union  R.   Co.   13  Misc.   134,  34  N.  Y.  Supp.   185, 
holding  rule  as  to  highest  degree  of  care  and  skill  inapplicable  to  operation  of 
street  horse  cars. 
Steamship  companies. 

Cited  in  Bruswitz  v.  Netherlands  American  Steam  Nav.  Co.  64  Hun,  266,  19 
X.  Y.  Supp.  75,  holding  steamship  company  not  bound  to  exercise  highest  care 
to  prevent  passenger  from  tripping  on  floor  sockets  in  rolling  sea;  Ganguzza  v. 
Anchor  Line,  97  App.  Div.  353,  89  N.  Y.  Supp.  1049,  holding  defendant  company 
was  not  liable  for  an  injury  to  plaintiff  by  the  parting  of  a  wire  rope  used  to 
hoist  ashes  while  plaintiff  was  standing  in  a  doorway  leading  from  the  steerage 
to  crew's  quarters,  watching  the  operations. 
Act  of  God  as  defense. 

Cited  in  note  (11  L.  R.  A.  616)  on  act  of  God  as  defense  for  loss  by  carrier. 
—  Duty  to  remove  snovr  and  Ice. 

Cited  in  Harkin  v.  Crumbie,  20  Misc.  570,  46  X.  Y.  Supp.  453,  holding  apart- 
ment owner  only  required  to  remove  ice  from  courtyard  within  reasonable  time. 
Carrier's  liability  as  to  passenger  riding:  on  platform. 

Cited  in  Cincinnati,  L.  &  A.  Electric  Street  R.  Co.  v.  Lohe,  68  Ohio  St.  Ill,  67 
N.  E.  161,  holding  passenger  injured  while  voluntarily  riding  on  platform  of  inter- 
urban  electric  car,  cannot  recover  damages. 
Contributory  negligence  in  going  on   car  platform. 

Cited  in  Hanrahan  v.  Manhattan  R.  Co.  53  Hun,  424,  6  N.  Y.  Supp.  395,  holding 
passenger  guilty  of  contributory  negligence  in  stumbling  on  station  platform 
known  to  her  to  have  been  higher  than  car  platform. 

2  L.  R.  A.  255,  PEOPLE  v.  O'BRIEN,  111  N.  Y.  1,  7  Am.  St.  Rep.  684,  18  N. 

E.  692. 
Xatnre  of  rigbt  created  by  corporate  franchise Railroads. 

Cited  in  Ingersoll  v.  Nassau  Electric  R.  Co.  157  N.  Y.  463,  43  L,  R.  A.  239, 
52  X.  E.  545;  Coney  Island,  Ft.  H.  &  B.  R.  Co.  v.  Kennedy,  15  App.  Div.  591, 
44  X.  Y.  Supp.  825;  Pape  v.  New  York  &  H.  R.  Co.  74  App.  Div.  189,  77  X.  Y. 
Supp.  725  (concurring  opinion)  ;  Roddy  v.  Brooklyn  City  &  X.  R.  Co.  32  App.  Div. 
314.  52  N.  Y.  Supp.  1025, — holding  franchise  to  construct  and  operate  street  rail- 
way is  property;  Herzog  v.  New  York  Elev.  R.  Co.  37  N.  Y.  S.  R.  569,  14  N.  Y. 
Supp.  290.  59  X.  Y.  S.  R.  343,  holding  grant  of  right  to  use  streets  for  elevated 
railway  gives  grantee  estate  in  street;  Southern  Boulevard  R.  Co.  v.  Xorth  New 
York  City  Traction  Co.  16  Misc.  271,  39  X.  Y.  Supp.  266,  holding  railway  fran- 
chise is  in  nature  of  easement  in  public  highway;  Syracuse  Water  Co.  v.  Syracuse, 


2  L.R.A.  255]  L.  R.  A.  CASES  AS  AUTHORITIES.  260 

116  N.  Y.  182,  5  L.  R.  A.  552,  22  X.  E.  381,  holding  corporate  rights  and  means 
of  exercising  them  constitute  single  body,  consisting  of  property,  corporeal  and 
incorporeal;  Africa  v.  Knoxville,  70  Fed.  734.  737.  and  Mercantile  Trust  &  De- 
posit Co.  v.  Collins  Park  &  B.  R.  Co.  101  Fed.  350,  holding  privileges  in  streets 
granted  street  railway  company  constitute  contract,  which  cannot  be  impaired; 
Mason  v.  Ohio  River  R.  Co.  51  W.  Va.  187,  41  S.  E.  418,  holding  municipal  grant, 
accepted  by  railroad,  of  right  to  use  street,  a  binding  contract;  Detroit  Citizens' 
Street  R.  Co.  v.  Detroit,  26  L.  R.  A.  673,  12  C.  C.  A.  370,  22  U.  S.  App.  570,  64 
Ped.  634,  Reversing  56  Fed.  883,  holding  street  railway  company  capable  of  taking 
franchise  for  term  beyond  corporate  life  is  not  restricted  by  charter;  Parker  v. 
Elmira,  C.  &  N.  R.  Co.  165  N.  Y.  280,  59  N.  E.  81,  holding  right  of  railroad,  under 
statute,  to  charge  fare  at  rate  of  4  cents  per  mile,  property  entitled  to  protection; 
Rochester  v.  Rochester  R.  Co.  182  N.  Y.  124,  70  L.R.A.  784,  74  N.  E.  953  (dis- 
senting opinion),  on  no  right  existing  to  recall  or  modify  a  contract  with  a  cor- 
poration which  exempted  such  corporation  from  burdens  of  specific  municipal  ex- 
penses; Knickerbocker  Trust  Co.  v.  Tarrytown,  W.  P.  &  M.  R.  Co.  139  App.  Div. 
308,  123  N.  Y.  Supp.  954,  holding  that  street  railroad  franchise  in  property 
that  may  survive  railroad  owning  it;  People  ex  rel.  Hudson  &  M.  R.  Co.  v.  State 
Tax  Bd.  of  Comrs.  203  N.  Y.  125,  96  N.  E.  435,  holding  street  railroad  franchise 
taxable,  though  railroad  is  engaged  in  interstate  commerce;  People  ex  rel. 
Bryan  v.  State  Tax  Comrs.  142  App.  Div.  799,  127  N.  Y.  Supp.  858,  holding  that 
railroad  tunnel  under  river  is  subject  to  special  franchise  tax;  People  ex  rel. 
Third  Ave.  R.  Co.  v.  Public  Service  Commission,  203  N.  Y.  308,  96  X.  E.  1011, 
holding  provisions  of  public  service  commissions  law,  requiring  approval  of  com- 
mission to  exercise  at  transfer  of  franchise,  inapplicable  to  reorganized  street 
railway. 

Cited  in  footnote  to  Belleville  v.  Citizens'  Horse  R.  Co.  26  L.R.A.  6S1,  which 
holds  consent  to  use  streets  for  tracks  of  railway  company  is  mere  license. 

Cited  hi  notes  (5  L.  R.  A.  371 ;  8  L.  R.  A.  453)  on  right  of  railroad  to  construct 
and  operate  line  on  street;  (4  L.  R.  A.  624)  on  use  of  public  streets  for  horse 
railroads;  (8  L.  R.  A.  539)'  on  electric  railways  in  city  streets;  (9  L.  R.  A. 
101)  on  use  of  streets  in  municipalities;  (50  L.  R.  A.  143)  on  privilege  of  using 
streets  as  a  contract,  within  constitutional  provision  against  impairing  obligation 
of  contracts;  (66  L.R.A.  36)  on  nature  of  railroad  franchise  as  realty  or  per- 
sonalty. 

Distinguished  in  Re  Toronto  Street  R.  Co.  22  Ont.  Rep.  400,  holding  where  a 
right  was  reserved  to  terminate  a  franchise,  such  franchise  could  not  be  considered 
as  property  to  be  valued  in  arriving  at  the  valuation  of  the  railroad  when  taken 
•over  by  the  city. 
Water  companies. 

Cited  in  Re  Long  Island  Water  Supply  Co.  30  Abb.  N.  C.  52,  24  N.  Y.  Supp. 
!813,  holding  company  organized  under  general  statute  exists  by  virtue  of  con- 
tract with  town,  and  has  exclusive  franchise  for  full  term  of  charter;  Skaneateles 
Waterworks  Co.  v.  Skaneateles,  161  N.  Y.  167,  46  L.  R.  A.  691,  55  X.  E.  562, 
holding  reserved  right  to  grant  franchise  to  another  corporation  not  authority 
for  invasion  of  that  first  granted;  lie  Water  Comrs.  71  App.  Div.  552,  554.  7(3 
N.  Y.  Supp.  11,  holding  franchise  includes  rights  to  collect  and  store  water,  and 
to  convey  same  to  consumers  for  compensation ;  Rochester  &  L.  O.  Water  Co.  v. 
Rochester,  176  N.  Y.  50,  68  X.  E.  117,  Affirming  84  App.  Div.  78,  82  X.  Y.  Supp. 
45.).  holding  a  water  company  duly  incorporated  for  the  purpose  of  supplying 
water,  may  enjoin  the  city  from  preventing  the  laying  of  water  pipes  where  it 
has  procured  a  right  of  way  and  entered  into  contracts  for  the  laying  of  pipes. 

jCited  in  note   (9  L.  R.  A.  196)   on  franchises  of  water  companies. 


261  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  255 

Distinguished  in  Re  Brooklyn,  143  N.  Y.  616,  26  L.  R.  A.  277,  38  N.  E.  983, 
Affirming  73  Hun,  506,  26  X.  Y.  Supp.   198,  holding  grant  of  franchise,  not  ex- 
clusive in  terms,  does  not  preclude  similar  franchise  to  another  company. 
(.:is   companies. 

Cited  in  People  ex  rel.  Woodhaven  Gaslight  Co.  v.  Deehan,  11  App.  Div.  176, 
42  X.  Y.  Supp.  1071,  holding  franchise  to  lay  mains  in  streets  is  property,  and 
not  affected  by  change  in  form  of  government  from  town  to  village;  People  ex  rel. 
Woodhaven  Gaslight  Co.  v.  Deehan,  153  X.  Y.  532,  47  N.  E.  787,  holding  fran- 
chise cannot  be  destroyed  by  village  arbitrarily  refusing  to  permit  company  to 
place  conductors  under  streets. 
—  Telesrraph  companies  and  other  corporations. 

Cited  in  Western  U.  Teleg.  Co.  v.  Syracuse,  24  Misc.  342,  53  N.  Y.  Supp.  690, 
holding  franchise  for  construction  of  subway  by  telegraph  company  is  property, 
which  cannot  be  taken  away  or  impaired  by  municipality;  Hudson  River  Teleph. 
Co.  v.  Watervliet  Turnp.  &  R.  Co.  135  X.  Y.  408,  17  L.  R.  A.  679,  31  Am.  St.  Rep. 
838,  32  X.  E.  148,  holding  telephone  company  has  no  easement  in  streets  used 
by  it,  but  franchise  is  property  while  it  continues;  Andrus  v  Xational  Sugar  Ref. 
Co.  72  App.  Div.  554,  76  X.  Y.  Supp.  530.  holding  franchise  to  erect  docks  is 
property  capable  of  conveyance;  Champlain  Stone  &  Sand  Co.  v.  State,  66  Misc. 
468,  123  N.  Y.  Supp.  546  (dissenting  opinion)  ;  Southwestern  Teleg.  &  Teleph.  Co. 
v.  San  Antonio,  32  Tex.  Civ.  App.  102,  73  S.  W.  859;  Fulton  Light,  H.  &  P.  Co. 
v.  State,  65  Misc.  290,  121  X.  Y.  Supp.  536, — on  a  franchise  as  being  property; 
Willcox  v.  Consolidated  Gas  Co.  212  U.  S.  44,  53  L.  ed.  396,  29  Sup.  Ct.  Rep. 
192,  15  A.  &  E.  Ann.  Cas.  1034;  Reversing  157  Fed.  Rep.  875,  on  franchises  of 
public  service  corporations  as  being  property. 
Elements  necessary  to  complete  corporate  franchise. 

Cited  in  Re  Union  Elev.  R.  Co.  112  X.  Y.  74,  2  L.  R.  A.  362,  19  X.  E.  664; 
Suburban  Rapid  Transit  Co.  v.  New  York,  128  N.  Y.  520,  28  X.  E.  525;  White 
v.  Manhattan  R.  Co.- 139  N.  Y.  26,  34  X.  E.  887;  Detroit  Citizens'  Street  R.  Co. 
v.  Detroit,  64  Fed.  645, —  holding  municipal  consent  to  construct  street  railway 
is  muniment  of  title  to  enjoyment  of  rights  acquired  thereimder;  Andrews  v. 
Xational  Foundry  &  Pipe  Works,  10  C.  C.  A.  67,  18  U.  S.  App.  458,  61  Fed.  788, 
holding  corporation  organized  to  construct  and  operate  waterworks  acquires  no 
complete  franchise  without  grant  from  municipality;  Underground  R.  Co.  v.  Xew 
York,  116  Fed.  957,  holding  street  railroad  company  filing  map  of  proposed  line, 
failing  to  obtain  city's  consent,  has  no  contract  rights  to  be  impaired  by  subse- 
quent legislation;  People  v.  Adirondack  R.  Co.  39  App.  Div.  52,  55,  56,  56  X.  Y. 
Supp.  869  (dissenting  opinion),  majority  holding  railroad  filing  map  and  profile 
of  proposed  route,  and  giving  requisite  notice  to  answer,  acquires  right  in  route  as 
against  subsequent  purchase  by  state :  Underground  R.  Co.  v.  Xew  York,  193  U.  S. 
425,  48  L.  ed.  735,  24  Sup.  Ct.  Rep.  494,  holding  the  regular  organization  of  a 
railroad  and  the  filing  of  a  map  of  the  proposed  route,  without  obtaining  the  con- 
sent of  municipal  authorities  or  abutting  property  owners  did  not  vest  in  them 
an  exclusive  right  to  the  space  designated  on  map  for  their  line. 
Franchises  limited  as  to  time. 

Cited  in  Citizens'  Street  R.  Co.  v.  City  R.  Co.  64  Fed.  650,  holding  limitation 
of  thirty  years  in  city  ordinance  consenting  to  use  of  streets  for  operation  of 
railway  invalid;  Vermillion  v.  Xorthwestern  Teleph.  Exch.  Co.  Ill  C.  C.  A.  21, 
189  Fed.  292,  holding  that  city  may  limit  term  of  telephone  franchise. 

Distinguished  in  Xew  York  C.  &  II.  R.  R.  Co.  v.  Xew  York,  202  X.  Y.  221.  '.'.'> 
X.  E.  638,  Affirming  142  App.  Div.  590,  127  X.  Y.  Supp.  513,  holding  that  city 
cannot  oust  railroad  from  streets  on  ground  that  charter  has  expired. 


2  L.R.A.  255]  L.  R.  A.  CASES  AS  AUTHORITIES.  262 

I!  iuhfs  and  obligations  incident  to  corporate  franchises  in  general. 

Cited  in  Opinion  of  the  Justices,  66  X.  H.  030,  33  Atl.  1076,  holding  rights  of 
corporate  property  under  Constitution  same  as  those  of  individuals;  New  York 
Cement  Co.  v.  Consolidated  Rosendale  Cement  Co.  38  Misc.  .V23.  77  X.  Y.  Supp. 
1093,  holding  franchise  of  corporation  and  its  property  are  inseparable,  and 
grantee  assumes  obligations  attaching  to  property;  Weatherly  v.  Capital  City 
Water  Co.  115  Ala.  179,  22  So.  140.  holding  contract  to  furnish  water  runs  with 
franchise,  and  is  obligatory  on  assignee  of  recipient  of  grant;  Re  Water  Comrs. 
71  App.  Div.  550,  76  X.  Y.  Supp.  11,  holding  reservation  of  right  to  purchase,  in 
consent  of  municipal  corporation  to  use  of  streets  by  water  company,  not  lack- 
ing in  mutuality;  Boyer  v.  Little  Falls,  5  App.  Div.  7,  38  X.  Y.  Supp.  1114,  hold- 
ing purchaser  of  stock  of  business  corporation  may  become  substantial  owner  of 
its  property;  Xew  York  Cement  Co.  v.  Consolidated  Rosendale  Cement  Co.  178 
N.  Y.  177,  70  X.  E.  451,  holding  the  part  of  a  canal  purchased  by  a  manufactur- 
ing corporation  for  transportation  purposes  still  remained  a  public  highway  and 
subject  to  restrictions  placed  upon  the  canal  company  in  its  charter;  Wake- 
field  v.  Theresa,  125  App.  Div.  42,  109  X.  Y.  Supp.  414,  holding  defendant  might 
be  enjoined  from  depriving  plaintiff  to  whom  it  had  granted  a  franchise  to  erect 
and  maintain  an  electric  light  plant  the  privilege  of  using  the  public  streets; 
People  ex  rel.  Xew  York  Electric  Lines  Co.  v.  Ellison,  51  Misc.  417,  101  X.  Y. 
Supp.  444;  Buffalo  v.  Delaware.  L.  &  W.  R.  Co.  126  App.  Div.  131,  110  X.  Y. 
Supp.  488,  on  rights  of  corporation  under  franchise  of  which  there  has  been  a 
user. 

Cited  in  footnotes  to  Theobold  v.  Louisville,  X.  0.  &  T.  R.  Co.  4  L.  R.  A.  735, 
which  holds  steam  railroad  cannot  be  operated  in  street  without  condemnation, 
or  consent  of  abutting  owner;  Chicago  G.  W.  R.  Co.  v.  First  M.  E.  Church,  50  L. 
R.  A.  488,  which  holds  that  grant  of  right  to  operate  railroad  in  street  gives  no 
authority  to  erect  and  maintain  water  tank  therein. 
Regulation  of  use  of  franchises. 

Cited  in  Re  Seaboard  Teleg.  &  Teleph.  Co.  68  App.  Div.  285.  74  X.  Y.  Supp.  15, 
holding  city  cannot  destroy  franchise  of  telegraph  company  by  refusing  permit 
to  repair  wires. 

Distinguished  in  Lake  Roland  Elev.  R.  Co.  v.  Baltimore,  77  Md.  367,  20  L.  R. 
A.  129,  26  Atl.  510,  holding  street  railway  franchise  for  use  of  streets  for  double 
track  may  be  restricted  to  single  track. 
Assiiviiubility    of    franchise    or    patent. 

Cited  in  General  R.  Signal  Co.  v.  Cade,  122  App.  Div.  109,  106  X.  Y.  Supp. 
720,  holding  where  a  corporation  has  made  a  sale  of  its  patents  an  action  may 
be  maintained  by  the  purchaser  to  compel  the  specific  performance  of  the  con- 
tract; Des  Moines  City  R.  Co.  v.  Des  Moines,  151  Fed.  861,  on  the  assignability 
of  a  franchise. 
Leases  and  other  contracts  hetiveen  railroads. 

Cited  in  Tate  v.  Xeary,  52  App.  Div.  84,  65  X.  Y.  Supp.  40.  holding  lease  by 
corporation  extending  beyond  term  of  its  existence  not  invalid;  Frank  v.  New 
York.  L.  E.  &  W.  R.  Co.  122  X.  Y.  214,  25  X.  E.  332,  holding  agreement  trans- 
ferring railroad,  and  all  rights,  powers,  and  privileges  appurtenant  thereto,  con- 
veys leasehold  carved  out  of  fee:  Beveridge  v.  Xew  York  Elev.  R.  Co.  112  X.  Y. 
21,  2  L.  R.  A.  652,  19  X.  E.  489,  and  Roddy  v.  Brooklyn  Heights  R.  Co.  23  Misc. 
370.  52  X.  Y.  Supp.  885,  holding  street  railway  incorporated  before  1874  entitled 
to  contract  with  another  railroad  for  use  of  respective  roads;  Barnett  v.  Brook- 
lyn Heights  R.  Co.  53  App.  Div.  441,  65  X.  Y.  Supp.  1068,  and  Ingersoll  v.  Xassau 
Electric  R.  Co.  157  X.  Y.  459,  43  L.  R.  A.  239,  52  X.  E.  545,  holding  Laws  1839, 


203  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  255 

chap.  218,  permitting  contracts  between  railroads  for  use  of  respective  roads,  in 
force,  and  authority  for  traffic  agreements  and  leases  by  both  steam  and  street 
railways;  Roddy  v.  Brooklyn  Heights  R.  Co.  23  Misc.  377,  52  X.  Y.  Supp.  885, 
holding  Laws  1839,  chap.  218,  not  repealed  by  Laws  1884,  chap.  252,  prohibiting 
traffic  agreements  between  parallel  lines;  Topham  v.  Interurban  Street  R.  Co. 
42  Misc.  510,  86  X.  Y.  Supp.  295,  holding  defendant  road  taking  a  lease  of  two 
independent  connecting  lines  existing  under  separate  franchises  might  be  com- 
pelled to  give  transfers  from  any  of  such  lines  to  the  other. 

Cited  in  note  (45  L.  R.  A.  273)  on  restrictions  on  consolidation  of  parallel  or 
competing  railroads. 

Distinguished  in  Ingersoll  v.  Xassau  Electric  R.  Co.  157  N.  Y.  477,  43  L.  R.  A. 
239,  52  X.  E.  545  (dissenting  opinion),  majority  holding  street  railway  may  oper- 
ate cars  on  track  of  another  company  under  contract,  without  consent  of  abutting 
property  owners, 
fros.sinii  of  one  railroad  by  another. 

Cited  in  People's  R.  Co.  v.  Syracuse,  B.  &  X.  Y.  R.  Co.  22  Abb.  X.  C.  438,  6  N. 
Y.  Supp.  326,  holding  street  railroad  cannot  construct  road  across  track  of  steam 
railway  until  compensation  and  manner  of  creasing  determined. 
Revocation  or  repeal  of  charter  or  franchise. 

Cited  in  West  Jersey  Traction  Co.  v.  Camden  Horse  R.  Co.  52  N.  J.  Eq.  482, 
29  Atl.  333,  holding  legislature  may,  by  repeal  of  charter,  resume  franchise  of 
street  railway,  either  in  whole  or  in  part;  Hudson  River  Teleph.  Co.  v.  Water- 
vliet  Turnp.  &  R.  Co.  135  X.  Y.  408,  17  L.  R.  A.  679,  31  Am.  St.  Rep.  838,  32  N. 
E.  148,  holding  legislative  grant  to  telephone  company  to  occupy  streets  is  revoca- 
ble at  pleasure;  Barnes  v.  Arnold,  23  Misc.  205,  51  X.  Y.  Supp.  1109,  holding 
legislature  may  modify  or  repeal  charter  of  bank  incorporated  by  filing  certifi- 
cate under  general  law;  Ingersoll  v.  Xassau  Electric  R.  Co.  157  X.  Y.  463,  43  L. 
R.  A.  239,  52  X.  E.  545;  Sandham  v.  Xye,  9  Misc.  546,  30  X.  Y.  Supp.  552;  Coney 
Island,  Ft.  H.  &  B.  R.  Co.  v.  Kennedy,  15  App.  Div.  591,  44  X.  Y.  Supp.  825; 
Roddy  v.  Brooklyn  City  &  X.  R.  Co.  32  App.  Div.  314,  52  X.  Y.  Supp.  1025;  Pape 
v.  Xew  York  &  H.  R.  Co.  74  App.  Div.  189,  77  X.  Y.  Supp.  725;  Africa  v.  Knox- 
ville,  70  Fed.  734;  People  v.  Phyfe,  48  X.  Y.  S.  R.  350,  20  X.  Y.  Supp.  4G1,  — hold- 
ing franchise  of  railroad  company  is  irrepealable  and  vested  property;  Avoca  v. 
Pittston,  J.  &  A.  Street  R.  Co.  7  Kulp,  476,  holding  city  cannot  revoke  street- 
railway  franchise  after  acceptance  and  exercise  of  privileges  granted;  Herzog 
v.  New  York  Elev.  R.  Co.  37  X.  Y.  S.  R.  568,  14  X.  Y.  Supp.  296,  Affirmed  in 
59  X.  Y.  S.  R.  343,  27  X.  Y.  Supp.  1034,  holding  municipal  consent  to  construction 
of  elevated  railway  vests  irrevocably  in  railroad  right  to  use  street  for  such 
purpose;  Wheeling  &  E.  G.  R.  Co.  v/Triadelphia,  58  W.  Va.  507,  4  L.R.A.(N.S.) 
331,  52  S.  E.  499,  holding  a  license  to  a  street  railway  company  might  be  for- 
feited by  failure  to  lay  tracks  in  prescribed  manner,  where  right  was  expressly 
given  to  make  such  a  forfeiture. 

Cited  in  footnotes  to  Milwaukee  Electric  R.  &  Light  Co.  v.  Milwaukee,  36 
L.  R.  A.  45,  which  denies  city's  right  to  prevent  relaying  of  street  railway  tracks 
by  company  whose  franchise  not  declared  forfeited ;  Detroit  Citizens'  Street  R.  Co. 
v.  Detroit,  26  L.  R.  A.  667,  which  holds  express  power  to  grant  irrevocable  consent 
to  use  street  for  street  railway  given  city  by  statute. 

Cited  in  notes   (9  L.  R.  A.  37)   on  forfeiture  of  corporate  franchises;    (8  L.  R 
A.  498)   on  forfeiture  and  dissolution  for  misuser  of  franchise. 
Reservation  of  power  to  amend  or  repeal  charter  or  franchise. 

Cited  in  Hudson  River  Teleph.  Co.  v.  Watervliet  Turnp.  &  R.  Co.  135  X.  Y.  408, 
17  L.  R.  A.  679,  31  Am.  St.  Rep.  838,  32  X.  E.  148,  holding  franchise  of  telephone 


2  L.R.A.  255]  L.  R.  A.  CASES  AS  AUTHORITIES.  264 

company  revocable  at  will  of  legislature;  Rochester  &  C.  Turnp.  Road  Co.  v. 
Joel,  41  App.  Div.  49,  58  N.  Y.  Supp.  346,  holding  statute  depriving  turnpike 
company  of  right  to  charge  tolls  previously  authorized  unconstitutional,  although 
power  of  repeal  reserved;  Citizens'  Street  R.  Co.  v.  City  R.  Co.  64  Fed.  651,. 
holding,  when  charter  of  corporation  repealed  under  power,  provision  must  be- 
made  for  disposition  of  property  without  confiscation. 

Distinguished  in  Lord  v.  Equitable  Life  Assur.  Soc.  194  N.  Y.  225,  22  L.R.A. 
(N.S.)  427,  87  N.  E.  443,  reversing  109  App.  Div.  262,  96  N.  Y.  Supp.  10,  which 
affirmed  47  N.  Y.  Supp.  198,  94  X.  Y.  Supp.  65,  holding  the  power  given  to  re- 
peal a  charter  does  not  give  a  right  to  repeal  a  special  franchise  where  acted. 
upon,  there  being  no  such  reservation  of  the  right. 

Effect   of    dissolution    of    corporation,    or    revocation   of    charter    on    fran- 
chises  and   other    rights   and   liabilities. 

Cited  in  Sandham  v.  Xye,  9  Misc.  546,  30  N.  Y.  Supp.  552,  holding  franchise 
of  street  railway  attaches  to  tracks,  and  not  to  right  of  corporation  to  exist ; 
Detroit  v.  Detroit  Citizens'  Street  R.  Co.  184  U.  S.  395,  46  L.  ed.  610,  22  Sup. 
Ct.  Rep.  410,  holding  corporation  capable  of  taking  extension  of  franchise  beyond 
limit  of  corporate  life;  Brown  v.  Schleier,  55  C.  C.  A.  478,  118  Fed.  984,  holding 
lease  to  corporation  not  invalid  because  for  term  outlasting  lessee's  corporate 
life;  Nelson  v.  Hubbard,  96  Ala,  248,  17  L.  R.  A.  379,  11  So.  428,  holding  statute 
providing  for  dissolution  of  corporation,  and  administration  of  assets  through 
trustee,  does  not  impair  obligation  of  contract ;  Opinion  of  the  Justices,  66  X.. 
H.  640,  33  Atl.  1076,  holding  property,  on  dissolution  of  corporation,  held  by 
stockholders  as  tenants  in  common;  People  ex  rel.  Xew  York  Underground  R.  Co. 
v.  Newton,  26  Jones  &  S.  463,  11  X.  Y.  Supp.  782,  holding  only  rights  of  third 
persons  vested  in  contracts  with  corporation  within  rule  that  legislature  cannot, 
destroy  by  directing  dissolution:  Berwind- White  Coal  Min.  Co.  v.  Ewart,  11  Misc. 
494,  32  N.  Y.  Supp.  716,  holding  legislature  may  repeal  or  amend  laws  pertaining 
to  business  corporations  organized  under  act  1875;  Dow  v.  Xorthern  R.  Co.  67 
N.  H.  37,  36  Atl.  510,  holding  corporate  property  cannot  be  diverted  from 
equitable  owners  by  escheat  or  reverter  upon  repeal  of  charter;  Xe\v  York  v_ 
Twenty-third  Street  R.  Co.  113  X.  Y.  317,  21  X.  E.  GO,  holding,,  under  right  to 
repeal  charter,  legislature  cannot  deprive  corporation  of  property,  or  annul 
contracts;  Woodward  v.  Central  Vermont  R.  Co.  ISO  Mass.  604,  62  X.  E.  1051. 
holding  reservation  of  right  to  amend  charter  does  not  authorize  requirement  that 
company  pay  debts  of  corporation  whose  property  it  acquires;  People  v.  Westehrs- 
ter  Traction  Co.  123  App.  Div.  690,  108  N.  Y.  Supp.  59,  holding  an  action  to 
procure  a  judgment  vacating  the  charter  of  a  corporation  does  not  work  a  con- 
fiscation of  its  rights  and  property;  Lorillard  v.  Clyde,  29  Jones  &  S.  435,  20 
X.  Y.  Supp.  433,  holding  defendant  corporation  was  not  by  reason  of  dissolution 
released  from  liability  on  a  contract  of  guaranty  of  dividends;  Re  Long  Acre 
Electric  Light  &  P.  Co.  51  Misc.  412,  101  N.  Y.  Supp.  460;  Re  Long  Acre  Electric 
Light  &  P.  Co.  188  N.  Y.  366,  80  N.  E.  1101,— holding  the  receiver  of  an  insol- 
vent corporation  might  properly  sell  its  franchises  at  public  auction;  Re  Long 
Island  Water  Supply  Co.  30  Abb.  X.  C.  52,  24  X.  Y.  Supp.  807,  holding  in  pro- 
ceedings by  city  under  special  act,  condemning  the  property  and  franchises  of  a 
water  company  organized  in  an  outlying  town  which  has  been  annexed  to  the 
city,  the  franchise  rights  of  such  company  survive  the  annexation  and  compen- 
sation must  be  made  as  for  an  existing  right;  Com.  ex  rel.  Atty.  Gen.  v.  Altoona, 
&  P.  Connecting  R.  Co.  15  Pa.  Dist.  R.  813,  holding  the  franchise  of  a  corporation 
to  maintain  and  operate  a  railroad  is  not  affected  by  quo  warranto  proceedings 
brought  to  forfeit  the  charter  of  the  corporation;  Farmers'  Loan  &  T.  Co.  v. 
Meridian  Waterworks  Co.  139  Fed.  669,  holding  the  rights  of  a  mortgagee  of  the 


265  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  255 

property  of  a  water  company  is  not  affected  by  a  decree  dissolving  the  franchise, 
entered  in  a  suit  begun  after  mortgage  given;  State  ex  rel.  Jackson  v.  Anheuser- 
Busch  Brewing  Asso.  70  Kan.  190,  90  Pac.  777,  on  the  rights  of  creditors  wpon 
corporate  assets  as  not  being  annihilated  by  the  dissolution  of  a  corporation  and 
the  seizure  of  its  franchises  by  state;  Heerwagen  v.  Crosstown  Street  Ry.  Co. 
179  X.  Y.  103,  71  N.  E.  729,  modifying  90  App.  Div.  301,  85  N.  Y.  Supp.  218, 
on  the  acquirement  by  corporation  of  property  rights  which  would  survive  its 
corporate  existence;  Cunningham  v.  Glauber,  133  App.  Div.  16,  117  X.  Y.  Supp. 
866  (dissenting  opinion),  on  right  to  maintain  action  for  tort  after  the  disso- 
lution of  the  corporation,  against  the  directors;  State  v.  Cantwell,  142  N.  C. 
617,  8  L.R.A.iX.S.)  508,  55  S.  E.  820,  9  A.  &  E.  Ann.  Cas.  141  (dissenting 
opinion),  on  right  of  legislature  to  alter  or  dissolve  corporation  as  not  affecting 
vested  rights;  Ott  v.  Odenwelder,  31  Pa.  Co.  Ct.  648,  on  dissolution  of  a  corpo- 
ration as  not  affecting  its  franchise;  Farmers'  Loan  &  T.  Co.  v.  Meridian  ^Yater- 
works  Co.  139  Fed.  668,  on  the  independence  of  a  receiver's  title  to  franchises 
and  the  existence  of  the  corporation  as  such;  Central  Trust  Co.  v.  Third  Ave.  R. 
Co.  186  Fed.  294,  holding  that  forfeiture  of  street  railway's  franchise  does  not 
affect  distribution  of  assets  among  creditors. 

Cited  in  notes  (9  L.R.A.  34)  on  dissolution  of  corporations;  (69  L.R.A.  125. 
155)  on  recovering  for  services  and  expenses  under  running  contract  with  cor- 
poration ended  by  its  insolvency  and  dissolution;  (134  Am.  St.  Rep.  309)  on 
acts  and  proceedings  of  dissolved  corporations. 

Distinguished  in  Xew  York  v.  Bryan,  196  X.  Y.  165,  89  X.  E.  467,  Reversing 
130  App.  Div.  064,  115  X.  Y.  Supp.  551,  holding  the  consent  of  municipality  to 
railroad  company,  to  construct  its  railroad  and  tunnel  in  city  streets,  prescribing 
no  time  limit  does  not  preserve  the  franchise  and  corporate  rights  from  forfeiture 
when  road  not  completed  within  the  time  required  by  the  act  under  which  or- 
ganized. 
Taxation  of  corporate  franchises. 

Cited  in  People  ex  rel.  Coney  Island  &  B.  R.  Co.  v.  Xeff,  15  App.  Div.  587.  44 
N.  Y.  Supp.  810,  holding,  notwithstanding  franchise  of  street  railway  is  property, 
it  is  not  subject  to  taxation;  S.tockton  Gas  &  Electric  Co.  v.  San  Joaquim 
County,  148  Cal.  320,  5  L.R.A.  (]ST.S.)  178,  83  Pac.  54,  7  A.  &  E.  Ann.  Cas.  511, 
holding  the  franchise  of  a  gas  and  electric  light  company  to  lay  pipes  and  con- 
duits or  erect  poles  and  supply  the  inhabitants  of  a  city  with  artificial  light, 
is  real  estate  in  the  nature  of  an  easement  in  streets  in  which  exerciseable  and 
is  taxable  only  in  county  where  situated;  People  ex  rel.  Xew  Amsterdam  Gas  Co. 
v.  State  Tax"  Comrs.  174  X.  Y.  442,  63  L.R.A.  892,  105  Am.  St.  Rep.  674,  67 
N.  E.  69,  holding  tangible  property  connected  with  special  franchises  is  an  in- 
separable part  thereof,  and  not  taxable  by  local  assessors;  People  ex  rel.  Metro- 
politan Street  R.  Co.  v.  State  Tax  Comrs.  79  App.  Div.  202,  80  N.  Y.  Supp.  85 
(dissenting  opinion),  on  necessity  of  assessing  special  franchise  and  tangible 
property  together. 

Cited  in  note  (57  L.R.A.  36,  37,  38)  on  taxation  of  corporate  franchisee. 

Distinguished  in  People  ex  rel.  Metropolitan  Street  R.  Co.  v.  State  Tax  Comrs. 
79  App.  Div.  197,  80  N.  Y.  Supp.  85,  holding  an  act  creating  special  franchises 
and  providing  for  the  assessment  by  State  Board  as  part  of  such  franchise,  tan- 
gible property  formerly  taxable  by  local  boards  was  constitutional. 
Taking  property  without  compensation. 

Cited  in  West  Jersey  Traction  Co.  v.  Camden  Horse  R.  Co.  52  N.  J.  Eq.  4^2. 
29  All.  333,  and  Brooklyn  Elev.  R.  Co.  v.  Brooklyn,  2  App.  Div.  99,  37  X.  Y. 
tSupp.  560,  holding  franchise  of  street  railway  cannot  be  abrogated  without  com- 
pensation; Lake  Shore  &  M.  S.  R.  Co.  v.  Smith,  173  U.  S.  690,  43  L.  ed.  861,  19 


2  L.R.A.  255]  L.  R.  A.  CASES  AS  AUTHORITIES.  2G(J 

Sup.  Ct.  Rep.  565,  holding  state  cannot  take  away  or  destroy  property,  or  annul 

contracts  of  railroad  with   third  persons;   Manhattan  R.   Co.  v.  New  York,   8!> 

Hun,  432,  35  X.  Y.  Supp.  505,  holding  city  cannot  compel  alteration  in  elevated 

railway  station,  to  permit  crossing  of  viaduct,  without  compensating  railway  for 

expense. 

Statutes    impii  iri  nu    obligation   of   contract. 

Cited  in  People  ex  rel.  Reynolds  v.  Buffalo,  140  X.  Y.  307,  37  Am.  St.  Rep.  563, 
35  X.  E.  485,  holding  property  right  acquired  by  statute  cannot  be  devested  by 
repeal;  Re  Long  Island  Water  Supply  Co.  30  Abb.  X.  C.  52,  24  X.  Y.  Supp.  815, 
holding  attempt  to  avoid  corporate  franchise  by  legislation  impairs  force  and 
effect  of  contract;  People  ex  rel.  Reynolds  v.  Buffalo,  48  X.  Y.  S.  R.  635,  holding 
award  under  act  for  relief  of  relator  not  affected  by  subsequent  repeal  of  act; 
People  ex  rel.  Long  Island  v.  Dohling,  6  App.  Div.  90,  39  X.  Y.  Supp.  765,  holding 
right  under  act  authorizing  religious  corporation  to  acquire  and  hold  lands  exempt 
from  taxation  cannot  be  impaired  by  subsequent  legislation  repealing  exemption : 
Roddy  v.  Brooklyn  City  &  X.  R.  Co.  32  App.  Div.  313,  52  X.  Y.  Supp.  1025, 
holding  right  of  railroad  to  lease  tracks  cannot  be  impaired  in  hands  of  lessee, 
either  by  legislation  or  change  in  Constitution,  except  under  right  of  eminent 
domain;  Boswell  v.  Security  Mut.  L.  Ins.  Co.  193  X.  Y.  474,  19  L.R.A.(X.S.) 
949,  86  X.  E.  532,  Modifying  119  App.  Div.  728,  104  X.  Y.  Supp.  130,  holding  the 
legislature  had  no  power  to  reduce  the  compensation  of  an  agent  of  insurance 
company  under  a  contract  with  the  company  for  a  term  of  years  part  of  which 
had  yet  to  run;  People  ex  rel.  Delaware  &  H.  Canal  Co.  v.  Public  Service  Com- 
mission, 140  App.  Div.  843,  125  X.  Y.  Supp.  1000,  holding  that  rate  which  statute 
authorizes  railroad  to  charge  may  be  changed  by  public  service  commission. 

Cited  in  footnotes  to  International  Bldg.  &  L.  Asso.  v.  Hardy,  24  L.  R.  A.  284, 
which  denies  legislative  power  to  change  remedy  for  enforcing  trust  deed;  Kirk- 
man  v.  Bird,  58  L.  R.  A.  670,  which  sustains,  as  to  prior  obligations,  statute 
exempting  wages  for  sixty  days  preceding  levy;  Miners'  &  Merchants'  Bank  v. 
Snyder,  68  L.R.A.  312,  which  holds  corporate  creditor's  contract  rights  not  im- 
paired by  statute  requiring  all  creditors  to  unite  in  one  suit  against  all  stock- 
holders'for  equitable  distribution  of  liability  fund  among  creditors. 

Distinguished  in  People  ex  rel.  Schurz  v.  Cook,  148  U.  S.  410,  37  L.  ed.  503, 
13  Sup.  Ct.  Rep.  645,  holding  statute  imposing  tax  on  corporation  organized  to 
purchase    property    pursuant    to    authority    previously    conferred    by    legislature 
violates  no  contract. 
Retroactive    operation    of    taxing:   and   other    statutes. 

Cited  in  Geneva  &  W.  R.  Co.  v.  Xew  York  C.  &  H.  R.  R.  Co.  163  X.  Y.  232,  57 
X.  E.  498,  holding  procedure  by  which  street  railway  may  acquire  right  to  cross 
steam  railroad  not  affected  by  statute  enacted  after  commencement  of  proceed- 
ings; Walker  v.  Walker,  155  X.  Y.  82,  49  X.  E.  663,  holding  statute  authorizing 
change  in  decree  of  divorce  as  to  alimony,  after  final  judgment,  not  retroactive; 
Re  Delaware  &  H.  Canal  Co.  129  X.  Y.  112,  29  X.  E.  237,  holding  statute  pro- 
viding fraudulent  or  defective  assessment  for  taxation  may  be  vacated  or  re- 
duced by  county  judge,  applicable  to  future  assessments  only;  Mahoney  v.  Bern- 
hardt,  27  Misc.  345,  58  X.  Y.  Supp.  748,  holding  statute  requiring  action  to 
enforce  individual  liability  of  stockholders  of  dissolved  bank  tj  be  brought  by 
permanent  receiver  not  applicable  to  action  previously  bogun  by  creditors; 
Barnes  v.  Arnold,  23  Misc.  208,  51  X.  Y.  Supp.  1109,  holding  banking  law,  1892, 
making  bank  stockholders  individually  liable  for  debts  of  corporation,  not  appli- 
cable to  debts  previously  contracted;  People  ex  rel.  Provident  Sav.  Life  A-^tir. 
Soc.  v.  Miller,  179  X.  Y.  230,  71  X.  E.  930,  holding  a  franchise  tax  imposed  upon 


267  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  255 

domestic  life  insurance  companies,  on  the  gross  amount  of  premiums  received 
during  the  preceding  year,  does  not  impose  a  tax  on  premiums  derived  from 
contracts  made  prior  to  the  time  the  statute  took  effect;  Baldwin  v.  Aberdeen, 
23  S.  D.  636,  26  L.R.A.  (N.S.)  120,  123  N.  W.  80,  on  laws  to  be  construed  as 
prospective  unless  clearly  retrospective;  Baldwin  v.  Aberdeen,  23  S.  D.  640, 
26  L.R.A.  (N.S.)  120,  123  N.  W.  80,  holding  that  statute  prohibiting  negligence 
action  against  city  unless  notice  of  time,  place  and  cause  of  injury  is  given 
within  sixty  days  is  not  retroactive. 

Cited  in  footnote  to  Jones  v.  German  Ins.  Co.  46  L.  R.  A.  860,  which  sustains 
statute  shortening  time  of  insurance  company's  immunity  from  suit  without 
extending  period  of  limitations. 

Distinguished  in  Re  Brooklyn,  73  Hun,  506,  26  N.  Y.  Supp.  198,  holding  fran- 
chise of  water  company  not  increased  by  annexation  act,  requiring  purchase 
of  property  before  annexing  city  can  extend  waterworks  into  annexed  territory. 
Due  process  of  law. 

Cited  in  Re  Muehlfeld,  16  App.  Div.  403,  45  N.  Y.  Supp.  16,  holding  assignee  of 
corporation  not  required  to  deliver  property  to  receiver  appointed  in  proceeding 
to  which  he  was  not  party;  Brooks  v.  Tayntor,  17  Misc.  539,  40  N.  Y.  Supp.  445, 
holding  statute  authorizing  claimant  of  unpaid  purchase  money  for  monument 
to  remove  and  sell  same  at  auction,  without  legal  process  or  hearing,  uncon- 
stitutional ;  People  ex  rel.  Nisbet  v.  Amsterdam,  90  Hun,  495,  36  N.  Y.  Supp.  59, 
holding  investigation  of  claim  against  city  by  committee  designated  by  law,  with- 
out affording  claimant  opportunity  to  participate,  not  due  process  of  law;  Buf- 
falo v.  Chadeayne,  27  N.  Y.  S.  R.  63,  7  N.  Y.  Supp.  501,  Affirmed  134  N.  Y.  165, 
31  N.  E.  443,  holding  rescission,  after  work  commenced,  and  without  notice,  of 
permit  to  build  frame  houses  within  fire  limit,  is  taking  property  without  due 
process  of  law. 

Cited  in  footnote  to  Carleton  v.  Rugg,  5  L.  R.  A.  193,  which  holds  statute 
authorizing  injunction  against  liquor  nuisance  does  not  unlawfully  deprive  of 
property  or  privileges. 

Cited  in  notes  (5  L.  R.  A.  359;  11  L.  R.  A.  224;  13  L.  R.  A.  68)  on  due  process 
of  law;  (26  Am.  St.  Rep.  475)  on  statute  giving  one  person's  property  to  another. 
Appointment  of  receiver. 

Cited  in  Golden  v.  Fifth  Judicial  Dist.  Ct.  31  Nev.  264,  101  Pac.  102],  hold- 
ing that  directors  of  bank  must  be  made  parties  to  proceeding  by  stockholder  for 
appointment  of  receiver. 

Cited  in  notes  (6  L.R.A.  792)  on  appointment  of  receivers  in  general;    (72  Am. 
St.  Rep.  60)   as  to  when  appointment  of  receiver  is  proper. 
Powers  of  municipal  corporations. 

Cited  in  Mt.  Hope  Cemetery  v.  Boston,  158  Mass.  512,  35  Am.  St.  Rep.  515,  33 
N.  E.  695,  holding  cities  may  have  private  ownership  of  property  which  cannot 
be  wholly  controlled  by  state  government;  People  ex  rel.  Geneva  v.  Geneva,  W. 
S.  F.  &  C.  L.  Traction  Co.  112  App.  Div.  585,  98  N.  Y.  Supp.  719,  holding  a  mu- 
nicipality might  require  a  corporation  which  has  been  granted  a  franchise  to 
lay  its  tracks  in  streets,  to  change  its  line  of  tracks  when  necessary  for  street 
improvements. 

Cited  in  note  (12  Am.  St.  Rep.  293)  on  power  of  state  or  municipality  fo 
authorize  railroad  in  street. 

Distinguished  in  New  Orleans,  City  &  Lake  R.  Co.  v.  New  Orleans,  44  La.  Ann. 
733,  11  So.  78,  holding  city  without  power  to  make  exclusive  grant  of  right  to 
use  streets  for  railway,  unless  expressly  conferred  by  legislature;  Detroit  v.  De- 
troit City  R.  Co.  56  Fed.  888.  holding  city  council  cannot  grant  vested  right  to 
build  and  operate  street  railway. 


2  L.R.A.  255]  L.  R.  A.  CASES  AS  AUTHORITIES.  268 

Legislative   control  of Municipal   corporations. 

Cited  in  McSurely  v.  McGrew,  140  Iowa,  370,  132  Am.  St.  Rep.  248,  118  X.  W. 
415,  holding  that  neither  a  county  nor  its  citizens  had  such  a  vested  interest  in 
the  revenues  of  the  county  as  to  give  a  right  to  complaint  of  a  legislative  act 
relieving  a  county  treasurer  from  liability  on  his  bonds  for  the  loss  of  county 
funds  without  his  fault. 
Private  corporations. 

Cited  in  Hinckley  v.  Schwarzschild  &  S.  Co.  107  App.  Div.  474,  95  X.  Y.  Supp. 
357,  holding  a  legislative  act  authorizing  a  corporation  to  issue  preferred  stock 
with  the  consent  of  two  thirds,  instead  of  by  the  unanimous  consent  of  its  mem- 
bers was  constitutional;  Colby  v.  Equitable  Trust  Co.  124  App.  Div.  266,  108 
N.  Y.  Supp.  978,  holding  legislature  might  authorize  the  merger  of  corporations 
where  it  works  no  confiscation  of  property;  McKee  v.  Chautauqua  Assembly, 
124  Fed.  812,  holding  a  stock  holder  could  not  complain  of  the  amendment  of  the 
charter  of  the  corporation  by  the  legislature  where  no  rights  destroyed  there- 
by; Richards  v.  Citizens'  Water  Supply  Co.  140  App.  Div.  218,  125  X. 
Y.  Supp.  116,  holding  that  water  company,  organized  under  statute  giving 
it  power  to  lay  pipes  in  adjoining  town,  must  obtain  consent  of  such  town, 
when  such  consent  is  made  obligatory  by  subsequent  amendment  of  statute: 
Westminster  Presby.  Church  v.  Presbytery  of  New  York,  142  App.  Div.  876, 
127  N.  Y.  Supp.  836,  holding  it  within  discretion  of  legislature  as  to  how  it  will 
exercise  its  authority  to  dissolve  religious  corporation  and  regulate  administra- 
tion of  property  dedicated  in  perpetuity  to  religious  uses. 
Constitutional  exercise  of  police  power. 

Cited  in  Ives  v.  South  Buffalo  R.  Co.  201  X.  Y.  318,  34  L.R.A.(X.S-)  184.  94 
N.  E.  431,  Ann.  Cas.  1912B,  156,  holding  void,  workmen's  compensation  in  dan- 
gerous employments  act. 

Distinguished  in  Tenement  House  Department  v.  Moeschen,  179  X.  Y.  334,  70 
L.R.A.  710,  103  Am.  St.  Rep.  910,  72  N.  E.  231,  1  A.  &  E.  Ann.  Cas.  439,  holding 
a  provision  requiring  school  sinks  in  existing  tenement  houses  in  cities  of  first 
class  to  be  replaced  by  individual  water  closets  was  a  proper  and  constitutional 
exercise  of  the  police  power. 
Sufficiency  of  expression  of  subject-matter  of  act  in  title. 

Cited  in  Berges  v.  Milwaukee  County,  116  Wis.  197,  93  X.  W.  44,  holding  an 
act  providing  that  in  counties  of  a  certain  population  the  office  of  register  of 
deeds  should  be  a  salaried  office  and  Avhen  such  act  should  go  into  effect  did  not 
conflict  with  constitutional  provision  that  act  should  not  embrace  more  than  one 
subject  which  shall  be  expressed  in  the  title  which  was  "An  act  to  make  the  reg- 
ister of  deeds  office  of  ...  county  a  salaried  office;"  Economic  Power  & 
Constr.  Co.  v.  Buffalo,  128  App.  Div.  883,  112  X.  Y.  Supp.  1327  (dissenting 
opinion),  on  the  unconstitutional ity  of  act  attempting  to  confer  a  property 
right  in  private  corporation  without  expressing  the  same  in  the  title. 

2  L.  R.  A.  270,  POWELL  v.  OREGONIAX  R.  CO.  13  Sawy.  535. 
Stockholders'   liability   for  corporate  acts. 

Cited  in  Kelly  v.  Clark,  21  Mont.  343,  42  L.  R.  A.  635,  69  Am.  St.  Rep.  668, 
53  Pac.  959,  holding  stockholders  liable  for  tortious  acts  of  company  after  judg- 
ment against  it,  coupled  with  insolvency;  Wheatley  v.  Glover,  125  Ga.  720.  54 
S.  E.  626,  on  the  collusiveness  of  a  judgment  on  'behalf  of  creditor  against 
corporation  on  stockholder  thereof. 

Cited  in  footnotes  to  Rider  v.  Fritchey,  15  L.  R.  A.  513,  which  holds  stock- 
holder assigning  to  insolvent  person  not  relieved  from  liability;  Powell  v.  Ore- 


269  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  277 

gonian  R.   Co.  3  L.  R.  A.  201,  which  holds  judgment  against  corporation  con- 
clusive against  stockholder. 

Cited  in  note  (22  L.R.A.(N.S.)  258)  as  to  whether  statutory  liability  for  debts 
of  corporation  includes  liability  for  torts. 

Disapproved  in  Savage  v.  Shaw,  395  Mass.  573,  122  Am.  St.  Rep.  212,  81  X. 
E.  303,  12  A.  &  E.  Ann.  Cas.  806,  holding  a  judgment  against  a  street  railroad 
company  in  an  action  of  tort  for  personal  injuries  is  not  a  debt  for  which  directors 
are  liable,  under  the  statutory  liability. 
"Debt"    defined. 

Cited  in  Scarritt  Estate  Co.  v.  J.  F.  Schmelzer  &  Sons  Arms  Co.  110  Mo.  App. 
412,  86  S.  W.  489,  on  the  term  "debt"  as  not  including  a  claim  for  unliquidated 
damages. 

2  L.  R.  A.  273,  FARMERS  DEPOSIT  NAT.  BANK  v.  PENN  BANK,  123  Pa. 

283,  16  Atl.  761. 
Set-off  to   claims   of  bank. 

Cited  in  Salladin  v.  Mitchell,  42  Neb.  863.  61  N.  W.  127,  holding  certificate 
of  deposit  may  be  set  off  against  mortgagee  held  by  assignee  of  insolvent  bank; 
Stone  v.  Dodge,  96  Mich.  516.  21  L.  R.  A.  284,  56  N.  W.  75,  holding  certificate  of 
deposit  of  debtor  of  insolvent  bank  could  not  be  set  off  against  action  by  re- 
ceiver; Thompson  v.  Union  Trust  Co.  130  Mich.  510,  97  Am.  St.  Rep.  494,  90 
X.  W.  294,  holding  deposit  may  be  set  off  against  depositor's  notes  to  insolvent 
bank,  not  due  at  time  of  insolvency. 

Cited  in  footnotes  to  Grissom  v.  Commercial  Nat.  Bank,  3  L.  R.  A.  273,  which 
holds  bank  has  no  right  to  pay  to  third  party  note  made  by  depositor;  Henry  v. 
Allen.  36  L.  R.  A.  658,  which  holds  cashier's  check  negotiable. 
Set-off   iiuniii-t    receiver. 

Cited  in  Cooper  v.  Plymouth  Twp.  School  Dist.  39  Pa.  Super.  Ct.  485,  holding 
chose  in  action  passes  to  a  receiver  subject  to  equitable  right  to  set  off  existing 
debts  at  time  of  his  appointment;  Kuebler  v.  Haines,  229  Pa.  279,  78  Atl.  141, 
holding  that  defendant,  in  action  by  receiver  for  goods  sold  by  corporation,  may 
set  off  his  damages  from  failure  of  corporation  to  deliver  all  the  goods. 

Annotation  cited  in  Brown  v.  Pegram,  149  Fed.  521,  holding  unliquidated 
claim  may  be  basis  of  equitable  set  off  against  judgment. 

Cited  in  note  in  (47  Am.  St.  Rep.  143)  on  set-off  by  or  against  bank  receiver. 

2  L.  R.  A.  277,  TURNER  v.  STEPHEXSON,  72  Mich.  409,  40  N.  W.  735. 
Adverse  possession  of  part  for  all  of  land. 

Cited  in  Walsh  v.  Wheelwright,  96  Me.  190,  52  Atl.  649,  holding  adverse  occu- 
pation of  part  of  land  must  be  shown  to  extend  that  occupation  to  adjoining 
land;  Henry  v.  Brown,  143  Ala.  456,  39  So.  325,  holding  an  entry  and  occupa- 
tion on  a  tract  of  land  which  the  vendor  had  a  right  to  convey  would  not  operate 
as  a  disseisin  of  the  rightful  owner  of  another  also  conveyed  by  such  vendor  with- 
out right;  Lang  v.  Osceola  Consol.  Min.  Co.  145  Mich.  374,  108  N.  W.  678; 
Schmitt  v.  Traphagen,  73  N.  J.  Eq.  402,  133  Am.  St.  Rep.  739,  69  Atl.  189;  Rober- 
son  v.  Downing  Co.  120  Ga.  839,  102  Am.  St.  Rep.  128,  48  S.  E.  429,  1  A.  &  E. 
Ann.  Cas.  757, — on  actual  possession  of  part  of  land  as  constructive  possession  of 
all  of  it. 

Distinguished  in  Clark  v.  Campau,  92  Mich.  578,  52  N.  W.  1026,  holding  adverse 
possession  by  occupation  of  part  of  land  shown. 


2  L.R.A.  278]  L.  R.  A.  CASES  AS  AUTHORITIES.  270 

2  L.  R,  A.  278,  ST.  LOUIS  v.  BELL  TELEPH.  CO.  96  Mo.  623,  9  Am.  St.  Rep. 

370,  10  S.  W.  197. 
Power  of  city  to  prescribe  rates  for  public-service  corporations. 

Cited  in  Re  Pryor,  55  Kan.  729,  29  L.  R.  A.  400,  49  Am.  St.  Rep.  280,  41  Pae. 
958,  holding  ordinance  fixing  maximum  gas  rates  to  private  consumers  invalid; 
State  ex  rel.  Wisconsin  Teleph.  Co.  v.  Sheboygan,  111  Wis.  39,  86  X.  W.  657, 
holding  power  to  regulate  rates  of  telephone  company  is  not  included  in  power 
to  regulate  use  of  streets;  Wabaska  Electric  Co.  v.  Wymore,  60  Neb.  202,  82 
N.  W.  626,  holding  city  of  second  class  without  authority  to  regulate  electric 
light  charges  to  private  consumers  when  not  expressly  conferred;  Crosby  v. 
Montgomery,  108  Ala.  504,  18  So.  723,  holding  ordinance  fixing  water  rates  under 
power  granted  subsequent  to  contract  with  water  company  does  not  take  away 
vested  right,  nor  deprive  of  due  process  of  law;  Cincinnati,  H.  &  D.  R.  Co.  v. 
Bowling  Green,  57  Ohio  St.  345,  41  L.  R.  A.  427,  49  N.  E.  121,  holding  electric 
lighting  company  with  franchise  from  town  cannot  arbitrarily  fix  rates  for 
lighting;  Jacksonville  v.  Southern  Bell  Teleph.  &  Teleg.  Co.  57  Fla.  381,  49  So. 
509,  holding  a  city  could  not  fix  the  maximum  rates  to  be  charged  by  a  telephone 
company  organized  under  an  ordinance  giving  no  such  right  to  city,  under  general 
power  to  pass  ordinances  for  the  health,  convenience  and  safety  of  citizens; 
State  ex  rel.  Garner  v.  Missouri  &  K.  Teleph.  Co.  189  Mo.  100,  88  S.  W.  41,  holding 
a  city  could  not  enforce  a  regulation  fixing  telephone  rates  where  no  delegation 
of  such  power  was  made. 

Cited  in  footnote  to  Charles  Simon's  Sons  Co.  v.  Maryland  Teleph.  &  Teleg. 
Co.  63  L.R.A.  727,  which  upholds  power  of  municipality  to  require  telephone 
company  to  furnish  service  at  specified  rates. 

Cited  in  notes  (5  L.  R.  A.  161)  on  state  regulation  of  telephone  companies; 
(33  L.  R.  A.  181)  on  legislative  power  to  fix  tolls,  rates,  or  prices  of  public- 
service  corporations;  (31  L.R.A.  803)  on  police  regulation  of  electric  companies; 
(33  L.R.A. (N.S.)  760)  on  power  of  municipality,  apart  from  contract,  to  regulate 
public  service  rates;  (10  Am.  St.  Rep.  131,  135)  on  power  of  city  to  regulate 
charge  for  use  of  telephone. 
Charter  limitations  of  cities. 

Cited  in  Nevada  use  of  Gilfillan  v.  Eddy,  123  Mo.  558,  27  S.  W.  471 ;  State  ex  rel. 
St.  Louis  Underground  Service  Co.  v.  Murphy,  134  Mo.  574,  34  L.  R.  A.  374,  56 
Am.  St.  Rep.  515,  34  S.  W.  51  (supplemental  opinion)  ;  Markley  v.  Mineral  City, 
58  Ohio  St.  439,  65  Am.  St.  Rep.  776,  51  N.  E.  28;  Union  Depot  R.  Co.  v.  South- 
ern R.  Co..  105  Mo,  575,  16  S.  W.  920,  —  holding  city  can  exercise  only  such 
powers  as  are  expressly  granted,  necessarily  implied,  or  essential  to  declared 
purposes  of  corporation;  State  ex  rel.  Peck  v.  Hermann,  84  Mo.  App.  10,  holding 
charter  provisions  for  security  to  city  for  works  of  construction  cannqt  be 
changed  by  ordinance;  Plattsburg  v.  Trimble,  46  Mo.  App.  461,  holding  city  of 
fourth  class  may  impose  penalty  upon  keeper  of  billiard  table  for  permitting 
minor  to  play  without  consent  of  parents. 
Construction  of  powers. 

Cited  in  Knapp  v.  Kansas  City,  48  Mo.  App.  492,  holding  reasonable  doubt 
concerning  existence  of  power  to  be  resolved  against  corporation;  Houstonia  v. 
Grubbs,  80  Mo.  App.  437,  holding  doubt  as  to  authority  to  create  tax  lien  upon 
abutting  property  should  be  resolved  against  lien :  St.  Paul  v.  Chicago,  M.  &  St. 
P.  R.  Co.  63  Minn.  346,  34  L.  R.  A.  188,  65  N.  W.  649,  holding  doubt  as  to  power 
to  grant  privileges  in  streets  to  be  resolved  against  municipality;  Tacoma  Gas  & 
Electric  Light  Co.  v.  Tacoma,  14  Wash.  291,  44  Pac.  655,  holding  delegation  of 
power  will  not  be  presumed  in  favor  of  municipal  corporation,  unless  necessary 


271  L.  R..  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  278 

to  corporate  existence;  Carthage  v.  Carthage  Light  Co.  97  Mo.  App.  24,  70  S.  W. 
936,  holding  authorization  of  city  to  grant  franchise  to  light  streets  by  gas  does 
not  give  power  to  grant  electric  lighting  franchise;  St.  Louis  v.  J.  E.  Kaine  & 
Bro.  Real  Estate  Co.  180  Mo.  321,  79  S.  W.  140,  holding  a  city  could  not  require 
agents  of  owners  of  buildings  to  remove  them  at  their  own  expense  because 
given  power  to  regulate  the  business  of  real  estate  agents  or  require  owners  to 
do  so  at  their  own  expense;  State  ex  rel.  St.  Louis  Transfer  Co.  v.  Clifford,  228 
Mo.  207,  ]28  S.  W.  755,  holding  an  attempt  of  municipal  corporation  to  regulate 
the  width  of  tires  of  all  vehicles  according  to  a  fixed  schedule,  under  an  ordi- 
nance giving  the  right  to  regulate  the  width  of  tires  of  vehicles  for  heavy  trans- 
portation is  invalid;  Chillicothe  ex  rel.  Meek  v.  Henry,  136  Mo.  App.  474.  118 
S.  \\.  486;  St.  Louis  v.  King,  226  Mo.  345,  27  L.R.A.  (X.S.)  611,  126  S.  W.  495,— 
on  courts  as  resolving  any  reasonable  doubt  of  the  existence  of  a  power  against 
the  corporation. 
Reg-nlatiiig-  nst-  •  of  streets. 

Cited  in  State  ex  rel.  St.  Louis  Underground  Service  Co.  v.  Murphy,  134  Mo. 
561,  34  L.  R.  A.  374,  56  Am.  St.  Rep.  515,  34  S.  W.  51,  holding,  under  power  to 
icnulate  streets,  city  may  permit  erection  of  telegraph  and  telephone  poles;  State 
ex  rel.  National  Subway  Co.  v.  St.  Louis,  145  Mo.  588,  42  L.  R.  A.  126,  46  S.  W. 
981,  holding  use  of  street  for  telephone  poles  not  private  use;  St.  Louis  v.  West- 
ern U.  Teleg.  Co.  149  U.  S.  471,  37  L.  ed.  814,  13  Sup.  Ct.  Rep.  990,  holding  city 
of  St.  Louis  may  impose  upon  telegraph  company  charge  for  use  of  street  for 
poles;  State  ex  rel.  National  Subway  Co.  v.  St.  Louis,  145  Mo.  574,  42  L.  R.  A. 
126,  49  S.  W.  981,  holding  city  has  no  concern  with  right  of  telephone  company  to 
charge  tolls,  or  making  of  agreements  with  other  companies  for  the  use  of  its 
subway. 

Cited  in  note   (24  L.  R.  A.  722)   on  telegraph  or  telephone  poles  as  additional 
burden  on  highway. 
—  Street  Improvements. 

Cited  in  Guinotte  v.  Egelhoff,  64  Mo.  App.  367,  holding  proceedings  for  im- 
provement of  street  at  expense  of  abutting  property  must  strictly  conform  to 
statute;  Sedalia  Gaslight  Co.  v.  Mercer,  48  Mo.  651,  holding  ordinance  provid- 
ing indemnity  fund  from  sewer  tax  for  payment  of  damages  from  sewer  con- 
struction not  within  powers;  Kansas  City  v.  Bacon,  147  Mo.  318,  48  S.  W.  860 
(dissenting  opinion),  majority  holding  Kansas  City  has  power  to  condemn  land 
for  park,  and  assess  cost  to  district. 
Revisory  power  of  courts  over  ordinances. 

Cited  in  Tarkio  v.  Cook,  120  Mo.  9,  42  Am.  St.  Rep.  678,  25  S.  W.  202,  holding 
•ordinances  subject  to  revision  in  respect  to  existence  of  power,  and  whether  rea- 
sonably exercised. 
"User  of  power  conferred  on  public  service  corporation. 

Cited  in   Steinman   v.   Edison   Electric   Illuminating   Co.   17   Pa.  Dist.  R.  461, 
24  Lane.  L.  Rev.  334,  holding  the  power  conferred  upon  an  electric  light  com- 
pany to  fix  prices  does  not  give  it  the  right  to  fix  prices  arbitrarily  and  discrim- 
inate between  customers. 
Delegation  of  powers  by  state. 

Cited  in  Jones  v.  North  Georgia  Electric  Co.  125  Ga.  628,  6  L.R.A.(N.S.)  128, 
54  S.  E.  85,  5  A.  &  E.  Ann.  Cas.  526.  holding  state  might  properly  under  certain 
conditions,  confer  upon  the  owners  of  water  power  the  right  of  eminent  domain; 
Home  Teleph.  &  Teleg.  Co.  v.  Los  Angeles,  155  Fed.  562,  holding  state  had 
power  to  delegate  to  municipal  corporations  -the  power  to  regulate  charges  for 
.telephone  service. 


2  L.R.A.  278]  L.  R.  A.  CASES  AS  AUTHORITIES.  272 

Cited  in  note  (46  L.  ed.  U.  S.  1144)  on  legislative  power  to  regulate  telephone 
rates. 
Implied  powers. 

Cited  in  Re  Sanford,  236  Mo.  692,  139  S.  W.  376,  holding  that  power  of  county 
board  of  equalization  to  punish  witness  for  contempt  is  implied  from  statutory 
power  to  subpoena  witnesses. 

2  L.  R.  A.  281,  GULF,  C.  &  S.  F.  R.  Co.  v.  SMITH,  72  Tex.  122,  9  S.  W.  865. 
What  covenants  run   with   land. 

Cited  in  Ft.  Wayne  Water  Power  Co.  v.  Allen  County,  24  Ind.  App.  519,  57 
N.  E.  146,  holding  duty  imposed  upon  trustees  to  keep  bridges  in  repair  over 
canal  not  covenant  running  with  land;  Ruddick  v.  St.  Louis,  K.  &  N.  W.  R.  Co. 
116  Mo.  30,  38  Am.  St.  Rep.  570,  22  S.  W.  499,  holding  covenants  in  deeds  to 
railroad  to  furnish  passes,  coupled  with  condition  of  forfeiture,  run  with  the 
land;  Sexauer  v.  Wilson,  136  Iowa,  359,  14  L.R.A.(N.S.)  188,  113  N.  W.  941, 
15  A.  &  E.  Ann.  Cas.  54,  holding  an  agreement  to  perpetually  maintain  a  divi- 
sion fence  is  a  covenant  running  with  the  land. 

Cited  in  footnotes  to  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes 
as  running  with  the  land  agreement  for  party  wall,  expressly  declared  to  run 
with  land;  Doty  v.  Chattanooga  Union  R.  Co.  48  L.  R.  A.  160,  which  holds  cove- 
nant for  running  certain  trains  binding  on  subsequent  purchaser  of  railroad; 
Brown  v.  Southern  Pacific  Co.  47  L.  R.  A.  409,  which  holds  covenant  by  grantors 
for  railroad  to  build  fences,  or  not  hold  company  for  injury  to  stock,  personal 
only. 

Cited  in  notes  (82  Am.  St.  Rep.  667,  678)  on  what  covenants  run  with  the  hind; 
(14  L.R.A.(N.S.)  190)  on  necessity  of  word  "assigns"  to  make  covenant  as  to 
thing  not  in  esse  run  with  land. 

2  L.  R.  A.  282,  INNIS  v.  CEDAR  RAPIDS,  I.  F.  &  N.  W.  R.  CO.  76  Iowa,  165, 

40  N.  W.  701. 
When  nuisance  abated. 

Cited  in  Fogg  v.  Nevada  C.  O.  R.  Co.  20  Nev.  435,  23  Pac.  840,  holding  public 
nuisance  in  construction  of  railroad  will  not  be  abated,  unless  special  damage  to 
complainant  shown;  Redway  v.  Moore,  3  Idaho,  320,  29  Pac.  104,  holding  house 
of  prostitution  will  not  be  enjoined,  unless  special  damage  shown;  Campbell  v. 
Jackman  Bros.  140  Iowa,  485,  27  L.R.A.  (X.S.)  292,  118  X.  W.  755,  holding  courts 
would  not  enjoin  the  sale  of  intoxicating  liquors  as  a  nuisance  where  the  seller 
has  complied  with  all  the  conditions  regulating  such  sale;  Swain  v.  Chicago.  B. 
&  Q.  R.  Co.  116  111.  App.  538,  holding  that  steamship  company  cannot  recover 
damages  against  railroad  for  obstruction  of  river  by  bridge. 

Cited  in  footnote  to  State  v.  Stark,  54  L.  R.  A.  910,  which  denies  right  of 
private  person  to  abate  liquor  nuisance  without  process  of  law. 

Cited  in  notes  (9  L.  R.  A.  715)  on  abatement  of  nuisance  by  action;  (6  L.  R. 
A.  255)  on  improper  use  of  street  by  railroad  company;  (59  L.  R.  A.  83)  on 
right  to  obstruct  or  destroy  rights  of  navigation;  (3  L.R.A. (X.S.)  1127)  on 
private  right  of  action  for  obstruction  of  navigable  stream. 

2  L.  R.  A.  284,  RICHMOND  &  D.  R.  CO.  v.  REIDSVILLE,  101  N.  C.  404,  8 

S.  E.  124. 
Appeal. 

Cited  in  Thornton  v.  Lambeth,  103  N.  C.  89,  9  S.  E.  432,  dismissing  appeal,  with 
opinion  on  new  matter  introduced. 


273  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  2S9' 

Power   of    inn  n  i«-i  !'••<  I ' '  >    to   require    I  i<-.- n  -<•-.. 

Cited  in  footnotes  to  Perry  v.  Salt  Lake  City,  11  L.  R.  A.  440,  which  holds  city 
council  has  wide  discretion  as  to  granting  of  licenses;  Hoefling  v.  San  Antonio, 
16  L.  R.  A.  608,  which  holds  city  cannot  levy  occupation  tax  on  persons  not 
similarly  taxed  by  state;  State  ex  rel.  Beek  v.  Wagener,  46  L.  R.  A.  442,  which. 
sustains  statute  regulating  business  of  commission  merchants  handling  agricul- 
tural products;  State  v.  Robinson,  6  L.  R.  A.  339,  which  construes  charter  pro- 
vision as  to  licensing  hackmen,  etc.,  as  not  applying  to  one  hiring  rigs  to  per- 
sons using  same;  Knoxville  &  O.  R.  Co.  v.  Harris,  53  L.  R.  A.  921,  which  holds 
exemption  from  privilege  tax  not  included  in  exemption  from  ad  valorem  tax. 

Cited  in  notes  (4  L.  R.  A.  810)  on  license  fees,  not  taxes;  (6  L.  R.  A.  509; 
9  L.  R.  A.  787)  on  license  of  occupations  and  privileged  taxes;  (60  L.  R.  A.  340, 
346,  355)  on  constitutional  equality  in  the  United  States  in  relation  to  corporate- 
taxation;  (60  L.  R.  A.  687)  on  corporate  taxation  and  the  commerce  clause. 

2  L.  R,  A.  285,  BOWLING  v.  BURTON,  101  N.  C.   176,  7  S.  E.  701. 
Ri^htM  passing  with  title. 

Cited  in  Scheel  v.  Alhambra  Min.  Co.  79  Fed.  825,  holding  grant  of  tunnel" 
rights  with  appurtenances  includes,  by  implication,  every  necessary  incident  and 
appurtenance  thereto;  Scott  v.  Michael,  129  Ind.  254,  28  N.  E.  546,  holding  right. 
to  maintain  milldam  as  when  conveyed,  part  of  thing  sold;  Latta  v.  Catawba 
Electric  &  Power  Co.  146  N.  C.  298,  59  S.  E.  1028,  on  the  sale  of  land  as  passing 
appurtenant  easements. 

Cited  in  notes  (81  Am.  St.  Rep.  767)  on  appurtenances;  (10  Eng.  Rul.  Cas.  59) 
as  to  when  grant  of  an  easement  will  be  implied. 

Defective    statement    of   grfod    cause    of    action. 

Cited  in  Miz/.ell  v.  Ruffin,  118  N.  C.  71,  23  S.  E.  927,  holding  insufficient  state- 
ment of  good  cause  of  action  cured  if  not  demurred  to. 
Demurrer. 

Cited  in  New  Bern  Bkg.  &  T.  Co.  v.  Duffy,  156  N.  C.  87,  72  S.  E.  96,  holding 
that  complaint  in  action  on  note  due  ten  days  after  demand  is  not  demurrable, 
though  it  does  not  allege  that  the  demand  was  made  on  defendant  and  that  pay- 
ment had  not  been  made  and  that  ten  days  had  elapsed;  Blackmore  v.  Winders, 
144  N.  C.  216,  56  S.  E.  874,  on  when  a  pleading  is  demurrable. 

2  L.  R.  A.  287,  HEYE  v.  NORTH  GERMAN  LLOYD,  36  Fed.  705. 
General  average. 

Cited  in  Ralli  v.  Troop,  157  U.  S.  413,  39  L.  ed.  753,  15  Sup.  Ct.  Rep.  657, 
Reversing  37  Fed.  894,  holding  claim  of  general  average  not  sustained  when  fire 
put  out  by  order  of  port  commissioners. 

2  L.  R.  A.  289,  KENTUCKY  &  I.  BRIDGE  CO.  v.  LOUISVILLE  &  N.  R.  CO. 

37  Fed.  567. 
Pleading's. 

Cited  in  Farmers'  Loan  &  T.  Co.  v.  Northern  P.  R.  Co.  83  Fed.  251,  holding 
rules  of  pleading  and  practice  apply  to  equity  proceeding  to  enforce  commission 
order. 
Power   of  United   State*  courts  under  Act  to   Regulate   Commerce. 

Cited  in  Interstate  Commerce  Commission  v.  Atchison,  T.  &  S.  F.  R.  Co.  50  Fed. 
304;  Shinkle,  W.  &  K.  Co.  v.  Louisville  &  N.  R.  Co.  62  Fed.  693;  Interstate  Com- 
merce Commission  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  56  Fed.  935;   Interstate 
Commerce   Commission   v.   Lehigh   Valley  R.   Co.   49   Fed.    180,  —  holding   Inter- 
L.R.A.  Au.  Vol.  I.— 18. 


2  L.R.A.  289]  L.  R.  A.  CASES  AS  AUTHORITIES.  274 

state  Commerce  Commission's  findings  of  fact  not  conclusive  in  Federal  court; 
Interstate  Commerce  Commission  v.  Southern  K  Co.  123  Fed.  601,  holding  court, 
in  suit  to  enforce  order  of  Interstate  Commerce  Commission,  is  not  limited  to 
issues  of  evidence  before  Commission;  United  States  v.  Missouri  P.  R.  Co.  65  Fed. 
1)07,  defining  district  attorney's  power  to  institute  proceedings,  under  amend- 
ment, to  enforce  Interstate  Commerce  Act;  Detroit  G.  H.  &  M.  R.  Co.  v.  Inter- 
state Commerce  Commission,  21  C.  C.  A.  141,  43  U.  S.  App.  308,  74  Fed.  841, 
holding  court  can  only  grant  or  refuse  compulsory  obedience  to  Commission's 
orders;  Little  Rock  &  M.  R.  Co.  v.  East  Tennessee,  V.  &  G.  R.  Co.  47  Fed.  773, 
holding  Federal  court  has  jurisdiction  of  subject-matter  arising  under  Interstate 
Commerce  Act;  Tift  v.  Southern  R.  Co.  123  Fed.  793,  sustaining  jurisdiction  of 
United  States  circuit  court,  in  cases  arising  under  Interstate  Commerce  Act, 
irrespective  of  citizenship  of  parties;  Denver  &  R.  G.  R.  Co.  v.  Baer  Bros.  Mer- 
cantile Co.  109  C.  C.  A.  337,  187  Fed.  488,  on  whether  reasonableness  of  rate  on 
.goods  transported  within  state  by  interstate  railroad  is  within  jurisdiction  of 
interstate  commerce  commission. 

Distinguished  in  Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.   112  Fed. 
827,  holding  remedies  under  §§  8,  9,  of  Interstate  Commerce  Act  exclusive. 
Effect    of   decisions   of   Interstate    Commerce    Commission. 

Cited  in  Edmunds  v.  Illinois  C.  R.  Co.  2  111.  C.  C.  462,  holding  the  finding  and 
•opinion  of  the  interstate  commerce  commission  are  not  evidence  in  the  state 
•courts;  Interstate  Commerce  Commission  v.  Southern  P.  Co.  132  Fed.  837,  holding 
in  a  suit  to  enforce  the  order  of  interstate  commerce  commission,  the  court  is  not 
confined  to  grounds  assigned  by  the  commission  or  bound  to.  reach  the  same  con- 
clusion upon;  Western  N.  Y.  &  P.  R.  Co.  v.  Penn  Ref.  Co.  70  C.  C.  A.  23,  137  Fed. 
349,  holding  the  opinions  of  the  interstate  commerce'  commission  were  not  admis- 
sible in  an  action  for  the  enforcement  of  an  order  of  pecuniary  reparation. 
Delegation  of  power  to  regulate  carriers. 

Cited  in  note  (32  L.R.A.(X.S.)  641)  on  delegation  of  power  to  regulate  carriers. 
"What  constitutes  common  carriers. 

Cited  in  State  ex  rel.  Winnett  v.  Union  Stock  Yards  Co.  81  Neb.  79.  115  N.  W. 
627,  holding  a  stock  yards  company  maintaining  tracks  connected  with  various 
railroads  and  engaged  in  transferring  cars  from  one  road  to  another  at  a  fixed 
charge  was  a  common  carrier;  United  States  ex  rel.  Atty.  Gen.  v.  Union  Stock- 
yard &  Transit  Co.  192  Fed.  337,  holding  same;  Texas  &  P.  R.  Co.  v.  Henson, 
56  Tex.  Civ.  App.  471,  121  S.  W.  1127,  holding  contrary;  Louisville  &  N.  R.  Co. 
v.  Central  Stock  Yards  Co.  212  U.  S.  147,  53  L.  ed.  447,  29  Sup.  Ct.  Rep.  246  (dis- 
senting opinion),  as  having  intimated  power  of  Congress  to  regulate  stock  yards 
as  parts  in  interstate  commerce. 

Distinguished  in  Covington  &  C.  Bridge  Co.  v.   South  Covington  &  C.  Street 
R.  Co.  93  Ky.  141,  15  L.  R.  A.  829,  19  S.  W.  403,  holding  toll  company  cannot 
exclude  from  bridge  horse  cars  offering  fair  toll. 
Requirement    as    to    reasonable    facilities. 

Cited  in  Central  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.  63  L.  R.  A.  217,  55 
C.  C.  A.  68,  118  Fed.  118,  holding  carrier  with  reasonable  facilities  for  delivery 
and  care  of  stock  may  refuse  delivery  elsewhere. 
Unlawful  regulation  of  commerce. 

Cited  in  Hopkins  v.  United  States,  171  U.  S.  592,  43  L.  ed.  296,  19  Sup.  Ct.  Rep. 
40,  Reversing  82  Fed.  539,  holding  charges  for  facilities  furnished  not  a  regula- 
tion of  commerce;  Minnesota  v.  Northern  Securities  Co.  123  Fed.  700,  holding 
corporation  organized  to  hold  stock  of  two  competing  railroads  does  not  violate 
state  law  against  combination  in  restraint  of  commerce;  De  Rochemont  v.  New 


1275  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  2S9 

York  C.  &  H.  R.  R.  Co.  75  N.  H.  162,  29  L.R.A.(N.S.)  531,  71  Atl.  868,  holding 
valid,  state  statute  permitting  attachment  of  idle  cars  of  foreign  railroad. 

Distinguished  in  Inman  v.   St.  Louis  S.  W.  R.  Co.   14  Tex    Civ.  App.  52,  37 
S.  W.  37,  holding  carrier  bound,  upon  payment  of  freight,  to  deliver  goods  to 
connecting  carrier  chosen  by  him. 
Uiiforliiddeii  discrimi nations  and  preferences. 

Cited  in  Gamble-Robinson  Commission  Co.  v.  Chicago  &  X.  W.  R.  Co.  21  L.R.A. 
<N.S.)  986,  94  C.  C.  A.  217,  168  Fed.  165,  16  A.  &  E.  Ann.  Cas.  613,  holding  an 
interstate  commerce  act  prohibited  undue  and  unreasonable  preferences  only; 
Tift  v.  Southern  R.  Co.  123  Fed.  793,  on  obligation  of  common  carrier  to  carry 
goods  for  all  without  discrimination  as  to  charges  or  facilities  for  transporta- 
tion. 

Cited  in  footnote  to  Little  Rock  &  M.  R.  Co.  v.  St.  Louis  &  S.  W.  R.  Co.  26 
Xi.  R.  A.  192,  which  holds  not  undue  disadvantage  to  require  prepayment  of 
freight  charges  by  connecting  carriers  without  requiring  from  other  shippers 
or  carriers. 

Cited  in  note   (12  L.R.A.(N.S-)    514)   on  right  of  carrier  to  discriminate  with 
respect  to  special  or  unusual  service. 
Reasonable  and  just  cliarg-es. 

Cited  in  Farmers'  Loan  &  T.  Co.  v.  Northern  P.  R.  Co.  83  Fed.  259,  holding 
reasonableness  and  justice  sole  requirements  upon  rates. 
It  IK  lit  to  track  connections. 

Cited  in  Little  Rock  &  M.  R.  Co.  v.  St.  Louis  S.  W.  R.  Co.  26  L.  R.  A.  195, 
11  C.  C.  A.  422,  27  U.  S.  App.  380,  63  Fed.  778,  Affirming  59  Fed.  402,  and 
Oregon  Short  Line  &  U.  N.  R.  Co.  v.  Northern  P.  R.  Co.  51  Fed.  473,  holding 
<!ommon  carrier  not  required  to  furnish  use  of  tracks  or  terminal  facilities  to 
another  carrier;  Com.  ex  rel.  Norton  Bd.  of  Trade  v.  Norfolk  &  W.  R.  Co.  Ill  Va. 
-68.  68  S.  E.  351,  holding  same. 

Cited  in  footnote  to  Re  Stillwater  &  M.  Street  R.  Co.  59  L.  R.  A.  489,  which 
liolds    electric    railways    entitled   to   track    connections   with    intersecting   steam 
roads. 
•Thronsli   routes  and  throngrh  rates. 

Cited  in  Little  Rock  &  M.  R.  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  2  Inters.  Com. 
Rop.  765,  41  Fed.  563,  holding  court  has  no  power  to  compel  railroad  companies  to 
inake  joint  through  rates. 

Cited  in  footnote  to  Jacobson  v.  Wisconsin,  M.  &  P.  R.  Co.  40  L.  R.  A.  389, 
•which  sustains  making  of  joint  rates  for  through  shipments  over  connecting 
railroads. 

Cited  in  notes   (12  L.  R.  A.  437)   on  carriers  as  to  through  traffic  rates;    (12 
L.  R.  A.  438)   as  to  connection  with  bridge  company. 
Discrimination  in  rates  and  charges. 

Cited  in  Post  v.  Southern  R.  Co.  103  Tenn.  207,  55  L.  R.  A.  487,  52  S.  W.  301 ; 
State  ex  rel.  Board  of  Transportation  v.  Sioux  City,  O.  &  W.  R.  Co.  46  Neb.  699, 
31  L.  R.  A.  53,  65  N.  W.  766;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Nelson,  4  Tex.  Civ.  App. 
349,  23  S.  W.  732;  Central.  Stock  Yards  Co.  v.  Louisville  &  N.  R.  Co.  192  U.  S. 
570,  48  L.  ed.  569,  24  Sup.  Ct.  Rep.  339,  Affirming  63  L.  R.  A.  217,  55  C.  C.  A. 
68,  118  Fed.  119,  —  holding  railroad  having  stock  yards  under  no  obligation  to 
accept  shipment  from  other  states  consigned  to  stock  yards  of  physically  con- 
nected railroad  in  same  city;  Paxton  &  H.  Irrig.  Canal  &  Land  Co.  v.  Farmers' 
&  M.  Irrig.  &  Land  Co.  45  Neb.  901,  29  L.  R.  A.  858,  50  Am.  St.  Rep.  585,  64 
N.  W.  343,  and  Gulf,  C.  &  S.  F.  R.  Co.  v.  Miami  S.  S.  Co.  30  C.  C.  A.  154,  52 
U.  S.  App.  132,  86  Fed.  419,  holding  carrier  not  bound  to  make  similar  through- 


2  L.R.A.  289]  L.  R.  A.  CASES  AS  AUTHORITIES.  276 

rate  contracts  with  connecting  lines;  Chicago  &  N.  W.  R.  Co.  v.  Osborne,  3 
C.  C.  A.  350,  10  U.  S.  App.  430,  52  Fed.  915,  holding  connecting  companies  not 
bound  to  abandon  full  control  of  separate  roads  or  unite  in  joint  tariff. 

Cited  in   note    (5  Eng.  Rul.  Cas.  378)    on   carrier's  duty   as  to   accepting  and 
carrying  goods. 
Contracts  with  connecting  lines  for  through  rates. 

Cited  in  Ft.  Worth  &  D.  C.  R.   Co.  v.  Whitehead,  6  Tex.   Civ.  App.   598,  26 
S.   W.    172,   holding   receipt   of   out-of-state   shipment   from    connecting   line   not 
alone  an  act  of  interstate  commerce. 
—  For  forwarding1  beyond  terminus. 

Cited  in  Louisville  &  N.  R.  Co.  v.  West  Coast  Naval  Stores  Co.  198  U.  S.  498, 
49  L.  ed.  1141,  25  Sup.  Ct.  Rep.  745,  holding  a  common  carrier  may  asrree  with 
such  other  carrier  as  it  may  choose  to  forward  beyond  its  own  line  goods  it  has 
carried  to  its  terminus. 
Who  may  complain  of  discrimination. 

Cited  in  Oregon  Short  Line  &  U.  N.  R.  Co.  v.  Northern  P.  R.  Co.  9  C.  C.  A.  412, 
15  U.  S.  App.  479.  61  Fed.  161,  holding  that  discrimination  as  to  freight  prepay- 
ment against  traffic  and  localities  by  one  railroad  company  cannot  be  invoked 
by  another  company. 
Powers  of  Congress. 

Cited  in  Bullard  v.  Northern  P.  R.  Co.  10  Mont.  179,  11  L.  R.  A.  249,  25  Pac. 
120,  holding  constitutionality  of  act  not  affected  because  incidentally  preventing 
enforcement  of  pre-existing  contracts. 

2  L.  R.  A.  328,  DRUCKER  v.  WELLHOUSE,  82  Ga.  129,  8  S.  E.  40. 
Partnership  as  legal  entity. 

Cited  in  Green  v.  WTillingham,  100  Ga.  226,  28  S.  E.  42;  holding  judgment 
against  partnership,  erroneous  where  members  are  different  from  those  alleged  in 
complaint;  Page  v.  Citizens'  Bkg.  Co.  Ill  Ga.  79,  51  L.  R.  A.  471,  78  Am.  St. 
Rep.  144,  36  S.  E.  418,  holding  partnership  may  be  liable  in  action  for  malicious 
prosecution;'  Marlow  v.  Hughes  Lumber  Co.  92  Ga,  554,  17  S.  E.  922,  holding 
petition  by  partnership  for  certiorari  properly  dismissed  where  affidavit  showing 
reason  for  dispensing  with  bond  was  made  by  partner  as  individual;  Moore  v. 
Smith  Mach.  Co.  4  Ga.  App.  152,  60  S.  E.  1035,  holding  for  the  purpose  of  filing 
affidavits  of  poverty  the  law  recogni/es  a  partnership  as  a  legal  entity. 
When  partnership  deemed  insolvent. 

Cited  in  Ransom  v.  Wardlaw,  99  Ga.  542,  27  S.  E.  158,  holding  creditor's  peti- 
tion against  partnership  as  insolvent  lies,  though  member  be  solvent. 
Partnership  assignments  not  including  individual  property. 

Cited  in  Birdsall,  W.  &  P.  Mfg.  Co.  v.  Schwarz,  3  App.  Div.  304,  38  N.  Y.  Supp. 
368,  holding  judgment  creditors,  and  not  assignee  of  partnership,  may  attack  con- 
veyance of  individual  partner's  property;  Wilson  v.  Sullivan,  17  Utah,  348,  53 
Pac.  994,  holding  partnership  assignment  need  not  include  individual  property 
of  partners. 

Distinguished   in   McCord-Brady   Co.    v.   Mills,   8   Wyo.   265,  46  L.  R.   A.   741, 
footnote,  p.  737,  56  Pac.   1003,  holding  partnership  assignment  for  creditors,  not 
including  separate  property,  void. 
Kffect  on   assignment   of  preference   to   attorney. 

Cited  in  Bank  of  Little  Rock  v.  Frank,  63  Ark.  27,  58  Am.  St.  Rep.  65,  37 
S.  W.  400,  holding  preference  in  favor  of  attorney  for  services  to  be  rendered  in 
connection  therewith  will  not  avoid  entire  assignment;  Cortland  Wagon  Co.  v. 


L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.ll.A.  336 

Gordy,  98  Ga.  530.  25  S.  E.  574,  sustaining  mortgage  given  by  insolvent  trader  to 
attorneys  for  services  to  be  rendered  in  litigation  over  winding  up  of  his  affairs; 
Zent  v.  Gilson,  52  Wash.  322,  100  Pac.  739,  holding  persons  in  the  rightful  pos- 
session of  property,  charged  with  the  larceny  thereof,  may  transfer  the  same  to 
attorneys  for  services  to  be  rendered  in  their  defense. 

Cited  in  note  (58  Am.  St.  Rep.  89)  on  effect  on  assignment  of  provision  for 
payment  of  attorney  fee. 

l-'rnud   O.H  mutter  of  proof  nllaiide. 

Cited  in  note  (58  Am.  St.  Rep.  95,  96)  on  fraud  in  assignments  for  creditors 
as  matter  of  proof  aliunde. 

2  L.  R.  A.  332,  Re  CHAPMAN,  37  Fed.  327. 
Enlistment  of  minor. 

Cited  in  Re  Falconer,  91  Fed.  650,  discharging  enlisted  minor  on  his  father's 
application. 

Cited  in  notes  (18  L.R.A.  (N.S.)  958,  959)  on  right  of  minor  unlawfully  enlisted 
to  discharge  upon  habeas  corpus  from  custody  of  court-martial  under  charge  of 
desertion  or  fraudulent  enlistment;  (39  L.R.A. (N.S. )  456,  458)  on  enlistment  of 
minor  without  parent's  consent. 

Cited  as  overruled  in  United  States  v.  Reaves,  60  C.  C.  A.  680,  126  Fed.  132, 
Reversing  121  Fed.  850,  holding  minor's  enlistment  in  Navy  without  father's  con- 
sent voidable  only,  and  at  father's  instance. 

2  L.  R.  A.  334,  BARRY  v.  GUILD,  126  111.  439,  18  N.  E.  759. 
Covenants   in   deeds. 

Cited  in  Cream  City  Mirror  Plate  Co.  v.  Swedish  Bldg.  &  L.  Asso.  74  111.  App. 
366,  holding  no  eviction  where  vendee's  possession  of  fixture  and  title  were  un- 
disturbed. 

Cited  in  footnotes  to  Mygatt  v.  Coe,  11  L.  R.  A.  646,  which  holds  covenants  of 
warranty  and  quiet  enjoyment  by  owner  and  husband  do  not  run  with  land  as 
against  husband;  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes  as  run- 
ning with  the  land  agreement  for  party  wall  expressly  declared  to  run  with 
land;  Wiggins  v.  Pender,  61  L.  R.  A.  772,  which  holds  assignee  entitled  to 
benefit  of  covenant  of  warranty  not  naming  him,  if  assigns  named  in  habendum 
clause  of  deed. 

Cited  in  notes  (6  L.R.A.  107)  on  covenants  defined  and  construed;  (21  L.R.A. 
(N.S.)  385)  on  right  of  grantee  in  possession  to  question  right  of  grantor  to 
collect  purchase  money;  (53  Am.  St.  Rep.  115)  on  covenant  for  quiet  enjoyment; 
(82  Am.  St.  Rep.  668)  on  what  covenants  run  with  the  land;  (122  Am.  St.  Rep. 
854)  on  breach  of  covenant  of  warranty  by  eviction;  (15  Eng.  Rul.  Cas.  251,  252) 
on  right  of  assignee  to  sue  covenantor. 
Right  of  attorney  to  fees  in  his  oven  case. 

Cited  in  Reynolds  v.  Price,  88  S.  C.  533,  71  S.  E.  51,  holding  that  mortgagee's 
charge  of  small  fee  for  his  services  as  attorney  in  preparing  summons  and  com- 
plaint in  foreclosure  is  not  so  unreasonable  as  necessarily  to  induce  belief  that 
claim  was  not  made  in  good  faith. 

2   L.   R.   A.    336,   PERTN   v.   PARKER,    126    111.   201,   9   Am.   St.   Rep.   571,    18 

N.  E.  747. 
Duty  of  lirolier  on  failnre  of  niarK'iii. 

Cited  in  note  (74  Am.  St.  Hep.  479)  on  duty  of  broker  on  failure  of  margin. 


2  L.R.A.  336]  L.  R.  A.  CASES  AS  AUTHORITIES.  278 

Implied    knowledge   of    usages    and    customs    of    the    business. 

Cited  in  Pardridge   v.   Cutler,  68   111.  App.   573,  holding  person  dealing  with, 
board   of   trade   intends   business   to   be   conducted   according   to   its   usage   and. 
custom. 
Implied    undertaking;    to    indemnify,    and    promise    to    pay. 

Cited  in  Bibb  v.  Allen,  149  U.  S.  501,  37  L.  ed.  827,  13  Sup.  Ct.  Rep.  950,  hold- 
ing employing  broker  to  sell  for  future  delivery  implies  undertaking  to  in- 
demnify, and  promise  to  reimburse;  Re  Filer,  125  Fed.  263,  holding  claim  against 
employee  inducing  employers,  by  pretended  orders  from  customers,  to  purchase 
stocks  for  his  benefit,  provable  in  bankruptcy. 
Waiver. 

Cited  in  Keller  v.  Robinson.  153  111.  468,  38  N.  E.  1072,  holding  stipulation  as 
to  nature  of  defense  in  replevin  no  waiver  of  demand;  Star  Brewery  Co.  v. 
Primas,  163  111.  662,  45  N.  E.  145,  holding  proof  must  be  clear  to  show  waiver  of 
covenant,  verbally  or  by  acquiescence;  Monahan  v.  Fidelity  Mut.  L.  Ins.  Co.. 
148  111.  App.  176,  on  a  waiver  as  being  the  relinquishment  of  a  known  right. 

Cited  in  note  (137  Am.  St.  Rep.  190)  on  waiver  of  vendor's  lien. 
Harmless  error  in  instructions. 

Cited  in  Hayes  v.  Todd,  34  Fla.  243,   15  So.  752,  holding  charge  unobjected; 
to  as  error  of  law  harmless,  judgment  being  only  proper  one. 
Right  of  factor  or  broker  to  recover  advances. 

Cited  in  Ware  v.  Heiss,  133  Iowa,  287,  110  N.  W.  594,  holding  a  commissiorr 
merchant  cannot  recover  of  his  principal  for  advances  made  on  the  purchase  of 
grain  to  close  his  deals,  unless  he  has  made  actual  payments. 

2   L.   R.   A.   340,   PEOPLE   v.   PEOPLE'S   INS.    EXCHANGE,    126   111.   466,    18- 

N.  E.  774. 
\Vlio  are  agents  of  insured. 

Cited  in  United  Firemen's  Ins.  Co.  v.  Thomas,  47  L.  R.  A.  456,  34  C.  C.  A.  244, 
92  Fed.  131,  holding  agent  in  fact  of  insured  was  not  agent  of  insurer  under 
statute;  Continental  Ins.  Co.  v.  Ruckman,  127  111.  377,  11  Am.  St.  Rep.  121,  20~ 
N.  E.  77,  holding  clerk  of  general  agent  might  insert,  in  policy,  clause  relating 
to  nonoccupancy. 

Cited  in  note   (8  L.  R.  A.  129)   on  foreign  insurance  companies;  conditions  im- 
posed by  statute. 
Licensing:  insurance  companies. 

Cited  in  Indiana  Millers'  Mut.  F.  Ins.  Co.  v.  People,  65  111.  App.  358,  holding 
foreign  insurance  company  can  be  prohibited  from  doing  business  without  license. 
What  questions  are  for  jury. 

Cited  in  Roberts  v.  Chicago  &  G.  T.  R.  Co.  78  111.  App.  529.  and  Groszewski  v. 
Chicago  Sugar  Ref.  Co.  84  111.  App.  587,  holding  instruction  to  find,  error;  Mc- 
Clary  v.  Warner,  69  111.  App.  225.  holding  instruction  to  jury  to  find  is  error 
if  evidence  sufficient;  Finley  v.  West  Chicago  Street  R.  Co.  90  111.  App.  370, 
holding  court  may  direct  verdict  if  evidence  insufficient;  Illinois  C.  R.  Co.  v. 
Meyer,  65  111.  App.  535,  holding  insufficiency  of  unsupported  verdict  question 
of  law;  National  Syrup  Co.  v.  Carlson,  155  111.  216,  40  N.  E.  492,  holding  in- 
struction to  find  for  defendant  should  be  refused  if  facts  sustain  verdict;  Goldie- 
v.  Werner,  151  111.  555,  38  N.  E.  95,  holding  case  should  have  been  submitted  to 
jury;  Cohen  v.  Chicago  &  N.  W.  R.  Co.  104  111.  App.  322.  holding  evidence  for 
jury  which  tends  to  prove  locomotive  bell  was  not  rung  nor  whistle  sounded : 
Cohen-Schwartz  Rail  &  Steel  Co.  v.  East  St.  Louis  Locomotive  &  Mach.  Shop 


279  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  343 

Co.  158  111.  App.  647,  holding  it  for  jury  to  determine  weight  and  sufficiency  of 
evidence,  when  evidence  fairly  tends  to  establish  plaintiff's  case. 

Cited  in  note   (15  Eng.  Rul.  Cas.  72)   on  right  to  withdraw  civil  action  from 
jury  for  insufficiency  of  proof. 
Practice. 

Cited  in  Hopkins  v.  Nashville,  C.  &  St.  L.  R.  Co.  96  Tenn.  432,  32  L.  R.  A.  361, 
34  S.  W.  1029,  holding  demurrer  to  evidence  proper  practice  when  facts  undis- 
puted. 

Cited  in  notes  (20  L.  R.  A.  409)  as  to  criminal  prosecutions  when  the  statutes 
regulating  the  business  of  foreign  insurance  companies  have  not  been  complied 
with;  (10  L.  R.  A.  237)  on  directing  verdict  under  scintilla  doctrine;  (4  L.  R. 
A.  770,  778)  on  practice  in  trial  directing  verdict  where  municipal  regulations 
of  rate  of  speed  of  railroads  is  in  question. 

2  L.  R.  A.  343,  ARTMAN  v.  FERGUSON,  73  Mich.  146,  16  Am.  St.  Rep.  572, 

40  N.  W.  907. 
Partnership  between  husband  and  wife. 

Cited  in  Haggett  v.  Hurley,  91  Me.  557,  41  L.  R.  A.  367,  40  Atl.  561;  Chamber- 
lain v.  Murrin,  92  Mich.  365,  52  N.  W.  640;  Vail  v.  Winterstein,  94  Mich.  233, 
18  L.  R.  A.  517,  34  Am.  St.  Rep.  334,  53  N.  W.  932;  Board  of  Trade  v.  Hayden, 
4  Wash.  269,  16  L.  R.  A.  533,  31  Am.  St.  Rep.  924,  30  Pac.  87;  Fuller  &  F.  Co.  v. 
McHenry,  83  Wis.  581,  18  L.  R.  A.  515,  53  X.  W.  896;  Doolittle  v.  Gavagan,  74 
AIuli.  14,  41  X.  W.  846,  —  holding  husband  and  wife  cannot  become  copartners; 
HolFman  v.  Goldsmith,  131  Mich.  295,  91  X.  W.  158,  denying  liability  of  wife- 
holding  bill  of  sale  as  security  for  saloon  fixtures  furnished  on  husband's  credit; 
Suau  v.  Caffe,  122  X.  Y.  319,  9  L.  R.  A.  596,  25  X.  E.  488  (dissenting  opinion), 
majority  holding  wife  liable  upon  debt  contracted  with  husband  in  business  car- 
ried on  by  them  as  partners;  Xorwood  v.  Francis,  25  App.  D.  C.  475,  4  A.  &  E» 
Ann.  Cas.  865,  holding  a  married  woman  may  not  enter  a  valid  copartnership 
with  her  husband;  Root  v.  Root,  164  Mich.  645,  32  L.R.A.(N.S.)  841,  130  N.  W. 
194,  Ann.  Cas.  1912  B,  740,  holding  that  wife  cannot  conduct  business  in  compe- 
tition with  husband. 

Cited  in  notes  (9  L.  R.  A.  593;  16  L.  R.  A.  527)  on  partnership  between  hus- 
band and  wife;  (115  Am.  St.  Rep.  412)  on  same  point;  (31  Am.  St.  Rep.  935) 
on  married  woman  as  partner;  (34  Am.  St.  Rep.  339,  340)  on  power  of  married 
women  to  be  partners. 

Distinguished  in  Hoaglin  v.  Henderson,  119  Iowa,  725,  61  L.  R.  A.  756,  97 
Am.  St.  Rep.  335,  94  N.  W.  247,  holding  wife  may  become  husband's  business 
partner,  under  married  woman's  enabling  acts;  Hackley  Xat.  Bank  v.  Jeannot, 
143  Mich.  455,  106  N.  W.  1121,  holding  a  married  woman  who  has  engaged  in 
trade  as  husband's  partner- may  bind  her  interest  in  the  property  of  the  two  by 
joining  in  a  chattel  mortgage  of  firm  property  to  secure  a  firm  debt 
Joint  contract)*  of  hnaband  and  wife. 

Cited  in  Caldwell  v.  Jones,  115  Mich.  130,  73  N.  W.  129,  holding  wife  not 
liable  on  note  given  for  property  purchased  jointly. 

Cited  in  footnote  to  Yerkes  v.  Hadley,  2  L.  R.  A.  363,  which  holds  married 
woman,  executing  mortgage  with  husband,  estopped  from  setting  up  subsequently 
acquired  title. 
Contracts  of  married  women  in  relation  to  joint  property. 

Cited  in  Speier  v.  Opfer,  73  Mich.  39,  2  L.  R.  A.  348,  16  Am.  St.  Rep.  556,  40 
X.  W.  909,  holding  wife  not  liable  upon  contract  for  improvement  of  property 
held  jointly  with  husband. 


•2  L.R.A.  343]  L.  R.  A.  CASES  AS  AUTHORITIES.  280 

•Contracts  of  married   women  at*   to  separate   property. 

Cited  in  Chamberlain  v.  Murrin,  92  Mich.  3G5,  52  X.  W.  640,  holding  married 
woman  may  contract  for  purchase  or  sale  of  property. 

Cited  in  footnote  to  Vail  v.  Winterstein,  18  L.  R.  A.  515,  which  holds  married 
-woman  may  enter  firm  in  which  husband  not  a  partner. 

Cited  in   note    (2   L.   R.   A.   347)    on   statutes   removing  disability  of  married 
women  to  contract. 
Contracts  between  liasband  and  wife. 

Cited  in  Corcoran  v.  Corcoran,  119  Ind.  140,  4  L.  R.  A.  783,  12  Am.  St.  Rep. 
391,  21  N.  E.  468,  holding  contract  of  wife  to  support  husband  in  consideration 
of  conveyance  invalid. 
Action  by  married  women   for  tort. 

Cited  in  Bandfield  v.  Bandfield,  117  Mich.  83,  40  L.  R.  A.  759,  72  Am.  St.  Rep. 
550,  75  N.  W.  287,  holding  action  cannot  be  maintained  against  husband,  after 
divorce,  for  tort  committed  during  coverture. 

•2   L.   R.   A.   345,   SPEIER   v.   OFFER,   73   Mich.   35,    16   Am.   St.   Rep.   556,   40 

N.  VV.  909. 
Contracts  of  married  "women  in  general. 

Cited  in  Green  v.  Tuttle,  5  Ariz.  183,  48  Pac.  1009,  holding  a  deed  joined  in 
fay  wife,  under  belief  that  husband  was  alive  with  husband's  attorney  in  fact  who 
Icnows  husband  is  dead  and  represents  it  was  husband's  wish  is  void. 

Cited  in  footnotes  to  Roop  v.  Real  Estate  Investment  Co.  7  L.  R.  A.  211,  which 
holds  married  woman  not  empowered  to  bind  herself  by  judgment  note :  Wilder  v. 
Wilder,  9  L.  R.  A.  97,  which  holds  married  woman  estopped  to  claim  vendor's 
lien  by  representing  that  one  loaning  to  vendee  should  have  first  mortgage :  Hunt 
v.  Reilly,  59  L.  R.  A.  206,  which  holds  wife's  failure  to  notify  purchaser  of  rights 
after  learning  of  forgery  of  her  name  to  husband's  deed  does  not  estop  her  to 
•claim  dower. 

Cited  in  notes    (7  L.  R.  A.  640)    on  wife's  capacity  to  contract;    (2  L.  TJ.  A. 
343)    on  power  of  married  woman  to  enter  into  partnership;    (4  L.  R.  A.  334; 
8  L.  R.  A.  407)   on  estoppel  of  married  woman. 
Conveyance  to  husband  and  wife  jointly,  iiatnre  of  estate. 

Cited  in  Re  Lewis,  85  Mich.  345,  24  Am.  St.  Rep.  94,  48  X.  W.  580.  holding  that 
'husband  and  wife  take  as  tenants  by  entireties;  Dickey  v.  Converse.  117  Mich. 
455,  72  Am.  St.  Rep.  568,  76  N.  W.  80,  holding  crops  grown  on  lands  subject  to 
same  law  as  land,  and  exempt  from  execution  against  either  tenant;  Michigan 
Beef  &  Provision  Co.  v.  Coll,  116  Mich.  262,  74  N.  W.  475,  holding  that  husband 
has  no  separable  portion  in  estate  so  as  to  make  his  testimony  competent  against 
Tiis  half  of  land;  Fowles  v.  Hayden,  130  Mich.  50,  89  N.  W.  571,  holding  that  wife 
•cannot  recover  for  trespass  to  land  owned  by  entireties;  Lang  v.  Prindle,  163 
Mich.  263,  128  N.  W.  220,  holding  that  estate  by  entirety  is  not  affected  by  act 
•or  conveyance  of  either  husband  or  wife. 

Cited  in  footnote  to  Re  Albrecht,  18  L.  R.  A.  329,  which  denies  tenancy  by  en- 
tirety in  bond  and  mortgage  to  husband  and  wife. 
Contracts  of  married  women  in  relation   to  joint  property. 

Cited  in  Doane  v.  Feather,  119  Mich.  693,  78  N.  W.  885,  and  Curtis  v.  Crowe, 
74  Mich.  100,  41  X.  W.  876,  holding  contract  for  erection  of  building  on  prop- 
erty owned  jointly  with  husband  invalid. 

Cited  in  note  (30  L.  R.  A.  329)  on  disposition  or  encumbrance  of  entirety 
property. 


281  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  349 

Joint    contracts   of    liuOmiu!    and    wife. 

Cited  in  Doane  v.  Feather,  119  Mich.  692,  78  N.  W.  884,  and  Caldwell  v. 
Jones,  115  Mich.  130,  73  N.  W.  129,  holding  wife  not  liable  on  note  given  with 
husband  for  property  purchased  jointly;  Kohn  v.  Collison,  1  Marv.  (Del.)  113, 
27  Atl.  834,  holding  married  woman  not  liable  upon  indorsement  of  husband's 
note,  given  for  his  debts. 

Cited  in  footnotes  to  Yerkes  v.  Hadley,  2  L.  R.  A.  363,  which  holds  married 
woman,  executing  mortgage  with  husband,  estopped  from  setting  up  subsequently" 
acquired  title. 

Distinguished  in  Hackley  Nat.  Bank  v.  Jeannot,  143  Mich.  455,  306  N.  W.  1121, 
holding  a  married  woman  who  has  engaged  in  trade  as  husband's  partner  may 
hind  lier  interest  in  property  of  the  two  by  joining  in  a  chattel  mortgage  on  firm 
property  to  secure  a  firm  debt. 

Disapproved,  in  effect,  in  Schofield  v.  Jones,  85  Ga.  823,  11  S.  E.  1032,  holding 
pledge  of  wife's  separate  property  as  security  for  joint  lease,  valid. 
Contract**   between   busband  and  wife. 

Cited  in  Gilkerson-Sloss  Commission  Co.  v.  Salinger,  56  Ark.  297,  16  L.  R. 
A.  529.  35  Am.  St.  Rep.  105,  19  S.  W.  747,  holding  married  woman  cannot  form 
partnership  with  husband;  Morrill  v.  Morrill,  138  Mich.  113,  110  Am.  St.  Rep. 
306,  101  X.  W.  209,  4  A.  &  E.  Ann.  Gas.  1100,  holding  a  verbal  agreement  between 
husband  and  wife  that  she  shall  have  an  equal  share  in  profits  of  land  owned  by 
them  in  entirety  is  void. 

Cited  in  footnote  to  National  Granite  Bank  v.  Tyndale,  51  L.  R.  A.  447,  which 
holds  relief  by  way  of  estoppel  not  available  to  holders  of  notes  of  married  woman 
who  had  received  proceeds,  against  defense  that  they  were  void  because  payable 
to  husband,  who  indorsed  them. 

Cited  in  note  (16  L.  R.  A.  527)   on  partnership  between  husband  and  wife. 

2  L.  R.  A.  349,  HARRIS  v.  CORLTES,  CHAPMAN  &  DRAKE,  40  Minn.   106, 

41  N.  W.  940. 
Effect  on  tenant's  liability  of  untenantable  condition. 

Cited  in  Railton  v.  Taylor,  20  R.  I.  283.  39  L.  R.  A.  248,  38  Atl.  980,  holding 
lessor  not  exempted  by  term  of  lease  from  liability  for  his  own  negligence;  Ro=cn- 
stein  v.  Cohen,  96  Minn.  339,  104  N.  W.  965,  holding  statutory  provision  adopted 
in  lease  as  to  untenantableness  of  premises  applies  simply  to  those  agents 
such  as  fire  and  water,  when  of  a  sudden  and  unexpected  nature;  Kirby  v.  Wylie, 
108  Md.  514.  21  L.R.A.(N.S.)  133,  129  Am.  St.  Rep.  451,  70  Atl.  213.  holding  it 
has  no  reference  to  a  destruction  of  the  building  by  order  of  city  building  in- 
spector by  reason  of  its  unsafe  condition  due  to  alterations  and  failure  to  repair. 

Cited  in  notes  (53  L.  R.  A.  673)  on  what  constitutes  damage  "by  the  elements" 
within  the  meaning  of  contracts  with  stipulations  referring  thereto;    (9  L.  R.  A. 
799)   on  agreement  by  landlord  to  keep  premises  in  repair. 
Duty  of  landlord  to  make  repairs. 

Cited  in  Eggensperger  v.  Lanpher,  92  Minn.  505,  100  N.  W.  372,  holding  in 
absence  of  agreement,  the  landlord  is  not  bound  to  make  repairs,  improvements 
or  betterments. 
Construction  of  contracts  containing;  general  and  particular  recitals. 

Cited  in  Railton  v.  Taylor,  20  R.  I.  283,  39  L.R.A.  248,  38  Atl.  980,  holding 
general  terms  in  contracts  are  restricted  and  limited  by  particular  recitals  when 
used  in  connection  with  them. 

Cited  in  note  (21  L.R.A.(N.S-)  131)  as  to  whether  destruction  by  decay  render- 


2  L.ll.A.  349]  L.  R.  A.  CASES  AS  AUTHORITIES.  282 

ing  premises  untenantable,   is   within   landlord's   covenant   to   repair,   or  statiite 
relieving  tenant  in  case  of  destruction  by  act  of  God  or  elements. 

2  L.  R.  A.  350,  STATE,  DARCY,  PROSECUTRIX,  v.  DARCY,  51  N.  J.  L.  140, 

16  Atl.  160. 

Affirmed,  without  opinion,  in  52  N.  J.  L.  222,  20  Atl.  319. 
Taxability   of   foreign   mortgages   OP   securities. 

Cited  in  Holland  v.  Silver  Bow  County,  15  Mont.  462,  27  L.  R.  A.  798,  39  Pac. 
575,  holding  mortgages  on  land  within,  but  owned  without,  state  not  taxable; 
State  ex  rel.  Dwinnell  v.  Gaylord,  73  Wis.  325,  41  N.  W.  521,  holding  mortgages 
owned  by  resident,  on  nonresident  lands  and  in  hands  of  nonresident  agent,  not 
taxable;  Savings  &  Loan  Soc.  v.  Multnomah  County,  169  U.  S.  428,  42  L.  ed.  805, 
18  Sup.  Ct.  Rep.  392,  holding  act  taxing  nonresident  mortgagee's  interest  in 
land  as  real  estate  valid;  State,  Smith,  Prosecutor,  v.  Ramsey,  54  X.  J.  L.  548, 
24  Atl.  445,  holding  assessment  for  taxes  upon  stock  of  foreign  corporation  held 
by  resident  void;  Trenton  v.  Standard  F.  Ins.  Co.  76  N.  J.  L.  81,  68  Atl.  1111, 
holding  stocks  of  foreign  corporations  are  not  taxable  in  this  state,  where  the 
corporation  has  within  twelve  months  paid  taxes  on  its  property  in  its  ow-n 
state;  Chicago  &  X.  W.  R.  Co.  v.  State,  128  Wis.  647,  108  X.  W.  557,  on  the 
taxability  of  mortgages  of  land. 
Situs  of  personalty  for  taxation. 

Cited  in  note  ("62  Am.  St.  Rep.  458)  on  situs  of  personal  property  for  purposes 
of  taxation. 

2  L.  R.  A.  353,  GRIFFIN  v.  MACON  COUNTY,  36  Fed.  885. 
•Coupons   as   instruments   distinct   from   bond. 

Cited  in  footnotes  to  Internal  Improvement  Fund  v.  Lewis,  26  L.  R.  A.  743, 
which  holds  interest  coupons  on  negotiable  bonds  transferable  separately  by 
delivery;  Internal  Improvement  Fund  v.  Lewis,  26  L.  R.  A.  743.  which  holds 
•cancelation  or  payment  of  bond  before  maturity  does  not  affect  rights  of  bona 
fide  holder  of  coupon. 

Cited  in  note    (6  L.  R.  A.  562,  563)    on  coupons  as  distinct  and  separate  in- 
struments. 
Limitation   of  action   on  bond. 

Cited  in  notes  (16  L.R.A.(X.S.)  805)  as  to  when  limitation  begins  to  run  against 
action  upon  general  municipal  bonds;  (16  Eng.  Rul.  Cas.  297)  on  running  of  limi- 
tations as  to  arrears  of  interest  on  bonds. 

2  L.  R.  A.  355,  BACON  v.  HORNE,  123  Pa.  452,  16  Atl.  794. 
Transfer  of  title  to  personal  property. 

Cited  in  Loftus  v.  Farmers'  &  M.  Nat.  Bank,  133  Pa.  112,  7  L.  R.  A.  315,  19 
Atl.  347,  holding  state  may  regulate  transfer  of  personal  property  within  its 
borders;  Van  Wyck  v.  Read,  43  Fed.  718,  and  De  Turck  v.  Woefel,  19  Pa.  Super. 
Ct.  270,  holding  Maryland  debt  of  Pennsylvania  corporation  passes  to  assignee 
of  creditor,  and  not  subsequently  attachable  in  Pennsylvania;  Hilliard  v.  Enders 
&.  Co.  196  Pa.  593,  46  Atl.  839,  holding  foreign  general  assignment  passes  title 
to  assignor's  personalty  in  sister  state;  Swedish- American  Nat.  Bank  v.  First 
Nat.  Bank,  89  Minn.  115,  99  Am.  St.  Rep.  549,  94  N.  W.  218,  holding  obiter, 
creditors  residing  in  debtor's  state  cannot  acquire  lien  by  attaching  grain  in 
another  state,  as  against  assignee  for  creditors. 
Comity  of  states. 

Cited  in  Wing  v.  Bradner,  162  Pa.  77,  29  Atl.  291,  and  Long  v.  Girdwood,  150 


^83  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  359 

Pa.  419,  23  L.  R.  A.  47,  24  Atl.  711,  holding  foreign  creditor  cannot  obtain  pref- 
erence in  Pennsylvania  over  foreign  assignment  for  creditors;  Deni  v.  Penn- 
sylvania R.  Co.  181  Pa.  529,  59  Am.  St.  Rep.  676,  37  Atl.  558,  holding  statutory 
cause  of  action  not  available  to  resident  of  foreign  state;  E.  F.  Kirwan  Mfg.  Co. 
v.  Truxton,  2  Penn.  (Del.)  60,  44  Atl.  427,  holding  foreign  corporation  in  handa 
of  foreign  receiver  cannot  sue  in  its  own  name  in  Pennsylvania;  Oilman  v. 
Ketchara,  84  Wis.  68,  23  L.  R.  A.  57,  36  Am.  St.  Rep.  899,  54  X.  W.  395,  holding 
Ionian  creditor  enjoined  from  suit  in  his  own  state  cannot  sue  in  Pennsylvania; 
Lett  v.  Thurber  Whyland  Co.  15  Pa.  Co.  Ct.  669,  4  Pa.  Dist.  R.  241,  upholding 
claim  of  resident  debtor  as  against  foreign  receiver;  Zeiger  v.  Pennsylvania  R.  Co. 
151  Fed.  349,  37  Pittsb.  L.  J.  N.  S.  356,  on  statutory  causes  of  action  as  not  being 
available  to  residents  of  foreign  states. 

Cited  in  notes  (2  L.  R.  A.  328)  on  contract  as  to  conflict  of  laws;  (6  L.  R, 
A.  108;  8  L.  R.  A.  170)  on  law  of  place  as  governing  validity  of  contract; 
(17  L.  R.  A.  85)  on  supremacy  of  state  or  nation  over  devolution  of  property, 
as  to  law  of  domicil  governing  validity  of  assignment;  (23  L.  R.  A.  38)  on 
transfer  of  property  out  of  the  state  by  bankruptcy  or  insolvency  proceedings 
or  assignment  for  creditors;  (59  Am.  St.  Rep.  881,  882)  on  right  to  prosecute 
transitory  causes  of  action  in  other  jurisdiction. 

2  L.  R.  A.  357,  UNDERWOOD  v.  GERBER,  37  Fed.  682. 

Motion  to  amend  and  leave  to  take  proofs  in  37  Fed.  796. 
Prior  patent  covering-  process  alleged  to  be  infringed. 

Cited  in  Universal  Winding  Co.  v.  Willimantic  Linen  Co.  82  Fed.  239,  holding 
no  infringement  where  there  is  a  prior  process  patent  of  device  alleged  to  be 
infringed. 
Right  to  use  of  universal  knowledge. 

Affirmed  in  149  U.  S.  224,  37  L.  ed.  710,  13  Sup.  Ct.  Rep.  854,  holding  plain- 
tiff's patent  devoid  of  patentable  novelty  or  invention. 

Cited  in  Bowman  v.  De  Grauw,  60  Fed.  910,  holding  application  for  patent 
must  be  read  in  light  of  all  knowledge  of  the  world. 

2  L.  R.  A.  359,  Re  UXIOX  ELEV.  R.  CO.  112  N.  Y.  61,  19  N.  E.  664. 
Condemnation   proceedings. 

Cited  in  Rochester  &  H.  Valley  R.  Co.  v.  Rochester,  17  App.  Div.  260,  45  N.  Y. 
Supp.  687,  holding  railroad  lands  cannot  be  taken  for  public  street  by  general 
condemnation  law;  Re  Mt.  Vernon,  34  Misc.  231,  68  X.  Y.  Supp.  823,  holding 
appointment  of  commissioners  to  condemn  necessarily  includes  fact  that  im- 
provement was  allowed;  Re  Buffalo,  46  X.  Y.  S.  R.  83,  18  X.  Y.  Supp.  771,  Re- 
versing 39  X.  Y.  S.  R.  284,  15  X.  Y.  Supp.  858,  holding  city  court  had  no  juris- 
diction of  proceedings  to  take  land  outside  of  city  for  park  purposes. 

Cited  in  note  (22  Am.  St.  Rep.  49)  on  eminent  domain. 
NI.I  i<-.-  of  public  proceedings. 

Cited  in  Re  Mt.  Vernon,  34  Misc.  230,  231,  OS  X.  Y.  Supp.  823,  holding  notice 
by  publication  effectual  to  confer  jurisdiction  in  street  opening;  Appleton  v. 
Xi'wton,  178  Mass.  282.  59  X.  E.  048,  holding  constructive  notice  by  filing  in- 
strument taking  land  for  public  use,  coupled  with  time  to  protect  rights  there- 
after, sufficient;  Re  Oneida  Street  Opening.  22  Misc.  237,  4!)  X.  Y.  Supp.  828, 
holding  mortgagee  of  land  to  be  taken  for  street  entitled  to  notice;  Hornells- 
ville  Electric  R.  Co.  v.  Xew  York,  L.  E.  &  W.  R.  Co.  83  Hun,  411,  31  X".  Y.  Supp. 
74.">.  holding  jurisdiction  acquired  by  service  of  petition  with  notice  to  ext.-nd 
.surface  railroad  tracks:  Hennessey  v.  Volkening,  30  Abb.  N.  C.  110,  22  X.  V. 


2  L.R.A.  359]  L.  R.  A.  CASES  AS  AUTHORITIES.  284 

Supp.  533,  holding  notice  essential  in  tax  proceedings;  Robert  v.  Kings  County, 

3  App.  Div.  369,  38  N.  Y.  Supp.  521,  holding  statutory  notice  was  complied  with 
in  assessment  proceedings;  Re  Hirsh,   14  Misc.  380,  36  X.  Y.  Supp.   19,  holding 
legality   of   ballot   established   by   requirement   to   have    sample   ballots   open   to- 
public  inspection,  and  giving  due  notice;    Colon  v.   Lisk,   13   App.  Div.  200.  43 
N.   Y.   Supp.   364,   holding  act  providing  for  forfeiture  of  oyster  boat  for   tres- 
passing provided  sufficient  notice;  Re  Rochester,  102  App.  Div.  187,  92  N.  Y.  Supp. 
405,   holding   notice   to   property   owners   affected   by   condemnation    proceedings 
by  publication  in  the  official  newspaper  of  the  city  was  sufficient;  Hennessey  v. 

'Volkening,  30  Abb.  N.  C.  110,  22  N.  Y.  Supp.  528,  holding  notice  of  sale  of  lands 
for  nonpayment  sufficiently  complied  with  requirement  of  statute  that  notice 
state  a  day  certain,  where  such  date  specifically  stated;  Clement  v.  May,  136 
App.  Div.  203,  120  N.  Y.  Supp.  588,  on  sufficiency  of  notice  of  proceedings  to 
seize  liquors  kept  in  violation  of  statute. 
Elevated  railways. 

Cited  in  Nutting  v.  Kings  County  County  Elev.  R.   Co.  21   App.  Div.   75,  47 
N.   Y.   Supp.   327,   holding  elevated  railroad  bound  by  act  of  agent  in  settling 
claims;  Brooklyn  Elev.  R.  Co.  v.  Nagel,  75  Hun,  591,  27  N.  Y.  Supp.  669,  hold- 
ing valid  the  franchise  to  build  and  maintain  elevated  railroad. 
Kiiilus   IK-II  ii  i  !•<•<!    under   municipal   permission. 

Cited  in  Buffalo  v.  Chadeayne,  134  N.  Y.  165,  31  X.  E.  443,  Affirming  27  X.  Y. 
S.  R.  63,  7  X1.  Y.  Supp.  501,  holding  common  council  cannot  rescind  permit  to 
construct  wooden  building  after  construction  begun. 
Rigrht  of  eminent   domain. 

Cited  in  People  ex  rel.  Lasher  v.  Xew  York.  134  App.  Div.  78,  118  X.  Y.  Supp. 
742,  on  municipal  or  other  corporations  as  having  no  inherent  right  to  take  land 
by  eminent  domain;  Re  East  Canada  Creek  Electric  Light  &  P.  Co.  49  Misc.  567, 
99  X.  Y.  Supp.  109,  holding  an  electric  light  company  contracting  with  towns 
and  villages  for  the  lighting  of  streets  may  acquire  by  condemnation  lands  to 
enable  it  to  increase  its  power. 

Cited  in  note  (2  L.R.A. (X.S.)  146)  on  right  of  de  facto  corporation  to  exercise 
eminent  domain. 

2  L.  R.  A.  363,  YERKES  v.  HADLEY,  5  Dak.  324,  40  X.  W.  340. 
Estoppel  of  married  women  by  deed. 

Cited  in  Cooper  v.  Burns,  133  Fed.  404,  holding  a  married  woman  joining  with 
husband  in  a  mortgage  of  land  in  which  she  had  a  vested  life  interest,  is  estopped 
by  general  covenants  of  warranty  therein  from  asserting  that  the  after-acquired 
title  to  the  fee  did  not  inure  to  mortgagee's  benefit ;  Burns  v.  Cooper,  72  C.  ( '.  A. 
25,  140  Fed.  282.  holding  married  woman  not  estopped  from  asserting  an  after- 
acquired  interest  in  property  by  joining  in  mortgage  with  husband  where  her 
common-law  disability  not  abrogated  by  statute. 

Cited  in  notes  (8  L.  R.  A.  407)  on  estoppel  of  married  women;  (22  L.  R. 
A.  781)  on  estoppel  of  married  women,  by  covenant,  from  acquiring  superior  title; 
(57  Am.  St.  Rep.  173)  on  estoppel  of  married  women. 

2   L.   R.   A.   366,   ROBIXSOX   v.   RUHR,   73   Wis.   430,   9   Am.   St.  Rep.   810.   40 

X.  W.  668. 

Liability  of  municipalities,  public  officers,  and  contractor**  for  mistake  or 
tort. 

Cited  in  Gates  v.  Young,  82  Wis.  276,  52  N.  W.  178,  holding  lumber  inspector 
not  liable  on  bond  for  mistakes  of  judgment  of  himself  or  deputies;  Kempster  v. 
Milwaukee,  103  Wis.  423,  79  N.  W.  411,  holding  if  city  common  council  is  guilty 


285  L.  R.  A.  CASKS  AS  AUTHORITIES.  [2  L.R.A.  368 

of  tort,  its  members  individually  are  alone  liable;  Bates  v.  Horner,  Co  Vt.  474, 
22  L.  R.  A.  829,  27  Atl.  134,  holding  municipal  officer  not  liable  to  individual 
for  result  of  official  acts;  Sells  v.  Dermody,  114  Iowa.  348,  8G  X.  YV.  325,  holding 
road  supervisor  liable  for  negligence  in  keeping  roads  in  repair;  Batdorff  v.  Ore- 
gon City,  53  Or.  406,  100  Pac.  937,  on  officer  of  a  municipal  corporation  as  being 
liable  for  injuries  resulting  from  malfeasance  or  nonfeasance  in  office. 

Cited  in  footnotes  to  Culver  v.  Streator,  6  L.  R.  A.  270,  which  holds  city  liable 
for  negligence  of  employee  enforcing  ordinance  against  unmuzzled  dogs  running 
at  large;  Curran  v.  Boston,  8  L.  R.  A.  243,  which  holds  city  not  liable  for  negli- 
gence of  workhouse  officers;  Bair  v.  Struck,  63  L.R.A.  4SJ,  which  holds  deputy 
sheep  inspector  liable  for  injury  due  to  negligently  dipping  sheep  in  improper 
bath;  Wilson  v.  Mitchell,  65  L.R.A.  158.  which  holds  that  municipality  cannot 
ratify  act  of  waterworks  superintendent  in  wrongfully  connecting  well  with  city 
water  mains  so  as  to  become  liable  for  water  taken  from  the  well. 

Cited  in  notes  (22  L.  R.  A.  824-82G,  830,  834)  on  personal  liability  of  highway 
officers  for  negligence;  (9  L.  R.  A.  210)  on  drains  and  sewers,  as  to  liability  of 
municipality  for  neglect  of  its  officers  or  agents:  (5  L.  R.  A.  254)  on  liability 
of  municipal  corporations  for  injuries  resulting  from  defective  streets/  bridges, 
etc.;  (108  Am.  St.  Rep.  367)  on  what  municipal  corporations  are  answerable  for 
injuries  due  to  defects  in  streets  and  other  public  places. 

Distinguished  in  Britton  v.  Green  Bay  &  Ft.  H.  Waterworks  Co.  81  Wis.  55, 
29  Am.  St.  Rep.  856,  51  X.  W.  84,  holding  water  company  not  liable  to  indi- 
viduals for  breach  of  contract  with  municipality;  Lawton  v.  Waite,  103  Wis. 
254,  45  L.  R.  A.  620,  79  N.  W.  321,  holding  liability  to  third  person  of  sureties 
of  subcontractor  to  carry  mail,  dependent  solely  upon  contract  of  suretyship. 

2  L.  R.  A.  368,  MEDFORD  v.  LEVY,  31   W.  Va.  649,   13  Am.  St.  Rep.  887,  8 

S.  K.  302. 
"Nuisance. 

Cited  in  Powell  v.  Bentley  &  G.  Furniture  Co.  34  W.  Va.  808,  12  L.  R.  A.  55, 
12  S.  E.  1085,  holding  great  caution  should  be  used  in  restraining  operation  of 
factory  because  of  noise;  Shellabarger  v.  Morris,  115  Mo.  App.  574,  91  S.  W. 
1005,  holding  the  conduct  of  defendant  in  making  various  kinds  of  noises  re- 
sulting in  such  nervous  agitation  as  impaired  her  ability  to  perform  her  work 
constituted  a  nuisance  that  would  be  abated. 

Cited  in  footnote  to  Pfingst  v.  Senn,  21  L.  R.  A.  569,  which  denies  right  to 
enjoin  as  nuisance  prospective  use  of  premises  as  beer  garden. 

Cited  in  notes  (107  Am.  St.  Rep.  226)  on  what  are  public  nuisances;  (118  Am. 
St.  Rep.  870)  on  nature  and  elements  of  private  nuisance. 

Distinguished  in  Koblegard  v.  Hale,  60  W.  Va.  41,  114  Am.  St.  Rep.  868,  53 
S.  E.  703.  9  A.  &  E.  Ann.  Cas.  732.  holding  an  injunction  would  not  lie  to  restrain 
an  adjoining  land  owner  from  maintaining  a  fence  on  the  ground  that  it  shut  out- 
light  and  air. 
Parties  must   come  into  court  of  equity  with  clean  hand*. 

Cited  in  Barnes  v.  Starr,  64  Conn.  155,  28  Atl.  980,  holding  agreement  to 
destroy  antenuptial  contract,  made  to  deceive  husband's  relatives,  not  enforceable; 
Ho  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.  174  Ind.  637,  30  L.R.A.(N.S-)  1057, 
92  X.  E.  1,  denying  injunction  against  pumping  oil  by  artificial  means,  where 
plaintiff  is  doing  same. 

Cited  in  footnote  to  Duncan  v.  Flanagan,  7  L.  R.  A.  412,  which  holds  failure 
to  set  up  joint  debtor's  discharge  in  bankruptcy  defense  to  action  against  him 
for  contribution. 


2  L.R.A.  308]  L.  R.  A.  CASES  AS  AUTHORITIES.  28fr 

Cited  in  note  (11  L.  R.  A.  458)   on  valid  trusts  as  to  suitor  coming  into  equity 
with  clean  hands. 

2  L.  R.  A.  372,  McNUTT  v.  McNUTT,  116  Ind.  545,  19  X.  E.  115. 
Requisites    and    validity    of    antenuptial    contracts    and    marriage    settle- 
ments. 

Cited  in  Moore  v.  Harrison,  26  Ind.  App.  411,  59  X.  E.  1077,  and  Ragsdale  v. 
Barnett,  10  Ind.  App.  485,  37  N.  E.  1109,  holding  law  favors  antenuptial  con- 
tracts; Spurlock  v.  Brown,  91  Tenn.  255,  18  S.  W.  868,  and  Carr  v.  Lackland,. 
112  Mo.  463,  20  S.  W.  624,  holding  marriage  good  consideration  for  agreement; 
Alkire  v.  Allure,  134  Ind.  359,  32  N.  E.  571,  holding  conveyance  to  children  not. 
shown  to  have  been  made  in  fraud  of  antenuptial  agreement ;  Wind  v.  Haas,. 
8  Pa.  Co.  Ct.  648,  holding  antenuptial  contract  does  not  require  formal  words : 
Thompson  v.  Tucker-Osborn,  111  Mich.  478,  69  N.  W.  730,  holding  antenuptial 
agreement  can  be  enforced  in  equity;  Carr  v.  Lackland.  112  Mo.  457,  20  S.  W. 
624,  holding  antenuptial  agreement  should  be  construed  according  to  intention 
of  parties  and  surrounding  circumstances;  Bowen  v.  S'.vander,  121  Ind.  168.  22 
N.  E.  725,  holding  intention  of  parties  to  antenuptial  agreement  was  to  deprive- 
themselves  of  all  rights  in  each  other's  property;  Kennedy  v.  Kennedy,  150  Ind. 
642,  50  N.  E.  756,  holding  parties  by  antenuptial  contract  intended  the  pro- 
visions should  be  in  lieu  of  wife's  legal  interest;  Buffington  v.  Buffington,  151 
Ind.  202,  51  X.  E.  328.  holding  antenuptial  contract  to  release  all  claims  to  prop- 
erty of  intended  husband  had  reference  to  disposition  on  death ;  Ragsdale  v~ 
Barnett,  10  Ind.  App.  489,  37  X.  E.  1109,  holding  antenuptial  agreement  in- 
tended only  life  estate  in  personal  property:  Mannan  v.  Mannan,  154  Ind.  12. 
55  N.  E.  855,  holding  acceptance  of  deed  of  land  in  lieu  of  interest  in  husband's 
estate  at  death  barred  such  interest;  Leach  v.  Rains.  149  Ind.  159,  48  X.  E.  858, 
holding  acceptance  of  deed  by  husband  in  lieu  of  interest  in  wife's  land  bars  his 
right  therein  as  survivor  under  statute;  Unger  v.  Mellinger,  43  Ind.  App.  527,  88 
X.  E.  74,  holding  persons  might  by  an  antenuptial  contract  regulate  the  descent 
of  their  property  regardless  of  the  laws  of  descent;  Xesmith  v.  Piatt,  137  Iowa. 
300,  314  X.  W.  1053,  holding  the  agreement  of  husband  to  pay  wife  one  thousand 
dollars  and  the  consideration  of  marriage  was  sufficient  consideration  to  support 
wife's  promise  not  to  claim  any  dower  in  his  estate;  Offutt  v.  Offutt,  106  M.I. 
242,  12  L.R.A.  (X.S.)  232,  124  Am.  St.  Rep.  491,  67  Atl.  138,  holding  a  widow  was 
entitled  to  the  specific  performance  of  a  promise  made  by  the  husband  before 
marriage  in  a  letter  written  to  her,  that  if  she  would  marry  him  he  would  care 
for  her  and  support  her  as  long  as  she  lived;  Appleby  v.  Appleby,  100  Minn.  428. 
10  L.R.A.(X.S.)  598,  117  Am.  St.  Rep.  709,  111  X.  W.  305.  2  A.  &  E.  Ann.  Cas. 
563.  holding  marriage  was  a  sufficient  consideration  to  support  an  antenuptial 
contract;  Rieger  v.  Schaible,  81  Xeb.  46,  17  L.R.A. (X.S.)  872,  115  X.  W.  560, 
16  A.  &  E.  Ann.  Cas.  700,  holding  an  antenuptial  contract  in  consideration  of 
marriage  and  the  release  by  each  party  of  all  interest  in  the  property  of  the 
other  is  based  upon  a  sufficient  consideration,  each  being  the  owner  of  property  in 
which  the  other  would  acquire  an  interest;  Unger  v.  Mellinger.  37  Ind.  App.  644, 
117  Am.  St.  Rep.  348,  77  X.  E.  814,  on  marriage  as  furnishing  a  sufficient  con- 
sideration for  an  antenuptial  contract;  Ellis  v.  Ellis.  1  Tenn.  Ch.  App.  206;  Deller 
v.  Deller,  141  Wis.  261,  25  L.R.A. (N.S.)  756,  124  X.  W.  278;  Frazer  v.  Andrews, 
134  Iowa,  625,  11  L.R.A.(X.S-)  596,  112  X.  W.  92,  13  A.  &  E.  Ann.  Cas.  408,— 
on  antenuptial  contracts  as  being  liberally  construed  in  order  to  give  them  effect. 

Cited  in  footnotes  to  Hunt  v.  Hunt,  59  L.  R.  A.  306,  which  holds  parol  con- 
tract to  convey  land  in  consideration  of  marriage  not  validated  by  marriage; 
Wright  v.  Wright,  55  L.  R.  A.  261,  which  holds  marriage  sufficient  to  support: 


287  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  38* 

promise  by  groom's  father  to  maintain  bride  and  child  if  groom  fails  to. 

Cited  in  note   (13  L.  R,  A.  712)   on  antenuptial  settlement. 

Limited  in  Lamb  v.  Lamb,  130  Ind.  277,  30  Am.  St.  Rep.  227,  30  N.  E. 
36,  holding  antenuptial  agreement  fraudulently  procured  should  be  set  aside. 
How  action  to  quiet  title  triable. 

Cited  in  Puterbaugh  v.  Puterbaugh,   131  Ind.  294,  15  L.  R.  A.  345,  30  N.  E. 
519,  holding  action  to  quiet  title  triable  by  jury. 
In  what  capacity  widow  taken  interest  in  husband's  estate. 

Cited   in   Amos  v.   Amos,   117   Ind.   39,   19   N.   E.   543,  holding   under   statute 
widow  takes  interest  by  virtue  of  marital  rights,  and  not  as  heir. 
How  judgment  corrected. 

Cited  in  Evans  v.  State,  150  Ind.  656,  50  N.  E.  820,  holding  form  or  substance- 
of  judgment  must  be  first  corrected  by  motion  to  modify  in  court  below.       , 
Disc-ret  ion  in  admission  of  evidence. 

Cited  in  Roush  v.  Roush,  154  Ind.  572,  55  N.  E.  1017,  holding  admissioit 
of  evidence  discretionary;  Calkins  v.  Seabury-Calkins  Consol.  Min.  Co.  5  S.  D. 
306,  58  N.  W.  797,  holding  discretionary  to  reopen  case;  Re  Devoe,  113  Iowa,. 
11,  84  N.  W.  923,  holding  secondary  evidence  of  lost  instrument  admissible. 

2  L.  R.  A.  380,  THE  CITY  OF  SALEM,  37  Fed.  846. 

Adhered  to  on   subsequent   hearing,   4   L.   R.   A.    125,    13   Sawy.   614,   38   Fed.. 
762. 
Xavigable  waters. 

Cited  in  note   (5  L.  R.  A.  687)   on  ownership  of  banks  and  shores  of  navigable- 
waters. 
Craft  subject   to  rules  as  to  carriage  of  passengers. 

Cited  in  The  Scow  No.  1,  169  Fed.  718,  holding  a  scow  liable  to  penalties  for 
carrying  passengers  without  sufficient  life  preservers,  notwithstanding  she  re- 
ceived no  actual  compensation. 

2  L.  R.  A.  384,  BUFFALO  EAST  SIDE  STREET  R.  CO.  v.  BUFFALO  STREET 

R.  CO.  Ill  N.  Y.  132,  19  N.  E.  63. 
Construction   of  contracts. 

Cited  in  Grand  v.  Livingston,  4  App.  Div.  595,  38  N.  Y.  Supp.  490,  constru- 
ing release  for  negligence  by  lex  loci,  where  contrary  not  intended  by  carrier  or 
reasonable  for  shipper;   Gail  v.  Gail,  127  App.  Div.  896,  112  X.  Y.  Supp.  96,  on 
how  words  used  in  a  contract  are  to  be  construed. 
Presumption  of  constitutionality. 

Cited  in  Beardsley  v.  New  York,  L.  E.  &  W.  R.  Co.  17  Misc.  259,  40  N.  Y. 
Supp.  1077,  holding  constitutionality  of  regulation  of  railroad  fares  presumed. 
Impairing  contract  obligations. 

Cited  in  Blume  v.  Interurban  Street  R.  Co.  41  Misc.  174,  83  N.  Y.  Supp.  989, 
sustaining  statute  requiring  railroad  to  give  transfers  over  all  lines  of  system 
within  city;  Topham  v.  Interurban  Street  R.  Co.  42  Misc.  510.  86  N.  Y.  Supp. 
295,  holding  corporation  leasing  street  railroads  receiving  franchises  before  en- 
actment of  statute  requiring  free  transfers  liable  for  refusing  transfers;  Budd 
v.  New  York,  143  U.  S.  531,  36  L.  ed.  251,  12  Sup.  Ct.  Rep.  468,  Aflirming 
People  v.  Budd,  117  N.  Y.  11,  5  L.  R.  A.  564,  15  Am.  St.  Rep.  460,  22  N.  E. 
670,  upholding  legislative  regulation  of  elevator  charges;  \Yhit..  v.  Farmers' 
Highline  Canal  &  Reservoir  Co.  22  Colo.  200,  31  L.  R.  A.  831,  43  Pac.  1028, 
holding  legislature  may  regulate  distribution  of  water  by  ditch  companies  for 
hire,  without  impairing  existing  contracts;  New  York  v.  Herdje,  68  App.  Div. 


2  L.R.A.  384]  L.  R.  A.  CASES  AS  AUTHORITIES.  288 

:!74.  74  X.  Y.  Supp.  104,  holding  law  destroying  inchoate  right  to  build  tene- 
ment contracted  for,  within  police  power;  Regan  v.  Fosdick,  19  Misc.  493,  43 
X.  Y.  .Supp.  1102,  holding  tenant  quarantined  under  health  laws  not  liable  for 
penalty  for  holding  over;  Coxe  v.  State,  144  X.  Y.  407,  39  X.  E.  400,  holding 
legislative  grant  of  land  under  tide  waters  revocable  by  subsequent  legislature; 
State  ex  rel.  Payne  v.  Kinloch  Teleph.  Co.  93  Mo.  App.  358,  67  S.  W.  684,  holding 
that  courts  may  compel  telephone  company  to  render  service;  Board  of  Educa- 
tion v.  Phillips,  67  Kan.  552,  73  Pac.  97,  holding  change  in  statute  so  as  to 
permit  issuance  of  additional  school  bonds  not  unconstitutional  as  impairing 
contract  of  holder  of  former  bonds;  Rochester  v.  Rochester  R.  Co.  382  X.  Y.  115, 
70  L.R.A.  780,  74  X.  E.  953,  holding  a  statute  exempting  street  railroad  company 
from  the  expenses  of  new  pavement  for  a  certain  time  did  not  prevent  such  rail- 
road from  being  made  to  share  in  the  expense  of  repaving  such  streets;  People 
ex  rel.  Cohoes  R.  Co.  v.  Public  Service  Commission,  143  App.  Div.  778,  128  X.  Y. 
Supp.  384;  Boswell  v.  Security  Mut.  L.  Ins.  Co.  119  App.  Div.  733,  104  X.  Y.  Supp. 
130,  on  the  exercise  of  the  police  power  by  legislature  as  not  to  be  limited  by 
provisions  of  contracts  between  individuals  or  corporations. 

Cited  in  notes  (19  L.  R.  A.  571)  on  regulation  of  carriage  by  street  railroad; 
(33  L.  R.  A.  180)  on  legislative  power  to  fix  tolls,  rates,  or  prices. 

Distinguished  in  Bronk  v.   Barckley,   13   App.   Div.   80,   43   XT.   Y.   Supp.   400, 
holding  authorized  contract  for  convict  labor  cannot  be  impaired  by  state. 
Constitutionality  of  statute. 

Cited  in  People  v.  Budd,  7  N.  Y.  Crim.  Rep.  199,  holding  a  statute  fixing  a 
maximum  charge  for  elevating  grain  was  valid  and  constitutional;  El  Paso  & 
S.  W.  R.  Co.  v.  Foth,  101  Tex.  140,  105  S.  W.  322,  45  Tex.  Civ.  App.  275,  100  S.  W. 
171,  on  act  declaring  the  doctrine  of  fellow  servants  shall  not  apply  in  certain 
cases  as  not  being  unconstitutional;  Smith  v  Stephens,  173  Ind.  573,  30  L.R.A. 
<N.S.)  708,  91  N.  E.  167,  holding  valid,  bank  stock  tax  act  which  deals  alike  with 
all  in  same  class. 

Cited  in  notes  (6  L.R.A.(X.S.)   835)  on  businesses  affected  with  public  interest 
subjecting  them  to  regulation  and  control  in  respect  to  rates  or  prices;    (62  Am. 
St.  Rep.  290)  on  regulation  of  rates. 
Legislative  exercise  of  police  power. 

Cited  in  People  ex  rel.  Annan  v.  Walsh,  7  X.  Y.  Crim.  Rep.  226  (dissenting 
opinion),  on  the  extent  of  authority  of  legislature  in  the  exercise  of  the  police 
power. 

2  L.  R.  A.  387,  Re  McGRAW,   111  N.  Y.  66,  19  X.  E.  233. 

Affirmed  sub  nom.  Cornell  University  v.  Fiske,   136  U.  S.   176,  34  L.  ed.  434, 
10  Sup.  Ct.  Rep.  775. 
Inclusion  of  "purchase." 

Cited  in  Fosdick  v.  Hempstead,  29  X.  Y.  S.  R.  546,  8  X.  Y.  Supp.  772,  hold- 
ing town  with  power  to  purchase  and  hold  personalty  may  take  by  bequest. 
General   laws   indicate   policy  as   to   mortmain. 

Cited  in  Scott  v.  Ives,  22  Misc.  755,  51  X.  Y.  Supp.  49,  and  Amherst  College 
v.  Ritch,  151  N.  Y.  333,  37  L.  R.  A.  324,  45  N.  E.  876,  both  holding  such  policy 
appears  in  few  general  and  many  special  acts;  Re  Lampson,  33  App.  Div.  59, 
53  N.  Y.  Sxipp.  531,  holding  special  enactment  to  be  looked  to  in  absence  of 
general  statute. 
Forfeiture  for  taking-  property  over  charter  limit. 

Cited  in  Lancaster  v.  Amsterdam  Improvement  Co.  140  N.  Y.  586,  24  L.  R. 
A.  331,  35  X.  E.  964,  holding  corporate  deed  presumed  valid. 


289  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  387 

Cited   in   note    (5   L.R.A.    109)    on   sustaining   trust   where   purposes   separ- 
able. 
Devise  in  excess  of  limitation  npon  corporate  property. 

Cited  in  Norton  v.  House  of  Mercy,  41  (j.  C.  A.  463,  101  Fed.  389,  stating 
principle;  Wood  v.  Hammond,  16  R.  I.  118,  17  Atl.  324,  holding  corporation 
cannot  take  as  devisee  in  excess  of  charter  limit;  Brigham  v.  Peter  Bent  Brigham 
Hospital,  126  Fed.  801;  Phoenix  v.  Columbia  College,  87  App.  Div.  438,  84  N.  Y. 
Supp.  897, — on  gift  to  corporation  in  excess  of  amount  which  it  is  allowed  to 
take  as  being  void  as  to  the  excess. 

Cited  in  footnote  to  Joseph  Bancroft  &  Sons  Co.  v.  Bloede,  52  L.  R.  A. 
734.  which  sustains  power  of  cotton  manufacturing  company  to  purchase  stock 
in  company  manufacturing  dyes  used  by  former. 

Cited  in  note  (21  L.  R.  A.  793)  on  constitutionality  of  statutes  restricting 
contracts  and  business. 

Distinguished  in  Hornberger  v.  Miller,  28  App.  Div.  203,  50  N.  Y.  Supp. 
1079,  holding  devise  to  corporation  good  as  against  objection  of  excess  over 
power  to  take,  where  excess  not  shown;  Farrington  v.  Putnam,  90  Me.  423,  38 
L.  R.  A.  346,  37  Atl.  652,  holding  bequest  to  incorporated  charitable  in- 
stitution in  excess  of  statutory  limit  not  void,  but  voidable. 

Disapproved  in  Hubbard  v.  Worcester  Art  Museum,  194  Mass.  283,  9  L.R.A. 
(X.S.)  692.  80  X.  E.  490,  10  A.  &  E.  Ann   Cas.  1025,  holding  a  gift  to  a  charitable 
corporation  in  an  amount  in  excess  of  the  amount  it  is  allowed  to  receive  is  good 
against  everyone  except  the  state. 
Power  of  corporation   to  acqnire   property. 

Cited  in  Hanna  v.  Kelsey  Realty  Co.  145  Wis.  281,  33  L.R.A.  (N.S.)   361,  140 
Am.  St.  Rep.  1075,  129  N.  W.  1080,  holding  absolutely  void,  conveyance  of  realty 
to  foreign  corporation  which  has  not  complied  with  statutory  conditions  of  ac- 
quiring property. 
Review  of  surrogate's  decision  on  undisputed  facts. 

Cited  in  Re  Moulton,  32  N.  Y.  S.  R.  642,  10  N.  Y.  Supp.  717,  reviewing  ques- 
tions of  fact  which  were  before  surrogate. 
Who  may  question  power  to  take  devise. 

Cited  in  House  of  Mercy  v.  Davidson,  90  Tex.  523,  39  S.  W.  924,  holding  that 
heirs  may  set  up  incapacity  of  devisee  in  will  to  accept  devise;  South  &  North 
Ala.  R.  Co.  v.  Highland  Ave.  &  Belt.  R.  Co.  119  Ala.  117,  24  So.  114,  refusing  spe- 
cifically to  enforce  contract  for  property  complainant  incapacitated  to  hold. 

Cited  in  notes  (32  L.R.A.  297)  on  right  of  private  persons  to  contest  corporate 
power  to  take  or  hold  property;  (60  Am.  St.  Rep.  320)  on  right  of  heirs  to  aasail 
legacy  to  corporation. 

Distinguished  in  Heiskell  v.  Chickasaw  Lodge,  No.  8,  I.  O.  O.  F.  87  Tenn. 
686,  4  L.  R.  A.  706,  11  S.  W.  825,  holding  that  state  only  can  question  legal 
capacity  of  corporation  as  trustee;  Moskowitz  v.  Hornberger,  20  Misc.  562, 
40  X.  Y.  Supp.  462,  holding  apparently  legal  devise  to  corporation  not  subject 
to  attack  by  purchaser  from  intermediate  grantee. 

Disapproved  in  Hanson  v.  Little  Sisters  of  the  Poor,  79  Md.  440,  32  L.  R.  A. 
298,  32  Atl.  1052,  and  Re  Stickney,  85  Md.  106,  35  L.  R.  A.  697,  60  Am.  St.  Rep. 
308.  36  Atl.  654,  both  holding  capacity  of  corporation  as  devisee,  in  excess  of 
charter  limit,  not  to  be  questioned  by  heirs. 
Liability    for    interest. 

Cited  as  obiter  in  People  ex  rel.  Cornell  University  v.  Davenport,  117  N. 
Y.  563,  23  N.  E.  664,  holding  state  only  obligated  to  pay  income  from  safe 
investments. 

L.R.A.  Au.  Vol    I.— 19. 


2  L.R.A.  387]  L.  R.  A.  CASES  AS  AUTHORITIES.  290 

Residuary  legacies. 

Cited  in  Tyler  v.  Tallman,  29  R.  I.  60,  68  Atl.  948,  considering  what  would 
pass  under  a  residuary  devise  under  terms  of  will. 
Necessity  of  capable  trustee  for  gift. 

Cited  in  Fitchie  v.  Brown,  211  U.  S.  335,  53  L.  ed.  208,  29  Sup.  Ct.  Rep.  106, 
holding  the  validity  of  a  trust  was  not  affected  by  whether  or  not  the  trustee 
named  in  the  will  can  act  as  such. 
Equitable   conversion. 

Cited  in  note  (7  Eng.  Rul.  Cas.  23)  on  equitable  conversion  of  realty  into  per- 
sonalty, and  vice  versa. 

2  L.  R.  A.  405,  BRADSTREET  CO.  v.  GILL,  72  Tex.  115,  13  Am.  St.  Rep.  768, 
9   S.   W.   753. 


question  of  agency  determined. 

Cited  in  Walsh  v.  Peterson,  59  Neb.  651,  81  N.  W.  853,  holding  question 
of  agency  for  jury  under  instructions  of  court,  where  evidence  disputed  and 
inference  doubtful. 

Distinguished  in  Olsen  &  Walke  v.  California  Ins.  Co.  11  Tex.  Civ.  App.  372, 
32   S.   W.   446,   holding  court  to  determine   question   of   agency,   where   no   plea 
filed,  for  determining  jurisdiction  to  render  default  judgment. 
When   agency   exists. 

Cited  in  English  v.  Mitchell  Cattle  Co.  8  Wyo.  90,  55  Pac.  310,  and  Harrison 
v.  Legore,  109  Iowa,  620,  80  N.  W.  670,  holding  agency  established  by  conduct, 
irrespective  of  assertions;  Norwood  v.  Alamo  F.  Ins.  Co.  13  Tex.  Civ.  App.  480, 
35  S.  W.  717,  holding  agency  not  within  contract  of  appointment,  only  provable 
independently  thereof,  by  showing  acceptance. 

Cited  in  note   (23  L.  R.  A.  497)    on  who  may  be  served  with  process  in  suit 
against    foreign    corporation. 
Mercantile  rating:  as  libel. 

Cited  in  note  (25  L.R.A.  (N.S.)  1021)  on  giving  indefinite  mercantile  rating,  or 
refusal  to  give  any,  as  libel. 
Sufficiency  of  allegation  in  libel  snit. 

Cited  in  Brown  v.  Durham,  3  Tex.  Civ.  App.  250,  22  S.  W.  868,  holding 
petition  should  specify  libelous  words  of  exhibits  by  direct  allegation;  Dunn  v. 
State,  43  Tex.  Crim.  40,  63  S.  W.  571  (dissenting  opinion),  majority  holding 
indictment  showing  threatening  notice,  alleged  to  be  sent  to  frighten  recip- 
ient, sufficient  without  averments  explanatory  of  drawings  and  language  therein. 
Necessity  of  alleging:  damages. 

Cited  in  Hirshfield  v.  Ft.  Worth  Nat.  Bank,  83  Tex.  456,  15  L.  R.  A.  641, 
29  Am.  St.  Rep.  660,  18  S.  W.  743,  holding  petition  for  libel,  not  alleging  spe- 
cial damages,  insufficient  unless  words  actionable  per  se;  Burton  v.  O'Neill,  6 
Tex.  Civ.  App.  616,  25  S.  W.  1013,  holding  special  damages  need  not  be  al- 
leged where  alleged  words  libelous  per  se. 
Parol  evidence  as  to  writing. 

Cited  in  note    (6  L.  R.  A.  43)    on  admissibility  of  parol   evidence  to  show 
meaning  of  words  and  phrases. 
Privileged  communications. 

Cited  in  Mitchell  v.  Bradstreet  Co.  116  Mo.  239,  20  L.  R.  A.  142,  38  Am.  St. 
Rep.  592,  22  S.  W.  358,  and  Pol  la  sky  v.  Minchener,  81  Mich.  286,  9  L.  R.  A. 
105,  and  footnote  p.  102,  21  Am.  St.  Rep.  516,  46  N.  W.  5,  holding  commercial 
agency's  false  communications  to  subscribers  generally  not  privileged;  Runge 


291  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  408 

v.  Franklin,  72  Tex.  589,  3  L.  R.  A.  423,  13  Am.  St.  Rep.  833,  10  S.  W.  721, 
holding  all  proceedings  in  civil  courts  privileged  as  against  suit  for  libel; 
Missouri  P.  R.  Co.  v.  Behee,  2  Tex.  Civ.  App.  109,  21  S.  W.  384,  holding  employ- 
er's false  statement  in  communication  for  own  business  privileged  where  with- 
out malice;  Robinson  v.  Dun,  28  Ont.  Rep.  24,  holding  the  qualified  privilege 
of  a  commercial  agency  in  publishing  a  report  concerning  a  trader  was  destroyed 
where  evidence  of  want  of  reasonable  care  in  collecting  the  information;  Hunt  v. 
Fidelity  Mut.  L.  Ins.  Co.  167  Ala.  198,  51  So.  1000,  on  whether  publication  of 
conviction  of  swindling  mutual  life  insurance  company  in  its  own  magazine  sent 
only  to  its  policyholders  is  privileged. 

Cited  in  footnotes  to  Douglass  v.  Daisley,  57  L.  R.  A.  475,  which  denies  privi- 
lege, as  matter  of  law,  to  communication  by  commercial  agency  that  assignor, 
to  secure  indorser,  had  made  assignment  for  creditors;  Mitchell  v.  Bradstreet 
Co.  20  L.  R.  A.  138,  which  holds  voluntary  publication  by  mercantile  agency 
of  false  statement  that  firm  has  assigned  not  privileged;  Pollasky  v.  Micnhener, 
9  L.  R.  A.  102,  which  holds  false  communication  by  commercial  agency  to  unin- 
terested members  not  privileged;  Woodruff  v.  Bradstreet  Co.  5  L.  R.  A.  555, 
which  holds  publication  that  judgment  recovered  against  merchant  or  trader 
libelous:  Conroy  v.  Pittsburgh  Times,  11  L.  R.  A.  725,  which  holds  privileged 
communication  one  properly  made,  on  proper  occasion,  from  proper  motive,  on> 
probable  cause;  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged. 

Cited  in  notes  (9  L.R.A.  621)  on  definition  of  "libel;"  (20  L.R.A.(N.S.)  366) 
on  privilege  as  affected  by  extent  of  publication;  (36  LR.A.(N.S.)  452)  on  privi- 
lege of  communications  between  principal  and  agent;  (15  Am.  St.  Rep.  349)  on 
privileged  newspaper  libel;  (104  Am.  St.  Rep.  115,  146)  on  what  libelous  state- 
ments are  privileged;  (9  Eng.  Rul.  Cas.  82)  as  to  what  communications  enjoy  a 
qualified  privilege;  (2  Brit.  Rul.  Cas.  216,  217)  on  report  of  mercantile  agency  as 
a  privileged  communication. 
Inference  of  malice  from  publication. 

Cited  in  Coles  v.  Thompson,  7  Tex.  Civ.  App.  668,  27  S.  W.  46,  and  St.  James 
Military  Academy  v.  Gaiser,  125  Mo.  527,  28  L.  R.  A.  676,  46  Am.  St.  Rep. 
502,  28  S.  W.  851,  holding  malice  to  be  implied  from  false  publication. 

Cited  in  note   (15  Am.  St.  Rep.  337)   on  presumption  of  malice  in  newspaper 
libel. 
Evidence  admissible  In  libel. 

Cited  in  Foster-Milburn  Co.  v.  Chinn,  134  Ky.  428,  34  L.R.A.(N.S.)  1140,  135 
Am.  St.  Rep.  417,  120  S.  W.  364,  holding  in  an  action  of  libel  evidence  of  wit- 
ness as  to  the  effect  the  publication  would  have  on  the  standing  of  complainant 
was  inadmissible. 

Cited  in  note  (35  L.R.A.(N.S.)  1121)  on  admissibility  of  opinion  as  to  damaging 
effect  of  libel  or  slander. 
Locality  of  jurisdiction  of  state   court   over   foreign   corporation. 

Cited  in  note  (70  L.R.A.  698)  on  locality  of  jurisdiction  of  state  court  over 
foreign  corporation  as  determined  by  location  of  agent. 

2    L.    R.    A.    408,    STATE    v.    INTOXICATING    LIQUORS,    76    Iowa,    243,    41 

N.    W.    6. 
Intoxicating:  liquors. 

Cited  in  Com.  v.  Brelsford,  161  Mass.  63,  36  N.  E.  677,  holding  within  power 
of  legislature  to  define  "intoxicating  liquors;"  State  v.  Colvin,  127  Iowa,  632, 
103  X.  W.  968,  holding  evidence  inadmissible  to  show  liquor  proved  to  contain 


2  L.R.A.  408]  L.  R.  A.  CASES  AS  AUTHORITIES.  292 

alcohol  is  not  intoxicating;  State  v.  Frederickson,  101  Me.  44,  6  L.R.A.(N.S.)  190, 
115  Am.  St.  Rep.  295,  63  Atl.  535,  8  A.  &  E.  Ann.  Cas.  48,  holding  it  immaterial 
whether  liquor  is  intoxicating  in  fact,  if  it  comes  within  scope  of  forbidden 
enumeration  of  statute  enumerating  liquors  and  declaring  them  intoxicating, 
and  sustaining  power  of  legislature  to  enact  such  statute;  State  v.  Wills,  154  Mo. 
App.  612,  136  S.  W.  25;  State  v.  Martin,  230  Mo.  18,  139  Am.  St.  Rep.  628,  129 
S.  W.  931, — holding  intoxicating,  beverage  containing  any  alcohol;  Luther  v. 
State,  83  Neb.  460,  20  L.R.A.(N.S.)  1150,  120  N.  W.  125,  holding  statute  regu- 
lating sale  of  malt  liquors  not  construed  as  meaning  intoxicating  malt  liquors; 
State  v.  York,  74  N.  H.  127,  65  Atl.  685,  13  A.  &  E.  Ann  Cas.  116.  holding  it 
unnecessary  to  allege  in  indictment  and  prove  that  liquor  whose  sale  is  forbidden 
by  statute  is  intoxicating;  State  v.  Fargo  Bottling  Works  Co.  19  N.  D.  409,  26 
L.R.A.(N.S.)  880,  124  N.  W.  387,  holding  any  liquor  containing  alcohol  when 
declared  by  the  legislature  to  be  an  intoxicating  liquor  will  be  so  regarded  by 
the  courts  whether  or  not  its  ordinary  use  will  produce  intoxication  in  ordinary 
man;  R.  v.  Bigelow,  41  N.  S  502,  as  to  when  liquor  intoxicating;  State  v.  Walder, 
83  Ohio  St.  87,  93  N.  E.  531,  holding  it  unlawful  to  sell  malt  liquor  in  local 
option  county,  whether  intoxicating  or  not. 

Cited  in  footnotes  to  Carl  v.  State,  4  L.  R.  A.  380,  which  holds  medicinal  bit- 
ters containing  alcohol  intoxicating  or  not,  according  to  other  ingredients; 
Com.  v.  Reyburg,  2  L.  R.  A.  415,  which  holds  it  question  for  jury  whether 
cider  vinous  or  spirituous. 

Cited  in  notes  (6  L.  R.  A.  669)  on  beer  as  intoxicating  liquor;  (7  L.  R.  A. 
297)  on  construction  of  statutes  forbidding  manufacture  and  sale  of  spirit- 
uous liquors;  (20  L.  R.  A.  645)  on  what  liquors  within  statutory  restrictions 
as  to  sale  of  "spirituous,"  "vinous,"  "fermented,"  and  other  intoxicating  li- 
quors; (6  L.R.A.(N.S.)  187)  on  power  of  state  to  declare  certain  liquor  intoxi- 
cating irrespective  of  actual  character. 

2  L.  R.  A.  409,  NASH  v.  BREWSTER,  39  Minn.  530,  41  N.  W.  105. 
Sales;  wlien  title  passes. 

Cited  in  Rail  v.  Little  Falls  Lumber  Co.  47  Minn.  425,  50  N.  W.  471,  hold- 
ing actual  delivery  not  necessary  to  pass  title  to  chattels  designated  in  con- 
tract; Mackellar  v.  Pillsbury,  48  Minn.  401,  51  N.  W.  222,  holding  title  passes 
on  sale  of  certain  number  of  articles  out  of  greater  number,  if  parties  so  in- 
tend, without  actual  separation;  Loud  v.  Pritchett,  104  Ga.  653,  30  S.  E.  870, 
holding  sale  of  standing  timber,  to  be  felled  by  vendee,  passes  title;  Jennison 
v.  Thompson,  68  Minn.  335,  71  N.  W.  380,  holding  whether  title  passes  before 
delivery  of  wheat  to  be  taken  from  greater  quantity  question  for  jury;  O'Keefe 
v.  Leistikow,  14  N.  D.  360,  ]04  N.  W.  515,  9  A.  &  E.  Ann  Cas.  25,  holding  title 
to  flax  not  prevented  from  passing,  though  unseparated  from  other  flax  with 
which  mixed;  Creelman  Lumber  Co.  v.  De  Lisle,  107  Mo.  App.  628,  82  S.  W.  205, 
holding  title  to  lumber  passed  when  stacked,  estimated,  marked  with  "buyer's 
initials  and  payment  made  on  estimate. 

Cited  in  footnotes  to  Tyler  Lumber  Co.  v.  Charlton,  55  L.R.A.  301,  which 
holds  title  does  not  pass  by  acceptance  of  offer  to  sell  lumber  piled  at  mill  to 
be  inspected  by  common  employee;  Feeley  v.  Boyd,  65  L.R.A.  943,  which  holds 
immediate  delivery  followed  by  actual  and  continued  change  of  possession  of 
fruit  in  bins  shown  by  purchaser  sending  representative  the  same  evening  to  take 
possession,  and  sending  man  the  next  morning  to  prepare  for  shipment. 

Cited  in  note  (26  L.R.A.(N.S.)  18,  22,  56,  59)  on  sufficiency  of  selection  or 
.designation  of  goods  sold  out  of  larger  lot. 


293  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  411 

Seed-grain    notes:    rights    of    bolder. 

Cited  in  Scofield  v.  National  Elevator  Co.  64  Minn.  531,  67  N.  W.  645, 
holding  owner  of  seed-grain  note  may,  upon  allegation  of  facts,  maintain  action 
for  conversion  against  purchaser;  Warder-Bushnell  &  G.  Co.  v.  Minnesota  & 

D.  Elevator  Co.  44  Minn.  391,  46  N.  W.  773,  holding  payee  of  seed-grain  note, 
furnishing  grain  covered  by  maker's  chattel  mortgage,  has  valid  lien  on  crop; 
Smith   v.  Roberts,  43   Minn.  343,  46  N.  W.  336,  holding  ante-dated   seed-grain 
note  given  after  grain  delivered  not  valid  lien  on  crop;  Endreson  v.  Larson,  101 
Minn.  422,  118  Am.  St.  Rep.  631,  112  N.  W.  628,  holding  title  of  payee  complete 
upon  execution  of  note  and  delivery  of  grain  shortly  thereafter. 

2  L.  R.  A.  411,  NEW  YORK  &  C.  GRAIN  STOCK  &  EXCHANGE  v.  CHICAGO 

BD.  OF  TRADE,   127  111.   153,  11  Am.  St.  Rep.   107,  19  N.  E.  855. 
Compulsory  pnblc  service  without  discrimination. 

Cited  in  Willoughby  v.  Chicago  Junction  R.  &  U.  S.  Co.  50  N.  J.  Eq.  695, 
25  Atl.  277,  holding  private  corporation  charged  with  public  duty  obliged  only 
to  serve  all  alike,  at  uniform  rate;  Board  of  Trade  v.  C.  B.  Thompson  Com- 
mission Co.  103  Fed.  903,  and  Board  of  Trade  v.  Hadden-Krull  Co.  109  Fed. 
706,  holding  "public  interest,"  entitling  applicants  to  receive  quotations  without 
unjust  discrimination,  does  not  deprive  compiler  of  property  right  prior  to 
publication;  Inter-Ocean  Pub.  Co.  v.  Associated  Press,  184  111.  450,  48  L.  R. 
A.  574,  75  Am.  St.  Rep.  184,  56  N.  E.  822,  holding  private  news  gathering  corpo- 
ration, having  devoted  its  business  to  public  use,  cannot  discriminate  against 
purchasers  of  news;  Board  of  Trade  v.  Riordan,  94  111.  App.  308,  holding  board, 
in  disciplining  member,  cannot  deprive  him  of  use  of  market  quotations;  Kerz 
v.  Galena  Water  Co.  139  111.  App.  604,  holding  city  water,  gas,  electric  light, 
street  car  and  like  corporations  bound  to  treat  patrons  without  unjust  discrimi- 
nation; Western  U.  Teleg.  Co.  v.  State,  165  Ind.  501,  3  L.R.A.(N.S.)  158,  76  N. 

E.  100,  6  A.  &  E.  Ann.  Gas.  880,  holding  it  duty  of  telegraph  company  to  supply 
elevator  company  with  continuous  quotations  of  board  of  trade  without  discrimi- 
nation, and  upon  same  terms  exacted  of  others. 

Cited  in  footnote  to  State  v.  Edwards,  25  L.  R.  A.  504,  which  holds  valid 
limitation  of  amount  of  toll  for  grinding. 

Cited  in  notes  (31  L.  R.  A.  804)  on  public  regulation  as  to  operation  of 
electric  lines;  (15  L.  R.  A.  322)  on  compulsory  service  by  party  whose  busi- 
ness it  is  to  serve  public. 

Distinguished  in  American  Live  Stock  Commission  Co.  v.  Chicago  Live  Stock 
Exchange,  143  111.  239,  18  L.  R.  A.  200,  36  Am.  St.  Rep.  385,  32  N.  E.  274, 
holding  courts  will  not  interfere  with  private  business  affecting  public  inter- 
ests through  its  magnitude,  but  never  devoted  to  public  use;  State  ex  rel. 
Star  Pub.  Co.  v.  Associated  Press,  159  Mo.  463,  51  L.  R.  A.  169,  81  Am.  St.  Rep. 
368,  60  S.  W.  91,  holding  business  of  news  gathering  not  impressed  with 
public  use,  making  undiscriminating  service  compulsory;  Re  Renville,  46  App. 
Div.  44,  61  N.  Y.  Supp.  549,  holding  telegraph  company  not  required  to  furnish 
quotations  furnished  to  it  by  stock  exchange  for  specific  purpose;  Dickinson  v. 
Chicago  Bd.  of  Trade,  114  111.  App  305,  sustaining  expulsion  of  member  of  board 
of  trade  for  violating  rule  against  charging  less  than  specified  rate  of  commis- 
sion; Board  of  Trade  v.  Christie  Grain  &  Stock  Co.  198  U.  S.  251,  49  L.  ed.  1039, 
25  Sup.  Ct.  Rep.  637,  holding  that  though  quotations  of  board  of  trade  are 
clothed  with  public  use,  persons  are  not  entitled  to  get  and  use  them. 

Limited  in  Christie  Street  Commission  Co.  v.  Board  of  Trade,  92  111.  App. 
606,  94  111.  App.  237,  holding  equity  will  not  compel  furnishing  of  market 
quotations,  though  impressed  with  public  interest,  for  unlawful  purpose;  Cen- 


2  L.R.A.  411]  L.  R.  A.  CASES  AS  AUTHORITIES.  294 

tral  Stock  &  G.  Exchange  v.  Board  of  Trade,  196  111.  409,  63  N.  E.  740,  holding 
board  of  trade  cannot  be  compelled  to  furnish  quotations  used  in  unlawful  busi- 
ness. 

Regulative  power  over  business  affected  with  pnbljc  Interest. 

Cited  in  Ratcliff  v.  Wichita  Union  Stock-Yards  Co.  74  Kan.  10,  6  L.R.A. (X.S.) 
841,  118  Am  St.  Rep.  298,  86  Pac.  150,  10  A.  &  E.  Ann.  Cas.  1016,  holding  stock- 
yards business  clothed  with  public  interest  and  subject  to  regulation  and  control 
by  state;  State  v.  Duluth  Bd.  of  Trade,  107  Minn.  522,  23  L.R.A. (N.S.)  1269,  121 
N.  W.  395,  holding  legislature  may  require  persons  selling  grain  on  commission 
to  take  out  license  and  execute  bond  for  protection  of  persons  dealing  with  them; 
People  v.  Steele,  231  111.  347,  14  L.R.A.(X.S.)  366,  121  Am.  St.  Rep.  321,  83  X  E. 
236,  holding  act  to  prohibit  sale  of  tickets  for  more  than  price  printed  thereon 
for  theaters,  circuses  and  places  of  amusement  unconstitutional. 

Cited  in  note  (62  Am.  St.  Rep.  291,  295)  on  regulation  of  rates. 
Property  rights  in  market   quotations. 

Cited  in  note  (7  L.R.A.(N.S.)  894,  898)  on  property  rights  in  market  quota- 
tions. 

2   L.   R.   A.   415,   COM.   v.   REYBURG,    122   Pa.   299,    16   Atl.    351. 
Liquors  comprehended  by  laws  agrainst   sale. 

Cited  in  Luther  v.  State,  83  Neb.  460,  20  L.R.A.(N.S.)  1150,  120  X.  W.  125, 
holding  statute  regulating  sale  of  malt  liquors  not  to  be  construed  as  meaning 
intoxicating  malt  liquors;  Com.  v.  Wenzel,  24  Pa.  Super.  Ct.  468,  holding  defend- 
ant who  was  conclusively  proved  to  have  sold  drink  containing  alchohol,  was 
guilty  of  selling  drink  containing  admixture  of  spirituous,  vinous,  malt,  or 
brewed  liquors  without  license. 

Cited  in  notes   (9  L.  R.  A.  814)   on  construction  of  Pennsylvania  liquor  laws; 
(20  L.  R.  A.  646,  649)   on  what  liquors  within  statutory  restrictions  as  to  sale 
of  "spirituous,"  "vinous,"  "fermented"  and  other  intoxicating  liquors;    (12  Am. 
St.  Rep.  353)  on  intoxicating  liquors. 
Cider. 

Cited  in  Re  McTaggart's  Bottler's  License,  32  Pa.  Super    Ct.  566,  on  right  of 
unlicensed  person  to  sell  cider  and  perry,  which  by  fermentation  has  become 
vinous  or  spirituous. 
—  Questions    of    fact. 

Cited  in  State  v.  Parker,  139  N.  C.  588,  51  S.  E.  1028,  holding  whether  "drinks" 
sold  contained  any  alcohol  question  for  jury;   Com.  v.  Beldham,  15  Pa.  Super. 
Ct.  37,  holding  whether  liquor  sold  without  license  was  admixture  of  spirituous, 
vinous,  malt  or  brewed  liquors  in  disguised  form  question  for  jury. 
Prosecutor's    liability    for    costs;    when    question    for    court. 

Cited  in  Com  v.  Kocher,  8  Del.  Co.  Rep.  574,  8  Northampton  Co.  Rep.  341, 
holding  court  may  withdraw  from  jury  matter  of  costs,  whenever  it  appears 
prosecutor  ought  not  to  pay  them. 

2  L.  R.  A.  417,  MONTROSE  PICKLE  CO.  v.  DODSON  &  H.  MFG.  CO.  76  Iowa. 

172,    14   Am.   St.   Rep.   213,   40   N.    W.   705. 
Garnishment. 

Cited  in  Shaver  Wagon  and  Cart  Co.  v.  Halsted,  78  Iowa,  736,  43  N.  W. 
623,  holding  relation  of  creditor  and  debtor  does  not  exist  between  garnisher 
and  assignee  of  defendant's  insurance  policies;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co. 
F.  Cox,  36  Ind  App.  297,  114  Am.  St.  Rep.  377,  73  N.  E.  120,  holding  carrier 
exempted  from  liability  as  garnishee  as  regards  property  in  its  possession  within 


295  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  418 

state  but  in  transit  to  place  without  state;  Buckeye  Pipe  Line  Co.  v.  Fee,  62 
Ohio  St.  562,  78  Am.  St.  Rep.  743,  57  N.  E.  446,  holding  property  outside  state 
not  subject  to  garnishment;  Davis  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  146  Fed. 
412,  holding  instrumentalities  of  interstate  traffic  not  subject  to  execution  or 
attachment  under  state  laws. 

Cited  in  notes  (28  L.R.A  602)  on  liability  of  carriers  to  garnishment  of 
property  in  transit;  (50  Am.  St.  Rep.  466)  on  garnishment  of  common  carriers; 
(69  Am.  St.  Rep.  126)  on  situs  of  debts  for  purposes  of  garnishment  and  of  prop- 
erty in  transit  in  hands  of  carriers. 

Distinguished,  in  effect,  in  German  Bank  v.  American  F.  Ins.  Co.  83  Iowa, 
496,  32  Am.  St.  Rep.  316,  50  N.  W.  53,  holding  courts  of  another  state  may  ac- 
quire jurisdiction  in  garnishment  of  debt  owing  by  nonresident. 

2   L.   R.   A.   418,   MINNESOTA   LOAN   &   T.   CO.   v.   BEEBE,   40  Minn.   7,   41 
N.  W.  232. 

Followed  without  special  discussion  in  Northern  Trust  Co.  v.  Jackson,  60 
Minn.  116,  61  N.  W.  908. 

Power    of    legislature    to    determine    security   to   be   required    of    corpora- 
tions acting1  as   trustees. 

Cited  in  Roane  Iron  Co.  v.  Wisconsin  Trust  Co.  99  Wis.  275,  67  Am.  St.  Rep. 
856,  74  N.  W.  818,  holding  question  of  security  required  is  one  of  legislative 
policy;  Re  Kilborn,  5  Cal.  App.  164,  89  Pac.  985,  holding  it  is  for  the  legislature 
to  say  what  the  security  from  the  trust  company  shall  be,  and  its  kind,  charac- 
ter and  extent. 
Corporation  as  guardian,  trustee,  etc.;  constitutionality  of  act. 

Cited  in  State  ex  rel.  Higby  v.  Higby  Co.  130  Iowa,  71,  114  Am.  St.  Rep.  409, 
106  X.  W.  382,  holding,  at  common  law,  a  corporation  could  not  hold  land  or 
other  property  as  trustee. 

Cited  in  note  (48  L.  R.  A.  588)  on  granting  special  or  exclusive  privileges 
to  surety  and  trust  companies. 

Distinguished  in  Continental  Trust  Co.  v.  Peterson,  76  Neb.  415,  107  N.  W. 
786,  holding  a  corporation  cannot  act  as  an  administrator  under  the  laws  of 
Nebraska. 
Constitutional  requirement  that  subject  of  act  be  expressed  in  title. 

Cited  in  Ek  v.  St.  Paul  Permanent  Loan  Co.  84  Minn.  249,  87  N.  W.  844, 
Tiolding  such  provision  to  be  construed  liberally,  with  reference  to  purpose  in- 
tended; Winters  v.  Duluth,  82  Minn.  132,  84  N.  W.  788,  holding  act  consti- 
tutional if  subjects  embraced  therein  are  naturally  connected  with  subject 
expressed  in  title;  State  ex  rel.  Olsen  v.  Board  of  Control,  85  Minn.  174,  88 
X.  W.  533,  and  Allen  v.  Pioneer  Press  Co.  40  Minn.  119,  3  L.  R.  A.  533,  12  Am. 
St.  Rep.  707,  41  N.  W.  936,  holding  provisions  of  act,  germane  to  subject  ex- 
pressed and  proper  to  accomplishment  of  purpose  indicated  in  title,  constitu- 
tional; State  ex  rel.  Olsen  v.  Board  of  Control,  85  Minn.  174,  88  N.  W.  533. 
holding  the  provision  of  the  constitution  that  "no  law  shall  embrace  more  than 
one  subject  which  shall  be  expressed  in  its  title"  is  to  be  liberally  construed. 

Cited  in  note    (2  L.  R.  A.  789)    on  title  of  statute  must  fairly  suggest  sub- 
jects dealt  with  in  act. 
Probate-court  proceedings  not  collaterally  assailable. 

Cited  in  Lyon  v.  Gleason,  40  Minn,  435,  42  N.  W.  286.  holding  probate  of  will 
conclusive  evidence  in  collateral  action  of  testator's  death  and  of  devise;  Den- 
nis v.  Bint,  122  Cal.  42.  68  Am.  St.  Rep.  17,  54  Pac.  378,  holding  letters  of  ad- 
ministration conclusive  in  collateral  action  as  to  qualification  and  authority  of 


2  L.R.A.  418]  L.  R.  A.  CASES  AS  AUTHORITIES.  296 

administrator;   Wallace  v.  Tinney,  145  Iowa,  485,  139  Am.  St.  Rep.  448,  122  N. 
W.  936,  holding  that  appointment  of  guardian  of  property  of  nonresident  lunatic 
cannot  be  collaterally  attacked. 
Necessity  of  guardian's  bond. 

Cited  in  note    (33  L.  R.  A.   765)    on  necessity  of  bond  by  domestic  guardian 
appointed  by  court  to  make  acts  valid. 
Effect   of   inquisition  as   to   insanity. 

Cited  in  note   (19  L.  R.  A.  493)   on  effect  of  inquisition  to  establish  insanity. 

2   L.   R.   A.   420,   ROCKHOLD  v.   CANTON   MASONIC   MUT.   BENEV.   ASSO. 

(111.)    19  N.  E.  710. 
Ultra  vires  acts  of  corporations. 

Cited  in  Corey  v.  Sherman  (Iowa)  32  L.  R.  A.  512,  60  N.  W.  232,  holding  in- 
surance contract  not  within  terms  of  articles  of  incorporation  of  benefit  as- 
sociation, void;  Parke  v.  Welch,  33  111.  App.  194,  holding  that  person  outside 
any  class  named  as  beneficiary  in  benefit  certificate  is  not  defeated  by  doctrine 
of  ultra  vires. 

Cited  in  notes    (6   L.  R.  A.   290)    on  corporate   power   to   contract;    doctrine 
of  ultra  vires;    (12  L.  R.  A.   168)    on  estoppel  of  corporation  to  deny  liability 
on  its  contracts. 
Mutual  benefit  associations. 

Cited  in  Clark  v.  Schromeyer,  23  Ind.  App.  567,  55  N.  E.  785,  holding  bene- 
fit certificate,  unilateral  contract  of  insurance,  terminable  at  option  of  holder. 

Cited  in  notes  (4  L.  R.  A.  382)  on  benefit  association;  enlarged  powers  con- 
ferred by  statute;  (7  L.  R.  A.  189)  on  transfer  of  mutual  benefit  certificates; 
(38  L.  R.  A.  49,  50)  as  to  whether  a  benefit  association  is  an  insurance  company, 
under  statutes  exempting  benevolent  societies. 

2  L.  R.  A.  422,  ATCHISON,  T.  &  S.  F.  R.  CO.  v.  SCHNEIDER,   127   111.   144, 

20  N.  E.  41. 
Jurisdiction    of   appeal. 

Cited  in  Metropolitan  West  Side  Elev.  R.  Co.  v.  Siegel,  161  111.  644,  44  N.  E. 
276,  holding  not  necessary  that  freehold  be  involved  to  give  supreme  court 
jurisdiction  of  appeal. 

Cited  in  note  (15  Am.  St.  Rep.  780)  on  review  of  evidence  by  appellate  court. 
Damages  in  eminent  domain. 

Cited  in  Blincoe  v.  Choctaw,  O.  &  W.  R.  Co.  16  Okla.  298,  4  L.R.A.  (N.S.)  895, 
83  Pac.  903,  8  A.  &  E.  Ann.  Cas.  689,  holding  recovery  may  be  had  in  condem- 
nation proceedings  for  injury  to  personal  property  by  reason  of  condemnation 
of  real  estate. 

Cited  in  notes  (8  L.  R.  A.  124)  on  measure  of  damages  on  condemnation  for 
public  use;  (51  L.  R.  A.  330)  on  damages  in  eminent  domain  cases  as  affected 
by  loss  of  profits  from  suspension  of  business  while  moving;  (4  L.R.A. (N.S.) 
890)  on  injury  to,  or  expense  of  removing  personalty,  as  element  of  damage  for 
taking  real  estate;  (13  Am.  St.  Rep.  242)  on  damages  for  property  taken  under 
power  of  eminent  domain;  (22  Am.  St.  Rep.  51)  on  evidence  of  damages  in 
eminent  domain. 

Distinguished  in  Braun  v.  Metropolitan  West  Side  Elev.  R.  Co.   166  111.  438, 
46  N.  E.  974,  holding  only  in  exceptional  cases  cost  of  removal  of  business  an 
element  of  damage. 
Right  to  possession  in  eminent  domain  on  giving  security. 

Cited   in   Davis   v.   Northwestern   Elev.   R.   Co.    170   111.   605,   48   N.   E.    1058, 


297  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  425 

holding  petitioner  may,  upon  filing  bond,  enter  into  possession  of  land  sought 
to  be  condemned  pending  appeal;  Johnson  v.  Metropolitan  West  Side  Elev. 
R.  Co.  160  111.  479,  45  N.  E.  680,  holding  where  judgment  for  damages  has  been 
affirmed,  court  will  not  reverse  decree  dissolving  injunction  against  possession 
pending  appeal;  Ex  parte  Reynolds,  52  Ark.  338,  holding  act  authorizing  entry 
upon  deposit  of  security  fixed  by  court  pending  condemnation  proceedings  not 
in  conflict  with  constitutional  provision  that  no  property  be  appropriated  un- 
til compenastion  ascertained  by  jury;  Caldwell  v.  Highway  Comrs.  249  111.  376, 
94  X.  E.  490,  holding  that  highway  commissioners  cannot  open  road  until  com- 
pensation is  paid  to  landowners;  Prairie  du  Rocher  v.  Schoening-Koenigsmark 
Mill.  Co.  251  111.  343,  96  N.  E.  249,  holding  that  petitioner,  if  appeal  is  taken 
by  either  party,  may  enter  on  property,  on  giving  required  bond  without  paying 
or  depositing  compensation  ascertained. 
Personal  view  as  basis  of  verdict. 

Cited  in  Peoria  Gaslight  &  Coke  Co.  v.  Peoria  Terminal  R.  Co.  146  111.  383, 
21  L.  R.  A.  377,  34  N.  E.  550,  holding  jury  in  condemnation  procedings  cannot 
base  estimate  solely  upon  view  of  premises,  disregarding  testimony;  Chicago 
v.  Spoor,  91  111.  App.  488  (approved  by  dissenting  judge  in  190  111.  366,  60  N.  E. 
540),  holding  that  verdict  supported  by  personal  view  need  not  wholly  har- 
monize with  testimony;  Stockton  v.  Chicago,  136  111.  436,  26  N.  E.  1095;  Met- 
ropolitan West  Side  Elev.  R.  Co.  v.  Johnson,  159  111.  439,  42  N.  E.  871;  Sani- 
tary District  v.  Loughran,  160  111.  365,  43  N.  E.  359,  —  holding  verdict  in 
condemnation  proceedings,  rendered  upon  conflicting  evidence  and  view  of 
premises,  sustainable;  Chicago  &  S.  L.  R.  Co.  v.  Mines,  221  111.  457,  77  N.  E. 
898,  holding  jury  in  condemnation  proceedings  cannot  disregard  evidence  heard 
in  open  court  and  fix  damages  on  their  view  of  premises  alone;  Payson  v.  Milan, 
144  111.  App.  208,  holding  jury  may  not  render  verdict  based  on  view  though 
they  believe  they  have  formed  more  accurate  judgment  therefrom  than  from 
evidence  in  open  court;  Shreveport  v.  Youree,  114  La.  186,  38  So.  135,  3  A.  &  E. 
Ann.  Cas.  300,  on  disregard  by  jury  of  testimony  in  appropriation  case  and  fix- 
ing of  value  according  to  their  personal  opinions  and  information;  Zanesville, 
M.  &  P.  R.  Co.  v.  Bolen,  76  Ohio  St.  388,  11  L.R.A.(N.S.)  1111,  81  N.  E.  681, 
10  A.  &  E.  Ann.  Cas.  658,  holding  impressions  made  on  minds  of  jurors  by  view 
of  premises  is  not  evidence  in  cause,  hence  reviewing  court  may  pass  upon 
weight  of  evidence,  though  bill  of  exceptions  only  contains  evidence  given  at 
trial. 

Cited  in  note  (42  L.  R.  A.  389,  390)  on  nature  and  effect  of  view  by  jury; 
theory  that  view  must  be  supported  by  evidence. 

2  L.  R.  A.  425,  LOCKWOOD  v.  LOCKWOOD,  51  Hun,  337,  3  N.  Y.  Supp.  887. 
Record  of  exemplified  copy  of  probate  of  foreigrn  will. 

Cited  in  Meiggs  v.  Hoagland,  68  App.  Div.  187,  74  N.  Y.  Supp  234,  holding 
record  of  exemplified  copy  of  probate  of  foreign  will  only  creates  rebuttable 
presumption  of  due  execution;  Re  Nash,  37  Misc.  708,  76  N.  Y.  Supp.  453, 
holding  foreign  will  and  copy  of  probate  proceedings,  not  conformed  to  state 
law,  not  entitled  to  be  recorded;  Meiggs  v.  Hoagland,  41  Misc.  7,  83  N.  Y.  Supp. 
603,  holding  record  of  foreign  will,  not  showing  attestation  in  statutory  man- 
ner, does  not  show  title  to  land  in  devisee;  Re  Hagar,  48  Misc.  41,  96  N.  Y. 
Supp.  96,  holding  execution  of  foreign  will  in  conformity  with  state  laws  must 
be  established  in  manner  pointed  out  by  state  law  in  order  to  entitle  it  to 
record. 

Cited  in  notes    (48  L.  R.   A.   133)    on  effect  in  various  states  of  probate  of 


2  L.R.A.  425]  L.  R.  A.  CASES  AS  AUTHORITIES.  298 

will    in    another    state;     (48    L.    R.    A.    133)    on    effect   of    probate    in    another 
state  of  will  of  real  estate. 

Distinguished  in  Bradley  v.  Krydop,  128  App.  Div.  202,  112  N.  Y.  Supp.  609, 
holding  record  of  copy  of  record  of  foreign  will   and  proofs  thereof  in  foreign 
court  is  presumptive  evidence  of  such  will  and  execution  thereof  if  it  appears 
will  was  executed  in  conformity  with  state  laws,  though  not  so  probated. 
Conflict  of  laws  as  to   wills. 

Cited  in  note  (2  L.R.A.  ( N.S. )  426)  on  conflict  of  laws  as  to  wills. 

2  L.  R.  A.  426,  BARNARD  v.  KNOX  COUNTY,  37  Fed.  563. 
Indebtedness  exceeding:  constitutional  limit. 

Cited  in  Rauch  v.  Chapman,  16  Wash.  579,  36  L.  R.  A.  411,  58  Am.  St.  Rep. 
52,  48  Pae.  253,  holding  county  warrants  issued  to  meet  indebtedness  imposed 
by  Constitution  or  legislature  in  connection  with  maintenance  of  county 
government  valid,  though  exceeding  debt  limit;  Hopkins  County  v.  St.  Bernard 
Coal  Co.  114  Ky.  158,  70  S.  W.  289,  holding  words  of  constitution  "no  county 
shall  be  authorized  or  permitted  to  become  indebted"  do  not  refer  to  necessary 
expenses  of  governmental  functions  of  county  but  to  optional  obligations. 

Cited  in  footnotes  to  Barnard  v.  Knox  County,  13  L.  R.  A.  244,  which  holds 
limitation  on  county  indebtedness  applicable  to  books  and  stationery  for 
county  clerk's  office;  Jay  County  v.  Taylor,  7  L.  R.  A.  160,  which  holds  em- 
ployment of  legal  adviser  for  term  extending  beyond  terms  of  county  commission- 
ers employing  him  invalid. 

Cited  in  notes  (23  L.  R.  A.  403,  404)  on  what  constitutes  "indebtedness" 
within  constitutional  provision;  (37  L.R.A. (N.S.)  1079,  1088,  1090)  on  creation 
of  indebtedness  within  the  meaning  of  debt  limit  provisions;  (44  Am.  St.  Rep. 
235 )  on  what  is  municipal  indebtedness  within  prohibition  against. 
.  Disapproved  in  Barnard  v.  Knox  County,  105  Mo.  387,  13  L.  R.  A.  246,  16 
S.  W.  917,  holding  county  warrant  issued  for  indebtedness  in  excess  of  con- 
stitutional limit  void,  though  incurred  for  necessary  stationery  and  supplies. 

2  L.  R.  A.  428,  NATIONAL  BANK  v.  DORSET  MARBLE  CO.  61  Vt.   106.   17 

Atl.   42. 
Indorsement    in    blank Before    issne. 

Cited  in  Ballard  v.  Burton,  64  Vt.  396,  16  L.  R.  A.  667,  24  Atl.  769,  holding 
bank  director  indorsing  in  blank  new  certificate  of  deposit  issued  by  bank  on  its 
request  for  time  liable  as  joint  maker;  Young  v.  Sehon,  53  W.  Va.  136,  62  L. 
R.  A.  505,  97  Am.  St.  Rep.  970,  44  S.  E.  136,  holding  person  making  loan  on 
non-negotiable  note,  indorsed  by  promisee  and  another,  may  treat  them  as 
comakers  or  guarantors;  Salisbury  v.  First  Nat.  Bank,  37  Neb.  876,  40  Am.  St. 
Rep.  527,  56  N.  W.  727,  holding  notice  of  nonpayment  at  maiurity  not  nec- 
essary to  hold  indorsers  in  blank  before  issue. 
After  issue. 

Cited  in  Bowler  v.  Braun,  63  Minn.  35,  56  Am.  St.  Rep.  449.  65  N.  W.  124, 
holding  parol  evidence  inadmissible,  as  against  subsequent  holder,  to  vary  lia- 
bility as  second  indorser  of  party  signing  in  blank  below  payee;  Lyndon  Sav. 
Bank  v.  International  Co.  75  Vt.  232,  54  Atl.  191,  holding  indorser  of  note  in 
blank,  on  back,  after  execution,  assumes,  prima  facie,  obligation  of  a  maker ; 
Lyndon  Sav.  Bank  v.  International  Co.  78  Vt.  178,  112  Am.  St.  Rep.  900,  62  Atl. 
50.  holding  persons  who  signed  overdue  note  in  blank  were  joint  makers 
Negotiability. 

Cited  in  footnote  to  Witty  v.  Michigan  Mut.  L.  Ins.  Co.  8  L.  R.  A.  365,  which 
holds  note  negotiable  although  blank  in  body  as  to  amount  and  place  of  payment. 


299  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  434 

2  L.  R.  A.  429,  RANKIN'S  APPEAL,  1  Monaghan    (Pa.)   308,  16  Atl.  82. 
Right  of  tenant  for  life  to  income  from  mine*. 

Cited  in  Koen  v.  Bartlett,  41  W.  V  a.  567,  31  L.  R.  A.  130,  56  Am.  St. 
Rep.  884,  23  S.  E.  664,  holding  life  tenant  entitled  to  product  of  oil  or 
gas  wells  open,  or  lawfully  opened,  during  tenancy. 

Cited  in  note  (36  L.R.A.(N.S.)  1102,  1103)   on  mineral  rights  of  life  tenant. 
Cnrtesy. 

Cited  in  notes  (7  L.R.A.  694)  on  entry  to  establish  title  as  tenant  by  curtesy; 
(112  Am.  St.  Rep.  594)  on  tenancy  by  the  curtesy;    (128  Am.  St.  Rep.  476,  485 } 
on  nature  and  existence  of  estates  of  tenancy  by  the  curtesy. 
Rights   incidental   to  grant   of  mine. 

Cited  in  Ingle  v.  Bottoms,  160  Ind.  78,  66  N.  E.  160,  sustaining  right  of 
lessee  of  coal  mine  to  construct  railroad  switch  thereto. 

2  L.  R.  A.  434,  BAKER  v.  STEWART,  40  Kan.  442,  10  Am.  St.  Rep.  213,  19 

Pac.   904. 
Tenancy  by  entirety. 

Approved  in  Shinn  v.  Shinn,  42  Kan.  7,  4  L.  R.  A.  226,  21  Pac.  813,  holding 
judgment  for  alimony  not  encumbrance  upon  land  held  by  parties  thereto  in  en- 
tirety. 

Cited  in  Simons  v.  McLain,  51  Kan.  160,  32  Pac.  919,  holding  estates  by 
joint  tenancy,  with  accompanying  right  of  survivorship,  to  exist  in  Kansas  prior 
to  chap.  203,  Laws  1891,  abolishing  survivorship;  Xoble  v.  Teeble,  58  Kan.  400, 
49  Pac.  598,  holding  prior  to  1891,  devise  to  daughter-in-law  "and  her  chil- 
dren," created  joint  tenancy;  Boyer  v.  Sims,  61  Kan.  596,  60  Pac.  309,  holding 
surviving  trustee  in  joint  tenancy  entitled  to  maintain  ejectment  in  his  own 
name;  Wilson  v.  Johnson,  4  Kan.  App.  751,  46  Pac.  833,  holding  consent  of 
husband  to  devise  by  wife  of  land  held  "as  tenant  in  common"  does  not 
operate  to  create  tenancy  in  common  in  land  held  in  entirety;  Reynolds  v. 
Strong,  82  Hun,  203.  31  N.  Y.  Supp.  329,  holding  widow  entitled  to  whole  estate 
as  tenant  by  the  entirety  of  property  conveyed  to  husband  and  wife;  Re  Lewis, 
S5  Mich.  342,  24  Am.  St.  Rep.  94,  48  N.  W.  580,  holding  tenancy  by  entirety 
unarl'octed  by  divorce;  Helvie  v.  Hoover,  11  Okla.  694,  69  Pac.  958,  holding  hus- 
band and  wife  tenants  in  common  of  real  estate  conveyed  to  them;  McNeeley  v. 
South  Penn  Oil.  Co.  52  W.  Va.  627,  62  L.  R.  A.  569,  44  S.  E.  508,  holding 
conveyance  to  husband  and  wife  does  not  create  estate  by  entirety,  under  stat- 
utes abolishing  survivorship  in  such  estates,  and  relating  to  married  women's 
separate  property. 

Cited  in  footnotes  to  Mittel  v.  Karl,  8  L.  R.  A.  655,  which  holds  life  estate 
with  fee  to  survivor  passes  by  deed  to  husband  and  wife,  and  to  survivor  in  his 
own  right;  Shinn  v.  Shinn,  4  L.  R.  A.  224,  which  holds  judgment  for  alimony 
encumbrance  on  land  held  by  entirety;  Donahue  v.  Hubbard,  14  L.  R.  A.  123, 
which  holds  husband's  title  as  tenant  by  entirety  may  be  conveyed  to  wife 
through  third  person;  Thornburg  v.  Wiggins,  22  L.  R.  A.  42,  which  holds- 
tenancy  by  entirety  not  created  by  conveyance  to  husband  and  wife  "in  joint 
tenancy;"  Re  Albrecht,  18  L.  R.  A.  329,  which  denies  tenancy  by  entirety  in 
bond  and  mortgage  to  husband  and  wife. 

Cited  m  notes  (12  L.  R.  A.  514)  on  definition  of  tenancy  by  entirety;  (13 
L.  R.  A.  326)  on  attitude  of  courts  towards  estates  by  entirety;  (30  L.  R,  A. 
314)  on  where  and  to  what  extent  estate  exists;  (30  L.  R.  A.  324)  on  crea- 
tion of  estate  by  limitation  to  husband  and  wife  as  tenants  in  common;  (30  L. 
R.  A.  330)  on  disposition  or  encumbrance  of  entirety  property. 


2  L.R.A.  434]  L.  R.  A.  CASES  AS  AUTHORITIES.  300 

Effect  of  statutes  on  estate  by  entirety. 

Cited  in  Howard  v.  Schneider,  10  Kan.  App.  139,  62  Pac.  435,  holding  stat- 
ute abolishing  "survivorship  in  joint  tenancy"  ineffectual  as  to  estates  by  en- 
tirety; Stewart  v.  Thomas,  64  Kan.  514,  68  Pac.  70,  holding  statute  abolishing 
"survivorship  in  joint  tenancy"  applies  to  tenancy  by  entirety,  though  not 
named  in  title  of  act;  Stilphen  v.  Stilphen,  65  N.  H.  139,  23  Atl.  79,  holding 
statute  enabling  married  woman  to  hold  property  as  if  single  abolished  only 
after-acquired  estates  by  entirety;  Holmes  v.  Holmes,  70  Kan.  892,  79  Pac.  163, 
holding  title  of  surviving  husband  not  affected  by  act  abolishing  survivorship 
passed  before  death  of  wife;  Frost  v.  Frost,  200  Mo.  481,  118  Am.  St.  Rep.  689, 
98  S.  W.  527,  on  survival  of  estates  in  entirety  as  at  common  law  in  spite  of 
legislation  tending  to  destroy  unity  of  husband  and  wife. 

Cited  in  notes  (8  L.  R.  A.  407)  on  construction  of  Indiana  Code,  §  5119,  in 
respect  to  married  woman's  rights;  (30  L.  R.  A.  316)  on  construction  of  stat- 
utes as  to  existence  and  extent  of  estate. 

Disapproved  in  Green  v.  Cannady,  77  S.  C.  198,  57  S.  E.  832,  holding  married 
woman  may  become  tenant  in  common  with  husband  in  property  upon  grant  to 
both,  since  separate  estate  legislation  destroys  unity  of  husband  and  wife  as  to 
property  rights. 
Rights  of  married  women. 

Cited  in  Harrington  v.  Lowe,  73  Kan.  21,  4  L.R.A.  (N.S.)  557,  84  Pac.  570, 
holding  that  in  Kansas  coverture  affords  no  ground  for  declaring  married  wom- 
an's contract  invalid,  though  she  possesses  no  separate  estate  or  separate  trade 
or  business. 

2   L.   R.   A.   444,   UNITED   STATES   v.   TOZER,   37    Fed.   635. 

Charge  to  jury  in  39  Fed.  369. 

Appeal  from  judgment  of  conviction  in  4  Inters.  Com.  Rep.  245,  52  Fed. 
917. 

Discriminations. 

Cited  in  Armour  Packing  Co.  v.  United  States,  14  L.R.A.(N.S.)  413,  82  C.  C. 
A.  135,  153  Fed.  17,  holding  particular  device  by  which  concession  and  trans- 
portation obtained  not  essential  ingredient  of  offense  of  obtaining  concession. 

Cited  in  footnote  to  Fitzgerald  v.  Grand  Trunk  R.  Co.  13  L.  R.  A.  70,  which 
holds  no  vested  right  in  law  existing  when  contract  as  to  interstate  transpor- 
tation made. 

Cited  in  notes   (4  L.  R.  A.  332)   on  justification  of  discrimination  by  carrier; 
(12  L.  R.  A.  436)  on  rates  of  freight  in  long  and  short  hauls. 
Liability   of  employee. 

Cited  in  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.  19  L.  R.  A.  390, 
54  Fed.  736,  holding  executive  of  engineers'  union  while  employee  bound  by 
mandatory  injunction  to  carry  interstate  freight. 

2  L.  R.  A.  447,  BUTTERFIELD  v.  BOSTON,   148  Mass.  544,  20  N.  E.  113. 
Negligence  as  to  gates  and  guards. 

Cited   in   footnote  to   Feeney   v.   Long   Island   R.   Co.   5   L.   R.   A.   544,   which 
holds  railroad  company  liable  for  negligence  of  gateman. 
Municipal  liability  as  to  bridges  and  streets. 

Cited  in  Lincoln  v.  Boston,  148  Mass.  580,  3  L.  R.  A.  258,  12  Am.  St.  Rep. 
601,  20  N.  E.  329,  holding  city  not  liable  for  injuries  resulting  from  firing  of 
cannon  on  Boston  Common  under  license  of  authorities;  Daly  v.  New  Haven, 
69  Conn.  649,  38  Atl.  397,  holding  liability  of  city  for  negligence  in  maintenance 
or  operation  of  bridge  purely  statutory. 


301  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  449 

Cited  in  notes  (9  L.R.A.  208)  on  municipal  liability  for  acts  or  omissions  of 
its  agents;  (19  L.R.A.  (N.S.)  1178)  on  liability  of  municipality  for  negligence 
of  bridge  tender;  (20  Am.  St.  Rep.  868)  on  municipal  liability  for  negligence 
of  officer. 

Distinguished  in  Stephani  v.  Manitowoc,  89  Wis.  471,  62  N.  W.  176,  holding 
city  liable  for  death  resulting  from  unprotected  drawbridge;  Naumburg  v.  Mil- 
waukee, 77  C.  C.  A.  67,  146  Fed.  649,  holding  management  of  bridge  corporate, 
not  governmental,  duty,  and  negligence  of  bridge  tender  negligence  of  city. 
Liability  for  acts  in  performance  of  public  duty. 

Cited  in  Moynihan  v.  Todd,  188  Mass.  305,  108  Am.  St.  Rep.  473,  74  N.  E.  367, 
holding  party  liable  for  injury  by  personal  act  of  misfeasance,  though  in  per- 
formance of  public  duty. 

2  L.  R.  A.  448,  COVENY  v.  MCLAUGHLIN,  148  Mass.  576,  20  N.  E.  165. 
Contingent  remainders  to   "surviving"  or  similarly   described  persona. 

Cited  in  Hills  v.  Barnard,  152  Mass.  72,  9  L.  R.  A.  217,  25  N.  E.  96,  holding 
devise  to  nephews  living  on  son's  death  in  equal  shares,  "the  issue  of  any  de- 
ceased legatee  to  take  parent's  share,"  vested  per  capita  in  nephews  alive  at 
son's  death,  and  in  issue  of  deceased  nephews  by  right  of  representation; 
Bigelow  v.  Clap,  166  Mass.  91,  43  N.  E.  1037,  holding  testamentary  provi- 
sion for  equal  division  among  nephews  and  grandnephews,  "who  may  then  be 
living,"  on  death  of  daughter,  entitles  nephews  and  grandnephews  to  share 
per  capita  alone;  Pulse  v.  Osborn,  30  Ind.  App.  633,  64  N.  E.  59,  construing 
devise  to  surviving  grandchildren  should  first  taker  die  before  them  as  meaning 
those  surviving  first  taker;  Lawrence  v.  Phillips,  186  Mass.  322,  71  N.  E.  541, 
holding  words  "surviving  children"  in  will  referable  to  those  surviving  at  death 
of  one  of  other  children  and  not  to  grandchildren,  where  remainder  in  case  of 
child's  death  without  issue  was  to  surviving  children;  Clarke  v.  Fay,  205  Mass. 
231,  27  L.R.A. (N.S.)  458,  91  N.  E.  328,  holding  in  a  devise  to  "such  child's  lawful 
issue  then  living"  the  words  "then  living"  referred  to  the  death  of  the  child  and 
not  of  the  testator;  Sias  v.  Chase,  207  Mass.  375,  93  N.  E.  802,  holding  that  under 
gift  to  survivors  of  legatees  of  remainder  of  trust  fund,  income  of  which  is  given 
to  widow  for  life,  survivors  are  those  living  at  death  of  widow. 

Cited  in  footnote  to  Allison  v.  Allison,  63  L.R.A.  920,  which  holds  that  devise 
of  remainder  at  death  of  life  tenant  fo  be  divided  among  testator's  heirs  at  law 
refers  to  heirs  living  at  testator's  death. 

Cited  in  notes  (3  L.R.A.  817)  on  contingent  remainders;  (73  Am.  St  Rep.  419) 
on  gifts  to  a  class  such  as  "children"  and  who  are  entitled  to  take;  (25  Eng.  Rul. 
Gas.  725)  on  construction  of  gift  over  to  survivor  or  survivors  of  bequest  to  a 
class. 

Distinguished  in  Ball  v.  Holland,  189  Mass.  373,  1  L.R.A.(N.S.)  1007,  75  N.  E. 
713,  holding  under  whole  will  remainder  vested  at  death  of  testator  in  children 
then  living  where  will  provided  for  disposition  among  surviving  children  of  prop- 
erty possessed  toy  wife  should  she  remain  unmarried  at  her  death  and  she  died 
unmarried. 

2  L.  R.  A.  449,  HAAS  v.  SACKETT,  40  Minn.  53,  41  N.   W.  237. 
Contract   of  indorsement. 

Cited  in  Hathway  v.  Rogers,  112  Iowa,  640.  84  N.  W.  674,  holding  memoran- 
dum, "sold  half  of  this  note  to  R.,"  signed  by  payee  on  back  of  note,  not  an 
indorsement;  Gregg  v.  Groesbeck,  11  Utah,  320,  32  L.  R.  A.  269,  40  Pac.  202, 
holding  oral  evidence  admissible  to  prove  plaintiff's  knowledge  of  agreement 


2  L.R.A.  449]  L.  R.  A.  CASES  AS  AUTHORITIES.  302 

between  payee  and  defendant  for  erasure  of  latter's  name  as  indorser  before 
negotiation. 

Cited  in  note  (14  Am.  St.  Rep   794)  on  indorsers  and  indorsements. 

Conversion  of  negotiable   instrument. 

Cited  in  Nashville  Lumber  Co.  v.  Fourth  Nat.  Bank,  94  Tenn.  381,  27  L.  R. 
A.  522,  45  Am.  St.  Rep.  727,  29  S.  W.  368,  holding  bank  transferring  negoti- 
able paper  to  bona  fide  purchaser  liable  to  party  whose  indorsement  thereon  had 
been  forged  to  its  knowledge. 

Cited   in   footnote  to   Griggs   v.   Day,    18   L.   R.   A.    130,   which   holds   pledgee 
liable  for  only  actual  value  of  notes  converted. 
Measure  of  damages  In  conversion. 

Cited  in  footnote  to  Woods  v.  Nichols,  48  L.  R.  A.  773,  which  holds  meas- 
ure of  recovery  in  trover  by  one  retaining  title  as  security  for  purchase  price 
limited  to  balance  due,  less  depreciation  by  use. 

2  L.  R.  A.  450,  EVANSVILLE  &  T.  H.  R.  CO.  v.  CRIST,  116  Ind.  44G,  9  Am. 

St.  Rep.  865,  19  N.  E.  310. 
Negligence  in  maintaining  railroad  crossings  of  highway  or  over  stream. 

Cited  in  Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Pritchard,  131  Ind.  566, 
31  Am.  St.  Rep.  451,  31  N.  E.  358,  holding  railway  company  responsible  for 
injuries  received  from  jolt  of  wagon  crossing  tracks  15  inches  above  highway: 
Lake  Shore  &  M.  S.  R.  Co.  v.  Mclntosh,  140  Ind.  278,  38  N.  E.  476,  holding 
railroad  company  liable  for  injury  caused  by  washed-out  crossing,  negligently 
left  in  such  condition;  Cincinnati,  H.  &  I.  R.  Co.  v.  Claire,  6  Ind.  App.  394. 

33  N.  E.  918,  holding  railway  company  liable  for  injury  due  to  failure  to  guard 
and   light  raised   footway;    Seybold  v.   Terre   Haute   &   I.   R.   Co.    18   Ind.  App. 
379,  46  N.  E.   1054,  holding  railway  company  liable  for  injury  resulting  from 
lack  of  guards  beside  highway  necessarily  raised  to  cross  tracks;   Terre  Haute 
&  I.  R.  Co.  v.  Clem,  123  Ind.  16,  7  L.  R.  A.  588,  18  Am.  St.  Rep.  303,  23  N.  E. 
965,    holding   no    presumption    of    negligent    construction    or    maintenance    from 
mere  fact  of  injury  at  crossing;   Moundsville  v.  Ohio  River  R.   Co.  37   W.  Va. 
105,  20  L.  R.  A.   170,   16  S.  E.  514,  and  State  ex  rel.  Muncie  v.  Lake  Erie  & 
W.  R.  Co.  83  Fed.  286,  holding  mandamus  lies  to  compel  railroad  to  maintain 
street  crossing  in  suitable  condition;   Chicago,  I.  &  L.  R.  Co.  v.  State,  158  Ind. 
192,   63   N.   E.   224,   holding   railroad   company  may   be   compelled   to   construct 
underground   crossing,   where   surface   crossing   is   dangerous;    Chicago   &   S.   E. 
R.  Co,  v.  State,  159  Ind.  240,  64  N.  E.  860,  holding  city  may  compel  railroad  com- 
pany to  lower  track  at  street  crossing  to  conform  to  street  grade;  Wabash  R.  Co. 
v.  De  Hart,  32  Ind.  App.  70,  65  N.  E.  192,  holding  actionable  negligence  on  part 
of  railway  company  shown  by  complaint  for  injury  at  crossing  without  aver- 
ment of  notice  to  company  of  condition  thereof;  Evansville  &  I.  R.  Co.  v.  Allen, 

34  Ind.  App.  642,  73  N.  E.  630,  holding  failure  to  maintain  guards  to  prevent 
persons  falling  off  embankment  actionable  negligence  in  respect  to  person  sus- 
taining injury  without  fault;  Graham  v.  Chicago,  I.  &  L.  R   Co.  39  Ind.  App.  297, 
77  N.  E.  57,  holding  duty  of  railroad  company  not  to  impair  usefulness  ol  water- 
course across  which  it  constructs  road  is  continuous,  and  failure  to  perform  it 
gives  right  of  action  to  one  injured  thereby,  and  notice  to  grantee  railroad  com- 
pany is  not  essential  to  its  liability;   Kelsay  v.  Chicago,  C.  &  L.  R.  Co.  41  Ind. 
App.  131,  81  N.  E.  522,  applying  same  rules  in  action  for  damages  against  rail- 
road company  for  destroying  public  drain. 

Negligence,   concurring   acts. 

Cited  in  Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Cooper,  120  Ind.  472,  6  L.  R.  A. 


303  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  450 

245,  16  Am.  St.  Rep.  334,  22  N.  E.  340,  holding  company  liable  for  death  caused 
by   sudden   starting  of   one   train   throwing   off   plaintiff,   and   negligent   failure 
of   second   train   to   stop   before   reaching   place   of   fall. 
General  allegation  of  negligence  sufficient. 

Cited  in  Pennsylvania  Co.  v.  Horton,  132  Ind.  192,  31  N.  E.  45,  holding  state- 
ment of  particulars  of  freedom  from  contributory  negligence  necessary  onlv  on 
demand  of  defendant;  Lake  Shore  &  M.  S.  R.  Co.  v.  Kurtz,  10  Ind.  App.  63,  35 
N.  E.  201,  holding  any  facts  to  show  negligence  admissible  under  general  aver- 
ment; Solberg  v.  Schlosser,  20  N.  D.  312,  30  L.R.A. (N.S.)  1114,  127  X.  W.  91, 
holding  that  complaint  alleges  cause  of  action  for  negligence  in  leaving  piles  of 
dirt  on  highway. 
Specific  averments  control  general  averments. 

Cited  in  Queen  Ins.  Co.  v.  Hudnut  Co.  8  Ind.  App.  27,  35  N.  E.  397,  holding 
answer   denying  loss  by  tornado  controlled  by  specific  allegation  that   loss   re- 
sulted from  shock  of  boat  blown  by  wind. 
Contributory  negligence,  knowledge  of  defect. 

Cited  in  Poseyville  v.  Lewis,  126  Ind.  82,  25  N.  E.  593,  holding  knowledge  of 
defective  condition  of  sidewalk  no  bar  to  recovery;  Hoggatt  v.  Evansville  &  T. 
H.  R.  Co.  3  Ind.  App.  443,  29  N.  E.  941,  holding  driver  of  team  on  highway 
parallel  to  railway  not  guilty  of  contributory  negligence,  though  aware  or  horses' 
skittishness;  Evansville  &  T.  H.  R.  Co.  v.  Athon,  6  Ind.  App.  298,  51  Am.  St. 
Rep.  303,  33  N.  E.  469,  holding  plaintiff  not  guilty  of  contributory  negligence 
in  alighting  under  directions  of  brakeman  after  signal  rope  pulled;  Sledge  v. 
Gayoso  Hotel  Co.  43  Fed.  464,  holding  it  not  negligence  per  se  to  enter  elevator 
in  conductor's  absence;  Morrison  v.  Shelby  County,  116  Ind.  433,  19  X.  E.  316. 
holding  plaintiff  guilty  of  contributory  negligence  in  driving  loaded  wagon  upon 
defective  bridge  when  long  aware  of  condition,  though  used  by  public;  Newcastle 
v.  Grubbs,  171  Ind.  498,  86  N.  E.  757,  holding  plaintiff  not  guilty  of  contributory 
negligence  as  matter  of  law,  though  he  had  knowledge  of  defective  condition  of 
sidewalk;  Chicago  &  E.  I.  R.  Co.  v.  Gallion,  39  Ind.  App.  610,  80  N.  E.  547,  holding 
driving  over  crossing  by  person  having  knowledge  of  defect  therein  not  necessarily 
contributory  negligence. 
Averment  of  freedom  from. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Sandford,  117  Ind.  266,  19  X.  E. 
770,  holding  general  averment  that  plaintiff  without  fault  sufficient;  Pittsburgh, 
C.  &  St.  L.  R.  Co.  v.  Bennett,  9  Ind.  App.  95,  35  X.  E.  1033;  Citizens'  Street 
R.  Co.  v.  Spahr,  7  Ind.  App.  26,  33  X.  E.  446;  Louisville,  X.  A.  &  C.  R.  Co.  v. 
Hobbs,  3  Ind.  App.  447,  29  X.  E.  934;  Evansville  &  T.  H.  R.  Co.  v.  Krapf,  143 
Ind.  652,  36  X.  E.  901;  Pennsylvania  Co.  v.  O'Shaughnessy,  122  Ind.  590,  23  X. 
E.  675;  Elkhart  v.  Witman,  122  Ind.  540,  23  X.  E.  796,  —  holding  general  aver- 
ment that  plaintiff  was  without  fault  sufficient,  unless  contradicted  by  facts 
specifically  stated;  Romona  Oolitic  Stone  Co.  v.  Tate,  12  Ind.  App.  62,  37  X.  E. 
1065,  holding  general  allegation  of  freedom  from  fault  overcome  by  facts 
pleaded  showing  contributory  negligence. 
Opinion  evidence. 

Cited  in  Louisville,  X.  A.  &  C.  R.  Co.  v.  Hendricks,  128  Ind.  463,  28  X.  E. 
58,  holding  opinion  of  nonexpert  witness  as  to  rate  of  train's  speed  competent; 
Kansas  City.  M.  &  B.  R.  Co.  v.  Crocker,  95  Ala.  423,  11  So.  262,  holding  plain- 
tiff's testimony  as  to  relative  speed  of  car  and  man  running  competent,  though 
indefinite;  Budd  v.  Salt  Lake  City  R.  Co.  23  Utah,  520,  65  Pac.  480,  holding 
opinion  of  physician  as  to  percentage  of  patients  recovering  from  similar  in 
juries  competent;  Alabama  G.  S.  R.  Co.  v.  Hall.  105  Ala.  606,  17  So.  176,  hold- 


2  L.R.A.  450]  L.  R.  A.  CASES  AS  AUTHORITIES.  304 

ing  nonexpert  character  of  opinion  testimony  of  speed  of  engine  goes  to  weight, 
not  competency,  of  evidence. 

Cited  in  notes   (4  LR.A.  555)   on  expert  opinions;    (34  L.R.A.(N.S.)   797)   on 
evidence  as  to  speed  of  trains  and  hand  cars. 
Submission    of   special    instructions. 

Cited  in  Shelby  County  v.  Blair,  8  Ind  App.  588,  36  N.  E.  216,  and  Rans- 
bottom  v.  State,  144  Ind.  255,  43  N.  E.  218,  holding  special  instructions  must  be 
submitted  to  court  before  argument  to  jury  commenced;  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  v.  Ward,  147  Ind.  257,  45  N.  E.  325,  holding  failure  to  give  requested 
instruction  not  considered  on  appeal,  unless  record  shows  request  therefor  at 
close  of  evidence;  Duckwall  v.  Williams,  29  Ind.  App.  654,  63  N.  E.  232,  hold- 
ing error  cannot  be  predicated  upon  refusal  of  instruction  requested  during 
closing  argument. 

2  L.  R,  A.  455,  VANOLINDER  v.  CARPENTER,  127  111.  42,   11  Am.  St.  Rep. 

92,   19  N.  E.  868. 
Rule  in   Shelley's  Case. 

Cited  in  Hageman  v.  Hageman,  129  111.  167,  21  N.  E.  814,  holding  fee  vested 
in  sons  under  devise  to  them,  with  restriction  against  sale  or  mortgage  during 
lives,  and  gift  to  "their  heirs  after  them;"  Silva  v.  Hopkinson,  158  111.  388,  41 
N.  E.  1013,  holding  devise  to  daughters  "and  their  lawful  heirs,  but  in  the 
event  of  their  death  without  lawful  issue"  then  over,  creates  unconditonal  fee 
simple  in  daughters;  Wolfer  v.  Hemmer,  144  111.  559,  33  N.  E.  751,  holding  de- 
vise to  wife,  her  heirs  and  assigns,  carries  fee  in  spite  of  subsequent  clause  pro- 
viding for  distribution  among  children  of  all  realty  undisposed  of  by  wife  at 
her  death;  Ewing  v.  Barnes,  156  111.  68,  40  N.  E.  325,  holding  that  fee  created 
by  devise  to  party  and  his  heirs  not  affected  by  subsequent  clause  in  will  pro- 
viding for  disposition  of  property  in  case  of  death  without  heirs  of  his  body; 
Palmer  v.  Cook,  159  111.  303,  50  Am.  St.  Rep.  165,  42  N.  E.  796,  holding  grant 
to  daughters  in  fee  creates  tenancy  in  common,  unaffected  by  subsequent  clause 
in  deed  providing  for  reversion  of  interest  of  one  first  dying  without  heirs,  to 
survivor;  Vangieson  v.  Henderson,  150  111.  121,  36  N.  E.  974,  holding  fee  in 
daughter,  under  devise  to  wife  for  life,  on  her  death  to  daughter  during  nat- 
ural life,  remainder  to  her  heirs;  Fowler  v.  Black,  136  111.  375,  11  L.  R.  A.  673, 
footnote  p.  671,  26  N.  E.  596,  holding  deed  of  vested  remainder  to  grantee  for 
life,  on  his  death  to  his  heirs  in  fee,  vested  fee  in  grantee;  Deemer  v.  Kessinger, 
206  111.  63,  69  N.  E.  28,  holding  devise  to  son,  and  at  his  death  to  his  lawful 
heirs,  vests  fee  in  son;  Grimes  v.  Shirk,  169  Pa.  76,  32  Atl.  13,  holding  devisee 
of  estate  for  natural  life,  remainder  to  lawful  issue,  if  any;  if  not  to  testator's 
heirs,  takes  fee;  Rissman  v.  Wierth,  220  111.  186,  110  Am.  St.  Rep.  243,  77  X.  E. 
108,  holding  wife  took  fee  by  clause  giving  estate  to  wife  and  her  heirs  though 
testator  sought  to  limit  her  estate  to  one  for  life  by  subsequent  provisions;  Peo- 
ple ex  rel.  Reid  v.  Zellar,  225  111.  410,  79  N.  E.  697,  holding  devise  of  use  of  realty 
during  life,  after  death  of  person  named,  who  died  before  testator,  and  at  de- 
visee's death  to  his  legal  heirs,  carried  fee  simple  to  devisee;  Miller  v.  Mowers, 
227  111.  399,  81  N.  E.  420,  holding  rule  in  Shelley's  Case  inapplicable  where  inten- 
tion of  parties  to  deed  was  to  convey  life  estate  only;  Ward  v.  Butler,  239  111. 
467,  29  L.RA.(N.S.)  942,  88  N.  E.  189,  holding  devisee  took  fee  to  one  half  of 
farm  by  devise  of  use  of  whole  for  life,  remainder  one  half  to  devisee's  heirs  and 
one  half  to  another  and  his  heirs;  Lord  v.  Comstock,  240  111.  499,  88  X.  E.  1012, 
holding  rule  in  Shelley's  Case  controls  though  against  testator's  manifest  intent ; 
Kepler  v.  Larson,  131  Iowa,  441,  7  L.R.A.(N.S.)  1113,  108  N.  W.  1033,  holding 
provision  in  restraint  of  alienation  is  void  where  grantor  retains  no  reversionary 


305  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  461 

interest,  especially  in  case  of  conveyance  to  which  rule  in  Shelley's  Case  applies; 
Winter  v.  Dibble,  251  111.  222,  95  N.  E.  1093,  holding  that  rule  in  Shelley's  Case 
overrules  declarations  to  contrary. 

Cited  in  footnotes  to  Grainger  v.  Grainger,  36  L.  R.  A.  186,  which  holds  rule 
in  Shelley's  Case  not  applicable  to  devise  to  one  for  life,  and  after  his  death 
to  heirs  of  his  body,  if  any  survive  him,  with  devise  over  otherwise;  Starnes  v. 
Hill,  22  L.  R.  A.  598,  which  holds  indefeasible  fee  not  vested  in  one  to  whom 
life  estate  given  with  estate  in  fee  to  his  "heirs;"  Re  Browning,  3  L.  R.  A.  209, 
which  gives  first  takers  fee  simple  under  devise  to  persons  for  life,  and  then 
to  their  children  and  their  heirs;  Glover  v.  Condell,  35  L.  R.  A.  360,  which  holds 
ownership  of  fund  subject  to  limitation,  given  by  bequest  to  son  and  over 
in  case  of  death  without  living  heirs. 

Cited  in  notes  (12  L.  R.  A.  723)  on  rule  in  Shelley's  Case;  (4  L.  R.  A.  117) 
on  devise  of  life  estate  by  will;  (29  L.R.A  (N.S.)  1052,  1069,  1072,  1161;  22  Am. 
St.  Rep.  654;  110  Am.  St.  Rep.  247)  on  rule  in  Shelley's  Case. 

Distinguished  in  Albin  v.  Parmele,  70  Neb.  743,  98  N.  W.  29,  holding  under 
statute  requiring  courts  to  enforce  intent  of  parties  to  instruments  creating  or 
conveying  real  estate,  as  collected  from  whole  instrument,  remainder  in  fee  to 
heirs  might  be  limited  after  freehold  estate  to  ancestor. 

Construction    of    instrument. 

Cited  in  Gannon  v.  Peterson,  193  111.  380,  55  L.  R.  A.  704,  62  N.  E.  210,  hold- 
ing devise  using  "children"  and  "heirs"  indiscriminately  read  interchangeably 
by  courts  to  effect  intention  of  testator;  Strain  v.  Sweeny,  163  111.  607,  45  N. 
E.  201,  holding  devise  to  son  "and  his  heirs,  .  .  .  but  in  case  he  die  with- 
out issue"  then  over  to  mean  "children,"  so  as  to  effectuate  executory  devise; 
Griswold  v.  Hicks,  132  111.  502,  22  Am.  St.  Rep.  549,  24  N.  E.  63,  holding  term 
"heirs,"  in  habendum  of  deed,  limited  by  following  clause  expressing  intention 
to  convey  to  children  for  life,  "and  at  their  death  to  go  to  their  children;"  Down- 
ing v.  Grigsby,  251  111.  575,  96  N.  E.  513  (dissenting  opinion),  on  estate  of  widow 
under  will  giving  her  homestead  for  life  and  half  of  residue. 

Cited  in  footnotes  to  Wool  v.  Fleetwood,  67  L.R  A.  444,  which  holds  fee  simple 
vested  in  children  under  provision  in  will  that  five  years  after  life  tenant's  death 
they  shall  procure  the  property  to  be  divided  between  them;  Doyle  v.  Andis,  69 
L.R.A.  953,  which  holds  fee  simple  vested  in  first  taker  by  conveyance  to  one 
"during  his  natural  life  and  then  to  his  heirs;"  (11  Am.  St.  Rep.  905;  137  Am. 
St.  Rep.  652)  on  life  estates;  (23  Am.  St.  Rep.  410)  as  to  when  devise  is  con- 
strued as  one  in  fee;  (23  Am.  St.  Rep.  410)  on  construing  devise  to  widow  as 
estate  for  life;  (25  Am.  St.  Rep  523)  on  words  in  will  creating  life  estate;  (10 
Eng.  Rul.  Cas.  758)  on  creation  of  estate  tail  by  gift  to  "heirs  of  the  body"  fol- 
lowing gift  of  same  subject  to  the  praepositus. 
Execution  of  dry  trust  by  statute. 

Cited  in  Barclay  v.  Platt,  170  111.  388,  48  N.  E.  972,  holding  devise  in  trust 
for  son  and  daughter  and  their  children  creates  vested  life  estates  in  undivided 
half  of  property  in  son  and  daughter,  remainder  to  children. 

2  L.  R.  A.  461,  SYKES  v.  PEOPLE,  127  111.  117,  19  N.  E.  705. 

Cited  on  second  appeal  in  132  111.  49,  23  N.  E.  391,  stating  former  judgment 
reversed  for  erroneous  exclusion  of  evidence. 
Sufficiency  of  title  of  statute. 

Cited  in  note  (64  Am.  St.  Rep.  106)  on  sufficiency  of  title  of  statute. 
L.R.A.  Au.  Vol.  I.— 20. 


2  L.R.A.  461]  L.  R.  A.  CASES  AS  AUTHORITIES.  306 

Parol  modification  of  receipt. 

Cited  in  Thompson  v.  Thompson,  78  Minn.  386,  81  N.  W.  543,  holding  storage 
receipt  for  grain  cannot  be  modified  by  parol. 
Criminal  liability  of  warehousemen. 

Cited  in  note   (7  L.  R.  A.  532)    on  criminal  liability  of  warehousemen. 

Distinguished   in   McReynolds   v.   People,  230   111.   639,   82   N.   E.   945,   holding 
criminal  code  relative  to  fraud  in  issuing  warehouse  receipts  and  in  treatment  of 
property  stored  extends  to  all  buildings  in  which  goods,  wares  and  merchandise 
are  or  may  be  stored,  whether  for  hire  or  otherwise. 
Intent  to  defraud. 

Cited  in  State  v.  Henzell,  17  Idaho,  735,  27  L.R.A.(N.S.)  164,  107  Pac.  67, 
holding  only  intent  which  is  essential  ingredient  of  offense  of  unlawfully  selling 
grain  stored  in  warehouse  is  voluntary  commission  of  act;  Block  v.  Oliver,  102 
Ky.  277,  43  S.  W.  238,  to  contention,  intent  to  defraud  by  issuance  of  duplicate 
receipts  immaterial. 

Cited  in  note  (19  L.  R.  A.  304)  on  estoppel  by  wording  of  warehouse  receipt. 
Crime  without  intent  to  violate  latv. 

Cited  in  Gaul  v.  People,  136  111.  App.  447,  holding  keeper  of  dram-shop  bound 
at  his  peril  to  ascertain  whether  sales  he  makes  are  forbidden  by  law. 

2  L.  R.  A.  465,  TOOLE  v.  TOOLE,  112  N.  Y.  333,  8  Am.  St.  Rep.  750,  19  N.  E. 

682. 
Rift-lit  of  purchaser  at  judicial  or  other  sale  to  good  title. 

Cited  in  Moore  v.  Williams,  115  N.  Y.  586,  5  L.  R.  A.  656,  12  Am.  St.  Rep. 
844,  22  N.  E.  233,  holding  purchaser  need  not  take  defective  or  doubtful  title; 
Schwencke  v.  Haffner,  18  App.  Div.  185,  45  N.  Y.  Supp.  937,  to  point,  purchaser 
at  judicial  sale  need  not  take  doubtful  title;  Heller  v.  Cohen,  154  N.  Y.  306, 
48  N.  E.  527,  holding  purchaser  at  judicial  sale  need  not  take  defective  title 
requiring  proceedings  to  cure  it;  Correll  v.  Lauterbach,  14  Misc.  473,  36  N.  Y. 
Supp.  615,  holding  purchaser  need  not  await  result  of  action  by  vendor  against 
strangers  to  perfect  title ;  Haggerty  v.  Wagner,  148  Ind.  672,  39  L.  R.  A.  398, 
48  N.  E.  366  (dissenting  opinion),  to  point  that  purchaser  need  not  take  doubt- 
ful title  he  may  have  to  defend;  Moot  v.  Business  Men's  Invest.  Asso.  157  N.  Y. 
212,  45  L.  R.  A.  670,  52  N.  E.  1,  holding  rejection  of  title  for  defect  in  record 
cured  by  corrected  judgment  roll  on  file  unwarranted;  Ely  v.  Mathews,  58  Misc. 
367,  110  N.  Y.  Supp.  1102,  holding  purchaser  had  right  to  assume  decree  and  sale 
thereunder  conferred  not  merely  good  legal  title,  but  title  not  open  to  further 
question  or  reasonable  dispute  by  other  persons;  Moore  v.  Williams,  23  Abb. 
N.  C.  409,  22  N.  E.  233,  holding  vendee  not  required  to  take  title  subject  to  ap- 
parent judgment  lien. 

Cited  in  notes   (21  L.R.A.  46)    as  to  objections  on  account  of  doubtful  title; 
(69  L.R.A.  38)   on  relief  of  purchaser  upon  annulling  judicial  or  execution  sale; 
<135  Am.  St.  Rep.  920)  as  to  whether,  when,  and  how  a  purchaser  at  a  judicial 
sale  may  object  to  title. 
Alienage  and  escheat. 

Cited  in  notes  (31  L.  R.  A.  85,  146,  177,  32  L.  R.  A.  177)  as  to  disability  of 
aliens  and  escheat  of  property. 

2  L.  R.  A.  467,  GIBSON  v.  RICHMOND  &  D.  R.  CO.  37  Fed.  743. 

Suit  by  pledgee  or  purchaser  to  invalidate  transfer  by  corporation. 

Cited  in  Elyea  v.  Lehigh  Salt  Min.  Co.  45  App.  Div.  237,  60  N.  Y.  Supp.  1050, 
holding  pledgee  of  stock  cannot  sue  to  set  aside  contract  for  sale  of  corporate 


307  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  471 

property  and  stock;  McCaleb  v.  Goodwin,  114  Ala.  623,  21  So.  967,  holding  pur- 
chaser of  stock  estopped  to  question  deed  of  trust  given  to  secure  bonds  issued 
with  stockholder's  consent;  Havemayer  v.  Bordeaux,  3  111.  C.  C.  46,  holding 
pledgees  of  stock  have  no  right  to  notice  of  acts  of  directors ;  Cohen  v.  Big  Stone 
Gap  Iron  Co.  Ill  Va.  474,  69  S.  E.  359,  Ann.  Cas.  1912  A,  203,  holding  that 
pledgee  of  stock  cannot  maintain  action  to  set  aside  fraudulent  conveyance  by 
corporation. 

Cited  in  notes  (6  L.  R.  A.  566)  on  rights  of  bondholders;  (6  L.  R.  A.  643)  as 
to  mortgage  of  railroad  stock. 

2  L.  R.  A.  469,  FIRST  NAT.  BANK  v.  MERCHANTS  BANK,  37   Fed.  657. 
Removal  of  action  between  nonresident  parties. 

Cited  in  Burck  v.  Taylor,  39  Fed.  583;  Uhle  v.  Burnham,  42  Fed.  3;  Kosh- 
land  v.  National  Ins.  Co.  31  Or.  214,  49  Pac.  845;  Craven  v.  Turner,  82  Me.  389, 
19  Atl.  864;  American  Finance  Co.  v.  Bostwick,  151  Mass.  25,  23  N.  E.  656; 
Rome  Petroleum  &  Iron  Co.  v.  Hughes  Specialty  Well  Drilling  Co.  130  Fed. 
588, — holding  cause  removable,  although  neither  party  resides  in  district;  Dun- 
can v.  Associated  Press,  81  Fed.  421,  holding  action  between  nonresident  parties 
of  diverse  citizenship  removable;  Whitworth  v.  Illinois  C.  R.  Co.  107  Fed.  558 
holding  cause  will  not  be  remanded  to  state  court  because  neither  party  re- 
sides within  state;  Alley  v.  Edward  Mines  Lumber  Co.  64  Fed.  904.  holding 
cause  removable  although  one  of  the  plaintiffs  resides  without  state;  Sherwood 
v.  Newport  News  &  M.  Valley  Co.  55  Fed.  5,  holding  suit  by  aliens  against  cor- 
poration not  chartered  in  state  removable;  Illinois  C.  R.  Co.  v.  Whitworth,  115 
Ky.  290,  73  S.  W.  766,  holding  state  court  without  jurisdiction  over  controversy 
between  citizens  of  different  states  after  compliance  by  defendant  with  Federal 
statute  and  petition  for  removal;  Tierney  v.  Helvetia  Swiss  F.  Ins.  Co.  163  Fed. 
88,  as  to  persons  included  under  statute  forbidding  removal  of  case  in  which 
assignee  of  chose  in  action  is  plaintiff  unless  such  suit  is  maintainable  by  original 
assignor  in  district  to  circuit  court  of  which  removal  is  asked. 

Not  followed  in  Foulk  v.  Gray,   120  Fed.  157,  holding  suit  brought  in  courts 
of  state  where  neither  party  resides  not  removable  to  Federal  court,  except  by 
consent. 
Citizenship   of   stakeholder. 

Cited  in  Reeves  v.  Corning,  51  Fed.  778,  holding  citizenship  of  mere  stake- 
holder does  not  defeat  real  party  defendant's  right  of  removal. 

2  L.  R.  A.  471,  WELLES  v.  LARRABEE,  36  Fed.  866. 

Statute   rig-fats  and  liabilities  of  real  and  apparent   owner*   of  corporate 
stock. 

Cited  in  Lewis  v.  Switz,  74  Fed.  382,  holding  person  who  knowingly  permits 
name  on  national  bank-stock  books  as  owner  cannot  deny  ownership  as  against 
creditors;  Hecht  v.  Phenix  Woolen  Co.  121  Fed.  190,  holding  persons  acquiesc- 
ing in  issuance  of  stock  to  them  without  consideration,  transferred  to  another 
as  collateral  for  loan  to  corporation,  liable  as  stockholders;  Andrews  v.  Na- 
tional Foundry  &  Pipe  Works,  36  L.  R.  A.  152,  22  C.  C.  A.  120,  46  U.  S.  App. 
281,  76  Fed.  175,  holding  stockholders  by  direct  issue  as  collateral  security  for 
<lebt  not  liable  to  creditors;  Baker  v.  Old  Nat.  Bank,  86  Fed.  1007,  holding  no- 
tice afforded  on  stock  books  by  words  "collateral,"  "in  escrow,"  "trustee,"  or 
"agent,"  prevent  liability  by  estoppel;  Houghton  v.  Hubbell,  33  C.  C.  A.  575, 
63  U.  S.  App.  31,  91  Fed.  454,  holding  real  owner  of  stock  in  name  of  another 
person  on  stock  books  liable  to  creditors;  Geyser-Marion  Gold  Min.  Co.  v.  Stark, 


2  L.R.A.  471]  L.  R.  A.  CASES  AS  AUTHORITIES.  308 

53  L.  R.  A.  689,  45  C.  C.  A.  471,  106  Fed.  563,  holding  transfer  of  stock  in  name 
of  trustee  without  inquiry  for  cestui  que  trust  actionable  negligence;  Morse  v. 
Pacific  R.  Co.  93  111.  App.  39,  holding  legal,  although  not  equitable,  owner  of 
corporate  stock  liable  to  creditors;  Fowler  v.  Gowing,  152  Fed.  814,  holding 
transfer  of  national  bank  stock  to  trustee  transferred  stockholder's  liability  to 
trust  estate. 

Cited  in  notes  (36  L.R.A.  139)  on  liability  of  pledgee  of  stock  as  a  share- 
holder; (19  L.R.A.(N.S.)  249)  on  liability  of  pledgee  of  stock  as  shareholder; 
(121  Am.  St.  Rep.  198,  199)  on  rights,  remedies,  and  liabilities  of  pledgees  of 
corporate  stock;  (68  Am.  St.  Rep.  544)  on  liability  of  persons  holding  stock  as 
collateral;  (51  L:  ed.  (U.  S.)  424)  on  pledgee  as  shareholder  in  national  bank. 

Distinguished  in  Union  Sav.  Bank  v.  Willard,  4  Cal.  App.  694.  88  Pac.  1098, 
holding  trustee  recorded  as  such  on  corporate  books  liable  for  unpaid  subscrip- 
tion price  of  stock. 

2  L.  R.  A.  475,  HUDMON  BROS.  v.  DU  BOSE,  85  Ala.  446,  5  So.   162. 
Warehousemen. 

Cited  in  note   (7  L.  R.  A.  530)   on  warehousemen  as  bailees. 
Lien   of  mortgagee. 

Cited  in  Truss  v.  Harvey,  120  Ala.  641,  24  So.  927,  holding  mortgage  on  crops, 
recorded  in  county  where  grown,  notice  to  purchaser  in  another  county;  Chap- 
man v.  First  Nat.  Bank,  98  Ala.  532,  22  L.  R.  A.  80,  13  So.  764,  holding  lien 
of  livery-stable  keeper  subordinate  to  prior  recorded  mortgage  with  law  day 
passed  and  mortgagor  in  possession. 

Cited  in  notes  (18  Am.  St.  Rep.  771)  on  lien  on  growing  crops  under  chattel 
mortgage;    (21  Am.  St.  Rep.  282)   on  registration  of  chattel  mortgage. 
Liability  of  bailee  to  real  owner  for  conversion. 

Cited  in  Clay  v.  Sullivan,  156  Ala.  395,  47  So.  153,  holding  pawnbroker  liable 
in  conversion  to  wife,  whose  husband  pawned  her  ring  without  her  authority  and 
turned  pawnticket  over  to  another  person,  who  redeemed;  Pippin  v.  Farmers' 
Warehouse  Co.  167  Ala.  167,  51  So.  882,  holding  warehouseman  guilty  of  con- 
version, where  he  turned  over  to  buyer  cotton  deposited  with  him  by  mortgagor 

2  L.  R.  A.  476,  SIMMONS  v.  HILL,  96  Mo.  679,  10  S.  W.  61. 
Liability  of  ovrnera  of  legal  title  to  corporate  stocks. 

Cited  in  Bagley  v.  Tyler,  43  Mo.  App.  203,  holding  courts  will  not  look  be- 
yond registered  shareholders  in  fixing  liability  to  respond  to  creditors. 

Cited  in  notes  (30  L.R.A.(N.S.)  288)  on  liability  of  transferee  on  unpaid  stock 
subscription;  (68  Am.  St.  Rep.  542)  on  liability  of  persons  holding  stock  as 
collateral;  (121  Am.  St.  Rep.  197)  on  rights,  remedies  and  liabilities  of  pledgees 
of  corporate  stock. 

2  L.  R.  A.  480,  PHILADELPHIA  NAT.  BANK  v.  DOWD,  38  Fed.   172. 
Folio-wing   trusts  and  trust   funds. 

Cited  in  Merchants'  &  F.  Bank  v.  Austin,  48  Fed.  28,  holding  trust  funds  can 
only  be  pursued  when  clearly  distinguishable  from  other  property  of  trustee. 
Wasson  v.  Hawkins,  59  Fed.  237,  holding  deposit  in  insolvent  bank  a  few  mo- 
ments before  closing  recoverable  from  receiver;  Independent  District  v.  Beard, 
83  Fed.  11,  holding  rule  not  requiring  deposit  to  be  traced  into  any  specific 
funds  in  insolvent  bank  receiver's  hands  binding  on  Federal  courts  in  Iowa ; 
Oswego  Mill.  Co.  v.  Skillern,  73  Ark.  326,  84  S.  W.  475,  holding  money  collected 
by  bank  as  trustee  not  to  be  followed  into  hands  of  receiver  unless  identical 


309  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  480 

fund  collected  went  into  receiver's  hands,  and  went  to  swell  funds  in  his  hands; 
Ober  &  Sons  Co.  v.  Cochran,  118  Ga.  404,  98  Am.  St.  Rep.  118,  45  S.  E.  382,  hold- 
ing principal  must  trace  fund  collected  by  bank  as  agent  into  hands  of  receiver 
to  establish  right  to  take  amount  collected  out  of  funds  realized  by  converting 
bank's  assets  into  cash;  Furber  v.  Dane,  203  Mass.  121,  89  N.  E.  227,  holding 
one  who  intrusted  stocks  as  margin  to  firm  which  pledged  them  wrongfully  could 
not  trace  them  after  they  passed  into  hands  of  innocent  purchasers  for  value, 
nor  trace  proceeds  of  their  sale;  Texas  Moline  Plow  Co.  v.  Kingman  Texas  Im- 
plement Co.  32  Tex.  Civ.  App.  346,  80  S.  W.  1042,  on  extent  to  which  identifica- 
tion of  trust  property  must  go  in  order  to  follow  it. 

Cited  in  footnotes  to  Ferchen  v.  Arndt,  29  L.  R.  A.  664,  which  denies  power 
of  consignors  to  impress  with  trust  lien  funds  of  consignees  in  hands  of  re- 
ceiver; Indiana,  I.  &  I.  R.  Co.  v.  Swannell,  30  L.  R.  A.  290,  which  holds  prop- 
erty purchased  by  trustee  for  bondholders  under  reorganization  arrangement  not 
discharged  as  to  bondholders  failing  to  pay  assessments;  Central  Stock  &  Grain 
Exchange  v.  Bendinger,  56  L.  R.  A.  875,  which  holds  broker  liable  to  refund 
to  principal  money  illegally  taken  from  agent  as  margins  on  gambling  transac- 
tion; Bohle  v.  Hasselbroch,  61  L.  R.  A.  323,  which  sustains  right  of  cestuis 
que  trust  to  elect  remedy  where  trustee  buys  land  in  own  name  with  trust  funds 
mingled  with  own  funds. 

Cited  in  notes  (8  L.R.A.  789)  on  commingling  of  trust  funds;  (86  Am.  St.  Rep. 
786,  797,  804,  806)  on  right  to  recover  money  deposited  with  or  collected  by  bank 
upon  its  insolvency. 

Distinguished  or  disregarded  in  Massey  v.  Fisher,  62  Fed.  960,  holding  money 
paid  to  insolvent  bank  to  take  up  note  recoverable  from  funds  in  hands   of 
receiver. 
Banks  and  banking. 

Cited  in  New  Farmers'  Bank  v.  Cockrell,  106  Ky.  588,  51  S.  W.  2;  Union  Nat. 
Bank  v.  Citizens'  Bank,  153  Ind.  55,  54  N.  E.  97;  Hallam  v.  Tillinghast,  19 
Wash.  27,  52  Pac.  329, — holding  collection  of  draft  by  bank  establishes  merely 
the  relation  of  debtor  and  creditor  between  it  and  owner  thereof;  State  ex  rel. 
North  Carolina  Corp.  Commission  v.  Merchants'  &  F.  Bank,  137  N.  C.  699,  50 
S.  E.  308.  2  A.  &  E.  Ann.  Cas.  537,  holding  where  paper  is  sent  to  bank  indorsed 
for  collection,  relation  of  depositor  and  bank  becomes  that  of  creditor  and  debtor 
after  collection  made  and  proceeds  mingled  with  general  funds  of  bank,  and 
holder  of  such  claim  can  only  share  in  assets  pro  rata  with  general  creditors  on 
assignment  because  of  insolvency. 

Cited  in  footnotes  to  First  Nat.  Bank  v.  Payne,  3  L.  R.  A.  284,  which  holds 
partner  of  insolvent  banking  firm  cannot  pay  checks  received  from  collecting 
bank  by  charging  to  drawers  and  crediting  to  latter  bank;  Pickle  v.  People's 
Nat.  Bank,  7  L.  R.  A.  93,  which  holds  acceptance  of  check  necessary  to  give  right 
of  action  against  bank. 

Cited  in  notes   (2  L.  R.  A.  699)   on  usages  and  customs  as  to  bank  collections; 
(7  L.  R.  A.  859)   on  bank  collections;    (32  L.  R,  A.  719)   on  trust  in  proceeds 
of  collection  made  by  bank  when  insolvent. 
Right  of  cestui  qne  trust  to  preference. 

Cited  in  Re  Mulligan,  116  Fed.  718,  refusing  preference  where  misappropriated 
funds  could  not  be  traced  to  particular  stocks  in  hands  of  bankrupt's  trustee;  St. 
Louis  Brewing  Asso.  v.  Austin,  100  Ala.  322,  13  So.  908,  holding  collections 
and  deposits  induced  by  fraud  not  preferred,  unless  'identified  in  bank  receiver's 
hands;  Windstanley  v.  Second  Nat.  Bank,  13  Ind.  App.  548,  41  N.  E.  956.  hold- 
ing person  for  whom  insolvent  collected  and  retained  money^not  entitled  to  pref- 


2  L.R.A.  480]  L.  R.  A.  CASES  AS  AUTHORITIES.  310 

erence,  without  showing  what  was  done  with  such  money;  Evangelical  Synod  v. 
Schoeneich,  143  Mo.  661,  45  S.  W.  647,  holding  where  trustee  indistinguishably 
mixes  trust  money  with  his  own,  that  cestui  que  trust  will  be  preferred  over 
creditors;  Pearson  v.  Haydel,  90  Mo.  App.  261,  holding  cestui  que  trust  will  be 
preferred  so  long  as  indistinguishably  mixed  property  can  be  traced  into  trus- 
tee's estate;  Anheuser-Busch  Brewing  Asso.  v.  Clayton,  6  C.  C.  A.  110,  13 
U.  S.  App.  295,  56  Fed.  761,  and  Freiberg  v.  Stoddard,  161  Pa.  263,  28  Atl.  1111, 
Affirming  7  Kulp,  161,  holding  drawer  of  accepted  draft  charged  as  paid  by 
drawee's  bank  not  entitled  to  preference  on  bank's  insolvency;  Richelieu  Hotel 
Co.  v.  Miller,  50  111.  App.  393;  Drovers'  &  M.  Nat.  Bank  v.  Roller,  85  Md.  500r 
36  L.  R.  A.  769,  60  Am.  St.  Rep.  344,  37  Atl.  30;  Bishop  v.  Mahoney,  70  Minn. 
240,  73  N.  W.  6;  Burnham  v.  Earth,  89  Wis.  370,  62  N.  W.  96;  Thuemmler  v. 
Earth,  89  Wis.  389,  62  N.  W.  94;  Union  Nat.  Bank  v.  Goetz,  138  111.  136..  32  Am. 
St.  Rep.  119,  27  N.  E.  907;  Northern  Dakota  Elevator  Co.  v.  Clark,  3  N.  D.  33, 
53  N.  W.  175.  —  holding  owner  not  a  preferred  creditor  where  his  property  is  in- 
distinguishably mingled  with  another's  in  whose  hands  it  was;  Hill  v.  Miles.  8-7 
Ark  489,  104  S.  W.  198,  holding  one  whom  insolvent  bank  owes  for  trust  funds 
cannot  obtain  preference  without  showing  receiver  or  one  in  charge  of  assets  has 
trust  funds  or  property  purchased  therewith  or  into  which  funds  have  been 
changed  or  invested;  Lucas  County  v.  Jamison,  170  Fed.  348,  holding  funds  must 
be  identified,  not  by  earmarks,  but  traced  into  estate  and  there  found  by  aug- 
mentation of  estate  in  order  to  give  preference;  Groff  v.  City  Sav.  Fund  &  T.  Co. 
23  Lane.  L.  Rev.  285,  holding  that  cestui  que  trust  cannot  recover,  as  preferred 
claim  from  receiver  of  trust  company  money  received  by  it  in  trust  and  mingled 
with  its  general  funds. 

Cited  in  note  (25  L.  R.  A.  547)  on  exceptions  to  the  prohibition  of  preferences 
by  insolvent  national  banks. 

2  L.  R.  A.  487,  HOUSTON  v.  SLEDGE,  101  N.  C.  640,  8  S.  E.  145. 
Pleadings,   amendments. 

Cited  in  Nims  Mfg.  Co.  v.  Blythe,  127  N.  C.  326,  37  S.  E.  455,  holding  com- 
plaint might  be  amended  to  conform  to  facts  proved;  Mayes  v.  Stephens,  38  Or. 
516,  63  Pac.  760,  holding  error  to  strike  out  new  matter  in  reply:  Bremen  Min. 
&  Mill.  Co.'v.  Bremen,  13  N.  M.  129,  79  Pac.  806,  holding  motion  to  strike 
amended  complaint  from  files  before  answer  improperly  sustained. 

2  L.  R.  A.  489,  JOHNSON  v.  BROOKLYN  &  C.  R.  CO.  37  Fed.  147. 
Patent  on  combination. 

Cited  in  Vermilya  v.  Erie  R.  Co.  89  Fed.  96,  holding  injunction  pendente  lite 
should  not  be  granted  where  patent  is  for  combination  of  old  parts;  Hall  Signal 
Co.  v  General  R.  Signal  Co.  171  Fed.  437,  denying'  decree  enjoining  defendant 
from  dealing  in  signaling  apparatus  or  systems  embodying  invention,  or  any  part 
thereof,  which  were  constructed  before  expiration  of  patent,  where  parts  were 
usable  in  signal  system  not  infringement. 

Cited  in  notes  (12  L.R.A.  107)  on  patent  for  combination;  (20  Eng.  Rul.  Cas. 
856)  on  right  to  injunction  or  damages  in  an  action  for  infringement  of  patent. 

2  L.  R.  A.  489,  PITTSBURG,  C.  &  ST.  L.  R.  CO.  v.  LYON,  123  Pa.  140,  16  Atl. 

607. 
Reasonableness   of   railroad's   regulations. 

Cited  in  Muckle  v.  Rochester  R.  Co.  79  Hun,  35,  29  N.  Y.  Supp.  732,  holding 
reasonableness  of  street  railroad's  regulation  as  to  time  limit  for  transfers  a 
question  of  law. 


311  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  489 

Cited  in  note  (43  L.  R.  A.  363)   on  duties  of  master  and  servant  with  regard 
to  rules  promulgated  for  the  safe  conduct  of  a  business. 
Exemplary   damages. 

Cited  in  Ruling  v.  Henderson,  161  Pa.  560,  29  Atl.  276,  holding  exemplary 
damages  recoverable  for  wilfully  killing  trees;  Gallagher  v.  Burke,  13  Pa.  Super. 
Ct.  251,  sustaining  instruction  that  jury  might  award  exemplary  damages  for 
malicious  eviction  of  tenant;  Lynch  v.  Troxell,  207  Pa.  172,  56  Atl.  413,  holding 
question  of  exemplary  damages  for  flooding  land  wrongfully  submitted  to  jury, 
in  absence  of  evidence  that  injury  was  wilful  or  malicious;  Harlan  v.  Wabash  R. 
Co.  117  Mo.  App.  541,  94  S.  W.  737,  holding  exemplary  damages  allowable  for 
carrying  passenger  by  destination  wilfully,  intentionally  and  without  lawful 
excuse;  Hygienic  Fleeced  Underwear  Co.  v.  Way,  33  Pa.  Co.  Ct  136,  15  Pa.  Dist. 
R.  945,  holding  where  no  actual  damage  suffered,  no  exemplary  or  punitive  dam- 
ages recoverable;  Greeney  v.  Pennsylvania  Water  Co.  29  Pa.  Super.  Ct.  141, 
holding  jury  alone  can  dispose  of  evidence  on  subject  of  exemplary  damages; 
Greenwood  v.  Union  Traction  Co.  30  Pa.  Super.  Ct.  494,  holding  in  order  to  recov- 
er exemplary  damages  in  action  for  negligence  of  servant,  wrong  motive  must  ac- 
company wrongful  act;  Manegold  v.  Foundry  Co.  17  Pa.  Dist.  R.  976,  holding 
one  to  whom  wrong  has  been  already  done  by  artificial  use  of  land  may  recover 
damages  exceeding  compensation  upon  proof  of  circumstances  of  wilful  or  wanton 
oppression;  Webb  v.  Atlantic  Coast  Line  R.  Co.  76  S.  C.  199,  9  L.R.A.(N.S.)  3220, 
56  S.  E.  954,  11  A.  &  E.  Ann.  Gas.  834,  holding  punitive  damages  allowable  for 
wilful  or  wanton  failure  to  deliver  baggage;  Chatelin  v.  Wyandotte  Gas  Co.  9 
North.  Co.  Rep.  135,  denying  punitive  damages  for  negligent  maintenance  of  un- 
safe underground  siphon  drips  whose  location  were  unknown  to  defendant;  Hus- 
ton v.  Freemansburg,  9  North.  Co.  Rep.  364,  on  recovery  of  punitive  damages  for 
wanton  injury;  Funk  v.  Kerbaugh,  24  Lane.  L.  Rev.  293,  holding  punitive  dam- 
ages recoverable,  where  contractor  continues  firing  heavy  blasts  near  plaintifFa 
farm  buildings  after  notice  of  injury  being  caused  thereby. 

Cited  in  notes  (11  Am  St.  Rep.  65;  13  Am.  St.  Rep.  452;  28  Am.  St.  Rep.  878, 
882;  8  Eng.  Rul.  Gas.  377,  378)  on  exemplary  or  punitive  damages;  (9  L.R.A. 
(X.S.)  1218)  on  punitive  damages  for  wanton  failure  to  transport  baggage: 
(37  L.  ed.  U.  S.  98)  on  liability  of  railroad  or  other  corporation  for  punitive  or 
exemplary  damages;  (59  Am.  St.  Rep.  590,  591,  603)  on  exemplary  damage* 
against  corporations. 

Distinguished  in  Palmer  v.  Philadelphia,  B.  &  W.  R.  Co    218  Pa.  118,  66  Atl. 
1127,  holding  exemplary  damages  not  recoverable  by  surviving  parties  for  injuries 
resulting  in  death. 
Regulations  as  to  ba&gag-e. 

Cited  in  notes  (25  L.R.A.  (N.S.)  537)  on  duty  to  check  baggage  to  destination; 
(99  Am.  St.  Rep.  382)  on  liability  for  loss  of  baggage. 

Distinguished  in  Howell  v.  Grand  Trunk  R.  Co.  92  Hun,  426,  36  N.  Y.  Supp. 
544,   holding   railroad's   rule   against    extending   stop-over   privilege   to   baggage 
reasonable. 
Powers  of  corporations. 

Cited  in  Connecticut  River  Lumber  Co.  v.  Olcott  Falls  Co.  65  N.  H.  379,  13 
L.  R.  A.  831,  21  Atl.  1090,  holding  corporations  may  exercise  only  powers  con- 
ferred expressly  or  by  necessary  implication;  McGuire  v.  Chicago,  B.  &  Q.  R.  Co. 
131  Iowa,  367,  33  L.R.A.(N.S.)  719,  108  N.  W.  902,  holding  power  of  creating 
corporation  necessarily  implies  power  of  regulation;  distinguishing  between  natu- 
ral persons  and  corporations  as  regards  relation  to  power  of  state  to  regulate 
their  business. 

Cited  in  note  (33  Am.  St.  Rep.  248)  on  powers  of  corporation. 


2  L.R-A.  489]  L.  R.  A.  CASES  AS  AUTHORITIES.  312 

Reasonableness  of  thing  »*  question  of  law  or   fact. 

Cited  in  Kroll  v.  Close,  82  Ohio  St.  196,  28  L.R.A.  N.>.<  ."•>.  02  X  E.  29,  hold- 
ing finding  of  court  below  as  to  reasonableness  of  amount  expended  by  adminis- 
trator for  burial  of  decedent  subject  to  review  upon  facts  conceded  and  proved; 
Com.  v.  Doe,  44  Pa.  Super.  Ct.  339,  holding  that  reasonableness  of  regulation  by 
street  railway  as  to  length  of  trip  for  one  fare  is  question  for  court;  Arbour  v. 
Pittsburg  Produce  Trade  Asso.  44  Pa,  Super.  Ct.  250,  holding  that  reasonableness 
of  by-law,  where  facts  are  undisputed,  is  question  of  law;  Cincinnati.  X.  0.  &  T. 
P.  R.  Co.  v.  Lovell,  141  Ky.  260,  —  LJLA.(NJS.)  — ,  132  S.  W.  569,  holding  that 
construction  of  railroad  rules,  if  there  is  ground  for  reasonable  difference  of  opin- 
ion as  to  their  applicability,  is  for  jury. 

2  L.  R.  A.  491,  FIFTH  NAT.  BANK  v.  ASHWORTH,  123  Pa.  212.  16  Atl.  596. 
Dot  y  of  collecting  agents. 

Cited  in  American  Exeh.  Nat.  Bank  v.  Metropolitan  Nat.  Bank,  71  Mo.  App. 
457,  holding  bank  receiving  worthless  check  in  payment  of  one  sent  to  it  for 
collection  liable  to  sender;  National  Bank  v.  American  Exch.  Bank.  151  Mo. 
330,  74  Am.  St.  Rep.  527,  52  S.  W.  265,  holding  bank  surrendering  for  check, 
draft  sent  for  collection,  liable  to  sender;  Cowling  v.  American  Exp.  Co.  102 
Mo.  App.  372,  76  S.  W.  712,  holding  agent  to  collect  check,  accepting  draft,  per- 
sonally liable  to  principal;  Farmers'  &,  M.  Nat.  Bank  v.  Cuyler,  18  Pa.  Super. 
Ct  437,  9  Pa.  Dist.  R,  539,  holding  bank  receiving  check  for  collection,  and  taking 
another  in  payment,  is  liable  for  amount  of  deposited  check;  Pepperday  v.  Citi- 
zens' Nat.  Bank,  183  Pa.  522,  39  L.  R.  A.  530,  63  Am.  St.  Rep.  769,  38  Atl.  1030, 
holding  bank  liable  for  receiving  worthless  check  in  payment  on  securities  of  de- 
positor; Irwin  v.  Reeves  Pulley  Co.  20  Ind.  App.  115,  48  X.  E.  601,  holding  bank 
only  bound  to  reasonable  diligence  to  collect  draft;  Lowenstein  v.  Bresler,  109 
Ala.  329,  19  So.  860,  holding  one  receiving  check  in  payment  must  duly  present 
it  and  give  notice  of  dishonor;  Industrial  Trust,  Title  &  Sav.  Co.  v.  Weakley,  103 
Ala.  466,  49  Am.  St.  Rep.  45,  15  So.  854,  holding  delay  in  presentment  of  check 
received  in  payment  by  agent  is  at  his  risk;  National  Bank  v.  Johnson,  6  X.  D. 
186,  69  N.  W.  49,  holding  owner  of  certificate  of  deposit,  for  which  draft  taken 
by  bank  collecting  it,  entitled  to  dividends  on  draft  from  receiver  of  drawer; 
Kirkham  v.  Bank  of  America,  26  App.  Div.  121,  49  N.  Y.  Supp.  767,  holding 
bank  crediting  the  amount  of  draft  for  collection  to  sender  cannot  cancel  the 
«redit  without  returning  draft;  Paul  v.  Grimm,  165  Pa.  147,  44  Am.  St.  Rep. 
648,  30  Atl.  721,  holding  agent  liable  to  principal  for  amount  for  which  lands 
sold  received  in  bonds;  Anderson  v.  Gill,  79  Md.  318,  25  L.  R.  A.  204.  47  Am.  St. 
Rep.  402,  29  Atl.  527,  holding  drawer  of  check  discharged  by  insolvency  of  bank 
on  which  it  is  drawn  if  check  by  it  on  third  bank,  accepted  in  payment,  was  not 
presented  with  diligence;  Landa  v.  Traders  Bank,  118  Mo.  App.  368,  94  S.  W. 
770,  holding  that  if  a  bank  receives  draft  from  customer  for  collection  and  sends 
it  to  collecting  bank  which  takes  drawee's  check  and  credits  sending  bank,  which 
in  turn  credits  customer,  sending  bank  is  liable  to  customer.  Though  it  charges 
back  amount  because  of  drawee  having  stopped  payment  on  check;  Hannis  Dis- 
tillery Co.  v.  Rosenbluth,  12  Luzerne  Leg.  Reg.  Rep.  313,  23  Lane.  L.  Rev.  123, 
holding  one  seeking  to  avail  himself  of  act  of  agent  in  accepting  note  or  security 
must  show  special  authorization  or  subsequent  ralification  by  principal. 

Cited  in  footnotes  to  St.  Nicholas  Bank  v.  State  Nat.  Bank,  13  L.  R.  A.  241. 
which  holds  collecting  bank's  duty  not  fulfilled  by  delivering  correspondent's 
draft  on  third  person  to  itself:  First  Nat.  Bank  v.  Payne.  3  L.  R.  A.  284.  which 
holds  partner  of  insolvent  banking  firm  cannot  pay  checks  received  from  col- 
lecting bank  by  charging  to  drawers  and  crediting  to  latter  bank;  Bank  of  An- 


313  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  494 

tigo  v.  Union  Trust  Co.  23  L.  R.  A.  611,  which  holds  bank  takes  risk  of  accept- 
ing check  in  payment  of  note  received  for  collection;  State  Bank  v.  Byrne,  21 
L.  R.  A.  753,  which  holds  drawee's  acceptance  of  draft  presented  by  collecting 
bank  not  payment;  Corn  Exch.  Bank  v.  Farmers'  Nat.  Bank,  7  L.  R.  A.  559, 
which  holds  only  first  of  several  banks  receiving  check  for  collection  agent  of 
payee;  Grissom  v.  Commercial  Nat.  Bank,  3  L.  R,  A.  273,  which  holds  baiik  has 
no  right  to  pay  to  third  party  note  made  by  depositor. 

Cited  in  notes  (4  L.  R,  A.  422)  on  bank  receiving  paper  for  collection;  duty 
and  liability;  (7  L.  R.  A.  858)  on  duties,  rights,  obligations,  and  liabilities  of 
bank  for  collection;  (9  L.  R,  A.  109)  on  relations  between  depositor  and  bank; 
(8  L.R.A.  44)  on  liability  of  agent  of  collecting  bank;  (86  Am.  St.  Rep.  788- 
3  KR.A.(N.S.)  1180,  1181,  1182;  10  LJLA.<X.S.)  536,  539)  on  liability  of  bank 
for  taking  check  or  drafts  in  payment  of  paper  held  for  collection;  (77  Am.  St 
Rep.  624,  629)  on  duties  of  banks  acting  as  collecting  agents. 

2  L.  R.  A.  494,  PEOPLE  v.  SOULE,  74  Mich.  250,  41  N.  W.  908. 
Who   riiiiiiii.-il   in  selling:  liquor. 

Cited  in  State  v.  Austin  Club,  89  Tex.  26,  30  L.  R.  A.  503,  33  S.  W.  113,  hold- 
ing social  club  not  engaged  in  business  of  selling  liquor;  People  v.  Adelphi  Club, 
149  X.  Y.  13,  31  L.  R.  A.  513,  52  Am.  St.  Rep.  705,  43  N.  E.  410,  holding  social 
club  does  not  require  license  to  sell  its  liquor  to  members;  Mohrman  v.  State, 
105  Ga.  716,  43  L.  R.  A.  401,  70  Am.  St.  Rep.  80,  32  S.  E.  143,  holding  social 
club  a  tippling  house  to  be  closed  on  Sunday;  State  v.  Boston  Club,  45  La.  Ann. 
592,  20  L.  R.  A.  187,  12  So.  895,  holding  the  furnishing  of  drinks  to  members 
of  social  club,  sales,  within  meaning  of  act  requiring  license;  Barden  v.  Montana 
Club,  10  Mont.  335,  11  L.  R.  A.  595,  24  Am.  St.  Rep.  27,  25  Pac.  1042,  holding 
social  club  not  liable  to  pay  license  tax  for  sale  of  liquor  to  members;  Manning 
v.  Canon  City,  45  Colo  577,  23  L.R.A.(N.S.)  195,  101  Pac.  978,  holding  dispensa- 
tion of  liquors  by  club  to  members  and  guests  at  rates  fixed  by  board  of  control 
constitutes  sale;  Ada  County  v.  Boise  Commercial  Club,  20  Idaho,  437,  38  LJLA. 
t'X.S.)  110,  118  Pac.  1086,  holding  that  commercial  club  supplying  members,  with- 
out profit  to  itself,  with  liquor  to  be  consumed  in  elubrooms  ia  required  to  procure 
license;  People  v.  Craig,  155  111.  App.  76,  holding  that  club  with  lockers  for  mem- 
bers in  which  liquor  was  placed  by  secretary  was  evasion  of  liquor  law;  State 
ex  rel.  Young  v.  Minnesota  Club,  106  Minn.  524,  20  L.R.A.(X.S.)  1105,  119  N.  W 
494,  holding  serving  of  liquors  to  members  by  incorporated  club  constitutes  sale 
by  "person"  within  meaning  of  statute;  State  v.  Mudie,  22  S.  D.  51,  115  N.  W. 
107,  holding  that  giving  of  drinks  by  incorporated  commercial  club  to  its  members 
for  coupons  violates  liquor  law. 

Cited  in  footnotes  to  State  ex  rel.  Bell  v.  St.  Louis  Club,  26  L.  R,  A.  573, 
which  holds  valid,  distribution  of  liquor  among  members  by  social  club;  People 
v.  Adelphi  Club,  31  L.  R.  A.  510,  which  holds  distribution  of  liquor  by  social 
club  to  members  not  illegal  sale;  State  ex  rel.  Stevenson  v.  Law  &  Order  Club, 
62  L.  R.  A.  884,  holding  social  club  cannot  dispense  liquors  without  license  to 
members  presenting  checks  delivered  upon  payment  of  special  assessment;  Barden 
v.  Montana  Club,  11  L.  R.  A.  593,  which  holds  social  club  not  subject  to  license 
tax:  State  v.  Boston  Club,  20  L.  R.  A.  185,  which  holds  incorporated  institu- 
tions selling  liquor  to  members  owe  license;  State  v.  Horacek,  3  L.  R.  A.  687, 
which  holds  officers  and  members  of  association  selling  drinks  to  members  liable 
to  prosecution. 

Cited  in  notes  (12  L.  R.  A.  413)  on  intoxicating  liquors;  social  club;  (6  L.  R. 
A.  128)  on  social  clubs:  evasion  of  liquor  law  by;  (12  L.R.A.(N.S.)  522)  on  ap- 
plicability of  liquor  laws  to  social  club 


2  L.R.A.  494]  L.  R.  A.  CASES  AS  AUTHORITIES.  314 

Distinguished  in  State  ex  rel.  Bell  v.  St.  Louis  Club,  125  Mo.  330,  26  L.  R.  A. 
581,  28  S.  W.  604,  holding  social  club's  charter  not  forfeited  for  furnishing 
liquor  to  members  without  license  as  dramshop. 

Disapproved  in  Cuzner  v.  California  Club,  155  Cal.  314,  20  L.R.A.(N.S.)   1100, 
100  Pac.  868,  holding  an  ordinance  imposing  a  license  tax  on  the  conducting  or 
carrying  on  of  the  business  of  a  retail  liquor  dealer  does  not  apply  to  a  bona 
fide  social  club  selling  liquor  to  members  and  guests. 
Who  liable  for  selling:  liquors. 

Cited  in  State  v.  Neis,  108  X.  C.  792,  13  S.  E.  225,  upholding  conviction  for 
furnishing  liquor  for  pay  to  member  of  unorganized  syndicate  of  owners;  People 
v.  De  Groot,  111  Mich.  247,  69  N.  W.  248,  holding  one  who,  without  paying  tax, 
sells  liquor,  as  agent  of  brewing  company,  may  be  informed  against  as  principal ; 
Krnavek  v.  State,  38  Tex.  Crim.  Rep.  49,  41  S.  W.  612,  upholding  conviction  of 
steward  of  social  club  for  selling  liquor  to  members;  People  v.  Journeau,  147 
Mich.  521,  111  N.  W.  95,  holding  directed  verdict  of  guilty  of  selling  liquor  with- 
out license  not  warranted  by  evidence  as  to  restaurant  keeper's  purchasing  liquor 
at  saloon  next  door  and  bringing  it  to  guests  who  supplied  money  for  such  pur- 
pose; R.  v.  Hughes,  29  Ont.  Rep.  184,  holding  club  steward  guilty  of  selling 
liquor  without  license. 

Cited  in  note  (10  L.  R.  A.  82)  on  late  decisions  under  liquor  laws  of  Michigan. 

2  L.  R.  A.  498,  JOHN  S.  HANES  &  CO.  v.  WADEY,  73  Mich.  178,  41  N.  W.  222. 
Remedial  statutes. 

Cited  in  Daniels  v.  Detroit,  G.  H.  &  M.  R.  Co.  163  Mich.  475,  128  X.  W.  797, 
upholding  act  permitting  service  of  process  on  agent  of  foreign  corporation  in 
cases  arising  outside  jurisdiction. 

Cited  in  footnotes  to  International  Bldg.  &  L.  Asso.  v.  Hardy,  24  L.  R.  A.  284, 
which  denies  legislative  power  to  change  remedy  for  enforcing  trust  deed;  Jones 
v.  German  Ins.  Co.  46  L.  R.  A.  860,  which  sustains  statute  shortening  time  of  in- 
surance company's  immunity  from  suit  without  extending  period  of  limitations; 
Kirkman  v.  Bird,  58  L.  R.  A.  670,  which  sustains  as  to  prior  obligations  statute 
exempting  wages  for  sixty  days  preceding  levy. 

Distinguished  in  John  Spry  Lumber  Co.  v.  Sault  Sav.  Bank,  Loan  &  T.  Co.  77 
Mich.  202,  6  L.  R.  A.  205,  18  Am.  St.  Rep.  396,  43  N.  W.  778,  holding  lien  law  of 
1887  unconstitutional. 
Repeal  of  remedial  statutes. 

Cited  in  Angell  v.  West  Bay  City,  117  Mich.  690,  76  N.  W.  128,  holding  with- 
out saving  clause  repeal  of  law  giving  statutory  right  destroys  such  existing 
right;  Orman  v.  Crystal  River  R.  Co.  5  Colo.  App.  500,  39  Pac.  434,  holding  pro- 
ceedings in  action  to  enforce  lien  must  comply  with  statutes  in  force  when  right 
accrues;  Barton  v.  Steinmitz,  37  111.  App.  142,  holding  enforcement  of  mechanic's 
lien  governed  by  laws  in  force  when  mechanic  seeks  benefit  of  lien;  Wilson  v. 
Simon,  91  Md.  9,  80  Am.  St.  Rep.  427,  45  Atl.  1022,  holding  change  in  statutory 
remedy  does  not  impair  obligation  of  contract;  Mack  v.  DegrafF  &  R.  Quarries, 
57  Ohio  St.  483,  63  Am.  St.  Rep.  729,  49  N.  E.  697,  holding  foreign  material  man 
has  equal  rights  with  state  material  man  under  lien  laws:  Durkheimer  v.  Copper- 
opolis  Copper  Co.  55  Or.  45,  104  Pac.  895,  holding  valid,  amendment  of  lien  law 
omitting  provision  for  lien  of  person  working  in  mine  boarding  house. 

Cited  in  footnote  to  Miners'  &  Merchants'  Bank  v  Snyder,  68  L.R.A.  312,  which 
holds  corporate  creditor's  contract  rights  not  impaired  by  statute  requiring  all 
creditors  to  unite  in  one  suit  against  all  stockholders  for  equitable  distribution 
of  liability  fund  among  creditors. 

Disapproved  in  Waters  v.  Dixie  Lumber  &  Mfg.  Co.   106  Ga.  595,  71  Am.  St. 


315  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  .loo 

Rep.  284,  32  S.  E.  636,  holding  material  man's  lien,  when  fixed  and  secured  under 
statute,  cannot  be  taken  away;  Garneau  v.  Port  Blakely  Mill  Co.  8  Wash.  470, 
36  Pac.  463,  holding  logger's  lien  for  labor  unaffected  by  repeal  of  statute  pend- 
ing enforcement. 

2  L.  R.  A.  500,  NEFF  v.  WELLESLEY,  148  Mass.  487,  20  N.  E.  111. 
Overseers  of  poor  a«  agents  of  municipality. 

Cited  in  Fitzgerald  v.  Lewis,  164  Mass.  500,  41  N.  E.  687,  holding  overseers 
of  poor  in  control  of  poor  farm  may  exclude  trespassers. 
Duties  of  corporation  as  affecting-  liability  for  acts  of  servants. 

Cited  in  Howard  v.  Worcester,  153  Mass.  428,  12  L.  R,  A.  161,  25  Am.  St. 
Rep.  651,  27  N.  E.  11,  holding  city  engaged  in  building  schoolhouse  not  liable 
for  servant's  negligence;  Fox  v.  Chelsea,  171  Mass.  300,  50  N.  E.  622,  holding 
city  liable  for  negligence  of  water  commissioners  acting  as  city's  agents  in  lay- 
ing water  pipes;  Watson  v.  Needham,  161  Mass.  411,  24  L.  R.  A.  288,  37  N.  E. 
204,  holding  question  of  plaintiff's  fault,  or  nonliability  of  town  for  neglect  of 
water  commissioners,  not  raised;  Collins  v.  Greenfield,  172  Mass.  81,  51  N.  E. 
454,  holding  town  liable  for  negligence  in  connection  with  macadamizing  done 
voluntarily  as  private  enterprise;  Hughes  v.  Monroe  County,  79  Hun,  126,  29  X. 
Y.  Supp.  495,  holding  county  not  liable  for  injuries  to  employee  in  insane  asy- 
lum; Chicago  v.  Selz,  S.  &  Co.  104  111.  App.  381,  holding  municipality  liable  for 
damages  in  operation,  partly  for  profit,  of  waterworks  system;  Mt.  Hope  Ceme- 
tery v.  Boston,  158  Mass.  513,  35  Am.  St.  Rep.  515,  33  N.  E.  695,  holding  leg- 
islature could  not  compel  Boston  to  transfer  title  to  cemetery  to  private  corpora- 
tion, without  compensation;  Hall  v.  Concord,  71  N.  H.  373,  58  L.  R.  A.  460,  52 
Atl.  864  (dissenting  opinion),  majority  holding  municipality  not  liable  for  neg- 
ligence in  repairing  highway,  although  individual  taxpayer  bore  part  of  expense; 
Duggan  v.  Peabody,  187  Mass.  351,  73  X.  E.  206,  holding  town  liable  for  negli- 
gence of  superintendent  of  streets  in  charge  of  quarry  from  which  town  made 
sales;  Davies  v.  Boston,  190  Mass.  197,  76  N.  E.  663,  holding  furnishing  of  privi- 
leges of  ferry  for  pay  enterprise  partly  commercial  in  character  and  city  liable 
for  negligence  of  servant  on  city  ferry  boat. 

Cited  in  footnotes  to  Culver  v.  Streator,  6  L.  R.  A.  270,  which  holds  city  liable 
for  negligence  of  employee  enforcing  ordinance  against  unmuzzled  dogs  running  at 
large;  Howard  v.  Worcester,  12  L.  R.  A.  160,  which  holds  city  not  liable  for  neg- 
ligence in  blasting  for  schoolhouse;  Snider  v.  St.  Paul,  18  L.  R.  A.  151,  which 
holds  city  not  liable  for  negligence  of  agents  in  providing  and  maintaining  city 
hall;  Wilson  v.  Mitchell,  65  L.R.A.  158,  which  holds  that  municipality  cannot 
ratify  act  of  waterworks  superintendent  in  wrongfully  connecting  well  with  city 
water  mains  so  as  to  become  liable  for  water  taken  from  the  well. 

Cited  in  notes  (23  L.  R.  A.  201)  on  liability  of  charitable  institution  for 
negligence;  (9  L.  R.  A.  210)  on  drains  and  sewers,  as  to  liability  of  munici- 
pality for  its  own  negligence  only;  (5  L.  R.  A.  254)  on  liability  of  municipal 
corporations  for  injuries  resulting  from  defective  streets,  bridges,  etc. 

Distinguished  in  Taggart  v.  Fall  River,  170  Mass.  327,  49  N.  E.  622,  holding 
city  not  liable  for  negligence  connected  with  work  of  opening  street  through  its 
land;  Ulrich  v.  St.  Louis,  112  Mo.  144,  34  Am.  St.  Rep.  372,  20  S.  W.  466,  hold- 
ing corporation  not  liable  to  prisoner  in  workhouse  for  negligence;  Haley  v.  Bos- 
ton, 191  Mass.  293,  5  L.R.A.(N.S.)  1008,  77  N.  E.  888,  holding  removal  of  ashes 
from  dwelling  houses  work  of  public  nature  and  city  not  liable  for  negligence 
of  driver  of  ash  cart. 
Effect  of  contributory  negligence. 

Cited  in  Foy  v.  Winston,  126  N.  C.  384,  35  S.  E.  609.  holding  it  not,  of  itself, 


2  L.R.A.  500]  L.  R.  A.  CASES  AS  AUTHORITIES.  316 

negligence  for  blind  man  to  pass  along  street  without  a  guide;  Robbins  v.  Spring- 
field Street  R.  Co.  165  Mass.  36,  42  N.  E.  334,  holding  defendant  not  relieved 
from  liability  for  unnoticed  defects  in  plaintiff's  eyesight,  contributing  to  injury. 

Cited  in  notes  (12  L.R.A.  281)  on  contributory  negligence  as  defense  to  action 
for  damages  for  personal  injuries  caused  by  negligence;    (19  L.R.A.  (N.S.)    163) 
on  duty  of  pedestrian  on  public  street  to  avoid  passing  teams. 
Instruction  as  to  part  only  of  the  evidence. 

Cited  in  Shattuck  v.  Eldredge,  173  Mass.  168,  53  N.  E.  377;  Hicks  v.  New 
York,  N.  H.  &  H.  R.  Co.  164  Mass.  428,  49  Am.  St.  Rep.  471,  41  N.  E.  721;  Hop- 
craft  v.  Kittredge,  162  Mass.  12,  37  N.  E.  768;  Moseley  v.  Washburn,  167  Mass. 
362,  45  N.  E.  753;  Com.  v.  Cosseboom,  155  Mass.  301,  29  N.  E.  463;  Murray  v. 
Knight,  156  Mass.  522,  31  N.  E.  646, — holding  trial  judge  not  bound  to  single  out 
particular  part  of  evidence  for  special  comment. 
Care  on  part  of  infirm  persons. 

Cited  in  Apperson  v.  Lazro,  44  Ind.  App.  192,  87  N.  E.  97,  holding  that  fact 
that  man  almost  blind  was  walking  unattended  along  side  of  road  does  not  con- 
stitute negligence;  Keith  v.  Worcester  &  B  Valley  Street  R.  Co.  196  Mass.  483, 
14  L.R.A.(N.S.)  653,  82  N.  E.  680,  holding  instruction  that  person  having  defective 
eyesight  should  take  greater  care  in  walking  street  than  one  of  good  sight  prop- 
erly refused;  Brown  v.  Stevens,  136  Mich.  314,  99  N.  W.  12,  holding  storekeeper 
liable  for  injury  of  person  deaf  and  of  defective  eyesight  who  fell  through  trap- 
door opening  in  store,  not  having  been  properly  warned. 

Cited  in  notes  (9  Am.  St.  Rep.  879;  14  L.R.A.  (N.S.)  649)  on  care  required  of 
one  of  defective  sight,  in  using  streets. 

2  L.  R.  A.  502,  LITTLEJOHN  v.  FITCHBURG  R.  CO.  148  Mass.  478,  20  N.  E.  103. 
Statntory  liability  for  killing;  passenger. 

Cited  in  Worcester  &  S.  Street  R,  Co.  v.  Travelers'  Ins.  Co.  180  Mass.  266,  57 
L.  R.  A.  630,  91  Am.  St.  Rep.  275,  62  N.  E.  364,  holding  statute  fixing  penalty  for 
negligent  killing  of  passenger  is  new  right  of  action  to  executor  or  adminis- 
trator; Boston  &  M.  R.  Co.  v.  Hurd,  56  L.  R.  A.  208,  47  C.  C.  A.  619,  108  Fed. 
120,  holding  section  of  statute  fixing  penalty  for  railroad  company  negligently 
killing  passenger  not  strictly  penal;  Doyle  v.  Fitchburg  R.  Co.  162  Mass.  71,  25 
L.  R.  A.  159,  44  Am.  St.  Rep.  335,  37  N.  E.  770,  holding  intestate  could  not  have 
released  railroad  company  from  liability  for  negligence  resulting  in  death  by 
accepting  free  ticket  with  such  proviso. 
Liability  of 'carrier  to  passenger  riding  on  free  pass. 

Cited  in  Quimby  v.  Boston  &  M.  R.  Co.  150  Mass.  368,  5  L.  R.  A.  848,  23  N.  E. 
205,  holding  valid,  agreement  to  assume  risks  of  travel  on  accepting  free  pass. 
Carrier's  liability  for  otber  carrier's  negligence. 

Approved  in  Frazier  v.  New  York,  N.  H.  &  H.  R.  Co.  180  Mass.  429,  62  N.  E. 
731,  holding  railroad  liable  for  injuries  to  passenger  in  terminal  station  of  an- 
other railroad  used  by  it. 

Cited  in  Chaffee  v.  Consolidated  R.  Co.  196  Mass.  ,486,  82  X.  E.  497.  holding 
carrier  liable  for  its  negligence  resulting  in  collision  though  one  of  colliding  cars 
and  the  railway  were  under  control  of  another  corporation;  McXamara  v.  Boston 
&  M.  R.  Co.  202  Mass.  495,  89  N.  E.  131,  holding  defendant  railway  company  re- 
sponsible to  plaintiff  not  its  servant  for  negligence  of  its  inspectors,  though  de- 
fective car  is  received  from  connecting  line  for  further  transportation  over  contin- 
uous route;  Floody  v.  Great  Northern  R.  Co.  102  Minn.  86,  13  L.R.A. (N.S.)  1199, 
132  N.  W.  875,  on  liability  of  one  carrier  for  negligence  of  another. 


317  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  604 

Cited  in  footnote  to  Murray  v.  Lehigh  Valley  R.  Co.  32  L.  R.  A.  539,  which 
holds  carrier  liable  to  passenger  for  negligence  of  servant  of  other  company  over 
whose  track  train  runs. 
Liability  for  defects. 

'  Cited  in  Reynolds  v.  Merchants'  Woolen  Co.  168  Mass.  504,  47  N.  E.  406,  hold- 
ing  mill    owner    not   negligent    in   putting   into   his   mill    machinery   made   by 
reputable  makers. 
Remedy   by  action  or  Indictment  for  death  by   wroiiuful   act. 

Cited  in  Hudson  v.  Lynn  &  B.  R.  Co.  185  Mass  516,  71  N.  E.  66,  holding  as  to 
defendant's  liability  no  distinction  is  made  between  indictment  and  action  of 
tort  for  death  by  wrongful  act,  hence  to  support  recovery  in  tort  evidence  must 
warrant  finding  decedent  was  in  exercise  of  due  care  and  diligence  as  in  case 
of  indictment. 
Action  for  statutory  penalty. 

Cited  in  Younta  v.  Southwestern  Teleg.  &  Teleph.  Co.  192  Fed.  204,  on  action 
for  statutory  penalty  for  refusal  to  furnish  applicant  telephone  service. 

2  L.  R.  A.  504,  McWHORTER  v.  PENSACOLA  &  A.  R.  CO.  24  Fla.  417,  12  Am. 

St.  Rep.  220,  5  So.  129. 
Salt  against  state. 

Cited  in  Bloxham  v.  Florida  C.  &  P.  R.  Co.  35  Fla.  712,  17  So.  902,  holding 
suit  against  comptroller  to  recover  taxes,  suit  against  state,  and  cannot  be 
brought;  State  v.  Chicago,  R.  I.  &  P.  R.  Co.  61  Neb.  549,  85  N.  W.  556,  holding 
Federal  court  without  authority  to  enjoin  state  from  suing  in  corporate  capacity 
to  recover  penalties  due  under  maximum  freight  law;  and  right  of  state  to  sue 
includes  right  to  act  through  attorney  general. 

Cited  in  note  (108  Am.  St.  Rep.  834,  844)  as  to  when  public  officers  assuming 
to  act  for  government  are  subject  to  suit. 
Delegation  of  po-wer. 

Cited  in  State  ex  rel.  Godard  v.  Johnson,  61  Kan.  843,  49  L.  R.  A.  675,  60  Pac. 
1068  (dissenting  opinion),  majority  holding  that  court  of  visitation  has  no 
legislative  power  to  fix  railroad  rates;  Interstate  Commerce  Commission  v.  Cin- 
cinnati, X.  0.  &  T.  P.  R.  Co.  167  U.  S.  495,  42  L.  ed.  252,  17  Sup.  Ct.  Rep.  896, 
holding  Interstate  Commerce  Commission  has  no  power  to  determine  that  railroad 
rates  are  reasonable;  Storrs  v.  Pensacola  &  A.  R.  Co.  29  Fla.  623,  11  So.  226, 
holding  act  authorizing  railroad  commissioners  to  fix  rates  valid;  St.  Louis,  I. 
M.  &  S.  R.  Co.  v.  Xeal,  83  Ark.  598,  98  S  W.  958,  holding  association  given  au- 
thority to  designate  standard  height  of  drawbars  for  railroad  cars  and  maximum 
variation  from  such  height  not  vested  with  legislative  power;  State  ex  rel. 
Moodie  v.  Bryan,  50  Fla.  370,  39  So.  929,  on  delegation  to  railroad  commissioners 
of  power  concerning  regulation  of  rates;  State  v.  Atlantic  Coast  Line  R  Co.  56 
Fla.  623,  32  L.R.A.(X.S.)  650,  47  So.  969,  holding  authority  given  by  legislature 
to  railroad  commission  to  make  rules  and  regulations  for  intrastate  transporta- 
tion, for  violation  of  which  statutory  penalty  may  be  incurred  is  not  delegation 
of  legislative  power  violative  of  principle  of  separate  powers  of  governmental  de- 
partments, sustaining  demurrage  rule  of  commission;  Michigan  C.  R.  Co.  v.  Mich- 
igan R.  Commission,  160  Mich.  365,  125  X.  W.  549,  holding  railroad  commission 
act  valid;  Saratoga  Springs  v.  Saratoga  Gas  Electric  Light  &  P.  Co.  191  N.  Y 
146,  18  L.R.A.(X;S.)  724,  83  X.  E.  693,  14  A.  &  E.  Ann.  Gas.  606,  reversing  122 
App.  Div.  203;  107  X.  Y.  Supp.  341,  sustaining  statute  empowering  commission 
to  fix  maximum  charge  for  service  by  gas  and  electric  light  companies  except  as 
to  provision  fixing  time  such  charge  is  to  be  in  force 


2  L.R.A.  504]  L.  R.  A.  CASES  AS  AUTHORITIES.  318 

Cited  in  notes    (33  L.  R.  A.   183)    on  legislative  power  to  fix  tolls,  rates,  or 
prices;   (2  L.R.A.  195)  on  authority  of  railroad  commissioners;   (62  Am.  St.  Rep. 
295;  18  L.R.A.  (N.S. )  714)  on  power  of  legislature  to  delegate  to  commission  right 
to  fix  rates  of  public  service  corporation. 
Control  of  court  over  discretionary  official  acts. 

Cited  in  note  (125  Am.  St.  Rep.  505)  on  mandamus  to  compel  discretionary 
duties. 

2  L.  R.  A.  510,  HORNUNG  v.  STATE,  116  Ind.  458,  19  N.  E.  157. 
Fiduciary  capacity  of  county  official. 

Cited  in  McCollom  v.   Shaw,  21   Ind.  App.  68,  51   N.  E.  488,  holding  county 
commissioners  not  entitled  to  compensation  for  services  for  which  other  persons 
might  have  been  employed. 
Decision  as  to  vote  at  election. 

Cited  in  note  (47  L.  R.  A.  562)   on  decision  of  tie  vote  at  election. 

2  L.  R.  A.  512,  GAGE  v.  HAMPTON,  127  111.  87,  20  N.  E.  12. 
Who  is  a  trespasser. 

Cited  in  Mickey  v.  Barton,  194  111.  456,  62  N.  E.  802,  holding  one  entering 
upon  land  rightfully  held  by  another,  who  had  cleared  a  part  of  it,  mere  tres- 
passer; Phelps  v.  Randolph,  45  111.  App.  494,  holding  entry  with  several  men, 
taking  away  property,  cutting  wire  fence,  and  threatening  to  shoot  one  attempt- 
ing to  enter,  forcible;  Eichengreen  v.  Appel,  44  111.  App.  20,  holding  owner  may 
peaceably  eject  tenant  on  sufferance;  Harding  v.  Sandy,  43  111.  App.  445,  holding 
owner  might  take  from  another  possession  of  his  own  land;  Prouty  v.  Tilden.  164 
111.  170,  45  N.  E.  445,  holding  mere  trespass  upon  land  of  one  in  possession  under 
deed  for  twenty  years  not  act  of  dispossession;  Wahl  v.  Laubersheimer,  174  111. 
343,  51  N.  E.  860,  holding  violent  entry  on  land  not  lawful,  though  breach  of 
peace  may  not  result;  Towle  v.  Quante,  246  111.  576,  92  X.  E.  967,  holding  that 
entry  of  holder  of  tax  title  after  holder  of  paramount  title  goes  into  possession 
is  that  of  wrongdoer. 

Limited  in  Bloomington  v.   Brophy,   32   111.  App.  403,  holding  city  with   tit.le 
can  take  possession  without  actual  force. 
Wlit- ii  bar  of  statute  of  limitations  complete. 

Cited  in  Stalford  v.  Goldring,  197  111.  166,  64  N.  E.  395,  holding  bar  of  stat- 
ute not  complete  by  mere  payment  of  taxes  without  possession  before  entry  by 
paramount  title;  Mickey  v.  Barton,  194  111.  455,  62  N.  E.  802,  holding  grantee 
from  one  who  had  been  in  possession  under  colorable  title  for  sufficient  time  can 
remove  cloud  from  title;  Keppel  v.  Dreier,  187  111.  303,  58  N.  E.  386.  holding 
statutory  title  under  color  of  title,  with  possession  and  payment  of  taxes,  need 
not  be  pleaded  if  proved;  Coverdale  v.  Curry,  48  111.  App.  216,  holding  taking  pos- 
session by  removing  and  resetting  fence  sustains  action  of  forcible  entry  and 
detainer;  Sexton  v.  Carley,  47  111.  App.  320,  holding  one  claiming  under  lease, 
after  attempted  forfeiture  of  prior  ninety-five-year  lease  with  possession  of  forty 
years,  does  not  acquire  possession;  Mecartney  v.  Morse,  137  111.  484,  24  N.  E. 
576,  holding  owner  can  maintain  action  to  set  aside  tax  deed,  no  possession  under 
it  being  shown;  Travers  v.  McElvain,  181  111.  385,  55  N.  E.  135,  holding  pos- 
session under  statute  must  be  open,  notorious,  and  exclusive  to  maintain  eject- 
ment; McCauley  v.  Mahon,  174  111.  388,  51  N.  E.  829,  holding  ejectment  will  not 
lie  if  possession  does  not  concur  with  bar  of  prior  paid  taxes ;  Miller  v.  Stalker, 
158  111.  523,  42  N.  E.  79,  holding  color  of  title,  possession,  and  payment  of  taxes 
will  maintain  action  to  remove  cloud  on  title;  Coward  v.  Coward,  148  111.  274, 


319  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  517 

35  X.  E.  759,  and  Chicago  v.  Middlebrooke,  143  111.  270,  32  N.  E.  457,  holding 
action  to  remove  cloud  on  title,  by  one  claiming  under  color  of  title,  payment  of 
taxes,  and  possession,  maintainable;  Gage  v.  Smith,  142  111.  195,  31  N.  E.  430, 
holding  possession  must  be  coupled  with  color  of  title  under  tax  deed  and  payment 
of  taxes  for  term  of  years,  to  bar  true  owner;  White  v.  Harris.  206  111.  586,  69 
N.  E.  519,  holding  ejectment  plaintiff,  claiming  under  §  7,  limitation  law,  must 
show  payment  of  taxes  for  seven  successive  years  after  acquiring  color  of  title, 
and  possession  thereafter  taken. 

Cited  in  footnotes  to  Alexander  v.  Wilcox,  9  L.  R.  A.  735,  which  holds  title  ac- 
quired as  against  lien  of  tax  deed  by  ten  years'  adverse  possession;  Sontag  v. 
Bigelow,  16  L.  R.  A.  326,  which  holds  master's  deed  in  partition  proceedings  suf- 
ficient color  of  title. 

Cited  in  notes  (9  L.  R.  A.  773,  774)  on  tax  title;  adverse  possession  under 
color  of  title;  (13  L.  R.  A.  207)  on  defenses  in  actions  of  ejectment;  (6  L.  R.  A. 
833)  on  adverse  possession;  (4  L.  R.  A.  647)  on  adverse  possession;  statutory 
bar;  (11  L.R.A. (N.S.)  775)  on  invalid  tax  deed  as  color  of  title  within  general 
statutes  of  limitations. 
Who  may  maintain  action  to  Quiet  title. 

Cited  in  Hughey  v.  Winborne.  44  Fla.  608,  33  So.  249,  holding  wrongful  forcible 
possession  will  not  support  bill  to  remove  cloud;  Glos  v.  Davis,  216  111.  535,  75 
N".  E.  208,  holding  possession  taken  by  fencing  with  wire  strung  upon  posts 
eight  feet  apart  and  putting  up  "For  Sale"  sign  sufficient  to  give  right  to  main- 
tain bill  to  remove  cloud;  Le  Sourd  v.  Edwards,  236  111.  173,  127  Am.  St.  Rep. 
287,  86  N.  E.  212,  holding  possession  taken  by  holder  of  legal  title  by  putting 
out  fish  traps  and  blazing  trees  upon  submerged  land  sufficient  as  against  one 
holding  color  of  title  and  bringing  action  to  quiet  title. 

Cited  in  note  (45  Am.  St.  Rep.  376)  on  who  may  maintain  action  to  remove 
cloud  on  title. 

Distinguished  in  Montana  Ore  Purchasing  Co.  v.  Boston  &  M.  Consol.  Copper 
&  S.  Min.  Co.  27  Mont.  541,  71  Pac.  1005,  holding  equity  suit  to  quiet  title 
maintainable  by  possessor  of  apex  of  vein  claiming  extra-lateral  rights. 

2  L.  R.  A.  517,  McIXTIRE  v.  LEVERING,  148  Mass.  546,  12  Am.  St.  Rep.  594, 

20  N.  E.  191. 
Evidence  of  character. 

Cited  in  Rowland  v.  George  F.  Blake  Mfg.  Co.  156  Mass.  569,  31  N.  E.  656, 
holding  evidence  of  good  reputation  of  plaintiff  in  libel  action  properly  ex- 
cluded; Glace  v.  Hummel,  4  Dauphin  Co.  Rep.  7,  24  Pa.  Co.  Ct.  556;  Olson  v. 
Tvete,  46  Minn.  226,  48  N.  W.  914;  Bank  of  Miller  v.  Richmon,  64  Neb.  113,  89 
X.  W.  627, — holding  proof  of  plaintiff's  general  reputation  admissible  in  first 
instance  in  action  for  malicious  prosecution;  Hlubek  v.  Pinske,  84  Minn.  365,  87 
N.  E.  939,  holding  evidence  as  to  plaintiff's  bad  character  may  be  given  in  action 
for  malicious  prosecution;  Stubbs  v.  Mulholland,  168  Mo.  79,  67  S.  W.  650,  hold- 
ing, in  action  for  malicious  prosecution,  malice  may  be  inferred  from  failure  to 
inquire  as  to  character  of  accused;  Emory  v.  Eggan,  75  Kan.  83,  88  Pac.  740, 
holding  in  action  for  malicious  prosecution  evidence  of  plaintiff's  reputation  for 
honesty  and  fair  dealing  at  certain  place  is  inadmissible  to  prove  want  of  prob- 
able cause  unless  it  be  shown  plaintiff  in  alleged  malicious  prosecution  knew  or 
should  have  known  such  reputation;  Thurkettle  v.  Frost,  137  Mich.  121,  100  N. 
W.  283,  4  A.  &  E.  Ann.  Cas.  836,  holding  evidence  of  plaintiff's  previous  good 
reputation  admissible  as  bearing  upon  question  of  probable  cause  in  action  for 
malicious  prosecution;  Shea  v  Cloquet  Lumber  Co.  97  Minn.  42.  105  N.  W.  552, 


2  L.R.A.  617]  L.  R.  A.  CASES  AS  AUTHORITIES.  320 

holding  plaintiff  entitled  to  introduce  evidence  of  his  general  reputation  as  peace- 
able citizen  on  issue  as  to  probable  cause  in  action  for  malicious  prosecution; 
Martin  v.  Corscadden,  34  Mont.  320,  86  Pac.  33,  holding  evidence  of  previous 
bad  reputation  of  plaintiff  in  action  for  malicious  prosecution  admissible  to  rebut 
proof  of  want  of  probable  cause,  and  mitigate  damages  but  evidence  as  to  specific 
acts  not  generally  known  in  community  not  within  rule;  Glace  v.  Hummel,  10  Pa. 
Dist.  R.  114,  holding  plaintiff  in  action  for  malicious  prosecution  may  give  evi- 
dence of  his  good  character  known  to  defendant;  Carroll  v.  Central  R.  Co.  134 
Fed.  686,  holding  evidence  to  prove  good  character  of  plaintiff  before  character 
attacked  inadmissible  in  action  for  malicious  prosecution. 

Distinguished  in  Geary  v.  Stevenson,  169  Mass.  32,  47  X.  E.  508,  holding  evi- 
dence of  plaintiff's  good  reputation  inadmissible  in  action  for  false  imprison- 
ment; Richard  v.  Boland,  5  Misc.  554,  26  N.  Y.  Supp.  57,  holding  evidence  as  to 
plaintiff's  good  character  inadmissible  in  action  for  malicious  prosecution  for 
act  not  involving  moral  turpitude. 
Malicious  prosecution. 

Cited  in  Shattuck  v.  Simonds,  191  Mass.  509,  72  N.  E.  122,  holding  plaintiff  in 
action  for  malicious  prosecution  entitled  to  go  to  jury  upon  showing  of  bad  faith 
and  such  doubt  of  his  guilt  as  shows  want  of  probable  grounds  which  would 
lead  reasonable  men  to  believe  him  guilty. 

Cited  in  note  in  (26  Am.  St.  Rep.  156,  157,  160)  on  malicious  prosecution  of 
criminal  charge. 

2  L.  R.  A.  519,  LORD  v.  EDWARDS,  148  Mass.  476,  12  Am.  St.  Rep.  581,  20  X. 

E.  161. 
Passing-  of   title  on  sale  of  personal  property,  who  must   bear  loss 

Cited  in  Alden  v.  Hart3  161  Mass.  581,  37  N.  E.  742,  holding  it  unnecessary  to 
decide  question  whether,  in  contract  for  sale  and  delivery,  title  to  coal  passes 
when  put  aboard  vessel  for  shipment;  Mobile  Fruit  &  Trading  Co.  v.  McGuire, 
81  Minn.  235,  83  N.  W.  833,  holding  buyer  assumes  risk  of  deterioration  incident 
to  course  of  transportation;  McKee  v.  Wild,  52  Neb.  12,  71  X.  W.  958,  holding 
warranty  of  quality  in  sale  of  corn  applied  to  corn  when  delivered  for  shipment: 
Murphy  v.  Lever,  147  111.  App  464,  holding  warranty  steam  pressure  capacity 
of  boiler  in  lease  not  continuous  where  no  words  indicated  such  intention. 

Cited  in  footnotes  to  Anderson  v.  Crisp,  18  L.  R.  A.  419,  which  holds  contract 
for  sale  of  certain  number  of  unsegregated  brick  to  be  taken  from  kiln  does  not 
pass  title;  Tyler  Lumber  Co.  v.  Charlton,  55  L.  R.  A.  301,  which  holds  title  does 
not  pass  by  acceptance  of  offer  to  sell  lumber  piled  at  mill  to  be  inspected  by 
common  employee. 

Cited  in  notes  (5  L.  R.  A.  703)  on  sale  of  goods  by  sample;  (17  L.  R.  A.  177, 
180)  on  essentials  of  a  valid  sale  of  goods;  (62  L.  R.  A.  798)  on  effect  of  con- 
tract to  ship  goods  f.  o.  b.;  (26  L.R.A.(N.S.)  2)  on  sufficiency  of  selection  or 
designation  of  goods  sold  out  of  larger  lot. 

Distinguished  in  Carleton  v.  Lombard,  149  N.  Y.  604,  44  N.  E.  1121,  holding 
manufacturers  liable  for  latent  defects  in  goods  corresponding  in  description  to 
those  ordered. 

2  L.  R.  A.  520,  LOUISVILLE,  N.  A.  &  C.  R.  CO.  v.  BUCK,  116  Ind.  566,  9  Am. 

St.  Rep.  883,  19  N.  E.  453. 
Pleading. 

Cited  in  Chicago  &  E.  R.  Co.  v.  Lee,  17  Ind.  App.  219,  46  X.  E.  543,  holding 
complaint  insufficient  because  no  allegation  of  want  of  knowledge  of  change  in 
railroad  roadbed  making  it  unsafe  to  work  in;  Louisville,  N.  A.  &  C.  R.  Co.  v. 


321  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  520 

Sandford,  117  Ind.  266,  19  X.  E.  770,  holding  allegation  of  ignorance  of  baggage 
master  of  defect  in  railroad  bridge  essential  to  recovery;  Evansville  &  T.  H.  R. 
Co.  v.  Duel,  134  Ind.  158,  33  X.  E.  355,  holding  knowledge  by  master,  actual  or 
imputed,  of  defective  condition  of  engine,  must  be  alleged;  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  v.  Starks,  174  Ind.  347,  92  N.  E.  54,  holding  that  complaint  for 
negligently  caused  death  of  man  leaving  widow  and  minor  children  is  not  de- 
fective because  of  omission  of  express  allegation  of  damages. 
•When  master  liable. 

Cited  in  Louisville,  X.  A.  &  C.  R.  Co.  v.  Heck,  151  Ind.  308,  50  N.  E.  988,  hold- 
ing train  despatcher  vice  principal;  Cincinnati,  H.  &  D.  R.  Co.  v.  McMullen,  117 
Ind.  444,  10  Am.  St.  Rep.  67,  20  X.  E.  287,  holding  railroad  company  must  pro- 
vide and  maintain  in  good  condition  brake  handles;  Cincinnati,  I.  St.  L.  &  C.  R. 
Co.  v.  Roesch,  126  Ind.  447,  26  X.  E.  171,  holding  railroad  company  liable  for 
putting  cable  used  in  unloading  car  to  unusual  strain;  Indiana,  I.  &  I.  R.  Co.  v. 
Snyder,  140  Ind.  653,  39  N.  E.  912,  holding  railway  company  liable  for  defective 
handle  made  by  carpenter  in  its  shops;  Indiana  Xatural  &  Illuminating  Gas  Co. 
v.  Marshall,  22  Ind.  App.  124.  52  X.  E.  232,  holding  master  undertakes  that  ap- 
pliance for  electric-light-pole  climbing  is  fit  for  that  use;  Cincinnati,  I.  St.  L.  & 
C.  R.  Co.  v.  Lang,  118  Ind.  583,  21  X.  E.  317,  holding  servant  sent  on  special 
order  not  bound  to  know  of  the  running  of  irregular  train;  Rogers  v.  Leyden,  127 
Ind.  58,  2G  X.  E.  210.  holding  servant  can  recover^  although  aware  of  unsafe 
place,  if  ignorant  that  peril  is  increased;  Pittsbiirgh,  C.  C.  &  St.  L.  R.  Co.  v. 
Woodward.  9  Ind.  App.  172,  36  X'.  E.  442,  holding  brakeman  does  not  assume  risk 
of  latent  defect  in  track  and  cars;  Salem  Stone  &  Lime  Co.  v.  Tepps,  10  Ind.  App. 
519,  38  N.  E.  229.  holding  quarry  stripper  not  required  to  inspect  machinery  to 
discover  latent  defect;  Louisville,  X.  A.  &  C.  R.  Co.  v.  Howell,  147  Ind.  270,  45 
N.  E.  584,  holding  employee  not  bound  to  discover  broken  coupling  link  when  he 
had  not  used  it,  and  break  was  not  obvious;  Pennsylvania  Co.  v.  Burgett,  7 
Ind.  App.  346,  33  X".  E.  914,  holding  that  servant  cannot  recover  when  aware  of 
defects;  Levey  v.  Bigelow,  6  Ind.  App.  694,  34  X.  E.  128,  holding  minor  with 
knowledge  of  danger  of  handling  safe  appliance  takes  risk  of  employment;  Brazil 
Block  Coal  Co.  v.  Gibson,  160  Ind.  328,  98  Am.  St.  Rep.  281,  66  X.  E.  882,  holding 
servant  may  rely  on  master's  duty  to  furnish  reasonably  safe  and  proper  ap- 
pliances and  inspect  same  having  been  performed,  unless  defects  obvious  to  serv- 
ant while  giving  proper  attention  to  duties  of  his  employment. 

Cited  in  footnotes  to  Sweet  v.  Ohio  Coal  Co.  9  L.  R.  A.  861,  which  holds  master 
may  conduct  business  in  own  way.  though  other  method  less  hazardous;  Minty  v. 
Union  P.  R.  Co.  4  L.  R.  A.  409.  which  holds  that  it  will  be  presumed,  in  case 
of  derailment,  that  suitable  instrumentalities  provided;  Louisville  &  X.  R.  Co.  v. 
Hall,  4  L.  R.  A.  710.  which  holds  company  liable  to  brakeman  for  injury  by  low 
bridge;  Goodrich  v.  Xew  York  C.  &  H.  R.  R.  Co.  5  L.  R.  A.  750,  which  holds  mas- 
ter liable  for  using  foreign  cars  with  defective  coupling  apparatus;  Lehigh  &  W. 
Coal  Co.  v.  Hayes,  5  L.  R.  A.  441,  which  holds  master  furnishing  ordinary  appli- 
ances not  liable  for  failure  to  furnisn  unusual  one;  Tennessee  Coal,  I.  &  R.  Co.  v. 
Kyle,  12  L.  R.  A.  103,  which  holds  running  freight  train  without  cow-catcher 
negligence;  Pittsburg  &  L.  E.  R.  Co.  v.  Henley,  15  L.  R.  A.  384,  which  holds 
use  of  two  coupling  devices  not  negligence  per  se;  Philadelphia  &  R.  R.  Co.  v. 
Huber,  5  L.  R.  A.  439,  which  holds  brakeman  not  negligent  per  se  in  using 
brake  manifestly  defective ;  Little  v.  Southern  R.  Co.  66  L.R.A.  509,  which  denies 
employer's  liability  for  injury  to  employee  proximately  caused  by  his  violation 
of  a  penal  statute  or  municipal  ordinance  although  employer  directed  such  vio- 
lation; Crawford  v.  United  R.  &  E.  Co.  70  L.R.A.  489,  which  holds  street  car 
•company  liable  for  injury  to  employee  by  defect  in  car  due  to  custom  in  leaving 
L.R.A.  Au.  Vol.  L— 21. 


2  L.R.A.  520]  L.  R.  A.  CASES  AS  AUTHORITIES.  32£ 

it  for  several  hours  of  night  in  public  street  after  inspection,  without  rule  or 
regulation  for  guarding  from  negligent  or  wanton  injury. 

Cited  in  notes  (17  L.  R.  A.  77)  on  action  by  parent  for  death  of  child  caused  by 
negligence;  (41  L.  R.  A.  40)  on  actual  knowledge  as  an  element  of  an  employer's 
liability  to  an  injured  servant;  (41  L.  R.  A.  46)  on  liability  of  employer  predi- 
cated on  constructive  knowledge  as  to  the  condition  of  machinery  and  appa- 
ratus; (41  L.  R.  A.  128)  on  obligation  of  master  and  servant  as  to  inspection 
of  instrumentalities  in  use;  (5  L.  R.  A.  172)  on  action  for  damages  for  death 
caused  by  negligence;  (4  L.  R.  A.  797)  on  duty  of  employer  to  provide  safe  ma- 
chinery, tools,  and  appliances;  (4  L.  R.  A.  261)  on  liability  for  death  caused  by 
negligence;  (13  L.  R.  A.  375)  as  to  when  servant  assumes  risk  of  implements  fur- 
nished; (5  L.R.A.  340)  on  the  law  of  the  land;  (17  L.R.A.(N.S.)  77)  on  servant's 
assumption  of  risk  from  latent  danger  or  defect;  (97  Am.  St.  Rep.  888)  on  right 
of  recovery  by  employees  accepting  extra  hazardous  duties;  (98  Am.  St.  Rep. 
310)  on  liability  to  servant  for  injuries  due  to  defective  machinery  and  appli- 
ances. 
Effect  of  Sunday  law. 

Cited  in  Gross  v.  Miller,  93  Iowa,  80,  26  L.  R.  A.  608,  61  N.  W.  385,  holding 
Sunday  hunting  no  bar  to  action  for  being  shot;  Kansas  City  v.  Orr,  62  Kan. 
68,  50  L.  R.  A.  786,  61  Pac.  397,  holding  city  cannot  defend  for  negligence  on 
ground  that  wTork  was  performed  on  Sunday;  Solarz  v.  Manhattan  R.  Co.  8  IMi>c. 
658,  29  N.  Y.  Supp.  1123,  holding  Sunday  law  cannot  be  pleaded  as  defense; 
Hoadley  v.  International  Paper  Co.  72  Vt.  81,  47  Atl.  169,  holding  no  "defense  that 
decedent  was  working  on  Sunday;  Western  U.  Teleg.  Co.  v.  Yopst,  118  Ind.  254, 

3  L.  R.  A.  227,  20  N.  E.  222,  holding  allegation  of  necessity  essential  to  valid 
Sunday  contract. 

Annotation  cited  in  Smith  v.  Marion  Fruit  Jar  &  Bottle  Co.  84  Kan.  553,  114 
Pac.  845,  on  violation  of  Sunday  law  as  contributory  negligence. 

Cited  in  footnotes  to  Gross  v.  Miller,  26  L.  R.  A.  605,  which  holds  violation  of 
Sunday  law  by  hunting  no  defense  to  action  for  negligent  injury;  Dugan  v. 
State,  9  L.  R.  A.  321,  which  holds  pilot  on  board,  carrying  pleasure  parties  on 
Sunday,  punishable;  Handy  v.  Globe  Pub.  Co.  4  L.  R.  A.  466,  which  holds  it  un- 
necessary to  plead  illegality  of  contract  for  publishing  Sunday  newspapers:  Van 
Auken  v.  Chicago  &  W.  M.  R.  Co.  22  L.  R.  A.  33,  which  holds  riding  home  from 
station  quietly  on  Sunday  evening  not  labor. 

Cited  in  note   (36  L.R.A.  (N.S.)   548)   on  violation  of  Sunday  law  as  defense  to 
action  for  personal  injuries. 
"When  action  for  dama&es  maintainable. 

Cited  in  Clore  v.  Mclntire,  120  Ind.  264,  22  X.  E.  128,  holding  action  by  admin- 
istrator for  death  by  negligence  of  intestate  maintainable. 

Cited  in  footnote  to  O'Reilly  v.  New  York  &  N.  E.  R.  Co.  6  L.  R.  A.  719,  holding 
action  may  be  maintained  in  one  state  by  personal  representative  of  one  killed 
by  carrier  in  another  state,  where  cause  of  action  survives  by  statute  of  the 
two  states. 

Cited  in  note  (7  L.  R.  A.  154)  on  action  for  damages  for  death  caused  by  negli- 
gence. 
Damages  to  support   action. 

Cited  in  Hunt  v.  Conner,  26  Ind.  App.  50,  59  N.  E.  50,  holding  damages  to 
wife  and  children  for  loss  of  services  of  father  might  include  value  of  personal 
services  and  paternal  assistance:  Wabash  R.  Co.  v.  Cregan,  23  Ind.  App.  4,  54  N. 
E.  767,  holding  pecuniary  loss  not  implied  from  decease  of  younger  brother  not 
bound  to  contribute  to  support  of  older  brothers;  Tuteur  v.  Chicago  &  N.  W.  R. 


323  L,  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  520 

Co.  77  Wis.  509,  46  N.  W.  897,  holding  jury  can  consider  reasonable  expectation 
of  pecuniary  benefit  to  children,  from  loss  of  mother,  by  way  of  support  or  other- 
wise; Korrady  v.  Lake  Shore  &  M.  S.  R.  Co.  131  Ind.  262,  29  N.  E.  1069,  holding 
presumption  that  father's  services  are  of  value  to  wife  and  infant  children; 
Pape  v.  Wright,  116  Ind.  504,  19  N.  E.  459,  holding  middleman  can  recover 
commission  for  procuring  purchaser  of  patented  articles,  although  sale  by  owner 
illegal;  Dugan  v.  Myers,  30  Ind.  App.  233,  96  Am.  St.  Rep  341,  65  N.  E.  1046, 
holding  'minor  son  nineteen  years  of  age  might  share  in  fund  recovered  for 
father's  death  by  wrongful  act,  though  son  not  supported  by  father,  nor  father 
receiving  son's  wages;  Consolidated  Stone  Co.  v.  Staggs,  164  Ind.  33U,  73  N.  E. 
695,  holding  in  action  for  wrongfully  causing  death  jury  should  be  confined  to 
compensation  for  pecuniary  loss,  but  within  range  of  evidence  bearing  on  that 
subject,  question  of  damages  one  of  fact. 

Cited  in  footnotes  to  Fordyce  v.  McCants,  4  L.  R.  A.  296,  which  holds  only 
nominal  damages  recoverable  for  death  of  child  not  shown  to  have  assisted 
father;  Illinois  C.  R.  Co.  v.  Slater,  6  L.  R.  A.  418,  which  authorizes  allowance  to 
infant  for  loss,  by  injury,  of  earnings  during  minority. 

Cited  in  note  (12  Am,  St.  Rep.  379)  on  measure  of  damages  for  causing  death. 
Questions  for  Jury. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Burton,  139  Ind.  378,  47  Am.  St. 
Rep.  274,  37  N.  E.  150,  holding  jury  should  determine  amount  of  damages  for 
loss  of  services  of  husband  by  death;  Indiana,  I.  &  I.  R.  Co.  v.  Bundy,  152  Ind. 
596,  53  N.  E.  175,  holding  jury  should  decide  whether  rear-end  brakemen  knew  of 
open  wires  over  which  he  tripped  in  uncoupling  car;  Lake  Shore  &  M.  S.  R.  Co.  v. 
Mclntosh,  140  Ind.  269,  38  N.  E.  476,  holding  court,  and  not  jury,  should  draw 
conclusion  as  to  proximate  cause  of  death  from  facts  found;  Wabash  &  W.  R.  Co. 
v.  Morgan,  132  Ind.  440,  31  N.  E.  661,  holding  instruction  as  to  duty  of  master 
and  servant  to  ascertain  defects  and  look  out  for  danger  proper;  Cleveland,  C.  C. 
&  St.  L.  R.  Co  v.  Drumm,  32  Ind.  App.  549,  70  N.  E.  286,  on  submission  to  jury 
of  question  of  damages  allowable  for  causing  death  by  wrongful  act. 
Special  verdict. 

Cited  in  Suit  v.  Warren  School  Twp.  8  Ind.  App.  659,  36  N.  E.  291,  holding  spe- 
cial verdict  should  have  found  facts  upon  which  subscription  to  school  was  con- 
ditioned; Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Grames,  8  Ind.  App.  134,  34  N.  E.  613, 
holding  special  verdict  does  not  call  for  instructions  on  law;  Louisville,  N.  A.  & 
C.  R.  Co.  v.  Hart,  119  Ind.  281,  4  L.  R.  A.  553,  21  N.  E.  753,  holding  special 
verdict,  silent  as  to  condition  and  operation  of  locomotive,  to  be  regarded  as  find- 
ing against  plaintiff;  Rietman  v.  Stolte,  120  Ind.  317,  22  N.  E.  304,  holding  spe- 
cial verdict  having  found  servant's  knowledge  of  defect,  he  cannot  recover; 
Nicodemus  v.  Simons,  121  Ind.  569,  23  N.  E.  521,  holding  objection  as  to  silence  of 
verdict  upon  material  fact  waived;  O'Neal  v.  Chicago  &  I.  Coal  R.  Co.  132  Ind. 
113,  31  N.  E.  669,  holding  special  verdict  required  finding  of  peril  of  notoriously 
uneven  track  as  incident  to  service;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Bates,  146 
Ind.  567,  45  N.  E.  108,  holding  special  verdict  did  not  find  facts  showing  foreign 
car  was  not  duly  inspected ;  Boyer  v.  Robertson,  144  Ind.  607,  43  N.  E.  879,  hold- 
ing special  verdict  defective  which  found  evidence,  but  not  inference  from  it; 
Evansville  &  R.  R.  Co.  v.  Maddux,  134  Ind.  579,  33  X.  E.  345,  holding  special  ver- 
dict silent  as  to  manner  of  loading  car,  fact  must  be  held  to  be  found  against  one 
bound  to  prove  it;  Evansville  &  T.  H.  R.  Co.  v.  Taft,  2  Ind.  App.  242,  28  N.  E.  443, 
holding  venire  de  novo  will  not  be  granted  when  special  verdict  sustained  by  facts 
found;  Fisher  v.  Fisher,  8  Ind.  App.  666,  36  N.  E.  296,  holding  illegality  of  con- 
sideration must  be  found  in  special  verdict  to  sustain  defense  in  action  on  note; 
Lake  Shore  &  M.  S.  R.  Co.  v.  Kurtz,  10  Ind.  App.  63,  35  N.  E.  201,  holding  com- 


2  L.R.A.  520]  L.  R.  A.  CASES  AS  AUTHORITIES.  324 

plaint  defective  for  lack  of  averment  of  knowledge  of  defect  by  master,  not  cured 
by  special  findings  of  jury. 
Declaration  as   part   of  transaction. 

Cited  in  Slavens  v.  Northern  P.  R.  Co.  38  C.  C.  A.  158,  97  Fed.  262,  holding 
*leclaration  of  deceased  workman  before  accident,  that  he  understood  the  dangv." 
of  place  he  was  working  in,  admissible;  State  v.  Murphy,  16  R.  I.  531,  17  Atl. 
998,  holding  declaration  of  deceased  as  to  his  assailants,  made  within  fifteen  min- 
utes thereafter,  admissible;  Ohio  &  M.  R.  Co.  v.  Stein,  133  Ind.  253,  19  L.  R.  A. 
749,  31  N.  E.  180,  holding  declaration  of  engineer  of  locomotive  drawing  train, 
made  within  few  minutes  of  accident,  admissible;  Keyes  v.  State,  122  Ind.  530, 
23  N.  E.  1097,  holding  remark  made  in  quarter  of  a  minute  after  shot  fired  ad- 
missible; Green  v.  State,  154  Ind.  658,  57  N.  E.  637,  holding  exclamation  of  de- 
ceased, immediately  after  shot  fired,  admissible;  Louisville,  E.  &  St.  L.  R.  Co.  v. 
Berry,  2  Ind.  App.  433,  28  N.  E.  714,  holding  declaration  of  deceased,  immedi- 
ately after  accident,  admissible;  Cross  Lake  Logging  Co.  v.  Joyce,  28  C.  C.  A. 
252,  55  U.  S.  App.  221,  83  Fed.  991,  holding  statement  by  injured  man,  accusing 
first  man  coming  to  his  assistance  of  being  indirect  cause  of  accident,  admissible; 
Patterson  v.  Hochster,  38  App.  Div.  401,  56  N.  Y.  Supp.  467,  holding  declaration 
of  deceased  as  to  injury,  while  lying  on  sidewalk  with  leg  in  coal  hole,  admis- 
sible; Peirce  v.  Van  Dusen,  24  C.  C.  A.  293,  47  U.  S.  App.  339,  78  Fed.  707,  hold- 
ing declaration  of  engineer  of  locomotive  that  backed  the  car  by  which  hand  in- 
jured admissible;  Washington  &  G.  R.  Co.  v.  McLane,  11  App.  D.  C.  223,  holding 
declaration  of  deceased  boy  of  fourteen,  while  lying  between  tracks  with  legs 
severed,  admissible  as  to  cause  of  accident;  Metropolitan  R.  Co.  v.  Collins.  1  App. 

D.  C.  387,  holding  declaration  of  transfer  agent  of  street  car  line,  that  conductor 
started  car  without  his  authority,  inadmissible;   Hinchcliffe  v.  Koontz,  121  Ind. 
424,'  16  Am.   St.  Rep.  403,  23   N.  E.  271,  holding  letter  in  reference  to  hiring, 
written  day  before  and  received  day  after  contract  made,  admissible;  Ft.  Wayne 
&  W.  Valley  Traction  Co.  v.  Roudebush,  173  Ind.  63,  88  X.  E.  676,  holding  admis- 
sible, declaration  of  motorman  lying  in  wreckage,  as  to  cause  of  collision;  Puls 
v.  Grand  Lodge,  A.  0.  U.  W.  13  N.  D.  573,  102  N.  W.  165,  holding  testimony  as  to 
what  deceased  said  as  to  supposed  cause  of  his  death  part  of  res  gestae;  Dunn 
v   Chicago,  R.  I.  &  P.  R.  Co.  130  Iowa,  596,  6  L.R.A.(N.S.)   459,  107  N.  W.  616, 
8  A.   &   E.  Ann.  Gas.  226    (dissenting   opinion),   on   admissibility   of   statement 
made  by  deceased  immediately  after  his  injury  as  to  manner  in  which  he  had  been 
luirt;  Cincinnati.  L.  &  A.  Electric  Street  R.  Co.  v.  Stable,  37  Ind.  App.  545.  70  X. 

E.  551,  holding  testimony  that  immediately  after  collision  motorman  stated  to 
conductor  that  brakes  failed  on  account  of  wet  rails  and  caused  accident  admissi- 
ble as  part  of  res  geste;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Haislup,  39  Ind.  App. 

-'397,  79  N.  E.  1035,  holding  testimony  as  to  plaintiff's  declarations  to  conductor 
as  to  cause  of  plaintiff's  fall  from  train  admissible  as  part  of  res  gestate;  Bo  wen 
'.v.  White,  26  R.  I.  73,  58  Atl.  252,  holding  letter  written  by  plaintiff  himself  in- 
admissible where  not  voluntarily  and  spontaneously  made  so  nearly  in  presence 
of  transaction  to  which  it  related  as  necessarily  to  exclude  idea  of  design  or 
-deliberation;  Leach  v.  Oregon  Short  Line  R.  Co  29  Utah,  295,  110  Am.  St.  Rep. 
708,  81  Pac.  90,  holding  declaration  of  conductor:  "My  God,  Go  back  and  see  if 
you  can  find  L — .  The  bridge  knocked  him  off,"  admissible  in  action  to  recover  for 
negligently  causing  death  of  L — ,  a  brakeman;  Stevens  v.  Friedman,  58  W.  Va. 
84,  51  S.  E.  132,  holding  trial  and  acquittal  subsequent  to  alleged  assault  and 
battery  inadmissible  as  part  of  res  gestae;  R.  v.  McMahon,  18  Ont.  Rep.  518, 
holding  statements  made  by  the  deceased  after  he  came  to  the  house  of  a  witness 
ivhere  he  died  were  not  admissible  as  part  of  the  res  gestae. 


325  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  528 

Cited  in  notes  (19  L.R.A.  749)  on  declarations  of  injured  party  and  third  per- 
sons, when  admissible;  (27  Am.  St.  Rep.  907)  on  evidence  of  res  gestae;  (11 
Eng.  Rul.  Cas.  293)  on  admissibility  of  declarations  as  part  of  the  res  gestae. 

Disapproved  in  Chicago,  B.  &  Q.  R.  Co.  v.  Johnson,  36  111.  App.  566,  holding 
statement  of  injured  woman,  made  to  her  daughter  immediately  after  accident  a» 
to  its  cause,  inadmissible. 
Public  policy  affecting  action. 

Cited  in  Levy  v.  Spencer,  18  Colo.  538,  36  Am.  St.  Rep.  303,  33  Pac.  415,  holding 
action  to  enforce  illegal  executory  contract  will  not  be  sustained;  Winchester 
Electric  Light  Co.  v.  Veal,  145  Ind.  oil,  41  N.  E.  334,  holding  county  treasurer 
cannot  recover  on  notes  given  for  public  money  illegally  loaned  by  him. 

2  L.  R.  A.  526,  ROYAL  v.  AULTMAN-TAYLOR  CO.  116  Ind.  424,  19  N.  E.  202. 
Demand  of  performance. 

Cited  in  Van  Horn  v.  Mercer,  29  Ind.  App.  283,  64  N.  E.  531,  holding  demand 
unnecessary  before  suit  for  breach  of  agreement  to  support  grantor  in  considera- 
tion of  land  conveyed,  which  grantee  has  sold. 

Distinguished  in  Bonniwell  v.  Madison,  107  Iowa,  89,  77  N.  W.  530,  holding- 
where  there  is  an  evident  waiver  of  performance  of  condition  subsequent  demand 
is  necessary  before  forfeiture. 
Conditions  subsequent. 

Cited  in  note  (93  Am.  St.  Rep.  574)  on  mode  of  taking  advantage  of  breach 
of  condition  subsequent. 

Distinguished  in  Van  Horn  v.  Mercer,  29  Ind.  App.  280,  64  N.  E.  531,  holding- 
estate  upon  condition  subsequent  not  created  by  deed  providing  that  grantee's 
agreement  to  support  grantor  should  be  a  lien  for  certain  sum. 
Waiver. 

Cited  in  Ohio  Valley  Buggy  Co.  v.  Anderson  Forging  Co.  168  Ind.  603,  81  N.  E. 
574,  11  A.  &  E.  Ann.  Cas.  1045,  holding  that  acceptance  of  payment  after  vendee 
was  in  default  is  not  w-aiver  by  vendor  of  right  to  rescind  contract  to  deliver 
goods  in  instalments. 

2  L.  R.  A.  528,  ST.  JOHXSBURY  &  L.  C.  R.  CO.  v.  WILLARD,  61  Vt.  134,  15- 

Am.  St.  Rep.  886,  17  Atl.  38. 
Ownership  of  improvements  after  foreclosure. 

Cited  in  St.  Louis,  K.  &  S.  W.  R.  Co.  v.  Nyce,  61  Kan.  412,  48  L.  R.  A.  249,  5fr 
Pac.  1040,  holding  owner  of  land  by  foreclosure  cannot  claim  value  of  improve- 
ments by  railroad,  made  before  foreclosure;  Nittany  Valley  R.  Co.  v.  Empire- 
Steel  &  I.  Co.  218  Pa.  230,  67  Atl.  349,  on  absence  of  right  of  mortgagee  to  im- 
provements upon  land  by  railroad  company  subsequent  to  mortgage. 

Cited  in  notes  (11  L.  R.  A.  727)  on  whatever  is  affixed  to  the  soil  belongs- 
thereto;  (16  L.  R.  A.  805)  on  value  of  improvements  made  by  one  taking  prop- 
erty by  eminent  domain  as  an  element  of  damages. 

Distinguished  in  Tinsley  v.  Atlantic  Mines  Co.  20  Colo.  App.  72,  77  Pac.  12r 
holding  claimant  under  tax  title  could  not  be  compelled  to  litigate  title  in  fore- 
closure suit. 
How  senior  mortn««e  affected  by  foreclosure  of  Junior. 

Cited  in  Buzzell  v.  Still,  63  Vt.  495,  25  Am.  St.  Rep.  777,  22  Atl.  619,  holding 
senior  mortgagee  not  barred  by  junior  mortgagee's  foreclosure,  though  party  to 
action. 
Title  to  improvements  on  land  by  wrongdoer. 

Cited  in  McClarren  v.  Jefferson  School  Twp.  169  Ind.  144,  13  L.R.A.(N.S  )  419, 
82  N.  E.  73,  13  A.  &  E.  Ann.  Cas.  978,  holding  owner  of  land  entered  upon  by 


2  L.R.A.  528]  L.  R.  A.  CASES  AS  AUTHORITIES.  326 

township  for  school  purposes  and  upon  which  township  had  built  schoolhouse 
and  fences  with  owner's  acquiescence  could  not  recover  value  of  improvements 
in  condemnation  proceedings  subsequent  to  entry. 

Cited  in  note  (66  L.R.A.  43,  45)  on  title  to  improvements  by  railroad  on  land 
before  condemnation. 

2  L.  R.  A.  529,  McCLEEREY  v.  WAKEFIELD,  76  Iowa,  529,  41  N.  W.  210. 
Parol  authority  to  insert  grantee's  name  in  deed. 

Cited  in  Lafferty  v.  Lafferty,  42  W.  Va.  789,  26  S.  E.  202,  holding  agent  with 
parol  authority  may  fill  blank  in  deed  writh  grantee's  name;  Exchange  Nat.  Bank 
v.  Fleming,  63  Kan.  142,  65  Pac.  213,  upholding  deed  with  grantee's  name  filled 
in  by  equitable  owner  under  parol  authority  of  legal  owner;  Hall  v.  Kary,  133 
Iowa,  468,  119  Am.  St.  Rep.  639,  110  X.  W.  930;  Clemmons  v.  McGeer,  63  Wash. 
450,  115  Pac.  1081, — holding  that  presumption  of  authority  of  grantor's  agent 
to  fill  in  grantee's  name  arises  from  agent's  possession  of  deed  in  blank;  Au- 
gustine v.  Schmitz,  145  Iowa,  595,  124  X.  W.  607,  holding  that  grantee  to  whom 
deed  is  delivery  in  blank  can  fill  in  his  vendee's  name. 

Cited  in  note  (5  Eng.  Rul.  Cas.  182)   on  authority  to  fill  in  grantee's  name  in 
deed. 
Estoppel. 

Cited  in  note  (5  L.  R.  A.  121)  on  estoppel  by  deed. 
Effect  of  notice  on  purchaser's  title. 

Cited  in  Zuber  v.  Johnson,  108  Iowa,  277,  79  X.  W.  76,  holding  purchaser  at 
execution  sale  bound  to  take  notice  of  asserted  claim  to  title  by  one  in  possession ; 
Mason  Lumber  Co.  v.  Collier,  74  Mich.  249,  41  X.  W.  913,  holding  holder  of  legal 
title  with  notice  and  in  fraud  of  equitable  title  is  trustee  for  equitable  owner. 

Cited  in  footnote  to  Odom  v.  Riddick,  7  L.  R.  A.  118,  which  holds  bona  fide  pur- 
chaser's title  not  impaired  by  grantor's  undeclared  lunacy. 

Cited  in  notes  (10  L.R.A.  677)  on  protection  of  bona  fide  holder  of  commercial 
paper;    (13  L.R.A. (N.S.)  76,  ]20)  on  possession  of  land  as  notice  of  title. 
Release  of  security  as  consideration. 

Cited  in  note  (33  L.R  A. (X.S.)  61)  on  release  of  security  for  old  debt  as  valuable 
consideration. 

2  L.  R.  A.  532,  WEEKS  v.  TRASK,  81  Me.  127,  16  Atl.  413. 

2  L.  R.  A.  534,  MARSHALL  v.  FARMERS  &  M.  SAV.  BANK,  85  Va.  676,  17 

Am.   St.  Rep.  84,  8  S.  E.  586. 
Personal  liability  of  bank  or  corporation  officer. 

Cited  in  Prescott  v.  Haugliey,  65  Fed.  658,  holding  national  bank  directors 
individually  liable  for  damages  caused  by  false  and  fraudulent  representations; 
Toledo  Sav.  Bank  v.  Johnston,  94  Iowa,  217,  62  X.  W.  748,  holding  director  re- 
sponsible to  bank  for  gross  neglect  or  inattention  to  official  duties;  Union  Xat. 
Bank  v.  Hill,  148  Mo.  391,  71  Am.  St.  Rep.  615,  49  S.  W.  1012,  holding  direct- 
ors chargeable  with  knowledge  of  illegal  loans;  Campbell  v.  Watson,  62  X.  J. 
Eq.  440,  50  Atl.  120,  holding  bank  directors  failing  to  observe  by-law  requir- 
ing quarterly  examination  of  banks,  relying  upon  cashier's  statements  and  state 
•examination,  liable  to  receiver  for  cashier's  peculations;  Briggs  v.  Spanieling, 
141  U.  S.  171,  35  L.  ed.  677,  11  Sup.  Ct.  Rep.  924  (dissenting  opinion),  ma- 
jority holding  defendant  directors  not  responsible  for  wrongful  acts  of  other 
-directors  or  agents  under  the  evidence;  Kemp  v.  Xational  Bank,  48  C.  C.  A.  220, 


327  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  540 

109   Fed.  54,  referring  to,  but  not  deciding,  question  of  individual  liability  of 
bank  officer  to  depositor  for  fraud. 

Cited  in  footnote  to  Boyd  v.  Mutual  Fire  Asso.  61  L.  R.  A.  918,  which  sus- 
tains right  of  directors  to  benefit  of  limitations  in  action  for  misfeasance  or  mal- 
feasance in  office. 

Cited  in  notes  (4  L.  R.  A.  747)  on  equitable  suits  against  directors;  (9  L.  R. 
A.  652)  on  purchase  of  shares  of  stock  of  corporation  by  another  corporation, 
as  to  liability  of  directors  of  corporation;  (13  L.  R.  A.  371)  on  banking  a  le- 
gitimate object  of  copartnership  as  to  relation  between  bank  officials  and  de- 
positors; (55  L.  R.  A.  756,  759,  760,  769)  on  liability  of  directors  of  corpora- 
tion to  corporation;  (3  L.R.A.(N.S.)  440)  on  liability  of  directors  for  failure  to 
close  insolvent  bank;  (48  Am.  St.  Rep.  928)  on  personal  liability  of  corporate 
officers  to  third  persons;  (54  Am.  St.  Rep.  732,  733)  on  liability  of  bank  directors 
for  loss  of  deposit. 
Rig'ht  to  sue  bank. 

Cited  in  Union  Nat.  Bank  v.  Hill,  148  Mo.  394,  71  Am.  St.  Rep.  615,  49  S.  W. 
1012,  holding  bank  directors'  liable  to  shareholders  and  creditors  for  negligence 
•on  failure  of  assignee  to  sue. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
acceptance  of  check  necessary  to  give  right  of  action  against  bank. 
Degree  of  care  required  of  bank  officer. 

Cited  in  Warren  v.  Robison,  19  Utah,  318,  75  Am.  St.  Rep.  734,  57  Pac.  287, 
holding  bank  directors  not  excusable  for  ignorance,  inexperience,  or  honesty  of 
intentions;  Warren  v.  Robison,  19  Utah,  308,  75  Am.  St.  Rep.  734,  57  Pac.  287, 
holding  bank  directors  must  exercise  ordinary  care,  skill,  and  diligence;  Stone 
v.  Rottman,  183  Mo.  581,  82  S.  W.  76,  holding  directors  of  bank  and  members  of 
its  discount  and  examining  committees  liable  to  receiver  for  gross  negligence  in 
management  of  bank's  business;  Elliott  v.  Farmers'  Bank,  61  W.  Va  654,  57  S. 
E.  242,  holding  directors  postponed  until  claims  of  other  creditors  are  satisfied 
where  directors  were  grossly  negligent  and  inattentive  to  business  of  bank; 
State  v.  Quackenbush,  98  Minn.  524,  108  N.  W.  953,  holding  banker  presumed  to 
know  whether  bank  solvent  or  insolvent. 

Cited  in  notes  (15  L.R.A.  306)  on  care  required  of  bank  directors;  (38  Am.  St. 
Rep.  774)  on  care  required  of  bankers  acting  as  agents  or  bailees. 

Disapproved  in  Sweet  v.  Montpelier  Sav.  Bank  &  T.  Co.  69  Kan.  650,  77  Pac 
538,  holding  officers  of  corporation  not  personally  liable  to  persons  dealing  with 
corporation  for  mere  acts  of  negligence. 
Bank  directors  as  trustee*  for  depositors. 

Cited  in  Foster  v.  Bank  of  Abingdon,  88  Fed.  607,  holding  directors  of  a  bank 
trustees  for  depositors;  Hinkley  v.  Sac  Oil  &  Pipe  Line  Co.  132  Iowa,  403,  119 
Am.  St.  Rep.  564,  107  N.  W.  629,  holding  directors  trustees  of  stockholders  and 
buyers  of  stock  are  entitled  to  assume  others  buying  pay  same  price  as  they. 

2  L.  R.  A.  540,  GREEN  &  B.   RIVER  NAV.  CO.  v.   CHESAPEAKE,  O.  &  S. 

W.  R.  CO.  88  Ky.  1,  2  Inters.  Com.  Rep.  515,  10  S.  W.  6. 
Damages  incidental   to  repair  of  bridge. 

Cited  in  Rhea  v.  Newport  News  &  M.  Valley  R.  Co.  50  Fed.  23,  holding  rail- 
road company,  in  legally  rebuilding  bridge  for  benefit  of  public,  not  liable  for 
obstructing  navigation;  East  Montpelier  v.  Wheelock,  70  Vt.  398,  41  Atl.  43:>, 
liokling  municipality,,  in  making  required  repairs  to  bridge,  not  liable  for  neces- 
sarily lowering  ponded  water. 

Cited  in  notes  (59  L.  R.  A.  39,  72)  on  right  to  obstruct  or  destroy  rights  of 
navigation;  (8  L.  R.  A.  787)  on  damn um  alsque  injuria. 


2  L.R.A.  540]  L.  R.  A.  CASES  AS  AUTHORITIES.  329 

Navigable  waters. 

Cited  in  footnote  to  Olive  v.  State,  4  L.  R.  A.  33,  which  holds  non-navigable 
river  not  made  public  highway  by  statute  declaring  it  to  be  sjch  without  provid- 
ing for  compensation  to  riparian  owners. 

Cited  in  notes  (8  L.  R.  A.  92)  on  title  to  soil  below  ordinary  high-water  mark; 
(5  L.R.A.  62)  on  riparian  rights  of  owners  bounding  on  navigable  streams;  (67 
L.R.A.  835)  on  right  to  improve  navigability  of  stream 

2  L.  R.  A.  544,  CHISM  v.  SCHIPPER,  51  X.  J.  L.  1,  14  Am.  St.  Rep.  668,  1$ 

Atl.  316. 
When  approval  necessary  in  tmilding;  contract. 

Cited  in  Curley  v.  Hudson  County,  66  X.  J.  L.  408,  49  Atl.  471,  holding  claim 
for  work  on  building  public  road  not  allowable  without  engineer's  approval ;  Bernz 
v.  Marcus  Sayre  Co.  52  N.  J.  Eq.  282.  30  Atl.  21,  holding  architect's  certificate  or 
its  waiver  necessary  to  recover  on  building  contract;  Welch  v.  Hubschmitt  Bldg.  & 
Woodworking  Co.  61  N.  J.  L.  64,  38  Atl.  824,  holding  certificate  of  architect  not 
final,  except  as  to  matters  specified  in  contract;  Crane  Elevator  Co.  v.  Clark,  26 
C.  C.  A.  102,  53  U.  S.  App.  257,  80  Fed.  707,  holding  jury  should  decide  whether 
work  had  been  accepted  when  architect  expressed  satisfaction  with  it;  Bowe  v. 
United  States,  42  Fed.  780,  holding  discretion  of  umpire  as  to  whether  workman- 
ship and  materials  were  satisfactory  should  be  exercised  reasonably;  Bradner  v. 
Roffsell,  57  N.  J.  L.  416,  31  Atl.  387,  Reversing  57  N.  J.  L.  33,  29  Atl.  317,  holding 
refusal  of  architect  to  give  certificate  not  fraudulent  where  there  was  deviation 
from  contract;  Atchison  v.  Rackliffe,  78  Kan.  330,  96  Pac.  477,  holding  wrongful 
refusal  to  measure  by  engineer  as  per  contract  not  to  affect  manner  of  payment; 
Hebert  v.  Dewey,  191  Mass.  411,  77  X.  E.  822,  on  recovery  on  contract  without 
certificate  of  engineer  where  wilfully  and  fraudulently  withheld;  Fairmont  Plumb- 
ing Co.  v.  Carr,  54  W.  Va.  278,  46  S.  E.  458,  holding  that  reason  for  rejection  of 
work  done  cannot  be  ignored  or  questioned  if  in  good  faith,  where  rejector 
has  the  absolute  right  to  reject;  Cope  v.  Beaumont,  104  C.  C.  A.  202.  181  Fed 
758,  holding  that  contractor  can  recover  on  proof  of  substantial  performance 
and  fraudulent  refusal  of  certificate  by  architect. 

Cited  in  footnote  to  Arnold  v.  Bournique,  20  L.  R.  A.  493,  which  holds  con- 
tractor entitled  to  payment  on  delivery  of  architect's  certificate  handed  back 
without  presentation  to  owner. 

Cited  in  notes   (17  L.R.A.  211)   on  contract,  promise  to  give  full  satisfaction: 
subject  to  judgment  of  promisee;    (1  L.R.A. (N.S.)   1051)   on  effect  of  decision  of 
architect,  engineer,  or  umpire  in  case  of  fraud  or  mistake. 
Construction  of  contracts. 

Cited  in  Schroeder  v.  Griggs,  80  Kan.  362,  102  Pac.  469.  on  viewing  a  contract 
as  a  whole  in  construing  it  to  reach  the  obvious  intent  of  the  parties. 
Performance  dependent  on  will  of  third  person. 

Cited  in  Wolff  v.  Meyer,  75  X.  J  L.  184,  66  Atl.  959.  on  liability  for  non- 
performance  of  contracts  impossible  of  performance  because  dependent  on  will 
of  another. 

2  L.  R.  A.  549,  CHICAGO  MUT.  LIFE  INDEMNITY  ASSO.  v.  HUNT,  127  111. 

257,  20  X.  E.  55. 
Validity   of  statute   empowering  chancery  to   dissolve   corporation. 

Followed  in  Cullom  v.  Traders'  Ins.  Co.  89  C.  C.  A.  295,  163  Fed.  47.  holding 
Illinois  statute  providing  for  involuntary  dissolution  of  insurance  company  o» 
petition  of  state  auditor  constitutional 


L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  549 

Chancery    i  :i  i  i-c!  i,-t  h,n    to   vt  ind   up  or  dixaolve  corporation. 

Cited  in  Wheeler  v.  Pullman  Iron  &  Steel  Co.  143  111.  205,  17  L.R.A.  820, 
32  X.  E.  420,  holding  court  of  chancery  without  jurisdiction  to  dissolve  cor' 
poration  for  cause  other  than  specified  in  statute;  J.  W  Butler  Paper  Co.  v. 
Robbins,  151  111.  621,  38  X.  E.  153,  holding  jurisdiction  waived  in  suit  brought 
l>y  creditor  of  corporation;  Parmelee  v.  Price,  208  111.  558,  70  N.  E.  725,  hold- 
ing chancellor  may  entertain  suit  and  determine  questions  of  fact  without  jury 
in  simple  creditor's  proceeding  against  stockholder  for  unpaid  subscription;  Chica- 
go Steel  Works  v.  Illinois  Steel  Co.  153  111.  17,  38  N.  E.  1033,  holding  order  ap- 
pointing receiver  of  corporation  not  necessarily  a  dissolution  of  franchise;  Bixler 
v.  Summerfield,  195  111.  152,  G2  X.  E.  849,  holding  allegation  that  a  "finishing" 
company  used  its  funds  to  purchase  real  estate  ultra  vires,  and  praying  for  its 
dissolution,  states  a  cause  of  action  for  equity;  Robinson  v.  Raulston,  33  111.  App. 
167,  holding  attaching  stockholder  not  affected  by  bill  to  dissolve  corporation  and 
appoint  receiver;  Hunt  v  Le  Grand  Roller  Skating  Rink  Co.  143  111.  122,  32  N.  E. 
525,  holding  attorney  general  cannot  file  bill  in  equity  to  dissolve  corporation 
for  acts  subjecting  it  to  forfeiture  of  charter;  Cobe  v.  Guyer,  237  111.  521,  86  N. 
E.  1071,  on  statutory  power  of  courts  of  chancery  to  decree  dissolution  of  cor- 
poration by  declaring  a  forfeiture  of  franchise;  State  ex  rel.  Donnell  v.  Foster, 
225  Mo.  193,  125  S.  W.  184,  holding  decree  of  dissolution  of  corporation  not 
authorized  by  statute  and.  hence  void;  Ashton  v.  Penfield,  233  Mo.  444,  135  S. 
W.  938  (dissenting  opinion),  on  jurisdiction  of  equity  to  dissolve  corporation. 

Cited  in  footnote  to  Republic  L.  Ins.  Co.  v.  Swigert,  12  L.  R.  A.  328,  which 
holds  corporation,  in  suit  to  wind  it  up,  entitled  to  object  to  order  directing 
suits  for  unpaid  stock  subscriptions. 

Cited  in  notes  (8  L.R.A.  858)  on  dissolution  of  corporation;   (68  Am.  St.  Rep. 
871)  on  jurisdiction  of  equity  to  dissolve  voluntary  unincorporated  associations 
Character  and   validity  of  contract  with  benefit  society. 

Cited  in  Calkins  v.  Bump,  120  Mich.  343,  79  N.  W.  491,  holding  endowment 
insurance  in  excess  of  power  of  fraternal  society;  Lehman  v.  Clark,  174  111. 
284,  43  L.  R.  A.  651,  51  N.  E.  222,  holding  receiver  of  benefit  society  cannot  re- 
cover assessment  made  by  him  under  order  of  court,  for  contract  is  unilateral; 
LT'nion  St.  Jean  Baptiste  v.  Ostiguy,  25  R.  I.  481,  64  L.  R.  A.  159,  56  Atl.  681, 
holding  mutual  benefit  society  cannot  sue  ex-member  for  dues,  for  nonpayment 
of  which  he  was  expelled;  McCartney  v.  Supreme  Tent,  K.  M.  132  111.  App.  20, 
holding  fraternal  benefit  society  unable  to  agree  to  pay  a  member  a  specific  sum 
on  his  arrival  at  a  specified  age  in  the  absence  of  granted  authority  or  necessary 
implication;  National  Protective  Legion  v.  O'Brien,  102  Minn.  20,  112  N.  W.  1050, 
holding  payment  of  "maturity  dividends"  to  members  not  disabled,  in  excess  of 
power  of  fraternal  society. 

Cited  in  footnotes  to  Re  Globe  Mut.  Ben.  Asso.  17  L.  R.  A.  547,  which  holds 
receiving  infants  as  members  of  assessment  insurance  company  unlawful;  Shaw 
v.  Davis,  23  L.  R.  A.  294,  which  denies  minority  stockholder's  right  to  enjoin 
legal  contract. 

Cited  in  notes  (9  L.  R.  A.  275)  on  restraining  exercise  of  corporate  franchise; 
action  by  one  in  behalf  of  others;  (46  L.  R.  A.  620)  on  charter  restrictions  on 
eligibility  to  become  a  shareholder  in  a  corporation;  (57  L.  R.  A.  504)  on  in- 
surance on  the  life  of  a  minor;  (23  L.  R.  A.  436)  on  liability  of  member  of 
benefit  society  to  action  for  assessment;  (7  L.  R.  A.  189)  on  mutual  benefit 
certificate;  transfer  of;  (4  L.  R.  A.  382)  on  benefit  association;  enlarged 
powers  conferred  by  statute. 

Distinguished  in  Re  Globe  Mut.  Ben.  Asso.  63  Hun,  264,  17  N.  Y.  Supp.  852, 
holding  co-operative  insurance  company  cannot  insure  infants. 


2  L.R.A.  549]  L.  R.  A.  CASES  AS  AUTHORITIES.  330 

Tontine  fund. 

Distinguished  in  Wheeler  v.  Mutual  Reserve  Fund  Life  Asso.  102  111.  App.  57, 
holding   foreign   corporation   not   required   to   conform   to   provisions   of   statute 
relating  to  tontine  accumulations. 
Penalty  for  failure  to  pay  dues. 

Cited  in  Betts  v.  Connecticut  Indemnity  Asso.  71  Conn.  753,  44  Atl.  65,  hold- 
ing assets  of  benefit  association  in  proceeding  to  dissolve  would  not  include  as- 
sessments not  already  levied;  Gray  v.  Daly.  40  App.  Div.  42,  57  X.  Y.  Supp. 
527,  holding  resigned  member,  not  in  arrears,  not  liable  for  assessment  by  re- 
ceiver of  dissolved  accident  association;  Re  Ontario  Insurance  Act,  31  Ont.  Rep. 
162,  holding  member  of  benevolent  society  not  personal  liable  for  dues  in  absence 
of  contract  to  that  effect. 
Nature  of  assessments. 

Cited  in  L'Union  St.  Jean  Baptiste  v.  Ostigny,  25  R.  I.  481,  64  L.R.A.  158,  105- 
Am   St.  Rep.  899,  56  Atl.  681,  1  A.  &  E.  Ann.  Cas.  401,  holding  assessments  in  a 
beneficial  association  not  debts  recoverable  by  action,  where  payable  in  advance 
with  provision  for  expulsion  for  default. 
Officer  of  in  MI  IKS  I  benefit  society  as  trustee. 

Cited  in  Williamson  v.  Warfield,  P.  H.  Co.  136  111.  App.  180,  holding  the  man- 
agers of  a  mutual  benefit  insurance  company  trustees  of  funds  in  their  hands 
for  benefit  of  members. 
Rights  of  infant  on  avoidance  of  contract. 

Cited  in  Wuller  v.  Chuse  Grocery  Co.  241  111.  400,  28  L.R.A.(X.S.)  130,  132  Am. 
St.  Rep.  216,  89  N.  E  796,  16  A.  &  E.  Ann.  Gas.  522,  on  recovery  of  money  by 
infant  on  rescission  of  contract. 

2  L.  R.  A.  556,  LEE  v.  STURGES,  46  Ohio  St.  153,  19  N.  E.  560. 
What  should  be  included  in  taxable  list. 

Cited  in  Christian  Moerlein  Brewing  Co.  v.  Hagerty,  8  Ohio  C.  C.  335.  holding 
act  valid  providing  that  return  by  manufacturer  for  taxation  shall  be  based  'on 
average  monthly  value  of  material,  determined  on  last  day  of  month;  Ohio  Farm- 
ers' Ins.  Co.  v.  Hard,  8  Ohio  N.  P.  47,  10  Ohio  S.  &  C.  P.  Dec.  491,  holding  that 
tax  returns  of  assets  at  sixty  per  cent,  of  their  value  are  false;  Scott's  Sons- 
v.  Raine,  25  Ohio  L.  J.  158,  11  Ohio  Dec.  Reprint,  180,  on  construction  of  tax 
laws. 
Corporate  stock  or  corporation's  property. 

Cited  in  Lander  v.  Burke,  65  Ohio  St.  541,  63  N.  E.  69,  holding  "capital  stock" 
includes  personal  property  which  corporation  must  return  for  taxation;  Ratter- 
man  v.  Ingalls,  23  Ohio  L.  J.  260,  10  Ohio  Dec.  Reprint,  750;  Ratterman  v.  Phipps, 
27  Ohio  L.  J.  120,  11  Ohio  Dec.  Reprint,  474,  as  deciding  that  stock  in  railroad 
corporation  is  taxable;  Scott  v.  Smith,  2  Ohio  N.  P.  X.  S.  623,  15  Ohio  S  &  C. 
P.  Dec.  595,  holding  shares  of  stock  taxable  as  separate  from  the  capital  of  the 
corporation;  Schmuck  v.  Grume  &  S.  Mfg.  Co.  7  Ohio  X.  P.  X.  S.  29,  19  Ohio  S. 
&  (  .  P.  Dec.  824,  on  shares  of  stock  as  property. 

Cited  in  note  (58  L.R.A.  579,  613)   on  taxation  of  capital  stock  of  corporations 
in   the  United  States. 
Foreign  ownership. 

Cited  in  Hubbard  v.  Brush,  61  Ohio  St.  262,  55  X'.  E.  829,  holding  foreign  cor- 
poration with  business  and  property  wholly  in  state  must  list  capital  stock  for 
taxation;  Western  U.  Teleg.  Co.  v.  Poe,  61  Fed.  455,  holding  that  telegraph 
plant  in  one  state  has  added  value  for  taxation  because  it  is  part  of  a  large  sys- 


331  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  556 

tern;  Western  U.  Teleg.  Co.  v.  Poe,  61  Fed.  461,  holding  act  providing  that  value 
of  shares  of  capital  stock  should  be  used  in  determining  value  of  property  of 
corporation,  invalid;  Bacon  v.  State  Tax  Comrs.  126  Mich.  27,  60  L.R  A.  333, 
86  Am.  St.  Rep.  524,  85  X.  W.  307,  holding  stock  in  foreign  corporation,  owned 
by  resident,  subject  to  taxation;  Lander  v.  Burke,  65  Ohio  St.  542,  63  N.  E.  69, 
holding  shares  of  resident  stockholder  in  domestic  corporation  with  property  out 
of  state  not  exempt  from  taxation;  Western  Assur.  Co.  v.  Halliday,  61  C.  C.  A. 
275,  126  Fed.  261,  holding  municipal  bonds,  deposited  as  security  by  foreign  insur- 
ance company  with  superintendent  of  insurance,  taxable  by  state;  Judy  v.  Beck- 
\vith,  137  Iowa,  30,  15  L.R.A.(X.S.)  147,  114  N.  W.  565,  15  A.  &  E.  Ann.  Cas.  890, 
holding  shares  in  foreign  corporation  held  in  a  state  taxable  therein  as  person- 
alty: Scottish  Union  &  Xat,  Ins.  Co.  v.  Bowland,  196  U.  S.  627,  49  L.  ed.  626, 
25  Sup.  Ct.  Rep.  345,  holding  municipal  bonds  deposited  in  state  by  foreign  cor- 
poration as  security  to  domestic  policy  holders,  to  be  part  of  capital  stock  of 
such  corporation  and  taxable  as  personal  property  where  deposited. 
— —  Property  not  returned  or  previously  omitted. 

Cited  in  Adams  v.  Kuykendall,  83  Miss.  595,  35  So.  830,  holding  back  taxes 
may  be  assessed  upon  property  theretofore  omitted  from  tax  rolls;  State  Board 
v.  Holliday,  150  Ind.  250,  42  L.R.A.  838,  49  X.  E.  14,  holding  prior  omission  no 
excuse  for  further  omission  from  list;  Lee  v.  Dawson,  8  Ohio  C  C.  371,  4  Ohio 
C.  D.  442,  holding  appearance  before  auditor  of  owner's  agent  sufficient  to  au- 
thorize additions  to  return;  Gager  v.  Prout,  48  Ohio  St.  107,  26  N.  E.  1013,  hold- 
ing act  providing  for  additions  for  false  return  was  valid  imposing  no  new  bur- 
dens; Patton  v.  Commercial  Bank,  7  Ohio  X.  P.  407,  10  Ohio  S.  &  C.  P.  Dec. 
334,  on  liability  for  tax  on  all  property  every  year  whether  listed  for  taxation  or 
not. 
Shares  of  stock. 

Cited  in  notes   (58  L.R.A.  613)   on  practice  and  procedure  of  assessors  in  taxa- 
tion of  capital  stock  of  corporations  in  United  States;    (58  L.R. A.  579)  on  taxa- 
tion of  capital  stock  of  stockholders  in  foreign  corporations. 
Tax  exemptions. 

Cited  in  Watterson  v.  Halliday,  77  Ohio  St.  169,  82  N.  E.  962,  11  A.  &  E.  Ann. 
Cas.  1096,  denying  right  of  exemption  on  parish  house  used  by  priests. 

Distinguished  in  Kenyon  College  v.  Schnebly,  12  Ohio  C.  C.  N.  S.  4,  31  Ohio 
C.  C.  153,  on  construction  of  exemption  from  taxation  in  case  of  charitable  or 
educational   institutions. 
Equal  protection  and  privileges. 

Cited  in  Humphreys  v.  State,  70  Ohio  St.  87,  70  X.  E.  957,  holding  statute 
subjecting   legacies   to   foreign   charitable   institutions   to   inheritance   tax,   from 
which  domestic  charities  are  exempt,  constitutional. 
Consolidation  of  railroads. 

Cited  in  Ashley  v.  Ryan,  49  Ohio  St.  529,  31  N.  E.  721,  holding  act  requir- 
ing fee  upon  filing  articles  of  agreement  of  consolidation  of  railway.-;  not  invalid 
because  consolidation  included  companies  out  of  state;  Robison  v.  Cleveland  City 
R.  Co.  5  Ohio  X.  P.  301,  holding  consolidation  of  railway  companies  abolished 
them  in  creation  of  new  corporation. 

Cited  in  note  (89  Am.  St.  Rep.  650,  653)  on  effect  of  consolidation  of  railroad 
corporations. 
Effect  of  construction  of  tax  laws  l»y  officers. 

Cited  in  Probasco  v.  Raine,  10  Ohio  Dec  Reprint,  414,  holding  that  construction 
placed  upon  tax  laws  by  executive  department  of*  the  state  is  not  controlling 
upon  court  in  construing  sucli  laws. 


•2  L.R.A.  564]  L.  R.  A.  CASES  AS  AUTHORITIES.  332 

2  L.  R.  A.  564,  STATE  ex  rel.  LEESE  v.  CHICAGO,  B.  &  Q.  R.  CO.  25  Neb. 
156,  41  N.  VV.  125. 

Followed  without  discussion  in  State  ex  rel.  Leese  v.  Missouri  P.  R.   Co.  25 
Neb.   165,  41  N.  W.  127;   State  ex  rel.  Leese  v.  Chicago,  St.  P.  M.  &  0.  R.  Co. 
25  Neb.  166,  41  N.  W.  128. 
Eminent  domain. 

Cited  in  Trester  v.  Missouri  P.  R.  Co.  33  Neb.  178,  49  N.  YV.  1110,  holding 
new  railway  company  by  consolidation  of  companies  organized  in  different 
states,  can  acquire  property  by  eminent  domain;  Koenig  v.  Chicago,  B.  &  Q.  R. 
Co.  27  Neb.  704,  43  N.  W.  423,  holding  foreign  railway  company  cannot  acquire 
real  estate  until  it  becomes  a  domestic  corporation ;  Southern  Illinois  &  M. 
Bridge  Co.  v.  Stone,  174  Mo.  32,  63  L.  R.  A.  311,  73  S.  VV.  453,  holding  foreign 
bridge  corporation  cannot  exercise  power  of  eminent  domain  without  authority 
from  legislature. 

Cited  in  footnote  to  Southern  Illinois  &  M.  Bridge  Co.  v.  Stone,  63  L.R.A.  301, 
which  holds  that  foreign  bridge  company  may  condemn  property  necessary  for 
approaches  and  terminal  facilities. 

Cited  in  note   (24  L.  R.  A.  328)   on  right  of  foreign  corporations  to  own  real 
•estate. 
•Consolidation   of  corporations. 

Cited  in  Walters  v.  Chicago,  B.  &  Q.  R.  Co.  104  Fed.  379,  holding  foreign 
-corporation  formed  by  consolidation  of  railways,  and  becoming  a  domestic  cor- 
poration, was  determined  as  to  citizenship  by  that  of  its  constituents;  Chevra 
Bnai  Israel  v.  Chevra  Bikur  Cholin,  24  Misc.  190,  52  N.  Y.  Supp.  712,  holding 
religious  corporations  cannot  consolidate  without  legislative  authority. 

Cited  in  notes  (3  L.  R.  A.  435,  436)  on  corporations;  consolidation  and  its 
•effect;  (8  L.  R.  A.  500)  on  consolidation  of  corporations  creating  a  trust  is 
ultra  vires;  (15  L.  R.  A.  85)  on  consolidated  interstate  corporation  as  domestic 
corporation  of  one  of  the  states;  (52  L.  R.  A.  391)  on  right  of  corporations  to 
•consolidate;  (52  L.  R.  A.  377)  on  interpretation,  application,  and  construction 
•of  statutes  restrictive  of  the  right  of  corporations  to  consolidate;  (8  L.  R.  A. 
239)  on  foreign  corporations,  law  of  comity;  (89  Am.  St.  Rep.  651,  652)  on 
•effect  of  consolidation  of  corporations. 

^  L.  R.  A.  568,  HUSTON  v.  BYBEE,  17  Or.   140,  20  Pac.  51. 
Prescription  and  adverse  user. 

Cited  in  Wimer  v.  Simmons,  27  Or.  19,  50  Am.  St.  Rep.  685,  39  Pac.  6,  hold- 
ing use  of  water  under  license  or  permission  not  prescription  or  adverse  user; 
•Carson  v.  Hayes,  39  Or.  107,  65  Pac.  814,  holding  invasion  of  right  of  owner 
•of  water  necessary  to  create  prescriptive  right  to  use;  Union  Mill  &  Min.  Co. 
v.  Dangberg,  81  Fed.  91,  holding  adverse  use  of  water  must  be  open,  notorious, 
peaceable,  continuous,  and  under  claim  or  color  of  right;  Ann  Arbor  Fruit  & 
Vinegar  Co.  v.  Ann  Arbor  R.  Co.  136  Mich.  607,  66  L.R  A.  435,  99  N.  W.  869, 
holding  a  user  by  necessity  does  not  ripen  into  an  adverse  right  by  use  after 
termination  of  necessity  until  expiration  of  required  period  after  notice  of  such 
use  has  come  to  servient  owners;  Anderson  v.  Bassman,  140  Fed.  25,  on  adverse 
uninterrupted  use  of  stream  for  statutory  period  to  acquire  vested  right;  Morris 
v.  Bean,  146  Fed.  434,  holding  burden  of  proving  prescriptive  right  not  satisfied 
.by  claimant  of  the  right  where  testimony  does  not  show  length  of  time  of  adverse 
user  nor  where  it  started;  Ispn  v.  Sturgill,  57  Or.  121,  109  Pac.  579,  holding -that 
use  of  water  by  adverse  claimant,  which  may  result  in  title,  is  not  initiated  until 
it  is  infringement  of  use  of  owner  of  right. 


333  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  57  T 

Cited  in  notes  (11  Am.  St.  Rep.  342)  on  adverse  possession;    (93  Am.  St.  Rep. 
730)  on  prescriptive  title  to  water;   (10  Eng.  Rul.  Cas.  225)  on  acquisition  by  ri- 
parian owner  of  easement  in  artificial  stream  as  against  its  originator. 
Vested   rights  under  parol  license. 

Cited  in  Ewing  v.  Rhea,  37  Or.  586,  52  L.  R.  A.  142,  82  Am.  St.  Rep.  783,  62 
Pac.  790;  La  very  v.  Arnold,  36  Or.  86,  57  Pac.  906;  Bowman  v.  Bowman,  35 
Or.  281,  57  Pac.  546, — holding  parol  license  irrevocable  after  licensee  has  ex- 
pended money  or  made  valuable  improvements  on  faith  thereof. 

Cited  in  note  (49  L.  R.  A.  511)  on  revocability  of  license  to  maintain  a  bur- 
den on  land  after  the  licensee  has  incurred  expense  in  creating  the  burden. 

2  L.  R.  A.  571,  LOPEZ  v.  UNITED  STATES,  24  Ct.  Cl.  84; 
Transfer  of  claims  :iu:>  i  n-t   United  States. 

Cited  in  Howes  v.  United  States,  24  Ct.  Cl.  182,  5  L.  R.  A.  67,  holding  trans- 
fer of  specific  claim  to  receiver  by  decree  of  state  court  invalid. 
Power  of  attorney  to  collect  moneys  dne  front  United  States. 

Cited  in  Hitchcock  v.  United  States,  27  Ct.  Cl.  204,  holding  power  given  to- 
collect  last  instalment  due  contractor  for  erection  of  public  buildings  void. 

2  L.  R.  A.  576,  DONAHUE  v.  STATE,  112  N.  Y.  142,  19  N.  E.  419. 
Presumption   of  grant. 

Followed  in  Fulton  Light,  Heat  &  P.  Co.  v.  New  York,  200  N.  Y.  422,  37  L.R.A. 
(X.S.)  322,  94  N  E.  199,  holding  that,  as  against  state,  no  title  to  river  can  be 
obtained  through  private  use  or  occupancy,  whether  adverse  or  by  permission, 
however  long  continued,  or  by  prescriptive  right. 

Cited  in  Deshong  v.  New  York,  176  N.  Y.  484,  68  N.  E.  880,  holding  grant  of 
permanent  right  to  construct  sidewalk  vault  will  not  be  presumed. 
Owner's  duty  to  mere  licensee  to  prevent  injury. 

Cited  in  Cusick  v.  Adams,  115  N.  Y.  59,  60,  61,  12  Am.  St.  Rep.  772,  21  N.  E. 
673,  holding  owner  not  liable  to  bare  licensee  for  injury  through  mere  defect 
in  premises;  Wells  v.  Brooklyn  Heights  R.  Co.  34  Misc.  46,  68  N.  Y.  Supp.  305, 
holding  owner  liable  for  neglect  to  use  reasonable  vigilance  to  prevent  killing 
licensee;  Carroll  v.  State,  73  Misc.  521,  133  N.  Y.  Supp.  274,  holding  state  liable 
for  injury  to  occupant  of  adjoining  premises  from  falling  into  uncovered  waste 
weir  on  state  land. 

Cited  in  notes  (42  L.R.A.  69)  on  claims  constituting  valid  demands  against 
a  state;  (36  L.R.A.(N.S.)  499)  on  liability  to  trespasser  or  bare  licensee  from. 
active  negligence. 

2  L.  R.  A.  577,  AYARS'S  APPEAL,  122  Pa.  266,  16  Atl.  356. 
Title  to  act. 

Cited  in  note   (8  L.R.A.  858)   on  title  to  statute. 
Special  legislation. 

Cited  in  Larimer  &  L.  Street  R.  Co.  v.  Larimer  Street  R.  Co.  137  Pa.  546; 
20  Atl.  570,  holding  corporation  without  right  to  occupy  street  cannot  ques- 
tion validity  of  street  franchise  of  rival;  Clark's  Estate,  195  Pa.  525,  48  L.  R. 
A.  594,  46  Atl.  127,  Reversing  10  Pa.  Super.  Ct.  436,  holding  act  authorizing- 
trustees  to  include  cost  of  bond  in  expenses  of  administration  of  trust  valid; 
Com.  ex  rel.  Darte  v.  Reichard,  5  Kulp,  542,  8  Pa.  Co.  Ct.  563,  holding  section 
of  act  constituting  each  city  of  the  third  class  a  single  school  district  unconsti- 
tutional; Fraim  v.  Lancaster  County,  11  Lane.  L.  Rev.  158,  holding  act  con- 
cerning constable's  fees,  excluding  certain  counties,  local;  Com.  v.  Lacka  wanna* 


2  L.RA.  577]  L.  R.  A.  CASES  AS  AUTHORITIES.  334 

County,  7  Pa.  Co.  Ct.  174,  holding  act  providing  for  non-uniform  method  of  col- 
lecting taxes  unconstitutional ;  Miller  v.  Cunningham,  7  Pa.  Co.  Ct.  502,  hold- 
in  act  making  taxes  liens  on  real  estate,  except  in  cities  of  the  first,  second, 
and  fourth  classes,  unconstitutional;  Re  Reading's  Constables,  8  Pa.  Co.  Ct. 
102,  holding  act  providing  for  election  of  constables  in  cities  of  second  and 
third  classes  constitutional;  School  District  v.  School  District,  22  Pa.  Co.  Ct. 
236,  holding  act  relating  to  education  of  nonresident  soldiers'  children  only, 
unconstitutional;  Com.  v.  Clark,  14  Pa.  Super.  Ct.  440,  holding  act  prohibiting 
corporations  from  discharging  employees  because  of  membership  in  lawful  or- 
ganizations unconstitutional;  Baker  v.  McKee,  6  Pa.  Dist.  600,  20  Pa.  Co.  Ct. 
11,  holding  sections  of  act  requiring  voucher  for  school  district  of  city  to  be 
countersigned  by  comptroller  unconstitutional;  Com.  v.  Casey,  231  Pa.  179,  34 
L.R.A. (N.S.)  770,  80  Atl.  78,  holding  void,  act  limiting  hours  of  labor  on  munici- 
pal improvement  contracts;  Com.  v.  Plymouth  Coal  Co.  232  Pa.  147,  81  Atl.  148, 
15  Luzerne  Leg.  Rep.  95,  holding  valid,  anthracite  mining  act  requiring  adjoining 
coal  owners  to  leave  pillar  of  coal  along  division  line ;  Nowak  v.  Filerty,  12 
Northamp.  Co.  Rep.  364,  20  Pa.  Dist.  R.  329;  Meilniczek  v.  Nesuruk,  19  Pa.  Dist. 
R.  742, — holding  valid,  act  for  attachment  of  wages  for  boarding  or  lodging; 
Larimer  v.  L.  Street  R.  Co.  21  Pittsb.  L.  J.  N.  S.  96,  on  validity  of  ordinance 
granting  franchise  to  street  railway;  Engel's  Appeal,  21  Pittsb.  L.  J.  N.  S.  219, 
holding  void,  act  for  improvement  of  streets  in  second  class  cities;  Reading  v. 
Miller,  37  Pa.  Co.  Ct.  620,  45  Super.  Ct.  32,  holding  valid,  milk  inspection  ordi- 
nance of  city  of  third  class. 

Cited  in  footnotes  to  Stockton  v.  Powell,  15  L.  R.  A.  42,  which  holds  courts 
without   power   to   inquire   as   to   notice   of   application   to   legislature   for   local 
legislation;    Milwaukee   County  v.   Isenring,   53   L.   R.   A.   635,   which  holds   act 
regulating  sheriff's  fees  for  particular  county  local. 
—  Object    ami   scope    of   classification. 

Referred  to  Scranton  City  v.  Ansley,  34  Pa.  Super.  Ct.  136,  as  containing  a 
clear  warning  from  the  Supreme  Court  that  classification  of  cities  otherwise 
than  according  to  provisions  of  the  act  of  1874  would  not  be  sustained. 

Cited  in  Re  Wyoming  Street,  137  Pa.  503,  21  Atl.  74;  Safe  Deposit  &  T.  Co. 
v.  Fricke,  152  Pa.  240,  25  Atl.  530;  Philadelphia  v.  Westminster  Cemetery  Co. 
162  Pa.  108.  29  Atl.  349;  Van  Loon  v.  Engle,  171  Pa.  165,  33  Atl.  77;  Re  Ruan 
Street,  132  Pa.  275,  7  L.  R.  A.  196,  19  Atl.  219,  —  holding  classification  should  be 
for  municipal  purposes  only;  Com.  v.  Gilligan,  195  Pa.  510.  46  Atl.  124,  Re- 
versing 8  Kulp,  568,  holding  public  convenience  proper  reason  for  classifica- 
tion, in  upholding  act  classifying  school  districts;  Com.  v.  Moir,  199  Pa.  561, 
53  L.  R.  A.  848,  85  Am.  St.  Rep.  801,  49  Atl.  351  (dissenting  opinion),  ma- 
jority holding  steady  tendency  of  court  has  been  to  broaden  applicability  of 
earlier  rules  of  classification;  Darcy  v.  San  Jose",  104  Cal.  646,  38  Pac.  500, 
and  Edmonds  v.  Herbrandson,  2  N.  D.  273,  274,  14  L.  R.  A.  727,  50  N.  W.  970, 
holding  classification  must  not  be  arbitrary;  Allentown  v.  Gross,  132  Pa.  323, 
19  Atl.  269,  holding  rule  as  to  classification  inapplicable  to  question  as  to  right 
to  license  under  constitutional  act;  Beltz  v.  Pittsburg,  26  Pa.  Super.  Ct.  68, 
on  right  of  legislature  to  classify  cities  based  on  imperative  necessity  and  local 
peculiarity  and  also  citing  annotation  on  that  point;  Pittsburg's  Petition,  32  Pa. 
Super.  Ct.  221,  holding  legislative  classification  not  to  be  local  or  special  legisla- 
tion where  it  applies  to  all  subjects  similarly  situated,  imperatively  demanding 
legislation,  springing  from  manifest  peculiarities;  Com.  ex  rel.  Lynch  v.  County 
Comrs.  14  Pa.  Dist.  R.  685,  on  a  review  of  authorities  in  classification  of  cities; 
Ashworth  v.  Pittsburg  R.  Co.  231  Pa.  542,  80  Atl.  981,  holding  void,  street  rail- 
way rate  law  for  second  class  cities;  State  ex  rel.  Board  of  Education  v.  Brown, 


335  L-  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  577 

97  Minn.  406,  5  L.R.A.(X.S.)  333,  106  N.  W.  477,  on  the  purpose  of  constitutional 
prohibition  of  special  legislation  as  throwing  light  on  the  construction  to  be 
given  to  such  prohibitory  amendments. 

Cited  in  footnote  to  Longview  v.  Crawfordsville,  68  L.R  A.  622,  which  holds  void 
classification  of  cities  for  purpose  of  legislation  so  as  to  make  particular  law 
conferring  power  to  annex  territory  applicable  to  those  having  population  be- 
tween six  and  seven  thousand. 

Cited  in  nofc«s  (7  L.  R.  A.  193,  195)  on  constitutional  statutory  classifica- 
tion of  cities. 

—  Acts    declared    constitutional. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Miller,  100  Mo.  449,  13  S.  W.  677,  up- 
holding act  fixing  number,  and  prescribing  qualifications  and  manner  of  elec- 
tion, of  school  directors  in  cities  of  over  300,000  inhabitants;  Philadelphia  & 
R.  Coal  &  I.  Co.'s  Petition,  200  Pa.  356,  49  Atl.  797,  upholding  classification  of 
townships  into  two  classes  according  to  population;  Com.  ex  rel.  Jones  v.  Black- 
ley,  198  Pa.  374,  52  L.  R.  A.  368,  47  Atl.  1104,  Affirming  30  Pittsb.  L.  J.  N.  S. 
376,  upholding  act  classifying  townships  according  to  density  of  population; 
Com.  use  of  Titusville  v.  Clark,  195  Pa.  639,  57  L.  R.  A.  350,  86  Am.  St.  Rep. 
694,  46  Atl.  286,  Affirming  21  Pa.  Co.  Ct.  500,  10  Pa.  Super.  Ct.  512,  upholding 
ordinance  of  city  of  third  class  classifying  wholesale  and  retail  merchants  for 
license  tax;  Bennett  v.  Norton,  171  Pa.  238,  32  Atl.  1112,  Affirming  7  Kulp, 
460,  holding  for  some  purposes  law  for  coextensive  county  and  city,  and  a  dif- 
ferent law  for  other  counties,  constitutional ;  Com.  v.  Winkelman,  12  Pa.  Super. 
Ct.  517,  holding  act  making  dying  declarations  competent  in  prosecutions  for 
abortion  constitutional.  Com.  v.  Hanley,  15  Pa.  Super.  Ct.  280,  holding  un- 
dertakers' license  act  applicable  to  cities  of  first,  second,  and  third  classes  con- 
stitutional; Shenk  v.  MeKennan,  11  Pa.  Super.  Ct.  88,  Affirming  28  Pittsb.  L. 
J.  N.  S.  464,  11  Pa.  Super.  Ct.  86,  holding  building  act  relating  to  cities  of 
the  second  class  constitutional;  Richardson  v.  Mehler,  111  Ky.  426,  63  S.  W. 
957,  holding  statute  providing  what  shall  be  prima  facie  evidence  in  actions 
by  cities  of  first  class  to  enforce  liens  for  cost  of  street  improvements  valid ;  Com. 
v.  Middleton,  210  Pa.  588,  60  Atl.  297,  holding  an  act  providing  that  cities  of 
third  class  each  constitute  a  school  district  and  otherwise  regulating  school  mat- 
ters to  be  accepted  by  each  district  to  be  binding  thereon  is  constitutional;  Cen- 
tral Dist.  Printing  &  Teleg.  Co.  v.  Freedom,  20  Pa.  Dist.  R.  247,  58  Pittsb.  L.  J. 
310,  holding  telegraph  and  telephone  act  valid. 

Cited  in  footnote  to  Com.  ex  rel.  Jones  v.  Blackley,  52  L.  R.  A.  367,  which 
sustains  classification  of  townships  by  density  of  population. 

—  Acts  declared  unconstitutional. 

Referred  to  in  Howell  v.  Morrisville,  212  Pa.  353,  61  Atl  932,  as  having  declared 
unconstitutionality  of  an  act  dividing  cities  into  classes,  because  of  which  other 
statutes  were  later  enacted. 

Cited  in  Meadville  v.  Dickson,  129  Pa.  7,  8,  18  Atl.  513,  holding  no  part  of 
specified  acts  sustainable,  because  interwoven  with  unnecessary  and  excessive 
classification;  Pittsburgh's  Petition,  138  Pa.  435,  27  W.  N.  C.  468,  21  Atl.  761, 
holding  classification  of  cities  with  reference  to  collections  of  municipal  liens 
unconstitutional;  Perkins  v.  Philadelphia,  156  Pa.  564,  27  Atl.  356,  holding 
classification  intended  to  support  legislation  that  could  only  apply  to  one  city 
unconstitutional;  Costello  v.  Wyoming,  49  Ohio  St.  209,  30  N.  E.  613,  holding 
act  authorizing  villages  in  any  county  containing  city  of  first  grade  to  construct 
sidewalks  unconstitutional;  Wilkes-Barre  v.  Ricketts,  5  Kulp,  430,  and  Wilkes- 
Barre  v.  Felts,  134  Pa.  531,  19  Atl.  676.  holding  classification  act  of  May  24, 


2  L.R.A.  577]  L.  R.  A.  CASES  AS  AUTHORITIES.  33$ 

1887,  wholly  unconstitutional;  Bradford  City  v.  Pennsylvania  &  N.  Y.  Teleg.  & 
Teleph.  Co.  26  Pa.  Co.  Ct.  335,  holding  act  relating  to  telegraph  wires,  exempting 
cities  of  the  first  class,  unconstitutional;  Com.  ex  rel.  United  Presby.  Women's 
Asso.  v.  Heckert,  28  Pittsb.  L.  J.  N.  S.  297,  7  Pa.  Dist.  R.  187,  holding  act 
regulating  cemeteries  and  hospitals  in  cities  of  second  class  unconstitutional ; 
Re  Coal  Twp.  23  Pa.  Co.  Ct.  591,  declaring  act  classifying  townships  of  county 
into  two  classes,  for  purposes  of  government,  unconstitutional;  Groves  v. 
County  Court,  42  W.  Va.  594,  595,  26  S.  E.  460,  declaring  unconstitutional,  act 
general  in  terms,  but  which  could  never  apply  except  to  a  single  place;  Vulcanite 
Portland  Cement  Co.  v.  John  W.  Allison  Co.  220  Pa.  387,  69  Atl.  855,  holding 
an  act  preferring  a  class  of  creditors,,  in  the  absence  of  imperative  necessity,  to- 
be  special  legislation  and  prohibited;  Wood  v.  Philadelphia,  46  Pa.  Super.  Ct.  579, 
affirming  17  Pa.  Dist.  R.  1026,  holding  an  act  exempting  veterans  and  their 
families  from  complying  with  rules  of  qualification  for  municipal  employment  in 
cities  of  first  class,  special  legislation  in  violation  of  constitution;  Davis  v.  Beers, 
12  Pa.  Dist.  R  437,  holding  an  act  enabling  sales  by  counties  of  lands  purchased 
at  tax  sales  was  unconstitutional  in  that  by  its  terms  it  excluded  cities  of  the 
first  class  from  its  operation;  York  Hospital  &  Dispensary  Asso.  v.  York  Count  v, 
12  Pa.  Dist.  R.  540,  holding  an  act  providing  that  hospital  in  cities  of  not  less^ 
than  twenty  thousand  inhabitants  shall  receive  from  the  county  a  designated 
amount  in  support  of  poor  patients  was  void  as  a  local  act  in  violation  of  con- 
stitution. 

Cited  in  footnotes  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes,  not  applying  to  all  parts  of  state,  unconstitutional; 
State  v.  Elizabeth,  23  L.  R.  A.  525,  which  holds  invalid,  special  statute  dis- 
criminating between  municipalities  already  having,  and  those  not  having,  race- 
course; Sutton  v.  State  33  L.  R.  A.  589,  which  holds  classification  of  coun- 
ties according  to  previous  census,  without  respect  to  actual  population,  void. 
Enrolled  bills. 

Cited  in  note   (40  L.R.A.  (N.S.)   37)   on  conclusiveness  of  enrolled  bill. 
Consequences   of   unconstitutional   acts    and   remedial    legislation. 

Cited  in  Berghaus  v.  Harrisburg,  122  Pa.  291,  16  Atl.  365,  and  Shoemaker  v. 
Harrisburg,  122  Pa.  288,  16  Atl.  366,  holding  municipal  lien  depending  solely 
on  unconstitutional  classification  act  invalid;  Chester  v.  Cunliffe,  7  Del.  Co.. 
Rep.  98;  Chester  v.  Bullock,  187  Pa.  551,  41  Atl.  452;  Chester  v.  Black  132 
Pa.  570,  6  L.  R.  A.  804,  19  Atl.  276;  Chester  v.  Pennell,  169  Pa.  303,  32  Atl. 
408, — upholding  assessment  under  unconstitutional  act  cured  by  subsequent  leg- 
islation; Com.  v.  Smoulter,  126  Pa.  138,  17  Atl.  532,  holding  Wilkes-Barre  city 
of  third  class  because  of  unconstitutionality  of  classifications  of  1876  and  1877 ; 
Barber  Asphalt  Paving  Co.  v.  Harrisburg,  29  L.  R.  A.  402,  12  C.  C.  A.  101,. 
28  U.  S.  App.  108,  64  Fed.  284,  holding  city  liable  for  street  paving,  although 
contractor  agreed  to  accept  payment  in  property  assessments  only,  afterwards 
declared  invalid;  Gable  v.  Altoona,  200  Pa.  20,  49  Atl.  367,  holding  city  liable 
on  bonds  payable  out  of  property  assessments  afterwards  declared  illegal;  Com. 
v.  La  Bar,  5  Lack.  Legal  News,  230,  7  Northampton  Co.  Rep.  86;  Dunbar  v. 
Williamsport,  9  Pa.  Co.  Ct.  451;  Melick  v.  Williamsport,  35  W.  N.  C.  39, — 
holding  acts  of  council  under  unconstitutional  act  of  May  24,  1887,  validated 
by  acts  of  May  13  and  23,  1889;  Devers  v.  York  City,  150  Pa.  211,  24  Atl.  668, 
holding  city  assessor  under  unconstitutional  act  of  May  24,  1887,  entitled  to 
salary  under  curative  statute  of  May  13,  1889;  Lancaster  County  v.  Stormfeltz, 
8  Lane.  L.  Rev.  195,  holding  tax  lien  under  act  not  applicable  to  whole  state 
invalid;  Easton  v.  Drake,  9  Kulp,  324,  6  Northampton  Co.  Rep.  122,  holding: 


337  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  586 

provisions  in  act  as  to  registration  of  tax  lien  merely  directory;  Trach  v.  Mc- 
Cauley,  6  Northampton  Co.  Rep.  195,  holding  unconstitutional ity  of  act  of  1876 
not  alfecting  rights  of  holder  of  bond  issued  in  1886;  Ellis  v.  Kies,  1  Dauphin 
Co.  Rep.  202,  holding  lien  act  applicable  to  cities  of  fourth  class  nullity,  there 
never  having  been  cities  of  fourth  class;  Melan  v.  McXulty,  6  Kulp,  524,  hold- 
ing acts  of  May  17,  1887,  and  May  24,  1887,  relating  to  tax  liens,  inapplicable 
to  case  because  declared  unconstitutional. 
Act  partly  good  and.  partly  bad. 

Cited  in  Re  Morrellville,  7  Pa.  Super.  Ct.  543,  as  to  validity  of  part  of  stat- 
ute though  other  part  void. 
Acts   passed   prior  to  constitutional   prohibition. 

Cited  in  Hulsizer  v.  Northampton  County,  6  Northampton  Co.  Rep.  136,  hold- 
ing act  passed  before  constitutional  prohibition  protected  from  its  operation. 
School  districts  as  independent  of  city  government*. 

Cited  in  First  School  Dist.  Bd.  of  Pub.  Edu.  v.  Ramsley,  209  Pa.  54,  58  Atl. 
122,  holding  an  act  providing  a  department  to  purchase  all  supplies  used  in 
conducting  business  of  the  city  not  to  affect  the  power  of  school  boards  to  pur- 
chase school  supplies,  where  schools  have  no  necessary  connection  with  municipal 
legislation;  Com.  ex  rel.  Halferty  v.  Schmitz,  18  Pa.  Dist.  R  834,  39  Pittsb.  L.  J. 
N.  S.  33 ;  Rosenblit  v.  Philadelphia.  28  Pa.  Super.  Ct.  593, — on  school  districts  of 
the  public  school  system  as  not  having  any  connection  with  municipal  government 
or  control. 
Effect  on  officers  of  reorganization  of  city. 

Cited  in  Menefee  v.  Taubman,  159  Mo.  App.  323,  140  S.  W.  604,  holding  that 
on  reorganization  of  city  under  new  law.  officers  of  old  corporation  hold  their 
offices  until  officers  of  succeeding  corporation  are  elected  and  qualified. 

2  L.  R.  A.  586,  INSURANCE  CO.  OF  N.  A.  v.  FIDELITY  TITLE  &  T.  CO.  123 

Pa.  523,  10  Am.  St.  Rep.  546,  16  Atl.  791. 

Effect  of  discharge  of  person  liable  for  loss  on  insured's  right  of  action 
against   insurer. 

Cited  in  note   (29  L.R.A  (N.S.)   699,  701)   on  effect  of  discharge  of  person  pri- 
marily liable  for  loss,  or  of  contractual  .provision  giving  him  benefit  of  insur- 
ance, upon  insured's  right  of  action  against  insurer. 
Right  of  subrogation. 

Cited  in  Haslage  v.  Rieger,  37  Pittsb.  L.  J.  N.  S.  146,  holding  life  tenant,  pay- 
ing mortgage  by  himself  and  remainderman  to  secure  loan  to  latter,  entitled  to 
subrogation  and  assignment  of  mortgage. 

Cited  in  note  (12  Am.  St.  Rep.  506)   on  right  of  subrogation. 
Of  insurer  to  rights  of  insured. 

Cited  in  Fidelity  Title  &  T.  Co.  v.  People's  Natural  Gas  Co.  150  Pa.  14,  24 
Atl.  339,  holding  that  insurer  may  recover  loss  from  one  whose  negligence 
caused  fire,  notwithstanding  release  by  insured  of  all  claims  except  against 
insurers:  Packliam  v.  German  F.  Ins.  Co.  91  Md.  526,  50  L.  R.  A.  831,  80  Am. 
St.  Rep.  461,  46  Atl.  1066,  holding  that  destruction  of  remedy  of  subrogation 
against  wrongdoer  by  insured  relieves  insurer;  Stoughton  v.  Manufacturers' 
Natural  Gas  Co.  165  Pa.  433,  35  W.  N.  C.  521,  30  Atl.  1001,  holding  that  ver- 
dict against  one  causing  loss  presumptively  represents  entire  loss,  and  insurer 
entitled  under  statute  to  entire  amount  of  insurance  paid;  Phenix  Ins.  Co.  v. 
Pennsylvania  R.  Co.  134  Ind.  218,  20  L.  R.  A.  410,  33  N.  E.  970,  holding  insurer 
subrogated  to  rights  of  owner  against  one  causing  loss,  to  extent  of  loss  paid; 
Packham  v.  German  F.  Ins.  Co.  91  Md.  528,  50  L.  R.  A.  832,  80  Am.  St.  R«T. 
L.R.A.  Au.  Vol.  I.— 22. 


2  L.R.A.  586]  L.  R.  A.  CASES  AS  AUTHORITIES.  338 

461,   46  Atl.    1066,   holding  surety  cannot   demand   subrogation  before  discharg- 
ing liability. 

Cited  in  note  (44  Am.  St.  Rep.  737)  on  subrogation  of  insurer. 

Distinguished  in  Sims  v.  Mutual  F.  Ins.  Co.  101  Wis.  592,  77  N.  W.  908, 
holding  release  to  one  causing  fire,  of  all  claims  arising  from  loss,  releases  in- 
surance company;  Haldeman  v.  Dublin  Mut.  Ins.  &  Protective  Co.  32  Pa.  Co.  Ct. 
26,  16  Pa.  Dist.  R.  62,  holding  release  of  wrongdoer  causing  fire,  loss  covered  by 
insurance,  by  assured  defeats  right  of  insurance  company  to  subrogation,  express 
stipulation  for  subrogation  notwithstanding. 
Payment  of  debt  as  prerequisite. 

Cited  in  notes  (99  Am.  St.  Rep.  482)  on  payment  of  debt  as  prerequisite  of 
right  of  subrogation;  (2  L.R.A.(N.S.)  264)  on  obligation  as  equivalent  of  payment, 
for  purpose  of  subrogation. 

2  L.  R.  A.  587,  STATE  USE  OF  JANNEY  v.  HOUSEKEEPER,  70  Md.  162,  14 

Am.  St.  Rep.  340,  16  Atl.  382. 
Negligence ;   physicians  and  surgeons. 

Cited  in  Pettigrew  v.  Lewis,  46  Kan.  82,  83,  26  Pac.  458,  holding  plaintiff 
must  affirmatively  prove  lack  of  care  or  skill;  Miller  v.  Leib,  109  Md.  426,  72 
Atl.  466,  on  the  degree  of  care  due  from  physicians  and  surgeons,  to  patients; 
Champion  v.  Kieth,  17  Okla.  208,  87  Pac  845,  holding  physician  not  to  be  liable 
for  unsuccessful  termination  of  treatment  where  reasonable  degree  of  care  and 
skill  are  used;  Giberson  v.  Kinard,  25  Lane.  L.  Rev.  381;  Wohlert  v.  Seibert,  23 
Pa.  Super.  Ct.  218, — holding  physician  bound  to  exercise  such  skill  as  is  ordinarily 
possessed  and  used  by  physician  in  his  locality  taking  into  consideration  the 
advanced  state  of  the  profession  at  the  time;  Sweeney  v.  Erving.  35  App.  D.  C.  61, 
— L.R.A.  (N.S.) — ,  holding  same  rule  applicable  to  X-ray  operator. 

Cited  in  note   (93  Am    St.  Rep.  665,  669)   on  liability  of  physicians  and  sur- 
geons for  negligence  and  malpractice. 
Presumptions  and  burden  of  proof. 

Cited  in  Sheldon  v.  Wright,  80  Vt.  318,  67  Atl.  807,  on  legal  presumption 
against  negligence  in  malpractice  cases  and  affirmative  proof  by  assenting  party. 

Cited  in  notes    (11  L.  R.  A.  701)    on  physician's  liability  for  negligent  treat- 
ment and  want  of  skill;    (37  L.  R.  A.  832)   on  degree  of  care  and  skill  required 
from  physician  or  surgeon. 
Consent  to  operation. 

Cited  in  Pratt  v.  Davis,  118  111.  App.  167,  holding  consent  of  husband  not  nec- 
essary where  wife  in  sound  mind  consents  to  operation. 

Cited  in  note  (1  L.R.A.(N.S.)  441)  on  liability  for  performing  surgical  operation 
without  consent. 

2  L.  R.  A.  589,  HARMON  v.  LEHMAN,  85  Ala.  379,  5  So.   197. 
I  -iir>  :   loans  by  commission  merchants. 

Cited  in  Patillo  v.  Allen-West  Commission  Co.  47  C.  C.  A.  644,  108  Fed.  730, 
holding  whether  contract  to  pay  constructive  commissions  in  default  of  cotton 
delivered,  besides  interest  on  loan,  is  usurious,  question  for  jury;  Blackburn 
v.  Hayes,  59  Ark.  369,  27  S.  W.  240,  holding  constructive  commissions  on  cot- 
ton not  delivered,  besides  interest  on  loan,  not  usurious  device,  but  liquidated 
damages;  Gage  v.  J.  F.  Smyth  Mercantile  Co.  87  C.  C  A.  377,  160  Fed.  430, 
holding  usury  to  be  question  for  jury  where  interest  is  paid  on  borrowed  money 
and  in  addition  thereto  constructive  commissions  are  charged  the  borrower  by 
lender  supposedly  for  sale  of  goods  purchased  with  the  money;  Dorden  v.  Schuess- 


330  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  590 

ler,   154  Ala.  376,  382,  45  So.  130,  defining  usury  under  statute  as  the  taking 
of  more  for  the  use  of  money  than  the  law  allows. 
Stipulation  for  payment  of  attorneys'  fee*  on  foreclosure. 

Cited  in  Lehman  v.  Comer,  89  Ala.  583,  8  So.  241,  holding  stipulation  to  pay 
attorneys'  fees  and  other  expenses  in  collecting  sums  secured  by  mortgage  ex- 
tends to  fees  on  foreclosure;  Ginn  v.  New  England  Mortg.  Secur.  Co.  92  Ala 
138,  8  So.  388,  holding  stipulation  for  payment  of  attorneys'  fees  on  foreclosure 
does  not  render  mortgage  usurious;  Boyd  v.  Jones,  96  Ala.  309,  38  Am.  St.  Rep. 
100,  11  So.  405,  holding  stipulation  for  payment  of  attorneys'  fees  and  reasonable 
storage  not  illegal. 

2  L.  R.  A.  594,  BOTTS  v.  SIMPSONVILLE  &  B.  C.  TURNP.  CO.  88  Ky.  54, 

10  S.  W.   134. 
Consolidation  of  corporations. 

Cited  in  Cherva  Bnai  Israel  v.  Chevra  Bikur  Cholim,  24  Misc.  190,  52  X.  Y. 
Supp.  712,  holding  corporations  cannot  consolidate  without  legislative  authority; 
Spencer  v.  Seaboard  Air  Line  R.  Co.  137  X.  C.  120,  1  L.R.A.(X.S.)  620,  49  S.  E. 
96,  on  rights  of  stockholder  dissenting  from  consolidation  and  duties  of  con- 
solidating company  to  such  stockholder. 

Cited  in  notes  (8  L.  R.  A.  500)  on  consolidation  of  corporations,  creating 
trust;  (52  L.  R.  A.  391)  on  right  of  corporations  to  consolidate;  (52  L.  R.  A. 
381)  on  necessity  of  stockholder's  consent  to  corporate  consolidation;  (52  L.  R. 
A.  388)  on  rights  and  remedies  of  stockholders  upon  unauthorized  consolidation; 
(3  L.R.A.  437)  on  rights,  duties,  and  obligations  of  consolidated  corporations; 
•{1  L.R.A.(X.S-)  608)  on  condemnation  of  shares  of  minority  stockholders; 
(89  Am.  St  Rep.  621)  on  effect  of  consolidation  of  corporations. 
Right  of  stockholder  to  enjoin  illegal  act  of  directors. 

Cited  in  Forrester  v.  Boston  &  M.  Consol.  Copper  &  S.  Min.  Co.  21  Mont.  549, 
55  Pac.  229,  holding  minority  stockholders  may  enjoin  illegal  act  without  proof 
of  exhaustion  of  remedies  within  corporation. 

2  L.  R.  A.  596,  HARTMAN  v.  YOUNG,   17   Or.   150,   11  Am.  St.  Rep.  787,  20 

Pac.  17. 
Election  contest  not  retriable  on  appeal. 

Cited  in  Breding  v.  Williams,  33  Or.   393,  54  Pac.  206,  and  Hughes  v.  Hoi- 
man,  23  Or.  483,  32  Pac.  298,  holding  election  contests  tried  by  court  without 
jury  not  equity  cases  retriable  on  appeal. 
-Contested  election;  ballots  as  evidence. 

Cited  in  Dent  v.  Taylor  County,  45  W.  Va.  758,  32  S.  E.  250,  holding  ballots 
Tiighest  evidence  of  result  when  identity  as  cast  established;  Fenton  v.  Scott, 
17  Or.  190,  11  Am.  St.  Rep.  801,  20  Pac.  96,  holding  genuineness  of  ballots 
sought  to  be  recounted  question  of  fact  for  trial  court;  Davenport  v.  Olerich, 
104  Iowa.  196,  73  X.  W.  603,  holding  ballots  must  be  shown  safely  kept  by  proper 
custodian  before  allowed  in  evidence  against  official  return;  Farrell  v.  Larsen, 
26  Utah,  291,  73  Pac.  227,  holding  ballots  in  unsealed  packages,  kept  in  place 
to  which  unauthorized  persons  had  access,  inadmissible;  Pusch  v.  Brady,  5  Ariz. 
403,  53  Pac.  176,  holding  oral  evidence  inadmissible  in  election  contest  before  court 
to  show  that  ballots  marked  "rejected"  are  same  as  those  voted  on  election  the 
marked  ballots  not  being  those  voted;  Chatham  v.  Mansfield,  1  Cal.  App.  306,  82 
Pac.  343.  holding  ballots  received  by  county  clerk  in  envelopes  broken  open,  then 
placed  in  vault  accessible  to  public,  not  admissible  as  evidence  in  election  contest; 


2  L.R.A.  596]  L.  R.  A.  CASES  AS  AUTHORITIES.  340 

Edwards  v.  Logan,  114  Ky.  322,  70  S.  W.  852,  on  the  weight  of  exposed  ballots 
as  evidence  in  an  election  contest  before  a  court. 

Cited  in  notes   (30  L.R.A.  (N.S.)   G04)   on  scope  and  effect  of  election  law  pro- 
visions for  preserving  ballots;    (19  Am.  St.  Rep.  567)    on  evidence  to  show  for 
whom  ballot  was  cast. 
Burden  of  proof. 

Cited  in  Fenton  v  Scott,  17  Or.  191,  11  Am.  St.  Rep.  801,  20  Pac.  96,  holding 
burden  of  proof  on  one  seeking  to  overthrow  oilicial  count,  to  show  ballots  genu- 
ine. 

2  L.  R.  A.  601,  WESTERN  U.  TELEG.  CO.  v.  MUNFORD,  87  Tenn.  190,  10  Am. 

St.  Rep.  630,  10  S.  W.  318. 
Common  carrier;  connecting:  lines. 

Cited  in  Western  J.  Teleg.  Co.  v.  Stratemeier,  6  Ind.  App.  128,  32  N.  E.  871, 
and  Bird  v.  Southern  R.  Co.  99  Tenn.  722,  63  Am.  St.  Rep.  856,  42  S.  W.  45  lr 
holding  initial  carrier  may  limit  liability  to  own  line;  Post  v.  Southern -R.  Co. 
103  Tenn.  206,  55  L.  R.  A.  487,  52  S.  W.  301,  holding  carrier,  not  shipper,  has 
right  to  designate  route  of  through  shipments  at  special  rates:  Nashville,  C.  &  St. 
L.  R.  Co.  v.  Stone,  112  Tenn.  357,  105  Am.  St.  Rep.  955,  79  S.  W.  1031,  holding 
initial  carrier  may  limit  its  liability  to  its  own  line. 
Duty  to  deliver  telegrams. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Adams,  6  L.  R.  A.  844,  which. 
holds  ignorance  of  relations  between  parties  to  message  does  not  excuse  neglect 
in  delivering. 

Cited  in  notes   (15  L.R.A.  130)   on  duty  of  telegraph  company  to  find  person 
addressed;    (14  Am.  St.  Rep.  564)   on  rights,  duties,  and  liabilities  of  telegraph 
companies. 
Damag-es  for  failure  to  deliver  telegram. 

Cited  in  note  (10  Am.  St.  Rep.  779)  on  limitation  of  damages  in  action  against 
telegraph  company  to  natural  and  proximate  result  of  failure  to  deliver  message.. 

2  L.  R.  A.  603,  O'HARA  v.  STATE,  112  N.  Y.  146,  8  Am.  St.  Rep.  726,  19  N.  E._ 

659. 
Claims  against  state. 

Cited  in  People  v.  Corner,  59  Hun,  302,  12  N.  Y.  Supp.  936,  holding  in- 
action by  state,  defendant  not  entitled  to  set  up  counterclaim,  since  state  can 
be  prosecuted  only  by  its  consent;  American  Bank  Note  Co.  v.  State,  64  App.  Div. 
227,  71  N.  Y.  Supp.  1049,  holding  act  conferring  jurisdiction  upon  court  of 
claims  to  audit  claim  virtually  ratifies  unauthorized  contract;  Quayle  v.  State, 
192  N.  Y.  51,  84  N.  E.  583,  on  recognition  by  state  of  claims  against  it  as  a  basis 
of  action;  Flower  v.  State,  65  Misc.  148,  121  N.  Y.  Supp.  96,  holding  court  of 
claims  without  jurisdiction  to  hear  claim  for  taxes  paid  under  an  unconstitutional 
law;  People  ex  rel.  Swift  v.  Luce,  204  N.  Y.  485,  97  N  E.  850,  on  claims  against 
state  not  enforceable  until  recognized  by  legislature. 

Cited  in  notes    ( 42  L.  R.  A.   38 )    on  what  claims,  arising  on  contracts,  con- 
stitute valid  demands  against  state;    (42  L.  R.  A.  56,  57)   on  validity  of  claims 
against   state   on   contracts   on   public   buildings   and   improvements. 
As  affected  by  statnte  of  limitations. 

Cited  in  Parmenter  v.  State,  135  N.  Y.  163,  31  N.  E.  1035,  holding  claim 
against  state  not  barred  by  lapse  of  time  during  which  no  tribunal  existed  in 
which  it  could  be  prosecuted;  Cayuga  County  v.  State,  153  N.  Y.  292,  47  N.  E.  - 


341  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  600 

288,   raising,  without  deciding,  question  whether  doctrine  that  statute  of  limi- 
tations runs  against  claim  from  date  of  ratification  by  legislature,  is  applicable. 

Cited  in  notes   (42  L.R.A.  40)   on  validity  of  claims  against  state  affected  by 
statute  of  limitations;   (16  Eng.  Rul.  Cas.  297)  on  effect  of  running  of  statute  of 
limitations. 
Constitutional  prohibition  of  allowance  of  claims  by  legislature. 

Cited  in  Cayuga  County  v.  State,  153  N.  Y.  291,  47  N.  E.  288,  holding  act  giv- 
ing authority  to  board  of  claims  to  hear  and  adjust  claim  not  allowance  thereof 
"by  legislature;  Wheeler  v.  State,  97  App.  Div.  280,  90  X.  Y.  Supp.  18,  holding  an 
act  constitutional  conferring  jurisdiction  on  court  of  claims  to  hear  claim  of  pur- 
chaser of  land  from  state  and  make  an  award  though  there  was  no  warranty  of 
title  by  state;  Lehigh  Valley  R.  Co.  v  Canal  Board,  204  N.  Y.  475,  97  X.  E. 
D64,  holding  valid,  assumption  by  state  of  expense  of  rebuilding  railroad  bridges 
over  streams  canalized  for  barge  canal. 

Distinguished  in  Roberts  v.  State,  30  App.  Div.  Ill,  51  N.  Y.  Supp.  691, 
holding  legislature  cannot  authorize  allowance  of  claim  for  wrongful  imprison- 
ment, thereby  invalidating  unreversed  conviction;  Re  Greene,  166  N.  Y.  494,  60 
N.  E.  183,  Affirming  55  App.  Div.  481,  67  N.  Y.  Supp.  291,  holding  act  virtually 
reversing  judgment  on  merits,  granting  new  trial,  and  authorizing  tax  levy, 
unconstitutional. 
Extent  of  exemption. 

Cited  in  Coxe  v.  State,   144  N.  Y.  410,   39  N.   E.   400,  holding  exemption  of 
existing  claims  from  constitutional   prohibition  against  allowing  barred  claims 
cannot  apply  to  subsequent  claim. 
Legislative  ratification  of  an   unauthorized   act. 

Cited  in  Leavenworth  v.  Leavenworth  City  &  Ft.  L.  Water  Co.  69  Kan.  93,  76 
Pac.  451,  on  power  of  legislature  to  authorize  any  act  performed  for  benefit  of 
state  to  which  it  had  original  authority  to  legislate  and  provide  for;  Kirby  v. 
New  York,  68  Misc.  635,  325  N.  Y.  Supp.  742,  holding  employment  of  special 
counsel  by  attorney-general  ratified  by  appropriation  of  money  to  pay  him;  Car- 
roll v.  New  York,  68  Misc.  43,  124  N.  Y.  Supp.  888,  holding  that  legislature  by 
subsequently  appropriating  money  for  expenses  of  attorney-general  ratifies  em- 
ployment of  stenographer  continuing  duties  after  employer's  term. 

2  L.  R.  A.  606  PROTESTANT  EPISCOPAL  CHURCH  v.  ANAMOSA,  76  Iowa, 

538,  41  N.  W.  313. 
Exercise  of  municipal   power  to  change  street  grade. 

Cited  in  McManu*  v.  Hornaday,  99  Iowa,  511,  68  N.  W.  812,  holding  power 
conferred  on  city  to  change  street  grade  must  be  exercised  in  manner  pre- 
scribed; Richardson  v.  Webster  City,  111  Iowa,  429,  82  N.  W.  920;  Paine  v. 
Lettsville,  103  Iowa,  483,  72  X.  W.  693;  Ulanden  v.  Fort  Dodge,  102  Iowa,  444. 
71  N.  W.  411, — holding  municipal  corporation  not  exercising  power  to  change 
street  grade  in  manner  prescribed  by  statute  liable  for  damages  occasioned 
thereby;  Eckert  v.  Walnut,  117  Iowa,  630,  91  N.  W.  929,  holding  municipality 
changing  grade  of  street  before  passing  ordinance  establishing  it  liable  for  dam- 
ages to  abutting  owner;  Caldwell  v.  Nashua,  122  Iowa,  181,  97  N.  W.  1000, 
holding  city  reducing  sidewalk  to  level  of  street  without  adopting  ordinance 
establishing  grade  liable  to  abutter. 

Cited  in  notes  (9  LR.A.  210)  on  municipality,  when  liable  for  neglect  of 
officers  or  agents;  (29  Am.  St.  Rep.  764)  on  municipal  liability  for  injuries  by 
grading  streets. 

Distinguished  in  Cooper  v.  Cedar  Rapids,  112  Iowa,  370,  83  X.  W.  1050,  hold- 


2  L.R.A.  606]  L.  R.  A.  CASES  AS  AUTHORITIES.  342 

ing  law  requiring  ordinance  to  authorize  construction  of  sewer  does  not  apply 
to  construction  of  temporary  gutter;  Reilly  v.  Ft.  Dodge,  118  Iowa,  640,  92  N. 
W.  887,  denying  liability  to  abutting  owner  of  city  filling  street  to  established 
grade  before  passing  resolution  ordering  the  work;  Wilber  v.  Ft.  Dodge,  120 
Iowa,  557,  95  N.  W.  186,  denying  liability  of  city  bringing  street  to  grade  with- 
out adopting  resolution  ordering  work  done,  to  abutter  not  alleging  or  proving 
special  damage  from  such  failure. 

2  L.  R.  A.  608,  MCCARTHY  v.  BOSTON  &  L.  R.  co.  143  Mass.  550,  20  N.  E. 

182. 
Circumstantial  evidence  of  intent. 

Cited  in  O'Brien  v.  Cunard  S.  S.  Co.  154  Mass.  273,  13  L.  R.  A.  331,  28  N. 
E.  266,  holding  consent  of  passenger  to  vaccination  determinable  only  by  overt 
acts;  Norton  v.  Brookline,  181  Mass.  364,  63  N.  E.  930,  holding  employee's 
consent  to  temporary  stoppage  of  pay  is  presumed  by  continuance  in  office  after 
notice;  Hobbs  v.  Massasoit  Whip  Co.  158  Mass.  197,  33  N.  E.  495,  holding  re- 
tention of  skins  sent  in  accordance  with  standing  offer,  for  an  unreasonable 
time,  amounts  to  acceptance. 
Emancipation  or  adoption  of  child. 

Cited  in  Nugent  v.  Powell,  4  Wyo.  200,  20  L.  R.  A.  205,  63  Am.  St.  Rep.  17, 
33  Pac.  23,  holding  mother  only  necessary  party  to  adoption  proceedings  where 
father  deserted  family  in  destitute  condition;  Zongker  v.  People's  Union  Mer- 
cantile Co.  110  Mo.  App.  390,  86  S.  W.  486,  holding  that  acquiescence  by  parent 
in  an  action  in  behalf  of  minor  son  to  recover  damages  coupled  with  evidence  of 
emancipation  in  the  action  is  an  implied  emancipation;  Swift  &  Co.  v.  Johnson,  1 
L.R.A.(N.S.)  1168,  71  C.  C.  A.  619,  138  Fed  873,  holding  wilful  abandonment  of 
child  by  parent  for  period  of  nine  years  implies  an  emancipation. 

2  L.  R.  A.  609,  PEOPLE  ex  rel.  HART  v.  McELROY,  72  Mich.  446,  40  N.  W. 

750. 
Presumption  of  validity  of  statute. 

Cited  in  People  ex  rel.  Atty.  Gen.  v.  Burch,  84  Mich.  413,  47  N.  W.  765,  hold- 
ing mistake  in  journal  as  to  nature  of  vote  taken  in  senate  corrected  by  erraia 
does  not  invalidate  bill;  Detroit  v.  Detroit,  91  Mich.  81,  16  L.  R.  A.  63.  51  N. 
W.  787,  holding  record  of  passage  of  bill  as  printed  in  official  bound  journal 
amending  mistake  in  current  issue  presumptively  authorized;  Ritchie  v. 
Richards,  14  Utah,  371,  47  Pac.  670,  holding  mere  silence  of  journals  as  to  com- 
pliance with  mandatory  requirement  of  Constitution  insufficient  to  overcome 
presumption  of  validity,  where  no  record  required;  State  ex  rel.  Hensley  v.  Plas- 
ters, 74  Neb.  665,  3  L.R.A.(N.S.)  894,  105  N.  W.  1092,  13  A.  &  E.  Ann.  Cas.  154 
(dissenting  opinion),  on  the  presumption  of  validity  of  statute. 

Cited  in  footnote  to  Norman  v.  Kentucky  B.  of  Managers.  18  L.  R.  A.  55o_ 
which  holds  presumption  that  statute  constitutionally  enacted  not  conclusive. 

Cited   in   note    (23   L.   R.   A.    344)    on   collusiveness   of   general    expressions 
in  enrolled  bill   as  to  fact  of  passage. 
Passage  of  act. 

Cited  in  Detroit  v.  Chapin,  108  Mich.  143,  37  L.  R.  A.  398,  66  N.  W.  587r 
holding  bill  passed  by  legislature  prior  to  last  five  days  of  session  and  ap- 
proved by  governor  within  ten  days,  but  not  until  after  adjournment,  valid. 

Cited  in  notes  (11  L.R.A.  491)  on  passage  of  bill  through  legislature;  (67 
L.R.A.  967)  on  construction  of  constitutional  limitations  as  to  time  for  intro- 
duction of  bills  in  legislature;  (47  Am.  St.  Rep.  822)  on  proof  of  enactment  of 
statute;  (40  L.R.A. (N.S.)  7,  13,  35,  37,  38)  on  collusiveness  of  enrolled  bill. 


343  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  609 

Journals  as  evidence  of  proceeding*  of  legislature. 

Cited  in  Auditor  General  v.  Menominee  County,  89  Mich.  579,  51  N.  W.  483, 
holding  affidavits  of  senators  entered  "present"  in  journal  incompetent,  though 
entered  in  journal,  to  rebut  prior  entry;  Sackrider  v.  Saginaw  County,  79  Mich. 
«6.  44  X.  W.  1G5,  holding  parol  evidence  of  representatives  as  to  contents  of 
bill,  inadmissible;  People  v.  Dettenthaler,  118  Mich.  599,  44  L.  R.  A.  166,  77 
X.  W.  450.  holding  parol  evidence  inadmissible  to  show  amendment  of  act  by 
supplying  omitted  enacting  clause  before  presenting  to  governor  for  approval; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  State,  28  Okla.  96,  40  L.R.A, (N.S.)  7,  113  Pac. 
921,  holding  journals  of  house  incompetent  to  show  that  act  did  not  pass  in 
form  signed  by  presiding  officers  and  approved  by  governor;  People  ex  rel. 
Kent  County  v.  Loomis,  135  Mich.  565,  98  X.  W.  262,  3  A.  &  E.  Ann.  Cas.  751, 
on  house  journals  as  evidence;  Ellis  v.  Boer,  150  Mich.  455,  114  N.  W.  239,  holding 
that  legislative  intent  must  be  gathered  from  act  itself  and  the  legislative 
journals. 

Cited  in  note    (11  L.  R.  A.  492 )    on  printed  journals  as  evidence. 
Judicial  cognizance  of  legislative  journals. 

Followed  in  Rode  v.  Phelps,  80  Mich.  609,  45  N.  W.  493,  holding  void  duly 
certified  law  containing  material  proviso  appearing  from  journals  to  have  been 
stricken  out  by  both  branches  of  legislature. 

Cited  in  State  v.  Wray,  109  Mo.  598,  19  S.  W.  86;  and  Ritchie  v.  Richards, 
14  Utah,  371,  47  Pac.  670,  holding  journals  admissible  to  determine  validity  of 
act  duly  authenticated  and  approved;  Union  Bank  v.  Oxford,  119  N.  C.  214.  34 
L.  R.  A.  489,  25  S.  E.  966,  holding  failure  of  journals  to  show  mandatory  re- 
quirement of  reading  and  vote  by  yea  and  nay  renders  certified  and  enrolled 
act,  void;  State  ex  rel.  Gregg  v.  Erickson,  39  Mont.  287,  102  Pac.  336,  holding 
court  will  not  go  beyond  enrolled  bill  and  house  journals  to  determine  the  va1;i- 
ity  of  an  act. 

Cited  in  note    (8  L.  R.  A.  326)    on  passage  of  bills  by  legislature. 
Title  of  statute. 

Cited  in  footnotes  to  Judson  v.  Bessemer,  4  L.  R.  A.  742,  which  holds  provi- 
sion authorizing  issue  of  municipal  bonds  within  title;  Wardle  v.  Townsend,  4 
L.  R.  A.  511,  which  holds  provision  for  winding  up  corporation  within  title; 
Thomas  v.  Wabash,  St.  L.  &  P.  R.  Co.  7  L.  R.  A.  145,  which  holds  provision 
limiting  rights  in  water  to  railroad  companies  owning  landings  not  within  title; 
State  v.  Snow,  11  L.  R.  A.  355,  which  holds  prohibition  of  article  intended  for 
use  as  lard,  containing  other  ingredients  than  swine's  flesh,  within  title; 
Winona  v.  School  Dist.  Xo.  82,  3  L.  R.  A.  46,  which  holds  mention  in  title  of  all 
other  acts  repealed  or  altered  unnecessary;  Millvale  v.  Evergreen  R.  Co.  7  L. 
R.  A.  369,  which  holds  act  chartering  freight  and  passenger  railway  suffi- 
ciently entitled  where  shows  purpose  to  charter  passenger  railway  only;  State 
v.  Burgdoerfer,  14  L.  R.  A.  846,  which  holds  regulation  of  "bookmaking" 
within  title  to  "prohibit"  same. 

Cited  in  notes   (8  L.R  A.  858)  on  construction  of  title  to  statute;   (19  Am.  St. 
Rep.  403)  on  title  as  bearing  on  construction  of  statutes. 
Amendments  after  fifty-day  limit. 

Followed  in  Caldwell  v.  Ward,  83  Mich.  18,  46  X.  W.  1024,  and  Davock  v. 
Moore,  105  Mich.  134,  28  L.  R.  A.  788,  63  N.  W.  424,  holding  germane  amend- 
ment of  bill  in  material  point  valid  after  expiration  of  fifty  days;  Toll  v. 
Jerome.  101  Mich.  471,  59  X*.  W.  816,  holding  bill  providing  by  title  for  vacation 
of  judicial  circuit  amendable  after  limit  by  provision  for  reorganization  of  cir- 
cuit; Detroit  v.  Schmid,  128  Mich.  384,  92  Am.  St.  Rep.  468,  87  X.  W.  383, 


2  L.R.A.  609]  L.  R.  A.  CASES  AS  AUTHORITIES.  344 

holding  substitution  of  bill  amending  another  section  of  city  charter  than  one 
originally  introduced  not  obnoxious  to  provision  against  introduction  of  bill 
after  fifty  days;  Brake  v.  Callison,  122  Fed.  724,  holding  call  of  senate  not 
necessary,  under  Florida  Constitution,  on  substitute  bill  sent  up  by  house. 

Distinguished  in  Atty.  Gen.  v.  Detroit  &  S.  PI.  Road  Co.  97  Mich.  592,  56 
N.  W.  943,  holding  substitution  of  bill  not  germane  to  the  object  expressed  in 
original  title  invalid;  Sackrider  v.  Saginavv  County,  79  Mich.  65,  44  N.  W.  165, 
holding  bill  providing  by  title  for  discontinuance  of  specific  road  not  amend- 
able by  substitution  of  provision  for  maintenance  of  other  roads. 

2  L.  R.  A.  614,  STRINGER  v.   FROST,   116   Ind.  477,  9  Am.   St.  Rep.  875,   19 

N.  E.  331. 
Care  requisite  In    use   of  street. 

Cited  in  Green  v.  Eden,  24  Ind.  App.  592,  56  N.  E.  240,  holding  pedestrian 
crossing  street  not  required  to  look  and  listen  for  ambulance  rapidly  driven 
without  gong;  Eaton  v.  Cripps,  94  Iowa,  181,  62  N.  W.  687,  holding  woman  pre- 
paring to  take  car  on  crowded  thoroughfare  not  negligent  in  failing  to  see 
rapidly  approaching  train;  Scofield  v.  Myers,  27  Ind.  App.  376,  60  N.  E.  1005, 
holding  party  driving  on  street  entitled  to  presume  that  train  rapidly  ap- 
proaching from  rear  is  under  control  and  in  competent  hands;  Henry  v.  Grand 
Ave.  R.  Co.  113  Mo.  536,  21  S.  W.  214,  holding  greater  care  requisite  when 
crossing  street  at  unusual  place;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Martin, 
157  Ind.  223,  61  N.  E.  229,  holding  engineer  entitled  to  presume  that  employees 
of  another  company,  using  common  tracks  in  union  station,  will  observe  usual 
signals;  Schwartz  v.  New  Orleans  &  C.  R.  Co.  110  La.  545,  34  So.  667,  holding 
person  standing  between  car  tracks  not  bound  to  anticipate  lateral  movement 
bringing  cars  passing  on  curve  close  together;  Indianapolis  Street  R.  Co.  v. 
Mavschke,  166  Ind.  495,  77  N.  E.  945,  holding  that  one  driving  on  street  railway 
track  may  suppose  that  due  care  will  be  used  by  persons  in  charge  of  car  approach- 
ing from  rear;  Robards  v.  Indianapolis  Street  R.  Co.  32  Ind.  App.  309,  67  N.  E. 
953  (dissenting  opinion),  on  same  point;  Indianapolis  Street  R.  Co.  v.  O'Donnell, 
35  Ind.  App  317,  73  N.  E.  163,  holding  plaintiff  driving  at  rate  of  three  miles  per 
hour  across  car  track  was  not  at  fault  when  struck  by  car  which  was  one  hundred 
feet  distant  when  he  attempted  to  cross  track;  Graham  v.  Evening  Press  Co.  135 
Mich.  303,  97  N.  W.  697,  holding  pedestrian  not  under  duty  to  keep  constant  look- 
out to  the  rear  when  crossing  street;  Garside  v.  New  York  Transp.  Co.  146  Fed. 
598,  holding  that  care  to  be  used  by  person  alighting  from  street  car  in  keeping 
lookout  is  to  be  controlled  by  attendant  circumstances;  Apperson  v.  Lazro,  44 
Ind.  App.  192,  87  N.  E.  97,  holding  that  fact  that  man  almost  blind  was  walking 
unattended  along  edge  of  road  does  not  constitute  negligence. 

Cited  in  footnote  to  State  v.  Lauer,  20  L.  R.  A.  61,  which  holds  it  contributory 
negligence  to  leave  surveyor's  transit  set  up  in  street. 

Cited  in  notes  (7  L.  R.  A.  678)  on  contributory  negligence  as  defense;  (11  L. 
R.  A.  35)  on  excessive  speed  in  streets;  (17  L.  R.  A.  124)  on  deviation  from  usual 
thoroughfare  as  negligence  in  pedestrian;  (69  LJR.A.  540)  on  duty  to  maintain 
lookout  along  highways  to  avoid  injury  to  sick,  infirm,  or  helpless  persons,  with 
whom  no  contract  relation  is  sustained;  (19  L.RA.(N.S.)  163)  on  duty  of  pedes- 
trian on  public  street  to  avoid  passing  teams;  (10  Am.  St.  Rep.  883)  on  negligence 
of  railway  company;  (48  Am.  St.  Rep.  376)  on  rights  by  travelers  in  road  and 
presumption  of  negligence  from  being  on  wrong  side. 

Distinguished  in  Evans  v.  Adams  Exp.  Co.  122  Ind.  366,  7  L.  R.  A.  680,  23  N. 
E.  1039,  holding  party  standing  still  in  conversation  in  street  not  entitled  to  re- 
cover for  injuries  inflicted  by  wagon  driven  inattentively. 


345  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  621 

—  Question   for  jury. 

Cited  in  Stallman  v.  Shea,  99  Minn.  426,  109  N.  W.  824,  holding  contributory 
negligence  a  question  for  jury  where  plaintiff  took  into  consideration  distance  of 
approaching  team  and  relied  on  fact  that  driver  would  see  her;  Morgan  v.  Pleshek 
J20  Wis.  309,  97  N.  W.  916,  on  contributory  negligence  and  negligence  in  use 
of  streets  as  a  question  for  jury. 
General  and  special  verdicts. 

Cited  in  note  (6  L.  R.  A.  574)  on  when  special  verdict  controls  general. 
Objections  and  exceptions. 

Cited  in  note  (8  L.  R.  A.  609)  on  insufficiency  of  general  exception. 
Liability  of  infant  for  tort. 

Cited  in  note  (57  L.  R.  A.  674)  on  general  liability  of  infant  for  torts. 

2  L.  R.  A.  615,  POWELL  v.  CAMPBELL,  20  Nev.  232,  19  Am.  St.  Rep.  350,  20 

Pac.  156. 
I. is  peiideiis. 

Cited  in  Wilkinson  v.  Elliott,  43  Kan.  594,  19  Am.  St.  Rep.  158,  23  Pac.  614, 
holding  Us  pendens  ineffectual  where  divorce  petition  file-marked  but  not  left  on 
file,  nor  issued  with  summons. 

Cited  in  notes  (4  L.R.A.  718)  on  lis  pendens  generally;  (24  Am.  St.  Rep.  373)  on 
purchaser  pendente  lite  as  a  bona  fide  purchaser;  (56  Am.  St.  Rep.  865)  on  law 
of  lis  pendens. 

Distinguished  in   Sun  Ins.   Co.  v.'  White,   123   Cal.  202,  55  Pac.  902,  holding 
bona  fide  mortgage  of  separate  property  by  husband  pending  divorce  suit  valid, 
where  no  intent  to  prevent  enforcement  of  decree. 
Jurisdiction    of   equity. 

Cited  in  Brandon  v.  West,  28  Nev.  507,  83  Pac.  327,  holding  equity  will  decree 
performance  of  contract  to  convey  right  to  take  land  based  on  oral  agreement 
with  defendant's  grantor  where  plaintiff  took  possession  and  paid  for  privilege. 

Cited  in  footnote  to  Ada  County  v.  Bullen  Bridge  Co.  36  L.  R.  A.  367,  which  de- 
nies right  to  maintain  equitable  action  to  cancel  county  warrants. 

Cited  in  note    (11   L.  R.  A.  69)    on  equity  jurisdiction  where  remedy  at  law 
available. 
Alimony. 

Cited  in  footnote  to  Hooper  v.  Hooper,  44  L.R.A.  725,  which  sustains  allow- 
ance of  gross  sum  from  husband's  estate  in  addition  to  monthly  alimony. 

Cited  in  note  (102  Am.  St.  Rep.  706)  on  power  of  courts  to  create  and  enforce 
liens  to  secure  payment  of  alimony. 

2  L.  R.  A.  621,  PENNSYLVANIA  R.  CO.  v.  BOWERS,  124  Pa.  183,  16  Atl.  836. 
Acceptance  of  statute. 

Distinguished  in  Gloninger  v.  Pittsburgh  &  C.  R.  Co.  139  Pa.  35,  21  Atl.  211, 
holding  railway  whose  charter  authorized  increase  of  indebtedness  not  limited  by 
legislation  of  1874  where  its  benefits  not  taken  advantage  of. 
Legislative  limitation  of  carrier's  liability  for  negligence. 

Cited  in  Palmer  v.  Philadelphia  B.  &  W.  R.  Co.  218  Pa.  121,  66  Atl.  1127,  hold- 
ing leading  case  not  to  apply  to  constitutionality  of  limitation  of  damages  against 
carrier  for  tortious  death  to  compensation,  but  only  to  limitation  to  fixed  amount 
for  injury  and  death;  Moyer  v.  Metropolitan  Electric  Co.  14  Pa.  Dist.  R.  803,  as 
approving  an  earlier  decision  except  as  to  the  constitutional  abrogation  of  a 
statute  limiting  liability  for  negligence. 


2  L.R.A.  621]  L.  R.  A.  CASES  AS  AUTHORITIES.  346 

Power  to  niter  corporate  charters. 

Cited  in  note  (21  Am.  St.  Rep.  148)  on  power  to  alter  corporate  charters. 

2  L.  R.  A.  623,  COM.  v.  DONAHUE,  148  Mass.  529,  12  Am.  St.  Rep.  591,  20  N. 

E.  171. 
Forcible  retaking  of  property. 

Followed  in  Stevens  v.  Friedman,  58  W.  Va.  80,  51  S.  E.  132,  holding  owner 
liable  for  use  of  more  force  than  necessary  in  retaking  of  property. 

Cited  in  Heminway  v.  Heminway,  58  Conn.  445,  19  Atl.  766,  holding  secretary 
justified  in  forcibly  regaining  possession  of  letter  file  from  director  using  same 
for  purposes  hostile  to  corporation;  State  v.  Hartley,  75  Conn.  108,  52  Atl.  615, 
holding  owner  may  reasonably  resist  officer  attempting  to  attach  exempt  property ; 
State  v.  Dooley,  121  Mo.  598,  26  S.  W.  558,  holding  recovery  of  possession  of 
horses  at  point  of  revolver  excessive  force;  State  ex  rel.  Rhodes  v.  Saunclers,  66 
N.  H.  80,  18  L.  R.  A.  653,  25  Atl.  588,  holding  statute  authorizing  injunction 
against  maintenance  of  liquor  nuisance  valid  exercise  of  governmental  right  of 
self -protection;  Drew  v.  State,  136  Ga.  661,  71  S  E.  1108,  holding  owner  not  jus- 
tified in  killing  thief  without  any  effort  to  regain  property  by  peaceable  means. 

Cited  in  notes    (14  L.  R.  A.  317,  318)    on  assault  in  recapture  of  property; 
(45  L.R.A.  687)   on  plea  of  self-defense  in  prosecution  of  crime;    (67  L.R.A.  534, 
535)  on  homicide  to  prevent  robbery  or  burglary;   (3  L.R.A. (X.S.)  252,  on  right  to 
use  force  to  recover  possession  of  personalty. 
Larceny  by  fraud. 

Cited  in  Com.  v.  Lannan,  153  Mass.  289,  11  L.  R.  A.  451,  25  Am.  St.  Rep.  629, 
26  N.  E.  858,  holding  attorney  guilty  of  larceny,  who,  through  trickery,  retains 
money  handed  him  by  Mient  for  transfer  to  third  party;  Trecy  v.  Jefts,  149  Mass. 
212,  21  N.  E.  360,  holding  debtor  double  paying  creditor  by  latter's  fraud  may 
maintain  action  to  recover  particular  money  so  paid. 

2  L.  R.  A.  625,  BARTLETT  v.  STANCHFIELD,  148  Mass.  394,  19  N.  E.  549. 
Substitution  of  oral  for  written  contract. 

Cited  in  McNeil  v.  Boston  Chamber  of  Commerce,  154  Mass.  280,  13  L.  R.  A. 
560,  28  N.  E.  245,  holding  "notice  to  bidders"  on  submitted  plans  and  specifica- 
tions, retaining  right  to  reject  any  and  all  bids,  may  be  varied  by  parol  agree- 
ment to  accept  lowest  bid;  Thomas  v.  Barnes,  156  Mass.  584,  31  N.  E.  683,  holding 
evidence  admissible  to  show  oral  warranty  of  refrigerator  built  under  bilateral 
written  contract;  Goodhue  v.  Hartford  F.  Ins.  Co.  175  Mass.  190,  55  N.  E.  1039, 
holding  stipulation  of  insurance  policy  against  removal  of  goods  without  written 
consent  may  be  varied  by  oral  agreement;  Leverone  v.  Arancio,  179  Mass.  448,  61 
N.  E.  45,  allowing  recovery  for  extras  ordered  with  defendant's  consent,  though 
architect's  certificate  not  given  as  per  contract;  The  Sappho,  36  C.  C.  A.  400,  94 
Fed.  550,  Reversing  89  Fed.  370,  holding  corporation  accepting  benefit  bound  by 
oral  contract  for  extra  work  in  repair  of  vessel  entered  into  by  master  with 
knowledge  and  consent  of  directors  and  officers;  Copeland  v.  Hewett,  96  Me.  529. 
53  Atl.  36,  holding  builder  entitled  to  extras  supplied  in  pursuance  of  alterations 
and  additions  agreed  upon,  though  not  reduced  to  writing  and  signed  by  parties 
as  required  by  contract;  Crowley  v.  United  States  Fidelity  &  G.  Co.  29  Wash. 
274,  69  Pac.  784,  holding  owner  orally  directing  and  contractor  acting  upon 
changes  waive  contract  provision  requiring  written  authority  for  deviations  from 
plans;  Close  v.  Martin,  208  Mass.  241,  94  N.  E.  388,  holding  that  notification  to 
owner  by  attorney  for  owner  and  purchaser  that  he  would  not  be  ready  at  agreed 
time  waives  time  provision,  though  contract  requires  written  change  of  time: 
Davis  v.  La  Crosse  Hospital  Asso  121  Wis.  587,  99  N.  W.  351,  1  A.  &  E.  Ann. 


347  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  626 

Cas.  950,  holding  the  unauthorized  performance  of  $38  extra  work  not  to  be  evi- 
dence of*  an  intent  to  waive  provision  that  extra  work  may  not  be  charged  unless 
agreed  to  by  writing,  in  a  $24,000  contract. 

Distinguished  in  Merritt  v.  Peninsular  Constr.  Co.  91  Md.  466,  46  Atl.  1013, 
disallowing  claim  for  extra  work  not  reduced  to  writing  in  pursuance  of  contract, 
though  oral  contract  entered  into  for  payment  therefor  at  time  of  execution  of 
original  contract;  Stillman  v.  Wickham,  106  Iowa,  599,  76  N.  W.  1008,  holding 
sureties  on  builder's  contract  not  liable  for  failure  to  perform  oral  contract  sub- 
stituted therefor;  Bartlett  v.  Illinois  Surety  Co.  142  Iowa,  550,  119  N.  W.  729, 
holding  that  where  bond  provides  that  changes  in  work  agreed  upon  will  not  re- 
lease surety  waiver  of  provision  in  contract  by  oral  agreement  and  not  as  pro- 
vided in  writing  will  not  release  surety. 
— —  Parol  agreement  for  extra  work. 

Cited  in  Charlotte  Harbor  &  N.  R.  Co.  v.  Burwell,  56  Fla.  227,  48  So.  213,  hold- 
ing provision  that  no  charge  be  made  for  extra  work,  unless  in  writing  may  be 
waived  by  action  of  parties  or  oral  agreement;  Ritchie  v.  State,  39  Wash.  100, 
SI  Pac.  79,  holding  that  a  provision  for  extra  charges  to  be  made  in  writing,  does 
not  effect  the  rights  of  the  parties  to  contract  further  by  implication  or  oral 
agreement;  Caldwell  v.  Schmulbach,  175  Fed.  437,  holding  provision  for  written 
order  for  extras,  may  be  waived  so  that  contractor  may  recover  for  extras  ordered 
orally. 
••—  Further  dealings  on  same  subject. 

Cited  in  O'Loughlin  v.  Poli,  82  Conn.  432,  74  Atl  763,  holding  that  parties 
to  a  written  contract  are  not  thereby  restricted  in  further  dealings  in  same  sub- 
ject matter. 

2  L.  R.  A.  626,  PHELPS  v.  NEW  YORK,  112  N.  Y.  216,  19  N.  E.  408. 

Followed  without  discussion  in  Van  Nest  v.  New  York,  113  N.  Y.  652,  21  N.  E. 
414,  and  Vaughn  v.  Portchester,  115  N.  Y.  637,  21  N.  E.  1116. 
Recovery  of  money  paid  under  mistake  of  law. 

Cited  in  People  ex  rel.  Edison  Electric  Illuminating  Co.  v.  Wemple,  69  Hun, 
372,  23  N.  Y.  Supp.  661,  holding  comptroller  not  authorized  to  readjust  account 
against  corporation  for  illegal  taxes  where  same  voluntarily  paid;  Baker  v. 
Bucklin,  43  App.  Div.  337,  60  N.  Y.  Supp.  294,  holding  payment  of  liquor 
tax  under  mistake  of  law  not  recoverable;  Pooley  v.  Buffalo,  122  N.  Y.  601,  26  N. 
E.  16,  holding  payment  of  assessment  void  on  face  not  recoverable;  Redmond  v. 
Xe\v  York,  125  N.  Y.  638,  26  N.  E.  727,  holding  payment  of  void  paving  assess- 
ment, made  to  secure  loan  on  property,  not  recoverable;  Vanderbeck  v.  Rochester, 
122  X.  Y.  289,  25  N.  E.  408,  holding  assessment  on  land  subject  to  dower  volun- 
tarily paid  by  widow  not  recoverable,  though  purpose  of  assessment  not  fulfilled; 
Boston  Mfrs.*Mut.  F.  Ins.  Co.  v.  Hendricks,  41  Misc.  489,  85  N.  Y.  Supp.  44,  hold- 
ing tax  illegal  on  face,  paid  by  foreign  insurance  company  in  apprehension  of  suit, 
cannot  be  recovered;  Smyth  v.  New  York,  26  Jones  &  S.  359,  11  N.  Y.  Supp.  583, 
holding  assessment  paid  after  order  vacating  same  not  recoverable;  Pennock  v. 
Douglas  County,  39  Neb.  301,  27  L.  R.  A.  125,  42  Am.  St.  Rep.  579,  58  N.  W.  117, 
and  Budge  v.  Grand  Forks,  1  N.  D.  316,  10  L.  R.  A.  168,  footnote  p.  165,  47  N. 
W.  3!)0,  holding  purchaser  at  sale  for  void  tax  cannot  recover  purchase  money 
from  city;  Converse  v.  Sickles,  74  Hun,  431,  26  N.  Y.  Supp.  590,  holding  money 
paid  in  satisfaction  of  valid  judgment,  not  appealed,  not  recoverable;  Harrington 
v.  New  York.  40  Misc.  169,  81  N.  Y.  Supp.  667,  holding  fine  imposed  by  magis- 
trate without  jurisdiction,  voluntarily  paid,  cannot  be  recovered;  Belloff  v.  Dime 
Sav.  Bank.  118  App.  Div.  22,  103  N.  Y.  Supp.  273,  on  non-recovery  of  money 
Voluntarily  paid  by  mistake  of  law. 


2  L.R.A.  626]  L.  R.  A.  CASES  AS  AUTHORITIES.  34* 

Cited  in  footnotes  to  Walser  v.  Board  of  Education,  31  L.  R.  A.  329,  which  de- 
nies right  to  recover  back  school  taxes  paid  by  mistake  to  district  not  entitled 
to  same;  Rogers  v.  St.  Paul,  47  L.  R.  A.  537,  which  denies  right  to  recover  back 
money  paid  on  assessment  for  uncompleted  street  improvement;  McConville  v.  St.. 
Paul,  43  L.  R.  A.  584,  which  authorizes  property  owner  to  recover  back  assess- 
ments which  he  has  been  compelled  to  pay  city  for  improvement  wholly  abandoned 
without  completion. 

Cited  in  notes    (4  L.R.A.  304)    on  recovery  of  money  paid  under  mistake  of 
law;  (94  Am.  St.  Rep.  435)  on  recovery  back  of  voluntary  payment. 
"What  Is  "voluntary"  payment. 

Cited  in  New  v.  New  Rochelle,  91  Hun,  217,  36  N.  Y.  Supp.  211,  holding  pay- 
ment after  issuance  of  distress  warrant  for  collection  of  tax  void  on  face  volun- 
tary, and  not  recoverable;  State  ex  rel.  Sanborn  v.  Stonestreet,  92  Mo.  App.  220,. 
holding  payment  of  illegal  fee  bill  after  notice  of  impending  enforcement  against 
property  voluntary  where  no  threat  of  immediate  seizure;  Van  Hise  v.  Rensselaei" 
County,  21  Misc.  576,  48  N.  Y.  Supp.  874,  holding  issuance  of  tax  warrants  en- 
forceable against  assessed  property  not  sufficient  to  render  payment  of  illegal  tax, 
involuntary;  Tripler  v.  New  York,  125  N.  Y.  631,  26  N.  E.  721,  holding  payment 
of  void  sewer  assessment  voluntary  where  the  only  coercion  proved  is  running 
of  interest  and  imposition  of  lien;  Palmer  v.  Syracuse,  26  Misc.  567,  57  N.  Y. 
Supp.  600,  holding  provision  for  addition  of  interest  and  fees  to  unpaid  local  as- 
sessments does  not  render  payment  involuntary;  Matthews  v.  William  Frank 
Brewing  Co.  26  Misc.  48,  35  N.  Y.  Supp.  241,  holding  fact  of  protest  at  time  of 
payment  does  save  right  to  contest  tax  subsequently;  Morris  v.  New  Haven,  78 
Conn.  675.  63  Atl  123,  holding  a  payment  of  taxes  under  protest  in  response  to  a 
bill  merely  inviting  payment  in  absence  of  coercion  or  duress  the  assessment  being 
without  warrant,  is  voluntary  and  citing  annotation  also  on  this  point;  Rupert 
v.  North  Pelham,  139  App.  Div.  304,  123  N.  Y.  Supp.  944,  holding  that  payment 
by  landowner,  after  property  is  sold  for  void  tax,  of  amount  claimed  under  cer- 
tificate of  sale  is  not  voluntary;  Gaar,  S.  &  Co.  v.  Shannon,  52  Tex.  Civ.  App. 
643,  115  S.  W.  361,  holding  that  payment  of  franchise  tax,  with  knowledge  of 
facts  rendering  it  illegal,  is  voluntary:  Flower  v.  State,  65  Misc.  150,  12]  X. 
Y.  Supp.  96,  holding  tax  voluntarily  paid  levied  under  an  unconstitutional  law 
may  not  be  recovered 

Annotation  cited  in  Johnson  v.  Crook,  53  Or.  334,  133  Am.  St.  Rep.  834,  100> 
Pac.  294,  on  the  voluntary  nature  of  a  payment  made  by  a  party  informed  of  all 
facts  connected  with  subject  matter  of  payment,  in  absence  of  duress  or  coercion 
though  made  with  protest. 

Cited  in  footnotes  to  St.  Anthony  &  D.  Elevator  Co.  v.  Soucie,  50  L.R.A.  262, 
which  sustains  right  to  recover  illegal  taxes  paid  under  protest  to  prevent  tax  col- 
lector's sale  of  personal  property  constructively;  C.  &  J.  Michel  Brewing  Co.  v. 
State,  70  L.R.A  911,  which  holds  that  requiring  foreign  corporation  to  pay  license 
fee  as  condition  precedent  to  sale  of  products  within  state  or  subject  itself  to 
penalties  supposed  to  be  prescribed  by  statute  not  such  compulsion  as  will  en- 
title it  to  recover  amounts  paid  on  statute  being  held  unconstitutional. 
Delegation  of  discretionary  powers. 

Cited  in  Greater  New  York  Athletic  Club  v.  Wurster,  19  Misc.  447,  43  N.  Y. 
Supp.  703,  holding  power  of  common  council  to  regulate  and  license  theaters,  etc., 
cannot  be  delegated  to  mayor;  Bolton  v.  Gilleran,  105  Cal.  248,  45  Am.  St.  Rep. 
33,  38  Pac.  881,  holding  sewer  assessment  based  on  contract  leaving  matters  of 
construction  and  resultant  expense  to  discretion  of  engineer  invalid;  Chase  v. 
Scheerer,  136  Cal.  252,  68  Pac.  768,  holding  tax  sale  based  upon  assessment  for 
improvement  of  street  under  contract  permitting  change  of  plans  and  allowance^ 


349  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  629 

for  "settling"  by  city  engineer  void;  Jewell  Belting  Co.  v.  Bertha,  91  Minn.  11, 
97  X.  W.  424.  holding  city  council  cannot  delegate  authority  to  city  president 
and  recorder  to  purchase  a  fire  engine  the  council  being  by  statute  the  governing 
iody  charged  with  administrative  affairs;  Hinman  v.  Clarke,  121  App.  Div.  107, 
in.!  X.  Y.  Supp.  725,  affirming  51  Misc.  257,  100  N.  Y.  Supp.  1068,  holding  an 
-ordinance  restricting  moving  of  buildings  without  permit  from  department  of  pub- 
lic works  not  an  improper  delegation  of  authority;  Hudson  v.  Flemming,  139  App. 
Div  320,  123  X.  Y.  Supp.  1065,  holding  that  local  board  of  health  cannot  delegate 
to  milk  inspector  power  to  grant  licenses  to  sell  milk. 

Distinguished  in  Lough ry  v.  Pittsburgh,  29  Pittsb.  L.  J.  N.  S.  431,  holding 
selection  of  material  to  be  used  in  paving  may  be  delegated  by  council  to  director 
•of  public  works;  Burchell  v.  New  York,  30  N.  Y.  S.  R.  419,  9  N.  Y.  Supp.  196, 
holding  assessment  not  invalid  where  evidence  does  not  show  its  levy  for  pave- 
ments the  reconstruction  of  which  is  irregularly  left  to  discretion  of  com- 
missioners. 
Right  to  equitable  relief. 

Distinguished  in  Pooley  v.  Buffalo,  124  N.  Y.  208,  26  N.  E.  624,  holding  party 
entitled  to  equitable  relief  against  assessment  presumptively  valid  by  statute, 
but  void  by  matter  deliors  record. 

2  L.  R.  A.  629,  BEDLOW  v.  NEW  YORK  FLOATING  DRY  DOCK  CO.  112  N.  Y. 
263,  19  X'.  E.  800. 

!{«•«•  illation   and   control  of  public   >v:iy.s. 

Cited  in  Sun  Printing  &  Pub.  Asso.  v.  New  York,  8  App.  Div.  281,  40  N.  Y. 
Supp.  607,  holding  construction  of  municipal  rapid  transit  works  proper  subject 
of  municipal  enterprise;  People  v.  Baltimore  &  0.  R.  Co.  117  N.  Y.  156,  22  X.  E. 
1026.  holding  statute  authorizing  erection  of  sheds  upon  piers  or  bulkheads,  after 
obtaining  license,  constitutional. 

Cited  in  note  (59  L.  R.  A.  45)  on  extent  of  sovereign's  right,  as  against  subject 
generally,  to  obstruct  navigation. 
Riparian  rights. 

Cited  in  Kerr  v.  West  Shore  R.  Co.  127  N.  Y.  278,  27  N.  E.  833,  holding  owner 
of  upland  not  entitled  to  compel  draw  in  raia-oad  bridge  cutting  off  access  to 
docks  in  river  bay;  Re  Xew  York,  168  X.  Y.  145,  56  L.  R.  A.  504,  61  N.  E.  158, 
Reversing  60  App.  Div.  125;  69  N.  Y.  Supp.  994,  holding  municipality  not  au- 
thorized to  construct  driveway  on  tideway,  cutting  off  riparian  easements,  with- 
out compensation. 
Adverse  possession  by  tenant. 

Cited  in  Church  v.  Wright.  4  App.  Div.  315,  38  N.  Y.  Supp.  701,  holding  Code, 
§  373,  applicable  to  tenant  continuing  in  possession  under  deed  recognizing  lease, 
after  unexecuted  judgment  in  ejectment  for  nonpayment  of  rent;  Bissing  v.  Smith, 
85  Hun,  569,  33  XT.  Y.  Supp.  123,  holding  grantee  of  tenant  returning  after  evic- 
tion in  adverse  possession  so  as  to  render  conveyance  of  owner  within  twenty 
years  champertous;  Lewis  v.  New  York  &  H.  R.  Co.  162  N.  Y.  222,  56  N.  E.  540, 
holding  party  in  possession  under  conflicting  instruments,  one  hostile,  the  other 
consistent,  with  title  in  true  owner,  presumptively  tenant  of  latter;  Merritt  v. 
Smith,  27  Misc.  370,  58  X'.  Y.  Supp.  851,  holding  attornment  by  tenant  to 
stranger  does  not  destroy  tenancy;  Shneider  v.  Mahl,  84  App.  Div.  6,  82  X.  V 
Supp.  27,  holding  mortgagee  not  chargeable  with  notice  of  rights  of  prior  equi- 
table mortgagee  in  possession  as  tenant;  Hoyt  v.  Forrest.  56  Misc.  148,  106  X. 
Y.  Supp.  1083,  holding  that  where  plaintiff  has  no  actual  possession  and  defendant 
is  collecting  rents  his  action  to  quiet  title  must  be  dismissed;  Cobb  v.  Robertson, 


2  L.R.A.  629]  L.  R.  A.  CASES  AS  AUTHORITIES.  350 

99  Tex.  145,  122  Am.  St.  Rep.  609,  86  S.  W.  746,  holding  that  the  holding  of 
a  tenant  under  a  lessee  of  landlord  is  the  constructive  holding  of  the  landlord; 
Illinois  Steel  Co.  v.  Budzisz,  139  Wis.  294,  119  N.  W.  935,  on  the  possession  of 
tenant  as  possession  of  landlord. 

Cited  in  footnote  to  Davis  v.  Williams,  54  L.  R.  A.  749,  which  sustains  agent's 
right  to  acquire  adverse  title  to  principal's  property  occupied  as  part  of  contract 
of  service. 

Cited  in  notes  (53  L.  R.  A.  945)  on  power  of  tenant  to  initiate  adverse  pos- 
session during  term;  (53  L.  R.  A.  949)  on  presumption  as  to  possession  of  tenant 
holding  over;  (40  L.  R.  A.  605)  on  upland  owner's  right  of  access  to  navigable 
water  as  against  private  individual;  (89  Am.  St  Rep.  88,  89,  90,  97)  on  estoppel 
to  deny  landlord's  title. 
Landlord's  title  to  fixtures. 

Cited  in  notes   (6  L.  R.  A.  249)   on  what  constitute  fixtures;    (9  L.  R.  A.  701) 
on  tenant's  right  to  remove  fixtures  after  expiration  of  term;    (11  L.  R.  A.  498) 
on  what  operates  at  law  as  surrender  of  leasehold  estate. 
Riparian  owner's  estate  in  pier  erected  under  municipal  authority. 

Cited  in  Bedlow  v.  Stillwell,  91  Hun,  385,  36  N.  Y.  Supp.  129,  Affirmed  on  ap- 
peal, 158  N.  Y.  298,  53  N.  E.  26,  holding  widow  entitled  to  dower  in  husband's 
interest  in  pier. 

Cited  in  note    (40  L.  R.  A.  647)    on  effect  of  constructing  wharf  in  front  of 
property. 
Authority  to  maintain  pier. 

Cited  in  Bell  v.  New  York,  77  App.  Div.  452,  79  N.  Y.  Supp.  347,  holding  com- 
mon council  could  give  consent  to  construction  of  pier  on  lands  under  East 
river  owned  by  state;  Bell  v.  New  York,  77  App.  Div.  452,  79  N.  Y.  Supp.  347, 
holding  prescriptive  right  to  maintain  pier  on  state  lands  acquired  from  twenty- 
year  use;  Bell  v.  New  York,  77  App.  Div.  452,  79  N.  Y.  Supp.  347,  holding  ordi- 
nance vesting  right  to  grant  lands  under  water  in  commissioners  of  sinking  fund 
has  no  application  to  pier  constructed  by  abutting  owner  with  common  council's 
consent. 
Description  of  riparian  boundary  of  property. 

Cited  in  People  ex  rel.  Burnham  v.  Jones,  112  N.  Y.  605,  20  N.  E.  577,  holding 
conveyance  "to  the  beach"  not  to   include  beach   itself,  where  boundary  is  de- 
scribed as  straight  line. 
Review  on  appeal  of  exceptions  to  findings  of  fact. 

Followed  in  Morris  v.  Wells,  26  N.  Y.  S.  R.  11,  7  N.  Y.  Supp.  61,  holding  refusal 
to  find  material  fact  established  by  undisputed  proof  reviewable  on  appeal ;  Styles 
v.  Tyler,  64  Conn.  474,  30  Atl.  165  (dissenting  opinion),  holding  to  the  same  effect. 

Cited  in  Naser  v.  First  Nat.  Bank,  116  N.  Y.  497,  22  N.  E.  1077,  holding  suffi- 
ciency of  evidence  to  support  finding  of  fact  not  subject  to  review  in  absence  of 
exception;  Halpin  v.  Phenix  Ins.  Co.  118  N.  Y.  172,  23  N.  E.  482,  holding  certifi- 
cate that  case  on  appeal  contains  all  the  evidence  not  essential  to  review  unsup- 
ported finding  of  fact  duly  excepted  to;  Larkin  v.  McMullin,  120  N.  Y.  212,  24  N. 
E.  447,  holding  exceptions  to  findings  of  fact  not  reviewable  on  appeal,  where  it 
does  not  appear  that  judgment  was  reversed  and  new  trial  granted  on  questions 
of  fact;  Woodman  v.  Penfield,  2  Silv.  Sup.  Ct.  248,  6  N.  Y.  Supp.  803,  holding  re- 
fusal of  referee  to  respond  to  request  for  findings  not  ground  of  reversal,  where 
not  prejudicial  to  appellant;  Rehberg  v.  Grierser,  24  Mont.  493,  63  Pac.  41,  hold- 
ing specification  of  errors  in  findings  of  fact  requisite  to  review  by  court  of 
appeals  as  question  of  law;  Woodman  v.  Penfield,  2  Silv.  Sup.  Ct.  247,  6  N.  Y. 


351  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  630 

Supp.  803,  holding  error  in  refusing  proper  requests  to  find  facts  not  reversible 
where  referee's  findings  necessarily  cover  findings  requested. 

2  L.  R.  A.  636,  ROBINSON  v.  OCEAN  STEAM  NAV.  CO.  112  N.  Y.  315,  19  N.  E. 

625. 
Residence  as  affecting-  jurisdiction. 

Cited  in  O'Reilly  v.  New  Brunswick,  A.  &  N.  Y.  S.  S.  Co.  28  Misc.  116,  59  N. 
Y.  Supp.  261,  holding  averment  of  plaintiff's  residence,  essential  to  complaint 
against  foreign  corporation  in  action,  not  available  to  nonresident;  Hoes  v.  Xc\v 
York,  N.  H.  &  H.  R.  Co."  173  N.  Y.  441,  66  N.  E.  119,  Reversing  73  App.  Div.  370, 
77  X.  Y.  Supp.  117,  holding  administrator  of  nonresident,  whose  assets  were 
brought  into  state  for  purpose  of  obtaining  letters  of  administration,  cannot 
prosecute  cause  of  action  arising  in  another  state  for  causing  intestate's  death, 
against  foreign  corporation;  Gurney  v.  Grand  Trunk  R.  Co.  37  N.  Y.  S.  R.  561, 
13  X.  Y.  Supp.  645,  holding  complaint  by  local  administrators  of  foreign  decedent 
against  foreign  corporation  for  injuries  received  out  of  state  not  demurrable  where 
plaintiff's  nonresidence  not  apparent  from  complaint;  Gundlin  v.  Hamburg-Amer- 
ican Packet  Co.  8  Misc.  296,  28  N.  Y.  Supp.  572,  upholding  judgment  rendered  on 
general  verdict  where  plaintiff's  residence  submitted  to  jury;  Re  Bailey,  31  Nev. 
382,  103  Pac.  232,  Ann.  Cas.  1912a,  743,  holding  that  nonresident  may  take  out 
letters  of  administration;  Re  Gennert,  96  App.  Div.  1],  89  N.  Y.  Supp.  37,  holding 
surrogate  court  has  no  jurisdiction  to  issue  ancillary  letters  of  administration 
where  petitioner,  executors  and  personal  property  of  decedent  are  situated  out 
of  the  state  and  decedent  estate  is  solvent;  Brisbane  v.  Pennsylvania  R.  Co.  141 
App.  Div.  368,  125  N.  Y.  Supp.  1042,  holding  that  court  has  jurisdiction  of  action, 
by  resident  against  foreign  corporation  for  damages  to  foreign  land;  Jones  v. 
Burr  Bros.  142  App.  Div.  641,  127  N.  Y.  Supp.  478,  holding  court  without  juris- 
diction of  action  by  nonresident  against  foreign  corporation  for  breach  of  con- 
tract made  in  another  state  for  services  therein;  Johnson  v.  Victoria  Chief  Copper 
Min.  &  Smelting  Co.  65  Misc.  334,  119  N.  Y.  Supp.  639,  holding  court  not  to  have 
jurisdiction  where  parties  are  nonresidents  and  subject  matter  is  without  the 
state:  Hopper  v.  Hopper,  20  N  Y.  Civ.  Proc.  Rep.  107,  holding  word  "only"  in 
statute  is  restrictive  of  the  jurisdiction  defined. 

Cited  in  footnote  to  Robertson  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  .66  L.R.A.  919, 
which  holds  widow  residing  in  one  state  of  resident  of  such  state  who  was  negli- 
gently killed  in  another  state  entitled  to  benefit  of  statute  of  latter  state  making 
negligent  party  liable  therefor  and  requiring  amount  of  recovery  to  be  paid  widow. 

Cited  in  notes  (56  L.  R.  A.  215,  218)  on  right  of  local  representative  to  sue 
on  foreign  cause  of  action;  (14  L.  R.  A.  583)  on  constitutional  equality  as  to 
privileges  in  litigation;  (7  L.R.A.  522,  543,  548)  on  right  of  nonresidents  to  sue 
foreign  corporations;  (59  Am.  St.  Rep.  875,  878)  on  right  to  prosecute  transitory 
causes  of  action  in  other  jurisdiction;  (85  Am.  St  Rep.  921,  926)  on  jurisdiction, 
of  foreign  corporations. 

Distinguished  in  Smith  v.  Crocker,  14  App.  Div.  249,  43  N.  Y.  Supp.  427,  retain- 
ing jurisdiction  in  action  of  contract  between  nonresidents;  Hopper  v.  Hopper, 
125  N.  Y.  400,  12  L.  R,  A.  238,  26  N.  E.  457,  holding  foreign  executor  taking  out 
local  ancillary  letters  subject  to  suit  as  resident;  Herbert  v.  Montana  Diamond 
Co.  81  App.  Div.  214,  80  N.  Y.  Supp.  717,  holding  complaint  against  foreign  cor- 
poration, not  alleging  plaintiff's  residence,  not  demurrable. 

Cited  as  distinguished  in  Hunter  W.  Finch  &  Co.  v.  Zenith  Furnace  Co.  ]46  111. 
App.  268,  denying  power  "to  sue  or  be  sued"  without  reference  to  charter  powers. 
Jurisdiction  over  subject-matter  of  unit. 

Cited  in  Monda  v.  Wells,  F.  &  Co.  20  Misc.  687,  46  N.  Y.  Supp.  682,  Affirmed  in 


2  L.R.A.  636]  L.  R.  A.  CASES  AS  AUTHORITIES.  352 

21  Misc.  309,  47  N.  Y.  Supp.  182,  holding  court  without  jurisdiction  of  action 
between  nonresidents  on  through  contract  of  shipment  made  and  performable  out 
of  state;  Perry  v.  Erie  Transfer  Co.  28  Abb.  N.  C.  432,  19  N.  Y.  Supp.  239,  22 
N.  Y.  Civ.  Proc.  Rep.  181,  dismissing  complaint  between  nonresidents  on  contract 
made  and  broken  in  another  state  though  performable  in  part  within  jurisdiction; 
Hatfield  v.  Sisson,  28  Misc.  256,  59  N.  Y.  Supp.  73,  dismissing  complaint  for  slan- 
der between  nonresidents  where  words  spoken  outside  state;  Smith  v.  Empire 
State  Idaho  Min.  &  Development  Co.  127  Fed.  465,  holding  nonresident  widow 
may  sue  foreign  corporation  negligently  causing  husband's  death  in  another  state, 
in  courts  of  state  where  it  maintains  principal  office;  Ferguson  v.  Xeilson,  33  N. 
Y.  S.  R.  815,  11  N.  Y.  Supp.  524,  dismissing  action  between  nonresidents  for  tort 
outside  state;  Anglo- American  Provision  Co.  v.  Davis  Provision  Co.  50  App.  Div. 
275,  63  N.  Y.  Supp.  987,  Affirmed  in  169  N.  Y.  513,  88  Am.  St.  Rep.  608,  62  N.  E. 
587,  holding  foreign  judgment  not  enforceable  between  nonresidents,  since  it  is 
not  a  cause  of  action  arising  within  state;  Selser  Bros.  Co.  v.  Potter  Produce 
Co.  77  Hun,  314,  28  N.  Y.  Supp.  428,  holding  attachment  in  proceeding  between 
nonresidents  erroneously  granted  where  affidavit  fails  to  show  contract  made  or 
broken  in  jurisdiction;  Potter  v.  New  York  City  Baptist  Mission  Soc.  23  Misc. 
680,  52  N.  Y.  Supp.  294,  holding  appearance  of  parties  insufficient  to  cure  com- 
plaint failing  to  state  cause  of  action;  Dayton  v.  Board  of  Equalization.  33  Or. 
136,  50  Pac.  1009,  holding  jurisdiction  of  board  not  dependent  upon  appearance 
in  record  of  fact  of  due  preparation  of  tax  rolls;  Barker  v.  Cunard  S.  S.  Co.  91 
Hun,  501,  36  N.  Y.  Supp.  256  (concurring  opinion),  majority  holding  jurisdiction 
of  court  of  general  jurisdiction  in  action  against  foreign  corporation  presumed, 
where  contrary  is  not  shown  on  trial  or  by  record  on  appeal;  Hoes  v.  Xew  York. 
N.  H.  &  H.  R.  Co.  33  X.  Y.  Civ.  Proc.  Rep.  313,  holding  the  jurisdiction  could 
not  be  conferred  by  bringing  trifling  assets  into  the  state  on  which  to  appoint 
an  administrator  to  sue. 

Distinguished  in  Flynn  v.  Central  R.  Co.  2  Misc.  510,  27  Abb.  N.  C.  33,  15  N. 
Y.  Supp.  328,  retaining  jurisdiction  of  action  by  resident  against  foreign  corpo- 
ration for  injuries  received  outside  state;  Colorado  State  Bank  v.  Gallagher,  76 
Hun,  311,  27  N.  Y.  Supp.  688,  holding  action  by  nonresident  corporation  against 
nonresident  on  foreign  contract,  within  court's  jurisdiction;  Ladenburg  v.  Com- 
mercial Bank,  24  N.  Y.  Civ.  Proc.  Rep.  235,  32  N.  Y.  Supp.  873,  holding  failure 
of  affidavit  in  attachment  against  foreign  corporation  to  show  facts  bringing  case 
within  Code  provisions  not  void  where  defect  supplied  by  affidavit  filed  nunc  pro 
tune;  Wertheim  v.  Clergue,  53  App.  Div.  124,  65  N.  Y.  Supp.  750,  holding  non- 
resident entitled  to  trial  of  action  arising  out  of  state  for  fraudulent  breach  of 
contract;  Barrow  S.  S.  Co.  v.  Kane,  170  U.  S.  110,  42  L.  ed.  968,  18  Sup.  Ct. 
Rep.  526,  holding  right  of  citizens  of  diverse  residence  to  sue  in  Federal  courts 
not  controlled  by  state  legislation. 
Taking  of  objection  to  jurisdiction* 

Cited  in  Gillin  v.  Canary,  19  Misc.  599,  44  X.  Y.  Supp.  313,  holding  party  con- 
solidating claims  not  estopped  to  object  on  appeal  that  amount  of  consolidated 
claims  exceeds  jurisdiction  of  court;  Tyroler  v.  Gummersbach,  28  Misc.  158,  59 
N.  Y.  Supp.  266,  reversing  judgment  on  appeal  where  record  failed  to  show  juris- 
diction of  inferior  court  over  defendant;  Baird  v.  Sheehan,  38  App.  Div.  15,  56 
N.  Y.  Supp.  228,  where  appellate  court  ex  mero  motu  refused  relief  on  contract 
void  as  against  public  policy;  Miller  v.  Suncle,  1  X.  D.  4,  44  X.  W.  301,  reversing 
sua  sponte  on  appeal  judgment  rendered  after  transfer  of  cause  to  Federal  court; 
Levy  v.  Swick  Piano  Co.  17  Misc.  147,  39  X.  Y.  Supp.  409,  holding  party  not  es- 
topped to  attack  validity  of  order  in  supplementary  proceedings  against  corpora- 
tion by  institution  of  like  proceeding  himself;  Cohen  v.  Xagle,  190  Mass.  ]4,  2 


353  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  638 

L.R.A.(N.S.)  971,  76  N.  E.  276,  5  A.  &  E.  Ann.  Cas.  553,  holding  findings  of  lower 
court  will  not  be  set  aside  on  appeal  for  error  or  jurisdiction  unless  they  plainly 
appear  to  be  wrong. 

Distinguished  in  Ubart  v.  Baltimore  &  0.  R.  Co.  117  App.  Div.  832,  102  X. 
Y.  Supp.  1000,  holding  nonresidence  must  be  pleaded  to  raise  question  of  fact. 

2  L.  R.  A.  638,  BRYAN  v.  UNIVERSITY  PUB.  CO.  112  N.  Y.  382,  19  N.  E.  825- 
Propriety  of  order  for  publication. 

Cited  in  Von  Hesse  v.  Mackaye,  55  Hun,  .370,  8  N.  Y.  Supp.  894,  Reversing  5  N 
Y.  Supp.  791,  holding  publication  against  nonresident  claimant  of  bond  not  within 
state  unauthorized;  Paget  v.  Stevens,  143  X.  Y.  177,  38  X.  E.  273,  Reversing  8 
Misc.  238,  28  N.  Y.  Supp.  549,  holding  publication  unauthorized  in  action  by 
plaintiffs,  of  whom  one  alien,  for  nonresident's  foreign  misconduct;  Montgomery 
v.  Boyd,  60  App.  Div.  136,  70  X.  Y.  Supp.  139,  holding  publication  against  non- 
resident unauthorized  unless  complaint  shows  that  plaintiff  has  a  cause  of  action 
against  defendant;  Chesley  v.  Morton,  9  App.  Div.  463,  41  N.  Y.  Supp.  463,  hold- 
ing publication  authorized  in  suit  to  enforce  partner's  lien  upon  dissolved  part- 
nership's domestic  assets;  Hartzell  v.  Vigen,  6  N.  D.  132,  35  L.  R.  A.  458,  66  Am. 
St.  Rep.  589,  69  X.  W.  203,  holding  that  "subject  of  action,"  of  which  affiant  must 
show  that  the  court  has  jurisdiction  to  warrant  publication,  relates  to  the  contro- 
versy, and  not  property  attached;  Foster  v.  Electric  Heat  Regulator  Co.  16  Misc. 
148,  37  N.  Y.  Supp.  1063,  holding  publication  unauthorized  without  plaintiff's  res- 
idence alleged  in  verified  complaint;  Scharmann  v.  Schoell,  23  App.  Div.  402,  48  N. 
Y.  Supp.  306,  holding  cause  of  action  stated  in  action  upon  bond  of  administrator 
not  made  party,  where  his  absconding  or  concealment  after  collecting  property 
alleged;  O'Reilly  v.  Xew  Brunswick,  A.  &  N.  Y.  S.  S.  Co.  28  Misc.  118,  59  N.  Y. 
Supp.  261,  holding  no  cause  of  action  stated  against  foreign  corporation  unless 
plaintiff's  residence  alleged;  Holmes  v.  Bell,  139  App.  Div.  461,  124  N.  Y.  Supp. 
301,  holding  that  complaint  must  allege  cause  of  action  of  which  court  can  take 
cognizance  to  justify  order  for  publication;  Grant  v.  Cobre  Grande  Copper  Co.  126 
App.  Div.  758,  111  X.  Y  Supp.  386,  on  pleading  facts  constituting  claim  and  ap- 
pearance of  jurisdiction  as  necessary  to  support  publication;  Murphy  v.  Franklin 
Sav.  Bank,  131  App.  Div.  764,  116  N.  Y.  Supp.  228  (dissenting  opinion),  on  the 
impropriety  of  orders  of  publication  where  personal  property  in  question  is 
located  without  the  state;  P.  H.  &  F.  M.  Roots  Co.  v.  Decker,  111  Minn.  462,  127 
N.  W.  417,  holding  that  jurisdiction  to  determine  ownership  of  letters  patent 
must  be  obtained  by  personal  service  on  defendant  within  territorial  limits  of 
court's  jurisdiction. 

Cited  in  note   (22  Am.  St.  Rep.  402)   on  service  by  publication. 

Distinguished  in  Taylor  v.  Security  Mut.  L.  Ins.  Co.  38  Misc.  577,  77  N.  Y. 
Supp.  1012,  holding  publication  good  against  foreign  pledgee  of  insurance  policy 
payable  within  state  in  action  to  ascertain  payee;  Bragg  v.  Gaynor,  85  Wis. 
488,  21  L.  R.  A.  168,  55  N.  W.  919,  holding  debt  authorized  basis  for  publication 
in  action  to  reach  nonresident's  domestic  property. 
Remedy  for  improper  order. 

Cited  in  Everett  v.  Everett,  22  App.  Div.  475,  47  N.  Y.  Supp.  994,  holding  de- 
fendant may  appear  specially  for  substantial  objection  to  jurisdiction,  before 
general  appearance;  Guffey  v.  Grand  Trunk  R.  Co.  67  Misc.  559,  122  N.  Y.  Supp. 
947,  holding  that  an  order  for  service  of  summons  by  publication  will  be  vacated 
on  motion  where  defendant  and  property  are  outside  the  state  and  no  warrant 
has  been  actually  issued. 

L.R.A.  Au.  Vol.  I.— 23. 


2  L.R.A.  638]  L.  R.  A.  CASES  AS  AUTHORITIES.  354 

2  I,.  R.  A.  642,  HONDURAS  v.  SOTO,  112  N.  Y.  310,  8  Am.  St.  Rep.  744,  19  N. 

E.  845. 
Induction  of  "person." 

Cited  in  West  Coast  Mfg.  &  Invest.  Co.  v.  West  Coast  Improv.  Co.  25  Wasb. 
642,  62  L.  R.  A.  771,  66  Pac.  97,  holding  the  state  within  warranty  of  title  gen- 
erally against  all  persons;  Giddings  v.  Holter,  19  Mont.  267,  48  Pac.  8,  holding 
United  States  a  person  within  covenant  of  warranty;  Henry  Huber  Co.  v.  Warren, 
29  Misc.  588,  61  N.  Y.  Supp.  247,  holding  a  foreign  corporation  is  not  a  "person" 
within  meaning  of  code  because  it  maintains  a  local  office;  South  Carolina  v. 
United  States,  39  Ct.  Cl.  290,  as  maintaining  that  such  terms  as  "corporation"  and 
"person"  are  broad  enough  in  statutory  construction  to  include  the  corporate 
side  of  a  government  or  municipality. 

Cited  in  note  (19  L.  R.  A.  223)  on  nature  of  a  sovereignty  as  a  person. 
Requirement  of  security  for  costs  statutory. 

Cited  in  Bonnett  v.  Townsend,  63  Hun,  47,  17  N.  Y.  Supp.  566.  holding  author- 
ity to  require  security  for  costs  must  be  found  in  statute,  if  existent. 
Requiring  additional  security. 

Cited  in  Newhall  v.  Appleton,  25  Jones  &  S.  164,  6  N.  Y.  Supp.  4,  holding  where 
money  paid  into  court  in  lieu  of  undertaking,  additional  undertaking  cannot  be 
required;  Dunk  v.  Dunk,  177  N.  Y.  267,  69  N.  E.  539,  Affirming  88  App.  Div.  298, 
85  N.  Y.  Supp.  25,  holding  court  cannot  order  additional  security  where  under- 
taking for  costs  was  voluntarily  given,  after  service  of  motion,  therefor;  United 
States  Land  &  Invest.  Co.  v.  Bussey,  53  Hun,  519,  6  N.  Y.  Supp.  416,  holding 
court  cannot  order  additional  undertaking  in  replevin;  McHugh  v.  Astrophe,  1 
Misc.  219,  20  N.  Y.  Supp.  878,  holding  defendant,  substituted  by  order  of  inter- 
pleader, cannot  be  required  to  furnish  security  for  costs  as  condition  for  asserting 
claim;  Schroeder  v.  Page,  124  App.  Div.  255,  108  N.  Y.  Supp.  721,  holding  the 
taking  of  additional  security  for  costs  not  authorized  under  code  where  before 
application  therefor  the  action  has  been  dismissed  and  judgment  entered  for  costs 
and  plaintiff's  appeal  there  being  nothing  to  indicate  inability  of  plaintiffs  to 
pay  judgment;  Banes  v.  Rainey,  124  App.  Div.  584,  109  X.  Y.  Supp.  140,  holding 
nonresident  plaintiff  not  obliged  to  give  additional  security  for  costs  after  judg- 
ment is  entered  dismissing  complaint,  plaintiff  appealing;  Newhall  v.  Appleton, 
25  Jones  &  S.  162,  6  N.  Y.  Supp.  4,  holding  court  has  no  power  to  order  nonresi- 
dent plaintiff  to  file  additional  security  for  costs  where  in  pursuance  of  an  order 
for  security  plaintiff  has  filed  money  in  lieu  of  security. 

Cited  as  changed  by  statute  and  distinguished  in  Brewster  v.  Wooster,  9  Misc. 
G92,  30  N.  Y.  Supp.  546,  sustaining  authority  to  require  of  nonresident  additional 
undertaking  for  costs  where  sum  in  original  insufficient. 
Costs  as  statutory  right. 

Cited  in  Ponce  De  Leon  v.  Brooklyn  Heights  R.  Co.  125  App.  Div.  753,  110  X.  Y. 
Supp.  571,  holding  costs  not  allowable  because  under  circumstances  of  case  statute 
denied  them  owing  to  smallness  of  amount  recovered. 

2  L.  R.  A.  644,  DEOBOLD  v.  OPPERMANN,  111  N.  Y.  531,  684,  7  Am.  St.  Rep. 

760,  19  N.  E.  94. 
Privity  of  sureties. 

Cited  in  Altman  v.  Hofeller,  152  N.  Y.  503,  46  N.  E.  961,  holding  judicial  set- 
tlement of  administrator's  account  conclusive  upon  sureties;  Greer  v.  McXeal.  ]1 
Okla.  531,  69  Pac.  893,  holding  sureties  on  administrator's  bond  concluded  by 
probate  court  decree  rendered  upon  final  accounting,  to  which  they  were  not 
parties;  Re  Gall,  42  App.  Div.  257,  59  N.  Y.  Supp.  254,  holding  administrator's. 


355  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  644 

surety  bound  by  certificate  establishing  claim  against  estate;  Judge  of  Probate 
v.  Sulloway,  68  N.  H.  515,  49  L.  R.  A.  349,  73  Am.  St.  Rep.  619,  44  Atl.  720, 
holding  sureties  liable  for  executor's  personal  debt  to  testator,  made  asset  by 
statute;  Re  Gall,  47  App.  Div.  494,  (52  X.  Y.  Supp.  420,  holding  sureties  and  ad- 
ministrator liable,  after  distribution  duly  presented,  to  person  not  notified  of 
final  accounting;  Bodine  v.  Williamson,  134  App.  Div.  689,  119  N.  Y.  Supp.  500, 
holding  that  surety  on  official  bond  of  administrator  cannot  maintain  suit  to  set 
aside  discharge  of  administrator  and  acceptance  of  accounts  by  a  surrogate  court 
of  competent  jurisdiction  in  absence  of  collusion  or  fraud. 

Cited  in  notes    (7  L.R.A.  745)   on  suretyship  and  bearing  of  loss  by  one  who 
causes   it;    (40  L.R.A. (N.S.)    713)    on   effect  upon   surety  of  judgment  against 
principal. 
—  Notice. 

Cited  in  Botkin  v.  Kleinschmidt,  21  Mont.  6,  69  Am.  St.  Rep.  641,  52  Pac.  562, 
holding  sureties  bound  by  judgment,  without  notice  to  them,  against  guardian. 

Cited  in  note  (132  Am.  St.  Rep.  761,  765)  on  admissibility  and  effect  against 
surety  of  judgment  against  principal. 

Cited  as  modified  by  statute  in  McMahon  v.  Smith,  24  App.  Div.  28,  49  N.  Y. 
Supp.  93,  holding  surety  liable  for  administrator's  failure  to  obey  lawful  order 
upon  compulsory  accounting  without  notice. 

Distinguished  in  Thomson  v.  American  Surety  Co.  170  N.  Y.  114,  62  N.  E.  1073, 
holding  surety  for   money  which   "shall   come"  into  trustee's  hands,   not  liable 
for  previous  infidelity. 
Liability  of  sureties. 

Cited  in  Beckett  v.  Place,  12  Misc.  327,  33  N.  Y.  Supp.  634,  holding  non-com- 
pliance with  order  for  administrator  personally  to  pay  expense  of  second  reference 
of  accounts,  official  default  within  bond;  Chard  v.  Hamilton.  56  Hun,  267,  9  N.  Y. 
Supp.  575,  holding  mere  surety,  known  as  such  by  obligee  and  unsecured  by 
principals,  discharged  of  all  liability  by  death  before  principals;  Johnson  v. 
Ayres,  18  App.  Div.  500,  46  N.  Y.  Supp.  132,  holding  sureties  for  moneys  legally 
received  not  estopped  to  question  decree  making  principal  liable  for  moneys 
wrongfully  received:  Tucker  v.  Stewart,  147  Iowa,  307,  126  N.  W.  183,  holding 
sureties  liable  so  long  as  administrator  remains  bound  to  correct  fault  in  his 
final  report  due  to  his  fraud  or  mistake. 

Cited  in  footnotes  to  Probate  Judge  v.  Sulloway,  49  L.  R.  A.  347,  which  holds 
sureties  on  insolvent  executor's  bond  liable  for  his  personal  debt  to  testator;  Ab- 
shire  v.  Salver,  56  L.  R.  A.  936,  which  holds  sureties  on  guardian's  bond  given 
to  obtain  silence  from  future  liabilities  of  surety  on  prior  bond  liable  for  past 
defalcations. 

Cited  in  note  (52  L.  R.  A.  188)  on  effect,  against  surety  on  official  bond,  of 
judgment  against  officer. 

Distinguished  in  Cook  v.  Shull,  35  App.  Div.  123,  54  N.  Y.  Supp.  696,  holding 
sureties  may  retain  loan  payable  upon  discharge  of  bond  for  money  paid  com- 
mittee, until  such  discharge. 
Agreements   as   to   use    of   administration    funds. 

Cited  in  Dntcher  v.  Dutcher,  88  Hun,  225.  34  X.  Y.  Supp.  65.3,  holding  admin- 
istrator's personal  agreement,  not  by  way  of  adjustment,  invalid;  Lawyers'  Sure- 
ty Co.  v.  Reinach.  25  Misc.  157,  54  X".  Y.  Supp.  205,  Affirming  23  Misc.  246,  51  N. 
Y.  Supp.  162,  holding  false  representations  of  administrator  no  defense  to  con- 
version of  assets  paid  by  mistake;  Moss  v.  Cohen,  158  N.  Y.  253.  53  X.  E.  8,  Re- 
versing 11  Misc.  187,  32  N.  Y.  Supp.  1078,  holding  legatee  liable  upon  agreement 
to  repay  unauthorized  advancement  by  executor;  Fidelity  &  D.  Co.  v.  Butlor, 


2  L.R.A.  644]  L.  R.  A.  CASES  AS  AUTHORITIES.  356 

130  Ga.  232,  16  L.R.A.(N.S.)  998,  60  S.  E.  851,  holding  agreement  between  guar- 
dian and  surety  against  public  policy  where,  to  obtain  a  surety,  guardian  agreed 
to  deposit  trust  funds  in  bank  designated  by  surety  subject  to  withdrawal  only 
on  joint  order  of  the  parties;  Steele  v.  Leopold,  135  App.  Div.  255,  120  N.  Y.  Supp. 
569,  holding  cause  of  action  to  recover  administration  money  invested  without 
authority  before  time  for  presentment  of  claims  and  accounting  by  adminis- 
trator whose  capacity  is  that  of  trustee  after  accounting  is  in  the  administrator 
in  that  capacity  and  not  in  him  in  capacity  of  trustee. 

Cited  in  note  (4  L.  R.  A.  746)  on  trust  funds  as  impressed  with  trust  obliga- 
tions. 

Distinguished  in  Miles  v.  Pike  Min.  Co.  124  Wis.  285,  102  N.  W.  555,  holding 
acceptance  of  claims  against  estate  which  estate  is  not  liable  for,  not  to  be  wrong- 
ful in  absence  of  fraudulent  intent. 
Husiiifss  purposes. 

Cited  in  Re  Myers,  131  N.  Y.  415,  30  N.  E.  135,  holding  that  the  use  of  trust 
funds  in  stock  brokerage  is  unauthorized ;  Re  Cozzens,  2  Connoly,  630,  39  N.  Y.  S. 
R.  391,  15  N.  Y.  Supp.  771,  holding  knowing  employment  of  trust  fund  in  busi- 
ness, with  only  promissory  note  for  security,  devastavit;  English  v.  Mclntyre,  29 
App  Div.  447,  51  N.  Y.  Supp.  697,  holding  trustee's  fund  not  for  speculation  when 
expenses  discretionary  and  trustee  residuary  legatee  upon  cestui's  prior  death; 
Warren  v.  Union  Bank,  157  N.  Y.  268,  43  L.  R.  A.  260,  68  Am.  St.  Rep.  777,  51 
N.  E.  1036,  holding  general  guardian  cannot  engage  ward's  capital  or  credit  in 
business;  Re  Burr,  48  Misc.  69,  96  N.  Y.  Supp.  225,  holding  a  loan  of  administra- 
tion money  made  three  months  after  testator's  death  due  in  one  year  and  paid 
twelve  months  after  due  a  breach  of  trust. 
Trust  nature. 

Cited  in  Wiggins  v.  Stevens,  33  App.  Div.  88,  53  N  .Y.  Supp.  90,  holding  cestui 
que  trust  may  follow  trust  moneys  into  bank's  assets,  where  received  with 
knowledge  of  trust. 

Distinguished  in  Washburn  v.  Benedict,  46  App.  Div.  489,  61  N.  Y.  Supp.  387, 
holding    executor    with    unrestricted    management    of    personalty    may    sell    and 
transfer  security  in  which  invested. 
Essentiality  of  damage   to  action   of  deceit. 

Cited  in  Aron  v.  De  Castro,  36  N.  Y.  S.  R.  718,  13  N.  Y.  Supp.  372,  holding 
damage  essential  in  equity  to  rescinding  sale  fraudulently  procured;  Hewlett  v. 
Saratoga  Carlsbad  Spring  Co.  84  Hun,  252,  32  N.  Y.  Supp.  697,  holding  evidence 
of  no  loss  competent  upon  right  to  equitable  relief  for  fraud;  Tregner  v.  Hazen, 
116  App.  Div.  832,  102  N.  Y.  Supp.  139,  holding  recovery  may  not  be  had  for 
fraud  unless  damage  therefrom  be  alleged  and  proved. 

Cited  in  notes  (6  L.  R.  A.  573,  8  L.  R.  A.  787)  on  damnum  absque  injuria. 

2  L.  R.  A.  648,  BEVERIDGE  v.  NEW  YORK  ELEV.  R.  CO.  112  X.  Y.  1,  19  N.  E. 

489. 
AVIn'ii   judgment  not  res  jndicata  between  defendants. 

€ited  in  Warren  v.  Boston  &  M.  R.  Co.  163  Mass.  486,  40  N.  E.  895,  and  O'Con- 
nor v.  New  York  &  Y.  Land  Improv.  Co.  8  Misc.  245,  28  N.  Y.  Supp.  544.  holding 
judgment  not  res  judicata  as  to  defendants  not  joined  in  interest,  and  between 
•whom  no  issue  litigated;  Ellis  v.  Cole,  105  App.  Div.  56,  94  N.  Y.  Supp.  1031 
(dissenting  opinion)  on  judgment  as  being  res  judicata  in  an  action  between  de- 
fendants only  where  issue  of  trial  was  contested  in  the  action  where  both  parties 
were  defendants;  Maneely  v.  New  York,  119  App  Div.  391,  105  X.  Y.  Supp.  976, 
on  judgment  against  plaintiff  in  favor  of  one  defendant  as  not  being  res  judicata 
in  an  action  between  defendants  unless  answer  in  the  former  action  was  served 


357  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A    6J8 

on  the  other  defendant  therein;  Com.  v.  Newton,  186  Mass.  291,  71  N.  E.  699, 
holding  that  a  judgment  in  action  in  which  no  cross  bill  filed  between  defendants 
to  settle  their  rights  5s  not  res  judicata  in  a  later  action  on  those  rights;  Penn- 
sylvania Steel  Co.  v.  Title  Guarantee  &  T.  Co.  50  Misc.  58,  100  N.  Y.  Supp.  299, 
holding  judgment  against  several  defendants  may  not  determine  rights  as  between 
themselves  unless  such  rights  are  put  in  issue  by  pleadings  or  cross  bill. 
Railroad  corporation,  rig-lit  to  lease. 

Cited  in  Prospect  Park  &  C.  I.  R.  Co.  v.  Brooklyn  B.  &  W.  E.  R.  Co.  84  Hun, 
518,  32  N.  Y.  Supp.  857;  Re  Brooklyn  Elev.  R.  Co.  v.  Xagel,  75  Hun,  591,  27  N.  Y. 
Supp.  669;  Roosa  v.  Brooklyn  Heights  R.  Co.  28  Misc.  387,  59  N.  Y.  Supp.  604, 
holding  power  of  railroad  corporation  to  contract  for  use  of  road  involves  right 
to  lease;  Ingersoll  v.  Nassau  Electric  R.  Co.  157  N.  Y.  477,  43  L.  R.  A.  245,  52  N. 
E.  545  (dissenting  opinion),  majority  holding  right  to  contract  for  use  of  tracks 
not  subject  to  consent  of  abutting  owners;  Wormser  v.  Metropolitan  Street  R.  Co. 
98  App.  Div.  37,  90  N.  Y.  Supp.  714,  holding  a  lease  of  one  railway  to  another 
company  maybe  made  under  statute  for  an  indefinite  term  of  years;  Re  Inter- 
borough-Metropolitan  Co.  125  App.  Div.  805,  110  N.  Y.  Supp.  186,  holding  the 
stock  corporation  laws  prohibiting  combinations  in  restraint  of  trade  does  not 
prohibit  the  leasing  of  competing  and  parallel  railroads;  Townsend  v.  Chicago 
Union  Traction  Co.  1  111.  C.  C.  352,  on  the  general  power  of  board  of  directors 
of  a  street  railway  corporation  to  lease  its  lines. 

Cited  in  footnote  to  Van  Steuben  v.  Central  R.  Co.  34  L.  R.  A.  577,  which  holds 
unauthorized  lease  of  railroad  void. 

Distinguished  in  Durfee  v.  Johnstown,  G.  &  K.  Horse  R.  Co.  71  Hun,  282,  24 
N.  Y.  Supp.  1016,  holding  power  of  railroad  corporation  to  lease  to  another  does 
not  authorize  lease  to  individual. 
Stockholder  ivithunt  title  to  undivided  earnings. 

Cited  in  Spooner  v.  Phillips,  62  Conn.  73,  16  L.  R.  A.  467,  24  Atl.  524,  holding 
one  entitled  to  income  from  stock  has  no  title  to  undivided  earnings  for  which 
increased  stock  issued;  Roberts  v.  Roberts-Wicks  Co.  184  N.  Y.  267,  3  L.R.A 
(N.S.)  1038,  112  Am.  St.  Rep.  607,  77  N.  E.  13,  6  A.  &  E.  Ann.  Cas.  213,  on 
surplus  applicable  to  dividends;  Robertson  v.  de  Brulatour,  188  N.  Y.  314,  80 
N  E.  938,  holding  a  transfer  of  earnings  and  income  from  income  fund  to  a  new 
account  by  bond  declaring  that  payment  thereon  should  be  made  to  stockholders, 
not  a  setting  aside  as  dividends,  until  passage  of  resolution  for  payment  of  bonds 
by  treasurer. 
Action  on  agreement  l>y  one  not  party. 

Cited  in  Carrier  v.  United  Paper  Co.  73  Hun,  290,  26  N.  Y.  Supp.  414,  holding- 
mortgagee  cannot  recover  from  grantee  assuming  mortgage  when  grantor  not 
liable;  Marklove  v.  Utica,  C.  &  B.  R.  Co.  48  Misc.  258,  96  N.  Y.  Supp.  792,  holding 
a  guaranty  of  income  to  city  for  public  aid  exacted  from  lessee  railroad  company 
by  lessor  company  is  enforceable  by  the  city. 

Distinguished  in  Merritt  v.  Booklover's  Library,  89  App.  Div.  456,  85  N.  Y. 
Supp.  797,  holding  assignee  of  contract  to  supply  horses  and  wagons  to  deliver 
merchandise  may  enforce  it. 
Beneficial  intent  must  appear. 

Cited  in  O'Beirne  v.  Allegheny  K.  R.  Co.  151  N.  Y.  384,  45  N.  E.  873,  holding 
bondholder  may  enforce  mortgage  made  to  trustee  for  his  benefit;  Spingarn  v. 
Rosenfeld,  4  Misc.  525,  24  N.  Y.  Supp.  733,  holding  partnership  agreement  to  as- 
sume indebtedness  for  merchandise  contributed  by  partner  enforceable  by  cred- 
itor; Riordan  v.  First  Presby.  Church,  6  Misc.  87,  26  N.  Y.  Supp.  38,  holding 
agreement  to  "pay  for  attendance  in  case  of  illness"  inures  to  benefit  of  one 


2  L.R.A.  648]  L.  E.  A.  CASES  AS  AUTHORITIES.  358 

thereafter  furnishing  it;  Street  v.  Goodale,  77  Mo.  App.  321,  holding  promise  by 
"bank  to  customer  to  pay  checks  will  not  support  action  by  payee;  Ireland  v. 
United  States  Mortg.  &  T.  Co.  72  App.  Div.  100,  76  N.  Y.  Supp.  177,  holding 
agreement  by  lessee's  agent  to  pay  rent  out  of  income  not  intended  for  benefit 
of  lessor;  Martin  v.  Peet,  92  Hun,  138.  36  N.  Y.  Supp.  554,  holding  agreement 
"to  indemnify"  not  "to  pay  debts,"  does  not  inure  to  benefit  of  creditor;  Feist 
v.  SchifTer,  79  Hun,  277,  29  N.  Y.  Supp.  423,  holding  promise  to  indemnify  de- 
fendant not  intended  for  benefit  of  judgment  creditor. 

Distinguished  in  Anthony  v.  American  Glucose  Co.  49  X.  Y.  S.  R.  862,  21  X.  Y. 
Supp.  667,  holding  action  maintainable  by  stockholder  on  consolidation  agreement 
providing  for  issuance  of  stock  to  stockholders  of  constituent  companies. 
Corporate   powers   exereisable  l>y   directors. 

Followed  in  Petrie  v.  Mutual  Ben.  L.  Ins.  Co.  92  Minn.  496,  100  X.  W.  236,  on 
authority  of  directors  of  corporation  to  carry  out  corporate  powers. 

Cited  in  Flynn  v.  Brooklyn  City  R.  Co.  9  App.  Div.  275,  41  X.  Y.  Supp.  566, 
holding  powrer  of  railroad  company  to  lease  exercisable  by  directors  without  as- 
sent of  stockholders;  Vanderpoel  v.  Gorman,  140  X.  Y.  576,  24  L.  R.  A.  552.  37 
Am.  St.  Rep.  601,  35  X.  E.  932,  holding  assignment  corporate  act  performable 
under  authority  of  directors  in  absence  of  statute  or  by-law  providing  otherwise ; 
Schaefer  v.  Scott,  40  App.  Div.  439,  57  X.  Y.  Supp.  1035,  holding  general  assign- 
ment by  president  invalid,  power  of  management  being  committed  to  directors ; 
Skinner  v.  Walter  A.  Wood  Mowing  &  Reaping  Mach.  Co.  47  X.  Y.  S.  R.  507. 
20  X.  Y.  Supp.  251,  holding  corporation  can  terminate  contract  only  by  action 
of  trustees;  Louisville  Trust  Co.  v.  Louisville,  X.  A.  &  C.  R.  Co.  22  C.  C.  A.  395, 
43  U.  S.  App.  550,  75  Fed.  449,  holding  power  to  guarantee  bonds  may  be  exer- 
cised by  directors  without  stockholders'  consent;  Bayles  v.  Vanderveer,  11  Misc. 
211,  32  X.  Y.  Supp.  1117,  holding  directors  not  bound  to  comply  with  request  be- 
cause made  by  majority  stockholders;  Mosher  v  Sinnott,  20  Colo.  App.  464,  79 
Pac.  742,  holding  directors  to  have  power  to  sell  full  paid  treasury  stock  for 
market  value  though  such  value  is  below  par;  Yenner  v.  Chicago  City  R.  Co.  236 
111.  362,  86  X.  E.  266.  on  power  of  directors  to  exercise  any  powers  granted  to 
corporation  by  charter;  Mills  v.  United  States  Printing  Co.  99  App.  Div.  616, 
91  X.  Y.  Supp.  185,  holding  committee  of  management  appointed  by  board  of 
directors  to  have  authority  to  do  any  act  of  management  that  could  be  done  by 
board  itself;  People  ex  rel.  Manic'e  v.  Powell,  201  X.  Y.  200,  94  X.  E.  634,  holding 
that  powers  of  directors,  being  original  and  undelegated,  differ  from  those  of 
agents;  Robinson  v.  Xew  York,  W.  &  B.  R.  Co.  123  App.  Div.  356,  103  X.  Y. 
Supp.  91  (dissenting  opinion),  on  power  of  directors  to  make  contracts  authority 
for  which  is  vested  in  corporation  by  charter;  Schell  v.  Alston  Mfg.  Co.  149  Fed. 
442,  holding  a  declaration  of  dividends  from  surplus  within  discretionary  power 
of  directors  not  to  be  interfered  with  by  court. 
—  "What  justifies  Intervention  of  equity. 

Cited  in  Small  v.  Minneapolis  Electro  Matrix  Co.  32  X.  Y.  S.  R.  889,  10  X.  Y. 
Supp.  456..  holding  equity  will  not  enjoin  exercise  of  lawful  power  by  directors 
in  good  faith;  Lewisohn  Bros.  v.  Anaconda  Copper  Min.  Co.  26  Misc.  625,  56  X. 
Y.  Supp.  807,  holding  only  fraud  or  adverse  personal  interest  of  directors  justi- 
fies interference  in  determining  propriety  of  which  wishes  of  majority  stock- 
holders entitled  to  great  weight;  Gehrt  v.  Collins  Plow  Co.  156  111.  App.  103, 
holding  that  equity  will  not  order  directors  to  declare  dividend. 

Distinguished  in  part  in  Farmers'  Loan  &  T.  Co.  v.  Xew  York  &  X.  R.  Co  150 
X.  Y.  432,  34  L.  R.  A.  84,  55  Am.  St.  Rep.  689,  44  X.  E.  1043,  holding  equity  will 
not  permit  majority  stockholders  to  manipulate  corporate  affairs  to  injury  of 
minority. 


359  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  655 

Limited  in  Hennessy  v.  Muhleinan,  27  Misc.  233,  57  X.  Y.  Supp.  114,  holding 
stockholder  may  enjoin  lease  involving  practical  abandonment  during  its  term  of 
corporate  purposes. 

2  L.  R.  A.  G55,  KUXTZ  v.  SUMPTION,  117  Ind.  1,  19  N.  E.  474. 

Followed   without   special   discussion   in   Cleveland,   C.   C.  &   St.  L.  R.   Co.  v. 
Marion  County,  19  Ind.  App.  6G,  49  IS.  E.  51. 
Dae   process   of  law. 

Cited  in  Walsh  v.  State,  142  Ind.  363,  33  L.  R.  A.  394,  41  N.  E.  65,  with  state- 
ment  that  constitutional  defect  in  statute  from  nonrequirement  of  notice  had 
been  remedied  by  amendment;  Loesch  v.  Koehler,  144  Ind.  282,  35  L.  R.  A.  683, 
41  N.  E.  326,  holding  act  authorizing  humane  society  to  kill  injured  animal,  not 
providing  for  notice  to  owner,  unconstitutional:  McGavock  v.  Omaha,  40  Xeb. 
79,  58  X.  W.  543,  holding  law  giving  city  power  to  change  grades  must  provide 
for  notice,  which  must  be  given  as  prescribed;  Evansville  &  I.  R.  Co.  v.  Hays,  118 
Ind.  218.  20  X.  E.  736,  holding  assessments,  without  notice  by  board  of  equaliza- 
tion, invalid;  Campbell  v.  Monroe  County,  118  Ind.  120,  20  N.  E.  772,  holding 
notice  essential  in  reassessment  proceedings;  Scudder  v.  Jones,  134  Ind.  551,  32 
X*.  E.  221,  holding  assessment,  without  statutory  notice,  of  abutting  property  for 
improvement,  ineffective;  Kirsch  v.  Braun,  153  Ind.  261,  53  N.  E.  1082,  holding 
opportunity  for  hearing  of  parties  interested  necessary  to  sustain  assessments 
for  improvement;  Power  v.  Larabee,  2  X.  D.  153,  49  X.  W.  724,  holding  omis- 
sion of  equalization  board  to  meet  at  time  fixed  by  law  for  hearing  defeats  as- 
sessment; Strange  v.  Grant  County,  173  Ind.  644,  91  X.  E.  242,  holding  that 
statutory  provision  for  notice  of  highway  proceeding  and  for  assessment  of  dam- 
ages and  giving  opportunity  for  hearing  constitute  due  process  of  law;  Modern 
Loan  Co.  v.  Police  Ct.  12  Cal.  App.  593,  108  Pac.  56,  holding  right  of  police  court 
by  summary  action  to  take  property  from  possession  of  person  alleged  to  have 
stolen  it  and  give  it  to  another  not  allowing  possessor  to  be  heard  can  not  be 
sustained  by  rule  authorizing  taking  of  property  without  notice  by  summary 
process  for  general  welfare  and  also  citing  annotation  on  that  point;  Railroad 
Comrs  v.  Columbia,  N.  &  L.  R.  Co.  82  S.  C.  422,  64  S.  E.  240,  holding  that  statute 
is  not  a  taking  of  property  without  due  process  of  law,  requiring  railroad  com- 
missioners to  start  action  against  any  company  failing  on  60  days  notice  to  adopt 
suggestion  for  extension  of  operations  where  constitutional  notice  and  opportunity 
for  a  hearing  are  embodied  in  the  laws  under  which  the  commission  acts. 

Cited  in  footnotes  to  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  17  L.  R.  A.  286,  which 
holds  valid  act  authorizing  attorneys'  fees  against  railroad  corporations  in  suits 
on  claims;  Carleton  v.  Rugg,  5  L.  R.  A.  193,  which  holds  statute  authorizing  in- 
junction against  liquor  nuisance  does  not  unlawfully  deprive  of  property  or 
privileges;  State  v.  Sponaugle,  43  L.  R.  A.  727,  which  sustains  forfeiture  of  land 
for  five  years'  failure  to  enter  for  taxation;  Davis  v.  St.  Louis  County,  33  L.  R. 
A.  432,  which  holds  void  act  authorizing  location  and  marking  of  section  corners 
without  notice  to  persons  to  be  assessed  for  cost  of  same;  Branson  v.  Gee,  24  L. 
R.  A.  355,  which  holds  act  authorizing  taking  of  gravel  from  private  lands  with- 
out notice  for  highway  repairs  valid. 

Cited  in  notes   (3  L.  R.  A.  194,  11  L.  R.  A.  296)   on  constitutional  protection 
of  property  rights;    (4  L.  R.  A.  724,  5  L.  R.  A.  359,   11  L.  R.  A.  224)   on  due 
process  of  "law:    (11   L.  R.  A.  225)    on  due  process  of  law;   necessity  of  oppor- 
tunity for  hearing;   (20  Am.  St.  Rep.  556)  on  due  process  of  law. 
Assessment  proceedings,  what  notice  sufficient. 

Cited  in  Tucker  v.  Sellers,  130  Ind.  519,  30  X.  E.  531,  holding  notice  of  original 
assessment  does  not  validate  second  assessment;  Eaton  v.  Union  County  Xat. 


2  L.R.A.  655]  L.  R.  A.  CASES  AS  AUTHORITIES.  360 

Bank.  141  Ind.  163,  40  X.  E.  (193.  holding  appearance  of  one  subpoenaed  as  witness 
before  tax  board  not  waiver  of  statutory  notice;  Adams  v.  Shelbyville,  154  Ind. 
545,  49  L.  R.  A.  825.  57  X.  E.  114.  77  Am.  St.  Rep.  484  (dissenting  opinion;,  ma- 
jority holding  act  providing  for  hearing  of  persons  aggrieved  impliedly  author- 
izes assessment  for  improvements  conforming  to  benefits;  Pulaski  County  v.  Senn,. 
117  Ind.  413,  20  N.  E.  276;  Hubbard  v.  Goss,  157  Ind.  487,  62  X1.  E.  36,  holding- 
requirement  of  special  notice  of  change  of  assessment  of  individual  does  not  apply 
to  general  order  of  equalization;  Klein  v.  Tuhey.  13  Ind.  App.  76,  40  X.  E. 
144,  holding  general  notice  by  publication,  as  prescribed  by  statute,  of  hearing 
on  proposed  improvement,  validates  assessment ;  Barber  Asphalt  Paving  Co.  v. 
Edgerton,  125  Ind.  463,  25  N.  E.  436,  holding  substantial  compliance  with  statute 
requiring  notice  of  proposed  improvement  validates  assessment  of  abutting  own- 
ers: McEneney  v.  Sullivan,  125  Ind.  409,  25  X.  E.  540,  holding  notice  to  abutting 
owners  to  make  objection  to  street  improvement  authorizes  assessment  therefor. 

Distinguished  in  Hyland  v.  Brazil  Block  Coal  Co.  128  Ind.  340,  26  X.  E.  672, 
holding  no  notice  to  corporation  required  of  meeting  of  board  directed  by  law 
to  value  and  assess  corporation  property;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v. 
Backus,  133  Ind.  538,  18  L.  R.  A.  741,  33  X.  E.  421,  and  Smith  v.  Rude  Bros. 
Mfg.  Co.  131  Ind.  153,  30  N.  E.  947,  holding  law  requiring  statement  by  corpora- 
tion to  be  presented  to  board  directed  to  assess  capital  stock  sufficient  notice. 
IVotice  not  authorized  by  law,  no  notice. 

Cited  in  Cummings  v.  Stark,  138  Ind.  101,  34  N.  E.  444.  holding  notice  by 
state  tax  board,  not  authorized  by  law,  not  legal  notice  validating  assessment; 
Terre  Haute  &  I.  R.  Co.  v.  Baker,  122  Ind.  441,  24  X.  E.  83,  holding  notice  not 
authorized  by  law  cannot  give  court  jurisdiction;  United  States  v.  American 
Lumber  Co.  80  Fed.  313,  holding  service  of  subpoena  outside  of  court's  jurisdic- 
tion no  notice. 

Constitutionality  of  law  not  expressly  providing  for  notice  of  assess- 
ment. 

Disapproved,  in  effect,  in  Allman  v.  District  of  Columbia,  3  App.  D.  C.  25, 
holding  notice  necessary  to  validate  assessment  for  street  need  not  be  provided  for 
in  act;  Carroll  v.  Alsup,  107  Tenn.  277,  64  S.  W.  193,  holding  statute  fixing  time 
and  place  of  meeting  of  equalization  board  sufficient  notice  to  validate  change 
in  individual  assessment. 
Powers  of  board  of  equalization. 

Cited  in  Satterwhite  v.  State,  142  Ind.  20,  40  N.  E.  654  (dissenting  opinion), 
majority  holding  that  equalization  board  may  require  witness  to  testify  in  pre- 
liminary examination  before  giving  notice  of  assessment  to  taxpayer;  Jones  v. 
Rusliville  Xatural  Gas  Co.  135  Ind.  598,  35  N.  E.  390,  holding  board  of  equaliza- 
tion quasi- judicial  tribunal  whose  assessment  of  corporation  stock  is  binding. 
Legislature  cannot  confer  judicial  powers. 

Cited  in  State  ex  rel.  Hovey  v.  Xoble,  118  Ind.  355,  4  L.  R.  A.  105,  10  Am.  St. 
Rep.  143.  21  N.  E.  244,  holding  legislature  cannot  confer  judicial  powers; 
Smythe  v.  Boswell,  117  Ind.  366,  20  X.  E.  263,  holding  powers  of  courts  derived 
from  Constitution,  not  from  legislature;  State  v.  Runyan,  130  Ind.  209,  29  X.  E. 
779,  holding  town  trustee  not  judicial  officer;  therefore  presentation  of  false  affi- 
davit to  him  not  perjury;  Langenberg  v.  Decker,  131  Ind.  480,  16  L.  R.  A.  113, 
31  X.  E.  190,  holding  board  of  tax  commissioners  quasi-judicial  body,  on  which 
power  to  punish  for  contempt  not  conferrable;  Ellis  v.  Steuben  County,  153  Ind. 
92.  54  X.  E.  382,  holding  statute  requiring  exercise  of  judgment  and  discretion- 
by  ministerial  officer  not  unconstitutional  as  imposing  judicial  functions. 


361  L.  R.  A.  CASKS  AS  AUTHORITIES.  [2  L.R.A.  302 

2  L.  R.  A.  659,  LEE  v.  SIMPSON,  37  Fed.  12. 

Final  hearing,  39  Fed.  235,  which  was  affirmed  in  134  U.  S.  572,  33  L.  ed.  1038, 
10  Sup.  Ct.  Rep.  631. 
Execution  of  power  of  appointment. 

Cited  in  Lee  v.  Simpson,  39  Fed.  240,  holding  power  of  appointment  by  will 
executed  by  reference  thereto  followed  by  general  bequest. 
Right  to  follow  trust  funds. 

Cited  in  footnote  to  Central  Stock  &  Grain  Exchange  v.  Bendinger,  56  L.  R. 
A.  875,  which  holds  broker  liable  to  refund  to  principal  money  illegally  taken 
from  agent  as  margins  on  gambling  transaction. 

2  L.  R.  A.  662,  GILPATRICK  v.  GLIDDEN,  81  Me.  137,  10  Am.  St.  Rep.  245,  16 
Atl.  464. 

Second  appeal,  82  Me.  202,  19  Atl.  166. 
•Resulting   trusts. 

Cited  in  Cross  v.  Bean,  83  Me.  64.  21  Atl.  752,  holding  legal  title  of  land  sub- 
ject to  trust  in  favor  of  vendee,  except  in  hands  of  bona  fide  purchaser  for  value; 
Von  Trotha  v.  Bamberger,  15  Colo.  10,  24  Pac.  883,  holding  resulting  trust  may 
"be  established  by  parol  where  legal  title  held  in  fraud  of  equitable  owner;  Ahrens 
v.  Jones,  169  N.  Y.  561,  88  Am.  St.  Rep.  620,  62  N.  E.  666,  holding  property  con- 
veyed on  promise  of  grantee  to  pay  sum  to  third  person  impressed  with  trust; 
Grant  v.  Bradstreet,  87  Me.  596,  33  Atl.  165,  holding  promise  to  pay  annuity 
inducing  decedent  not  to  make  will  enforceable  in  equity;  Ransdel  v.  Moore,  153 
Ind.  408,  53  L.  R.  A.  759,  53  N.  E.  767,  holding  property  impressed  with  trust 
where  heir,  by  promising  to  convey,  prevents  disposal  by  decedent;  Lawrence  v. 
Oglesby,  178  111.  129,  52  N.  E.  945,  holding  promise  by  beneficiary  in  will  previ- 
ously made  to  pay  sum  of  money,  enforceable;  Amherst  College  v.  Ritch,  151  N. 
Y.  323,  37  L.  R.  A.  321,  45  N.  E.  876,  Affirming  10  Misc.  523,  31  N.  Y.  Supp. 
885,  holding  promise  to  dispose  of  bequest  as  indicated  by  testator  creates 
trust;  Cassels  v.  Finn,  122  Ga.  36,  68  L.R.A.  82,  106  Am.  St.  Rep.  91,  49  S.  E. 
749,  2  A.  &  E.  Ann.  Cas.  554,  holding  in  the  absence  of  fraud  that  failure  of 
devisee  for  benefit  of  another  to  perform  an  oral  promise  does  not  raise  a  trust 
>ex  maleficio  the  promisor  being  sole  heir  at  law  also;  Mead  v.  Robertson,  131  Mo 
App.  192,  110  S.  W.  1095;  Gemmel  v.  Fletcher,  76  Kan.  594,  92  Pac.  713,— holding 
equity  will  enforce  by  raising  a  trust,  an  oral  promise  to  stand  seized  for  use  of 
another  where  such  promise  was  the  fraudulent  means  of  obtaining  or  retaining 
legal  title  to  the  subject  of  promise;  Chase  y.  Chase,  191  Mass.  562,  78  N.  E.  115. 
holding  the  remedy  to  be  in  equity  where  in  an  absolute  devise  to  one  son,  oral 
•evidence  will  show  that  a  share  was  intended  for  another  son;  Benbrook  v.  Yancey, 
96  Miss.  543,  51  So.  461,  holding  that  devisee  will  be  adjudged  to  hold  in  trust 
•property  devised  to  her  on  her  promise  to  convey  share  to  others;  Winder  v., 
Scholey,  83  Ohio  St.  217,  33  L.R.A.  (X.S  )  1003,  93  N.  E.  1098,  21  Ann.  Cas.  1379, 
holding  that  equity  will  declare  absolute  legatee  a  trustee  ex  maleficio,  where 
he  had  promised  testator  to  turn  over  legacy  to  lodge;  Schmeringer  v.  Schmerin- 
ger,  81  Neb.  666,  116  X.  W.  491,  holding  equity  will  raise  a  trust  ex  maleficio 
where  husband  obtains  conveyance  of  dying  wife's  property  on  oral  promise  that 
he  will  devise  it  to  demented  child  and  care  for  him  during  life;  Graves  v.  Graves, 
5  Silv.  Sup.  Ct.  542,  9  N.  Y.  Supp.  145,  holding  to  raise  a  trust  ex  maleficio  the 
frau.l  must  be  clearly  proven:  Tyler  v.  Stitt,  132  Wis.  662,  12  L.R.A.(N.S.)  1090, 
122  Am.  St.  Rop.  1012,  112  X.  W.  1091,  holding  that  in  order  to  create  a  trust 
ex  maleficio  in  favor  of  an  intended  beneficiary  it  must  be  shown  that  the  deced- 
ent relied  on  the  fraudulent  representation  of  the  trustee 


2  L.R.A.  662]  L.  R.  A.  CASES  AS  AUTHORITIES.  362 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Shepard,  58  L.  R.  A.  115,  which 
holds  implied  trust  arises  in  favor  of  grantor  reserving  right  of  action  against 
elevated  railroad  for  damages  to  property,  against  subsequent  purchaser  re- 
covering such  damages. 

Cited  in  notes  (20  L.R.A.  467)  on  gifts  by  will  as  affected  by  promises  made 
to  testator;  (8  L.R.A.(N.S-)  699,  703)  on  constructive  trust  from  fraud  in  frus- 
trating decedent's  intention  to  give  property  to  third  person;  (106  Am.  St.  Rep. 
96,  97,  98)  on  heir,  devisee  or  legatee  as  trustee  ex  maleficio. 

Distinguished  in  Whitehouse  v.  Bolster,  95  Me.  463,  50  Atl.  240,  holding  assent 
of  heir  to  proposed  disposition  of  property  creates  no  trust  where  decedent  did 
not  rely  thereon;  Orth  v.  Orth,  145  Ind.  197,  32  L.  R.  A.  306,  57  Am.  St.  Rep. 
185,  42  N.  E.  277,  holding  parol  promise  by  beneficiary  of  will  to  carry  out 
testator's  wishes  does  not  create  trust. 

Not  followed  in  Moore  v.  Campbell,   102  Ala.  450,   14  So.  780,  holding  parol 
trust  not  enforceable  against  real  property  devised. 
Enforceability  of  verbal  agreements  within   statute  of   frauds. 

Cited  in  Hallowell  Nat.  Bank  v.  Marston,  85  Me.  493,  27  Atl.  529,  holding  in- 
dorser  estopped  by  conduct  to  assert  invalidity  of  waiver  of  protest  not  in  writing. 

Cited  in  note  (5  L.  R.  A.  245)  on  enforceability  of  verbal  contract  for  exchange 
of  lands. 
Facts  found  J>y  trial  court  prevail  in  appellate. 

Cited  in  Gardiner  Sav.  Inst.  v.  Emerson,  91  Me.  539,  40  Atl.  551,  and  Cross  v. 
Bean,  83  Me.  63,  21  Atl.  752,  holding  findings  of  fact  by  trial  judge  prevail,  un- 
less clearly  shown  erroneous;  Herlihy  v.  Coney,  99  Me.  472,  59  Atl.  952.  holding 
on  an  appeal  in  equity  the  judgment  of  the  presiding  justice  as  to  facts  will 
be  affirmed  unless  it  appear  to  be  clearly  wrong. 

2  L.  R.  A.  667,  PHENIX  INS.  CO.  v.  FIRST  NAT.  BANK,  85  Va.  765,  17  Am. 

St.  Rep.  101,  8  S.  E.  719. 
Right  of  subrogated  insurer. 

Cited  in  Baker  v.  Monumental  Sav.  &  L.  Asso.  58  W.  Va.  414,  3  L.R.A.  (X.S.) 
83,  112  Am.  St.  Rep.  996,  52  S.  E.  403,  holding  insurer  of  property  on  which 
insured  has  a  lien  is  subrogated  to  rights  of  assured  in  payment  of  amount  of 
lien  in  a  loss. 

Cited  in  footnote  to  New  Hampshire  F.  Ins.  Co.  v.  National  L.  Ins.  Co.  57  L. 
R.  A.  692,  which  denies  right  of  insurer,  subrogated  to  mortgagee's  claims  against 
mortgagor,  to  insist  on  charging  mortgagee,  retaining  more  than  its  share  from 
other  policy,  with  amount  paid  to  mortgagor. 

Cited  in  notes   (44  Am.  St.  Rep.  734)   on  subrogation  of  insurer;    (   3  L.R.A. 
(N.S.)  80)  on  right  of  insurer  to  subrogation  on  payment  of  mortgage  debt  from 
insurance  on  mortgagee's  interest. 
Interest  of  mortgagor  in  insurance  by  mortgagee. 

Cited  in  note  (11  L.R.A.(N.S-)  144)  on  interest  of  mortgagor  in  insurance  se- 
cured by  mortgagee  for  own  protection. 

2  L.  R.  A.  668,  KERR  v.  LUNSFORD,  31  W.  Va.  659,  8  S.  E.  403. 
Burden  of  proof. 

Cited  in  Seebrock  v.  Fedawa,  30  Neb.  433,  46  N.  W.  650,  holding  burden  of 
proving  testator's  sanity  is  upon  proponent;  Eakin  v.  Hawkins,  52  W.  Va.  126, 
43  S.  E.  211,  holding  burden  is  on  attacking  parties  to  show  insanity  of  grantor 
in  deed. 


363  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  668 

Interest  of  witness. 

Cited  in  Trowbridge  v.  Stone,  42  W.  Va.  458.  26  S.  E.  363,  holding  testimony  of 
interested  nonexpert  witnesses  inadmissible  as  to  mental  capacity  to  do  valuable 
labor. 

Distinguished  in  Coffman  v.  Hendrick,  32  W.  Va.  125,  9  S.  E.  65,  holding  wit- 
ness unprovided  for  in  will,  who  would  inherit  in  its  absence,  may  testify  in  its 
support. 
Opinion  of  witness. 

Cited  in  State  v.  Musgrave.  43  W.  Va.  684,  28  S.  E.  813,  holding  opinion  of 
witness  on  question  within  common  knowledge  or  experience  inadmissible;  Shep- 
herd v.  Snodgrass.  47  W.  Va.  83.  34  S.  E.  879,  holding  opinion  of  nonexpert  wit- 
ness of  slight  value  unless  coupled  with  facts  sustaining  it;  Aultman  Co.  v. 
Ferguson,  8  S.  D.  464,  66  N.  W.  1081.  holding  expert  witness  cannot  state  value 
of  article  based  on  description  of  it ;  Ward  v.  Brown,  53  W.  Va  262,  44  S.  E.  488, 
holding  an  instruction  giving  under  prominence  and  weight  to  opinions  of  wit- 
nesses not  experts  and  unsupported  by  good  reasons  and  facts  is  objectionable. 

Cited  in  notes   (36  L.  R.  A.  70)   on  opinions  as  to  testamentary  capacity;    (38 
L.  R.  A.  729)  as  to  who  may  give  testimony  as  to  mental  capacity;    (36  L.  R.  A. 
68)    on  testimony  of  expert  witness  as  to  testator's  sanity;    (42  L.  R,  A.  766) 
on  weight  of  expert  testimony. 
Hypothetical  questions. 

Cited  in  State  v.  Privitt,  175  Mo.  226,  75  S.  W.  45Y,  sustaining  hypothetical 
question,  in  accordance  with  counsel's  theory,  leaving  out  essential  ingredients 
in  case;  Taylor  v.  Taylor,  174  Ind.  679.  93  X.  E.  9,  holding  that  party  may  put 
his  hypothetical  case  as  he  claims  it  to  be  proved,  or  within  reasonable  infer- 
ences from  evidence  and  jury  determines  whether  it  is  sufficiently  supported 
by  evidence;  State  v.  Cook,  69  W.  Va.  728,  72  S.  E.  1025,  holding  that  state 
may  ask  of  doctors  hypothetical  questions  assuming  as  inferable  from  evidence 
that  defendant  was  jealous  of  deceased  and  his  wife. 

Cited  in  note  (39  L.  R.  A.  313,  314)  on  hypothetical  statements  or  questions. 
Error  in  excluding  evidence. 

Cited  in  Tower  v.  Whip,  53  W.  Va.  162,  63  L.  R.  A.  945,  44  S.  E.  179,  holding 
rejection  of  admissible  evidence  error. 
Reversal  for  illegal   evidence. 

Cited  in  Taylor  v.  Baltimore  &  O.  R.  Co.  33  W.  Va.  58,  10  S.  E.  29,  holding 
erroneous  admission  of  evidence  not  prejudicial  not  ground  for  reversal ;  Bartlett 
v.  Patton,  33  W.  Va.  83,  5  L.  R.  A.  529,  10  S.  E.  21,  holding  improper  evidence 
does  not  justify  reversal  when  other  testimony  requires  verdict  given ;  Michaelson 
v.  Cautley,  45  W.  Va.  542,  32  S.  E.  170,  holding  judgment  will  be  reversed  if 
illegal  evidence  admitted  may  have  been  prejudicial. 
Evidence  of  attesting  witnesses  as  to  testator's  sanity. 

Cited  in  Stewart  v.  Lyons,  54  W.  Va.  676,  47  S.  E.  442,  giving  peculiar  weight 
to  evidence  of  witnesses  present,  at  execution  of  will  and  especially  to  evidence 
of  attesting  witnesses;  McPeck  v.  Graham,  56  W.  Va  204,  49  S.  E.  125.  on 
weight  to  be  given  to  the  opinion  of  nonexpert  witnesses  as  to  the  mental  condi- 
tion of  a  person. 

Cited  in  notes  (38  L.  R.  A.  746)  as  to  evidence  of  attesting  witnesses  as  to 
testamentary  capacity;  (39  L.  R.  A.  720)  as  to  weight  of  opinion  of  attesting 
witness  as  to  testamentary  capacity;  (77  Am.  St.  Rep.  478)  on  competency  of 
subscribing  witnesses  to  wills  and  effect  of  their  evidence  in  support  of  or 
opposition  to  will. 


2  L.R.A.  668]  L.  E.  A.  CASES  AS  AUTHORITIES.  364 

Distinguished  in  Ward  v.  Brown,  53  W.  Va.  255,  44  S.  E.  488,  holding  instruc- 
tion that  evidence  of  attesting  witnesses,  testifying  against  testator's  sanity,  is 
entitled  to  peculiar  weight,  erroneous. 
Capacity  to  make  deed. 

Cited  in  Dean  v.  Dean,  42  Or.  298,  70  Pac.   1039,  holding  greater  degree  of 
mental  capacity  required  to  make  deed  than  to  execute  will ;   Eakin  v.  Hawkins, 
52  W.  Va.  127,  43  S.  E.  211,  holding  feebleness  of  mind  will  not  invalidate  deed 
of  grantor  understanding  nature  of  act. 
Time  of  evidence  as  to  capacity. 

Cited  in  Martin  v.  Thayer,  37  W.  Va.  52,  16  S.  E.  489,  holding  testamentary 
capacity  determined  by  testator's   mental  condition    when    will    was    executed; 
Bever  v.  Spangler,  93  Iowa,  597,  61  X.  W.  1072,  holding  testimony  as  to  mental 
soundness  for  six  years  after  execution  of  will  admissible. 
Old  apre  not  proof  of  incapacity. 

Cited  in  Buckey  v.  Buckey,  38  W.  Va.  173,  18  S.  E.  383,  and  Bowdoin  College 
v.  Merritt,  75  Fed.  488,  holding  old  age  does  not  disqualify  one  to  execute  deed. 
Testamentary  capacity. 

Cited  in  Roller  v.  Kling,  150  Ind.  164,  49  1ST.  E.  948,  to  contention  that  testa- 
mentary capacity  depends  on  ability  to  know  and  understand,  and  not  on  actual 
knowledge;  Perkins  v.  Perkins,  116  Iowa.  260,  90  N.  W.  55,  holding  testamentary 
capacity  consists  in  understanding  nature  of  will  and  ability  to  recollect  proper- 
ty, objects  of  bounty,  and  manner  of  distribution;  Ward  v.  Brown.  53  W.  Va.  -2t>3. 
44  S.  E.  488,  holding  necessary  a  sufficiency  of  mind  and  memory  to  understand 
nature  of  his  act  and  recollect  property  which  he  wished  to  dispose  of,  to  whom, 
and  the  manner  in  which  he  meant  to  distribute  it. 

Cited  in  notes  (4  L.  R.  A.  738)  as  to  testamentary  capacity;  (12  L.  R.  A.  162) 
on  testamentary  capacity  as  affected  by  insane  delusion;  (27  L.R.A. (X.S.)  24.  25. 
34,  35,  47,  54,  92)  on  what  is  testamentary  capacity;  (140  Am.  St.  Rep  352) 
on  adjudication  of  insanity  or  existence  of  guardianship  as  showing  incapacity  to 
execute  contracts,  make  wills,  etc. 
Injference  of  undne  influence. 

Cited  in  footnotes  to  Re  Shell,  53  L.R.A.  387,  which  holds  undue  influence~in 
procuring  will  not  inferable  from  motive  and  opportunity  alone;  Kennedy  v. 
Dickey,  68  L.R.A.  317,  which  holds  will  not  annulled  for  undue  influence  by 
honest  and  moderate  intercession  cr  persuasion  unaccompanied  witli  fraud,,  deceit, 
threats,  or  putting  in  fear. 

Cited  in  note  (31  Am.  St.  Rep.  676,  680)  on  undue  influence  as  effecting  validity 
of  wills. 
Repetition  In  instructions. 

Cited  in  State  v.  Bingham,  42  W.  Va.  240,  24  S.  E.  883;  and  State  v.  Sheppard 
49  W.  Va.  611,  39  S.  E.  676,  holding  instruction  properly  refused  if  already  sub- 
stantially given;  State  v.  Huffman,  69  W.  Va.  776,  73  S.  E.  292;  Richards  v  River- 
side Iron  Works,  56  W.  Va.  524,  49  S.  E.  437, — holding  court  not  bound  to  repeat 
instruction  already  substantially  giA'en. 
Conformity  of  instructions  to  evidence. 

Cited  in  Carrico  v.  West  Virginia  C.  &  P.  R.  Co.  39  W.  Va.  101,  24  L.  R.  A.  55, 
19  S.  E.  571;  Fisher  v.  West  Virginia  &  P.  R.  Co.  39  \\.  Va.  373,  23  L.  R.  A.  761, 
19  S.  E.  578;  Bentley  v.  Standard  F.  Ins.  Co.  40  W.  Va.  747,  23  S.  E.  584;  Oliver 
v.  Ohio  River  R.  Co.  42  W.  Va.  723,  26  S.  E.  444,  —  holding  instructions  must  be 
based  on  facts  in  evidence;  State  v.  Hertzog,  55  W.  Va.  84,  46  S.  E.  792,  holding 
it  no  error  to  refuse  instruction  not  specially  adapted  to  nor  based  upon  facts  of 


365  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  680 

case  which  the  evidence  fairly  tends  to  prove;  Robinson  v.  Lowe,  56  W.  Va.  313, 
49  S.  E.  250,  holding  instruction  not  relevant  unless  there  is  evidence  tending 
to  prove  the  facts  on  which  the  instruction  is  based;  Kunst  v.  Graf  ton,  67  W.  Va. 
27,  26  L.R.A.(N.S-)  1205,  67  S.  E.  74,  holding  that  instruction  covering  case  not 
in  pleadings,  though  there  be  evidence  on  subject,  is  error. 
Reversible  error  in  charge. 

Cited  in  Kunst  v.  Grafton,  67  W.  Va.  27,  26  L.R.A.  ( N.S. )  1205,  67  S.  E.  74,  on 
erroneous  instruction  as  being  grounds  for  reversal  unless  it  clearly  appears  that 
the  rights  of  the  parties  have  not  been  injuriously  affected  thereby. 
Control  of  verdict  by  special  findings. 

Cited  in  Bess  v.  Chesapeake  &  O.  R.  Co.  35  W.  Va.  499,  29  Am.  St.  Rep.  820,  14 
S.  E.  234,  holding  inconsistent  special  findings  control  general  verdict;  Gilling- 
ham  v.  Ohio  River  R.  Co.  35  W.  Va.  601,  14  L.  R.  A.  803,  29  Am.  St.  Rep.  827,  14 
S.  E.  243,  holding  immaterial  special  finding  does  not  control  general  verdict; 
Peninsular  Land  Transp.  &  Mfg.  Co.  v.  Franklin  Ins.  Co.  35  W.  Va.  669,  14  S.  E. 
237,  holding  special  interrogatories  properly  refused  if  immaterial;  Bice  v.  Wheel- 
ing Electrical  Co  62  W.  Va.  695,  59  S.  E.  626,  on  rejection  of  interrogatory  as 
being  an  abuse  of  discretion  of  court,  where  affirmative  answer  thereto  would  be 
decisive  of  case. 
Interrogatories  consistent  tvith  verdict. 

Cited  in  Wheeling  Bridge  Co.  v.  Wheeling  &  Bridge  Co.  34  W.  Va.  170,  11  S 
E.  1009,  sustaining  refusal  of  interrogatories  calling  for  special  findings  con- 
sistent  with  general  verdict;  Peninsular  Land  Transp.  &  Mfg.  Co.  v.  Franklin 
Ins.  Co.  35  W.  Va.  669,  14  S.  E.  237,  holding  interrogatories  should  be  pro- 
pounded if  findings  would  be  inconsistent  with  general  verdict;  Pennington  v 
Gillaspie,  66  W.  Va.  659,  66  S.  E.  1009,  holding  it  error  to  refuse  to  submit  to 
jury  special  interrogatory  as  to  how  much  of  verdict  was  actual  and  how  much 
exemplary  damages. 
Review  of  discretion. 

Cited  in  McKelvey  v.  Chesapeake  &  O.  R.  Co.  35  W.  Va.  508,  14  S.  E.  261,  hold- 
ing court's  discretion  in  submitting  interrogatories  reviewable. 
Joining  incompatible  prayers  for  relief. 

Cited  in  Matliews  v.  Tyree,  53  W.  Va.  301,  44  S.  E.  526,  holding  probate  can- 
not be  affirmed  in  suit  to  construe  will,  to  which  heirs,  as  devisees,  are  parties: 
Ward  v.  Brown,  53  W.  Va.  232,  44  S.  E.  488.  holding  alleged  invalidity  of  be- 
quest does  not  affect  legatee's  right  to  appeal  from  decree  declaring  will  void; 
Day  v.  National  Mut.  Bldg.  &  L.  Asso.  53  W.  Va.  554,  44  S.  E.  779,  holding 
borrower  from  building  association  cannot  include  in  bill  to  have  his  stock  de- 
clared void  a  demand  for  appointment  of  receiver  in  interests  of  shareholders; 
Childers  v.  Milam,  68  W.  Va.  505,  70  S.  E.  118,  holding  that  establishment  of 
probate  of  another  paper  cannot  be  sought  in  suit  to  impeach  probate  of  will. 

Cited  in  note  (129  Am.  St.  Rep.  91)  on  construction  of  will  in  issue  of  devisavit 
vel  non. 
Xewspaper   comment. 

Cited  in  Copeland  v.  Wabash  R.  Co.  175  Mo.  683,  75  S.  W.  106,  holding  read- 
ing by  jurors,,  pending  trial  of  negligence  case,  of  newspaper  account  of  former 
trial  no  ground  for  reversal. 

2  L.  R.  A.  680,  PITTSBURG,  W.  &  K.  R.  CO.  v.  BENWOOD  IRON  WORKS,  31 

W.  Va.  710,  8  S.  E.  453. 
Km  i  urn  t    domain. 
Cited  in  Great  Western  Natural  Gas  &  Oil  Co.  v.  Hawkins,  30  Ind.  App.  567r 


2  L.R.A.  680]  L.  R.  A.  CASES  AS  AUTHORITIES.  366 

136  N.  E.  765,  holding  gas  company  cannot  condemn  land  for  pipe  line  without 
showing  it  is  furnishing  gas  for  public  use;  F.  B.  R.  Cemetery  Asso.  v.  Redd, 
33  W.  Va.  265,  10  S.  E.  405,  holding  application  to  condemn  land  for  cemetery 
must  distinctly  state  that  it  is  needed  for  public  use;  Board  of  Health  v.  Van 
Hoesen,  87  Mich.  539,  14  L.  R.  A.  116,  also  footnote  p.  114,  49  N.  W.  894,  which 
holds  power  of  eminent  domain  not  conferrable  on  rural  cemetery  corporation; 
New  Orleans  Terminal  Co.  v.  Teller,  113  La.  744,  37  So  624,  2  A.  &  E.  Ann.  Cas. 
127,  holding  the  defendant  in  expropriation  proceedings  may  always  raise  the 
question  of  whether  the  purpose  for  which  his  property  is  sought  is  public  in 
nature;  Hench  v.  Pritt,  62  W.  Va.  277,  125  Am.  St.  Rep.  966,  57  S.  E.  808,  holding 
a  legislative  act  attempting  to  confer  upon  the  lessees  of  timber  land  the  right 
of  eminent  domain  to  be  exercised  in  procuring  a  right  of  way  for  their  private 
-benefit  is  unconstitutional  and  void;  Miocene  Ditch  Co.  v.  Lyng,  70  C.  C.  A.  458, 
138  Fed.  546,  holding  a  complaint  to  condemn  a  right  of  way  for  a  water  pipe 
line  was  insufficient  where  no  clear,  positive  statement  that  the  property 
sought  to  be  condemned  was  necessary  for  a  public  use;  Elkins  Electric  R.  Co.  v. 
Western  Maryland  R  Co.  163  Fed.  732,  holding  one  railroad  company  could 
not  cross  the  road  of  another  company  or  at  any  point  without  its  consent  or  com- 
pensation. 

Cited  in  notes  (4  L.  R.  A.  785,  789,  792)  on  right- of  eminent  domain;  (7  L. 
R.  A.  152)  on  exercise  of  right  of  eminent  domain  a  political,  not  a  judicial, 
question;  (3  L.  R.  A.  176)  on  title  to  land  taken  for  public  use;  (11  L.  R.  A. 
286)  on  constitutional  protection  of  property  rights;  (22  L.R.A.(X.S-)  3,  51,  12], 
133)  on  judicial  power  over  eminent  domain;  (22  Am.  St.  Rep.  49)  on  eminent 
domain. 
What  constitutes  "public  nse." 

Cited  in  Kyle  v.  Texas  &  W.  0.  R.  Co.  3  Tex.  App.  Civ.  Cas.  (Willson)  525,  4 
L.R.A.  279,  denying  railroad's  right  to  condemn  land  for  spur  track  running  to 
private  mills  and  wharves;  Riley  v.  Louisville,  H.  &  St.  L.  R.  Co.  ]42  Ky.  69,  35 
L.R.A.  (N.S.)  638,  133  S.  W.  971,  holding  that  railroad  spur  to  distillery  is  for 
public  use,  where  railroad  intends  to  project  it  farther  and  to  provide  shipping 
facilities  for  public  at  highway  crossing;  Pere  Marquette  R.  Co.  v.  United  States 
Gypsum  Co.  154  Mich.  299,  22  L.R.A. (N.S.)  181,  117  N.  W.  733,  holding  proceed- 
ings to  condemn  land  for  a  side  track  did  not  show  a  sufficient  public  necessity 
where  it  appeared  it  was  meant  to  accommodate  the  mill  of  a  single  individual 
who  by  agreement  was  to  bear  the  expense  of  the  proceedings;  Helena  Power 
Transmission  Co.  v.  Spratt,  35  Mont.  123,  8  L.R.A. (N.S.)  570,  88  Pac.  773,  10 
A.  &  E.  Ann.  Cas.  1055,  holding  the  flooding  of  land  by  a  dam  erected  to  supply 
power  to  mines  and  smelters  and  the  public  generally  was  a  public  use  author- 
izing the  condemnation  of  the  land;  Caretta  R.  Co.  v.  Virginia  Pocahontas  Coal 
Co.  62  W.  Va.  188,  57  S.  E.  401,  on  legislative  authority  to  declare  a  use  public 
in  nature;  Cozard  v.  Kanawha  Hardwood  Co.  139  N.  C.  291,  1  L.R.A.  (N.S.)  974, 
111  Am.  St.  Rep.  779,  51  S.  E.  932,  on  determination  of  what  may  constitute 
a,  public  use. 

Annotation  cited  in  Zircle  v.  Southern  R.  Co.  102  Va.  22,  102  Am.  St.  Rep. 
805,  45  S.  E.  802,  as  having  called  attention  to  a  conflict  of  authorities,  on 
hranch  railroads  as  a  public  use. 

'Cited  in  footnotes  to  Re  Barre  Water  Co.  9  L.  R.  A.  195,  which  holds  run- 
ning of  motors  for  light  manufacturing  not  a  public  purpose  for  which  water 
of  stream  may  be  appropriated ;  Bridal  Veil  Lumbering  Co.  v.  Johnson,  34  L. 
R.  A.  368,  which  sustains  right  of  railroad  built  through  timbered  region  for 
few  miles  to  sawmill  to  exercise  of  eminent  domain;  Paxton  v.  H.  Irrigating 
Canal  &  Land  Co.  v.  Farmers'  &  M.  Irrig.  &  Land  Co.  29  L.  R.  A.  853,  which 


367  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  691 

holds  condemnation  of  land  for  irrigating  ditches  to  be  "for"  public  purpose; 
Wisconsin  Water  Co.  v.  Winans,  20  L.  R.  A.  6G2,  which  denies  water-supply 
company's  right  to  condemn  land  for  pipe  line;  Healy  Lumber  Co.  v.  Morris,  03 
L.R.A.  82],  which  denies  right  to  condemn  land  for  transportation  to  market  of 
logs  of  private  owner. 

Cited  in  notes  (20  L.R.A.  438)  on  power  to  condemn  right  of  way  for  rail- 
road sidings  to  private  establishments;  (14  L.  R.  A.  480)  on  public  purposes 
for  which  money  may  be  appropriated  or  raised  by  taxation;  (22  L.R.A.(X.S.) 
183,  184,  185)  on  power  to  condemn  right  of  way  for  track  to  private  establish- 
ment; (35  L.R.A  (N.S.)  649)  on  constitutionality  of  statute  conferring  eminent 
domain  in  other  than  railroad  for  spur  or  lateral  track;  (88  Am.  St.  Rep.  935) 
on  existence  of  public  use  as  question  for  courts;  (102  Am.  St.  Rep.  824)  on  uses 
for  which  power  of  eminent  domain  cannot  be  exercised. 

Distinguished  in  Chicago  &  X.  W.  R.  Co.  v.  Morehouse,  112  Wis.  7,  56  L.  R. 
A.  243,  88  Am.  St.  Rep.  918,  87  N.  W.  849,  sustaining  railroad's  right,  under 
statute,  to  condemn  land  for  spur  track  to  single  industry,  open  to  all  desiring 
service. 

Disapproved  in  Ulmer  v.  Lime  Rock  R.  Co.  98  Me.  590,  57  Atl.  1001,  sustaining 
railroad's  right  to  condemn  land  for  branch  track  to  lime  quarry. 
Appeal  in  condemnation  proceedings. 

Cited  in  Wheeling  Bridge  &  T.  R.  Co.  v.  Wheeling  Steel  &  I.  Co.  41  W.  Va. 
752,  24  S.  E.  651,  holding  writ  of  error  to  interlocutory  order  in  condemnation 
proceedings,  that  applicant  has  right  to  take  property  upon  paying  compen- 
sation improperly  allowed;  Bluefield  v.  Bailey,  62  W.  Va.  306,  57  S.  E.  805,  holding 
a  proceeding  to  condemn  land  for  a  public  use  is  such  a  controversy  concerning 
the  title  of  land  as  to  give  jurisdiction  for  a  writ  of  error. 
Private  corporation**,  -what  are. 

Cited  in  State  v.  Peel  Splint  Coal  Co.  36  W.  Va.  845,  17  L.  R.  A.  399,  15  S. 
E.   1000,  by  English,  J.,  dissenting,  who  holds  coal  mining  company  a  private 
corporation. 
Power  of  railroad  to  bnlld  branches. 

Cited  in  Arrington  v.  Savannah  &  W.  R.  Co.  95  Ala.  437,  11  So  7,  holding  the 
€mployment  of  a  contractor  to  grade  a  branch  line  is  valid  under  an  act  au- 
thorizing road  to  "build,  construct  and  operate  branch  roads  from  any  point  or 
points  on  its  line." 

Cited  in  note  (12  L.R.A.(X.S.)  327)  on  what  is  within  charter  power  to  build 
lateral  railroad. 

2  L.  R.  A.  691,  McCOULL  v.  MAXCHESTER,  85  Va.  579,  8  S.  E.  379. 
Duty  to  keep  streets  in  safe  condition. 

Cited  in  notes  (10  L.  R.  A.  737)  as  to  duty  of  city  to  keep  streets  in  safe 
condition;  (8  L.  R.  A.  829,  10  L.  R.  A.  474)  on  obstruction  of  street  for  build- 
ing purposes;  (3  L.R.A.(X.S.)  387)  on  duty  of  municipality  to  guard  building 
material  in  street;  (19  L.R.A.(XS.)  508;  20  L.R.A.(N.S.)  539,  672)  on  liability 
•of  municipality  for  defects  or  obstructions  in  streets. 

Distinguished  in  Mitchel  v.  Richmond,  107  Va.  199,  11  L.R.A.(N.S.)  1117,  57  S. 
E.  570,  12  A.  &  E.  Ann.  Cas.  1015,  holding  a  pedestrian  leaving  side  walks  because 
-of  their  muddy  condition  and  walking  in  the  gutter  could  not  recover  for  in- 
juries received  by  falling  in  a  sewer  opening  of  which  he  should  have  known. 


2  L.R.A.  694]  L.  R.  A.  CASES  AS  AUTHORITIES.  368 

2  L.  R.  A.  694,  LOUISVILLE  &  N.  R.  Co.  v.  BALLARD,  88  Ky.  159,  10  S.  W. 

429. 
Punitive  damag-es  for  discharging  passenger  at  wrong  station. 

Cited  in  Memphis  &  C.  Packet  Co.  v.  Nagel,  97  Ky.  15,  29  S.  W.  743,  holding- 
carrier  liable  in  punitive  damages  for  insulting  and  wrongfully  taking  pas- 
senger past  her  destination;  Louisville  &  N  R.  Co.  v.  Summers,  133  Ky.  690r 
118  S.  W.  926,  holding  a  passenger  put  off  at  the  wrong  station  could  not  recover 
punitive  damage  because  of  the  insulting  conduct  of  the  agent  where  it  appeared 
that  all  he  said  was  "You  get  off  here.  Come  on,  you  get  off  here;"  Harlan 
v.  Wabash  R.  Co.  117  Mo.  App.  541,  94  S.  W.  737,  holding  plaintiff  was  entitled 
to  recover  exemplary  damages  where  the  evidence  showed  he  was  wilfully  and 
intentionally  carried  beyond  his  destination. 

Cited  in  note  (17  L.R.A.(N.S.)  1229,  1231)  on  exemplary  damages  for  carrying 
passenger  beyond  destination. 
—  For  default  of  carrier  or  transmitter  in  general. 

Cited  in  Barnes  v.  Western  U.  Teleg.  Co.  27  Nev.  446,  65  L.R.A.  671,  103  Am. 
St.  Rep.  776,  76  Pac.  931,  1  A.  &  E.  Ann.  Cas.  346,  holding  a  recovery  might 
be  had  for  the  mental  anguish  and  distress  caused  by  defendants'  negligence  ire 
failing  to  deliver  a  telegram. 

Cited  in  footnote  to  Gillespie  v.  Brooklyn  Heights  R.  Co.  66  L.R.A,  618,  which 
holds  street  car  company  not  absolved  from  liability  for  malicious  act  of  con- 
ductor in  calling  passenger  a  deadbeat  when  asked  for  change  due  her. 

Cited  in  notes  (28  Am.  St.  Rep.  882;  37  L.  ed.  U.  S.  98)  on  liability  of  railroad 
or  other  corporation  for  punitive  or  exemplary  damages. 
Instructions   as   to. 

Cited  in  Yazoo  &  M.  R.  Co.  v.  Williams,  87  Miss.  359,  39  So.  489,  holding  an 
instruction  in  an  action  against  a  carrier  for  assault  that  jury  might  assess  puni- 
tive damages  in  such  sum  as  they  might  "see  fit"  was  not  erroneous;  Louisville 
&  N.  R.  Co.  v.  Scott,  141  Ky.  545,  34  L.R.A.  (KS.)  210  133  S.  W.  800,  holding  in- 
stmction  as  to  punitive  damages  for  ejection  of  passengers  erroneous,  where  they 
were  ejected  without  unnecessary  force  and  without  abuse. 
Duty  of  carrier  to  passengers. 

Cited  in  Illinois  C.  R.  Co.  v.  Winslow,  119  Ky.  882,  84  S.  W.  1175,  on  duty  of 
carrier  to  protect  its  passengers  from  violence  or  insult. 

Cited  in  note  (5  Eng.  Rul  Cas.  430)  on  carrier's  duty  to  carry  passenger  to 
destination  within  schedule  time. 

2  L.  R.  A.  695,  SMETHURST  v.  INDEPENDENT  CONG.  CHURCH,   148  Mass. 

261,  12  Am.  St.  Rep.  550,  19  N.  E.  387. 
Use  of  highway  by  adjoining  owner. 

Cited   in   Morris   v.   Whipple,    183   Mass.   29,   66   N.   E.    199,   raising   without 
deciding,   question   whether   carpet   and   canopy   across   sidewalk   to    street    is   a 
reasonable  use  by  adjoining  owner. 
Negligence  as  to  falling  ice  or  snow  or  other  flying  objects. 

Cited  in  Shepard  v.  Creamer,  160  Mass.  498,  36  N.  E.  475,  holding  it  negli- 
gence to  maintain  building  so  constructed  that  snow  or  ice  is  liable  to  fall 
upon  travelers;  Cork  v.  Blossom,  162  Mass.  333,  26  L.  R.  A.  258,  44  Am.  St. 
Rep.  362,  38  N.  E.  495,  holding  one  liable  for  injury  due  to  fall  of  high 
chimney  in  a  not  unusual  gale;  Manning  v.  West  End  Street  R.  Co.  166  ]\l;i-~. 
231,  44  N.  E.  135,  holding  one  momentarily  stopping  on  street  not  negligent  if 
struck  by  switch  stick  flying  from  hands  of  car  conductor;  Cavanagh  v.  Black, 
192  Mass.  65,  6  L.R.A.(N.S.)  311,  116  Am.  St.  Rep.  220,  77  N.  E.  1027,  holding 


369  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  i;;i.-, 

the  owner  of  a  building  abutting  on  a  private  way  used  in  common  by  several 
abutting  owners  was  liable  where  one  of  the  occupants  was  injured  by  the  falling 
of  an  accumulation  of  snow  and  ice. 

Cited  in  footnote  to  Davis  v.  Niagara  Falls  Tower  Co.  57  L.  R.  A.  545,  which 
sustains  right  to  injunction  against  maintaining  tower  so  that  ice  forming  on 
it  falls  on  adjoining  property. 

Cited  in  note  (12  L.  R.  A.  322)  on  duty  as  essential  element  of  negligence; 
(12  L.  R.  A.  190)  as  to  liability  of  owner  for  injury  caused  by  materials  fall- 
ing into  street. 

Distinguished  in  Waller  v.  Ross,  100  Minn.  11,  12  L.R.A.(X.S.)   727,  117  Am. 
St.  Rep.  661,  110  X.  W.  252,  10  A.  &  E.  Ann.  Cas.  715,  holding  the  doctrine  of  "res 
ipsa  loquitur"  was  to  be  applied  in  determining  the  liability  for  injury  to  a  trav- 
eller in  the  highway  by  the  falling  of  an  awning. 
Proximate  cause. 

Cited  in  McCauley  v.  Xorcross,  155  Mass.  587,  30  X.  E.  464,  holding  leaving 
beams  where  they  might  fall  on  some  one  below  proximate  cause  of  injury, 
although  careless  person  toppled  them  over;  Wolf  v.  Des  Moines  Elevator  Co.  126 
Iowa,  663,  98  N.  W.  301,  holding  plaintiff  could  recover  for  injuries  received 
where  his  team  at  time  on  a  traveled  way  took  fright  at  the  noise  from  de- 
fendant's gasoline  engine  and  ran  away;  Fishburn  v.  Burlington  &  X.  W.  R.  Co. 
127  Iowa,  497,  103  X.  W.  481,  holding  defendant  railroad  company  was  liable 
for  injuries  to  plaintiff's  child  caused  by  the  falling  of  a  snow  fence  placed  on 
plaintiff's  premises,  after  it  had  once  fallen  and  plaintiff's  children  had  replaced 
it;  Noe  v.  Rapid  Railway  Co.  133  Mich.  162,  94  X.  W.  743  (dissenting  opinion), 
on  the  question  of  proximate  cause. 

Cited  in  footnotes  to  Schumaker  v.  St.  Paul  &  D.  R.  Co.  12  L.  R.  A.  257, 
which  hold  master's  neglect  to  furnish  transportation  proximate  cause  of  injury 
in  walking  to  find  shelter;  McClain  v.  Garden  Grove,  12  L.  R.  A.  482,  which 
holds  narrowness  of  bridge  and  insufficiency  of  railings  not  proximate  cause  of 
injury  from  horse  falling  on  account  of  disease  or  choking;  Vallo  v.  Unite-.! 
States  Exp.  Co.  14  L.  R.  A.  743,  which  holds  throwing  trunk  from  delivery 
wagon  in  highway  proximate  cause  of  traveler  falling  over  another  trunk; 
Herr  v.  Lebanon,  16  L.  R.  A.  106,  which  holds  want  of  barrier  not  proximate 
cause  of  omnibus  going  over  wall,  horse  attempting  to  rise;  Southwestern  Teleg. 
&  Teleph.  Co.  v.  Robinson,  16  L.  R.  A.  545,  which  holds  telephone  company  liable 
for  injury  by  electricity  generated  by  thunder  storm  in  low  hanging  telephone 
wire:  Kieffer  v.  Hummelstown,  17  L.  R.  A.  217,  which  holds  borough  not  liable 
for  injury  to  one  thrown  on  stone  pile  on  roadside  by  fall  of  horse,  due  to 
struggles  of  other  horse  frightened  by  shooting;  McKenna  v.  Baessler,  17  L. 
R.  A.  310,  which  holds  original  tire  proximate  cause  of  destruction  of  property 
by  back  fire;  Gibney  v.  State,  19  L.  R.  A.  365,  which  holds  unsafe  bridge  cause 
of  drowning  of  father  trying  to  save  child  falling  into  water  through  defect; 
Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Elliott,  20  L.  R.  A.  582,  as  to  proximate  cause 
of  injury  to  shipper  while  stepping  from  stock  car  to  caboose;  Mueller  v.  Mil- 
waukee Street  R.  Co.  21  L.  R.  A.  721,  which  holds  sudden  stopping  of  street 
car  in  front  of  funeral  procession  cause  of  injury  to  first  carriage  by  pole  of 
second;  Wood  v.  Pennsylvania  R.  Co.  35  L.  R.  A.  199,  which  holds  failure  to 
give  warning  of  approach  of  train  not  proximate  cause  of  injury  to  one  struck 
by  body  of  other  person  hit  by  train. 

Cited  in  notes    (12  L.  R.  A.  280,   17  L.  R.  A.  38)    as  to  proximate  cause  of 
injury:    (45  L.  R.  A.  87)    on  rule  of  proximate  cause  in  malicious  torts;    (7  L. 
R,  A.  132.  13  L.  R.  A.  733)   as  to  proximate  and  remote  cause  of  injury;    (12 
R.  A.  283)    as  to  concurrent  or  co-operative  cause  of  injury;    (8  L.  R.  A.  85} 
L.Pv.A.  An.  Vol.  I.— 24. 


2  L.R.A.  695]  L.  R.  A.  CASES  AS  AUTHORITIES.  370 

as  to  effect  produced  by  intervening  cause;    (8  L.  R.  A.  82)    as  to  liability  for 
•consequential   injuries  due  to  negligent  act. 
Rights  of  traveler. 

Cited  in  Nead  v.  Roscoe  Lumber  Co.  54  App.  Div.  622,  66  N.  Y.  Supp.  419, 
liolding  one  run  into  while  tightening  canvas  cover  to  his  cart  a  traveler. 

Cited  in  note   (10  L.  R.  A.  737)    as  to  who  is  protected  as  traveler. 
Nature  of  rejected  testimony. 

Cited  in  Com.  v.  Smith,  163  Mass.  429,  40  N.  E.  189,  and  Shinners  v.  Locks 
&  Canals,  154  Mass.  169,  12  L.  R.  A.  557,  26  Am.  St.  Rep.  226,  28  N.  E.  10, 
holding  exclusion  of  testimony  not  reviewable  unless  bill  of  exceptions  shows 
its  nature;  Boykin  v.  State,  40  Fla.  492,  24  So.  141,  holding  exclusion  of  testi- 
mony not  reviewable  unless  its  nature  is  indicated  by  the  question  or  an  offer 
made. 
Liability  of  charitable  institution. 

Cited  in  Farrigan  v.  Pevear,  193  Mass.  149,  7  L.R.A.(N.S.)  482,  118  Am.  St. 
Rep.  484,  78  N.  E.  855,  8  A.  &  E.  Ann.  Gas.  1109,  holding  a  home  maintained  for 
indigent  boys  without  compensation  for  the  advantages  offered  constituted  a  valid 
public  charity;  Hordern  v.  Salvation  Army,  199  N.  Y.  236,  32  L.R.A. (N.S.)  65, 
139  Am.  St.  Rep.  889,  92  N.  E.  626,  holding  salvation  army  liable  for  injury  to 
mechanic  repairing  boiler,  through  defective  condition  of  runway  from  door  in 
boiler  room. 

2  L.  R.  A.  697,  STARRATT  v.  MULLEN,   148  Mass.  570,  20  N.  E.   178. 
Evidence  disproving  fact  or  contract  alleged. 

Cited  in  Lansky  v.  West  End  Street  R.  Co.  173  Mass.  20,  53  N.  E.  129,  holding 
defendant's  proof  that  injury  happened  at  place  other  than  alleged  does  not 
make  new  case  plaintiff  entitled  to  meet;  Frost  v.  Sumner,  149  Mass.  100,  21 
N.  E.  231,  holding  evidence  of  agreement  to  accept  legacy  in  payment  of  services 
sued  for  admissible;  Stewart  v.  Thayer,  170  Mass.  562,  49  N.  E.  1020,  holding 
defendant,  to  disprove  contract  alleged,  may  show  he  made  different  one;  Cargill 
v.  Atwood,  18  R.  I.  308,  27  Atl.  214,  holding  defendant  may  show  goods 
charged  to  him  were  furnished  in  payment  of  debt  due  him. 
Burden  of  proof. 

Cited  in  Hunting  v.  Downer,  151  Mass.  278,  23  N.  E.  832,  to  point  that  plain- 
tiff must  show  that  note  sued  on  was  given  for  loan  as  alleged;  Johnson  v. 
Kimball,  172  Mass.  401,  52  N.  E.  386,  holding  plaintiff  must  show  that  money 
paid  and  services  rendered  were  furnished  as  consideration  for  a  legal  obliga- 
tion; Milliken  v.  Randall,  89  Me.  207,  36  Atl.  75,  holding  plaintiff  must  show 
performance  of  agreement  to  care  for  ice  until  shipment,  in  action  for  purchase 
price;  Johnson  v.  Wanamaker,  17  Pa.  Super.  Ct.  306,  holding  plaintiff  in 
quantum  meruit  must  show  facts  from  which  law  will  infer  promise  to  pay; 
Wylie  v.  Marinofsky,  201  Mass.  584,  88  N.  E.  448,  holding  burden  of  proof  not 
shifted  to  defendant  in  replevin  by  the  introduction  of  evidence  under  a  general 
denial  of  title  in  defendant  by  purchase  from  plaintiff's  husband  and  authorized 
by  her;  Javierre  v.  Central  Altagracia,  217  U  S.  508,  54  L.  ed.  861,  30  Sup.  Ct. 
Rep.  598,  holding  that  persons  seeking  to  escape  from  contract  on  ground  of  con- 
dition subsequent  embodied  in  proviso  are  charged  with  burden  of  proving  that 
facts  of  condition  had  come  to  pass. 

Cited  in  note   (16  Am.  St.  Rep.  440)  on  burden  of  proof. 
Defenses  provable  under  general   denial. 

Cited  in  Vallancey  v.  Hunt,  20  X.  D.  584,  34  L.R.A. (N.S.)  477,  129  N.  W.  455, 
holding  that  in  action  by  mortgagee  to  recover  chattels  mortgaged  defense  of 


371  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  699 

breach   of   warrant   of   chattels   sold  must   be   specially   pleaded   and  cannot   be 
proved  under  general  denial, 
l.o.-i  ii   as  payment. 

Cited  in  Board  of  Assessors  v.  New  York  L.  Ins  Co.  216  U.  S.  522,  54  L.  ed. 
601,  30  Sup.  Ct.  Rep.  385,  on  loan  by  insurance  company  to  policy  holder,  repre- 
sented by  note,  but  charged  against  reserve  value  of  policy,  as  payment. 

2  L.  R.  A.  698,  DELANO  v.  BRUERTOM,  148  Mass.  619,  20  N.  E.  308. 
t iiheritance  by  adopted  child. 

Cited  in  Fiske  v.  Pratt,  157  Mass.  84,  31  N.  E.  715,  to  point  that  adopted 
son  in  absence  of  will,  inherits  the  estate;  Stearns  v.  Allen,  183  Mass.  410,  97 
Am.  St.  Rep.  441,  67  N.  E.  349,  holding  adopted  daughter  inherits  as  sister, 
from  son  of  one  of  adopting  parents;  Van  Derlyn  v.  Mack,  137  Mich.  152,  66 
L.R.A.  439,  109  Am.  St.  Rep.  669,  100  N.  W.  278,  4  A.  &  B.  Ann.  Cas.  879,  holding 
an  adopted  child  by  becoming  the  heir  of  the  person  adopting  does  not  become  the 
heir  of  kindred  of  such  person;  Burnes  v  Burnes,  132  Fed.  490,  on  adopted  child 
as  having  the  right  to  inherit  from  both  his  natural  and  adopting  parents. 

Cited  in  footnote  to  Van  Matre  v.  Sankey,  23  L.  R.  A.  665,  which  authorizes 
descent  of  land  to  child  adopted  in  other  state. 

•Cited  in  note  (17  L.  R.  A.  436)  as  to  effect  of  adoption  on  relationship  to 
others;  (39  Am.  St.  Rep.  225;  109  Am.  St.  Rep.  676;  118  Am.  St.  Rep.  687)  on 
right  of  adopted  children  to  inherit. 

Distinguished  in  Re  Reel,  33  Fittsb.  L.  J.  N.  S.  130,  holding  adopted  grand- 
child may  share  in  adopting  father's  estate  as  child  and  grandchild;  Heidecamp 
v.  Jersey  City,  H.  &  P.  Street  R.  Co.  69  N.  J.  L.  287,  55  Atl.  239,  holding  the  next 
of  kin  of  an  adopted  child  are  the  next  of  kin  by  blood  and  not  the  adopting 
parents 

2  L.  R.  A.  699,  MANUFACTURERS  NAT.  BANK  v.  CONTINENTAL  BANK, 

148  Mass.  553,   12  Am.  St.  Rep.  598,  20  N.  E.  193. 
Bnnk  credits. 

Cited  in  Beal  v.  Somerville,  17  L.  R.  A.  295,  1  C.  C.  A.  601,  5  U.  S.  App.  14, 
50  Fed.  650,  holding  bank  bailee  of  checks  deposited,  although  immediately 
credited  to  depositor  and  bank;  National  Bank  of  Commerce  v.  Johnson,  6  N. 
D.  185,  69  N.  W.  49,  holding  indorsement  for  credit  creates,  on  collection, 
relation  of  creditor  and  debtor  between  depositor  and  bank;  Fifth  Nat.  Bank 
v.  Armstrong,  40  Fed.  49,  holding  title  to  uncollected  paper  before  provisional 
credit  is  drawn  against  depends  on  intent. 

Distinguished   in   Franklin  County  Nat.   Bank  v.   Beal,   49   Fed.   607,  holding 
•collecting  and  forwarding  banks  debtor  and  creditor  after  collection  and  credit 
of  amount. 
Indorsement   "for  acconnt  of."  , 

Cited  in  People's  Bank  v.  Jefferson  County  Sav.  Bank,  106  Ala.  534,  54  Am. 
St.  Rep.   59,   17   So.   728,  holding  indorsement  "for  account  of"  gives  notice  of 
ownership  in  indorser. 
Indorsement  "for  collection." 

Cited  in  First  Nat.  Bank  v.  Armstrong,  42  Fed.  197;  Citizens'  Nat.  Bank  v. 
City  Nat.  Bank,  111  Iowa,  215,  82  N.  W.  464:  National  Bank  of  Commerce  v. 
Johnson,  6  N.  D.  184,  69  N.  W.  49,— holding  indorsement  for  collection  passes 
no  title;  Bank  of  Clarke  County  v.  Oilman,  81  Hun,  491,  30  N.  Y.  Supp.  1111, 
holding  paper,  until  paid,  remains  the  property  of  the  owner,  who  indorses  it 
/or  collection:  Freeman's  Nat.  Bank  v.  National  Tube  Works  Co.  151  Mass.  417, 


2  L.R.A.  699]  L.  R.  A.  CASES  AS  AUTHORITIES.  372 

8  L.  R.  A.  46,  21  Am.  St.  Rep.  461,  24  N.  K.  779.  holding  owner  after  indorsement 
for  collection  may  control  paper  until  paid,  and  intercept  proceeds  in  hands  of 
intermediate  agent;  State  ex  rel.  North  Carolina  Corp.  Commission  v.  Merchant's 
&  F.  Bank,  137  X.  C.  701,  50  S.  E.  308,  2  A.  &  E.  Ann.  Cas.  537,  holding  a  trans- 
action by  which  the  drawee  of  a  draft  sent  to  a  bank  for  collection  gives  the 
bank  a  check  on  his  deposit  therein  for  the  amount  of  the  draft  amounts  to  a 
payment  thereof  where  bank  has  money  on  hand  to  pay  it. 

Cited  in  footnotes  to  Tyson  v.  Western  Nat.  Bank,  23  L.  R.  A.  161,  which 
holds  title  does  not  pass  by  "indorsing  for  collection;"  Corn  Exchange  Bank  v. 
Farmers'  Nat.  Bank,  7  L.  R.  A.  559,  which  holds  only  first  of  several  banks 
receiving  check  for  collection  agent  of  payee. 

Cited  in  notes  (7  L.  R.  A.  845)  as  to  receiving  paper  for  collection;  (4  L. 
R.A.  422)  as  to  agency  of  bank  receiving  paper  for  collection;  (77  Am.  St.  Rep. 
628)  on  duties  of  banks  acting  as  collecting  agents:  (86  Am.  St.  Rep.  785.  789, 
790,  791)  on  title  of  bank  to  money  deposited  with  or  collected  by  it;  (3  Eng. 
Rul.  Cas.  778)  on  liability  of  bank  for  money  received  by  correspondent  bank. 
Insolvency. 

Cited  in  Exchange  Bank  v.  Sutton  Bank,  78  Md.  586,  23  L.  R.  A.  176,  28  Atl. 
563,  holding  insolvent  concern  cannot  make  transfer  of  credit ;  Nash  v.  Second 
Nat.  Bank,  67  N.  J.  L.  267,  51  Atl.  727,  holding  insolvency  terminates  agency 
of  bank  to  collect;  Stevenson  v.  Fidelity  Bank,  113  N.  C.  488,  18  S.  E.  695, 
holding  collecting  bank  cannot,  after  forwarding  bank's  assignment,  credit  lat- 
ter with  proceeds;  Bruiier  v.  First  Nat.  Bank.  97  Tenn.  540,  34  L.  R.  A.  53o, 
37  S.  W.  286,  holding  depositor  in  insolvent  bank  may  recover  sums  collected 
and  credited  to  it  after  its  failure;  Commercial  Nat.  Bank  v.  Armstrong,  148 
U.  S.  57,  37  L.  ed.  366,  13  Sup.  Ct.  Rep.  533,  holding  receiver  of  insolvent  bank 
liable  for  proceeds  of  paper  indorsed  to  it  for  collection  and  received  by  him. 

Cited  in  footnotes  to  Armstrong  v.  Boyertown  Nat.  Bank,  9  L.  R.  A.  553, 
which  denies  right  of  receiver  or  creditors  of  bank  crediting  owner  with  draft 
received  for  collection  to  demand  proceeds  from  collecting  bank;  First  Nat. 
Bank  v.  Payne,  3  L.  R.  A.  284,  which  holds  partner  of  insolvent  banking  firm 
cannot  pay  checks  received  from  collecting  bank  by  charging  to  drawers  and 
crediting  to  latter  bank;  Garrison  v.  Union  Trust  Co.  70  L.R.A.  6] 5.  which  holds 
rule  that  bank  making  collection  is  entitled  to  lien  on  proceeds  to  balance  account 
with  correspondent  as  against  title  of  original  transmitting  bank  not  changed  by 
fact  that  bank  to  which  draft  was  sent  by  correspondent  for  collection  was  in- 
solvent when  receiving  notice  of  collection  from  third  bank  to  which  draft  was 
forwarded  for  collection  and  credit. 

Cited  in  notes  (7  L.  R.  A.  859)  as  to  effect  of  insolvency  of  collecting  bank; 
(25  L.  R.  A.  547)  as  to  preference  by  insolvent  bank  because  of  trust  character 
of  deposit;  (2  L.  R.  A.  482)  as  to  following  trust  fund  in  the  hands  of  third 
person;  (32  L.  R.  A.  717)  as  to  trust  in  proceeds  of •  collection  made  by  insol- 
vent bank;  (86  Am.  St.  Rep.  798,  799)  on  right  to  recover  money  deposited  with 
or  collected  by  bank  upon  its  insolvency. 
Acceptance  of  check. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
acceptance   of   check   necessary   to  give   right   of   action   against   bank. 
Application  of  money  due  depositor. 

Cited  in  footnote  to  Grissom  v.  Commercial  Nat.  Bank,  3  L.  R.  A.  273,  which 
holds  bank  has  no  right  to  pay  to  third  party  note  made  by  depositor. 

Cited  in  note   (4  L.  R.  A.  Ill)   as  to  application  of  money  due  depositor. 


373  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  701 

2  L.  R.  A.  701,  STATE  ex  rel.  DAVIDSON  v.  GORHAM,  40  Minn.  232,  41  N 

W.   948. 
Constitutionality  of  inheritance  tax. 

Cited  in  Xeilson  v.  Russell,  76  N.  J.  L.  35,  69  Atl  476,  holding  that  inheritance 
tax  on  stock  of  state  corporation  passing  by  will  of  nonresident  is  not  tax  on 
property  but  on  devolution  of  property. 

Cited  in  footnote  to  Ferry  v.  Campbell,  50  L.  R.  A.  92,  which  holds  succes- 
sion tax  void  for  want  of  notice  of  proceedings  to  fix  amount  of  tax. 

Cited  in  notes  (127  Am.  St.  Rep.  1044;  33  L.R.A.(N.S.)  601)  on  constitutionality 
of  succession  taxes. 
Uniformity  of  taxation. 

Cited  in  Drew  v.  Tifft,  79  Minn.  182,  47  L.  R.  A.  527,  79  Am.  St.  Rep.  446, 
81  N.  W.  839,  holding  constitutional  provision  requiring  equality  of  taxation 
applies  to  inheritance  tax;  State  ex  rel.  Sanderson  v.  Mann,  76  Wis.  480,  45 
X.  \V.  526,  holding  tax  on  estates  of  stated  value  or  over,  in  counties  having 
more  than  given  population,  invalid  for  want  of  uniformity;  Cook  County  v.  Fair- 
banks, 222  111.  585,  78  N.  E.  895 ;  State  ex  rel.  Nettleton  v.  Case,  39  Wash.  182, 
1  L.R.A.(N.S.)  156,  109  Am.  St.  Rep.  874,  81  Pac.  554,— holding  a  scale  of  fees 
to  be  paid  the  clerk  of  the  court  based  upon  the  valuation  of  the  estate,  upon 
filing  papers  in  probate,  is  a  charge  in  nature  of  a  tax  and  unconstitutional  be- 
cause not  uniform;  Hauser  v.  Miller,  37  Mont.  26,  94  Pac.  197,  holding  a  statute 
calling  for  collection  of  graduated  fees  from  petitioners  filing  letters  of  adminis- 
tration regulated  by  value  of  the  estate  is  void. 

Cited  in  footnotes  to  Drew  v.  Tifft,  47  L.  R.  A.  525,  which  requires  uniformity 
and  equal  application  in  exemption  from  inheritance  tax;  State  ex  rel.  Garth 
v.  ISwitzler,  40  L.  R.  A.  280.  which  holds  succession  tax  at  different  rates  on 
legacies  of  different  amounts  invalid;  Billings  v.  People,  59  L.  R.  A.  807,  which 
sustains  transfer  tax  on  lineal  descendants  to  whom  life  estate  given  with  re 
mainder  to  lineal  descendants,  but  exempting  lineal  descendants  taking  fee; 
Be  Swift,  18  L.  R.  A.  709,  as  to  what  is  subject  to  succession  tax. 

Distinguished  in  Drew  v.  Tifft,  79  Minn.  183,  47  L.  R.  A.  527,  79  Am.  St. 
Rep.  446,  81  N.  W.  839,  holding  principal  case  not  authority  for  or  against 
right  to  levy  inheritance  tax;  State  ex  rel.  Foot  v.  Bazille,  97  Minn.  18,  6  L.R.A. 
(X.S.)  738,  106  N.  W.  93,  7  A.  &  E.  Ann.  Cas.  1056,  holding  under  amended  Con- 
stitution the  equality  mandate  has  no  application  to  inheritance  taxation. 

Disapproved,  in  effect,  in  Knowlton  v.  More,  178  U.  S.  58,  44  L.  ed.  976,  20 
Sup.  Ct.  Rep.  747,  9  Pa.  Dist.  R.  309,  holding  greater  privilege  of  taxation 
exists  as  to  state  inheritance  taxes  than  as  to  tax  on  property;  Magoun  v. 
Illinois  Trust  &  Sav.  Bank,  170  U.  S.  291,  292,  42  L.  ed.  1042,  18  Sup.  Ct.  Rep. 
594,  holding  inheritance  tax  based  on  classification  of  legatees  and  devisees, 
and  value  of  estate  transmitted,  not  in  conflict  with  United  States  Constitu- 
tion ;  State  v.  Alston,  94  Tenu.  684,  28  L.  R.  A.  181,  30  S.  W.  750,  holding  inher- 
itance tax  making  descrimination  betwen  direct  descendants  and  collateral 
heirs  and  strangers  not  unconstitutional;  Union  Trust  Co.  v.  Wayne  Probate 
Judge,  125  Mich.  493,  84  X.  W.  1101,  holding  inheritance  tax  is  tax  on  privilege, 
and  not  subject  to  constitutional  provision  requiring  uniformity;  Thompson  v. 
Kiddi-r,  74  X.  H.  97,  05  Atl.  392,  12  A.  &  E.  Ann.  Cas.  948,  holding  a  tax  upon 
collateral  legacies  and  successions  is  not  in  conflict  with  the  Constitution. 
Recovery  of  probate  tax  paid  county  treasurer. 

Cited  in  Mcarkle  v.  liennepin  County,  44  Minn.  547,  47  N.  W.  165,  holding 
tax  paid  under  void  statute  to  secure  probate  of  will  may  be  recovered  back; 
Rand  v.  Hennepin  County,  50  Minn.  392,  52  N.  W.  901,  holding,  payment  canaot 


2  L.R.A.  701]  L.  R.  A.  CASES  AS  AUTHORITIES.  374 

be  recovered  back  unless  made  under  compulsion;  De  Graft'  v.  Ramsey  County, 
46  Minn.  320,  48  N.  W.  1135,  holding  under  facts,  payment  of  tax  was  volun- 
tary, and  could  not  be  recovered  back. 

2   L.  R.  A.   703,   PEXXEGAR  v.   STATE,  87   Tenn.  244,   10  Am.   St.  Rep.   648, 

10  S.  W.  305. 
Validity  of  murria&es  prohibited  by  local  lavr. 

Referred  to  in  Mcllvain  v  Scheibley,  109  Ky.  460,  59  S.  W.  498,  by  stipula- 
tion of  the  parties  as  an  authority  on  evasion  of  the  local  marriage  laws  by  a 
marriage  outside  of  state. 

Cited  in  Stull's  Estate,  183  Pa.  625,  39  L.  R.  A.  542,  63  Am.  St.  Rep.  776, 
39  Atl.  16,  holding  intended  evasion  of  local  law  may  be  ground  for  declaring 
marriage  performed  in  another  state  invalid;  McLennan  v.  McLennan,  31  Or. 
486,  38  L.  R.  A.  864,  65  Am.  St.  Rep.  835,  50  Pac.  802,  holding  marriage  by 
divorced  resident  of  Oregon,  in  another  state,  within  time  for  taking  appeal, 
which  is  prohibited  by  laws  of  Oregon,  is  void;  State  use  of  Newman  v.  Kim- 
brough  (Tenn.  Ch.  App.)  52  L.  R.  A.  670,  59  S.  W.  1061,  holding  marriage  be- 
tween divorced  man  and  paramour  in  another  state,  contrary  to  local  law, 
invalid,  although  intention  to  evade  statute  not  shown;  State  v.  Tutty,  41  Fed. 
760,  7  L.  R.  A.  53,  holding  marriage  of  white  person  with  negro,  prohibited  by 
law  of  Georgia,  is  invalid  in  that  state,  although  good  where  contracted;  Re 
Wilbur,  8  Wash.  37,  40  Am.  St.  Rep.  886,  35  Pac.  407,  holding  marriage  of  white 
man  with  Indian  woman  on  reservation,  contrary  to  statute  of  Washington, 
void  in  that  state;  Lando  v.  Lando,  112  Minn  262,  30  L.R.A.(X.S.)  944,  127  X.  W. 
1125,  holding  that  marriage  regular  where  solemnized  is  valid  everywhere;  Lan- 
ham  v.  Lanham,  136  Wis.  368,  17  L.R.A.(X.S.)  807,  128  Am.  St.  Rep.  10S5,  117 
X.  \V.  787,  holding  a  law  prohibiting  remarriage  by  divorcee  within  a  year  after 
the  decree  rendered  such  a  marriage  invalid  where  contracted  outside  of  state  to 
avoid  such  law;  State  v.  Fenn,  47  Wash.  564,  17  L.R.A.(X.S.)  803,  92  Pac.  417; 
Sturgis  v.  Sturgis,  51  Or.  16,  15  L.R.A.(X.S-)  1037,  131  Am.  St.  Rep.  724,  93  Pac. 
696, — on  the  refusal  to  recognize  the  validity  of  a  marriage  performed  outside  of 
state  where  contrary  to  the  laws  of  nature  or  the  local  laws;  Schofield  v.  Schofield, 
20  Pa  Dist.  R.  807,  59  Pittsb.  L.  J.  569,  holding  that  marriage  between  first 
cousins  outside  state  to  avoid  statute  prohibiting  such  marriage  is  valid;  State  v. 
Xakashima,  62  Wash.  689,  114  Pac.  894,  holding  marriage  between  first  cousin* 
incestuous. 

Cited  in  footnotes  to  Jackson  v.  Jackson,  34  L.  R.  A.  773,  which  sustains  mar- 
riage valid  in  other  state  where  contracted;  Re  Stull,  39  L.  R.  A.  539,  which 
holds  invalid  marriage  between  man  and  paramour  in  other  state  to  avoid  laws- 
of  domicil;  Norman  v.  Norman,  42  L.  R.  A.  343,  which  holds  marriage  on  high 
seas,  by  parties  leaving  land  to  evade  laws  of  residence,  invalid. 

Cited  in  notes  (  57  L.  R.  A.  161,  162,  166,  169)  on  conflict  of  laws  as  to  valid- 
ity of  marriage;  (24  L.  R.  A.  834)  on  effect  of  statutes  forbidding  remarriage  of 
guilty  party  after  divorce  upon  remarriage  in  another  state;  (60  Am.  St.  Rep. 
945)  on  validity  of  foreign  marriage  in  violation  of  laws  of  place  where  parties 
reside^  (79  Am.  St.  Rep.  365,  366)  on  what  marriages  are  void;  (124  Am.  St.  Rep. 
106)  on  validity  of  common  law  marriages;  (5  Eng.  Rul.  Cas.  830)  on  law  govern- 
ing validity  of  marriage. 

Distinguished  in  Jackson  v.  Jackson,  82  Md.  30,  34  L.  R.  A.  775,  33  Atl.  31 7, 
holding  marriage  valid  where  contracted,  will  be  recognized  in  another  state, 
if  not  in  contravention  of  declared  policy  of  state;  Re  Chace,  26  R.  I.  355,  69 
L.R.A.  494,  58  Atl.  978,  3  A.  &  E.  Ann.  Cas.  1050,  where  marriage  of  a  person. 


375  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  709" 

under  guardianship  in  another  state  declared  valid  although  contracted  without 
the  consent  of  guardian  as  required  by  the  laws  of  this  state. 

Disapproved,  in  effect,  in  State  v.  Shattuck,  69  Vt.  403,  40  L.  R.  A.  429,  60 
Am.   St.  Rep.  936,  38  Atl.   81,  holding  intended  evasion  of  local  law  not  suffi- 
cient to  invalidate  marriage  good  where  celebrated,  unless  statute  expressly  so 
provides. 
Evidence  of  marriage. 

Cited  in  Jackson  v.  Jackson,  82  Md.  30,  34  L.  R.  A.  775,  33  Atl.  317,  holding 
proof  of  marriage  in  another  state  by  general  reputation  only,  sufficient,  in 
absence  of*local  statute  to  contrary. 

2  L.  R.  A.  708,  ROWE  v.  FOGLE,  88  Ky.  105,  10  S.  W.  426. 
Attorney's  lien  on  land. 

Cited  in  Keehn  v.  Keehn,  115  Iowa,  471,  88  N.  W.  957,  holding  attorney's 
lien  did  not  attach  at  common  law  to  land  in  controversy;  Holmes  v.  Waymire,  73 
Kan.  106,  84  Pac.  558,  9  A.  &  E.  Ann.  Cas.  624,  holding  the  lien  of  an  attorney 
for  compensation  does  not  extend  to  land  which  is  the  subject-matter  of  the 
litigation. 

Cited  in  footnote  to  Loofbourow  v.  Hicks,  55  L.  R.  A.  874,  holding  attorneys.' 
fees  allowed  by  judgment  on  foreclosure  of  mortgage  is  lien  on  land. 
On  property  in  hands  of  adverse  party. 

Cited  in  Sheedy  v.  McMurtry,  44  Neb.  503,  63  N.  W.  21,  on  when  attorney  is 
entitled  to  lien  on  property  in  hands  of  adverse  party. 
Settlement   by  parties  to  action  as  affecting;  rights  of  attorneys. 

Cited  in  Nielsen  v.  Albert  Lea,  91  Minn.  391,  98  N.  W.  195,  denying  the  motion 
of  attorneys  of  parties  to  an  action  for  leave  to  continue  the  action  where  the 
parties  arrived  at  a  settlement  in  good  faith  without  the  consent  of  their 
attorneys. 

Cited  in  notes  (51  Am  St.  Rep.  276;  93  Am.  St.  Rep.  172)  on  right  of  litigant 
to  settle  or  compromise  cause  in  which  he  has  appeared  by  attorney. 

2  L.  R.  A.  709,  LINDLEY  v.  FIRST  NAT.  BANK,  76  Iowa,  629,  14  Am.  St.  Rep. 

254,  41  N.  W.  381. 

A'ariance  between  agreement  for  acceptance  of  bill  and  demand  for  per- 
formance. 

Cited  in  Tansey  v.  Peterson,  88  Iowa,  548,  55  N.  W.  577,  holding  agreement  to 
"indorse  draft  as  heretofore"  does  not  require  indorsement  of  draft  bearing 
interest;  Garrettson  v.  North  Atchison  Bank,  47  Fed.  870,  holding  bank  agree- 
ing to  accept  check  for  stated  sum  cannot  refuse  payment  because  check  pre- 
sented concludes  with  words  "with  exchange;"  State  Bank  v.  Citizens'  Nat. 
Bank,  114  Mo.  App.  669,  90  S.  W.  123,  holding  an  acceptance  of  a  draft  for  a 
specified  sum  is  not  an  acceptance  of  a  draft  for  that  sum  with  exchange. 

Cited  in  notes  (7  L.  R.  A.  209)  on  acceptance  of  bill  of  exchange  or  draft; 
(23  L.R.A.  836)  on  liability  of  bank  as  accommodation  indorser;  (4  Eng.  Rul.  Cas. 
242)  on  acceptance  of  bill  of  exchange  by  telegram. 

Distinguished  in  State  Bank  v.  American  Hardwood  Lumber  Co.  121  Mo.  App. 
335,  98  S.  W.  786,  holding  a  bank  refusing  to  honor  a  draft  for  a  specific  sum 
"with  exchange  which  agreed  to  accept  a  draft  for  an  amount  five  dollars  less, 
v.as  liable  on  a  draft  for  such  an  amount  with  exchange." 
Adniissibility  of  evidence  of  cnstom  or  nsagre. 

Cited  in  McKee  v.  Wild,  52  Neb.  14,  71  N.  W.  958,  holding  custom  relied  on 
to  prove  meaning  other  than  ordinary  significance  of  words  used  in  contract 


2  L.R.A.  709]  L.  R.  A.  CASES  AS  AUTHORITIES.  376 

must  "be  pleaded;  Lewis  v.  Met  calf,  53  Kan.  227,  36  Pac.  345,  holding  local 
usage  in  stock  market,  of  placing  money  to  credit  of  shipper,  must  be  pleaded  in 
action  to  recover  proceeds  of  shipment;  Eller  v.  Loomis,  106  Iowa,  280,  76 
N.  W.  686,  holding  custom  of  bricklayers  to  build  their  own  scaffolds  not  avail- 
able in  action  for  injury  from  fall  of  scaffold  unless  pleaded;  Sherwood  v.  Home 
Sav.  Bank,  131  Iowa,  530,  109  N.  W.  9,  holding  a  local  custom  to  be  admissible 
as  part  of  a  contract  must  be  pleaded. 

Cited  in  note  (13  L.  R.  A.  440)  on  admissibility  of  evidence  of  custom  to 
vary  written  contract. 

2  L.  R.  A.  711,  STEWART  v.  GORTER,  70  Md.  242,   16  Atl.  644. 
Redemption  of  leases. 

Cited  in  Swan  v.  Kemp,  97  Md.  689,  55  Atl.  441,  holding  statute  permitting 
lessee  for  more  than  fifteen  years  to  redeem  lease  applies  to  lease  of  improved 
land;  Buckler  v.  Safe  Deposit  &  T.  Co.  115  Md.  228,  80  Atl.  899,  upholding  acts 
providing  for  redemption  of  leases. 
Validity  of  renewal  clauses  In  leases. 

Cited  in  Tennessee  Coal,  Iron  &  R.  Co.  v.  Pratt  Consol.  Coal  Co.  156  Ala.  449, 
47  So.  337,  holding  where  statute  provides  that  no  leasehold  can  be  created  for 
a  longer  period  than  twenty  years  a  provision  in  a  lease  for  such  period  that 
lessee  might  continue  the  lease  for  another  such  period  is  invalid. 

2  L.  R.  A.  712,  ANDERSON  v.  EAST,  117  Ind.  126,  10  Am.  St.  Rep.  35,  19  N. 

E.  726. 
Municipal    corporation,    liability    for    i\  roim  t'ul    acts    of    officers. 

Cited  in  Vaughtman  v.  Waterloo,  14  Ind.  App.  652,  43  N.  E.  476,  and  Monti- 
cello  v.  Fox,  3  Ind.  App.  488,  28  N.  E.  1025,  holding  city  liable  for  omission  or 
negligent  performance  of  ministerial  duty,  but  not  for  failure  to  exercise  dis- 
cretionary powers;  Funke  v.  St.  Louis,  122  Mo.  140,  26  S.  W.  1034,  holding  city 
not  liable  for  damage  to  land  resulting  from  acceptance  and  approval  of  plat 
of  adjoining  property;  Laurel  v.  Blue,  1  Ind.  App.  131,  27  N.  E.  301,  holding 
city  not  liable  for  illegal  arrest  by  marshal  without  warrant,  and  under  void 
ordinance;  Simpson  v.  Whatcom,  33  Wash.  405,  63  L.  R.  A.  820,  99  Am.  St.  Rep. 
951,  74  Pac.  577,  denying  municipality's  liability  for  arrest  and  prosecution 
of  person  under  invalid  ordinance;  Aschoff  v.  Evansville,  34  Ind.  App.  31,  72  N.  E. 
279,  on  municipal  corporations  as  being  liable  for  the  results  of  negligence  in  the 
performance  of  ministerial  functions;  Simpson  v.  Whatcom.  33  Wash.  405,  (J3 
L.R.A.  820,  99  Am.  St.  Rep.  951,  74  Pac.  577,  holding  a  person  who  has  been  prose- 
cuted and  convicted  by  city  officers  for  violation  of  an  invalid  city  ordinance  can- 
not maintain  action  against  city  for  damages. 

Cited  in  footnotes  to  Snider  v.  St.  Paul,  18  L.  R.  A.  151,  which  holds  city  not 
liable  for  negligence  of  agents  in  providing  and  maintaining  city  hall;  Howard 
v.  Worcester,  12  L.  R.  A.  160,  which  holds  city  not  liable  for  negligence  in 
blasting  for  schoolhouse;  Culver  v.  Streator,  6  L.  R.  A.  270,  which  holds  city 
liable  for  negligence  of  employee  enforcing  ordinance  against  unmuzzled  dogs 
running  at  large. 

Cited  in  notes  (9  L.  R.  A.  209,  210)  on  nonliability  of  municipal  corporations 
for  acts  or  omissions  of  officers  or  agents;  (19  L.  R.  A.  454)  on  distinction 
between  public  and  private  functions  of  municipal  corporations  in  respect  to 
liability  for  negligence;  (5  L.  R.  A.  254)  on  liability  of  municipal  corporations 
for  injuries  from  defective  streets,  bridges,  etc.;  (44  L.  R.  A.  801)  on  liability 
of  municipal  corporations  for  false  imprisonment  and  unlawful  arrest;  (12  Am. 
-"St.  Rep.  753)  on  municipal  liability  for  negligence;  (30  Am.  St.  Rep  378,  379, 


377  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  715 

38o)    on   liability  of  cities  for  negligence  and  other  misconduct  of  tfficers  and 

agents. 

Duty  required  in  care  of  streets. 

Cited  in  Udkin  v.  New  Haven,  80  Conn.  295,  14  L.R.A.(N.S.)  870,  68  Atl.  253, 
holding  defendant  city  was  not  liable  for  injury  to  plaintiff  by  falling  on  icy 
sidewalk  where  the  water  ran  onto  sidewalk  from  an  areaway  where  it  had  col- 
lected from  a  broken  lead  pipe  on  a  building;  Temby  v.  Ishpeming,  140  Mich.  151, 
69  L.R.A.  621,  112  Am.  St.  Rep  392,  103  N.  W.  588,  holding  a  city  was  not  liable 
for  injuries  resulting  from  the  defective  condition  of  a  bill  board  erected  on  a 
space  between  sidewalk  and  building,  such  space  being  under  the  control  of  the 
owner  of  the  building. 

Cited  in  notes  (103  Am.  St.  Rep.  260,  263)  on  municipal  liability  to  persons 
injured  by  defects  in,  or  want  of  repair  of,  streets;  (108  Am.  St.  Rep.  139,  151, 
153)  as  to  what  municipal  corporations  are  answerable  for  injuries  due  to  de- 
fects in  streets  and  other  public  places. 

Owner  of  fulling'  wall  liable  for  injury. 

Cited  in  Ainsworth  v.  Lakin,  180  Mass.  400,  57  L.  R.  A.  135,  91  Am.  St. 
Rep.  314,  62  N.  E.  746,  holding  owner  liable  for  injury  from  fall  of  wall  of 
burned  building. 

Cited  in  footnotes  to  Dettmering  v.  English,  48  L.  R.  A.  106,  which  holds 
person  constructing  wall  liable  for  failure  to  use  due  care  to  prevent  its  fall; 
Cork  v.  Bio^om,  26  L.  R.  A.  256,  which  holds  one  maintaining  high  chimney 
liable  for  fall  on  adjoining  building. 

Cited  in  notes   (34  L.  R.  A.  558)   on  liability  of  owner  or  occupant  for  falling 
wall;    (5  L.R.A.  795)   on  damages  for  injury  caused  by  defective  premises;    (123 
Am.  St.  Rep.  569)   on  duty  and  liability  of  landowners  to  adjoining  proprietors, 
as  to  walls  standing  after  fire.' 
Allegations  as   to   negligence. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Washington,  49  Fed.  349,  and  Lafayette 
v.  Ashby,  8  Ind.  App.  218,  34  N.  E.  238,  holding  general  averment  of  negligence 
sufficient  to  withstand  demurrer;  Jones  v  Great  Northern  R.  Co.  12  N.  D.  346,  97 
N.  W.  535.  holding  allegation  of  negligence  in  complaint  in  action  for  killing 
stock,  that  defendant  "negligently,  carelessly,  and  wrongfully  struck  and  killed 
the  same"  was  sufficient. 

Cited  in  note   (59  L.  R.  A.  218)    on  sufficiency  of  general  allegations  of  negli- 
gence. 
As  to  freedom  from  contributory  negligence. 

Cited  in  Pennsylvania  Co.  v.  Horton,  132  Ind.  192,  31  N.  E.  45,  holding  gen- 
eral averment  sufficient,  in  absence  of  motion  for  more  specific  statement;  Ohio 
&  M.  R.  Co.  v.  Levy,  134  Ind.  344,  32  N.  E.  815,  holding  ignorance  of  excavation 
into  which  plaintiff  fell  need  not  be  pleaded,  in  action  for  injury,  when  alleged 
plaintiff  was  without  fault. 
Connection  with  nnisance  essential  to  Nsbillty. 

Cited  in  note  (32  L.R.A.  (X.S.)  892)  on  connection  with  or  participation  itt 
nuisance  essential  to  responsibility. 

2  L.  R.  A.  715,  DOOLEY  v.  MONTGOMERY,  72  Tex.  429,  10  S.  W.  451. 
Conveyance  of  community  property. 

Cited  in  Stiles  v.  Japhet,  84  Tex.  95,  19  S.  W.  450,  holding  husband  may 
vey  community   property  without  wife's  joining  in  deed. 

Cited  in  note  (21  Am.  St.  Rep.  43)  on  separate  and  community  property. 


.2  L.R.A.  715]  L.  R.  A.  CASES  AS  AUTHORITIES.  378 

2  L.  R.  A.  716,  RICHARDSON  v.  LOUISVILLE  &  N.  R.  CO.  85  Ala.  559,  5  So. 

308. 
Action  by  husband  for  loss  of  wife's  or  children's  baggage. 

Cited  in  Battle  v.  Columbia,  N.  &  L.  R,  Co.  70  S.  C.  343,  49  S  E.  849,  holding 
a  husband  might  maintain  an  action  against  a  railroad  for  the  loss  of  wearing 
apparel  of  wife  and  children  in  the  possession  of  carrier  as  baggage. 

Cited  in  note  (1  L.R.A.  (N.S.)   354)   on  recovery  by  parent  for  loss  of  personal 
effects  of  infant  paying  no  fare. 
Title  of  husband   to   wife's  apparel. 

Cited  in  note  (11  L.R.A. (N.S.)  389)  on  right  of  man  to  dispose  of  ornaments 
-and  apparel  purchased  for  wife's  use. 

2  L.  R.  A.  717,  FRENCH  v.  WILLER,  126    111.  611,  9  Am.  St.  Rep.  651,  18  N. 

E.  811. 
•Confession  of  judgment  on  -warrant  of  attorney. 

Cited  in  notes   (13  L.  R.  A.  796)   on  conclusiveness  of  judgments  confessed  on 
warrants  of  attorney;    (40  L.  R.  A.   (N.  S. )   957)   on  validity  at  common  law  of 
warrant  of  attorney  to  confess  judgment. 
Statutory  rights  and  remedies. 

Cited  in  Fitzgerald  v.  Quinn,  165  111.  360,  46  N.  E.  287,  holding  statutory 
jurisdictional  facts  must  exist,  and  statutory  procedure  be  followed,  to  sus- 
tain forcible  entry  and  detainer  action;  Fay  v.  Seator,  88  111.  App.  421,  holding 
appeal  statutes  must  be  strictly  complied  with. 

Cited  in  notes  (120  Am  St.  Rep.  52;  127  Am.  St.  Rep.  91)  on  obviation  of  ne- 
cessity for  demand  of  rent  by  stipulation  in  lease. 

2  L.  R.  A.  721,  PEOPLE  v.  ARMSTRONG,  73  Mich.  288,  16  Am.  St.  Rep.  578; 

41   N.   W.  275. 
Test   of  reasonableness   in   determining   validity   of   ordinance. 

Cited  in  People  v.  Wagner,  86  Mich.  600,  13  L.  R.  A.  289,  24  Am.  St.  Rep. 
141,  49  N.  W.  609,  holding  bread  ordinance  clearly  authorized  by  charter  not 
subjectable  to  test  of  reasonableness;  Re  Smith,  143  Cal.  373,  77  Pac.  180, 
holding  conditions  and  circumstances  may  be  considered  in  determining  whether 
ordinance  is  a  valid  exercise  of  police  power;  Grand  Rapids  v.  Powers,  89  Mich. 
114,  14  L.  R.  A.  507,  28  Am.  St.  Rep.  276,  50  N.  W.  661,  holding  legislature 
cannot  infringe  individual  rights  by  authorizing  municipality  to  declare  that 
a  purpresture  or  nuisance  is  not  so  in  fact;  Bennett  v.  Pulaski  (Tenn.  Ch. 
App.)  47  L.R.A.  281,  52  S.  W.  913,  holding  ordinance  regulating  saloon  screens 
and  admission  and  egress  of  persons  during  certain  hours  void  for  unreasonable- 
ness; Indianapolis  Abattoir  Co.  v.  Neidlinger,  174  Ind.  408,  92  N.  E.  169,  holding 
invalid  ordinance  requiring  use  of  safety  devices  on  elevators;  Re  Junqua,  10 
Cal.  App.  606,  103  Pac.  159,  holding  an  ordinance  making  it  unlawful  for  any 
person  to  permit  any  soot  to  escape  from  the  smokestack  of  any  furnace  within 
the  city  in  which  crude  oil  is  consumed  as  fuel  is  not  unreasonable  or  oppressive 
on  its  face;  Weadock  v.  Recorder's  Ct.  Judge,  156  Mich.  381,  132  Am.  St.  Rep.  527, 
120  N.  W.  991,  16  A.  &  E.  Ann.  Gas.  720,  holding  an  ordinance  prescribing  a  cer- 
tain restricted  district  in  which  no  junk  business  shall  be  established  is  void  ae 
unreasonable  where  it  excepts  junkshop  already  established;  Parker,  W.  &  Co.  v. 
Austin,  156  Mich.  581,  23  L.R.A.(N.S.)  270,  121  N.  W.  322,  holding  charter  au- 
thorizing the  regulation  of  weights  and  measures  to  be  sealed  by  city  sealer  so  as 
to  conform  to  standard  weights  and  measures  does  not  authorize  an  ordinance 
requiring  the  city  sealer  to  determine  the  accuracy  of  computing  devices  on  scales 
of  merchants;  Fulton  v.  Norteman,  60  W.  Va.  573,  9  L.R.A.  (N.S.)  202,  5i>  S.  E. 


379  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  734 

658,  holding  an  ordinance  is  unlawful  and  unreasonable  which  forbids  the  bring- 
ing of  dead  bodies  of  animals  into  town  for  manufacture  into  fertilizer  but  not 
making  it  unlawful  to  manufacture  fertilizer  within  the  town. 

Cited  in  footnotes  to  Simrall  v.  Covington,  9  L.  R.  A.  556,  which  holds 
ordinance  requiring  license  from  agents  representing  nonresident  insurance  com- 
panies only,  void;  Kosciusko  v.  Slomberg,  12  L.  R.  A.  528,  which  holds  or- 
dinance restricting  importation  of  second-hand  clothing  in  absence  of  epidemic 
void;  Beiling  v.  Evansville,  35  L.  R.  A.  272,  which  refuses  to  hold  void  ordinance 
prohibiting  maintenance  of  slaughterhouse  within  city  when  authorized  by 
statute;  Slaughter  v.  O'Berry,  48  L.  R.  A.  442,  which  holds  void  ordinance  that 
city  may  provide  materials  and  do  work  of  making  sewer  connections  to  within 
3  feet  of  building;  Philadelphia  v.  Brabender,  58  L.  R.  A.  220,  which  sustains 
ordinance  against  casting  advertisements,  etc.,  into  vestibules  of  dwellings;  Com. 
v.  Boston  Advertising  Co.  69  L.R.A.  817,  which  holds  forbidding  use  of  land  near 
park  or  parkway  for  advertising  purposes  a  taking  thereof  for  public  use. 

Cited  in  notes  (6  L.R.A.  268)  on  powers  of  municipalities  to  be  exercised  im- 
partially; (70  L.R.A  851)  on  power  of  municipality  to  compel  change  of.  grade 
of  railway  in  street;  (104  Am.  St.  Rep.  643,  645)  on  municipal  regulations  of 
street  railways  for  protection  of  public;  (107  Am.  St.  Rep.  249)  on  passing  or 
casting  of  handbills  or  circulars  as  public  nuisance. 

Distinguished  in  People  v.  Baker,  115  Mich.  200,  73  N.  W.  115,  upholding 
ordinance  requiring  hawkers  and  peddlers  to  pay  weekly  license  fee  of  $5; 
Grand  Rapids  v.  Braudy,  105  Mich.  678,  32  L.  R.  A.  121,  55  Am.  St.  Rep.  472,  64 
X.  W.  29,  upholding  ordinance  providing  for  licensing  pawnbrokers,  junk  and 
secondhand  dealers;  Wettengel  v.  Denver,  20  Colo.  555,  39  Pac.  343,  upholding 
ordinance  prohibiting  distribution  of  hand  bills  etc.,  tending  to  litter  streets 
and  frighten  horses;  Philadelphia  v.  Brabender,  201  Pa.  577,  58  L.  R.  A.  221, 
51  Atl.  374,  Affirming  17  Pa.  Super.  Ct.  337,  upholding  ordinance  forbidding 
casting  hand  bills  etc.,  upon  streets  and  in  vestibules  of  houses. 
Partial  invalidity  of  ordinance. 

Cited  in  St.  Ignace  v.  Snyder,  75  Mich.  652,  42  N.  W.  1130,  holding  defend- 
ant can  only  complain  of  invalidity  of  ordinance  as  to  particular  part  under 
which  he  was  convicted;  Johnson  v.  Bessemer,  143  Mich.  314,  106  N.  W.  852, 
on  the  invalidity  of  part  of  ordinance  as  not  affecting  the  enforcement  of  the 
remainder. 
Construction  of  ordinances  in  favor  of  validity. 

Cited  in  Swan  v,  Indianola,  142  Iowa,  740,  121  X.  W.  547,  on  courts  as  being 
slow  to  condemn  ordinances  passed  pursuant  to  statute  expressly  authorizing 
them. 

2  L.  R.  A.  724,  DOE  ex  dem.  HITCH  v.  PATTEN,  8  Houst.   (Del.)   334,  16  Atl. 

558. 

2  L.  R.  A.  734,  CONSTANT  v.  UNIVERSITY  OF  ROCHESTER,  111  N.  Y.  604, 
7  Am.  St.  Rep.  769,  19  N.  E.  631. 

Second  appeal  in  133  N.  Y.  641,  4  Silv  Ct.  App.  285,  31  N.  E.  26  which  reversed 
28  Jones  £  S.  89,  17  N.  Y.  Supp.  363. 
Mortjt'ziBees   for  value. 

Cited  in  note    (13  L.  R.  A.  390)    on  chattel  mortgage,  novation. 
When  ag-ent's  knowledge   immutable   *o  principal. 

Cited  in  Slattny  v.  Schwannecke,  118  N.  Y.  548,  23  N.  E.  922,  holding  mort- 
gagee not  chargeable  with  knowledge  of  attorneys  conducting  foreclosure,  of 
unrecorded  deed,  not  shown  to  have  been  then  in  attorneys'  minds;  McCutcheon 


2  L.R.A.  734]  L.  R.  A.  CASES  AS  AUTHORITIES.  380 

v.  Dittman,  164  N.  Y.  357,  58  N.  E.  97,  holding  attaching  creditor,  purchasing 
collateral  at  sale  conducted  by  his  attorney  acted  for  lender,  chargeable  with 
attorneys'  knowledge  of  want  of  due  notice  to  debtor;  Melms  v.  Pabst  Brewing 
Co.  93  Wis.  167,  57  Am.  St.  Rep.  899,  66  N.  W.  518,  holding  attorneys'  knowledge 
of  invalidity  of  sale  by  interested  executor,  gained  while  acting  for  parties,  not 
imputable  to  client  subsequently  buying  land;  Equitable  (Securities  Co.  v.  Shep- 
pard,  78  Miss.  234,  28  So.  842,  holding  knowledge  acquired  by  attorney  six 
years  before,  not  shown  to  have  been  in  mind  when  conducting  client's  business 
not  imputable  to  client;  Sweeney  v.  Pratt,  70  Conn.  282,  66  Am.  St.  Rep.  101, 
39  Atl.  182,  holding  knowledge  gained  by  attorney  in  client's  business  imputable 
to  client;  Brinkerhoff  v.  Sartwell,  85  Hun,  560,  33  N.  Y.  Supp.  162,  holding 
agent's  knowledge  of  corporation's  condition  at  time  of  selling  stock  imputable 
to  vendor;  German  American  Mut.  Life  Asso.  v.  Farley,  102  Ga.  740,  2D  '6.  E. 
615,  holding  agent's  knowledge  of  facts  material  to  risk,  gained  before  employ- 
ment, present  in  mind  when  effecting  insurance,  imputable  to  insurer;  Re 
Plankington  Bank,  87  Wis.  383,  58  N.  W.  784,  holding  bank  not  chargeable  with 
knowledge  of  ownership  of  funds  deposited  by  president  to  private  account ; 
George  v.  Butler,  16  Utah,  116,  50  Pac.  1032,  holding  husband's  knowledge  of 
prior  lien  gained  shortly  before  lending  wife's  money  on  mortgage,  imputable 
to  wife;  Anderson  v.  Hernandez,  8  Misc.  644,  29  N.  Y.  Supp.  1027,  holding 
knowledge  gained  by  agents  in  investigating  property  imputable  to  purchaser ; 
Anderson  v.  Blood,  86  Hun,  251,  33  N.  Y.  Supp.  233  (dissenting  opinion) 
majority  holding  knowledge  of  suspicious  circumstances,  coming  to  agent  at 
moment  of  closing  sale,  not  imputable  to  purchaser;  Crooks  v.  People's  Nat. 
Bank,  72  App.  Div.  338,  76  N.  Y.  Supp.  92  (dissenting  opinion),  majority  hold- 
ing bank  chargeable  with  knowledge  of  intent  of  president,  acting  for  it  and. 
for  his  insolvent  firm,  to  give  preference;  Corney  v.  Harris,  133  App.  Div.  689r 
318  X.  Y.  Supp.  244,  on  when  principal  is  chargeable  with  knowledge  of  agent; 
Gaspard  v.  Fourteenth  Street  Store,  143  App.  Div.  405,  128  N.  Y.  Supp.  53,  hold- 
ing seller  chargeable  with  notice  of  lack  of  authority  of  buyer's  agent  to  pur- 
chase without  confirmation  by  principal,  if  seller's  agent  had  in  mind  such  lack 
of  authority  ascertained  while  acting  for  another  principal. 

Cited  in  footnotes  to  Birmingham  Trust  &  Sav.  Co.  v.  Louisiana  Xat.  Bank. 
20  L.  R.  A.  600,  which  holds  cashier's  notice  imputable  to  savings  company:, 
Wittenbrock  v.  Parker,  24  L.  R.  A.  197,  which  holds  knowledge  by  one  member 
of  firm  of  lawyers  while  transacting  firm  business  imputed  to  other  members. 

Cited  in  notes  (24  Am  St.  Rep.  230;  57  Am.  St.  Rep.  917;  21  Eng.  Rul.  Cas.. 
844,  847)  on  imputing  to  principal  notice  to  solicitor  or  agent. 

Distinguished  in  Bienenstok  v.  Ammidown,  155  X.  Y.  59,  49  N.  E.  321. 
Reversing  11  Misc.  82,  32  X.  Y.  Supp.  1138,  holding  partner's  knowledge  of 
fraud  committed  by  him  in  individual  transaction  not  imputable  to  his  firm.. 
with  which  proceeds  were  deposited:  Scott  v.  Scott,  2  App.  Div.  243,  38  X.  V. 
Supp.  613,  holding  principal  chargeable  with  agent's  knowledge  'of  want  of 
consideration,  acquired  in  purchasing  note;  Wiegmann  v.  Morinmra,  12  Mi.-c. 
39,  33  N.  Y.  Supp.  39,  holding  notice  to  attorney  of  rights  of  third  persons  in 
property  sold  under  attachment  not  imputable  to  client  receiving  proceeds. 
Burden  of  showing1  agent'**  knowledge  chargeable  to  principal. 

Cited  in  Sergent  v.  Liverpool  &  L.  &  G.  Ins.  Co.  66  App.  Div.  51,  73  X.  Y.  Supp. 
120,  holding  burden  of  proof  is  on  one  seeking  to  charge  insurer  with  agent's- 
knowledge,  acquired  before  employment ;  Denton  v.  Ontario  County  Xat.  Bank, 
150  X.  Y.  137,  44  X.  E.  781,  holding  burden  of  proof  is  on  person  seeking  to 
charge  client  with  knowledge  of  attorney,  gained  in  another  transaction;  Badger 
v.  Cook,  117  App.  Div.  331,  101  N.  Y.  Supp.  1067;  Mathews  v.  Damainville,  100* 


L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.K.A.  743 

App.  Div.  314,  91  X.  Y.  Supp.  524,— holding  to  bind  a  client  with  knowledge  ob- 
tained by  his  attorney  in  another  transaction  not  relating  to  client's  business 
the  burden  is  upon  the  person  charging. 
Poasession  as  notice  of  rights  in  real  property. 

Cited  in  footnotes  to  Brinser  v.  Anderson,  0  L.  R.  A.  205,  which  holds  pur- 
chaser required  to  inquire  into  rights  of  possessor,  though  he  knows  of  lease 
to  him;  Rock  Island  &  P.  R.  Co.  v.  Dimick,  19  L.  R.  A.  105,  which  holds  open 
and  exclusive  possession  of  passageway  through  railroad  embankment  notice  of 
rights  to  purchaser  of  railroad;  Gibson  v.  Thomas,  70  L.R.A.  768,  which  holds 
-unrecorded  release  of  portion  of  property  covered  by  mortgage  by  holder  to  mort- 
gagor not  binding  on  subsequent  assignee  of  mortgage  without  notice,  though 
property  released  is  in  possession  of  purchaser. 

Cited  in  note   (8  L.  R.  A.  211,  212)    on  title  to  land;  construction  notice  by 
possession. 
Release  of  security  as  consideration. 

Cited  in  note  (33  L.R.A.(N.S.)  61)  on  release  of  security  for  old  debt  as  valu- 
able consideration. 

-2  L.  R.  A.  741,  STULL  v.  HARRIS,  51  Ark.  294,   11   S.  W.   104. 

Action  for  assignment  of  dower  by  appellant's  widow,  in  Stull  v.  Graham,  60 
Ark.  468,  31   S.  W.  46. 
Statute  of  limitations. 

Cited  in  Fox  v.  Drewry,  62  Ark.  319,  35  S.  W.  533,  holding  married  women's 
-act  does  not,  by  implication,  repeal  saving  clause  in  their  favor  in  statute  of 
limitations. 
Disn  lliriiinnee  of  infant's  contracts. 

Cited  in  Tobin  v.  Spann,  85  Ark.  560,  16  L.R.A.(X.S.)  674,  109  S.  W.  534.  hold- 
ing a  minor  executing  a  deed  with  representations  that  he  was  of  full  age  is  not 
estopped  from  disaffirming  such  contract  on  reaching  majority;  Muskogee  Devel- 
opment Co.  v.  Green,  22  Okla.  243,  97  Pac.  619;  Beauchamp  v.  Bertig.  90  Ark.  362, 
^23  L.R.A.(XS.)  663,  119  S.  W.  75,— on  right  of  infant  to  disaffirm  contract  on 
reaching  majority.- 

Cited  in  note  (18  Am.  St.  Rep.  677,  679)  on  disaffirmance  of  contracts  of  infants. 
Ketnrn  of  consideration  as  prerequisite  of  rescinding  transfer  of  title. 

Cited  in  State  v.  Morgan,  52  Ark.  157,  12  S.  W.  243,  holding  state,  to  recover 
iitle  to  land  in  possession  of  citizen  under  void  patent,  must  return  consider- 
ation; McKinney  v.  McCullar,  95  Ark.  168,  128  S.  W.  1043,  holding  minor,  never 
receiving  from  guardian  sum  paid  on  exchange  of  lands,  not  bound  to  return 
such  sum;  Blakemore  v.  Johnson,  24  Okla.  555,  103  Pac.  554,  holding  that  minor 
-need  not  offer  to  restore  consideration  for  land,  where  it  never  reached  her  hands. 

Cited  in  notes  (26  L.R.A.  183)  on  necessity  of  returning  consideration  in  order 
to  disaffirm  infants'  contracts;    (18  Am.  St    Rp.  689,  692)  on  infants  obligation 
to  restore  consideration  on  disaffirmance. 
Xote  as  payment. 

Cited  in  Griffin  v.  Long.  96  Ark.  272,  35  L.R.A.(X.S-)  857,  131  S.  W.  672,  Ann. 
Cas.  1012  B,  622,  holding  that  execution  of  note  in  renewal  of  previous  note  or 
debt  is  not  payment,  unless  there  is  express  agreement  to  that  effect. 

-2  L.  R.  A.   743,  DEM1XG  v.  DARLING,   148  Mass.  504,  20  N.  E.   107. 
Opinions,    and    estimates,    and    representations,    as    basin    for    action    fo* 
deceit. 

Cited  in  Lilienthal  v.   Suffolk  Brewing  Co.   154   Mass.   188,   12  L.  R.  A.  823, 


2  L.R.A.  743]  L.  K.  A.  CASES  AS  AUTHORITIES.  382 

26  Am.  St.  Rep.  234,  28  X.  E.  151,  holding  seller's  statement  as  to  market  value, 
to  experienced  dealer  in  article  sold,  not  actionable;  Burns  v.  Dockray,  156 
Mass.  137,  30  N.  E.  551,  holding  false  statement,  absolutely  made,  that  title 
to  real  estate  was  good,  deceiving  buyer,  actionable;  Lynch  v.  Murphy,  171 
Mass.  308,  50  N.  E.  623,  holding  representations  largely  of  future  value,  of 
stock  as  an  investment  not  actionable;  People's  Sav.  Bank  v.  James,  178  M;\s>. 
325,  59  N.  E.  807,  holding  false  representations  as  to  means  and  ability  to  raise 
money,  inducing  transfer  of  property,  not  actionable  against  execution-sale 
purchaser;  Handy  v.  Waldron,  18  R.  I.  570,  49  Am.  St.  Rep.  794,  29  Atl.  143, 
holding  false  and  fraudulent  warranty  of  value  of  bonds  and  stocks,  deceiving 
purchaser,  actionable;  Mosher  v.  Post,  89  VVis.  605,  62  N.  W.  516,  holding  false 
statement  of  value  of  goods  by  seller  not  actionable;  Ansley  v.  Bank  of  Pied- 
mont, 113  Ala.  479,  59  Am.  St.  Rep.  122,  21  So.  59,  holding  mere  representations 
as  to  present  pecuniary  value  of  lot  not  actionable;  Andrews  v.  Jackson,  168 
Mass.  269,  37  L.  R.  A.  403,  60  Am.  St.  R*p.  390,  47  X.  E.  412,  holding  false 
representations  as  to  value  of  notes,  deceiving  vendor  of  land,  actionable;  Vegerer 
v.  Jordan,  10  Cal.  App.  365,  101  Pac.  1066,  holding  a  representation  that  mining 
stock  solrt  was  of  "great  value"  was  too  indefinite  to  be  actionable;  Gaar  v. 
Halverson,  128  Iowa,  604,  105  X.  W  108,  holding  representations  by  an  agent 
that  an  engine  had  been  rebuilt,  was  practically  as  good  as  new  and  was  of 
sufficient  power  to  drive  defendant's  threshing  machine  could  not  be  made  the 
basis  of  an  action  of  fraud;  Kimber  v.  Young,  70  C.  C.  A.  178,  137  Fed.  749, 
holding  allegations  of  defendant  that  he  knew  bonds  to  be  good  and  that  they 
would  he  paid  at  maturity  would  not  sustain  an  action  for  deceit;  Pittsburg 
Life  &  T.  Co.  v.  Xorthern  Cent.  L.  Ins.  Co.  140  Fed.  896,  holding  a  representation 
as  to  the  value  of  accounts  that  they  were  ''better  than  ordinary"  would  not 
sustain  an  action  of  deceit;  J.  H.  Clark  Co.  v.  Rice,  127  Wis.  405,  106  X.  W  231r 
7  A.  &  E.  Ann.  Cas.  505,  on  mere  expressions  of  opinion  as  the  basis  of  an  action- 
for  fraud. 

Cited  in  notes  (15  L.  R.  A.  795)  on  effect  of  representing  things  sold  to  be 
"good;"  (35  L.  R.  A.  426)  on  expression  of  opinion  as  fraud;  (37  L.  R.  A.  610) 
on  right  to  rely  upon  representations  made  to  effect  contract  as  a  basis  for  a 
charge  of  fraud;  (12  Am.  St.  Rep.  37)  on  false  representations;  (12  Eng.  Rul, 
Cas.  297)  on  what  constitutes  fraiid  and  liability  therefor. 

Distinguished  in  Roberts  v.  French,  153  Mass.  "63,  10  L.  R.  A.  657,  25  Am.  St. 
Rep.  611,  26  N.  E.  416,  holding  false  representations  as  to  measurement  of  landr 
deceiving   buyer,    actionable. 
Requisites  of  action  for  deceit. 

Cited  in  Ruohs  v.  Third  Xat.  Bank,  94  Tenn.  74,  28  S.  W.  303,  holding  right 
of  action  for  deceit  may  be  lost  by  laches. 

Cited  in  footnote  to  Xash  v.  Minnesota  Title  Ins.  &  T.  Co.  28  L.  R.  A.  753^ 
which  requires  intent  to  deceive  to  sustain  action  for  false  representations 
inducing  execution  of  contract. 

Cited  in  notes   (6  L.  R.  A.  149,  151)   on  right  of  action  for  deceit. 

2  L  R.  A.  745,  CAVERLY  v.  ROBBIXS,  149  Mass.  16,  20  X.  E.  450. 

2  L.  R.  A.  746,  REPUBLIC  IROX  MIX.  CO.  v.  JOXES,  37  Fed.  721. 

Suit  by  asuisrnee  in  Federal  court  on  ground  of  diverse  citizenship. 

Cited  in  footnote  to  Wonderly  v.  Lafayette  County,  45  L.  R.  A.  386,  which- 
sustains  suit  in  state  court,  to  set  aside  Federal  judgment  obtained  by  fraudu- 
lent pretense  of  diverse  citizenship. 

Cited  in  note  (12  L.  R.  A.  682)  on  suits  by  assignee  of  choses  in  action. 


383  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  75$ 

2  L.  R.  A.  749.  FRADLKY  v.  HYLAXD,  37  Fed.  49. 
Principal')*  liability  for  agent's  acts. 

Cited  in  notes   (2  L.  R.  A.  810)   on  liability  of  principal  for  acts  of  agent;   (2> 
L.  R.  A.  811)   as  to  when  principle  as  to  liability  applied;    (2  L.  R.  A.  824)   on 
private  restrictions  on  agent's  authority  as  Affecting  third  persons;   (2  Eng.  Rul. 
Cas   483)  on  right  of  one  dealing  with  agent  to  hold  undisclosed  principal. 
Election  between  agent  and  undisclosed   principal. 

Cited  in  Berry  v.  Chase,  77  C.  C.  A.  161,  146  Fed.  626,  on  necessity  that  person- 
dealing  with  agent  elect  between  agent  and  undisclosed  principal  for  a  satisfaction 
of  claims. 

2  L.  R.  A.  751,  BRADY  v.  NEW  YORK,  112  N.  Y.  480,  20  N.  E.  390. 
Effect  of  delivery  of  architect's  certificate. 

Cited  in  footnote  to  Arnold  v.  Bournique,  20  L.  R.  A.  493.  which  holds  con- 
tractor  entitled   to   payment   on   delivery   of  architect's   certificate   handed   back 
without  presentation  to  owner. 
Review  by  courts  of  discretion  vested  In  administrative  officer*. 

Cited  in  Holly  v.  Xew  York  City,  128  App.  Div.  502,  112  X.  Y.  Supp.  707r 
on  courts  as  not  generally  interfering  with  the  discretion  of  municipal  officers  ir» 
letting  a  contract: 

2  L.  R.  A.  753.  M A XX IX  v.  PURCELL,  46  Ohio  St.  102,  19  N.  E.  572. 
Petition   in  error. 

Cited  in  Wade  v.  Kimberley,  5  Ohio  C.  C.  35.  holding  filing  of  petition  in  error 
properly  styled  a  proceeding. 
Trusts. 

Cited  in  Dillenbeck  v.  Pinnell,  121  Iowa,  203,  96  X.  W.  860,  holding  no  trust 
exists  in  favor  of  heir  in  proceeds  of  property  sold  by  devisee  for  life;  Redkey 
v.  Worthington,  13  Ohio  C.  C.  N.  S.  180,  32  Ohio  C.  C.  56,  holding  that  written 
transfer  of  money  to  trustee  to  distribute  on  donor's  death  to  designated  bene- 
ficiaries is  valid  declaration  of  trust 
Vagueness  and  uncertainty  of. 

Cited  in  O'Xeal  v.  Caul  field,  5  Ohio  N.  P.  151,  holding  bequests  to  charity  will 
be  upheld  if  objects  intended  can  be  ascertained. 
Gifts  for  religions  and  charitable  purposes. 

Cited  in  notes  (32  L.  R.  A.  626)   on  validity  of  gift  to  unincorporated  charity; 
(5  L.  R.  A.  107)   on  bill  for  construction  of  will  and  for  directions  to  trustee. 
Evidence   to   establish   a    trnst. 

Cited  in  Vance  v.  Park.  15  Ohio  C.  C.  716.  holding  parol  evidence  admissible- 
to  establish  trust  as  to  deed  absolute  on  its  face;  De  Lacroix  v.  Eid  Concrete 
Steel  Co.  8  Ohio  N.  P.  XT.  S.  504,  19  Ohio  S.  &  C.  P.  Dee.,  779,  holding  that  evidence 
to  establish  a  trust  must  be  clear,  convincing  and  conclusive. 
Public  charitable  use. 

Cited  in  Chapman  v.  Xewell.  146  Iowa,  421.  125  X.  W.  324,  holding  maintaining 
of  public  cemetery  to  be  a  public  use:  United  Presby.  Theological  Seminary  v- 
Little,  2  Ohio  C.  C.  X.  S.  541,  25  Ohio  C.  C.  611,  holding  theological  seminary 
to  be  a  public  charity. 

Cited  in  note  (63  Am.  St.  Rep.  257,  260,  264)  on  what  are  charitable  uses  or 
trusts. 
Validity  of  gift  to  unincorporated  charity. 

Cited  in  note  (32  L.R.A.  626)  on  validity  of  gift  to  unincorporated  charity. 


2  L.R.A.  753]  L.  E.  A.  CASES  AS  AUTHORITIES.  384 

Creditor's  rights  in  assigned  estates. 

Cited  in  State  Nat.   Bank  v.  Esterly,  69  Ohio  St.   36,  68  N.  E.   582,  holding 
creditor  realizing  on  security  after  proving  claim  entitled  to  dividend  only  on 
unpaid  balance. 
Hona  flde  purchaser  for  value. 

Cited  in  Adlard  v.  Stockstill,  5  Ohio  N.  P.  489,  holding  assignee  not  a  bona 
fide  purchaser  for  value. 
Advances  made  by  trustee. 

Cited  in  Woodard  v.  Wright,  82  Cal.  206,  22  Pac.  1118,  holding  trustee's  right 
to  reimbursement  not  dependent  upon  knowledge  or  consent  of  cestui  que  trust. 
Power  to  trustee  to  charge  trust  estate. 

Cited  in  note  (19  Am.  St.  Rep.  70,  71)  on  power  of  trustee  to  charge  trust  prop- 
erty with  reasonable  expense  of  its  necessary  preservation. 
Status  of  church  congregations. 

Cited  in  Miller  v.  Elder,  7  Ohio  C.  C.  99,  3  Ohio  C  D.  682,  holding  that  arch 
bishop  of  diocese  who  holds  legal  title  to  church  property  as  trustee,  may  recover 
for  amount  expended  for  a  congregation  for  property  where  not  a  gift;  Griggs 
v.  Middaugh,  22  Ohio  L.  J.  367,  10  Ohio  Dec.  Reprint,  646,  on  right  to  church 
property  where  part  of  a  church  membership  withdraws  from  it. 

Distinguished  in  Males  v.  Murray,  3  Ohio  C.  C.  N.  S.  672,  13-23  Ohio  C.  C.  397, 
holding  that  unincorporated  church  congregation  is  not  such  a  legal  entity  as  to 
be  liable  for  a  debt  created  by  its  members. 
Recognition  of  ecclesiastical    polity  by  civil  courts. 

Cited  in  Shepard  v.  East  Orange,  69  N.  J.  L.  138,  53  Atl    1047,  Reversed  in  70 
N.  J.  L.  207,  57  Atl.  441,  on  the  recognition  by  civil  courts  of  ecclesiastical  polity; 
Shepard  v.  East  Orange,  70  N.  J.  L.  207,  57  Atl.  441,  refusing  to  decide  whether 
a  Roman  Catholic  bishop  holds  as  trustee  for  his  diocese. 
Jurisdiction  of  equity  over  religious  societes. 

Cited  in  note  (68  Am.  St.  Rep.  866)  on  jurisdiction  of  equity  over  religious 
societies. 

2  L.  R.  A.  766,  WESTERN  U.  TELEG.  CO.  v.  BROWN,  71  Tex.  723,  10  S.  W.  323. 
Recovery  for  mental  distress. 

Cited  in  Western  U.  Teleg.  Co.  v.  Ferguson,  157  Ind.  75,  54  L.  R.  A.  850,  60 
N.  E.  674,  holding  recovery  cannot  be  had  for  mental  anguish  due  to  delay  in  de- 
livering message;  Western  U.  Teleg.  Co.  v.  Wood,  21  L.  R.  A.  713,  6  C.  C.  A.  453, 
13. U.  S.  App.  317,  57  Fed.  480,  holding  mental  anguish  no  element  in  damages 
for  delay  in  delivering  message;  Western  U.  Teleg.  Co.  v.  Wilson,  93  Ala.  35,  30 
Am.  St.  Rep.  23,  9  So.  414,  holding  nominal  damages  and  damages  for  distress 
of  mind  recoverable  for  delay  in  delivering  message;  Chapman  v.  Western  U. 
Teleg.  Co.  88  Ga.  765,  17  L.  R.  A.  431,  30  Am.  St.  Rep.  183,  15  S.  E.  901,  holding 
sender  of  message  cannot  recover  for  mere  pain  and  anguish  of  mind  caused  by 
nondelivery  of  message;  Western  U.  Teleg.  Co.  v.  Rogers,  68  Miss.  759,  13  L.  R. 
A.  863,  24  Am.  St.  Rep.  300,  9  So.  823,  holding  recovery  cannot  be  had  for  mental 
suffering  only  due  to  lack  of  prompt  delivery  of  message;  Western  U.  Teleg.  Co. 
v.  Ayers,  131  Ala.  394,  90  Am.  St.  Rep.  92,  31  So.  78,  holding  father  of  dying 
child  cannot  recover  damages  for  mental  anguish  arising  from  nondelivery  of 
telegram  summoning  brother-in-law;  Western  U.  Teleg.  Co  v.  Northcutt,  158 
Ala.  559,  132  Am.  St.  Rep.  38,  48  So.  553,  holding  plaintiff  could  not  recover  for 
mental  anguish  caused  by  defendant's  failure  to  deliver  a  telegram  where  the 
plaintiff's  relationship  was  not  disclosed  by  the  telegram;  Helms  v.  Western 
U.  Teleg.  Co.  143  N.  C.  388,  8  L.R.A.(N.S.)  251,  118  Am.  St.  Rep  811,  55  S.  E. 


385  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  708 

831,  10  A.  &  E.  Ann.  Cas.  64,  holding  plaintiff  could  not  recover  for  mental  an- 
guish for  defendant's  failure  to  deliver  a  telegram  sent  by  plaintiffs  son  where 
the  telegram  did  not  disclose  the  relationship  of  the  parties;  Western  U.  Teleg. 
Co.  v.  Chouteau,  28  Okla  686,  —  L.R.A.(N.S.)  — ,  115  Pac.  879,  holding  that  in 
absence  of  statute,  damages  are  not  recoverable  for  mental  distress  alone  from 
negligent  delay  in  delivering  telegram;  Western  U.  Teleg.  Co.  v.  Kibble,  53  Tex. 
Civ.  App.  225,  115  S.  W.  643,  holding  damages  for  mental  suffering  not  recoverable 
for  negligent  delay  in  delivering  telegram  reading,  "Come  at  once." 

Cited  in  footnotes  to  Western  U.  Teleg.  Co.  v.  North  Packing  &  Provision  Co. 
52  L.  R.  A.  274,  which  holds  agent  purchasing  live  stock  through  delay  in  de- 
livering telegram  not  required  to  resell  before  communicating  with  principal,  to 
reduce  damages;  Chapman  v.  Western  U.  Teleg.  Co.  17  L.  R.  A.  430,  which  denies 
recovery  to  person  addressed  for  mental  suffering  from  failure  to  deliver  tele- 
gram; Wilcox  v.  Richmond  &  D.  R.  Co.  17  L.  R.  A.  804,  which  denies  recovery 
for  mental  anguish  from  nonperformance  of  contract;  Connell  v.  Western  U. 
Teleg.  Co.  20  L.  R.  A.  172,  which  denies  recovery  for  mental  distress  for  failure 
to  'deliver  telegram;  International  Ocean  Teleg.  Co.  v.  Saunders,  21  L.  R.  A. 
810,  which  holds  mental  suffering  not  element  of  damage  for  failure  promptly 
to  deliver  telegram;  Western  U.  Teleg.  Co.  v.  Wood,  21  L.  R.  A.  706,  which 
denies  recovery  for  mental  anguish  from  delay  in  delivering  telegram;  McPeek 
v.  Western  U.  Teleg.  Co.  43  L.  R.  A.  214,  which  holds  loss  of  reward  offered  for 
capture  of  criminal  within  damages  recoverable  for  failure  to  deliver  telegram; 
Western  U.  Teleg.  Co.  v.  Adams,  6  L.  R.  A.  844,  which  holds  ignorance  of  rela- 
tions between  parties  to  message  does  not  excuse  neglect  in  delivering;  Western 
TJ.  Teleg.  Co.  v.  Short,  9  L.  R.  A.  744,  which  holds  company  prima  facie  liable 
for  failure  to  deliver  telegram;  Western  U.  Teleg.  Co.  v.  Nye  &  S.  Grain  Co.  63 
L.R.A  803,  which  holds  difference  in  value  between  market  value  of  corn  and 
the  price  at  which  it  could  have  been  sold  the  measure  of  damages  for  negligent 
delay  of  telegram;  Hays  v.  Western  U.  Teleg.  Co.  67  L.R.A.  481,  which  holds  that 
•change  in  telegram  so  as  to  quote  price  of  mules  at  ten  dollars  per  head  less  than 
market  price  resulting  in  sendee's  ordering  purchase  of  designated  number,  ren- 
ders telegraph  company  liable  for  difference  between  price  paid  and  that  stated 
in  telegram. 

Cited  in  notes  (7  L.  R.  A.  583)  on  telegraph  company;  damages  for  neglect 
to  deliver  message;  (13  L.  R.  A.  859,  860)  on  damages  for  mental  anguish  alone 
not  recoverable;  (9  L.  R.  A.  669)  on  telegraph  company;  degree  of  diligence 
required  in  delivery  of  message;  (30  L.R.A.(X.S.)  1117,  1142)  on  right  of  ad- 
dressee of  telegram  to  recover  for  mental  suffering  from  delay  in  delivery;  (10 
Am.  St.  Rep.  790)  on  injury  to  feelings  as  element  of  damages  in  action  against 
telegraph  companies. 

Overruled  in  Western  U.  Teleg.  Co.  v.  Carter,  85  Tex.  585,  34  Am.  St.  Rep. 
•826,  22  S.  W.  961,  holding  relationship  of  parties  named  in  message  not  neces- 
sary to  subject  company  to  liability  for  failure  promptly  to  deliver. 
Breach  of  contract. 

Cited  in  notes  (6  L.  R.  A.  552;  11  L.  R.  A.  681)  on  damages  for  breach  of 
contract;  (18  L.  R.  A.  386)  on  measure  of  damages  for  breach  of  implied  war- 
ranty. 

2  L.  R.  A.  768,  RE  CHAPIN,   148  Mass.  588,  20  N.  E.  195. 

Effect   of  testamentary  trust  on  real  estate  to   eml»race  proceeds. 

Cited  in  Hart  v.  Allen,  166  Mass.  81,  44  X.  E.   116,  holding  proceeds  of  sale 
of  real  estate  subject  to  terms  of  testamentary  trust;  Gardner's  Appeal,  81  Conn. 
L.R.A.  An.  Vol.  I.— 25. 


2  L.R.A.  768]  L.  R.  A.  CASES  AS  AUTHORITIES.  386 

178,  70  Atl    653,  holding  that  proceeds  of  land  were  not  equitably  regarded  as 
land  where  derived  from  exercise  of  a  general  power  in  trustees  to  sell  and  where 
no  intent  to  pass  landed  interests  was  contained  in  the  will. 
Equitable  conversion. 

Cited  in  Staser  v.  Gaar,  S.  &  Co.  168  Ind.  139,  79  X.  E.  404,  holding  on  sale  of 
land  in  partition  proceedings  the  wife  of  a  cotenant  is  entitled  as  against  his 
judgment  creditors  to  the  protection  of  her  share  of  the  proceeds  by  virtue  of 
her  dower  right. 

2  L.  R.  A.  769,  COOK  v.  WALLING,  117  Ind.  9,  10  Am.  St.  Rep.  17,  19  N.  E.  532. 
Married  woman's  contracts. 

Cited  in  Voreis  v.  Nussbaum,  131  Ind.  273,  16  L.  R,  A.  48,  31  N.  E.  70,  hold- 
ing note  executed  by  married  woman  as  surety  for  husband  void  in  hands  of 
bona  fide  purchaser;  Johnson  v.  Jouchert,  124  Ind.  107,  8  L.  R.  A.  796,  24  N.  E. 
580,  holding  deed  by  married  woman  directly  to  husband  void;  Ellison  v.  Bran- 
strator,  153  Ind.  152,  54  N.  E.  433,  holding  valid  a  deed  of  married  woman  execu- 
ted through  attorney,  who  omitted  husband's  name  by  mistake;  Essex  v.  Meyers, 
27  Ind.  App.  639,  62  N.  E.  96,  holding  specific  performance  of  agreement  to  sell 
land  by  married  woman  in  which  her  husband  did  not  join  not  enforceable; 
Shirk  v.  Stafford,  31  Ind.  App.  250,  67  N.  E.  542,  holding  married  woman's  in- 
dividual contract  to  sell  land  constitutes  no  consideration  for  purchase-money 
notes;  Bundy  v.  McClarnon,  118  Ind.  166,  20  N.  E.  718,  stating  married  woman's 
deed  m  which  husband  not  joined  void;  Starkey  v.  Starkey,  166  Ind.  146,  76  N.  E. 
876,  on  necessity  that  husband  join  wife  in  the  execution  of  a  mortgage  of  her 
separate  estate. 

Cited  in  footnote  to  Roop  v.  Real  Estate  Investment  Co.  7  L.  R.  A.  211,  which 
holds  married  woman  not  empowered  to  bind  herself  by  judgment  note. 

Cited   in  notes    (6   L.   R.  A.   559)    on   husband  and  wife;    contracts   between; 
(7  L.  R.  A.  640)   on  wife's  capacity  to  contract;    (8  L.  R.  A.  795)    on  mortgage 
to  secure  husband's  debts;   (13  Am.  St.  Rep.  280)  on  power  of  married  women  to 
contract. 
Estoppel. 

Cited  in  Percifield  v.  Black,  132  Ind.  386,  31  N.  E.  955,  holding  married  woman 
not  estopped  from  setting  up  her  incapacity  to  enter  into  parol  contract  to  con- 
vey her  land;  Chaplin  v.  Baker,  124  Ind.  390,  24  N.  E.  233,  holding  one  not  mis- 
led cannot  plead  estoppel;  Long  v.  Crosson,  119  Ind.  5,  4  L.  R.  A.  784,  21  N.  E. 
450,  holding  married  woman,  with  separate  real  estate  transferred  to  husband 
to  enable  him  to  mortgage,  she  joining,  estopped  to  deny  title;  Dudley  v.  Pigg, 
149  Ind.  371,  48  N.  E.  642,  holding  strangers  to  transaction  cannot  set  it  up  as 
estoppel;  McKinney  v.  Lanning,  139  Ind.  177,  38  N.  E.  601,  holding  party  claim- 
ing interest  in  land  cannot  set  up  estoppel  by  recitals  in  transfer  to  another  to 
which  he  was  not  party  or  privy;  Hickman  v.  Green,  123  Mo.  177,  29  L.  R.  A. 
45,  27  S.  W.  440,  holding  notice  of  defect  in  title  to  agent  employed  only  to  ex- 
change land  not  binding  on  married  woman;  Warner  v.  Watson,  35  Fla.  421,  17 
So.  654,  holding  married  woman  estopped,  against  husband's  creditors,  from  set- 
ting up  claim  to  property  acquired  with  her  money,  but  in  husband's  name; 
Indianapolis  Brewing  Co.  v.  Behnke,  41  Ind.  App  293,  81  N.  E.  119,  holding  a 
married  woman  was  not  estopped  as  against  one  conversant  with  the  facts  from 
denying  that  she  was  principal  in  a  note  to  secure  husband's  debts. 

Cited  in  footnotes  to  Hunt  v.  Reilly,  59  L.  R.  A.  206,  which  holds  wife's 
failure  to  notify  purchaser  of  rights  after  learning  of  forgery  of  her  name  to 
husband's  deed  does  not  estop  her  to  claim  dower;  Wilder  v.  Wilder,  9  L.  R.  A. 
97,  which  holds  married  woman  estopped  to  claim  vendor's  Hen  by  representing 


387  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  773 

that  one  loaning  to  vendee  should  have  first  mortgage ;  National  Granite  Bank  v. 
Tyndalo,  51  L.  R.  A.  447,  which  holds  relief  by  way  of  estoppel  not  available  to 
holder  of  married  woman's  notes  against  defense  that  they  are  void  because  pay- 
able to  husband,  who  indorsed  them;  Grice  v.  Wood  worth,  69  L.R.A.  584,  which 
holds  married  woman  estopped  to  set  up  invalidity  of  contract  by  her  husband 
and  herself  to  sell  homestead  for  failure  to  comply  with  certain  conditions  after 
purchaser  has  paid  purchase  price,  taken  possession,  and  made  valuable  improve- 
ments. 

Cited  in  notes  (12  Am.  St.  Rep.  295)  on  estoppel;;  (57  Am.  St.  Rep.  169,  175, 
180,  182)  on  estoppel  of  married  women. 

2  L.  R.  A.  770,  PEOPLE  ex  rel.  JOHNSON  v.  EICHELROTH,  78  Cal.  141,  20 

Pac.  364. 
Regulations  as  to  practice  of  medicine. 

Cited  in  footnotes  to  State  v.  Pennoyer,  5  L.  R.  A.  709,  which  holds  void  for 
discrimination  act  exempting  old  practitioners  and  nonresidents  from  require- 
ments as  to  license;  State  v.  Bair,  51  L.  R.  A.  776,  which  sustains  statute  re- 
quiring examination  before  state  board  of  examiners,  practice  in  the  state  for 
five  years,  or  certificate  from  medical  school,  before  practising  medicine. 

2  L.  R.  A.  772,  PEOPLE  ex  rel.  COMMONWEALTH  INS.  CO.  v.  COLEMAN,  112 

N.  Y.  565,  20  N.  E.  389. 
Taxation  of  corporations. 

Cited  in  People  ex  rel.  Second  Ave.  R.  Co.  v.  Barker,  72  Hun,  131,  25  N.  Y. 
Supp.  340,  and  People  ex  rel.  Cornell  S.  B.  Co.  v.  Dederick,  161  N.  Y.  204,  55 
N.  E.  927,  holding  indebtedness  of  corporation  should  be  deducted  in  assessment 
of  personal  property. 

Cited  in  note  (58  L.  R.  A.  613)  on  practice  and  procedure  of  assessors  in 
taxation  of  capital  stock  of  corporation  in  United  States. 

2  L.  R.  A.  773,  TRACY  v.  REED,  13  Sawy.  622,  38  Fed.  69. 
To  wliom   property  assessed. 

Cited  in  Allen  v.  Portland,  35  Or.  442,  58  Pac.  509,  holding  assessment  valid 
if  petition  for  improvement  signed  by  beneficial,  though  not  record,  owner;  State 
Trust  Co.  v.  Chehalis  County,  24  C.  C.  A.  588,  48  U.  S.  App.  190,  79  Fed.  286, 
holding  assessors  can  assess  rails  against  the  apparent  owner;  Leigh  v.  Green, 
62  Neb.  353,  89  Am.  St.  Rep.  751,  86  N.  W.  1093,  holding  word  "owner"  was  used 
in  popular  sense  in  provision  to  foreclose  tax  liens;  Bangor  v.  Peirce,  106  Me. 
534,  29  L.R.A  (N.S.)  773,  138  Am.  St.  Rep.  363,  76  Atl.  945,  holding  that  general 
taxes  upon  land  held  in  trust  may  be  assessed  to  holder  of  legal  title  and  such 
holder  is  within  statute  imposing  personal  liability. 

Cited  in  footnote  to  Minneapolis  &  N.  Elevator  Co.  v.  Traill  County,  50  L. 
R.  A.  267,  which  sustains  statute  taxing  grain  in  elevators,  etc.,  in  proprietor's 
name. 

Cited  in  note   (35  L.R.A.(N.S-)   674)   on  property  granted  with  reservation  of 
title  or  lien  in  favor  of  public,  as  subject  of  taxation. 
Who  Is  an  "owner." 

Cited  in  Re  Fifth  Street,  22  Pa.  Super.  Ct.  218.  holding  vendee  in  land  con- 
tract not  an  owner  entitled  to  damages  for  change  of  grade  in  street  before  re- 
ceiving deed. 

Cited  in  note  (24  L.R.A.(N.S.)  1301)  on  contract  purchaser  of  realty  as  owner 
for  purposes  of  taxation. 


2  L.R.A.  773]  L.  R.  A.  CASES  AS  AUTHORITIES.  388 

Foreclosure  of  tax  liens. 

Cited  in  Wells  v.  Johnston,  55  App.  Div.  487,  67  N.  Y.  Supp.  112.  holding  tax 
sale  by  treasurer  under  county  act  subject  to  prior  vested  rights  of  people. 
What  law-  determines  validity  of  tax  sale. 

Cited  in  Sheafer  v.  Mitchell,  109  Term.  211,  71  S.  W.  86,  holding  tax  sale,  valid 
by  law  then  existing,  cannot  be  affected  by  subsequent  legislation. 

Cited   in  note    (4  L.R.A.  (N.S.)    1074)    on  change  of  laws  as  to  effect  of  tax 
certificates  as  evidence  of. title, 
Tax  deed  as  evidence  of  regularity  of  assessments. 

Cited  in  Johnson  v.  Taylor,  150  Cal.  206,  10  L.R.A.(N.S.)  821,  119  Am.  St.  Rep. 
181,  88  Pac.  903,  on  tax  deed  as  evidence  of  the  regularity  of  the  assessment. 

2  L.  R.  A.  779,  ATTRILL  v.  HUNTINGTON,  70  Md.  191,  14  Am.  St.  Rep.  344, 

16  Atl.  651. 
By  what  court  corporation  charter  forfeited. 

Cited  in  Com.  ex  rel.  Kirkpatrick  v.  Western  U.  Teleg.  Co.  1  Dauphin  Co.  Rep. 
150,  holding  Federal  courts  have  no  jurisdiction  of  actions  by  state  to  forfeit 
corporation  charter. 
Enforcing  statute  of  another  state. 

Cited  in  Jones  v.  Fidelity  Loan  &  T.  Co.  7  S.  D.  132,  63  N.  W.  553,  holding 
penal  laws  of  state  not  binding  on  residents  of  another  state;  Huntington  v. 
Attrill,  18  Ont.  App.  Rep.  155  (dissenting  opinion)  ;  Casey  v.  St.  Louis  Transit 
Co.  116  Mo.  App  268,  91  S.  W.  419, — on  courts  as  not  enforcing  the  penal  stat- 
utes of  other  states. 

Cited  in  footnote  to  Midland  Co.  v.  Broat,  17  L.  R.  A.  312,  which  holds  con 
tracts  valid  where  made  enforceable  in  other  state. 

Cited  in  notes   (8  L.  R.  A.  269)   on  foreign  judgments  not  subject  to  collateral 
Impeachment;    (4  L.  R.   A.   132)    on  constitutional  law;   effect  and  validity  of 
foreign  judgments;    (12  L.R.A.(N.S.)    874)    on   action  upon  judgment   recovered 
under  penal  statute  in  another  state. 
Statute  of  limitations. 

Cited  in  footnote  to  State  Sav.  Bank  v.  Johnson,  33  L.  R.  A.  552,  which  holds 
action  to  enforce  liability  of  corporate  trustees  for  failure  to  make  reports  one 
for  penalty,  within  rule  as  to  limitations. 

Cited  in  note  (5  Eng.  Rul.  Cas.  944)  on  conflict  of  laws  as  to  limitations. 

Disapproved  in  Kilton  v.  Providence  Tool  Co.  22  R.  I.  614,  48  Atl.  1039,  hold- 
ing action  against  stockholders  to  enforce  debt  of  company  barred  only  by  twenty 
years'  statute  of  limitations. 
jVature  of  stockholder's  liability  for  debts. 

Cited  in  Miners'  &  M.  Bank  v.  Snyder,  100  Md.  67,  68  L.R.A.  315,  108  Am. 
St.  Rep.  390,  59  Atl.  707,  on  liability  of  stockholder  for  corporate  debts  as  not 
constituting  corporate  assets. 
Enforcement  of  stockholders  liability. 

Cited  in  Myers  v.  Knickerbocker  Trust  Co.  1  L.R.A.  (N.S.)  1175,  71  C.  C.  A. 
199,  139  Fed.  114,  on  the  enforcement  of  stockholder's  liability  for  corporate 
•debts. 

2  L.   R.  A.   784,   BENTZ  v.   NORTHWESTERN   AID  ASSO.   40  Minn.   202,   41 

N.  W.  1037. 
Claim  nu.-i  inst  mutual  accident  company. 

Cited  in  Union  Mut.  Acci.  Asso.  v.  Frohard..  134  111.  239,  10  L.  R.  A.  386,  23 
Am.  St.  Rep.  664,  25  N.  E.  642,  holding  presumption  is  that  claim  would  have 


389  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  786 

been  paid  in  full  had  assessment  been  made  by  mutual  accident  association; 
Thompson  v.  Piedmont  Mut.  Ins.  Co.  77  S.  C.  492,  58  S.  E.  341,  holding  an  action 
at  law  will  lie  for  damages  for  breach  of  contract  to  make  an  assessment; 
Batson  v  South  Carolina  Mut.  Ins.  Co.  78  S.  C.  311,  58  S.  E.  936,  holding  where 
company  denies  all  liability  and  refuses  to  make  an  assessment  an  action  at  law 
may  be  maintained  for  the  sum  as  damages  for  breach  of  contract;  Union  Mut. 
Acci.  Asso.  v.  Frohard,  134  111.  239,  10  L.R.A.  386,  23  Am.  St.  Rep.  664,  25  N.  E. 
642,  holding  where  officers  wrongfully  refused  to  levy  upon  members  to  pay  a 
certificate  given  to  a  member  a  court  of  equity  may  compel  the  levy. 

Cited  in  notes  (44  L.  R.  A.  855)  on  mutual  benefit  association;  remedy  for 
refusal  to  levy  assessment  to  meet  death  claims;  (8  L.  R.  A.  116)  on  contract  of 
mutual  benefit  association;  (2  L.  R.  A.  788)  on  actions  on  certificate  of  mutual 
benefit  association;  (15  Am.  St.  Rep.  437;  52  Am.  St.  Rep.  577,  578)  on  remedy 
of  beneficiary  when  mutual  society  refuses  to  make  assessments 
Estoppel  of  insured  or  beneficiary. 

Cited  in  Modern  Woodmen  v.  Davis,  184  111.  238,  56  N.  E.  300,  holding  bene- 
ficiary not  estopped,  by  affidavit  of  physician  filed  by  her,  to  show  true  cause  of 
death;  Hogan  v.  Metropolitan  L.  Ins.  Co.  164  Mass.  449,  41  N.  E.  663,  holding 
beneficiary  in  policy  not  estopped  to  show  deceased  did  not  have  disease  at  time 
of  application;  Stevens  v.  Continental  Casualty  Co.  12  N.  D.  472,  97  N.  W.  862, 
holding  recitals  in  preliminary  proofs  of  death,  cannot  ordinarily  be  considered 
as  admissions  or  estoppels,  so  as  to  prevent  a  showing  of  the  true  facts  upon  the 
trial. 

Cited  in  notes  (44  L.R.A.  855)  on  conclusiveness  of  proof  of  loss  as  against 
insured  or  his  beneficiaries;  (52  Am.  St.  Rep.  564)  on  estoppel  of  beneficiary  as 
to  proofs  of  death. 

2  L.  R.  A.  786,  JACKSON  v.  NORTHWESTERN  MUT.  RELIEF  ASSO.  73  Wis. 

507,  41  N.  W.  708. 
Legal   action    to   compel   benefit   society   to   make   assessment. 

Cited  in  Silvers  v.  Michigan  Mut.  Ben.  Asso.  94  Mich.  47,  53  N.  W.  935;  Cove- 
nant Mut.  Life  Asso.  v.  Kentner,  89  111.  App.  498;  O'Brien  v.  Home  Benefit  Soc. 
117  N.  Y.  319,  22  N.  E.  954,  —  holding  action  at  law  maintainable  upon  refusal 
of  benefit  society  to  make  assessment;  Thompson  v.  Piedmont  Mut.  Ins.  Co.  77 
S.  C.  492,  58  S  E.  341,  holding  the  insured  in  a  mutual  assessment  insurance 
policy  providing  that  no  suit  should  be  brought  thereon  until  assessment  made, 
might  where  loss  occurs  sue  on  policy  before  bringing  action  to  compel  the  as- 
sessment; Batson  v.  South  Carolina  Mut.  Ins.  Co.  78  S.  C.  311,  58  S.  E.  936, 
holding  insured  under  mutual  assessment  might  sue  for  breach  of  contract  where 
company  refuses  to  make  an  assessment. 

Cited  in  footnote  to  Bentz  v.  Northwestern  Aid  Asso.  2  L.  R.  A.  784,  which 
holds  action  at  law  remedy  for  breach  of  contract  to  make  death  assessments. 

Cited  in  notes   (4  L.  R.  A.  382;   7  L.  R.  A.  189)   as  to  remedy  for  refusal  to 
levy  assessment;    (S  L.  R.  A.   115)    as  to  damages  for  neglect  to  make  assess- 
ment;   (15  Am.  St.  Rep.  437;   52  Am.  St.  Rep.  578)   on  remedy  of  beneficiary 
when  mutual  society  refuses  to  make  assessments. 
Sufficiency  of  complaint. 

Cited  in  Johns  v.  Northwestern  Mut.  Relief  Asso.  87  Wis.  113,  58  N.  W.  76, 
holding  complaint  states  facts  entitling  plaintiff  to  money  judgment  on  con- 
tract for  substantial  damages. 


2  L.R.A.  789]  L.  R.  A.  CASES  AS  AUTHORITIES.  390 

2  L.  R.  A.  789,  ASTOR  v.  NEW  YORK  ARCADE  R.   CO.   113   N.  Y.   93,  20 

N.  E.  594. 
Title  of  statute. 

Followed  without  opinion  in  Bailey  v.  New  York  Arcade  R.  Co.  113  X.  Y.  615. 

Cited  in  Parker  v.  Elmira,  C.  &  N.  R.  Co.  165  N.  Y.  278,  59  N.  E.  81,  holding 
"to  authorize  railroad  company  to  extend  road,  and  confirm  purchase,  and  for 
other  purposes"  covers  provision  for  maximum  rate  chargeable  per  mile;  Re 
Clinton  Ave.  57  App  Div.  169,  68  N.  Y.  Supp.  196,  holding  "in  relation  to  Clin- 
ton avenue"  covers  proper  provisions  relating  to  increase  in  width  of  street; 
Van  Brunt  v.  Flatbush,  128  N.  Y.  54,  27  N.  E.  973,  holding  "local  improvements 
in  town  of  Flatbush"  sufficient  to  cover  provision  for  necessary  construction  of 
outlet  trunk  sewer  through  town  of  Flatlands;  Sweet  v.  Syracuse,  129  X.  Y.  332, 
27  N.  E.  1081,  holding  "establish  and  maintain  water  department  in  and  for 
Syracuse"  to  embrace  establishment  and  detailed  organization  of  water  depart- 
ment; People  v.  Doxtater,  75  Hun,  479,  27  N.  Y*.  Supp.  481,  holding  "to  prevent 
taking  fish  from  waters  of  Lake  Ontario  adjacent  to  shore  or  inland  waters  of 
county"  covers  private  lake  in  county;  Curtin  v.  Barton,  139  X.  Y.  513,  34  N.  E. 
1093,  holding  "establish  municipal  court"  embraces  abolition  of  justice  of  peace 
and  justice's  court;  Sweet  v.  Syracuse,  60  Hun,  33,  14  X.  Y.  Supp.  421,  holding 
"establish  and  maintain  water  department"  covers  provisions  for  supplying  city 
with  water;  New  York  v.  Gorman,  26  App.  Div.  193,  49  X.  Y.  Supp.  1026,  hold- 
ing "in  relation  of  office  of  sheriff"  covers  new  system  of  management  and  admin- 
istration of  office ;  Wilcox  v.  Baker,  22  App.  Div.  303,  47  X.  Y.  Supp.  900,  holding 
"to  facilitate  construction  of  railroad  and  to  authorize  towns  to  subscribe  to 
capital  stock  thereof"  covers  amendment  providing  for  continued  assessment  of 
property  subject  to  tax  at  time  of  original  act;  People  ex  rel.  Dee  v.  Backus,  11 
App.  Div.  149,  42  N.  Y.  Supp.  899,  holding  "in  relation  to  office  of  district  attor- 
ney, providing  for  election  of  district  attorney,"  etc.,  covers  express  repeal  of 
act  creating  office  of  county  detective;  Dyker  Meadow  Land  &  Improv.  Co.  v. 
Cook,  3  App.  Div.  168,  38  N.  Y.  Supp.  222,  holding  "amendment  of  title  and  act 
'relating  to  assessment  of  real  property  in  Brooklyn' "  covers  exemption  of  any 
land  in  county  of  Kings;  State  ex  rel.  Standish  v.  Nomland,  3  X.  D.  432,  44  Am. 
St.  Rep.  572,  57  X.  W.  85,  holding  "creating  office  of  state  board  of  auditors  and 
prescribing  duties  thereof"  not  indicative  of  provision  for  security  and  augmenta- 
tion of  state  funds;  Fort  v.  Cummings,  90  Hun,  485,  36  X.  Y.  Supp.  36,  holding 
legislature  authorized  to  pass  any  act  germane  to  subject  intrusted  to  its  su- 
pervision by  Constitution;  Re  Buffalo,  46  N.  Y.  S.  R.  85,  18  X.  Y.  Supp.  771, 
holding  "select  and  locate  grounds  desirable  for  park"  not  indicative  of  pro- 
vision changing  method  of  procedure  in  exercise  of  right  of  eminent  domain  under 
charter;  Coxe  v.  State,  144  N.  Y.  409,  39  N.  E.  400,  holding  "drain  marsh  lands" 
not  indicative  of  grant  of  lands  under  water;  Rogers  v.  Union  R.  Co.  10  Misc. 
59,  30  N.  Y.  Supp.  855,  holding  "to  amend  act,"  etc.,  "as  subsequently  amended" 
not  indicative  of  ratification  of  all  proceedings  under  the  act;  Lindsay  v.  United 
States  Sav.  &  L.  Asso.  120  Ala.  173,  42  L.  R.  A.  788,  24  So.  171,  holding  "to  regu- 
late business  of  building  and  loan  association"  not  indicative  of  legalization  of 
past  transactions  of  associations;  Coiscadden  v.  Haswell,  41  Misc.  62,  82  X.  Y. 
Supp.  347,  holding  provision  for  removal  of  superintendent  of  penitentiary  not 
within  title  purporting  to  relate  to  his  salary  only;  Turner  v.  Coffin,  9  Idaho, 
362,  74  Pac.  962,  on  how  title  to  legislative  act  is  to  be  construed  under  consti- 
tutional provision  requiring  subject  of  act  to  be  embraced  in  the  title;  Pond 
Creek  v.  Haskell,  21  Okla,  742,  97  Pac.  338;  Economic  Power  &  Constr.  Co.  v. 
Buffalo,  195  X.  Y.  296,  88  N.  E.  389,— on  necessity  that  title  of  act  fairly  suggest 
subjects  dealt  with  in  act. 


391  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  798 

Cited  in  footnotes  to  Judson  v.  Bessemer,  4  L.  R.  A.  742,  which  holds  pro- 
vision authorizing  issue  of  municipal  bonds  within  title;  Thomas  v.  Wabash, 
St.  L.  &  P.  R.  Co.  7  L.  R.  A.  145,  which  holds  provision  limiting  rights  in  water 
to  railroad  companies  owning  landings  not  within  title;  Millvale  v.  Evergreen 
R.  Co.  7  L.  R.  A.  369,  holding  title  referring  merely  to  title  of  prior  act  suffi- 
cient -where  subject-matter  merely  supplemental;  Hronek  v.  People,  8  L.  R.  A. 
837,  holding  statute  regulating  manufacture,  as  well  as  prohibiting  same  for 
certain  purpose,  not  invalid. 
Grant  of  new  rights  under  gnise  of  amendment. 

Cited  in  Auchincloss  v.  Metropolitan  Elev.  R.  Co.  69  App.  Div.  69,  74  N.  Y. 
Supp.  534,  holding  act  conferring  upon  railroad  company  right  to  lay  tracks 
in  addition  to  those  authorized  by  charter  acquired  by  it  from  previous  com- 
pany unconstitutional. 

Distinguished  in  Re  Third  Ave.  R.  Co.  121  N.  Y.  541,  9  L.  R.  A.  126,  24  N.  E. 
951,  holding  statute  authorizing  change  of  motor  power  not  in  conflict  with 
constitutional  provision  that  consent  of  local  authorities  be  obtained  for  "con- 
struction" of  railway. 

2  L.  R.  A.  795,  LIBBEY  v.  MASON,  112  N.  Y.  525,  20  N.  E.  355. 
Special  proceeding? Final  order. 

Cited  in  Tilden  v.  Aitkin,  37  App.  Div.  30,  55  N.  Y.  Supp.  735,  to  point, 
proceeding  to  compel  accounting  by  administrator  is  a  special  proceeding;  Re 
Board  of  Education,  34  N.  Y.  S.  R.  493,  11  N.  Y.  Supp.  780,  holding  proceeding 
to  acquire  lands  for  school  purposes  a  special  proceeding,  terminating  in  final 
order. 
Necessity  of  entry  of  judgment. 

Cited  in  note  (28  L.  R.  A.  629)  as  to  what  entry  necessary  to  complete  judg- 
ment. 
Right  to  letters  of  administration. 

Cited  in  Re  Moulton,  32  N.  Y.  S.  R.  637,  10  N.  Y.  Supp.  717,  holding  widow 
has  prior  statutory  right  to  letters  of  administration;  Re  Bailey,  31  Nev.  382,  103 
Pac.  232,  Ann.  Cas.  1912  A,  743;  Re  Campbell,  192  N.  Y.  316,  18  L.R.A.(X.S.) 
607,  85  N.  E.  392,  affirming  123  App.  Div.  214,  108  N.  Y.  Supp.  281,— holding 
right  to  letters  of  administration  is  not  affected  by  fact  that  party  entitled  to 
is  not  a  resident  of  the  state. 

Cited  in  notes  (113  Am.  St.  Rep.  563;  1  L.R.A.(N.S.)  347,  348)  on  right  of 
nonresidents  to  act  as  executors  or  administrators. 

2  L.  R.  A.  796,  TILGE  v.  BROOKS,   124  Pa.  178,  16  Atl.  746. 
Nature  of  partnership  association. 

Cited  in  footnote  to  Edwards  v.  Warren  Linoline  &  Gasoline  W&rks,  38  L.  R. 
A.   791,   which   holds  partnership  association   organized  under   laws  of  Pennsyl- 
vania  regarded   as   partnership,    instead   of   corporation,   in   Massachusetts. 
Termination  of  liability  of  special  partner. 

Cited  in  note  (19  Eng.  Rul.  Cas.  769)  on  necessity  of  notice  of  withdrawal 
to  terminate  liability  of  special  partner. 

2  L.  R.  A.  798,  COM.  v.  DELAWARE  DIVISION  CANAL  CO.   123  Pa.  594.  16 

Atl.  584. 

Followed  without  discussion  in  Com.  v.  J.  Langdpn  &  Co.  1  Dauphin  Co.  Rep. 
125;  Com.  v.  Chester,  123  Pa.  640,  16  Atl.  591;  Com.  v.  Hillside  Coal  &  I.  Co. 
1  Pa,  Dist.  R.  742. 


2  L.R.A.  798]  L.  R.  A.  CASES  AS  AUTHORITIES.  392 

Collection  of  tax  by  corporation. 

Cited  in  Com.  v.  Delaware  &  H.  Canal  Co.  150  Pa.  249,  24  Atl.  599;  and 
Com.  v.  Union  Traction  Co.  192  Pa.  514,  43  Atl.  1010,  holding  corporation  re- 
sponsible for  collection  of  tax;  Com.  v.  Wilkes-Barre  &  S.  R.  Co.  14  Pa. 
Co.  Ct.  210,  and  Com.  v.  Lehigh  Valley  R.  Co.  129  Pa.  457,  18  Atl.  406, 
holding  corporation  responsible  for  failure  of  its  treasurer  to  collect  and 
pay  over  to  state  the.  tax  on  loans ;  Com.  v.  Union  Traction  Co.  1  Dauphin  Co. 
Rep.  177,  to  point  that  act  June  30,  1885,  makes  corporations  responsible  for 
collection  of  tax  by  deducting  it  from  interest  paid  by  its  treasurer  upon  evi- 
dences of  indebtedness  issued  by  corporation;  Com.  v.  Lehigh  Valley  R.  Co.  186 
Pa.  246,  40  Atl.  491,  holding  corporation  chargeable  as  collector,  and  upon 
failure  to  collect;  Com.  v.  Pennsylvania  Salt  Mfg.  Co.  145  Pa.  55,  22  Atl.  215, 
to  point  that  corporate  treasurer  may  be  required  by  statute  to  assess  tax ; 
Wilkes-Barre  Deposit  &  Sav.  Bank  v.  Wilkes-Barre,  148  Pa.  603,  24  Atl.  Ill, 
holding  corporate  treasurers  required  by  statute  to  assess  and  collect  tax;  Com. 
v.  Philadelphia  &  R.  Coal  &  I.  Co.  137  Pa.  491,  20  Atl.  531,  Affirming  2  Dauphin 
Co.  Rep.  405,  holding  it  duty  of  treasurer  of  corporation  in  hands  of  receiver 
to  assess  tax,  and  of  receiver  to  pay  it;  Com.  v.  Philadelphia,  33  W.  N.  C.  107, 
holding  municipal  corporation  liable  for  the  failure  of  its  treasurer  to  collect 
and  pay  tax  on  loans;  Com.  v.  Wilkes-Barre  &  S.  R.  Co.  162  Pa.  619,  29  Atl. 
696,  to  point  that  same  tax  assessed  by  corporation  should  be  retained  and  paid 
to  state;  Com.  v.  New  York,  L.  E.  &  W.  R.  Co.  150  Pa.  239,  24  Atl.  609,  holding 
statute  requiring  deduction  of  state  tax  by  corporate  officers  on  payment  of 
interest  on  bonds  constitutional;  Com.  v.  Jarecki  Mfg.  Co.  204  Pa.  40,  53  AtL 
517,  holding  act  exempting  companies  holding  bonds  as  part  of  capital  stock 
from  tax  thereon  relieves  debtor  company  from  duty  to  deduct  tax  from  interest; 
Coal  Ridge  Improv.  &  Coal  Co.  v.  Jennings,  127  Pa.  399,  17  Atl.  986,  holding  act 
1885,  requiring  corporation  to  collect  tax  on  its  securities,  does  not  violate  uni- 
formity rule;  Re  Wyoming  Valley  Ice  Co.  145  Fed.  269;  Com  v.  Clairton  Steel 
Co.  222  Pa.  295,  71  Atl.  99, — on  duty  of  corporation  to  collect  a  tax  imposed  upon 
it  and  pay  it  into  state  treasury;  Com.  v.  Clairton  Steel  Co.  229  Pa.  248,  78  Atl. 
131,  holding  corporation  failing  to  deduct  tax  on  bonds  from  interest  thereon, 
liable  for  tax. 
Classification  of  subjects  of  taxation. 

Cited  in  Com.  v.  Westinghouse  Electric  Mfg.  Co.  151  Pa.  272,  24  Atl.  1107; 
Williamsport  v.  Wenner,  172  Pa.  182,  33  Atl.  544;  Western  U.  Teleg.  Co.  v. 
State,  146  Ind.  61,  44  N.  E.  793, —  holding  legislature  has  power  to  classify 
subjects  for  taxation;  Com.  use  of  Titusville  v.  Clark,  195  Pa.  639,  57  L.  R.  A. 
350,  86  Am.  St.  Rep.  694,  46  Atl.  286,  holding  that  classification  for  taxation 
should  avoid  gross  inequality;  Kingsley  v.  Merrill,  122  Wis.  197,  67  L.R.A.  205, 
99  N.  W.  1044,  2  A.  &  E.  Ann.  Cas.  748,  holding  statute  making  debts  due  from 
solvent  debtors  subject  to  taxation  does  not  violate  constitutional  requirement 
that  taxation  be  uniform,  on  the  theory  that  statute  distinguishes  between  debts 
due  from  solvent  and  insolvent  debtors;  State  ex  rel.  Foot  v.  Bazille,  97  Minn. 
20,  6  L.RJMN.S.)  739,  106  N.  W.  93,  7  A.  &  E.  Ann.  Cas.  1056.  on  the  classifica- 
tion of  persons  and  property  for  the  purpose  of  taxation  as  upheld  by  the  court; 
Jermyn  v.  Scranton,  212  Pa.  602,  62  Atl  29,  on  the  power  of  the  legislature  to 
classify  subjects  of  taxation;  Delaware,  L.  &  W.  R.  Co.  v.  Tax  Assessment,  224 
Pa.  243,  73  Atl.  429,  on  substantial  uniformity  as  sufficient  in  the  levy  and 
assessment  of  taxes. 
Classification  of  corporations. 

Cited  in  Com.  v.  Germania  Brewing  Co.  145  Pa.  87,  22  Atl.  240,  Affirming  4 
Dauphin  Co.  Rep.  56,  holding  exception  of  classes  of  corporations  from  taxation 


393  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  798 

does  not  violate  uniformity:  Com.  v.  Sharon  Coal  Co.  164  Pa.  304,  30  Atl.   127, 
holding  that  legislature  cannot  discriminate  between  corporations  in  same  class. 

Cited  in  note  (60  L.  R.  A.  340,  341,  345,  348,  353)  on  classification  of  corpora- 
tions for  purpose  of  taxation. 
Dealers  or  peddlers. 

Cited  in  Knisely  v.  Cotterel,  196  Pa.  619,  50  L.  R.  A.  90,  46  Atl.  81,  Affirming 
3  Dauphin  Co.  Rep.  123,  holding  venders  or  dealers  in  merchandise  may,  for 
purposes  of  taxation  be  classified  as  wholesalers  and  retailers;  Com.  use  of 
Titusville  v.  Clark,  195  Pa.  638,  57  L.  R.  A.  350,  86  Am.  St.  Rep.  694,  46 
Atl.  286,  Affirming  21  Pa.  Co.  Ct.  500,  10  Pa.  Super.  Ct.  511,  upholding  classi- 
fication for  taxation  of  wholesale  and  retail  dealers  in  accordance  with  amount 
of  business  transacted;  New  Castle  v.  Cutler,  15  Pa.  Super.  Ct.  624,  holding 
classification  of  peddlers  for  taxation  according  to  amount  of  goods  carried, 
with  additional  tax  upon  horse  and  wagon,  except  gardeners,  does  not  violate 
constitutional  requirement  of  uniformity. 
Lodging  bouses. 

Cited  in  Com.  v.  Muir,  1  Pa.  Super.  Ct.  581,  38  W.  N.  C.  331,  upholding  right 
to  classify  lodging  houses  for  purpose  of  taxation. 
Tax  on  capital  stock. 

Cited  in  Com.  v.  Brush  Electric  Light  Co.  145  Pa.  154,  22  Atl.  844,  holding 
act  1879,  §  4,  as  to  method  of  rating  corporate  stock  for  taxation,  does  not 
violate  uniformity;  Com.  v.  National  Oil  Co.  157  Pa.  523,  27  Atl.  374,  holding 
statute  making  capital  stock  distinct  class  of  investments  for  taxation  does 
not  violate  uniformity;  Com.  v.  Delaware  &  H.  Canal  Co.  1  Dauphin  Co.  Rep. 
274,  holding  tax  on  capital  stock  imposed  by  acts  1877,  1879,  not  objectionable 
for  want  of  uniformity;  Com.  v.  Merchants'  &  M.  Nat.  Bank,  168  Pa.  314,  31 
Atl.  1065,  holding  provision  exempting  from  local  taxation  banks  paying  spec- 
ified state  tax  on  par  value  of  their  shares,  but  imposing  on  those  which  do 
not  tax  upon  actual  value  of  shares,  not  unconstitutional  for  want  of  uni- 
formity; Com.  v.  Mortgage  Trust  Co.  227  Pa.  180,  76  Atl.  5,  upholding  legislative 
act  valuing  capital  stock  of  trust  companies  according  to  capital  and  surplus  al- 
though in  determining  the  value  of  the  stock  the  selling  value  in  the  open  market 
was  not  taken  into  consideration. 
Corporate  liability  to  taxation. 

Followed  in  Com.  v.  Philadelphia  &  R.  Coal  &  I.  Co.  137  Pa.  491,  20  Atl. 
531,  as  to  liability  of  corporation  to  taxation. 

Cited  in  Com.  v.  William  Cramp  &  Sons,  Ship  &  Engine  Bldg.  Co.  2  Dauphin 
Co.  Rep.  399,  holding  indebtedness  due  to  an'd  held  by  Pennsylvania  corpora- 
tions in  their  own  right  not  taxable;  Com.  v.  Thirteenth  &  F.  Streets  Pass. 
R.  Co.  2  Dauphin  Co.  Rep.  393,  holding  corporation  liable  to  tax  upon  whole 
amount  of  indebtedness  upon  treasurer's  failure  to  show  any  part  due  to  non- 
residents. 

Cited  in  footnotes  to  Re  Whiting,  34  L.  R,  A.  232,  which  holds  bonds  of 
foreign  corporation  within  state,  though  owned  by  nonresident,  subject  to  trans- 
fer tax;  Vermont  &  C.  R.  Co.  v.  Vermont  C.  R.  Co.  10  L.  R.  A.  562,  which 
holds  railroad  lessor  liable  for  gross  earnings  tax;  State,  Singer  Mfg.  Co..  Pros- 
ecutor, v.  Heppenheimer,  32  L.  R.  A.  643,  which  holds  company  exempt  from 
taxation  under  exemption  of  its  shares. 

Cited   in   note    (57   L.   R.   A.   87)    on   conditions  upon   privilege  of   exercising 
corporate   franchises. 
Pennsylvania  revenne  system. 

Cited   in    Perry    County    v.    Troutman,    8    Pa.    Co.    Ct.    428,    Affirmed    in    144 


2  L.R.A.  798]  L.  R.  A.  CASES  AS  AUTHORITIES.  394 

Pa.   362,  22  Atl.  705,  to  point  that  act  of   1844  is  beginning  of  present  Penn- 
sylvania  revenue   system. 
When  tax  payable. 

Cited  in  Com.  v.  Lehigh  Valley  R.  Co.  129  Pa.  447,  18  Atl.  406,  holding  stat- 
ute requiring  annual  payment  of  state  tax  refers  to  calendar  year  if  no  date 
set   for   its   commencement. 
Taxation  of  judgments. 

Cited    in    footnote   to   Hamilton    v.    Wilson,    48    L.    R.    A.    238,    which    holds 
void  statute  for  taxation  of  personal  judgments  with   specified  exceptions. 
—  Of  debts. 

Cited  in  Beck's  Appeal,  13  Pa.  Dist.  R.  776,  9  North.  Co  Rep.  229,  holding  a 
mortgage  given  as  collateral  and  to  secure  a  lien  is  not  taxable. 

2  L.  R.  A.  805,  UNITED  STATES  v.  HUTCHESON,  39  Fed.  540. 
Adjustment  of  postmaster's  accounts. 

Cited  in  United  States  v.  Miller,  8  Utah,  34,  .28  Pac.  957,  holding  postmaster's 
compensation  cannot  be  withheld  after  his  accounts  have  been  adjusted;  United 
States  v.  Case,  49  Fed.  271,  holding  Postmaster  General  cannot  charge  postmas- 
ter with  commission  on  false  returns  when  accounts  have  been  allowed;  Nor- 
ton v.  United  States,  26  C.  C.  A.  639,  52  U.  S.  App.  296,  81  Fed.  821,  holding 
postmaster  can  defend  suit  on  bond  by  showing  that  money  never  came  to  his 
hand,  without  having  same  disallowed  by  auditor. 

2  L.  R.  A.  808,  WHEELER  v.  McGUIRE,  86  Ala.  398,  5  So.   190. 
Liability  of  principal. 

Cited  in  Sweetser  v.  Shorter,  123  Ala.  522,  26  So.  298,  holding  principal 
bound  by  agreement  of  general  agent  to  construct  houses;  Kansas  City,  M.  &. 
B.  R.  Co.  v.  Higdon,  94  Ala.  290,  14  L.  R.  A.  518,  33  Am.  St.  Rep.  'l!9,  10 
So.  282,  holding  railroad  responsible  for  loss  of  dog  accepted  by  baggage  master 
for  conveyance;  Drennan  v.  Boice,  19  Misc.  643,  44  N.  Y.  Supp.  394,  holding 
action  against  agent  after  disclosure  of  principal  barred  action  against  prin- 
cipal; Fowle  v.  Outcalt,  64  Kan.  358,  67  Pac.  889,  holding  owner  of  note  who 
allowed  another  to  collect  moneys  on  it  bound  by  payments;  Continental  F. 
Ins.  Co.  v.  Brooks,  131  Ala.  620,  30  So.  876,  holding  waiver  by  general  agent 
of  insurance  company,  with  power,  binding,  where  party  ignorant  of  termina- 
tion of  agency. 

Cited  in  footnote  to  Slater  v.  Capital  Ins.  Co.  23  L.  R.  A.  181,  which  holds 
binding  on  company  waiver  of  proofs  of  loss  as  to  building,  by  adjuster  sent 
to  adiust  loss  on  contents. 

Cited  in  notes    (8  L.  R.  A.  74)    on  what  constitutes  waiver  of  conditions  in 
fire  insurance;    (2  L.  R.  A.  749)    on  principal  not  liable  when  credit  given  ex- 
clusively to  agent;  (88  Am.  St.  Rep.  780,  781)  on  liability  of  principal  for  unau- 
thorized acts  of  agent. 
Constructive   notice   to   principal. 

Cited  in  Goodbar  v.  Daniel,  88  Ala.  590,  16  Am.  St.  Rep.  76,  7  So.  254,  hold- 
ing knowledge  of  husband  of  fraudulent  deed,  while  agent  of  wife,  construc- 
tively imputed  to  her;  Meyers  v.  Gerhart,  54  Wash.  664,  103  Pac.  1114,  holding- 
knowledge  of  defendant's  agent  acquired  -while  employed  by  defendant's  assignors,, 
of  such  assignors'  wrongful  acts  was  not  imputable  to  defendants. 

Cited  in  note  (24  Am.  St.  Rep.  230)  on  notice  to  agent  as  notice  to  principal, 
Agent's  antbority. 

Cited    in    Montgomery    Furniture    Co.    v.    Hardaway,    104    Ala.    115,    16    So.. 


395  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  813 

29,  holding  general  agent's  authority  prima  facie  coextensive  with  employ- 
ment; Aldrich  v.  Wilmarth,  3  S.  D.  528,  54  N.  W.  811,  holding  agent  had  os- 
tensible authority  to  order  work,  and  contractor  justified  in  believing  him  au- 
thorized; Insurance  Co.  of  N.  A.  v.  Thornton,  130  Ala.  237,  55  L.  R.  A.  551,  89 
Am.  St.  Rep.  39,  30  So.  614  (dissenting  opinion),  majority  holding  that  general 
agent  for  prescribed  area  cannot  bind  company  outside  of  it. 

Cited  in  footnote  to  Fay  v.  Slaughter,  56  L.  R.  A.  564,  which  denies  author- 
ity of  agent,  empowered  to  indorse  principal's  checks  for  deposit,  to  ratify 
deposit  of  checks  received  for  securities  on  which  agent  has  forged  transfers. 

Cited  in  note  (2  L.  R.  A.  824)  on  private  restrictions  on  agent's  authority 
not  to  affect  third  persons. 

Distinguished  in  Witcher  v.  Gibson,  15  Colo.  App.  170,  61   Pac.  192,  holding 
power   inferred   from   what   principal   knowingly   permitted   agent  to   do. 
Ratification  of  agent's  acts. 

Cited  in  Sullivan  v.  Louisville  &  N.  R.  Co.  128  Ala.  104,  30  So.  528,  hold- 
ing unauthorized  acts  of  agent  not  shown  to  have  been  ratified;  John  Gund  Brew- 
ing Co.  v.  Tourtelotte,  108  Minn.  75,  29  L.R.A.(N.S.)  212,  121  N.  W.  417,  holding 
that  principal  did  not  ratify  unknown  unauthorized  assignment  by  agent  to 
purchaser  of  rent  pending  negotiations  for  sale  of  realty. 

Cited  in  footnotes  to  Daniels  v.  Brodie,  11  L.  R.  A.  81,  which  holds  agent's 
acceptance  of  goods  ratified  by  keeping  part  of  same;  Thompson  v.  New  South 
Coal  Co.  62  L.  R.  A.  551,  holding  principal's  acceptance  of  portion  of  pur- 
chase money  no  ratification  of  agent's  unauthorized  sale. 

Cited  in  notes  (7  L.R.A.  405)  on  principal  and  agent;  effect  of  ratification  of 
acts  of  agents;    (13  Am.  St.  Rep.  Ill)   on  ratification  of  unauthorized  sale  of 
real  estate  by  agent. 
Admissibility  of  evidence  as  to  power  of  agent. 

Cited  in  Cawthon  v.  Lusk,  97  Ala.  676,  11  So.  731,  holding  usages  of  trade 
admissible  to  interpret  powers  under  written  instrument  of  agency;  Western 
U.  Teleg.  Co.  v.  Cunningham,  99  Ala.  317,  14  So.  579,  holding  private  instruc- 
tions by  telegraph  company  to  agent,  forbidding  him  to  waive  payment  for  mes- 
sage till  following  day,  inadmissible;  Lytle  v.  Bank  of  Dothan-  121  Ala.  218,  26 
So.  6,  holding  the  giving  of  other  notes  competent  to  show  agent's  implied 
power  to  give  notes  in  suit;  A.  G.  Rhodes  Furniture  Co.  v.  Weeden,  108  Ala. 
257,  19  So.  318,  holding  secret  instructions  to  general  manager  to  rent  by  month 
only  inadmissible;  Hawkins  v.  Windhorst,  77  Kan.  676,  17  KR.A.fX.S.)  221,  127 
Am.  St.  Rep  445,  96  Pac.  48,  holding  where  issue  whether  husband  had  authority 
as  agent  of  wife  to  sign  her  name  to  a  check  on  her  bank  account,  evidence  that 
be  frequently  did  so  with  her  knowledge  is  competent. 
Agent's  liability. 

Cited  in  note    (12  L.  R.  A.  346)    on  responsibility  of  agent  on  his  contracts. 

2  L.  R.  A.  813,  BIELENBERG  v.  MONTANA  UNION  R.  CO.  8  Mont.  271,  20 

Pac.    314. 
Followed   without  discussion   in   Thompson  v.   Northern   P.   R.   Co.   8  Mont. 

283,   21   Pac.  25. 

Validity    of    statntes    making    railroad    company    absolutely    liable    fo* 
injury. 

Cited  in  Cateril  v.  Union  P.  R.  Co.  2  Idaho,  543,  21  Pac.  416;  Denver  &  R. 
G.  R.  Co.  v.  Outcalf,  2  Colo.  App.  405,  31  Pac.  177;  Jensen  v.  Union  P.  R.  Co. 
6  Utah,  258,  4  L.  R.  A.  726,  21  Pac.  994,  — holding  act  making  railroac 
companv  liable  for  killing  animals  on  track  invalid;  Oregon  R.  &  Nav.  Co.  v. 
Smallev  1  \Yash.  211,  22  Am.  St.  Rep.  143,  23  Pac.  1008,  holding  act  mak- 


2  L.R.A.  813]  L.  R.  A.  CASES  AS  AUTHORITIES.  396 

ing  railroad  companies  liable  for  killing  animals  on  track,  unless  fence  main- 
tained, invalid;  McCauley  v.  Montana  C.  R.  Co.  11  Mont.  485,  28  Pac.  730, 
holding  railroad  company  which  took  co\v  injured  by  its  train,  killed,  and  sold 
it,  prima  facie  liable;  Catril  v.  Union  P.  R.  Co.  2  Idaho,  579,  21  Pac.  416.  holding 
an  act  making  railroad  company  absolutely  liable  for  the  killing  of  domestic 
animals,  unless  the  owners  thereof  were  negligent  is  void  as  not  providing  due 
"process  of  law." 

Cited  in  footnote  to  Wadsworth  v.  Union  P.  R.  Co.  23  L.  R.  A.  812,  which 
holds  unconstitutional  act  creating  absolute  liability  for  stock  killed  or  injured 
by  trains. 

Cited  in  notes  (5  L.  R.  A.  359)  on  due  process  of  law;  (25  L.  R.  A.  162) 
on  constitutionality  of  statutes  making  railroad  companies  absolutely  liable 
for  damage  by  fires  set  by  them,  or  stock  killed  by  them,  irrespective  of 
negligence;  (9  L.R.A. (N.S.)  360)  on  statute  imposing  duty  on  railroad  of  fencing 
right  of  way;  (62  Am.  St.  Rep.  170)  on  protection  of  corporations  from  special 
and  hostile  legislation. 

Distinguished  in  Sullivan  v.  Oregon  R.  &  Nav.  Co.  19  Or.  327,  24  Pac.  408, 
holding  act  making  railroad  company  liable  for  killing  animals  on  unfenced 
track  valid;  Central  R.  Co.  v.  Murphey,  116  Ga.  869,  60  L.  R.  A.  820,  43  S.  E. 
265,  sustaining  statute  making  initial  carriers  liable  for  lost  or  damaged  freight 
on  which  they  fail  to  report  within  thirty  days  after  application. 
Negligence. 

Cited  in  Hopkins  v.  Butte  &  M.  Commercial  Co.  13  Mont.  225,  40  Am. 
St.  Rep.  438,  33  Pac.  818,  holding  negligence  must  be  shown  in  actions  for 
submerging  land  by  log  jam. 

2  L.  R.  A.  816,  McCLINTOCK  v.  LOISSEAU,  31  W.  Va.  865,  8  S.  E.  612. 
When    trust   shown. 

Cited  in  Deck  v.  Tabler,  41  W.  Va.  335,  56  Am.  St.  Rep.  837,  23  S.  E. 
721,  holding  no  resulting  trust  in  favor  of  husband  by  conveyance  to  wife  of 
land  purchased  with  his  money;  Hoon  v.  Hoon,  126  Iowa,  393,  102  N.  W  105, 
holding  a  conveyance  to  a  son  paid  for  by  his  father  is  presumed  to  be  an  ad- 
vancement. 

Cited  in  footnote  to  Monahan  v.  Monahan,  70  L.R.A.  935,  which  holds  that 
equity  may  declare  trust  in  securities  purchased  in  name  of  son  for  purpose  of 
avoiding  taxation  taken  in  name  of  son  without  his  knowledge  where  he  after- 
wards surreptitiously  took  possession  of  and  refused  to  surrender  them. 

Cited  in  note    (12  L.  R.  A.  566)    on  doctrine  of  advancements  to  heirs. 
Evidence  to  show  resulting  trust. 

Cited  in  Lahey  v.  Broderick,  72  N.  H.  182,  55  Atl.  354,  holding  presumption 
of  gift  arising   from  deed  to  wife  of  land  paid  for  by   husband   rebuttable   by 
parol  evidence;  Re  Henderson,  142  Fed.  574,  on  the  establishment  of  trusts  by 
parol. 
Fraudulent   conveyance;    effect  between   parties. 

Cited  in  Edgell  v.  Smith,  50  W.  Va.  355,  40  S.  E.  402,  holding  deed  to  hinder 
creditors  void;  Urpman  v.  Lowther  Oil  Co.  53  W.  Va.  512,  97  Am.  St.  Rep. 
1027,  44  S.  E.  433,  holding  equity  will  not  decree  specific  performance  of 
agreement  made  to  defraud  creditors;  Jones  v.  Jones,  20  S.  D.  639,  ]08  X.  W.  23, 
holding  the  heirs  of  an  owner  of  land  who  executed  a  conveyance  for  the  pur- 
pose of  preventing  another  from  collecting  a  judgment  in  an  action  pending  could 
not  obtain  relief  against  such  conveyance;  Poling  v.  Williams,  55  W.  Va.  71, 
46  S.  E.  704,  holding  person  making  a  conveyance  of  land  for  the  purpose  of 


397  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  820 

hindering  creditors  would  not  be  entitled  to  relief  in  equity  against  such  con- 
veyance; Hudkins  v.  Grim,  64  W.  Va.  237,  61  S.  E.  166,  holding  a  party  to  a 
fraud  in  the  conveyance  of  land  could  not  enforce  a  trust  therein  for  his  benefit. 

Cited  in  note  (6  L.  R.  A.  458)  on  no  relief  in  law  or  equity  in  case  of 
fraudulent  contracts. 

Distinguished  in  Goldsmith  v.  Goldsmith,  46  W.  Va.  431,  33  S.  E.  266,  holding 
there  must  be  liability  chargeable  on  the  land  to  prevent  cancelation  of  a  deed 
alleged  to  have  been  given  in  fraud  of  creditors  for  grantee's  failure  to  keep 
agreement. 
Contracts  :itr:i  inst  public  policy. 

Cited  in  Phelan  v.  Wilson,  114  La.  822,  38  So.  570,  refusing  to  give  relief 
against  a  conveyance  of  realty  the  consideration  for  which  was  the  withdrawal 
of  a  criminal  prosecution. 

Cited  in  footnotes  to  Leonard  v.  Poole,  4  L.  R.  A.  728,  which  holds  one  en- 
gaging in  plot  to  raise  price  of  lard  cannot  be  aided  by  court  as  against  co- 
plotter;  Wassermann  v.  Sloss,  38  L.  R.  A.  176,  which  holds  illegality  of 
transfer  of  stock  to  president  for  corrupting  government  officials  does  not 
prevent  recovery  where  taken  by  president  for  own  use  instead. 

Cited  in  note    (6  L.  R.  A.  615)    on  contracts  against  public  policy  void. 
Enforcement  in  equity  of  contract  invalid  In  law. 

Cited  in  Henderson  v.  Henrie,  68  W.  Va.  565,  34  L.R.A.  (N.S.)  631,  71  S.  E. 
172,  Ann.  Oas.  1912  B,  318,  holding  that  equity  will  not  decree  specific  perform- 
ance of  verbal  contract  for  sale  of  realty. 

2  L.  R.  A.  820,  PENNSYLVANIA  R.  CO.  v.  MAcKINNEY,  124  Pa.  462,  10  Am. 

St.  Rep.  601,   17  Atl.   14. 
Carrier's  liability  to  passeng-er  Injured  by  missile. 

Cited  in  Fewings  v.  Mendenhall,  88  Minn.  342,  60  L.  R.  A.  604,  97  Am.  St. 
Rep.  519,  93  N.  W.  127,  denying  street  railroad's  liability  to  passenger 
injured  by  missile  thrown  into  car  by  strike  sympathizer;  Le  Deau  v.  Northern 
P.  R.  Co.  19  Idaho,  716,  34  L.R.A.(N.S.)  727,  115  Pac.  502,  holding  railroad  not 
liable  for  injury  to  passenger  from  boulder  rolling  down  mountain  side;  Bosworth 
v.  Union  R.  Co.  26  R.  I.  313,  58  Atl.  982,  3  A.  &  E.  Ann.  Cas.  1080,  holding  de- 
fendant company  not  liable  for  injury  to  passenger  by  a  stone  thrown  by  a  person 
in  a  crowd,  where  although  a  strike  existed  and  disorder  had  prevailed  at  the 
time  of  injury  there  had  been  no  intimation  of  danger. 

Cited   in  note    (3  L.R.A.(N.S.)    321)    on   liability   for   injury   to   passenger  by 
wrongful  act  of  stranger  directed  against  cars  or  passengers  therein. 
Presumption   of   negligence. 

Cited  in  Thomas  v.  Philadelphia  &  R.  R.  Co.  148  Pa.  182,  15  L.  R.  A.  417,  30 
W.  N.  C.  10,  23  Atl.  989,  holding  no  presumption  of  negligence  where  passen- 
ger is  injured  by  missile  in  unexplainable  manner;  Keller  v.  Hestonville,  M.  & 
F.  Pass.  R.  Co.  149  Pa.  68,  30  W.  N.  C.  417,  24  Atl.  159,  Affirming  1  Pa.  Dist. 
R.  198,  holding  mere  fact  that  passenger  was  injured  not  presumption  of  neg- 
ligence, so  as  to  shift  burden  of  proof;  Herstine  v.  Lehigh  Valley  R.  Co.  151 
Pa.  253,  31  W.  N.  C.  52,  25  Atl.  104,  holding  burden  of  proving  negligence 
is  on  passenger  injured  in  car  by  jolt  caused  by  coupling;  Fredericks  v. 
Northern  C.  R.  Co.  157  Pa.  124,  22  L.  R.  A.  312,  27  Atl.  689,  holding  carrier 
not  liable  for  wrongful  acts  of  strangers,  not  reasonably  preventable;  Bern 
hardt  v.  West  Pennsylvania  R.  Co.  159  Pa.  364,  28  Atl.  140  holding  negligence 
not  presumed  in  injury  to  passenger  by  stepping  on  small  piece  of  wood  on 
station  platform;  Benedick  v.  Potts,  88  Md.  56,  41  L.  R.  A.  480,  40  Atl.  1067, 
holding  mere  fact  that  passenger  fell  from  car  on  switchback  railway  not  suf- 


2  L.K.A.  820]  L.  R.  A.  CASES  AS  AUTHORITIES.  398 

ficient  evidence  of  negligence;  Whalen  v.  Consolidated  Traction  Co.  61  N.  J. 
L.  610,  41  L.  R.  A.  837,  68  Am.  St.  Rep.  723,  40  Atl.  645,  holding  nonsuit  im- 
proper where  passenger  was  knocked  off  car  and  injured  by  conductor  stumb- 
ling against  him;  Nelson  v.  Lehigh  Valley  R.  Co.  25  App.  Div.  545,  50  X.  Y. 
•Supp.  63,  holding  presumption  of  negligence  not  raised  by  tipping  of  passen- 
ger out  of  chair  in  rounding  curve,  others  keeping  their  seats;  Western  Mary- 
land R.  Co.  v.  State,  95  Md.  652,  53  Atl.  969,  holding  instruction  that  fact 
that  person  was  killed  while  a  passenger  is  prima  facie  evidence  of  carrier's 
negligence,  erroneous;  Denver  &  R.  G.  R.  Co.  v.  Fotheringham,  17  Colo.  App. 
416,  68  Pac.  978,  holding  fact  that  passenger  was  injured  by  swinging  shut 
of  car  door  not  prima  facie  evidence  of  carrier's  negligence;  Pittsburg,  C.  C.  & 
St  L.  R.  Co.  v.  Grom,  142  Ky.  58,  133  S.  W.  977,  holding  that  presumption  of 
negligence  arises  from  striking  of  passenger  by  something  attached  to  passing 
freight  train;  Woas  v.  St.  Louis  Transit  Co.  198  Mo.  674,  7  L.R.A.  (N.S.)  235,  96 
S.  W.  1017,  8  A.  &  E.  Ann.  Cas.  584,  holding  no  presumption  of  negligence  on 
part  of  street  railroad  company  arose  from  the  mere  fact  that  a  passenger  was 
injured  by  being  struck  by  a  missile  thrown  by  a  bystander;  Knuckey  v.  Butte 
Electric  R.  Co.  41  Mont.  324,  109  Pac.  979,  holding  that  fact  that  passenger  is 
injured  while  alighting  from  car  is  not  alone  sufficient  to  charge  railway  with 
liability;  Cline  v.  Pittsburg  R.  Co.  226  Pa.  591,  27  L.R.A.(X.S.)  938,  70  Atl.  850, 
holding  no  inference  arises  from  fact  of  injury  of  passenger  who  while  forced  to 
stand  next  to  guard  rail  of  crowded  street  car  was  thrown  off  by  a  lurch;  Stan- 
ford v.  Chester  Traction  Co.  11  Del.  Co.  Rep.  241,  holding  that  presumption  of 
negligence  does  not  arise  from  presence  of  banana  peel  in  car  aisle;  Barlick  v. 
Baltimore  &  0.  R.  Co.  41  Pa.  Super.  Ct.  91,  holding  that  no  presumption  of  negli- 
gence arises,  where  passenger  throws  bottle  out  of  window  and  pieces  of  bottle 
fly  back  and  hit  another  passenger;  Zercher  v.  Philadelphia  Rapid  Transit  Co. 
20  Pa.  Dist.  R.  18,  holding  negligence  inferable  from  fall  of  trolley  pole  striking 
person  waiting  for  car;  Ammon  v.  Conestoga  Traction  Co.  25  Lane.  L.  Rev.  98, 
holding  that  presumption  of  negligence  does  not  arise  from  passenger  cutting  his 
finger  on  broken  pane  in  raising  trolley-car  window;  Christensen  v.  Oregon  Short 
Line  R.  Co.  35  Utah,  144,  20  L.R.A.(N.S.)  257,  99  Pac.  676,  holding  the  mere  fact 
that  passenger  had  her  hand  crushed  by  the  sudden  closing  of  the  door  of  the 
ear  near  which  she  was  standing  awaiting  the  stopping  of  the  train  created  no 
presumption  of  negligence;  Allen  v.  Northern  P.  R.  Co.  35  Wash.  230,  66  L.R.A. 
808,  77  Pac  204,  holding  no  presumption  of  negligence  where  a  passenger  while 
attempting  to  board  the  train  after  it  had  started  to  move  was  thrown  off 
by  a  jerk  of  the  train  in  increasing  its  speed;  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
South  Fork  Coal  Co.  1  L.R.A.(N.S.)  538,  71  C.  C.  A.  316,  139  Fed.  534,  on  creation 
of  presumption  of  negligence  from  the  mere  happening  of  an  accident. 

Cited  in  notes  (15  L.R.A  38)  on  presumption  of  negligence  from  occurrence 
of  accidents;  (7  L.R.A. (N.S.)  231)  on  presumption  of  negligence  from  injury  to 
passenger  by  missile  from  outside;  (113  Am.  St.  Rep.  1021)  on  presumption  of 
negligence  from  happening  of  accident  causing  personal  injuries. 

Distinguished  in  Long  v.  Pennsylvania  R.  Co.  147  Pa.  347,  14  L.  R.  A. 
743,  29  W.  N.  C.  377,  30  Am.  St.  Rep.  732,  23  Atl.  459,  holding  no  presump- 
tion of  negligence  where  baggage  is  lost  through  unprecedented  flood;  Bueh- 
ler  v.  Union  Traction  Co.  200  Pa.  179,  49  Atl.  788,  holding  company  liable 
for  injury  to  passenger  from  falling  wall,  through  employee's  disregard  of  time- 
ly warning. 


399  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  825 

2  L.  R.  A.  823,  HUBBARD  v.  TENBROOK,  124  Pa.  291,  10  Am.  St.  Rep.  585, 

16   Atl.   817. 
Liability  of   principal   for  acts   of  agent. 

Cited  in  Wachter  v.  Phoenix  Assur.  Co.  132  Pa.  439,  19  Am.  St.  Rep.  600,  19 
Atl.  289,  holding  principal  bound  by  acts  or  conduct  of  agent  within  scope  of 
apparent  authority,  to  one  without  notice;  Romeo  v.  Martucci,  72  Conn.  516, 
47  L.  R.  A.  607,  77  Am.  St.  Rep.  327,  45  Atl.  199  (dissenting  opinion)' 
majority  holding  consignor  of  goods  may  assert  title  against  bona  fide  pur- 
chaser under  fraudulent  sale;  Lamb  v.  Thompson,  31  Neb.  453,  48  N.  W. 
58,  and  Steele  Smith  Grocery  Co.  v.  Potthast,  109  Iowa,  417,  80  N.  W.  517, 
holding  undisclosed  principal  liable  for  goods  sold  agent  in  latter's  name;  F.  A. 
Patrick  &  Co.  v.  Grand  Forks  Mercantile  Co.  13  N.  D.  17,  99  N.  W.  55,  holding 
an  undisclosed  principal  may  be  held  liable  for  goods  purchased  by  an  agent 
when  discovered;  Tres  Palacios  Rice  &  Irrig  Co.  v.  Eidman,  41  Tex.  Civ.  App. 
547,  93  S.  W.  698,  holding  defendant  company  was  not  liable  on  contract  made 
by  their  general  manager  for  the  irrigation  of  a  rice  field  where  they  had  refused 
to  enter  into  such  a  contract  the  plant  not  being  completed. 

Cited  in  footnote  to  Slater  Y.  Capital  Ins.  Co.  23  L.  R.  A.  181,  which  holds 
binding  on  company  waiver  of  proofs  of  loss  as  to  building  by  adjuster  sent  to 
adjust  loss  on  contents. 

Cited  in  notes  (2  L.  R.  A.  810,  811)  on  general  and  special  agents,  as  to 
liability  of  principal  for  acts  of  agent;  (2  L.  R.  A.  749)  on  nonliability  of 
principal  when  credit  is  given  exclusively  to  agent;  (10  L.  R.  A.  355)  on  prin- 
cipal bound  by  acts  of  agent;  (12  L.  R.  A.  346)  on  responsibility  of  agent  on 
his  contracts;  (14  Am.  St.  Rep.  154;  22  Am.  St.  Rep.  95)  on  liability  of  principal 
for  acts  of  agent;  (88  Am.  St.  Rep.  783)  on  liability  of  principal  for  unauthor- 
ized acts  of  agent. 

Distinguished  in  Brown  v.  German-American  Title  &  T.  Co.  174  Pa.  448, 
34  Atl.  335,  holding  assignment  of  building  contract  to  surety  does  not  con- 
stitute such  assignee  undisclosed  principal. 

2   L.  R.   A.   825,  Re  HOWE,   112  N.   Y.    100,   19  N.  E.   513. 
Succession   and    inheritance    taxes. 

Cited  in  Re  Sherwell,  11  N.  Y.  Supp.  897,  holding  under  inheritance  tax 
law  of  1887,  taxable  legacies  exempt  to  extent  of  $500;  Taylor's  Estate,  6 
Misc.  280,  27  N.  Y.  Supp.  232;  Re  Hall,  88  Hun,  70,  34  N.  Y.  Supp.  616;  Re 
Corbett,  171  N.  Y.  518,  64  N.  E.  209;  Re  Hoffman,  143  N.  Y.  330,  38  N.  E. 
311,  Modifying  76  Hun,  403,  27  N.  Y.  Supp.  1086,  —  holding  transfer  tax 
of  1892  is  imposed  upon  aggregate  of  property  descending  from  decedent; 
Re  Clark,  1  Connoly,  433,  5  N.  Y.  Supp.  199,  holding  tax  on  contingent  re- 
mainder under  act  of  1885  remains  suspended  until  estate  takes  effect;  State 
v.  Alston,  94  Tenn.  681,  28  L.  R.  A.  180,  30  S.  W.  750,  holding  inheritance  tax 
.one  on  the  privilege  of  receiving  by  inheritance  or  will;  Black  v.  State,  113 
U 'is.  212,  90  Am.  St.  Rep.  853,  89  N.  W.  522,  holding  unconstitutional  in- 
heritance tax  law  exempting  legacies  of  less  than  $10,000;  Booth  v.  Com  130  Ky. 
107,  33  L.R.A.(N.S.)  606,  113  S.  W.  61;  People  v.  Koenig,  37  Colo.  288,  85  Pac. 
1129,  31  A.  &  E.  Ann.  Cas.  140, — holding  an  exemption  in  an  inheritance  tax 
on  property  passing  by  will  applied  to  the  separate  distributive  shares  and  not 
to  the  aggregate  value  of  the  property  of  decedent. 

Cited  in  footnotes  to  People  v.  Sherwood,  3  L.  R.  A.  464,  which  holds  non- 
resident not  subject  to  succession  tax;  Re  Stewart,  14  L.  R.  A.  836,  which  au- 
thorizes succession  on  contingent  interests  under  power  of  appointment  after 


2  L.R.A.  825]  L.  R.  A.  CASES  AS  AUTHORITIES.  400 

vesting  of  same;  Re  Swift,  18  L.  R.  A.  709,  as  to  what  is  subject  to  succession 
tax. 

Cited  in  notes  (3  L.  R.  A.  372)  on  collateral  inheritance  tax;  (4  L.  R.  A. 
171)  on  exemption  from  general  taxation,  as  to  succession  or  inheritance  tax 
not  being  tax  on  property;  (10  L.  R.  A.  241)  on  collateral  inheritance  tax 
under  laws  of  Pennsylvania. 

Distinguished  in  Dixon  v.  Ricketts,  26  Utah,  222,  72  Pac.  947,  holding  col- 
lateral inheritance  tax  imposable  on  estate  exceeding,  though  each  legacy 
is  less  than,  amount  exempt;  Stellwagen  v.  Wayne  Probate  Judge,  130  Mich. 
169,  89  N.  W.  728,  holding  exemption  from  inheritance  tax  applies  to  entire 
estate,  and  not  to  each  share. 

Disapproved  in  Howell's  Estate,  147  Pa.  168,  23  Atl.  403,  Affirming  48 
Phila.  Leg.  Int.  296,  10  Pa.  Co.  Ct.  238,  28  W.  N.  C.  275,  holding  collateral  in- 
heritance tax  of  1887  to  be  ascertained  by  aggregate  of  decedent's  taxable  estate; 
McGhee  v.  State,  105  Iowa,  14,  74  N.  W.  695,  holding  collateral  inheritance  tax 
on  estates  in  excess  of  $1,000  applies  to  aggregate  of  decedent's  taxable  estate. 
Time  statutes  take  effect. 

Cited  in  Lane  v.  Kolb,  92  Ala.  661,  9  So.  873  (dissenting  opinion),  majority 
holding  statute  changing  appointive  to  elective  office,  providing  dates  of  elec- 
tion, did  not  take  effect  until  date  of  first  election  named;  State  v.  Williams, 
173  Ind.  417,  140  Am.  St.  Rep  261,  90  N.  E.  754,  21  Ann.  Cas.  986,  holding  that 
phrase  "after  the  passage  of  this  act"  in  local  option  law  is  used  in  technical 
sense  and  means  time  when  law  took  effect. 

Distinguished  in  People  ex  rel.  Onondaga  County  Sav.   Bank  v.   Butler,   147 
N.  Y.   176,  41  N.  E.  416,  holding  salary  act  taking  effect  on  certain  date  ap- 
plied to  official  taking  office  on  that  date. 
Statutory  construction. 

Cited   in   People  v.   England,   91   Hun,    156,   36  N.   Y.   Supp.   534,   holding  in- 
tent  of   legislature   governs   in   determining   effect   on   previous   offense   of   stat- 
ute  changing   punishment    for    crime. 
Constitutionality  of  succession  or  transfer  tax  statutes. 

Cited  in  State  v.  Alston,  94  Tenn.  681,  28  L.  R.  A.  180,  30  S.  W.  750,  holding 
inheritance  tax  constitutional. 

Cited  in  footnotes  to  State  v.  Hamlin,  25  L.  R.  A.  632,  which  holds  succes- 
sion tax  valid;  State  ex  rel.  Schwartz  v.  Ferris,  30  L.  R.  A.  218,  which  holda 
void,  for  lack  of  uniformity,  act  exempting  estates  less  than  $20,000  in  value ; 
Ferry  v.  Campbell,  50  L.  R.  A.  92,  which  holds  succession  tax  void  for  want 
of  notice  of  proceedings  to  fix  amount  of  tax;  Billings  v.  People,  59  L.  R.  A. 
807,  which  sustains  transfer  tax  on  lineal  descendants  to  whom  life  estate  given 
with  remainder  to  lineal  descendants,  but  exempting  lineal  descendants  tak- 
ing fee. 

Cited  in  notes  (12  L.R.A.  402,  407)  on  right  of  legislature  to  impose  succession 
and  collateral  inheritance  taxes;  (41  Am.  St.  Rep.  583)  on  constitutionality  of 
collateral  inheritance  tax  law. 

2  L.  R.  A.  828,  JOHNSTON  v.  WALU1S,   112  N.   Y.  230,  8  Am.  St.  Rep.  742 

19   N.   E.    653. 
Suits  by  or  against   foreign   executors,   etc. 

Cited  in  Flandrow  v.  Hammond,  13  App.  Div.  326,  43  N.  Y.  Supp.  143,  hold- 
ing suit  cannot  be  continued  against  foreign  executrix  appointed  pending  suit 
to  recover  money  paid  deceased  without  consideration;  Le  Fevre  v.  Matthews, 
39  App.  Div.  234.  57  N.  V.  Supp.  128,  holding  foreign  receiver  subject  to  ac- 
tion by  resident  on  agreement  with  former  in  official  capacity  within  state; 


401  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  829 

Lee  v.  Terbell,  40  Fed.  44,  holding  special  commissioners  appointed  by  for- 
eign court  to  sell  realty  may  maintain  action  on  purchase-money  bonds  taken  in 
official  capacity,  without  obtaining  ancillary  letters;  Hopper  v.  Hopper,  125 
N.  Y.  403,  12  L.  R.  A.  238,  26  N.  E.  457,  holding  foreign  executor'  sub- 
jects himself  to  suit  as  domestic  executor  by  taking  out  local  ancillary 
letters  of  administration;  Hentz  v.  Phillips,  23  Abb.  N.  C.  22 
6  N.  Y.  Supp.  16,  holding  foreign  administratrix  not  proper  party  to 
proceeding  by  creditors  of  decedent  to  reach  fund  derived  from  sale  of  realty 
in  jurisdiction;  Jefferson  v.  Beall,  117  Ala.  439,  67  Am.  St.  Rep.  177,  23  So.  44, 
holding  judgment  in  foreign  jurisdiction  against  local  administrator  in  rep- 
resentative capacity  void  and  unenforceable  in  local  courts;  De  Coppet  v.  Cone, 
199  N.  Y.  61,  139  Am.  St.  Rep.  844,  92  N.  E.  411,  20  Ann.  Cas  841,  holding  that 
ordinarily  action  at  law  will  not  lie  against  foreign  executor,  but  usually  suit 
in  equity  is  maintainable;  Hopper  v.  Hopper,  20  N.  Y.  Civ.  Proc.  Rep.  105,  holding 
a  foreign  executor  to  whom  ancillary  letters  have  been  issued  may  be  sued  here; 
McGrath  v.  Weiller,  98  App.  Div.  294,  90  X.  Y.  Supp.  420;  Courtney  v  Pradt,  87 
C.  C.  A.  463,  160  Fed.  568, — on  the  maintenance  of  actions  against  foreign  ad- 
ministrator and  executors. 

Cited  in  notes  (9  L.  R.  A.  218)  on  ancillary  administration  of  estates;  (9 
L.  R.  A.  245,  246)  on  power  and  authority  of  foreign  executors  and  adminis- 
trators; (27  L.  R.  A.  102)  on  general  rule  as  to  foreign  judgments  against  ex- 
ecutor or  administrator;  (35  L.R.A.(N.S.)  335)  on  right  to  sue  executor  or  ad- 
ministrator, on  his  bond,  in  state  other  than  of  appointment;  (45  Am.  St.  Rep. 
672)  on  suits  by  or  against  foreign  executors;  (2  Eng.  Rul  Cas.  91)  on  right  of 
foreign  executor  to  sue  on  judgment  in  another  state,  without  administration 
there. 
Agreements  in  bebalf  of  estate. 

Cited  in  Eames  v.  Bagg,  8  App.  Div.  545,  40  N.  Y.  Supp.  858,  holding  stipu- 
lation by  assignee  for  creditors,  in  action  on  promissory  note,  binding  upon 
estate;  Sanford  v.  Story,  15  Misc.  542,  38  N.  Y.  Supp.  104,  holding  executor's 
agreement  to  release  debt  may  be  specifically  enforced. 

Cited  in  note  (52  Am.  St.  Rep.  119)  on  liabilities  of  estate  of  decedents  on 
contracts  of  personal  representatives. 

2  L.  R.  A.  829,  DIEFFENBACH  v.  ROCH,  112  N.  Y.  621,  20  N.  E.  560. 
Limitation  of  justices'  judgment. 

Cited  in  Herrman  v.  Stalp,  15  Daly,  293,  6  N.  Y.  Supp.  514,  holding  exe- 
cution, as  well  as  action  on  docketed  judgment,  barred;  Warner  v.  Bartle,  22 
Misc.  490,  50  N.  Y.  Supp.  940,  holding  bar  of  Code  Civ.  Proc.  §  382,  applies  to 
''special  proceedings,"  as  well  as  to  "action"  to  enforce  judgment;  Re  Warner, 
39  App.  Div.  93,  56  N.  Y.  Supp.  585,  holding  special  proceeding  to  enforce 
docketed  judgment  of  justice  of  peace  barred  by  six  years'  limitation  to 
"action"  thereon;  Re  Depuy,  28  N.  Y.  S.  R.  42,  8  N.  Y.  Supp.  229,  holding  pro- 
ceeding in  surrogate's  court  to  enforce  judgment  barred  as  an  "action,"  within 
meaning  of  Code  Civ.  Proc.  §  382;  Re  Guttrotf,  39  Misc.  484,  80  N.  Y.  Supp.  219, 
holding  judgment  of  city  district  court,  docketed  in  county  clerk's  office,  barred 
in  six  years;  Pierce  v.  Davidson,  58  Mo.  App.  Ill,  holding  that  filing  of  jus- 
tice's judgment  in  office  of  court  of  record  does  not  increase  period  of  limita- 
tion; Gray  v.  Seeber,  53  Hun,  613,  6  N.  Y.  Supp.  802,  holding  Code  Civ.  Proc. 
§  376,  which  declares  presumption  of  payment  of  judgment  from  lapse  of  twenty 
years  to  be  statute  of  limitations;  Agar  v.  Tibbets,  56  Hun,  276,  9  N.  Y.  Supp. 
591,  holding  plaintiffs,  discontinuing  in  consequence  of  unexpected  decision, 
bound  to  pay  costs  to  date  of  application. 
L.R.A.  Au.  Vol.  I.— 26. 


2  L.R.A.  829]  L.  R.  A.  CASES  AS  AUTHORITIES.  402 

Cited  in  note  (8  L.  R.  A.  481)  on  application  of  statute  of  limitations  to 
equitable  actions. 

Cited  as  nullified  in  Andrews  v.  Mastin,  22  Misc.  265,  49  N.  Y.  Supp.  1118, 
holding  duration  of  lien  runs,  by  virtue  of  chap.  342,  Laws  1892,  from  date 
of  filing  transcript. 

Distinguished  in  Raphael  v.  Mencke,  28  App.  Div.  92,  50  N.  Y.  Supp. 
•920;  Agar  v.  Curtiss,  8  App.  Div.  339,  40  N.  Y.  Supp.  815;  Bolt  v.  Hauser,  57 
Hun,  568,  11  N.  Y.  Supp.  366;  Becker  v.  Porter,  17  App.  Div.  184;  Brown 
v.  Hyman,  27  N.  Y.  Supp.  437;  Townsend  v.  Tolhurst,  57  Hun,  42.  10  X.  Y. 
Supp.  378;  Anderson  v.  Porter,  7  Misc.  220,  27  N.  Y.  Supp.  646,  —  holding 
execution  may  issue  on  municipal  or  district  court  judgment  docketed  in 
clerk's  office,  though  action  thereon  barred;  Bolt  v.  Hauser,  10  X.  Y.  Supp. 
398,  holding  supplementary  proceedings  available  to  enforce  judgment  after 
expiration  of  six  years  within  which  action  thereon  allowed. 
Effect  of  docketing  judgment  in  clerk's  office. 

Cited  in  Re  Phelps,  6  Misc.  402,  1  Power,  545,  56  N.  Y.  S.  R.  629,  26  X.  Y. 
Supp.  774,  holding  only  effect  of  docketing  justice's  judgment  in  county  clerk's 
office  to  enlarge  scope  of  enforcement;  Daniels  v.  Southard,  23  Misc.  238.  51 
N.  Y.  Supp.  1136,  holding  sphere  of  enforcement  of  justice's  judgment  enlarged 
by  docketing  with  clerk,  to  include  all  processes  available  in  case  of  county- 
court  judgment;  Andrews  v.  Mastin,  22  Misc.  265,  49  N.  Y.  Supp.  1118,  holding 
no  additional  force  as  lien  on  realty  given  to  docketed  transcript  by  chap.  342, 
Laws  1892,  extending  period  of  duration :  Baldinger  v.  Turkowsky,  36  Misc.  822. 
74  N.  Y.  Supp.  897,  holding  docketing  of  district  court  judgment  in  clerk's  of- 
fice does  not  render  necessary  leave  to  sue  thereon  in  municipal  court;  Harris 
v.  Clark,  65  Hun,  363,  20  N.  Y.  Supp.  232,  holding  prohibition  of  Code  Civ. 
Proc.  §  1913,  against  action  on  judgment  rendered  in  court  of  record,  not 
applicable  to  judgment  of  justice,  though  docketed  in  clerk's  office;  Johnson 
v.  Manning,  75  App.  Div.  286,  78  N.  \.  Supp.  96,  holding  while  supreme  court 
has  not  power  to  vacate  municipal-court  judgment  docketed  with  county  clerk, 
it  may  set  aside  proceedings  to  enforce  same;  Erb  v.  Hendricks  Co.  50  W.  Va. 
32,  40  S.  E.  338,  raising,  without  deciding,  question  whether  justice  of  peace 
may  issue  execution  on  judgment  certified  to  clerk  of  circuit  court;  Phillips  v. 
Xorton,  18  S.  D.  539,  101  N.  W.  727,  on  the  effect  of  filing  and  docketing  of  a 
transcript  of  a  judgment  rendered  in  justice  court;  Holton  v.  Schmarback,  15 
N.  D.  42,  106  N.  W.  36,  on  the  effect  of  filing  of  transcript  of  justice  court  judg- 
ment to  district  court. 

Distinguished  in  Sill  Stove  Works  v.  Scott,  62  App.  Div.  571,  71  X.  Y.  Supp. 
181,  holding  jurisdiction   of  justice   prima  facie   established   by   proof  of   filing 
transcript   of   judgment   in   county   clerk's   office. 
Statutes  of  limitation. 

Cited  in  Cobb  v.  Houston,  117  Mo.  App.  653,  94  S  W.  299,  holding  a  statute 
providing  that  every  judgment  should  be  presumed  to  be  paid  after  twenty  years 
from  rendition  thereof,  was  not  one  of  limitation. 

Cited  in  note  (23  Am.  St.  Rep.  500)  on  running  of  limitations  against  judg- 
ment. 

2  L.  R.  A.  832,  HUXTER  v.  COOPERSTOWN  &  S.  VALLEY  R.  CO.  112  X.  Y. 

371,  8  Am.  St.  Rep.  752..  19  X.  E.  820. 

Subsequent  appeal  in  126  X.  Y.  24,  12  L.  R.  A.  430,  26  X.  E.  958. 
Contributory  negligence  on  or  about  moving  cars. 

Cited  in  Myers  v.  Xew  York  C.  &  H.  R.  R.  Co.  82  Hun,  38,  31  X.  Y.  Supp. 
153,  holding  party  attempting  to  board  moving  train  after  it  has  left  sta- 


403  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  832 

lion  guilty  of  contributory  negligence;  Walthers  v.  Chicago  &  N.  W.  R.  Co. 
72  111.  App.  363,  holding  it  negligence  per  se  for  party  to  attempt  to  board 
moving  train  at  point  beyond  platform;  Scully  v.  New  York,  L.  E.  &  W. 
R.  Co.  80  Hun,  199.  30  N.  Y.  Supp.  61,  holding  passenger  alighting  in  disre- 
gard of  conductor's  warning,  from  train  moving  6  to  10  miles  an  hour  after 
passing  station,  guilty  of  contributory  negligence;  Lewis  v.  Delaware  &  H. 
Canal  Co.  80  Hun,  195,  30  N.  Y.  Supp.  28,  holding  it  negligence  per  se  for 
passenger  to  alight  from  moving  train  on  wrong  side,  though  at  conductor's 
suggestion;  Worthington  v.  Central  Vermont  R.  Co.  64  Vt.  114,  15  L.  R.  A. 
328,  23  Atl.  590,  holding  negligence  per  se  to  stand  on  platform  of  rapidly 
moving  train  on  rough  road,  though  interior  of  car  crowded;  Redmond  v.  Rome, 
W.  &  O.  R.  Co.  31  N.  Y.  S.  R.  368,  10  N.  Y.  Supp.  330,  holding  conductor  stand- 
ing on  tracks  in  car  yard  watching  brakeman,  struck  by  backing  engine, 
guilty  of  contributory  negligence;  Salmon  v.  New  York  C.  &  H.  R.  R.  Co.  1 
Silv.  Sup.  Ct.  240,  5  N.  Y.  Supp.  225,  holding  pedestrian  crossing  tracks  in 
disregard  of  attendant's  warning,  and  lowered  gates,  guilty  of  contributory 
negligence;  Sias  v.  Rochester  R.  Co.  92  Hun,  148,  36  N.  Y.  Supp.  378,  holding 
it  not  negligence  per  se  to  ride  upon  platform  or  to  lean  out  beyond  side  of 
trolley  car;  Walker  v.  Vicksburg,  S.  &  P.  R.  Co.  41  La.  Ann.  806,  7  L.  R.  A. 
117,  17  Am.  St.  Rep.  417,  6  So.  916  (dissenting  opinion),  majority  holding  it 
contributory  negligence  to  alight  from  train  moving  from  station  before  giving 
time  for  passengers  to  alight;  Bertram  v.  Peoples  R.  Co.  154  Mo.  665,  52  S.  W. 
1119  (dissenting  opinion),  majority  holding  it  not  negligence  per  se  to  board 
slowly  moving  grip  car  near  pile  of  bricks;  Whitfield  v.  Atlantic  Coast  Line  R. 
Co.  147  X.  C.  239,  60  S.  E.  1126,  holding  a  brakeman  off  duty  and  riding  home, 
who  attempts  to  board  a  train  moving  at  the  rate  of  from  ten  to  fifteen  miles  an 
hour  and  is  injured,  is  guilty  of  contributory  negligence;  Jackson  v.  Greene.  134 
App.  Div.  918,  118  X.  Y.  Supp.  930,  holding  decedent  was  guilty  of  such  con- 
tributory negligence  in  attempting  to  get  out  of  an  elevator  where  it  stopped 
between  floors  when  if  he  had  remained  in  it,  it  would  have  been  repaired  in  a 
short  time  as  he  well  knew;  Salmon  v.  Xew  York  C.  &  H.  R.  Co.  1  Silv.  Sup.  Ct. 
240,  5  X.  Y.  Supp.  225,  on  contributory  negligence  as  a  defence;  Jackson  v. 
Greene,  201  X.  Y.  79,  93  N.  E.  1107,  holding  operator  of  elevator  negligent  in 
trying  to  crawl  out  of  elevator  stopped  between  two  floors 

Cited  in  footnote  to  Western  Maryland  R.  Co.  v.  Herold,  14  L.  R.  A.  75, 
which  holds  entering  of  car  with  brakes  set  before  time  for  starting  not 
negligence  per  se. 

Cited  in  notes  (8  L.  R.  A.  674)  on  contributory  negligence  of  passenger;  (11 
L.  R.  A.  396)  on  passenger's  negligence  in  alighting  from  moving  train;  (21 
L.R.A.  356)  on  injuries  in  boarding  moving  train;  (10  Am.  St.  Rep.  883)  on 
what  constitutes  contributory  negligence;  (17  Am.  St.  Rep.  425)  on  contributory 
negligence  in  alighting  from  moving  train. 

Distinguished  in  Lewis  v.  Delaware  &  H.  Canal  Co.  145  X.  Y.  516,  40  N.  K. 
248,  holding  it  not  contributory  negligence,  as  matter  >of  law,  to  alight  from 
slowly  moving  train  at  request  of  conductor;  Distler  v.  Long  Island  R.  Co. 
151  X.  Y.  427°  35  L.  R.  A.  764,  765,  45  N.  E.  937,  holding  it  not  negligence  per  se 
to  board  train  moving  at  rate  of  2  or  3  miles  an  hour  at  invitation  of  conductor; 
Weiler  v.  Manhattan  R.  Co.  53  Hun,  377,  6  N.  Y.  Supp.  320,  holding  it  not 
negligence  per  se  to  alight,  at  conductor's  invitation,  from  blocked  elevated  train 
at  short  distance  from  station,  and  proceed  along  narrow  walk  to  reach  stairway ; 
Van  Fleet  v.  Xew  York  C.  &  H.  R.  R.  Co.  27  N.  Y.  S.  R.  67,  7  N.  Y.  Supp.  630, 
holding  it  not  negligence  per  se  for  track  hand  to  board  slowly  moving  train 
under  order  of  foreman  to  "hurry  up;"  Reid  v.  New  York,  68  Hun,  112,  22 


2  L.R.A.  832]  L.  R.  A.  CASES  AS  AUTHORITIES.  404 

N.  Y.  Supp.  623,  holding  it  not  negligence  per  se  for  passenger  of  cable  car  to 
get  off  in  response  to  conductor's  warning  to  "hurry  up  or  he  would  start;" 
Northern  P.  R.  Co.  v.  Egeland,  163  U.  S.  99,  41  L.  ed.  86,  16  Sup.  Ct.  Rep. 
975,  Affirming  5  C.  C.  A.  473,  12  U.  S.  App.  271,  56  Fed.  202,  holding  it  not 
negligence  per  se  for  track  laborer  to  jump,  in  compliance  with  conductor's 
orders,  from  train  moving  4  miles  an  hour. 

Disapproved  in  Murphy  v.   St.   Louis,   1.   M.  &  S.  R.   Co.   43   Mo.   App.   349, 
holding   it   not   negligence   per  se   to   board   slowly   moving   train   at   invitation 
of    conductor. 
Evidence  as  to  speed  of  trains. 

Cited  in  note  (34  L.R.A.(N.S.)  795)  on  evidence  as  to  speed  of  trains  and 
hand  cars. 

2   L.  R.   A.   836,  EAST  BIRMINGHAM   LAND   CO.   v.   DENNIS,   85   Ala.   565, 

7  Am.  St.  Rep.  73,  5  So.  317. 
T'saiit-  contrary  to  legal  right. 

Cited  in  Davis  v.  State,  92  Ala.  26,  9  So.  616,  holding  custom  of  parties 
to  enter  neighbor's  house  uninvited  not  admissible  in  evidence  to  justify  tres- 
pass against  express  orders  to  keep  out;  Becker  v.  Hall,  116  Iowa,  593,  56 
L.  R.  A.  575,  88  N.  W.  324,  holding  unreasonable  custom  as  to  appropriation  of 
ice  in  public  waters  not  sustained;  Pennsylvania  R.  Co.  v.  Naive,  112  Tenn.  258, 
64  L.R.A.  448,  79  S.  W.  124,  holding  custom  to  suspend  business  on  4th  of 
July  excuses  carrier  from  immediately  notifying  consignee  of  arrival  of  per- 
ishable goods;  Pennsylvania  R.  Co.  v.  Naive,  112  Tenn.  258,  64  L.R.A.  448,  79  S. 
W.  124,  on  the  admissibility  of  evidence  of  custom  or  usage. 

Cited  in  notes  (10  L.  R.  A.  785)  on  validity  of  usage;  (3  L.  R.  A.  860) 
on  binding  force  of  usage  and  custom;  (10  L.  R.  A.  366)  on  custom  and  usage 
on  question  of  negligence;  (13  L.  R.  A.  438,  439)  on  usage  and  custom  in  con- 
flict with  rules  of  law;  (8  Eng.  Rul.  Cas.  336)  on  necessity  that  custom  be  limited, 
certain,  reasonable,  and  of  lawful  origin. 
Fraudulent  transfer  of  stock. 

Cited  in  Farmers'  Bank  v.  Diebold  Safe  &  Lock  Co.  66  Ohio  St.  377,  58  L. 
R.  A.  624,  90  Am.  St.  Rep.  586,  64  N.  E.  518,  holding  owner  of  stock  assigned  in 
blank  by  original  holder  entitled  thereto  as  against  bona  fide  pledgee  for  value 
from  one  fraudulently  obtaining  possession  of  same  without  assignee's  negli- 
gence; National  Safe  Deposit,  Sav.  &  T.  Co.  v.  Hibbs,  32  App.  D.  C.  470,  on 
bona  fide  purchaser  of  regularly  endorsed  certificates  of  stock  which  have  been 
stolen  as  acquiring  no  title. 

Cited  in  note  (19  L.R.A.(NS.)  Ill)  on  rights  of  owner  of  negotiable  paper, 
payable  to  bearer,  or  indorsed  in  blank,  as  against  bona  fide  purchaser  from  one 
unlawfully  in  possession. 

Distinguished  in  Winter  v.  Montgomery  Gaslight  Co.  89  Ala.  550,  7  So.  773, 
holding  purchase  in  good  faith  for  value  of  stock  sold  in  breach  of  trust, 
not  apparent  from  face  of  certificate,  good  as  against  beneficiary,  though 
transfer  not  registered;  Nelson  v.  Owen,  113  Ala.  380,  21  So.  75,  holding  pur- 
chaser for  value  without  notice  from  pledgee,  of  stock  indorsed  in  blank  by 
pledgeor,  owner  thereof  as  against  pledgeor. 

2  L.  R.  A.  839,  ST.  LOUIS,  A.  &  T.  R.  CO.  v.  WELCH,  72  Tex.  298,  10  S.  W. 

529. 
Who  are  fellow  servants. 

Cited  in  Texas  &  P.  R.  Co.  v.  Rogers,  6  C.  C.  A.  406,  13  U.  S.  App.  547,  57 
Fed.  381,  holding  laborer  acting  as  temporary  foreman  fellow  servant  with 


405  L-  R-  A.  CASES  AS  AUTHORITIES.  [2  L.R.A    »:;<> 

laborer  in  gang;  Ell  v.  Northern  P.  R.  Co.  1  N.  D.  349,  12  L  R  A  101  26 
Am.  St.  Rep.  621,  48  N.  W.  222,  holding  train  hand  and  foreman  fellow  aery 
ants;  St.  Louis,  S.  W.  R.  Co.  v.  Henson,  61  Ark.  307,  32  S.  W.  1079,  holding 
foreman  of  bridge-building  gang  and  engineer,  fellow  servants;  Austin  &  X  \\ 
R.  Co.  v.  Beatty,  6  Tex.  Civ.  App.  652,  24  S.  W.  934,  holding  brakeman  and 
man  employed  to  nail  numbers  on  bridges  fellow  servants;  Galveston,  H  &  S 
A.  R.  Co.  v.  Farmer,  73  Tex.  87,  11  S.  W.  156,  holding  brakeman  and  station 
agent  fellow  servants;  Grattis  v.  Kansas  City,  P.  &  G.  R.  Co.  153  Mo  406 
48  L.  R.  A.  408,  77  Am.  St.  Rep.  721,  55  S.  W.  108,  holding  fireman,  conductor! 
and  engineer  fellow  servants;  Wells,  Fargo  &  Co.  v.  Page,  29  Tex.  Civ.  App. 
490,  68  S.  W.  528,  holding  express  messenger  and  guard  fellow  servants; 
Direct  Nav.  Co.  v.  Anderson,  29  Tex.  Civ.  App.  67,  69  S.  W.  174,  holding  deck 
hands  on  tugboat,  serving  in  different  watches,  fellow  servants;  International 
&  G.  N.  R.  Co.  v.  Ryan,  82  Tex.  570,  18  S.  W.  219,  holding  carpenter  at  rest 
in  caboose  after  working  hours,  fellow  servant  with  switchman;  Dishon  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  126  Fed.  200,  holding  section  hand,  living 
in  section  house,  leaving  it  after  working  hours,  a  fellow  servant  of  train 
operatives  by  whose  negligence  he  was  injured;  Oriental  Investment  Co.  v. 
Sline,.  17  Tex.  Civ.  App.  695,  41  S.  W.  130,  holding  chambermaid  and  elevator 
man  fellow  servants  in  hotel  where  both  employed;  Consumers'  Cotton  Oil  Co. 
v.  Jonte,  36  Tex.  Civ.  App.  24,  80  S.  W.  847,  holding  plaintiff  employed  in  a  cotton 
gin  as  a  mill  wright  was  a  fellow  servant  with  one  employed  to  throw  bales  of 
cotton  from  an  upper  story;  Missouri,  K.  &  T.  R.  Co.  v.  Hollan,  49  Tex.  Civ.  App. 
61,  107  S.  W  642,  as  an  authority  as  to  employees  of  common  master  may  be  said 
to  be  fellow  servants. 

Cited  in  notes  (5  L.  R.  A.  735)  on  who  are  fellow  servants;  (18  L.  R.  A. 
796)  on  what  constitutes  "common  employment;"  (50  L.  R.  A.  426)  on 
diversity  of  duty  as  affecting  common  employment;  (50  L.  R.  A.  428)  on  con- 
tiguity as  factor  in  common  employment;  (18  L.  R.  A.  797)  on  servants  not  on 
duty  as  fellow  servants;  (50  L.  R.  A.  462)  on  control  by  master  as  factor 
in  determination  of  relation  of  master  and  servant;  (50  L.  R.  A.  433)  on  il- 
lustrations of  common  employment;  (23  Am.  St.  Rep.  165)  on  master's  liability 
for  negligence  of  fellow  servants. 

Distinguished  in  International  &  G.  N.  R.  Co.  v.  Still,  40  Tex.  Civ.  App.  25,  88 
S.  W.  257,  holding  by  reason  of  statute  where  a  bridge  gang  was  divided  into 
two  squads  in  the  repairing  of  cotton  platform  and  a  member  of  one  squad  was 
injured  through  the  negligence  of  a  member  of  the  other,  such  persons  were  not 
fellow  servants. 
When  employee  Is  on  duty. 

Cited  in  St.  Clair  v.  St.  Louis  &  S  F.  R.  Co.  122  Mo.  App.  526,  99  S.  W.  775, 
holding  a  foreman  required  to  assist  in  clearing  away  wrecks  was  while  on  his 
•way  to  head  quarters  after  the  performance  of  such  a  task  still  on  duty  and 
retained  his  relationship  as  defendant's  servant;  Moyse  v.  Northern  P.  R.  Co.  41 
Mont.  284,  108  Pac.  1062,  holding  railroad  liable  for  injury  to  freight  conductor 
sleeping  in  caboose  on  sidetrack,  subject  to  be  called  on  duty;  Missouri,  K.  &  T. 
R.  Co.  v.  Hendricks,  49  Tex.  Civ.  App.  323,  108  S.  W.  745,  holding  plaintiff  a  brake- 
man employed  by  the  day  who  upon  going  to  work  and  finds  his  train  gone  and 
that  his  services  were  not  required  for  the  day,  was  not  on  duty  when  injured  by 
a  train  while  walking  on  the  track;  Missouri,  K.  &  T.  R.  Co.  v.  Pennewell,  50 
Tex.  Civ.  App.  542,  110  S.  W.  758,  holding  the  fact  that  a  switchman  standing 
by  track  and  not  just  then  engaged  in  switching,  seeing  a  forward  signal  steps 
on  track  and  is  injured  by  the  train  moving  backward  did  not  by  his  act  sever 
his  relationship  as  a  servant;  Harvey  v.  Texas  &  P.  R.  Co.  92  C.  C.  A.  237,  166 


2  L.R.A.  839]  L.  R.  A.  CASES  AS  AUTHORITIES.  406 

Fed.  398,  holding  an  engine  hostler  who  was  injured  while  sitting  in  the  window 
of  an  engine  cab  while  on  way  to  help  coal  the  engine  was  at  the  time  in  the 
course  of  his  employment. 

Cited  in  note  (12  L.R.A.(N.S.)  855)  on  existence  of  relationship  where  servant 
goes  on  master's  premises  at  other  than  hours  of  actual  labor 
Liability  of  master  for  injury  to  servant. 

Cited  in  Houston,  E.  &  W.  T.  R.  Co.  v.  McHale,  47  Tex.  Civ.  App.  366,  105  S. 
W.  1149,  holding  defendant  company  was  liable  for  the  death  of  a  foreman  of  a 
switching  crew  where  while  awaiting  the  passing  of  a  train  a  door  of  a  car  felf 
on  him,  defendant  having  knowledge  of  defective  condition  of  car;  Texas  &  P. 
R.  Co.  v.  Johnson,  48  Tex.  Civ.  App.  143,  106  S.  W.  773,  holding  defendant  railroad 
company  were  liable  for  the  death  of  an  engineer  because  of  the  defective  con- 
dition of  a  round  house  although  at  time  of  accident  he  was  not  engaged  in  the 
performance  of  his  duties  but  being  in  a  position  and  ready  to  do  so 

2  L.  R.  A.  841,  MERRILL  LODGE,  NO.  299,  I.  O.  G.  T.  v.  ELLSWORTH,  78 

Cal.    166,   20   Pac.   399. 
Mutual  benefit  association. 

Cited  in  notes  (7  L.  R.  A.  189)  on  transfer  of  mutual  benefit  certificate;  (4 
L.  R.  A.  382)  on  benefit  association,  enlarged  powers  conferred  by  statute. 
Rights  of  local  lodges. 

Cited  in  Grand  Lodge,  A.  O.  U.  W.  v.  Grand  Lodge,  C.  81  Conn.  209,  70  Atl.  61 7r 
holding  on  the  division  of  a  lodge  by  the  order  of  the  grand  lodge  equity  wil} 
accord  to  the  separated  members  an  accounting  for  the  funds  and  property  in/ 
the  hands  of  the  others. 

2  L.  R.  A.  843,  FLUKER  v.  GEORGIA  R.  &  BKG.  CO.  81  Ga.  461,  12  Am.  St. 

Rep.  328,  8  S.  E.  529. 
Dominion   of  railroad  company   over  its  property. 

Cited  in  Kates  v.  Atlanta  Baggage  &  Cab  Co.  107  Ga.  646,  46  L.  R.  A.  435. 
34  S.  E.  372,  holding  railroad  company  may  grant  exclusive  privilege  of  en- 
tering depot  for  purpose  of  handling  baggage  on  claim  checks;  Brown  v. 
New  York  C.  &  H.  R.  R.  Co.  75  Hun,  362,  27  N.  Y.  Supp.  69,  holding  railroad 
company  may  grant  exclusive  privilege  to  cab  company  of  soliciting  patronage 
on  trains  and  in  yards  of  railroad;  Hart  v.  Atlanta  Terminal  Co.  128  Ga.  763, 
58  S.  E.  452;  Atlanta  Terminal  Co.  v.  American  Baggage  &  Transfer  Co.  125 
Ga.  688,  54  S.  E.  711, — holding  terminal  company  might  grant  one  of  competing 
baggage  companies  the  right  to  space  for  a  check  room  in  station  and  exclude  an- 
other company  from  such  privilege;  Lewis  v.  Weatherford,  M.  W.  &  X.  R.  Co. 
36  Tex.  Civ.  App.  51,  81  S.  W.  Ill,  holding  a  carrier  might  make  a  regulation 
giving  one  individual  the  exclusive  right  to  solicit  on  its  trains  the  transfer 
business  of  its  passengers;  Ft.  Worth  &  D.  City  R.  Co.  v.  State.  99  Tex.  44,  70 
L.R.A.  957,  87  S.  W.  336,  holding  a  railroad  company  might  grant  to  a  sleeping 
car  company  the  exclusive  right  for  a  stipulated  time  of  furnishing  sleeping  cars 
for  use  on  its  lines;  Oregon  Short  Line  R.  Co.  v.  Davidson,  33  Utah,  376,  16 
L.RA.(N.S.)  783,  94  Pac.  10,  14  A.  &  E.  Ann.  Gas.  489,  holding  railroad  company 
might  grant  to  a  particular  hackman  the  exclusive  right  of  soliciting  business  on 
the  station  grounds. 

Cited  in  note  (66  L.R.A.  587)  on  right  of  railroad  to  keep  trespassers  from 
track  or  right  of  way. 

Distinguished  in  State  v.  Reed,  76  Miss.  222,  43  L.  R.  A.  136,  71  Am.  St. 
Rep.  528,  24  So.  308,  holding  grant  by  railroad  company  to  hackman  of  ex- 
clusive privilege  of  entering  depot  grounds  to  solicit  patronage  unlawful ;  Mem- 


407  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  844 

phis  Xews  Pub.  Co.  v.  Southern  R.  Co.  110  Tenn.  706,  63  L.R.A.  155,  75  S.  W. 
941,  denying  right  of  railroad  company  to  exclude  others  from  use  of  newspaper 
train  established  upon  certain  publisher's  guarantee  of  minimum  revenue;  Mem- 
phis News  Pub.  Co.  v.  Southern  R.  Co.  110  Tenn.  706,  63  L.R.A.  155,  75  S.  W. 
941,  holding  a  railroad  company  entering  into  a  contract  with  newspaper  to  run 
a  special  train  carrying  only  the  newspaper  of  such  company  cannot  refuse  to 
carry  the  paper  of  a  rival  company  who  is  willing  to  agree  to  all  the  terms 
made  with  the  other  company. 
Over  depot  grounds. 

Cited  in  Cosgrove  v.  Augusta,  103  Ga.  839,  840,  42  L.  R.  A.  714,  68  Am.  St. 
Rep.  149,  31  S.  E.  445,  holding  city  ordinance  prohibiting  drummers  and  cab- 
men from  entering  union  passage  depot  to  solicit  custom  invalid;  Godbout  v. 
St.  Paul  Union  Depot  Co.  79  Minn.  198,  47  L.  R.  A.  536,  81  N.  W.  835,  holding 
railroad  company  may  prohibit  hackman  from  soliciting  patronage  within 
depot  building;  Lucas  v.  Herbert,  148  Ind.  66,  37  L.  R.  A.  377,  47  N.  E.  146j 
holding  railroad  company  may  designate  places  cabs  and  omnibuses  shall  oc- 
cupy on  depot  grounds;  Donovan  v.  Pennsylvania  Co.  61  L.  R.  A.  143,  57  C. 
C.  A.  364,  120  Fed.  217,  and  New  York,  N.  H.  &  H.  R.  Co.  v.  Bork,  23  R.  I. 
224.  49  Atl.  965,  holding  railroad  company  may  exclude  from  station  all  hack- 
men  soliciting  passengers  without  its  license;  Hedding  v.  Gallagher,  72  N.  H. 
394,  64  L.  R.  A.  821,  57  Atl.  225,  holding  railroad  company  may  grant  to 
teamster  exclusive  right  to  solicit  baggage  in  depot. 

Cited  in  notes  (8  L.R.A  754)  on  dominion  of  railroad  company  over  its  stations 
and  grounds;    (16  L.R.A.(N.S.)    778)   on  right  to  discriminate  between  solicitors 
of  patronage  at  depots,  wharves,  etc.;    (22  Am.  St.  Rep.  702)  on  discrimination 
by  carrier  between  hackmen  or  other  solicitors. 
Prohibition  against  use  of  elevator. 

Cited  in  Springer  v.  Byram,  137  Ind.  27,  23  L.  R.  A.  250,  45  Am.  St.  Rep. 
159.  36  X.  E.  361,  holding  proprietor  of  elevator  not  bound  to  carry  newsboy, 
although    permitted   to   enter   building. 
Revocability  of  license. 

Cited  in  note  (16  Eng.  Rul.  Cas.  76)  on  revocability  of  license. 
Relationship  of  master  and  servant. 

Cited  in  note  (22  Am.  St.  Rep.  462)  as  to  when  relation  of  master  and  serv- 
ant exists. 

2  L.  R.  A.  844.  RITTLER  v.  SMITH,  70  Md.  261,  16  Atl.  890. 
Insurance;    insuruble  Interest. 

Cited  in  Peoria  Life  Asso  v.  Hines,  132  111.  App.  647,  on  creditor  as  having 
an  insurable  interest  in  debtor's  life. 

Cited  in  footnotes  to  Adams  v.  Reed,  35  L.  R.  A.  692,  which  holds  that  woman 
has  insurable  interest  in  life  of  son-in-law;  Kurd  v.  Doty,  21  L.  R.  A.  746, 
which  denies  right  of  trustee  receiving  proceeds  of  insurance  policy  to  re- 
fuse payment  to  beneficiaries  as  having  no  insurable  interest;  Exchange  Bank 
v.  Loh,  44  L.  R.  A.  372,  which  holds  creditor's  insurable  interest  limited 
to  amount  of  indebtedness. 

Cited  in  notes  (6  L.  R.  A.  136,  7  L.  R.  A.  219)  on  who  has  insurable  in- 
terest in  life  of  another;  (13  L.  R.  A.  433,  434)  on  insurable  interest  essen- 
tial to  validity  of  policy;  (128  Am.  St.  Rep.  313.  315)  on  life  insurance  in  favor 
of  persons  haVing  no  insurable  interest;  (13  Eng.  Rul.  Cas.  400)  on  insurable 
interest  in  life. 
Nature  of  contract  for  life  Insurance. 

Cited   in   Cahill   v.   Maryland   L.   Ins.   Co.   90   Md.   347,   47   L.   R.   A.   617,   45 


2  L.R.A.  844]  L.  R.  A.  CASES  AS  AUTHORITIES.  408 

Atl.    180,   holding  contract  for   life  annuity  is  mere  chose  in   action   for   pay- 
ment  of   money. 
Endowment   policy  as   asset. 

Cited   in   Re   Slingluff,    106    Fed.    156,    holding   policy   payable   to   insured    if 
he  survives  term,  and  which  in  terms  is  assignable,  passes  to  trustee  in  bank- 
ruptcy. 
Assignment  of  life-insurance  policy. 

Cited  in  Preston  v.  Connecticut  Mut.  L.  Ins.  Co.  95  Md.  114,  51  Atl.  838;  Nye 
v.  Grand  Lodge,  A.  O.  U.  W.  9  Ind.  App.  146,  36  N.  E.  429;  Steinback  v. 
Diepenbrock,  158  N.  Y.  30,  44  L.  R.  A.  419,  70  Am.  St.  Rep.  424,  52  N.  E.  662; 
Souder  v.  Home  Friendly  Soc.  72  Md.  516,  20  Atl.  137,  —  holding  assignment 
to  one  without  insurable  interest  valid  when  policy  taken  out  by  insured  or  by 
one  having  insurable  interest;  Clement  v.  New  York  L.  Ins.  Co.  101  Tenn.  36, 
42  L.  R.  A.  251,  70  Am.  St.  Rep.  650,  46  S.  W.  561,  holding  assignment  must 
be  in  good  faith,  and  not  as  colorable  evasion  of  wagering  contract;  Clogg 
v.  McDaniel,  89  Md.  422,  43  Atl.  795,  holding  assignment  to  creditor  of  cer- 
tificate in  benefit  association  not  wager,  although  debt  canceled  thereby;  Hew- 
lett v.  Home  for  Incurables,  74  Md.  354,  17  L.  R.  A.  448,  24  Atl.  324,  hold- 
ing assignment  in  consideration  of  advances  in  money  and  hospital  treatment 
to  beneficiary  valid;  Farmers  &  T.  Bank  v.  Johnson,  118  Iowa,  286.  91  X.  W. 
1074,  sustaining  assignment  of  insurance  policy  to  beneficiary's  creditor,  with- 
out insurable  interest  in  life  of  insured;  Mechanics'  Nat.  Bank  v.  CominSj  72 
M.  H.  19,  55  Atl.  191,  sustaining  assignment  of  life-insurance  policy  to  se- 
cure corporation's  creditor  without  insurable  interest  in  insured's  life;  Brett 
v.  Warnick,  44  Or.  523,  102  Am.  St.  Rep.  639,  75  Pac.  1061;  Rylander  v.  Allen, 
125  Ga.  215,  6  L.R.A.(N.S.)  135,  53  S.  E.  10^2,  5  A.  &  E.  Ann.  Gas.  355,— on  the 
assignability  of  life  insurance  policies;  Fitzgerald  v.  Rawlings,  114  Md.  475,  79 
Atl.  915,  Ann.  Cas.  1912  A,  650,  holding  valid,  assignment  of  policy  by  debtor  to 
creditor,  stating  that  it  was  not  made  as  collateral,  but  to  divest  assignor  of 
all  interest  therein;  Rahders  v.  People's  Bank,  113  Minn.  499,  130  N.  W.  16,  Ann. 
Cas.  1912  A,  299,  holding  that  policy  on  partner  may  be  assigned  by  firm  to 
corporation  succeeding  to  its  business;  Gordon  v.  Ware  Nat.  Bank,  67  L.R.A  554, 
65  C.  C.  A.  580,  132  Fed.  447,  on  an  insurable  interest  as  not  necessary  to  the 
validity  of  an  assignment  of  a  life  insurance  policy. 

Cited  in  footnotes  to  Steinback  v.  Diepenbrock,  44  L.  R.  A.  417,  and  Cham- 
berlain v.  Butler,  54  L.  R.  A.  338,  which  sustain  right  to  assign  policy  to  one 
without  insurable  interest;  Mutual  Reserve  Fund  Life  Asso.  v.  Hurst,  20  L.  R. 
A.  761,  which  holds  assignee's  insurable  interest  as  creditor  not  condition  to 
recovery  on  policy;  Steele  v.  Catlin,  59  L.  R.  A.  129,  which  holds  complete  gift 
not  made  by  verbal  assignment  of  life  policy  accompanied  with  words  indi- 
cating intent  to  give,  and  delivery  of  policy;  Opitz  v.  Karel,  62  L.  R.  A.  982, 
which  holds  valid  gift  of  proceeds  of  policy  payable  to  insured's  personal  rep- 
resentative made  by  delivery  of  policy;  American  Mut.  L.  Ins.  Co.  v.  Bertram. 
64  L.  R.  A.  935,  holding  bona  fide  assignee  of  life  insurance  policy  taken  by 
one  without  insurable  interest  may  recover  premiums;  American  Mut.  L.  Ins.  Co. 
v.  Bertram,  64  L.R.A.  935,  which  sustains  right  of  assignee  to  recover  back  pre- 
miums paid,  where  the  policy,  without  his  knowledge,  was  void  because  of  lack 
of  insurable  interest  in  the  one  taking  it  out;  Hinton  v.  Mutual  Reserve  Fund  L. 
Asso.  65  LR.A.  161,  which  holds  insurance  company  not  liable  on  policy  issued 
to  wife  of  mortgagor  and  assigned  by  her  to  mortgagee  as  security  for  the  debt. 

Cited  in  notes  (9  L.R.A.  660)  on  assignability  of  life  policies;  (3  L.R.A.(N.S.) 
937)  on  validity  of  assignment  of  interest  in  life  insurance  to  one  paying  pre- 


409  L-  R-  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  84* 

miums;    (6  L.R.A.(X.S.)    129)   on  validity  of  assignment  not  made  as  cover  for 
wager  policy  of  life  insurance  to  one  having  no  insurable  interest. 
Amount  to  vrhich  assignee  of  policy  entitled. 

Cited  in  Hays  v.  Lapeyre,  48  La.  Ann.  758,  35  L.  R.  A.  654,  19  So.  821  (dis- 
senting opinion),  majority  holding  assignee  not  entitled  to  take  more  than 
amount  invested. 

Cited  in  footnotes  to  Morris  v.  Georgia  Loan,  Sav.  &  Bkg.  Co.  46  L.  R.  A. 
506,  which  holds  creditor  taking  assignment  of  policy  entitled  to  retain  from  pro- 
ceeds sufficient  to  pay  debt  and  advances  only;  McQuillan  v.  Mutual  Reserve 
Fund  Life  Asso.  56  L.  R.  A.  233,  which  upholds  provision  that  assigned  pol- 
icy shall  be  void  as  to  all  above  debt  due  assignee. 

Disapproved  in  Exchange  Bank  v.  Loh,  104  Ga.  453,  44  L.  R.  A.  376,  31  S. 
E.  459,  and  Cheeves  v.  Anders,  87  Tex.  293,  47  Am.  St.  Rep.  107,  28  S.  W.  274, 
holding  creditor,  as  assignee,  may  recover  only  amount  of  debt  and  interest,  and 
amount  paid  to  keep  policy  alive,  with  interest. 

2  L.  R.  A.  847,  McCROY  v.  TONEY,  66  Miss.  233,  5  So.  392. 
Parol  lease  for  one  year. 

Cited  in  Higgins  v.  Gager,  65  Ark.  607,  47  S.  W.  848,  holding  parol  lease 
for  a  year,  to  begin  at  subsequent  date,  valid;  Turner  v.  Trail,  24  Okla.  138  103 
Pac.  575,  holding  same. 

Cited  in  notes  (8  LR.A.  221)  on  tenancy  from  year  to  year;  (16  Am.  St.  Rep, 
765)  on  verbal  lease  for  more  than  a  year. 

Disapproved  in  A.  G.  Rhodes  Furniture  Co.  v.  Weeden,  108  Ala.  255,  19  So.  318, 
holding  possession  under  contract  and  part  payment  renders  agreement  valid. 

2  L.  R.  A.  848,  COFFMAN  v.  HEAT.NOLE,  85  Va.  459,  17  Am.  St.  Rep.  69, 

8   S.  E.   672. 
Intention    of    testator    to    disinherit    heirs. 

Cited  in  Hurst  v.  Von  De  Veld,  158  Mo.  247,  58  S.  W.  1056;  Zimmerman 
v.  Hafer,  81.  Md.  357,  32  Atl.  316;  Lawrence  v.  Smith,  163  111.  166,  45  N.  E. 
259,  —  holding  mere  intention  of  testator  to  disinherit,  although  clearly  ex- 
pressed, not  sufficient;  Todd  v.  Gentry,  109  Ky.  708,  60  S.  W.  639,  holding  will 
limiting  heir's  inheritance  to  $2  does  not  disinherit  him  as  to  property  un- 
disposed of  by  will;  Headrick  v.  McDowell,  102  Va.  127,  65  L.R.A.  582,  102  Am. 
St.  Rep.  843,  45  S.  E.  804,  holding  an  estate  descended  by  operation  of  law  where 
father  died  intestate  notwithstanding  two  of  his  three  sons  had  executed  release* 
for  advances. 

Cited  in  note    (11   L.  R.  A.   767)    on  "disherison." 

Distinguished  in  Murphy's  Estate,  104  Cal.  567,  38  Pac.  543,  upholding 
holographic  will  disinheriting  part  of  children,  but  devising  property  to  others, 
Requisites  of  Trill. 

Cited  in  Mulholland  v.  Gillan,  25  R.  I.  91,  54  Atl.  928,  1  A.  &  E.  Ann.  Cas.  366r 
holding  an  instrument  might  be  a  will  although  it  made  no  other  disposition  of 
property  than  the  payment  of  debts;  Re  Davis,  45  Misc  557,  92  N.  Y.  Supp.  968r 
holding  a  valid  will  might  be  made  without  the  appointment  of  an  executor. 

Cited  in  note  (89  Am.  St.  Rep.  487)  on  what  constitutes  a  testamentary  writ- 
ing. 


2  L.R.A.  848]  L.  R.  A.  CASES  AS  AUTHORITIES.  410 

2  L.  R.  A.  853,  SOUTH  NASHVILLE  STREET  R.  CO.  v.  MORROW,  87  Tenn. 

406,    11    S.    W.    348. 
Legislative  control  of  taxation. 

Cited  in  Adams  v.  Kuykendall,  83  Miss.  594,  35  So.  830,  sustaining  statute 
authorizing  state  revenue  agent  to  assess  municipal  taxes  on  property  omitted 
by  municipal  officers;  Pryor  v.  Bryan,  11  Okla.  366,  66  Pac.  348,  holding 
statute  exempting  property  on  Indian  reservation  from  taxation,  except  for 
territorial  and  court  funds,  not  unconstitutional;  Cleveland  v.  United  States,  93 
C.  C.  A.  274,  166  Fed.  682,  on  the  right  to  reassess  and  collect  taxes  for  former 
years. 
Taxation  of  corporation  —  Franchise. 

Cited  in  State  ex  rel.  Milwaukee  Street  R.  Co.  v.  Anderson,  90  Wia.  560, 
63  N.  W.  746,  holding  franchise  property,  included  with  personalty,  taxable  as 
entirety  where  statute  fails  to  specify  manner  of  valuation  and  taxation;  Af- 
rica v.  Knoxville,  70  Fed.  734,  holding  easement  in  street  acquired  under 
railway  franchise  taxable  as  property;  Detroit  Citizens'  Street  R.  Co.  v.  De- 
troit, 125  Mich.  687,  84  Am.  St.  Rep.  589,  85  N.  W.  96,  holding  franchise  prop- 
erty included  under  statute  requiring  assessment  of  street  railway  "tracks;" 
Southwestern  Teleg.  &  Teleph.  Co.  v.  San  Antonio,  32  Tex.  Civ.  App.  102,  73  S. 
W.  859,  holding  franchises  were  properly  taxable 

Cited  in  notes  (57  L.  R.  A.  37,  38)  on  nature  of  franchises  as  subjects  of 
taxation;  (57  L.  R.  A.  40)  on  taxability  of  franchises;  (58  L.  R.  A.  564)  on 
taxation  of  corporate  franchises;  (60  L.  R.  A.  333)  on  taxation  of  franchises, 
privileges,  and  occupations;  (66  L.R.A.  55)  on  nature  of  railroad  as  realty  or 
personalty. 
Stock. 

Cited  in  Memphis  v.  Union  &  Planters'  Bank,  91  Tenn.  550,  19  S.  W.  758, 
holding  that  payment  of  tax  on  shares  of  stock  "in  lieu  of  all  other  taxes" 
under  charter  exempts  capital  stock  from  taxation;  Memphis  v.  Memphis  City 
Bank,  91  Tenn.  578,  19  S.  W.  1045,  and  Memphis  v.  Home  Ins.  Co.  91  Tenn. 
561,  19  S.  W.  1042,  holding  payment  of  tax  on  "amount  of  capital  actually 
paid  in"  under  charter  exempts  capital  stock  from  further  taxation,  but  not 
shares  of  stock;  State  v.  Bank  of  Commerce,  95  Tenn.  227,  31  S.  W.  993,  holding 
tax  on  capital  stock  in  lieu  of  all  other  taxes  does  not  exempt  shares  of  stock, 
surplus,  or  undivided  profits;  German  American  Sav.  Bank  v.  Burlington, 
118  Iowa,  86,  91  N.  W.  829,  holding  bank  cannot  deduct  from  shares  of  its  stock 
assessed  to  it,  government  bonds  held  as  part  of  capital. 

Cited  in  notes  (58  L.  R.  A.  590)  on  double  taxation  of  corporation  and 
stockholder;  (60  L.  R.  A.  367)  on  double  taxation;  (58  L.  R.  A.  588)  on  duty 
of  corporation  to  collect  tax  on  share  stock. 

Not  followed  in  Stroh  v.  Detroit,  131  Mich.  116,  90  N.  W.  1029,  holding  tax- 
ation  of   shares   in   foreign   corporation   whose   property   is   situated   and   taxed 
in   state   double. 
Exemptions. 

Cited  in  Union  &  Planters'  Bank  v.  Memphis,  101  Tenn.  159,  46  S.  W.  557, 
holding  exemption  of  capital  stock  constitutional,  but  not  exemption  of  shart-a 
of  stock;  Knoxville  &  O.  R.  Co.  v.  Harris,  99  Tenn.  697,  53  L.  R.  A.  927,  43  S. 
W.  115,  holding  franchise  and  surplus  fund  not  included  in  exemption 
of  capital  stock,  road,  fixtures,  etc.;  Grundy  County  v.  Tennessee 
Coal,  I.  &  R.  Co.  94  Tenn.  304,  29  S.  W.  116,  holding  suit  properly  brought 
by  owner,  if  valuation  contested,  but  by  collector,  if  right  to  assess  denied. 


411  L.  R.  A.  CASES  AS  AUTHORITIES.  [2  L.R.A.  853 

Valuation   for   taxation. 

Cited  in  Carroll  v.  Alsup,  107  Tenn.  293,  64  S.  W.  193,  holding  actual  cash 
value  proper  basis  of  assessment;  Reelfoot  Lake  Levee  Dist.  v.  Dawson,  97 
Tenn.  161,  34  L.  R.  A.  728,  36  S.  W.  1041,  holding  Acts  1895,  Ex.  Sess.  chap.  1,  §* 
6,  21,  unconstitutional  for  disregard  of  requirement  of  taxation  according  to 
value;  State  v.  Weyerhauser,  68  Minn.  368,  71  N.  W.  265,  upholding  validity  of 
statute  providing  for  reassessment  of  undervalued  property  and  enforcement 
of  additional  tax;  Railroad  &  Teleph.  Co.  v.  Board  of  Equalizers,  85  Fed. 
317,  enjoining  collection  of  tax  where  assessment  unequal,  though  complainants1 
property  not  overvalued. 

Cited  in  footnote  to  State  ex  rel.  Davis  &  S.  Lumber  Co.  v.  Pors,  51  L.  R 
A.  917,  which  authorizes  reassessment  of  personalty  omitted  in  previous  vear. 
though  no  longer  in  existence. 

Denied  in  Galusha  v.  Wendt,  114  Iowa,  611,  87  N.  W.  512,  suggesting  reas- 
sessment of  mistakenly  undervalued  property  in  same  year  unjust  in  view  of 
honest    diversity   of    opinion. 
Definition  of  "capital  stock." 

Cited  in  Tradesman  Pub.   Co.  v.  Knoxville  Car   Wheel  Co.  95  Tenn.  656,  31 
L.   R.   A.   600,  49  Am.   St.  Rep.   943,   32   S.   W.   1097,  holding  limit  to  amount 
of   capital   stock   does   not   restrict   amount   of   property   that   corporation   may 
acquire. 
Situs  of  personalty  for  taxation. 

Cited  in  Jack  v.  Walker,  79  Fed.  142,  holding  bond  and  mortgage  owned  by 
nonresident  not  taxable,  though  in  hands  of  resident  agent  for  collection;  Min- 
neapolis &  N.  Elevator  Co.  v.  Traill  County,  9  N.  D.  221,  50  L.  R,  A.  271,  82 
N.  W.  727,  holding  elevator  company  taxable  for  grain  therein,  though  owners 
nonresidents;  Western  Assur.  Co.  v.  Halliday,  61  C.  C.  A.  273,  126  Fed.  259,  up- 
holding taxation  of  municipal  bonds  deposited  with  superintendent  of  insurance 
by  foreign  insurance  company. 

Cited  in  notes  (9  L.R.A.(N.S.)  1104)  on  debt  due  nonresident  secured  upon  land 
within  state  as  subject  of  inheritance  tax;   (62  Am.  St.  Rep.  450,  451,  453,  454, 
459)  on  situs  of  personal  property  for  purposes  of  taxation. 
Stock. 

Cited  in  State  v.  Kidd,  125  Ala.  421,  28  So.  480,  holding  situs  of  stock  of  for- 
eign corporation  at  owner's  domicil,  unless  otherwise  fixed  by  statute;  Greves 
v.  Shaw,  173  Mass.  208,  53  N.  E.  372,  holding  stock  of  domestic  corporations  and 
national  banking  corporations  located  in  state  subject  to  taxation  under  general 
tax  law;  Augusta  v.  Kimball,  91  Me.  607,  41  L.  R,  A.  476,  40  Atl.  666,  holding 
stock  in  foreign  corporation  held  by  nonresident  trustees  for  resident  beneficiaries 
not  subject  to  taxation;  Judy  v.  Beckwith,  137  Iowa,  35,  15  L.R.A.(N.S.)  149, 
114  X  W.  565.  15  A.  &  E.  Ann.  Cas.  890,  holding  shares  in  a  foreign  corporation 
held  within  the  state  were  taxable  as  personalty;  Neilson  v.  Russell,  76  N.  J.  L. 
37,  69  Atl.  476,  holding  shares  of  stock  in  a  corporation  organized  within  the 
state  were  taxable  under  a  succession  tax. 

Cited  in  note   (58  L.  R.  A.  582)   on  taxation  of  stock  in  domestic  corporation 
held  by  nonresident. 
Situs  of  debts. 

Cited  in  Dillingham  v.  Traders'  Ins.  Co.  120  Tenn.  310,  16  L.R.A.(N.S.)  222,  108 
S.  W.  1148,  holding  credits  owing  to  a  foreign  insurance  company  by  its  agents 
for  purposes  of  attachment  are  situated  in  the  state. 


2  L.R.A.  863]  L.  R.  A.  CASES  AS  AUTHORITIES.  412 

2  L.  R.  A.  863,  HAWES  v.  NICHOLAS,  72  Tex.  481,  10  S.  W.  558. 
Revocation   of   will. 

Cited  in  Dougherty  v.  Holscheider,  40  Tex.  Civ.  App.  36,  88  S.  W.  1113,  holding 
a  will  might  be  revoked  by  a  subsequent  inconsistent  conditional  holographic  will. 

Cited  in  footnotes  to  Miles's  Appeal,  36  L.  R.  A.  176,  which  holds  erasure  of 
specific  legacy  from  will  not  revocation  of  legacy;  Billington  v.  Jones,  56  L.  R. 
A.  654,  which  holds  will  revoked  by  writing  on  it  statement  that  it  is  void,  stating 
that  it  is  killed,  and  filing  it  away;  Cutler  v.  Cutler,  57  L.  R.  A.  209,  which  holds 
will  revoked  by  adopting  mutilations  by  vermin. 

Cited  in  notes  (7  L.  R.  A.  486)  on  revocation,  revival,  and  republication  of 
will;  (37  L.  R.  A.  577)  on  revocation  of  will  by  subsequent  will,  and  revival  of 
former  by  destruction  of  the  latter;  (38  L.  R.  A.  439)  on  evidence  to  establish 
lost  or  destroyed  wills;  (28  Am.  St.  Rep.  355)  on  revocation  of  wills;  (76  Am. 
St.  Rep.  252)  on  republication  of  revoked  wills. 
Revival  of  earlier  will  by  destruction  of  later  testament. 

Disapproved  in  Re  Gould,  72  Vt.  318,  47  Atl.  1082,  holding  destruction  of  sub- 
sequent revoking  will  may  revive  former  will  without  republication,  if  so  in- 
tended; Stetson  v.  Stetson,  200  111.  608,  612,  61  L.  R.  A.  262,  66  N.  E.  262, 
holding  destruction  of  will  revives  former  will  therein  revoked,  if  uncanceled; 
Bates  v.  Hacking,  29  R.  I.  8,  14  L.R.A.(N.S-)  942,  68  Atl.  624,  holding  the  inten- 
tional destruction  of  a  revoking  will  leaves  the  former  one  in  force. 


L.  R  A.  CASES  AS  AUTHORITIES. 


OASES    IN    3    L.    R.    A. 


3  L.  R.  A.  33,  BINKLEY  v.  FORKXER,  117  Ind.  176,  19  N.  E.  753. 

Judgment  sustaining  demurrer  to  supplemental  answer  reversed,  and  motion 
for  new  trial  overruled,  in  134  Ind.  614,  33  N.  E.  619. 

Followed  without  discussion  in  Parker  Land  &  Improv.  Co.  v.  Reddick,  18  Ind 
App.  619,  47  N.  E.  848. 

Referred  to  in  Snowhill  v.  Diamond  Plate  Glass  Co.  39  Ind.  App.  243,  77  N.  E. 
412,  as  a  stage  of  a  litigation  culminating  in  a  decision  on  conclusiveness  of  prior 
adjudication  as  to  same  subject  matter  but  under  different  state  of  facts. 
Intention   of  parties   in   determination   of   nature   of   fixtures,   machinery, 
etc. 

Cited  in  Saint  Joseph  Hydraulic  Co.  v.  Wilson,  133  Ind.  471,  33  N.  E.  113, 
holding  fixtures  and  machinery  in  mill  personalty  as  between  parties  to  agree- 
ment for  lien  thereon;  Gordon  v.  Miller,  28  Ind.  App.  615,  63  N.  E.  774,  hold- 
ing engine,  boiler,  machinery,  and  three-story  brick  mill  resting  on  stone  founda- 
tion, chattels  as  between  chattel  mortgagor  and  mortgagee,  and  subject  to  re- 
plevin; Cooke  v.  McNeil,  49  Mo.  App.  84,  holding  furnace  resting,  without  at- 
tachment, on  specially  built  platform  of  brick,  but  intended  as  permanent  if  satis- 
iactory,  realty  so  as  to  subject  house  to  lien;  McFarlane  v.  Foley,  27  Ind.  App. 
486,  87  Am.  St.  Rep.  264,  60  N.  E.  357,  holding  chandeliers  and  bracket  lights 
attached  with  intent  of  permanency,  realty  within  mechanics'  lien  law;  Parker 
Land  &  Improv.  Co.  v.  Reddick,  18  Ind.  App.  619,  47  N.  E.  848,  holding  tank 
set  up  on  board  platform  on  grade  of  earth  especially  built  for  purpose,  pre- 
sumptively intended  as  fixture  within  mechanics'  lien  law;  Parker  Land  &  Im- 
prov. Co.  v.  Reddick,  20  Ind.  App.  702,  50  X.  E.  1125  (dissenting  opinion),  ma- 
jority holding  to  same  effect;  Button  v.  Ensley,  21  Ind.  App.  49,  69  Am.  St.  Rep. 
340,  51  N.  E.  380,  holding  dwelling  house  resting  on  blocks  realty  where  in- 
tended as  permanent  residence;  Fletcher  v.  Kelly,  88  Iowa,  486,  21  L.  R.  A.  352, 
55  X.  W.  474,  holding  brick-veneered  building  built  by  lessee  under  agreement 
preventing  removal  at  end  of  term  without  lessor's  permission,  realty  included 
in  mortgage  of  lessee's  interest;  Brownell  v.  Fuller,  60  Xeb.  564,  83  X.  W.  669, 
holding  intention  of  tenant  in  placing  machinery  on  premises,  question  for  jury; 
\Yhite  v.  Cincinnati,  R.  &  M.  R.  Co.  34  Ind.  App.  292,  71  N.  E.  276,  holding  in  a 
proceeding  to  condemn  for  a  railroad  right  of  way  land  on  which  there  are  build- 
ings constituting  a  manufacturing  plant,  the  machinery  necessary  to  carry  on 
the  business  of  the  plant  regardless  of  the  manner  of  its  attachment  should  be 
considered  a  part  of  the  freehold  in  estimating  damages 

Cited  in  footnotes  to  Atchison,  T.  &  S.  F.  R.  Co.  v.  Morgan,  4  L.  R.  A.  284, 
which  holds  pump  and  boiler  placed  by  railroad  on  another's  land  under  belief 
that  it  owns  same,  personalty;  Leonard  v.  Clough,  16  L.  R.  A.  305,  which  holds 

413 


3  L.R.A.  33]  L.  R.  A.  CASES  AS  AUTHORITIES.  414 

barn  placed  by  owner  on  own  land  on  stones  resting  on  surface  a  fixture;  Murray 
v.  Bender,  63  L.R.A.  783,  which  holds  chairs,  stage  fixtures,  and  drop  curtains 
annexed  to  theater  to  make  possible  the  use  of  the  building,  fixtures;  Giddings  v. 
Freedley,  65  L.R.A.  327,  which  holds  main  belt  transmitting  power  from  an  engine 
so  annexed  to  building  as  to  be  real  estate,  to  machinery  in  mill,  real  estate. 

Cited  in  notes  (19  L.  R.  A.  442)  on  effect  of  agreement  to  prevent  fixtures  be- 
coming part  of  realty;  (15  L.  R.  A.  57,  60,  62)  on  efficacy  of  chattel  mortgage  on 
fixtures;  (9  L.  R.  A.  700)  on  right  of  tenant  to  remove  fixtures;  (4  L.  R.  A. 
674;  5  L.R.A.  150,  594;  6  L.R.A.  249;  10  L.R.A.  723)  on  what  are  fixtures;  (69- 
L.R.A  893)  on  things  placed  on  land  with  intention  of  annexing  but  never  actu- 
ally attched,  as  fixtures;  (13  Am.  St.  Rep.  153)  on  what  are  fixtures;  (84  Am. 
St.  Rep.  882,  890)  on  fixtures  retaining  by  agreement  the  character  of  personal 
property. 
Rights  to  fixtures  —  Under  prior  mortgage. 

Cited  in  German  Sav.  &  L.  Soc.  v.  Weber,  16  Wash.  101,  38  L.  R.  A.  270,  47 
Pac.  224,  holding  contract  under  which  window  and  door  sashes,  doors,  etc.,  were 
furnished,  and  by  which  they  were  to  remain  personalty,  controlling  as  against 
prior  mortgagee  of  realty,  where  freehold  not  injured  by  removal;  Paine  v.  Mc- 
Dowell, 71  Vt.  34,  41  Atl.  1042,  holding  mill  machinery  placed  in  temporary 
structure  for  temporary  use,  under  agreement  with  owner,  chattels  as  against 
prior  mortgagee  of  realty  whose  security  is  not  affected  by  removal;  Hurxthal  v. 
Hurxthal,  45  W.  Va.  585,  32  S.  E.  237,  holding  mill  machinery  furnished  under 
chattel  mortgage  for  purchase  price,  subject,  after  placed  in  mill,  to  prior  realty 
mortgage,  thereon,  only  so  far  as  realty  depreciated  by  reason  of  its  placing  ant! 
removal;  Willis  v.  Hunger  Improved  Cotton  Mach.  Mfg.  Co.  13  Tex.  Civ.  App. 
681,  36  S.  W.  1010,  holding  cotton  gin  machinery  placed  in  position  under  chattel 
mortgage,  personalty  as  against  lien  of  prior  vendors  of  land:  J.  L.  Mott  Iron 
Works  v.  Middle  States  Loan.  Bldg.  &  Constr.  Co.  17  App.  D.  C.  597,  holding 
title  to  steam  radiators  supplied  under  contract  reserving  title  to  vendor  until 
payment  does  not  pass  to  purchaser  on  foreclosure  of  prior  realty  mortgage; 
Tippett  v.  Barham,  37  L.R.A.(N.S.)  130,  103  C.  C.  A.  430,  180  Fed.  79,  holding 
that  builders  of  standpipe  cannot  reserve  right  of  removal  as  against  mortgage 
of  after-acquired  property;  James  Leo  Co.  v.  Jersey  City  Bill  Posting  Co.  78  X. 
J.  L.  152,  73  Atl.  1046.  holding  bona  fide  purchaser  not  affected  by  agreement 
between  grantor  and  tenant  for  removal  of  fence;  Cox  v.  Xew  Bern  Lighting  & 
Fuel  Co.  151  N.  C.  67,  134  Am.  St.  Rep.  966,  65  S.  E.  648,  holding  mortgagee  of 
realty  has  no  equitable  claim  to  chattels  subsequently  annexed  to  it;  Lazear  v. 
Ohio  Valley  Steel  Foundry  Co.  65  W.  Va.  112,  63  S.  E.  772,  as  to  when  chattel 
mortgage  is  effectual  to  preserve  the  character  of  the  mortgaged  chattels  as 
against  mortgage  of  realty  executed  prior  thereto. 

Cited  in  footnotes  to  Anderson  v.  Creamery  Package  Mfg.  Co.  56  L.  R.  A.  554, 
which  holds  mortgage  to  seller  of  machinery  purchased  for  use  in  permanent 
building  superior  to  existing  real-estate  mortgage;  Neufelder  v.  Third  Street  & 
Suburban  R.  Co.  53  L.  R.  A.  601,  which  holds  machinery  steadied  by  bolts  and 
screws  fastening  it  to  building  not  fixture  as  to  mortgagee. 

Cited  in  notes  (37  L.R.A.  (X.S.)  122)  on  rights  of  seller  of  chattel,  retaining 
title  thereto  or  a  lien  thereon,  as  against  existing  mortgagees  of  the  realty  to 
which  it  is  affixed  by  the  owner:  (109  Am.  St.  Rep.  446)  on  mortgagees'  right  to 
recover  fixtures  from  third  persons;  (1  Brit.  Rul.  Cas.  680)  on  rights  of  seller 
of  fixtures,  retaining  title  thereto  or  a  lien  thereon,  as  against  purchasers  or  en- 
cumbrancers of  the  realty. 

Distinguished  in  Fisk  v.  People's  Xat.  Bank,  14  Colo.  App.  29,  59  Pac.  63, 
holding  heavy  machinery  fastened  to  brick  foundation  sunk  in  ground,  realty  as 


415  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  37 

between  prior  mortgagee  of  land  and  claimant  under  chattel  mortgage  of  ma- 
chinery not  executed  until  after  machinery  set  in  place. 

Disapproved  in   Fuller- Warren  Co.  v.  Harter,   110  Wis.  87,  53  L.  R.  A.  607, 
84  Am.  St.  Rep.  867,  85  N.  W.  698,  holding  hot-air  furnace  furnished  under  con- 
tract reserving  title  to  vendor,  realty  as  to  prior  mortgagee  of  realty,  and  subject 
to  his  prior  claim. 
Under   subsequent   mortgage. 

Cited  in  Landigan  v.  Mayer,  32  Or.  250,  51  Pac.  649,  holding  planer,  boiler, 
engine,  and  governor,  built  into  mill  in  construction,  realty  as  against  subsequent 
mortgagee  of  premises  without  notice,  though  personalty  between  original  par- 
ties by  agreement;  Alberson  v.  Elk  Creek  Min.  Co.  39  Or.  559,  65  Pac.  978,  hold- 
ing steel  rails,  spikes,  etc.,  by  construction  into  mine  railroad  become  realty 
not  subject  to  subsequent  chattel  mortgage. 
Objection  for  defect  of  parties. 

Cited  in  Browning  v.  Smith,  139  Ind.  291,  37  N.  E.  540,  holding  judgment  in 
foreclosure  conclusive  upon  parties  thereto,  though  owner  of  equity  of  redemption 
not  joined,  where  no  objection  taken  in  that  suit. 
Bill   of  exceptions. 

Distinguished  in  Smith  v.  Walker,  7  Ind.  App.  618,  34  N.  E.  843,  holding  ref- 
erence in  bill  of  exceptions  to  original  note  read  in  evidence,  not  satisfied  by 
exhibit  of  copy  of  note  attached  to  complaint;  Miller  v.  Coulter,  156  Ind.  294, 
59  N.  E.  853,  holding  words  "here  insert,"  followed  by  reference  to  page  and 
line  of  transcript  where  affidavit  improperly  included,  insufficient  to  incorporate 
same  in  record  on  appeal. 

3  L.  R.  A.  37,  MORROW  v.  NASHVILLE  IROX,  STEEL  &  CHARCOAL  CO.  87 

Tenn.  262.  10  Am.  St.  Rep.  658,  10  S.  W.  495. 
Subscriptions   to  stock. 

Cited  in  Ollesheimer  v.  Thompson  Mfg.  Co.  44  Mo.  App.  183,  holding  stock- 
holder liable  to  creditor  for  balance  of  subscription  to  stock,  in  spite  of  ex- 
traneous agreement  to  contrary  with  agent  of  corporation  at  time  of  subscrip- 
tion; Davis  Bros.  v.  Montgomery  Furnace  &  Chemical  Co.  101  Ala.  131,  8  So. 
496,  holding  subscribers  to  bonds  with  bonus  stock  arrangement  not  liable  for 
unpaid  subscription  to  bonds  as  for  unpaid  subscription  to  stock;  Knight  &  W. 
Co.  v.  Tampa  Sand  Line  Brick  Co.  55  Fla.  742.  46  So.  285,  holding  liability  of 
stockholders  on  the  insolvency  or  dissolution  of  the  corporation  for  the  full 
amount  represented  by  the  unpaid  stock  extends  to  persons  to  whom  stock  has 
been  issued  gratuitously  as  an  inducement  to  purchase  bonds  of  corporation,  even 
though  the  certificates  may  recite  that  such  stock  is  fully  paid;  McVity  v.  E. 
D.  Albro  Co.  90  App.  Div.  124,  86  N.  Y.  Supp.  144  (dissenting  opinion),  as  to 
breach  of  condition  subsequent  being  no  ground  for  rescinding  purchase  of  stock; 
Weaver  Power  Co.  v.  Elk  Mountain  Mill  Co.  154  X.  C.  78,  69  S.  E.  747,  holding 
that  preferred  stockholder  cannot  share  pro  rata  with  creditors  in  corporate 
assets:  Sweeney  v.  Tennessee  C.  R.  Co.  118  Tenn.  314,  100  S.  W.  732,  holding  in 
a  subscription  by  a  city  to  stock  of  a  railroad  company  made  under  act  authoriz- 
ing cities  to  subscribe  to  such  stock  and  prescribing  the  manner  of  making  the 
subscription  there  is  no  implied  condition  that  the  subscription  shall  be  void  un- 
less all  the  stock  of  the  company  is  subscribed;  Rolapp  v.  Ogden  &  X  W.  R.  Co. 
37  Utah,  556,  110  Pac.  364,  holding  that  corporation  cannot  issue  bonds  as 
bonus  to  subscribers  to  stock. 

Cited  in  notes  (38  L.  R.  A.  494)  on  bonus  stock  of  corporations;  (25  L.  R.  A. 
102)  on  duties  and  liabilities  of  promoters  of  corporation  and  its  members;  (3 


I 


3  L.R.A.  37]  L.  R.  A.  CASES  AS  AUTHORITIES.  416 

L.  R.  A.  797)  on  validity  of  secret  arrangement  with  subscriber  to  corporate 
stock;  (4  L.R.A.  521)  on  vote  of  corporate  stock  by  proxy;  (44  L.  ed.  U.  S.  424) 
on  stock  as  bonus  to  purchaser  of  bonds. 

Distinguished  in  Rickerson  Roller-Mill  Co.  v.  Farrell  Foundry  &  Mach.  Co. 
23  C.  C.  A.  305,  43  U.  S.  App.  452,  75  Fed.  558,  holding  agreement  between  cor- 
poration and  subscribers  for  issuance  of  stock  at  less  than  par,  valid  even  as  to 
creditors  aware  thereof,  in  the  absence  of  charter  or  statutory  prohibition;  Hand- 
ley  v.  Stutz,  139  U.  S.  434,  35  L.  ed.  237,  11  Sup.  Ct.  Rep.  530,  Reversing  41  Fed. 
546,  holding  purchaser  of  stocks  and  bonds  of  going  concern  issued  to  raise  funds 
to  meet  debts,  not  liable  for  balance  of  par  value  to  subsequent  creditor;  Hamlin 
v.  Toledo,  St.  L.  &  K.  C.  R.  Co.  36  L.  R.  A.  831,  24  C.  C.  A.  278,  47  U.  S.  App.  422, 
78  Fed.  671,  holding  preferred  nonvoting  stockholders  proper  parties  to  creditors 
and  mortgagees'  bill  to  wind  up  corporation  and  distribute  assets;  South  Nash- 
ville Street  R.  Co.  v.  Morrow,  87  Tenn.  430,  2  L.  R.  A.  860,  US.  W.  348,  dictum 
holding  bonds  issued  to  nonresident  stockholders  of  going  concern  in  view  of  prior 
remission  of  dividends  not  subject  to  taxation. 
Ultra  vires  contract. 

Cited  in  McCutcheon  v.  Merz  Capsule  Co.  31  L.  R.  A.  420,  19  C.  C.  A.  115,  37 
TJ.  S.  App.  586,  71  Fed.  794,  holding  contract  by  corporation  to  convey  all  prop- 
erty to  new  corporation,  taking  stock  and  mortgage  bonds  in  return,  ultra  vires 
and  void  between  parties. 

Cited  in  note  (7  Eng.  Rul.  Cas.  405)  on  power  of  corporation  to  issue  fully 
paid  up  stock  and  debentures  at  a  discount. 

3  L.  R.  A.  43,  PUCKETT  v.  ALEXANDER,  102  N.  C.  95,  8  S.  E.  767. 
Effect   of  statute  licensing1  employment. 

Cited  in  Cansler  v.  Penland,  125  N.  C.  580,  48  L.  R.  A.  442,  34  S.  E.  683, 
holding  sheriff  cannot  farm  out  collection  of  taxes  on  commission;  Denning  v. 
Yount,  62  Kan.  221,  50  L.  R.  A.  105,  61  Pac.  803,  holding  real-estate  agents  can- 
not collect  commissions  for  sale  made  without  paying  license  tax;  Kenedy  v. 
Schultz,  6  Tex.  Civ.  App.  465,  25  S.  W.  667,  holding  physician  not  complying  with 
law  requiring  license  to  practice  cannot  recover  for  services. 

Cited  in  note    (16  L.  R.  A.  425)    on  effect  of  failure  to   procure  license   for 
business  on  validity  of  contract  therein. 
Effect  of  contract  void  at  inception. 

Cited  in  Long  v.  Rankin,  108  N.  C.  336,  12  S.  E.  987,  holding  wife's  note  in- 
cipiently  void  not  rendered  lawful  by  promise  to  pay  after  discoverture ;  Hughes 
v.  Boone,  102  N.  C.  164,  9  S.  E.  286,  holding  usurious  contract  not  rendered  law- 
ful by  repeal  of  act  making  it  usurious;  McNeill  v.  Durham  &  C.  R.  Co.  135 
N.  C.  734,  47  S.  E.  765,  67  L.R.A.  250  (dissenting  opinion),  majority  holding  pas- 
senger's right  to  damages  not  affected  by  contract  on  back  of  void  pass. 

Cited  in  notes  (53  L.R.A.  370)  on  moral  obligation  as  consideration  for  promise; 
(117  Am.  St.  Rep.  507)  on  contracts,  consideration  for  which  has  partly  failed 
or  is  partly  illegal. 

Distinguished  in  Riley  v.   Collins,   16   Colo.   App.   283,   64  Pac.   1052,  holding 
record   of   certificate   to   practice   medicine  not  necessary  to   allow  recovery  for 
services. 
Contract  in  violation  of  criminal  statute. 

Cited  in  Lloyd  v.  North  Carolina  R.  Co.  151  N.  C.  540,  —  L.R.A  (N.S.)  — ,  66  S. 
E.  604,  holding  no  action  will  lie  thereon. 

Cited  in  note  (12  L.R.A.(N.S.)  591,  594)  on  validity  of  contracts  in  business 
-which  it  is  misdemeanor  to  transact. 


417  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  44 

3  L.  R.  A.  44,  GREENWOOD  v.  PHILADELPHIA,  W.  &  B.  R.  CO.  124  Pa.  572, 

10  Am.  St.  Rep.  614,  17  Atl.  188. 
Duty  of  traveler  at  crossing* 

Cited  in  Shirk  v.  Wabash  R.  Co.  14  Ind.  App.  135,  42  N.  E.  656,  holding  child 
of  twelve  years  negligent  in  not  heeding  ringing  of  bell  and  blowing  of  whistle; 
Lake  Shore  &  M.  S.  R.  Co.  v.  Frantz,  127  Pa.  307,  4  L.  R.  A.  391,  18  Atl.  22, 
holding  duty  to  stop,  look,  and  listen  imperative  even  if  gates  at  railway  crossing 
up;  Aiken  v.  Pennsylvania  R.  Co.  130  Pa.  395,  17  Am.  St.  Rep.  775,  18  Atl.  619, 
holding  failure  to  stop  on  sight  of  approaching  train  negligence  per  se;  Chicago, 
R.  I.  &  P.  R.  Co.  v.  Crisman,  19  Colo.  34,  34  Pac.  286,  holding  traveler  must 
exercise  caution  in  approaching  railway  crossing,  though  signals  not  given;  Bates 
v.  Fremont,  E.  &  M.  Valley  R.  Co.  4  S.  D.  406,  57  N.  W.  72,  holding  use  of  no 
precaution  at  obstructed  railway  crossing,  negligence;  Fletcher  v.  Fitchburg  R. 
Co.  149  Mass.  134,  3  L.  R.  A.  746,  21  N.  E.  302,  holding  traveler  negligent  for 
driving  over  railway  crossing  without  stopping  to  look;  Richmond  v.  Chicago  & 
W.  M.  R.  Co.  87  Mich.  383,  49  N.  W.  621,  holding  jury  should  determine  whether 
deceased  negligent  in  not  looking  when  flagman  absent  from  post;  Houghton  v. 
Chicago  &  G.  T.  R.  Co.  99  Mich.  310,  58  N.  W.  314,  holding  traveler  attempting 
to  cross  railway  with  obstructed  view,  without  necessary  precaution,  negligent; 
White  v.  Chicago  &  N.  W.  R.  Co.  102  Wis.  496,  78  N.  W.  585,  holding  traveler 
cannot  rely  upon  crossing  gates  being  up;  Baltimore  &  O.  R.  Co.  v.  Talmage,  15 
Ind.  App.  220,  43  X.  E.  1019,  holding  deceased  negligent  in  not  heeding  what  she 
saw  and  heard;  Erie  R.  Co.  v.  Schultz,  106  C.  C.  A.  23,  183  Fed.  675,  holding  that 
man  driving  across  railroad  after  gates  are  lifted  is  not  contributorily  negligent: 
Ihrig  v.  Erie  R.  Co.  210  Pa.  100,  59  Atl.  686,  holding  failure  to  stop,  look  and 
listen  before  going  on  a  railroad  track  is  negligence;  Koch  v.  Southern  C.  R.  Co. 
148  Cal.  680,  4  L.R.A.(N.S.)  523,  113  Am  St.  Rep.  332,  84  Pac.  176,  7  A.  &  E. 
Ann.  Cas.  795,  holding  a  person  who  drives  rapidly  over  a  railroad  crossing  with- 
out looking  at  all  for  an  approaching  train  or  taking  any  precautions  as  to  his 
own  safety  is  negligent,  though  the  gates  at  the  crossing  are  open;  Lohrey  v. 
Pennsylvania  R.  Co.  36  Pa.  Super.  Ct.  290;  Union  P.  R.  Co.  v.  Rosewater,  15 
L.R.A  (X.S.)  808,  84  C.  C.  A."  616,  157  Fed.  172,  13  A.  &  E.  Ann.  Cas  851,— holding 
open  gates  or  a  signal  from  a  flagman  to  cross  do  not  relieve  a  traveler  from  the 
duty  to  look  and  listen  before  entering  upon  tracks. 

Cited  in  footnotes  to  Woehrle  v.  Minnesota  Transfer  R.  Co.  52  L.  R.  A.  348, 
which  sustains  traveler's  right  to  rely  on  watchman's  absence  from  crossing; 
Van  Auken  v.  Chicago  &  W.  M.  R.  Co.  22  L.  R.  A.  33,  which  holds  failure  to 
look  and  listen  on  dark  night  does  not  prevent  recovery  for  injury  by  engine 
running  backward;  Feeney  v.  Long  Island  R.  Co.  5  L.  R.  A.  544,  which  holds 
traveler  not  negligent  per  se  in  failing  to  notice  that  farther  gate  was  coming 
down  before  reaching  it. 

Cited  in  notes  (7  L.  R.  A.  318)  on  traveler's  duty  to  stop,  look  and  listen; 
(9  L.R.A.  163)  on  recovery  defeated  by  contributory  fault;  (13  Am.  St.  Rep.  93) 
on  signals,  etc.,  at  railway  crossing. 

Distinguished  in  Hanlon  v.  Milwaukee  Electric  R.  &  Light  Co.  118  Wis.  219, 
95  X.  W.  100.  sustaining  recovery  of  driver  of  hose  cart  for  injuries  from  collision 
with  street  car;  Hollinger  v.  Canadian  P.  R.  W.  Co.  21  Ont.  Rep.  710.  holding 
where  statute  provides  that  engine  shall  blow  whistle  or  ring  bell  at  crossing  and 
it  fails  to  do  so  failure  of  traveller  to  stop,  look  and  listen  is  not  contributory 
negligence  per  se. 

Disapproved  in  part  in  Louisville  &  X.  R.  Co.  v.  Webb,  90  Ala.  196.  11  L.  R, 
A.  679,  8  So.  518.  holding  traveler  must  use  his  senses  in  crossing  railway. 
L.Pv.A.  Au  Vol.  L— 27. 


I 


3  L.R.A.  41]  L.  E.  A.  CASES  AS  AUTHORITIES.  418 

When  contributory  negligence  for  Jnry. 

Cited  in  Garrity  v.  Detroit  Citizens'  Street  R.  Co.  112  Mich.  372,  37  L.  R.  A. 
531,  70  N.  W.  1018,  holding  contributory  negligence  of  one  crossing  street-railway 
track,  for  jury;  Ayers  v.  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  201  Pa.  129,  50  Atl. 
958,  holding  contributory  negligence  of  one  crossing  railway  and  struck  by  engine 
after  train  had  passed,  for  jury. 

3  L.  R.  A.  46,  WINONA  v.  SCHOOL  DIST.  NO.  82,  40  Minn.  13,  12  Am.  St.  Rep. 

687,  41  N.  W.  539. 
Liability  for  debts  after  annexation  or  division. 

Cited  in  Livingston  v.  School  Dist.  No.  7,  9  S.  D.  107,  68  N.  W.  167,  holding 
that,  in  absence  of  specific  legislative  direction,  new  school  district  not  liable  for 
proportionate  liability  on  bonds  issued  in  payment  for  schoolhouse  when  latter 
remains  in  old  district;  Pepin  Twp.  v.  Sage,  129  Fed.  660,  sustaining  liability  of 
township  and  city  as  successors  of  village  issuing  bonds. 

Cited  in  note  (39  L.R.A.  (N.S. )  286)  on  division  of  territory  of  municipality, 
town  or  county  as  affecting  assets  and  liabilities. 

Distinguished  in  First  Nat.  Bank  v.  Beltrami  County,  77  Minn.  45,  79  N.  W. 
591,  holding  "established"  county  temporarily  annexed  to  "original"  county  for 
governmental  purposes,  not  liable  after  organization  for  debts  created  by  latter 
during  annexation;  Wellcome  v.  Monticello3  41  Minn.  139,  42  N.  W.  930,  holding 
town  where  party  actually  resident  at  time  of  pauperism,  liable  to  party  sup- 
porting pauper  in  adjoining  town  incorporated  subsequent  thereto. 
Title  to  municipal  property,  on  division. 

Approved  in  Bloomfield  Twp.  v.  Glen  Ridge,  55  N.  J.  Eq.  508,  37  Atl.  63, 
holding  title  and  control  of  sewers  does  not  pass  to  municipality  in  which  par- 
tially located,  by  mere  fact  of  division. 

Cited  in  Bloomfield  Twp.  v  Glen  Ridge,  54  N.  J.  Eq.  280,  33  Atl.  925,  holding 
where  a  portion  of  territory  is  thrown  into  the  new  municipality  by  the  division 
the  power  over  it  by  the  old  corporation  is  extinct. 

Cited  in  note  (26  L.R.A.(N.S.)  487)  on  effect  of  changing  school  district 
boundaries  upon  rights  in  real  property. 

Disapproved  in  Prescott  v.  Lennox,  100  Tenn.  593,  47  S.  W.  181,  holding  each 
portion  of  municipality  on  division  holds  in  severalty  public  property  within  its 
limits;  Pass  School  Dist.  V.  Hollywood  City  School  Dist.  156  Cal.  420,  26  L.R.A. 
(N.S.)  489,  105  Pac.  122,  holding  that  school  land,  by  legislative  change  of 
boundaries  included  in  another  school  district,  becomes  property  of  such  district. 

Legislative    authority    to    apportion    municipal    debts    and    property    on 
partition. 

Cited  in  State  ex  rel.  Polk  County  v.  Demann,  83  Minn.  334,  86  N.  W.  352,  hold- 
ing apportionment  purely  question  of  legislative  discretion  so  long  as  constitu- 
tional rights  not  invaded;  Rumsey  v.  Sauk  Centre,  59  Minn.  322,  61  N.  W.  330. 
holding  apportionment  of  town  bonded  indebtedness  between  town  and  subse- 
quently incorporated  village,  valid:  State  ex  rel.  Marine  v.  Browne,  56  Minn. 
273,  57  N.  W.  659,  holding  state  has  authority,  even  after  division,  to  apportion 
taxes  levie'd  before  but  not  paid  until  after  partition  of  municipality;  Barre  v. 
School  Dist.  No.  13,  67  Vt.  113,  30  Atl.  807,  holding  town  entitled  to  fund  in 
hands  of  school  district  under  statute  creating  town  sole  district,  though  no  ex- 
press disposition  of  fund  made;  Coler  v.  Dwight  School  Twp.  3  N.  D.  261,  28 
L.  R.  A.  654,  55  N.  W.  587,  holding  school  township  properly  made  primarily 
liable  on  school-district  bonds  by  statute,  on  its  substitution  in  place  of  school 
district;  Hunter  v.  Tracy,  104  Minn  385,  116  X.  W.  922,  holding  the  legislature 
has  the  right  to  change  the  boundaries  of  a  municipality  without  apportioning 
its  indebtedness  and  providing  for  the  enforcement  of  the  liability  thereof. 


419  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  83 

Distinguished  in  Humboldt  v.  Barnesville.  83  Minn.  220,  86  N.  W.  87,  holding 
statutory  provision  exempting  city  from  liability  for  debts  of  town  out  of  which 
created,  covers  all  corporate  debts. 
Sufficiency  of  title  to  act. 

Cited  in  Winters  v.  Duluth,  82  Minn.  132,  84  N.  W.  788,  holding  statute  "Re- 
lating to  Actions  against  Cities,  etc.,  for  Injuries  on  Public  Grounds,"  covers 
provisions  for  injuries  at  "public  works  of  any  kind;"  Ek  v.  St.  Paul  Permanent 
Loan  Co.  84  Minn.  249,  87  N.  W.  844,  holding  "To  Amend  Charter  in  Relation  to 
Duties  and  Powers  of  Board  of  Public  Works"  covers  provisions  referring  to 
matters  over  which  board  had  some  control,  and  abolishing  requirement  of  signa- 
ture and  witnesses  to  certificate  of  sale  of  lots  for  special  assessments;  State 
ex  rel.  Olsen  v  Board  of  Control,  85  Minn.  174,  88  N.  W.  533,  holding  "To  Provide 
for  Management  of  Charitable  Institutions  of  State"  carries  provision  for  super- 
vision of  finances  of  state  normal  schools  by  state  board  of  control ;  State  ex  rel. 
Smith  v.  Gallagher,  42  Minn.  451,  44  X.  W.  529,  holding  "To  Amend  Act  to  De- 
fine Boundaries  and  Establish  Municipal  Government"  covers  extension  of  bound- 
aries and  extinguishment  of  village  organization ;  Willis  v.  Mabon,  48  Minn.  156, 
16  L.  R.  A.  287,  31  Am.  St.  Rep.  626,  50  N.  W.  1110,  holding  "To  Amend  Act  to 
Secure  Release  of  Debts  against  Debtors"  covers  provision  saving  from  exemption 
any  other  "party  liable  as  surety,  guarantor,  or  otherwise;"  State  v.  Honerud, 
60  Minn.  40.  68  X.  W.  323,  holding  "To  Change  Boundaries  of  Otter  Tail  County" 
covers  resulting  change  of  adjoining  Wilkin  county;  State  ex  rel.  Childs  v. 
Red  Lake  County.  67  Minn.  356,  69  N.  W.  1083,  holding  "Creation  and  Organiza- 
tion of  Xew  Counties"  covers  change  in  boundaries,  temporary  location  of  county 
seat,  and  other  matters  pertinent  to  organization  and  government;  South  St. 
Paul  v.  Lamprecht-  Bros.  Co.  31  C.  C.  A.  587,  60  U.  S.  App.  78,  88  Fed.  451, 
holding  "To  Amend  Acts  to  Incorporate  City  as  Amended,  and  To  Authorize 
Issue  of  Bonds,"  covers  provision  for  adoption  of  bridge  plan  by  council  and  sub- 
mission to  popular  vote;  Southern  P.  Co.  v.  Bartine,  170  Fed.  737,  holding  that 
statute  by  implication  repealing  former  law  need  not  express  specifically  such 
repeal  in  its  title;  Jackson  v.  Board  of  Education,  112  Minn.  171,  127  N.  W.  569, 
holding  that  amendment  entitled  "act  to  amend  charter  of  city"  sufficiently 
expresses  subject  in  title. 

Cited  in  footnote  to  Millvale  v.  Evergreen  R.  Co.  7  L.  R.  A.  369,  which  holds 
charter  for  railroad  carrying  passengers  and  freight  within  title  of  act  for  char- 
tering "passenger  railway  company." 

Cited  in  notes  (55  L.  R.  A.  849)  on  power  of  legislature  to  enact  a  code  or 
compilation  of  laws,  or  amend  many  or  undesignated  sections  thereof,  by  a 
single  statute:  (31  Am.  St.  Rep.  636)  on  amendment  of  statutes  by  reference 
to  title;  (24  Am.  St.  Rep.  518;  64  Am  St.  Rep.  75,  79,  81)  on  sufficiency  of  title 
of  statute;  (79  Am.  St.  Rep.  480)  as  to  when  title  of  statute  embraces  only  one 
subject,  and  what  may  be  included  thereunder. 
Chnrter  provision  for  school  district. 

Cited  in  State  v.  West  Duluth  Land  Co.  75  Minn.  469,  78  N.  W.  115,  holding 
constitutional  provision  against  special  legislation  granting  "corporate  powers 
or  privileges  except  to  cities"  not  violated  by  statute  establishing  and  organizing 
school  district  within  city. 

3  L.  R.  A.  50,  WRIGHT  v.  TRAVER..  73  Mich.  493,  41  N.  W.  517. 
Negotiability   of  instrument  as  affected   by  collateral  stipulation. 

Cited  in  Sylvester  Bleckley  Co.  v.  Alewine,  48  S.  C.  311,  37  L.  R.  A.  88,  26 
S.  E.  609,  holding  promissory  note  rendered  non-negotiable  by  provision  for  attor- 


I 


3  L.R.A.  50]  L.  R.  A.  CASES  AS  AUTHORITIES.  420 

ney's  fees;  Walker  v.  Thompson,  108  Mich.  688,  66  N.  W.  584,  holding  negotiabil- 
ity of  note  destroyed  by  provision  for  payment  of  taxes  on  certain  real  estate; 
Brooke  v.  Struthers,  110  Mich.  576,  35  L.  R.  A.  543,  68  N.  W.  272,  holding  nego- 
tiability of  mortgage  note  destroyed  by  provision  in  mortgage  for  payment  of  all 
taxes  "upon  mortgage,"  where  mortgagee's  interest  therein  is  taxable;  Conrad 
Seipp  Brewing  Co.  v.  McKittrick,  86  Mich.  195,  48  N.  W.  1086,  holding  instru- 
ment admissible  in  evidence  in  support  of  common  counts,  in  spite  of  non-nego- 
tiability; Worden  Grocer  Co.  v.  Blanding,  161  Mich.  257,  126  N.  W.  212,  holding 
a  note  in  the  ordinary  form  of  a  negotiable  instrument  which  contains  a  pro- 
vision that  it  is  given,  subject  to  approval  of  the  payee,  for  a  stock  of  merchan- 
dise received  of  payee,  and  that  the  title  thereto  shall  remain  in  him  until  note 
is  paid,  is  a  non-negotiable  instrument;  Gilpin  v.  People's  Bank,  45  Ind.  App. 
54,  90  N.  E.  91,  holding  that  stipulation  in  note  that  partial  payments  shall  be 
considered  as  rental  for  property  sold  destroys  its  negotiability. 

Cited  in  footnotes  to  Adams  v.  Seaman,  7  L.  R.  A.  224,  and  Sylvester  Bleckley 
Co.  v.  Alewine,  37  L.  R.  A.  86,  which  hold  negotiability  of  note  destroyed  by 
stipulation  for  attorney's  fees;  Citizens'  Nat.  Bank  v.  Piollet,  4  L.  R.  A.  190, 
which  holds  negotiability  destroyed  by  agreement  for  renewal;  Dorsey  v.  Wolff, 
18  L.  R.  A.  428,  which  holds  negotiability  not  destroyed  by  stipulation  for  10 
per  cent  attorney's  fees;  Farmers  Nat.  Bank  v.  Sutton  Mfg.  Co.  17  L.  R.  A.  595, 
which  holds  negotiability  of  bill  of  exchange  not  defeated  by  stipulation  for  at- 
torney's fees,  becoming  operative  after  dishonor;  Montgomery  v.  Crosthwait,  12 
L.  R.  A.  140,  which  holds  negotiability  not  destroyed  by  stipulation  to  pay  all 
costs  of  collection;  Oppenheimer  v.  Farmers'  &  M.  Bank,  33  L.  R.  A.  767,  which 
hplds  negotiability  of  note  not  affected  by  stipulation  for  attorneys'  fees  inop- 
erative until  maturity  and  dishonor. 

Cited  in  notes  (8  L.  R.  A.  393)  on  negotiable  instruments  (7  L.  R.  A.  537) 
on  requisites  to  negotiability  of  promissory  note;  (7  L.  R.  A.  445)  on  stipula- 
tion in  note  for  attorneys'  fees;  (8  L.  R.  A.  394)  on  stipulations  and  agreements 
which  destroy  negotiability;  (3  L.  R.  A.  863)  on  admissibility  of  parol  evidence 
to  vary  or  contradict  commercial  paper;  (43  L.  R.  A.  279)  on  reservation  of 
title  to  property  as  affecting  negotiability  of  note  for  purchase  price;  (32  L.R.A 
(N.S.)  866)  on  recital  in  note  as  to  security  as  affecting  negotiability;  (23  Am. 
St.  Rep.  169;  125  Am.  St.  Rep.  195)  on  agreements  and  conditions  destroying 
negotiability. 
Validity  of  provision  for  attorney's  fees. 

Cited  in  Kittermaster  v.  Brossard,  105  Mich.  220,  55  Am.  St.  Rep.  437,  63 
N.  W.  75,  holding  stipulation  in  mortgage  for  attorneys'  fee  void  unless  ex- 
pressly sanctioned  by  statute;  Chestertown  Bank  v.  Walker,  90  C.  C.  A.  140, 
163  Fed.  511,  holding  under  the  law  of  Maryland,  a  contract  in  a  note  to  pay 
a  collection  fee,  if  note  is  not  paid  at  maturity  is  valid  to  extent  of  a  reasonable 
fee  actually  expended  or  contracted  to  be  paid,  but  no  further. 

Cited  in  footnotes  to  Levens  v.  Briggs,  14  L.  R.  A.  188,  which  holds  agreement 
for  a  specified  percentage,  if  note  collected  by  suit,  invalid;  Pattillo  v.  Alexander. 
29  L.  R.  A.  616,  which  sustains  payee's  guaranty  of  attorney's  fees  if  note  has 
to  be  collected  by  law;  Bank  of  Commerce  v.  Fuqua,  14  L.  R.  A.  588,  which  holds 
provision  in  note  for  attorney's  fees  valid,  but  reasonableness  of  same  for  court ; 
Dorsey  v.  Wolff,  18  L.  R.  A.  428,  which  holds  stipulation  in  note  for  10  per  cent 
attorney's  fees  not  usurious. 

3   L.   R.   A.    52,    SMITH   v.   SMITH,   73   Mich.    445,    16   Am.    St.   Rep.    594..    41 

N.  W.  499. 
Privileged  communications. 

Cited  in  Brewer  v.  Chase,  121  Mich.  536,  46  L.  R.  A.  402,  80  Am.  St.  Rep.  527, 


421  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  53 

80  N.  W.  579,  holding  privilege  under  given  circumstances  a  question  for  court; 
Shepherd  v.  Baer,  96  Md.  150,  53  Atl.  790,  holding  replies  to  libelous  statements 
privileged;  Flynn  v.  Boglarsky,  164  Mich.  518,  32  L.RA.(X.S.)  743,  129  N.  W. 
674,  holding  it  question  for  jury  whether  petition  charging  disorderly  conduct 
was  given  unnecessary  notoriety  so  as  to  take  away  its  privileged  character. 

Cited  in  footnotes  to  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged;  Hollenbeck  v.  Hall,  39 
L.  R.  A.  734,  which  holds  publication  that  trader  is  dishonest  in  pleading  statute 
of  limitations  not  libelous;  Sullivan  v.  Strahorn-Hutton-Evans  Commission  Co. 
47  L.  R.  A.  859,  which  holds  imputation  of  evil  motives,  and  dishonesty  in  letter 
complaining  of  nonpayment  of  debt  by  third  person  through  bank,  not  privileged. 

Cited  in     notes    (6  L.  R.  A.  363)    on  privileged  communications;    (9  L.  R.  A. 
621,   624)    on   what   constitutes   libel;    (12   L.R.A.(N.S.)    92)    on   inference,   from 
publication  alone,  of  malice  which  will  preclude  qualified  privilege;   (104  Am.  St. 
Rep.  118,  119,  147)  on  what  libelous  statements  are  privileged. 
Words  libelous  per  He. 

Cited  in  Morse  v.  Times-Republican  Printing  Co.  124  Iowa,  716,  100  N.  W.  867, 
holding  an  article  designed  and  calculated  to  exhibit  plaintiff  as  shallow,  ridicu- 
lous and  contemptible,  dishonest  and  undeserving  of  confidence,  is  libelous  per  se. 

Cited  in  notes  (116  Am.  St.  Rep.  804.  811)  on  what  words  are  libelous  per  se; 
(9  Eng.  Rul.  Cas.  15)  on  distinction  between  libel  and  slander. 

3  L.  R.  A.  53,  FLEMING  v.  GUTHRIE,  32  W.  Va.  1,  25  Am.  St.  Rep.  792,  9 

S.  E.  23. 
Jurisdiction  to  interfere  with  executive   functions. 

Cited  in  Mann  v.  County  Ct.  58  W.  Va.  656,  52  S.  E.  776,  holding  in  the 
absence  of  statute  courts  of  equity  have  no  power  to  control  by  injunction  or 
otherwise  public  officers  and  tribunals  in  the  exercise  of  purely  legislative  or  gov- 
ernmental functions;  State  ex  rel.  Rawlinson  v.  Ansel,  76  S.  C.  407,  57  S.  E.  185, 
11  A.  &  E.  Ann  Cas.  613,  holding  the  Supreme  Court  has  no  jurisdiction  by 
certiorari  to  require  the  governor  to  certify  to  it  the  record  on  which  his  act  in 
removing  the  dispensary  Commission  was  exercised  for  the  purpose  of  judicial  re- 
view, such  act  being  executive  and  not  judicial. 
Injunction  to  protect  political  rights. 

Cited  in  Alderson  v.  Kanawha  County,  32  W.  Va.  644,  5  L.  R.  A.  338,  25  Am. 
St.  Rep.  840,  9  S.  E.  868,  refusing  to  enjoin  board  of  canvassers  from  returning 
to  governor  result  of  election  to  Congress;  Morgan  v.  County  Court,  53  W.  Va. 
376,  44  S.  E.  182,  denying  injunction  to  restrain  holding  public  election. 

Cited  in  footnotes  to  Weaver  v.  Toney,  50  L.  R.  A.  105,  which  denies  right  to 
enforce  by  injunction  right  to  have  inspector  of  certain  party  at  polls;  Alderson 
v.  Kanawha  County  Court,  5  L.  R.  A.  334,  which  refuses  to  enjoin  certification 
to  governor  of  result  of  canvass  of  county  votes  for  congressman;  State  ex  rel. 
McCaffery  v.  Aloe,  47  L.  R.  A.  393,  which  denies  right  to  injunction  to  protect 
purely  political  right  of  citizen  as  voter. 

Cited  in  note  (42  Am.  St.  Rep.  236)  on  jurisdiction  of  equity  over  elections. 
When   writ  of  prohibition  or  mandamus  will  issue. 

Cited  in  Hartigan  v.  Board  of  Regents,  49  W.  Va.  17,  38  S.  E.  698.  holding 
writ  of  prohibition  will  not  lie  against  regents  of  univesity  to  prohibit  removal 
of  professor:  Wilkinson  v.  Hoke,  39  W.  Va.  406,  19  S.  E.  520;  holding  erroneous 
judgment  for  costs  might  be  prohibited. 

Cited  in  footnotes  to  People  ex  rel.  Nicoll  v.  New  York  Infant  Asylum,  10  L. 
R.  A.  381,  which  holds  mandamus  not  proper  remedy  to  restore  person  to  office; 
Hughes  v.  Recorder's  Court,  4  L.  R.  A.  863,  granting  prohibition  against  prosecu- 


3  L.R.A.  53]  L.  R.  A.  CASES  AS  AUTHORITIES.  422 

tion  for  violation  of  void  ordinance;  Knox  County  v.  Johnson,  7  L.  R.  A.  684, 
which  holds  mandamus  will  not  lie  to  compel  commissioners  to  approve  official 
bond  or  show  cause  for  not  doing  so;  Bullard  v.  Thorpe,  25  L.  R.  A.  605,  which 
grants  prohibition  against  splitting  actions  before  justice  into  amounts  too  small 
to  permit  appeal;  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188,  which  de- 
nies mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum :  Hangen 
v.  Albina  Light  &  Water  Co.  14  L.  R.  A.  424,  which  holds  mandamus  appropriate 
remedy  to  compel  supply  of  water;  People  ex  rel.  Daley  v.  Rice,  14  L.  R.  A.  644, 
which  authorizes  mandamus  to  compel  canvassing  board  to  disregard  illegal 
return;  Jackson  v.  State,  42  L.  R.  A.  792,  which  sustains  right  to  mandamus  to 
compel  reinstatement  of  pupil  whose  admission  arbitrarily  or  capriciously  re- 
fused; Port  Royal  Min.  Co.  v.  Hagood,  3  L.  R.  A.  841,  which  refuses  to  compel 
board  of  agriculture  by  mandamus  to  issue  license  to  mine  phosphate  rock;  GofT 
v.  Wilson,  3  L.  R.  A.  58,  which  refuses  mandamus  to  compel  turning  over  office 
of  governor;  State  ex  rel.  Scharnikow  v.  Hogan,  51  L.  R.  A.  958,  which  denies 
writ  of  prohibition  against  proceedings  not  of  judicial  character;  People  ex  rel. 
Corscadden  v.  Howe,  66  L.R.A.  664,  which  holds  that  mandamus  will  lie  to  compel 
payment  by  county  treasurer  of  salary  of  superintendent  of  county  penitentiary 
whom  commissioners  have  attempted  to  remove  from  office  under  invalid  statute 
during  time  he  retains  possession  of  the  office. 

Cited  in  notes   (58  L.  R.  A.  866)   on  original  jurisdiction  of  court  of  last  resort 
in  mandamus  cases;    (9  L.  R.  A.  60)  as  to  when  writ  of  prohibition  will  lie;    (11 
L.  R.  A.  763)   on  mandamus  to  control  executive  discretion;    (3  L.  R.  A.  316)   on 
right  of  judiciary  to  interfere  with  functions  of  executive. 
Power  of  governor  after  expiration  of  term. 

Cited  in  footnote  to  Carr  v.  Wilson,  3  L.  R.  A.  64,  which  upholds  governor's 
power  to  discharge  duties  of  office  after  end  of  term,  though  he  is  ineligible  to 
re-election. 

3  L.  R.  A.  58,  GOFF  v.  WILSON,  32  W.  Va.  393,  9  S.  E.  26. 
"When   mandamus   or   injunction   -will   issue. 

Cited  in  State  ex  rel.  Clark  v.  Long,  37  W.  Va.  270,  16  S.  E.  578,  holding  man- 
damus sufficient  in  form  which  is  entitled  in  name  of  relator  as  plaintiff,  against 
respondent  as  defendant;  Hartigan  v.  Board  of  Regents,  49  W.  Va.  17,  38  S.  E. 
698,  refusing  to  enjoin  board  of  canvassers  from  returning  to  governor  result  of 
election  to  Congress;  State  v.  Shumate,  48  W.  Va.  363,  37  S.  E.  618,  holding  that 
writ  of  error  lies  from  order  disbarring  attorney;  State  ex  rel.  Atty.  Gen.  v. 
Huston,  27  Okla.  612,  34  L.R.A.fX.S.)  385,  113  Pac.  190,  holding  that  district 
court  has  no  jurisdiction  to  control  even  ministerial  acts  of  governor;  Kline  v. 
McKelvey,  57  W:  Va.  30,  49  S.  E.  896,  holding  mandamus  will  lie  to  compel  the 
admission  or  restoration  to  office  of  the  party  having  a  clear  prima  facie  right 
thereto  shown  by  a  commission,  certificate,  or  other  legal  evidence  thereof. 

Cited  in  footnotes  to  Alderson  v.  Kanawha  County  Court,  5  L.  R.  A.  334.  which 
refuses  to  enjoin  certification  to  governor  of  result  of  canvass  of  county  votes  for 
congressman;  People  ex  rel.  IJeley  v.  Rice,  14  L.  R.  A.  644,  which  authorizes  man- 
damus to  compel  canvassing  board  to  disregard  illegal  return;  People  ex  rel. 
Corscadden  v.  Howe,  66  L.R.A.  664.  which  holds  that  mandamus  will  lie  to 
compel  payment  by  county  treasurer  of  salary  of  superintendent  of  county  peni- 
tentiary whom  commissioners  have  attempted  to  remove  from  office  under  in- 
valid statute  during  time  he  retains  possession  of  the  office. 

Cited  in  notes  (31  L.  R.  A.  344,  351,  367)  on  mandamus  to  control  surrender  of 
office;  (11  L.  R.  A.  763)  en  mandamus  to  control  executive  discretion;  (3  L.  R. 


423  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  69 

A.  316)  on  right  of  judiciary  to  interfc  j  with  fuLetions  of  executive;    (6  L.R.A. 
(X.S.)   771)   on  mandamus  to  governor. 
When    duties  of  office  may  be  assumed. 

Cited  in  Re  Moore,  4  Wyo.  114,  31  Pac.  980,  denying  right  of  governor  to  as- 
sume duties  of  office  before  votes  have  been  canvassed. 
Power    of    governor    after    end    of    term. 

Cited  in  footnote  to  Carr  v.  Wilson,  3  L.  R.  A.  64,  which  holds  governor  may 
discharge  duties  of  office  after  end  of  term. 
Jurisdiction  of  election  contests. 

Cited  in  McWhorter  v.  Dorr,  57  W.  Va.  610,  110  Am.  St.  Rep.  815,  50  S.  E. 
838,  holding  courts  have  no  power  when  the  jurisdiction  has  been  conferred 
upon  a  legislative  branch  of  government. 

3  L.  R.  A.  64,  CARR  v.  WILSON,  32  W.  Va.  419,  9  S.  E.  31. 

Right  of  officials  to  hold  over  until  successors  are  elected  or  appointed. 

Cited  in  btate  ex  rel.  Thayer  v.  Boyd,  31  Neb.  731,  48  N.  W.  739,  holding  that 
under  Nebraska  Constitution  governor  holds  over,  when  person  receiving  plurality 
of  votes  for  the  office  is  ineligible;  People  ex  rel.  Parsons  v.  Edwards,  93  Cal.  157, 
28  Pac.  831,  and  State  ex  rel.  Richardson  v.  Henderson,  4  Wyo.  553,  22  L.  R.  A. 
757,  35  Pac.  517,  holding,  where  incumbent  is  required  to  hold  over,  expiration  of 
term  of  office  not  a  vacancy,  unless  there  is  legally  elected  or  appointed  successor. 

Cited  in  footnotes  to  State,  Clifford,  Prosecutor,  v.  Heller,  57  L.  R.  A.  312, 
which  denies  right  of  president  of  senate  to  act,  after  resignation,  as  governor  in 
place  of  governor  resigning  office;   Goff  v.  Wilson,  3  L.  R.  A.  58,  which  refuses 
mandamus  to  compel  turning  over  office  to  governor. 
Succession  to  office  by  operation  of  law. 

Cited  in  People  ex  rel.  Parks  v.  Cornforth,  34  Colo.  113,  81  Pac.  871,  holding 
under  Constitution  the  president  pro  tern  of  the  Senate  did  not  become  de  jure 
Lieutenant  Governor,  upon  the  latter  becoming  Governor. 
Declaration  of  election. 

Cited  in  State  ex  rel.  Guinan  v.  Meder,  22  Nev.  272,  38  Pac.  668,  holding  no 
election  complete  under  statutes  until  after  proper  canvass  and  certification  of 
result;  Re  Moore,  4  Wyo.  114,  31  Pac.  980,  holding  assumption  of  duties  of  gov- 
ernor before  canvass,  and  declaration  of  result,  invalid. 

Cited  in  footnote  to  Alderson  v.  Kanawha  County  Court,  5  L.  R.  A.  334,  which 
refuses  to  enjoin  certification  to  governor  of  result  of  canvass  of  county  votes  for 
congressman. 
Function    of   executive. 

Cited  in  notes  (3  L.  R.  A.  316)  on  right  of  judiciary  to  interfere  with  func- 
tions of  executive;  (11  L.  R.  A.  763)  on  mandamus  to  control  executive 
discretion. 

3  L.  R.  A.  69,  ARXOTT  v.  STANDARD  ASSO.  57  Conn.  86,  17  Atl.  361. 
Libel. 

Cited  in  footnotes  to  Brewer  v.  Chase,  46  L.  R.  A.  397,  which  sustains  liability 
of  author  of  libelous  articles  stating  that  he  is  informed  that  certain  things  have 
occurred;  Morning  Journal  Asso.  v.  Rutherford,  16  L.  R.  A.  803,  which  authorizes 
punitive  damages  against  newspaper  reprinting  stories  of  elopement,  without 
inquiry  as  to  truth. 

Cited  in  notes  (9  LR.A.  621)  on  what  constitutes  libel;  (116  Am.  St.  Rep.  808) 
•on  what  words  are  libelous  per  se. 


3  L.R.A.  69]  L.  R.  A.  CASES  AS  AUTHORITIES.  424 

Privilege. 

Cited  in  footnote  to  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged. 
Good   faith   as   mitigating   damages. 

Cited  in  Rocky  Mountain  News  Printing  Co.  v.  Fridborn,  46  Colo.  451,  24  L.R.A. 
(N.S.)    895,  104  Pac.  956,  holding  good  faith  may  be  pleaded  in  mitigation  of 
damages. 
Right  to  testify  as  to  one's   intent. 

Cited  in  note  (23  L.R.A.(N.S.)   392)   on  right  of  one  to  testify  as  to  his  intent. 

3  L.  R.  A.  71,  ALEXANDER  v.  WESTERN  U.  TELEG.  CO.  66  Miss.  161,  14  Anu 
St.  R«p.  556,  5  So.  397. 

Report  of  decision  on  appeal  after  trial,  in  67  Miss.  386,  7  So.  280. 
Sufficiency    of    complaint    stating    nominal    damages,    on    demurrer. 

Cited  in  Stafford  v.  Western  U.  Teleg.  Co.  73  Fed.  275,  holding  complaint 
stating  cause  of  action  for  nominal  damages  and  penalty  should  not  be  dismissed. 
Damages  for  failure  properly  to  transmit  or  deliver  message. 

Cited  in  Western  U.  Teleg.  Co.  v.  Carter,  156  Ind.  532,  60  N.  E.  305,  holding 
telegraph  company  not  liable  for  penalty  under  laws  of  sender's  state,  for  failure 
properly  to  deliver  outside  of  state;  Marshall  v.  Western  U.  Teleg.  Co.  79  Miss. 
161,  89  Am.  St.  Rep.  585,  27  So.  614,  denying  damages  for  delay  in  transmitting 
telegram;  Shaw  v.  Postal  Teleg.  &  Cable  Co.  79  Miss.  691,  56  L.  R.  A.  491,  80  Am. 
St.  Rep.  666,  31  So.  222,  denying  damages  for  erroneous  transmission  of  telegram 
where  state  from  which  it  is  sent  allows  none;  Postal  Teleg.  &  Cable  Co.  v.  Wells, 
82  Miss.  740,  31  So.  190,  sustaining  recovery  for  mistakes  in  transmission  of 
message  from  another  state. 

Cited  in  footnotes  to  Western  U.  Teleg.  Co  v.  Short,  9  L.R.A.  744,  which 
holds  company  prima  facie  liable  for  failure  to  deliver  telegram;  Western  U. 
Teleg.  Co.  v.  Nye  &  S.  Grain  Co.  63  L.R.A.  803,  which  holds  difference  in  value 
between  market  value  of  corn  and  the  price  at  which  it  could  have  been  sold 
the  measure  of  damages  for  negligent  delay  of  telegram;  Hays  v.  Western  U. 
Teleg.  Co.  67  L.R.A.  481,  which  holds  that  change  in  telegram  so  as  to  quote  price 
of  mules  at  ten  dollars  per  head  less  than  market  price  resulting  in  sendee's 
ordering  purchase  of  designated  number,  renders  telegraph  company  liable  for 
difference  between  price  paid  and  that  stated  in  telegram. 

Cited  in  notes  (117  Am  St.  Rep.  292)  on  elements  of  damages  recoverable  for 
failure  to  transmit  and  deliver  telegrams;  (12  L.R.A.(N.S.)  749)  on  contingencies 
in  possible  action  of  sendee  or  third  person,  as  affecting  liability  for  failure  prop- 
erly to  transmit  and  deliver  telegram. 

Distinguished  in  Western  U.  Teleg.  Co.  v.  Adams  Mach.  Co.  92  Miss.  855.  47 
So.  412,  holding  that  profits  if  sendee  of  telegram  had  accepted  proposition  in 
telegram  not  delivered  are  not  recoverable. 
Measure   of   damages. 

Cited  in  footnotes  to  Fererro  v.  Western  U.  Teleg.  Co.  35  L.  R.  A.  548,  which 
limits  damage  for  mistake  in  telegram  as  to  price  in  offer  to  sell  goods  to  dif- 
ference in  prices;  McPeek  v.  Western  U.  Teleg.  Co.  43  L.  R.  A.  214,  which  holds 
loss  of  reward  offered  for  capture  of  criminal  within  damages  recoverable  for 
failure  to  deliver  telegram :  Western  U.  Teleg.  Co.  v.  North  Packing  &  Provision 
Co.  52  L.  R.  A.  274,  which  holds  agent  induced  to  purchase  live  stock  through 
delay  in  delivering  telegram,  not  required  to  resell  before  communicating  with 
principal,  to  reduce  damages. 

Cited  in  note    (10  L.  R.  A.  515)    on  liability  for  neglect  to  deliver  telegram. 


4--5  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  74 

Distinguished  in  Western  U.  Teleg.  Co.  v.  Adams  Mach.  Co.  92  Miss.  855,  47 
So.  412.  holding  where  an  agent  of  a  manufacturer  able  to  sell  goods  to  a  buyer 
provided  delivery  within  thirty  days  would  be  guaranteed,  sent  a  telegram  to 
manufacturer  asking  whether  he  would  guarantee  shipment  within  thirty  days, 
and  the  telegraph  company  failed  to  deliver  the  message,  the  company  was  not 
liable  to  the  manufacturer  for  the  profits  which  it  would  have  made  if  the  con- 
tract had  been  closed. 

Disapproved  in  Hughes  v.  Western  U.  Teleg.  Co.  79  Mo.  App.  139,  and  West- 
ern  U.   Teleg.   Co.  v.   Wilson,   32  Fla.  534,  22  L.  R.   A.  437,   37   Am.   St.  Rep. 
125,    14    So.    1,   holding   telegraph   company,   for   breach   of   contract   to   deliver 
cipher  message,  only  liable  for  nominal  damages  or  price  of  message. 
Statute   pennlyzingr   negrligence   in    transmission    of  message. 

Cited  in  Hilley  v.  Western  U.  Teleg.  Co.  85  Miss.  70,  37  So.  556,  as  to  whether 
statute   penalizing   incorrect   transmission   was   an   interference    with   interstate 
commerce. 
Telegram   statutes  as  interference  Yrith   interstate   commerce. 

Cited  in  Hilley  v.  Western  U.  Teleg.  Co.  85  Miss.  70,  37  So.  556,  on  statute 
imposing  penalty  for  transmitting  message  incorrectly  as  interference  with  inter- 
state commerce. 

3  L.  R.  A.  74,  KELLY  v.  MANHATTAN  R.  CO.  112  N.  Y.  443,  20  N.  E.  383. 
Care  required  of  carrier  to  prevent   injury  to  passengers. 

Cited  in  Barnes  v.  New  York  C.  &  H.  R.  R.  Co.  42  Misc.  625,  87  N.  Y.  Supp. 
608,  holding  company  liable  for  injuries  to  passenger  from  slipping  on  oil  on 
platform  of  passenger  station;  Jensen  v.  Hamburg- American  Packet  Co.  23 
App.  Div.  167,  48  N.  Y.  Supp.  630,  holding  rule  requiring  carrier  to  use  high- 
est care  only  pertains  to  appliances  and  machinery;  Smith  v.  Kingston  City  R. 
Co.  55  App.  Div.  144,  67  N.  Y.  Supp.  185,  holding  carrier  not  liable  merely 
for  injury  due  to  catching  of  dress  on  plunger,  no  better  or  safer  cars  being 
made  by  builders;  Loveless  v.  Manhattan  R.  Co.  25  Jones  &  S.  4,  5  N.  Y. 
Supp.  185,  holding  refusal  to  dismiss  complaint  in  action  for  servant's  neg- 
ligence proper;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Shields,  9  Tex.  Civ.  App.  656,  28  S. 
W.  709,  holding  unrestricted  instruction  that  carrier  is  bound  to  use  highest 
degree  of  care  and  diligence  to  protect  passengers  erroneous;  McKeon  v.  Chicago, 
M.  &  St.  P.  R.  Co.  94  Wis.  485,  35  L.  R.  A.  257,  59  Am.  St.  Rep.  909,  69  N.  W. 
175,  holding  erroneous  instruction  as  to  degree  of  care  required  of  carrier 
harmless,  where  proof  showed'  entire  absence  of  care;  Conroy  v.  Chicago,  St.  P. 
M.  &  O.  R.  Co.  96  Wis.  256,  38  L.  R.  A.  423,  70  N.  W.  486,  holding  carrier 
bound  to  use  only  ordinary  care  to  protect  passenger  alighting  from  car  to 
watch  fire;  Dotson  v.  Erie  R.  Co.  68  N.  J.  L.  684,  54  Atl.  827,  denying 
company's  liability  for  injury  to  one  who  ventured  too  near  edge  of  platform 
and  was  hit  by  engine;  Foster  v.  Old  Colony  Street  R.  Co.  182  Mass.  380,  65 
N.  E.  795,  sustaining  recovery  for  injuries  to  aged  passenger  who  slipped  on 
icy  step  of  car;  Texas  Midland  R.  Co.  v.  Frey,  25  Tex.  Civ.  App.  388,  61  S.  W. 
442,  denying  recovery  to  passenger  who  fell  because  no  box  provided  for  those 
alighting  from  train;  Fillingham  v.  St.  Louis  Transit  Co.  102  Mo.  App.  582 
77  S.  W.  314,  holding  carrier  liable  for  failure  to  let  passenger  off  at  landing 
place. 

Cited   in  notes    (8  L.  R.  A.   174)    on  damages  for  personal   injuries; 
R.  A.  721)   on  duty  of  railroad  company  toward  strangers  and  licensees. 

Distinguished  in*Miller  v.  Ocean  S.  S.  Co.  118  N.  Y.  211,  23  N.  E.  462,  hold- 
ing admissible,  evidence  of  failure  to  give  warning  of  ilang.-r   that   might 
been  apprehended;   Palmer  v.  Delaware  &  H.  Canal  Co.   120  X.  \.   177.   17  Am. 


I 


3  L.R.A.  74]  L.  R.  A.  CASES  AS  AUTHORITIES.  426 

St.   Rep.   629,   24  N.   E.   302,   holding   that   latent   defect,   to   relieve   carrier   of 
liability,   must  be  one  discoverable  by  no  reasonable   degree  of   skill   and   fore- 
sight. 
As    to    stations,    platforms,    car    steps,    and    approaches. 

Cited  in  Hiatt  v.  Des  Moines,  N.  &  W.  R.  Co.  96  Iowa,  174,  64  N.  W.  766  ; 
Chicago  &  G.  T.  R.  Co.  v.  Stewart  77  111.  App.  70;  Falls  v.  San  Francisco 
&  X.  P.  R.  Co.  97  Cal.  120,  31  Pac.  901,  —  holding  carrier  bound  simply  to 
exercise  ordinary  care  as  to  condition  of  passenger  station;  St.  Louis,  I.  M. 
&  S.  R.  Co.  v.  Barnett,  65  Ark.  258,  45  S.  W.  550,  upholding  instruction  that  it 
was  carrier's  duty  to  keep  station  platforms  safe,  in  absence  of  objection  r 
Sargent  v.  St.  Louis  &  S.  F.  R.  Co.  114  Mo.  355,  19  L.  R.  £..  461,  21  S.  W. 
823,  holding  carrier  must  light  station  platforms  sufficiently  to  guide  steps 
of  passengers  using  ordinary  care;  Illinois  C.  R.  Co.  v.  Davidson,  22  C.  C. 
A.  312,  46  U.  S.  App.  300,  76  Fed.  523,  holding  carrier  bound  by  rule  of  supreme 
diligence  in  constructing  platforms,  to  protect  passengers  from  moving  trains; 
Robertson  v.  Wabash  R.  Co.  152  Mo.  393,  53  S.  W.  1082,  holding  instruction, 
in  effect  for  recovery  if  depot  platform  was  in  unsafe  condition  and  out  of  re- 
pair, erroneous;  Rusk  v.  Manhattan  R.  Co.  46  App.  Div.  103,  61  N.  Y.  Supp. 
384,  holding  passenger,  slipping  on  ice  on  stairway,  not  showing  how  long  it 
had  remained  there,  cannot  recover;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Al- 
dridge,  27  Ind.  App.  500,  61  N.  E.  741,  holding  carrier  not  responsible  for  in- 
jury produced  by  ice  and  snow  on  car  step,  without  reasonable  opportunity  to 
remove;  Proud  v.  Philadelphia  &  R.  R.  Co.  64  N.  J.  L.  707,  50  L.  R.  A.  470,  46 
Atl.  710.  holding  carrier  not  bound  to  know  at  each  moment  the  condition  of 
every  part  of  the  train;  Norfolk  &  W.  R.  Co.  v.  Hawkes,  102  Va.  457,  46  S.  E.  471, 
as  to  duty  of  railroad  company  in  construction  of  platform;  Riley  v.  Rhode  Island 
Co.  29  R.  I.  ,145,  15  L.R.A.(N.S.)  524,  69  Atl.  338,  17  A.  &  E.  Ann.  Cas.  50; 
Fitch  v.  Central  R.  Co.  74  N.  J.  L.  136,  64  Atl.  992, — holding  railroad  company 
not  negligent  because  there  is  ice  on  its  platform  provided  it  did  not  allow  an 
unreasonable  length  of  time  to  elapse  before  cleaning  the  same;  Pittsburgh,  C. 
C.  &  St.  L.  R.  Co.  v.  Rose,  40  Ind.  App.  253,  79  N.  E.  1094,  holding  railroad  com- 
pany not  liable  for  injuries  caused  by  passenger  slipping  on  banana  peel  on  car 
step  when  peel  was  not  on  step  five  minutes  before  train  left  last  station;  Rear- 
den  v.  St.  Louis  &  S.  F  R.  Co.  215  Mo.  133,  114  S.  W.  961,  holding  if  it  was 
dangerous  for  a  passenger  to  alight  from  the  front  platform  of  a  coach  and  the 
conductor  was  at  that  platform  his  failure  to  give  warning  thereof  to  an  alight- 
ing passenger  was  negligence;  McCarty  v.  St.  Louis  &  S.  R.  Co.  105  Mo.  App. 
604,  80  S.  W.  7,  holding  a  street  car  company  is  under  obligation  to  a  person  who 
attempts  to  board  a  car  at  an  unusual  place  without  knowledge  of  the  carmen 
to  use  ordinary  care  to  keep  the  handrail  used  by  passengers  in  boarding  and 
alighting  in  proper  repair;  Buck  v.  Manhattan  R.  Co.  15  Daly,  552,  10  N.  Y.  Supp. 
107;  McCormack  v.  Sydney  &  G  B.  R.  Co.  37  N.  S.  256,— holding  electric  rail- 
way company  not  liable  for  slippery  condition  of  car  steps  during  storm;  Pere 
Marquette  R.  Co.  v.  Strange,  171  Ind.  167,  20  L.R.A.(N.S-)  1048,  84  N.  E.  819,. 
holding  a  railroad  company  owes  to  a  passenger  approaching  a  train  which  he 
intends  to  board  the  duty  of  exercising  only  reasonable  care  for  his  protection ; 
Fremont,  E.  &  M.  Valley  R.  Co.  v.  Hagblad,  72  Neb.  781,  4  L.R.A  (N.S.)  257,  101 
N.  W.  1033,  9  A.  &  E.  Ann.  Cas.  1096,  holding  a  railroad  company  owes  only 
ordinary  care  to  persons  impliedly  invited  upon  its  platform  who  are  not  passen- 
gers. 

Cited  in  footnotes  to  White  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  7  L.  R.  A. 
44.  which  holds  knowledge  of  unsafe  condition  of  station  platform  not  prevent 
recovery;  Redigan  v.  Boston  &  M.  R.  Co.  14  L.  R.  A.  276,  which  denies  recov- 


427  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  78 

ery  to  licensee  falling  through  open  trapdoor  in  station  platform;  Sargent  v. 
St.  Louis  &  S.  F.  R.  Co.  19  L.  R.  A.  460,  which  holds  carrier  not  required  to 
have  gas  or  electric  lights  on  station  platform;  Jordan  v.  New  York,  N.  H.  & 
H.  R.  Co.  32  L.  R.  A.  101,  which  holds  carrier  liable  for  dangerous  hole  in  floor 
of  unlighted  toilet  room  in  depot;  Herrman  v.  Great  Northern  R.  Co.  57  L.  R, 
A.  390,  which  holds  railroad  company  liable  for  injury  to  passenger  from  un- 
safe condition  of  depot  premises  leased  of  union  depot  company  or  its  receiver. 

Cited  in  notes  (6  L.  R.  A.  193)  on  carrier's  duty  to  keep  platforms  and  ap- 
proaches in  safe  condition;  (7  L.  R.  A.  Ill)  on  carrier's  duty  to  furnish  safe 
stations  and  platforms  for  use  of  passenger;  (16  L.  R.  A.  593)  on  duty  of  car- 
rier to  maintain  safe  approaches  beyond  its  own  premises;  (20  L.  R.  A.  522) 
on  measure  of  care  which  carrier  must  exercise  to  keep  platforms  and  ap- 
proaches safe ;  ( 20  L.  R.  A.  527 )  as  to  whom  railroads  owe  duty  to  keep  sta- 
tion platforms  safe;  (32  L.R.A. (N.S.)  883)  on  duty  of  street  railway  as  to  con- 
dition of  approaches  to  cars;  (33  LR.A.(N.S.)  865)  on  degree  of  care  toward 
passenger  at  station;  (42  L.  ed.  U.  S.  493)  on  duty  to  protect  and  contributory 
negligence  of  persons  about  to  take  train. 

Distinguished  in  Oilman  v.  Boston  &  M.  R.  Co.  168  Mass.  455,  47  N.  E.  193, 
holding  jury  warranted  in  finding  carrier  negligent  in  not  clearing  car  step  of 
ice  on  which  passenger  slipped  and  was  injured;  McGuire  v.  Interborough  Rapid 
Transit  Co.  104  App.  Div.  107,  93  N.  Y.  Supp.  316,  holding  under  facts  in  case 
defendant  was  guilty  of  negligence  in  failing  to  keep  its  platform  clear  of  ice. 
As  to  passenger  elevators. 

Cited   in   McGrell   v.   Buffalo  Office   Bldg.  Co.   153  N.   Y.  271,  47   N.  E.   305, 
holding  owner  only  bound  to  use  reasonable  care  as  to  surroundings  and  other 
structures  of  passenger  elevator  plant. 
Of  carriers  by  -water. 

Cited  in  Bruswitz  v.  Netherlands  American  Steam  Nav.  Co.  64  Hun,  266,  19  N. 
Y.  Supp.  75,  holding  steamship  company  not  liable  for  injury  to  passenger  trip- 
ping in  socket  in  floor,  in  rolling  sea;  Skottowe  v.  Oregon  Short  Line  &  U.  N.  R. 
Co.  22  Or.  446,  16  L.  R.  A.  598,  30  Pac.  222,  holding  that  fact  that  elevated  walk 
to  boat  landing  Avas  on  unopened  public  street  does  not  relieve  carrier  from 
liability;  Ganguzza  v.  Anchor  Line,  97  App.  Div.  354,  89  N.  Y.  Supp.  1049, 
holding  owner  of  vessel  only  owed  reasonable  care  to  passenger  injured  while 
standing  in  a  doorway  opening  upon  a  hoistway  in  a  vessel,  through  the  break- 
ing of  a  rope  used  in  such  hoistway. 
As  to  freight  platforms. 

Cited  in  Gunderman  v.  Missouri,  K.  &  T.  R.  Co.  58  Mo.  App.  381,  holding  car- 
rier owes  no  duty  to  passenger  to  keep  freight  platforms  in  safe  condition. 

3  L.  R.  A.  78,  REIN  v.  CLAYTON,  37  Fed.  354. 

Use   of   patented   article   before   issue   of   patent. 

Cited  in  Brill  v.  St.  Louis  Car  Co.  80  Fed.  910,  holding  inventor  has  no  right 
to  injunction  against  infringer  pending  decision  on  application  for  patent;  Ball 
&  Socket  Fastener  Co.  v.  Cohn,  90  Fed.  G65,  holding  inventor  cannot  recover  for 
infringement  before  granting  of  patent;  Kirk  v.  United  States,  163  U.  S.  55,  41 
L.  ed.  69,  16  Sup.  Ct.  Rep.  911,  holding  suit  cannot  be  maintained  for  use  of  pat- 
ented article  before  patent,  by  person  not  inventor;  D.  M.  Steward  Mfg.  Co.  v. 
Steward,  109  Tenn.  302,  70  S.  W.  808,  holding  damages  not  recoverable  for  use  of 
article  before  issuance  of  patent;  Avery  v.  J.  I.  Case  Plow  Works,  163  Fed.  843, 
as  to  damages  not  being  recoverable  for  infringement  of  patent  before  issue. 


3  L.R.A.  80]  L.  R.  A.  CASES  AS  AUTHORITIES.  428 

3  L.  R.  A.  80,  LOUISVILLE  &  N.  R.  CO.  v.  LOGAN,  88  Ky.  232,  21  Am.  St.  Rep. 

332,   10   S.  W.   655. 
Liability  of  carrier   for  injury  to  ejected   passenger. 

Cited  in  Chesapeake  &  O.  R.  Co.  v.  Saulsberry,  112  Ky.  921,  56  L.  R.  A.  582, 
66  S.  W.  1051,  holding  railroad  company  not  liable  for  injury  to  intoxicated 
person  attempting  to  board  one  train  after  being  ejected  from  another;  Fagg  v. 
Louisville  &  N.  R.  Co.  Ill  Ky.  35,  54  L.  R.  A.  921,  63  S.  W.  580,  holding  rail- 
road company  liable  for  ejecting  helplessly  intoxicated  person  boarding  car  at 
cut,  when  officials  knew  another  train  was  following  closely;  Louisville  &  N.  R. 
Co.  v.  Ellis,  97  Ky.  339,  30  S.  W.  979,  holding  railroad  company  liable  for 
ejecting  at  night  helplessly  intoxicated,  but  inoffiensive,  person  at  dangerous 
point  between  stations;  Chesapeake  &  0.  R.  Co.  v.  Crank,  128  Ky.  333,  16  L.R.A. 
(N.S.)  198,  108  S.  W.  276,  holding  statute  did  not  authorize  a  conductor  to  put 
off  a  sick  passenger  vomiting  or  otherwise  doing  things  a  well-behaved  passenger 
in  good  health  would  not  do,  but  only  applied  to  persons  who  voluntarily  or 
while  under  the  influence  of  liquor  act  in  a  boisterous,  indecent  or  disgusting 
manner,  to  the  annoyance  of  other  passengers;  Louisville,  H.  &  St.  L.  R.  Co. 
v.  Gregory,  141  Ky.  765,  35  LR.A.(N.S.)  325,  133  S.  W.  805,  holding  railroad  not 
liable,  where  partially  intoxicated  passenger  fell  off  the  platform  after  bei:ig 
directed  to  go  back  into  car  on  train  stopping  before  reaching  station. 

Cited  in  footnotes  to  Bageard  v.  Consolidated  Traction  Co.  49  L.  R.  A.  424, 
which  denies  carrier's  liability  for  injury  to  sick  passenger,  supposed  to  be  in- 
toxicated, while  going  towards  back  of  station,  after  being  helped  to  front  where 
way  open  to  street;  Fisher  v.  West  Virginia  &  P.  R.  Co.  23  L.  R.  A.  758;  which 
holds  carrier  not  liable  for  injury  to  drunken  passenger  coming  down  car  steps 
without  conductor's  knowledge,  and  falling  off;  Paddock  v.  Atchison,  T.  &  S.  F. 
R.  Co.  4  L.  R.  A.  231,  which  upholds  carrier's  right  to  remove  passenger  appar- 
ently broken  out  with  smallpox;  North  Chicago  City  R.  Co.  v.  Gastka,  4  L.  R.  A. 
481,  which  holds  carrier  liable  for  conductor's  lack  of  care  in  ejecting  passenger 
for  nonpayment  of  fare. 

Cited  in  notes  (19  L.  R.  A.  327)  on  exposure  of  drunken  passenger  to  danger 
by  ejection  from  train;  (5  L.  R.  A.  820)  on  right  to  expel  passenger  from  train; 
(11  L.R.A.  432)  on  ejection  of  passenger  from  train;  (12  L.R.A.(N.S.)  360)  on 
negligence  of  passenger  ejected  from  train,  in  walking  on  track. 

3  L.  R.  A.  83,  SAN  DIEGO  LAND  &  TOWN  CO.  v.  NEALE,  78  Cal.  63,  20  Pac. 
372. 

Second  appeal  as  to  value  of  land  condemned,  in  88  Cal.  55,  11  L.  R.  A.  604,  25 
Pac.  977. 
Valne  of  land  taken  by  public. 

Cited  in  Los  Angeles  v.  Pomeroy,  124  Cal.  644,  57  Pac.  585,  holding  that  in  con- 
demnation proceedings  actual  value  after  summons  issued  may  be  shown;  Re 
Gilroy,  85  Hun,  427,  32  N.  Y.  Supp.  891,  holding  availability  of  water  supply  of 
city  property  an  element  in  compensation  for  taking  it;  Re  Brookfield,  78  App. 
Div.  526,  81  N.  Y.  Supp.  10  (dissenting  opinion),  majority  holding  owner  of  bed 
of  pond  entitled  to  nominal  consideration  only;  Hollister  v.  State,  9  Idaho.  16, 
71  Pac.  541;  Madera  R.  Co.  v.  Raymond  Granite  Co.  3  Cal.  App.  687,  87  Pac  27.— 
as  to  the  measure  of  damages;  United  States  v.  Honolulu  Plantation  Co.  58  C. 
C.  A.  279,  122  Fed.  585;  Guyandot  Valley  R.  Co.  v.  Burkirk,  57  W.  Va.  426,  110 
Am.  St.  Rep.  785,  50  S.  E.  521, — holding  market  value  measure  of  damages;  Sac- 
ramento Southern  R.  Co.  v.  Heilbron,  156  Cal.  410,  104  Pac  979,  holding  the 
measure  of  damages  for  land  taken  by  condemnation  is  its  market  value  in  view 
of  all  the  purposes  to  which  it  is  adapted,  and  while  evidence  that  it  is  "valuable" 


4-9  L.  R.  A.  CASES  AS  AUTHORITIES. 


429 


for  particular  purposes  is  admissible,  its  money  value  for  any  particular  purpose 
cannot  be  shown  in  determining  its  market  value;  Seattle  &  M.  R.  Co.  v.  Mur- 
phine,  4  Wash.  457,  30  Pac.  720,  holding  jury  may  consider  how  much  the  necessity 
of  fencing  or  of  constructing  a  crossing  will  detract  from  the  value  of  the  abutting 
land,  but  the  cost  of  building  fences  and  constructing  the  crossings  cannot  be 
recovered  as  distinct  items  of  damage;  Brown  v.  W.  T.  Weaver  Power  Co.  140 
X.  C.  345,  3  L.R.A.(X.S.)  917,  52  S.  E.  954,  holding  where  land  is  damaged  by 
the  exercise  of  the  power  of  eminent  domain  in  the  erection  of  a  dam,  the  true 
measure  of  damages  is  the  difference  in  the  value  of  the  land  just  after  the 
erection  of  the  dam  and  its  value  in  its  proper  condition. 

Cited  in  footnotes  to  Schroeder  v.  Joliet,  52  L.  R.  A.  G34,  which  authorizes  con- 
sideration of  benefit  from  improvement  in  assessing  damages  to  abutting  owner 
from  cutting  down  street;  Beveridge  v.  Lewis,  59  L.  R.  A.  581,  which  denies 
right  to  deduct  benefits  from  damages,  in  exercise  of  eminent  domain  by  individ- 
ual ;  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  14  L.  R.  A.  533,  which  denies 
right  to  include  value  of  railroad  track  constructed  by  company  entering  with- 
out owner's  consent,  in  estimating  owner's  damages;  Philadelphia  Ball  Club  v. 
Philadelphia,  46  L.  R.  A.  724,  which  requires  damages  from  taking  of  property  in 
eminent  domain  estimated  as  of  the  time  when  injury  done,  without  considering 
future  profits  of  business  or  subsequent  change  of  circumstances. 

Cited  in  notes  (7  L.  R.  A.  289)  on  consideration  of  benefits  on  assessment  to 
abutting  owner  of  damages  by  elevated  railroad;  (8  L.  R.  A.  330)  on  measure  of 
damages  for  land  condemned  for  railroad  purposes;  (11  L.  R.  A.  604)  on  market 
price  as  element  of  damages  in  condemnation  proceedings;  (7  L.  R.  A.  409)  on 
compensation  for  land  taken  for  railroad  purposes;  (3  L.R.A.(X.S.)  913)  on  right 
to  consider  value  as  part  of  a  natural  water  power,  in  fixing  compensation  on 
condemnation;  (11  L.R.A.(X.S.)  996)  on  special  value  of  property  for  purpose  as 
element  of  compensation  on  condemnation;  (19  Am.  St.  Rep.  459)  on  measure  of 
compensation  on  condemnation  of  right  of  way  for  railroad;  (19  Am.  St.  Rep 
460)  on  effect  of  benefits  accruing  to  landowner;  (22  Am.  St.  Rep.  49)  on  com- 
pensation on  eminent  domain;  (85  Am.  St.  Rep.  298)  on  adaptability  of  property 
taken  for  special  purpose. 
Expert  evidence. 

Cited  in  People  v.  Hill,   123  Cal.  51,  55  Pac.  692,  holding  expert  evidence  of 
intoxication  within  short  time  of  homicide  competent. 
Evidence   as   to   value    of   land   condemned. 

Cited  in  Muller  v.  Southern  P.  Branch  R.  Co.  83  Cal.  245,  23  Pac.  265,  holding 
evidence  as  to  value  of  land  not  taken,  if  railroad  had  not  been  built,  incompe- 
tent ;  Spring  Valley  Waterworks  v.  Drinkhouse,  92  Cal.  533,  28  Pac.  681,  holding 
question,  "Do  you  know  value  of  that  land  for  reservoir  purposes?"  admissible; 
Santa  Ana  v.  Harlin,  99  Cal.  543,  34  Pac.  224,  holding  question,  "For  what  pur- 
pose could  this  property  be  used  properly?"  inadmissible;  Ranck  v.  Cedar  Rapids, 
134  Iowa.  573,  111  X.  W.  1027,  holding  evidence  of  value  of  land  for  special  use 
admissible;  Re  East  Galer  Street,  47  Wash.  605,  92  Pac.  423,  holding  in  proceed- 
ings to  condemn  a  strip  of  land  1  foot  in  width  and  394  feet  in  length  lying 
between  a  public  street  and  unplatted  lands  owned  by  persona  other  than  the 
owner  of  the  strip  the  jury  in  assessing  the  value  of  such  land  should  though 
the  strip  be  of  no  value  in  use  to  the  owner,  take  into  consideration  the  situa- 
tion of  the  strip,  its  relation  to  the  adjoining  tract,  etc.;  Central  P.  R.  Co.  v.  Feld- 
man,  152  Cal.  309,  92  Pac  849,  holding  where  a  witness  testified  as  an  expert  aa 
to  value  of  property  sought  to  be  condemned  he  was  properly  cross-examined 
regarding  the  appraisement  of  the  property  in  probate  proceedings  in  connection 
•with  the  estate  of  a  former  owner  to  test  the  value  of  his  opinion. 


1 


3  L.R.A.  83}  L.  R.  A.  CASES  AS  AUTHORITIES.  430 

Cited  in  note  (124  Am.  St.  Rep.  537)  on  evidence  of  special  value  of  property 
taken  for  public  use. 

Disapproved  in  Alloway  v.  Nashville,  88  Tenn.  518,  8  L.R.A.  126,  13  S.  W.  123, 
holding  in  condemnation  proceedings  by  city  to  obtain  a  reservoir  site,  it  is  proper 
to  reject  evidence  as  to  its  particular  value  as  a  reservoir  site. 
N  r  »s    trial  on  single  issue. 

Cited  in  Mountain  Tunnel  Gravel  Min.  Co.  v.  Bryan,  111  Cal.  38,  43  Pac.  410, 
and  Duff  v.  Duff,  101  Cal.  4,  35  Pac.  437,  sustaining  party's  right  to  move  for  new 
trial  upon  single  issue;  Ramsdell  v.  Clark,  20  Mont.  106,  49  Pac.  591,  holding  the- 
same;  Robinson  v.  Muir,  151  Cal.  125,  90  Pac.  521,  holding  party  may  move  for 
new  trial  as  to  part  of  the  issues. 

Final   judgment. 

Cited  in  Arnold  v.  Sinclair,  11  Mont.  567,  28  Am.  St.  Rep.  489,  29  Pac.  340,  as 
to  what  constitutes. 

3  L.  R.  A.  90,  UNION  MUT.  L.  INS.  CO.  v.  UNION  MILLS  PLASTER  CO.  37 

Fed.  286. 
Appointment  of  receiver  in  foreclosure. 

Cited  in  Merritt  v.  Gibson,  129  Ind.  179,  15  L.  R.  A.  285,  27  N.  E.  136,  holding 
mortgagee,  purchaser  at  foreclosure  sale,  entitled  to  appointment  of  receiver  of 
rents  and  profits  till  expiration  of  redemption  year;  American  Nat.  Bank  v. 
Northwestern  Mut.  L.  Ins.  Co.  32  C.  C.  A.  277,  60  U.  S.  App.  693,  89  Fed.  612, 
holding  receiver  properly  appointed  'pending  foreclosure,  when  mortgagor  insol- 
vent and  property  not  cared  for;  Norfor  v.  Busby,  19  Wash.  454,  53  Pac.  715, 
holding  receiver  of  rents  and  profits  of  land  pending  foreclosure  cannot  be  ap- 
pointed; Marshall  &  I.  Bank  v.  Cady,  75  Minn.  245,  77  N.  W.  831  (dissenting 
opinion),  as  to  right  to  appoint  temporary  receiver  in  foreclosure  to  prevent 
waste;  Vila  v.  Grand  Island  Electric  Light,  Ice  &  C.  S.  Co.  68  Neb.  240,  63  L.R.A. 
791,  110  Am.  St.  Rep.  400,  97  N.  W.  613,  4  A  &  E.  Ann.  Gas.  59,  denying  appoint- 
ment of  receiver  of  corporation  in  independent  action;  Slover  v.  Coal  Creek  Coal 
Co.  113  Tenn.  431.  68  L.R.A.  855,  106  Am.  St.  Rep.  851,  82  S.  W.  1131,  holding 
appointment  of  receiver  merely  auxiliary  to  pending  litigation. 

Cited  in  notes  (20  L.R.A.  210)  on  power  to  appoint  receivers  of  corporations 
where  no  other  relief  is  asked;  (7  L.R.A. (N.S.)  1006)  on  power  of  equity  where 
mortgage  does  not  convey  title,  to  impound  rents  and  profits  pending  foreclosure; 
{72  Am.  St.  Rep.  39,  77)  as  to  when  appointment  of  receiver  is  proper. 

Effect  of  tender. 

Cited  in  Malone  v.  Wright,  90  Tex.  57,  36  S.  W.  420,  holding  tender  to  pledgee's 
attorney  upon  condition  that  notes,  known  to  be  out  of  his  possession  be  imme- 
diately surrendered,  not  good;  Reynolds  v.  Price,  88  S.  C.  531,  71  S.  E.  51.  holding 
that  refusal  of  tender,  in  good  faith,  on  ground  that  amount  is  insufficient,  will 
not  discharge  lien  of  mortgage. 

Cited  in  footnote  to  Moore  v.  Norman,  18  L.  R.  A.  359,  which  holds  tender  cou- 
pled with  demand  of  surrender  of  notes  ineffectual  to  discharge  chattel  mortgage. 

Cited  in  notes  (33  L.  R.  A.  234)  on  effect  of  unaccepted  tender  on  lien  by  mort- 
gage or  pledge;   (9  L.  R.  A.  55)   on  lien  of  chattel  mortgage  devested  by  absolute 
tender. 
Relief  in  equity  from  forfeiture  of  iiiortuaso. 

Cited  in  note  (86  Am.  St.  Rep.  58)  on  relief  in  equity  from  forfeitures  of  mort- 
gages. 


*31  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  94 

Federal  conrts  following;  ntate  dedalon*. 

Cited  in  note  (40  L.R.A.(N.S.)  415)  on  questions  of  state  law  as  to  which. 
state  court  decisions  must  be  followed  in  actions  originating  in,  or  removed  to, 
Federal  courts. 

3  L.  R.  A.  94,  WEAVER  v.  GAY,  31  W.  Va.  736,  8  S.  E.  743. 
Acceptance  of  option. 

Cited  in  Hanly  v.  Watterson,  39  W.  Va.  220,  19  S.  E.  536,  holding  option  to  buy 
timber,  not  limited,  must  be  accepted  within  reasonable  time;  Snow  v.  Nelson.  113 
Fed.  358,  holding  option  on  mining  claim  not  assignable  before  acceptance:  Dyer 
v.  Duffy,  39  W.  Va.  154,  24  L.  R.  A.  341,  19  S.  E.  540,  holding  option  to  sell  land 
must  be  accepted  within  reasonable  time;  Bruckman  v.  Hargadine-McKittrick 
Dry  Goods  Co.  91  Mo.  App.  465,  holding  time  of  essence  of  option  to  rehire  use  of 
personal  property;  Brown  v.  San  Francisco  Sav.  Union,  134  Cal.  452.  66  Pac. 
592,  holding  option  without  consideration  only  continuing  proposal,  and  may  be 
withdrawn  before  acceptance;  Black  v.  Maddox,  104  Ga.  163,  30  S.  E.  723,  holding 
option  under  seal  imputes  consideration  which  promisors  cannot  deny;  Black  v. 
Maddox,  104  Ga.  163,  30  S.  E.  723,  holding  option  with  consideration  irrevocable 
during  time  it  has  to  run;  James  v.  Darby,  40  C.  C.  A.  345,  100  Fed.  228,  hold- 
ing unconditional  acceptance  of  offer  not  shown;  Walker  v.  Bamberger,  17  Utah, 
246.  54  Pac.  108,  holding  work  upon  mining  claim  and  payments  on  acceptance  of 
option  took  case  out  of  statute  of  frauds;  Watson  v.  Coast,  35  W.  Va.  470,  14  S. 
E.  249,  holding  offer  by  letter  to  lease  land,  accepted  unconditionally  by  telegram, 
binding;  Barrett  v.  McAllister,  33  W.  Va.  746,  11  S.  E.  220,  holding  tender  of 
purchase  price  on  option  for  land  within  time  limited  excused  by  act  of  vendor; 
McC'ormick  v.  Stephany,  61  N.  J.  Eq.  217,  48  Atl.  25,  holding  right  to  conveyance 
not  lost  by  covenantee  demanding  deed  with  covenants  to  which  he  is  not  en- 
titled; Washington  v.  Rosario  Min.  &  Mill.  Co.  28  Tex.  Civ.  App.  441,  67  S.  W. 
459,  holding  that  acceptance  of  offer  to  sell  mining  property  must  be  uncondi- 
tional; John  v.  Elkins,  63  W.  Va.  362,  59  S.  E.  961,  holding  there  must  be  an 
acceptance  to  render  option  a  binding  contract;  Turner  v.  McCormick,  56  W  Va. 
173,  67  L.R.A.  860,  107  Am.  St.  Rep.  904,  49  S.  E.  28,  holding  verbal  acceptance 
sufficient  when  option  does  not  require  a  written  one;  New  York  L.  Ins.  Co.  v. 
Levy.  122  Ky.  468,  5  L.R.A.(N.S.)  745,  92  S.  W  325;  Beiseker  v.  Amberson,  17 
N.  D.  219.  ]]6  X.  W.  94;  Batavia  v.  St.  Louis  S.  W.  R.  Co.  126  Mo.  App.  15,  103 
S.  W.  140, — holding  acceptance  of  offer  must  be  unconditional  in  order  to  consti- 
tute binding  contract;  Fulton  v.  Messenger,  61  W.  Va.  481,  56  S.  E.  830,  holding 
acceptance  must  be  within  time  limited  by  terms  of  option;  Pearson  v.  Millard, 
150  N.  C.  308,  63  S.  E.  1053,  holding  acceptance  was  unconditional  and  sufficient; 
Hardy  v.  Ward,  150  N.  C.  391,  64  S.  E.  171,  holding  an  option  to  sell  land  is  a 
mere  proposition  by  owner  to  sell,  which  until  accepted,  is  unilateral;  Bryant 
Timber  Co.  v.  Wilson.  151  N.  C.  156.  134  Am.  St.  Rep.  982,  65  S.  E.  932.  holding 
there  being  no  valuable  consideration  an  option  to  sell  could  be  withdrawn  at 
any  time  before  unconditional  acceptance;  Tibbs  v.  Zirkle,  55  W  Ya.  .>.%  104 
Am.  St.  Rep.  977,  46  S.  E.  701,  2  A.  &  E.  Ann.  Cas.  421 ;  Simpson  v.  Sanders,  130 
Ga.  270.  60  S.  E.  541, — holding  offer  based  upon  valuable  consideration  irrevocable 
until  expiration  of  time  agreed  upon  by  parties  during  which  it  was  to  remain 
open;  Trogden  v.  Williams,  144  N.  C.  201,  10  L.R.A.(NS.)  871.  56  S.  E.  865; 
Harris  Bros.  v.  Reynolds,  17  N.  D.  21,  114  X.  W.  369,— holding  there  was  no 
acceptance  under  facts  in  case;  Moise  v.  Rock  Springs  Distilling  Co.  79  Neb.  127. 
112  X.  W.  372.  holding  one  having  an  option  must  not  only  signify  his  intention 
to  accept  within  time  limited,  but  must  also  pay  or  tender  the  price;  Cameron  v. 
Shumway,  149  Mich.  641,  113  N.  W  287,  holding  person  holding  option  acquires 


I 


3  L.R.A.  94]  L.  R.  A.  CASES  AS  AUTHORITIES.  432 

no  right  in  the  property  prior  to  his  election  to  purchase;  Herman  v.  Winter,  20 
S.  D.  202,  105  N.  W.  457.  holding  in  an  option  contract  for  the  sale  of  land  time 
is  of  the  essence  and  a  tender  or  offer  of  payment  must  be  made  within  time  speci- 
fied by  party  seeking  to  enforce  the  option;  Cummins  v.  Beavers,  103  Va.  237, 
106  Am.  St.  Rep.  881,  48  S.  E.  891,  1  A.  &  E.  Ann.  Cas.  986,  holding  an  option 
to  purchase  land  is  valid  and  specifically  enforceable  though  the  consideration  is 
not  paid  until  some  time  after  option  is  given;  Watkins  v.  Robertson,  105  Va. 
282,  5  L.R.A.(N.S.)  1191,  115  Am.  St.  Rep.  880,  54  S.  E.  33,  holding  where  option 
for  the  sale  of  stock  at  a  specified  price  if  accepted  within  a  stated  time  upon 
consideration  of  $1  it  should  be  treated  as  an  irrevocable  covenant  of  which  equity 
would  enforce  specific  performance  if  accepted  within  time  specified;  Couch  v.  Mc- 
Coy, 138  Fed.  699,  holding  to  constitute  a  valid  retraction  it  must  be  communi- 
cated to  other  party  before  acceptance;  Mier  v.  Hadden,  148  Mich.  494,  118  Am. 
St.  Rep.  586,  111  N.  W.  1040,  12  A.  &  E.  Ann.  Cas.  88,  holding  refusal  of  grantor 
in  an  option  for  purchase  of  land,  to  perform  before  any  demand  was  made  on 
him  by  the  grantee  was  not  a  renunciation  of  contract  effective  to  determine 
grantee's  rights  where  option  was  based  on  a  valuable  consideration. 

Cited  in  footnote  to  Four  Oil  Co.  v.  United  Oil  Producers,  68  L.R.A.  226,  which 
holds  binding  contract  not  created  by  acceptance  of  offer  to  sell  crude  oil  of  15 
degrees  gravity  with  stipulation  that  it  must  be  of  that  gravity  at  60  degrees 
Fahrenheit. 

Cited  in  notes  (21  L.  R.  A.  129,  130)  on  rights  conferred  by  a  "refusal"  or 
"option;"  (6  Eng.  Rul.  Cas.  133)  on  requisites  of  acceptance  of  offer;  (6  Eng.  Rul. 
Cas.  154)  on  effect  of  introducing  new  terms  in  acceptance  of  offer. 

Distinguished  in  Armstrong  v.  Ross,  61  W.  Va.  47,  55  S.  E.  895.  holding  refusal 
of  vendee  in  an  executory  contract  of  sale  of  real  estate  to  perform  contract 
according  to  the  time  interpretation  thereof  accompanied  by  an  offer  to  perform 
in  accordance  with  vendee's  own  erroneous  interpretation  thereof,  does  not  entitle 
vendor  to  rescission. 
Enforcement  of  option. 

Cited  in  Johnson  v.  Virginia-Carolina  Lumber  Co.  89  C.  C.  A.  632,  163  Fed.  251, 
holding  an  option  to  be  enforceable  must  be  under  seal  or  supported  by  a  valuable 
consideration;  Corbett  v.  Cronkhite,  239  111.  17,  87  N.  E.  874,  holding  an  option 
contract  to  convey  land  founded  on  a  proper  consideration  may  be  specifically 
enforced  on  the  acceptance  of  its  terms  and  a  tender  of  the  price  within  time 
specified. 

Cited  in  notes  (6  L.R.A.(X.S.)  407)  on  right  to  specific  performance  of  option 
as  affected  by  lack  of  mutuality;  (24  L.R.A. (N.S.)  92,  94)  on  tender  or  payment 
as  condition  precedent  to  suit  for  specific  performance  of  option  contract  to  con- 
vey realty. 

3  L.  R,  A.  110,  COLLIN  v.  HILLS,  77  Iowa,  181,  41  N.  W.  571. 
Sale   In   original   packages. 

Cited  in  State  v.  Bowman,  79  Iowa,  567,  44  N.  W.  813;  State  v.  Zimmerman,  78 
Iowa,  617,  43  N.  W.  458;  State  v.  Bow-man,  78  Iowa,  521,  43  N.  W.  302:  Grousen- 
dorf  v.  Howat,  77  Iowa.  188.  41  X.  W.  573, — holding  sale  of  liquor  purchased  in 
another  state  and  delivered  in  original  packages,  subject  to  laws  of  state;  Leisy 
v.  Hardin,  78  Iowa,  288,  43  X.  W.  188,  holding  sale  of  liquor  in  unbroken  orig- 
inal package,  made  out  of  state  and  sold  by  manufacturers,  subject  to  laws  of 
state;  State  v.  Fulker,  43  Kan.  250,  7  L.  R.  A.  188,  22  Pac.  1020,  holding  state 
can  regulate  sale  of  liquor  in  original  packages;  People  v.  Lyng,  74  Mich.  588,  42 
X.  W.  139.  holding  liquor  brought  into  state  subject  to  its  tax  laws:  State  ex  rel. 
Cochran  v.  Winters,  44  Kan.  730,  10  L.  R.  A.  619,  25  Pac.  235,  holding  size  of 


433  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  122 

packages  of  liquor  had  nothing  to  do  with  their  character  as  original  packages; 
Wind  v.  Her,  93  Iowa,  325,  27  L.  R.  A.  222,  61  X.  W.  1001,  holding  character  of 
original  package  not  destroyed  by  opening  bung  of  barrel  to  test  and  inspect 
liquor;  State  v.  Coonan,  82  Iowa,  401,  3  Inters.  Com.  Rep.  670,  48  N.  W.  921, 
holding  sale  by  manufacturers  of  separate  bottles  as  put  up  by  them  in  another 
state,  not  to  be  drunk  on  premises,  authorized;  Austin  v.  Tennessee,  179  U.  S. 
359,  45  L.  ed.  232,  21  Sup.  Ct.  Rep.  132,  holding  package  of  ten  cigarettes  not 
original  package,  but  subterfuge  to  escape  effect  of  state  law. 

Cited  in  notes  (7  L.R.A.  296)  on  right  of  state  to  prohibit  sale  of  imported 
liquors;  (15  L.R.A.  (X.S.)  925)  on  constitutional  right  to  prohibit  sale  of  intoxi- 
cants; (39  L.R.A. (N.S.)  1055)  on  what  constitutes  original  or  unbroken  package. 

Distinguished  in  Hopkins  v.  Lewis,  84  Iowa,  691,  15  L.  R.  A.  398,  51  N.  W. 
255.  holding  sales  not  shown  to  be  of  original  packages. 

Cited  as  obiter  and  overruled  in  McGregor  v.  Cone,  104  Iowa,  474,  39  L.  R,  A. 
4S7;  65  Am.  St.  Rep.  522,  73  N.  W.  1041,  holding  box  in  which  sealed  packages  of 
cigarettes  are  packed  for  shipment  the  original  package  of  commerce. 

3  L.  R.  A.  114,  GOUDY  v.  WERBE,  117  Ind.  154,  19  N.  E.  764. 


Cited  in  Chatten  v.  Snider,  126  Ind.  390,  26  N.  E.  166,  holding  exemption  laws 
are  to  be  liberally  construed  in  favor  of  debtor  and  his  family. 
exemption    of   partnership   property. 

Cited  in  State  ex  rel.  Miller  v.  Day,  3  Ind.  App.  158,  29  N.  E.  436,  holding  ex- 
emption cannot  be  claimed  in  property  apportioned  to  partner  on  dissolution  of 
partnership,  as  against  execution  previously  issued  against  firm;  Lee  v.  Bradley 
Fertilizer  Co.  44  Fla.  797.  53  So.  456,  holding  fraud  cannot  be  imputed  to  the 
acquisition  by  partners  of  the  ownership  in  severalty  of  the  partnership  property 
on  the  ground  that  such  ownership  in  severalty  was  acquired  with  the  intent  and 
for  the  purpose  of  exempting  such  property  from  partnership  debts. 
Rights  of  firm  creditors  in  partnership  property. 

Cited  in  Johnson  v.  McClary,  131  Ind.  106,  30  X.  E.  888,  holding  firm  creditors 
have  no  special  interest  in  partnership  property,  except  through  rights  of  part- 
ners: Selz,  S.  &  Co.  v.  Mayer,  151  Ind.  429,  51  X.  E.  485,  holding  sale  by  partner 
of  interest  in  firm  property  is  waiver  of  lien,  and  in  absence  of  fraud  good  as 
against  firm  creditors;  Simmons  Hardware  Co.  v.  Thomas,  147  Ind.  320,  46  X.  E. 
<;4.->:  Studebaker  Bros.  Mfg.  Co.  v.  Bird,  119  Ind.  429,  21  X.  E.  1086;  Purple  v. 
Farrington,  119  Ind.  171,  4  L.  R.  A.  538,  21  X.  E.  543;  Elliott  v.  Pontius,  136 
Ind.  647.  35  X.  E.  564, — holding  mortgage  of  partnership  property  by  firm  in  good 
faith,  for  debt  of  individual  partner,  not  ground  for  setting  aside;  Mannen  v. 
Bailey,  51  Kan.  447,  32  Pac.  1085,  holding  partner  furnishing  capital  of  firm  may 
mortgage  firm  property  to  secure  loan  procured  for  use  of  partnership. 

Cited   in   note   (2  L.R.A.(X.S.)    256)    on  right  of  partnership  as  against  firm 
creditors  to  sell  or  mortgage  firm  property  to  discharge  or  secure  member's  indi- 
vidual debt. 
Indebtedness  of  individual  partners. 

Cited  in  note  (29  L.  R.  A.  682)  on  assumption  by  partnership  of  individual 
debts  of  partners. 

3  L.  R,  A.  122,  MILFORD  v.  MILFORD  WATER  CO.  124  Pa.  610,  17  Atl.  185. 
Illegality   as   defense   to   contract   generally. 

Distinguished  in  Union   Trust  Co.  v.  Preston  Xat.  Bank,  136  Mich.  464,  112 
Am.  St.  Rep.  370,  99  X.  W.  399,  4  A.  &  E.  Ann.  Cas.  347,  holding  a  certified  check 
L.R.A.  Au.  Vol.  I.— 28. 


3  L.R.A.  122]  L.  R.  A.  CASES  AS  AUTHORITIES.  434 

is  valid  in  the  hands  of  a  bona  fide  holder,  although  check  was  certified  when 
drawer  had  no  funds  in  bank  which  was  a  crime  by  statute. 

Municipal  and   other  corporate   contracts  as   affected  by   interest   or  ille- 
gality. 

Cited  in  Jolly  v.  Pittsburg,  N.  I.  &  C.  R.  Co.  16  Pa.  Co.  Ct.  7,  26  Pittsb.  L.  T. 
N.  S.  331,  holding  ordinance  allowing  railroad  company  use  of  street  void,  when 
stockholders  members  of  council ;  Wood  v.  Elliott,  26  Pittsb.  L.  J.  X.  S.  336,  hold- 
ing contract  of  council  to  purchase  lot  of  member  for  town  hall  void;  Re  Hazle 
Twp.  6  Kulp,  492,  1  Pa.  Dist.  R.  814,  denying  right  of  township  supervisors  to 
employ  their  own  teams  or  minor  children  on  township  roads;  Kennett  Electric 
Light  Co.  v.  Kennett  Square,  4  Pa.  Dist.  R.  707,  8  Kulp,  106,  holding  contract 
between  borough  and  corporation  for  lights,  whose  stockholders  members  of  coun 
cil,  void;  Riebe  v.  Walton,  18  Pa.  Co.  Ct.  294,  5  Pa.  Dist.  R,  558,  holding  contract 
with  burgess  for  construction  of  sewer  void;  Ellwood  Lumber  Co.  v.  Frey.  19  Pa. 
Co.  Ct.  62,  27  Pittsb.  L.  J.  X.  S.  382,  holding  contract  between  corporation  and 
school  directors  to  build  schoolhouse  void,  where  manager  member  of  school  board ; 
State,  Stroud,  Prosecutor,  v.  Consumers'  Water  Co.  56  N.  J.  L.  430,  28  Atl.  578, 
holding  ordinance  for  purchase  of  waterworks,  in  which  four  members  of  council 
voting  therefor  are  stockholders,  is  illegal;  Delaware  River  Quarry  &  Constr.  Co. 
v.  Bethlehem  &  N.  Street  R.  Co.  7  Xorthampton  Co.  Rep.  347,  denying  recovery  on 
contract  for  construction  of  street  railroad  when  party  has  failed  to  register; 
Swift  &  Co.  v.  Dyer-Veatch  Co.  28  Ind.  App.  6,  62  X.  E.  70,  holding  mortgage  by 
majority  of  directors  securing  debts  for  which  such  directors  are  liable  as  sure- 
ties void;  Sturr  v.  Elmer,  75  X.  J.  L.  445,  67  Atl.  1059,  holding  purchase  by  bor- 
ough of  lands  belonging  to  member  of  common  council  invalid;  Com.  v.  Caven, 
15  Pa.  Dist.  R.  293,  holding  a  contract  with  the  city  to  furnish,  deliver  and  place 
all  sand,  gravel,  lateral  connections  and  appurtenances  required  by  specifications 
for  a  filter  plant  is  within  reclaiming  of  act  prohibiting  a  member,  officer  or  agent 
of  any  corporation  or  public  institution  from  being  interested  in  any  contract  for 
furnishing  supplies  to  the  same;  Com.  v.  Cloud,  36  Pa.  Co.  Ct.  192,  19  Pa.  Dist. 
R.  300,  holding  the  farming  by  borough  councilman  of  teams  and  drivers  tor  the 
public  work  of  the  borough  and  receiving  compensation  for  use  of  same  from 
borough,  is  furnishing  supplies  within  meaning  of  statute;  Com.  v.  Witman.  217 
Pa.  415,  66  Atl.  986,  15  Pa.  Dist.  R.  212,  holding  statute  prohibiting  any  member 
of  a  municipality  from  being  interested  in  furnishing  supplies  to  it  applies  to 
a  councilman  who  is  interested  in  furnishing  supplies  for  use  of  such  municipality; 
Com.  ex  rel.  Melvin  v.  Paul,  15  Pa.  Dist.  R.  680,  holding  act  which  forbids  member 
of  a  corporation  or  public  institution  to  be  interested  in  contracts  for  supplies 
for  use  of  corporation  does  not  apply  where  goods  are  sold  to  municipality  in  the 
way  of  trade,  in  the  absence  of  any  contract  other  than  that  implied  by  law  for 
their  payment. 

Cited  in  notes  (15  L.  R.  A.  522)  on  power  of  officer  to  contract  with  public  body 
or  municipality  which  he  represents;  (61  L.  R.  A.  68,  74)  on  establishment  and 
regulation  of  municipal  water  supply;  (12  Am.  St.  Rep.  294)  on  invalidity  of 
corporate  contract  where  directors  are  disqualified. 

Distinguished  in  Marshall  v.  Ellwood  City,  189  Pa.  352,  43  W.  X.  C.  482,  41 
Atl.  994,  holding  water  ordinance  not  invalid  because  of  interest  of  councilman, 
where  there  is  majority  vote  therefor  without  vote  of  such  member;  Trainer  v. 
Wolfe,  140  Pa.  288.  27  W.  X.  C.  526,  21  Atl.  391,  holding  contract  for  purchase 
of  real  estate  by  school  board  financially  interested  in  sale  voidable;  Rumsey  v. 
New  York  &  P.  R.  Co.  203  Pa.  584.  53  Atl.  495,  sustaining  contract  in  effect  al- 
lowing officers  to  participate  in  profits  of  construction  of  railroad,  as  valid  where 
made. 


435  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  125 

Sufficiency  of  evidence. 

Cited  in  Com.  v.  Paul,  32  Pa.  Co.  Ct.  70,  holding  a  writ  of  quo  warranto  against 
a  councilman  alleged  to  be  interested  in  city  contracts  will  be  quashed  where  the 
evidence  fails  to  show  the  character  of  the  contracts,  or  their  legality,  or  that 
respondent  had  any  knowledge  of  the  contracts  alleged  to  have  been  made  with 
the  city  by  a  partnership  of  which  he  was  a  member. 
iiatiflcation  of  illegal  municipal  contracts. 

Cited  in  Findlay  v.  Pertz,  29  L.R.A.  194,  13  C.  C.  A.  570,  31  U.  S.  App.  340,  66 
Fed.  438,  holding  contract  with  city  procured  by  fraud,  but  not  in  itself  unlawful, 
is  subject  to  ratification;  Indianapolis  v.  Wann,  144  Ind.  188,  31  L.R.A.  747,  42 
N.  E.  901,  holding  contract  for  street  lighting,  illegal  because  made  without 
previous  appropriation,  not  ratified  by  subsequent  appropriation;  Resnek  v. 
Nazareth  School  Dist.  19  Pa.  Dist.  R.  725,  12  North.  Co.  Rep.  244,  holding  that 
purchase  of  realty  by  school  board  from  member,  in  good  faith,  at  fair  price, 
may  be  ratified  after  he  has  ceased  to  be  member;  Philadelphia  v.  Durham,  16  Pa. 
Dist.  R.  91,  as  to  their  being  incapable  of  ratification. 

Distinguished  in  Trainer  v.  Wolfe,  140  Pa.  288,  21  Atl.  319,  holding  purchase 
by  school  board  of  real  estate  in  which  director  interested  as  owner  may  be  rati- 
fied by  disinterested  board. 

3  L.  R.  A.  124,  LAFFERTY  v.  SCHUYLKILL  RIVER  E.  S.  R.  Co.  124  Pa.  297, 

10  Am.  St.  Rep.  587,  16  Atl.  869. 
Damagres    from    eminent    domain. 

Cited  in  Pennsylvania  S.  Valley  R.  Co.  v.  Ziemer,  124  Pa.  570,  17  Atl.  187, 
holding  right  of  action  for  consequential  damages  does  not  arise  till  after  con- 
struction of  railroad. 

Cited  in  note   (21  L.  R.  A.  216)   on  rights  of  tenants  and  reversioners  of  prop- 
erty taken  by  eminent  domain. 
Emblemeuts. 

Annotation  cited  in  Hetfield  v.  Lawton,  108  App.  Div.  116,  95  N.  Y.  Supp.  451, 
on  tenants  right  to  emblements. 
Possession  of  laud  as  notice  of  title. 

Cited  in  notes  (13  L.R.A.(N.S.)  97)  on  possession  of  land  as  notice  of  title; 
(11  Eng.  Rul.  Cas.  548)  on  possession  as  evidence  of  seisin. 

3  L.  R.  A.  125,  CIGAR-MAKERS    PROTECTIVE  UNION  NO.  98  v.  COXHAIM, 

40  Minn.  243,  12  Am.  St.  Rep.  726,  41  N.  W.  943. 
What   constitutes   trade-mark. 

Cited  in  J.  R.  Watkins  Medical  Co.  v.  Sands,  80  Minn.  91,  82  N.  W.  1109,  hold- 
ing that  phrase  "Dr.  Ward's  Liniment,"  with  line  passing  through  words  hori- 
zontally, used  for  over  twenty  years,  is  trade-mark;  People  v.  Danturna,  252  111. 
566,  39  L.R.A.(N.S.)  1195,  96  N.  E.  1087,  holding  that  union  label  is  not  a  trade- 
mark. 

Cited  in  footnotes  to  Cohn  v.  People,  23  L.  R.  A.  821,  which  holds  statute  giving 
right  to  trade-mark  in  union  label  valid;  Koehler  v.  Sanders,  9  L.  R.  A.  576, 
which  denies  right  to  appropriate  word  "international"  as  trade-mark. 

Cited  in  notes   (9  L.  R.  A.  145)   on  what  trade-mark  may  consist  of;   (19  L.  R. 
A.  56)    on  invalidity  of  deceptive  trade-marks. 
Right   to   nse   counterfeit   of   union   label. 

Cited  in  Weener  v.  Brayton.  152  Mass.  103,  8  L.  R.  A.  642,  25  N.  E.  46,  holding 
that  members  of  cigar  makers'  union  cannot  maintain  bill  to  restrain  infringe- 
ment of  union  label  as  trade-mark. 


3  L.R.A.  125]  L.  R.  A.  CASES  AS  AUTHORITIES.  436 

Cited  in  footnotes  to  McVey  v.  Brendel,  13  L.  R.  A.  3~i~,  which  holds  equity  will 
not  protect  labor  union  in  use  of  nontrade-mark  label;  Carsons  v.  Ury,  5  L.  R.  A. 
614,  which  authorizes  injunction  against  counterfeit  of  union  label. 

Cited  in  notes  (29  L.  R.  A.  200)  on  protection  of  trade  union  labels  or  trade- 
marks; (39  L.  R.  A.  (X.  S.)  1191,  1192),  on  law  as  to  union  labels. 

Distinguished  in  Carson  v.  Ury,  5  L.  R.  A.  616,  39  Fed.  780,  holding  cigar  manu- 
facturer, using  union  label  of  cigar  makers'  union,  may  enjoin  another  manu- 
facturer from  using  counterfeit  label. 

Disapproved  in  Hetterman  Bros.  v.  Powers,  102  Ky.  140,  39  L.  R.  A.  213,  80 
Am.  St.  Rep.  348,  43  S.  W.  180,  and  State  v.  Hagen,  6  Ind.  App.  170,  33  X.  E. 
223,  holding  members  of  cigar  makers'  union,  though  not  manufacturers,  entitled 
to  sue  in  equity  to  protect  interests  of  members  in  union  label  against  frauds  and 
counterfeiters;  State  v.  Bishop,  128  Mo.  381,  29  L.  R.  A.  205,  49  Am.  St.  Rep.  569r 
31  S.  W.  9,  holding  label  of  cigar  makers'  union  within  statute  making  unauthor- 
ized use  of  label  adopted  by  union  of  workingmen  misdemeanor  (overruling  in 
effect  State  v.  Berlinsheimer,  62  Mo.  App.  174,  holding  same  label  not  within 
statute). 
Infringement  of  trade-mark. 

Cited  in  footnotes  to  Symonds  v.  Jones,  8  L.  R.  A.  570,  which  holds  that  trans- 
ferer  of  trade-mark,  though  containing  nis  name  or  initials,  cannot  use  same; 
Chadwick  v.  Covell,  6  L.  R.  A.  839,  which  holds  grantee  of  trade-mark  to  medicine 
made  according  to  secret  recipes,  whose  right  to  use  is  not  exclusive,  not  entitled  to 
enjoin  use  by  others;  Converse  v.  Hood,  4  L.  R.  A.  521,  which  holds  stockholder  of 
corporation  cannot  enjoin  infringement  of  trade-mark  used  by  company. 

Cited  in  note   (5  L.  R.  A.  130)   on  violation  of  trade-mark. 

3  L.  R.  A.  129,  MISSOURI  P.  R.  CO.  v.  VANDEVENTER,  26  Neb.  222,  41  N.  W. 

998. 
Railroad    contracts   limiting:   liability. 

Cited  in  Pennsylvania  Co.  v.  Kennard  Glass  &  Paint  Co.  59  Xeb.  444,  81  X.  W. 
372;  Union  P.  R.  Co.  v.  Metcalf,  50  Xeb.  460,  69  X.  W.  961;  St.  Joseph  &  G.  L 
R.  Co.  v.  Palmer,  38  Xeb.  471,  22  L.  R.  A.  338,  4  Inters.  Com.  Rep.  497,  56  X.  W. 
957;  Omaha  &  R.  Valley  R.  Co.  v.  Crow,  47  Xeb.  91,  66  X.  W.  21,— holding  railroad 
cannot,  by  special  agreement,  limit  liability  as  common  carrier;  Grieve  v.  Illi- 
nois C.  R.  Co.  104  Iowa,  662,  74  X.  W.  192,  holding  provision  in  shipping  agree- 
ment, requiring  notice  of  claim  for  loss  or  damage  to  stock  within  ten  days  after 
removal  from  cars,  invalid;  Ohio  &  M.  R.  Co.  v.  Tabor,  98  Ky.  510,  34  L.  R.  A. 
689,  36  S.  W.  19,  holding  provision  in  shipping  agreement,  requiring  written  no- 
tice of  injury  to  stock  before  unloading,  invalid;  Union  P.  R.  Co.  v.  Thompson, 
75  Xeb.  470,  106  X.  W.  598,  holding  a  stock  shipping  contract  containing  a  pro- 
vision that  unless  claims  for  loss,  damage  or  detention  are  presented  within  ten 
days  from  date  of  unloading  such  claims  should  be  deemed  to  be  waived,  void; 
Latta  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  97  C.  C.  A.  198,  172  Fed  854,  holding  con- 
tract limiting  among  recoverable  for  loss  or  injury  to  livestock  at  certain  price 
per  head  regardless  of  actual  value,  void ;  Whitnack  v.  Chicago,  B.  &  Q.  R.  Co. 
82  Xeb.  470,  19  L.R.A.(X.S  )  1017,  130  Am.  St.  Rep.  602,  118  X.  W.  67.  holding 
under  Constitution  railway  company  could  not  contract  to  limit  its  liability  nor 
relieve  itself  from  its  negligence  as  a  common  carrier. 

Cited  in  notes  (13  L.R.A.(X.S.)  754)  on  validity  of  contract  limiting  time  for 
bringing  action,  or  presenting  claims  for  damages,  where  carrier  prohibited  from 
limiting  its  common-law  liability;  (13  Am.  St.  Rep.  783)  on  extortion  of  unau- 
thorized stipulations  from  shippers  and  their  effect;  (88  Am.  St.  Rep.  129)  on 
limitation  of  carrier's  liability  in  bills  of  lading. 


437  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  133 

Distinguished  in  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Schuldt,  66  Neb.  47,  92  X.  \V. 
162,  holding  the  agreement  that  shipper  shall  accompany  the  stock  and  be  respon- 
sible for  its  care  is,  when  proper  facilities  are  supplied,  not  a  limitation  on  car- 
rier's liability  as  contemplated  by  state  Constitution. 
Special    verdict    of   jury. 

Cited  in  Town  v.  Missouri  P.  R.  Co.  50  Neb.  779,  70  N.  W.  402,  and  Sandwich 
Enterprise  Co.  v.  West,  42  Neb.  728,  60  N.  W.  1012,  holding  failure  of  jury  to 
return  special  findings  in  answer  to  immaterial  questions  not  ground  for  reversal. 

3  L.  R.  A.  133,  COXOLLY  v.  CRESCENT  CITY  R.  CO.  41  La.  Ann.  57,  17  Am.  St. 

Rep.  389,  5  So.  259. 
Obligation   of   railrontl    to    nH-k   or   demented   passenger. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  Salzman,  52  Ohio  St.  566,  31  L.  R.  A. 
264,  49  Am.  St.  Rep.  745,  40  N.  E.  891,  holding  railroad  bound  to  give  sick  person 
on  train  such  care  as  is  fairly  practicable,  without  unreasonable  delay  of  train; 
Weightman  v.  Louisville,  N.  O.  &  T.  R.  Co.  70  Miss.  568,  19  L.  R.  A.  672,  35  Am. 
St.  Rep.  660,  12  So.  586,  holding  railroad  liable  for  death  of  sick  passenger  car- 
ried past  station  and  put  off  train  at  night  and  neglected  for  forty  hours;  Haug 
v.  Great  Northern  R.  Co.  8  N.  D.  30,  42  L.  R.  A.  670,  73  Am.  St.  Rep.  727,  77  N. 
W.  97,  holding  railroad  liable  for  death  of  intoxicated  person  from  being  carried 
past  station  and  ejected  from  depot  in  storm;  Fagg  v.  Louisville  &  N.  R.  Co. 
Ill  Ky.  38,  54  L.  R.  A.  922,  63  S.  W.  580,  holding  railroad  liable  for  death  of 
trespasser  on  train,  caused  by  his  ejection  in  intoxicated  condition  shortly  before 
passage  of  another  train;  Louisville  &  X.  R.  Co.  v.  Ellis,  97  Ky.  340,  30  S.  W. 
1)79,  holding  railroad  liable  for  death  of  drunken  passenger  ejected  from  train 
for  refusal  to  pay  fare,  under  circumstances  such  as  would  necessarily  or  prob- 
ably expose  him  to  danger;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Woodruff,  89  Ark.  16, 
115  S.  W.  953,  holding  in  removing  an  unattended  passenger  who  becomes  insane 
on  train  it  is  duty  of  company  to  use  reasonable  care  and  prudence  in  regard 
to  passengers  safety;  Pullman  Car  Co.  v.  Krauss,  145  Ala.  400,  4  L.R.A.(X.S  ) 
105,  40  So.  398,  8  A.  &  E.  Ann.  Gas.  218,  holding  a  sleeping  car  company  is  not 
bound  to  admit  persons  as  passengers  on  its  cars  who  are  afflicted  with  a  con- 
tagious or  infectious  disease;  Bragg  v.  Norfolk  &  W.  R.  Co.  110  Va.  871,  67  S.  E. 
593.  holding  railroad  liable,  where  station  agent  permits  drunken  passenger  put 
off  train  to  wander  off  alone  in  deep  snow. 

Cited  in  footnotes  to  Dwindle  v.  New  York  C.  &  H.  R.  R.  Co.  8  L.  R.  A.  224, 
which  holds  railroad  company  liable  for  acts  of  porter  of  sleeping  or  drawing- 
room  car;  Paddock  v.  Atchison  T.  &  S.  F.  R.  Co.  4  L.  R.  A.  231,  which  upholds 
carrier's  right  to  remove  passenger  apparently  broken  out  with  smallpox. 

Cited  in  notes  (31  L.  R.  A.  263  on  duty  of  carrier  to  passenger  taken  ill  during 
journey;  (19  L.  R.  A.  328)  on  exposure  of  drunken  passenger  to  danger  by  ejec- 
tion from  car;  (12  LR.A.  339)  on  liability  of  carrier  for  tortious  acts  of  agents; 
(4  L.R.A.(X.S.)  104)  on  right  of  carrier  to  reject  persons  having  contagious 
disease;  (118  Am.  St.  Rep.  466)  on  duties  and  liabilities  of  street  railway  com- 
panies toward  disabled  passengers. 

Distinguished  in  Griswold  v.  Boston  &  M.  R.  Co.  183  Mass.  437,  67  N.  E.  354, 
denying  damages  for  injuries  from  being  run  down  by  engine  while  on  track ; 
Bohannon  v.  Southern  R.  Co.  112  Ky.  114,  65  S.  W.  169,  denying  damages  for 
death  of  drunken  passenger  who  alighted  from  train  at  coal  chute;  Hudson  v. 
Lynn  B.  R.  Co.  185  Mass.  520,  71  N.  E.  66,  holding  person  who  was  carried 
from  a  car  in  an  unconscious  condition  and  laid  by  side  of  track  and  run  over 
and  killed  was  not  in  exercise  of  due  diligence  w!*'  i  statute  giving  right  of 


3  L.R.A.  133]  L.  R.  A.  CASES  AS  AUTHORITIES.  43» 

action  against  street  railway  for  death  of  one  caused  by  negligence  of  street  car 
company  while  person  killed  was  exercising  due  diligence. 

3  L.  R.  A.  137,  LARKIN  v.  HECKSHER,  51  N.  J.  L.  133,  16  Atl.  703. 
Employment   for   stated   term. 

Cited  in  Mallory  v.  Mackaye,  34  C.  C.  A.  656,  92  Fed.  752,  holding  that  contract 
of  employment  running  ten  years,  unless  terminated  by  employer  at  end  of  any 
year,  is  entire;  Lee  v.  Dow,  71  N.  H.  328,  51  Atl.  1072,  sustaining  right  of  action 
for  wrongful  discharge,  begun  before  expiration  of  contract;  E.  I.  Du  Pont  Co.  v 
Waddell,  101  C.  C.  A.  335,  178  Fed.  413,  holding  in  an  action  for  alleged  wrongful- 
discharge  of  a  servant,  whether  plaintiff's  contract  was  for  a  year  or  from  month 
to  month  at  the  will  of  either  party  was  a  question  for  the  jury;  Ramsey  v.  Perth 
Amboy  Shipbuilding  &  Engineering  Co.  72  K  J.  Eq.  167,  65  Atl.  461,  holding 
where  a  contractor  fails  to  fulfil  his  contract,  it  is  the  duty  of  the  other  party 
to  make  reasonable  exertions  to  mitigate  loss;  Maynard  v.  Royal  Worcester  Corset 
Co.  200  Mass.  7,  85  X.  E.  877,  holding  in  absence  of  proof  by  defendant  that 
plaintiff  found  or  could  have  found  other  employment  of  some  kind  reasonably 
adapted  to  his  abilities,  plaintiff  is  entitled  to  recover  salary  fixed  by  contract. 

Cited  in  footnote  to  Olmstead  v.  Bach,  18  L.  R.  A.  53,  which  holds  judgment 
for  one  week's  wages  after  dismissal  not  bar  to  suit  for  subsequent  wages. 

Cited  in  notes   (24  L.RA.  231)   on  effect  of  part  performance  of  contract  for 
services;   (6  L.R.A.(N.S.)  96)  on  remedy  of  wrongfully  discharged  servant  by  ac- 
tion for  breach  of  contract;    (30  Am.  St.  Rep.  57)    on  entirety   of  contract  of 
hiring. 
Justification   for   discharge   of   servant. 

Cited  in  Burt  v.  Catlin,  65  App.  Div.  457,  72  N.  Y.  Supp.  924,  holding  mere 
fact  of  assault  by  servant  on  another  servant  not  necessarily  justification : 
Walker  v.  John  Hancock  Mut.  L.  Ins.  Co.  80  N.  J.  L.  344,  35  L.R.A.  (N.S.)  157, 
79  Atl.  354,  Ann.  Cas.  1912  A,  526,  holding  refusal  of  insurance  agent  to  permit 
inspection  of  his  work  sufficient  cause  for  discharge. 

3  L.  R.  A.  139,  POWELL  v.  KELLY  BROS.  82  Ga.  1,  9  S.  E.  278. 
Absolute    conveyance   to   creditor   not    general    assignment. 

Cited  in  Fulton  v.  Gibian,  98  Ga.  232,  25  S.  E.  431,  holding  mortgages  and  as- 
signment of  choses  in  action  not  assignment  for  creditors  where  no  trust  imposed : 
Stillwell  v.  Savannah  Grocery  Co.  88  Ga,  141,  13  S.  E.  963.  holding  absolute  con- 
veyance in  consideration  of  antecedent  debt  and  promise  to  pay  other  debts  of 
grantor,  without  reservation  of  trust,  not  general  assignment;  Rosenplantcr  v. 
Toof,  99  Tenn.  100,  41  S.  W.  336,  holding  absolute  bill  of  sale  in  consideration  of 
grantee  paying  debts  specified  obligates  grantee  to  pay,  regardless  of  amount 
realized  from  property. 

Cited  in  notes    (36  L.  R.  A.  353)    on  right  of  creditor  to  buy  property  front 
debtor  in  satisfaction  of  debt;    (37  L.  R.  A.  341)   on  whether  preference  by  mort- 
gage or  sale  an  assignment  for  creditors;    (94  Am.  St.  Rep.  230)  on  assignment 
for  creditors  as  sale. 
Right   of   debtor   to   control   surplus   In   conveyance    to    creditor. 

Cited  in  Fechheimer  v.  Baum.  43  Fed.  724,  holding  that  since  repeal  of  last 
clause  of  Ga.  Code.  §  1953,  mortgage  may  provide  that  surplus  shall  go  to  other 
favored  creditors:  Boykin  v.  Epstein,  94  Ga.  762,  22  S.  E.  218,  holding  insolvent, 
may  assign  choses  in  action  not  within  description  of  "negotiable  paper,"  as  col- 
lateral security  for  debt  of  assignee. 

Distinguished  in  Johnson  v.   Adams.  92   Ga.  552,   17   S.   E.   898,  holding  that 


439  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R,A.  145 

transfer  of  property  by  insolvent  debtor  under  agreement  of  grantee  to  pay  part 

of  proceeds  to  third  party  and  apply  balance  on  debt  due  himself  is  assignment  for 

creditors. 

Preferences    In   general   assignments. 

Cited  in  footnotes  to  Manning  v.  Beck,  14  L.  R.  A.  198,  which  holds  bona  fide 
transferee  not  affected  by  debtor's  intention  to  make  general  assignment  for  cred- 
itors; Van  Raalte  v.  Harrington,  11  L.  R.  A.  424,  which  holds  relationship  of 
preferred  creditors  fact  for  consideration  on  question  of  fraud. 

Cited  in  notes  (6  L.  R.  A.  110)  on  validity  of  assignment  for  benefit  of  cred- 
itors; (11  L.  R.  A.  467;  12  L.  R.  A.  810)  on  right  to  make  preferences  in  general 
assignment;  (6  L.R.A.  109)  on  construction  of  insolvency  statutes;  (58  Am.  St. 
Rep.  95)  on  fraudulent  assignments  for  creditors. 

3  L.  R.  A.  142,  BOLLONG  v.  SCHUYLER  NAT.  BANK,  26  Neb.  281,  18  Am.  St. 

Rep.  781,  41  N.  W.  990. 
Jurisdiction;    estoppel   to    deny. 

Cited  in  note  (15  L.  R.  A.  274)  on  estoppel  of  party  revoking  jurisdiction  to 
deny  it. 

Disapproved  in  Freer  v.  Davis,  52  W.  Va.  12,  59  L.  R.  A.  562,  94  Am.  St.  Rep. 
895,  43  S.  E.  164,  holding  plaintiff  not  estopped  to  deny  jurisdiction  of  court  in 
which  he  has  brought  suit. 
Res  judicata. 

Cited  in  footnote  to  Weir  v.  Marley,  6  L.  R.  A.  672,  which  holds  decision  on 
habeas  corpus  as  to  custody  of  child  res  judicata. 

Cited  in  notes  (7  L.  R.  A.  578)  on  doctrine  of  res  judicata;  (11  L.  R.  A.  311) 
on  judgment  as  a  bar. 

3  L.  R.  A.  145,  COTTMAN  v.  GRACE,  112  N.  Y.  299,  19  N.  E.  839. 
Doctrine   of  charitable  uses. 

Cited  in  Simmons  v.  Burrell,  8  Misc.  395.  28  N.  Y.  Supp.  625,  holding  doctrine 
of  charitable  uses  does  not  prevail  in  state  of  New  York;  Troutraan  v.  De 
Boissiere  Odd  Fellows'  Orphans'  Home,  —  Kan.  — ,  5  L.R.A. (N.S.)  698,  64  Pac. 
33,  holding  courts  of  equity  look  with  favor  upon  gifts  to  charity. 

Cited  in  notes  (5  L.  R.  A.  33)  on  statute  of  uses  and  trusts;  (6  L.  R.  A.  511) 
on  charitable  gifts;  (6  L.  R.  A.  84)  on  what  constitutes  public  charities;  (4  L. 
R.  A.  699)  on  gifts  to  public  charity  favored  by  law;  (14  L.R.A.(N.S.)  82)  on 
enforcement  of  general  bequest  for  charity  or  religion. 

Cited  as  changed  by  statute  in  Allen  v.  Stevens,  161  N.  Y.  140,  55  N.  E.  568, 
Reversing  33  App.  Div.   499,   54   N.  ¥.   Supp.   8,  holding  ancient   law  touching 
charitable  uses  for  indefinite  beneficiaries  restored  by  Laws  1893,  chap.  701. 
Indefiniteness  of  beneficiary   in   legacies. 

Cited  in  Murray  v.  Miller,  178  N.  Y.  322,  70  N.  E.  870,  Affirming  85  App.  Div. 
421,  83  N.  Y.  Supp.  591,  holding  devise  of  real  property  to  treasurer  of  unincorpo- 
rated religious  society  for  its  use,  void;  Re  Zimmerman,  22  Misc.  414,  50  N.  Y. 
Supp.  395,  and  Vanderveer  v.  McKane,  25  Abb.  N.  C.  107,  11  N.  Y.  Supp.  808, 
holding  legacies  to  pastors  of  churches  "designated,  for  masses,  not  bequests  to 
corporations;  Loch  v.  Mayer,  50  Misc.  446,  100  N.  Y.  Supp.  837,  as  to  doctrine 
of  cy  pres  as  it  exists  in  New  York;  Re  Zimmerman,  2  Gibbons,  Sur.  Rep.  360, 
holding  that  bequest  to  priest  of  named  church  for  masses  is  not  void  for  in- 
definiteness  of  beneficiary. 

Cited  in  footnotes  to  Johnson  v.  Johnson,  22  L.  R.  A.  179,  which  holds  devise 
to  trustees  for  some  charitable  purpose,  preference  to  be  given  to  something  of  edu- 


3  L.R.A.  145]  L.  R.  A.  CASES  AS  AUTHORITIES.  440 

cational  nature,  bad  for  indefiniteness;  People  ex  rcl.  Atty.  Gen.  v.  Dashaway 
Asso.  12  L.  R.  A.  117,  which  holds  promotion  of  cause  of  temperance  too  vague 
description  of  purpose  for  which  corporation  formed;  Gambel  v.  Trippe,  15  L.  R. 
A.  235,  which  holds  bequest  to  trustees  to  be  paid  over  "to  some  Presbyterian  in- 
stitution" in  specified  city  void  for  indefiniteness;  Cross  v.  United  States  Trust 
Co.  15  L.  R.  A.  606,  which  upholds  bequest  valid  by  law  of  testator's  domicil ; 
Harrington  v.  Pier,  50  L.  R.  A.  307,  which  holds  bequest  for  promotion  of  "tem- 
perance work"  in  certain  city  not  fatally  indefinite;  Crerar  v.  Williams,  21  L.  R. 
A.  454,  which  holds  bequest  for  "erection,  creation,  maintenance,  and  endowment 
of  free  public  library,"  to  be  located  in  city  named,  not  void  for  uncertainty ; 
Woman's  Foreign  Missionary  Soc.  v.  Mitchell,  53  L.  R.  A.  711,  which  holds 
legacy  to  foreign  missionary  society  for  education  of  six  girls,  to  be  selected  in 
India,  and  for  purchase  of  building  for  education  of  girls,  not  void  for  indefinite- 
ness;  Thompson  v.  Brown,  62  L.  R.  A.  398,  which  holds  devise  of  fund  to  be  dis- 
tributed by  executor  to  poor,  in  his  discretion,  valid. 

Cited  in  note   (12  L.  R.  A.  415)   on  bequests  held  void  for  uncertainty. 
Legacy  creating?  perpetuity. 

Cited  in  Re  Williams,  1  Misc.  443,  23  N.  Y.  Supp.  150,  holding  bequests  to 
conference  of  Methodist  Episcopal  Church,  in  trust  for  payment  of  pastor's 
salary,  invalid;  Re  Daniels,  41  Misc.  302,  84  N.  Y.  Supp.  684,  holding  immediate 
bequest  to  religious  society  "in  trust"  for  repairs  valid;  Fairchild  v.  Edson,  154 
N.  Y.  210,  61  Am.  St.  Rep.  609,  48  N.  E.  541,  Affirming  77  Hun,  303,  28  X.  Y. 
Supp.  401,  holding  bequest  to  executive  officer  of  society,  "absolutely,"  to  be  by 
him  applied  to  uses  of  society,  invalid;  Beecher  v.  Yale,  79  N.  Y.  S.  R.  625,  45  N. 
Y.  Supp.  622,  holding  that  direction  in  will  that  income  from  stated  sum  be  per- 
manently invested  for  support  of  library  named  creates  perpetuity;  Stevens  v. 
Annex  Realty  Co.  173  Mo.  523,  73  S.  W.  505,  upholding  deed  to  trustees  of  land  to 
be  laid  out  in  streets  and  parks;  Locke  v.  Rings,  66  Hun,  442,  21  N.  Y.  Supp. 
524  (dissenting  opinion),  majority  holding  trust  deed  providing  that  income  from 
stocks  be  paid  to  charitable  institutions  named  violates  statute  against 
perpetuities;  Lyons  v.  Bradley,  168  Ala.  517,  53  So.  244,  holding  that  private 
trust  cannot  be  extended  beyond  legal  limitations  of  a  perpetuity. 

Cited  in  notes  (4  L.R.A.  141;   11  L.R.A.  85)   on  rule  against  perpetuities;   (49 
Am.  St.  Rep.  127)  on  rule  against  perpetuities. 
Legacy    to   corporation    for    purposes    of    trust. 

Cited  in  Tabernacle  Baptist  Church  v.  Fifth  Ave.  Baptist  Church,  60  App.  Div. 
334,  70  N.  Y.  Supp.  181,  holding  statute  permitting  religious  societies  to  take  and 
hold  property  for  their  own  use  does  not  authorize  corporation  to  hold  property 
in  trust  for  others;  First  Presby.  Church  v.  McKallor,  35  App.  Div.  101,  54  N.  Y. 
Supp.  740,  holding  bequest  to  church  in  trust  for  care  of  burial  lot  not  owned  by 
it  not  within  statute  against  perpetuities. 

Cited  in  footnotes  to  Re  Sellers  Chapel  M.  E.  Church,  11  L.  R.  A.  282,  which 
upholds  trust  for  charitable  use  created  by  conveyance  to  trustees  for  erection 
of  church;  Penny  v.  Croul,  5  L.  R.  A.  858,  which  holds  that  board  of  water  com- 
missioners may  receive  gift  of  income  to  ornament  waterworks  grounds  and  main- 
tain library  thereon. 

Cited  in  notes  (11  L.  R.  A.  214)  on  trusts  in  temporalities  of  religious  corpo- 
rations; (14  L.  R.  A.  70)  on  municipal  corporation  as  trustee  of  charity;  (13 
L.  R.  A.  218)  on  power  of  municipal  corporations  to  take  and  administer  property 
in  trust  for  charitable  use. 

Distinguished  in  Re  Williams  64  Hun,  165,  18  N.  Y.  Supp.  820,  holding  be- 
quest to  corporation  with  limitation  on  its  management  of  fund  valid,  limitation 
being  disregarded. 


441  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  156 

Conversion   of   real   property   Into   personalty. 

Cited  in  Re  Russell,  59  App.  Div.  247,  69  N.  Y.  Supp.  563,  and  Re  Fitzsimons, 
29  Misc.  206,  61  N.  Y.  Supp.  485,  holding  direction  in  will  to  sell  real  estate  for 
payment  of  legacies  effects  equitable  conversion  of  same  into  personalty. 

Cited  in  note  (5  L.  R.  A.  104)  on  equitable  conversion  under  power  of  sale  in 
will. 

Construction   of  -will. 

Cited  in  McHugh  v.  McCole,  97  Wis.  176,  40  L.  R.  A.  728,  72  N.  W.  631,  and  Re 
Walkerly,  108  Cal.  660,  49  Am.  St.  Rep.  97,  41  Pac.  772,  holding  that  provisions 
of  will  cannot  be  wrested  from  natural  import  to  save  it  from  condemnation, 
when  language  is  plain  and  unambiguous. 

Cited  in  footnote  to  Adams  Female  Academy  v.  Adams,  6  L.  R.  A.  785,  which 
authorizes  use  for  public  school,  of  fund  bequeathed  to  establish  "female 
academy." 

3  L.  R.  A.  150,  HILL  v.  SILVEY,  81  Ga.  500,  8  S.  E.  808. 
How   subscriber   to   capital   stock   released. 

Cited  in  Nettles  v.  Marco,  33  S.  C.  54,  11  S.  E.  595,  holding  subscription  to 
stock  of  company  a  special  agreement  from  which  directors  could  release  sub- 
scriber on  failure  of  consideration;  Walters  v.  Porter,  3  Ga.  App.  78,  59  S.  E. 
452,  holding  persons  who  organize  a  company  and  transact  business  before  the 
minimum  capital  stock  has  been  subscribed  for  cannot  escape  liability  to  credit- 
ors of  such  company  by  selling  their  stock  to  the  corporation  itself  before  the 
debts  were  incurred. 

3  L.  R.  A.  156,  WAGNER  v.  MISSOURI  P.  R.  CO.  97  Mo.  512,  10  S.  W.  486. 

Report  of  later  appeal  in  124  Mo.  240,  25  S.  W.  229. 
Who   is  a  passeng-er. 

Cited  in  Fitzgibbon  v.  Chicago  &  N.  W.  R.  Co.  108  Iowa,  619,  79  N.  W.  477, 
holding  one  boarding  special  train  known  to  be  for  certain  class  not  presumptively 
passenger ;  Everett  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  9  Utah,  349,  34  Pac.  289, 
holding  section  hand  riding  in  caboose  of  freight  train  had  right  to  proper  care 
from  railroad;  McCarter  v.  Greenville  Traction  Co.  72  S.  C.  136,  51  S.  E.  545,  5 
A.  &  E.  Ann.  Cas.  42,  holding  where  a  passenger  entered  a  special  street  car 
chartered  by  a  particular  person,  and  tendered  the  amount  of  his  passage,  and 
kept  his  seat  with  the  knowledge  and  consent  of  the  conductor,  who  intended  to 
transport  him  to  his  destination,  the  carrier  waived  the  right  to  insist  that  he 
was  not  a  passenger,  and  was  liable  for  his  subsequent  expulsion. 

Cited  in  footnotes  to  Mendenhall  v.  Atchison,  T.  &  S.  F.  R.  Co.  61  L.  R.  A.  120, 
which  holds  one  riding  on  platform  of  baggage  car  at  direction  of  brakeman,  to 
whom  money  paid,  not  a  passenger;  Whitehead  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  6 
L.  R.  A.  409,  which  holds  duty  owed  to  one  riding  on  freight  train  with  consent 
of  agents  in  charge;  Chattanooga  Rapid  Transit  Co.  v.  Venable,  51  L.  R.  A.  886, 
which  holds  night  watchman  at  depot,  getting  on  train  to  announce  readiness  to 
resume  duty,  a  passenger;  Louisville  &  N.  R.  Co.  v.  Weaver,  50  L.  R.  A.  381, 
which  holds  station  agent  riding  on  train  without  paying  fare,  several  hours 
after  work  ended,  a  passenger. 

Cited  in  notes    (61   Am.  St.  Rep.  96)   on  who  are  passengers  and  when  they 
become  such;    (37  L.R.A.(N.S.)  423)   on  liability  of  railroad  company  for  injury 
to  person  wrongfully  on  train  by  collusion  with  a  train  employee. 
"What    risks    passenger   assumes. 

Cited  in  Fisher  v.  Central  Lead  Co.  156  Mo.  486.  56  S.  W.  1107,  holding  allofrn- 
tion  of  assumption  of  risk  in  answer  waives  its  nonallegation  in  petition;  Wait 


3  L.R.A.  156]  L.  R.  A.  CASES  AS  AUTHORITIES.  442 

v.  Omaha,  K.  C.  &  E.  R.  Co.  165  Mo.  621,  65  S.  W.  1028,  holding  railway  com- 
pany not  liable  to  passenger  thrown  to  floor  of  car  while  standing;  Erwin  v.  Kan- 
sas City,  Ft.  S.  &  M.  R.  Co.  94  Mo.  App.  296,  68  S.  W.  88,  holding  that  passenger 
asleep  on  seat  in  caboose  takes  all  risks  incident  to  the  position;  Morrow  v.  Pull- 
man Palace  Car  Co.  98  Mo.  App.  360,  73  S.  W.  281,  sustaining  passenger's  recov- 
ery for  loss  of  valuables  while  asleep  in  sleeping  car;  Willmott  v.  Corrigan  Consol. 
Street  R.  Co.  106  Mo.  543,  17  S.  W.  490,  holding  street  railway  must  use  proper 
care  in  carrying  person  riding  on  front  step  of  car;  Whitehead  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.  99  Mo.  268,  6  L.  R.  A.  411,  11  S.  W.  751,  holding  railroad  liable 
for  want  of  ordinary  care  toward  one  riding  in  caboose  of  freight  train  with  con- 
sent of  conductor;  Berry  v.  Missouri  P.  R.  Co.  124  Mo.  295,  25  S.  W.  229,  holding 
it  contributory  negligence  for  person  to  ride  on  construction  train  with  knowledge 
of  regulation  of  railroad  forbidding  it;  Young  v.  Missouri  P.  R.  Co.  93  Mo.  App. 
273,  holding  contributory  negligence  shown  by  passenger  with  weak  ankle,  on  free 
pass,  stepping  from  car  with  child  in  arms;  Guffey  v.  Hannibal  &  St.  J.  R.  Co.  53 
Mo.  App.  468,  holding  that  passenger  on  freight  train  injured  by  sudden  jerking 
of  train  cannot  recover;  Buck  v.  People's  Street  R.  Electric  Light  &  P.  Co.  46  Mo. 
App.  564,  holding  negligence  of  street  railway  driver  in  starting  car  suddenly 
as  six-year-old  passenger  was  alighting,  for  jury;  Ephland  v.  Missouri  P.  R.  Co. 
71  Mo.  App.  615  (dissenting  opinion),  majority  holding  refusal  to  charge  as  to 
position  of  brakeman  on  car  no  error;  Lane  v.  Choctaw,  0.  &  G.  R.  Co.  19  Okla. 
335,  91  Pac.  883,  holding  it  is  not  negligence  per  se  for  passenger  to  occupy  seat 
in  baggage  car;  Green  v.  Missouri,  K.  &  T.  R.  Co.  121  Mo.  App.  726,  97  S.  W,  040: 
St.  Louis  &  S.  F.  R.  Co.  v.  Gosnell,  23  Okla.  591,  22  L.R.A.(N.S.)  893,  101  Pac. 
1126, — holding  where  a  railroad  company  carries  passengers  for  hire  on  its  freight 
trains,  it  must  exercise  the  same  degree  of  care  as  is  required  in  the  operation 
of  its  regular  passenger  trains,  the  difference  only  being  that  the  passenger  sub- 
mits himself  to  the  inconvenience  and  danger  attending  that  mode  of  conveyance; 
Gray  v.  Columbia  C.  R.  Co.  49  Or.  21,  88  Pac.  297,  holding  contractor's  servant 
riding  on  flat  car  to  and  from  work,  such  being  customary  and  he  having  no 
knowledge  of  rule  of  company  which  prohibited  him  so  riding,  not  guilty  of  con- 
tributory negligence;  Harvey  v.  Deep  River  Logging  Co.  49  Or.  585,  12  L.R.A. 
(N.S.)  135,  90  Pac.  501,  holding  one  riding  with  implied  consent  of  a  logging 
company  on  its  logging  train  consisting  of  an  engine  and  a  logging  truck,  is  not 
guilty  of  contributory  negligence  per  se  in  riding  on  the  truck,  so  as  to  prevent 
recovery  for  his  injury  from  collision;  St.  Louis  &  S.  F.  R.  Co.  v.  Cox,  26  Okla. 
334,  109  Pac.  511,  holding  railroad  liable  for  injury  to  passenger  on  freight  train 
from  violent  jerking  after  train  had  stopped  at  station. 

Cited  in  footnote  to  Florida  C.  &  P.  R.  Co.  v.  Sullivan,  61  L.  R.  A.  410,  which 
denies  negligence  of  white  passenger  in  riding  in  car  set  apart  for  negroes. 

Cited  in  note  (19  L.  R.  A.  311)   on  what  risk  assumed  by  passenger  on  freight 
train. 
Pleadings. 

Cited  in  Ricketts  v.  Hart,  150  Mo.  75,  51  S.  W  825,  holding  failure  of  plaintiff 
to  allege  performance  cured  by  denial  of  such  performance  in  answer;  Burk  v. 
Pence,  206  Mo.  334,  104  S.  W.  23  (dissenting  opinion),  as  to  issue  being  first 
raised  by  answer  and  denied  by  reply  giving  court  jurisdiction  thereof. 

3  L.  R.  A.  161,  CLOSE  v.  STUYVESAXT.  132  111.  607,  24  X.  E.  868. 
Rights   and    liabilities    on    land    contract. 

Cited  in  Griffith  v.  Maxfield,  63  Ark.  551.  552,  39  S.  W.  852,  holding  vendee 
entitled  to  rescission  of  contract  when  others  than  vendor  claim  an  interest  in 
land;  McGuire  Bros.  v.  Blanchard,  107  Iowa,  494,  78  N.  W.  231,  holding  vendor 


443  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  170 

required  to  furnish  title  free  from  defect;  Bucklen  v.  Hasterlik,  51  111.  App.  143, 
holding  vendor  might  recover  sum  deposited  as  earnest  money  when  vendee  re- 
fuses to  perform  contract  for  untenable  reasons;  Harding  v.  Olson,  177  111.  303, 
52  X.  E.  482,  holding  land  contract  rescinded  and  that  payments  on  it  should  be 
refunded  when  title  defective  because  of  judgments;  Garden  City  Sand  Co.  v.  Mil- 
ler, 157  111.  233,  41  N.  E.  753,  holding  vendee  in  land  conrtact  governed  by  law  of 
situs  and  presumed  to  have  satisfied  himself  of  title;  Street  v.  French,  147  111. 
356,  35  N.  E.  814,  holding  specific  performance  of  land  contract  will  not  be  de- 
creed where  there  is  a  reasonable  doubt  at  time  of  filing  bill;  Smith  v.  Hunter, 
241  III.  521,  132  Am.  St.  Rep.  231,  89  N.  E.  686;  Koch  v.  Streuter,  232  111.  60(>! 
83  X.  E.  1072;  Pinkney  v.  Weaver,  216  HI.  192,  74  N.  E.  714,— holding  vendor 
required  to  furnish  title  free  from  reasonable  doubt;  Howe  v.  Coates,  97  Minn. 
395,  4  L.R.A.(KS.)  1170,  114  Am.  St.  Rep.  723,  107  N.  W.  397,  holding  a  pur- 
chaser will  not  be  compelled  to  take  a  title  when  there  is  a  defect  in  the  record 
title  which  can  be  cured  only  by  resorting  to  parol  evidence. 

Cited  in  footnote  to  Hodges  v.  Rowing,  7  L.  R.  A.  87,  which  holds  that  remedy 
at  law  does  not  defeat  specific  performance  of  contract  for  sale  of  land. 

Cited  in  notes    (4  L.  R.  A.  204)    on  when  specific  performance  decreed;    (10 
L.  R.  A.  127)  on  application  of  doctrine  of  laches. 
Title   acquired   under   receivers    certificate. 

Cited  in  Gourley  v.  Countryman,  18  Okla.  232,  90  Pac.  427,  holding  a  receiver's 
final  certificate  issued  under  the  homestead  laws  conveys  the  equitable  title  to 
the  person  named  in  the  certificate,  subject  to  be  defeated  by  cancelation  for 
fraud  in  procuring  same. 

3  L.  R.  A.  108,  BEST  v.  JOHNSON,  78  Cal.  217,  12  Am.  St.  Rep.  41,  20  Pac.  415. 

Liability    on    bonds. 

Followed  in  San  Luis  Obispo  County  v.  Farnum,  108  Cal.  565,  41  Pac.  445,  de- 
nying liability  of  sureties  on  auditor's  bond  for  loss  of  sums  received  from  license 
tax  collector. 

Cited  in  Farnsworth  v.  Sutro,  136  Cal.  244,  68  Pac.  705,  holding  assignee  for 
creditors  presumed  to  have  qualified  by  giving  bond. 

Cited  in  footnotes  to  Schuster  v.  Weiss,  19  L.  R.  A.  183,  which  holds  sureties 
on  appeal  bond  discharged  by  change  in  statute;  Abshire  v.  Salver,  56  L.  R.  A. 
936,  which  holds  sureties  on  guardian's  bond,  given  to  obtain  relief  from  future 
liabilities  of  surety  on  prior  bond,  liable  for  past  defalcations. 

Cited  in  notes  (9  L.  R.  A.  353)  on  liability  of  surety  or  guarantor;  (13  L.  R.  A. 
418)  on  what  acts  will  release  surety;  (6  L.R.A.  383)  on  contract  of  guaranty; 
(91  Am.  St.  Rep.  533,  545)  on  acts  for  which  sureties  on  official  bonds  are  liable. 

3  L.  R.  A.  170,  QUARLES  v.  CLAYTON,  87  Tenn.  308,  10  S.  W.  505. 
To    whom    proceeds   of   policy   payable. 

Cited  in  McLaughlin  v.  Park  City  Bank,  22  Utah,  486,  54  L.  R.  A.  353,  63  Pac. 
589,  holding  attaching  creditor  not  entitled  to  whole  fund  derived  from  policy 
on  property  on  which  attachment  lay;  Lindley  v.  Orr,  83  111.  App.  74,  holding 
prior  judgment  creditors  not  entitled,  as  ajrain^t  other  creditors,  to  proceeds  of 
policy  on  debtor's  property;  Wright  v.  Brooks.  101  Tenn.  603.  4!>  S.  \Y.  828,  hold- 
ing proceeds  of  insurance  policy  on  exempt  property  exempt  from  debts  of 
insured;  Bennett  v.  Featherstone,  110  Tenn.  32,  71  S.  W.  589,  holding  where 
policy  issued  to  life  tenant  purported  to  insure  remainderman's  interest  the 
latter  is  not  entitled  to  any  of  the  proceeds  thereof;  American  Steam  Laundry 
Co.  v.  Hamburg  Bremen  F.  Ins.  Co.  121  Tenn.  17,  21  T  R.A.(N.S.)  446,  113  S.  W. 
394,  holding  a  fire  insurance  policy  is  a  personal  contract  for  the  indemnity  of 


I 


3  L.R.A.  170]  L.  R.  A.  CASES  AS  AUTHORITIES.  444 

insured,  and  does  not  follow  the  property  on  its  sale  in  an  absence  of  an  agree- 
ment for  transfer  of  the  policy;  Seitz  v.  Bellinger,  37  Pa.  Co.  Ct.  263,  holding 
life  tenant  not  entitled  to  any  of  proceeds  of  insurance  procured  by  owner  of 
fee. 

Cited  in  footnote  to  Stone  v.  Mutual  F.  Ins.  Co.  14  L.  R.  A.  684,  which  holds 
insurer  not  liable  to  garnishment  after  electing  to  rebuild. 

Cited  in  notes  (26  L.R.A.  857)  on  insurer's  option  to  rebuild;  (20  Am.  St.  Rep. 
825)  on  construction  of  insurance  policy;  (13  Eng.  Rul.  Cas.  380)  on  right  of 
purchaser  to  recover  for  loss. 

3  L.  R.  A.  174,  PEOPLE  ex  rel.  THIRD  AVE.  R.  CO.  v.  NEWTON,  112  N.  Y.  396r 
19  N.  E.  831. 

Order  of  general  term   (56  Hun,  539,  9  N.  Y.  Supp.  833)    refusing  mandamus 
to  commissioner  of  public  works  to  compel  issuance  of  permit  to  open  streets  in 
order  to  introduce  cable  system,  under  authority  of  Laws   1889,  chap.  531,  re- 
versed in  121  N.  Y.  536,  9  L.  R.  A.  124,  24  N.  E.  951. 
Construction   of   Resolutions   of   December   18,    1852. 

Cited  in  New  York  v.  Third  Ave.  R.  Co.  117  N.  Y.  408,  22  N.  E.  755,  holding 
modern  car  included  within  license  tax  on  "coaches." 
General    railroad    act    of    185O. 

Distinguished  in  Re  Washington  Street  Asylum  &  P.  R.  Co.  115  N.  Y.  445,  22 
N.  E.  356,  holding  act  allows  incorporation  of  street  railroads  thereunder  except 
in  New  York  city. 
Remedy   of    mandamus. 

Cited  in  People  ex  rel.  Larkin  v.  Palmer,  27  Misc.  572,  59  N.  Y.  Supp.  62,  hold- 
ing writ  will  not  issue  to  compel  recount  of  election  ballots  where  petition  not 
show  grievance  by  proper  affidavit;  Nassau  Electric  R.  Co.  v.  \Vhite,  12  Misc.  633, 
34  N.  Y.  Supp.  960,  holding  injunction  will  not  issue  to  restrain  commissioner  of 
city  works  from  interfering  with  opening  of  street  for  purpose  of  laying  tracks, 
where  such  not  begun;  Lauritsen  v.  Seward,  99  Minn.  325,  109  N.  W.  404.  hold- 
ing an  election  contest,  which  involves  charges  of  fraud,  illegal  voting,  and  the 
legality  of  the  election,  cannot  be  determined  in  mandamus  proceedings;  People 
ex  rel.  Geneva  v.  Geneva,  W.  S.  F.  &  C.  L,  Traction  Co.  112  App.  Div.  588,  98 
N.  Y.  Supp.  719,  holding  mandamus  proper  remedy  for  municipality  to  compel 
street  railway  to  change  its  tracks  when  necessary  for  street  improvements. 
Inquiry  sun  sponte  into  rights  of  parties. 

Cited  in  People  ex  rel.  O'Brien  v.  Keating,  55  App.  Div.  562,  67  N.  Y.  Supp. 
413   (dissenting  opinion),  as  to  right  to  determine  as  to  legality  and  propriety  of 
act  sought  to  be  done,  on  application  for  mandamus. 
Grant   of   privileges. 

Cited  in  Hudson  River  Teleph.  Co.  v.  Watervliet  Turnp.  &  R.  Co.  56  Hun.  71,  & 
N.  Y.  Supp.  177,  holding  exclusive  privilege  to  place  electric  wires  in  street  not 
inferred  in  absence  of  specific  grant;  Rhinehart  v.  Redfield,  93  App.  Div.  416, 
87  N.  Y.  Supp.  789,  upholding  common  council's  grant  of  right  to  lay  pipes  in 
street  to  supply  gas  for  refrigerating  purposes;  Indianapolis  Cable  Street  R.  Co. 
v.  Citizens  Street  R.  Co.  127  Ind.  393,  8  L.  R.  A.  549,  24  N.  E.  1054,  holding 
change  from  horse  power  to  cable  not  permissible  under  ordinance  authorizing  use 
of  former  only;  St.  Michael's  P.  E.  Church  v.  Forty-Second  Street,  M.  &  St.  N. 
Ave.  R.  Co.  26  Misc.  605,  57  N.  Y.  Supp.  881,  holding  change  from  horse  power 
to  electricity  not  allowable  without  conformity  to  provisions  of  Laws  1890,  chap. 
565;  Citizens'  Street  R.  Co.  v.  Africa,  100  Tenn.  44,  42  S.  W.  485,  holding  discre- 


445  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.RJL  181 

tion  allowed  commercial  railway  in  adapting  route  to  topography  of  county  not 
available  to  city  railway  under  charter  specifying  particular  route;  Still  water  & 
M.  Street  R.  Co.  v.  Boston  &  M.  R,  Co.  72  App.  Div.  300,  76  N.  Y.  Supp.  69, 
holding  street  railroad  not  entitled  to  compel  steam  railroad  to  permit  connection 
for  facilitation  of  interchange  of  cars,  under  railroad  law  providing  for  such  in- 
terchanges between  "railroads;"  Louisville  Trust  Co.  v.  Cincinnati,  73  Fed.  727. 
holding  right  to  operate  road  in  perpetuity  not  implied  in  absence  of  express 
grant;  State  ex  rel.  Jacksonville  v.  Jacksonville  Street  R.  Co.  29  Fla.  612,  10  So. 
590,  holding  street  railway  bound  to  pave  space  between  tracks,  under  ordinance 
requiring  it  to  keep  same  in  as  good  "repair"  and  condition  as  rest  of  street; 
Re  Rochester  &  L.  O.  R.  Co.  51  App.  Div.  67,  64  N.  Y.  Supp.  429,  holding  omis- 
sion of  words  "in  value"  from  amendment  of  railroad  law,  not  intended  to  compel 
railroad  to  secure  consent  of  owners  of  one  half  lineal  foot  frontage  of  abutting 
property  to  change  of  motive  power;  New  York  v.  Interborough  Rapid  Transit 
Co.  55  Misc.  144,  106  N.  Y.  Supp.  296;  New  York  v.  Interborough  Rapid  Transit 
Co.  125  App.  Div.  446,  109  N.  Y.  Supp.  885;  Aurora  v.  Elgin,  A.  &  S.  Traction 
€o.  227  111.  498,  118  Am.  St.  Rep.  284,  81  N.  E.  544,— holding  nothing  passes  by 
mere  implication  against  the  public;  Mallory  v.  Saratoga  Lake  Bridge  Co.  53 
Misc.  447,  104  N.  Y.  Supp.  1025,  holding  right  of  bridge  company  to  collect  toll 
limited  to  vehicles  specified  in  its  charter. 

Distinguished  in  Hudson  River  Teleph  Co.  v.  Watervliet  Turnp.  A  R.  Co.  135 
N.  Y.  405,  17  L.  R.  A.  679,  31  Am.  St.  Rep.  838,  32  N.  E.  148,  holding  that  adop- 
tion and  use  of  horse  power  does  not  prevent  change  to  electricity,  under  statute 
authorizing  use  of  any  power  other  than  steam. 
Use   of  streets. 

Cited  in  Cumberland  Teleg.  &  Teleph.  Co.  v.  United  Electric  R.  Co.  93  Tenn. 
529,  27  L.  R.  A.  245,  29  S.  W.  104  (dissenting  opinion),  as  to  whether  use  of 
streets  by  electric  railway  imposes  an  additional  servitude;  Kinsey  v.  Union 
Traction  Co.  169  Ind.  633,  81  N.  E.  922  (dissenting  opinion),  as  to  whether  run- 
ning interurban  cars  on  streets  is  an  additional  burden. 

Cited  in  footnote  to  Theobold  v.  Louisville,  N.  0.  &  T.  R.  Co.  4  L.  R.  A.  735. 
which  holds  steam  railroad  cannot  be  operated  in  street  without  condemnation  or 
consent  of  abutting  owners. 

Cited  in  notes  (5  L.  R.  A.  371,  8  L.  R.  A.  453)  on  right  to  construct  and  operate 
railroad  in  street;  (8  L.  R.  A.  539)  on  electric  railways  in  city  streets;  (9  L.  R. 
A.  101)  on  use  of  streets  in  municipalities;  (4  L.  R.  A.  624)  on  rights  of  abutters 
on  street;  (4  L.  R,  A.  785)  on  right  of  eminent  domain;  (13  L.  R.  A.  75)  on  lia- 
bility of  street  car  company  for  injury  to  pedestrians;  (25  Am.  St.  Rep.  479 » 
on  right  of  street  railway  to  adopt  new  improvements. 

3  L.  R.  A.  181,  STATE  v.  COOLER,  30  S.  C.  105,  8  S.  E.  692. 
Ex    post    facto   laws. 

Cited  in  State  v.  Richardson,  47  S.  C.  174,  35  L.  R.  A.  240,  25  S.  E.  220,  holding 
trial  for  larceny  under  provisions  of  Constitution  adopted  subsequent  to  offense 
permissible;  State  v.  Loftis,  49  S.  C.  445,  27  S.  E.  451,  holding  trial  under  either 
act  in  force  at  time  of  offense  or  act  subsequently  passed  allowable  where  offense 
and  punishment  same;  Sage  v.  State,  127  Ind.  19,  26  N.  E.  667,  holding  statute 
making  accessories  principals,  but  not  altering  either  crime  or  punishment,  not 
ex  post  facto;  State  v.  Haddon,  49  S.  C.  316,  27  S.  E.  194,  holding  punishment 
for  rape  not  altered  by  amendment  providing  punishment  for  carnal  knowledge  of 
woman  child  under  fourteen;  People  v.  Green,  201  N.  Y.  182,  94  N.  E.  658,  Ann. 
Cas.  1912  A.  884.  holding  that  legislature  can  confer  on  existing  court  jurisdiction 
to  try  homicide  committed  before  act  took  effect. 


I 


3  L.R.A.  181]  L.  R.  A.  CASES  AS  AUTHORITIES.  446 

Cited  in  footnotes  to  Ex  parte  Larkins,  11  L.  R.  A.  418,  which  holds  act  keep- 
ing existing  laws  in  force  not  ex  post  facto;  People  v.  Hayes,  23  L.  R.  A.  830, 
which  holds  change  in  statute  authorizing  lighter  punishment  not  ex  post  facto 
law;  State  v.  Kyle,  56  L.  R.  A.  115,  which  sustains  statute  authorizing  prose- 
cution by  information  for  crimes  already  committed;  People  ex  rel.  Chandler  v. 
McDonald,  29  L.  R.  A.  834,  which  holds  statute  not  ex  post  facto  for  abrogating 
provision  for  change  of  magistrate  or  of  venue  for  prejudice;  Re  Tyson,  6  L.  R. 
A.  472,  which  holds  law  substituting  penitentiary  for  jail  not  ex  post  facto; 
French  v.  Deane,  24  L.  R.  A.  387,  which  holds  void  act  giving  right  to  punitive 
damages  as  to  existing  cause  of  action. 

Cited  in  note  (37  Am.  St.  Rep.  595)  on  ex  post  facto  laws. 
Jurisdiction    of   justice    of    peace. 

Cited  in  State  v.  Johnson,  45  S.  C.  488,  23  S.  E.  619,  holding  court  of  sessions 
has  no  jurisdiction  of  charge  of  theft  of  property  valued  at  $5;  State  v.  Pickett, 
47  S.  C.  105,  25  S.  E.  46,  holding  offense  of  transporting  liquors  within  exclusive 
jurisdiction  of  justice  of  peace. 

Distinguished  in  State  v.  Wolfe,  61  S.  C.  28,  39  S.  E.  179,  holding  exclusive 
jurisdiction  of  justice  of  peace  not  inferable  under  Const.   1895,  where  not  ex- 
pressly conferred  by  statute. 
Disqualification    of    juror. 

Cited  in  note  (18  L.  R.  A.  474)  on  disqualification  of  juror  as  ground  for  new 
trial. 

3  L.  R.  A.  184,  JOY  v.  BITZER,  77  Iowa,  73,  41  N.  W.  575. 
Damages   for  breach   of   warranty. 

Cited  in  Love  v.  Ross,  89  Iowa,  403,  56  N.  W.  528,  holding  value  of  services  of 
stallion  not  recoverable  in  action  for  breach  of  warranty  of  potency;  Short  v. 
Matteson,  81  Iowa,  640,  47  N.  W.  874,  holding  extra  expense  incurred  in  keeping 
stallion  for  breeding  purposes  recoverable  in  action  for  breach  of  warranty  of 
potency;  Brush  v.  Smith,  111  Iowa,  219,  82  N.  W.  467,  holding  measure  of  dam- 
ages on  sale  of  diseased  hogs,  same  under  count  on  breach  of  warranty  and  under 
count  on  fraudulent  representations;  Goring  v.  Fitzgerald,  105  Iowa,  512,  75  N. 
W.  358,  holding  damages  recoverable  against  vendor  of  judgment  for  lack  of  title 
thereto,  without  return  of  mortgage  security  subsequently  given  by  vendor:  Mai- 
lory  Commission  Co.  v.  Elwood,  120  Iowa,  635,  95  N.  W.  176,  discussing  without 
deciding,  whether  special  damages  are  recoverable  in  action  for  breach  of  war- 
ranty; Larson  v.  Calder,  16  N.  D.  255,  113  N.  W.  103;  Cummins  v.  Ennis.  4  Penn. 
(Del.)  428,  56  Atl.  377, — holding  in  action  for  breach  of  warranty  on  sale  of 
diseased  cow  where  the  disease  was  communicated  to  other  cattle  the  measure  of 
damages  was  the  difference  between  the  actual  value  of  the  diseased  cow  and  what 
its  value  would  have  been  at  time  of  sale  had  it  been  sound,  together  with  loss 
suffered  by  reason  of  infection  of  other  cattle;  Mitchell  v.  Pinckney,  127  Iowa. 
700,  104  N.  W.  286,  holding  where  in  an  action  for  breach  of  warranty  on  the 
sale  of  cattle,  an  instruction  that  plaintiff  was  entitled  to  fair  and  reasonable 
compensation  for  loss  sustained  to  his  other  cattle  as  a  direct  and  natural  conse- 
quence of  diseased  condition  of  cattle  sold  him  by  defendant,  not  error. 

Cited  in  notes   (34  L.R.A.  (N.S.)   698,  699)   on  damages  recoverable  for  selling 
diseased  animals;    (6  Eng.  Rul.  Cas.  624)   on  damages  recoverable  for  breach  of 
warranty. 
Warranty    on    sale    of    chattel. 

Cited  in  footnotes  to  Olson  v.  Port  Huron  Live-Stock  Asso.  33  L.  R.  A.  557, 
which  holds  pregnancy  of  ewes  in  October  not  breach  of  contract  to  deliver  in 


447  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  189 

"healthy  condition;"  Holmes  v.  Tyson,  15  L.  R.  A.  209,  which  holds  statement  that 
horse  is  kind,  sound,  and  gentle  not  warranty. 

Cited  in  notes   (6  L.  R.  A.  375)   on  express  warranty  on  sale  of  goods;    (15  L. 
R.A.  795)   on  effect  of  representing  things  sold  to  be  "good;"   (32  L.R.A.(N.S.) 
185)  on  what  amounts  to  breach  of  warranty  of  soundness  of  horse;  (6  Eng.  Rul. 
Cas.  503)   on  warranty  on  sale  of  chattle. 
Identification   of  record   on  appeal. 

Cited  in  Smith  v.  Brown,  123  Iowa,  115,  98  N.  W.  567,  refusing  to  hear  case  de 
novo  where  there  is  a  discrepancy  in  title  of  appealed  case. 
Liability   for  causing-  spread  of  disease. 

Cited  in  note  (36  Am.  St.  Rep.  831)  on  liability  for  damages  for  causing  spread 
of  disease. 

3  L.  R.  A.  188,  ABRAHAM  v.  NORTH  GERMAN  F.  INS.  CO.  37  Fed.  731. 
Service   on   attorney. 

Cited  in  note  (50  Am.  St.  Rep.  740)  on  service  of  process  on  attorneys  for  new 
parties. 

Distinguished   in   Shainwald  v.   Davids,   69   Fed.   702,  holding  service  on  law 
firm  retained  by  nonresident  party,  not  permissible  in  ancillary  writ  which  as 
to  party  served  is  original  proceeding. 
Auxiliary   equitable   relief. 

Cited  in  Rosenbaum  v.  Council  Bluffs  Ins.  Co.  3  L.  R.  A.  191,  37  Fed.  725,  hold- 
ing diverse  citizenship  essential  to  jurisdiction  of  Federal  court  in  equity  not  nec- 
essary where  proceeding  is  merely  auxiliary  action  at  law  of  which  jurisdiction 
exists. 
Action   on  policy  as  bar  to  reformation. 

Cited  in  note  (12  L.R.A.(N.S.)  909)  on  action  on  policy  as  bar  to  action  to 
reform  it. 

/ 
3  L.  R.  A.  189,  ROSENBAUM  BROS.  v.  COUNCIL  BLUFFS  INS.  CO.  37  Fed. 

724. 
Jurisdiction In    auxiliary    proceeding1. 

Cited  in  Leigh  v.  Kewanee  Mfg.  Co.  127  Fed.  992,  sustaining  Federal  court's 
power  to  enjoin  action  at  law  pending  in  that  court. 

Cited  in  footnote  to  Abraham  v.  North  German  F.  Ins.  Co.  3  L.  R.  A.   188, 
which  holds  service  on  attorney  for  defendant  in  an  action  at  law  on  policy  binds 
defendant  in  auxiliary  suit  to  reform  policy. 
—  In   removal   of  canse. 

Cited  in  note  (11  L.  R.  A.  568)  on  removal  of  cause  by  foreign  corporation 
for  local  prejudice  or  influence. 

Distinguished  in  Laird  v.  Indemnity  Mut.  Marine  Assur.  Co.  44  Fed.  712.  hold- 
ing Federal  courts  have  no  jurisdiction  under  act  of  1887  in  action  to  recover  on 
chose  in  action  commenced  in  state  court,  where  plaintiff's  assignor  and  defendant 
are  both  aliens  and  no  Federal  question  involved. 
Relief  from  miNtake. 

Cited  in  notes  (5  L.  R.  A.  712)  on  reformation  of  insurance  policy  (5  L.  R. 
A.  153)  on  relief  obtainable  in  equity  in  case  of  mistake;  (11  L.  R.  A.  857)  on 
mistake  in  written  contract;  relief  for:  (12  L.  R.  A.  274)  on  equity  jurisdiction 
to  correct  mistakes  in  contracts;  (28  L.R.A.(X.S.)  891,  896)  on  relief  from  mis- 
take of  law  as  to  effect  of  instrument;  (37  L.  ed.  U.  S.  457)  on  correction  in  equi- 
ty of  mistakes  in  insurance  policies. 


3  L.R.A.  189]  L.  R.  A.  CASES  AS  AUTHORITIES.  448 

Stipulation    limiting    time    for    suit. 

Cited  in  note  (47  L.  R.  A.  712)  as  to  when  stipulation  limiting  time  for  suit 
on  insurance  policy  begins  to  run. 
Action  on  policy  as  bar  to  reformation. 

Cited  in  note  (12  L.R.A.(N.S.)  909)  on  action  on  policy  as  bar  to  action  to 
reform  it. 

3  L.  R.  A.  192,  WINDSOR  SAV.  BANK  v.  McMAHON,  38  Fed.  283. 
United    States   courts. 

Cited  in  footnote  to  Wonderly  v.  Lafayette  County,  45  L.  R.  A.  386,  which  sus- 
tains suit  in  state  court  to  set  aside  Federal  judgment  obtained  by  fraudulent  pre- 
tense of  diverse  citizenship. 

Cited  in  note    (40  L.R.A.  (N.S.)    405)    on  questions  of  state  law  as  to  which, 
state  court  decisions  must  be  followed  in  actions  originating  in,  or  removed  to, 
Federal  courts. 
Matters    relating    to    negotiability    of    commercial    paper. 

Cited  in  Nicely  v.  Commercial  Bank,  15  Ind.  App.  566,  57  Am.  St.  Rep.  245, 
44  N.  E.  572;  Nicely  v.  Winnebago  Nat.  Bank,  18  Ind.  App.  36,  47  N.  E.  476; 
Culbertson  v.  Nelson,  93  Iowa,  190,  27  L.  R.  A.  226,  57  Am.  St.  Rep.  266,  61  N. 
W.  854;  Flagg  v.  School  Dist.  No.  70,  4  N.  D.  37,  25  L.  R.  A.  367,  58  N.  W.  499, 
— holding  instrument  providing  for  payment  of  exchange,  besides  principal  and  in- 
terest, not  negotiable;  Hope  v.  Barker,  43  Mo.  App.  633,  holding  note  providing 
for  payment  of  10  per  cent  interest  from  date  if  principal  not  paid  on  maturity, 
negotiable;  Brooks  v.  Struthers,  110  Mich.  576,  35  L.  R.  A.  543,  68  N.  W.  272, 
holding  mortgage  securing  note  referred  to  therein  providing  for  payment  of  all 
taxes  on  lands  and  mortgage  destroys  negotiability. 

Cited  in  notes  (8  L.  R.  A.  394)  oh  stipulations  and  agreements  which  destroy 
negotiability;  (27  L.  R.  A.  224)  on  provisions  for  exchange  as  affecting  nego- 
tiability; (12  L.R.A.  683)  on  holders  of  negotiable  instruments;  (125  Am.  St. 
Rep.  212)  on  agreements  and  conditions  destroying  negotiability. 

Disapproved  in  Hastings  v.  Thompson,  54  Minn.  187,  21  L.  R.  A.  179,  40  Am. 
St.  Rep.  315,  55  N.  W.  968,  holding  note  for  payment  of  specific  sum  of  money 
"with  current  rate  of  exchange"  negotiable. 

3  L.  R.  A.  194,  CHAUVIN  v.  VALITON,  8  Mont.  451,  20  Pac.  658. 
Notice   as   affecting   constitutionality. 

Cited  in  Modern  Loan  Co.  v.  Police  Ct.  12  Cal.  App.  592,  108  Pac.  56,  holding 
one  in  the  possession  of  personal  property  under  claim  of  right  cannot  be  de- 
prived thereof  without  due  process  of  law,  to  satisfy  which  there  must  be  notice 
of  the  time  and  place  of  hearing  and  opportunity  to  be  heard. 

Cited  in  footnotes  to  Branson  v.  Gee,  24  L.  R.  A.  355,  which  holds  act  author- 
izing taking  of  gravel  from  private  lands,  without  notice,  for  highway  repairs, 
valid;  Davis  v.  St.  Louis  County,  33  L.  R.  A.  432,  which  holds  void,  act  author- 
izing location  and  marking  of  section  corners  without  notice  to  persons  to  be 
assessed  for  cost  of  same. 

Distinguished  in  Newman  v.  People,  23  Colo.  307,  47  Pac.  278,  holding  person 
cannot  assail  constitutionality  of  law,  whose  right  it  does  not  affect. 
Due   process   of   law. 

Cited  in  Hodge  v.  Muscatine  County,  121  Iowa,  491,  96  N.  W.  968,  sustaining 
validity  of  statute  for  collection  of  tax  by  summary  proceedings;  Spratt  v.  Helena 
Power  Transmission  Co.  37  Mont.  95,  94  Pac.  631,  holding  act  relating  to  eminent 
domain  proceeding  providing  for  examination  of  land  by  commissioners  where 
right  of  appeal  is  given  not  taking  property  without  due  process  of  law;  Hubbell 


*49  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  199 

v.  Higgins,  148  Iowa,  46,  126  N.  W.  914,  Ann.  Gas.  1912  B,  822;  State  v.  Mc- 
Farland,  60  Wash.  105,  140  Am.  St.  Rep.  909,  110  Pac.  792,— upholding  law  for 
inspection  of  hotels;  Cunningham  v.  Northwestern  Improv.  Co.  44  Mont.  218,  119 
Pac.  554,  upholding  law  providing  scheme  for  insurance  of  miners. 

Cited  in  footnotes  to  Carleton  v.  Rugg,  5  L.  R.  A.  193,  which  holds  statute 
authorizing  injunction  against  liquor  nuisance  does  not  unlawfully  deprive  of 
property  or  privileges;  Gulf,  C.  &  S.  P.  R.  Co.  v.  Ellis,  17  L.  R.  A.  286,  which 
holds  valid,  act  authorizing  attorneys'  fees  against  railroad  corporations  in 
suits  on  claims;  McConnell  v.  McKillip,  65  L.R.A.  611,  which  holds  void  statute 
authorizing  game  warden  to  seize  and  forfeit  to  state  without  hearing  all  guns, 
dogs,  decoys,  fishing  tackle,  etc.,  used  by  unlicensed  person  hunting  or  fishing. 

Cited  in  notes  (4  L.  R.  A.  724,  5  L.  R.  A.  359,  11  L.  R.  A.  225,  and  13  L.  R.  A. 
68)  on  due  process  of  law;  (20  Am.  St.  Rep.  557)  on  due  process  of  law. 

Distinguished  in  Hodge  v.  Muscatine  County,  121  Iowa,  491,  67  L.R.A.  628,  104 
Am.  St.  Rep.  304,  holding  taxes  imposed  as  a  deterrent  against  the  transaction 
of  a  certain  business  need  not  be  collected  through  judicial  proceedings  but  may 
be  enforced  by  distraint  or  tax  sale;  Kaiser  Land  &  Fruit  Co.  v.  Curry,  155  Cal. 
655,  103  Pac.  341,  holding  license  fee  imposed  upon  corporation  for  privilege  of 
doing  business  not  taking  of  its  property  without  due  process  of  law;  J.  B.  Mullen 
&  Co.  v.  Moseley,  13  Idaho,  467,  12  L.R.A.(N.S.)  399,  121  Am.  St.  Rep.  277,  90 
Pac.  986,  33  A.  &  E.  Ann.  Cas.  450,  holding  a  "slot  machine"  incapable  of  use  for 
any  purpose  except  in  violation  of  penal  provisions  of  the  anti-gambling  law  is 
not  property  within  meaning  of  Constitution  which  provides  that  no  person  shall 
be  deprived  of  his  property  without  due  process  of  law. 
Measure  of  damages. 

Cited  in  Ocala  Foundry  &  Mach.  Works  v.  Lester,  49  Fla.  210,  38  So.  51,  holding 
damages  which  are  not  the  natural  and  usual  consequences  of  an  illegal  deten- 
tion of  personal  property,  but  which  arise  only  because  of  unusual  and  special 
circumstances  cannot  be  recovered  under  general  allegations  of  damage,  the 
special  circumstances  must  be  alleged. 

Cited  in  footnote  to  Woods  v.  Nichols,  48  L.  R.  A.  773,  which  holds  measure  of 
recovery  in  trover  by  one  retaining  title  as  security  for  purchase  price,  limited 
to  balance  due  less  depreciation  by  use. 

3  L.  R.  A.  199,  DUNN  v.  STATE,  82  Ga.  27,  8  S.  E.  806. 
Sale   and    delivery   of   personal    property. 

Cited  in  Atlantic  Phosphate  Co.  v.  Ely,  82  Ga.  440,  9  S.  E.  170,  holding  order 
by  letter  for  fertilizer  shipped  from  point  outside  state  sale  outside  state; 
Falvey  v.  Richmond,  87  Ga.  101,  13  S.  E.  261,  holding  goods  ordered  shipped  from 
point  outside  state  delivered  to  purchaser  when  delivered  to  carrier;  Loud  v. 
Pritchett,  104  Ga.  653,  30  S.  E.  870,  holding  standing  trees  delivered  when 
vendee  goes  upon  land  and  commences  felling  them ;  Tift  v.  Wright  &  W.  Co. 
113  Ga.  681,  39  S.  E.  503,  holding  setting  aside  a  quantity  of  oats  and  marking 
in  name  of  buyer  as  ordered,  and  charging,  constructive  delivery;  Swanke  v. 
McCarty,  81  Wis.  112,  51  N.  W.  92,  delivery  to  common  carrier  at  place  of 
manufacture  delivery  to  buyer,  where  contract  is  silent  as  to  place  of  delivery; 
State  v.  Wingfield,  115  Mo.  437,  37  Am.  St.  Rep.  406,  22  S.  W.  363,  and 
Scharff  v.  Meyer,  133  Mo.  444,  54  Am.  St.  Rep.  672,  34  S.  W.  858,  holding  as  a 
general  rule  delivery  to  carrier  equivalent  to  delivery  to  purchaser;  State  v. 
American  Exp.  Co.  118  Iowa,  450,  92  N.  W.  66,  upholding  seizure  of  liquors 
shipped  by  express  into  state  C.  0.  D.;  State  v.  Shields,  110  La.  555,  34  So.  673, 
holding  contract  for  sale  of  whisky,  without  identifying  kind  to  be  selected  from 
stock  in  another  parish,  not  sale;  Moore  v.  State,  126  Ga.  417,  55  S.  E.  327,  hold- 
L.R.A.  Au.  Vol.  I.— 29. 


3  L.R.A.  199]  L.  R.  A.  CASES  AS  AUTHORITIES.  450 

ing  delivery  of  intoxicating  liquors  presumably  made  where  order  was  received; 
Cureton  v.  State,  136  Ga.  94,  70  S.  E.  786,  holding  sale  made  in  state  where  orders 
sent  from  another  state  are  filled  and  liquors  shipped;  Keller  v.  State  (Tex. 
Crim.  Rep.)  1  L.R.A.(N.S.)  495,  87  S.  W.  669;  Merriweather  v.  State,  48  Tex. 
Grim.  Rep.  82,  86  S.  W.  332;  State  v.  Rosenberger,  212  Mo.  654,  20  L.R.A. 
(X.S.)  285,  126  Am.  St.  Rep.  580,  111  S.  W.  509, — holding  where  intoxicating 
liquors  are  ordered  to  be  shipped  to  the  purchaser  C.  O.  D.  the  sale  is  completed 
where  the  liquor  is  delivered  to  the  carrier  and  the  dealer  is  not  guilty  of  selling 
liquor  at  place  of  destination;  Anglin  v.  State,  96  Miss.  222,  50  So.  728,  holding 
that  sale  was  made  in  state  where  delivered,  though  contract  to  purchase  was 
made  personally  and  price  paid  in  advance  in  another  state. 

Cited  in  footnotes  to  Anderson  v.  Crisp,  18  L.  R.  A.  419,  which  holds  that 
contract  for  sale  of  certain  r.umber  of  unsegregated  brick  to  be  taken  from  kiln 
does  not  pass  title;  H.  M.  Tyler  Lumber  Co.  v.  Charlton,  55  L.  R.  A.  301,  which 
holds  that  title  does  not  pass  by  acceptance  of  offer  to  sell  lumber  piled  at  mill 
to  be  inspected  by  common  employee;  State  v.  Cairns,  58  L.  R.  A.  55,  which 
denies  guilt  of  express  company's  agent  delivering  to  consignee  goods  sent 
C.  0.  D.  with  reason  to  believe  they  are  liquors;  Conrad  v.  Fisher,  8  L.R.A.  147. 
which  holds  lien  for  goods  sold,  not  lost  by  constructive  delivery  if  actual  custody 
retained  by  vendor  or  his  agent;  Feeley  v.  Boyd,  65  L.R.A.  943,  which  holds  im- 
mediate delivery  followed  by  actual  and  continued  change  of  possession  of  fruit 
in  bins  shown  by  purchaser  sending  representative  the  same  evening  to  take 
possession,  and  sending  man  the  next  morning  to  prepare  for  shipment. 

Cited  in  notes  ( 12  L.  R.  A.  821 )  on  sales  as  affected  by  oral  conditions  sub- 
sequent; (17  L.  R.  A.  178)  as  to  when  sale  is  completed;  (17  L.  R.  A.  179)  on 
property  vesting  in  purchaser  on  delivery  to  carrier;  (17  L.  R.  A.  180,  181)  on 
property  passing  when  nothing  remains  to  be  done;  (22  L.  R.  A.  425)  on  passing 
of  title  to  property  by  delivery  thereof  to  a  carrier  for  transportation  to  con- 
signee or  vendee;  (17  L.  R.  A.  180)  on  prohibitory  laws;  (4  L.  R.  A.  835)  on 
sale  of  spirituous  liquor  by  drummer  in  nonlicense  county;  (61  L.  R.  A.  419,  425) 
on  conflict  of  laws  as  to  sales  of  intoxicating  liquors;  (26  L.R.A. (X.S.)  2)  on 
sufficiency  of  selection  or  designation  of  goods  sold  out  of  larger  lot;  (17  Am. 
St.  Rep.  773)  on  time  for  consummation  of  sale  of  whiskey;  (55  Am.  St.  Rep.  49) 
on  place  of  contract  for  sale  of  personal  property. 

Distinguished  in  Bagby  v.  State,  82  Ga.  787,  9  S.  E.  721,  holding  sale  of 
liquor  ordered  by  letter  takes  place  in  county  where  ordered  to  be  delivered, 
when  there  delivered;  Newsome  v.  State,  1  Ga.  App.  793,  58  S.  E.  71,  holding  a 
liquor  dealer,  who  in  one  county  receives  by  mail  an  order  for  intoxicating  liquor 
from  a  minor  in  another  county  and  who  fills  the  order  by  shipping  the  liquor 
by  express -to  the  latter  county,  where  it  is  delivered  to  the  minor,  may  be  in- 
dicted and  punished  in  either  county  for  violation  of  statute;  Smith  v.  State,  127 
Ga.  44.  56  S.  E.  73.  holding  under  law  prohibiting  soliciting  sales  of  liquor  in  dry 
counties  the  question  as  to  whether  accused  acted  as  agent  for  buyer  or  merely 
pretended  to  cover  illegal  sale  was  question  for  jury. 

3  L.  R.  A.  201,  POWELL  v.  OREGONIAN  R.  CO.  13  Sawy.  543,  38  Fed.  187. 
.J 11  <1  it  111  fiit    as   conclusive    evidence    of    ciefot    of   corporation. 

Cited  in  McVickar  v.  Jones,  70  Fed.  759.  holding  plaintiff  need  not  set  forth 
cause  of  action,  the  basis  of  judgment  upon  which  he  sues  stockholder;  Hale 
v.  Harden,  37  C.  C.  A.  251,  95  Fed.  758,  holding  judgment  against  corporation 
conclusive  against  stockholder  without  notice,  as  to  fact  of  indebtedness. 

Cited  in  note  (97  Am.  St.  Rep.  464)  on  effect  as  against  stockholders  of  judg- 
ment against  corporation. 


451  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  203 

Distinguished  in  Audenricd  v.  East  Coast  Mill.  Co.  68  X.  J.  Eq.  461,  59  Atl.  577, 
holding  in  an  action  against  the  directors  of  a  corporation  to  enforce  an  alleged 
liability  as  a  creditor  of  the  corporation  under  general  corporation  act,  a  judgment 
obtained  against  the  corporation  of  which  defendant  was  director  as  for  breach 
of  a  syndicate  agreement  under  which  both  complainant's  and  defendant's  cor- 
porations were  to  be  consolidated  is  not  conclusive  as  to  debt  sued  on,  where  it 
was  obtained  in  another  jurisdiction,  and  the  only  plea  interposed  was  to  the 
jurisdiction  of  the  court. 
Statute  of  limitations. 

Cited  in  Hawkins  v.  Donnerberg,  40  Or.  104,  66  Pac.  691,  holding  creditors 
cannot  collect  unpaid  subscriptions  to  capital  stock  when  corporation's  right  to 
do  so  is  barred;  Kilton  v.  Providence  Tool  Co.  22  R.  I.  611,  48  Atl.  1039,  holding 
statute  of  limitations  does  not  run  against  creditor  until  his  right  of  action 
accrues;  Williams  v.  Commercial  Nat.  Bank,  49  Or.  503,  11  L.R.A.(X.S.)  862,  90 
Pac.  1012,  holding  in  a  proceeding  in  the  nature  of  a  creditor's  bill  to  read  the 
assets  of  a  liquidated  corporation  placed  beyond  the  reach  of  legal  process  in 
fraud  of  creditor,  the  statute  of  limitations  does  not  begin  to  run  until  the  return 
of  execution  nulla  bona  upon  plaintiff's  judgments  against  corporation. 

Cited  in  footnotes  to  Swearingen  v.  Sewickley  Dairy  Co.  53  L.  R.  A.  471,  which 
holds  limitation  runs  against  stockholder's  liability  from  time  of  insolvency  of 
corporation;  Citizen's  Xat.  Bank  v.  Lucas,  56  L.  R.  A.  812,  which  holds  limita- 
tion runs  against  action  on  judgment  from  time  of  rendition;  West  v.  Topeka 
Sav.  Bank,  63  L.R.A.  137,  which  holds  that  statute  of  limitations  does  not  begin 
to  run  against  stockholder's  liability  for  instalment  of  subscription  until  a  call 
is  made;  Bennett  v.  Thome,  68  L.R.A.  113,  which  holds  that  liability  imposed  on 
stockholders  of  insolvent  bank  accrues  at  time  of  insolvency. 

Cited  in  notes  (1  L.R.A.(X.S.)   913)   on  running  of  limitations  against  unpaid 
balance  of  stock  subscription;   (96  Am.  St.  Rep.  975)  on  statute  of  limitations  in 
actions  against  corporate  officers  and  stockholders. 
Statutory  liability  of  stockholders  for  tort  debts. 

Cited  in  note  (22  L.R.A.(X.S.)  258)  as  to  whether  statutory  liability  for  debts 
of  corporation  includes  liability  for  torts. 

3  L.  R.  A.  203,  CARSOX  y.  DUXHAM,  149  Mass.  52,  14  Am.  St.  Rep.  397,  20 

N.  E.  312. 
Conflict   of   jurisdiction. 

Cited  in  Rodgers  v.  Pitt,  96  Fed.  670,  and  Craig  v.  Hoge,  95  Va.  280,  28  S.  E. 
317,  holding  that  first  of  two  courts  having  concurrent  jurisdiction,  to  acquire 
jurisdiction  of  case,  should  retain  it;  Bigelow  v.  Old  Dominion  Copper  Min.  & 
Smelting  Co.  74  N.  J.  Eq.  476,  71  Atl.  153,  holding  the  same;  Royal  League 
v.  Kavanagh,  233  111.  183,  84  N.  E.  178,  Affirming  134  111.  App.  87,  holding  a  court 
of  equity  of  Illinois  will  not  enjoin  a  defendant  from  prosecuting  a  suit  against 
a  complainant  in  a  foreign  state  upon  the  mere  ground  that  there  may  be  reason 
to  anticipate  a  difference  of  opinion  between  the  coiirts  of  the  two  states  and 
that  the  courts  of  the  foreign  state  may  give  defendant  a  better  remedy  than 
courts  of  Illinois;  Gordon  v.  Munn,  81  Kan.  541,  25  L.R.A.(N.S.)  919,  106  Pac. 
286,  holding  where  the  necessary  parties  are  before  a  court  of  equity,  it  is  im- 
material that  the  res  of  the  controversy  is  beyond  the  territorial  jurisdiction 
of  the  court,  and  it  has  power  to  compel  the  defendant  to  do  all  things  necessary, 
according  to  the  lex  loci  rei  sitae,  which  he  could  do  voluntarily  to  give  full  effect 
to  the  decree  against  him. 

Cited  in  footnote  to  Gay  v.  Brierfield  Coal  &  I.  Co.   16  L.  R.  A.  564,  which 


3  L.R.A.  203]  L.  R.  A.  CASES  AS  AUTHORITIES.  452 

holds  state  court  may  take  jurisdiction  of  creditors'  bill  to  attack  mortgage  on 
which  foreclosure  begun  in  Federal  court.        « 

Cited  in  notes  (5  L.  R.  A.  223)  on  retention  of  jurisdiction  by  court  first 
acquiring;  (21  L.R.A.  72,  75)  on  injunction  against  suit  in  foreign  jurisdiction; 
(69  L.R.A.  690)  on  jurisdiction,  of  equity  over  suits  affecting  realty  in  another 
state  or  county;  (7  L.R.A. (N.S.)  116)  on  jurisdiction  to  enjoin  acts  with  respect 
to  realty  in  another  state. 

3  L.  R.  A.  206,  CATLIN  v.  TRINITY  COLLEGE,  113  N.  Y.  133,  20  N.  E.  864. 
What    property    subject    to    collateral-inheritance    tax. 

Followed  in  Catlin  v.  Domestic  &  Foreign  Missionary  Soc.  113  N.  Y.  625,  20 
N.  E.  867,  deciding  same  question. 

Cited  in  Re  Van  Kleeck,  121  N.  Y.  703,  25  X.  E.  DO  (Reversing  55  Hun.  473, 
8  N.  Y.  Supp.  806),  holding  legacy  in  trust  to  bttild  new  church  liable  to  tax; 
Re  Prime,  136  N.  Y.  356,  18  L.  R.  A.  718,  32  X.  E.  1091  (Affirming  64  Hun, 
53,  18  X.  Y.  Supp.  603),  holding  legacy  to  board  of  foreign  missions  subject  to 
tax;  People  ex  rel.  Savings  Bank  v.  Coleman,  135  X.  Y.  235,  47  X.  Y.  S.  R.  879, 
31  X.  E.  1022  (Affirming  45  X.  Y.  S.  R.  138,  18  X.  Y.  Supp.  675),  holding  shares 
of  stock  held  by  foreign  savings  bank  as  part  of  surplus,  taxable;  Re  Lenox. 
31  X.  Y.  S.  R.  959,  9  X.  Y.  Supp.  895,  holding  legacy  to  Bible  society  subject 
to  succession  tax;  Re  Herr,  22  X.  Y.  S.  R.  906,  5  X.  Y.  Supp.  48,  holding  legacies 
to  almshouses,  not  exempt  by  charter  or  by  general  law,  liable  to  succession  tax; 
Re  Vanderbilt,  2  Connoly,  325,  10  X.  Y.  Supp.  239,  holding  legacy  to  a  domestic 
and  foreign  missionary  society  taxable;  Re  Jones,  1  Connoly,  128,  2  X.  Y.  Supp. 
671,  holding  legacy  to  a  mutual  benefit  association  subject  to  collateral-inheri- 
tance tax;  Re  Tuigg,  2  Connoly,  638,  15  X.  Y.  Supp.  548,  holding  legacy  to 
foreign  charitable  society  taxable;  Re  Wolfe,  2  Connoly,  618,  15  X.  Y.  Supp.  539, 
holding  legacies  to  church  and  museum  of  art  taxable;  Re  Foreign  Missions, 
58  Hun,  118,  11  X.  Y.  Supp.  310,  holding  legacy  to  board  of  foreign  missions 
not  exempt;  People  ex  rel.  Carrigan  v.  Board  of  Police,  3  Silv.  Ct.  App.  57, 
24  X.  E.  934,  holding  legacy  to  build  and  renovate  church  subject  to  tax;  Re 
Kavanagh,  24  X.  Y.  S.  R.  404,  5  X.  Y.  Supp.  676,  holding  legacy  to  a  missionary 
society  not  exempt;  Re  Vinot,  26  X.  Y.  S.  R.  611,  7  X.  Y.  Supp,  517,  holding 
property  of  nonresident  decedent  within  state  subject  to  tax;  Re  Huntington, 
168  X.  Y.  407,  61  X.  E.  643,  holding  legacies  to  certain  charitable  associations 
liable  to  tax;  People  ex  rel.  Delta  Kappa  Epsilon  Soc.  v.  Lawler,  74  App.  Div. 
558,  77  X.  Y.  Supp.  840,  holding  chapter  house  of  college  secret  society  partly 
used  for  boarding  house  for  members,  taxable;  United  States  v.  Perkins,  163 
U.  S.  630,  41  L.  ed.  289,  16  Sup.  Ct.  Rep.  1073,  holding  United  States  not  a 
corporation  within  act  exempting  bequests  from  tax;  State  v.  Alston,  94  Tenn. 
682,  28  L.  R,  A.  180,  30  S.  \V.  750,  upholding  act  imposing  privilege  tax  upon 
succession;  Minot  v.  Winthrop,  162  Mass.  126,  26  L.  R.  A.  265,  38  X.  E.  512. 
holding  legacy  to  religious  society  of  another  state  subject  to  tax  laws  of  state; 
Alfred  University  v.  Hancock,  69  X.  J.  Eq.  472,  46  Atl.  178,  holding  exemption 
did  not  apply  to  charitable  institution  located  without  state;  Re  Van  Kleeck, 
3  Silv.  Ct.  App.  57,  25  X.  E.  50,  holding  legacy  to  build  new  church  not  exempt. 

Cited  in  footnotes  to  Harvard  College  v.  Cambridge,  48  L.  R.  A.  547,  which 
holds  exempt  from  taxation  houses  occupied  by  college  presidents  and  professors 
and  dormitories  and  dining  halls  for  students;  Re  Swift,  18  L.  R.  A.  709,  as  to 
what  is  subject  to  succession  tax;  Brown  University  v.  Granger,  36  L.  R.  A.  847, 
which  holds  real  estate  constituting  part  of  endowment  of  Brown  University 
within  exemption  of  "College  Estate;"  State,  Singer  Mfg.  Co.,  Prosecutor,  v. 


453  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  210 

Heppenheimer,  32  L.  R.  A.  643,  which  holds  company  exempt  from  taxation  under 
exemption  of  its  shares. 

Cited  in  notes   (12  L.  R.  A.  405)   on  legislative  authority  to  impose  succession 
tax:    (4  L.R.A. 171)  on  succession  tax  as  tax  on  property;   (41  Am.  St.  Rep.  582) 
on  constitutionality  of  collateral  inheritance  tax  law. 
What   property   exempt. 

Cited  in  People  ex  rel.  Salvation  Army  v.  Feitner,  33  Misc.  714,  68  N.  Y. 
Supp.  338,  holding  real  property  of  Salvation  Army  exempt  from  taxation  though 
part  used  for  salesroom;  Re  Vassar,  127  N.  Y.  12,  27  N.  E.  394,  holding  be- 
quests to  certain  charitable  and  educational  institutions  exempt;  Re  Herr,  55 
Hun,  168,  7  N.  Y.  Supp.  852,  holding  legacy  to  a  house  of  industry  to  found 
orphan  farm  school  exempt;  Re  Vanderbilt,  2  Connoly,  324,  10  N.  Y.  Supp.  239, 
holding  legacy  to  hospital  exempt  by  charter  from  taxation  not  liable  to  tax; 
Re  Curtiss,  1  Connoly,  474,  7  N.  Y.  Supp.  207,  holding  legacy  to  a  hospital 
exempt  from  collateral-inheritance  tax. 

Cited  in  footnote  to  German  Gymnastic  Asso.  v.  Louisville,  65  L.R.A.  120,  which 
holds  institution  for  teaching  physical  culture  exempt  from  taxation. 

Cited  in  notes  (12  L.R.A.  852)  on  exemption  of  church  property  from  special 
assessment  under  exemption  from  taxes;  (17  L.R.A.(N.S.)  734)  on  right  of  chari- 
table, etc.  institution  to  exemption  from  taxation  as  affected  by  geographical  field 
of  operation;  (23  L.R.A. (N.S.)  1210)  on  applicability  of  general  tax  exemptions 
to  inheritance  or  succession  taxes;  (1  Brit.  Rul.  Cas.  883)  on  does  a  general  ex- 
emption from  taxation  comprehend  death  duties. 
Exclusive  jurisdiction. 

Cited  in  Weston  v.  Goodrich,  86  Hun,  202,  33  N.  Y.  Supp.  382,  and  Re 
Wolfe,  137  N.  Y.  210,  33  N.  E.  156  (Reversing  29  Abb.  N.  C.  346,  21  N.  Y. 
Supp.  515),  holding  surrogate's  determination  that  legacies  not  taxable  final. 

3  L.  R.  A.  209,  BROWNING'S  PETITION,  16  R.  I.  441,  16  Atl.  717. 
When   devise   vests   estate. 

Cited  in  Manchester's  Petition,  22  R.  I.  637,  49  Atl.  36,  holding  devise  to  one 
for  life  and  then  to  his  heirs  and  assigns  forever  vests  estate  in  fee  simple;  Green 
v.  Edwards,  31  R.  I.  8,  77  Atl.  188,  Ann.  Cas.  1912  B,  41;  Paine  v.  Sackett,  27 
R.  I.  304,  61  Atl.  753, — as  to  rule  in  Shelley's  Case  being  in  force  until  enactment 
of  Gen.  Laws  of  1896. 

Cited  in  footnotes  to  Glover  v.  Condell,  35  L.  R.  A.  360,  which  holds  ownership 
of  fund  subject  to  limitation,  over,  given  by  bequest  to  son  and  over  in  case  of 
his  death  without  living  heirs;  Grainger  v.  Grainger,  36  L.  R.  A.  186,  which 
holds  rule  in  Shelley's  Case  not  applicable  to  devise  to  one  for  life  and  after  hia 
death  to  heirs  of  his  body,  if  any  survive  him,  with  devise  over  otherwise; 
Starnes  v.  Hill,  22  L.  R.  A.  598,  which  holds  indefeasible  fee  not  vested  in  one 
to  whom  life  estate  given  with  estate  in  fee  to  his  "heirs;"  Wool  v.  Fleetwood, 
67  L.R.A.  445.  which  holds  fee  simple  vested  in  children  under  provision  in  will 
that  five  years  after  life  tenant's  death  they  shall  procure  the  property  to  be 
divided  between  them;  Doyle  v.  Andis,  69  L.R.A.  953,  which  holds  fee  simple 
\f r-tcd  in  first  taker  by  conveyance  to  one  "during  his  natural  life  and  then  to 
his  heirs." 

Cited  in  notes  (11  L.R.A.  672)  on  creation  of  estate  by  inheritance;  (10  Eng. 
Rul.  Cas.  758;  29  L.R.A.(N.S.)  1134,  1168)  on  rule  in  Shelley's  Case. 

3  L.  R.  A.  210,  KING  v.  STATE,  87  Tenn.  304,  10  S.  W.  509. 
Defendant's   rights   in   criminal   trial. 

Cited  in  footnotes  to  State  v.  Smith,  8  L.  R.  A.  774,  which  denies  right  to 


3  L.R.A.  210]  L.  R.  A.  CASES  AS  AUTHORITIES.  454 

determine  sickness  of  absent  juror  and  discharge  jury  in  defendant's  absence; 
State  v.  Cotts,  55  L.  R.  A.  176,  which  denies  new  trial  for  mere  separation  of 
jurors  remaining  in  care  of  deputies;  Gamble  v.  State,  60  L.  R.  A.  547,  which 
holds  mere  separation  of  jurors  in  capital  case,  not  ground  for  reversal;  People 
v.  Adams,  66  L.R.A.  247,  which  holds  one  convicted  of  crime  entitled  to  new  trial 
where  after  submission  of  case  to  jury  sheriff  locked  them  in  three  separate  rooms 
on  different  floors  of  hotel  for  night  instead  of  keeping  them  together  unless 
harmlessness  is  affirmatively  shown. 

Cited  in  notes  (5  L.  R.  A.  832,  836)  on  constitutional  rights  of  person  charged 
with  felony;   (11  L.  R.  A.  75)  on  change  of  venue  in  criminal  cases;   (16  L.  R.  A. 
358)    on  statute  allowing  plea  of  guilty  in  capital  case. 
General   and   special   legislation. 

Cited  in  Sasser  v.  Martin,  101  Ga.  457,  29  S.  E.  278,  holding  statute  not  re- 
ducible to  general  uniform  rule,  a  special  law. 

Cited  in  footnotes  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes  not  applying  to  all  parts  of  state  unconstitutional; 
Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating 
sheriff's  fees  for  particular  county,  local;  State,  Alexander,  Prosecutor,  v.  Eliza- 
beth, 23  L.  R.  A.  525,  which  holds  invalid  special  statute  discriminating  between 
municipalities  already  having,  and  those  not  having,  race  course. 

Cited  in  note  (7  L.  R.  A.  194)  on  prohibition  against  special  and  local  legisla- 
tion. 
Delegation   of  power   to   conrt   or  judge. 

Cited  in  Hubbard  v.  Hubbard,  77  Vt.  79,  67  L.R.A.  971,  107  Am.  St.  Rep.  749, 
58  Atl.  969,  2  A.  &  E.  Ann.  Cas.  315,  holding  since  a  husband  has  a  freehold  es- 
tate in  the  land  of  his  wife  not  held  by  her  for  her  sole  and  separate  use,  for 
their  joint  lives,  a  statute  authorizing  a  court  of  chancery  "in  its  discretion"  on 
the  wife's  petition  to  empower  her  to  convey  her  real  estate  by  separate  deed,  is 
unconstitutional;  Re  Counties  Comprising  Seventh  Judicial  Dist.  22  Okla.  443,  98 
Pac.  557,  holding  statute  providing  that  upon  recommendation  of  the  Supreme 
Court,  the  Governor  shall  appoint  an  additional  judge  for  district  where  there 
are  an  unusual  number  of  cases  waiting  trial,  unconstitutional. 

Distinguished  in  Dinsmore  v.  State,  61  Neb.  427,  85  N.  W.  445,  upholding  law 
permitting  district  courts  to  elect  whether  grand  jury  shall  be  called  in  any 
term  of  court. 

3  L.  R.  A.  212,  WEEKS  v.  RUSSELL,  87  Tenn.  442,  10  S.  W.  771. 
Abatement   of  action. 

Cited  in  Hullett  v.  Baker,  101  Tenn.  692,  49  S.  W.  757,  holding  defendant's 
death  abates  action  for  breach  of  promise  to  marry. 

Cited  in  footnotes  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  action  for 
negligently  driving  over  person  survives;  Aylsworth  v.  Curtis,  33  L.  R.  A.  110, 
which  holds  action  for  value  of  property  stolen  survives. 

Cited  in  notes  (23  L.R.A.  707)  on  effect  on  contract  of  death  of  party  thereto; 
(9  L.R.A. (N.S.)    1023)  on  survival  of  cause  of  action  for  breach  of  promise  >   (2 
Eng.  Rul.  Cas.  17)  on  abatement  of  action  for  tort  by  death  of  wrongdoer. 
Actions   affecting   character. 

Cited  in  footnote  to  Hutcherson  v.  Burden,  54  L.  R.  A.  811,  which  holds  action 
by  father  for  seduction  of  daughter  within  statute  requiring  actions  for  "injuries 
done  to  the  person"  to  be  brought  within  two  years. 


455  L.  K.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  214 

3  L.  R.  A.  214,  ROBINSON  v.  QUEEN,  87  Tenn.  445,  10  Am.  St.  R«p.  690,  11 

S.  W.  38. 
Conflict  of  laws. 

Cited  in  Fitzsimmons  v.  Johnson,  90  Tenn.  443,  17  S.  W.  100,  holding  rights 
determinable  by  law  of  domicil,  and  remedies  by  law  of  forum;  Illinois  C.  R. 
Co.  v.  Ihlenberg,  34  L.  R.  A.  398,  21  C.  C.  A.  552,  43  U.  S.  App.  726,  75  Fed. 
879,  holding  provision  of  constitution  of  state,  where  employee  is  injured,  pre- 
cluding defense  of  his  knowledge  of  defects  in  appliances,  enforcible  by  Federal 
-court  in  other  state;  Ruhe  v.  Buck,  124  Mo.  189,  25  L.  R.  A.  184,  46  Am.  St. 
Rep.  439,  27  S.  W.  412,  holding  lex  fori  governs  action  brought  by  nonresident 
creditor  against  married  woman;  Benton  v.  German- American  Nat.  Bank,  45 
Neb.  854,  64  N.  W.  227,  holding  liability  of  married  woman  on  accommodation 
indorsement  depends  on  law  of  state  where  made;  Armstrong  v.  Best,  112  N.  C. 
63,  25  L.  R.  A.  189,  34  Am.  St.  Rep.  473,  17  S.  E.  14,  holding  contract  valid  in 
state  where  made,  not  enforceable  in  domicil,  when  contrary  to  laws  thereof; 
Robison  v.  Pease,  28  Ind.  App.  611,  63  N.  E.  479,  enforcing  against  married 
woman  suretyship  contract  made  in  sister  state  and  valid  there;  Smith  v. 
Ingram,  130  N.  C.  110,  61  L.  R.  A.  883  (dissenting  opinion),  40  S.  E.  984, 
majority  holding  married  woman  not  estopped  by  deed  valid  in  state  where  made 
but  void  in  forum  for  lack  of  privy  examination;  Bowles  v.  Field,  78  Fed.  744, 
holding  married  woman's  contract,  valid  where  made,  enforceable  elsewhere 
.although  contrary  to  law  of  domicil;  Dulin  v.  McCaw,  39  W.  Va.  730,  20  S.  E.  681, 
holding  remedies  regulated  solely  and  exclusively  by  law  of  forum;  Beauchamp  v. 
Bertig,  90  Ark.  365,  23  L.R.A.(N.S.)  664,  119  S.  W.  75,  holding  rule  of  county 
cannot  be  invoked  where  the  enforcement  of  a  foreign  law  will  contravene  some 
established  and  important  policy  of  the  state  of  the  forum  nor  where  the  ques- 
tion relates  to  transfer  of  title  to  real  property;  Fryklund  v.  Great  Northern  R. 
Co.  101  Minn.  39,  111  N.  W.  727,  holding  the  lex  fori  governs  in  all  matters  of 
procedure,  including  questions  of  pleading,  evidence,  and  parties  to  and  form  of 
action;  International  Harvester  Co.  v.  McAdam,  142  Wis.  123,  26  L.R.A.(N.S.) 
779,  124  N.  W.  1042,  holding  contract  valid  by  law  of  place  made  will  be  enforced 
in  another  jurisdiction  unless  contract  is  contrary  to  public  policy  of  law  of 
forum,  as  declared  by  its  courts  or  its  lawmaking  power  on  ground  of  good 
morals. 

Cited  in  notes  (46  Am.  St.  Rep.  448,  455)  on  asserting  against  married  woman 
a  liability  valid  in  state  where  created  but  not  in  foreign;  (85  Am.  St.  Rep.  569) 
on  conflict  of  laws  as  to  rights  and  obligations  of  married  woman;  (26  L.R.A. 
(N.S.)  764,  773)  on  conflict  of  laws  as  to  capacity  of  married  women  to  contract; 
(5  Eng.  Rul.  Gas.  867)  on  law  governing  validity  of  contracts. 

Distinguished  in  Peterson  v.  Richman,  93  Tenn,  75,  23  S.  W.  53,  holding 
married  woman,  with  full  authority  to  convey  as  feme  sole,  may  convey  without 
privy  acknowledgment;  Walling  v.  Christian  &  C.  Grocery  Co.  41  Fla.  489,  47 
L.  R.  A.  612,  27  So.  46,  holding  court  decree  of  one  state  making  married  woman 
*  free  dealer  of  no  effect  as  to  contracts  made  in  another  state  after  her  domicil 
there. 
Liability  of  married  woman  on  her  contracts. 

Cited  in  footnote  to  Kitchen  v.  Chapin,  57  L.  R.  A.  914,  which  holds  married 
woman  liable  on  her  guaranty  of  note  owned  by  her  and  payable  to  her  order. 
Privy  examination  of  married  women. 

Cited  in  Funkhouser  v.  Fowler,  117  Tenn.  541,  101  S.  W.  769,  holding  where 
*he  holds  separate  estate  under  the  statute,  and  without  absolute  power  of  dis- 
position as  feme  sole  she  can  only  convey  where  her  privy  examination  i-  taken. 


3  L.R.A.  217]  L.  R.  A.  CASES  AS  AUTHORITIES.  456 

3  L.  R.  A.  217,  HOOKER  v.  SUGG,  102  N.  C.  115,  11  Am.  St.  Rep.  717,  8  S.  E.  919. 
Construction    of    life    insurance    policies. 

Cited  in  Atkins  v.  Atkins,  70  Vt.  568,  41  Atl.  503,  holding  rules  for  inter- 
preting wills  may  be  followed  in  ascertaining  legal  effect  of  clause  designating 
beneficiary;  McXally  v.  Metropolitan  L.  Ins.  Co.  16  Pa.  Super.  Ct.  116,  holding 
life  insurance  policy,  like  wills,  should  be  liberally  construed  in  favor  of  pre- 
sumptive objects  of  bounty. 

Cited  in  note  (14  Am.  St.  Rep.  203)  on  construction  of  life  insurance  policy. 
Chang-e  of  beneficiary. 

Cited  in  Jackson  Bank  v.  Williams,  77  Miss.  403,  78  Am.  St.  Rep.  530,  26  So. 
965,  holding  insured  in  life  policy  without  power  to  change  beneficiary  without 
latter's  consent;  Sydnor  v.  Boyd,  119  N.  C.  486,  37  L.  R.  A.  736,  26  S.  E.  92, 
holding  wife's  indorsement  of  policy  payable  to  her  ineffectual  to  transfer  her 
interest  to  husband;  Perry  v.  Tweedy,  128  Ga.  405,  119  Am.  St.  Rep.  393,  57 
S.  E.  782,  11  A.  &  E.  Ann.  Cas.  46,  holding  in  ordinary  life  insurance  where  no 
power  of  devestiture  or  to  change  the  beneficiary  is  reserved  in  the  policy,  the  is- 
suance of  the  policy  confers  a  vested  right  upon  person  named  as  beneficiary,  and 
insured  cannot  transfer  such  interest  without  consent  of  beneficiary;  Arnold  v. 
Empire  Mut.  Annuity  &  L.  Ins.  Co.  3  Ga.  App.  706,  60  S.  E.  470.  holding  vested 
right  of  beneficiary  is  subject  to  be  divested  only  in  accordance  with  express  pro- 
visions of  the  contract  permitting  a  change  of  the  beneficiary. 
Nature  of  beneficiary's  interest. 

Cited  in  Pippen  v.  Mutual  Ben.  L.  Ins.  Co.  130  N.  C.  25,  57  L.  R.  A.  507, 
40  S.  E.  822,  holding  policy  of  insurance  is  executory  contract  relating  to  per- 
sonalty; Millard  v.  Brayton,  52  L.  R.  A.  123,  83  Am.  St.  Rep.  294,  59  N.  E.  436 
(omitted  from  official  report  in  177  Mass.  533)  ;  Glenn  v.  Burns,  100  Tenn.  298. 
45  S.  W.  784,  holding  under  policy  payable  to  wife,  if  she  survives  insured, 
otherwise  to  children,  latter  take  several  and  transmissible  interests,  subject  to 
contingency  of  wife's  survival;  Laughlin  v.  Xorcross,  97  Me.  34,  53  Atl.  834. 
holding  that  interest  in  life  insurance  policy  passes  under  devise  of  all  estate : 
Scull  v.  mna  L.  Ins.  Co.  132  N.  C.  32,  60  L.  R.  A.  616,  95  Am.  St.  Rep.  615.  43 
S.  E.  504,  holding  after-born  children  of  subsequent  marriage  entitled  to  share 
in  policy;  Lanier  v.  Eastern  L.  Ins.  Co.  142  N.  C.  18,  54  S.  E.  786;  Washington 
L.  Ins.  Co.  v.  Berwald,  97  Tex.  116,  76  S.  W.  442,  1  A.  &  E.  Ann.  Cas.  682 ;  Laupli- 
lin  v.  Norcross,  97  Me.  34,  53  Atl.  834, — holding  a  policy  of  life  insurance  the 
moment  it  is  issued,  creates  a  vested  interest  in  the  beneficiary  therein  named. 

Cited  in  note  (28  Am.  St.  Rep.  658)  on  wife's  vested  interest  in  policy  on  1ms- 
band's  life. 

3  L.  R.  A.  219,  HOLMES  v.  TALLADA,  125  Pa.  133,  11  Am.  St.  Rep.  880,.  17 

Atl.  238. 
Exemption    of   fund   in   converted    form. 

Cited  in  Reiff  v.  Mack,  160  Pa.  273,  40  Am.  St.  Rep.  720,  28  Atl.  699,  holding 
proceeds  of  pension  check  deposited  in  bank  not  liable  to  attachment  execution; 
Re  Lynch,  83  Hun,  464,  31  N.  Y.  Supp.  1038,  holding  proceeds  of  benefit  certifi- 
cate in  hands  of  widow  exempt  from  execution  for  her  debts;  Lancaster  County 
v.  Hartman,  9  Pa.  Co.  Ct.  182,  8  Lane.  L.  Rev.  4,  holding  directors  of  poor 
entitled  to  reimbursement  out  of  pension  money  for  support  of  lunatic;  Burtch 
v.  Burtch,  14  Pa.  Co.  Ct.  484,  11  Lane.  L.  Rev.  238,  holding  subject  to  debts, 
property  purchased  with  pension  money  in  name  of  wife;  Sommers  v.  Howey,  17 
Pa.  Co.  Ct.  172,  1  Lack.  Legal  News,  368,  holding  property  purchased  with 
pension  money  sold  to  mother  and  which  afterwards  came  to  pensioner,  liable  for 
debts;  Aubrey  v.  Mclntosh,  10  Pa.  Super.  Ct.  277,  44  W.  X.  C.  165,  holding  land' 


457  L.  E.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  221 

purchased  with  pension  money  not  exempt  from  execution;  Cook  v.  Alice,  119 
Iowa,  229,  93  N.  W.  93,  holding  proceeds  of  life  insurance  policy  exempt  from 
beneficiary's  debts  contracted  before  insured's  death;  Yerger's  Estate,  32  Pa.  Co. 
Ct.  238,  holding  that  while  pension  money  may  be  taken  for  the  support  of  a 
lunatic  pensioner  in  a  state  insane  hospital,  it  cannot  be  so  taken,  until  money 
has  actually  been  paid  for  hospital  expenses. 

Annotation  cited  in  Manning  v.  Spry,  121  Iowa,  196,  96  N.  W.  873,  holding 
pension  money  exempt  from  taxation  while  in  the  hands  of  guardian  of  insane 
pensioner. 

Cited  in  footnotes  to  Crow  v.  Brown,  11  L.  R.  A.  110,  which  holds  exempt, 
property  purchased  with  pension  money;  Johnson  v.  Elkins,  8  L.  R.  A.  552,  which 
holds  land  purchased  with  pension  money  and  conveyed  to  wife  liable  for  debts; 
Yates  County  Nat.  Bank  v.  Carpenter,  7  L.  R.  A.  557,  which  denies  exemption 
to  proceeds  of  pension  mingled  with  other  funds. 

Cited  in  notes  (19  L.R.A.  35)  on  how  far  proceeds  of  exempt  property  retain 
exempt  character;  (5  L.R.A. (N.S.)  473)  as  to  whether  statute  exempting  money 
"due  or  to  become  due"  or  "to  be  paid"  etc.  protects  money  after  payment;  (66 
Am.  St.  Rep.  386)  on  exemption  of  proceeds  of  exempt  personalty;  (46  L.  ed.  U.  S. 
$35)  on  exemption  of  property  purchased  with  pension  money,  or  of  pension 
money  after  payment  to  pensioner. 

Distinguished  in  Quigley  v.  Swank,  11  Pa.  Super.  Ct.  607,  holding  burden 
upon  wife  to  show  title  to  sewing  machine  in  herself  as  against  husband's 
creditors. 

3  L.  R.  A.  220,  COM.  v.  BOWMAN,  10  Ky.  L.  Rep.  891,  11  S.  W.  28. 

3  L.  R.  A.  221,  MERCER  v.  CORBIN,  117  Ind.  450,  10  Am.  St.  Rep.  76,  20  N.  E. 

132. 
Bicycles   subject   to   laws   affecting   vehicles   and   carriages. 

Cited  in  Myers  v.  Hinds,  110  Mich.  302,  33  L.  R.  A.  358,  64  Am.  St.  Rep.  345, 
68  N.  W.  156,  holding  bicycle  is  vehicle;  Davis  v.  Petrinovich,  112  Ala.  659,  36 
L.  R.  A.  617,  21  So.  344,  holding  bicycle  is  vehicle,  and  subject  to  same  regula- 
tions; Swift  v.  Topeka,  43  Kan.  673,  8  L.  R.  A.  774,  23  Pac.  1075,  holding 
bicycle  is  carriage,  and  entitled  as  such  to  use  of  roadway  of  bridge;  State  ex  rel. 
Bettis  v.  Missouri  P.  R.  Co.  71  Mo.  App.  391,  holding  bicycle  is  vehicle  or 
carriage,  and  not  within  definition  of  baggage,  which  common  carrier  is  required 
to  carry;  Fielder  v.  Tipton,  149  Ala.  612,  8  L.R.A.(N.S.)  1269,  123  Am.  St.  Rep. 
69,  42  So.  985,  13  A.  &  E.  Ann.  Gas.  1012,  holding  pedestrian  injured  by  person 
riding  bicycle  on  sidewalk  could  recover  therefor. 

Cited  in  footnote  to  State  v.  Collins,  3  L.  R  A.  394,  which  holds  bicycle 
within  statute  requiring  "carriage  or  other  vehicle"  traveling  on  highway  to 
pass  to  right. 

Cited  in  notes    (8  L.  R.  A.  772)    on  bicycle  a  vehicle;    (47  L.  R.  A.  296)    on 
bicycle  law  in  general;  (16  Am.  St.  Rep.  314;  48  Am.  St.  Rep.  377,  378)  on  bicycle 
as  vehicle. 
Riding1   bicycle    oil    sidewalk. 

Cited  in  Ordway  v.  Cornelius,  23  Pa.  Co.  Ct.  282;  Knouff  v.  Logansport,  26 
Ind.  App.  203,  84  Am.  St.  Rep.  292,  59  N.  E.  347,  holding  that  bicycle  is  a 
vehicle,  and  has  no  lawful  right  on  sidewalk. 

Cited  in  footnote  to  Myers  v.  Hinds,  33  L.  R.  A.  356,  which  holds  bicyclist 
liable  for  running  into  pedestrian  in  narrow  path. 

Distinguished  in  Lee  v.  Port  Huron,  128  Mich.  535,  55  L.  R.  A.  309,  87  X.  \V. 
*537,  holding  riding  bicycle  on  sidewalk  not  unlawful  act:  Leclmer  v.  Newark, 


3  L.R.A.  221]  L.  R.  A.  CASES  AS  AUTHORITIES.  458- 

19   Misc.   456,  44  N.  Y.   Supp.   556,  holding  village  not  liable   for  injury   from 
collision  with  bicycle  on  sidewalk  under  license,  until  after  notice  that  licensee 
was  negligent  in  exercise  of  privilege. 
—  ITse   of   roadway   by   bicycles. 

Cited  in  Holland  v.  Bartch,  120  Ind.  50,  16  Am.  St.  Rep.  307,  22  N.  E.  83, 
holding  riding  bicycle  in  highway  at  speed  of  15  miles  an  hour,  and  within 
25  feet  of  horses  attached  to  carriage,  not  negligence;  Geiger  v.  Perkiomen  &  R. 
Turnp.  Road,  28  L.  R.  A.  460,  4  Pa.  Dist.  R.  113,  denying  right  of  turnpike  com- 
pany to  demand  toll  of  persons  riding  on  bicycles  (Reversed  in  Supreme  Court). 

Cited  in  footnote  to  Peltier  v.  Bradley,  D.  &  C.  Co.  32  L.  R.  A.  651,  which 
denies  absolute  right  of  bicyclists  to  pass  on  right-hand  side  on  meeting  truck. 

Cited  in  notes  (19  L.  R.  A.  632,  633)  on  regulation  of  bicycle  riding;  (8  L.  R.  A. 
829)   on  use  of  streets  in  cities  and  towns. 
Extending-  language  of  statute  to  include  thing's  not  previously  existing. 

Cited  in  Daniels  v.  State,  150  Ind.  354,  50  N.  E.  74,  holding  penal  statute 
may  be  extended  by  construction  to  offenses  which  did  not-  exist  when  it  was- 
enacted;  Richardson  v.  Danvers,  176  Mass.  414,  50  L.  R.  A.  127,  79  Am.  St. 
Rep.  320,  57  N.  E.  688,  holding  bicycle  not  within  statute  requiring  highways- 
to  be  kept  reasonably  safe  for  carriages;  Abney  v.  Indiana  Union  Traction  Co.  41 
Ind.  App.  60,  83  N.  E.  387,  on  the  liberal  construction  of  remedial  statutes. 
Unlawful  use  of  sidewalks. 

Cited  in  Hardiman  v.  Wholley,  172  Mass.  412,  70  Am.  St.  Rep.  292,  52  N.  E, 
518,  holding  recovery  may  be  had  for  injury  from  kick  of  horse  wrongfully  on 
sidewalk,  without  showing  he  is  vicious. 
Negligence   amounting   to  manslaughter. 

Cited  in  State  v.  Dorsey,  118  Ind.  168,  10  Am.  St.  Rep.  Ill,  20  N.  E.  777r 
holding  engineer  negligently  running  engine  into  passenger  car,  and  killing 
passenger,  guilty  of  involuntary  manslaughter. 

Cited  in  note  (90  Am.  St.  Rep.  573)  on  negligence  amounting  to  manslaughter. 
Intent  as  element  of  offense. 

Cited  in  note  (14  L.  R.  A.  226,  227)  on  intent  as  element  of  simple  assault  or 
assault  and  battery. 

Distinguished  in  Gibeline  v.  Smith,  106  Mo.  App.  550,  80  S.  W.  961,  holding 
that  an  allegation  that  defendant  violently  and  wilfully  assaulted  and  beat  plain- 
tiff is  not  supported  by  proof  of  a  battery  resulting  from  negligence. 
Reservation   of  questions   for  consideration   on  appeal. 

Cited  in  Shugart  v.  Miles,  125  Ind.  449,  25  N.  E.  551,  holding  statute  respecting 
reservation  of  questions  of  law  for  decision  on  appeal  should  be  liberally  con- 
strued; Stevens  v.  Stevens,  127  Ind.  564,  26  N.  E.  1078,  holding  that  without 
bill  of  exceptions  questions  of  error  as  to  admission  of  evidence  cannot  be  pre- 
sented on  appeal. 
Xecessity  of  including  evidence  in  record  on  appeal. 

Cited  in  Chestnut  v.  Southern  Indiana  R.  Co.  157  Ind.  515,  62  X.  E.  32; 
Bain  v.  Goss,  123  Ind.  511,  24  N.  E.  361;  Shewalter  v.  Bergman,  123  Ind.  158, 
23  X.  E.  686;  Jones  v.  Foley,  121  Ind.  182,  22  N.  E.  987,— holding  presentation 
of  purely  legal  questions  arising  on  instructions,  on  facts,  or  on  rulings  on 
admission  of  evidence  does  not  require  all  of  evidence  to  be  incorporated  in  bill 
of  exceptions. 
When  cause  not  reversed  because  of  instructions. 

Cited  in  Huntington  County  v.  Huffman,  134  Ind.  8,  31  N.  E.  570,  holding 
judgment  will  not  be  reversed  on  account  of  instructions,  if  evidence  conflicting, 
and  instructions  correct  on  any  supposable  state  of  facts. 


459  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  224 

Proximate   cause. 

Cited  in  Reynolds  v.  Pierson,  29  Ind.  App.  276,  64  N.  E.  484,  holding  one  who 
jerked  friend  causing  fall  of  aged  man,  with  whom  latter  was  talking,  liable 
for  injury. 

3  L.  R.  A.  224,  WESTERN  U.  TELEG.  CO.  v.  YOPST,  118  Ind.  248,  20  N.  E.  222. 
Transaction    in    violation    of    public    Inw. 

Cited  in  Jemison  v.  Birmingham  &  A.  R.  Co.  125  Ala.  383,  28  So.  51,  holding 
no  recovery  by  carrier  against  warehouseman  for  failure  to  deliver  cotton,  where 
based  on  carrier's  agreement  to  issue  bills  of  lading  in  violation  of  law,  before 
actual  receipt  of  goods. 

Cited  in  note  (12  L.R.A.(N.S.)  578,  582,  583,  622)  on  validity  of  contracts  in 
business  which  it  is  misdemeanor  to  transact. 
Sunday  law. 

Cited  in  footnotes  to  First  M.  E.  Church  v.  Donnell,  46  L.  R.  A.  858,  which 
sustains  subscription  to  church  indebtedness  made  on  Sunday;  Porter  v.  Pierce, 
7  L.  R.  A.  847,  which  excludes  Sunday  in  determining  time  to  redeem;  Sullivan 
v.  Maine  C.  R.  Co.  8  L.  R.  A.  427,  which  holds  riding  for  exercise  on  Sunday 
not  violation  of  statute;  Handy  v.  Globe  Pub.  Co.  4  L.  R.  A.  466,  which  holds  it 
unnecessary  to  plead  illegality  of  contract  for  publishing  Sunday  newspapers; 
State  v.  Collett,  64  L.R.A.  204,  which  holds  repairing  of  belt  in  factory  on  Sun- 
day so  as  to  prevent  two  hundred  hands  from  losing  work  on  the  following  day; 
Rodman  v.  Robinson,  65  L.R.A.  682,  which  sustains  Sunday  contract  for  pur- 
chase and  sale  of  real  estate. 

Cited  in  notes    (14  L.  R,  A.   195)    on  Sunday  labor;    (3  L.  R.  A.  658)    on 
Sunday  as  n  on  judicial  day. 
"What  is  work:  of  necessity. 

Cited  in  Dugan  v.  State,  125  Ind.  134,  9  L.  R.  A.  322,  footnote,  p.  321,  25 
N.  E.  171,  holding  pilot  of  excursion  steamer  not  engaged  in  work  of  necessity 
or  charity;  Burnett  v.  Western  U.  Teleg.  Co.  39  Mo.  App.  612,  holding  message 
by  husband  to  wife  explaining  absence,  necessity  or  charity  although  it  might 
have  been  sent  on  Saturday;  Western  U.  Teleg.  Co.  v.  Henley,  23  Ind.  App.  20, 
54  N.  E.  775,  holding  information  to  agent  that  message  related  to  serious  illness, 
sufficient  to  show  necessity  though  message  itself  not  indication  thereof. 

Cited  in  footnotes  to  State  v.  McBee,  60  L.  R.  A.  638,  which  holds  pumping 
oil-well   on   Sunday  work   of  necessity,   if  permanent,  material   loss  and  injury 
would  otherwise  result;  Arnheiter  v.  State,  58  L.  R.  A.  392,  which  holds  sale  of 
meat  by  butcher  to  customers  on  Sunday  not  work  of  necessity  or  charity. 
Allegations  as   to  necessity  of  act. 

Cited  in  Western  U.  Teleg.  Co.  v.  Henley,  23  Ind.  App.  17,  54  N.  E.  775,  holding 
complaint  showing  delivery  of  message  on  Sunday  for  transmission,  but  failing 
to  state  facts  showing  necessity  therefor,  bad  on  demurrer  where  message  itself 
not  indicative  thereof. 

Distinguished  in  Bassett  v.  Western  U.  Teleg.  Co.  48  Mo.  App.  568,  holding 
averment  and  proof  of  necessity  not  requisite  where  defendant  voluntarily  under- 
took transmission  of  Sunday  message,  and  statute  provides  that  Sunday  law  no 
defense  in  such  case. 
—  Evidence   as    to   necessity   of  act. 

Cited  in  Western  U.  Teleg.  Co.  v.  Griffin,  1  Ind.  App.  50,  27  N.  E.  113,  holding 
text  of  telegram  showing  call  for  doctor  in  case  of  urgent  need  admissible  to 
show  necessity  for  transmission. 


I 


3  L.R.A.  224]  L.  E.  A.  CASES  AS  AUTHORITIES.  460 

Duty   to   deliver   telegram. 

Cited  in  Western  U.  Teleg.  Co.  v.  Moore,  12  Ind.  App.  141,  54  Am.  St.  Rep. 
515,  39  N.  E.  874,  holding  penalty  recoverable  for  failure  to  deliver  although 
sendee  outside  free  delivery  limit,  where  no  extra  charge  demanded  of  sender. 

Cited  in  footnotes  to  Western  U.  Teleg.  Co.  v.  Short,  9  L.  R.  A.   744,  which 
holds  company  prima  facie  liable   for  failure  to  deliver  telegram;   Western   U. 
Teleg.  Co.  v.  Adams,  6  L.  R.  A.  844,  which  holds  ignorance  of  relations  between 
parties  to  message  not  excuse  neglect  in  delivering. 
Stipulation    of   notice   of   claim. 

Cited  in  Western  U.  Teleg.  Co.  v.  Trumbull,  1  Ind.  App.  124,  27  N.  E.  313, 
holding  stipulation  satisfied  by  institution  of  action  within  prescribed  time 
limit;  Barrett  v.  Western  U.  Teleg.  Co.  42  Mo.  App.  547,  holding  stipulation  for 
notice  of  claim  within  certain  period  after  "Sunday"  message  does  not  apply 
where  message  never  sent;  Hill  v.  Western  U.  Teleg.  Co.  85  Ga.  429,  21  Am.  St. 
Rep.  166,  11  S.  E.  874,  holding  stipulation  waived  by  refusal  of  manager  of 
company  to  pay  on  ground  that  operator  alone  to  blame;  Hudson  v.  Northern 
P.  R.  Co.  92  Iowa,  236,  54  Am.  St.  Rep.  550,  60  N".  W.  608,  holding  waiver  after 
expiration  of  time  for  giving  notice,  valid;  Western  U.  Teleg.  Co.  v.  Greer,  115 
Tenn.  372,  1  L.R.A.(X.S.)  527,  89  S.  W.  327,  holding  a  clause  in  a  contract  for 
the  transmission  of  a  telegram  exempting  the  company  from  damages  for  non- 
delivery unless  claim  was  made  within  sixty  days  was  reasonable  and  valid. 

Cited  in  note  (13  L.  R.  A.  511)  on. effect  of  stipulation  in  contract  to  transmit 
telegram. 
Declarations  of  agent  as  admissible  against  principal. 

Cited  in  Virginia-Carolina  Chemical  Co.  v.  Knight,  106  Va.  679,  56  S.  E.  72o, 
holding  that  the  report  of  the  superintendent  of  defendant  plant,  where  plaintiff 
was  injured  made  before  any  action  was  threatened  was  not  inadmissible  as  a 
privileged  communication. 

Cited  in  note  (131  Am.  St.  Rep.  336)  on  declarations  and  acts  of  agents. 

Distinguished  in  Havens  v.  Rhode  Island  Suburban  R.  Co.  26  R.  I.  56,  58  Atl. 
247,  3  A.  &  E.  Ann.  Gas.  617,  holding  that  the  declarations  of  the  superintendent 
of  the  car  barns  that  a  motorman  was  incompetent,  made  the  day  after  the  acci- 
dent was  inadmissible  in  an  action  for  injuries  to  the  conductor. 
Anticipation    of   defense. 

Cited  in  Bowlus  v.  Phenix  Ins.  Co.  133  Ind.  110,  20  L.  R.  A.  402,  32  N.  E.  319, 
holding  answer  failing  to  avoid  matter  set  up  by  plaintiff  in  avoidance  of  antici- 
pated defense,  bad;  Sutton  v.  Todd,  24  Ind.  App.  520,  55  N.  E.  980,  holding  com- 
plaint which  states  valid  defense  without  successfully  avoiding  same,  bad  on 
demurrer. 
Effect  of  demurrer. 

Cited  in  Western  U.  Teleg.  Co.  v.  Trumbull,   1   Ind.  App.   123,  27  N.  E.  313, 
holding  on   demurrer   to  bad  reply  judgment  against   defective  answer   may  be 
rendered. 
State   regulation   of   business. 

Cited  in  notes  (24  L.  R.  A.  165)  on  power  of  states  to  control  or  impose 
burdens  on  interstate  telegraph  and  telephone  companies;  (31  L.  R.  A.  802)  on 
police  regulation  of  electric  companies. 

3  L.  R.  A.  230,  DREW  v.  HAGERTY,  81  Me.  231,  10  Am.  St.  Rep.  255,  17  Atl.  63. 
Gifts,    necessity    of    delivery. 

Cited  in  footnote  to  Gammon  Theological  Seminary  v.  Robbins.  12  L.  R,  A.  506, 


461  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  230 

which  holds  instrument  declaring  that  holder  gives  note  which  he  retains  insuffi- 
cient as  gift. 

Cited  in  notes  (6  L.  R.  A.  404)  on  sufficiency  of  intent  alone  to  complete  gift; 
(6  L.R.A.  406)  on  deposit  of  fund  in  trust  for  another;  (19  L.R.A.  700)  on  de- 
livery of  bank  book  to  sustain  gift  of  deposit;  (17  L.R.A.(X.S.)  181)  on  delivery 
necessary  to  complete  gift  of  savings-bank  account  when  book  already  in  posses- 
sion of  donee. 
Causa  mortis. 

Cited  in  Allen  v.  Allen,  75  Minn.  117,  74  Am.  St.  Rep.  442,  77  N.  W.  567, 
holding  oral  declaration  of  gift  of  furniture  unaccompanied  by  symbolic  delivery, 
ineffective;  Bean  v.  Bean.  71  N.  H.  541,  53  Atl.  907,  holding  written  declaration 
of  gift  of  stocks,  bonds,  and  bank  accounts  then  in  possession  of  donee  insufficient 
without  delivery:  Norway  Sav.  Bank  v.  Merriam,  88  Me.  153,  33  Atl.  840,  holding 
deposit  of  fund  in  joint  account  with  anticipatory  donee  not  effective  as  gift 
causa  mortis,  voluntary  trust,  or  testamentary  disposition;  Hawn  v.  Stoler, 
208  Pa.  614,  65  L.  R.  A.  815,  57  Atl.  1115,  holding  parol  instruction  for  transfer 
of  money  after  death  without  delivery  of  certificate  of  deposit,  not  valid  gift; 
Farnsworth  v.  Whiting,  106  Me.  433.  76  Atl.  909,  holding  proof  of  delivery  of  kef 
of  safe  deposit  box  insufficient  to  support  gift  of  contents;  Bowanko's  Estate,  37 
Pa.  Co.  Ct.  603,  holding  mere  declaration  by  husband  half  hour  before  death,  of 
wish  that  wife  have  certificate  of  deposit,  insufficient;  Hawn  v.  Stoler,  208  Pa. 
614,  65  L.R.A.  815,  57  Atl.  1115,  holding  that  an  oral  disposition  of  property  in 
contemplation  of  death,  without  any  act  of  delivery,  can  be  sustained  only  as  a 
nuncupative  will,  subject  to  the  limitations  provided  for  such. 

Cited  in  notes  (6  L.R.A.  367)  on  what  essential  to  constitute  gift  cause 
mortis;  (7  L.R.A.  439,  11  L.R.A.  684)  on  gift  causa  mortis;  (99  Am.  St.  Rep. 
899,  900)  on  gifts  causa  mortis;  (9  Eng.  Rul.  Cas.  863,  864)  on  requisites  of 
donatio  causa  mortis. 

Distinguished  in  Larrabee  v.  Hascall,  88  Me.  518.  51  Am.  St.  Rep.  440,  34  Atl, 
408,  holding  delivery  of  order  on  bank  and  deposit  book  sufficient;  Goulding  v, 
Horbury,  85  Me.  233,  35  Am.  St.  Rep.  357,  27  Atl.  127,  holding  declaration  of 
gift  of  stocks,  bonds,  and  bank  books  in  presence  of  both  parties,  good  causa 
mortis,  though  deceased  physically  able  to  make  manual  delivery;  Bath  Sav. 
Inst  v.  Hathorn,  88  Me.  127.  32  L.  R.  A.  378,  51  Am.  St.  Rep.  382,  33  Atl.  836, 
holding  gift  in  trust  effected  by  deposit  in  name  of  donor  "in  trust  for  donee" 
with  oral  expression  of  desire  that  donee  should  have  same  at  donor's  death. 

Disapproved  in  Davis  v.  Kuck,  93  Minn.  266,  101  X.  W.  165,  holding  that  if  a 
gift  causa  mortis  was  made  and  accepted  in  good  faith,  new  and  formal  acts  of 
delivery  were  not  necessary  where  the  property  was  already  in  the  donee's  pos- 
session, and  the  control  and  possession  was  consistent  with  ownership. 
Inter  vivos. 

Cited  in  Donnell  v.  Wylie,  85  Me.  146,  26  Atl.  1092,  holding  delivery  essential 
to  validity  of  gift  of  mortgage  to  mortgagor,  or  by  one  taking  assignment  in  his 
own  name;  Bickford  v.  Mattocks,  95  Me.  549,  50  Atl.  894,  holding  gift  incomplete 
where  donor  ordered  note  and  mortgage  drawn  in  name  of  donee,  with  directions 
to  scrivener  to  send  same,  after  recording,  to  donee;  but  same  never  sent; 
Williamson  v.  Johnson.  62  Vt.  381.  9  L.  R.  A.  278.  22  Am.  St.  Rep.  117.  20  Atl. 
279,  holding  money  sent  unconditionally  to  fiance"  for  purchase  of  marriage 
wardrobe  and  traveling  expenses  recoverable  on  her  breach  of  engagement. 

Cited  in  footnotes  to  Peck  v.  Rees,  13  L.  R.  A.  714,  which  holds  delivery  of 
deed  by  donor  to  own  agent  insufficient:  Porter  v.  Woodhouse.  13  L.  R.  A.  64, 
which  holds  warranty  deeds  not  delivered  by  donor  giving  to  third  person. 

Cited  in  note  (5  L.  R.  A.  72)  on  what  necessary  to  complete  gift. 


; 


3  L.R.A.  232]  L.  R.  A.  CASES  AS  AUTHORITIES.  462 

3  L.  R.  A.  232,  UNITED  STATES  v.  SHAW,  39  Fed.  433. 
Jurisdiction    of   circuit   court Amount. 

Followed  in  United  States  v.  Kentucky  River  Mills,  45  Fed.  275,  holding  court 
has  jurisdiction  of  claim  by  United  States  for  rent  in  amount  more  than  $500 
and  less  than  $2,000;  United  States  v.  Belknap,  73  Fed.  21,  and  United  States 
v.  Reid,  90  Fed.  522,  holding  court  has  jurisdiction  of  action  on  bond  to  recover 
amount  less  than  $2,000  and  over  $500. 

Cited  in  Western  U.  Teleg.  Co.  v.  Charleston,  56  Fed.  420,  holding  telegraph 
company  in  capacity  of  government  agent,  entitled  to  apply  to  court  to  restrain 
enforcement    of    tax    less    than    $2,000    which    is    claimed    to    imperil    corporate 
existence. 
Suits  to   -which   United    States   Is  a   party. 

Cited  in  United  States  Fidelity  &  G.  Co.  v.  United  States,  204  U.  S.  354,  51 
L.  ed.  518,  27  Sup.  Ct.  Rep.  381,  holding  that  the  circuit  court  had  jurisdiction 
of  an  action  to  which  the  United  States  was  the  real  plaintiff,  irrespective  of 
amount  involved;  United  States  use  of  Creek  Nation  v.  Rea-Read  Mill  £  Elevator 
Co.  171  Fed.  510,  holding  that  the  circuit  court  had  jurisdiction  of  a  suit  by  the 
United  States  for  the  use  of  an  Indian  tribe. 
—  Locality. 

Cited  in  East  Tennessee,  V.  &  G.  R.  Co.  v.  Atlantic  &  F.  R.  Co.  15  L.  R.  A.  113, 
49  Fed.  616,  holding  general  provisions  of  act  of  1875,  as  to  locality  in  which 
civil  suits  properly  brought,  do  not  affect  provisions  of  U.  S.  Rev.  Stat.  §§  740- 
742,  U.  S.  Comp.  Stat.  1901,  pp.  587,  588,  determining  venue  of  suits  of  "local 
nature." 

3  L.  R.  A.  234,  THE  IMPERIAL,  13  Sawy.  639,  38  Fed.  614. 
Liability  of  tug  for  collision  of  tow  ship. 

Cited  in  Re  Walsh,  69  C.  C.  A.  267,  136  Fed.  559,  on  the  liability  of  tug  for 
collision  with  tow  fleet  under  direction  of  pilot  of  tow. 
Obstruction  of  navigable  stream. 

Cited  in  notes   (5  L.  R.  A.  393)   on  obstruction  of  navigable  stream;    (59  L.  R. 
A.   76)    on  right   to  obstruct  navigation;    (23   Eng.  Rul.   Cas.   160)    on   riparian 
owner's  right  of  access. 
Obligations  of   owner  of  ferry. 

Cited  in  footnote  to  Sturgis  v.  Kountz,  27  L.  R.  A.  390,  which  requires  ferry- 
boat owner  to  provide  sufficient  bar  to  driveway. 

3  L.  R.  A.  238,  STATE  ex  rel.  RAILROAD  &  W.  COMMISSION  v.  CHICAGO, 
ST.  P.  M.  &  0.  R.  CO.  40  Minn.  267,  2  Inters.  Com.  Rep.  519,  12  Am.  St.  Rep. 
730,  41  N.  W.  1047. 

State    regulation    of    rates. 

Cited  in  Kansas  City  S.  R.  Co.  v.  Railroad  Comrs.  106  Fed.  362,  denying  power 
of  state  to  regulate  rates  between  two  points  in  same  state,  even  on  through  bill 
of  lading,  where  route  passes  through  another  state;  Burlington,  C.  R.  &  N.  R. 
Co.  v.  Dey,  82  Iowa,  339,  12  L.  R.  A.  444,  3  Inters.  Com.  Rep.  593,  31  Am.  St.  Rep. 
477,  48  N.  W.  98,  questioning,  whether  regulation  of  rates  between  two  points 
in  same  state  would  be  interference  with  interstate  commerce,  though  route 
passed  through  another  state;  Interstate  Commerce  Commission  v.  Cincinnati, 
N.  0.  &  T.  P.  R.  Co.  167  U.  S.  496,  42  L.  ed.  252,  17  Sup.  Ct.  Rep.  890,  holding 
power  to  establish  rates  not  conferred  on  Interstate  Commerce  Commission  by 
Congress;  Hanley  v.  Kansas  City  Southern  R.  Co.  187  U.  S.  620,  47  L.  ed.  336, 
23  Sup.  Ct.  Rep.  214,  denying  state's  power  to  regulate  rates  for  shipments  over 


463  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  240 

rout  partly  outside  of  state;  Hardwick  Farmers'  Elevator  Co.  v.  Chicago,  R.  I.  & 
P.  R.  Co.  110  Minn.  32,  124  N.  W.  819,  holding  that  transportation  of  merchandise 
between  two  points  in  state  through  neighboring  state  is  interstate  commerce. 

Cited  in  notes  (17  L.R.A.  443)  as  to  whether  shipments  between  points  in  same 
state  lose  their  character  of  domestic  commerce  by  passing  out  of  state  during 
transportation;  (27  Am.  St.  Rep.  559)  on  state  regulation  of  interstate  com- 
merce; (28  L.R.A.(N.S.)  986;  47  L.  ed.  U.  S.  334)  on  interstate  character  of 
transportation  between  points  in  same  state  over  route  which  passes  outside 
such  state. 

Distinguished  in  Seawell  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  119  Mo.  240, 
5  Inters.  Com.  Rep.  273,  24  S.  W.  1002,  holding  penalty  under  state  statute  for 
{•barging  less  per  mile  on  long  haul  than  on  short  haul,  recoverable  though  long 
haul  between  two  points  in  state  passes  in  its  course  outside  boundary  of  state. 

Cited  as  overruled  in  State  ex  rel.  Railroad  Comrs.  v.  Western  U.  Teleg.  Co. 
113  N.  C.  223,  22  L.  R.  A.  571,  18  S.  E.  389,  holding  regulation  of  telegraphic 
rates  between  points  within  state  not  regulation  of  interstate  commerce  because 
message  traverses  another  state  en  route. 

3  L.  R.  A.  240,  KANSAS  CITY,  ST.  J.  &  C.  B.  R.  CO.  v.  ST.  JOSEPH  TERMINAL 

R,  CO.  97  Mo.  457,  10  S.  W.  826. 
Compensation  for  railway  in  street. 

Cited  in  St.  Louis  Transfer  R.  Co.  v.  St.  Louis  Merchants  Bridge  Terminal  R. 
Co.  Ill  Mo.  678,  20  S.  W.  319,  holding  railway  in  street  damnum  absque  injuria 
as  to  existing  railway  where  there  is  room  for  both;  Chicago,  B.  &  Q.  R,  Co.  v. 
Steel,  47  Neb.  746,  66  N.  W.  830,  and  Southern  R.  Co.  v.  Atlanta  R.  &  Power  Co. 
Ill  Ga.  689,  51  L.  R.  A.  129,  36  S.  E.  873,  holding  street  railroad  may  cross 
tracks  of  steam  railroad  in  street  without  prior  compensation;  Stephenson  v. 
Missouri  P.  R.  Co.  68  Mo.  App.  649,  and  .Henry  Gaus  &  Sons  Mfg.  Co.  v.  St. 
Louis,  K.  &  N.  W.  R.  Co.  113  Mo.  317,  18  L.  R.  A.  342,  35  Am.  St.  Rep.  706, 
20  S.  W.  658,  both  holding  commercial  steam  railway  in  street,  within  general 
grant  or  dedication;  D.  M.  Osborne  &  Co.  v.  Missouri  P.  R.  Co.  147  U.  S.  252, 
37  L.  ed.  158,  13  Sup.  Ct.  Rep.  299,  raising,  without  deciding,  question  of  com- 
pensation to  abutting  owner  for  steam  commercial  railway  in  street;  Birmingham 
Traction  Co.  v.  Birmingham  R.  &  Electric  Co.  119  Ala.  143,  43  L.  R.  A.  235,  24 
So.  502,  holding  abutting  owner  not  entitled  to  compensation  for  electric  railway 
in  street,  as  additional  servitude;  Kansas  City  Suburban  Belt  R.  Co.  v.  Kansas 
City,  St.  L.  &  C.  R.  Co.  118  Mo.  624,  24  S.  W.  478,  holding  obligatory  stopping 
of  trains  upon  approach  to  railroad  crossing,  not  element  of  damage  from  such 
crossing;  Union  Elevator  Co.  v.  Kansas  City  Suburban  Belt  R.  Co.  135  Mo.  368, 
36  S.  W.  1071,  holding  interference  with  standing  and  shifting  cars  on  track 
on  levee,  not  element  of  damage;  Gates  v.  Kansas  City  Bridge  &  Terminal  R.  Co. 
Ill  Mo.  34,  19  S.  W.  957,  holding  abutting  owner  not  entitled  to  recover  for 
injury  by  bridge  approach,  unless  damage  is  peculiar  to  himself;  South  East  &  St. 
L.  R.*Co.  v.  Evansville  &  Mt.  V.  Electric  R.  Co.  169  Ind.  343,  13  L.R.A.(N.S.)  920, 
82  N.  E.  765,  14  A.  &  E.  Ann.  Gas.  214,  holding  that  the  owners  of  a  steam 
railroad  are  not  entitled  to  compensation  for  the  crossing  of  its  road  by  an  inter- 
urban  electric  road  laid  on  a  public  highway  with  consent  of  the  county. 

Cited  in  note  (5  L.  R.  A.  661)  on  protection  of  private  rights  by  constitutional 
law. 
Exclusive  privilege. 

Cited  in  Kansas  City  Suburban  Belt  R.  Co.  v.  Kansas  City,  St.  L.  &  C.  R.  Co. 
118  Mo.  613.  24  S.  W.  478,  holding  that  material  interference  with  existing 
railway  will  not  prevent  railway  crossing:  Grand  Ave.  R.  Co.  v.  People's  R.  Co. 


I 


3  L.R.A.  240]  L.  R.  A.  CASES  AS  AUTHORITIES.  46* 

132  Mo.  43,  33  S.  W.  472,  holding  that  city  cannot  confer  exclusive  franchise  on 
street  railway;  Lockwood  v.  Wabash  R,  Co.  122  Mo.  97,  24  L.  R.  A.  519,  43  Am. 
St.  Rep.  547,  26  S.  W.  698,  holding  that  railroad  cannot  be  granted  a  monopoly 
of  use  of  street;  Louisville  &  N.  R.  Co.  v.  Bowling  Green  R.  Co.  110  Ky.  796, 
63  S.  W.  4,  sustaining  right  of  electric  street  railroad  to  cross  trunk  railroad 
at  grade;  Seibel-Suessdorf  Copper  &  I.  Mfg.  Co.  v.  Manufacturers'  R.  Co.  230  Mo. 
86,  130  S.  W.  288,  holding  that  construction  and  operation  of  single  track  in  cen- 
ter of  street  will  not  constitute  monopoly  of  street. 

3  L.  R.  A.  247,  VANDERLIP  v.  GRAND  RAPIDS,  73  Mich.  522,  16  Am.  St.  Rep. 
597,  41  N.  W.  677. 

Action  to  hold  city  liable  to  contractors  for  damage  from  injunction  in  Mathew- 
son  v.  Grand  Rapids,  88  Mich.  562,  26  Am.  St.  Rep.  299,  50  N.  W.  651. 
What  constitutes  n   taking:. 

Cited  in  Payne  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  112  Mo.  18,  17  L.  R.  A. 
631,  20  S.  W.  322,  holding  flooding  by  public-improvement  dam  from  natural 
change  in  channel  ten  years  after  erection  leaving  channel  for  ordinary  high 
waters,  no  "taking;"  De  Lucca  v.  North  Little  Rock,  142  Fed.  601,  holding  that 
the  building  of  a  viaduct  on  the  street  was  not  a  taking  within  the  Constitu- 
tion, where  none  of  the  property  was  taken  although  damaged  incidently:  Stock- 
dale  v.  Rio  Grande  Western  R.  Co.  28  Utah,  211,  77  Pac.  849,  holding  that  any 
substantial  interference  with  private  property  which  destroys  or  materially  less- 
ens its  value  or  by  which  the  owner's  use  is  abridged  or  destroyed  is  a  taking. 

Cited  in  footnotes  to  Reining  v.  New  York,  L.  &  W.  R.  Co.  14  L.  R.  A.  133, 
which  holds  abutting  owner  entitled  to  compensation  on  closing  of  street  by 
railroad  embankment;  Memphis  &  C.  R.  Co.  v.  Birmingham,  S.  &  T.  River  R.  Co. 
18  L.  R.  A.  166,  which  holds  compensation  required  from  railroad  crossing  other 
railroad;  St.  Louis  v.  Hill,  21  L*  R.  A.  226,  which  holds  prohibition  against 
building  on  certain  portion  of  land  a  "taking"  of  property;  White  v.  North- 
western North  Carolina  R.  Co.  22  L.  R.  A.  627,  which  holds  use  of  street  for  steam 
railroad  taking  of  same. 

Cited  in  notes  (31  Am.  St.  Rep.  733)  on  occupation  of  city  streets  by  rail- 
roads; (102  Am.  St.  Rep.  810)  on  uses  for  which  power  of  eminent  domain  can- 
not be  exercised;  (106  Am.  St.  Rep.  253,  261)  on  what  are  additional  servitudes 
in  highways;  (22  Eng.  Rul.  Gas.  262)  on  what  constitutes  a  taking  of  property 
for  public  purpose. 

Distinguished  in  Fuller  v.  Grand  Rapids,  105  Mich.  533,  63  N.  W.  530,  holding 
city  not  liable  for  abutter's  private  area  wall  covered  after  notice  in  widening 
roadway  in  street;  Searle  v.  Lead,  10  S.  D.  317,  39  L.  R.  A.  347,  73  N.  W.  101, 
holding  abutter's  injury  by  raising  grade  of  street  within  Constitution  forbidding 
"damaging"  without  compensation;  O'Brien  v.  Baltimore  Belt  R.  Co.  74  Md.  374, 
13  L.  R.  A.  130,  22  Atl.  141,  holding  no  "taking"  from  abutter  without  fee  in 
street,  by  railroad  cut  in  street  physically  injuring  his  lot  or  its  use. 
Damages  for  "taking:." 

Cited  in  Detroit  v.  Detroit  United  R.  Co.  156  Mich.  113,  120  N.  W.  600,  on  the 
measure  of  damages  for  removal  of  grade  crossing. 

Cited  in  footnote  to  Clemens  v.  Connecticut  Mut.  L.  Ins.  Co.  67  L.R.A.  362, 
which  denies  right  to  injunction  to  stay  improvement  of  public  street  according 
to  adopted  grade  until  payment  of  damages. 

Cited  in  notes  (9  L.R.A.  298)  on  diminution  in  value  of  land  taken  for  railroad 
purposes;  (30  Am.  St.  Rep.  836)  on  municipal  liability  for  change  of  street  grade. 


4G5  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  257 

3  L.  R.  A.  254,  TALBOT  v.  CHAMBERLAIN,  149  Mass.  57,  20  N.  E.  305. 
Incompetent'!*    change    of    domicil. 

Cited  in  Re  Fidelity  Trust  Co.  27  Misc.  120,  57  N.  Y.  Supp.  361,  holding 
inquisition  in  lunacy,  without  appointment  of  committee,  not  preclude  change  of 
residence. 

Cited  in  footnote  to  Re  Wickes,  49  L.  R.  A.  138,  which  denies  right  of  woman 
placing  husband  in  home  for  incurables,  to  acquire  separate  domicil. 
CoiicIusiveneHH   of  adjudgment   of   Insanity. 

Cited  in  Soules  v.  Robinson,  158  Ind.  100,  92  Am.  St.  Rep.  301,  62  N.  E.  999, 
holding  a  judgment  adjudicating  a  person  insane  is  conclusive  until  set  aside,  and 
renders  void  a  subsequent  one  rendered  in  another  county. 
Proceedings  to  probate  foreign   will*. 

Cited  in  Rackemann  v.  Taylor,  204  Mass.  398,  90  N.  E.  552,  holding  proceed- 
ings in  courts  of  other  states  in  probating  a  will  of  a  resident  are  always  an- 
cilliary  actions. 

3  L.  R.  A.  257,  LINCOLN  v.  BOSTON,  148  Mass.  578,  12  Am.  St.  Rep.  601,  20 

N.  E.  329. 
Municipal    liability. 

Cited  in  Howard  v.  Worcester,  153  Mass.  427,  12  L.  R.  A.  161,  25  Am.  St. 
Rep.  651,  27  N.  E.  11,  holding  city  without  liability  for  damage  in  blasting  for 
schoolhouse,  unless  statutory;  Bowes  v.  Boston,  155  Mass.  351,  15  L.  R.  A.  369, 
29  N.  E.  633,  holding  city  not  liable  for  fright  of  horse  from  sound  by  scraping 
of  wheel  against  stone  in  road;  Fifield  v.  Phoenix,  4  Ariz.  287,  24  L.R.A.  431,  36 
Pac.  916,  holding  city  not  liable  for  firing,  under  its  license,  of  Chinese  bombs 
in  street;  Davis  v.  Massachusetts,  167  U.  S.  47,  42  L.  ed.  72,  17  Sup.  Ct.  Rep. 
731  (Affirming  Com.  v.  Davis,  162  Mass.  511,  26  L.  R.  A.  714,  44  Am.  St.  Rep. 
389,  39  N.  E.  113),  holding  ordinance  prohibiting  unlicensed  public  addresses  on 
public  grounds,  within  police  power;  Love  v.  Recorder's  Ct.  Judge,  128  Mich. 
550,  55  L.  R.  A.  621,  87  N.  W.  785,  holding  ordinance  prohibiting  unlicensed 
public  addresses  in  public  places  within  half  mile  of  city  hall,  reasonable  exercise 
of  power  to  control  use;  Mount  Hope  Cemetery  v.  Boston,  158  Mass.  513,  35  Am. 
St.  Rep.  515,  33  N.  E.  695,  holding  statute  requiring  city  to  transfer  cemetery 
held  in  proprietary  right,  to  another  without  compensation,  void;  McKay  v. 
Reading,  184  Mass.  142,  68  N.  E.  43,  denying  municipal  liability  for  injuries  from 
tripping  over  rut  in  unenclosed  common;  Landau  v.  New  York,  90  App.  Div.  55, 
85  N.  Y.  Supp.  616,  denying  city's  liability  for  killing  of  one  by  explosion  of  fire- 
works, after  suspension  of  ordinance  against  them;  Fifield  v.  Phoenix,  4  Ariz.  287, 
24  L.R.A.  430,  36  Pac.  916,  holding  that  a  city  is  not  liable  for  injuries  caused  by 
a  discharge  of  fireworks,  because  the  city  authorities  suspended  for  a  day  the 
ordinance  forbidding  their  discharge;  Kerr  v.  Brookline,  208  Mass.  191,  34  L.R.A. 
(X.S.)  465,  94  N.  E.  257,  holding  town  not  liable  for  negligence  of  servants  in 
discharging  fireworks  in  celebrating  Fourth  of  July  on  public  playground. 

Cited  in  footnotes  to  Cohen  v.  New  York,  4  L.  R.  A.  406,  which  holds  city 
granting  right  to  store  wagon  in  street,  liable  for  resulting  injuries;  Shelby  v. 
Clagett,  5  L.  R.  A.  606,  which  holds  exhaustion  of  corporate  funds  not  relieved 
from  liability  for  injury  by  defective  sidewalk :  Culver  v.  Streator,  6  L.  R,  A.  270, 
which  holds  city  liable  for  negligence  of  employee  enforcing  ordinance  against 
unmuzzled  dogs  running  at  large;  Curran  v.  Boston,  8  L.  R.  A.  243,  which  holds 
city  not  liable  for  negligence  of  workhouse  officers;  Childrey  v.  Huntington, 
11  L.  R.  A.  313,  which  holds  city  not  liable  for  injury  to  policeman  while 
struggling  with  person  under  arrest,  by  catching  foot  in  hole  not  dangerous  to 
persons  walking;  Burns  v.  Bradford,  11  L.  R,  A.  726,  which  holds  city  not  liable 
L.R.A.  Au.  Vol.  I.— 30. 


3  L.R.A.  257]  L.  R.  A.  CASES  AS  AUTHORITIES.  466 

for  injury  due  to  slight  deviation  of  sidewalk  from  original  level;  Howard  v. 
Worcester,  12  L.  R.  A.  160,  which  holds  city  not  liable  for  negligence  in  blasting 
for  schoolhouse;  Teagar  v.  Flemingsburg,  53  L.  R.  A.  791,  which  holds  mere 
building  of  step  in  sidewalk  not  negligence  rendering  city  liable  for  injury  to 
pedestrians;  Harden  v.  Jackson,  66  L.R.A.  986,  which  holds  plank  sidewalk  not  so 
unsafe  as  to  render  city  liable  to  one  falling  thereon  becsause  his  cane  goes 
through,  although  the  edges  of  planks  have  become  so  decayed  as  not  to  with- 
stand pressure  of  cane. 

Cited  in  notes  (4  L.  R.  A.  721)  on  liability  in  case  of  concurrent  negligence; 
(5  L.  R.  A.  254,  10  L.  R.  A.  737)  on  municipal  liability  for  defective  highways; 
(8  L.  R.  A.  765)  on  damages  for  personal  injuries;  (9  L.  R.  A.  209,  210)  on 
municipal  liability  for  acts  or  omissions  of  officers  or  agents;  (12  L.  R.  A.  280) 
on  action  for  personal  injuries  caused  by  negligence;  (125  Am.  St.  Rep.  354)  on 
liability  of  city  on  grant  of  right  to  use  streets  and  sidewalks  for  fireworks  exhi- 
bition. 
Title  to  public  parks. 

Cited  in  Wulf  v.  Kansas  City,  77  Kan.  373,  94  Pac.  207,  on  the  title  to  public 
parks;  Codman  v.  Crocker,  203  Mass.  149,  25  L.R.A. (N.S.)  987,  89  N.  E.  177,  on 
che  title  to  Boston  commons  as  being  in  the  municipality. 
What  constitutes  a  street. 

Cited  in  Perry  v.  Com.  188  Mass.  461,  74  1ST.  E.  661,  on  what  constitutes  a 
street. 
Connection  with  nuisance  essential-  to  liability. 

Cited  in  note  (32  L.R.A.(X.S.)  896)  on  connection  with  or  participation  in 
nuisance  essential  to  responsibility. 

3  L.  R.  A.  259,  ELLIS  v.  LEEK,  127  111.  60,  20  N.  E.  218. 

3  L.  R.  A.  261,  BILLS  v.  GOSHEX,  117  Ind.  221,  20  N.  E.  115. 
Municipal  ordinances. 

Cited  in  Champer  v.  Greencastle,  138  Ind.  345,  24  L.  R.  A.  771,  46  Am.  St. 
Rep.  390,  35  N.  E.  14,  holding  ordinance  forbidding  erection  of  screens,  etc., 
before  saloons,  not  reasonable  exercise  of  power  to  regulate  places  where  liquors 
sold;  Birmingham  v.  Birmingham  Waterworks  Co.  139  Ala.  533,  36  So.  614, 
denying  power  of  city  to  limit  by  contract  amount  of  license  tax  of  water 
company. 

Cited  in  footnote  to  Kosciusko  v.  Slomberg,  12  L.  R.  A.  528,  which  holds  ordi- 
nance restricting  importation  of  second-hand  clothing  in  absence  of  epidemic,  void. 

Cited  in  notes   (13  L.  R.  A.  74)    on  scope  and  effect  of  municipal  ordinances; 
{33  L.  R.  A.  33)    on  how  far  proceedings  for  violations  of  ordinances  are  to  be 
regarded  as  prosecutions   for  crime. 
Power   to   enact    ordinances    must    be   exercised    in    manner   prescribed. 

Cited  in  Swindell  v.  State,  143  Ind.  163,  35  L.  R.  A.  53,  42  N.  E.  528  (second 
appeal,  146  Ind.  533,  45  X.  E.  700),  also  footnote  35  L.  R.  A.  50,  holding  ordi- 
nance providing  for  suspension  of  rules  by  two-thirds  vote  cannot  be  repealed  on 
motion  by  majority  vote;  People  ex  rel.  Conlon  v.  Mount,  186  111.  569,  58  N.  E. 
360,  holding  license  ordinance  cannot  be  amended  by  resolution;  State  ex  rel. 
Davis  v.  Newton  County,  165  Ind.  269,  74  N.  E.  1091,  6  A.  &  E.  Ann.  Gas.  468, 
holding  that  where  the  legislature  has  prescribed  a  specific  mode  in  which  a  sub- 
ordinate body  shall  proceed  in  a  particular  matter,  the  legislative  direction  must 
be  followed;  Chicago,  I.  &  L.  R.  Co.  v.  Salem,  166  Ind.  76,  76  N.  E.  631,  holding 
that  ordinance  can  be  amended  or  repealed  only  by  another  ordinance  enacted, 
with  like  formality  as  original  ordinance. 


467  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  265 

Distinguished  in  Hammond  v.  New  York,  C.  &  St.  L.  R.  Co.  5  Ind.  App.  531, 
31  X.  E.  817,  holding  signing  and  attesting  by  clerk  of  minutes,  substantial  com- 
pliance   with    statute    requiring    signing    and    attesting   of    ordinance    included 
therein. 
Licensing:  of  business  pursuits. 

Cited  in  Mt.  Clemens  v.  Sherbert,  122  Mich.  675,  81  N.  W.  926,  holding 
ordinance  prohibiting  peddling  without  license,  but  not  fixing  fee,  invalid; 
Risline  v.  Clements,  31  Ind.  App.  348,  66  N.  E.  924,  holding  note  given  in  pay- 
ment of  liquor  license  void,  where  ordinance  requires  payment  in  advance. 

Cited  in  footnotes  to  State  ex  rel.  Beek  v.  Wagener,  46  L.  R.  A.  442,  which 
sustains  statute  regulating  business  of  commission  merchants  handling  agri- 
cultural products;  Simrall  v.  Covington,  9  L.  R.  A.  556,  which  authorizes  license 
tax  against  insurance  agent  for  each  company  represented. 

Cited  in  note  (9  L.  R.  A.  788)  on  municipal  licenses. 
Invalidity   of   ordinances    not    operating:    uniformly. 

Cited  in  Indianapolis  v.  Bieler,  138  Ind.  37,  36  N.  E.  857,  holding  ordinance 
discriminating  between  residents  selling  bottled  beer  and  other  dealers  in  malt 
liquors,  invalid;  Richmond  v.  Dudley,  129  Ind.  115,  13  L.  R.  A.  589,  28  Am.  St. 
Rep.  180,  28  N.  E.  312,  holding  ordinance  restricting  storage  of  oils  not  specifying 
rules  and  conditions  nor  operating  uniformly,  invalid;  Sioux  Falls  v.  Kirby, 
6  S.  D.  68,  25  L.  R.  A.  623,  60  N.  W.  156,  holding  ordinance  requiring  permit 
to  build,  granting  of  which  depends  on  arbitrary  will  of  inspector,  invalid; 
State  v.  Tenant,  110  N.  C.  613,  15  L.  R.  A.  424,  28  Am.  St.  Rep.  715,  14  S.  E. 
387,  holding  ordinance  making  granting  of  building  permit  dependent  on  arbi- 
trary decision  of  aldermen,  invalid;  State  v.  Gerhardt,  145  Ind.  480,  33  L.  R.  A. 
327,  44  N.  E.  469  (dissenting  opinion),  majority  holding  power  to  permit 
carrying  on  other  business  where  liquors  sold,  depending  on  personal  fitness  of 
applicant,  does  not  give  arbitrary  authority;  Elkhart  v.  Murray,  165  Ind.  305, 
1  L.R.A.(X.S.)  943,  112  Am.  St.  Rep.  228,  75  N.  E.  593,  6  A.  &  E.  Ann.  Cas.  748, 
holding  an  ordinance  which  required  street  cars  to  have  a  particular  patented 
automatic  fender  or  one  equally  as  good  to  be  approved  by  council  was  void; 
"Ensley  v.  State,  172  Ind.  209,  88  N.  E.  62,  holding  invalid  an  ordinance,  which 
gave  the  city  council  power  to  determine  fitness  of  applicant  for  liquor  license, 
in  each  case,  without  prescribing  rules  for  doing  so. 

Cited  in  note  (123  Am.  St.  Rep.  44)  on  test  of  validity  of  municipal  ordinance 
as  denying  equal  protection  of  the  laws. 

3  L.  R.  A.  265,  BURXSVILLE  TURNP.  CO.  v.  STATE,  119  Ind.  382,  20  N.  E.  421. 
Mandamus,    when    issuable. 

Cited  in  State  ex  rel.  Kelley  v.  Bonnell,  119  Ind.  495,  21  N.  E.  1101,  holding 
that  mandamus  will  not  issue  to  compel  city  treasurer  to  accept  license  fee; 
State  ex  rel.  Roberts  v.  Bever,  143  Ind.  492,  41  N.  E.  802,  holding  mandamus 
issuable  to  compel  surveyor  to  inspect  contractor's  work  and  issue,  if  properly 
performed,  certificate  of  acceptance;  Wood  v.  State,  155  Ind.  4,  55  N.  E.  959, 
folding  mandamus  proper  to  enforce  payment  of  order  by  county  treasurer ;  State 
*x  rel.  Comerford  v.  Fitzpatrick,  45  La.  Ann.  278,  12  So.  353,  holding  that 
mandamus  does  not  lie  to  compel  signing  by  mayor  of  public  contract  not  con- 
forming to  ordinance;  State  ex  rel.  Minturn  v.  Elliott,  158  Ind.  172,  63  N.  E. 
222,  denying  writ  of  mandamus  to  compel  committee  to  place  candidate's  name 
on  ballots;  Auburn  v.  State.  170  Ind.  529,  83  N.  E.  997,  holding  mandamus  lies 
to  compel  a  public  officer  to  perform  a  ministerial  duty,  only  where  there  is  no 
•other  adequate  legal  remedy;  State  ex  rel.  Minturn  v.  Elliott,  158  Ind.  172,  63  X. 
E.  222,  holding  mandamus  "will  not  lie  to  compel  a  political  party's  central  com- 


I 


3  L.R.A.  265]  L.  R.  A.  CASES  AS  AUTHORITIES.  468 

mittee  to  place  the  name  of  a  candidate  upon  a  ballot  in  a  district  composed  of 
two  counties  where  act  applied  only  to  one. 

Cited  in  footnotes  to  Jackson  v.  State,  42  L.  R.  A.  792,  which  sustains  right  to 
mandamus  to  compel  reinstatement  of  pupil  whose  admission  arbitrarily  or 
capriciously  refused;  Port  Royal  Min.  Co.  v.  Hagood,  3  L.  R.  A.  841,  which  re- 
fuses to  compel  board  of  agriculture  by  mandamus  to  issue  license  to  mine 
phosphate  rock;  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188,  which 
denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum. 

Cited  in  notes  (11  L.  R.  A.  763)  on  mandamus  not  issuable  to  control  executive 
discretion;  (32  L.  R.  A.  575)  on  mandamus  to  enforce  by-law  of  corporation. 

3  L.  R.  A.  266,  WILSON  v.  DONALDSON,  117  Ind.  356,  10  Am.  St.  Rep.  48,  20 

N.  E.  250. 
Service  of  process  on  nonresident  temporarily  within  jurisdiction. 

Cited  in  Graves  v.  Graham,  19  Misc.  620,  44  N.  Y.  Supp.  415,  holding  non- 
resident submitting  to  service  under  special  agreement  entitled  to  vacation  thereof 
upon  plaintiff  repudiating  agreement. 

Distinguished  in  Levi  v.  Kaufman,  12  Ind.  App.  348,  39  N.  E.  1045,  and  Reed 
v.  Browning,  130  Ind.  577,  30  N.  E.  704,  holding  nonresident  voluntarily  in  state 
on  private  business  legally  served  with  process. 
Attendance    at   conrt   as   protection    i'roni    process. 

Cited  in  Fisk  v.  Westover,  4  S.  D.  235,  46  Am.  St.  Rep.  780,  55  N.  W.  961, 
and  Cooper  v.  Wyman,  122  N.  C.  787,  65  Am.  St.  Rep.  731,  29  S.  E.  947,  holding 
civil  process  cannot  be  served  on  nonresident  of  state  attending  court  as  suitor 
or  witness;  Ela  v.  Ela,  68  N.  H.  314,  36  Atl.  15;  Bolgiano  v.  Gilbert  Lock  Co. 
73  Md.  134,  20  Am.  St.  Rep.  582,  20  Atl.  788;  Malloy  v.  Brewer,  7  S.  D.  591, 
58  Am.  St.  Rep.  856,  64  N.  W.  1120, —  holding  nonresident  attending  court  as 
witness  cannot  be  served  with  civil  process;  Hicks  v.  Besuchet,  7  N.  D.  434.  6G 
Am.  St.  Rep.  665,  75  N.  W.  793,  holding  service  of  justice's  court  summons  on 
nonresident  of  county  attending  court  as  witness  and  litigant,  void;  Murray  v. 
Wilcox,  122  Iowa,  190,  64  L.  R.  A.  536,  97  N.  W.  1087,  holding  defendant  coming 
into  state  for  trial  in  accordance  with  bail  bond,  exempt  from  service  in  civil 
case;  Bolz  v.  Crone,  64  Kan.  572,  67  Pac.  1108,  holding  witnesses  attending 
court  outside  of  jurisdiction  exempt  from  service  of  process;  Guynn  v.  McDaneld. 

4  Idaho,  608,  95  Am.  St.  Rep.   158,  43  Pac.  74,  sustaining  defendant's  right  to 
serve  summons  on  nonresident  plaintiff;  Davis  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co. 
146  Fed.  407,  on  the  exemption  from  service  of  process  of  nonresident  when  at- 
tending court;   Long  v.  Hawken,  114  Md.  237,  —  L.R.A.(N".S.)   — ,  79  Atl.  190; 
Martin  v.  Bacon,  76  Ark.  160,  113  Am.  St.  Rep.  81,  88  S.  W.  863,  6  A.  &  E.  Ann. 
Cas.  336, — holding  that  a  party  cannot  be  lawfully  served  with  civil  process  while 
attending  court  in  a  state,  not  his  residence,  either  as  witness  or  party,  or  while 
going  or  returning;  Minnich  v.  Packard,  42  Ind.  App.  373,  85  N.  E.  787,  holding 
a  nonresident  who  came  into  state  for  the  purpose  of  attending  trial  cannot  be 
served  with  summons. 

Cited  in  footnotes  to  Monroe  v.  Atkinson,  52  L.  R.  A.  189,  which  denies  privi- 
lege from  arrest  to  owner  of  libeled  vessel  going  to  court  at  request  of  purchaser 
under  contract  for  sale  free  from  liens;  Hoffman  v.  Circuit  Judge,  38  L.  R.  A. 
663,  which  holds  attorney  exempt  from  service  of  process  while  going  to  own 
county  from  supreme  court;  Holyoke  &  S.  H.  Falls  Ice  Co.  v.  Amsden,  21  L.  R.  A. 
319,  which  holds  party  or  witness  not  exempt  from  service  of  process  in  passing 
through  other  state  to  attend  court;  Parker  v.  Marco,  20  L.  R.  A.  45,  which 
holds  exempt  from  service  nonresident  sued  in  Federal  court. 


469  L.  E.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  273 

Cited  in  notes  (25  L.  R.  A.  721,  722,  723,  727,  729,  730,  731)  on  privilege  of 
nonresident  witness  from  suit;  (19  L.  R.  A.  561)  on  effect  upon  suit  of  discharge 
from  arrest  of  one  arrested  while  attending  court;  (76  Am.  St.  Rep.  538,  539) 
on  exemption  from  service  of  civil  process  of  nonresident  parties  and  witnesses. 
Harmonious  construction  of  statutes. 

Cited  in  Minnich  v.  Packard,  42  Ind.  App.  373,  85  N.  E.  787,  on  the  rule  that 
statutes  should  be  construed  with  regard  to  the  body  of  the  law  and  not  inde- 
pendently. 

3  L.  R.  A.  269,  PEDRICK  v.  RIPON,  73  Wis.  622,  41  N.  W.  705. 

Municipal  acts  not   enjoinable  by  citizens  unless  private  rlgrht   Invaded. 

Cited  in  Linden  Land  Co.  v.  Milwaukee  Electric  R.  &  Light  Co.  107  Wis.  502, 
83  N.  W.  851,  holding  citizen  cannot  enjoin  acceptance  of  franchise  by  railway 
company;  Muhler  v.  Hedekin,  119  Ind.  485,  20  N.  E.  700,  holding  equity  cannot 
enjoin  investigation  by  common  council  of  charges  against,  or  removal  from  office 
of,  municipal  officers;  State  ex  rel.  Sullivan  v.  Drake,  130  Wis.  153,  109  X.  W. 
982,  10  A.  &  E.  Ann.  Cas.  860,  on  the  necessity  of  direct  effect  upon  rights  to  en- 
title person  to  writ  of  certiorari;  Tampa  Gas  Co.  v.  Tampa,  44  Fla.  815,  33  So. 
465,  holding  that  where  the  city  cannot  enter  into  a  lighting  contract  unless 
ratified  by  the  freeholders  by  an  election,  an  injunction  will  not  issue  to  restrain 
the  entering  to  such  contract  before  the  election  is  held;  Torgrinson  v.  Norwich 
School  Dist.  No.  31,  14  N.  D.  18,  103  N.  W.  414,  holding  that  a  court  will  not 
restrain  a  tax  levy  where  the  party  is  only  injured  by  having  an  illegal  tax  im- 
posed upon  his  property;  Foster  v.  Rowe,  132  Wis.  271,  111  N.  W.  688,  holding 
that  bill  in  equity  will  not  lie  by  a  tax  payer  in  behalf  of  himself  and  others  to 
restrain  the  levy  and  collection  or  to  set  aside  the  taxes  of  a  municipality  gen- 
erally. 

Cited  in  note  (61  L.  R.  A.  76)  on  establishment  and  regulation  of  municipal 
water  supply. 

3  L.  R.  A.  271,  ANDRUS  v.  HOME  INS.  CO.  73  Wis.  642,  41  N.  W.  956. 
Compulsory  reference "When  proper. 

Cited  in  State  ex  rel.  Broatch  v.  Moores,  56  Neb.  38,  76  N.  W.  530  (dissenting 
opinion),  majority  holding  compulsory  reference  proper  in  quo  warranto  pro- 
ceeding; Dreveskracht  v.  First  State  Bank,  16  N.  D.  558,  113  N.  W.  1032,  holding 
that  a  compulsory  reference  will  not  be  ordered  unless  it  appears  that  a  long 
account  will  have  to  be  examined;  Killingsted  v.  Meigs,  147  Wis.  514,  133  N.  W. 
632,  denying  compulsory  reference  in  mechanic's  lien  foreclosure,  not  involving 
long  account. 

Distinguished  in  Brillion  Lumber  Co.  v.  Barnard,  131  Wis.  292,  111  N.  W.  483, 
holding  that  a  reference  will  be  ordered  where  it  involved  the  examination  of  a 
long  account. 

3  L.  R.  A.  273,  GRISSOM  v.  COMMERCIAL  NAT.  BANK,  87  Tenn.  350,  10  Am. 

St.  Rep.  669,  10  S.  W.  774. 
Bank's  authority  to  receive  payment. 

Cited  in  Bank  of  Montreal  v.  Ingerson,  105  Iowa,  361,  75  N.  W.  351,  holding 
bank  not  authorized  to  receive  payment  of  note  payable  there,  not  deposited  for 
collection;  State  Nat.  Bank  v.  Hyatt,  75  Ark.  174,  112  Am.  St.  Rep.  50,  86  S.  W. 
1002,  5  A.  &  E.  Ann.  Cas.  296,  holding  that  a  bank  at  which  a  note  is  made  pay- 
able is  not  authorized  to  receive  payment  thereby. 

Cited  in  footnote  to  First  Nat.  Bank  v.  Peltz,  30  L.  R.  A.  832,  which  holds 


I 


3  L.R.A.  273]  L.  R.  A.  CASES  AS  AUTHORITIES.  419 

bank  not  bound  to  apply  to  payment  of  note  deposit  account  of  first  indorser 
for  whose  accommodation  note  made. 

Cited  in  notes  (21  L.  R.  A.  441)  on  banking  customs  as  to  maturity  and  pay- 
ment; (4  L.R.A.  111)  on  banking;  application  of  money  due  depositor;  (77  Am. 
St.  Rep.  614)  on  authority  of  banks  acting  as  collecting  agents. 

Distinguished  in  Merchants  &  P.  Bank  v.  Meyer,  56  Ark.  510,  20  S.  W.  406, 
holding  bank  not  required  to  pay  note  payable  thereat  out  of  deposit  after 
maturity. 

Disapproved  in  Bedford  Bank  v.  Acoam,  125  Ind.  587,  9  L.  R.  A.  561,  21  Am. 
St.  Rep.  258,  25  N.  E.  713,  holding  bank  may  pay  note  payable  at  its  place  of 
business  out  of  maker's  general  deposit;  Hubbert  v.  Home  Bank,  20  Ont.  L.  Rep. 
654,  holding  that  naming  bank  as  place  of  payment  of  note  authorizes  it  to  pay 
it. 
Application  of  deposits  to  debts  of  depositor. 

Cited  in  First  Nat.  Bank  v.  National  Surety  Co.  66  L.R.A.  781,  64  C.  C.  A.  601r 
130  Fed.  405,  on  the  application  of  deposits  to  debts  on  overdrafts. 
Relation  between  banker  and  depositor. 

Cited  in  notes  (22  Am.  St.  Rep.  834;  33  Am.  St.  Rep.  226;  86  Am.  St.  Rep. 
777)  on  relation  between  banker  and  depositor. 
Surety's   liability. 

Cited  in  First  Nat.  Bank  v.  National  Surety  Co.  130  Fed.  405,  holding  com- 
pany, surety  for  employee  who  falsified  depositor's  account,  liable  for  difference 
between  deposits  and  checks;  Davenport  v.  State  Bkg.  Co.  126  Ga.  141,  8  L.R.A. 
(X.S.)  951,  115  Am.  St.  Rep.  68,  54  S.  E.  977,  7  A.  &  E.  Ann.  Cas.  1000,  on  what 
will  release  a  surety's  liability. 
Custom  as  to  notification  of  consignee. 

Cited  in  Pennsylvania  R,  Co.  v.  Naive  (Tenn.)   64  L.  R.  A.  446,  79  S.  W.  124,. 
holding  carrier   liable   for   failure   to   notify   consignee   of  arrival   of   perishable 
goods,  where  custom  to  suspend  business  on  following  day. 
Persons  bonud  by  local  cnstom. 

Distinguished  in  Pennsylvania  R.  C.  Co.  v.  Naive,  112  Tenn.  254.  64  L.R.A.  443r 
79  S.  W.  124,  holding  that  one  who  ships  goods  to  an  agant  at  a  place  where  a 
general  and  uniform  custom  prevails  in  regard  to  notice  to  consignee  is  bound 
by  such  custom  though  he  had  no  actual  knowledge  of  it. 

3  L.  R.  A.  282,  LOUISVILLE  &  N.  R.  CO.  v.  MARTIN,  87  Tenn.  398,  10  S.  W.  772. 
Who  are   fellow  servants. 

Cited  in  Hopkins  v.  Nashville,  C.  &  St.  L.  R.  Co.  96  Tenn.  415,  32  L.  R.  A.  357, 
34  S.  W.  1029,  holding  engineer  assuming  no  control  over  fireman,  though  having 
right  in  conductor's  absence,  fellow  servant;  Louisville  &  N.  R.  Co.  v.  Stuber,  54 
L.  R.  A.  698,  48  C.  C.  A.  151,  108  Fed.  936,  holding  foreman  of  water  supply, 
required  in  discharge  of  duties  to  ride  from  station  to  station,  fellow  servant  of 
engineer;  Ohio  River  &  C.  R.  Co.  v.  Edwards,  111  Tenn.  45,  76  S.  W.  897,  hold- 
ing that  a  subforeman  of  a  section  crew  assisting  in  bringing  up  a  hand-car  was 
a  fellow  servant  of  the  members  of  the  crew;  Louisville  &  N.  R.  Co.  v.  Dillard, 
114  Tenn.  244,  69  L.R.A.  747,  108  Am.  St.  Rep.  894,  86  S.  W.  313,  4  A.  &  E.  Ann. 
Cas.  1028,  holding  that  a  conductor  on  a  passenger  train  and  a  brakeman  on  a- 
freight  train  were  fellow  servants. 

Cited  in  footnotes  to  Byrnes  v.  New  York,  L.  E.  &  W.  R.  Co.  4  L.  R.  A.  151, 
which  holds  station  agent  and  brakeman  fellow  servants;  Fagundes  v.  Central  P. 
R.  Co.  3  L.  R.  A.  824,  which  holds  laborer  removing  snow  from  track  fellovr 
servant  of  track  walker  and  conductor. 


471  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  289 

Cited  in  notes  (5  L.  R.  A.  735)  on  who  are  fellow  servants;  (51  L.  R,  A.  620) 
on  relation  of  supervising  employees  to  their  subordinates;  (51  L.  R.  A.  541, 
552)  on  doctrine  that  all  superior  servants  are  vice  principals  as  regards  their 
subordinates;  (50  L.  R.  A.  456)  on  what  servants  deemed  in  same  common  em- 
ployment, apart  from  statutes,  where  no  questions  as  to  vice  principalship  arise; 
(11  Am.  St.  Rep.  569)  on  who  are  fellow  servants. 

3  L.  R.  A.  284,  FIRST  NAT.  BANK  v.  PAYNE,  85  Va.  890,  9  S.  E.  153. 

3  L.  R.  A.  287,  LAFFEY  v.  GRUMMOND,  74  Mich.  186,  16  Am.  St.  Rep.  624, 

41  N.  W.  894. 
Liability  of  carrier  for  bagrsa&e  checked. 

Cited  in  notes  (55  L.  R.  A.  655)  on  liability  of  carrier  for  baggage  not  accom- 
panied by  passenger;  (36  L.  R.  A.  786)  on  duty  of  common  carrier  when  baggage 
not  called  for;  (3  L.R.A.(N.S.)  185)  on  termination  of  carrier's  liability  for  bag- 
gage; (37  L.  ed.  U.  S.  588)  on  liability  for  loss  of  baggage;  (97  Am.  St.  Rep.  102) 
as  to  when  carrier's  liability  is  reduced  to  that  of  warehouseman. 

Distinguished  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Tyler,  9  Ind.  App.  693, 
35  X.  E.  523,  holding  carrier  must  show  valid  excuse  for  nondelivery  of  baggage. 

3  L.  R.  A.  289,  HENDERSON  BLDG.  &  L.  ASSO.  v.  JOHNSON,  88  Ky.  191,  10 
S.  W.  787. 

Followed  without  special  discussion  in  United  States  Sav.  &  L.  Co.  v.  Scott, 
98  Ky.  699,  34  S.  W.  235  and  Locknane  v.  United  States  Sav.  &  L.  Co.  103  Ky. 
269,  44  S.  W.  977. 
Usury   in   loans   by   building?   and   loan   associations. 

Cited  in  Southern  Bldg.  &  L.  Asso.  v.  Harris,  98  Ky.  47,  32  S.  W.  261,  holding 
agreement  to  pay  interest  on  entire  loan  though  principal  being  constantly  re- 
duced, usurious;  Coltrane  v.  Baltimore  Bldg.  &  L.  Asso.  110  Fed.  298,  holding 
exaction  of  more  than  legal  interest  by  loan  association,  whatever  form  transac- 
tion may  take,  usury;  Simpson  v.  Kentucky  Citizens'  Bldg.  &  L.  Asso.  101  Ky. 
517,  41  S.  W.  570,  holding  loan  association  may  require  payment  of  reasonable 
dues  for  maintenance,  besides  legal  interest;  Stanley  v.  Verity,  98  Mo.  App.  637, 
73  S.  W.  727,  holding  loan  association  taking  more  than  legal  interest  by  way 
of  dues  and  fines,  not  guilty  of  usury. 

Cited  in  note  (18  L.  R.  A.  134)  on  usury  in  loans  by  building  associations. 

Distinguished  in  Stanley  v.  Verity,  98  Mo.  App.  637,  73  S.  W.  727,  holding  that 
where  the  usury  law  itself  exempted  building  and  loan  associations  from  its  oper- 
ation, the  contract  of  membership  was  not  a  fraud  on  the  usury  law. 

Not  followed  in  United  States  Sav.  &  L.  Co.  v.  Harris,  113  Fed.  30,  holding 
exaction  of  premiums  from  members  of  loan  associations,  besides  interest,  not 
usury. 
Constitutionality  of  acts  authorizing?  building1  and  loan  associations. 

Cited  in  Simpson  v.  Kentucky  Citizens  Bldg.  &  L.  Asso.  101  Ky.  508,  41 
S.  W.  570,  holding  law  permitting  loan  association  to  exact  premiums  in  addi- 
tion to  legal  interest  unconstitutional  as  special  act  regulating  rate  of  interest. 

Cited  in  footnotes  to  Julien  v.  Model  Bldg.  Loan  &  Invest.  Asso.  61  L.  R.  A.  668, 
which  sustains  statute  giving  mortgages  to  loan  associations  priority  over  all 
liens  filed  after  date  of  their  record;  Julien  v.  Model  Bldg.  Loan  &  Invest.  Asso. 
61  L.  R.  A.  668,  sustaining  statute  giving  building  and  loan  association  mort- 
gages priority  over  subsequent  liens. 

Cited  in  note  (26  L.R.A.(N.S.)  1137)  on  constitutionality  of  exemption  of 
building  and  loan  associations  from  general  usury  laws 


I 


3  L.R.A.  289]  L.  R.  A.  CASES  AS  AUTHORITIES.  472 

Disapproved  in  People's  Bldg.  &  L.  Asso.  v.  Billing,  104  Mich.  191,  62  N.  W. 
373,  holding  statute  authorizing  formation  of  building  ana  loan  associations  not 
unconstitutional  as  class  legislation;  Cramer  v.  Southern  Ohio  Loan  &  T.  Co.  72 
Ohio  St.  416,  69  L.R.A.  422,  74  X.  E.  200,  2  A.  &  E.  Ann.  Cas.  990,  holding  that 
a  statute  permitting  building  and  loan  associations  to  assess  members,  though 
amounting  to  a  usurious  rate,  was  constitutional. 

3  L.  R.  A.  291,  KRUGER  v.  SPIETH,  8  Mont.  482,  20  Pac.  664. 

Followed  without  discussion  in  Ferguson  v.  Speith,  8  Mont.  493,  20  Pac.  807  •, 
€obb  v.  Speith,  8  Mont.  494,  20  Pac.  806;  Maxey  v.  Speith,  8  Mont.  494,  20  Pac. 
806;  Bozeman  Nat.  Bank  v.  Speith,  8  Mont.  498,  20  Pac.  806. 
Attachment    against    surviving    partner. 

Cited  in  Ryan  v.  Maxey,  14  Mont.  82,  35  Pac.  515,  holding  attachment  liens 
not  waived  or  void,  by  sale  of  property  under  execution,  pending  appeals  from 
orders  dissolving  attachment,  or  by  reason  of  subsequent  statute. 
Surviving?   partners. 

Cited  in  Ryan  v.  Spieth,  18  Mont.  45,  44  Pac.  403,  holding  creditor's  complaint 
against  administratrix  for  conversion  of  estate  need  not  allege  presentment  of 
claim  under  probate  rule;  Burchinell  v.  Koon,  8  Colo.  App.  465,  46  Pac.  932, 
holding  that  surviving  partner  may  mortgage  firm  assets  to  firm's  creditor; 
People's  Nat.  Bank  v.  Wilcox,  136  Mich.  577,  100  N.  W.  24,  4  A.  &  E.  Aim.  Cas. 
465,  on  right  of  surviving  partner  to  mortgage  firm  assets. 

3  L.  R.  A.  295,  STATE  v.  NARRAGANSETT,  16  R.  I.  424,  16  Atl.  901. 
Legislative    construction. 

Followed  in  Wood  v.  Quimby,  20  R.  I.  486,  40  Atl.  161,  holding  act  for  incoi- 
poration  of  fire  district  not  within  R.  I.  Const,  art.  4,  §  17. 

Cited  in  State  ex  rel.  Cunmiings  v.  Crawford,  17  R.  I.  292,  21  Atl.  546,  holding 
fire  wards  in  fire  district  not  "civil  officers"  requiring  incumbents  to  be  qualified 
electors;  Smith  v.  Westerly,  19  R.  I.  451,  35  Atl.  526,  holding  conferring  power 
to  take  property  for  waterworks  after  vote  therefor,  includes  authority  to  con- 
struct, irrespective  of  contrary  legislative  construction;  Re  Voting  Machine,  19 
R.  I.  730,  36  L.  R.  A.  547,  36  Atl.  716,  holding  law  authorizing  voting  machine 
punching  vote  on  printed  ballot,  within  constitutional  provision  for  voting  by 
ballot  or  paper  vote  until  otherwise  prescribed,  irrespective  of  limitations  in 
framers'  minds;  Phillips  v.  Baltimore,  110  Md.  439,  25  L.R.A.(N.S.)  716,  72  Atl. 
902,  holding  that  a  statute  relating  to  right  to  sue  any  corporation  wherever  it 
had  its  principal  office,  did  not  apply  to  municipal  corporations. 
Presumption  of  validity  of  lu\v. 

Cited  in  Carr  v.  Brown,  20  R.  I.  223,  38  L.  R.  A.  297,  78  Am.  St.  Rep.  855,  38 
Atl.  9,  holding  statute  authorizing  administration  of  estate  of  person  not  heard 
from  for  seven  years,  without  due  process;  State  v.  Dalton,  22  R.  I.  82,  48  L.  R. 
A.  779,  84  Am.  St.  Rep.  818,  46  Atl.  234,  holding  prohibition  of  giving  "trading 
stamps"  with  sales,  not  within  police  power;  Crafts  v.  Ray,  22  R.  I.  186,  49 
L.  R.  A.  608,  46  Atl.  1043,  holding  act  for  exemption  from  taxation  because  of 
location  of  factory,  not  unconstitutional  as  unfair  distribution  of  burden  of  state : 
State  v.  Foster,  22  R.  I.  173,  50  L.  R.  A.  343.  46  Atl.  833,  holding  act  to  regulate 
transient  dealers,  imposing  burdensome  restrictions  and  license  fees,  valid  where 
unconstitutionality  not  clear. 
Statutory  limitation  of  hours  of  labor. 

Cited  in  Re  Ten  Hour  Law,  24  R.  I.  606,  61  L.  R.  A.  614,  54  Atl.  602,  sustain- 
ing act  limiting  hours  of  labor  of  employees  in  street  car  service. 


473  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  299 

Corporate  potver*. 

Cited  in  Brown  v.  Narragansett  District,  21  R.  I.  503,  44  Atl.  932,  holding  that 
Xarragansett  district  council  has  same  power  to  abate  nuisances  as  other  towns. 

Cited  in  footnote  to  Slocum  v.  Head,  50  L.  R.  A.  324,  which  holds  persons  at- 
tempting to  incorporate  by  filing  original  articles,  instead  of  copies,  entitled  to 
all  rights  of  corporation  as  to  persons  dealing  with  them  as  such. 

3  L.  R.  A.  299,  STANDIFORD  v.  STANDIFORD,  97  Mo.  231,  10  S.  W.  836. 
Sufficiency    of    delivery. 

Cited  in  Knoche  v.  Perry,  90  Mo.  App.  487,  holding  execution,  acknowledg- 
ment, and  recording  of  bill  of  sale  prima  facie  evidence  of  delivery  to  and  ac- 
ceptance by  grantee  therein;  Tygard  v.  McComb,  54  Mo.  App.  92,  holding  gift 
inter  vivos  not  complete  where  intended  to  be  effective  in  event  of  death;  Mar- 
shall v.  Hartzfelt,  98  Mo.  App.  181,  71  S.  W.  1061,  holding  delivery  of  deed  to 
older  brother  for  younger,  valid;  Griffin  v.  Mclntosh,  176  Mo.  400,  75  S.  W.  677, 
holding  deed  delivered  to  grantee  to  take  care  of,  title  not  to  vest  till  grantor's 
death,  inoperative. 
Of  deeds  generally. 

Cited  in  White  v.  Pollock,  117  Mo.  473,  38  Am.  St.  Rep.  671,  22  S.  W.  1077, 
and  Sneathen  v.  Sneathen,  104  Mo.  209,  24  Am.  St.  Rep.  326,  16  S.  W.  497,  both 
holding  delivery  of  deed  to  third  person  without  reservation  and  with  intent 
of  grant  in  prcesenti,  sufficient;  Rumsey  v.  Otis,  133  Mo.  96,  34  S.  W.  551,  hold- 
ing absolute  deed  to  wife  of  purchaser  by  latter's  direction  with  intent  to  pass 
title,  sufficiently  delivered  if  to  agent  designated  by  husband,  although  later 
found  in  husband's  possession;  Appleman  v.  Appleman,  140  Mo.  313,  62  Am.  St. 
Rep.  732,  41  S.  W.  794,  holding  deed  sealed  and  acknowledged  and  left  with 
scrivener  until  "called  for  by  proper  person,"  sufficiently,  although  not  actually, 
delivered  to  daughter  assenting  and  going  into  possession  thereunder;  Hamilton 
v.  Armstrong,  120  Mo.  624,  25  S.  W.  545,  holding  authorized  delivery  to  grantee's 
husband,  of  deed  prepared  under  grantor's  positive  direction  and  knowledge,  suf- 
ficient; Crowder  v.  Searcy,  103  Mo.  118,  15  S.  W.  346,  holding  corrected  deed 
delivered  where  power  and  money  for  recording  original  deed  applicable  to  it; 
Hall  v.  Hall,  107  Mo.  107,  17  S.  W.  811,  holding  delivery  of  deed  in  name  of 
purchaser's  infant,  to  father  sufficient  as  to  infant;  Williams  v.  Latham,  113  Mo. 
175,  20  S.  W.  99,  holding  delivery  of  deed,  reserving  possession  and  rents  for 
life,  to  trustee  for  delivery  after  grantor's  death,  good;  Abbe  v.  Justus,  60  Mo. 
App.  306,  sustaining  finding  of  delivery  of  deed  first  given  in  escrow  with  intent 
to  deed;  Shanklin  v.  McCracken,  151  Mo.  595,  52  S.  W.  339,  holding  deed  re- 
maining in  grantor's  possession  not  delivered  as  against  other  creditors,  where 
made  to  divert  dower  and  without  intention  to  eifect  preference;  Lang  v.  Smith, 
37  W.  Va.  735,  17  S.  E.  213,  holding  deed  executed  and  ready  for  delivery  found 
with  deceased  grantor's  papers,  void  where  no  previous  delivery  made  or  sub- 
sequently authorized;  Flynn  v.  Flynn,  17  Idaho,  161,  104  Pac.  1030,  holding  that 
where  the  actions  of  the  grantor  show  an  intention  to  make  it  his  deed,  there  is 
a  good  delivery;  Coulson  v.  Coulson,  180  Mo.  715,  79  S.  W.  473,  holding  where 
grantor  took  child  grantee  to  notary  and  executed  a  deed  and  delivered  it  to  the 
notary  to  have  it  registered,  it  was  a  sufficient  delivery:  Cook  v.  Newby,  2]3  Mo. 
491,  112  S.  W.  272,  holding  a  delivery  of  a  deed  to  another,  reserving  right  of 
--ion  for  life,  to  be  delivered  after  death,  not  reserving  any  title,  was  a  good 
delivery;  Re  Cornelius,  151  Cal.  552.  91  Pac.  329,  holding  a  delivery  of  an  absolute 
deed  by  one  who  expected  to  die  presently  to  a  third  person  to  be  delivered  after 
death  is  sufficient;  Bunn  v.  Stuart,  183  Mo.  384,  81  S.  W.  1091,  holding  a  deliv- 
ery to  the  grantees  merely  to  hold  and  return  when  demanded,  was  not  sufficient 


3  L.R.A.  299]  L.  R.  A.  CASES  AS  AUTHORITIES.  474 

to  pass  title;  Givens  v.  Ott,  222  Mo.  411,  121  S.  W.  23,  holding,  where  grantor 
died  before  acknowledgment  was  executed,  there  was  no  delivery;  Terry  v.  Glover, 
235  Mo.  550,  139  S.  W.  337,  holding  that  deed  was  not  delivered,  where  husband 
placed  it  in  his  safe  deposit  box,  though  wife,  grantee,  had  key  to  box;  Zeitlow 
v.  Zeitlow,  84  Kan.  718,  115  Pac.  573,  holding  delivery  sufficient,  where  notary 
was  directed  by  grantor,  in  presence  of  grantee,  to  mail  deed  to  certain  person 
and  notary  placed  deed  in  envelope  and  forgot  it  and  it  was  lost. 

Cited  in  footnotes  to  Strough  v.  Wilder,  7  L.  R.  A.  555,  which  holds  possession 
prima  facie  evidence  of  delivery  of  deed;  Cook  v.  Patrick,  11  L.  R.  A.  573,  which 
holds  delivery  of  deed  to  third  person  paying  for  property,  sufficient  delivery  to 
grantees;  Martin  v.  Flaharty,  19  L.  R.  A.  242,  which  holds  manual  delivery  of: 
deed  not  essential;  Parrot  v.  Avery,  22  L.  R.  A.  153,  which  holds  execution  of: 
deed  in  presence  of  \vitness  not  sufficient  delivery.  I 

Cited  in  notes  (12  L.  R  A.  171,  172)  on  delivery  of  deed  essential  to  transfer 
title;  (13  L.  R.  A.  677)  on  essentials  to  validity  of  deed;  (54  L.  R.  A.  876)  on 
delivery  of  deed  to  third  person;  or  record,  or  delivery  for  record,  by  grantor; 
(17  Am.  St.  Rep.  348;  53  Am.  St.  Rep.  545,  546,  554)  on  what  is  a  delivery  of  a 
deed. 

—  Beneficial  deeds. 

Cited  in  McNear  v.  Williamson,  166  Mo.  368,  66  S.  W.  160,  holding  acceptance 
of  deed  beneficial  to  minor,  presumed;  Fischer  Leaf  Co.  v.  Whipple,  51  Mo.  App. 
186,  holding  presumption  of  acceptance  of  beneficial  deed  not  obtaining  where 
third  party's  right  intervened  between  grantor's  act  and  actual  acceptance; 
Chambers  v.  Chambers,  227  Mo.  284,  137  Am.  St.  Rep.  567,  127  S.  W.  86,  holding 
that  acceptance  will  be  presumed,  where  grant  is  beneficial  and  grantee  is  infant 
child  of  grantor. 

—  Deed  of  trust. 

Cited  in  Kingman  v.  Cornell-Tibbetts  Mach.  &  Buggy  Co.  150  Mo.  311,  51 
S.  W.  727,  holding  delivery  of  deed  of  trust  accepted  by  trustee,  sufficient  as 
against  creditors  attaching  before  beneficiaries'  acceptance. 

— —  Assignment. 

Cited  in  Erickson  v.  Kelly,  9  N.  D.  16,  81  N.  W.  77,  holding  delivery  of  assign- 
ment not  shown  in  absence  of  intent  or  placing  beyond  control. 

3  L.  R.  A.  302,  ORLEANS  COUNTY  NAT.  BANK  v.  MOORE,  112  N.  Y.  543, 

8  Am.  St.  Rep.  775,  20  N.  E.  357. 
Application  of  proceeds  of  involuntary  sale. 

Cited  in  Bergdoll  v.  Sopp,  227  Pa.  366,  76  Atl.  64,  holding  that  the  proceeds  of 
«ale  of  land,  made  involuntarily,  must  be  apportioned  pro  tanto,  for  the  relief 
of  the  surety;  Sengel  v.  Patrick,  80  Ark.  387,  97  S.  W.  448,  holding  that  the 
proceeds  should  be  applied  to  prior  incumbrances  where  they  were  all  owned  by 
the  same  person  and  no  agreement  between  the  parties;  Re  Georgi,  2  Gibbons.  Sur. 
Rep.  279,  holding  that  proceeds  on  foreclosure  of  mortgage  secured  by  two  notes, 
•upon  one  of  which  decedent  is  liable,  must  be  applied  ratably  on  both  notes. 

Cited  in  note   (96  Am.  St.  Rep.  81)   on  application  of  payments  under  fore- 
closure or  judicial  sales. 
Application  as  question   of  law. 

Cited  in  American  Surety  Co.  v.  Crow.  22  Misc.  576,  49  N.  Y.  Supp.  946,  holding 
application  of  proceeds  of  attachment  for  court,  in  absence  of  debtor's  voluntary 
act  before  trial;  Crisman  v.  Lanterman,  149  Cal.  658,  117  Am.  St.  Rep.  167,  87 
Pac.  89,  holding  that  the  application  is  to  be  made  by  the  court  according  to  the 
equities  of  the  case. 


475  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.I!. A.  308 

Distinguished  in  Wanamaker  v.  Powers,  102  App.  Div.  491,  93  N.  Y.  Supp.  19; 
Bayer  v.  Lugar,  106  App.  Div.  525,  94  X.  Y.  Supp.  802,— holding  that  the  creditor 
may  apply  money  voluntarily  paid  upon  such  of  the  debt  as  he  sees  fit  unless 
the  debtor  tells  upon  what  it  is  to  apply. 
Application    pro    rntu. 

Cited  in  Re  Georgi,  21  Misc.  424,  47  N.  Y.  Supp.  1061,  holding  mortgagee  to 
apply  proceeds  of  foreclosure  upon  notes  pro  rata;  Armstrong  v.  McLean,  153 
N.  Y.  495,  47  N.  E.  912,  requiring  proceeds  from  foreclosure  of  collateral  for  all 
debts  to  be  applied  pro  rata  in  absence  of  directions  in  mortgage;  Sanford  v.  Van 
Arsdall,  53  Hun,  78,  6  N.  Y.  Supp.  494,  holding  mortgagee  cannot  arbitrarily 
apply  rents  received  from  mortgagor's  tenants;  Armstrong  v.  McLean,  92  Hun, 
398,  36  N.  Y.  Supp.  764,  holding  mortgagee  foreclosing  security  for  debtor's  gen- 
eral indebtedness  to  him,  must  apply  proceeds  pro  rata  upon  all,  including  debts 
specially  secured;  Cohen  v.  L'Engle,  29  Fla.  666,  11  So.  44,  holding  payments  by 
assignee  for  creditors  to  be  applied  pro  rata,  irrespective  of  independent  col- 
lateral or  seniority;  Fulton  Grain  &  Mill.  Co.  v.  Anglim,  34  App.  Div.  165,  54 
N.  Y.  Supp.  632,  holding  moneys  stipulated  to  be  applied  upon  purchase  not  ap- 
plicable to  another  contract  by  vendor  and  vendee,  to  surety's  prejudice;  Taylor 
v.  Simpkins,  38  Misc.  248,  77  N.  Y.  Supp.  591,  holding  proceeds  of  foreclosure  to 
be  applied  on  previous  judgment  against  guarantor  of  note;  Patrick  v.  National 
Bank  of  Commerce,  63  Neb.  209,  88  N.  W.  183,  holding  proceeds  of  mortgage  sale 
should  be  applied  ratably  on  all  notes  secured,  though  some  are  outlawed,  and 
deficiency  judgment  entered  for  balance  due  upon  those  not  outlawed;  Bostick  v. 
Jacobs,  133  Ala.  347,  91  Am.  St.  Rep.  36,  32  So.  136,  holding  surety  upon  notes 
discharged  to  extent  of  application  of  proceeds  of  foreclosure. 

Cited  in  note  (24  L.  R.  A.  800)  on  priority  of  notes  falling  due  at  different 
times  secured  by  the  same  mortgage. 

Distinguished  in  Barnes  v.  Gushing,  71  App.  Div.  374,  75  N.  Y.  Supp.  953,  hold- 
ing receiver's  dividend  applicable  to  a  first  bond  expiring  before  insolvency,  and 
not  pro  rata  between  that  and  successor;  First  Nat.  Bank  v.  Finck,  100  Wis.  453, 
76  N.  W.  608,  holding  proceeds  of  execution  under  judgment  for  entire  indebt- 
edness under  both  individual  and  joint  notes,  applicable  by  creditors  exclusively 
to  former. 

Denied  in  Tolerton  &  S.  Co.  v.  Roberts,  115  Iowa,  474,  91  Am.  St.  Rep.  171,  88 
X.  \V.  966,  and  Smith  v.  Moore,  112  Iowa,  67,  83  N.  W.  813,  both  holding  mortgagee 
may  apply  insufficient  proceeds  of  foreclosure  on  claims  without  other  security. 
"When  payments  are   voluntary. 

Cited  in  note  (25  Am.  St.  Rep.  520)  as  to  when  payments  are  voluntary. 

3  L.  R.  A.  308,  DIVEN  v.  JOHNSON,  117  Ind.  512,  20  N.  E.  428. 
Parol   evidence   rnle. 

Cited  in  Conant  v.  National  State  Bank,  121  Ind.  324,  22  N.  E.  250,  holding 
specific  provisions  of  written  contract  as  to  acts  to  be  performed  cannot  be  sup- 
planted by  oral  statements;  Pickett  v.  Green,  120  Ind.  588,  22  N.  E.  737,  hold- 
ing written  contract  containing  stipulation  as  to  consideration  precludes  parol 
evidence  of  additional  or  "real"  consideration;  Singer  Mfg.  Co.  v.  Suits,  17  Ind. 
App.  641,  47  N.  E.  341,  holding  oral  proof  of  agreement  to  rescind  in  event  of 
another's  disapproval  inadmissible  to  vary  written  contract  of  purchase;  Rey- 
nolds v.  Louisville,  N.  A.  &  C.  R.  Co.  143  Ind.  616,  40  N.  E.  410,  holding  written 
agreement  to  pay  rent  cannot  be  added  to  by  oral  proof  that  rentals  to  be  applied 
upon  construction  contract;  Brunson  v.  Henry,  140  Ind.  462,  39  N.  E.  256,  hold- 
ing mortgage  recital  of  execution  for  unpaid  pur.ln.se  money  cannot  be  con- 
tradicted by  parol;  Western  Paving  &  Supply  Co.  v.  Citizens'  Street  R.  R.  Co. 


3  L.R.A.  308]  L.  R.  A.  CASES  AS  AUTHORITIES.  476- 

128  Ind.  537,  10  L.  R.  A.  777,  25  Am.  St.  Rep.  462,  26  X.  E.  188,  holding  inad- 
missible, parol  evidence  of  agreement  to  be  bound  by  certain  ordinance  in  con- 
sideration of  ordinance  enabling  purchase  of  franchise  of  company  not  so  boundr 
where  enabling  ordinance  was  granted  in  consideration  of  assumption  of  former 
company's  obligations;  Tracy  v.  Union  Iron  Works  Co.  104  Mo.  201,  16  S.  W.  203, 
holding  evidence  of  preliminary  parol  agreement  for  substantial  addition  to  de- 
mised premises  inadmissible  under  lease  of  premises  "in  present  condition;" 
Providence  Washington  Ins.  Co.  v.  Board  of  Education,  49  W.  Va.  377,  38  S.  E. 
679,  holding  that  provision  in  fire  policy  that  insurer's  right  to  repair,  rebuild, 
or  replace  not  waived  by  submission  of  damage  to  arbitration  precludes  oral 
proof  of  verbal  waiver;  Louisville,  X.  A.  &  C.  R.  Co.  v.  Reynolds.  118  Ind.  172r 
20  N.  E.  711,  holding  parol  evidence  admissible  as  to  extent  of  services,  and  com- 
pensation due,  under  contract  to  allow  "reasonable  attorney's  fees"  in  cases  "other 
than  stock  cases;"  Thompson  Foundry  &  Mach.  Co.  v.  Glass.  136  Ala.  654,  33 
So.  811,  denying  admissibility  of  parol  evidence  as  to  collateral  agreement  to 
make  repairs;  Gemmer  v.  Hunter,  35  Ind.  App.  503,  74  X.  E.  586,  holding  that 
parol  evidence  is  admissible  to  show  the  real  consideration  of  a  deed;  Fierse  v. 
Bronnenberg,  40  Ind.  App.  668,  81  N.  E.  739,  rejecting  parol  proof  to  add  to  sale 
and  conveyance  of  land  an  agreement  to  assume  payment  of  a  certain  ditch 
tax;  Wysong  v.  Sells,  44  Ind.  App.  241,  88  X.  E.  954,  holding  inadmissible  prior 
oral  agreement  to  pay  commission,  where  title  bond  makes  no  provision  therefor; 
McCaskey  Register  Co.  v.  Curfman,  45  Ind.  App.  304,  90  X.  E.  323.  holding  inad- 
missible evidence  that  cash  register  for  which  purchaser  signed  order  was  taken 
on  trial;  Stickney  v.  Hughes,  12  Wyo.  411,  75  Pac.  945,  on  the  admissibility  of 
parol  evidence  to  show  consideration  of  a  written  contract. 

Cited  in  notes  (3  L.  R.  A.  863)  on  admissibility  of  parol  evidence  of  condition 
varying  or  contradicting  commercial  paper;  (6  L.  R.  A.  34)  on  merging  of  prior 
negotiations  in  written  contract;  (13  L.  R.  A.  54)  on  parol  evidence  as  affecting 
indorsement;  (13  L.  R.  A.  622)  on  parol  evidence  inadmissible  to  vary  terms  of 
written  instrument;  (17  L.  R.  A.  271)  on  parol  evidence  not  admissible  to  vary, 
add  to,  or  alter  a  written  instrument;  (15  Am.  St.  Rep.  715)  on  parol  evidence  as 
to  writings. 

Limited  in  Matchett  v.  Knisely,  27  Ind.  App.  669,  62  X.  E.  87,  holding  parol 
evidence  admissible  to  show  that  deed  apparently  absolute  was  intended  as  mort- 
gage; Miller  v.  Barler,  89  Tex.  272,  34  S.  W.  601,  raising,  without  deciding,  ques- 
tion of  admissibility  of  parol  evidence  to  vary  contract  of  assumption  recited  in 
deed. 

3  L.  R.  A.  311,  CHAPMAX  v.  CHARLESTOX,  30  S.  C.  549,  9  S.  E.  591. 
Transfer  of  stoclc  l>y  or  to  executor. 

Cited  in  State  ex  rel.  Swinton  v.  Bates,  38  S.  C.  329,  17  S.  E.  28.  holding  state 
treasurer  not  required  to  transfer  on  his  books  to  an  executor  stock  bequeathed 
to  him  by  deceased  owner,  before  expiration  of  time  for  presenting  claims  against 
estate. 

Cited  in  footnote  to  Wooten  v.  Wilmington  &  W.  R.  Co.  56  L.  R.  A.  615.  which 
holds  corporation  permitting  transfer  of  stock  on  books  by  executor  bound  to  see 
that  provisions  of  will  carried  out. 
Authority  of  one  of  several  executor*. 

Cited  in  note  (127  Am.  St.  Rep.  381,  387)  on  authority  of  one  of  several  exec- 
utors or  administrators. 
Povrer  to  permit   execntor  to   resign. 

Cited  in  note  (13  L.R.A. (X.S.)  439)  on  power  to  permit  executor  to  resign. 


477  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  320 

3  L.  R.  A.  316,  BATES  v.  TAYLOR,  87  Tenn.  319,  11  S.  W.  266. 
Mandamus  or  other  -writ  to  executive  officers. 

Cited  in  Brown  v.  Crystal  Ice  Co.  122  Tenn.  244,  122  S.  W.  84,  19  Ann.  Cas. 
308,  holding  mandamus  proper  remedy  of  stockholder  to  compel  inspection  of 
books. 

Cited  in  footnote  to  Port  Royal  Min.  Co.  v.  Hagood,  3  L.  R,  A.  841,  which  re- 
fuses to  compel  board  of  agriculture  by  mandamus  to  issue  license  to  mine  phos- 
phate rock. 

Cited  in  note   (58  L.  R.  A.  866)   on  independence  of  co-ordinate  departments  of 
government  as  restriction  of  jurisdiction  of  court  of  last  resort  in  mandamus 
cases. 
—  To  governor. 

Cited  in  State  ex  rel.  Robb  v.  Stone,  120  Mo.  434,  23  L.  R.  A.  195,  41  Am.  St. 
Rep.  705,  25  S.  W.  376,  holding  mandamus  not  issuable  to  compel  payment  of 
claim  by  governor;  People  ex  rel.  Broderick  v.  Morton,  156  N.  Y.  141,  41  L.  R. 
A.  233,  66  Am.  St.  Rep.  547,  50  N.  E.  791,  holding  mandamus  not  issuable  to 
compel  reinstatement  of  officer  by  governor;  Hovey  v.  State,  127  Ind.  594,  11 
L.  R.  A.  765,  22  Am.  St.  Rep.  663,  27  N.  E.  175,  holding  governor  cannot  be  com- 
pelled by  mandamus  to  issue  commission  to  one  claiming  election;  State  ex  rel. 
Rawlinson  v.  Ansel.  76  S.  C.  407,  57  S.  E.  185,  11  A.  &  E.  Ann.  Cas.  613,  as  to 
when  certiorari  will  lie  against  the  Governor;  Rice  v.  The  Governor  (Rice  v. 
Draper)  207  Mass.  579,  32  L.RJMX.S.)  358,  93  N.  E.  821;  State  ex  rel.  Latture  v. 
Board  of  Inspectors,  114  Tenn.  519,  86  S.  W.  319, — holding  that  mandamus  will 
not  lie  to  compel  Governor  of  the  State  to  do  any  act  which  devolves  on  him  as 
Governor;  State  ex  rel.  Atty.  Gen.  v,  Huston,  27  Okla.  612,  34  L.R.A.(X.S.)  385, 
113  Pac.  190,  holding  that  district  courts  have  no  jurisdiction  to  control  action 
of  Governor  even  in  ministerial  acts. 

Cited  in  notes  (11  L.R.A.  763)  on  mandamus  not  issuable  to  control  executive 
discretion;   (31  Am.  St.  Rep.  295,  296,  299;  6  L.R. A. ( N.S. )  770)  on  mandamus  to 
Governor. 
Obiter   dictum,    vrluit   Is   not. 

Cited  in  McFarland  v.  Bush,  94  Tenn.  541,  27  L.  R.  A.  663,  45  Am.  St.  Rep.  760, 
29  S.  W.  899,  holding  discussion  of  question  fairly  involved  not  obiter,  though 
decision  rested  on  other  grounds;  Corn  v.  Rosenthal,  3  Misc.  72,  22  N.  Y.  Supp. 
700,  holding  opinion  deciding  case  on  two  sufficient  grounds  not  dictum  on  either. 
Elections. 

Cited  in  notes   f7  L.  R.  A.  99)   on  elections;  right  of  voters  to  be  registered; 
(5  L.  R.  A.  403)  on  contested  election  of  officers. 
1 .11  '.>    of  case  on  second  appeal. 

Cited  in  notes  (11  Am.  St.  Rep.  342;  15  Am.  St.  Rep.  143)  on  law  of  the  case 
on  second  appeal. 

3  L.  R.  A.  320,  McKINNON  v.  NORCROSS,  148  Mass.  533,  20  N.  E.  183. 
Liability    of    master    where    suitable    appliances     fnrnished. 

Cited  in  Miller  v.  New  York,  N.  H.  &  H.  R.  Co.  175  Mass.  365.  56  X.  E.  282, 
holding  railroad  bound  only  to  furnish  to  servants  sufficient  supply  of  suitable 
car  links;  Howard  v.  Hood/155  Mass.  392,  29  N.  E.  630,  holding  master  not  liable 
for  fellow  servant's  negligent  placing  of  proper  runway;  Adasken  v.  Gilbert,  165 
Mass.  445,  43  N.  E.  199,  holding  employer  intrusting  making  of  staging  to  serv- 
ants not  liable  for  defect :  Donnelly  v.  Booth  Bros.  &  H.  I.  Granite  Co.  90  Me. 
116,  37  Atl.  874,  holding  master  liable  for  injuries  received  through  incompe- 
tency  of  fellow  servants;  Standard  Pottery  Co.  v.  Moudy,  35  Ind.  App.  435,  73 


3  L.R.A.  320]  L.  R.  A.  CASES  AS  AUTHORITIES.  478 

N.  E.  188,  holding  master  not  liable  for  improper  use  of  suitable  appliances  by 
servants  resulting  in  injury  to  one;  Conroy  v.  Morrill  &  W.  Constr.  Co.  194  Mass, 
480,  80  N.  E.  489,  holding  that  a  master  is  not  liable  as  for  negligence  in  furnish- 
ing an  improper  appliance,  if  such  appliance  was  suitable  for  the  work  which  it 
was  intended  to  do;  Young  v.  Federal  Match  Co.  76  N.  J.  L.  118.  69  Atl.  500T 
holding  that  a  duty  of  operation  or  incidental  thereto  was  the  duty  of  the  serv- 
ant for  which  master  was  not  liable;  Haskell  &  B.  Car  Co.  v.  PrzezdziankowskL 
170  Ind.  10,  14  L.R.A.  (N.S.)  977,  127  Am.  St.  Rep.  352,  83  N.  E.  626,  on  the  duty 
resting  upon  a  master  to  provide  a  safe  and  suitable  place  for  his  workman; 
Hamlin  v.  Lanquist  &  I.  Co.  Ill  Minn.  497,  127  N.  W.  490,  20  Ann.  Cas.  893  (dis- 
senting opinion),  on  liability  of  master  for  injury  to  servant  from  failure  to  use 
derrick  clamps  furnished. 

Cited  in  footnote  to  Towne  v.  United  Electric  G.  &  P.  Co.  70  L.R.A.  214,  which 
holds  corporation  maintaining  poles  to  support  electric  wires  which  furnishes 
ordinary  pike  poles  in  good  condition  for  handling  such  poles  not  liable  for  injury 
to  employee  caused  by  fellow  servant's  use  of  dull  pike  pole  in  taking  down  pole. 
.  Cited  in  notes  (54  L.  R.  A.  Ill,  112)  on  nonliability  of  master  for  negligent- 
use  of  safe  appliances  by  fellow  servant;  (54  L.  R.  A.  141)  on  coservant's  negli- 
gence in  failing  to  adjust  or  secure  instrumentalities  or  their  parts  while  in  use; 
when  not  imputed  to  master;  (54  L.  R.  A.  163)  on  when  master  not  liable  for  Co- 
servant's  negligence  in  failing  to  replace  an  unsound  by  a  sound  appliance. 
Foreman  as  fellow  servant. 

Cited  in  McGinty  v.  Athol  Reservoir  Co.  155  Mass.  188,  29  N.  E.  510,  holding 
employer  not  liable  for  negligence  of  foreman  assisting  to  secure  movable  der- 
rick; Moody  v.  Hamilton  Mfg.  Co.  159  Mass.  72,  38  Am.  St.  Rep.  396,  34  N.  E. 
185,  holding  master  not  liable  for  negligence  of  superior  giving  orders  to  inferior 
servant;  Galvin  v.  Pierce,  72  N.  H.  82,  54  Atl.  1014,  holding  laborer  excavating 
rocks  and  attaching  chains,  and  foreman  directing  operation  of  derrick,  fellow 
servants. 

Cited  in  footnote  to  Vogel  v.  American  Bridge  Co.  70  L.R.A.  725,  which  holds, 
master  not  liable  for  injury  to  workman  through  competent  foreman's  negligence 
or  error  of  judgment  in  requiring  use   of   piece   of  rope   improper   for   purpose 
intended. 
Declarations    of    servant    after    occurrence    inadmissible. 

Cited  in  Tyler  v.  Old  Colony  R.  Co.  157  Mass.  339,  32  N.  E.  227,  holding  dec- 
laration of  defendant's  servant  as  to  why  he  did  not  flag  train  inadmissible; 
Cole  v.  New  York,  N.  H.  &  H.  R.  Co.  174  Mass.  539,  55  N.  E.  ,1044,  holding  dec- 
larations of  engineer  after  accident  inadmissible  against  railroad  company ;  Geary 
v.  Stevenson,  169  Mass.  31,  47  N.  E.  508,  holding  in  action  for  false  imprison- 
ment, declarations  of  defendant's  servant,  after  making  arrest,  inadmissible. 
Xegligrenee  of  master  ninst  be  shown. 

Cited  in  Peirce  v.  Kile,  26  C.  C.  A.  203,  53  U.  S.  App.  291,  80  Fed.  867,  holding 
proof  of  accident  to  servant  by  breaking  of  rope  raises  no  presumption  of  mas- 
ter's negligence;  Doherty  v.  Booth,  200  Mass.  525,  86  N.  E.  945,  holding  that  a 
stevedore  was  liable  for  personal  injuries  sustained  by  a  longshoreman  in  his 
employ  by  the  falling  of  a  staging,  caused  by  breaking  of  rope  which  employer 
knew  or  ought  to  have  known  had  become  defective  by  age. 

3  L.  R.  A.  322,  FERGUSON  v.  ROSS,  38  Fed.  161. 
Jurisdiction    of    Federal    conrts. 

Cited  in  United  States  v.  Mexican  Nat.  R.  Co.  40  Fed.  771,  holding  circuit  court 
has  no  jurisdiction  of  suit,  civil  in  form,  to  recover  penalty  less  than  $2,000; 


479  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  325 

Huntington  v.  Attrill,  146  U.  S.  673,  36  L.  ed.  1130,  13  Sup.  Ct.  Rep.  224,  hold- 
ing action  to  enforce  director's  liability  for  corporation's  debts,  not  penal  in 
nature,  maintainable  in  Federal  court;  Indiana  use  of  Delaware  County  v. 
Alleghany  Oil  Co.  85  Fed.  873,  holding  Federal  courts  without  jurisdiction  over 
suit,  civil  in  form,  to  recover  penalty  under  state  law. 
Removal  of  cause  from  state  to  Federal  court. 

Cited  in  Indiana  v.  Tolleston  Club,  53  Fed.  19,  holding  suit  between  one  state 
and  citizens  of  another  not  removable  to  Federal  court  on  ground  of  diverse 
citizenship;  Arkansas  v.  St.  Louis  &  S.  F.  R.  Co.  173  Fed.  574,  holding  that  an 
action  to  recover  penalty  for  violation  of  a  statute  was  not  removable;  Chicago, 
St.  L.  &  N.  0.  R.  Co.  v.  Com.  115  Ky.  285,  72  S.  W.  1119,  holding  that  a  state  is 
not  a  citizen  within  the  act  providing  for  removal  of  suit  between  citizens  of 
different  states. 

Cited  in  footnote  to  Herndon  v.  J&tna.  F.  Ins.  Co.  10  L.  R.  A.  54,  which  holds 
petition  for  removal  of  cause  not  aided  by  allegations  as  to  residence  in  com- 
plaint. 

Cited  in  note  (5  L.  R.  A.  476)  on  removal  of  cause. 

Distinguished  in  Missouri,  K.  &  T.  R.  Co.  v.  Missouri  R.  &  Warehouse  Comrs. 
183  U.  S.  59,  46  L.  ed.  84,  22  Sup.  Ct.  Rep.  18,  Reversing  151  Mo.  659,  52  S.  W. 
351,  holding  state  not  real  party  in  action  by  railroa.d  commissioners  to  compel 
compliance  with  order  respecting  rates  for  use  of  bridge. 

3  L.  R.  A.  324,  LEATHERMAN  v.  TIMES  CO.  88  Ky.  291,  21  Am.  St.  Rep.  342, 

11  S.  W.  12. 
Statute  of  limitations  as  affecting  amendments  to  pleading?. 

Cited  in  Anderson  v.  Atchison,.  T.  &  S.  F.  R.  Co.  71  Kan.  455,  80  Pac.  946, 
holding  that  a  party  against  whom  the  cause  of  action  had  been  barred  by  the 
statute,  could  not  be  made  a  party  to  the  suit  by  amendment. 

Cited  in  note  (39  L.  ed.  U.  S.  986)  on  amendment  of  pleading  as  affecting  stat- 
ute of  limitations. 

Distinguished  in  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Gray,  50  L.  R.  A.  50,  41 
C.  C.  A.  537,  101  Fed.  625,  holding  amendment  to  petition,  substantive  cause  of 
action  remaining  unchanged,  not  new  suit  for  purpose  of  limitations;  Teets  v. 
Snider  Heading  Mfg.  Co.  120  Ky.  657,  87  S.  W.  803,  holding  where  defendant  was 
sued  as  a  corporation  and  plea  set  up  that  it  was  a  partnership  it  was  error  not 
to  permit  amendment  of  pleading  to  show  this. 
Commencement  of  an  action  sufficient  to  suspend  statute  of  limitations. 

Cited  in  Geneva  Cooperage* Co.  v.  Brown,  124  Ky.  25,  124  Am.  St.  Rep.  388, 
98  S.  W.  279,  holding  an  institution  of  an  action  against  a  concern  supposed  to 
be  a  corporation  but  which  was  a  partnership  was  not  a  commencement  of  an 
action  against  the  individual  members. 

Cited  in  note    (40  L.R.A.  (N.S.)    568)    on  effect  of  erroneously  describing  de- 
fendant in  process  as  corporation  instead  of  individual  or  partnership,  or  vice 
versa. 
Acquisition  of  jurisdiction  over  new  parties. 

Cited  in  note  (50  Am.  St.  Rep.  741)  on  acquiring  jurisdiction  over  new  parties. 

3  L.  R.  A.  325,  BLOCK  v.  HENDERSON,  82  Ga.  23,   14  Am.  St.  Rep.   138,  8 

S.  E.  877. 


3  L.R.A.  327]  L.  R.  A.  CASES  AS  AUTHORITIES.  480 

3  L.  R.  A.  327,  CRUSE  v.  ADEX,  127  111.  231,  20  N.  E.  73. 
Statutory    construction. 

Cited  in  Harrison  v.  People,  92  111.  App.  651,  Affirmed  on  opinion  of  court  be- 
low in  191  111.  267,  61  X.  E.  99;  People  ex  rel.  Columbia  Constr.  Co.  v.  Hinrich- 
sen,  161  111.  226,  43  N.  E.  973;  Tudor  v.  Chicago  &  South  Side  Rapid  Transit 
R.  Co.  154  111.  138,  39  X.  E.  136;  People  ex  rel.  Keeney  v.  Chicago,  152  111.  552, 
38  X.  E.  744,  —  holding  language  of  statute  to  be  interpreted  according  to  intent 
gathered  from  necessity  or  reason  for  enactment;  People  ex  rel.  Stevens  v.  Fidel- 
ity &  C.  Co.  153  111.  36,  26  L.  R.  A.  299,  38  N.  E.  752,  holding  title  of  act  may 
be  regarded  in  ascertaining  legislative  intention;  Indiana,  I.  &  I.  R.  Co.  v.  Peo- 
ple, 154  111.  568,  39  X.  E.  133,  construing  according  to  intent  statute  purport- 
ing to  extend  town's  corporate  powers,  manifestly  misdescribiug  boundaries; 
Schmaedeke  v.  People,  63  111.  App.  664,  holding  restriction  of  sales  to  habitual 
drunkards  applies  to  original-package  dealers;  Chicago  v.  Wilshire,  243  111.  126,  90 
X.  E.  245,  holding  title  of  ordinance  may  be  considered  in  determining  construc- 
tion of  ordinance;  People  v.  RuSsell,  245  111.  283,  91  N.  E.  1075  (dissenting  opin- 
ion), on  the  construction  according  to  intention  gathered  from  reason  and  neces- 
sity for  enactment;  Eufaula  v.  Gibson,  22  Okla.  518,  98  Pac.  565,  on  the  intent 
gathered  from  the  necessity  or  reason  for  enactment  as  affecting  construction. 
Against  liquor  traffic. 

Cited  in  Schulte  v.  Menke,  111  111.  App.  215,  holding  dram-shop  act  is  penal  in 
character  and  should  be  carefully  construed. 

Cited  in  note  (21  L.R.A.  (X.S.)  134)  on  social  treating  as  offense  under  liquor 
law. 

Distinguished  in  Litch  v.  People,  19  Colo.  App.  426,  75  Pac.  1079;   People  v. 
Myers,  161  Mich.  43,  125  X.  W.  701, — holding  that  under  a  local  option  law,  the 
giving  of  a  drink  of  intoxicating  liquor  was  a  violation  of  the  statute  though  the 
giver  was  not  engaged  in  the  liquor  trade. 
.Liability    for    injury    to    intoxicated    person. 

Cited  in  Westphal  v.  Austin,  41  111.  App.  654,  holding  dealer  selling  liquor, 
helping  to  form  appetite  leading  to  final  injury,  not  liable  under  dramshop  act: 
Walker  v.  Dailey,  101  111.  App.  578,  holding  merchant  selling  lemon  extract  con 
taining  alcohol,  not  as  device  to  evade  law,  not  liable;  Johnson  v.  Gram,  72  111. 
App.  680,  holding  dealer  liable  for  injury  occasioned  by  drinking  liquor  by  one 
"treated"  in  his  saloon;  Schulte  v.  Menke,  111  111.  App.  215,  denying  saloon  keep- 
er's liability  under  dramshop  act  for  injuries  to  intoxicated  person,  inflicted  by 
third  person;  Peter  Anderson  &  Co.  v.  Diaz,  77  Ark.  608,  4  L.R.A.(X.S.)  650,  113 
Am.  St.  Rep.  180,  92  S.  W.  861,  holding  that  the  saloon  keeper  was  not  so  liable 
under  the  rules  of  common  law. 

Cited  in  notes  (7  L.R.A.  301)  on  action  by  wife  for  damages  for  injury  to 
means  of  support  by  sale  of  liquor;  (40  L.R.A.  (X.S.)  360)  on  wife's  right  of  ac- 
tion at  common  law  against  one  selling  drugs  or  liquor  to  husband. 

Distinguished  in  Clears  v.  Stanley.  34  111.  App.  340,  holding  dramshop  act  ap- 
plies to  brewer  selling  liquor  in  cask  from  brewery;  Layton  v.  Deck,  63  111.  App. 
556,  holding  druggist  selling  alcohol  liable  for  damages  occasioned  thereby. 
Penal  nature  of  Dram   Shop  Acts. 

Cited  in  Schulte  v.  Schleeper,  210  111.  360,  71  X.  E.  325,  holding  "Dramshop 
Act,"  was  penal  in  its  nature. 

3  L.  R.  A.  330,  BULKLEY  v.  DEVIXE,  127  111.  406,  20  X.  E.  16. 
Parol    evidence   varying    written    instrument. 

Cited  in  Henry  v.  Herschey,  9  Idaho,  554,  75  Pac.  266,  holding  parol  evidence 
admissible  to  show  that  condition  in  written  contract  had  been  complied  with. 


481  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  332 

Cited  in  notes  (17  L.R.A.  271)  on  parol  evidence  admissible  to  vary,  add 
to,  or  alter  written  contract;  (13  L.  R.  A.  54)  on  parol  evidence  as  affecting  in- 
dorsement; (6  L.  R.  A.  45;  13  L.  R.  A.  622;  17  L.  R.  A.  272)  on  limit  and  ex- 
ceptions to  rule  excluding  parol  evidence  varying  written  instrument;  (11  Am. 
St.  Rep.  395)  on  parol  evidence  as  to  writing. 
Parol  evidence  to  Identify  subject-matter  of  contract. 

Cited  in  Marske  v.  Willard,  169  111.  282,  48  X.  E.  290,  and  Paugh  v.  Paugh, 
40  111.  App.  144,  holding  parol  evidence  admissible  to  identify  leased  premises; 
Chicago  Pressed  Steel  Co.  v.  Clark.  87  111.  App.  664,  holding  parol  evidence  ad- 
missible to  identify  lease  referred  to  in  another  instrument;  Cumberled^e  v. 
Brooks,  235  111.  257,  85  X.  E.  197,  holding  parol  evidence  admissible  to  identify 
subject  matter  of  contract;  Clayton  v.  Lemen,  233  111.  437,  84  X.  E.  691;  Staub 
v.  Hampton,  117  Tenn.  726,  101  S.  W.  776, — holding  parol  evidence  admissible  to 
identify  land  described  in  a  conveyance. 

Cited  in  note    (6  L.  R.  A.  44)    on  admissibility  of  parol  evidence  to  identify 
property  referred  to  in  written  instrument. 
"When   tenant  cannot   repudiate  lease. 

Cited  in  McLennan  v.  Grant,  8  Wash.  605,  36  Pac.  682,  holding  one  in  posses- 
sion under  lease  cannot  repudiate  it  for  uncertainty  in  description. 
Action    for    rent. 

Cited  in  Kelly  v.  Galbraith,  87  111.  App.  69,  holding  action  for  rent  of  prem- 
ises erroneously  described  in  lease  properly  brought  in  law. 
Harmless   error. 

Cited  in  note  (11  Am.  St.  Rep.  287)  on  harmless  error. 

3  L.  R.  A.  332,  HEXRY  &  C.  CO.  v.  EVAXS,  97  Mo.  47,  10  S.  W.  868. 

Followed  without  special  discussion  in  Chilton  v.  Lindsay,  38  Mo.  App.  62. 
Liens    of    subcontractors. 

Cited  in  Ittner  v.  Hughes,  133  Mo.  691,  34  S.  W.  1110,  and  The  Victorian,  24 
Or.  139,  41  Am.  St.  Rep.  838,  32  Pac.  1040,  holding  materialman's  lien  not  af- 
fected by  full  payment  to  principal  contractor;  Bruce  Lumber  Co.  v.  Hoos,  67 
Mo.  App.  277,  holding  materialman  can  enforce  lien  only  for  reasonable  value 
of  materials  furnished;  Williams  v.  Dittenhoefer,  188  Mo.  143,  86  S.  W.  242, 
on  the  subcontractor's  right  of  lien;  Meyer  v.  Schmidt,  130  Mo.  App.  3.38.  109 
S.  W.  832,  holding  that  it  is  no  defense  to  an  action  by  materialman  to  enforce 
lien  that  the  owner  had  paid  the  contractor  the  full  price  before  notice  of  the 
claim,  and  the  contractor  had  abandoned  the  contract. 

Distinguished  in  Badger  Lumber  Co.  v.  Stepp,   157  Mo.  383,  57* S.  W.   1059, 
holding  contract  between  lot  owner  and  contractor  prerequisite  to  materialman's 
lien. 
Validity  of  statutes  regulating  Hens  and  compensation   for  services. 

Cited  in  Jones  v.  Great  Southern  Fireproof  Hotel  Co.  30  C.  C.  A.  119,  58  U.  S. 
App.  397,  86  Fed.  381,  Affirmed  in  93  U.  S.  550,  48  L.  ed.  788,  24  Sup.  Ct.  Rep. 
576;  Barrett  v.  Millikan,  156  Ind.  514,  83  Am.  St.  Rep.  220,  60  X.  E.  310;  High- 
tower  v.  Bailey,  108  Ky.  206,  49  L.  R.  A.  257,  94  Am.  St.  Rep.  350,  56  S.  W.  147, 
—  holding  statute  giving  lien  to  subcontractors,  irrespective  of  indebtedness  of 
owner  to  contractor,  constitutional;  Karnes  v.  American  F.  Ins.  Co.  144  Mo.  417, 
46  S.  W.  166,  holding  statute  declaring  void  part  of  contract  limiting  time  in 
which  suit  may  be  brought  constitutional;  State  v.  Loonris.  115  Mo.  329,  21  L.  R. 
A.  808.  22  S.  W.  350  (dissenting  opinion),  majority  holding  statute  prohibiting 
payment  of  wages  by  mining  or  manufacturing  concern  by  store  order  not  re- 
deemable in  cash  at  holder's  option  unconstitutional;  State  v.  Gregory,  170  Mo. 
L.R.A.  Au.  Vol.  L— 31. 


3  L.R.A.  332]  L.  R.  A.  CASES  AS  AUTHORITIES.  482 

604,  71  S.  W.  170,  sustaining  statute  making  it  misdemeanor  for  contractor  to 
obtain  lumber  by  false  promises;  Chicago  Lumber  Co.  v.  Newcomb.  10  Colo.  App. 
273.  74  Pac.  786,  holding  a  law  giving  subcontractor  a  lien  was  constitutional; 
Stimson  Mill  Co.  v.  Nolan,  5  Cal.  App.  761,  91  Pac.  262;  Gardner  &  M.  Co.  v.  Xew 
York  C.  &  H.  R.  R.  Co.  72  X.  J.  L.  261,  62  Atl.  416,— holding  a  statute  giving  a 
mechanics'  lien  is  not  unconstitutional  because  it  deprives  the  owner  of  property 
without  due  process  of  law;  O'Connor  v.  St.  Louis  Transit  Co.  198  Mo.  640,  115 
Am.  St.  Rep.  495.  97  S.  W.  150,  8  A.  &  E.  Ann.  Gas.  703,  holding  statute  giving 
attorneys  a  lien  is  constitutional. 
Power  of  appellate  court  to  direct  judgment. 

Cited  in  Ozark  Plateau  Land  Co.  v.  Hays,  105  Mo.  153,  16  S.  W.  957,  holding 
appellate   court    may    direct   different    judgment   on   agreed    statement,    without 
ordering  new  trial. 
Review  of  legislation  by  courts. 

Cited  in  State  ex  rel.  Scotland  County  v.  Bacon,  107  Mo.  633,  18  S.  W.  19, 
holding  courts  may  not  question  wisdom  or  expediency  of  constitutional   legis- 
lation. 
3Ieaiiing-    of    words. 

Cited  in  Henry  v.  Grand  Ave.  R.  Co.  113  Mo.  537,  21  S.  W.  214,  holding  words 
in  instruction  to  be  taken  in  usual,  ordinary  meaning;  State  ex  rel.  Kochtitzky  v. 
Riley,  203  Mo.  187,  12  L.R.A.(N.S.)  903,  101  S.  W.  567,  holding  that  a  constitu- 
tional amendment  is  to  be  read  and  the  words  used  in  their  ordinary,  usual  and 
natural  meaning. 

Cited  in  note  (12  Am.  St.  Rep.  827)  on  construction  of  statutes. 

3  L.  R.  A.  337,  SEDDON  v.  ROSENBAUM,  85  Va.  928,  9  S.  E.  326. 

Second  appeal  in  94  Va.  575,  27  S.  E.  425. 
Statute  of  frauds. 

Cited  in  Wynn  v.  Followill,  98  Mo.  App.  465,  72  S.  W.  140,  holding  agreement 
to  furnish  servant  to  care  for  infant  not  within  statute. 

Cited  in  notes   (5  L.  R.  A.  324)   on  enforcement  of  verbal  contracts  relating  to 
land,  fully  performed  by  one  party;    (10  L.  R.  A.  727)  on  lease  within  statute  of 
frauds. 
- —  Contracts    not   to   be    performed    within    year. 

Cited  in  Lee  v.  Hill,  87  Va.  505,  24  Am.  St.  Rep.  666,  12  S.  E.  1052,  holding 
verbal  contract  for  one  year's  service,  to  commence  thereafter,  void;  Richmond 
Union  Pass.  R.  Co.  v.  Richmond,  F.  &  P.  R.  Co.  96  Va.  675,  32  S.  E.  787,  holding 
contract  to  erect  gate  and  provide  keeper  at  crossing,  not  fixing  time  for  per- 
formance, not  within  statute;  Thomas  v.  Armstrong,  86  Va.  326,  5  L.  R.  A.  531, 
footnote,  p.  529,  10  S.  E.  6,  holding  verbal  agreement  for  legacy,  in  considera- 
tion of  services,  not  within  statute;  Kendall  v.  Garneau,  55  Neb.  407.  75  X.  W. 
852,  holding  covenant  in  deed  not  subscribed  by  grantee,  to  pay  mortgage  not 
due  within  year,  not  within  statute;  Reed  v.  Gold,  102  Va.  50,  45  S.  E.  868,  hold- 
ing an  oral  subscription  for  stock  is  not  within  the  statute,  where  the  title  passes 
at  once  but  the  purchase  price  is  not  paid  within  the  year;  Tyler  v.  St.  Louis 
Southwestern  R.  Co.  99  Tex.  497,  91  S.  W.  1,  13  A.  &  E.  Ann.  Cas.  911,  holding 
contract  which  by  its  terms  may  be  fully  performed  by  one  party  within  one 
year  and  which  is  so  performed  is  not  within  the  statute. 

Cited  in  footnotes  to  Lewis  v.  Tapman,  47  L.  R.  A.  385.  which  holds  contract 
to  marry  "within  three  years"  not  within  statute  of  frauds;  Weatherford,  M.  W. 
&  X.  W.  R.  Co.  v.  Wood,  28  L.  R.  A.  526,  which  holds  not  within  statute  of 
frauds  contract  to  give  pass  to  man  and  his  family  annually  for  ten  years; 


483  L.  R.   A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  342 

Wahl  v.  Barnum,  5  L.  R.  A.  623,  which  holds  void  oral  contract  for  partnership 
for  more  than  one  year;  Hand  v.  Osgood,  30  L.  R.  A.  379,  which  holds  oral  lease 
for  year,  with  privilege  of  three  at  annual  rent,  void;  Brown  v.  Throop,  13  L.  R. 
A.  646,  which  holds  parol  agreement  in  March  for  lease  of  icehouse  for  one  year 
from  April,  to  be  left  full  on  surrendering  possession,  valid. 

Cited  in  notes  (7  L.  R.  A.  785;  9  L.  R.  A.  129;  11  L.  R.  A.  621)  on  statute 
of  frauds;  contracts  not  to  be  performed  within  one  year;  (138  Am.  St.  Rep.  6061 
on  agreements  not  to  be  performed  within  a  year. 

3  L.  R.  A.  341,  MOE  v.  SMILEY,  125  Pa.  136,  17  Atl.  228. 
Survivnbilitv   of  actions. 

Cited  in  Haggerty  v.  Pittston,  9  Kulp,  576,  holding  father's  action  for  negli- 
gent death  of  minor  will  not  abate  at  former's  death;  Weiss  v.  Hunsicker,  14  Pa. 
Co.  Ct.  399,  3  Pa.  Dist.  R.  446,  holding  action  in  trespass  for  death  by  vio- 
lence will  not  survive  death  of  defendant,  though  action  begun  before. 

Cited  in  footnote  to  Aylsworth  v.  Curtis,  33  L.  R.  A.   110,  which  holds  sur- 
vivable,  action  for  value  of  property  stolen. 
For  injuries  through  ivr«,'iin  I  ul  act. 

Cited  in  Letson  v.  Brown,  11  Colo.  App.  13,  52  Pac.  287,  holding  one  negli- 
gently injured  cannot  maintain  action  against  deceased  wrongdoer's  estate;  Ham- 
ilton v.  Jones,  125  Ind.  178,  25  N.  E.  192,  and  Davis  v.  Nichols,  54  Ark.  360,  la 
S.  W.  880,  upholding  action  for  benefit  of  widow  upon  wrongdoer's  death;  John- 
son v.  Farmer,  89  Tex.  611,  35  S.  W.  1062,  holding  statutory  liability  for  in- 
juries causing  death  does  not  survive  death  of  wrongdoer  before  suit;  Maher  v. 
•  Philadelphia  Traction  Co.  181  Pa.  398,  40  W.  N.  C.  480,  37  Atl.  571,  holding  re- 
covery by  administrator  in  negligence  action  includes  injury  to  decedent's  person- 
as  well  as  value  of  life;  Will  v.  Edison  Electric  Light  Co.  19  Lane.  L.  Rev.  340r 
holding  damages  to  children  for  negligent  death  of  father  recoverable  in  action; 
by  mother's  administrator;  Smith  v.  Lehigh  Valley  R.  Co.  232  Pa.  461,  81  Atl. 
554.  Affirming  15  Luzerne  Leg.  Reg.  315,  holding  that  husband's  right  of  action 
for  injury  to  wife  survives  his  death;  McHugh  v.  Grand  Trunk  R.  Co.  2  Ont.  L. 
Rep.  608,  on  the  survivability  of  action  for  death  by  wrongful  act;  Bates  v.  Syl- 
ester,  205  Mo.  506,  11  L.R.A.(N.S.)  1162,  120  Am.  St.  Rep.  761,  104  S.  W.  73,  12 
A.  &  E.  Ann.  Cas.  457,  holding  that  a  cause  of  action  does  not  survive  after  death 
of  wrongdoer. 

Cited  in  footnote  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  survivable, 
action  for  negligently  driving  over  person. 

Cited  in  notes  (4  L.R.A.  261)  on  liability  for  death  caused  by  negligence;  (11 
L.R.A. (X.S.)  1157)  on  cause  of  action  for  wrongful  death  as  surviving  wrongdoer; 
(2  Eng.  Rul.  Cas.  17)  on  abatement  of  action  for  tort  by  death  of  wrongdoer. 

Distinguished  in  Devine  v.  Healy,  241   111.  38,  89  N.  E.  251,  holding  adminis- 
trator of  deceased  may  maintain   suit   for  death  by  wrongful  act,  against  the 
executor  of  the  wrongdoer. 
Ripht  of  action  for  death  by  wrongful  act. 

Cited  in  Fulco  v.  Schuylkill  Stone  Co.  163  Fed.  126,  holding  that  an  alien  who 
has  never  been  in  this  country  and  who  owns  no  property  here,  has  no  right  of 
action  for  death  by  wrongful  act,  in  the  courts. 

Cited  in  note  (70  Am.  St.  Rep.  686)   on  action  for  death  of  human  being. 

3  L.  R.  A.  342,  HARTWELL  v.  NORTHERN  PACIFIC  EXP.  CO.  5  Dak.  463, 

41  N.  W.  732. 
Carrier's   liability    for    loss    of   goods. 

Cited  in  footnotes  to  Oakes  v.  Northern  P.  R.  Co.  12  L.R.A.  318,  which  holds 


i 


3  L.R.A.  342]  L.  R.  A.  CASES  AS  AUTHORITIES.  484 

carriers  insurers  of  baggage;  Yazoo  &  M.  V.  R.  Co.  v.  Blackmar,  67  L.R.A.  640, 
which  holds  papers  of  employer  pertaining  to  business  of  an  insurance  agent  not 
baggage  of  the  latter. 

Cited  in  notes    (6  L.  R.  A.  849)    on  liability  of  carrier  of  freight  as  insurer; 
(7  L.  R.  A.  216)   on  limit  to  liability  of  common  carriers  for  loss  of  goods;    (11 
L.  R.  A.  616)  on  act  of  God  as  defense  in  action  for  loss  by  carrier. 
Restriction    of    liability    by    common    carrier. 

Cited  in  Meuer  v.  Chicago,  M.  &  St.  P.  R.  Co.  5  S.  D.  575,  25  L.  R.  A.  84,  49 
Am.  St.  Rep.  878,  59  N.  W.  945,  holding  that  under  Dakota  laws  common  car- 
riers may  limit  liability,  by  contract,  except  as  to  gross  negligence,  fraud,  or 
wilful  wrong;  Kirby  v.  Western  U.  Teleg.  Co.  4  S.  D.  116,  30  L.  R.  A.  619,  46 
Am.  St.  Rep.  765,  55  N.  W.  759,  holding  carrier  cannot  exact  agreement  limiting 
liability  as  condition  precedent  to  performance  of  duty;  Kirby  v.  Western  U. 
Teleg.  Co.  7  S.  D.  627,  30  L.  R.  A.  622,  65  S.  W.  37,  holding  regulation  of  com- 
mon carrier  limiting  time  for  presenting  damage  claim  does  not  affect  liability 
nor  shorten  time  for  commencing  action;  Hanson  v.  Great  Northern  R.  Co.  18  X. 
D.  329,  138  Am.  St.  Rep.  768,  121  X.  W.  78,  holding  void,  contract  fixing  value 
of  household  goods  at  $5  per  hundred  weight;  Lothian  v.  Western  U.  Teleg.  Co. 
25  S.  D.  322,  126  X.  W.  621,  holding  that  telegraph  company  cannot  exempt  itself 
from  liability  from  gross  negligence,  fraud,  or  willful  wrong. 

Annotation  cited  in  Ingram  v.  Weir,  166  Fed.  331,  holding  that  a  limitation 
in  a  bill  of  lading  requiring  actions  for  loss  of  goods  to  be  brought  within  one 
year,  was  valid. 

Cited  in  footnote  to  Chicago  &  N.  W.  R.  Co.  v.  Chapman,  8  L.  R.  A.  508,  which 
holds  carrier  cannot  limit  liability  for  gross  negligence  or  wilful  misconduct. 

Cited  in  notes  (12  L.  R.  A.  800)  on  limitation  of  carrier's  liability  by  con- 
tract; (10  L.  R.  A.  420)  on  restriction  on  power  of  common  carrier  to  limit  lia- 
bility by  contract;  (17  L.R.A. (X.S.)  634)  on  validity  of  stipulation  requiring 
notice  within  specified  time,  as  applied  to  loss  due  to  carrier's  negligence;  (88 
Am.  St.  Rep.  132)  on  limitation  of  carrier's  liability  in  bills  of  lading. 

Distinguished  in  Hazel  v.  Chicago,  M.  &  St.  P.  R.  Co.  82  Iowa,  482,  48  X.  W. 
926,  holding  special  contract  limiting  liability  of  common  carrier,  signed  by 
shipper,  binding. 

3  L.  R.  A.  349,  SAMPSOX  v.  SAMPSOX,  16  R.  I.  456,  16  Atl.  711. 
Decree   for   alimony. 

Cited  in  Cariens  v.  Cariens,  50  W.  Va.  116,  55  L.  R,  A.  932,  40  S.  E.  335, 
holding  decree  of  divorce  res  judicata  as  to  alimony;  Mayer  v.  Mayer,  154 
Mich.  390,  19  L.R.A.(X.S.)  247,  129  Am.  St.  Rep.  477,  117  X.  W.  890,  holding 
a  decree  for  alimony  in  a  divorce  a  vinculo  made  without  reserve,  though 
payable  in  installments,  is  final,  and  cannot  be  modified  after  enrollment  of 
decree  unless  right  is  reserved  or  given  by  statute. 

Cited  in  footnote  to  Livingston  v.  Livingston,  61  L.  R.  A.  800,  which  holds  that 
unchangeable  provision  for  alimony  in  divorce  decree  cannot  be  impaired  by  sub- 
sequent statute  empowering  courts  to  modify  same. 

Distinguished  in  Alexander  v.  Alexander,  13  App.  D.  C.  354,  45  L.  R.  A.  813, 
holding  that  court  may  subsequently  modify  decree  for  alimony  made  without 
reserve. 
Termination   of   right   to   alimony. 

Cited  in  footnote  to  Wetmore  v.  Wetmore,  48  L.  R.  A.  666.  which  holds  right 
to  alimony  from  income  of  testamentary  trust  for  support  of  former  husband 
terminated  by  remarriage  of  divorced  woman. 


485  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  350 

3  L.  R.  A.  350,  UNION  P.  R.  CO.  v.  DE  BUSK,  12  Colo.  294,  13  Am.  St.  Rep. 
221,  20  Pac.  752. 

Followed  without  special  discussion  in  Union  P.  R.  Co.  v.  Moffatt,  12  Colo. 
310,  20  Pac.  759;  Home  Ins.  Co.  v.  Atchison,  T.  &  S.  F.  R.  Co.  19  Colo.  49,  34 
Pac.  281 ;  Union  P.  R.  Co.  v.  Tracy,  19  Colo.  332,  35  Pac.  537 ;  Union  Paeific,  D. 
&  G.  R.  Co.  v.  Williams,  3  Colo.  App.  527,  34  Pac.  731;  Union  P.  R,  Co.  v. 
Arthur,  2  Colo.  App.  160,  29  Pac.  1031. 
General  appearance  as  waiving  objection  to  MI  m  mo  us  or  jurisdiction. 

Cited  in  Boston  &  C.  Smelting  Co.  v.  Reed,  23  Colo.  529,  48  Pac.  515,  holding 
general  appearance  waives  objection  to  jurisdiction;  Ruby  Chief  Min.  &  Mill. 
Co.  v.  Gurley,  17  Colo.  200,  29  Pac.  668,  and  Lord  v.  Hendrie  &  B.  Mfg.  Co.  13 
Colo.  394,  22  Pac.  782,  holding  error  in  overruling  motion  to  quash  summons  cured 
by  goneral  appearance;  Loveland  v.  Union  Xat.  Bank,  25  Colo.  504,  56  Pac.  61, 
holding  voluntary  appearance  by  administrator  waives  failure  to  enter  order  con- 
tinuing hearing  on  claim;  Speer  v.  Burlingame,  61  Mo.  App.  84,  holding  that 
application  for  change  of  venue  waives  objection  to  jurisdiction;  Corbett  v. 
Physicians'  Casualty  Asso.  135  Wis.  512,  16  L.R.A.(X.S.)  186,  115  N.  W. 
365,  holding  a  trial  of  an  action  upon  the  merits  waives  all  questions  of 
jurisdiction  as  to  defendant  participating  therein. 

Cited  in  notes  (16  L.R.A.(X.S.)  180)  on  contest  on  merits  after  special 
appearance,  as  waiver  of  objections  to  jurisdiction  over  person;  (22  Am.  St.  Rep. 
452)  on  waiver  of  defect  in  summons  by  appearance. 

Criticized  in  Curtis  v.  Howard,  33  Fla.  259,  14  So.  812,  holding  that  general 
appearance  does  not  waive  objection  to  court's  jurisdiction  over  person. 
Railroad's   liability   for  fires  or  injury  to  stock. 

Cited  in  note   (11  L.  R.  A.  508)   on  railroad  company's  liability  for  fire  com- 
municated by  defective  engine  appliances. 
Evidence  as  to  origin  of  fire. 

Cited  in  Abrams  v.  Seattle  &  M.  R.  Co.  27  Wash.  514,  68  Pac.  78,  holding  cir- 
cumstances leading  reasonably  to  inference,  sufficient  to  support  jury's  finding 
that  fire  originated  from  locomotive;  Crissey  &  F.  Lumber  Co.  v.  Denver  &  R. 
G.  R.  Co.  17  Colo.  App.  302,  68  Pac.  670,  and  John  Mouat  Lumber  Co.  v.  Wil- 
more,  15  Colo.  140,  25  Pac.  556,  holding  finding  that  fire  was  started  by  sparks 
from  mill  warranted  by  evidence  that  there  was  no  other  known  source,  and  the 
fires  had  frequently  been  started  before  by  sparks  from  mill;  Louisville  &  N. 
R.  Co.  v.  Marbury' Lumber  Co.  132  Ala.  527,  90  Am.  St.  Rep.  917,  32  So.  745, 
holding  evidence  of  excessive  use  of  steam  competent  on  question  whether  fire 
started  by  engine;  Burlington  &  M.  River  R.  Co.  v.  Burch,  17  Colo.  App.  492,  69 
Pac.  6.  holding  evidence  showing  that  fire  started  immediately  after  train  passed 
sufficient  to  establish  liability;  Continental  Ins.  Co.  v.  Chicago  &  N.  W.  R. 
Co.  97  Minn.  473,  5  L.R.A.(N.S.)  107,  107  N.  W.  548,  on  the  sufficiency  of 
evidence  of  negligence  in  setting  fires:  MacDonald  v.  New  York,  N.  H.  &  H. 
R.  Co.  25  R.  I.  44,  54  Atl.  795,  holding  that  evidence  that  defendant's  en- 
gines had  previously  set  fires  along  track  and  other  similar  evidence,  was 
admissible;  Colorado  Midland  R.  Co.  v.  Snider,  38  Colo.  355,  88  Pac.  453; 
Lemann  Co.  v.  Texas  &  P.  R.  Co.  128  La.  1091,  55  So.  684;  Big  River  Lead 
Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  123  Mo.  App.  405,  101  S.  W.  636;  Gulf, 
C.  &  S.  F.  R.  Co.  v.  Meentzen  Bros.  52  Tex.  Civ.  App.  420,  113  S.  W.  1000: 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Blakeney-Stevens-Jackson  Co.  48  Tex.  Civ.  App.  447, 
106  S.  W.  1140.— holding  that  evidence  that  fire  started  soon  after  train  passed 
and  there  was  none  before  nor  other  apparent  cause,  was  sufficient  to  raise  pre- 
sumption that  fire  was  set  by  engines:  Cyle  v.  Denver  &  R.  G.  R.  Co.  37  Colo. 
301,  86  Pac.  1010,  holding  that  where  the  evidence  showed  that  the  wind  was 


3  L.R.A.  3501  L.  R.  A.  CASES  AS  AUTHORITIES.  486 

blowing  away  from  where  the  fire  began,  and  other  things  tending  to  show  im- 
probability that  it  was  set  by  engine,  it  was  not  sufficient  to  raise  presumption. 

Limited  in  Union  P.  R.  Co.  v.  Arthur,  2  Colo.  App.  162,  29  Pac.  1031,  holding, 
in  action  under  statute  making  railroad  liable  for  fires,  origin  of  fire  not  to  be 
established  by  inference. 
Constitutional    law Denial    of    equal    protection    or    due    process. 

Cited  in  St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  21,  41  L.  ed.  619,  17 
Sup.  Ct.  Rep.  243,  Affirming  121  Mo.  314,  25  L.  R.  A.  168,  24  S.  W.  591,  upholding 
statute  imposing  absolute  liability  on  railroad  for  fires. 

Cited  in  footnote  to  Wadsworth  v.  Union  P.  R.  Co.  23  L.  R.  A.  812,  which  holds 
unconstitutional  act  creating  absolute  liability  for  stock  killed  or  injured  by 
trains. 

Distinguished  in  Denver  &  R.  G.  R.  Co.  v.  Outcalt,  2  Colo.  App.  399,  31  Pac. 
177,  and  Wadsworth  v.  Union  P.  R.  Co.  18  Colo.  609,  23  L.  R.  A.  816,  36  Am.  St. 
Rep.  309,  33  Pac.  515,  holding  statute  making  railroad  liable  for  stock  killed,  ir- 
respective of  negligence,  unconstitutional ;  Wadsworth  v.  Union  P.  R.  Co.  18  Colo. 
610,  23  L.  R,  A.  816,  36  Am.  St.  Rep.  309,  33  Pac.  515,  holding  common-law 
liability  for  stock  killed  depends  on  negligence. 

Criticised  in  Bradford  Constr.  Co.  v.  Heflin,  88  Miss.  357,  12  L.R.A.(X.S-) 
1050,  42  So.  174,  8  A.  &  E.  Ann.  Cas.  1077,  holding  a  law  unconstitutional 
which  applied  to  railroad  corporations  only,  as  not  affording  equal  protec- 
tion of  the  laws. 

—  Police    power. 

Cited  in  Platte  &  D.  Canal  &  Mill.  Co.  v.  Dowell,  17  Colo.  386,  30  Pac.  68,  up- 
holding statute  requiring  covering  of  canal  within  city  limits. 

—  Interference    with    interstate    commerce. 

Cited  in  Burrows  v.  Delta  Transp.  Co.  106  Mich.  596,  29  L.  R.  A.  473,  64  X.  W. 
501,  holding  state  statute  requiring  use  of  fire  screens  in  steamer  stacks  not  in- 
terference with  interstate  commerce. 
Construction    of    statute    making'    railroad    liable    for    fires. 

Cited  in  Denver,  T.  &  G.  R.  Co.  v.  De  Graff,  2  Colo.  App.  45,  29  Pac.  664,  hold- 
ing necessity  for  proof  of  negligence  obviated  by  statute;  Mathews  v.  St.  Louis 
A  S.  F.  R.  Co.  121  Mo.  331,  25  L.  R.  A.  173,  24  S.  W.  591,  holding  that  statute 
creates  more  than  prima  facie  liability;  Garnet  Ditch  &  Reservoir  Co.  v, 
Sampson,  48  Colo.  292,  110  Pac.  79,  on  construction  of  statute  making  rail- 
road liable  for  fires;  Eraser  v.  Pere  Marquette  R.  Co.  18  Ont.  L.  Rep.  597,  hold- 
ing that  owner  cannot  recover  for  baled  hay  waiting  shipment  under  act 
making  railroad  liable  for  burning  of  crops  from  locomotive  sparks. 

Cited  in  note    (62  Am.  St.  Rep.   171)    on  statutes  making  railroad  liable  for 
fire. 
Construction   of   remedial   statutes. 

Cited  in  Arnold  v.  Arnold,  140  Ind.  203,  39  N.  E.  862,  holding  remedial  stat- 
ute giving  wife  right  of  action  for  support  to  be  liberally  construed. 

—  Statutes  applying:  to   railroad  corporations. 

Cited  in  Lewis  v.  Northern  P.  R.  Co.  36  Mont.  217,  92  Pac.  469,  holding  statute 
making   "railroad   corporation"    liable   for    injuries   to   servants,   applied   to   all 
persons  engaged   in   operating  a  railroad,  individuals   or   not. 
Cbarter  of  corporation  as  a  contract. 

Cited  in  American  Smelting  &  Ref.  Co.  v.  People,  34  Colo.  254,  82  Pac.  531, 
on  the  charter  of  a  corporation  as  a  contract. 


487  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  363 

3  L.  R.  A.  355,  TERRITORY  ex  rel.  McMAHOX  v.  O'COXXOR,  5  Dak.  397,  41 
X.  W.  746. 

Followed   without   special   discussion   in   Minnehaha   County   v.   Champion,   5 
Dak.  440,  41  N.  W.  754. 
Local  option   l:i  \>  • . 

Cited  in  Champion  v.  Minnehaha  County,  5  Dak.  431,  41  N.  W.  739,  holding 
that  local  option  laws  do  not  affect  liberty  or  property,  entitling  private  citizen  to 
certiorari  to  review  action  of  commissioners;  State  ea>  rel.  Ohlquist  v.  Swan,  1 
X.  D.  9,  44  X.  W.  492,  and  Territory  v.  Pratt,  6  Dak.  493,  43  X.  W.  711,  hold- 
ing adoption  of  prohibition  by  county  under  local  option  law  does  not  repeal 
law  prescribing  penalties  for  unlicensed  sale  of  liquor;  State  ex  rel.  Witter  v. 
Forkner,  94  Iowa,  11,  28  t>.  R.  A.  210,  62  X.  W.  772,  holding  statute  permitting 
suspension  of  prohibitory  law  upon  consent  of  voters  of  locality  not  unconstitu- 
tional as  delegating  legislative  power;  State  ex  rel.  Crothers  v.  Barber,  19  S. 
D.  11,  101  X.  W.  1078;  Re  O'Brien,  29  Mont.  537,  75  Pac.  196,  1  A.  &  E.  Ann. 
Cas.  373, — holding  a  county  option  law  constitutional. 

Cited  in  notes  (7  L.R.A.  296)  on  right  of  state  to  prohibit  manufacture  and 
sale  of  spirituous  liquors;  (1  L.R.A.  (X.S.)  483)  on  local  option  law  as  uncon- 
stitutional delegation  of  power;  (15  L.R.A. (X.S.)  922)  on  constitutional 
right  to  prohibit  sale  of  intoxicants;  (114  Am.  St.  Rep.  324,  325)  on  constitu- 
tionality of  local  option  laws. 
Legislative  journals  as  evidence  of  procedure. 

Cited  in  Ritchie  v.  Richards,  14  Utah,  372,  47  Pac.  670,  holding  legislative 
journals  may  be  looked  to  in  determining  validity  of  enrolled  act;  Markham  v. 
Anamosa,  122  Iowa,  692,  98  N.  W.  493,  holding  grade  ordinance  void,  where 
council  records  show  adoption  with  others  by  single  roll-call. 

Cited  in  notes   (11  L.  R.  A.  492)   on  printed  legislative  journals  as  evidence; 
(23  L.R.A.  347)   on  conclusiveness  of  enrolled  bill;    (40  L.R.A. (X.S.)   25,  26)   on 
conclusiveness  of  enrolled  bill. 
Powers   of   territorial   legislature. 

Cited  in  Xixon  v.  Reid,  8  S.  D.  513,  32  L.  R.  A.  319,  67  X.  W.  57,  holding 
granting  of  ferry  leases  within  province  of  territorial  legislation. 
Collateral   attack   on   conviction    nnder    unconstitutional    statute. 

Cited  in  note  (39  L.  R.  A.  456)  on  conviction  for  violating  unconstitutional 
statute  or  ordinance,  as  nullity  subject  to  collateral  attack. 

3   L.  R.  A.   363,   ELLIOT  v.   CHICAGO,  M.   &   ST.   P.  R.   CO.   5  Dak.   523,  41 
N.  W.  758. 

Affirmed  in  150  U.  S.  245,  37  L.  ed.  1068,  14  Sup.  Ct.  Rep.  85. 
Contributory  negligence  of  employee. 

Cited  in  Dyerson  v.  Union  P.  R.  Co.  74  Kan.  532,  7  L.R.A. (X.S.)  139,  87  Pac. 
680,  11  A.  &  E.  Ann.  Cas.  207,  holding  that  a  railroad  servant  must  exercise 
•due  care   to   keep  from   being  injured   in   crossing  tracks  or  he  will   be   guilty 
of   contributory    negligence. 
Tbe  fellow  servant  doctrine. 

Cited  in  Hardesty  v.  Largey  Lumber  Co.  34  Mont.  163,  86  Pac.  29,  on  the 
liability  of  master  for  injury  to  servant  by  fellow  servant,  under  the  statutes. 
Who  are  fellow  servants. 

Cited  in  Xorthern  P.  R.  Co.  v.  Hogan,  63  Fed.  104,  holding  brakeman  and  con- 
ductor fellow  servants  "in  same  general  business;"  Xorthern  P.  R.  Co.  v.  Ham- 
bly,  154  U.  S.  361,  38  L.  ed.  1014,  14  Sup.  Ct.  Rep.  983,  holding  day  laborer  em- 
ployed on  railroad  culvert  under  section  foreman,  fellow  servant  witli  conductor 


3  L.R.A.  363]  L.  R.  A.  CASES  AS  AUTHORITIES.  488 

and  engineer  on  passing  train;  Grattis  v.  Kansas  City,  P.  &  G.  R.  Co.  153  Mo. 
406,  48  L.  R.  A.  408,  77  Am.  St.  Rep.  721.  55  S.  W.  108,  holding  conductor  and 
engineer  fellow  servant  with  fireman  as  to  their  negligence;  Ell  v.  Northern  P. 
R,  Co.  1  N.  D.  349,  12  L.  R.  A.  101,  26  Am.  St.  Rep.  621,  48  N.  W.  225,  holding 
foreman  with  power  to  employ  and  discharge,  fellow  servant  with  employee ; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Martin,  7  N.  M.  169,  34  Pac.  536,  holding  section 
foreman  a  fellow  servant  with  conductor  and  engineer  on  work  train. 

Cited  in  footnotes  to  Fagundes  v.  Central  P.  R.  Co.  3  L.  R.  A.  824,  which  holds 
laborer  removing  snow  from  track,  fellow  servant  of  track  walker  and  conductor; 
Byrnes  v.  New  York.  L.  E.  &  W.  R.  Co.  4  L.  R.  A.  151,  which  holds  station  agent 
and  brakeman  fellow  servants;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Rice,  4  L.  R.  A. 
173,  which  holds  yard  inspector  and  yard  foreman  fellow  servants. 

Cited  in  notes  (5  L.  R.  A.  735)  on  who  are  fellow  servants;  (18  L.  R.  A.  796) 
on  what  constitutes  common  employment;  (50  L.  R.  A.  432,  433)  on  wrhat  serv- 
ants are  deemed  to  be  in  same  common  employment,  apart  from  statutes,  where 
no  questions  as  to  vice  principalship  arise;  (51  L.  R.  A.  618)  vice  principalship 
considered  with  reference  to  the  superior  rank  of  a  negligent  servant. 

3  L.  R.  A.  368,  MISSOURI  P.  R.  CO.  v.  WORTHAM,  73  Tex.  25,  10  S.  W.  741. 
Carrier's    duty    to    passenger    11 1  iu.h  t  int;. 

Cited  in  Texas  &  P.  R.  Co.  v.  Miller,  79  Tex.  84,  11  L.  R.  A.  398,  23  Am.  St, 
Rep.  308,  15  S.  W.  264,  requiring  such  care  of  carrier  at  station  while  stopping 
for  passenger  to  alight,  as  persons  of  greatest  care  and  prudence  would  use  in 
similar  cases;  St.  Louis  S.  W.  R.  Co.  v.  McCullough.  18  Tex.  Civ.  App.  536,  45 
S.  W.  324,  holding  carrier  only  required  to  use  such  care  toward  passenger  alight- 
ing as  prudent  and  competent  persons  would  have  used ;  Texas  &  P.  R.  Co.  v.  Leer 
21  Tex.  Civ.  App.  176,  51  S.  W.  351,  holding  carrier  obligated  to  stop  trains  suf- 
ficient time,  and  to  property  light  platform,  for  alighting;  McGovern  v.  In- 
terburban  R.  Co.  136  Iowa,  20,  13  L.R.A.  (N.S.)  480,  125  Am.  St.  Rep.  215,  111 
N.  W.  412,  holding  that  a  carrier  is  bound  to  furnish  a  passenger  a  safe  place 
to  alight  at  his  destination;  Texas  Midland  R.  Co.  v.  Frey,  25  Tex.  Civ.  App. 
388,  61  S.  W.  442,  holding  that  it  is  the  duty  of  the  railway  company  to 
provide  and  maintain  a  safe  way  of  reaching  and  departing  from  its  cars, 
and  they  must  be  the  safest  known  and  tested;  Great  Falls  &  0.  D.  R.  Co.  v. 
Hill,  34  App.  D.  C.  312;  Missouri,  K.  &  T.  R.  C.  v.  Dunbar,  57  Tex.  Civ. 
App.  416,  122  S.  W.  574;  Missouri,  K.  &  T.  R.  Co  v.  Dunbar,  49  Tex.  Civ. 
App.  15,  108  S.  W.  500, — holding  a  railroad  company  is  charged  with  a  high 
degree  of  care  in  furnishing  the  safest  appliances  for  use  by  passengers  in 
alighting;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Garner,  52  Tex.  App.  391,  115  S.  W.  273, 
holding  that  it  is  not  duty  of  railroad  to  use  ordinary  diligence  to  discover 
sick  and  feeble  condition  of  passenger  and  his  inability  to  help  himself;  Hart 
v.  Seattle,  R.  &  S.  R.  Co.  37  Wash.  427,  79  Pac.  954,  holding  that  a  railroad 
company  owes  the  passenger  a  duty  to  use  reasonable  care  to  keep  its  plat- 
forms in  safe  condition;  Illinois  C.  R.  Co.  v.  Cruse,  123  Ky.  467,  8  L.R.A. 
(N.S.)  302,  96  S.  W.  821,  13  A.  &  E.  Ann.  Cas.  593,  holding  that  a  railroad  com- 
pany or  its  servants  are  not  bound  to  assist  passengers  in  alighting. 

Cited  in  footnotes  to  De  Kay  v.  Chicago, vM.  &  St.  P.  R.  Co.  4  L.  R.  A.  632, 
which  holds  that  passenger  leaving  train  at  intermediate  station  assumes  re- 
sponsibility for  his  movements ;  White  v.  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  7  L. 
R.  A.  44,  which  holds  knowledge  of  unsafe  condition  of  station  platform  not  pre- 
vent recovery. 

Cited  in  notes  (6  L.  R.  A.  193)  on  duty  of  railroad  to  kepp  platforms  and  ap- 
proaches in  safe  condition;  (7  L.  R.  A.  Ill)  on  duty  of  railroads  to  furnish  safe 


489  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  370 

stations  and  platforms  for  use  of  passengers;  (8  L.  R.  A.  674)  on  carrier's  duty 
to  usi>  care  for  safety  of  passengers;  (11  L.  R.  A.  367)  on  duty  of  carrier  to 
assist  in  landing  passenger  safely;  (13  L.  R.  A.  95)  on  duty  of  railway  conduct- 
ors in  stopping  and  starting  trains;  (20  L.  R.  A.  524)  on  measure  of  care  which 
carrier  must  exercise  to  keep  its  platforms  and  approaches  safe. 

3  L.  R.  A.  370,  CLAFLIN  v.  CLAFLIN,  149  Mass.  19,  14  Am.  St.  Rep.  393,  20 

N.  E.  454. 
Validity  of  deferring:  payment  of  legacy. 

Cited  in  Young  v.  Snow,  167  Mass.  289,  45  N.  E.  686,  and  Brown  v.  Wright, 
168  Mass.  510,  47  N.  E.  413,  holding  testator's  direction  for  maintaining  residue 
as  trust  fund  valid  and  to  be  given  effect;  Rector  v.  Dalby,  98  Mo.  App.  195,  71 
S.  W.  1078,  holding  that  legatee  having  reached  full  age  may  compel  payment  of 
vested  legacy;  Ballantine  v.  Ballantine,  152  Fed.  783,  holding  a  testator  could 
postpone  the  payment  of  a  legacy  to  a  child  to  a  definite  period  beyond  the 
majority  of  the  legatee;  Wagner  v.  Wagner,  244  111.  112,  91  N.  E.  66,  18 
Ann.  Cas.  490,  holding  valid,  bequest  of  stock  in  trust  with  power  to  trustee 
to  use  stock  for  support  of  legatee  or  to  terminate  trust;  Hoffman  v.  Xew 
England  Trust  Co.  187  Mass.  207,  72  N.  E.  952,  holding  a  provision  in  a  will  de- 
fering  payment  for  two  lives  in  being  is  valid;  Dunn  v.  Dobson,  198  Mass. 
146,  84  N.  E.  327,  holding  restrictions  placed  on  an  equitable  estate  given  by 
testator,  defering  payments,  were  valid;  Lathrop  v.  Merrill,  207  Mass.  9, 
92  N.  E.  1019,  holding  that  testator  cannot  qualify  bequest  of  absolute  legal  in- 
terest in  personal  property  by  limitations  against  alienation;  Lanius  v.  Fletcher, 

100  Tex.   555,    101    S.   W.    1076,   holding   a   provision    in   a   will   requiring   the 
daughter's   share  to  be  held   in  trust  and  the  interest  paid  to  her  during  her 
"husband's  life,  was  valid. 

Cited   in   note    (25    Eng.   Rul.   Cas.   625)    on   invalidity   of   condition   in   will 
inconsistent  with,  and  repugnant  to,  previous  gift. 
Interest  In  legacy  •where  payment  deferred. 

Cited  in  Wardwell  v.  Hale,  161  Mass.  399,  42  Am.  St.  Rep.  413,  37  X.  E.  196, 
liolding  that  legacy  payable  when  legatee  reaches  specified  age  vests  at  testator's 
death;  Wemyss  v.  White,  159  Mass.  485,  34  N.  E.  718,  denying  beneficiary's  abso- 
lute right  to  income  where  trustee  may  at  his  discretion  discontinue  at  any  time, 
and  apply  in  best  way  for  beneficiary's  support  and  maintenance;  Danahy  v. 
Xoonan,  176  Mass.  468,  57  N.  E.  679,  holding  active  trust  requiring  exercise  of 
trustee's  discretion  not  to  be  terminated  at  will  of  cestui  que  trust;  Holmes 
v.  Holmes.  194  Mass.  557,  80  N.  E.  614,  holding  that  where  a  soji  was  to  re- 
ceive two  thirds  of  one  third  of  the  estate  every  five  year?,  he  became  an 
absolute  owner  of  the  one  third  at  the  expiration  of  the  five  years,  where 
widow  waived  provisions  of  will. 

Distinguished  in  Parker  v.  Cobe,  208  Mass.  263,  33  L.R.A.  (X.S.)    981,  94  X. 
E.   476,  21    Ann.  Cas.   1100,  holding  that  bequest  of  money  to  be  used  \n  pur- 
chase of  annuity  gives  legatee  right  to  money  and  he  can  insist  that  annuity 
shall  not  be  bought. 
Termination   of  trust. 

Cited  in  Bronson  v.  Thompson,  77  Conn.  217,  58  Atl.  692.  on  the  termina- 
tion of  a  trust  fund:  Wayman  v.  Tollansbee..  253  111.  615,  98  X.  E.  21,  holding 
that  trust  will  end  with  accomplishment  of  its  purpose;  Kimball  v.  Blanchard, 

101  Me.  390,  64  Atl.  645,  holding  that  the  termination  of  a  mere  passive  trust 
will  not  be  decreed  unless  all  the  parties  are  willing  that  it  should  and  they  are 
aui  juris. 


3  L.R.A.  370]  L.  R.  A.  CASES  AS  AUTHORITIES.  490 

Distinguished   in   Welch   v.   Episcopal  Theological   School,    189   Mass.    109,   75 
X.  E.  139,  holding  that  the  court  has  power  to  terminate  a  trust  in  a  proper 
case. 
Giving-  effect  to  testator's  intention. 

Cited  in  Stier  v.  Nashville  Trust  Co.  85  C.  C.  A.  422,  158  Fed.  602,  holding  . 
that  the  intentions  of  a  testator  should  be  carried  out  in  respect  to  restrictions 
and  limitations  provided  he  does  not  contravene  public  policy. 

3  L.  R.  A.  372,  STATE  v.  DALRYMPLE,  70  Md.  294,  17  Atl.  82. 
Snccesslon  tax  and  validity  of  same. 

Cited  in  State  v.  Hamlin,  86  Me.  499,  25  L.  R.  A.  634,  41  Am.  St.  Rep.  569,  30 
Atl.  76,  holding  collateral  inheritance  tax  valid  as  against  objection  of  unequal 
taxation  or  invasion  of  property  right  to  transmit  at  death  or  uniformity;  Re 
Wilmerding,  117  Cal.  284,  49  Pac.  181,  holding  collateral  inheritance  tax  not  in 
valid  because  inheritances  by  children  of  deceased  brothers  and  sisters  are  taxed 
while  inheritances  by  such  brothers  or  sisters  themselves  are  exempt,  nor  be- 
cause estates  below  $500  in  value  are  exempt;  Gelsthorpe  v.  Furnell,  20  Mont. 
304,  39  L.  R.  A.  173,  51  Pac.  267;  Minot  v.  Winthrop,  162  Mass.  119,  26  L.  R.  A. 
262,  38  X.  E.  512;  Callahan  v.  Woodbridge,  171  Mass.  597,  51  X.  E.  176,  — hold- 
ing reasonable  excise  tax  on  transmission  of  decedents'  property  valid  as  not  vio- 
lative  of  property  right;  State  v.  Alston,  94  Tenn.  680,  28  L.  R.  A.  180,  30  S.  W. 
750,  holding  tax  on  privilege  of  receiving  decedents'  property  valid  as  not  upon 
property  or  right  of  alienation;  Magoun  v.  Illinois  Trust  &  Sav.  Bank,  170  U.  S. 
288,  42  L.  ed.  1041,  18  Sup.  Ct.  Rep.  594,  holding  graded  collateral-inheritance 
tax  upon  classified  legacies  to  blood  strangers  valid  as  not  unequal  within  14th 
Amendment;  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  492.  84  X.  YV. 
1101,  holding  inheritance  tax  valid  as  to  uniformity  of  taxation  clause;  United 
States  v.  Perkins,  163  U.  S.  628,  41  L.  ed.  288,  16  Sup.  Ct.  Rep.  1073,  holding  in- 
heritance tax  upon  legacy  to  United  States  by  state  law  not  invalid  as  attempt 
to  tax  property  of  United  States;  Plummer  v.  Coler,  178  U.  S.  131,  44  L.  ed.  1006, 
20  Sup.  Ct.  Rep.  829,  holding  legacy  of  United  States  bonds  not  exempt  from 
state  collateral  inheritance  taxation;  Knowlton  v.  Moore,  178  U.  S.  55.  44  L.  ed. 
975,  20  Sup.  Ct.  Rep.  747,  9  Pa.  Dist.  R.  308,  holding  United  States  tax  on 
legacies  and  distributive  shares  valid  as  uniform  excise;  Black  v.  State.  113  Wis. 
223,  90  Am.  St.  Rep.  853,  89  X.  W.  522,  holding  inheritance  tax  upon  estates  of 
specified  value,  while  those  of  less  value  exempt,  invalid  for  arbitrary  discrim- 
ination between  beneficiaries  of  same  class;  Dixon  v.  Ricketts,  26  Utah,  225.  72 
Pac.  947;  State  v.  Clark,  30  Wash.  446,  71  Pac.  20,  sustaining  validity  of  in- 
heritance tax;  Re  Macky..  46  Colo.  82,  23  L.R.A. (X.S.)  1212,  102  Pac.  1075, 
holding  a  tax  on  interest  in  real  property  whether  passing  by  will  or  by  laws 
of  descent,  is  a  succession  tax;  Booth  v.  Com.  130  Ky.  101,  33  L.R.A. (N.S.)  604, 
113  S.  W.  61,  holding  an  inheritance  tax  is  not  a  tax  on  property  required  to 
be  uniform  on  all  property,  under  the  constitution;  Fisher  v.  State,  106  Md. 
119,  66  Atl.  661,  on  the  validity  of  the  inheritance  tax,  and  its  application; 
Re  Stixrud,  58  Wash.  350,  33  L.R.A. (X.S.)  637,  109  Pac.  343,  Ann.  Cas.  1912  A.. 
850,  holding  that  inheritance  tax  law  discriminating  against  alien  relatives  vio- 
lated treaty. 

Cited  in  notes  (4  L.R.A.  171)  on  succession  or  inheritance  tax  not  a  tax  on 
property;  (9  L.R.A. (X.S.)  123)  on  nature  of  right  to  take  by  will  or  in- 
heritance; (33  L.R.A.(X.S.)  610)  on  nature  of  inheritance  tax;  (127  Am.  St. 
Rep.  1048,  1090,  1096)  on  inheritance  taxation;  (33  L.R.A.(X.S.)  594,  602; 
41  Am.  St.  Rep.  580,  582,  583;  23  Eng.  Rul.  Cas.  105)  on  validity  of  inherit- 
ance taxes. 


491  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  376 

—  Property   within   state. 

Cited  in  Callahan  v.  Woodbridge,  171  Mass.  598,  51  X.  E.  176,  holding  cash 
and  bonds  of  foreign  company  transferable  by  delivery,  and  located  within  state 
subject  to  collateral  inheritance  tax;  Re  Romaine,  127  X.  Y.  87,  12  L.  R.  A.  408, 
•11  X.  E.  759,  holding  nonresident's  personalty  invested  or  habitually  kept  within 
state  subject  to  collateral  inheritance  tax  on  nonresident  decedent's  property 
within  state;  Small's  Estate,  11  Pa.  Co.  Ct.  6,  30  W.  X.  C.  522,  holding  nonresi- 
dent's interest  in  limited  partnership,  organized  and  operating  in  state,  subject 
to  collateral  inheritance  tax  on  property  within  state;  Ruckgaber  v.  Moore,  104 
Fed.  951,  holding  personalty  of  nonresident  alien  not  within  United  States  in- 
heritance tax  on  such  property  as  would  pass  under  state  intestate  laws;  Eidman 
v.  Martinez,  184  U.  S.  588,  46  L.  ed.  703,  22  Sup.  Ct.  Rep.  515,  holding  American 
securities  passing  by  will  of  nonresident  alien  and  intestate  laws  of  Spain  not 
within  United  States  inheritance  tax  on  personalty  passing  by  will  or  by  in- 
testate laws  of  any  state  or  territory;  Re  Bronson,  150  X.  Y.  17,  34  L.  R.  A.  244, 
44  X.  E.  707  (dissenting  opinion),  majority  holding  foreign-held  capital  stock 
of  domestic  corporation  within  inheritance  tax  upon  nonresident  decedent's  prop- 
erty within  state:  Mann  v.  Carter,  74  X.  H.  353,  15  L.R.A.(N.S.)  156,  68 
Atl.  130,  holding  deposits  in  a  foreign  savings  bank  made  by  a  resident  of 
the  state  are  property  within  the  state,  so  as  to  be  subject  to  inheritance  tax ; 
Xeilson  v.  Russell,  76  X.  J.  L.  35,  69  Atl.  476,  holding  stock  in  a  domestic 
corporation  is  property  within  the  state  so  as  to  be  subject  to  inheritance  tax, 
although  held  by  a  non-resident  at  the  place  of  his  domicile;  Fidelity  &  D.  Co. 
v.  C'renshaw,  120  Tenn.  616,  110  S.  W.  1017,  on  the  application  of  the  succes- 
sion tax  outside  of  state. 

Cited  in  footnote  to  Re  Swift's,  18  L.  R.  A.  709,  as  to  what  is  subject  to  suc- 
cession tax. 

Distinguished  in  Weaver  v.  State,  110  Iowa,  331,  81  X.  W.  603.  holding  cattle 
or  proceeds  thereof,  in  foreign  state,  not  subject  to  collateral  inheritance  tax  as 
within  jurisdiction  of  state:  Xeilson  v.  Russell,  76  X.  J.  L.  658,  19  L.R.A.(X.S.) 
891,  131  Am.  St.  Rep.  673,  71  Atl.  286,  holding  stock  in  a  Xew  Jersey  corpora- 
tion belonging  to  a  testator  domiciled  in  England  is  not  subject  to  inherit- 
ance tax  in  Xew  Jersey. 

3  L.  R.  A.  376,  BRIDGERS  v.  TAYLOR,  102  X.  C.  86,  8  S.  E.  893. 
Adopted    construction    of    statutes. 

Cited  in  Harper  v.  Pinkston.  112  X.  C.  301,  17  S.  E.  161,  holding  in  concurring 
opinion  Code  provisions  presumed  enacted  with  knowledge,  if  not  approval,  of 
prior  construction  where  previously  in  force;  Redmond  v.  Tarboro,  106  X.  C.  135, 
7  L.  R.  A.  543,  10  S.  E.  845,  holding  this  rule  not  absolutely  binding,  but  valuable 
aid  to  construction;  Lewis  v.  State,  58  Tex.  Crim.  Rep.  362,  127  S.  W.  808, 
21  Ann.  Cas.  656.  holding  rule  that  construction  of  statute  will  be  considered 
to  have  sanction  of  legislature  on  re-enactment,  applicable  to  local  option  law. 

Cited  in  footnote  to  Wolf  v.  Youbert,  21  L.  R.  A.  772,  which  requires  applica- 
tion, in  construing  adopted  statute,  of  construction  of  courts  of  state  from  which 
adopted. 
Inclusion  of  "property." 

Cited  as  changed  by  statute  in  Durham  Fertilizer  Co.  v.  Little,  118  X.  C. 
818,  24  S.  E.  664,  holding  debtor  subject  to  arrest  for  fraudulent  conveyance  of 
realty,  under  X.  C.  Code,  §  3765  (6). 

Cited  in  Hayne  v.  Woolley,  180  Fed.  575,  on  the  word,  property,  in  a  statute 
as  including  both  real  and  personal. 


3  L.R.A.  378]  (L.  R.  A.  CASES  AS  AUTHORITIES.  492 

3  L.  R,  A.  378,  TEX  EYCK  v.  POXTIAC,  0.  &  P.  A.  R,  CO.  74  Mich.  226,  16 
Am.  St.  Rep.  633.,  41  N.  W.  905. 

Creditor's  bill  to  set  aside  subsequent  foreclosure  and  assess  stock,  dismissed 
in  114  Mich.  496,  72  N.  W.  362. 
Parol    evidence    of    resolution. 

Cited  in  Ludington  Water-Supply  Co.  v.  Ludington,  119  Mich.  487,  78  N.  W. 
558,  in  statement  that  competency  of  parol  proof  of  adoption  of  resolution  by 
common  council  not  for  determination;  Zalesky  v.  Iowa  State  Ins.  Co.  102  Iowa, 
515,  70  N.  W.  187,  holding  parol  evidence  of  directors'  proceedings  admissible, 
if  no  record  made;  Cowley  v.  School  Dist.  Xo.  3,  130  Mich.  637,  90  X.  W.  680, 
denying  admissibility  of  parol  contradiction  of  records  to  show  teacher's  contract 
authorized;  Lipsett  v.  Hassard,  158  Mich.  511,  122  N.  W.  1091,  holding  parol 
evidence  of  what  was  said  by  stockholders  at  the  meeting  is  inadmissible  tu 
explain  an  unambiguous  resolution. 
Loans  from  and  compensation  of  corporate  director. 

Cited,  in  Jones  v.  Hale,  32  Or.  473,  52  Pac.  311,  upholding  director's  right  to 
recover  from  solvent  corporation  on  mortgage  given  to  him  in  good  faith;  Huf- 
faker  v.  Krieger,  107  Ky.  205,  46  L.  R.  A.  386,  footnote,  p.  384,  53  S.  W.  283. 
which  holds  directors  entitled  to  compensation  for  extraordinary  services  per- 
formed without  contract,  by  which  company  saved  from  bankruptcy;  Pfeiffer  v. 
Lansberg  Brake  Co.  44  Mo.  App.  66,  holding  director  of  corporation  not  entitled 
to  compensation  as  secretary  without  express  prearrangement ;  West  Point 
Teleph.  &  Teleg.  Co.  v.  Rose,  76  Miss.  65,  23  So.  629,  discussing  without  deciding, 
corporate  liability  in  quantum  meruit  for  essential  services  by  promoter  and  sec- 
retary; Brown  v.  Republican  Mountain  Silver  Mines,  17  Colo.  425,  16  L.  R.  A.  428. 
footnote,  p.  426,  30  Pac.  66,  which  requires  special  provision  for  compensation  for 
services  as  director;  Dunlap  v.  Montana-Tonopah  Min.  Co.  192  Fed.  716,  hold- 
ing that  director  can  recover  for  services  in  settling  accident  cases  and  securing 
reduction  of  taxes;  Hanna  v.  Chalker,  136  Mich.  11,  98  X.  W.  732,  holding  a 
contract  with  a  member  of  board  of  county  supervisors  to  employ  one  of  its 
members  to  transcribe  the  records  in  the  county  register  of  deeds  office  was 
valid,  as  not  inconsistent  with  his  duties;  Henry  v.  Michigan  Sanitarium  & 
Benev.  Asso.  147  Mich.  145,  110  N.  W.  523,  holding  that  a  trustee  of  an 
ordinary  corporation  is  not  precluded  from  contracting  with  the  board  to  per- 
form services  for  which  he  is  not  to  be  paid;  Barnes  v.  Spencer  &  B.  Co.  162 
Mich.  522,  139  Am.  St.  Rep.  587,  127  X.  W.  752,  holding  valid,  corporate  note 
executed  by  president  to  himself  for  timber  fairly  sold  to  company :  McConnell 
v.  Combination  Min.  &  Mill.  Co.  30  Mont.  259,  104  Am.  St.  Rep.  703,  76  Pac. 
194,  holding  that  in  the  absence  of  power  emanating  from  the  stockholders, 
from  statute,  or  from  by-law,  the  directors  have  no  authority  to  vote  themselves  a 
salary  and  citing  annotation  also  on  this  point. 

Cited  in  footnotes  to  Eaton  v.  Robinson,  29  L.  R.  A.  100,  which  requires  officers 
to  account  for  salaries  voted  for  and  paid  to  deprive  stockholders  of  rights ; 
Bassett  v.  Fairchild,  52  L.  R.  A.  611,  which  sustains  director's  right  without  di- 
rect contract,  to  compensation  for  services  not  connected  with  office. 

Cited  in  notes  in  (34  L.R.A.  (X.S.)  134)  on  obligation  of  public  corporation 
to  pay  for  services  under  contract  in  which  officer  personally  interested;  (17 
Am.  St.  Rep.  301)  on  transaction  between  corporation  and  director;  (136  Am. 
St.  Rep.  923;  7  Eng.  Rul.  Cas.  611,  612,  613)  on  service  by.  and  remuneration 
of,  directors  of  corporation. 

Distinguished  in  Burns  v.  Commencement  Bay  Land  &  Improv.  Co.  4  Wash. 
567,  30  Pac.  668,  denying  right  to  recover  from  corporation  for  regular  services 


493  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  385 

as  trustee  without  authority  in  articles,  by-laws,  or  other  source  than  trustees 

themselves. 

Constitutional    law. 

Cited  in  Warner  v.  Auditor  General,  129  Mich.  654,  89  X.  W.  591,  holding  act 
giving  salaried  officers  compensation  for  acting  as  auditors  void. 
i:»r<>i>i«-l   to  complain  att  stockholder**  of  act  ait  director*. 

Cited  in  Ten  Eyck  v.  Pontiac,  O.  &  P.  A.  R.  Co.  114  Mich.  500,  72  N.  W.  362, 
holding  corporation's  creditor  participating  as  director  in  issuance  of  "full  paid" 
stock  cannot  assert  fraud  upon  creditors. 

Cited   in  note    (11   Eng.  Rul.  Cas.   73)    on  extent  of  estoppel   of  corporation 
by   deed. 
Vote   by   majority   of   quorum. 

Cited  in  Smith  v.  State,  64  Kan.  733,  68  Pac.  641,  holding  vote  by  majority  of 
quorum  to  confess  judgment  valid. 

3  L.  R,  A.  381,  THOMAS  v.  HARTSHORNE,  45  N.  J.  Eq.  215,  16  Atl.  916. 

3  L.  R.  A.  383,  ROBINSON  v.  HUGHES,  117  Ind.  293,  10  Am.  St.  Rep.  45,  20 

N.  E.  220. 
Statutory    exemptions. 

Cited  in  Chatten  v.  Snider,  126  Ind.  390,  26  N.  E.  166,  holding  exemption  under 
original  execution  not  preventive  of  one  under  alias  execution  under  statute  pro- 
viding that  such  property  "shall  not  be  liable;"  Moss  v.  Jenkins,  146  Ind.  594r 
45  N.  E.  789.  holding  exemption  waived  by  failure  to  claim  before  sale,  under 
statute  requiring  debtor  to  make  schedule  before  receiving  exemption;  Noyes  v, 
fielding,  5  S.  D.  619,  59  N.  W.  1069,  holding  reasonable  time  must  be  allowed 
wife  to  claim  exemption  after  husband's  failure  to  demand  it,  in  absence  of  stat- 
utory limit;  Stout  v.  Price,  24  Ind.  App.  368,  56  N.  E.  857,  upholding  debtor's- 
right  to  claim  exemption  at  any  time  before  execution  sale;  Broeker  v.  Morris, 
42  Ind.  App.  421,  85  N.  E.  982,  holding  in  the  absence  of  sufficient  excuse  house- 
holder must  claim  statutory  exemption  before  sale  is  made. 

Cited  in  footnotes  to  Equitable  Life  Assur.  Soc.  v.  Goode,  35  L.  R.  A.  690,  which 
holds  law  library  of  attorney  occupying  part  of  time  in  legal  business  exempt; 
Consolidated  Tank  Line  Co.  v.  Hunt,  12  L.  R.  A.  476,  which  holds  oil  deliverer's 
team  exempt. 

Distinguished  in  State  ex  rel.  Miller  v.  Day,  3  Ind.  App.  159,  29  N.  E.  436, 
holding  no  exemption  from  levy  upon  personalty  received  upon  dissolution  of 
partnership  subsequent  to  issuance  of  execution  on  judgment  against  firm;  Miller 
v.  Swhier,  40  Ind.  App.  469,  79  N.  E.  1092,  holding  that  a  non-resident  who 
makes  an  assignment  for  the  benefit  of  creditors,  is  not  entitled  to  the  house- 
holder's exemption,  though  he  becomes  a  resident  before  the  property  is  ap- 
praised. 

3  L.  R.  A.  385,  CLEVELAND  ROLLING  MILL  CO  v.  CORRIGAN,  46  Ohio  St. 

283,   15  Am.   St.  Rep.  596,  20  N.  E.  466. 
Effect   of  omission   of   further   instruction. 

Cited  in  Columbus  R.  Co.  v.  Ritter,  67  Ohio  St.  63,  65  N.  E.  613,  holding  no 
error  upon  general  exception  to  unobjectionable  instruction,  for  failure  to  fur- 
ther instruct,  under  statute  making  such  objection  reach  all  errors  "in"  charge. 
Care   required   on   part   of   children. 

Cited  in  Smith  v.  Pittsburgh  &  W.  R.  Co.  90  Fed.  790,  and  Hepfel  v.  St.  Paul, 
M.  &  M.  R.  Co.  49  Minn.  267,  51  N.  W.  1049,  holding  child  bound  to  use  such 


3  L.R.A.  385}  L.  R.  A.  CASES  AS  AUTHORITIES.  494 

care  as  might  be  reasonably  expected  of  child  of  his  age  and  intelligence,  in  view 
of  the  circumstances;  Cincinnati  Street  R.  Co.  v.  Wright,  54  Ohio  St.  192.  32 
L.  R.  A.  343,  43  X.  E.  688,  Affirming  9  Ohio  C.  C.  511,  holding  boy  bound  to  no 
higher  care  than  other  boys  of  similar  age  and  circumstances,  without  proof  of 
special  intelligence;  Weldon  v.  Philadelphia,  W.  &  B.  R.  Co.  2  Penn.  (Del.)  13, 
43  Atl.  156,  holding  general  rule  to  be  modified  according  to  individual  ma- 
turity and  capacity  and  familiarity  with  conditions;  Cleveland  Terminal  &  Val- 
ley R.  Co.  v.  Heiman,  16  Ohio  C.  C.  493,  holding  bright  boy  of  twelve  guilty  cf 
contributory  negligence  in  playing  on  railroad,  totally  indifferent  to  dangerous 
surroundings;  Foy  v.  Toledo  Consol.  Street  R.  Co.  10  Ohio  C.  C.  156,  holding 
that  lad  of  twelve  years,  accustomed  to  street  cars,  may  be  found  guilty  of  con- 
tributory negligence;  Consolidated  Street  R.  Co.  v.  Maier,  9  Ohio  C.  C.  271. 
holding  in  action  for  personal  injuries,  that  allegation  that  plaintiff  was  fifteen, 
and  not  of  sufficient  age  and  experience  to  do  work  assigend,  insufficient  allega 
tion  of  ignorance  or  incapacity;  Lake  Erie  &  W.  R.  Co.  v.  Mickey,  53  Ohio  St. 
383,  29  L.  R.  A.  760,  53  Am.  St.  Rep.  640,  41  N.  E.  980,  holding  averment  that 
plaintiff  is  aged  nine  years  and  of  immature  experience  and  judgment  sufficiently 
rebuts  legal  presumption  of  contributory  negligence;  New  Albany  Forge  &  Roll- 
ing Mill  v.  Cooper,  131  Ind.  366,  30  N.  E.  294,  holding  contributory  negligence 
not  inferable  from  averment  of  injury  to  infant,  alleged  to  be  ignorant  and  un- 
informed of  danger  from  hot  slag;  Frank  Unnewehr  Co.  v.  Standard  Life  & 
Acci.  Ins.  Co.  99  C.  C.  A.  490,  176  Fed.  21,  on  the  degree  of  care  required  to 
be  exercised  by  a  child;  Lynchburg  Cotton  Mills  v.  Stanley,  102  Va.  596,  46 
S.  E.  908,  on  the  presumption  that  child  is  not  guilty  of  contributory  negli- 
gence; Ray  v.  Chesapeake  &  O.  R.  Co.  57  W.  Va.  340,  50  S.  E.  413,  referred 
to  as  erroneously  read  to  jury  because  it  states  clashing  lines  of  authorities, 
•with  regard  to  care  required  of  children ;  Miller  v.  Cincinnati  Traction  Co.  5 
Ohio  N.  P.  N.  S.  493,  18  Ohio  S.  &  C.  P.  Dec.  472,  holding  question  of  con- 
tributory negligence  of  child  to  be  for  the  jury;  Breckenridge  Co.  v.  Reagan. 
22  Ohio  C.  C.  81,  12  Ohio  C.  D.  56;  K.  D.  Box  &  Label  Co.  v.  Caine,  11  Ohio 
C.  C.  N.  S.  84,  30  Ohio  C.  C.  514;  Rohrer  v.  Culbertson,  3  Ohio  N.  P.  N.  S.  199. 
16  Ohio  S.  &  C.  P.  Dec.  100, — on  rule  of  contributory  negligence  and  ass,uinp- 
tion  of  risk  as  being  less  stringent  in  case  of  minors:  Ginn  v.  Myrick,  3  Ohio 
X.  P.  N.  S.  450,  16  Ohio  S.  &  C.  P.  Dec.  560,  holding  finding  that  plaintiff  was 
without  fault  not  necessary  in  action  for  personal  injury  where  petition  alleged 
that  plaintiff  was  an  immature  person. 

Cited  in  footnote  to  Gleason  v.  Smith,  55  L.  R.  A.  622,  which  denies  liability 
for  injury  by  collision  with  team,  to  twelve-year-old  boy  using  street  as  play- 
ground. 

Cited  in  notes  (12  L.R.A.  217)  on  contributory  negligence  of  infant  of  tender 
age;  (17  L.R.A.  79)  on  contributory  negligence  of  child  as  question  of  fact. 
Imputed  negligence. 

Cited  in  footnote  to  Casey  v.  Smith,  9  L.  R.  A.  259,  which  holds  negligence  of 
-custodian  imputable  to  young  child. 

Cited  in  notes  (6  L.  R.  A.  143)  on  imputed  negligence;   (6  L.  R.  A.  545)  on  doc- 
trine of  contributory  negligence  of  parent  or  guardian  imputed  to  child;    (17  L. 
H.  A.  79)   on  imputation  to  child  of  parent's  negligence. 
It  iiih  t   of  action  for  injuries  or  death. 

Cited  in  footnote  to  Illinois  C.  R.  Co.  v.  Slater,  6  L.  R.  A.  418,  which  author- 
izes allowance  to  infant  for  loss  by  injury,  of  earnings  during  minority. 

Cited  in  notes  (5  L.  R.  A.  172)  on  actions  for  damages  for  death  caused  by 
-negligence;  (6  L.  R.  A.  537)  on  suit  by  infant  for  negligent  injury;  (7  L.  R.  A. 


495  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  390 

154,  4  L.  R.  A.  261)  on  liability  for  death  caused  by  negligence;   (5  L.  R.  A.  340) 

on  the  law  of  the  land. 

•Care   required   toward   children    or   employees. 

Cited  in  Herdman-Harrison  Milling  Co.  v.  Spehr,  46  111.  App.  31,  holding  that 
employer  must  supplement  employee's  lack  of  requisite  capacity  by  reason  of 
youth,  by  instructions  and  safeguards  sufficient  to  enable  him  to  avoid  patent 
danger  by  ordinary  care;  Fitzgerald  v.  Alma  Furniture  Co.  131  N.  C.  640,  42  S. 
E.  940,  holding  evidence  of  employee's  youth,  inexperience,  and  ignorance  of  na- 
ture and  dangers  of  work,  and  of  employer's  failure  to  instruct,  may  be  submitted 
in  action  for  personal  injuries;  Becker  v.  Cincinnati  Street  R.  Co.  1  Ohio  X.  P. 
360,  holding  permitting  children  to  play  in  yard  from  which  they  could  get  into 
street  not  proximate  cause  in  law  for  subsequent  accident  in  street;  (8  L.  R.  A. 
490,  491)  on  relations  of  master  and  minor  employees;  (8  L.  R.  A.  843,  844)  on 
care  to  be  exercised  toward  children  to  avoid  injuries;  (41  L.  R.  A.  39)  on  knowl- 
edge as  element  of  an  employer's  liability  to  injured  servant;  (44  L.  R.  A.  61,  63, 
72)  on  duty  of  master  to  instruct  and  warn  his  servants  as  to  perils  of  the 
employment;  Daniels  v.  Johnson,  39  Colo.  186,  89  Pac.  811,  holding  that  the 
degree  of  care  due  to  a  minor  servant  depends  on  his  age,  intelligence  and 
experience;  Beck  v.  Standard  Cotton  Mills,  1  Ga.  App.  280,  57  S.  E.  998,  hold- 
ing that  the  master  is  held  to  a  higher  degree  of  care  toward  a  child  than  to 
adults,  and  citing  annotation  also  on  this  point;  Vanesler  v.  Moser  Cigar 
&  Paper  Box  Co.  308  Mo.  App.  629,  84  S.  W.  201,  holding  that  the  master 
must  show  the  child  the  dangers  of  the  machine,  when  he  is  set  to  work  upon 
it;  Breckenridge  Co.  v.  Reagan,  22  Ohio  C.  C.  80,  12  Ohio  C.  D.  56,  holding 
it  to  be  the  duty  of  master  employing  minors,  to  give  instructions  to  enable 
them  to  avoid  injury;  Vetter  v.  Cincinnati  Traction  Co.  13  Ohio  C.  C.  X.  S.  36, 
51  Ohio  C.  C.  537,  on  definition  of  ordinary  care  by  railway  toward  child  of 
four  years  at  crossing. 

Cited  in  notes  (49  Am.  St.  Rep.  408)  on  negligence  in  dealing  with  chil- 
dren; (24  Am.  St.  Rep.  323;  44  L.R.A.  61,  63,  72)  on  duty  of  master  to  in- 
struct and  warn  servants  as  to  perils  of  employment. 

Distinguished  in  Hinds  v.  E.  P.  Breckenridge  Co.  16  Ohio  C.  C.  17,  denying  lia- 
bility to  trespassing  child  for  negligent  injury. 
>  <-jii  iiieii  t    killing'    in   another   state. 

Cited  in  footnote  to  O'Reilly  v.  New  York  &  N.  E.  R.  Co.  6  L.  R.  A.  719,  which 
holds  action  maintainable  for  negligent  killing  in  another  state,  where  action 
survived  by  the  statutes  of  both  states. 
Knowledge  as  element  of  employer's   liability. 

Cited  in  note  (41  L.R.A.  39)  on  knowledge  as  element  of  employer's  liability 
to  injured  servant. 

3  L.  R.  A.  390,  SANDERS  v.  ST.  LOUIS  &  N.  O.  ANCHOR  LINE,  97  Mo.  26,  10 

S.  W.  595. 
Construction     of     re-enacted     provisions. 

Cited  in  Ex  parte  Durbin,  102  Mo.  103,  14  S.  W.  821,  holding  that  prior  con- 
struction of  statute  is  part  of  subsequent  re-enactment  in  same  words;  State  v. 
Hope,  100  Mo.  353,  8  L.  R.  A.  610,  13  S.  W.  490,  holding  statute  extending  law 
as  to  witnesses  in  civil  cases  to  criminal  cases  re-enacted  with  reference  to  rule 
against  general  objections  to  evidence;  State  v.  Hamey,  168  Mo.  195,  57  L.  R.  A. 
855,  67  S.  W.  620,  holding  adoption  of  new  constitution  preserving  rights  of  jury 
trial  as  heretofore  enjoyed  not  inclusive  of  statutory  right  of  jury  assessment  of 
alternative  punishment;  Gillespie  v.  State,  168  Ind.  311,  80  N.  E.  829,  hold- 


3  T  R  A    390]  L.  R-  A.  CASES  AS  AUTHORITIES.  496 

ing  that  where  legislature  adopts  or  re-enacts  a  statute  after  it  has  been 
construed  by  the  highest  court  of  the  state,  it  is  presumed  to  have  adopted 
that  construction. 

Cited  in  footnote  to  Maynard  v.  First  Representative  District,  11  L.  R-  A.  332. 
which  holds  Constitution  to  be  interpreted  in  light  of  its  own  history. 

Cited  in  notes    (5  LJLA.  668)    on  construction  of  adopted   statute   as   part 
thereof;   (10  Jan.  St.  Rep.  53)  on  construction  of  re-enacted  statutes. 
J«ri»di«-fioB   ••    f»ter»t»te   river. 

Cited  in  State  v.  Metealf.  65  lib.  App.  686,  holding  county  court  has  jurisdiction 
of  offense  beyond  middle  of  boundary  river,  under  ^naMing  act;  Cooley  v.  Golden, 

52  Mo.  App.  235,  holding  jurisdiction  extends  only  to  interstate  boundary  line 
when  river  abandons  channel;  Wedding  v.  Meyler,  192  I     -  4«  L.  ed.  '  "      M 
Sup.   CL   Rep-  322,  Reversing    107    Ky.  701,  60    S.  W.  20,  holding   jurisdiction 
acquired  under  Virginia  compact,  by  Indiana  court  by  service  of  process  on  Ohio 
river  on  Kentucky  side  of  low-water  mark;  Cook  v.  State,  81  Miss.  150,  32  So.  312, 
holding  that  thread  of  Mississippi  marks  territorial  jurisdiction  of  state  courts 
over  violations  of  liquor  law;  State  v.  Fandre,  54  W.  Va.  131,  63  LJELA.  SSI         - 
EL  269,  holding  that  Ohio  may  fix  charges  for  ferriage  from  its  side  of  river  to 
West  Virginia;  Wedding  v.  Meyler,  192  U.  S.  584,  48  L.  ed.  575,  66  LJLA.  840, 
24  Sup.  Ct.  Rep.  372,  holding  an  Indian^  court  acquired  jurisdiction  by  service 
of  a  summons  on  the  Ohio  River  on  the  Kentucky  side  of  the  low  water  mark 
on  the  Indiana  shore;  Lemore  v.  Com.  127  Ky.  486,  105  S.  W.  930,  on  the  con- 
current jurisdiction  of  Missouri  and  Kentucky  over  the  Mississippi   River  in 
regard  to  violation  of  liquor  laws;   State  v.  Seagraves,  111   Mo.  App.  356.  85 
S.  W.  925,  holding  that  a  state  could  punish  for  an  illegal  sale  of  liquor  made 
on  a  boundary  river  on  the  opposite  side;   Nielsen  v.  Oregon,  212  U.  S.  319, 

53  L.  ed.  529,  29  Sup.  CL  Rep.  383,  Reversing  51  Ore.  593,  131  Am.  St.  Rep. 
765,  95  Pa*.  720,  16  A.  &  EL  Ann.  Cas.  1113,  holding  state  of  Oregon  can  not 
regulate   fishing  on  Columbia,   river,   beyond   the   territorial    limits;    Columbia 
River  Packers'  Asso.  v.  McGowan,  172  Fed.  996,  —  on  power  to  regulate  fishing 
on  boundary  rivers;   State  v.  Faudre,  54  W.  Va.  131,  63  L.RJL  877,  102  Am. 
St.  Rep.  927,  46  S.  EL  269,  1  A.  4  EL  Ann.  Cas.  104,  on  the  exclusiveness  of 
jurisdiction  by  priority  of  exercise  in  cases  of  concurrent  jurisdiction. 

Cited  in  note  in   (65  LJLA.  964.  967)  on  jurisdiction  over  boundary  rivers. 
What  to  jmri*4ic4i*B. 

Cited  in  note  (11  Am.  St.  Rep.  821)  on  what  Is  jurisdiction. 

3  L.  R.  A.  392,  Kf  ATKDfSOX,  16  R.  L  413,  27  Am.  SIL  Rep.  745,  16  AtJ.  \   I 


Cited  in  note  (15  L.  R.  A.  76)  on  power  to  revoke  or  set  aside  voluntary  trust 
or  settlement. 
OMTJM  «f  trm*t- 

Cited  in  Peoples  Sav.  Rank  v.  Webb,  21  R.  L  220.  42  AtL  874,  holding  trust  not 
created  by  deposit  in  bank  in  the  name  of  depositor  as  trustee  for  infar  • 
only  intended  to  constitute  trust  in  case  of  death;  Tygard  v.  McComb,  54  Mo. 
App.  92,  holding  deposit  to  credit  of  minor  daughters,  intended  to  be  depositor's 
during  life  but  to  pass  upon  his  death,  no  gift;  Grieves  v.  Keane,  23  R.  L  137, 
49  Ail.  501.  holding  trust  created  by  placing  money  in  bands  of  party  for  third 
person;  Merigan  v.  MeGonigie.  205  Pa.  327,  54  AtL  994.  sustaining  niece's  right  to 
money  deposited  in  bank  "in  trust9'  for  her,  although  pass  book  never  delivered: 
Talbot  v.  Talbot,  32  R.  L  90,  78  AtL  535,  holding  trust  created  where  testator 
deed  conveying  to  trustees  unendorsed  certificates  of  stock  and  delivered 


497  L-  R-  A-  CASES  AS  AUTHORITIES.  [3  L.R.A.  394 

said  deed  to  one  of  the  trustees;  Watson  v.  Payne,  143  Mo.  App.  728,  128  S.  W. 
238,  holding  a  trust  created  in  personal  property  where  party  agrees  to  sell 
real  property  and  do  a  certain  thing  with  money  and  does  sell  land;  Gobeille  v. 
Allison,  30  R.  I.  529,  76  Atl.  354,  holding  a  trust  created  where  money  is  deposited 
in  trust  and  bank  book  delivered. 

Cited  in  notes  (4  L.  R.  A.  328)  on  recovery  back  of  special  deposit;  (5  L.  R.  A. 
72)  on  essentials  to  gift;  (19  L.  R.  A.  700)  on  delivery  of  bank  book  to  sustain 
gift  of  money  in  bank;  (32  L.  R.  A.  374)  on  what  sufficient  to  show  trust  in 
money  deposited;  (1  L.R.A.  (N.S.)  792)  on  bank  deposit  for  other  person  as  gift 
or  transfer  of  title;  (34  Am.  St.  Rep.  222,  223)  on  voluntary  trusts  arising  from 
declarations  of  trustor. 

3  L.  R.  A.  394,  STATE  v.  COLLINS,  16  R.  I.  371,  17  Atl.  131. 

Ui-ii  ii  !:i  I  i  ii  •_     bicycle     riiliii... 

Citing  in  Holland  v.  Bartch,  120  Ind.  50,  16  Am.  St.  Rep.  307,  22  X.  E.  83, 
holding  bicyclist  has  same  rights  as  driver  of  vehicle  in  street;  Geiger  v.  Per- 
kiomen  &  R.  Turnp.  Road,  28  L.  R,  A.  460.  4  Pa.  Dist.  R.  113,  holding  that  tolls 
might  be  collected  from  riders  of  bicycles  (Reversed  in  supreme  court)  ;  Swift  v. 
Topeka,  43  Kan.  673,  8  L.  R.  A.  774,  23  Pac.  1075,  holding  that  act  forbidding  bi- 
cyclists to  use  public  bridge  meant  part  devoted  to  pedestrians;  Richarson  v. 
Danvers,  176  Mass.  414,  50  L.  R.  A.  127r  79  Am.  St.  Rep.  320,  57  N.  E.  688,  holding 
term  "carriage"  in  statute  does  not  include  bicycle;  North  Chicago  Street  R.  Co. 
T.  Cossar,  203  111.  614,  68  N.  E.  88.  denying  damages  for  injuries  from  collision 
with  street  car,  resulting  from  careless  riding  of  bicycle. 

Cited  in  notes  (47  L.R.A.  293)  on  bicyclists  entitled  to  benefits  and  subject  to 
burdens  of  rules  of  the  road:  (48  Am.  St.  Rep.  377,  378)  on  bicycle  as  vehicle. 

Distinguished  in  Fox  v.  Clarke,  25  R.  I.  516.  65  L.R.A.  235,  57  Atl.  505.  1  A. 
&  E.  Ann.  Cas.  548,  holding  a  bicycle  not  a  carriage  within  a  statute  having  ref- 
erence to  the  duty  of  keeping  a  highway  safe. 

3  L.  R.  A.  394,  MILLS  v.  DAVIS,  113  N.  Y.  243,  21  N.  E.  68. 
\Vhen    statute   of   limitations   bars   action. 

Cited  in  Knapp  v.  Greene,  79  Hun.  266,  29  N.  Y.  Supp.  350,  holding  statute  of 
limitations  runs  against  note  payable  on  demand  "after  three  months'  notice" 
from  date:  Harden  v.  Dixon,  77  App.  Div.  244.  78  N.  Y.  Supp.  1061  (dissenting 
opinion),  majority  holding  that  statute  begins  to  run  day  after  date  of  note  pay- 
able "on  demand  after  date;"  Brooklyn  Bank  v.  Barnaby,  197  N.  Y.  227,  27 
L.R.A.  (N.S. )  852,  90  N.  E.  834.  on  commencement  of  limitations  on  demand  note. 

Cited  in  note  (25  Am.  St.  Rep.  830)  as  to  when  limitations  begin  to  run  on 
demand  note. 

Distinguished  in  Oaks  v.  Taylor,  30  App.  Div.  179,  51  N.  Y.  Supp.  775,  holding 
statute  of  limitations  does  not  run  from  date  of  contract,  against  conditional 
promise  to  buy  back  stock. 
Evidence  of  part  payment. 

Cited  in  Purdy  v.  Purdy,  47  App.  Div.  96,  62^N.  Y.  Supp.  153.  holding  indorse- 
ment of  part  payment  by  payee  on  note  must  be  proved  to  have  been  before  bar 
of  -tatute;  Wellman  v.  Miner,  179  111.  334,  53  N.  E.  609,  holding  corroborating 
evidence  of  indorsement  of  part  payment  sufficient  to  take  it  out  of  statnt.-; 
Schlotfeldt  v.  Bull,  18  Wash.  67,  50  Pac.  590.  holding  mere  indorsement  of  part 
payment  without  corroborative  proof  not  admissible:  Harding  v.  Grim,  25  Or.  510. 
36  Pac.  634,  holding  indorsement  of  part  payment,  made  after  bar  of  statute, 
inadmissible;  Bouton  v.  Hill,  4  App.  Div.  255.  38  N.  Y.  Supp.  498,  holding  in- 
dorsement of  difference  between  face  of  note  and  amount  due  to  be  part  payment, 
L.R.A.  Au.  Vol.  I.— 32. 


3  L.R.A.  394]  L.  R.  A.  CASES  AS  AUTHORITIES.  498 

taking  note  out  of  statute  of  limitations;  Re  Hearman,  1  Power.  30.  45  X.  Y.  S. 
R.  179,  19  X.  Y.  Supp.  539,  holding  indorsement  of  principal  or  interest  on  note 
must  be  proved  to  have  been  made  before  statute  runs;  Decker  v.  Zeluff,  23  App. 
Div.  Ill,  48  N.  Y.  Supp.  384,  holding  delivery  of  plants,  proceeds  to  be  credited 
on  bond,  part  payment;  Re  Salisbury,  41  Misc.  278,  84  X.  Y.  Supp.  215,  holding 
unsigned  indorsements  on  note  after  it  had  outlawed  inadmissible;  Ward  v.  Hoag, 
78  App.  Div.  511,  79  X.  Y.  Supp.  706,  holding  evidence  of  indorsements  made  on 
note  before  it  outlawed  admissible  in  action  on  note  to  which  statute  pleaded: 
Van  Xame  v.  Barber,  115  App.  Div.  596,  100  N.  Y.  Supp.  987,  holding  books  of 
accounts  admissible  to  show  a  part  payment  where  made  within  six  year  limita- 
tion. 
Evidence  of  personal  transactions  frith  deceased. 

Cited  in  Kroh  v.  Heins,  48  Xeb.  696,  67  X.  W.  771,  holding  party  with  direct 
interest  cannot  testify  against  representatives  of  deceased  concerning  personal 
transaction;  Van  Vechten  v.  Van  Vechten,  65  Hun.  223,  20  X.  Y.  Supp.  140,  hold- 
ing indorsement  on  note  by  deceased  inadmissible  as  a  personal  transaction. 

3  L.  R.  A.  397,  McKEXSEY  v.  EDWARDS,  88  Ky.  272,  21  Am.  St.  Rep.  339,  10  S. 

W.  815. 
Corporations;    form    of   contracts. 

Cited  in  Garrett  v.  Belmont  Land  Co.  94  Tenn.  472,  29  S.  W.  726,  holding  deed 
containing  no  recital  of  authority  for  execution,  signed  by  one  describing  himself 
as  president  of  corporation,  but  without  corporate  seal,  and  acknowledged  by  him 
individually,  not  deed  of  corporation. 

Cited  in  footnote  to  Reeve  v.  First  Xat.  Bank,  16  L.  R.  A.  143,  which  holds  note 
signed  with  individual  name,  with  designation  of  official  position  in  corporation, 
is  prima  facie  individual  obligation,  but  parol  evidence  admissible  to  show  con- 
tract that  of  corporation. 

Cited  in  note   (20  L.  R.  A.  707)   on  admissibility  of  extrinsic  evidence  to  show 
who  is  liable  as  maker  of  note. 
Individual    liability    of    directors. 

Cited  in  Woodward  v.  Beasley,  2  Tenn.  Ch.  App.  360,  holding  the  president 
of  a  corporation  alleged  to  have  been  fraudulently  formed  for  the  purpose  of 
of  buying  his  property  at  an  overvaluation,  said  corporation  not  having  legal 
authority  to  contract  debts,  having  indorsed  notes  as  collateral  to  complainant, 
is  bound  by  his  indorsement  though  the  notes  were  improperly  issued  as  to 
corporation. 

Cited  in  notes  (9  L.  R.  A.  653)  on  liability  of  directors  of  corporation;  (4  L. 
R.  A.  747  on  personal  responsibility  of  directors  to  creditors;  (12  L.  R.  A.  366) 
on  individual  liability  on  contracts  of  corporation;  (12  L.  R.  A.  346)  on  respon- 
sibility of  agent  on  his  contracts;  (19  L.  R.  A.  677)  on  personal  liability  of 
officers  on  note  made  for  corporation. 
Liability  of  principal  on  note  executed  by  uncut. 

Cited  in  note   (21  L.R.A.(X.S.)    1050,  1062)   on  liability  of  principal  on  nego- 
tiable paper  executed  by  agent. 
Liability  of  unauthorized  agent. 

Cited  in  wote  (34  L.R.A.(X.S.)  519)  on  liability  of  one  assuming,  without 
authority,  to  contract  as  agent. 

3  L.  R.  A.  398,  Ex  parte  GRIFFITHS,  118  Ind.  83,  10  Am.  Rep.  107,  20  X.  E.  513. 
Judicial    functions. 

Cited  in  Foreman  v.  Hennepin  County,  64  Minn.  372,  67  X.  W.  207,  holding  in- 


499  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  400 

valid  act  conferring  powers  upon  probate  judge  concerning  inebriates;  Griffin  v. 
State,  119  Ind.  521,  22  X.  E.  7,  holding  act  requiring  judge  to  prepare  syllabi  of 
reports  invalid;  Vigo  County  v.  Stout,  136  Ind.  59,  22  L.  R.  A.  401,  35  N.  E.  683, 
holding  court  had  control  of  running  of  elevator  in  courthouse;  State  ex  rel.  White 
v.  Barker,  116  Iowa,  110,  57  L.  R.  A.  252,  89  X.  W.  204,  holding  court  cannot  ap- 
point trustees  for  a  waterworks  system;  Re  Atty.  Gen.  21  Misc.  108,  47  N.  Y.  Supp. 
20,  holding  act  imposing  nonjudicial  duties  on  supreme  court  invalid;  State  ex 
rel.  Hovey  v.  Xofcle,  118  Ind.  355,  4  L.  R.  A.  105,  10  Am.  St.  Rep.  143,  21  X.  E.  244, 
holding  act  establishing  commissioners  as  judicial  assistants  to  the  court,  without 
power  of  appointment  in  court,  invalid;  Board  of  White  County  v.  Gwin,  136  Ind. 
586,  22  L.  R.  A.  413,  36  N.  E.  237,  holding  constitutional  laws,  however  unwise  and 
impolitic,  binding  on  courts;  Barnett  v.  State,  42  Tex.  Grim.  Rep.  321,  62  S.  W. 
7C5  (dissenting  opinion),  majority  sustaining  statute  providing  conviction  shall 
not  be  reversed  on  appeal  where  exception  not  reserved;  Chicago,  L  &  L.  R. 
Co.  v.  Railroad  Commission,  38  Ind.  App.  458,  78  X.  E.  338,  holding  that  the 
court  has  power  to  determine  whether  a  rate  has  been  legally  established  or  not; 
Ex  parte  Brown,  166  Ind.  602,  78  X.  E.  553,  holding  that  the  Supreme  Court 
has  inherent  power  to  entertain  a  petition  from  its  clerk  in  regard  to  his  duties 
in  reference  to  its  decisions;  Parkison  v.  Thompson,  164  Ind.  627,  73  X.  E.  109 
3  A.  &  E.  Ann.  Cas.  677,  holding  that  the  legislature  has  no  authority  over  the 
rules  adopted  by  the  judiciary  in  conducting  its'  official  business;  Alabama  West- 
ern R.  Co.  v.  Talley-Bates  Constr.  Co.  162  Ala.  410,  50  So.  341,  on  the  inability 
of  the  legislature  to  control  the  judiciary. 

Cited  in  footnote  to  Herndon  v.  Imperial  F.  Ins.  Co.  18  L.  R.  A.  547,  which  denies 
legislative  power  to  give  right  to  rehearing  contrary  to  court  rule. 

Distinguished  in  Jackson  County  v.  State,  147  Ind.  493,  46  X.  E.  908,  holding 
legislature  might  authorize  judges  to  perform  ministerial  duties  in  proceedings  to 
relocate  county  seat. 
Limitations    upon    poorer    of    legislature. 

Cited  in  Arnett  v.  State,  168  Ind.  186,  8  L.R.A.(X.S.)  1192,  80  X.  E.  153,  hold- 
ing that  the  fixing  of  a  compensation  limit  is  a  legislative  authority,  and  can- 
not be  delegated  to  the  Governor. 

3  L.  R.  A.  400,  STAXBROUGH  v.  COOK,  38  Fed.  369. 
Removal  of  separable  controversy. 

Cited  in  Bates  v.  Carpentier,  98  Fed.  454,  and  Carothers  v.  McKinley  Min.  & 
Smelting  Co.  116  Fed.  951,  holding  action  to  quiet  title,  with  several  defendants, 
severable  and  removable;  Sherwood  v.  Xewport  Xews  &  M.  Valley  Co.  55  Fed.  5, 
holding  cause  can  be  removed  when  plaintiffs  are  aliens ;  Spangler  v.  Atchison,  T. 
&  S.  F.  R.  Co.  42  Fed.  307,  holding  nonresident  defendant  may  remove  cause  when 
controversy  is  separable;  Insurance  Co.  v.  Delaware  Mut.  Ins.  Co.  50  Fed.  257, 
holding  plaintiff  cannot  join  separate  and  distinct  causes,  legal  and  equitable,  to 
prevent  removal  to  Federal  court;  St.  Louis,  A.  &  T.  R.  Co.  v.  Trigg,  63  Ark.  538, 
40  S.  W.  579,  holding  all  defendants  must  join  in  application  to  remove  cause: 
Xational  Bank  v.  Howard.  54  Misc.  82,  103  X.  Y.  Supp.  814,  holding  under  the 
third  clause  of  see.  2  of  act  of  1888  it  is  not  necessary  that  the  defendant  upon 
whose  application  the  order  of  removal  is  based  shall  be  a  nonresident;  Iowa 
Lillooet  Gold  Min.  Co.  v.  Bliss,  144  Fed.  455,  holding  that  parties  not  properly 
joined  as  parties  defendant  are  not  to  be  considered  on  question  of  removal  to 
Federal  court. 

Cited  in  note  (5  L.R.A.(X.S.)  56,  57,  72)  on  removal  of  cause  because  of  sep- 
. arable  controversy. 


3  L.R.A.  403]  L.  R.  A.  CASES  AS  AUTHORITIES.  500 

3  L.  R.  A.  403,  PEOPLE  v.  ELLIOTT,  74  Mich.  264,  16  Am.  St.  Rep.  640,  41  X. 

W.  916. 
What    is    «    lottery. 

Cited  in  Reilley  v.  United  States,  46  C.  C.  A.  34,  106  Fed.  904,  upholding  convic- 
tion of  conspiracy  in  carrying  on  lottery  called  policy;  State  v.  Dalton,  22  R.  I. 
83,  48  L.  R.  A.  779,  84  Am.  St.  Rep.  818,  46  Atl.  234,  holding  trading  stamps  not 
a  lottery;  Reilly  v.  Gray,  77  Hun,  409,  28  X.  Y.  Supp.  811,  holding  betting  on  horse 
racing  not  a  lottery  within  constitutional  prohibition;  Chancy  Park  Land  Co.  v. 
Hart,  104  Iowa,  596,  73  N.  W.  1059,  holding  sale  of  lots  to  persons,  to  be  appor- 
tioned as  the  purchasers  might  decide,  not  a  lottery;  Quatsoe  v.  Eggleston.  42  Or. 
319,  71  Pac.  66,  holding  offer  of  piano  for  one  holding  largest  number  of  tickets 
given  by  merchant  not  illegal;  United  States  v.  Rosenblum,  121  Fed.  182,  holding 
offer  of  prize  for  nearest  estimate  to  number  of  cigarettes  on  which  tax  paid, 
accompanied  with  coupons,  not  lottery;  Equitable  Loan  &  Secur.  Co.  v.  Waring, 
117  Ga.  615,  62  LJR.A.  93,  97  Am.  St.  Rep.  177,  44  S.  E.  320,  holding  that  con- 
sideration, prize  and  chance  are  necessary  elements  of  lottery;  Stevens  v.  Cin- 
cinnati Times-Star  Co.  72  Ohio  St.  147,  106  Am.  St.  Rep.  586,  73  X.  E.  1058,  hold- 
ing a  guessing  contest  in  a  newspaper,  to  be  lottery  where  money  is  paid  for 
chance  of  winning  a  prize;  Russell  v.  Equitable  Loan  &  Secur.  Co.  129  Ga.  163, 
58  S.  E.  881,  12  A.  &  E.  Ann.  Gas.  129,  on  what  constitutes  lottery;  People  ex  rel. 
Ellison  v.  Lavin,  179  X.  Y.  170,  66  L.R.A.  604,  71  X.  E.  753,  1  A.  &  E.  Ann.  Cas. 
165,  holding  a  distribution  of  prizes  to  those  who  shall  make  the  closest  estimate 
of  the  number  of  cigars  on  which  a  tax  is  paid  during  a  specified  month  to  be 
lottery;  Waite  v.  Press  Pub.  Asso.  11  L.R.A.(X.S.)  613,  85  C.  C.  A.  576,  155  Fed. 
63,  12  A.  &  E.  Ann.  Cas.  319,  holding  a  guessing  contest  on  the  popular  vote  for 
president  for  a  prize  to  subscribers  of  a  magazine  to  be  a  lottery ;  Com.  v.  Moor- 
head,  7  Pa.  Co.  Ct.  516,  holding  lottery  does  not  embrace  anything  which  is  free 
from  chance  or  hazard. 

Cited  in  footnotes  to  State  ex  rel.  Kellogg  v.  Kansas  Mercantile  Asso.  11  L.  R. 
A.  430,  which  holds  scheme  for  distribution  of  prizes  by  chance,  a  lottery;  Martin 
v.  Richardson,  19  L.  R.  A.  692,  which  holds  unlawful  purchaser  of  lottery  ticket 
entitled  to  recover  proceeds  from  one  fraudulently  obtaining  after  prize  is  drawn; 
Lynch  v.  Rosenthal,  31  L.  R.  A.  835,  which  holds  sale  of  lots  to  be  drawn  by  lot, 
with  one  prize  lot  to  be  given  to  one  of  purchasers  as  result  of  chance,  void ;  State 
ex  rel.  Prout  v.  Xebraska  Home  Co.  60  L.  R.  A.  448,  which  holds  scheme  by 
which  common  fund  distributed  among  contributors,  a  valuable  preference  in 
distribution  depending  on  chance,  a  lottery;  State  ex  rel.  Sheets  v.  Interstate  Sav. 
Invest.  Co.  52  L.  R.  A.  531,  which  holds  unlawful,  contracts  of  investment  securi- 
ties, etc.  capable  of  redemption  before  fixed  credit  accumulated  and  otherwise  giv- 
ing unequal  preferences  to  holders;  Thornhill  v.  O'Rear,  31  L.  R.  A.  792.  which 
holds  agreement  by  one  person  to  take  all  chances  of  raffle  not  unlawful :  Equitable 
Loan  &  Security  Co.  v.  Waring,  62  L.  R.  A.  93.  which  holds  consideration,  prize, 
and  chance,  elements  necessary  to  constitute  lottery. 

Cited  in  notes  (7  L.  R.  A.  599,  601  )on  what  constitutes  a  lottery;  (8  L.  R.  A. 
671)  on  definition  of  lottery  schemes;  (10  L.  R.  A.  60)  on  lotteries  and  lottery 
tickets;  (16  Am.  St.  Rep.  43)  on  what  is  a  lottery. 

Distinguished  in  People  v.  McPhee,.  139  Mich.  691,  69  L.R.A.  508,  103  X.  W.  174, 
5  A.  &  E.  Ann.  Cas.  835,  as  not  laying  down  a  definition  of  "lottery"  applicable 
to  all  cases. 
Gambling  paraphernalia. 

Cited  in  People  v.  Hess,  85  Mich.  131,  48  X.  W.  181,  holding  officer  might  seizo 
gambling  paraphernalia  without  search  warrant. 


501  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  409 

Liability   for  condncting  lottery. 

Cited  in  Fidelity  Funding  Co.  v.  Vaughn,  18  Okla.  26,  10  L.R.A.(X.S.)  1128, 
90  Pac.  34,  holding  where  agent  has  knowledge  thereof  he  is  equally  liable  with 
principal  for  running  a  lottery. 

3  L.  R.  A.  406,  HAROLD  v.  JONES,  86  Ala.  274,  5  So.  438. 
Rights    in    driving:    Ion-. 

Cited  in  Coyne  v.  Mississippi  &  R.  River  Boom  Co.  72  Minn.  536,  41  L.  R.  A. 
498,  71  Am.  St.  Rep.  508,  75  X.  W.  748,  holding  owner  of  lawfully  placed  boom 
in  navigable  river  not  liable  for  damages  caused  by  jam  not  formed  by  his  negli- 
gence; Outterson  v.  Gould,  77  Hun,  431,  28  N.  Y.  Supp.  789,  holding  damages  not 
recoverable  for  carrying  away  of  dam  in  high  water  when  reasonable  care  was 
used  in  driving  logs;  Langstaff  v.  McRae,  22  Ont.  Rep.  86,  holding  use  of  a  boom 
lawful  by  statute  and  where  no  negligence  is  shown  creates  no  liability  for  tort. 

Cited  in  footnote  to  New  Orleans  &  X.  E.  R.  Co.  v.  McEwen,  38  L.  R.  A.  134, 
which  holds  owner  not  liable  for  damage  by  driving  logs  broken  from  raft  in  vio- 
lent storm. 

Cited  in  notes  (39  L.  R.  A.  491)  on  right  to  construct  log  boom;  (3  L.  R.  A. 
809)  on  facilities  of  mill  owners  for  passage  of  logs;  (41  L.  R.  A.  372)  on  right  to 
use  stream  for  floating  logs;  (39  L.  R.  A.  493)  on  private  right  of  action  against 
owner  of  log  boom;  (44  L.  ed.  U.  S.  438)  on  obstruction  of  navigable  stream  by 
log  booms. 
What  -waters  are  navigable. 

Cited  in  Bayzer  v.  McMillan  Mill  Co.  105  Ala.  399,  53  Am.  St.  Rep.  133,  16  So. 
1)23,  holding  creek,  never  used  except,  spasmodically,  for  floating  sawlogs  and 
lumber,  not  navigable. 

Cite^d  in  footnotes  to  Heyward  v.  Farmers'  Min.  Co.  28  L.  R.  A.  42,  which  holds 
navigable  capacity  test  of  navigability;  Olive  v.  State,  4  L.  R.  A.  33,  which  holds 
stream  navigable  throughout  year  when  adaptable  for  valuable  floatage  at  usual 
stage  of  water. 

Cited  in  note   (5  L.  R.  A.  393)   on  navigable  watercourses. 
Riparian   rights. 

Cited  in  notes  (5  L.  R.  A.  62)  on  riparian  rights  of  owners  bounding  on  nav- 
igable stream;  (13  L.  R.  A.  828)  on  recognition  and  enforcement  in  equity  of 
rights  of  riparian  proprietors;  (9  L.  R.  A.  195)  on  franchise  of  water  companies. 
Obstruction  of  highway. 

Cited  in  note  (14  Am.  St.  Rep.  429)  on  obstruction  of  highway. 

<   on  I'li-ion     of    goods. 

Cited  in  footnote  to  Stone  v.  Marshall  Oil  Co.  65  L.R.A.  219,  which  holds  that 
assignee  of  gas  lease  fraudulently  commingling  products  of  the  leased  well  with 
product  of  other  wells  without  keeping  record  of  amount  of  gas  produced  by 
former,  compelled  to  account  to  assignor  for  proportionate  part  called  for  by 
contract,  of  the  entire  amount  of  gas  produced. 

3  L.  R.  A.  409,  SUPREME  LODGE,  K.  OF  P.  v.  KNIGHT,  117  Ind.  489,  20  N.  E. 

479. 
Remedies    by    and    against    mntnal    benetit    company. 

Cited  in  Gibson  v.  Megrew,  154  Ind.  281,  48  L.  R.  A.  366,  56  N.  E.  674,  holding 
mortuary  assessment  in  benefit  association  cannot  be  collected  by  action;  Great 
Western' Mut.  Aid  Asso.  v.  Colmar,  7  Colo.  App  281,  43  Pac  159,  holding  action, 
and  not  mandamus,  proper  remedy  to  compel  assessn-nt  for  death  claim;  Sour- 
wine  v.  Supreme  Lodge  K.  of  P.  12  Ind.  App.  450,  :>4  Am.  St.  Rep.  532,  40  N.  E. 


3  L.R.A.  409]  L.  R.  A.  CASES  AS  AUTHORITIES.  502 

646,  holding  beneficiaries  can  recover  when  member  of  association  was  wrongfully 
refused  transfer  to  another  class  by  association's  medical  examiner;  Supreme- 
Council,  0.  of  C.  F.  v.  Forsinger,  125  Ind.  53,  9  L.  R.  A.  501,  21  Am.  St.  Rep.  196r 
25  X.  E.  129,  holding  beneficiary  of  benefit  association  not  bound  to  anticipate- 
defense  in  action  for  injuries;  Fullenwider  v.  Supreme  Council  of  R.  L.  73  111. 
App.  338,  holding  injunction  would  not  be  granted  to  restrain  the  enforcement  of 
amendments  to  by-laws  of  fraternal  society;  Schmidt  v.  German  Mut.  Ins.  Co.  4 
Ind.  App.  342,  30  N.  E.  939,  holding  notice  required  to  forfeit  mutual  fire  insur- 
ance company's  policy  is  personal;  Barrows  v.  Mutual  Reserve  L.  Ins.  Co.  81  C, 
C.  A.  71,  151  Fed.  465,  holding  that  courts  will  interfere  with  directors  only 
where  there  is  a  manifest  abuse  of  discretion. 

Cited  in  notes   (13  L.  R.  A.  625)  on  binding  effect  of  judicial  decisions  by  mu- 
tual benefit  associations;    (7  L.  R.  A.  582)   on  conclusiveness  of  erroneous  judg- 
ments until  reversal. 
By  latvs  as  constructive  notice. 

Cited  in  Green  v.  Felton,  42  Ind.  App.  680,  84  N.  E.  166,  holding  by  laws  of 
corporation  sufficient  notice  to  stockholders  of  contents  thereof. 
By-laws   of  benevolent  societies. 

Cited  in  Evans  v.  Southern  Tier  Masonic  Relief  Asso.  76  App.  Div.  156,  78  N. 
Y.  Supp.  611,  holding  constitution  and  by-laws  of  mutual  benefit  society  must  be 
taken  as  a  whole  in  determining  the  contract  with  member;  Peterson  v.  Gibson, 
191  111.  368,  54  L.  R.  A.  838,  85  Am.  St.  Rep.  263,  61  N.  E.  127,  holding  certifi- 
cate issued  on  condition  of  compliance  with  by-laws  refers  to  those  then  existing; 
Farmers  Mut.  Hail  Ins.  Asso.  v.'  Slattery,  115  Iowa,  415,  88  N.  W.  949,  holding 
agreement  of  member  of  benefit  association  to  be  bound  by  by-laws  refers  to  those 
then  in  existence;  Fullenwider  v.  Supreme  Council  of  R.  L.  180  111.  626,  72  Am, 
St.  Rep.  239,  54  N.  E.  485,  holding  member  agreeing  to  be  bound  by  by-laws  herein- 
after to  be  enacted  has  no  vested  right  in  existing  rate  of  assessment;  Home 
Forum  Benefit  Order  v.  Jones,  5  Okla.  609,  50  Pac.  940,  holding  party  applying 
for  membership  to  fraternal  order  through  local  branch  presumed  to  know  by-law 
giving  home  office  exclusive  right  to  issue  certificate:  Wist  v.  Grand  Lodge  A.  O. 
U.  W.  22  Or.  281,  29  Am.  St.  Rep.  603,  20  Pac.  610,  holding  by-law  of  benefit  soci- 
ety limiting  the  nomination  of  beneficiaries  not  retroactive;  Lloyd  v.  Supreme 
Lodge,  K.  of  P.  38  C.  C.  A.  658,  98  Fed.  70  (same  case  on  subsequent  appeal  in 
46  C.  C.  A.  154,  107  Fed.  70)  holding  by-law  reducing  benefit  if  death  caused  in- 
certain  way  not  retroactive;  Marshall  v.  Pilots'  Asso.  18  Pa.  Super.  Ct.  650,  hold- 
ing member  of  pilot's  association  bound  by  subsequent  by-law  reducing  amount 
of  benefit;  Interstate  Bldg.  &  L.  Asso.  v.  Wooten,  113  Ga.  252,  38  S.  E.  738.  ho! cl- 
ing by-law  permitting  discharge  of  indebtedness  upon  certain  payment  by  bor- 
rowing member  of  loan  association  cannot  thereafter  be  altered  to  increase  such 
payment;  Newton  v.  Northern  Mut.  Relief  Asso.  21  R.  I.  480,  44  Atl.  690,  holding 
member  bound  by  by-laws  accepted  in  certificate  reducing  benefit;  Pain  v.  Socie't£ 
St.  Jean  Baptiste,  172  Mass.  323,  70  Am.  St.  Rep.  287,  52  N.  E.  502,  holding  mem- 
ber of  benefit  association  bound  by  by-law  reducing  benefits,  passed  after  he  be- 
came member;  Supreme  Lodge  K.  of  P.  v.  Kutscher,  179  111.  346,  70  Am.  St.  Rep. 
115,  53  N.  E.  620.  holding  that  suicide  of  member  of  benefit  association  voided 
certificate,  as  provided  by  by-law  passed  after  membership  began;  Supreme  Tentr 
K.  of  M.  v.  Hammers,  81  111.  App.  568,  holding  by-law  of  mutual  benefit  society 
forfeiting  policy  for  suicide  reasonable;  Domes  v.  Supreme  Lodge  K.  of  P.  75  Miss. 
479,  23  So.  191,  holding  suicide  amendment  passed  by  supreme  lodge  in  mode  other 
than  that  provided  by  constitution  binding;  Supreme  Lodge  K.  of  P.  v.  Trebber 
179  111.  353,  70  Am.  St.  Rep.  120,  53  N.  E.  730,  holding  suicide  by-law  binding 


503  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  409 

though  voted  by  lodge  in  manner  different  from  that  provided  by  constitution; 
Pfister  v.  Gerwig,  122  Ind.  570,  23  N.  E.  1041,  holding  policy  issued  to  member 
of  mutual  insurance  company  voided  by  mortgage  given  in  violation  of  by-law; 
Lawson  v.  Hewell,  118  Cal.  620,  49  L.  R.  A.  403,  50  Pac.  763,  holding  that  courts 
will  not  consider  questions  relating  solely  to  rules  of  conduct  of  Masonic  organiza- 
tions; Interstate  Bldg.  &  L.  Asso.  v.  Hofter,  76  Miss.  779,  24  So.  871,  holding 
borrowing  member  of  building  association  has  no  vested  right  in  amendable  by- 
law, in  force  when  loan  procured;  Wuerfler  v.  Grand  Grove,  116  Wis.  28,  96  Am. 
St.  Rep.  940,  92  N.  W.  433,  denying  power  to  change  rights  under  benefit  certificate 
by  subsequent  change  in  by-laws;  Wright  v.  Minnesota  Mut.  L.  Ins.  Co.  193 
U.  S.  664,  47  L.  ed.  836,  24  Sup.  Ct.  Rep.  549,  holding  mutual  insurance  company's 
change  from  assessment  plan  to  legal  reserve  flat  premium  plan  of  "old  line'* 
companies  valid;  Hayden  v.  Franklin  L.  Ins.  Co.  69  C.  C.  A.  423,  136  Fed.  291; 
United  Moderns  v.  Colligan,  34  Tex.  Civ.  App.  176,  77  S.  W.  1032,— holding 
Constitution  and  by-laws  are  a  part  of  the  contract  between  mutual  benefit 
society  and  its  members;  Bruley  v.  Royal  League,  3  111.  C.  C.  338,  holding  mem- 
ber of  mutual  benefit  society  must  take  notice  of  all  the  by-laws  which  affect 
his  interest;  McCallister  v.  Shannondale  Co-op.  Teleph.  Co.  47  Ind.  App.  527,  94 
X.  E.  910,  holding  that  every  corporation  has  inherent  power  to  pass  by-laws  for 
its  government  without  interference  by  courts;  McDermott  v.  St.  Wilhelminia 
Benev.  Aid  Soc.  24  R.  I.  535,  54  Atl.  58,  holding  member  bound  by  an  election 
of  an  officer  under  rules  of  association,  though  absent  at  the  time;  Burns  v. 
Manhattan  Brass.  Mut.  Aid  Soc.  102  App.  Div.  469,  92  N.  Y.  Supp.  846,  holding 
a  provision  in  a  Constitution  not  by  legislative  authority  is  simply  a  by-law; 
Farmers'  Mut.  F.  Ins.  Co.  v.  Jackman,  35  Ind.  App.  12,  73  N.  E.  730,  holding  that 
if  articles  of  association  of  mutual  benefit  corporation  contain  provisions  not  re- 
quired by  statute  such  provisions  are  void  as  such  and  must  be  construed  to  be 
by-laws;  United  Brotherhood,  C.  &  J.  v.  Dinkle,  32  Ind.  App.  280.  69  N.  E.  707; 
Farra  v.  Braman,  171  Ind.  538,  86  N.  E.  843, — holding  that  by-laws,  rules  and 
regulations  of  mutual  benefit  association  are  a  part  of  insurance  contract;  Boylea 
v.  Roberts,  222  Mo.  772,  121  S.  W.  805  (dissenting  opinion),  on  by-laws  of  cor- 
poration as  binding  on  members;  Theorell  v.  Supreme  Court,  H.  115  111.  App.  318,, 
holding  when  a  member  of  a  fraternal  benefit  society  expressly  agrees  to  be 
bound  by  by-laws  subsequently  enacted  he  is  bound  thereby  unless  they  are  un- 
reasonable; Eversberg  v.  Supreme  Tent  K.  M.  33  Tex.  Civ.  App.  553,  77  S.  W. 
246;  Hall  v.  Western  Traveler's  Acci.  Asso.  69  Xeb.  604,  96  X.  W.  170, — holding 
a  member  of  a  mutual  insurance  company  who  agrees  to  be  bound  by  subse- 
quent by-laws  is  bound  by  subsequent  reasonable  by-laws;  Pain  v.  Socie'te'  St. 
Jean  Baptiste,  172  Mass.  323,  70  Am.  St.  Rep.  287,  52  X.  E.  502,  holding  a  subse- 
quent but  reasonable  change  in  amount  of  sick  benefits  to  be  binding;  Head  Camp 
P.  J.  W.  W.  v.  Woods,  34  Colo.  22,  81  Pac.  261,  holding  members  bound  by  an; 
amendment  for  payment  of  an  additional  rate  by  those  engaging  in  certain  oc- 
cupations after  having  received  his  benefit  certificate;  Hadley  v.  Queen  City 
Camp  Xo.  27,  W.  W.  1  Tenn.  Ch.  App.  431,  holding  the  legislation  making  a 
change  in  laws  of  mutual  benefit  society  as  to  beneficiary  not  being  expressly- 
made  to  apply  to  existing  contracts,  was  prospective  and  not  retroactive;  Gil- 
more  v.  Knights  v.  Columbus,  77  Conn.  62,  107  Am.  St.  Rep.  17,  58  Atl.  223,  1 
A.  &  E.  Ann.  Gas.  715,  holding  members  bound  by  a  reasonable  amendment  subse- 
quently made  to  the  list  of  extra  hazardous  occupations;  Saltman  v.  Xesson,  201 
Mass.  542,  88  X.  E.  3,  holding  a  by-law  changing  form  of  worship  of  a  religious 
corporation  to  be  void;  Wuerfler  v.  Grand  Grove  W.  0.  D.  116  Wis.  28,  96  Am.  St. 
Rep.  940,  92  N.  W.  433,  holding  void  an  amendment  canceling  all  $1000  certifi- 
cates on  substituting  a  death  benefit  certificate  indefinite  in  amount;  Wright  v> 


3  L.R.A.  409]  L.  R.  A.  CASES  AS  AUTHORITIES.  504 

Minnesota  Mut.  L.  Ins.  Co.  193  U.  S.  664,  47  L.  ed.  836,  24  Sup.  Ct.  Rep.  549, 
sustaining  a  change  from  assessment  plan  to  regular  premium  basis  under  state 
law;  Reynolds  v.  Supreme  Council,  R.  A.  192  Mass.  155,  7  L.R.A.(X.S.)  1162,  78 
N.  E.  129,  7  A.  &  E.  Ann.  Cas.  776,  holding  valid  an  amendment  of  by-law  class- 
ing members  according  to  age  for  the  purpose  of  readjusting  method  of  assess- 
ment; Mathieu  v.  Deupert,  112  Md.  629,  77  Atl.  112,  holding  valid  a  subsequent 
amendment  making  designation  of  beneficiary  void  where  he  marries  after  is- 
suance of  certificate;  Supreme  Council  A.  L.  H.  v.  Jordan,  117  Ga.  811,  45  S.  E. 
33,  holding  that  the  amount  which  society  agrees  to  pay  can  not  be  changed  by  a 
subsequent  amendment  to  decrease  amount;  Kennedy  v.  Iowa  Legion  of  H.  184 
Iowa,  68,  99  N.  W.  137,  holding  where  there  was  a  subsequent  change  of  benefits 
upon  compliance  by  the  assured  with  certain  requirements  rights  of  beneficiary 
were  not  changed  where  deceased  failed  to  perform  conditions. 

Cited  in  footnotes  to  Peterson  v.  Gibson,  54  L.  R.  A.  836,  which  holds  provision 
in  benefit  certificate  for  compliance  with  constitution  and  by-laws  refers  to  exist- 
ing ones  only;  Strauss  v.  Mutual  Reserve  Fund  Life  Asso.  54  L.  R.  A.  605,  which 
holds  unauthorized,  changes  in  constitution  and  by-laws  destroying  value  of  con- 
tract with  insured;  Parish  v.  New  York  Produce  Exchange,  56  L.  R.  A.  149,  which 
denies  power  to  bind  dissenting  members  by  amending  by-laws  so  as  to  distribute 
among  living  members  fund  accumulated  for  persons  dependent  on  members  at 
time  of  death;  Thibert  v.  Supreme  Lodge,  K.  of  H.  47  L.  R.  A.  136,  which  holds 
member  of  beneficial  insurance  association  protected  against  unreasonable  amend- 
ments of  by-laws;  Gaut  v.  Supreme  Council,  A.  L.  of  H.  55  L.  R.  A.  465,  which 
denies  power  of  benefit  society  to  reduce  amount  of  certificate  after  payment  of 
assessments  for  years;  Bragaw  v.  Supreme  Lodge,  K.  &  L.  of  H.  54  L.  R.  A.  602, 
which  denies  power  of  benefit  society  to  change  at  will  contract  of  insurance  made 
with  each  member;  Shipman  v.  Protected  Home  Circle,  63  L.R.A.  347.  which  holds 
former  members  bound  by  adoption  of  by-law  relieving  benefit  society  from  lia- 
bility for  death  benefits  in  case  of  suicide;  Del  Ponte  v.  Societa  Italiana  di  Mar- 
coni, 70  L.R.A.  188,  which  upholds  by-law  of  benefit  society  providing  for  ex- 
pulsion of  members  for  defaming  members  of  directing  council  or  any  member 
for  reasons  connected  with  society  causing  dissensions  and  disorders  in  society. 

Cited  in  notes  (7  L.  R.  A.  189)  on  transfer  of  mutual  benefit  certificate;  (25 
L.R.A.  49)  on  effect  of  corporate  by-laws  as  noted;  (1  L.R.A.(N.S.)  623)  on  right 
of  assessment  company  to  change  plan  or  class  of  policies;  (31  L.R.A. (N.S.)  427, 
428)  on  right  of  mutual  benefit  society  to  decrease  benefits;  (43  Am.  St.  Rep. 
157)  on  limitations  on  power  of  private  corporation  to  enact  by-laws;  (52  Am. 
St.  Rep.  556,  557,  558)  on  by-laws  of  mutual  or  membership  life  or  accident  in- 
surance; (83  Am.  St.  Rep.  707,  709,  711,  716,  719)  on  effect  of  changes  in  by-laws 
of  beneficial  association  as  against  pre-existing  members. 

Distinguished  in  Smith  v.  Northwestern  Xat.  L.  Ins.  Co.  123  Wis.  594,  102 
N.  W.  57,  denying  right  to  classify  members  and  change  stipulated  premium: 
Hicks  v.  Northwestern  Aid  Asso.  117  Tenn.  214,  96  S.  W.  962,  holding  where  asso- 
ciation by  terms  of  policy  had  no  right  to  change  rate  unless  there  was  exhaustion 
of  mortuary  fund  or  an  unexpected  emergency  that  burden  of  showing  either  of 
these  causes  was  on  association. 
Classes  of  membership. 

Cited  in  People's  Mut.  Ben.  Soc.  v.  McKay,  141  Ind.  423,  39  N.  E.  231,  holding 
beneficiary  under  benefit  policy  bound  to  prove  what  proportion  of  fund  of  class 
applicable  to  its  payment:  Gray  v.  Supreme  Lodge,  K.  of  H.  118  Ind.  300,  20  N. 
E.  833,  holding  beneficiary  only  entitled  to  amount  of  benefit  of  class  to  which 
member  belonged,  provided  by  amended  by-laws. 


505  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  416 

Distinguished  in  Old  Wayne  Mut.  L.  Asso.  v.  Xordby,  122  Ind.  450,  24  N.  E. 
159,  holding  class  in  benefit  association  not  shown  to  be  divided  so  that  beneficiary 
must  look  to  that  subdivision  for  payment. 
Character    of   mutual    benefit    society. 

Cited  in  Grimes  v.  Northwestern  L.  of  H.  97  Iowa,  323,  64  N.  W.  806,  holding 
secret  mutual  benefit  society  a  life  insurance  company. 
Status  of  members. 

Cited  in  Leadlay  v.  McGregor,  11  Manitoba  L.  Rep.  20,  holding  member  of 
mutual  benefit  society  has  no  interest  in  fund  raised  or  to  be  raised,  but  merely 
a  power  to  appoint  an  object  to  receive  the  same,  which  power  must  be  exer- 
cised in  accordance  with  the  regulations  of  the  society. 
Intmrable    Interest. 

Cited  in  United  States  Mut.  Acci.  Asso.  v.  Hodgkin,  4  App.  D.  C.  524,  holding 
party  named  as  beneficiary  by  action  of  association  itself,  in  certificate  of  mutual 
benefit  society,  has  insurable  interest. 
Relief  under  pleadings. 

Cited  in  Mitchell  v.  Weaver,  118  Ind.  57,  10  Am.  St.  Rep.  104,  20  N.  E.  525, 
holding  that  recovery  must  be  on  cause  of  action  set  out  in  complaint  and  in  ac- 
cordance with  theory  on  which  it  proceeds;  Grand  Lodge. A.  O.  U.  W.  v.  Hall, 
37  Ind.  App.  372,  76  N.  E.  1029,  holding  that  party  must  plead  performance  by 
the  assured;  Grand  Lodge,  A.  O.  U.  W.  v.  Barwe,  38  Ind.  App.  311,  75  N.  E.  971, 
holding  complaint  in  question  sufficient. 
Proof  to  sustain  damages. 

Cited  in  Vandenberg  v.  Slagh,  150  Mich.  229,  114  N.  W.  72,  holding  that  to 
recover   substantial   damages   one   must   offer   evidence   from   which   loss   can   be 
computed  with  reasonable  certainty. 
Similarity  of  legal  principles  applicable  to  benefit  and  religions  societies. 

Cited  in  Ramsey  v.  Hicks,  44  Ind.  App.  504,  87  X.  E.  1091;  Bentle  v.  Ulay, 
46  Ind.  App.  670,  93  N.  E.  459, — holding  that  legal  principles  applicable  to  benefit 
societies  are  applicable  to  religious  societies. 

:j  L.  R.  A.  414,  FERRESS  v.  TAVEL,  87  Tenn.  386,  11  S.  W.  93. 
Notice    of   equities    to   bona    fide   purchaser    for   value. 

Cited  in  Buchanan  v.  Wren,  10  Tex.  Civ.  App.  566,  30  S.  W.  1077,  holding  prom- 
i^ory  note,  negotiable  in  form,  negotiable,  although  showing  it  was  given  for 
unexpired  term;  Merchants'  &  P.  Bank  v.  Penland,  101  Tenn.  448,  47  S.  W.  693, 
holding  knowledge  that  consideration  might  partially  fail  not  fatal  to  character 
of  bona  fide  holder  for  value  of  negotiable  note;  Bank  of  Sampson  v.  Hatcher, 
1,51  X.  C.  362,  134  Am.  St.  Rep.  989,  66  S.  E.  308,  holding  an  indorsement  "with- 
out recourse"  not  to  deprive  party  of  rights  as  bona  fide  holder. 

Cited  in  notes    (29  L.R.A.  (N.S.)    382)   on  circumstances  sufficient  to  put  pur- 
chaser of  negotiable  paper  on  inquiry;  (14  Am.  St.  Rep.  793)  on  notice  of  equities 
to  indorsers. 
Status  of  holder  of  promissory  note  in  payment  of  pre-existing  debt. 

Cited  in  Bank  of  Charleston  v.  Johnston,  105  Tenn.  530,  59  S.  W.  131,  and  Mar- 
tin v.  Citizens'  Bank  &  T.  Co.  94  Tenn.  180,  28  S.  W.  1097,  holding  one  taking 
note  in  payment  of  or  as  security  for  pre-existing  debt  not  a  bona  fide  holder. 

Cited  in  note  (4  Eng.  Rul.  Cas.  331)  on  taking  of  bills  and  notes  as  mere  col- 
lateral security  for  precedent  debt  as  taking  for  value. 

3  L.  R.  A.  416,  AT  WOOD  v.  DUMAS,  149  Mass.  167.  21  X.  E.  2.36. 

Sc-iri-  facias  against  trustee,  in  Atwood  v.  Wc-t  F."xli;i'-y  Co-operative  Bank, 
]o<;  Muss.  ]«;<;.  :u>  X.  E.  558. 


3  L.R.A.  416]  L.  R.  A.  CASES  AS  AUTHORITIES.  506 

Nature   of   co-operative    associations. 

Cited  in  Lindsay  v.  Arlington  Co-op.  Asso.  186  Mass.  374,  71  N.  E.  797,  holding 
a,  by-law  of  a  co-operative  association  providing  that  a  member  desiring  to  with- 
draw may  do  so  on  application  to  board  of  directors  is  valid. 
Co-operative   banks. 

Cited  in  Jewett  v.  West  Somerville  Co-operative  Bank,  173  Mass.  56,  73  Am. 
St.  Rep.  259,  52  N.  E.  1085,  holding  co-operative  bank  not  bound  by  unauthorized 
acceptance  of  order  by  its  treasurer;  Leahy  v.  National  Bldg.  &  L.  Asso.  100  Wis. 
565,  69  Am.  St.  Rep.  945,  76  N.  W.  625,  holding  member  of  mutual  profit  sharing 
.association  has  no  claim  to  any  specific  fund  of  the  association. 

Cited  in  note  (35  L.  R.  A.  302)  on  withdrawal  from  building  and  loan  associa- 
tions. 
•Stockholder's  interest  In  corporate  assets. 

Distinguished  in  Ellsworth  v.  Lyons,  104  C.  C.  A.  1,  181  Fed.  62,  holding  that 
preferred  stockholders  are  not  entitled,  in  preference  to  creditors,  to  proceeds  of 
insurance  on  secretary's  life,  taken  out  to  retire  preferred  stock. 
—  Garnishment. 

Cited  in  note  (18  L.R.A.(N.S.)  1159)  on  stockholder's  interest  in  corporation 
.as  subject  of  garnishment. 

-3  L.  R.  A.  417,  RUNGE  v.  FRANKLIN,  72  Tex.  585,  13  Am.  St.  Rep.  833,  10  S. 

W.  721. 
Privileged   communications    and    proceeding's. 

Cited  in  Sinclair  v.  Dalien,  73  Tex.  74,  11  S.  W.  147,  holding  mere  allegation 
of  publication  of  libelous  matter  sufficient  against  general  demurrer;  Cranfill  v. 
Hayden,  22  Tex.  Civ.  App.  663,  55  S.  W.  805,  holding  proceedings  of  general  Bap- 
tist Convention,  a  sovereign  body,  privileged;  McCord-Collins  Commerce  Co.  v. 
Levi,  21  Tex.  Civ.  App.  110,  50  S.  W.  606,  holding  no  damages  recoverable  for 
malicious  filing  of  civil  suit  unless  defendant's  property  or  person  is  wrongfully 
seized  or  injuriously  affected;  Abbott  v.  National  Bank  of  Commerce,  20  Wash. 
555,  56  Pac.  376,  holding  relevant  allegations  in  pleadings  filed  in  proper  court 
privileged,  though  false  or  malicious;  Nowotny  v.  Grona,  44  Tex.  Civ.  App.  327, 
"98  S.  W.  416,  holding  that  merely  bringing  an  unfounded  suit  against  a  sheriff 
is  not  actionable;  Kemper  v.  Fort,  219  Pa.  91,  13  L.R.A.(N.S.)  825,  123  Am.  St. 
Rep.  623,  67  Atl.  991,  12  A.  &  E.  Ann.  Gas.  1022,  holding  an  allegation  of  ille- 
gitimacy in  a  pleading  to  be  privileged;  Baggett  v.  Brady,  154  N.  C.  344,  70 
:S.  E.  618,  holding  that  affidavits  as  to  character  of  applicant,  used  on  application 
for  admission  to  bar,  are  privileged. 

Cited  in  footnote  to  Niseen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged. 

Cited  in  notes   (104  Am.  St.  Rep.  116,  119,  123,  126)   on  what  libelous  state- 
ments are  privileged;   (323  Am.  St.  Rep.  633,  641)  on  liability  for  libel  or  slander 
•in  course  of  judicial  proceedings. 
Libelous   publications. 

Cited  in  footnote  to  Woodruff  v.  Bradstreet  Co.  5  L.  R.  A.  555,  which  holds 
publication  that  judgment  recovered  against  merchant  or  trader  libelous. 

Cited  in  notes  (9  L.  R.  A.  621)  on  definition  of  libel;  (22  L.  R.  A.  649)  on  libel 
by  defamatory  words  in  pleading;  (15  Am.  St.  Rep.  362)  on  newspaper  libel. 

3  L.  R.  A.  424,  INSURANCE  CO.  OF  N.  A.  v.  EASTON,  73  Tex.  167,  11  S.  W.  180. 
^Limitation    of    carrier's    liability. 

Cited  in  footnotes  to  Chicago  &  N.  W.  R.  Co.  v.  Chapman,  8  L.  R.  A.  508,  which 


507  L.  R.  A.  CASES  AS  AUTHORITIES  [3  L.R.A.  430 

holds  carrier  cannot  limit  liability  for  gross  negligence  or  wilful  misconduct; 
Hull  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  5  L.  R.  A.  587,  which  requires  carrier 
relying  on  contract  limiting  liability,  to  show  freedom  from  negligence. 

Cited  in  notes    (6  L.  R.  A.  854)    on  carrier  stipulating  against  liability  from 
negligence  of  itself,  its  servants,  or  its  agents;    (7  L.  R.  A.  215,  12  L.  R.  A.  800) 
on  carrier  restricting  liability  by  contract;    (10  L.  R.  A.  420)   on  restriction  on 
carrier's  power  to  limit  liability  by  contract. 
Act   of  God  as   defense. 

Cited  in  note  (11  L.  R.  A.  616)  on  act  of  God  must  be  proximate,  not  remote, 
cause  of  loss. 
Subrogation    as    to    insurance. 

Cited  in  Lyons  v.  Boston  &  L.  R.  Co.  181  Mass.  557,  64  N.  E.  404  (dissenting 
opinion),  majority  sustaining  statute  giving  railroad  company  held  liable  for 
fires  set  by  engines,  benefit  of  policy  issued  before  its  enactment. 

Cited  in  footnotes  to  New  Hampshire  F.  Ins.  Co.  v.  National  L.  Ins.  Co.  57  L. 
R.  A.  692,  which  denies  right  of  insurer,  subrogated  to  mortgagee's  claims  against 
mortgagor,  to  insist  on  charging  mortgagee,  retaining  more  than  its  share  from 
other  policy,  with  amount  paid  to  mortgagor;  Svea  Assur.  Co.  v.  Packham,  52 
L.  R.  A.  95,  which  holds  settlement  with  insured  with  approval  of  majority  of 
insurers  entitled  to  be  subrogated,  binding  on  nonapproving  insurer;  United 
States  Casualty  Co.  v.  Bagley,  55  L.  R.  A.  616,  which  holds  landlord  liable  to 
insurer  of  tenant  subrogated  to  his  rights,  for  loss  from  defective  condition  of  au- 
tomatic fire  apparatus;  Packham  v.  German  F.  Ins.  Co.  50  L.  R.  A.  828,  which 
holds  right  against  insurer  under  policy  providing  for  subrogation  cut  off  by 
destroying  right  of  subrogation;  Mason  v.  Marine  Ins.  Co.  54  L.  R.  A.  700,  which 
holds  insurer  receiving  abandonment  of  vessel  injured  by  collision  entitled  to 
amount  awarded  against  vessel  in  fault  for  loss  of  prospective  earnings;  Ander- 
son v.  Miller,  31  L.  R.  A.  604,  which  holds  owner's  right  to  recover  for  damage  by 
fire  unaffected  by  having  received  full  payment  for  loss  by  insurance. 

Cited  in  note  (29  L.R.A. (N.S.)  7U3)  as  to  effect  of  discharge  of  person  primarily 
liable  for  loss  or  of  contractual  provision  giving  him  benefit  of  insurance,  upon 
insured's  right  of  action  against  insurer. 

3  L.  R.  A.  430,  BROWN  v.  STOERKEL,  74  Mich.  269,  41  N.  W.  921. 
Xatnre  of  an  unincorporated  association. 

Cited  in  Brower  v.  Crimmins,  67  Misc.  71,  121  N.  Y.  Supp.  648,  holding  that  an 
unincorporated  association  cannot  have  an  agent;  St.  Paul  Typothetae  v.  St. 
Paul  Bookbinders'  Union  No.  37,  94  Minn.  360,  102  N.  W.  725,  3  A.  &  E.  Ann. 
Cas.  695,  holding  a  bookbinders'  union  not  a  business  concern;  L.  D.  Willcutt  & 
Sons  Co.  v.  Driscoll,  200  Mass.  127,  23  L.R.A.(N.S.)  1247,  85  N.  E.  897,  holding 
that  a  labor  union  cannot  enforce  a  fine  against  its  members  to  coerce  them  to 
strike  to  the  injury  of  one  seeking  to  employ  them. 

Cited  in  notes  (17  L.R.A.  204,  205)  on  power  and  authority  of  voluntary  asso- 
ciations;  (7  Am.  St.  Rep.  161)  on  legal  nature  of  voluntary  associations;   (7  Am. 
St.  Rep.  169)  on  jurisdiction  of  courts  over  voluntary  associations;   (19  Eng.  Rul. 
Cas.  403 )  on  members  of  clubs,  associations  and  societies  as  partners. 
Property    rii-.ht*   in   social   clnb   or  associations. 

Cited  in  Textile  Workers  Union  No.  1  v.  Barrett,  19  R.  I.  664,  36  Atl.  5,  holding 
member  of  voluntary  social  club  has  no  ownership  in  its  property;  Blue  Mountain 
Forest  Asso.  v.  Borrowe,  71  N.  H.  73,  51  Atl.  670,  holding  by-law  of  park  asso- 
ciation providing  that  unpaid  assessments  shall  be  cl.-rge  on  delinquent  interest 
valid  and  binding;  Kalbitzer  v.  Goodhue,  52  W.  Va.  440,  44  S.  E.  264,  holding 


?,  L.R.A.  430]  L.  R.  A.  CASES  AS  AUTHORITIES.  508 

consent  of  every  member  of  voluntary  association  necessary  as  to  disposition  oi 
funds,  where  laws  make  no  provision  as  to  majority  rule. 
Dissolution    of    benevolent    association. 

Cited  in  footnote  to  Industrial  Trust  Co.  v.  Green,  17  L.  R.  A.  202,  which  holds 
illegal  deposition  of  president  not  ground  for  subsequent  dissolution  of  benevolent 
association. 
Constitution  and   by-laws  as  contract. 

Cited  in  McLaughlin  v.  Wall,  86  Kan.  49,  119  Pac.  541,  holding  that  Constitu- 
tion of  voluntary  benevolent  association  is  contract,  enforceable  by  courts;  J.  P. 
Lamb  &  Co.  v.  Merchants'  Nat.  Mut.  F.  Ins.  Co.  18  N.  D.  264,  119  N.  W.  1048, 
holding  that  member  of  mutual  fire  insurance  company  has  notice  of  and  is  bound 
by  its  by-laws. 

3  L.  R.  A.  434,  LOUISVILLE,  N.  A.  A  C.  R.  CO.  v.  SNIDER,  117  Ind.  435,  19 

Am.  St.  Rep.  60,  20  N.  E.  284. 

Admissibility   of   statement   of  injured   person   to   physician   as   to   bodily 
condition. 

Cited  in  Union  P.  R.  Co.  v.  Novak,  9  C.  C.  A.  638,  15  U.  S.  App.  400,  61  Fed. 
582,  holding  that  physician,  in  describing  physical  injuries,  may  testify  what  pa- 
tient said  as  to  bodily  condition;  Indianapolis  &  M.  R.  Transit  Co.  v.  Reeder,  37 
Ind.  App.  264,  76  N.  E.  816,  holding  evidence  by  a  physician  of  declarations  of 
patient  of  pain  during  treatment  to  be  admissible;  Federal  Betterment  Co.  v. 
Reeves,  73  Kan.  119,  4  L.R.A.(N.S.)  466,  84  Pac.  560  (dissenting  opinion),  on  the 
competency  of  testimony  of  a  physician. 

Distinguished  in  Holloway  v.  Kansas  City,  184  Mo.  33,  82  S.  W.  89.  holding  that 
a  physician  cannot  give  an  opinion  based  on  a  history  of  case  given  by  party 
calling  him. 
Opinions    of   experts. 

Cited  in  note  (4  L.  R.  A.  555)  on  opinions  of  experts. 
Proximate   cause   of   injury. 

Cited  in  Montgomery  &  E.  R.  Co.  v.  Mallette,  92  Ala.  215,  9  So.  363,  and 
Brunker  v.  Cummins,  133  Ind.  450,  32  N.  E.  732,  holding  aggravation  of  previous 
injury  through  negligence  of  wrongdoer  entitles  injured  person  to  recover  dam- 
ages; Louisville,  N.  A.  &  C.  R.  Co.  v.  Nitsche,  126  Ind.  233,  9  L.  K.  A.  752,  22  Am. 
St.  Rep.  582,  26  N.  E.  51,  holding  carrier  negligently  setting  out  fire  on  right  of 
way  liable  for  all  damages  caused  by  spreading;  Scherer  v.  Schlabeig,  18  X.  D. 
437,  24  L.R.A.(N.S.)  529,  122  X.  W.  1000  (dissenting  opinion),  on  liability  of 
carrier  of  passenger  where  its  negligence  co-operates  with  the  negligence  of  an- 
other in  producing  an  injury. 

Cited  in  footnotes  to  Maguire  v.  Sheehan,  59  L.R.A.  496.  which  sustains  liabil- 
ity for  entire  injury  through  negligence,  though  shock  brought  on  delirium  tre- 
mens,  retarding  recovery;  Chicago  City  R.  Co.  v.  Saxby,  68  L.R.A.  164,  which 
sustains  right  of  injured  person  to  recover  for  tuberculous  condition  of  knee  re- 
sulting from  injury,  notwithstanding  fact  that  tuberculosis  was  organic  and 
mistakes  in  treatment. 

Cited  in  note  (16  L.  R.  A.  268)   on  effect  of  previous  disease  of  person  injured, 
on,  liability  for  causing  injury. 
Contributory    negligence. 

Cited  in  Louisville,  X.  A.  &  C.  R.  Co.  v.  Miller,  141  Ind.  546,  37  X.  E.  34?, 
holding,  as  matter  of  law,  person  sitting  in  passenger  car,  hurt  by  derailing 
thereof,  not  guilty  of  contributory  negligence;  Indianapolis  Traction  &  Terminal 
Co.  v.  Beckman,  40  Ind.  App.  103,  81  X.  E.  82,  holding  where  a  passenger  is  in- 


509  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  435 

jured  while  in  his  proper  place  in  car  that  question  of  contributory  negligence 

•cannot  arise. 

Presumption   of   ueg-ligrence    from    injury   to   passenger. 

Cited  in  Terre  Haute  &  I.  R,  Co.  v.  Sheeks,  155  Ind.  95,  56  N.  E.  434,  and 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Hendricks,  128  Ind.  465,  28  N.  E.  58,  holding 
burden  on  carrier  to  remove  presumption  of  negligence  arising  from  injury  to 
passenger. 

Cited  in  notes  (15  L.R.A.  36)  on  presumption  of  negligence  from  occurrence 
of  accidents;  (20  Am.  St.  Rep.  491,  492)  on  accident  as  evidence  of  negligence; 
(113  Am.  St.  Rep.  987)  on  presumption  of  negligence  from  happening  of  accident 
causing  personal  injuries. 


Cited  in  Citizens  Street  R.  Co.  v.  Hoffbauer,  23  Ind.  App.  620,  56  N.  E.  54, 
holding  street  car  company  bound  to  use  highest  degree  of  care  while  running 
car  on  wrong  track;  Kentucky  &  I.  Bridge  Co.  v.  Quinkert,  2  Ind.  App.  248,  28 
N.  E.  338,  and  Romine  v.  Evansville  &  T.  H.  R.  Co.  24  Ind.  App.  234,  56  N.  E. 
245,  holding  common  carriers  responsible  for  slightest  neglect  causing  injury  to 
passengers;  Montgomery  &  E.  R.  Co.  v.  Mallette,  92  Ala.  215,  9  So.  363;  Ham- 
mond, W.  &  E.  C.  Electric  R.  Co.  v.  Spyzchalski,  17  Ind.  App.  12,  46  N.  E.  47; 
Prothero  v.  Citizens'  Street  R.  Co.  134  Ind.  439,  33  N.  E.  765, — holding  that 
common  carriers  in  transporting  passengers  must  exercise  highest  care,  diligence, 
vigilance,  and  skill ;  Metropolitan  Street  R.  Co.  v.  Hanson,  67  Kan.  259,  72  Pac. 
773,  holding  absence  of  conductor  to  open  and  shut  doors  of  station  on  elevated 
line,  negligence  warranting  recovery  for  injuries  due  to  doors  striking  passenger; 
Montgomery  &  E.  R.  Co.  v.  Mallette,  92  Ala.  215,  9  So.  363,  holding  that  the 
highest  degree  of  care,  diligence  and  skill  known  to  careful,  diligent  and  skilful 
persons  engaged  in  that  business  is  the  degree  of  care  required;  Crump  v.  Davis, 
33  Ind.  App.  91,  70  N.  E.  886,  holding  that  carrier  must  use  highest  practical 
<are;  Alabama  G.  S.  R.  Co.  v.  Hill,  93  Ala.  520,  30  Am.  St.  Rep.  65,  9  So.  722, 
holding  carrier  liable  for  slightest  negligence;  Indiana  Union  Traction  Co.  v. 
^Scribner,  47  Ind.  App.  640,  93  N.  E.  1014,  holding  correct,  instruction  that  carrier 
must  thoroughly  examine  and  test  its  vehicles. 

Cited  in  notes  (29  Am.  St.  Rep.  382)  on  degree  of  skill  required  of  carrier  of 
passengers;  (5  Eng.  Rul.  Cas.  462)  on  extent  of  duty  to  secure  safety  of  passen- 
gers. 

3  L.  R.  A.  435,  LOUISVILLE,  N.  A.  &  C.  R.  CO.  v.  BONEY,  117  Ind.  501,  20  N. 

E.  432. 
l.icns  on,  and  sales  of,  railroads. 

Cited  in  Bloxham  v.  Florida  C.  &  P.  R.  Co.  35  Fla.  728,  17  So.  902,  holding  rail- 
i#ad  not  exempt  from  taxation  if  its  predecessor  not  exempt;  Western  U.  Teleg 
Co.  v.  Indiana.  165  U.  S.  309,  41  L.  ed.  727,  17  Sup.  Ct.  Rep.  345,  holding  act 
valid  imposing  50  per  cent  penalty  on  telegraph  company  for  nonpayment  of 
taxes:  Lake  Erie  &  W.  R.  Co.  v.  Bouker,  9  Ind.  App.  433,  36  N.  E.  864,  holding 
personal  judgment  might  be  had  against  railroad  to  enforce  sewer  assessment 
liens;  Indianapolis  &  V.  R.  Co.  v.  Capitol  Paving  &  Constr.  Co.  24  Ind.  App.  117, 
54  X.  E.  1076.  holding  railroad  right  of  way  in  street  not  assessable  for  local 
improvement  to  be  assessed  on  property  fronting  or  abutting  on  street;  Louisville, 
N.  A.  &  C.  R.  Co.  v.  State,  8  Ind.  App.  378,  35  X.  E.  916,  holding  railroad  cannot 
be  sold  for  taxes ;  Western  U.  Teleg.  Co.  v.  State,  146  Ind.  60,  44  N.  E.  793,  hold- 
ing property  of  telegraph  company  cannot  be  sold  for  taxes,  but  receiver  might  be 
appointed;  Louisville,  X.  A.  &  C.  R.  Co.  v.  State,  122  Ind.  445,  24  N.  E.  350, 
holding  act  giving  lien  on  railroad  for  ditch  assessments  does  not  permit  sale  of 
.body  of  road;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Ottumwa,  112  Iowa,  319,  51  L.  R.  A. 


3  L.R.A.  435]  L.  R.  A.  CASES  AS  AUTHORITIES.  510 

771,  83  N.  W.  1074  (dissenting  opinion),  majority  holding  cost  of  paving  and 
curbing  public  highway  cannot  be  assessed  against  railroad  right  of  way;  Chi- 
cago &  N.  W.  R.  Co.  v.  Ellson,  113  Mich.  35,  71  X.  W.  324,  holding  coal  of  rail- 
road could  be  seized  in  payment  of  tax;  People  ex  rel.  Manhattan  R.  Co.  v.  Bar- 
ker, 165  N.  Y.  330.  59  N.  E.  151  (dissenting  opinion),  majority  holding  that  as- 
sessment against  elevated  railway  should  not  have  been  vacated  entirely;  Farmers 
Loan  &  T.  Co.  v.  Canada  &  St.  L.  R.  Co.  127  Ind.  258,  11  L.  R.  A.  744,  26  X.  E. 
784,  holding  mechanics'  lien  can  be  acquired  on  part  of  railroad;  Adams  v. 
Grand  Island  &  W.  C.  R.  Co.  12  S.  D.  427,  81  N.  W.  960,  holding  contractor  can 
file  his  lien  upon  the  part  of  the  railroad  constructed  by  him ;  Midland  R.  Co. 
v.  Wilcox,  122  Ind.  95,  23  X.  E.  506,  holding  lien  given  upon  railroad  meant  to  be 
attached  to  whole  line;  Connor  v.  Tennessee  C.  R.  Co.  54  L.  R.  A.  695,  48  C.  C.  A. 
740,  109  Fed.  940,  holding  sale  of  part  of  railroad  roadbed  apart  from  franchise, 
under  foreclosure  of  contractor's  lien,  ineffective;  State  ex  rel.  Wood  v.  Harey 
121  Ind.  309,  23  N.  E.  145,  holding  franchise  passes  with  sale  of  road  on  execu- 
tion; Chicago  &  I.  Coal  R.  Co.  v.  Hall,  135  Ind.  99,  23  L.  R.  A.  237,  34  X.  E.  704, 
holding  that  damages  lie  against  successor  of  a  railroad  taking  land;  Wall  v, 
Xorfolk  &  W.  R.  Co.  52  W.  Va.  489,  64  L.  R.  A.  506,  94  Am.  St.  Rep.  948,  44  S. 
E.  294,  holding  loaded  freight  cars  used  in  interstate  commerce  not  subject  to  at- 
tachment; Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Fish,  158  Ind.  528,  63  N.  E.  454, 
holding  that  railroad  will  not  be  sold  piecemeal  to  satisfy  lien  for  street  im- 
provements; Pere  Marquette  R.  Co.  v.  Baertz.  36  Ind.  App.  420.  74  X.  E.  51,  hold- 
ing that  a  railroad  cannot  be  sold  in  parts  to  satisfy  a  labor  lien;  Southern  Cali- 
fornia R.  Co.  v.  Workman,  146  Cal.  85,  79  Pac.  586,  2  A.  &  E.  Ann.  Cas.  583, 
holding  that  the  right  of  way  of  a  railroad  cannot  be  sold  on  execution  or  for  a 
street  assessment;  Pere  Marquette  R.  Co.  v.  Smith,  36  Ind.  App.  441,  74  X.  E. 
545,  holding  that  a  personal  judgment  is  to  be  rendered  to  satisfy  the  lien  of  a 
laborer  where  road  is  practically  completed. 

Cited  in  note  (20  L.  R.  A.  738)  on  execution  or  judicial  sale  of  corporate  fran- 
chise or  property  necessary  to  its  enjoyment. 
Liability  of  corporation  for  debts  of  predecessor. 

Cited  in  Xew  York  Security  &  T.  Co.  v.  Louisville,  E.  &  St.  L.  Con?ol.  R.  Co. 
102  Fed.  393,  holding  that  consolidated  railroad  assumed  mortgage  indebtedness 
of  constituent  company;  Berthold  v.  Holladay-Klotz  Land  &  Lumber  Co.  91  Mo. 
App.  240,  holding  that  judgment  creditor  of  corporation  can  maintain  creditor's 
bill  against  another  corporation  acquiring  former's  assets;  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  v.  Prewitt,  134  Ind.  559,  33  N.  E.  367,  holding  consolidated  railway 
subject  to  liabilities  of  constituent  roads;  Louisville  Trust  Co.  v.  Louisville.  X.  A. 
&  C.  R.  Co.  22  C.  C.  A.  389,  43  U.  S.  App.  550,  75  Fed.  443,  holding  that  new 
railroad  corporation  after  consolidation  has  attributes  of  old;  Lake  Shore  &  M. 
S.  R.  Co.  v.  Mclntosh,  140  Ind.  269,  38  N.  E.  476^  holding  present  owner  of 
railroad  liable  for  negligent  construction  of  crossing  by  prior  owner;  Berry  v.  Kan- 
sas City,  Ft.  S.  &  M.  R.  Co.  52  Kan.  775,  39  Am.  St.  Rep.  381,  36  Pac.  724,  holding 
consolidated  railroad  liable  for  tort  of  constituent  company;  Morrison  v.  American 
Snuff  Co.  79  Miss.  338,  89  Am.  St.  Rep.  598,  30  So.  723,  holding  consolidated 
manufacturing  company  liable  for  debt  of  constituent  company  to  salesman :  Rand 
v.  Wright,  141  Ind.  236,  39  N.  E.  447.  holding  that  partners  in  new  firm  assumed 
liabilities  of  old;  Citizens'  Street  R.  Co.  v.  Robbins,  144  Ind.  678,  42  N  .E.  916, 
holding  that  pleading  did  not  disclose  assumption  of  debt;  Longview  v.  Craw- 
fordsville,  164  Ind.  126,  68  L.R.A.  626,  73  X.  E.  78;  3  A.  &  E.  Ann.  Cas.  496, 
holding  thai  where  a  new  corporation  is  substituted  for  the  original  company 
that  the  new  corporation  is  liable  on  liabilities  of  the  old  company;  Atlantic 
&  B.  R.  Co.  v.  Johnson,  127  Ga.  396,  11  L.R.A.  (X.S.)  1119,  56  S.  E.  482,  holding 


5H  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  440 

where  two  corporations  consolidate  and  one  goes  entirely  out  of  existence  and 
no  arrangements  are  made  as  to  liabilities  that  consolidated  corporation  is  liable 
for  all  liabilities  of  corporation  absorbed. 

Cited  in  footnote  to  Busell  Trimmer  Co.  v.  Coburn,  69  L.R.A.  821,  which  holds 
claim  by  president  manager  of  corporation  for  subsequent  salary  not  covered  by 
covenant  by  purchaser  of  its  business  and  effects  to  indemnify  it  against  existing 
contracts  and  engagements. 

Cited  in  notes  (5  L.  R.  A.  727)  on  succession  of  consolidated  corporation  to 
rights  and  obligations  of  its  constituents;  (23  L.  R.  A.  231)  on  liability  of  consol- 
idated railroad  company  for  debts  of  its  predecessor;  (52  L.  R.  A.  391)  on  right 
of  corporations  to  consolidate;  (5  L.  R.  A.  726)  on  aivthority  conferred  on  rail- 
roads to  consolidate;  (11  L.R.A.(N.S.)  1120,  1121)  on  effect  of  consolidation, 
merger,  or  absorption  of  corporation,  on  unsecured  liabilities,  in  absence  of  statu- 
tory or  contract  provision;  (59  Am.  St.  Rep.  554,  555)  as  to  when  corporation 
becomes  liable  for  debts  of  preceding  corporation  or  partnership;  (89  Am.  St. 
Rep.  624)  on  succession  of  consolidated  corporation  to  property,  powers,  privileges, 
franchises,  etc.,  of  constituent  companies;  (89  Am.  St.  Rep.  638)  on  liability  of 
consolidated  company  for  obligations  of  constituent  companies  prior  to  con- 
solidation. 

Distinguished  in  Miles  Lamp  Chimney  Co.  v.  Erie  F.  Ins.  Co.  164  Ind.  183,  73 
X.  E.  107,  holding  where  old  corporation  still  exists  and  is  not  merged  into  the 
new  that  property  rights  of  old  do  not  by  mere  fact  of  a  change  go  to  the  new. 
Grant  of  public  property  without  authority. 

Cited  in  Collett  v.  Vanderburgh  County,  119  Ind.  31,  4  L.  R.  A.  324,  21  N.  E. 
329,   holding   public   property   of   corporation   cannot   be   granted   away  without 
authority,  by  those  holding  it  in  trust. 
Federal    jurisdiction    of   consolidated   railways. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Louisville  Trust  Co.  174  U.  S.  566,  43  L. 
ed.  1088,  19  Sup.  Ct.  Rep.  817,  holding  that  consolidation  of  railroad  of  one  state 
with  railroad  of  another  does  not  affect  Federal  jurisdiction;  Grenell  v.  Ferry, 
110  Mich.  264,  68  N.  W.  144,  holding  that  suit  in  equity  is  controlled  by  situa- 
tion at  time  of  filing  bill. 
Constitutionality  of  statutes. 

Cited  in  Ex  parte  Walsh,  59  Tex.  Crim.  Rep.  419,  129  S.  W.  118,  upholding 
statute  prohibiting  betting  on  horse  races. 
Xatnre   of   railroad   property. 

Cited  in  note  (66  L.R.A.  38,  41)  on  railroad  right  of  way  and  superstructure  as 
realty. 

3  L.  R.  A.  440,  LEWARK  v.  CARTER,  117  Ind.  206,  10  Am.  St.  Rep.  40,  20  N.  E. 

119. 
Rule   caveat   emptor  as   applied   in    judicial   sales. 

Cited  in  Stearns  v.  Edson,  63  Vt.  263,  25  Am.  St.  Rep.  758,  22  Atl.  420,  and 
Norton  v.  Nebraska  Loan  &  T.  Co.  35  Neb.  470,  18  L.  R.  A.  89,  37  Am.  St.  Rep. 
441,  53  N.  W.  481,  holding  rule  of  caveat  emptor  applies  in  all  force  to  all  ju- 
dicial sales. 

Cited  in  notes  (18  L.R.A.  88)  on  effect  of  misrepresentation  to  purchasers  by 
sheriff  on  judicial  sale;  (12  Eng.  Rul.  Cas.  296;  12  Am.  St.  Rep.  36;  13  Am.  St. 
Rep.  431;  14  Am.  St.  Rep.  407)  on  fraudulent  representations. 

Disapproved  in  Dresser  v.  Kronberg, .  108  Me.  426,  36  L.R.A.(N.S-)  1222,  81 
Atl.  487,  holding  that  bona  fide  purchaser  at  execution  sale  can  recover  from 


A  L.R.A.  440]  L.  R.  A.  CASES  AS  AUTHORITIES.  512 

judgment  creditor  for  money  had  and  received,  where  property  sold  belonged  to 

third  person. 

False   representations   made   in   good    faith. 

Cited  in  Marley  v.  National  Bldg.  Loan  &  Sav.  Asso.  No.  2,  28  Ind.  App.  371, 

02  N.   E.    1023,   dismissing  complaint   to  cancel  bond  and   mortgage   because  of 
defendant's  representations,  not  alleging  mistake  or  fraud. 

Amendment   to  pleading's. 

Cited  in  Matthews  v.  Rund,  27  Ind.  App.  643,  62  N.  E.  90,  holding  it  error  to 
permit  amendment  after  submission,  changing  issues. 

Distinguished  in  Thomas  v.  Hawkins,  13  Ind.  App.  331,  40  X.  E.  813   (dissent- 
ing opinion),  majority  holding  that  after  demurrer  it  is  within  court's  discre- 
tion to  refuse  amendment  departing  from  original  cause. 
Variance. 

Cited  in  Anderson  v.  Chilson,  8  S.  D.  69,  65  N.  W.  435,  holding  that  pleading 
for  equitable  relief  will  not  support  judgment  for  damages  for  breach  of  contract. 

3  L.  R.  A.  443,  PAUL  v.  TRAVELERS  INS.  CO.  112  N.  Y.  472,  8  Am.  St.  Rep. 

758,  20  N.  E.  347. 
Exceptions  from  liability  on  accident   policy. 

Cited  in  Fidelity  &  C.  Co.  v.  Waterman,  161  111.  634,  32  L.  R.  A.  655,  44  N.  E. 
283,  Affirming  59  111.  App.  299;  Lowenstein  v.  Fidelity  &  C.  Co.  88  Fed.  475,  Af- 
firmed in  46  L.  R.  A.  452,  38  C.  C.  A.  31,  97  Fed.  18;  Menneiley  v.  Employers' 
Liability  Assur.  Corp.  148  N.  Y.  599,  31  L.  R.  A.  687,  51  Am.  St.  Rep.  716,  43  X. 
E.  54,  Reversing  72  Hun,  478,  25  N.  Y.  Supp.  230, — holding  death  from  involun- 
tary inhalation  of  illuminating  gas  accidentally  escaping  into  bedroom,  covered 
by  policy  in  spite  of  its  express  provision  against  liability  in  case  of  ''inhaling 
gas;"  Pickett  v.  Pacific  Mut.  L.  Ins.  Co.  144  Pa.  91,  13  L.  R.  A.  662,  27  Am. 
St.  Rep.  618,  22  Atl.  871,  28  W.  X.  C.  456,  holding  exception  against  injury  by 
"inhalation  of  gas"  does  not  prevent  liability,  where  death  due  to  breathing  gas 
in  shallow  well  while  at  work ;  Metropolitan  Acci.  Asso.  v.  Froiland,  59  111.  App. 
526,  and  Travelers'  Ins.  Co.  v.  Dunlap,  160  111.  645,  52  Am.  St.  Rep.  355,  43  X. 
E.  765,  Affirming  59  111.  App.  518,  holding  provision  for  nonliability  in  case  of 
"taking  poison"  by  insured  not  cover  accidental  taking;  Railway  Officials  &  E. 
Acci.  Asso.  v.  Drummond,  56  Xeb.  241,  76  N.  W.  562,  holding  exemption  from 
liability  in  case  of  death  resulting  from  intentional  acts  by  third  person  does  not 
cover  injuries  by  robber,  if  unintentional;  Kasten  v.  Interstate  Casualty  Co.  99 
Wis.  77,  40  L.  R.  A.  653,  74  X.  W.  534,  holding  exemption  in  case  of  poison 
absorption  relieves  insurer  from  liability  for  death  from  absorption  of  septic  poi- 
son in  course  of  dentistry  practice;  Gresham  v.  Equitable  Acci.  Ins.  Co.  87  Ga. 
498,  13  L.  R.  A.  839,  27  Am.  St.  Rep.  263,  13  S.  E.  752,  holding  death  from  vol- 
untary personal  encounter  not  covered  by  policy  exempting  from  liability  for  in- 
juries received  in  fighting:  Preferred  Acci.  Ins.  Co.  v.  Robinson,  45  Fla.  533,  61 
L.R.A.  147,  33  So.  1005,  holding  eye's  absorption  of  poison  within  exceptions  as  to 
liability;  Appel  v.  .Etna  L.  Ins.  Co.  86  App.  Div.  87,  83  X.  Y.  Supp.  238,  holding 
death  from  appendicitis  caused  by  contact  of  appendix  with  muscle  while  riding 
bicycle,  not  within  policy;  Travelers'  Ins.  Co.  v.  Ayers,  217  111.  392.  2  L.R.A. 
(X.S.)  170,  75  X.  E.  506,  holding  death  by  asphyxiation  from  accidental  inhala- 
tion of  gas  while  asleep  not  within  the  provisions  of  policy  exempting  the  insurer 
from  liability  for  death  resulting  directly  or  indirectly  from  any  gas  or  vapor; 
Sullivan  v.  Modern  Brotherhood,  167  Mich.  532,  —  L.R.A.(X.S.)  — ,  133  X.  W. 
486,  holding  that  gonorrheal  infection  of  eye  from  splashing  of  water  in  washing 
clothes  was  accident. 

Cited  in  footnotes  to  Travelers  Ins.  Co.  v.  McCarthy,  11  L.  R.  A.  297,  which 


513  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  443 

holds  accident  insurance  company  not  liable  for  intentional  injuries  by  third 
person;  Shevlin  v.  American  Mut.  Acci.  Asso.  36  L.  R.  A.  52,  which  holds  jump 
ing  in  dark  from  moving  freight  train  exposure  to  unnecessary  danger;  Follis 
v.  United  States  Mut.  Acci.  Asso.  28  L.  R.  A.  78,  which  holds  attempt  to  cross 
bridge  on  ties  voluntary  exposure  to  danger;  Dozier  v.  Fidelity  &  C.  Co.  13  L. 
R.  A.  114,  which  holds  sunstroke  not  bodily  injury;  Duran  v.  Standard  Life 
&  Acci.  Ins.  Co.  13  L.  R.  A.  637,  which  holds  injury  by  slipping  while  hunting 
on  Sunday  not  covered  by  insurance  policy. 

Cited  in  notes  (6  L.  R.  A.  496)  on  death  of  insured  by  crime;  (9  L.  R.  A.  685) 
on  restrictions  as  to  occupation  and  employment  of  insured;  (3  L.  R.  A.  487)  on 
stipulation  against  suicide  or  intentional  self-destruction;  (13  L.  R.  A.  661)  on 
death  of  insured  from  inhaling  gas;  (1  L.R.A.(N.S.)  423)  on  injury  to  insured 
by  own  act  while  asleep  as  an  accident. 

Distinguished  in  Meehan  v.  Traders  &  Travelers  Acci.  Co.  34  Misc.  160,  68  X. 
Y.  Supp.  821,  holding  exemption  from  liability  in  case  of  "contact  with  poison- 
ous substances"  covers  injury  from  carbolic  acid  thrown  in  insured's  face  by  third 
person;  McGlother  v.  Provident  Mut.  Acci.  Co.  32  C.  C.  A.  320,  60  U.  S.  App.  705. 
89  Fed.  687,  690,  holding  exemption  in  case  of  "death  resulting  from  poison'' 
covers  death  caused  by  accidental  and  unintentional  drinking  of  poison;  Early  v. 
Standard  Life  &  Acci.  Ins.  Co.  113  Mich.  62,  67  Am.  St.  Rep.  445,  71  N.  W.  500. 
holding  exception  of  "death  by  poison"  covers  death  from  poison  administered  by 
druggist  through  mistake;  Porter  v.  Preferred  Acci.  Ins.  Co.  109  App.  Div.  105. 
95  X.  Y.  Supp.  682,  holding  policy  provides  against  voluntary  or  involuntary 
inhaling  of  gas,  company  is  not  liable  for  death  caused  by  involuntary  inhaling 
of  gas  in  a  hotel. 

Disapproved  in  Richardson  v.  Travelers'  Ins.  Co.  46  Fed.  844,  holding  death 
from  inhaling  illuminating  gas,  whether  accidental  or  intentional,  within  exemp- 
tion from  liability  where  injury  results  from  "inhaling  gas;"  Preferred  Acci.  Ins. 
Co.  v.  Robinson,  45  Fla.  533,  61  L.R.A.  147,  33  So.  1005,  3  A.  &  E.  Ann.  Cas.  931, 
holding  injury  to  eye  by  contact  with  poisoning  not  covered  by  a  policy  providing 
no  recovery  where  injury  occurred  by  poison. 
''Accidental"  death  of  inttnred. 

Cited  in  Tucker  v.  Mutual  Ben.  Life  Co.  50  Hun,  53,  4  N.  Y.  Supp.  505,  holding 
death  by  drowning  in  storm  through  capsizing  of  rowboat  accidental ;  Wehle  v. 
United  States  Mut.  Acci.  Asso.  153  N.  Y.  122,  60  Am.  St.  Rep.  598,  47  X.  E.  35, 
holding  death  by  drowning  while  bathing  accidental;  Healey  v.  Mutual  Acci. 
Asso.  133  111.  563,  9  L.  R.  A.  373,  23  Am.  St.  Rep.  637,  25  X.  E.  52,  holding  death 
from  accidentally  drinking  poison  covered  by  policy  insuring  against  death  by 
"external,  violent,  and  accidental  means;"  American  Acci.  Co.  v.  Reigart,  94  Ky. 
551,  21  L.  R.  A.  652,  42  Am.  St.  Rep.  374,  23  S.  W.  191,  holding  death  resulting 
from  lodgment  of  food  in  windpipe  while  eating  accidental ;  Pickett  v.  Pacific 
Mut.  L.  Ins.  Co.  144  Pa.  91,  13  L.  R.  A.  662,  footnote  p.  661,  2&  W.  X.  C.  456, 
27  Am.  St.  Rep.  618,  22  Atl.  871,  holding  death  by  inhalation  of  gas  at  bottom  of 
shallow  well  accidental;  Western  Commercial  Travelers  Asso.  v.  Smith,  40  L.  R. 
A.  657,  29  C.  C.  A.  228,  56  U.  S.  App.  393,  85  Fed.  406,  holding  death  by  blood 
poisoning,  resulting  from  abrasion  of  skin  of  toe  by  wearing  new  shoe,  accidental ; 
Williams  v.  United  States  Mut.  Acci.  Asso.  38  X.  Y.  S.  R.  380,  14  X.  Y.  Supp. 
728,  holding  question  of  intentional  death  of  insured  for  jury,  where  deceased 
went  upon  railroad  tracks  in  front  of  slowly  approaching  train ;  Travelers  Ins. 
Co.  v.  Hunter,  30  Tex.  Civ.  App.  493,  70  S.  W.  798,  sustaining  company's  liability 
where  accidental  injury  causes  rheumatism  which  causes  death;  Travelers'  Ins. 
Co.  v.  Hunter,  30  Tex.  Civ.  App.  493,  70  S.  W.  798,  holding  death  by  accidental 
.means  where  accidental  injury  produced  rheumatism  which  caused  death;  Jenkins 
L.R.A.  An.  Vol.  L— 33. 


3  L.R.A.  443]  L.  R.  A.  CASES  AS  AUTHORITIES.  514 

v.  Hawyeye  Commercial  Men's  Asso.  147  Iowa,  116,  30  L.R.A.(N.S.)  1183,  124  X. 
W.  199,  holding  death  from  swallowing  fish  bone  accidental,  though  direct  cause 
was  blood  poison;  Pervangher  v.  Union  Casualty  &  Surety  Co.  85  Miss.  35,  37  So. 
461,  holding  an  allegation  of  a  death  from  accidental  external  means  resulting  in 
internal  injury  sufficient  to  come  within  a  death  from  "accidental  means;"  X.  W. 
Commercial  Travellers'  Asso.  v.  London  Guarantee  &  Acci.  Co.  10  Manitoba  L. 
Rep.  551,  holding  death  by  freezing  is  death  through  external,  violent  and  acci- 
dental means  within  meaning  of  policy. 

Cited  in  footnotes  to  Fidelity  &  C.  Co.  v.  Loewenstein,  46  L.  R.  A.  450,  which 
holds  death  by  accidentally  inhaling  gas  while  asleep  covered  by  a'ccident  policy; 
I\Ienneiley  v.  Employers'  Liability  Assur.  Corp.  31  L.  R.  A.  686,  which  holds  death 
by  inhaling  illuminating  gas  while  asleep  covered  by  accident  policy;  Jarnagin  v. 
Travelers'  Protective  Asso.  68  L.R.A.  499,  which  holds  that  failure  of  police 
officers  to  protect  insured  while  in  their  charge  from  assaults  by  other  persons  will 
not  take  his  killing  out  of  provision  against  recovery  in  case  of  death  from 
intentional  injuries. 

Cited  in  notes  (9  L.  R.  A.  371)  on  death  of  insured  by  external,  violent,  and 
accidental  means;  (30  L.  R.  A.  206,  212)  on  what  constitutes  an  accident  within 
meaning  of  accident  insurance  policy;  (30  L.R.A. (N.S.)  1182)  on  death  or  injury 
from  substance  taken  internally  as  caused  by  external  means;  (12  Am.  St.  Rep. 
272)  on  death  by  voluntary  exposure  to  unnecessary  danger,  etc.;  (52  Am.  St. 
Rep.  364)  on  effect  of  insured's  taking  poison. 

Distinguished  in  Bacon  v.  United  States  Mut.  Acci.  Asso.  123  N.  Y.  308,  9  L. 
R.  A.  618,  footnote  p.  617,  20  Am.  St.  Rep.  748,  25  N.  E.  399,  holding  death  from 
malignant  pustule  as  result  of  accidental  contact  with  diseased  animal  matter, 
death  from  disease,  not  accident;  Carnes  v.  Iowa  State  Traveling  Men's  Asso.  106 
Iowa.  285,  68  Am.  St.  Rep.  306,  76  N.  W.  683,  holding  death  from  overdose  of 
morphine,  intentionally  taken  but  in  ignorance  of  effect,  not  accidental;  Feder 
v.  Iowa  State  Traveling  Men's  Asso.  107  Iowa,  540,  43  L.  R.  A.  694,  70  Am.  St. 
Rep.  212,  78  N.  W.  252,  holding  death  due  to  rupture  of  blood  vessel,  caused  by 
voluntary  act,  not  accidental;  Schmid  v.  Indiana  Travelers'  Acci.  Asao.  42  Ind. 
App.  494.  85  N.  E.  1032,  holding  death  from  paralysis  caused  by  carrying  bas- 
gage  up  a  long  flight  of  stairs  not  a  death  from  "accidental  means." 

Disapproved  in  Healy  v.  Mutual  Acci.  Asso.  35  111.  App.  20,  holding  death  by 
accidental  taking  of  chloral  not  accidental. 

Visible    siun.s    of    injury. 

Cited  in  Freeman  v.  Mercantile  Mut.  Acci.  Asso.  156  Mass.  354,  17  L.  R.  A.  755, 
30  N.  E.  1013,  upholding  instruction  declaring  it  sufficient  if  symptoms  or  signs 
became  visible  upon  inspection  of  interior  of  body  after  death;  Bernays  v.  United 
States  Mut.  Acci.  Asso.  45  Fed.  457.  holding  bad,  answer  based  on  lack  of  visible 
marks  of  injury,  where  death  resulting  from  erysipelas  caused  by  accidental  cut, 
admitted:  Root  v.  London  Guarantee  &  Acci.  Co.  92  App.  Div.  583,  86  N.  Y. 
Supp.  1055.  holding  insured's  pallor  and  emaciated  condition  "visible  signs  of  in- 
jury" within  policy;  Travelers'  Ins.  Co.  v.  Avers,  119  111.  App.  406.  holding  policy 
excepting  injuries  of  which  there  is  no  visible  mark  on  body  not  to  apply  to 
invohintary  death  by  asphyxiation;  Rosenthr.l  v.  American  Bonding  Co.  143 
App.  Div.  367,  128  N.  Y.  Supp.  553.  upholding  recovery  on  burglary  insurance 
policy  requiring  visible  signs  of  forcible  entry,  where  burglars  opened  unlocked 
door. 

Cited  in  note   (9  L.  R.  A.  687)   on  external  visible  sign  of  injury  as  essential 
to  right  of  recovery. 
Construction    of    conditions    in    insurance    policy. 

Cited  in  Wehle  v.  United  States  Mut.  Acci.  Asso.  153  N.  Y.  122,  60  Am.  St. 


515  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  447 

Hep.  598,  47  X.  E.  35,  holding  reservation  to  company  of  right  to  view  body  of 
deceased  strictly  construed  to  require  exercise  of  right  within  reasonable  time; 
Rapid  Safety  Fire  Extinguisher  Co.  v.  Hay-Budden  Mfg.  Co.  37  Misc.  560,  75  X. 
Y.  Supp.  1008  (dissenting  opinion),  as  to  construing  words  most  strictly  against 
party  using  them;  Wright  v.  Fire  Ins.  Co.  12  Mont.  483,  19  L.  R.  A.  219,  31 
Pac.  87,  holding  that  provision  voiding  policy  in  case  of  mortgage  on  merchandise 
applies  only  to  merchandise  and  does  not  affect  other  chattels  covered  thereby; 
-Etna  L.  Ins.  Co.  v.  Fitzgerald,  165  Ind.  321,  1  L.R.A.  (X.S.)  425,  112  Am.  St.  Rep. 
232,  75  X.  E.  262,  6  A.  &  E.  Ann.  Cas.  551,  holding  that  interpretation  giving  pro- 
tection is  to  be  preferred;  Continental  Casualty  Co.  v.  Colvin,  77  Kan.  568,  95  Pac. 
565;  Garvey  v.  Phoenix  Preferred  Acci.  Ins.  Co.  123  App.  Div.  109,  108  N.  Y.  Supp. 
186;  Sinclair  v.  National  Surety  Co.  132  Iowa,  557,  107  N.  W.  184,— holding  that 
an  ambiguous  term  in  policy  is  to  be  construed  against  insurance  company; 
Peterson  v.  Modern  Brotherhood,  125  Iowa,  572,  67  L.R.A.  635,  101.  X.  W.  289 
(dissenting  opinion),  on  construction  of  a  policy  in  favor  of  assured;  Schumacher 
v.  Great  Eastern  Casualty  &  Indemnity  Co.  197  X.  Y.  61,  27  L.R.A.(N.S.)  482,  90 
X.  E.  353,  holding  a  general  requirement  as  to  external,  violent  and  accidental 
means  does  not  apply  to  a  separate  provision  as  to  liability  in  case  of  death  from 
certain  specified  causes. 

Cited  in  footnotes  to  Humphreys  v.  Xational  Ben.  Asso.  11  L.  R.  A.  564,  which 
holds  loss  of  sight  of  only  eye  covered  by  provision  for  loss  of  sight  of  both  eyes; 
Dailey  v.  Preferred  Masonic  Mut.  Acci.  Asso.  26  L.  R.  A.  171,  which  holds  risk 
of  getting  on  and  off  moving  train  by  passenger  conductor  covered  by  accident 
policy;  Eury  v.  Standard  Life  &  Acci.  Ins.  Co.  10  L.  R.  A.  534,  which  holds  no- 
tice necessary  before  forfeiture  of  policy  for  nonpayment  of  premium. 

Cited  in  notes  (13  L.  R.  A.  264)  on  burden  of  proving  breach  of  condition  in 
policy;  (10  L.  R.  A.  383)  on  conditions  in  policy  as  to  increase  of  risk  by  change 
in  occupation;  (17  L.  R.  A.  754)  on  proximate  cause  of  death  within  meaning  of 
life  insurance  policy;  (14  Eng.  Rul.  Cas.  22,  25)  on  rules  for  construing  insurance 
policies. 
Construction  of  contracts. 

Cited  in  Gunther  v.  Marteau,  73  Misc.  44,  132  X.  Y.  Supp.  82,  construing  writ- 
ing, acknowledging  loan  and  providing  that  in  case  of  accident  or  death  of  signer 
lender  has  right  to  claim  amount  from  his  estate,  as  loan  payable  on  demand. 

Cited  in  note  (16  Am.  St.  Rep.  306)  on  construction  of  contracts. 

3  L.  R.  A.  447,  YOUMANS  v.  WAGEXER,  30  S.  C.  302,  9  S.  E.  106. 
Inchoate   right   of   dotver. 

Cited  in  Scheuer  v.  Chloupek,  130  Wis.  79,  109  N.  W.  1035,  holding  inchoate 
right  of  do\ver  ceases  where  party  entitled  to  dower  accepts  a  deed  of  fee. 

Cited  in  footnote  to  Hart  v.  Burch,  6  L.  R.  A.  371,  which  holds  ineffectual, 
release  of  dower  to  one  having  no  title. 

Distinguished  in  Davis  v.  Townsend,  32  S.  C.  114,  10  S.  E.  837,  holding  convey- 
ance to  trustee  to  use  of  wife  does  not  merge  inchoate  right  of  dower;  Huff  v. 
Wheeler,  27  Misc.  768,  59  X.  Y.  Supp.  716,  holding  inchoate  right  of  dower  un- 
extingui.shable  except  by  death  or  wife's  conveyance. 
Merger  of  estates. 

Cited  in  note  (99  Am.  St.  Rep.  157)  on  merger  of  estates. 

Distinguished  in  Beachamp  v.  Bertig.  90  Ark.  368,  23  L.R.A.(X.S.)  665,  119  S. 
W.  75.  holding  that  doctrine  of  merger  does  not  apply  where  equities  would 
thereby  be  defeated;  McCreary  v.  Coggeshall,  74  S.  C.  57,  7  T-.R.A.(X.S.)  442,  53 
S.  E.  978.  7  A.  &  E.  Ann.  Cas.  693,  holding  that  a  merger  will  not  take  place 
where  a  contrary  intention  affirmatively  appearg. 


3  L.R.A.  449]  L.  R.  A.  CASES  AS  AUTHORITED.  516 

3  L.  R.  A.  449,  WESTERN  U.  TELEG.  CO.  v.  NEW  YORK,  2  Inters.  Com.  Rep. 

533,  38  Fed.  552. 
Acts   and   ordinances   regulating-   use   of   electric   wires. 

Cited  in  Richmond  v.  Southern  Bell  Teleph.  &  Teleg.  Co.  28  C.  C.  A.  665,  42  U. 
S.  App.  686,  85  Fed.  25,  holding  right  of  telephone  company  to  use  streets  for 
wires  subject  to  police  power  of  city;  United  States  Illuminating  Co.  v.  Grant,  55 
Hun,  238,  8  N.  Y.  Supp.  788  (concurring  opinion),  as  to  constitutionality  of  act 
•authorizing  "board  of  control"  to  regulate  use  of  electric  wires  in  city  highways; 
American  Rapid  Teleg.  Co.  v.  Hess,  125  N.  Y.  651,  13  L.  R.  A.  458,  21  Am.  St. 
Rep.  764,  26  N.  E.  919,  holding  legislative  acts  providing  for  regulation  of  electric 
wires  in  streets  constitutional;  Western  U.  Teleg.  Co.  v.  Mellon,  100  Tenn.  434, 
45  S.  W.  443,  holding  telegraph  company  liable  for  negligence  in  failing  to  deliver 
message,  although  engaged  in  interstate  commerce;  State  ex  rel.  Wisconsin 
Teleph.  Co.  v.  Janesville  Street  R.  Co.  87  Wis.  78,  22  L.  R.  A.  763,  41  Am.  St.  Rep. 
23,  57  N.  W.  970,  holding  ordinance  regulating  stringing  of  electric  wires  in  city 
reasonable  exercise  of  police  power;  O'Brien  v.  Erie,  20  Pa.  Co.  Ct.  343,  7  Pa. 
Dist.  R.  495,  and  Geneva  v.  Geneva  Teleph.  Co.  30  Misc.  242,  62  N.  Y.  Supp.  172, 
holding  municipality  may  order  electric  wires  under  ground  and  poles  taken  from 
streets;  State  v.  Western  U.  Teleg.  Co.  43  Mont.  449,  117  Pac.  93,  holding  that 
state  cannot  tax  right  of  telegraph  company  to  transact  business  as  agent  of 
government. 

Cited  in  footnote  to  Northwestern  Teleph.  Exch.  Co.  v.  Minneapolis,  53  L.  R.  A. 
175,  which  requires  council's  discretion  in  compelling  telegraph  company  to  put 
under  ground  wires  placed  overhead  under  ordinance,  to  be  reasonably  exercised. 

Cited  in  notes  (5  L.  R.  A.  161)  on  state  regulation  of  telephone  companies; 
(8  L.  R.  A.  854)  on  private  interests  subservient  to  public  interests;  (10  L.  R 
A.  497)  on  legislative  control  of  electric  wires  in  city  streets;  (13  L.  R.  A.  454) 
on  telegraph  companies  subject  to  police  power  of  municipalities;  (24  L.  R.  A. 
165)  on  power  of  states  to  control  or  impose  burdens  on  interstate  telegraph  and 
telephone  companies;  (31  L.  R.  A.  804,  805)  on  police  regulation  of  electric  com- 
panies; (34  L.  R.  A.  370)  on  grant  of  franchises  to  electrical  subway  companies. 

Distinguished  in  St.  Louis  v.  Western  U.  Teleg.  Co.  39  Fed.  60,  holding  license 
tax  on  telegraph  poles  not  valid  "regulation." 
Patent    rights. 

Cited  in  note   (29  L.  R.  A.  792)    on  power  of  state  to  restrict  and  regulate 
sale  or  enjoyment  of  patent  rights. 
Franchise  rights  in  streets. 

Cited  in  People  ex  rel.  New  York  Electric  Lines  Co.  v.  Ellison,  188  N.  Y.  534, 
81  N.  E.  447,  holding  that  legislature  had  power,  to  authorize  the  laying  of  elec- 
trical conduits  underground  though  it  had  authorized  another  company  to  do 
same. 

Cited  in  note  (14  L.R.A.(N.S.)  655,  656)  on  right  to  require  underground  tele- 
graph or  telephone  wires. 

Questioned  in  Sunset  Teleph.  &  Teleg.  Co.  v.  Pomona,  164  Fed.  571,  holding 
that  a  city  has  a  right  to  remove  poles  and  wires  from  street  where  franchise 
has  expired. 

3  L.  R.  A.  455,  McDERMOTT  v.  CHICAGO  &  N.  W.  R.  CO.  38  Fed.  529. 
Removal    of   cause. 

Cited  in  note  (11  L.  R.  A.  568)  on  removal  of  cause  for  prejudice  or  local 
influence. 


517  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  464 

3  L.  R.  A.  458,  SAWYER  v.  McGILLICUDDY,  81  Me.  318,  10  Am.  St.  Rep.  260, 

17  Atl.  124. 
Who  shonld  repair  leased  property. 

Cited  in  O'Connor  v.  Andrews,  81  Tex.  34,  16  S.  W.  628,  holding  owner  of  build- 
ing leased  to  several  tenants  liable  for  injury  to  passerby  occasioned  by  fall  of 
cornice  and  fire  wall;  Foren  v.  Rodick,  90  Me.  279,  38  Atl.  175,  holding  owner  of 
office  building  liable  for  injury  to  third  person,  occasioned  by  unguarded  cellar- 
way  near  main  entrance;  Abbott  v.  Jackson,  84  Me.  459,  24  Atl.  900,  holding 
landlord  not  liable  to  third  person  for  neglect  in  keeping  in  repair  railroad  cross- 
ing used  exclusively  by  tenant;  La  Plante  v.  La  Zear,  31  Ind.  App.  438,  68  N.  E. 
312,  holding  landlord  liable  for  failure  to  repair  steps  of  apartment  house;  Burner 
v.  Higman  &  S.  Co.  127  Iowa,  590,  103  N.  W.  802,  holding  tenant  liable  to  sub- 
tenant of  portion  of  building  for  failure  to  properly  guard  elevator  where  subten- 
ant is  removing  stored  goods;  Perrine  v.  Union  Stock  Yards  Co.  81  Neb.  793,  116 
X.  W.  776,  holding  stockyard  company  liable  for  negligent  maintenance  of  an 
alley  through  which  it  invited  tenants  using  yards  to  pass;  Oerter  v.  Zeigler, 
59  Wash.  424,  109  Pac.  1058,  holding  that  landlord  of  office  building  is  not  bound 
to  keep  free  from  ice  steps  leading  to  basement  leased  to  different  tenants; 
Weaver  Mercantile  Co.  v.  Thurmond,  68  W.  Va.  536,  33  L.R.A.(N.S.)  1065,  70  S. 
E.  126.  holding  the  landlord  is  bound  to  prevent  water  from  escaping  from  tank 
which  supplies  several  rented  houses. 

Cited  in  notes  (14  L.  R.  A.  239)  on  responsibility  of  landlord  for  injuries  re- 
sulting from  defects  in  portions  of  building  remaining  in  his  possession;  (23  L. 
R.  A.  156)  on  liability  of  landlord  as  to  condition  of  part  of  premises  not  con- 
trolled by  tenant;  (3  L.R.A.(N.S.)  316)  on  liability  of  landlord  for  injury  in  com- 
mon passageway;  (20  Am.  St.  Rep.  654)  on  necessity  of  keeping  leased  premises 
in  repair:  (9  Eng.  Rul.  Cas.  458)  on  implied  obligation  of  landlord  to  repair,  and 
implied  warranty  of  fitness  of  premises  for  purposes  for  which  they  are  let. 

Distinguished  in  McKenzie  v.  Cheetham,  83  Me.  549,  22  Atl.  469,  holding  that 
guest  of  sole  tenant  cannot  recover  against  landlord  for  personal  injury  due  to 
defective  stairway. 

3  L.  R.  A.  460,  KIXGSBURY  v.  MATTOCKS,  81  Me.  310,  17  Atl.  126. 
"Alabama"    claimants. 

Cited  in  Taft  v.  Marsily,  120  N.  Y.  478,  24  N.  E.  926,  holding  that  assignee  in 
bankruptcy  did  not  take  amount  of  award  by  Alabama  claims  commission. 

Cited  in  footnote  to  Manning  v.  French,  4  L.  R.  A.  339,  which  holds  commis- 
sioners of  Alabama  claims  authorized  to  remove  unfit  attorney. 

Cited  in  note  (13  L.  R.  A.  259)  on  judges  of  court  of  commissioners  of  Ala- 
bama claims. 

Overruled  in  effect  in  Williams  v.  Heard,  140  U.  S.  536,  35  L.  ed.  553,  11  Sup. 
Ct.  Rep.  885,  holding  Alabama  award  passed  to  assignee  in  bankruptcy. 
BanUrnptcy  as  affecting:  claims  auniiist   sovereign. 

Cited  in  Campbell  v.  United  States,  28  Ct.  Cl.  513,  holding  claims  for  property 
seized  by  army  in  the  seceded  states  during  civil  war  do  not  pass  in  bankruptcy 
and  may  be  prosecuted  by  the  original  claimant. 

3  L.  R.  A.  464,  PEOPLE  v.  SHERWOOD,  113  N.  Y.  174,  21  N.  E.  87. 
Succession     tax. 

Followed  without  opinion  in  Re  Hall,  29  N.  Y.  S.  R.  367.  8  N.  Y.  Supp.  55ft 
Cited  in  Ruckgaber  v.  Moore,  104  Fed.  955.  holding  United  States  war  tax  01 
1898,  imposing  tax  on  estates  passing  under  inheiitance  laws  of  "state  or  terri- 
tory," does  not  burden  estate  distributable  by  law  of  foreign  country ;  Re  Bronson, 


3  L.R.A.  464]  L.  R.  A.  CASES  AS  AUTHORITIES.  518 

150  N.  Y.  11,  34  L.  R.  A.  242,  55  Am.  St.  Rep.  632,  44  X.  E.  707,  Modifying 
1  App.  Div.  548,  37  N.  Y.  Supp.  476,  holding  stock  but  not  bonds  of  local  corpo- 
ration, held  by  nonresident  owner  at  domicil,  subject  to  inheritance  tax;  Re 
Miller,  77  App.  Div.  479,  78  N.  Y.  Supp.  930,  holding  antenuptial  transfer  and 
retransfer  in  trust  not  taxable;  Re  Wolfe,  89  App.  Div.  351,  85  N.  Y. 
Supp.  949,  holding  refused  legacy,  which  passes  to  residuary  legatee,  not  taxable 
at  same  rate  as  if  accepted;  State  ex  rel.  Floyd  v.  District  Ct.  41  Mont.  368.  100 
Pac.  438,  holding  inheritance  tax  law  constitutional. 

Cited  in  note  (127  Am.  St.  Rep.  1096)  on  inheritance  taxation. 
Jurisdiction  of  surrogate  thereunder. 

Cited  in  Re  Ullmann,  137  N.  Y.  407,  33  N.  E.  480,  holding  it  within  surro- 
gate's jurisdiction  and  duty  to  determine  all  matters  arising  in  distribution  of 
estate  under  will  or  under  statute  of  distribution;  Re  Embury.  19  App.  Div. 
215,  79  N.  Y.  S.  R.  882,  45  N.  Y.  Supp.  881,  holding  surrogate's  court  without 
jurisdiction  to  impose  tax  on  personalty  of  nonresident  decedent,  where  no  realty 
within  county. 
Construction  of  succession  tax  act. 

Cited  in  Re  Harbeck,  161  N.  Y.  217,  55  X.  E.  850,  holding  bequests  in  execution 
of  power  created  by  will  in  force  prior  to  inheritance  tax  law  not  subject  to  tax ; 
Re  Vassar,  127  N.  Y.  12,  27  N.  E.  394,  holding  that  provision  of  tax  exempting 
from  its  operation  institutions  "now  exempt  from  taxation"  covers  hospital 
whose  charter  exempts  all  personalty,  although  realty  outside  hospital  buildings 
remained  subject;  Re  Sherwell,  11  X.  Y.  Supp.  897,  holding  share  of  each  legatee 
entitled  to  deduction  of  $500,  and  balance  only  subject  to  inheritance  tax  laws 
of  1887,  chap.  713:  Re  Kimberly,  27  App.  Div.  473,  50  N.  Y.  Supp.  586,  holding 
legacy  to  charitable  organization,  the  property  of  which  is  exempt  from  taxation, 
not  subject  to  transfer  tax  imposed  by  Laws  1896,  chap.  908,  §  220;  Re  Hunting- 
ton,  34  Misc.  512,  70  N.  Y.  Supp.  429,  holding  specially  exempted  corporation 
not  subject  to  transfer  tax  by  Laws  1896,  art.  2,  as  amended  by  Laws  1900, 
chap.  382,  §  2;  People  ex  rel.  Young  Men's  Asso.  v.  Sayles,  32  App.  Div.  201, 
53  N.  Y.  Supp.  67,  holding  property  of  corporation  organized  solely  for  benevo- 
lent purposes  subject  to  taxation  where  not  "exclusively  used"  in  furtherance  of 
such  ends;  Re  Howell,  34  Misc.  435,  69  X.  Y.  Supp.  1016,  holding  remainders  to 
children  surviving  at  death  of  mother,  contingent,  and  not  subject  to  tax; 
Hoffman's  Estate,  5  Misc.  441,  26  N.  Y.  Supp.  888,  holding  determination  of 
liability  of  estate  to  taxation  under  Laws  1892.  chap.  399,  governed  by  value  of 
personalty  passing  to  legatees  not  exempted;  People  v.  Griffith,  245  111.  539,  92 
X.  E.  313,  holding  that  definition  of  what  property  of  nonresidents  is  subject  to 
inheritance  tax  should  not  be  extended  beyond  clear  import  of  language;  Re 
Stebbins,  52  Misc.  441,  103  X.  Y.  Supp.  563,  holding  that  property  cannot  be  sub- 
jected to  an  inheritance  tax  without  the  clear  warrant  of  law;  Re  Clark,  2 
Connoly,  184,  9  X.  Y.  Supp.  444,  holding  a  bank  account  and  a  bond  and  morts:a2re 
of  a  nonresident  subject  to  inheritance  tax;  State  ex  rel.  Gage  v.  Probate  Ct.  112 
Minn.  285,  128  X.  W.  18,  holding  that  inheritance  tax  is  to  be  computed  on  valuo, 
at  time  of  decedent's  death,  of  beneficiary's  interest;  Tilford  v.  Dickinson.  70  X 
J.  L.  304,  75  Atl.  574,  holding  that  executor  cannot  relieve  property  within  state 
from  taxation  by  applying  it  to  exempt  legacies  and  by  paying  taxable  legacies 
from  foreign  property;  Re  Arnot.  145  App.  Div.  714.  130  X.  Y.  Supp.  499.  holding 
bequests  to  art  gallery  not  taxable. 

Cited  in  footnote  to  Re  Swift,  18  L.R.A.  709.  as  to  what  is  subject  to  suc- 
cession tax. 

Cited  in  notes    (4  L.  R.  A.   171)    on  succession  tax  as  tax  on  property;    (12 
L.  R.  A.  402)   on  succession  taxes  under  Xew  York  statutes. 


519  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A  464 

Distinguished  in  Re  Embury,  20  Misc.  79,  45  N.  Y.  Supp.  821,  holding  that 
where  intention  to  tax  is  clear,  liberal  construction  in  favor  of  provisions  for 
enforcement  of  tax  prevails;  Re  Stewart,  131  X.  Y.  282,  14  L.  R.  A.  840,  30  X.  E. 
184,  Reversing  61  Hun,  547,  16  X.  Y.  Supp.  388,  holding  appraisal  of  contingent 
interests  may  be  made  at  time  of  vesting  after  decedent's  death,  under  power  of 
surrogate  to  appoint  appraiser  "whenever  occasion  requires." 
—  Situs  of  stocka  and  bonds. 

Cited  in  Re  Corning,  3  Misc.  162,  1  Power,  180,  23  X.  Y.  Supp.  285,  holding 
mortgage  bonds  on  foreign  property  kept  outside  state,  subject  to  inheritance  tax 
on  estate  of  resident;  Re  James,  144  N.  Y.  10,  43  Am.  St.  Rep.  725,  38  X.  E.  961, 
Affirming  77  Hun,  214,  28  N.  Y.  Supp.  351,  Reversed  in  6  Misc.  206,  1  Power,  604, 
holding  stocks  and  bonds  of  foreign  corporations  kept  on  deposit  in  state  by 
nonresident  decedent  have  situs  at  domicil  of  corporation  or  of  shareholder: 
Re  dishing,  40  Misc.  505,  82  X.  Y.  Supp.  792,  holding  Xew  York  national  bank 
stock  of  nonresident  taxable;  Re  Bishop,  82  App.  Div.  116,  81  X.  Y.  Supp.  474, 
holding  stock  in  foreign  corporation  taxable  if  owner  resident;  Re  Gibbes,  84 
App.  Div.  512,  83  X.  Y.  Supp.  53,  holding  not  taxable  bonds  owned  by  deceased 
nonresident  in  foreign  corporation,  which  passed  to  nonresident;  dissenting  opin- 
ion in  Re  Whiting,  150  N.  Y.  33,  34  L.  R.  A.  235,  55  Am.  St.  Rep.  640,  44  X.  E. 
715,  Modifying  2  App.  Div.  592,  38  X.  Y.  Supp.  131,  majority  holding  bonds  of 
foreign  corporations  kept  by  nonresident  owner  on  deposit  within  state  subject 
to  inheritance  tax;  Xeilson  v.  Russell,  76  X.  J.  L.  656,  19  L.R.A.(X.S.)  887,  131 
Am.  St.  Rep.  673,  71  Atl.  266,  holding  inheritance  tax  not  to  apply  to  stock  of  a 
Xew  Jersey  corporation  belonging  to  a  testator  domiciled  in  England. 

Cited  in  notes  (19  L.R.A.  (X.S.)  888,  889)  on  transfer  tax  in  respect  of  stock  in 
domestic  corporation  belonging  to  estate  of  nonresident;  (62  Am.  St.  Rep.  455) 
on  situs  of  personal  property  for  purposes  of  taxation. 

Distinguished  in  Re  Leopold,  35  Misc.  370,  71  X.  Y.  Supp.  1032,  holding 
funds  forwarded  to  bank  in  state  for  purpose  of  purchase  of  stock  in  foreign 
corporation  not  subject  to  tax,  though  deceased  died  before  transaction  com- 
pleted; Eidman  v.  Martinez,  184  U.  S.  587,  46  L.  ed.  703,  22  Sup.  Ct.  Rep. 
515,  holding  corporate  bonds  in  hands  of  local  agent  of  foreign  intestate  not 
subject  to  war  tax  of  1898,  providing  for  tax  on  personalty  passing  under  laws 
of  "any  state"  where  governed  by  foreign  law;  Xeilson  v.  Riissell,  76  X.  J.  L.  32, 
69  Atl.  476,  holding  act  to  extent  to  stock  of  a  Xew  Jersey  corporation  held  by  a 
nonresident  passing  by  will. 

Cited  as  changed  by  statute  in  Re  Romaine,  127  X.  Y.  83,  12  L.  R.  A.  405, 
27  X.  E.  759,  Affirming  58  Hun,  110,  11  X.  Y.  Supp.  313,  holding  stocks  and 
bonds  of  deceased  nonresident,  deposited  in  Xew  York  for  safe  keeping,  have  local 
situs  for  purpose  of  taxation  under  amended  (1887)  inheritance  tax. 

Qualified  in  Re  Swift,  137  X.  Y.  83,  18  L.  R.  A.  711,  32  N.  E.  1096,  Reversing 
2  Connoly,  650,  16  X.  Y.  Supp.  193,  holding  personalty  of  resident  decedent  situ- 
ated out  of  state  subject  to  tax,  although  proceeds  of  realty  out  of  state  brought 
in  for  distribution  not  subject. 
Construction    of    special    tax    provisions. 

Cited  in  Re  Starbuck,  63  Misc.  159,  116  X.  Y.  Supp.  1030,  holding  that  to  bring 
property  within  provisions  of  a  special  tax  it  must  be  shown  that  property  is 
•clearly  within  its  provisions;  People  ex  rel.  McKnight  v.  Union  Bag  &  Paper  Co. 
63  Misc.  134,  118  X.  Y.  Supp.  456.  holding  that  if  there  is  any  doubt  that  certain 
property  is  subject  to  a  special  tax  the  property  should  not  be  taxed;  Re  Kennedy, 
113  App.  Div.  6.  99  X.  Y.  Supp.  72,  holding  that  a  transfer  tax  should  be  strictly 
const  rue- 1:  Re  Mergentime,  129  App.  Diy.  374.  113  X.  Y.  Supp.  948,  holding  a 
bequest  of  personal  property  to  an  art  museum  not  within  transfer  tax. 


3  L.R.A.  464]  L.  R.  A.  CASES  AS  AUTHORITIES.  520 

Deceased's    residence. 

Cited  in  Re  Vinot,  26  N.  Y.  S.  R.  611,  7  N.  Y.  Supp.  517,  and  James's  Estate, 
6    Misc.    207,    27    N.    Y.    Supp.    288,    holding   nonresidence    of    deceased    imma- 
terial under  inheritance  tax  law  as  amended  in  1887. 
Exemption. 

Cited  in  Eidman  v.  Martinez,  184  U.  S.  583,  46  L.  ed.  701,  22  Sup.  Ct.  Rep, 
515,  dictum  to  effect  that  rule  regarding  proof  of  exemption  from  general  taxa- 
tion differs  from  rule  regarding  proof  of  nonliability  to  special  taxation. 


3  L.  R.  A.  468,  FIRST  PRESBY.  CHURCH  v.  COOPER,  112  N.  Y.  517,  8  Am. 

St.  Rep.  767,  20  N.  E.  352. 
Wben    promise    to    pay    binding-;    consideration. 

Cited  in  Keuka  College  v.  Ray,  167  N.  Y.  100,  60  N.  E.  325,  Affirming  41  App. 
Div.  202,  58  N.  Y.  745,  holding  that  founding  of  college  makes  subscription  in 
consideration  thereof  binding;  Irwin  v.  Lombard  University,  56  Ohio  St.  19,  36 
L.  R.  A.  241,  60  Am.  St.  Rep.  727,  46  N.  E.  63.  holding  that  founding  of  a  pro- 
fessorship on  strength  of  subscriptions  rendered  them  binding;  Lasar  v.  Johnson, 
125  Cal.  553,  58  Pac.  161,  holding  subscription  followed  by  obligation  incurred 
on  strength  of  request  binding;  Martin  v.  Meles,  179  Mass.  116,  60  N.  E.  397, 
sustaining  right  to  recover  on  subscription  contribution  to  fund  to  carry  on 
litigation,  after  expense  has  been  incurred;  Johnson  v.  Tennessee  Oil,  etc.  Co. 
74  X.  J.  Eq.  41,  69  Atl.  788,  holding  an  agreement  to  voluntarily  contribute, 
enforceable  where  obligations  are  inciirred  in  reliance  on  promise:  Keuka  College 
v.  Ray,  41  App.  Div.  202,  58  N.  Y.  Supp.  745,  holding  a  note  given  to  a  corpora- 
tion as  an  inducement  to  a  third  party  to  make  a  gift  to  it  is  enforceable  where 
gift  is  so  made;  Commercial  Travelers'  Home  Asso.  v.  McXamara,  95  App.  Div. 
4,  88  N.  Y.  Supp.  443,  on  when  voluntary  subscriptions  are  binding. 

Cited  in  footnote  to  Ballard  v.  Burton,  16  L.  R.  A.  664,  which  holds  forbearance 
to  withdraw  money  from  bank  consideration  for  third  person  signing  certificate 
of  deposit  as  surety. 

Cited  in  notes  (3  L.  R.  A.  762)  on  consideration  for  contract;  (12  L.  R.  A. 
465)  on  good  consideration  for  contract;  (3  L.  R.  A.  859)  on  interpretation  of 
words  in  contract;  (39  Am.  St.  Rep.  745)  on  moral  obligation  as  consideration  to 
uphold  express  promise. 

Distinguished  in  Gerard  v.  Cowperthwait,  2  Misc.  379,  21  N.  Y.  Supp.  1092. 
holding  consideration  for  giving  bond  under  seal,  complete  on  its  face,  could  not 
be  inquired  into;  Commercial  Travelers'  Home  Asso.  v.  McXamara,  42  Misc.  259, 
86  X.  Y.  Supp.  608,  sustaining  corporation's  right  to  compel  treasurer  to  pay  over 
fund  contributed. 
'When  promise  to  pay  not  binding1. 

Cited  in  Rev  v.  Equitable  L.  Assur.  Soc.  16  App.  Div.  203,  44  N.  Y.  Supp.  745. 
holding  recovery  cannot  be  had  on  life  policy  for  which  no  consideration  was 
paid;  Myers  v.  Dean,  11  Misc.  370,  32  X.  Y.  Supp.  237,  holding  promise  without 
consideration,  made  after  services  performed  gratuitously,  will  not  support 
action;  Hull  v.  Pearson,  38  App.  Div.  593,  56  X.  Y.  Supp.  518,  holding  gratuitous 
subscription  in  behalf  of  educational  institution  not  binding:  Twenty-third  Street 
Baptist  Church  v.  Cornell,  117  X.  Y.  604,  6  L.  R.  A.  807,  23  X.  E.  177,  holding 
that  invalid  gratuitous  subscription  to  church  building  fund  cannot  be  validated 
by  erecting  church  after  death  of  subscriber :  Davis  v.  Bronson,  2  X.  D.  309. 
16  L.  R.  A.  659,  33  Am.  St.  Rep.  783,  50  X.  Vs .  S36,  holding  erection  of  creamery 
under  contract,  after  refusal  by  other  party  to  perform,  gave  no  right  of  recovery 
on  contract  price;  People's  Bank  &  T.  Co.  v.  Weidinger,  73  X.  J.  L.  438.  64  AtL 


S21  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  472 

179,  holding  a  gratuitous  promise  for  benefit  of  a  third  party  not  binding  where 
not  acted  upon  by  other  parties  in  reliance  thereon. 

Cited  in  footnote  to  Rogers  v.  Galloway  Female  College,  39  L.  R.  A.  636,  which 
construes  subscription  to  obtain  location  of  college  "at"  or  "in"  certain  town 
does  not  require  placing  it  within  corporate  limits. 

Cited  in  notes  (6  L.  R.  A.  807)  on  unenforceable  contracts;   (12  L.  R.  A.  464) 
on  enforceability  of  mere  voluntary  promise. 
Prerequisite  conditions  precedent. 

Cited  in  Sager  v.  Gonnerman,  50  Misc.  506,  "100  X1.  Y.  Supp.  406,  holding  re- 
covery upon  a  contract  upon  condition  precedent  can  be  had  only  upon  a  showing 
of  strict  performance  by  party  in  whose  favor  the  provision  is  made. 

3  L.  R.  A.  472,  LAND,  LOG  &  LUMBER  CO.  v.  BROWN,  73  Wis.  294,  40  N.  W. 

482. 
Relation   of   court    to   other   departments. 

Cited  in  Grunert  v.  Spalding,  104  Wis.  208,  78  N.  W.  606,  refusing  to  disturb 
town  as  created  by  county  board,  though  of  irregular  shape,  where  it  is  one 
continuous  tract;  People  ex  rel.  Woodyatt  v.  Thompson,  155  111.  470,  40  N.  E.  307, 
holding  that  courts  will  not  revise  apportionment  act  on  ground  that  senatorial 
districts  created  are  not  as  compact  as  possible. 
Special  legislation. 

Cited  in  Wagner  v.  Milwaukee  County,  112  Wis.  606,  88  N.  W.  577,  holding 
act  providing  for  construction  of  viaducts  in  counties  invalid,  if  applicable  to 
one  county  only;  State  ex  rel.  Busacker  v.  Groth,  132  Wis.  297,  112  N.  W. 
431,  sustaining  a  general  law  applicable  to  all  counties  of  a  certain  population; 
Bingham  v.  .Milwaukee  County,  127  Wis.  349,  106  N.  W.  1071,  holding  a  classifica- 
tion of  counties  by  population  to  be  proper;  Smith  v.  Burlington,  129  Wis.  341, 
109  X.  W.  79,  holding  classification  of  municipalities  according  to  population  for 
purpose  of  conferring  powers  to  be  proper ;  State  ex  rel.  Scanlan  v.  Archibold,  146 
Wis.  371,  131  N.  W.  895,  holding  valid,  act  providing  for  election  of  one  super- 
visor in  each  assembly  district  in  counties  of  certain  population. 

Cited  in  footnotes  to  State,  Alexander,  Prosecutor,  v.  Elizabeth,  23  L.  R.  A. 
525,  which  holds  invalid  special  statute  discriminating  between  municipalities 
already  having,  and  those  not  having,  racecourse;  Com.  ex  rel.  Jones  v.  Blackley, 
52  L.  R.  A.  367,  which  sustains  classification  of  townships  by  density  of  popu- 
lation ;  Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating 
sheriff's  fees  for  particular  county,  local. 

Cited  in  note   (7  L.  R.  A.  193)    on  constitutionality  of  classification  of  cities 
i>y  statute. 
"What    property    taxable. 

Cited  in  Torrey  v.  Baldwin,  3  Wyo.  441,  26  Pac.  908,  holding  certain  personal 
property  within  county  taxable. 

Cited  in  footnote  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes,  not  applying  to  all  parts  of  state,  unconstitutional. 

Cited  in  notes   (34  L.  R.  A.  197)   on  municipal  taxation  of  rural  lands  within 
limits  of  corporation;   (14  L.  R.  A.  475)  on  public  purposes  for  which  money  may 
"be  appropriated  or  raised  by  taxation;    (61   L.  R.  A.  51)    on  taxation  for  mu- 
nicipal water  supply. 
n«--«-ii:i«-t  inii   of  statute. 

Cited  in  Garland  v.  Hickey,  75  Wis.  183,  43  X.  W.  832,  upholding,  as  re- 
enactment,  act  extending  to  other  county  existing  act  applicable  to  other  counties. 


3  L.R.A.  472]  L.  R.  A.  CASES  AS  AUTHORITIES.  522 

Power  of   towns  and  boroughs. 

Cited  in  Washburn  Waterworks  Co.  v.  Washburn,  129  Wis.  80,  108  N.  W.  194, 
holding  that  a  town  board  could  be  given  power  to  contract  for  water  for  unin- 
corporated towns  of  a  certain  class;  Bennett  v.  Nebagamon,  122  Wis.  299,  99 
X.  W.  1039,  holding  a  resolution  of  the  electors  of  a  town  sufficient  to  adopt  the 
provisions  of  a  statute  permitting  town  authorities  to  assume  powers  of  village 
board. 

Cited  in  footnote  to  Haupt's  Appeal,  3  L.  R.  A.  536,  which  holds  that  borough 
cannot  furnish  any  of  water  supply  to  other  municipality. 

3  L.  R.  A.  476,  STATE  ex  rel.  BAYHA  v.  KANSAS  CITY  CT.  OF  APPEALS, 

97  Mo.  331,  10  S.  W.  855. 
Dismissal   of  appeal. 

Cited  in  Stauffer  v.  Salimonie  Min.  &  Gas.  Co.  147  Ind.  74,  46  N.  E.  342, 
holding  that  where  controversy  has  been  terminated  by  acts  of  appellant  appeal 
will  be  dismissed;  Re  Hutton,  92  Mo.  App.  138,  holding  settlement  after  appeal 
not  ground  for  dismissal  where  amount  received  by  appellant  is  due  him,  inde- 
pendent of  claim  in  suit;  Miller  v.  Continental  Assur.  Co.  233  Mo.  97,  134  S. 
W.  1003,  holding  that  removed  officers  of  insurance  company  against  whom  no 
personal  judgment  was  rendered  cannot  object  to  attorneys  for  company  moving 
that  appeal  by  it  be  dismissed;  Hicks  v.  St.  Louis,  234  Mo.  653,  138  S.  W.  342, 
dismissing  appeal  from  injunction  restraining  city  from  shutting  off  water,  on 
enactment  of  ordinance  authorizing  water  to  be  continued  to  be  furnished. 
Superintending;  control  of  supreme  court  over  inferior  eonrts. 

Cited  in  State  ex  rel.  Fourth  Nat.  Bank  v.  Johnson,  103  Wis.  617,  51  L.  R.  A. 
60,  79  N.  W.  1081,  and  State  ex  rel.  Hawes  v.  Mason,  153  Mo.  55,  54  S.  W.  524, 
holding  superintending  jurisdiction  of  supreme  court  over  inferior  courts  is  as 
broad  as  exigencies  of  case  demands. 

Cited  in  notes  (51  L.R.A.  58,  110)  on  superintending  control  and  supervisory 
jurisdiction  of  superior  over  inferior  tribunals;  (15  Eng.  Rul.  Cas.  135)  on 
power  of  higher  court  to  require  justices  to  review  their  discretionary  decisions. 
Mandamus  to  inferior  tribunals  and  corporate  bodies. 

Cited  in  State  ex  rel.  Fourth  Nat.  Bank  v.  Johnson,  103  Wis.  618,  51  L.  R.  A. 
60,  79  N.  W.  1081,  holding  writ  lies  to  compel  recognition  of  absolute  right  in 
inferior  court,  notwithstanding  appealable  orders  remain  unreversed;  State 
ex  rel.  St.  Louis,  K.  &  N.  W.  R.  Co.  v.  Klien,  140  Mo.  513,  41  S.  W.  895,  holding 
supreme  court  may  compel  entry  of  final  judgment  by  circuit  court;  Schintz  v. 
Morris,  13  Tex.  Civ.  App.  594,  35  S.  W.  516,  holding  that  district  court  may  be 
compelled  to  grant  new  trial  upon  whole  case,  when  verdict  set  aside  in  part; 
State  ex  rel.  Schonhoff  v.  O'Bryan,  102  Mo.  259,  14  S.  W.  933,  holding  that 
court  wrongfully  remanding  case  taken  to  it  on  change  of  venue  may  be  com- 
pelled to  proceed  with  cause;  State  ex  rel.  Martin  v.  Wofford,  121  Mo.  67,  25 
S.  W.  851,  holding  county  criminal  court  may  be  compelled  to  order  transcript 
of  stenographer's  notes,  without  cost  to  defendant,  when  entitled  to  it  under 
statute;  State  ex  rel.  Kelleher  v.  St.  Louis  Public  Schools,  134  Mo.  311,  56  Am. 
St.  Rep.  503,  35  S.  W.  617,  holding  that  school  board  may  be  compelled  to  hold 
impartial  election  for  director,  when  discretion  abused;  State  ex  rel.  Klotz  v. 
Ross,  118  Mo.  76,  23  S.  W.  196  (dissenting  opinion),  majority  holding  that 
mandamus  will  not  lie  for  review  of  order  appointing  receiver;  State  ex  rel. 
Third  Nat.  Bank  v.  Smith,  107  Mo.  534,  17  S.  W.  901  (dissenting  opinion), 
majority  holding  that  court  of  appeals  cannot  be  compelled  to  certify  cause 
to  supreme  court  for  review;  State  ex  rel.  Stanberry  v.  Smith,  172  Mo.  627,  73 
S.  W.  134,  and  State  ex  rel.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Smith,  172  Mo.  459, 


523  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  482 

72  S.  W.  692,  holding  mandamus  proper  remedy  to  compel  lower  court  to  hear 
case;    State  ex  rcl.  Mississippi  River  &  B.  T.  R.  Co.  v.  Bearing,   173  Mo.  511, 

73  S.  W.  485,  holding  that  mandamus  lies  to  compel  lower  court  to  hear  evidence 
as  to  exceptions  in  commissioner's  report;   Golden  Gate  Tile  Co.  v.  Superior  Ct. 
159  Cal.  478,  114  Pac.  978,  holding  that  mandamus  will  lie  to  compel  superior 
court  to  take  jurisdiction  of  appeal  from  justice's  court;   State  ex  rel.  Umbreit 
v.  Helms,  136  Wis.  441,  118  N.  W.   158,  sustaining  right  of  Supreme  Court  to 
compel  court  below  to  try  a  criminal  cause;  Wandelohr  v.  Rainey,  100  Tex.  475, 
TOO  S.  W.  1155,  holding  mandamus  proper  remedy  where  court  refused  to  permit 
a  transcript  to  be  filed. 

Cited  in  footnote  to  Port  Royal  Min.  Co.  v.  Hagood,  3  L.  R.  A.  841,  which 
refuses  to  compel  board  of  agriculture  by  mandamus  to  issue  license  to  mine 
phosphate  rock. 

Cited  in  note  (13  L.  R.  A.  121)   on  mandamus  in  general. 

Distinguished  in  State  ex  rel.  Springfield  Traction  Co.  v.  Broaddus,  207  Mo. 
123,  105  S.  W.  629,  holding  mandamus  from  supreme  court  not  to  lie  to  compel 
court  of  appeals  to  hear  and  decide  a  cause  on  ground  that  it  erroneously  held 
no  bill  of  exceptions  had  been  filed. 
Certiorari   or  writ   of  prohibition   to  inferior  tribnnal. 

Cited  in  State  ex  rel.  Walbridge  v.  Valliant,  123  Mo.  540,  28  S.  W.  586  (dis- 
senting opinion),  majority  holding  that  writ  will  not  lie  to  review  interlocutory 
order  involving  jurisdiction  of  circuit  court,  before  final  judgment;  Crooks  v. 
Fourth  Judicial  Dist.  Court,  21  Utah,  108,  59  Pac.  529  (dissenting  opinion), 
majority  holding  order  dismissing  appeal  from  judgment  of  justice  of  the  peace, 
for  want  of  jurisdiction,  not  reviewable  on  certiorari;  State  ex  rel.  Anheuser- 
Busch  Brewing  Asso.  v.  Eby,  170  Mo.  516,  71  S.  W.  52,  holding  that  supreme 
court  has  power  to  issue  writ  of  prohibition  to  lower  court  to  prevent  trial  of 
certain  liquor  cases. 
When  cloud  on  title  may  be  removed  in  equity. 

Cited  in  Verdin  v.  St.  Louis,  131  Mo.  80,  33  S.  W.  480.  holding  that  equity  will 
entertain  suit  to  cancel  tax  bills  void  on  their  face  (distinguished  in  dissenting 
opinion)  ;  Longwell  v.  Kansas  City,  69  Mo.  App.  185,  holding  that  equity  will 
remove  cloud  created  by  judgment,  void  for  want  of  notice;  Rogers  v.  First 
Nat.  Bank,  82  Mo.  App.  384,  holding  title  which  is  defective  on  face  of  record 
not  such  cloud  as  is  within  jurisdiction  of  equity  to  remove. 
Injunction  to  prevent  cloud  on  title. 

Cited  in  Skinker  v.  Heman,  64  Mo.  App.  448,  holding  that  equity  will  interpose 
by  injunction  to  prevent  cloud  being  cast  on  title;  Rose  v.  Trestrail,  62  Mo.  App. 
359,  holding  that  injunction  will  lie  to  prevent  work  being  done  on  street  im- 
provement, when  not  begun  until  after  contract  has  expired. 
Right   of  suitor  to   decision. 

Cited  in  State  ex  rel.  Hadley  v.  Standard  Oil  Co.  218  Mo.  389,  116  S.  W.  902, 
holding  that  a  party  is  entitled  to  relief  claimed  or  an  adjudication  of  why 
redress  is  denied  him. 

3  L.  R.  A.  482,  FRINK  v.  SOUTHERN  EXP.  CO.  82  Ga.  33,  8  S.  E.  862. 
Recovery   against    surety   of   penalty    and    interest. 

Cited  in  Whereatt  v.  Ellis,  103  Wis.  355,  74  Am.  St.  Rep.  865,  79  N.  W.  416, 
holding  recovery  on  bond  may  include  both  penalty  and  interest;  United  States 
Fidelity  &  G.  Co.  v.  American  Blower  Co.  41  Ind.  App.  626.  84  N.  E.  555, 
holding  a  surety  liable  for  interest  upon  a  delayed  claim  for  materials  furnished 


3  L.R.A.  482]  L.  R.  A.  CASLS  AS  AUTHORITIES.  524 

to  the  principal;  McDonald  v.  Loewen,  145  Mo.  App.  59,  130  S.  W.  52,  holding 
sureties  on  attachment  bond  liable  for  interest  from  date  action  was  commenced. 

Cited  in  notes    (8  L.  R.  A.  486)    on  what,  essential  to  bind  surety  on  bond; 
(9  L.  R.  A.  353)    on  liability  of  surety  or  guarantor;    (55   L.  R.   A.   385)    on 
penalty  as  limit  of  liability  on  statutory  bond. 
Liability  of  agent   for  negligence. 

Cited  in  Cave  v.  Lougee,  134  Ga.  136,  67  S.  E.  667,  holding  agent  liable  for 
money  lost  through  his  failure  to  use  ordinary  care. 
Admissibility  of  declarations  of  agents. 

Cited  in  note  (131  Am.  St.  Rep.  321)  on  admissibility  of  declarations  and 
acts  of  agents. 

3  L.  R.  A.  486,  BLACKSTONE  v.  STANDARD  LIFE  &  ACCI.  INS.  CO.  74  Mich. 

592,  42  N.  W.  156. 
Causes  of  death  avoiding  policy. 

Cited  in  Sherar  v.  Prudential  Ins.  Co.  63  Neb.  536,  56  L.  R,  A.  614,  88  N.  \V. 
687,  holding  stipulation  against  liability  in  case  of  death  by  suicide  relieves 
insurer,  though  insured  insane ;  Knapp  v.  Order  of  Pendo,  36  Wash.  607,  79  Pac. 
209;  Tuttle  v.  Iowa  State  Traveling  Men's  Asso.  132  Iowa,  654,  7  L.R.A.(N.S.) 
223,  228,  104  N.  W.  1131, — holding  death  from  suicide  which  springs  from  an 
insane  impulse  of  a  disordered  or  insane  mind  is  through  external  violent  and 
accidental  means  within  meaning  of  an  accident  policy. 

Cited  in  notes  (6  L.  R.  A.  496)  on  death  caused  by  crime;  (13  L.  R.  A.  838) 
on  death  resulting  from  violation  of  law;  (30  L.  R.  A.  207)  on  intentional 
injuries  avoiding  policy;  (3  L.  R.  A.  443)  on  conditions  in  accident  insurance 
policy;  (35  L.  R.  A.  259,  261,  265)  on  insanity  as  affecting  condition  against 
suicide;  (17  L.  R.  A.  754)  on  proximate  cause  of  death  within  meaning  of 
life  policy;  (1  L.R.A.  (N.S.)  423)  on  injury  to  insured  by  own  act  while  asleep 
as  an  accident;  (7  L.R.A. (N.S.)  223)  on  suicide  as  death  through  external, 
violent,  and  accidental  means;  (14  Eng.  Rul.  Gas.  23;  84  Am.  St.  Rep.  544,  546, 
548,  549)  on  self-destruction  as  defense  to  life  insurance. 
Avoidance  of  policy  for  concealment  of  facts. 

Cited  in  note  (6  Eng.  Rul.  Cas.  833)  on  avoidance  of  insurance  contract 
for  failure  of  insured  to  disclose  all  material  facts. 

3  L.  R.  A.  497,  CALLAHAM  v.  ROBINSON,  30  S.  C.  249,  9  S.  E.  120. 
Dower. 

Cited  in  Hiers  v.  Gooding,  43  S.  C.  434,  21  S.  E.  310,  holding  annuity  made 
a  charge  on  entire  property  not  repugnant  to  claim  of  dower;  Sumerel  v.  Suinerel, 
34  S.  C.  89,  12  S.  E.  932,  holding  provisions  of  will  not  repugnant  to  claim 
of  dower;  Latta  v.  Brown,  96  Tenn.  348,  31  L.  R.  A.  842,  34  S.  W.  417,  holding 
devisees  must  contribute  to  make  up  share  of  devisee  disappointed  by  widow 
electing  dower;  Bannister  v.  Bannister.  37  S.  C.  534,  16  S.  E.  612,  holding  that 
provisions  of  will  were  intended  to  be  in  lieu  of  dower;  Otts  v.  Otts,  80  S.  C.  19, 
61  S.  E.  109,  holding  a  devise  of  a  small  tract  of  land  "for  life  or  widowhood" 
not  to  bar  dower  in  other  large  tracts  of  land;  Scott  v.  Vaughn.  83  S.  C.  365, 
65  S.  E.  269,  holding  same  where  testator  divided  his  property  into  two  parts 
and  made  ample  provision  for  wife  out  of  one. 

Cited  in  footnotes  to  Youmans  v.  Wagener,  3  L.  R.  A.  447.  which  holds  inchoate 
dower  right  merged  in  fe^  of  land  conveyed  to  wife  by  purchaser  at  execution 
sale  against  husband:  Tart  v.  Burch,  6  L.  R.  A.  371.  which  holds  ineffectual, 
release  of  dower  to  one  Slaving  no  title;  Tripp  v.  Nobles,  67  L.R.A.  449.  which 
holds  widow  offering  for  probate  and  undertaking  to  carry  out  as  administratrix 


525  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  507 

with  the  will  annexed,  husband's  will  devising  her  own  land  to  her  for  life  with 
remainder  over  and  an  additional  sum  of  money  estopped  to  assert  her  absolute 
title  to  the  land. 

Cited  in  notes  (18  L.  R.  A.  79)  on  power  of  husband  or  his  creditors  to  defeat 
wife's  right  of  dower;  (13  L.R.A.  442)  on  bar  of  inchoate  right  of  dower;  (92 
Am.  St.  Rep.  697)  on  widow's  election  between  will  and  dower  or  community 
property;  (10  Eng.  Rul.  Cas.  349)  on  necessity  of  election  between  devise 
and  dower. 

3  L.  R.  A.  503,  IMPERIAL  REF.  CO.  v.  WYMAN,  38  Fed.  Rep.  574. 
Pleading   citizenship. 

Cited  in  Foster  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  56  Fed.  436,  holding  that 
allegation  of  citizenship  in  complaint,  uncontroverted  by  pleading  or  proof,  must 
stand  as  alleged. 
Jurisdiction. 

Cited  in  Terry  v.  Davy,  46  C.  C.  A.  143,  107  Fed.  52,  holding  plea  in  abatement 
to  jurisdiction  properly  submitted  to  jury  as  separate  issue;  Desert  King  Min. 
Co.  v.  \Yedekind,  110  Fed.  877,  holding  want  of  jurisdiction  cannot  be  raised  by 
motion  except  where  it  appears  on  face  of  complaint;  National  Masonic  Acci. 
Asso.  v.  Sparks,  28  C.  C.  A.  402,  49  U.  S.  App.  681,  83  Fed.  227,  holding  general 
denial  without  proper  averments  does  not  raise  question  of  jurisdiction;  Hill  v. 
Walker,  92  C.  C.  A.  633,  167  Fed.  244,  250,  holding  that  question  of  jurisdiction: 
of  Federal  court  cannot  be  tried  under  a  general  denial. 
Federal  court  practice. 

Cited  in  Virginia  v.   Felts,   133   Fed.  90,  holding  where  case  is  removed  to 
federal  court  issues  of  fact  should  be  tried  by  jury  subject  to  right  to  direct  a 
verdict. 
Limited   partnership. 

Cited  in  Spencer  Optical  Mfg.  Co.  v.  Johnson,  53  S.  C.  536,  31  S.  E.  392,  holding' 
statutory  condition  precedent  to  formation  of  limited  partnerships  must  be 
strictly  complied  with. 

Cited  in  footnotes  to  State,  Tide  Water  Pipe  Co.,  Prosecutor,  v.  State  Board. 
27  L.  R.  A.  684.  which  holds  limited  partnership  a  corporation  for  purpose  of 
taxation:  Edwards  v.  Warren  Linoline  &  Gasoline  Works,  38  L.  R.  A.  791,  which 
holds  partnership  association  organized  under  laws  of  Pennsylvania  regarded  aa 
partnership  instead  of  corporation  in  Massachusetts. 

Cited  in  note   (8  L.  R.  A.  713)  on  limited  partnerships. 

Distinguished  in  Youngstown  Coke  Co.  v.  Andrews  Bros.  Co.  79  Fed.  672, 
holding  limited  partnership  associations  within  jurisdiction  of  Federal  courts. 

3  L.  R.  A.  507,  BRADLEY  v.  BRIGHAM,  149  Mass.  141,  21  N.  E.  301. 
Election    of   remedies. 

Cited  in  Clare  v.  Xew  York  &  X.  E.  R.  Co.  172  Mass.  214,  51  N.  E.  1083, 
holding  separate  actions  upon  alternative,  but  not  inconsistent,  remedies,  fol 
personal  injury,  cannot  be  prosecuted  at  same  time;  Riley  v.  Hale.  158  Mass. 
245.  33  X.  E.  491,  holding  that  lessor  cannot  treat  lease  as  valid  for  collection 
of  rent,  and  invalid  as  to  implied  covenant  for  quiet  enjoyment:  O'Meara  v. 
McDennott,  43  Mont.  106,  115  Pac.  912,  holding  that  bringing  of  action  as 
partner  for  accounting,  in  which  court  held  that  plaintiff  was  not  partner  but 
employee,  does  not  bar  action  as  employee. 

Cited  in  note   (22  Am.  St.  Rep.  564)   on  collusiveness  of  judgment. 

Distinguished    in    Johnson-Brinkman    Commission    Co.    v.    Missouri    P.    R.    Co. 


3  L.R.A.  507]  L.  R.  A.  CASES  AS  AUTHORITIES.  526 

126  Mo.  349,  26  L.  R.  A.  842,  47  Am.  St.  Rep.  675,  28  S.  W.  870,  holding  vendoi 
bringing  attachment  against  vendee  not  estopped  from  bringing  replevin  for 
goods,  after  dismissal  of  attachment. 

3  L.  R.  A.  508,  KYTE  v.  COMMERCIAL  UNION  ASSUR.  CO.  149  Mass.  116, 

21  N.  E.  361. 
Increase   of   risk   avoiding1   policy   of   insurance   against    flre. 

Cited  in  Standard  Life  &  Acci.  Ins.  Co.  v.  Martin,  133  Ind.  380,  33  N.  E.  105, 
holding  parties  may  contract  that  forbidden  hazard  shall  avoid  policy,  or  that 
increase  of  hazard  shall  diminish  amount  of  insurance;  Davis  v.  J5tna  Mut.  F. 
Ins.  Co.  67  N.  H.  340,  39  Atl.  902,  holding  any  fact  material  to  risk,  which 
increases  danger  of  loss  and  would  influence  taking  of  risk  or  amount  of  pre- 
mium to  be  charged,  avoids  policy;  Wainer  v.  Milford  Mut.  F.  Ins.  Co.  153 
Mass.  339,  11  L.  R.  A.  600,  26  N.  E.  877,  holding  policy  may  become  void  upon 
premises  remaining  vacant  thirty  days;  Norwaysz  v.  Thuringia  Ins.  Co.  204  111. 
346,  68  N.  E.  551,  holding  storage  of  gasoline,  other  than  in  place  where  policy 
permits,  violation  of  policy;  Shutts  v.  Milwaukee  Mechanics'  Ins.  Co.  359  Mo. 
App.  439,  141  S.  W.  15,  holding  that  removal  of  household  goods  to  another 
building  did  not  ipso  facto  avoid  policy,  but  gave  insurer  right  to  forfeit  policy, 
which  right  was  waived. 

Cited  in  notes  in   (16  Am.  St.  Rep.  449;   66  Am.  St.  Rep.  694,  695)    on  what 
.constitutes  an  increase  of  hazard. 
—  Effect   on   loss   immaterial. 

Cited  in  Martin  v.  Capital  Ins.  Co.  85  Iowa,  651,  52  N.  W.  534,  holding  that 
.if  unauthorized  use  of  premises  increases  risk,  it  is  immaterial  whether  such 
use  contributed  to  loss;  Turnbull  v.  Home  F.  Ins.  Co.  83  Md.  321,  34  Atl.  875, 
holding  it  immaterial,  under  condition  that  keeping  of  prohibited  article  on 
premises  will  avoid  policy,  that  same  was  not  cause  of  fire;  Imperial  F.  Ins. 
Co.  v.  Coos  County,  151  U.  S.  469,  38  L.  ed.  238,  14  Sup.  Ct.  Rep.  379,  holding 
that  breach  of  condition  that  mechanics  shall  not  be  employed  in  altering  or 
repairing  avoids  policy,  although  fire  not  caused  thereby. 
Where  breach  not  existing  at  time  of  loss. 

Cited  in  Hill  v.  Middlesex  Mut.  Assur.  Co.  174  Mass.  545,  55  N.  E.  319, 
holding  policy  may  be  avoided  for  past  breach  of  condition  not  contributing  to 
loss;  Hoover  v.  Mercantile  Town  Mut.  Ins.  Co.  93  Mo.  App.  118,  69  S.  W.  42, 
holding  breach  of  condition  subsequent  vitiates  policy,  though  breach  may  not 
continue  up  to  time  of  loss;  Georgia  Home  Ins.  Co.  v.  Rosenfield,  37  C.  C.  A.  105, 
95  Fed.  366,  holding,  under  condition  that  other  insurance  will  avoid  policy,  that 
same  is  not  revived  on  expiration  of  additional  insurance,  unless  by  consent 
of  insurer;  Sumter  Tobacco  Warehouse  Co.  v.  Phoenix  Assur.  Co.  76  S.  C.  80, 
10  L.R.A.(N.S.)  741,  121  Am.  St.  Rep.  941,  56  S.  E.  654,  11  A.  &  E.  Ann.  Gas. 
780,  holding  a  temporary  increase  of  hazard  which  ceases  before  loss  will  not 
prevent  recovery;  Port  Blakely  Mill  Co.  v.  Springfield  F.  &  M.  Ins.  Co.  59 
Wash.  522,  28  L.R.A.(N.S.)  604,  140  Am.  St.  Rep.  863,  110  Pac.  36  (dissenting 
opinion),  on  avoidance  of  policy  by  temporary  breach  by  insured  of  warranty 
to  keep  sprinkler  system  in  order. 

Cited  in  footnote  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds  policy 
on  all  personalty,  without  specifying  it,  avoided  by  transfer  of  title,  only  as  to 
property  encumbered  at  time  of  loss. 

Cited  in  notes  (10  L.R.A.  (N.S.)  737)  on  effect  of  temporary  condition  ceasing 
before  loss,  under  general  provision  against  increase  of  risk,  or  specific  provision 
against  certain  conditions;  (80  Am.  St.  Rep.  309)  on  revival  of  forfeited  insur- 
ance by  discontinuance  of  cause  of  forfeiture  before  loss. 


327  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  510 

3   L.   R.   A.   510,   STATE   ex  rel.   CLAPP  v.   MINNESOTA  THRESHER   MFG. 

CO.  40  Minn.  213,  41  N.  W.  1020. 
Right    to   trial   by   jury. 

Cited  in  Atty.-Gen.  v.  Sullivan,  163  Mass.  452,  28  L.  R.  A.  457,  40  N.  E.  843, 
holding  proceeding  by  quo  warranto  to  try  title  to  office  not  triable  to  jury; 
State  ex  rel.  Mullen  v.  Doherty,  16  Wash.  385,  58  Am.  St.  Rep.  39,  47  Pac.  958, 
and  Schmidt  v.  Schmidt,  47  Minn.  453,  50  N.  W.  598,  holding  article  of  Consti- 
tution providing  for  trial  by  jury  in  all  cases  at  law  merely  continues  right  as 
it  existed  in  territory  at  adoption  of  Constitution;  Koeper  v.  Louisville,  109 
Minn.  522,  ]24  N.  W.  218,  holding  defendant  not  entitled  to  jury  trial  in  action 
to  compel  it  to  close  opening  in  bank  of  lake,  to  restrain  it  from  flooding  plain- 
tiff's land  and  for  incidental  damages;  State  ex  rel.  Gates  v.  Standard  Oil  Co. 
120  Tenn.  124,  110  S.  W.  565,  on  right  to  jury  trial  in  quo  warranto  proceedings; 
State  v.  Strasburg,  60  Wash.  115,  32  L.R.A.(N.S.)  1218,  110  Pac.  1020,  Ann. 
Cas.  1912B,  917,  holding  that  attempt  to  deprive  one  accused  of  crime  of  defense 
of  insanity  is  ineffectual  under  constitutional  guaranty  of  trial  by  jury. 

Cited  in  note  (24  L.  R.  A.  807)  on  right  to  jury  in  quo  warranto  proceeding. 
Corporations;    forfeiture   of   charter. 

Cited  in  State  ex  rel.  Childs  v.  American  Sav.  &  L.  Asso.  64  Minn.  357,  67 
N.  W.  1,  holding  acts  amounting  to  clear  violation  of  conditions  upon  which 
franchise  granted  justifies  action  by  state  to  enjoin  use;  State  ex  rel.  Johnson 
v.  Southern  Bldg.  &  L.  Asso.  132  Ala.  56,  31  So.  375,  holding  abuse  must  be 
wilful,  continued,  and  relate  to  essence  of  franchise,  and  it  must  appear  no 
adequate  relief  obtainable  in  any  other  mode;  State  ex  rel.  Atty.  Gen.  v.  Twin 
Village  Water  Co.  98  Me.  230,  56  Atl.  763,  holding  that  nonuser  of  electric  light 
franchise,  through  people's  lack  of  desire  for  such  light,  not  warrant  revocation; 
Attorney  General  v.  New  York,  N.  H.  &  H.  R.  Co.  197  Mass.  197,  83  N.  E.  408, 
on  restraining  a  corporation  for  exercise  of  powers  not  authorized  by  its  charter. 

Cited  in  footnote  to  State  ex  rel.  Sheets  v.  Mt.  Hope  College  Co.  52  L.  R.  A.  365, 
which  authorizes  dissolution  of  educational  institution  for  sale  of  diplomas  with- 
out regard  to  merit. 

Cited    in    notes    (9    L.    R.    A.    35-37)    on   forfeiture   of    corporate    franchise; 
(9  L.R.A.  275)    on  dissolution   of  corporations;    (8   Am.   St.  Rep.   182)    on  for- 
feiture  of  corporate  franchises;    (70  Am.  St.  Rep.  178)    on  doctrine  that  only 
state  may  raise  question  of  ultra  vires. 
Misnser   must    threaten    substantial    injury   to    public. 

Cited  in  People  ex  rel.  Union  P.  R.  Co.  v.  Colorado  Eastern  R.  Co.  8  Colo. 
App.  307,  46  Pac.  219,  holding  that  to  justify  proceedings  by  quo  warranto 
against  corporation  it  must  appear  public  interests  affected. 

Cited  in  note   (7  L.  R.  A.  319)   on  quo  warranto  for  illegal  exercise  of  corpo- 
rate franchise. 
Limitation   upon   business   of   corporation;    nature   of   corporate   business. 

Cited  in  Williams  v.  Citizens'  Enterprise  Co.  25  Ind.  App.  357,  57  N.  E.  581, 
holding  statute  authorizing  incorporation  for  several  kinds  of  business,  stated 
in  disjunctive,  not  authority  for  incorporation  for  all  purposes  named;  Burke  v. 
Mead,  159  Ind.  261,  64  N.  E.  880,  holding  power  to  manufacture  and  sell  electrical 
supplies  not  incident  to  power  to  sell  electricity  for  heat  and  light;  Marion  Bond 
Co.  v.  Mexican  Coffee  &  Rubber  Co.  160  Ind.  562,  65  N.  E.  748,  denying  that 
specification  of  some  unauthorized  powers  renders  legality  of  organization  subject 
to  collateral  attack;  Minneapolis  &  St.  P.  Suburban  R.  Co.  v.  Manitou  Forest 
Syndicate,  101  Minn.  145,  112  N.  W.  13,  holding  the  real  character  of  a  cor- 
poration must  be  determined  from  those  portions  of  its  articles  of  association 


3  L.R.A.  510]  L.  R.  A.  CASES  AS  AUTHORITIES.  528 

expressing  the  nature  and  scope  of  its  business;  International  Boom  Co.  v.  Rainy 
Lake  River  Boom  Corp.  97  Minn.  519,  107  N.  W.  735,  holding  it  cannot  be  made 
one  kind  of  corporation  merely  by  being  labeled  as  such,  if  its  declared  objects 
show  it  to  be  something  else;  Hamilton  Nat.  Bank  v.  American  Loan  &  T.  Co. 
66  Xeb.  77,  92  N.  W.  189,  holding  a  corporation  doing  a  general  banking  business 
was  a  bank  and  liable  as  such  though  it  designated  itself  in  the  articles  filed 
as  a  "Loan  and  Trust  Company." 
Purchase  by  corporation  of  its  own  stock. 

Cited  in  note  (61  L.  R.  A.  625)  on  right  of  corporation  to  purchase  its  own 
shares  of  stock. 

Distinguished   in  Lowe   v.   Pioneer   Threshing   Co.   70   Fed.   647,   holding  that 
purchase  by   corporation  of  its  own   stock,  by  transfer  of  nearly  entire  assets, 
although  with  consent  of  majority  stockholders,  will  be  enjoined  as  instance  of 
minority  stockholders. 
What   is   corporate   franchise. 

Cited  in  Maestri  v.  Board  of  Assessors,  110  La.  526,  34  So.  658,  holding  that 
grant  of  exclusive  privilege  to  build  and  rent  market  place  for  twenty-five  years, 
then  convey  to  city,  constitutes  franchise. 

Cited  in  footnote  to  Spring  Valley  Waterworks  v.  Barber,  21  L.  R.  A.  416, 
which  denies  right  to  franchise  tax  against  water  company  in  county  where  it 
has  only  water  pipe  and  right  of  way. 
Personal   liability   of   stockholders    for   corporate   debts. 

Cited  in  Arthur  v.  Willius,  44  Minn.  415,  46  N.  W.  851,  holding  Constitution 
excepting  stockholders  of  manufacturing  and  mechanical  corporations  from  indi- 
vidual liability  applies  only  to  corporations  organized  exclusively  for  those 
purposes;  Mohr  v.  Minnesota  Elevator  Co.  40  Minn.  346,  41  N.  W.  1074,  holding 
stockholders  in  elevator  company  not  brought  within  exception  to  rule  of  per- 
sonal liability  by  denominating  organization  to  be  for  manufacturing  purposes; 
St.  Paul  Barrel  Co.  v.  Minneapolis  Distilling  Co.  62  Minn.  449,  64  N.  W.  1143, 
holding  corporation  organized  not  only  to  distill  and  manufacture,  but  also  to 
buy  and  sell,  liquors,  not  within  exception  to  constitutional  provision;  Nicollet 
Xat.  Bank  v.  Frisk-Turner  Co.  71  Minn.  418,  70  Am.  St.  Rep.  334,  74  N.  W.  160, 
holding  purpose  of  constitutional  provision  exempting  stockholders  is  to  encourage 
manufacturing;  Willis  v.  Mabon,  48  Minn.  149,  16  L.  R.  A.  284,  31  Am.  St.  Rep 
626,  50  N.  W.  1110,  holding  that  Const,  art.  10,  §  3,  making  stockholders  in  cor 
poration  liable  for  corporate  debts  to  amount  of  stock  held,  is  self-executing: 
First  Nat.  Bank  v.  Converse,  200  U.  S.  435,  50  L.  ed.  540,  26  Sup.  Ct.  Rep.  306, 
holding  it  must  appear  that  the  Minnesota  corporation  was  organized  for  the 
exclusive  purpose  of  engaging  in  manufacturing  or  the  double  liability  of  stock- 
holders would  result;  Merchants'  Xat.  Bank  v.  Minnesota  Thresher  Mfg.  Co. 
90  Minn.  147,  95  N.  W.  767,  holding  its  purpose  must  so  appear  or  its  stock- 
holders are  not  within  the  exception  to  the  general  rule  of  constitutional  liability 
for  the  debts  of  the  corporation ;  Converse  v.  Aver,  197  Mass.  452,  84  N.  E.  98 : 
Bernheimer  v.  Converse,  206  U.  S.  524,  51  L.  ed.  1172,  27  Sup.  Ct.  Rep.  755  — 
holding  the  Minnesota  thresher  manufacturing  company  is  not  a  manufacturing 
or  mechanical  corporation  within  the  exception  as  to  stockholders  liability;  Con- 
verse v.  JEtna,  Nat.  Bank,  79  Conn.  169,  64  Atl.  341,  7  A.  &  E.  Ann.  Cas.  75, 
holding  shareholders  in  the  Minnesota  Thresher  Manufacturing  Co.  subject  to 
a  double  liability,  as  the  company  was  not  incorporated  solely  for  manufacturing 
purposes. 
Corporations  exempt  fro..-,  taxation. 

Cited  in  Detroit  Home  &  Day  School  v.  Detroit,  76  Mich.  534,  6  L.  R.  A.  101, 


529  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  521 

43   N".   W.   593    (dissenting  opinion),   majority   holding  educational   corporation 
within  statute  exempting  "scientific  institutions"  from  taxation. 
Remedy  against   unauthorized  exercise   of  powers. 

Cited  in  footnote  to  Guillotte  v.  Poincy,  5  L.  R.  A.  403,  which  holds  disputed 
title  to  office  cannot  be  determined  by  injunction. 

Cited  in  note  (8  L.  R.  A.  229)  on  trial  of  title  to  office. 
Nature  of  Code  remedy  in  nature  of  QUO  warranto. 

Cited  in  State  ex  rel.  Young  v.  Kent,  96  Minn.  270,  1  L.R.A.(N.S.)    834,  104 
X.  W.  948,  6  A.  &  E.  Ann.  Gas.  905,  holding  the  information  in  the  nature  of 
quo  warranto  as  it  exists  in  Minnesota  is  substantially  that  known  in  England 
after  the  enactment  of  Statute  of  Anne. 
Original  jurisdiction  conferrable  on  Supreme  Court. 

Cited  in  Painter  v.  United  States.  6  Ind.  Terr.  514,  98  S.  W.  352,  on  juris- 
diction given  appellate  courts  over  original  remedial  writs;  Lauritsen  v.  Seward, 
99  Minn.  322,  109  N.  W.  404,  holding  the  cases  intended  by  the  term  "remedial 
cases"  are  those  where  the  remedy  is  afforded  summarily  through  certain  extra- 
ordinary writs. 
Validity  of  purchase  of  corporation  stock  frith  assets  of  corporation. 

Cited  in  Edmunds  v.  Illinois  C.  R.  Co.  2  111.  C.  C.  483,  holding  the  buying 
by  one  corporation  of  stock  of  another  corporation  is  not  malum  in  se. 

3  L.  R.  A.  519,  VANCLEAVE  v.  CLARK,   118  Ind.  61,  20  N.  E.  527. 
Contract   for  hoard  and  care. 

Cited  in  Maxwell  v.  Burton,  3  Ind.  App.  425,  29  N.  E.  943,  holding  that  con- 
tract must  furnish  measure  of  compensation  notwithstanding  subsequent  change 
in  conditions  increasing  burden;  Davidson  v.  Smith,  18  Pa.  Dist.  R.  713,  36  Pa. 
Co.  Ct.  351,  on  the  disfavor  with  which  courts  view  contracts  upon  condition 
of  subsequent  support  and  maintenance  and  holding  that  recovery  for  breach 
must  be  limited  to  actual  loss  sustained  notwithstanding  terms. 

Cited  in  footnote  to  Tuttle  v.  Burgett,  30  L.  R.  A.  214,  which  upholds  mort- 
gagee's right  to  claim  support,  under  mortgage,  at  any  reasonable  place. 

Cited   in  note    (14   L.R.A. (N.S.)    538)    on   right  of   one   breaking  contract  to 
support  another  to  recover  on  quantum  meruit. 
Contracts   for   heiiefit   of   third   party. 

Cited  in  Case  v.  Case,  137  App.  Div.  396,  121  N.  Y.  Supp.  746,  holding  that 
son  conveying  property  received  from  mother  to  his  brother  on  his  promise  to 
mother  to  support  her  can  maintain  action  against  brother  for  his  failure  to 
support  mother. 

Cited  in  notes    (25  L.R.A.  261)    on  right  of  third  party  to  sue  upon  contract 
made  for  his  benefit;    (71  Am.  St.  Rep.  205)   on  same  point. 
Appeal;   presumptions. 

Overruled  in  effect  in  State  v.  Winstandley,.  151  Ind.  498,  51  N.  E.  1054, 
holding  that  when  all  instructions  are  not  in  record,  erroneous  instruction  was 
presumably  withdrawn  by  another. 

3  L.  R.  A.  521,  HULL  v.  YOUNG,  30  S.  C.  121,  8  S.  E.  695. 
Partner's    power    to    bind    firm. 

Cited  in  Pollock  v.  Jones,  61  C.  C.  A.  558,  124  Fed.  166,  denying  firm  bound 
by   one   partner's  unauthorized  execution   of   sealed  vote:    Ex  parte  Wilson,   84 
S.  C.  450,  66  S.  E.  675,  .to  point  that  note  of  partnership  signed  by  a   single 
member  thereof  is  customary  and  presumptively   authorized. 
L.R.A.  Au.  Vol.  I.— 34. 


3  L.R.A.  521]  L.  R.  A.  CASES  AS  AUTHORITIES.  530 

Cited  in  note  (17  L.R.A. (N.S.)  970,  972)  on  power  of  partner  to  bind  firm 
by  note  or  bill  under  seal. 

Disapproved  in  Merchants'  &  F.  Bank  v.  Johnston,  130  Ga.  666,  17  L.R.A. 
(N.S.)  974,  61  S.  E.  543,  14  A.  &  E.  Ann.  Cas.  546,  holding  that  one  member 
•of  a  commercial  firm,  can  bind  it  by  the  signing  its  name  to  a  promissory  note 
under  seal  in  the  course  of  the  business  of  the  partnership. 

3  L.  R.  A.  523j  SEYK  v.  MILLERS'  NAT.  INS.  CO.  74  Wis.  67,  41  N.  W.  443. 
Liability    for    loss    on    policy. 

Cited  in  MacKinnon  v.  Mutual  F.  Ins.  Co.  83  Wis.  19,  53  N.  W.  19,  holding 
•company  liable  for  loss  occurring  within  limit  allowed  for  payment,  after  notice 
of  unpaid  assessment;  Johnston  v.  Phelps  County  Farmers'  Mut.  Ins.  Co.  63 
Neb.  25,  56  L.  R.  A.  129,  88  N.  W.  142,  holding  that  no  forfeiture  arises  from 
nonpayment  of  assessment  after  loss;  Sanford  v.  Royal  Ins.  Co.  11  Wash.  673, 
40  Pac.  609,  holding  that  release  of  entire  claim  for  part  only,  is  without  con- 
sideration, after  loss  has  been  adjusted,  if  there  is  no  bona  fide  ground  for  dis- 
puting company's  liability. 

Cited  in  note   (63  L.  R.  A.  866)   on  conflict  of  laws  as  to  valued  polices  of  in- 
surance. 
Applicability    of    insurance    statutes    to    foreign    policies. 

Cited  in  Stanhilber  v.  Mutual  Mill  Ins.  Co.  76  Wis.  291,  45  N.  W.  221,  hold- 
ing Wisconsin  rule  as  to  indorsement  of  copy  of  application  on  policy  applies 
to  foreign  policies  on  property  in  state. 
Total    destruction    of    insured    building. 

Cited  in  Dick  v.  Equitable  F.  &  M.  Ins.  Co.  92  Wis.  54,  65  N.  W.  742,  hold- 
ing evidence  sufficient  to  show  building  totally  destroyed  for  all  practical  or 
useful  purposes;  Pennsylvania  F.  Ins.  Co.  v.  Drackett,  63  Ohio  St.  56,  81  Am. 
St.  Rep.  608,  57  N.  E.  962;  Northwestern  Mut.  L.  Ins.  Co.  v.  Rochester  German 
Ins.  Co.  85  Minn.  55,  56  L.  R.  A.  Ill,  88  N.  W.  265;  Lindner  v.  St.  Paul  F.  & 
M.  Ins.  Co.  93  Wis.  533,  67  N.  W.  1125, — holding  loss  of  building  total  where  its 
identity  as  building  is  destroyed;  St.  Clara  Female  Academy  v.  Northwestern 
Nat.  Ins.  Co.  98  Wis.  267,  67  Am.  St.  Rep.  805,  73  N.  W.  770,  holding  destruc- 
tion leaving  nothing  but  foundation  walls,  total;  Temple  v.  Niagara  F.  Ins.  Co. 
109  Wis.  375,  85  N.  W.  361,  holding  it,  under  Wisconsin  statutes,  optional  with 
insurer  to  rebuild  or  replace  property  totally  destroyed;  German  Ins.  Co.  v. 
Eddy,  36  Neb.  466,  19  L.  R.  A.  709,  54  N.  W.  856,  holding  loss  total  when 
structure  is  totally  destroyed  as"  a  building;  O'Keefe  v.  Liverpool,  L.  &  G.  Ins. 
•Co.  140  Mo.  565,  39  L.  R.  A.  820,  41  S.  W.  922,  holding  destruction  of  building, 
except  foundation  and  upper  part  of  one  wall,  total  loss;  Royal  Ins.  Co.  v. 
Mclntyre,  90  Tex.  178,  35  L.  R.  A.  676,  59  Am.  St.  Rep.  797,  37  S.  W.  1068, 
holding  no  total  loss  if  remnant  may  reasonably  be  used  as  basis  for  restoring 
building;  Corbett  v.  Spring  Garden  Ins.  Co.  155  N.  Y.  394,  41  L.  R.  A.  320,  50 
N.  E.  282,  holding  not  a  total  loss  where  walls  and  foundations  remain  prac- 
tically intact;  Palatine  Ins.  Co.  v.  Weiss,  109  Ky.  468,  59  S.  W.  509,  holding 
that  total  loss  occurs  when  building  unsafe  and  has  to  be  torn  down;  Rogers 
v.  Connecticut  F.  Ins.  Co.  157  Mo.  App.  682,  139  S.  W.  265,  holding  engine  and 
dynamo  in  electric  light  plant  a  total  loss,  where  they  were  so  badly  damaged 
as  to  be  valueless  for  use  as  integral  part  of  plant;  Reed  v.  Firemen's  Ins.  Co. 
81  N.  J.  L.  531,  35  L.R.A.(N.S.)  348,  80  Atl.  462,  holding  that  appropriation 
by  owner  of  proceeds  of  sale  of  debris  would  not  invalidate  insurance  of  mortgage. 

Cited  in  footnotes  to  German  Ins.  Co.  v.  Eddy,  19  L.  R.  A.  707,  which  holds 
loss  total  where  all  combustible  material  in  building  destroyed;  Daggs  v.  Orient 
Jns.  Co.  35  L.  R.  A.  227,  which  upholds  statute  requiring  payment  of  full 


531  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  528 

•amount  of  policy  on  total  loss;  Royal  Ins.  Co.  v.  Mclntyre,  35  L.  R.  A.  672, 
which  holds  that  no  total  loss  results  while  remnant  of  building  remains,  rea- 
sonably adapted  for  use  in  restoring  building;  Corbett  v.  Spring  Garden  Ins. 
•Co.  41  L.  R.  A.  318,  which  denies  liability  on  policy  insuring  against  total  de- 
struction of  building,  which  could  be  repaired  for  one  third  its  value;  Thur- 
ingia  Ins.  Co.  v.  Malott,  55  L.  R.  A.  277,  which  holds  total  loss  to  be  such  in- 
jury as  to  destroy  identity  and  specific  character  of  building  as  such;  North- 
western Mut.  L.  Ins.  Co.  v.  Rochester  German  Ins.  Co.  56  L.  R.  A.  108,  which 
holds  no  "total  loss"  of  building  if  remnant  remains  reasonably  adapted  for 
use;  Hartford  Fire  Ins.  Co.  v.  Redding,  67  L.R.A.  518,  which  upholds  statute 
requiring  insurer  to  fix  insurable  value  of  property  and  state  the  same  in  the 
policy  and  making  measure  of  damages  in  case  of  total  loss  the  amount  so  fixed. 

Cited  in  notes   (56  L.R.A.  787)   on  constructive  total  loss  of  insured  building; 
(59  Am.  St.  Rep.  811)    as  to  when  property  is  "wholly  destroyed"  or  a  "total 
loss"  within  meaning  of  insurance  policy. 
Stipulations   as  affecting  statutory  rights. 

Cited  in  Pennsylvania  F.  Ins.  Co.  v.  Drackett,  63  Ohio  St.  54,  81  Am.  St. 
Rep.  608,  52  N.  E.  962,  holding  consent  to  arbitration  not  a  waiver  of  right 
to  recover  for  total  loss  under  statute;  Havens  v.  Germania  F.  Ins.  Co.  123  Mo. 
420,  26  L.  R.  A.  Ill,  45  Am.  St.  Rep.  570,  27  S.  W.  718,  holding  stipulations  of 
insurance  policy  must  yield  to  statutes;  Sachs  v.  London  &  L.  F.  Ins.  Co.  113 
Ky.  95,  67  S.  W.  23,  holding  company  liable  for  full  extent  of  damage  though  re- 
quired amount  of  insurance  not  maintained. 

Cited  in  footnote  to  Gibbs  Brewing  Co.  v.  De  France,  28  L.  R.  A.  386,  which 
holds  agreement  to  return  or  pay  for  barrels,  etc.,  in  which  beer  shipped  con- 
trary to  law  unenforceable. 
Submission   to  arbitration. 

Cited  in  Montgomery  v.  American  Cent.  Ins.  Co.  108  Wis.  157,  84  N.  W.  175, 
holding  independent  agreement  for  appraisal  of  loss  valid. 

Cited  in  note    ( 10  L.  R.  A.  559 )    on   submission  to  arbitration   as  condition 
precedent  to  action  on  fire  insurance  policy. 
Answers  in  application  for  policy. 

Cited  in  footnote  to  Union  Cent.  L.  Ins.  Co.  y.  Pollard,  36  L.  R.  A.  271,  as 
to  law  governing  effect  of  answers  in  application  for  policy,  and  their  use  in 
evidence. 
Transfer    of    title. 

Cited  in  footnote  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds 
policy   on   all    personalty,   without   specifying   it,   avoided   by    transfer   of   title, 
only  as  to  property  encumbered  at  time  of  loss. 
Statute   of   frauds. 

Cited  in  note   (19  L.  R.  A.  792)   on  conflict  of  laws  as  to  statute  of  frauds. 
Kiiv.'t  of  valued  policy  law. 

Cited  in  Ritchie  County  Bank  v.  Fireman's  Ins.  Co.  55  W.  Va.  277,  47  S.  E. 
D4,  holding  that  all  provisions  of  a  policy  in  conflict  with  a  valued  policy  statute 
are  void. 

3  L.  R.  A.  528,  PRINCE  GEORGE'S  COUNTY  v.  LAUREL,  70  Md.  443,  17  Atl. 

388. 
Imposition  of  debt  upon  taxpayers. 

Cited  in  McClelland  v.  State,  138  Ind.  338,  37  N.  E.  1089,  holding  legisla- 
ture cannot  impose  upon  taxpayers  burden  of  reimbursing  public  officer  for  loss 
<of  school  moneys  not  raised  by  taxation. 


H  L.R.A.  528]  L.  R.  A.  CASES  AS  AUTHORITIES.  532 

Inequality  of  taxation. 

Cited  in  Schley  v.  Lee,  106  Md.  402,  67  Atl.  252,  sustaining  right  to  limit 
taxation  of  certain  property  where  public  policy  requires  it;  Curtis  v.  Mactier, 
115  Md.  396,  80  Atl.  1066,  holding  void,  act  denying  village  power  to  tax  certain 
part  of  its  territory. 

3  L.  R.  A.  529,  PATTERSON  v.  HAYDEN,   17  Or.  238,   11   Am.  St.  Rep.  822, 

21  Pac.   129. 
Reformation  as  affecting:   ivommrs  chastity. 

Cited  in  Norton  v.  State,  72  Miss.  135,  48  Am.  St.  Rep.  538,  16  So.  264,  hold- 
ing woman  who  has  fallen   and  reformed,  chaste  within   meaning   of   seduction 
statutes. 
Seduction. 

Cited  in  Robinson  v.  Powers,  129  Ind.  482,  28  N.  E.  1112,  upholding  instruc- 
tion that  seduction  is  defined  by  the  law  books  in  certain  words,  the  definition 
being  correct;  Stowers  v.  Singer,  113  Ky.  589,  68  S.  W.  637,  holding  that  se- 
duction implies  use  of  artifice  or  promises  to  chaste  woman;  Ireland  v.  Ward, 
51  Or.  103,  93  Pac.  932,  holding  that  to  "seduce"  a  female  is  to  use  some  influ- 
ence, promise  or  means  which  induces  her  to  surrender  her  chastity:  Salchert  v. 
Reinig,  135  Wis.  206,  115  N.  W.  132,  holding  no  seduction  where  party  was  hav- 
ing intercourse  at  intervals  prior  to  promise  of  marriage;  Simmons  v.  State,  54 
Tex.  Crim.  Rep.  627,  114  S.  W.  841,  holding  under  penal  law  of  Texas  that  an 
unchaste  woman  could  not  be  seduced. 

Cited  in    note   (76  Am.  St.  Rep.  663,  664,  667,  669)   on  what  is  seduction. 
Cause  of  action. 

Distinguished  in  Anderson  v.  Aupperle,  51  Or.  559,  95  Pac.  330.  holding  that 
common  law  right  of  action  for  seduction  of  an  unmarried  female  in  name  of 
one   having   right  to   services   not  abrogated  by   a   statute  giving   father   right 
though  there  is  no  loss  of  services. 
Measure  of   damages. 

Cited  in  Gemmill  v.  Brown,  25  Ind.  App.  17,  56  N.  E.  691,  holding  that  plaintiff 
may  recover  for  anguish  of  mind  and  pains  and  suffering  of  childbirth. 
Right  of  jury  to  determine  effect  of  evidence. 

Cited  in  Messinger  v.  Union  Warehouse  Co.  39  Or.  549,  65  Pac.  808,  holding 
any  evidence,  however  slight,  tending  to  prove  fact  in  case  should  be  submitted 
to  jury. 

Cited  in  note   (14  Am.  St.  Rep.  38)   on  invasion  by  court  of  province  of  jury. 

3  L.  R.  A.  532,  ALLEN  v.  PIONEER  PRESS  CO.  40  Minn.  117,  12  Am.  St.  Rep. 

707,  41  N.  W.  936. 
Title  of  act. 

Cited  in  Ek  v.  St.  Paul  Permanent  Loan  Co.  84  Minn.  249,  87  N.  W.  844, 
and  Winters  v.  Duluth,  82  Minn.  132.  84  N.  W.  788,  holding  title  of  act  suffi- 
cient if  not  cloak  for  legislation  on  dissimilar  measures;  State  ex  rel.  Olsen  v. 
Board  of  Control,  85  Minn.  174,  88  N.  W.  533,  holding  title  of  act  should  be 
liberally  construed  to  uphold  law. 

Cited  in  notes  (19  Am.  St.  Rep.  872;  64  Am.  St.  Rep.  74,  106)   on  sufficiency 
of  title  of  statute. 
Special  or  class  legislation. 

Cited  in  Cameron  v.  Chief --o.  M.  &  St.  P.  R.  Co.  63  Minn.  388,  31  L.  R.  A. 
555,  65  N.  W.  652,  holdir.  ;  valid  law  reasonably  confined  to  particular  class, 
operating  thereon  alike  under  similar  circumstances;  Gray  v.  Minnesota  Tribune 


533  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  532 

Co.  81  Minn.  334,  84  N.  W.  113,  without  special  discussion  or  holding  on  this 
point;  Sasser  v.  Martin,  101  Ga.  456,  29  S.  E.  278,  holding  legislative  classifi- 
cation must  have  regard  to  character  of  legislation  of  which  it  is  a  feature; 
State  ex  rel.  Terre  Haute  v.  Kolsera,  130  Ind.  460,  14  L.  R.  A.  576,  29  N.  E.  595 
(dissenting  opinion),  majority  holding  courts  have  no  power  to  determine 
whether  legislative  classification  is  good  or  vicious;  Brimm  v.  Jones,  11  Utah, 
205,  29  L.  R.  A.  99,  39  Pac.  825,  upholding  law  relating  only  to  drivers  of  herds 
of  horses,  mules,  etc.;  Christy  v.  Elliott,  216  111.  41,  1  L.R.A. (N.S.)  227,  108  Am. 
St.  Rep.  196,  74  N.  E.  1035,  3  A.  &  E.  Ann.  Gas.  487 ;  State  v.  Swagerty,  203  Mo. 
525,  10  L.R.A.(N.S.)  603,  120  Am.  St.  Rep.  67,  102  S.  W.  483,  11  A.  &  E.  Ann. 
Cas.  755, — holding  a  statute  regulating  operation  and  speed  of  automobiles  on 
the  public  highways  is  not  unconstitutional  in  that  it  does  not  apply  to  all 
vehicles  used  on  the  public  highways;  State  ex  rel.  Bd.  of  Education  v.  Brown, 
97  Minn.  409,  5  L.R.A. (N.S.)  334,  106  N.  W.  477,  holding  laws  legalizing  bonds, 
voted  upon  by  cities  for  high  school  buildings  being  curative  acts  are  not  special 
legislation  and  unconstitutional;  Comer  v.  Age-Herald  Pub.  Co.  151,  Ala.  616, 
13  L.R.A.  (N.S.)  528,  44  So.  673,  holding  a  statute  not  unconstitutional  because 
it  relates  to  libel  by  newspapers  alone. 

Cited  in  notes   (15  Am.  St.  Rep.  75)   on  special  acts;    (21  Am.  St.  Rep.  785) 
on  what  is  a  general  law. 
Statutes    limiting-    recovery    for    libel. 

Cited  in  footnote  to  Osborn  v.  Leach,  66  L.R.A.  648,  which  sustains  statute 
limiting  right  to  escape  punitive  damages  for  publication  of  libel  by  retraction 
to  publishers  of  newspapers  and  periodicals. 

Cited  in  note  (15  Am.  St.  Rep.  347)  on  statutes  limiting  recovery  for  news- 
paper libel. 

Disapproved  in  effect  in  Osborn  v.  Leach,  135  N.  C.  639,  47  S.  E.  811,  sustain- 
ing statute  depriving  person  of  right  to  recover  punitive  damages  for  libel; 
Hanson  v.  Krehbiel,  68  Kan.  677,  64  L.R.A.  793,  footnote,  p.  790,  75  Pac.  1041, 
declaring  void  a  statute  denying  right  in  certain  cases  to  one  injured  in  repu- 
tation to  have  redress  by  due  process  of  law. 
Pleading-. 

Cited  in  Holston  v.  Boyle,  46  Minn.  433,  49  N.  W.  203,  holding  special  damages 
must  still  be  alleged  under  statute,  to  be  proved. 
Good    faith. 

Cited  in  Gray  v.  Times  Newspaper  Co.  74  Minn.  457,  73  Am.  St.  Rep.  363, 
77  N.  W.  204,  holding  question  of  good  faith  in  publication  of  libelous  article, 
one  for  jury;  Mattson  v.  Albert,  97  Tenn.  235,  36  S.  W.  1090,  holding  malice 
may  be  presumed  from  statements  libelous  per  se.  and  not  privileged. 

Cited  in  footnotes  to  Press  Pub.  Co.  v.  McDonald,  26  L.  R.  A.  531,  which 
authorizes  punitive  damages  for  failure  of  effort  to  verify  truth  of  libelous  dis- 
patch before  printing  in  newspaper;  Nissen  v.  Cramer.  6  L.  R.  A.  780,  which 
holds  relevant  words  spoken  by  party  to  action  during  trial  privileged. 

Cited  in  notes  (9  L.  R.  A.  621)  on  definition  of  libel;  (14  L.  R.  A.  586)  on 
unjust  discrimination. 

Distinguished  in  Post  Pub.  Co.  v.  Butler,  71  C.  C.  A.  309,  137  Fed.  727,  hold- 
ing a  statute  declaring  the  presumption  of  malice  shall  be  rebutted  by  the  pub- 
lication of  a  full  retraction,  requires  that  the  retraction  must  be  at  the  demand 
of  the  one  libeled  and  is  put  in  operation  by  such  retraction:  Gray  v.  Minne- 
sota Tribune  Co.  81  Minn.  334,  84  N.  W.  113,  holding  an  attempted  retraction 
not  in  compliance  with  the  law  was  not  a  statutory  retraction. 


3  L.R.A.  536]  L.  R.  A.  CASES  AS  AUTHORITIES.  534 

3  L.  R.  A.  536,  HAUPT'S  APPEAL,  125  Pa.  211,   17  Atl.  436. 
Riparian   right   in   stream. 

Cited  in  Clark  v.  Pennsylvania  R.  Co.  145  Pa.  449,  27  W.  N.  C.  52,  27  Am.  St. 
Rep.  710,  22  Atl.  989,  holding  railway  lias  no  right  to  materially  affect  amount 
of  water  in  stream  by  diversion  to  supply  locomotives;  Philadelphia  &  R.  R.  Co. 
v.  Pottsville  Water  Co.  182  Pa.  425,  38  Atl.  404,  Affirming  18  Pa.  Co.  Ct.  509, 
holding  lessee  of  riparian  owner  has  no  greater  right  to  use  of  water  than  les- 
sor; Lord  v.  Meadville  Water  Co.  135  Pa.  130,  8  L.  R.  A.  204,  26  W.  N.  C.  112T 
20  Am.  St.  Rep.  864,  19  Atl.  1007,  holding  rights  of  owner  of  spring  forming 
source  of  stream  only  those  of  riparian  owner;  Leavenworth  v.  Prospect  Rock 
Water  Co.  8  Kulp,  314,  holding  small  spring  sending  stream  in  well-defined 
course  across  lands  of  several  owners  not  private;  Lehigh  Coal  &  Nav.  Co.  v. 
Scranton  Gas  &  Water  Co.  6  Pa.  Dist.  R.  303,  sustaining  right  to  divert 
and  store  flood  waters;  Shippensburg  Water  Case,  21  Pa.  Co.  Ct.  89,  sustaining 
borough's  right  to  condemn  small  mountain  stream;  Wolf  v.  Crothers,  21  Pa. 
Co.  Ct.  631,  holding  stream  flowing  from  spring  through  natural  course,  a  water- 
course; Standard  Plate  Glass  Co.  v.  Butler  Water  Co.  28  Pittsb.  L.  J.  N.  S. 
166,  5  Pa.  Super.  Ct.  563,  41  W.  N.  C.  192,  holding  water  company,  which  has 
built  works  on  bank  of  stream  without  condemning  water,  liable  for  diminish- 
ing flow;  Gring  v.  Sinking  Spring  Water  Co.  7  Pa.  Super.  Ct.  68,  holding  stream 
which  crosses  highway  and  finally  flows  over  land  of  another  owner  not  pri- 
vate; Craig  v.  Shippensburg,  7  Pa.  Super.  Ct.  529,  and  Irving  v.  Media.  10  Pa. 
Super.  Ct.  145,  7  Del.  Co.  Rep.  378,  44  W.  N.  C.  134,  denying  right  of  upper 
riparian  owner  to  sell  water  to  nonriparian  owners  without  compensation  to 
lower  mill  owner;  Filbert  v.  Dechert,  22  Pa.  Super.  Ct.  366.  sustaining  right  to 
take  from  stream  water  necessary  for  wants  of  inmates  of  state  hospital :  Peo- 
ple v.  Hulbert,  131  Mich.  173,  64  L.  R.  A.  275,  91  N.  W.  211,  sustaining  right  of 
upper  riparian  owner  to  bathe  in  lake  from  which  municipality  takes  its  water 
supply;  Hunt  v.  Graham,  15  Pa.  Super.  Ct.  47,  denying  liability  for  excavating 
holes  in  navigable  river,  in  which  careless  bather  drowned;  Com.  v.  Emmers,  221 
Pa.  303,  70  Atl.  762,  33  Pa.  Super.  Ct.  157,  denying  right  of  riparian  owner  to 
discharge  impurities  from  a  mine  into  a  stream;  Lonsdale  Co.  v.  Woonsocket, 
25  R.  I.  433,  56  Atl.  448,  holding  that  a  city  has  no  right  as  against  a  lower 
proprietor  to  diminish  the  amount  of  water  by  obstructing  it  for  a  water  sup- 
ply; Stauffer  v.  East  Stroudsburg,  215  Pa.  144,  64  Atl.  411,  holding  that  a  bor- 
ough has  no  authority  to  construct  a  reservoir  to  furnish  water  to  a  railroad  for 
its  locomotives;  Octoraro  Water  Go's  Petition,  15  Pa.  Dist.  Rep.  769,  23  Lane.  L. 
Rev.  198,  holding  every  riparian  owner  is  entitled  to  the  natural  flow  of  water 
subject  to  reasonable  use  of  other  riparian  owners;  Union  Water  Co.  v.  Enter- 
prise Oil  Co.  21  Pittsb.  L.  J.  N.  S.  160,  denying  to  water  company  injunction 
restraining  oil  company  from  defiling  stream  from  which  water  company  draws 
its  water. 

Cited  in  footnotes  to  Canton  v.  Shock,  58  L.  R.  A.  637,  which  holds  city  liablt, 
to  lower  proprietor,  for  furnishing  water  to  outside  persons  for  transportation, 
or  unreasonable  amount  to  manufactures;  Fisk  v.  Hartford,  38  L.  R.  A.  474, 
which  denies  riparian  owner's  right  to  have  sewage  turned  into  stream  above 
his  mill;  Barre  Water  Co.  v.  Carnes,  21  L.  R.  A.  769,  which  holds  owner  of  fran- 
chise for  supplying  water  to  village  entitled  to  divert  sufficient  to  supply  needs, 
as  against  water  company  supplying  lower  village;  New  Whatcom  v.  Fairhavert 
Land  Co.  54  L.  R.  A.  190,  which  denies  city's  right  to  appropriate  waters  of 
navigable  lake  for  water  supply,  to  injury  of  riparian  owner. 

Cited  in  notes   (58  L.R.A.  243)  on  acquisition  of  water  supply  by  right  of  emi- 


535  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  539 

nent  domain;    (37  L.R.A. (N.S.)  312,  314)  on  right  of  government  to  divert  water 
from  nontidal  stream  without  compensation  to  riparian  owner. 

Distinguished  in  Rudolph  v.  Pennsylvania  S.   Valley  R.  Co.   186  Pa.  551,  47 
L.  R.  A.  786,  40  Atl.  1083,  14  Montg.  Co.  L.  Rep.  157,  42  W.  N.  C.  377,  holding 
riparian   right  in   waters   of   stream  .  a   property  right   for  which   compensation 
must   be  made  by  corporation   destroying  same  under   eminent  domain. 
Borongrh    act    of    1851. 

Cited  in  Nelson  v.  Warren,  200  Pa.  507,  50  Atl.  250,  holding  that  act  of  1873, 
P.  L.  547,  does  not  authorize  the  construction  of  public  waterworks  by  borough 
after  having  contracted  under  Laws  of  1851  with  private  company  for  supply. 
Right  of  municipality  to  supply  nonresident  with  water. 

Cited  in  note  (34  L.R.A. (N.S.)  542)  on  right  or  duty  of  municipality  to  sup- 
ply nonresident  with  water. 

3  L.  R.  A.  539,  WOLFE  v.  MISSOURI  P.  R.  CO.  97  Mo.  473,  10  Am.  St.  Rep. 

331,  11  S.  W.  49. 
Evidence   of   telephone   conversations. 

Cited  without  opinion  in  Logan  v.  Berkshire  Apartment  House,  3  Misc. 
301,  22  N.  Y.  Supp.  776. 

Cited  in  Shawyer  v.  Chamberlain,  113  Iowa,  744,  86  Am.  St.  Rep.  411,  84  N. 
W.  661,  and  Southwark  Nat.  Bank  v.  Smith,  21  Pa.  Co.  Ct.  6,  7  Pa.  Dist.  R. 
185,  holding  weight,  and  not  admissibility,  of  evidence  affected  by  nonidentifi- 
cation  of  voice  at  other  end  of  line;  Oskamp  v.  Gadsden,  35  Neb.  12,  17  L.  R. 
A,  442,  37  Am.  St.  Rep.  428,  52  N.  W.  718,  holding  conversation  over  telephone, 
in  which  central  operator  repeated  the  communications  to  the  party  at  the 
other  end  of  the  line,  admissible;  C.  C.  Thompson  &  W.  Co.  v.  Appleby,  5  Kan. 
App.  682,  48  Pac.  933,  and  Guest  v.  Hannibal  &  St.  J.  R.  Co.  77  Mo.  App.  261, 
holding  party  at  other  end  of  telephone  presumptively  the  one  called  for,  where 
both  parties  connect  with  same  central  office;  Merrill  v.  Southwestern  Teleg. 
&  Teleph.  Co.  31  Tex.  Civ.  App.  615,  73  S.  W.  422,  holding  overhearing  conver- 
sation as  to  mother's  death  by  one  using  line  no  proof  of  notice  of  object  of 
previous  call;  Young  v.  Seattle  Transfer  Co.  33  Wash.  231,  63  L.  R.  A.  991,  99 
Am.  St.  Rep.  942,  74  Pac.  375,  denying  company  rendered  liable  by  telephone 
statement  that  expressman  took  trunk  away;  Gilpin  v.  Savage,  60  Misc.  608,  112 
X.  Y.  Supp.  802;  Star  Bottling  Co.  v.  Cleveland  Faucet  Co.  128  Mo.  App.  523, 
309  S.  W.  802, — holding  thatr  telephone  conversations  stand  on  same  footing  as 
other  conversations  between  parties;  Conkling  v.  Standard  Oil  Co.  138  Iowa,  602, 
116  X.  W.  822;  Miller  v.  Leib,  109  Md.  425,  72  Atl.  466;  Kansas  City  Star  Pub. 
Co.  v.  Standard  Warehouse  Co.  123  Mo.  App.  18,  99  S.  W.  765;  General  Hospital 
Soc.  v.  New  Haven  Rendering  Co.  79  Conn.  583,  118  Am.  St.  Rep.  173,  65  Atl. 
1065,  9  A.  &  E.  Ann.  Cas.  168, — holding  a  telephone  communication  by  one  ap- 
parently in  charge  of  office  to  be  admissible;  Godair  v.  Ham  Nat.  Bank,  225  111. 
575,  116  Am.  St.  Rep.  172,  80  N.  E.  407,  8  A.  &  E.  Ann.  Cas.  447,  holding  same 
where  conversation  was  between  bank  and  office  in  regard  to  a  draft  in  bank; 
Western  U.  Teleg.  Co.  v.  Rowell,  153  Ala.  315,  45  So.  73,  holding  a  telephone 
communication  in  relation  to  business  to  be  admissible  though  voice  is  not  identi- 
fied; Hodges  v.  Weedon,  19  Pa.  Dist.  R.  732,  57  Pittsb.  L.  J.  615,  holding  tele- 
phone conversation  admissible,  where  person  answering  phone  said  that  he  was 
person  with  whom  witness  had  had  correspondence  concerning  claim ;  State  v. 
Vickers,  209  Mo.  31,  106  S.  W.  999;  McCarthy  v.  Peach,  186  Mass.  68,  70  N.  E. 
1029,  1  A.  &  E.  Ann.  Cas.  801, — allowing  a  witness  to  testify  as  to  what  he  heard 
another  say  over  the  telephone  where  such  other  identifies  party  to  whom  he  was 


3  L.R.A.  539]  L.  R.  A.  CASES  AS  AUTHORITIES.  53G 

talking;  American  Xat.  Bank  v.  First  Xat.  Bank,  41  Tex.  Civ.  App.  397,  92  S.  W. 
439,  holding  a  telephone  communication  to  be  admissible  though  voice  is  not 
identified  where  communication  was  probable  and  no  other  person  appeared  to 
have  any  interest  in  holding  such  communication ;  Wicks  v.  Wheeler,  157  111. 
App.  580;  Rogers  Grain  Co.  v.  Tanton,  136  111.  App.  538, — holding  the  mere  fact 
that  the  party  testifying  to  a  telephone  conversation  could  not  identify  the  voice 
of  the  person  to  whom  he  was  speaking,  does  not  render  the  conversation  incom- 
petent; Knickerbocker  Ice  Co.  v.  Gardiner  Dairy  Co.  107  Md.  571.  16  L.R.A. 
(N.S.)  757,  69  Atl.  405,  holding  communication  by  telephone  admissible  though 
voice  is  not  recognized  where  party  called  for  a  corporation  and  was  informed 
that  he  was  talking  to  it  and  received  a  product  mamifactured  by  it  which  was 
then  ordered;  Barrett  v.  Magner,  105  Minn.  121,  127  Am.  St.  Rep.  531,  117  N. 
W.  245,  holding  telephone  communication  admissible  where  identity  is  estab- 
lished with  reasonable  certainty  by  recognition  of  voice  or  other  circumstances: 
Young  v.  Seattle  Transfer  Co.  33  Wash.  231,  63  L.R.A.  988,  99  Am.  St.  Rep.  942. 
74  Pac.  375,  holding  that  the  receiving  of  possession  of  a  trunk  by  a  storage 
•company  is  not  shown  by  a  response  to  a  telephone  message  where  voice  is  not 
recognized  or  identity  shown;  Gilliland  v.  Southern  R.  Co.  85  S.  C.  36,  27  L.R.A. 
(N.S.)  1111,  137  Am.  St.  Rep.  861,  67  S.  E.  20,  holding  one  who  answers  a  tele- 
phone call  from  the  place  of  business  of  a  person  called  for  and  undertakes  to 
respond  as  agent  is  presumed  to  speak  for  him. 

Cited  in  notes  (17  L.R.A.  440)  on  evidence  of  conversations  by  telephone; 
<6  L.R.A. (N.S.)  1181,  1185)  on  necessity  and  sufficiency  of  identification  as  foun- 
dation for  admission  of  communication  by  telephone;  (10  Am.  St.  Rep.  135:  127 
Am.  St.  Rep.  539,  541,  543,  545.  547,  552,  554,  555)  on  law  of  telephone  as  ap- 
plied to  contracts  and  evidence. 

Distinguished  in  Rueckheim  Bros.  v.  Service  Ice  Cream  &  Candy  Co.  146  111. 
App.   610,   holding   an  unidentified   telephone  call   inadmissible   where   it  is   not 
shown  to  be  connected  with  place  of  business. 
Shipper's  title. 

Cited  in  Davis  v.  Jacksonville  S.  E.  Line,  126  Mo.  77,  28  S.  W.  965,  holding 
allegation  of  possession  by  shipper  sufficient  allegation  of  ownership  to  sustain 
action  against  carrier  for  failure  to  deliver. 

Cited  in  footnote  to  Carter  v.  Southern  R.  Co.  50  L.  R.  A.  354,  which  sustains 
agent's  right  to  bring  action  in  own  name  against  carrier  for  breach  of  contract 
to  ship  goods. 

Cited  in  note   (26  L.R.A. (N.S.)   439)  on  right  of  one  to  whom  goods  consigned 
for  sale,  to  maintain  action  for  damages  or  loss  during  transit. 
Delivery  to  owner. 

Cited  in  Shellenberg  v.  Tremont.  E.  &  M.  Valley  R.  Co.  45  Neb.  491,  50  Am. 
St.  Rep.  561,  63  X.  W.  859,  holding  delivery  to  owner  excuses  failure  to  deliver 
to  consignee;  National  X'ewark  Bkg.  Co.  v.  Delaware  L.  &  W.  R.  Co.  70  N.  J.  L. 
779,  66  L.R.A.  598,  103  Am.  St.  Rep.  825,  58  Atl.  311,  holding  delivery  of  goods 
to  true  owner  though  not  consignee  relieves  carrier  from  liability. 

Cited  in  notes  (38  L.  R.  A.  358)  as  to  whom  may  delivery  be  made  under  bill 
of  lading;  (37  L.R.A.  178)  on  delivery  to  impostor  by  carrier;  (12  L.R.A.  (N.S.) 
259)  on  duty  of  carrier  to  recognize  demands  of  stranger  on  property  delivered 
for  transportation;  (33  L.R.A. (N.S.)  686)  on  right  of  bailee  to  assert  against 
bailor  defense  of  surrender  of  property  to  true  owner;  (34  Am.  St.  Rep.  732, 
734)  on  right  of  common  carrier  to  deliver  property  to  true  owner. 
Status  of  factor. 

Cited  in  Beardsley  v.  Schmi  It.  120  Wis.  409,  102  Am.  St.  Rep.  991,  98  N.  W. 
235,  holding  that  factor  to  be  a  trustee  of  an  express  trust. 


537  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  545 

Judicial  notice  of  scientific  facts. 

Cited  in  note  (124  Am.  St.  Rep.  32)   on  judicial  notice  of  scientific  facts. 

3  L.  R.  A.  542,  SAVILLE  v.  J5TNA  INS.  CO.  8  Mont.  419,  20  Pac.  646. 

Followed  without  opinion   in  Saville  v.  London  &  L.   Fire  Ins.   Co.   8  Mont. 

431,  20  Pac.  650. 
When   action    on   adjustment    may    be    sustained. 

Cited  in  Stockton  Combined  Harvester  &  Agri.  Works  v.  Glenn's  Falls  Ins.  Co. 
98  Cal.  569,  33  Pac.  633,  denying  right  to  recover  in  action  on  promise  to  pay 
proportionate  share  of  loss,  where  no  promise  to  make  such  payment  was  made. 
Effect  of  additional  insurance. 

Cited  in  footnote  to  Sweeting  v.  Mutual  F.  Ins.  Co.  32  L.  R.  A.  570,  which  holds 
earlier  insurance  policy  not  avoided  by  subsequent  insurance  invalid  because 
of  former  policy. 

Cited  in  notes  (15  L.R.A.  128)  on  what  constitutes  double  insurance  for  pur- 
pose of  apportionment  of  loss;  (36  L.R.A. (N.S.)  351)  on  applicability  of  pro- 
vision for  prorating  where  other  policy  invalid. 

3  L.  R.  A.  545,  HUSKINS  v.  CINCINNATI,  N.  O.  &  T.  P.  R.  CO.  37  Fed.  504, 
Removal   of  canse   to   Federal   court. 

Cited  in  footnote  to  McDermott  v.  Chicago  &  N.  W.  R.  Co.  3  L.  R.  A.  455,  which 
holds  amount  in  controversy  not  element  in  determining  removability  for  preju- 
dice. 

Cited  in  notes  (9  L.  R.  A.  232;  11  L.  R.  A.  571,  572)  on  removal  of  cause  for 
local  prejudice. 

—  After  amendment   of  complaint. 

Cited  in  Yarde  v.  Baltimore  &  O.  R.  Co.  57  Fed.  915,  holding  defendant  en- 
titled to  removal  where  amendment  increasing  damages  confers  right  not  pre- 
viously existing,  although  time  within  which  properly  asked  after  filing  original 
complaint  has  elapsed;  Mattoon  v.  Reynolds,  62  Fed.  417,  holding  right  to  exist 
on  amendment  of  suit  for  injunction,  by  court  for  damages  by  reason  of  fraud; 
Cookerly  v.  Great  Northern  R.  Co.  70  Fed.  278,  holding  amendment  of  complaint 
by  discontinuance  against  resident  parties  and  continuance  against  foreign  party 
entitles  latter  to  removal  within  time  to  answer  after  discontinuance  as  to  resi- 
dent parties. 

Cited  in  footnote  to  Herndon  v.  JEtna  F.  Ins.  Co.  10  L.  R.  A.  53,  which  holds 
defective  petition  for  removal  of  cause  not  aided  by  allegations  of  complaint  as 
to  residence. 

Distinguished  in  Texas  v.  Day  Land  &  Cattle  Co.  49  Fed.  595,  holding  amend- 
ment of  proceeding  to  recover  penalty  by  addition  of  count  for  civil  damages  does 
not,  under  penal  proceedings,  subject  to  removal  to  Federal  court. 
Sufficiency  of  affidavit. 

Cited  in  Amy  v.  Manning,  38  Fed.  536,  holding  insufficient  an  affidavit  on  be- 
lief of  party  seeking  removal,  without  disclosing  facts  showing  existence  of  preju- 
dice or  local  influence:  Cooper  v.  Richmond  &  D.  R.  Co.  8  L.  R.  A.  367,  42  Fed. 
698,  holding  sufficient  affiant's  statement  of  positive  knowledge  of  prejudice; 
Walcott  v.  Watson,  46  Fed.  531,  holding  sufficient  affidavit  setting  out  facts  con- 
stituting prejudice. 

—  Xotice  of  application  for. 

Cited  in  Bonner  v.  Meikle,  77  Fed.  488,  and  Reeves  v.  Corning,  51  Fed.  778, 
holding  notice  not  essential  to  jurisdiction  to  grant  motion,  though  better  prac- 
tice; Carson  &  R.  Lumber  Co.  v.  Holtzclaw,  39  Fed.  886,  holding  affidavits  by 


3  L.R.A.  545]  L.  R.  A.  CASES  AS  AUTHORITIES.  538 

plaintiff   admissible   to   controvert   allegations   of  petition   filed   ex  parte  before 
granting  order. 

Finality   of  ex   parte   order. 

Cited  in  Ellison  v.  Louisville  &  N.  11.  Co.  50  C.  C.  A.  530,  112  Fed.  806,  hold- 
ing subject  to  revision  upon  seasonable  application  of  plaintiff  thereafter  contest- 
ing allegations  of  petitions  on  which  granted. 

3  L.  R.  A.  549,  MONROE  v.  HANNAN,  7  Mackey,  197. 
Classes  of  persons  protected  by  mechanics'  lien  law. 

Cited  in  Leitch  v.  Central  Dispensary  &  E.  Hospital,  6  App.  D.  C.  252,  hold- 
ing material  man  contracting  with  subcontractor  not  entitled  to  lien;  Nixon  v. 
Cydon  Lodge,  K.  of  P.  56  Kan.  305,  43  Pac.  236,  holding  only  subcontractors  con- 
tracting with  original  contractor  within  protection  of  statute. 

Cited  in  footnote  to  Hightower  v.  Bailey,  49  L.  R.  A.  255,  which  sustains  lien 
to  subcontractors  or  material  men,  irrespective  of  notice  of  claim  or  state  of 
account  between  owner  and  principal  contractor. 

Disapproved  in  Fruin-Bambrick  Constr.  Co.  v.  Jones,  60  Mo.  App.  8,  holding 
material  men  furnishing  material  to   subcontractor  entitled  to  lien. 
Rights  of  lien  claimants  controlled  hy  contract  with   owner. 

Cited  in  Herrell  v.  Donovan,  7  App.  D.  C.  342,  holding  rights  of  subcon- 
tractors governed  by  terms  of  contract  with  owner. 

Distinguished  in  Stephens  v.  Duffy,  41  Ind.  App.  390,  83  N.  E.  268,  holding,  on 
rehearing,  that  the  servant  of  a  subcontractor  as  well  as  the  independent  con- 
tractor from  a  subcontractor  are  entitled  to  lien  for  labor  performed  upon  build- 
ing under  state  statute. 

3  L.  R.  A.  554,  STATE  v.  CHICAGO,  B.  &  Q.  R.  CO.  37  Fed.  497. 
Removal  of  causes;  pleadings. 

Cited  in  footnote  to  Herndon  v.  ..Etna  F.  Ins.  Co.  10  L.  R.  A.  53,  which  holds 
petition  for  removal  of  cause  not  aided  by  allegations  as  to  residence  in  com- 
plaint. 

Cited  in  note  (5  L.  R.  A.  476)  on  removal  of  causes. 
Action    to    recover    penalty    under    state    statute. 

Followed  in  Arkansas  v.  St.  Louis  &  S.  F.  R.  Co.  173  Fed.  574,  holding  an  action 
to  recover  penalty  for  violation  of  any  rule  made  by  the  railroad  and  warehouse 
commission,  was  a  criminal  action  and  not  removable. 

Cited  in  Indiana  use  of  Delaware  County  v.  Alleghany  Oil  Co.  85  Fed.  873,  and 
Huntington  v.  Attrill,  146  U.  S.  673,  36  L.  ed.  1130,  13  Sup.  Ct.  Rep.  224,  holding 
circuit  court  cannot  entertain  suit  to  recover  penalty  imposed  by  way  of  punish- 
ment for  violation  of  state  statute;  Texas  v.  Day  Land  &  Cattle  Co.  41  Fed.  230, 
holding  action  to  recover  penalty  for  unlawful  herding  and  grazing  not  remov- 
able; Gruetter  v.  Cumberland  Teleph.  &  Teleg.  Co.  181  Fed.  252,  holding  that 
action  by  individual  to  recover  penalty  against  telephone  company  for  discrimi- 
nation in  service  is  civil  action  and  removable. 

Distinguished  in  United  Breweries  Co.  v.  Colby,  170  Fed.  1011,  holding  that 
under  a  statute  giving  the  person  a  right  of  action  to  recover  money  paid  for 
intoxicating  liquors,  such  action  is  not  criminal  and  the  circuit  court  has  juris- 
diction. 
Action  to  recover  penalty  not  civil. 

Cited  in  United  States  v.  Mexican  Nat.  R.  Co.  40  Fed.  771,  holding  action  to 
recover  penalty  not  within  statute  giving  circuit  court  original  cognizance  of 
all  suits  of  civil  nature  involving  certain  amount. 


539  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  559 

3  L.  R.  A.  559,  HUSSEY  v.  COGER,  112  N.  Y.  614,  8  Am.  St.  Rep.  787,  20  X. 

E.  556. 
Liability  for  injury  caused  by  negligence. 

Cited  in  Perry  v.  Rogers  157  N.  Y.  256,  51  N.  E.  1021  holding  master  aot  liable 
for  injury  due  to  falling  of  ledge  of  rock,  weakened  by  blasting;  Mancuso  v. 
Cataract  Constr.  Co.  87  Hun,  521,  34  N.  Y.  Supp.  273,  nor  for  injury  due  to 
accidental  ignition  of  unexploded  blast;  Collins  v.  Crimmins,  11  Misc.  27,  31 
X.  Y.  Supp.  860,  nor  for  injury  due  to  falling  bank  of  earth,  master  having  fur- 
nished safe  tools;  Fannessey  v.  Western  U.  Telegraph  Co.  6  Misc.  324,  20  N.  Y. 
Supp.  796,  nor  for  injury  to  servant  struck  by  brick  from  properly  constructed 
chute;  Hogan  v.  Smith,  31  N.  Y.  S.  R.  801,  9  N.  Y.  Supp.  881,  holding  it  a  ques- 
tion for  jury  whether  master  had  furnished  reasonably  safe  place  for  servants; 
Ballard  v.  Hitchcock  Mfg.  Co.  71  Hun,  589,  24  N.  Y.  Supp.  1101,  holding  it  a 
question  for  jury  whether  boiler  explosion  was  due  to  master's  negligence; 
Hackett  v.  Masterson,  88  App.  Div.  75,  84  N.  Y.  Supp  751,  denying  master's  liabil- 
ity where  servant  failed  to  use  all  of  adequate  appliance  furnished  to  lay  pipe; 
McLaine  v.  Head  &  D.  Co.  71  N.  H.  296,  58  L.  R.  A.  463,  93  Am.  St.  Rep.  522,  52 
Atl.  545,  holding  foreman's  failure  to  warn  laborer  in  trench  of  dumping  of 
earth,  not  breach  of  duty  to  provide  safe  place;  Southern  Indiana  R.  Co.  v.  Har- 
rell,  161  Ind.  698,  63  L.  R.  A.  466,  62  X.  E.  262,  holding  foreman  of  bridge  gang 
does  not  represent  master  when  disobeying  broad  instructions  not  to  raise  stones 
when  train  passing.  J 

Cited  in  note  (10  Am.  St.  Rep.  835)  on  duty  to  supply  safe  machinery,  etc.,  for 
servants. 
Of  coservant. 

Cited  in  Filbert  v.  Delaware  &  H.  Canal  Co.  121  N.  Y.  212,  23  N.  E.  1104, 
holding  master  not  liable  for  injury  to  servant  due  to  coservant's  negligent  re- 
moval of  planks  from  pit;  McCampbell  v.  Cunard  S.  S.  Co.  144  N.  Y.  557,  39  X. 
E.  637,  nor  for  injury  due  to  coservant's  negligence  in  fastening  skid  to  dock; 
Kimmer  v.  Weber,  151  N.  Y.  422,  56  Am.  St.  Rep.  630,  45  N.  E.  860,  nor  for  in- 
jury due  to  defective  scaffolding,  built  by  servants  from  suitable  materials; 
Stewart  v.  New  York  O.  &  W.  R.  Co.  28  N.  Y.  S.  R.  217,  8  N.  Y.  Supp.  19,  nor 
for  injury  due  to  negligence  of  servants  in  thawing  out  dynamite  cartridges; 
Mahoney  v.  Vacuum  Oil  Co.  76  Hun,  583,  28  N.  Y.  Supp.  196,  nor  for  injury  due 
to  breaking  of  planks  placed  over  hole  in  floor  by  coservant;  Griffiths  v.  New 
Jersey  &  X.  Y.  R.  Co.  5  Misc.  322,  25  N.  Y.  Supp.  812,  nor  for  injury  due  to 
breaking  of  obviously  defective  beam  selected  and  put  in  place  by  servant  and 
fellow  workmen;  Hutchinson  v.  Charles  F.  Parker  &  Co.  39  App.  Div.  137,  57 
X.  Y.  Supp.  168,  nor  for  injury  due  to  striking  unexploded  dynamite  cartridge 
with  pick  by  servant's  coemployee;  Schott  v.  Onondaga  County  Sav.  Bank,  49 
App.  Div.  505.  63  X.  Y.  Supp.  631,  nor  for  injury  due  to  coservant's  negligence 
in  dumping  dirt,  although  foreman  promised  to  give  warning  of  danger;  Bate- 
man  v.  Xew  York  C.  &  H.  R.  R.  Co.  178  N.  Y.  89,  70  N.  E.  109,  reversing  67  App. 
Div.  244,  73  N.  Y.  Supp  390,  holding  it  question  for  jury  whether  failure  to  put 
liinges  on  trap  door  was  negligence;  O'Brien  v.  Buffalo  Furnace  Co.  68  App.  Div. 
457,  73  N.  Y.  Supp.  830,  nor  for  injury  to  servant  uninformed  of  danger,  due  to 
negligence  of  experienced  coservant;  Schaub  v.  Hannibal  &  St.  J.  R.  Co.  106  Mo. 
89.  16  S.  W.  924,  nor  for  injury  to  brakeman  through  trainman's  negligence; 
Hanna  v.  Granger,  18  R.  I.  512,  28  Atl.  659,  nor  for  injury  due  to  negligent 
starting  of  engine  by  coservant;  Deep  Min.  &  Drainage  Co.  v.  Fitzgerald,  21  Colo. 
543,  43  Pac.  210,  Ell  v.  Northern  P.  R.  Co.  1  N.  D.  352,  12  L.  R.  A.  102,  26  Am. 
St.  Rep.  621,  48  N.  W.  222,  holding  liability  of  mrrter  for  injury  to  servant 
through  negligence  of  coservant  does  not  depend  upon  relative  ranks  of  the  two 


L 

3  L.R.A.  559]  L.  R.  A.  CASES  AS  AUTHORITIES.  540 

servants;  Vogel  v.  American  Bridge  Co.  88  App.  Div.  70,  84  N.  Y.  Supp.  799, 
holding  foreman  of  bridge  gang  and  "boss  of  job,"  with  power  to  hire  and  dis- 
charge, not  fellow  servant;  Peet  v.  H.  Remington  &  Son  Pulp  &  Paper  Co.  86 
App.  Div.  105,  83  N.  Y.  Supp.  524,  holding  servant's  failure  to  close  opening 
through  which  logs  thrown  into  grinding  room,  causing  injury,  act  of  fellow 
servant;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Foland,  174  Ind.  419,  92  N.  E.  165, 
holding  that  foreman  of  railroad  bridge  gang  in  ordering  stays  removed  from  tops 
of  piling  acted  merely  as  superior  fellow  servant;  Dair  v.  New  York  &  P.  R.  S.  S. 
Co.  204  N.  Y.  349,  40  L.R.A.(N.S.)  923,  97  N.  E.  711,  holding  that  act  of  foreman 
in  transferring  to  other  work  some  of  men  furnished  by  master  to  load  vessel 
was  act  of  fellow  servant;  Stauber  v.  McEntee,  29  Jones  &  S.  340,  19  X.  Y.  Supp. 
900,  on  the  liability  of  master  for  negligent  acts  of  fellow  servant;  Standard  Pot- 
tery Co.  v.  Moudy,  35  Ind.  App.  435,  73  N.  E.  188,  holding  master  not  liable  for 
injuries  to  servant  by  negligence  of  fellow  servant;  Connolly  v.  North  Jersey 
Street  R.  Co.  76  N.  J.  L.  4,  69  Atl.  487 ;  Koszlowski  v.  American  Locomotive  Co.  96 
App.  Div.  42,  89  N.  Y.  Supp.  55;  Miller  v.  American  Bridge  Co.  216  Pa.  563,  65 
Atl.  1109;  Shaw  v.  New  Year  Gold  Mines  Co.  31  Mont.  149,  77  Pac.  515, — holding 
master  not  liable  for  injuries  where  by  the  negligence  of  the.  servants  the  place 
of  working  is  made  unsafe;  Haskell  &  B.  Car  Co.  v.  Przezdziankowski,  170  Ind. 
10,  14  L.R.A.(N.S.)  977,  127  Am.  St.  Rep.  352,  83  N.  E.  626,  holding  same,  and 
the  master  is  not  negligent  in  not  providing  a  man  to  warn  servants  of  such 
dangers  as  are  not  reasonably  to  be  apprehended;  Gila  Valley,  G.  &  N.  R.  Co. 
v.  Lyon,  8  Ariz.  128,  71  Pac.  957,  on  the  same  point. 

Cited  in  footnotes  to  Byrnes  v.  New  York,  L.  E.  &  W.  R.  Co.  4  L.  R.  A.  151, 
which  holds  station  agent  and  brakeman  fellow  servants;  St.  Louis,  I.  M.  &  S. 
R.  Co.  v.  Rice,  4  L.  R.  A.  173,  which  holds  yard  inspector  and  yard  foreman  fel- 
low servants;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Blohn,  4  L.  R.  A.  764,  which  holds  loco- 
motive engineer  and  fireman  fellow  servants;  Wischam  v.  Rickards,  10  L.  R.  A. 
97,  which  holds  factory  employee  assisting  servants  of  one  delivering  fly-wheel, 
servant  of  latter;  Daniel  v.  Chesapeake  &  O.  R.  Co.  16  L.  R.  A.  383,  which  holds 
conductor  and  brakeman  on  different  trains  not  fellow  servants;  Palmer  v.  Michi- 
gan C.  R.  Co.  17  L.  R.  A.  637,  which  holds  assistant  roadmaster  not  fellow  ser- 
vant of  gang  of  men  working  under  him. 

Cited  in  notes  (4  L.  R.  A.  794,  795;  5  L.  R.  A.  735;  7  L.  R.  A.  503)  on  who 
are  fellow  servants. 

Distinguished  in  Wooden  v.  Western  New  York  &  P.  R.  Co.  43  N.  Y.  S.  R.  220, 
16  N.  Y.  Supp.  840,  holding  master  liable  to  servant  for  negligence  of  coservant 
in  letting  train  down  grade  by  gravity;  Bagley  v.  Consolidated  Gas.  Co.  13  Misc. 
8,  34  N.  Y.  Supp.  187,  holding  master  liable  for  falling  upon  servant  of  plank 
dislodged  from  scaffold  by  hoisting  of  tank. 
Of  foreman. 

Cited  in  Quigley  v.  Levering,  167  N.  Y.  64,  54  L.  R.  A.  74,  60  N.  Y.  276,  hold- 
ing master  not  liable  for  injury  due  to  foreman's  failure  to  have  madiim  TV 
oiled;  Jenkinson  v.  Carlin,  10  Misc.  23,  30  N.  Y.  Supp.  530,  nor  for  injury  due 
to  failure  of  foreman  to  see  that  check  rope  was  attached  to  derrick:  Miller  v. 
Thomas,  15  App.  Div.  107,  44  N.  Y.  Supp.  277,  nor  for  injury  due  to  undermining 
of  coal  upon  which  servant  was  at  work  under  foreman;  Vitto  v.  Keogan,  15 
App.  Div.  331,  44  N.  Y.  Supp.  1,  nor  for  injury  due  to  failure  of  foreman  to  tell 
servant  that  hole  directed  to  be  cleaned  contained  dynamite;  Ulrich  v.  New  York 
C.  &  H.  R.  R.  Co.  25  App.  Div.  4(>°..  51  N.  Y.  Supp.  5,  nor  for  injury  due  to  mis- 
judgment  of  competent  foreman  as  to  detail  of  work;  Brown  v.  Terry,  67  App. 
Div.  227,  73  N.  Y.  Sup.  733,  nor  for  injury  due  to  falling  of  ventilator  upon 
which  servant  was  working  under  directions  of  competent  foreman;  O'Connall 


541  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  559 

v.  Thompson-Starrett  Co.  72  App.  Div.  52,  76  N.  Y.  Supp.  296,  nor  for  failure 
of  competent  foreman  to  furnish  sufficient  number  of  men  provided  by  master  for 
the  work;  O'Brien  v.  American  Dredging  Co.  53  N.  J.  L.  297,  21  Atl.  324,  nor 
for  injury  due  to  negligence  of  foreman,  of  workmen  with  whom  he  labors; 
Illinois  C.  R.  Co.  v.  Bolton,  99  Tenn.  277,  41  S.  W.  442,  nor  for  injury  to  section 
hand  through  negligence  of  section  foreman  engaged  at  the  time  as  a  fellow 
laborer;  Geesen  v.  Saguin,  115  Iowa,  10,  87  N.  W.  745,  nor  for  injury  due  to 
negligence  of  foreman  at  a  guy  rope  in  pulling  down  pile;  McLaine  v.  Head  & 
D.  Co.  71  N.  H.  296,  58  L.  R.  A.  463,  52  Atl.  545,  nor  for  injury  due  to  foreman's 
failure  to  give  warning  of  danger;  Cullen  v.  Norton,  24  N.  Y.  S.  R.  103,  5  N.  Y. 
Supp.  523,  holding  question  whether  injury  was  caused  by  coservant's  negligence 
for  jury;  Cullen  v.  Norton,  126  N.  Y.  7,  26  N.  E.  905,  Reversing  29  N.  Y.  S.  R. 
701,  9  N.  Y.  Supp.  174,  holding  master  not  liable  for  killing  laborer  by  blast 
through  negligence  of  foreman;  Simone  v.  Kirk,  57  App.  Div.  465,  67  N.  Y.  Supp. 
1019,  holding  master  not  liable  to  servant  working  under  foreman's  directions, 
for  undermining  a  pile  of  ballasting  material;  Korber  v.  J.  Ottman  Lithographing 
Co.  49  Misc.  463,  97  N.  Y.  Supp.  1044,  holding  that  the  failure  of  defendant's  fore- 
man to  hold  the  ladder  on  which  plaintiff  was  working  was  an  act  of  a  fellow 
servant  for  which  the  master  was  not  liable;  Tivnan  v.  Keahon,  117  App.  Div. 
54,  101  N.  Y.  Supp.  1076  (dissenting  opinion),  on  the  liability  of  master  for  negli- 
gent acts  of  foreman. 

Cited  in  note  (40  L.R.A.  (N.S.)  919)  on  liability  of  master  for  foreman's 
failure  to  designate  enough  hands  to  perform  work. 

Distinguished  in  Hatton  v.  Hilton  Bridge  Const.  Co.  42  App.  Div.  402,  59  N. 
Y.  Supp.  272,  holding  master  liable  for  injury  to  servant  due  to  foreman's  failure 
to  carry  out  master's  instructions  as  to  construction  of  scaffold. 
Of    superintendent. 

Cited  in  Meeker  v.  C.  R.  Remington  &  Son  Co.  53  App.  Div.  598,  65  N.  Y. 
JSupp.  1116,  holding  master  not  liable  for  injury  due  to  negligent  opening  of 
steam  valve  by  master's  superintendent;  Stockmeyer  v.  Reed,  55  Fed.  261,  nor 
for  injury  due  to  negligence  of  master's  superintendent  in  pounding  and  prying 
upon  rock  in  stone  quarry;  Mast  v.  Kern,  34  Or.  250,  75  Am.  St.  Rep.  580,  54 
Pac.  950,  nor  for  injury  caused  by  master's  superintendent  prematurely  ordering 
powder  placed  in  hole. 
—  Of  vice  principal. 

Cited  in  notes  (51  L.  R.  A.  518,  529,  561,  594,  617)  on  vice  principalship  con- 
sidered with  reference  to  superior  rank  of  negligent  servant;  (54  L.  R.  A.  61, 
111,  117,  118,  121)  on  vice  principalship  as  determined  with  reference  to  char- 
acter of  act  causing  injury;  (4  L.  R.  A.  852)  on  master's  liability  for  negligence 
of  superior  servant;  (11  Am.  St.  Rep.  596)  on  liability  of  master  for  negligence 
of  subordinate  to  whom  he  intrusts  entire  charge  of  his  business;  (75  Am.  St. 
Rep.  587,  589,  590,  603,  634,  637)  on  who  is  a  vice  principal. 

Distinguished  in  Taylor  v.  Evansville  &  T.  H.  R.  Co.  121  Ind.  126,  6  L.  R.  A. 
586,  16  Am.  St.  Rep.  372,  22  N.  E.  876,  holding  master  liable  where  negligence 
was  act  of  master's  representative. 
Assumption   of   risk   by   employee. 

Cited  in  Brunell  v.  Southern  P.  Co.  34  Or.  264,  56  Pac.  129,  holding  negli- 
gence of  coservant  one  of  risks  servant  assumes. 

Cited  in  note  (5  L.  R.  A.  792)  on  assumption  of  risk  of  employment  by  volun- 
teer. 


3  L.R.A.  563]  L.  R.  A.  CASES  AS  AUTHORISES,  542 

3  L.  R.  A.  563,  COX  v.  PEARCE,  112  M.  Y.  637,  20  N.  E.  566. 
Xotice  to  agent. 

Cited  in  Fulton  v.  Metropolitan  L.  Ins.  Co.  47  N.  Y.  S.  R.  112,  19  N.  Y.  Supp. 
660,  Affirming  1  Misc.  479,  21  N.  Y.  Supp.  470,  holding  insurance  company  charge- 
able with  agent's  knowledge  of  failure  of  applicant  to  comply  with  application 
rules;  American  Cent.  Ins.  Co.  v.  Hagerty,  92  Hun,  31,  36  N.  Y.  Supp.  558,  21 
Misc.  218,  79  N.  Y.  S.  R.  621,  45  N.  Y.  Supp.  617,  holding  notice  to  general  agent 
of  insurance  company  notice  to  company;  Weber  v.  Germania  F.  Ins.  Co.  16 
App.  Div.  600,  44  N.  Y.  Supp.  976,  holding  evidence  showing  notice  to  insurance 
agent  during  negotiations  for  insurance  sufficient  to  go  to  jury  on  such  question; 
Lockwood  v.  Dillenbeck,  104  App.  Div.  76,  93  N.  Y.  Supp.  321;  Gardner  v.  Pitcher, 
109  App.  Div.  109,  95  N.  Y.  Supp.  678, — holding  notice  to  agent  of  rejection  of 
claim  in  probating  an  estate  is  notice  to  the  principal;  Robertson  Lumber  Co.  v. 
Anderson,  96  Minn.  530,  105  X.  W.  972;  Straus,  G.  &  Co.  v.  Sparrow,  148  X.  C. 
313,  62  S.  E.  308, — holding  notice  to  agent  of  retirement  of  partner  was  notice 
to  principal,  when  acquired  within  the  course  of  his  agency;  Jenkins  Bros.  Shoe 
Co.  v.  Renfrew,  151  N.  C.  326,  25  L.R.A.(N.S.)  233,  66  S.  E.  212,  holding  knowl- 
edge of  agent  is  imputed  to  principal  where  acquired  within  scope  of  agency,  or 
before  and  which  he  had  in  mind,  and  not  against  his  interest. 
Xotice  in  one  transaction  as  notice  in  subsequent  ones  of  same  nature. 

Cited  in  Webb  v.  John  Hancock  Mut.  L.  Ins.  Co.  162  Ind.  639,  66  L.R.A.  647, 
69  N.  E.  1006,  holding  that  where  the  mortgagee  at  the  time  of  making  the  loan 
had  knowledge  that  there  was  an  evasion  of  the  statutes,  and  at  the  time  the 
second  loan  was  made  had  same  means  of  information,  he  will  be  held  charge- 
able with  knowledge  at  that  time. 

3  L.  R.  A.  565,  TRINITY  &  S.  R.  CO.  v.  MEADOWS,  73  Tex.  32,  11  S.  W.  145. 
Damage  due  to  taking  or  nse  of  right  of  way  by  carrier. 

Cited  in  Gainesville,  H.  &  W.  R.  Co.  v.  Hall,  78  Tex.  173,  9  L.  R.  A.  300,.  22  Am. 
St.  Rep.  42,  14  S.  W.  259,  upholding  recovery  by  landowner  of  damages  by 
reason  of  vibration,  smoke,  noxious  vapors,  and  noise  of  passing  trains;  Fort 
Worth  &  R.  G.  R.  Co.  v.  Jennings,  76  Tex.  376,  8  L.  R.  A.  181,  13  S.  W.  270,  hold- 
ing portion  of  right  of  way  granted  to  one  company  cannot  be  conveyed  to  another 
without  compensating  abutting  land  owner  holding  fee;  Gulf,  C.  &  S.  F.  R.  Co. 
v.  Oakes,  94  Tex.  162,  52  L.  R.  A.  299,  86  Am.  St.  Rep.  835,  58  S.  W.  999,  hold- 
ing railroad  company  not  liable  for  spreading  to  lands  of  adjoining  proprietor 
of  Bermuda  grass  planted  on  right  of  way;  Rische  v.  Texas  Transp.  Co.  27  Tex. 
Civ.  App.  34,  66  S.  W.  324,  holding  carrier  liable  for  injuries  to  property  of 
abutting  woner;  Oklahoma  City  &  T.  R.  Co.  v.  Dunham,  39  Tex.  Civ.  App.  578, 
88  S.  W.  849,  holding  railroad  company  not  liable  for  injuries  to  lot  by  opera- 
tion of  railroad  upon  a  street  under  grant  reserved  in  dedication  by  plat. 

Cited  in  footnotes  to  Theobold  v.  Louisville.  N.  O.  &  T.  R.  Co.  4  L.  R.  A.  735, 
which  holds  steam  railroad  cannot  be  operated  in  street  without  condemnation  or 
consent  of  abutting  owner;  Raining  v.  New  York,  L.  &  W.  R.  Co.  14  L.  R.  A. 
133,  which  holds  abutting  owner  entitled  to  compensation  on  closing  of  street 
by  railroad  embankment. 

Cited  in  notes    (4  L.  R.  A.   786)    on  right  of  eminent   domain;    (8  L.   R.   A. 
453)   on  right  to  construct  and  operate  street  railroad  lines;    (47  L.  R.  A.  782) 
on  pollution  of  water  as  element  of  damages  for  taking  railroad  right  of  way; 
(106  Am.  St.  Rep.  255   )on  railroads  as  additional  servitudes  in  highways. 
Compensation   for   taking  private   property. 

Cited  in  Johnson  v.  St.  Louis,  96  C.  C.  A.  617.  172  Fed.  34,  on  the  right  to  com- 
pensation for  loss  of  lateral  support  in  building  sewer. 


543  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  567 

Cited  in  notes  (22  Am.  St.  Rep.  51)  on  compensation  for  subsequent  damages; 
(109  Am.  St.  Rep.  909)  on  what  constitutes  "damage"  to  property  within  provi- 
sion that  property  shall  not  be  taken  or  damaged  for  public  use  without  com- 
pensation. 
Rigrht   to   compensation   (or   injury   to   riparian    rights. 

Cited  in  Bigham  Bros.  v.  Port  Arthur  Canal  &  Dock  Co.  100  Tex.  202,  13  L.R.A. 
(X.S.)  660,  97  S.  W.  686,  holding  canal  company  liable  for  compensation  where 
their  improvements  damaged  the  riparian  rights  of  another. 

Distinguished  in  Teel  v.  Rio  Bravo  Oil  Co.  47  Tex.  Civ.  App.  160,  104  S.  W.  420, 
holding  oil  company  liable  for  unnecessary  pollution  of  stream  in  operating  oil 
well. 

3  L.  R.  A.  567,  EAST  LINE  &  R.  RIVER  R.  CO.  v.  CULBERSON,  72  Tex.  375, 

13  Am.  St.  Rep.  805,  10  S.  W.  706. 
Liability  for  negligence  as  between  lessor  and  lessee. 

Cited  in  Trinity  &  S.  R.  Co.  v.  Lane,  79  Tex.  647.  15  S.  W.  477,  holding  rail- 
road company  liable  for  injury  to  employees  of  another  company,  due  to  improp- 
erly constructed  tracks;  Kansas  &  G.  S.  L.  R.  Co.  v.  Dorough,  72  Tex.  Ill,  10 
S.  W.  711,  holding  that  under  general  denial  defendant  may  show  plaintiff's 
injury  was  caused  by  servants  of  its  receiver;  Texas  &  P.  R.  Co.  v.  Moore,  8 
Tex.  Civ.  App.  292,  27  S.  W.  962,  holding  lessor  not  liable  to  lessee's  employee 
struck  by  properly  built  bridge,  through  lessee's  failure  to  give  proper  warning 
of  danger;  Galveston,  H.  &  S.  A.  R.  Co.  v.  Daniels,  9  Tex.  Civ.  App.  256,  28 
S.  W.  548,  holding  lessor  liable  for  killing  of  lessee's  employee  by  collapse  of 
bridge;  Collins  v.  Texas  &  P.  R.  Co.  15  Tex.  Civ.  App.  171,  39  S.  W.  643,  holding 
carrier's  leasing  excursion  train  to  association  liable  for  insults  to  passenger  by 
other  members  of  party;  Lee  v.  Southern  P.  R.  Co.  116  Cal.  105,  38  L.  R.  A.  73, 
58  Am.  St.  Rep.  140,  47  Pac.  932,  holding  lessor  liable  to  lessee's  employee  for 
negligent  construction  of  its  road;  Hukill  v.  Maysville  &  B.  S.  R.  Co.  72  Fed.  753, 
holding  lessor  not  liable  to  lessee's  servant  for  negligence  of  lessee  operating  road 
under  void  lease;  Baltimore  &  O.  &  C.  R.  Co.  v.  Paul,  143  Ind.  28,  28  L.  R.  A.  218; 
40  X.  E.  519,  holding  carrier  not  liable  to  brakeman  of  another  company  for  negli- 
gence of  fellow  servant  on  employer's  train;  Buckner  v.  Richmond  &  D.  R.  Co.  72 
Miss.  880,  18  So.  449,  holding  lessor  not  liable  to  servant  of  lessee  for  injury  in 
use  of  leased  defective  machinery;  Arrow-smith  v.  Nashville  &  D.  R.  Co.  57  Fed. 
171,  holding  lessor  under  valid  lease  not  liable  for  injury  to  passenger  through 
lessee's  negligence;  Chicago  &  G.  T.  R.  Co.  v.  Hart,  209  111.  424,  66  L.  R.  A.  80, 
70  N.  E.  654  (dissenting  opinion),  majority  holding  statutory  permission  to  rail- 
road to  lease  property  not  absolve  it  from  liability  for  injuries  to  servants  of 
lessee  due  to  defects  in  rolling  stock;  Williard  v.  Spartanburg  U.  &  C.  R.  Co.  124 
Fed.  800;  Swice  v.  Maysville  &  B.  S.  R.  Co.  116  Ky.  257,  75  S.  W.  278,— holding 
lessor  not  liable  for  injury  to  servant  of  lessee  through  lessee's  negligence;  Chi- 
cago &  G.  T.  R.  Co.  v.  Hart,  209  111.  424,  66  L.R.A.  80,  70  X.  E.  654  (dissenting 
opinion),  on  the  same  point;  Travis  v.  Kansas  City,  S.  &  G.  R.  Co.  119  La.  490, 
10  L.R.A.(X.S.)  1190,  121  Am.  St.  Rep.  526,  44  So.  274,  holding  lessor  not  liable 
for  injury  to  employee  of  lessee,  because  of  breach  of  contract  of  employment; 
Illinois  C.  R.  Co.  v.  Sheegog,  126  Ky.  275,  103  S.  W.  323,  holding  lessor  liable  for 
injury  to  lessee's  servant,  through  a  breach  of  duty  by  lessee,  which  it  owed  to 
the  public:  Moorshead  v.  United  R.  Co.  203  Mo.  160,  100  S.  W.  611,  holding  lessor 
street  railway  not  liable  for  injury  to  passenger  from  negligence  of  lessee  in 
starting  car  too  suddenly;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Gaskill.  103  Tex.  443.  129 
S.  \V.  :U5.  holding  that  railroad  which  constructed  spur  track  to  compress  com- 
pany under  agreement  to  operate  cars  thereon  is  not  liable  as  matter  of  law  for 


3  L.R.A.  567]  L.  R.  A.  CASES  AS  AUTHORITIES.  544 

injury  to  superintendent  of  such  company  by  operation  of  car  by  such  company's 
employees;  Empire  Trust  Co.  v.  Egypt  R.  Co.  182  Fed.  106,  holding  lessor  rail- 
road not  liable  for  labor  or  materials  furnished  lessee  in  operating  road. 

Cited  in  footnote  to  Harden  v.  North  Carolina  R.  Co.  55  L.  R.  A.  784,  which. 
denies  power  of  lessor  of  railroad  to  exempt  itself  from  liability  to  employees  of 
Jessee. 

Cited  in  notes  (7  L.  R.  A.  345)  on  liability  of  lessor  of  railroad  for  injury 
resulting  from  negligence  of  lessee;  (37  L.  R.  A.  83)  on  responsibility  of  grantee 
of  public  franchises  for  acts  of  servants  of  lessee  in  possession  under  unauthorized 
-contract;  (44  L.  R.  A.  739,  749,  754)  on  liability  of  lessor  of  railroad  for  inju- 
ries by  negligence  of  another  company  using  road  under  lease,  license,  or  other 
contract;  (46  L.  R.  A.  89-91)  on  right  of  servant  to  recover  damages  from  per- 
sons other  than  his  master  for  injuries  received  in  performance  of  duties;  (66 
L.R.A.  143)  on  liability  of  lessor  of  railroad  for  negligence  of  lessee;  (58  Am.  St. 
Rep.  ]55)  on  liability  of  lessor  of  railroad  to  third  persons. 

Distinguished  in  Texas  &  P.  R.  Co.  v.  Gay,  86  Tex.  607,  25  L.  R.  A.  66,  26 
'•S.  W.  599,  holding  railroad  company  liable  for  negligent  injury  to  employee  of 
receiver  collusively  appointed;  Washington  v.  Texas  &  Ft.  S.  R.  Co.  22  Tex.  Civ. 
App.  191,  54  S.  W.  1092,  holding  carrier  not  liable  for  shipper's  negligence  in 
loading  on  its  tracks  car  of  connecting  line;  Oriental  Invest.  Co.  v.  Barclay, 
25  Tex.  Civ.  App.  554,  64  S.  W.  80,  sustaining  recovery  of  servants  of  lessee 
against  lessor  when  two  practically  identical;  Moorshead  v.  Union  R.  Co.  119  Mo. 
App.  570,  96  S.  W.  261,  holding  lessor  not  liable  for  injuries  to  passengers  by 
servants  of  lessor,  where  statute  authorized  the  leasing. 
.Negligence  of  coservant. 

Cited  in  footnote- to  Byrnes  v.  New  York,  L.  E.  &  W.  R.  Co.  4  L.  R.  A.  151, 
which  holds  station  agent  and  brakeman  fellow  servants. 
Statute   of   limitations. 

Cited  in  Green  v.  Sanford,  34  Neb.  367,  51  N.  W.  967,  holding  action  barred 
as  to  new  defendant  brought  in  after  expiration  of  statute  of  limitations. 

Distinguished  in  Becker  v.  Gulf  City  Street  R.  &  Real  Estate  Co.  80  Tex.  486, 
15  S.  W.  1094,  holding  amendment  of  defectively  stated  cause  of  action  brought 
in  time  not  prevented  by  statute  of  limitations. 
•Correction  of  record. 

Cited  in  Maxson  v.  Jennings,  19  Tex.  Civ.  App.  705,  48  S.  W.  781,  holding  that 
trial  judge  may,  at  next  term  after  judgment,  strike  from  record  exceptions  not 
presented  within  statutory  time;  Glaser  v.  Hackett,  38  Fla.  88,  20  So.  820,  hold- 
ing that  bill  of  exceptions,  regular  in  form,  cannot  be  assailed  in  appellate  court ; 
McClure-Mabie  Lumber  Co.  v.  Brooks,  46  W.  Va.  733,  34  S.  E.  921,  holding  that 
court  retaining  original  record  of  case  may,  under  proper  circumstances,  correct 
mistakes  therein;  Corralitos  Co.  Mackay,  31  Tex.  Civ.  App.  318,  72  S.  W.  624, 
and  Cain  v.  State,  42  Tex.  Crim.  Rep.  211,  59  S.  W.  275,  sustaining  court's  power 
during  term,  to  correct  record  after  approval. 

3  L.  R.  A.  572,  RECE  v.  NEWPORT  NEWS  &  M.  VALLEY  R.  CO.  32  W.  Va. 

164,  9  S.  E.  212. 
Residence  of  corporation. 

Cited  in  Humphreys  v.  Newport  News  &  M.  Valley  Co.  33  W.  Va.  137,  10  S. 
E.  39,  holding  foreign  corpora  ion  suable  in  any  county  wherein  it  does  business, 
if  process  can  be  legally  served  there;  Amsden  v.  Norwich  Union  F.  Ins.  Soc.  44 
Fed.  517,  holding  foreign  corporation's  appointment  of  resident  agent  in  Indiana 
•does  not  constitute  it  a  resident  of  that  state;  Tennis  Bros.  Co.  v.  Wetzel  &  T. 


545  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  579 

R.  Co.  140  Fed.  196,  on  the  right  of  a  foreign  corporation  to  sue  in  local  courts; 
Baltimore  &  0.  R.  Co.  v.  Allen,  58  W.  Va.  398,  3  L.R.A.(X.S.)  615,  112  Am.  St. 
Hep.  975,  52  S.  E.  465,  holding  a  railroad  corporation  chartered  in  another  state 
but  operating  in  this,  may  be  proceeded  against  as  garnishee  in  this  state. 

Cited  in  notes  (8  L.R.A.  242)  on  law  of  comity  as  to  foreign  corporations; 
(85  Am.  St.  Rep.  907,  921)  on  jurisdiction  of  foreign  corporations. 

Distinguished  in  Chesapeake  &  O.  R.  Co.  v.  Howard,  14  App.  D.  C.  284,  hold- 
ing lessee  under  lease  void  by  laws  of  home  state  liable  for  negligent  injury  to 
passenger  on  leased  line. 
Removal   of   causes. 

Cited  in  footnotes  to  Herndon  v.  JEtna  F.  Ins.  Co.  10  L.  R.  A.  53,  which  holds 
petition  for  removal  of  cause  not  aided  by  allegations  as  to  residence  in  com- 
plaint. 

Cited  in  notes  (11  L.  R.  A.  568)  on  right  of  foreign  corporation  to  remove  cause 
for  prejudice  or  local  influence;  (24  L.  R.  A.  294)  on  conditions  against  foreign 
corporation  invoking  Federal  jurisdiction. 

3  L.  R.  A.  576,  BURROWS  v.  KLUXK,  70  Md.  451,  14  Am.  St.  Rep.  371,  17  Atl. 

378. 
Alteration   of  instruments. 

Cited  in  Bank  of  Herington  v.  Wangerin,  65  Kan.  426,  59  L.  R.  A.  718,  70 
Pac.  330,  holding  note  fraudulently  raised  by  payee  void  in  hands  of  innocent 
purchaser;  Walsh  v.  Hunt,  120  Cal.  53,  39  L.  R.  A.  700,  52  Pac.  115,  holding 
mortgage  note,  raised  by  stranger  after  execution,  good  as  to  the  amount  for 
which  originally  executed;  Exchange  Nat.  Bank  v.  Bank  of  Little  Rock,  22  L. 
II.  A.  GS9,  7  C.  C.  A.  121,  19  U.  S.  App.  152,  58  Fed.  143,  holding  bank  not  liable 
to  innocent  purchaser  from  one  of  its  own  clerks  for  draft  raised  by  him;  Mer- 
ritt  v.  Boyden,  191  111.  142,  85  Am.  St.  Rep.  246,  60  N.  E.  907,  holding  no  alter- 
ation in  note;  Good  Roads  Machinery  Co.  v.  Moore,  25  Ind.  App.  484,  58  X.  E. 
540,  holding  alteration  of  contract  by  sales  agent,  increasing  his  territory,  re- 
leases surety  on  bond;  Gisriel  v.  Burrows,  72  Md.  374,  20  Atl.  240,  holding  that 
one  understood  by  all  parties  to  be  indorser  cannot  be  held  as  maker  of  note; 
Young  v.  Baker,  29  Ind.  App.  135,  64  X.  E.  54,  holding  unauthorized  insertion 
of  name  of  ba'nk  where  note  payable,  material  alteration;  Merchants'  Xat.  Bank 
v.  Baltimore,  C.  &  R.  S.  B.  Co.  102  Md.  580,  63  Atl.  108,  holding  change  of  date 
of  negotiable  bill  of  lading  was  material  and  avoided  the  instrument;  National 
Exch.  Bank  v.  Lester,  194  X.  Y.  470,  21  L.R.A. (X.S.)  409,  87  N.  E.  779,  16  A.  & 
E.  Ann.  Cas.  770,  holding  accommodation  indorser  not  liable  to  bona  fide  holder 
for  amount  shown  by  face  of  note  after  its  alteration  after  delivery. 

Cited  in  notes  (35  L.  R.  A.  470)  on  alteration  of  note  as  affecting  bona  fide 
holders;  (22  L.  R.  A.  686)  on  liability  of  maker  or  drawer  on  raised  nego- 
tiable paper;  (6  L.R.A.  470)  on  effect  of  alteration  of  written  instrument;  (86 
Am.  St.  Rep.  108,  111,  121)  on  unauthorized  alteration  of  written  instruments; 
(4  Eng.  Rul.  Cas.  647)  on  estoppel  to  deny  liability  to  bona  fide  holder  on  com- 
mercial paper  issued  in  blank  and  subsequently  filled  up. 

3  L.  R.  A.  579,  NEWBOLD  v.  PEABODY   HEIGHTS  CO.  70  Md.  493,   17  Atl. 

372. 
Covenants   and    agreements    in    conveyances. 

Cited  in  Peabody  Heights  Co.  v.  Willson,  82  Md.  198,  36  L.  R.  A.  395,  32  Atl. 
386,  refusing  specific  performance  of   land   contract  because  of  building  restric- 
tion; West  Boundary  Real  Estate  Co.  v.  Bayless,  80  Md.  507,  31  Atl.  442.  hold- 
ing grantee  in  deed  not  bound  by  covenants  in  contract  not  referred  to  in  deed; 
L.R.A.  Au.  Vol.  I.— 35. 


3  L.R.A.  579]  L.  R.  A.  CASES  AS  AUTHORITIES.  546 

Foreman  v.  Sadler,  114  Md.  577,  80  Atl.  298,  holding  that  purchaser  from  grantee 
of  lot  under  deed  containing  building  restrictions  takes  title  free  from  restric- 
tions, where  original  owner  sells  greater  part  of  tract  free  from  restrictions; 
Guyer  v.  Auers,  132  111.  App.  530,  upholding  a  restrictive  covenant  against  the 
sale  of  intoxicating  liquors;  Dawson  v.  Western  Maryland  R.  Co.  107  Md.  88,  14 
L.R.A.(X.S.)  812,  126  Am.  St.  Rep.  337,  68  Atl.  301,  15  A.  &  E.  Ann.  Cas.  678, 
holding  one  purchasing  with  notice  from  subvendee,  land  on  which  a  formei 
vendor  has  imposed  a  restriction  as  to  its  use,  enforceable  against  his  vendee, 
takes  subject  to  restriction; 

Cited  in  notes  (20  L.R.A.  637)  on  exception  and  reservation  of  easements; 
(15  L.R.A.  (>i.S.)  1131)  on  recorded  agreement  restricting  use  of  property  as 
binding  successor  in  title;  (34  Am.  St.  Rep.  708)  on  implied  grant  of  easements 
by  severance  and  sale  of  property;  (95  Am.  St.  Rep.  215)  on  validity  of  condi- 
tions and  restrictions  in  deed;  (15  Eng.  Rul.  Cas.  284)  on  necessity  of  pur- 
chaser observing  restrictive  stipulations  known  to  him. 
Specific  performance  of  contract  for  sale  of  land. 

Cited  in  Callaway  v.  Baltimore,  99  Md.  321,  57  Atl.  661;  Shea  v.  Evans,  1091 
Md.  234,  72  Atl.  600, — holding  a  court  of  equity  would  not  decree  specific  per- 
formance of  bare  contract  of  sale,  where  the  vendor  cannot  give  a  marketable 
title. 
Enforcement   of  covenants. 

Annotation  cited  in  Greensboro  Ferry  Co.  v.  New  Geneva  Ferry  Co.  34  Pa.  Co. 
Ct.  37,  on  the  enforcement  of  covenants  in  equity. 

3  L.  R.  A.  583,  SPRING  GARDEN  HANK  v.  RULINGS  LUMBER  CO.  32  \V. 
Va.  357,  9  S.  E.  243. 

Report  of  decision  in  proceedings  to  administer  trust  under  subsequent  deed 
by  same  defendant,  in  Hulings  v.  Hulings  Lumber  Co.  38  W.  Va.  363,  18  S.  E.620. 
Grants  to  corporation  before  charter  granted. 

Cited  in  Clarksburg  Electric  Light  Co.  v.  Clarksburg,  47  W.  Va.  749,  50  L. 
R.  A.  152,  35  S.  E.  994,  holding  grant  of  franchise  to  corporation  not  then  char- 
tered, which  corporation  after  being  chartered  accepts,  valid;  Chicago  Teleph. 
Co.  v.  Northwestern  Teleph.  Co.  199  111.  346,  65  N.  E.  329,  Affirming  100  111.  App. 
57,  holding  ordinance  granting  franchise,  presented  before,  but  not  passed  till 
after,  corporation  fully  organized,  valid;  Santaquin  Min.  Co.  v.  High  Roller  Min.. 
Co.  25  Utah,  291,  71  Pac.  77,  holding  placing  of  deed  in  hands  of  promoter  for 
company  when  formed,  not  a  delivery;  AVheeling  Creek  Gas,  Coal  &  Coke  Co.  v. 
Elder,  54  W.  Va.  343,  46  S.  E.  357,  on  the  power  of  a  corporation  to  ratify  grants 
to  its  promoters. 

Distinguished  in  Bonanza  Min.  &  Smelter  Co.  v.  Ware,  78  Ark.  318,  95  S.  W. 
765,  holding  corporation  not  liable  upon  notes  signed  by  two  persons  as  its  presi- 
dent and  secretary  before  its  incorporation,  in  pay  for  land. 

3  L.  R.  A.  587,  TAYLOR  MFG.  CO.  v.  HATCHER,  39  Fed.  440. 
Loss  of  profits  as  element  of  damage. 

Cited  in  Collins  v.  Lavelle,  19  R.  I.  46.  31  Atl.  434,  holding,  in  action  for 
breach  of  contract  to  sell  store,  evidence  of  previous  profits  admissible  on  ques- 
tion of  damages  for  loss  of  business;  Mott  v.  Chew,  137  Fed.  198,  on  the  recovery 
of  profits  as  damages;  Emerson  v.  Pacific  Coast  &  N.  Packing  Co.  96  Minn.  7.  1 
L.R.A.(N.S.)  450,  113  Am.  St.  Rep.  603,  104  X.  W.  573,  6  A.  &  E.  Ann.  Cas.  973, 
holding  profits  recoverable  as  damages  where  they  are  such  as  would  have  proxi- 
mately  resulted  from  the  contract,  excluding  conjectural  ones;  Young  v.  Metcalf 


547  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  594 

Land  Co.  18  X.  D.  449,  122  X.  W.  1101,  holding  that  real  estate  broker  is  entitled 
to  profits  on  proposed  sales  disapproved  of  by  owner  on  untenable  ground;  Calla- 
han  v.  Chickasha  Cotton  Oil  Co.  17  Okla.  559,  87  Pac.  331,  holding  that  for  breach 
of  contract  for  failure  to  supply  mill  machinery,  the  profits  could  not  be  recovered 
as  damages,  where  they  depended  upon  a  satisfactory  market. 

Cited  in  footnote  to  Blagen  v.  Thompson,  18  L.  R.  A.  315,  which  holds  loss  of 
profits  of  surrendered  land  contract  recoverable  for  breach  of  contract  to  con- 
struct motor  railway. 

Cited  in  notes  (53  L.  R.  A.  35)  on  loss  of  profits  as  an  element  of  damages  for 
breach  of  contract;   (53  L.  R.  A.  40,  41)  on  same;  effect  of  uncertainty  of  amount; 
(53  L.  R.  A.  44)   on  same;  distinction  between  direct  and  collateral  profits. 
Measure    of    dnmngres. 

Cited  in  Purdorn  Xaval  Stores  Co.  v.  Western  U.  Teleg.  Co.  153  Fed.  331,  hold- 
ing measure  for  failure  to  deliver  telegram  was  the  difference  between  the  price 
specified  in  the  telegram  and  the  value  of  what  was  offered;  Portland  Co.  v. 
Searle,  169  Fed.  973,  holding  measure  for  breach  of  executory  contract  to  con- 
struct and  deliver  railway  equipment  was  the  outlay  and  expenses  less  value  of 
materials  on  hand,  and  profits  he  would  have  realized;  Thebideau  v.  Cairns,  171 
Fed.  239,  holding  measure  of  damages  for  failure  to  load  schooner  was  the  differ- 
ence between  what  it  would  have  earned,  and  what  it  did  earn  plus  damage  for 
additional  time  to  load. 

Cited  in  footnote  to  Rockefeller  v.  Merritt,  35  L.  R.  A.  633,  which  holds  measure 
of  damage  for  fraud  in  inducing  exchange  of  property,  difference  between  actual 
value  of  property  parted  with  and  that  received. 

Cited  in  notes   (4  L.  R.  A.  670)   on  measure  of  damages  on  breach  of  contract 
to  convey;   (6  L.  R.  A.  552;  11  L.  R.  A.  681)  on  damages  for  breach  of  contract; 
(18  L.  R.  A.  386)   on  measure  of  damages  for  breach  of  implied  warranty. 
Proximate  cause. 

Cited  in  note   (6  L.  R.  A.  194)   on  proximate  and  remote  cause  of  injury. 
Exceptions    to    master's    report. 

Cited  in  Cutting  v.  Florida  R.  &  Nav.  Co.  43  Fed.  747,  holding  exceptions  not 
alluding  to  evidence  nor  supported  by  statement,  not  to  be  considered;  Folkmire 
v.  Michigan  United  R.  Co.  157  Mich*.  166,  121  X.  W.  811,  17  A.  &  E.  Ann.  Gas. 
970.  holding  it  contributory  negligence  per  se  to  drive  upon  a  railroad  crossing 
without  looking,  when  the  train  by  which  the  deceased  was  killed  was  in  plain 
sight. 

3  L.  R.  A.  594;  FREEMAN  v.  DULCTH,  S.  S.  &  A.  R.  CO.  74  Mich.  86,  41  N.  W. 

87i>. 
Ditty   of   traveler   or  carrier  approaching   crossing:. 

Cited  in  Baker  v.  Kansas  City,  Ft.  S.  &  M.  Co.  122  Mo.  571,  26  S.  W.  20,  hold- 
ing negligence  of  company  in  not  giving  signals  at  crossing  does  not  excuse 
traveler  from  looking  and  listening;  White  v.  Chicago  &  X.  W.  R.  Co.  102  Wis. 
497,  78  X.  W.  585,  holding  failure  to  close  crossing  gates  does  not  excuse  negli- 
gence of  traveler;  Shirk  v.  Wabash  R.  Co.  14  Ind.  App.  133,  42  N.  E.  656;  Graf 
v.  Chicago  &  N.  W.  R.  Co.  94  Mich.  583,  54  X.  W.  388;  Grostick  v.  Detroit,  L. 
&  X.  R.  Co.  90  Mich.  598,  51  X.  W.  667, —  holding  failure  of  person  crossing  rail- 
road to  use  senses  to  ascertain  proximity  of  train,  negligence  as  mutter  of  law; 
Chicago,  St  L.  &  P.  R.  Co.  v.  Butler,  10  Ind.  App.  274,  38  X.  E.  1  (dissenting 
opinion),  majority  holding  one  not  negligent  as  matter  of  law  in  approaching 
(inking  while  looking  and  listening;  Monroe  v.  Lake  Shore  &  M.  S.  R.  Co.  129 
Mich.  311,  88  X.  W.  888,  holding  company  liable  to  traveler,  who  looked  and 


3  L.R.A.  594]  L.  R.  A.  CASES  AS  AUTHORITIES.  548 

listened,  for  injuries,  from  unlighted  and  detached  car;  Kinyon  v.  Chicago  &  N. 
W.  R.  Co.  118  Iowa,  359,  96  Am.  St.  Rep.  391,  92  N.  W.  40,  holding  running  of 
train  at  high  rate  of  speed  across  dangerous  crossing,  without  sounding  signal, 
negligence;  Hampel  v.  Detroit,  G.  R.  &  W.  R.  Co.  138  Mich.  3,  108  Am.  St.  Rep. 
275,  100  N.  W.  1002,  on  the  same  point. 

Cited  in  footnotes  to  Lake  Shore  &  M.  S.  R.  Co.  v.  Franz,  4  L.  R.  A.  389,  which 
holds  no  amount  of  negligence  excuses  driving  on  crossing  without  stopping, 
looking,  and  listening;  Patton  v.  East  Tennessee,  V.  &  G.  R.  Co.  12  L.  R.  A.  184, 
which  holds  person  negligent  in  going  on  track  immediately  after  train  passes 
without  looking  and  listening;  Louisville  &  N.  R.  Co.  v.  Webb,  11  L.  R.  A.  674, 
which  holds  failure  to  use  senses  before  crossing  track  not  excused  by  unlawful 
speed  of  train  and  watchman's  failure  to  do  duty;  Keenan  v.  Union  Traction  Co. 
58  L.  R.  A.  217,  which  holds  failure  to  look  for  train  within  35  feet  of  track, 
negligence;  Western  &  A.  R.  Co.  v.  Ferguson,  54  L.  R.  A.  802,  which  holds  fail- 
ure to  look  within  30  feet  of  track  will  not  prevent  recovery. 

Cited  in  notes  (7  L.  R.  A.  318)  on  duty  of  traveler  to  stop,  look,  and  listen; 
(9  L.R.A.  163)  on  recovery  defeated  by  contributory  fault;  (21  L.R.A.(X.S.)  434) 
as  to  whether  wantonness  or  wilfulness  may  be  predicated  of  omission  of  a  duty 
before  discovery  of  person  in  peril  on  track;  (20  Am.  St.  Rep.  114,  115)  on  duty 
of  railroad  company  toward  person  approaching  track;  (20  Am.  St.  Rep.  453) 
on  duty  of  railroad  company  as  to  persons  on  track. 
Xes'ligence ;  duty  of  railroad  to  uuard  crossings. 

Cited  in  English  v.  Southern  P.  R.  Co.  13  Utah,  421,  35  L.  R.  A.  160,  57  Am. 
St.  Rep.  779,  45  Pac.  47,  holding  statute  requiring  locomotives  to  whistle  and 
ring  at  crossings  does  not  excuse  railroad's  failure  to  adopt  further  precautions 
dictated  by  common  prudence;  Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  422,  36 
L.  ed.  491,  12  Sup.  Ct.  Rep.  679,  holding  duty  to  provide  flagmen  or  gates  at  cross- 
ings may  exist  outside  of  statute,  if  situation  reasonably  requires  it;  Willet  v. 
Michigan  C.  R.  Co.  114  Mich.  416,  72  N.  VV.  260,  holding  negligence  of  railroad 
in  not  guarding  crossing  where  view  obstructed,  question  for  jury;  Philip  v.  Hera- 
ty,  135  Mich.  452,  97  N.  W.  963,  holding  it  question  for  jury  whether  it  was  neg- 
ligent to  back  train  across  street  without  flagging,  in  absence  of  watchman; 
Barnum  v.  Grand  Trunk  Western  R.  Co.  148  Mich.  373,  111  N.  W.  1036,  holding 
that  it  is  not  negligence  per  se  not  to  have  flagman  at  a  railway  crossing,  but  it 
depends  on  circumstances  of  the  case;  Folkmire  v.  Michigan  United  R.  Co.  1.37 
Mich.  162,  121  N.  W.  811,  1 7  A.  &  E.  Ann.  Cas.  979,  holding  it  a  question  to  be 
determined  by  circumstances  of  each  case  whether  railroad  company  was  negli- 
gent in  not  keeping  flagman  at  crossing. 

Cited  in  notes  (9  L.  R.  A.  159)  on  duty  of  railway  to  warn  traveler  on  ap- 
proach to  highway  crossing;  (9  L.  R.  A.  161)  on  high  rate  of  speed;  (8  L.  R.  A. 
783)  on  when  contributory  negligence  not  a  defense;  (22  L.R.A.(N.S.)  238)  on 
aiecessity  for  flagman  or  gateman  at  crossing  where  traveler's  view  is  obstructed. 

3  L.  R.  A.  599,  Re  EYSAMAN.  113  N.  Y.  62,  20  X.  E.  613. 

Followed  without  discussion  in  Parks  v.  Andrews,  67  Hun,  650,  23  N.  Y.  Supp. 
1153. 
Reversible  error;   evidence. 

Cited  in  Harvey  v.  Van  Cott,  71  Hun,  401,  25  N  Y.  Supp.  25,  holding  judgment 
supported  by  competent,  undisputed  evidence  not  reversible  for  admission  of 
improper  evidence;  Re  Bernsee,  71  Hun,  30.  24  N.  Y.  Supp.  504,  holding  imma- 
terial evidence,  improperly  admitted,  not  reversible  error;  Jones  v.  Perkins.  20 
App.  Div.  44,  51  N.  Y.  Supp.  380,  and  Peyton  v.  Now  York  Elev.  R.  Co.  62  Hun, 
539,  17  N.  Y.  Supp.  244,  holding  reversal  proper  where  evidence  erroneously 


549  L.  E.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  599 

admitted  cannot  be  said  not  to  have  affected  result;  Heyne  v.  Doerfler,  124  N. 
Y.  510,  20  X.  E.  1044,  holding  that  judgment  not  sustained  by  preponderance 
of  competent  evidence  must  be  reversed;  Huntley  v.  Huntley,  73  Hun,  264,  26  N. 
Y.  Supp.  266,  holding  exclusion  of  material  evidence  by  referee  reversible  error. 

I  ited  in  note   (8  L.  R.  A.  609)   on  objections  to  evidence,  to  indefinite  to  save 
question  for  review. 
Exception ;   waiver  of. 

(.'ited  in  Metropolitan  Nat.  Bank  v.  Commercial  State  Bank,  104  Iowa,  692,  74 
X.    W.   26,   holding   exception   to   erroneous   evidence   not   waived   by   failure   to 
object  to  subsequent  similar  evidence. 
Sufficiency  of  objection  to  evidence. 

Cited  in  People  v.  Smilie,  118  App.  Div.  614,  103  N.  Y.  Supp.  348,  holding  ob- 
jection to  testimony  made  at  the  time  the  preliminary  testimony  was  being  in- 
troduced was  properly  made,  though  the  formal  offer  had  not  then  been  made. 
Personal    transactions    with    deceased    or    incompetent    persons. 

Cited  in  Petrie  v.  Petrie,  126  X.  Y.  683,  4  Sup.  Ct.  App.  482,  27  N.  E.  958; 
Re  Dunham,  121  N.  Y.  577,  24  X.  E.  932;  Devlin  v.  Greenwich  Sav.  Bank,  125 
N.  Y.  758,  4  Silv.  Ct.  App.  606,  26  N.  E.  744;  Eighmie  v.  Taylor,  68  Hun,  583r 
23  N.  Y.  Supp.  248;  Re  Palmateer,  78  Hun,  49,  28  N.  Y.  Supp.  1062;  Gambee  v. 
Gambee,  24  App.  Div.  448,  48  N.  Y.  Supp.  501;  Leary  v.  Corvin,  63  App.  Div. 
154,  71  N.  Y.  Supp.  335,  Affirming  29  Misc.  73,  60  N.  Y.  Supp.  563,— holding 
interested  witness  cannot  testify  to  conversations  between  deceased  and  third 
persons,  though  not  participating;  Boyd  v.  Boyd,  164  N.  Y.  245,  58  N.  E.  118r 
holding  party  to  action  cannot  testify  to  signature  of  disputed  instrument  by 
deceased;  Adams  v.  Morrison,  113  N.  Y.  158,  20  N.  E.  829,  holding  plaintiff  can- 
not testify  to  entry  by  deceased  in  book  in  his  presence,  to  prove  existence  of 
copartnership;  Herrington  v.  Winn.  60  Hun,  237,  14  N.  Y.  Supp.  612,  holding 
claimant  against  estate  cannot  testify  that  certain  figures  were  entered  by  third 
person  in  book  by  deceased's  direction;  Davis  v.  Davis,  86  Hun.  403,  33  N.  Y. 
Supp.  477,  holding  party  cannot  give  evidence  of  acts  and  conversation  of  deceased 
to  sustain  alleged  gift  to  him;  Dolan  v.  Leary,  69  App.  Div.  461,  74  N.  Y.  Supp. 
981,  holding  party  incompetent  to  testify  to  execution  of  deeds  by  deceased  to 
intermediary  and  by  intermediary  to  him;  Richards  v.  Crocker,  49  N.  Y.  S.  R. 
250,  20  N.  Y.  Supp.  954,  holding  interested  witness  cannot  testify  to  physical 
condition  of  deceased;  Re  Beck,  6  App.  Div.  215,  39  N.  Y.  Supp.  810,  holding 
testimony  of  subscribing  witness  beneficially  interested  in  will  competent  on 
probate;  Re  Bernsee,  141  N.  Y.  392,  36  N.  E.  314,  holding  beneficiary  under  will 
cannot  testify  to  conversation  between  testator  and  attesting  witness;  Hutton 
v.  Smith,  175  N.  Y.  381,  67  N.  E.  633,  holding  admission  of  testimony  of  con- 
versation between  trustee  and  another  in  plaintiff's  presence,  not  reversible  error, 
where  same  fact  appears  by  other  evidence;  Trowbridge  v.  Stone,  42  W.  Va. 
458.  26  S.  E.  363,  holding  interested  witnesses  cannot  testify  as  to  value  of  labor 
performed  by  insane  plaintiff  for  committee;  McCoy  v.  Conrad,  64  Xeb.  155,  89 
X*.  W.  665.  on  the  disqualification  of  the  heirs  of  testator  as  witnesses  to  trans- 
actions and  conversation  with  deceased;  Hutton  v.  Smith,  175  X.  Y.  381,  67 
X.  E.  633,  holding  plaintiff  in  an  action  against  the  heirs  at  law  of  an  alleged 
trustee,  cannot  testify  to  a  conversation  between  the  trustee  and  another,  to 
establish  a  trust  in  lands;  Burdick  v.  Burdick,  180  X".  Y.  264,  73  X.  E.  23, 
holding  in  an  action  to  set  aside  a  deed  executed  by  a  decedent  because  obtained 
without  consideration,  by  undue  influence,  testimony  by  the  grantee  of  a  con- 
versation between  grantor  and  another  was  inadmissible;  Holland  v.  Holland,  98 
App.  Div.  375,  90  N.  Y.  Supp.  208,  holding  evidence  of  personal  transactions  and 


3  L.R.A.  599]  L.  E.  A.  CASES  AS  AUTHORITIES.  550 

communications  with  a  testator,  since  deceased,  is  incompetent,  although  the  wit- 
ness, a  party  in  interest  took  no  part  in  them;  Pringle  v.  Burroughs,  100  App. 
Div.  369,  91  N.  Y.  Supp.  750,  holding  legatee  under  a  prior  will  is  a  party  in 
interest  in  an  action  to  test  validity  of  subsequent  will;  Wilber  v.  Gillespie,  127 
App.  Div.  608,  112  X.  Y.  Supp.  20,  holding  that  testimony  by  plaintiff  to  prove 
delivery  by  reason  of  possession  of  note  by  her  at  the  time  of  the  maker's  death, 
was  inadmissible;  Boyd  v.  Boyd,  31  N.  Y'.  Civ.  Proc.  Rep.  258,  holding  testimony 
of  defendant's  wife  and  the  defendant  as  to  the  deceased  signing  the  disputed, 
paper,  was  inadmissible;  Griswold  v.  Hart,  142  App.  Div.  116,  126  N.  Y.  Supp. 
1011,  2  N.  Y.  Civ.  Proc.  Rep.  (N.  S.)  301,  holding  that  son-in-law  cannot  testify  to 
statements  of  intestate  to  daughter  in  his  presence  to  establish  gift  to  her. 

Cited  in  note  (29  L.R.A.(X.S.)  1186,  1187)  on  competency  of  interested  witness 
to  testify  as  to  transactions  with  deceased  in  which  he  did  not  participate. 
Taxation  of  transfer  in   contemplation  of  death. 

Cited  in  Re  Spaulding,  2  Misc.  422,  50  N.  Y.  Supp.  398,  holding  gifts  made 
two  years  before  death,  followed  by  absolute  possession  by  donee,  not  subject 
to  transfer  tax. 

3  L.  R.  A.  606,  GRANT  v.  KUGLAR,  81  Ga.  637,  12  Am.  St.  Rep.  348.  8  S.  E. 

878. 
Riparian   rights. 

Cited  in  Horton  v.  Fulton,  130  Ga.  468,  60  S.  E.  1059,  holding  owners  of  saw- 
mill liable  for  throwing  sawdust  into  a  non-navigable  stream  so  as  to  cause  it  to 
overflow  lands  of  others;  Price  v.  High  Shoals  Mfg.  Co.  132  Ga.  255.  22  L.R.A. 
(N.S.)  691,  64  S.  E.  87  (dissenting  opinion),  on  the  effect  of  statutes  on  the  ri- 
parian rights. 

Cited  in  notes  (7  L.  R.  A.  614)  on  riparian  rights;  (41  L.  R.  A.  746)  on  cor- 
relative rights  of  upper  and  lower  proprietors  as  to  acceleration  of  flow  of 
stream;  (10  L.R.A.  255)  on  nuisance,  casting  water  on  land;  (85  Am.  St.  Rep. 
725)  on  right  of  landowner  to  accelerate  or  diminish  flow  of  water  to  or  from 
lands  of  another;  (23  Eng.  Rul.  Gas.  810)  on  right  to  erect  barriers  against  the 
sea. 

3  L.  R.  A.  607,  JUDK1NS  v.  WOODMAN,  81  Me.  351,   17  Atl.  298. 
Trespass   for   removal   of   fixtures  by   mortgagor. 

Cited  in  note  (43  Am.  St.  Rep.  435)  on  maintenance  by  mortgagee  of  trespass 
for  waste  or  removal  of  fixtures  by  mortgagor. 

3  L.  R.  A.  608,  HUNT  v.  ADAMS,  81  Me.  356,  17  Atl.  298. 

3  L.  R.  A.  609,  HAINES  v.  HALL,  17  Or.  165,  20  Pac.  831. 
Floatable  streams  as  navigable  waters. 

Cited  in  Hallock  v.  Suitor,  37  Or.  12,  60  Pac.  384,  holding  stream  having 
floatable  capacity  at  certain  periods  navigable;  United  States  v.  Rio  Grande  Dam 
A  Irrig.  Co.  9  N.  M.  299,  51  Pac.  674,  holding  stream  not  subserving  in  natural 
state,  at  regular  seasons,  purposes  of  commercial  intercourse,  not  navigable ; 
Nutter  v.  Gallagher,  19  Or.  381,  24  Pac.  252,  holding  stream  occasionally  capable 
of  floating  logs,  but  not  usable  by  general  public,  not  navigable;  Griffith  v. 
Holman,  23  Wash.  354,  54  L.  R.  A.  182,  83  Am.  St.  Rep.  821,  63  Pac.  239,  hold- 
ing stream  incapable  of  floatage  of  practical  utility  as  public  highway  not  navi- 
gable; Kamm  v.  Normand,  50  Or.  11,  11  L.R.A.(N.S-)  291,  126  Am.  St.  Rep.  698, 
Dl  Pac.  448,  holding  a  stream  not  navigable  which  at  all  times,  except  extreme 
3iigh  water,  was  unfit  for  floating  logs. 


551  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  620 

Cited  in  footnote  to  Rigney  v.  Tacoina  Light  &  Water  Co.  26  L.  R.  A.  425, 
which  holds  as  watercourse  united  volume  of  stream  spreading  out  into  swamp 
or  lake. 

Cited  in  notes   (42  L.  R.  A.  327)   on  what  waters  are  navigable;    (5  L.  R.  A. 
393)   on  navigable  watercourses;    (41  L.  R.  A.  672)   on  right  to  use  stream  for 
floating  logs;   (12  L.R.A.  632)  on  navigable  waters  as  public  highways;  (126  Am. 
St.  Rep.  726,  727,  729)  on  what  waters  are  navigable. 
H  iiih  t>  of  riparian  owners. 

Cited  in  footnote  to  Brooks  v.  Cedar  Brook  &  S.  C.  River  Improv.  Co.  7  L.  R. 
A.  460,  which  denies  recovery  to  riparian  owner  for  washing  away  of  soil  occa- 
sioned by  dam. 

Cited  in  notes  (4  L.  R.  A.  573;  7  L.  R.  A.  614)  on  rights  of  riparian  owners; 
(5  L.  R.  A.  62)  on  riparian  rights  of  owners  bounding  on  navigable  streams; 
{8  L.  R.  A.  92)  on  title  to  soil  below  ordinary  high-water  mark;  (8  L.  R.  A. 
579)  on  property  in  unnavigable  lakes;  (13  L.  R.  A.  395)  on  right  to  erect 
embankment;  (9  L.  R.  A.  812)  on  damages  recoverable  for  diversion  of  water 
of  stream;  (4  L.R.A.  (X.S.)  878)  on  right  of  way  on  shore. 

Explained  in  Hunter  v.  Grande  Ronde  Lumber  Co.  39  Or.  451,  65  Pac.  598, 
holding  that   riparian   owner   to   recover   damages   must   show   negligent   use   of 
floatable  stream. 
Equity  jurisdiction;   absence  of  adequate   legal   remedy. 

Cited  in  Norton  v.  Elwert,  29  Or.  589,  41  Pac.  926,  holding  equity  may  compel 
removal  of  encroaching  wall;  Strawberry  Valley  Cattle  Co.  v.  Chipman,  13  Utah, 
471,  45  Pac.  348,  holding  equity  may  enjoin  repeated  continuing  trespasses  on 
grazing  lands. 

Cited  in  footnote  to  Lowery  v.  Pekin,  51  L.  R.  A.  301,  which  sustains  injunction 
against  city  taking  possession  of  embankment  built  and  owned  by  lessor  from 
city. 

Cited  in  notes  (5  L.  R.  A.  662)  on  remedy  in  equity  to  protect  private  rights; 
(6  L.  R.  A.  90)  on  injunction  to  restrain  threatened  wrong;  (11  L.  R.  A.  208) 
on  equitable  relief  against  waste  and  trespass;  (41  L.  R.  A.  497)  on  injunction 
against  injuries  to  riparian  owner  by  running  logs  in  streams;  (13  L.R.A.(X.S-) 
178)  on  injunction  against  repeated  trespass;  (36  L.  ed.  U.  S.  84)  on  what  rem- 
edy at  law  will  prevent  remedy  in  equity;  (10  Eng.  Rul.  Cas.  314)  on  mandatory 
injunction  for  protection  of  easement. 

3  L.  R.  A.  620,  FURGESON  v.  JONES,  17  Or.  204,  11  Am.  St.  Rep.  808,  20  Pac. 

842. 
Adoption   of   heir. 

Cited  in  Watts  v.  Dull,  184  111.  90,  75  Am.  St.  Rep.  141,  56  N.  E.  303,  holding 
statute  conferring  power  of  adoption  must  be  strictly  followed;  Non-She-Po  v. 
Wa-Win-Fa,  37  Or.  216,  82  Am.  St.  Rep.  749,  62  Pac.  15,  holding  decree  of  court 
pursuant  to  statute  necessary  to  legal  adoption;  Sarazin  v.  Union  R.  Co.  153 
Mo.  485,  55  S.  W.  92,  holding  defective  acknowledgment  invalidates  deed  of 
adoption;  Webb  v.  Jackson,  6  Colo.  App.  214,  40  Pac.  467,  holding  right  of 
adopted  children  to  inherit  fixed  by  statute;  Re  Renton,  10  Wash.  542,  39  Pac. 
145,  holding  presumptive  adoption  does  not  sustain  right  to  contest  will; 
Thomas  v.  Thomas.  (i4  Xeb.  589,  90  N.  W.  630,  holding  that  father's  intention  to 
make  illegitimate  child  heir  need  not  appear  in  writing;  Re  Renton,  10  Wa*h. 
542,  39  Pac.  145,  holding  clear  proof  of  adpotion  necessary,  and  presumption  not 
prevail;  Woodward's  Appeal,  81  Conn.  165,  70  Atl.  453;  Henry  v.  Taylor,  16  S.  D. 
428,  93  N.  W.  641, — holding  that  there  must  be  a  strict  compliance  with  the  stat- 
utes in  the  adoption  of  a  child;  Sires  v.  Melvin,  135  Iowa,  479,  113  N.  W. 


3  L.R.A.  620]  L.  R.  A.  CASES  AS  AUTHORITIES.  552 

106  (dissenting  opinion),  on  the  necessity  of  strict  compliance  with  provisions  of 
statute  providing  adoption  of  child;  Tiffany  v.  Wright,  79  Xeb.  14,  112  X.  Vf.  .311, 
holding  that  an  adoption  of  child  against  the  wishes  of  the  parents,  can  only 
be  made  by  strict  compliance  with  the  statute;  Willis  v.  Bell,  86  Ark.  478,  111 
S.  W.  808,  holding  decree  of  adoption  void,  where  made  without  consent  of  the 
father,  though  that  of  the  mother  was  given,  and  she  had  been  awarded  the  cus- 
tody of  the  child  in  a  decree  of  divorce,  where  statute  required  consent  of 
parents. 

Cited  in  footnote  to  \  an  Matre  v.  Sankey,  23  L.  R.  A.  665,  which  authorizes 
descent  of  land  to  child  adopted  in  other  state. 

Cited  in  notes  (30  L.R.A.  (N.S.)  147,  151)  on  validity  of  adoption  without  con- 
sent of  parents;  (39  Am.  St.  Rep.  216,  218,  219,  221)  on  adoption  of  children; 
(109  Am.  St.  Rep.  675)  on  effect  of  adoption  on  kindred  of  adopting  person. 

Distinguished  in  Re  Johnson,  98  Cal.  539,  21  L.  R.  A.  382,  33  Pac.  460,  hold- 
ing irregularity  in  failing  to  examine  child  does  not  invalidate  adoption:  Mul- 
lany's  Adoption,  25  Fa.  Co.  Ct.  564,  holding  adoption  not  invalid  for  failure  to 
file  consent,  not  required  by  statute  to  appear  of  record;  Xugent  v.  Powell,  4 
Wyo.  202,  20  L.  R.  A.  206,  62  Am.  St.  Rep.  17,  33  Pac.  23,  holding  abandonment 
by  father  gives  mother  right  to  relinquish  child  in  adoption  proceedings. 
Suit  to  aiinnl  decree  void  on  face. 

Cited  in  Blythe  v.  Hinckley,  84  Fed.  254,  holding  that  Federal  court  will  not 
entertain  suit  to  annul  decree  of  state  court  for  want  of  jurisdiction  appearing 
on  record. 
Jurisdiction  conferred  by  statute  must  affirmatively  appear. 

Cited  in  Ex  parte  Clark,  87  Cal.  641,  25  Pac.  967,  holding  in  adoption  proceed- 
ings jurisdiction  of  subject-matter  and  persons  must  affirmatively  appear;  Hind- 
man  v.  O'Connor,  54  Ark.  643,  13  L.  R.  A.  498,  16  S.  W.  1052,  holding  record 
must  affirmatively  show  court's  jurisdiction  to  validate  order  removing  minor's 
disabilities;  Kelley  v.  Kelley,  161  Mass.  118,  25  L.  R.  A.  809,  42  Am.  St.  Rep.  389, 
36  X.  E.  837,  holding  jurisdiction  of  court  of  another  state  to  grant  alimony 
must  be  proved  to  obtain  execution  on  judgment;  De  Vail  v.  De  Vail,  57  Or.  137,. 
109  Pac.  755.  holding  that  court  of  general  jurisdiction  becomes  inferior  court 
when  it  takes  cognizance  of  cause  pursuant  to  statutory  authority  and  its  record 
must  affirma lively  show  jurisdiction. 
Decree  rendered  without  jurisdiction  collaterally  assailable. 

Cited  in  Little  Rock  Junction  R.  R.  v.  Burke,  13  C.  C.  A.  348,  27  U.  S.  App. 
736,  66  Fed.  90,  holding  decree  of  sale  for  taxes  collaterally  impeaclmble,  when 
want  of  jurisdiction  appears  on  record;  Frankel  v.  Satterfield,  9  Houst.  (Del.) 
206,  19  Atl.  898,  holding  scire  facias  will  not  issue  to  revive  judgment  void  for 
want  of  jurisdiction  appearing  on  record;  Puckett  v.  Benjamin,  21  Or.  380,  28 
Pac.  67,  raising,  without  considering,  question  whether  judgment  binds  non- 
appearing  defendant  concealed  within  state,  not  served  with  summons. 

Cited  in  notes  (30  L.R.A. (X.S.)  159)  on  right  of  parties  to  adoption  proceeding, 
or  their  privies,  to  attack  decree;  (13  Am.  St.  Rep.  220)  on  validity  of  judgments- 
rendered  without  jurisdiction;  (15  Am.  St.  Rep.  143)  on  conclusiveness  of  judg- 
ments upon  collateral  attack;  (11  Eng.  Rul.  Cas.  16)  on  collateral  attack  on 
judgment,  if  lack  of  jurisdiction  appears  affirmatively  on  record. 
Construction  of  statutes  in  derogation  of  common  lavr. 

Cited  in  Casey  v.  St.  Louis  Transit  Co.  116  Mo.  App.  257,  91  S.  W.  4]  9,  hold- 
ing statutes  in  derogation  o,  common-law  are  to  be  strictly  construed;  Long  v. 
Dufur,  58  Or.  170,  113  Pac.  59;  Purinton  v.  Jamrock,  195  Mass.  197,  18  L.R.A. 


-553  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  631 

(X.S.)   929,  80  X.  E.  802, — holding  that  statutes  providing  for  adoption  of  chil- 
dren are  in  derogation  of  common  law  and  must  be  strictly  construed. 

3  L.  R.  A.  626,  DIOCESE  OF  EAST  CAROLINA  v.  DIOCESE  OF  NORTH  CARO 

LI.N'A,  102  X.  C.  442,  9  5.  E.  310. 
Division   of  proprety   upon   separation   of   religions   societies. 

Cited  in  Eutaw  Street  M.  E.  Church  v.  Asbury  Sunday-School  Soc.  109  Md. 
677,  72  Atl.  199,  on  the  division  of  property  upon  the  separation  of  religious 
societies. 

3  L.  R.  A.  631,  BOWMAN  v.  PHILLIPS,  41  Kan.  364,  13  Am.  St.  Rep.  292,  21 

Pac.  230. 
Contracts  in  violation  of  law. 

Cited  in  Yount  v.  Denning,  52  Kan.  636,  35  Pac.  207,  holding  unlicensed  real 
estate  agent  cannot  recover  commissions;  Naglebaugh  v.  Harder  &  H.  Coal  Min. 
Co.  21  Ind.  App.  555,  51  N.  E.  427,  holding  action  not  maintainable  by  assignee 
on  trade  checks  issued  to  employees  in  violation  of  law;  Winchester  Electric 
Light  Co.  v.  Veal,  145  Ind.  511,  41  N.  E.  334,  holding  officer  cannot  maintain 
action  to  recover  public  funds  illegally  loaned;  Haddock  v.  Salt  Lake  City, 
23  Utah,  528,  65  Pac.  491,  holding  recovery  cannot  be  had  for  constable's  services 
rendered  under  illegal  contract;  Brock  v.  Jones  County,  145  Iowa,  406,  124  X.  W. 
209,  holding  that  member  of  county  medical  society  which  had  contract  with 
county  to  serve  poor  is  estopped  by  receipt  of  his  share  of  compensation  to  society 
to  claim  that  contract  violated  provisions  of  law;  McXeill  v.  Durham  &  C.  R.  Co. 
135  N.  C.  722,  67  L.R.A.  245,  47  S.  E.  765  (dissenting  opinion),  on  the  enforce- 
ment of  illegal  contracts. 

Cited  in  notes  (12  L.R.A.  122)  on  courts  will  not  take  jurisdiction  in  cases  of 
illegal  contracts;  (16  Am.  St.  Rep.  699)  on  illegal  contracts. 

Distinguished  in  Concordia  v.  Hagaman,  1  Kan.  App.  40,  41  Pac.  133,  holding 
reasonable  worth  of  services   rendered  under  contract  by  councilman   with   city 
recoverable. 
Contracts  agrainst  public  policy. 

Cited  in  Moreland  v.  Devenney,  72  Kan.  474,  83  Pac.  1097,  holding  agreement 
whereby  attorneys  are  to  carry  on  litigation  at  their  own  expense  for  a  share 
of  amount  recovered  is  void;  Kansas  City  E.  R.  Co.  v.  Service,  77  Kan.  320,  14 
L.R.A.(X.S.)  1107,  94  Pac.  262,  holding  a  contract  between  attorney  and  client 
whereby  the  latter  was  not  to  settle  or  compromise  the  cause  of  action  without 
the  former's  consent  was  contrary  to  public  policy  and  void;  Binswanger  v. 
Stanford,  28  Okla.  430,  114  Pac.  621,  holding  that  firm  selling  intoxicating 
liquors,  knowing  that  buyers?  would  sell  same  contrary  to  law,  cannot  recover 
therefor,  as  contract  was  against  public  policy. 

Cited  in  footnotes  to  Boyle  v.  Adams,  17  L.  R.  A.  96,  which  holds  agreement 
to  withdraw  bid  for  state  property  void;  Spahling  v.  Ewing,  15  L.  R.  A.  727, 
\vlwch  holds  void  a  contract  to  give  percentage  of  claim  against  government  for 
services  rendered  under  illegal  or  champertous  contract;  (38  L.R.A. (N.S. )  842) 
contract  by  justice  to  secure  arrest  of  person  over  whom  he  has  no  jurisdiction, 
with  compensation  contingent  on  recovery  of  property,  void;  Gloucester  Isinglass 
&  Glue  Co.  v.  Russia  Cement  Co.  12  L.  R.  A.  563,  which  holds  agreement  to  pre- 
sent competition  between  corporations  in  manufacture  of  glue  under  patent 
valid;  Brooks  v.  Cooper.  21  L.  R.  A.  617,  which  holds  void  contract  between  news- 
papers for  alternate  selection  and  division  of  profits  of  public  printing;  Leonard 
v.  Poole,  4  L.  R.  A.  7'28.  which  holds  one  engaging  in  plot  to  raise  price  of  lard 
cannot  be  aided  by  court  as  against  coplotter. 


3  L.R.A.  631]  L.  R.  A.  CASES  AS     AUTHORITIES.  554 

Cited  in  notes  (6  L.  R.  A.  615)  on  contracts  against  public  policy;  (8  L.  R. 
A.  501)  on  no  remedy  on  contracts  against  public  policy;  (12  L.  R.  A.  121)  on 
certain  contracts  not  binding;  (11  L.  R.  A.  504)  on  contracts  in  general  restraint 
of  trade;  (4  L.R.A.  157)  on  validity  of  contracts  in  partial  restraint  of  trade; 
(38  L.R.A.  (N.S.)  1202)  on  right  of  attorney  to  recover  on  quantum  nieruit  for 
services  rendered  under  illegal  or  champertous  contract;  (38  L.R.A. (N.S.)  842) 
on  validity  of  contract  by  attorney  to  secure  suspension  of  criminal  law  as  to 
offenses  thereafter  committed;  (12  Am.  St.  Rep.  512)  on  law  of  champerty; 
(119  Am.  St.  Rep.  1035)  as  to  when  attorneys  contract  of  employment  is  void  a» 
against  public  policy'  because  procured  by  solicitation;  (33  L.  ed.  U.  S.  73)  on 
validity  of  contracts  in  restraint  of  trade;  (6  Eng.  Rul.  Gas.  391)  on  invalidity 
of  champertous  agreement  or  one  for  compounding  a  felony. 

3  L.  R.  A.  634,  DILLINGHAM  v.  ANTHONY,  73  Tex.  47,  15  Am.  St.  Rep.  753, 

11  S.  W.  139. 
Actions    :iu:iin*i    receivers    in    courts    other    than    one    appointing'. 

Cited  in  Gay  v.  Brierfield  Coal  &  I.  Co.  94  Ala.  317,  16  L.  R.  A.  570,  33  Am. 
St.  Rep.  122,  11  So.  353,  holding  state  court  may  entertain  suit  against  Federal 
receiver,  but  cannot  interfere  with  property;  Dillingham  v.  Hawk,  23  L.  R.  A. 
519,  9  C.  C.  A.  103,  23  U.  S.  App.  213,  60  Fed.  496,  and  Malott  v.  Shimer,  153 
Ind.  41,  74  Am.  St.  Rep.  278,  54  N.  E.  101,  holding  Federal  receiver  may  be  sued 
in  negligence  action  in  state  court  without  permission,  but  payment  enforceable 
only  by  Federal  court;  Garrison  v.  Texas  &  P.  R.  Co.  10  Tex.  Civ.  App.  137,  30 
S.  W.  725,  holding  judgment  in  state  court  suit  against  Federal  receiver  con- 
clusive as  to  amount;  Gardner  v.  Caldwell,  16  Mont.  233,  40  Pac.  590,  holding 
judgment  in  court  of  co-ordinate  jurisdiction  in  another  district  not  collectible 
out  of  property  in  hands  of  receiver;  Rogers  v.  Chippewa  Circuit  Judge,  135  Mich 
83,  97  N.  W.  154,  3  A.  &  E.  Ann.  Cas.  114,  holding  that  state  court  has  no  juris- 
diction to  enjoin  the  receiver  of  a  telegraph  company  appointed  by  a  Federal 
court  to  prevent  application  of  rates  fixed  by  the  court  appointing;  Davis  Coal 
&  Coke  v.  Hess,  30  Pa.  Super.  Ct.  196,  on  the  necessity  of  court  appointing 
receiver  to  recognize  a  judgment  against  him  in  another  court;  Paine  v.  Carpen- 
ter, 51  Tex.  Civ.  App.  193,  111  S.  W.  430,  holding  that  receiver,  without  leave  of 
appointing  court,  may  be  joined  in  foreclosure  suit  in  county  other  than  that  in 
which  receivership  suit  is  pending;  Kittrell  v.  First  Nat.  Bank,  56  Tex.  Civ.  App. 
397,  120  S.  W.  1104,  holding  that  jurisdiction  of  court  appointing  receiver  is 
exclusive  and  cannot  be  interfered  with  by  another  court. 

Cited  in  notes  ( 11  L.  R.  A.  481 )  on  actions  and  suits  against  receiver;  (6  L. 
R.A.  792)  on  receiver,  appointment  of;  (71  Am.  St.  Rep.  356)  on  relation  of  re- 
ceivers to  pre-existing  liens  and  remedies  for  their  enforcements;  (74  Am.  St.  Rep. 
293,  296,  298)  on  action  without  leave  of  court  against  receiver  or  person  for 
whom  he  is  appointed;  (94  Am.  St.  Rep.  55,  57)  on  effect  of  judgments  against 
receivers  in  other  than  appointing  court. 
Duty  of  carrier  to  protect  passeng-ers  from  violence  or  insult. 

Cited  in  Missouri  K.  &  T.  R.  Co.  v.  Russell,  8  Tex.  Civ.  App.  581,  28  S.  W. 
1042,  holding  railroad  liable  to  one  pushed  from  car  steps  by  quarreling  pas- 
sengers; International  &  G.  N.  R.  Co.  v.  Miller,  9  Tex.  Civ.  App.  106,  28  S.  W. 
233,  holding  railroad  liable  for  excessive  violence  of  passenger  assisting  con- 
ductor to  eject  another. 

Cited  in  note  (35  L.  ed.  U.  S.  922)  on  negligence  of  railroad  companies  toward 
passengers. 

Distinguished  in  Friar  v.  Orange  &  N.  W.  R.  Co.  45  Tex.  Civ.  App.  566,  101  S. 


555  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  634 

W.  274,  holding  where  an  intoxicated  man  in  a  crowded  car  was  requested  to 
deliver  up  the  pistol,  he  was  brandishing  and  he  gave  it  to  his  wife,  from  whom 
the  brakeman  took  it,  there  was  no  assault  upon  her. 
Liinbility  of   receiver   operating-   railroad. 

Cited  in  Huguelet  v.  Warfield,  84  S.  C.  90,  65  S.  E.  985,  holding  receivers  op- 
erating railroad  are  common  carriers  and  liable  as  such  for  loss  of  freight. 
Carrier's   liability   for   torts   of   employees. 

Cited  in  Gulf,  C.  fe  8.  F.  R.  Co.  v.  Conder,  23  Tex.  Civ.  App.  489,  58  S.  W. 
58,  holding  railroad  company  liable  for  wrongful  arrest  of  passenger  caused  by 
conductor;  St.  Louis  S.  W.  R.  Co.  v.  Berger,  64  Ark.  620,  39  L.  R.  A.  787,  44 
Pac.  809,  holding  carrier  liable  for  use  of  more  than  reasonable  force  by  con- 
ductor when  assaulted  by  passenger;  St.  Louis  S.  W.  R.  Co.  v.  Griffith,  12  Tex. 
Civ.  App.  636,  35  S.  W.  741,  holding  railroad  liable  for  assault  by  station  agent 
on  one  waiting  for  train;  Indianapolis  Union  R.  Co.  v.  Cooper,  6  Ind.  App.  205, 
33  X.  E.  219,  holding  railroad  liable  for  assault  by  gateman  on  passenger  on 
way  to  train;  Galveston,  H.  &  S.  A.  R.  Co.  v.  La  Prelle,  27  Tex.  Civ.  App.  497, 
65  S.  W.  488,  holding  previous  assault  by  passenger  not  justify  assault  by  con- 
ductor; St.  Louis  S.  W.  R.  Co.  v.  Johnson,  29  Tex.  Civ.  App.  185,  68  S.  W.  58, 
suM;iining  carrier's  liability  for  conductor's  assault  and  use  of  profane  language 
toward  noisy  passenger;  Denison  &  S.  R.  Co.  v.  Randell,  29  Tex.  Civ.  App.  463, 
69  S.  W.  1013,  holding  carrier  liable  for  abusive  treatment  of  passenger,  from 
whom  conductor  took  one  fare  but  demanded  another;  Johnson  v.  Detroit,  Y. 
&  A.  A.  R.  Co.  130  Mich.  455,  90  N.  W.  274,  holding  carrier  liable  for  con- 
ductor's wilful  assault  upon  passenger;  Taillon  v.  Mears,  29  Mont.  170,  74  Pac. 
421.  1  A.  &  E.  Ann.  Cas.  613,  holding  carrier  is  liable  to  passenger  for  injuries  to 
latter  caused  by  negligent  acts  of  its  servants;  Houston  &  T.  R.  Co.  v.  Batchler, 
37  Tex.  Civ.  App.  122,  83  S.  W.  902,  holding  carrier  liable  for  assault  made  upon 
passenger  by  servant  within  a  reasonable  time  which  the  former  has  to  leave 
the  car,  upon  arrival  at  destination;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Luther,  40  Tex. 
Civ.  App.  522,  90  S.  W.  44,  holding  a  carrier  liable  to  a  passenger  waiting  at  a 
depot  for  a  train,  resulting  from  the  improper  acts  of  servant  in  charge  of  the 
depot,  done  in  the  course  of  his  employment. 

Cited  in  footnotes  to  North  Chicago  City  R.  Co.  v.  Gastka,  4  L.  R.  A.  481, 
which  holds  carrier  liable  for  conductor's  lack  of  care  in  ejecting  passenger  for 
nonpayment  of  fare;  Farber  v.  Missouri  P.  R.  Co.  20  L.  R.  A.  350,  which  holds 
driving  of  trespasser  from  freight  train  by  brakeman  not  to  be  within  scope  of 
employment;  Pullman  Palace  Car  Co.  v.  Smith,  13  L.  R.  A.  215,  which  holds 
sleeping-car  company  liable  for  servants  causing  passengers  to  get  off  at  wrong 
place. 

Cited  in  notes  (12  L.  R.  A.  339)  on  carrier's  liability  for  torts  of  agents; 
(3  L.R.A.  734)  on  expulsion  of  passenger  from  train;  (4  L.R.A.  (N.S.)  503)  on 
liability  of  carrier  for  malicious  act  of  servant  beyond  scope  of  employment  when 
master  owes  special  duty  to  party  injured;  (54  Am.  St.  Rep.  86)  on  liability  of 
carrier  for  wilful,  malicious  or  criminal  acts  of  servants;  (88  Am.  St.  Rep.  792) 
on  liability  of  Carrier  for  unauthorized  acts  of  agent;  (40  L.R.A. (N.S. )  1042, 
1044,  1052,  1055,  1084)  on  liability  of  carrier  for  wilful  torts  of  servants  to 
passengers. 

Distinguished  in  Bess  v.  Chesapeake  &  O.  R.  Co.  35  W.  Va.  496,  29  Am.  St. 
Rep.  820,  14  S.  E.  234,  holding  railroad  not  liable  for  assault  on  trespasser  not  in 
course  of  employment;  Holler  v.  Ross,  68  N.  J.  L.  328,  59  L.  R.  A.  945,  96  Am. 
St.  Rep.  546,  53  Atl.  472,  denying  employer's  liability  for  servant's  shooting 
trespasser  upon  realty  on  which  master's  property  stored. 


3  L.E.A.  634]  L.  R.  A.  CASES  AS  AUTHORITIES.  556 

Corporate    liability    for    exemplary    damages. 

Cited  in  Texas  &  P.  Coal  Co.  v.  Lawson,  10  Tex.  Civ.  App.  496,  31  S.  YV.  843, 
holding  corporation  whose  officers  conspire  to  ruin  plaintiff's  business  liable  for 
exemplary  damages;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Reed,  80  Tex.  365,  26  Am.  St. 
Rep.  749,  15  S.  W.  1105,  holding  railroad  company  not  authorizing  or  ratifying 
act  of  yardmaster  throwing  carcasses  in  stream  not  liable  for  exemplary  dam- 
ages. 

Cited  in  notes  (4  L.R.A.(N.S.)  507;  37  L.  ed.  U.  S.  98)  on  liability  of  railroad 
or  other  corporation  for  punitive  or  exemplary  damages. 

3  L.  R.  A.  639,  MISSOURI  P.  R.  CO.  v.  PLATZER,  73  Tex.  117,  15  Am.  St.  Rep. 

771,  11  S.  W.  160. 
Question    for   jury. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Lewis,  5  Tex.  Civ.  App.  642,  25  S.  W. 
293,  holding  negligence  of  railway  company  should  not  have  been  submitted  to 
jury  unless  it  was  proximate  cause  of  injury;  Texas  &  P.  R.  Co.  v.  Moore.  8  Tex. 
Civ.  App.  296,  27  S.  W.  962,  holding  knowledge  by  servant  of  rule  of  railroad 
company  should  have  been  assumed  in  instruction  to  jury;  Rost  v.  Missouri  P. 
R.  Co.  76  Tex.  173,  12  S.  W.  1131,  holding  refusal  to  charge  upon  point  not  in 
petition  and  proof,  no  error;  Houston  &  T.  C.  R.  Co.  v.  Anderson,  44  Tex.  Civ. 
App.  397,  98  S.  W.  440,  holding  where  oil  train  was  wrecked  and  oil  ran  onto 
adjacent  property  for  several  days  without  any  attempt  on  the  part  of  the  rail- 
road company  to  stop  it,  the  question  of  negligence  was  for  the  jury. 
Charge  upon  issues  mot  raised  by  evidence. 

Cited  in  Whitaker  v.  Thayer,  38   Tex.  Civ.  App.  539,  86   S.  W.  364,  holding 
•charge  erroneous  where  there  was  no  evidence  submitted  which  raised  an  issue 
on  the  point. 
Currier's   liability   for   spread   of   fire. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Chittim,  31  Tex.  Civ.  App.  43,  71  S. 
W.  294,  holding  it  not  negligence  for  train  crew  not  to  leave  train  to  extinguish 
fires  started  by  sparks;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Brough,  168  Ind. 
380,  12  L.R.A.(N.S.)  402,  81  N.  E.  57,  holding  duty  of  railroad  company  to  pre- 
vent spread  of  fires  upon  right  of  way,  is  secondary  to  duty  toward  state  to 
operate  its  trains  on  time;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Meentzen  Bros.  52  Tex.  Civ. 
App.  420,  113  S.  W.  1000,  holding  that  railroad  employees,  though  they  heard 
cries  for  help  and  knew  of  existence  of  fire,  were  not  bound  to  assist  in  arresting.' 
fire,  unless  engine  started  fire;  Pfeiffer  v.  Aue,  53  Tex.  Civ.  App.  09.  115  S.  W. 
300,  holding  landowner  not  liable  for  spread  of  fire  to  adjoining  premises,  if  he 
uses  reasonable  care  to  prevent  its  spreading. 

Cited  in  footnotes  to  Louisville.  X.  A.  &  C.  R.  Co.  v.  Hart,  4  L.R.A.  549. 
•which  holds  railroad  company  liable  for  tire  set  by  sparks  from  locomotive 
spreading  from  right  of  way:  Norfolk  &  W.  R.  Co.  v.  Fritts,  68  L.R.A.  SG4,  which 
sustains  liability  for  fire  of  railroad  company  unnecessarily  running  heavy 
freight  train  up  grade  at  double  its  scheduled  speed  in  dry  season  and  during 
heavy  wind. 

Cited  in  notes  (11  L.  R.  A.  507)  on  right  of  railroad  company  to  burn  com- 
hustibles  on  its  right  of  way;  (9  L.  R.  A.  750)  on  duty  and  obligations  of  rail- 
road company  to  guard  against  setting  out  tires;  (5  L.  R.  A.  591)  on  negligence 
of  railroad  company  in  not  keeping  track  clear  of  combustibles. 

Liability    of    railroad    for    escape    of    injurious    substance    to    neighboring 
land. 

Cited  in  Houston  &  T.  C.  R.  Co.  v.  Crook.  50  Tex    Civ.  App.  30,  1:20  S.  W.  594, 


557  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  647 

holding  railroad  liable  for  escape  of  oil  from  tanks  and  engines  to  neighboring 
land. 

3  L.  R.  A.  642,  BELL  v.  INDIAN  LIVE  STOCK  CO.   (Tex.)    11  S.  W.  344. 
Garnishment    of    tvag-es. 

Cited  in  Dempsey  v.  McKennell,  2  Tex.  Civ.  App.  286,  23  S.  W.  525,  holding 
wages  due  for  services  under  a  contract  to  nurse  a  person  during  an  attack  of 
sickness  were  exempt  from  garnishment  though  the  amount  was  fixed. 

Cited  in  footnotes  to  Rustad  v.  Bishop,  50  L.  R.  A.  168,  which  denies  right  to1 
hold  back  successive  exempt  wages  by  successive  garnishments  and  reach  same 
by  new  garnishment  after  exemption  period  expires;  Siever  v.  Union  P.  R.  Co. 
(51  L.  R.  A.  319,  which  sustains  right  to  injunction  against  prosecution  of  multi- 
plicity of  garnishment  proceedings  for  exempt  wages. 

Cited  in  note  (102  Am.  St.  Rep.  92,  95,  96)  on  exemption  of  wages,  salaries, 
and  earnings. 

Distinguished  in  Sydnor  v.  Galveston,  4  Tex.  App.  Civ.  Cas.  (Willson)   95,  15 
S.  W.  202,  holding  that  compensation  from  city  to  physician,  under  employment 
to  attend  small-pox  patients  for  certain  number  of  days  at  certain  sum  per  day, 
is  exempt  from  garnishment. 
Nonresident's   right    to    exemptions. 

Cited  in  Bond  v.  Turner,  33  Or.  555,  44  L.  R.  A.  431,  54  Pac.  158,  sustaining 
nonresident's  right  to  claim  exemption  of  furniture;  Himmel  v.  Eichengreen,  107 
Md.  615,  69  Atl.  511,  holding  nonresident  entitled  to  exemption  of  money  or  oth- 
er benefit  to  be  paid  by  fraternal  insurance  company,  from  attachment  or 
garnishes. 

"Current." 

Distinguished  in  Berlin  Iron  Bridge  Co.  v.  San  Antonio,  62  Fed.  890,  holding 
a  debt  created  by  city  in  erecting  bridge  was  not  a  current  expense  to  be  paid 
out  of  current  revenues,  though  it  was  to  be  paid  immediately. 
Definition    of   wages. 

Cited  in  First  Nat.  Bank  v.  Barnum,  160  Fed.  247,  holding  that  music  teacher 
is  not  wage-earner  under  bankruptcy  act. 

3  L.  R.  A.  644,  ANDERSON  v.  STATE,  27  Tex.  App.  177,  11  Am.  St.  Rep.  189, 

11  S.  W.  33. 
Negligent    homicide. 

Approved  in  People  v.  Davis,  1  111.  C.  C.  262,  holding  person  not  guilty  of 
manslaughter  merely  because  at  time  of  killing  he  was  engaged  in  an  unlawful 
act  or  omission  unless  it  was  the  natural  consequence  that  it  was  dangerous 
to  life. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Ferrell,  39  Ind.  App.  536,  78  N.  E. 
988  (dissenting  opinion),  on  the  negligent  act  of  engineer  in  colliding  with  pas- 
senger coach,  as  manslaughter. 

Cited  in  notes  (61  L.R.A.  297)  on  negligent  homicide;  (90  Am.  St.  Rep.  572) 
on  unintentional  homicide  in  commission  of  unlawful  act;  (124  Am.  St.  Rep. 
328,  331)  on  homicide  by  inattention  or  neglect  of  duty. 

3  L.  R.  A.  647,  FARRELL  v.  RICHMOND  &  D.  R.  CO.  102  N.  C.  390,  11  Am.  St. 

Rep.  760,  9  S.  E.  302. 
When    goods    may    he    stopped    in    transit. 

Cited  in  Rogers  v.  Schneider,  13  Ind.  App.  30,  41  N.  E.  71,  holding  jury  shouhT 
determine  whether  goods  were  in  transit;  Williams  v.  Hodges,  113  N.  C.  38,  18 


3  L.R.A.  647]  L.  R.  A.  CASES  AS  AUTHORITIES.  558 

S.  E.  83,  holding  goods  not  in  transit  when  there  was  an  express  agreement  with 
carrier  that  they  should  be  held  in  storage  for  purchaser;  Lewis  v.  Sharvey, 
58  Minn.  471,  59  N.  W.  1096,  holding  goods  were  ?till  in  transit  when  stopped; 
Crass  v.  Memphis  &  C.  R.  Co.  96  Ala.  453,  11  So.  480,  holding  bill  of  inter- 
pleader in  case  of  goods  stopped  in  transit  objectionable,  and  permitting  amend- 
ment. 

Cited  in  footnotes  to  Johnson  v.  Eveleth,  48  L.  R.  A.  50,  which  holds  logs  sub- 
ject to  stoppage  in  transitu  while  being  driven  down  river  by  log-driving  com- 
pany; Jeffris  v.  Fitchburg  R.  Co.  33  L.  R.  A.  351,  which  holds  right  to  stoppage 
in  transitu  not  defeated  by  delivery  of  part  of  consignment;  Brewer  Lumber 
Co.  v.  Boston  &  A.  R.  Co.  54  L.  R.  A.  435,  which  holds  right  of  stoppage  in  tran- 
situ not  lost  by  carriers  storage  for  failure  to  unload  in  time,  while  freight 
charges  unpaid. 

Cited  in  notes  (4  L.  R.  A.  732;  11  L.  R.  A.  347,  349)  on  right  of  stoppage  in 
transitu;  (15  Am.  St.  Rep.  430;  23  Eng.  Rul.  Cas.  410)  on  right  of  stoppage  in 
transitu;  (23  Eng.  Rul.  Cas.  433)  on  termination  of  right  of  stoppage  in  transitu. 
Charge  to  Jury. 

Cited  in  Willis  v.  Atlantic  &  D.  R.  Co.  122  N.  C.  909,  29  S.  E.  941,;  Norton 
v.  North  Carolina  R.  Co.  122  N.  C.  934,  29  S.  E.  886;  Bottoms  v.  Seaboard  & 
R.  R.  Co.  109  N.  C.  72,  13  S.  E.  738;  Witsell  v.  West  Asheville  &  S.  S.  R.  Co. 
120  N.  C.  558,  27  S.  E.  125, —  holding  refusal  to  charge  that  plaintiff  cannot  re- 
cover, no  error;  Alexander  v.  Richmond  &  D.  R.  Co.  112  N.  C.  732,  16  S.  E.  896, 
holding  charge  that  recovery  cannot  be  had  not  objectionable  if  it  cannot  mislead ; 
Postal  Teleg.-Cable  Co.  v.  Grantham,  109  C.  C.  A.  370,  187  Fed.  62,  holding  that 
instructions  concluding  with  words  "plaintiff  cannot  recover"  are  properly  re- 
fused; Jones  v.  Balsley,  154  N.  C.  65,  69  S.  E.  827,  holding  that  prayer  for 
instruction  that  if  jury  believe  evidence,  plaintiffs  are  not  entitled  to  recover  may 
be  disregarded,  when  case  is  tried  upon  specific  issues. 

3  L.  R.  A.  653,  SESLER  v.  MONTGOMERY,  78  Cal.  486,  12  Am.  St.  Rep.  76, 

19  Pac.  686,  21  Pac.  185. 
Libel  and  slander. 

Cited  in  footnotes  to  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged;  Wilcox  v.  Moon,  15  L. 
R.  A.  760,  which  holds  libel  on  woman  not  published  to  husband  by  his  reading 
sealed  letter  addressed  to  her. 

Cited  in  note  (9  L.  R.  A.  621)   on  what  constitutes  libel. 
Comments  on  failure  to  produce  witnesses. 

Cited  in  Chicago,  B.  &  Q.  R.  Co.  v.  Krayenbuhl,   70  Neb.   771,  98  N.  W.  44, 
holding  it  is  customary  to  permit  attorneys  to  comment  on  the  failure  to  produce 
Avitnesses  who  have  been  shown  to  know  the  facts. 
Reference  to  common-law  to  supplement  statute. 

Cited  in  People  v.  Vasquez,  9  Cal.  App.  548,  99  Pac.  982,  holding  where  code 
iailed  to  provide  as  to  who  should  summon  jurors  when  sheriff  was  disqualified, 
reference  must  be  had  to  the  common-law. 

3  L.  R.  A.  654,  McGHEE  v.  EDWARDS,  87  Tenn.  506,  11  S.  W.  316. 
Privity  of  liens. 

Cited  in  Wright  v.  Sherman,  3  S.  D.  296,  17  L.  R.  A.  794,  52  X.  W.  1003.  and 
Hanch  v.  Ripley,  127  Ind.  155,  11  L.  R.  A.  63,  26  N.  E.  70,  holding  adjuster's 
lien  inferior  to  prior  recorded  chattel  mortgage;  Sullivan  v.  Clifton,  55  N.  J. 
L.  325,  20  L.  R.  A.  720,  39  Am.  St.  Rep.  652,  26  Atl.  964,  holding  liveryman's 


559  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  659 

lien  subordinate  to  prior  mortgage;  Stone  v.  Kelley,  59  Mo.  App.  220,  and  Lazar- 
us v.  Moran,  64  Mo.  App.  241,  holding  livery-stable  keeper's  lien  subordinate  to 
prior  mortgage;  Howard  v.  Gemming,  10  Wash.  3,  38  Pac.  748,  holding  costs  of 
foreclosure  of  second  mortgage  can  only  be  paid  out  of  proceeds  of  property  after 
first  mortgage  satisfied. 

Cited  in  footnote  to  Sullivan  v.  Clifton,  20  L.  R.  A.  719,  which  holds  livery- 
stable  keepers  lien  subordinate  to  prior  recorded  mortgage. 

Cited  in  notes  (12  L.R.A.  (N.S.)  311)  on  priority  as  between  chattel  mortgage 
and  lien  for  food  or  care  furnished  animals;  (22  Am.  St.  Rep.  624)  on  right 
to  mechanic's  lien. 

Distinguished  in  Heckman  v.  Tammen,  84  111.  App.  551,  holdirqj  that  laborer's 
liens  have  priority  over  prior  chattel  mortgage. 

3  L.  R.  A.  656,  SHELDON  AXLE  CO.  v.  STANDARD  AXLE  WORKS,  37  Fed. 

789. 


in    patented    article. 

Cited  in  Jackson  v.  Vaughan,  73  Fed.  839,  holding  patented  article  purchased 
in  one  territory  may  be  sold  in  another;  California  Electrical  Works  v.  Finck, 
47  Fed.  585,  holding  purchaser  of  patented  article  cannot  sell  it  in  territory  be- 
longing to  assignee  of  patentee. 

Cited  in  footnotes  to  Heaton-Peninsular  Button-Fastener  Co.  v.  Eureka  Spe- 
cialty Co.  35  L.  R.  A.  728,  which  sustains  patentee's  right  to  require  purchaser 
of  machine  to  purchase  necessary  unpatented  article  from  him  exclusively;  Good- 
year Shoe  Mach.  Co.  v.  Jackson,  55  L.  R.  A.  692,  which  holds  purchaser  of 
patented  article  entitled  to  have  it  repaired  or  restored  after  decay  or  injury, 
but  not  to  have  it  entirely  reconstructed. 

Cited  in  note  (55  L.  R.  A.  636)  on  right  of  purchaser  of  personal  property  to 
sell  or  use  it  free  from  restrictions  affecting  it  in  vendor's  hands. 

3  L.  R.  A.  658,  PARSONS  v.  LINDSAY,  41  Kan.  336,  13  Am.  St.  Rep.  290,  21  Pac. 

227. 
Sunday    law. 

Cited  in  Fox  v.  Nachtsheim,  3  Wash.  688,  29  Pac.  140,  holding  judgment  ren- 
dered on  Sunday  will  be  reviewed  on  appeal  to  determine  its  validity;  Standard 
Implement  Co.  v.  Parlin  &  O.  Co.  51  Kan.  576,  33  Pac.  363,  holding  delivery  of 
mortgage  on  Sunday  to  register  of  deeds,  with  request  to  file,  not  filing;  Ex 
partc  Tice,  32  Or.  188,  49  Pac.  1038,  holding  jury  cannot  be  discharged  on  Sunday 
because  of  failure  to  agree. 

Cited  in  footnotes  to  Sullivan  v.  Maine  C.  R.  Co.  8  L.  R.  A.  427  which  holds 
riding  for  exercise  on  Sunday  not  violation  of  statute;  Havens  v.  Stiles,  56  L. 
R.  A.  736,  which  authorizes  filing  complaint  and  issuing  summons  on  Sunday; 
Porter  v.  Pierce,  7  L.  R.  A.  847,  which  excludes  Sunday  in  determining  time  to 
redeem. 

Cited  in  notes  (11  L.  R.  A.  63)  on  legality  of  contract  made  on  Sunday;   (7  L. 
R.  A.   327)    on  receiving  verdict  on  Sunday. 
Common    law. 

Cited  in  notes  (22  L.  R.  A.  502)  on  adoption  of  common  law  in  the  United 
States. 

3  L.  R.  A.  659,  HARRISON  COUNTY  v.  SEAL,  66  Miss.  129,  14  Am.  St.  Rep. 

545,  5  So.  622. 
Dedication    of   streets. 

Cited  in  Heitz  v.  St.  Louis,  110  Mo.  626,  19  S.  W.  735,  holding  revocation  of 


3  L.R.A.  G59]  L.  R.  A.  CASES  AS  AUTHORITIES.  560- 

dedication  of  streets  not  accomplished  by  deeding  the  streets;  Riley  v.  Buchanan,. 
25  Ky.  L.  Rep.  867,  63  L.  R.  A.  645,  76  S.  W.  527,  holding  intention  to  dedicate 
street  presumed  where  use  suffered  for  long  time;  Riley  v.  Buchanan,  116  Ky.. 
633,  63  L.R.A.  642,  76  S.  W.  527,  3  A.  &  E.  Ann.  Cas.  788,  holding  dedication, 
of  highway  may  be  implied  from  long  continued  user  by  the  public;  Sowad/.ki 
v.  Salt  Lake  County,  36  Utah,  134,  104  Pac.  Ill,  holding  that  dedication  of 
streets  by  filing  plat  is  complete  without  formal  acceptance  by  public  author- 
ities; Pence  v.  Bryant,  54  W.  Va.  267,  46  S.  E.  275,  holding  dedication  of  land 
as  street  cannot  be  retracted  after  long  user,  though  there  has  been  no  formal 
acceptance  by  the  public  officials. 

Cited  in  notes  (6  L.  R.  A.  261)  on  estate  created  by  dedication;  (9  L.  R.  A. 
552)  on  dedication  of  land  by  platting  and  sale  of  lots;  (14  L.R.A. (N.S.)  1068) 
on  effect  of  conveyance  of  lots  laid  down  on  plats,  to  prevent  change  in  use  or 
form;  (57  Am.  St.  Rep.  752,  754)  on  highways  by  user. 

'6  L.  R.  A.  661,  PENSACOLA  &  A.  R.  CO.  v.  STATE,  25  Fla.  310,  2  Inters.  Com. 

Rep.  522,  5  So.  833. 
Enforcement    of   railroad    tariff    rates. 

Cited  in  Storrs  v.  Pensacola  &  A.  R.  Co.  29  Fla.  630,  11  So.  226,  holding  bill 
alleging  that  rates  fixed  by  state  commissioners  are  unjust  and  unreasonable 
compared  with  those  permitted  by  other  railways  not  sufficient;  State  ex  rel. 
Lamar  v.  Jacksonville  Terminal  Co.  41  Fla.  401,  27  So.  225,  holding  resort  to- 
mandamus  and  other  remedies  not  forbidden,  by  implication,  by  Constitution 
requiring  legislature  to  provide  penalties  and  forfeitures  for  violation  of  orders 
of  railroad  commissioners. 

Cited  in  note   (12  L.  R.  A.  436)   on  railroads  as  carriers  in  general. 
Duty  to  carry  at  reasonable  rates. 

Cited   in  State   ex  rel.   Ellis   v.   Atlantic   Coast  Line  R.   Co.   53   Fla.   671,   13 
L.R.A. (N.S.)    327,   44   So.   213,    12   A.   &   E.   Ann.   Cas.   359,   on   the   duty   of   a 
common  carrier  to  carry  for  a  reasonable  rate. 
Reasonableness    of    rates    determined    by    courts. 

Cited  in  Spring  Valley  Water  Works  v.  San  Francisco,  82  Cal.  315,  6  L.  E.  A. 
762,  16  Am.  St.  Rep.  116.  22  Pac.  910.  holding  reasonableness  of  water  rates 
fixed  by  municipality  subject  to  review  by  court  of  equity;  Storrs  v.  Pensacola 
&  A.  R.  Co.  29  Fla.  630,  11  So.  226,  holding  that  courts  cannot  determine  ques- 
tion when  there  is  room  for  a  difference  of  intelligent  opinion;  State  ex  rel. 
State  Railroad  Comrs.  v.  Seaboard  Air  Line  R.  Co.  48  Fla,  146,  37  So.  314.  on 
the  evidence  admissible  to  prove  reasonableness  of  rates. 

Cited  in  footnote  to  Fitzgerald  v.  Grand  Trunk  R.  Co.  13  L.  R.  A.  70,  which 
holds  agreement  for  rebate  to  one  shipper  illegal. 

Cited   in   note    (8   L.R.A. (N.S.)    530)    on   power   of   judiciary  to  fix   rates   of 
public-service  corporations. 
State  control  of  business  of  corporations  and  individuals. 

Cited  in  State  ex  rel.  Lamar  v.  Jacksonville  Terminal  Co.  41  Fla.  413,  27  So. 
225,  holding  state  entitled  to  regulate  charges  of  company  operating  common 
passenger  terminal  station  for  use  of  one  or  more  railroads;  Buffalo  v.  Collins 
Baking  Co.  24  Misc.  748,  53  N.  Y.  Supp.  968,  holding  city  ordinance  requiring 
all  bread  baked  by  licensed  bakers  to  be  made  into  loaves  of  1%  pounds  un- 
reasonable and  oppressive;  State  v.  Atlantic  Coast  Line  R.  Co.  56  Fla.  627,  32 
L.R.A. (N.S.)  656,  47  So.  969,  holding  that  the  states  are  supreme  as  to  the 
regulation  of  intra-state  commerce,  except  where  it  violates  the  Federal  con- 
stitution as  to  taking  private  property  without  due  process  of  law. 


561  L.  B.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  679 

Cited  in  footnote  to  Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  24  L.  R.  A.  141,  which 
holds  only  transportation  within  state  within  provisions  of  state  statute  regu- 
lating carriers'  rates. 

Cited  in  notes  (9  L.  R.  A.  755)  on  state  power  to  regulate  freights  and  fares; 
(33  L.R.A.  183)  on  legislative  power  to  fix  tolls,  rates,  or  prices;  (62  Am.  St. 
1'ep.  296,  298)  on  regulation  of  rates;  (44  L.  ed.  U.  S.  418)  on  reasonableness 
of  state  limitation  of  railroad  rates. 

3  L.  R.  A.  672,  STATE  ex  rel.  DICKINSON  v.  NEELY,  30  S.  C.  587,  9  S.  E.  664. 
Municipal  power  of  taxation. 

Cited  in  State  ex  rel.  Bartless  v.  Beaufort,  39  S.  C.  11,  17  S.  E.  355,  holding 
raxes  voted  by  town  must  be  for  welfare  of  town  and  for  corporate  purpose. 

Cited  in  note  (14  L.  R.  A.  479)  on  public  purposes  for  which  money  may  be 
appropriated  or  raised  by  taxation. 

Validity  of   township  bonds   in  aid  of  railroad. 

Cited  in  Darlington  v.  Atlantic  Trust  Co.  16  C.  C.  A.  34,  25  U.  S.  App.  354, 
68  Fed.  855,  holding  such  bonds  to  be  for  "corporate  purpose"  within  Constitu- 
tion of  South  Carolina;  Folsom  v.  Township  Ninety  Six,  159  U.  S.  624,  40  L. 
ed.  283,  16  Sup.  Ct.  Rep.  174,  holding  issue  not  contrary  to  Constitution  of 
South  Carolina,  requiring  taxes  assessed  to  be  for  "corporate  purpose;"  Con- 
g.iree  Constr.  Co.  v.  Columbia  Twp.  49  S.  C.  542,  27  S.  E.  570,  holding  uncon- 
stitutional, act  authorizing  township  to  issue  bonds  in  aid  of  construction  of 
railroad:  Massachusetts  &  S.  Constr.  Co.  v.  Cherokee  Twp.  42  Fed.  753,  sustain- 
ing order  requiring  delivery  of  bonds  issued  in  aid  of  railroad. 
Power  of  legislature  to  enact  curative  acts. 

Cited  in  Hodge  v.  School  Dist.  80  S.  C.  520,  61  S.  E.  1009,  holding  legislature 
has  authority  to  validate  any  act  which  it  might  have  authorized. 
Act   providing:  for  payment  of  illegal   bonds. 

Cited  in  Bouknight  v.  Davis,  33  S.  C.  413,  12  S.  E.  96,  holding  act  conclusive 
as  to  rights  of  parties  when  fact  that  aid  was  voted  is  not  denied;  Gorham  v. 
Broad  River  Twp.  109  Fed.  774;  Massachusetts  &  S.  Constr.  Co.  v.  Cane  Creek 
Twp.  45  Fed.  336 ;  Finance  Co.  v.  Charleston,  C.  &  C.  R.  Co.  52  Fed.  679, —  hold- 
ing act  providing  for  payment  of  illegal  township- bonds  not  in  conflict  with 
South  Carolina  Constitution;  Holstein  v.  Edgetield  County,  64  S.  C.  382,  42  S.  E. 
180,  holding  that  court  adjudging  void  act  authorizing  town  to  subscribe  for 
bonds  will  enforce  decision  of  United  States  circuit  court  upholding  act;  Graham 
v.  Folsom,  200  U.  S.  252,  50  L.  ed.  468,  26  Sup.  Ct.  Rep.  245  (affirming  131 
Fed.  496),  holding  that  the  legislature  could  invest  the  power  to  levy  taxes  for 
township,  in  the  county  officials,  where  the  township  had  been  destroyed  by 
legislative  action,  with  bonds  outstanding  against  it;  Smith  v.  Walker,  74  S. 
C.  527,  54  S.  E.  779,  holding  legislature  may  provide  for  the  payment  of  bonds 
of  a  municipal  corporation  which  has  been  defectively  organized,  by  taxes  upon 
property  represented  by  such  territory. 
Corporate  character  of  township. 

Cited  in  Granniss  v.  Cherokee  Twp.  47  Fed.  428,  holding  township  is  corporate 
body. 
Effect  of  act   repealing  charter  of  corporation. 

Cited  in  State  v.  Port  Royal  &  A.  R.  Co.  45  S.  C.  451,  23  S.  E.  363,  majority 
holding  that  act  does  not  operate  to  abate  pending  suit  for  forfeiture  of  charter. 

3  L.  R.  A.  (170.  SPRAGUE  v.  WARREN,  26  Neb.  326,  41  N.  W.  1113. 
Wagering  contract   invalid. 

Cited   in  Morrissey  v.   Broomal,   37   Neb.   785,   56   N.   W.   383,   and   Watte  v. 
L.IUA.  Au.  Vol.  I.— 36. 


3  L.R.A.  679]  L.  R.  A.  CASES  AS  AUTHORITIES.  562 

Wickersham,  27  Neb.  473,  43  N.  W.  250.  holding  purchase  of  grain,  where  no 
delivery  intended,  but  performance  to  be  by  settlement  of  differences,  is  wagering 
contract,  and  void;  Wheeler  v.  Metropolitan  Stock  Exchange,  72  N.  H.  319, 
56  Atl.  754,  holding  contract  for  purchase  and  sale  of  stock,  without  actual 
delivery,  one  party  to  pay  difference  between  contract  price  and  market  price, 
illegal;  Beidler  &  R.  Lumber  Co.  v.  Coe  Commission  Co.  13  X.  D.  647,  102  N. 
W.  880,  holding  a  contract  for  the  delivery  of  grain  in  the  future,  made  without 
intention  to  so  deliver  but  to  settle  the  difference  in  market  price  in  cash,  was 
a  wagering  contract,  and  void;  Mendel  v.  Boyd,  3  Neb.  (Unof.)  478,  91  N.  W. 
860,  holding  speculations  on  the  rise  and  fall  of  the  market  were  gambling 
transactions  and  void. 

Cited  in  footnotes  to  Appleton  v.  Maxwell,  55  L.  R.  A.  93,  which  denies  right 
of  action  for  money  loaned  to  be  used  in  gambling;  Cashman  v.  Root,  12  L.  R.  A. 
511,  which  holds  void  purchase  of  stock  on  margin  by  broker  for  customer; 
Booth  v.  People,  50  L.  R.  A.  762,  which  sustains  statute  making  options  for 
sale  of  commodities  which  have  been  subject  of  gambling  operations  unlawful; 
First  Nat.  Bank  v.  Carroll,  8  L.  R.  A.  275,  which  holds  guaranty  that  cattle 
will  sell  at  specified  price,  in  consideration  of  receiving  all  above  such  price, 
gambling  contract;  Jemison  v.  Citizens'  Sav.  Bank,  9  L.  R.  A.  708,  which  holds 
speculative  dealing  in  cotton  futures  by  savings  bank,  ultra  vires;  Drinkall  v. 
Movius  State  Bank,  57  L.  P..  A.  341,  which  holds  title  to  cashier's  check,  acquired 
by  payee's  indorsement  to  gambler  in  payment  for  chips  to  be  used  in  gambling, 
defective;  Olson  v.  Sawyer  Goodman  Co.  53  L.  R.  A.  648,  which  holds  void  an 
agreement  to  debit  and  credit,  on  accounts  due  employees,  their  winnings  at 
card  games  writh  each  other;  Ullman  v.  St.  Louis  Fair  Asso.  56  L.  R.  A.  606, 
which  denies  right  to  abandon  partly  executed,  illegal  bookmaking  contract  for 
specified  period,  and  recover  back  pro  rata  amount  of  money  paid;  Central  Stock 
&  Grain  Exchange  v.  Bendinger,  56  L.  R.  A.  875,  which  holds  broker  liable  to 
refund  to  principal  money  illegally  taken  from  agent  as  margin  on  gambling 
transaction;  Scales  v.  State,  66  L.R.A.  730,  which  holds  wagering  contract  in 
future  not  shown  by  fact  that  purchaser  intended  to  sell  his  contract  before 
time  for  performance  arrived  unless  noncontemplation  of  actual  performance 
of  obligation  by  other  party  is  also  shown. 

Cited  in  note  (5  L.  R.  A.  201)   on  wagers  and  wagering  contracts. 
Recovery  under  illegal  contract. 

Cited  in  Ives  v.  Boyce,  85  Neb.  325,  25  L.R.A.  (N.S.)  150.  123  N.  W.  318, 
holding  no  recovery  can  be  had  at  common-law  under  illegal  contracts. 

Cited  in  footnotes  to  Baxter  v.  Deneen,  64  L.R.A.  949,  which  holds  that  broker 
with  whom  margins  have  been  deposited  in  a  stock  gambling  transaction  will 
not  be  enjoined  from  violating  agreement  to  keep  them  on  deposit  in  a  specified 
bank  until  the  transaction  is  closed:  Fuller  v.  Berger,  65  L.R.A.  381,  which 
holds  that  equity  will  not  refuse  relief  against  infringement  of  patent  because 
owner  has  devoted  it  wholly  to  an  immoral  use. 

Cited  in  notes    (11  L.R.A.  (N.S.)    577)    on  right  of  broker  to  recover  commis- 
sions or  advances  in  furthering  wagering  contract;    (119  Am.  St.  Rep.  174,  175i 
on  defenses  to  obligations  given  for  gambling  debts. 
Courts    will    u<>    behind    contract    to    determine    character. 

Cited  in  Rogers  v.  Marriott,  59  Neb.  775,  82  N.  W.  21,  holding  courts  not 
bound  by  form  of  contract  if  evidence  shows  it  is  based  on  wagering  transaction ; 
Dows  v.  Glaspel,  4  N.  Dak.  266,  60  N.  \Y.  60,  and  Mohr  v.  Miesen,  47  Minn.  234, 
49  N.  W.  862,  holding  real  understanding  between  parties  may  be  gathered  from 
facts  and  attending  circumstances. 


563  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.lt.A.  683 

Cited   in  note    (22  L.R.A. (X.S.)    177)    on  inference  as  to  character  of  trans- 
action on  margin. 
Burden    of    proof    on    party    enforcing:    contract. 

Cited  in  Bartlett  v.  Collins,  109  Wis.  484,  83  Am.  St.  Rep.  928,  85  N.  W.  703, 
holding  that  to  support  purchase  of  grain  for  future  delivery,  it  must  appear  that 
actual  delivery  and  receipt  of  grain  intended. 
Effect    of    finding-    of    trial    court    on    appeal. 

Distinguished  in  Mulford  v.  Caesar,  53  Mo.  App.  272,  holding  finding  of  trial 
court  against  wagering  character  of  contract  is  binding  on  appeal. 

3  L.  R.  A.  683,  PARSONS  v.  NEW  YORK  C.  &  H.  R.  R.  CO.   113  N.  Y.  355, 

10  Am.  St.  Rep.  450,  21  N.  E.  145. 
When    railroad    liable    for    negligence. 

Cited  in  Daniel  v.  Petersburg,  R.  Co.  117  N.  C.  612,  23  S.  E.  327,  holding 
railroad  liable  for  killing  of  passenger  by  its  employee,  while  getting  his  bag- 
gage; Jewell  v.  New  York  C.  &  H.  R.  R.  Co.  27  App.  Div.  502,  50  N.  Y.  Supp. 
848,  holding  railroad's  negligence  question  for  jury,  where  train  was  driven  at 
high  speed  past  train  at  station  from  which  passengers  alighting;  Golberg  v. 
Xew  York  C.  &  H.  R.  R.  Co.  39  N.  Y.  S.  R.  786,  15  N.  Y.  Supp.  579,  holding 
railroad  liable  for  injuries  to  passenger  alighting  from  train  and  crossing  track 
to  reach  river;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64  Neb.  640,  57  L.  R.  A. 
S92,  97  Am.  St.  Rep.  666,  90  N.  W.  649,  holding  that  passenger  alighting  from 
train  without  invitation  of  company,  express  or  implied,  or  for  some  necessity- 
tine  to  traveling,  must  exercise  ordinary  care;  Birmingham  R.  Light  &  P.  Co. 
v.  Jung,  161  Ala.  473,  49  So.  434,  holding  that  if  the  passenger  has  the  consent 
of  the  conductor  to  temporarily  leave  the  car  at  a  place  at  which  passengers 
are  not  received,  the  carrier  owes  the  former  the  duty  to  see  that  he  is  not 
in  a  place  of  danger  before  moving  the  car;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Glossup.  88  Ark.  229,  114  S.  W.  247;  Gannon  v.  Chicago,  R.  I.  &  P.  R.  Co.  141 
Iowa,  40,  23  L.R.A. (N.S.)  1062,  117  N.  W.  966,— holding  person  who  had 
alighted  upon  a  station  platform  for  the  purpose  of  exercise  and  recreation 
•was  still  a  passenger  to  whom  railway  owed  duty  of  protection. 

Cited  in  notes  (11  L.  R.  A.  385)  on  duty  of  railroad  employees  in  approaching 
road  crossings  to  give  warning;  (11  L.  R.  A.  435)  on  rate  of  speed  of  railroad 
train;  (10  L.  R.  A.  140)  on  duty  owed  by  railroad  company  to  intruders  and 
trespassers;  (7  L.  R.  A.  316)  on  duty  of  railroad  company  to  give  warning  on 
approaching  highway  crossing;  (7  L.  R.  A.  Ill)  on  duty  of  railroads  to  furnish 
safe  stations  and  platforms  for  use  of  passengers;  (9  L.  R.  A.  161)  on  high 
rate  of  speed;  (40  L.R.A.  (N.S.)  1060,  1064)  on  liability  of  carrier  for  wilful 
torts  of  servants  to  passengers. 

Distinguished  in  Silberstein  v.  Houston,  W.  a.  &  P.  Ferry  R.  Co.   117  N.  Y. 
296,  22  N.  E.  951,  holding  evidence  of  icy  condition  between  railway  tracks  not 
admissible  to  impute  negligence. 
Contributory    negligence    for    jury. 

Cited  in  Chicago,  St.  L.  &  P.  R.  Co.  v.  Spilker,  134  Ind.  410,  33  N.  E.  280, 
holding  contributory  negligence  not  necessarily  shown  where  traveler,  before  driv- 
ing across  tracks,  stopped  twice,  looked  and  listened ;  O'Harra  v.  New  York  C. 
&  H.  R.  R.  Co.  92  Hun,  60,  36  N.  Y.  Supp.  567,  holding  contributory  negligence 
of  militiaman  called  by  railroad  company  to  guard  its  property,  and  killed 
while  on  duty  at  end  of  "dead"  cars,  for  jury;  Watson  v.  Oxanna  Land  Co.  92 
Ala.  326,  8  So.  770,  holding  negligence  of  passenger  not  necessarily  disclosed, 
.although  he  might  have  seen  hole  had  he  looked;  Turell  v.  Erie  R.  Co.  49 


3  L.R.A.  683]  L.  R.  A.  CASES  AS  AUTHORITIES.  564 

App.  Div,  97,  63  N.  Y.  Supp.  402,  holding  question  for  jury  to  determine,  where 
thirteen-year-old  boy  stopped  and  listened,  and  testified  he  did  not  hear  or  see- 
train;  Beeeher  v.  Long  Island  R.  Co.  35  App.  Div.  290,  55  X.  Y.  Supp.  23,  holding 
it  for  jury  where  deceased  passenger  crossed  track  that  had  not  been  used  for 
incoming  train  for  long  time;  Conley  v.  Albany  R.  Co.  22  App.  Div.  325.  47 
N.  Y.  Supp.  738,  holding  it  for  jury  where  deceased  crossed  trolley  track  behind 
another  car;  Harper  v.  Delaware,  L.  &  W.  R.  Co.  22  App.  Div.  276,  47  X.  Y.  Supp. 
933,  holding  it  for  jury  where  motorman  attempted  to  cross  track,  and  was 
invited  by  his  conductor,  ahead  of  car,  to  come  on;  Martin  v.  Third  Ave.  R.  Co.- 
27  App.  Div.  63,  50  X.  Y.  Supp.  284,  holding  it  for  jury  where  man  crossing 
tra«k  was  struck  by  one  car  in  going  behind  another;  Smith  v.  Xe\v  York  C.  & 
H.  R.  R.  Co.  4  App.  Div.  496,  38  X.  Y.  Supp.  668,  holding  it  for  jury  where 
evidence  conflicting  as  to  the  giving  of  signals;  Haupt  v.  Xew  York  C.  &  H.  R. 
R,  Co.  20  Misc.  294,  45  X.  Y.  Supp.  666,  holding  it  for  jury  where  traveler's 
first  view  of  tracks  is  only  when  he  is  upon  them;  Bond  v.  Xew  York  C.  &: 
H.  R.  R.  Co.  69  Hun,  478,  23  X.  Y.  Supp.  450,  holding  it  for  jury  where- 
traveler  drove  onto  crossing  on  trot  after  gates  had  been  raised  and  invitation' 
given  by  gate-keeper;  Zwack  v.  Xew  York,  L.  E.  &  W.  R.  Co.  8  App.  Div.  488. 
40  X.  Y.  Supp.  821,  holding  it  for  jury  where  boy  looked  both  ways  and  did 
not  see  approaching  train ;  Seeley  v.  Xew  York  C.  &  H.  R.  R.  Co.  8  App.  Div.  406, 
40  X.  Y.  Supp.  866,  holding  it  for  jury  where  deceased  looked  both  ways  before 
crossing;  Wilber  v.  Xew  York  C.  &  H.  R.  R,  Co.  8  App.  Div.  142,  40  X.  Y.  Supp. 
471,  holding  it  for  jury  where  evidence  conflicting  as  to  distance  train  could  be 
seen  through  falling  snow ;  Wilbur  v.  Delaware,  L.  &  W.  R.  Co.  85  Hun,  157,. 
32  X.  Y.  Supp.  479,  holding  it  for  jury  where  deceased  struck  by  flyer,  and 
evidence  conflicting  as  to  giving  of  signals;  McPeak  v.  Xew  York  C.  &  H.  R. 
R.  Co.  85  Hun,  113,  32  X.  Y.  Supp.  647,  holding  it  for  jury  where  injured 
person  crossing  track  could  hear  nothing  because  of  noise  of  stalled  freight  engine ; 
Kelsey  v.  Staten  Island  Rapid  Transit  R.  Co.  78  Hun,  209,  28  X.  Y.  Supp.  974. 
holding  it  for  jury  where  it  was  a  question  whether  injured  person  exercised 
ordinary  care  at  highway  crossing;  Pitts  v.  Xew  York,  L.  E.  &  W.  R.  Co.  79- 
Hun,  549,  29  X.  Y.  Supp.  871,  holding  it  for  jury  where  evidence  conflicting  as 
to  distance  at  which  headlight  of  locomotive  might  have  been  seen;  Richardson 
v.  Xew  York  C.  &  H.  R.  R.^Co.  40  X.  Y.  S.  R.  618,  15  X.  Y.  Supp.  868,  holding 
it  for  jury  where  woman  drives  across  tracks  upon  invitation  of  flagman,  as  she 
believes;  Tucker  v.  Xew  York  C.  &  H.  R.  R.  Co.  33  X.  Y.  S.  R.  865,  11  X.  Y. . 
Supp.  692,  holding  question  for  jury  in  case  of  boy  struck  on  crossing,  and 
evidence  conflicting  as  to  blowing  of  locomotive  whistle  and  ringing  of  bell ; 
Murphy  v.  Rome,  W.  &  O.  R.  Co.  32  X.  Y.  S.  R.  382,  10  X.  Y.  Supp.  354,  holding 
jury  should  determine  as  to,  when  passenger  alighted  from  train  as  it  war- 
being  started;  Wiel  v.  ^Yright,  29  X.  Y.  S.  R.  765,  8  X.  Y.  Supp.  776,  holding 
it  for  jury  when  evidence  is  conflicting  as  to  whether  person  injured  by  horse, 
saw  it  before  he  was  struck;  Popp  v.  Xew  York  C.  &  H.  R.  R.  Co.  26  X.  Y. 
S.  R.  639,  7  X.  Y.  Supp.  249,  holding  it  for  jury  where  plaintiff's  wagon  struck 
while  crossing  track  after  listening  for  train;  Moeller  v.  Brewster,  57  Hun,  555, 
11  X.  Y.  Supp.  484,  holding  it  for  jury  where  deceased  was  testing  radiators; 
Wall  v.  Delaware,  L.  &  W.  R.  Co.  54  Hun,  460,  7  X.  Y.  Supp.  709,  holding  il 
for  jury  where  evidence  as  to  whether  locomotive  whistle  blown  contradictory; 
Beckwith  v.  Xew  York  C.  &  H.  R.  R,  Co.  54  Hun,  449,  7  X.  Y.  Supp.  719, 
holding  it  for  jury  when  approaching  train  was  neither  seen  nor  heard;  Wiwi- 
rowski  v.  Lake  Shore  &  M.  S.  R.  Co.  58  Hun,  42,  11  X.  Y.  Supp.  361,  holding  it 
question  for  jury  when  evidence  shows  that  no  danger  was  disclosed  by  careful 
observation;  Dobert  v.  Troy  City  R.  Co.  91  Hun,  33,  36  X.  Y.  Supp.  105,  holding 


565  L.  E.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  683 

jury  should  determine,  where  passenger  alighted  and  passed  behind  his  car  and 
onto  adjoining  track;  Dwinelle  v.  New  York  C.  &  H.  R.  R.  Co.  120  N.  Y.  122, 
8  L.  R.  A.  226,  17  Am.  St.  Rep.  611,  24  N.  E.  319,  holding  jury  must  determine 
whether  sleeping-car  porter  was  acting  within  scope  of  his  duty  at  the  time  he 
assaulted  passenger;  Gradert  v.  Chicago  &  X.  W.  R.  Co.  109  Iowa,  551,  80  N.  W. 
-559,  holding  it  for  jury  where  passenger  was  killed  by  collision  after  mounting 
platform  of  way  car  of  freight  train;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Shean,  18 
Colo.  372,  20  L.  R.  A.  730,  33  Pac.  108,  holding  it  for  jury  where  passenger  did 
not  look  and  listen  before  crossing  track;  Haden  v.  Clarke,  32  N.  Y.  S.  R.  480, 
10  X.  Y.  Supp.  291,  holding  question  for  jury  when  traveler  injured  at  toboggan 
slide;  Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  432,  36  L.  ed.  494,  12  Sup.  Ct.  Rep. 
679,  holding  contributory  negligence  of  deceased  for  jury  and  fully  covered  by 
charge;  Zucker  v.  Whitridge,  143  App.  Div.  202,  128  N.  Y.  Supp.  233,  holding 
^contributory  negligence  of  pedestrian  crossing  street  railroad  tracks  when  car 
temporarily  obstrvicted  his  view,  question  of  fact;  Popp  v.  Xew  York  C.  £  H 
R.  R.  Co.  4  Silv.  Sup.  Ct.  244,  7  N.  Y.  Supp.  249,  holding  contributory  negligence 
•was  for  jury  where  it  is  to  be  inferred  from  the  evidence;  Towns  v.  Rome,  W. 
&  0.  R.  Co.  4  Silv.  Sup.  Ct.  335,  8  N.  Y.  Supp.  137,  holding  contributory  negli- 
gence of  milkman  crossing  tracks  where  view  was  obstructed,  question  of  fact. 

Cited  in  footnotes  to  Lorenz  v.  Burlington,  C.  R.  &  X.  R.  Co.  56  L.R.A.  752, 
which  holds  negligence  of  one  pursuing  cow,  in  not  looking  and  listening  before 
crossing  railroad  track,  for  jury;  Colorado  &  Southern  R.  Co.  v.  Thomas,  70 
L.R.A.  681,  which  holds  failure  to  look  and  listen  before  crossing  track  not 
excused  by  existence  of  building  adjoining  highway  which  would  obstruct  view 
of  tracks  and  by  noise  created  therein  which  would  prevent  hearing  approaching 
train. 

Cited  in  note    (27  L.R.A.  (X.S.)    129)    on  duty  of  passenger  to  stop,  look,  and 
listen  before  crossing  track  adjacent  to  his  train. 
Contributory  neg'ligrence  as  matter  of  law. 

Cited  in  Grostick  v.  Detroit,  L.  N.  R.  Co.  90  Mich.  617,  51  N.  W.  667  (dis- 
senting opinion),  majority  holding  it  contributory  negligence,  as  matter  of  law, 
if  man  crossing  track  neither  looks  nor  listens;  McGoldrick  v.  Xew  York  C.  & 
H.  R.  R.  Co.  49  N.  Y.  S.  R.  568,  20  N.  Y.  Supp.  914,  holding  it  not  negligence, 
^s  matter  of  law,  for  one  to  carry  knife  wrapped  up  in  way  in  which  he  has 
carried  it  safely  for  years;  Cranch  v.  Brooklyn  Heights  R.  Co.  186  X.  Y.  316, 
78  N.  E.  1078,  reversing  107  App.  Div.  342,  93  X.  Y*.  Supp.  169,  holding  woman 
who  stepped  from  a  place  of  safety  ahead  of  a  fast  running  train,  which  she 
knew  was  approaching,  but  expected  to  stop,  was  guilty  of  contributory  negli- 
gence as  a  matter  of  law,  when  she  did  not  look  to  see  how  close  the  train  was  -. 
Anderson  v.  Grand  Trunk  R.  Co.  27  Ont.  Rep.  447,  holding  person  not  guilty 
of  contributory  negligence  as  matter  of  law,  because  of  being  upon  track,  where 
impliedly  invited  by  company  recognizing  place  as  station;  Donnelly  v.  Katz. 
133  App.  Div.  908,  117  X.  Y.  Supp.  644  (dissenting  opinion),  on  what  con- 
stitutes contributory  negligence. 

Cited  in  footnotes  to  Woehrle  v.  Minnesota  Transfer  R.  Co.  52  L.  R.  A.  349, 
which  holds  traveler's  failure  to  look  and  listen,  when  watchman  absent,  not 
negligence  per  se;  Feeney  v.  Long  Island  R.  Co.  5  L.  R.  A.  544,  which  holds 
traveler  not  negligent  per  se  in  failing  to  notice  that  farther  gate  coming  down, 
before  reaching  it. 

Cited  in  notes  (8  L.  R.  A.  783)  as  to  when  contributory  negligence  not  a 
defense;  ( 16  L.  R.  A.  267)  on  presumption  as  to  exercise  of  due  care  by  person 
.found  to  have  been  killed  by  alleged  negligence  of  another. 


3  L.R.A.  683]  L.  R.  A.  CASES  AS  AUTHORITIES.  56$ 

Who   is   a   passenger. 

Cited  in  Alabama  G.  S.  R.  Co.  v.  Coggins,  32  C.  C.  A.  5,  60  U.  S.  App.  140,  8S-' 
Fed.  459,  holding  passenger  alighting  at  intermediate  station  for  refreshment 
or  exercise  is  still  a  passenger;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64  Neb.  647, 
57  L.  R.  A.  895,  97  Am.  St.  Rep.  666,  90  N.  W.  649,  holding  passenger  who  left 
his  train  on  a  siding  to  get  water  at  a  pump,  and  was  struck  returning,  not  ;i 
passenger  being  transported  over  road  within  statute ;  Dwindle  v.  New  York 
C.  &  H.  R.  R.  Co.  120  N.  Y.  126,  8  L.  R.  A.  226,  17  Am.  St.  Rep.  611,  24  X.  E. 
319,  holding  railroad  company  would  be  liable  for  injury  to  passenger  by  it* 
negligence,  while  waiting  on  its  grounds  for  extra  train ;  Arkansas  C.  R.  Co.  v. 
Bennett,  82  Ark.  400,  102  S.  W.  198,  holding  passenger  on  freight  train  does 
not  lose  his  character  as  such  by  leaving  the  train  to  talk  with  an  acquaintance 
while  the  cars  were  being  switched;  Laub  v.  Chicago,  B.  &  Q.  R.  Co.  118  Mo. 
App.  499,  94  S.  W.  550,  holding  person  who  had  alighted  at  an  intermediate 
station  at  the  invitation  of  the  carrier  to  obtain  lunch,  was  still  a  passenger,, 
though  at  the  time  was  walking  beside  the  train  for  purpose  of  exercise;  Miller 
v.  Brooklyn  Heights  R.  Co.  124  App.  Div.  538,  108  N.  Y.  Supp.  960,  holding; 
passenger  on  street  car  did  not  lose  character  as  such  by  walking  from  front 
platform  to  rear  to  demand  transfer,  where  his  leaving  car  was  made  necessary 
by  crowded  condition  of  car;  Daniel  v.  Petersburg  R.  Co.  117  N.  C.  612,  4 
L.R.A.(N.S.)  504,  23  S.  E.  327,  on  the  loss  of  character  as  passenger  by  alight- 
ing at  intermediate  station ;  Missouri,  K.  &  T.  R.  Co.  v.  Price,  48  Tex.  Civ. 
App.  213,  106  S.  W.  700,  holding  person  who  alighted  for  the  purpose  of  getting 
a  lunch,  after  telling  the  conductor,  continued  his  relation  as  passenger;  Layne 
v.  Chesapeake  &  O.  R.  Co.  €6  W.  Va.  626,  67  S.  E.  1103,  holding  that  passenger 
does  not  cease  to  be  such  by  alighting  at  intermediate  station  to  engage  in 
altercation  with  railroad  employee;  Austin  v.  St.  Louis  &  S.  F.  R.  Co.  149  Mo. 
App.  405,  130  S.  W.  385,  holding  that  passenger  does  not  cease  to  be  such  by 
alighting  from  caboose  of  wrecked  train  at  invitation  of  conductor. 

Cited  in  note  (15  L.  R.  A.  399)  on  rights  and  liabilities  of  parties  when  pas- 
senger temporarily  leaves  vehicle  before  completion  of  journey. 

Distinguished  in  Zeccardi  v.  Yonkers  R.  Co.  190  N.  Y.  391,  17  L.R.A.(N.S.) 
772,  83  N.  E.  31,  holding  person  who  had  alighted  from  street-car  to  stop  fight 
between  persons  on  the  street  was  no  longer  a  passenger,  to  whom  street-railway 
company  owed  any  duty. 

Limited  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Sattler,  64  Neb.  640,  57  L.R.A.  890r 
97  Am.  St.  Rep.  666,  90  N.  W.  649,  holding  that  the  carrier  owes  no  duty  to. 
passenger  who  leaves  train  at  intermediate  station,  at  a  place  not  designed  for 
the  discharge  of  passengers,  of  his  own  volition,  on  an  errand  not  connected 
with  his  journey. 
Effect  of  «<!  in  isxioii  of  improper  evidence. 

Cited  in  Myhill  v.  Bogardus,  166  N.  Y.  615,  59  N.  E.  900,  holding  that  im- 
proper evidence  already  before  jury  cannot  be  reviewed  by  exception. 

3  L.  R.  A.  687,  STATE  v.  HORACEK,  41  Kan.  87,  20  Pac.  204. 
Whether    dispensing   liquors    by   social    club    to    members    is    sale. 

Cited  in  Com.  v.  Tierney,  1  Pa.  Dist.  R.  20,  holding  furnishing  of  liquors  by- 
club  to  members,  at  usual  retail  prices,  is  sale  within  liquor  license  act;  Man- 
ning v.  Canon  City,  45  Colo.  577,  23  L.R.A.(N.S.)  195,  101  Pac.  978,  holding 
sale  by  club  through  its  board  of  control  to  its  members  was  a  sale  within  the 
ordinance  against  sales  of  intoxicating  liquors;  Ada  County  v.  Boise  Commercial 
Club,  20  Idaho,  437.  38  L.R.A. (N.S.)  110,  118  Pae.  1086,  holding  that  distribu- 


567  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  690 

tion  of  liquors  by  club  to  members  without  profit,  to  be  consumed  in  clubrooms, 
is  sale. 

Cited  in  footnotes  to  People  v.  Adelphi  Club,  31  L.  R.  A.  510,  which  holds  dis- 
tribution of  liquor  by  social  club  to  members  not  illegal  sale;  State  ex  rel.  Bell 
v.  St.  Louis  Club,  26  L.  R.  A.  573,  which  holds  distribution  of  liquor  among 
members  by  social  club  not  illegal;  State  ex  rel.  Stevenson  v.  Law  &  Order  Club, 
02  L.  R.  A.  885,  denying  right  of  incorporated  club,  without  license,  to  dispense 
liquors  to  members  for  checks  delivered  upon  payment  of  assessments. 

Cited  in  note  (24  Am.  St.  Rep.  36,  43)  on  distribution  of  liquor  by  social  clubs. 

Distinguished  in  People  v.  Adelphi  Club,  149  N.  Y.  13,  31  L.  R.  A.  513,  52 
Am.  St.  Rep.  700,  43  N.  E.  410,  holding  supplying  liquors  by  club  to  members, 
without  profit,  not  sale  within  statute  prohibiting  sale  without  license;  People 
v.  Adelphi  Club.  12  X.  Y.  Crim.  Rep.  6,  holding,  under  local  statute,  furnishing 
of  liquors  by  club  to  its  members  was  not  a  sale  and  no  license  was  required. 

Disapproved  in  State  ex  rel.  Bell  v.  St.  Louis  Club,  125  Mo.  329,  26  L.  R.  A. 
580,  28  S.  W.   604,   holding  that  distribution  of  liquors  owned  by  club,   to  its 
members,  is  not  sale  within  dramshop  act. 
Whether    social    club    within    statute     r«-ii  u  la  t  i  iin    sale. 

Cited  in  Mohrman  v.  State,  105  Ga.  716,  43  L.  R.  A.  401,  70  Am.  St.  Rep.  74, 
32  S.  E.  143,  holding  furnishing  of  liquors  by  social  club  to  members  only,  on 
Sunday,  within  statute  against  keeping  open  tippling  house  on  Sunday. 

Cited  in  footnotes  to  State  v.  Boston  Club,  20  L.  R.  A.  185,  which  holds  in- 
corporated institutions  selling  liquor  to  members  owe  license;  Barden  v.  Mon- 
tana Club,  11  L.  R.  A.  593,  which  holds  social  club  not  subject  to  license  tax. 

Cited  in  notes  (6  L.  R.  A.  128)  on  evasion  of  liquor  laws  by  social  clubs;  (12 
L.  R.  A.  413)  on  late  cases  respecting  application  of  intoxicating  liquor  laws  to 
social  clubs;  (12  L.R.A.(N.S.)  521)  on  applicability  of  liquor  laws  to  social  club. 

Disapproved  in  effect  in  Barden  v.  Montana  Club,  10  Mont.  335,  11  L.  R.  A. 
594,  24  Am.  St.  Rep.  27,  25  Pac.  1042,  holding  social  club  serving  liquors  to 
members  and  their  guests,  without  profit,  not  retail  liquor  seller  within  Montana 
license  law. 

3  L.  R.  A.  690,  BUNTING  v.  SPEAKS,  41  Kan.  424,  21  Pac.  288. 
Construction    of   estates    in    remainder,    whether   •vested    or    contingent. 

Cited  in  McLaughlin  v.  Penney,  65  Kan.  530,  70  Pac.  341,  holding  intent  to 
create  contingent  remainder  by  will  not  presumed,  but  must  be  clearly  expressed; 
Shafer  v.  Tereso,  133  Iowa,  34<3,  110  N.  W.  846,  holding  that  if  there  be  a  person 
in  being  capable  of  taking  the  estate  should  it  be  immediately  terminated  then 
it  is  a  vested  estate,  if  not,  then  contingent;  \Yilliams  v.  Bricker,  83  Kan.  57, 
30  L.R.A.  (N.S.)  346,  109  Pac.  998,  on  construction  of  devise  to  widow  for  life 
and  remainder  to  children  living  at  her  death. 

Cited  in  footnotes  to  Starnes  v.  Hill,  22  L.  R.  A.  598,  which  holds  indefeasible 
fee  not  vested  in  one  to  whom  life  estate  given,  with  estate  in  fee  to  his  "heirs;" 
Green  v.  Grant,  18  L.  R.  A.  381,  which  holds  that  woman's  issue  is  without 
vested  interest  in  land  devised  to  her  for  life,  with  direction  to  convey  to  such 
issue  as  she  shall  appoint;  Bowen  v.  Hackney,  67  L.R.A.  440,  which  holds  that 
no  estate  vests  in  children  until  widow's  death  under  will  giving  life  estate  to 
widow  and  providing  that  at  her  death  that  given  to  her  for  life  shall  be  equally 
divided  between  all  the  children,  the  representatives  of  those  having  died  to 
stand  in  place  of  ancestors. 

Cited  in  notes  (9  L.R.A.  214)  on  vested  and  contingent  remainders  distin- 
guished; (33  L.R.A.  (N.S. )  15,  25)  on  time  for  ascertaining  who  take  under 
gift  over  to  testator's  heirs,  next  of  kin,  etc.;  (37  Am.  St.  Rep.  146)  on  vested 


3  L.R.A.  690]  L.  R.  A.  CASES  AS  AUTHORITIES.  568 

and  contingent  remainders;    (37   Am.   St.   Rep.   147)    on  vested   and  contingent 
legacy. 

Distinguished    in   Dixon   v.   Dixon,   85   Kan.   381,   116  Pac.   886,   holding   that 
rule  favoring  vested  rather  than  contingent  remainders  does  not  change  language 
and  intention  clearly  expressed  in  trust  deed. 
"Heirs." 

Distinguished  in  Neal  v.  Davis,  53  Or.  429,  99  Pac.  69,  holding  the  word  heirs 
does  not  mean  children,  unless  accompanied  by  some  qualifying  words. 

3  L.  R.  A.  702,  WOODWARD  v.  BROOKS,  128  111.  222,  15  Am.  St.  Rep.  104,  20 

N.  E.  685. 
Validity  of  voluntary  general  assignment  made   in  another  state. 

Cited  in  Consolidated  Tank  Line  Co.  v.  Collier,  48  111.  App.  535,  148  111.  263, 
39  Am.  St.  Rep.  181,  35  N.  E.  756,  holding  assignment  with  preferences  valid 
in  Illinois,  if  valid  where  made,  and  not  detrimental  to  local  creditors ;  Whithed 
v.  J.  Walter  Thompson  Co.  86  111.  App.  85,  holding  common-law7  assignment  by 
corporation  presumed  valid,  where  made  as  against  attachment  by  foreign  cred- 
itor; Townsend  v.  Coxe,  151  111.  69,  37  N.  E.  689,  holding  assignment  conditioned 
for  release  of  assignor  invalid  as  contravening  local  law;  Covell  v.  Fowler,  144 
Fed.  538,  holding  method  of  enforcing  liability  of  nonresident  stockholder  of 
insolvent  bank  must  conform  to  procedure  of  forum  whose  aid  is  invoked. 

Cited  in  notes    (23  L.  R.  A.  38)    on  transfer  of  property  out  of  state  by  vol 
untary  assignment;    (17  L.  R.  A.  85)    on  validity  of  assignment  determined  by 
law  of  domicil. 
Protection   of  local  creditors  against   foreign   receivers   and  assignees. 

Followed  in  Bank  of  Nova  Scotia  v.  Booth,  19  Manitoba  L.  Rep.  477,  holding 
that  resident  creditor  of  foreign  corporation  in  hands  of  receiver  can  serve  such 
corporation,  where  its  debtor  to  amount  exceeding  $200  resides  in  same  province 
as  such  creditor. 

Cited  in  Smith  v.  Lamson  Bros.  184  111.  72,  56  N.  E.  387;  Smith  v.  Lamson 
Bros.  82  111.  App.  468;  Holbrook  v.  Ford,  153  111.  64«,  27  L.  R.  A.  327,  46  Am.  St. 
Rep.  917,  39  N.  E.  1091,  —  holding  attachment  by  local  creditor  will  be  upheld 
as  against  foreign  receiver  or  assignee;  Hunt  v.  Gilbert,  54  111.  App.  495,  holding 
receiver  of  foreign  corporation  cannot  acquire  title  to  property  in  Illinois  as 
against  attachment  by  local  creditor;  Hughes  v.  Runner,  91  Wis.  120,  64  N.  W. 
887,  holding  debenture  bond  of  foreign  insurance  company,  held  as  security  for 
local  policy  holders,  subject  to  claims  of  latter  as  against  assignee  of  insurance 
company;  Re  John  L.  Nelson  &  Bro.  Co.  149  Fed.  593,  holding  assignee  in 
Illinois  for  benefit  of  creditors  cannot  withdraw  funds  of  assignor  located  in 
Xew  York  before  payment  of  attaching  New  York  creditors;  Smith  v.  Berz,  125 
111.  App.  130,  holding  neither  voluntary  nor  statutory  assignee  from  foreign 
jurisdiction,  nor  receiver  appointed  by  foreign  court  can  successfully  hold  prop- 
erty of  which  he  has  not  obtained  possession  in  jurisdiction  appointing  him, 
against  attaching  creditors  of  insolvent  estate  citizens  of  state  of  situs. 

Cited  in  notes  (6  L.R.A.  110)  on  law  of  comity  in  enforcement  of  rights: 
(65  L.R.A.  355,  357)  on  transfer  of  property  out  of  state  by  bankruptcy  or 
insolvency  proceedings  or  assignment  for  creditors;  (59  Am.  St.  Rep.  881)  on 
injunction  against  suits  interfering  with  bankruptcy  proceedings  in  another 
jurisdiction. 

Distinguished  in  May  v.  Gesellschaft,  211  111.  316,  71  N.  E.  3001,  holding 
under  statute,  person  interpleading  in  attachment  under  claim  of  assignment 
from  nonresident  owner  cannot  urge  that  his  claim  should  be  preferred  as  that 


569  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  70S 

of  resident  creditor  because  defendant  was  nonresident  and  plaintiff  sought  to- 
recover  for  trustee  of  such  nonresident's  domicile. 

Itiulit*    of    foreign    creditors    inferior   to   title   of   foreign   assignee   or   re- 
ceiver. 

Cited  in  Walton  v.  Detroit  Copper  &  Brass  Rolling  Mills,  37  111.  App.  268,  sus- 
taining assignment  as  against  attaching  creditor  from  another  state,  having- 
notice  of  assignment;  Oilman  v.  Ketcham,  84  Wis.  68,  23  L.  R.  A.  57,  36  Am.  St. 
Rep.  899,  54  N.  W.  395,  upholding  title  of  foreign  receiver  of  dissolved  corpora- 
tion as  against  garnishment  by  foreign  creditor. 
Validity  of  contracts  made  in  another  state. 

Cited  in  Schlee  v.  Guckenheimer,  179  111.  597,  54  N.  E.  302,  holding  contract 
Viilid  at  common  law  presumed  to  be  valid  where  made;  Smith  v.  Jones,  63  Ark. 
240,  37  S.  W.  1052,  holding  contract  of  sale  made  in  another  state  transfers  title 
to  property  as  against  claims  of  local  creditors;  Judy  v.  Evans,  109  111.  App, 
156,  holding  unenforceable,  contract  of  sale  valid  where  made,  but  void  here; 
McCoy  v.  Griswold,  114  111.  App.  560,  holding  validity  and  construction  of  con- 
tract determined  by  law  of  place  where  made. 

Cited  in  note  (6  L.  R.  A.  108)  on  law  of  place  governing  construction  and 
validity  of  contracts. 

3  L.  R.  A.  705,  STATE  v.  RICHARDS,  32  Va.  348,  9  S.  E.  245. 
Peddler's   license ;    interstate   commerce. 

Cited  in  Emert  v.  Missouri,  156  U.  S.  309,  39  L.  ed.  433,  5  Inters.  Com.  Rep.. 
76,  15  Sup.  Ct.  Rep.  367,  Affirming  103  Mo.  249,  11  L.  R.  A.  221,  3  Inters.  Com. 
Rep.  529,  23  Am.  St.  Rep.  874,  15  S.  W.  81,  holding  statute  license  for  peddling,, 
without  discrimination  against  goods  of  other  states,  not  interference  with  in- 
terstate commerce;  Saulsbury  v.  State,  43  Tex.  Grim.  Rep.  94,  96  Am.  St.  Rep.. 
837.  63  S.  W.  568,  holding  liable  peddler  who  had  buggies  shipped  to  him  in 
state,  which  he  put  together  and  peddled. 

Cited  in  footnotes  to  Brownback  v.  North  Wales,  49  L.  R.  A.  446,  which  holds 
valid  as  to  residents,  ordinance  requiring  license  for  sale  of  goods  on  street  or  by 
soliciting  orders  from  house  to  house;  McLaughlin  v.  South  Bend,  10  L.  R.  A.  357, 
which  holds  requirement  of  peddling  license  unenforceable  against  person  nego- 
tiating for  sale  of  property  in  other  state;  Rosenbloom  v.  State,  57  L.  R.  A.  923, 
which  sustains  license  tax  on  peddlers,  though  venders  of  own  products  exempt; 
Emmons  v.  Lewiston,  8  L.  R.  A.  328,  which  holds  ordinance  requiring  license  of 
book  canvassers  invalid. 

Cited  in  notes  (8  L.  R.  A.  273)  on  peddlers'  licenses;  (7  L.  R.  A.  667)  on 
hawkers  and  peddlers  subject  to  state  license;  (14  L.  R.  A.  98)  on  peddlers  and 
drummers  as  related  to  interstate  commerce;  (11  L.  R.  A.  219)  on  state  au- 
thority to  impose  licenses;  (12  L.  R.  A.  624)  on  supreme  power  of  Congress  to 
regulate  interstate  commerce;  (60  L.  R.  A.  690)  on  taxation  of  trade  and  the 
commerce  clause;  (19  L.R.A.(N.S.)  315)  on  license  or  occupation  tax  on  hawk- 
ers, peddlers,  and  persons  engaged  in  soliciting  orders  by  sample  or  otherwise,, 
as  violating  the  commerce  clause. 

Disapproved  in  French  v.  State,  42  Tex.  Grim.  Rep.  224,  52  L.  R.  A.  161,  58 
S.  W.  1015,  holding  occupation  tax  on  peddlers,  as  applied  to  agent  of  nonresi- 
dent organ  company  peddling  from  wagon,  is  interference  with  interstate  com- 
merce. 
Taxation. 

Cited  in  note  (4  L.  R.  A.  810)  on  uniformity  of  taxation. 
Indictment    need    not    negative    exception. 

Cited  in  State  v.  Dry  Fork  R.  Co.  50  W.  Va.  237,  40  S.  E.  447,  holding  that 


3  L.H.A.  705]  L.  R.  A.  CASES  AS  AUTHORITIES.  570 

•when  exception  or  proviso  not  in  description  of  offense,  it  need  not  be  negatived 
in  indictment. 

3   L.   R.  A.   709,  TEMPLE  v.  BAKER,   125   Pa.   634,   11   Am.   St.  Rep.   926,   17 

Atl.  516. 
Indorser's   liability. 

Cited  in  Moran  v.  Bates,  16  Lane.  L.  Rev.  148,  denying  liability  of  irregular 
indorser  on  note  transferred  after  maturity;  Breyfogle  v.  De  Rone,  6  Northampton 
Co.  Rep.  85,  holding  indorser  under  "credit  drawer"  on  face  of  note  not  liable  to 
payee;  Alldred's  Estate,  229  Pa.  631,  79  Atl.  141,  holding  that  directors,  in- 
dorsing corporate  note,  by  accepting  benefit  of  indemnity  become  principals  and 
cannot  set  up  nonpresentment  and  want  of  notice  of  dishonor;  American  Trust 
Co.  v.  Canevin,  59  Pittsb.  L.  J.  239,  107  C.  C.  A.  543,  184  Fed.  658,  holding 
that  bishop  indorsing  church  note  as  trustee  is  not  personally  liable;  Columbia 
Bldg.  Asso.  v.  Boyd,  26  Lane.  L.  Rev.  229,  holding  that  indorser  of  note  before 
payee  is  second  indorser  and  not  liable  to  payee. 

Cited  in  footnote  to  Witty  v.  Michigan  Mut.  L.  Ins.  Co.  8  L.  R.  A.  365,  which 
holds  note  negotiable,  although  blank  in  body  as  to  amount  and  place  of  payment. 

Cited  in  note  (72  Am.  St.  Rep.  683)  on  effect  of  indorsement  by  stranger 
before  delivery. 

Distinguished  in  First  Nat.  Bank  v.  Bachman,  3  Pa.  Dist.  R.  460,  10  Lane.  L. 
Rev.  414,  holding  that  corporate  note,  payable  to  one  as  treasurer,  operates  as 
though  payable  to  self. 
Delivery. 

Cited  in  note   (6  L.  R.  A.  471)   on  delivery  essential  to  validity  of  note. 
Collateral  agreements. 

Cited  in  Weaver  v.  Adams,  132  Pa.  395,  19  Atl.  271,  holding  judgment  by  con- 
fession cannot  be  shown  to  have  been  in  consideration  of  agreement  by  judgment 
creditor  to  pay  self  and  other  creditors. 

3  L.  R.  A.  711,  THE  CURTIS,  37  Fed.  705. 
Admiralty  jurisdiction   over   torts. 

Cited  in  Bain  v.  Sandusky  Transp.  Co.  60  Fed.  914,  holding  jurisdiction  limited 
to  maritime  torts,  of  which  test  is  locality,  and  which  must  be  committed  on 
water;  Hermann  v.  Port  Blakely  Mills  Co.  69  Fed.  650,  holding  locus  of  damage, 
and  not  loans  of  origin  of  tort,  real  test  of  jurisdiction;  The  John  C.  Sweeney, 
55  Fed.  543,  holding  admiralty  without  jurisdiction  of  libel  against  schooner  for 
injury  to  swing  bridge  resting  on  pier  in  river;  The  Blackheath,  122  Fed.  113, 
denying  admiralty  jurisdiction  of  action  for  damages  for  injury  to  immovable 
beacon-light  structure;  The  Mackinaw,  165  Fed.  352,  holding  admiralty  has  juris- 
diction of  action  for  injury  to  person  on  pontoon,  by  moving  vessel,  although 
pontoon  is  fastened  to  shore  by  cable. 

Cited  in  note  (21  L.R.A.  (N.S. )  324)  on  jurisdiction  of  action  growing  out 
of  collision  of  vessel  with  bridge. 

Distinguished  in  The  Strabo.  90  Fed.  112,  holding,  where  workman  falls  to 
dock  from  ladder  defectively  secured  to  ship's  rail,  case  within  jurisdiction. 

Disapproved  in  West  v.  Martin,  47  Wash.  423,  92  Pac.  334,  holding  admiralty 
has  jurisdiction  of  injury  where  pier  of  lawfully  constructed  bridge  resting  on 
bottom  of  navigable  stream  is  run  into  by  vessel. 
Test  of  locality  of  tort. 

Cited  in  Rundell  v.  Louisiana  Campagnie  Generale  Transatlantique,  49  L.  R. 
A.  94,  40  C.  C.  A.  628,  100  Fed.  657,  holding  locus  oi  tort  determined  by  place 
•where  damage  and  injury  arose. 


571  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  724 

Conflict  of  lav.  s  in  admiralty  jnrindiction. 

Cited  in  Rundell  v.  Louisiana  Campagnie  Generale  Transatlantique,  49  L.  R. 
A.  95,  40  C.  C.  A.  629,  100  Fed.  658,  holding  case  of  death  from  drowning,  as  re- 
sult of  collision  on  high  seas,  must  be  adjudged  according  to  admiralty  law  of 
United  States,  and  not  local  law  of  nation  to  which  vessel  belongs. 

3  L.  R.  A.  713,  FERRIS  v.  VANIER,  6  Dak.  186,  42  N.  W.  31. 
Discrimination   in    taxation. 

Cited  in  Gay  v.  Thomas,  5  Okla.  14,  46  Pac.  578,  holding  that  property  of  citi- 
zens within  Indian  reservations  can  be  taxed  by  territorial  legislation;  Meade 
County  v.  Hoehn,  12  S.  D.  504,  81  N.  W.  887,  holding  that  illegal  assessment  in 
unorganized  county  does  not  relieve  personal  property  therein  from  taxation  in 
organized  county;  Meade  County  v.  Hoehn,  12  S.  D.  472,  81  N.  W.  886,  holding 
personal  property  situated  in  unorganized  county  taxable  in  organized  county 
•where  owner  resides;  Northern  P.  R.  Co.  v.  Barnes,  2  N.  D.  330,  51  N.  W.  386, 
holding  act  taxing  gross  earnings  of  railroads  valid;  Frontier  Land  &  Cattle 
•Co.  v.  Baldwin,  3  Wyo.  770,  31  Pac.  403,  holding  exemption  from  taxation  of 
goods  of  merchant  to  keep  up  stock  not  unlawful  discrimination;  Dupree  v. 
Stanley  County,  8  S.  D.  32,  65  N.  W.  426.  holding  taxation  for  state  purposes 
Talid;  McClelland  v.  State,  138  Ind.  338,  37  N.  E.  1089,  holding  act  to  reimburse 
public  officer  for  money  lost  in  official  capacity  invalid;  State  ex  rel.  Reno  v. 
Boyd,  27  Nev.  257,  74  Pac.  654,  holding  statute  void  which  provides  moneys 
received  trom  licenses  in  cities  shall  be  apportioned  in  varying  amounts  to  state, 
to  county  in  which  city  is  located  and  to  city  itself. 

Cited  in  footnotes  to  State,  Alexander,  Prosecutor,  v.  Elizabeth,  23  L.  R.  A. 
525,  which  holds  invalid  special  statute  discriminating  between  municipalities 
already  having,  and  those  not  having,  racecourse;  Rode  v.  Siebe,  39  L.  R.  A.  342, 
which  holds  discrimination  between  taxes  on  personalty  and  on  realty  justified  by 
•difference  between  them;  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584, 
which  holds  statute  as  to  taxes,  not  applying  to  all  parts  of  state,  unconstitu- 
tional ;  Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulat- 
ing sheriff's  fees  for  particular  county,  local. 

Cited  in  notes  (19  L.  R.  A.  79)  on  power  of  state  legislature  to  exempt  from 
taxation;  (7  L.  R.  A.  194)  on  prohibition  against  local  and  special  legislation. 

3  L.  R.  A.  724,  RUBY  v.  TALBOTT,  5  N.  M.  251,  21  Pac.  72. 
Alteration   of  note. 

Cited  in  Richardson  v.  Fellner,  9  Okla.  520,  60  Pac.  270,  holding  evidence  of 
material  alteration  of  note  admissible;  Cox  v.  Alexander,  30  Or.  446,  46  Pac. 
794,  holding  insertion  of  name  of  payee  and  place  of  payment  in  blanks  in  note 
does  not  void  it. 

Cited  in  footnote  to  Rochford  v.  McGee,  61  L.  R.  A.  335,  which  holds  removal 
of  note  written  below  perforated  line  on  application  for  insurance  a  material 
alteration  rendering  it  void. 

Cited  in  notes  (22  L.  R.  A.  687)  on  liability  of  maker  or  drawer  on  raised 
negotiable  paper;  (6  L.  R.  A.  469;  7  L.  R.  A.  743)  on  effect  of  alteration  of 
written  instruments;  (6  L.R.A.  626)  on  use  of  fictitious  names  in  negotiable 
paper;  ( :V2  L.R.A.  (X.S.)  517)  on  alteration  of  date  of  note:  (86  Am.  St.  Rep. 
96,  97,  99,  103,  105)  on  unauthorized  alteration  of  written  instruments. 


3  L.R.A.  733]  L.  R.  A.  CASES  AS  AUTHORITIES.  572: 

3  L.  R.  A.  733,  SOUTH  FLORIDA  R.  CO.  v.  RHOADS,  25  Fla.  40,  23  Am.  St. 

Rep.  506,  5  So.  633. 
What  are  reasonable   railroad   regulations. 

Cited  in  Southern  R.  Co.  v.  Watson,  110  Ga.  690,  36  S.  E.  209,  holding  rule  of 
railroad  putting  time  limit  on  use  of  ticket  reasonable;  Muckle  v.  Rochester 
R.  Co.  79  Hun,  35,  29  N.  Y.  Supp.  732,  holding  rule  of  street  railway  limiting 
time  of  use  of  transfer  ticket  reasonable;  Chilton  v.  St.  Louis  &  I.  M.  R.  Co. 
19  L.  R.  A.  270,  21  S.  W.  458  (omitted  from  official  report  in  114  Mo.  91), 
holding  resonableness  of  regulation  excluding  negroes  from  ladies'  car  is  ques- 
tion of  law. 

Cited  in  footnotes  to  Dwindle  v.  New  York  C.  &  H.  R.  R.  Co.  8  L.  R.  A.  224,. 
which  holds  railroad  company  liable  for  acts  of  porter  of  sleeping  or  drawing- 
room  car;  North  Chicago  City  R.  Co.  v.  Gastka,  4  L.  R.  A.  481,  which  holds 
carrier  liable  for  conductor's  lack  of  care  in  ejecting  passenger  for  nonpay- 
ment of  fare;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Henry,  16  L.  R.  A.  318,  which  holds 
ticket  good  for  continuous  passage  does  not  entitle  holder  to  stop  at  interme- 
diate points. 

Cited  in  notes  (43  L.  R.  A.  363)  on  duties  of  master  and  servant  as  to  rules 
promulgated  for  safe  conduct  of  business;  (26  L.  R.  A.  133)  on  place  at  which 
one  refusing  to  pay  fare  may  be  ejected;  (12  L.  R.  A.  824)  on  ejection  of 
passenger  for  refusal  to  pay  fare;  (9  L.  R.  A.  688)  on  expulsion  of  passenger; 
(3  L.  R.  A.  635)  on  liability  of  company  for  injuries  resulting  from  misconduct 
of  its  servants. 

Distinguished   in  Atlantic   Coast  Line   R.   Co.  v.  Crosby,   53   Fla.  448,  43  So- 
318,  excluding  as  evidence  rule  as  to  standing  on  platform  of  car. 
Determination    of   reasonableness. 

Cited  in  Western  U.  Teleg.  Co.  v.  Love  Banks  Co.  73  Ark.  208,  83  S.  W.  949, 
3  A.  &  E.  Ann.  Gas.  712,  holding  it  for  court  whether  regulation  of  telegraph 
company  in  fixing  office  hours  at  certain  place  were  reasonable;  Cincinnati.  N. 
O.  &  T.  P.  R.  Co.  v.  Lovell,  141  Ky.  260,  —  L.R.A.(N.S.)  — ,  132  S.  W.  569, 
holding  that  construction  of  rules  is  for  court. 

Cited  in  note  (43  Am.  St.  Rep.  153)  on  determination  by  court  of  reason- 
ableness of  by-laws. 

3  L.  R.  A.  739,  TOWNSHEND  v.  GOODFELLOW,  40  Minn.  312,  12  Am.  St.  Rep. 

736,  41   N.   W.    1056. 
Specific   performance   of   contract. 

Cited  in  Fairchild  v.  Marshall.  42  Minn.  18,  43  N.  W.  563,  decreeing  specific 
performance  where  election  of  insane  woman  under  provisions  of  will,  made  by 
court;  Brown  v.  Munger,  42  Minn.  487,  44  N.  W.  519,  decreeing  specific  per- 
formance of  contract  originally  unenforceable,  but  subsequently  made  good:. 
Easton  v.  Montgomery,  90  Cal.  315,  25  Am.  St.  Rep.  123,  27  Pac.  280,  holding 
vendor  need  not  be  clothed  with  absolute  title  at  time  of  entering  into  contract 
for  sale;  Blanton  v.  Kentucky  Distilleries  &  Warehouse  Co.  120  Fed.  ;!oS,  de- 
creeing specific  performance  where  vendor  had  some  title  which  could  be  per- 
fected; Gray  v.  Smith,  28  C.  C.  A.  173,  48  U.  S.  App.  581,  83  Fed.  829,  Affirm- 
ing 76  Fed.  531,  holding  vendor,  without  title  or  contractual  relation  to  obtain 
one,  cannot  recover  damages  if  purchaser  withdraws;  Easton  v.  Lockhart,  10' 
N.  D.  186,  86  N.  W.  697,  holding  vendee  must  be  prepared  to  fulfil  on  his 
part,  to  obtain  specific  performance  of  contract;  Gregory  v.  Christian,  42  Minn. 
306,  18  Am.  St.  Rep.  507,  44  N.  W.  202,  holding  vendor  has  reasonable  time 
after  demand  to  prepare  conveyance,  but  not  to  perfect  title;  Tewksbury  v. 
Howard,  138  Ind.  Ill,  37  N.  E.  355,  stating  good  title  at  time  of  decree  for 


573  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  739 

specific  performance  sufficient;  Duluth  Loan  &  Land  Co.  v.  Klovdahl,  55  Minn. 
343,  56  N.  W.  1119,  holding  allegations  of  encumbrances,  possible  to  be  re- 
moved before  completion  of  time  of  contract,  no  defense  to  instalment  due; 
Brown  v.  Lee,  1  :3  C.  C.  A.  141,  192  Fed.  821,  holding  that  vendor  is  not  able 
to  perform,  where  he  requires  vendee's  money  to  obtain  title;  Martinson  v. 
Regan,  18  N.  D.  472,  123  X.  W.  285;  Armstrong  v.  Maryland  Coal  Co.  67  VV. 
Va.  611,  69  S.  E.  195;  Provident  Loan  Trust  Co.  v.  Mclntosh  Co.  68  Kan.  462. 
75  Pac.  498,  1  A.  &  E.  Ann.  Cas.  906, — holding  that  contract  of  sale  will  be 
sustained  though  vendor  did  not  have  title  at  the  time  but  had  sucli  control 
thereof  that  he  can  fulfill  his  agreement;  Day  v.  Mountin,  70  C.  C.  A.  190,  137 
Fed.  702,  holding  contract  for  sale  of  land  not  owned  by  vendor  at  time  of 
contract,  such  fact  being  known  to  vendee,  enforceable  where  he  obtains  title 
•and  is  able  to  perform;  McNeny  v.  Campbell,  81  Neb.  758,  116  N.  W.  671, 
holding  that  person  can  make  valid  agreement  for  sale  of  land,  when  he  can 
acquire  title  by  voluntary  act  of  owner  or  by  proceedings  at  law  or  in  equity; 
Greer  v.  International  Stock  Yards,  43  Tex.  Civ.  App.  377,  96  S.  W.  79,  holding 
that  land  contract  will  be  enforced,  wheie  question  of  vendor's  title  by  limita- 
tion is  one  of  law. 

Cited  in  footnote  to  Hodges  v.  Kowing,  7  L.  R.  A.  87,  which  holds  that  rem- 
edy at  law  will  not  defeat  specific  performance  of  contract  for  sale  of  land. 

Cited  in  notes  (12  L.  R.  A.  245)  on  rights  and  remedies  of  vendor;   (5  L.  R.  A. 
654)   on  equity  compelling  vendee  to  take  defective  title;    (10  L.  R.  A.  127)   on 
application  of  doctrine  of  laches. 
What    is   marketable   title. 

Cited  in  Hedderly  v.  Johnson,  42  Minn.  446,  18  Am.  St.  Rep.  521,  44  N.  W. 
527,  holding  reservation  of  right  of  way  for  railroad  did  not  affect  marketability 
of  title;  Austin  v.  Barnum,  52  Minn.  139,  53  N.  W.  1132,  holding  undischarged 
mortgage  rendered  title  unmarketable;  Harrass  v.  Edwards,  94  Wis.  464,  69  N. 
W.  69,  holding  deed  not  entitled  to  be  recorded  except  as  to  one  of  twenty  grant- 
ors not  marketable  title;  Richmond  v.  Koenig,  43  Minn.  481,  45  N.  W.  1093, 
holding  title  not  marketable  when  existence  of  uncertain  homestead  is  neces- 
sary to  defeat  apparent  lien  of  judgments;  Menage  v.  Burke,  43  Minn.  212,  19 
Am.  St.  Rep.  235,  45  N.  W.  155,  holding  that  foreclosure  of  mortgage  to  indi- 
viduals of  a  firm  passed  title;  Brown  v.  Jones,  52  Minn.  490,  55  N.  W.  54, 
holding  vendee  equitable  owner  subject  to  contract,  in  foreclosure  of  liens; 
McXutt  v.  Nelland,  82  Kan.  426,  108  Pac.  834,  holding  unmarketable,  title  rest- 
ing on  deed  of  foreign  assignee  solely  by  virtue  of  order  of  foreign  court;  Wil- 
liams v.  Bricker,  83  Kan.  56,  30  L.R.A.  (N.S.)  345,  109  Pac.  998,  holding  title 
unmarketable,  if  there  be  doubt  or  uncertainty  suflicient  to  form  basis  of  litiga- 
tion; Howe  v.  Coates,  97  Minn.  397,  4  L.R.A. (N.S.)  1178,  114  Am.  St.  Rep. 
723,  107  N.  W.  397,  holding  title  not  marketable  if  there  be  a  defect  in  the 
record  title  which  can  be  cured  only  by  resort  to  parol  evidence;  Wollenberg 
v.  Rose,  45  Or.  621,  78  Pac.  751,  holding  that  title  which  on  its  face  is  subject 
to  litigation  is  not  marketable  title;  Harrette  v.  Whitney,  36  Utah,  599,  37 
L.R.A. (X.S.)  381,  106  Pac.  522  (dissenting  opinion),  on  marketability  of  title 
based  on  final  decree  of  distribution  by  probate  court. 

Cited  in  footnote  to  Ladd  v.  Weiskopf,  69  L.R.A.  785,  which  holds  title  not 
rendered  unmarketable  so  as  to  entitle  vendee  to  rescind  and  recover  back  pur- 
chase money  by  deed  as  to  construction  of  a  decree  of  distribution  which  is 
conclusive  on  all  parties  interested. 

Cited  in  notes  (38  L.R.A. (N.S.)  10,  19,  27,  28;  132  Am.  St.  Rep.  994)  on 
what  is  a  marketable  title. 


3  L.R.A.  743]  L.  R.  A.  CASES  AS  AUTHORITIES.  574 

3  L.  R.  A.  743,  FLETCHER  v.  FITCHBURG  R.  CO.  149  Mass.  127,  21  X.  E.  302. 
Care  required  at  railroad  crossing* 

Cited  in  Clark  v.  Boston  &  M.  R.  Co.  164  Mass.  439,  41  N.  E.  666.  holding  no 
absolute  legal  rule  requiring  person  approaching  crossing,  under  all  circumstances 
to  stop,  to  look,  and  to  listen;  Johanson  v.  Boston  &  M.  R.  Co.  153  Mass.  60r 
26  N.  E.  426,  holding  question  of  care  for  jury,  where  children  of  ten  and 
eleven,  killed  at  crossing,  looked,  but  view  of  track  was  obscured;  Chase  v_ 
Maine  C.  R.  Co.  167  Mass.  387,  45  N.  E.  911,  holding  burden  upon  plaintiff 
to  show  reasonable  care  in  crossing  track,  although  defendant  be  in  fault;  Stew- 
art v.  New  York,  X.  H.  &  H.  R.  Co.  170  Mass.  432,  49  N.  E.  650,  holding 
stepping  upon  track  at  crossing,  without  looking  or  listening,  absorbed  in  deep- 
thought,  not  use  of  due  care;  Debbins  v.  Old  Colony  R.  Co.  154  Mass.  404,  28- 
N.  E.  274,  holding  no  case  for  jury,  where  injured  passenger,  warned  of 
danger,  crossed  tracks  without  sufficiently  looking;  Tyler  v.  Old  Colony  R.  Co, 
157  Mass.  340,  32  N.  E.  227,  holding  walking  upon  crossing  without  looking  not 
use  of  due  care;  Walsh  v.  Boston  &  M.  R.  Co.  171  Mass.  57,  50  N.  E.  453,  hold- 
ing action  not  maintainable  where  it  is  merely  conjectural  whether  person 
killed  at  crossing  looked  or  listened;  St.  Louis,  1.  M.  &  S.  R.  Co.  v.  Martin, 
61  Ark.  558,  33  S.  W.  1070,  holding  recovery  for  death  of  one  standing,  talk- 
ing, without  listening,  on  main  track  at  crossing  on  dark  night,  precluded: 
Little  Rock  &  Ft.  S.  R.  Co.  v.  Cullen,  54  Ark.  436,  16  S.  \V.  169,  holding  injured 
person,  crossing  tracks  without  looking  or  listening,  cannot  recover  although 
train  approached  at  unusual  speed;  Chicago  &  X.  W.  R.  Co.  v.  Andrews,  130  Fed. 
72,  denying  recovery  of  one  who  neglected  to  stop,  look,  and  listen  before  cross- 
ing tracks;  Bates  v.  Fremont,  E.  &  M.  V.  R.  Co.  4  S.  D.  407,  57  X.  W.  72 
(dissenting  opinion),  majority  holding  it  question  for  jury  whether  plaintiff 
took  sufficient  precautions  to  prevent  killing  of  stock  at  crossing;  Cincinnati. 
I.  St.  L.  &  C.  R.  Co.  v.  Grames,  8  Ind.  App.  147.  34  X.  E.  613,  holding  exercis-; 
of  due  care  wheje-  two  -persons  in  wagon  approached  crossing  with  view  ob- 
structed, looked,  listened,  and  started  across  on  walk;  Denver  &  R.  G.  R.  Co.  v 
Ryan,  17  Colo.  101,  28  Pac.  79,  holding  going  upon  railroad  track  without  look- 
ing and  listening  and  observing  surroundings  to  be  negligence;  Carter  v.  Cen 
tral  Vermont  R.  Co.  72  Vt.  194,  47  Atl.  797,  holding  driving  upon  dansrerou-: 
crossing  without  slackening  speed  and  without  vigilance  prevents  recovery. 
Oleson  v.  Lake  Shore  &  M.  S.  R.  Co.  143  Ind.  412,  32  L.  R.  A.  151.  42  X.  K. 
736,  holding  failure  to  wait  at  crossing  until  wind  had  cleared  smoke  obscur- 
ing view,  contributory  negligence;  Chicago,  K.  &  W.  R.  Co.  v.  Fisher,  49  Kan. 
485,  30  Pac.  462,  holding  that  traveler,  knowing  train  is  about  due,  must  wait  for 
obscuring  cloud  of  dust  to  clear,  before  attempting  to  cross  tracks;  Indianapolis 
Union  R.  Co.  v.  Xeubacher,  16  Ind.  App.  b4.  44  X.  E.  069,  holding  mere  failure 
to  wait  until  view  is  unobstructed  by  passing  train,  where  many  trains  pa-s 
crossing  daily,  not  contributory  negligence,  as  matter  of  law;  Donnelly  v.  Boston 
&  M.  R.  Co.  151  Mass.  212,  24  N.  E.  38,  holding  obstruction  of  view  by  cars 
at  crossing  does  not  exonerate  person  from  all  duty  to  investigate;  Rogers  v. 
Boston  &  M.  R,  Co.  187  Mass.  219,  72  X.  E.  945,  holding  it  contributory  negli- 
gence to  fail  to  stop  and  listen  before  driving  on  track  where  view  is  obstructed 
and  noise  of  own  vehicle  was  known  by  driver  to  prevent  hearing  approaching 
train;  Union  P.  R.  Co.  v.  Rosewater,  15  L.R.A.fX.S.)  809.  84  C.  C.  A.  616,  157 
Fed.  174,  13  A.  &  E.  Ann.  Cas.  851,  holding  it  contributory  negligence  to  look 
when  it  is  of  no  avail  and  to  fail  to  look  again  when  danger  could  be  seen 
and  avoided;  Lundergan  v.  Xew  York  C.  &  H.  R.  R.  Co.  203  Mass.  465.  89 
N.  E.  625,  holding  traveler  at  railroad  crossing  bound  to  make  use  of  senses 
to  discover  approach  of  train,  although  gates  are  open  and  unattended. 


575  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  751 

Cited  in  footnotes  to  Feeney  v.  Long  Island  R.  Co.  5  L.  R.  A.  544,  which  holds 
traveler  not  negligent  per  se  in  failing  to  notice  that  farther  gate  coming 
down,  before  reaching  it;  Louisville  &  X.  R.  Co.  v.  Webb,  11  L.  R.  A.  674,  which 
holds  failure  to  use  senses  before  crossing  track  not  excused  by  unlawful 
speed  of  train  and  watchman's  failure  to  do  duty;  Oleson  v.  Lake  Shore  &  M. 
S.  R.  Co.  32  L.  R.  A.  149,  which  holds  it  negligent  to  attempt  to  cross  track 
immediately  after  passage  of  train  whose  smoke  obstructs  view;  Woehrle  v.  Min- 
nesota Transfer  R.  Co.  52  L.  R.  A.  343,  which  holds  traveler's  failure  to  look 
and  listen  when  watchman  absent  not  negligence  per  se;  Western  &  A.  R.  Co.  v. 
Ferguson,  54  L.  R.  A.  802,  which  holds  failure  to  look  when  within  30  feet 
of  track  not  prevent  recovery;  Lorenz  v.  Burlington,  C.  R.  &  N.  R.  Co.  56  L.  R. 
A.  753,  which  holds  negligence  of  one  pursuing  cow,  in  not  looking  and  listen- 
ing before  crossing  railroad  track,  for  jury;  Keenan  v.  Union  Traction  Co.  58 
L.  R.  A.  217,  which  holds  failure  to  look  for  train  when  within  35  feet  of 
track,  negligence;  Colorado  &  Southern  R.  Co.  v.  Thomas,  70  L.R.A.  681,  which 
holds  failure  to  look  and  listen  before  crossing  track  not  excused  by  existence 
of  building  adjoining  highway  which  would  obstruct  view  of  tracks  and  by 
noise  created  therein  which  would  prevent  hearing  approaching  train. 

Cited  in  notes  (9  L.  R.  A.  161,  162,  163)  on  duty  of  traveler  approaching  rail- 
road crossing;  (37  L.R.A. (X.S.)  143)  on  duty  of  traveler  approaching  railway 
crossing  as  to  place  and  direction  of  observation. 

Distinguished  in  Hubbard  v.  Boston  &  A.  R.  Co.  162  Mass.  135,  38  X.  E.  366, 
holding   it   question   for   jury   whether   deceased  waited   long   enough   after   pas- 
sage of  freight  train  at  crossing. 
Duty  of  railroad  company. 

Cited  in  Santore  v.  Xew  York  C.  &  H.  R.  R.  Co.  203  Mass.  441,  89  X.  E.  619, 
holding  servant  shoveling  ashes  in  ash  pit  in  roundhouse  may  rely  on  customary 
warnings  of  approach  of  engine  or  car  but  is  not  relieved  from  reasonable  use 
of  senses  to  ascertain  their  approach. 

Cited  in  footnote  to  Birmingham  Mineral  R.  Co.  v.  Jacobs,  12  L.  R.  A.  830,. 
which  holds  failure  to  stop  train  within  100  feet  of  crossing  of  other  railroad 
not  excused  by  fact  that  rear  of  train  would  be  left  standing  across  another 
track. 

Cited  in  notes  (9  L.  R.  A.  158)  on  duty  of  railroad  company  as  to  travelers 
on  highway;  (9  L.  R.  A.  157)  on  imputing  driver's  negligence  to  passenger. 

3  L.  R.  A.  746,  BLAKE  v.  TRADERS  XAT.  BAXK,  149  Mass.  250,  21-  N.  E. 
381. 

3  L.  R.  A.  747,  COM.  v.  TOLMAX,  149  Mass.  229,  14  Am.  St.  Rep.  414,  21  X.  E. 

377. 
What    constitutes    an    "attempt." 

Cited  in  footnotes  to  People  v.  Youngs,  47  L.  R.  A.  108,  which  holds  prepara- 
tion  for   committing   burglary   prevented   by   arrest   of   party   while    proceeding 
towards  house  not  an  attempt;   Groves  v.  State,  59  L.  R.  A.  598,  which  holds 
mere  preparatory  acts  for  commission  of  crime  not  an  attempt. 
Sufficiency  of  exception   to   instructions. 

Cited  in  Buck  v.  Territory,  1  Okla.  Crim.  Rep.  525,  93  Pac.  1017,  holding 
exception  which  challenges  each  and  every  paragraph  in  instruction  should  be 
treated  as  general  exception. 

3  L.  R.  A.  751,  UXITED  STATES  v.  M.\\V,  KI.L  LAXD  GRAXT  CO.  5  X.  M. 
297,  21   Pac.   153. 


3  L.R.A.  754]  L.  R.  A.  CASES  AS  AUTHORITIES.  57G 

3  L.  R.  A.  754,  RANDALL  v.  DUFF,  79  Cul.  123,  19  Pac.  532,  21  Pac.  610. 

Cited  in  later  appeals  in  101  Cal.  S3,  35  Pac.  440;   116  Cal.  227,  58  Am.  St. 
Rep.  358,  48  Pac.  66. 
Constructive    notice. 

Cited  in  Brock  v.  Pearson,  87  Cal.  588,  25  Pac.  963,  holding  Us  pcndens  no- 
tice not  destroyed  by  amendment  of  complaint. 

Cited  in  notes   (21  L.R.A.  36)   on  how  far  purchaser  at  execution  or  judicial 
sale  protected  as  a  bona  fide  purchaser;    (21  L.R.A.  36)    on  purchaser  at  execu- 
tion  or  judicial   sale   as   bona  fide  purchaser;    (56   Am.   St.  Rep.   858,   809)    on 
law  of  lis  pendens. 
Scope  of  power   of  attorney. 

Cited  in  Anderson  v.  Bigelow,  16  Wash.  200,  47  Pac.  426,  holding  general  power 
to  sell  and  convey  does  not  authorize  dedication  of  part  of  property  for  street 
purposes;  Winter  v.  McMillan,  87  Cal.  262,  22  Am.  St.  Rep.  243,  25  Pac.  407, 
•holding  it  does  not  authorize  attorney  to  give  away  property  or  to  convey  it 
to  himself  for  nominal  consideration;  Hunter  v.  Eastham,  95  Tex.  653,  69  S. 
W.  66,  holding  it  does  not  authorize  conveyance  for  consideration  running  to 
attorney;  Alcorn  v.  Buschke,  133  Cal.  657,  66  Pac.  15,  holding  attorney  has 
no  power  to  convey  without  consideration;  Palmer  v.  Texas  Tram  &  Lumber 
Co.  3  Tex.  Civ.  App.  474,  23  S.  W.  38,  on  validity  of  conveyance  by  attorne- 
in  excess  of  power. 
Effect  upon  mortgage  of  judgment  setting  aside  deed. 

Cited  in  Hewlett  v.  Pilcher,  85  Cal.  54.4,  24  Pac.  781,  holding  it  does  not  affect 
lien  of  mortgage  where  mortgagee  had  no  notice  of  cause  for  which  deeds  are 
annulled. 
Proper  parties   in   equitable   proceeding  to  adjust   rights. 

Cited  in  Montecito  Valley  Water  Co.  v.  Santa  Barbara,  144  Cal.  601,  77  Pac. 
1113,  holding  purchasers  from  one  who  it  is  alleged  unlawfully  abstracted  water 
from  tunnel,  proper  parties  in  action  to  restrain  diversion  of  water. 
Scope  of  mortgage   foreclosure  proceedings. 

'Cited  in  Murray  v.  Etchepare,  129  Cal.  320,  61  Pac.  930,  holding  party  who 
claims  by  title  paramount  to  mortgagor  and  mortgagee  cannot  litigate  it  in 
foreclosure  proceedings. 

Cited  in  notes    (68   Am.   St.   Rep.  359)    on  litigation   of  paramount  titles  in 
suit  to  foreclose  mortgage;    (40  L.R.A.  (N.S.)   842)   on  right  of  one  in  possession 
claiming  under  void  foreclosure. 
When  statute  of  limitations  begins  to  run. 

Cited  in  note  (22  Am.  St.  Rep.  228)  as  to  when  statute  of  limitations  begins 
to  run. 

3  L.  R.  A.  759,  ADRIAN  v.  McCASKILL,  103  N.  C.  182,  14  Am.  St.  Rep.  788, 

9  S.  E.  284. 
Indorsement    without    recourse. 

Cited  in  Moore  v.  First  Nat.  Bank,  38  Colo.  341,  10  L.R.A. (N.S.)  260,  120 
Am.  St.  Rep.  120,  88  Pac.  385,  12  A.  &  E.  Ann.  Cas.  268,  holding  where  indorser 
to  whom  is  returned  note  as  uncollectable  by  its  indorsee,  without  recourse, 
re-issues  note  without  striking  out  its  former  indorsement,  it  is  liable  to  its 
transferee. 

Cited  in  note  (12  L.R.A.  371)  on  indorsement  and  transfer  of  commercial 
paper  without  recourse. 


577  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  766 

l.inliilit  >     of    indorsers. 

Cited  in  Lynch  v.  Loftin,  153  N.  C.  273,  69  S.  E.  143,  holding  that  indorser 
cannot  recover  against  subsequent  indorser. 

Cited  in  note  (10  L.R.A.  (N.S.)  261)  on  liability  of  one  retransfering  re- 
indorsed  note  for  value  without  canceling  his  indorsement. 

3  L.  R.  A.  761,  LAFAYETTE  COUNTY  MONUMENT  CORP.  v.  MAGOON,  73 

\Vi<.   627,  42  N.  VV.   17. 
"When   subscription   enforceable. 

Cited  in  McClanahan  v.  Payne,  86  Mo.  App.  290,  holding  gratuitous  subscrip- 
tion unenforceable  if  withdrawn  before  acted  upon;  Seventh  Day  Baptist  Memo- 
rial Fund  v.  Saunders,  84  Wis.  573,  54  N.  W.  1094,  holding  consideration  for 
subscription  note  sufficient  where  others  executed  similar  notes,  some  of  which 
are  paid;  Gibbons  v.  Grinsel,  79  Wis.  371,  48  N.  W.  255,  holding  subscriber  lia- 
ble on  subscription  to  build,  where  person  to  whom  it  runs  has  incurred  ob- 
ligations on  its  strength. 

Cited  in  note   (4  L.  R.  A.  400)    on  conveyance  of  property  to  be  acquired  in 
the   future. 
Parol  evidence  as  to  written  agreement. 

Cited  in  Providence  Washington  Ins.  Co.  v.  Board  of  Education,  49  W.  Va. 
377,  38  S.  E.  679,  holding  agent  of  insurance  company  cannot  verbally  waive 
right  to  repair  or  rebuild  damaged  building. 

Cited  in  footnote  to  Baer's  Appeal,  4  L.  R.  A.  609,  which  holds  inadmissible 
oral  evidence  of  contemporaneous  agreement  for  withdrawal  of  money  at  any 
time. 

Cited  in  notes  (6  L.  R.  A.  34)  on  prior  negotiations  merged  in  written  con- 
tract; (6  L.  R.  A.  38;  13  L.  R.  A.  622)  on  parol  evidence  to  vary  terms  of 
written  instrument;  (17  L.  R.  A.  271)  on  parol  evidence  to  vary,  add  to,  or 
alter  written  contract;  (6  L.  R.  A.  38)  on  parol  evidence  cannot  vary  terms  of 
contract;  (31  L.R.A. (N.S.)  236)  on  admissibility  of  parol  evidence  as  to  man- 
ner or  means  of  paying  written  contract  not  within  statute  of  frauds,  purport- 
ing to  be  payable  in  money. 
K\t  inji  iii  slum- tit  of  original  debt. 

Cited  in  Sutton  v.  Baldwin,  146  Ind.  364,  45  N.  E.  518,  holding  debt  extin- 
guished by  receiving  check  in  payment. 

Cited  in  note    (35  L.R.A. (N.S.)    106)   on  payment  by  commercial  paper. 

3  L.  R.  A.  7G6,  CROSSAN  v.  NEW  YORK  &  N.  E.  R.  CO.  149  Mass.  196,  14 

Am.  St.  Rep.  408,  21  N.  E.  367. 
"When    carrier    can    detain    goods    till    freight    paid. 

Cited  in  Illinois  C.  R.  Co.  v.  Brookhaven  Mach.  Co.  71  Miss.  673,  16  So.  252, 
holding  that  last  carrier  cannot  retain  goods  in  order  to  collect  for  intermediate 
•carrier  rates  in  excess  of  original  contract;  Fordyce  v.  Johnson.  56  Ark.  436,  19 
S.  W.  1050,  holding  final  carrier  entitled  to  lien  on  freight  for  its  own  charges 
and  those  of  former  carrier  paid  by  it,  though  in  excess  of  amount  guaranteed 
in  bill  of  lading  given  by  initial  carrier;  Georgia  R.  &  Bkg.  Co.  v.  Murrah, 
85  Ga.  347,  11  S.  E.  779,  holding  last  carrier  can  hold  goods  until  charges  of 
other  intermediate  carriers  have  been  paid. 

Cited  in  footnotes  to  Taffe  v.  Oregon  R.  &  Nav.  Co.  58  L.  R.  A.  187,  which 
denies  initial  carrier's  liability  under  bill  of  lading  beyond  own  line;  Union 
State  Bank  v.  Fremont,  E.  &  M.  Valley  R.  Co.  59  L.  R.  A.  939,  which  sus- 
tains initial  carrier's  right  to  limit  liability  to  own  line;  St.  Louis,  I.  M.  &  S. 
£.  Co.  v.  Coolidge,  67  L.R.A.  555,  which  holds  that  delay  by  initial  carrier  in 
L.R.A.  Au.  Vol.  I.— 37. 


3  L.R.A.  766]  L.  R.  A.  CASES  Ab  AUTHORITIES.  578 

transporting  goods  liable  to  injury  by  climate  renders  it  liable  for  damage  to 
goods  delivered  to  consignee  in  damaged  condition,  unless  it  shows  that  such 
delay  did  not  produce  the  injury  in  whole  or  part,  notwithstanding  delay  of  con- 
necting carrier;  Kansas  City  F.  S.  &  M.  R.  Co.  v.  Washington,  69  L.R.A.  65, 
which  holds  initial  carrier  checking  baggage  to  destination  on  through  ticket 
liable  for  loss  on  connecting  line. 

Cited  in  notes  (9  L.  R.  A.  450)  on  forwarding  animals  by  connecting  line; 
(9  L.R.A.  836)  on  excuse  for  delay  in  transportation;  (6  L.H.A.  ( N.S. )  1049)  on 
refusal  of  connecting  carrier  to  surrender  freight,  under  mistake  as  to  rate  or 
prepayment,  as  conversion;  (37  L.  ed.  U.  S.  293)  on  duty  and  liability  as  car- 
rier of  live  stock. 
Binding;  effect  of  written  contract  accepted  Tvithont  rending- 

Cited  in  Usher  v.  Raymond  Skate  Co.  163  Mass.  4,  39  N.  E.  416,  holding  that 
note  having  been  taken  upon  statement  of  stranger,  holders  took  their  chances 
on  it. 
II  iulus   of   connecting   carrier*. 

Cited  in  Reynolds  v.  Seaboard  Air  Line  R.  Co.  81  S.  C.  385,  62  S.  E.  445,  hold- 
ing connecting  carrier  may  collect  usual  rates  if  initial  carrier  without  authority 
agrees  to  transport  for  less;  Houston  &  T.  R.  Co.  v.  Everett,  99  Tex.  276,  89  S. 
W.  761,  holding  in  absence  of  course  of  dealing  from  which  authority  could  be 
implied  or  of  agreement  to  that  effect,  initial  carrier  cannot  make  contract  to 
ship  over  route  other  than  authorized  by  connecting  carrier. 
Riiilits  of  party  on  doubtful  instructions  by  other  contracting  party. 

Cited  in  Webb  v.  Hanley,  206  Mass.  304,  92  N.  E.  429,  holding  that  yacht 
builder  may  stop  work  on  boat  on  receipt  of  letter  from  buyer  suggesting  that 
boat  may  be  sold  in  different  place  than  that  in  which  he  first  intended  to  use  it. 

3  L.  R.  A.  769,  RICE  v.  ANGELL,  73  Tex.  350,  11  S.  W.  338. 
Partnership  good-will. 

Cited  in  Dyer  v.  Shove,  20  R.  I.  260,  38  Atl.  498,  holding  upon  dissolution 
of  partnership  each  partner  has  equal  right  to  use  name  of  firm;  Millspaugh 
Laundry  v.  First  Nat.  Bank,  120  Iowa,  5,  94  N.  W.  262,  defining  good-will  as 
benefit  acquired  by  firm  beyond  value  of  stock,  in  consequence  of  patronage 
received  from  regular  customers. 

Cited  in  footnote  to  Hutchinson  v.  Xay,  68  L.R.A.  186,  which  sustains  sur- 
viving partner's  right  to  enter  into  competing  business  and  solicit  trade  from 
customers  of  old  firm,  notwithstanding  sale  of  good  will  as  part  of  firm  assets  at 
instance  of  personal  representative  of  deceased. 

Cited  in  notes   (40  Am.  St.  Rep.  570)   on  rights  of  partners,  as  to  good  will,, 
after  dissolution  of  firm;    (96  Am.  St.  Rep.  611,  612)    on  good  will  of  partner- 
ship as  means  of  making  it  productive  on  dissolution;    (19  Eng.  Rul.  Cas.  664) 
on  partnership  good  will  as  partnership  assets. 
Kind    of   business    to    which    good-will    may    attach. 

Cited  in  Douthart  v.  Logan,  86  111.  App.  311,  holding  no  good-will  attaches 
to  business  of  buying  and  selling  grain  on  commission. 

Cited  in  footnote  to  Slack  v.  Suddoth,  45  L.  R.  A.  589,  which  denies  outgoing 
partner's  right  to  have  forced   sale   of  good-will   of   dental   business. 
Validity  of  partnership  for  indefinite  period. 

Cited  in  Johnson  v.  Jackson,  130  Ky.  755,  114  S.  W.  260,  17  A.  &  E.  Ann.  Cas.. 
699,  holding  contract  to  last  during  mutual  will  of  parties  valid. 


579  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  777 

3  L.  R.  A.   773,  JAMESON   v.  MAJOR,  86   Va.  51,  9  S.  E.  480. 
A  p|i«-:i  !«•    from   interlocutory  decreed. 

Cited  in  Noel  v.  Noel,  86  Va.  112,  9  S.  E.  584,  holding  decree  leaving  anything 
to  be  done  by  the  court,  interlocutory;  Fredenheim  v.  Rohr,  87  Va.  786,  13  S. 
E.  26G  (dissenting  opinion),  majority  upholding  appeal  from  order  of  lower 
court  dissolving  injunction;  Southern  R.  Co.  v.  Glenn,  98  Va.  317,  36  S.  E.  395, 
holding  interlocutory  decree  appealable  at  any  time  within  year  after  final 
decree;  Hopkins  v.  Prichard,  51  W.  Va.  392,  41  S.  E.  347,  holding  decree  appeal- 
able by  person  whose  rights  were  adjudicated  thereby;  Richmond  v.  Richmond, 
<i2  W.  Va.  215,  57  S.  E.  736,  holding  decree  in  partition  which  adjudges  title  in 
parties,  interests  they  hold  and  that  partition  be  made  and  leaves  nothing  to  be 
done  but  division  of  land,  appealable. 

Disapproved  in  ell'ect  in  Wood  v.  Harmison,  41  \V.  Va.  382,  23  S.  E.  560,  hold- 
ing  interlocutory   decree   not   appealable   unless   adjudicating   all   the   principles 
of    the    cause. 
Construction    of    -»vords    of    survivorship. 

Cited  in  Gish  v.  Moomaw.  89  Va.  360,  15  S.  E.  868,  holding  devise  of  re- 
mainder after  life  estate  to  testator's  surviving  brothers  or  heirs  means  sur- 
vivorship at  testator's  death ;  Cheatham  v.  Gowor,  94  Va.  386,  26  S.  E.  853,  hold- 
ing devise  of  remainder  at  death  of  life  tenant  to  his  surviving  children  referred 
to  survivors  of  life  tenant;  Chapman  v.  Chapman,  90  Va.  411,  18  S.  E.  913,  hold- 
ing devise  of  remainder  after  life  estate  vests  immediately  upon  testator's  death; 
Schaeffer  v.  Schaeffer,  54  W.  Va.  684,  46  S.  E.  150,  on  construction  of  terms  of 
survivorship. 

Cited  in  note  (25  Eng.  Rul.  Gas.  725)  on  construction  of  gift  over  to  survivor 
or  survivors  of  bequest  to  a  class. 

3   L.   R.   A.   777,   STATE   ex  rel.   CHARLESTON,   C.   &  C.   R.   CO.   v.   WHITE- 
SIDES,  30  S.  C.  579,  9  S.  E.  661. 

Followed   without,  discussion   in   State   ex  rel.   Charleston,   C.   &  C.   R.   Co.  v. 
Harper,  30  S.  C.  587,  9  S.  E.  664. 
Proceedings  for  tvrit  of  mandamus. 

Cited  in  Lord  v.  Bates,  48  S.  C.  104,  26  S.  E.  213,  holding  mandamus  not 
prerogative  writ,  but  only  a  form  of  action  governed  by  established  rules;  Lau- 
ritsen  v.  Seward,  99  Minn.  325,  109  X.  W.  404,  holding  mandamus  will  not  lie 
to  determir.e  election  contest  involving  question  of  fraud  and  legality  of  elec- 
tion, also  citing  annotation  on  this  subject;  State  ex  rel.  Scale  v.  Durant,  71  S. 
C.  3] 3,  ol  S.  E.  146.  holding  mandamus  will  not  lie  to  compel  board  of  county 
commissioners  to  pay  portion  of  indebtedness  growing  out  of  formation  of  new 
county,  there  being  no  plain  duty  on  part  of  county  to  pay  such  amount. 

Cited  in  notes    (58  L.  R.  A.  834,  835,  866)    on  original  jurisdiction  of  court 
of  last  resort  in  mandamus  case;    (105  Am.  St.  Rep.  122)   on  necessary  parties 
to  proceedings  in  mandamus. 
Mandamus    to    compel    official    action. 

Cited  in  State  ex  rel.  Mauldin  v.  Matthews.  81  S.  C.  416,  22  L.R.A.  ( X.S. )  737, 
128  Am.  St.  Rep.  919,  62  S.  E.  695,  16  A.  &  E.  Ann.  Cas.  182,  holding  mandamus 
will  lie  to  compel  state  board  of  pharmaceutical  examiners  to  issue  license  to 
graduate  of  reputable  college  upon  payment  of  fee;  Graham  v.  Folsom,  200  U.  S. 
252,  50  L.  ed.  468,  26  Sup.  Ct.  Rep.  245,  holding  mandamus  will  lie  to  compel 
county  officers  to  assess  and  collect  taxes  to  pay  judgment  on  township  bonds, 
although  corporate  existence  of  township  lias  been  abolished  and  corporate  agents 
removed. 

Cited  in  footnotes  to  State  ex  rel.  Cromelien  v.  lioyd,  19  L.  R.  A.  227,  which 


3  L.R.A.  777]  L.  R.  A.  GASES  AS  AUTHORITIES.  580 

denies  mandamus  to  compel  governor  to  issue  election  proclamation;  Terri- 
torial Insane  Asylum  v.  Wolttey,  8  L.  R.  A.  188,  which  denies  mandamus  to 
compel  governor  to  sign  warrant  lor  funds  for  asylum;  People  ex  rel.  Brod- 
erick  v.  Morton,  41  L.  R.  A.  231,  which  denies  right  to  mandamus  to  compel 
performance  of  act  by  governor;  Turnbull  v.  Giddings,  19  L.  R.  A.  853,  which 
holds  unenforceable  by  mandamus  legislator's  right  to  have  protest  entered 
on  journal ;  Greenwood  Cemetery  Land  Co.  v.  Routt,  15  L.  R.  A.  369,  which  au- 
thorizes mandamus  to  compel  governor  to  execute  patent  for  land  purchased 
from  land  board;  State  ex  rel.  Miller  v.  Barber,  27  L.  R.  A.  45,  which  holds 
secretary  subject  to  mandamus  to  compel  affixing  to  commission  of  great  seal 
used  by  governor;  Jackson  v.  State,  42  L.  R.  A.  792,  which  sustains  right  to 
mandamus  to  compel  reinstatement  of  pupil  whose  admission  arbitrarily  or 
capriciously  refused;  Biggs  v.  McBride,  5  L.  R.  A.  115,  which  holds  mandamus 
not  proper  proceeding  to  try  title  to  office. 

Cited  in  notes  (6  L.  R.  A.  161)  on  mandamus  to  compel  performance  of  of- 
ficial duty;  (7  L.  R.  A.  105)  on  mandamus  to  enforce  public  duty;  (47  L. 
R.  A.  519)  on  unconstitutionally  of  statute  as  defense  against  mandamus  to 
compel  enforcement;  (20  L.R.A.  (N.S.)  802)  on  mandamus  to  compel  public  offi- 
cer or  board  to  perform  contractual  duty. 
Injunction  against  state  officers. 

Cited   in   Butler   v.   Ellerbe,   44   S.   C.   268,   22   S.   E.    465,   holding   writ   not 
available  to  prevent  payment  of  appropriation  upon  liability  which  state  would 
be  estopped  to  deny. 
Validity  of  township  bonds  issned  in  aid  of  railroad. 

Cited  in  Congaree  Constr.  Co.  v.  Columbia  Twp.  49  S.  C.  542,  27  S.  E. 
570,  holding  act  authorizing  county  to  subscribe  for  railroad  stock  invalid; 
Folsom  v.  Township  Ninety  Six,  159  U.  S.  624,  40  L.  ed.  282,  16  Sup.  Ct.  Rep. 
174,  and  Darlington  v.  Atlantic  Trust  Co.  16  C.  C.  A.  34,  25  U.  S.  App.  354, 
68  Fed.  855,  holding  such  bonds  to  be  tax  for  "corporate  purpose"  within  Con- 
stitution of  South  Carolina;  Holstein  v.  Edgen'eld  County,  64  S.  C.  382,  42  S. 
E.  180,  holding  that  state  court  adjudging  statute  relating  to  issue  of  bonds  void 
will  enforce  subsequent  decision  of  United  States  circuit  court  upholding  act;  Ex 
parte  Folsom,  131  Fed.  498,  holding  unconstitutional  amendment  of  state  consti- 
tution passed  for  purpose  of  impairing  payment  of  railroad  aid  bonds. 

Cited  in  footnote  to  Rathbone  v.  Hopper,  34  L.  R.  A.  674,  which  author- 
izes issuance  of  negotiable  bonds  by  township. 

Cited  in  note   (14  L.  R.  A.  479)    on  validity  of  taxes  in  aid  of  railroads. 
Validating:   township   bonds   in   aid   of   railroad. 

Cited  in  Granniss  v.  Cherokee  Twp.  47  Fed.  428;  Bouknight  v.  Davis,  33  S. 
C.  413,  12  S.  E.  96;  State  ex  rel.  Dickinson  v.  Neely,  30  S.  C.  602,  9  S.  E.  664, 
—  holding  act  providing  for  payment  of  township  bonds  in  aid  of  railroad,  not 
validating  act,  but  valid  as  imposing  tax  on  property  of  township  in  aid  of 
railroad;  Gorham  v.  Broad  River  Twp.  109  Fed.  774,  holding  act  valid  as  with- 
in taxing  power  of  state  in  aid  of  public  highways;  Massachusetts  &  S.  Constr. 
Co.  v.  Cherokee  Twp.  42  Fed.  752,  holding  that  under  such  act  railroad  may 
enforce  delivery  of  bonds  on  completion  of  road  through  township,  by  action 
for  specific  performance;  Smith  v.  Walker,  74  S.  C.  526,  54  S.  E.  779,  holding  act 
authorizing  board  of  county  commissioners  to  adjust  bonded  indebtedness  of 
township  contracted  in  aid  of  railroads,  constitutional. 

Cited  in  note  (27  L.  R.  A.  696)  on  statutes  legalizing  invalid  municipal  con- 
tracts. 


581  L.  K.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  781 

Effect  of  act  repealing  charter  of  corporation. 

Cited  in  State  v.  Tort  R.  &  A.  R.  Co.  45  S.  C.  451,  23  S.  E.  363    (dissenting 
opinion),  majority  holding  that  act  does  not  operate  to  abate  pending  suit  for 
forfeiture   of   charters. 
Validity  of  curative  act. 

Cited  in  Hodge  v.  School  Dist.  80  S.  C.  520,  61  S.  E.  1009,  holding  curative 
act  valid,  although  retroactive,  where  legislature  might  originally  have  author- 
ized it;   Heacock  v.  Sullivan,  70  Kan.  754,  79  Pac.  659,  holding  legislature  can- 
not render  valid  unconstitutional  act  by  curative  act. 
Constitutionality  of   taxation. 

Cited  in  Murph  v.  Landrum,  76  S.  C.  30,  56  S.  E.  850,  holding  constitutional 
act  levying  tax  on  counties  voting  out  dispensary,  for  purpose  of  enforcing~~dis- 
pensary  law. 

3  L.  R.  A.  781,  BURKETT  v.  BURKETT,  78  Cal.  310,  12  Am.  St.  Rep.  58,  20 

Pac.  715. 
Conveyances   between   husband   and   wife. 

Cited  in  Luhrs  v.  Hancock,  181  U.  S.  572,  45  L.  ed.  1008,  21  Sup.  Ct.  Rep. 
726;  Tillaux  v.  Tillaux,  115  Cal.  672,  47  Pac.  691;  Ions  v.  Harbison,  112  Cal. 
266,  44  Pac.  572;  Oaks  v.  Oaks,  94  Cal.  68,  29  Pac.  330,  —  holding  conveyance 
from  husband  to  wife  vests  legal  title  in  latter,  subject  to  homestead  rights 
of  husband;  Tillaux  v.  Tillaux,  115  Cal.  671,  47  Pac.  691,  holding  conveyance 
not  prima  facie  void  on  account  of  marriage  relation;  Hamilton  v.  Hubbard, 
134  Cal.  606,  65  Pac.  321,  holding  that  conveyance  by  husband  to  wife,  of  his 
own  or  community  property,  unless  contrary  intent  appears,  vests  title  in  wife 
as  her  separate  property;  Re  Lamb,  95  Cal.  406,  30  Pac.  568,  holding  such 
conveyance  does  not  constitute  abandonment  of  homestead;  Re  Winslow,  121 
Cal.  95,  53  Pac.  362,  holding  separation  agreement  between  husband  and  wife, 
providing  for  equal  division  of  all  property,  including  homestead,  operates  as 
abandonment  of  homestead;  Alferitz  v.  Arrivillaga,  143  Cal.  649,  77  Pac.  657, 
and  Taylor  v.  Opperman,  79  Cal.  471,  21  Pac.  869,  holding  husband's  deed  of 
community  property  to  wife  superior  to  subsequent  deed  to  third  person ; 
Gleason  v.  Spray,  81  Cal.  219,  15  Am.  St.  Rep.  47,  22  Pac.  551,  holding  hus- 
band's deed  after  homestead  declaration  void;  Carter  v.  McQuade,  83  Cal.  278, 
23  Pac.  348,  holding  husband's  creditor  with  notice  of  transfer  to  wife,  without 
rights  as  against  property  given  wife  under  separation  agreement;  Porter  v. 
Bucher,  98  Cal.  461,  33  Pac.  335,  holding  sale  of  hay  not  void  for  lack  of 
delivery,  when  stack  on  homestead  land;  Beedy  v.  Finney,  118  Iowa,  280,  91  N. 
W.  1069,  holding  that  husband  and  wife  need  not  unite  in  deed  of  homestead 
by  husband  to  wife;  Turner  v.  Bernheimer,  95  Ala.  245,  36  Am.  St.  Rep.  207,  10 
So.  750,  holding  conveyance  from  husband  to  wife  conveys  legal  title  to  her  sub- 
ject to  all  pre-existing  homestead  rights;  Murphy  v.  Farquhar,  39  Fla.  358,  22  So. 
681,  holding  attempted  transfer  of  legal  title  by  husband  to  wife  does  not  give 
to  judgment  against  him  any  other  or  further  lien  or  right  in  or  to  homestead 
than  it  had  before,  if  right  to  exemption  be  not  otherwise  forfeited;  Loomis  v. 
Loomis,  148  Cal.  152,  1  L.R.A.(N.S.)  314,  82  Pac.  679,  holding  conveyance  of 
homestead  by  husband  to  wife  conveys  nothing,  and  does  not  affect  right  of  sur- 
vivorship of  wife :  Luhrs  v.  Hancock,  6  Ariz.  344,  57  Pac.  605,  holding  valid  a 
conveyance  of  homestead  from  husband  to  wife  without  latter  joining  in  deed. 

Cited  in  notes  ( 10  L.  R.  A.  221 )  on  husband's  conveyance  of  homes'tead  to 
wife;  (6  L.R.A.  559)  on  contracts  between  husband  and  wife;  (69  L.R.A.  379) 
on  effect  of  conveyance  by  husband  to  wife;  (126  Am.  St.  Rep.  107)  on  effect  of 
deed  of  community  property  by  husband  to  wife. 


3  L.R.A.  781]  L.  R.  A.  CASES  AS  AUTHORITIES.  582 

Distinguished   in   Freiermuth   v.   Steigleman,    130   Cal.   393,   80   Am.   St.   Rep. 
138,   62   Pac.   615,   holding   mortgage   ef   homestead   by   wife   to   husband   to   se- 
cure   indebtedness    invalid. 
Effect   of   divorce   upon    homestead    riulit. 

Cited  in  Huellmantel  v.  Huellmantel,  124  Cal.  588,  57  Pac.  582,  holding  that 
decree  of  divorce  giving  wife  permanent  alimony  in  lieu  of  homestead  right 
leaves  title  to  homestead  in  husband,  freed  from  homestead  rights;  Arp  v. 
Jacobs,  3  Wyo.  496,  27  Pac.  800,  holding  divorce  terminates  all  interest  in  home- 
stead by  right  of  survivorship;  Arp  v.  Jacobs,  3  Wyo.  496,  27  Pac.  800,  holding 
decree  of  divorce  destroys  right  of  survivorship  to  homestead. 

Cited  in  notes  (23  L.  R.  A.  240)  on  effect  of  divorce  on  homestead  rights;    (39 
L.R.A.  (X.S.)    198)    on   applicability   of   statutory   provision    for   restoration    of 
property  on  divorce,  to  voluntary  gifts  or  conveyances. 
Moftgragre  of  homestead  to  third  party. 

Cited  in  Hart  v.  Church,  126  Cal.  476,  77  Am.  St.  Rep.  195,  58  Pac.  910,  hold- 
ing valid  mortgage  upon  homestead  can  be  made  only  by  joint  and  concurrent 
execution  of  conveyance  by  husband  and  wife;  Cordano  v.  Wright,  159  Cal.  619, 
115  Pac.  227,  holding  same;  California  Fruit  Transf.  Co.  v.  Anderson,  79  Fed. 
406,  holding  mortgage  by  wife  of  homestead  to  secure  antecedent  debt  of  hus- 
band not  binding  on  her. 

Cited  in  footnote  to  Wallace  v.  Travelers'  Ins.  Co.  26  L.  R.  A.  806,  which 
holds  recorded  power  of  attorney  to  husband  insufficient  showing  of  consent 
to  mortgage  of  homestead. 

Cited  in  notes  (12  Am.  St.  Rep.  684,  686;  95  Am.  St.  Rep.  924,  925)  on  effect 
of  conveyance  or  encumbrance  of  homestead  by  one  spouse  only. 

Interest    of   spouse   in   homestead   selected    by   other   from    separate    prop- 
erty. 

Cited  in  Rosenberg  Bros.  &  Co.  v.  Ross,  6  Cal.  App.  759,  93  Pac.  284,  holding 
on  selection  of  homestead  by  wife  she  and  her  husband  become  vested  with  joint 
title  therein. 

3  L.  R.  A.  784,  DUCHEMIN  v.   KENDALL.   149  Mass.    171,   21   N.  E.  242. 
Executory   contracts   for  sale  of  stock. 

Cited  in  Guilford  v.  Mason,  22  R.  1.  427,  48  Atl.  386,  holding  actual  tender 
not   necessary   to   preserve   rights   under   option    contract   to   sell    stock. 
Cited    in   note    (5    L.   R.    A-   202)    on   contracts    for    future    delivery. 

3  L.  R.  A.  785,  BARNES  v.  BOARDMAN,  149  Mass.  106,  21  X.  E.  308. 

Other  actions  for  partition,  in  Barnes  v.  Lynch,  151  Mass.  511,  21  Am.  St.  Rep. 
470,  24  N.  E.  783,  and  Barnes  v.  Boardman,  157  Mass.  481,  32  N.  E.  070. 
Mortn'nsre   collateral   to   debt. 

Cited  in  Com.  v.  Globe  Investment  Co.  168  Mass.  81,  40  X.  E.  410,  holding 
legal  holder  of  mortgage  notes  entitled  to  assignment  of  mortgage;  Five  v.  Ber- 
ry, 181  Mass.  443,  63  N.  E.  1071,  holding  payment  of  debt  discharges  mortgage. 
'Tax  sale. 

Cited  in  Land  &  River  Improv.  Co.  v.  Bardon,  45  Fed.  709.  upholding  as- 
sessment and  sale  of  quarter  section  owned  by  one  person  as  one  tract ;  Bren- 
tano  v.  Brentano,  41  Or.  19.  (57  Pat-.  922.  holding  tax  sale  of  separate  tracts  for 
lump  sum  void;  Sheafer  v.  Mitchell.  109  Tenn.  183,  71  S.  W.  8(3,  sustaining  tax 
deed  executed  by  sheriff's  successor  thirteen  years  after  sale;  Charland  v.  Home 
for  Aged  Women,  204  Mass.  567.  134  Am.  St.  Rep.  696,  91  N.  E.  146.  holding  tax 
deed  void  which  does  not  contain  statements  prescribed  by  statute;  North  Real 


583  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  789 

Estate  Loan  &  T.  Co.  v.  Billings  Loan  &  T.  Co.  36  Mont.  366,  93  Pac.  40,  holding 
sale  of  several  disconnected  town  lots,  which  are  assessed  together  and  sold  ec 
masse,  void. 

Disapproved  in  Shelton  v.  Franklin.  224  Mo.  360,  123  S.  W.  1084,  holding  tax 
deed  to  more  than  the  statutory  forty  acres  was  not  presumptively  a  sale  in 
solido  of  more  than  the  law  allowed. 
Laches. 

Cited  in  Haven  v.  Haven,  181  Mass.  579,  64  N.  E.  410,  holding  delay  in  assert- 
ing rights,   not  operating  to   prejudice   of  opposite   party,   not   laches. 
Validity  of  conveyance  by  tenant  in  common  as  against  co-tenant. 

Cited  in  Benjamin  v.  American  Teleph.  &  Teleg.  Co.  196  Mass.  456,  82  N.  E. 
1581,  13  A.  &  E.  Ann.  Gas.  306,  holding  conveyance  by  metes  and  bounds  by  ten- 
ant in  common  voidable  as  against  cotenant. 

3  L.  R.  A.  789,  HUYCK  v.  ANDREWS,  113  N.  Y.  81,  10  Am.  St.  Rep.  432,  20 

N.   E.  581. 
What   deemed   encumbrance. 

Cited  in  Nathan  v.  Morris,  62  Hun,  454,  17  N.  Y.  Supp.  13,  holding  restric- 
tion against  building  on  10  feet  of  frontage  an  encumbrance;  Kountze  v.  Hel- 
j.iiith.  67  Hun,  347,  22  N.  Y.  Supp.  204.  holding  agreement  by  landowners  re- 
stricting character  and  location  of  buildings,  running  with  land,  creates  recip- 
rocal easements;  Los  Angeles  Terminal  Land  Co.  v.  Muir,  136  Gal.  48,  68  Pac. 
3-27.  holding  restriction  in  use  of  premises  by  grantee,  not  purporting  to  be  for 
benefit  of  adjoining  estate,  no  easement;  Eller  v.  Moore,  48  App.  Div.  405,  63 
N.  V.  Supp.  88,  holding  existence  and  assertion  of  right  to  use  private  road, 
breach  of  covenant  for  quiet  enjoyment;  Copeland  v.  McAdory,  100  Ala.  557,  13 
So.  545,  holding  public  highway  within  covenant  against  encumbrances;  Clark 
v.  Mossniun,  58  Neb.  93,  78  N.  \V.  399,  holding  public  highway  not  a  breach 
of  covenant  against  encumbrances:  Milot  v.  Reed,  11  Mont.  571,  29  Pac.  343, 
holding  taxes  lawfully  levied  within  covenant  of  warranty;  Archer  v.  Archer, 
84  Hun,  299,  32  N.  Y.  Supp.  410,  holding  natural  stream  not  an  easement; 
Treadwell  v.  Inslee,  120  N.  Y.  465,  24  N.  E.  651,  holding  drain  from  grantor's 
lands,  right  to  which  not  reserved  in  deed  of  grantee's  lot,  not  easement;  Uih- 
lein  v.  Matthews,  172  N.  Y.  158,  64  N.  E.  792,  holding  agreement  not  to  use 
ljuilding  for  saloon  an  encumbrance;  Denman  v.  Mentz,  63  N.  J.  Eq.  616,  52 
Atl.  1117,  holding  easement  for  light  an  encumbrance;  Remsen  v.  Wingert,  112 
App.  Div.  238.  98  N.  Y.  Supp.  388,  holding  right  to  adjoining  owner  of  keeping 
windows  forever  open  in  house  on  adjoining  lot,  incumbrance;  Kidder  v.  Childs, 
130  App.  Div.  262,  114  N.  Y.  Supp.  561  (dissenting  opinion),  on  public  high- 
way as  constituting  incumbrance;  Schurger  v.  Moorman,  20  Idaho,  107,  36 
L.R.A.  (N.S.)  320,  117  Pac.  122,  holding  that  easement  for  maintenance  of  irri- 
gation canal  is  not  breach  of  covenant  against  incumbrances;  Re  Bensel,  140  App. 
Div.  262,  125  N.  Y.  Supp.  128,  holding  that  right  of  way  is  encumbrance; 
Stuhr  v.  Butterfield,  151  Iowa,  745,  36  L.R.A. (N.S.)  325,  130  N.  W.  897  (dis- 
senting opinion),  on  drainage  ditch  as  incumbrance. 

Cited  in  notes  (8  L.  R.  A.  617)  on  easement  denned;  (6  L.  R.  A.  107)  on 
covenants  denned  and  construed. 

Limited  in  Hymes  v.  Estey.  116  N.  Y.  505.  15  Am.  St.  Rep.  421,  22  N.  E.  1087, 
holding  public  highway,  of  which  there  was  no  indication  or  notice,  breach  of 
warranty. 
Breach    of   covenant. 

Cited  in  Pabst  Brewing  Co.  v.  Thorley,  76  C.  C.  A.  87,  145  Fed.  120,  holding 


3  L.R.A.  789]  L.  R.  A.  CASES  AS  AUTHORITIES.  684 

covenant  for  quiet  possession  broken  where  city  which  has  given  license  to  main- 
tain vault  under  street  revokes  license  after  lease  by  licensee. 

Cited  in  note  (36  L.R.A.(X.S.)   314,  315)  on  existence  of  water  right  on  land: 
at  time  of  conveyance  as  breach  of  covenants. 
Damages    for    breach    of    covenant. 

Cited  in  Brown  v.  Allen,  73  Hun,  295,  26  N.  Y.  Supp.  299,  holding  that 
damages  recoverable  by  purchaser  who  has  removed  timber,  for  breach  of  war- 
ranty, bear  same  ratio  to  purchase  price  as  value  at  time  of  eviction  bore  to. 
value  with  timber;  Humes  v.  Esty,  133  N.  Y.  346,  31  N.  E.  105,  holding  dam- 
ages for  eviction  comprise  depreciation  in  value  by  enforcement  of  easement, 
with  interest  and  costs  of  eviction  action;  Utica,  C.  &  S.  Valley  R.  Co.  v.  Gates,. 
8  App.  Div.  183,  40  N.  Y.  Supp.  316,  Affirming  21  Misc.  209,  47  N.  Y.  Supp. 
231,  holding  amount  of  encumbrances  paid,  not  exceeding  value  of  premises 
when  conveyed,  recoverable  upon  covenant  against  encumbrances;  De  Long  v. 
Spring  Lake  &  S.  G.  Co.  65  N.  J.  L.  7,  47  Atl.  491,  holding  measure  of  dam- 
ages for  breach  of  covenant  against  encumbrances  amounting  to  failure  of 
title,  consideration  with  interest;  Herb  v.  Metropolitan  Hospital,  80  App.  Div. 
150,  80  N.  Y.  Supp.  552,  holding  difference  between  value  before  and  after 
erection  of  wall  measure  of  damages  for  breach  of  covenant. 
Covenantee's  knowledge  of  encumbrance. 

Cited  in  Ladue  v.  Cooper,  32  Misc.  547,  67  N.  Y.  Supp.  319,  and  Eller  v. 
Moore,  48  App.  Div.  406,  63  N.  Y.  Supp.  88,  holding  knowledge  of  existence 
of  easement  no  defense  to  action  upon  covenant  against  encumbrances:  Xathan 
v.  Morris,  62  Hun,  456,  17  N.  Y.  Supp.  13,  holding  purchaser  knowing  of  en- 
cumbrance when  contract  signed  may  refuse  to  complete  sale;  Burr  v.  Lamas- 
ter,  30  Xeb.  698,  9  L.  R.  A.  640,  27  Am.  St.  Rep.  428,  46  N.  W.  1015,  holding 
covenant  against  encumbrances  covers  those  known  and  unknown  to  purchaser: 
Docter  v.  Darling,  68  Hun,  73,  22  N.  Y.  Supp.  594,  holding  oral  evidence  in- 
admissible to  show  purchaser's  knowledge  of  encumbrance;  Pryor  v.  Buffalo.  19r 
X.  Y.  137,  90  X.  E.  423,  holding  knowledge  of  occupancy  of  portion  of  premises- 
by  railroad  does  not  defeat  right  of  grantee  to  rely  on  covenant  of  title  in  grant- 
or; Goodman  v.  Heilig,  157  X.  C.  8,  36  L.R.A.(X.S.)  1006,  72  S.  E.  806,  hold- 
ing that  railroad  right  of  way  is  not  breach  of  covenant,  as  purchaser  is  pre- 
sumed to  have  knowledge  thereof;  Smith  v.  Ward,  66  W.  Va.  194,  33  L.R.A.. 
(X.S.)  1032,  66  S.  E.  234,  holding  that  knowledge  by  grantee  by  warranty  deecE 
of  superior  claim  to  part  of  land  will  not  bar  him  from  compensation  for  such. 
part. 

Cited  in  note  (4  L.R.A.  (X.S.)  315,  316)  on  effect  of  purchaser's  knowledge 
of  encumbrance  in  action  for  breach  of  covenant. 

Distinguished  in  Charman  v.  Hibbler,  31  App.  Div.  480,  52  X.  Y.  Supp.  212. 
holding  proof  of  grantee's  knowledge  of  restrictions  upon  use  of  premises  com- 
petent in  mitigation  of  damages. 
"Interest   In   land." 

Cited  in  Oates  v.  Headland,  154  Ala.  505,  45  So.  910,  holding  right  to  easement 
is  interest  in  land. 
Creation    of    easements    appurtenant. 

Cited  in^Ruhnke  v.  Aubert,  58  Or.  10,  113  Pac.  38,  holding  that  right  reserved 
in  deed  to  take  water  from  ditch  is  easement  appurtenant  to  land. 

Cited  in  note  (136  Am.  St.  Rep.  682)  on  creation  and  conveyance  of  easements- 
appurtenant. 
"\Vhnt   covenants  run  with  land. 

Cited  in  note   (82  Am.  St.  Rep.  668)  on  what  covenants  run  with  the  land. 


585  ,          L.  K.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  796 

3  L.  R.  A.  795,  JOHNSON  v.  GR1SARD,  51  Ark.  410,  11  S.  W.  58f>. 

Chattel    unirl  ii.'ii;  i-. 

Cited  in  notes    (6   L.   R.   A.   643)    on  right  to   show  that  absolute  sale   is  a 
mortgage;    (10  L.  R.  A.   491)    on  mortgage  on  implanted  crops;    (6   L.   R.   A. 
618)  on  right  to  growing  crops;    (5  Eng.  Rul.  Cas.  137,  139)  on  validity  of  mort- 
gage of  future  crops. 
Sufficiency    of    description. 

Cited  in  Henderson  v.  Gates,  52  Ark.  373,  12  S.  W.  780,  holding  "my  entire 
crops  of  cotton  and  corn,  to  be  raised  the  present  year,"  sufficient;  Lightle  v. 
Castleman,  52  Ark.  279,  12  S.  W.  564,  holding  "black  mare,  six  years  old,  in 
mortgagor's  possession,"  sufficient;  Harkey  v.  Jones,  54  Ark.  159,  15  S.  W.  192, 
holding  "brindle  cow,  three  years  old,"  sufficient,  though  mortgagor  has  two 
such;  Alferitz  v.  Ingalls,  83  Fed.  968,  holding  "8,000  sheep,  and  increase 
thereof,  now  in  county  of  M.,"  sufficient;  Hughes  v.  Abston,  105  Tenn.  73,  58 
S.  W.  296,  holding  "my  entire  interest  in  crop  of  corn,"  etc.,  "to  be  grown  by 
me  this  present  year"  sufficient  in  Arkansas;  Cragin  v.  Dickey,  113  Ala.  313, 
21  So.  55,  holding  mortgage  of  300  sheep  in  W.  county,  earmarked  in  manner 
described,  branded  "D,"  valid  between  parties,  though  all  not  branded;  Sho- 
maker  v.  Waters,  56  Fla.  561,  47  So.  936,  holding  sufficient  a  description  of  "all 
cotton,  corn  and  other  products  grown  or  produced"  upon  mortgagor's  farm  in 
given  year,  where  county  is  shown  'and  mortgagor  owns  but  one  farm ;  First  Nat. 
Bank  v.  Rogers,  24  Okla.  363,  103  Pac.  582,  holding  sufficient  description  as  fol- 
lows; "product  and  proceeds  of  all  my  1907  cotton  and  all  my  future  crops  un- 
til note  is  paid. 

Cited  in  footnote  to  Turpin  v.  Cunningham,  51  L.  R.  A.  800,  which  holds 
mortgagee's  rights  not  affected  as  against  subsequent  purchaser  by  change  in 
color  of  mortgaged  norse  after  mortgage  given. 

Cited  in  note  (23  L.  R.  A.  459)  on  sufficiency  of  description  in  sale  or  mort- 
gage of  future  crops. 

3  L.  R.  A.  796,  MINNEAPOLIS  THRESHING  MACH.  CO.  v.  DAVIS,  40  Minn. 

110,  12  Am.  St.  Rep.  701,  41  N.  W.  1026. 
•Subscriptions    for   stock   in    proposed    corporation. 

Cited  in  Badger  Paper  Co.  v.  Rose,  95  Wis.  151,  37  L.  R.  A.  165,  70  N.  W. 
302,  holding  agreement  to  take  stock  in  corporation  to  be  formed  does  not 
constitute  signer  stockholder  until  accepted  by  corporation;  Balfour  v.  Baker 
City  Gas  Co.  27  Or.  306,  41  Pac.  164,  holding  formation  of  corporation  con- 
stitutes stock  subscriber  stockholder;  Cravens  v.  Eagle  Cotton  Mills  Co.  120 
Ind.  14,  21  N.  E.  981,  holding  conditional  stock  subscription  becomes  absolute 
upon  obtaining  required  amount  of  subscriptions;  Chicago  Bldg.  &  Mfg.  Co.  v. 
Lyou,  10  Okla.  706,  64  Pac.  6,  holding  subscription  to  stock  of  proposed  cor- 
poration irrevocable;  Nebraska  Chicory  Co.  v.  Lednicky,  79  Neb.  594,  113  N.  W. 
245,  holding  the  subscription  is  in  the  nature  of  a  continuing  offer  to  the  pro- 
posed corporation  which  upon  acceptance  constitutes  a  contractual  relation; 
Garrett  v.  Philadelphia  Lawn  Mower  Co.  39  Pa.  Super.  Ct.  82,  holding  that  agree- 
ment by  subscribers  that  they  will  offer  their  stock  to  each  other  before  selling 
it  is  enforceable  against  their  executors;  Steely  v.  Texas  Improv.  Co.  55  Tex.  Civ. 
App.  472,  119  S.  W.  319,  holding  that  subscriber  cannot  withdraw  his  subscrip- 
tion without  unanimous  consent  of  other  subscribers;  Greenbriar  Industrial  Ex- 
position v.  Squires,  40  W.  Va.  312,  52  Am.  St.  Rep.  884,  21  S.  E.  1015,  holding 
'where  one  takes  part  in  the  meeting  of  stockholders  and  votes  as  a  stockholder 
ior  directors  he  cannot  avoid  an  assessment  on  his  stock  though  there  is  a  de- 
parture from  the  original  plan  of  incorporation. 


3  L.R.A.  796]  L.  R.  A.  CASES  AS  AUTHORITIES.  586 

Cited  in  footnote  to  Elyton  Land  Co.  v.  Birmingham  Warehouse  &  Elevator 
Co.  12  L.  R.  A.  307,  which  holds  subscribers  liable  to  creditors  where  stock  paid 
for  by  conveyance  of  land  worth  only  amount  assumed  by  corporation. 

Cited  in  notes  (33  L.R.A.  596)  on  withdrawal  of  subscription  for  shares  of 
corporation;  (16  Am.  St.  Rep.  307)  on  subscription  to  stock  in  proposed  corpo- 
ration; (33  Am.  St.  Rep.  247)  on  subscription  prior  to  organization  of  corpora- 
tion; (136  Am.  St.  Rep.  739,  745),  on  nature  and  validity  of  subscription  agree- 
ment to  corporate  stock. 

Distinguished  in  Northwestern  Creamery  Co.  v.  Lanning,  83  Minn.  20,  85  N, 
W.  823,  holding  note  given  in  consideration  of  establishment  of  milk-skimming 
station  and  issuance  of  stock  not  subscription;  Crow  River  Valley  Creamery  Co. 
v.  Strande,  104  Minn.  48,  115  N.  W.  1038,  holding  where  subscribers  mutually 
agree  to  pay  loan  to  corporation  being  formed,  which  its  directors  were  author- 
ized to  make,  the  corporation  may  sue  a  subscriber  for  his  liability  thereon. 
Parol  evidence  of  collateral  agreement. 

Cited  in  Newland  Hotel  Co.  v.  Wright,  73  Mo.  App.  243,  holding  agree- 
ment to  accept  payment  of  stock  subscription  in  property  not  provable  by 
parol ;  Ollesheimer  v.  Thompson  Mfg.  Co.  44  Mo.  App.  182,  holding  liability  of 
subscriber  as  stockholder  not  affected  by  extrinsic  agreement  with  promoter, 
not  amounting  to  fraudulent  representations;  Walter  A.  Wood  Harvester  Co. 
v.  Jefferson,  71  Minn.  370,  74  N.  \Y.  149,  holding  evidence  of  false  representa- 
tions immaterial  in  action  on  stock  subscription;  Smith  v.  Mussetter,  58  Minn. 
162,  59  N.  W.  995,  holding  parol  evidence  admissible  to  show  that  delivery  of 
note  conditional;  Newland  Hotel  Co.  v.  Wright,  73  Mo.  App.  243, — holding  a 
subscription  to  stock  cannot  be  varied  by  parol  evidence  showing  a  contempo- 
raneous agreement;  Mendenhall  v.  Ulrich,  94  Minn.  102,  101  N.  \Y.  1057, — 
holding  parol  evidence  is  admissible  to  show  that  a  written  contract  was  intend- 
ed to  be  operative  only  on  the  happening  of  some  future  event;  Graham  v.  Sav- 
age, 110  Minn.  513,  126  N".  W.  394,  holding  inadmissible,  parol  evidence  that, 
real  agreement  was  taking  of  subscriptions  to  stock  instead  of  written  agree- 
ment to  sell  stock. 

Cited  in  footnote  to  Baer's  Appeal,  4  L.  R.  A.  609,  which  holds  inadmissible 
oral  evidence  of  contemporaneous  agreement  for  withdrawal  of  money  at  any 
time. 

Cited  in  notes  (4  L.  R.  A.  609,  17  L.  R.  A.  271)  on  parol  evidence  to  vary,  add 
to,  or  alter  written  contract;  (6  L.  R.  A.  36)  on  parol  evidence  of  prior  or  con- 
temporaneous agreement  to  contradict  or  vary  contract;  (13  L.  R.  A.  622)  on 
parol  evidence  to  vary  terms  of  trust. 

Distinguished  in  Northwestern  Creamery  Co.  v.  Lanning,  83  Minn.  20,  85  N. 
W.  823,  holding  parol  testimony  is  admissible  to  show  failure  of  consideration, 
for  a  written  promise  made  by  a  subscriber  to  stock. 

3  L.  R.  A.  801,  FINLAYSON  v.  FINLAYSON,  17  Or.  347,  11  Am.  St.  Rep.  8Sfi,. 

21  Pac.  57. 
Equitable   lien. 

Cited  in  Stramann  v.  Scheeren,  7  Colo.  App.  15,  42  Pac.  191,  holding  wife  ha? 
equitable  lien  on  property  improved  with  her  money. 
Fraudulent     representations. 

Cited  in  Evans  v.  Evans,  118  Ga.  894,  98  Am.  St.  Rep.  180,  45  S.  E.  612. 
holding  inducement  by  wife  of  gift  of  real  estate  from  husband,  after  she  had 
been  guilty  of  adultery,  or  in  contemplation  thereof,  such  fraud  on  husband  as 
to  entitle  him  to  revocation  on  discovery  of  her  conduct. 

Cited   in   notes    (11   L.   R.   A.    198)    on  fraudulent  representations   as  ground 


587  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  808 

of  rescission;  (6  L.  R.  A.  219)  on  false  representations  inducing  entry  into  con- 
tract; (10  L.R.A.  606)  on  proof  of  fraud  must  l-e  clear  and  strong;  (69  L.R.A. 
360)  on  fraud  in  conveyance  by  husband  to  wife;  (13  Am.  St.  Rep.  431)  on 
what  representations  are  fraudulent;  (65  Am.  St.  Rep.  507)  on  reformation  of 
contracts  for  fraud;  (£1  Am.  St.  Rep.  193)  on  improvements  on  property  of  wife 
by  husband;  (12  Eng.  Rul.  Gas.  295)  on  what  constitutes  fraud  and  liability 
therefor. 
Parol  evidence  varying:  written  Instrument. 

Cited  in  Staub  v.  Hampton,  117  Tenn.  726,  101  S.  W.  776,  holding  parol  evi- 
dence admissible  to  identify  land  described. 

Cited  in  notes  (6  L.  R.  A.  45)  on  limits  and  exceptions  to  rule  as  to  parol 
evidence;  (17  L.  R.  A.  272)  on  exceptions  to  rule  against  admission  of  parol  evi- 
dence; (5  L.  R.  A.  596)  on  oral  evidence  as  consideration  in  sealed  instrument; 
(20  L.  R.  A.  108)  on  parol  evidence  as  to  consideration  of  deed;  (3  L.  R.  A. 
849)  on  parol  evidence  of  patent  and  latent  ambiguities  in  will;  (28  L.R.A. 
(  X.S. )  877,  879)  on  statute  of  frauds  as  affecting  parol  variation  of  instrument; 
(15  Am.  St.  Rep.  715;  11  Eng.  Rul.  Cas.  231)  on  parol  evidence  to  contradict 
written  instrument;  (24  Am.  St.  Rep.  714)  on  parol  evidence  as  to  deeds;  (14 
Eng.  Rul.  Cas.  754)  on  parol  evidence  as  to  consideration  of  deed. 
Implied  trust  from  donor's  expectation  to  share  in  gitt. 

Cited  in  note  (24  L.R.A. (N.S.)  1043)  on  donor's  expectation  that  donee  will 
allow  him  to  share  in  benefit  of  property,  as  raising  implied  trust. 

3  L.  R.  A.  808,  RICHMOND  &  D.  R.  CO.  v.  CHILDRESS,  82  Ga.  719,  14  Am.  St. 

Rep.  189,  9  S.  E.  602. 
lliiilit    to   physical    examination. 

Cited  in  Gray  v.  State.  55  Tex.  Crim.  Rep.  Ill,  22  L.R.A.  (N.S.)  525,  114  S. 
W.  635,  holding  accused  in  homicide  case  has  right  to  have  autopsy  on  body  of 
decedent  to  show  character  of  wounds;  Mutual  L.  Ins.  Co.  v.  Griesa,  156  Fed. 
402,  holding  court  of  equity  has  power  to  order  exhumation  of  body  in  action 
on  life  insurance  policy  where  one  defense  is  suicide  by  poison. 

Cited  in  note    (2  L.R.A. (N.S.)    387)   on  waiver  of  right  to  object  to  physical 
examination  or  exhibition  of  person. 
In    action    for    personal    injuries. 

Cited  in  Alabama  G.  S.  R.  Co.  v.  Hill.  90  Ala.  77,  9  L.  R.  A.  444,  24  Am.  St. 
Rep.  764,  8  So.  90,  holding  abuse  of  discretionary  power  of  trial  court  to  order 
physical  examination  ground  for  reversal:  South  Bend  v.  Turner,  156  Ind.  426, 
54  L.  R.  A.  400,  83  Am.  St.  Rep.  200,  60  N.  E.  271,  holding  refusal  to  order  physi- 
cal examination  unattended  by  pain  or  danger  reversible  error;  Hall  v.  Manson, 
99  Iowa,  712,  34  L.  R.  A.  213,  68  N.  W.  922,  holding  refusal  to  order  measure- 
ment of  injured  foot  before  jury,  evidence  being  contradictory  and  witness  not 
objecting,  error;  Austin  &  X.  W.  R.  Co.  v.  Cluck,  97  Tex.  176,  64  L.  R.  A.  496, 
104  Am.  St.  Rep.  863.  77  S.  W.  403,  1  Ann.  Cas.  261,  holding  that  plaintiff  in 
action  tor  personal  injuries  may  be  compelled  to  testify  whether  or  not  he  refused 
to  submit  to  physical  examination. 

Cited  in  footnotes  to  Alabama  G.  S.  R.  Co.  v.  Hill,  9  L.  R.  A.  442,  which  holds 
delicacy  and  refinement  of  feeling  not  ground  for  refusing  to  order  surgical  ex- 
amination of  plaintiff:  Anonymous.  7  L.  R.  A.  425,  which  authorizes  personal 
examination  of  parties  to  suit  for  divorce  on  ground  of  malformation. 

Cited  in  notes    (14  L.  R.  A.  467)    on  power  to  compel  plaintiff  to  submit  to 
physical  examination;    (9  L.  R.  A.  323)   on  right  to  compel  party  to  furnish  evi- 
.iLfuinst  himself. 


3  L.R.A.  808]  L.  R.  A.  CASES  AS  AUTHORITIES.  588 

Distinguished   in  Bagwell   v.   Atlanta   Consol.   Street  R.   Co.    109   Ga.   612,   47 
L.  R.  A.  487,  34  S.  E.   1018,  holding  daughter's  refusal  to  submit  to  physical 
examination  after  attaining  majority  does  not  defeat  father's  action  for  loss  of 
services. 
Power   of   court    to   order. 

Cited  in  Lane  v.  Spokane  Falls  &  X.  R.  Co.  21  Wash.  120,  46  L.  R.  A.  154, 
158,  75  Am.  St.  Rep.  821,  57  Pac.  367;  Ottawa  v.  Gilliland,  63  Kan.  172,  88  Am. 
St.  Rep.  232,  65  Pac.  252 ;  O'Brien  v.  La  Crosse,  99  Wis.  425,  40  L.  R.  A.  833,  75 
N.  W.  81;  Savannah,  F.  &  W.  R.  Co.  v.  Wainwright,  99  Ga.  255,  25  S.  E.  622,— 
holding  physical  examination  pending  trial,  within  judge's  discretion;  Graves  v. 
Battle  Creek,  95  Mich.  270,  19  L.  R.  A.  642,  35  Am.  St.  Rep.  561,  54  N.  W.  757, 
holding  court  may  order  exhibition  of  injured  arm  to  physician,  in  jury's  pres- 
ence; Johnston  v.  Southern  P.  Co.  150  Cal.  542,  89  Pac.  348,  11  A.  &  E.  Ann.  Cas. 
841,  holding  court  can  order  physical  examination  by  doctor  of  defendant  where 
plaintiff  calls  doctor  to  testify  in  her  behalf;  Brown  v.  Chicago,  M.  &  St.  P.  R. 
Co.  12  N.  D.  68,  102  Am.  St.  Rep.  564,  95  N.  W.  153,  holding  court  has  power 
to  order  physical  examination  of  female  plaintiff;  Macon  R.  &  Light  Co.  v.  Vin- 
ing,  120  Ga.  514,  48  S.  E.  232;  Cedartown  v.  Brooks,  2  Ga.  App.  590,  59  S.  E. 
836;  Murphy  v.  Southern  P.  Co.  31  Xev.  141,  101  Pac.  322,  21  Ann.  Cas.  502; 
Western  Glass  Mfg.  Co.  v.  Schoeninger,  42  Colo.  362,  15  L.R.A.(N.S.)  668,  126 
Am.  St.  Rep.  165,  94  Pac.  342, — holding  it  within  discretion  of  trial  court  to 
order  examination;  Macon  &  B.  R.  Co.  v.  Ross,  133  Ga.  83,  65  S.  E.  146,  hold- 
ing court  has  power,  in  its  discretion,  to  compel  physical  examination:  Atlantic 
Coast  Line  R.  Co.  v.  Dees,  56  Fla.  135,  48  So.  28,  holding,  under  statute,  it  is 
•within  discretion  of  trial  court  to  compel  physical  examination;  Best  v.  Co- 
lumbia Street  R.  Light  &  P.  Co.  85  S.  C.  429,  67  S.  E.  1  (dissenting  opinion), 
on  power  of  circuit  court  to  require  plaintiff  in  personal  injury  action  to  sub- 
mit to  physical  examination  by  defendant's  physicians,  or  those  appointed  by 
court. 

Cited  in  notes  (15  L.R.A.  (N.S. )  667)  on  refusal  of  order  for  physical  exam- 
ination as  abuse  of  discretion;  (68  Am.  St.  Rep.  244,  247,  248,  249)  on  physical 
examination  of  parties  by  order  of  court. 

Distinguished  in  Austin  &  N.  W.  R.  Co.  v.  Cluck,  97  Tex.  176,  64  L.R.A.  494, 
104  Am.  St.  Rep.  863,  77  S.  W.  403,  1  A.  &  E.  Ann.  Cas.  261,  holding  in  absence 
of  statute  authorizing  it,  court  cannot  compel  physical  examination. 

Not  followed  in  Union  P.  R.  Co.  v.  Botsford,  141  U.  S.  255,  35  L.  ed.  739,  11 
Sup.  Ct.  Rep.  1000,  denying  power  of  United  States  court  to  order  physical  ex- 
amination before  trial. 

Disapproved  in  May  v.  Northern  R.  R.  Co.  32  Mont.  527,  70  L.R.A.   113,  81 
Pac.  328,  4  A.  &  E.  Ann.  Cas.  605,  holding  court  cannot  compel  physical  exami- 
nation. 
Discretionary   power   of   courts. 

Cited  in  Western  &  A.  R.  Co.  v.  Denmead,  83  Ga.  356,  9  S.  E.  683,  holding  court 
may,  upon  sufficient  reasons,  compel  presence  of  female  witness  in  court. 

Cited  in  note  (41  Am.  St.  Rep.  394)  on  power  to  compel  party  to  produce  boxes 
and  papers  as  evidence  on  examination  of  adversary. 

3  L.  R.  A.  809,  STRATTON  v.  CURRIER,  81  Me.  497,  17  Atl.  579. 
Floatable   streams. 

Cited  in  People  ex  rel.  Deneen  v.  Economy  Light  &  P.  Co.  241  111.  326,  89  X.  E. 
760,  holding  navigability  of  stream  determined  with  reference  to  natural  condi- 
tion. 


589  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  822 

Cited  in  note   (22  L.R.A.  (X.S.)   547,  on  rights  and  duties  between  those  main- 
taining dam  and  those  using  floatable  stream. 
—  It  h-.li !-.    of   log:   owners. 

Cited  in  Mullen  v.  Penobscot  Log-Driving  Co.  90  Me.  569,  38  Atl.  557,  holding 
log  owner  has,  at  common  law,  right  to  only  natural  flow. 

Cited  in  notes  (41  L.  R.  A.  377)  on  right  to  use  stream  for  floating  logs; 
(5  L.  R.  A.  393)  on  obstruction  of  navigable  stream. 

3  L.  R.  A.  812,  MEREDITH  v.  SCALLION,  51  Ark.  361,  11  S.  W.  516. 
Execution    sale   unaffected    by    irregularity   of   process. 

Cited  in  Stotts  v.  Brookfield,  55  Ark.  310,  18  S.  W.  179,  holding  title  of  pur- 
chaser upon  execution  not  impaired  by  irregularity  in  issuance. 

Cited  in  note   (21  L.  R.  A.  43)   on  how  far  purchaser  at  execution  or  judicial 
sale  protected  as  bona  fide  purchaser. 
Juristliction   of   probate   court. 

Cited  in  Hampton  v.  Cook,  64  Ark.  355,  62  Am.  Ut.  Rep.  194,  42  S.  W.  535, 
holding  payment  of  judgment  recovered  in  decedent's  lifetime  enforceable  only  in 
probate  court;  Brown  v.  Xelms,  86  Ark.  390,  112  S.  W.  373,  holding  probate  court 
has  exclusive  jurisdiction  to  enforce  claims  against  estate. 

Cited  in  footnote  to  Re  Andrews,  17  L.  R.  A.  297,  which  holds  jurisdiction  of 
court  to  elect  for  mentally  incompetent  widow  to  take  against  husband's  will,  not 
abrogated  by  statute. 

3  L.  R.  A.  816,  PENNINGTON  v.  PENNINGTON,  70  Md.  418,  17  Atl.  329. 

Construction  of  conditions  in  wills. 

Cited  in  Wahl  v.  Brewer,  80  Md.  243,  30  Atl.  654,  holding  question  whether 
remainders  are  vested  will  not  be  determined  during  life  of  life  tenant;  Ellicott  v. 
Ellicott,  90  Md.  331,  48  L.  R.  A.  63,  45  Atl.  183,  and  Re  Stickney,  85  Md.  103, 
35  L.  R.  A.  696,  60  Am.  St.  Rep.  308,  36  Atl.  654,  holding  courts  averse  to  con- 
struing conditions  to  be  precedent  so  as  to  defeat  vesting  of  estate;  Ege  v.  Hering, 
108  Md.  416,  70  Atl.  221,  holding  on  devise  on  certain  condition  or  if  devisee 
declined  to  accept  to  another  on  same  condition,  and  if  neither  accepted,  then 
property  to  be  sold,  gifts  are  preceding  limitations  and  not  conditions  precedent, 
and  failure  to  take  effect  did  not  render  inoperative  provisions  to  sell. 

Cited  in  footnotes  to.  Green  v.  Grant,  18  L.  R.  A.  381,  which  holds  woman's 
issue  without  vested  interest  in  land  devised  to  her  for  life,  with  direction  to 
convey  to  such  issue  as  she  shall  appoint;  Hertz  v.  Abrahams,  50  L.  R.  A.  361, 
which  holds  estate  tail  created  by  devise  to  woman  for  separate  use,  with  re- 
mainder to  another  if  she  "has  no  issue";  Gannon  v.  Albright,  67  L.R.A.  97,  which 
holds  devise  to  designated  persons  and  "their  heirs  and  assigns  forever,"  not  cut 
down  to  fee  tail  by  subsequent  declaration  that  the  share  of  one  dying  without 
issue  should  go  over  to  others. 

Cited  in  notes  (9  L.  R.  A.  211)  on  vested  and  contingent  remainders  distin- 
guished; (9  L.  R,  A.  214)  on  vested  remainders;  (9  L.  R.  A.  215)  on  con- 
tingent remainders:  (29  L.R.A.(N.S-)  1163)  on  rule  in  Shelley's  case;  (10 
Eng.  Rul.  C'as.  758)  on  creation  of  estate  tail  by  gift  to  "heirs  of  the  body"  fol- 
lowing gift  of  same  subject  to  the  praepositus. 

3  L.  R.  A.  822,  SMYTHE  v.  SPRAGUE,  149  Mass.  310,  21  N.  E.  383. 
Validity    of    unrecorded    deeds    and    conveyances. 

Cited  in  Anthony  v.  New  York,  P.  &  B.  R,  Co.  162  Mass.  61,  37  N.  E.  780, 
holding  unrecorded  lease  to  plaintiff  sufficient  title  in  action  for  damages  to 


3  L.R.A.  822]  L.  R.  A.  CASES  AS  AUTHORITIES.  590 

property;  Edwards  v.  Barnes,  167  Mass.  209,  45  N.  E.  351,  holding  land  appar- 
ently, but  not  actually,  OAvned  by  deceased  debtor  cannot  be  taken  by  nonattach- 
ment' creditors;  Newbert  v.  Fletcher,  84  Me.  413,  24  Atl.  889,  holding  assignee  has 
no  greater  right  against  mortgagee  than  his  assignor  in  insolvency  could  have 
asserted;  Valley  Lumber  Co.  v.  Hogan,  85  Wis.  374,  55  N.  W.  415,  holding  gen- 
eral assignee  party  to  set  aside  unrecorded  conveyance  of  assignor,  although 
fraudulent  as  to  only  part  of  creditors;  Thompson  v.  Esty,  69  N.  H.  76,  45  Atl. 
566,  upholding  bona  fide  sale  against  assignee  in  insolvency,  although  possession 
-was  retained  by  vendor;  Re  Loveland,  84  C.  C.  A.  72,  155  Fed.  841,  holding  in- 
crease of  mortgage  debt  valid  as  against  trustee  in  bankruptcy  of  mortgagor; 
Re  Merrow,  131  Fed.  9,94,  on  right  of  assignee  under  state  insolvency  law  to 
property  conveyed  before  assignment. 

Distinguished  in  Pratt  v.  Mackey,  172  Mass.  386,  52  N.  E.  534,  holding  mort- 
gage not   recorded  within  time   required  by  statute  void   from  its   inception  if 
avoided  by  assignee  of  mortgagor. 
Bona    fl«le    purchaser    for    value. 

Cited  in  footnotes  to  Odom  v.  Riddick,  7  L.  R.  A.  118,  which  holds  bona  fide 
purchaser's  title  not  impaired  by  grantor's  undeclared  lunacy;  Van  Raalte  v. 
Harrington,  11  L.  R.  A.  424,  which  holds  relationship  of  preferred  creditors  fact 
for  consideration  on  question  of  fraud;  Tillman  v.  Heller,  11  L.  R.  A.  628,  which 
holds  purchaser  without  notice  of  seller's  fraud,  protected  only  to  extent  of  pay- 
ment. 

Cited  in  note  (10  L.  R.  A.  677)  on  protection  of  bona  fide  holder  of  commercial 
paper. 

3  L.  R.  A.  824,  FAGUNDES  v.  CENTRAL  P.  R.  CO.  79  Cal.  97,  21  Pac.  437. 
Master's    liability    for    incompetency    of    servant    causing-    injury. 

Cited  in  Hardesty  v.  Largey  Lumber  Co.  34  Mont.  164,  86  Pac.  29,  on  rights 
of  injured  servant  under  statute. 

Cited  in  note   (25  L.  R.  A.  712)    on  liability  of  master  for  injuries  caused  to 
servant  through  incompctency  of  fellow  servant. 
"Who  are  fellow  servants. 

Cited  in  Grattis  v.  Kansas  City,  P.  &  G.  R.  Co.  153  Mo.  406,  48  L.  R.  A.  408, 
77  Am.  St.  Rep.  721,  55  S.  W.  108,  holding  fireman  fellow  servant  of  engineer 
and  conductor  on  same  train;  Mann  v.  O'SulIivan,  126  Gal.  65,  77  Am.  St.  Rep. 
149,  58  Pac.  375,  holding  that  carpenter  employed  to  repair  elevator  shaft  and 
operator  of  elevator  are  fellow  servants  engaged  "in  the  same  general  business;" 
Congrave  v.  Southern  P.  R.  Co.  88  Cal.  366,  26  Pac.  175,  holding  brakeman  and 
conductor  on  same  train  fellow  servants;  Daves  v.  Southern  P.  Co.  98  Cal.  23, 
35  Am.  St.  Rep.  133,  32  Pac.  708,  denying  master's  liability  for  section  foreman's 
failure  to  keep  switch  open,  thereby  injuring  sectionhand;  Stevens  v.  San  Fran- 
cisco &  N.  P.  R.  Co.  100  Cal.  567,  35  Pac.  165,  holding  fireman  and  oiler  and 
'engineer  of  ferryboat  fellow  servants,  though  latter  has  power  to  hire  and  dis- 
charge; Livingston  v.  Kodiak  Packing  Co.  103  Cal.  264,  37  Pac.  149,  holding  mate 
and  servant  of  steward,  fellow  servants;  Sartin  v.  Oregon  Short  Line  R.  Co. 
27  Utah,  454,  76  Pac.  219,  holding  member  of  railroad  fence  gang  fellow  servant 
of  foreman  and  could  not  recover  for  injuries  caused  by  negligence  of  latter  in 
operation  of  handcar,  Atchison,  T.  &  S.  F.  R.  Co.  v.  Martin,  7  N.  M.  169,  34 
Pac.  536,  holding  section  hand  on  handcar  going  to  place  of  work  to  repair 
railway  and  conductor  and  engineer  of  worktrain  also  engaged  in  repairing  rail- 
way follow  servants;  Ell  v.  Northern  P.  R.  Co.  1  N.  D.  349,  12  L.R.A.  101,  26 
Am.  St.  Rep.  621,  48  N.  W.  222,  holding  foreman  of  gang  is  fellow  servant  to 


591  L.  R.  A.  GASES  AS  AUTHORITIES.  [3  L.R.A.  820 

'Member  where  his  negligent  act  causing  injury  is  one  which  pertains  to  duties  of 
mere  servant,  engaged   in   same  general  business. 

Cited   in   notes    (46   L.   R.   A.   3GO)    on   when   conductor   deemed   coservant   of 
other  railway  employees;   (5  L.  R.  A.  735)  on  who  are  fellow  servants;    (50  L.  R. 
A.  433,  435)  on  what  servants  deemed  in  same  common  employment. 
Propriety  of  granting:  motion   for    nonsuit. 

Cited  in  Bohn  v.  Pacific  Electric  R.  Co.  5  Cal.  App.  624,  91  Pac.  115,  holding 
court  has  power  to  direct  nonsuit  at  close  of  evidence  where  it  would  be  obliged 
to  set  aside  verdict  for  plaintiff;  Re  Morey,  147  Cal.  507,  82  Pac.  57,  holding  it 
in  discretion  of  trial  court  and  not  error  to  grant  motion  for  nensuit  made  at 
close  of  evidence,  where  it  would  be  duty  of  court  to  set  aside  verdict  if  jury 
found  for  plaintiff. 
Determination  of  negrlig-ence. 

Cited  in  Brounton  v.  Southern  P.  R.  Co.  2  Cal.  App.  177,  83  Pac.  265,  holding 
where  all  facts  in  relation  to  loss  of  goods  by  fire  at  depot  and  cause  thereof, 
und  acts  done  by  defendants'  servants  to  extinguish  fire  and  preserve  goods,  are 
undisputed,  question  of  negligence  one  of  law  for  court. 

3  L.  R.  A.  826,  CENTRAL  LAND  CO  v.  LAIDLEY,  32  W.  Va.  134,  25  Am.  St. 
Rep.  797,  9  S.  E.  61. 

Report  of  decision  on  appeal  from  decision  of  Federal  court  in  subsequent  action 
in  Huntington  v.  Laidley,  176  U.  S.  670,  44  L.  ed.  631,  20  Sup.  Ct.  Rep.  526. 
Aotice   of  defective  conveyance. 

Cited  in  Guffy  v.  Hukill,  34  W.  Va.  61,  8  L.  R.  A.  765,  26  Am.  St.  Rep.  901, 
11  S.  E.  754,  holding  that  lessee  has  no  rights  under  forfeited  lease  of  which  sub- 
sequent lessee  could  have  notice;  Harding  v.  Jennings,  68  W.  Va.  358,  70  S.  E.  1 ; 
Reel  v.  Reel,  59  W.  Va.  110,  52  S.  E.  1023, — holding  subsequent  purchaser  not 
charged  with  notice  of  rights  attempted  to  be  conveyed  to  another  in  void  deed. 
Kule  as  to  refunding?  of  consideration. 

Cited  in  Minis  v.  Machlin,  53  S.  C.  6,  30  S.  E.  585,  holding  married  woman 
need  not  return  purchase  money  before  suing  to  recover  land  conveyed  by  her 
invalid  release. 
J,aml    conveyed    to    married    wniiiMii    prior    to    1868. 

Cited  in  Pickens  v.  Kniseley,  36  W.  Va.  800,  15  S.  E.  997,  holding  land  conveyed 
to  married  woman  in  1866  not  her  separate  estate,  without  so  specifying;  Arnold 
v.  Bunnell,  42  W.  Va.  483,  26  S.  E.  359,  holding  deed  in  fee  by  husband  and  wife 
conveyed  husband's  life  estate  only,  when  wife's  acknowledgment  was  defective; 
Xuttall  v.  McBey,  63  W.  Va.  383,  60  S.  E.  251,  holding  certificate  of  acknowl- 
edgment made  in  1868  by  married  woman,  failing  to  state  that  on  private  ex- 
amination she  acknowledged  instrument,  renders  deed  void. 

Statute  of  limitations. 

Cited  in  Arnold  v.  Bunnell,  42  W.  Va.  483,  26  S.  E.  359,  holding  right  of 
grantee  of  fee  to  possession  as  against  grantee  of  estate  by  curtesy  does  not  begin 
until  husband's  death;  Merritt  v.  Hughes,  36  W.  Va.  361,  15  S.  E.  56,  holding, 
where  husband  conveys  life  estate,  statute  does  not  run  against  wife's  reversion 
until  life  estate  ends;  McXeeley  v.  South  Penn  Oil  Co.  52  W.  Va.  626,  62  L.  R. 
A.  569,  44  S.  E.  508,  holding  that  limitations  begin  to  run  at  death  of  husband 
who  conveyed  joint  interest,  and,  after  wife's  death,  conveyed  balance. 

Cited  in  note   (10  L.R.A.  (X.S.)  89)   on  effect  of  husband's  life  estate  upon  ad- 
verse possession  against  wife. 
Acknowledgment. 

Cited  in  Morgan  v.  Snodgrass,  49  W.  Va.  392,  38  S.  E.  695,  holding  that  as 


3  L.R.A.  826]  L.  R.  A.  CASES  AS  AUTHORITIES.  592. 

general  rule  equity  will  not  aid  to  cure  defect  iu  married  woman's  acknowledg- 
ments; Richards  v.  Mathews,  68  W.  Va.  94,  69  S.  E.  644,  holding  that  under  deed 
from  husband  and  wife,  with  acknowledgment  defective  as  to  wife,  grantee  takea 
estate  for  life  of  husband. 

Cited   in   notes    (11    L.   R.   A.    193)    on   acknowledgment   of   deed   by   married 
woman;   (10  L.  R.  A.  857)  on  acknowledgment  of  deed  by  justice  of  peace. 
Estoppel. 

Cited  in  footnotes  to  Wilder  v.  Wilder,  9  L.R.A.  97,  which  holds  married  woman 
estopped  to  claim  vendors  lien  by  representing  that  one  loaning  to  vendee  should 
have  first  mortgage;  Grice  v.  Woodworth,  69  L.R.A.  584,  which  holds  married 
woman  estopped  to  set  up  invalidity  of  contract  by  her  husband  and  herself  to 
sell  homestead  for  failure  to  comply  with  certain  conditions  after  purchaser  had 
paid  purchase  price,  taken  possession,  and  made  valuable  improvements. 

3  L.  R.  A.  831,  VILISKI  v.  MINNEAPOLIS,  40  Minn.  304,  41  N.  W.  1050. 
Rig-hts   of  abutting:   owners  to  soil   in   high-way. 

Cited  in  Andrews  v.  Youmans,  78  WTis.  58,  47  N.  W.  304,  holding  public  au- 
thorities with  easement  may  only  remove  trees  essential  to  fit  street  for  public- 
travel ;  District  of  Columbia  v.  Robinson,  14  App.  D.  C.  547,  holding  public  au- 
thorities with  easement  cannot  remove  gravel  from  one  highway  to  improve 
another;  Haas  v.  Evansville,  20  Ind.  App.  486,  50  N.  E.  46,  holding  city  can 
remove  natural  soil  from  one  street  to  another  only  when  improvement  of  the 
two  streets  is  included  in  general  plan;  Anderson  v.  Bement,  13  Ind.  App.  251, 
41  N.  E.  547,  holding  gravel  cannot  be  taken  by  public  from  highway  at  one 
place  to  improve  highway  at  another  remote  place;  Glencoe  v.  Reed,  93  Minn. 
519,  67  L.R.A.  901,  101  N.  W.  956,  2  A.  &  E.  Ann.  Cas.  594,  holding  that  adjoin- 
ing owner  may  remove  gravel  from  highway,  where  it  is  not  needed  for  im- 
proving the  highway  and  its  removal  causes  no  injury  to  the  road  bed. 

Cited  in  footnote  to  Theobold  v.  Louisville,  X.  0.  &  T.  R.  Co.  4  L.  R.  A.  735, 
which  holds  steam  railroad  cannot  be  operated  in  street  without  condemnation, 
or  consent  of  abutting  owner. 

Cited  in  notes  (4  L.  R.  A.  786)  on  right  of  eminent  domain;  (9  L.  R.  A.  551) 
on  form  of  dedication  of  land  to  public  use. 

3  L.  R.  A.  836,  DREISBACH  v.  SERFASS,  126  Pa.  32,  17  Atl.  513. 
Conveyance    in    consideration    of    services    of    grrnntee. 

Cited  in  Ringrose  v.  Ringrose,  170  Pa.  608,  33  Atl.  129,  holding  deed  in  con- 
sideration of  support  creates  charge  upon  land,  following  it  in  hands  of  subse- 
quent purchasers;  Fritz  v.  Menges,  179  Pa.  131,  36  Atl.  213,  holding  deed  in. 
consideration  of  support  conveys  defeasible  fee;  Whitmore  v.  Hay.  So  Wis.  249, 
39  Am.  St.  Rep.  838,  55  N.  W.  708,  holding  deed  to  son  in  consideration  of  par- 
ents' support,  void  as  conveyance  of  homestead,  valid  as  against  other  heirs; 
Anspach  v.  Lightner,  31  Pa.  Super.  Ct.  220,  holding  conveyance  of  real  estate 
in  fee  simple,  reserving  property  to  grantor  as  long  as  she  lived,  but  containing 
no  reservation  in  habendum,  the  object  of  grantor  being  to  compensate  grantee 
fo'r  services  performed  or  to  be  performed,  is  deed  and  not  will;  Rice  v.  Rice, 
23  Lane.  L.  Rev.  212;  Rice  v.  Rice,  24  Lane.  L.  Rev.  90, — holding  that  convey- 
ance of  fee  provided  that  grantee  will  support  grantor  for  life  creates  estate 
upon  condition  and  burden  is  on  grantee  of  proving  performance ;  Helms  v.. 
Helms,  135  N.  C.  174,  47  S.  E.  415  (dissenting  opinion),  on  necessity  for  per- 
formance to  recovery  by  grantee;  Helms  v.  Helms,  137  N.  C.  212,  49  S.  E.  110 
(dissenting  opinion),  on  necessity  for  performance  by  grantee  to  maintain  ac- 
tion for  possession. 


593  L.  R.  A.  CASES  AS  AUTHORITIES.  3  L.R.^.  841? 

Cited  in  notes  (49  Am.  St.  Rep.  220)   on  conveyance  to  take  effect  after  grant- 
ors' death;    (130  Am.  St.  Rep.  1052,  1055,  1056)   on  conveyances  in  consideration, 
of  support. 
Intent   to  pass  estate. 

Cited  in  Lemon  v.  Graham,  131  Pa.  453,  6  L.  R.  A.  664,  19  Atl.  48,  holding 
effect  of  informal  instrument  transferring  interest  in  real  estate  depends  upon- 
intent;  Davis  v.  Martin,  8  Pa.  Super.  Ct.  138,  holding  that  deeds  given  in  con- 
sideration of  support  will  not  pass  estate  if  intention  appears  otherwise. 

Cited  note    (14  Eng.  Rul.  Cas.  789)    on  determination  of  intention  by  consid- 
eration of  habendum  clause. 
What  constitutes  a  trill. 

Cited  in  Weaver  v.  Danehower,  27  Montg.  Co.  L.  Rep.  115,  holding  that  deed 
providing  that  it  is  not  to  be  delivered  until  aeath  of  one  of  grantors,  is  will. 

Cited  in  footnote  to  Ferris  v.  Xeville,  54  L.  R.  A.  464,  which  holds  sufficient  as 
will,  paper  executed  as  such,  stating  that  it  is  good  to  specified  person  for 
specified  amount  to  be  collected  from  writer's  estate. 

Cited  in  notes  (12  L.R.A.  667)  on  creation  or  declaration  of  trust;   (89  Am.  St.. 
Rep.  487,  499)    on  what  constitutes  a  testamentary  writing. 
Performance  of  services  by  grantee. 

Cited  in  Ringrose  v.  Ringrose,  170  Pa.  608,  33  Atl.  129.  holding  grantee  of 
land  in  consideration  of  support  cannot  retain  it  without  performing  the  service; 
Davis  v.  Martin,  8  Pa.  Super.  Ct.  138,  holding  burden  upon  grantee  of  showing 
his  performance  of  conditions  of  deed;  Conlan  v.  Conlan,  20  Pa.  Super.  Ct.  50,. 
holding  grantee  who  had  performed  conditions  entitled  to  possession. 

Cited  in  footnotes  to  Cook  v.  Bartholomew,  13  L.  R.  A.  452,  which  holds  a* 
mortgage,  deed  conditioned  on  grantor  supporting  grantee  for  life;  Glocke  v. 
Glocke,  57  L.  R.  A.  458,  which  holds  land  conveyed  by  aged  parent  to  son  prom- 
ising to  support  him  reverts  to  former  on  breach  of  agreement. 

3  L.  R.  A.  839,  FREILER  v.  KEAR,  126  Pa.  470,  17  Atl.  668,  906. 

Report  of  second  appeal  in  133  Pa.  41,  19  Atl.  310. 
Married    woman's    rights    with    respect    to    separate    estate. 

Cited  in  Meade  v.  Clarke,  159  Pa.  164,  23  L.  R.  A.  480,  39  Am.  St.  Rep.  669r 
28  Atl.  214,  holding  creditors  of  married  woman  have  no  lien  on  land  conveyed  by 
her  before,  but  with  acknowledgment  of  deed  after,  judgment. 

3  L.  R.  A.  841,  PORT  ROYAL  MIX.  CO.  v.  HAGOOD,  30  S.  C.  519,  9  S.  E.  686. 
Mandamus. 

Cited  in  State  ex  rel.  School  Dist.  v.  Rice,  32  S.  C.  100,  10  S.  E.  833,  holding 
that  mandamus  will  not  issue  where  legal  right  doubtful,  or  duty  discretionary : 
Harrison  v.  People,  97  111.  App.  434  (dissenting  opinion),  majority  upholding 
mandamus  to  compel  mayor  to  issue  license,  although  power  was  discretionary; 
State  ex  rel.  Hunter  v.  Winterrood,  174  Ind.  597,  30  L.R.A. (N.S.)  888,  91  X. 
E.  956,  holding  that  petitioner  for  mandamus  cannot  require  court  to  declare 
statute  void  as  condition  precedent  to  issuance  of  writ ;  State  ex  rel.  Guenther- 
v.  Charleston  Light  &  Water  Co.  68  S.  C.  552,  47  S.  E.  979,  holding  mandamus 
will  not  lie  to  compel  removal  of  dam  as  obstruction  in  navigable  stream,  peti- 
tion showing  no  special  injury. 

Cited   in  notes    (16   L.R.A.  (X.S.)    269)    on   right  of  relator  in  mandamus  to 
attack   constitutionality    of    statute    relied    upon;     (22    Am.   St.    Rep.    563)    on 
necessity  of  clearly  establishing  right  to  mandamus. 
"  L.R.A.  Au.  Vol.  I.— 38. 


3  L.R.A.  841]  L.  R.  A.  CASES  AS  AUTHORITIES.  594 

Cited  in  footnote  to  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188,  which 
denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum. 

Distinguished  in  Ames  v.  People,  26  Colo.  90,  56  Pac.  656,  considering  on  man- 
damus by  ministerial  officer  constitutionality  of  statute  affecting  rights  of  third 
persons  not  parties  who  had  tacitly  consented  to  that  mode  of  presenting  the 
question;  Moore  v.  Napier,  64  S.  C.  566,  42  S.  E.  997,  denying  mandamus  to 
compel  medical  examiners  to  issue  license  without  examination. 

Limited  in  State  ex  rel.  Fooshe  v.  Burley,  80  S.  C.  131,  16  L.R.A.(X.S.)  271, 
61  S.  C.  255,  holding  where  mandamus  seeks  to  compel  public  officer  to  perform 
duty  prescribed  by  statute,  he  may  contest  validity  of  statute  whose  nature  of 
office  is  such  as  to  require  him  to  raise  question  of  constitutionality,  or  his  per- 
sonal interest  entitles  him  to  do  so. 
Equal  privileges  and  immunities. 

Cited  in  note    (14  L.  R.   A.  582)    on   equal   privileges   and  immunities  as  to 
property   rights. 
Delegation    of   legislative    power. 

Cited  in  Johnson  v.  Rock  Hill,  57  S.  C.  379,  35  S.  E.  568,  holding  act  giving 
city  power  to  grant  waterworks  franchise  constitutional;  State  v.  Moorehead, 
42  S.  C.  219,  26  L.  R.  A.  589,  46  Am.  St.  Rep.  719,  20  S.  E.  544  (dissenting 
opinion),  majority  holding  act  providing  that  commissioners  fix  certain  li- 
cense fees  constitutional;  Vesta  Mills  v.  Charleston,  60  S.  C.  8,  38  S.  E. 
226,  holding  legislature  cannot  authorize  municipality  to  legislate  so  as  to  af- 
fect jurisdiction  of  courts;  Blue  v.  Beach,  155  Ind.  133,  50  L-.  R.  A.  70,  80  Am. 
St.  Rep.  195,  56  N.  E.  89,  upholding  constitutionality  of  act  allowing  health 
board  to  require  vaccination  as  condition  of  attending  school;  Dastervignes  v. 
United  States,  58  C.  C.  A.  350,  122  Fed.  34,  sustaining  statute  authorizing 
Secretary  of  Interior  to  regulate  forest  reservations;  State  v.  Briggs,  45  Or.  371, 
77  Pac.  750,  2  A.  &  E.  Ann.  Cas.  424,  holding  law  vesting  authority  in  board  of 
examiners  to  prescribe  qualifications  of  barber  not  delegation  of  legislative  pow- 
<-r;  Jones  Bros.  v.  Southern  R.  Co.  76  S.  C.  71,  56  S.  E.  666,  holding  giving  rail- 
road commission  power  to  prescribe  rates  for  storage  and  fix  time  after  recep- 
tion of  freight  at  destination  when  charges  for  storage  shall  begin,  not  delega- 
tion of  legislative  powers;  Kirk  v.  Board  of  Health  (Kirk  v.  Wyman)  83 
S.  C.  381,  23  L.R.A.(N.S.)  1192,  65  S.  E.  387,  upholding  delegation  by  legisla- 
ture of  power  to  boards  of  health  to  make  rules  and  regulations  for  preservation 
of  public  health;  State  v.  Atlantic  Coast  Line  R.  Co.  56  Fla.  625,  32  L.R.A. 
(X.S.)  652,  47  So.  969,  upholding  statute  vesting  authority  in  railroad  com- 
mission to  make  reasonable  rules  for  intrastate  transportation,  for  violation  of 
which  rules  a  penalty  prescribed  by  statute  may  be  incurred;  State  Racing  Com- 
mission v.  Latonia  Agri.  Asso.  136  Ky.  189,  25  L.R.A.(N.S.)  912,  123  S.  W. 
681,  upholding  law  establishing  racing  commission  to  regulate  racing  of  running 
horses  and  breeding  of  thoroughbred  horses,  and  granting  power  to  issue  license 
to  hold  races ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  State,  56  Tex.  Civ.  App.  363,  120  S.  W. 
1028,  holding  that  legislature  can  authorize  railroad  commission  to  make  rule  re- 
quiring railroad  to  furnish  cars  for  transportation  beyond  line. 
Estoppel  to  raise  constitutionality  of  statute. 

Cited  in  Ross  v.  Lipscomb,  83  S.  C.  149,  65  S.  E.  451,  holding  party  who  in- 
vokes provisions  of  statute  as  ground  of  relief  cannot  raise  question  as  to  its 
constitutionality. 


595  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  854 

3  L.  R.  A.  845,  RAINWATER  v.  HARRIS,  51   Ark.  401,   11   S.  W.  583. 

3  L.  R.  A.  847,  DOUGHERTY  v.  ROGERS,  119  Ind.  254,  20  N.  E.  779. 
\\  IM-II   extrinsic  evidence  admissible. 

Cited  in  Dowden  v.  Wood.  124  Ind.  236,  24  N.  E.  1042,  holding  parol  evidence 
admissible  to  show  that  money  represented  by  notes  was  not  a  loan  but  a 
gift;  West  v.  Rassman,  135  Ind.  291,  34  N.  E.  991,  holding  surrounding  cir- 
cumstances may  be  looked  into  to  determine  the  class  to  which  distribution 
in  will  should  be  made;  Jennings  v.  Sturaevant,  140'  Ind.  646,  40  N.  E.  61,  hold- 
ing evidence  admissible  in  construction  of  will ;  Robbins  v.  Swain,  7  Ind.  App. 
491,  34  N.  E.  670,  admitting  extrinsic  evidence  to  explain  testator's  intention; 
Whiteman  v.  Whiteman,  152  Ind.  274,  53  N.  E.  225,  admitting  parol  evidence 
of  circumstances  surrounding  will  in  order  to  correct  date  erroneously  given; 
Cravens  v.  Eagle  Cotton  Mills  Co.  120  Ind.  11,  21  NT.  E.  981,  holding  extrinsic 
evidence  might  be  given  to  explain  collateral  matters  referred  to  in  sub- 
scription to  stock;  Dennis  v.  Holsapple,  148  Ind.  300,  46  L.  R.  A.  170,  62 
Am.  St.  Rep.  526,  47  N.  E.  631,  holding  extrinsic  evidence  can  be  given  to  de- 
termine devisee;  Sturgis  v.  Work,  122  Ind.  136,  17  Am.  St.  Rep.  349,  22  N.  E. 
996,  holding  extrinsic  evidence  not  admissible  to  show  that  description  of 
land  devised  is  erroneous;  Chaplin  v.  Leapley.  35  Ind.  App.  520.  74  N.  E.  546, 
holding  parol  evidence  admissible  where  question  of  fact  arises  relative  to  what 
testator  lias  actually  done  in  way  of  providing  for  wife  in  lieu  of  her  right  in 
his  lands  or  in  lieu  of  her.  interest  in  any  property  devised  by  him;  Darnell  v. 
Lafferty,  113  Mo.  App.  303,  88  S.  W.  784,  holding  parol  evidence  admissible  to 
elucidate  writing  Avhen  language  employed  is  ambiguous. 

Cited   in  notes    (3   L.   R.   A.   805)    on   parol   evidence   to  explain   latent   ambi- 
guity;   (16  L.  R.  A.  322)   on  parol  evidence  of  mistake  in  description  of  land  de- 
vised;   (6  L.R.A.(N.S.)    943,  953,   963,  964)    on  correction   of  misdescription  of 
land  in  will;    (15  Am.  St.  Rep.  715)   on  parol  evidence  as  to  writings. 
Construction    of    instruments. 

Cited  in  Mills  v.  Franklin,  128  Ind.  446,  28  N.  E.  60,  construing  will  to 
pass  fee;  Boling  v.  Miller,  133  Ind.  604,  33  N.  E.  354,  construing  will  to 
vest  fee  subject  to  be  devested;  Bailey  v.  Brown,  19  R.  I.  682,  36  Atl.  581,  con- 
struing word  "survive;"  Slaughter  v.  Slaughter,  21  Ind.  App.  643,  52  N.  I". 
Ofl4.  holding  receipt  in  full  of  claims  against  father's  estate  upon  death,  ad- 
vancement, carrying  interest  as  agreed;  Pate  v.  Bushong,  161  Ind.  539,  63  L. 
R.  A.  507.  69  X.  E.  291,  holding  mistake  as  to  position  of  land  will  not  defeat 
devise,  when  size  and  characteristics  of  tracts  given;  Lee  v.  Lee.  45  Ind.  App. 
048,  91  X.  E.  507,  holding  that  intention  controlling  is  not  that  which  existed 
in  testator's  mind  when  will  was  executed,  but  that  embodied  in  language  of 
will  itself. 

Cited  in  notes  (8  L.R.A.  740,  749)  on  construction  of  will;  (11  L.R.A.  (X.S.) 
68)  on  bequest  of  stocks,  bonds,  or  notes  as  general  or  specific;  (38  L.R.A. (X.S.) 
588,  592)  on  gift  by  testator  as  ademption  of  general  legacy  to  donee;  (21  Am. 
St.  Rep.  296)  on  essentials  to  advancement. 

3  L.  R.  A.  854,  GREGORY  v.  NEW  YORK,  113  N.  Y.  416,  21  N.  E.  119. 
Suspension    of    public    officials. 

Cited  in  Bringgold  v.  Spokane,  27  Wash.  207,  67  Pac.  612,  holding  police  offi- 
cer cannot  be  suspended  by  board  pending  charges ;  Meyers  v.  New  York,  69 
Hun,  293.  23  X.  V.  Supp.  484,  prior  appeal  46  N.  Y.  S.  R.  130,  18  X.  Y.  Supp. 
304,  holding  inspector  of  regulating  and  grading  city  streets  an  employee  mere- 


3  L.R.A.  854]  L.  R.  A.  CASES  AS  AUTHORITIES.  596. 

ly  and  liable  to  removal  as  such;  Emmitt  v.  New  York,  128  N.  Y.  119,  28  N.  E. 
19,  holding  inspector  of  masonry  on  New  York  aqueduct  might  recover  sal- 
ary during  suspension;  Wardlaw  v.  New  York,  137  N.  Y.  200,  33  N.  E.  140,. 
holding  jury  should  determine  whether  suspended  public  officer  waived  rights 
to  salary  by  accepting  other  employment;  Mullen  v.  New  York,  34  N.  Y.  S.  R. 
913,  12  N.  Y.  Supp.  269,  holding  aqueduct  commissioners  could  not  suspend  in- 
spector of  masonry;  People  ex  rel.  Stett'an  v.  Murray,  2  App.  Div.  360,  37 
N.  Y.  Supp.  848,  holding  excise  inspector,  asked  to  resign  or  stand  discharged, 
was  discharged;  People  ex  rel.  Lion  v.  Murray,  5  App.  Div.  289,  39  N.  Y.  Supp. 
227,  holding  excise  inspector  removable  at  pleasure  of  board;  Phelan  v.  New 
York,  38  N.  Y.  S.  R.  806,  14  N.  Y.  Supp.  785,  holding  superintending  inspector 
of  masonry  on  public  aqueduct  estopped  by  agreement  that  payment  should 
cease  during  suspension;  Morley  v.  New  York,  35  N.  Y.  S.  R.  263,  12  N.  Y. 
Supp.  609,  holding  assistant  engineer  in  department  of  public  works  cannot 
be  suspended;  Lethbridge  v.  New  York,  27  Jones  &  S.  494,  15  N.  Y.  Supp.  562, 
holding  clerk  in  department  of  public  works  cannot  be  suspended;  Wardlaw  v. 
New  York,  46  N.  Y.  S.  R.  862,  19  N.  Y.  Supp.  6,  holding  assistant  engineer  in 
department  of  public  works  cannot  be  suspended;  O'Hara  v.  New  York,  46: 
App.  Div.  521,  62  N.  Y.  Supp.  146,  holding  watchman  in  public  building,  a 
war  veteran,  cannot  be  removed  at  pleasure;  Sheehan  v.  New  York,  21  Misc. 
601,  48  N.  Y.  Supp.  142,  holding  park  laborer  not  officer  whose  compensation, 
continued  while  awaiting  employment;  Gillan  v.  Board  of  Regents,  88  Wis.  14, 
24  L.  R.  A.  338,  58  N.  W.  1042,  holding  teacher  in  normal  school,  removable 
at  pleasure  of  board  of  regents,  cannot  recover  for  salary  after  removal;  De- 
Canio  v.  New  York,  15  Misc.  41,  36  N.  Y.  Supp.  423,  holding  absence  of  aque- 
duct inspector  for  sickness,  but  who  continually  reported  for  duty,  did  not 
constitute  abandonment  of  work;  People  ex  rel.  Brennan  v.  Scannell,  62  App. 
Div.  255,  70  N.  Y.  Supp.  U83,  holding  civil  service  rule  regulating  removal  of 
employee  invalid;  Mack  v.  New  York,  37  Misc.  374,  75  N.  Y.  Supp.  809,  hold- 
ing that  supervising  engineer  of  village  sewer  system  cannot  recover  of  city 
for  work  after  annexation  where  it  never  recognized  his  contract  with  village; 
Ransom  v.  Boston,  192  Mass.  306,  78  N.  E.  481,  7  A.  &  E.  Ann.  Cas.  733,  holding 
veteran  employed  in  labor  service  of  city  may  on  wrongful  discharge  maintain 
action  to  recover  wages  for  work  subsequent  to  discharge;  Griner  v.  Thomas, 
101  Tex.  39,  104  S.  W.  1058,  16  A.  &  E.  Ann.  Cas.  944,  holding  removal  can 
only  be  in  mode  prescribed  by  constitution;  Sutliffe  v.  New  York,  132  App.  Div. 
834,  117  N.  Y.  Supp.  813,  holding  public  officer  entitled  to  salary  whether  he 
performs  service  or  not  where  salary  fixed  by  law  is  incident  of  office;  Lethbridge 
v.  New  York,  27  Jones  &  S.  487,  15  N.  Y.  Supp.  562,  holding  clerk  in  municipal 
department  appointed  under  civil  service  law  cannot  be  suspended  so  as  to  de- 
prive him  of  compensation;  Wardlaw  v.  New  York,  29  Jones  &  S.  175,  19  N.  Y. 
Supp.  6,  holding  city  surveyor,  whose  office  can  be  vacated  only  by  death,  resigna- 
tion or  removal,  cannot  be  suspended  without  pay;  Cull  v.  Wheltle,  114  Md.  89, 
78  Atl.  820,  holding  that  power  of  governor  to  suspend  police  commissioner 
cannot  be  implied  from  power  to  remove  for  cause  after  trial. 

Distinguished  in  Kelly  v.  New  York,  70  Hun,  209,  24  N.  Y.  Supp.  1,  hold- 
ing inspector  of  masonry,  dismissed  for  lack  of  work,  not  suspended;  Beach  v. 
New  York,  32  N.  Y.  S.  R.  940,  10  N.  Y.  Supp.  793,  holding  clerkship  meant 
to  be  abolished  although  word  "suspension''  used;  Fox  v.  New  York,  11  Misc. 
307,  32  N.  Y.  Supp.  257,  holding  it  for  jury  to  determine  whether  there 
really  was  suspension  of  inspector  of  masonry;  Donnell  v.  New  York,  68 
Hun,  56,  22  N.  Y.  Supp.  661,  holding  that  stenographer  suspended  from 
further  duty  is  removed;  State  ex  rel.  Douglas  v.  Megaarden,  85  Minn.  45,  89; 


597  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  850 

Am.  St.  Rep.  534,  88  N.  \V.  412,  holding  power  to  suspend  sheriff  pending  re- 
moval is  incidental  to  governor's  authority;  Cook  v.  New  York,  9  Misc.  338,  61 
N.  Y.  S.  R.  672,  30  N.  Y.  Supp.  404,  holding  that  prison  guard  relieved  from 
duty  was  discharged;  Lethbridge  v.  New  York,  133  N.  Y.  238,  30  N.  E.  975, 
denying  recovery  when  funds  appropriated  to  clerkship  without  fixed  salary, 
are  exhausted;  Re  Croker,  78  App.  Div.  191,  79  N.  Y.  Supp.  640,  sustaining 
power  of  fire  commissioner  to  relieve  chief  from  command  during  leave  of 
absence;  People  ex  rel.  Curren  v.  Cook,  117  App.  Div.  790,  102  N.  Y.  Supp.  1087, 
holding,  under  charter,  clerk  in  employ  of  board  of  education  who  was  subject 
to  removal  for  cause  and  suspension  during  trial  of  charges,  was  suspended  during 
trial  of  charges  on  which  he  was  subsequently  convicted;  People  ex  rel.  O'Brien 
v.  Butler,  120  App.  Div.  755,  105  N.  Y.  Supp.  631,  holding,  under  charter,  tene- 
ment house  commissioner  may  suspend  inspector  without  pay  pending  investiga- 
tion of  charges  against  him;  Glynn  v.  Oswego,  71  Misc.  595,  130  N.  Y.  Supp. 
860,  holding  that  fireman  may  be  suspended  indefinitely;  Maben  v.  Rosser,  24 
Okla.  604,  103  Pac.  674,  holding  that  court  may  suspend  district  judge  pending 
proceeding  for  his  removal. 
What  court  can  pass  on. 

Cited  in  Kantrowitz  v.  Levin,  14  Misc.  566,  35  N.  Y.  Supp.  1072,  holding 
court  authorized  to  determine  facts  by  asking  for  direction  of  verdict;  Ropes 
v.  Arnold,  81  Hun,  479,  30  N.  Y.  Supp.  997,  holding  party  consented  that  court 
should  pass  on  disputable  inference  of  fact;  Banker  v.  Knibloe,  69  Hun,  540, 
"23  N.  Y.  Supp.  1091,  holding  only  questions  reviewable  on  motion  for  new 
trial  are  those  raised  by  exception  on  trial. 
Employment  of  officials  for  term  of  years. 

Cited  in  Abrams  v.  Horton,  18  App.  Div.  210,  79  N.  Y.  S.  R.  889,  45  N.  Y. 
Supp.  887,  holding  county  superintendents  of  poor  cannot  employ  keeper  of 
almshouse  for  three  years. 

3   L.   R.   A.   857,   HAIGHT  v.   HALL,   74   Wis.    152,    17    Am.   St.   Rep.    122,   42 

N.  W.   109. 
Barring:     curtesy. 

Cited  in  McBreen  v.  McBreen,  154  Mo.  331,  77  Am.  St.  Rep.  758,  55  S.  W.  463, 
holding  deed  to  married  woman  living  separately,  of  land  purchased  with 
separate  estate  and  taken  in  terms  to  sole  use,  free  of  all  marital  rights  of 
husband,  gives  absolute  estate  in  equity,  free  from  curtesy;  Re  Kaufmann,  227 
Mo.  413,  126  S.  W.  1023,  holding  curtesy  barred  where  deed  conveys  to  husband 
in  trust  for  wife,  for  sole  and  separate  use,  benefit  and  behoof  of  wife,  entirely 
free  from  all  control,  restrain  or  interference  as  well  as  the  estate  of  curtesy  and 
debts  of  husband;  Jamison  v.  Zausch,  142  Fed.  899,  holding  curtesy  not  barred 
by  conveyances  to  wife  in*  usual  form  of  warranty  deed. 

Cited  in  notes  (7  L.R.A.  695)  on  tenancy  by  curtesy;  (112  Am.  St.  Rep.  587) 
on  tenancy  by  the  curtesy;  (128  Am.  St.  Rep.  491)  on  nature  and  existence  of 
•estates  of  tenancy  by  the  curtesy. 

Distinguished  in  Van  Osdell  v.  Champion,  89  Wis.  665,  27  L.  R.  A.  775,  46 
Am.  St.  Rep.  864,  62  N.  W.  539,  holding  condition  that  realty  devised  should 
not  be  subject  to  debts  void. 

3  L.  R.  A.  859,  NEWHALL  v.  APPLETON,   114  N.  Y.   140,  21  N.  E.   105. 

Later  appeal  in  25  Jones  &  S.  345,  9  N.  Y.  Supp.  306. 
1  »:iu-     to   explain   terms   of   contract. 

Cited  in  Smith  v.  Clews,  114  N.  Y.  194,  4  L.  R.  A.  394,  11  Am.  St.  Rep. 
ii27,  21  X.  E.  160.  holding  usage  admissible  to  explain  "on  approval"  in  receipt 


3  L.R.A.  859]  L.  R.  A.  CASES  AS  AUTHORITIES.  59$ 

given  by  diamond  dealer  in  trade  contract;  Brody  v.  Chittenden,  106  Iowa, 
528,  76  N.  W.  1009,  holding  evidence  that,  by  custom,  regulators  and  scales 
in  jeweler's  trade  not  covered  by  mortgage  on  "fixtures ;"  Atkinson  v.  Trues- 
dell,  127  N.  Y.  234,  27  N.  E.  844,  holding  parol  evidence  of  usage  to  explain 
phrase  "to  be  taken  by  Jan.  1st,"  in  order  for  bottles,  admissible ;  Dwight  v. 
Cutting,  91  Hun,  41,  36  N.  Y.  Supp.  99,  holding  custom  to  allow  for  shrinkage 
on  measurement  of  bark  admissible  in  behalf  of  defendant  in  action  for  pur- 
chase price;  Mclntosh  v.  Miner,  53  App.  Div.  245,  65  N.  Y.  Supp.  735,  holding 
evidence  to  establish  customary  length  of  theatrical  "season"  competent  in  ac- 
tion for  breach  of  contract  of  employment;  Briscoe  v.  Litt,  19  Misc.  7,  42  N.  Y. 
Supp.  908,  holding  custom  to  terminate  theatrical  employees'  contracts  on  two 
weeks'  notice  competent  in  action  to  recover  contract  price  for  services;  Henry 
v.  Agostini,  12  Misc.  17,  33  N.  Y.  Supp.  37,  holding  evidence  admissible  to  show 
that  "windows,"  in  contract  to  furnish  frames  and  sashes,  refers  only  to  ex- 
terior windows;  Schipper  v.  Milton,  51  App.  Div.  525,  64  N.  Y.  Supp.  935,  hold- 
ing evidence  admissible  to  show  custom  to  regard  specification  of  "manila  hemp" 
in  sale  contract,  merely  as  measure  of  value  of  hemp  sold;  Underwood  v.  Green- 
wich Ins.  Co.  161  N.  Y.  423,  55  N.  E.  936,  holding  evidence  admissible  to  es- 
tablish custom  to  regard  "binding  slip,"  on  application  for  renewal  of  insurance 
policy,  as  binding  merely  until  action  by  company;  White  v.  Ellisburgh,  18 
App.  Div.  517,  79  N.  Y.  S.  R.  1124,  45  N.  Y.  Supp.  1122,  holding  evidence  of 
custom  to  construct  "iron  bridge"  with  wooden  joists  admissible  in  action  on 
construction  contract;  Southampton  v.  Jessup,  173  N.  Y.  89,  65  N.  E.  949,  hold- 
ing parol  evidence  inadmissible  when  writing  silent  to  show  that  bridge  is  to 
be  made  of  wood. 

Cited  in  footnotes  to  Baltimore  Base  Ball  &  Exhibition  Co.  v.  Pickett,  22  L. 
R.  A.  690,  which  holds  special  contract  for  definite  time  not  affected  by  cus- 
tom to  discharge  ball  players  on  ten  days'  notice;  Harris  v.  Sharpies,  58  L.  R. 
A.  214,  which  denies  right  under  contract,  to  add  lithographer's  name  for  ad- 
vertising purposes  to  lithographed  cover  design;  German  American  Ins.  Co.. 
v.  Commercial  F.  Ins.  Co.  16  L.  R.  A.  291,  which  holds  custom  in  particular 
city  as  to  what  constitutes  "building"  or  "risk"  not  presumed  to  be  known  to 
foreign  company;  Delaware  Ins.  Co.  v.  S.  S.  White  Dental  Mfg.  Co.  65  L.R.A. 
387,  which  holds  "marine  policy  providing  that  no  risk  shall  attach  until  amount 
and  description  is  approved  and  indorsed  thereon,  not  changed  into  open  and' 
unrestricted  policy  covering  all  property  assured  elects  to  report,  by  adopting; 
agreement  fixing  uniform  premium,  supplying  blanks  on  which  to  report  risks 
and  a  long  continued  custom  of  reporting  risks  by  assured  when  convenient,  and 
their  uniform  acceptance  by  insurer. 

Cited  in  notes  (10  L.  R.  A.  786)  on  law,  usage  and  custom  as  part  of  con- 
tract; (12  L.  R.  A.  376)  on  construction  of  terms  void  in  contracts;  (13  L.  R^ 
A.  440)  on  custom  and  usage  as  law;  (17  L.  R.  A.  272)  on  exception  to  rule 
that  parol  evidence  inadmissible  to  vary  written  contract;  (6  L.  R.  A.  43)  on 
parol  evidence  as  to  meaning  of  words  and  phrases. 

Distinguished  in  Thomas  v.  Sctitt,  127  N.  Y.  141,  27  N.  E.  961,  holding 
oral  evidence  tending  to  change  complete  transfer  of  title  to  lumber  to  agree- 
ment for  sale  of  lumber  for  mortgagor's  benefit  inadmissible;  House  v.  Watch, 
144  N.  Y.  422,  39  N.  E.  327,  holding  inadmissible,  oral  evidence  to  vary  mu 
ambiguous  contract  for  transfer  of  realty;  Simis  v.  New  York,  L.  E.  &  VV. 
R.  Co.  1  Misc.  180,  20  N.  Y.  Supp.  639,  holding  custom  of  railroad  to  issue 
tickets  in  lieu  of  those  lost  inadmissible  in  action  on  written  contract  contain- 
ing no  such  stipulation;  Booth  Bros.  v.  Baird,  87  Hun,  455,  34  N.  Y.  Supp.  392, 
holding  parol  evidence  to  explain  meaning  of  "superficial  yard,"  by  local  custom 


599  L.  R.  A.  CASES  AS  AUTHORITIES.  [3  L.R.A.  863 

known    to   parties,    inadmissible    when    custom   not   clearly    established;    Goulds 
Mfg.  Co.  v.  Munckenbeck,  20  App.  Div.  614,  47  X.  Y.  Supp.  325,  holding  custom 
not  to  charge  interest  until  rendition  of  account  not  admissible  to  vary  sale,  con- 
tract expressly  providing  "Terms:   thirty  days." 
Pnrol  evidence  to  explain  ambiguity. 

Cited  in  Southampton  v.  Jessup,  173  N.  Y.  89,  65  N.  E.  949,  holding  where 
town  trustees  by  resolution  authorize  party  "to  make  roadway  and  erect  bridge" 
of  fixed  width  and  height,  there  is  no  ambiguity  rendering  parol  evidence  admis- 
sible to  show  both  parties  intended  certain  material  to  be  used. 

Cited  in  note  (14  Eng.  Rul.  Cas.  672)  on  parol  evidence  as  to  usage  in  inter- 
pretation of  written  contracts. 

3  L.  R.  A.  861,  McBRYDE  v.  SAYER,  86  Ala.  458,  5  So.  791. 
Rig-ht  to  injunction. 

Cited  in  Clifton  Iron  Co.  v.  Dye,  87  Ala.  471,  6  So.  192,  holding  injunction 
to  restrain  pollution  of  stream  by  upper  riparian  proprietor  not  granted  where 
complainant  has  other  water  available,  and  public  interests  favor  industry  caus- 
ing injury;  Allen  v.  LaFayette,  89  Ala.  652,  9  L.  R.  A.  501,  8  So.  30,  refusing 
to  enjoin  payment  of  void  county  bonds  issued  for  money  loaned  by  holder, 
and  legitimately  expended  in  behalf  of  county;  Brasher  v.  Miller,  114  Ala.  489, 
21  So.  467,  holding  injunction  to  restrain  payment  of  school  teacher's  salary 
will  not  issue  where  services  performed,  though  contract  void;  Amelia  Mill.  Co. 
v.  Tennessee  Coal,  Iron  &  R.  Co.  123  Fed.  814,  denying  injunction  against 
use  of  ore  washers,  when  loss  to  defendant  greater  than  plaintiff's  injury; 
Wharton  v.  Hannon,  101  Ala.  558,  14  So.  630  (dissenting  opinion),  majority  up- 
holding injunction  against  obstruction  of  alley- way,  though  better  ingress 
and  egress  offered  by  other  alley-way;  Campau  v.  National  Film  Co.  159  Mich. 
173,  123  X.  W.  606.  holding  injunction  will  not  issue  to  prevent  carrying  on  busi- 
ness of  lessee  where  lessor'  knew  purpose  for  which  property  was  leased,  and 
injunction  would  be  unconscionable  and  result  in  hardship  to  lessee;  Madison  v. 
Ducktown  Sulphur,  Copper  &  I.  Co.  113  Tenn.  362,  83  S.  W.  658,  holding  injunc- 
tive  relief  may  be  refused  in  discretion  of  court  where  it  will  close  large  indus- 
try and  injuriously  affect  large  number  of  people. 

Cited  in  note  (6  L.R.A.  159)  on  definition  of  easement;  (13  Eng.  Rul.  Cas.  109). 
on  injunction  to  restrain  breach  of  covenant;  (13  Eng.  Rul.  Cas.  117)  as  to 
when  interlocutory  injunction  will  be  granted. 

Distinguished  in  Ives  v.  Edison,  124  Mich.  406,  50  L.  R.  A.  137,  83  Am.  St. 
Rep.  329,  83  X.  \V.  120  (footnote  50  L.  R.  A.  134),  which  sustains  right  of 
owner  of  easement  to  injunction  to  compel  restoration  of  stairway;  South 
&  North  Ala.  R.  Co.  v.  Highland  Ave.  &  Belt  R.  Co.  98  Ala.  409,  39  Am.  St. 
Rep.  74,  13  So.  682,  decreeing  specific  performance  of  agreement  to  permit 
railway  to  lay  track  on  defendant's  land. 

3   L.   R.  A.   863,   CLANIN  v.   ESTERLY   HARVESTING  MACH.   CO.    118   ImL 

372,  21  N.  E.  35. 
Extrinsic   evidence   to   vary   contract. 

Cited  in  Mclntosh-Huntington  Co.  v.  Rice,  13  Colo.  App.  407,  58  Pac.  358, 
and  Murray  v.  W.  W.^imball  Co.  10  Ind.  App.  187,  37  N.  E.  736,  holding  in 
action  by  payee  that  parol  evidence  to  establish  delivery  to  payee  or  his  agent 
in  escrow  not  admissible;  Loonie  v.  Tillman.  3  Tex.  Civ.  App.  334,  22  S.  W.  524, 
and  Cooper  v.  Merchants'  &  M.  Nat.  Bank,  25  Ind.  App.  346,  57  X.  E.  569,  hold- 
ing same  true  in  action  by  indorsee;  Conant  v.  National  State  Bank,  121 


3  L.R.A.  8U3]  L.  R.  A.  CASES  AS  AUTHORITIES.  000 

Ind.   325,   22   N.   E.   250,   holding   evidence   to   alter   notes   and   mortgage   inad- 
missible in  absence  of  fraud  or  mistake. 

Cited  in  notes  (20  L.  R.  A.  713)  on  admissibility  of  extrinsic  evidence  to 
show  who  is  liable  as  maker  of  note;  (43  L.  R.  A.  460,  481)  on  breach  of  con- 
temporaneous agreements  as  defense  to  promissory  note;  (45  L.  R.  A.  346) 
on  conditional  execution  of  contract  under  parol  agreement  as  to  taking  effect; 
(18  L.R.A.(N.S.)  291)  on  parol  evidence  to  show  bill  or  note  delivered  upon 
condition;  (30  L.R.A.(N.S.)  44)  on  reference  to  extrinsic  agreement  as  affecting 
negotiability;  (31  L.R.A.  (N.S.)  237)  on  admissibility  of  parol  evidence  as  to 
manner  or  means  of  paying  written  contract  not  within  statute  of  frauds,  pur- 
porting to  be  payable  in  money;  (21  Am.  St.  Rep.  296)  on  parol  evidence  as  to 
notes. 

Distinguished  in  Hunter  v.  First  Xat.  Bank,  172  Ind.  74,  87  N.  E.  734,  holding 
under  plea  of  non  est  factum,  parol  admissible  to  show  that  delivery  of  note  in 
its  then  form  was  unauthorized  and  note  accordingly  not  fully  executed. 
"Contract  of  guaranty. 

Cited  in  note  (105  Am.  St.  Rep.  502)  on  contract  of  guaranty. 
Delivery  of  note  to  payee  as  escrow. 

Cited  in  note  (130  Am.  St.  Rep.  927)  on  delivery  of  note  to  payee  as  escrow 
•Negotiability  of  note. 

Cited  in  Gilpin  v.  People's  Bank,  45  Ind.  App.  55,  90  N.  E.  91,  holding  that 
'designation  of  consideration  for  promise  to  pay  does  not  destroy  its  negotiability. 


L.  R  A.  CASES  AS  AUTHORITIES. 


CASES    IN    4    L.    R    A. 


4  L.  R.  A.  33,  OLIVE  v.  STATE,  86  Ala.  88,  5  So.  653. 
Judicial   notice. 

Cited  in  Roby  v.  Sheppard,  42  W.  Va.  292,  26  S.  E.  278,  holding  that  judicial 
notice  will  be  taken  of  population  of  city;  Anderson  v.  Com.  100  Va.  864,  42 
S.  E.  865,  holding  that  court  will  not  take  judicial  notice  of  fact  that  unin- 
corporated hamlet  is  in  particular  county. 

Cited  in  footnotes  to  Southern  R.  Co.  y.  Covenia,  40  L.  R.  A.  253,  which  holds 
judicial  notice  will  be  taken  that  child  under  two  cannot  perform  services  of 
value  to  parents;  Com.  v.  King,  5  L.  R.  A.  536,  which  authorizes  taking 
of  judicial  notice  that  river  is  not  a  public  highway;  Jamieson  v.  Indiana 
Natural  Gas  &  Oil  Co.  12  L.  R.  A.  652,  which  holds  that  judicial  notice 
will  be  taken  that  natural  gas  is  dangerous  agency;  Richardson  v.  Buhl,  6  L. 
R.  A.  458,  which  holds  courts  will  take  judicial  notice  of  illegal  contracts;  Wal- 
cott  v.  Wells,  9  L.  R.  A.  60,  which  holds  judicial  notice  will  be  taken  of  assign- 
ment of  judge  to  certain  district. 

Cited  in  notes   (5  L.R.A.  364)   on  conflict  of  laws;    (13  Am.  St.  Rep.  738)   on 
judicial  notice;    (82  Am.  St.  Rep.  446)   on  judicial  notice  of  localities  and  boun- 
daries. 
Pnblic  iiiv.  invnys;  obstructions  In. 

Cited  in  Webb  v.  Demopolis,  95  Ala.  135,  21  L.  R.  A.  70,  13  So.  289,  holding 
continuance  of  obstruction  in  public  street  for  any  length  of  time  will  not 
prevent  city  from  obtaining  injunction;  Reed  v.  Birmigham,  92  Ala.  349,  9  So. 
161,  holding  statute  of  limitation  no  bar  to  proceeding  to  remove  obstruction  in 
public  street;  Weiss  v.  Taylor,  144  Ala.  447,  39  So.  519,  holding  statute  of  lim- 
itations not  to  run  against  a  bill  to  abate  public  nuisance. 
Waters  as.  . 

Cited  in  Webster  v.  Harris,  111  Tenn.  692,  59  L.  R.  A.  330,  69  S.  W.  782,  hold- 
ing lake  not  navigable  in  technical  sense,  whose  bed  is  covered  with  trees  and 
stumps  through  which  are  no  proper  channels;  Morrison  Bros.  v.  Coleman,  87  Ala. 
657,  5  L.  R.  A.  385,  6  So.  374,  holding  fresh-water  stream  not  shown  to  have  been 
navigable  to  point  of  obstruction;  Alabama  S.  River  Nav.  Co.  v.  Georgia  P.  R. 
Co.  87  Ala.  155,  6  So.  73,  holding  company  to  improve  river  cannot  remove  ob- 
struction until  it  is  reached  in  progress  of  work;  Blackman  v.  Mauldin,  164  Ala. 
342,  27  L.R.A.  (N.S.)  672,  51  So.  23,  holding  that  a  fresh  water  stream  in  a 
settled  coxintry  able  in  its  normal  state  without  artifical  aid  to  float  local  pro- 
ducts is  a  "floatable  stream"  subject  to  public  uses;  Webster  v.  Harris,  111  Tenn. 
692,  59  L.R.A.  330,  69  S.  W.  782,  holding  extent  of  use  for  navigation  a  de- 
termining factor  as  to  navigability. 

601 


4  L.R.A.  33]  L.  R.  A.  CASES  AS  AUTHORITIES.  602 

Cited  in  notes  (41  L.  R.  A.  371,  375)  on  right  to  use  stream  for  floating 
logs;  (42  L.  R.  A.  317,  320)  on  what  waters  are  navigable;  (59  L.  R.  A.  79) 
on  right  to  obstruct  or  destroy  rights  of  navigation;  (53  L.  R.  A.  903)  on 
obstructions  and  encroachments  in  waterways;  (67  L.R.A.  838)  on  right  to  im- 
prove navigability  of  stream;  (126  Am.  St.  Rep.  717,  722,  730)  on  what  waters 
are  navigable. 
Statutory  declaration  of  navigability. 

Cited  in  People  ex  rel.  Deneen  v.  Economy  Light  &  P.  Co.  241  111.  330,  89  X. 
E.   760,  on  compensation  as   a  condition   to  legislative   appropriation  of  a   non- 
navigable  stream  to  public  use  for  navigation. 
Prescription    and   adverse    possession. 

Cited  in  Birmingham  v.  Land,  137  Ala.  546,  34  So.  613,  holding  maintenance 
of  nuisance  for  ten  years  no  defense  to  action  therefor;  Mobile  Transp.  Co.  v. 
Mobile,  128  Ala.  351,  64  L.  R.  A.  343,  86  Am.  St.  Rep.  143,  30  So.  645,  hold- 
ing evidence  of  adverse  possession  of  public  land  as  against  city,  properly 
rejected. 

Cited  in  note   (76  Am.  St.  Rep.  485)   on  adverse  possession  of  public  property. 

4  L.  R.  A.  45,  LANE'S  APPEAL,  57  Conn.  182,  14  Am.  St.  Rep.  94,  17  Atl.  926. 
Execution  of  will. 

Cited  in  Packer  v.  Packer,  179  Pa.  583,  57  Am.  St.  Rep.  516,  36  Atl.  344, 
holding  will,  not  legally  witnessed  when  executed,  not  validated  by  act  dispens- 
ing with  requirement;  Stone's  Appeal,  74  Conn.  304,  50  Atl.  734,  holding  in- 
valid, nuncupative  will  made  by  one  who  was  neither  mariner  nor  soldier;  Hatha- 
way v.  Smith,  79  Conn.  511,  9  L.R.A.(N.S.)  312,  65  Atl.  1058,  9  A.  &  E.  Ann.  Cas. 
99,  on  the  observance  of  statutory  formalities  in  force  at  time  of  execution  of 
will  as  essential  to  its  proper  execution;  Bryan  v.  Bigelow,  77  Conn.  613,  107  Am. 
St.  Rep.  64,  60  Atl.  266,  holding  a  sealed  letter  deposited  with  and  referred  to  in 
a,  will  is  ineffective  as  a  part  of  such  will  it  not  being  executed  as  a  will ; 
Barker  v.  Hinton,  62  W.  Va.  645,  59  S.  E.  614,  13  A.  &  E.  Ann.  Cas.  1150;  hold- 
ing the  laws  with  respect  to  execution  at  the  time  of  execution  apply  as  against 
those  in  force  at  time  of  testator's  death. 

Disapproved   in  Langley  v.  Langley,   18  R.   I.   621,   30  Atl.   465,  holding  will 
not  legally  witnessed   at   time   of   execution   validated   on   death   of   testator   by 
change  in   statute. 
Retroactive  statutes. 

Cited  in  note   (30  Am.  St.  Rep.  78)   on  retroactive  statutes. 

4  L.R.A.  48,  LEPPLE  v.  HAWKE,  51  N.  J.  L.  208,  14  Am.   St.   Rep.   677,   17 

Atl.  351. 
Replevin. 

Cited  in  Buis  v.  Cooper,  63  Mo.  App.  202,  holding  exempt  property  cannot  be 
taken  by  replevin  from  officer. 

4  L.  R.  A.  51,  FOLEY  v.  PETTEE  MACH.  WORKS,  149  Mass.  294,  21  N.  E.  304. 
What  risks  employee  assumes. 

Cited  in  Connors  v.  Morton,  160  Mass.  335,  35  N".  E.  860,  holding  that  servant 
took  risk  of  working  in  obviously  dangerous  place  about  elevator  well ;  Daigle 
v.  Lawrence  Mfg.  Co.  159  Mass.  379,  34  N.  E.  458,  holding  that  servant  took 
obvious  risk  of  removing  waste  from  revolving  cylinder;  Murphy  v.  American 
Rubber  Co.  159  Mass.  267,  34  N.  E.  268,  holding  servant  assumes  risk  of  uncov- 
ered shafting;  Rood  v.  Lawrence  Mfg.  Co.  155  Mass.  593,  30  N.  E.  174,  holding 


•003  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  51 

nineteen  year  old  boy  understood  danger  of  holding  onto  shipper  rod  outside* 
•elevator  well;  Anderson  v.  Clark,  155  Mass.  370,  29  N.  E.  589.  holding  that  sea- 
man took  obvious  risks  of  windlass  and  its  appliances;  Alexander  v.  Davis  Bros. 
Lumber  Co.  124  La.  11,  49  So.  724,  holding  servant  familiar  with  saw  mills 
took  risk  of  working  with  gloved  hands  near  to  revolving  cog-wheels  in  plain 
sight. 

Cited  in  footnotes  to  Goodrich  v.  New  York  C.  &  H.  R.  R.  Co.  5  L.  R.  A.  750, 
•which  holds  risk  from  defective  couplers  not  assumed;  Williamson  v.  Newport 
News  &  M.  Valley  Co.  12  L.  R.  A.  297,  which  holds  brakeman  assumes  risk  of 
bridge  known  to  be  too  low;  Coyle  v.  Gritting  Iron  Co.  47  L.  R.  A.  147,  which 
holds  that  servant  assumes  obvious  risk  from  using  machine  from  which  bolt 
7iiissing;  Mensch  v.  Pennsylvania  R.  Co.  17  L.  R.  A.  450,  which  holds  danger 
from  projection  of  bolt  from  end  of  car  a=sumed  by  brakeman;  Lewis  v.  New 
York  &  N.  E.  R.  Co.  10  L.  R.  A.  513,  which  holds  that  servant  cannot  recover 
for  injuries  from  known  defects  though  master  promised  to  remedy  them  to 
avoid  injury  to  third  persons;  McKee  v.  Chicago,  R.  I.  &  P.  R.  Co.  13  L.  R.  A. 
817.  which  holds  risk  from  wing  fences  at  cattle-guards  assumed  by  brakemen; 
<Stager  v.  Troy  Laundry  Co.  53  L.  R.  A.  459.  which  holds  risk  of  hand  passing 
under  guard  rails  into  rollers  not  assumed  as  matter  of  law  by  servant  operat- 
ing mangle  in  laundry.  Louisville  &  N.  R.  Co.  v.  Hall,  4  L.  R.  A.  710,  which 
holds  company  liable  to  brakeman  for  injury  by  low  bridge;  Jacksonville,  T.  & 
K.  W.  R.  Co.  v.  Galvin.  10  L.  R.  A.  337,  which  holds  risk  from  projecting  articles 
r.ssumed  by  brakeman. 

Cited  in  notes    (12  L.  R.  A.  342)    on  employee  assumes  ordinary  risks  of  his 
employment;   (8  L.  R.  A.  636)  on  servant's  knowledge  of  defective  and  dangerous 
machine. 
Master'*   dnty   to   guard    machinery. 

Cited  in  LaFayette  Carpet  Co.  v.  Stafford,  25  Ind.  App.  190,  57  N.  E.  944, 
holding  master  not  required  to  cover  whizzer  used  to  extract  water  from  yarn; 
Hale  v.  Cheney,  159  Mass.  271,  34  N.  E.  255,  holding  master  not  bound  to  box 
shaft;  Wilson  v.  Massachusetts  Cotton  Mills,  169  Mass.  71,  47  N.  E.  506,  hold- 
ing master  not  bound  to  cover  cogwheels  of  machine  used  to  hoist  bales  of  cotton ; 
Guedelhofer  v.  Ernsting,  23  Ind.  App.  202,  55  N.  E.  113,  holding  master  not 
bound  to  furnish  guard  on  jointer;  WMlcox  v.  Herbert,  90  Ark.  149,  118  S.  W.  402, 
holding  master  not  necessarily  negligent  in  selection  of  a  more  dangerous  kind 
of  machinery  or  in  altering  machinery  to  render  it  less  safe. 
blaster's  duty  to  -warn  servant. 

Cited  in  footnote  to  Ciriack  v.  Merchants  Woolen  Co.  6  L.  R.  A.  733,  which 
holds  master  not  bound  to  warn  twelve  year  old  servant  of  danger  from  cog- 
wheels in  plain  sight. 

Cited  in  notes  (44  L.  R.  A.  51)   on  master's  duty  to  instruct  and  warn  servants 
as  to  perils  of  employment;   (4  L.  R.  A.  851)  on  master's  duty  to  inform  servants 
of  extraordinary  risks. 
Statutory  notice  of  injury   to  aervant. 

Cited  in  McKenna  v.  Gould  Wire  Cord  Co.  197  Mass.  411,  83  N.  E.  1113,  on 
necessary  steps  to  be  taken  by  plaintiff  after  injury  to  entitle  him  to  statutory 
remedies;  Chisholm  v.  Manhattan  R.  Co.  116  App.  Div.  325,  101  N.  Y.  Supp.  622, 
holding  service  of  complaint  alleging  death  was  caused  by  common  law  negli- 
gence of  defendant's  superintendent,  not  a  compliance  with  statutory  requirement 
for  notice  to  put  statutory  remedy  in  force;  Williams  v.  Atchison,  T.  &  S.  F.  R. 
Co.  233  Mo.  083,  136  S.  W.  304,  holding  that  no  recovery  can  be  had  for  injury 


4  L.R.A.  51]  L.  R.  A.  CASES  AS  AUTHORITIES.  604 

to  switchman  because  of   proximity   of  freight  platform  to  track,  unless  state 
inspector  has  given  company  notice. 

Cited  in  note  (19  Eng.  Rul.  Gas.  59)   on  necessity  of  notice  to  liability  for  in 
jury  due  to  neglect  of  statutory  precautions. 

4  L.  R.  A.  54,  SEITHER  v.  PHILADELPHIA  TRACTION  CO.  125  Pa.  397,  11 

Am.  St.  Rep.  905,  17  Atl.  338. 
Effect  of  release   of  one   joint   tort-feasor. 

Cited  in  Abb  v.  Northern  P.  R.  Co.  28  Wash.  431,  58  L.  R.  A.  298,  92  Am.  St. 
Rep.  864,  68  Pac.  954,  holding  that  satisfaction  of  claim  by  street  railway  re- 
leased steam  railway,  a  joint  wrongdoer ;  Hartigan  v.  Dickson,  81  Minn.  286r 
83  N.  W.  1091,  holding  that  satisfaction  by  railway  of  claim  for  injuries  due  to- 
foreman  barred  action  against  foreman;  Missouri,  K.  &  T.  R.  Co.  v.  McWherter, 
59  Kan.  351,  53  Pac.  135,  holding  release  of  alleged  wrongdoer  not  bar  to  action 
against  real  wrongdoer;  O'Shea  v.  New  York,  C.  &  St.  L.  R.  Co.  44  C.  C.  A.  604, 
105  Fed.  562,  holding  satisfaction  of  claim  by  one  of  several  joint  tort-feasors 
releases  all ;  Miller  v.  Beck,  108  Iowa,  578,  79  N.  W.  344,  holding  release  of  one 
wrongfjper  does  not  release  another  who  was  not  joint  wrongdoer;  Hubhard  v. 
St.  Louis  &  M.  R.  R.  Co.  173  Mo.  255,  72  S.  W.  1073,  holding  release  of  express 
company  by  employee  from  liability  for  injuries  from  collision  of  express  wagon 
with  street  car  discharge  of  street  car  company;  Abb  v.  Northern  P.  R.  Co.  28 
Wash.  431,  58  L.  R.  A.  298,  92  Am.  St.  Rep.  864,  68  Pac.  954,  holding  satisfaction 
as  to  claim  against  one  wrongdoer  releases  another,  although  stipulated  other- 
wise; McCoy  v.  Louisville  &  N.  R.  Co.  146  Ala.  336,  40  So.  306.  holding  judgment 
and  satisfaction  against  one  of  two  or  more  joint  tort  feasors  may  be  pleaded  in 
bar  of  further  action  on  same  subject  by  same  plaintiff  against  the  other  joint 
tort  feasors;  Ducey  v.  Patterson,  37  Colo.  221,  9  L.R.A.  (X.S.)  1068,  119  Am.  St. 
Rep.  284,  86  Pac.  109,  11  A.  &  E.  Ann.  Gas.  393,  on  release  of  all  joint  tort- 
feasors  by  taking  of  judgment  and  satisfaction  from  part;  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  v.  Hilligoss,  171  Ind.  424,  131  Am.  St.  Rep.  258,  86  N.  E.  485,  hold- 
ing a  contract  of  release  of  one  of  several  joint  tort-feasors  clearly  showing  a 
surrender  of  all  claim  for  recompense  for  injury  done  will  release  the  other 
wrong  doers;  Snyder  v.  Mutual  Teleph.  Co.  135  Iowa,  229,  14  L.R.A.(N.S-)  329, 
112  N.  W.  776,  holding  the  acceptance  of  a  voluntary  satisfaction  from  one  of  two 
joint  tort-feasors  giving  receipt  in  full  is  a  bar  against  the  other  though  the 
claimant  intended  by  the  acceptance  that  the  other  be  not  released;  Ryan  v. 
Becker,  136  Iowa,  277,  14  L.R.A.(N.S.)  332,  111  N.  W.  426,  on  the  rule  that 
plaintiff  in  second  action  against  different  defendant  is  estopped  from  setting 
up  that  defendant  in  first  action  from  whom  judgment  and  satisfaction  was  ob- 
tained for  same  tort  was  not  a  joint  tort-feasor;  Sircey  v.  Hans  Rees'  Sons,  155 
N.  C.  303,  71  S.  E.  310,  holding  that  release  of  railroad  from  liability  for  in- 
jury to  switchman  from  being  struck  by  pile  of  bark  near  track  releases  owner 
of  bark;  Thorp  v.  Boudwin,  228  Pa.  171,  77  Atl.  421,  holding  that  person  in- 
jured by  collapse  of  building  can  sue  landlord  and  tenant,  but  can  have  only  one 
satisfaction;  Robinson  v.  St.  Johnsbury  &  L.  C.  R.  Co.  80  Vt.  140,  9  L.R.A.  (X.S.) 
1254,  66  Atl.  814,  12  A.  &  E.  Ann.  Gas.  1060,  holding  railway  company  and 
express  company  with  which  it  has  a  contract  of  carriage,  under  which  the  ex- 
press company  is  to  indemnify  railroad  for  claiming  for  injuries  through  negli- 
gence may  be  joint  tort-feasors  and  an  action  by  express  messenger  against  rail- 
road for  injury  may  be  barred  by  satisfaction  from  express  company. 

Cited  in  notes  ( 58  L.  R.  A.  297,  307 )  on  effect  of  release  of  one  joint  tort-feasor 
on  liability  of  another;  (14  L.R.A. (N.S.)  322)  on  effect  of  release  of  person  not 
liable  from  liability  for  a  tort  to  release  another;  (19  L.R.A. (X.S.)  619)  on 


605  L.  E.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  55 

effect,  in  release  of  one  joint  tort  feasor,  of  reservation  of  right  as  against  others ; 
(92  Am.  St.  Rep.  880,  881,  886)  on  release  of  one  joint  tort-feasor  affecting 
liability  of  others. 

Distinguished  in  Derosa  v.  Hamilton,  3  Pa.  Dist.  R.  410,  4  Dauphin  Co.  Rep. 
253,  14  Pa.  Go.  Ct.  317,  holding  release  of  two  physicians  in  action  for  malprac- 
tice not  discharge  of  third. 

4  L.  R.  A.  55,  ELLIS  v.  GARY,  74  Wis.  176,  17  Am.  St.  Rep.  125,  42  N.  W.  252. 
Oral  agreement  to  make  will  or  convey  land. 

Followed  in  Loper  v.  Sheldon,  120  Wis.  31,  97  N.  W;  524;  Dixon  v.  Sheridan, 
125  Wis.  64,  103  N.  W.  239, — holding  an  indivisible  parol  contract  to  devise  both 
realty  and  personalty  is  within  statute  of  frauds  and  void  as  to  both  kinds  of 
property. 

Cited  in  Grant  v.  Grant,  63  Conn.  538,  38  Am.  St.  Rep.  379,  29  Atl.  15,  holding 
specific  performance  of  oral  agreement  to  devise  land  to  adopted  child  not  en- 
forceable by  him;  Dicken  v.  McKinley,  163  111.  327,  54  Am.  St.  Rep.  471,  45  N.  E. 
134,  holding  oral  agreement  by  parents  of  child  and  adopting  parent,  in  relation 
to  willing  her  property,  within  statute  of  frauds;  Swash  v.  Sharpstein,  14  Wash. 
436,  32  L.  R.  A.  799,  44  Pac.  862,  holding  within  statute  of  frauds  oral  agree- 
ment to  devise  land;  Harman  v.  Harman,  17  C.  G.  A.  519,  34  U.  S.  App.  316,  70 
Fed.  934,  decreeing  specific  performance  of  agreement  by  uncle  with  his  nephews 
to  leave  land  to  them  on  death;  Kessler's  Estate,  87  Wis.  667,  41  Am.  St.  Rep. 
74,  59  N.  W7.  129,  holding  oral  agreement  to  devise  real  estate  in  consideration 
•of  services  within  statute  of  frauds;  Rodman  v.  Rodman,  112  Wis.  378,  384,  88 
N.  W.  218,  holding  oral  agreement  to  will  property  within  statute  of  frauds; 
Everdell  v.  Hill,  58  App.  Div.  155,  68  N.  Y.  Supp.  719,  holding  alleged  oral  agree- 
ment between  sisters,  that  survivor  should  leave  property  to  nieces,  within 
statute  of  frauds. 
Statute  of  frauds Recovery  on  quantum  mcrult. 

Cited  in  Cann  v.  Cann,  40  W.  Va.  155,  20  S.  E.  910,  holding  son  remaining  un- 
married and  working  farm  for  father  on  agreement  for  testamentary  compensa- 
tion entitled  to  quantum  meruit  from  father's  estate;  Williams  v.  Williams,  114 
\Yis.  79,  82,  89  N.  W.  835,  holding  contract  implied  for  services  rendered  one 
brother  by  another  in  superintending  building;  Martin  v.  Martin,  108  Wis.  289, 
81  Am.  St.  Rep.  895,  84  N.  W.  439,  holding  boy  not  legally  adopted,  but  always 
treated  as  son,  cannot  recover  for  services  in  absence  of  agreement;  Gorrell  v. 
Taylor,  107  Tenn.  570,  64  S.  W.  888,  holding  services  of  daughter  and  son-in-law 
during  sickness  of  parent  cannot  be  recovered  for  against  his  estate;  Quinn  v. 
Quinn,  5  S.  D.  333,  49  Am.  St.  Rep.  875,  58  N.  W.  808,  holding  one  adopted  as 
heir  under  agreement  with  his  mother  can  maintain  action  to  set  aside  con- 
veyance and  will  in  fraud  of  his  rights  as  heir;  Re  Schmidt,  93  Wis.  124,  67 
N.  W.  37,  holding  son-in-law  has  no  claim  against  father-in-law's  estate  for 
board  and  lodging,  without  express  agreement;  IHitler  v.  Kent,  ]52  Ala.  595, 
44  So.  863,  holding  that  evidence  of  an  oral  agreement  for  compensation  though 
void  under  statute  of  frauds  is  admissible  in  quantum  meruit  action  to  rebut 
defense  of  gratuitous  rendition  of  services;  Raycraft  v.  Johnston,  41  Tex.  Civ. 
App.  470,  93  S.  W.  237,  holding  that  a  person  performing  work  on  a  parol 
promise  of  gift  of  estate  by  will  may  sue  on  quantum  meruit  on  non-performance 
of  promise,  though  such  promise  is  void  under  statute  of  frauds;  Taylor  v. 
Thieman,  132  Wis.  43,  122  Am.  St.  Rep.  943,  111  X.  W.  229,  holding  an  express 
promise  to  will  realty  orally  made  admissible  to  rebut  presumption  that  the  serv- 


4  L.R.A.  55]  L.  R.  A.  CASES  AS  AUTHORITIES.  COG 

ices  rendered   by  adopted  son   in  consideration  for  promise   were  rendered   gra- 
tuitously, though  the  promise  is  void  under  statute  of  frauds. 

Cited  in  footnote  to  Ulrich  v.  Ulrich,  18  L.  R.  A.  37,  which  holds  that  no  pre- 
sumption exists  against  parent's  agreement  to  pay  for  services  where  evidence 
tends  to  show  agreement. 

Cited  in  notes  (57  L.R.A.  729)  on  parent's  duty  to  support  child,  as  affected' 
by  child's  interest  in  trust  estate  or  other  property;  (37  L.R.A. (N.S.)  640)  oni 
right  to  recover  value  of  services  rendered  in  consideration  of  contract  to  con- 
vey or  devise  property  which  is  void  by  the  statute  of  frauds;  (]02  Am.  St.  Rep.. 
241 )  on  contract  for  sale  of  land  within  statute  of  frauds. 
_  Part  performance;  quantum  meriiit. 

Cited  in  Daily  v.  Minnick,  117  Towa,  569,  60  L.  R.  A.  843.  91  N.  W.  913,  holding 
performance  of  consideration  for  conveyance  of  land  by  naming  child  after  owner- 
takes  it  out  of  statute  of  frauds;  Leitgabel  v.  Belt,  108  Wis.  108,  83  N.  W.  1111, 
holding  that  evidence  sustained  agreement  to  pay  niece,  member  of  decedent's 
family,  for  services;  Kessler's  Estate,  87  Wis.  664.  41  Am.  St.  Rep.  74,  59  N.  W. 
129,  holding  agreement  to  pay  nephew  living  with  aunt,  for  services  in  working 
farm  and  managing  property,  can  be  proved  by  declaration  and  admission ;  Todd 
v.  Bettingen,  98  Minn.  174,  107  N.  W.  1049,  8  A.  &  E.  Ann.  Cas.  960,  holding 
an  oral  agreement  to  exchange  stock  for  stock  and  realty  is  an  entire  contract 
and  a  performance  of  the  exchange  to  the  extent  of  the  stock  does  not  take  the- 
agreement  out  of  statute  of  frauds,  the  realty  not  passing  by  oral  agreement,, 
the  whole  agreement  is  void;  Horton  v.  Stegmyer,  99  C.  C.  A.  332,  175  Fed.  700, 
holding  an  oral  agreement  to  devise  real  property  or  real  and  personal  property 
is  void  under  statute  of  frauds,  but  a  delivery  of  possession  of  realty  to  proposed 
devisee  will  take  promise  out  of  the  statute;  Henrikson  v.  Henrikson,  143  Wis. 
318,  33  L.R.A. (N.S.)  537,  127  N.  W.  962,  granting  specific  performance  of  oral 
contract  by  one  cotenant  to  convey  his  interest  to  another  on  deatli  of  life  tenant, . 
where  grantee  builds  home,  though  he  does  not  take  possession. 

Cited  in  note   (6  L.  R.  A.  702)   as  to  when  promises  not  implied. 

Distinguished  in  Cincinnati,   S.   &  C.   R.   Co.  v.   Bensley,   19   L.  R.   A.   802,   2 
C.  C.  A.  487,  6  U.  S.  App.  115,  51  Fed.  746.  holding  subscriptions  to  building  on 
condition  of  completion  within  specified  time  not  enforceable  on  failure  to  com- 
plete within  such  time  though  value  of  subscriber's  property  greatly  enhanced  . 
by  its  construction. 
Implication  of  agreement  to  pay  for  services  of  relative. 

Cited  in  notes    (11  L.R.A.(N.S.)    885,  895,  898)    on  implication  of  agreement 
to  pay  for  services  of  relative  or  member  of  household;    (133  Am.  St.  Rep.  252,. 
255)    on  presumption  of  gratuitous  services  by  relations. 

4  L.  R.  A.  60,  RENO  SMELTING  MILL.  &  REDUCTION  WORKS  v.  STEVEN- 
SON, 20  Nev.  269,  19  Am.  St.  Rep.  364,  21  Pac.  317. 
Adoption  of  English  common   law. 

Cited  in  notes   (22  L.  R.  A.  503,  505,  506)    on  adoption  of  the  common  law  in 
the  United  States. 
—  Riparian    rights. 

Approved  in  Twaddle  v.  Winters,  29  Nev.  105,  85  Pac.  280,  holding  that  land 
patents,  issued  prior  to  congressional  adoption  of  doctrine  of  prior  appropria- 
tion of  running  water  in  Nevada  do  not  give  such  patentees  in  that  state  com- 
mon law  riparian  rights  to  water  previously  appropriated. 

Cited  in  Union  Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  92;  Bliss  v.  Grayson,  24 
Nev.  456,  56  Pac.  231;  Drake  v.  Earhart,  2  Idaho,  724,  23  Pac.  541,  —  holding- 


GOT  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  65 

rights  of  riparian  proprietor  limited  by  prior  appropriation;  Slattery  v.  Harley, 
58  Xeb.  577,  79  X.  W.  151,  raising,  without  deciding,  rights  of  riparian  owner 
as  against  use  for  irrigation;  Willey  v.  Decker,  11  \Vyo.  517,  73  Pac.  210,  hold- 
ing common-law  doctrine  as  to  riparian  rights  inapplicable  to  conditions  in 
Wyoming;  Fitzpatrick  v.  Montgomery,  20  Mont.  186,  63  Am.  St.  Rep.  622,  50 
Pac.  416,  upholding  doctrine  of  right  to  water  by  prior  appropriation';  McFarland 
v.  Alaska  Perseverance  Min.  Co.  3  Alaska,  331,  holding  that  where  a  riparian 
right  claimed  is  repugnant  to  the  doctrine  of  appropriation  unsuited  to 
conditions  of  the  country  and  in  direct  conflict  with  rules  and  usages  based 
thereon  it  will  not  be  allowed;  Boquillas  Land  &  Cattle  Co.  v.  St.  David  Co-op. 
Commercial  &  Development  Co.  11  Ariz.  135,  89  Pac.  504,  holding  that  the  com- 
mon law  rule  that  only  riparian  owners  could  divert  water  from  streams  for 
irrigation  purposes  being  inconsistent  with  the  local  Bill  of  Rights  does  not 
apply;  Drake  v.  Earhart,  2  Idaho,  757,  23  Pac.  541,  holding  that  under  act  of  Con- 
gress patentees  of  land  take  subject  to  rights  of  prior  appropriator  of  water  in 
stream  running  through  such  land  to  extent  of  such  appropriation;  Hough  v. 
Porter,  51  Or.  386,  98  Pac.  1083,  as  overruling  an  earlier  Xevada  case  adhering 
to  common-law  doctrine  of  riparian  rights  and  establishing  the  doctrine  of  prior 
appropriation;  Anderson  v.  Bassman,  140  Fed.  21,  as  approving  a  holding  that 
the  doctrine  of  prior  appropriation  without  respect  to  location  of  lands,  is  in 
force  in  Xevada  and  that  common-law  rule  of  riparian  rights  does  not  apply. 

Cited  in  notes  (8  L.  R.  A.  578)  on  property  in  unnavigable  lakes;  (30  L.  R. 
A.  679)  on  right  of  prior  appropriator  of  water;  (20  Am.  St.  Rep.  225)  on  ri- 
parian rights;  (25  Am.  St.  Rep.  254)  on  rights  of  prior  appropriator  of  water; 
(10  Eng.  Rul.  Cas.  218)  on  riparian  owner's  right  to  use  of  stream. 

Distinguished  in  Huber  v.  Merkel,  117  Wis.  365,  62  L.  R.  A.  594,  98  Am.  St. 
Rep.  933,  94  N.  W.  354,  denying  power  of  legislature  to  impair  right  of  owner 
of  land  to  water  from  artesian  well. 

Disapproved  in  Clark  v.  Cambridge  &  A.  Irrig.  &  Improv.  Co.  45  Xeb.  806,  64 
X.  W.  239,  and  Lone  Tree  Ditch  Co.  v.  Cyclone  Ditch  Co.  15  S.  D.  529,  91  X.  W. 
352,  holding  common-law  riparian  rights  prevail,  as  modified  by  statute;  Craw- 
ford Co.  v.  Hall,  67  Xeb.  335,  60  L.  R.  A.  896,  108  Am.  St.  Rep.  647,  93  X.  W. 
781,  holding  that  common-law  doctrine  respecting  riparian  rights  prevails  in 
Nebraska. 

4  L.  R.  A.  65,  STATE  ex  rel.  HOLT  v.  DEXNY,  118  Ind.  449,  21  N.  E.  274. 
Authenticity    of    law. 

Cited  in  State  ex  rel  Benton  County  v.  Boice,  140  Ind.  513,  40  N.  E.  113,  hold- 
ing terms  of  authenticated,  enrolled  bill  conclusive:  Western  U.  Teleg.  Co.  v. 
Taggart,  141  Ind.  284,  60  L.  R.  A.  683,  40  X.  E.  1051.  holding  authenticated,  en- 
rolled bill  conclusive  evidence  of  due  enactment. 

Cited  in  note   (40  L.R.A.  (X.S.)   34,  38)   on  conclusiveness  of  enrolled  bill. 

Distinguished  in  State  ex  rel.  Coffin  v.  Howell.  26  Xev.  102,  64  Pac.  466,  hold- 
ing bill  passed  over  governor's  veto  invalidated  by  failure  of  presiding  officers  to 
sign  it. 
"Town"   inclusive   of  cities. 

Cited  in  Indianapolis  v.  Higgins,   141   Ind.  9,  40  N.  E.  671,  holding  cities  in- 
cluded within  statute  for  protection  of  sidewalks  in  "towns." 
Seimrtition   of  Kovernmental   powers. 

Cited  in  Parker  v.  State,  135  Ind.  536,  23  L.  R.  A.  859,  35  X.  E.  179,  holding- 
stay  pending  appeal  in  capital  case  not  within  governor's  constitutional  power  to 
reprieve;  Hovey  v.  State,  127  Ind.  598,  11  L.  R.  A.  767,  22  Am.  St.  Rep.  663,  27 
N.  E.  175,  holding  mandamus  will  not  lie  to  compel  action  by  chief  executive  of 


4  L.R.A.  65]  L.  R.  A.  CASES  AS  AUTHORITIES.  608 

state;   State  ex  rel.  Young  v.  Brill,  100  Minn.  526,  111   X.  W.  639,  10  A.  &  E. 
Ann.  Cas.  425,  holding  a  statute,  unconstitutional,  providing  for  appointment  by 
court  of   public   officers   other  than   those   necessarily   connected   with   the   judi- 
ciary, such  appointments  belonging  to  another  department  of  government. 
Legislative   appointments. 

Cited  in  State  ex  rel.  Yancey  v.  Hyde,  121  Ind.  29,  22  N.  E.  644,  holding  gov- 
ernor may  fill  state  office  upon  creation  by  legislature,  which  attempted  to  put 
power  of  appointment  thereto  in  its  appointee;  State  ex  rel.  Collett  v.  Gorby,  122 
Ind.  20,  23  N.  E.  678  (distinguished  in  dissenting  opinion,  p.  30),  majority  hold- 
ing administrative  state  office,  to  be  rilled  indefinitely  by  legislative  appoint- 
ment, vacant  at  creation  and  subject  to  governor's  appointing  power;  State 
ex  rel.  Worrell  v.  Peelle,  121  Ind.  506,  22  N.  E.  654,  and  French  v.  State,  141  Ind. 
624,  29  L.  R.  A.  115,  41  N.  E.  2,  holding  that  legislature  may  appoint  to  office 
existing,  but  appointment  to  which  not  provided  for,  at  adoption  of  constitu- 
tion authorizing  choice  in  manner  as  now  or  hereafter  provided  by  law,  and 
which  otherwise  refers  to  legislative  appointments;  State  ex  rel.  Taylor  v.  Mount, 
151  Ind.  687,  51  N.  E.  417,  holding  legislative  extension  of  terms  of  incumbents 
not  within  constitutional  provision  for  choosing  all  officers  in  manner  as  may 
be  prescribed  by  law;  State  ex  rel.  Lamar  v.  Dillon,  32  Fla.  593,  22  L.  R.  A.  141, 
14  So.  383,  holding  legislative  designation  of  commissioners  to  prepare  for,  hold, 
and  declare  result  of  an  initial  municipal  election,  not  executive  function ;  Purnell 
v.  Mann,  105  Ky.  116,  50  S.  W.  264  (dissenting  opinion),  majority  holding  selec- 
tion of  commissioners  for  coming  election,  by  legislative  appointees,  not  execu- 
tive function  under  constitutional  power  to  provide  for  voting,  determining  elec- 
tions, and  making  certificates;  Pratt  v.  Breckinridge,  112  Ky.  11,  65  S.  W.  136, 
holding  void,  provision  in  lawr  for  appointment  •  of  election  commissioners  by 
legislature;  Richardson  v.  Young,  122  Tenn.  502,  125  S.  W.  664,  holding  valid,  act 
authorizing  legislature  to  appoint  board  of  elections. 

Cited  in  footnotes  to  People  ex  rel.  Richardson  v.  Henderson.  22  L.  R.  A.  751, 
which  denies  inherent  power  of  the  executive  to  appoint  officers ;  Fox  v.  McDonald, 
21  L.  R.  A.  529,  which  holds  power  to  appoint  to  office  to  fill  vacancy  not  inherent 
in  governor;  Johnson  v.  State,  38  L.  R.  A.  373,  which  holds  statute  depriving 
governor  of  power  to  appoint  judges  of  inferior  court  by  changing  its  name 
void. 
Rigrht  of  local  self-government. 

Cited  in  State  ex  rel.  Geake  v.  Fox,  158  Ind.  128,  56  L.  R.  A.  895,  63  N.  E.  19, 
holding  municipality's  fundamental  rights  infringed  by  gubernatorial  appoint- 
ment of  fire  and  inspection  commissioners;  State  ex  rel.  Atty.  Gen.  v.  Moores,  55 
Neb.  511,  41  L.  R.  A.  634,  76  N.  W.  175  (limited  in  dissenting  opinion),  holding 
legislature  cannot  deprive  state  of  local  self-government  by  authorizing  governor 
to  appoint  metropolitan  fire  and  police  commissioners;  Lexington  v.  Thompson, 
113  Ky.  551,  57  L.R.A.  778,  101  Am.  St.  Rep.  361,  68  S.  W.  477,  hold- 
ing legislative  determination  of  salaries  of  municipal  firemen  void  as  per- 
taining to  local  government;  State  ex  rel.  Clark  v.  Haworth,  122  Ind.  510, 
7  L.  R.  A.  256,  23  X.  E.  946  (dissenting  opinion),  majority  holding  uniform 
text-book  law  no  infringement  upon  right  of  local  self-government;  State  ex  rel. 
Law  v.  Blend,  121  Ind.  518,  16  Am.  St.  Rep.  411,  23  X.  E.  511,  uphold- 
ing act  of  legislature  creating  board  of  metropolitan  police  in  all  cities  of 
specified  size;  Morris  v.  Switzerland  County,  131  Ind.  287,  31  N.  E.  77, 
holding  county  not  liable  for  improper  management  of  prison,  unless  statu- 
tory; Jasper  County  v.  Allman,  142  Ind.  578,  39  L.  R.  A.  62,  42  N.  E.  206,  holding 
county  not  liable  for  negligent  maintenance  of  bridge;,  unless  statutory;  State 


609  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  65 

ex  rel.  Workman  v.  Goldthait,  172  Ind.  219,  87  X.  E.  133,  holding  that  the 
legislature  may  properly  require  and  specify  qualifications  to  holding  any  public 
office  not  provided  for  by  state  constitution,  such  as  county  assessor  or  council- 
man; State  ex  rel.  Gerry  v.  Edwards,  42  Mont.  147,  32  L.R.A.(X.S.)  1082,  111 
Pac.  734.  Ann.  Cas.  1912A,  1063,  holding  that  park  board  appointed  by  governor 
is  not  corporate  authority  of  municipality;  State  ex  rel.  Williams  v.  Samuelson, 
131  Wis.  515,  111  X.  W.  712,  holding  that  a  legislative  requirement  of  four 
years  residence  in  county  for  a  candidate  for  office  of  county  supervisor  of  as- 
sessments, an  office  not  provided  for  by  constitution,  is  constitutional;  Ex  parte 
Lewis,  45  Tex.  Crim.  Rep.  20,  108  Am.  St.  Rep.  929,  73  S.  W.  811,  holding  that 
a  statute  providing  for  appointment  of  three  out  of  five  commissioners  as  a 
city  governing  board  by  the  governor  is  a  violation  of  the  constitutional  right 
to  local  self  government;  Ex  parte  Anderson,  46  Tex.  Crim.  Rep.  390,  81  S.  W. 
973,  on  construction  of  constitution  so  as  not  to  be  a  surrender  of  right  to 
local  self  government  but  as  a  restriction  to  the  powers  delegated  therein. 

Cited  in  footnotes  to  State  ex  rel.  McCausland  v.  Freeman,  47  L.  R.  A.  67, 
which  sustains  statute  arbitrarily  establishing  high  school  and  requiring  its 
maintenance  by  people  of  county;  Davock  v.  Moore,  28  L.  R.  A.  783,  which  sus- 
tains legislative  power  to  provide  for  city  board  of  health  with  power  to  incur 
expenses  without  city's  consent. 

Cited  in  notes  (15  L.R.A.  (X.S.)  576)  on  state  control  of  municipal  fire  de- 
partment; (32  L.R.A. (X.S.)  534)  on  local  option  law  as  affecting  charter  power 
of  municipality  to  regulate  liquor  traffic. 

Uistinginshed  in  Cones  v.  Benton  County,  137  Ind.  407,  37  X.  E.  272,  holding 
county  not  impliedly  liable  for  negligence  in  construction  and  repair  of  free 
gravel  road ;  State  ex  rel.  Hendricks  v.  Marion  County,  170  Ind.  603,  82  X.  E.  482, 
holding  that  a  statute  taking  construction  of  public  highways  from  control  of 
county  commissioners  not  a  violation  of  constitutional  right  to  local  self  govern* 
ment,  such  right  not  applying  to  counties  as  a  governmental  unit;  Brown  v. 
Galveston.  97  Tex.  12,  75  S.  W.  488,  denying  the  inherent  right  of  the  people  to 
local  self  government  based  on  history  and  tradition  alone  and  not  carried 
into  the  Constitution. 
State  control  of  police. 

Cited  in  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind.  436,  14  L.  R.  A.  568,  29 
N.  E.  595,  upholding  power  of  legislature  to  provide  for  appointment  to  munici- 
pal board  of  police;  State  ex  rel.  Law  v.  Blend,  121  Ind.  521,  16  Am.  St.  Rep. 
411,  23  X.  E.  511,  holding  state  may  prescribe  manner  of  selecting  municipal 
police  force;  Horton  v.  Xewport,  27  R.  I.  291,  1  L.R.A.(N.S.)  518,  61  Atl.  759, 
S  A.  &  E.  Ann.  Cas.  1097,  holding  legislative  regulation  of  city  police  in  so  far 
«.8  it  constitutes  a  part  of  the  state  government,  not  unconstitutional  as  a 
deprivation  of  local  self  government. 
Vneonstitutionality  of  portion  of  statute. 

Cited  in  Morris  v.  Powell,  125  Ind.  296,  9  L.  R.  A.  331,  25  N.  E.  221,  holding 
section  void  because  of  unconstitutionally  of  certain  provisions  therein;  Griffin 
v.  State,  119  Ind.  522,  22  X.  E.  7,  holding  act  creating  system  of  court  reporting 
invalid  because  based  upon  unconstitutional  requirement  that  judges  prepare 
syllabi;  State  ex  rel.  Geake  v.  Fox,  158  Ind.  128,  56  L.  R.  A.  895,  63  X.  E.  19, 
holding  act  for  appointment  of  board  for  fire  and  police  departments  void  for  in- 
validity of  former;  State  v.  Gerhardt,  145  Ind.  486,  33  L.  R.  A.  329,  44  X.  E.  469 
(dissenting  opinion),  majority  holding  statute  not  invalid  because  of  unconstitu- 
tionally of  independent  provisions;  State  ex  rel.  Law  v.  Blend,  121  Ind.  521, 
16  Am.  St.  Rep.  411,  23  X.  E.  511,  holding  act  creating  board  of  metropolitan 
police  valid,  although  provision  for  nonpartisan  appointments  is  unconstitu- 
L.R.A.  Au.  Vol.  I.— 39. 


4  L.R.A.  65]  L.  R.  A.  CASES  AS  AUTHORITIES.  010 

tional;  Northern  P.  R.  Co.  v.  Barnes,  2  X.  D.  385,  51  X.  W.  386  (dissenting 
opinion),  as  to  rule  that  all  parts  of  act  so  dependent,  conditional,  or  connected 
as  to  have  been  intended  as  a  whole,  must  fall  if  part  is  unconstitutional;  Swartz 
v.  Lake  County,  158  Ind.  152,  63  X.  E.  31,  holding  entire  act  not  invalidated  by 
unconstitutional  amendment;  Xewton  County  v.  State,  161  Ind.  627,  69  X.  E.  442, 
holding  statute  for  relocation  of  county  seats  invalidated  by  unconstitutional 
provision  relative  to  building  courthouses;  Owen  County  v.  Spangler,  159  Ind. 
582,  65  N.  E.  743,  holding  statute  to  validate  bond  issue  rendered  void  by  un- 
constitutionally of  dependent  portions  thereof. 
Legislative  restrictions  on  right  to  hold  office. 

Cited  in  notes    (55  Am.  St.  Rep.  374)    on  legislative  restrictions  on  right  to 
hold  office;    (32  L.R.A. (N".S.)    835)    on  constitutionality  of  statute  making  resi- 
dence qualification  of  public  officer. 
Appointment  from  two  parties. 

Cited  in  State  ex  rel.  Law  v.  Blend,  121  Ind.  522,  16  Am.  St.  Rep.  411,  23  X.  E. 
511,  holding  provision  for  appointment  of  police  officers  and  patrolmen  equally 
from  two  leading  political  parties  invalid  for  disfranchisement;  Rathbone  v. 
Wirth,  150  N.  Y.  492,  34  L.  R.  A.  420,  footnote,  p.  408,  45  N.  E.  15,  which  holds 
void  statute  for  bipartisan  police  board  of  four  members,  to  be  selected  by  all 
members  of  common  council  voting  for  two  members  only;  Shaw  v.  Marshalltown, 
131  Iowa,  150,  10  L.R.A.  (N.S.)  835,  104  X.  W.  1121,  9  A.  &  E.  Ann.  Cas.  1039 
(dissenting  opinion),  on  validity  of  appointment  of  city  police  and  firemen  from 
two  leading  political  parties  of  city;  Render  v.  Louisville,  142  Ky.  416,  32 
L.R.A.  (X.S.)  534,  134  S.  W.  458,  holding  valid,  provision  that  members  of  munic- 
ipal hospital  commission  shall  be  chosen  from  two  dominant  political  parties. 
Title  of  act. 

Cited  in  footnote  to  State  v.  Snow,  11  L.  R.  A.  355,  which  holds  prohibition 
of  sale  of  article  intended  for  use  as  lard,  containing  other  ingredients  than 
swine's  flesh  within  title. 

Cited  in  note  (4  L.R.A.  93)  on  construction  of  constitutional  requirement  that 
title  of  act  must  embrace  its  subject. 

4  L.  R.  A.  79,  STATE  ex  rel.  JAMESON  v.  DENNY,  118  Ind.  382,  21  N.  E.  252. 
Local   self-government. 

Cited  in  State  ex  rel.  Holt  v.  Denny,  118  Ind.  480,  4  L.  R.  A.  79,  21  X.  E. 
274  (dissenting  opinion),  and  Evansville  v.  State,  118  Ind.  448,  4  L.  R.  A.  101, 
21  N.  E.  267  (dissenting  opinion),  majority  holding  in  each  case  that  act  placing 
police  and  fire  departments  of  cities  under  commissioners  elected  by  legislature 
void;  State  ex  rel.  Atty.  Gen.  v.  Moores,  55  Xeb.  508,  41  L.  R.  A.  633,  76  X.  \V. 
175,  holding  act  conferring  on  governor  right  to  appoint  city  fire  and  police  com- 
missioners invalid;  State  ex  rel.  Geake  v.  Fox,  158  Ind.  128,  56  L.  R.  A.  895,  63 
N.  E.  19,  holding  power  to  control  city  fire  department  cannot  be  vested  in  board 
appointed  by  governor;  State  ex  rel.  White  v.  Barker,  116  Iowa,  104,  57  L.  1!.  A. 
250,  93  Am.  St.  Rep.  222,  89  N.  W.  204,  holding  that  management  of  water  system 
cannot  be  taken  from  municipality;  Lexington  v.  Thompson,  113  Ky.  551,  57  L.  R. 
A.  778,  68  S.  W.  477,  holding  legislature  cannot  fix  salaries  of  city  firemen  r 
Forsyth  v.  Hammond,  18  C.  C.  A.  179,  34  U.  S.  App.  352,  71  Fed.  446,  holding  act 
giving  right  to  appeal  to  courts  from  order  of  county  commissioners  enlarging 
city  boundaries  unconstitutional;  Rathbone  v.  Wirth,  6  App.  Div.  291,  40  X.  Y. 
Supp.  535,  holding  act  giving  minority  equality  with  majority  in  electing  police 
commissioners  unconstitutional:  State  ex  rel.  Clark  v.  Haworth.  122  Ind.  509,  T 
L.  R.  A.  255,  23  N.  E.  946  (dissenting  opinion),  majority  act  prescribing  text- 


611  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A,  79 

books  for  public  schools,  and  regulating  method  of  procuring  them,  valid;  More- 
land  v.  Millen,  126  Mich.  398,  85  N.  W.  882,  upholding  act  so  far  as  it  created 
department  of  public  works  for  city  and  provided  for  appointment  of  head  there- 
of by  the  mayor;  Ex  parte  Corliss,  16  N.  D.  478,  114  N.  W.  962,  on  the  implied 
right  of  local  self  government  as  applied  to  cities  and  towns;  Ex  parte  Anderson, 
46  Tex.  Crim.  Rep.  394,  81  S.  W.  973;  McKinster  v.  Sager,  163  Ind.  675,  68  L.R.A. 
(X.S.)  276,  106  Am.  St.  Rep.  268,  72  N.  E.  854, — on  the  rule  that  powers  not 
delegated  by  constitution  remain  by  implication  in  the  people;  Lexington  v. 
Thompson,  113  &y.  551,  57  L.R.A.  775,  101  Am.  St.  Rep.  361,  68  S.  W.  477,  hold- 
ing legislative  determination  of  salaries  of  municipal  fireman  void  as  pertaining 
to  local  government;  State  ex  rel.  Dithmar  v.  Bunnell,  131  Wis.  215,  110  N.  W. 
177,  11  A.  &  E.  Ann.  Cas.  560,  holding  that  legislature  may  not  bar  a  person 
elected  as  prescribed  by  law  and  appoint  a  man  in  his  place,  though  such  body 
has  the  right  to  prescribe  laws  for  the  election  or  appointment;  Hayes'  Petition, 
139  Wis.  169,  120  N.  W.  834,  holding  that  the  policy  of  the  law  is  to  leave 
local  matters  respecting  the  opening,  regulating  and  vacating  of  streets  to  the 
local  authorities. 

Cited  in  footnotes  to  Davock  v.  Moore,  28  L.  R.  A.  783,  which  sustains  legis- 
lative power  to  provide  for  city  board  of  health  with  power  to  incur  expenses 
without  city's  consent;  State  ex  rel.  McCausland  v.  Freeman,  47  L.  R.  A.  67, 
which  sustains  statute  arbitrarily  establishing  high  school  and  requiring  its 
maintenance  by  people  of  county;  Rathbone  v.  Wirth,  34  L.  R.  A.  408.  which 
holds  void  statute  for  bipartisan  police  board  of  four  members,  to  be  selected  by 
all  members  of  common  council  voting  for  two  members  only. 

Cited  in  note  (48  L.  R.  A.  480)  on  power  of  legislature  as  to  officers  and  local 
administration  of  municipalities. 

Distinguished  in  Newport  v.  Horton,  22  R.  I.  207,  50  L.  R.  A.  338,  47  Atl.  312, 
holding  act  providing  for  appointment  by  governor  of  police  commissioners  for 
city  valid:  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind.  436,  14  L.  R.  A.  568, 
29  X.  E.  595,  holding  statute  providing  for  appointment  of  police  commissioners 
by  state  officers  not  invasion  of  local  autonomy ;  State  ex  rel.  Hendricks  v.  Marion 
County,  170  Ind.  603,  82  N.  E.  482,  holding  a  statute  taking  control  of  public 
highways  from  board  of  county  commissioners,  not  a  violation  or  right  to  local 
self  government,  such  rights  applying  only  to  towns  and  cities. 

Not  followed  in  Americus  v.  Perry,  114  Ga.  879,  57  L.  R.  A.  234,  40  S.  E. 
1004,  holding  that  legislature  may  vest  control  of  city  police  in  board  not  elected 
by  city. 
Independence  of  governmental  branches. 

Cited  in  Hovey  v.  State,  127  Ind.  598,  11  L.  R.  A.  767,  22  Am.  St.  Rep.  663, 
27  N.  E.  175,  holding  that  courts  cannot  compel  performance  of  executive  act  by 
governor;  Parker  v.  State,  135  Ind.  536,  23  L.  R.  A.  859,  35  N.  E.  179,  holding 
stay  of  execution  in  capital  case  by  court  pending  appeal  not  usurpation  of  gov- 
ernor's power  to  reprieve;  Purnell  v.  Mann,  105  Ky.  116,  50  S.  W.  264  (dissenting 
opinion),  majority  holding  appointment  of  county  election  commissioners  by 
commission  appointed  by  legislature  no  encroachment  upon  executive  powers; 
Langenberg  v.  Decker.  131  Ind.  479,  16  L.  R.  A.  112,  31  N.  E.  190,  holding  power 
to  punish  for  contempt  not  conferable  on  tax  commissioners;  State  ex  rel.  Terre 
Haute  v.  Kolsem,  130  Ind.  442,  14  L.  R.  A.  570,  29  N.  E.  595,  holding  necessity 
for  special  law  a  legislature  question  not  reviewable  by  courts;  People  v.  Sals- 
bury.  134  Mich.  546,  96  N.  W.  936,  holding  a  city  attorney  to  be  an  executive 
or  judicial  officer  within  the  meaning  of  statute  providing  punishment  for  ac- 
ceptance of  bribes  by  such  officers. 


4  L.R.A.  79]  L.  R    A.  CASES   AS  AUTHORITIES.  U12 

Power  of  appointing  officers. 

Cited  in  State  ex  rel.  Harley  v.  Lindemann,  ]32  Wis.  52,  111  N.  W.  214,  holding 
void,  act  providing  for  appointment  by  circuit  judges  of  city  school  directors. 

Cited  in  footnotes  to  Fox  v.  McDonald,  21  L.  R.  A.  529,  which  holds  power  to 
appoint  to  office  to  fill  vacancy  not  inherent  in  governor;  People  ex  rel.  Richard- 
son v.  Henderson,  22  L.  R.  A.  751,  which  denies  inherent  power  of  the  executive 
to  appoint  officers;  Johnson  v.  State,  38  L.  R.  A.  373,  which  holds  statute  de- 
priving governor  of  power  to  appoint  judges  of  inferior  court  by  changing  its 
name  void. 

Cited  in  notes   (16  L.R.A.  737)   on  constitutional  power  of  courts  or  judges  to 
appoint  officers;    (13  Am.  St.  Rep.  132,  146)   on  legislative  power  to  appoint  to 
office. 
Legislature's   power   of   appointment. 

Cited  in  State  ex  rel.  Worrell  v.  Peelle,  121  Ind.  506,  22  N.  E.  654,  and  State 
ex  rel  Yancey  v.  Hyde,  121  Ind.  36,  22  N.  E.  644,  holding  that  constitutional 
provision  conferring  upon  legislature  power  to  prescribe  manner  of,  does  not  in- 
clude power  of,  appointment;  State  ex  rel.  Yancey  v.  Hyde,  121  Ind.  31,  22  N.  E, 
644,  holding  that  legislature  cannot  fill  office  created  by  it,  unless  incident  to  legis- 
lative power;  State  ex  rel.  Collett  v.  Gorby,  122  Ind.  19,  23  N.  E.  678  (distin 
guished  in  dissenting  opinion,  p.  30),  holding  that  legislature  cannot  appoint 
administrative  state  officer;  State  ex  rel.  Taylor  v.  Mount,  151  Ind.  687,  51  N.  E. 
417,  holding  that  legislature  cannot  extend  term  of  judges  theretofore  elected; 
Pratt  v.  Breckinridge,  112  Ky.  11,  65  S.  W.  136,  holding  void,  provision  in  law 
for  appointment  of  election  commissioners  by  legislature;  Richardson  v.  Young, 
122  Tenn.  502,  125  S.  W.  664;  holding  valid,  act  authorizing  legislature  to 
appoint  board  of  elections. 

Distinguished  in  French  v.  State,  141  Ind.  624,  29  L.  R.  A.  115,  41  N.  E.  2, 
holding  that  constitutional  provision  permitting  legislature  to  prescribe  manner 
of  appointing  officers  authorizes  designation  of  functionary  to  make  appointment; 
Hovey  v.  State,  119  Ind.  390,  21  N.  E.  890.  holding  legislature  may  appoint  of- 
ficers of  state  benevolent  institutions. 
Review  of  constitutional  questions  by  court*. 

Cited  in  Henderson  v.  State,  137  Ind.  557,  24  L.  R.  A.  473,  36  N.  E.  257,  hold- 
ing that  courts  will  pass  upon  constitutional  question  only  when  necessary  to 
decision. 

Cited  in  notes  (4  L.  R.  A.  65,  4  L.  R.  A.  93)  on  constitutional  construction. 
Health   board  must   authorize  all   expenditures. 

Cited  in  Martin  v.  Montgomery  County,  27  Ind.  App.  100,  60  N.  E.  998,  holding 
that  executive  officer  of  health  board  cannot,  without  authority,  incur  indebt- 
edness. 

4  L.  R.  A.  93,  EVANSVILLE  v.  STATE,  118  Ind.  426,  21  N.  E.  267. 
Legislative   right    to    determine    necessity    for   general    law. 

Cited  in  Vigo  County  v.  Davis.  136  Ind.  543,  22  L.  R.  A.  527,  36  N.  E.  141, 
holding  act  permitting  county  commissioners  within  certain  limits  to  fix  compen 
nation  of  judges,  constitutional;  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind. 
436,  14  L.  R.  A.  569,  29  N.  E.  595,  holding  legislature  proper  judge  as  to  whether 
law  could  properly  be  made  general  and  uniform;  Indianapolis  v.  Navin,  151  Ind. 
155,  41  L.  R.  A.  343,  47  N.  E.  525,  holding  that  whether  act  relating  to  subject 
not  enumerated  in  §  23,  art.  4,  can  be  made  general,  question  for  legislature;  Ed- 
monds v.  Herbrandson,  2  N.  D.  282,  14  L.  R,  A.  730,  50  N.  W.  970,  holding  it  a 
purely  legislative  question  whether  general  or  special  law  should  be  enacted  under 


013  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  93 

Const,  art.  2,  §  70;  Stuart  v.  Kirley,  12  S.  D.  257,  81  N.  VV.  147,  holding  that 
legislature  must  determine  whether  general  law  can  be  made  applicable  to  subject 
unspecified  in  Constitution;  Smith  v.  Indianapolis  Street  R.  Co.  158  Ind.  437, 
63  N.  E.  849,  holding  act  of  legislature  in  passing  unforbidden  special  law  not 
reviewable;  State  ex  rel.  Smith  v.  Brown,  24  Okla.  445,  103  Pac.  762,  holding 
that  what  can  be  accomplished  by  general  or  special  legislation  is  left  to  leg- 
islature for  determination,  which  is  not  reviewable  by  courts. 

Cited  in  notes   (12  Am.  St.  Rep.  827;  15  Am.  St.  Rep.  75)   on  province  of  leg- 
islature to  determine  whether  general  or  special  statute  should  be  enacted;    (03 
Am.  St.  Rep.  108)   on  constitutional  inhibition  against  special  legislation  where 
general  law  can  be  made  applicable. 
Granting   of   special    privilege**   or    immunities. 

Cited  in  State  ex  rel.  Churchill  v.  Bemis,  45  Neb.  737,  64  N.  W.  348,  upholding 
act  providing  for  appointment  of  at  least  one  of  three  commissioners  from  each 
of  two  leading  political  parties;  Rathbone  v.  Wirth,  150  N.  Y.  485,  34  L.  R.  A. 
418,  footnote  p.  408,  45  N.  E.  15,  Affirming  6  App.  Div.  294,  40  N.  Y.  Supp.  535, 
holding  restriction  of  eligibility  to  office  of  police  commissioners  to  two  political 
parties  unconstitutional ;  Bowden  v.  Bedell,  68  N.  J.  L.  453,  53  Atl.  198,  holding 
unconstitutional  act  limiting  membership  in  board  as  to  political  parties;  State 
v.  Garbroski,  111  Iowa,  499,  56  L.  R.  A.  572,  82  Am.  St.  Rep.  524,  82  N.  W.  959, 
holding  exemption  of  Union  soldiers  from  payment  of  license  required  of  others 
in  like  occupations  unconstitutional;  Shaw  v.  Marshalltown,  131  Iowa,  149,  10 
L.R.A. (N.S.)  835,  104  N.  W.  1121,  9  A.  &  E.  Ann.  Cas.  1039  (dissenting  opinion) 
on  restriction  of  appointments  to  members  of  specified  political  parties;  Render  v. 
Louisville,  142  Ky.  416,  32  L.R.A. (N.S.)  534,  134  S.  W.  458,  upholding  pro- 
vision that  members  of  municipal  hospital  commission  shall  be  chosen  from  two 
dominant  political  parties. 

Cited  in  footnote  to  Rathbone  v.  Wirth,  34  L.  R.  A.  408,  which  holds  void, 
statute  for  bipartisan  police  board  of  four  members  to  be  selected  by  all  members 
of  common  council  voting  for  two  members  only. 

Cited  in  notes  (14  L.R.A.  581)  on  constitutional  equality  of  privileges,  im- 
munities, and  protection;  (32  L.R.A. (N.S.)  835)  on  constitutionality  of  statute 
making  residence  qualification  of  public  officer;  (55  Am.  St.  Rep.  373)  on  legis- 
lative restrictions  on  right  to  hold  office. 

Distinguished  in  McCarter  v.  McKelvey,  78  N.  J.  L.  7,  138  Am.  S.  Rep.  583, 
74  Atl.  316,  upholding  statute  prohibiting  appointment  of  more  than  a  certain 
proportion  of  members  of  municipal  board  from  same  political  party. 

Disapproved  in  State  ex  rel.  Jones. v.  Sargent,  145  Iowa,  307,  27  L.R.A. (N.S.) 
727,  139  Am.  St.  Rep.  439,  124  N.  W.  339,  holding  that  a  residential  qualification 
for  the  holding  of  an  office  imposed  by  legislature  is  not  unconstitutional. 
Right    of   local    self-government. 

Cited  in  Mode  v.  Beasley,  143  Ind.  315,  42  N.  E.  727,  upholding  power  of  leg- 
islature to  relocate  county  seat;  State  ex  rel.  Law  v.  Blend,  121  Ind.  518,  16  Am. 
St.  Rep.  411,  23  N.  E.  511,  upholding  act  of  legislature,  creating  board  of  metro- 
politan police  in  all  cities  of  specified  size;  Woods  v.  McCay,  144  Ind.  323,  33  L. 
R.  A.  99,  43  N.  E.  269,  upholding  act  creating  court  for  three  designated  counties; 
State  ex  rel.  Clark  v.  Haworth,  122  Ind.  510,  7  L.  R.  A.  256,  23  N.  E.  946  (dis- 
senting opinion),  majority  holding  power  over  schools  exclusively  legislative: 
State  ex  rel.  Geake  v.  Fox,  158  Ind.  128,  56  L.  R.  A.  895,  63  N.  E.  19,  holding  that 
legislature  cannot  authorize  governor  to  appoint  board  to  control  municipal  fire 
department;  Ex  parte  Corliss,  16  N.  D.  478,  114  N.  W.  962,  on  the  implied  right 
of  local  self  government  as  applied  to  cities  and  towns;  McDonald  v.  Louisville, 
113  Ky.  437,  68  S.  W.  413,  holding  that  a  statute  inconsistent  with  a  local 


I 


4  L.R.A.  93]  L.  R.  A.  CASES  AS  AUTHORITIES.  614 

discretionary  power  conferred  by  charter  on  such  locality  is  invalid;  Lexington 
v.  Thompson,  113  Ky .  551,  57  L.R.A.  775,  101  Am.  St.  Rep.  361,  68  S.  W.  477. 
holding  legislative  fixing  of  salaries  of  municipal  firemen  void  as  pertaining  to 
local  government;  Horton  v.  Newport,  27  R.  I.  291,  1  L.R.A. (N.S.)  518,  61  Atl. 
759,  8  A.  &  E.  Ann.  Cas.  1097,  holding  legislative  regulation  of  city  police  in  so 
far  as  it  constitutes  a  part  of  the  state  government  not  invalid  as  pertaining 
to  local  government. 

Cited  in  footnote  to  State  ex  rel.  McCausland  v.  Freeman,  47  L.  R.  A.  67,  which 
sustains  statute  arbitrarily  establishing  high  school  and  requiring  its  maintenance 
by  people  of  county. 

Cited  in  notes  (1  L.R.A. (N.S.)  515)  on  right  of  local  self-government;  legis- 
lative regulation  of  municipal  officers;  (15  L.R.A. (N.S.)  576)  on  state  control 
of  municipal  fire  department. 

Distinguished  in  State  ex  rel.  Hendricks  v.  Marion  County,  170  Ind.  603,  82 
N.  E.  482,  holding  a  statute  declaring  manner  of  obtaining  and  improving  public 
highways,  leaving  out  of  consideration  county  boards  of  commissioners  not  in- 
valid as  pertaining  to  self-government,  counties  as  municipalities  not  having 
self-government  rights. 

Disapproved  in  Americus  v.  Perry,  114  Ga.  879,  57  L.  R.  A.  234,  40  S.  E.  1004, 
holding  Constitution  does  not  guarantee  to  municipalities  absolute  right  of  self- 
government. 
Metropolitan    police    legiHlation. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Moores,  55  Neb.  511,  41  L.  R.  A.  634,  70  X. 
W.  175,  holding  that  legislature  cannot  confer  upon  governor  power  to  appoint 
fire  and  police  commissioners  for  metropolitan  cities;  Arnett  v.  State,  168  Ind. 
182,  8  L.R.A. (N.S.)  1193,  80  N.  E.  153,  holding  a  statute  providing  a  metropoli- 
tan police  force  for  certain  cities  is  not  unconstitutional  as  pertaining  to 
self-government  because  it  cast  burden  of  supporting  the  police  system  on  the 
municipality  and  denied  its  control  over  expenditure  of  funds  in  maintaining  it. 
Legislative,  executive,  and  judicial  powers. 

Cited  in  Hovey  v.  State,  127  Ind.  598,  11  L.  R.  A.  767,  22  Am.  St.  Rep.  663,  27 
N.  E.  175,  and  Parker  v.  State,  135  Ind.  536,  23  L.  R.  A.  859,  35  N.  E.  179,  hold- 
ing legislative,  executive,  and  judicial  powers  equally  co-ordinate  and  independ- 
ent; Sluder  v.  St.  Louis  Transit  Co.  189  Mo.  149,  5  L.R.A.(N.S.)  214,  88  S.  \\  . 
648,  on  the  meaning  and  definition  of  "legislative  power";  Oklahoma  City  v. 
Shields,  22  Okla.  305,  100  Pac.  559;  holding  that  the  question  whether  or  not  a 
measure  is  immediately  necessary  for  the  preservation  of  the  public  peace,  health 
or  safety,  rests  solely  with  the  legislature;  Richardson  v.  Young,  122  Tenn. 
502,  125  S.  W.  664,  holding  valid,  act  authorizing  legislature  to  appoint  board 
•of  elections. 

Cited  in  footnotes  to  Fox  v.  McDonald,  21  L.  R.  A.  529,  which  holds  power  to 
appoint  to  office  to  fill  vacancy  not  inherent  in  governor;  People  ex  rel.  Richard- 
son v.  Henderson,  22  L.  R.  A.  751,  which  denies  inherent  power  of  the  executive 
to  appoint  officers;  Johnson  v.  State,  38  L.  R.  A.  373,  which  holds  statute  depriv- 
ing governor  of  power  to  appoint  judges  of  inferior  court  by  changing  its  name 
•void;  Davock  v.  Moore,  28  L.  R.  A.  783,  which  sustains  legislative  power  to  pro- 
vide for  city  board  of  health  with  power  to  incur  expenses  without  city's  consent. 

Cited  in  notes  (16  L.  R.  A.  737)  on  constitutional  power  of  courts  or  judges  to 
appoint  officers;  (17  L.  R.  A.  842)  on  implied  restrictions  on  the  power  of  legis- 
lature-: i  48  L.  R.  A.  481),  on  power  of  the  legislature  to  impose  burdens  upon 
municipalities  and  to  control  their  local  administrations  and  property;  (13  Am. 
St.  Rep.  132)  on  legislative  power  to  appoint  to  office. 


615  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  93 

Lack  of  power  in  legislature  to  fill  vacant  offices. 

Cited  in  State  ex  rel.  Yancey  v.  Hyde,  121  Ind.  26,  22  N.  E.  644,  holding  act 
providing  for  appointment  of  chief  of  geological  department  by  director  elected 
by  legislature  unconstitutional;  State  ex  rel.  Worrell  v.  Peelle,  121  Ind.  506,  22 
N.  E.  654,  holding  legislature  cannot  elect  to  state  office;  State  ex  rel.  Collett  v. 
Gorby,  122  Ind.  20,  23  X.  E.  678,  holding  that  governor  could  appoint  director  of 
geology  to  fill  vacancy  until  general  election  by  people;  State  ex  rel.  Taylor  v. 
Mount,  151  Ind.  687,  51  N.  E.  417,  holding  provisions  in  law  continuing  judges 
in  office  beyond  time  for  which  elected,  unconstitutional. 
Appointment  of  officers  not  specified  in  Constitution. 

Cited  in  French  v.  State,  141  Ind.  624,  29  L.  R.  A.  115,  41  N.  E.  2,  holding  that 
general  assembly  may  appoint  to  all  offices  existing,  and  not  otherwise  provided 
for  on  adoption  of  Constitution;  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind. 
436,  14  L.  R.  A.  568,  29  N.  E.  595,  holding  that  legislature  has  power  to  provide 
for  appointment  of  municipal  board  of  police;  State  v.  Burnett,  119  Ind.  392,  21 
N.  E.  972  (dissenting  opinion),  majority  holding  legislature  may  appoint  and 
prescribe  qualifications  of  governing  officers  of  benevolent  institutions  of  state; 
State  ex  rel.  Lamar  v.  Dillon,  32  Fla.  593,  22  L.  R.  A.  141,  14  So.  383,  upholding 
power  of  legislature  to  name  temporary  election  commissioners;  Purnell  v.  Mann. 
105  Ky.  116.  50  S.  W.  264  (dissenting  opinion),  majority  upholding  act  providing 
for  selection  of  county  commissioners  of  election  by  state  commission  selected  by 
legislature;  Pratt  v.  Breckinridge,  112  Ky.  11,  65  S.  W.  136,  holding  void,  provi- 
sion in  law  for  appointment  of  election  commissioners  by  legislature. 

Not  followed  in  Ware  v.  Fitchburg,  200  Mass.  72,  85  N.  E.  951,  holding  that  a 
statute  prescribing  who  shall  be  agents  of  city  in  carrying  out  a  charitable  trust 
in  favor  of  city  and  mode  of  their  selection  is  valid  especially  when  expressly 
accepted  by  city. 
Inhibitions    by    implication. 

Cited  in  Denney  v.  State,  144  Ind.  513,  31  L.  R.  A.  730,  42  N.  E.  929,  holding 
apportionment  at  time  different  from  that  specified  therefor  in  Constitution 
void;  Capital  Bank  v.  School  Dist.  No.  53,  1  N.  D.  495,  48  N.  W.  363,  holding 
school  districts  restrained  from  exercise  of  powers  not  specifically  granted  or  nec- 
essarily implied;  Lexington  v.  Thompson,  113  Ky.  551,  57  L.  R.  A.  778,  101  Am. 
St.  Rep.  361,  68  S.  W.  477,  holding  legislature  cannot  fix  salaries  of  firemen  in 
municipalities;  Diamond  State  Iron  Co.  v.  Husbands,  8  Del.  Ch.  226,  68  Atl.  240, 
on  constitutional  inhibition  of  acts  of  Legislature  conflicting  either  expressly  or 
by  implication  with  some  provision  of  the  constitution;  Ex  parte  Anderson,  46 
Tex.  Crim.  Rep.  381,  81  S.  W.  973,  on  the  rule  that  powers  not  conferred  by  con- 
stitution on  the  departments  of  government  remain  by  implication  in  the  people. 
Title  of  net;  plurality  of  subject. 

Cited  in  footnotes  to  Thomas  v.  Wabash,  St.  L.  &  P.  R.  Co.  7  L.  R.  A.  145,  which 
holds  provision  limiting  rights  in  water  to  railroad  companies  owning  landings, 
not  within  title;  State  v.  Snow,  11  L.  R.  A.  355,  which  holds  prohibition  of  sale 
of  article  intended  for  use  as  lard,  containing  other  ingredients  than  swine's  flesh, 
within  title;  State  v.  Burgdoerfer,  14  L.  R.  A.  846,  which  holds  prohibition 
against  bookmaking  and  pool  selling  on  events  outside  of  state,  without  referring 
to  events  within  state,  expressed  by  title  "To  Prohibit  Bookmaking  and  Pool  Sell- 
ing;" Hronek  v.  People,  8  L.  R.  A.  837.  which  holds  only  one  subject  embraced  in 
sict  regulating  manufacture,  etc.,  of  explosives,  and  prescribing  punishment  for 
violation  of  same. 

Cited  in  notes  ( 7  L.  R.  A.  145)  on  constitutional  provision  as  to  title  of  act; 
<7  L.  R.  A.  309)  on  construction  of  railroads  in  streets  of  town  or  city;  constitu- 


4  L.R.A.  93]  L.  R.  A.  CASES  AS  AUTHORITIES.  616 

tional  provisions  as  to  title  of  act;    (8  L.R.A.  858)   on  title  of  act;    (12  Am.  St. 
Rep.  716)   on  title  and  subjectrmatter  of  statute. 
Passage    of    law. 

Distinguished  in  State  ex  rel.  Coffin  v.  Howell,  26  Nev.  102,  64  Pac.  466,  holding 
bill  passed  over  governor's  veto  invalidated  by  failure  of  presiding  officers  to  sign  it. 

4  L.  R.  A.  101,  STATE  ex  rel.  HOVEY  v.  NOBLE,  118  Ind.  350,  10  Am.  St.  Rep. 

143,  21  N.  E.  244. 
Delegation  and   separation  of  fundamental  powers   of  government. 

Cited  in  State  ex  rel.  Terre  Haute  v.  Kolsem,  130  Ind.  442,  14  L.  R.  A.  570,  29 
N.  E.  595,  holding  legislature  exclusive  judge  as  to  whether  general  law  can  be 
made  applicable  to  metropolitan  board  of  police;  State  ex  rel.  Yancey  v.  Hyde, 
121  Ind.  30,  22  N.  E.  644,  holding  act  cannot  deprive  chief  executive  of  power  to 
appoint  state  officer  by  delegating  power  of  appointment  to  another  officer;  Cargar 
v.  Fee,  119  Ind.  538,  21  N.  E.  1080,  holding  that  temporary  judge  cannot  delegate 
his  power;  Parker  v.  State,  135  Ind.  538,  23  L.  R.  A.  860,  35  N.  E.  179,  upholding 
power  of  appellate  court  to  grant  stay  of  execution  pending  appeal ;  State  ex 
rel.  Gibson  v.  Friedley,  135  Ind.  131,  21  L.  R.  A.  638,  34  N.  E.  872,  holding  that 
legislature  cannot  deprive  judge  of  office  by  abolishing  his  judicial  district;  State 
v.  Runyan,  130  Ind.  209,  29  N.  E.  779,  holding  that  township  trustee  cannot 
exercise  functions  of  court;  Ex  partc  Coombs,  38  Tex.  Grim.  Rep.  662,  44  S.  W. 
/  854,  holding  that  legislature  cannot  devest  constitutional  courts  of  tlioir  power; 
Ex  partc  Ginnochio,  30  Tex.  App.^  592,  593,  18  S.  W.  82,  holding  that  legislature 
cannot  control  judicial  power  distributed  by  Constitution;  State  v.  LeClair,  86  Me. 
530,  30  Atl.  7,  holding  act  permitting  clerk  of  court  to  make  preliminary  ex- 
amination and  issue  warrant  to  seize  liquor  valid;  Parker  v.  State,  133  Ind.  188, 
18  L.  R.  A.  572,  32  N.  E.  836,  holding  redistricting  and  apportionment  acts  in- 
valid; Johnston  v.  State,  128  Ind.  18,  12  L.  R.  A.  236,  25  Am.  St.  Rep.  412,  27  X. 
E.  422,  holding  act  providing  for  determination  of  elective  tie  vote  by  lot,  valid ; 
State  ex  rel.  Holman  v.  Roach,  123  Ind.  170,  24  N.  E.  106,  holding  surveyor  of 
ditches  not  entitled  to  per  diem  for  services  performed  by  deputies  which  were 
required  to  be  done  by  himself;  Chicago,  K.  &  W.  R.  Co.  v.  Abilene  Town  Site  Co. 
42  Kan.  109,  21  Pac.  1112,  holding  validity  of  acts  relating  to  condemnation  com- 
mission immaterial  when  parties  have  had  full  hearing  before  court;  Forsyth  v. 
Hammond,  18  C.  C.  A.  179,  34  U.  S.  App.  552,  71  Fed.  446,  holding  act  granting 
appeal  to  courts  from  determination  of  county  commissioners  annexing  territory 
to  city  invalid;  Hovey  v.  State,  127  Ind.  598,  11  L.  R.  A.  767,  22  Am.  St.  Rep. 
663,  27  N.  E.  175,  holding  governor's  decision  not  to  issue  commission  to  one 
claiming  to  be  elected  to  office,  final;  Langenberg  v.  Decker,  131  Ind.  479,  16  L.  R. 
A.  112,  31  N.  E.  190,  holding  power  to  punish  for  contempt  to  be  a  judicial  func- 
tion not  residing  in  board  of  tax  commissioners;  DeVotie  v.  McGerr,  14  Colo. 
581,  23  Pac.  980,  holding  validity  of  act  providing  for  supreme  court  conmiission 
not  involved;  State  ex  rel.  Taylor  v.  Mount,  151  Ind.  686,  51  N.  E.  417,  holding 
that  legislature  cannot  extend  term  of  elective  judges;  Butler  v.  Gage,  138  U.  S. 
59,  34  L.  ed.  872,  11  Sup.  Ct.  Rep.  235,  holding  Federal  question  not  involved  in 
relation  to  judicial  powers  of  commission;  Stults  v.  Allen  County,  168  Ind.  542, 
81  N".  E.  471,  11  A.  &  E.  Ann.  Cas.  1021,  holding  a  coroner  in  holding  an  inquest 
not  to  be  performing  a  judicial  function  and  a  county  board  may  question  the 
necessity  of  an  inquest;  State  ex  rel.  Walker  v.  Wagner,  170  Ind.  147,  82  N.  E. 
466.  15  A.  &  E.  Ann.  Cas.  1063.  holding  power  of  appointment  to  office  not  to  be 
legislative  but  the  power  to  name  the  body  or  persons  to  make  the  appoint- 
ment is  legislative;  Indianapolis  v.  State,  172  Ind.  476,  88  N.  E.  687.  holding 
/  an  act  requiring  circuit  courts  to  appoint  appraisers  to  make  reassessments  on 


617  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.RJL  101 

<x>mplaint  of  property  owners  and  giving  their  report  the  effect  of  a  judgment 
is  not  on  interference  with  power  of  court. 

Cited  in  footnote  to  Herndon  v.  Imperial  F.  Ins.  Co.  18  L.  R.  A.  547,  which  de- 
nies legislative  power  to  give  right  to  rehearing  contrary  to  court  rule. 

Cited  in  notes  (17  L.  R.  A.  842)  on  implied  restrictions  on  power  of  legisla- 
tures; (41  L.  R.  A.  570)  as  to  when  temporary  absence  of  judge  is  fatal  to  trial. 

Distinguished  in  People  ex  rel.  Morgan  v.  Hayne,  83  Cal.  119,  7  L.  R.  A.  350, 
17  Am.  St.  Rep.  217,  23  Pac.  1,  holding  act  empowering  court  to  appoint  com- 
missioners to  "assist"  it,  valid;  Van  Walters  v.  Children's  Guardians,  132  Ind. 
569,  18  L.  R.  A.  432,  32  N.  E.  568,  holding  board  of  children's  guardians  can  keep 
•control  of  children  whose  custody  awarded  to  them. 

Disapproved  in  People  ex  rel.  Morgan  v.  Hayne,  83  Cal.  119,  7  L.  R.  A.  350,  17 
Am.  St.  Rep.  217,  23  Pac.  1,  holding  act  empowering  court  to  appoint  commis- 
sioners to  "assist"  it,  valid;  Fox  v.  McDonald,  101  Ala.  74,  21  L.  R.  A.  536,  46 
Am.  St.  Rep.  98,  13  So.  416,  holding  act  enabling  probate  judge  to  appoint  police 
commissioners  for  a  city  valid. 
What  powers  courts  have. 

Cited  in  Hawkins  v.  State,  125  Ind.  572,  25  N.  E.  818,  holding  that  circuit 
•court  has  power  to  punish  for  contempt  resistance  to  mandate  to  be  enforced  in 
another  county;  State  ex  rel.  Clark  v.  Haworth,  122  Ind.  469,  7  L.  R.  A.  242,  23 
N.  E.  946,  holding  it  entirely  within  legislative  power  to  enact  that  school  books 
shall  be  furnished  by  one  making  most  acceptable  bid;  Ex  parte  Ginnochio,  30 
Tex.  App.  590,  18  S.  W.  82,  holding  that  judicial  power  is  vested  in  criminal  dis- 
trict courts;  Re  Jessup,  81  Cal.  477,  22  Pac.  1028  (dissenting  opinion),  majority 
holding  that  act  giving  court  power  to  grant  rehearing  is  valid;  White  County 
v.  Gwin,  136  Ind.  586,  22  L.  R.  A.  412,  36  X.  E.  237,  holding  constitutional  laws 
binding  on  courts;  White  County  v.  Gwin,  136  Ind.  580,  22  L.  R.  A.  412,  36  X.  K. 
237.  holding  power  granted  to  court  to  repair  courthouse  does  not  extend  to 
practically  rebuilding  it;  Vigo  County  v.  Stout,  136  Ind.  59,  22  L.  R.  A.  401,  35 
N.  E.  683,  holding  that  judge  can  direct  the  running  of  elevator  in  courthouse; 
Parker  v.  State,  135  Ind.  536,  23  L.  R.  A.  860,  35  X.  E.  179,  holding  that  court 
can  grant  stay  of  criminal  execution  to  enable  it  to  investigate  questions;  Shu- 
,gart  v.  Miles,  125  Ind.  447,  25  X.  E.  551,  holding  bill  of  exceptions  granted  by 
judge  appointed  by  court,  part  of  record;  Barnett  v.  State,  42  Tex.  Grim.  Rep. 
-321,  62  S.  W.  765  (dissenting  opinion),  majority  upholding  statute  providing 
against  reversals  of  convictions  for  errors  in  court's  charge,  unless  exceptions 
reserved;  Elkhart  County  v.  Albright,  168  Ind.  578,  81  N.  E.  578,  holding  that 
courts  although  created  by  legislative  derive  their  power  from  the  constitution 
and  through  their  inherent  power  may  require  that  which  is  essential  to  their 
existence;  Stevenson  v.  Milwaukee  County,  140  Wis.  18,  121  X.  W.  654,  17  Ann. 
Cas.  901,  holding  that  circuit  court  has  inherent  power  to  appoint  necessary  at- 
tendants. 

Cited  in  notes    (22  L.  R.    A.    398)    on  power  of  courts  to  provide  necessary 
places  and  equipment  for  their  business;    (16  L.  R.  A.  737,  738)    on  constitu- 
tional power  of  courts  or  judges  to  appoint  officers;    (35  Am.  St.  Rep.  63)  on  ju- 
dicial  investigation  of  constitutionality  of  legislative  apportionments. 
Creation   of  courts. 

Distinguished  in  Baltimore  &  O.   R.   Co.   v.   Whiting,   161   Ind.  242,  68  N.  E. 
U66,  holding  that  act  conferring  upon  town  clerk  powers  of  justice  of  the  peace 
created  a  court. 
Duty  of  court  or  judge. 

Cited  in  Pennsylvania  Co.  v.  Barton,  130  111.  App.  585,  holding  absence  of  judge 


4  L.R.A.  101]  L.  11.  A.  CASES  AS  AUTHORITIES.  618 

during  conclusion  of  trial  not  grounds  for  reversal  when  all  parties  consented 
and  no  objection  is  raised,  especially  where  neither  party  is  prejudiced. 
Source    of    Constitution. 

Cited  in  Trapp  v.  Cook  Constr.  Co.  24  Okla.  854,  105  Pac.  667;  Exparte  Cainr 
20  Okla.  131,  93  Pac.  974,  1  Okla.  Crim.  Rep.  12, — on  constitutions  as  being 
instruments  in  the  nature  of  express  adoptions  of  approved  systems  and  principles 
in  force  and  existence  at  the  time  of  their  adoption. 

4  L.  R.  A.  Ill,  HARRISON  v.  HARRISON,   118  Ind.   179,  20  N.  E.  746. 
Application   by   banker   of  money   due   depositor. 

Cited  in  Bedford  Bank  v.  Acoam,  125  Ind.  585,  9  L.  R.  A.  560,  21  Am.  St. 
Rep.  258,  25  N.  E.  713,  holding  that  bank  paying  depositor's  note,  payable 
there,  may  set  off  against  balance  on  maker's  account ;  Shepard  v.  Meridian 
Nat.  Bank,  149  Ind.  547,  48  N.  E.  352,  holding  bank  knowingly  receiving  de- 
posits of  county  clerk  as  such,  cannot  set  off  same  against  deficiency  in  individ- 
ual account;  State  v.  Beach,  147  Ind.  90,  36  L.  R.  A.  185,  46  N.  E.  145,  holding 
that  insolvent  bank  receiving  deposit  cannot  apply  it  on  depositor's  unmatured 
obligation,  to  avoid  criminal  liability  for  receiving  deposit;  O'Grady  v.  Stotts  City 
Bank,  106  Mo.  App.  369,  80  S.  W.  696,  holding  that  bank  cannot  apply  without 
his  consent,  a  depositor's  money  to  payment  of  a  check  on  which  such  depositor 
is  merely  a  guarantor;  Callaham  v.  Bank  of  Anderson,  69  S.  C.  383,  48  S.  E. 
293,  2  A.  &  E.  Ann.  Cas.  203  (dissenting  opinion),  on  right  of  bank  to  apply 
general  deposit  to  indebtedness  of  depositor  to  bank. 

Cited  in  footnotes  to  Gardner  v.  First  Nat.  Bank,  10  L.  R.  A.  45,  which  holds 
authority  given  to  bank  to  apply  deposits  to  notes  before  maturity  terminates 
with  death  of  depositor;  First  Nat.  Bank  v.  Peltz,  36  L.  R.  A.  832,  which  holds 
bank  not  bound  to  apply,  to  payment  of  note,  deposit  account  of  first  indorser 
for  whose  accommodation  note  made:  Pickle  v.  People's  Nat.  Bank.  7  L.  R.  A. 
93,  which  holds  bank's  acceptance  of  check  inferred  from  its  retention  of  same. 

Cited   in   notes    (9   L.R.A.   560)    on   set-off  of   unliquidated  cross   demands    \K 
banking;    (22  Am.  St.  Rep. -834)  on  application  by  bank  of  money  due  depositor: 
(111  Am.  S.  Rep.  423)   on  bankers'  liens  not  founded  on  contract. 
General  rule  in  keeping:  account  with  depositor. 

Cited  in  Wasson  v.  Lamb,  120  Ind.  517,  6  L.  R.  A.  192,  16  Am.  St.  Rep.  342, 
22  N.  E.  729,  holding  bank  which  received  and  credited  tax  receipts  as  money 
liable  to  depositors  for  so  much  cash ;  Second  Nat.  Bank  v.  Gibboney,  43  Ind. 
App.  497,  87  N.  E.  1064,  holding  an  entry  in  a  pass  book  of  a  deposit  is  an  ad- 
mission of  a  debtor  to  holder  of  such  book. 

Cited  in  note    (134  Am.  St.  Rep.  1023)   on  effect  of  balances  struck  in   pa>- 
books. 
Trust  in  proceeds  of  collection  by  bank. 

Cited  in  Union  Nat.  Bank  v.  Citizens'  Bank,  153  Ind.  51,  54  N.  E.  97,  hold- 
.ng  proceeds  of  collection  in  ordinary  course  of  dealing  between  banks,  not  pref- 
erential as  trust  fund. 
Special    deposit. 

Cited  in  Shopert  v.  Indiana  Nat.  Bank,  41  Ind.  App.  477,  83  N.  E.  515,  hold- 
ing  that   depositor   may   follow   a   deposit   made   under   special   agreement   into 
the  hands  of  receiver  and  charge  funds  if  more  than  the  amount  of  deposit,  wit!) 
a  trust  providing  that  rights  of  third  persons  are  not  prejudiced. 
Property  in  hands  of  receiver. 

Cited  in  Shopert  v.  Indiana  Nat.  Bank,  41  Ind.  App.  477,  83  N.  E.  515,  hold- 


619  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  117 

ing  that  receiver  takes  property  coming  into  his  hands  for  administration  sub- 
ject to  all  valid  legal  and  equitable  claims. 

4  L.  R.  A.  113,  OILMAN  v.  JONES,  87  Ala.  691,  5  So.  785,  7  So.  48. 
Maintenance  and   champerty. 

Cited  in  Gandy  v.  Fortner,  119  Ala.,  309,  24  So.  425,  holding  that  purchaser 
of  remainderman's  interest  may  maintain  bill  to  set  aside,  as  cloud,  deed  pro- 
cured by  fraud;  Davis  v.  Webber,  66  Ark.  195,  45  L.  R.  A.  198,  74  Am.  St.  Rep. 
81,  49  S.  W.  822,  holding  agreement  whereby  attorney  to  receive  statutory  pen- 
alty for  default  as  fee  in  action  on  sheriff's  bond,  after  client  receives  claim, 
not  void  for  champerty;  Breeden  v.  Frankford  Marine  Acci.  &  Plate  Glass  Ins. 
Co.  110  Mo.  App.  317,  85  S.  W.  930.  Reversed  in  220  Mo.  425,  holding  an  insur- 
ance company  that  has  indemnified  a  mining  company  against  liability  for  in- 
juries to  its  employees,  not  liable  for  maintenance  in  defending  damage  suit 
against  mining  company  by  employees;  Breeden  v.  Frankford  Marine  Acci.  & 
Plate  Glass  Ins.  Co.  220  Mo.  425,  119  S.  W.  576,  on  the  reasons  for  tempering 
the  common-law  rules  of  maintenance;  Smith  v.  Hartsell,  150  N.  C.  76,  22  L.R.A. 
(X.S.)  205,  63  S.  E.  172,  denning  champerty  and  maintenance  and  holding  that 
an  agreement  by  a  claimant  against  an  estate  with  owners  of  estate  that  he  will 
assist  owners  to  recover  the  estate,  they  then  to  pay  him  his  claim,  is  not  cham- 
pertous;  Dent  v.  Arthur,  156  Mo.  App.  479,  137  S.  W.  285,  holding  not  champer- 
tous,  agreement  by  attorney  for  garnishee  that  if  latter  would  permit  appeal 
to  be  taken,  former  would  guarantee  him  against  loss. 

Cited  in  footnotes  to  Newman  v.  Freitas,  50  L.  R.  A.  548,  which  holds  void, 
contract  to  pay  attorney  one  third  of  all  amounts  recovered  in  divorce  suit; 
Reece  v.  Kyle,  16  L.  R.  A.  723,  which  holds  attorney's  agreement  to  advance 
costs  of  collecting  judgment  not  champertous;  Croco  v.  Oregon  Short-Line  R. 
Co.  44  L.  R.  A.  285,  which  authorizes  agreement  that  attorney's  compensation 
shall  depend  on  success  and  be  payable  out  of  proceeds  of  litigation;  Johnson 
v.  Van  Wyck,  41  L.  R.  A.  520,  which  holds  agreement  by  attorney  to  prosecute 
suit  at  own  expense,  for  half  of  recovery,  champertous;  Irwin  v.  Curie,  58  L. 
R.  A.  830,  which  sustains  right  of  person  placing  demands  in  attorney's  hands 
to  recover  agreed  compensation  though  statute  forbids  such  agreements;  Dorr 
v.  C'amden,  65  L.R.A.  348,  which  holds  that  contract  for  contingent  fee  must,  in 
order  to  be  sustained,  be  shown  to  have  been  entered  into  by  the  client  after 
full  knowledge  of  the  facts  and  circumstances  justifying  such  contract. 

Cited  in  notes   (10  L.  R.  A.  190)   on  maintenance;    (9  L.  R.  A.  92)   on  trans- 
actions between  attorney  and   client;    (14  L.  R.   A.   746)    on   champertous  con- 
tracts  of   laymen;    (13   Am.   St.   Rep.   300)    on   contracts   of   attorneys   void   as 
against  public  policy;    (28  Am.  St.  Rep.  757)   on  champerty. 
Immaterial    error    by    sustaining    demurrer. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Trammell,  93  Ala.  353,  9  So.  870,  holding 
overruling  demurrer  to  count  not  proved,  and  sustaining  demurrer  to  special 
plea  of  matter  available  .under  general  issue,  not  prejudicial;  Laughran  v. 
Brewer,  113  Ala.  516,  21  So.  415,  and  Bromley  v.  Birmingham  Mineral  R.  Co. 
95  Ala.  398.  11  So.  341,  holding  sustaining  of  demurrer  to  count  not  prejudical 
if  benefit  of  issues  had  under  another  count;  Capital  City  Water  Co.  v.  National 
Meter  Co.  89  Ala.  402,  7  So.  419.  holding  sustaining  of  demurrer  to  plea  not 
prejudicial  where  matter  tried  under  other  issues. 

4  L.  R.  A.  117,  TRUMBULL  v.  TRUMBULL,  149  Mass.  200,  21  N.  E.  366. 
Estates    tail. 

Cited  in  Hall  v.  Cressey,  92  Me.  518,  43  Atl.   118,  holding  that  deed  to  one, 


I 


4  L.R.A.  137]  L.  R.  A.  CASES  AS  AUTHORITIES.  620 

his  heirs  and  assigns  forever,  with  habendum  to  same  effect,  to  take  effect  at 
grantor's  death  with  remainder  over  if  grantee  dies  without  children,  creates 
estate  tail  by  construction;  Kendall  v.  Clapp,  163  Mass.  69,  39  N.  E.  773,  hold- 
ing that  devise  for  life,  and  to  heirs  and  assigns  forever,  not  within  statute  per- 
taining to  grants  for  life,  and  after  death  to  heirs  in  fee. 
Rnle  in  Shelley's  Case. 

Cited  in  Nichols  v.  Gladden,  117  N.  C.  502,  23  S.  E.  459,  holding  deed  for 
life,  and  then  to  heirs  in  fee  simple,  vests  entire  estate  in  first  taker  under  rule 
in  Shelley's  Case;  Wescott  v.  Binford,  1004  Iowa,  648,  65  Am.  St.  Rep.  530, 
74  N.  W.  18,  holding  that  rule  in  Shelley's  Case  cannot  defeat  life  estate  clearly 
intended  to  be  devised  by  will;  Sands  v.  Old  Colony  Trust  Co.  195  Mass.  578, 
81  N.  E.  300,  12  A.  &  E.  Ann.  Cas.  837,  on  the  abolishment  of  the  Rule  in 
Shelley's  Case  in  Massachusetts  as  to  devises  and  deeds  of  land,  making  estate 
for  life  in  first  taker  with  remainder  in  fee  to  heirs;  Baxter  v.  Bickford,  201  Mass. 
496,  88  N.  E.  7,  holding  an  estate  to  hold  for  life  and  to  her  "progeny"  if  any, 
if  not,  then  to  testator's  heirs  at  law,  is  an  estate  for  life  in  first  taker  with 
remainder  in  fee  to  her  issue  the  word  "progeny"  being  construed  as  one  of 
purchase;  Cashman  v.  Bangs,  200  Mass.  502,  86  N.  E.  932,  holding  a  vested  con- 
tingent remainder  subject  to  debts  of  one  in  whom  it  is  vested  where  in  case 
of  his  death  before  happening  of  contingency  the  estate  descends  to  his  heirs. 

Cited  in  footnote  to  Glover  v.  Condell,  35  L.  R.  A.  360,  which  holds  owner- 
ship of  fvmd  subject  to  limitation  over  given  by  bequest  to  son  with  provision 
over  in  case  of  death  without  living  heirs. 

Cited  in  notes  (22  Am.  St.  Rep.  654;  29  L.R.A.  (N.S.)  976,  1044,  1125,  1163) 
on  rule  in  Shelley's  case. 

4  L.  R.  A.  118,  EVERSON  v.  McMULLEN,  113  N.  Y.  293,  10  Am.  St.  Rep.  445, 

21   N.  E.  52. 
Subrogation    in    equity. 

Cited  in  McMahon  v.  Specht,  64  App.  Div.  130,  71  1ST.  Y.  Supp.  806,  holding 
purchaser  at  foreclosure  subrogated  to  rights  of  mortgagee  as  against  grantor 
of  mortgagor;  Ohmer  v.  Boyer,  89  Ala.  280,  7  So.  663,  holding  tenant  in  com- 
mon subrogated  against  co-owner,  to  rights  of  prior  mortgagee  of  whole,  where 
entire  mortgage  paid  to  protect  interest;  Short  v.  Currier,  153  Mass.  184,  26 
N.  E.  444,  holding  that  lien  of  purchaser  of  mortgage  superior  to  that  of  at- 
taching creditor  who  stands  by  while  purchaser  substitutes  discharges  of  mort- 
gage for  assignments  previously  taken;  Fowler  v.  Maus,  141  Ind.  54,  40  N.  E. 
56,  holding  grantee  of  vendee  subrogated,  as  against  dower  rights  of  vendee's 
widow,  to  lien  of  encumbrances  paid  by  grantee,  though  same  satisfied  of  record ; 
Coffin  v.  Leech,  12  Misc.  598,  35  N.  Y.  Supp.  771,  holding  interest  of  child  sub- 
ject to  proportional  charge  of  mortgage  paid  by  executors  under  will  ordering 
distribution  of  realty  among  children,  where  personal  estate  of  child  disposed 
of  by  assignment  of  bankruptcy:  Hughes  v.  Howell,  152  Ala.  302,  44  So.  410, 
holding  that  the  payment  of  a  decree  that  is  a  lien  on  property  in  which  the 
paying  person  has  a  subsequent  interest  subrogates  that  person  to  the  rights 
under  the  decree;  Belloff  v.  Dime  Sav.  Bank,  118  App.  Div.  22,  103  N.  Y.  Supp. 
273,  holding  that  where  plaintiff  took  title  and  paid  mortgage  he  is  subrogated 
to  the  equitable  rights  of  mortgagee  thoiigh  his  title  Avas  only  dower  interest. 

Cited  in  notes  (12  Am.  St.  Rep.  506;  99  Am.  St.  Rep.  491)  on  right  of  subro- 
gation. 

Wife's     dower    right. 

Cited  in  footnotes  to  Hart  v.  Burch,  6  L.  R.  A.  371,  which  holds  ineffectual, 
release  of  dower  to  one  having  no  title;  Kursheedt  v.  Union  Dime  Sav.  Inst.  7 


621  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  126 

L.  R.  A.  229.  which  holds  inchoate  right  of  dower  not  cut  off  by  judgment  in 
foreclosure  suit  in  which  mortgagor's  wife  not  served. 

Cited  in  notes  (5  L.  R.  A.  519)  on  wife's  inchoate  right  of  dower;  (5  L.  R.  A. 
821)  on  widow's  right  of  dower;  (13  L.  R.  A.  442)  on  bar  of  inchoate  right  of 
dower. 

4  L.  R.  A.  122,  A7TNA  L.  INS.  CO.  v.  HESSER,  77  Iowa,  381,  14  Am.  St.  Rep. 

297,  42  N.  W.  325. 
Entry  of  judgment  to  grlve  lien. 

Cited  in  Callanan  v.  Votruba,  104  Iowa,  674,  40  L,  R.  A.  376,  63  Am.  St.  Rep. 
538,  74  N.  W.  13,  holding  judgment  not  a  lien  within  Code,  §  3801,  until  entered 
on  court  records,  though  signed  by  judge  and  marked  "filed"  by  clerk;  Western 
Sav.  Co.  v.  Currey,  39  Or.  412,  87  Am.  St.  Rep.  660,  65  Pac.  360,  holding  entry 
of  judgment  in  general  "judgment  lien  docket"  for  all  courts  insufficient  to 
create  lien,  where  statute  requires  separate  docket  for  each  court;  State  Ins. 
Co.  v.  Prestage,  116  Iowa,  471,  90  N.  W.  62,  holding  lien  not  created  by  filing 
mere  transcript  by  clerk  of  another  county  of  what  was  done  by  justice  of  the 
peace;  State  Sav.  Bank  v.  Shinn,  130  Iowa,  368,  114  Am.  St.  Rep.  424,  106  N.  W. 
921,  holding  a  judgment  against  a  person  in  one  name  is  a  lien  on  property 
deeded  to  that  person  in  another  name  as  against  any  purchaser  knowing  the 
facts. 

Cited  in  notes    (23  Am.  St.  Rep.  500)    on  necessity  of  entry  of  record;    (87 
Am.  St.  Rep.  671)   on  errors  in  names  as  affecting  lien  of  judgments. 
Duties  of  clerk  as  to  transcript  of  judgment. 

Cited  in  Drahos  v.  Kopesky,  132  Iowa,  500,  109  N.  W.  1021,  holding  that  a 
clerk  of  court  cannot  receive  payment  or  satisfy  a  judgment  rendered  in  another 
court,  of  which  he  has  a  transcript. 
Idem   sonans. 

Cited  in  Loser  v.  Plainfield  Sav.  Bank,  149  Iowa,  680,  31  L.R.A.  (N.S.)  1116, 
128  N.  W.  1101,  holding  that  record  of  mortgage  in  commonly  known  middle 
name  is  notice  to  subsequent  mortgagee  taking  conveyance  from  him  by  his  first 
name  or  initials. 

Cited  in  note   (100  Am.  St.  Rep.  339,  352)   on  idem  sonans. 

4  L.  R.  A.  125,  THE  CITY  OF  SALEM,  13  Sawy.  614,  2  Inters.  Com.  Rep.  418, 
38  Fed.  762. 

4  L.  R.  A.  126,  CHICAGO  CITY  R.  CO.  v.  ROBINSON,  127  111.  9,  11  Am.  St. 

Rep.  87,   18  N.  E.  772. 
Contributory    neg'ligrence. 

Cited  in  Chicago  &  A.  R.  Co.  v.  Fisher,  141  111.  627,  31  N.  E.  406,  holding 
riding  on  steps  or  platform  of  steam  railway  excursion  train  not  negligence 
per  se ;  Lincoln  Ice  Co.  v.  Johnson,  37  III.  App.  454,  holding  negligence  imputa- 
ble  per  se  only  when  such  conclusion  results  necessarily  from  facts;  Perjue  v. 
Citizens'  Electric  Light  &  Gas  Co.  131  Iowa,  713,  109  N.  W.  280,  holding  de- 
fendant not  entitled  to  directed  verdict  unless  case  of  contributory  negligence 
is  so  clearly  made  out  that  reasonable  minds  might  not  differ;  Stewart  v.  Omaha 
&  C.  B.  Street  R.  Co.  83  Xeb.  103,  118  N.  W.  1106,  holding  contributory  negli- 
gence to  be  for  the  jury  under  the  circumstances. 

Cited  in  footnote  to  Graney  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  38  L.  R.  A.  633, 
which  denies  negligence  per  se  of  twelve  year  old  boy  in  standing  so  near  pass- 
ing train  as  to  be  drawn  under  by  current  of  air. 


4  L.R.A.  126]  L.  R.  A.  CASES  AS  AUTHORITIES.  622 

Distinguished  in  Werk  v.  Illinois  Steel  Co.  154  111.  432,  40  X.  E.  442,  Affirm- 
ing 54  111.  App.  308,  holding  it  negligence  per  se  for  laborer  to  stand  with  foot 
on  track  near  empty  ore  ladles  to  which  he  knew  engine  was  about  to  couple; 
Wabash  R.  Co.  v.  Smith,  58  111.  App.  420,  holding  negligence  question  for  jury 
where  deceased  started  rapidly  across  tracks  behind  passing  train  and  was 
struck  by  opposite-bound  train  moving  in  excess  of  legal  speed. 
In  crossing  street  car  track. 

Cited  in  Cincinnati  Street  R.  Co.  v.  Snell,  54  Ohio  St.  208,  32  L.  R.  A.  279, 
43  N.  E.  207 ;  Shea  v.  St.  Paul  City  R.  Co.  50  Minn.  400,  52  N.  W.  902,  holding 
one  who  attempts  to  cross  'street  railway  track  without  looking  both  ways  not 
negligent  per  se;  Atlanta  Consol.  Street  R.  Co.  v.  Bates,  103  Ga.  352,  30  S.  E. 
41,  holding  it  not  negligence  per  se  for  passenger  to  alight  at  crossing  on  wrong 
side  of  car  after  it  had  stopped;  Wallen  v.  North  Chicago  Street  R.  Co.  82 
111.  App.  107,  holding  it  not  negligence  per  se  to  attempt  to  cross  street  car 
tracks  immediately  after  alighting,  where  injury  caused  by  car  moving  in  op- 
posite direction  at  unlawful  speed  without  signal;  Chicago  City  R.  Co.  v. 
Roach,  76  111.  App.  502,  holding  speed  of  cable  car  at  crossing  properly  taken 
into  consideration  with  surrounding  circumstances  on  point  of  negligence, 
though  moving  slowly;  Bass  v.  Norfolk  R.  &  Light  Co.  100  Va.  7,  40  S.  E.  100, 
holding  failure  to  look  and  listen  before  crossing  street  car  track  not  negli- 
gence, as  matter  of  law;  Ames  v.  Waterloo  &  C.  F.  Rapid  Transit  Co.  120  Iowa, 
661,  95  N.  W.  161  (dissenting  opinion),  majority  holding  one  crossing  street 
car  track,  with  partly  obstructed  view,  bound  to  look  out  for  danger;  Chicago 
City  R.  Co.  v.  Jordan,  116  111.  App.  656,  holding  question  of  negligence  in  cross- 
ing street  car  tracks  behind  a  car  without  looking  for  opposite  bound  car  is  a 
question  for  jury  in  the  light  of  the  circumstances  and  under  instructions;  Ras- 
tetter  v.  Peoria  R.  Co.  142  111.  App.  419,  holding  that  deceased  was  not  negligent 
in  crossing  track  after  the  passing  of  a  car  obscuring  from  view  a  car  coming  from 
opposite  direction,  such  last  car  not  having  headlight  lighted:  Indianapolis  Street 
R.  Co.  v.  Tenner,  32  Ind.  App.  323,  67  N.  E.  1044  (dissenting  opinion),  on  the 
rules  governing  negligence  and  contribution  thereto  in  crossing  street  car  tracks; 
Hornstein  v.  United  Railways  Co.  195  Mo.  456,  4  L.R.A.  (N.S.)  738,  113  Am.  St. 
Rep.  693,  92  S.  W.  884,  6  A.  &  E.  Ann.  Cas.  699,  as  differentiating  between  steam 
railways  and  street  railways  as  to  use  of  care  by  pedestrians  in  crossing  tracks. 

Cited  in  footnotes  to  Tesch  v.  Milwaukee  Electric  R.  &  Light  Co.  53  L.  R.  A. 
618,  which  requires  traveler  to  look  and  listen  before  crossing  street  car  track, 
at  place  reasonably  certain  to  eti'ect  purpose;  Kansas  City-Leavenworth  R.  Co. 
T.  Gallagher,  64  L.  R.  A.  344,  which  holds  it  to  be  duty  of  pedestrian  to  look 
and  listen  before  crossing  street  railway  track;  Kansas  City-Leave nworth  R.  Co. 
v.  Gallagher,  64  L.R.A.  344.  which  holds  crossing  electric  railway  track  in  front 
of  approaching  car  not  negligence,  if,  in  view  of  its  distance,  rate  of  speed,  and 
other  circumstances,  a  reasonably  prudent  man  would  undertake  to  cross:  Mar- 
den  v.  Portsmouth,  K:  &  Y.  Street  Railway.  60  L.R.A.  300,  which  holds  failure 
to  look  and  listen  before  crossing  street  car  track  at  public  crossing  not  negli- 
gence per  se. 

Cited  in  notes  (7  L.R.A.  819)  on  negligence  and  contributory  negligence  on 
street  car  track;  (4  L.R.A. (N.S.)  730)  on  injury  to  street  car  passenger  who 
upon  alighting  passes  around  end  of  car,  and  is  struck  by  car  on  other  track; 
<15  L.R.A.  (N.S.)  259)  on  duty  to  look  and  listen  before  crossing  electric  road. 

Distinguished  in  Weber  v.  Kansas  City  Cable  R.  Co.  100  Mo.  203,  7  L.  R.  A. 
821,  18  Am.  St.  Rep.  541,  12  S.  W.  804,  holding  it  negligence  per  se  for  passen- 
ger to  alight  on  wrong  side  of  moving  grip  car,  though  struck  by  car  going  op- 
posite at  unlawful  speed  at  crossing;  Chicago  City  R.  Co.  v.  Fennimore,  199  111. 


•623  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  126 

15,  64  N.  E.  985,  holding  it  question  for  jury  where  plaintiff,  crossing  to  wait 
for  car,  stepped  upon  tracks  immediately  after  passage  of  car  going  in  opposite 
direction  and  was  struck  by  car  running  rapidly;  Chicago  City  R.  Co.  v.  Tuohy, 
196  111.  414,  58  L.  R.  A.  271,  63  N.  E.  997,  holding  it  question  for  jury  where 
child,  walking  backward  across  track,  was  struck  by  trolley  car  running  16  miles 
an  hour  without  warning. 
Imputed  negligence. 

Cited  in  True  &  T.  Co.  v.  Woda,  104  111.  App.  18,  holding  negligence  of  parents 
in  permitting  child  to  play  on  street  near  dangerous  lumber  pile  not  imputable 
where  child  exercised  care  usual  in  adult;  Chicago  City  R.  Co.  v.  Jordan,  116 
111.  App.  656,  holding  question  of  negligence  of  parents  immaterial  where  the 
child  injured  used  due  care;  Richmond,  F.  &  P.  R.  Co.  v.  Martin,  102  Va.  206, 
45  S.  E.  894,  holding  that  where  father's  negligence  contributed  to  tl»e  health  of 
his  child  he  cannot  maintain  an  action  for  his  own  benefit  for  the  death. 

Cited  in  footnotes  to  Casey  v.  Smith,  9  L.  R.  A.  259,  which  holds  negligence 
of  custodian  imputable  to  young  child;  Smith  v.  Davenport,  11  L.  R.  A.  429, 
which  holds  father  not  liable  for  wrongul  acts  of  minor  son;  Bunting  v.  Hog- 
sett,  12  L.  R.  A.  268,  which  holds  carrier's  negligence  not  imputable  to  passen- 
ger. 

Cited  in  notes  (8  L.  R.  A.  495)  on  doctrine  of  imputed  negligence;  (8  L.  R. 
A.  44)  on  imputing  negligence  of  another  to  child;  (17  L.  R.  A.  78)  on  contrib- 
utory negligence  of  parent;  (6  L.  R.  A.  545)  on  doctrine  of  contributory  negli- 
gence of  parent  or  guardian  imputed  to  child;  (17  L.  R.  A.  79)  on  imputing 
parent's  negligence  to  child;  (21  L.  R.  A.  82)  on  contributory  negligence  of 
parent  or  custodian  as  bar  to  action  by  child  for  negligent  injuries;  (6  L.  R. 
A.  143)  on  imputing  negligence  of  one  person  to  another;  (18  L.R.A.  (X.S.)  335) 
on  contributory  negligence  of  parent  as  bar  to  action  by  parent  or  administrator 
for  death  of  child  non  sui  juris;  (110  Am.  St.  Rep.  282,  285)  on  imputed  neg- 
ligence. 

Distinguished  in  Baltimore  &  O.  S.  W.  R.  Co.  v.  Pletz,  61  111.  App.  164,  hold- 
ing negligence  of  parents  in  permitting  child  to  gather  coal  around  tracks  and 
chutes  of  mine  imputable  to  child  negligently  upon  tracks  and  aware  of  ap- 
proaching danger;  Bamberger  v.  Citizens'  Street  R.  Co.  95  Tenn.  28,  28  L.  R, 
A.  490,  49  Am.  St.  Rep.  909,  31  S.  W.  163,  holding  negligence  of  parent  con- 
tributory to  death  of  infant  child  defeats  recovery  by  him  as  administrator, 
where  he  is  sole  beneficiary. 
Contributory  negligence  of  infant. 

Cited  in  footnote  to  Gleason  v.  Smith,  55  L.  R.  A.  622,  which  denies  lia- 
bility for  injury  by  collision  with  team,  to  twelve  year  old  boy  using  street  as 
playground. 

Cited  in  notes  (6  L.  R.  A.  537)  on  infant  not  chargeable  with  contributory 
negligence;  (17  L.  R.  A.  78)  on  contributory  negligence  of  child  as  bar  to  re- 
covery; (12  L.  R.  A.  217)  on  contributory  negligence  of  infant  of  tender  age; 
(10  L.R.A.  655)  as  to  when  children  are  sui  juris;  (11  L.R.A. (N.S.)  170)  on 
what  acts  of  child  in  attempting  to  cross  cartracks  are  negligence  per  se; 
(14  Am.  St.  Rep.  591)  on  negligence  of  infant  as  bar  to  recovery  for  injuries. 
Negligence  of  street  railway  company. 

Cited  in  Chicago  City  R.  Co.  v.  Jordan,  116  111.  App.  659,  holding  that  on  a 
finding  that  child  used  due  care  as  applied  to  adults,  a  finding  of  negligence  only, 
on  part  of  defendant  is  sufficient,  it  not  being  necessary  to  find  wilful  negligence; 
Savage  v.  Chicago  &  J.  R.  Co.  142  111.  App.  345.  on  the  additional  amount  of 
-care  due  from  those  in  charge  of  street  cars  at  street  crossings;  Devine  v.  Chicago 


I 


4  L.R.A.  126]  L.  R.  A.  CASES  AS  AUTHORITIES.  624 

City  R.  Co.  153  111.  App.  387,  holding  that  negligence  of  street  railway  in 
running  over  girl,  six  years  old,  crossing  street,  is  for  jury;  Harmon  v.  Peoria  R. 
Co.  160  111.  App.  466.  holding  street  railway  liable  for  injury  to  passenger 
struck  by  car  on  opposite  track  on  walking  around  rear  of  car  from  which  she 
just  alighted;  Indianapolis  Street  R.  Co.  v.  Bolin,  39  Ind.  App.  177,  78  N.  E. 
210,  holding  that  an  allegation  that  accident  is  caused  by  driving  of  car  at  an 
excessive  rate  of  speed  raises  question  for  jury  to  be  determined  with  reference 
to  existing  conditions  and  circumstances;  Louisville  R.  Co.  v.  Hudgins,  124 
Ky.  84,  7  L.R.A.  (N.S.)  155,  98  S.  W.  275,  holding  street  railway  company  liable 
for  negligent  injury  to  passenger  alighting  from  and  crossing  behind  a  car,  by 
being  hit  by  car  going  in  opposite  direction  though  such  last  car  is  within  speed 
limit  and  passengers  failed  to  look  for  its  approach;  Bremer  v.  St.  Paul  C.  R.  Co. 
107  Minn.  331,  21  L.R.A. (N.S.)  893,  120  X.  W.  382,  holding  that  motorman  in 
passing  car  discharging  passengers  must  have  his  car  under  such  control  as  to 
be  able  to  stop  it,  within  such  time  or  space  as  to  avoid  injury  to  one  using  due 
care  under  the  circumstances;  Coel  v.  Green  Bay  Traction  Co.  147  Wis.  236.  133 
N.  W.  23;  Stewart  v.  Omaha  &  C.  B.  Street  R.  Co.  88  Neb.  212,  129  N.  W.  440, 
Ann.  Cas.  1912  B,  861, — holding  that  motorman,  when  crossing  street  intersection, 
where  opposite  car  is  discharging  passengers,  must  keep  lookout,  giving  warning 
and  have  car  under  control. 

Cited  in  footnotes  to  Smith  v.  Union  Trunk  Line,  45  L.  R.  A.  169,  which  holds 
running  two  cable  cars  past  each  other  at  much  frequented  crossing  without  sig- 
nal, gross  negligence;  Roberts  v.  Spokane  Street  R.  Co.  54  L.  R.  A.  184,  which 
holds  street  car  company  not  free  from  negligence  per  se  in  allowing  cars  to  meet 
at  busy  street  crossing  while  running  at  rate  of  2^  miles  an  hour. 

Cited  in  notes    (25  L.R.A.  665)    on  duty  imposed  on  street  railroad  company 
to  avoid  injuring  child  on  track;   (11  Am.  St.  Rep.  785)   on  negligence  of  railway 
companies. 
Liability    for    maintaining?    dangerous    attractions    for    children. 

Cited  in  footnote  to  Siddall  v.  Jansen,  39  L.  R.  A.  112,  which  holds  owner  liable 
to  child  injured  by  unguarded  door  to  elevator,  in  store  used  by  employees. 

Cited  in  notes  (49  Am.  St.  Rep.  408,  428)  on  negligence  in  dealing  with 
children. 

4  L.  R.  A.  128,  BAKER  v.  STATE,  82  Ga.  776,  14  Am.  St.  Rep.  192,  9  S.  E.  743. 

Contempt  of  court. 

Cited  in  State  ?.  Crum,  7  N.  D.  305,  74  N.  W.  992,  upholding  power  of  court 
to  punish  defiant  attitude  and  disrespectful  language  of  attorney  during  trial  of 
case,  irrespective  of  propriety  of  court's  orders;  Emery  v.  State,  78  Neb.  .">.">(). 
9  L.R.A.(N.S.)  1126,  111  N.  W.  374,  holding  an  attempt  to  talk  with  a  juror 
upon  the  case  in  which  the  juror  is  serving  is  contempt  of  court;  Ex  parte 
McCown,  139  N.  C.  117,  2  L.R.A. (N.S.)  612,  51  S.  E.  957,  holding  an  assault 
on  a  judge  after  court  adjourned  to  meet  on  call  of  judge,  made  because  of 
judicial  act  of  such  judge  constitutes  a  contempt  of  court;  State  v.  Buddress, 
63  Wash.  31,  114  Pac.  879,  holding  that  court  was  in  session  though  it  tempora- 
rily suspended  business  during  fight  between  parties. 

Cited  in  notes  (8  L.  R.  A.  584)  on  contempt  of  court  in  presence  of  court;  (8 
L.  R.  A.  586)  on  summary  punishment  for  contempt. 

4  L.  R.  A.  131,  CUMMINGTON  v.  BELCHERTOWN,  149  Mass.  223,  21  N.  E.  435. 
Impeachment  of  foreign  judgment. 

Cited  in  Kelley  v.  Kelley,  161  Mass.  113,  25  L.  R.  A.  807,  42  Am.  St.  Rep.  389, 


625  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  135 

36  N.  E.  837,  holding  foreign  court  of  chancery  presumptively  without  authority 
to  annul  second  marriage  of  woman  whose  husband  still  living,  or  to  decree  ali- 
mony pendent  e  lite;  Adams  v.  Adams,  154  Mass.  294,  13  L.  R.  A.  280,  28  N.  E. 
260,  holding  invalidity  of  foreign  divorce  for  want  of  residence  of  parties  provable 
in  suit  by  illegitimate  son  to  establish  interest  in  estate  of  father's  brother; 
Dickinson  v.  Dickinson,  167  Mass.  476,  45  N.  E.  1091,  holding  divorce  granted  in 
foreign  jurisdiction  on  fictitious  residence  of  pliintiff,  a  nullity  in  proceeding  by 
other  party  to  obtain  divorce  at  domicil;  Haddock  v.  Haddock,  201  U.  S.  592. 
50  L.  ed.  879,  26  Sup.  Ct.  Rep.  525,  5  A.  &  E.  Ann.  Cas.  1,  holding  a  decree  of 
divorce  from  state  other  than  that  of  matrimony  the  wife,  still  residing  in  matri- 
monial state  is  not  entitled  to  recognition  as  an  annulment  of  marriage  relation 
in  state  of  matrimony. 

Cited  in  footnotes  to  Felt  v.  Felt,  47  L.  R.  A.  546,  which  holds  divorce  on  sub- 
stituted service  in  other  state  where  complainant  domiciled  entitled  to  recognition 
by  interstate  comity;  Arrington  v.  Arrington,  52  L.  R.  A.  201,  which  holds  foreign 
decree  for  alimony  after  defendant's  appearance  entitled  to  fuii  faith  and  credit : 
Filer  v.  Filer,  6  L.  R.  A.  399,  which  holds  jurisdiction  to  allow  alimony  not 
ousted  by  plea  of  dismissal  of  former  suit  for  absolute  divorce;  Trowbridge  v. 
Spinning,  54  L.  R.  A.  204,  which  holds  judgment  for  alimony,  though  subject  to 
alteration,  final  for  enforcement  in  another  state. 

Cited  in  notes  (12  L.  R.  A.  576)  on  constitutional  provision  as  to  full  faith 
and  credit  of  judgment;  (16  L.  R.  A.  499)  on  domicil  of  wife  for  purpose  of  di- 
vorce suit;  (19  L.  R.  A.  816)  on  validity  of  decree  of  divorce  obtained  on  publi- 
cation or  service  out  of  state,  where  defendant  did  not  appear;  (59  L.  R.  A.  169) 
on  conflict  of  laws  on  subject  of  divorce;  (21  Am.  St.  Rep.  219)  on  validity  of 
foreign  decree  of  divorce. 

Distinguished  in  Loker  v.  Gerald,  157  Mass.  45,  16  L.  R.  A.  500,  34  Am.  St.  Rep. 
252,  31  N.  E.  709,  upholding  divorce  granted  in  foreign  state  on  ground  of  deser- 
tion to  husband  bona  fide  moving  thither  for  residence. 
Validity   of   marriage. 

Cited  in  Donnelly  v.  Strong.  175  Mass.  159,  55  X.  E.  892.  holding  concealment 
of  prior  marriage  and  divorce  by  defendant  not  ground  for  annulment  of  marriage 
induced  by  pregnancy  for  which  libellant  responsible:  Smith  v.  Smith,  171  Mass. 
408,  41  L.  R.  A.  801,  68  Am.  St.  Rep.  440,  50  N.  E.  933,  holding  wife  entitled  to 
divorce  from  syphilitic  husband,  where  latter  failed  to  disclose  condition  before 
marriage:  Lyon  v.  Lyon.  230  111.  370,  13  L.R.A.  (X.S.)  1000,  82  X.  E.  850,  12  A. 
&  E.  Ann.  Cas.  25  (affirming  132  111.  App.  54),  false  statement  that  epilepsy  was 
cured  was  no  ground  to  annul  marriage. 

Cited  in  footnote  to  Di  Lorenzo  v.  Di  Lorenzo,  63  L.R.A.  92,  which  upholds 
right  to  annul  marriage  contract  procured  by  fraudulent  representations  that 
a  child  has  been  born  to  woman  of  which  the  man  is  the  father. 

Cited   in  note    (13   L.R.A. (X.S.)    997)    on  misrepresentations   or   concealment 
as  to  physical  or  mental  condition  as  ground  for  annulling  marriage. 
Effect    of    divorce    on    separation    agreement. 

Cited  in  note   (9  L.  R.  A.  113)  on  articles  of  separation. 

4  L.  R.  A.  135,  CHOLLETTE  v.  OMAHA  &  R.  VALLEY  R.  CO.  26  Xeb.  159,  41 

N.  W.  1106. 

Reaffirmed  without  special  discussion  on  second  appeal  in  33  Xeb.  143,  49  N. 
W.  1114. 

Followed  without  special  discussion  in  Omaha  &  R.  Valley  R.  Co.  v.  Chollette, 
41  Xeb.  582,  59  X.  W.  921. 

L.R.A.  Au.  Vol.  I.— 40. 


4  L.R.A.  135]  L.  R.  A.  CASES  AS  AUTHORITIES.  626 

Hull  roads;    effect   of   sale   or   lease. 

Cited  in  Harden  v.  North  Carolina  R.  Co.  129  N.  C.  301,  55  L.  R.  A.  787,  85  Am. 
St.  Rep.  747,  40  S.  E.  184,  holding  lessor  liable  for  negligence  of  lessee  in  operat- 
ing road;  James  v.  Western  N.  C.  R.  Co.  121  N.  C.  529,  46  L.  R.  A.  311,  28  S.  E. 
537,  holding  foreclosure  sale  of  railroad  under  second  mortgage  does  not  release 
company  from  liability  for  manner  in  which  road  is  operated;  McCabe  v.  Mays- 
ville  &  B.  S.  R.  Co.  112  Ky.  874,  66  S.  W.  1054,  holding  lessor  not  relieved  by  lease 
from  liability  for  negligence  of  lessee  in  operating  railroad;  Julian  v.  Central 
Trust  Co.  193  U.  S.  103,  48  L.  ed.  635,  24  Sup.  Ct.  Rep.  399,  holding  that  prop- 
erty of  railroad  company  sold  under  foreclosure  passed  to  purchaser  unburdened 
by  liabilities  of  mortgagor;  Illinois  C.  R.  Co.  v.  Sheegog,  126  Ky.  272,  103  S.  W. 
323,  on  leasing  as  effecting  the  original  obligation  of  a  railroad  company:  Cling- 
er  v.  Chesapeake  &  O.  R.  Co.  128  Ky.  744,  5  L.R.A.  (N.S.)  1007,  109  S.  W.  315, 
holding  that  under  statute  granting  right  to  railroads  to  lease  right  of  way  a 
lease  does  not  absolve  the  lessor  from  any  of  the  duties  to  the  public  that  it 
owes  under  its  charter  with  respect  to  the  line  leased;  Moorshead  v.  Union  R. 
Co.  203  Mo.  158,  100  S.  W.  611,  Affirming  119  Mo.  App.  569,  96  S.  W.  261,  hold- 
ing that  in  the  absence  of  a  statute  authorizing  lease  a  lease  of  its  property  and 
franchise  by  a  railway  company  does  not  relieve  it  of  is  public  duties  and  re- 
sponsibilities and  lessor  is  liable  for  torts  of  lessee. 

Cited  in  notes  (44  L.  R.  A.  738,  743)  on  liability  of  railroad  company  for  in- 
jury caused  by  negligence  of  lessee  of  road;  (66  L.R.A.  155)  on  liability  of  rail- 
roads with  reference  to  legality  of  contractual  arrangements;  (21  Am.  St.  Rep. 
179)  on  liability  of  railroad  company  for  injuries  inflicted  by  construction  com- 
pany. 
Liability  of  railroad  for  negligence  of  connecting  carrier. 

Cited  in  Cherry  v.  Kansas  City  Ft.  S.  &  M.  R.  Co.  61  Mo.  App.  310,  and  Omaha 
&  R.  Valley  R.  Co.  v.  Crow,  54  Neb.  751,  69  Am.  St.  Rep.  741,  74  X.  W.  1066,  hold- 
ing, under  contract  for  through  transportation,  initial  carrier  liable  for  negli- 
gence of  connecting  carrier. 

Cited  in  notes    (5  Eng.  Rul.  Cas.  463;   106  Am.  St.  Rep.  611)    on  liability  of 
initial  carrier  for  torts  or  negligence  of  connecting  lines. 
Statutes    making    railroad    insurer    of    safety    of    passenger. 

Cited  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Zernecke,  183  U.  S.  585,  46  L.  ed.  340,  22 
Sup.  Ct.  Rep.  229;  Clark  v.  Russell,  38  C.  C.  A.  542,  97  Fed.  901;  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Zernecke,  59  Neb.  694,  55  L.  R.  A.  613,  82  N.  W.  26 ;  Chicago,  R.  I. 
&  P.  R.  Co.  v.  Young,  58  Neb.  681,  79  N.  W.  556, — holding  statutes  imposing  lia- 
bility for  all  damage  to  person  of  passengers  while  being  transported  over  road 
not  unconstitutional. 
Injury  to  passenger  tvhile  in  act  of  alighting:  from  train. 

Cited  in  Smitson  v.  Southern  P.  Co.  37  Or.  80,  60  Pac.  907,  holding  passenger 
entitled  to  reasonable  time  to  alight,  and  failure  to  alight  in  fifteen  seconds  not 
negligence,  as  matter  of  law. 

Cited  in  note  (7  L.  R.  A.  113)  on  duty  of  railroad  to  furnish  safe  stations  and 
platforms. 

4  I,.  R.  A.  140,  CRUIKSHANK  v.  HOME  FOR  THE  FRIENDLESS,  113  N.  Y. 

337,  21  N.  E.  64. 
Suspension  of  power  of  alienation. 

Cited  in  Booth  v.  Baptist  Church  of  Christ,  126  N.  Y.  237,  28  N.  E.  238,  holding 
legacy  to  orphan  asylum  to  be  incorporated,  vesting  at  indefinite  future  time,  not 
measured  by  lives,  invalid;  Underwood  v.  Curtis,  127  N.  Y.  541,  28  N.  E.  585, 


627  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  140 

holding  trust  created  by  will,  limited  to  one  life  and  indefinite  period  thereafter, 
void;  Re  New  York,  55  Hun,  206,  7  N.  Y.  Supp.  836,  holding  testamentary  gift  to 
three  lives  in  being  void;  Trowbridge  v.  Metcalf,  5  App.  Div.  323,  39  N.  Y.  Supp. 
241,  holding  devise  to  executors,  suspending  power  of  alienation  for  five  years, 
void;  Brandt  v.  Brandt,  13  Misc.  433,  34  N.  Y.  Supp.  684,  holding  trust  in  execu- 
tors to  receive  rents  and  profits  for  a  period  of  years  before  distribution  void; 
Staples  v.  Hawes,  39  App.  Div.  551,  57  N.  Y.  Supp.  452,  holding  devise  to  trustee, 
distribution  suspended  for  term  of  years,  invalid;  Re  Rounds,  25  Misc.  107,  54  X. 
Y.  Supp.  710,  holding  testamentary  gift  to  a  <chome,"  to  be  incorporated,  void: 
State  v.  Holmes,  115  Mich.  459,  73  X.  W.  548,  holding  devise  to  state  on  condition 
of  acceptance  within  certain  period  and  location  therein  of  charitable  institution 
void;  Re  Tower,  49  Minn.  379,  52  N.  W.  27,  holding  devise  of  real  and  personal 
estate  with  power  of  sale  not  invalid;  People  v.  Simonson,  126  N.  Y.  306,  27  N.  E. 
380,  Affirming  28  N.  Y.  St.  R.  98,  7  N.  Y.  Supp.  861,  holding  legacy  to  nonexist- 
ent musical  institute,  to  be  incorporated,  void;  Williams  v.  Lande,  74  Hun,  428, 
26  N.  Y.  Supp.  705,  holding  agreement  suspending  alienation  of  stock  for  six 
months  void;  Allen  v.  Stevens,  161  X.  Y.  137,  55  X.  E.  568,  Affirming  22  Misc. 
167,  49  X.  Y.  Supp.  431,  holding,  under  statute,  that  supreme  court  must  execxite 
"trust  created  by  will  if  no  trustee  named;  Frazer  v.  Hoguet,  65  App.  Div.  200, 
72  X.  Y.  Supp.  840,  holding  certain  devise  not  within  statute  of  perpetuities; 
Murray  v.  Miller,  178  X.  Y.  322.  70  X.  E.  870,  holding  void  devise  to  treasurer 
of  incorporated  association's  "in  trust,  to  apply  the  same  to  the  uses  and  for  the 
benefit"  of  such  body;  Fay's  Estate,  3  Cof.  Prof.  Dec.  Anno.  274,  holding  a 
trust  made  to  expire  twenty-five  years  after  date  of  will  void  as  suspending  the 
absolute  power  of  alienation  for  a  period  of  years;  Johnson  v.  Preston,  226 
111.  457,  10  L.R.A. (X.S.)  568,  80  X.  E.  1001,  holding  an  estate  to  vest  on  date 
of  probate  of  a  will  is  a  suspension  of  alienation  that  may  not  cease  within 
twenty  one  years  and  is  void;  Casgrain  v.  Hammond,  134  Mich.  429,  104  Am. 
St.  Rep.  610,  96  X.  W.  510,  holding  that  under  the  statutes  a  suspension  of 
alienation  in  a  trust  deed  not  based  on  lives  and  for  a  particular  period  is  void; 
Hayden  v.  Sugden,  48  Misc.  119,  96  X.  Y.  Supp.  681,  holding  a  power  of  sale 
in  a  will,  creating  a  trust  void  for  suspension  of  alienation,  does  not  avoid 
the  statute  on  suspension  where  the  proceeds  remain  subject  to  the  trust;  Tavs- 
hanjian  v.  Abbot,  59  Misc.  648,  112  X.  Y.  Supp.  583,  holding  a  bequest  void  for 
suspension  of  alienation,  where  it  is  to  vest  on  incorporation  of  a  charity  as 
per  provision  in  will  which  if  possible  of  consummation  could  be  so,  only  by 
special  act;  Hillyer  v.  Vandewater,  3  Silv.  Ct.  App.  29,  24  X.  E.  999  (dissenting 
opinion),  on  a  disposition  of  property  in  violation  of  statutes  against  perpetu- 
ities; Re  Rounds,  2  Gibbons,  Sur.  Rep.  573,  holding  void,  devise,  though  trustee, 
to  unincorporated  home,  to  be  conveyed  on  its  incorporation. 

Cited  in  footnotes  to  Murphy  v.  Whitney,  24  L.  R.  A.  123,  which  holds  agree- 
ment that  land  descending  to  brothers  and  sisters  shall,  on  death  of  last  survivor, 
pass  to  child  of  only  married  one  not  void  as  perpetuity;  Cross  v.  United  States 
Trust  Co.  15  L.  R.  A.  606,  which  upholds  bequest  valid  by  law  of  testator's 
domicil. 

Cited  in  notes  (11  L.  R.  A.  86)  on  unlawful  suspension  of  power  of  alienation; 
(5  L.  R.  A.  34,  35)  on  applicability  to  charitable  trusts  of  law  against  perpetui- 
ties: (5  L.R.A.  33)  on  public  charities;  (26  L.R.A. (X.S.)  827)  on  allowance  of 
specified  period  for  election  to  take  under  devise  as  violation  of  rule  against 
perpetuities;  10  Am.  St.  Rep.  574;  49  Am.  St.  Rep.  119,  120)  on  rule  against 
perpetuities. 

Distinguished  in  Ranken  v.  James,  1  App.  Div.  275,  37  X.  Y.  Supp.  159,  holding 
substituted  devise  took  effect  on  failure  of  devise. 


4  L.R.A.  140]  L.  R.   A.  CASES  AS  AUTHORITIES.  628 

Residuary  bequests  and  devises. 

Cited  in  Re  Bonnet,  113  N.  Y.  524,  21  N.  E.  139,  holding  void  legacy  went  to 
residuary  legatee;  Lamb  v.  Lamb,  37  N.  Y.  S.  R.  701,  14  N.  Y.  Supp.  206,  holding 
testator  included  real  estate  in  residuary  clause  of  will;  Gallavan  v.  Gallavan,  57 
App.  Div.  321,  68  N.  Y.  Supp.  30,  holding  failure  of  devise  carried  it  into  residu- 
ary clause;  Smith  v.  Smith,  141  N.  Y.  34,  35  N.  E.  1075,  holding  lapsed  legacy 
went  into  residuary  clause;  Moffett  v.  Elmendorf,  152  N.  Y.  485,  57  Am.  St.  Rep. 
529,  46  N.  E.  845,  holding  lapsed  devise  went  into  residuary  clause;  Adams  v. 
Anderson,  23  Misc.  707,  53  N.  Y.  Supp.  141,  holding  certain  real  estate  a  lapsed 
devise  falling  into  residuum;  Re  Allen,  151  N.  Y.  249,  45  X.  E.  554,  holding  un- 
disposed income  of  half  of  estate  fell  into  residue;  Re  Post,  30  Misc.  557,  64  N. 
Y.  Supp.  369,  holding  that  inoperative  legacies  passed  into  residuary  clause;  Gal- 
lavan v.  Gallavan,  31  Misc.  283,  64  N.  Y.  Supp.  329,  holding  void  devises  went  to» 
residuary  devisees;  Re  Grossman,  113  N.  Y.  510,  21  N.  E.  180,  holding  general  resid- 
uary legatee  entitled  to  income  from  residuum;  Re  Upham,  127  Cal.  93,  59  Pac- 
315,  holding  residuary  devisee  and  legatee  was  created  by  will;  Watkins  v. 
Bigelow,  93  Minn.  230,  100  N.  W.  1104,  holding  that  where  residuary  clause 
states  that  the  property  therein  shall  vest  free  from  trust  features  of  will  which 
may  be  invalid,  the  property  vests  absolutely  if  such  features  are  invalid  and 
if  valid  it  vests  subject  thereto. 

Cited  in  notes  (9  L.R.A.  202)  on  what  passes  by  residuary  bequests;  (14 
L.R.A.(N.S.)  82)  on  enforcement  of  general  bequest  for  charity  or  religion:  (48 
Am.  St.  Rep.  198)  on  intent  controlling  in  construction  of  will. 

4  L.  R.  A.  145,  FOWLER  v.  BOWERY  SAV.  BANK,  113  N.  Y.  450,  10  Am.  St.  Rep 

479,  21  N.  E.  172. 
Election  of  remedies. 

Cited  in  Eufaula  Grocery  Co.  v.  Missouri  Nat.  Bank,  118  Ala.  414,  24  So.  389,. 
holding  that  action  against  bank  of  deposit  precludes  action  against  bank  of  collec- 
tion, for  amount  of  draft;  Crook  v.  First  Nat.  Bank,  83  Wis.  42,  35  Am.  St.  Rep. 
17,  52  N.  W.  1131,  holding  action  against  party  to  whom  money  has  been  wrong- 
fully paid  by  bank  precludes  subsequent  action  in  debt  against  bank;  Terry  v.  Buek. 
40  App.  Div.  422,  57  N.  Y.  Supp.  980,  holding  action  against  broker  for  fraudulent 
retention  of  proceeds  of  sale  bars  action  against  purchaser  for  purchase  price;  See- 
man  v.  Bandler,  26  Misc.  374,  56  N.  Y.  Supp.  210,  holding  institution  of  replevin 
action  against  assignee  of  alleged  fraudulent  vendee  bars  action  against  vendee 
for  purchase  price;  McLean  v.  Ficke,  94  Iowa,  295,  62  N.  W.  753,  holding  attach- 
ment of  agent's  property  by  party  injured  through  agent's  fraud  precludes  subse- 
quent action  against  principal  for  agent's  wrong;  Cassidy  v.  New  York,  62  H\m, 
364,  17  N.  Y.  Supp.  71,  holding  judgment  in  action  to  recover  land,  requiring 
accounting  for  award  paid  to  defendant  in  pursuance  of  condemnation  proceedings 
after  institution  of  action  to  recover,  bars  action  against  city  to  recover  award; 
Droege  v.  Ahrens  &  0.  Mfg.  Co.  163  N.  Y.  470,  57  N.  E.  747,  holding  proof  of 
claim  by  vendor  before  vendee's  assignee  in  insolvency  bars  subsequent  rescission 
of  sale  on  ground  of  fraud,  where  facts  were  known  at  time  of  proof;  Mills  v. 
Parkhurst,  30  N.  Y.  S.  R.  141,  9  N.  Y.  Supp.  109,  holding  that  creditor  cannot 
prove  claim  against  assignee  for  benefit  of  creditors,  pending  his  attack  upon  as- 
signment on  ground  of  fraud;  Dietz  v.  Field,  17  Misc.  27,  39  N.  Y.  Supp.  257, 
Affirmed  in  10  App.  Div.  427,  41  N.  Y.  Supp.  1087,  holding  action  for  conversion 
of  bonds  bars  subsequent  proceeding  to  recover  possession;  Carroll  v.  Fethers,  102: 
Wis.  443,  78  N.  W.  604,  holding  action  for  money  had  and  received,  though  dis- 
missed, bars  subsequent  action  against  same  defendants  on  same  facts  for  conver- 
sion; Terry  v.  Munger,  121  N.  Y.  170,  8  L.  R.  A.  220,  18  Am.  St.  Rep.  803,  24  N, 


629  L.  E.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  145 

E.  272,  holding  that  bringing  action  ex  contractu  on  implied  contract  of  sale 
against  one  converting  property,  bars  action  for  conversion  against  other  persons 
participating  in  former's  acts;  White  v.  White,  107  Ala.  423,  18  So.  3,  holding 
that  creditor  who  takes  judgment  against  debtor  thereby  waives  rights  to  proceeds 
of  trust  created  by  debtor  in  his  favor;  White  v.  White,  68  Vt.  166,  34  Atl.  425, 
holding  presentation  of  claims  against  estate,  releases  to  which  had  been  obtained 
by  fraud,  bars  suit  for  specific  performance  of  settlement  by  which  releases  ob- 
tained; Howell  v.  Campbell,  53  Kan.  749,  37  Pac.  120,  holding  that  action  by  prin- 
cipal against  absconding  agent,  to  recover  purchase  price  of  goods  placed  in  his 
hands  to  sell,  preclude  subsequent  attachment  thereof  on  theory  that  title  has  not 
passed;  Brady  v.  Cassidy,  9  Misc.  114,  29  N.  Y.  Supp.  45,  holding  that  vendee,  by 
permitting  vendor  to  appropriate  portion  of  goods  sold,  waives  right  to  refuse 
payment  for  portion  received  without  delivery  of  balance,  and  becomes  liable  for 
purchase  price,  less  damage  by  nondelivery;  Brewer  v.  Ford,  59  Hun,  25,  12  N.  Y. 
Supp.  619  (dissenting  opinion),  majority  holding  trover  maintainable  to  recover 
property  without  surrender  of  purchase  money  notes;  Campbell  v.  Kauffman  Mill. 
Co.  42  Fla.  343,  29  So.  435,  holding  election  between  inconsistent  remedies,  with 
full  knowledge  of  facts,  binding;  E.  J.  Codd  Co.  v.  Parker,  97  Md.  325,  55  Atl. 
623,  holding  election  to  sue  undisclosed  principal  upon  discovery  binding;  Barrell 
v.  Xewby,  62  C.  C.  A.  387,  127  Fed.  661,  holding  election  by  third  party  to  hold 
agent,  after  discovery  of  undisclosed  principal,  binding;  Re  Hildebrant,  120  Fed. 
'996,  holding  filing  of  claims  against  estate  of  bankrupt  for  goods  sold  through 
fraud  of  bankrupt,  election  to  affirm  contract;  Wood  v.  Claiborne,  82  Ark.  520, 
11  L.R.A.(X.S.)  916,  118  Am.  St.  Rep.  89,  102  S.  W.  219,  holding  that  to  bar 
action  against  agent  by  principal  for  payment  of  principals  money  to  irrespon- 
sible person  the  agent  must  show  that  principal  not  only  obtained  judgment  but 
a  satisfaction  also;  Mark  Means  Transfer  Co.  v.  Mackenzie,  9  Idaho,  174,  73 
Pac.  135,  holding  that  institution  of  suit  for  purchase  price  is  a  waiver  of  con- 
dition in  conditional  sale  contract  showing  an  election  on  part  of  vendor  to 
waive  his  right  of  attachment  and  sue  on  contract;  Dickson  v.  New  York  Biscuit 
Co.  211  111.  492,  71  N.  E.  1058,  holding  that  an  acceptance  by  beneficiaries  of 
profits  of  an  invalid  trustee's  sale,  precludes  them  from  obtaining  a  reconveyance 
from  bona  fide  purchasers;  Paris  v.  Sheppard,  125  Iowa,  258,  101  X.  W.  114, 
holding  an  intervention  under  a  statute,  in  attachment  proceedings  after  sale 
thereunder  precludes  the  intervenor  from  afterwards  maintaining  a  suit  for 
recovery  of  the  property;  Sweet  v.  Montpelier  Sav.  Bank  &  T.  Co.  69  Kan.  645, 
77  Pac.  538,  holding  that  where  money  has  been  wrongfully  converted  by  cor- 
poration the  assets  of  corporation  going  into  hands  of  receiver  for  insolvency  a 
following  of  funds  in  hands  of  receiver  as  a  trust  fund  does  not  preclude  an 
action  against  the  persons  who  wrongfully  converted;  Aho  v.  Republic  Iron  & 
Steel  Co.  104  Minn.  325,  116  N.  W.  590,  holding  that  a  fraudulent  release  by 
executor,  of  widow  and  children's  right  of  action  for  death  of  husband  and 
father  and  a  subsequent  action  by  widow  against  the  executor  and  one  released 
are  no  bar  to  an  action  by  widow  for  negligent  killing  of  her  husband  against 
the  person  released;  Parker  v.  Murphy,  56  Misc.  544,  107  N.  Y.  Supp.  202,  on 
election  by  decisive  act  made  with  full  knowledge  of  all  the  facts;  Hochberger 
T.  TAidvigh.  »>3  Misc.  314,  116  N.  Y.  Supp.  696,  holding  that  plaintiff  may  not  sue 
bank  for  a  payment  of  deposit,  assigned  to  him  with  notice  to  bank  to  receiver 
of  depositor,  after  institution  of  suit  by  plaintiff  against  receiver  on  implied 
assumpsit  on  permission  of  court;  Carnegie  Trust  Co.  v.  Battery  Place  Realty 
Co.  i>7  Misc.  453,  122  X.  Y.  Supp.  697,  holding  that  when  there  are  two  parties 
claiming  the  same  ehose-in-action  the  one  having  superior  claim  may  sue  in 
assumpsit  the  other  who  receives  the  money  or  may  repudiate  the  payment  and 


4  L.R.A.  145]  L.  R.  A.  CASES  AS  AUTHORITIES.  633 

sue  the  debtor;  Lynde  v.  Lynde,  113  App.  Div.  418,  99  N.  Y.  Supp.  283  (dissenting 
opinion),  on  choice  of  remedies;  Hine  v.  Hine,  118  App.  Div.  589,  103  N.  Y.  Supp. 
535,  holding  that  where  a  devisee  assigns  his  right  to  his  share  of  proceeds- 
from  estate  he  cannot  hold  executor  to  account  for  the  property  from  which  the 
proceeds  arose;  Re  Ablowich,  118  App.  Div.  632,  103  N.  Y.  Supp.  699  (dissenting 
opinion),  on  election  and  prosecution  to  judgment  of  one  of  two  inconsistent 
remedies  as  a  bar  to  use  of  other;  Davenport  v.  Walker.  132  App.  Div.  99,  116 
N.  Y.  Supp.  411,  on  the  rule  that  the  election  to  sue  on  one  of  two  inconsistent 
causes  of  action  is  a  bar  to  suit  on  the  other;  Re  Hoffman,  136  App.  Div.  520. 
121  N.  Y.  Supp.  184,  Reversing  62  Misc.  605,  on  loss  of  right  of  action  against 
bank  by  election  to  sue  person  to  whom  bank  paid  money;  Turner  v.  Grimes,  75 
Neb.  416,  106  N.  W.  465,  holding  that  plaintiff  who  has  sued  unsuccessfully  on  a 
bill  of  sale  cannot  subsequently  in  another  action,  claim  that  title  never  passed; 
Jones  v.  First  Nat.  Bank,  3  Neb.  (Unof.)  79,  90  N.  W.  912,  holding  prosecution 
of  suit  to  final  judgment  against  person  to  whom  bank  paid  plaintiff's  money 
is  a  bar  to  subsequent  action  against  the  bank;  Seymour  v.  DuBois,  145  Fed. 
1006,  holding  that  a  decree  discharging  counsel  on  payment  of  fee  obtained  on 
petition  is  a  binding  election  to  discharge,  precluding  petitioner  from  asserting 
that  relation  of  attorney  and  client  has  not  terminated. 

Annotation  cited  in  Carter,  R.  &  Co.  v.  Howard,  17  Misc.  384,  39  N.  Y.  Supp. 
1060,  on  election  of  inconsistent  remedies. 

Cited  in  footnotes  to  Crompton  v.  Beach,  18  L.  R.  A.  187,  which  holds  condi- 
tional vendor's  exercise  of  option  to  enforce  payment  of  note  defeats  right  to  re- 
take property;  Bradley  v.  Brigham,  3  L.  R.  A.  507,  which  holds  action  for  con- 
version against  executor  of  deceased  partner  barred  by  suing  for  accounting; 
Barndt  v.  Frederick,  11  L.  R.  A.  199,  which  holds  conducting  trial  on  theory  sug- 
gested by  court  conclusive  election  of  form  of  action;  Johnson-Brinkman  Commis- 
sion Co.  v.  Missouri  P.  R.  Co.  26  L.  R.  A.  840,  which  holds  mere  commencement 
of  attachment  suit  not  binding  election  of  remedy;  Miller  v.  Hyde,  25  L.  R.  A» 
42,  which  holds  replevin  of  horse  not  defeated  by  prior  attachment  in  suit  for 
trover;  Walden  Nat.  Bank  v.  Birch,  14  L.  R.  A.  211,  which  holds  recovery  of 
judgment  against  bank  cashier  on-  note  secured  by  bank  stock  not  bar  to  action 
on  bond  for  misappropriating  stock;  Barchard  v.  Kohn,  29  L.  R.  A.  803,  which 
holds  lien  of  chattel  mortgage  on  exempt  property  not  waived  by  obtaining  judg- 
ment and  levying  on  mortgaged  property;  Draper  v.  Medlock.  69  L.R.A.  483, 
which  holds  burden  of  proving  that  particular  matter  in  controversy  was  neces- 
sarily or  actually  determined  in  former  litigation  upon  party  pleading  judgment 
as  an  estoppel. 

Cited  in  notes  (13  L.  R.  A.  473)  on  election  of  remedy;  (5  L.  R.  A.  693,  8  L. 
R.A.  217)  on  collusiveness  of  election  of  remedy;  (134  Am.  St.  Rep.  189)  on 
right  to  waive  tort  and  sue  in  assumpsit. 

Distinguished  in  McNutt  v.  Hilkins,  80  Hun,  238,  29  N.  Y.  Supp.  1047,  holding 
judgment  for  defendant  in  action  by  vendor  against  vendee  for  conversion  does 
not  bar  action  for  purchase  price;  Heidelbach  v.  National  Park  Bank,  87  Hunr 
126,  33  N.  Y.  Supp.  794,  holding  that  vendor  may  bring  separate  actions  for  pur- 
chase price  and  to  recover  goods,  under  contract  reserving  title  until  full  pay- 
ment; Johnson-Brinkman  Commission  Co.  v.  Missouri  P.  R.  Co.  126  Mo.  340.  2ft 
L.  R.  A.  842,  47  Am.  St.  Rep.  675,  28  S.  W.  870,  holding,  on  dismissal  of  attach- 
ment suit  by  vendor  against  vendee,  that  replevin  may  be  brought;  Clark  v.  Hall. 
54  Xeb.  485,  74  N.  W.  856,  holding  that  judgment  against  individual  members  of 
partnership  does  not  bar  subsequent  action  against  new  partnership  assuming 
this  debt;  Grossman  v.  Universal  Rubber  Co.  127  N.  Y.  38,  13  L.  R.  A.  94,  27  N. 
E.  400,  holding  that  pendency  of  foreign  proceeding  in  rem  by  vendor  of  real 


631  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  145 

estate,  to  recover  entire  purchase  price  on  ground  of  fraud,  not  bar  to  action  on 
purchase  money  note,  though  available  as  defense  in  abatement;  Hurst  v.  Trow 
Printing  &  Bookbinding  Co.  2  Misc.  365,  22  N.  Y.  Supp.  371,  holding  retention  of 
matured  notes  in  series  issued  under  executory  agreement  prevents  return  of  re- 
mainder with  notice  of  rescission  from  operating  as  entire  rescission,  so  as  to 
bar  recovery  on  matured  notes  retained;  Cohoon  v.  Fisher,  146  Ind.  588,  36  L.  R. 
A.  195.  45  X.  E.  787,  holding  that  institution  of  suit  to  rescind  contract  for  fraud 
does  not  prevent  substitution,  before  judgment,  of  action  for  damages  by  reason 
of  the  fraud;  Marshall  v.  Otto,  59  Fed.  255,  holding  that  pledgee's  attachment  of 
the  property  pledged  on  ground  of  pledgeor's  nonresidence,  and  for  purpose  of  pre- 
venting his  fraudulent  disposition  thereof,  does  not  operate  to  waive  pledge  lien; 
Russell  v.  McCall,  141  N.  Y.  449,  38  Am.  St.  Rep.  807,  36  N.  E.  498,  Reversing 
68  Hun,  54,  22  N.  Y.  Supp.  615,  holding  that  unsatisfied  judgment  in  accounting 
against  surviving  partner,  which  covers  misappropriation  known  at  time  of  suit, 
does  not  bar  action  against  others  joining  in  misappropriation;  Central  Nat. 
Bank  v.  White,  47  N.  Y.  S.  R.  304,  19  N.  Y.  Supp.  820,  holding  judgment  by 
brokers  against  their  defaulting  cashier,  in  which  he  is  treated  as  customer,  does 
not  preclude  them  from  asserting  contrary  in  action  by  customer  for  value  of  se- 
curities embezzled;  Re  Linforth,  87  Fed.  390,  holding  that  institution  of  proceed- 
ing by  secured  creditor  of  bankrupt  against  security,  upon  condition  of  waiving 
claim  against  estate,  does  not  preclude  such  claim  where  proceeding  subsequently 
abandoned  for  good  reason  and  without  laches;  Ernst  v.  Estey  Wire  Works  Co.  20 
Misc.  366,  45  X.  Y.  Supp.  932,  holding  that  agreement  by  assignee  not  to  sue  di- 
rectors of  assigning  corporation,  made  at  time  of  taking  additional  security,  does 
not  bar  suit  against  debtor  where  assignee  not  aware  of  payment  to  assignor  at 
time  of  taking  additional  security;  Eads  v.  Orcutt,  79  Mo.  App.  522,  holding 
that  statutory  action  against  officers  of  insolvent  bank  may  be  brought  after  proof 
of  claim  before  assignee  in  insolvency;  Detroit  Heating  &  L.  Co.  v.  Stevens,  20 
Utah.  248,  58  Pac.  193,  holding  that  trial  by  defendant  upon  ground  of  rescission 
of  contract,  defense  not  being  raised  by  pleadings,  does  not  prevent  amendment  of 
answer  to  claim  breach  of  warranty  on  new  trial ;  State  v.  Bank  of  Commerce,  61 
Neb.  26,  84  N.  W.  406,  holding  that  doctrine  of  election  has  no  application  where 
party  pursues  remedy  to  which  he  is  not  entitled;  Central  Nat.  Bank  v.  White, 
29  Jones  &  S.  273,  19  N.  Y.  Supp.  820,  holding  that  there  has  been  no  election 
to  become  liable  to  the  bank  where  defendant  brings  suit  to  recover  balance 
in  favor  of  defaulting  cashier  doing  business  through  defendant  with  bank  funds. 
Relation  of  bank:  to  depositor. 

Cited  in  People  ex  rel.  Heermance  v.  Dederick,  35  App.  Div.  31,  54  N.  Y.  Supp. 
519,  holding  savings  bank  not  subject  to  taxation  for  deposits  therein,  since  they 
are  debts  which  may  be  set  off  against  amount  of  personal  property;  People  e* 
rcl.  Newburgh  Sav.  Bank  v.  Peck,  22  Misc.  483,  50  N.  Y.  Supp.  820,  holding  ac- 
cumulated surplus  in  savings  bank  exempt  from  taxation;  Re  Hurst,  111  App. 
Div.  462.  97  N.  Y.  Supp.  697,  holding  that  the  relation  between  decedent  and 
her  depositary,  the  savings  bank,  being  that  of  creditor  and  debtor,  to  entitle  the 
administrator  to  commissions  for  collection  of  debts  he  must  have  withdrawn 
deposits;  Re  White,  119  App.  Div.  142,  103  N.  Y.  Supp.  868,  holding  that  sum- 
mary proceedings  for  recovery  of  money  deposited  in  bank  by  decedent  may  not 
be  brought  by  personal  representative  the  relation  of  decedent  and  bank  being  that 
of  creditor  and  debtor  the  usual  process  must  be  alone  accessible. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
acceptance  of  check  necessary  to  give  right  of  action  against  bank. 

Cited  in  notes    (86  Am.  St.  Rep.   777)   on  title  of  bank  to  money  deposited 


4  L.R.A.  145]  L.  R.  A.  CASES  AS  AUTHORITIES.  632 

with  or  collected  by   it;    (105  Am.   St.   Rep.   734)    on   duties  of   savings   banks 
toward  depositors. 

Distinguished  in  Cassidy  v.   Uhlmann,   170  N.  Y.  515,  63  N.  E.  554,  holding 
director    permitting    deposit    after    knowledge    of    bank's    insolvency,    personally 
liable   to   depositor   for   damages. 
Deposits   in    trust. 

Cited  in  Farleigh  v.  Cadman,  159  M.  Y.  172,  53  N.  E.  808,  holding  deposit 
of  fund  in  savings  bank  by  father  in  his  own  name,  "in  trust  for"  adopted  daugh- 
ter present  at  the  time,  creates  valid,  irrevocable  trust  for  her  benefit;  Re  Muel- 
ler, 15  App.  Div.  69,  44  N.  Y.  Supp.  280,  holding  deposit  "in  trust  for"  another 
conclusively  presumed  irrevocable  trust,  in  absence  of  rebutting  circumstances; 
Robertson  v.  McCarty,  54  App.  Div.  106,  66  N.  Y.  Supp.  327,  holding  retention 
of  deposit  book  by  depositor  and  ignorance  of  beneficiary  of  deposit  "in  trust 
for"  him  insufficient  to  rebut  presumption  of  irrevocable  trust;  Millard  v.  Clark, 
80  Hun,  149,  29  N.  Y.  Supp.  1012,  holding  deposit  of  money  "subject  to  sole  con- 
trol of"  another  creates  trust  fund  recoverable  by  beneficiary;  Jenkins  v.  Baker, 
77  App.  Div.  513,  78  N.  Y.  Supp.  1074,  holding  implication  of  trust  arising  from 
savings  bank  deposit  "in  trust"  for  another  but  rebutted  by  subsequent  with- 
drawal of  the  money;  Re  King,  51  Misc.  379,  101  N.  Y.  Supp.  279,  holding  where 
money  is  deposited  in  bank  in  trust  for  another  with  stipulation  "subject  to  con- 
trol of"  the  depositor  coupled  with  declarations  on  part  of  depositor  that  deposit 
is  for  benefit  of  such  person  a  trust  is  established. 

Cited  in  notes  (32  L.R.A.  374)   on  effect  of  depositing  money  in  bank  in  trust 
for   third   person;    (1   L.R.A. (N.S.)    792)    on   bank   deposit   for   other   person    as 
gift  or  transfer  of  title. 
Liability   of   trustee. 

Cited  in  Hopper  v.  Brown,  34  Misc.  661,  70  N.  Y.  Supp.  592,  holding  six,  and 
not  three,  year  limitation  applies  to  action  against  trustee  to  recover  funds 
drawn  by  him  from  deposit  in  irrevocable  trust  for  plaintiff;  Noyes  v.  Turnbull, 
54  Hun,  42,  7  N.  Y.  Supp.  114  (dissenting  opinion),  majority  holding  retiring 
trustee  in  conduct  of  business  under  testamentary  appointment  not  personally 
liable  to  creditor  dealing  with  successors  in  trust  after  such  retirement,  espe- 
cially after  notice. 
Liability  of  party  to  whom  payment  is  wrongfully  made. 

Cited  in  Dechen  v.  Dechen,  59  App.  Div.  167,  68  N.  Y.  Supp.  1043,  holding 
beneficiary  in  trust  deposit  entitled  to  waive  rights  against  bank  and  recover 
from  third  party,  to  whom  payment  has  been  wrongfully  made;  Bates-Farley 
Sav.  Bank  v.  Dismukes,  107  Ga.  218,  33  S.  E.  175,  holding  that  stockholder  in 
building  association  who  has  given  notice  of  withdrawal,  under  terms  of  con- 
tract, may  sue  bank  wrongfully  collecting  withdrawal  value  of  stock,  for  money 
had  and  received. 
Time  for  taking  objections. 

Cited  in  Drexel  v.  True,  20  C.  C.  A.  266,  36  U.  S.  App.  611,  74  Fed.  14,  hold- 
ing objections  other  than  those  going  to  jurisdiction  of  court,  if  not  taken  on 
trial,  will  not  be  considered  on  appeal;  Barcus  v.  Dorries,  64  App.  Div.  112,  71 
N.  Y.  Supp.  695,  holding  objection  that  facts  proved  in  defense  were  inadmissi- 
ble under  pleadings  not  available  for  first  time  on  appeal;  United  States  ex  rel. 
Search  v.  Choctaw,  O.  &  G.  R.  Co.  3  Okla.  470,  41  Pac.  729,  holding  that  right 
of  party  to  judgment  on  pleadings  cannot  be  maintained  for  first  time  on  ap- 
peal. 

Distinguished  in  Palmer  v.  Cypress  Hill  Cemetery,   122  N.  Y.  436,  25  N.  E. 


633  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  151 

983,  holding  facts  proved,  but  not  found  by  court  or  referee,  not  available  on 
appeal  to  support  reversal  of  judgment,  though  available  to  support  it. 

4  L.  R.  A.  151,  BYRNES  v.  NEW  YORK,  L.  E.  &  W.  R.  CO.  113  N.  Y.  251,  21 
N.  E.  50. 

Reaffirmed  on  subsequent  appeal  in  71  Hun,  210,  24  N.  Y.  Supp.  517. 
N  «-ii  1  im-in-c    of    fellow    servant. 

Cited  in  Ford  v.  Lake  Shore  &  M.  S.  R.  Co.  117  N.  Y.  639,  22  N.  E.  946, 
holding  railroad  not  liable  for  negligent  loading  of  lumber  which  fell  on  switch- 
man; Sweeney  v.  Page,  64  Hun,  175,  18  N.  Y.  Supp.  890,  holding  negligent  load- 
ing of  stone  by  coemployees  not  actionable;  Bailey  v.  Delaware  &  H.  Canal  Co. 
27  App.  Div.  306,  50  N.  Y.  Supp.  87,  holding  railroad  not  liable  to  employee 
for  unsafe  loading  of  timber;  Dewey  v.  Detroit,  G.  H.  &  M.  R.  Co.  97  Mich.  335, 
22  L.  R.  A.  294,  37  Am.  St.  Rep.  348,  56  N.  VV.  756,  holding  railroad  furnish- 
ing competent  inspector  not  liable  to  brakeman  injured  by  projecting  load;  Page 
v.  Xaughton,  63  App.  Di«'.  381.  71  N.  Y.  Supp.  503,  holding  master  not  liable  for 
fellow  servant's  negligence  in  piling  bags  of  cement;  Filbert  v.  Delaware  &  H. 
Canal  Co.  121  N.  Y.  212,  23  N.  E.  1104,  holding  master  not  liable  to,  employee 
falling  into  pit  uncovered  by  coservants;  Geoghegan  v.  Atlas  S.  S.  Co.  3  Misc. 
229,  22  N.  Y.  Supp.  749,  holding  master  not  liable  for  fellow  servant's  omission 
to  close  doors,  through  which  decedent  fell;  Berrigan  v.  New  York,  L.  E.  &  W. 
R.  Co.  131  N.  Y.  585,  30  N.  E.  57,  holding  brakeman  assumes  risk  of  engineer's 
negligence;  Bryant  v.  New  York  C.  &  H.  R.  R.  Co.  81  Hun,  168,  30  N.  Y.  Supp. 
737,  holding  railroad  not  liable  for  a  coemployee's  failure  to  observe  rules; 
Reynolds  v.  Kneeland,  63  Hun,  289,  17  N.  Y.  Supp.  895,  holding  one  cannot  re- 
cover for  negligence  of  fellow  servants  using  defective  appliance  originally  per- 
fect; Henry  v.  Ann  Arbor  R.  Co.  140  Mich.  451,  103  N.  W.  846,  holding  that  a 
station  agent  in  lowering  a  platform  used  in  unloading  freight  exercises  the 
act  of  a  fellow  servant  to  a  conductor  who  is  injured  thereby;  Ford  v.  Lake  Shore 
&  M.  S.  R.  Co.  2  Silv.  Ct.  App.  463,  22  N.  E.  946,  holding  company  not  liable  for 
injury  to  employee  caused  by  lumber  falling  from  car  where  company  supplied 
car  capable  of  holding  lumber  loaded  thereon  but  the  loaders  failed  to  properly 
load,  though  the  car  was  not  a  lumber  car;  Koehler  v.  Xew  York  Steam  Co.  84 
App.  Div.  224.  82  X.  Y.  Supp.  588,  holding  employer  not  liable  though  steam  ap- 
pliance is  defective,  he  having  made  provision  for  inspection  by  competent  serv- 
ant; Fouquet  v.  New  York  C.  &  H.  R.  R.  Co.  53  Misc.  124,  103  N.  Y.  Supp.  1105, 
holding  that  a  draftsman  working  in  engineering  department  of  railway  com- 
pany is  a  fellow  servant  with  the  person  running  the  elevator  in  building  which 
the  department  is  located. 

Cited  in  footnotes  to  Dewey  v.  Detroit,  G.  H.  &  M.  R.  Co.  22  L.  R.  A.  292, 
which  holds  railroad  company  not  liable  for  injury  to  brakeman  by  load  pro- 
jecting beyond  end  of  Hat  car;  Buck  v.  New  Jersey  Zinc  Co.  60  L.  R.  A.  453, 
which  holds  blacksmith  in  factory  making  link  for  chain  to  keep  box  of  dump 
car  in  position  a  fellow  servant  of  one  using  car. 

Cited  in  notes  (4  L.  R.  A.  794,  5  L.  R.  A.  735)  on  who  are  fellow  servants; 
(50  L.  R.  A.  429)  on  what  servants  are  deemed  to  be  in  same  common  employ- 
ment apart  from  statutes,  where  no  questions  as  to  vice  principalship  arise; 
(54  L.  R.  A.  127,  161)  on  vice  principalship  as  determined  with  reference  to 
character  of  act  causing  injury;  (75  Am.  St.  Rep.  604,  605,  622)  on  who  is  a 
vice  principal. 

Distinguished  in  Pennsylvania  R.  Co.  v.  La  Rue.  27  C.  C.  A.  366,  55  U.  S. 
App.  20,  81  Fed.  151,  holding  railroad  liable  for  fellow  servant's  leaving  de- 
fective side  stake  on  lumber  car;  Little  Rock  &  M.  R.  Co.  v.  Moseley,  6  C.  C. 


4  L.R.A.  151]  L.  R.  A.  CASES  AS  AUTHORITIES.  634 

A.  228,  12  U.  S.  App.  514,  56  Fed.  1012,  holding  railroad  liable  to  switchman 
for  car  inspector's  failure  to  repair  defective  coupling;  Hogaii  v.  Smith,  31  N. 
Y.  S.  R.  801,  9  N.  Y.  Supp.  881,  holding  one  injured  through  defect  in  platform 
built  by  coemployees  entitled  to  go  to  jury  on  question  of  competency. 

Disapproved  in  Frank  v.  American  Tartar  Co.  91  App.  Div.  575,  87  X.  Y.  Supp. 
-219,  holding  negligence  of  servant  intrusted  by  master  with  duty  of  inspection  of 
.appliances  is  attributable  to  master. 
I)ui  >    to    furnish    proper   appliances. 

Cited  in  McCampbell  v.  Cunard  S.  S.  Co.  36  N.  Y.  S.  R.  854,  13  N.  Y.  Supp. 
288,  holding  employer  furnishing  reasonably  safe  appliances  not  liable  to  em- 
ployee; Woods  v.  Long  Island  R.  Co.  11  App.  Div.  19,  42  N.  Y.  Supp.  140,  hold- 
ing railroad  liable  for  misadjustment  of  brake  rod  on  car,  not  part  of  train- 
hand's  duty;  Irvine  v.  Flint  &  P.  M.  R.  Co.  89  Mich.  419,  50  N.  W.  1008,  holding 
railroad  liable  for  improper  loading,  making  car  unsafe  for  brakeman;  Jennings 
v.  New  York,  N.  H.  &  H.  R.  Co.  12  Misc.  412,  33  N.  Y.  Supp.  585,  holding  rail- 
road liable  to  brakeman  for  negligence  of  car  inspector;  Van  Tassell  v.  Xe\v 
York,  L.  E.  &  W.  R.  Co.  1  Misc.  303,  20  N.  *.  Supp.  708,  holding  railroad  re- 
lieved from  liability  to  employee  for  defective  appliances,  by  adopting  rules  for 
inspection;  La  Croy  v.  New  York,  L.  E.  &  W.  R.  Co.  132  N.  Y.  572,  30  N.  E.  391, 
Reversing  57  Hun,  71,  10  N.  Y.  Supp.  382,  holding  railroad  not  liable  to  brake- 
man knowingly  disobeying  rule  requiring  brakes  to  be  tested;  La  Croy  v.  Xe\v 
York,  L.  E.  &  W.  R.  Co.  4  Silv.  Sup.  Ct.  App.  126,  30  N.  E.  391,  on  the  duty 
of  company  to  furnish  its  employees  with  rules  and  regulations. 

Cited  in  notes  (41  L.R.A.  123,  125)  on  assignability  of  duty  of  inspection; 
(13  L.R.A.(X.S-)  388,  389)  on  liability  of  railroad  to  employee  for  injuries  caused 
by  defectively  loaded  car;  (98  Am.  St.  Rep.  302)  on  liability  to  servant  for  in- 
juries due  to  defective  machinery  and  appliances. 

Distinguished  in  Dougherty  v.  Rome,  W.  &  O.  R.  Co.  45  N.  Y.  S.  R.  156,  18 
N.   Y.   Supp.   841,   holding  railroad   liable  to   section   foreman   struck   by  timber 
projecting  because  of  defective  side  stake. 
Assumption   of  risk. 

Cited  in  Devoe  v.  New  York  C.  &  H.  R.  R.  Co.  70  App.  Div.  499,  75  N.  Y. 
Supp.  136,  holding  railroad  employee  presumed  to  acquiesce  in  known  rules. 

Cited  in  note   (43  L.  R.  A.  373)    on  duty  of  servant  as  to  rules  promulgated 
by  employer.  ' 
>:<>timi   for  nonsnit;   when  exception  to   denial   waived. 

Distinguished  in  Hopkins  v.  Clark,  158  X.  Y.  303,  53  X.  E.  27,  holding  fail- 
ure to  renew  motion  for  nonsuit  before  going  to  jury  waives  exception. 

4  L.  R.  A.  154,  CARROLL  v.  GILES,  30  S.  C.  412,  9  S.  E.  422. 
•Contracts  In  restraint  of   trade. 

Cited  in  Southworth  v.  Davison,  106  Minn.  121,  19  L.R.A.(N.S.)  771,  118  N.  W. 
363,  16  A.  &  E.  Ann.  Cas.  253,  holding  that  a  sale  of  good  will  and  business  is 
not  void  if  the  good  will  is  not  limited  as  to  time  where  there  is  a  proper  limita- 
tion as  to  place. 

Cited  in  footnotes  to  Clark  v.  Needham,  51  L.  R.  A.  785,  which  holds  void,  lease 
of  manufacturing  machinery  with  agreement  against  lessor  engaging  in  business 
for  five  years;  Wilkinson  v.  Colley,  26  L.  R.  A.  114,  which  holds  injunction 
against  violating  agreement  not  to  practise  medicine  not  prevented  by  naming 
penalty;  Kramer  v.  Old,  3,4  L.  R.  A.  389,  which  sustains  contract  restricting 
seller  from  engaging  in  milling  business  in  vicinity  of  certain  city. 

Cited  in  notes   (11  L.  R.  A.  504)   on  validity  of  contracts  in  restraint  of  trade 


635  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  158 

throughout  state;  (8  L.  R.  A.  470)  on  contracts  in  partial  restraint  of  trade 
as  to  locality;  (11  L.  R.  A.  438)  on  contracts  in  partial  restraint  of  trade  pre- 
sumptively void;  (24  L.R.A.(N.S-)  926)  on  validity  of  agreement  in  restraint  of 
trade,  ancillary  to  sale  of  business  or  profession,  as  affected  by  territorial  scope; 
(6  Eng.  Rul.  Gas.  452)  on  invalidity  of  contracts  in  restraint  of  trade. 
To  prevent  competition. 

Cited  in  Walter  A.  Wood  Mowing  &  Reaping  Co.  v.  Greenwood  Hardware  Co. 
75  S.  C.  386,  9  L.R.A.(N.S.)  507,  55  S.  E.  973,  9  A.  &  E.  Ann.  Gas.  902,  holding  a 
contract  by  which  a  retailer  agrees  to  buy  of  wholesaler  exclusively  and  whole- 
saler agrees  to  sell  to  retailer  exclusively  certain  machinery  to  be  sold  in  certain 
territory,  is  not  in  general  restraint  of  trade;  Turner  v.  Abbott,  116  Tenn.  730, 
6  L.R.A.(N.S.)  897,  94  S.  W.  64,  8  A.  &  E.  Ann.  Gas.  150,  holding  that  one 
who  has7  neither  good  will  nor  place  of  business  may  contract  not  to  start  a  busi- 
ness in  competition  with  the  other  party  to  the  contract. 

Cited  in  footnotes  to  Gloucester  Isinglass  &  Glue  Co.  v.  Russia  Cement  Co.  Is! 
L.  R.  A.  563,  which  holds  agreement  to  prevent  competition  between  corporations 
in  manufacture  of  glue  under  patent,  valid;  Nester  v.  Continental  Brewing  Co. 
24  L.  R.  A.  247,  which  holds  combination  of  brewers  to  stifle  competition  with- 
in specified  place  void;  Chaplin  v.  Brown,  12  L.  R.  A.  428,  which  holds  grocer's 
agreement  not  to  buy  butter  from  makers  for  two  years,  if  firm  opens  butter 
store,  void;  More  v.  Bennett,  15  L.  R.  A.  361,  which  holds  association  of  stenog- 
raphers to  control  prices  for  work  illegal  combination;  Texas  Standard  Cotton 
Oil  Co.  v.  Adoue,  15  L.  R.  A.  598,  which  holds  combination  to  fix  prices  of  cot- 
ton seed  and  seed  cotton  void;  Stockton  v.  Central  R.  Go.  17  L.  R.  A.  97,  which 
holds  that  lease  of  railroad  franchises  and  roads  tends  to  monopoly;  State  v. 
Phipps,  18  L.  R.  A.  658,  which  holds  combination  by  foreign  companies  to  in- 
crease rates  of  insurance  unlawful;  State  ex  rel.  Watson  v.  Standard  Oil  Co.  15 
L.  R.  A.  145,  which  holds  agreement  for  transfer  of  corporate  stock  to  trustees 
to  vote  and  receive  dividends  void;  Pittsburgh  Carbon  Co.  v.  McMillin,  7  L.  R. 
A.  46,  which  holds  party  to  illegal  trust  combination  not  entitled  to  proceeds  as 
against  receiver  of  trust  assets. 

Cited  in  notes  (13  L.  R.  A.  771)  on  nature  of  monopolies;  (12  L.  R.  A.  i54) 
on  remedy  against  monopoly  by  injunction;  (24  L.R.A.(N.S.)  934,  936,  941)  on 
validity  of  agreement  by  employee  not  to  engage  in  competing  business,  as 
affected  by  scope  in  time  and  territorial  extent. 

4  L.  R.  A.  158,  DAWE  v.  MORRIS,  149  Mass.  188,  14  Am.  St.  Rep.  404,  21  N.  E. 

313. 
\\  In-ii    action    for    deceit    lies. 

Cited  in  Durkin  v.  Cobleigh,  156  Mass.  Ill,  32  Am.  St.  Rep.  436,  30  N.  E. 
474,  holding  that  false  representation  to  grantee  as  to  existence  of  right  of  way 
appurtenant  to  estate  granted  is  actionable;  Kilgore  v.  Bruce,  166  Mass.  138, 
44  N.  E.  108,  holding  false  statements  as  to  market  value  of  articles  offered  for 
sale  actionable,  if  made  to  unskilled  person;  iJullock  v.  Wooldridge,  42  Mo.  App. 
362,  holding  misrepresentation  not  ground  for  action  for  deceit  unless  made  as 
to  existing  fact;  Alletson  v.  Powers,  72  Vt.  418,  48  Atl.  647,  holding  failure  of 
grantee  to  pay  interest  due  on  existing  mortgage  which  he  was  told  could  run 
for  ten  years  if  interest  paid,  precludes  him  from  bringing  action  for  deceit;  Mc- 
Cuskor  v.  Geiger.  195  Mass.  55,  80  X.  E.  648,  holding  a  misrepresentation  of  a 
fact  procuring  the  execution  of  a  contract  not  actionable  where  wrong  done  came 
from  a  breach  of  the  contract  and  not  from  the  misrepresentation;  Mabnrdy  v. 
MoTIugh,  202  Mass.  149,  23  L.R.A.(N.S.)  491,  132  Am.  St.  Rep.  484,  88  N.  E.  894, 


4  L.R.A.  158]  L.  R.  A.  CASES  Ab  AUTHOEITIES.  636: 

16  A.  &  E.  Ann.  Cas.  500,  as  an  indication  of  the  plain  disposition  of  the  court 
not  to  extend  legal  immunity  for  the  falsehood  of  vendors  in  the  course  of  nego- 
tiations for  sales  beyond  the  bounds  already  established;  Cerny  v.  Paxton  &  G. 
Co.  78  Neb.  138,  10  L.R.A.(N.S.)  648,  110  N.  W.  882,  holding  that  where  creditor 
obtains  mortgage  in  security  of  debt  by  promise,  which  he  does  not  intend  to 
keep,  that  he  will  not  allow  property  mortgaged  to  be  sold  under  an  agreed  price 
the  promise  is  part  consideration  for  mortgage  not  void  under  statute  of  frauds 
and  a  breach  thereof  is  actionable  fraud. 

Annotation  cited  in  Anderson  v.  G.  Heileman  Brewing  Co.  104  Minn.  329,  116 
N.  W.  655,  holding  a  complaint  in  an  action  for  fraud  and  deceit  to  be  deficient 
for  failure  to  allege  or  show  that  the  loss  or  damage  suffered  was  by  reason  of 
the  fraud  alleged. 

Cited  in  footnotes  to  Chicora  Fertilizer  Co.  v.  Dunan,  50  L.  R.  A.  401,  which 
holds  failure  to  inform  creditor  of  pending  negotiations  increasing  value  of 
collateral  security  sought  to  be  released  not  fraudulent  concealment;  Nash  v. 
Minnesota  Title  Ins.  &  T.  Co.  28  L.  R.  A.  753,  which  requires  intent  to  deceive 
to  sustain  action  for  false  representations  inducing  execution  of  contract;  Opie 
v.  Pacific  Investment  Co.  56  L.  R.  A.  778,  which  denies  duty  of  indorser  to  dis- 
close to  mortgagee  knowledge  as  to  value  of  mortgage  which  he  attempts  to  buy 
for  third  person. 

Cited  in  notes  (6  L.  R.  A.  150,  151)  on  right  of  action  for  deceit;  (11  L.  R, 
A.  197)  on  actions  for  deceit  and  fraudulent  representations;  (4  L.  R.  A.  146) 
on  election  of  remedies;  (10  L.R.A.(N.S-)  644)  on  future  promise  as  fraud;  (IS 
Am.  St.  Rep.  558,  559,  561)  on  liability  for  false  representations;  (12  Eng.  Rul. 
Cas.  297)  on  what  constitutes  fraud  and  liability  therefor. 
False  representations  as  ground  for  rescission  of  contract. 

Cited  in  Barnes  v.  Starr,  64  Conn.  156,  28  Atl.  980,  holding  promise  to  do  act 
in  future  not  such  fraudulent  representation  as  affords  ground  for  cancelation^ 
of  contract;  Birmingham  Warehouse  &  Elevator  Co.  v.  Elyton  Land  Co.  93  Ala. 
554,  9  So.  235,  holding  representation  by  vendor  as  to  location  of  railroad  near 
land  not  ground  for  rescission,  unless  fraudulently  made  with  intent  to  deceive; 
Macklem  v.  Fales,  130  Mich.  72,  89  N.  W.  581,  holding  fraud  not  shown  by  testi- 
mony of  parties  as  to  representations  as  to  cost  of  sale  of  article,  no  sugges- 
tions as  to  such  expense  appearing  in  written  contract;  Lyons  Buriel  Vault  Co.. 
v.  Taylor,  198  Mass.  69,  84  N.  E.  320,  holding  that  where  it  might  be  found  that 
purchasers  are  wholly  ignorant  or  unskilled  to  the  extent  that  they  rely  on  state- 
ment made,  it  is  for  the  jury  to  determine  now  for  they  are  justified  in  relying  on 
statements;  McLennon  v.  Siebel,  135  Mo.  App.  264,  115  S.  W.  484,  holding  that 
reliance  on  the  misstatement  by  the  party  injured  is  necessary  to  justify  a  rescis- 
sion of  contract  for  misrepresentation. 

Cited  in  notes  (6  L.  R.  A.  219)  on  false  representations  inducing  entry  into, 
contract;  (10  L.  R.  A.  606)  on  contracts  obtained  by  circumvention  and  deceit.. 
Conspiracy  to  defraud. 

Cited  in  Field  v.  Siegel,  99  Wis.  610,  47  L.  R.  A.  440,  75  N.  W.  397..  holding 
combination  with  insolvent  debtor  to  enable  him  to  cover  up  property  to  defeat 
claim  for  goods  previously  purchased  not  ground  for  action;  Com.  v.  Stuart,  207 
Mass.  569,  93  N.  E.  825,  holding  that  proof  of  obtaining  money  in  payment  for 
supposed  half  interest  in  another's  pretended  business  by  false  representations  as 
to  its  profits,  part  of  general  scheme  to  defraud,  will  sustain  indictment  for 
larceny. 


337  L.  E.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  171 

4   L.  R.  A.   161,   HURLEY   v.   STATE,  46  Ohio  St.  320,  21   N.   E.  645. 
Impeachment   of   witness   by   party   calling;   him. 

Cited  with  special  approval  in  Mascurides  v.  State,  86  Neb.  113,  125  N.  W. 
132,  holding  signed  statement  made  by  eye-witness  was  not  admissible  to  con- 
tradict testimony  of  such  witness  on  stand. 

Cited  in  State  v.  Steeves,  29  Or.  105,  43  Pac.  947,  holding  impeachment  by 
showing  statements  inconsistent  with  testimony  not  permitted,  unless  testimony 
be  material  and  prejudicial  to  party  calling  him;  Masourides  v.  State,  86  Xeb. 
113,  125  X.  W.  132,  holding  that  ordinarily  a  party  cannot  introduce  evidence 
for  the  sole  purpose  of  impeaching  his  own  witness  but  he  may  show  the  truth 
by  other  witnesses  without  regard  to  contradictory  declarations  of  impeached 
witness;  Mustill  v.  Thornton,  22  Ohio  C.  C.  612,  12  Ohio  C.  D.  596,  holding  that 
witness  may  be  questioned  by  party  calling  him  as  to  contradictory  statements 
made  out  of  court ;  Katafiasz  v.  Toledo  Consol.  Electric  Co.  1  Ohio  C.  C.  X.  S.  133, 
24  Ohio  C.  C.  130,  holding  in  admissible  evidence  that  witness  called  by  a  party 
did  not  state  the  facts  to  which  he  has  testified  to  counsel  when  asked  to  state 
all  he  knew  about  the  case  outside  of  court. 

Cited  in  notes    (21   L.  R.  A.  427,  429)    on  right  to  impeach  own  witness  by 
proof  of  contradictory  or  inconsistent  statements;    (82  Am.  St.  Rep.  57,  59;    11 
Eng.  Rul.  Cas.  162)    on  discretion  of  court  as  to  permitting  cross-examination 
of  one's  own  witness. 
Interrogating  own  witness  as  to  statements  Inconsistent  with  testimony. 

Cited  in  Carpenter's  Appeal,  74  Conn.  436,  51  Atl.  126,  holding  party  sur- 
prised by  witness  may,  in  discretion  of  court,  examine  him  as  to  statements 
contradictory  of  his  testimony;  Hall  v.  Chicago,  R.  I.  &  P.  R.  Co.  84  Iowa,  316, 
51  X.  W.  150,  and  Oldfather  v.  Zent,  21  Ind.  App.  312,  52  N.  E.  236,  holding 
examination  permitted  for  purposes  of  proving  recollection,  showing  testimony 
incorrect,  and  affording  opportunity  to  explain;  Arnold  v  State,  5  Wyo.  446.  40 
Pac.  967,  holding  unwilling  witness  may  be  interrogated,  by  party  calling  him, 
concerning  previous  statements  contradictory  of  his  testimony;  State  v.  Hughes, 
8  Kan.  App.  634,  56  Pac.  142,  holding  prosecution  in  criminal  case  may  inter- 
rogate witness  as  to  statements  previously  made  in  affidavit  inconsistent  with 
testimony;  People  v.  Elco,  131  Mich.  530,  94  X.  W.  1069,  upholding  right  of 
people  to  show  contradictory  statements  of  hostile  witness  called  by  district 
attorney:  Van  Zandt  v.  State,  13  Ohio  C.  C.  X.  S.  527,  32  Ohio  C.  C.  138,  holding 
cross-examination  by  prosecuting  attorney  of  state's  witness  concerning  state- 
ments by  him  at  another  time  before  grand  jury  and  coroner  not  prejudicial  error; 
State  v.  Sederstrom,  99  Minn.  235,  109  X.  W.  113,  on  the  rule  that  a  party  who  is 
surprised  by  the  testimony  of  a  witness  which  he  has  called  may  be  allowed  to 
show  that  the  witness  had  previously  made  statements  contrary  to  his  testimony. 

Disapproved  in  effect  in  Putnam  v.  United  States,  162  U.  S.  697,  40  L.  ed. 
1122.  16  Sup.  Ct.  Rep.  923,  holding  prosecution  in  criminal  case  not  permitted 
to  refresh  memory  of  witness  by  reference  to  testimony  given  before  grand  jury. 

4  L.  R.  A.  171,  WALLACE  v.  MYERS,  38  Fed.  184. 
Succession  of  inheritance  tax. 

Followed  in  Plummer  v.  Coler,  178  U.  S.  131,  134,  44  L.  ed.  1007,  20  Sup.  Ct. 
Rep.  829,  Affirming  Re  Plummer,  30  Misc.  20,  62  X.  Y.  Supp.  1024,  holding  suc- 
cession tax  a  tax.  not  on  property,  but  on  its  transmission  by  will  or  descent; 
Re  Wolfe.  2  Connoly.  617,  15  X.  Y.  Supp.  539,  holding  that  a  proceeding  to  enforce 
a  tax  on  legacies  is  not  in  rem;  Re  Tuigg,  2  Connoly,  635,  15  X.  Y.  Supp.  548, 
holding  a  bequest  of  United  States  bonds  subject  to  legacy  tax. 


4  L.R.A.  171]  L.  R.  A.  CASES  AS  AUTHORITIES.  638 

Cited  in  State  v.  Alston,  94  Tenn.  680,  28  L.  R.  A.  180,  30  S.  W.  750,  holding- 
right  of  succession  statutory,  not  natural,  therefore  taxable;  Gelsthorpe  v.  Fur- 
nell,  20  Mont.  304,  39  L.  R.  A.  173,  51  Pac.  267,  and  Minot  v.  Winthrop,  162  Mass. 
119,  26  L.  R.  A.  262,  38  N.  E.  512,  holding  inheritance  tax  of  privilege  is  not 
property;  State  v.  Alston,  94  Tenn.  682,  28  L.  R.  A.  180,  30  S.  W.  750,  holding 
exemption  of  direct  descendants  and  estates  less  than  $250  does  not  invalidate 
inheritance  tax  act  for  want  of  uniformity;  United  States  v.  Perkins,  163  U. 
S.  629,  41  L.  ed.  288,  16  Sup.  Ct.  Rep.  1073;  Cullom's  Estate,  5  Mi.sc.  174,  25  N. 
Y.  Supp.  699;  Re  Merriam,  73  Hun,  589,  26  N.  Y.  Supp.  191, — holding  legacy 
to  United  States  subject  to  inheritance  tax;  Blackstone  v.  Miller,  188  U.  S.  207r 
47  L.  ed.  445,  23  Sup.  Ct.  Rep.  277,  upholding  validity  of  New  York  transfer 
tax  upon  property  of  Illinois  testator,  deposited  while  law  was  in  force;  Booth 
v.  Com.  (Rodman  v.  Com.)  130  Ky.  106,  33  L.R.A.(X.S.)  605,  113  S.  W.  61, 
holding  inheritance  tax  valid  though  effect  is  to  tax  property  otherwise  exempt; 
Re  Vanderbilt,  2  Connoly,  322,  10  X.  Y.  Supp.  239,  holding  a  statute  requiring  all 
actions  to  recover  a  statutory  penalty  or  forfeiture  to  be  brought  within  two 
years,  from  accrual  of  right  has  no  application  to  proceedings  to  enforce  a  tax 
on  devolution  of  property;  Atty.  Gen.  v.  Lovitt,  35  X.  S.  228,  holding  that  a 
bequest  of  debentures  of  the  province  of  Nova  Scotia  exempted  by  statute  from 
taxation  for  provincial  local  or  municipal  purposes,  is  subject  to  valuation  of 
property  for  taxation  under  succession  Duty  act. 

Cited  in  footnotes  to  Billings  v.  People,  59  L.  R.  A.  807,  which  sustains  trans- 
fer tax  on  lineal  descendants  to  whom  life  estate  given  with  remainder  to  lineal 
descendants,  but  exempting  lineal  descendants  taking  fee;  State  v.  Hamlin,' 25 
L.  R.  A.  632,  which  holds  succession  tax  valid;  Drew  v.  Tifl't,  47  -L.  R.  A.  525, 
which  requires  unifofmity  and  equal  application  in  exemption  from  inheritance 
tax;  Re  Swift,  18  L.  R.  A.  709,  as  to  what  is  subject  to  succession  tax;  Ferry  v. 
Campbell,  50  L.  R.  A.  92,  which  holds  succession  tax  void  for  want  of  notice 
of  proceedings  to  fix  amount  of  tax. 

Cited  in  notes  (12  L.  R.  A.  402)  on  consideration  of  laws  imposing  collateral 
inheritance  tax ;  ( 12  L.  R.  A.  852 )  on  exemption  of  church  property  from  special 
assessment  under  exemption  from  taxes  generally;  (6  L.R.A.(X.S.)  736)  on  classi- 
fication for  purposes  of  succession  tax  on  basis  of  amount;  9  L.R.A.(X.S.)  122) 
on  nature  of  right  to  take  by  will  or  inheritance;  (23  L.R.A. (X.S.)  1208)  on 
applicability  of  general  tax  exemptions  to  inheritance  or  succession  taxes;  (33 
L.R.A.(X.S.)  609)  on  nature  of  inheritance  tax;  (33  L.R.A.(X.S-)  594,  599;  41 
Am.  St.  Rep.  581,  583)  on  constitutionality  of  collateral  inheritance  tax  law; 
(127  Am.  St.  Rep.  1065)  on  inheritance  taxation;  (1  Brit.  Rul.  Cas.  879)  aa  to 
whether  general  exemption  from  taxation  comprehends  death  duties. 
License  tax;  foreign  corporations. 

Cited  in  Southern  Cotton  Oil  Co.  v.  Wemple,  44  Fed.  25,  holding  taxation 
of  foreign  corporations  doing  business  within  state  not  affected  by  taxability  of 
corporate  property. 

Cited  in  note  (60  L.  R.  A.  339,  344)  on  constitutional  equality  in  the  United 
States  in  relation  to  corporate  taxation. 

4  L.  R.  A.  173,  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  v.  RICE,  51  Ark.  467,  11  S.  W.  699. 
Duty  of  master  as  to  safety  of  appliances  and  place  to  Trorlc. 

Cited  In  Southwestern  Teleph.  Co.  v.  Woughter,  56  Ark.  211,  19  S.  W.  575, 
holding  master  bound  to  use  reasonable  care,  diligence,  and  caution  in  provid- 
ing for  safety  of  servant  as  to  place  to  work  and  appliances;  St.  Louis  &  S.  F. 
R.  Co.  v.  Fritts,  85  Ark.  463,  108  S.  W.  841,  holding  employer  not  an  insurer 
of  safety  of  appliances  but  to  be  under  duty  of  using  ordinary  care  in  seeing 


639  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  173 

that  appliances  are  reasonably  safe  and  are  .so  kept  for  their  intended  use; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Holmes,  88  Ark.  187,  114  S.  W.  221,  holding 
refusal  of  instruction  that  failure  to  inspect  raised  no  presumption  of  negli- 
gence, proper;  Murch  Bros.  Constr.  Co.  v.  Hays,  88  Ark.  296,  114  S.  W.  697, 
holding  that  employer  in  construction  of  scaffolding  used  in  erection  of  building 
must  use  the  diligence  an  ordinarily  prudent  person  would  use  under  similar 
circumstances;  Ozan  Lumber  Co.  v.  Bryan,  90  Ark.  227,  119  S.  W.  73,  holding 
duty  to  provide  safe  appliances  and  place  to  work  requires  that  he  make  rea- 
sonable inspection  to  discover  latent  defects  and  dangers;  Woodson  v.  Prescott 
&  N.  W.  R.  Co.  91  Ark.  393,  121  S.  W.  273,  holding  plaintiff  entitled  to  a  suitable 
instruction  presenting  duty  of  master  to  properly  inspect  appliances;  St.  Louisr 
I.  M.  &.S.  R.  Co.  v.  York,  92  Ark.  559,  123  S.  W.  376,  holding  that  where  com- 
pany fails  to  inspect  couplings  there  is  a  failure  to  exercise  ordinary  care  in 
providing  safe  appliances;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Rogers,  93  Ark.  569r 
126  S.  W.  375,  holding  railroad  liable  for  injury  to  brakeman  from  defective 
car  stirrup. 

Cited  in  notes  (41  L.  R.  A.  75)  on  duty  of  active  inspection  of  instrumen- 
talities; (41  L.R.A.  110,  111)  on  assignability  of  duty  of  inspection;  (31  Am.  St. 
Rep.  349)  on  masters'  duty  to  provide  safe  appliances  and  competent  co-laborers; 
(98  Am.  St.  Rep.  319)  on  liability  to  servant  for  injuries  due  to  defective  ma- 
chinery and  appliances. 
Acts  of  servant  constituting  contributory  negligence. 

Cited  in  Bloyd  v.  St.  Louis  &  S.  F.  R.  Co.  58  Ark.  79,  41  Am.  St.  Rep.  85,  22 
S.  W.  1089,  approving  rule  as  to  degree  of  care  servant  required  to  exercise  for 
nis  own  safety;  Kansas  &  A.  V.  R.  Co.  v.  White,  14  C.  C.  A.  484,  32  U.  S.  App. 
192,  67  Fed.  483,  holding  that  if  accident  causing  injury  would  have  happened, 
and  been  attended  with  same  results,  even  if  party  injured  had  not  been  guilty 
of  alleged  negligent  act,  his  negligence  is  not  "contributory;"  Bennett  v.  North- 
ern P.  R.  Co.  2  N.  D.  112,  13  L.  R.  A.  471,  49  N.  W.  408,  holding  failure  of 
switchman  to  examine  drawbar  before  making  coupling,  as  rule  required,  con- 
tributory negligence;  Johnson  v.  Chesapeake  &  O.  R.  Co.  38  W.  Va.  210,  18  S. 
E.  573,  holding  brakeman  uncoupling  cars  while  in  motion,  contrary  to  rule, 
guilty  of  contributory  negligence;  Keeley  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  158 
111.  App.  243,  holding  that  brakeman  cannot  recover,  where  he  knowingly  violated 
rule  against  going  between  cars  to  couple  them. 

Cited  in  footnote  to  Goodrich  v.  Xew  York  C.  &  H.  R.  R.  Co.  5  L.  R.  A.  750,. 
which  holds  brakeman  not  negligent  per  se  in  coupling  cars  with  drawheads  of 
different  heights. 

Cited  in  notes   (24  L.  R.  A.  657)  on  disobedience  of  master's  rules  as  contribu- 
tory negligence;   (43  L.  R.  A.  366)   on  duty 'of  servant  in  regard  to  rules  promul- 
gated by  employer. 
Who    are    fellow    servants. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Brown,  67  Ark.  305,  54  S.  W.  865,  hold- 
ing locomotive  fireman  and  switchman  on  same  train  fellow  servants;  Kansas 
City,  Ft,  S.  &  M.  R.  Co.  v.  Becker,  63  Ark.  487,  39  S.  W.  358,  holding  that,  if 
neither  engineer  nor  fireman  on  train  have  superintendence  or  control  over  the 
other,  they  are  fellow  servants,  otherwise  not;  Alabama  G.  S.  R.  Co.  v.  Carroll,  97 
Ala.  129,  18  L.  R.  A.  435,  38  Am.  St.  Rep.  163.  11  So.  803,  holding  that  car  in- 
spector is  fellow  servant  of  brakeman  on  freight  train;  Snellen  v.  Kansas  City 
Southern  R.  Co.  82  Ark.  337.  102  S.  W.  193.  holding  a  car  repairer  working  on 
a  side  track  in  the  yards  to  be  a  fellow  servant  of  a  brakeman  and  switch  crew; 
Missouri,  K.  &  T.  R.  Co.  v.  V"?e.  101  Tex.  462,  109  S.  W.  112;  Root  v.  Kansaa 


4  L.K.A.  173]  L.  R.  A.  CASES  AS  AUTHORITIES.  640 

€ity  Southern  R.  Co.  195  Mo.  369,  6  L.R.A.(N.S.)   221,  92  S.  YV.  621,  on  who  are 
fellow  servants. 

Cited  in  notes  (4  L.  R.  A.  794)   on  who  are  fellow  servants;    (50  L.  R.  A.  420, 
435)    on  what  servants  are  deemed  in  common  employment;    (75  Am.  St.  Rep. 
598,  599)   on  who  is  a  vice  principal. 
Master's    responsibility    for    incompetency    of    inspector. 

Cited  in  note  (54  L.  R.  A.  159)   on  negligence  of  coservants  whose  duty  it  is  to 
keep  instrumentalities  in  proper  condition. 
Presumption  tbat  master  has  done  bis  duty. 

Cited  in  St.  Louis  &  S.  F.  R.  Co.  v.  Hill,  79  Ark.  81,  94  S.  W.  914,  holding 
that  there  is  no  presumption  that  company  is  negligent  from  the  mere  fact  of  a 
•wreck  and  injury  to  employee;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Andrews,  79  Ark. 
440,  96  S.  W.  183,  holding  burden  on  injured  person  to  show  that  master  failed 
to  furnish  reasonably  safe  place  to  work  and  negligence  cannot  be  inferred 
from  occurrance  of  an  injury;  St.  Louis  &  S.  F.  R.  Co.  v.  Wells,  82  Ark.  375, 
101  S.  W.  738,  holding  negligence  of  company  cannot  be  inferred  from  breaking 
•of  coupling  between  engine  and  tender,  burden  of  showing  negligence  being  on 
person  so  asserting;  Chicago  Mill  &  Lumber  Co.  v.  Cooper,  90  Ark.  331,  119  S. 
W.  672,  holding  a  charge  of  negligence  in  using  defective  machinery  causing 
injury  must  be  proven  by  preponderance  of  testimony  as  negligence  of  master 
•cannot  be  inferred  from  happening  of  the  injury. 
Inference  as  to  verdict. 

Cited  in  Merchants'  Exch.  Co.  v.  Sanders,  74  Ark.  18,  84  S.  W.  786,  4  A.  4  E. 
Ann.  Cas.  955,  holding  that  the  court  must  draw  the  inference  in  favor  of  a 
finding  of  jury  that  it  was  warranted  by  the  evidence;  Waters-Pierce  Oil  Co.  v. 
Knisel,  79  Ark.  622,  96  S.  W.  342;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Hill,  74  Ark. 
480,  86  S.  W.  303, — holding  that  in  determining  whether  verdict  was  warranted 
by  the  evidence  the  strongest  inference  should  be  given  in  favor  of  the  finding 
of  the  jury. 

4  L.  R.  A.  178,  JONES  v.  BRITTON,  102  N.  C.  166,  9  S.  E.  554. 
Homestead   rights. 

Cited  in  Vanstory  v.  Thornton,  112  N.  C.  208  (dissenting  opinion  p.  212),  34 
Am.  St.  Rep.  483,  17  S.  E.  566,  majority  holding  that  exemption  from  execution 
•on  judgments  against  vendor  passes  to  purchaser  of  homestead;  Stern  v.  Lee,  115 
N.  C.  445,  26  L.  R.  A.  817,  20  S.  E.  736  (concurring  opinion),  and  Gardner  v. 
Batts,  114  N.  C.  504,  19  S.  E.  794  (dissenting  opinion) ,  majority  in  each  case 
holding  enforcement  of  judgment  against  vendor  of  homestead  postponed  until 
"his  death  and  majority  of  youngest  child;  Tucker  v.  Tucker,  108  N.  C.  237,  13  S. 
E.  5,  holding  widow  having  homestead  in  husband's  lands  tenant  for  life  within 
statute  providing  for  forfeiture  to  remainderman  upon  nonpayment  of  taxes; 
Joyner  v.  Sugg,  132  N.  C.  588,  44  S.  E.  122,  Affirming  on  rehearing,  131  N.  C. 
339,  42  S.  E.  828,  holding  that  entire  title,  less  $1,000  worth,  passed  by  deed  of 
trust  by  husband  in  which  wife  did  not  join,  reserving  homestead;  Chadbourn 
Sash,  Door  &  Blind  Co.  v.  Parker,  153  N.  C.  134,  69  S.  E.  1,  holding  that  grantee 
of  judgment  debtor  cannot  claim  homestead  as  against  levy  on  judgment  against 
latter  prior  to  conveyance. 
Of  judgment  creditors. 

Cited  in  Younger  v.  Ritchie,  116  N.  C.  784,  21  S.  E.  911,  holding  judgment 
•creditors  may  set  aside  fraudulent  conveyance  of  homestead;  Vevan  v.  Ellis,  i21 
N.  C.  234,  28  S.  E.  471,  holding  statute  of  limitation  of  judgment  lien  suspended 
•during  continuance  of  homestead,  notwithstanding  conveyance  of  land;  Thomas  v. 


641  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  190 

Fulford,  117  N.  C.  679,  23  S.  E.  635,  holding  foreclosure  of  mortgage  reserving 
homestead  rights  does  not  cut  off  subsequent  judgments;  Springs  v.  Pharr,  131  N. 
C.  194,  92  Am.  St.  Rep.  775,  42  S.  E.  590,  holding  lien  of  judgment  on  homestead 
not  lost  by  creditors  suing  and  obtaining  second  judgment  thereon;  Davenport 
v.  Fleming,  154  N.  C.  295,  70  S.  E.  472,  holding  that  judgment  creditor  of  debtor 
who  had  made  deed  in  trust  for  creditors  reserving  homestead,  cannot  enjoin 
cutting  of  timber  on  homestead  by  debtor. 
Injunction  against  \\ji>t«-  impairing  security  or  reversion. 

Cited  in  Farabow  v.  Green.  108  X.  C.  343,  12  S.  E.  1003,  holding  tenants  for 
life,  with  contingent  interest  in  fee,  may  be  enjoined  from  waste;  Lancaster 
County  v.  Fitzgerald,  74  Xeb.  436,  104  N.  W.  875,  13  A.  &  E.  Ann.  Cas.  88,  holding 
county  levying  taxes  may  maintain  suit  against  waste  of  real  estate  on  which 
taxes  are  past  due  and  unpaid  wrhere  the  waste  complained  of  would  reduce  value 
of  property  to  degree  of  its  failure  as  security;  Coffin  v.  Harris,  141  N.  C.  713, 
6  L.R.A. (X.S.)  127,  54  S.  E.  437  (dissenting  opinion),  on  the  right  of  creditor 
to  restrain  waste  to  property  of  debtor  security  for  the  debt,  where  waste  com- 
plained of  is  an  impairment  of  the  security. 

Distinguished  in  Williams  v.  Brown,  127  X.  C.  52,  37  S.  E.  86,  denying  right  to 
enjoin    mortgagee    from    foreclosing   mortgage    and    from    threatening   to   enjoin 
mortgagor  from  cutting  of  timber. 
Actions   affecting   title;    necessary  parties. 

Cited  in  Springer  v.  Sheets,  115  X.  C.  379,  20  S.  E.  469,  holding  beneficiary 
under  trust  deed  necessary  party  to  action  to  cancel  prior  mortgages  and  foreclose 
trust  deed. 

4  L.  R.  A.  190,  CITIZEXS'  XAT.  BAXK  v.  PIOLLET,  126  Pa.  194,  12  Am.  St. 

Rep.  860,  17  Atl.  603. 
Effect  of  agreement  written  on  note  or  bill. 

Cited  in  Sawyer  v.  Campbell,  107  Iowa,  401,  78  N.  W.  56,  holding  agreement 
on  face  of  note  before  delivery,  to  extend  time  of  payment  if  asked  for  by  all 
makers,  does  not  release  sureties;  De  Hass  v.  Roberts,  59  Fed.  856,  24  Pittsb.  L. 
•T.  X.  S.  274,  holding  that  assignment  indorsed  on  note  without  recourse  destroyed 
negotiability,  and  subsequent  indorsement  by  transferee  did  not  render  him  liable; 
De  Hass  v.  Dibert,  30  L.  R.  A.  192,  17  C.  C.  A.  83,  28  U.  S.  App.  559,  70  Fed. 
231,  holding  indorser  of  note,  assigned  to  him  by  payee  without  indorsement,  li- 
able to  his  indorsee. 
What  instruments  are  negotiable. 

Cited  in  Washington  County  v.  Williams,  49  C.  C.  A.  626,  111  Fed.  806,  holding 
Bounty  bonds  issued  to  aid  in  construction  of  railroad,  and  made  payable  by 
taxation,  not  negotiable;  Iron  City  Xat.  Bank  v.  McCord,  139  Pa.  59,  27  W.  X. 
C.  153,  11  L.  R.  A.  560,  23  Am.  St.  Rep.  166,  21  Atl.  143,  holding  order  requiring 
notice  ticket  and  depositor's  book  to  be  presented  on  payment,  non-negotiable; 
Valley  Xat.  Bank  v.  Crowell,  148  Pa.  286,  33  Am.  St.  Rep.  824,  23  Atl.  1068,  hold- 
ing statement  on  note  that  collateral  accompanies  it  does  not  destroy  negotiabil- 
ity; Benny  v.  Dunn,  2  Lack.  Legal  Xews,  138,  26  Pittsb.  L.  J.  X.  S.  382,  holding 
note  providing  for  sale  of  stock  deposited  as  collateral  if  depreciating  before  ma- 
turity, and  for  attorney's  fee,  not  negotiable;  City  Xat.  Bank  v.  Gunter  Bros.  67 
Kan.  233,  72  Pac.  842,  holding  note  containing  agreement  by  makers  and  indorsers 
to  all  extensions  and  partial  payments  not  negotiable;  Union  Stock  Yards  Xat. 
Bank  v.  Bolan,  14  Idaho,  94,  125  Am.  St.  Rep.  146,  93  Pac.  508,  holding  a 
promissory  note  containing  stipulation  waiving  notice  of  extension  of  time  to 
sureties,  guarantors,  indorsers  and  makers,  and  waiving  right  of  defense  for 
L.R.A.  Au.  Vol.  I. — 41. 


4  L.R.A.  190]  L.  R.  A.  CASES  AS  AUTHORITIES.  642 

extension  without  notice  is  non-negotiable  subject  to  all  defenses  and 
equities  in  favor  of  maker  while  in  hands  of  indorsee  the  same  as  if  in  hands 
of  payee  thereof:  first  Xat.  Bank  v.  Buttery,  17  X.  D.  333.  16  L.R.A. (X.S.) 
882,  116  X.  W.  341,  17  A.  &  E.  Ann.  Cas.  52  (dissenting  opinion),  on  non-nego- 
tiability of  a  note  on  face  of  which  is  written  an  agreement  for  renewal  at  ma- 
turity; Xeyens  v.  Port,  46  Pa.  Super.  Ct.  431,  holding  that  written  order  for 
goods  ending  with  words  of  a  promissory  note  is  not  negotiable;  Xational  Bank 
v.  Kenney,  35  Tex.  Civ.  App.  435,  80  S.  W.  555,  holding  a  note  non-negotiable 
where  containing  provision  for  waiver  of  protest  by  makers  and  indorsers  for 
nonpayment  at  maturity,  and  agreeing  to  extension  and  partial  payments. 

Cited  in  footnote  to  Xational  Bank  of  Commerce  v.  Feeney,  46  L.  R.  A.  732, 
which  holds  note  rendered  non-negotiable  by  stipulation  for  discount  at  12  per 
cent  if  paid  before  maturity. 

Cited  in  notes  (8  L.  R.  A.  394)  on  stipulations  and  agreements  which  destroy 
negotiability;  (31  L.  R.  A.  235)  on  provision  for  refusal  as  affecting  negotiabil- 
ity of  note;  (4  Eng.  Rul.  Cas.  192)  on  negotiability  of  note  or  bill  of  exchange. 

Distinguished  in  Anniston  Loan  &  T.  Co.  v.  Stickney,  108  Ala.  150,  31  L.  R.  A. 
237,  19  So.  63,  holding  that  agreement  to  extend  time  of  payment  to  definite  pe- 
riod, indorsed  on  note,  does  not  destroy  negotiability. 

4  L.  R.  A.  193,  PEARSALL  v.  EATON  COUXTY,  74  Mich.  558,  42  X.  W.  77. 
Rights  of  abutting:  otvners  in  street   or  stream. 

Cited  in  Callen  v.  Columbus  Edison  Electric  Light  Co.  66  Ohio  St.  177.  58  L. 
R.  A.  786,  64  N.  E.  141,  enjoining  maintenance  of  poles  and  wires  in  corner  of 
lot  on  street;  Bigelow  v.  Ballerino,  111  Cal.  564,  44  Pac.  307,  holding  abutting 
owners  right  to  use  of  street,  property  which  cannot  be  taken  without  compensa- 
tion; Long  v.  Wilson,  119  Iowa,  271,  60  L.  R.  A.  722,  97  Am.  St.  Rep.  315,  93 
N.  W.  282,  holding  abutting  owner  not  bound  by  decree  against  city  changing 
boundaries  of  street,  to  which  he  was  not  party;  Lathrop  v.  Racine,  119  Wis. 
473,  97  N.  W.  192,  holding  invalid,  charter  provisions  authorizing  city  to  order 
riparian  owners  to  build  or  pay  for  docks  regardless  of  benefits:  Marietta  Chair 
Co.  v.  Henderson,  121  Ga.  405,  104  Am.  St.  Rep.  156,  49  S.  E.  312,  2  A.  &  E. 
Ann.  Cas.  83,  on  the  right  of  abutting  property  owners  to  compensation  for  loss 
sustained  by  vacation  of  streets;  Ridgway  v.  Osceola,  139  Iowa.  594.  117  X.  W. 
974,  holding  that  where  a  street  or  alley  is  necessary  to  the  free  and  convenient 
access  to  abutting  property  such  street  or  alley  cannot  be  vacated  without  pay- 
ment of  damages  to  owner  of  such  property;  Smith  v.  Beloit,  122  Wig.  416.  100 
X.  W.  877,  holding  that  an  order  of  supervisors  vacating  a  part  of  a  road  does 
not  destroy  the  rights  of  abutting  landholders  to  use  such  vacated  part  as  a 
road  where  the  road  as  originally  platted  has  been  used  for  over  30  years; 
Johnston  v.  Lonstorf,  128  Wis.  27,  107  X.  W.  459,  holding  that  neither  the  city 
charter  nor  the  laws  authorizing  vacation  of  streets  authorize  a  vacation  of  part 
of  an  alley  without  compensating  protesting  abutting  owners. 

Cited  in  footnotes  to  Lostutter  v.  Aurora,  12  L.  R.  A.  259,  which  authorizes  city 
to  fit  up  abandoned  well  in  street  without  abutting  owner's  consent;  Levee  Dist. 
Xo.  9  v.  Farmer,  23  L.  R.  A.  388,  which  holds  discontinuance  of  road  not  taking 
or  damaging  of  abutter's  property. 

•'  Cited  in  notes  (26  L.  R.  A.  663,  665)  on  effect  of  abandonment  of  highway;  (5 
L.  R.  A.  661)  on  protection  of  private  rights  by  constitutional  law;  (26  L.  R.  A. 
456)  on  abandonment  of  highway  by  nonuser  or  otherwise  than  by  act  of  public 
authorities;  (2  L.R.A.(X.S.)  269)  on  right  of  property  owner  whose  access 
from  one  direction  is  shut  off  or  interfered  with  by  closing  of  street;  (15  L.R.A. 


643  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  196 

(X.S.)   50)   on  cutting  off  access  to  highway  as  a  taking;    (27  Am.  St.  Rep.  419; 
46  Am.  St.  Rep.  496)   on  recovery  of  damages  for  vacation  of  street. 

Distinguished  in  Levee  Dist.  No.  9  v.  Farmer,  101  Cal.  184,  23  L.  R.  A.  390,  35 
Pac.  569,  holding  vacation  of  public  road  cannot  be  enjoined;  Buhl  v.  Ft.  Street 
Union  Depot  Co..  98  Mich.  608,  23  L.  R.  A.  396,  57  N.  W.  829,  holding  partial 
closing  and  occupation  of  street  by  depot  company  damnum  absque  injuria  as  to 
abutting  owner;  Curry  v.  Place,  99  Mich.  527,  58  N.  W.  472,  holding  proceedings 
of  supervisors  in  closing  highway  without  notice  and  void;  Cram  v.  Laconia,  71 
N.  H.  48,  57  L.  R.  A.  286,  51  Atl.  635,  holding  discontinuance  of  part  of  street 
without  cutting  off  access  to  general  system  is  damnum  absque  injuria;  Backus 
v.  Ft.  Street  Union  Depot  Co.  16!)  U.  S.  585,  42  L.  ed.  864,  18  Sup.  Ct.  Rep.  445 
(dissenting  opinion),  majority  holding  that  no  error  in  state  court's  ruling 
as  to  compensation. 
Injury  to  property  by  eminent  domain. 

Cited  in  Stockdale  v.  Rio  Grande  Western  R.  Co.  28  Utah,  211,  77  Pac.  849, 
holding  that  any  substantial  interference  with  private  property  materially  re- 
ducing its  value  or  by  which  the  owners  right  to.  its  use  and  enjoyment  is 
abridged  or  lost  is  a  taking  of  private  property  though  possession  of  owner 
remains  undisturbed. 

Cited  in  note   (109  Am.  St.  Rep.  913)   on  what  constitutes  ''damage"  to  prop- 
erty within  provision  that  property  shall  not  be  taken  or  damaged  for  public 
use  without  compensation. 
Necessity  for  notice  in  condemnation  proceedings. 

Cited  in  note  (4  L.R.A. (X.S.)  170)  on  necessity  of  providing  in  statute  for 
notice  of  hearing  on  question  of  damages  for  compensation  in  condemnation. 

4  L.  R.  A.  194,  COOPER  v.  SIMPSON,  41  Minn.  46,  16  Am.  St.  Rep.  667,  42  N. 

W.  001. 
Liability  for  laches  in  care  of  property. 

Cited  in  Lindley  v.  Sullivan,  133  Ind.  593,  32  N.  E.  738,  holding  negligence  in 
making  collections  on  notes  not  shown;  Minneapolis  &  N.  Elevator  Co.  v.  Betcher, 
42  Minn.  211.  44  X.  W.  5,  holding  pledgee  not  compelled  to  sell  pledged  property 
at  request  of  pledgeor;  Loomis  v.  Reimers,  119  Iowa.  172,  93  N.  W.  95,  holding 
bailee  not  liable  for  loss  of  goods  replevied,  for  failure  to  defend  action;  Johnson 
v.  Downing,  76  Ark.  131,  88  S.  W.  825,  holding  that  the  pledgees  of  a  note  as 
collateral  security  are  bound  to  use  only  reasonable  diligence  to  collect  it  and 
are  liable  only  for  negligence  in  failing  to  properly  enforce  the  collection  of  the 
note,  and  protect  the  owner  from  loss. 

Cited  in  notes  (17  L.R.A.  194;  83  Am.  St.  Rep.  392)  on  duty  of  pledgee  as  to 
care  of  thing  pledged. 

Distinguished  in  Townsend  v.  Minneapolis  Cold-Storage  &  Freezer  Co.  46  Minn. 
125,  48  X.  W.  682.  holding  lien  claimed  for  storage  may  be  offset  by  damages 
in  excess  of  lien;  Powell  v.  Gagnon,  52  Minn.  236,  53  X.  W.  1148.  holding  void 
foreclosure  of  chattel  mortgage  does  not  affect  rights  of  parties  to  it. 

4  L.  R.  A.  196,  ^YILSOX  v.  HAYES,  40  Minn.  531,  12  Am.  St.  Rep.  754,  42  N.  W. 

467. 
Defects   in    redemption    proceedings. 

Cited  in  Todd  v.  Johnson,  50  Minn.  314,  52  X.  \Y.  864,  holding  defects  in  pro- 
ceedings to  redeem  can  be  taken  advantage  of  only  by  lienors  and  person  from 
whom  redemption  made;  Sardeson  v.  Menage.  41  Minn.  310.  4.3  X.  \Y.  66,  holding 
owner  of  land  on  redeeming  from  sheriff's  sale  on  mortgage  foreclosure  need  not 
file  documents  produced  to  officer;  Lightbody  v.  Lamniers,  98  Minn.  204,  108* 


4  L.R.A.  196]  L.  R.  A.  CASES  AS  AUTHORITIES.  644 

N.  W.  846,  holding  proof  of  heirship  to  person  entitled  to  redeem  is  sufficient  to 
entitle  party  to  redeem  without  the  production  of  any  records  it  not  appearing 
any  probate  proceedings  have  been  completed. 
Alteration    of    instruments. 

Cited  in  Maldaner  v.  Smith,  102  Wis.  36,  78  N.  W.  140,  and  Franklin  v.  Baker, 
48  Ohio  St.  304,  29  Am.  St.  Rep.  547,  27  N.  E.  550,  upholding  presumption  in 
iavor  of  alteration  before  delivery  of  note;  Montgomery  v.  Crossthwait,  90  Ala. 
573,  12  L.  R.  A.  144,  24  Am.  St.  Rep.  832,  8  So.  498,  holding  that  ratification  of 
materially  altered  instrument  does  not  require  new  consideration  to  support  it; 
Moddie  v.  Breiland,  9  S.  D.  511,  70  N.  W.  637,  holding  signature  of  altered  note 
having  been  proved,  note  should  be  admitted;  Cass  County  v.  American  Exch. 
State  Bank,  9  N.  D.  265,  83  N.  W.  12,  and  Klein  v.  German  Nat.  Bank,  69  Ark. 
144,  86  Am.  St.  Rep.  183,  61  S.  W.  572,  sustaining  right  to  introduce  altered  in- 
strument in  evidence  without  first  explaining  alterations;  Richardson  v.  Fellner,  9 
Okla.  520,  60  Pac.  270,  holding  change  of  "on"  to  "and"  in  note  reciting  that  it 
is  given  for  "purchase  price  of  buildings  on  lot"  material;  First  Xat.  Bank  v. 
Liewer,  109  C.  C.  A.  70,  18?  Fed.  18;  Colby  v.  Foxworthy,  80  Neb.  242,  114  X.  W. 
174, — holding  the  burden  of  proof  is  upon  the  party  alleging  the  material  altera- 
tion of  an  instrument  of  showing  when  it  was  altered;  O.  N.  Bull  Remedy  Co.  v. 
Clark,  109  Minn.  399,  33  L.R.A.(N.S.)  522,  124  N.  W.  20,  18  Ann.  Cas.  413, 
holding  that  cross-marking  of  material  provision  in  contract,  after  its  execution, 
by  one  party,  without  other's  consent,  is  material  alteration;  Farmers'  Nat. 
Bank  v.  Mc'Call,  25  Okla.  605,  26  L.R.A.(N.S-)  220,  106  Pac.  866,  holding  that 
material  alteration  of  note  intentionally  made  by  party  entitled  to  any  benefit 
under  it  extinguishes  all  executory  obligations. 

Cited  in  footnotes  to  Rochford  v.  McGee,  61  L.  R.  A.  335,  which  holds  removal 
of  note  written  below  perforated  line  on  application  for  insurance,  material  al- 
teration rendering  it  void;  Gleason  v.  Hamilton,  21  L.  R.  A.  210,  which  holds 
mortgage  not  invalidated  by  alteration  by  attorney  drawing  same  without  mort- 
gagee's knowledge;  Brown  v.  Johnson  Bros.  51  L.  R.  A.  403,  which  holds  maker 
released  by  payee's  addition  of  name  of  other  person  as  comaker;  Simmons  v. 
Atkinson  &  L.  Co.  23  L.  R.  A.  599,  which  holds  insertion  of  words  "or  bearer"  and 
place  of  payment  a  material  alteration;  Foxworthy  v.  Colby,  62  L.  R.  A.  393, 
which  holds  insertion  of  word  "gold"  before  word  "dollars,"  material  alteration  of 
bond  and  mortgage;  Foxworthy  v.  Colby,  62  L.R.A.  39.'»,  which  holds  unauthorized 
insertion  of  word  "gold"  before  word  "dollars." 

Cited  in  notes  (13  L.  R.  A.  314)  on  duty  of  party  producing  instrument  to  ac- 
count for  alteration;  (6  L.  R.  A.  469)  on  effect  of  alteration  of  written  instru- 
ment; (12  L.  R.  A.  140)  on  necessity  of  consideration  to  validity  of  ratification 
of  altered  note;  (86  Am.  St.  Rep.  97,  122,  126,  127,  128,  132,  133)  on  unauthor- 
ized alteration  of  written  instruments;  (39  L.R.A.(N.S.)  103,  104,  112,  113) 
on  presumption  as  to  time  of  alteration  in  instrument  and  its  effect  on  burden 
of  proof. 

Distinguished  in  Taylor  v.  Acorn,  1  Ind.  Terr.  442,  45  S.  W.  130,  holding  addi- 
tion of  another  name  to  the  makers  of  note  not  material  alteration ;  Fletcher  v, 
Minneapolis  F.  &  M.  Mut.  Ins.  Co.  80  Minn.  154,  83  N.  W.  29,  holding  alteratio* 
of  policy  rendering  it  void  not  waived. 
Ratification   of   note   fraudulently   obtained   or  altered. 

Cited  in  First  Nat.  Bank  v.  Holan,  63  Minn.  530,  65  N.  W.  952,  holding  note 
procured  from  maker  by  fraud  not  ratified  per  se  by  mere  promise  to  pay  or 
procuring  of  extension  of  time  to  pay;  Holyfield  v.  Harrington,  84  Kan.  763,  39 
Jj.R.A. (N.S.)  135,  115  Pac.  546,  holding  new  consideration  unnecessary  to  rati- 


645  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  205 

fication  of  material  alteration  of  note;  Shuman  v.  Steinel,  129  Wis.  427,  7 
L.R.A.  (X.S.)  1052,  116  Am.  St.  Rep.  961,  109  X.  W.  74,  9  A.  &  E.  Ann.  Cas.  1064, 
as  to  when  act  is  capable  of  ratification. 

Cited  in  notes  (36  L.R.A. (N.S.)  1015)  on  ratification  of  forged  instrument; 
(39  L.R.A.  (X.S. )  132)  on  necessity  of  consideration  for  ratification  of  un- 
authorized alteration. 

Disapproved  in  effect  in  State  v.  Paxton,  65  Xeb.  131,  90  N.  W.  983,  holding  no 
consideration  required  for  ratification  by  sureties  of  alterations  in  official  bond. 

4  L.  R.  A.  202,  MIXXEAPOLIS  MILL  CO.  v.  GOODXOW,  40  Minn.  497,  42  N.  W. 

356. 
Mutual    promises   as   consideration    for   contract. 

Cited  in  Sanitary  District  v.  McMahon  &  M.  Co.  110  111.  App.  523,  holding  cor- 
poration employing  contractor  to  build  drainage  canal,  liable  for  damages  caused 
by  delay  in  furnishing  right  of  way;  Jordan  v,  Indianapolis  Water  Co.  159  Ind. 
345,  64  N.  E.  680,  holding  agreement  permitting  one  to  draw  water  from  canal 
at  certain  seasons  for  stipulated  rent,  a  contract,  and  not  a  license;  Ames  Brooks 
Coi  v.  .Etna  Ins.  Co.  83  Minn.  350,  86  X.  W.  344,  holding  mutual  promises  suf- 
ficient consideration  for  contract;  Ben  C.  Jones  &  Co.  v.  Gammel-Statesman  Pub. 
Co.  100  Tex.  333,  8  L.R.A.  (X.S.)  1203,  99  S.  W.  701,  holding  under  a  contract 
by  which  one  party  was  to  print  certain  books  from  manuscript  furnished  by  the 
other  party  a  promise  to  furnish  such  manuscript  would  be  implied. 
Construction  of  contracts. 

Cited  in  Indianapolis  Xorthern  Traction  Co.  v.  Brennen,  174  Ind.  25,  30 
L.R.A. (X.S.)  99,  87  X.  E.  215,  holding  electric  railroad  liable  for  damages  for 
delaying  contractor  of  overhead  work  by  its  failure  to  have  its  track  in  agreed 
condition. 

Cited  in  notes  (6  L.  R.  A.  702)  as  to  when  promise  is  not  implied  in  contract; 
(12  L.  R.  A.  376)  on  construction  of  terms  used  in  contract. 

Distinguished  in  Hoffman  v.  Maffioli,  104  Wis.  637,  47  L.  R.  A.  430,  80  N.  W. 
1032,  holding  that  offer  to  furnish  contractor  stone  "in  such  quantities  as  may  be 
desired"  does  not  imply  promise  to  furnish  all  stone  required  by  contractor. 
3Iutnality  of  contracts. 

Cited  in  Thomas-Huycke-Martin  Co.  v.  Gray,  94  Ark.  12,  140  Am.  St.  Rep. 
93,  125  S.  W.  659,  holding  that  contract  to  buy  output  of  sawmill  at  certain 
price  implies  agreement  to  sell;  Dreiske  v.  Davis  Colliery  Co.  156  111.  App.  296, 
holding  that  agreement  to  provide  space  for  storage  of  certain  amount  of  coal 
implies  agreement  to  store  such  coal;  Dille  v.  Parker,  204  Mass.  165,  90  X.  E. 
520,  holding  that  agreement  of  partner  to  buy  another  partner's  interest  at 
certain  price  implies*  agreement  to  accept  such  price;  Stewart  v.  Herron,  77 
Ohio  St.  149,  82  X.  E.  956,  holding  contract  not  wanting  in  mutuality  which 
provided  for  the  sale  of  corporate  stock,  the  vendor  to  remain  in  possession  until 
certain  dividends  accrued  and  no  time  stipulated  therein  for  payment. 

4  L.  R.  A.  205.  AXDERSOX  v.  PILGRAM,  30  S.  C.  499,  14  Am.  St.  Rep.  917,  9 

S.  E.  587. 
Mortgage     securing-    several     notes. 

Cited  in  Interstate  Bldg.  &  L.  Asso.  v.  McCartha,  43  S.  C.  75,  20  S.  E.  807. 
holding  single  mortgage  may  be  given  to  secure  several  bonds  or  notes. 
Action  on   instalment  of  debt   not  bar  to  snit   for  remainder. 

Cited  in  McMakin  v.  Fowler,  34  S.  C.  288,  13  S.  E.  534,  holding  action  on  two 
of  series  of  five  notes  not  bar  to  action  on  remaining  notes  though  same  referred 


4  L.R.A.  205]  L.  R.  A.  CASES  AS  AUTHORITIES.  646 

to  in  complaint  as  part  of  consideration  for  property,  when  former  notes  only 
submitted  to  jury. 

Cited  in  note   (37  L.  R.  A.  747)   on  proceedings  to  enforce  mortgage  for  part 
of  mortgage  debt. 
Maintaining  separate  actions   upon    note  anil   mortgrag'e. 

Cited  in  notes  (73  Am.  St.  Rep.  566)  on  right  of  mortgagee,  etc.,  to  main- 
tain action  at  law  on  the  debt  concurrently  with  foreclosure;  (18  Eng.  Rul.  Cas. 
442)  on  mortgagee's  right  to  proceed  on  all  remedies  at  one  time. 

Distinguished  in  Curtis  v.  Renneker,  34  S.  C.  494,  13  S.  E.  664,  holding  objec- 
tion of  another  action  pending  waived  if  not  pleaded. 

4  L.  R.  A.  209,  SOUTH  CAROLINA  S.  B.  CO.  v.  SOUTH  CAROLINA  R.  CO.  30 

S.  C.  539,  14  Am.  St.  Rep.  923,  9  S.  E.  650. 
Right   of   private   action   for   public   nuisance. 

Cited  in  Baltzeger  v.  Carolina  Midland  R.  Co.  54  S.  C.  249,  71  Am.  St.  Rep.  789, 
32  S.  E.  358,  holding  complaint  for  damages  for  public  nuisance  must  allege  spe- 
cial or  peculiar  damage  to  plaintiff;  The  John  C.  Sweeney,  55  Fed.  539,  and  South 
Carolina  S.  B.  Co.  v.  Wilmington,  C.  &  A.  R.  Co.  46  S.  C.  334,  33  L.  R.  A.  541, 
57  Am.  St.  Rep.  688,  24  S.  E.  337,  holding  damages  from  obstruction  of  navi- 
gable river  must  be  peculiar  to  plaintiff  and  different  in  kind  from  that  suf- 
fered by  others;  Threatt  v.  Brewer  Min.  Co.  49  S.  C.  131,  26  S.  E.  970,  holding 
party  seeking  damages  for  obstruction  of  neighborhood  road  must  show  special 
injury  not  common  to  public;  Cherry  v.  Rock  Hill,  48  S.  C.  561.  26  S.  E.  798, 
holding  change  in  course  of  street  by  city  authorities  does  not  give  right  of  action 
to  resident  compelled  to  take  more  circuitous  route ;  Carmichael  v.  Texarkana,  94 
Fed.  573,  holding  individual  may  maintain  action  to  abate  nuisance  caused  by 
discharge  of  city's  sewage  upon  lands  near  his  residence;  Connecticut  River  Lum- 
ber Co.  v.  Olcott  Falls  Co.  65  N.  H.  377,  13  L.  R.  A.  830,  21  Atl.  1090,  as  tending 
to  support  contention  that  action  cannot  be  maintained  by  private  person  to  abat<> 
public  nuisance;  Manson  v.  South  Bound  R.  Co.  64  S.  C.  123,  41  S.  E.  832,  holding 
fiction  not  maintainable  by  owners  of  property  not  abutting  on  public  park  to 
enjoin  its  use  as  railway  station;  Thomas  v.  Wade,  48  Fla.  313,  37  So.  743,  holding 
a  private  user  of  navigable  stream  cannot  bring  suit  to  abate  obstruction  by 
spanning  bridge  unless  he  alleges  and  proves  that  he  suffers  special  injury  dif- 
ferent in  degree  and  kind  from  that  sustained  by  the  public;  State  ex  rel.  Guen- 
ther  v.  Charleston  Light  &  Water  Co.  68  S.  C.  553,  47  S.  E.  979,  holding  that 
mandamus  will  not  be  granted  to  compel  removal  of  obstruction  in  a  navigablo 
stream  unless  petitioner  shows  special  injury  therefrom  other  that  common  to 
the  general  public;  Drews  v.  Burton,  76  S.  C.  366,  57  S.  E.  176,  holding  that 
where  special  injury  is  sustained  from  obstruction  of  a  navigable  stream  the 
person  injured  may  recover  damages  therefor;  McMeekin  v.  Central  Carolina 
Power  Co.  80  S.  C.  516,  128  Am.  St.  Rep.  885,  61  S.  E.  1020,  holding  a  showing 
•of  special  damage  not  common  to  general  public  necessary  to  civil  remedy  for 
public  nuisance;  Gray  v.  Charleston  &  W.  C.  R.  Co.  81  S.  C.  372.  62  S.  E.  442. 
liolding  allegation  and  proof  of  obstruction  in  public  highway  and  of  direct  and 
special  damages  resulting  necessary  to  civil  action  for  abatement  or  damages  . 
Barksdale  v.  Charleston  &  W.  C.  R.  Co.  83  S.  C.  292,  64  S.  E.  1013,  holding  that 
an  injury  to  land  on  a  navigable  stream  caused  by  a  public  nuisance  affecting 
the  rights  of  navigation  entitles  the  owner  to  sue. 

Cited  in  footnotes  to  Farmers'  Co-Op.  Mfg.  Co.  v.  Albemarle  &  R.  R.  Co.  29  L. 
R.  A.  700,  which  authorizes  private  action  for  public  nuisance  by  one  having  com- 
mon misfortune  with  class  of  persons,  but  not  with  entire  public;  Griffith  v.  Hoi- 
man,  54  L.  R.  A.  178,  which  denies  private  individual's  right  to  abate  public  nui- 


647  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  213 

sance  consisting  of  fence  across  navigable  stream;  South  Carolina  S.  B.  Co.  v. 
Wilmington,  C.  &  A.  R.  Co.  33  L.  R.  A.  541,  which  denies  steamboat  owner's  right 
of  action  for  obstructing  navigation  of  river;  Kuehn  v.  Milwaukee,  18  L.  R.  A. 
553,  which  denies  private  suit  for  injury  to  public  fishery;  Pittsburgh,  Ft.  W. 
&  C.  R.  Co.  v.  Cheevers,  24  L.  R.  A.  15(5,  which  denies  right  of  company  to  enjoin 
congregating  of  hotel  runners,  etc.,  in  front  of  station;  Megargee  v.  Philadelphia, 
19  L.  R.  A.  221,  which  denies  right  of  action  for  defects  in  street  leading  to  ware- 
house injuring  business  and  teams;  Reyburn  v.  Sawyer,  65  L.R.A.  930,  which 
sustains  right  of  owner  of  island  to  injunction  against  maintenance  of  fishing 
nets  in  adjoining  waters  so  as  to  obstruct  navigation. 

Cited  in  notes  (4  L.  R.  A.  573)  on  remedy  by  injunction  to  protect  right  of 
riparian  owner;  (40  L.  R.  A.  465)  on  injunction  by  municipalities  against  nui- 
sances in  waters  and  water  courses;  (9  L.  R.  A.  717)  on  remedy  by  action  for 
damages  for  nuisance;  (10  L.  R.  A.  255)  on  casting  water  on  land  as  nuisance; 
(59  L.R.A.  83,  90)  on  right  to  obstruct  or  destroy  rights  of  navigation;  (57  Am. 
St.  Rep.  693,  696,  697;  38  L.R.A.  (N.S.)  766)  on  private  right  of  action  for  ob- 
struction of  navigable  stream;  (1  Eng.  Rul.  Cas.  598)  on  nonliability  to  indi- 
vidual for  injury  suffered  in  common  with  public  generally. 

Distinguished  in  Mauldin  v.  Greenville,  33  S.  C.  18,  8  L.  R.  A.  294,  11  S.  E.  434, 
holding  resident  taxpayer  may  maintain  action  to  enjoin  city  council  from  pur- 
chasing and  operating  electric  light  plant,  and  from  issuing  bonds  in  payment 
thereof  contrary  to  law;  Jones  v.  Seaboard  Air  Line  R.  Co.  67  S.  C.  194,  45 
S.  E.  188,  holding  railway  company  liable  to  owner  of  land  on  navigable  stream 
for  damages  for  obstructing  flow  of  freshet  waters. 

4  L.  R.  A.  213,  WOODMAN  v.  METROPOLITAN  R.  CO.  149  Mass.  335,  14  Am. 

St.  Rep.  427,  21  N.  E.  482. 
Neg'lift'eiice   of   independent   contractor. 

Cited  in  Cabot  v.  Kingman,  166  Mass.  406,  33  L.  R.  A.  46,  44  N.  E.  344,  hold- 
ing if  duty  arises  from  thing  to  be  done,  responsibility  attaching  of  seeing  duty 
performed  cannot  be  escaped  by  delegating  performance  to  contractor ;  Curtis  v. 
Kiley,  153  Mass.  126,  26  N.  E.  421,  holding  if  work  likely  to  render  premises 
dangerous,  owner  not  relieved  from  obligation  of  set- ing  clue  care  is  used  by  em- 
ployment of  independent  contractor;  Pye  v.  Faxon,  156  Mass.  474,  31  N.  E.  640, 
holding  owner  liable  for  negligence  if  performance  of  lawful  contract  neces- 
sarily will  bring  wrongful  consequences  to  pass,  unless  guarded  against;  Wether- 
bee  v.  Partridge,  175  Mass.  186,  78  Am.  St.  Rep.  486,  55  N.  E.  894,  holding  blast- 
ing rock  so  evidently  attended  with  wrongful  consequences  unless  guarded  against 
as  to  impose  duty  on  principal  to  see  due  cure  used;  Robbins  v.  Atkins,  168 
Ma~^.  47.  4(3  X.  E.  425,  holding  owner  of  tenement  liable  for  injury  from  giving 
way  of  cellar  stairs,  due  to  contractor,  employed  to  deepen  cellar,  removing  sup- 
port; Wertheimer  v.  Saunders,  95  Wis.  580,  37  L.  R.  A.  148,  70  N.  W.  824,  hold- 
ing landlord  undertaking  to  put  on  new  roof,  at  request  of  tenant,  liable  for 
injury  from  elements  due  to  want  of 'care  and  skill  of  contractor;  Reynolds  v. 
Van  Beuren,  10  Misc.  7"07,  31  N.  Y.  Supp.  827,  holding  lessee  of  roof  privilege 
for  advertising  liable  for  injury  from  fall  of  sign  erected  by  independent  con- 
tractor; Cameron  v.  Oberlin,  19  Ind.  App.  147,  48  X.  E.  386,  holding  landowner 
employing  contractor  to  clear  up  land  liable  for  negligence  of  latter  in  permitting 
fire  to  escape  to  adjacent  lands;  Johnston  v.  Phoenix  Bridge  Co.  44  App.  Div. 
584,  60  X.  Y.  Supp.  913,  holding  contractor  who  sublets  contract  for  building 
elevated  railroad  liable  for  injury  to  pedestrian  from  fall  into  excavation  in 
sidewalk,  left  unguarded  by  subcontractor:  Thomas  v.  Harrington,  72  N.  H.  48, 
65  L.  R.  A.  750,  54  Atl.  285,  holding  owner  liable  for  negligence  of  contractor 


4  L.R.A.  213]  L.  R.  A.  CASES  AS  AUTHORITIES.  648 

laying  water  pipe,  in  not  guarding  trench;  Colgrove  v.  Smith  (Cal.)  27  L.  R.  A. 
591,  36  Pac.  411,  holding  water  company  liable  for  negligence  of  independent 
contractor  in  failing  to  cover  pipes;  Benjamin  v.  Metropolitan  Street  R.  Co. 
133  Mo.  285,  34  S.  W.  590,  holding  that  failure  of  independent  contractor  de- 
livering coal,  to  properly  replace  cover  of  manhole,  will  not  relieve  owner  from 
liability  for  resulting  injury;  North  Chicago  Street  R.  Co.  v.  Dudgeon,  184  111. 
482,  56  N.  E.  796,  Affirming  83  111.  App.  532,  holding  street  railroad  repairing 
track  under  authority  of  charter  and  special  permit,  responsible  for  negligence 
of  contractor  leaving  paving  stone  piled  near  track;  Downey  v.  Low,  22  App. 
Div.  462,  48  N.  Y.  Supp.  207,  applying  same  rule  where  contractor  employed  to 
remove  ashes  left  coal  chute  open  and  unguarded;  Lorenzo  v.  Wirth,  170  Mass. 
602,  40  L.  R.  A.  349,  49  N.  E.  1010  (dissenting  opinion),  majority  holding  lessee 
of  premises  not  liable,  under  circumstances  of  case,  for  injury  to  pedestrian  from 
falling  into  unguarded  coal  hole;  Luce  v.  Holloway,  156  Cal.  165,  103  Pac.  886. 
holding  contractor  liable  for  injury  caused  by  negligence  of  independent  sub-con- 
tractor causing  derailment  of  engine,  where  it  appeared  from  the  nature  of  the 
work  that  such  would  be  the  result  unless  vigilance  was  used;  Keyes  v.  Second 
Baptist  Church,  99  Me.  310,  59  Atl.  446,  holding  an  independent  contract  does 
not  relieve  the  employer  from  liability  for  injury  caused  by  contractor  in  failing 
to  put  up  barriers  and  warnings  in  making  building  repairs  necessarily  dan- 
gerous to  passing  public;  Symons  v.  Allegany  County,  105  Md.  262,  65  Atl. 
1067,  holding  road  directors  not  liable  for  negligent  use  of  a  stone  quarry  by 
independent  contractor  loaned  to  him  by  directors  where  such  quarry  and  nature 
of  contract  is  not  necessarily  dangerous;  Davis  v.  John  L.  Whiting  Son  &  Co. 
201  Mass.  93,  —  L.R.A.(N.S.)  — ,  87  N.  E.  199,  holding  owner  of  building  not 
liable  for  injury  caused  by  employees  of  independent  contractor  through  their  un- 
skillful execution  of  the  work  under  the  contract  of  the  condition  of  the  build- 
ing not  causing  any  particular  danger;  Boucher  v.  New  York.  X.  H.  &  H.  R.  Co. 
196  Mass.  360,  13  L.R.A.(N.S.)  1180,  82  N.  E.  15,  holding  the  operation  of  gates 
by  independent  contractor  at  a  grade  crossing  in  a  crowded  street  necessarily  dan- 
gerous, does  not  relieve  the  company  from  liability  for  negligence  of  gate  tender: 
Carey  v.  Baxter,  201  Mass.  526,  87  N.  E.  901,  on  liability  for  negligence  of  in- 
dependent contractor  in  leaving  unguarded  space  from  which  steps  were  removed ; 
Ray  v.  Jones  &  A.  Co.  92  Minn.  106,  99  N.  W.  782,  holding  that  the  owner  of  a 
building  allowing  the  opening  of  a  coal  hole  by  servant  of  deliverer  of  coal 
owed  the  duty  to  see  that  ordinary  care  is  used  in  keeping  passersby  from  in- 
jury therefrom;  Thomas  v.  Wisconsin  C.  R.  Co.  108  Minn.  489,  23  L.R.A.  (X.S.) 
959,  122  N.  W.  456,  holding  that  master  owes  to  his  servants  that  he  will  use 
reasonable  care  in  protecting  them  from  negligence  of  independent  contractor  put 
in  action  where  such  servants  are  at  work;  Eberson  v.  Continental  Invest.  Co. 
130  Mo.  App.  307,  109  S.  W.  62,  holding  lessor  liable  to  lessee  for  negligence  of 
lessor's  independent  contractor  in  making  repairs  on  leased  premises  where  such 
work  is  necessarily  dangerous  to  lessees'  property  or  life;  O'Hara  v.  Laclede  Gas- 
light Co.  131  Mo.  App.  437,  452,  110  S.  W.  642,  holding  that  where  it  is  duty  of 
employer  to  personally  guard  street  temporarily  obstructed,  it  is  immaterial 
whether  a  sub-contractor  causing  injury  by  negligence  was  independent  or  not,  to- 
fix  liability  of  company;  Thomas  v.  Hammer  Lumber  Co.  153  X.  C.  357.  32  L.R.A. 
(N.S.)  587,  69  S.  E.  275,  holding  owner  of  logging  railroad  liable  for  fire  on 
adjoining  premises  from  defective  engine  operated  by  independent  contractor; 
Thomas  v.  Harrington,  72  N.  H.  48,  65  L.R.A.  750,  54  Atl.  285,  holding  owners 
of  house  liable  for  injury  caused  by  negligence  of  independent  contractor  in  leav- 
ing ditch  open  and  unguarded  which  was  made  for  purpose  of  piping  house  for 
water;  Stevens  v.  United  Gas  &  Electric  Co.  73  N.  H.  169,  70  L.R.A.  124,  60  AtL 


649  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  213 

848,  holding  the  duty  imposed  on  one  maintaining  electric  wires  of  high  voltage 
to  protect  invitees  from  injury  cannot  be  delegated;  McHarge  v.  Newcomer,  117 
Tenn.  614,  9  L.R.A. (N.S.)  302,  100  S.  W.  700,  holding  owner  of  building  liable 
for  injury  to  passerby  on  crowded  street,  from  fall  of  awning  roller  being  put 
up  by  independent  contractor,  owner  not  taking  precautions  to  protect  passersby; 
Cameron  Mill  &  Elevator  Co.  v.  Anderson,  34  Tex.  Civ.  App.  108,  78  S.  W.  8, 
holding  that  where  the  injury  is  the  direct  result  of  the  work  authorized  to  be 
done  by  the  contractor  the  employer  is  liable ;  Vickers  v.  Kanawha  &  W.  V.  R.  Co. 
04  W.  Va.  478,  20  L.R.A.(X.S.)  797,  131  Am.  St.  Rep.  929,  63  S.  E.  367,  holding 
railroad  company  liable  for  injury  to  servant  caused  by  negligence  of  independ- 
ent contractor,  the  duty  of  company  to  provide  safe  place  to  work  being  un- 
assignable; Wagner  v.  Boston  Elev.  R.  Co.  188  Mass.  443,  74  N.  E.  919,  holding 
a  contract  by  which  sub-contractor  agreed  to  indemnify  street  railway  company 
for  injuries  cavised  his  employees  by  servants  of  company  does  not  relieve  com- 
pany from  liability  for  injury  to  such  employees  caused  by  negligent  operation  of 
defendants  street  cars. 

Cited  in  notes  (14  L.R.A.  829,  834)  on  exceptions  to  rule  that  employer  is 
not  liable  for  acts  of  independent  contractor;  (65  L.R.A.  845,  854)  on  liability  for 
injuries  caused  by  performance  of  work  by  independent  contractor  which  is  dan- 
gerous unless  certain  precautions  are  observed;  (21  Am.  St.  Rep.  179)  on  liabil- 
ity of  railroad  company  for  injuries  inflicted  by  construction  company;"  (76 
Am.  St.  Rep.  414,  415:  19  Eng.  Rul.  Cas.  187)  on  liability  for  injury  due  to 
negligence  of  independent  contractor. 

Distinguished  in  Boomer  v.  Wilbur,  176  Mass.  484,  53  L.  R.  A.  173,  57  N.  E. 
1004,  holding  repair  of  chimney  not  necessarily  nuisance  requiring  owner  to 
guard  against  injury  to  passer-by  from  fall  of  brick;  Independence  v.  Slack, 
134  Mo.  76,  34  S.  W.  1094.  holding  owner  not  liable  for  injury  from  stone  per- 
mitted to  remain  in  street  by  contractor  employed  to  construct  sidewalk;  Leavitt 
v.  Bangor  &  A.  R.  Co.  89  Me.  520,  36  L.  R.  A.  384,  36  Atl.  998,  holding  railroad 
contracting  for  sawing  of  wood  along  road,  not  liable  for  fire  set  by  cooking  car 
of  contractor,  placed  by  railroad  on  spur  track;  Quinn  v.  Crimmings,  171  Mass. 
256,  42  L.  R.  A.  102,  68  Am.  St.  Rep.  420,  50  X.  E.  624,  holding  where  duty  to 
maintain  partition  fence  rests  on  one  of  two  adjoining  proprietors,  other  is  not 
liable  for  injury  to  third  person  from  fall  of  fence;  Hoff  v.  Shockley,  122  Iowa, 
728,  64  L.  R.  A.  542,  98  X.  W.  573,  holding  owner  not  liable  for  negligence  of 
independent  contractor  building  house  in  failing  to  light  street  obstruction. 
Sufficiency  of  evidence  to  sustain  finding:. 

Cited  in  Miller  v.  Inman,  40  Or.   166,  66  Pac.  713,  holding  evidence  that  de- 
ceased's  clothes   were   found'  wrapped   around   a   coupling,    sufficient   to   sustain 
finding  that  projecting  bolt  caused  his  death. 
ZVeg-ligence    of    street    rail-way    company. 

Cited  in  note  (52  L.  R.  A.  452,  462)  on  liability  of  street  railway  company 
for  defect  in  track  or  street. 

Distinguished  in  Millie  v.  Manhattan  R.  Co.  5  Misc.  303,  25  N.  Y.  Supp.  753, 
holding  elevated  railroad  company  not  liable  for  injury  to  passenger  tripping 
and  falling  on  its  stairway. 
Duty   to   prevent   injury   from   lawful   acts. 

Cited  in  Deming  v.  Terminal  R.  Co.  49  App.  Div.  500,  63  N.  Y.  Supp.  615, 
holding  permission  to  obstruct  highway  carries  with  it  corresponding  duty  not 
to  allow  obstruction  to  become  unnecessarily  dangerous,  or  to  remain  unreasonable 
length  of  time;  Blessington  v.  Boston,  153  Mass.  413,  26  N.  E.  1113,  holding  city 
intrusting  to  street  railway  employees  duty  of  guarding  sewer  trench  in  highway, 
responsible  for  their  neglect,  whether  momentary  or  otherwise;  Ainsworth  v. 


4  L.R.A.  213]  L.  R.  A.  CASES  AS  AUTHORITIES.  650 

Lakin,  180  Mass.  400,  57  L.  R.  A.  132,  91  Am.  St.  Rep.  314,  62  N.  E.  746,  holding 
owner  of  premises  destroyed  by  lire  bound  to  see  proper  care  taken  to  prevent 
damage  from  fall  of  wall;  Kaiser  v.  Detroit  &  X.  W.  R.  Co.  131  Mich.  507,  91 
N.  W.  752,  holding  authority  to  construct  railroad  in  street  no  defense  to  action 
for  injuries  caused  by  creation  of  nuisance  therein ;  Kenyon  v.  Chicago  City  R. 
Co.  235  111.  410,  85  N.  E.  660,  holding  that  one  who  puts  obstruction  in  street 
without  properly  guarding  it,  cannot  avoid  liability  for  injury  therefrom  by- 
showing  duty  of  a  third  person  to  guard,  remove  or  maintain  such  obstruction 
safe  condition;  Flynn  v.  Butler,  189  Mass.  388,  75  X.  E.  730,  holding  that  a  per- 
son maintaining  a  powder  magazine  is  bound  under  all  circumstances  to  so  handle 
the  powder  as  not  to  jeopardize  persons  or  property  in  its  vicinity. 
Crossing:  street  at  point  other  than  crossing. 

Cited  in  Slee  v.  Lawrence.  162  Mass.  408,  38  N.  E.  708,  holding  question 
whether  pedestrian  was  negligent  in  leaving  sidewalk  because  of  crowd,  and 
crossing  street  at  point  other  than  crossing,  is  for  jury. 

Cited  in  footnotes  to  Suburban  Electric  Co.  v.  Xugent,  32  L.R.A.  700.  which 
holds  person  using  street  has  right  to  presume  that  it  is  free  from  dangerous 
obstacles;  Wheat  v.  St.  Louis,  64  L.R.A.  292,  which  holds  that  one  attempting 
to  turn  horse  and  milk  wagon  around  in  vicinity  of  manhole  which  he  knows 
projects  above  the  surface  of  the  street,  guilty  of  contributory  negligence. 
Recovery  for  death  on  circumstantial  evidence. 

Cited  in  note  (2  L.R.A.  (N.S.)  907)  on  recovery  for  death  on  circumstantial 
evidence. 

4  L.  R.  A.  215,  LINCOLN  v.  PERRY,   149  Mass.  368,  21  N.  E.  671. 
Descent  of  mixed  funds. 

Cited  in  Lawrence  v.  Crane,  158  Mass.  393,  33  N.  E.  605,  and  Heard  v.  Read, 
169  Mass.  225,  47  N.  E.  778,  holding  that  trust  fund  of  personal  and  real  estate 
goes  to  persons  who  would  inherit  realty  by  law;  Eastham  v.  Barrett,  152  Mass. 
58,  25  X'.  E.  33,  holding  inheritable  estate  in  land  given  tt  statutory  heir,  de- 
scends like  real  property;  Gray  v.  Whittemore.  192  Mass.  380,  10  L.R.A.  (N.S.) 
1150,  116  Am.  St.  Rep.  246,  78  N.  E.  422,  holding  trust  fund  of  personal  and 
real  estate  devised  to  heirs  of  life  tenant  to  the  income,  goes  in  whole  to  those 
technically  described  as  heirs  unless  indication  of  intention  that  two  kinds  of 
property  should  go  in  different  directions. 
Law  by  which  "heirs"  are  determined. 

Cited  in  Codman  v.  Krell,  152  Mass.  218,  25  N.  E.  90,  requiring  term  "heirs 
at  law"  in  deed  of  trust  to  be  determined  by  law  of  donor's  domicil  where  it 
was  evidently  in  mind;  Keith  v.  Eaton,  58  Kan.  736,  51  Pac.  271,  holding  will 
to  be  interpreted  in  light  of  law  of  domicil,  unless  contrary  shown  from  tes- 
tator's circumstances  or  from  whole  instrument;  Adams  v.  Adams,  154  Mass. 
202,  13  L.  R.  A.  280,  28  N.  E.  260,  raising,  without  deciding,  question  whether 
''children"  in  will  means  legitimate  children  if  illegitimate  children  are  recog- 
nized as  children  for  some  purposes  at  domicil;  Re  Riesenberg,  116  Mo.  App. 
315,  90  S.  W.  1170,  holding  law  of  domicile  of  testator  at  execution  of  will  con- 
trol as  to  who  are  heirs  of  devisee  to  take  in  case  of  devisee's  death  prior  to  tes- 
tator; Brandeis  v.  Atkins,  204  Mass.  475,  26  L.R.A. (N.S.)  231,  90  N.  E.  861, 
on  the  determination  of  the  heirs  at  law  by  law  of  domicile  of  testator. 

Cited  in  notes  (2  L.R.A.  (N.S.)  448)  on  conflict  of  laws  as  to  wills:  (2  Brit. 
Rul.  Cas.  557)  on  law  governing  ascertainment  of  members  of  class  taking  under 
will. 


651  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  218 

Statutory    heir. 

Cited  in  Motherway  v.  \VaIl,  KiS  Mass.  337,  47  N.  E.  135,  holding  realty  of 
less  than  $5,000  devised  to  others  without  husband's  written  consent  descends 
to  husband  as  statutory  heir  of  wife  dying  without  issue;  Howe  v.  Berry,  168 
Mass  419,  47  N.  E.  104,  holding  Mass.  Pub.  Stat.  chap.  124,  §  1,  giving  husband 
fee  in  wife's  realty  deceased  without  issue  living,  applies  where  they  had  no 
children;  Gluey  v.  Levering,  167  Mass.  448,  45  N.  E.  766,  holding  devise  to 
''heirs  at  law,"  of  specih'ed  person,  includes  widow  as  statutory  heir  to  extent  of 
$5,000  only;  Re  Smith,  150  Mass.  411,  31  N.  E.  387,  holding  surviving  husband 
entitled  to  $5,000  only  in  which  he  is  given  an  estate  in  fee  by  statute  under  pro- 
vision in  trust  deed  to  convey  to  "heirs  at  law"  of  his  deceased  wife  such  shares 
as  they  would  have  taken  if  she  had  died  intestate;  International  Trust  Co.  v. 
Williams,  183  Mass.  173,  66  X.  E.  798,  holding  heirs  of  life  tenant  under  statute 
to  have  been  her  husband  and  child;  Proctor  v.  Clark,  154  Mass.  48,  12  L.  R.  A. 
724,  27  N.  E.  673,  holding  widow  "heir  at  law"  within  meaning  of  third  person's 
will,  to  extent  of  $5,000  in  which  she  is  given  estate  in  fee,  by  statute,  but  not  as 
to  property  in  which  she  is  given  only  life  estate. 
"Heirs"  and  "issue." 

Cited  in  Blodgett  v.  Stowell,  389  Mass.  143,  75  N.  E.  138,  holding  under  a 
statute  that  an  adopted  child  may  not  take  under  the  will  of  adopted  parent's 
father  as  "heir  or  issue"  where  such  child  was  adopted  and  adopting  parent 
died  after  enactment  of  statute  the  heirs  of  adopting  parent  are  ascertainable 
as  of  the  date  of  his  death;  Holmes  v.  Holmes,  198  Mass.  557,  80  N.  E.  614,  hold- 
ing that  a  trust  fund  devised  after  a  limitation  to  the  legal  heirs  of  the  life 
Ijeneficiary  surviving,  goes  to  those  who  would  inherit  realty  of  survivor  if  he 
had  died  intestate  determined  as  of  date  of  his  death;  Boston  Safe  Deposit  & 
T.  Co.  v.  Blanchard,  ]96  Mass.  41,  81  N.  E.  654,  holding  in  a  devise  to  heirs  in 
default  of  certain  descendants  the  property  goes  to  those  who  would  have  been 
testators  own  right  heirs  had  lie  died  intestate  if  his  wife  had  predeceased  and  he 
liad  died  at  the  instant  his  wife  in  fact  died;  Walton  v.  Draper,  206  Mass.  23,  91 
X.  E.  884,  holding  that  evidence  of  conversations  with  testatrix,  either  before 
or  after  the  will  was  executed,  is  inadmissible  when  language  of  will  is  un- 
ambiguous. 
Extrinsic  evidence  of  testator's  intent. 

Cited  in  Best  v.  Berry,  189  Mass.  512,  109  Am.  St.  Rep.  651,  75  N.  E.  743, 
holding  inadmissible,  memorandum  by  testator  disposing  of  property;  Polsey 
v.  Newton,  199  Mass.  455,  85  N.  E.  574,  15  A.  &  E.  Ann.  Gas.  139,  denying 
petition  to  change  will  from  "their  three  children"  to  "my  three  grand  children" 
on  a  showing  that  testator  had  intended  scrivener  to  so  make  the  will;  Sibley 
v.  Maxwell,  203  Mass.  105,  89  X.  E.  232,  holding  a  letter  not  referred  to  in  will 
nor  executed  as  a  will  nor  forming  part  thereof  is  inadmissible  to  change  or 
vary  disposition  of  property  under  the  will  admitted  to  probate. 

4  L.  R.  A.  218,  TYLER  v.  SAXBORN,  128  111.  136,  15  Am:  St.  £ep.  97,  21  N.  E. 

193. 
Trustee's    relation    to    trust    property. 

Cited  in  Lagger  v.  Mutual  Union  Loan  &  Bldg.  Asso.  146  111.  296,  33  N.  E. 
946,  holding  administratrix  cannot  indirectly  sell  property  of  estate  to  herself; 
,T.  W.  Butler  Paper  Co.  v.  Robbins.  151  111.  625,  38  X.  E.  153,  holding  that  presi- 
dent of  corporation  cannot  under  power  to  borrow  money  for  it  properly  act  as 
agent  for  his  wife  in  lending  it;  Ualbraith  v.  Tracy,  153  111.  63,  28  L.  R.  A.  139, 
46  Am.  St.  Rep.  867,  38  N.  E.  937.  holding  administrator  cannot  become  purchaser 
on  foreclosure  of  trust  property;  Hannah  v.  People,  198  111.  89,  64  N.  E.  776, 


4  L.R.A.  218]  L.  E.  A.  CASES  AS  AUTHORITIES.  652 

holding  public  warehousemen  must  not  be  disqualified  by  private  interest;  Jef- 
frey v.  J.  W.  Butler  Paper  Co.  37  111.  App.  101,  holding  officers  of  corporation 
may  not  deal  with  themselves  or  with  their  near  relatives  or  agents  of  the  cor- 
poration; Anderson  v.  First  Nat.  Bank,  5  N.  D.  83,  64  N.  W.  114,  holding  agent 
authorized  to  sell  at  certain  price  cannot  sell  to  himself;  Ferguson  v.  Bateman,  1 
App.  D.  C.  292,  holding  trustee  by  answer  cannot  shift  burden  from  himself 
of  showing  individual  sale  to  cestui  que  trust  was  without  deception;  Taylor  v. 
Klein,  47  App.  Div.  347,  62  N.  Y.  Supp.  4,  holding  title  of  committee  by  purchase 
through  wife  at  fair  value  at  judicial  sale  of  lunatic's  property,  not  marketable; 
Strauss  v.  Benheim,  28  Misc.  660,  661,  59  N.  Y.  Supp.  1054,  upholding  title  in 
sale  of  infant's  property  by  special  guardian  to  wife  confirmed  by  court,  in 
attack  by  third  party  after  twenty-six  years;  Frazier  v.  Jeakins,  64  Kan.  631, 
57  L.  R.  A.  577,  68  Pac.  24,  holding  sale  of  minor's  property  by  guardian  to  her 
husband  voidable  by  minor;  Frazier  v.  Jeakins,  64  Kan.  618,  57  L.  R.  A.  577, 
footnote  p.  575,  68  Pac.  24,  holding  guardian's  sale  to  her  husband  void;  Borst 
v.  Lynch,  133  Iowa,  569,  110  N.  W.  1031,  holding  that  in  a  speculative  sale  of 
trust  property  the  trustee  shall  account  to  owner  for  full  amount  received  in- 
cluding profits  though  trustee  agreed  to  give  one-half  thereof  to  another,  and 
the  face  value  of  security  for  purchase  price  did  not  cover  profit;  Curry  v.  King, 
6  Cal.  App.  576,  92  Pac.  662,  holding  that  sale  will  be  set  aside  where  it  was 
procured  by  agent  for  sale  of  the  property  so  that  he  might  obtain  it  from 
purchaser  for  himself  and  relatives;  Hayes  v.  Hall,  188  Mass.  513,  74  X.  E.  935; 
on  sale  by  trustee  to  his  wife;  Atkins  v.  Atkins,  195  Mass.  129,  11  L.R.A.  (X.S.) 
276,  122  Am.  St.  Rep.  221,  80  N.  E.  806,  holding  that  the  fact  that  husband  was 
acting  in  a  representative  capacity  in  sale  of  realty  to  wife  does  not  in  a  suit 
thereon  bring  the  case  within  the  equitable  exception  to  the  common-law  rule 
that  such  a  contract  is  a  nullity;  Fiske  v.  Waite,  53  Or.  149,  99  Pac.  283, 
holding  that  agent  of  broker  for  sale  of  realty  cannot  himself  purchase  the 
realty  and  turn  it  over  to  another  for  advanced  price  without  full  disclosure  to 
owner;  Wells  v.  Cochran,  84  Neb.  281,  120  N.  W.  1123,  holding  burden  on 
agent  to  show  knowledge  of  facts  and  consent  of  principal  in  his  retention  and 
right  to  profits  from  subject  of  agency;  Blair  v.  Johnson,  215  111.  559,  74  X.  E. 
747,  holding  that  wife  of  life  tenant  acquires  no  title  by  purchase  of  property 
at  tax  sale;  Fox  v.  Simons,  251  111.  321,  96  X.  E.  233,  holding  that  agent  em- 
ployed to  secure  oil  leases  cannot  secure  any  for  himself,  without  his  employ- 
er's consent. 

Cited  in  footnotes  to  Jansen  v.  Williams,  20  L.  R.  A.  207,  which  denies 
agent's  right  to  become  purchaser  without  principal's  acquiescence;  Boswell  v. 
Cunningham,  21  L.  R.  A.  54,  which  denies  agent's  right  to  acquire  adverse  interest 
in  subject-matter  of  agency;  Kimball  v.  Ranney,  46  L.  R.  A.  403,  which  denies 
right  of  agent  employed  to  sell  mortgaged  property  for  owner  to  purchase  at 
sale;  Strong  v.  Brennan,  47  L.  R.  A.  792,  which  denies  right  of  attorney  to  re- 
cover for  services  to  association  employing  him  when  also  engaged  and  paid  by 
adverse  party;  Holmes  v.  Cathcart,  60  L.  R.  A.  734,  which  requires  agent, 
authorized  to  make  sale  or  exchange  at  specified  terms,  to  disclose  to  principal 
facts  as  to  more  advantageous  jane  learned  of;  Trice  v.  Comstock,  61  L.  R.  A. 
176,  which  denies  right  of  one  employed  to  conduct  probable  customers  to  prin- 
cipals engaged  in  reselling  at  advances  options  procured  from  owners,  to  pur- 
chase for  own  benefit  adversely  to  principals  even  after  agency  terminates; 
Van  Dusen  v.  Bigelow,  67  L.R.A.  288,  which  holds  that  agent  for  collecting 
rent,  paying  tax,  seeing  to  repairs  and  giving  advice  as  to  value  of  farm  lands, 
cannot  purchase  for  himself  without  full  disclosure  of  all  facts  bearing  on  the 
value  of  the  land;  State  v.  Edwards,  69  L.R.A.  667,  which  denies  right  of  com- 


653  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  229 

mission  merchants  to  whom  grain  is  consigned  for  sale  on  commissions  to  pur- 
chase themselves  after  business  hours  at  highest  price  of  the  day  on  the  board  of 
trade. 

Cited  in  notes  (5  L.  R.  A.  166,  9  L.  R.  A.  792)  on  general  rule  as  to  trustee 
purchasing  at  his  own  sale;  (6  L.  R.  A.  370)  on  rule  as  to  persons  acting  in 
fiduciary  capacity  purchasing  trust  property;  (8  L.  R.  A.  486)  on  what  is 
necessary  to  bind  surety  on  bond;  (10  L.  R.  A.  101)  on  rule  as  to  person  in 
trust  relation  obtaining  adverse  title  to  trust  property;  (12  L.  R.  A.  396)  on 
rule  as  to  agent  acting  in  double  capacity;  (13  L.  R.  A.  490,  492)  on  confidential 
relation  between  parties;  (22  Am.  St.  Rep.  250)  on  validity  of  agent's  acts  for 
his  own  benefit;  (80  Am.  St.  Rep.  559,  565)  on  purchase  by  agent  of  principal's, 
property. 

4  L.  R.  A.  222,  THOMAS  v.  BURNETT,  128  111.  37,  21  N.  E.  352. 
Actual   or  constructive  notice  of  facts  affecting;  title  to  land. 

Cited  in  Sternbach  v.  Leopold,  50  111.  App.  499,  holding  lien  of  creditor's  mort- 
gage procured  by  debtor's  voluntary  act  not  prior  to  that  of  earlier  unrecorded 
mortgage;  Helm  v.  Kaddatz,  107  111.  App.  417,  and  Adam  v.  Tolman,  180  111.  64r 
54  N.  E.  174,  Affirming  77  111.  App.  182,  holding  recorded  mortgage  on  property 
by  one  in  possession  without  apparent  title  sufficient  to  warn  purchaser;  Ray  v. 
Keith,  218  111.  186,  75  N.  E.  921,  holding  perfection  of  attachment  levied  with- 
out notice,  by  judgment  execution  sale  and  deed  will  ripen  into  a  legal  estate 
superior  to  rights  under  a  prior  unrecorded  deed. 

Cited  in  footnotes  to  Brinser  v.  Anderson,  6  L.  R.  A.  205,  which  holds  pur- 
chaser required  to  inquire  into  rights  of  possessor  though  he  knows  of  lease  to 
him;  Rock  Island  &  P.  R.  Co.  v.  Dimick,  19  L.  R.  A.  105,  which  holds  open  and 
exclusive  possession  of  passageway  through  railroad  embankment  notice  of 
rights  to  purchaser  of  railroad;  Gibson  v.  Thomas,  70  L.R.A.  768,  which  holds 
unrecorded  release  of  portion  of  property  covered  by  mortgage  by  holder  to  mort- 
gagor not  binding  on  subsequent  assignee  of  mortgage  without  notice. 

Cited  in  notes  (8  L.R.A.  211)  on  constructive  notice  to  title  to  land  by  pos- 
session; (11  Eng.  Rul.  Gas.  548;  13  L.R.A.  (N.S.)  84)  on  possession  of  land  as 
notice  of  title. 

4  L.  R.  A.  224,  SHINN  v.  SHINN,  42  Kan.   1,  21  Pac.  813. 
Tenancy  by   the   entirety. 

Cited  in  Wilson  v.  Johnson.  4  Kan.  App.  751,  46  Pac.  833,  and  Simons  v. 
McLain,  51  Kan.  160,  32  Pac.  919,  holding  estates  by  joint  tenancy  existed  in. 
Kansas  prior  to  March  10,  1891;  Branch  v.  Polk,  61  Ark.  394,  30  L.  R.  A.  329 
54  Am.  St.  Rep.  266,  33  S.  W.  424,  holding  wife  and  husband  must  join  in  deed 
to  whole  estate  to  convey  full  estate  by  entirety;  Holmes  v.  Holmes,  70  Kan 
892,  79  Pac.  163,  holding  that  the  statute  abolishing  survivorship  estates  ity 
entirety  as  recognized  at  the  common  law  did"  not  effect  the  rights  of  a  survivor 
to  an  estate  vested  prior  to  its  enactment. 
Wife's  property. 

Cited  in  State  v.  Shaw,  79  Kan.  398,  21  L.R.A.(N.S.)  29,  131  Am.  St.  Rer. 
298.  100  Pac.  78,  holding  that  a  house  conveyed  by  husband  to  wife  is  a  hoi^e 
held  by  "one  other  than"  the  husband  under  the  statute  on  arson. 

4  L.  R.  A.  229,  OWEN  v.  ROBERTS,  81  Me.  439,   17  Atl.  403. 
Effect    of    insolvency    act    on    attachment. 

Cited  in  Peabody  v.  Stetson.  88  Me.  279.  34  Atl.  74,  holding  attachment  /-rior 
to  insolvency  act  not  dissolved  by  provisions  of  that  act. 


4  L.E.A.  231J  L.  R.  A.  CASES  AS  AUTHORITIES.  654 

4  L.  R.  A.  231,  PADDOCK  v.  ATCH1SON,  T.  &  S.  F.  R.  CO.  37  Fed.  841. 
Ejection  of  or  refusal  to  take  pSissenjfer. 

Cited  in  Zion  v.  Southern  P.  Co.  67  Fed.  503,  holding  compensatory  damages 
recoverable  for  insult,  abuse,  and  undue  violence  in  expelling  passenger;  Owens 
v.  Macon  &  B.  R.  Co.  119  Ga.  233,  63  L.R.A.  948,  46  S.  E.  87,  denying  liability  of 
carrier  for  refusal  to  transport  insane  person  who  was  boisterous  and  using  ob- 
scene language;  Owens  v.  Macon  &  B.  R.  Co.  119  Ga.  233,  63  L.R.A.  946,  46  S.  E. 
87,  holding  carrier  entitled  to  reasonable  notice  to  prepare  for  transportation  of  a 
lunatic;  Calhoun  v.  Pullman  Co.  16  L.R.A.  (N.S.)  577,  86  C.  C.  A.  387,  159  Fed. 
389,  holding  sleeping  car  company  not  liable  for  manner  in  which  carrier  per- 
forms its  contract  of  carriage  though  a  passenger  has  a  special  contract  for  berth 
with  such  sleeping  car  company;  Connors  v.  Cunard  S.  S.  Co.  204  Mass.  315,  26 
L.R.A.  (N.S.)  176,  134  Am.  St.  Rep.  662,  90  N.  E.  601,  17  A.  &  E.  Ann.  Gas.  1051, 
on  the  limitations  to  the  general  rule  that  a  common  carrier  is  obliged  to  carry 
any  one  presenting  himself  with  the  price  of  carriage. 

Cited  in  notes   (11  L.  R.  A.  432)   on  ejection  of  passengers;    (31  L.  R.  A.  263) 
on  duty  of  carriers  as  to  passengers  taken  ill  during  journey;    (26  Am.  St.  Rep. 
335)    on  liability  of  sleeping  car  company  for  ejection  of  passenger;    (35  L.  ed. 
U.  S.  923 )  on  duty  of  railroad  to  accept  all  passengers. 
—  Passenger  affected  with  communicable   disease. 

Cited  in  Pullman  Car  Co.  v.  Krauss,  145  Ala.  400,  4  L.R.A.  (N.S.)    105,  40  So. 
398,  8  A.  &  E.  Ann.  Cas.  218,  holding  sleeping  car  company  justified  in  rescind- 
ing a  contract  to  furnish  berth  on  grounds  that  holder  of  ticker  has  loathsome 
contagious  disease. 
Inability   of  railroad   for   acts   of  employee   of  sleeping;   car   company. 

Cited  in  note  (23  L.R.A.  (N.S.)  1059)  on  liability  of  railroad  for  acts  of  em- 
ployee of  sleeping  or  Pullman  car  company  toward  passengers. 

4  L.  R.  A.  232,  ANVIL  M1N.  CO.  v.  SHERMAN,  74  Wis.  226,  42  N.  \V.  226. 
Liability   of  subscriber   to   stock   of   corporation. 

Cited  in  Wechselberg  v.  Flour  City  Nat.  Bank,  26  L.  R.  A.  475,  12  C.  C.  A. 
61,  24  U.  S.  App.  308,  64  Fed.  95,  holding  previous  to  paying  in  requisite  statu- 
tory percentage  of  value  of  stock,  subscribers  liable  for  debts  made  in  name  of 
corporation. 

Cited  in  notes  (45  L.R.A.  647)  on  assessments  on  paid-up  stock;  (93  Am.  St. 
Rep.  370,  373,  379)  on  liability  to  corporations  of  subscribers  to  stock. 

Distinguished  in  Port  Edwards,  C.  &  N.  R.  Co.  v.  Arpin,  80  Wis.  217,  49  N. 
W.  828,  holding  railroad  company  may  assess  without  regard  to  aggregate  stock 
subscription  or  payments;  Milwaukee  Brick  &  Cement  Co.  v.  Schoknecht,  108 
Wis.  464,  84  N.  W.  838,  holding  duly  organized  corporation  may  recover  balance 
of  unpaid  subscription;  La  Crosse  Brown  Harvester  Co.  v.  Goddard,  114  Wis. 
612,  91  N.  W.  225,  sustaining  allegation  of  payment  in  money  and  property  of 
requisite  statutory  precentage  of  stock  value. 

4  L.  R.  A.  236,  Re  REINITZ,  39  Fed.  204. 

Immunity    from   arrest    after   extradition    for    different    crime. 

Cited  in  Re  Baruch,  41  Fed.  472,  holding  prisoner  brought  from  one  state  to 
•another  on  foreign  extradition  and  discharged  has  reasonable  time  to  return 
Ibefore  arrest  on  civil  process;  Ex  parte  Browne,  148  Fed.  70,  holding  person 
extradited  from  Canada  on  a  specific  charge  not  subject  to  commitment  for  a 
proceeding  had  prior  to  and  distinct  from  charge  on  which  he  was  extradited. 

Cited  in  footnotes  to  King  v.  McLean  Asylum,  26  L  R.  A.  784,  which  sustains 
Federal  jurisdiction  of  habeas  corpus  case  between  citizens  of  different  states 


655  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  241 

involving  right  to  liberty  from  restraint  as  insane  person;  Murray  v.  Wilcox, 
64  L.  R.  A.  5:34,  which  holds  defendant  in  criminal  case  coining  into  state  to 
attend  trial  exempt  from  service  of  civil  process. 

4  L.  R.  A.  239,  WATK1NDS  v.  SOUTHERN  P.  CO.  14  Sawy.  30,  38  Fed.  711. 
Pleading-    defense    of   contributory    negligence. 

C'ited  in  Berry  v.  Lake  Erie  &  W.  R.  Co.  70  Fed.  194,  denying  necessity  of 
pleading  or  proving  freedom  from  contributory  negligence;  New  Castle  Bridge 
Co.  v.  Doty,  37  Ind.  App.  88,  76  N.  E.  557,  holding  contributory  negligence  to  be 
an  affirmative  defense  and  must  be  proven  by  fair  preponderance  of  evidence  to 
defeat  action  for  negligence  with  burden  on  defendant;  Berry  v.  Lake  Erie  &  W. 
R.  Co.  70  Fed.  194,  holding  contributory  negligence  matter  of  defense  to  be 
averred  and  proved  by  defendant  and  plaintiff  need  not  aver  freedom  therefrom.' 

Cited  in  notes    (7  L.R.A.  819)    on  negligence  and  contributory  negligence  on 
street  railroad;    (33  L.R.A. (N.S.)    1201,  1209)    on  pleading  defense  of  contribu- 
tory negl  igence. 
—  Reply. 

Cited  in  Seffert  v.  Northern  P.  R.  Co.  49  Or.  96,  88  Pac.  962,  13  A.  &  E.  Ann. 
Cas.  883,  holding  that  a  denial  in  a  reply  of  each  and  every  allegation  in  the 
answer  contained  except  such  facts  in  the  complaint  as  are  confessed  and  avoided, 
is  not  a  nullity  and  if  merely  defective  must  be  questioned  or  objection  is  waived; 
Coney  Island  Co.  v.  Denman,  79  C.  C.  A.  375,  149  Fed.  693,  on  defense  of  con- 
tributory negligence  as  precluding  denial  of  negligence  in  the  answer. 
Allegation  of  matter  of  defense  in  complaint. 

Cited  in  Peters  v.  Hanger,  67  C.  C.  A.  386,  134  Fed.  590,  holding  that  where 
an  allegation  in  complaint  is  a  matter  of  defense  plaintiff  need  not  prove  it 
where  such  matter  is  immaterial. 

4  L.  R.  A.  241,  CARPENTER  v.  GREENOP,  74  Mich.  664,  16  Am.  St.  Rep.  662, 

42  N.  W.  276. 

Report  of  second  appeal  in  84  Mich.  49,  47  N.  W.  509. 
Dealings    of    partners    bet-ween    themselves    as    individuals. 

Cited  in  Jennings  v.  Pratt,  19  Utah,  137,  56  Pac.  951,  and  Campbell  v.  Bane, 
119  Mich.  42,  77  N.  W.  323,  holding  suit  at  law  maintainable  to  enforce  contract 
made  between  partners  as  individuals;  Halleck  v.  Streeter,  52  Neb.  829,  73  N.  W. 
219,  holding  partner  may  sue  co-partner  at  law  on  cause  of  action  not  connected 
with  partnership;  Re  Telfer,  106  C.  C.  A.  366,  184  Fed.  226,  holding  that  judi- 
cial recognition  of  partnership  entity  does  not  change  rule  fixing  substantive 
rights  of  creditors  respectively  of  firm  and  of  partners;  Kalamazoo  Trust  Co. 
v.  Merrill,  159  Mich.  654,  124  N.  W.  597,  holding  a  copartnership  bank  holding 
notes  against  debtors  some  of  whom  are  members  of  bank  cannot  sue  on  such 
notes. 

Cited  in  footnote  to  Hopkins  v.  Adey,  50  L.  R.  A.  498,  which  holds  unenforce- 
able, note  by  one  partner  and  comaker  to  other  partner  though  money  used  in 
paying  firm  obligations. 

Cited  in  notes  (46  L.  R.  A.  772)  on  rights  of  stockholder  of  negotiable  paper 
transferred  after  maturity  as  to  partnership  paper;  (11  L.  R.  A.  238)  on  com- 
mercial paper  executed  by  nontrading  partner. 

Distinguished  in  Clinton  Loan  Asso.  v.  Terrell,  114  N.  C.  303,  19  S.  E.  240, 
holding  statute  of  limitations  does  not  begin  to  run,  on  indorsement  by  partner 
of  third  person's  note  to  firm,  until  settlement  of  firm's  affairs. 


4  L.R.A.  241]  L.  R.  A.  CASES  AS  AUTHORITIES.  658 

Title  of  transferee  of  overdue   note. 

Cited  in  note  (4  Eng.  Rul.  Gas.  398)  on  title  of  transferee  of  overdue  note  or 
bill. 

4  L.  R.  A.  244,  LOUISVILLE,  E.  &  ST.  L.  R.  CO.  v.  WILSON,  119  Ind.  352,  21 
N.  E.  341. 

Judgment   upon  new  trial   on   amended  complaint,   Affirmed  in   132   Ind.   510, 
18  L.  R.  A.  106,  32  N.  E.  311. 
Parol  agreement   as   to   written   contract. 

Cited  in  Stewart  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  21  Ind.  App.  224,  52  N.  E. 
89,  holding  oral  negotiations  merged  in  written  contract  made  substantially  at 
time  of  shipment;  Providence  Washington  Ins.  Co.  v.  Board  of  Education,  49 
W.  Va.  377,  38  S.  E.  679,  holding  parol  proof  of  contemporaneous  waiver  of  con- 
dition in  insurance  policy,  inadmissible;  Indianapolis,  D.  &  W.  R.  Co.  v.  For- 
sythe,  4  Ind.  App.  327,  29  N.  E.  1138,  holding  complaint  upon  carrier's  implied 
contract  and  proof  of  bill  of  lading  exempting  from  liability  charged,  at  fatal 
variance;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Moline  Plow  Co.  13  Ind.  App.  234, 
41  N.  E.  480,  holding  agency  of  consignee  in  bill  of  lading  subject  to  parol  proof; 
Pennsylvania  Co.  v.  Clark,  2  Ind.  App.  152,  27  N.  E.  586,  holding  failure  to  ship 
cattle  on  particular  train  no  breach  of  written  contract  silent  as  to  time  or  train 
of  shipment  or  delivery;  Getting  v.  Kansas  City  Stock  Yards  Co.  183  U.  S.  98, 
46  L.  ed.  104,  22  Sup.  Ct.  Rep.  30,  holding  equal  protection  denied  by  law  regu- 
lating charges  of  stock-yard  companies  and  inapplicable  to  other  like  concerns. 

Cited  in  note    (6  L.  R.  A.  39)    on  written  contracts  as  evidence. 
Bills    of    lading. 

Cited  in  Chicago,  I.  &  L.  R.  Co.  v.  Hostetter,  171  Ind.  478,  84  N.  E.  534. 
holding  that  where  bill  of  lading  of  live  stock  is  silent  on  care  of  stock  in  transit 
the  duty  devolves  on  the  carrier  by  implication  of  the  common  law;  Portland 
Flouring  Mills  Co.  v.  British  &  F.  M.  Ins.  Co.  65  C.  C.  A.  344,  130  Fed.  863. 
holding  evidence  of  custom  of  doing  business  between  parties  to  bill  of  lading 
not  admissible  to  vary  contract  contained  in  the  bill  which  is  plain  and  unam- 
biguous; Central  R.  &  Bkg.  Co.  v.  Hasselkus,  91  Ga.  387,  44  Am.  St.  Rep.  37, 
17  S.  E.  838,  holding  inadmissible,  parol  evidence  as  to  time  of  delivery,  not 
mentioned  in  bill  of  lading. 

Cited  in  notes  (10  L.  R.  A.  416,  9  L.  R.  A.  264)   on  bills  of  lading. 

Distinguished  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Tyler,  9  Ind.  App.  690. 
35  N.  E.  523,  holding  baggage  check  but  prima  facie  evidence  of  carrier's  con- 
tract. 
Custom    us   evidence   to   prove   carrier's   rates. 

Cited  in  Halliday  Mill  Co.  v.  Louisiana  &  M.  W.  R.  Co.  80  Ark.  540,  98  S. 
W.  374,  holding  expert  testimony  admissible  to  show  reasonable  rate  for  ship- 
ment of  goods,  the  witness  having  special  knowledge  of  rates  under  similar  con- 
ditions though  he  had  no  knowledge  of  cost  of  transportation  or  financial  con- 
dition on  the  road  in  question. 

4  L.  R.  A.  247,  BELL  v.  PELT,  51  Ark.  433,  14  Am.  St.  Rep.  57,  11  S.  W.  684. 
Equitable   1  i«-n>. 

Cited  in  Williams  v.  Cunningham,  52  Ark.  442,  12  S.  W.  1072,  holding  equitable 
lien  on  crop  to  be  grown  created  by  instrument  expressing  such  intention ;  Martin 
v.  Schichtl,  60  Ark.  599,  31  S.  W.  458,  holding  misnomer  of  lien  does  not  defeat 
intention  of  parties;  Whitely  v.  Central  Trust  Co.  34  L.  R.  A.  307,  22  C.  C.  A. 
74,  43  U.  S.  App.  643,  76  Fed.  80,  holding  judgment  for  breach  of  vendee's  cove- 
nants in  deed  not  equitable  lien  on  land;  Ward  v.  Stark,  91  Ark.  273,  121  S. 


657  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  252 

W.  382,  holding  a  duly  executed  instrument  reciting  that  the  agreement  therein 
shall  be  a  lien  on  property  described  until  payment  of  purchase  price  of  im- 
provements thereon  is  an  equitable  lien  or  mortgage;  Cox  v.  Smith,  93  Ark. 
375,  137  Am.  St.  Rep.  89,  125  S.  \V.  437,  holding  that  vendor  has  lien  for  amount 
unpaid,  where  vendee  agrees  to  pay  part  of  price  by  building  partition  wall,  or  in 
default  thereof,  cash,  and  he  does  not  build  wall;  Denison  &  N.  R.  Co.  v.  Raney- 
Alton  Mercantile  Co.  3  Ind.  Terr.  156,  53  S.  W.  496,  holding  that  where  supplies 
are  furnished  constructive  camps  on  promise  that  indebtedness  for  same  shall  be 
lien  on  railroad,  by  railroad  company  through  orders  of  court,  such  indebtedness 
shall  be  an  equitable  lien  on  property  for  company,  though  orders  of  court 
were  without  jurisdiction;  Garrison  v.  Vermont  Mills,  154  X.  C.  7,  31  L.R.A. 
(N.S.)  453,  69  S.  E.  743,  holding  that  contract  between  manufacturer  and  sales 
agent  that  agent  will  make  advances  on  goods  on  hand  in  storehouse  of  manu- 
facturer, gives  agent  equitable  lien;  Harrigan  v.  Gilchrist,  121  Wis.  360,  361,  99 
N.  W.  909,  holding  an  attempt  to  make  a  mortgage  sufficient  being  done  to  enable 
a  court  of  equity  to  ascertain  with  certainty  the  purpose  of  the  parties,  the 
property  involved  and  the  terms  of  the  contract  is  a  good  equitable  mortgage. 
Cited  in  note  (32  Am.  St.  Rep.  656)  on  what  constitutes  a  mortgage. 

4  L.  R.  A.  251,  ROBINSON  v.  GERMAN  INS.  CO.  51  Ark.  441,  11  S.  W.  686. 
Insurance     premium     notes. 

Cited  in  German  American  Ins.  Co.  v.  Divilbiss,  67  Mo.  App.  503,  and  Phenix 
Ins.  Co.  v.  Rollins,  44  Neb.  750,  63  N.  W.  46,  holding  clause  in  policy  providing 
for  suspension  for  nonpayment  of  premium  does  not  prevent  recovery  on  note; 
Economic  Life  Asso.  v.  Spinney,  116  Iowa,  387,  89  N.  W.  1095,  holding  insurer 
entitled  to  recover  amount  due  on  premium  note  after  forfeiture  of  policy  for 
nonpayment. 
Insurance  policy,  parol  evidence  to  vary. 

Cited  in  Germania  Ins.  Co.  v.  Bromwell,  62  Ark.  47,  34  S.  W.  83,  holding  parol 
evidence  inadmissible  to  contradict  insurance  policy. 

Cited  in  note  (20  Am.  St.  Rep.  826)  on  parol  evidence  to  contradict  insurance 
policy. 

Authority   of   foreign   corporations   to   tlo   business   not   disputable   on   ap- 
peal. 

Cited  in  St.  Louis,  A.  &  T.  R.  Co.  v.  Fire  Asso.  of  Philadelphia,  55  Ark.  174, 
18  S.  W.  43,  holding  foreign  corporation's  compliance  with  statutory  requirements 
cannot  be  questioned  first  on  appeal. 

4  L.  R.  A.  252,  FT.  SMITH  v.  DODSON,  51  Ark.  447,  14  Am.  St.  Rep.  62,  11  S.  W. 

687. 
Estray    proceedings;    strict    compliance   -with    statute    necessary. 

Cited  in  McCrossin  v.  Davis,  100  Ala.  633,  13  So.  607,  holding  one  claiming 
under  estray  proceedings  must  show  strict  compliance  with  statute. 

Cited  in  note  (90  Am.  St.  Rep.  217,  219)   on  summary  proceedings  to  impound 
and  sell  animals. 
Liability  of  city. 

Cited  in  Gregg  T.  Hatcher,  94  Ark.  57,  27  L.R.A.  (N.S.)  140,  125  S.  W.  1007; 
21  Ann.  Cas.  982,  holding  city  not  liable  for  an  unlawful  impounding  under  an 
ordinance  authorized  by  legislature. 

Cited   in  note    (27   L.R.A. (N.S.)    139)    on  municipal  liability  for   impounding 
animals. 
.—  Constitutionality  of  statutes. 

Cited  in  footnotes  to  Greer  v.  Downey,  61  L.  R.  A.  408,  which  holds  void  stat- 
L.R.A.  Au.  Vol.  I.— 42. 


4  L.R.A.  2.V2]  L.  R.  A.  CASES  AS  AUTHORITIES.  653 

ute  authorizing  without  judicial   proceeding  sale  at   auction  of  trespassing  ani- 
mals after  specified  notice;  Burdett  v.  Allen.  14  L.  R.  A.  337.  which  holds  sum- 
mary  proceedings   for   impounding   animals   at    large   unconstitutional. 
Deprivation   of   property   -without    cine   process. 

Cited  in  Clapp  v.  Houg,  12  N.  D.  608,  65  L.R.A.  761,  102  Am.  St.  Rep.  589, 
9S  X.  \V.  710,  holding  a  statute  providing  for  special  administration  of  the  prop- 
erty of  a  person  thought  to  be  dead,  void  as  a  taking  of  property  without  due 
process  of  law. 

4  L.  R.  A.  255,  POPE  v.  POLLOCK,  46  Ohio  St.  367,  15  Am.  St.  Rep.  608,  21 

N.  E.  356. 
Malicious    civil    prosecution,    when    action    maintainable. 

Cited  in  Antcliff  v.  June,  81  Mich.  490,  10  L.  R.  A.  626,  21  Am.  St.  Rep.  533, 
45  N.  W.  1019;  Metcalf  v.  Bockoven,  62' Neb.  884,  87  N.  W.  1055;  McCormick 
Harvesting  Mach.  Co.  v.  Willan,  63  Neb.  393,  56  L.  R.  A.  340,  93  Am.  St.  Rep. 
449  88  N.  W.  497;  Kolka  v.  Jones,  6  N.  D.  465,  66  Am.  St.  Rep.  615,  71  N.  W. 
558, —  holding  action  maintainable  for  malicious  prosecution  of  civil  suit  without 
probable  cause,  though  no  interference  with  person  or  property ;  McPhcrson  v. 
Runyon,  41  Minn.  525,  16  Am.  St.  Rep.  727,  43  N.  W.  392,  holding  action  main- 
tainable for  malicious  prosecution  of  replevin  proceedings;  Cooper  v.  Armour, 
8  L.  R.  A.  48,  42  Fed.  217,  holding  one  accused  before  magistrate  of  criminal 
offense,  but  not  arrested,  cannot  maintain  action;  Whitesell  v.  Study,  37  Ind. 
App.  432,  76  N.  E.  1010.  holding  that  the  action  may  be  maintained  where  the 
malicious  suit  was  commenced  by  summons  only,  process  of  attachment  not  being 
essential;  Laver  v.  Canfield,  7  Ohio  C.  C.  N.  S.  395,  28  Ohio  C.  C.  435,  holding 
that  action  will  lie  for,  maliciously  and  without  probable  cause,  prosecuting 
action  in  forcible  entry  and  unlawful  detainer;  Wilson  v.  Whitacre,  4  Ohio  C. 
C.  21,  2  Ohio  C.  D.  396,  on  same  point. 

Cited  in  footnotes  to  Zinn  v.  Rice,  12  L.  R.  A.  288,  which  holds  action  for  ex- 
cessive attachment  of  goods  maintainable  before  termination  of  suit ;  Sneeden 
v.  Harriss,  14  L.  R.  A.  389,  which  authorizes  action  for  malicious  abuse  of  civil 
process  to  accomplish  collateral  purpose;  McCormick  Harvesting  Mach.  Co.  v. 
Willan,  56  L.  R.  A.  338,,  which  authorizes  suit  for  malicious  prosecution  of 
civil  action  without  restraint  of  person  or  seizure  of  property;  Abbott  v. 
Thorne,  65  L.R.A.  826,  which  denies  right  of  action  for  malicious  prosecution  of 
civil  action  in  whi?h  there  was  no  arrest  or  attachment  of  property  and  no 
special  injuries  inflicted. 

Cited  in  notes  (13  L.  R.  A.  60)  on  general  rules  as  to  malicious  prosecution; 
(10  L.  R.  A.  622)  on,  when  action  for  malicious  prosecution  maintainable; 
{13  L.R.A.  464)  en  what  must  be  shown  in  action  for  malicious  prosecution; 
(93  Am.  St.  Rep.  457,  467)  on  liability  for  malicious  prosecution  of  civil  action. 

Distinguished  in  Cincinnati  Daih-  Tribune  Co.  v.  Bruck,  61  Ohio  St.  491,  76 
Am.   St.   Rep.   433,   56   N.   E.    198,   holding  suit  not   maintainable   for   malicious 
prosecution,  without  probable  cause,  of  action  for  dissolution  of  corporation. 
Malice   anil   want    of   probable   cause    essential. 

Cited  in  Mitchell  v.  Silver  Lake  Lodge,  29  Or.  301,  45  Pac.  798,  holding  malice 
and  want  of  probable  cause  must  be  alleged  in  action  for  wrongful  attachment 
not  brought  on  bond;  Waring  v.  Fletcher,  152  Ind.  629,  52  X.  E.  203.  holding  in 
action  for  suing  out  attachment  in  excess  of  debt,  malice  and  want  of  probable 
cause  must  be  proved. 

Cited  in  footnote  to  Le  Clear  v.  Perkins,  26  L.  R.  A.  627,  which  holds  advice 
of  counsel  admissible  as  defense  to  malicious  prosecution  of  civil  suit. 


659  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  261 

Cited  in  note  (12  L.  R.  A.  760)  on  defense  of  reasonable  and  probable  cause  in 
notion  for  malicious  prosecution. 

What   In  term i nation  of  prosecution. 

Cited  in  Southern  Car  &  Foundry  Co.  v.  Adams,  131  Ala.  156,  32  So.  503, 
holding  dismissal  of  charge  without  trial  such  termination  as  will  sustain  action. 
Cited  in  footnotes  to  Craig  v.  Ginn,  c3  L.  R.  A.  713,  which  holds  discharge  of 
prosecution  by  agreement  on  defendant's  paying  half  amount  claimed  to  have 
been  obtained  by  false  pretenses,  not  termination  supporting  action  for  malicious 
prosecution;  Luby  v.  Bennett,  56  L.  R.  A.  261,  which  holds  suit  for  malicious 
prosecution  maintainable  if  material  issues  of  prosecution  decided  in  defendant's 
favor  before  suit  commenced. 

Damages. 

Cited  in  footnote  to  Stoecker  v.  Xathanson,  70  L.R.A.  667,  which  holds  loss 
of  employment  because  of  false  imprisonment  element  of  damages  where  offer  of 
employment   was  withdrawn  because  thereof,  though  contract  had  not  actually 
been  completed.    * 
Attorneys'  fees  as  costs. 

Cited  in  Watson  v.  Watson,  21  Ohio  C.  C.  251,  .11  Ohio  C.  D.  464,  holding 
attorneys'  fees  not  included  in  "costs"  in  action  for  dower. 

4  L.  R.  A.  261,  USHER  v.  WEST  JERSEY  R.  CO.  126  Pa.  206,  12  Am.  St.  Rep. 

863,  17  Atl.  597. 
Statutory  eanse  of  action  for  deatb. 

Cited  in  Major  v.  Burlington,  C.  R.  &  X.  R.  Co.  115  Iowa,  314,  88  X.  W.  815, 
"holding  action  not  maintainable  by  widow  for  damages  resulting  to  her  individu- 
ally for  wrongfully  killing  of  husband;  Fisher  v.  Lehigh  &  X.  E.  R.  Co.  12  Xorth. 
Co.  Rep.  396,  20  Pa.  Dist.  R.  446,  holding  that  widow  will  not  be  required  to 
elect  between  action  in  state  court  under  state  statute  and  action  in  Federal 
vcourt  under  Federal  statute. 

Cited  in  notes    (5  L.  R.  A.   174,  7  L.  R.  A.   154)    on  action  for  damages  for 
death  caused  by  negligence;    (70-  Am.  St.  Rep.  670,  673)    on  actions  for  death 
of  human  being. 
Enforcement    in    other   state. 

Cited  in  Xelson  v.  Chesapeake  &  0.  R.  Co.  88  Va.  977,  15  L.  R.  A.  587,  14 
"S.  E.  838,  holding  statutory  cause  of  action  for  death  enforceable  in  another 
state  when  not  inconsistent  with  laws  or  policy;  Hanna  v.  Grand  Trunk  R.  Co. 
41  111.  App.  130,  holding  action  maintainable  for  causing  death  in  another  state, 
though  statutes  differ  as  to  nominal  plaintiff  and  limit  of  recovery;  Kiefer  v. 
Grand  Trunk  R.  Co.  12  App.  Div.  32,  42  X.  Y.  Supp.  171,  holding  interest  on 
damages  not  allowable  in  action  for  death  when  not  given  where  injury  occurred; 
Boulden  v.  Pennsylvania  R.  Co.  205  Pa.  269,  54  Atl.  906,  holding  action  for 
death  arising  in  Xew  Jersey  maintainable  in  Pennsylvania  by  Xew  Jersey  admin- 
istrator without  ancillary  administration:  McGinnis  v.  Missouri  Car  &  Foundry 
Co.  174  Mo.  231,  97  Am.  St.  Rep.  553,  73  S.  W.  586,  holding  void  statute  au- 
thorizing action  by  person  appointed  by  court,  for  negligent  killing  of  person  in 
other  state  whose  statute  requires  such  action  to  be  brought  by  administrator; 
Fabel  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  30  Ind.  App.  272,  65  X.  E.  929,  denying 
•right  of  father  in  individual  capacity  to  maintain  action  in  Indiana  for  negli- 
gent killing  of  son  in  Ohio;  Thorpe  v.  Union  P.  Coal  Co.  24  Utah.  481,  68  Pac. 
145,  holding  that  action  in  Utah  for  negligent  killing  of  person  in  Wyoming  must 
be  brought  in  name  of  personal  representative  of  deceased:  Stewart  v.  Great 
Northern  R.  Co.  103  Minn.  157,  123  Am.  St.  Rep.  318,  114  X.  W.  953,  holding  that 


4  L.R.A.  201]  L.  R.  A.  CASES  AS  AUTHORITIES.  660 

plaintiff  must  plead  a  statute  of  the  state  where  killing  occurred  creating  the- 
liability,  and  also  his  personal  right  to  maintain  the  action;  Connor  v.  New 
York,  N.  H.  &  H.  R.  Co.  28  R.  I.  562,  18  L.R.A.  (N.S.)  1256,  68  Atl.  481,  13  A.. 
&  E.  Ann.  Cas.  1033,  holding  that  where  cause  of  action  arose  in  Connecticut,  un- 
der statute  providing  for  suit  by  administrator  appointed  in  that  state,  he 
may  maintain  action  in  Rhode  Island  where  statute  provides,  that  administrator 
whether  appointed  within  or  without  state  may  bring  action. 

Cited  in  notes  (10  L.  R.  A.  767)  on  recognition  of  foreign  laws;  (6  L.  R.  A, 
110)  on  law  of  comity  in  enforcement  of  rights;  (56  L.  R.  A.  197,  210,  211,  213) 
on  conflict  of  laws  as  to  action  for  death  or  bodily  injury;  (14  Am.  St.  Rep. 
355)  on  action  to  enforce  cause  of  action  created  by  statute  of  another  state. 

Rig-ht   of   action,    in    whom. 

Approved  in  Wooden  v.  Western  N.  Y.  &  P.  R.  Co.  126  N.  Y.  16,  13  L.  R.  A. 
461,  22  Am.  St.  Rep.  803,  26  N.  E.  1050,  and  Stone  v.  Groton  Bridge  &  Mfg.  Co. 
77  Hun,  102,  28  N.  Y.  Supp.  446,  holding  that  only  person  designated  as  plaintiff 
in  statute  giving  cause  of  action  can  maintain  action  in  another  state;  Derr  v. 
Lehigh  Valley  R.  Co.  158  Pa.  370,  33  W.  N.  C.  295,  38  Am.  St.  Rep.  848,  27  Atl. 
1002,  denying  right  to  maintain  action  in  one  state  for  death  therein  of  person 
injured  in  other  state  unless  negligence  proximately  causing  injury  occurred  in 
former  state;  Hoodmacher  v.  Lehigh  Valley  R.  Co.  218  Pa.  22,  66  Atl.  975, 
holding  that  the  right  of  action  arose  in  Pennsylvania,  where  negligent  cause 
originated  in  that  state  continued  into  New  Jersey  where  injuries  were  inflicted' 
and  death  occurred  in  former  state. 

Cited  in  Fithian  v.  St.  Louis  &  S.  F.  R.  Co.  188  Fed.  844,  holding  that  action 
under  employer's  liability  act  can  be  brought  only  in  name  of  person  to  whom 
right  is  given  by  act;  Salmon  v.  Rathjens,  152  Cal.  294,  92  Pac.  733,  holding 
the  right  of  action  for  death  by  negligence  being  statutory  must  be  brought  by 
or  in  the  names  of  persons,  entitled  to  the  right  of  action  by  the  statute;  Harsh- 
man  v.  Northern  P.  R.  Co.  14  N.  D.  72,  103  N.  W.  412,  holding  where  the  right 
of  action  is  given  to  particular  persons  it  cannot  be  brought  by  sole  beneficiary 
he  not  being  one  of  the  persons  specified  in  statute;  La  Bar  v.  New  York,  S.  & 
W.  R.  Co.  218  Pa.  263,  67  Atl.  413,  holding  that  the  action  must  be  in  the  names, 
of  the  persons  to  whom  the  right  is  given  by  statute  of  state  in  which  injuries 
were  inflicted  and  the  death  occurred;  Kober's  Estate,  17  Pa.  Dist.  R.  185,  hold- 
ing where  right  of  action  is,  by  statute  of  place  where  injury  was  inflicted,  in; 
the  personal  representative,  the  decedent  being  an  intestate  it  is  necessary  that 
letters  of  administration  be  granted;  Jack  v.  Pennsylvania  R.  Co.  43  Pa.  Super. 
Ct.  342,  holding  that  widow  who  has  recovered  damages  for  death  of  husband 
cannot  sue  in  another  state  upon  his  relief  fund  claim,  where  recovery  of  dam- 
ages bars  injury  benefits. 

Cited  in  footnote  to  O'Reilly  v.  New  York  &  N.  E.  R.  Co.  6  L.  R.  A.  719,  which 
authorizes  suit  by  personal  representatives  for  death  by  negligent  act  of  carrier 
in  other  state. 

Cited  in  note   (17  L.  R.  A.  77)   on  action  by  parent  for  death  of  child. 
Corporations ;     service    of    process. 

Distinguished  in  Phillips  v.  Burlington  Library  Co.  141  Pa.  466,  28  W.  N.  C.. 
22,  23  Am.  St.  Rep.  304,  21  Atl.  640,  holding  jurisdiction  of  cause  of  action- 
arising  elsewhere  not  acquired  by  serving  within  state  officer  of  foreign  corpora- 
tion not  doing  business  therein. 

\  i-ivl  iji;«'ii«'«>  action Damages. 

Cited  in  footnote  to  Illinois  C.  R.  Co.  v.  Slater,  6  L.  R.  A.  418,  which  authorizes 
allowance  to  infant  for  loss  by  injury,  of  earnings  during  minority. 


661  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  i!68 

Admission   of   deceilent   us   evidence. 

Cited  in  footnote  to  Georgia  R.  &  Bkg.  Co.  v.  Fitzgerald,  49  L.  R.  A.  i75,  which 
holds  evidence  of  admission  by   person  injured  that  injury  was  due  to  accident 
admissible  against  his  widow. 
Comity    between    gtates. 

Cited  in  Doubt  v.  Pittsburg  &  L.  E.  R.  Co.  19  Pa.  Co.  Ct.  184,  6  Pa.  Dist.  R. 
242,  27  Pittsb.  L.  J.  N.  S.  272,  declining  to  aid  one  in  obtaining  depositions  who 
unnecessarily  went  to  another  state  to  bring  action;  Keep  v.  National  Tube  Co. 
154  Fed.  123,  holding  that  a  difference  in  the  lex  loci  and  the  lex  fori  as  to 
amount  of  damages  recoverable,  limitation  of  time  to  bring  action,  and  provision 
for  deduction  from  amount  recovered,  for  funeral  expense,  does  not  warrant 
refusal  of  comity. 

4  L.  R.  A.  265,  FRANKE  v.  PADUCAH  WATER  SUPPLY  CO.  88  Ky.  467,  11 

S.  W.  432,  718. 
Delegation    of    municipal    powers. 

Cited  in  Arnold  v.  Pawtucket,  21  R.  I.  19,  41  Atl.  576,  holding  power  con- 
ferred on  district  to  regulate  use  of  water  and  fix  price  cannot  be  delegated;  Til- 
ford  v.  Belknap,  126  Ky.  249,  11  L.R.A.(N.S.)  709,  103  S.  W.  289,  holding 
municipal  ordinance  requiring  consent  of  owners  of  buildings  within  certain 
radius  of  proposed  building,  necessary  to  permit  construction  of  such  building 
a  delegation  to  private  citizens  of  a  governmental  power. 

Cited  in  note  (20  L.  R.  A.  725)  on  delegation  of  municipal  power  as  to  license. 
Municipal  water  anpply. 

Cited  in  note  (61  L.  R.  A.  106)  on  establishment  and  regulation  of  municipal 
water  supply. 

Distinguished  in  Pocatello  Water  Co.  v.  Standley,  7  Idaho,  161,  61  Pac.  518, 
upholding  right  of  water  company  to  enjoin  plumber  from  tapping  its  mains. 
Validity   of   plumber's  license  act. 

Cited  in  note  (5  L.R.A.  (N.S.)  675)  on  constitutionality  of  statute  requiring 
plumbers  to  be  licensed. 

4  L.  R.  A.  268,  KING  v.  BATES,  149  Mass.  73,  21  N.  E.  237. 
Guaranty. 

Cited  in  footnote  to  Staver  &  Walker  v.  Locke,  17  L.  R.  A.  652,  which  hold.i 
payment  of  notes  taken  by  agent  for  goods  sold  not  covered  by  guaranty  of  fuil 
performance  of  agent's  engagements. 

Cited  in  notes  (4  L.  R.  A.  343,  8  L.  R.  A.  381)  on  rule  of  construction  of 
guaranty;  (21  L.R.A.  (N.S.)  154)  on  maturity  of  obligation  as  terminating 
liability  of  guarantor  of  interest. 

Distinguished  in  Bousquet  v.  Ward,  116  Iowa,  130,  89  N.  W.  196,  holding 
guarantors  not  liable  for  interest  accruing  after  maturity  of  bonds;  Merritt  v. 
Haas.  106  Minn.  280,  21  L.R.A. (N.S.)  156,  119  N.  W.  247,  holding  that  contract 
of  guaranty  includes  payment  of  interest  till  date  of  maturity  where  agreement 
is  to  pay  interest  until  note  is  "paid  in  full." 
Notice  of  default. 

Cited  in  Welch  v.  Walsh,  177  Mass.  560,  52  L.  R.  A.  784,  83  Am.  St.  Rep.  302, 
59  N.  E.  440,  holding  guarantor  of  lease  not  entitled  to  notice  of  default  in 
paying  rent. 

Cited  in  footnote  to  Nading  v.  McGregor,  6  L.  R.  A.  686,  which  holds  notice 
unnecessary  to  one  agreeing  "guarantee  to  pay  for"  any  timber  of  certain  class. 


4  L.R.A.  268]  L.  R.  A.  CASES  AS  AUTHORITIES.  662 

Promissory   notes?    Interest. 

Cited  in  Kendall  v.  Equitable  Life  Assur.  Soc.  171  Mass.  574,  51  X.  E.  464, 
holding  rate  of  interest  after  maturity  stipulated  in  note  continues  until  payment 
or  judgment. 

4  L.  R.  A.  272,  PROPRIETORS  OF  MILLS  v.  BRAIXTREE  WATER  SUPPLY 

CO.  149  Mass.  478,  21  N.  E.  761. 
Private    rights    in    public    -waters. 

Cited  in  Proprietors  of  Mills  v.  Randolph,  157  Mass.  349,  32  X.  E.  153,  holding 
mill  owners  entitled  to  damages  for  taking  waters  of  public  pond  for  public 
use  only  where  statute  authorizes  compensation. 

Cited  in  footnotes  to  Auburn  v.  Union  Water-Power  Co.  38  L.  R.  A.  188,  which 
holds  taking  one-fifteenth  water  supply  of  great  pond  for  city  not  unreasonable 
as  to  owners  of  mill  privileges;  Watuppa  Reservoir  Co.  v.  Fall  River,  13  L.  R.  A. 
255,  which  holds  right  of  private  persons  in  great  ponds  not  affected  by  ordinance 
of  1647;  Atty.  Gen.  ex  rel.  Mann  v.  Revere  Copper  Co.  9  L.  R.  A.  510,  which 
holds  private  rights  in  great  ponds  acquirable  by  prescription;  Concord  Mfg.  Co. 
v.  Robertson,  18  L.  R.  A.  679,  as  to  abutter's  rights  in  public  water  and  land 
under  same. 

Cited  in  notes  (8  L.R.A.  578)  on  property  in  unnavigable  lakes;  (7  Eng.  RuT. 
Cas.  485)  on  injunction  against  pollution  and  diversion  of  stream. 

Distinguished  in  Proprietors  of  Mills  v.   Com.   164  Mass.  232,  41   X.  E.   280, 
holding  corporation  not  exercising  right  to  erect  dam  and  lower  outlet  of  great 
pond  not  entitled  to  damages  for  taking  adjoining  lands  for  public  park. 
Percolating   waters;    right    to. 

Cited  in  Hollingsworth  &  V.  Co.  v.  Foxborough  Water  Supply  Dist.  165  Mass. 
188,  42  N.  E.  574,  holding  one  not  entitled  to  draw  water  from  pond  directly, 
cannot  by  percolation;  Forbell  v.  Xew  York,  47  App.  Div.  376.  61  X.  Y.  Supp. 
1005,  holding  city  cannot  drain  percolating  water  from  land  to  which  it  has 
no  title. 

Cited  in  note  (19  L.  R.  A.  98)  on  rights  in  subterranean  waters. 
"Spring"    defined. 

Cited   in   Gring  v.   Sinking   Spring   Water   Co.   7   Pa.   Super.   Ct.   67,   defining- 
"spring"  as  water  at  point  of  issue  from  earth ;  not  including  water  course  there- 
from. 
Collateral    liability    for    taking    for    pnblic    use. 

Cited  in  Emerson  v.  Somerville,  166  Mass.   117,  44  X.  E.  110,  raising  without 
deciding  question  whether  city  purchasing  land  for  park  is  collaterally  liable  to. 
owner  of  buildings  thereon. 
Proper   parties   complainant   in   bill    in   eqnity. 

Cited  in  Lonsdale  Co.  v.  Woonsocket,  21  R.  I.  500,  44  Atl.  929.  holding  mill 
owners  having  common  interest  in  preventing  diversion  of  water  may  join  in  bill. 
Concurrent  jurisdiction  of  law  and  eqnity. 

Cited  in  Kewanee  v.  Otley,  204  111.  411,  68  X.  E.  388,  holding  recovery  of 
judgment  at  law  for  damages  not  a  bar  to  later  action  for  injunction  against 
continuing  nuisance. 

Cited  in  note  (10  Eng.  Rul.  Cas.  314)  on  remedy  of  owner  of  easement  by 
action  at  law  and  by  injunction. 

4  L.  R.  A.  275,  KYLE  v.  TEXAS  &  X.  O.  R.  CO.   (Tex.  App.)   report. 
Eminent    domain,    when    right    exists. 

Cited   in  Chattanooga  Terminal  R.   Co.   v.   Felton,  69   Fed.  279,  holding  land 


663  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  280 

may  not  be  condemned  for  spur  switch  to  private  factory;  Riley  V.  Louisville, 
H.  &  St.  L.  R.  Co.  142  Ky.  69,  35  L.R.A.(N.S-)  638,  133  S.  W.  971,  holding  that 
railroad  spur  to  factory  is  for  public  use,  if  intention  is  to  extend  it  further 
when  business  justifies  it. 

Cited  in  notes  (20  L.  R.  A.  4.38)  on  power  to  condemn  right  of  way  for  railroad 
sidings  to  private  establishment:  (4  L.R.A.  792)  on  right  of  eminent  domain:  (22 
L.R.A.(X.S-)  3)  on  judicial  power  over  eminent  domain. 

Disapproved  in  Ulmer  v.  Lime  Rock  R.  Co.  98  Me.  590,  57  Atl.  1001,  upholding 
right  of  railroad  company  to  condemn  right  of  way   for  branch   track  to  lime 
quarry;   Zircle  v.   Southern  R.  Co.   102  Va.  22,  102  Am.  St.  Rep.  805,  45  S.  E. 
802,  upholding  right  to  condemn  property  for  right  of  way  to  private  mills. 
Kiulit    of    way. 

Cited  in  footnote  to  Herrman  v.  Roberts,  7  L.  R.  A.  226,  which  holds  grantee 
of  right  of  way  entitled  to  rights  incident  to  enjoyment  of  right  of  passage. 
License   to   use   property. 

Cited  in  footnote  to  Pierce  v.  Cleland,  7  L.  R.  A.  752,  which  holds  license  to  use 
property  irrevocable  after  money  expended. 

Cited  in  notes  (10  L.  R.  A.  487)  on  effect  of  executed  license;  (6  L.  R.  A. 
160)  on  easement  and  license  distinguished. 

4  L.  R.  A.  280,  MISSOURI  P.  R.  CO.  v.  RICHMOND,  73  Tex.  568,  15  Am.  St 

Rep.  794,  11  S.  W.  555.  * 

Liability   of   corporation    for   libel. 

Cited  in  Belo  v.  Fuller,  84  Tex.  452,  31  Am.  St.  Rep.  75,  19  S.  W.  616,  holding 
corporation  civilly  liable  for  libel:  Hypes  v.  Southern  R.  Co.  82  S.  C.  318,  21 
L.R.A.  (N.S.)  874.  64  S.  E.  395,  17  A.  &  E.  Ann.  Cas.  620,  holding  railroad  com- 
pany liable  for  slander  of  engineer  by  division  superintendent  made  within  scope 
of  his  authority  and  in  discharge  of  his  duties,  though  the  company  had  no 
knowledge  or  gave  no  consent. 

Cited  in  notes    (115  Am.  St.   Rep.   725,   726)    on   corporate  liability  for  libel 
and  slander;    (16  Eng.  Rul.  Cas.  756)    on  liability  of  corporation  for  malicious 
prosecution. 
What    «onatitntes    libel. 

Cited  in  Nettles  v.  Somervell,  6  Tex.  Civ.  App.  631,  25  S.  W.  658,  holding 
publication  of  person  as  unworthy  of  trust  or  credit,  libelous;  St.  James  Mili- 
tary Academy  v.  Gaiser,  125  Mo.  525,  28  L.  R.  A.  674,  46  Am.  St.  Rep.  502,  28 
S.  W.  851,  holding  charge  that  school  teaching  and  permitting  dancing  harmful 
to  community's  moral  and  religious  interests,  libelous  per  se;  Mayo  v.  Goldman, 
57  Tex.  Civ.  App.  477,  122  S.  W.  449,  holding  it  slanderous  per  se  to  impute  to 
clerk  that  he  has  been  bribed  to  betray  confidence  of  employer. 

Cited  in  footnotes  to  Moore  v.  Manufacturers  Xat.  Bank,  11  L.  R.  A.  753,  which 
holds  reference  in  statement  to  sureties  of  cashier  to  items  drawn  by  "collusion 
with  teller"  libelous  as  to  teller:  Woodruff  v.  Bradstreet  Co.  5  L.  R.  A.  555, 
which  holds  publication  that  judgment  recovered  against  merchant  or  trader 
libelous. 

Cited   in  notes    (9  L.R.A.  621)    on  libel  and  slander;    (4  L.R.A. (N.S.)    1122) 
on  liability  growing  out  of  giving  or  refusing  information  affecting  character  or 
reputation  of  servant;    (17   Eng.  Rul.  Cas.  252)    on  right  of  servant  as  to  tes- 
timonial as  to  character  after  termination  of  relation. 
Privileged    fomniunicationg. 

Cited  in  Schulze  v.  Jalonick,  18  Tex.  Civ.  App.  308,  44  S.  W.  580,  holding 
ixmimunication  to  agents  of  insurance  company  of  matter  for  their  guidance, 


4  L.R.A.  280]  L.  E.  A.  CASES   AS  AUTHORITIES.  664 

privileged;  Rude  v.  Nass,  79  Wis.  328,  24  Am.  St.  Rep.  717,  48  N.  W.  555,  holding 
reply  to  letter  written  by  third  person  at  request  of  person  interested,  privileged; 
Younians  v.  Smith,  153  N.  Y.  220,  47  N.  E.  265,  holding  list  of  questions  to  be 
asked,  submitted  to  witnesses  by  attorney,  privileged. 

Cited  in  footnotes  to  Conroy  v.  Pittsburgh  Times,  11  L.  R.  A.  725,  which  holds 
privileged  communication  one  properly  made  on  proper  occasion  from  proper 
motive  on  probable  cause;  Fresh  v.  Cutter,  10  L.  R.  A.  67,  which  holds  voluntary 
communication  in  good  faith  to  neighbor  about  to  employ  servant  that  he  had 
stolen,  privileged;  Brown  v.  Norfolk  &  W.  R.  Co.  60  L.  R.  A.  472,  which  holds 
privileged,  publication  as  to  reason  for  employee's  discharge;  Hemmens  v.  Nelson, 
20  L.  R.  A.  440,  which  holds  statement  by  principal  of  deaf  mute  institute  to 
executive  committee  as  to  improper  acts  of  department  superintendent  privileged; 
Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  releVant  words  spoken  by  party  to 
action  during  trial  privileged;  Rothholz  v.  Dunkle,  13  L.  R.  A.  655,  which  holds 
communication  by  bank  cashier  to  stockholder  as  to  solvency  of  surety  on  bond 
to  bank,  privileged;  Sullivan  v.  Strahorn-Hutton-Evans  Commission  Co.  47  L.  R. 
A.  859,  which  holds  imputation  of  evil  motives  as  dishonesty  in  letter  complaining 
of  nonpayment  of  debt  by  third  person  through  bank,  not  privileged. 

Cited  in  notes    (104  Am.  St.  Rep.  112,  150)    on  what  libelous  statements  are 
privileged;    (9  Eng.  Rul.  Cas.  81,  82)   as  to  what  communications  enjoy  a  quali- 
fied privilege. 
Necessity    of    proving?    mallcje. 

Cited  in  Missouri  P.  R.  Co.  v.  Behee,  2  Tex.  Civ.  App.  109,  21  S.  W.  384, 
holding  railroad  list  of  employees  discharged  for  cause  privileged;  malice  essen- 
tial to  recovery  for  false  statement;  Hebner  v.  Great  Northern  R.  Co.  78  Minn. 
292,  79  Am.  St.  Rep.  387,  80  N.  W.  1128,  holding  damages  not  recoverable  for 
privileged  communication  without  proving  actual  malice;  Vial  v.  Larson,  132 
Iowa,  210,  109  N.  W.  1007,  holding  that  where  defendant  honestly  believed 
derogatory  statements  made,  to  be  true,  burden  is  on  plaintiff  to  show  malice. 

Cited  in  footnote  to  Nichols  v.  Eaton.  47  L.  R.  A.  483,  which  holds  communi- 
cation by  a   principal   to  agent  as  to  business  of  agency  not  actionable  unless 
actuated  by  malice. 
Plea    of    privilege,    what    provable    under. 

Cited  in  Cranfill  v.  Hayden,  22  Tex.  Civ.  App.  667,  55  S.  W.  805,  holding  proof 
of  truth  of  alleged  libel  admissible  under  plea  of  privilege. 
Corporation's    liability    tor    malice. 

Cited  in  Emerson,  T.  &  Co.  v.  Skidmore,  7  Tex.  Civ.  App.  646,  25  S.  W.  671, 
holding  corporation  liable  for  exemplary  damages  for  malice  of  agent  represent- 
ing it  in  attachment  proceeding. 

Cited  in  notes    (10  L.  R.  A.   129)    on  corporations  as  persons;    (63   L.  R.  A. 
290,  292,  293 )  on  blacklisting  employees. 
Security   for   costs. 

Cited   in   Bearup   v.   Coffey,   9   N.   M.   502,   55   Pac.   289,   holding   affidavit   of 
financial  disability  takes  place  of  cost-bond;   Posey  v.  Aiken,  17  Tex.  Civ.  App. 
45,   42   S.   W.   368,   holding  tender   of   cost-bond  after   motion   made,   but  before 
dismissal,  sufficient. 
Exemplary  damagres. 

Cited  in  notes  (28  Am.  St.  Rep.  881;  8  Eng.  Rul.  Cas.  378)  on  right  to  puni- 
tive damages;  (59  Am.  St.  Rep.  590,  594)  on  exemplary  damages  against  cor- 
porations. 


665  '  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  287 

4  L.  R.  A.  284,  ATCHISON,  T.  &  S.  F.  R.  CO.  v.  MORGAN,  42  Kan.  23,  16  Am. 

St.  Rep.  471,  21  Pac.  809. 
Fixtures,    what    constitute. 

Cited  in  Button  v.  Ensley,  21  Ind.  App.  49,  69  Am.  St.  Rep.  340,  51  N.  E.  380, 
holding  house  on  blocks,  built  as  permanent  improvement,  fixture ;  McFarlane  v. 
Foley,  27  Ind.  App.  486,  87  Am.  St.  Rep.  264,  60  N.  E.  357,  holding  chandeliers 
put  up  as  permanent  improvement,  fixtures;  \Yinslow  v.  Bromich,  54  Kan.  305, 
45  Am.  St.  Rep.  285,  38  Pac.  275,  holding  wagons  used  to  convey  syrup  from 
place  to  place  in  sugar  factor}',  not  fixtures;  Traders  Bank  v.  First  Nat.  Bank, 
C  Kan.  App.  400,  50  Pac.  1098,  holding  whether  store  furnishings  fixtures,  ques- 
tion of  fact;  Marshall  v.  Bacheldor,  47  Kan.  445,  28  Pac.  168,  holding  character 
of  property  treated  in'  contract  as  personalty  not  affected  by  subsequent  annexa- 
tion; Skinner  v.  Ft.  Wayne,  T.  H.  &  S.  W.  R.  Co.  99  Fed.  468,  holding  railroad 
tracks  remain  personalty  after  extinguishment  of  easement  by  foreclosure  of 
prior  mortgage;  St.  Louis,  K.  &  S.  W.  R.  Co.  v.  Nyce,  61  Kan.  404,  48  L.  R.  A. 
247,  59  Pac.  1040,  holding  railroad  tracks,  bridges,  and  station  not  fixtures 
passing  under  foreclosure  of  prior  mortgage;  Gartland  v.  Hickman,  56  W.  Va. 
85.  67  L.R.A.  700,  49  S.  E.  14,  holding  engines,  tanks  and  pipes  put  on  premises 
by  lessees  of  oil  rights  not  to  pass  to  lessor  on  termination  of  lease  for  non- 
payment of  rental ;  Hereford  v.  Pusch,  8  Ariz.  84,  68  Pac.  547,  holding  that  a 
fence  placed  on  government  land  by  mistake  passes  to  one  subsequently  acquiring 
deed  from  government;  Gasaway  v.  Thomas,  56  Wash.  80,  105  Pac.  168,  on  the 
difficult  application  of  the  rule  of  fixtures  to  any  given  circumstances. 

Cited  in  footnotes  to  Murray  v.  Bender,  63  L.R.A.  783,  which  holds  chairs, 
stage  fixtures,  and  drop  curtains  annexed  to  theater  to  make  possible  the  use  of 
the  building,  fixtures;  Giddings  v.  Freedley,  65  L.R.A.  327,  which  holds  main 
belt  transmitting  power  from  an  engine  so  annexed  to  building  as  to  be  real 
estate,  to  machinery  in  mill,  real  estate. 

Cited  in  notes  (4  L.  R.  A.  674,  5  L.  R.  A.  150,  6  L.  R.  A.  249,  10  L.  R.  A.  723) 
on  \\lmt  are  fixtures;  (66  L.R.A.  42)  on  nature  of  railroad  as  realty  or  person- 
alty. 

])i-iinguished  in  Fernie  v.  Chicago,  R.  I.  &  P.  R.  Co.  9  Kan.  App.  616,  58  Pac. 
492.  holding  rails,  ties,  etc.,  forming  railway  line,  fixtures. 
Improvements   made   on    land   of  another. 

Cited  in  note  (16  L.  R.  A.  807)  on  value  of  improvements  made  by  one  taking 
property  by  eminent  domain  as  element  of  damages. 

4  L.  R.  A.  287,  MELOY  v.  CHICAGO  &  N.  W.  R.  CO.  77  Iowa,  743,'  14  Am.  St. 

Pvep.  325,  42  X.  W.  563. 
Duty  of  railroad  to  employees  as  respects  track  and  roadhed. 

Cited  in  Gordon  v.  Chicago,  R.  I.  &  P.  R.  Co.  129  Iowa,  755,  106  N.  W.  177, 
holding  that  under  the  duty  to  supply  safe  road  and  track  the  jury  may  inquire 
into  the  construction  of  the  road  though  questions  of  engineering  are  involved; 
Haas  v.  St.  Louis  &  Suburban  R.  Co.  Ill  Mo.  App.  713,  90  S.  W.  1155,  holding 
workman  employed  on  tracks  not  a  fellow  servant  with  motorman  on  same  road. 

Cited  in  footnote  to  Smith  v.  Erie  R.  Co.  59  L.  R.  A.  302,  which  holds  company 
bound,  as  to  employees  riding  on  trains,  to  exercise  reasonable  care  to  maintain 
safe  track  and  roadbed. 

Cited  in  notes  (31  L.R.A.  323)  on  railroad  employees  or  officers  as  pas- 
sengers; (16  Am.  St.  Rep.  883)  on  duty  of  railroad  to  employees  as  to  track. 

Distinguished  in  Carlson  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  21  Or.  454.  28- 
Pac.  497,  holding  employee  engaged  in  repairing  track  known  to  be  dilapidated, 
assumes  risks  incident  to  such  condition. 


4  L.R.A.  287]  L.  11.  A.  CASES  AS   AUTHORITIES.  G6G 


Cited  in  footnote  to  Florida  C.  &  P.  R.  Co.  v.  Sullivan,  61  L.  R.  A.  410,  which 
•denies  negligence  of  white  passenger  in  riding  in  car  set  apart  for  negroes. 
^es'liifeiice;   unlawful  speed  of  tr»iit  as. 

Cited  in  Grand  Trunk  R.  Co.  v.  Ives,  144  U.  S.  418,  36  L.  ed.  489,  12  Sup.  Ct. 
Rep.  679,  holding  running  trains  at  greater  speed  than  allowed  by  ordinance 
•circumstance  from  which  negligence  inferable;  Chicago  &  X.  W.  R.  Co.  v.  O'Brien, 
•82  C.  C.  A.  461,  153  Fed.  514,  holding  company  liable  for  death  caused  by 
running  of  train  at  excessive  rate  of  speed  around  a  curve  and  down  a  steep 
grade. 
Evidence  of  otlier  accidents. 

Cited  in  footnote  to  Bemis  v.  Temple,  26  L.  R.  A.  254,  which  upholds  right  to 
show  effect  on  different  horses  of  suspended  flag. 
Relation  of  servant  off  duty. 

Cited  in  note  {12  L.R.A.  (X.S.)   856)  on  existence  of  relationship  where  servant 
•goes  on  master's  premises  at  other  than  hours  of  actual  labor. 
•-Contributory    nejflis'ence    of    railroad    employees. 

Cited  in   footnote  to  Milbourne  v.   Arnold  Electric   P.   Station   Co.   70  L.R.A. 
•600,  which  holds  railroad  employee  not  negligent  per  se  in  taking  exposed  posi- 
tion on  flat  car  unless   risk  of  injury  is  so  great  that  no  person   of   ordinary 
prudence  would  assume  it. 
.Assumption  of  risk. 

Cited  in  Martin  v.  DOS  Moines  Edison  Light  Co.  131  Iowa,  733,  106  X.  W.  359. 
^holding  that  servant  in  making  dangerous  repairs  does  not  assume  risks  arising 
:from  negligence  of  master  unless  shown  to  him  or  possible  of  discovery  by  use 
of  due  diligence;  Kinsel  v.  Xorth  Butte  Min.  Co.  44  Mont.  466,  120  Pac.  797, 
holding  that  miner  timbering  mine  does  not  assume  risk  of  injury  from  collapse 
<due  to  negligent  placing  of  timbers  during  his  absence. 

Cited  in  note  (19  L.R.A.  (X.S.)  346)  on  servant's  assumption  of  risk  from 
^changing  condition  of  working  place  during  progress  of  work. 

-4  L.  R.  A.  291,  STATE  v.  POWELL,  103  X.  C.  424,  14  Am.  St.  Rep.  821,  9  S.  E. 
627. 

Followed  without  special  discussion  in  State  v.  Hill,   114  N.  C.  782,   18  S.  E. 
•971. 
Felonious    intent;    secrecy    not    necessary    element. 

Cited  in  State  v.  Coy,  119  N.  C.  903,  26  S.  E.  120,  holding  felonious  intent  in 
-open  taking  question  for  jury:  State  v.  Bradburn.  104  X.  C.  882,  10  S.  E.  .1  :>•'>. 
holding  secrecy  of  robbery  not  indispensable  element  of  felonious  intent;  State 
v.  Foy,  131  N.  C.  805,  42  S.  E.  934,  holding  that  one  cannot  be  convicted  of  lar- 
ceny when  taking  not  inconsistent  with  honest  intent;  Long  v.  State.  44  Fla. 
140,  32  So.  870,  14  Am.  Crim.  Rep.  453,  on  submission  of  question  of  felonious 
intent  to  the  jury  on  the  evidence  of  a  taking  without  claim  of  right  with 
intent  to  deprive  owner  of  possession,  such  taking  being  open  with  no  intent 
to  conceal. 

Cited  in  footnote  to  State  v.  Xelson,  68  L.R.A.  283,  which  holds  that  felon- 
iously breaking  and  entering  livery  stable  where  one's  horse  is  kept  for  purpose 
of  removing  it  and  depriving  stable  keeper  of  lien  for  food  and  care  may  be 
burglary. 

Cited  in  notes  (52  L.R.A.  139)  on  larceny  of  money  or  property  delivered  by 
mistake;  (21  L.R.A.  (X.S.)  312)  as  to  whether  indictment  involving  felonious 
taking  may  lay  ownership  in  one  in  possession  as  agent,  bailee,  etc. 


667  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  296 

4  L.  R.  A.  294,  MOORE  v.  BARRY,  30  S.  C.  530,  9  S.  E.  589. 
Delegation    of    legislative    powers. 

Cited  in  footnote  to  State  ex  rel.  Baltzell  v.  Stewart,  6  L.  R.  A.  394,  which 
holds  grant  to  drainage  commissioners  of  power  to  determine  what  land  bene- 
fited, not  unlawful  delegation  of  power. 
Taxation. 

Cited  in  notes  (8  L.  R.  A.  369)  on  constitutional  restriction  as  to  valuation, 
equality,  and  uniformity  in  taxation;  (60  L.  R.  A.  239)  on  procedure  for  the 
establishment  of  drains  and  sewers;  (133  Am.  St.  Rep.  939)  as  to  whether  a 
personal  liability  may  be  created  for  an  assessment. 

4  L.  R.  A.  296,  FORDYCE  v.  McCAXTS,  51  Ark.  509,  14  Am.  St.  Rep.  69,  11  S. 

W.   694. 

Second  appeal,  55  Ark.  385,  18  S.  W.  371. 
Damagea   for  death   caused  by  negligence. 

Cited  in  Fordyce  v.  McCants,  55  Ark.  385,  18  S.  W.  371,  holding  on  second 
appeal  father  entitled  to  recover  for  death  of  adult  son  amount  equivalent  to 
son's  usual  contribution  to  support  during  father's  expectancy;  Smith  v.  Chicago, 
M.  &  St.  P.  R.  Co.  6  S.  D.  591,  28  L.  R.  A.  576,  62  N.  W.  967,  holding  only  nom- 
inal damages  recoverable  for  death  of  adult  son,  without  proof  of  pecuniary  loss; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Xeedham,  3  C.  C.  A.  148,  10  U.  S.  App.  339,  52 
Fed.  379,  holding  only  actual  pecuniary  damages  recoverable  by  widow  in  action 
for  husband's  death;  St.  Louis,  M.  &  S.  E.  R.  Co.  v.  Garner,  76  Ark.  557,  89 
S.  W.  550,  holding  father  cannot  recover  for  wrongful  death  of  adult  son  in 
the  absence  of  a  showing  that  son  was  of  financial  or  substantial  assistance  to 
him  or  that  he  had  reasonable  expectation  of  pecuniary  benefit  from  continued 
life  of  son;  Jacksonville  Electric  Co.  v.  Bowden,  54  Fla.  475,  15  L.R.A.  (N.S.) 
457,  45  So.  755  (dissenting  opinion)  on  the  measure  of  damages  recoverable 
for  wrongful  death;  Huff  v.  Peoria  &  E.  R.  Co.  127  111.  App.  250,  holding  evi- 
dence of  an  agreement  on  part  of  deceased  to  reimburse  father  for  expense  of 
education  by  assisting  in  education  of  sisters  admissible  to  show  actual  damage 
to  father;  Young  v.  Beveridge.  81  Xeb.  182,  115  X.  W.  766,  holding  measure  of 
recovery  to  be  present  value  of  husband's  support  during  joint  expectancy  of  life 
of  deceased  and  wife  and  minority  of  child;  Missouri,  K.  &  T.  R.  Co.  v.  Foreman, 
98  C.  C.  A.  281,  174  Fed.  380,  holding  under  statute  that  mother  of  deceased  is  a 
necessary  party  plaintiff  though  she  may  not  have  sustained  any  pecuniary  losa 
by  reason  of  the  death. 

Cited  in  notes  (17  L.R.A.  73)  on  construction  of  state  statutes  giving  cause  of 
action  for  negligently  causing  death;  (8  Eng.  Rul.  Cas.  426)  on  measure  of 
damages  for  death  of  relative. 

Distinguished  in  Warren  &  0.  Valley  R.  Co.  v.  Waldrop,  93  Ark.  139,  123  S. 
\V.  702.  holding  that  instruction  that  damages  should  be  amount  deceased  would 
contribute  to  wife  is  not  erroneous  because  not  stating  during  her  life. 
!{<•••    ui--t:i  .    su  IIX.CM  tii-ii  i    declarations. 

Cited  in  Xational  Masonic  Acci.  Asso.  v.  Shryock,  20  C.  C.  A.  8,  36  U.  S.  App. 
<558,  73  Fed.  778.  holding  declarations  as  to  accident,  two  hours  after,  not  part 
of  res  gestce;  Fidelity  &  C.  Co.  v.  Haines,  49  C.  C.  A.  382,  111  Fed.  340,  holding 
declaration  of  agent  day  after  making  insurance  contract,  not  part  of 'res  gestce. 

Cited   in   note    (16   Am.   St.  Rep.  407)    on  what  constitutes  res  gestae. 
General    law    superseding   prior   special    legislation. 

Cited  in  Davis  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  53  Ark.  125,  7  L.  R.  A.  284,  13 
S.  \V.  801,  holding  general  act  regarding  suits  for  wrongfully  causing  death 
supersedes  act  relating  to  killing  persons  by  trains. 


4  L.R.A.  298]  L.  R.  A.  CASES  AS  AUTHORITIES.  66* 

4  L.  R  A.  298,  STATE  v.  CHICAGO,  M.  &  ST.  P.  R.  CO.  77  Iowa,  442,  42  N.  W, 

365. 
Effect   of  proof  of  similar  crimes,   where   Indictment   Is   for   one  act. 

Cited  in  Palin  v.  State,  38  Neb.  866,  57  N.  W.  743,  holding  proof  of  similar 
distinct  offenses  entitles  accused  to  require  prosecutor  to  elect  upon   which   he 
relies  for  conviction. 
Obstructing-   hinliwnjx;    plea    of   necessity. 

Cited  in  Chicago  &  N.  W.  R.  Co.  v.  Prescott,  23  L.  R.  A.  658,  8  C.  C.  A.  113, 
19  U.  S.  App.  291,  59  Fed.  242,  holding  location  of  depot  no  justification  for  ob- 
struction of  highway  by  trains;  Jenks  v.  Lansing  Lumber  Co.  97  Iowa,  347,  66"- 
N.  W.  231,  holding  abutting  owner  cannot  obstruct  highway  with  cars  and  lum- 
ber to  damage  of  other  owners. 

Cited  in  notes  ( 14  L.  R.  A.  557,  558)  on  obstruction  of  street  or  sidewalk  for 
business  or  building  purposes;  (18  L.  R.  A.  154)  on  liability  of  railroad  company 
for  obstructing  highway  crossing;  (6  L.  R.  A.  161)  on  mandamus  to  compel 
removal  of  obstructions  from  highway;  (16  Am.  St.  Rep.  209)  on  obstruction 
of  street  or  highway;  (34  L.  ed.  U.  S.  355)  on  occupation  of  highway  by  rail- 
roads. 

4  L.  R.  A.  300,  STATE  ex  rel.  McCARTY  v.  NELSON,  41  Minn.  25,  42,  N.  W.  548, 
Recovery  of  compulsory  payments. 

Cited  in  Mearkle  v.  Hennepin  County,  44  Minn.  548,  47  N.  W.  165,  holding 
payment  under  protest,  required  by  unconstitutional  statute  as  condition  prece- 
dent to  administration,  recoverable;  Joannin  v.  Ogilvie,  49  Minn.  567,  16  L.  R. 
A.  378,  32  Am.  St.  Rep.  581,  52  N.  W.  217,  holding  payment  of  unfounded 
mechanic's  lien  to  clear  title  to  obtain  urgent  loan,  recoverable;  \Yells  v.  Adams, 
88  Mo.  App.  226,  holding  payment  of  bonus  to  redeem  real  property,  fraudu- 
lently exacted,  recoverable;  First  Nat.  Bank  v.  Sargeant.  65  Neb.  605,  59  L.  R. 
A.  300,  91  N.  W.  595,  holding  excess  extorted  by  mortgagor  from  one  desiring 
to  redeem  in  order  to  make  advantageous  sale,  recoverable. 

Cited  in  footnotes  to  Behring  v.  Somerville,  49  L.  R.  A.  578,  which  denies 
right  of  mortgagor,  compelled  to  pay  first  assignee,  to  recover  amount  previously 
paid  second  assignee  who  surrendered  mortgage;  Langevin  v.  St.  Paul,  15  L.  R. 
A.  766,  which  holds  agent's  mistaken  belief  that  all  of  lots  jointly  sold  for  taxes 
belonged  to  principal  not  ground  for  recovering  back  any  of  redemption  money; 
Scott  v.  Ford,  68  L.R.A.  469,  which  denies  right  to  recover  back  money  paid  by 
executors  under  mistaken  belief  that  payee  was  entitled  thereto  as  represents 
tive  of  a  deceased  legatee. 

Cited  in  notes  (25  Am.  St.  Rep.  520)  as  to  when  payments  are  voluntary:  (04 
Am.  St.  Rep.  432)  on  recovery  back  of  voluntary  payment. 

Distinguished  in  effect  in   \  ereycken  v.  Vanden  Brooks,   102  Mich.   121,  60  N. 
W.  687,  holding  payment,  under  protest,  of  more  interest  than  legally  demand- 
able  to  prevent  foreclosure,  not  recoverable. 
Illegal  taxes. 

Cited  in  McGee  v.  Hennepin  County,  84  Minn.  473,  88  N.  W.  6,  holding  illegal 
tax  involuntarily  paid,  recoverable;  Scottish  Union  &  Nat.  Ins.  Co.  v.  Herriott, 
109  Iowa,  611,  77  Am.  St.  Rep.  548,  80  N.  W.  665,  holding  illegal  license  tax  paid 
in  order  to  continue  business,  recoverable;  Montgomery  v.  C'owlitz  County,  14 
Wash.  233,  44  Pac.  259,  holding  illegal  tax  paid  under  protest  to  avoid  threatened 
sale,  recoverable;  Cook  County  v.  Fairbanks,  222  111.  591,  78  N.  E.  895,  holding 
that  money  paid  as  fees  to  the  probate  clerk  under  protest  may  be  recovered, 
where  the  conditions  of  the  estate  demanded  immediate  action,  where  the  clerk 


wy  L.  K.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  308 

had  no  authority  to  demand  such  fees;  Oakland  Cemetery  Asso.  v.  Ramsey 
County,  98  Minn.  400,  116  Am.  St.  Rep.  377,  108  N.  W.  857,  holding  that  one  who 
is  compelled  to  pay  taxes  illegally  demanded,  in  order  to  record  his  deed  to  the 
land  may  pay  such  taxes  under  protest  and  recover  them  by  subsequent  action; 
Hazelton  v.  McGroarty,  6  Kulp.  538,  2  Pa.  Dist.  R.  291,  holding  that  a  voluntary 
payment  of  money  under  claim  of  right  without  fraud  and  with  full  knowledge 
•of  the  facts  can  not  be  recovered  back,  unless  there  was  duress  or  compulsion, 
and  mere  protest  will  not  make  it  involuntary  payment. 

Cited  in  footnotes  to  St.  Anthony  &  D.  Elevator  Co.  v.  Soucie,  50  L.  R.  A. 
262,  which  sustains  right  to  recover  illegal  taxes  paid  under  protest  to  prevent 
tax  collector's  sale  of  personal  property  constructively  seized;  Walser  v.  Board 
of  Education,  31  L.  R.  A.  329,  which  denies  right  to  recover  back  school  taxes 
paid  by  mistake  to  district  not  entitled  to  same;  C.  &  J.  Michel  Brewing  Co.  v. 
State,  70  L.R.A.  911,  which  holds  that  requiring  foreign  corporation  to  pay  license 
fee  as  condition  precedent  to  sale  of  products  within  state  or  subject  itself  to 
penalties  supposed  to  be  prescribed  by  statute  not  such  compulsion  as  will  entitle 
it  to  recover  amounts  paid  on  statute  being  held  unconstitutional. 

Questioned  in  State  ex  rel.  Baldwin  v.  Moore.  7  Wash.  175,  34  Pac.  461,  hold- 
ing payment  of  illegal  tax  made  as  choice  of  evils,  voluntary. 

Disapproved  in  Weston  v.  Luce  County,  102  Mich.  533,  61  N.  W.  15,  holding 
illegal  tax  paid  under  protest,  to  effect  sale,  not  recoverable. 
Necessity  of  protest. 

Cited  in  De  Graff  v.  Ramsey  County,  46  Minn.  320,  48  N.  W.  1135,  holding  pay- 
ment made  without  protest  under  unconstitutional  statute,  not  recoverable. 
Mandamus,     tvhen     issnable. 

Cited  in  State  ex  rel.  Soucheray  v.  Krahmer,  92  Minn.  399,  100  N.  W.  105, 
holding  that  mandamus  would  not  lie  to  compel  a  county  auditor  to  certify  all 
taxes  paid,  upon  a  deed,  where  it  appears  that  they  have  not  been,  though  the 
title  has  been  registered. 

Cited  in  footnote  to  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188, 
which  denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum. 

Cited  in  notes  ( 19  Am.  St.  Rep.  95 )  on  mandamus  to  officers. 

Distinguished  in  Lobban  v.  State,  9  Wyo.  391,  64  Pac.  82,  holding  mandamus 
lies  to  compel  issuance  of  receipt  in  full  to  one  paying  all  legal  taxes. 

4  L.  R.  A.  305,  NORTON  v.  BAXTER,  41  Minn.  146,  16  Am.  St.  Rep.  679,  42 

N.  W.  865. 
Tender;    release   of  security. 

Cited  in  Moore  v.  Norman,  43  Minn.  430,  9  L.  R.  A.  56,  19  Am.  St.  Rep.  247, 
45  N.  W.  857,  holding  tender  after  maturity  extinguishes  lien  of  chattel  mort- 
gage, though  not  kept  good;  Hyams  v.  Bamberger,  10  Utah,  17,  36  Pac.  202, 
holding  tender  after  maturity,  before  valid  sale  of  pledged  chattels,  extinguishes 
lien;  Frenzer  v.  Richards.  60  Neb.  134,  82  N.  W.  317,  holding  tender  of  principal 
of  usurious  loan  releases  security;  Starke  v.  Myers,  24  Misc.  580,  53  N.  Y.  Supp. 
650,  holding  tender,  not  kept  good,  releases  security;  Pittsburg  Plate  Glass  Co. 
v.  Leary,  25  S.  D.  263,  31  L.R.A. (N.S.)  759,  126  N.  W.  271,  Ann.  Cas.  1912  B, 
028.  holding  that  tender  of  amount  of  claim  on  which  mechanics'  lien  is  filed 
stops  interest  and  extinguishes  lien. 

4  L.  R.  A.  308,  STATE  v.  MASSE  V,  103  N.  C.  356,  9  S.  E.  632. 
Statutory    construction. 

Cited  in  Leak  v.  Gay,  107  N.  C.  481,  12  S.  E.  312,  holding  amendatory  act 
subject  to  existing  statutory  rule  of  construction;  Randall  v.  Richmond  &  D.  R. 


4  L.R.A.  308]  L.  R.  A.  CASES  AS  AUTHORITIES.  670 

Co.  104  N.  C.  414,  10  S.  E.  691,  holding  words  of  statute  not  having  technical 
meaning  construed  according  to  ordinary  import. 

Cited  in  note  (25  L.  R.  A.  573)  as  to  how  far  statutes  will  be  regarded  as  hav- 
ing abrogated  maxim  that  one  cannot  profit  by  his  own  wrong. 
Repeal  by  implication. 

Cited  in  State  v.  Biggers,  108  N.  C.  764,  12  S.  E.  1024,  holding  statute  not  im- 
pliedly  repealed  by  later  one,  unless  irreconcilably  inconsistent ;  State  v.  Coleyr 
114  N.  C.  883,  19  S.  E.  705,  holding  legislature  may,  by  saving  clause,  retain  pro- 
visions of  existing  law  as  to  previous  crimes;  State  v.  Perkins,  141  X.  C.  798r 
9  L.R.A.(N.S.)  167,  53  S.  E.  735,  holding  that  where  a  later  statute  is  clearly  in- 
tended by  legislature  to  be  prospective  in  operation  it  will  not  be  construed  to 
repeal  a  prior  statute  on  same  subject;  State  v.  Parker,  139  X.  C.  587.  51  S.  E. 
1028,  holding  statute  prohibiting  sale  of  "any  spirituous  vinous  malt  or  other 
intoxicating  liquors  or  any  drink  containing  alcohol"  not  repealed  by  statute 
prohibiting  sale  of  spirituous  vinous  or  malt  liquors  or  "other  intoxicating 
drinks"  and  repealing  conflicting  laws;  State  v.  Cantwell,  142  X.  C.  610,  8 
L.R.A.(X.S.)  505,  55  S.  E.  820,  9  A.  &  E.  Ann.  Cas.  141  (dissenting  opinion), 
on  repeal  by  implication  only  in  case  of  irreconcilability. 
Effect  of  repeal  of  criminal  statute. 

Cited  in  State  v.  Ramsour,  113  N.  C.  644,  18  S.  E.  707,  holding  one  cannot  be 
punished  for  violation  of  law  subsequently  repealed. 

4  L.  R.  A.  313,  STOKES  v:  ANDERSON,  118  Ind.  533,  21  N.  E.  331. 
Agreement   to   pay   money   to   wife,   after  separation. 

Cited  in  Henderson  v.  Henderson,  37  Or.  150,  48  L.  R.  A.  769,  82  Am.  St.  Rep. 
741,  60  Pac.  597,  holding  contract  to  pay  certain  sums  to  wife,  in  contemplation 
of  divorce  for  husband's  misconduct,  valid. 
Delivery,    what    constitutes. 

Cited  in  Merritt  v.  Temple,  155  Ind.  500,  58  N.  E.  699,  holding  delivery  to 
third  person  of  mortgage  to  be  delivered  to  mortgagee,  sufficient;  Anderson  v. 
Anderson,  126  Ind.  66,  24  N.  E.  1036.  holding  deeds  kept  in  box  by  grantor  not 
delivered;  Osborne  v.  Eslinger,  155  Ind.  356,  80  Am.  St.  Rep.  240,  58  X.  E.  439, 
holding  delivery  of  package  containing  deeds  to  third  person  for  safe  keeping,  to 
be  handed  to  grantor's  executor,  insufficient;  Erickson  v.  Kelly,  9  N.  D.  16,  81 
N.  W.  77,  holding  delivery  of  assignment  of  land  contract  to  attorney  for  both 
parties  without  intention  of  parting  with  control,  insufficient;  Phoenix  Ins.  Co. 
v.  Overman,  21  Ind.  App.  519,  52  X.  E.  771,  holding  chattel  mortgage,  recorded 
but  never  delivered,  of  which  mortgagee  had  no  knowledge,  invalid:  Godman  v. 
Henby,  37  Ind.  App.  4,  76  X.  E.  423,  holding  that  there  is  no  delivery  of  note 
where  maker  locked  it  with  the  mortgage  in  a  drawer  pending  consultation  with 
attorney  and  payee  unlocked  drawer  and  took  note  and  recorded  mortgage  which 
had  been  acknowledged  by  maker  before  notary. 

Cited  in  footnotes  to  Cook  v.  Patrick,  11  L.  R.  A.  573,  which  holds  delivery  of 
deed  to  third  person  paying  for  property,  sufficient  delivery  to  grantees;  Strough 
v.  Wilder,  7  L.  R.  A.  555,  which  holds  possession  prima  facie  evidence  of  delivery 
of  deed. 

Cited  in  notes   (13  L.R.A.  677)   on  essentials  to  validity  of  deed;    (53  Am.  St. 
Rep.  551)   on  what  is  a  delivery  of  a  deed. 
Agreements  to   obtain    divorce. 

Cited  in  Wilson  v.  Fahnestock,  44  Ind.  App.  43,  86  X.  E.  1037,  holding  void, 
contract  relating  to  alimony  made  pending  suit  for  divorce;  Barngrover  v.  Petti- 
grew,  128  Iowa,  535,  2  L.R.A.  (X.S.)  262,  111  Am.  St.  Rep.  206,  104  N.  W.  904, 


671  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  321 

holding  agreement  by  husband  to  pay  attorney  and  detective  for  obtaining  proof 
of  wife's  infidelity  and  procuring  a  divorce  against  public  policy  and  void;  Shee- 
han  v.  Sheehan,  77  X.  J.  Eq.  414.  140  Am."  St.  Rep.  566,  77  Atl.  1063,  holding 
void,  agreement  by  husband  to  make  no  defense  to  action  for  divorce  to  be 
brought  by  wife. 

Cited  in  note  (12  L.R.A.  (X.S.)  852)  on  validity  of  agreement  between  hus- 
band and  wife  renouncing  marital  rights. 

4  L.  R.  A.  321,  COLLETT  v.  VAXDERBURGH  COUNTY,  119  Ind.  27,  21  N.  E. 

320. 
Adverse    possession. 

Cited  in  Webb  v.  Rhodes,  28  Ind.  App.  397,  61  X.  E.  73r>.  holding  occupancy 
of  enclosure  including  disputed  strip  for  twenty  years  gives  title  by  adverse  pos- 
session; Worthier  v.  Burbanks,  14(5  Ind.  543,  45  X.  E.  779,  holding  actual  occu- 
pancy not  necessary  to  acquire  unproductive  lands  by  adverse  possession ;  Dyer 
v.  Eldridge,  136  Ind.  657,  36  X.  E.  522;  Herif  v.  Griggs,  121  Ind.  475,  23  N.  EL 
279;  Bowen  v.  Swander,  121  Ind.  167,  22  X.  E.  725. —  holding  title  acquirable  by 
adverse  possession  without  color  of  title;  May  v.  Dobbins.  166  Ind.  334.  77  X. 
E.  353,  holding  color  of  title  not  necessary  to  constitute  adverse  possession;  Hel- 
ton v.  Fastnow,  33  Ind.  App.  293,  71  X.  E.  230,  holding  possession  of  land  on 
defendant's  side  of  dividing  fence  for  upwards  of  40  years,  such  fence  for  that 
time  being  recogni/ed  by  all  parties  as  dividing  line  to  the  undisturbed  posses- 
sion of  each  to  the  land  on  his  own  side  constitutes  adverse  possession  of  land  in 
question  by  defendant:  Indianapolis  Coal  Traction  Co.  v.  Dalton,  43  Ind.  App. 
336.  87  X.  E.  552.  holding  adverse  possession  of  premises  under  color  of  title 
by  appellee  and  grantor  for  over  20  years  passes  title  though  deed  was  defective 
in  description;  Tolley  v.  Thomas,  46  Ind.  App.  565,  93  X.  E.  181,  holding  that 
answer  shows  adverse  possession,  which  alleges  receipt  of  sheriff's  deed,  its  record, 
adverse  possession  for  more  than  twenty  years,  payment  of  taxes,  rental,  and 
lack  of  knowledge  of  adverse  claimants. 

Cited  in  footnote  to  Swan  v.  Munch,  35  L.  R.  A.  743,  which  holds  title  by  pre- 
scription obtainable  by  wrongful  entry  under  claim  of  right. 

Cited  in  notes  (6  L.  R.  A.  833)  on  adverse  possession;  (10  L.  R.  A.  388)  on 
title  under  adverse  possession:  (15  L.R.A.  (X.S.)  1180,  1189,  1207,  1258)  on 
necessity  of  color  of  title,  not  expressly  made  a  condition  by  statute,  in  adverse 
possession;  (14  Am.  St.  Rep.  130)  on  what  constitutes  adverse  possession;  (76 
Am.  St.  Rep.  494;  87  Am.  St.  Rep.  781)  on  right  to  acquire  title  by  adverse 
possession  to  lands  devoted  to  public  use. 
Public  easement,  abandonment  of. 

Cited  in  Freedom  v.  Xorris,  128  Ind.  383,  27  X.  E.  869,  holding  nonuser  of 
easement  of  access  to  river,  for  thirty  years,  abandonment;  Xeitzel  v.  Spokane 
International  R.  Co.  65  Wash.  109,  36  L.R.A. (X.S.)  527,  117  Pac.  864,  holding 
right  of  way  abandoned  where  railroad  never  used  land,  but  leased  it  to  private 
corporation. 
Title  to  caiinl  lands. 

Cited  in  Indianapolis  Water  Co.  v.   Kingan,  155  Ind.  481,  58  X.  E.  715,  and 
Peoria  &  E.  R.  Co.  v.  Attica,  C.  &  S.  R.  Co.  154  Ind.  224.  .'Hi  X.   K.  210,  holding 
purchasers  of  Wabash  &  Erie  canal  acquired  fee. 
Prescription. 

Cited  in  Hall  v.  Breyfogle,  162  Ind.  500,  70  X.  E.  883,  holding  that  title  by 
prescription  cannot  be  obtained  to  land  dedicated  to  public  for  use  as  streets 
and  alleys  through  negligence  of  municipal  officers  in  appropriating  it  to  use 
according  to  plot:  Matthews  v.  Seaboard  Air  Line  R.  Co.  67  S.  C.  505,  65 


4  L.R.A.  321]  L.  R.  A.  CASES  AS  AUTHORITIES.  672 

L.K.A.  290,  46  S.  E.  335,  holding  that  a  right  of  way  cannot  be  procured  by 
prescriptive  use  by  pedestrians  over  railway  right  of  way,  such  users  being  merely 
licensees. 

Cited  in  note  (61  L.  R.  A.  877)  on  construction  and  operation  of  roads  as  to 
prescription. 

4  L.  R.  A.  325,  CHOPE  v.  EUREKA,  78  Cal.  588,  12  Am.  St.  Rep.  113,  21  Pac. 

364. 
Municipal   corporations:    liability   for  acts   of   officers. 

Cited  in  Doeg  v.  Cook,  126  Cal.  216,  77  Am.  St.  Rep.  171,  58  Pac.  707,  holding 
corporation  not  liable  for  misfeasance,  malfeasance,  or  nonfeasance  of  officers; 
Arnold  v.  San  Jose,  81  Cal.  619,  22  Pac.  877,  holding  municipal  corporation  not 
liable  for  negligence  of  its  officers  in  leaving  excavation  in  street  unguarded; 
Sievers  v.  San  Francisco,  115  Cal.  655,  56  Am.  St.  Rep.  153,  47  Pac.  687,  holding 
municipal  corporation  not  liable  for  injury  due  to  increase  of  street  grade  by 
error  city  engineer;  Collier  v.  Ft.  Smith,  73  Ark.  450,  68  L.R.A.  238,  84  S.  W. 
480,  holding  city  not  liable  for  injury  from  negligence  of  servants  in  failing  to 
display  danger  signals  and  signs  at  a  place  where  street  being  repaired  was 
barricaded;  Ukiah  City  v.  Ukiah  Water  &  Improv.  Co.  142  Cal.  182,  64  L.R.A. 
236,  100  Am.  St.  Rep.  107,  75  Pac.  773,  on  the  rule  of  nonliability  of  municipality 
for  negligence  of  officers  and  employees;  Davoust  v.  Alameda,  149  Cal.  70,  5 
L.R.A.  (N.S.)  538,  84  Pac.  760,  9  A.  &  E.  Ann.  Cas.  847,  holding  municipal 
operation  of  light  plant  not  a  governmental  function  and  that  liability  attaches 
for  injury  caused  by  negligence  of  employees  therein ;  Healdsburg  Electric  Light 
&  P.  Co.  v.  Healdsburg,  5  Cal.  App.  561,  90  Pac.  955,  holding  city  not  liable 
for  destruction  of  private  property  by  wrongful  act  of  its  agents  without  the 
scope  of  their  authority;  Schindler  v.  Young,  13  Cal.  App.  21,  108  Pac.  733,  on  lia- 
bility of  city  for  damages  to  one  injured  in  consequence  of  defective  street;  Ludlow 
v.  Fargo,  3  N.  D.  488,  57  N.  W.  506,  holding  general  rule  to  be  that  a  municipal 
corporation  is  bound  to  use  due  care  in  the  maintenance  of  a  highway  and  is 
under  same  rule  of  negligence  as  private  persons  with  respect  to  maintenance, 
free  from  obstructions,  of  such  highway;  Carson  v.  Genesee,  9  Idaho,  251,  108 
Am.  St.  Rep.  127,  74  Pac.  862,  holding  municipal  corporations  having  statutory 
control  over  streets  and  alleys  are  liable  for  injury  caused  by  negligent  mainte- 
nance of  such  streets;  Sels  v.  Greene,  81  Fed.  556.  holding  a  reclamation  dis- 
trict being  a  quasi  public  corporation  in  California  not  liable  for  negligence 
in  performance  of  its  duties,  or  for  a  nuisance. 

Cited  in  footnotes  to  Burns  v.  Bradford,  11  L.  R.  A.  726,  which  holds  city 
not  liable  for  injury  due  to  slight  deviation  of  sidewalk  from  original  level; 
Potter  v.  Jones,  12  L.  R.  A.  160,  which  holds  city  not  liable  for  negligence  in 
blasting  for  schoolhouse;  Curran  v.  Boston,  8  L.  R.  A.  243,  which  holds  city  not 
liable  for  negligence  of  workhouse  officers;  Snider  v.  St.  Paul,  18  L.  R.  A.  151, 
which  holds  city  not  liable  for  negligence  of  agents  in  providing  and  maintaining 
city  hall;  Childrey  v.  Huntington,  11  L.  R.  A.  313,  which  holds  city  not  liable 
for  injury  to  policeman  while  struggling  with  person  under  arrest  by  catching 
foot  in  hole  not  dangerous  to  persons  walking;  South  Bend  v.  Turner,  54  L.  R. 
A.  396,  which  holds  city  liable  for  child  falling  into  manhole  in  sewer  left  un- 
covered for  several  weeks  near  pile  of  sand  played  in  by  children ;  Culver  v. 
Streator,  6  L.  R.  A.  270,  which  holds  city  liable  for  negligence  of  employee 
enforcing  ordinance  against  unmuzzled  dogs  running  at  large;  Shelby  v.  Clagett, 

5  L.  R.  A.  606,  which  holds  exhaustion  of  corporate  funds  will  not  relieve  from 
liability  for   injury   by   defective   sidewalk;    Wilson  v.   Mitchell,   65   L.R.A.    158, 
which  holds  that  municipality  cannot  ratify  act  of  waterworks  superintendent 


673  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  331 

wrongfully   connecting  well   with   city   water  mains  so  as  to  become   liable   for 
water  taken  from  the  well. 

Cited  in  notes  (9  L.  R.  A.  209,  210)  on  liability  of  municipal  corporations  for 
acts  or  omissions  of  officers  or  agents;  (10  L.  R.  A.  737)  on  liability  of  munici- 
pal corporation  for  neglect  to  keep  streets  and  sidewalks  in  safe  condition;  (5 
L.  R.  A.  253)  on  liability  of  municipal  corporations  for  injuries  from  defective 
streets,  bridges,  etc.;  (30  Am.  St.  Rep.  384)  on  liability  of  cities  for  negligence 
and  other  misconduct  of  officers  and  agents;  (103  Am.  St.  Rep.  261,  262)  on 
municipal  liability  to  persons  injured  by  defects  in,  or  want  of  repair  of, 
streets;  (108  Am.  St.  Rep.  151,  152)  as  to  what  municipal  corporations  are 
answerable  for  injuries  due  to  defects  in  streets  and  other  public  places;  (1 
Eng.  Rul.  Cas.  622)  on  liability  of  municipalities  for  injuries  from  negligent  fail- 
ure to  discharge  duties. 
Contributory  negligence. 

Cited  in  note   (12  L.  R.  A.  280)   on  contributory  negligence  must  be  proximate 
cause  of  injury  to  constitute  defense. 
Elements    of    damage. 

Cited  in  note  (8  L.  R.  A.  765)  on  mental  anguish  as  element  of  damages  in 
case  of  personal  injury. 

4  L.  R.  A.  328,  CUTLER  v.  AMERICAN  EXCH.  NAT.  BANK,  113  N.  Y.  593, 

21  N.  E.  710. 
Banking Depositary   trustee   of  special   deposit. 

Cited  in  American  Exch.  Nat.  Bank  v.  Loretta  Gold  &  S.  Min.  Co.  165  111. 
110,  56  Am.  St.  Rep.  236,  46  N.  E.  202,  holding  bank  cannot  apply  on  correspond- 
ent's  account  deposit  for  transmission  for  designated  beneficiary;  Arnot  v.  Bing- 
ham,  55  Hun,  557,  9  N.  Y.  Supp.  68,  holding  avails  of  note  deposited  for  collec- 
tion recoverable  from  insolvent  bank;  Goshorn  v.  People's  Nat.  Bank,  32  Ind. 
App.  430,  102  Am.  St.  Rep.  248,  69  N.  E.  185,  holding  the  drawing  of  a  check 
on  bank  and  handing  it  to  cashier  to  deposit  with  a  trust  company,  the  cashier 
instead  of  turning  it  back  into  cash  to  cover  embezzlement  is  not  payment  of 
deposit;  People  ex  rel.  Zotti  v.  Flynn,  135  App.  Div.  281,  120  N.  Y.  Supp.  511, 
holding  that  where  steamship  ticket  agent  receives  money  to  transmit  to  foreign 
country  he  does  so  in  a  fiduciary  capacity  and  a  deposit  of  same  in  his  own 
name  is  a  conversion  amounting  to  larceny  under  statute. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
-acceptance  of  check  necessary  to  give  right  of  action  against  bank. 

Cited  in  notes  (8  L.R.A.  45)  on  liability  of  agent  of  collecting  bank;  (21 
L.R.A.  (N.S.)  816)  on  duty  of  bank  as  to  payment  of  money  held  as  bailee; 
(22  Am.  St.  Rep.  876)  on  bank  deposits;  (86  Am.  St.  Rep.  778.  779)  on  title  ot 
bank  to  money  deposited  with  or  collected  by  it. 

4  L.  R.  A.  331,  ROOT  v.  LONG  ISLAND  R.  CO.  114  N.  Y.  300,  11  Am.  St.  Rep. 

643,  21  N.  E.  403. 
Carriers;    discrimination,   -when   justified. 

Cited  in  Lough  v.  Outerbridge,  143  N.  Y.  278,  25  L.  R.  A.  677,  42  Am.  St.  Rep. 
712,  38  N.  E.  292.  holding  carrier  may  give  reduced  rates  to  customers  agreeing 
to  give  all  their  business:  Interstate  Commerce  Commission  v.  Baltimore  &  O. 
R.  Co.  43  Fed.  55,  holding  party  rates  offered  to  public  generally  lawful ;  Cleve- 
land, C.  C.  &  I.  R.  Co.  v.  Closser,  126  Ind.  353,  9  L.  R.  A.  757,  22  Am.  St.  Rep. 
593,  26  N.  E.  159,  holding  rebate  to  shipper  not  illegal  where  discrimination  19 
not  unjust  or  oppressive;  Western  U.  Teleg.  Co.  v.  Call  Pub.  Co.  44  Neb.  335, 
27  L.  R.  A.  625,  48  Am.  St.  Rep.  729,  62  N.  W.  506,  holding  difference  in  condi- 
L.R.A.  Au.  Vol.  L— 43. 


4  L.R.A.  328]  L.  R.  A.  CASES  AS  AUTHORITIES.  674 

tions  affecting  service  justifies  discrimination  in  rates;  Kidder  v.  Fitchburg  R. 
Co.  165  Mass.  400,  43  N.  E.  115,  holding  persons  doing  express  business  entitled  to 
equal  accommodations  on  trains;  Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Wilson, 
132  Ind.  526,  18  L.  R.  A.  109,  32  N.  E.  311,  holding  railroad  cannot  discriminate 
between  shippers  of  same  goods  from  same  points  in  full  cars;  Strough  v.  New 
York  C.  &  H.  R.  R.  Co.  92  App.  Div.  585,  87  N.  Y.  Supp.  30,  holding  question 
whether  carrier  unreasonably  neglected  to  provide  sufficient  number  of  cars  for 
freight  properly  submitted  to  jury;  Fairford  Lumber  Co.  v.  Tombigbee  Valley 
R.  Co.  165  Ala.  285,  51  So.  770,  holding  sufficient,  complaint  for  overcharge 
of  freight,  alleging  extortion  of  excessive  rate  and  compulsion  to  pay  such 
rate  to  have  freight  moved;  New  York  Teleph.  Co.  v.  Siegel-Cooper  Co.  202  N. 
Y.  508,  36  L.R.A.(N.S.)  563,  96  N.  E.  109,  Affirming  137  App.  Div.  160,  121  X. 
Y.  Supp.  1033,  holding  that  telephone  company  does  not  make  unjust  discrim- 
ination by  furnishing  service  to  municipalities,  charitable  institutions  and  clergy- 
men at  discount;  Wright  v.  Glen  Teleph.  Co.  112  App.  Div.  746,  99  X.  Y.  Supp. 
85,  holding  a  refusal  to  supply  telephone  service  to  an  applicant  at  rates  charged 
others  making  same  use  and  a  demand  of  an  unusual  rate,  constitutes  unjust  dis- 
crimination; State  v.  Central  Vermont  R.  Co.  81  Vt.  469,  130  Am.  St.  Rep.  1065, 
71  Atl.  194,  holding  a  difference  in  charge  of  50  cents  per  ton  for  transportation 
of  coal  against  the  complainant  not  an  unjust  discrimination  where  the  regular 
charge  as  paid  by  complainant  is  reasonable  and  annotation  cited  to  same  point; 
Steinman  v.  Edison  Electric  Illuminating  Co.  24  Lane.  L.  Rev.  336,  17  Pa.  Dist. 
R.  463,  holding  that  in  case  of  discrimination  the  jury  is  not  bound  to  find  that 
it  is  unjust. 

Annotation  cited  in  Missouri  K.  &  T.  R.  Co.  v.  New  Era  Mill  Co.  79  Kan.  440, 
100  Pac.  273,  on  the  law  in  general  on  lawful  and  just  discrimination  by  carriers 
against  localities  and  individuals. 

Cited  in  notes   (9  L.R.A.)   756)   on  state  power  to  regulate  freights  and  fares; 
(22  Am.  St.  Rep.  611)  on  carrier's  right  to  discriminate;    (5  Eng.  Rul.  Cas.  378, 
380)  on  unjust  discriminations  by  carriers. 
Agreement    for   rebate. 

Cited  in  Parks  v.  Jacob  Dold  Packing  Co.  6  Misc.  572,  27  N.  Y.  Supp.  289, 
holding  contract  by  shipper  for  rebate  from  carriers  illegal. 

Cited  in  footnotes  to  Fitzgerald  v.  Grand  Trunk  R.  Co.  13  L.R.A.  70,  which 
holds  agreement  for  rebate  to  one  shipper  illegal;  Laurel  Cotton  Mills  v.  Gulf 
&  S.  I.  R.  Co.  66  L.R.A.  453,  which  holds  milling  in  transit  agreement  between 
manufacturer  and  carrier  by  which  former  is  to  be  credited  on  freight  bills  for 
manufactured  goods  shipped  freight  paid  on  raw  materials  shipped  to  mill  not 
prohibited  rebate. 

Cited  in  note    (26  L.R.A.  (N.S.)    552)    on  right  of  carrier  to  grant  rebate  or 
allowance  for  use  of  shipper's  tracks. 
Nonperformance    of    contract. 

Distinguished  in  Indian  Mountain  Jellico  Coal  Co.  v.  Asheville  Ice  &  Coal  Co. 
134  N.  C.  583,  47  S.  E.  116,  holding  seller  not  excused  from  absolute  contract  to 
deliver  certain  quantity  of  coal,  except  as  specified  in  contract. 

4  L.  R.  A.  333,  DOBBIN  v.  CORD1NER,  41  Minn.  165,  16  Am.  St.  Rep.  683,  42 

N.  W.  870. 
What   constitutes  an   estoppel. 

Cited  in  Esty  v.  Cummings,  80  Minn.  519,  83  N.  W.  420,  holding  grantor  es- 
topped to  assert  contract  of  defeasance  against  lender  of  money  relying  on  appear- 
ance of  title;  St.  Louis  &  S.  F.  R.  Co.  v.  Foltz.  52  Fed.  631,  holding  married 
woman  retaining  award  estopped  to  assert  illegality  of  condemnation  of  her 


675  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  330 

separate  property;  Knight  v.  Schwandt,  07  Minn.  73,  69  N.  W.  626,  holding  mar- 
ried woman  estopped  by  void  deed  from  acquiring  title;  Laythe  v.  Minnesota 
Loan  &  Invest.  Co.  101  Minn.  155,  112  X.  W.  65,  holding  that  where  a  married 
daughter  transferred  the  land  to  her  mother,  without  her  husband  joining  in 
the  deed,  a  court  will  not  cancel  the  deed,  where  it  appears  that  the  legal  title 
should  have  been  in  the  mother. 

Cited  in  footnotes  to  Wilder  v.  Wilder,  9  L.  R.  A.  97,  which  holds  married 
woman  estopped  to  claim  vendor's  lien  by  representing  that  one  loaning  to  vendee 
should  have  first  mortgage;  O'Connor  v.  Clark,  29  L.  R.  A.  607,  which  holds  one 
permitting  another  to  have  name  and  occupation  painted  on  wagon  estopped  to 
assert  title  as  against  innocent  purchaser;  Grice  v.  Woodworth,  69  L.R.A.  584r 
which  holds  married  woman  estopped  to  set  up  invalidity  of  contract  by  her 
husband  and  herself  to  sell  homestead  for  failure  to  comply  with  certain  con- 
ditions after  purchaser  has  paid  purchase  price,  taken  possession,  and  made 
valuable  improvements. 

Cited  in  notes    (4  L.R.A.   783)    on  application  of  rule  of  estoppel  to  married 
women;    (7  L.R.A.  641)   on  wife's  capacity  to  contract;    (20  Am.  St.  Rep.  943; 
57  Am.  St.  Rep.  171,  172,  179)   on  estoppel  of  married  women. 
Imperfectly  attested   conveyances;    validity. 

Cited  in  Lydiard  v.  Chute,  45  Minn.  279,  47  N.  W.  967,  holding  defectively 
acknowledged  deed  valid  between  parties;  Roberts  v.  Nelson,  65  Minn.  242,  68 
X.  W.  14,  holding  lease  subscribed  by  one  witness  valid. 

4  L.  R.  A.  336,  RAINSBURG  v.  FYAN,  127  Pa.  74,  17  Atl.  678. 
Municipal  indebtedness. 

Cited  in  Safe  Deposit  Bank  v.  Schuylkill  County,  190  Pa.  191,  42  Atl.  539, 
raising  without  deciding  question  whether  failure  to  file  statement  as  to  in- 
debtedness, etc.,  invalidates  county's  note;  Wade  v.  Oakmont,  165  Pa.  484,  30 
Atl.  959,  holding  where  new  and  old  indebtedness  are  less  than  2  per  cent  of 
assessed  valuation,  statement  need  not  be  filed;  Re  Hempfield  Twp.  57  Pittsb. 
L.  J.  N.  S.  243,  36  Pa.  Co.  Ct.  545,  11  Del.  Co.  Ct.  Rep.  203,  holding  notwith- 
standing statute  an  advance  of  money  to  county  board  by  one  of  members  to 
pay  for  machinery  may  be  recovered;  Bloomsburg  Land  Improv.  Co.  v.  Blooms- 
burg,  215  Pa.  460,  64  Atl.  602,  31  Pa,  Co.  Ct.  616,  holding  no  recovery  of  rent 
may  be  had  for  lease  of  a  public  amusement  park  to  a  borough  such  borough 
maintaining  park  as  source  of  reveneue;  Long  v.  Lemoyne,  222  Pa.  318,  21  L.R.A. 
(X.S.)  477,  71  Atl.  211,  holding  that  money  loaned  to  a  Iborough  under  an  invalid 
resolution  may  be  recovered  in  an  action  for  money  had  and  received  though 
the  note  given  is  void. 

Cited  in  footnote  to  McBean  v.  Fresno,  31  L.  R.  A.  794,  which  holds  limitation 
of  city  indebtedness  not  violated  by  contract  to  pay  annual  sum  for  term  of  years, 
if  annual  sum  within  limit. 

Cited  in  note  (7  L.  R.  A.  760)  on  power  of  municipalities  to  borrow  money. 
Bonn  fide  holders  of  municipal  bonds. 

Cited  in  footnotes  to  Wilkes  County  v.  Call,  44  L.  R.  A.  252.  which  denies 
possibility  of  there  being  bona  fide  holder  of  county  bonds  issued  under  unconsti- 
tutional statute;  Flagg  v.  School  Dist.  No.  70,  25  L.  R.  A.  363,  which  denies 
right  to  question,  as  against  bona  fide  purchaser,  consideration  of  bonds  issued 
to  pay  audited  claims. 

Cited  in  note  (51  Am.  St.  Rep.  834,  861)  on  municipal  bonds  in  hands  of  bona 
fide  holders. 


4  L.K.A.  339]  L.  R.  A.  CASES  AS  AUTHOIUT1ES.  676 

4  L.  R.  A.  339,   MANNING  v.  FRENCH,   14!)  M:iss.  391,  21  N.  E.  945. 

Appeal  dismissed  in  133  U.  S.  186,  33  L.  ed.  582,  10  Sup.  Ct.  Rep.  258,  for  want 
of  jurisdiction. 
<'o nrls:    inherent    powers. 

Cited  in  Re  Ricker,  G6  N.  H.  211,  24  L.  R.  A.  741,  29  Atl.  559,  holding  power 
to  admit  or  remove  attorneys  inherent  in  court. 

Cited  in  notes  (13  L.R.A.  259)  on  judges  of  court  of  commissioners  of  Alabama 
claims;   (15  Eng.  Rul.  Cas.  51)  on  civil  liability  of  judges. 
HiiilH    of  disbarred   attorney   to  practice. 

Cited  in  note  (24  L.R.A.  (N.S. )  757)  on  right  of  disbarred  or  suspended  attor- 
ney or  unlicensed  person  to  transact  legal  business  for  another. 

4  L.  R.  A.  343,  NATIONAL  EXCH.  BANK  v.  GAY,  57  Conn.  224,  17  Atl.  555. 
Guaranty,   construction   of. 

Cited  in  Denniston  v.  Schaal,  5  Pa.  Super.  Ct.  636,  41  W.  N.  C.  319,  holding 
intention  of  parties  gathered  from  accompanying  circumstances  governs  construc- 
tion of  guaranty;  Gay  v.  Ward,  67  Conn.  153,  32  L.  R.  A.  819,  34  Atl.  1025, 
holding  guarantor's  estate  not  liable  for  renewals  or  advancements  made  after 
and  with  knowledge  of  his  death. 

Cited  in  footnotes  to  Staver  &  Walker  v.  Locke,  17  L.  R.  A.  652,  which  holds 
payment  of  notes  taken  by  agent  for  goods  sold  not  covered  by  guaranty  of  full 
performance  of  agent's  engagements;  Laclnnan  v.  Block,  28  L.  R.  A.  255,  which 
holds  surety  not  discharged  by  creditor's  failure  to  disclose  debtor's  previous 
embezzlement;  Blyth  v.  Pinkerton,  57  L.  R.  A.  468,  which  holds  guaranty  of  de- 
tective's salary  and  expenses  in  working  up  murder  case  ceases  on  conviction  of 
suspect  and  settlement  of  bill. 

Cited  in  notes  (4  L.  R.  A.  268,  6  L.  R.  A.  383,  8  L.  R.  A.  381)  on  construction 
of  contract  of  guaranty;  (8  L.R.A.  382)  on  continuing  guaranty;  (16  L.R.A. (N.S.) 
775)  as  to  when  guaranty  of  commercial  paper  covers  renewals;  (39  L.R.A. (N.S. ) 
735)  as  to  when  a  guaranty  is  continuing. 

Distinguished  in  Home  Sav.  Bank  v.  Hosie,  119  Mich.  127,  77  N.  W.  625,  hold- 
ing bond  to  secure  loans  during  ensuing  year  continuing  guaranty  binding  estate 
of  obligor  dying  within  year;  Schoonover  v.  Osborne,  117  Iowa,  432,  90  X.  W. 
844,  holding  act  of  charging  advancements  and  crediting  payments  as  one  con- 
tinuous account  not  affected  by  secret  intentions  to  apply  payments  otherwise. 
Necessity  of  notice  of  acceptance. 

Cited  in  footnotes  to  German  Sav.  Bank  v.  Drake  Roofing  Co.  51  L.  R.  A.  758, 
which  holds  notice  of  acceptance  necessary  to  bind  guarantor;  Nading  v.  Mc- 
Gregor, 6  L.  R.  A.  686,  which  holds  notice  unnecessary  to  one  agreeing  "guar- 
antee to  pay  for"  any  timber  of  certain  class;  Wright  v.  Griffith,  6  L.  R.  A.  639, 
which  holds  unnecessary  notice  of  acceptance  of  guaranty  given  after  refusal  of 
•credit;  Cowan,  M.  &  Co.  v.  Roberts,  65  L.R.A.  729,  which  holds  notice  of  accept- 
ance not  necessary  to  bind  one  guaranteeing  debt  with  provision  that  guaranty 
shall  remain  in  force  until  full  payment  or  discharge  in  writing. 
Obligor's  direct  interest  affecting  liability. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Keokuk  &  H.  Bridge  Co.  46  C. 
(C.  A.  645,  107  Fed.  788,  holding  railroads  using  bridge  agreeing  to  make  up 
deficiencies  in  tolls  not  discharged  by  bridge  company's  departure  from  contract. 
^Vational  banks Extension  of  corporate  existence. 

Cited  in  First  Presby.  Church  v.  National  State  Bank,  57  N.  J.  L.  31,  29  Atl. 
320,  holding  extension  of  existence  of  national  bank  does  not  affect  its  identity; 
C.  Lamb  &  Sons  v.  Dobson,  117  Iowa,  128,  90  N.  W.  607,  holding  that  life  of 


677  L.  R.  A.  GASES  AS  AUTHORITIES.  [4  L.R.A.  353 

corporation    may   be   prolonged   by   amendment   to   articles    in    compliance    with 

statute. 

Bank's    possession    of    check. 

Cited  in  footnote  to  Pickle  v.  People's  Nat.  Bank,  7  L.  R.  A.  93,  which  holds 
possession  of  check  by  bank  raises  no  presumption  of  payment  to  payee. 

4  L.  R.  A.  348,  PHINNEY  v.  PHINNEY,  81  Me.  450,  10  Am.  St.  Rep.  266,  17 

Atl.  405. 
Constitutional    law Impairment    of    contracts. 

Cited  in  Allen  v.  Allen,  95  Cal.  197,  205,  16  L.  R.  A.  652,  655,  30  Pac.  213, 
holding  time  for  redemption  from  mortgage  cannot  be  extended  by  subsequent 
statute;  Yeatman  v.  King,  2  N.  D.  430,  33  Am.  St.  Rep.  797,  51  N.  W.  721,  holding 
statute  making  seed-grain  liens  superior  to  existing  mortgages  unconstitutional; 
Green  v.  Thornton,  8  Cal.  App.  166,  96  Pac.  382,  holding  statutes  changing  time 
of  redemption  not  applicable  to  obligations  entered  into  prior  to  the  changes; 
Hayes  v.  Briggs,  106  Me.  427,  76  Atl.  905,  holding  that  statute  authorizing 
probate  judge  to  instruct  administrator  to  sue  on  probate  bond  affects  remedy 
only. 

Cited  in  footnotes  to  Peninsular  Lead  &  Color  Works  v.  Union  Oil  &  Paint  Go. 
42  L.  R.  A.  331,  which  holds  statute  for  dissolution  of  attachment  by  assignment 
for  creditors  within  ten  days  void  as  to  contracts  made  when  right  of  attachment 
absolute;  Second  Ward  Sav.  Bank  v.  Schranck,  39  L.  R.  A.  569,  which  denies  right 
to  change  remedy  on  existing  notes  on  warrants  of  attorney;  Lawrence  v.  Louis- 
ville, 27  L.  R.  A.  560,  which  holds  right  to  compel  defense  of  limitation  pro- 
tected against  subsequent  change  of  law;  International  Bldg.  &  L.  Asso.  v. 
Hardy,  24  L.  R.  A.  284,  which  denies  legislative  power  to  change  remedy  for 
enforcing  trust  deed;  Kirkman  v.  Bird,  58  L.  R.  A.  670,  which  sustains  as  to 
prior  obligations  statute  exempting  wages  for  sixty  days  preceding  levy;  Jones 
v.  German  Ins.  Co.  46  L.  R.  A.  860,  which  sustains  statute  shortening  time  of 
insurance  company's  immunity  from  suit  without  extending  period  of  limita- 
tions; Beverly  v.  Barnitz,  31  L.  R.  A.  74,  which  upholds  statute  changing  remedy 
on  mortgage  contract  by  extending  time  for  redemption;  White  v.  Farmers' 
Higliline  Canal  &  Reservoir  Co.  31  L.  R.  A.  828,  which  holds  act  regulating  dis- 
tribution of  water  from  canals  valid  as  applied  to  prior  contract;  Miners'  & 
Merchants'  Bank  v.  Snyder,  68  L.R.A.  312,  which  holds  corporate  creditor's  con- 
tract rights  not  impaired  by  statute  requiring  all  creditors  to  unite  in  one  suit 
against  all  stockholders  for  equitable  distribution  of  liability  fund  among  cred- 
itors. 

Cited  in  notes  (10  L.  R.  A.  407)  on  power  to  take  away  vested  rights;  (16 
L.  R.  A.  647 )  on  change  of  decision  of  state  court  as  unconstitutional  impairment 
of  contract;  (120  Am.  St.  Rep.  470)  on  effect  of  statutes  making  pre-existing 
contracts  illegal. 

Distinguished  in  Fitzgerald  v.  Phelps  &  B.  Windmill  Co.  42  W.  Va.  579,  26 
S.  E.  315,  holding  subsequent  act  providing  for  sale  on  execution,  constitutional. 

4  L.  R.  A.  353,  LOOS  v.  WILKINSON,  113  N.  Y.  485,  10  Am.  St.  Rep.  495,  21 

N.  E.  392. 
Rule    as    to   recovery    of    actual    damages. 

Cited  in  Dyka  v.  National  Transit  Co.  22  App.  Div.  362,  49  N.  Y.  Supp.  180, 
holding  measure  of  damages  for  oil  wrongfully  taken  from  land  under  supposi- 
tion of  legal  right,  is  value  in  the  earth:  Costicli  v.  Rochester,  68  App.  Div.  631, 
73  N.  Y.  Supp,  835,  holding  owner  whose  property  is  covered  through  overflow 
from  sewer  in  heavy  rainfalls  not  entitled  to  punitive  damages;  Boshart  v. 


4  L.R.A.  353]  L.  R.  A.  CASES  AS  AUTHORITIES.  678 

Kirley,  34  Misc.  246,  69  N.  Y.  Supp.  623,  holding,  upon  disagreement,  allowances 
to  mortgagee  under  void  mortgage  should  be  settled  by  referee  or  court ;  Smith 
v.  \Yise,  132  N.  Y.  179,  30  N.  E.  229,  holding  allowance  to  fraudulent  assignee 
for  appraising  stock,  legal  services,  rent  of  factory,  labor,  etc.,  properly  refused ; 
Hamilton  Nat.  Bank  v.  Halsted,  134  N.  Y.  524,  525,  30  Am.  St.  Rep.  693,  31 
N.  E.  900,  holding  fraudulent  transferee  of  securities,  subject  to  valid  debt  lien 
liable  only  for  value  of  debtor's  equity;  Brown  v.  Chubb,  135  N.  Y.  181,  31  N. 
E.  1030,  holding  constructively  fraudulent  grantee  of  land  may  hold  it  as  security 
for  honest  debt;  Hamilton  Nat.  Bank  v.  Halsted,  56  Hun,  534,  9  N.  Y.  Supp. 
852,  holding  fraudulent  vendee  entitled  to  reimbursement  for  money  paid  in 
relieving  property  from  encumbrance;  McConihe  v.  Derby,  62  Hun,  94,  16  N.  Y. 
Supp.  474,  holding  fraudulent  vendee  cannot  retain  proceeds  of  property  sold 
and  applied  to  his  own  debt;  Abell  v.  Bradner,  39  N.  Y.  S.  R.  10,  15  N.  Y.  Supp. 
64,  holding  accountability  of  administrator  for  rents  of  intestate's  property  pur- 
chased by  him  must  only  be  fair  rental  value;  Daisy  Roller  Mills  v.  Ward,  6  N. 
D.  325,  70  N.  W.  271,  holding  fraudulent  grantee  cannot  hold  land  as  security 
for  advances;  Baldwin  v.  June,  68  Hun,  287,  22  N.  Y.  Supp.  852,  holding  fraudu- 
lent grantee  with  knowledge  can  hold  property  as  security  for  value  of  land  con- 
veyed in  exchange;  Ackerman  v.  Merle,  137  Cal.  172,  69  Pac.  983,  holding  fraudu- 
lent grantee  paying  mortgage,  entitled  to  subrogation,  upon  the  setting  aside  of 
conveyance  on  behalf  of  creditors. 

Distinguished  in  Baldwin  v.  Short,  54  Hun,  476,  7  N.  Y.  Supp.  717,  holding 
fraudulent  grantee  with  knowledge  cannot  hold  property  as   security   for  valid 
debt. 
Collection   of  rent. 

Cited  in  Collins  v.  Collins,  8  App.  Div.  507,  40  N.  Y.  Supp.  902,  holding  co- 
tenant  chargeable  with  share  of  amount  executrix  found  entitled  to  for  collec- 
ing  rent. 
Taxes    and    repairs. 

Cited  in  Haight  v.  Pine,  10  App.  Div.  474,  42  N.  Y.  Supp.  303,  holding  one  in 
wrongful  possession  of  land  entitled  to  allowance  for  expenditures  for  taxes  and 
repairs. 
Interest. 

Cited  in  Elmira  Iron  &  S.  Rolling  Mill.  Co.  v.  Llmira,  5  Misc.   196,  25  N.  Y. 
Supp.  657,  holding  contract  rate  of  interest  on  bond,  less  than  legal  rate,  con- 
tinues after  maturity. 
T)eetl   as    security    for    liability    of    Indorser. 

Cited  in  Lazarus  v.  Rosenberg,  70  App.  Div.  107,  75  N.  Y.  Supp.  11,  upholding 
deed  transferred  as  security  for  indorsement  against  creditors  to  extent  of  such 
liability. 
Fraudulent    conveyances. 

Cited  in  Putzel  v.  Schulhotf,  25  Jones  &  S.  508,  8  N.  Y.  Supp.  651,  holding 
•creditors  not  entitled  to  policies  on  property  fraudulently  transferred,  not  taken 
out  for  benefit  of  judgment  debtor  or  his  creditors. 

Cited  in  note  (9  L.  R.  A.  416)  on  validity  of  voluntary  conveyance. 
Accountability  of  grantee  on  cancelation. 

Cited  in  Adams  v.  Young,  200  Mass.  591,  86  N.  E.  942,  holding  that  the  bona 
fide  purchaser  of  stock  of  merchandise  in  bulk  is  entitled  to  subrogation  to  secur- 
ities of  creditors  of  vendor  whose  claims  he  has  paid,  though  the  sale  to  him  is 
fraudulent  as  to  such  creditors;  Re  Medina  Quarry  Co.  179  Fed.  933,  holding 
that  where  one  in  fraud  of  creditors  of  transferor  takes  a  transfer  in  bad  faith 


679  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  3G8 

he  is  not  a  trespasser  and  is  only  accountable  for  net  profits  earned  from  opera- 
tion of  the  business  transferred  after  allowance  of  expenditures  other  than  taxes. 

4  L.  R.  A.  360,  BRACKENRIDGE  v.  STATE,  27  Tex.  App.  513,  11  S.  W.  630. 
Removal   of   public   officer. 

Cited  in  State  v.  Welsh,  109  Iowa,  22,  79  N.  W.  369,  holding  misconduct  prior 
to  re-election  ground  for  removal;  State  ex  rel.  Schultz  v.  Patton,  131  Mo.  App. 
632,   110  S.  W.  636,  holding  defalcations  in  office  of  collector  prior  to  election 
to  office  of  treasurer  not  grounds  for  removal  from  last  office. 
Disqualification  of  juror Xew  trial. 

Cited  in  note  (18  L.  R.  A.  474)  on  disqualification  of  juror  as  ground  for  new 
trial. 

Overruled  in  Leeper  v.  State,  29  Tex.  App.  71,  14  S.  W.  398,  holding  disqualifi- 
cation of  juror  not  ground  for  new  trial. 
{.liability  of  officer   tvrongrfnlly  receiving   fees. 

Cited  in  footnote  to  Marcotte  v.  Allen,  40  L.  R.  A.  185,  which  holds  officer 
receiving  fees  to  which  he  has  no  right,  without  informing  person  paying  him, 
liable  to  action  for  money  had  and  received. 

Cited  in  note  (116  Am.  St.  Rep.  451,  452)  on  what  constitutes  extortion. 
Evidence. 

Cited  in  note  (62  L.  R.  A.  277,  341)  in  evidence  of  other  crimes  in  criminal  case. 
Statutory  demand  or  presentment  of  claim. 

Cited  in  Efland  v.  Southern  R.  Co.  146  K  C.  133,  59  S.  E.  359,  holding  a  written 
statement  of  overcharges  in  separate  items  accompanied  by  bill  of  lading  and 
paid  freight  bill  amounts  to  a  written  demand  for  each  overcharge  in  compli- 
ance with  statute;  Babbitt  v.  Chicago  &  A.  R.  Co.  149  Mo.  App.  449,  130  S.  W. 
364.  holding  that  demand  within  statute  as  to  interest  on  accounts  is  request 
to  do  particular  thing,  under  claim  of  right  on  part  of  person  requesting. 

4  L.  R.  A.  365,  GRAYSON  v.  WILLOUGHBY,  78  Iowa,  83,  42  N.  W.  591. 
Corporations;    consolidation. 

Cited  in  Chevra,  Bnai  Israel  v.  Chevra  Bikur  Cholim,  24  Misc.  190,  52  N.  Y. 
Supp.  712,  holding  corporations  cannot  consolidate  without  legislative  authority. 

Cited  in  notes  (52  L.R.A.  391)  on  right  of  corporations  to  consolidate;  (52 
Am.  St.  Rep.  55] )  on  estoppel  of  member  of  consolidated  insurance  company. 

4  L.  R.  A.  367,  POMEROY'S  APPEAL,  127  Pa.  492,  18  Atl.  4. 
Effect  of  Probate. 

Cited  in  Re  Miller,  216  Pa.  256,  65  Atl.  681,  holding  a  decree  admitting  will 
to  probate  is  conclusive  as  to  the  appointment  of  the  executor  named  therein 
when  unappealed  from;  Taylor's  Estate,  24  Montg.  Co.  L.  Rep.  127,  holding  that 
granting  of  letters  testamentary  is  pro  forma  act  to  give  effect  to  will. 

4  L.  R.  A.  368,  HINDMARCH  v.  HOFFMAN,  127  Pa.  284,  14  Am.  St.  Rep.  842, 

18  Atl.  14. 
Assumpsit    for    money    received    by    third    person. 

Cited  in  Fay  v.  Slaughter,  194  111.  168,  56  L.  R.  A..  569,  88  Am.  St.  Rep.  148, 
62  X.  E.  592.  holding  drawer  cannot  recover  from  innocent  person  through  whose 
bank  account  checks  fraudulently  obtained  were  passed;  Greer  v.  Newland,  70 
Kan.  313.  70  L.R.A.  557,  109  Am.  St.  Rep.  424,  77  Pac.  98,  holding  commission 
merchant  liable  to  mortgagee  for  proceeds  from  acceptance  and  sale  of  mort- 
gaged stock  though  he  lias  only  constructive  knowledge  of  mortgage  by  way  of 


4  L.R.A.  368]  L.  R.  A.  CASES  AS  AUTHORITIES.  680 

record;  Humbird  v.  Davis,  230  Pa.  320,  59  Atl.  J082,  holding  that  where  agent 
has  made  a  profit  from  money  of  his  principals  such  principals  may  maintain  ani 
action  in  assumpsit  for  money  had  and  received  against  the  agent;  Sensenig  v. 
Seiverling,  22  Lane.  L.  Rev.  76,  holding  that  owner  of  horse  may  replevin  him 
from  person  with  whom  owner's  agent  traded  withoiit  authority  or  sue  such 
person  for  conversion,  on  refusal  to  give  up  horse;  Linton  v.  Shenk,  25  Lane.  L. 
Rev.  338,  holding  that  widow  cannot  maintain  assumpsit  against  executors  of 
husband  for  money  she  entrusted  to  one  of  them. 

Cited  in  footnote  to  Soderberg  v.  King  County,  33  L.  R.  A.  670,  which  author- 
izes assumpsit  against  county  for  fees  erroneously  paid  by  sheriff  on  foreclosure 
sale. 
Conversion. 

Cited  in  Dixon  v.  Owens,  21  Pa.  Super.  Ct.  377,  holding  race-track  owner 
permitting  trainer  wrongfully  to  take  away  horse,  liable  to  owner  for  value 
thereof;  Hornefius  v.  Wilkinson,  51  Or.  48,  93  Pac.  474,  holding  tort  can  be 
waived  and  action  brought  on  implied  contract  for  money  given  to  defendant 
to  invest  with  his  own  when  he  conveys  property  bought  and  fails  to  account. 
Title  of  one  taking-  money  from  thief. 

Cited  in  note  (25  L.R.A.  (N.S.)  635)  on  title  of  one  taking  money  from  thief 
or  embezzler. 

4  L.  R.  A.  370,  BAKER  v.  BREM,  103  N.  C.  72,  9  S.  E.  629. 
Negotiable    Instruments Rig-hts    of   maker. 

Cited  in  Mader  v.  Cool,  14  Ind.  App.  303,  56  Am.  St.  Rep.  304,  42  N.  E.  945, 
holding  payee  transferring  note  wanting  consideration  to  bona  fide  holder,  liable 
to  maker;  Burgess  v.  Alcorn,  75  Kan.  737,  90  Pac.  239,  on  the  liability  of  payee 
to  maker  of  negotiable  note  for  face  value  of  note  where  there  is  a  failure  of 
consideration  therefor  and  the  note  is  in  the  hands  of  a  bona  fide  holder. 

Cited  in  note  (27  L.  R.  A.  521)  on  liability  for  transferring  negotiable  note- 
to  bona  fide  holder  so  as  to  cut  off  defense. 

Instructions,    what    improper. 

Cited  in  Norton  v.  North  Carolina  R.  Co.  122  N.  C.  934,  29  S.  E.  880.  holding 
refusal  of  instruction  that  in  certain  event  plaintiff  could  not  recover,  no  error; 
Rickert  v.  Southern  R.  Co.  123  N.  C.  258,  31  S.  E.  497,  holding  where  evidence- 
conflicting,  request  to  charge,  "If  jury  believe  evidence,  answer  to  issue  should 
be  'No,'"  properly  refused;  Jones  v.  Balsley,  154  N.  C.  65,  69  S.  E.  827,  holding 
improper  instruction  that  if  jury  believe  evidence,  plaintiff  is  entitled  to  recover. 

Distinguished  in  Alexander  v.  Richmond  &  D.  R.  Co.  112  N.  C.  732,  16  S.  E.. 
896,   holding   conclusion   of   instruction    in   objectionable   form   not   error   where 
facts  given  as  requested. 
Rescission   of  contracts. 

Cited  in  notes  (9  L.R.A.  611)  on  rescission  of  contract  for  breach  of  warranty; 
(36  L.R.A. (N.S.)  468,  on  sales:  use  as  waiver  of  right  to  rescind  for  breach  of 
warranty  or  noncompliance  with  contract. 

4  L.  R.  A.  373,  CHIPPEWA  LUMBER  CO.  v.  TREMPER,  75  Mich.  30,  13  Am. 

St.  Rep.  420,  42  N.  W.  532. 
Deeds;    restrictions   as    to    nse    of   premises. 

Followed  in  Burdell  v.  Grandi,  152  Cal.  380,  14  L.R.A. (N.S.)  912,  92  Pac. 
1022,  holding  a  condition  in  deed  prohibiting  sale  of  liquor  under  penalty  of 
forfeiture  inserted  to  enable  grantor  to  obtain  a  monopoly  on  retail  liquor 
traffic  is  invalid. 


681  L.  R.  A.  CASES  AS  AUTHORITIES.     .          [4  L.R.A.  380 

Cited  in  Jenks  v.  Pawlowski,  98  Mich.  112,  22  L.  R.  A.  864,  39  Am.  St.  Rep. 
522,  56  N.  W.  1105,  holding  restriction  cannot  be  insisted  on  by  grantor  if 
adjoining  property  thereafter  conveyed  without  restriction;  Brown  v.  Wright  man, 
5  Cal.  App.  394,  90  Pac.  467,  holding  that  conveyance  and  lease  of  tracts  ad- 
joining tract  restricted  in  deed,  by  same  grantor  for  a  purpose  the  subject  of 
the  restriction  on  the  restricted  tract  is  a  waiver  of  such  restriction. 

Cited  in  notes  (28  L.R.A.(N.S.)  709)  on  enforcement  of  restrictive  covenant 
as  affected  by  change  in  neighborhood;  (79  Am.  St.  Rep.  762)  on  restrictions 
as  to  intoxicating  liquors;  (95  Am.  St.  Rep.  222)  on  validity  of  conditions  and 
restrictions  in  deed. 

Distinguished  in  Frink  v.  Hughes,  133  Mich.  66,  94  N.  W.  600,  holding  a  building 
restriction  in  deed  not  waived  by  failure  to  insert  same  restriction  in  subsequent 
deeds  to  adjoining  tracts  where  such  subsequent  grantees  have  followed  the 
scheme  of  the  restriction;  Whealkate  Min.  Co.  v.  Mulari,  152  Mich.  610,  18  L.R.A. 
(N.S. )  148,  116  N.  W.  360,  holding  a  condition  in  a  deed  against  sale  of  liquors 
except  by  grantor  valid  where  the  purpose  of  grantor  is  to  confine  traffic  to  cer- 
tain limits  and  keep  it  under  control. 

4  L.  R.  A.  376,  HILL  v.  DENVER  &  R.  G.  R.  CO.  13  Colo.  35,  21  Pac.  914. 
Lien  of  bailee. 

Annotation  cited  in  Estey  Co.  v.  Dick,  41   Pa.   Super.  Ct.  616,  holding  that 
warehouseman   has  no  lien  as   against  owner  of  piano   wrongfully  stored  by  a 
bailee. 
—  Carriers. 

Cited  in  notes  (5  Eng.  Rul.  Cas.  283)  on  carrier's  right  to  retain  good?  until 
payment  of  freight;  (2  Brit.  Rul.  Cas.  612)  on  effect  of  deviation  upon  carrier's 
right  to  lien. 

4  L.  R.  A.  378,  WILSON  v.  ST.  PAUL,  M.  &  M.  R.  CO.  41  Minn.  56,  42  N.  W.  600. 
License. 

Cited  in  Minneapolis  Western  R.  Co.  v.  Minneapolis  &  St.  L.  R.  Co.  58  Minn. 
132,  59  N.  W.  983,  holding  construction  of  tracks  upon  another's  land  by  per- 
mission and  consent  mere  revocable  license;  Schultz  v.  Huffman,  127  Mich.  279, 
86  N.  W.  823,  holding  right  of  drainage  through  lands  of  another  cannot  be 
created  by  parol;  Munsch  v.  Stelter,  109  Minn.  406,  25  L.R.A.(N.S.)  731,  134 
Am.  St.  Rep.  785,  124  N.  W.  14,  enjoining  obstruction  by  one  owner,  of  ditch 
constructed  by  joint  co-operation  under  verbal  agreement;  Re  White  Plains, 
124  App.  Div.  3,  108  N.  Y.  Supp.  596,  holding  that  the  right  to  enter  upon 
land  under  a  license  continued  until  notice  of  revocation  unless  revoked  by  con- 
veyance, when  as  against  the  grantee  the  licensee  becoms  a  trespasser. 

Cited  in  footnote  to  Rodefer  v.  Pittsburg  0.  V.  &  C.  R.  Co.  70  L.R.A.  844, 
which  holds  siding  or  switch  constructed  by  railroad  company  to  manufactory 
at  expense  of  and  over  land  of  manufacturer  for  sole  purpose  of  affording  facili- 
ties for  receiving  and  shipping  freight  and  silent  as  to  period  it  is  to  remain 
not  maintainable  by  railroad  company  against  manufacturer's  objection. 

Cited  in  notes  (10  L.R.A.  487)  on  right  by  prescription  to  use  lands  of 
another;  (49  L.R.A.  500)  on  revocability  of  license  to  maintain  a  burden  upon 
land,  after  the  licensee  has  incurred  expense  in  creating  the  burden;  (31  Am. 
St.  Rep.  715,  716)  on  nature  and  revocation  of  parol"  licenses. 

4  L.  R.  A.  380,  CARL  v.  STATE,  87  Ala.  17,  6  So.  118. 

Second  appeal  in   89  Ala.   97,   8   So.   156. 
Evidence  ns  to   intoxicating  Quality   of   liquor. 

Cited  in  Brantley  v.  State,  91  Ala.  49,  8  So.  816,  holding  testimony  of  wit- 


4  L.R.A.  380]          .     L.  R.  A.  CASES  AS  AUTHORITIES.  682 

nesses  as  to  intoxicating  effect  of  beverage  upon  themselves  admissible;  Com.  v. 
Gavin,  160  Mass.  524,  36  X.  E.  484,  holding  testimony  of  barkeeper  that  he 
sold  intoxicating  beer  evidence  that  beer  was  intoxicating;  State  v.  Gillispie.  G3 
W.  Va.  155,  59  S.  E.  957,  holding  opinion  of  witness  as  to  whether  he  thought 
cider  of  which  he  drank  would  cause  intoxication  if  drank  to  excess  admissible; 
State  v.  Good.  56  W.  Va.  219,  49  S.  E.  121,  holding  it  proper  to  show  that  at 
other  times  or  on  other  persons  a  druggist  concoction  produced  none  of  the 
effects  of  intoxication. 
What  liquors  are  intoxicating. 

Cited  in  Wadsworth  v.  Dunnam,  98  Ala.  612,  13  So.  597,  holding  question  for 
jury  whether  a  cordial  is  intoxicating;  Wadsworth  v.  Dunnam,  117  Ala.  671, 
23  So.  699,  holding  test  of  intoxicating  liquor  within  statute  is  whether  intoxi- 
cating quantity  may  reasonably  be  drunk;  Walker  v.  Dailey,  101  111.  App.  582, 
holding  fact  lemon  extract  would  intoxicate  as  beverage  not  sufficient  to  make 
sale  illegal  under  prohibitory  liquor  law  State  v.  Kezer,  74  Vt.  53,  52  Atl.  116, 
holding  illegal,  sale  of  essence  containing  large  percentage  of  alcohol,  with  knowl- 
edge it  was  to  be  used  as  a  beverage;  Marks  v.  State,  159  Ala.  82,  133  Am.  St. 
Rep.  20,  48  So.  864,  on  the  construction  of  prohibition  laws  and  the  meaning  of 
words  and  phrases  commonly  used  therein  as  to  what  liquors  and  drinks  are 
intoxicating  and  come  within  the  prohibition. 

Cited  in  note  (20  L.  R.  A.  647)  on  what  liquors  are  within  statutory  restric- 
tions as  to  sale  of  "spirituous,"  "vinous,"  "fermented,"  and  other  intoxicating 
liquors. 

4  L.  R.  A.  382,  MARSH  v.  SUPREME  COUNCIL  A.  L.  OF  H.  149  Mass.  512,  21 

N.  E.  1070. 
Beneficiaries  entitled  to   proceeds   of  certificates. 

Cited  in  Smith  v.  Boston  &  M.  R.  Relief  Asso.  168  Mass.  214,  46  X.  E.  626, 
holding  that,  where  last  designation  of  sister  in  certificate  fails  because  she  is 
not  a  "dependent"  upon  holder,  previous  designation  of  wife  remains  in  force; 
Sargent  v.  Supreme  Lodge  K.  of  H.  158  Mass.  564,  33  X.  E.  650,  holding  bene- 
ficiary falsely  designated  as  "dependent,"  not  entitled  to  proceeds  of  beneficiary 
certificate;  Pease  v.  Supreme  Assembly  Royal  Soc.  of  G.  F.  17G  Mass.  507.  57 
X.  E.  1003,  holding  bill  in  equity  proper  to  determine  rights  between  rival 
claimants  to  certificate  proceeds. 

Cited  in  note   (52  Am.   St.  Rep.   571)   on  beneficiaries  entitled  to  proceeds  of 
certificates. 
NJII  iir<-    of   l>eneflt   certificate   of   insurance. 

Cited  in  Anthony  v.  Massachusetts  Ben.  Asso.  158  Mass.  324,  33  X.  E.  577, 
holding  member  of  beneficiary  association  could  assign  part  of  money  payable 
under  certificate  to  sister;  Sanborn  v.  Black,  07  X.  H.  538,  35  Atl.  942,  holding 
directors  of  association  cannot  arbitrarily  refuse  consent  to  substitution  of 
beneficiary;  Danielson  v.  Wilson,  73  111.  App.  297;  Hanna  v.  Hanna,  10  Tex.  Civ. 
App.  101,  30  S.  W.  820,  holding  beneficiaries  must  be  determined  by  association 
by-laws,  not  by  certificate. 

Cited  in  note  (12  L.  R.  A.  210)  on  certificates  of  membership  in  benefit  society 
as  insurance  policies  in  effect. 
Statutory    enlargement    of    association's    powers. 

Cited  in  Tepper  v.  Supreme  Council  of  R.  A.  61  X.  J.  Eq.  643,  88  Am.  St. 
Rep.  449,  47  Atl.  460,  holding  stepchildren  of  insured  properly  designated  in 
certificate  as  "members  of  the  family;"  Mathewson  v.  Supreme  Council  R.  A. 


083  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  382 

146  Mich.  679,  110  N.  W.  69,  on  designation  of  beneficiary  contrary  to  by-laws 
under  a  statutory  amendment. 
Change    of   beneficiary. 

Cited  in  McGowan  v.  Supreme  Court,  I.  O.  of  F.  104  Wis.  181,  80  N.  W.  603, 
holding  equity  will  afford  relief  where  insured  does  every  substantial  act  re- 
quired to  substitute  beneficiary  before  dying;  Clark  v.  Supreme  Council  R.  A. 
176  Mass.  471,  57  N.  E.  787,  holding  that  equity  will  afford  relief  where  in- 
tended transfer  is  prevented  by  fraud  of  beneficiary;  Jory  v.  Supreme  Council 
A.  L.  of  H.  105  Cal.  27,  26  L.  R.  A.  735,  45  Am.  St.  Rep.  17,  38  Pac.  524, 
upholding  substitution  of  ^  beneficiary,  insured  having  taken  all  steps  possible 
therefore;  Supreme  Conclave  R.  A.  v.  Cappella,  41  Fed.  7,  holding  original  bene- 
iiciary  estopped  by  misconduct  from  denying  compliance  of  insured  with  formali- 
ties as  to  substitutions;  Lahey  v.  Lahey,  174  N.  Y.  155,  61  L.  R.  A.  795,  95  Am. 
St.  Rep.  554,  66  N.  E.  670,  holding  insured  not  deprived  of  right  to  change  bene- 
ficiary by  refusal  of  original  beneficiary  to  deliver  certificate  on  demand;  Schardt 
v.  Schardt,  100  Tenn.  280,  45  S.  W.  340,  holding  that  association,  may  waive 
formality  as  to  surrender  of  certificate  on  change  of  beneficiary;  Holden  v.  Mod- 
ern Brotherhood,  151  Iowa,  681,  132  N.  W.  329,  holding  beneficiary  changed,  where 
insured  did  everything  except  surrender  original  certificate  which  original  bene- 
ficiary refused  to  deliver;  Grand  Lodge,  A.  O.  U.  W.  v.  McFadden,  213  Mo.  290, 
111  S.  W.  1172,  holding  that  where  insured  did  all  he  could  to  comply  with  by- 
laws in  changing  beneficiary  except  to  turn  in  original  certificate  to  endorse 
change  thereon,  an  equitable  change  will  be  decreed;  Grand  Lodge,  A.  0.  U.  W. 
v.  O'Malley,  114  Mo.  App.  206,  89  S.  W.  68,  holding  substantial  compliance  with 
by-laws  for  protection  of  society  sufficient  in  making  change  of  beneficiary. 

Cited  in  notes  (7  L.  R.  A.  189)  on  transfer  of  mutual  benefit  certificates; 
(15  L.  R.  A.  353)  on  changing  designation  in  benefit  certificate  otherwise  than 
in  prescribed  method;  (49  L.  R.  A.  738,  739,  754)  on  power  of  insured  to  destroy 
rights  of  beneficiary;  (14  Am.  St.  Rep.  527;  25  Am.  St.  Rep.  264;  52  Am.  St. 
Rep.  562)  on  change  of  beneficiary;  (87  Am.  St.  Rep.  516)  on  assignment  of 
life  insurance  policies. 
Mature  of  beneficiary's  right. 

Cited  in  Mutual  L.  Ins.  Co.  v.  Twyman,  122  Ky.  522,  121  Am.  St.  Rep.  471, 
92  S.  W.  335,  holding  insured  may  change  beneficiaries  as  he  chooses  no  right 
vesting  in  beneficiary  before  death  of  insured,  where  policy  stipulates  for  as- 
signment or  change  of  beneficiary  with  consent  of  company;  Davis  v.  Supreme 
Council  R.  I.  195  Mass.  408,  10  L.R.A.(X.S.)  724,  81  N.  E.  294,  11  A.  &  E.  Ann. 
Cas.  777,  holding  no  such  interest  in  beneficiary  as  to  enable  him  to  maintain 
suit  on  policy  allowing  change  of  beneficiary,  where  insured  being  of  sound  mind 
committed  suicide  there  being  no  suicide  clause;  Cook  v.  Supreme  Conclave  I. 
O.  H.  202  Mass.  88,  88  X.  E.  584,  holding  executor  cannot  recover  in  policy  issued 
to  fraternal  society  in  benefit  of  assured's  wife  where  she  predeceased  insured 
and  he  did  not  substitute  new  beneficiary. 

Cited  in  notes  (19  Am.  St.  Rep.  790:  52  Am.  St.  Rep.  566)  on  nature  of  right  of 
beneficiary  in  mutual  or  membership  life  or  accident  insurance. 
Res  jmlicata. 

Cited  in  note   (7  L.  R.  A.  582)   on  doctrine  of  res  judicata. 

Distinguished  in  O'Brien  v.  Continental  Casualty  Co.  184  Mass.  585,  69  N.  E. 
308,  denying  right  of  creditor  in  equity  to  substitution  as  beneficiary  in  policy 
surrendered  for  that  purpose. 
Meaning   of  word    "family." 

Cited  in  Townsend  v.  Townsend,  156  Mass.  456,  31  N.  E.  632,  construing  word 


4  L.R.A.  382]  L.  R.  A.  CASES  AS  AUTHORITIES.  684 

"family"  used  in  will  as  not  confined  to  persons  actually  living  with  testator; 
Speer  v.  Boston  Police  Relief  Asso.  195  Mass.  353,  81  N.  E.  196,  holding  that 
where  only  members  of  insured's  family  may  be  named  as  beneficiaries  two  chil- 
dren married  and  moved  away  are  not  such  persons  as  may  be  beneficiaries. 

4  L.  R.  A.  386,  VANHORNE  v.  CORCORAN,  127  Pa.  255,  18  Atl.  16. 
Special  partnerships  niul  sufficiency  of  schedules  of  contribution. 

Cited  in  Laflin  &  R.  Powder  Co.  v.  Steytler,  146  Pa.  443,  14  L.  R.  A.  695,  29 
W.  X.  C.  233,  23  Atl.  215,  holding  schedule  describing  and  valuing  as  a  whole 
several  tracts  of  coal  land  and  rights,  sufficient;  Haslet  v.  Kent,  160  Pa.  88, 
34  W.  N.  C.  58,  28  Atl.  501,  holding  that  contributions  to  capital  of  special 
partnership  cannot  be  made  in  personal  property  of  another  limited  company 
subject  to  its  debts;  Fourth  Street  Nat.  Bank  v.  Whitaker,  170  Pa.  304,  37  W.  X. 
C.  79,  33  Atl.  100,  holding  special  partner  liable  as  general  partner  where 
capital  stock  contributed  by  him  as  unimpaired  was  unknowingly  impaired; 
Blumenthal  Bros.  v.  Whitaker,  170  Pa.  315,  37  W.  X.  C.  84,  33  Atl.  103.  holding 
statement  that  half  of  specified  amount  of  capital  was  in  goods  and  merchandise, 
insufficient;  Robbins  Electric  Co.  v.  Weber,  172  Pa.  645,  37  W.  X.  C.  466,  34 
Atl.  116,  holding  itemized  statement  of  property  contributed  sufficient;  First 
Nat.  Bank  v.  Creveling,  177  Pa.  284,  39  W.  N.  C.  Ill,  35  Atl.  595,  holding  state- 
ment of  real  estate  contributed  at  certain  value,  without  specifying  lien,  defective; 
Reynolds  v.  Creveling,  17  Pa.  Co.  Ct.  29,  4  Pa.  Dist.  R.  419,  holding  that  where 
property  contributed  is  subject  to  liens  or  debts,  certificate  should  so  state;  Frank 
v.  Lewis  Foundry  &  Mach.  Co.  24  Pittsb.  L.  J.  X.  S.  34,  holding  organization  of 
special  partnership  upon  part  payment  of  stock  in  encumbered  property  and  over- 
due notes,  illegal;  Re  Mill  Work  &  Mantel  Co.  4  Pa.  Super.  Ct.  117,  holding 
special  partners  liable  as  general  partners  for  filing  statement  materially  untrue 
and  failure  to  keep  subscription  book;  Siegel  v.  Haines.  15  Pa.  Co.  Ct.  46, 
3  Pa.  Dist.  R.  467,  35  W.  N.  C.  358,  holding  special  partners  liable  as  general 
partners  where  certificate  fails  to  describe  nature  and  value  of  goods  contributed ; 
Deckert  v.  Chesapeake  Western  Co.  101  Va.  809,  45  S.  E.  799,  holding  word 
"capital"  in  statute  relating  to  partnership  associations  to  mean  cash  or  its 
•equivalent;  Wood  v.  Sloman,  150  Mich.  188,  114  X.  W.  317,  holding  a  contribu- 
tion described  in  schedule  of  assets  as  a  formula  for  manufacture  valued  at 
45499.998,  is  insufficient  to  comply  with  statute  providing  for  limited  partnerships; 
Chatham  Xat.  Bank  v.  Gardner,  31  Pa.  Super.  Ct.  137,  holding  members  of  defec- 
tive limited  partnership  liable  as  general  partners,  the  defect  consisting  in  non- 
compliance  with  enabling  statute. 

Cited  in  footnote  to  Edwards  v.  Warren  Linoline  &  Gasoline  Works,  38  L.  R.  A. 
791,  which  holds  partnership  association  organized  under  laws  of  Pennsylvania 
regarded  as  partnership  instead  of  corporation  in  Massachusetts. 

Cited  in  note  (8  L.  R.  A.  712,  713)  on  limited  partnerships. 

Distinguished  in  Rehfuss  v.  Moore,  134  Pa.  473,  26  W.  X.  C.  108,  7  L.  R.  A.  665, 
19   Atl.   756,   holding  patent-right   property   contributable   to   capital   of  limited 
partnership. 
—  Strict  construction  of  statute. 

Cited  in  Gearing  v.  Carroll,  151  Pa.  85,  30  W.  N.  C.  537,  24  Atl.  1045,  holding 
limited-partnership  act  must  be  strictly  complied  with  to  obtain  its  benefits; 
Hogan  v.  Hadzsits,  113  Mich.  572,  71  X'.  W.  1092,  holding  specification  of  con- 
tribution of  special  partner  in  renewal  of  partnership  referred  to  original  con- 
tribution; Abington  Dairy  Co.  v.  Reynolds,  24  Pa.  Super.  Ct.  639,  on  burden  of 
showing  compliance  with  the  provisions  of  the  .enabling  act  as  resting  upon  per- 
sons seeking  to  set  up  limited  partnership  as  a  defense  to  individual  suit. 


685  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  389 

4  L.  R.  A.  389,  LAKE  SHORE  &  M.  S.  R.  CO.  v.  FRANZ,  127  Pa.  297,  18  Atl.  22. 
When    nonsuit   will   be  refused. 

Cited  in  Ellis  v.  Lake  Shore  &  M.  S.  R.  Co.  138  Pa.  521,  21  Am,  St.  Rep.  914, 
21  Atl.  140,  holding  question  for  jury  whether  person  injured  stopped  to  look 
and  listen  at  best  place  at  railroad  crossing;  Ely  v.  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.  158  Pa.  236,  27  Atl.  970,  holding  facts  as  to  negligence  being  in  dispute  must 
go  to  jury;  Baltimore  &  O.  &  C.  R.  Co.  v.  Walborn,  127  Ind.  148,  26  N.  E.  207, 
holding  questions  for  jury  where  more  than  one  inference  can  be  drawn  from 
facts;  Bracken  v.  Pennsylvania  R.  Co.  32  Pa.  Super.  Ct.  28,  holding  nonsuit 
should  be  refused  under  evidence  of  negligent  operation  of  railroad  gates  allow- 
ing people  unwarned  on  crossing  while  train  is  passing;  Shoemaker  v.  Philadel- 
phia, B.  &  W.  R.  Co.  9  Del.  Co.  Rep.  308,  holding  case  for  jury,  where  plaintiff 
drove  on  tracks  on  dark  foggy  morning,  safety  being  up;  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  v.  Houghland,  44  Ind.  App.  81,  85  N.  E.  369,  holding  that  plaintiff  should 
be  nonsuited,  where  he  drove  on  track  in  fog  after  hearing  whistle  of  train. 
Care  required  at  railroad  crossings. 

Cited  in  Roland  v.  Philadelphia  &  R.  R.  Co.  224  Pa.  632.  73  Atl.  958,  holding 
failure  to  lower  gates  for  passing  train  evidence  of  negligence  but  not  con- 
clusive of  itself;  Union  P.  R.  Co.  v.  Rosewater,  15  L.R.A. (N.S.)  808,  84  C.  C. 
A.  616,  157  Fed.  172,  13  A.  &  E.  Ann.  Cas.  851,  holding  that  the  signal  of  a 
flagman  to  cross  will  not  relieve  the  person  crossing  from  duty  to  look  and 
listen  before  venturing  onto  tracks;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Powers, 
173  Ind.  117,  88  N.  E.  1073,  holding  that  railroad  laborer  has  no  right  to  rely 
upon  schedule  of  trains,  nor  tracks  usually  taken. 

Cited  in  footnotes  to  Van  Auken  v.  Chicago  &  W.  M.  R.  Co.  22  L.  R.  A.  33, 
which  holds  failure  to  look  and  listen  on  dark  night  not  prevent  recovery  for 
injury  by  engine  running  backward;  Lorenz  v.  Burlington,  C.  R.  &  N.  R.  Co. 
56  L.  R.  A.  753,  which  holds  negligence  of  one  pursuing  cow  in  not  looking  and 
listening  before  crossing  railroad  track,  question  for  jury:  Woehrle  v.  Minnesota 
Transfer  R.  Co.  52  L.  R.  A.  348,  349,  which  sustains  traveler's  right  to  rely  on 
watchman's  absence  from  crossing;  Colorado  £  Southern  R.  Co.  v.  Thomas.  70 
L.R.A.  681,  which  holds  failure  to  look  and  listen  before  crossing  track  not  ex- 
cused by  existence  of  building  adjoining  highway  which  would  obstruct  view  of 
tracks  and  by  noise  created  therein  which  would  prevent  hearing  approaching 
train. 

Cited  in  notes  (7  L.R.A.  318)  on  duty  of  traveler  to  stop,  look,  and  listen; 
(4  L.R.A. (X.S.)  521)  on  duty  of  traveler  going  upon  railroad  crossing  when 
gates  are  open;  (17  L.R.A.(N.S.)  505)  on  duty  to  stop,  look  and  listen  after 
entering  on  first  track;  (33  L.R.A. (N.S.)  990)  on  railroads:  duty  as  to  opera- 
tion of  safety  gates  at  crossings. 

Distinguished  in  Matthews  v.  Philadelphia  &  R.  R.  Co.  161  Pa.  32,  28  Atl.  936, 
holding  rule   that  open  safety  gates  invite  traveler  to  cross,  not  applicable  to 
trespasser  on  tracks. 
Measure   of   damages. 

Cited  in  McCloskey  v.  Bells  Gap  R.  Co.  156  Pa.  258,  27  Atl.  246,  upholding 
misleading  general  instructions  followed  by  correct  enumeration  of  items  of 
damages  recoverable;  Braithwaite  v.  Hall,  168  Mass.  40,  46  N.  E.  398,  holding 
wages  lost  through  inability  to  work  in  consequence  of  defendant's  negligence, 
proper  damages. 
—  Future  pain  and  suffering;. 

Cited  in  Wallace  v.  Pennsylvania  R.  Co.  222  Pa.  561,  128  Am.  St.  Rep.  817.  77 
Atl.  1086.  holding  pain  and  suffering  an  element  of  damage  both  as  to  that 


4  L.R.A.  389]  L.  R.  A.  CASES  AS  AUTHORITIES.  686 

endured  and  that  which  will  probably  be  endured  in  future  as  a  consequence  of 
the  injury. 

4  L.  R.  A.   392,   SMITH  v.  CLEWS,   114  N.  Y.   190,   11   Am.   St.  Rep.   627,  21 

N.  E.  160. 
Effect  011  contracts  of  custom  of  trade. 

Cited  in  Atkinson  v.  Truesdell,  127  N.  Y.  234,  27  N.  E.  844,  holding  evidence  of 
custom  regarding  shipment  of  glass  bottles  admissible;  Burbridge  v.  Gunibel,  72 
Miss.  377,  16  So.  792,  holding  offer  to  show  custom  in  cotton  trade  should  have 
been  received;  Smith  v.  Clews,  35  N.  Y.  S.  R.  670,  12  N.  Y.  Supp.  471,  holding 
custom  in  diamond  trade  of  receipt  of  diamonds  on  approval  showed  no  title 
passed;  Saunders  v.  Payne,  36  N.  Y.  S.  R.  733,  12  N.  Y.  Supp.  735,  holding  de- 
livery of  diamonds  in  the  trade,  for  inspection,  passed  no  title;  Booth  Bros.  v. 
Baird,  87  Hnn,  455,  35  N.  Y.  Supp.  392,  holding  term  used  in  trade  not  so  firmly 
established  as  to  require  assumption  that  parties  contracted  with  reference  to 
it;  Everitt  v.  Indiana  Paper  Co.  25  Ind.  App.  292,  57  N.  E.  281,  holding  usage  in 
paper  trade  presumed  to  have  been  considered  by  parties  to  contract;  Pucci  v. 
Barney,  2  Misc.  356,  21  N.  Y.  Supp.  1099,  holding  evidence  of  custom  of  surveyors 
in  making  allowances  for  excavation  below  depths  mentioned  in  contract  ad- 
missible; Neff  v.  Klepfer,  16  Misc.  51,  37  N.  Y.  Supp.  654,  holding  evidence  ad- 
missible to  explain  meaning  of  contract  to  keep  boxes  on  call;  UnderwTood  v. 
Greenwich  Ins.  Co.  161  N.  Y.  424,  55  N.  E.  936,  holding  evidence  admissible  of 
custom  as  to  effect  of  binding  slip  in  insurance;  Re  Hayes,  37  Misc.  272,  75  N.  Y. 
Supp.  312,  holding  evidence  admissible  to  prove  custom  of  stock  exchange  in  re- 
lation to  transfer  of  seat;  Hammann  v.  Jordan,  129  N.  Y.  66,  29  N.  E.  294,  hold- 
ing evidence  of  custom  of  putting  flues  in  party  walls  in  New  York  admissible 
on  building  contract;  Van  Camp  Packing  Co.  v.  Hartman,  126  Ind.  180,  25 
N.  E.  901,  holding  express  contract  cannot  be  varied  by  evidence  of  custom  of  a 
different  time  for  receiving  goods;  Scott  v.  Hartley,  126  Ind.  243,  25  N.  E.  826, 
holding  parol  evidence  of  custom  not  admissible  to  vary  terms  of  express  con- 
tract; Anderson  v.  Dickinson,  72  Hun,  561,  25  N.  Y.  Supp.  533,  construing  con- 
tract in  reference  to  commissions;  Chilberg  v.  Lyng,  63  C.  C.  A.  451,  128  Fed. 
902,  holding  custom  contrary  to  public  policy  not  available  to  defendant  in 
action  to  recover  money  received  by  defendant  as  selling  agent. 

Cited  in  footnotes  to  German  American  Ins.  Co.  v.  Commercial  F.  Ins.  Co.  16 
Li.  R.  A.  291,  which  holds  custom  in  particular  city  as  to  what  constitutes  "build- 
ing" or  "risk"  not  presumed  to  be  known  to  foreign  company;  Baltimore  Base 
Ball  &  Exhibition  Co.  v.  Pickett,  22  L.  R.  A.  690,  wrhich  holds  special  contract 
for  definite  time  not  affected  by  custom  to  discharge  ball  players  on  ten  days' 
notice;  Pennsylvania  R.  Co.  v.  Xaive,  64  L.R.A.  443,  Avhich  holds  carrier  not 
negligent  in  failing  to  notify  consignee  of  arrival  of  perishable  goods  on  legal 
holiday  on  which  by  general  custom  of  locality  all  business  is  suspended;  Dela- 
ware Ins.  Co.  v.  S.  S.  White  Dental  Mfg.  Co.  65  L.R.A.  387,  which  holds  marine 
policy  providing  that  no  risk  shall  attach  until  amount  and  description  is  ap- 
proved and  indorsed  thereon,  not  changed  into  open  and  unrestricted  policy  cov- 
ering all  property  assured  elects  to  report,  by  adopting  agreement  fixing  uniform 
premium,  supplying  blanks  on  which  to  report  risks,  and  a  long  continued  cus- 
tom of  reporting  risks  by  assured  when  convenient,  and  their  uniform  acceptance 
l>y  insurer. 

Cited  in  notes    (13  L.  R.  A.  440)    on  custom  and  usage  as  law;    (10  L.  R.  A. 
785)  on  law  usage  and  custom  as  part  of  contract. 
A<lmissil>ility   of   evidence   in   relation    to    written   contract. 

Cited  in  Thomas  v.  Scutt,   127  N.  Y.  141,  27  N.  E.  961,  holding  evidence  not 


687  L.  K.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  393 

admissible  to  show  complete  written  contract  part  performance  of  entire  verbal 
agreement ;  Williams  v.  Searcy,  94  Ala.  364,  10  So.  632,  holding  parol  evidence 
not  admissible  to  contradict  terms  of  written  contract;  House  v.  Walch,  144 
N.  Y.  422,  39  X.  E.  327,  holding  evidence  inadmissible  to  vary  contract  relating 
to  sale  of  real  estate;  Sage  v.  Shepard  &  M.  Lumber  Co.  4  App.  Div.  294,  39  N.  Y. 
Supp.  449,  holding  principal  did  not  hold  out  agent  as  acting  for  him  in  sale 
of  lumber;  Southampton  v.  Jessup,  173  N.  Y.  89,  65  N.  E.  949,  holding  parol 
evidence  inadmissible  to  vary  unambiguous  resolution  of  town  trustees. 

Cited  in  footnote  to  Harris  v.  Sharpies,  58  L.  R.  A.  214,  which  denies  right 
under  contract  to  add  lithographer's  name  for  advertising  purposes  to  litho- 
graphed cover  design. 

Cited  in  note   (14  Eng.  Rul.  Cas.  673)   on  parol  evidence  as  to  usage  in  inter- 
pretation of  written  contracts. 
Title  of  groods   pledged. 

Cited  in  La  Fetra  v.  Glover,  10  Misc.  71,  31  N.  Y.  Supp.  150,  holding  pledgee 
acquires  no  title  if  pledger  has  none;  Williams  v.  Ashe,  111  Cal.  184,  43  Pac.  595, 
holding  purchaser  from  pledgee  takes  at  least  the  limited  title  latter  can  pass; 
Eisenberg  v.  Nichols,  22  Wash.  75,  79  Am.  St.  Rep.  917,  60  Pac.  124,  holding 
innocent  purchaser  from  retailer  of  diamonds  under  memorandum  contract  with 
wholesaler  protected  by  statute  relating  to  conditional  sale;  Kauffman  v.  Klang, 
1C  Misc.  381,  38  N.  Y.  Supp.  56,  holding  unauthorized  pledge  to  one  without 
notice  that  another  is  owner  vests  no  title  in  pledgee ;  Ludwin  v.  Barruch,  34 
Misc.  545,  69  X.  Y.  Supp.  933,  holding  owner  cannot  regain  possession  of  chattels 
pledged  by  agent  to  whom  intrusted  without  paying  advances;  Schwab  v.  Oat- 
man,  56  Misc.  398,  106  X.  Y.  Supp.  741-,  holding  buyers  not  estopped  to  assert 
their  title  against  honest  purchasers  by  following  custom  of  business  in  leaving 
goods  in  possession  of  selling  agent  until  ready  to  receive  goods  and  designate 
points  of  delivery,  where  selling  agent  obtained  advances  thereon  from  defend- 
ants. 

Cited  in  notes  (25  L.R.A. (X.S.)  778)  on  right  of  one  leaving  chattels  in  an- 
other's possession  as  against  latter's  vendees  or  creditors;  (10  Eng.  Rul.  Cas. 
533)  on  priority  between  equities  in  case  of  act  or  omission  due  to  negligence  or 
misplaced  confidence. 

4  L.  R.  A.  395,  LOVELAXD  v.  GARDXER,  79  Cal.  317,  21  Pac.  766. 
IVegrligrent     construction     and     maintenance     of     fence. 

Cited  in  Winkler  v.  Carolina  &  X.  W.  R.  Co.  126  X.  C.  372,  78  Am.  St.  Rep. 
663,  35  S.  E.  621,  holding  injury  to  stock  by  reason  of  negligently  constructed 
barbed-wire  fence  actionable;  Kuhnert  v.  Angell,  10  X.  D.  63,  88  Am.  St.  Rep. 
675,  84  X.  W.  579,  assuming,  but  not  deciding,  construction  of  barbed-wire  fence 
injuring  horse  was  negligent  and  actionable. 

Cited  in  footnotes  to  Quinn  v.  Crimmings,  42  L.  R.  A.  101,  which  denies  land- 
owner's liability  for  dangerous  condition  of  part  of  division  fence  which  adjoin- 
ing owner  has  agreed  to  maintain;  Quigley  v.  Clough,  45  L.  R.  A.  500.  which 
denies  owner's  liability  for  injury  to  person  walking  by  mistake  after  dark  against 
barbed-wire  fence  on  private  premises;  Beinhorn  v.  Griswold,  59  L.  R.  A.  771, 
which  denies  liability  of  owner  of  unfenced  land  for  death  of  trespassing  animals 
by  drinking  poisonous  liquids  used  in  his  business. 

Cited  in  notes  (12  L.R.A.  602)  on  liability  of  owner  for  injuries  by  defective 
fence;  (14  Am.  St.  Rep.  436)  on  negligent  maintenance  of  barbed-wire  fence; 
(54  Am.  St.  Rep.  514)  on  liability  for  injuries  due  to  defects  in  partition  fences. 

Disapproved  in  Foster  v.  Swope,  41  Mo.  App.  144,  but  holding  killing  of  mule 
on  highway  because  of  defendant's  dangerous  fence  actionable. 


4  L.E.A.  395]  L.  R.  A.  CASES  AS  AUTHORITIES.  688 

New   trinl. 

Cited  in  Davis  v.  Southern  P.  Co.  98  Cal.  18,  32  Pac.  646,  upholding  right  of 
trial  court  to  deny  motion  for  new  trial  on  condition  that  plaintiff  remit  part  of 
verdict;  Murray  v.  Heinze,  17  Mont.  364,  42  Pac.  1057,  holding  verdict  of  jury 
in  disregard  of  erroneous  instruction  is  against  law  and  will  be  set  aside. 

4  L.  R.  A.  396,  McCANDLESS  v.  BELLE  PLAINE  CANNING  CO.  78  Iowa,  161, 

16  Am.  St.  Rep.  429,  42  N.  W.  635. 
Bills  and  notes;   construction. 

Cited  in  Dey  v.  Ramsdell,  90  Iowa,  732,  52  N.  W.  208.  and  Lee  v.  Percival,  85 
Iowa,  641,  52  N.  W.  543,  holding  note  signed  by  persons  describing  themselves  a» 
president  and  secretary  of  corporation  is  individual  obligation  of  signers. 

Cited  in  footnotes  to  Miller  v.  Roach,  6  L.  R.  A.  71,  which  holds  note  with 
"Treasurer"  added  to  name  and  sealed  with  corporate  seal,  corporate  obliga- 
tion; Reeve  v.  First  Nat.  Bank,  16  L.  R.  A.  143,  which  holds  note  signed  with 
corporate  name  followed  by  signature  of  one  as  "Pres.",  is  note  of  corporation. 

Cited  in  notes  (19  L.R.A.  676)  on  personal  liability  of  officers  on  note  made  for 
corporation;    (48  Am.  St.  Rep.  919)   on  personal  liability  of  corporate  officers  to- 
third  persons;   (4  Eng.  Rul.  Cas.  284,  285)  on  liability  of  one  signing  bill  or  note 
as  agent. 
Parol    evidence    to    show    person    intended    to    be    bound. 

Cited  in  Mathews  v.  Dubuque  Mattress  Co.  87  Iowa,  248,  19  L.  R.  A.  678,  54 
N.  W.  225,  holding  note  signed  "Dubuque  Mattress  Co.,  John  Kapp.  Pt.",  imports 
personal  obligation  of  signer,  and  parol  evidence  is  inadmissible  to  show  contrary 
intention;  Wiera  v.  Treese,  27  Okla.  777,  117  Pac.  182,  holding  admissible  parol 
evidence  to  show  that  officers  of  corporation  executed  note  with  intention  of 
binding  themselves  personally. 

Cited  in  notes  (6  L.R.A.  40)  on  inadmissibility  of  parol  evidence  to  show  in- 
tention of  parties  to  contract;  (20  L.  R.  A.  706)  on  admissibility  of  extrinsic 
evidence  to  show  liability  as  maker  of  note. 

Distinguished  in  Hunt  v.  Listenberger,  14  Ind.  App.  323,  42  X.  E.  240,  holding 
indorsement  of  warrant  with  partnership  name,  and  by  one  describing  himself 
as  agent,  binds  the  firm. 

Disapproved  in  effect  in  Swarts  v.  Cohen,  11  Ind.  App.  23,  38  N.  E.  536,  hold- 
ing note  signed  by  name  of  corporation,   followed  by  one  describing  himself  as 
president,  is  ambiguous,  and  parol  evidence  is  admissible  to  explain. 
Mistake   in    signature    to   note   reformed    in    equity. 

Cited  in  Capital  Sav.  Bank  &  T.  Co.  v.  Swan,  100  Iowa,  722,  69  N.  W.  1065, 
holding  mistake  of  secretary  and  treasurer  of  corporation  in  signing  note  for 
company  to  precede  his  signature  with  word  "by,"  may  be  corrected  in  equity. 

4  L.  R.  A.  398,  KIMBALL  v.  GAFFORD,  78  Iowa,  65,  42  N.  W.  583. 
Receiver's  right  to  property. 

Cited  in  Gay  v.  Ray,  195  Mass.  17,  80  N.  E.  693,  holding  if  partnership  prop- 
erty insufficient  to  pay  debts  of  firm  receiver  should  turn  over  property  and' 
assets  in  his  hands  to  trustee  in  bankruptcy  subject  to  payment  of  his  fees  and 
charges;  Re  New  Glenwood  Canning  Co.  150  Iowa,  700,  130  X.  W.  800,  holding 
that  equitable  lien  is  enforcible  against  property  of  corporation  in  hands  of 
receiver. 

4  L.  R.  A.  401,  PEDEN  v.  CHICAGO,  R.  I.  &  P.  R.  CO.  78  Iowa,  131,  42  N.  W. 

625. 
Measure   of  dainag-es. 

Cited  in  Willitts  v.  Chicago,  B.  &  K.  C.  R.  Co.  88  Iowa,  289,  21  L.  R.  A.  61 1^ 


689  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  40tt 

55  X.  W.  313,  holding  difference  between  value  of  land,  including  crops,  before 
and  after  flooding,  proper  measure  of  damages;  Harvey  v.  Mason  City  &  Ft.  D. 
R.  Co.  129  Iowa,  480,  3  L.R.A.  ( N.S. )  980,  113  Am.  St.  Rep.  483,  105  N.  W.  958, 
holding  damages  for  injury  to  lands  by  flooding  found  by  ascertaining,  deprecia- 
tion in  value;  Hall  v.  Wabash  R.  Co.  141  Iowa,  253,  119  N.  W.  927,  holding  in 
ascertaining  damages  for  taking  right  of  way,  damages  to  farm  as  whole  are  to 
be  estimated  rather  than  some  particular  government  subdivisions  from  which 
right  of  way  has  been  taken. 

Cited  in  note   (57  L.  R.  A.  944)   on  what  lands  are  to  be  deemed  part  of  the 
tract   damaged   by   taking   a   portion   thereof   under   eminent   domain. 
Covenant    in    right    of    way. 

Cited  in  footnote  to  Doty  v.  Chattanooga  Union  R.  Co.  48  L.  R.  A.  1GO,  which 
holds   covenant  for  running  certain  trains  binding  on  subsequent   purchaser  of 
railroad. 
Admissions  on  previous  trial. 

Cited  in  McDermott  v.  Mahoney,  139  Iowa,  301,  115  N.  W.  32,  holding  admis- 
sions  made   for  party   appearing  in   record  of  one  trial   admissible  on   another 
trial   subject  to  explanation  that  they  were  made  by  mistake  or  without  au- 
thority. 
Declarations  of  agents. 

Cited  in  note  (131  Am.  St.  Rep.  326)  on  declarations  and  acts  of  agents  of 
carriers. 

4  L.  R.  A.  404.  HATCH  v.  LAMOS,  65  N.  H.  1,  17  Atl.  979. 
Conditional    sales. 

Cited  in  Cutting  v.  Whittemore,  72  N.  H.  Ill,  54  Atl.  1098,  upholding  right 
of  conditional  vendee  in  possession  to  mortgage  his  interest  in  the  property; 
Michelson  v.  Collins,  72  N.  H.  554,  58  Atl.  50,  holding  that  vendor  may  re- 
cover unpaid-for  goods  from  donee  of  conditional  vendor;  National  Cash  Register 
Co.  v.  Wapples,  52  Wash.  660,  101  Pac.  227,  holding  rights  of  conditional  vendee 
before  rescission  transferable  subject  to  rights  of  vendor. 

4  L.  R.  A.  406,  COHEN  v.  NEW  YORK,  113  N.  Y.  532,  10  Am.  St.  Rep.  506, 

21   N.  E.  700. 

Affirmed  on  new  trial  in  128  N.  Y.  595,  27  N.  E.  1074. 
Obstructions  in  and  use  of  street  or  highway. 

Followed  in  Frank  v.  Warsaw,  198  N.  Y.  467,  31  L.R.A.  (N.S.)  678,  92  N.  E.  17, 
holding  peanut  roaster  in  street,  an  unlawful  obstruction. 

Cited  in  Ladoga  v.  Linn,  9  Ind.  App.  20,  36  N.  E.  159,  holding  storage  of  dray 
in  public  street  for  unreasonable  time  a  nuisance;  People  ex  rel.  Thompson  v. 
Brookfield,  6  App.  Div.  399,  39  N.  Y.  Supp.  673,  holding  hackman  not  per- 
mitted to  use  portions  of  public  streets  for  hack  stand;  Lawton  v.  Olmstead,  40 
App.  Div.  546,  58  N.  Y.  Supp.  36,  holding  piled  logs  in  highway  a  nuisance  ren- 
dering owner  liable  for  injury  caused  by  them;  Murphy  v.  Leggett,  29  App.  Div. 
312,  51  N.  Y.  Supp.  472,  holding  owner  liable  for  injuries  caused  by  permanent 
platform  in  street;  Bradford  v.  Self,  21  App.  Div.  153,  47  N.  Y.  Supp.  508, 
holding  evidence  tending  to  show  length  of  time  truck  had  been  unlawfully  left 
in  street  admissible;  Studeor  v.  Gouverneur,  15  App.  Div.  230,  44  N.  Y.  Supp. 
122,  holding  village  not  negligent  in  permitting  vehicles  to  stand  on  street  in 
front  of  shops:  Simis  v.  Brookfield,  13  Misc.  571.  34  N.  Y.  Supp.  695,  dissolv- 
ing injunction  restraining  removal  of  obstructions  in  street;  Wells  v.  Brook- 
lyn, 9  App.  Div.  64,  41  N.  Y.  Supp.  143.  Reversing  16  Misc.  315,  38  N.  Y.  Supp. 
L.R.A.  Au.  Vol.  I. — 44. 


4  L.R.A.  406]  L.  R.  A.  CASES  AS  AUTHORITIES.  690 

309,  holding  city  liable  for  injuries  caused  by  show  case  permanently  fastened 
to  post  in  street  without  permission;  Sullivan  v.  McManus,  19  App.  Div.  168, 
45  X.  Y.  Supp.  1079,  holding  livery-stable  proprietors  liable  for  injuries  by  col- 
lision with  wagon  left  in  street;  Brinkman  v.  Eisler,  40  X.  Y.  S.  R.  866,  16  N. 
Y.  Supp.  154,  holding  recovery  cannot  be  had  for  erection  of  unlawful  awn- 
ing over  sidewalk;  Murphy  v.  Suburban  Rapid  Transit  Co.  40  N.  Y.  S.  R.  229, 
15  N.  Y.  Supp.  837,  holding  rapid-transit  company  liable  for  injuries  due  to 
loose  plank;  Hoey  v.  Gilroy,  37  N.  Y.  S.  R.  756,  14  N.  Y.  Supp.  159,  holding 
shed  obstruction  in  city  street  cannot  be  validated  by  ordinance;  Hyland  v. 
Burns,  10  App.  Div.  386,  41  N.  Y.  Supp.  873,  holding  stone  pile  in  street  line 
a  nuisance;  Howard  v.  Brooklyn,  30  App.  Div.  221,  51  N.  Y.  Supp.  1058,  holding 
city  not  liable  for  injuries  to  traveler  by  bicycle  on  sidewalk  because  it  failed 
to  pass  ordinance  forbidding  such  use;  Delaware,  L.  &  W.  R.  Co.  v.  Buffalo,  65 
Hun,  468,  20  N.  Y.  Supp.  448,  holding  question  whether  bridge  abutments 
unnecessarily  obstructed  street  not  removed  by  consent  of  city;  Delaware,  L. 
&  W.  R.  Co.  v.  Buffalo,  4  App.  Div.  567,  38  N.  Y.  Supp.  510,  holding  city  may 
remove  obstruction  of  pier  and  embankment  constituting  foundation  of  bridge 
over  street;  Stedman  v.  Rome,  88  Hun,  281,  34  N.  Y.  Supp.  737,  holding  city'* 
negligence  in  maintaining  bridge  7  inches  above  sidewalk  is  for  jury;  Costicb 
v.  Rochester,  68  App.  Div.  630,  73  N.  Y.  Supp.  835,  holding  punitive  damages 
not  recoverable  for  inundation  by  water  course  swelled  by  overflow  sewer;  Coa- 
tello  v.  State,  108  Ala.  53,  35  L.  R.  A.  306,  18  So.  820,  sustaining  criminal 
prosecutions  for  maintaining  fruit  and  candy  stands  on  sidewalk  of  public 
street;  Pennsylvania  Coal  Co.  v.  Chicago,  181  111.  309,  53  L.  R.  A.  230,  54  N.  E. 
825  (dissenting  opinion),  majority  holding  that  railway  companies  not  en- 
titled to  injunction  restraining  hack  stand  permitted  by  city  at  station;  Scan- 
Ion  v.  Wedger,  156  Mass.  466,  16  L.  R.  A.  395,  31  N.  E.  642  (dissenting 
opinion),  majority  holding  that  voluntary  spectator  injured  by  unauthorized 
display  of  fireworks  in  highway  cannot  recover;  Kalteyer  v.  Sullivan,  18  Tex. 
Civ.  App.  494,  46  S.  W.  288,  holding  injunction  will  lie  in  favor  of  abutting 
owner  to  restrain  the  closing  of  public  alley;  Fifield  v.  Phoenix,  4  Ariz.  288,  24  L. 
R.  A.  432,  36  Pac.  916,  holding  city  not  liable  for  injuries  by  explosion  of  fire- 
works in  public  street  permitted  by  public  officer;  Ladoga  v.  Linn,  9  Ind.  App. 
17,  36  N.  E.  159,  holding  verdict  of  jury  that  horse  took  fright  at  dray  left 
standing  in  public  street  sustained  by  evidence;  Farley  v.  New  York,  152  X. 
Y.  225,  57  Am.  St.  Rep.  511,  46  N.  E.  506,  holding  knowledge  by  policeman  of 
storage  of  truck  on  public  street  for  several  months  imputable  to  city;  People 
€x  rel.  Van  Xorder  v.  Sewer,  Water  &  Street  Commission,  90  App.  Div.  557, 
86  N.  Y.  Supp.  445,  denying  hackman's  riglit  to  carry  on  business  in  streets  of 
village  without  license;  Donovan  v.  Pennsylvania  Co.  61  L.  R.  A.  144,  57  C.  C.  A. 
366,  120  Fed.  219,  upholding  right  of  railway  company  to  enjoin  hackmen  from 
congregating  upon  sidewalk  and  around  doors  of  station;  Pettit  v.  Grand  Junc- 
tion, 119  Iowa,  358,  93  X.  W.  381,  upholding  action  against  municipality  for 
damages  and  abatement  of  nuisance  for  erection  of  public  buildings  in  dedi- 
cated street;  Richmond  v.  Smith,  101  Va.  168,  43  S.  E.  345,  holding  temporary 
carnival  platform  erected  in  street  nuisance  per  se;  Longnecker  v.  Wichita  R. 
&  Light  Co.  80  Kan.  422,  102  Pac.  492,  holding  individual  has  no  right  to  keep 
horses  lodged  in  street  nor  to  use  street  as  addition  to  barn  for  storing  vehicles: 
Bevis  v.  Vanceburg  Teleph.  Co.  121  Ky.  185,  89  S.  W.  126,  holding  telephom 
company  without  right  to  erect  poles  so  as  to  interfere  with  or  render  danger- 
ous use  of  highway  by  public  for  travel;  Com.  v.  Morrison,  197  Mass.  205,  14 
L.R.A.(X.S.)  197,  125  Am.  St.  Rep.  338,  83  X.  E.  415,  holding  one  keeping  lunch 


691  L-  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  406 

wagon   in  street  at  night  not   protected  by  municipal  ordinance  from  prosecu- 
tion for  obstruction  to  travel  on  public  way;   United  Restaurant  &  Realty  Co. 
v.  Schulte,  67  Misc.  635,  124  N.  Y.  Supp.  835,  holding  owner  or  tenant  of  prem- 
ises abutting  on  street  cannot  use  street  space  for  his  own  private  gain,  hence 
lessee    of   store    in    hotel    building   cannot   complain    if   lessor   grants    exclusive 
privilege  of  maintaining  cab  stand  in  front  of  hotel;  Landau  v.  New  York,  180 
N.  Y.  54,  105  Am.  St.  Rep.  709,  V2  N.  E.  631,  holding  city  liable  for  explosion  of 
fire  works  on  public  street  where  board  of  aldermen  grants  permission  to  discharge 
them;  Godfrey  v.  New  York,  104  App.  Div.  365,  93  N.  Y.  Supp.  899,  holding  city 
jointly  liable  with  contractor  for  injury  resulting  from  failure  to  properly  guard 
paving   material   which   city   gave   contractor   permission   to   place   in   roadway; 
Johnson  v.  New  York,  309  App.  Div.  829,  96  N.  Y.  Supp.  754,  holding  city  liable 
for  consequences  of  unauthorized  act  of  board  of  alderman  in  permitting  automo- 
bile speed  trials  on  highway;  De  Agramonte  v.  Mt.  Vernon,  112  App.  Div.  294, 
98  N.  Y.  Supp.  454,  holding  a  municipality  not  liable  for  negligence  of  one  it  has 
licensed  to  give  a  fire  works  display  in  a  city  park;    Parks  v.  New  York,  111 
App.  Div.  840,  98  N.  Y.  Supp.  94,  holding  city  liable  for  negligence  of  abutting 
landowner  in  erecting  bridge  over  excavation  in  sidewalk  which  city  permitted 
landowner  to  make;   Sweet  v.  Perkins,  315  App.  Div.  788,  101  N.  Y.  Supp.  163 
<dissenting  opinion),  as  to  what  is  lawful  use  of  highway  by  adjacent  propri- 
etor;   Frank   v.  Warsaw,   116   App.   Div.   625,   101   N.   Y.   Supp.  938    (dissenting 
opinion),  on  liability  of  municipality  for  injury  in  consequence  of  unlawful  use 
of  or  obstruction  in  street;  Mansfield  v.  Xew  York,  119  App.  Div.  201,  104  N.  Y. 
Supp.   386,  holding   wooden  awning  extending  over  sidewalk   and   supported  by 
posts  in  sidewalk  nuisance,  and  city  liable  for  injury  to  person  caused  by  truck 
striking  post  and  causing  awning  to  fall;  Warden  v.  New  York,  123  App.  Div. 
737,  108  N.  Y.  Supp.  305,  holding  that  placing  of  contractor's  tool  box  on  side- 
walk  is  public  nuisance,  and  that  it  is  no  answer  to  charge  of  nuisance  that 
even  with  obstruction  in  highway  there  is  room  for  pedestrians,  nor  that  obstruc- 
tion is  not  fixture;  "Tolkon  v.  Reimer  Co.  125  App.  Div.  696,  110  N.  Y.  Supp. 
129,  holding  obstruction  of  street  for  purpose  of  vending  wares  constitutes  un- 
lawful encroachment  thereon;  Radichel  v.  Kendall,  121  Wis.  563,  99  N.  W.  348, 
holding  street  may  be  rendered  unsafe  for  public  use  so  as  to  charge  municipality 
with  consequences  by  long  continued  use  thereof  for  purpose  of  storing  vehicles 
or  other  objects  therein. 

Cited  in  footnotes  to  Copland  v.  Seattle,  65  L.R.A.  333,  which  denies  liability 
of  city  for  death  of  one  killed  by  fall  of  material  from  building  in  process  of 
construction  under  permit  from  city;  Temby  v.  Ishpeming,  69  L.R.A.  618,  which 
denies  liability  of  city  for  injuries  to  traveler  by  fall  of  billboard  insecurely 
fastened  by  abutting  owner. 

Cited  in  notes  (39  L.  R.  A.  650,  653,  678)  on  municipal  power  over  nuisances 
affecting  highways  and  waters;  (36  L.  R.  A.  610)  on  power  of  municipal  corpo- 
rations to  define,  prevent,  and  abate  nuisances;  8  L.  R.  A.  829;  14  L.  R.  A.  557) 
on  obstruction  of  street  or  sidewalk  for  business  or  building  purposes;  (10  L.  R. 
A.  474)  on  liability  of  municipality  for  permitting  street  obstruction;  (15  Am. 
St.  Rep.  845,  847;  19  L.R.A.(N.S.)  508;  20  L.R.A.(N.S.)  612,  737)  on  liability  of 
municipality  for  defects  or  obstructions  in  streets;  (25  L.R.A.(N.S-)  401,  404) 
on  power  of  municipality  to  grant  or  lease  space  on  street  or  sidewalk;  (32 
L.R.A. (N.S.)  896)  on  liability  of  municipality  licensing  obstructions;  (16  Am. 
St.  Rep.  209)  on  obstruction  of  street  or  highway;  (125  Am.  St.  Rep.  350)  on 
grant  by  city  of  right  to  use  streets  and  sidewalks  for  private  purpose. 

Distinguished  in  Robert  v.  Powell,  24  Misc.  243,  52  X.   Y.  Supp.  918,  holding 


4  L.R.A.  406]  L.  R.  A.  CASES  AS  AUTHORITIES.  692 

carriage  stone  on  edge  of  street  not  a  common  nuisance  for  maintenance  of 
which  owner  liable  for  injuries;  Lechner  v.  Newark,  19  Misc.  456,  44  N.  Y.  Supp. 
556,  holding  village  not  liable  for  injury  in  bicycle  collision  on  sidewalk  because 
of  ordinance  relating  to  its  use  by  bicycles;  Toomey  v.  Albany,  38  N.  Y.  S.  IL 
92,  14  N.  Y.  Supp.  572,  holding  allegation  did  not  disclose  that  city  was  lia- 
ble for  injuries  to  one  run  into  by  coasting  party;  Fifield  v.  Phoenix,  4  Ariz.  288r 
24  L.R.A.  430,  36  Pac.  9] 6,  where  case  was  not  upon  theory  city  was  guilty  of 
maintaining  nuisance;  Buckley  v.  New  York,  135  App.  Div.  514,  120  N.  Y.  jBupp^ 
423,  holding  excavation  in  street  for  purpose  of  repairing  break  in  sewer  not 
nuisance  per  se  in  which  city  by  authorizing  or  permitting  it,  becomes  partner; 
Collender  v.  Reardon,  138  App.  Div.  745,  12.3  X.  Y.  Supp.  587,  holding  that  pres- 
ence in  street  of  licensed  push  cart  peddler  is  not  contributory  negligence  per  se. 
What  is  proximate  online  of  injury. 

Cited  in  Murphy  v.  Leggett,  164  N.  Y.  127,  58  N.  E.  42,  holding  condition  of 
platform  and  steps  in  street  proximate  cause  of  injury;  Mars  v.  Delaware  &  H. 
Canal  Co.  54  Hun,  630,  8  N.  Y.  Supp.  107,  holding  railway  not  liable  for  in- 
jury caused  by  engine  maliciously  moved  from  siding  onto  main  track;  Postal 
Teleg.  Cable  Co.  v.  Zopfi,  93  Tenn.  375,  24  S.  W.  633,  holding  telegraph  pole 
left  in  street  near  platform  upon  which  child  fell  proximate  cause  of  injury; 
McFarlane  v.  Sullivan,  99  Wis.  363,  74  N.  W.  559,  holding  proximate  cause  of 
injury  was  not  stone  in  highway,  but  breaking  of  line  by  which  horse  was  driv- 
en; Leeds  v.  New  York  Teleph.  Co.  64  App.  Div.  488,  72  N.  Y.  Supp.  250,  hold- 
ing striking  of  wire  passed  around  ancient  chimney  from  which  brick  fell 
concurrent  negligence;  Leeds  v.  New  York  Teleph.  Co.  178  N.  Y.  124,  70  N.  E. 
219,  Reversing  79  App.  Div.  124,  80  N.  Y.  Supp.  114,  holding  telephone  com- 
pany not  liable  for  injury  due  to  derrick  striking  wire  attached  to  chimney, 
causing  latter  to  fall;  Williams  v.  San  Francisco  &  N.  W.  R.  Co.  6  Cal.  App.  725, 
93  Pac.  122,  holding  railroad  company  liable  for  causing  death  of  person,  whose 
horse,  frightened  by  train,  ran  away,  buggy  colliding  with  wood  pile  placed  in 
highway  by  company  and  deceased  being  thrown  to  ground;  Wheeler  v.  Ft. 
Dodge,  131  Iowa,  581,  9  L.R.A.  (X.S.)  153,  108  N.  W.  1057,  holding  whether  allow- 
ing wire  in  street  upon  which  performer  made  "slide  for  life"  was  proximate 
cause  of  plaintiff's  injury  by  being  struck  by  performer  whose  harness  gave  way 
causing  performer  to  fall,  question  for  jury;  Frank  v.  Warsaw,  198  N.  Y.  468, 
31  L.R.A.(N.S.)  676,  92  N.  E.  17,  holding  presence  of  steam  peanut  roaster  and 
popcorn  heater  in  street  proximate  cause  of  plaintiff's  injury  by  explosion  of 
boiler  thereof;  Kurlauchick  v.  Sklamberg,  56  Misc.  476,  107  N.  Y.  Supp.  117, 
holding  use  of  sidewalk  amounting  to  nuisance  by  reason  of  which  injury  results, 
constitutes  proximate  cause  of  injury;  Frank  v.  Warsaw.  116  App.  Div.  631,  101 
N.  Y.  Supp.  947  (dissenting  opinion),  as  to  when  injuries  are  within  rule  of 
proximate  cause. 

Distinguished  in  Van  Cleef  v.  Chicago,  240  111.  326,  23  L.R.A. (N.S.)  643,  130 
Am.  St.  Rep.  275,  88  N.  E.  815,  Affirming  144  111.  App.  494,  holding  negligence 
in  construction  of  steps  to  street  show  was  proximate  cause  of  one  hurt  by  being 
crowded  off;  Stafford  v.  Canavan  Bros.  Co.  135  App.  Div.  891,  120  N.  Y.  Supp. 
314,  holding  leaving  of  root  of  tree  near  to  cable  of  engine  used  in  drawing  ex- 
cavated material  up  out  of  excavation  was  not  proximate  cause  of  killing  of 
worker  in  cut  by  root  being  caught  by  cable  and  thrown  upon  him. 
Vltrn  vires  acts. 

cited  in  Lancaster  v.  Reisner,  14  Lane.  L.  Rev.  196,  holding  city  cannot  sell 
right  to  use  public  street  for  hack  stand;  Delaware,  L.  &  W.  R.  Co.  v.  Buffalo, 
158  N.  Y.  273,  53  N.  E.  44,  holding  city  has  no  power  to  surrender  half  of 
street  to  use  of  railroad  for  street  crossing;  Odell  v.  Bretney,  38  Misc.  605.  78". 


693  L.  E.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  409 

X.  Y.  Supp.  67,  holding  city  cannot  license  special  hack  stands  in  front  of 
liotel  with  consent  of  proprietors;  Speir  v.  Brooklyn,  139  N.  Y.  13,  21  L.  R.  A. 
645,  36  Am.  St.  Rep.  664,  34  N.  E.  727,  Affirming  45  N.  Y.  S.  R.  264,  18  X.  V. 
Supp.  170,  and  46  X.  Y.  S.  R.  562,  19  N.  Y.  Supp.  665,  holding  city  liable  for 
injuries  resulting  from  explosion  of  fireworks  under  permit  from  mayor;  Utica 
v.  Utica  Teleph.  Co.  24  App.  Div.  367,  48  N.  Y.  Supp.  916,  holding  city  can 
restrain  telephone  company  from  erecting  poles;  Mahon  v.  New  York,  10  Misc. 
666,  31  N.  Y.  Supp.  676,  holding  interference  by  park  commissioners  with  car- 
rying out  contract  with  city  authorized  abandonment  of  contract. 

Cited  in  notes  (30  Am.  St.  Rep.  406),  on  liability  of  cities  for  ultra  vires  acts  of 
officers  and  agents;    (34  Am.  St.  Rep.  27)    on  municipal  liability  for  torts  not 
sanctioned  by   charter. 
Joint  and   several   liability   of  joint   tort-feasors. 

Cited  in  Demarest  v.  Forty-second  Street,  M.  &  St.  X.  Ave.  R.  Co.  104  App. 
Div.  505,  93  X.  Y.  Supp.  663,  holding  allegation  that  injury  was  due  solely 
to  defendent's  negligence  would  not  defeat  recovery  against  defendant,  though 
negligence  of  another  contributed  to  injury. 

4  L.  R.  A.  409,  MIXTY  v.  UNIOX  P.  R.  CO.  2  Idaho,  471,  21  Pac.  660. 
Master's  duty  to  employees. 

Cited  in  footnotes  to  Smith  v.  Erie  R.  Co.  59  L.  R.  A.  302,  which  holds  com- 
pany bound,  as  to  employees  riding  on  trains,  to  exercise  reasonable  care  to 
maintain  safe  track  and  roadbed;  Duntley  v.  Inman,  P.  &  Co.  59  L.  R.  A.  785, 
which  denies  liability  for  failure  to  furnish  better  belt  shifter  if  one  furnished 
under  proper  use. 
Presumption  of  negligence. 

Cited  in  Xational  Biscuit  Co.  v.  Wilson,  169  Ind.  447,  82  N.  E.  916,  holding 
that  when  employee  is  injured  while  operating  freight  elevator,  mere  happening 
of  accident  raises  no  presumption  and  cannot  serve  as  proof  of  master's  negli- 
gence; Xewhouse  v.  Kanawha  &  W.  V.  R.  Co.  62  W.  Va.  564,  59  S.  E.  1071, 
holding  suspension  of  wire  cables  across  track  of  railroad  so  low  as  to  obstruct 
track  and  passage  of  train,  constitutes  negligence  per  se. 

Cited  in  footnote  to  Duntley  v.  Inman,  P.  &  Co.  59  L.  R.  A.  785,  which  holds 
want  of  care  not  shown  by  breaking  of  piece  of  machinery  causing  servant's 
death. 

Cited  in  note  ( 113  Am.  St.  Rep.  1007 )  on  presumption  of  negligence  from  hap- 
pening of  accident  causing  personal  injuries. 
Servant's   notice   of   defects. 

Cited  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Parker,  154  Ind.   155,  56  N.  E. 
86,   holding  complaint  against   railroad   tor  injury  to   employee  from  negligent 
construction  of  sidetrack  must  allege  employee  was  without  notice  of  defect. 
FellOTT   servants. 

Cited  in  note  ( 5  L.  R.  A.  735 )  on  who  are  fellow  servants. 
Assumption    of   risk. 

Cited  in  Zienke  v.  Northern  P.  R.  Co.  8  Idaho,  65,  66  Pac.  828,  on  assumption 
of  risk;  Goure  v.  Storey,  17  Idaho,  363,  105  Pac.  794,  holding  laborer  who,  while 
using  wheelbarrow  to  transport  building  stone  in  building,  was  struck  by  handles 
thereof  when  it  tipped  and  thrown  down  stairway  shaft  and  injured  assumed 
risk  of  such  accident. 

Cited  in  note  (4  L.R.A. (X.S.)  849)  on  servant's  assumption  of  obvious  risks 
arising  from  master's  negligence. 


4  L.R.A.  409]  L.  R.  A.  CASES  AS  AUTHORITIES.  694 

Burden  of  proof  of  contributory  ueg-ligeuce. 

Cited  in  Haner  v.  Northern  P.  R.  Co.  7  Idaho,  309,  62  Pac.  1028,  holding  it 
error  to  instruct  that  burden  of  proof  was  on  defendant  to  establish  contributory 
negligence  on  part  of  plaintiff. 

Disapproved  in  effect  in  Adams  v.  Bunker  Hill  &  S.  Min.  Co.  12  Idaho,  645, 
11  L.R.A.(N.S-)  850,  89  Pac.  624,  denying  arguendo  that  burden  of  proof  is  on. 
plaintiff  to  show  absence  of  contributory  negligence  on  his  part. 

4  L.  R.  A.  413,  RICHMOND  v.  MISSISSIPPI  MILLS,  52  Ark.  30,  11  S.  W.  960. 
"When   conveyance   construed   us   assignment    for   benefit   of   creditors. 

Cited  in  Appolos  v.  Brady,  1  C.  C.  A.  301,  44  U.  S.  App.  209,  49  Fed.  403; 
Fecheimer  v.  Robertson,  53  Ark.  106,  13  S.  W.  423;  Robson  v.  Tomlinson,  54 
Ark.  234,  15  S.  W.  456;  Wood  v.  Adler-Goldman  Commission  Co.  59  Ark.  275r 
27  S.  W.  490;  Adler-Goldman  Commission  Co.  v.  Phillips,  63  Ark.  52,  37  S.  W. 
297,  Westchester  F.  Ins.  Co.  v.  Blackford,  2  Ind.  Terr.  375,  51  S.  W.  978;  Apollos 
v.  Staniforth,  3  Tex.  Civ.  App.  506,  22  S.  W.  1060,  —  holding  test  is  whether 
intention  of  parties  to  devest  debtor  of  title,  and  make  appropriation  of  prop- 
erty to  raise  fund  to  pay  debts;  Westchester  F.  Ins.  Co.  v.  Blackford,  2  Ind^ 
Terr.  373,  51  S.  W.  978,  holding  assignment  contemplates  intervention  and  agency 
of  trustee,  though  none  be  named  in  deed;  Fecheimer  v.  Robertson,  53  Ark. 
104,  105,  13  S.  W.  423,  holding  test  whether  successive  mortgages  con- 
stitute assignment  is  whether  they  are  impressed  with  trust  char- 
acter, so  other  creditors  can  call  grantee  to  account  for  proceeds; 
Box  v.  Goodbar,  54  Ark.  8,  14  S.  W.  925,  construing  absolute  conveyance  to 
raise  fund  to  pay  debts,  grantee  being  named  as  trustee,  is  assignment,  and 
void  as  not  executed  according  to  law;  Marshall  v.  Livingston  Nat.  Bank,  11 
Mont.  363,  28  Pac.  312,  holding  chattel  mortgage  with  power  of  immediate  sale, 
and  providing  for  payment  of  surplus,  after  satisfaction  of  debt  secured,  to 
mortgagor,  is  assignment;  Cribb  v.  Hibbard,  S.  B.  &  Co.  77  Wis.  205,  46  N.  W. 
168,  holding  successive  chattel  mortgages  not  covering  all  of  debtor's  property, 
and  without  collusion  between  mortgagees,  not  assignment;  Byrd  v.  Perry,  7 
Tex.  Civ.  App.  388,  26  S.  W.  749,  holding  mortgage  reserving  to  grantors  any 
surplus  remaining  after  payment  of  debt  secured,  and  not  conveying  all  of 
debtor's  property,  not  assignment;  Grimes  Dry  Goods  Co.  v.  Malcolm,  164  U. 
S.  487,  41  L.  ed.  525,  17  Sup.  Ct.  Rep.  158;  Raimvater-Boogher  Hat  Co.  v. 
Malcolm,  2  C.  C.  A.  479,  10  U.  S.  App.  249,  51  Fed.  737,  holding  conveyance 
to  be  void  if  grantor  pays  certain  debts  within  sixty  clays,  otherwise  grantee 
to  sell,  and  apply  proceeds  to  payment  of  debts  in  order  named,  not  assignment ; 
Smead  v.  Chandler,  71  Ark.  515,  76  S.  W.  1066.  holding  deed  of  trust  to. 
secure  debt,  to  be  void  upon  payment  of  debt,  a  mortgage;  Tapp  v.  Williams.  83 
Ark.  185,  103  S.  W.  161,  holding  instrument  executed  by  debtors  with  intention, 
to  transfer  property  to  trustee  for  purpose  of  raising  fund  to  pay  their  debts  is 
assignment  for  benefit  of  creditors;  Brecht  v.  Law  Union  &  Crown  Ins.  Co.  153 
Fed.  456,  on  distinction  between  mortgage  and  assignment  for  benefit  of  cred- 
itors. 

Cited  in  note  (10  L.  R.  A.  709)  on  what  conveyances  operate  as  assignment 
for  creditors. 

Distinguished  in  Hershiser  v.  Higman,  31  Neb.  539,  28  Am.  St.  Rep.  527,  48 
N.  W.  272,  holding  several  chattel  mortgages,  having  priority  in  order  given,  to 
secure  bona  fide  criditors,  not  assignment;  Blass  v.  Goodbar,  65  Ark.  519,  520, 
47  S.  W.  630,  holding  pledge  of  stock  of  goods  as  security  for  debt,  not  assign- 
ment, when  creditor  not  to  act  as  trustee;  Smith  v.  Moore,  2  Ind.  Terr.  132,  48 
S.  W.  1025,  holding  mortgage  by  failing  debtor  of  all  his  property  to  four 


G95  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  420 

creditors,  and  reserving  surplus  after  payment  of  indebtedness,  not  assignment; 
Marquese  v.  Felsenthal,  58  Ark.  296,  24  S.  W.  493,  holding  mortgage  of  entire 
stock  of  goods  not  construed  as  assignment  because  debt  payable  on  demand,, 
and  grantor  unable  to  continue  business;  Smith  v.  Empire  Lumber  Co.  57  Ark. 
226,  21  S.  W.  225,  construing  instrument  in  form  of  mortgage,  conveying  nearly 
all  of  insolvent  debtor's  property,  to  be  mortgage  in  fact,  where  evidence 
showed  such  was  intention  of  parties. 
—  Embracing  other  instrument. 

Cited  in  Daugherty  v.  Bogy,  3  Ind.  Terr.  219,  53  S.  W.  542,  holding  mortgage 
and  contract  made  in  transaction  between  debtor  and  creditor  constituted  one 
transaction  fraudulent  as  operating  to  hinder,  delay  and  defraud  another  cred- 
itor. 
Evidence   to    vary    effect    of   conveyance. 

Cited  in  Apollos  v.  Staniforth,  3  Tex.  Civ.  App.  506,  22  S.  W.  1060,  and  Box 
v.  Goodbar,  54  Ark.   8,   14  S.  W.  925,   holding  deed  absolute  in   form  .may   be 
shown  to  have  been   intended  as  a  mortgage,  or  that  one  conditional   in  form 
was  intended  to  be  absolute. 
General   assignment   with   preferences. 

Cited  in  note  (37  L.  R.  A.  338)  on  whether  preference  by  mortgage  or  sale  ia 
assignment. 

Distinguished  in  Worthen  v.  Griffith,  59  Ark.  572,  43  Am.  St.  Rep.  50,  28  S. 
W.  286,  holding  confession  of  judgment  in  contemplation  of  general  assignment 
does  not  affect  validity. 

4  L.  R.  A.  420,  DOYLE  v.  CHICAGO,  ST.  P.  &  K.  C.  R.  CO.  77  Iowa,  607,  42" 

N.    W.    555. 
Liability   of   master    for   negligence    of    employees. 

Cited  in  Keatley  v.  Illinois  C.  R.  Co.  103  Iowa,  289,  72  N.  W.  545,  holding 
railroad  liable  for  injury  from  omission  of  foreman  of  iron  gang,  having  con- 
trol of  speed  of  train  across  bridge,  to  signal  engineer  to  slow  up,  if  condition 
of  bridge  required  it. 

Cited  in  footnote  to  Pennsylvania  R.  Co.  v.  Martin,  55  L.  R.  A.  361,  which, 
denies  duty  of  railroad  company  to  use  care  to  avoid  injury  to  one  using  track 
for  own  affairs. 

Cited  in  note   (8  L.  R.  A.  464)   on  liability  of  master  for  injuries  from  negli- 
gence of  servant. 
Unanticipated    resnlts    of   negligent    acts. 

Cited  in  Texas  &  P.  R.  Co.  v.  Carlin,  60  L.  R.  A.  465,  49  C.  C.  A.  610,  111  Fed. 
781,  holding  if  negligent  act  likely  to  result  in  familiar  injury,  fact  that  result 
produced  was  peculiar  and  unanticipated  will  not  relieve  from  liability;  Scagel 
v.  Chicago,  M.  &  St.  P.  R.  Co.  83  Iowa,  388,  49  N.  W.  990,  holding  party  liable 
for  results  produced  by  natural  causes,  although  unexpected  and  unusual,  if 
they  could  have  been  prevented  by  ordinary  diligence;  Osborne  v-  Van  Dyker 
113  Iowa,  559,  54  L.  R.  A.  368,  85  N.  W.  784,  holding  party  liable  for  injurjr 
to  bystander  from  blow  aimed  at  horse,  if  striking  horse  was  negligent  under  ex- 
isting circumstances,  although  result  not  anticipated;  Terre  Hante  &  I.  R.  Co. 
v.  Fowler,  154  Ind.  691,  48  L.  R.  A.  534,  56  N.  E.  228,  holding  railroad  in 
constructing  trestle  required  to  provide  against  such  dangers  as  can  rea- 
sonably be  foreseen;  Goe  v.  Northern  P.  R.  Co.  30  Wash.  G58,  71  Pac.  182,. 
holding  master's  negligence  question  for  jury,  where  laborer  fell  from  unsafe 
boom  striking  lever  of  engine  which  started  machinery  by  which  he  was  hurt; 
Memphis  Consol.  Gas  &  Electric  Co.  v.  Creighton,  106  C.  C.  A.  98,  183  Fed.  556,. 


4  L.R.A.  420]  L.  R.  A.  CASES  AS  AUTHORITIES.  696 

holding  gas  company  liable  to  roomer  injure1 }  by  explosion  of  gas  escaping  from 
defective  pipe;  Williamson  Iron  Co.  v.  McQueen,  144  Ala.  276,  40  So.  306,  holding 
in  action  to  recover  damages  for  death  of  person  by  being  burned  by  molten 
matter  which  issued  from  furnace  which  gave  way,  that  because  negligence  in 
allowing  furnace  to  be  loaded  with  improper  material  produced  effect  never 
before  observed  was  not- reason  for  saying  servant  was  in  exercise  of  due  care; 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Jackson,  96  Ark.  474,  31  L.R.A.(X.S.)  986,  132 
S.  W.  206,  holding  railroad  liable  for  injury  to  boy  on  platform  from  his  being 
-crushed  by  swinging  car  door  on  passing  train;  Waiters  v.  Waterloo,  126  Iowa. 
204,  101  N.  W.  871,  holding  where  plaintiff,  who  was  subject  to  dizziness  by 
reason  of  previous  fall  on  sidewalk,  fell  upon  sidewalk  again  in  following  month 
that  cause  of  second  fall  was  icy  condition  of  walk;  Burk  v.  Creamery  Package 
Mfg.  Co.  126  Iowa,  734,  106  Am.  St.  Rep.  377,  102  N.  W.  793,  holding  test  is, 
whether  ordinary  prudence  would  have  suggested  to  person  sought  to  be  charged 
with  negligence  that  his  act  or  omission  would  probably  result  in  injury  to 
someone;  Dean  v.  Kansas  City,  St.  L.  &  C.  R.  Co.  199  Mo.  411,  97  S.  W.  910, 
holding  railroad  company  liable  to  section  hand  struck  upon  knee  and  injured 
by  piece  of  coal  hurled  from  tender  of  locomotive  of  passing  train. 

Cited  in  footnotes  to  Texas  &  P.  R.  Co.  v.  Carlin.  00  L.  R.  A.  462,  which  sus- 
tains liability  for  negligence  likely  to  produce  injury,  though  particular  injury 
not  anticipated;  Osborne  v.  Van  Dyke,  54  L.  R.  A.  367,  which  holds  one  unlaw- 
fully beating  liable  for  injury  by  unintentional  blow  on  bystander;  West  Vir- 
ginia C.  &  P.  R.  Co.  v.  State,  61  L.  R.  A.  574.  which  holds  railroad  liable  for 
injury  to  bystander  by  car  broken  loose  from  train,  and  thrown  from  right  of 
way  by  collision  with  another  car  at  foot  of  decline. 

Cited  in  notes  (8  L.  R.  A.  82)  on  liability  fo-  injuries  produced  by  negli- 
gence; (4  L.  R.  A.  852)  on  duty  of  master  to  inform  servant  of  extraordinary 
risks. 

Distinguished  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Berry,  152  Ind.  619,  46 
L.  R.  A.  57,  53  N.  E.  415,  holding  evidence  insufficient  to  show  iron  pin  thrown 
by  tender  of  rapidly  moving  train  was  in  position  from  which  it  might  reason- 
ably be  anticipated  it  would  be  so  thrown;  Reilly  v.  Chicago  &  N.  W.  R.  Co. 
122  Iowa,  527,  98  N.  W.  464,  holding  railway  company  not  liable  for  injury  by 
train  to  employee  of  independent  contractor,  due  to  negligence  of  latter. 
Fellow  servants. 

Cited  in  footnote  to  Gulf,  C.  &  S.  F.  R.  Co.  v.  Blolm,  4  L.  R.  A.  764,  which 
holds  locomotive  engineer  and  fireman  fellow  servants. 
Hazards  of  railway  operation. 

Cited  in  Dunn  v.  Chicago  R.  I.  &  P.  R.  Co.  130  Iowa,  593,  6  L.R.A.  (N.S.)  458, 
107  N.  W.  616,  8  A.  &  E.  Ann.  Cas.  226  (dissenting  opinion)   on  peculiar  hazards 
of  railway  operation  to  which  employee  exposed. 
.\<-u-i  iu-e-:i»'«-  as  question  for  jndgre  or  jury. 

Cited  in  Hill  v.  Atchison,  T.  &  S.  F.  R.  Co.  81  Kan.  385,  —  L.R.A.(N.S.)   — , 
]05  Pac.  447    (dissenting  opinion)   on  trespass  by  judge  on  functions  of  jury  in 
negligence  case. 
Presumption  of  negligence. 

Cited  in  note  (113  Am.  St.  Rep.  1006)  on  presumption  of  negligence  from  hap- 
pening of  accident  causing  personal  injuries  as  between  master  and  servant. 

4  L.  R.  A.  422,  FREEMAN  v.   CITIZENS  NAT.  BANK,   78  Iowa,   150,   42  N. 

W.  632. 
Rights  against  bank  of  collection. 

Cited  in  Lnited  States  Nat.  Bank  v.  Westervelt,  55  Neb.  429,  75  N.  W.  857. 


697  L.  B.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  429 

holding  bad  faith  not  shown  by  taking  security  for  its  own  claim,  where  bank 
performs  duty  as  mere  collecting  agent  and  neither  conceals  nor  misrepresents 
facts  to  principal. 

Cited  in  footnotes  to  Armstrong  v.  Boyertown  Nat.  Bank,  9  L.  R.  A.  553,  which 
denies  right  of  receiver  or  creditors  of  bank  crediting  owner  with  draft  re- 
ceived for  collection  to  demand  proceeds  from  collecting  bank;  Corn  Exch.  Bank 
v.  Farmers  Nat.  Bank,  7  L.  R.  A.  559,  which  holds  only  first  of  several  banks  re- 
ceiving check  for  collection,  agent  of  payee;  Pickle  v.  People's  Nat.  Bank,  7  L.  R. 
A.  93,  which  holds  acceptance  of  check  necessary  to  give  right  of  action  against 
bank;  Garrison  v.  Union  Trust  Co.  70  L.R.A.  615,  which  holds  rule  that  bank 
making  collection  is  entitled  to  lien  on  proceeds  to  balance  account  with  corre- 
spondent as  against  title  of  original  transmitting  bank  not  changed  by  fact 
that  bank  to  which  draft  was  sent  by  correspondent  for  collection  was  insolvent 
when  receiving  notice  of  collection  from  third  bank  to  which  draft  was  forwarded 
for  collection  and  credit. 

Cited  in  notes  (7  L.R.A.  858;  77  Am.  St.  Rep.  615,  628)  on  duties,  rights,  obli- 
gations, and  liabilities  of  bank  for  collection;  (7  L.R.A.  845)  on  ownership  of 
paper  indorsed  in  blank. 

Distinguished  in  Bern  v.  Kellogg,  54  Neb.  564,  74  N.  W.  844,  holding  failure  to 
collect  draft  during  more  than  fortnight,  without  communication  to  payee,  fol- 
lowed by  taking  conveyance  of  drawee's  property  in  satisfaction  of  bank's  debts, 
bad  faith  in  addition  to  negligence. 

4  L.  R.  A.  425,  CLEMENT  v.  NATIONAL  BANK,  61  Vt.  298,  17  Atl.  717. 
\Vlint    governs    description    of   land. 

Cited  in  Graves  v.  Mattison,  67  Vt.  634,  32  Atl.  498,  holding  distance  must 
yield  to  fixed  boundary  of  building;  Chapman  v.  Longworth,  71  Vt.  230,  44  Atl. 
o,")2,  holding  description  in  former  deed  will  be  read  into  deed  which  refers  to  it 
for  description. 
Covenants    in    deeds. 

Cited  in  Curtis  v.  Brannon,  98  Tenn.  157,  38  S.  W.  1073,  holding  covenant  of 
seizin  broken  at  instant  it  is  made, 

Cited  in  footnote  to  Hodges  v.  Wilkinson,  17  L.  R.  A.  545,  which  holds  action 
for  breach  of  implied  warranty  of  title  of  personalty  sold,  after  its  taking  by 
third  person,  not  premature. 

Cited  in  note  (6  L.  R.  A.  107)   on  covenants  definite  and  construed. 

4  L.  R.  A.  429,  BROOKS  v.  FISCHER,  79  Cal.  173,  21  Pac.  652. 
Constitutional   law. 

Cited  in  Davies  v.  Los  Angeles,  86  Cal.  41,  24  Pac.  771,  holding  charters  framed 
or  adopted  under  Constitution  subject  to  general  laws;  People  ex  rel.  Graves  v. 
McFadden,  81  Cal.  500,  15  Am.  St.  Rep.  66,  22  Pac.  851,  holding  that  constitu- 
tionality of  special  provisions  not  affecting  whole  act  will  not  be  passed  on 
where  question  relates  to  validity  of  whole. 

Distinguished  in  Mullan  v.  State,  114  Cal.  586,  34  L.  R.  A.  264,  46  Pac.  670, 
holding  employment  of  attorney  to  represent  state  in  special  matter  not  au- 
thorized by  concurrent  resolution  of  legislature  confirming  appointment  by  gov- 
ernor; People  v.  Gunn,  85  Cal.  244,  24  Pac.  718,  holding  municipality  must  bfr 
made  party  to  proceeding  to  test  validity  of  its  charter ;  People  v.  Toal,  85  Cal. 
334,  24  Pac.  603,  holding  inferior  courts  must  be  established  by  legislature  by 
laws  passed  and  approved  in  constitutional  method;  Security  Sav.  Bank  &  T.  Co. 
v.  Hinton,  97  Cal.  217,  32  Pac.  3,  holding  power  of  taxation  necessarily  implied 
in  authorization  of  freeholder's  municipal  charters  by  legislature,  where  consti- 


4  L.R.A.  429]  L.  R.  A.  CASES   AS  AUTHORITIES.  698 

tution  prohibits  legislature  from  taxing  municipal  corporations  for  municipal 
purposes;  Mullan  v.  State,  114  Cal.  586,  34  L.R.A.  264,  46  Pac.  670,  holding  that 
legislature  cannot  enact  laws  in  any  other  mode  than  by  bill. 


Distinguished  in  Milner  v.  Reibenstein,  85  Cal.  594,  24  Pac.  935,  denying  right 
of  city  justice  of  the  peace  to  draw  additional  salary  as  ex  officio  judge  of  munici- 
pal court. 
Membership    of    legislative    departments. 

Cited  in  McDonald  v.  Dodge,  97  Cal.  114,  31  Pac.  909,  holding  mayor  not  part 
t>f  legislative  department  of  city;  Harrison  v.  Roberts,  145  Cal.  180,  78  Pac.  5^7; 
holding  mayor  not  part  of  legislative  department  of  city  and  county. 

4  L.  R.  A.  432,  NEW  YORK,  L.  E.  &  W.  R.  CO.  v.  EXCHES,  127  Pa.  316,  14 

Am.  St.  Rep.  848,  17  Atl.  991. 
Boarding  moving   cars. 

Cited  in  Eikenberry  v.  St.  Louis  Transit  Co.  103  Mo.  App.  451,  86  S.  W.  360, 
holding  boarding  of  moving  street  car  not  to  be  negligence  per  se. 

Cited  in  note   (17  Am.  St.  Rep.  429)   on  contributory  negligence  in  alighting 
from  moving  train. 
Liability  for  injuries  to  passengers. 

Cited  in  Bertram  v.  Peoples  R.  Co.  154  Mo.  666,  55  S.  W.  1040  (dissenting 
opinion),  majority  holding  sustaining  judgment  that  passenger  was  injured  by 
being  jerked  beyond  side  of  street  car  in  starting  it. 

Cited  in  notes    (21   L.  R.  A.  359)    on  injuries  in  getting  on  and  off  railroad 
trains;    (8  L.  R.  A.  674)   on  contributory  negligence  of  passenger. 
Instructions   to   Jury. 

Cited  in  Neff  v.  Harrisburg  Traction  Co.  192  Pa.  505,  44  W.  N.  C.  404,  73  Am. 
"St.  Rep.  825,  43  Atl.  1020,  holding  jury  should  be  instructed  that  passenger 
alighting  from  moving  car  cannot  recover;  Ranck  v.  Brackbill,  21  Lane.  L.  Rev. 
108,  holding  that  court  should  instruct  jury  as  to  legal  effect  that  should  be 
given  to  evidence;  Mahler  v.  Hartman,  27  Lane.  L.  Rev.  317,  holding  that  court 
Tnust  instruct  jury  as  to  effect  of  contributory  negligence  on  plaintiff's  right 
to  recover. 

4  L.  R.  A.  434,  ORTHWEIN  v.  THOMAS,   127  111.  554,   11   Am.   St.  Rep.   159, 

21  N.  E.  430. 

Report  of  later  appeal  in  Brooklyn  v.  Orthwein,  140  111.  623,  31  N.  E.  111. 
X£stoppel By    recitals    in     deed. 

Cited  in  Guilfoil  v.  Arthur,  158  111.  607,  41  1ST.  E.  1009,  holding  trustee  estopped 
by  recitals  of  deed  under  which  he  enters  into  possession,  and  cannot  claim  ad- 
versely to  title;  Smith  v.  Young,  160  111.  174,  43  X.  E.  486,  holding  deed  describ- 
ing lot  conveyed  with  reference  to  certain  plat  estops  grantor  and  grantee  to 
deny  existence  of  easement  in  alley  designated  on  plat;  Despain  v.  Wagner,  163 
111.  600,  45  N.  E.  129,  holding  grantor's  description  of  grantee  in  deed  as  her 
husband,  estops  subsequent  grantees  from  denying  parties  were  husband  and 
wife;  Chloupek  v.  Perotka,  89  Wis.  556,  46  Am.  St.  Rep.  858,  62  N.  W.  537, 
holding  grantee  in  deed  correcting  prior  deed  estopped^  as  against  grantor,  from 
claiming  title  under  first  deed  to  land  not  described  in  second;  Xewton  v.  Xewton, 
52  App.  Div.  99,  64  N.  Y.  Supp.  981,  questioning  whether  grantee  accepting  deed 
expressly  excepting  certain  property  described  in  previous  conveyance,  estopped  to 
claim  title  to  excepted  premises;  McXaughton  v.  Burke,  63  Xeb.  707,  89  X.  W. 
274,  denying  right  of  grantee  subject  to  mortgage  to  deny  validity  of  mortgage 


699  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  434 

while  claiming  tinder  deed;  Trustees  of  Schools  v.  Wilson,  215  111.  356,  74  N.  E. 
375,  holding  claimants  of  title  by  connected  chain  of  title  from  maker  of  mort- 
gage warranted  in  relying  on  rentals  in  mortgage  that  mortgagor  had  good  title, 
where  mortgagees  accepted  such  mortgage;  Langley  v.  Kesler,  57  Or.  288,  110 
Pac.  401,  holding  that  claimants  under  husband's  will  are  not  estopped  by  deed 
to  husband  and  wife  reciting  that  it  was  made  to  correct  prior  deed  to  husband. 

Cited  in  notes  (13  Am.  St.  Rep.  590)  on  estoppel  by  recitals  in- bonds;  (11  Eng. 
Rul.  Cas.  72)  on  extent  of  estoppel  by  deed. 

Distinguished  in  Wellman  v.  Miner,  179  111.  338,  53  N.  E.  609,  holding  release 
of  mortgage  not  deed,  and  hence  recitals  that  residue  of  property  is  held  as  se- 
curity for  unpaid  part  of  debt  not  acknowledgment  of  debt,  which  would  toll 
statute  of  limitations;  Cobb  v.  Oldfield,  151  111.  541,  42  Am.  St.  Rep.  263,  38 
N.  E.  142,  holding  claimant  to  title  in  possession  who  purchases  outstanding 
claim  of  title  may  show  grantor  had  no  title. 
By  record. 

Cited  in  notes   (11  L.  R.  A.  310)   on  judgment  against  executor  not  conclusive 
on  heirs;   (7  L.R.A.  581)  on  res  judicata;   (12  Am.  St.  Rep.  200)  on  res  judicata; 
(29  Am.  St.  Rep.  792)   on  who  are  estopped  by  judgments;    (112  Am.  St.  Rep. 
28)   on  effect  of  judgment  against  tenant  as  res  judicata. 
Presumption  of  legitimacy  of  children. 

Cited  in  Learning's  Estate,  25  Pa.  Co.  Ct.  442;  Adger  v.  Ackerman,  52  C.  C. 
A.  570,  115  Fed.  126,  holding  every  intendment  is  to  be  indulged  in  favor  of 
legitimacy  of  offspring;  Jones  v.  Gilbert,  135  111.  31,  25  N.  E.  566,  holding  burden 
is  on  party  attacking  validity  of  marriage,  and  consequent  legitimacy  of  chil- 
dren; Eddy's  Estate,  8  Pa.  Dist.  R.  701,  holding  evidence  to  overcome  presump- 
tion of  legitimacy  must  be  conclusive;  Wile's  Estate,  6  Pa.  Super.  Ct.  441,  41 
W.  N.  C.  574,  Affirming  6  Pa.  Dist.  R.  385,  19  Pa.  Co.  Ct.  606,  15  Lane.  L.  Rev. 
384,  holding  divorce  will  be  presumed  in  aid  of  presumption  of  legitimacy  of 
•child  by  second  marriage;  Bethany  Hospital  Co.  v.  Hale,  64  Kan.  371,  67  Pac. 
848,  holding  presumption  of  legitimacy  of  child  born  in  wedlock  not  overthrown 
•by  assertions  and  recognition  by  putative  father;  Stone  v.  Salisbury,  209  111. 
€5,  70  N.  E.  605,  holding  question  of  legitimacy  of  child  conceded  in  partition 
suit  not  res  judicata  in  action  involving  other  property  rights;  Jackson  v.  Phalen, 
237  Mo.  150,  140  S.  W.  879,  holding  that  law  presumes  that  second  marriage  is 
legal  and  that  children  are  legitimate;  Walker  v.  Roberson,  21  Okla.  299.  97 
Pac.  609,  holding  "child"  or  "children"  in  statute,  deed  of  conveyance,  or  will 
means,  prima  facie,  legitimate  child  or  children;  Learning's  Estate,  10  Pa.  Dist. 
R.  392,  holding  every  intendment  in  favor  of  marriage  and  legitimacy  of  children 
will  be  made  where  seduction  of  mother  under  promise  of  marriage  is  followed 
ty  long  cohabitation  and  repute  and  registration  of  children  in  father's  name. 

Cited  in  notes  (8  L.R.A.  102)  on  presumption  of  legitimacy  of  child  born 
in  wedlock;  (36  L.R.A.(X.S-)  258)  on  proof  establishing  bastardy  of  married 
woman's  child;  (12  Am.  St.  Rep.  101,  102;  22  Am.  St.  Rep.  900)  on  presumption 
*>f  legitimacy  of  child  born  in  wedlock;  (126  Am.  St.  Rep.  265)  on  proof  of  ille- 
gitimacy of  child  born  in  wedlock. 
Husband  and  wife  as  joint  tenants. 

Cited  in  Thornburg  v.  Wiggins,  135  Ind.  178,  22  L.  R.  A.  44,  41  Am.  St.  Rep. 
422,  34  N.  E.  999,  holding  judgment  against  either  husband  or  wife  not  lien  upon 
land  conveyed  to  them  jointly. 

Cited  in  note  (30  L.  R.  A.  328)  on  disposition  or  encumbrance  of  entirety 
property  as  respects  rights  of  survivorship. 


4  L.R.A.  434]  L.  R.  A.  CASES  AS  AUTHORITIES.  700 

l.jn-ln-s:    burden   of   proof. 

Cited  in  Anderson  v.  Northrop,  30  Fla.  638,  12  So.  318,  holding  burden  on 
imrtv  charging  laches  to  show  adversary  had  knowingly  foreborne  to  assert  rights. 
Laches  not  imputable  to  party  in  possession  of  real  estate. 

Cited  in  Shaw  v.  Allen,  184  111.  79,  56  N.  E.  403;  Shaw  v.  Allen,  85  111.  App. 
26,  holding  owner  in  possession  not  chargeable  with  laches  in  not  commencing 
action  to  remove  subsequent  cloud  on  title;  Boyd  v.  Boyd,  163  111.  615,  45  N.  E. 
118,  holding  laches  cannot  be  imputed  to  beneficiary  of  trust  in  possession  in 
action  to  establish  resulting  trust;  Wright  v.  Stice,  173  111.  577,  51  N.  E.  71, 
holding  possession  and  payment  of  taxes  by  life  tenant  not  presumed  to  be  for 
purpose  of  creating  title  in  remainderman  in  bar  of  his  own  title. 
"When  cause  of  action  accrues  anil  statute  of  limitation  beg-iiis  to  run. 

Cited  in  Anderson  v.  Northrop,  30  Fla.  632,  638,  12  So.  318;  Lewis  v.  Barnhart, 
145  U.  S.  73,  36  L.  ed.  628,  12  Sup.  Ct.  Rep.  772;  Turner  v.  Hause,  199  111.  472r 
65  N.  E.  445;  Beattie  v.  Wbipple,  154  111.  281,  40  N.  E.  340;  Mettler  v.  Miller, 
129  111.  643,  22  N.  E.  529,  —  holding  statute  does  not  run  against  remainderman 
during  continuance  of  life  estate;  Ferguson  v.  Herr,  64  Neb.  659,  90  N.  W.  625, 
holding  action  in  ejectment  not  maintainable  by  heirs  until  expiration  of  in- 
tervening tenacy  by  curtesy;  Webster  v.  Pittsburg,  78  Ohio  St.  97,  15  L.R.A. 
(N.  S.)  1157,  84  N.  E.  592;  Blair  v.  Johnson,  215  111.  562,  74  N.  E.  747,— holding 
statute  of  limitations  does  not  run 'against  remaindermen  until  death  of  life 
tenant. 

Cited  in  notes  (19  L.  R.  A.  847)  on  adverse  possession  against  remaindermen 
and  owners  of  future  estates;  (7  L.  R.  A.  658)  on  statute  of  limitations  does  not 
begin  to  run  until  right  of  action  accrues;  (10  L.R.A.(N.S-)  89)  on  effect  of 
husband's  life  estate  upon  adverse  possession  against  wife;  (13  Am.  St.  Rep. 
78,  79;  14  Am.  St.  Rep.  638)  on  running  of  limitations  against  reversioner. 

Distinguished  in  Ogden  v.  Leland  University,  49  La.  Ann.  196,  21  So.  685, 
holding  in  action  by  heirs  to  recover  undivided  half  of  land  as  against  grantee  of 
joint  owner,  who  had  attempted  to  convey  entire  estate,  defendant  entitled  to 
plead  prescription  of  ten  years;  Chase  v.  Chase,  20  R.  I.  207,  37  Atl.  804,  holding 
heirs  guilty  of  laches  in  not  commencing  action  to  set  aside  deed  during  posses- 
sion of  life  tenant,  where  grantees  could  not  be  restored  to  former  position. 
Rig'hts  and  estoppels  of  privies. 

Cited  in  Hood  v.  Morgan,  47  W.  Va.  822,  35  S.  E.  911,  holding  privies  are 
those  who  are  partakers,  or  have  an  interest  in  any  action  or  thing,  or  any  rela- 
tion to  another;  Pearce  v.  Rice,  142  U.  S.  39,  35  L.  ed.  930,  12  Sup.  Ct.  Rep.  130. 
holding  transferee  of  notes  pending  action  on  guaranty  succeeds  to  rights  of 
guaranty;  Holt  Mfg.  Co.  v.  Collins,  154  Cal.  273,  97  Pac.  516,  holding  vendor  de- 
livering possession  of  property  to  another  under  conditional  sale  contract  not 
privy  bound  by  judgment  against  such  other;  Towle  v.  Quant«,  246  111.  573,  92 
N.  E.  967,  holding  that  heir  of  land  purchased  from  assignee  of  tax  deed  is  es- 
topped to  deny  affidavit  of  holder  of  certificate  of  purchase ;  Smith  v.  White,  63 
W.  Va.  475,  14  L.R.A.  (N.S.)  532,  60  S.  E.  404,  holding  privy  in  estate  not  bound 
by  judgment  against  him  from  whom  he  derives  his  estate  after  he  derives  it. 

4  L.  R.  A.  440,  RAYMOND  v.  VAUGHAN,  128  111.  256,  15  Am.  St.  Rep.  112,  21 

N.  E.  566. 
Insanity  affecting;  rights  of  partners  or  third  parties. 

Cited  in  Jurgens  v.  Ittmann,  47  La.  Ann.  372,  16  So.  952,  holding  customers  of 
partnership  not  obliged  to  keep  themselves  informed  as  to  mental  condition  of 
partners;  Bissell  v.  Peirce,  184  111.  67.  56  N.  E.  374,  holding  agreement  between. 


701  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  445 

four  persons  in  nature  of  copartnership  in  relation  to  land,  terminated  by  in- 
sanity of  one;  Kent  v.  West,  33  App.  Div.  123,  53  N.  Y.  Supp.  244,  holding  com- 
mittee of  lunatic  cannot  make  contract  disposing  of  ward's  property;  Cresse  v. 
Loper,  72  N.  J.  Eq.  786,  65  Atl.  1003,  holding  partner  assuming  management  of 
whole  business  upon  insanity  of  co-partner  is  trustee  and  cannot  purchase  part- 
nership property  himself;  Barclay  v.  Barrie,  142  App.  Div.  673,  127  N.  Y.  Supp. 
403,  holding  that  firm  will  not  be  dissolved  on  insanity  of  partner,  unless  it  is 
permanent;  Vautier's  Estate,  18  Pa.  Dist.  R.  554,  holding  estate  of  decedent 
insane  partner  liable  for  debts  contracted  by  same  partners  between  date  of 
.adjudication  of  lunacy  and  date  when  insanity  found  to  have  commenced. 

Cited  in  note  (69  Am.  St.  Rep.  428,  429)  on  insanity  as  ground  for  dissolution 
of  partnership. 

4  L.  R.  A.  445,  RICHMAN  v.  MUSCATINE  COUNTY,  77  Iowa,  513,  14  Am.  St. 

Rep.  308,  42  N.  W.  442. 
Legislative    act    must    embrace    but    one    subject. 

Cited  in  Guaranty  Sav.  &  L.  Asso.  v.  Ascherman,  108  Iowa,  153,  78  N.  W. 
823,  holding  contracts  between  building  and  loan  associations  and  their  mem- 
bers within  subject  of  act  "relating  to  building  and  loan  association;"  Beresheim 
v.  Arnd,  117  Iowa,  90,  90  N.  W.  506,  holding  assessment  of  taxes  authorized  under 
title  providing  for  "listing." 

Cited  in  notes  (28  Am.  St.  Rep.  387)  on  statutes  embracing  only  one  subject; 
(64  Am.  St.  Rep.  75,  106)  on  sufficiency  of  title  of  statute. 
Constitutional    provisions    against    local    or   special    legislation. 

Cited  in  State  ex  rel.  West  v.  Des  Moines,  96  Iowa,  529,  31  L.  R.  A.  190,  59 
Am.  St.  Rep.  381,  65  N.  W.  818,  holding  prohibition  of  Iowa  Constitution  as  to 
local  and  special  legislation  is  absolute  as  to  enumerated  cases;  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Independent  District,  99  Iowa,  562,  68  N.  W.  881,  holding  curative 
act  legalizing  levy  of  taxes  for  school  purposes  in  particular  district  not  special 
legislation. 

Cited  in  footnotes  to  Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which 
holds  act  regulating  sheriff's  fees  for  particular  county,  local;  Hamilton  County 
v.  Rasche  Bros.  19  L.  R.  A.  584,  which  holds  statute  as  to  taxes  not  applying  to 
•all  parts  of  state  unconstitutional. 

Cited  in  notes   (7  L.R.A.  194)   on  prohibition  of  local  and  special  legislation; 
•(5  L.R.A. (N.S.)  331)  on  curative  act  as  special  legislation;   (93  Am.  St.  Rep.  110, 
]]3)    on  constitutional   inhibition  against  special  legislation  where  general  law 
-can  be  made  applicable. 
Power  to  determine  whether  general  law  applicable. 

Cited  in  Edmonds  v.  Herbrandson,  2  N.  D.  282,  14  L.  R.  A.  730,  50  N.  W. 
970,  and  Stuart  v.  Kirley,  12  S.  D.  257,  81  N.  W.  147,  holding  determination 
whether  general  law  can  be  made  applicable  to  subject  rests  with  legislature; 
St.  Louis  Southwestern  R.  Co.  v.  State,  97  Ark.  478,  134  S.  W.  970,  holding  same; 
Oklahoma  City  v.  Shields,  22  Okla.  305,  100  Pac.  559,  holding  under  constitution- 
al provision  that  no  act  shall  take  effect  until  ninety  days  after  adjournment  of 
session  at  which  passed,  unless  in  case  of  emergency,  legislature  is  sole  judge 
as  to  existence  of  emergency ;  State  ex  rel.  Smith  v.  Brown,  24  Okla.  445,  103  Pac. 
762,  holding  that  determination  by  legislature  of  what  can  be  accomplished 
by  general  or  special  law  is  not  reviewable  by  courts. 

Cited  in  note  (14  L.  R.  A.  566)  on  legislative  discretion  as  to  local  and  general 
-  statutes. 


4  L.R.A.  445]  L.  R.  A.  CASES  AS  AUTHORITIES.  702 

Presumption    In    favor    of    constitutionality    of    legislative    acts. 

Cited  in  Owen  v.  Sioux  City,  91  Iowa,  197,  59  N.  W.  3,  holding  legislative  act 
will  not  be  held  unconstitutional  unless  clearly  in  conflict  therewith;  Eckerson  v. 
Des  Moines,  137  Iowa,  475,  115  N.  W.  177,  holding  courts  will  not  interfere  on 
constitutional  grounds  unless  act  clearly  and  palpably  within  inhibition  of 
fundamental  law. 
Effect  ot  cnrative  act  upon  prior  judgment. 

Cited  in  Iowa  Sav.  &  L.  Asso.  v.  Heidt,  107  Iowa,  303,  43  L.  R.  A.  692,  70 
Am.  St.  Rep.  197,  77  N.  W.  1050,  holding  curative  act  validating  usurious  con- 
tract passed  after  decree  adjudging  contract  invalid  not  unconstitutional  as  im- 
pairing vested  right;  Ferry  v.  Campbell,  110  Iowa,  299,  50  L.  R.  A.  90,  81  N.  W. 
604,  holding  judgment  restraining  collection  of  inheritance  tax,  because  statute 
failed  to  provide  notice  of  assessment,  may  be  reversed  where  curative  act  passed 
pending  appeal;  State  ex  rel.  Lownsberry  v.  District  Ct.  102  Minn.  490,  113  X. 
W.  697,  holding  operation  of  curative  legislation  validating  contract  unaffected 
by  existing  judgment  adjudging  contract  void  and  restraining  performance 
thereof. 
AVIisit  acts  may  be  validated  by  cnrative  acts. 

Cited  in  Witter  v.  Polk  County,  112  Iowa,  391,  83  X.  W.  1041,  and  Bresser  v. 
Saarman,  112  Iowa,  727,  84  N.  W.  920,  holding  requirement  of  statute  which 
might  have  been  dispensed  with  by  legislature  when  enacted,  may  be  dispensed 
with  by  curative  act;  Shuttuck  v.  Smith,  6  N.  D.  80,  69  N.  W.  5,  holding  de- 
fective tax  levy  which  might  have  been  authorized  originally  may  be  validated 
by  curative  act;  Clinton  v.  Walliker,  98  Iowa,  660,  68  N.  W.  431,  and  Tuttle  v. 
Polk,  84  Iowa,  16,  50  N.  W.  38,  holding  legislature  may  legalize  defective  paving 
contract,  if  omission  such  as  might  have  been  dispensed  with  by  prior  statute; 
Xottage  v.  Portland,  35  Or.  551,  76  Am.  St.  Rep.  513.  58  Pac.  883,  holding  act 
covering  defective  proceeding  for  street  improvement  available  as  defense  in 
action  to  restrain  collection  of  assessment;  Thomas  v.  Portland,  40  Or.  53,  66 
Pac.  439,  holding  act  giving  right  of  action  for  cost  of  street  improvement,  after 
assessment  adjudged  invalid,  not  taking  of  property  without  due  process  of  la\v; 
Fair  v.  Buss,  117  Iowa,  166,  90  X.  W.  527,  holding  that  legislature  can  legalize 
void  act;  Gill  v.  Patton,  118  Iowa,  90,  91  X.  W.  904,  upholding  power  of  legisla- 
ture to  authorize  cities  to  correct  assessment  of  special  tax  by  reassessment; 
McSurely  v.  McGrew,  140  Iowa,  172,  332  Am.  St.  Rep.  248,  118  X.  W.  415,  holding 
legislature  generally  speaking,  may  by  subsequent  act  validate  and  confirm  pre- 
vious acts  of  corporation  otherwise  invalid;  Ida  Grove  v.  Ida  Grove  Armory  Co. 

146  Iowa,  694,  125  X.  W.  866,  holding  that  acts  of  town  council  with  relation 
to  erection  of  city  hall  were  fully  legalized  by  curative  act;  Carr  v.  District  Ct 

147  Iowa,  676,  126  X.  W.  791,  holding  that  legislature  can  legalize  school  war- 
rants; Heacock  v.  Sullivan,  70  Kan.  7-54.  79  Pac.  659,  holding  legislature  cannot  by 
curative  act  render  valid  an  unconstitutional  act;   Baucum  v.  Claiborne  Parish, 
119  La.  536,  44  So.  289,  holding  legislature  might  dispense  with  statement  of 
amount  of  tax  in  petition  of  taxpayers  for  election  as  required  by  statute  with- 
out   infringing   constitutional   provision    as   to    special    elections;    State    ex   rel. 
Richardson  v.  Larkin,  41  Tex.  Civ.  App.  265,  90  S.  W.  912,  holding  legislature 
had  power  by  special  act  to  pass  curative  act  legalizing  defective  incorporation  of 
city  already  in  existence  under  general  laws;  Allen  v.  Davenport,  65_C.  C.  A.  641, 
132  Fed.  223   (dissenting  opinion),  on  curative  legislation  validating  acts  defec- 
tive by  reason  of  omission  or  want  of  compliance  which  could  have  been  dispensed 
with  by  prior  statute. 


703  L.  K.  A.  CASES  AS  AUTHORITIES.  [4  L.K.A.  455 

Courts   not   controlled   by   previous    rulings    in   name   case. 

Cited  in  Seery  v.  Murray,  107  Iowa,  390,  77  N.  W.  1058,  holding  judge  not  re- 
quired to  indorse  or  follow  rulings  of  another  judge  sitting  in  prior  proceedings 
in  same  case;  Van  Werden  v.  Equitable  Life  Assur.  Soc.  99  Iowa,  623,  68  X.  W. 
892;  Bibbins  v.  Polk  County,  100  Iowa,  495,  69  N.  W.  1007;  Perry  v.  Baker,  61 
Neb.  843,  86  X.  W.  692,  —  holding  court  not  concluded  by  ruling  on  demurrer  to 
petition,  upon  same  question  arising  at  subsequent  stage  of  case;  Dela  Beckwith 
v.  Colusa  County,  146  Cal.  500,  80  Pac.  717,  holding  court  may  reconsider  ruling 
on  demurrer  at  any  time  prior  to  final  judgment  in  favor  of  party. 
Jurisdiction  of  county  board  of  supervisors  in  proceedings  for  drafnagre 
district. 

Cited  in  Seibert  v.  Lovell.  92  Iowa,  511,  f  1  N.  W.  197,  holding  sufficiency  of 
petition  to  confer  jurisdiction  to  be  determined  from  petition  when  filed,  with- 
out regard  to  subsequent  acts  of  petitioners;  Sim  v.  Rosholt,  16  X.  D.  81,  11 
L.R.A.(N.S.)  378,  112  N.  W.  50,  holding  jurisdiction  of  board  to  establish  drain 
having  attached  by  filing  of  sufficient  petition  retention  of  jurisdiction  could 
not  depend  upon  subsequent  act  of  petitioners. 

4  L.  R.  A.  453,  RICHARDS  v .  KNIGHT,  78  Iowa,  69,  42  N.  W.  584. 
Title    to    mortprag-ed    property    on    foreclosure. 

Cited  in  Lombardi  v.  Shero,  14  Tex.  Civ.  App.  597,  37  S.  W.  613,  holding  im- 
mature crops  are  mortgaged  with  the  land;  Re  Sullivan,  142  Fed.  621,  holding 
matured  crops  not  part  of  realty  constituting  homestead  of  bankrupt. 

Cited  in  footnotes  to  Sievers  v.  Brown.  45  L.  R.  A.  642.  which  holds  vendor  en- 
titled to  crops  planted  by  one  in  possession  after  refusal  to  comply  with  con- 
tract of  purchase;  Whithed  v.  St.  Anthony  &  D.  Elevator  Co.  50  L.  R.  A.  254, 
which  holds  purchaser  on  foreclosure  of  leased  land  entitled  to  wheat  stored  by 
tenant  for  payment  as  rent. 

Cited  in  notes  (10  L.  R.  A.  492)  on  mortgage  of  crops;  (6  L.  R.  A.  618)  on 
growing  crops;  (23  L.R.A.  452)  on  sale  or  mortgage  of  future  crops;  (15  Eng. 
Rul.  Gas.  558)  on  effect  of  custom  as  to  tenant's  right  in  waygoing  crop. 

Disapproved  in  Reilly  v.  Carter,  75  Miss.  801,  65  Am.  St.  Rep.  621,  23  So.  435, 
holding  mortgagee  after  purchase  on  foreclosure  sale  holds  as  absolute  owner 
land  and  unsevered  crops. 
Instructions  on  matters  not  proved. 

Cited  in  note  (17  Am.  St.  Rep.  252)  on  instructions  upon  matters  not  proved, 
disputed  nor  involved  in  the  case. 

4  L.  R.  A.  455,  MEREDITH  v.  KUXZE,  78  Iowa,  111,  42  N.  W.  619. 
Description  of  mortgaged  property. 

Cited  in  footnote  to  Turpin  v.  Cunningham,  51  L.  R.  A.  800,  which  holds  mort- 
gagee's rights  not  affected  as  against  subsequent  purchaser  by  change  in  color 
of  mortgaged  horse  after  mortgage  given. 

Distinguished  in  Johnson  v.  Rider,  84  Iowa,  53,  50  N.  W.  36,  holding  descrip- 
tion of  property  as  mortgagor's  "undivided  two-thirds  interest  in  any  and  all 
crops  grown"  on  certain  farm  for  designated  year,  sufficient;  Frick  v.  Fritz,  115 
Iowa.  445,  91  Am.  St.  Rep.  165,  88  X.  W.  961,  holding  mortgage  on  herd  of  cattle 
distinctly  pointed  out  therein,  not  rendered  insufficient  by  subsequently  mingling 
rierd  with  other  cattle;  Armstrong  v.  Ford,  10  Wash.  69,  38  Pftc.  866.  upholding 
mortgagee's  lien  as  against  mortgagor  on  goods  purchased  to  renew  stock  after 
sales  under  mortgage  providing  for  sale  and  replenishment  from  time  to  time. 


4  L.R.A.  455]  L.  E.  A.  CASES  AS  AUTHORITIES.  704 

4  L.  R.  A.  457,  JOSLYN  v.  KING,  27  Neb.  38,  20  Am.  St.  Rep.  656,  42  X.  \V.  7.36. 
Registered  mail. 

Cited  in  Boston  Ins.  Co.  v.  Chicago,  R.  I.  &  P.  R.  Co.  118  Iowa,  434,  59  L.  R. 
A.  801,  92  N.  W.  88,  holding  railroad  carrying  mail  under  United  States  con- 
tract, not  liable  to  sender  of  registered  mail  for  negligence. 

Cited  in  footnote  to  Ross  v.  Hawkeye  Ins.  Co.  34  L.  R.  A.  466,  which  holds 
notice  by  registered  letter  completed  by  due  registration  at  office  from  which  sent. 

4  L.  R.  A.  458,  DWELLING  HOUSE  INS.  CO.  v.  BRODIE,  52  Ark.   11,   11   S. 

W.  1016. 
Inaccuracies   in   policy. 

Cited  in  Bennett  v.  Massachusetts  Mut.  L.  Ins.  Co.  107  Tenn.  377,  64  S.  W. 
758,  holding  insured  can  recover  premiums  on  policy  issued  upon  application  in 
which  false  answers  were  written  by  medical  examiner;  Tubbs  v.  Dwelling-house 
Ins.  Co.  84  Mich.  651,  48  N.  W.  296,  holding  fire  insurance  company  cannot  avoid 
policy  for  misstatements  by  its  agent  in  application  where  correct  answer  was 
given;  Providence  Life  Assur.  Soc.  v.  Reutlinger,  58  Ark.  543,  28  S.  W.  835,  hold- 
ing life  insurance  company  cannot  defeat  policy  issued  upon  false  answer  writ- 
ten in  application  by  its  medical  examiner  if  correct  answer  was  given;  Sprott  v- 
New  Orleans  Ins.  Asso.  53  Ark.  223,  13  S.  W.  799,  holding  fire  insurance  con 
pany  cannot  defeat  policy  warranting  a  fact  known  to  be  false  by  agent  insert- 
ing it. 

Cited  in  footnote  to  Globe  Mut.  L.  Ins.  Asso.  v.  Wagner,  52  L.  R.  A.  649,  which 
holds  policy  not  avoided  by  false  statement  that  none   of  applicant's  brothers 
dead. 
Limitation  of  action  on  policy. 

Cited  in  footnote  to  Union  Central  L,  Ins.  Co.  v.  Spinks,  69  L.R.A.  264,  which 
holds  void  provision  that  suit  shall  be  brought  on  life  policy  within  period  less 
than  that  fixed  by  statute  of  limitations. 

Cited  in  note  (8  L.  R.  A.  49)   on  limitation  of  action  on  fire  insurance  policy. 
When  conditions  waived. 

Cited  in  Phoenix  Ins.  Co.  v.  Flemming,  65  Ark.  62,  39  L.  R.  A.  793,  67  Am.  St. 
Rep.  900,  44  S.  W.  464,  holding  knowledge  of  agent  that  fireworks  were  kept  for 
sale  on  insured  premises  at  time  policy  issued  must  be  shown  to  waive  for- 
feiture; German  American  Ins.  Co.  v.  Humphrey,  62  Ark.  353,  54  Am.  St.  Rep. 
297,  35  S.  W.  428,  holding  clerk  of  local  agent  cannot  waive  forfeiture  of  policy 
due  to  encumbrance;  Burlington  Ins.  Co.  v.  Kennerly,  60  Ark.  538,  31  S.  W.  155, 
holding  local  agent  cannot  waive  proof  of  loss  within  specified  time;  Hartford  F. 
Ins.  Co.  v.  Amos,  98  Ga.  535,  25  S.  E.  575,  holding  fire  insurance  company  waived 
stipulation  limiting  time  of  commencing  suit  by  promise  to  adjust  loss ;  Phoenix 
Ins.  Co.  v.  Public  Parks  Amusement  Co.  63  Ark.  202,  37  S.  W.  959,  holding  for- 
feiture waived  by  agents  of  fire  insurance  company;  King  v.  Cox,  6i>  Ark.  211, 
37  S.  W.  877,  holding  insurance  company  knew  of  and  assented  to  sale  of  prem- 
ises to  one  of  the  members  of  firm;  State  Mut.  Ins.  Co.  v.  Latourette,  71  Ark. 
247,  74  S.  W.  300,  upholding  authority  of  local  agent  to  waive  warranty  as  to 
title,  although  company  stipulates  not  to  be  bound  by  promises  not  in  contract; 
German-American  Ins.  Co.  v.  Harper,  75  Ark.  100,  86  S.  W.  817,  holding  company 
waived  forfeiture  where  it  had  notice  of  other  insurance  and  its  renewal  and 
made  no  objection  until  after  fire;  Capital  F.  Ins.  Co.  v.  Montgomery,  81  Ark. 
510,  99  S.  W.  687,  holding  warranty  that  insured  property  was  unincumbered 
waived  by  communication  to  agent  by  insured,  who  was  illiterate,  of  knowledge 
that  property  was  mortgaged;  Capital  F.  Ins.  Co.  v.  Johnson,  82  Ark.  95,  109 


705  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  458 

S.  W.  749,  holding  all  advantages  of  misrepresentations  as  to  title  and  incum- 
brances  waived  by  agreement  of  company  to  indorse  insurance  on  building  in 
new  location  to  which  moved;  Rock  Island  Plow  Co.  v.  Rankin,  89  Ark.  29,  115 
S.  W.  943,  holding  waiver  of  warranty  in  policy  may  be  proved  by  parol  evi- 
dence, and  by  analogy,  waiver  of  penalty  clause  in  contract  may  be  proved  in 
same  way;  Fidelity  &  G.  Co.  v.  Brown,  4  Ind.  Terr.  410,  69  S.  W.  915,  holding 
action  taken  by  company  upon  notice  it  had  of  accident  to  insured,  without  any 
intimation  that  it  refused  to  pay  because  of  want  of  notice,  constituted  waiver 
of  such  notice;  Leisen  v.  St.  Paul  F.  &  M.  Ins.  Co.  20  N.  D.  333,  30  LH.A.(N.S.) 
550,  127  N.  W.  837,  holding  that  insurance  company  by  issuing  policy  with 
knowledge  of  facts  rendering  void,  waives  forfeiture. 

Cited  in  notes  (13  L.R.A.(X.S.)  842)  on  effect  of  nonwaiver  agreement  on  con- 
ditions existing  at  inception  of  policy;  (16  L.R.A. (X.S.)  1240)  on  parol  evidence 
rule  as  to  varying  or  contracting  written  contracts,  as  affected  by  doctrine  of 
waiver  or  estoppel  as  applied  to  insurance  policies;  (107  Am.  St.  Rep.  135)  on 
waiver  of  provisions  of  nonwaiver  or  written  waiver  of  conditions  and  forfeitures 
in  policies. 

Distinguished  in  Parsons  v.  Lane  (Re  Millers'  &  Mfrs.'  Ins.  Co.)  97  Minn.  107, 
4  L.R.A.(X.S.)  236,  106  X.  W.  485,  7  A.  &  E.  Ann.  Gas.  1144,  where  neither  com- 
pany nor  its  agent  had  knowledge  of  conditions,  and  there  were  no  facts  upon 
which  to  base  waiver. 
Estopped  by  acts  of  agent  or  officers. 

Cited  in  New  York  L.  Ins.  Co.  v.  Rassell,  23  C.  C.  A..  54,  40  U.  S.  App.  530, 
77  Fed.  106,  holding  life  insurance  company  cannot  defend  because  facts  communi- 
cated to  agent  not  set  forth  fully  in  application;  Standard  Life  &  Acci.  Ins.  Co.  v. 
Schmaltz,  66  Ark.  597,  74  Am.  St.  Rep.  112,  53  S.  W.  49,  holding  accident  in- 
surance company  liable  for  death  due  to  overexertion  by  machinist  engaged  at  his 
trade;  Steel  v.  Phenix  Ins.  Co.  2  C.  C.  A.  467,  7  U.  S.  App.  325,  51  Fed.  719, 
holding  fire  insurance  company  cannot  defend  for  delay  in  bringing  suit  if  state- 
ments of  its  own  agents  caused  the  delay;  Germania  Ins.  Co.  v.  Bromwell,  62 
Ark.  48,  34  S.  W.  83,  holding  estoppel  and  waiver  cannot  arise  on  policy  not 
yet  issued;  Southern  Ins.  Co.  v.  Hastings,  64  Ark.  257,  41  S.  W.  1093,  holding 
insurance  company  estopped  to  set  up  false  answers  written  in  policy  by  its  own 
agent;  Franklin  L.  Ins.  Co.  v.  Galligan,  71  Ark.  299,  73  S.  W.  102,  holding  com- 
pany estopped  from  asserting  falsity  of  answers  in  application,  by  knowledge  of 
its  examining  physician  of  their  falsity;  People's  F.  Ins.  Asso.  v.  Goyne,  79  Ark. 
323,  16  L.R.A.(X.S.)  1191,  96  S.  W.  365,  9  A.  &  E.  Ann.  Cas.  373,  holding  that 
insurance  company  may  be  estopped  by  conduct  of  its  agent,  acting  within  ap- 
parent scope  of  his  authority,  from  availing  itself  of  false  answer  to  material 
question  or  other  breach  of  warranty  or  violation  of  provisions  of  policy  or  ap- 
plication, notwithstanding  clauses  to  contrary  effect  in  policy,  and  that  such 
estoppel  is  provable  by  parol. 

Cited  in  footnote  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  denies 
necessity  of  reforming  policy  misdescribing  place  where  property  is  situated 
before  bringing  action,  where  mistake  was  that  of  insurance  agent,  and  assured 
continually  resided  on  premises. 

Cited  in  notes   (16  L.  R.  A.  34)    on  effect  of  knowledge  by  insurer's  agent  of 
falsity  of  statements  in  application;   (8  L.  R.  A.  71)  fire  insurance  not  affected  by 
wrongful  acts  of  company's  agent. 
Authority  of  insjnrance  n«rent. 

Cited  in  Fidelity  Mut.  L.  Ins.  Co.  v.  Bussell,  75  Ark.  29,  86  S.  W.  814,  holding 
collecting   agent   without    authority   to  grant   extension  of  time  of  payment  of 
L.R.A.  Au.  Vol.  I.— 45. 


4  L.R.A.  458]  L.  R.  A.  CASES  AS  AUTHORITIES.  700 

overdue  premium  note;  Phooenix  Assur.  Co.  v.  Boyette,  77  Ark.  51,  90  S.  W.  284, 
holding  agent  with  power  to  issue  policy  on  all  cotton  in  warehouse  has  power  to 
issue  policy  on  portion  thereof;  Remmel  v.  Witherington,  76  Ark.  375,  88  S.  W. 
967,  holding  general  agent  of  insurance  company  responsible  for  act  of  special 
agent  who  procured  premium  note  from  illiterate  person  by  fraud. 

4  L.  R.  A.  462,  VAHLBERG  v.  KEATON,  51  Ark.  534,  14  Am.  St.  Rep.  73,  11 

S.  W.  878. 
What    constitutes     usury. 

Cited  in  Ellenbogen  v.  Griffey,  55  Ark.  272,  18  S.  W.  126,  questioning,  but  not 
deciding,  whether  reasonable  charge  for  examining  title  and  drafting  securities 
constitutes  usury;  Richardson  v.  Shattuck,  57  Ark.  352,  21  S.  W.  478,*  holding  re- 
quiring borrower  to  furnish  abstract  of  title  and  to  record  mortgage,  in  addition 
to  highest  legal  interest,  not  usury. 

Cited  in  note  (46  Am.  St.  Rep.  189,  197,  199)  on  what  transactions  are  usurious. 
Reservation  of  interest  in  advance. 

Cited  in  Bank  of  Newport  v.  Cook,  60  Ark.  290,  29  L.  R.  A.  763,  46  Am.  St. 
Rep.  171,  30  S.  W.  35,  and  Baird  v.  Millwood,  51  Ark.  549,  11  S.  W.  881,  holding 
reserving  interest  in  advance  not  usury;  First  Xat.  Bank  v.  Waddell.  74  Ark.  251, 
85  S.  W.  417,  4  A.  &  E.  Ann.  Cas.  818,  holding  agreement  for  monthly  pay- 
ments of  interest  is  merely  taking  interest  in  advance,  which  is  not  usurious. 

Cited  in  note  (29  L.  R.  A.  764)  on  lawfulness  of  taking  interest  in  advance. 
Bonus  to  borrower's  agent. 

Cited  in  Dryfus  v.  Burnes,  53  Fed.  410,  and  Baird  v.  Millwood,  51  Ark.  549, 
11  S.  W.  881,  holding  commissions  paid  by  borrower  to  his  agent  form  no  part 
of  interest. 

Cited  in  note  (24  Am.  St.  Rep.  239)  on  bonus  paid  to  agent  as  usury. 
Bonus    to   lender's   agent. 

Cited  in  Barger  v.  Taylor,  30  Or.  237,  47  Pac.  618;  Short  v.  Pullen,  63  Ark. 
386,  38  S.  W.  1113;  Hughes  v.  Griswold,  82  Ga.  308,  9  S.  E.  1092;  Hendrickson 
v.  Godsey,  54  Ark.  157,  15  S.  W.  193,  —  holding  reservation  of  excessive  bonus 
by  lender's  agent  without  lender's  knowledge,  not  usury;  Brown  v.  Archer,  62 
Mo.  App.  288,  holding  compensation  of  loan  association's  agent  by  exactions  over 
legal  interest  usurious;  American  Mortg.  Co.  v.  Woodward,  83  S.  C.  528.  65 
S.  E.  739,  holding  receipt  of  excessive  and  unreasonable  commissions  by  agent  of 
lender  with  knowledge,  actual  or  constructive,  of  principal,  renders  transaction 
usurious,  if  such  commissions  and  interest  added  exceed  lawful  rates. 

Cited  in  footnote  to  Clarke  v.  Havard,  51  L.  R.  A.  499,  which  holds  usurious,, 
commission  paid  by  borrower  to  lender's  agent. 

Cited  in  note  (19  L.R.A.(N.S.)  392)  on  commissions  charged  borrower  by 
lender's  agent  as  usury. 

Distinguished  in  Martin  v.  Adams,  66  Ark.  15,  48  S.  W.  494,  holding  payment 
of  bonus  to  broker  not  acting  for  lender  and  without  lender's  knowledge  not 
usury. 

American    laws    modeled    after    English    statutes. 

,  Cited  in  Little  Rock.&  Ft.  S.  R.  Co.  v.  Oppenheimer,  64  Ark.  295,  44  L.  R.  A. 
362,  43  S.  W.  150  (dissenting  opinion)  as  to  adoption  of  construction  by  Eng- 
lish courts  of  English  statute  on  adopting  statute. 

Construction  of  constitution  according  to  legislative  construction  there- 
of. 

Limited  in  Griffin  v.  Rhoton,  85  Ark.  95,  107  S.  W.  380,  holding  judges  war- 


707  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  <JO 

ranted   in   looking   to   extraneous   matters   for   aid   in   construing   constitutional 
provisions  only  when  examination  of  Constitution  leaves  doubt. 

4  L.  R.  A.  466,  HANDY  v.  GLOBE  PUB.  CO.  41  Minn.  188,   16  Am.  St.  Rep. 

695,  42  N.  W.  872. 
Sunday   labor. 

Cited  in  Stewart  v.  Thayer,  168  Mass.  520,  60  Am.  St.  Rep.  407,  47  N.  E.  420, 
holding  contract  for  band  performances  some  of  which  were  to  be  before  sunset 
on  Sunday  void;  Publishers;  George  Knapp  &  Co.  v.  Culbertson,  152  Mo.  App. 
153,  133  S.  W.  55,  holding  contract  for  advertisement  in  Sunday  papers,  void; 
Telfer  v.  Lambert,  79  N.  J.  L.  301,  75  Atl.  779,  holding  void,  entire  contract  to 
finish  certain  work,  most  of  which  is  to  be  done  on  Sunday. 

Cited  in  footnotes  to  State  v.  McBee,  60  L.  R.  A.  638,  which  holds  pumping  oil 
well  on  Sunday  work  of  necessity,  if  permanent,  material  loss  and  injury  would 
otherwise  result;  Arnheiter  v.  State,  58  L.  R.  A.  392,  which  holds  sale  of  meat 
by  butcher  to  customers  on  Sunday  not  work  of  necessity  or  charity;  Dugan 
v.  State,  9  L.  R.  A.  321,  which  holds  pilot  on  boat  carrying  pleasure  parties 
on  Sunday,  punishable;  First  M.  E.  Church  v.  Donnell,  46  L.  R.  A.  858,  which 
sustains  subscription  to  church  indebtedness  made  on  Sunday;  State  v.  Collett, 
64  L.R.A.  204,  which  holds  repairing  of  belt  in  factory  on  Sunday  so  as  to  pre- 
vent two  hundred  hands  from  losing  work  on  the  following  day. 

Cited  in  note  (30  Am.  St.  Rep.  27)  on  work  which  may  be  done  on  Sunday. 
What  are  illegal  contracts. 

Cited  in  Denning  v.  Yount,  62  Kan.  221,  50  L.  R.  A.  105,  61  Pac.  803,  holding 
repeal  of  ordinance  requiring  license  fee  from  real-estate  agents  does  not  vali- 
date agreement  for  commission  prior  thereto;  Fleming  v.  Greene,  48  Kan.  650, 
20  Pac.  11,  holding  notes  given  for  excess  of  invoice  fraudulently  made  by  col- 
lusion with  payee  void;  Crichfield  v.  Bermudez  Asphalt  Paving  Co.  174  HI. 
484,  42  L.  R.  A.  353,  51  N.  E.  552,  holding  agreement  to  obtain  contracts 
from  city  for  paving  company  void;  Sawyer  v.  Sanderson,  113  Mo.  App.  245,  88 
S.  W.  151,  holding  contract  made  in  violation  of  express  statutory  provisions 
are  inoperative  and  void;  Cohen  v.  Conrad,  110  Minn.  209,  124  N.  W.  992,  hold- 
ing that  void  stipulations  for  enforcement  of  payment  of  rent  are  no  defense 
to  action  for  rent. 

Cited  in  notes  in  12  L.R.A.  121,  on  inability  to  ratify  illegal  contract;    (117 
Am.  St.  Rep.  498,  505)   on  contracts,  consideration  for  which  has  partly  failed, 
or  is  partly  illegal. 
Pleading-   illegality   of  a   contract. 

Cited  in  Rucker  v.  Bolles,  67  C.  C.  A.  30,  133  Fed.  862,  holding  that  where  the 
plaintiff  on  his  part  admitted  the  invalidity  of  the  illegal  contract,  on  trial  the 
defendant  need  not  plead  the  same;  Frankel  v.  Killer,  16  N.  D.  392,  113  N.  W. 
1067,  15  A.  &  E.  Ann.  Cas.  265,  holding  that  the  illegality  of  a  contract,  relied 
upon  as  a  defense,  must  be  pleaded,  unless  it  appears  so  upon  its  face  or  from 
the  plaintiff's  evidence. 
Contracts  incapable  of  ratification. 

Cited  in  note  (59  Am.  St.  Rep.  639)  on  contracts  incapable  of  ratification. 

4  L.  R.  A.  470,  SLOAN  v.  COBURN,  26  Neb.  607,  42  N.  W.  726. 
Chattel    mortgage;    when    transaction    so    construed. 

Cited  in  Musser  v.  King,  40  Neb.  898,  42  Am.  St.  Rep.  700,  59  N.  W.  744,  hold- 
ing chattel  mortgage  is  pledge  of  personal  property,  whether  written  or  oral,  to 
secure  performance  of  promise. 


4  L.R.A.  470j  L.  R.  A.  CASES  AS  AUTHORITIES.  708 

Fraud,    burden    of    proof. 

Cited  in  Blumer  v.   Bennett,   44   Neb.   879,   63   N.   W.   14,   holding  burden   on 
creditors  attacking  title  of  chattel  mortgagee  taking  immediate  possession. 
Declarations   of   grantor   in   disparagement   of   title. 

Cited  in  Armagost  v.  Rising,  54  Neb.  768,  75  N.  W.  534;  McDonald  v.  Bowman, 
40  Neb.  273,  58  N.  W.  704,  holding  proof  of  declarations  of  mortgagor  in  pos- 
session subsequent  to  execution  of  mortgage  admissible  to  show  his  intent; 
O'Hare  v.  Duckworth,  4  Wash.  475,  30  Pac.  724,  holding  declarations  of  grantor 
preceding  conveyance  competent  evidence  of  fraudulent  intent  in  its  execution. 

Distinguished  in  Kyd  v.  Cook,  56  Neb.  81,   71   Am.   St.  Rep.  661,   76  N.  W. 
524,   holding  evidence   of  declarations   of   vendor  not   in   possession,   aa   to   pur- 
pose of  conveyance,  not  admissible  against  subsequent  grantee. 
Intent  to  hinder  and  delay  creditors. 

Cited  in  Livingston  v.  Swotford  Bros.  Dry  Goods  Co.   12   Colo.  App.   333,  56 
Pac.   355,  holding  intent   participated  in  by  both  chattel  mortgagor  and  mort- 
gagee  renders   conveyance   void   as   to   creditors. 
Instructions  must  be  applicable  to  evidence. 

Cited  in  Farmers'  Loan  &  T.  Co.  v.  Montgomery,  30  Neb.  41,  46  N.  W.  214, 
holding  instruction  assuming  state  of  facts  of  which  there  is  no  evidence,  re- 
versible error. 

4  L.  R.  A.  473,  GERMANIA  INS.  CO.  v.  SWIGERT,  128  111.  237,  21  N.  E.  530. 
Retaliatory  insurance   legislation. 

Cited  in  Union  Cent.  L.  Ins.  Co.  v.  Durfee,  164  111.  194,  45  N.  E.  441,  holding 
statute  imposing  tax  on  foreign  company  enforceable,  though  there  is  no  local 
company  capable  of  doing  business  in  such  foreign  state;  State  v.  Insurance 
Co.  of  N.  A.  71  Neb.  326,  99  N.  W.  36,  holding  law,  imposing  upon  foreign  insur- 
ance companies  tax  of  same  amount  as  is  required  by  state  wherein  such  com- 
panies are  created  to  be  paid  by  insurance  companies  of  other  states  doing  busi- 
ness in  such  foreign  state,  enforceable  regardless  of  question  whether  domestic 
insurance  companies  are  doing  business  in  foreign  state  discriminating  in  favor 
of  its  own  companies. 

Cited  in  notes   (8  L.  R.  A.  131;  24  L.  R.  A.  304)   on  retaliatory  legislation. 

4  L.  R.  A.  477,  THOMAS  v.  WESTCHESTER  COUNTY,   115  N.  Y.  47,  21   N. 

E.  674. 
Payment;  what  amounts  to. 

Cited  in  Walrath  v.  Abbott,  75  Hun,  453,  27  N.  Y.  Supp.  529,  holding  assign- 
ment of  third  mortgage  not  payment  of  antecedent  debt,  where  insolvency  of 
mortgagor  unknown  to  either  party. 

Cited  in  footnote  to  Hall  v.  Stevens,  5  L.  R.  A.  802,  which  holds  debt 
paid  by  giving  and  receiving  draft  on  insolvent  bank  before  it  ceased  busi- 
ness. 

Cited  in  notes  (9  L.R.A.  263)  on  acceptance  of  check,  not  ipso  facto  payment; 
(77  Am.  St.  Rep.  629;   10  L.R.A.(N.S.)  535;  35  L.R.A.(N.S.)  30)  on  payment  by 
commercial  paper. 
Counties;    enforcement    of    claims. 

Cited  in  Kennedy  v.  Queens  County,  47  App.  Div.  257,  62  N.  Y.  Supp.  276, 
and  People  ex  rel.  Martin  v.  Westchester  County,  57  App.  Div.  137,  67  N.  Y. 
Supp.  981,  holding  it  optional  with  claimant  against  county  to  present  account 
to  board  for  audit  or  bring  action  thereon. 


709  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  481 

4  L.  R.  A.  480,  GILLS  LITHOGRAPHIC  &  LIBERTY  PRINTING  CO.  v.  CHASE, 
149  Mass.  459,  14  Am.  St.  Rep.  439,  21  N.  E.  765. 

4  L.  R.  A.  481,  NORTH  CHICAGO  CITY  R.  CO.  v.  GASTKA,  128  111.  613,  21 

N.  E.  522. 
Carrier's    liability    for   servant's    acts. 

Cited  in  Illinois  C.  R.  Co.  v.  Davenport,  75  111.  App.  583,  holding  carrier  liable 
for  wanton  and  wilful  ejection  of  trespasser  from  moving  train  by  brakeman; 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Doherty,  53  111.  App.  285,  holding  railway  liable 
for  injuries  received  by  boy  stealing  ride  on  engine,  through  fall  under  cars 
caused  by  engineer  throwing  coal  at  him;  Hagerstrom  v.  West  Chicago  Street 
R.  Co.  67  111.  App.  66,  holding  negligence  of  railway  question  for  jury  where 
conductor  spat  upon  and  struck  at  boy  stealing  ride  on  back  of  car,  whereby  he 
jumped  off  and  was  injured  by  car  coming  in  opposite  direction;  Tri-City  R.  Co. 
v.  Gould,  118  111.  App.  604,  holding  employment  of  excessive  force,  or  other  un- 
reasonable means  in  removing  passenger  for  using  vulgar  or  indecent  language, 
or  removal  under  circumstances  likely  to  cause  injury,  resulting  in  injury,  ren- 
ders carrier  liable  for  act  of  conductor;  Brink's  Chicago  City  Exp.  Co.  v.  Brophy, 
136  111.  App.  150,  holding  master  liable  for  act  of  servant  in  striking  person, 
though  striking  not  necessary  in  carrying  out  master's  orders  as  to  nondelivery 
of  goods  without  receipt;  Hickey  v.  Chicago  City  R.  Co.  148  111.  App.  215,  holding 
trespasser  not  obliged  to  jump  off  in  front  of  trolley  car  while  it  is  running  at 
order  of  conductor  that  he  remove  himself  from  dangerous  position. 

Cited  in  notes  (6  L.  R.  A.  242)  on  liability  of  railroad  company  for  acts  of 
agents  and  servants;  (27  L.  R.  A.  189)  on  master's  civil  responsibility  for 
wrongful  or  negligent  act  of  servant  or  agent  towards  one  who  has  no  claim  on 
master  by  reason  of  contract  incipient  or  perfected;  (13  L.R.A. (N.S.)  365,  370) 
on  liability  of  railroad  for  negligence  in  ejecting  trespasser  from  moving  train; 
(32  Am.  St.  Rep.  99)  on  carrier's  duty  to  protect  passengers  from  assault;  (35 
L.  ed.  U.  S.  923)  on  negligence  of  railroad  companies  toward  passengers. 

Distinguished  in  Belt  R.  Co.  v.  Banicki,  102  111.  App.  648,  holding  railroad 
company  not  liable  for  injury  caused  by  shot  fired  by  freight  watchman  at 
trespasser  peacefully  leaving  premises;  Barger  v.  North  Chicago  Street  R.  Co. 
54  111.  App.  285,  holding  judgment  for  defendant  will  not  be  reversed  in  action 
by  trespasser  for  personal  injuries,  where  complaint  does  not  show  act  of 
defendant's  servant  within  scope  of  employment. 
Sufficiency  of  preponderance  of  evidence. 

Cited  in  West  Chicago  Street  R.   Co.  v.   Loftus,   83  111.  App.   196,  upholding 
instruction  that  "slight   preponderance"   of   evidence  in   favor   of  plaintiff  suffi- 
cient. 
Consent    to    absence    of   witness. 

Distinguished  in  Kellyville  Coal  Co.  v.  Hill,  94  111.  App.  92,  same  case  95 
111.  App.  668,  holding  affidavit  in  support  of  motion  for  continuance  on  ground 
of  absence  of  witness  need  not  show  that  absence  was  without  consent  where 
the  witness  had  never  been  in  court  and  reasonable  efforts  to  secure  his  at- 
tendance failed. 
Acts  of  servant  outside  master's  business  or  servant's  employment. 

Cited  in  Hills  v.  Strong,  132  111.  App.  178,  holding  master  not  liable  for  negli- 
gence of  person  to  whom  servant,  without  authority,  turned  over  team  and  wagon 
of  master. 

Cited  in  notes  (4  L.R.A. (X.S.)  488)  on  liability  for  malicious  act  of  servant 
when  master  owes  special  duty  to  party  injured;  (19  Am.  St.  Rep.  713)  on  mas- 
ter's liability  for  servant's  acts  in  course  of  employment. 


4  L.R.A.  481]  L.  R.  A.  CASES  AS  AUTHORITIES.  710 

Instructions  to  Jury. 

Cited  in  People  ex  rel.  Rardin  v.  Rardin,  151  111.  App.  85,  on  misleading  in- 
struction. 

4  L.  R.  A.  483,  MILLER  v.  POWERS,  119  Ind.  79,  21  N.  E.  455. 
Rescission   or  reformation   of  contract. 

Cited  in  footnotes  to  Decker  v.  Schulze,  27  L.  R.  A.  335,  which  holds  mere 
breach  of  covenant  as  to  title  not  ground  for  rescinding  executed  sale  of  land; 
Bigham  v.  Madison,  47  L.  R.  A.  267,  which  authorizes  rescission  for  mutual 
mistake  as  to  location  of  boundary  lines  pointed  out  by  vendor;  Atherton  v. 
Roche,  55  L.  R.  A.  591,  which  denies  power  to  reform  deed  to  daughter  and 
husband  and  "their"  heirs  so  as  to  include  all  heirs  of  her  body. 
Mistake,  as  a  result  of  ignorance  or  negligence. 

Cited  in  McLean  v.  Lowe,  126  Ind.  458,  26  N.  E.  398,  holding  indorser  of 
draft  liable  although  ignorant  ot  his  liability  when  indorsing;  Fidelity  &  C. 
Co.  v.  Teter,  136  Ind.  678,  36  N.  E.  283,  holding  parties  without  mistake  or  fraud 
bound  by  clear  terms  of  contract;  Stewart  v.  Chicago  &  E.  I.  R.  Co.  141  Ind. 
61,  40  N.  E.  67,  holding  contracting  party  must  use  reasonable  diligence  to  as- 
certain facts  on  which  he  acts;  Wood  v.  Wack,  31  Ind.  App.  255,  67  N.  E.  562, 
holding  person  signing  bound  by  contract  from  which  stipulations  agreed  upon 
were  omitted;  Wayne  International  Bldg.  &  L.  Asso.  v.  Gilmore,  37  Ind.  App. 
152,  72  N.  E.  190,  holding  where  bond  and  mortgage  and  by-laws  of  loan  asso- 
ciation were  not  susceptible  of  construction  put  upon  them  by  representations 
of  agent  of  association,  person  signing  bond  and  mortgage  was  bound,  it  not 
being  shown  that  he  was  prevented  from  knowing  provisions  when  he  .signed. 

Cited  in  footnote  to  Langevin  v.  St.  Paul,  15  L.  R.  A.  766,  which  holds  agent's 
mistaken  belief  that  all  of  lots  jointly  sold  for  taxes  belonged  to  principal  not 
ground  to  recover  back  any  of  redemption  money. 

Cited  in  notes  (6  L.  R.  A.  836)  on  necessity  of  mistake  being  material  and 
free  from  culpable  negligence;  (11  L.  R.  A.  857)  on  mistake  in  written  con- 
tract; relief  fund;  (5  L.  R.  A.  153,  154)  as  to  when  relief  obtainable  in 
equity  for  mistake. 

Distinguished  in  Givan  v.  Masterson,  152  Ind.  132,  51  N.  E.  237,  setting  aside 
deed  executed  under  belief  it  was  mortgage,  through  fraud  of  stepfather. 
Concealment    as   affecting   statute    of    limitations. 

Cited  in  Kennedy  v.  Warnica,  136  Ind.  164,  36  N.  E.  22,  dismissing  com- 
plaint in  action  barred  by  statute,  active  concealment  not  being  shown;  Jack- 
son v.  Jackson,  149  Ind.  243,  47  N.  E.  963;  Dearborn  County  v.  Lods,  9  Ind. 
App.  373,  36  N.  E.  772;  Bower  v.  Thomas,  22  Ind.  App.  508,  54  N.  E.  142; 
Lemster  v.  Warner,  137  Ind.  81,  36  N.  E.  900, — holding  statute  will  run  unless 
there  be  an  affirmative  act,  trick,  or  artifice  to  prevent  or  elude  inquiry;  Fortune 
v.  English,  128  111.  App.  543,  holding  mere  silence  by  person  liable  to  action  not 
concealment  within  meaning  of  statute,  something  of  affirmative  character  must 
be  said  or  done. 

Cited  in  notes  (6  L.R.A.  799)  on  statute  of  limitations  running  from  discovery 
-of  concealed  fraud;  (14  Am.  St.  Rep.  277)  on  time  to  object  on  ground  of  fraud. 

4  L.  R.  A.  488,  DAYTON  V.  ADK1SSON,  45  N.  J.  Eq.   603,   14  Am.  St.  Rep. 

763,   17   Atl.  964. 
Legitimation    of    child    by    marriage. 

Cited  in  Tuttle  v.  Woolworth,  74  N.  J.  Eq.  320,  77  Atl.  684,  holding  facts  of 
«ase  bring  it  within  principle  of  cited  case  but  that  discussion  of  questions  arising 
out  of  statutory  legitimation  is  unnecessary;  Finley  v.  Brown,  122  Tenn.  336, 


711  L.  R.  A.  CASES  AS  .AUTHORITIES.  [4  LJ?.A.  493 

25  L.R.A.(N.S.)  1291,  123  S.  W.  359,  on  legitimation  by  marriage  and  extraterri- 
torial effect  of  such  legitimation. 

Cited  in  footnote  to  Fowler  v.  Fowler,  59  L.  R.  A.  318,  which  holds  legitimation 
by  law  of  parents'  domicil,  binding  elsewhere. 

Cited  in  notes  (13  L.R.A.  276,  278)  on  effect  of  subsequent  marriage  of  parents 
on  antenuptial  issue;  (65  L.R.A.  181)  on  conflict  of  laws  as  to  legitimacy;  (5 
Eng.  Rul.  Cas.  764)  on  law  governing  status  of  legitimacy. 

4  L.  R.  A.  491,  COLLAR  v.  COLLAR,  75  Mich.  414,  42  N.  W.  847. 

Judgment  for  plaintiff  on  new  trial  reversed  and  new  trial  ordered,  in  Collar  v. 
Collar,  86  Mich.  508,   13  L.  R.  A.  623,  49  N.  W.  551. 
Action   to  recover  trust   funds. 

Cited  in  Harris  v.  Clark,  94  Iowa,  329,  62  N.  W.  854,  holding  debt  lies  to  re- 
cover sum  realized  by  defendant  on  sale  of  land  under  parol  agreement  with 
plaintiff  where  after  receipt  of  proceeds  defendant  has  promised  to  pay  over 
same;  Logan  v.  Brown,  20  Okla.  349,  20  L.R.A.(N.S.)  299,  95  Pac.  441,  holding 
where  one  takes  title  to  real  property  under  parol  agreement  to  hold  same  and 
sell  it  for  grantor,  after  having  sold  it  and  received  proceeds,  he  is  liable  for 
proceeds  thereof  to  grantor. 
Parol  evidence  as  to  writings. 

Cited  in  note  (15  Am.  St.  Rep.  714)   on  parol  evidence  as  to  writings. 

4  L.  R.  A.  493,  WILLIS  v.  SHARP,  113  N.  Y.  586,  21  JSi.  E.  705. 
Continuance  of  business  of  deceased  by  his  representative. 

Cited  in  Stewart  v.  Robinson,  115  N.  Y.  336,  5  L.  R.  A.  413,  22  N.  E.  160, 
holding  estate  not  liable  for  debts  of  partnership  continued  by  surviving  partner 
solely  under  ante  mortem  agreement;  Thomas  Adams  &  Co.  v.  Albert,  155  N.  Y. 
365,  63  Am.  St.  Rep.  675,  49  N.  E.  929,  holding  unliquidated  interest  of  re- 
tiring partner  remains  at  risk  of  the  business;  Munzor's  Estate,  4  Misc.  376,  25 
N.  Y.  Supp.  818,  and  Kenyon  v.  Olney,  39  N.  Y.  S.  R.  841,  15  N.  Y.  Supp. 
416,  holding  debts  contracted  by  administrator  in  continuing  business  of  intes- 
tate not  binding  on  estate;  Re  MuIIon,  74  Hun,  366,  26  N.  Y.  Supp.  683,  holding 
property  bought  by  administrators  would  belong  to  them  personally,  if  assum- 
ing to  carry  on  business  in  name  of  estate;  Re  Rumsey.  45  N.  Y.  S.  R.  456,  18 
N.  Y.  Supp.  402,  holding  direction  in  will  to  continue  business  for  specified  time 
unless  deemed  unprofitable  by  executors,  valid;  Darling  v.  Powell,  20  Misc.  242, 
45  N.  Y.  Supp.  794,  holding  executors  liable  personally  for  debts  contracted  as 
executors  after  testator's  death;  McCue  v.  Finck,  20  Misc.  507,  46  N.  Y.  Supp. 
242,  holding  estate  not  liable  for  tort  of  executor  in  connection  with  conduct 
of  business  decided  by  will ;  Dexter  v.  Dexter,  43  App.  Div.  278,  60  N.  Y.  Supp. 
371  (dissenting  opinion)  majority  denying  surviving  partner's  right  to  con- 
tinue business  of  firm;  Saperstein  v.  Ullman,  168  N.  Y.  637,  61  N.  E.  553,  dissent- 
ing opinion,  Affirming  49  App.  Div.  448,  63  N.  Y.  Supp.  626,  majority  de- 
nying liability  of  executor  as  such,  for  debts  contracted  by  him  while  continu- 
ing testator's  business,  under  will  expressing  such  wish;  Re  Hickey,  34  Misc. 
362,  69  N.  Y.  Supp.  844,  holding  creditor  can  only  reach  assets  in  testator's  busi- 
ness at  time  of  death,  when  executor  continues  by  permission  in  will;  Packard 
v.  Kingman,  109  Mich.  506,  67  N.  W.  551,  holding  estate  liable  on  executor's 
contract  in  continuing  testator's  business  under  authority  of  will;  Ferris  v. 
Van  Ingen,  110  Ga.  109,  35  S.  E.  347,  holding  testator  may  authorize  surviv- 
ing partner  to  carry  on  firm's  business  so  as  to  bind  estate  for  debts;  Porter  v. 
Long,  124  Mich.  593,  83  N.  W.  601,  holding  surviving  partner  and  executor  not 
entitled  to  compensation,  aside  from  share  of  profits  for  managing  nrm  business; 


4  L.R.A.  493]  L.  R.  A.  CASES  AS  AUTHORITIES.  712 

Re  McCollum,  80  App.  Div.  363,  80  N.  Y.  Supp.  755,  holding  authority  not 
conferred  upon  executor  to  continue  business  by  oral  request  of  testator;  Thorn 
v.  de  Breteuil,  86  App.  Div.  421,  83  X.  V.  Supp.  849,  denying  that  beneficiaries 
can  prevent  business  from  being  continued  by  executors  as  directed  by  will; 
Roberts  v.  Hale,  124  Iowa,  300,  99  N.  W.  1075,  1  A.  &  E.  Ann.  Gas.  940,  holding 
assets  of  estate  liable  for  debts  incurred  by  trustee  in  carrying  on  business 
where  will  sets  them  apart  for  purposes  of  such  business;  Campbell  v.  Faxon, 
73  Kan.  680,  5  L.R.A.  (X.S.)  1005,  85  Pac.  760,  holding  administrator  carrying  on 
business  for  estate  without  authority  personally  bound  by  contracts  made  in  con- 
duct of  business  but  estate  not  bound;  American  Surety  Co.  v.  McGuire,  54  Misc. 
80,  103  N.  Y.  Supp.  753,  holding  that  in  action  by  surety  on  official  bond  of  ad- 
ministrator to  have  its  liability  determined  and  itself  discharged,  that  creditor  of 
business  carried  on  by  administrator  after  his  decedent's  death,  might  intervene; 
Thorn  v.  De  Breteuil,  179  N.  Y.  78,  71  N.  E.  470,  holding  direction  by  testator 
that  his  business  shall  be  carried  on  will  be  construed  as  authority  to  carry  it  on 
witli  funds  already  invested  in  it  at  time  of  testator's  death ;  Re  United  States 
Mortg.  &  T.  Co.  114  App.  Div.  536,  100  N.  Y.  Supp.  12,  holding  representative 
carrying  on  business  without  authority  not  required  to  file  itemized  account  of 
receipts  and  disbursements  therein,  or  vouchers  for  such  disbursements;  Manhat- 
tan Oil  Co.  v.  Gill,  118  App.  Div.  19,  103  X.  Y.  Supp.  364,  holding  where  executor 
authorized  to  continue  business  but  not  authorized  to  involve  general  assets  of  es- 
tate, persons  dealing  with  him  bound  to  know  only  property  embarked  in  business 
answerable;  Farrelly  v.  Schaettler,  121  App.  Div.  682,  106  X.  Y.  Supp.  445, 
holding  estate  not  liable  for  obligation  created  in  connection  with,  but  not  as 
part  of,  business  executrix  was  carrying  on  under  provisions  of  will ;  Steele  v.  Leo- 
pold, 335  App.  Div.  257,  120  X.  Y.  Supp.  569,  holding  testator  may  direct  that  his 
executors  continue  or  open  and  conduct  for  given  time  speculative  account  for 
benefit  of  estate. 

Cited  in  notes  (19  Eng.  Rul.  Cas.  516)  on  option  of  personal  representative  of 
deceased  partner  to  become  partner;  (40  L.R.A.  (X.S.)  204,  205,  206,  207,  212, 
214,  218,  224,  225,  226,  233,  234)  on  personal  representative,  testamentary  trus- 
tee, or  guardian  carrying  on  business. 

Distinguished  in  Columbus  Watch  Co.  v.  Hodenpyl,  135  X.  Y.  434,  48  N.  Y. 
S.  R.  449,  32  X.  E.  239,  Affirming  61  Hun,  560,  16  X.  Y.  Supp.  337,  holding  where 
executor  continued  testator's  interest  in  business  with  surviving  partner  exe- 
cution might  issue,  without  surrogate's  leave;  Re  Stern,  2  Connoly,  205,  9  N.  Y. 
Supp.  445,  holding  to  same  effect. 
Liability  for  debts  contracted  by  representative. 

Cited  in  Rogers  v.  Wendell,  54  Hun,  544,  7  X.  Y.  Supp.  781,  holding  receiver 
liable  personally  for  services  of  agent  in  preservation  of  receivership  property; 
Meyer  v.  Lexow,  1  App.  Div.  117,  37  X.  Y.  Supp.  67,  holding  temporary  re- 
ceiver cannot  contract  debts  chargeable  upon  fund  without  court's  authority; 
Mulrein  v.  Smillie,  25  App.  Div.  137,  48  X.  Y.  Supp.  994,  holding  mechanic,  to 
bind  trust  estate  for  repairs,  must  show  contract  contemplated  charging  estate; 
Re  Ginsburg,  27  Misc.  754,  59  X.  1.  Supp.  656,  holding  landlord  with  personal 
judgment  against  general  assignee  for  rent,  cannot  look  to  estate  for  payment ; 
Blum  v.  Dabritz,  39  Misc.  801,  81  X.  Y.  Supp.  315.  holding  estate  not  liable 
for  illegal  eviction  of  tenant  by  executor;  O'Brien  v.  Jackson,  167  X.  Y.  35,  60 
X.  E.  238,  Reversing  42  App.  Div.  173,  58  X.  Y.  Supp.  1044,  holding  executors 
and  trustees  making  new  contract  as  representatives  and  for  estate's  benefit, 
liable  individually;  Hamlin  v.  Smith,  72  App.  Div.  610,  76  X.  Y.  Supp.  258, 
holding  creditor  loaning  necessary  money  to  executor  individually  for  estate  en- 
titled to  be  subrogated  to  executor's  right  of  reimbursement;  American  Surety 


713  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  495 

Co.  v.  McDermott,  5  Misc.  299,  25  N.  Y.  Supp.  467,  holding  covenant  by 
receiver  for  "himself,  his  heirs,  etc.,"  individual  obligation;  Valley  Xat.  Bank 
v.  Crosby,  108  Iowa,  654,  79  N.  W.  383,  holding  administrator  cannot  bind  es- 
tate by  contract  except  by  statutory  authority;  Brackett  v.  Ostrander,  126  App. 
Div.  535,  ]10  X.  Y.  Supp.  779,  holding  rule  that  executors  are  personally  liable 
for  their  contracts,  although  made  for  benefit  of  estate  which  they  represent,  and 
that  such  contracts  may  not  be  enforced  directly  against  estate  is  not  absolute 
or  unqualified. 

-  Cited  in  note   (52  Am.  St.  Rep.  129)   on  liabilities  of  estates  of  decedents  on 
contracts  and  for  torts  of  personal  representatives. 

K<i  ii  i  t:i  !>!«•     cinim     Huninst     estate. 

Cited  in  Mander  v.  Low,  12  Misc.  321,  33  N.  Y.  Supp.  719,  holding  necessary 
pledge  of  credit  of  estate  only  enforceable  in  equity. 

Distinguished  in  Norling  v.  Allee,  37  N.  Y.  S.  R.  411,   13  N.  Y.  Supp.  791> 
holding  trustees  not  liable  for  injuries  caused  by  fall  of  fence  on  property  of 
estate. 
"Waiver    of    objections    to    pleadings. 

Cited   in   Lane   v.    Wheelwright,   53   N.   Y.    S.   R.    369,   23   N.   Y.    Supp.   576, 
holding  objection   that  different   causes   of  action   are  not   separated  and   num- 
bered, not  taken  by  demurrer  or  answer,  waived. 
Testator's  power  to  interfere  ivitb   settlement  of  his  estate. 

Cited  in  Mills  v.  Smith,  193  Mass.  18,  6  L.R.A.(N.S.)  870,  78  N.  E.  765,  holding 
contract  not  objectionable  on  ground  it  unreasonably  and  unlawfully  interfered 
with  settlement  of  testator's  estate. 

4  L.  R.  A.  495,  JONES  v.  BATES,  26  Neb.  693,  42  N.  W.  751. 
i.iii  "<>'•   dealer's  liability  independent  of  sureties. 

Cited  in  Uldrich  v.  Gilmore,  35  Neb.  291,  53  N.  W.  135.  holding  invalidity  of 
sureties'  bond  does  not  affect  dealer's  personal  liability  for  injury  resulting  from 
furnishing  intoxicating  liquors. 

Liability   for  resulting^  injury. 

Cited  in  Murphy  v.  Gould,  40  Neb.  731,  59  N.  W.  383,  upholding  instruc- 
tion that  party  selling  or  giving  liquor  to  another  causing  intoxication,  liable 
to  latter's  wife  for  any  resulting  injury  to  her  means  of  support;  Schiek  v. 
Sanders,  53  Neb.  669,  74  N.  W.  39,  holding  liability  not  limited  to  cases  in  which 
intoxication  direct  and  proximate  cause  of,  provided  it  contributed  to,  injury; 
Cornelius  v.  Hultman,  44  Neb.  444,  62  N.  W.  891,  refusing  to  disturb  ver- 
dict of  jury  against  defendant  on  issue  whether  or  not  defendant  personally  or 
by  his  servants  sold  intoxicating  liquor  to  deceased;  Gorey  v.  Kelly,  64  Neb. 
607,  90  N.  W.  554,  upholding  instruction  that  wife  and  children  are  entitled  to 
compensation  for  loss  of  support  caused  by  husband's  intoxication;  Stahnka 
v.  Kreitle.  66  Neb.  832,  92  X.  W.  1 042,  holding  dealers  jointly  and  severally  liable 
for  failure  of  husband  incapacitated  by  drinking  of  intoxicants  to  support  wife 
during  time  they  contributed  to  such  failure  only. 

Cited  in  footnote  to  Gage  v.  Harvey,  43  L.  R.  A.  143,  which  holds  loss  of  money 
taken   from   intoxicated   person's   pocket  not   included   in  damages   from   sale  of 
liquor  to  him. 
—  Probable   reformation   of   drunkard   as  affecting   damages. 

Disapproved  in  Stahnka  v.  Kreitle,  66  Neb.  832,  92  N.  W.  1042,  urging  im- 
probability that  drunkard  will  reform  if  liquor  is  not  furnished  him  by  saloon- 
keepers; Acken  v.  Tinglehoff,  83  Neb.  298,  119  N.  W.  450,  conceding  drunkard 
may  reform,  but  denying  any  presumption  that  he  will. 


4  L.R.A.  499]  L.  R.  A.  CASES  AS  AUTHORITIES.  714 

4  L.  R.  A.  499,  STRAFFORD  v.  SHARON,  61  Vt.  126,  17  Atl.  793,  18  Atl.  308. 
Vested  rights  against   municipal   corporation. 

Disapproved  in  Underbill  v.  Essex,  64  Vt.  32,  23  Atl.  617,  holding  no  vested 
right  created  in  favor  of  adjoining  towns  by  judgment  apportioning  expense  oi 
bridge    upon    town    within    which    not    situated. 
Legislative    control    of    municipalities. 

Cited  in  note  (48  L.  R.  A.  492)  on  power  of  legislature  to  impose  burden* 
on  municipalities  and  to  control  their  local  administration  and  property. 

4  L.  R.  A.  500,  GOLDSMITH  v.  JOY,  61  Vt.  488,  15  Am.  St.  Rep.  923,  17  Atl. 

1010. 
Provocation  —As    justification    of    assault. 

Cited  in  Willey  v.  Carpenter,  64  Vt.  215,  15  L.  R.  A.  855,  23  Atl.  630,  hold- 
ing malignant  speeches  and  taunts  intended  to  provoke  attack,  not  justification 
of  assault. 

Cited  in  footnotes  to  Baltimore  &  O.  R.  Co.  v.  Barger,  26  L.  R.  A.  220,  which 
holds  passenger's  profane  and  abusive  language  not  excuse  carrier's  liability  for 
assault  by  conductor;  Berkner  v.  Dannenberg,  60  L.  R.  A.  559,  which  author- 
izes consideration  of  abusive  language  in  mitigation  only,  not  justification,  for 
assault. 

Cited  in  note  (38  L.R.A.(N.S.)  518)  on  provocation  less  than  an  assault,  as  a 
defense  to  a  civil  action  for  an  assault  and  battery. 
In  mitigation  of  damages. 

Approved  in  Grace  v.  Dempsey,  75  Wis.  324,  43  N.  W.  1127,  holding  inad- 
missible to  mitigate  actual  damages;  Mangold  v.  Oft,  63  Neb.  399,  88  N.  W. 
507,  holding  that  threats  cannot  be  shown  in  mitigation  of  compensatory 
damages;  Barrette  v.  Carr,  75  Vt.  428,  56  Atl.  93,  holding  actual  damages  can- 
not be  reduced  by  evidence  of  provocation ;  Mahoning  Valley  R.  Co.  v.  De 
Pascale,  70  Ohio  St.  Ibo,  65  L.  R.  A.  863,  71  N.  E.  633,  holding  that  provocation 
may  be  considered  in  mitigation  of  punitive  damages  only. 

Cited  in  Marriott  v.  Williams,  152  Cal.  710,  125  Am.  St.  Rep.  87,  93  Pac.  875, 
holding  provocation  to  be  considered  only  in  reduction  of,  or  set  off  against 
exemplary  damages;  Armstrong  v.  Rhoads,  4  Penn.  (Del.)  155,  53  Atl.  43.5. 
to  same  effect;  De  Laurin  v.  Murray,  75  Ark.  238,  87  S.  W.  131,  holding  only 
provocation  so  recent  as  not  to  allow  cooling  time  is  competent  to  mitigate  dam- 
ages; and  then  mitigation  extends  only  to  exemplary  damages;  Warner  v.  Tal- 
bot,  112  La.  830,  66  L.R.A.  343,  104  Am.  St.  Rep.  460,  36  So.  743,  holding  provo- 
cation in  mitigation  of  exemplary  damages  must  be  immediate. 

Cited  in  footnote  to  Mahoning  Valley  R.  Co.  v.  De  Pascale,  65  L.R.A.  860,  which 
holds  that  words  of  provocation  may  be  considered  in  mitigation  of  punitive,  but 
not  of  compensatory  damages. 

Cited  in  note  (11  L.R.A. (N.S.)  671)  on  provocation  as  mitigating  damages  for 
assault. 

Disapproved  in  Genung  v.  Baldwin,  77  App.  Div.  586,  77  N.  Y.  Supp.  569, 
holding  that  provocation  may  be  considered  in  reduction  of  compensatory  dam- 


Abusive   language   as   justification   for   trespass. 

Cited  in  Heath  v.  Hagan.  135  Iowa,  498,  113  N.  W.  342,  holding  arrest  not 
justified  if  words  used  do  not  amount  to  breach  of  peace. 
Right   to  punitive  damages. 

Cited  in  notes  (28  Am.  St.  Rep.  871;  8  Eng.  Rul.  Cas.  378)  on  right  to  punitive 
damages. 


715  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  503 

4  L.  R.  A.  503,  PRIESTLEY'S  APPEAL,  127  Pa.  420,  17  Atl.  1084. 

Followed    without    special    discussion    in    Cutter's    Appeal,    127    Pa.    435,    17 
Atl.  1100. 
Notice  of   :i<lm  ini.st  rator's   settlement  or  of  other  judicial   proceeding. 

Cited  in  Ferguson  v.  Yard,  164  Pa.  596,  35  W.  N.  C.  433,  30  Atl.  517,  holding 
allegation  of  want  of  actual  notice  of  settlement  of  administrator's  account  or  oi 
decree  of  distribution,  immaterial  where  statutory  notice  has  been  given;  Yocum 
v.  Commercial  Nat.  Bank,  195  Pa.  416,  46  Atl.  94,  holding  account  of  executor 
showing  erroneous  payments  cannot  be  subsequently  attacked  by  administrator 
d.  b.  n.  c.  t.  a.  after  due  advertisement,  adjudication,  and  confirmation  without 
objection;  Re  Harrisburg  &  C.  Turnpike,  2  Dauphin  Co.  Rep.  54,  holding  that 
legislature  may  provide  for  service  of  notice  by  publication  in  condemnation  pro- 
ceedings; Tracy's  Estate,  15  Montg.  Co.  L.  Rep.  34,  holding  notice  by  advertis- 
ing executor's  account  binding  on  all  parties  in  interest;  Sheet's  Estate,  215  Pa. 
172,  64  Atl.  413,  holding  allegation  of  want  of  actual  notice  of  settling  of  ac- 
count of  administrator  or  of  decree  of  distribution  of  no  avail  where  it  appears 
notice  provided  by  act  of  assembly  has  been  given;  Been's  Estate,  30  Pa.  Co.  Ct. 
368,  13  Pa.  Dist.  R.  695,  holding  notice  by  advertisement  required  by  law,  given 
before  adjudication  of  account,  sufficient;  Umbstaetter's  Estate,  57  Pittsb.  L.  J. 
605,  19  Pa.  Dist.  R.  1121,  refusing  to  suspend  decree  of  distribution  for  claim 
not  presented  at  audit  of  estate  after  due  notice;  Meeh's  Estate,  24  Montg.  Co 
L.  Rep.  97,  18  Pa.  Dist.  R.  69,  holding  notice  of  filing  of  account  and  of  time 
and  place  of  audit  duly  given  by  advertisement  as  required  by  law  and  rule  of 
court  sufficient. 
Bill  of  review. 

Cited  in  Re  Adams,  183  Pa.  138,  38  Atl.  514,  holding  beneficiary  not  entitled 
to  bill  to  review  trustee's  account  fifteen  years  after  filing,  where  facts  on  which 
impeached  known  at  time  of  filing;  Vastine's  Estate,  190  Pa.  447,  44  W.  N.  C. 
32,  42  Atl.  1038,  holding  trustee's  account  will  not  be  opened  after  lapse  of  five 
years  on  ground  of  excessive  fees  to  trustee,  where  it  was  approved  by  cestui  que 
trust  before  filing  and  confirming;  Seager's  Estate,  6  Pa.  Dist.  R.  106;  Boswell's 
Estate,  6  Pa.  Dist.  R.  353,  19  Pa.  Co.  Ct.  537;  Martin's  Estate,  21  Pa.  Co.  Ct. 
146,  7  Pa.  Dist.  R.  409;  Kachline's  Estate,  7  Pa.  Super.  Ct.  165;  Bickford's  Es- 
tate, 16  Pa.  Super.  Ct.  575;  Re  Sugar  Notch,  10  Kulp,  261;  Rostonski's  Estate, 
7  Northampton  Co.  Rep.  215;  Hensler's  Estate,  17  Lane.  L.  Rev.  260;  Bailey's 
Estate,  208  Pa.  598,  57  Atl.  1095,  —  holding  bill  of  review  allowable  as  matter 
of  right,  only  for  error  of  law  appearing  upon  face  of  record,  or  for  new  mattery 
Straw's  Estate,  10  Kulp,  140,  refusing  to  grant  application  for  review,  where 
denials  in  answer  to  petition  are  not  overcome  by  two  witnesses,  or  equivalent; 
Lee's  Estate,  9  Pa.  Co.  Ct.  662,  20  Phila.  136,  29  W.  N.  C.  348,  denying  petition 
for  review  where  made  six  years  after  discovery  of  note  not  included  in  guardian's 
adjudicated  account;  Wright's  Estate,  25  Pa.  Co.  Ct.  597,  32  Pittsb.  L.  J.  N.  S, 
211,  permitting  bill  of  review  where  proceeds  of  real  and  personal  estate  were 
mingled  in  administrator's  account  which  was  confirmed;  State  v.  Illinois  C.  R.  Co. 
246  111.  244,  92  N.  E.  814,  holding  that  adjustment  by  governor  of  semi-annual 
accounts  of  railroad  can  be  reviewed  by  courts  only  for  fraud,  accident  or  mis- 
take; Price's  Estate,  29  Pa.  Co.  Ct.  450,  12  Pa.  Dist.  R.  693,  holding  review  can 
only  be  demanded  as  matter  of  right  for  error  in  law  apparent  on  face  of  record 
or  for  new  matter  which  has  arisen  since  decree;  though  as  matter  of  grace  it 
my  be  granted  for  new  proof  which  has  since  come  to  light,  and  which  was 
inaccessible  at  original  hearing;  Meeh's  Estate.  24  Mont.  Co.  L.  Rep.  97,  18  Pa. 
Dist.  R.  69,  to  same  effect;  Milliken's  Estate,  36  Pa.  Co.  Ct.  188,  holding  account 
passed  and  settled  and  confirmed  reviewable  as  matter  of  right  only  for  error 


4  L.R.A.  503]  L.  R.  A.  CASES  AS  AUTHORITIES.  716 

of  law  apparent  on  record  itself,  or  for  new  matter  which  has  arisen  since  de- 
cree: Guarantee  Trust  &  S.  D.  Co.  v.  Stover,  17  Pa.  Dist.  R.  689,  holding  loss  of 
testimony  taken  by  referee  could  not  be  regarded  as  affording  affirmative  testi- 
mony in  favor  of  petitioner  to  intervene,  but  on  contrary  evidence  averred  to 
have  been  lost  was  not  reviewable  even  if  it  had ;  Barr's  Estate,  43  Pa.  Super.  Ct. 
544.  denying  review  of  executor's  account  for  fraud  in  inducing  testator  to  buy 
stock,  on  petition  presented  ten  years  after  purchase  of  stock,  nine  years  after 
testator's  death  and  four  years  after  confirmation  of  account. 

Cited  in  footnote  to  Watkinson  v.  Watkinson,  69  L.R.A.  397,  which  holds  that 
bill  of  review  cannot  be  filed  after  three  years  from  final  decree  except  in  case 
of  new  or  newly  discovered  evidence. 

Cited  in  note   (30  L.R.A. (N.S.)    1032,   1040)    on  bill  of  review  for  newly  dis- 
covered evidence. 
Conclusiveness  of   responsive  answer. 

Followed  in  Huston  v.  Harrison,  168  Pa.  151,  31  Atl.  987,  holding  responsive 
answer  conclusive  when  no  contradictory  evidence  is  offered. 
Subscription   to   corporate   stock. 

Cited  in  footnote  to  Capps  v.  Hastings  Prospecting  Co.  24  L.  R.  A.  259,  which 
holds  agreement  to  subscribe  for  stock  within  specified  time  from  organization 
not  binding  till  company  lawfully  organized. 

Cited  in  note   (38  L.  R.  A.  490)   on  bonus  stock  of  corporations. 
Personal    liability    of    stockholders. 

Cited  in  Morse  v.  Pacific  R.  Co.  93  111.  App.  37,  holding  legal,  although  not 
equitable,  owner  of  stock  liable  for  debts  of  corporations;  Sherwood  v.  Illinois 
Trust  &  Sav.  Bank,  195  111.  119,  88  Am.  St.  Rep.  183.  62  X.  E.  835,  holding  stock- 
holder personally  liable  although  trustee,  stock  having  been  issued  directly  to  him. 

4  L.R.A.  507,  WIXSTOX  v.  BROOKS,  129  ILL.  64,  21  X.  E.  514. 
Kiulu    of  corporation   to  dispose   of  stock. 

Cited  in  Ross  v.  Sayler,   104  111.  App.  24,  holding  corporation  may  sell  stock 
at  price  it  chooses  not  prejudicing  creditors  or  stockholders;  Higgins  v.  Lansingh, 
154  111.  336,  40  X.  E.  302,  holding  excessive  issue  of  stock  for  land  as  only  capital 
of  corporation  not  fraud  on  corporation. 
Liability   of   subscribers   to   stock. 

Citec'  in  notes  (29  Am.  St.  Rep.  165)  on  who  are  stockholders  liable  for  unpaid 
subscriptions;  (31  Am.  St.  Rep.  650)  on  validity  of  agreements  diminishing 
stockholder's  liability  for  unpaid  subscriptions;  (93  Am.  St.  Rep.  388)  on  lia- 
bility to  corporations  of  subscribers  to  stock. 

4  L.  R.  A.  511,  YVARDLE  v.  TOWXSEXD,  75  Mich.  385,  42  X.  W.  950. 
Insurance   assessments Xotice. 

Cited  in  Wardle  v.  Cummings,  86  Mich.  400,  49  X.  W.  212,  holding  publica- 
tion or  substituted  service  of  notice  of  assessment  sufficient. 
Liability  for  nncollected. 

Cited  in  Insurance  Commissioner  v.  Commercial  Mut.  Ins.  Co.  20  R.  I.  8, 
3(i  Atl.  930;  Davis  v.  Shearer,  90  Wis.  258,  62  X.  W.  1050;  Peake  v.  Yule,  123 
Mich.  682,  82  X.  W.  514,  —  holding  member  liable  for  proportionate  share  of 
uncollectible  assessments  for  losses  occurring  during  life  of  policy;  Equity  Mut. 
F.  Ins.  Corp.  v.  Murray,  131  Ky.  750,  115  S.  W.  816,  holding  receiver  of  insolvent 
mutual  insurance  association  may  assess  solvent  members  thereof  to  make  up 
for  inability  of  insolvent  members  to  respond  to  assessments. 


717  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  519 

Cited  in  note  (32  L,  R.  A.  487,  501,  508)  on  liability  of  members  of  mutual 
fire  insurance  company. 

Distinguished  in  Ionia,  E.  &  B.  Farmers'  Mut.  F.  Ins.  Co.  v.  Otto,  97  Mich. 
523,  56  N.  W.  755,  holding  member  liable  for  losses  assessable  at  time  of  with- 
drawal, but  not  for  those  subsequently  occurring  by  reason  of  failure  to  collect. 

—  Losses    prior    to    date    of    policy. 

Cited  in  Detroit  Manufacturers'  Mut.  F.  Ins.  Co.  v.  Merrill,   101   Mich.  394, 
59  N.  W.  661,  holding  assessment  void  which  included  losses  occurring  prior  to 
'  date  of  policy. 

—  Amount. 

Cited  in  Ionia,  E.  &  B.  Farmers'  Mut.  F.  Ins.  Co.  v.  Davis,  100  Mich.  612, 
32  L.  R.  A.  489,  59  X.  W.  250,  holding  assessment  of  30  per  cent  not  unreasonable 
where  litigation  probable;  Nichol  v.  Murphy,  145  Mich.  430,  108  N.  W.  704, 
holding  limitation  in  contract  between  policy  holder  and  mutual  insurance  com- 
pany cannot  relieve  members  from  liability  to  pay  proportionate  share  of  losses 
and  expenses  of  insolvent  company  for  period  during  which  they  were  members. 

Distinguished  in  Collins  v.  Welch,  141  Mich.  678,  105  N.  W.  31,  holding  member 
of  mutual  fire  insurance  company  could  not  attack  assessment  as  excessive  in 
action  against  him  by  receiver  to  collect  the  amount  assessed,  but  should  have 
made  attack  in  direct  proceeding. 
Sufficiency  of  title  of  statute. 

Cited  in  State  ex  rel.  Sparks  v.  State  Bank  &  T.  Co.  31  Nev.  468,  103  Pac.  407, 
upholding  title  to  act  creating  board  of  bank  commissioners. 

Cited  in  notes  (64  Am.  St.  Rep.  98)  on  sufficiency  of  title  of  statute;  (79  Am. 
St.  Rep.  471)  as  to  when  title  of  statute  embraces  only  one  subject,  and  what 
may  be  included  thereunder. 

4  L.  R.  A.  516.  SUFFOLK  SAV.  BANK  v.  BOSTON,  149  Mass.  364,  21  N.  E.  665. 
Protection   of   bona    fide    holders   of   municipal   bonds. 

Cited  in  footnotes  to  Flagg  v.  School  Dist.  Xo.  70,  25  L.  R.  A.  363,  which  de- 
nies right  to  question,  as  against  bona  fide  purchaser,  consideration  of  bonds 
issued  to  pay  audited  claims;  Wilkes  County  v.  Call,  44  L.  R.  A.  252,  which  de- 
nies possibility  of  anyone  being  a  bona  fide  holder  of  county  bonds  issued  under 
unconstitutional  statute. 

Cited  in  note  (51  Am.  St.  Rep.  824,  834)  on  municipal  bonds  in  hands  of  bona 
fide  holders. 
\\  l»>  are  bona  flde  purchasers. 

Cited  in  Wenz  v.  Pastene,  209  Mass.  363,  —  L.R.A.(N.S.)  — ,  95  N.  E.  793, 
holding  that  purchaser,  on  receiving  notice  of  unrecorded  lease  after  part  pay- 
ment under  his  contract,  ceases  to  be  bona  fide  purchaser. 

4  L.  R.  A.  519,  McINTIRE  v.  ROBERTS,  149  Mass.  450,  14  Am.  St.  Rep.  432, 

22  N.  E.  13. 
Liability  for  injuries  resulting-  from  dangrerous  condition  of  premises. 

Cited  in  Quigley  v.  Clough,  173  Mass.  430,  45  L.  R.  A.  502,  73  Am.  St.  Rep.  303, 
53  N.  E.  884.  holding  owner  of  house  not  liable  to  trespasser  injured  in  dark  by 
barbed-wire  fence  maintained  to  prevent  pedestrians  crossing  grass  plot;  Da  neck 
v.  Pennsylvania  R.  Co.  59  N.  J.  L.  417,  59  Am.  St.  Rep.  613,  37  Atl.  59,  holding 
railway  not  liable  for  injuries  caused  by  party  driving  team  into  unfenced  rail- 
road cut,  where  highway  terminated  20  feet  away  in  higher  ground  owned  by 
third  party:  Mead  v.  Strauss,  202  Mass.  401,  88  N.  E.  889,  holding  abutter  not 
liable  for  injury  sustained  by  lady  in  leaving  his  premises  by  reason  of  her 


4  L.R.A.  519]  L.  R.  A.  CASES  AS  AUTHORITIES.  718 

gown  catching  upon  stake  on  his  land  set  near  private  walk  connecting  with  side- 
walk; Sheehan  v.  Bailey  Bldg.  Co.  42  Wash.  539,  85  Pac.  44,  holding  owner  of 
premises  adjacent  to  street  not  required  to  anticipate  or  guard  against  unusual 
and  extraordinary  occurrences. 

Cited  in  note  (26  L.R.A.  691)  on  liability  for  dangerous  condition  of  private 
grounds  lying  open  beside  highway  or  frequented  path;  (9  L.  R.  A.  643)  on  acci- 
dents at  elevator  shafts;  (25  Eng.  Rul.  Cas.  114)  on  liability  for  injury  to  tres- 
passer by  dangerous  instrumentalities. 

4  L.  R.  A.  521,  CONVERSE  v.  HOOD,  149  Mass.  471,  21  N.  E.  878. 
Specific    performance. 

Cited  in  footnotes  to  Hodges  v.  Rowing,  7  L.R.A.  87,  which  holds  specific  per- 
formance of  contract  for  sale  of  land  not  defeated  by  remedy  at  law;  Hearst  v. 
Putnam  Min.  Co.  66  L.R.A.  784,  which  denies  right  of  holders  of  stock  in  cor- 
poration whose  property  has  been  sold  to  maintain  suit  to  enforce  trust  in  such 
property  for  their  own  benefit. 
Necessity  for  injury  in  action  based  on  fraud. 

Cited  in  footnote  to  Kidd  v.  New  Hampshire  Traction  Co.  66  L.R.A.  574, 
which  upholds  right  of  stockholders  whose  officers  have  fraudulently  transferred 
its  assets  to  another  corporation  to  maintain  suit  in  equity  against  latter  for 
rescission  of  contract  or  for  damages  without  joining  former  corporation  as 
defendant. 

Cited  in  notes  (6  L.R.A.  150)  on  right  of  action  for  deceit;  (12  Eng.  Rul.  Cas. 
295)  on  what  constitutes  fraud  and  liability  therefor. 

4  L.  R.  A.  525,  TRINKLE  v.  JACKSON,  86  Va.  238,  9  S.  E.  986. 
Sales    of    land    "in    gross." 

Cited  in  Farrier  v.  Reynolds,  88  Va.  145,  13  S.  E.  393,  holding  vendee  not  en- 
titled to  abatement  of  purchase  price  on  sale  of  enclosed  "Duncan  farm,  contain- 
ing 56  acres,  more  or  less"  where  no  fraud,  though  farm  contained  but  41  acres; 
Farris  v.  Hughes,  89  Va.  933,  17  S.  E.  518,  holding  vendor  entitled  to  specific  per- 
formance of  contract  of  sale  of  enclosed  tract  of  282  acres  expressly  stipulated 
to  be  in  gross  though  deficient  in  quantity  by  7  acres;  Grayson  v.  Buchanan,  88 
Va.  254,  13  S.  E.  457,  holding  vendee  entitled  to  abatement  where  vendor  repre- 
sented tract  to  contain  140  acres  and  spring,  and  in  fact  contained  only  128  acres 
and  no  spring;  Berry  v.  Fishburne,  104  Va.  461,  51  S.  E.  827,  holding  sale  was 
by  acre  and  not  in  gross  where  proof  of  sale  in  gross  was  not  clear,  evidence 
tending  to  show  sale  by  acre. 

Cited  in  footnote  to  Xewman  v.  Kay,  68  L.R.A.  908.  which  denies  right  of 
vendor  of  land  in  gross  to  recover  compensation  or  rescind  contract  because  of 
•excess  above  supposed  quantity. 

Cited  in  note  (11  L.  R.  A.  376)  on  relief  of  purchaser  in  case  of  mutual  mis- 
take in  quantity  of  land  sold. 

4  L.  R.  A.  529,  BRUEN  v.  GILLET,  115  N.  Y.  10,  12  Am.  St.  Rep.  764,  21  N. 

E.  676. 

Liability    of    executors,    administrators,    and    trustees    for    acts    of    asso- 
ciates. 

Cited  in  Re  Cozzens,  2  Connoly,  625,  39  N.  Y.  S.  R.  389,  15  N.  Y.  Supp.  771, 
and  Nanz  v.  Oakley,  120  N.  Y.  89,  9  L.  R.  A.  227,  24  N.  E.  306,  holding  executors 
jointly  responsible  for  joint  acts  and  separately  answerable  for  separate  acts 
and  defaults;  Cocks  v.  Haviland,  124  X.  Y.  429,  26  N.  E.  976,  holding  mere 
passiveness  of  executor  does  not  make  him  liable  for  waste  of  coexecutor;  Re 


719  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  535 

Westerfield,  32  App.  Div.  340,  53  X.  Y.  Supp.  25,  holding  when  trustee  learns  of 
default  of  cotrustee  he  must  inform  cestui  que  trust ;  Re  Westerfield,  48  App. 
Div.  544,  63  X.  Y.  Supp.  10,  holding  rule  as  to  liability  of  executor  for  devastavit 
of  coexecutor  applies  to  testamentary  trustees;  Re  Blauvelt,  131  N.  Y.  252,  30 
X.  E.  194,  holding  executrix  not  liable  for  coexecutrix's  waste  of  proceeds  of  sale 
made  by  latter  under  power  in  will;  Purdy  v.  Lynch,  145  N.  Y.  473,  40  N.  E. 
232,  Reversing  72  Hun,  276,  25  N.  Y.  Supp.  775,  holding  two  trustees  not  liable 
for  funds  which  came  solely  without  negligence  into  hands  of  third  trustee; 
Thompson  v.  Hicks,  1  App.  Div.  280,  37  N.  Y.  Supp.  340,  and  Re  Litzenberger,  85 
Hun,  516,  33  X.  Y.  Supp.  155,  holding  executor  liable  for  waste  where  funds  are 
by  him  placed  in  hands  of  coexecutor;  Briggs  v.  Spaulding,  141  U.  S.  151,  35 
L.  ed.  670,  11  Sup.  Ct.  Rep.  924,  holding  bank  directors  must  exercise  reasonable 
supervision  over  bank  business;  Farmers  Loan  &  T.  Co.  v.  Pendleton,  179  N.  Y. 
494,  72  X.  E.  508,  holding  trustee  not  liable  for  fund  in  hands  of  cotrustee  unless 
fund  subsequently  comes  into  his  hands,  or  is  dissipated  by  reason  of  his  negli- 
gence or  with  his  consent;  Re  Johnson,  42  Misc.  655,  87  N.  Y.  Supp.  733,  holding 
executor  not  liable  for  amounts  received  by  coexecutor  representing  checks  turned 
over  to  him  by  executor,  but  liable  for  moneys  turned  over  to  coexecutor  where 
testimony  failed  to  disclose  what  was  done  with  it;  Re  Dougherty,  43  Misc.  472, 
89  X.  Y.  Supp.  549,  holding  executor  responsible  for  negligence  in  allowing  assets 
of  estate  to  come  into  hands  of  coexecutor  who  lost  them  in  private  speculation; 
Re  Mallon,  43  Misc.  570,  89  X.  Y.  Supp.  554,  on  liability  of  executor  who  remains 
passive  and  allows  coexecutor  to  deplete  estate;  Re  Provost,  87  App.  Div.  89, 
84  X.  Y.  Supp.  29,  holding  administratrix  who  indorsed  check  payable  to  herself 
and  coadministrator,  who  obtained  money  thereon  and  appropriated  it  so  it 
was  lost  to  estate,  not  liable  as  having  received  money;  Re  Hunt,  88  App.  Div. 
55,  84  X.  Y.  Supp.  790,  holding  that  where  property,  funds,  or  assets  of  estate 
have  once  come  into  joint  control  or  joint  possession  of  trustees,  it  is  duty  of 
each  to  see  fund  does  not  go  out  of  his  control  or  possession  unless  applied  to 
fulfilment  of  trust;  Palmer  v.  Ward,  91  App.  Div.  451,  86  X.  Y.  Supp.  990,  hold- 
ing administrator  responsible  who  signed  joint  checks  which  permitted  coadmin- 
istrator to  draw  upon  joint  account  and  thus  obtain  money,  but  not  liable  in 
absence  of  negligence  for  money  drawn  from  bank  by  coadministrator  on  his  sole 
signature,  nor  for  indorsing  check  payable  to  administrators  jointly  and  leaving 
it  with  coadministrator  for  deposit;  Re  Halsted,  110  App.  Div.  911,  95  X.  Y. 
Supp.  1131  (dissenting  opinion),  majority  however  affirms  44  Misc.  176,  89  X.  Y. 
Supp.  806,  on  opinion  of  surrogate  which  holds  delivery  of  bonds  to  cotrustee 
for  deposit  and  formal  execution  of  assignment  of  mortgage  would  not  make 
trustee  liable. 

Cited  in  note  (11  L.R.A. (X.S.)  322)  on  liability  of  coexecutor  for  default  of 
one  permitted  to  manage  estate. 

4  L.  R.  A.  535,  PURPLE  v.  FARRIXGTOX,  119  Ind.  164,  21  N.  E.  543. 
Waiver   of   answer. 

Cited  in  Havens  v.  Gard,  131  Ind.  523,  31  X.  E.  354,  holding  quite  doubtful 
whether  submitting  to  trial  without  answer  does  not  waive  it;  Schnull  v.  Mc- 
Pheeters,  12  Ind.  App.  511,  40  X.  E.  758,  holding  answer  waived  in  attachment 
after  plaintiffs  proceed  to  trial  and  introduce  evidence;  Helton  v.  Wells,  12  Ind. 
App.  608,  40  X.  E.  930,  holding  reply  to  affirmative  answer  waived  on  proceeding 
to  trial;  First  Xat.  Bank  v.  Farmers'  &  M.  Xat.  Bank.  171  Ind.  332,  84  N.  E.  417, 
holding  failure  of  parties  to  answer  not  admission  of  allegations  against  them. 
Preference  of  individual  over  partnership  or  corporate  creditors. 

Cited  in  Studebaker  Bros.  Mfg.  Co.  v.  Bird,  119  Ind.  429,  21  X.  E.  1086,  hold- 


4  L.R.A.  535]  L.  R.  A.  CASES  AS  AUTHORITIES.  720 

ing  individual  creditor  may  secure  indebtedness  out  of  partnership  assets  to  ex- 
clusion of  partnership  creditors;  Johnson  v.  McClary,  131  Ind.  106,  30  N.  E.  888, 
holding  partnership  receiver  cannot  attach  transfer  of  firm  property  to  secure 
bona  fide  debts  of  individual  partners;  Henderson  v.  Indiana  Trust  Co.  143  Ind. 
566,  40  N.  E.  516,  upholding  right  of  insolvent  corporation  to  prefer  any  claims 
although  secured  by  indorsements  of  directors  and  part  of  stockholders;  Sim- 
mons Hardware  Co.  v.  Thomas,  147  Ind.  320,  46  X.  E.  645,  upholding  bona  fide 
partnership  mortgage  to  secure  individual  indebtedness  of  partners;  Selz,  S.  & 
Co.  v.  Slayer,  151  Ind.  429,  51  X.  E.  485,  upholding  sale  of  partnership  property 
against  creditors  of  firm;  Mannen  v.  Bailey,  51  Kan.  447,  32  Pac.  1085,  uphold- 
ing mortgage  securing  individual  debt  of  partner  furnishing  whole  capital  of 
the  business;  Mansur-Tebbetts  Implement  Co.  v.  Ritchie,  159  Mo.  225,  60  S.  W. 
87;  Noyes  v.  Ross,  23  Mont.  435,  47  L.  R.  A.  405,  75  Am.  St.  Rep.  543,  59  Pac. 
367;  Bedford  v.  McDonald,  102  Tenn.  365,  52  S.  W.  157;  Reyburn  v.  Mitchell,  106 
Mo.  373,  27  Am.  St.  Rep.  350,  16  S.  W.  592,  —  holding  bona  fide  waiver  of  part- 
ners' equities  destroys  derivative  equities  of  creditors;  Kincaid  v.  National  Wall- 
paper Co.  63  Kan.  291,  54  L.  R.  A.  414,  88  Am.  St.  Rep.  243,  65  Pac.  247,  and 
Re  Edwards,  122  Mo.  431,  29  L.  R.  A.  687,  25  S.  W..904,  holding  assets  of  in- 
solvent firm  may  in  good  faith  be  applied  to  individual  debts  of  partners ;  Ex- 
celsior Mill  Co.  v.  Hanover,  102  Wis.  316,  78  X.  W.  737  (concurring  opinion), 
as  to  validity  of  conveyance  of  insolvent  firm  assets  to  pay  individual  partner's 
debt. 

Cited  in  footnote  to  Kincaid  v.  Xational  Wall  Paper  Co.  54  L.  R.  A.  412, 
which  sustains  right  of  partners  to  appropriate,  with  other  partners'  consent,  in- 
terest in  firm  to  pay  individual  in  preference  to  firm  debts. 

Cited  in  notes  (9  L.  R.  A.  417)  on  validity  of  voluntary  conveyance;  (29  L.  R, 
A.  682)  on  assumption  by  partnership  of  individual  debts  of  partners;  (2  L.R.A. 
(X.S.)  256)  on  right  of  partnership  as  against  firm  creditors  to  sell  or  mortgage 
firm  property  to  discharge  or  secure  member's  individual  debt;  (14  Am.  St.  Rep. 
725;  43  Am.  St.  Rep.  374)  on  partner's  disposal  of  property  for  individual  debts. 

Distinguished  in  State  ex  rel.  Miller  v.  Day,  3  Ind.  App.  160,  29  X.  E.  436^ 
holding  partners  cannot  waive  equities  so  as  to  defeat  fixed  liens. 

Disapproved  in  effect  in  Jackson  Bank  v.  Durfey,  72  Miss.  977,  31  L.  R.  A.  471, 
48  Am.  St.  Rep.  596.  18  So.  456,  holding  insolvent  partners  cannot  use  assets 
of  insolvent  partnership  to  prefer  individual  creditors. 

4  L.  R.  A.  538,  RUSSELL  v.  CEDAR  RAPIDS  IXS.  CO.   78  Iowa,  216,  42  X. 

W.  654. 
Parol   evidence   rnle. 

Cited  in  note   (5  L.  R.  A.  638)   on  varying  of  terms  of  insurance  contract. 
Conditions   in    fire   policy. 

Cited  in  Martin  v.  Capital  Ins.  Co.  85  Iowa,  650,  52  N.  W.  534,  holding  policy 
upon  dwelling-house  not  invalidated  under  clause  concerning  change  or  increase 
of  risk,  by  use  for  unauthorized  purpose;  Collins  v.  Merchants  &  B.  Mut.  Ins. 
Co.  95  Iowa,  543,  58  Am.  St.  Rep.  438,  64  X.  W.  602,  holding  mortgage  not  in- 
crease of  risk  as  matter  of  law;  Kansas  Farmers'  F.  Ins.  Co.  v.  Saindon,  52 
Kan.  494,  39  Am.  St.  Rep.  356,  35  Pac.  15,  holding  renewal  or  substitution  of 
mortgages  not  increase  of  risk;  Greenlee  v.  Xorth  British  &  M.  Ins.  Co.  102 
Iowa,  432,  63  Am.  St.  Rep.  455,  71  X.  W.  534,  holding  subjecting  property  to 
judgment  and  execution  sale,  under  mechanics'  lien  filed  at  date  of  policy,  not 
presumed  increase  of  hazard ;  Gerling  v.  Agricultural  Ins.  Co.  39  W.  Va.  697,  20 
S.  E.  691,  holding  judgment  in  invitum  not  within  provision  invalidating  policy 
if  subject-matter  becomes  encumbered  with  judgment;  Schloss  v.  Westchester  F 


721  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  543 

Ins.  Co.  141  Ala.  574,  109  Am.  St.  Rep.  58.  37  So.  701,  holding  sale  by  insured 
without  change  of  possession  attended  immediately  by  resale  which  leaves  in- 
sured with  same  title  he  had  at  beginning  not  alienation  within  provisions  of 
policy. 

Cited  in  footnotes  to  Kircher  v.  Milwaukee  Mechanics  Mut.  Ins.  Co.  5  L.  R.  A. 
779,  which  holds  policy  on  dwelling-house  not  forfeited  by  shaving  hoops  in  it 
previous  to  fire;  Walton  v.  Agricultural  Ins.  Co.  5  L.  R.  A.  677,  which  holds 
policy  to  husband  and  wife  avoided  by  conveyance  to  wife  through  third  person; 
State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds  policy  on  all  personalty 
without  specifying  it,  avoided  by  transfer  of  title,  only  as  to  property  encumbered 
at  time  of  loss;  Blackwell  v.  Miami  Valley  Ins.  Co.  14  L.  R.  A.  431,  which  holds 
taking  partner  in  business  not  sale  avoiding  policy;  Olney  v.  German  Ins.  Co. 
13  L.  R.  A.  684,  which  holds  chattel  mortgage  by  partner  on  firm  property 
a  change  of  "interest." 

Cited  in  notes  (11  L.  R.  A.  345)  on  contracts  of  fire  insurance;  (10  L.  R. 
A.  359)  on  effect  of  provision  against  increase  of  risk;  (11  L.  R.  A.  293)  on 
conditions  in  fire  policy  against  transfer  and  alienation  of  interest;  (107  Am.  St. 
Rep.  122)  on  waiver  of  provisions  of  nonwaiver  or  written  waiver  of  conditions 
and  forfeitures  in  policies. 
Opinion  evidence. 

Cited  in  Warshawky  v.  Anchor  Mut.  F.  Ins.  Co.  98  Iowa,  225,  67  N.  W.  237, 
holding  evidence  that  unauthorized  use  of  building  insured  increased  risk  con- 
trary to  policy,  admissible  in  action  thereon;  Krell  v.  Chickasaw  Farmer's  Mut. 
F.  Ins.  Co.  127  Iowa,  751,  104  X.  \V.  364,  holding,  it  seems,  testimony  of  ex- 
perienced person  that  use  of  feed  cooker  in  barn  increases  hazard  of  fire  is  not 
open  to  objection. 

Distinguished  in  Lee  v.  Agricultural  Ins.  Co.  79  Iowa,  381,  44  N.  W.  683,  hold- 
ing opinion  evidence  as  to  increase  of  hazard  properly  excluded  where  witness's 
experience  or  knowledge  not  shown. 

Disapproved  in  Penn  Mut.  L.  Ins.  Co.  v.  Mechanics'  Sav.  Bank  &  T.  Co.  38 
L.  R.  A.  61,  19  C.  C.  A.  300,  37  U.  S.  App.  692,  72  Fed.  427,  holding  insurance 
expert  may  not  testify  as  to  his  opinion  as  to  whether  undisclosed  or  misrepre- 
sented facts  were  material   to  risk. 
Xotice. 

Cited  in  German  Ins.  Co.  v.  Heiduk,  30  Neb.  297,  27  Am.  St.  Rep.  402,  46  N.  W. 
481,  holding  notice  to  local  agent  of  additional  insurance  not  notice  to  company, 
where  policy  provides  that  no  notice  to  agent  shall  affect  conditions  until  in- 
dorsed. 

Cited  in  notes  (10  L.  R  A.  145)  on  rescission  of  insurance  by  insured;  (8  L. 
R.  A.  719)  on  termination  of  contract  of  insurance  and  notice  thereof. 

4  L.  R.  A.  543,  ALTENBURG  v.  COM.  126  Pa.  602,  17  Atl.  799. 
Who   prohibited    from    furnishing:   liquor. 

Cited  in  Re  Bucks  County  Prison,  15  Pa.  Co.  Ct.  582,  holding  furnishing  of 
liquor  by  sheriff  and  others  to  prisoners,  within  condemnation  of  statute ;  Com.  v. 
Herman,  4  Pa.  Dist.  R.  414,  holding  wrongful  intent  necessary  to  conviction  of 
one  charged  with  furnishing  liquors  to  minors  on  Sunday;  Com.  v.  Heckler,  36 
\V.  X.  C.  364,  Reversing  14  Pa.  Co.  Ct.  467  (Quarters  Sessions),  holding  gift  of 
drink  on  Sunday  while  soliciting  votes  for  coming  election  on  premises  of  voter 
unlawful.  (Reversed  in  Supreme  Court);  People  v.  Bird,  138  Mich.  33,  67 
L.R.A.  425,  110  Am.  St.  Rep.  299,  100  X.  W.  1003.  4  A.  &  E.  Ann.  Cas.  1062, 
holding  person  furnishing  minor  in  his  home  with  liquor  not  liable  under  statute 
for  furnishing  liquor  to  minor;  Com.  v.  Quick,  31  Pa.  Co.  Ct.  543,  15  Pa.  Dist. 
L.R.A.  Au.  Vol.  I.— 46. 


4  L.R.A.  543]  L.  R.  A.  CASES  AS  AUTHORITIES.  722 

R.  261,  holding  furnishing  of  liquor  by  adult  man  to  girl  between  fourteen  and 
fifteen  years  of  age,  who  is  under  charge  of  probation  officer  of  juvenile  court  as 
delinquent  child  affects  public  morals,  concerns  community,  and  is  cognizable 
by  court;  Com.  v.  Miller,  38  Pa.  Co.  Ct.  270,  20  Pa.  Dist.  R.  917,  on  whether  it  is 
misdemeanor  to  furnish  liquor  to  one's  minor  or  intemperate  children  or  guests. 

Cited  in  notes  (9  L.R.A.  814)  on  construction  of  liquor  laws  of  Pennsylvania; 
(21  L.R.A.  (N.S.)  135)  on  social  treating  as  offense  under  liquor  law. 

Distinguished  in  Com.  v.  Carey,  151  Pa.  372,  25  Atl.  140,  upholding  right  to 
furnish  guests  with  liquor,  though  minors  and  on  Sunday;   Austin  v.  State,  22 
Ind.  App.  230,  53  N.  E.  481,  holding  furnishing  of  liquor  to  guests  on  New  Year's 
day  not  violation  of  statute  prohibiting  sale  or  gift  of  liquor  on  legal  holiday. 
Power  of  state  over  sale  of  liquor. 

Cited  in  Vail's  Application,  20  Pa.  Dist.  R.  655,  refusing  application  for  license 
where  liquors  were  sold  to  persons  of  intemperate  habits  after  notice. 

Cited  in  footnote  to  State  ex  rel.  Galle  v.  New  Orleans,  67  L.R.A.  70,  which 
denies  right  to  refuse  liquor  license  on  objection  of  minority  property  holders 
or  on  ground  that  no  more  barrooms  are  needed. 

Cited  in  note   (7  L.  R.  A.  296)   on  right  of  state  to  prohibit  manufacture  and 
sale  of  spirituous  liquors. 
Former  acquittal  as  defense. 

Cited  in  Com.  v.  Montross,  8  Pa.  Super.  Ct.  242,  holding  evidence  of  acquittal 
of  selling  liquor  on  Sunday  properly  excluded  on  trial  of  same  defendant  for 
selling  without  license;  Com.  v.  Tadrick,  1  Pa.  Super.  Ct.  567,  38  W.  N.  C.  218, 
holding  accused  entitled  on  general  issue  to  readmission  of  evidence  rendered 
nugatory  by  adverse  decision  on  plea  of  autrefois.  acquit;  Muckenfuss  v.  State, 
55  Tex.  Crim.  Rep.  230,  20  L.R.A.(N.S.)  785,  131  Am.  St.  Rep.  813,  116  S.  W.  51, 
16  A.  &  E.  Ann.  Cas.  768,  holding  theater  giving  more  than  one  performance 
on  Sunday  not  punishable  for  each  performance  under  statute  prohibiting  keeping 
place  of  amusement  open  on  Sunday;  Com.  v.  Bur  well,  59  Pittsb.  L.  J.  718,  15 
Luzerne  Leg.  Rep.  427,  38  Pa.  Co.  Ct.  682,  holding  that  district  attorney,  where 
indictment  includes  charge  of  previous  conviction  of  like  offense,  should  move 
for  double-time  sentence. 

Cited  in  notes  (31  L.R.A. (N.S.)  713)  on  right  to  convict  for  several  offenses 
growing  out  of  same  facts;  (92  Am.  St.  Rep.  155)  on  identity  of  offenses  on  plea 
of  former  jeopardy. 

Distinguished  in  Com.  v.  Jonea,  33  Pa.  Co.  Ct.  127,  15  Pa.  Dist.  R.  937,  holding 
sale  of  liquor  on  Sunday  by  unlicensed  person  warrants  conviction  both  for  crime 
of  selling  liquor  without  license  and  for  selling  liquor  on  Sunday. 

4  L.  R.  A.  545,  INTERNATIONAL  &  G.  N.  R.  CO.  v.  TISDALE,  74  Tex.  8,  11 

S.  W.  900. 
Liability  of  connecting:  carriers. 

Cited  in  Ft.  Worth  &  D.  C.  R.  Co.  v.  Fuller,  3  Tex.  Civ.  App.  341,  22  S.  W. 
1006,  holding  several  carriers  are  partners  in  such  sense  as  to  render  each  liable 
for  negligence  of  others;  Miller  v.  Texas  &  N.  0.  R.  Co.  83  Tex.  521,  18  S.  W. 
954,  holding  joint  liability  between  railway  on  which  injury  resulted  and  that 
executing  bill  of  lading  not  presumed  from  fact  of  hauling  car  and  collecting 
charges;  International  &  G.  N.  R.  Co.  v.  Campbell,  1  Tex.  Civ.  App.  510,  20  S.  W. 
845,  holding  connecting  line  bound  to  carry  shipper  of  stock  on  pass  of  shipping 
railway;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilbanks,  7  Tex.  Civ.  App.  494,  27  S.  W. 
302,  holding  each  connecting  carrier  liable  for  negligence  in  shipments  of  freight 
over  lines  of  others,  notwithstanding  stipulation  limiting  liability. 

Cited  in  notes   (31  L.R.A.(N.S.)   45,  46,  94,  95,  97)   on  liability  of  connecting 


723  L-  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  545 

carrier  for  loss  beyond  own  line;    (22  Am.  St.  Rep.  58)   on  presumption  as  to 
where  loss  occurred  in  case  of  connecting  carriers. 

Distinguished  in  Texas  &  N.  0.  R.  Co.  v.  Gray,  45  Tex.  Civ.  App.  211,  99  S.  W. 
1125,  holding  a  petition  by  plaintiff  charging  that  the  agent  of  the  initial  carrier 
was  the  agent  of  defendant  a  connecting  carrier  and  they  all  acted  together  as 
the  agent  of  each  other  did  not  charge  a  partnership  between  the  connecting  lines. 
Limitation  of  carrier's  liability. 

Distinguished  in  Missouri  P.  R.  Co.  v.  Edwards,  78  Tex.  312,   14  S.  W.   607, 
holding  stipulation  in  shipping  contract  that  liability  of  company  for  total  loss 
of  stock  should  in  no  case  exceed  specified  amount  per  head,  invalid. 
Strikes    as    defense. 

Cited  in  Southern  P.  R.  Co.  v.  Johnson,  4  Tex.  App.  Civ.  Gas.  (Willson)  69,  and 
Missouri  P.  R.  Co.  v.  Levi,  4  Tex.  App.  Civ.  Cas.   (Willson)    129,  holding  inter- 
ference by   strikers   defense  to  action  for  nondelivery  of  freight  in   reasonable 
time. 
JYeeessity    of    verified    denial. 

Cited  in  McCormick  Harvesting  Mach.  Co.  v.  Slover,  4  Tex.  App.  Civ.  Cas. 
(Willson)  397,  holding  plea  of  non  est  factum  in  action  on  written  instrument 
must  be  sworn  to;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilson,  7  Tex.  Civ.  App.  131,  26 
S.  W.  131,  holding  unverified  answer  denying  existence  of  partnership  between 
carriers  admits  such  allegation;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Edloff,  89  Tex.  456,  34 
S.  WT.  414,  and  Atchison,  T.  &  S.  F.  R.  Co.  v.  Grant,  6  Tex.  Civ.  App.  680,  26  S.  W. 
286,  holding  partnership  between  carriers  admitted  by  failure  to  deny  by  verified 
answer;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Wilbanks,  7  Tex.  Civ.  App.  493,  27  S.  W.  302, 
holding  assumption  in  charge  to  jury  of  partnership  between  carriers  proper 
when  not  denied  under  oath;  International  &  G.  N.  R.  Co.  v.  Anderson,  3  Tex. 
Civ.  App.  11,  21  S.  W.  691,  holding  shipping  contract  properly  admitted  in  evi- 
dence where  allegation  of  petition  that  was  executed  by  connecting  carriers  as 
defendant's  agent,  is  not  denied  under  oath,  though  contract  does  not  show  that 
it  was  so  executed;  Missouri,  K.  &  T.  R.  Co.  v.  Stoner,  5  Tex.  Civ.  App.  73,  23 
S.  W.  1020,  holding  ratification  by  one  carrier  of  contract  with  another  must 
be  alleged  or  proven;  Ft.  Worth  &  D.  C.  R.  Co.  v.  Johnson,  5  Tex.  Civ.  App.  26, 
23  S.  W.  827,  holding  burden  on  plaintiff  to  show  connection  of  railway  with 
execution  of  bill  of  lading  where  allegation  of  partnership  with  initial  carrier  is 
denied  under  oath;  Smith  v.  Western  U.  Teleg.  Co.  84  Tex.  363,  31  Am.  St.  Rep. 
59,  19  S.  W.  441,  holding  denial  under  oath  of  existence  of  partnership  of  tele- 
graph company  with  line  from  which  it  received  message  for  transmission  to 
other  point  unnecessary  when  not  alleged  in  petition;  International  &  G.  N.  R. 
Co.  v.  Ing,  29  Tex.  Civ.  App.  399,  68  S.  W.  722,  holding  that  passenger  ejected 
from  train  need  not  prove  execution  and  issuance  of  ticket  by  railroad  company 
which  does  not  plead  non  est  factum. 

Distinguished  in  Dillingham  v.  Fischl,  1  Tex.  Civ.  App.  552,  21  S.  W.  554,  hold- 
ing denial  of  allegation  not  contained  in  petition  unnecessary. 
Liability  of  carrier  of  live  stock. 

Cited  in  footnote  to  Good  v.  Galveston,  H.  &  S.  A.  R.  Co.  4  L.R.A.  801,  which 
holds  carrier  liable  for  needless  delay,  confinement,  and  bruising  of  live  stock. 
Admission  by  failure  to  deny  allegations  of  pleading. 

Cited  in  International  &  G.  N.  R.  Co.  v.  Ing,  29  Tex.  Civ.  App.  399,  68  S.  W. 
722,  holding  in  an  action  for  wrongful  ejectment  from  a  train  plaintiff  who  al- 
leges his  ticket  was  issued  by  defendant  need  not  prove  such  issuance  where  such 
allegation  is  not  denied. 


4  L.R.A.  549]  L.  R.  A.  CASES  AS  AUTHORITIES.  724 

4  L.R.A.  549,  LOUISVILLE,  X.  A.  &  C.  R.  CO.  v.  HART,  119  IXD.  273,  21  X. 

E.  753. 
Liability  for  fire  spreading-  to  other  land. 

Cited  in  Lake  Erie  &  W.  R.  Co.  v.  Clark,  7  Ind.  App.  156.  52  Am.  St.  Rep.  442,. 
34  X.  E.  587;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Iddings,  28  Ind.  App.  512,  62 
X'.  E.  112,  Cleveland,  C.  Cfl  &  St.  L.  R.  Co.  v.o  Hadlt-y.  12  Ind.  App.  523,  40  X.  E. 
760;  Chicago  &  E.  R.  Co.  v.  Bailey,  19  Ind.  App.  167,  40  X.  E.  G88, — holding 
railroad  liable  for  fire  due  to  accumulated  material  on  its  right  of  way;  Fien  v. 
Louisville,  N.  A.  &  C.  R.  Co.  15  Ind.  App.  308,  44  X.  E.  45,  holding  railroad 
liable  for  fire  spreading  on  its  own  land  without  efforts  by  its  employees  to  put 
it  out;  Lake  Erie  &  W.  R.  Co.  v.  Miller,  24  Ind.  App.  664,  57  X.  E.  596,  holding 
railroad  liable  for  negligently  permitting  fire,  set  upon  its  own  land,  to  escape; 
Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Indiana  Horseshoe  Co.  154  Ind.  331,  56  X.  E. 
766.  holding  railroad  negligent  for  permitting  accumulation  of  dry  material,  and 
not  attempting  to  put  out  fire;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Wise,  36  Ind. 
App.  63,  74  N.  E.  1107,  on  liability  of  railroad  company  where  fire  spreads  from 
right  of  way  to  adjoining  land. 

Cited  in  footnote  to  Xorfolk  &  W.  R.  Co.  v.  Fritts,  68  L.R.A.  864,  which  sus- 
tains liability  for  fire  of  railroad  company  unnecessarily  running  heavy  freight 
train  up  grade  at  doiible  its  scheduled  speed  in  dry  season  and  during  heavy  wind. 

Cited  in  note   (9  L.  R.  A.  750)   on  duty  and  obligation  of  railroad  company  to 
guard  against  setting  of  fire. 
Special    verdict. 

Cited  in  Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Grames,  8  Ind.  App.  142,  34  N.  E. 
613,  holding  instructions  as  to  negligence  and  contributory  negligence  improper 
when  special  verdict  to  be  returned;  Louisville,  X.  A.  &  C.  R.  Co.  v.  Lynch,  147 
Ind.  174,  34  L.  R.  A.  296.  44  X.  E.  997,  holding  general  instructions  inappropriate 
Nfhere  special  verdict  required;  Cook  v.  McXaughton,  128  Ind.  417,  28  X.  E.  74, 
holding  special  verdict  not  too  defective  to  warrant  judgment  when  it  finds  all 
facts  necessary  to  recovery;  Lake  Shore  &  M.  S.  R.  Co.  v.  Stupak,  123  Ind.  224, 
23  N.  E.  246,  holding  submission  of  draft  of  special  verdict  by  opponent  cannot  be 
objected  to  because  of  omission  of  facts;  Xicodemus  v.  Simons,  121  Ind.  569,  23- 
X.  E.  521,  holding  facts,  about  which  special  verdict  silent,  treated  as  though 
found  against  party  required  to  prove  them :  Western  U.  Teleg.  Co.  v.  Xewhouse, 
6  Ind.  App.  423,  33  X.  E.  800,  holding  court  must  charge  jury  as  to  law  gov- 
erning measure  of  damages  where  special  verdict  required  rendering  them;  Ross 
v.  Hobson,  131  Ind.  169,  26  X.  E.  775:  Hamilton  v.  By  ram.  122  Ind.  286,  23 
X.  E.  795;  Xicodemus  v.  Simons,  121  Ind.  566,  23  X.  E.  521;  Citizens  Bank  v. 
Bolen,  121  Ind.  304,  23  X.  E.  146,  —  holding  renirc  de  novo  not  proper  remedy 
when  special  finding  not  defective  in  form ;  Germania  F.  Ins.  Co.  v.  Columbia 
Encaustic  Tile  Co.  11  Ind.  App.  388,  39  X.  E.  304,  holding  venire  de  novo  not 
proper  remedy  for  finding  mere  evidenciary  facts  in  special  verdict;  Evansville  & 
T.  H.  R.  Co.  v.  Tait,  2  Ind.  App.  242,  28  X.  E.  443.  holding  failure  to  find  on 
particular  matter  in  issue  no  ground  for  venire  de  novo;  Roller  v.  Kling,  150 
Ind.  162,  49  X.  E.  948,  holding  general  instructions  in  case  of  special  verdict 
harmless. 
Effect  of  fnilnre  to  find. 

Cited  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Johnson,  3  Okla.  53,  41  Pac.  641,  holding 
answer  by  the  jury  that  they  did  not  know  whether  conductor  knew  injured 
party  was  on  train  equivalent  to  finding  he  did  not  know  it;  Cochran  v.  Thomas, 
131  Mo.  278.  33  S.  \V.  6,  holding  refusal  of  court  to  state  conclusion  of  law  equiva- 
lent to  its  being  held  immaterial :  Manor  v.  Jay  County.  137  Ind.  390,  34  N.  E. 
959,  holding  failure  by  court  to  find  material  fact  equivalent  to  finding  it  against 


725  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  555 

part\T  required  to  prove  it:  Chicago  &  E.  R.  Co.  v.  Field,  7  Ind.  App.  176.  52 
Am.  St.  Rep.  444,  34  X.  E.  406,  holding  failure  to  find  party  a  passenger  equiva- 
lent to  finding  he  was  not;  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v.  O'Brien,  142  Ind. 
222,  41  N.  E.  528,  holding  failure  to  find  right  of  possession  in  action  for  pos- 
session of  real  estate  equivalent  to  finding  against  right;  Belshaw  v.  Chitwood, 
141  Ind.  381,  40  X.  E.  908,  and  Racer  v.  Wingate,  138  Ind.  126,  36  N.  E.  538, 
holding  verdict,  silent  as  to  essential  fact,  equivalent  to  finding  against  party 
with  burden  of  proof. 
Variance  between  allegations  and  proof. 

Cited  in  Southern  Indiana  R.  Co.  v.  Hoggatt,  35  Ind.  App.  349,  73  X.  E.  1096, 
holding  where  plaintiff  alleged  injuries  were  due  to  the  defective  condition  of 
handle-bar  and  cog-wheel  of  hand  car,  proof  that  the  handle-bar  was  negligently 
allowed  to  become  defective  would  entitle  plaintiff  to  recover  although  no  proof 
of  defective  cog-wheel  was  offered. 

4  L.  R.  A.  555,  MOORE  v.  KEXOCKEE  TVVP.  75  Mich.  332,  42  X.  W.  944. 
Constructive    notice. 

Cited  in  Campbell  v.  Kalamazoo,  80  Mich.  661,  45  X.  W.  652,  holding  munici- 
pality need  not  have  actual  notice  or  knowledge  of  defective  sidewalks;  Randall 
v.  Southfield  Twp.  116  Mich.  504,  74  X.  W.  716,  and  Blank  v.  Livonia  Twp.  95 
Mich.  234,  54  X.  W.  877,  holding  question  for  jury  whether  highway  commis- 
sioner, by  repairing  bridge,  had  notice  of  its  defects;  Alberts  v.  Vernon,  96 
Mich.  550,  55  X.  W.  1022,  holding  evidence  of  others  tripping  on  defective 
walk  before  accident  competent,  as  bearing  upon  constructive  notice;  Corey  v. 
Smalley,  106  Mich.  260,  58  Am.  St.  Rep.  474,  64  X.  W.  13,  holding  possession 
of  land  by  contract  purchaser  constructive  notice  of  his  rights;  Aben  v. 
Ecorse  Twp.  113  Mich.  11,  71  X.  W.  329,  holding  notice  of  defective  condition 
of  bridge  question  for  jury,  under  circumstances  of  case;  Snyder  v.  Albion,  113 
Mich.  280,  71  X.  W.  475,  holding  long-standing  defects  sufficient  to  arrest  at- 
tention of  passers-by,  constructive  notice;  McEvoy  v.  Sault  Ste  Marie,  136  Mich. 
175,  98  X.  W.  1006.  holding  actual  notice  to  superintendent  of  city  streets  of  an 
obstruction  is  notice  to  the  city. 

Cited  in  footnote  to  Thomas  v.  Flint,  47  L.  R.  A.  499,  which  holds  mere 
existence  of  defect  in  bridge  for  two  or  three  days  not  constructive  notice  to  city. 

Distinguished  in  Thomas  v.  Flint,  123  Mich.  12,  47  L.  R.  A.  501,  81  X.  W.  936, 
holding  liability  cannot  be  predicated  on  failure  to  make  inspections  merely. 
Effect  of  new  law  upon  rights  accruing-  under  former  statute. 

Cited  in  Dennison  v.  Allen,  106  Mich.  300,  64  X.  W.  38,  holding  pending 
suit  not  affected  by  repealing  act  without  saving  clause,  substantially  re-enact- 
ing law  repealed;  Brady  v.  Hayward,  114  Mich.  331,  72  X.  W.  233,  holding  pro- 
ceedings under  statute  not  terminated  by  subsequent  amendment;  Atty.  Gen. 
v.  Railroad  Commissioners,  117  Mich.  480,  76  X.  W.  69,  holding  statute  re- 
vising whole  subject  of  former  statute,  intended  as  substitute,  repeals  by  im- 
plication; Reynolds  v.  Bowen,  138  Ind.  450,  36  X.  E.  756,  holding  re-enactment 
of  section  of  old  law  keeps  section  in  force  without  interruption;  State  v.  Kates, 
149  Ind.  48,  48  X.  E.  365,  holding  re-enactment  not  a  repeal  of  a  statute;  White 
Sowing  Mach.  Co.  v.  Harris,  161  111.  App.  131  (dissenting  opinion),  on  whether 
foreign  corporation  which  has  complied  with  law  as  to  license  to  do  business 
must  comply  with  new  act  on  same  subject;  Sayer  v.  Brown,  119  Ga.  547,  46  S. 
E.  649,  holding  an  act  is  not  repealed  by  a  subsequent  act  which  provides  that 
certain  section  of  the  former  act  be  stricken  out  and  new  matter  enacted  in  lieu 
thereof;  People  v.  Schoenberg,  161  Mich.  94,  125  X.  W.  779,  holding  the  substan- 
tial re-enactment  by  repealing  statute  without  a  saving  clause,  of  the  laws  re- 


4  L.R.A.  555]  L.  R.  A.  CASES  AS  AUTHORITIES.  726 

pealed  will  not  affect  pending  suits;  Great  Northern  R.  Co.  v.  United  States,  84 
C.  C.  A.  93,  155  Fed.  950;  State  ex  rel.  Ruesswig  v.  McDonald,  101  Minn.  354,  112 
N.  W.  278, — on  the  amendment  or  revision  of  a  statute  as  not  affecting  proceed- 
ings pending. 

Cited  in  footnote  to  Tufts  v.  Tufts,  16  L.  R.  A.  482,  which  holds  cause  of  ac- 
tion for  divorce  not  taken  away  by  repeal  of  statute. 

Cited  in  note  (5  L.  R.  A.  315)  on  when  repeal  of  statute  does  not  affect  prior 
suit. 

Distinguished  in  Detroit  v.  Chapin,  108  Mich.  143,  37  L.  R.  A.  398,  66  N.  W. 
587,  holding  proceedings  under  law  repealed  by  materially  different  act,  without 
saving  clause,  terminated  thereby. 
Municipal   duty  as   to   bridges. 

Cited  in  note  (27  L.R.A.  (N.S.)  833)  on  municipal  duty  to  construct  and  main- 
tain bridges  in  condition  to  sustain  unusual  weight. 
Expert  evidence. 

Cited  in  Dardanelle  Pontoon  Bridge  &  Turnp.  Co.  v.  Crooin,  95  Ark.  290,  30-' 
L.R.A.(N.S.)   366,  129  S.  W.  280,  admitting  opinion  of  expert  that  guard  rail  of 
toll  bridge  was  improperly  constructed. 
Adin  i»i  i»i  III  y  of  evidence  of  similar  conditions. 

Cited  in  Lamed  v.  Vanderlinde,  165  Mich.  468,  131  X.  W.  165,  holding  inad- 
missible, evidence  of  other  accidents  at  place  of  injury  to  show  its  dangerous 
condilfon. 

4  L.  R.  A.  561,  NASH  v.  JEWETT,  61  Vt.  501,  15  Am.  St.  Rep.  931,  18  Atl.  47, 
Infancy  as  defense. 

Cited  in  Slayton  v.  .Barry,  175  Mass.  514,  49  L.  R.  A.  561,  footnote  p.  560,  78 
Am.  St.  Rep.  510,  56  N.  E.  574,  holding  infant  cannot  be  held  for  tort  aris- 
ing out  of  contract  which,  by  his  false  representations  as  to  age,  other  party 
was  induced  to  make;  Little  v.  Gallus,  4  App.  Div.  584,  38  N.  Y.  Supp.  487  (dis- 
senting opinion)  majority  holding  that  manufacturer  of  typewriter  ribbon 
has  implied  contract  with  minor  employee  in  confidential  relation  not  to  divulge 
trade  secrets;  Caswell  v.  Parker,  96  Me.  40,  51  Atl.  238,  holding  infancy  good 
defense  to  action  against  minor  for  conversion  of  shoes  taken  by  him  to  be  sold 
on  commission. 

Cited  in  footnote  to  Eliot  v.  Eliot,  15  L.  R.  A.  259,  which  holds  infant  not 
estopped  by  fraudulent  declaration  as  to  age. 

Cited  in  notes  (57  L.R.A.  679)  on  liability  of  infant  for  torts;  (18  Am.  St, 
Rep.  721)  on  contracts  of  infants. 

4  L.  R.  A.  563,  CORNWALL  v.  DAVIS,  38  Fed.  878. 

Reaffirmed  on  final  hearing  in  44  Fed.  533,  which  was  Affirmed  in  156  U.  S.. 
680,  39  L.  ed.  578,  15  Sup.  Ct.  Rep.  555. 
Estoppel   to  deny  validity  of  jnflgrment. 

Cited  in  De  Kohly  v.  Fernandez,  58  Misc.  29,  110  N.  Y.  Supp.  398,  holding  plain- 
tiff having  pleaded  the  judgment  of  an  intermediate  court  of  appeal  in  reply  to  a 
supplemental  answer  is  estopped  from  questioning  the  jurisdiction  of  the  courts. 

4  L.  R.  A.  566,  MANSFIELD  v.  NEW  YORK  C.  &  H.  R.  R.  CO.  114  N.  Y.  331, 

21    N.   E.   735,    1037. 
Interest    on    damag-es. 

Cited  in  Brush  v.  Long  Island  R.  Co.  10  App.  Div.  540,  42  N.  Y.  Supp.  103, 
holding  exception  to  instruction  of  jury  in  relation  to  interest  on  damages  un- 
available; Hood  v.  Hay  ward,  124  N.  Y.  23,  26  N.  E.  331,  holding  interest  be- 


727  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  572 

gan  to  run  from  time  breach  of  bond  was  adjudicated  and  damages  thus  li- 
quidated; Laycock  v.  Parker,  103  Wis.  132,  79  N.  W.  327,  holding  interest  allow- 
able from  date  of  demand  where  market  value  of  items  reasonably  certain;  Weber 
&  Co.  v.  Hearn,  49  App.  Div.  217,  63  N.  Y.  Supp.  41;  Delafield  v.  Westfield,  41 
App.  Div.  29,  58  N.  Y.  Supp.  277;  Sloan  v.  Baird,  12  App.  Div.  486,  42  N.  Y. 
Supp.  38;  Gray  v.  Central  R.  Co.  89  Hun,  478,  35  N.  Y.  Supp.  378;  Button  v.  Kin- 
netz,  88  Hun,  39,  34  N.  Y.  Supp.  522;  Benedict  v.  Sliter,  82  Hun,  198,  31  N.  Y. 
Supp.  413;  Reich  v.  Colwell  Lead  Co.  50  N.  Y.  S.  R.  300,  21  N.  Y.  Supp.  495; 
Sloan  v.  Baird,  162  N.  Y.  329,  56  N.  E.  752;  Button  v.  Kinnetz,  88  Hun,  39,  68 
N.  Y.  S.  R.  307,  34  N.  Y.  Supp.  522;  Sayre  v.  State,  123  N.  Y.  297,  25  N.  E.  163, 
—  holding  interest  on  unliquidated  damages  not  recoverable ;  Jamieson  v.  New 
York  &  R.  B.  R.  Co.  11  App.  Div.  54,  42  N.  Y.  Supp.  915,  holding  instruction 
to  compute  interest  on  unliquidated  damages  in  tort  error;  Peetsch  v.  Quinn,  7 
.Mi-c.  7,  27  N.  Y.  Supp.  323,  holding  interest  recoverable  on  account  for  goods 
sold  from  time  of  delivery;  Hopkins  v.  Clark,  90  Hun,  8,  35  N.  Y.  Supp.  360, 
holding  interest  recoverable  from  commencement  of  action;  Gray  v.  Central 
R.  Co.  157  N.  Y.  486,  52  N.  E.  555,  holding  interest  cannot  be  recovered  on  dam- 
ages for  breach  of  contract  to  buy  steamboat  in  absence  of  proof  of  market 
value:  Sloan  v.  Baird,  30  N.  Y.  Civ.  Proc.  Rep.  363,  holding  interest  was  not 
recoverable  on  unliquidated  damages  for  breach  of  contract  of  sale  of  property 
where  such  property  had  no  established  market  value;  Chamberlain  v.  Dunlop, 
5  Silv.  Sup.  Ct.  105,  8  X.  Y.  Supp.  125,  holding  interest  was  not  recoverable  on 
an  unliquidated  claim  for  damages  for  failure  to  rebuild  under  terms  of  lease; 
Helene  v.  Corn  Exch.  Bank,  96  App.  Div.  395,  89  X.  Y.  Supp.  310,  holding  party 
making  a  demand  on  a  bank  to  pay  over  money,  which  is  refused,  may  recover 
interest  on  such  claim  if  entitled  to  recover;  Anthony  v.  Moore  &  M.  Co.  135 
App.  Div.  205.  120  X.  Y.  Supp.  402,  holding  interest  was  not  recoverable  on  a 
claim  for  damages  for  failure  to  repair  an  automobile;  Hood  v.  Hay  ward,  20  N. 
Y.  Civ.  Proc.  Rep.  68  (dissenting  opinion),  on  interest  as  not  beginning  to  run 
until  damages  are  liquidated. 

Cited  in  notes  (28  L.R.A. (X.S.)  26)  on  interest  on  unliquidated  damages; 
(14  Eng.  Rul.  Cas.  562)  as  to  when  interest  will  be  allowed. 

4  L.  R.  A.  572,  ULBRICHT  v.  EUFAULA  WATEK  CO.  86  Ala.  587,   11  Am. 

St.  Rep.  72,  6  So.  78. 
"When    injunction    lies. 

Cited  in  Graves  v.  Smith,  87  Ala.  453,  5  L.  R.  A.  300,  13  Am.  St.  Rep.  60,  6 
So.  308.  sustaining  injunction  restraining  part  owner  of  party  wall  from  mak- 
ing windows  or  other  openings  in  it;  Jones  v.  Conn,  39  Or.  44,  54  L.  R.  A. 
635,  87  Am.  St.  Rep.  634,  64  Pac.  855,  and  Franklin  v.  Pollard  Mill  Co.  88  Ala. 
323,  6  So.  685,  holding,  where  special  damages  are  not  shown,  injunction  will 
only  issue  to  prevent  acquisition  of  prescriptive  right  to  divert  water;  Brasher 
v.  Miller,  114  Ala.  489,  21  So.  467,  refusing  to  enjoin  payment  of  teacher 
because  of  illegal  contract  of  employment. 

Cited  in  notes   (7  Eng.  Rul.  Cas.  485)   on  liability  to  indictment  or  injunction 
of  public  service  corporation  exceeding  its  powers;    (10  Eng.  Rul.  Cas.  313)   on 
mandatory  injunction  for  protection  of  easement. 
Measure    of    damages. 

Distinguished  in  Green  Bay  &  M.  Canal  Co.  v.  Kaukauna  Water  Power  Co. 
112  Wis.  335,  62  L.  R.  A.  587,  87  N.  W.  864,  holding  appropriator  of  water 
power  created  by  dam  liable  for  rental  value  of  power,  though  not  in  use  by 
owner. 


4  L.R.A.  572]  L.  R.  A.  CASES  AS  AUTHORITIES.  728 


of  riparian  owners. 

Cited  in  Tennessee  Coal,  I.  &  R.  Co.  v.  Hamilton,  100  Ala.  258,  46  Am.  St.  Rep. 
48.  14  So.  167,  holding  upper  riparian  owner  cannot  unfit  river  for  domestic  use, 
or  cause  it  to  fill  channel  and  deposit  debris;  Webster  v.  Harris,  111  Tenn.  700,  59 
L.R.A.  332,  69  S.  W.  782,  holding  equity  will  protect  owner  of  lake  land  from 
draining  of  lake  by  other  riparian  owners;  Meng  v.  Coffey,  67  Neb.  512.  60  L.R.A. 
914,  93  N.  W.  713,  upholding  right  of  riparian  owner  to  take  reasonable  quantity 
of  water  from  stream  for  irrigation  purposes;  People  v.  Hulbert,  131  Mich.  173, 
64  L.R.A.  275,  91  N.  W.  211,  upholding  right  of  upper  riparian  owner  to  bathe  in 
lake  although  lower  owner  draws  water  supply  therefrom;  Alabama  Consol.  Coal 
&  I.  Co.  v.  Turner,  145  Ala.  651,  117  Am.  St.  Rep.  61,  39  So.  603,  holding  the  un- 
disturbed enjoyment  of  the  waters  of  a  stream  by  a  riparian  owner  for  a  period 
of  ten  years  with  the  knowledge  of  lower  riparian  owner  raises  a  presumption 
of  title  as  against  right  of  lower  owner  wrhich  might  have  been  asserted;  Central 
R.  Co.  v.  Champion,  160  Ala.  521,  49  So.  415,  holding  a  riparian  owner  might 
enjoin  the  obstruction  of  a  stream  by  a  railroad  in  such  a  way  as  to  cause  the 
water  to  back  onto  complainant's  land;  Meng  v.  Coffee,  67  Neb.  512,  60  L.R.A. 
$10,  108  Am.  St.  Rep.  697,  93  N.  W.  713,  holding  a  riparian  owner  might  use 
waters  of  a  stream  for  irrigation  purposes  where  such  use  is  reasonable  with 
reference  to  the  character  and  size  of  stream  and  the  uses  put  to  by  other  ri- 
parian owners;  Webster  v.  Harris,  111  Tenn.  700,  59  L.R.A.  324,  69  S.  W.  782, 
•on  right  of  riparian  owner  to  protect  his  enjoyment  of  a  stream  by  injunction 
and  also  citing  annotations  on  this  point;  North  Alabama,  C.  I.  &  R.  Co.  v.  Jones, 
156  Ala.  367,  47  So.  144,  on  riparian  owner  as  having  a  right  to  have  a  stream 
flow  through  his  land  without  material  diminution  or  alteration  in  quality. 

Cited  in  footnotes  to  Gould  v.  Eaton,  38  L.  R.  A.  181,  which  denies  riparian 
owner's  power  to  transfer  right  to  divert  water  from  stream  to  use  on  nonripa- 
rian  land;  Stock  v.  Jefferson,  38  L.  R.  A.  355,  which  holds  diversion  of  water 
from  mill  without  compensation  not  justified  by  improvement  of  highways, 
•drainage  of  land,  or  general  improvement  of  country. 

Cited  in  notes  (5  L.  R.  A.  62;  5  L.  R.  A.  689)  on  riparian  rights  of  owners 
bounding  on  navigable  streams;  (7  L.  R.  A.  613)  on  riparian  rights;  (8  L.  R. 
A.  578)  on  property  in  unnavigable  lakes;  (9  L.  R.  A.  195)  on  franchise  of 
water  companies;  (9  L.  R.  A.  812)  on  riparian  right  to  use  of  waters  of 
stream;  (41  L.  R.  A.  740,  743)  on  correlative  rights  of  upper  and  lower  proprie- 
tors as  to  use  and  flow  of  water  in  stream;  (37  L.R.A.  (N.S.)  312,  313)  on  right 
of  government  to  divert  water  without  compensation  to  riparian  owner;  (81 
Am.  St.  Rep.  485)  on  liability  of  water  companies  to  riparian  owners  for  taking 
water  from  stream;  (10  Eng.  Rul.  Cas.  217)  on  riparian  owner's  right  to  use  of 
stream. 
Subsurface  water. 

Cited  in  Tampa  Waterworks  Co.  v.  Cline,  37  Fla.  602,  33  L.  R.  A.  382,  53 
Am.  St.  Rep.  262,  20  So.  780,  holding  subsurface  water  without  known  channel 
may  be  appropriated  by  owner  of  soil. 

4  L.  R.  A.  575,  ANHEUSER-BUSCH  BREWING  ASSO.  v.  HUTMACHER,  127 
111.  652,  21  N.  E.  626. 

Garnishee    proceedings    in    Hutmacher    v.    Anheuser-Busch    Brewing    Asso.    71 
111.   App.    156. 
Vilin  i->ihili  t  >     of    copy    of    telegrraph    message    in    evidence. 

Cited  in  Nickerson  v.  Spindell,  104  Mass.  28,  41  N.  E.  105,  holding  sender 
of  telegram  taking  initiative,  message  delivered  may  be  treated  as  original  be- 
tween him  and  receiver;  Bond  v.  Hurd,  31  Mont.  319,  78  Pac.  579,  3  A.  &  E.  Ann. 


729  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  58:i 

Cas.  566.  holding  the  reply  telegram  delivered  to  the  telegraph  company  and  not 
the  one  delivered  by  the  company  was  the  original  for  evidentiary  purposes. 

Cited  in  notes  (50  L.R.A.  253)  on  telegram  as  writings  to  make  contract  with- 
in statute  of  frauds;   (110  Am.  St.  Rep.  745)  on  contracts  by  telegraph. 
Proper   cross-examination. 

Cited  in  Schmidt  v.  Chicago  C.  R.  Co.  239  111.  499,  b8  N.  E.  275,  on  necessity 
that  cross-examination  be  limited  to  facts  elicited  by  the  examination  in  chief. 

Cited  in  note  (11  Eng.  Rul.  Cas.  171)   on  right  to  cross-examine  witness  called 
and  sworn  though  not  examined. 

4  L.  R.  A.  579,  BOLZER  v.  PEOPLE,  129  ill.  112,  21  N.  E.  818. 
Threats  as   evidence   on  trial   for  homicide. 

Cited  in  note  (21  Am.  St.  Rep.  355)  on  threats  as  evidence  on  trial  for  homi- 
cide. 
Heat  of  passion  redncingr  degree  of  homicide. 

Cited  in  note  (5  L.R.A.(X.S.)  821,  826)  on  heat  of  passion  which  will  mitigate 
or  reduce  degree  of  homicide. 

4  L.  R.  A.  582,  FARRIS  v.  PEOPLE,  129  111.  521,  16  Am.  St.  Rep.  283,  21  N.  E. 

821. 
Acliiiisailtility  of  evidence  of  other  crimes. 

Cited  in  State  v.  Kent,  5  X.  D.  549,  35  L.  R.  A.  530,  67  N.  W.  1052,  holding 
evidence  of  former  crimes  admissible  to  show  motive  for  murder  of  wife;  Bishop 
v.  People,  194  111.  369,  62  X.  E.  785,  holding  evidence  as  to  commission  of 
wholly  different  and  unconnected  crime  inadmissible  to  prove  theft;  State  v. 
May,  142  Mo.  154,  43  S.  W.  637,  holding  evidence  of  resistance  to  arrest  of  ac- 
cused subsequent  to  homicide  inadmissible;  People  v.  Lane,  100  Cal.  387,  34  Pac. 
856,  holding  evidence  of  shots  fired  at  another  man  outside  of  house  when 
and  just  after  murder  committed,  inadmissible;  Proper  v.  State,  85  Wis.  629, 
55  X.  W.  1035,  holding  evidence  of  intercourse  on  former  occasions  with  older 
girl  in  presence  of  victim  of  assault  admissible;  Moore  v.  United  States,  150- 
U.  S.  61,  37  L.  ed.  998,  14  Sup.  Ct.  Rep.  26,  holding  evidence  that  murdered  man 
had  been  at  place  of  another  murder  not  incompetent  as  tending  to  connect  him 
with  latter  crime;  Dubois  v.  People,  200  111.  163,  93  Am.  St.  Rep.  183,  65  X.  E. 
658,  holding  evidence  that  confidence  game  had  been  worked  by  accused  before 
admissible  in  showing  guilty  knowledge;  Gorgo  v.  People,  100  111.  App.  132, 
holding  evidence  of  assault  on  another  just  before  that  for  which  accused 
charged  admissible;  Towne  v.  People,  89  111.  App.  283,  holding  evidence  of 
former  conspiracy  to  wreck  association  not  admissible  in  proceeding  for  crim- 
inal conspiracy  to  injure  business;  Williams  v.  People,  166  111.  134,  46  X.  K. 
749,  holding  evidence  that  accused  was  engaged-  with  others  in  following  show 
in  order  to  steal  and  pick  pockets  admissible  on  charge  of  assault  to  steal;  Paint- 
er v.  People,  147  111.  463,  35  X.  E.  04,  holding  evidence  of  former  assault* 
on  woman  competent  in  trial  for  her  murder;  Lyons  v.  People,  137  111.  613, 
•J7  X.  E.  (577.  holding  evidence  of  stabbing  of  woman,  in  trial  for  murder  of 
man  when  both  grew  out  of  same  quarrel,  admissible;  Henry  v.  People,  198  111. 
187,  65  X.  E.  120,  holding  evidence  of  threats  against  deceased  shortly  prior  to- 
murder  admissible;  Addison  v.  People,  193  111.  410,  62  X.  E.  235,  holding  evi- 
dence that  accused  had  been  drinking  a  short  time  before  or  on  the  day  of 
assault  inadmissible;  Glover  v.  People,  204  111.  177,  68  N.  E.  464,  holding  evidence 
of  previous  threats  admissible  on  charge  of  extortion:  Colonial  Mut.  F.  Ins.  Co. 
v.  Ellingcr,  112  111.  App.  309,  holding  that  upon  issue  of  incendiarism,  proof  of 
other  fires  than  one  charged  incompetent;  Raines  v.  State,  81  Miss.  497,  33 


4  L.R.A.  532]  L.  R.  A.  CASES  AS  AUTHORITIES.  730 

19,  holding  evidence  of  previous  ill-treatment,  assaults,  threats  of  divorce, 
and  shot  holes  in  wall,  incompetent  on  issue  whether  accused  murdered  his 
wife;  State  v.  Fitchette,  88  Minn.  149,  92  X.  W.  527,  holding  evidence  of 
similar  offense  inadmissible  on  trial  of  one  accused  of  receiving  reward  for 
procuring  appointment;  People  v.  Blevins,  251  111.  393,  96  X.  E.  214,  Ann.  Cas. 
1912  C,  451,  holding  that  admission  of  evidence  that  accused  had  pleaded  guilty 
to  a  crime  is  prejudicial  error;  People  v.  Jennings,  252  111.  544,  —  L.R.A.(X.S.) 
— ,  96  X.  E.  1077,  holding  admissible,  evidence  that,  shortly  before  crime,  accused 
was  seen  near  scene  of  crime,  though  he  was  engaged  in  other  offenses  vs  hen 
seen;  State  v.  Hazlet,  16  X.  D.  438,  113  X.  W.  374,  holding  in  a  prosecution  for 
murder  the  court  erred  in  permitting  proof  that  defendant  had  committed  the 
crime  of  sodomy;  Schultz  v.  People,  210  111.  204,  71  X.  E.  405,  holding  where 
defendant  was  charged  with  having  received  certain  stolen  goods  with  knowledge 
of  the  theft  it  was  error  for  the  court  to  admit  in  evidence  other  property  claimed 
to  have  come  into  defendant's  possession  in  the  same;  State  v.  Kelliher,  49  Or. 
84,  88  Pac.  867,  holding  in  a  prosecution  for  forgeries  evidence  of  other  forgeries 
by  defendant  are  inadmissible;  Sorenson  v.  United  States,  94  C.  C.  A.  181,  168 
Fed.  794,  on  the  admissibility  of  evidence  of  other  crimes. 

Cited  in  notes  (62  L.R.A.  197,  201)  on  evidence  of  other  crimes  in  criminal 
case;  (105  Am.  St.  Rep.  981,  1001)  on  admissibility  of  evidence  of  other  crimes. 

Distinguished  in  Thompson  v.  United  States,  75  C.  C.  A.  172,  144  Fed.  18,  7 
A.  &  E.  Ann.  Cas.  62,  holding  on  trial  of  defendant  for  counterfeiting  in  connec- 
tion with  another,  such  other  person  might  properly  testify  that  prior  to  such 
act  defendant  stated  he  was  liable  to  arrest  for  abortion  and  wanted  the  money 
to  deposit  for  bail  in  such  case;  People  v.  Hagenow,  236  111.  528,  86  X.  E.  370, 
holding  in  a  prosecution  of  accused  for  causing  the  death  of  a  patient  by  pro- 
ducing an  abortion,  evidence  that  she  held  herself  out  as  engaged  in  such  a  busi- 
ness and  that  she  had  caused  abortions  on  several  women  resulting  in  their  death 
was  admissive. 
Admissibility  of  collateral  evidence  In  criminal  cases. 

Cited  in  State  v.  Moore,  77  Kan.  740,  95  Pac.  409,  on  the  inadmissibility  of 
collateral  facts  not  connected  with  the  subject-matter  in  the  trial  of  a  criminal 
case. 
Motive  in  homicide. 

Cited  in  Clefford  v.  People,  229  111.  640,  82  N.  E.  343,  holding  evidence  of 
motive  was  not  essential  to  constitute  murder  where  the  evidence  showed  beyond 
a  reasonable  doubt  that  accused  killed  deceased  with  malice  aforethought. 

Cited  in  note  (8  Eng.  Rul.  Cas.  87)  on  evidence  of  subsequent  acts  to  prove 
intent  or  motive  for  crime. 

4  L.  R.  A.  586,  XATIOXAL  BAXK  v.  BAKER,  128  111.  533,  21  N.  E.  510. 
Action  on   appeal  bond   in  Xational   Bank   v.   Baker,   58   111.   App.   344. 
Sale  of   stock  pledged   as   collateral   security. 

Cited  in  Huiskamp  v.  West,  47  Fed.  249,  holding  under  Illinois  law  pledgee  of 
stock  as  collateral  cannot  sell  until  after  default  and  demand;  Hiscock  v.  Varick 
Bank,  206  U.  S.  38,  51  L.  ed.  952,  27  Sup.  Ct.  Rep.  681,  holding  a  sale  of  collateral 
security  at  public  auction  without  notice  and  the  purchase  thereof  by  the  pledgee 
are  not  void  as  against  the  trustee  in  bankruptcy  of  pledger  the  contract  of 
pledger  permitting  and  there  being  no  fraud. 

Cited  in  notes  (43  L.R.A.  747,  755)  on  pledgee's  conversion  of  pledged  property 
by  invalid  sale;  (121  Am.  St.  Rep.  201)  on  rights,  remedies,  and  liabilities  of 
pledgees  of  corporate  stock. 


731  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  594 

4  L.  R.  A.  589,  WILSOX  v.  BUTLER  COUNTY,  26  Neb.  676,  42  N.  W.  891. 
Recovery  of  amount   paid  at  illegral  tax  Bale  or  for  illegal   taxes. 

Cited  in  Fuller  v.  Colfax  County,  33  Neb.  723,  50  N.  W.  1044,  holding  county 
liable  to  purchaser  for  amount  paid,  with  interest ;  Pennock  v.  Douglas  County, 
39  Xeb.  297,  27  L.  R.  A.  124,  42  Am.  St.  Rep.  579,  58  N.  W.  117,  dismissing  claim 
for  repayment  for  failure  to  pursue  proper  statutory  remedy;  Kelley  v.  Gage 
County,  67  Xeb.  10,  93  X.  W.  194,  holding  county  not  liable  where  a  sale  of  real 
estate  for  nonpayment  of  taxes  is  void  because  of  irregularities  on  the  part  of 
officials  of  a  city  levying  such  taxes  for  special  improvements;  Joliet  Stove 
Works  v.  Kiep,  230  111.  557,  82  X.  E.  875,  12  A.  &  E.  Ann.  Cas.  227,  holding  a 
purchaser  at  an  illegal  tax  sale  paying  subsequent  taxes  on  the  property  may 
recover  such  taxes  from  the  owner. 

Cited  in  footnotes  to  Budge  v.  Grand  Forks,  10  L.  R.  A.  165,  which  holds 
purchaser  at  invalid  tax  sale  not  entitled  to  recover  from  city  money  paid; 
Pennock  v.  Douglas  County,  27  L.  R.  A.  121,  which  denies  power  to  compel  city 
to  refund  money  received  on  void  sale  for  special  assessment;  St.  Anthony  & 
D.  Elevator  Co.  v.  Soucie,  50  L.  R.  A.  262,  which  sustains  right  to  recover  illegal 
taxes  paid  under  protest  to  prevent  tax  collector's  sale  of  personal  property 
constructively  seized;  C.  &  J.  Michel  Brewing  Co.  v.  State,  70  L.R.A.  911,  which 
holds  that  requiring  foreign  corporation  to  pay  license  fee  as  condition  precedent 
to  sale  of  products  within  state  or  subject  itself  to  penalties  supposed  to  be 
prescribed  by  statute  not  such  compulsion  as  will  entitle  it  to  recover  amounts 
paid  on  statute  being  held  unconstitutional. 

Cited  in  note   (12  L.  R.  A.  619)  on  remedy  for  levy  of  assessment  by  mistake. 

Distinguished  in  Martin  v.  Kearney  County,  62  Neb.  543,  87  N.  W.  351,  hold- 
ing  purchaser   of   property   at   unauthorized   tax   sale   cannot   recover    purchase 
money   without   statutory   authority. 
Payment  of  taxes   to  protect  purchaser's  interest   In  land. 

Cited  in  John  v.  Connell,  61  Xeb.  270,  85  N.  W.  82,  holding  owner  of  suppos- 
edly valid  tax-sale  certificate,  paying  subsequent  taxes,  entitled  to  subrogation. 

4  L.  R.  A.  594,  RYCHLICKI  v.  ST.  LOUIS,  98  Mo.  497,  14  Am.  St.  Rep.  651,  11 

S.  W.  1001. 
Surface  waters. 

Cited  in  Cannon  v.  St.  Joseph,  67  Mo.  App.  370,  holding  city  liable  for  col- 
lecting large  body  of  water  by  street  improvement  and  throwing  it  in  artificial 
body  on  private  property;  Carson  v.  Springfield,  53  Mo.  App.  295,  holding  city 
liable  for  overflow  from  gutters  of  water  diverted  thereto  by  its  highway  improve- 
ments, during  ordinary  rains;  Payne  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  112  Mo. 
18,  17  L.  R.  A.  631,  20  S.  W.  322,  holding  dam  to  protect  land  authorized  by  leg- 
islature, built  in  old  river  bed,  leaving  sufficient  channel  for  ordinary  high 
stages,  lawful  public  improvement;  Paddock  v.  Somes,  102  Mo.  238,  10  L.  R.  A. 
258.  14  S.  W.  746,  holding  individual  liable  for  throwing  surface  or  drainage 
waters  on  neighbor's  lands,  by  artificial  channel;  Brandenberg  v.  Zeigler,  62  S. 
C.  23,  55  L.  R.  A.  417,  89  Am.  St.  Rep.  887,  39  S.  E.  790,  holding  owner 
of  pond  of  surface  water  cannot  drain  it  upon  neighbor's  land  to  his  injury 
by  cutting  through  natural  rim  to  basin;  Norfolk  &  W.  R.  Co.  v.  Carter,  91  Va. 
593.  22  S.  E.  517.  holding  railroad  liable  for  obstructing  natural  channel  of 
surface  water;  Central  R.  Co.  v.  Windham,  126  Ala.  560,  28  So.  392,  holding  rail- 
road liable  for  injury  from  diversion  of  surface  rain  water  from  natural  chan- 
nel, by  improvements;  Hume  v.  Des  Moines,  146  Iowa,  639,  29  L.R.A.(X.S.)  134, 
125  X.  W.  846,  Ann.  Cas.  1912  B,  904,  holding  city  liable  for  negligently  obstruct- 
ing drains,  in  grading  street;  Ready  v.  Missouri  P.  R.  Co.  98  Mo.  App.  469,  72 


4  L.K.A.  594]  L.  R.  A.  CASES  AS  AUTHORITIES.  732: 

S.  W.  142,  holding  defendant  company  liable  for  damages  where  the  putting  in 
of  a  culvert  caused  surface  water  to  flood  plaintiff's  land  which  before  never 
reached  her  land;  Chicago.  R.  I.  &  P.  R.  Co.  v.  Groves,  20  Okla.  114,  22  L.R.A. 
(X.S.)  808,  93  Pac.  755,  holding  defendant  company  was  liable  for  the  flooding 
of  plaintiff's  land  caused  by  the  building  of  an  embankment  across  a  well  defined 
channel  through  which  surface  water  was  discharged;  Chicago,  R.  I.  &  P.  R.  Co. 
v.  Johnson,  25  Okla.  765,  27  L.R.A.(N.S.)  881,  107  Pac.  662,  holding  defendant 
liable  where  by  means  of  artificial  channels  it  collects  surface  water  and  leads 
it  so  that  it  overflows  land  of  plaintiff;  Lewis  v.  Springfield,  142  Mo.  App.  88, 
125  S.  W.  824,  on  city  as  having  no  right  to  collect  surface  water  and  cast  it  on 
private  property;  Adams  v.  Oklahoma  City,  20  Okla.  531,  95  Pac.  975,  on  liability 
of  city  where  surface  water  is  cast  onto  land  of  private  owners. 

Cited  in  notes  (21  L.  R.  A.  597)  on  rights  as  to  flow  of  surface  water;  (7 
L.  R.  A.  465)  on  damages  recoverable  for  negligent  construction  of  sewer;  (53: 
L.  R.  A.  635)  on  extent  of  trespasser's  liability  for  consequential  injuries  result- 
ing from  the  trespass;  (30  Am.  St.  Rep.  394,  395)  on  liability  of  cities  for  inter- 
ference with  surface  waters  by  grading  streets;  (85  Am.  St.  Rep.  731)  on  right 
of  landowner  to  accelerate  or  diminish  flow  of  water  to  or  from  lands  of  another. 

Distinguished  in  115  Mo.  666,  22  S.  W.  908,  holding  on  second  appeal  city 
not  liable  for  continued  discharge  of  water  from  highway,  through  another's 
act,  where  it  abates  such  nuisance  two  months  after  notice;  Mclnery  v.  St. 
Joseph,  45  Mo.  App.  298,  holding  city  liable  for  overflow  of  surface  water 
on  abutting  property  by  its  obstructing  gutter;  Byrne  v.  Keokuk  &  W.  R.  Co. 
47  Mo.  App.  388,  holding  railway  liable  for  diverting  surface  waters  by  mere 
failure  to  construct  ditches  and  drains,  under  Mo.  Rev.  Stat.  1889,  §  2614; 
Gulath  v.  St.  Louis,  179  Mo.  54,  77  S.  W.  744,  holding  a  city  not  liable  where 
because  of  a  rainstorm,  such  as  had  never  occurred  before  lands  were  flooded 
from  a  sewer,  properly  constructed  and  having  a  sufficient  capacity  under  ordi- 
nary conditions;  Jackson  v.  Wabash  R.  Co.  154  Mo.  App.  478,  135  S.  W.  977, 
holding  railroad  liable  for  damages  to  abutters  from  flooding  of  their  land  by 
surface  water  caused  by  construction  of  switch  in  street. 

4  L.  R.  A.  601,  GARLITZ  v.  STATE,  71  Md.  293,  18  Atl.  39. 
Competency  of  juror   for   impartiality. 

Cited  in  Gillespie  v.  State,  92  Md.  172,  48  Atl.  32:  United  States  v.  Barber, 
21  D.  C.  459;  United  States  v.  Schneider,  21  D.  C.  397, — holding  juror  with- 
in rule  of  impartiality  although  having  opinion  based  on  rumor  and  newspaper 
accounts,  if  able  to  render  impartial  verdict;  Horton  v.  United  States,  15 
App.  D.  C.  319,  holding  qualification  of  jurors  question  for  sound  discretion 
of  court;  State  v.  Morrison,  67  Kan.  161,. 72  Pac.  554,  holding  competent,  juror 
not  having  opinion  as  to  justihcation  accused  had  for  killing,  where  prisoner 
pleads  self-defense;  Guy  v.  State,  96  Md.  695,  54  Atl.  879,  holding  membership  in 
law  and  order  league  not  disqualification  for  juror  in  excise  violation  case. 

Cited  in  notes   (35  L.R.A.(X.S.)    1000)    on  opinion  gained  from  newspaper  as 
disqualifying  juror  in  criminal  case;    (40  L.  ed.  U.  S.  238)   on  disqualification  of 
jurors  by  reason  of  previously  formed  opinions. 
Admisaibility  of  evidence  of  conduct  and  appearance  of  accused. 

Cited  in  Handy  v.  State,  101  Md.  45,  109  Am.  St.  Rep.  558,  60  Atl.  452,  holding 
where  insanity  is  not  set  up  as  a  defense  and  there  was  evidence  of  premedita- 
tion, evidence  as  to  defendant's  feelings  and  condition  of  mind  on  the  day  of  the 
homicide  is  inadmissible. 

ArR-nment   of   counsel. 

Cited  in  Vickers  v.  United  States,  1  Okla.  Crim.  Rep.  466,  98  Pac.  467,  holding 


733  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  609 

a  new  trial  will  be  properly  granted  where  the  prosecuting  attorney  in  address- 
ing the  jury  goes  out  side  record  and  appeals  to  the  passions  and  prejudices  of 
jury;  Cox  v.  Territory,  2  Okla.  Crim.  Rep.  680.  304  Pac.  378,  holding  that  state- 
ment of  county  attorney  that  if  evidence  did  not  bring  about  a  conviction,  he 
would  quit  prosecuting  horse  thieves. 
Meat  of  |i:isxiiiii  reducing  degree  of  homicide. 

Cited  in  notes  (5  L.R.A.(X.S.)  817)  on  heat  of  passion  which  will  mitigate  or 
reduce  degree  of  homicide;  (38  L.R.A.(X.S.)  100)  on  degree  of  homicide  in  killing 
wife,  as  affected  by  her  confession  of,  or  declaration  of  intent  to  commit, 
adultery;  (92  Am.  St.  Rep.  220)  on  killing  of  adulteress. 

4  L.  R.  A.  606,  SEIBERT  v.  TODD,  31  S.  C.  206,  9  S.  E.  822. 
Dower    right. 

Cited  in  footnote  to  Hart  v.  Burcli,  6  L.  R.  A.  371,  which  holds  ineffectual, 
release  of  dower  to  one  having  no  title. 

Cited  in  notes   (8  L.  R.  A.  443)   on  protection  of  wife's  right  of  dower;    (13 
L.  R.  A.  442)   on  bar  of  inchoate  right  of  dower. 
Procedure  in   foreclosure. 

Cited  in  Bird  v.  Kendall,  62  S.  C.  186,  40  S.  E.  142,  holding  fact  that  claim 
under  mortgage  is  set  up  by  codefendant,  instead  of  in  separate  proceeding  to 
enforce  same,  immaterial  as  regards  rights  of  parties. 

4  L.  R.  A.  609,  BAER'S  APPEAL,  127  Pa.  360,  18  Atl.  1. 
Effect   of   deposit   on   certificate. 

Cited  in  Eshleman  v.  Bolenius,  144  Pa.  272,  28  W.  N.  C.  574,  22  Atl.  758, 
holding  administrator  liable  upon  bank's  insolvency  for  deposit  by  attorney 
upon  certificate  payable  in  one  year,  with  interest;  State  Bank's  Case,  13  Pa. 
Co.  Ct.  438,  3  Pa.  Dist.  R.  7,  holding  interest-bearing  time  deposit  a  loan  to 
bank. 

Cited  in  note  (6  L.  R.  A.  36)  on  proof  of  prior  or  contemporaneous  agreement 
to  contradict  or  vary  contract. 

Distinguished  in  Law's  Estate,  144  Pa.  507,  28  W.  N.  C.  491,  14  L.  R.  A.  106, 
22  Atl.  831,  Reversing  27  W.  X.  C.  346,  9  Pa.  Co.  Ct.  227,  47  Phila.  Leg.  Int. 
504,  holding  money  placed  in  bank  by  trustee  pending  investment,  at  small  inter- 
est and  requiring  two  weeks'  notice  for  withdrawal,  not  loan  at  risk  of  trustee 
in  due  care. 
Duties  and  liabilities  of  trustee. 

Cited  in  Carr's  Estate,  8  Del.  Co.  Rep.  561,  holding  executor  individually  re- 
sponsible for  trust  funds  loaned  on  personal  security;  Breneman  v.  Mylin,  12  Pa. 
Co.  Ct.  325,  2  Pa.  Dist.  R.  297,  10  Lane.  L.  Rev.  10,  holding  trustees  exercis- 
ing due  care  not  liable  for  loss  due  to  failure  of  bank  of  deposit;  Re  Schlcgel, 
34  Pittsb.  L.  J.  X*.  S.  410,  holding  it  question  for  court  whether  corporation 
stock  may  be  transferred  by  administrator  to  guardian  in  distribution. 

Cited  in  notes  (7  L.R.A. (X.S.)  619)  on  liability  of  executor  or  administrator 
for  loss  of  bank  deposit;  (98  Am.  St.  Rep.  374)  on  deposit  of  trust  fund  in  bank 
by  executors  or  administrators. 

Distinguished  in  Re  Seanians,  2  Lack.  Legal  News,  272,  holding  executor  con- 
tinuing deposit  made  by  testator,  not  liable  for  loss  caused  by  failure  of  bank. 
Parol  evidence  to  vary  written  agreement. 

Cited  in  Re  Lippincott,  31  Pittsb.  L.  J.  N.  S.  374,  holding  contemporary  parol 
agreement  incompetent  to  vary  terms  of  church  subscription  in  absonce  of 
fraud  or  mistake ;  Bartholomay  Brewery  Co.  v.  Thomeier,  38  W.  N.  C.  544,  2 


4  L.R.A.  C09]  L.  R.  A.  CASES  AS  AUTHORITIES.  734 

Pa.  Super.  Ct.  354,  holding  testimony  of  surety  as  to  contemporary  parol  agree- 
ment  insufficient   to   limit   liability  on   bond. 
Deposit  of  funds  amounting;  to  a  loan. 

Cited  in  Corcoran  v.  Kostrometinoff,  21  L.R.A.  (X.S.)  402,  91  C.  C.  A.  619,  164 
Fed.  687,  holding  the  deposit  by  a  guardian  of  her  wards  funds  in  a  bank  for  a 
fixed  period  of  time  upon  a  certificate  of  deposit,  amounts  to  a  loan  without 
security;  Com.  ex  rel.  Atty.  Gen  v.  State  Bank,  32  Pa.  Co.  Ct.  54,  on  deposits 
by  trustees  in  the  nature  of  a  loan. 

Cited  in  note  (33  Am.  St.  Rep.  227)  on  deposit  as  loan. 

4  L.  R.   A.   611,   GILLIS   v.   WESTERN   U.  TELEG.   CO.   61    Vt.   461,    15   Am. 

St.  Rep.   917,   17  Atl.   736. 
Limitation  of  liability  of  transmitter  or  carrier. 

Cited  in  Wertz  v.  Western  U.  Teleg.  Co.  7  Utah,  449,  13  L.  R.  A.  512,  27  Pac. 
172,  and  Reed  v.  Western  U.  Teleg.  Co.  135  Mo.  673,  34  L.  R.  A.  497,  58  Am. 
St.  Rep.  609,  37  S.  W.  904,  holding  limitation  of  liability  of  telegraph  com- 
pany for  errors  and  mistakes  in  transmitting  unrepeated  messages,  not  valid 
as  to  operators'  negligence;  Thompson  v.  Western  U.  Teleg.  Co.  107  N.  C.  458, 
12  S.  E.  427,  holding  stipulation  as  to  unrepeated  telegrams,  no  protection 
against  delay  in  transmission  amounting  to  gross  negligence;  Brown  v.  Postal 
Teleg.  Co.  Ill  N.  C.  192,  17  L.  R.  A.  650,  32  Am.  St.  Rep.  793,  16  S.  E.  179, 
holding  restriction  of  liability  for  negligence  void  as  to  mistakes  as  well  as  to 
delays  in  transmission  of  telegrams;  Davis  v.  Central  Vermont  R.  Co.  66 
Vt.  294,  44  Am.  St.  Rep.  852,  29  Atl.  313,  holding  carrier  not  liable  for  loss 
by  fire  without  its  negligence  under  bill  of  lading  exempting  from  such  liability 
except  for  negligence;  Ranchau  v.  Rutland  R.  Co.  71  Vt.  147,  76  Am.  St.  Rep. 
761,  43  Atl.  11,  holding  passenger  unable  to  read  or  write  not  bound  by  restric- 
tion upon  liability  for  lost  baggage  printed  upon  railroad  ticket,  where  not 
informed;  Hill  v.  Western  U.  Teleg.  Co.  85  Ga.  429,  21  Am.  St.  Rep.  166,  11  S.  E. 
874,  holding  sender  of  telegram  assents  to  stipulation  limiting  liability  by  sign- 
ing blank  containing  it;  Strong  v.  Western  U.  Teleg.  Co.  18  Idaho,  403,  30 
L.R.A.(N.S.)  417,  109  Pac.  910,  Ann.  Cas.  1912  A,  55,  holding  that  stipulation 
exempting  telegraph  company  from  damages  for  its  own  negligence  is  void; 
Sprigg  v.  Rutland  R.  Co.  77  Vt.  354.  60  Atl.  143,  on  limitations  against  liability 
for  loss,  when  against  public  policy;  Joshua  L.  Bailey  &  Co.  v.  Western  U.  Teleg. 
Co.  227  Pa.  529,  76  Atl.  736,  on  disability  to  stipulate  for  exemption  from  lia- 
bility for  negligence. 

Cited  in  footnotes  to  Western  U.  Teleg.  Co.  v.  Stevenson,  5  L.  R.  A.  515,  which 
holds  stipulation  limiting  liability  to  repeated  message  valid ;  Brown  v.  Postal 
Teleg.  Cable  Co.  17  L.  R.  A.  648,  which  holds  limitation  of  amount  of  liability 
for  mistake  in  transmitting  telegram  void  as  to  mistake  caused  by  negligence; 
Birkett  v.  Western  U.  Teleg.  Co.  33  L.  R.  A.  404,  which  holds  valid,  condition 
against  liability  beyond  amount  paid  for  sending  unrepeated  message;  Coit  v. 
Western  U.  Teleg.  Co.  53  L.  R.  A.  678,  which  holds  one  requesting  another  to 
furnish  information  by  telegram  bound  by  latter's  agreement  relieving  company 
from  liability  for  unrepeated  messages. 

Cited  in  notes  (13  L.R.A.  511)  on  effect  of  stipulations  in  contract  to  trans- 
mit telegram;  (11  L.R.A. (N.S.)  563)  on  validity  of  limitation  of  liability  for 
unrepeated  telegrams. 

Distinguished  in  Sherrill  v.  Western  U.  Teleg.  Co.  109  N.  C.  531,  14  S.  E.  94, 
holding  limitation  of  liability  for  damages  to  claims  presented  within  sixty  days 
after  sending,  valid;  Kirby  v.  Western  U.  Teleg.  Co.  7  S.  D.  629,  30  L.  R.  A. 


735  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  621 

623,  65  N.  W.  37,  holding  limitation  of  liability  for  damages  or  penalties  to  claim 
presented  within  sixty  days  after  filing  telegram  for  transmission,  valid. 
Liability   for  negligence   in   transmitting;   telegram. 

Cited  in  Cowan  v.  Western  U.  Teleg.  Co.  122  Iowa,  384,  64  L.  R.  A.  550,  98 
N.  \V.  281,  holding  telegraph  company  liable  in  tort  for  negligent  transmission, 
of  telegram;  Shaw  v.  Postal  Teleg.  &  Cable  Co.  79  Miss.  696,  56  L.  R.  A.  493r 
footnote  p.  486,  89  Am.  St.  Rep.  666,  31  So.  222  (dissenting  opinion)  denying 
power  to  enforce,  in  other  state,  liability  for  mistakes  in  transmitting  cipher 
telegram  without  payment  of  additional  fee,  required  to  insure  against  mistakes; 
Western  U.  Teleg.  Co.  v.  Adams,  6  L.  R.  A.  844.  which  holds  that  ignorance- 
of  relations  between  parties  to  message  does  not  excuse  neglect  in  delivering; 
Wi-stern  U.  Teleg.  Co.  v.  Short,  9  L.  R.  A.  744,  which  holds  company  prima 
facie  liable  for  failure  to  deliver  telegram. 

4  L.  R.  A.  616,  MONTGOMERY  GASLIGUT  CO.  v.  MONTGOMERY,  87  Ala. 

245,  6  So.  113. 
Sale   at    price    to   be   appraised. 

Cited  in  Mobile  v.  Wood,  95  Fed.  538,  holding  want  of  consent  to  submission 
and  failure  to  concur  in  appointment  of  arbitrators,  fatal  to  award. 

Cited  in  notes  (8  L.  R.  A.  488)  on  manufacture  and  distribution  of  gas  as  a 
public  franchise;  (9  L.  R.  A.  37)  on  monopolies. 

Distinguished  in  Farmington  v.  Farmington  Water  Co.  93  Me.  200,  44  Atl. 
609,  holding  village  need  not  bind  itself  to  purchase  waterworks  at  appraisal 
value  before  obtaining  under  contract,  providing  that  it  "shall  have  the  right  to 
buy"  and  company  "agree  to  sell"  at  such  price;  Livermore  v.  Millville,  71  N.  J. 
L.  510,  59  Atl.  217,  holding  a  water  company  by  appointing  commissioners  to 
arrange  terms  of  selling  plant  to  city  acceded  to  city's  view  of  the  construction 
of  the  statute,  that  the  city  need  only  acquire  it  provided  the  purchase  price  be 
agreeable  to  the  city. 
Injunction  against  legislation. 

Cited  in  footnote  to  State  ex  rel.  Rose  v.  Superior  Court,  48  L.  'R.  A.  819", 
which  denies  right  to  injunction  against  passage  of  ordinance  creating  con- 
tract. 

Cited  in  note   (13  L.  R.  A.  845)    on  injunction  to  prevent  passage  of  munici- 
pal   ordinance. 
r 

Distinguished  in  Poppleton  v.  Moores,  62  Neb.  855,  88  N.  W.  128,  holding  in- 
junction  lies   to   restrain   city's   continuance   in   forbidden   contractual   relations 
affecting  interests  of  citizens. 
Specific  performance  of  contract  vrith  municipality. 

Cited  in  Castle  Creek  Water  Co.  v.  Aspen,  76  C.  C.  A.  516,  146  Fed.  11,  8  A. 
&  E.  Ann.  Cas.  660,  holding  waterworks  company  might  have  a  specific  perform- 
ance of  a  contract  with  city  to  purchase  the  plant  at  a  price  determined  by 
appraisers;  Slocum  v.  North  Platte,  112  C.  C.  A.  510,  192  Fed.  263,  enforcing 
contract  by  city  to  purchase  waterworks. 

4  L.  R.  A.  621,  STATE  v.  CARTER,  98  Mo.  431,  11  S.  W.  979. 
Effect   of   escape   of  prisoner  npon   right   of   appeal. 

Cited  in  State  v.  Logan,  125  Mo.  26,  28  S.  W.  176,  upholding  refusal  of  trial 
judge  to  sign  bill  of  exceptions  after  escape  of  defendant. 

Cited  in  note  (26  L.R.A.(N.S.  922)  on  effect  of  escape  on  appeal  from  con- 
viction. 


4  L.R.A.  622]  L.  R.  A.  CASES  AS  AUTHORITIES.  736 

4  L.  R.  A.  622,  IRON  MOUNTAIN  R.  CO.  v.  B1NGHAM,  87  Tenn.  522,   11   S. 

W.   705. 
Land  bounded  by  street  or  river. 

Cited  in  Reeves  v.  Allen,  101  Tenn.  414,  47  S.  \V.  495.  holding  deed  to  side 
of  street  does  not  convey  title  to  the  middle;  State  v.  Taylor,  107  Tenn.  403, 
64  S.  W.  706,  holding  municipality  receives  only  an  easement  in  street  dedi- 
cated for  public  use;  Hanlon  v.  Hobson,  24  Colo.  289,  42  L.  R.  A.  513,  51  Pac. 
433,  holding  title  to  land  bounded  by  non-navigable  river  extends  to  middle. 

Cited  in  footnote  to  Crocker  v.  Cotting,  33  L.  R.  A.  245,  which  holds  no  part 
of  passageway  included  in  grant  of  land  "bounded  by"  such  passageway. 

Cited  in  notes    (7   L.R.A.   548)    on  ownership  of   fee  in   streets;    (11  Am.   St. 
Rep.  682)   on  abutting  lot-owners. 
Power   to   license   use   of  streets. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Mississippi  &  T.  R.  Co.  92  Tenn.  692,  22 
S.  W.  920,  allowing  foreign  company  benefit  of  railroad  company's  contract  with 
city  to  permit  other  companies  to  use  its  tracks  in  street;  Citizens'  Street  R. 
Co.  v.  Africa,  100  Tenn.  43,  42  S.  W.  485,  holding  validity  of  franchise  to 
street  railways  dependent  upon  provisions  of  charter;  Knoxville  v.  Africa, 
43  C.  C.  A.  258,  47  U.  S.  App.  74,  77  Fed.  507,  upholding  legislative  power  to 
delegate  to  municipality  power  to  grant  right  of  way  in  streets;  Pepper  v.  Union 
R.  Co.  113  Tenn.  58,  85  S.  W.  864,  on  legislature  as  having  authority  to  authorize 
the  building  of  a  railroad,  streets  or  alleys  of  cities  or  towns. 

Cited  in  footnote  to  Theobold  v.  Louisville,  N.  O.  &  T.  R.  Co.  4  L.  R.  A.  735, 
which  holds  steam  railroad  cannot  be  operated  in  street  without  condemna- 
tion or  consent  of  abutting  owner. 

Cited  in  notes   (12  L.  R.  A.  115)   on  authorizing  obstructions  in  highway;    (48 
L.  R.  A.  492)   on  power  of  legislature  to  impose  burdens  on  municipalities  and 
to  control  their  local  administration  and  property. 
Consequential    damages. 

Cited  in  Brumit  v.  Virginia  &  S.  W.  R.  Co.  100  Tenn.  135,  60  S.  W.  505,  holding 
abutting  owner  with  easement  in  street  must  show  special  injury  through  use  of 
street  by  another  under  license;  High  Bridge  Lumber  Co.  v.  United  States,  16  C. 
C.  A.  464,  37  U.  S.  App.  234,  69  Fed.  324,  holding,  without  statutory  authority, 
consequential  damages  from  skilfully  constructed  works  not  recoverable;  Gar- 
rett  v.  Lake  Roland  Elev.  R.  Co.  79  Md.  287,  24  L.  R.  A.  399,  29  Atl.  830,  dis- 
cussing bill  to  enjoin  building  of  railroad  abutment  in  street,  holding  Mary- 
land acts  provide  ample  remedies  for  consequential  damages;  Salliotte  v.  King 
Bridge  Co.  58  C.  C.  A.  470,  122  Fed.  382,  denying  right  of  riparian  owner  to 
recover  damages  for  washing  away  of  banks  caused  by  increase  of  current 
due  to  building  of  bridge. 

Cited  in  footnote  to  .People  ex  rel.  Kunze  v.  Ft.  Wayne  &  E.  R.  Co.  16  L.  R. 
A.  752,  which  holds  street  railway  not  additional  servitude. 

Cited  in  note  (17  L.  R.  A.  477)  on  what  use  of  street  or  highway  consti- 
tutes additional  burden. 

Distinguished  in  East  End  Street  R.  Co.  v.  Doyle,  88  Tenn.  747,  9  L.  R.  A. 
102,  17  Am.  St.  Rep.  933,   13  S.  W.  936,  holding  construction  of  railroad  upon 
highway  constitutes  additional  compensatory  burden  upon  fee. 
Itiuln*    of    abutting-    owner. 

Cited  in  Hamilton  County  v.  Rape,  101  Tenn.  225,  47  S.  W.  416,  holding  right 
of  abutting  owner  to  ingress  and  egress  cannot  be  taken  without  compensation; 
Brumit  v.  Virginia  &  S.  W.  R.  C'o.  106  Tenn.  139,  60  S.  W.  505,  holding  damages 
recoverable  for  impairing  abutting  owner's  right  of  ingress  and  egress;  Frazier 


737  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  632 

v.  East  Tennessee  Teleph.  Co.  115  Tenn.  421,  3  L.R.A.  (X.S.)  325,  112  Am.  St. 
Rep.  856.  90  S.  W.  G20,  5  A.  &  E.  Ann.  Cas.  838,  holding  telephone  wires  and 
poles  erected  in  street  were  not  such  an  additional  burden  as  to  entitle  abutting 
owners  to  compensation;  Acker  v.  Knoxville,  ]17  Tenn.  228,  96  S.  W.  973, 
holding  plaintiffs  who  owned  to  the  center  of  a  street  could  not  recover  against 
a  city  because  it  permitted  a  railroad  company  to  build  its  line  on  the  side  of 
street  beyond  plaintiff's  property  line;  Coyne  v.  Memphis,  118  Tenn.  661,  102 
S.  W.  355,  holding  a  city  changing  the  grade  of  a  street  is  liable  for  the  im- 
pairment of  the  easement  to  and  from  an  abutting  lot;  Louisville  &  N.  Terminal 
Co.  v.  Lellyett,  114  Tenn.  402,  1  L.R.A.(N.S.)  91,  85  S.  W.  881,  holding  prop- 
erty owner  might  recover  damages  for  injury  to  her  property  by  the  erection  in 
the  rear  proximity  of  round  houses,  coal  sheds  and  necessary  tracks;  Gossett  v. 
Southern  R.  Co.  115  Tenn.  390,  1  L.R.A. (X.S.)  110,  112  Am.  St.  Rep.  S46,  89 
S.  W.  737,  holding  an  adjoining  property  owner  was  entitled  to  recover  damages 
sustained  by  the  noise  and  discomfort  resulting  from  blasting  operations;  Salli- 
otte  v.  King  Bridge  Co.  65  L.R.A.  636,  58  C.  C.  A.  466,  122  Fed.  382,  on  abutter 
as  not  entitled  to  damages  for  a  change  in  grade  of  street  where  property  not 
appropriated  thereby. 

Cited  in  footnote  to  Lostutter  v.  Aurora,  12  L.  R.  A.  259,  which  authorizes 
city  to  fit  up  abandoned  well  in  street  without  abutting  owner's  consent. 

Cited  in  notes    (11  L.R.A.  750)    on  right  of  commissioners  to  close  highway; 
(36  L.R.A.(X.S.)    697,  753,  755,  769,  783,  800)   on  abutter's  right  to  compensa- 
tion  for  railroads   in   streets. 
Abuse  of  privileges  by  grantee  or  licensee. 

Cited  in  Anderson  v.  Miller,  96  Tenn.  49,  31  L.  R.  A.  607,  54  Am.  St.  Rep. 
812,  33  S.  W.  615,  holding  subtenant's  rights  in  premises  cannot  exceed  his  les- 
sor's; Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Hood,  36  C.  C.  A.  426,  94  Fed.  621,  hold- 
ing use  of  public  street  by  railway  must  be  strictly  within  provisions  of  grant; 
Missouri,  K.  &  T.  R.  Co.  v.  Hopson,  15  Tex.  Civ.  App.  133,  39  S.  W.  384,  holding 
release  of  damages  from  construction  of  railway  in  street  does  not  include  dam- 
ages for  unnecessary  construction. 
Right  of  property  ovrner  to  enjoin  use  of  streets. 

Cited  in  Wilkins  v.  Chicago,  St.  L.  &  N.  0.  R.  Co.  110  Tenn.  464,  75  S.  W.  1026, 
holding  property  owners  who  own  no  property  on  a  street  about  to  be  closed 
under  a  contract  with  a  railroad  company  cannot  enjoin  the  performance  of  such 
contract. 

4  L.  R.  A.  628,  Re  BIRDSOXG,  39  Fed.  599. 
Cruel    find    unusual    punishments. 

Cited  in  footnotes  to  Hobbs  v.  State,  18  L.  R.  A.  774,  which  holds  imprison- 
ment from  two  to  ten  years  and  fine  not  exceeding  $2,000  for  white-cap  conspir- 
acy not  cruel  and  unusual;  Com.  v.  Murphy,  30  L.  R.  A.  734,  which  sustains  stat- 
ute imposing  imprisonment  for  life  for  criminal  intimacy  with  girl  under 
sixteen. 

Cited  in  note   (35  .u.  R.  A.  566)   on  cruel  and  unusual  punishments. 

4  L.  R.  A.  632,  DE  KAY  v.  CHICAGO,  M.  &  ST.  P.  R.  CO.  41  Minn.  178,  16  Am. 

St.  Rep.  687,  43  X.  W.  182. 
Liability    for    injury    to    passengers    at    intermediate    stations. 

Cited  in  Schilling  v.  Winona  &  St.  P.  R.  Co.  66  Minn.  256,  68  N.  W.   1083. 

holding   carrier   not   bound   to    furnish   safe   ingress    and   egress   at    intermediate 

station  for  passenger  on  freight  train;  Hermeling  v.  Chicago,  St.  P.  M.  &  0.  R. 

Co.  105  Minn.  138,  117  X.  \V.  341,  holding  that  a  passenger  on  a  special  train, 

L.R.A.  Au.  Vol.  I.— 47. 


4  L.R.A.  632]  L.  R.  A.  CASES  AS  AUTHORIliES.  738' 

which  was  side-tracked,  who  left  the  train  and  went  upon  the  platform  of  the 
depot,  was  then  no  passenger  so  that  the  company  owed  him  the  duty  of 
lighting  its  platform. 

Cited  in  footnote  to  Chesapeake  &  O.  R.  Co.  v.  King,  49  L.  R.  A.  102,  which 
sustains  alighting  passenger's  right  to  presume  against  dangerous  operation  of 
trains. 

Cited  in  notes  (8  L.  R.  A.  674)  on  carrier's  duty  to  use  care  for  safety  of  pas- 
sengers; (11  L.  R.  A.  367)  on  duty  of  carrier  to  assist  in  landing  passengers 
safely;  (15  L.  R.  A.  399)  on  rights  and  liabilities  of  parties  when  passenger  tem- 
porarily leaves  vehicle  before  completion  of  journey. 

Criticised  in  Alabama  G.  S.  R.  Co.  v.  Coggins,  32  C.  C.  A.  1,  60  U.  S.  App. 
140,  88  Fed.  459,  holding  company  allowing  passenger  to  alight  at  intermediate- 
station  for  reasonable  and  useful  purposes  must  use  due  care  for  his  safety. 
Passengers    alighting    from    train    at    nnnsnal    place. 

Cited  in  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Myers,  25  C.  C.  A.  486,  49  U.  S. 
App.  279,  80  Fed.  364,  holding  carrier  not  liable  where  passenger  of  mature  age 
is  hurt,  unnecessarily  exposing  himself  to  danger;  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Sattler,  64  Neb.  639,  57  L.  R.  A.  892,  97  Am.  St.  Rep.  666,  90  N.  W.  649,  holding 
one  who  leaves  train  at  point  not  intended  for  discharge  of  passengers  assumes 
all  ordinary  risks;  Layne  v.  Chesapeake  &  O.  R.  Co.  66  W.  Va.  626,  67  S.  E.  1103,. 
holding  that  passenger  does  not  cease  to  be  such  by  alighting  at  intermediate 
station  to  engage  in  altercation  with  railroad  employee. 

Distinguished  in  Tubbs  v.  Michigan  C.  R.  Co.  107  Mich.  115,  61  Am.  St.  Rep. 
320,  64  N.  W.   1061,  holding  on  invitation  to  board  train   standing  at   station 
passenger  has  right  to  assume  way  is  clear. 
Contributory    negligence   on   railroad   track. 

Cited  in  Hermeling  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  105  Minn.  136,  117  X.  W. 
341,  holding  that  the  fact  that  the  conductor  called  "all  aboard"  does  not  ex- 
cuse the  contributory  negligence  of  the  deceased  in  stepping  in  front  of  the 
approaching  train. 

Cited  in  note  (27  L.R.A.  (N.S.)  129)  on  duty  of  passenger  to  stop,  look,  and' 
listen  before  crossing  track  adjacent  to  his  train. 

4  L.  R.  A.  637,  JACKSON  v.  ROWELL,  87  Ala.  685,  6  So.  95. 
Undue    Influence. 

Cited  in  Adair  v.  Craig,  135  Ala.  335,  33  So.  902,  holding  undue  influence  to 
be  such  as  dominates  and  coerces  grantor's  will;   Frick  v.  Kabaker,   116  Iowa,, 
510,  90  N.  W.  498,  holding  that  undue  influence,  if  relied  on  to  invalidate  bill 
of  sale,   must  be   pleaded. 
Rights  assertable    l>>    heirs. 

Cited  in  Watson  v.  Barber,  105  La.  460,  29  So.  949,  holding  heirs  cannot  as- 
sert right  decedent  was  estopped  from  asserting. 
Value    of    homestead. 

Cited  in  Dolan  v.  Dolan,  91  Ala.  156,  8  So.  491,  holding  denial  of  Ijomestead 
right  for  excess  of  value  precludes  objection  to  selection  of  land  in  lieu  thereoi 
because  less  in  value. 

4  L.  R.  A.  641,  ERCK  v.  CHURCH,  87  Tenn.  575,  11  S.  W.  794. 
Adverse  possession. 

Cited  in  Rembert  v.  Edmondson,  99  Tenn.  18,  63  Am.  St.  Rep.  819,  41  S.  W. 
935,  holding  parol  sale  and  delivery  of  premises  held  adversely  sufficient  privity 
for  continuous  possession;  McLemore  v.  Durivage,  92  Tenn.  493,  22  S.  W.  207,. 


739  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  648 

holding  successive  connected  possessions  of  land,  with  privity  of  estate  amount- 
ing to  requisite  statutory  period,  constitute  adverse  possession;  Nichols  v.  New 
England  Furniture  Co.  100  Mich.  252,  59  N.  W.  155,  holding  possession  not  ad- 
verse where  conveyances  of  predecessors  of  claimant  do  not  purport  to  convey 
premises  occupied;  Rowland  v.  Williams,  23  Or.  521,  32  Pac.  402,  holding  oc- 
cupance  of  pre-emption  claim  and  making  permanent  improvements  with  intent 
to  claim  it,  adverse  possession;  Illinois  Steel  Co.  v.  Budzisz,  106  Wis.  514,  48 
L.  R.  A.  836,  80  Am.  St.  Rep.  54,  81  N.  W.  1027,  holding  privity  between  suc- 
cessive occupants  to  constitute  adverse  possession  need  not  be  written  convey- 
ance; Treece  T.  American  Asso.  58  C.  C.  A.  269,  122  Fed.  601,  holding  statute 
not  started  by  unintentional  possession  of  another's  land;  Sheldon  v.  Michigan 
C.  R.  Co.  361  Mich.  511,  126  N.  W.  1056,  holding  that  successive  disseisins  can- 
not be  tacked  so  as  to  constitute  continuous  possession  of  land  not  included  in 
deeds,  where  grantees  rely  on  deed  to  show  privity  of  estate;  Kittel  v.  Steger, 
a21  Tenn.  411,  117  S.  W.  500,  holding  party  claiming  under  a  deed  conveying 
by  definite  boundaries  might  by  entering  and  inclosing  part  of  such  land  and 
claiming  adverse!}*  acquire  title  by  adverse  possession  to  such  boundaries;. 
Rennert  v.  Shirk,  163  Ind.  551,  72  N.  E.  546,  on  the  acquirement  of  title  to  land 
by  adverse  possession. 

Cited  in  footnotes  to  Heard  v.  Phillips,  44  L.  R.  A.  369,  which  holds  void,  con- 
veyance by  administrator  of  land  held  by  third  person  under  bond  for  title  by 
intestate;  Balkham  v.  Woodstock  Iron  Co.  11  L.  R.  A.  230,  which  holds  posses- 
sion of  life  tenant  after  purchasing  remainder  at  administrator's  sale,  adverse; 
Sontag  v.  Bigelow,  16  L.  R.  A.  326,  which  holds  cotenant's  receipt  of  rents  and 
payment  of  taxes  insufficient  claim  of  adverse  possession;  Hook  v.  Joyce,  21 
L.  R.  A.  96,  which  holds  title  to  easement  of  burial  lot  acquirable  by  prescrip- 
tion; Swan  v.  Munch,  35  L.  R.  A.  743,  which  holds  title  by  prescription  obtain- 
able by  wrongful  entry  under  claim  of  right;  Illinois  Steel  Co.  v.  Budzisz,  48 
L.  R.  A.  830,  which  holds  parol  transfer  of  right  of  adverse  holder  sufficient  to 
authorize  transferee  to  tack  two  possessions. 

Cited  in  notes  (33  L.R.A.  (N.S.)  930)  on  adverse  possession  due  to  ignorance 
or  mistake  as  to  boundary;  (35  L.R.A. (N.S.)  500)  on  adverse  possession:  parol 
transfer  of  possession  as  basis  of  tacking. 

4  L.  R.  A.  648,  NELSON  v.  HAYWOOD  COUNTY,  87  Tenn.  781,  11  S.  W.  885. 

Report  of  later  appeal  in  Nelson  v.  Hay  wood  County,  91  Tenn.  598,  20  S.  W.  1. 
Estoppel.  . 

Cited  in  Miller  v.  American  Mut.  Acci.  Ins.  Co.  92  Tenn.  181,  20  L.  R.  A.  772, 
21  S.  W.  39,  holding  insurance  company  estopped  as  against  good-faith  policy 
holder,  to  deny  proper  acceptance  of  amendment  of  charter  by  majority  of  stock- 
holders, where  officers  assume  to  exercise  power  conferred  thereby. 

Cited  in  footnotes  to  Huron  v.  Second  Ward  Sav.  Bank,  49  L.  R.  A.  534,  which 
holds  city  estopped  by  recitals  in  bonds  as  to  purpose  of  issuance;  Independent 
School  Dist.  v.  Rew,  55  L.  R.  A.  364,  which  holds  municipal  corporation  estopped 
to  deny  truth  of  recitals  in  bonds  held  by  innocent  purchaser. 

Cited   in   note    (7   Eng.   Rul.   Cas.   371)    on  estoppel   of  municipality   to   deny 
validity  of  railroad  aid  bonds. 
Effect    of   adoption    of    Constitution. 

Cited  in  State  v.  Planters'  F.  &  M.  Ins.  Co.  95  Tenn.  208,  31  S.  W.  992,  hold- 
ing offer  of  exemption  from  taxation  by  charter,  withdrawn  by  Constitution, 
where  charter  not  accepted  until  after  adoption  thereof;  Fidelity  Trust  & 
Safety-Vault  Co.  v.  Lawrence  County,  34  C.  C.  A.  558,  92  Fed.  580,  holding  statute 
conferring  right  upon  county  to  subscribe  for  railroad  stock  on  majority  vote 


4  L.R.A.  U4SJ  L.  R.  A.  CASES  AS  AUTHORITIES.  740 

repealed,  and  not  amended,  by  provision  of  Constitution  requiring  three-fourths 

vote. 

Consolidation  of  corporations. 

Cited  in  notes    (52  L.R.A.  383)    on   right   of  corporation  to  consolidate;    (89 
Am.  St.  Rep.  629,  631)   on  effect  of  consolidation  of  corporations. 
Usury. 

Cited  in  note  (62  L.  R.  A.  54)  on  conflict  of  laws  as  to  interest  and  usury. 
Bonds   in  aid  of  railroad. 

Cited  in  Colburn  v.  McDonald,  72  Xeb.  436,  100  X.  W.  961,  holding  a  propo- 
sition to  vote  bonds  to  aid  in  the  construction  of  a  railroad  is  not  rendered  void 
because  it  authorizes  county  to  accept  capital  stock  of  company. 
Stock  subscription  as  of  what   date. 

Distinguished  in  Red  River  Furnace  Co.  v.  Tennessee  C.  R.  Co.  113  Tenn. 
717,  87  S.  \\.  1016,  holding  a  subscription  by  city  to  stock  of  a  railroad  company 
\vas  not  completed  until  the  date  the  mayor  actually  made  the  subscription  and 
not  from  the  date  authorized. 

4  L.  R.  A.  660,  PEPPER  v.  WESTERN  U.  TELEG.  CO.  87  Tenn.  554,  10  Am. 

St.  Rep.  699,  11  S.  W.  783. 
Contracts    by    tele&raph. 

Cited  in  Postal  Teleg.  Cable  Co.  v.  Schaefer,  110  Ky.  915,  62  S.  W.  1119,  hold- 
ing seller  not  bound  to  deliver  potatoes  at  erroneous  price  transmitted  by  negli- 
gence of  telegraph  company;  Strong  v.  Western  U.  Teleg.  Co.  18  Idaho,  413,  30 
L.R.A.(X.S.)  420,  109  Pac.  910,  Ann.  Cas.  1912  A,  55,  holding  that  sender  of 
telegram  does  not  make  telegraph  company  his  agent  and  is  not  bound  to  sendee 
by  negligently  altered  telegram. 

Cited  in  note  (110  Am.  St.  Rep.  745,  748,  753)   on  contracts  by  telegraph. 

Disapproved  in  Flynn  v.  Kelly,  12  Ont.  L.  Rep.  444,  holding  defendant  send- 
ing an  order  for  goods  at  plaintiff's  expense  was  not  bound  to  accept  the  goods 
where  the  telegraph  company  made  a  mistake  in  the  transmission  of  the  message. 
Limitation  of  liability. 

Cited  in  Louisville  &  X.  R.  Co.  v.  Wynn,  88  Tenn.  326,  14  S.  W.  311,  holding 
liability  for  negligence  not  avoidable  by  contract;  Joshua  L.  Bailey  &  Co.  v. 
Western  U.  Teleg.  Co.  227  Pa.  520,  76  Atl.  736,  on  disability  to  stipulate  against 
liability  for  negligence. 

Cited  in  footnotes  to  Brown  v.  Postal  Teleg.  Cable  Co.  17  L.  R.  A.  648,  which 
Hiolds  limitation  of  amount  of  liability  for  mistake  in  transmitting  telegram  void 
as  to  mistake  caused  by  negligence;  Birkett  v.  Western  U.  Teleg.  Co.  33  L.  R.  A. 
404.  which  holds  valid,  condition  against  liability  beyond  amount  paid  for  send- 
ing unrepeated  message;  Shaw  v.  Postal  Teleg.  Cable  Co.  56  L.  R.  A.  486,  which 
upholds  provision  against  liability  for  mistakes  in  transmitting  cipher  telegram 
without  payment  of  additional  fee  to  insure  accuracy;  Coit  v.  Western  U.  Teleg. 
Co.  53  L.  R.  A.  078,  which  holds  one  asking  for  information  by  telegram  bound 
by  agreement  of  one  furnishing  it  that  telegraph  company  shall  not  be  liable  for 
mistakes  in  unrepeated  messages. 

Cited  in  note    (11   L.R.A. (X.S.)    563)    on  validity  of  limitation  of  liability  for 
"jnrepeated  telegrams. 
Damages   for    IK-H  I  iii.-n  i    transmission   of  telegrams. 

Cited  in  Fererro  v.  Western  U.  Teleg.  Co.  9  App.  D.  C.  471,  35  L.  R.  A.  552, 
holding  message  "fifty-five  cents,  usual  terms,  quick  acceptance"  sufficiently  indic- 
ative of  business  transaction  to  support  recovery  for  actual  damages  resulting 
from  negligent  alteration  in  transmission;  Bierhaus  v.  Western  U.  Teleg.  Co.  8 


74]  L.  R.  A.  (ASKS  AS  AUTHORITIES.  [4  L.R.A.  660 

Ind.  App.  252,  34  N.  E.  581,  holding  actual  damages  recoverable  for  failure  to 
promptly  deliver,  "Have  you  claim  against  P.  L.  Davis?  Answer  how  much," 
whereby  benefit  of  attachment  lost;  Western  U.  Teleg.  Co.  v.  Crawford,  110  Ala. 
467,  20  So.  Ill,  holding  actual  damages  recoverable  by  sender  for  negligent  al- 
teration of  message  "Best  offer — is  seven  and  eighth"  to  "seven  and  eighty;" 
Postal  Teleg.  Cable  Co.  v.  Lathrop,  131  111.  585,  7  L.  R.  A.  477,  19  Am.  St.  Rep.*55, 
23  X.  E.  583,  holding  "Please  buy  in  addition  to  thousand  August,  one  thousand 
cheapest  month,"  intelligible  commercial  message  entitling  sender  to  actual  dam- 
ages resulting  from  negligent  mistake  in  transmission;  Western  U.  Teleg.  Co.  v. 
Church,  3  Xeb.  (Unof.)  33,  57  L.R.A.  909,  90  X.  W.  878,  holding  substantial  dam- 
ages recoverable  by  sender  for  delay  in  sending  message  addressed  to  doctor  and 
calling  his  attendance  "at  once;"  Shaw  v.  Postal  Teleg.  &  Cable  Co.  79  Miss.  696. 
56  L.R.A.  493,  89  Am.  St.  Rep.  666,  31  So.  222  (dissenting  opinion),  for  proposi- 
tion that  telegraph  company  is  liable  to  sender  for  actual  damage  resulting  from 
negligent  change  of  "chapter"  to  "'chatter"  in  cipher  message;  Western  U.  Teleg. 
Co.  v.  Church,  3  Xeb.  (Unof.)  33,  57  L.R.A.  905,  90  X.  W.  878,  holding  where  the 
delivery  of  a  telegram  was  negligently  delayed  the  sender  might  recover  dam- 
ages for  the  additional  pain  and  suffering  in  mind  and  body  caused  by  the 
failure  of  physician  to  receive  the  telegram  in  proper  time;  Hocutt  v.  Western 
U.  Teleg.  Co.  147  X.  C.  193,  60  S.  E.  980,  holding  the  sender  of  a  telegram  could 
recover  only  nominal  damages  for  a  failure  to  send  a  telegram  where  the  act 
of  the  sender  contributed  to  the  result;  Bowie  v.  Western  U.  Teleg.  Co.  78  S.  C. 
429,  59  S.  E.  65,  holding  that  sendee  of  a  message  wrongly  quoting  the  price  of 
flour  offered  for  sale,  might  where  he  purchased  at  such  supposed  price  and  had 
to  pay  the  difference  recover  from  the  telegraph  company  the  difference  between 
the  market  value  and  that  stated  in  the  message ;  Western  U.  Teleg.  Co.  v.  Potts. 
120  Tenn.  44,  19  L.R.A.  (N.S.)  481,  127  Am.  St.  Rep.  991,  113  S.  W.  789,  on  how 
telegraph  company  may  learn  the  grounds  on  which  to  base  an  estimate  of  dam- 
ages in  case  of  failure  to  deliver. 

Cited  in  footnotes  to  McPeek  v.  Western  U.  Teleg.  Co.  43  L.  R.  A.  214,  which 
holds  loss  of  reward  offered  for  capture  of  criminal,  within  damages  recoverable 
for  failure  to  deliver  telegram;  Fererro  v.  Western  U.  Teleg.  Co.  35  L.  R.  A.  548, 
which  limits  damage  for  mistake  in  telegram  as  to  price  in  offer  to  sell  goods,  to 
difference  in  price;  Western  U.  Teleg.  Co.  v.  Xorth  Packing  &  Provision  Co.  52 
L.  R.  A.  275,  which  holds  agent  purchasing  live  stock  because  of  delay  in  deliv- 
ering telegram,  not  required  to  resell  before  communicating  with  principal,  to 
reduce  damages;  Western  U.  Teleg.  Co.  v.  Xye  &  S.  Grain  Co.  63  L.R.A.  803, 
which  holds  difference  in  value  between  market  value  of  corn  and  the  price  at 
which  it  could  have  been  sold  the  measure  of  damages  for  negligent  delay  of  tele- 
gram; Hays  v.  Western  U.  Teleg.  Co.  67  L.R.A.  481,  which  holds  that  change  in 
telegram  so  as  to  quote  price  of  mules  at  ten  dollars  per  head  less  than  market 
price  resulting  in  sendee's  ordering  purchase  of  designated  number,  renders  tele- 
graph company  liable  for  difference  between  price  paid  and  that  stated  in  tele- 
gram. 

Cited  in  notes  in    (10  Am.  St.  Rep.  782,  788;   117  Am.  St.  Rep.  290,  291)    on 
elements  of  damages  recoverable  for  failure  to  transmit  and  deliver  telegrams: 
(14  Am.  St.  Rep.  564:   48  Am.  St.  Rep.  612)    on  rights,  duties,  and  liabilities 
of  telegraph  companies. 
Sendee's   rig-fat   to   maintain   notion   asrainst   telegraph    company. 

Cited  in  Shingleur  v.  Western  U.  Teleg.  Co.  72  Miss.  1034,  30  L.  R.  A.  445,  48 
Am.  St.  Rep.  604.  18  So.  425,  holding  telegraph  company  independent  principal 
liable  only  in  action  ex  delict  o  by  sendee,  though  liable  also  ex  contract  it  to 
sender;  Postal  Teleg.  Cable  Co.  v.  Ford,  117  Ala.  674,  23  So.  684,  holding  benefit 


4  L.R.A.  660]  L.  R.  A.  CASES  AS  AUTHORITIES.  742 

to  sendee  not  sufficient  to  establish  privity  essential  to  action  by  sendee  ex  con- 
tractu  against  telegraph  company  for  failure  to  deliver;  Barker  v.  Western  U. 
Teleg.  Co.  134  Wis.  153,  14  L.R.A.  (N.S.)  536,  126  Am.  St.  Rep.  1017,  114  X.  W. 
439,  holding  damages  might  be  recovered  by  a  physician  for  a  failure  to  deliver 
a  message  to  him  containing  an  inquiry  as  to  whether  he  would  see  other  pro- 
fessionally; Wolf  Co.  v.  Western  U.  Teleg.  Co.  24  Pa.  Super.  Ct.  135,  holding  the 
sendee  of  a  telegram  purchasing  machinery  at  prices  quoted  in  a  telegram  which 
by  mistake  of  operator  were  too  low  might  recover  damages  from  the  telegraph 
•company;  Eureka  Cotton  Mills  v.  Western  U.  Teleg.  Co.  88  S.  C.  513,  70  S.  E. 
1040,  Ann.  Cas.  1912  C,  1273  (dissenting  opinion),  on  cause  of  action  of  sender 
for  error  in  transmission  of  telegram. 

4  L.  R.  A.  664,  CRISMAN  v.  DORSEY,  12  Colo.  567,  21  Pac.  920, 
Sufficiency    of   attachment. 

Cited  in  Gottlieb  v.  Barton,  13  Colo.  App.  152,  57  Pac.  754,  holding  attachment 
imperative  where  goods  were  not  separated  from  others  nor  taken  possession  of 
otherwise  than  by  appointment  of  proprietor  of  shop  in  which  all  goods  stored, 
custodian  thereof;  Throop  v.  Maiden,  52  Kan.  263,  34  Pac.  801,  holding  attach- 
ment void  as  against  subsequent  recorded  mortgage  where  corn  crop  covered 
thereby  not  taken  possession  of  personally  nor  by  agent,  nor  notices  posted,  though 
owner  notified  of  levy. 

Cited  in  footnote  to  Battle  Creek  Valley  Bank  v.  First  Nat.  Bank,  56  L.  R.  A. 
124,  which  holds  physical  seizure  or  dispossession  essential  to  levy  of  execution 
on  chattels. 

Distinguished  in  Hendrie  &  B.  Mfg.  Co.  v.  Collins,  13  Colo.  App.  12,  56  Pac.  815, 
questioning  whether  it'  is  necessary  to  take  possession  of  property  in  hands  of 
third  person  under  garnishment  statute. 

4  L.  R.  A.  670,  JOHNSON  v.  McMULLIN,  3  Wyo.  237,  21  Pac.  701. 
Damages  for  breach  of  contract. 

Cited  in  Madden  v.  Caldwell,  16  Idaho,  69,  21  L.R.A.(N.S.)  337,  100  Pac. 
358,  holding  the  measure  of  damages  recoverable  by  a  vendee  who  is  ousted 
from  possession  by  a  subsequent  grantee  who  was  first  to  record  deed  are  the 
actual  damages  sustained  by  reason  of  the  breach  of  the  covenant  to  warrant  and 
defend  the  title  and  peaceful  possession  in  vendee;  Roberts  v.  Braffett,  33  Utah, 
91,  92  Pac.  789  (dissenting  opinion),  on  measure  of  damages  recoverable  by 
vendee  for  breach  of  contract  of  sale. 

Cited  in  footnote  to  Arentsen  v.  Moreland,  65  L.R.A.  973.  which  holds  that 
knowledge  by  one  contracting  to  purchase  land  that  the  vendor  hrs  only  an  op- 
tion contract  to  purchase  and  has  contracted  to  sell  the  saw  timber  to  a  third 
person  will  not  deprive  him  of  his  right  to  damages,  where  vendor  refuses  to  con- 
vey more  than  the  land  free  from  the  timber. 

Cited  in  notes   (11  L.R.A.  681)   on  damages  for  breach  of  contract;    (16  L.R.A. 
(N.S.)    769;   106  Am.  St.  Rep.  976)    on  measure  of  vendee's  damages  on  breach 
•of  contract  to  convey  realty. 
Time  as  of  essence  of  contract. 

Cited  in  note  (104  Am.  St.  Rep.  267)  on  time  as  of  essence  of  contract  for  sale 
of  land. 

4  L.  R.  A.  673,  GOODSELL  v.  TAYLOR,  41  Minn.  207,  16  Am.  St.  Rep.  700,  42 

N.  W.  873. 

Liability   of   owner   of   elevator. 
Cited  in  Kentucky  Hotel  Co.  v.  Camp,  97  Ky.  431,  30  S.  W.  1010,  holding  owner 


743  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  673 

liable  for  injuries  to  small  boy  through  operation  of  car  by  inexperienced  youth; 
Springer  v.  Ford,  189  111.  434,  52  L.  R.  A.  931,  82  Am.  St.  Rep.  464,  59  N.  E.  953, 
holding  lessor  liable  to  employee  of  tenant  injured  by  fall  of  freight  elevator  op- 
erated by  owner  due  to  defective  machinery;  Mitchell  v.  Marker,  25  L.  R.  A.  36, 
10  C.  C.  A.  306,  22  U.  S.  App.  325,  62  Fed.  144,  Affirming  54  Fed.  638,  holding 
passenger  elevators  within  rule  governing  other  carriers  of  passengers  requiring 
Jiighest  degree  of  care;  Southern  Bldg.  &  L.  Asso.  v.  Lawson,  97  Tenn.  371,  56 
Am.  St.  Rep.  804,  37  S.  W.  86,  upholding  instruction  that  owner  of  office  building 
must  use  toward  persons  rightfully  in  building  "the  highest  degree  of  care  and 
<?aution;"  McGrell  v.  Buffalo  Office  Bldg.  Co.  90  Hun,  34,  35  N.  Y.  Supp.  599, 
holding  negligence  for  jury  where  no  door  to  car,  and  elevator  attained  speed  of 
8  feet  per  second  immediately  upon  starting  with  unwarned  and  unattended  in- 
fant as  only  passenger;  Riland  v.  Hirshler,  7  Pa.  Super.  Ct.  386,  holding  negli- 
gence for  jury  where  plaintiff  injured  by  reason  of  having  stepped  into  shaft 
tli rough  open  door,  under  descending  elevator,  where  latter  apparent  and  warning 
given;  Obermeyer  v.  Logeman  X^hair  Mfg.  Co.  229  Mo.  105,  129  S.  W.  209, 
.affirming  120  Mo.  App.  69,  96  S.  W.  673,  holding  that  question  as  to  whether 
elevator  was  negligently  constructed  was  for  jury. 

Cited  in  footnote  to  Dwindle  v.  New  York  C.  &  |H.  R.  R.  Co.  8  L.  R.  A.  224, 
which  holds  railroad  company  liable  for  acts  of  porter  of  sleeping  or  drawing- 
-room car. 

-Cited  in  notes  (25  L.  R.  A.  33)  on  liability  for  injuries  to  elevator  passenger; 
(8  L.R.A.  674)  on  contributory  negligence  of  passenger;  (56  Am.  St.  Rep.  807, 
808)  on  liability  of  owners  of  elevators  used  for  passengers  or  employees. 

Distinguished  in  McDonough  v.  Lanpher,  55  Minn.  501,  43  Am.  St.  Rep.  541,  57 
N.  W.  152,  holding  liability  not  similar  where  passenger  is  employee. 
•Owner  of  passenger  elevator  as  a  common  carrier  of  passengers. 

Cited  in  Ohio  Valley  Trust  Co.  v.  Wernke,  42  Ind.  App.  334,  84  N.  E.  999;  Bel- 
vedere Bldg.  Co.  v.  Bryan,  103  Md.  537,  64  Atl.  44;  Quimby  v.  Bee  Bldg.  Co. 
:87  Neb.  196,  138  Am.  St.  Rep.  477,  127  N.  W.  118;  Edwards  v.  Burke,  36  Wash. 
112,  78  Pac.  610,  holding  that  the  character  of  one  operating  a  passenger  elevatoi 
in  a  building,  is  that  of  a  common  carrier  of  passengers,  with  the  same  duties 
and  liabilities. 

Disapproved  in  Burgess  v.   Stowe,   134  Mich.  210,  96  N.  W.  29;   Edwards  v. 
Manufacturers  Bldg.  Co.  27  R.  I.  249,  2  L.R.A.  (N.S.)    746,  114  Am.  St.  Rep.  37, 
•61  Atl.  646,  8  A.  &  E.  Ann.  Gas.  974, — holding  that  a  landlord  who  maintains  and 
operates  a  passenger  elevator  is  not  a  common  carrier  of  passengers. 
Presumptive     negligence. 

Cited  in  Springer  v.  Ford,  189  111.  435,  52  L.  R.  A.  931,  82  Am.  St.  Re. p.  464, 
59  N.  E.  953,  and  Ellis  v.  Waldron,  19  R.  I.  371,  33  Atl.  869,  holding  mere  fact  of 
fall  of  elevator,  not  obviously  defective,  raises  presumption  of  negligence  against 
owner  in  regard  to  its  condition  at  time  of  lease;  Gibson  v.  International  Trust 
Co.  177  Mass.  103,  52  L.  R.  A.  929,  58  N.  E.  278,  holding  presumption  of  negli- 
gence arising  from  injury  as  result  of  sudden  start  of  elevator  while  passenger 
entering,  rebutted  by  proof  that  proximate  cause  was  act  of  one  not  employed  by 
owner  or  engaged  in  operation  of  car. 

Cited   in  note    (113   Am.   St.   Rep.   1030)    on   presumption   of  negligence   from 
happening  of  accident  causing  personal  injuries. 
Expert    testimony. 

Cited  in  Bruce  v.  Beall,  99  Tenn.  316,  41  S.  W.  445,  holding  question  whether 


4  L.R.A.  673]  L.  E.  A.  CASES  AS  AUTHORITIES.  744 

"prudent"  person  would  use  elevator  after  breaking  of  certain,  and  crystallization 
of  all,  strands  in  elevator  rope,  solely  for  jury. 

Cited  in  note  (41  L.  R.  A.  153)  on  admissibility  of  opinions  as  evidence. 

4  L.  R.  A.  674,  HILL  v.  MUXDAY,  89  Ky.  36,  11  S.  W.  95G. 
Property   rig'hts   in   ice. 

Cited  in  footnotes  to  Marsh  v.  McXider.  20  L.  R.  A.  333.  which  authorizes  sale 
by  tenant  of  right  to  cut  ice  on  running  stream ;  Mansfield  v.  Place,  18  L.  R.  A. 
39,  which  holds  prescriptive  right  to  entire  ice  on  pond  acquired  by  cutting  from 
any  points  desired. 
What    are    fixtures. 

Cited  in  footnotes  to  Leonard  v.  Clough,  16  L.R.A.  306,  which  holds  barn 
placed  by  owner  on  his  own  land  on  stones  resting  on  the  surface  a  fixture; 
Murray  v.  Bender,  63  L.R.A.  783,  which  holds  chairs,  stage  fixtures,  and  drop 
curtains  annexed  to  theater  to  make  possible  the  use  of  the  building,  fixtures. 

Cited  in  notes  (5  L.  R.  A.  594,  6  L.  R.  A.  249,  10  L.  R.  A.  723),  on  what  are 
fixtures;  (9  L.R.A.  700)  on  tenant's  right  to  remove  fixtures;  (69  L.R.A.  894) 
on  things  placed  on  land  with  intention  of  annexing  but  never  actually  attached, 
as  fixtures. 

4  L.  R.  A.  675,  BEARD  v.  STATE,  71  Md.  275,  17  Am.  St.  Rep.  536,  17  Atl.  1044, 
Judgment  overruling  motion  in  arrest  of  judgment  affirmed  in  74  Md.  131.  21 
Atl.  700. 
Instructions    in    criminal    cases. 

Cited  in  Ridgely  v.  State,  75  Md.  512,  23  Atl.  1099.  holding  failure  of  court  orr 
trial  for  libel  to  instruct  jury  that  no  evidence  to  support  the  charge  had  been 
introduced,  not  ground  for  reversal :  State  v.  Jules,  85  Md.  313,  36  Atl.  1027,  hold- 
ing court  cannot  bind  jury  by  instructions  defining  crime  or  declaring  sufficiency 
or  insufficiency  of  evidence;  Guy  v.  State,  96  Md.  699,  54  Atl.  879,  holding  that 
where  jury  is  judge  of  law  and  fact,  court  may,  upon  request,  instruct  as  to  the 
law,  for  assistance  of  jury;  Esterline  v.  State,  105  Md.  636,  66  Atl.  269,  holding 
instructions  of  court  in  criminal  case  are  subject  to  review  on  appeal  when 
erroneous;  Dick  v.  State,  107  Md.  17,  68  Atl.  286,  holding  court  in  criminal 
cause  might  properly  refuse  to  charge  that  jury  were  not  to  pay  any  attention, 
to  the  remarks  of  the  court;  Garland  v.  State,  112  Md.  99,  75  Atl.  631,  holding 
in  a  criminal  case  the  court  cannot  be  required  to  instruct  the  jury. 

Cited  in  footnote  to  State  v.  Main,  36  L.  R.  A.  623,  which  holds  jury  in  crim- 
inal case  must  take  decision  of  court  as  to  constitutionality  of  statute  on  which 
prosecution  based. 
Evidence   as    to    keeping    of   disorderly    house. 

Cited  in  Shaffer  v.  State.  87  Md.  127,  39  Atl.  313,  holding  general  reputation 
of  frequenters  competent;  State  v.  McGahan,  48  W.  Va.  441,  37  S.  E.  573,  holding 
evidence  of  consort  of  men  and  women,  nothing  improper  in  their  conduct  being 
shown,  insufficient  to  establish  bad  reputation;  State  v.  Ireton,  89  Minn.  342, 
94  X.  W.  1078,  holding  fact  that  public  has  not  been  openly  disturbed  no  de- 
fense to  charge  of  keeping  disorderly  house  under  Minnesota  statute;  State  v, 
Cambron,  20  S.  D.  287,  305  X.  W.  241,  holding  testimony  as  to  the  manner  of 
business  connected  with  the  house,  who  went  there,  what  they  did  there 
was  admissible  as  showing  the  character  of  the  place. 

Cited  in  note  (20  L.  R.  A.  612)  on  evidence  in  cases  of  disorderly  houses  and 
houses  of  ill  fame. 

Distinguished  in  State  v.  Hull,  18  R.  I.  209,  20  L.  R.  A.  615,  20  Atl.  191,  holding 
general  reputation  of  party  charged  with  keeping  disorderly  house  inadmissible. 


745  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  G80 

What    is   a   disorderly   house. 

Cited  in  Com.  v.  Goodall,  1G5  Mass.  591,  43  N.  E.  520,  holding  resort  to  house 
for  immoral  purposes  sufficient  to  render  house  "disorderly." 
Suppression    of    disorderly    house. 

Cited  in  note  (4  L.  R.  A.  751)  on  suppression  of  house  of  ill  fame. 
Evidence  of  specific  Instances   to   prove  character. 

Cited  in  note   (14  L.R.A.  (N.S.)   694)   on  evidence  of  specific  instances  to  prove 
character. 
Dancing:  as   nuisance. 

Cited  in  note   (18  L.R.A.(N.S.)    700)   on  dancing  as  nuisance. 

4  L.  R.  A.  680,  ANDERSON  v.  BELLINGER,  87  Ala.  334,  13  Am.  St.  Rep.  46,  6 
So.  82. 

Followed  without  discussion  in  Lessley  v.  Cooper,  151  Ala.  662,  43  So.  1020. 
'Sureties;    measure    of    liability. 

Cited  in  May  v.  Alabama  Nat.  Bank,  111  Ala.  513,  20  So.  459,  holding  liability 
•of  surety  to  be  strictly  construed  according  to  letter  of  undertaking;  Manatee 
County  State  Bank  v.  Weatherly,  144  Ala.  658,  39  So.  988,  holding  no  liability 
or  guaranty  of  payment  for  oranges  containing  a  condition  that  bill  of  lading  be 
accompanied  by  certificate  as  to  soundness  according  to  contract  whore  the 
certificate  failed  to  affirm  that  they  were  shipped  according  to  such  contract; 
W.  J.  Lemp  Brewing  Co.  v.  Secor,  21  Okla.  544,  96  Pac.  636,  on  contract  of  surety- 
ship to  be  construed  strictly  in  favor  of  surety. 

Cited  in  notes  (8  L.  R.  A.  735)  on  suretyship;  (9  L.  R.  A.  353)  on  liability  of 
surety  as  guarantor;  (11  L.  R.  A.  852)  on  sureties  on  bond  by  assignee  for 
•creditors;  (29  L.R.A. (X.S.)  751,  752)  on  defects  or  irregularities  as  defense  to 
action  on  replevin  bond  which  has  served  its  purpose;  (63  Am.  St.  Rep.  327,  338) 
on  discharge  of  surety  or  guarantor  by  matters  existing  at  or  before  execution 
•of  contract. 
Effect  of  altering  instruments On  liability  of  sureties. 

Cited  in  Crescent  Brewing  Co.  v.  Handley.  90  Ala.  488,  7  So.  912;  Vann  v. 
Lunsford,  91  Ala.  579,  8  So.  719;  Rudulph  v.  Brewer,  96  Ala.  193,  11  So.  314,— 
holding  surety  discharged  by  material  alteration  in  terms  of  contract,  even 
though  beneficial;  White  Sewing  Mach.  Co.  v.  Saxon,  121  Ala.  409,  25  So.  784, 
holding  signature  of  attesting  witness  to  unattested  bond,  after  execution,  is  ma- 
terial alteration,  relieving  surety;  JEtna  Indemnity  Co.  v.  Waters,  110  Md.  698, 
73  Atl.  712,  holding  an  alteration  of  a  thirteen  thousand  dollar  contract  which 
made  a  difference  of  thirty  dollars  was  so  material  as  to  discharge  a  surety 
thereon. 

Cited   in  note    (86   Am.   St.   Rep.   87)    on  unauthorized   alteration   of  written 
instruments. 
On    liability    of    principal. 

Cited  in  Montgomery  v.  Crossthwait.  90  Ala.  571,  12  L.  R.  A.  143,  24  Am.  St. 
Eep.  832,  8  So.  498;  Lesser  v.  Scholze.  <13  Ala.  339.  9  So.  273:  Winter  &  Loeb  v. 
Pool.  100  Ala.  504,  14  So.  411,  same  case  on  second  appeal.  104  Ala.  582,  16  So. 
543 — holding  unauthorized  material  alteration  of  note  fatal  to  recovery,  unless 
made  by  stranger;  Brown  v.  Johnson  Bros.  127  Ala.  294.  51  L.  R.  A.  404,  85  Am. 
St.  Rep.  134,  28  So.  579,  holding  signature  of  another  person  to  note,  after  de- 
livery, without  knowledge  or  consent  of  original  maker,  discharges  latter;  Green 
v.  Sneed,  101  Ala.  207,  46  Am.  St.  Rep.  119,  13  So.  277,  holding  filling  of  blank  in 
note  with  amount  larger  than  that  authorized  by  maker,  vitiates  instrument,  al- 
though made  without  fraudulent  intent. 


4  L.R.A.  680]  •  L.  R.  A.  CASES  AS  AUTHORITIES.  746' 

On    instrument    as    evidence. 

Distinguished  in  Alabama  State  Land  Co.  v.  Thompson,  104  Ala.  573,  53  Am.  St. 
Rep.  80,  16  So.  440,  holding  unauthorized  material  alteration  in  deed  by  grantee, 
after  execution,  does  not  destroy  instrument  as  evidence  of  title. 
Sunday    laws. 

Cited  in  footnotes  to  Sullivan  v.  Maine  C.  R.  Co.  8  L.  R.  A.  427,  which  holds- 
riding  for  exercise  on  Sunday  not  violation  of  statute;  First  M.  E.  Church  v. 
Donnell,  46  L.  R.  A.  858,  which  sustains  subscription  to  church  indebtedness  made 
on  Sunday;  Porter  v.  Pierce,  7  L.  R.  A.  847,  which  excludes  Sunday  in  determin- 
ing time  to  redeem;  Rodman  v.  Robinson,  65  L.R.A.  682,  which  sustains  Sunday 
contract  for  purchase  and  sale  of  real  estate. 

Cited  in  note   (7  L.  R.  A.  498)   on  contracts  made  on  Sunday. 

4  L.  R.  A.  682,  COBBS  v.  HIXSON,  75  Mich.  260,  42  N.  W.  818. 
Invalid    contracts. 

Cited  in  footnotes  to  Brooks  v.  Cooper,  21  L.  R.  A.  617,  which  holds  void,  con- 
tract between  newspapers  for  alternate  selection  and  division  of  profits  of  public 
printing;  Livingston  v.  Page,  59  L.  R.  A.  336,  which  holds  void,  contract  by  pub- 
lisher of  newspaper  to  use  it  in  influencing  choice  of  delegates,  anJ  action  of 
convention. 

Cited  in  notes  (6  L.R.A.  458)  on  relief  in  case  of  fraudulent  contract;  (6 
L.R.A.  615,  8  L.R.A.  501)  on  invalidity  of  contracts  against  public  policy; 
(6  Eng.  Rul.  Cas.  346,  347)  on  invalidity  of  agreement  affecting  selection  of 
officers. 

4  L.  R.  A.  685,  BROWNELL  v.  GREENWICH,  114  N.  Y.  518,  22  N.  E.  24. 

Followed,   without  discussion,   in   Smith  v.   Greenwich,   145   N.  Y.  650,   40  N.. 
E.  254. 
Construction  of  words  "due"  and  "duly." 

Cited  in  Slattery  v.  Doyle,  180  Mass.  29,  61  N.  E.  264,  holding  "due  notice"  of 
appointment  of  administrator  not  given,  unless  requirements  of  statute  complied 
with;  Waklee  v.  Davis,  50  Fed.  523,  holding  allegation  that  judgment  was  "duly 
entered"  is  sufficient  statement  of  jurisdictional  facts;  People  ex  rel.  Batchelor 
v.  Bacon,  37  App.  Div.  417,  55  N.  Y.  Supp.  1045,  holding  allegation  that  judgment 
"was  recovered"  not  equivalent  to  statement  that  it  was  "duly  rendered;"  Baxter 
v.  Lancaster,  58  App.  Div.  382,  68  N.  Y.  Supp.  1092.  holding  allegation  in  action 
on  appeal  bond  that  specific  sum  was  "duly  awarded  as  costs  and  disbursements" 
on  appeal  entitles  plaintiff  to  prove  that  such  matter  was  made  subject  of  judg- 
ment below;  Clemens  v.  American  F.  Ins.  Co.  70  App.  Div.  437,  75  1ST.  Y.  Supp. 
484,  holding  insufficient  allegation  of  having  rendered  proofs  of  loss  under  fire  in- 
surance policy  not  equivalent  to  allegation  that  conditions  of  contract  had  been 
duly  performed;  Citizens'  State  Bank  v.  Morse,  60  Kan.  529,  57  Pac.  115,  holding 
condition  in  bond  to  "duly  prosecute"  replevin  suit  does  not  require  obligor  to 
prosecute  successfully;  People  ex  rel.  Hovey  v.  Bainbridge,  26  Misc.  223.  56  N.  Y. 
Supp.  04,  holding  statute  requiring  petition  for  submission  of  proposition  to  town 
meeting  shall  be  "duly  filed"  with  officer  named,  means  filed  according  to  said 
statute;  People  ex  rel.  Harris  v.  Land  Office  Comrs.  90  Hun,  530,  36  N.  Y.  Supp. 
29,  holding  statement  in  petition  that  application  was  "duly"  made  according  to 
specified  statute,  sufficient  averment  of  proper  presentation  of  application  toj 
comptroller  for  cancelation  of  tax  sales;  Rogers  v.  Trumble,  80  Neb.  319,  .125  N. 
W.  600,  holding  the  finding  that  the  demand  was  "duly"  made  for  a  mortgage 
does  not  refer  to  the  form  alone  but  to  the  substance  as  well;  Reynolds  v.  Harlem 
Constr.  Co.  71  Misc.  448,  128  N.  Y.  Supp.  642;  Sherl  v.  Kurzman,  CO  Mi«c.  332> 
313  N.  Y,  Supp.  288, — holding  if  an  execution  was  "duly  issued"  it  was  issued! 


747  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  685 

according  to  law  as  well  as  in  matters  of  form;  Hollis  v.  Brooklyn  Heights  R. 
Co.  128  App.  Div.  824,  113  X.  Y.  Supp.  4;  Sherman  v.  Ecker,  59  Misc.  218,  lift 
X.  Y.  Supp.  265;  Levy  v.  Cohen,  103  App.  Div.  198,  92  X.  Y.  Supp.  1074, — 
on  "duly"  as  meaning  according  to  law;  Benedict  v.  Clarke,  139  App.  Div.  243, 
123  N.  Y.  Supp.  964,  holding  tha't  allegation  that  judgment  was  "duly  rendered" 
is  sufficient  as  against  general  demurrer. 
Municipal  bonds;  validity  of  judgment  of  county  judge. 

Cited  in  Hoag  v.  Greenwich,  133  N.  Y.  157,  30  X.  E.  842,  holding  judgment  au- 
thorizing bonding  of  town  clothed  with  legal  presumptions  attending  ordinary 
judgments.. 

Cited  in  footnotes  to  Rathbone  v.  Hopper,  34  L.  R.  A.  674,  which  authorizes 
issuance  of  negotiable  bonds  by  township;  Dell  Rapids  v.  Irving,  29  L.  R.  A.  861, 
which  holds  townships  organized  under  state  laws  not  a  "municipal  corporation." 
Strict  compliance  with  power  to  issue  bonds  or  make  contracts. 

Cited  in  People's  Bank  v.  School  Dist.  Xo.  52,  3  X.  D.  499,  28  L.  R.  A.  644,  57 
X.  W.  787.  holding  under  statute  authorizing  issue  of  municipal  bonds  payable  in 
not  less  than  ten  years,  bonds  payable  eleven  days  less  than  ten  years  are  void; 
Bell  v.  Kirkland,  102  Minn.  224,  13  L.R,A.(X.S.)  798,  120  Am.  St.  Rep.  62], 
113  N.  W.  271,  holding  where  a  municipal  corporation  let  a  contract  for  the 
construction  of  a  sewer  without  satisfying  statutory  requirements  and  without 
obtaining  consent  of  property  owners  through  whose  land  it  passed,  the  bondsmen 
of  contractor  in  a  suit  for  materials  could  not  set  up  ultra  vires. 

Distinguished  in  Citizens'  Sav.  Bank  v.  Greenburgh,  60  App.  Div.  230,  70  X.  Y. 
Supp.  68,  holding  sale  of  highway  bonds  to  broker  partly  for  cash  and  partly  for 
credit,  contrary  to  authority  of  commissioners,  not  merely  irregularity. 
Acts  of  commissioners  bindingr  on  town. 

Cited  in  Williamsburgh  Sav.  Bank  v.  Solon,  136  X.  Y.  479,  30  X.  E.  1058,  hold- 
ing town  bound  by  representations  of  commissioners  that  bonds  in  aid  of  railroad 
were  issued  in  pursuance  of  authority  conferred. 
When   bonds   deemed   "issued." 

Cited  in  Sechrist  v.  Rialto  Irrig.  Dist.  129  Cal.  645,  62  Pac.  261,  holding  bonds 
of  irrigation  district  are  not  "issued"  until  delivered  for  valuable  consideration ; 
Moller  v.  Galveston,  23  Tex.  Civ.  App.  700,  57  S.  W.  1116,  holding  statute  requir- 
ing proposition  to  be  submitted  to  popular  vote  before  "issuance"  of  bonds,  not 
applicable  to  bonds  previously  "executed,"  but  not  registered  as  required  by  law; 
Black  v.  Fishburne,  84  S.  C.  453,  66  S.  E.  681,  holding  bonds  could  not  be  re- 
garded as  issued  until  a  contract  of  sale  is  completed  and  a  delivery  of  the 
bonds  made;  Zimmerman  v.  Timmerman,  193  X.  Y.  493,  86  X.  E.  540,  holding 
a  mortgage  bond  of  a  railroad  company  is  deemed  issued  when  it  comes  into  the 
hands  of  the  holder  so  executed  and  delivered  as  to  bind  obligor. 
Employment  of  assistance  in  negotiation  of  bonds. 

Cited  in  Armstrong  v.  Ft.  Edward,  159  X.  Y.  318,  53  X.  E.  1116,  Reversing  84 
Hun,  265,  32  X.  Y.  Supp.  433,  holding  authority  to  water  commissioners  to  sell 
bonds  includes  power  to  employ  proper  assistance  to  effect  sale,  and  person  em- 
ployed need  not  be  broker. 
Rights  of  purchaser  of  bonds. 

Cited  in  Hoag  v.  Greenwich.  133  X.  Y.  163,  30  X.  E.  842,  Affirming  39  X.  Y.  S. 
R.  971,  15  X.  Y.  Supp.  743,  holding  issue  of  bonds  making  more  than  10  per  cent 
of  entire  loan  payable  in  one  year,  contrary  to  statute,  not  invalid  in  hands  of 
innocent  purchaser;  Ontario  v.  Union  Bank,  21  Misc.  771,  47  X.  Y.  Supp.  927, 
holding  purchaser  of  town  bonds  bound  to  take  notice  of  express  statutory  limi- 
tations upon  authority  of  municipality;  Citizens'  Sav.  Bank  v.  Greenburgh,  17$ 


4  L.R.A.  685]  L.  R.  A.  CASES  AS  AUTHORITIES.  748 

X.  V.  223,  65  N.  E.  978,  holding  irregularities  of  officers  of  towns  in  the  disposal 
of  bonds  did  not  affect  their  validity  in  the  hands  of  innocent  bona  fide  purchasers. 

Cited  in  footnotes  to  ^Yilkes  County  v.  Call,  44  L.  R.  A.  252,  which  denies  pos- 
sibility of  bona  fide  holder  of  county  bonds  issued  under  unconstitutional  statute; 
Flagg  v.  School  Dist.  Xo.  70.  25  L.  R.  A.  363,  winch  denies  right  to  question,  as 
against  bona  fide  purchaser,  consideratidn  of  bonds  issued  to  pay  audited  claims. 

Distinguished  in  Citizens  Sav.  Bank  v.  Greenburg,  31  Misc.  431,  65  X.  Y.  Supp. 
554,  holding  authority  of  town  to  issue  bonds  is  special,  and  all  persons  taking 
bonds   are   chargeable   with   knowledge   of   limitations   on  authority   imposed   by 
statute. 
Construction    of   powers    in    sreneral. 

Cited  in  People  ex  rel.  Percival  v.  Cram,  29  Misc.  366,  61  XT.  Y.  Supp.  858,  hold- 
ing when  power  given,  or  duty  imposed,  by  statute,  everything  necessary  to  make 
power  effectual  or  essential  to  performance  of  duty,  is  "implied;"  Litchfield  v. 
Bond,  105  App.  Div.  231,  93  N.  Y.  Supp.  1016,  on  statute  authorizing  an  act  to 
be  done  as  authorizing  all  that  is  necessarily  done  in  its  performance. 

Cited  in  note  (  1  1  L.  R.  A.  583  )  on  delegated  authority  cannot  be  redelegated. 
Validating-  acts. 

Cited  in  Kittinger  v.  Buffalo  Traction  Co.  160  X.  Y.  384,  54  X.  E.  1081,  hold- 
ing that  acts  done  pursuant  to  statutory  authority  not  strictly  followed  may  be 
validated  by  legislature. 

Cited  in  notes   (27  L.  R.  A.  698)   on  statutes  legalizing  invalid  municipal  con- 
tracts:   (48  L.  R.  A.  479)   on  validating  defective  obligations. 
Pleading:;   action   to  collect  assessment. 

Cited  in  Ithaca  v.  Cornell,  75  Hun,  428,  27  X'.  Y.  Supp.  682,  holding  allegations 
of  complaint  to  enforce  personal  liability  for  assessment  for  improvement 
sufficient. 

Cited  in  note    (15  L.R.A.  673)    on  cross-examination  of  defendant  in  criminal 


Distinguished  in  People  v.  Hinksman,  192  X.  Y.  433,  85  N.  E.  676,  holding 
that  general  character  of  witness  testifying  in  his  own  behalf  is  not  open  to 
attack  through  evidence  of  other  witnesses  unless  he  introduces  evidence  of  good 
character. 

4  L.  R.  A.  692,  WEST  v.  FIRST  PRESBY.  CHURCH,  41  Minn.  94,  42  X.  W.  922. 
Requisites    to    "call"    to    become    pastor    of    Presbyterian    church. 

Cited  in  First  Presby.  Church  v.  Myers,  5  Okla.  822,  38  L.  R.  A.  693,  50  Pac. 
70,  holding  "call"  to  minister  from  congregation  of  Presbyterian  church,  not  au- 
thorized by  Presbytery,  does  not  entitle  minister  to  recover  salary  designated  in 
call. 
Liability  of  church  corporation  upon  contract  of  service. 

Cited  in  footnote  to  Parshley  v.  Third  M.  E.  Church,  30  L.  R.  A.  574,  which  de- 
fies liability  of  church  corporation  for  services  of  attorney  under  procurement 
of  individual  trustees. 

Cited  in  note   (38  L.R.A.  688)   on  liability  for  salary  of  pastor. 

4  L.  R.  A.  699,  HEISKELL  v.  CHICKASAVV  LODGE  XO.  8,  87  Tenn.  688,  11  S. 

W.  825. 
Sufficiency   of  devise  to   charitable   use. 

Cited  in  Johnson  v.  Johnson.  92  Tenn.  504.  22  L.  R.  A.  180,  footnote  p.  179, 
36  Am.  St.  Rep.  104,  23  S.  W.  114.  holding  devise  to  trustees  for  "some  charitable 
purpose"  preferably  educational,  but  within  trustee's  discretion,  too  indefinite  in 


749  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  G99 

equity;  Dye  v.  Beaver  Creek  Church,  48  S.  C.  456,  59  Am.  St.  Rep.  724,  26  S.  E. 
717,  holding  devise  "for  poor  children,  for  their  tuition,"  not  void  for  uncertainty 
in  objects  and  beneficiaries;  Re  John,  30  Or.  525,  36  L.  R.  A.  252,  47  Pac.  341, 
holding  charitable  trust  will  not  fail  because  judges  fail  to  appoint  board  ol 
trustees  to  succeed  executors  as  authorized,  or  because  board  not  of  perpetual  suc- 
cession in  law;  Troutman  v.  De  Boissiere,  66  Kan.  39,  71  Pac.  286  (dissenting 
opinion),  majority  holding  void,  gift  in  perpetual  trust  to  provide  home  for  chil- 
dren of  deceased  Odd  Fellows;  Troutman  v.  De  Boissiere  Odd  Fellows'  Orphans' 
Home,  66  Kan.  39,  5  L.R.A.(N.S.)  718,  71  Pac.  286  (dissenting  opinion),  on 
validity  of  gift  to  trustees  to  provide  orphans'  home. 

Cited  in  footnotes  to  Adams  Female  Academy  v.  Adams,  6  L.  R.  A.  785,  which 
authorizes  use  for  public  school  of  fund  bequeathed  to  establish  "female 
academy;"  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  arbitrary  powers  not 
given  trustees  of  charity  by  authority  to  set  aside  amount  of  income  to  pay  ex- 
penses; People  ex  rel.  Atty.  Gen.  v.  Dashaway  Asso.  12  L.  R.  A.  117,  which  holds 
promotion  of  cause  of  temperance,  too  vague  description  of  purpose  for  which 
corporation  formed;  Gambel  v.  Trippe,  15  L.  R.  A.  235,  which  holds  bequest  to 
trustees  to  pay  over  "to  some  Presbyterian  institution"  in  specified  city  void  for 
indefiniteness;  Kelly  v.  Nichols,  19  L.  R.  A.  413,  as  to  what  constitutes  char- 
itable use  or  trust;  Harrington  v.  Pier,  50  L.  R.  A.  307,  which  holds  bequest  for 
promotion  of  temperance  work  in  certain  city  not  fatally  indefinite;  Woman's 
Foreign  Missionary  Soc.  v.  Mitchell,  53  L.  R.  A.  711,  which  holds  legacy  to 
Board  of  Managers  of  Foreign  Missionary  Society  of  M.  E.  Church  properly  paid 
to  Woman's  Foreign  Missonary  Society;  Thompson  v.  Brown,  62  L.R.A.  398, 
which  upholds  devise  of  fund  to  be  distributed  by  executor  "to  the  poor"  in  his 
discretion. 

Cited  in  notes  (5  L.  R.  A.  37)  on  what  are  charitable  gifts;  (5  L.  R.  A.  109) 
on  charitable  uses;  (6  L.  R.  A.  84)  on  what  constitutes  public  charities;  (6  L. 
R.  A.  511)  on  charitable  gifts;  (10  L.  R.  A.  767)  on  construction  of  wills  and 
administration;  (14  L.R.A.(N.S.)  75,  105,  110,  116,  122)  on  enforcement  of 
general  bequest  for  charity  or  religion;  (63  Am.  St.  Rep.  262)  on  what  are 
charitable  uses  or  trusts. 
Capacity  to  take  property. 

Cited  in  Rhodes  v.  Rhodes,  88  Tenn.  638,  13  S.  W.  590,  holding  unincorporated 
religious  organization  not  qualified  to  take  personalty  under  capacity  to  take 
land  for  purposes  of  public  worship;  Xance  v.  Busby,  91  Tenn.  314,  15  L.  R.  A. 
804,  18  S.  W.  874.  holding  deed  to  religious  society  not  defeated  by  nonincorpora- 
tion,  where  authorized  by  statute;  Chattanooga,  R.  &  C.  R.  Co.  v.  Evans,  14  C. 
C.  A.  122,  31  U.  S.  App.  432,  66  Fed.  816,  holding  penal  statute  declaring  it  un- 
lawful for  any  foreign  corporation  to  acquire  property  without  complying  with 
conditions,  does  not  invalidate  purchase  without  compliance. 

Cited  in   footnote  to  Penny  v.  Croul,  5  L.  R.   A.   858.  which  holds  board  of 
water  commissioners  may  receive  gift  of  income  to  ornament  and  maintain  library 
on  waterworks  grounds. 
AVho   may  attack  devise  or  errant   to  charity  for  want  of  power. 

Cited  in  Farrington  v.  Putnam,  90  Me.  433,  38  L.  R.  A.  350,  37  Atl.  652,  hold- 
ing bequest  to  charitable  corporation  in  excess  of  amount  permitted  by  general 
law.  avoidable  by  state  alone:  Hubbard  v.  Worcester  Art  Museum.  194  Mass.  289, 
9  L.R.A.  (X.S.)  694,  80  X.  E.  490,  10  A.  &  E.  Ann.  Cas.  1025,  holding  a  devise 
to  a  charitable  corporation  in  excess  of  the  amount  it  is  authorized  to  hold  ia 
valid  against  all  but  the  state;  Barnes  v.  Multnomah  County,  l4u  Fed.  698r 
holding  an  objection  that  a  county  had  no  power  to  purchase  and  hold  lands 


4  L.R.A.  000 j  L.  R.  A.  CASES  AS  AUTHORITIES.  750 

for  the  purpose  intended  could  only  be  raised  by  the  state  where  the  right  existed 
for  some  purposes. 

Cited  in  note  (60  Am.  St.  Rep.  320)  on  right  of  heirs  to  assail  legacy  to  cor- 
poration. 

Distinguished  in  Buckeye  Marble  Freestone  Co.  v.  Harvey,  02  Tenn.  120,  18 
L.  R.  A.  255,  36  Am.  St.  Rep.  71,  20  S.  W.  427,  holding  contract  by  stockholder 
and  president  of  corporation  to  pay  half  of  liability  which  may  be  fixed  by  suits, 
made  part  of  transfer  of  his  stock  to  another  corporation  to  transfer  control, 
void  and  unenforceable  although  vendee  has  executed  its  part  of  contract. 
Availability  of  defense  of  ultra  vires. 

Cited  in  note  (70  Am.  St.  Rep.  178)  on  doctrine  that  only  state  may  raise 
question  of  ultra  vires. 

4  L.  R.  A.  707,  PEOPLE  v.  HINCHMAN,  75  Mich.  587,  42  N.  W.   1006. 
Sufficiency   of   information. 

Cited  in  note  ( 10  L.  R.  A.  247 )  on  form  and  sufficiency  of  indictment  under 
liquor  laws. 

Distinguished  in  Peters  v.  Eaton  Circuit  Judge,  153  Mich.  470,  117  N.  W.  68, 
holding  a  druggist  could  not  be  convicted  for  the  sale  of  liquor  for  other  than 
medical  purposes  where  no  averment  that  he  had  given  the  prescribed  druggists' 
bond. 
Testimony   of  subsequent   facts. 

Cited  in  State  v.  Ah  Lee,   18  Or.  544,  23  Pac.  424,  holding  testimony  as  to 
when  Avitness   heard   of   an   occurrence   hearsay   and   not   competent   as   to   time 
thereof. 
Oral  evidence  of  testimony  on  examination. 

Cited  in  Kain  v.  Larkin,  131  N.  Y.  312,  30  N.  E.  105,  holding  oral  evidence 
of  testimony  on  examination  reduced  to  writing  and  read  over  to  and  subscribed 
by  witness,  incompetent. 

Cited  in  note   (11  Eng.  Rul.  Cas.  215,  507)   on  oral  evidence  of  testimony. 
Reliance   upon   purchaser's   statement. 

Cited  in  White  v.  State,  45  Tex.  Crim.  Rep.  604,  79  S.  W.  523,  holding  court 
properly  refused  a  charge  that  if  the  accused  made  the  sale  of  the  liquor  in  good 
faith  he  could  not  be  convicted  although  he  made  no  extended  investigation  of 
the  purpose  of  the  purchaser  whom  he  did  not  know. 

Cited  in  notes  (7  L.  R.  A.  297)  on  permits  to  pharmacists;  (10  L.  R.  A.  81,  82) 
on  regulation  of  sales  by  druggists. 

Distinguished  in  McDonald  v.  Casey,  84  Mich.  508,  47  N.  W.  1104,  holding 
saloon  keeper  knowingly  selling  liquor  to  drunkard,  not  excused  by  reliance  upon 
purchaser's  statement  that  it  was  for  medicine. 

4  L.  R.  A.  709,  PEOPLE  v.  PEARL,  76  Mich.  207,  15  Am.  St.  Rep.  304,  42  N. 

W.   1109. 
Liability   for   cbastising^  aggressor. 

Cited  in  Shriver  v.  Bean,  112  Mich.  514,  7i  N.  W.  145  (dissenting  opinion), 
majority  holding  force  of  testimony  of  threat  made  by  one  claiming  accidental 
discharge  of  firearm  in  defense  to  charge  of  assault,  for  jury  upon  issue  of  in- 
tent; Barr  v.  State,  45  Neb.  464,  63  N.  W.  856,  holding  one  honestly  and  in  good 
faith  anticipating  great  bodily  harm,  justified  in  using  such  force  in  self-de- 
fense as  to  him  appeared  reasonably  necessary;  People  v.  Conley,  106  Mich. 
425,  64  N.  W.  325,  holding  question  of  intent  to  do  great  bodily  harm  less  than 


.751  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  710 

murder,  for  jury,  where  testimony  tends  to  show  ill  will  of  long  standing,  and 
aggravated  assault  with  threat  to  kill. 

Cited  in  footnotes  to  State  v.  Bartlett,  59  L.R.A.  756,  -which  holds  one  inca- 
pable of  defending  himself,  justified  in  using  deadly  weapon  when  assaulted  in 
street  with  whip;  State  v.  Evenson,  64  L.R.A.  77,  which  holds  that  one  assaulted 
by  citizens  of  town  to  compel  him  to  leave  may  repel  the  attack  by  such  force 

•  as   is  necessary  short  of  killing  assailants. 

4  L.  R.  A.  710,  LOUISVILLE  &  N.  R.  CO.  v.  HALL,  87  Ala.  708,   13  Am.  St. 
Rep.  84,  6  So.  277. 

Judgment  on  verdict  on  new  trial  reversed  in  Louisville  &  N.  R.  Co.  v.  Hall, 
•91  Ala.  112,  24  Am.  St.  Rep.  863,  8  So.  371. 

Referred  to  in  Lay  v.  Nashville,  C.  &  St.  L.  R.  Co.  131  Ga.  346,  62  S.  E.  189, 
.as  having  been  read  to  jury  on  trial. 
Duty    to   give   warning?   at   crossings. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Markee,  103  Ala.  173,  49  Am.  St.  Rep.  21, 
15  So.  511,  holding  railway  company  under  no  obligation  to  employee  to  blow 
whistle  at  curve  or  crossing,  by  reason  of  Code,  §  1144;  Central  R.  Co.  v.  Mar- 
tin, 138  Ala.  546,  36  So.  426,  holding  statutory  requirement  as  to  signals  not 
for  protection  of  trainmen  of  different  companies  using  same  road;  (7  L.  R.  A. 
317)  on  duty  to  ring  bell  or  blow  whistle  on  approaching  highway  crossing; 
(9  L.  R.  A.  158)  on  duty  of  railroad  to  warn  travelers  on  approach  to  highway 
crossing;  (16  L.  R.  A.  119)  as  to  railway  crossings  at  which  signals  of  trains 
are  required;  Lewis  v.  Southern  R.  Co.  143  Ala.  137,  38  So.  1023,  holding  the 
requirement  of  a  statute  that  signals  be  given  as  a  train  approaches  a  public 
road  crossing  only  applies  to  grade  crossings;  New  York,  C.  &  St.  L.  R.  Co. 
v.  Martin,  35  Ind.  App.  676,  72  N.  E.  654,  holding  a  person  injured  by  reason 
of  his  horse  taking  fright  at  a  train  which  approached  a  crossing  without  giving 
a  signal  could  not  recover  damages  where  at  time  he  was  travelling  a  side 
road  parallel  to  track;  Everett  v.  Great  Northern  R.  Co.  100  Minn.  319,  9  L.R.A. 
(N.S.)  708,  111  N.  W.  281,  ]0  A.  &  E.  Ann.  Cas.  294,  holding  same  where  horse 
of  plaintiff  travelling  on  a  parallel  street  took  fright  at  a  freight  car  being  moved 
by  hand;  Lepard  v.  Michigan  C.  R.  Co.  166  Mich.  387,  40  L.R.A. (N.S.)  1112,  130 
N.  W.  668,  holding  that  sectionman  cannot  maintain  action  for  negligence  of  rail- 
road in  failing  to  blow  whistle  at  crossing. 

Cited  in  notes  (14  Am.  St.  Rep.  87)  on  duty  of  railway  company  as  to  persons 
upon  or  approaching  crossings;  (16  Am.  St.  Rep.  247)  on  signals  at  railway 
.crossings;  (57  Am.  St.  Rep.  781)  on  negligence  at  railroad  crossings;  (100  Am. 
St.  Rep.  202)  on  right  to  recover,  in  absence  of  privity,  for  failure  of  railroad 
to  give  signals  at  crossing. 
Duty  to  maintain  proper  roadbed  and  appliances. 

Cited  in  Alabama  G.  S.  R.  Co.  v.  Moody,  92  Ala.  286,  9  So.  238,  holding  duty 
to  employees  discharged  by  use  of  appliances  ordinarily  used  on  well-regulated 
roads,  though  not  the  newest  inventions;  Louisville  &  N.  R.  Co.  v.  Banks,  104 
Ala.  513,  16  So.  547,  holding  it  not  wilful  negligence  to  construct  bridge  so  low 

•  as  to  compel  brakeman  to  stoop,  though   possible  to  build  higher  at  slight  ex- 
pense and  without  inconvenience  to  public;   Louisville  &  N.  R.  Co.  v.  Campbell, 
97   Ala.   152,    12   So.   574,   holding  unnecessary  to  inspect  brakes  by  removal   of 
rods,  where  such  inspection  not  customary;  Georgia  P.  R.  Co.  v.  Davis,  92  Ala. 
309,  25  Am.  St.  Rep.  47,  9  So.  252,  holding  brakeman  authorized  to  assume  that 
roadbed  and  adjoining  banks  are  in  safe  condition  for  him  to  perform  duties. 

Cited  in  note  (41  L.  R.  A.  62)  on  knowledge  as  element  of  employer's  liability 
to  injured  servant. 


4  L.R.A.  710]  L.  R.  A.  CASES  AS  AUTHORITIES.  752 

Evidence    concerning:    sufficiency. 

Cited  in  East  Tennessee,  V.  &  G.  R.  Co.  v.  Thompson,  94  Ala.  639,  10  So.  280, 
holding  length  of  time  supply  pipe  to  water  tank  had  been  in  use  without  caus- 
ing injury  to  employees,  competent  in  action  for  death  of  brakeman  caused  there- 
by; Richmond  &  D.  R.  ,Co.  v.  Jones,  92  Ala.  225,  9  So.  276,  holding  evidence 
as  to  drawheads  customarily  used  on  engines  by  well-regulated  railroads  com- 
petent; Schlaff  v.  Louisville  &  N.  R.  Co.  100  Ala.  388,  14  So.  105,  holding  gen- 
eral reputation  of  bridge  as  being  too  low  incompetent  to  prove  that  fact,  though 
admissible  to  show  knowledge  of  its  condition  by  railway  company;  Louisville  & 
X.  R.  Co.  v.  Jones,  130  Ala.  473.  30  So.  586,  holding  use  of  appliance  by  eight 
other  specific  railways  not  conclusive  as  to  sufficiency;  Brady  v.  North  Jersey 
Street  R.  Co.  76  X.  J.  L.  748,  71  Atl.  238,  holding  an  entry  in  a  book  kept  by  the 
company  in  which  motormen  were  required  to  enter  the  condition  of  their 
cars  was  admissible  in  evidence  as  showing  notice  to  the  master  of  an  existing 
condition. 
Necessity  justifying:  dangerous  condition. 

Distinguished  in  Kansas  City,  M.  &•  B.  R.  Co.  v.  Burton,  97  Ala.  251,  12  So. 
88,  holding  convenience  of  shipper  no  excuse  for  leaving  freight  car  on  siding 
dangerously  near  adjoining  track. 
Assumption   of  risk. 

Cited  in  Louivsille  &  N.  R.  Co.  v.  Stutts,  105  Ala.  376,  53  Am.  St.  Rep.  127, 
17  So.  29,  holding  engineers  continuing  in  service  aware  of  patent  defects  in  en- 
gine and  trestle  cannot  recover  for  injuries  due  to  such  defects;  Highland  Ave. 
&  Belt  R.  Co.  v.  Walters,  91  Ala.  442,  8  So.  357,  holding  continuance  in  employ 
after  knowledge  of  danger  and  notice  to  employer  not  negligence  unless  danger 
so  great  that  reasonable  man  would  not  have  continued  in  service;  Birmingham 
R.  &  Electric  Co.  v.  Allen,  99  Ala.  370,  20  L.  R.  A.  460,  13  So.  8,  holding  em- 
ployers' liability  act  (Code,  §  2590)  does  not  alter  rule  where  employee  continues 
in  service  after  knowledge  of  danger,  although  employer  aware  of  defect;  Chi- 
cago, R.  I.  &  P.  R.  Co.  v.  Galloway,  137  111.  App.  306,  on  doctrine  of  assumed  risk 
as  not  applying  against  an  inexperienced  servant. 
Contributory  negligence. 

Cited  in  Chewning  v.  Ensley  R.  Co.  100  Ala.  495,  14  So.  204,  holding  party 
waiting  to  board  train,  who  absent-mindedly  steps  back  upon  cross-ties  where 
struck  by  engine,  guilty  of  contributory  negligence;  Tuscaloosa  Waterworks  Co. 
v.  Herren,  131  Ala.  84,  31  So.  444,  holding  no  recovery  by  employee  injured 
through  fall  caused  by  beam  temporarily  placed  carelessly  on  stairway,  of  which 
he  was  aware  but  had  momentarily  forgotten;  Louisville  &  N.  R.  Co.  v.  Banks, 
104  Ala.  513,  16  So.  547,  holding  no  recovery  for  death  of  brakeman  struck  by 
low  bridge  under  which  he  had  passed  many  times  and  of  which  duly  warned; 
Anderberg  v.  Chicago  &  N.  W.  R.  Co.  98  111.  App.  210,  holding  unnecessary  to 
\varn  switchman  of  danger  of  bridge  under  which  he  had  passed  several  times 
daily  for  four  months;  McLaren  v.  Alabama  Midland  R.  Co.  100  Ala.  510,  14  So. 
405,  holding  no  recovery  by  passenger  injured  while  boarding  slowly  moving 
train,  by  reason  of  dangerous  proximity  of  platform,  where  aware  of  danger  of 
which  temporarily  forgetful;  Wood  v.  Richmond  &  D.  R.  Co.  100  Ala.  661,  13 
So.  552,  holding  temporary  forgetfulness  by  passenger,  of  lumber  negligently 
piled  on  platform,  prevents  recovery  for  injury  caused  thereby  while  approaching 
to  board  train. 

Cited  in  notes  (7  L.  R.  A.  678,  12  L.  R.  A.  279)  on  contributory  negligence 
as  defense;  (49  L.  R.  A.  54)  on  contributory  negligence  in  entering  or  remaining 
in  employment. 


753  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  710 

Pleading:     contributory     negligence. 

Cited  in  Kansas  City,  M.  &  B.  R.  Co.  v.  Crocker,  95  Ala.  424,  11  So.  262,  hold- 
ing general  issue  insufficient  to  raise  question  of  contributory  negligence;  Mc- 
Donald v.  Montgomery  Street  R.  Co.  110  Ala.  175,  2.  So.  317;  Leaven  worth 
Light  &  Heating  Co.  v.  \Yaller,  65  Kan.  519,  70  Pac.  365,  holding  no  admission 
of  defendant's  negligence  where  plea  of  contributory  negligence  accompanied 
by  denial. 
Obscure  or  argumentative  instruction  to  jury. 

Cited  in  Georgia  P.  R.  Co.  v.  Propst,  90  Ala.  3,  7  So.  635;  Croft  v.  State.  95 
Ala.  4,  10  So.  517;  Troy  Fertilizer  Co.  v.  Norman,  107  Ala.  682,  18  So.  201; 
Adams  v.  State,  115  Ala.  91,  67  Am.  St.  Rep.  17,  22  So.  612;  McGee  v.  State, 
117  Ala.  231,  23  So.  797, — holding  such  instruction  should  not  be  given;  Ala- 
bama Consolidated  Coal  &  I.  Co.  v.  Heald,  168  Ala.  651,  53  So.  162,  holding  that 
charge  that  if  jury  believe  that  foul  air  in  mine  was  proximate  cause  of  plain- 
tiff's death,  and  not  order  of  master  mechanic,  there  could  be  no  recovery,  is 
properly  refused. 
Harmless  error. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Trammell,  93  Ala.  353,  9  So.  870,  and  Louis- 
ville &  N.  R.  Co.  v.  Davis,  91  Ala.  493,  8  So.  552,  holding  judgment  not  reversed 
for  error  in  sustaining  demurrer  to  plea  where  benefit  of  matters  specially 
pleaded  obtained  under  general  issue;  Northern  Alabama  R.  Co.  v.  Mansell,  138 
Ala.  561,  36  So.  459,  holding  defendant  not  injured  by  sustaining  of  demurrer 
to  plea  where  its  averments  were  admissible  under  general  issue. 
Duty  to  vrarn  servant. 

Cited  in  Fisher  v.  Prarie,  26  Okla.  343,  109  Pac.  514,  holding  that  it  is  duty- 
of  master  to  warn  lineman  of  dangers  of  duties  of  troubleman,  though  lineman 
represented  himself  as  experienced  and  competent. 

Cited  in  notes   (44  L.  R.  A.  54,  83)   on  duty  of  master  to  instruct  and  warn-, 
servant  as  to  perils  of  employment. 
Exemplary  or  punitive   damages. 

Cited  in  Florida  C.  &  P.  R.  Co.  v.  Mooney,  45  Fla.  293,  110  Am.  St.  Rep.  73, 
33  So.  1010,  holding  court  erred  in  refusing  to  charge  that  exemplary  or  punitive 
damages  should  not  be  given  where  there  was  no  evidence  tending  to  prove  neg- 
ligence of  gross  character. 
Pleading    negligence. 

Cited  in  Atlantic  Coast  Line  R.  Co.  v.  Beazley,  54  Fla.  325,  45  So.  761,  holding 
a  declaration  in  action  for  personal  injuries  which  states  that  plaintiff  in  the 
course  of  his  duties  occupied  a  particular  position  where  he  was  injured  because 
of  defendant's  negligence,  is  not  demurrable  as  showing  that  plaintiff  voluntarily 
exposed  himself  to  such  danger;  Lacy- Buck  Iron  Co.  v.  Holmes,  164  Ala.  102, 
51  So.  236,  holding  that  complaint  for  death  of  servant  by  being  knocked  from 
car  by  overhead  beam  through  failure  of  engineer  to  give  warning  on  starting 
must  allege  duty  of  engineer  to  give  warning. 
Admissibility  of  evidence  of  condition  before  and  after  accident. 

Cited  in  note  (32  L.R.A.(N.S.)  1163)  on  admissibility  of  evidence  of  condition 
before  and  after  accident  of  property  whose  defects  alleged  to  have  caused  injury. 

4  L.  R.  A.  716,  HOUSTON  v.  TLMMKUMAN,  17  Or.  499,  11  Am.  St.  Rep.  848, 

21  Pac.  1037. 
Who  affected  by  Us  neudeiis. 

Cited  in  Jennings  v.  Kiernan,  35  Or.   358,  55  Pac.  443,  holding  judgment  for 
United  States  annulling  land  patent  not  binding  upon  one  without  notice  who 
L.R.A.  Au.  Vol.  L— 48. 


4  L.E.A.  7] 6]  L.  R.  A.  CASES  AS  AUTHORITIES.  754 

to  knowledge  of  government  has  equity  under  executory  purchase,  although  pend- 
inf  that  action  he  receives  deed  which  he  fails  to  record;  Bergman  v.  Inman,  43 
Or.  459,  -99  Am.  St.  Rep.  771,  72  Pac.  1086,  holding  purchaser  of  logs  pending 
litigation  to  determine  question  of  lien,  takes  subject  to  judgment  of  court  in 
relation  thereto;  Posson  v.  Guaranty  Loan  Asso.  44  Or.  107,  74  Pac.  923.  holding 
an  assignment  hy  defendant  during  the  pendency  of  a  suit  of  the  subject-matter 
thereof  does  not  defeat  the  suit. 

Cited  in  footnotes  to  Mach  v.  Blanchard,  58  L.R.A.  811,  which  holds  mortga- 
gee of  land  restored  to  mortgagor  by  default  judgment  against  his  grantee,  takes 
subject  to  having  title  defeated  by  opening  of  judgment;  DiNola  v.  Allison,  65 
L.R.A.  419,  which  holds  title  of  stranger  purchasing  after  taking  of  appeal  from 
judgment  from  one  who  had  purchased  land  at  his  own  foreclosure  sale  subject 
to  defeat  by  reversal  of  the  judgment. 

Cited  in  notes   (7  L.  R.  A.  812)   on  notice  of  Us  pendens;  (8  L.  R.  A.  553)   on 
effect  of  notice  of  pendency  of  suit;    (56  Am.  St.  Rep.  854,  858,  864,  865,  870) 
on  law  of  lis  pendens. 
When  lis  pendens  effective. 

Cited  in  Moody  v.  Millen,  103  Ga.  454,  30  S.  E.  258,  holding  doctrine  of  lis 
pendens  inapplicable  to  bona  fide  purchaser  from  claimant,  whose  claim,  duly 
returned  and  filed,  was  interposed  before  notice;  Moragne  v.  Don,  143  Ala.  463, 
111  Am.  St.  Rep.  52,  39  So.  161,  5  A.  &  E.  Ann.  Cas.  331,  holding  the  pendency 
of  a  bill  in  chancery  for  the  removal  of  the  administration  of  an  estate  into 
chancery  is  not  lis  pendens  to  affect  the  title  to  land  sold  under  execution  issued 
on  the  decree  rendered. 
Title  to  realty  in  suit  for  divorce. 

Cited  in  Wetmore  v.  Wetmore,  40  Or.  333,  67  Pac.  98,  holding  title  to  realty 
cannot  be  litigated  in  proceeding  primarily  for  divorce,  and  which  fails  on  that 
ground;  Huffman  v.  Huffman,  47  Or.  615,  114  Am.  St.  Rep.  943,  86  Pac.  593, 
holding  where  a  wife  was  granted  a  divorce  and  custody  of  children  court  had 
no  authority  to  award  to  her  possession  of  land  occupied  by  the  husband  within 
the  intention  of  homestead  laws. 

Cited  in  note  (102  Am.  St.  Rep.  706)  on  power  of  courts  to  create  and  enforce 
liens  to  secure  payment  of  alimony. 
Allegation    sufficient    to    reach    realty. 

Cited  as  obiter  in  Ross  v.  Ross,  21  Or.  12,  26  Pac.  1008,  holding  divorced  party 
without  title  to  one  third  of  other's  realty  where  same  not  mentioned  in  allega- 
tions or  decree. 

4  L.  R.  A.  721,  CARTERVILLE  v.  COOK,   129  111.   152,   16  Am.  St.  Rep.  248, 

22  N.  E.  14. 
Liability   in   cases   of   concurrent    negligence. 

Cited  in  Doremus  v.  Root,  23  Wash.  715,  54  L.  R.  A.  657,  63  Pac.  572,  holding 
master  not  liable  on  theory  of  respondent  superior  when  servant  not  found  neg- 
ligent; Johnson  v.  Chapman,  43  W.  Va.  642,  28  S.  E.  744,  holding  owner  of 
building  crushed  by  two  other  buildings  can  maintain  joint  or  separate  action 
against  owners;  Cook  v.  Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  98  Wis.  643, 
40  L.  R.  A.  463,  67  Am.  St.  Rep.  830,  74  N.  W.  561,  holding  railway  not  liable 
for  loss  due  to  fire  negligently  allowed  to  spread  from  its  right  of  way  and 
combining  with  independent  fire  that  would  have  burned  property;  Matthews 
v.  Delaware,  L.  &  W.  R.  Co.  56  N.  J.  L.  37,  22  L.  R.  A.  262,  27  Atl.  919,  hold- 
ing railway  liable  for  injury  to  passengers  in  street  car  crossing  railway  due 
to  combined  negligence  of  railways;  Omaha  v.  Richards,  49  Neb.  249,  68  X.  W. 
528,  holding  city  liable  for  drowning  of  boy  in  pond  negligently  permitted  to 


755  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  721 

accumulate  in  street  and  left  unguarded;  Olathe  v.  Mizee,  48  Kan.  438,  30  Am. 
St.  Rep.  308,  29  Pac.  754,  holding  city  Habit;  for  injury  due  to  one  crossing 
street,  falling  into  unguarded  and  unlighted  excavation  while  stepping  aside 
for  passersby;  Cleveland,  C.  C.  &  I.  R.  Co.  v.  Wynant,  134  Ind.  695,  34  X.  E.  569, 
•holding  railway  liable  for  injury  due  to  car  and  noise  concurring  to  frighten 
horse;  Brown  v.  Coxe  Bros.  &  Co.  75  Fed.  691.  holding  cause  not  removable 
to  Federal  court  when  action  for  concurring  negligence  is  treated  as  joint  lia- 
bility preventing  severability ;  Ashborn  v.  Waterbury,  70  Conn.  555,  40  Atl.  458, 
holding  town  liable  for  accident  due  to  falling  down  embankment  unguarded  by 
railing,  combined  with  depression  and  pile  of  stone  in  highway;  Colorado  Mortg. 
&  Invest.  Co.  v.  Rees,  21  Colo.  446,  42  Pac.  42,  holding  company  liable  for  un- 
safe condition  of  elevator  the  door  of  which  was  left  open  by  trespasser;  Malott 
v.  Hood,  99  111.  App.  363,  holding  master  liable  for  injury  due  to  absence  of 
handholds  combined  with  uneven  condition  of  ground;  Chicago  &  E.  I.  R.  Co. 
v.  Mochell,  96  111.  App.  183,  holding  railroad  liable  for  injury  due  to  concur- 
rence of  train  running  at  unlawful  speed  and  recklessness  of  street  railway  em- 
ployees; Flora  v.  Pniett,  81  111.  App.  164,  holding  city  liable  for  injury  due  to 
unsafe  condition  of  lumber  pile,  combined  with  boy  sliding  down  a  post ;  Mc- 
Gregor v.  Reid,  M.  &  Co.  178  111.  470,  69  Am.  St.  Rep.  332,  53  N.  E.  323,  hold- 
ing master  liable  for  injury  due  to  negligence  in  putting  up  elevator,  combined 
with  want  of  repair  of  safety  device ;  Chicago  &  A.  R.  Co.  v.  Nelson,  53  111.  App. 
154.  holding  railroad  liable  for  injury  to  lad  slipping  under  engine  from  cinder 
pile  at  crossing;  Murphysboro  v.  Woolsey,  47  111.  App.  449,  holding  city  liable 
for  injury  due  to  child  by  negligence  of  mother,  combined  with  slanting  side- 
walk; Champaign  v.  Jones,  32  111.  App.  181,  holding  city  liable  for  injury  due 
to  sudden  backing  of  other  team  and  frozen  mudrow  in  middle  of  street,  while 
one  is  driving  between  them;  Danville  v.  Makemson,  32  111.  App.  114,  holding 
city  liable  for  injury  due  to  shying  horse  throwing  wagon  down  unguarded 
embankment;  Swisher  v.  Illinois  C.  R.  Co.  182  111.  549,  55  N.  E.  555,  holding 
railroad  liable  for  injury  due  to  combined  negligence  of  vice  principal  and  fel- 
low servant:  Rock  Falls  v.  Wells,  169  111.  227,  48  N.  E.  440,  holding  city  liable 
for  injury  due  to  concurrence  of  runaway  and  defective  condition  of  street; 
Pullman  Palace  Car  Co.  v.  Laack,  143  111.  261,  18  L.  R.  A.  220,  32  N.  E.  285, 
holding  master  liable  for  injuries  due  to  its  negligence  concurring  with  that  of 
fellow  servant;  St.  Louis  Bridge  Co.  v.  Miller,  138  111.  476,  28  N.  E.  1091,  Affirm- 
ing 39  111.  App.  375,  holding  bridge  company  liable  for  injuries  due  to  squeez 
ing  by  drove  of  mules  driven  over  bridge  without  proper  barriers  between 
footpath  and  carriageway;  Joliet  v.  Shufeldt,  144  111.  409,  18  L.  R. 
A.  751,  36  Am.  St.  Rep.  453,  32  N.  E.  969,  Affirming  42  111.  App.  219,  holding 
city  liable  for  injury  due  to  concurrence  of  accidental  runaway  and  defective 
street;  Boyle  v.  Illinois  C.  R.  Co.  88  111.  App.  259,  holding  evidence  did  not 
disclose  contributory  negligence  on  part  of  railway;  Armour  v.  Golkowska.  202 
111.  149.  66  X.  E.  1037,  holding  it  unnecessary  for  servant,  injured  by  falling 
of  barrel  from  unrailed  platform,  to  show  force  that  set  it  in  motion;  Farrell  v. 
Eastern  Machinery  Co.  77  Conn.  492.  68  L.R.A.  242,  107  Am.  St.  Rep.  45,  59  Atl. 
611,  holding  an  employer  was  liable  for  the  death  of  an  employee  through  the 
negligence  of  one  in  charge  of  the  installation  of  elevators  who  negligently  sup- 
plied defective  material  from  the  supply  kept  by  defendant  for  that  purpose: 
Missouri  Malleable  Iron  Co.  v.  Dillon.  206  111.  157,  69  X'.  E.  12.  holding  defendant 
liable  for  injuries  to  an  employee  by  the  falling  of  a  hot  iron  casting  from  a 
truck,  one  of  the  wheels  of  which  had  dropped  into  a  hole  in  the  floor  where  the 
foreman  in  charge  was  also  negligent  in  the  way  he  ordered  its  removal;  Siegel, 
•.C.  &  Co.  v.  Trcka,  218  111.  5G3,  2  L.R.A. (X.S.)  650,  109  Am.  St.  Rep.  302,  7:>  X.  K. 


4  L.R.A.  721]  L.  R.  A.  CASES  AS  AUTHORITIES.  756 

1053,  Affirming  115  111.  App.  59,  holding  a  master  is  not  excused  from  liability  for 
an  injury  to  servant  through  the  act  of  a  fellow  servant  where  the  accident 
would  not  have  happened  but  for  the  negligent  construction  of  an  elevator; 
Chicago  &  A.  R.  Co.  v.  Averill,  224  111.  521,  79  X.  E.  654,  holding  a  railroad 
company  was  not  relieved  from  liability  for  an  injury  to  passenger  on  a  street 
car  due  to  a  misunderstanding  of  signals  between  the  motorman  and  conductor 
of  street  car  where  it  would  not  have  happened  if  defendant  company  maintained 
gates  at  street  crossings  as  required  by  ordinance;  Ford  v.  Hine  Bros.  Co.  237  111. 
469,  86  X.  E.'  1051,  holding  defendant  was  not  excused  from  liability  to  conductor 
of  a  street  car  for  injury  by  reason  of  the  mismanagement  of  a  team,  by  negli- 
gence of  motorman  in  failing  to  let  the  wagon  pass;  Flanagan  v.  Wells  Bros.  Co. 
237  111.  87,  127  Am.  St.  Rep.  315,  86  X.  E.  609,  Affirming  139  111.  App.  241,  refus- 
ing an  instruction  that  defendants  were  not  liable  for  the  consequences  of  their 
negligent  act  if  the  negligence  of  a  third  party  concurred  in  the  injury;  Strauhal 
v.  Asiatic  S.  S.  Co.  48  Or.  107,  85  Pac.  230,  holding  a  steamship  company  might 
be  held  liable  for  the  death  of  an  employee  caused  by  a  barge  which  they  had 
chartered  turning  over  because  of  its  defective  condition  notwithstanding  the 
owners  were  also  liable  for  furnishing  a  barge  in  such  a  condition;  Elgin,  A. 
&  S.  Traction  Co.  v.  Wilson,  120  111.  App.  373;  Byron  Teleph.  Co.  v.  Sheets,  122 
111.  App.  8;  Chicago  v.  Reid,  141  111.  App.  526;  Illinois  C.  R.  Co.  v.  Siler,  229  111. 
397,  15  L.R.A.(X.S.)  823,  82  X.  E.  362,  11  A.  &  E.  Ann.  Cas.  368,— on  effect  of 
concurring  negligence  of  a  third  party  on  liability  of  one  sued  for  negligently 
causing  an  injury;  Indianapolis  Union  R.  Co.  v.  Waddington,  169  Ind.  459,  82° 
N.  E.  1030,  on  right  to  maintain  a  joint  action  against  parties  whose  concurrent 
negligence  causes  an  injury. 

Cited  in  footnote  to  Horrigan  v.  Clarksburg,  5  L.  R.  A.  609,  which  denies 
recovery  for  injury  on  defective  highway  where  negligence  in  using  defective 
sleigh  concurred. 

Cited  in  notes  (17  L.  R.  A.  35)  on  effect  of  concurring  negligence  of  third 
person  on  liability  of  one  sued  for  negligently  causing  injury;  (6  L.  R.  A.  143) 
on  imputing  one  person's  negligence  to  another;  (20  L.R.A.(X.S.)  742)  on  liability 
of  municipality  for  defects  or  obstructions  in  streets;  (106  Am.  St.  Rep.  608)  on 
liability  of  initial  carrier  for  torts  or  negligence  of  connecting  lines. 
Liability  of  master  for  neglig-ence  of  servant. 

Cited  in  McGinnis  v.  Chicago,  R.  I.  &  P.  R.  Co.  200  Mo.  360..  9  L.R.A.iX.S.) 
880,  118  Am.  St.  Rep.  661,  98  S.  W.  590,  9  A.  &  E.  Ann.  Cas.  656,  on  when  em- 
ployer liable  for  the  negligent  act  of  an  employee. 

Annotation  cited  in  Southern  R.  Co.  v.  Harbin,  135  Ga,  125,  30  L.R.A.  (X.S.) 
408,  68  S.  E.  1103,  21  Ann.  Cas.  1011,  holding  that  verdict  against  railroad  and 
for  engineer,  in  action  against  both  for  negligence,  will  be  set  aside. 
Proximate  cause  of  injury. 

Cited  in  Metropolitan  Acci.  Asso.  v.  Taylor,  71  111.  App.  139,  holding  voluntary- 
exposure  the  proximate  cause  of  death  of  insured  by  locomotive  while  on  track; 
North  Chicago  Street  R.  Co.  v.  Dudgeon,  184  111.  488,  56  N.  E.  796,  Affirming 
83  111.  App.  533,  holding  pile  of  stones  left  beside  track  was  proximate  cause  of 
injury;  Chicago  City  R.  Co.  v.  O'Donnell,  109  111.  App.  622,  holding  conductor's 
threats  frightening  boy  off  car  so  that  he  was  run  over  by  another  car,  efficient 
cause  of  accident;  Louisville  &  N.  R.  Co.  v.  Morgan,  165  Ala.  421,  51  So.  827, 
holding  that  want  of  railing  was  proximate  cause,  where  shying  of  inner  mule 
pushed  wagon  off  platform;  Obermeyer  v.  F.  H.  Logeman  Chair  Mfg.  Co.  221)  Mo. 
110,  129  S.  W.  209.  Affirming  120  Mo.  App.  74,  96  S.  W.  673,  holding  defendant 
was  liable  where  an  employee  while  stepping  back  to  avoid  another  employee  who 
had  stepped  on  his  foot,  was  injured  because  of  the  negligent  construction  of  an 


757  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  724 

elevator;  Miller  v.  United  R.  Co.  155  Mo.  App.  541,  134  S.  W.  1045,  holding  owner 
of  team  leaving  it  unhitched  liable  for  injury  to  passenger  on  car  with  which  it 
collided,  though  motorman  could  have  prevented  collision;  Harton  v.  Forest  City 
Teleph.  Co.  141  X.  C.  461,  54  S.  E.  299,  holding  defendant  company  allowing 
a  telephone  pole  to  remain  in  such  a  defective  condition  that  it  fell  across  a  road 
was  liable  where  after  being  replaced  by  a  traveler  it  again  fell  killing  plaintiffs 
intestate;  Forney  v.  Melvin,  130  111.  App.  205,  holding  defendant  village  was  liable 
for  injury  to  plaintiff  by  a  fall  due  to  her  slipping  on  a  side  walk  and  catching 
her  foot  in  a  hole  negligently  allowed  to  remain  in  sidewalk;  Seith  v.  Common- 
wealth Electric  Co.  241  111.  261,  24  L.R.A.(N.S-)  982,  132  Am.  St.  Rep.  204,  89 
N.  E.  425,  on  it  not  being  necessary  that  negligent  act  be  the  sole  cause  in  order 
to  be  the  proximate  cause;  Miller  v.  Kelly  Coal  Co.  145  111.  App.  454,  denning 
proximate  cause. 

Cited  in  notes  (8  L.R.A.  84)  on  intervening  agency  breaking  causal  connection; 
(9  L.R.A.(X.S.)  549)  on  obstructions  in  highway  as  proximate  cause  of  injury 
notwithstanding  intervening  cause;  (18  L.R.A. (X.S.)  1138)  on  what  injuries  may 
be  deemed  proximately  caused  by  absence  of  guard  rail  in  highway;  (36  Am.  St. 
Rep.  845)  on  proximate  and  remote  cause. 
Contribution  among  joint  wrong-doers. 

Cited  in  Eaton  &  P.  Co.  v.  Mississippi  Valley  Trust  Co.  123  Mo.  App.  130,  100 
S.  W.  551,  on  liability  for  contribution  among  joint  wrong-doers. 

4  L.  R.  A.  724.  JEXSEX  v.  UNION  P.  R.  CO.  6  Utah,  253,  21  Pac.  994. 
Dae  process  of  law. 

Cited  in  Schenck  v.  Union  P.  R.  Co.  5  Wyo.  433,  40  Pac.  840,  holding  statute 
in  relation  to  killing  stock  by  engines  and  cars  unconstitutional  in  rendering 
railway  company  liable  in  absence  of  negligence;  Denver  &  R.  G.  R.  Co.  v.  Out- 
calt,  2  Colo.  App.  405,  31  Pac.  177,.  holding  statute  fixing  upon  railroad  compa- 
nies absolute  liability  for  stock  killed  or  injured  and  authorizing  recovery  oi 
double  appraised  value,  with  attorney's  fee,  upon  failure  to  pay  within  time 
prescribed,  unconstitutional;  Ives  v.  South  Buffalo  R.  Co.  201  X.  Y.  298,  34 
L.R.A.(X.S.)  175,  94  X.  E.  431,  Ann.  Cas.  1912  B,  156,  holding  that  statute  making 
employer  liable  for  injury  without  his  fault,  unless  it  was  caused  by  wilful  mis- 
conduct of  employee,  is  void. 

Cited  in  footnotes  to  Wadsworth  v.  Union  P.  R.  Co.  23  L.  R.  A.  812,  which 
holds  unconstitutional  act  creating  absolute  liability  for  stock  killed  or  injured 
by  trains;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  17  L.  R.  A.  286.  which  holds  valid 
act  authorizing  attorneys'  fees  against  railroad  corporations  in  suits  on  claims; 
Carleton  v.  Rugg,  5  L.  R.  A.  193,  which  holds  statute  authorizing  injunction 
against  liquor  nuisance,  does  not  unlawfully  deprive  of  property  or  privileges. 

Cited  in  notes  (13  L.  R.  A.  68,  11  L.  R.  A.  225,  5  L.  R.  A.  359)  on  due  process 
of  law;  (25  L.  R.  A.  162)  on  constitutionality  of  statutes  making  railroad 
companies  absolutely  liable  for  damage  by  fires  set  out  by  them  or  for  stock 
killed  by  them  irrespective  of  negligence;  (31  L.R.A.(X.S.)  862)  on  constitu- 
tionality of  statutes  requiring  railroad  to  fence  tracks  and  build  cattle  guards; 
(62  Am.  St.  Rep.  170)  on  protection  of  corporations  from  special  and  hostile  legis- 
lation. 
Joinder  of  causes  of  action. 

Cited  in  Oberndorfer  v.  Mover,  30  Utah,  332,  84  Pac.  1102,  denying  a  motion 
to  compel  plaintiff  to  elect  between  two  counts,  one  on  an  open  account  and  one 
for  an  account  stated  for  the  same  cause  of  action. 


4  L.R.A.  726]  L.  R.  A.  CASES  AS  AUTHORITIES.  758 

4  L.  R.  A.  726,  Re  KANAKA  XI AN,  6  Utah,  259,  21  Pac.  993. 
Who  are   capable  of   naturalization. 

Cited  in  Re  Yamashita,  30  Wash.  237,  59  L.  R.  A.  672,  footnote,  p.  671,  deny- 
ing right  of  Japanese  to  become  citizens  of  United  States;  Re  San  C.  Po,  7  Misc. 
472,  28  N.  Y.  Supp.  383,  holding  Burmese  entitled  to  United  States  citizenship; 
State  ex  rel.  United  States  v.  District  Ct.  107  Minn.  450,  22  L.R.A.(N.S.)  1042r 
120  JJ".  W.  898,  holding  an  applicant  otherwise  qualified  for  naturalization  should 
not  necessarily  be  denied  the  right  because  he  has  no  accurate  knowledge  of  the 
Federal  Constitution  and  form  of  government;  Re  Halladjian,  174  Fed.  844,  hold- 
ing Armenians  entitled  to  naturalization. 

Cited  in  note  (22  L.R.A. (N.S.)  1042)  on  test  of  intelligence  in  naturalization 
proceedings. 

4  L.  R.  A.  728,  LEONARD  v.  POOLE,  114  N.  Y.  371,  11  Am.  St.  Rep.  667,  21 

N.  E.  707. 
Combinations  in  restraint  of  trade. 

Cited  in  People  v.  Sheldon,  66  Hun,  593,  21  N.  Y.  Supp.  859,  holding  associa- 
tion of  coal  dealers  to  regulate  prices,  though  restricted  to  reasonable  rates,  il- 
legal; People  v.  Milk  Exchange,  145  N.  Y.  274,  27  L.  R.  A.  441,  45  Am.  St.  Rep. 
609,  39  N.  E.  1062,  holding  corporation  fixing  price  of  milk  sold  on  commission 
to  stockholders  combination  in  restraint  of  trade;  United  States  v.  Addyston 
Pipe  &  Steel  Co.  46  L.  R.  A.  134,  29  C.  C.  A.  157,  54  U.  S.  App.  723,  85  Fed!  288, 
holding  agreement  between  pipe  companies  restricting  competition  and  fixing 
prices  illegal;  National  Harrow  Co.  v.  E.  Bement  &  Sons,  21  App.  Div.  295,  47 
N.  Y.  Supp.  462,  holding  contract  by  corporation  controlling  patents  limiting 
manufacture  by  licensees  and  fixing  prices,  invalid;  De  Witt  Wire-Cloth  Co.  v. 
New  Jersey  Wire-Cloth  Co.  16  Daly,  532,  14  N.  Y.  Supp.  277,  holding  agreement 
to  regulate  price  of  wirecloth  illegal ;  Cummings  v.  Union  Blue  Stone  Co.  164 
N.  Y.  405,  52  L.  R.  A.  263,  79  Am.  St.  Rep.  655,  58  N.  E.  525,  holding  contract 
by  principal  producers  of  blue  stone  to  sell  only  through  common  agent  to  main- 
tain prices,  illegal ;  John  D.  Park  &  Sons  Co.  v.  National  Wholesale  Druggists' 
Asso.  175  N.  Y.  36,  62  L.  R.  A,  647,  96  Am.  St.  Rep.  578,  67  N.  E.  136  (dissent- 
ing opinion),  majority  upholding  agreement  between  manufacturers  of  medicines 
and  association  of  wholesale  dealers  for  maintenance  of  uniform  jobbing  and 
selling  price;  Southard  v.  George  W.  Jump  Co.  43  Misc.  170,  88  N.  Y.  Saipp.. 
317,  holding  combination  to  prevent  competition  at  private  sale  not  illegal;  People 
v.  Klaw,  55  Misc.  91,  106  N.  Y.  Supp.  341,  holding  a  contract  for  the  manage- 
ment of  theatres  by  which  parties  controlling  theatres  agree  not  to  book  rival 
attractions  and  that  certain  attractions  are  to  play  or  not  to  play  in  certain 
localities  at  certain  times  was  not  a  contract  in  restraint  of  trade. 

Cited  in  footnotes  to  Herriman  v.  Menzies,  35  L.  R.  A.  318,  which  sustains 
association  of  master  stevedores  fixing  minimum  prices  with  stipulation  against 
unauthorized  discounts;  State  v.  Phipps,  18  L.  R.  A.  658,  Avhich  holds  combina- 
tion by  foreign  companies  to  increase  rates  of  insurance  unlawful. 

Cited  in  note    (13  L.  R.  A.  770)    on  nature  of  monopolies. 
Validity  of  anti-monopoly  latva. 

Cited  in  Re  Davies,  168  N.  Y.'  101,  56  L.  R.  A.  860,  61  N.  E.  118,  holding 
anti-monopoly  act  relating  to  commodities  in  common  use  valid  as  codification 
of  common  law;  State  ex  rel.  Durner  v.  Huegin,  110  Wis.  253,  62  L.  R.  A.  742, 
S5  N.  W.  1046,  holding  contracts  restricting  competition  void  at  common  law 
and  subject  to  legislative  exercise  of  police  power. 
Action*  based  on  illegal  contracts. 

Cited  in  Judd  v.  Harrington,  139  N.  Y.  110,  34  N.  E.  790,  holding  courts  wilL 


759  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  732 

not  enforce  contract  to  suppress  competition;  Unckles  v.  Colgate,  148  N.  Y. 
535,  43  X.  E.  59,  Aiiinning  72  Hun,  12,5,  25  N.  Y.  Supp.  672,  holding  equity  will 
not  distribute  assets  of  unlawful  combination;  Texas  Standard  Oil  Co.  v.  Adoue, 
83  Tex.  663,  15  L.  R.  A.  603,  29  Am.  St.  Rep.  690,  19  S.  W.  274,  holding  action 
not  maintainable  upon  contract  between  cotton-oil  mills  fixing  buying  and  sell- 
ing prices;  Gray  v.  Oxnard  Bros.  Co.  59  Hun,  393,  13  X.  Y.  Supp.  86,  Affirming 
31  N.  Y.  S.  R.  971,  11  N.  Y.  Supp.  118,  holding  receiver  of  corporation  dissolved 
for  participation  in  illegal  combination  cannot  enforce  accounting;  McMullen  v. 
Hoffman,  174  U.  S.  655,  43  L.  ed.  1123,  19  Sup.  Ct.  Rep.  839,  Affirming  45  L.  R.  A. 
413,  28  C.  C.  A.  182,  48  U.  S.  App.  596,  83  Fed.  376,  holding  action  not  maintain- 
able on  agreement  to  share  profits  on  public  contract  obtained  by  collusive  bid- 
ding; Winchester  Electric  Light  Co.  v.  Veal,  145  Ind.  511,  41  N.  E.  334,  holding 
action  not  maintainable  by  officer  loaning  public  funds  in  violation  of  statute; 
Work  v.  American  Mut.  L.  Ins.  Co.  31  Ind.  App.  157,  67  X.  E.  458,  holding  pre- 
miums paid  on  illegal  policy  not  recoverable;  Sheppey  v.  Stevens,  185  Fed.  153, 
sustaining  demurrer  to  complaint  on  agreement  between  heirs  of  wealthy  man 
to  endeavor  to  break-  off  his  improper  relations  with  others  and  to  share  equally 
whatever  is  left  by  him  to  either;  Sirkin  v.  Fourteenth  Street  Store,  124  App. 
Div.  390,  108  N.  Y.  Supp.  830,  holding  plaintiff  could  not  maintain  an  action  on  a 
contract  which  was  obtained  by  secretly  bribing  defendant's  agents;  Ruemmeli 
v.  Cravens,  13  Okla.  355,  74  Pac.  908,  holding  plaintiff  who  had  entered  into  a 
contract  with  defendant  for  the  sale  of  liquor  at  wholesale  in  a  certain  territory 
without  procurring  the  proper  license  could  not  maintain  an  action  on  such  con- 
tract to  recover  money  received  by  defendant  for  his  benefit. 

Cited  in  notes  (6  L.  R.  A.  615,  8  L.  R.  A.  501)  on  invalidity  of  contracts  against 
public  policy;  (16  Am.  St.  Rep.  699)  on  enforcement  of  illegal  contracts;  (99 
Am.  St.  Rep.  327;  23  L.R.A. (X.S.)  485)  on  accounting  between  members  of  il- 
legal or  void  partnership,  or  one  engaged  in  illegal  business. 

Distinguished  in  Irwin  v.  Curie,  171  X.  Y.  415,  58  L.  R.  A.  832,  64  X.  E.  161, 
Reversing  56  App.  Div.  516,  67  X.  Y.  Supp.  380,  holding  action  maintainable 
against  attorney  on  agreement  to  divide  fees  on  business  brought  in;  Scott  v. 
Wiswall,  42  L.  R.  A.  86,  30  C.  C.  A.  341,  57  U.  S.  App.  179,  86  Fed.  673,  holding 
tug  owner's  membership  of  unlawful  combination  does  not  prevent  recovery  of 
reasonable  towage  charges. 

Limited  in  Pullman's  Palace  Car  Co.  v.  Central  Transp.  Co.   171   U.   S.   151, 
43  L.  ed.  114,  18  Sup.  Ct.  Rep.  808,  holding  party  disaffirming  illegal  contract  may 
recover  property  delivered  thereunder. 
Illegal  intent  of  complainant  as  defense  to  prosecution. 

Distinguished  in  People  v.  McHale,  39  N.  Y.  S.  R.  761,  15  N.  Y.  Supp.  496, 
holding  desire  of  prosecutrix  to  conceal  ownership  of  money  from  poor  authori- 
ties no  defense  to  prosecution  for  larceny. 

4  L.  R,  A.  732,  FEXKHAUSEX  v.  FELLOWS,  20  Xev.  312,  21  Pac.  88ft. 
Stoppage   in   trausitn. 

Cited  in  footnotes  to  Johnson  v.  Eveleth,  48  L.  R.  A.  50,  which  holds  logs  sul- 
ject  to  stoppage  in  Iransitu  while  being  driven  down  river  by  log-driving  com- 
pany: Jeffris  v.  Fitchburg  R.  Co.  33  L.  R.  A.  351,  which  holds  stoppage  in  transitu 
not  defeated  by  delivery  of  part  of  consignment;  Brewer  Lumber  Co.  v.  Boston  &  A. 
R.  Co.  54  L.  R.  A.  435,  which  holds  right  of  stoppage  in  transitu  not  lost  by  car- 
rier's storage  for  failure  to  unload  in  time  while  freight  charges  unpaid. 

Cited  in  note  (11  L,  R,  A.  347)  on  right  of  stoppage  in  transitu. 


4  L.R.A.  732]  L.  E.  A.  CASES  AS  AUTHORITIES.  760 

Vendor's  lien. 

Cited  in  footnote  to  Conrad  v.  Fisher,  8  L.  R.  A.  147,  which  holds  lien  for  goods 
sold,  lost  by  not  asserting  in  time. 

4  L.  R.  A.  734,  ALLEN  v.  JOHNSON,  76  Mich.  31,  42  N.  W.  1075. 
Contributory   negligence. 

Cited  in  Hadley  v.  Lake  Erie  &  W.  R.  Co.  21  Ind.  App.  686,  53  N.  E.  337,  holding 
one  injured  by  overturning  of  wagon  placed  against  car  knowing  it  would  soon  be 
moved  cannot  recover. 

Cited  in  note  (9  L.  R.  A.  643)   on  contributory  negligence  defeating  recovery. 
Landlord's  liability  for  defect  in  premises. 

Cited  in  note  (23  L.  R.  A.  158)  on  liability  of  landlord  as  to  condition  of  part 
of  premises  not  controlled  by  tenant. 

4  L.  R.  A.  735,  THEOBOLD  v.  LOUISVILLE,  N.  0.  &  T.  R.  Co.  66  Miss.  279,  14 

Am.  St.  Rep.  564,  6  So.  230. 
Streets,    what    use    entitles   abutting-    owner    to    compensation. 

Cited  in  Kane  v.  New  York  Elev.  R.  Co.  125  N.  Y.  180,  11  L.  R.  A.  644,  26  N.  E. 
278,  holding  elevated  railroad  in  street  interfering  with  light,  air,  and  access  en- 
titles abutting  owner  to  compensation;  White  v.  Northwestern  N.  C.  R.  Co.  113 
X.  C.  616,  22  L.  R.  A.  629,  37  Am.  St.  Rep.  639,  18  S.  E.  330,  and  Alabama  &  V.  R. 
Co.  v.  Bloom,  71  Miss.  252,  15  So.  72,  holding  railroad  constructing  track  in  street 
must  compensate  abutting  owners,  whether  fee  in  public  or  not;  Dooly  Block  v. 
Salt  Lake  Rapid  Transit  Co.  9  Utah,  42,  24  L.  R..  A.  613,  33  Pac.  229.  holding 
abutting  owners  have  easement  in  street  irrespective  of  ownership  of  fee;  Stowers 
v.  Postal  Teleg.  Cable  Co.  68  Miss.  563,  12  L.  R.  A.  864,  24  Am.  St.  Rep.  290,  9  So. 
356,  holding  abutting  owner  entitled  to  compensation  for  erection  of  telegraph 
line,  though  public  owns  fee  of  street;  Donovan  v.  Allert,  11  N.  D.  299,  58  L.R.A. 
781,  95  Am.  St.  Rep.  720,  91  N.  W.  441,  holding  abutting  owner  entitled  to 
compensation  for  use  of  street  for  telephone  poles;  Gulf  Coast  Ice  &  Mfg.  Co. 
v.  Bowers,  80  Miss.  582,  32  So.  133,  holding  abutting  owner  not  entitled  to 
compensation  for  poles  and  wires  for  street  lighting;  Miller  v.  Detroit,  Y.  & 
A.  A.  R.  Co.  125  Mich.  175,  51  L.R.A.  958,  84  Am.  St.  Rep.  569,  84  N.  W. 
49  (dissenting  opinion),  majority  holding  street  railway  may,  upon  notice  and 
opportunity  to  abutting  owner  to  remove,  remove  trees  from  highway  without 
compensation ;  Seaboard  Air  Line  R.  Co.  v.  Southern  Invest.  Co.  53  Fla. 
843,  44  So.  351,  13  A.  &  E.  Ann.  Cas.  18,  holding  abutting  owner  entitled  to 
compensation  where  steam  railroad  is  constructed  in  the  street;  Ridgway  v.  Os- 
ceola,  139  Iowa,  595,  117  N.  W.  974,  holding  abutting  owner  entitled  to  com- 
pensation for  injury  sustained  by  the  vacation  of  a  street  and  alley;  YTazoo  & 
M.  Valley  R.  Co.  v.  Lefoldt,  87  Miss.  320,  39  So.  459,  holding  street  railway  liable 
to  abutting  owner  for  damages  caused  by  its  raising  the  grade  of  the  street; 
Slaughter  v.  Meridian  Light  &  R.  Co.  95  Miss.  273,  25  L.R.A.(N.S.)  1272,  48  So. 
6,  holding  that  street  railway  in  street  is  such  additional  burden  as  entitles 
abutting  owner  to  compensation;  Duyckinck  v.  New  York  Elev.  R.  Co.  3  Silv.  Ct. 
App.  323,  26  N.  E.  278,  holding  abutting  owner  entitled  to  compensation  for 
injuries  to  his  property  from  the  construction  of  an  elevated  railway  in  the 
street;  Foster  Lumber  Co.  v.  Arkansas  Valley  &  W.  R.  Co.  20  Okla.  600,  30 
L.R.A.  (N.S.)  240,  100  Pac.  110,  holding  adjoining  owner  entitled  to  compensa- 
tion where  access  to  his  property  has  been  interferred  with  by  the  building  of  a 
railway  in  the  street;  South  Bound  R.  Co.  v.  Burton,  67  S.  C.  523,  46  S.  E.  340, 
holding  abutting  owner  entitled  to  compensation  where  steam  railway  is  con- 
structed in  the  street,  though  such  owner  has  no  fee  in  the  street  v  Hazlehurst  v. 


761  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  738 

Mayes,  84  Miss.  11,  64  L.R.A.  806,  36  So.  33,  holding  abutting  owner  entitled  to 
compensation  for  additional  servitude  in  street  whether  or  not  he  owns  the  fee 
in  the  street;  Bronson  v.  Albion  Teleph.  Co.  67  Xeb.  115,  60  L.R.A.  428,  93  N.  W. 
201,  2  A.  &  E.  Ann.  Cas.  639,  holding  ownership  of  fee  to  be  immaterial  on  ques- 
tion of  compensation  to  abutting  owner;  Southern  Bell  Teleph.  &  Teleg.  Co.  v. 
Mobile,  162  Fed.  530,  holding  that  right  granted  to  telephone  company  to  con- 
struct telephone  line  in  the  street,  does  not  relieve  him  from  duty  to  give  com- 
pensation to  adjoining  owners;  Louisville  &  N.  R.  Co.  v.  Mobile,  J.  &  K.  C.  R.  Co. 
124  Ala.  166,  26  So.  895,  holding  that  the  unauthorized  construction  of  a  railroad 
in  a  street  is  a  nuisance  which  may  be  enjoined. 

Cited  in  notes  (7  L.  R.  A.  548)  on  ownership  of  fee  in  streets;  (17  L.  R.  A.  476) 
on  what  use  of  street  or  highway  constitutes  additional  burden;  (14  L.  R.  A.  383) 
on  injury  to  abutter's  easements  by  railroad  in  street;  (61  L.R.A.  677)  on  use 
of  streets  for  drainage;  (25  Am.  St.  Rep.  479;  27  Am.  St.  Rep.  402;  31  Am.  St. 
Rep.  733;  35  Am.  St.  Rep.  536;  34  L.  ed.  U.  S.  355;  36  L.R.A.(X.S.)  733,  764) 
on  abutter's  right  to  compensation  for  railroads  in  streets. 

Disapproved  in  Garrett  v.  Lake  Roland  Elev.  R.  Co.  79  Md.  281,  24  L.  R.  A.  397, 
29  Atl.  830,  holding  erection  in  street  of  elevated  railway  abutment  not  taking  of 
abutting  owner's  property. 
What  constitutes  taking:  for  public  use. 

Cited  in  Richardson  v.  Mississippi  Levee  Comrs.  77  Miss.  536,  26  So.  963,  rais- 
ing, without  deciding  question  whether  obstruction  of  drainage  by  public  levee 
entitles  owner  to  compensation. 

Cited  in  notes    (15   L.R.A. (X.S.)    53)    on   cutting  off  access   to  highway   as  a 
taking;    (16  Am.  St.  Rep.  613)  on  what  is  taking  of  property  for  public  use. 
Condemnation Measure   of   damages. 

Cited  in  note  (8  L.  R.  A.  330)  on  measure  of  damages  for  land  condemned  for 
railroad  purposes. 

4  L.  R.  A.  738,  MIDDLEDITCH  v.  WILLIAMS,  45  N.  J.  Eq.  726,  17  Atl.  826. 

Second  appeal,  47  X'.  J.  Eq.  585,  21  Atl.  290. 
Mental  capacity;   insane  delusions. 

Cited  in  Re  Kendrick,  130  Cal.  365,  62  Pac.  605,  holding  temporary  hallucina- 
tions or  unfounded  dislikes  not  insane  delusions;  Re  Scott,  128  Cal.  62,  60  Pac- 
527.  holding  irrational  inference  or  unreasonable  prejudice  not  insane  delusion; 
McClary  v.  Stull,  44  Xeb.  189,  62  N.  W.  501,  holding  belief  in  spiritualism  does- 
not  show  want  of  testamentary  capacity;  Potter  v.  Jones,  20  Or.  248,  12  L.  R.  A. 
165,  25  Pac.  769,  holding  erroneous  belief  in  wife's  infidelity  does  not  incapacitate 
testator;  Re  Henry,  18  Misc.  154,  41  X.  Y.  Supp.  1096,  holding  delusion  not  influ- 
encing provisions  of  will  does  not  incapacitate  testator;  Smith  v.  Smith.  48  X.  J. 
Eq.  570,  25  Atl.  11,  holding  erroneous  conclusion  as  to  ability  to  procreate  children 
not  insane  delusion;  Kern  v.  Kern,  51  X.  J.  Eq.  578,  26  Atl.  837,  holding  mental 
weakness  with  delusions  not  influencing  action,  no  ground  for  annulling  mar- 
riage; Re  Kauffele,  32  Pittsb.  L.  J.  X.  S.  347,  holding  belief  in  wife's  infidelity 
founded  upon  reports,  not  an  insane  delusion;  Wait  v.  Westfall,  161  Ind.  665,  68 
X.  E.  271,  holding  mere  delusion  as  to  ability  to  locate  hidden  treasure,  insuffi- 
cient to  invalidate  will;  Riddle  v.  Gibson,  29  App.  D.  C.  249,  holding  resentment 
against  relatives  for  neglect  not  evidence  of  insane  delusion;  Owen  v.  Crum- 
baugh,  228  111.  401,  119  Am.  St.  Rep.  442,  81  X.  E.  1044,  10  A.  &  E.  Ann.  Cas.  606, 
holding  that  belief  in  spiritualism  is  not  an  insane  delusion;  Friedersdorf  v. 
Lacy,  173  Ind.  433.  90  X.  E.  766,  holding  that  fear  of  being  poisoned  by  certain 
persons  is  not  insane  delusion;  Henderson  v.  Jackson,  138  Iowa,  331,  26  L.R.A. 
(X.S.)  481,  111  X.  W.  821,  holding  belief  or  hallucination  that  premise  to  husband, 


i  L.R.A.  738]  L.  R.  A.  CASES  AS  AUTHORITIES.  762 

•deceased  some  years  before  was  binding  upon  her  insufficient  to  show  testamen- 
tary incapacity  or  undue  influence;  Gesell  v.  Baugher,  100  Md.  686,  60  Atl.  4S1, 
holding  that  insane  delusions  as  to  particular  persons  or  things  does  not  invali- 
date a  will  where  not  affected  thereby;  Taylor  v.  McClintock,  87  Ark.  278,  112 
S.  \V.  40,">.  as  denning  insane  delusions. 

Cited  in  notes  (37  L.  R.  A.  262)  on  what  are  insane  delusions;  (12  L.  R.  A.  161, 
162)  on  testamentary  capacity  as  affected  by  insane  delusion;  (16  L.  R.  A.  678) 
on  belief  in  spiritualism,  witchcraft,  etc.,  as  affecting  capacity  to  make  will  or 
deed;  (15  L.R.A.(X.S.)  674)  on  belief  in  spiritualism  as  affecting  testamentary 
-capacity;  (63  Am.  St.  Rep.  83,  87,  93)  on  insane  delusions. 

Distinguished  in  Bohler  v.  Hicks,  120  Ga.  804,  48  S.  E.  306;   Snell  v.  Weldon, 
243  111.  519,  90  X.  E.  1061, — holding  that  belief  based  on  facts  though  erroneous 
and  illogical  is  not  an  insane  delusion. 
When   question   for  jury. 

Cited  in  Steimkuehler  v.  Wempner,  169  Ind.  165,  15  L.R.A.(N.S.)  679,  81  N.  E. 
482,  holding  that  where  will  was  affected  by  "spiritualistic  revelations"  question 
of  testamentary  capacity  was  for  jury;  Johnson  v.  Johnson,  105  Md.  88,  121 
Am.  St.  Rep.  570,  65  Atl.  918,  holding  testamentary  capacity  to  be  question  for 
jury  where  insane  delusion  as  to  wife's  chastity  appeared  from  the  evidence. 
Testator's  purpose  not  defeated  by  injustice  of  will. 

Cited  in  Smith  v.  Smith,  48  N.  J.  Eq.  591,  25  Atl.  11,  holding  courts  will  up- 
hold will  though  unjust,  of  competent  testator;  Morgan  v.  Morgan,  30  App.  D.  C. 
448,  13  A.  &  E.  Ann.  Cas.  1037,  holding  that  fact  of  unnatural  and  unjust  dispo- 
sition made  by  will  can  not  be  submitted  to  jury  in  question  of  testamentary 
incapacity  in  the  absence  of  other  evidence  thereof. 
Evidence  —  Testator's  declarations. 

Cited  in  Re  Gordon,  50  X.  J.  Eq.  425,  26  Atl.  268,  holding  testator's  declara- 
tions not  admissible  upon  issue  of  forgery  of  disputed  will;  Gwin  v.  Gwin,  5 
Idaho,  286,  48  Pac.  295,  holding  declarations  of  testator  after  execution  of  will 
inadmissible  on  question  of  duress  or  undue  influence;  Re  Davis,  73  X.  J.  Eq.  620. 
€8  Atl.  756;  Hobson  v.  Moorman,  115  Tenn.  94.  3  L.R.A.(X.S-)  758,  90  S.  W.  152. 
5  A.  &  E.  Ann.  Cas.  601, — holding  testator's  declarations  admissible  to  show  state 
of  mind  but  not  to  prove  fact  of  undue  influence. 

Cited  in  note  (107  Am.  St.  Rep.  463)  on  admissibility  of  testator's  declarations 
to  sustain,  defeat  or  aid  in  construction  of  alleged  will. 
"Wills Undue  influence. 

Cited  in  footnotes  to  Re  Shell,  53  L.R.A.  387,  which  holds  undue  influence  in 
procuring  will  not  inferable  from  motive  and  opportunity  alone;  Kennedy  v. 
Dickey,  68  L.R.A.  317,  which  holds  will  not  annulled  for  undue  influence  by  hon- 
est and  moderate  intercession  or  persuasion  unaccompanied  with  fraud,  deceit. 
threats,  or  putting  in  fear. 
Spiritualistic  manifestations  as  imposture. 

Cited  in  footnote  to  People  v.  Gilman,  46  L.  R.  A.  218,  which  holds  conspiracy 
to  cheat  by  materializing  seances  and  professed  medium  punishable,  though  obvi- 
ous humbug. 

4  L.  R.  A.  742,  JUDSOX  v.  BESSEMER.  87  Ala.  240,  6  So.  267. 
Constitutional    requirement    that    act    contain    one    subject,    expressed    in 
title. 

Cited  in  State  ex  rel.  Porter  v.  Crook,  126  Ala.  615,  28  So.  745,  and  Hawking 
v.  Roberts,  122  Ala.  143,  27  So.  327,  holding  law  containing  one  subject  valid 
though  two  expressed  in  title;  Alabama  G.  S.  R.  Co.  v.  Reed,  124  Ala.  257,  82  Am. 


763  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  74,3 

:St.  Rep.  166,  27  So.  19,  holding  provisions  of  act  germane  to  general  subject  in 
title,  valid;  Blakey  v.  Montgomery,  ]44  Ala.  485,  39  So.  745,  holding  act  entitled 
"to  authorize  issue  of  bonds  valid  though  body  of  act  provides  for  issue  pursuant 
to  authority  granted  by  election;  Chattanooga  Sav.  Bank  v.  Tanner,  157  Ala.  504. 
47  So.  790,  holding  that  surplusage  in  title  does  not  invalidate  act. 
Constitutional  prohibition  of  revival,  extension,  or  amendment  of  stat- 
nte  by  reference  to  title. 

Cited  in  Maxwell  v.  State,  89  Ala.  158,  7  So.  824,  holding  act  repealed  cannot 
be  revived  without  re-enactment  at  length ;  Miller  v.  Berry,  101  Ala.  534,  14  So. 
4555,  holding  act  extending  operation  of  former  act  by  reference  to  title  unconsti- 
tutional; Leep  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  58  Ark.  444,  23  L.  R.  A.  277,  41 
Am.  St.  Rep.  109,  25  S.  \V.  75  (dissenting  opinion),  majority  holding  constitu- 
tional reservation  of  right  to  alter  corporate  charters  authorizes  amendment  of 
corporation  law  without  reference  thereto. 
Municipal  power  to  issue  gold-coin  bonds. 

Cited  in  Farson  v.  Sinking  Fund  Comrs.  97  Ky.  126,  30  S.  W.  17,  and  Woodruff 
-v.  Mississippi,  162  U.  S.  301,  40  L.  ed.  975,  16  Sup.  Ct.  Rep.  820,  holding,  in  ab- 
sence of  legislative  restriction,  municipal  gold-coin  bonds  valid;  Skinner  v.  Santa 
Rosa,  107  Cal.  473,  29  L.  R.  A.  520,  40  Pac.  742,  holding  provision  making  bonds 
"payable  in  gold  coin  or  lawful  money"  does  not  authorize  bonds  payable  in  gold; 
Murphy  v.  San  Luis  Obispo,  119  Cal.  627,  39  L.  R.  A.  446,  51  Pac.  1085,  holding 
statute  authorizing  bonds  "payable  in  gold  or  lawful  money"  authorizes  bonds 
payable  in  gold;  Carlson  v.  Helena,  39  Mont.  113,  102  Pac.  39,  17  A.  &  E.  Ann. 
<Cas.  1233,  holding  that  city  council  may  issue  bonds  payable  in  "gold  coin"  under 
general  statute  permitting  issue  of  bonds;  Hillsborough  County  v.  Henderson,  45 
Fla.  361,  33  So.  997,  holding  same  as  to  county. 

Cited  in  note  (51  Am,  St.  Rep.  852)  on  municipal  bonds  in  hands  of  bona  fide 
holders. 

Distinguished  in  Burnett  v.  Maloney,  97  Tenn.  709,  34  L.  R.  A.  544,  37  S.  W. 
689,  holding  statute  authorizing  bond  issue  does  not  authorize  bonds  "payable  in 
United  States  gold  coin  of  present  weight  and  fineness." 
Effect    of    unconstitutional    repealing    act. 

Cited  in  Equitable  Guarantee  &  T.  Co.  v.  Donahoe,  3  Penn.  (Del.)  199,  49 
Atl.  372,  holding  section  in  original  law  specifically  repealed  not  left  standing 
because  of  unconstitutional  substitute. 

4  L.  R.  A.  744,  WEEKS  v.  HARRIMAN,  65  N.  H.  91,  23  Am.  St.  Rep.  21,  18  Atl. 

87. 
Conclusiveness  of  foreign  judgment. 

Approved  in  American  Mut.  L.  Ins.  Co.  v.  Mason,  159  Ind.  17,  64  N.  E.  525, 
holding  judgment  of  court  of  other  state  having  jurisdiction,  conclusive  on  merits, 
and  not  open  to  collateral  attack. 

Cited  in  note  (103  Am.  St.  Rep.  321)  on  judgments  of  courts  of  other  states. 

4  L.  R.  A.  745,  PATTERSON  v.  MINNESOTA  MFG.  CO.  41  Minn.  84,  16  Am.  St. 

Rep.  671,  42  N.  W.  926. 
Rights' and    liabilities    of    corporate    officer    or   stockholder. 

Cited  in  McKusick  v.  Seymour,  S.  &  Co.  48  Minn.  169,  50  N.  W.  1114,  holding 
individual  liability  of  stockholder  for  corporate  debts  enforceable  in  sequestration 
proceeding  by  creditor;  John  A.  Roeblings  Sons  Co.  v.  Mode,  1  Penn.  (Del.i  ">:21. 
43  Atl.  4SO,  holding  action  by  creditor  to  hold  corporation  officer  individually 
liable  for  claim,  not  maintainable. 

Cited  in  notes  (8  L.  R.  A.  2.53)   on  personal  liability  of  directors  for  acts  done 


4  L.R.A.  745]  L.  R.  A.  CASES  AS  AUTHORITIES.  76* 

without  authority:    (9  L.  R.  A.  652)   on  liability  of  corporate  directors;    (9  L.  R. 
A.  053)   on  corporations  primarily  interested  and  must  bring  suit;    (22  Am.  St. 
Rep.  530;  74  Am.  St.  Rep.  611)  on  liability  of  corporate  directors  for  torts. 
Penal  nature  of   personal-liability   statute. 

Cited  in  Merchants'  Xat.  Bank  v.  Northwestern  Mfg.  &  Car  Co.  48  Minn.  356, 
51  N.  W.  117,  holding  action  to  enforce  individual  liability  of  corporation  direct- 
ors barred  in  three  years. 
Effect    of   appointment    of    receiver    on    individual    creditor's    i-iuhts. 

Cited  in  Gushing  v.  Perot,  175  Pa.  76,  34  L.  R.  A.  740,  52  Am.  St.  Rep.  835,. 
34  Atl.  447,  holding  receiver  proper  party  to  assert  common  right  of  creditors  for 
common  benefit;  Bailey  v.  O'Neal,  92  Ark.  330,  122  S.  W.  503,  holding  receivers 
of  bank  not  necessary  parties  to  action  by  creditors  against  directors. 

Distinguished  in  Minnesota  Thresher  Mfg.  Co.  v.  Langdon,  44  Minn.  40,  40  X. 
W.   310,   holding   receiver   proper   party  to  bring  action   to   recover   corporation 
capital  wrongfully  withdrawn. 
Rig-fat  of  creditor  to  sue   individually. 

Cited  in  National  New  Haven  Bank  v.  Northwestern  Guaranty  Loan  Co.  61 
Minn.  393,  63  N.  W.  1079,  holding  individual  creditor  specially  damaged  may 
maintain  action  against  unfaithful  corporation  official  to  enforce  personal 
liability;  Swartley  v.  Oak  Leaf  Creamery  Co.  135  Iowa,  578,  113  N.  W.  496, 
holding  that  the  creditors  may  maintain  an  action  against  the  directors  of  the 
corporation  to  enforce  the  personal  liability  for  malfeasance  in  office,  without 
first  exhausting  the  property  of  the  corporation. 
Necessity  of  obtaining:  judgment  against  corporation. 

Cited  in  M.  I.  Wilcox  Cordage  &  Supply  Co.  v.  Mosher,  114  Mich.  66,  72  N.  W. 
117,  holding  creditor  need  not  obtain  judgment  on  claim  against  corporation  be- 
fore enforcing  individual  liability  of  directors  for  default. 
Negligence  of  corporation   director. 

Cited  in  Utley  v.  Hill,  155  Mo.  269,  49  L.  R.  A.  334,  78  Am.  St.  Rep.  569,  55  S, 
W.  1091,  holding  directors  not  liable  to  depositor  under  statute  for  mere  neglect 
to  investigate  affairs  of  bank;  Lewis  v.  Montgomery,  48  111.  App.  287,  holding 
that  while  the  duty  of  a  director  is  to  know  what  the  corporation  is  doing,  and: 
it  is  negligence  for  him  not  to  know,  such  negligence  is  not  such  an  assent  within 
the  meaning  of  the  statute  as  to  make  him  personally  liable. 
Release  of  one  of  several  wrongdoers  from  liability. 

Cited  in  Burns  v.  Womble,  131  N.  C.  177,  42  S.  E.  573,  holding  release  of  sher- 
iff from  liability  for  trespass  releases  plaintiff  in  writ  executed  by  him. 

4  L.  R.  A.  751,  PEOPLE  v.  HANRAHAN,  75  Mich.  611,  42  N.  \\.  1124. 
Title  of  laws. 

Cited  in  People  v.  Wagner,  86  Mich.  597,  13  L.  R.  A.  288,  24  Am.  St.  Rep.  141, 
49  N.  W.  609,  and  Chicago  Union  Traction  Co.  v.  Chicago,  207  111.  547.  09  N.  K. 
849,  holding  constitutional  provisions  relating  to  title  of  laws  not  applicable  to 
city  ordinances. 
Legislature's  power  to  pass  local  laws. 

Cited  in  Davock  v.  Moore,   105  Mich.   132,  63  N.  W.  424.  holding  consent  of 
locality  to  taxation  under  "act  to  establish  board  of  health  for  city  of  Detroit" 
not  necessary. 
Legislative  powers. 

Cited  in  Feek  v.  Bloomingdale  Twp.  82  Mich.  412,  10  L.  R.  A.  75,  47  N.  W.  37. 
holding  Constitution  does  not  prohibit  legislature  from  enacting  or  suspending 
laws  in  particular  localities. 


765  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.H.A.  751 

Cited  in  footnote  to  Sutton  v.  State,  33  L.  R.  A.  589,  which  holds  classification 
of   owunties  according  to   previous   census   without   respect   to  actual   population 
void. 
State    and    local    regulations    covering    the    name    subject. 

Cited  in  St.  Ignace  v.  Snyder,  75  Mich.  652,  42  X.  \\  .  1130,  upholding  city's 
power  to  punish  as  misdemeanors,  statutory  felonies  committed  within  its  limits ; 
People  v.  Detroit  White  Lead  Works,  82  Mich.  479,  9  L.  R.  A.  726,  46  N.  W.  735, 
upholding  city-nuisance  ordinance,  although  state  law  existed  relating  to  same 
subject;  Hood  v.  Von  Glahn,  88  Ga.  408,  14  S.  E.  564,  and  Yankton  v.  Douglass, 
8  S.  D.  447,  66  X.  W.  923,  upholding  local  ordinance  against  "tippling,"  in  ad- 
dition to  state  law  on  same  subject;  State  ex  rel.  Milwaukee  v.  Xewman,  9ti  Wis. 
269,  71  X.  W.  438,  upholding  action  for  penalty  by  city  under  ordinance  against 
gaming  covered  by  state  law;  State  ex  rel.  Cooper  v.  Brazee,  139  Wis.  544,  121 
X.  W.  247,  holding  that  "every  person  convicted  may  appeal"  includes  person 
found  guilty  of  violating  an  ordinance  though  such  prosecutions  are  civil  ac- 
tions; Alma  v.  Clow,  146  Mich.  449,  109  X.  W.  853,  holding  municipal  ordinance 
regulating  peddling  valid  though  general  law  also  covered  the  subject. 

Cited  in  footnotes  to  L'Hote  v.  Xew  Orleans,  44  L.  R.  A.  90,  which  sustains 
ordinance  assigning  limits  beyond  which  houses  of  prostitution  are  prohibited; 
.State  v.  Chauvet,  51  L.  R.  A.  630,  which  holds  covered  wagon  moving  from  place 
to  place  a  house  within  prohibition  against  houses  of  ill  fame;  Ogden  v.  Madison, 
55  L.  R.  A.  506,  which  sustains  city's  power  to  impose  penalty  for  keeping  house 
of  ill  fame  though  misdemeanor  under  state  statute. 

Cited  in  notes  (39  L.R.A.  522)  on  municipal  power  as  to  nuisance  affecting 
public  morals,  decency,  peace,  and  good  order;  (1  L.R.A.(X.S.)  384)  on  power  of 
municipality  to  legislate  on  subjects  covered  by  state  laws;  (110  Am.  St.  Rep. 
153:  17  L.R.A. (X.S.)  57,  70;  31  L.R.A. (X.S.)  703)  on  power  of  municipality  to 
punish  act  also  an  offense  under  state  law. 
Repeal  of  special  laws  by  general  acts  or  amendments  thereof. 

Cited  in  People  ex  rel.  Terry  v.  Keller,  35  App.  Div.  500,  54  X.  Y.  Supp.  1011, 
holding  local  civil-service  act  not  repealed  by  amendment  of  prior  general  law  on 
same  subject;  People  v.  Thompson,  161  Mich.  395,  126  X.  W.  466,  holding  that 
where  the  provisions  of  two  acts  may  stand  as  consistent  the  former  is  not  re- 
pealed by  implication  though  both  may  apply  to  the  same  subject;  Rorabacher  v. 
Xichols,  165  Mich.  129,  130  X.  W.  189,  holding  that  act  as  to  condemnation  by 
cities  of  fourth  class  does  not  repeal  prior  act  applicable  to  all  cities. 

Distinguished  in  People  v.  Furman,  85  Mich.  Ill,  48  X.  W.  169,  holding  general 
liquor   law  of   1887   repealed   all   inconsistent  municipal   ordinances  and  charter 
provisions;  People  v.  Mallette,  79  Mich.  601,  44  X.  W.  962,  holding  general  crim- 
inal law  not  superseded  by  prior  city  charters. 
Right   of   trial   by   jury. 

Cited  in  Detroit  Xat.  Bank  v.  Blodgett,  115  Mich.  171,  73  X.  Wr.  885,  holding 
legislature  cannot  abridge  right  of  court  of  chancery  to  pass  upon  question  of 
fact. 
Cruel    and    unusual    punishments. 

Cited  in  Loeb  v.  Jennings,  133  Ga.  803,  67  S.  E.  101,  holding  that  legislature 
has  power  to  authorize  municipalities  to  sentence  offenders  against  ordinances,  to 
labor. 

Cited  in  note  (35  L.  R.  A.  567)  on  cruel  and  unusual  punishments. 


4  L.R.A.  757]  L.  R.  A.  CASES  AS  AUTHORITIES.  766: 

4  L.  R.  A.  757,  PEOPLE  v.  GIBLIN,  115  N.  Y.  196,  21  N.  E.  1062. 
Proof    under    indictment    with    general    count. 

Cited  in  People  v.  Meyer,  162  N.  Y.  370,  56  N.  E.  758,  and  People  v.  Osmond, 
138  N.  Y.  84,  33  N.  E.  739,  holding  under  common-law  indictment  for  murder 
facts  amounting  to  murder  under  statute  provable;  People  v.  Constantino,  153 
N.  Y.  39,  47  N.  E.  37,  sustaining  conviction  under  indictment  with  common-law 
count  for  murder  in  first  degree;  People  v.  Peck,  67  Hun,  572,  22  N.  Y.  Supp.  576, 
holding  circumstances  of  statutory  crime,  other  than  those  set  forth  in  statute, 
need  not  be  pleaded;  Ex  parte  Dela,  25  Nev.  354,  83  Am.  St.  Rep.  603,  60  Pac.  217, 
holding  under  statute  proof  of  murder  in  perpetration  of  felony  stands  in  lieu  of 
proof  of  malice  aforethought;  Rayburn  v.  State,  69  Ark.  179,  63  S.  W.  350,  hold- 
ing specific  allegation  unnecessary  to  permit  proof  of  murder  in  attempt  to  rob ; 
People  v.  Flanigan,  174  N.  Y.  373,  66  N.  E.  988,  and  People  v.  Sullivan,  173  X.  Y. 
141,  63  L.  R.  A.  382,  93  Am.  St.  Rep.  582,  65  N.  E.  989,  holding  that  under  indict- 
ment for  murder  in  the  first  degree  facts  bringing  crime  within  any  of  the  provi- 
sions of  the  statute  relating  thereto  are  provable;  Chelsey  v.  State,  121  Ga.  342, 
49  S.  E.  258,  holding  indictment  for  murder  sufficient  where  it  charged  that 
the  act  was  done  "unlawfully,  feloniously  and  with  malice  aforethought;"  People 
v.  Schermerhorn,  203  N.  Y.  72,  96  N".  E.  376,  sustaining  conviction  of  murder  in, 
first  degree  under  common-law  indictment,  on  proof  of  homicide  in  commission 
of  felony;  People  v.  Darragh,  141  App.  Div.  412,  126  N.  Y.  Supp.  522,  sustaining 
conviction  of  manslaughter  in  first  degree  of  chauffeur  running  over  boy,  under 
common-law  indictment  for  murder  in  first  degree. 

Cited  in  note  (63  L.  R.  A.  394)   on  homicide  in  the  commission  of  an  unlawful: 
act. 

Cross-examination   of   defendant. 

Cited  in  Territory  v.  O'Hare,  1  N.  D.  45,  44  N.  W.  1003,  holding  not  error  to. 
permit  cross-examination  of  defendant  as  to  antecedents;  People  v.  Barry,  132 
App.  Div.  240,  116  N.  Y.  Supp.  870,  holding  that  where  defendant  in  criminal 
prosecution  testifies  in  his  own  behalf  he  may  be  cross-examined  as  to  any  vicious, 
or  criminal  acts  committed  during  period  covered  by  his  testimony  in  chief;. 
People  v.  Fiori,  123  App.  Div.  183,  108  N.  Y.  Supp.  416,  holding  that  witness  may 
be  cross  examined  as  to  his  associating  with  persona  of  bad  character,  on  ques- 
tion of  credibility;  People  ex  rel.  Walters  v.  Lewis,  111  App.  Div.  377,  97  N.  Y.. 
Supp.  1057,  holding  that  upon  review  of  dismissal  of  police  officer,  he  may  be- 
cross-examined  as  to  his  past  record;  Ritchey  v.  Pakas,  136  App.  Div.  884,  121 
N.  Y.  Supp.  834,  on  purpose  and  scope  of  cross-examination. 

4  L.  R.  A.  759,  ESSEX  SAV.  BANK  v.  MERIDEN  F.  INS.  CO.  57  Conn.  335,  17, 

Atl.  930,  18,Atl.  324. 
Transfer  of   title   avoiding1   policy. 

Cited  in  Brown  v.  Cotton  &  Woolen  Mfrs.  Mut.  Ins.  Co.  156  Mass.  588,  31  N.  E, 
691,   holding  it  immaterial  whether   the   consideration  be  of  substantial  value; 
Pope  v.  Glenn  Falls  Ins.  Co.   136  Ala.  676,  34  So.  29,  holding  mortgagor,  after 
foreclosure  and  expiration  of  time  for  redemption,  without  insurable  interest. 
Indivisibility    of    insurance    contract. 

Cited  in  Southern  F.  Ins.  Co.  v.  Knight,  111  Ga.  634,  52  L.  R.  A.  74,  78  Am.  St. 
Rep.  216,  36  S.  E.  821,  holding  insurance  contract  entire  and  indivisible  where 
premium  is  payable  in  gross;  Benham  v.  Farmers'  Mut.  F.  Ins.  Co.  165  Mich.  418. 
-  L.R.A.(N.S-)  — ,  131  N.  W.  87,  Ann.  Gas.  1912  C,  983,  holding  that  policy  on 
buildings,  stock  and  other  property,  stating  separately  amount  of  insurance  on< 
each  item,  is  divisible. 


767  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  76<V 

Cited  in  footnotes  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holda 
policy  separately  valuing  personalty  and  realty  separable;  Coleman  v.  New  Or- 
leans Ins.  Co.  16  L.  R.  A.  174,  which  holds  policy  for  separate  amounts  on  store- 
house and  goods  severable. 

Cited  in  notes  (9  L.  R.  A.  627)  on  title  or  interest  of  insured  in  fire  policy; 
(19  L.R.A.  211,  214)  on  severability  of  insurance  in  same  policy;  (29  Am.  St. 
Rep.  910)  on  entirety  in  insurance  contract. 

Disapproved  in  Coleman  v.  New  Orleans  Ins.  Co.  49  Ohio  St.  320,  16  L.  R.  A. 
176,  34  Am.  St.  Rep.  565,  31  N.  E.  279,  holding  contract  for  insurance  on  build- 
ing and  stock  premium  in  gross,  severable;  Thurber  v.  Royal  Ins.  Co.  1  Marv. 
(Del.)  257,  40  Atl.  1111,  upholding  policy  as  to  personal  property  though  held 
void  as  to  real  estate,  where  amount  on  each  is  specifically  fixed. 
Insnrable  Interest. 

Cited  in  Pope  v.  Glenn  Falls  Ins.  Co.  136  Ala.  676,  34  So.  29,  holding  that  rights 
under  contract  void  under  statute  of  frauds  confers  no  insurable  interest. 

Cited  in  note   (13  Eng.  Rul.  Cas.  278)   on  insurable  interest  of  agent. 
Presumption  of  insurer's  knowledge. 

Cited  in  note  (27  Am.  St.  Rep.  710)   on  presumption  of  insurer's  knowledge. 

4  L.  R.  A.  764,  GULF,  C.  &  S.  F.  R.  CO.  v.  BLOHN,  73  Tex.  637,  11  S.  W.  867. 
Submission    of   issue   without   evidence. 

Cited  in  Texas  &  P.  R.  Co.  v.  Moore,  8  Tex.  Civ.  App.  296,  27  S.  W.  962,  holding 
submitting  material  issue  to  jury  without  evidence  reversible  error. 
Fellow    servants. 

Cited  in  Hobbs  v.  Atlantic  &  N.  C.  R.  Co.  107  N.  C.  3,  9  L.  R.  A.  839,  12  S.  E, 
124,  holding  brakeman  or  fireman  and  locomotive  engineer,  fellow  servants. 

Cited  in  notes  (5  L.  R.  A.  735)  on  who  are  fellow  servants;  (12  L.  R.  A.  97) 
on  master's  liability  for  negligence  of  coservant  acting  under  authority;  (5Q 
L.  R.  A.  431)  on  what  servants  deemed  in  same  common  employment  apart  from 
statutes,  where  no  questions  as  to  vice  principalship  arise;  (20  Am.  St.  Rep.  368) 
on  who  are  fellow-servants;  (23  Am.  St.  Rep.  166)  on  master's  liability  for  neg- 
ligence of  fellow  servants. 

4  L.  R.  A.  766,  COOPER  v.  STATE,  86  Ala.  610,  11  Am.  St.  Rep.  84,  6  So.  110. 
Evideneej    constitutional    privilege    of    accused. 

Cited  in  Davis  v.  State,  131  Ala.  16,  31  So.  569,  holding  defendant's  refusal 
to  compare  shoes  with  tracks  not  provable;  Pate  v.  State,  150  Ala.  18,  43  So.  343r 
holding  that  defendant,  in  prosecution  for  murder,  testifying  in  his  own  behalf 
may  be  cross-questioned  in  reference  to  the  shooting  of  the  father  of  the  person 
whom  he  was  being  tried  for  killing. 

Cited  in  notes  (32  L.R.A.(X.S-)  774)  on  incriminating  evidence  furnished  under 
compulsion;  (94  Am.  St.  Rep.  343)  on  compelling  accused  to  perform  acts  and 
submit  person  to  inspection  and  examination. 

Distinguished  in  Williams  v.  State,  98  Ala.  54,  13  So.  333,  holding  defendant 
testifying  as  to  age  may  be  required  to  stand  before  jury;  Potter  v.  State,  92  Ala. 
40,  9  So.  402,  holding  proof  of  correspondence  of  defendant's  feet  with  tracks,, 
upon  comparison  voluntarily  made,  admissible. 
Experiments   as   evidence. 

Cited  in  note  (53  Am.  St.  Rep.  378)  on  experiments  as  evidence. 


4  L.R.A.  767]  L.  R.  A.  CASES  AS  AUTHORITIES.  768 

4  L.  R.  A.  767,  FARMERS'  HIGH  LINE  CANAL  v.  SOUTHWORTII,   13  Colo. 
Ill,  21  Pac.   1028. 

Followed,  without  special  discussion,  in  Townsend  v.  Fulton  Irrigating  Ditch 
Co.   17  Colo.   145,  29  Pac.  453. 
Prior   appropriation    of    water. 

Cited  in  Taughenbaugh  v.  Clark,  6  Colo.  App.  244,  40  Pac.  153;  Combs  v.  Agri- 
cultural Ditch  Co.  17  Colo.  151,  31  Am.  St.  Rep.  275.  28  Pac.  96G-.  Nevada  Ditch 
Co.  v.  Bennett,  30  Or.  90,  60  Am.  St.  Rep.  777,  45  Pac.  472;  Colorado  Land  & 
W.  Co.  v.  Rocky  Ford  Canal,  R.  L.  Loan  &  T.  Co.  3  Colo.  App.  552,  34  Pac.  580, — 
holding  application  within  reasonable  time  to  beneficial  use,  essential  to  appro- 
priation; Becker  v.  Marble  Creek  Irrig.  Co.  15  Utah,  228,  49  Pac.  892,  and  Ft. 
Morgan  Land  &  Canal  Co.  v.  South  Platte  Ditch  Co.  18  Colo.  3,  30  Am.  St.  Rep. 
259,  30  Pac.  1032,  Holding  only  actual  use  gives  priority:  Union  Mill.  &  Min. 
Co.  v.  Dangberg,  81  Fed.  95,  holding  excessive  diversion  gives  no  -priority;  Walsh 
v.  Wallace,  26  Nev.  327,  99  Am.  St.  Rep.  692,  67  Pac.  914,  holding  survey  of  land 
on  river  and  cultivation  of  wild  grass  produced  by  overflow  not  an  appropriation 
of  water;  Snyder  v.  Colorado  Gold  Dredging  Co.  104  C.  C.  A.  136,  181  Fed.  67, 
holding  that  location  of  riparian  gold  placer  claim  is  not  appropriation  of  water; 
Wellington  v.  Beck.  30  Colo.  411,  70  Pac.  687,  on  waters  as  being  appropriated" 
for  irrigation  purposes  when  actually  applied  to  the  land  for  such  purpose;  Walsh 
v.  Wallace,  26  Nev.  327,  99  Am.  St.  Rep.  692,  67  Pac.  914,  holding  that  to  consti- 
tute valid  appropriation  there  must  be  actual  diversion  with  intent  to  apply 
the  wyater  to  a  beneficial  use,  followed  by  application  to  such  use  within  a  reason- 
able time. 

Cited  in  notes    (30  L.  R.  A.  676)    on  right  of  prior  appropriation  of  water; 
{8  L.R.A.  578)  on  property  in  unnavigable  lakes;   (60  Am.  St.  Rep.  807)  on  what 
constitutes  an  appropriation  of  water. 
It  in  h  <>   of  appropriators. 

Cited  in  Nichols  v.  Mclntosh,  19  Colo.  24,  34  Pac.  278,  holding  persons  may 
take  water  through  same  head-gate  without  losing  priorities;  Greer  v.  Heiser, 
16  Colo.  314,  26  Pac.  770,  holding  quantity  of  water  appropriated  when  ditch 
constructed  correct  basis  for  decree  of  priority;  Larimer  &  W.  Irrig.  Co.  v. 
Wyatt,  23  Colo.  491,  48  Pac.  528,  holding  prorating  act  applies  only  to  consum- 
ers having  contemporaneous  priorities;  Nichols  v.  Mclntosh,  19  Colo.  26,  34 
Pac.  278,  holding  adjudication  of  priorities  under  irrigation  acts  will  not,  with- 
out due  process,  aftect  vested  rights;  Oppenlander  v.  Left  Hand  Ditch  Co.  18 
Colo.  149,  31  Pac.  834,  holding  Colorado  Constitution  abrogates  common-law 
riparian  rights;  Park  v.  Park,  45  Colo.  354.  101  Pac.  403.  holding  that  there  may 
be  different  priorities  in  waters  of  the  same  ditch;  Farmers'  High  Line  Canal  & 
Reservoir  Co.  v.  White,  32  Colo.  117,  75  Pac.  415.  holding  that  appropriations  of 
waters  of  the  same  ditch  may  have  different  priorities  and  in  case  of  scarcity 
of  waters,  the  ones  having  first  priorities  cannot  be  compelled  to  pro  rate;  Ala- 
mosa  Creek  Canal  Co.  v.  Nelson,  42  Colo.  147,  93  Pac.  1112,  holding  that  priorities 
established  by  decree  may  be  lost  by  abandonment. 

Cited   in   notes    (46  L.R.A.   322,   323)    on   right   to   store   appropriated   water; 
(20  Am.  St.  Rep.  225)    on  right  of  prior  appropriator  of   water  for  irrigation; 
(25  Am.  St.  Rep.  254)  on  rights  of  prior  appropriator  of  water. 
Prior    appropriation,    how    pleaded. 

Cited  in  Church  v.  Stillwell,  12  Colo.  App.  49,  54  Pac.  395,  and  Downing  v 
Agricultural  Ditch  Co.  20  Colo.  551,  39  Pac.  336,  holding  facts  establishing  prior 
water  right  must  be  pleaded;  Wellington  v.  Beck,  30  Colo.  411,  70  Pac.  687, 
holding  answer  of  prior  appropriation  for  irrigation  sufficient,  in  action  to  rf.~ 
strain  diversion  of  waters  of  creek;  Sterling  v.  Pawnee  Ditch  Extension  Co.  42 


769  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  77G 

Colo.  429,  15  L.R.A.(N.S.)  242,  94  Pac.  339,  holding  that  substantive  facts  show- 
ing prior  appropriation  must  be  pleaded;  Soden  v.  Murphy,  42  Colo.  356,  94 
Pac.  353,  on  object  and  purpose  of  pleadings. 

Distinguished  in  Farmers  Independent  Ditch  Co.  v.  Agricultural  Ditch  Co. 
22  Colo.  522,  55  Am.  St.  Rep..  149,  45  Pac.  444,  Reversing  3  Colo.  App.  261,  32 
Pr.c.  722,  holding  allegation  of  date  of  construction  of  canal,  amount  of  water 
taken,  and  application  for  agricultural  purposes,  sufficient;  Hackett  v.  Larimer 
&  W.  Reservoir  Co.  48  Colo.  183,  109  Pac.  965,  on  necessity  of  alleging  facts  show- 
ing priority  of  appropriation. 
Irrigation  ditch  companies. 

Cited  in  Wyatt  v.  Larimer  &  W.  Irrig.  Co.  18  Colo.  308,  36  Am.  St.  Rep.  280, 
33  Pac.  144,  Reversing  1  Colo.  App.  498,  29  Pac.  906,  holding  canal  company 
consumer's  agent,  not  proprietor  of  water  diverted;  Nevada  Ditch  Co.  v.  Bennett, 
30  Or.  97,  60  Am.  St.  Rep.  777,  45  Pac.  472,  holding  canal  company  agent  to 
effect  diversion;  Wyatt  v.  Larimer  &  W.  Irrig.  Co.  18  Colo.  313,  36  Am.  St.  Rep. 
280,  33  Pac.  144,  holding  canal  company's  contracts  to  furnish  water  in  excess 
of  ability,  illegal;  Combs  v.  Farmers'  High  Line  Canal  &  Reservoir  Co.  38  Colo. 
432,  88  Pac.  396,  on  irrigation  company  as  trustee  for,  and  as  representing  the 
consumers;  Albuquerque  Land  &  Irrig.  Co.  v.  Gutierrez,  10  N.  M.  251,  61  Pac.  357, 
on  canal  company  as  an  agency  for  the  distribution  of  water  to  consumers. 

Limited  in  Wyatt  v.  Larimer  &  W.  Irrig.  Co.  1  Colo.  App.  489,  29  Pac.  906, 
holding  irrigation  canal  company  not  common  carrier. 
Validity  of  irrigation  laws. 

Cited  in  Roberson  v.  People,  40  Colo.  125,  90  Pac.  79,  holding  irrigation  law 
valid  as  a  proper  exercise  of  the  police  power  of  the  state. 

4  L.  R.  A.  776,  GRUBE  v.  MISSOURI  P.  R.  CO.  98  Mo.  330,  14  Am.  St.  Rep. 

645,  11  S.  W.  736. 
Laws    and    ordinances    regulating    operation    of    railroad. 

Cited  in  Jackson  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  157  Mo.  639,  80  Am.  St. 
Rep.  650,  58  S.  W.  32,  and  Bluedorn  v.  Missouri  P.  R.  Co.  108  Mo.  444,  18  S.  W. 
1103,  holding  laws  and  ordinances  regulating  speed  of  railroad  trains  purely  po- 
lice regulations;  Jackson  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  157  Mo.  641,  80 
Am.  St.  Rep.  650,  58  S.  W.  32;  Hutchinson  v.  Missouri  P.  R.  Co.  161  Mo.  253, 
64  Am.  St.  Rep.  710,  61  S.  W.  635;  Prewitt  v.  Missouri,  K.  &  T.  R.  Co.  134  Mo. 
626,  36  S.  W.  667;  Dahlstrom  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  108  Mo.  538,  18  S. 
W.  919, — holding  running  a  train  in  violation  of  city  ordinance  negligence  per 
se;  Jackson  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  157  Mo.  633,  80  Am.  St.  Rep. 
650,  58  S.  W.  32,  holding  ordinance  regulating  speed  of  trains  in  city,  applied 
to  railroad  yards;  Baltimore  &  O.  S.  W.  R.  Co.  v.  Peterson,  156  Ind.  371,  59  X. 
E.  1044,  holding  ordinance  regulating  handling  of  cars  in  railroad  company's 
yards,  valid;  Sluder  v.  St  Louis  Transit  Co.  189  Mo.  131,  5  L.R.A.(X.S.) 
201,  88  S.  W.  648,  holding  that  city  has  right  under  its  police  power  to  pass  an 
ordinance  requiring  motormen  on  street  cars  to  keep  vigilant  watch  for  pedes- 
trians on  or  near  the  track. 

Cited  in  footnote  to  Chicago  &  A.  R.  Co.  v.  Carlinville,  60  L.  R.  A.  391,  which 
sustains  ordinance  limiting  speed  of  interstate  trains  to  10  miles  an  hour  within 
<>ity  limits. 

Cited  in  notes  (7  L.  R.  A.  318)  on  duty  to  slacken  speed  at  highway  cross- 
ings; (11  L.  R.  A.  435)  on  rate  of  speed  of  railway  train;  (39  L.  R.  A.  615) 
on  municipal  control  over  public  nuisances  on  streets  and  highways  created  by 
street  railroads  and  other  electrical  companies;  (5  L.R.A.(N.S.)  ]!>!.  1!>7,  208) 
on  violation  of  police  ordinance  as  to  railroads  aa  ground  for  private  action. 
L.R.A.  Au.  Vol.  I.— 49. 


4  L.R.A.  776]  L.  R.  A.  CASES  AS  AUTHORITIES.  770 

Proof    of    knowledge   of    servant's    incompetence. 

Cited  in  Baltimore  &  O.  R.  Co.  v.  Camp,  20  C.  C.  A.  628,  54  U.  S.  App.  110, 
81  Fed.  808,  holding  evidence  as  to  servant's  reputation  for  competence  admis- 
sible on  part  of  defense;  Western  Stone  Co.  v.  Whalen,  151  111.  483,  42  Am.  St. 
Rep.  244,  38  N.  E.  241,  holding  general  reputation  of  servant's  incompetence  ad- 
missible; Texas  C.  R.  Co.  v.  Rowland,  3  Tex.  Civ.  App.  162,  22  S.  W.  134,  hold- 
ing evidence  as  to  amount  of  intoxicants  consumed  by  servant  daily,  supple- 
mented by  testimony  as  to  general  reputation  for  sobriety  and  of  defendant's 
knowledge,  competent;  Wicklund  v.  Saylor  Coal  Co.  119  Iowa,  337,  93  N.  W. 
305,  holding  single  accident  not  shown  to  have  been  negligent,  and  warnings  by 
superintendent,  insufficient  to  charge  master. 

Cited  in  notes  (41  L.  R.  A.  98)  on  general  reputation  of  delinquent  servant 
as  notice  to  master  of  servant's  untitness;  (48  L.  R.  A.  390)  on  probative  value 
of  delinquent  servant's  reputation  as  tending  to  show  master's  culpability;  (14 
L.R.A.(N.S.)  760,  761,  764)  on  evidence  of  specific  instances  to  prove  knowledge 
of  incompetency  of  servant;  (20  L.R.A.(X.S.)  324)  on  inference  as  to  breach  of 
duty  to  employ  or  retain  none  but  competent  servants,  from  fact  of  incom- 
petence. 

Distinguished  in  Southern  P.  Co.  v.  Hetzer,  1  L.R.A.(X.S.)  292,  68  C.  C.  A.  26, 
135  Fed.  277,  holding  evidence  of  specific  acts  of  negligence  unknown  to  master  in- 
admissible to  prove  incompetence  of  servant  in  action  against  master. 
Direction    of   verdict. 

Cited  in  Hopkins  v.  Nashville,  C.  &  St.  L.  R.  Co.  96  Tenn.  409,  32  L.  R.  A. 
362,  34  S.  W.  1029,  holding  court  may  discuss  case  on  demurrer  -to  evidence. 

4  L.  R.  A.  782,  CORCORAN  v.  CORCORAN,  119  Ind.  138,  12  Am.  St.  Rep.  390, 

21  N.  E.  468. 
Contracts   l»y  husband  and   wife. 

Cited  in  Yelton  v.  Kerns,  16  Ind.  App.  94.  44  N.  E.  687.  holding  wife  not  bound 
by  oral  agreement  to  waive  statutory  allowance  on  consideration  moving  to  third 
party;  Fitzpatrick  v.  Burchill,  7  Misc.  466,  28  N.  Y.  Supp.  389,  upholding  con- 
veyance by  husband  to  wife  where  former  was  not  indebted;  Dempster  Mill 
Mfg.  Co.  v.  Bundy,  64  Kan.  449,  56  L.  R.  A.  740,  footnote,  p.  739,  67  Pac.  816, 
holding  agreement  of  husband  and  wife  to  work  for  each  other,  product  of  labor 
to  be  wife's  property,  void;  Robinson  v.  Foust,  31  Ind.  App.  388,  99  Am.  St. 
Rep.  269,  68  N.  E.  182.  holding  enforceable,  agreement  by  which  wife  supported 
husband  out  of  her  own  means,  on  promise  of  grandfather  to  make  provision  for 
her. 

Cited  in  notes  (6  L.R.A.  559)  on  contracts  between  husband  and  wife;  (15 
Am.  St.  Rep.  531)  on  same  point;  (21  Am.  St.  Rep.  84)  on  conveyance  between 
husband  and  wife;  (15  L.R.A. (X.S.)  491)  on  validity  of  antenuptial  contract 
by  husband  or  wife  to  support  the  other. 

Distinguished  in  Comstock  v.  Coon,   135  Ind.  645,  35  N.  E.  909,  holding  wife 
entitled  to  reformation  of  deed  from  husband,  for  valuable  consideration,  because 
of  misdescription. 
Allowance   for  acts   beneficial   to   another. 

Cited  in  Williamson  v.  Jones,  43  W.  Va.  592,  38  L.  R.  A.  708,  64  Am.  St. 
Rep.  91,  27  S.  E.  410,  allowing  person  taking  petroleum,  under  mistake  of  title, 
all  costs  of  production,  including  boring;  McXeely  v.  South  Penn  Oil  Co.  58 
\\  .  Va.  444,  52  S.  E.  480,  on  allowance  to  person  taking  oils  from  land  under 
mistake  as  to  title  in  action  by  rightful  owner. 


771  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R  A.  783 

4  L.  R.  A.  783,  LONG  v.  CROSSAN,  119  Ind.  3,  21  N.  E.  450. 
Estoppel    of    married    vroman    to    deny    validity    of    contracts    because    ot 
coverture. 

Cited  in  Shirk  v.  North,  138  Ind.  218,  37  N.  E.  590,  holding  wife's  unrestricted 
indorsement  of  notes,  as  security  for  debt  of  husband,  estops  her  from  claiming 
same  as  against  innocent  purchaser;  Government  Bldg.  &  Loan  Inst.  No.  2  v. 
Denny,  154  Ind.  269,  55  N.  E.  757,  holding  married  woman  estopped  to  deny 
validity  of  mortgage  made  by  her  grantee  for  his  own  benefit,  where  mortgagee 
has  no  notice  that  conveyance  is  without  consideration,  and  it  was  made  to  evade 
statute  against  contract  of  suretyship;  Percifield  v.  Black,  132  Ind.  387,  31  N.  E. 
955,  holding  married  woman  not  estopped  from  setting  up  invalidity  of  parol 
agreement  to  sell  real  estate  by  reason  of  her  incapacity. 

Cited  in  footnotes  to  Wilder  v.  Wilder,  9  L.  R.  A.  97,  which  holds  married 
woman  estopped  to  claim  vendor's  lien  by  representing  that  one  loaning  to  ven- 
dee should  have  first  mortgage;  Hunt  v.  Reilly,  59  L.  R.  A.  206,  which  holds 
wife's  failure  to  notify  purchaser  of  rights  after  learning  of  forgery  of  her  name 
to  husband's  deed  does  not  estop  her  to  claim  dower;  Grice  v.  Wocxlworth,  69 
L.R. A.  584,  which  holds  married  woman  estopped  to  set  up  invalidity  of  contract 
by  her  husband  and  herself  to  sell  homestead  for  failure  to  comply  with  certain 
conditions  after  purchaser  has  paid  purchase  price,  taken  possession,  and  made 
valuable  improvements. 

Cited  in  notes    (16  Am.  St.  Rep.  686;   57  Am.  St.  Rep.  173)    on  estoppel  of 
married  women. 
Invalidity    of    contract    of   suretyship    by    married    woman. 

Cited  in  Goff  v.  Hankins,  11  Ind.  App.  458,  39  N.  E.  294,  holding  statute  pro- 
hibiting contracts  of  suretyship  by  married  woman  is  limitation  upon  her  right 
of  contract  respecting  her  separate  property,  and  applicable  to  both  personal  and 
real  property;  Cummings  v.  Martin,  128  Ind.  22,  27  N.  E.  173,  holding  contract 
for  loan  in  form  with  wife  as  principal,  but  in  fact  one  of  suretyship  for  hus- 
band, void  as  to  wife;  Wilson  v.  Logue,  131  Ind.  193,  31  Am.  St.  Rep.  426,  30 
N.  E.  1079,  holding  mortgage  of  lands  held  by  husband  and  wife  by  entireties, 
to  secure  debt  of  husband,  is  void,  although  note  signed  by  wife;  Bragg  v.  Lam- 
port, 38  C.  C.  A.  469.  96  Fed.  632,  holding  married  woman  conveying  property 
to  son  to  enable  latter  to  mortgage  it,  estopped  from  denying  validity  of  mort- 
gage; Weil  v.  Waterliouse,  46  Ind.  App.  691,  91  N.  E.  746,  holding  that  married 
woman  cannot  guaranty  rent  to  become  due  from  husband. 

Cited  in  footnote  to  National  Granite  Bank  v.  Tyndale,  51  L.  R.  A.  447,  which 
authorizes  action  at  law  against  estate  of  married  woman  for  loan  made  to  her 
on  her  credit  though  notes  given  by  her  void. 

Cited  in  note  (8  L.  R.  A.  407)  on  incapacity  of  married  woman  to  contract 
as  surety. 

Distinguished  in  Grzesk  v.  Hibberd,  149  Ind.  359,  48  N.  E.  361;  Government 
Bldg.  &  Loan  Inst,  No.  2  v.  Denny,  154  Ind.  267,  55  N.  E.  757;  Abicht  v.  Searls, 
154  Ind.  597,  57  N.  E.  246, — holding  where  purpose  of  conveyance  by  husband 
and  wife,  and  reconveyance  to  husband,  is  to  evade  statute  against  wife's  con- 
tract of  suretyship,  mortgage  by  husband  and  wife  for  husband's  debt,  void. 
Attempt  to  accomplish  prohibited  acts  indirectly. 

Cited  in  Citizens'  Street  R.  Co.  v.  Shepherd,  29  Ind.  App.  421,  62  N.  E.  300, 
as  to  duty  of  court  to  deal  with  a  transaction  according  to  the  substance,  with- 
out regard  to  the  form;  Field  v.  Campbell,  164  Ind.  394,  108  Am.  St.  Rep.  301, 
72  N.  E.  260,  on  question  of  validity  of  married  woman's  contract  being  de- 
termined by  the  substance  of  the  contract  regardless  of  its  form. 


4  L.R.A.  783]  L.  R.  A.  CASES  AS  AUTHORITIES.  772 

Distinguished  in  Webb  v.  John  Hancock  Mut.  L.  Ins.  Co.  102  Ind.  639,  66 
L.R.A.  647,  69  N.  E.  1006,  holding  mortgagee  chargeable  with  notice  of  evasion 
of  statute  where  abstract  showed  conveyance  from  wife  to  husband  upon  nominal 
consideration  immediately  prior  to  the  application  for  the  loan. 

4  L.  R.  A.  785,  BARRE  R.  CO.  v.  MONTPELIER  &  W.  RIVER  R.  CO.  61  Vt.  1, 

15  Am.  St.  Rep.  877,  17  Atl.  923. 
Rights  acquired   by  railroad  by   location   of  right   of   way. 

Cited  in  Union  Terminal  R.  Co.  v.  Kansas  City  Belt  R.  Co.  9  Kan.  App.  291, 
60  Pac.  541,  holding  condemnation  proceeding  by  railroad  to  acquire  right  of 
way  located  and  occupied  by  railroad,  invalid;  Kanawha,  G.  J.  &  E.  R.  Co.  v. 
Glen  Jean,  L.  L.  &  D.  W.  R.  Co.  45  W.  Va.  128,  30  S.  E.  86  (dissenting  opinion), 
majority  holding  survey  and  location  of  railroad  followed  by  condemnation  gives 
priority  of  title  over  deed  to  rival  railroad  made  after  survey,  but  before  pro- 
ceedings for  condemnation;  Minneapolis  &  St.  L.  R.  Co.  v.  Chicago,  M.  &  St.  P.  R. 
Co.  116  Iowa,  690,  88  N.  W.  1082,  holding  condemnation  proceedings  not  begun 
by  survey  so  as  to  give  prior  right;  Southern  Indiana  R.  Co.  v.  Indianapolis  & 
L.  R.  Co.  168  Ind.  370,  13  L.R.A. (N.S.)  202,  81  N.  E.  65,  holding  legal  loca- 
tion of  railway  necessary  before  railroad  company's  lands  are  exempt  from 
appropriation  by  another  railway;  Ft.  Wayne  &  S.  W.  Traction  Co.  v.  Ft.  Wayne 
&  W.  R.  Co.  170  Ind.  58,  16  L.R.A.  (N.S.)  544,  83  N.  E.  665,  holding  that  the 
filing  of  an  instrument  of  appropriation  by  an  interurban  railroad  company  gives 
it  priority  in  lands  affected;  Nicomen  Boom  Co.  v.  North  Shore  Boom  &  Driv- 
ing Co.  40  Wash.  326,  82  Pac.  412,  holding  that  boom  company  has  priority  in 
lands  for  boom  purposes  where  adjoining  lands  already  in  use  and  extensions 
being  made  as  required  by  the  business;  Chesapeake  &  O.  R.  Co.  v.  Deepwater 
R.  Co.  57  W.  Va.  657,  50  S.  E.  890,  holding  that  survey  adopted  by  corporate 
action  is  sufficient  to  give  priority  as  against  another  corporation. 

Cited  in  note  (12  L.  R.  A.  220,  221)  on  what  is  sufficient  location  of  railroad 
to  exclude  appropriation  by  railroad. 

Distinguished  in  Atlanta,  K.  &  N.  R.  Co.  v.  Southern  R.  Co.  66  C.  C.  A.  601, 

131  Fed.  666,  holding  that  preliminary  survey  gives  no  priority  in  absence  of 
statute;   Milwaukee  Light,  Heat  &  Traction  Co.  v.  Milwaukee-Northern  R.  Co. 

132  Wis.   340,   112  N.  W.   663,   holding  priority  acquired  by  the  company  first 
making  a  completed  location  by  survey,  and  by  obtaining  options  on  the  lands 
affected. 

Authority    to    exercise   right    of    eminent    domain. 

Annotation  cited  in  Pennsylvania  Teleph.  Co.  v.  Hoover,  24  Pa.  Super.  Ct.  98, 
holding  that  telephone  company  has  not  the  right  of  eminent  domain  over  pri- 
vate lands. 

Cited  in  footnotes  to  Board  of  Health  v.  Van  Hoesen,  14  L.  R.  A.  114,  which 
liolds  power  of  eminent  domain  not  conferable  on  rural  cemetery  corporation: 
Wisconsin  Water  Co.  v.  Winans,  20  L.  R.  A.  662,  which  denies  water-supply 
company's  right  to  condemn  land  for  pipe  line. 

Cited  in  notes   (7  L.  R.  A.  152)   on  exercise  of  right  of  eminent  domain  a  po- 
litical, not  judicial,  question;    (5   L.  R.  A.   663)    on  when  exercise  of  right  of 
eminent  domain  enjoined;    (12  L.  R.  A.  675)    on  right  of  eminent  domain. 
Condemnation  of  lauds  already  devoted  to  public  use. 

Cited  in  Southern  P.  R.  Co.  v.  Southern  California  R.  Co.  Ill  Cal.  228,  43 
Pac.  602;  Seattle  &  M.  R.  Co.  v.  State,  7  Wash.  164,  22  L.  R.  A.  225,  38  Am. 
St.  Rep.  866,  34  Pac.  551;  Rutland-Canadian  R.  Co.  v.  Central  Vermont  R.  Co. 
72  Vt.  133,  47  Atl.  399, — holding  property  already  taken  for  public  use  cannot 
l>e  taken  for  another  public  use  without  legislative  authority;  Indianapolis  & 


773  L.  K.  A.  CASES  AS  AUTHOKillKS.  [4  L.R.A.  793 

V.  R.  Co.  v.  Indianapolis  &  M.  Rapid  Transit  Co.  33  Ind.  App.  344,  67  N.  E. 
1013,  holding  that  interurban  railway  company  has  no  power  to  condemn  part 
of  right  of  way  of  railroad  for  its  track  to  avoid  a  curve  in  its  line;  Memphis 
State  Line  R.  Co.  v.  Forest  Hill  Cemetery  Co.  116  Term.  413,  94  S.  W.  69,  hold- 
ing that  railway  can  not  condemn  right  of  way  through  public  cemetery,  though 
all  the  lands  are  not  in  use  for  cemetery  purposes;  State  ex  rel.  Portland  & 
S.  R.  Co.  v.  Superior  Ct.  45  Wash.  278,  88  Pac.  201,  denying  railroad  company 
right  to  condemn  right  of  way  over  another  company's  terminal  grounds  and 
tracks  where  reasonable  route  exists  over  other  lands. 

Cited  in  footnotes  to  Diamond  Jo  Line  Steamers  v.  Davenport,  54  L.  R.  A. 
859,  which  authorizes  condemnation  for  public  wharf  of  land  used  by  carrier  as 
landing  place;  Paxton  &  H.  Irrig.  Canal  &  Land  Co.  v.  Farmers'  &  M.  Irrig.  & 
Land  Co.  29  L.  R.  A.  853,  which  holds  condemnation  of  land  for  irrigating  ditches 
to  be  "for"  public  purpose;  Denver  Power  &  Irrig.  Co.  v.  Colorado  &  S.  R.  Co. 
60  L.  R.  A.  383,  which  denies  power  of  reservoir  company  to  condemn  land  de- 
voted to  purpose  of  railroad  unless  public  necessity  requires;  Re  Board  of  Street 
Opening,  16  L.  R.  A.  180,  which  authorizes  taking  of  private  cemetery  for  pub- 
lic park;  Re  Brooklyn,  26  L.  R.  A.  270,  which  upholds  act  authorizing  city  to 
acquire  property  of  water  company;  Re  Stewart.  33  L.  R.  A.  427,  which  upholds 
statute  giving  right  to  condemn  warehouse  site  on  right  of  way  of  railway; 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Ohio  Postal  Teleg.  Co.  62  L.R.A.  951,  which 
holds  determination  that  practical  uses  of  railroad  right  of  way  will  not  be 
interfered  with  by  appropriation  of  part  thereof  by  magnetic  telegraph  com- 
pany prerequisite  to  such  appropriation. 

Cited  in  notes  (5  L.R.A.  (N.S.)  516)  on  right  of  railroad  to  condemn  right 
of  way  over  or  across  tracks  of  another  for  spur  to  private  establishments;  (26 
Am.  St.  Rep.  432)  on  right  of  one  railway  to  cross  another. 

Distinguished  in  Butte,  A.  &  P.  R.  Co.  v.  Montana  Union  R.  Co.  16  Mont. 
544,  31  L.  R.  A.  311,  footnote,  p.  298,  50  Am.  St.  Rep.  508,  41  Pac.  232,  holding 
unused  portion  of  railroad  right  of  way  may  be  taken  by  condemnation  by  an- 
other railroad  for  more  necessary  public  use;  Portneuf  Irrigating  Co.  v.  Budge, 
16  Idaho,  131,  100  Pac.  1046,  18  Ann.  Gas.  674,  holding,  under  statute,  lands 
appropriated  to  public  use  may  be  taken  for  a  more  necessary  public  use. 
What  constitutes  public  purpose. 

Cited  in  State  ex  rel.  Railroad  &  W.  Commission  v.  Willmar  &  S.  F.  R.  Co. 
88  Minn.  454,  93  N.  W.  112,  holding  spur  track  to  quarry,  and  devoted  to  traffic, 
not  a  private  track;  Jones  v.  Newport  News  &  M.  Valley  Co.  13  C.  C.  A.  99, 
31  U.  S.  App.  92,  65  Fed.  740,  upholding  right  of  railroad  company  to  discon- 
tinue a  switch  to  private  warehouse;  State  ex  rel.  Burr  v.  Atlantic  Coast  Line 
R.  Co.  59  Fla.  629,  52  So.  4,  holding  that  devotion  of  spur  tracks,  connected 
with  railway  system,  to  purposes  of  traffic  is  public  use. 

Cited  in  notes  (20  L.  R.  A.  438)  on  power  to  condemn  right  of  way  for  railroad 
siding  to  private  establishments;  (7  L.  R.  A.  767)  on  vested  rights  subordinate 
to  power  of  eminent  domain;  (14  L.  R.  A.  480)  on  public  purposes  for  which 
money  may  be  raised  by  taxation;  (11  L.  R.  A.  286)  on  constitutional  protec- 
tion of  property  rights. 

4  L.  R.  A.  793,  LINDVALL  v.  WOODS,  41  Minn.  212,  42  N.  W.   1020. 
Who  are  fellow  servants. 

Cited  in  Jacobsen  v.  Minneapolis,  115  Minn.  401,  132  X.  W.  341,  holding  that 
servant  placing  timbers  across  trench  to  support  concrete  mixer  is  fellow  servant 
of  workman  in  trench. 


4  L.R.A.  793]  L.  R.  A.  CASES  AS  AUTHORITIES.  774 

Cited  in  footnote  to  Baltimore  &  O.  R.  Co.  v.  Andrews,  17  L.  R.  A.  190,  which 
holds  conductor  and  engineer  fellow  servants  of  brakenian  on  another  train. 

Cited  in  notes  (5  L.R.A.  735;  20  Am.  St.  Rep.  368)  on  who  are  fellow-servants; 
(75  Am.  St.  Rep.  588,  589,  596,  602,  620,  640)   on  who  is  a  vice  principal. 
Foreman    and    employees    under    him. 

Cited  in  Callan  v.  Bull,  113  Cal.  605,  45  Pac.  1017;  Bell  v.  Lang,  83  Minn. 
231,  80  X.  W.  95;  Ling  v.  St.  Paul,  M.  &  M.  R.  Co.  50  Minn.  164,  52  X.  W. 
378, — holding  as  to  details  incident  to  performance  of  work  foreman  and  com- 
mon laborer  are  fellow  servants;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Martin.  7  X.  M. 
172,  34  Pac.  536,  holding  foreman  of  section-gang  fellow  servant  of  section-hand 
in  operation  of  hand  car;  Corneilson  v.  Eastern  R.  Co.  50  Minn.  26,  52  N.  W. 
224,  holding  engineer  in  charge  of  blasting,  fellow  servant  of  laborer  injured 
while  removing  unexploded  charge  of  powder  by  method  directed  by  engineer; 
Hanna  v.  Granger,  18  R.  I.  512,  28  Atl.  659,  holding  engineer  of  stenm  roller, 
used  in  repairing  streets,  fellow  servant  of  flagman  to  roller,  injured  by  engi- 
neer negligently  starting  roller  without  warning;  Hjelm  v.  Western  Granite 
Contracting  Co.  94  Minn.  172,  102  X.  W.  384,  holding  that  the  person  operat- 
ing the  quarry,  and  having  charge  of  the  blasting  was  a  vice-principal;  Jeraming 
v.  Great  Xorthern  R.  Co.  96  Minn.  313,  1  L.R.A. (N.S.)  704,  104  X.  W.  1079. 
holding  that  a  foreman  to  the  extent  to  which  the  master's  absolute  and  per- 
sonal duties  are  delegated  to  him,  acts  as  a  vice-principal,  but  where  engaged 
with  others  in  the  common  employment,  he  is  a  fellow  servant;  Doerr  v.  Daily 
News  Pub.  Co.  97  Minn.  250,  106  N.  W.  1044,  holding  that  the  act  of  the  fore- 
man of  the  press  room  in  starting  a  press,  while  engaged  with  the  servant  in 
the  ordinary  usual  duty  of  running  the  machine,  is  the  act  of  a  fellow  servant; 
Borgerson  v.  Cook  Stone  Co.  91  Minn.  95,  97  X.  W.  734,  holding  that  a  fore- 
man in  charge  of  a  quarry,  by  placing  one  man  so  as  to  make  the  place  where 
another  worked,  more  dangerous,  acted  as  a  vice-principal ;  McCoy  v.  Xorthern 
Heating  &  Electric  Co.  104  Minn.  237,  116  N.  W.  488,  holding  that  where  a 
foreman  directed  the  servant  to  enter  a  trench  which  was  dangerous  because 
not  properly  protected  from  caving  in,  the  foreman  acted  as  a  vice-principal ; 
Fahey  v.  Federal  Steel  Foundry  Co.  19  Pa.  Dist.  R.  317,  11  Del.  Co.  Ct.  Rep.  107, 
holding  that  helper  engaged  in  fusing  iron  in  steel  foundry  is  fellow  servant  of 
foreman  directing  him  how  to  make  plugs. 

Cited  in  footnote  to  Palmer  v.  Michigan  C.  R.  Co.  17  L.  R.  A.  637,  which  holds 
assistant  road-master  not  fellow  servant  of  gang  of  men  working  under  him. 

Cited  in  notes  (12  L.R.A.  97)  as  to  when  master  is  liable  for  negligence  of 
coservant  acting  under  authority;  (18  L.R.A.  824)  on  negligent  superiors. 

Distinguished  in  Lohman  v.  Swift  &  Co.  105  Minn.  151,  117  N.  W.  418,  hold- 
ing that  where  the  foreman  started  a  machine  in  motion  which  the  servant  was 
repairing  pursuant  to  the  master's  orders,  the  foreman  was  a  vice-principal  and 
not  a  fellow-servant. 
—  Test   whether  one   Is   vice   principal   or   fellow   servant. 

Cited  in  Ell  v.  Northern  P.  R.  Co.  1  X.  D.  352,  12  L.  R.  A.  102,  26  Am.  St. 
Rep.  621,  48  N.  W.  222;  Carlson  v.  Xorthwestern  Teleph.  Exchange  Co.  63  Minn. 
432,  65  N.  W.  914;  Lundberg  v.  Shevlin-Carpenter  Co.  68  Minn.  137,  70  N.  W. 
1078;  O'Xiel  v.  Great  Xorthern  R.  Co.  80  Minn.  30,  51  L.  R.  A.  539,  82  X.  W. 
1086, — holding  test  whether  one  is  vice  principal,  not  superiority  of  rank,  but 
nature  of  duty  or  service;  Callan  v.  Bull,  113  Cal.  601,  45  Pac.  1017.  and 
Perras  v.  A.  Booth  &  Co.  82  Minn.  196,  84  X.  W.  739,  holding  servant  to  whom 
is  delegated  master's  duty  to  provide  safe  instrumentalities  and  place  to  work, 
is  vice  principal  when  engaged  in  performance  of  special  powers;  Soutar  v. 
31inneapolis  International  Electric  Co.  68  Minn.  20.  70  X.  W.  790,  holding  per- 


775  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  793 

son  authorized  by  master  to  provide  appliances  and  place  to  work  and  to  su- 
pervise performance  of  work  is  vice  principal;  Wellston  Coal  Co.  v.  Smith,  65 
Ohio  St.  76,  55  L.  R.  A.  102,  87  Am.  St.  Rep.  547,  61  X.  E.  143,  holding  em- 
ployee to  whom  mine  hoss  delegates  duty  of  keeping  entry  to  mine  safe  is  not 
as  to  performance  of  such  duty  fellow  servant  to  other  miners;  Carlson  v.  North- 
western Teleph.  Exchange  Co.  63  Minn.  437,  65  N.  W.  914  (dissenting  opinion), 
majority  holding  foreman  in  charge  of  work  of  excavating  ditch,  with  authority 
to  employ  and  discharge  men,  is  vice  principal;  Pasco  v.  Minneapolis  Steel  & 
Machinery  Co.  105  Minn.  133,  18  L.R.A.(N.S.)  155,  117  N.  W.  479,  holding  that 
the  test  of  a  fellow-servant  or  vice-principal  is  whether  the  person  was  entrusted 
with  some  absolute  duty  of  the  master,  and  not  the  nature  of  his  duty,  service 
or  rank. 

Cited  in  notes  (51  L.  R.  A.  604,  614)  on  vice  principalship  considered  with 
reference  to  superior  rank  of  negligent  servant;  (54  L.  R.  A.  39,  40,  42,  43)  on 
vice  principalship  as  determined  with  reference  to  character  of  act  which  caused 
injury;  (8  L.  R.  A.  818)  on  vice  principals  and  agents;  (54  L.  R.  A.  60)  on 
servant  acting  in  dual  capacity;  (54  L.  R.  A.  69)  on  what  duties  cannot  be 
delegated. 

Distinguished  in  Blomquist  v.  Chicago,  M.  &  St.  P.  R.  Co.  60  Minn.  430,  62 
N.  W.  818,  holding  foreman  in  charge  of  construction  of  platform  and  erection 
of  derrick  is  vice  principal,  and  not  fellow  servant,  of  common  laborer. 
Servants  In   different   departments. 

Cited  in  Bergquist  v.  Minneapolis,  42  Minn.  472,  44  N.  W.  530,  holding  laborer 
excavating  trench  is  fellow  servant  with  laborer  putting  in  curbing  as  ex- 
cavation progressed;  Eraser  v.  Red  River  Lumber  Co.  45  Minn.  237,  47  X.  \V. 
785,  holding  "sorter"  and  "piler"  of  lumber  under  same  general  control,  and 
engaged  in  promoting  common  object,  are  fellow  servants. 

Cited  in  footnotes  to  Clarke  v.  Pennsylvania  Co.  17  L.  R.  A.  811,  which  holds 
section  boss  of  one  gang  and  member  of  another  gang  fellow  servants;  Fisher  v. 
Oregon  Short  Line  &  U.  X.  R.  Co.  16  L.  R.  A.  519,  which  holds  section  foreman 
and  conductor  not  fellow  servants;  Wischam  v.  Rickards,  10  L.  R.  A.  97,  which 
holds  factory  employee  assisting  servants  of  one  delivering  fly-wheel,  servant 
of  latter. 
Liability  of  master  for  negligence  of  fellow  servant. 

Cited  in  Greeley  v.  Foster,  32  Colo.  304,  75  Pac.  351,  holding  master's  duty 
to  provide  safe  place  for  the  servant  to  work,  did  not  apply  where  at  order  of 
foreman  servant  went  into  a  caving  trench  to  shore  it  up. 
Duty   of  master  in   respect   to   safety  of  appliances  and   structures. 

Cited  in  footnotes  to  Lehigh  &  W.  Coal  Co.  v.  Hayes,  5  L.  R.  A.  441,  which 
holds  master  furnishing  ordinary  appliances  not  liable  for  failure  to  furnish 
unusual  one;  Sweet  v.  Ohio  Coal  Co.  9  L.  R.  A.  861,  which  holds  master  may 
-conduct  business  in  own  way,  though  another  method  less  hazardous;  Pittsburg 
&  L.  E.  R.  Co.  v.  Henley,  15  L.  R.  A.  384,  which  holds  use  of  two  coupling  de- 
vices not  negligence  per  se;  McKee  v.  Chicago,  R.  I.  &  P.  R.  Co.  13  L.  R.  A.  817, 
which  holds  placing  wing  fences  at  cattle-guard  almost  4  feet  from  track  not 
negligence;  Goodrich  v.  Xew  York  C.  &  H.  R.  R.  Co.  5  L.  R.  A.  750,  which  holds 
master  liable  for  using  foreign  cars  with  defective  coupling  apparatus. 

Cited  in  note    (20  Am.  St.  Rep.  40)   on  duty  toward  servant  to  furnish  safe 
.appliances. 
Assumption    of   risk. 

Cited  in  Brunell  v.  Southern  P.  Co.  34  Or.  264,  56  Pac.  129,  holding  act  of 
section-hand  dropping  tamping  bar,  which  being  struck  by  approaching  grip  car 


4  L.R.A.  793]  L.  R.  A.  CASES  AS  AUTHORITIES.  776 

was  thrown  against  leg  of  another  section-hand,  is  within  risk  assumed  by  lat- 
ter; Baltimore  &  O.  S.  W.  R.  Co.  v.  Welsh,  17  Ind.  App.  513,  47  N.  E.  182,  hold- 
ing employee  on  construction  train  assumes  risk  of  injury  from  defective  con- 
dition of  railroad;  McQueeny  v.  Chicago,  M.  &  St.  P.  R.  Co.  120  Iowa.  52.").  U4 
N.  W.  1124,  holding  railroad  company  not  liable  for  injury  to  employee  by 
caving  of  bank  due  to  apparent  nature  of  soil. 

Cited  in  notes    (13  L.  R.  A.  375)    on  when  servant  assumes  risk  of  safety  of 
implements;    (6  L.  R.  A.  585)    on  nonassumption  by  employee  of  risk  of  neg- 
ligence of  master's  representative:    (7  L.  R.  A.  503)    on  combined  negligence  of 
master  and  servant. 
Liability    of    master    in    respect    to    temporary    structures    used    in    -work. 

Cited  in  F.  C.  Austin  Mfg.  Co.  v.  Johnson,  32  C.  C.  A.  317,  60  U.  S.  App.  661,  89 
Fed.  684  (dissenting  opinion),  majority  holding  scaffolding  built  under  direc- 
tion of  general  agent  to  support  superstructure  of  bridge  is  appliance  furnished 
by  master;  Kerr-Murray  Mfg.  Co.  v.  Hess,  38  C.  C.  A.  647,  98  Fed.  61  (dissent- 
ing opinion),  majority  holding  master  responsible  for  negligence  of  servant 
providing  defective  material  for  scaffolding,  without  regard  to  rank;  Ralph  v. 
American  Bridge  Co.  30  Wash.  505,  70  Pac.  1098,  holding  master  liable  for  in- 
jury to  servant  due  to  defective  ladder;  Hamlin  v.  Lanquist  &  I.  Co.  Ill  Minn. 
497,  127  N.  W.  490,  20  Ann.  Cas.  893  (dissenting  opinion),  on  liability  of  mas- 
ter for  injury  to  servant  from  failure  of  fellow  servant  to  fasten  derrick  witb 
clamps  furnished  by  master. 

Cited  in  footnote  to  St.  Louis,  A.  &  T.  R.  Co.  v.  Triplett,  11  L.  R.  A.  773, 
which  holds  master's  duty  to  protect  repair  track  not  fulfilled  by  adopting  rule 
sufficient  if  faithfully  observed  by  employees. 

Cited  in  notes  (54  L.  R.  A.  144,  148)  on  negligence  of  coservant  in  respect 
to  preparation  or  structual  modification  of  instrumentalities  or  their  parts; 
(51  L.  R.  A.  531)  on  doctrine  that  vice  principalship  not  deducible  merely  from 
possession  of  power  over  injured  servant  as  applied  to  construction  work. 

Distinguished  in  Sims  v.  American  Steel  Barge  Co.  56  Minn.  72,  45  Am.  St. 
Rep.  451,  57  N.  W.  322,  holding  stage  builders  not  fellow  servants  to  ship-plater 
using  staging  when  latter  furnished  by  master. 
Scaffolding   made    by    laborers. 

Cited  in  Oelschlegel  v.  Chicago  G.  W.  R.  Co.  73  Minn.  331,  76  N.  W.  56,  and 
Marsh  v.  Herman,  47  Minn.  539,  50  N.  W.  611,  holding  where  construction  of 
scaffolding  is  part  of  main  work  to  be  done  and  used  as  means  of  doing  remainder, 
those  engaged  in  entire  work  are  fellow  servants. 
Res  jndicata. 

Cited  in  Matteson  v.  United  States  &  C.  Land  Co.  112  Minn.  193,  127  X.  W. 
629,  holding  that  law  established  in  former  action  dismissed  without  prejudice 
does  not  become  res  judicata. 

4  L.  R.  A.  800,  MOXAGHAN  v.  STATE,  66  Miss.  513,  6  So.  241. 
Sale    of    intoxicating    liquor    to    minors. 

Cited  in  Beck  v.  State,  69  Miss.  218,  13  So.  835.  holding  one  who  aids  in  unlaw- 
ful sale  of  intoxicating  liquor  properly  convicted :  Yakel  v.  State,  30  Tex.  App. 
399,  20  S.  W.  205,  holding  delivery  of  liquor  to  minor  paying  for  it.  violation  of 
the  law,  although  minor  was  sent  by  father:  Re  Mac  Rae.  75  Xeh.  760,  121  Am. 
St.  Rep.  829,  106  N.  W.  1020,  holding  intoxicating  liquor  delivered  to  a  minor 
who  purchases  for,  and  delivers  to  one  to  whom  it  can  lawfully  be  sold,  is  not 
a  sale  to  the  minor. 

Cited   in   notes    (10   L.R.A.   544)    on   sale   of   intoxicating   liquors  to  minors  r. 


777  L.  K.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  809 

(3  L.R.A.  (X.S.)    1196)    on  penal  liability  for  selling  liquor  to  minor  acting  as 
agent  for  adult;    (41  Am.  St.  Rep.  821)   on  sale  of  liquors  to  minors  by  direc- 
tion of  parents. 
Construction  of  statutes. 

Cited  in  note   (30  Am.  St.  Rep.  265)   on  construction  of  statutes. 

4  L.  R.  A.  801,  GOOD  v.  GALVESTON,  H.  &  S.  A.  R.  CO.  (Tex.)   11  S.  W.  854. 
Carrier's    contract. 

Cited  in  Norfolk  &  W.  R.,Co.  v.  Reeves,  97  Va.  294,  33  S.  E.  606,  holding  car- 
rier waived  stipulation  of  notice  of  claim  when  name  of  carrier's  freight  agent 
and  location  of  office  blank. 

Cited  in  notes  (6  L.  R.  A.  854)  on  carrier's  power  to  stipulate  for  exemption 
from  liability  for  neglect  of  itself,  its  servants,  or  its  agents;  (9  L.  fR.  A.  450)  on 
•duty  to  feed  and  water  stock;  (9  L.  R.  A.  452)  on  carrier's  liability  for  mis- 
carriage and  wrongful  delivery;  (44  L.  R.  A.  455)  on  statutory  duties  of  carriers 
of  live  stock,  with  reference  to  care  of  stock  during  transportation;  (7  L.R.A. 
(N.S. )  1045)  on  reasonableness  of  time  fixed  for  presenting  claim  for  damages 
to  livestock  shipped;  (17  L.R.A. (N.S. )  645)  on  notice  of  loss  or  injury  to  goods, 
required  by  carrier's  contract  as  condition  precedent. 

4  L.  R.  A.  803,  .PARKER  v.  PEOPLE,  13  Colo.  155,  21  Pac.  1120. 
Consolidation    of    indictments. 

Cited  in  Howard  v.  United  States,  34  L.  R.  A.  515,  21  C.  C.  A.  592,  43  U.  S. 
App.  678,  75  Fed.  992,  holding  that  cumulative  sentences  may  be  imposed;  Re 
Walsh,  37  Neb.  456,  55  N.  W.  1075,  and  Re  Packer,  18  Colo.  531,  33  Pac.  578,  hold- 
ing successive  penalties  for  several  convictions,  proper;  Re  Packer,  18  Colo.  528, 
33  Pac.  578,  holding  that  separate  judgments  should  be  entered  where  cases  are 
consolidated  for  trial;  Re  Dolph,  17  Colo.  39,  28  Pac.  470,  holding  act  permitting 
criminal  proceedings  by  information  concurrently  with  indictment,  valid. 

Cited  in  notes  (9  L.R.A.  182)  on  joining  of  offenses  of  same  general  character 
in  indictment;  (3  L.R.A. (N.S.)  414)  on  consolidation  of  two  indictments  for 
trial;  (7  L.R.A. (N.S.)  125)  on  cumulative  sentences. 

Grand   jury. 

Cited  in  notes   (27  L.  R.  A.  788)   on  organization  of  grand  jury;    (27  L.  R.  A. 
847)   on  number  of  grand  jurors  necessary  or  proper  to  act. 
Rig-hts  of  prisoner  on   trial. 

Cited  in  note  (39  L.  R.  A.  821)  on  rights  of  prisoner  to  appear  unmanacled  at 
his  trial. 

4  L.  R.  A.  809,  CHADDOCK  v.  DAY,  75  Mich.  527,  13  Am.  St.  Rep.  468.  42  N.  W. 
977. 

Licensing;   venders. 

Cited  in  State  v.  Foster,  22  R.  I.  173,  50  L.  R.  A.  344,  46  Atl.  833,  holding  act 
regulating  sales  by  itinerant  venders  valid;  Stull  v.  De  Mattos,  23  Wash.  76,  51 
L.  R.  A.  895,  62  Pac.  451,  holding  license  fee  of  transient  merchants  unreasonable: 
Saginaw  v.  Saginaw  Circuit  Judge,  106  Mich.  35.  63  N.  W.  985,  holding  ordinance 
requiring  unreasonable  license  fees  void;  Re  Snyder,  10  Idaho,  695,  68  L.R.A.  713, 
79  Pac.  819,  holding  invalid  ordinance  prohibiting  farmers  from  selling  beef  in 
city  without  license;  Allport  v.  Murphy,  153  Mich.  492,  116  X.  W.  1070.  hold- 
ing peddler's  license  ordinance  valid  and  applicable  as  well  to  resident  store- 
keepers as  to  other  persons  peddling;  State  v.  Wright,  53  Or.  350,  21  L.R.A. 


4  L.R.A.  809]  L.  R.  A.  CASES  AS  AUTHORITIES.  77S 

(X.S. )   353,  100  Pac.  296,  holding  peddler's  license  law  invalid  where  made  ap- 
plicable only  to  the  selling  of  certain  articles. 

Cited  in  footnotes  to  Knisely  v.  Cotterel,  50  L.  R.  A.  86,  which  sustains  statute 
fixing  different  rates  of  license  for  retailers,  wholesalers,  and  sellers  on  board  of 
trade;  Com.  use  of  Titusville  v.  Clark.  57  L.  R.  A.  348,  which  holds  void,  exemp- 
tion from  license  tax  of  contractors  and  real-estate  dealers,  but  not  others,  whose 
business  less  than  $1,000;  State  v.  Robinson,  6  L.  R.  A.  339,  which  construes 
charter  provision  as  to  licensing  hackmen,  etc.,  as  not  applying  to  one  hiring  rigs 
to  persons  using  same;  Littlefield  v.  State,  28  L.  R.  A.  588,  which  limits  power  to 
license  sales  of  milk  to  regulation,  and  not  raising  of  revenue;  Com.  v.  Brown,  28 
L.  R.  A.  110,  which  sustains  weekly  tax  on  sales  of  oysters;  Harrodsburg  v.  Ren- 
fro,  51  L.  R.  A.  897,  which  holds  void,  ordinance  imposing  greater  license  fee  for 
sale  of  liquors  on  main  street  of  town  than  elsewhere. 

Cited  in  notes  (  30  L.  R.  A.  434)  on  limit  of  amount  of  license  fees;  (24  L.  R. 
A.  585)  on  market  regulations  restricting  sales;  (9  L.  R.  A.  788)  on  municipal 
license;  (9  L.  R.  A.  70)  on  regulation  of  markets  and  market  houses;  (6  L.  R» 
A.  509)  on  license  of  occupations,  and  privilege  taxes;  (35  L.R.A.  (N.S.)  1075) 
on  validity  of  license  tax  on  peddlers  so  high  as  to  be  prohibitory;  (47  Am.  St. 
Rep.  702)  on  license  or  regulation  of  business  as  sanitary  measure;  (129  Am. 
St.  Rep.  264,  269,  275)  on  constitutional  limitations  on  power  to  impose  license 
or  occupation  taxes;  (16  Am.  St.  Rep.  584;  28  Am.  St.  Rep.  184)1  on  validity  of 
municipal  ordinance. 

Distinguished  in  Grand  Rapids  v.  Braudy,  105  Mich.  678,  32  L.  R.  A.  121,  55 
Am.  St.  Rep.  472,  64  N.  W.  29,  holding  license  fee  and  bond  required  of  pawn- 
brokers and  junk-dealers  reasonable;   People  v.  Baker,  115  Mich.  200,  73  N.  W. 
115,  holding  peddler's  license  fee  of  $5  per  day  unreasonable. 
Practice   In   mandamus. 

Cited  in  Allport  v.  Murphy,  153  Mich.  490,  116  N.  W.  1070,  on  practice  in 
order  to  show  cause  why  mandamus  should  not  issue  to  compel  the  issue  of  a. 
warrant  for  peddling  without  license. 

Cited  in  note  (15  Eng.  Rul.  Cas.  136)  on  when  mandamus  lies. 
Uniformity  of  taxation. 

Cited  in  foot  note  to  Nathan  v.  Spokane  County,  65  L.R.A.  337.  which  holds 
property  liable  to  taxation  under  general  laws  of  state  not  exempt  because  re- 
turned for  taxation  for  same  years  in  another  state. 

4  L.  R.  A.  813,  DETROIT  v.  BEECHER,  75  Mich.  454,  42  N.  W.  986. 

Reaffirmed  on  second  appeal  in  92  Mich.  269,  52  N.  W.  731. 
Proceedings   for  talcing:  property  for  public   nse. 

Cited  in  Trowbridge  v.  Detroit,  99  Mich.  445,  58  N.  W.  368.  holding  proceedings 
for  street  opening  may  be  taken  under  general  act  as  well  as  under  charter; 
Grand  Rapids  School  Furniture  Co.  v.  Grand  Rapids,  92  Mich.  570,  52  N.  W. 
1028,  holding  that  damages  for  taking  property  for  street  opening  cannot  be 
considered  in  making  assessment  for  benefit;  Grand  Rapids  v.  Luce,  92  Mich.  94, 
52  N.  W.  635,  holding  street  shall  not  be  opened  unless  benefit  to  public  shall 
equal  compensation  awarded  to  landowners;  Miller  v.  Oakwood  T\vp.  9  N.  D.  625,. 
84  N.  W.  556,  holding  that  newly  established  highway  should  not  be  vacated  un- 
less new  conditions  render  it  Unnecessary  or  undesirable;  ^Yater  Comrs.  v.  Lor- 
inan,  158  Mich.  613,  123  N.  W.  52,  holding  unconstitutional  act  which  fails  to- 
provide  that  jury  must  pass  upon  the  necessity  for  the  taking;  Boussneur  v. 
Detroit,  153  Mich.  588,  117  N.  W.  220,  on  validity  of  proceedings  where  ne- 
cessity, and  valuation  were  passed  upon  by  two  different  juries. 


779  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  826 

Cited  in  notes  (8  L.R.A.  323)  on  condemnation  of  property  by  municipalities 
for  public  uses;  (22  LvR.A.  (X.S.)  70,'  71)  on  judicial  power  over  eminent  do- 
main; (85  Am.  St.  Rep.  304,  313)  on  elements  of  damages  allowable  in  eminent 
domain  proceedings. 

4  L.  R.  A.  819,  WALES  v.  BOWDISH,  61  Vt.  23,  17  Atl.  1000. 
When   property  chargeable  tvith   debts  of  donee. 

Cited  in  Patten  v.  Herring,  9  Tex.  Civ.  App.  646,  29  S.  W.  388,  holding  property 
devised  in  trust  may  be  exempted  from  debts  of  beneficiary  if  such  intention  rea- 
sonably certain;  Seymour  v.  McAvoy,  121  Cal.  442,  41  L.  R.  A.  547,  53  Pac.  946, 
holding  testamentary  trust  may  provide  that  interest  of  beneficiary  shall  not  be 
subject  to  claims  of  creditors:  Patterson  v.  Lawrence,  83  Ga.  708,  7  L.  R.  A.  145, 
10  S.  E.  355,  holding  unexecuted  power  of  appointment  vests  no  interest  in  donee 
and  therefore  not  subject  to  his  debts;  Price  v.  Cherbonnier,  103  Md.  110,  63 
Atl.  209,  holding  property  not  chargeable  with  debts  where  decedent  had  an 
equitable  estate  therein  with  power  to  devise  to  particular  persons,  and  limi- 
tation over  in  case  of  failure  to  exercise  the  power;  Merchants'  Nat.  Bank  V. 
Crist,  140  Iowa,  313,  23  L.R.A. (X.S.)  529,  132  Am.  St.  Rep.  267,  118  N.  W. 
394,  on  doctrine  of  spendthrift's  trusts. 

Cited  in  footnotes  to  Murphy  v.  Delano,  55  L.  R.  A.  727,  which  holds  income  of 
spendthrift  trust  not  within  reach  of  creditors  by  void  agreement  of  trustee  to 
pay  certain  portion  of  income  absolutely  to  beneficiary;  Roberts  v.  Stevens,  17 
L.  R.  A.  266.  which  authorizes  establishment  of  spendthrift  trust  free  from  rights 
of  creditors;  Hutchinson  v.  Maxwell,  57  L.  R.  A.  384,  which  denies  power  to  cre- 
ate equitable  life  estate  free  from  debts  of  beneficiary;  Leigh  v.  Harrison,  18  L. 
R.  A.  49,  which  denies  creditor's  right  to  reach  debtor's  interest  under  spend- 
thrift trust. 

Cited  in  notes  (7  L.R.A.  367)  on  legacy  to  nephews  and  nieces;    (21  Eng.  Rul. 
Cas.  586)   on  executed  general  power  as  assets  for  payment  of  debts  of  deceased 
donee  of  the  power;   (25  Eng.  Rul.  Cas.  625;  24  Am.  St.  Rep.  696)  on  spendthrift 
trusts. 
What  may-  he  considered   fn   construing   will. 

Cited  in  Bailey  v.  Brown,  19  R.  I.  674,  36  Atl.  581,  holding  will  must  be  studied 
in  light  of  surrounding  circumstances  to  determine  intent. 

4  L.  R.  A.  826,  FEENEY  v.  HOWARD,  79  Cal.  525,  12  Am.  St.  Rep.  162,  21  Pac. 

984. 
Creation  of  trnst  in  property. 

Cited  in  Moore  v.  Hamerstag.  109  Cal.  124,  41  Pac.  805,  holding  conveyance  of 
mining  claim  by  locator  cannot  thereafter  be  turned  into  a  trust  by  oral  declara- 
tion of  parties  thereto ;  Kimball  v.  Tripp,  136  Cal.  635,  69  Pac.  428,  holding  prop- 
erty conveyed  to  agent  in  trust  though  not  in  writing  cannot  be  converted  to 
agent's  use;  Adams  v.  Lambard,  80  Cal.  435.  22  Pac.  180,  holding  parol  agreement 
to  reconvey  upon  payment  of  debt  where  relations  of  grantor  and  grantee  confi- 
dential, a  trust  enforceable  in  equity;  Hasshagen-v.  Hasshagen,  80  Cal.  518,  22 
Pac.  294,  declaring  trust  not  created  by  verbal  agreement  to  reconvey  property 
deeded  to  defraud  creditors;  Alaniz  v.  Casenave,  91  Cal.  46.  27  Pac.  521,  holding 
that  fraudulent  intent  need  not  be  proved  to  establish  constructive  trust,  where 
relations  of  grantor  and  irrantee  were  confidential:  Babcock  v.  Chase,  111  Cal. 
353,  43  Pac.  1105,  refusing  to  set  aside  absolute  deed  of  property  with  request  that 
it  be  held  for  grantor,  where  no  fraud  appeared  or  confidential  relations  existed: 
Haussman  v.  Burnham,  59  Conn.  143.  21  Am.  St.  Rep.  74.  22  Atl.  1065  (dissenting 
opinion),  majority  holding  that  equity  will  compel  reconveyance,  by  heirs,  where 


4  L.R.A.  826]  L.  R.  A.  CASES  AS  AUTHORITIES.  780 

ancestor,  in  attempting  to  comply  with  agreement  to  reconvey,  executed  defective 
deed;  Gray  v.  Walker,  157  Cal.  384,  108  Pac.  278,  holding  that  trust  does  not 
arise  where  man  conveys  land  to  his  uncle  upon  understanding  that  latter  will 
reconvey  it  on  request;  Cooney  v.  Glynn,  157  Cal.  587,  108  Pac.  506.  holding  that 
trust  arises  from  conveyance  by  mother  to  son  on  his  parol  promise  to  hold  it  in 
trust  for  daughter;  Kinley  v.  Thelen,  158  Cal.  183,  110  Pac.  513,  holding  that 
parol  trust  agreement  to  pay  purchase  price  and  taxes  on  land  is  unenforcible. 

Cited  in  notes  (115  Am.  St.  Rep.  778)  on  creation  of  trusts  in  land  by  parol; 
(39  L.R.A.  (N.S.)  912,  928)  on  grantee's  oral  promise  to  grantor  as  giving  rise 
to  constructive  trust. 

Distinguished  in  Chamberlain  v.  Chamberlain,   7   Cal.  App.   636,  95  Pac.  659, 
holding  that  constructive  trust  arises  where  a  conveyance  is  induced  by  deceit 
and  fraudulent  representations. 
Parol   evidence  as   to   written   agreement. 

Cited  in  Langley  v.  Rodriguez,  122  Cal.  581,  G8  Am.  St.  Rep.  70,  55  Pac.  406, 
holding  evidence  admissible  that  oral  agreement  to  induce  execution  of  written 
agreement  was  made  without  any  intention  of  performing  it. 

Cited  in  notes  (5  L.  R.  A.  596)  on  oral  evidence  of  consideration  in  sealed  in- 
strument; (6  L.  R.  A.  34)  on  parol  evidence  to  contradict  consideration  of  con- 
tract; (20  L.R.A.  108)  on  parol  evidence  as  to  consideration  of  deed;  (20  L.R.A. 
108;  14  Eng.  Rul.  Cas.  754)  on  parol  evidence  as  to  consideration  of  deed;  (15 
Am.  St.  Rep.  715)  on  parol  evidence  as  to  writings. 

Distinguished  in  Brooks  v.  Union  Trust  &  Realty  Co.  146  Cal.  137,  79  Pac.  843, 
holding    parol    evidence    admissible    to   establish    resulting   trust    under    statute 
though  consideration  be  expressed. 
Estoppel    by    recital. 

Cited  in  Chaff ee  v.  Browne,  109  Cal.  220,  41  Pac.  1028,  holding  recital  in  mort- 
gage on  separate  property  of  married  woman,  that  she  and  her  husband  were 
jointly  and  severally  indebted  for  goods  for  purchase  price  of  which  it  was  given, 
not  binding  on  her. 
Necessity  of  pleading:  statute  of  frauds. 

Cited  in  Hamilton  v.  Thirston,  93  Md.  220.  48  Atl.  709,  holding  statute  of 
frauds  need  not  be  pleaded  when  contract  is  denied  by  answer;  Williams-Hay  ward 
Shoe  Co.  v.  Brooks,  9  Wyo.  430,  64  Pac.  342,  holding  statute  of  frauds  need  not  be 
pleaded  in  action  on  oral  contract  for  sale  of  goods ;  Bickle  v.  Irvine,  9  Mont. 
253,  23  Pac.  244,  holding  facts  constituting  fraud  must  be  pleaded;  Israel  v.  Day. 
17  Colo.  App.  207,  68  Pac.  122,  holding  defense  of  sale  to  plaintiff  in  violation  of 
statute  of  frauds,  admissible  under  general  denial  in  replevin;  Hodgkins  v.  Dun- 
ham, 10  Cal.  App.  698,  103  Pac.  351,  holding  that  where  facts  alleged  show  the 
intent  to  deceive,  it  need  not  be  alleged  in  express  words;  Bickle  v.  Irvine,  9 
Mont.  253,  23  Pac.  244,  holding  facts  showing  constructive  fraud  not  admis- 
sible under  general  denial;  Bleyer  v.  Bleyer,  219  Mo.  121,  117  S.  W.  709,  on 
burden  of  proof  where  fraud  and  also  fiduciary  relationship  appears. 

Cited  in  note  in  78  Am.  St.  Rep.  654.  as  to  when  and  how  statute  of  frauds 
must  be  pleaded. 
Pleading:  ultimate   facts. 

Cited  in  Simons  v.  Bedell,  122  Cal.  346,  68  Am.  St.  Rep.  35,  55  Pac.  3,  holding 
rule  requiring  pleading  of  ultimate  facts  instead  of  evidentiary  facts,  not  violated 
in  complaint. 
Future   promises  as   fraud. 

Cited  in  note   (10  L.R.A.  (X.S. )  641)   on  future  promise  as  fraud. 


781  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  835 

4  L.  R.  A.  831,  LANG  v.  LYNCH,  38  Fed.  489. 
Regulations  of  commerce  In  intoxicating;  liquors. 

Cited  in  Hart  v.  State,  87  Miss.  179,  112  Am.  St.  Rep.  437,  39  So.  523,  holding 
act  making  it  misdemeanor  to  act  as  agent  for  buyer  or  seller  of  intoxicating 
liquors  within  territory  where  sale  is  prohibited,  not  violative  of  commerce  clause 
of  constitution;  State  v.  Delamater,  20  S.  D.  33,  8  L.R.A. (N.S.)  779,  129  Am.  St. 
Rep.  907,  104  N.  W.  537,  on  taking  orders  for  intoxicating  liquors  as  constitut- 
ing part  of  transaction  of  sale;  Jones  v.  Yokum,  24  S.  D.  183,  123  N.  W.  272, 
holding  that  law  require  license  by  wholesale  liquor  dealers  applies  to  nonresi- 
dent dealers  selling  through  traveling  salesmen. 

Cited  in  notes  (7  L.  R.  A.  183)  on  validity  of  statutes  relating  to  imported 
liquor;  (15  L.  R.  A.  837)  on  right  to  recover  price  of  intoxicating  liquor  sold  for 
illegal  uses;  (61  L.  R.  A.  427)  on  conflict  of  laws  as  to  sales  of  intoxicating 
liquors;  (15  L.R.A. (N.S.)  928)  on  constitutional  right  to  prohibit  sale  of  intoxi- 
cants. 

4  L.  R.  A.  832,  TUTEUR  v.  CHASE,  66  Miss.  476,  14  Am.  St.  Rep.  577,  6  So.  241. 
Notice    of    fraud. 

Cited  in  Fluegel  v.  Henschel,  7  N.  D.  279,  66  Am.  St.  Rep.  642,  74  N.  W.  996, 
holding  vendee  under  no  duty  to  inquire  into  motives  or  circumstances  of  vendor 
unless  circumstances  put  prudent  men  on  inquiry;  Graham  v.  Morgan,  83  Miss. 
605,  35  So.  874,  holding  conveyance  by  husband  to  wife  in  satisfaction  of  valid 
indebtedness  valid  as  against  another  creditor. 

Cited  in  notes  (6  L.  R.  A.  151)  on  investigation  by  purchaser;  (9  L.  R.  A.  415) 
on  validity  of  voluntary  conveyances;  (32  L.  R.  A.  34,  46)  on  participation  by 
purchaser  in  fraud  of  vendor  which  will  invalidate  transfer  for  good  considera- 
tion as  against  the  vendor's  creditors;  (28  Am.  St.  Rep.  618)  as  to  when  volun- 
tary conveyances  are  fraudulent;  (34  Am.  St.  Rep.  399,  402)  OB  vendee's  knowl- 
edge as  affecting  validity  of  fraudulent  conveyance. 

4  L.  R.  A.  834,  WHITFIELD  v.  MERIDIAN,  66  Miss.  570,  14  Am.  St.  Rep.  596, 

6  So.  244. 
Streets;    duty   to   keep   in   repair. 

Cited  in  notes  (10  L.R.A.  735)  on  duty  of  municipal  corporation  to  keep 
streets  and  sidewalks  in  safe  condition;  (20  L.R.A. (N.S.)  530,  706,  729)  on 
liability  of  municipality  for  defects  or  obstructions  in  streets;  (29  L.R.A. (N.S.) 
824)  on  duty  of  municipality  as  to  condition  of  rural  highway  within  its  limits; 
(30  Am.  St.  Rep.  385;  103  Am.  St.  Rep.  260,  264,  266,  281,  108  Am.  St.  Rep. 
151)  on  municipal  liability  to  persons  injured  by  defects  in,  or  want  of  repair 
of,  streets. 
Notice  of  defects. 

Cited  in  Bradford  v.  Anniston,  92  Ala.  351,  25  Am.  St.  Rep.  60,  8  So.  683, 
holding  notice  to  strat  overseer  of  defect  in  street  is  notice  to  city. 

Cited  in  notes  (10  L.R.A.  740)  on  proof  of  corporation's  notice  of  defect  in 
street  essential  to  recovery  for  personal  injury;  (30  Am.  St.  Rep.  525)  on  notice 
of  defects  in  streets. 

4  L.  R.  A.  835,  PEARSON  v.  STATE,  66  Miss.  510,  6  So.  243. 
Intoxicating;   liquors;    sales   in   places   prohibited. 

Cited  in  State  v.  Shields,  110  La.  556,  34  So.  673,  holding  sales  of  liquor  on  out- 
side orders  take  place  upon  delivery  of  goods  to  carrier  for  shipment;  Anglin  v. 
State.  96  Miss.  221,  50  So.  728,  holding  that  sale  is  made  in  state  where  seller 
delivered  liquor  to  buyer,  though  buyer  went  into  seller's  state  and  ordered  and 


4  LJLA.  835]  L.  R.  A.  CASES  AS  AUTHORITIES. 

paid  for  it  there;  Hurley  v.  Corinth,  97  Miss.  408,  52  So.  695,  holding  that  sale  is 
nude  in  state,  where  order  front  outside  state  is  filled  by  delivery  of  liquor  to 


Cited  in  footnotes  to  Com.  T.  Fleming,  5  L.  B.  A.  470,  which  holds  delivery  of 
liquors  to  carrier  to  be  sent  C.  O.  D.  at  place  where  seller  licensed  to  fill  orders 
by  mail,  from  other  places,  not  illegal;  State  v.  Cairns,  53  L.  K-  A.  55,  which  de- 
nies guilt  of  express  company's  agent  delivering  to  consignee  goods  sent  C.  O.  D. 
with  reason  to  believe  they  are  liquors. 

Cited  in  note  (7  L.  R.  A.  184)  on  validity  of  statutes  relating  to  imported 
liquors. 

Distinguished  in  Hart  T.  State,  87  Miss.  182,  112  Am.  St.  Rep.  437,  39  So.  523, 
holding  person  guilty  of  illegal  sale  where  he  acted  as  agent  and  took  the  order 
pursuant  to  which  the  liquor  was  afterward  delivered. 
K«e«*   *f  delivery   *f  smm**  t*  cmrrier  •*••   title  »f   eoMi«m*r. 

Cited  in  Queen  City  Mfg.  Co.  T.  Blalaek,  —  Miss.  — ,  31  L.RJL  223,  18  So.  800, 
holding  delivery  of  goods  in  course  of  trade  to  carrier  for  shipment  out  of  state, 
came  to  remain  property  of  consignor  until  delivered,  is  "removal  of  goods  beyond 
the  state"  constituting  ground  for  attachment. 

Cited  in  note  (22  L  R.  A.  425)  on  passing  of  title  to  property  by  delivery  to 
carrier  for  transportation. 

4  L.  R.  A.  836,  MT.  ACBURX  CEMETERY  v.  CAMBRIDGE,  150  Mass.  12,  22  N. 

EL  66. 
Validity  of  »peeial  m*mrm*^*mtm. 

Cited  in  Sears  T.  Boston,  173  Mass.  76,  43  L  R.  A.  836,  53  N.  E.  138,  holding 
street  sprinkling  an  improvement  for  which  abntter  may  be  assessed;  Sears  v. 
Street  Comrs.  173  Mass.  352,  53  X.  EL  876,  holding  act  authorizing  special  sewer 
assessment  irrespective  of  or  beyond  amount  of  special  benefits,  unconstitutional 
and  void;  Stevens  v.  Port  Huron,  149  Mich.  555,  113  X.  W.  291,  12  A.  t  EL  Ann. 
Cas.  603  (dissenting  opinion)  on  special  benefit  to  property  as  being  essential  tc 
justify  special  assessment. 
Exemption  <*•••  •peetal  mmmimmmmimt. 

Cited  in  Boston  v.  Boston  A  A.  R.  Co.  170  Mass.  99,  49  X.  EL  95,  holding  abut- 
ting land  within  railroad  right  of  way  nonassessable  for  highway  improvements; 
Re  Sixth  Ave.  59  Wash.  48,  109  Pac.  1052,  Ann.  Cas.  1912A,  1047,  holding  that 
lots  conveyed  by  private  cemetery  to  private  owners  are  exempt  from  local  im- 
provement assessments. 

Cited  in  note  (35  L.  R.  A.  37)  on  liability  to  local  assessments  for  benefits,  of 
property  exempt  from  general  taxation. 
BJ grh t»  i  •  eeMteterr  !•€». 

Cited  in  Anderson  v.  Acheson,  132  Iowa,  757,  9  L.RJMX-S.)  223,  110  X.  W. 
335,  holding  that  one  burying  his  dead  in  public  cemetery  under  license  acquires 
an  interest  which  continues  as  long  as  the  place  is  used  as  a  cemetery  and  his 
license  is  not  revoked  by  death. 

4  L  R.  A.  »40,  BILEC  v.  PAISLEY,  18  Or.  47,  21  Pac.  934. 
Effect  *r  ataeMee  *f  tmflmmmrtm. 

Cited  in  Strickland  v.  Geide,  31  Or.  378,  49  Pac.  982,  holding  not  necessary 
to  show  existence  of  lawful  indosure  before  damages  recoverable  for  trespass 
by  sheep;  Collins  v.  Lnndqnist,  154  Mich.  660,  118  X.  W.  596,  holding  land  owner 
not  bound  to  fence  against  trespassing  cattle  but  may  recover  for  any  damages 
done  by  them  regardless  off  absence  of  fence;  Pacific  Livestock  Co.  v.  Murray,  45 


783  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  UtA.  845 

Or.  1D7.  76  Pac.  1079,  holding  owner  of  sheep  trespassing  on  unfeneed  lands 
liable  for  damages  where  statute  requiring  fences  is  not  made  applicable  to 
sheep;  Harrison  v.  McClellan,  64  Misc.  433,  118  X.  Y.  Supp.  573;  Wood  v.  Snider, 
187  X.  Y.  31,  12  L.R_A.(X.S.)  914,  79  N.  E.  85S,  on  common  law  liability  for 
damages  caused  by  trespassing  animals  as  being  the  recognition  of  a  natural 
right  pertaining  to  ownership. 

Cited  in  note  (22  L.  R.  A.  57,  60)  as  to  liability  of  owner  for  trespass  of 
cattle. 

Distinguished  in  Monroe  v.  Cannon,  24  Mont.  325,  81  Am.  St.  Rep.  439,  61 
Pac.  863,  holding  owner  liable  for  deliberately  herding  sheep  on  another's  pas- 
ture, notwithstanding  statutory  liability  for  animals  breaking  into  fenced  in- 
closures. 
Validity  of  statute  requiring  fence. 

Cited  in  Poindexter  T.  May,  98  Va.  150,  47  L.  R.  A.  592,  34  S.  E.  971,  holding 
statute  denying  landowner  any  recovery  for  trespass  by  animjilq  unless  lawfully 
fenced,  valid. 
Liability  of  agrent   hiring  servants. 

Cited  in  note  (37  L.  R.  A.  49)  on  which  of  two  or  more  persons  is  the  master 
of  another  who  is  hired  by  an  agent. 
Title    necessary    to    maintain    trespaaa. 

Cited  in  Kunkel  v.  Utah  Lumber  Co.  29  Utah,  22,  81  Pac.  897,  4  A.  A  E.  Ann. 
Caa.  187,  holding  actual  possession  under  tax  deed  sufficient  to  maintain  tres- 
pass against  one  without  any  title. 

Cited  in  note  (30  LJLA.(X.S.)  254)  on  necessity  and  character  of  title  or 
possession  to  sustain  action  of  trespass. 

4  L.  R.  A.  845,  PEOPLE  v.  STEPHEXS,  79  CaL  428,  21  Pac.  856. 

Former    judgment. 

Cited  in  People  v.  McDaniels,  137  Cal.  195,  59  L.  R.  A.  579,  92  Am.  St.  Rep. 
81,  69  Pac.  1006,  holding  conviction  of  battery  bars  subsequent  prosecution  for 
lesser  offense  included  therein;  People  T.  Defoor.  100  Cal.  155,  34  Pac.  642, 
holding  conviction  of  assault  bar  to  prosecution  for  mayhem  committed  during 
same  assault;  Cook  v.  State,  43  Tex.  Crlm.  Rep.  188,  96  Am.  St.  Rep.  854,  63 
S.  W.  872,  holding  that  upon  contradictory  evidence,  question  whether  trans- 
action was  one  and  the  same  act  is  for  jury  under  plea  of  former  acquittal. 

Cited  in  footnotes  to  People  v.  McDaniels,  59  L.  R.  A.  578,  which  holds  prose- 
cution for  assault  to  commit  murder  barred  by  conviction  of  battery  for  same 
acts;  Xissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant  words  spoken  by 
party  to  action  during  trial  privileged;  Xordlinger  v.  United  States,  70  L.R.A. 
227,  which  holds  acquittal  of  larceny  of  piano  bar  to  subsequent  prosecution  for 
same  offense  except  that  instrument  is  described  as  an  auto-electric  piano  or  auto- 
elect  ra. 

Cited  in  notes  (9  L.R.A.  621)  as  to  libel  and  slander;   (92  Am.  St.  Rep.  123) 
on  identity  of  offenses  on  plea  of  former  jeopardy. 
Splitting  «P  otfenses. 

Cited  in  People  v.  Bunkers,  2  CaL  App.  204,  84  Pac.  364.  holding  that  per- 
son guilty  of  a  crime  can  not  also  be  found  guilty  as  an  accomplice  upon  the 
same  overt  acts. 

Distinguished  in  United  States  v.  Howell,  65  Fed.  407,  holding  that  indict- 
ment for  having  in  possession  counterfeit  coin  may  be  split  up  into  several 
counts  each  alleging  possession  of  different  denomination  of  coins. 


4  L.R.A.  848]  L.  R.  A.  CASES  AS  AUTHORITIES.  784 

4  L.  R.  A.  848,  PHOENIX  INS.  CO.  v.  COPELAND,  86  Ala.  551,  6  So.  143. 

Third  appeal  in  90  Ala.  616,  38  Am.  St.  Rep.  134,  11  So.  746. 
Effect   of   sustaining   demurrer. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Davis,  91  Ala.  493,  8  So.  552,  refusing  to 
reverse  for  error  in  sustaining  demurrer  to  special  plea  of  matters  of  which 
defendant  had  full  benefit  under  general  issue;  Powell  v.  Henry,  96  Ala.  415, 
11  So.  311,  and  Louisville  &  N.  R.  Co.  v.  Trammell,  93  Ala.  353,  9  So.  870, 
holding  sustaining  demurrer  to  special  plea  not  prejudice  where  matter  therein 
was  equally  available  under  general  issue. 
Harmless  error. 

Cited  in  note  (11  Am.  St.  Rep.  288)   on  harmless  error. 
Estoppel  to  avoid  policy. 

Cited  in  Commercial  Union  Assur.  Co.  v.  Ryalls,  169  Ala.  538,  53  So.  754  (dis- 
senting opinion),  on  estoppel  of  company  to  avoid  policy,  where  insured  fully 
informs  agent  of  true  state  of  title. 

Cited  in  notes  (16  L.R.A.(N.S.)   1225)   on  parol  evidence  rule  as  to  varying  or 
contracting  written  contracts,  as  affected  by  doctrine  of  estoppel  as  applied  to 
insurance  policies;    (29  Am.  St.  Rep.  909)    on  estoppel  to  avoid  policy  for  en- 
cumbrances on  insured  property. 
Force  of  agent's  subsequent  admissions. 

Distinguished  in  Liverpool  &  L.  &  G.  Ins.  Co.  v.  Tillis,  110  Ala.  211,  17  So. 
672,   holding  special   adjuster   with   authority  of  general   adjuster   waived    con- 
dition of  formal  proofs  of  loss  by  denying  insurer's  liability. 
Notice. 

Cited  in  Pope  v.  Glens  Falls  Ins.  Co.  130  Ala.  359,  30  So.  496,  and  Western 
Assur.  Co.  v.  Stoddard,  88  Ala.  611,  7  So.  379,  both  holding  notice  of  extent  of 
applicant's  ownership  to  insurance  agent  pending  negotiation,  is  notice  to  in- 
surer; London  &  L.  F.  Ins.  Co.  v.  Fischer,  34  C.  C.  A.  505,  92  Fed.  502,  holding 
condition  of  insurance  policy  against  encumbrances  waived  by  delivery  with 
knowledge  thereof  by  agent  authorized  to  withhold  or  deliver  it;  Liberty  Ins. 
Co.  v.  Boulden,  96  Ala.  513,  11  So.  771,  holding  condition  of  fire  policy  to  be 
void  if  insured  not  unconditional  and  sole  owner,  not  avoided  by  notice  to  agent 
that  applicant  had  only  a  bond  for  title,  and  not  a  deed. 

Cited  in  notes    (8  L.  R.  A.  719)    on  notice  of  termination  of  contract  of  in- 
surance;   (16  L.  R.  A.  34)   as  to  effect  of  knowledge  by  insurer's  agent  of  falsity 
of  statements  in  application. 
Effect    of    other    insurance. 

Cited  in  Arnold  v.  St.  Paul,  F.  &  M.  Ins.  Co.  106  Tenn.  532,  61  S.  W.  1032. 
holding  policy  taken  out  by  insured's  agent  with  condition  against  additional 
insurance,  invalidated  by  subsequent  insurance  without  knowledge  of  agent's 
act. 

Cited  in  footnote  to  State  Ins.  Co.  v.  Schreck,  6  L.  R.  A.  524,  which  holds 
policy  on  all  personalty  without  specifying  it,  avoided  by  transfer  of  title,  only 
as  to  property  encumbered  at  time  of  loss. 

Cited  in  notes    (10  L.  R.  A.   145)    on  cancelation  of  contracts  of  insurance: 
(11  L.  R.  A.  345)  on  contracts  of  fire  insurance;    (5  L.  R.  A.  638)   as  to  varying 
terms  of  insurance  contract. 
Declarations  of  agent  to  prove  agency. 

Cited  in  note  ( 16  Am.  St.  Rep.  199 )  on  declarations  of  agent  to  prove  agency. 
Latitude  on  cross-examination. 

Cited  in  Long  v.  Booe,  10G  Ala.  580,  17  So.  716,  holding  latitude  of  cross- 
examination  within  discretion  of  court. 

Cited  in  note   (14  Am.  St.  Rep.  480)   on  cross-examination  of  witnesses. 


785  L.  R.  A.  CASES  AS  AUTHORITIES.  [4  L.R.A.  850 

Impeachment  of  witnesses. 

Cited  in  Ott  v.  State,  160  Ala.  33,  49  So.  810,  holding  evidence  admissible,  on 
question  of  bias  of  witness,  showing  that  he  tried  to  prevent  certain  justices 
from  presiding  at  the  trial. 

4  L.  R.  A.  850,  BRAZIL  BLOCK  COAL  CO.  v.  GAFFNEY,  119  Ind.  455,  12  Am. 

St.  Rep.  422,  21  N.  E.  1102. 
Imputing;    negligence. 

Cited  in  Williams  v.  South  &  North  Ala.  R.  Co.  91  Ala.  639,  9  So.  77,  hold- 
ing father   suing  to  recover  for  injuries  to  infant  son  during  employment  re- 
sponsible for  latter's  contributory  negligence,  only  if  he  consented  to   perilous 
employment. 
Duty    to    warn    servant. 

Cited  in  Stewart  v.  Patrick,  5  Ind.  App.  53,  30  N.  E.  814,  holding  master  liable 
for  injury  to  inexperienced  boy  put  at  dangerous  machine  without  warning  as 
to  danger;  Thomas  Madden,  Son  &  Co.  v.  Wilcox,  174  Ind.  665,  91  N.  E.  933, 
holding  that  ordering  inexperienced  boy,  without  warning  or  instruction,  to 
operate  towpicker  is  negligence;  Vanesler  v.  Moser  Cigar  &  Paper  Box  Co.  108 
Mo.  App.  629,  84  S.  W.  201,  holding  it  to  be  the  duty  of  employer  to  instruct 
minor  ten  years  of  age  when  employed  in  dangerous  place;  Laporte  Carriage 
Co.  v.  Sullender,  165  Ind.  298,  75  X.  E.  277,  holding  allegation  showing  necessity 
of  warning  or  instruction  essential  in  order  to  hold  master  liable  for  failure  to 
warn  or  instruct. 

Cited  in  footnotes  to  Ciriack  v.  Merchants  Woolen  Co.  6  L.  R.  A.  733,  which 
holds  master  not  bound  to  warn  twelve-year  old  servant  of  danger  from  cog 
wheels  in  plain  sight;  Holland  v.  Tennessee  Coal,  Iron  &  R.  Co.  12  L.  R.  A. 
232.  which  holds  it  master's  duty  to  warn  servant  of  danger  of  flying  iron  when 
boil  of  iron  punctured;  Tennessee  Coal,  Iron  &  R.  Co.  v.  Kyle,  12  L.  R.  A.  103, 
which  holds  running  freight  train  without  cow-catcher  negligence;  Fisher  v. 
Oregon  Short  Line  &  U.  N.  R.  Co.  16  L.  R.  A.  519,  holding  it  section  foreman's 
duty  to  notify  conductor  of  approaching  train,  of  snowslide. 

Cited  in  notes  (12  L.  R.  A.  344)  as  to  duty  and  obligation  of  master;  (7  L. 
R.  A.  172)  as  to  master's  duty  not  to  expose  servant  to  extraordinary  risks; 
(8  L.  R.  A.  636)  as  to  effect  of  servant's  knowledge  of  defective  and  dangerous 
machinery;  (8  L.  R.  A.  819)  as  to  master's  duty  to  instruct  servant  in  use  of 
dangerous  machinery. 
Liability  for  injury  outside  scope  of  employment. 

Cited  in  note  (48  L.  R.  A.  799,  806)  on  liability  for  injuries  received  by  the 
servant  in  the  performance  of  duties  outside  the  scope  of  his  original  contract. 
Risks  assumed  by  servant. 

Cited  in  Cudahy  Packing  Co.  v.  Marcan,  54  L.  R.  A.  258,  which  holds  risk  of 
block  on  which  minor  employee  works  slipping  on  greasy  floor  assumed;  Marino 
v.  Lehmaier,  61  L.  R.  A.  811,  which  holds  risk  of  employment  not  assumed 
per  se,  by  child  whose  employment  is  forbidden  because  of  immature  age. 

Cited  in  notes  (24  Am.  St.  Rep.  323)  on  servant's  right  to  rely  on  master's  su- 
perior knowledge  of  risk;  (87  Am.  St.  Rep.  578,  580)  on  assumption  of  risk. 

Distinguished  in   Levey  v.   Bigelow,   6   Ind.  App.   699,  34  N.  E.   128,  holding 
master  not  liable  to  infant  employee  who  voluntarily  exposes  himself  to  obvi- 
ous danger  fully  appreciated,  without  notice. 
L.R.A.  Au.  Vol.  L— 50. 


4  L.R.A.  858]  L.  R.  A.  CASES  AS  AUTHORITIES.  786 

4  L.  R.  A.  858,  MEMPHIS  &  C.  R.  CO.  v.  GREER,  87  Tenn.  698,  11  S.  W.  931. 
Equitable  set-off. 

Cited  in  Central  Appalachian  Co.  v.  Buchanan,  33  C.  C.  A.  607,  62  U.  S.  App. 
195,  90  Fed.  462,  holding  claim  against  insolvent  subject  of  equitable  set-off, 
although  unliquidated;  De  Laval  Separator  Co.  v.  Sharpless,  134  Iowa,  30,  111 
N.  W.  438,  holding  that  court  of  equity  will  decree  a  set-off  in  favor  of  judg- 
ment debtor  in  action  by  assignee  of  judgment,  where  the  assignor  is  insolvent, 

Cited  in  notes  (10  L.  R.  A.  378)  as  to  right  of  set-off;  (9  L.  R.  A.  108)  on 
set-off  of  unliquidated  cross-demand;  (10  L.  R.  A.  378)  as  to  rule  concerning 
equitable  cross-demands;  (12  L.  R.  A.  321)  as  to  set-off  for  damage  by  negli- 
gence and  want  of  skill  in  performance  of  services;  (31  L.  R.  A.  765,  767)  on 
injunctions  against  judgments  for  defenses  existing  prior  to  their  rendition;  (47 
Am.  St.  Rep.  594)  on  equitable  set-off  after  insolvency. 
Agent's  liability  for  misfeasance. 

Cited  in  Kirkeys  v.  Crandall,  90  Tenn.  538,  18  S.  W.  246,  holding  agent  to 
procure  acceptance  liable  to  principal  for  loss  from  taking  acceptance  from 
officer  known  to  him  to  be  unauthorized  therefor. 

4  L.  R.  A.  863,  HUGHES  v.  RECORDER'S  COURT,  75  Mich.  574,  13  Am.  St. 

Rep.  475,  42  N.  W.  984. 
Regulation  of  truck  marketing. 

Cited  in  People  v.  Keir,  78  Mich.  104,  43  N.  W.  1039,  holding  ordinance  for- 
bidding market  wagons  standing  in  street  to  be  moved  ouly  when  produce  sold 
out,  within  power  to  prevent  obstructions;  Hutchins  v.  Durham,  118  N.  C.  469, 
32  L.  R.  A.  707,  24  S.  E.  723,  holding  occupant  of  market  stall  under  ordinance 
reserving  discretionary  power  of  revocation,  licensee,  and  not  lessee. 

Cited  in  notes  (24  L.R.A.  584)  as  to  market  regulations  restricting  sales; 
(16  Am.  St.  Rep.  584)  on  municipal  ordinances;  (23  Am.  St.  Rep.  584)  on  power 
of  municipality  to  establish  and  regulate  markets. 

Distinguished  in  Grand  Rapids  v.  Braudy,   105  Mich.   678,  32  L.  R.  A.   121, 
55  Am.  St.  Rep.  472,  64  N.  W.  29,  holding  arbitrary  power  of  revocation  of  li- 
cense of  junk-dealer  may  be  reserved  in  ordinance  regulating  license. 
Prohibition    ugainst    criminal    prosecutions. 

Cited  in  Crittenden  v.  Booneville,  92  Miss.  285,  131  Am.  St.  Rep.  518,  45 
So.  723,  holding  that  prohibition  lies  to  prevent  prosecutions  for  violations  of 
void  ordinance  against  operation  of  pool  room. 

Cited  in  notes  37  L.R.A.  (N.S. )  449,  on  prohibition  to  prevent  numerous  un- 
founded prosecutions  for  alleged  violation  of  statute  or  ordinance;  (111  Am.  St. 
Rep.  935,  952)  on  writ  of  prohibition  against  criminal  prosecutions. 


L.  R  A.  CASES  AS  AUTHORITIES. 


OASES    IN    5    L.    E.    A. 


5  L.  R.  A.  33,  STRATTON  v.  PHYSIO-MEDICAL  INST.  149  Mass.  505,  14  Am. 

St.  Rep.  442,  21  N.  E.  874. 
What  are  beqneats  to  pnbllc  charity. 

Cited  in  Greer  County  v.  Texas,  197  U.  S.  242,  49  L.  ed.  738,  25  Sup.  Ct.  Rep. 
437,  on  a  grant  of  public  school  lands  creating  a  public  charity;  Webber  Hos- 
pital Asso.  v.  McKenzie,  104  Me.  328,  71  Atl.  3032,  holding  a  hospital  which  is 
owned  by  private  persons  is  not  a  charitable  institution,  though  it  indirectly 
serves  a  charitable  end;  Hubbard  v.  Worcester  Art  Museum,  194  Mass.  290,  9 
L.R.A.(X.S.)  695,  80  N.  E.  490,  10  A.  &  E.  Ann.  Cas.  1025,  on  charitable  trust 
arising  by  implication  from  bequest  to  body  organized  for  such  purposes:  Re 
Shattuck,  193  N.  Y.  453,  86  N.  E.  455,  on  the  word  "educational"  as  describing 
a  charitable  purpose. 

Cited  in  footnotes  to  Re  Sellers  Chapel  M.  E.  Church,  11  L.  R.  A.  282,  which 
holds  trust  for  charitable  use  created  by  conveyance  to  trustees  for  erection  of 
church;  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  gift  of  free  public  li- 
brary in  great  city  charitable. 

Cited  in  notes    (5  L.  R.  A.  106)   on  what  are  public  charities;    (13  L.  R.  A. 
218)    on  legislative  power  over  administration  of  trusts  by  municipal  corpora- 
tions:   (63  Am.  St.  Rep.  250,  259)  on  what  are  charitable  uses  or  trusts. 
Uncertainty   In   charitable   grift. 

Cited  in  footnotes  to  Gambel  v.  Trippe,  15  L.  R?  A.  235,  whicli  holds  bequest 
to  trustees  to  pay  over  "to  some  Presbyterian  institution"  in  specified  city  void 
for  indefiniteness ;  Harrington  v.  Pier,  50  L.  R.  A.  307,  which  holds  bequest  for 
promotion  of  temperance  work  in  certain  city  not  fatally  indefinite;  People  ex 
rel.  Atty.  Gen.  v.  Dashaway  Asso.  12  L.  R.  A.  117,  which  holds  promotion  of 
cause  of  temperance  too  vague  description  of  purpose  for  which  corporation 
formed;  Johnson  v.  Johnson,  22  L.  R.  A.  179,  which  holds  devise  to  trustees  for 
some  charitable  purpose,  with  preference  for  something  of  educational  nature, 
bad  for  indefiniteness;  Woman's  Foreign  Missionary  Soc.  v.  Mitchell,  53  L.  R.  A. 
711,  which  holds  legacy  to  board  of  managers  of  Foreign  Missionary  Society  of 
M.  E.  Church  properly  paid  to  Woman's  Foreign  Missionary  Society  Thonpon 
v.  Brown,  62  L.  R.  A.  398,  holding  devise  of  fund  to  be  distributed  by  execute; 
to  poor,  in  his  discretion,  valid. 

Cited  in  notes  (12  L.R.A.  415)  on  charitable  uses  and  trusts;  (14  L.R.A.(N.S.) 
69,  108,  118)  on  enforcement  of  general  bequest  for  charity  or  religion. 

Distinguished  in  Haynes  v.  Carr,  70  N.  H.  483,  49  Atl.  638,  holding  devise 
to  trustees  for  benefit  of  "the  poor  and  destitute  of  the  state,"  and  "for  charitable 
and  educational  purposes  therein,"  valid. 

787 


5  L.R.A.  33]  L.  R.  A.  CASES  AS  AUTHORITIES.  788 

Doctrine    of    cy    pres. 

Cited  in  Ely  v.  Atty.  Gen.  202  Mass.  548,  89  N.  E.  166,  holding  where  the 
founding  of  a  home  for  Deaf  Children  as  provided  by  the  will,  was  impracticable 
for  want  of  funds  to  support  it,  the  amount  would  be  given  to  an  established 
home,  for  the  same  service. 

Cited  in  footnotes  to  Adams  Female  Academy  v.  Adams,  6  L.R.A.  785,  which' 
authorizes  use  for  public  school  of  fund  bequeathed  to  establish  "female  acad- 
emy;" Kelly  v.  Nichols,  19  L.R.A.  413,  which  holds  doctrine  of  cy  pres  inappli- 
cable to  bequest  not  made  to  definite  charitable  use;  Teele  v.  Bishop  of  Derry,  38 
L.R.A.  629,  which  denies  right  to  divert  fund,  bequeathed  for  building  of  chapel 
which  people  became  too  poor  to  support,  for  repair  of  neighboring  parish  church ; 
Gladding  v.  St.  Matthew's  Church,  65  L.R.A.  225,  whicl:  holds  that  legacj  to  & 
particular  church  will  not  be  administered  cy  pres  after  termination  of  its  ex- 
istence in  behalf  of  deaf  mutes  for  whose  benefit  the  church  was. 
Authority  of  trustees  of  charity. 

Cited  in  note  (11  L.  R.  A.  214)  on  authority  of  trustees  for  charitable  use. 
Lapsing-  of  charitable  devise. 

Cited  in  Teele  v.  Bishop  of  Derry,  168  Mass.  343,  38  L.  R.  A.  631,  footnote  p. 
629,  60  Am.  St.  Rep.  401,  47  N.  E.  422,  holding  that  devise  to  erect  chapel  in  par- 
ticular village  lapses  where  population  too  poor  to  maintain  same  and  bishop  re- 
fuses to  assist;  Bullard  v.  Shirley,  153  Mass.  560,  12  L.  R.  A.  112,  27  X.  E.  766, 
holding  bequest  to  town  on  condition  that  it  support  clergyman  lapses  where  town, 
could  not  legally  support  same. 
Reversion  of  lapsed  devise. 

Cited  in  Lyman  v.  Coolidge,  176  Mass.  8,  56  N.  E.  831,  holding  share  of  devisee 
dying  before  testatrix  passes  as  intestate  estate  where  devisee  one  of  class  each 
taking  in  certain  proportion,  without  survivorship. 

5  L.  R.  A.  43,  MARSTOX  v.  BIGELOW,  150  Mass.  45,  22  X.  E.  71. 
Action  by  beneficiary  of  contract. 

Cited  in  Borden  v.  Boardman,  157  Mass.  413,  32  N.  E.  469,  holding  that  benefi- 
ciary in  contract  to  which  he  is  stranger  cannot  sue  obligor;  Saunders  v.  Saun- 
ders,  154  Mass.  338,  28  N.  E.  270,  holding  that  widow  cannot  sue  on  covenant  by 
defendant  with  husband,  and  "to  and  Avith  such  person  as  may  be  his  wife  at  time 
of  his  decease;"  White  v.  Mt.  Pleasant  Mills  Corp.  172  Mass.  464,  52  N.  E.  632, 
holding  that  minor,  on  repudiation  of  subscription  to  stock,  cannot  sue.  for  money 
had  or  received,  a  new  corporation  which,  under  an  agreement  with  the  original 
corporation,  has  issued  its  stock  to  the  shareholders  of  the  latter  in  lieu  of  the 
latter's  own  stock;  Knights  of  Modern  Maccabees  v.  Sharp,  163  Mich.  455,  33 
L.R.A.(N.S.)  783,  128  N.  W.  786,  to  the  point  that  person  who  is  not  party  to 
contract  cannot  sue  upon  it  at  law. 

Cited  in  notes  (25  L.  R.  A.  260,  268,  272)  on  right  of  third  party  to  sue  on 
contract  made  for  his  benefit;  (43  L.  R.  A.  472)  on  parties  to  contemporaneous 
agreements,  breach  of  which  urged  as  defense  to  promissory  note;  (39  Am.  St. 
Rep.  532)  on  promise  for  benefit  of  third  person;  (71  Am.  St.  Rep.  180,  204) 
on  right  of  third  person  to  sue  on  contract  made  for  his  benefit;  (1  Eng.  Rul. 
Cas.  398)  on  obligation  of  third  person  for  smaller  amount  as  a  satisfaction. 

Distinguished  in  Aldrich  v.  Carpenter,  160  Mass.  170,  35  X.  E.  456,  holding  that 
beneficiary  of  oral  agreement  may  sue  promisor  wrhere  case  is  tried  by  stipulation 
under  Rhode  Island  law:  Xash  v.  Com.  174  Mass.  337,  54  X.  E.  865,  holding  ma- 
terialman  may  sue  commonwealth  for  payment  under  public  contract  with 


789  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  45 

builder,  by  which  moneys  for  materials  are  reservable  by  commonwealth  for  such 

payment. 

Pretmmption    of   receipt    of    letter**    duly    mailed. 

Cited  in  Pitts  v.  Hartford  Life  &  Annuity  Ins.  Co.  66  Conn.  384,  50  Am.  St.  Rep. 
96,  34  Atl.  95,  holding  presumption  of  receipt  conclusive  in  absence  of  evidence 
to  contrary;  Conolidated  Coal  Co.  v.  Block  &  H.  Smelting  Co.  53  111.  App.  573, 
holding  that  presumption  arises  though  notice  required  by  express  contract:  Mc- 
Dowell v.  Aetna  Ins.  Co.  164  Mass.  446,  41  N.  E.  665,  holding  secondary  evidence 
of  letters  duly  mailed  admissible,  where  originals  not  produced  after  notice  nor 
evidence  of  nonreceipt  given;  Bostain  v.  De  Laval  Separator  Co.  92  Md.  487,  48 
Atl.  75,  holding  it  error  to  charge  jury  that  rejection  of  offer  must  be  made  with- 
in reasonable  time  after  sending,  instead  of  after  receipt,  of  letter,  where  no 
evidence  as  to  length  of  time  of  transmission. 

Cited  in  footnote  to  Ross  v.  Hawkeye  Ins.  Co.  34  L.  R.  A.  466,  which  holds 
notice  by  registered  letter  completed  by  due  registration  at  office  from  which  sent. 
Receipt  of  letter. 

Cited  in  Manitoba  Mortg.  &  Invest.  Co.  v.  Weiss,  18  S.  D.  465,  112  Am.  St.  Rep. 
799,  101  N.  W.  37,  5  A.  &  E.  Ann.  Gas.  858,  holding  that  the  question  as  to  the 
receipt  of  a  letter  was  for  the  jury,  where  the  evidence  was  conflicting. 

5  L.  R.  A.  45,  KANSAS  CITY  LAND  CO.  v.  HILL,  87  Tenn.  589,  11  S.  W.  797. 
Remedies  of  vendee. 

Cited  in  Curtis  v.  Brannon,  98  Tenn.  162.  38  S.  W.  1073,  holding  that  vendee 
cannot  recover  for  breach  of  covenant  of  seisin  without  returning  possession  of 
land;  McElya  v.  Hill,  105  Tenn.  329,  59  S.  W.  1025,  holding  evidence  of  insolvency 
of  vendor  competent  in  bill  by  vendee  to  rescind  sale  of  land,  since  only  remedy 
otherwise  is  on  covenants  in  deed;  Matthews  v.  Crowder,  111  Tenn.  740,  69  S.  W. 
779,  holding  where  grantors  in  a  deed  in  fee,  with  covenant  of  warranty,  have 
not  such  title,  the  grantee,  though  he  has  not  been  evicted,  may  sue  in  equity  for 
rescission,  where  grantor  is  insolvent. 

Cited  in  notes   (12  L.R.A.  246)   on  rights  and  remedies  of  vendee;    (21  L.R.A. 
(N.S.)    380)    on  right  of  grantee  in  possession  to  question  right  of  grantor  to 
collect  purchase  money. 
AVlm  t    are   vested   remainders. 

Cited  in  Sanders  v.  Byrom,  112  Tenn.  478,  79  S.  W.  1028,  holding  where  an  es- 
tate is  conveyed  in  trust  for  the  benefit  of  a  daughter  during  her  life  and  then 
to  her  children,  the  estate  to  the  children  is  a  vested  estate  to  the  class,  but 
not  to  any  one;  Archer  v.  Jacobs,  125  Iowa,  479,  101  N.  W.  195,  holding  the  un- 
certainty that  the  remainderman  will  outlive  the  life  tenant,  does  not  make  the 
remainder  contingent. 

Cited  in  footnotes  to  Starnes  v.  Hill,  22  L.R.A.  598,  which  holds  indefeasible 
fee  not  vested  in  one  to  whom  life  estate  given  with  estate  in  fee  to  his  "heirs:" 
Allison  v.  Allison,  63  L.R.A.  920,  which  holds  that  devise  of  remainder  at  death 
of  life  tenant  to  be  divided  among  testator's  heirs  at  law  refers  to  heirs  living 
at  testator's  death;  Bowen  v.  Hackney,  67  L.R.A.  441,  which  holds  that  no  estate 
vests  in  children  until  widow's  death  under  will  giving  life  estate  to  widow  and 
providing  that  at  her  death  that  given  to  her  for  life  shall  be  equally  divided 
between  all  the  children,  the  representatives  of  those  having  died  to  stand  in 
place  of  ancestors. 

Cited  in  note  (9  L.  R.  A.  213)  on  vested  remainders. 
Effect   of   uncertainty   of   remaindermen. 

Cited  in  Rutherford  v.  Rutherford,  116  Tenn.  388,  115  Am.  St.  Rep.  799,  92  S. 
W.  1112,  holding  there  can  be  no  partition  among  contingent  remaindermen. 


5  L.R.A.  45]  L.  R.  A.  CASES  AS  AUTHORITIES.  79» 

Constructive  notice  as  to  title. 

Cited  in  note  (21  Eng.  Rul.  Cas.  770)  on  purchaser  being  affected  with  con- 
structive notice  of  all  facts  which  would  have  been  discovered  by  requiring  usual 
title. 

5  L.  R.  A.  52,  THE  CITY  OF  CARLISLE,  39  Fed.  807. 
Care   of   seaman's   injuries    during   service. 

Cited  in  Olsen  v.  The  Scotland,  47  C.  C.  A.  335,  42  Fed.  927,  holding  vessel 
liable  for  failure  of  master  to  afford  opportunity  to  reset  dislocated  shoulder; 
Whitney  v.  Olsen,  108  Fed.  297,  holding  owners  of  vessel  liable  for  failure  of 
master  to  proceed  to  nearest  port,  where  third  mate  broke  leg  during  voyage. 

Cited  in  notes   (28  L.R.A.  552)   on  duty  of  master  to  furnish  medical  aid  to 
servant;    (31  Am.  St.  Rep.  806;  4  L.R.A. (N.S.)   72,  77)   on  duty  to  provide  medi- 
cal assistance  for  seaman. 
Admiralty  jurisdiction. 

Cited  in  Tracey  v.  The  Walter  D.  Wallet,  66  Fed.  1013,  holding  libel  for  dam- 
ages against  British  ship  by  British  sailor,  determinable  by  English  law,  not  en- 
tertained in  United  States  courts;  Pouppirt  v.  Elder  Dempster  Shipping,  122  Fed. 
987,  sustaining  admiralty's  jurisdiction  of  action  for  personal  injuries  sustained 
on  high  seas;  The  Ester,  190  Fed.  222,  to  the  point  that  where  special  circum- 
stances exist  courts  of  admiralty  will  take  jurisdiction  over  controversies  be- 
tween foreign  seamen  though  foreign  consul  protests. 
Joinder  of  causes. 

Cited  in  The  Clan  Graham,  153  Fed.  978,  holding  that  actions  for  personal 
injury  in  rem  against  a  vessel,  and  in  personam  against  the  stevedores,  though 
the  latter  are  neither  masters  nor  owners  of  the  vessel,  may  be  joined,  where 
the  injury  resulted  from  the  negligence  of  both. 

5  L.  R.  A.  61,  PARKER  v.  W7EST  COAST  PACKING  CO.  17  Or.  510,  21  Pac.  822. 
Riparian     rights. 

Cited  in  Hanford  v.  St.  Paul  &  D.  R.  Co.  43  Minn.  117,  7  L.  R.  A.  725,  44  N.  W. 
1144,  holding  riparian  right  to  use  of  public  water  extends  to  any  purpose  not  in- 
consistent with  public  right,  though  not  connected  with  use  of  navigable  water; 
Mills  v.  United  States,  12  L.  R.  A.  679,  46  Fed.  743,  holding  stoppage  of  flow  of 
canals  by  reason  of  elevation  of  flow  of  tide,  resulting  from  channel  improvements 
by  government,  damnum  absque  injuria  as  to  riparian  proprietor;  Hobart  v. 
Hall,  174  Fed.  451,  on  the  right  to  grant  riparian  rights. 

Cited  in  notes  (40  L.  R.  A.  602)  on  right  of  owner  of  upland  to  access  to  naviga- 
ble water;    (40  L.R.A.  643)   on  right  to  erect  wharves;    (19  Am.  St.  Rep.  232) 
on  rights  of  littoral  and  riparian  owners  in  navigable  waters;    (20  Am.  St.  Rep. 
136)  on  riparian  rights. 
Who  may  maintain   ejectment. 

Cited  in  Coquille  Mill  &  Mercantile  Co.  v.  Johnson,  52  Or.  554,  132  Am.  St. 
Rep.  716,  98  Pac.  132,  holding  that  ejectment  will  not  lie  for  possession  of  right 
to  continued  enjoyment  of  franchise  by  riparian  owner  to  operate  boom  in  navi- 
gable stream. 

Cited  in  notes  (18  L.R.A.  786)  on  what  title  or  interest  will  support  an  action 
of  ejectment;    (116  Am.  St.  Rep.  574,  577,  579)   on  property  or  invasion  of  pos- 
session for  which  ejectment  is  maintainable. 
Extent    of   ownership   of   tidal   land. 

Cited  in  Sage  v.  New  York,  154  N.  Y.  78,  38  L.  R.  A.  613,  61  Am.  St.  Rep.  592, 
47  N.  E.  1096,  holding  grant  by  state  of  riparian  land  contains  implied  reservation 


791  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  69 

of  right  to  improve  channel  for  navigation  without  compensation;  Eisenbach  v. 
Hatfield,  2  Wash.  282,  12  L.  R.  A.  651,  26  Pac.  539  (dissenting  opinion),  majority 
holding  riparian  proprietor  has  no  right  to  build  wharves  below  high-water  mark. 

Cited  in  footnotes  to  Webb  v.  Demopolis,  21  L.  R.  A.  62,  which  holds  riparian 
owner's  title  extends  to  low-water  mark  on  navigable  river;  St.  Louis,  I.  M.  &  S. 
R.  Co.  v.  Ramsey,  8  L.  R.  A.  559,  which  holds  title  to  land  under  navigable  river 
in  state. 

Cited  in  notes  (45  L.  R.  A.  239)  on  title  to  land  between  high-water  and  low- 
water  marks;  (16  L.  R.  A.  354)  on  ownership  of  flats  or  land  below  high-water 
mark;  (12  L.  R.  A.  677)  on  title  to  soil  under  navigable  waters;  (8  L.  R.  A.  91) 
on  littoral  owner's  right  to  soil  to  low-water  mark;  (12  L.  R.  A.  633,  636)  on 
qualified  property  in  water  front. 

Limited  in  Bowlby  v.  Shively,  22  Or.  422,  30  Pac.  154,  holding  that  grantee  of 
land  adjoining  navigable  water  by  deed  from  state  takes  only  to  high-tide  mark, 
without  right  to  erect  wharf  upon  tidal  flats  or  in  waters  beyond. 
Severability   of   appurtenant    rights. 

Cited  in  Montgomery  v.  Shaver,  40  Or.  250,  66  Pac.  923,  holding  wharf  rights 
of  riparian  owner  may  be  lost  through  adverse  possession  of  trespasser;  Miller 
v.  ^lendenhall,  43  Minn.  102,  8  L.  R.  A.  94,  19  Am.  St.  Rep.  219,  44  N.  W.  1141, 
holding  grantee  of  upland  lot  under  plan  for  development  of  tidal  flat,  which 
cuts  off  access  to  channel,  cannot  maintain  suit  in  equity  to  set  aside  deeds  of 
intervening  lots;  Hanford  v.  St.  Paul  &  D.  R.  Co.  43  Minn.  117,  7  L.  R.  A.  727, 
44  X.  W.  1144,  holding  condemnation  of  riparian  land  by  railroad  company  in- 
cludes riparian  rights,  and  authorizes  construction  of  right  of  way  so  as  to 
obstruct  access  to  upland. 

Cited  in  footnotes  to  Gilbert  v.  Eldridge,  13  L.  R.  A.  411,  which  authorizes  the 
severance  from  upland  of  riparian  right  to  reclaim  land  under  shallow  water; 
Hanford  v.  St.  Paul  &  D.  R.  Co.  7  L.  R.  A.  722,  which  authorizes  separate  transfer 
of  riparian  right  to  improve  and  reclaim  submerged  lands. 

Cited  in  notes  (8  L.  R.  A.  92)  on  alienation  of  riparian  right;  (40  L.  R.  A. 
393)  on  separation  of  riparian  rights  from  upland. 

5  L.  R.  A.  66,  HOWES  v.  UNITED  STATES,  24  Ct.  Cl.  170. 
Set-off. 

Cited  in  Labadie  v.  United  States,  33  Ct.  Cl.  480,  upholding  authority  of 
treasury  officers  to  set  off  indebtedness  due  from  claimant  against  judgment; 
Pennebaker  v.  United  States,  29  Ct.  Cl.  41,  holding  treasury  percentage  regulation 
allowed  to  attorney  for  prosecuting  claim  not  applicable  where  claimant  is  in 
arrears  with  United  States. 

Cited  in  footnote  to  Lauraglenn  Mills  v.  Ruff,  49  L.  R.  A.  448,  which  denies 
stockholder's  right  to  set  off  corporate  obligation  against  liability  as  shareholder 
in  action  at  law. 
Assignment    of    claims    against    government. 

Distinguished  in  Burke  v.  Davis,  63  Fed.  460,  holding  judgments  against  col- 
lectors for  excess  of  duties  not  claims  against  United  States  within  U.  S.  Rev. 
Stat.  §  3477,  U.  S.  Comp.  Stat.  1901,  p.  2320. 

5  L.  R.  A.  69,  ROMERO  v.  UNITED  STATES,  24  Ct.  Cl.  331. 
Claims   for  salary  by  officers   de   facto. 

Cited  in  Morey  v.  United  States,  35  Ct.  Cl.  605,  and  Belcher  v.  United  States, 
34  Ct.  Cl.  422.  holding  legal  right  of  officer  to  salary  depends  upon  his  being  an 
officer  de  jure;  Jackson  v.  United  States,  42  Ct.  Cl.  41,  holding  that  legal  title 


5  L.R.A.  G9]  L.  R.  A.  CASES  AS  AUTHORITIES.  792 

to  salary  attached  to  office  depends  upon  being  de  jure  an  officer;  State  ex  rel. 
Workman  v.  Goldthait,  172  Ind.  224,  87  N.  E.  133,  holding  member  of  tax- ferret 
commission  can  not  recover  for  services  under  the  contract,  as  he  was  not  an 
officer  de  jure. 

Cited  in  note  (32  L.R.A.  (N.S.)   949)   on  right  of  de  facto  officer  to  salary. 

5  L.  R.  A.  71,  Re  CRAWFORD,  113  N.  Y.  560,  21  N.  E.  692. 

What    constitutes    trust. 

Cited  in  Wadd  v.  Hazelton,  137  X.  Y.  219,  21  L.  R.  A.  698,  33  Am.  St.  Rep.  707, 
33  N.  E.  143,  holding  that  assignment  of  bond  and  mortgage  without  delivery 
does  not  amount  to  declaration  of  trust;  Hamer  v.  Sid  way,  57  Hun,  237,  11  N.  Y. 
Supp.  182,  holding  declaration  of  trust  not  disclosed;  Von  Hesse  v.  MacKaye, 
62  Hun,  463,  17  N.  Y.  Supp.  55,  holding  valid  trust  in  third  person  created  by 
donor  delivering  bonds  to  trustee  whose  receipt  contains  declaration  of  trust 
although  donor  retains  control  to  time  of  his  death ;  Phipard  v.  Phipard,  55  Hun, 
436,  8  N.  Y.  Supp.  728,  holding  that  policy  of  insurance  was  shown  to  be  held 
an  trust  for  children  by  written  declaration  that  it  was  for  their  benefit;  Cun- 
ningham v.  Davenport,  74  Hun,  55,  26  N.  Y.  Supp.  322,  holding  that  deposit  in 
one's  own  name  in  trust  for  brother  constitutes  trust;  Re  Pilsbury,  51  Misc.  381, 
99  N.  Y.  Supp.  62,  holding  where  an  indorsement  on  an  envelope  containing 
bonds  indicates  an  intention  to  make  a  gift,  which  fails  for  want  of  delivery, 
the  court  will  not  construe  the  transaction  as  a  trust. 

Cited  in  footnote  to  Say  re  v.  Weil,  15  L.  R.  A.  544,  which  holds  irrevocable  a 
•deposit  to  one's  self  as  trustee  for  specified  children. 

Cited  in  notes  (6  L.R.A.  405)  on  deposit  of  fund  in  trust  for  another;  (34 
Am.  St.  Rep.  210,  223)  on  voluntary  trusts  arising  from  declarations  of  trustor. 

Distinguished  in  Millard  v.  Clark,  80  Hun,  151,  29  N.  Y.  Supp.  1012,  holding 
deposit  in  name  of  another  subject  to  control  of  depositor,  coupled  with  declara- 
tion of  trust,  indicate  control  as  that  of  trustee. 
What    constitutes    gift. 

Cited  in  Richardson  v.  Emmett,  61  App.  Div.  211,  70  N.  Y.  Supp.  546,  holding 
transfer  of  stock  valid  gift;  Wadd  v.  Hazelton,  137  N.  Y.  219,  21  L.  R.  A.  698, 
33  Am.  St.  Rep.  707,  33  N.  E.  143,  holding  deposit  by  father  in  name  of  servant 
aiot  gift;  Beaver  v.  Beaver,  137  N.  Y.  66,  32  N.  E.  998,  Reversing  62  Hun,  204, 
16  N.  Y.  Supp.  479,  holding  deposit  in  son's  name  not  shown  to  be  gift;  Hamer 
v.  Sidway,  57  Hun,  234,  11  N.  Y.  Supp.  182,  holding  declaration  of  intention  to 
give  does  not  constitute  gift  in  absence  of  delivery;  BrowTn  v.  Blackman,  71  Hun, 
360,  25  N.  Y.  Supp.  15,  holding  that  assignment  and  record  of  bond  and  mortgage 
in  daughter's  name,  with  receipt  by  her  of  amount  in  full  of  legacy,  evidenced 
valid  gift;  Bettinger  v.  Van  Alstine,  79  Hun,  524,  29  N.  Y.  Supp.  904,  holding 
that  deeds  executed  to  parties  without  consideration,  delivered  to  and  recorded 
by  third  party,  did  not  amount  to  gift;  Telford  v.  Patton,  144  111.  627,  33  N.  E. 
1119,  holding  certificate  of  deposit  in  another's  name,  but  retained  by  depositor, 
not  gift;  Liebe  v.  Battmann,  33  Or.  245,  72  Am.  St.  Rep.  705,  54  Pac.  180, 
liolding  indorsement  of  note  and  placing  it  in  sealed,  addressed  envelope  on  table 
by  one  about  to  die  does  not  constitute  gift;  Beaver  v.  Beaver,  117  N.  Y.  432, 
C  L.  R.  A.  408,  15  Am.  St.  Rep.  531,  22  N.  E.  940,  holding  constructive  delivery 
to  son  of  deposit  in  his  name  not  shown;  Williamson  v.  Johnson,  62  Vt.  381, 
D  L.  R.  A.  278,  22  Am.  St.  Rep.  117,  20  Atl.  279,  holding  gift  of  money  to  enable 
fiancee  to  prepare  for  marriage  revocable  by  breaking  off  of  engagement;  Re 
Holmes,  79  App.  Div.  266,  79  N.  Y.  Supp.  592,  holding  delivery  of  pass  book  to 
one  who  draws  checks  on  deposit,  irrevocable  gift;  Allen- West  Commission  Co. 
r.  Grumbles,  129  Fed.  290,  holding  delivery  of  assignment  of  stock,  donor  retaining 


7U3  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  78 

certificates,  ineffective;  West  v.  McC'ullough,  123  App.  Div.  854,  108  N.  Y.  Supp. 
493  (dissenting  opinion),  on  sufficiency  of  delivery  to  constitute  gift;  C^irlon  v. 
Ryan,  73  Misc.  602,  133  N.  Y.  Supp.  629,  holding  that  indorsement  and  delivery 
of  note  to  third  person  with  written  instructions  to  deliver  it  to  certain  person 
upon  indorsee's  death  as  gift,  constitutes  gift  on  such  delivery. 

Cited  in  footnotes  to  Williamson  v.  Johnson,  9  L.  R.  A.  277,  which  holds  gift 
to  enable  fiancee  to  pay  wedding  expenses,  conditional  on  marraige;  Porter  v. 
Woodhouse,  13  L.  R.  A.  64,  which  holds  warranty  deeds  not  delivered,  by  donor 
giving  to  third  person;  Gammon  Theological  Seminary  v.  Robbins,  12  L.  R.  A. 
506,  which  holds  instrument  declaring  that  holder  gives  note,  insufficient  as 
gift  where  he  retains  possession. 

Cited  in  notes  (11  L.  R.  A.  684)  on  delivery  and  retention  essential  to  validity 
of  gift;  (21  L.  R.  A.  693)  on  undelivered  written  transfer  or  assignment  of 
property  as  a  gift;  (19  L.  R.  A.  700)  on  delivery  of  bank  book  to  sustain  gift  of 
money  in  bank;  (12  Eng.  Rul.  Cas.  435)  on  necessity  of  delivering  gift  inter 
vivos. 
Sufficiency  of  delivery  of  deed. 

Cited  in  Indiana  Trust  Co.  v.  Byram,  36  Ind.  App.  22,  72  N.  E.  670  (dissenting 
opinion),  on  the  intention  of  the  parties  as  controlling  fact  of  delivery  of  instru- 
ment. 
Ademption    of   legacy.    " 

Cited  in  Re  Turfler,  1  Power,  408,  note,  holding  that  money  gift  subsequent  to 
execution  of  will  does  not  adeem  pro  tanto  legacy  to  daughter. 

Cited  in  notes   (95  Am.  St.  Rep.  352;  12  L.R.A.  570)   on  ademption  of  legacy: 
(38  L.R.A.(N.S.)    589,  596)   on  gift  by  testator  as  ademption  of  general  legacy 
to  donee. 
Executor's    commissions. 

Cited  in  Re  Emerson,  59  Hun,  247,  12  N.  Y.  Supp.  788,  holding  executor  en- 
titled to  accounting  and  discharge,  with  commissions  as  such,  though  also  trus- 
tee; Re  Beard,  77  Hun,  113,  28  N.  Y.  Supp.  305,  holding  duties  of  executors 
and  trustees  separate,  entitling  them  to  double  commissions. 

Cited  in  footnote  to  Re  Rutledge,  47  L.  R.  A.  721,  which  sustains  surrogate's 
discretion  in  withholding  commissions  from  executor  neglecting  duties. 

5  L.  R.  A.  78,  Re  NEAGLE,  14  Sawy.  232,  39  Fed.  833. 

Affirmed  in  135  U.  S.  1,  34  L.  ed.  55,  10  Sup.  Ct.  Rep.  658. 
Jurisdiction   of   Federal   courts. 

Cited  in  Re  Lyman,  55  Fed.  43,  holding  unlawful  ousting  of  Federal  court  with 
its  records  properly  restrained ;  Ex  parte  Jervey,  66  Fed.  959,  holding  that  Fed- 
eral court  has  jurisdiction  of  suit  involving  dispensary  law  as  an  interference 
with  interstate  commerce. 
Habeas    corpus. 

Approved  in  Ex  parte  Caldwell,  138  Fed.  489,  holding  the  jurisdiction  of  Fed- 
eral courts  to  issue  habeas  corpus,  is  co-extensive  with  the  common-law  right^ 
and  extends  to  the  release  of  persons  in  custody  under  state  laws. 

Cited  in  Ex  parte  Ulrich,  43  Fed.  664,  holding  writ  of  habeas  corpus  will  not 
be  issued  by  Federal  court  where  criminal  court  of  state  has  complete  jurisdiction. 

Distinguished  in  Re  Krug,  79  Fed.  310,  holding  that  habeas  corpus  will  not 
issue  to  take  prisoner  from  custody  of  state  officers  because  of  faulty  indictment ; 
Re  Fox,  51  Fed.  431,  holding  that  writ  of  habeas  corpus  will  not  issue  to  take 
prisoner  awaiting  trial  from  jail  to  respond  to  indictment  in  Federal  court. 


5  L.R.A.  78]  L.  R.  A.  CASES  AS  AUTHORITIES.  794 

"VVlieii    homicide   justifiable. 

Cited  in  North  Carolina  v.  Kirkpatrick,  142  Fed.  694,  holding  homicide  by 
.Federal  revenue  officer  in  discharge  of  duty  justifiable. 

Cited  in  notes   (6  L.R.A.  425)   on  right  to  self-defense;    (67  L.R.A.  294,  306) 
on  homicide  by  official  action  or  by  officers  of  justice;    (67  L.R.A.  533)   on  homi- 
cide to  prevent  criminal  or  unlawful  acts. 
Where  court  chambers  ore. 

Cited  in  Re  Lux,  100  Cal.  601,  35  Pac.  341,  holding  that  inventory  of  estate 
of  deceased  presented  to  court  or  judge  at  chambers  is  returned;  Ex  parte  Steele, 
162  Fed.  718,  holding  that  a  judge  of  a  court  of  bankruptcy,  who  was  the  judge 
in  two  districts  could  make  an  order  to  be  entered  in  the  court  of  either,  as  to  a 
mere  administrative  matter,  though  not  present  in  the  court,  if  he  be  at  the  time 
in  either  district. 

5  L.  R.  A.  95,  MILNER  v.  BOWMAN,  119  Ind.  448,  21  N.  E.  1094. 
Iiisurnble    interest. 

Cited  in  Ingersoll  v.  Knights  of  Golden  Rule,  47  Fed.  275,  holding  that  bene- 
ficiary in  mutual  benefit  association  need  not  have  pecuniary  interest  in  assured; 
Gordon  v.  Ware  Nat.  Bank,  67  L.R.A.  554,  65  C.  C.  A.  580,  132  Fed.  448,  holding 
assignment  of  life  insurance  policy  is  not  void  because  the  assignee  had  no  in- 
surable  interest  in  the  life  insured,  unless  the  assignment  is  made  in  bad  faith; 
Rylander  v.  Allen,  125  Ga.  216,  6  L.R.A..(N.S.)  135,  53  S.  E.  1032,  5  A.  &  E.  Ann. 
Cas.  355,  holding  that  one  may  procure  a  policy  upon  his  own  life  and  assign  it 
to  one  who  has  no  insurable  interest  in  the  life,  provided  it  is  not  done  as  a 
cover  for  a  wagering  policy. 

Cited  in  footnotes  to  Opitz  v.  Karel,  62  L.  R.  A.  982,  holding  that  woman  has 
insurable  interest  in  life  of  man  she  is  engaged  to;  Kurd  v.  Doty,  21  L.  R.  A. 
746,  which  denies  right  of  trustee  receiving  proceeds  of  insurance  policy,  to  refuse 
payment  to  beneficiaries  as  having  no  insurable  interest. 

Cited  in  notes  (25  L.R.A.  627)  on  right  to  take  life  insurance  for  benefit  of 
stranger;  (6  L.R.A.(N.S.)  129)  on  validity  of  assignment  not  made  as  cover 
for  wager  policy  of  life  insurance  to  one  having  no  insurable  interest;  (52  Am. 
St.  Rep.  559;  128  Am.  St.  Rep.  311)  on  life  insurance  in  favor  of  persons  having 
no  insurable  interest. 

Distinguished  in  Davis  v.  Brown,  159  Ind.  646,  65  N.  E.  908,  holding  assignee 
of  policy  from  one  procuring  it  on  own  life  entitled  to  proceeds. 
Change    of   beneficiary. 

Cited  in  Robinson  v.  United  States  Mut.  Acci.  Asso.  68  Fed.  826,  holding  bene- 
ficiary substituted  for  son  and  daughter  in  accident  insurance  policy,  premiums 
on  which  have  been  paid  by  assured,  can  maintain  action  of  policy;  Anthony  T. 
Massachusetts  Ben.  Asso.  158  Mass.  324,  33  N.  E.  577,  holding  that  assignment 
of  benefit  association  certificate  may  be  made  to  sister  of  member;  Kessler  v. 
Kuhns,  1  Ind.  App.  518,  27  N.  E.  980,  holding  beneficiary  of  life  policy  on  life  of 
another  cannot  assign  to  his  creditor;  Nye  v.  Grand  Lodge,  A.  0.  of  U.  W.  9  Ind. 
App.  143,  36  N.  E.  429,  holding  sale  of  policy  for  considerably  less  than  its  face, 
the  assignee  agreeing  to  keep  up  premiums,  not  gambling;  Mason  v.  Mason,  160 
Ind.  195,  65  N.  E.  585,  holding  beneficiary  without  claim  where  new  certificate 
fails  to  state  name;  Waldum  v.  Homstad,  119  Wis.  319,  90  N.  W.  806,  sustaining 
claim  of  new  beneficiary  though  officer  failed  to  make  change  before  insurer's 
death;  Bunyan  v.  Reed,  34  Ind.  App.  301,  70  N.  E.  1002,  holding  that  beneficiary 
under  mutual  benefit  certificate  acquires  no  vested  rights  therein,  until  the 
death  of  the  insxired,  and  the  latter  may  change  the  beneficiary,  subject  only  to 
the  limitations  fixed  by  the  by-laws. 


795  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  100 

Cited  in  footnotes  to  McQuillan  v.  Mutual  Reserve  Fund  Life  Asso.  56  L.  R.  A. 
233,  which  sustains  right  to  provide  that  assigned  policy  shall  be  void  as  to  all 
above  debt  due  assignee;  Steele  v.  Gatlin,  59  L.  R.  A.  129,  which  holds  complete 
gift  not  made  by  verbal  assignment  of  life  policy,  accompanied  with  words  indicat- 
ing intent  to  give,  and  delivery  of,  policy;  Simcoke  v.  Grand  Lodge,  A.  O.  of  U. 
W.  15  L.  R.  A.  114,  which  holds  that  granting  of  new  beneficiary  certificate  pre- 
cludes question  as  to  sufficiency  of  attestation  to  signature  to  application  for 
change;  Clark  v.  HirschI,  9  L.  R.  A.  841,  which  holds  beneficiary  changed  though 
letter  announcing  change  to  association  not  received  till  after  member's  death; 
Schmidt  v.  Iowa  K.  of  P.  Ins.  Asso.  11  L.  R.  A.  205,  which  holds  indorsement, 
of  benefit  certificate,  by  third  person  on  oral  request  through  third  person  of 
member  not  present  at  time  of  indorsement,  sufficient  change  of  beneficiary; 
Luhrs  v.  Luhrs,  9  L.  R.  A.  534,  which  holds  failure  to  formally  change  bene- 
ficiaries does  not  prevent  recovery  by  substituted  one;  Hinton  v.  Mutual  Reserve 
Fund  L.  Asso.  65  L.R.A.  161,  which  holds  insurance  company  not  liable  on  pol- 
icy issued  to  wife  of  mortgagor  and  assigned  by  her  to  mortgagee  as  security  for 
the  debt. 

Cited  in  notes  (15  L.  R.  A.  350,  352)  on  changing  designation  in  benefit  cer- 
tificate otherwise  than  in  prescribed  method;  (7  L.  R.  A.  189)  on  transfer  of 
mutual  benefit  certificate;  (49  L.  R.  A.  750,  755)  on  power  of  insured  to  destroy 
rights  of  beneficiary;  (14  Am.  St.  Rep.  527;  19  Am.  St.  Rep.  789;  52  Am.  St. 
Rep.  562)  on  change  of  beneficiaries  in  mutual  benefit  association;  (52  Am,  St. 
Rep.  565,  566,  567;  87  Am.  St.  Rep.  508,  516,  518),  on  assignment  of  life  insur- 
ance policies;  (25  Am.  St.  Rep.  264;  52  Am.  St.  Rep.  570,  571)  on  distribution 
of  proceeds  of  mutual  or  membership  life  or  accident  insurance  on  death  of 
beneficiary  before  assured. 

Distinguished  in  Carter  v.  Carter,  35  Ind.  App.  78,  72  N.  E.  187,  holding  that 
where  husband  transferred  his  benefit  certificate  to  his  wife  under  an  ante-nup- 
tial agreement,  he  could  not  afterward  procure  another  payable  to  some  other 
person  on  the  ground  that  the  old  was  beyond  his  control. 
Difference   Ix-tween    policies   and   benefit   certificates. 

Cited  in  notes  (12  L.  R.  A.  210)  on  distinction  between  mutual  benefit  certifi- 
cate and  life  insurance  policy;   (9  L.  R.  A.  189)  on  forfeiture  of  benefit  certificate 
for  nonpayment  of  assessment. 
Review     by     courts     of     decisions     of     benefit     societies. 

Cited  in  note  (9  L.  R.  A.  428)  on  review  by  courts  of  decisions  of  officers  sus- 
pending member  of  mutual  benefit  association. 

5  L.  R.  A.  100,  CHEWACLA  LIME  WORKS  v.  DISMUKES,  87  Ala.  344,  6  So. 

122. 
Powers    of   corporation. 

Cited  in  Deaton  Grocery  Co.  v.  International  Harvester  Co.  47  Tex.  Civ.  App. 
274,  105  S.  W.  556,  holding  a  corporation  organized  under  statute,  which  merely 
•describes  the  nature  of  its  business,  has  power  to  do  such  things  as  are  reason- 
ably necessary  to  accomplish  its  purpose;  Gulf  Yellow  Pine  Lumber  Co.  v.  Chap- 
man, 159  Ala.  417.  48  So.  662,  holding  a  corporate  authority  to  buy  and  sell 
goods  and  purchase  for  cash  or  credit,  was  ancilliary  to  its  main  business  of 
lumbering,  and  did  not  authorize  it  to  buy  or  sell  for  another,  or  become  a 
surety  for  him. 
Ultra  Aires  contracts. 

Cited  in  Simmons  v.  Troy  Iron  Works,  92  Ala.  428,  9  So.  160,  holding  machinery 
company  cannot  engage  in  ice  business;  Arrington  v.  Savannah  &  W.  R.  Co.  95 


5  L.R.A.  100]  L.  R.  A.  CASES  AS  AUTHORITIES.  796 

Ala.  437,  11  So.  7,  holding  power  to  construct  branch  road  not  given  by  charter, 
governed  by  statutes;  Steiner  v.  Steiner  Land  &  Lumber  Co.  120  Ala.  140,  26 
So.  494,  holding  unanimous  consent  of  stockholders  will  not  empower  corporation 
to  engage  in  unauthorized  business;  Adams  &  W.  Co.  v.  Deyette,  8  S.  D.  128,  31 
L.  R.  A.  501,  59  Am.  St.  Rep.  751,  65  N.  W.  471,  holding  purchase  by  corporation 
of  its  own  stock,  wholly  without  authority,  ultra  vires;  Powell  v.  Murray,  3 
App.  Div.  276,  38  N.  Y.  Supp.  233,  holding  purchase  by  manufacturing  company 
of  right  to  sell  product  of  another  company,  ultra  vires ;  Xorthside  R.  Co.  v. 
Worthington,  88  Tex.  570,  53  Am.  St.  Rep.  778,  30  S.  W.  1055,  holding  that  com- 
pany may  exercise  implied  powers  incidental  to  business,  and  no  more;  Southern 
Mut.  Aid  Asso.  v.  Boyd,  145  Ala.  174,  41  So.  164,  holding  a  mutual  benefit  asso- 
ciation organized  to  pay  benefits  for  sickness  and  death,  has  no  authority  to  issue 
policies  making  part  of  assessments  returnable  at  certain  times,  less  the  bene- 
fits paid;  Southern  Mut.  Aid  Asso.  v.  Cobb,  60  Fla.  211,  53  So.  505,  on  right  of 
corporation  to  plead  ultra  vires  where  it  has  received  benefits  under  contract. 
Actions  to  enforce  ultra  vires  contracts. 

Cited  in  Long  v.  Georgia  P.  R.  Co.  91  Ala.  521,  24  Am.  St.  Rep.  931,  8  So. 
706,  holding  court  of  equity  will  not  rescind  or  grant  relief  against  ultra  vires 
contract;  First  Nat.  Bank  v.  Winchester,  119  Ala.  171,  72  Am.  St.  Rep.  904, 
24  So.  351,  holding  ultra  vires  note  and  mortgage  executed  by  corporation  as 
surety  not  enforceable  against  it;  Cleveland  School  Furniture  Co.  v.  Greenville, 
146  Ala.  564,  41  So.  862,  holding  that  the  retention  and  use  of  school  furniture 
did  not  estop  the  city  from  pleading  the  defense  of  ultra  vires;  First  Nat.  Bank 
v.  Henry,  159  Ala.  398,  49  So.  97  (dissenting  opinion),  on  the  defense  of  ultra 
vires. 
Corporate  taxation.  , 

Cited  in  note  (64  L.  R.  A.  56)  on  taxation  of  manufacturing  corporations  in 
United  States. 

5  L.  R.  A.  102,  MATTHEWS  v.  DIXEY,  149  Mass.  595,  22  N.  E.  61. 
Party    Trails. 

Cited  in  Walker  v.  Stetson,  162  Mass.  88,  44  Am.  St.  Rep.  350,  38  N.  E.  18, 
holding  party  wall  owner  not  liable  for  addition  by  adjoining  owner  strengthen- 
ing lower  portion;  Normille  v.  Gill,  159  Mass.  428,  38  Am.  St.  Rep.  441,  34  X. 
E.  543,  holding  builder  of  party  wall  cannot  make  windows  to  be  used  until 
neighbor  builds;  Barry  v.  Edlavitch,  84  Md.  113,  33  L.  R.  A.  296,  35  Atl.  170, 
holding  prescriptive  right  to  use  wall  limited  to  height  used;  Negus  v.  Becker, 
72  Hun,  482,  25  N.  Y.  Supp.  640,  holding  party  wall  agreement  gives  right  to 
extend  wall  for  whole  length  of  line;  Fleming  v.  Cohen,  ]86  Mass.  328,  104  Am. 
St.  Rep.  572,  71  N.  E.  563,  holding  the  easement  of  support  afforded  by  a  party 
wall  is  not  confined  to  the  original  buildings,  but  extends  to  new  buildings  that 
may  be  erected,  and  either  proprietor  may  repair  at  any  time. 

Cited  in  footnotes  to  Barry  v.  Edlavitch,  33  L.  R.  A.  294,  which  holds  ease- 
ment acquired  by  possession,  in  party  wall  appurtenant  to  estate;  Harber  v. 
Evans,  10  L.  R.  A.  41,  which  authorizes  injunction  against  making  openings  in 
party  wall ;  Everett  v.  Edwards,  5  L.  R.  A.  110,  which  upholds  equal  rights  of 
both  owners  to  use,  but  not  to  weaken,  addition  to  party  wall ;  Putzell  v.  Drovers' 

6  M.  Nat.  Bank,  22  L.  R.  A.  632,  which  upholds  right  to  remove  boundary  wall 
for  erection  of  better  wall;  Clemens  v.  Speed,  19  L.  R.  A.  240,  which  denies  to 
party  wall  owners  easement  from  support  of  buildings ;   Swift  v.  C'alnan,  37  L. 
R.  A.  462,  which  sustains  right  to  recover  on  agreement  to  pay  half  of  expense 
of  party  wall  on  using  same;   Burr  v.  Lamaster,  9  L.  R.  A.  637.  which  holds 
party  wall,  and  agreement  to  pay  for  same  on  using  it,  an  encumbrance;   Motfe 


797  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  104 

v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes  as  running  with  the  land  agree 
nient  for  party  wall  expressly  declared  to  run  with  land;  Lincoln  v.  Burrage,  52 
L.  R.  A.  110,  .which  holds  grantee's  promise  to  pay  p.irt  of  cost  of  party  wall 
when  used  not  run  with  land. 

Cited  in  notes  (7  L.R.A.  649)  on  use  of  party  wall;  (20  L.R.A.(X.S.)  387;  14 
Am.  St.  Rep.  468)  on  right  to  build  upon  and  increase  height  of  party  wall;  (66 
L.R.A.  679,  683,  691,  706)  on  enfoVcement  of  obligation  to  contribute  to  cost 
of  party  walls,  by  or  against  grantees  or  successors  in  title;  (89  Am.  St.  Rep. 
931,  940)  on  party  walls. 

5  L.  R.  A.  104,  BULLARD  v.  CHANDLER,  149  Mass.  532,  21  N.  E.  951. 

Application  by  trustees  as  to  their  duty  to  give  bonds  in  Bullard  v.  Atty.  Gen. 
153  Mass.  250,  26  N.  E.  691. 
"What  are  charitable  gifts. 

Cited  in  Weber  v.  Bryant,  161  Mass.  403,  37  N.  E.  203,  holding  bequest  for 
benevolent  or  charitable  purposes,  public  or  private,  creates  public  charity : 
Darcy  v.  Kelley,  153  Mass.  437,  26  N.  E.  1110,  holding  bequest  for  poor  relief 
fund,  public  charity;  Haynes  v.  Carr,  70  N.  H.  481,  49  Atl.  638,  holding  charit- 
able bequest  vesting  expenditure  in  trustees'  discretion  valid;  Murdock  v.  Bridges. 
91  Me.  134,  39  Atl.  475,  holding  trust  in  fund  to  be  distributed  as  trustee  thinks 
best,  not  charitable,  and  invalid:  Troutman  v.  De  Boissiere  Odd  Fellows'  Orphans' 
Home  (Kan.)  5  L,R.A.(N.S.)  698,  64  Pac.  33,  holding  bequest  in  trust  for  the 
purpose  of  creating  a  home  for  the  orphans  of  deceased  members  of  a  fraternal  in- 
surance society  designated,  was  a  charitable  gift;  Re  Distribution  of  Funds,  27 
Montg.  Co.  L.  Rep.  188,  holding  that  charity  may  be  public  charity,  although  ad- 
ministered by  private  hand. 

Cited  in  footnotes  to  Kelly  v.  Nichols,  19  L.  R.  A.  413,  as  to  what  constitutes- 
charitable  use  or  trust;  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  gift 
of  free  public  library  in  great  city  charitable;  Re  Sellers  Chapel  M.  E.  Church, 
11  L.  R.  A.  282,  which  holds  trust  for  charitable  use  created  by  conveyance  to 
trustees  for  erection  of  church;  Adams  Female  Academy  v.  Adams,  6  L.  R.  A. 
785,  which  authorizes  use  for  public  school  of  fund  bequeathed  to  establish 
•"female  academy;"  Bird  v.  Merklee,  27  L.  R.  A.  423,  which  holds  bequest  to 
churches  to  buy  coal  for  poor,  direct  gift  to  churches;  Woman's  Foreign  Mission- 
ary Soc.  v.  Mitchell,  53  L.  R.  A.  711,  which  holds  legacy  to  board  of  managers 
of  Foreign  Missionary  Society  of  M.  E.  Church  properly  paid  to  Woman's  For- 
eign Missionary  Society. 

Cited  in  notes  (7  L.  R.  A.  766;  13  L.  R.  A.  218)  on  power  of  municipality  to 
take  and  administer  property  in  trust  for  charitable  uses;  (11  L.  R.  A.  214) 
on  authority  of  trustees  of  religious  corporations;  (4  L.  R.  A.  699)  on  gift  of 
fund  to  be  maintained;  (63  Am.  St.  Rep.  263)  on  what  are  charitable  uses  or 
trusts. 
Indefiniteness  of  charitable  gifts. 

Cited  in  Fox  v.  Gibbs,  86  Me.  94,  29  Atl.  940,  holding  bequest  for  "benevolent 
and  charitable  purposes"  not  void  for  indefiniteness;  Woodroof  v.  Hundley,  147 
Ala.  292,  39  So.  907.  holding  a  charitable  gift  definite  and  valid,  where  it  was 
for  the  purpose  of  aiding  young  men  studying  for  the  ministry  in  a  designated 
Protestant  denomination  or  one  to  be  selected  by  the  executors,  the  men  to  be 
selected  by  them  also;  Minot  v.  Atty.  Gen.  189  Mass.  180,  75  N.  E.  149,  holding 
that  bequest  to  such  persons  or  corporations  as  the  executors  might  choose  or  to 
persons  whom  he  had  overlooked,  was  too  indefinite  and  the  whole  trust  void; 
Selleck  v.  Thompson,  28  R.  I.  355,  67  Atl.  425,  holding  that  where  testatrix  di- 


5  L.R.A.  104]  L.  R.  A.  CASES  AS  AUTHORITIES.  79&' 

reeled  her  executors  to  designate  the  beneficiaries  of  a  charitable  trust,  it  was 
sufficiently  definite. 

Cited  in  footnotes  to  People  v.  Powers,  35  L.  R.  A.  502,  which  holds  trust  to 
dispose  of  property  among  such  charitable  and  benevolent  institutions  as  trustee 
shall  choose  void  for  indefiniteness;  Harrington  v.  Pier,  50  L.  R.  A.  307,  which 
holds  bequest  for  promotion  of  temperance  work  in  certain  city  not  fatally  in- 
definite; People  ex  rel.  Atty.  Gen.  v.  Dashaway  Asso.  12  L.  R.  A.  117,  which 
holds  promotion  of  cause  of  temperance  too  vague  description  of  purpose  for 
which  corporation  formed;  Thompson  v.  Brown,  62  L.R.A.  398.  which  upholds 
devise  of  fund  to  be  distributed  by  executor  "to  the  poor"  in  his  discretion. 

Cited  in  notes  (12  L.R.A.  415)  on  bequests  held  void  for  uncertainty;    (4  L.R.A. 
700)   as  to  when  gifts  sufficiently  definite;    (14  L.R.A. (N.S.)   68,  71,  91)    on  en- 
forcement of  general  bequest  for  charity  or  religion;    (5  Eng.  Rul.  Cas.  578)   on: 
invalidity  of  charitable  bequests  for  indebtedness. 
Testamentary   trust;    l»y   whom   administered. 

Cited  in  White  v.  Massachusetts  Inst.  of  Technology,  171  Mass.  96,  50  N.  E. 
512,  holding  where  no  trustee  of  bequest  of  use  of  money  appointed,  executor 
acts;  Boston  v.  Doyle,  184  Mass.  382,  68  N.  E.  851,  holding  that  equity  will- 
appoint  other  trustees  when  board  of  selectmen  ceases  to  exist;  Grant  v.  Saunders, 
121  Iowa,  88,  95  N.  W.  411,  sustaining  court's  power  to  appoint  trustee  in  place 
of  one  named  in  will;  Payne  v.  Robinson,  26  App.  D.  C.  287,  6  A.  &  E.  Ann.  Cas. 
784,  holding  gift  of  interest  was  not  gift  of  principal,  but  executor  held  the  latter 
in  trust. 
Rule  of  statutory  construction. 

Cited  in  Com.  v.  Kelley,  177  Mass.  223,  58  N.  E.  691,  holding  exception  in  act. 
regulating  sale  of  liquor  confined  to  last  antecedent. 
Recognition  of  foreign  lawa. 

Cited  in  note   ( 10  L.  R.  A.  767 )   on  comity  in  recognizing  foreign  laws. 
Disherison. 

Cited  in  note   (11  L.  R.  A.  768)   on  disherison  by  will. 
Requested   instructions   by   trustee. 

Cited  in  Peabody  v.  Tyszkiewicz,  191  Mass.  322,  77  N.  E.  839,  holding  that 
under  a  petition  for  instructions  a  court  is  not  bound  to  give  them  as  to  future 
contingencies;  Polsey  v.  Newton,  199  Mass.  456,  85  N.  E.  574,  15  A.  &  E.  Ann. 
Cas.  139  (dissenting  opinion),  on  the  same  point;  Sibley  v.  Maxwell,  203  Mass. 
307,  89  N.  E.  232,  holding  that  on  a  bill  for  instruction,  an  executor  is  entitled 
to  instructions  only  as  to  his  present  duties,  and  not  as  to  accounts,  questioned 
but  not  yet  allowed  by  Probate  Court. 
Moot  questions. 

Cited  in  Hall  v.  Cogswell,  183  Mass.  523,  67  N.  E.  644,  holding  that  court 
refuses  to  consider  moot  questions;  Searls  v.  Charitable  Baptist  Soc.  30  R.  I.  480, 
76  Atl,  160,  holding  that  trustee  cannot  maintain  suit  for  construction  of  will 
where  the  questions  propounded  may  never  arise. 

5  L.  R.  A.  110,  EVERETT  v.  EDWARDS,  149  Mass.  588,  14  Am.  St.  Rep.  462, 

22  N.  E.  52. 
Party  walls. 

Cited  in  Walker  v.  Stetson,  162  Mass.  88,  44  Am.  St.  Rep.  350,  38  N.  E.  18; 
Tate  v.  Fratt,  112  Cal.  CIS,  44  Pac.  1061;  Matthews  v.  Dixey,  149  Mass.  599, 
5  L.  R.  A.  103,  22  N.  E.  61 ;  Carlton  v.  Blake,  152  Mass.  179,  23  Am.  St.  Rep. 
818,  25  N.  E.  83, —  holding  part  owner  of  party  wall  has  right  to  increase  its 
height;  Fidelity  Lodge,  No.  59,  I.  0.  0.  F.  v.  Bond,  147  Ind.  443,  45  N.  E.  340,, 


799  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  115 

restraining  continuance  of  party  wall  with  windows  for  exclusive  use  of  builder^ 
Normille  v.  Gill,  159  Mass.  428,  38  Am.  St.  Rep.  441,  34  N.  E.  543,  holding  part 
owner  of  party  wall  cannot,  against  objection,  leave  openings  for  windows; 
Bright  v.  Allan,  203  Pa.  397,  93  Am.  St.  Rep.  769,  53  Atl.  251,  and  Barry  v. 
Edlavitch,  84  Md.  113,  33  L.  R.  A.  296,  35  Atl.  170,  holding  prescriptive  right 
to  use  wall  on  another's  land  limited  to  extent  used;  Fleming  v.  Cohen,  186- 
Mass.  326,  104  Am.  St.  Rep.  572,  71  N.  E.  563,  on  the  right  of  support  from 
party  wall;  Bellenot  v.  Laube,  104  Va.  847,  52  S.  E.  698,  holding  either  proprie- 
tor of  a  party  wall  may  increase  the  height  of  the  wall  for  the  purpose  of  using 
it  in  constructing  new  building. 

Cited  in  footnotes  to  Matthews  v.  Dixey,  5  L.  R.  A.  102,  which  upholds  right 
to  use  and  extend  party  wall  erected  by  adjoining  owner;  Burr  v.  Lamaster, 
9  L.  R.  A.  637,  which  holds  party  wall,  and  agreement  to  pay  for  same  on  using 
it,  an  encumbrance;  Harber  v.  Evans,  10  L.  R.  A.  41,  which  authorizes  injunction 
against  making  openings  in  party  wall;  Clemens  v.  Speed,  19  L.  R.  A.  240,  which 
denies  to  party  wall  owners  reciprocal  easement  from  support  of  buildings; 
Putzell  v.  Drovers'  &  M.  Nat.  Bank,  22  L.  R.  A.  632,  which  upholds  right  to 
remove  boundary  wall  for  erection  of  better  wall. 

Cited  in  notes  (7  L.R.A.  649)  on  use  of  party  wall;    (20  L.R.A. (X.S.)   387)  oa 
right  to  raise  height  of  party  wall;    (89  Am.  St.  Rep.  926,  931,  932),  on  party 
walls. 
Prevention  of  acts  in   derogation   of  property  rights. 

Cited  in  Stewart  v.  Finkelstone,  206  Mass.  35,  28  L.R.A.(N.S.)  636,  138  Am. 
St.  Rep.  370,  92  N.  E.  37,  holding  that  mortgagee  of  land  may  sue  in  equity  to- 
prevent  injuries  to  property  by  violation  of  restrictive  covenants. 

Cited  in  note  (123  Am.  St.  Rep.  302)   on  intervention  by  lienholders. 

5  L.  R.  A.  115,  BIGGS  v.  McBRIDE,  17  Or.  640,  21  Pac.  878. 
Time   of   taking   effect   of   emergency   statute. 

Cited  in  Bennett  Trust  Co.  v.  Sengstacken,  58  Or.  344,  113  Pac.  863,  holding- 
that  bill  containing  emergency  clause  and  providing  that  it  will  become  law  on 
governor's  approval,  becomes  effective  in  five  days  if  not  returned  by  governor,- 
unless  general  adjournment  prevents  such  return. 

Cited  in  note    (13  Am.  St.  Rep.  739)    on  time  of  taking  effect  of  emergency- 
statute  on  passage  of  governor's  veto. 
Power   of   appointment    to    public    office. 

Cited  in  State  ear  rel.  Wagner  v.  Compson,  34  Or.  27,  54  Pac.  349,  and  Eddy 
v.  Kincaid,  28  Or.  557,  41  Pac.  158,  upholding  act  vesting  in  legislature  power  to- 
appoint  railroad  commissioners;  State  ex  rel.  Sherman  v.  George.  22  Or.  150, 
16  L.  R.  A.  740.  29  Am.  St.  Rep.  586,  29  Pac.  358,  upholding  statute  providing 
for  appointment  by  court  of  bridge  committee;  State  ex  rel.  Standish  v.  Boucher, 
3  N.  D.  395,  21  L.  R.  A.  544,  56  N.  W.  142,  holding  appointing  power  does  not,  in 
absence  of  constitutional  provision,  reside  in  governor;  Atty.  Gen.  ex  rel.  May- 
bury  v.  Bolger,  128  Mich.  360,  87  N.  W.  366.  holding  act  providing  for  appoint- 
ment of  park  commissioner  by  council  constitutional;  Pratt  v.  Breckinridge,  112. 
Ky.  13,  65  S.  W.  136,  denying  legislative  power  to  appoint  election  commis- 
sioners; Purnell  v.  Mann,  105  Ky.  118,  50  S.  W.  266  (dissenting  opinion),  ma- 
jority holding  act  providing  for  selection  of  county  election  commissioners  by 
commission  appointed  by  legislature  constitutional ;  State  ex  rel.  Yancey  v. 
Hyde,  121  Ind.  41.  22  N.  E.  644  (dissenting  opinion),  majority  holding  legislature 
cannot  fill  vacant  state  office:  Southern  P.  Co.  v.  Bartine,  170  Fed.  746,  hold- 
ing that  all  power  of  appointment  is  not  impliedly  vested  in  the  governor,  where 
the  constitution  is  silent  on  that  matter;  Richardson  v.  Young.  122  Tenn.  4!:- 


5  L.R.A.  115]  L.  R.  A.  CASES  AS  AUTHORITIES.  800 

S.  W.  (i64,  to  the  point  that  power  of  appointment  to  office  is  political  power  and 
may  be  vested  in  either  department  of  government. 
Removal    of    public    officer. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Johnson.  30  Fla.  483,  18  L.  R.  A.  416,  11 
So.  845,  and  Knox  County  v.  Johnson,  124  Ind.  153,  7  L.  R.  A.  687,  19  Am.  St. 
Rep.  88,  24  N.  E.  148,  holding  officer  not  removable  for  cause  without  hearing; 
State  ex  rel.  "Hitchcock  v.  Hewitt,  3  S.  D.  195,  16  L.  R.  A.  417,  44  Am.  St.  Rep. 
788,  52  N.  W.  875,  and  State  ex  rel.  Hastings  v.  Smith,  35  Neb.  33,  16  L. 
R.  A.  797,  52  N.  W.  700,  holding  officer  appointed  for  definite  term  not  removable 
without  hearing;  Shurtleff  v.  United  States,  189  U.  S.  314,  47  L.  ed.  831,  23 
Sup.  Ct.  Rep.  535,  upholding  President's  removal  of  appraiser  of  merchandise; 
Hagerty  v.  Shedd,  75  N.  H.  396,  139  Am.  St.  Rep.  725,  74  Atl.  1055,  holding  that 
statute  authorizing  removal  of  municipal  officer  for  cause  means  for  legal  cause 
after  notice  and  hearing. 

Cited  in  notes   (16  Am.  St.  Rep.  648)   on  removal  of  officers  by  governor;    (40 
Am.  St.  Rep.  45)   on  removal  from  office. 
Constitutional   law ;    construction. 

Cited  in  Detroit  v.  Chapin,  108  Mich.  143,  37  L.  R.  A.  398,  66  N.  W.  587,  hold- 
ing contemporaneous  construction  of  Constitution  entitled  to  great  weight. 
Scope    of    legislative    power. 

Cited  in  Travelers'  Ins.  Co.  v.  Oswego  Twp.  7  C.  C.  A.  678,  19  U.  S.  App.  321, 
59  Fed.  67,  holding  right  to  determine  manner  of  issuing  township  bonds  vested 
in  legislature;  Thompson  v.  State,  56  Fla.  Ill,  47  So.  816,  on  the  authority  of 
the  legislature  under  the  constitution  to  determine  when  an  emergency  exists  to 
make  statutes  effective  immediately;  Kadderly  v.  Portland,  44  Or.  149,  74  Pac. 
710,  holding  that  the  question  as  to  whether  a  law  is  necessary  within  the  initia- 
tive and  referendum  clause  of  the  constitution  is  for  the  legislature;  Oklahoma 
City  v.  Shields,  22  Okla.  303,  100  Pac.  559,  on  the  same  point. 
Mandamus,  when  issnanle. 

Cited  in  Lynde  v.  Dibble,  19  Wash.  330,  53  Pac.  370,  holding  title  to  office  not 
triable  by  mandamus;  Caffrey  v.  Caffrey,  28  Pa.  Super.  Ct.  25,  holding  manda- 
mus will  not  lie  in  favor  of  a  person  claiming  the  office  of  school  director,  where 
there  is  another  person  in  the  office  and  recognized  by  the  other  members. 

Cited  in  footnotes  to  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188, 
which  denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asy- 
lum; People  ex  rel.  Daley  v.  Rice,  14  L.  R.  A.  644,  which  authorizes  mandamus 
to  compel  canvassing  board  to  disregard  illegal  return;  People  ex  rel.  Corscad- 
den  v.  Howe,  66  L.R.A.  664,  which  holds  that  mandamus  will  lie  to  compel  pay- 
ment by  county  treasurer  of  salary  of  superintendent  of  county  penitentiary 
whom  commissioners  have  attempted  to  remove  from  office  under  invalid  statute 
during  time  he  retains  possession  of  the  office. 

Cited  in  note  (98  Am.  St.  Rep.  885)  on  mandamus  as  proper  remedy  against 
public  officers. 

5  L.  R.  A.  121,  TAYLOR  v.  STREET,  82  Ga.  723,  9  S.  E.  829. 
Estoppel    of    ufiiniiir    or    heirs. 

Cited  in  Equitable  Mortg.  Co.  v.  Butler,  105  Ga.  561,  31  S.  E.  395,  holding 
grantor  may  be  estopped  as  to  purchasers  without  notice,  by  procuring  record- 
ing of  deed,  from  denying  delivery. 

Cited  in  note   (28  Am.  St.  Rep.  34)   on  estoppel  of  heirs. 

Distinguished  in  Thornton  v.  Ferguson,  133  Ga.  829,  134  Am.  St.  Rep.  226,  67 
S.  E.  97,  holding  that  estoppel  in  pais  on  account  of  misrepresentations  by  own- 


801  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  120 

er  of  land  to  induce  another  person  to  extend  credit  upon  it  and  accept  a  mort- 
gage from  another  person,  will  not  affect  a  subsequent  grantee  who  was  a  bona 
fide  purchaser. 
Harmless  erroneous  instruction*. 

Cited  in  Charleston  &  S.  R.  Co.  v.  Green,  95  Ga.  366,  22  S.  E.  540,  holding  that 
verdict  being  only  one  proper,  errors  in  instructions  to  jury  immaterial. 
Delivery    of    deed. 

Cited  in  footnotes  to  Strough  v.  Wilder,  7  L.  R.  A.  555,  which  holds  possession 
prima  facie  evidence  of  delivery  of  deed;  Cook  v.  Patrick,  11  L.  R.  A.  573,  which 
holds  delivery  of  deed  to  third  person  paying  for  property  sufficient  delivery  to 
grantees;  Robbins  v.  Rascoe,  38  L.  R.  A.  238,  which  holds  delivery  of  deed  to 
natural  child,  to  deputy  clerk  of  court,  with  instructions  for  proving  it,  passes 
title. 

Cited  in  note    (13  L.  R.  A.  677)   on  essentials  to  validity  of  deed. 

5  L.  R.  A.  122,  READ  v.  MOSBY,  87  Tenn.  759,  11  S.  W.  940. 
Assignment   of   future   contingent   interest. 

Cited  in  Glenn  v.  Burns,  100  Tenn.  301,  45  S.  W.  784,  holding  contingent  in- 
terest under  life  insurance  policy  transmissible;  Hale  v.  Hollon,  90  Tex.  430, 
36  L.  R.  A.  77,  59  Am.  St.  Rep.  819,  39  S.  W.  287,  holding  conveyance  of  expect- 
ancy, not  in  fraud  of  creditors,  valid;  Gore  v.  Howard,  94  Tenn.  582,  30  S.  W. 
730.  holding  heir  apparent  relinquishing  expectancy  to  ancestor  for  value  estopped 
to  contest  will:  Taylor  v.  Swafford,  122  Tenn.  307,  25  L.R.A.(N.S.)  443,  123  S. 
W.  350,  holding  a  contract  of  sale  of  the  expectancy  of  an  heir  sui  juris  will  be 
sustained  in  equity,  if  fair  and  honest. 

Cited  in  footnotes  to  Wiant  v.  Hays,  23  L.  R.  A.  82,  which  holds  right  to  excess 
of  proceeds  of  land  sold  on  forfeiture  of  nonentry  on  assessor's  books,  assignable; 
Erickson  v.  Brookings  County,  18  L.  R.  A.  347,  which  holds  assignable  right  of 
xmrchaser  at  unlawful  tax  sale  to  have  money  refunded. 

Cited  in  notes  (33  L.R.A.  276)  on  validity  of  sale  of  expectancy  by  prospective 
heir;  (56  Am.  St.  Rep.  349;  24  Eng.  Rul.  Cas.  769,  773)  on  validity  and  en- 
forceability  of  assignment  of  expectancy. 

.->  L.  R.  A.  126,  SEYMOUR  v.  CUMMINS.  119  Ind.  148,  21  N.  E.  549. 
Liability    of    city    assuming    duty,    for    negligent    performance. 

Cited  in  Lenzen  v.  New  Braunfels,  13  Tex.  Civ.  App.  366,  35  S.  W.  341,  holding 
city  liable  for  negligent  failure  to  supply  water  to  extinguish  fire;  Valparaiso 
v.  Adams,  123  Ind.  252,  24  N.  E.  107,  holding  city  not  using  reasonable  care  in 
adopting  plan  for  grading  liable  to  landowner  injured. 

Cited  in  footnotes  to  Huffmire  v.  Brooklyn,  48  L.  R.  A.  421,  which  sustains 
city's  liability  for  destruction  of  oysters  by  sewage  cast  on  beds;  Miles  v.  Wor- 
cester, 13  L.  R.  A.  841,  which  holds  city  liable  for  encroachment  by  retaining  wall 
on  filling  schoolyard;  Long  v.  Elberton,  46  L.  R.  A.  428,  which  denies  liability  of 
city  to  neighboring  property  owners  for  erection  of  prison  within  city  limits, 
unless  so  negligently  maintained  as  to  constitute  nuisance;  Snider  v.  St.  Paul, 
18  L.  R.  A.  151,  which  holds  city  not  liable  for  negligence  of  agents  in  providing 
and  maintaining  city  hall. 

Cited  in  notes  (7  L.R.A.  156,  157)  on  liability  of  municipality  for  creation  of 
nuisance;  (65  L.R.A.  752)  on  liability  for  acts  of  independent  contractor  where 
injury  is  direct  result  of  work  contracted  for;  (30  Am.  St.  Rep.  380)  on  liability 
of  cities  for  negligence  and  other  misconduct  of  officers  and  agents;  (76  Am.  St. 
Rep.  417.  419.  420)  on  liability  for  negligence  and  torts  of  independent  con- 
L.R.A.  Au.  Vol.  I.— 51. 


5  L.R.A.  126]  L.  R.  A.  CASES  AS  AUTHORITIES.  802 

tractors,   (16  Eng.  Rul.  Gas.  628)  on  liability  of  officers  for  permitting  or  failing 
to  abate  nuisance. 
As    to    seTveru. 

Cited  in  Kolb  v.  Knoxville,  111  Tenn.  315,  76  S.  W.  823,  holding  accumulations 
of  garbage  and  foul  smelling  substances  constituted  a  nuisance,  though  caused 
by  sewer  out  of  repair. 

Cited  in  footnotes  to  Nevins  v.  Fitchburg,  47  L.  R.  A.  312,  which  denies  city's 
right  to  discharge  sewer  into  tailrace;  Hughes  v.  Auburn,  46  L.  R.  A.  636, 
which  denies  city's  liability  for  disease  due  to  neglect  of  proper  sanitary  precau- 
tions as  to  sewer  system;  Williams  v.  Greenville,  57  L.  R.  A.  207,  which  denies 
city's  liability  for  sickness,  etc.,  from  permitting  filth  from  drainage  ditch  to  flow 
on  adjoining  land;  Price  v.  Oakfield  Highland  Creamery  Co.  24  L.  R.  A.  333, 
which  authorizes  injunction  against  allowing  filth  to  flow  from  creamery  to 
adjoining  premises;  Uppington  v.  New  York,  53  L.  R.  A.  550,  which  denies  city's 
liability  for  failure  to  select  best  possible  route,  or  adopt  best  possible  plan,  for 
sewer. 

Cited  in  notes  (7  L.  R.  A.  465)   on  damages  recoverable  for  negligent  construc- 
tion of  sewer;    (61  L.  R.  A.  685,  706,  711)  on  duty  and  liability  of  municipality 
with  respect  to  drainage;    (29  Am.  St.  Rep.  647,   738,  739,  742)    on  municipal 
liability  for  defects  in  and  want  of  repair  of  sewers. 
Right  to  divert  surface  water. 

Cited  in  footnotes  to  Johnson  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.   14  L.  R.  A. 
495,  which  authorizes  diversion  of  surface  water;  Paddock  v.  Somes,  10  L.  R.  A. 
255,  holding  one  liable  for  collecting  water  into  artificial  channels  and  casting 
it  upon  neighbor's  land. 
Abatement    of   action. 

Cited  in  Pennsylvania  Co.  v.  Davis,  4  Ind.  App.  54,  29  N.  E.  425,  holding 
action  for  negligently  causing  child's  death  does  not  abate  on  father's  death; 
Union  Sav.  Bank  &  T.  Co.  v.  Western  U.  Teleg.  Co.  79  Ohio  St.  98,  128  Am.  St. 
Rep.  675,  86  N.  E.  478,  holding  action  for  trespass  to  realty  may  be  revived  in 
the  name  of  the  executor  or  administrator  of  deceased  plaintiff. 
Appeal;  v.  lint  revlewable. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Indiana  Horseshoe  Co.  154  Ind. 
324,  56  N.  E.  766,  and  Dudley  v.  Pigg,  149  Ind.  369,  48  N.  E.  642,  holding  rulings 
on  motion,  not  part  of  record,  not  considered;  Thomas  v.  Griffin,  1  Ind.  App. 
459,  27  N.  E.  754,  holding  bill  of  exceptions  tiled  after  close  of  term,  on  leave, 
will  not  embrace  motions  upon  framing  issues. 

5  L.  R.  A.  130,  UNITED  STATES  v.  KOCH,  40  Fed.  250. 
Trade-marks    and    trade-names. 

Cited  in  footnotes  to  Carsons  v.  Ury,  5  L.  R.  A.  614,  which  authorizes  injunc- 
tion against  counterfeit  of  union  label ;  Chadwick  v.  Covell,  6  L.  R.  A.  839,  which 
holds  grantee  from  other  than  exclusive  owner  of  trade-mark  to  medicine  made 
according  to  secret  recipes  not  entitled  to  use  by  others. 

Cited  in  notes  (5  L.  R.  A.  599)  on  trade-marks  under  United  States  statutes; 
(6  L.  R.  A.  823)  on  trade-name  and  trade-mark;  (9  L.  R.  A.  147)  on  when  prop- 
erty in  trademark  attaches;  (25  L.R.A.(X.S.)  475)  on  validity  of  penal  statute 
to  protect  trademarks. 

5  L.  R.  A.  132,  LOUISVILLE,  N.  O.  &  T.  R.  CO.  v.  STATE,  66  Miss.  662,  2  Inters. 

Com.  Rep.  615,  14  Am.  St.  Rep.  599,  6  So.  203. 

Affirmed  in  133  U.  S.  587,  33  L.  ed.  784,  2  Inters.  Com.  Rep.  801,  10  Sup.  Ct. 
Rep.  348. 


803  L.  E.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  137 

Civil    rinlit   of   negroes. 

Cited  in  Plessy  v.  Ferguson,  163  U.  S.  548,  41  L.  ed.  259,  16  Sup.  Ct.  Rep.  1138, 
Affirming  45  La.  Ann.  85,  18  L.  R.  A.  642,  11  So.  948,  upholding  act  requiring 
separable  or  separate  cars  for  white  and  black  races;  Anderson  v.  Louisville  & 
N.  R.  Co.  62  Fed.  50,  upholding  act  requiring  separate  cars  for  whites  and  blacks; 
Chesapeake  &  O.  R.  Co.  v.  Kentucky,  179  U.  S.  391,  45  L.  ed.  246,  21  Sup.  Ct. 
Rep.  101,  holding  separable  coach  act  for  blacks  and  whites  valid  as  to  state  pas- 
sengers; Chilton  v.  St.  Louis  &  I.  M.  R.  Co.  114  Mo.  93,  19  L.  R.  A.  271,  21  S. 
W.  457,  holding  negress  may  be  removed  from  ladies'  car  when  she  has  seat 
offered  in  equally  commodious  and  comfortable  car;  State  ex  rel.  Abbott  v.  Hicks, 
44  La.  Ann.  775,  11  So.  74,  holding  act  requiring  train  officials  to  assign  passen- 
gers according  to  color,  invalid  as  applied  to  interstate  passenger;  State  v. 
Treadaway,  126  La.  313,  139  Am.  St.  Rep.  514,  52  So.  500,  20  Ann.  Cas.  1297,  to 
the  point  that  word  "colored"  in  statute  is  used  to  designate  negroes  proper  and 
persons  of  mixed  negro  blood. 

Cited  in  footnote  to  Cecil  v.  Green,  32  L.  R.  A.  566,  which  holds  drug  store 
where  soda  water  sold  not  place  of  accommodation  and  amusement  within  civil 
rights  act. 

Cited  in  notes   (18  L.R.A.  641)   on  rights  of  colored  passengers;    (25  Am.  St. 
Rep.  876)   on  14th  amendment  as  to  special  privileges,  burdens  and  restrictions 
founded  on  race;   (45  L.  ed.  U.  S.  245)  on  separate  coach  acts. 
Application   of   state    statutes   to    Interstate   commerce. 

Cited  in  McCabe  v.  Atchison,  T.  &  S.  F.  R.  Co.  109  C.  C.  A.  110,  186  Fed.  973, 
to  the  point  that  state  statute  regulating  carrying  of  white  and  colored  passen- 
gers within  state  does  not  interfere  with  interstate  commerce;  State  ex  rel.  Cole- 
man  v.  Western  U.  Teleg.  Co.  75  Kan.  624,  90  Pac.  299,  holding  that  provision  of 
statute  requiring  any  foreign  corporation,  as  a  condition  precedent  to  doing  busi- 
ness within  the  state,  to  perform  certain  acts,  does  not  apply  to  companies 
doing  wholly  interstate  business. 

Cited  in  notes  (27  Am.  St.  Rep.  568)  on  state  regulation  of  interstate  com- 
merce; (62  Am.  St.  Rep.  291)  on  state  regulation  of  rates  as  interference  with 
interstate  commerce. 

5  L.  R.  A.  135,  THIXGVALLA  LINE  v.  UNITED  STATES,  24  Ct.  Cl.  255. 
Jurisdiction  of  claims  dependent  on  treaty. 

Cited  in  Hayes  v.  United  States,  44  Ct.  Cl.  498,  holding  that  section  1066,  Re- 
vised Statutes,  forbidding  jurisdiction  of  claims  dependent  on  treaty,  does  not 
apply  to  cases  transmitted  under  Bowman  Act. 
Treaty  guaranties  to  aliens. 

Cited  in  note   (16  L.R.A.  277)  on  treaty  guaranties  to  aliens. 

5  L.  R.  A.  137,  HAXGEX  v.  HACHEMEISTER,  114  N.  Y.  566,  11  Am.  St.  Rep. 

691,  21  N.  E.  1046. 
Retention  of  ponseNslon  or  sale  of  goods  by  pledgeor  or  mortgagor 

Cited  in  Spurr  v.  Hall,  46  App.  Div.  457,  61  N.  Y.  Supp.  854,  holding  chattel 
mortgage  not  fraudulent  because  a  little  nay,  covered  by  mortgage,  by  consent 
of  mortgagee  was  fed  to  mortgaged  horses;  13osliart  v.  Kirley  34  Misc.  246,  69 
N.  Y.  Supp.  623,  holding  that  facts  disclosed  intention  that  mortgagor  should 
remain  in  possession  of  chattels  in  fraud  of  creditors;  Hardt  v.  Deutsch,  30  App. 
Div.  591,  52  X.  Y.  Supp.  335,  holding  that  mortgagee  may  retain  possession  of 
property  under  voidable  mortgage  voluntarily  delivered  by  mortgagor;  Hardt  v. 
Deutsch,  22  Misc.  68,  48  X.  Y.  Supp.  564,  holding  agreement  that  mortgagor  may 
sell  mortgaged  chattels  in  course  of  trade,  without  applying  proceeds  to  debt, 


5  L.R.A.  137]  L.  R.  A.  CASES  AS  AUTHORITIES.  804 

voids  mortgage;  Hedges  v.  Polhemus,  9  Misc.  681,  30  X.  Y.  Supp.  006,  holding 
reservation  in  chattel  mortgage  of  right  to  use  some  tilings  mortgaged,  involving 
their  consumption,  voids  mortgage;  Wise  v.  Rider,  68  N.  Y.  S.  R.  718,  34  N.  Y. 
Supp.  782,  holding  sales  made  by  chattel  mortgagor  for  a  few  days,  in  absence  of 
evidence  of  agreement  with  mortgagee,  does  not  render  mortgage  void ;  Jackson 
v.  Kincaid,  4  Okla.  579,  46  Pac.  587,  holding  pledge  invalid  unless  possession 
taken  by  pledgee;  Sparks  v.  Brown,  46  Mo.  App.  538,  holding  evidence  of  agree- 
ment to  allow  mortgagor  to  retain  and  sell  mortgaged  chattels  admissible;  Vree- 
land  v.  Pratt,  42  N.  Y.  S.  R.  583,  17  N.  Y.  Supp.  307,  holding  unfiled  chattel 
mortgage  vaiid  as  against  creditors  in  absence  of  agreement  that  mortgagor  was 
to  remain  in  possession;  Re  Filley,  47  N.  Y.  S.  R.  434,  20  N.  Y.  Supp.  427,  1 
Power  239,  discussing  requirement  of  bond  covering  property  alleged  to  be  fraud- 
ulently conveyed  by  executor;  Wise  v.  Rider,  68  N.  Y.  S.  R.  717,  34  X.  Y.  Supp. 
782,  holding  validity  of  chattel  mortgage  to  secure  valid  debt  not  affected  by  in- 
validity of  prior  mortgages;  Re  Carpenter,  125  Fed.  835,  holding  secret  condi- 
tional purchase  of  goods  for  resale  invalid  as  against  trustee  of  bankrupt  ven- 
dee; Skillen  v.  Endelman,  39  Misc.  263,  79  X.  Y.  Supp.  413,  holding  mortgage 
invalidated  by  secret  understanding  that  mortgagor  may  dispose  of  property; 
Pontiac  Buggy  Co.  v.  Skinner,  158  Fed.  868,  on  the  invalidity  of  chattel  mort- 
gages giving  mortgagor  right  to  sell  for  his  own  benefit;  Re  Hartman,  185  Fed. 
200,  holding  that  chattel  mortgage  with  provision  permitting  mortgagor  to  sell 
goods  and  to  use  proceeds  for  support  of  family  and  to  replenish  stock,  is  void 
as  to  creditors;  Citizen's  State  Bank  v.  Brown,  110  Minn.  180,  124  N.  W.  990, 
holding  a  chattel  mortgage  void  as  a  matter  of  law  as  to  creditors  where  there  was 
a  tacit  agreement  that  the  mortgagor  could  at  any  time  sell  the  property  and 
apply  the  proceeds  to  his  own  benefit;  Zartman  v.  First  Xat.  Bank,  189  N.  Y. 
273,  12  L.R.A.(X.S.)  1086,  82  N.  E.  127,  Affirming  109  App.  Div.  409,  96  X.  Y. 
Supp.  633,  holding  provision  in  a  chattel  mortgage  allowing  mortgagor  to  sell 
for  his  own  benefit,  rendered  the  mortgage  void  as  a  matter  of  law  as  to  credit- 
ors; Skilton  v.  Codington,  185  X.  Y.  90,  113  Am.  St.  Rep.  885,  77  X.  E.  790,  hold- 
ing chattel  mortgage  void  as  a  matter  of  law,  where  it  gave  the  mortgagor  the 
power  to  sell  the  goods  and  apply  them  in  satisfaction  of  the  mortgage,  except 
that  he  should  be  entitled  to  a  certain  amount  of  the  proceeds  to  aid  in  re- 
plenishing stock. 

Cited  in  footnote  to  Marks  v.  Miller,  14  L.  R.  A.  190,  which  holds  presumption 
£>i  fraud  for  retention  of  chattels  covered  by  unrecorded  mortgage  not  conclusive. 

Cited  in  notes  (18  L.  R.  A.  609)  on  effect  on  validity  of  mortgage  of  merchan- 
dise, of  provision  or  agreement  giving  mortgagor  possession  with  power  of  sale; 
•(23  L.R.A.  477)  on  sale  or  mortgage  of  future  crops;  (15  Am.  St.  Rep.  914;  35 
L.  ed.  U.  S.  172)  on  effect  of  permission  to  chattel  mortgagor  to  retain  posses- 
sion and  sell  chattels. 

Distinguished  in  Re  Perlhefter,  177  Fed.  304,  holding  that  a  chattel  mortgage 
was  not  void  as  a  matter  of  law  though  the  mortgagor  had  the  right  to  sell, 
•where  he  was  to  apply  the  proceeds  on  the  payment  of  the  mortgage;  Glover  v. 
Ehrlich,  62  Misc.  248,  114  X.  Y.  Supp.  992,  holding  that  where  there  was  no 
.agreement  that  the  mortgagor  could  sell  for  his  own  benefit,  the  fact  that  he 
retained  possession  with  right  to  sell  for  mortgagee's  benefit  did  not  render  the 
mortgage  void. 
Rig-lit  of  administrator  to  avoid  fraudulent  conveyance  of  ilecedent. 

Cited  in  footnote  to  Blackman  v.  Baxter,  70  L.R.A.  250.  which  sustains  right 
of  general  creditors  of  insolvent  estate  to  attack  through  administrator  chattel 
mortgage  not  recorded  before  mortgagor's  death,  under  statute  making  mort- 
gage invalid,  where  mortgagor  retains  possession  of  chattels. 


805  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  UI 

Cited  in  note  (135  Am.  St.  Rep.  333)  on  right  of  administrator  to  avoid  fraud- 
ulent conveyance  of  decedent. 
Proof  of  valae  of  property. 

Cited  in  Devlin  v.  Xew  York,  4  Misc.  100.  24  X.  Y.  Supp.  116,  holding  evidence 
of  what  overcoat,  lost  in  bathing  establishment,  cost,  sufficient  to  establish  value 
at  time  of  loss;  Bowdish  v.  Page.  81  Hun,  177.  30  N.  Y.  Supp.  691,  holding  evi- 
dence of  price  at  which  goods  sold  competent  in  action  for  conversion;  Rhein- 
feldt  v.  Dahlman,  19  Misc.  168,  43  N.  Y.  Supp.  281,  holding  price  paid  for  article 
some  evidence  of  its  value:  Waterman  v.  American  Pin  Co.  19  Misc.  040.  44  X. 
Y.  Supp.  410,  holding  cost  price  sufficient  upon  which  to  base  judgment  as  to 
value;  Bini  v.  Smith.  36  App.  Div.  466,  55  N.  Y.  Supp.  822,  holding  cost  of  prop- 
erty insured  some  evidence  of  its  value  at  time  of  loss;  Kyd  v.  Cook,  56  Xeb.  76, 
71  Am.  St.  Rep.  661,  76  X.  W.  524,  holding  damages  for  loss  of  credit  recoverable; 
Smith  v.  Mine  &  S.  Supply  Co.  32  Utah,  30,  88  Pac.  683,  holding  that  evidence 
of  the  cost  price  of  household  goods  was  admissible  to  aid  in  determining  the 
actual  value. 

Cited  in  notes  (30  Am.  St.  Rep.  39)  on  adinissibility  of  nonexpert  opinions  as 
to  value  of  property;    (31  Am.  St.  Rep.  734)   on  mode  of  proving  value  of  rail- 
road property. 
Exclusion    of   irrelevant    evidence. 

Cited  in  State  v.  Marcks,  140  Mo.  677,  43  S.  W.  1095,  holding  irrelevant  evi- 
dence may  be  excluded  before  final  submission  to  jury. 
Exception   to  admission   of  evidence. 

Cited  in  Kissinger  v.  Staley,  44  Xeb.  786,  63  N.  W.  55,  holding  motion  to  strike 
out  irresponsive  evidence  should  be  made  and  exception  taken  to  refusal ;  Wilson 
v.  Boasberg,  1  Misc.  437,  21  N.  Y.  Supp.  915,  holding  general  exception  to  evi- 
dence, without  motion  thereafter  to  strike  out  testimony,  presented  no  question 
on  appeal:  Caldwell  v.  State,  50  Fla.  8,  39  So.  188,  holding  that  in  order  to  re- 
view an  exception  to  evidence  previously  given  there  must  have  been  a  motion 
to  strike  out  or  to  direct  jury  to  disregard  the  same,  which  was  refused  and 
excepted  to. 

Cited  in  note  (8  L.  R.  A.  608)  as  to  when  exceptions  to  ruling  must  be  taken. 
Loss  of  credit  as  damages. 

Cited  in  Tootle  v.  Kent,  12  Okla.  689,  73  Pac.  310,  holding  loss  of  credit  an 
element  of  damages  for  wrongfully  closing  store  under  mortgage. 

5  L.  R.  A.  141,  WILSOX  v.  FIXE,  40  Fed.  52. 

Power   of    land    department    to    cancel    pre-emption    certificates. 

Cited  in  American  Mortg.  Co.  v.  Hopper,  48  Fed.  48,  holding  Land  Depart- 
ment cannot  of  its  own  authority  cancel  pre-emption  law  final  certificate; 
Northern  P.  R.  Co.  v.  Barnes,  2  X.  D.  373,  51  X.  W.  386,  holding  proper  home- 
stead entry  indefeasible  except  on  pre-emptors  default;  Bash  v.  Cascade  Min.  Co. 
29  Wa-h.  54.  09  Pac.  402.  holding  that  certificate  stands  in  place  of  patent. 

Cited  in  notes  (9  L.R.A.  777)  on  homestead  on  public  land;  (75  Am.  St.  Rep. 
881)  on  right  of  entryman  to  notice  and  hearing  before  cancelation  of  entry. 

Distinguished  in  German  Ins.  Co.  v.  Hayden,  21  Colo.  13S.  52  Am.  St.  Rep. 
200.  40  Pac.  453,  upholding  cancelation  of  entry  by  Land  Department,  land  not 
being  subject  to  entry. 

Disapproved  in  Pierce  v.  Frace,  2  Wash.  92,  26  Pac.  194.  and  Parsons  v.  Venzke. 
4  X.  D.  470.  50  Am.  St.  Rep.  669,  61  X.  W.  1036.  holding  Land  Department  has 
power  to  cancel  entry  cfrtillcate:  Am«-ri<-an  Mortg.  Co.  v.  Hopper,  12  C.  C.  A.  294, 
29  U.  S.  App.  12,  64  Fed.  554.  Affirming  56  Fed.  69,  upholding  Land  Department's 


5  L.K.A.  141]  L.  R.  A.  CASES  AS  AUTHORITIES.  806 

power  to  cancel  pre-emption  certificate,  where  entry  is  fraudulently  made,  though 
final  certificate  issued. 

5  L.  R.  A.  143,  DUNDAS  v.  LANSING,  75  Mich.  499,  13  Am.  St.  Rep.  457,  42 

N.  W.  1011. 
Municipal  liability   for  defective  sidewalk. 

Cited  in  footnotes  to  Shelby  v.  Clagett,  5  L.  R.  A.  606,  which  holds  that  ex- 
haustion of  corporate  funds  does  not  relieve  from  liability  for  injury  by  defective 
sidewalk;  Teagar  y.  Flemingsburg,  53  L.  R.  A.  791,  which  holds  mere  building 
of  step  in  sidewalk  not  negligence  rendering  city  liable  for  injury  to  pedestrians; 
Harden  v.  Jackson,  66  L.R.A.  986,  which  holds  plank  sidewalk  not  so  unsafe  as 
to  render  city  liable  to  one  falling  thereon  because  his  cane  goes  through,  al- 
though the  edges  of  planks  have  become  so  decayed  as  not  to  withstand  pressure 
of  cane. 

Cited  in  notes  (10  L.  R.  A.  737)  on  duty  of  municipality  to  keep  streets  and 
sidewalks  in  safe  condition;  (19  L.  R.  A.  454)  on  distinction  between  public  and 
private  functions  of  municipal  corporations  in  respect  to  liability  for  negligence; 
(103  Am.  St.  Rep.  282;  20  L.R.A.(N.S-)  665,  698,  708,  719)  on  liability  of  munic- 
ipality for  defects  or  obstructions  in  streets. 
Evidence  of  declarations  a*  to  injuries. 

Cited  in  Jones  v.  Portland,  88  Mich.  605,  16  L.  R.  A.  440,  50  N.  W.  731,  holding 
statement  by  injured  person  to  attending  physician  as  to  cause,  inadmissible; 
Huron  Printing  &  Bindery  Co.  v.  Kittleson,  4  S.  D.  525,  57  N.  W.  233,  holding 
declarations  admissible  where  part  of  the  transaction;  Fallon  v.  Rapid  City,  17 
S.  D.  577,  97  N  W.  1009,  holding  statements  made  to  the  plaintiff's  mother  after 
the  accident  that  the  former  had  injured  her  foot  was  not  competent  evidence  as 
a  part  of  the  res  gestae. 

Cited  in  note  (20  Am.  St.  Rep.  518)  on.  hearsay  evidence  as  to  injuries. 
Evidence  admissible  as  part  of  res  grestnte. 

Cited  in  Drake  Coal  Co.  v.  Croze,  165  Mich.  125,  130  N.  W.  355,  holding  that 
letter  written  by  party  after  time  contract  is  alleged  to  have  been  made  is  not 
admissible  to  corroborate  such  party  as  to  what  contract  was. 

Cited  in  note  (16  Am.  St.  Rep.  22,  407)  on  what  constitutes  res  gestae. 
Physician's    opinion     of    cause. 

Cited  in  Jones  v.  Portland,  88  Mich.  605,  16  L.  R.  A.  440,  50  N.  W.  731,  holding 
testimony  of  physician  as  to  cause  of  injuries  inadmissible;  Lyon  v.  Grand 
Rapids,  121  Wis.  620,  99  N.  W.  311,  holding  that  a  question  to  a  physician  as  to 
what  caused  a  particular  diseased  condition  of  plaintiff,  basing  his  opinion  on 
the  fact  that  she  had  testified  truly,  was  not  reached  by  the  objection  that  it  was 
incompetent,  and  did  not  prevent  him  from  going  outside  the  field  of  scientific 
knowledge. 
Wotice  of  defects  in  hiuh  wi>  y. 

Cited  in  Fuller  v.  Jackson,  82  Mich.  484,  46  N.  W.  721,  holding  knowledge  by 
street  commissioner  or  alderman  notice  to  city  of  defect  in  walk ;  Platz  v.  McKean 
Twp.  178  Pa.  611,  36  Atl.  136,  holding  notice  to  supervisor,  notice  to  township 
of  highway  defect;  Cunningham  v.  Thief  River  Falls,  84  Minn.  25,  86  N.  W.  763, 
"holding  notice  to  mayor  of  defect  in  street,  notice  to  city;  Miller  v.  Mullan,  17 
Idaho,  43,  104  Pac.  660,  on  the  sufficiency  of  notice  to  munic:pality  of  defective 
condition  of  sidewalk;  McEvoy  v.  Sault  Ste.  Marie,  136  Mich.  175,  98  N.  W.  1006, 
liolding  actual  notice  to  superintendent  of  streets  is  notice  to  the  city  of  defec- 
tive condition  of  streets;  Nothdurft  v.  Lincoln,  66  Neb.  440,  96  N.  W.  163,  hold- 


807  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  143 

ing  that  notice  of  defective  sidewalk  must  be  established  by  evidence  and  can- 
not be  left  to  mere  conjecture  or  inference  of  the  jury. 

Cited  in  footnote  to  Cleveland  v.  Payne,  70  L.R.A.  841,  which  holds  policeman's 
knowledge  of  defect  in  street  not  such  notice  to  city  as  to  make  it  responsible 
for  damages  resulting  from  defect. 

Cited  in  notes  (10  L.R.A.  738)  on  notice  of  defect  in  sidewalk;  (30  Am.  St. 
Rep.  525)  on  notice  of  defects  in  streets. 

Distinguished  in  Fuller  v.  Jackson.  92  Mich.  205,  52  N.  W.  1075  holding  actual 
notice  of  general   broken   and   unsafe   condition   of   piece  of   sidewalk,  notice  of 
particular  defects. 
Notice    of    claim    for    injnry. 

Cited  in  Dollar  v.  Marquette,  123  Mich.  192,  82  N.  W.  36,  requiring  council  to 
act  on  notice  of  claim  for  injury  duly  presented,  without  demanding  as  con- 
dition appearance  with  witnesses  before  council. 

Cited  in  note    (10  L.  R.  A.  739)   on  presentation  of  claims  for  damages  from 
defective  sidewalk. 
Evidence  of  other  defects. 

Cited  in  Tice  v.  Bay  City,  78  Mich.  210,  44  N.  W.  52,  holding  evidence  of 
defective  condition  of  walk  at  other  places  beyond  defect  causing  injury,  inad- 
missible. 

Distinguished  in  Boyle  v.  Saginaw,  124  Mich.  350,  82  N.  W.  1057,  holding 
evidence  of  condition  of  walk  in  close  proximity  to  defect  causing  injury,  com- 
petent to  charge  city  with  notice;  Campbell  v.  Kalamazoo,  80  Mich.  660,  45  X.  W. 
G52,  holding  evidence  of  defective  condition  of  entire  walk  before  premises  com- 
petent to  show  notice  to,  and  negligence  of,  city,  where  exact  place  of  accident  not 
alleged. 
Contributory  negligence. 

Cited  in  Engel  v.  Smith,  82  Mich.  7,  21  Am.  St.  Rep.  549,  46  N.  W.  21 ;  Colum- 
bus v.  Strassner,  124  Ind.  487,  25  N.  E.  65 ;  Becker  v.  Detroit  Citizens'  Street  R. 
Co.  121  Mich.  586,  80  N.  W.  583, —  all  holding  question  of  contributory  negligence 
for  jury  when  testimony  conflicting  or  facts  doubtful;  Brezee  v.  Powers,  80 
Mich.  183,  45  N.  W.  130,  holding  contributory  negligence  for  jury  when  to  be 
determined  by  inference  from  facts  and  circumstances  about  which  honest,  in- 
telligent, and  impartial  men  might  differ;  Graves  v.  Battle  Creek,  95  Mich.  272, 
19  L.  R.  A.  643,  35  Am.  St.  Rep.  561,  54  X.  W.  757,  holding  excuse  for  nonatten- 
tion  for  jury  where  plaintiff  could  have  seen  defect,  but  became  frightened  and 
hurried  on  just  before  stumbling;  Vergin  v.  Saginaw,  125  Mich.  502.  84  X.  \V. 
1075,  holding  person  not  necessarily  negligent  in  stepping  into  hole  in  walk, 
filled  with  snow  and  ice,  where  defect  not  in  mind  at  time,  although  known; 
Sias  v.  Reed  City,  103  Mich.  314,  61  X'.  W.  502,  holding  person  knowing  of 
defect  in  walk  and  watching  for  it  not  precluded  from  recovery  for  injuries  when 
reaching  it  sooner  than  expected;  Chicago  v.  Fitzgerald,  75  111.  App.  179,  holding 
lor  jury  question  of  ordinary  care  in  use,  after  dark,  of  sidewalk  known  to 
have  defect,  which  was  discovered  too  late  to  be  avoided ;  Finn  v.  Adrian,  93  Mich. 
507,  53  X.  \V.  614,  holding  knowledge  of  street  being  repaved,  and  crosswalk  par- 
tially torn  up  eight  days  before,  not  sufficient  to  charge  with  contributory  negli- 
gence in  attempting  to  cross  on  dark  night;  Schwingschlegl  v.  Monroe,  113  Mich. 
€85,  72  X.  \Y.  7,  holding  familiarity  with  unsafe  condition  of  sidewalk  will  not 
preclude  recovery,  if  caution  of  prudent  man  used;  Haines  v.  Lake  Shore  & 
M.  S.  R.  Co.  129  Mich.  484,  89  X.  W.  349,  holding  one  who  stopped  75  feet  from 
track  to  look  and  listen,  not  guilty  of  negligence;  Styles  v.  Decatur,  131  Mich. 
448,  91  X.  \V.  622,  holding  it  question  for  jury  whether  contributory  negligence 


5  L.R.A.  343]  L.  R.  A.  CASES  AS  AUTHORITIES.  808 

to  pass  over  walk  knowing  boards  to  be  loose;  Ramsay  v.  C.  K.  Eddy  &  Sons, 
123  Mich.  164,  82  N.  W.  129  (dissenting  opinion),  majority  holding  brakeiuan 
switching  in  daytime  guilty  of  contributory  negligence  in  being  caught  by  pro- 
jecting boards,  visible  if  he  looked;  Carson  v.  Genesee,  9  Idaho.  240.  108  Am.  St. 
Rep.  127,  74  Pac.  862,  holding  previous  knowledge  of  defective  condition  of  high- 
wav  is  not  per  se  evidence  of  negligence  in  person  in  using  same;  Belyea  v.  Port 
Huron,  136  Mich.  507,  99  X.  W.  740,  holding  that  a  man  is  not  precluded  from 
recovering  for  personal  injuries  because  he  used  a  sidewalk  which  he  knew  to  be 
in  a  defective  condition,  if  he  used  such  care  as  the  danger  required  from  a  pru- 
dent man;  Hodge  v.  St.  Louis,  146  Mich.  180,  109  X.  W.  252  (dissenting  opinion), 
on  the  use  of  defective  sidewalk  with  notice  of  its  condition,  as  contributory 
negligence;  Scharman  v.  Bay  County  Bridge  Commission.  158  Mich.  82,  122  X.  W. 
1098,  holding  that  bicyclist  riding  off  unguarded  end  of  open  drawbridge  in  dark 
is  not  negligent,  as  matter  of  law. 

Cited  in  footnote  to  Wheat  v.  St.  Louis,  64  L.R.A.  292,  which  holds  that  one 
attempting  to  turn  horse  and  milk  wagon  around  in  vicinity  of  manhole  which 
he  knows  projects  above  the  surface  of  the  street,  guilty  of  contributory  negli- 
gence. 

Cited  in  notes  (10  L.  R.  A.  740)  on  contributory  negligence  as  defense  for 
injury  from  defective  sidewalk;  (13  L.  R.  A.  729)  as  to  determination  by  jury  of 
question  of  negligence;  (16  L.R.A.(X.S.)  464)  on  negligence  in  attempting  to 
cross,  after  dark,  defective  or  obstructed  street;  (17  L.R.A.(X.S.)  200)  on  negli- 
gence in  falling  on  uneven  sidewalk;  (21  L.R.A.(X.S.)  638,  640)  on  contributory 
negligence  as  affecting  municipal  liability  for  defects  and  obstructions  in  streets. 

Distinguished  in  Irion  v.  Saginaw,  120  Mich.  298.  79  X.  W.  573,  holding  that- 
pedestrian  cannot  recover  for  injury  from  defective  sidewalk,  where,  knowing  of 
defect  in  walk,  and  of  necessity  of  care,  he  chances  safety  without  necessity: 
Benedict  v.  Port  Huron,  124  Mich.  605,  83  X.  W.  614,  holding  momentary  forget- 
fulness  of  conditions  not  excuse  for  failure  to  act  on  information  thereof;  Cloney 
v.  KalamazoOj  124  Mich.  660,  83  X.  W.  618,  holding  one  approaching  crossing 
known  to  be  torn  up,  and  when  sufficiently  lighted  to  observe,  guilty  of  contribu- 
tory negligence  in  walking  off  walk  without  looking;  King  v.  Colon  Twp.  125 
Mich.  515,  84  N.  W.  1077,  holding  girl  fourteen  years  old,  knowing  of  hole 
in  highway,  guilty  of  contributory  negligence  when,  if  looking,  she  would  have 
seen  it. 
As  question  for  the  jury. 

Cited  in  McCormick  v.  Detroit,  G.  H.  &  M.  R.  Co.  141  Mich.  21,  104  X.  W.  390r 
holding  that  the  question  of  contributory  negligence  was  for  the  jury,  in  action 
for  personal  injuries,  by  reason  of  defective  condition  of  station  platform  where 
plaintiff  knew  of  the  defective  condition;  Wiens  v.  Ebel,  69  Kan.  704,  77  Pac.  553. 
holding  contributory  negligence  was  for  the  jury  in  action  for  personal  injuries 
sustained  while  using  street  known  to  be  in  a  defective  condition:  Hunter  v. 
Durand,  137  Mich.  50,  100  X.  W.  191,  holding  same  where  plaintiff  knew  of 
defective  condition  of  a  sidewalk,  but  knew  some  repairs  had  been  made;  Branch 
v.  Klatt,  165  Mich.  671,  131  N.  W.  107,  holding  that  question  of  contributory 
negligence  was  for  jury  where  person  leaving  theater  in  dark  fell  down  an  un- 
expected step. 

Distinguished  in  Tracey  v.  South  Haven  Twp.  132  Mich.  496,  93  X.  W.  1065, 
holding  that  where  there  was  no  care  at  all  the  court  could  say  that  there  was  not 
due  care. 
A  ;i  1:1  isxi  Itilil  y   of   testimony  to   impeach   party's  own   witness. 

Cited  in  Western  U.  Teleg.  Co.  v.  Xorthcutt,  158  Ala.  561,  132  Am.  St.  Rep. 


£09  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  152 

38,  48  So.  553,  holding  plaintiff  could  not  ask  his  own  witness  a  question  for  the 

purpose  of  impeaching  the  latter's  credit,  where  testimony  contradicted  his  own. 

Cited  in  note   (82  Am.  St.  Rep.  63)   on  impeachment  of  party's  own  witness. 

5  L.  R.  A.  150,  COLLAMORE  v.  GILLIS,  149  Mass.  578,  14  Am.  St.  Rep.  460, 

22  N.  E.  46. 
Fixtures,    what    are. 

Cited  in  filler  v.  Waddingham  (Cal.)  11  L.  R.  A.  511,  25  Pac.  688,  holding 
permanent  building  on  mudsills  by  vendee  under  land  contract,  fixture;  Re  New 
York  City  (Re  Improvement  of  Water  Front)  192  NT.  Y.  302,  18  L.R.A.(X.S.) 
426,  127  Am.  St.  Rep.  903,  84  N.  E.  1105,  holding  that  anything  that  was  capable 
of  being  removed  from  the  premises,  without  substantial  injury  to  the  freehold 
•was  not  a  fixture,  as  between  tenant  and  landlord. 

Cited  in  footnotes  to  Leonard  v.  dough,  16  L.  R.  A.  306,  which  holds  a  barn 
placed  by  owner  on  own  land  or  which  stands  resting  on  surface  a  fixture; 
Demby  v.  Parse,  12  L.  R.  A.  87,  which  holds  buildings  erected  by  third  person 
on  land  in  life  tenant's  possession  not  removable  against  remainderman's  objec- 
tion. 

Cited  in  notes   (6  L.R.A.  249,  10  L.R.A.  723,  724;   12  Eng.  Rul.  Cas.  226)   on 
what  constitutes  fixtures. 
Fixture**;    rights   of  landlord  and  tenant. 

Cited  in  Baker  v.  McClurg,  198  111.  34,  59  L.  R.  A.  133,  footnote  p.  131,  92 
Am.  St.  Rep.  261,  64  N.  E.  701,  Affirming  96  111.  App.  171,  which  sustains  tenant's 
right  to  remove  as  trade  fixtures,  ovens  and  engine  boilers  placed  by  him  in 
bakery  building  with  intent  to  remove;  John  P.  Squire  &  Co.  v.  Portland,  106 
Me.  240,  30  L.R.A.  (X.S.)  580,  76  Atl.  679,  20  Ann.  Cas.  603,  holding  that  fixture 
can  be  removed  by  tenant  only  when  it  will  cause  no  material  injury  to  premises. 

Cited  in  footnotes  to  Wright  v.  Du  Bignon,  57  L.  R.  A.  669,  which  denies 
right  of  tenant  to  remove  fixtures  annexed  by  him  to  freehold;  Sanitary  Dist.  v. 
Cook,  39  L.  R.  A.  369,  which  denies  right  to  remove,  after  new  lease  expires, 
trade  fixtures  erected  by  tenant;  Western  &  A.  R.  Co.  v.  State,  14  L.  R.  A.  438, 
which  holds  railroad  lessee  not  entitled  to  substitute  old  rails  and  appliances  at 
end  of  term;  Radey  v.  McCurdy,  67  L.R.A.  359,  which  holds  insertion  in  renewal 
lease  of  provision  entitling  tenant  to  remove  trade  fixtures  not  necessary  to  en- 
able him  to  remove  such  fixtures  before  termination  of  extended  period;  Bergh 
v.  Herring-Hall-Marvin  Safe  Co.  70  L.R.A.  756,  which  holds  boilers,  engines, 
shafting,  and  heating  apparatus  placed  in  building  by  tenant  to  carry  on  busi- 
ness therein  and  capable  of  easy  removal  without  injury  to  building  removable 
as  trade  fixtures. 

Cited  in  notes  (9  L.R.A.  700)  on  tenant's  right  to  remove  fixtures;  (18  L.R.A. 
(N.S.)  424)  on  tenant's  right  to  remove  trade  fixtures  as  dependent  upon  re- 
movability without  injury  to  themselves. 

Xot  followed  in  Hertzberg  v.  Witte,  22  Tex.  Civ.  App.  321,  54  S.  W.  921,  hold- 
ing taking  new  lease  does  not  defeat  tenant's  right  to  remove  buildings  reserved 
in  old  lease. 

5  L.  R.  A.  152.  PAGE  v.  HIGGIXS,  150  Mass.  27,  22  N.  E.  63. 
Mitttnke,    when    relief   obtainable. 

Cited  in  Corbett  v.  Craven,  196  Mass.  321,  82  X.  E.  37,  holding  that  the  mistake 
which  is  the  ground  for  equitable  relief,  must  be  a  mutual  mistake  and  not  of 
one:  Eustis  Mfg.  Co.  v.  Saco  Brick  Co.  198  Mass.  218,  84  X.  E.  449,  holding  that 
where  by  a  mistake  of  fact  the  instrument  does  not  set  forth  correctly  the  r  >n- 
tract,  equity  will  reform  it  so  that  it  will;  Tourtillotte  v.  Tourtillotte,  205  Mass. 


6  L.R.A.  152]  L.  E.  A.  CASES  AS  AUTHORITIES.  810 

552,  91  N.  E.  909,  to  the  point  that  mutual  mistake  in  deed  may  be  corrected  in 
equity. 

Annotation  cited  in  Allen  v.  Kitchen,  16  Idaho,  148,  —  L.R.A. (N.S.)  — ,  100 
Pac.  1052,  holding  court  of  equity  has  no  authority  to  reform  contract  not  suf- 
ficient within  the  statute  of  frauds;  Errett  v.  Wheeler,  109  Minn.  165,  26  L.R.A. 
(N.S.)  820,  123  N.  W.  414,  on  the  right  to  relief  in  equity  because  of  mistake 
of  law. 

Cited  in  footnotes  to  Bigham  v.  Madison,  47  L.  R.  A.  267,  which  authorizes 
rescission  for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor;  Alton  v.  First  Nat.  Bank,  18  L.  R.  A.  144,  which  denies  indorsee's  right 
to  recover  back  amount  paid  under  mistaken  belief  as  to  liability;  Langevin  v. 
St.  Paul,  15  L.  R.  A.  766,  which  holds  agent's  mistaken  belief  that  all  of  lots 
jointly  sold  for  taxes  belonged  to  principal  not  ground  to  recover  back  any  of 
redemption  money;  Och  v.  Missouri,  K.  &  T.  R.  Co.  36  L.  R.  A.  442,  which  holds 
release  by  woman  while  dazed  and  nervous  from  shock  in  railway  accident  binding 
on  her,  though  obtained  by  misrepresenting  contents. 

Cited  in  notes  (12  L.  R.  A.  273)  on  equity  jurisdiction  to  correct  mistakes  in 
contracts";  (6  L.  R.  A.  835)  on  remedies  in  case  of  mistake  in  written  instrument; 
(17  L.  R.  A.  273)  on  parol  evidence  to  vary  written  contract  in  case  of  fraud, 
surprise,  or  mistake;  (11  L.  R.  A.  857)  on  mistake  in  written  contract;  relief 
from;  (5  L.R.A.  712)  on  reformation  of  insurance  policy;  (28  L.R.A. (N.S.)  844, 
845,  849,  897)  on  relief  from  mistake  of  law  as  to  effect  of  instrument;  (55  Am. 
St.  Rep.  515)  on  ignorance  of  one's  rights  as  a  ground  of  relief;  (117  Am.  St. 
Rep.  231,  242)  on  mistakes  for  which  written  instruments  may  be  canceled  or 
corrected  in  equity. 
Reformation  of  deeds. 

Cited  in  Loud  v.  Barnes,  154  Mass.  345,  28  N.  E.  271,  holding  deed  cannot  be 
reformed  unless  mistake  common  to  all  parties;  Richardson  v.  Adams,  171  Mass. 
449,  50  N.  E.  941,  holding  proof  of  mistake  must  be  clear,  full  and  decisive; 
Robinson  v.  Braiden,  44  W.  Va.  192,  28  S.  E.  798,  holding  misdescription  in  deed, 
working  no  injury,  not  ground  for  reformation. 

Cited  in  footnotes  to  Atherton  v.  Roche,  55  L.  R.  A.  591,  which  denies  powei 
to  reform  deed  to  daughter  and  husband  and  "their"  heirs,  so  as  to  include  all 
heirs  of  her  body;  Davis  v.  Ely,  5  L.  R.  A.  810,  which  holds  admissible  parol 
evidence  that  part  of  land  to  be  conveyed  was  fraudulently  omitted;  Decker  v. 
Schulze,  27  L.  R.  A.  335,  which  holds  mere  breach  of  covenant  as  to  title  not 
ground  for  rescinding  executed  sale  of  land. 

Cited  in  note  (65  Am.  St.  Rep.  490)  on  reformation  of  contracts. 

5  L.  R.  A.  161,  COMMERCIAL  U.  TELEG.  CO.  v.  NEW  ENGLAND  TELEPH. 

&  TELEG.  CO.  61  Vt.  241,  15  Am.  St.  Rep.  893,  17  Atl.   1071. 
Equality   in    public    UN-.-;    compnlNory    service. 

Cited  in  Haugen  v.  Albina  Light  &  Water  Co.  21  Or.  423,  14  L.  R.  A.  428,  28 
Pac.  244,  holding  corporation  organized  to  supply  city  and  inhabitants  with 
water  must  furnish  to  all  applicants,  although  no  stipulation  thereto  in  fran- 
chise; Inter-Ocean  Pub.  Co.  v.  Associated  .Press,  184  111.  452,  48  L.  R.  A.  574, 
75  Am.  St.  Rep,  184,  56  N.  E.  822,  holding  press  association's  by-law  against 
members'  furnishing  news  to,  or  receiving  news  from,  any  person  or  corporation 
declared  antagonistic,  void;  Delaware  &  A.  Teleg.  &  Teleph.  Co.  v.  Delaware,  30 
W.  N.  C.  371,  holding  telegraph  and  telephone  companies  subject  to  the  rules 
governing  common  carriers;  Godwin  v.  Carolina  Teleph.  &  Teleg.  Co.  136  N.  C. 
259,  67  L.R.A.  252,  103  Am.  St.  Rep.  941,  48  S.  E.  636,  1  A.  &  E.  Ann.  Cas.  203; 
State  ex  rel.  Goodwine  v.  Cadwallader,  172  Ind.  635,  87  N.  E.  644, — holding  a 


811  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  166 

telephone  a  public  carrier  of  news  which  must  furnish  impartial  service  to  all  the 
public  alike;  Home  Teleph.  Co.  v.  Granby  &  X.  Teleph.  Co.  147  Mo.  App.  228,  126 
S.  W.  773,  holding  that  telephone  companies  are  under  obligation  to  furnish  im- 
partial service. 

Cited  in  notes  (31  L.  R.  A.  804)  on  police  regulation  of  electric  companies; 
(15  L.  R.  A.  321)  as  to  compulsory  service  by  party  whose  business  it  is  to  serve 
the  public;  (6  Eng.  Rul.  Cas.  452)  on  invalidity  of  contracts  in  restraint  of  trade; 
(7  Eng.  Rul.  Cas.  463)  on  right  to  compel  public  service  corporation  to  perform 
its  obligations  and  to  refrain  from  exceeding  its  powers. 

Distinguished  in  Kates  v.  Atlanta  Baggage  &  Cab  Co.  107  Ga    649,  46  L.  R.  A. 
437,   34   S.   E.   372,   holding  railway  company  may  grant  exclusive  privilege  of 
entering  trains  to  solicit  transportation  of  passengers  and  baggage,  and  rent  to 
such  licensee  portion  of  depot. 
Public   use   of   patent. 

Cited  in  Delaware  &  A.  Teleg.  &  Teleph.  Co.  v.  Delaware,  2  C.  C.  A.  45,  3  U.  S. 
App.  30,  50  Fed.  681,  30  W.  N.  C.  371,  holding  patent  applied  to  public  use 
becomes  subject  to  legal  regulation  in  such  use;  Delaware  ex  rel.  Postal  Teleg. 
&  Cable  Co.  v.  Delaware  &  A.  Teleg.  &  Teleph.  Co.  47  Fed.  638,  holding  that 
upon  offering  patent  to  public  use,  patentee  cannot  contract  to  restrict  use  for 
particular  purpose  to  licensee. 

Cited  in  note   (29  L.  R.  A.  792)   on  power  of  state  to  restrict  and  regulate  the 
sale  or  enjoyment  of  patent  rights. 
When    ma  n  <ly  m  ii-   will   issue. 

Cited  in  footnotes  to  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188, 
which  denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum; 
Hangen  v.  Albina  Light  &  Water  Co.  14  L.  R.  A.  424,  which  holds  mandamus 
appropriate  remedy  to  compel  supply  of  water. 

Cited  in  notes  (7  L.  R.  A.  105)  on  mandamus  to  enforce  public  duty;  (11  L. 
R.  A.  763)  as  to  issuance  of  mandamus  to  control  executive  discretion. 

5  L.  R.  A.  166,  ANDERSON  v.  BUTLER,  31  S.  C.  183,  9  S.  E.  797. 
Purchase,  etc.,  by  trustee,  etc.,  at  own  sale. 

Cited  in  Fishburne  v.  Smith,  34  S.  C.  333,  13  S.  E.  525,  holding  sale  invalid 
where  representative  of  mortgagee  withdrew  bid  at  suggestion  of  trustee,  and 
thereafter  property  was  sold  to  same  bidder  for  less  sum;  Scottish-American 
Mortg.  Co.  v.  Clowney,  70  S.  C.  240,  49  S.  E.  569,  3  A.  &  E.  Ann.  Cas.  437,  holding 
where  a  trustee  having  power  of  sale  for  reinvestment  executes  a  deed  to  his 
wife,  the  deed  is  voidable  at  the  option  of  the  beneficiaries;  Marquam  v.  Ross, 
47  Or.  405,  83  Pac.  852,  holding  a  trust  company  with  a  lien  upon  the  mortgaged 
premises,  may  purchase  at  the  foreclosure  sale  under  the  trust  deed,  to  protect 
its  lien. 

Cited  in  footnotes  to  Frazier  v.  Jeakins.  57  L.  R.  A.  575,  which  holds  guardian's 
sale  to  her  husband,  void;  Harrison  v.  Mulvane,  54  L.  R.  A.  405,  which  holds 
one  charged  with  selling  corporate  stock  to  pay  encumbrances,  one  of  which  he 
owns,  not  forbidden,  as  trustee,  to  buy  prior  liens  to  protect  own  interests. 

Cited  in  notes    (9  L.  R.   A.   792)    on   purchase  of  trust  property  by  trustee; 
(13  L.R.A.  492)  on  effect  of  purchase  by  trustee;   (136  Am.  St.  Rep.  808)  on  who 
may  not  purchase  at  judicial,  execution,  or  other  compulsory  sales  because  so 
doing  may  conflict  with  their  duties. 
Execution   of   power   under   will. 

Cited  in  Ashley  v.  Holman,  55  S.  C.  131,  32  S.  E.  992,  holding  that  courts  may 
control  execution  of  limited  power  by  declaring  execution  contrary  to  limitations 


5  L.R.A.  166]  L.  R.  A.  CASES  AS  AUTHORITIES.  812 

imposed  invalid;  Rose  v.  Thornley.  33  S.  C.  323.  12  S.  E.  11,  holding  that  under 
will  directing  sale  in  discretion  of  executor  courts  cannot,  at  instance  of  dis- 
tributees, require  sale  to  be  made  by  master;  Rice  v.  Coleman.  87  S.  C.  340,  69 
S.  E.  516,  Ann.  Cas.  1912  B,  1016,  holding  that  legatees  and  devisees  cannot 
enjoin  sale  of  realty  by  executors  having  unlimited  powers,  though  court  might 
differ  as  to  wisdom  of  sale. 

5  L.  R.  A.   172,  YVIXXT  v.   INTERNATIONAL  &  G.  N.  R.  CO.   74  Tex.  32,  11 

S.  W.  907. 
Exemplary  damagres  in  cases  of  negligence. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Compton,  75  Tex.  674,  13  S.  W.  667,  holding 
running  of  water  train  without  conductor  not  such  wilful  neglect  of  duty  as  to 
warrant  recovery,  when  trains  so  run  for  year  without  accident. 

Distinguished  in  Sternenberg  v.  Mailhos,  39  C.  C.  A.  413,  99  Fed.  48,  holding 
absence  of  ground  for  exemplary  damages  not  ground  for  peremptory  instruction 
for  defendant,  when  evidence  supports  claim  for  actual  damages. 
Damages  for  negligent  act  cansing  death. 

Cited  in  Houston  City  Street  R.  Co.  v.  Sciacca,  80  Tex.  355,  16  S.  W.  31,  holding 
recovery  for  death  of  minor  child  not  limited  to  services  during  minority,  but 
may  extend  to  benefits  after  majority:  Galveston,  H.  &  S.  A.  R.  Co.  v.  Hughes, 
22  Tex.  Civ.  App.  139,  54  S.  W.  264,  holding  that  measure  of  damages  for 
killing  son  is  sum  equal  to  pecuniary  benefit  plaintiffs  had  reasonable  expectation 
of  receiving;  International  &  G.  N.  R.  Co.  v.  Kuehn,  2  Tex.  Civ.  App.  217,  21 
S.  W.  58,  holding  that  measure  of  damages  for  causing  death  of  father  is  what 
child  can  reasonably  expect  to  receive  during  probable  duration  of  life,  and  not 
cost  of  raising  child. 

Cited  in  footnote  to  Brink  v.  Wabash  R.  Co.  53  L.  R.  A.  811,  which  denies 
right  to  recover  for  nonperformance  of  contract  to  support  parent  through  negli- 
gent killing  of  son. 

Cited  in  notes    (7  L.  R.  A.   154)    on  action  for  damages  for  death  caused  by 
negligence;    (17  L.  R.  A.  77)   on  measure  of  recovery  for  death  caused  by  negli- 
gence;  (16  Am.  St.  Rep.  248)  on  measure  of  damages  for  death  of  child:   (70  Am. 
St.  Rep.  679)   on  actions  for  death  of  human  being. 
When    damage    presumed. 

Cited  in  Haug  v.  Great  Northern  R.  Co.  8  N.  D.  35,  42  L.  R.  A.  673,  73  Am. 
St.  Rep.  727,  77  N.  W.  97,  holding  pecuniary  damage  presumed  to  widow  and 
minor  children  from  death  of  husband  and  father;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Hall. 
34  Tex.  Civ.  App.  542,  80  S.  W.  133,  on  proof  of  relationship  between  parties  as 
implying  that  parent  will  receive  support  from  the  child. 
Pleading'  in  actions  of  negligence. 

Cited  in  notes  (59  L.R.A.  227)  on  sufficiency  of  general  allegations  of  negli- 
gence; (16  Am.  St.  Rep.  313)  on  pleading  negligence. 

V 

5  L.  R.  A.  176,  ASKEY  v.  WILLIAMS,  74  Tex.  294,  11  S.  W.  1101. 
Infant's    deed;    action    to    disaffirm. 

Cited  in  Simkin*  v.  Searcy,  10  Tex.  Civ.  App.  413,  32  S.  W.  849,  holding  action 
by  minor's  heirs  to  disaffirm  deed  five  years  after  majority,  too  late;  Peck  v. 
Cain,  27  Tex.  Civ.  App.  40,  63  S.  \V.  177,  denying  infant's  liability  for  abandon-' 
merit  of  lease;  Hatton  v.  Bodan  Lumber  Co.  57  Tex.  Civ.  App.  487,  123  S.  W. 
163,  holding  minor's  deed  voidable  only,  subject  to  repudiation  within  reasonable 
time  after  his  majority. 


813  L.  R.  A.  CASES  AS  Al/fHORITIES.  [5  L.B.A.  179 

Validity  of  act*  of  persons  under   diMabillty. 

Cited  in  Brown  v.  Farmers  &  M.  Nat.  Bank,  88  Tex.  274,  33  L.  R.  A.  363,  31 
S.  \V.  285,  holding  infant's  contract  to  repay  borrowed  money  not  void,  making 
undertaking  to  answer  for  his  default  collateral;  Williams  v.  Sapieha,  94  Tex. 
433,  61  S.  W.  115,  holding  power  of  attorney  to  convey  by  insane  person  voidable, 
not  void;  First  Nat.  Bank  v.  McGinty,  29  Tex.  Civ.  App.  541,  69  S.  W.  495, 
holding  owner  of  note  executed  by  lunatic  entitled  to  recover  portion  spent  for 
necessaries. 

Cited  in  notes  (18  Am.  St.  Rep.  584,  588,  589,  607,  633,  645,  646,  655,  675;  6 
Eng.  Rul.  Cas.  54)  on  validity  of  contract  by  infant. 
Infant's   liability   for   necessaries. 

Cited  in  footnotes  to  Goodman  v.  Alexander.  55  L.  R.  A.  781,  which  authorizes 
recovery  against  infant  for  food  and  lodging,  without  alleging  that  defendant  an 
orphan;  Gregory  v.  Lee,  25  L.  R.  A.  618,  which  holds  minor  leasing  rooms  while 
attending  college  bound  to  pay  for  same  as  necessary,  only  while  occupying  them. 

Cited  in  notes  (15  L.  R.  A.  211)  on  contract  by  infant  to  work  for  necessaries; 
(12  L.  R.  A.  859)  on  implied  promise  to  pay  for  necessaries  purchased  by  infant. 
"What  are  necessaries. 

Cited  in  Crafts  v.  Carr,  24  R.  I.  406,  60  L.  R.  A.  132,  footnote  p.  128,  96  Am. 
St.  Rep.  721,  53  Atl.  275,  which  holds  services  of  attorney  in  prosecuting  for 
infant  action  for  damages  for  indecent  assault  on  her,  necessaries;  Fisher  v.  Shea, 
97  Me.  375,  61  L.  R.  A.  568,  footnote  p.  567,  54  Atl.  846,  which  holds  defense  of 
suit  against  policeman  for  assault  while  acting  in  line  of  duty,  within  exception 
of  claims  for  necessaries  in  statute  prohibiting  garnishment  of  wages;  Mclsaac 
v.  Adams,  190  Mass.  119,  112  Am.  St.  Rep.  321,  76  N.  E.  654,  5  A.  &  E.  Ann.  Cas. 
729,  holding  attorney's  fees  for  services  in  settling  an  estate  of  a  deceased  person, 
in  which  the  minor  was  interested,  are  not  necessaries. 

Cited  in  note  (96  Am.  St.  Rep.  735)  on  infant's  liability  for  attorney's  fees. 
Costs  in   partition   snit. 

Cited  in  Powell  v.  Naylor,  32  Tex.  Civ.  App.  343,  74  S.  W.  338,  holding  that 
in  partition  suits,  the  defendants  are  liable  for  costs  incurred  by  them  in  con- 
testing rights  of  the  successful  plaintiffs. 

5  L.  R.  A.  179,  HENRY  v.  NEWBURYPORT,  149  Mass.  582,  22  N.  E.  75. 
KiKlits   of   riparian   owner   in  ebb   and   flow  of   tide. 

Cited  in  -Mills  v.  United  States,  12  L.  R.  A.  680,  46  Fed.  745,  holding  diversion 
of  waters  of  river  from  rice  canals  and  ditches  of  riparian  proprietor  to  effect 
improvement  of  stream  for  navigation,  damnum  absque  injuria. 

Cited  in  notes   (12  L.  R.  A.  636,  639)   on  ownership  of  tide  lands. 
Ordinance   of   1647. 

Cited  in  Concord  Mfg.  Co.  v.  Robertson,  66  N.  H.  26,  18  L.  R.  A.  693,  25  Atl. 
718,  holding  object  of  ordinance  was  to  induce  erection  of  wharves  for  benefit  of 
commerce;  Com.  v.  Boston  Terminal  Co.  185  Mass.  283.  70  N.  E.  12.").  holding 
that  under  the  ordinance  of  1647  the  proprietor  of  the  upland  took  a  fee  in  the 
lands  between  high  and  low  water  marks;  Old  Colony  Street  R.  Co.  v.  Phillips, 
207  Mass.  179.  93  X.  K.  792.  to  the  point  that  under  ordinance  of  1647  proprietor 
of  upland  on  shore  between  high  and  low  water  mark  had  rigM  to  build  wharves, 
but  not  so  as  to  impede  navigation  or  cut  off  other  owners. 

Cited  in  footnotes  to  Watuppa  Reservoir  Co.  v.  Fall  River,  13  L.  R.  A.  255, 
which  holds  right  of  private  persons  in  great  pond  not  affected  by  ordinance  of 
1647;  Atty.  Gen.  ex  rcl.  Mann.  v.  Revere  Copper  Co.  9  L.  R.  A.  510,  which  holds 
town  could  not  transfer  title  to  great  pond,  granted  to  it  before  ordinance  of  1647- 


5  L.R.A.  179]  L.  R.  A.  CASES  AS  AUTHORITIES.  814 

Riparian    rights    as    affected    by    erection    of    wharves. 

Cited  in  notes   (12  L.  R.  A.  617)   on  right  of  riparian  owners  to  dock  to  low- 
water  mark;    (12  L.  R.  A.  635)   on  establishment  of  dock  and  harbor  lines;    (14 
L.  R.  A.  499)  on  establishment  of  dock  lines;   (40  L.  R.  A.  639)  on  right  to  erect 
wharves. 
Right   to  land  under   water. 

Cited  in  Butler  v.  Atty.  Gen.  195  Mass.  83,  8  L.R.A.(N.S.)  1048,  80  N.  E.  688, 
holding  that  the  littoral  owners  take  the  fee  to  their  portion  of  the  land  between 
high  and  low  water  mark,  subject  to  the  rights  of  the  public  for  navigation  and 
free  fowling. 

Cited  in  footnotes  to  Concord  Mfg.  Co.  v.  Robertson,   18  L.  R.  A.  679,  as  to 
abutter's  rights  in  public  water  and  land  under  same;  Gilbert  v.  Eldridge,  13  L. 
R.  A.  411,  which  authorizes  the  dissociation  from  upland  of  riparian  right  to 
reclaim  land  under  shallow  water. 
Nuisance;  right  of  private  action. 

Cited  in  footnote  to  State  v.  Stark,  54  L.  R.  A.  910,  which  denies  right  of  pri- 
vate person  to  abate  liquor  nuisance  without  process  of  law. 

Cited  in  note   (6  L.  R.  A.  280)   on  action  for  damages  from  nuisance. 

5  L.  R.  A.  183,  REICHERT  v.  ST.  LOUIS  &  S.  F.  R.  CO.  51  Ark.  491,  11  S.  W. 

696. 
Right  of  owner  of  fee  in  highway   to  compensation   for  nse  by  railway. 

Cited  in  Canastota  Knife  Co.  v.  Newington  Tramway  Co.  69  Conn.  185,  36  Atl. 
1107  (dissenting  opinion),  majority  holding  electric  railway  in  public  highway 
not  additional  servitude  for  which  owner  of  fee  entitled  to  compensation;  De 
Lucca  v.  North  Little  Rock,  142  Fed.  600,  holding  that  the  building  of  a  viaduct 
over  railroad  to  avoid  grade  crossing  is  not  an  additional  servitude  which  gives 
adjoining  owner  right  to  compensation. 

Cited  in  note   (36  L.R.A.(N.S.)  700,  702,  832)   on  abutter's  right  to  compensa- 
tion for  railroads  in  streets. 
Estopped  by  acquiescence. 

Cited  in  Ferguson  v.  Covington  &  C.  Electric  R.  &  Transfer  &  Bridge  Co.  108 
Ky.  672,  57  S.  W.  460,  holding  that  owner's  acquiescence  for  number  of  years  in 
railroad's  occupation  of  street  bars  right  to  injunction;  Little  Rock  R.  &  Electric 
Co.  v.  North  Little  Rock,  76  Ark.  64,  88  S.  W.  826  (dissenting  opinion),  on  the 
estoppel  by  silence  to  eject  railroad  from  land;  Union  Sawmill  Co.  v.  Fekenthal 
Land  &  Townsite  Co.  87  Ark.  121,  128  Am.  St.  Rep.  25,  112  S.  W.  205,  holding 
that  a  landowner  who  stands  by  and  watches  a  railroad  being  built  over  his  land 
•without  acting  cannot  afterward  enjoin  same  or  have  it  removed;  St.  Louis,  I. 
M.  &  S.  R.  Co.  v.  Batesville  &  W.  Teleph.  Co.  80  Ark.  503,  97  S.  W.  660,  on  the 
right  of  a  railroad  company  to  remove  poles  of  a  telephone  company  in  place  when 
railroad  was  built;  Gurnsey  v.  Northern  California  Power  Co.  160  Cal.  710,  36 
L.R.A.(N.S.)  192,  117  Pac.  906,  holding  that  owner  of  land  estopped  from  main- 
taining ejectment  against  public  service  corporation  which  he  permitted  to  occu- 
py land  without  compensation. 

Cited  in  footnote  to  Old  Times  Distillery  Co.  v.  Casey,  42  L.  R.  A.  466,  which 
holds  right  to  enjoin  use  of  trade-mark  lost  by  ten  years'  delay. 

Cited  in  notes  17  Am.  St.  Rep.  24,  on  estoppel  in  pais;  (7  L.R.A.(N.S.)  996) 
on  remedy  of  abutting  owner  as  affected  by  consent  to  construction  of  track 
in  street  or  highway. 

5  L.  R.  A.  189,  CURDY  v.  BERTON,  79  Cal.  420,  12  Am.  St.  Rep.  157,  21  Pac.  858. 
Constructive    trusts    arising    from    fraud    of    party    in    fiduciary    relation. 

Cited  in  Ransdel  v.  Moore.  153  Ind.  419,  53  L.  R.  A.  762,  53  N.  E.  767,  holding 


815  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  193 

husband  promising  wife  on  death-bed  to  convey  certain  property  to  her  brothers 
deemed  trustee  as  to  property  designated;  Ludington  v.  Patton,  111  Wis.  257, 
86  N.  \V.  571,  holding  executors  fraudulently  preventing  widow  from  electing  to 
take  distributive  share  in  husband's  estate  may  be  required  to  account  for  such 
share  by  heirs  of  widow  the  same  as  though  election  had  been  made;  Gemmel  v. 
Fletcher,  76  Kan.  592,  92  Pac.  713,  holding  where  husband  holds  property  of  wife, 
and  to  prevent  her  disposing  of  it  by  will  during  her  last  sickness,  promised  to 
convey  the  real  estate  to  another  and  the  wife  afterward  died  relying  upon  that 
promise,  and  the  husband  refuses  to  convey,  equity  will  impose  a  constructive 
trust  on  the  realty. 

Cited  in  footnotes  to  Anglo-American  Sav.  &  L.  Asso.  v.  Campbell,  43  L.R.A. 
622,  which  sustains  constructive  trust  in  favor  of  persons  contributing  labor  or 
materials  for  building,  in  full  amount  agreed  to  be  advanced  by  third  person; 
Stahl  v.  Stahl,  68  L.R.A.  617,  which  holds  constructive  trust  created  where 
mother  ill  in  bed  at  solicitation  of  children  conveys  property  to  one  of  them  on 
his  agreeing  to  hold  it  for  benefit  of  all  to  avoid  expense  and  his  conveyance 
thereof  to  another  child  with  notice. 

Cited  in  notes  (106  Am.  St.  Rep.  97)  on  heir,  devisee  or  legatee  as  trustee  ex 
maleficio;  (58  L.R.A.  115)  on  trust  implied  to  effectuate  purpose  when  terms  of 
contract  cannot  be  given  effect;  (8  L.R.A.(X.S.)  699,  703)  on  constructive  trust 
from  fraud  in  frustrating  decedent's  intention  to  give  property  to  third  person; 
(33  L.R.A.  (X.S.)  997)  as  to  whether  constructive  trust  may  be  based  upon  under- 
taking to  hold  for  another's  benefit  property  received  through  devise  or  inherit- 
ance, where  no  actual  testamentary  intention  frustrated. 

5  L.  R.  A.  193,  CARLETON  v.  RUGG,  149  Mass.  550,  14  Am.  St.  Rep.  446,  22  N. 

E.  55. 
Injunction,   when   proper. 

Cited  in  Buel  v.  Baltimore  &  O.  S.  W.  R.  Co.  24  Misc.  667,  53  N.  Y.  Supp.  749, 
holding  bondholder  entitled  to  preliminary  injunction  against  paying  out  funds 
of  consolidated  railroad  in  which  earnings  of  constftuents  are  mingled;  Evans 
v.  Reading  Chemical  Fertilizing  Co.  160  Pa.  215,  28  Atl.  702.  holding  operation 
of  fertilizer  factory,  constituting  nuisance,  enjoinable;  Worthington  v.  Waring, 
157  Mass.  423,  20  L.  R.  A.  344,  34  Am.  St.  Rep.  294,  32  N.  E.  744,  holding  equity 
will  not  enjoin  blacklisting,  or  compel  reinstatement  of  striking  employees; 
Re  Arkansas  R.  Rates,  168  Fed.  723,  holding  that  in  issuing  a  preliminary  in- 
junction, the  comparative  injury  in  granting  and  refusing  it  must  be  considered; 
State  ex  rel.  Lyon  v.  Columbia  Water  Power  Co.  82  S.  C.  191,  22  L.R.A.(N.S.) 
440,  129  Am.  St.  Rep.  876,  63  S.  E.  884,  17  A.  &  E.  Ann.  Cas.  343,  holding  public 
nuisance  may  be  enjoined,  where  it  consists  of  obstruction  of  public  highway. 

Cited  in  notes  (9  L.  R.  A.  716;  12  L.  R.  A.  754)  on  remedy  by  injunction 
against  nuisances;  (6  L.  R.  A.  763)  on  abatement  of  public  nuisance;  (20  L.  R. 
A.  165)  on  power  of  equity  to  grant  mandatory  injunctions  against  nuisances; 
(41  L.  R.  A.  321)  on  injunctions  by  municipal  corporations  against  nuisances 
affecting  public  morals,  good  order,  health,  and  safety;  (19^Eng.  Rul.  Cas.  305) 
as  to  when  injunction  against  nuisance  will  be  granted. 
Agralnst  using;  premises  for  sale  of  liqnor. 

Followed  without  special  discussion  in  State  v.  Massey,  72  Vt.  221,  47  Atl.  834. 

Cited  in  State  ex  rel.  Rhodes  v.  Saunders,  66  N.  H.  84,  18  L.  R.  A.  654,  25 
Atl.  588,  holding  use  oi  buildings  for  sale  of  liquor,  though  criminal  offense,  en- 
joinable by  equity;  White  v.  Creamer,  175  Mass.  570,  56  N.  E.  832,  as  to  whether 
petition  to  abate  liquor  nuisance  is  maintainable;  Hartley  v.  Henretta,  35  Y\ . 
Va.  237,  13  S.  E.  375  (dissenting  opinion),  majority  holding  equity  cannot  en- 


5  L.R.A.  193]  L.  R.  A.  CASES  AS  AUTHORITIES.  816 

join,  or  abate  place  of,  illegal  sale  of  liquor  until  owner's  conviction;  Devanney 
v.  Hanson,  60  W.  Va.  8,  53  S.  E.  60.'),  holding  that  equity  has  jurisdiction  to  en- 
join the  sale  of  intoxicating  drinks  at  a  building  contrary  to  law. 

Cited  in  note   (7   L.  R.  A.  300)    on  disobedience  of  injunction  against  sale  -A 
liquor,  as  contempt  of  court. 
—  Ag'ainst  crimes. 

Cited  in  Weakley  v.  Page,  102  Tenn.  202,  46  L.  R.  A.  558,  53  S.  W.  551,  holding 
bawdy  house,  though  subject  of  criminal  prosecution,  enjoinable;  Columbian 
Athletic  Club  v.  State,  143  Ind.  109,  28  L.  R.  A.  731,  52  Am.  St.  Rep.  407,  40  N. 
E.  914,  holding  criminality  of  prize  fighting  no  ground  for  denying  injunction ; 
State  ex  rel.  Crow  v.  Canty,  207  Mo.  459,  15  L.R.A.(N.S.)  755,  123  Am.  St.  Rep. 
393,  105  S.  W.  1078,  13  A.  &  E.  Ann.  Caa.  787,  holding  a  public  nuisance  may  be 
abated,  although  the  offenders  are  amenable  to  criminal  law;  Ex  parte  Allison, 
48  Tex.  Crim.  Rep.  638,  3  L.R.A.(X.S-)  626,  90  S.  W.  492,  13  A.  &  E.  Ann.  Cas. 
684,  holding  that  where  property  rights  are  involved  the  courts  will  issue  in- 
junction, although  it  may  be  to  restrain  crime. 

Cited  in  note   (23  L.R.A. (N.S.)  691)  on  state's  right  to  enjoin  public  nuisance 
which  is  also  a  crime. 
Constitutionality   of    statute   grtvlng    power   to    enjoin. 

Cited  in  Ex  parte  Allison,  99  Tex.  463,  2  L.R.A.(N.S.)  1114,  122  Am.  St.  Rep. 
653,  90  S.  W.  870,  holding  statute  authorizing  any  citizen  to  sue  to  enjoin  main- 
tenance of  games  prohibited  by  the  statutes  was  constitutional ;  Burckell  v.  State, 
47  Tex.  Civ.  App.  395,  106  S.  W.  190,  holding  statute  giving  power  to  enjoin  the 
public  sale  of  intoxicating  liquors  without  a  license,  is  constitutional. 
Right  to  jury  trial. 

Cited  in  Shapira  v.  D'Arcy,  180  Mass.  378,  62  N.  E.  412,  holding  constitutional 
right  of  jury  trial  does  not  extend  to  suit  in  equity;  United  States  v.  Debs,  5 
Inters.  Com.  Rep.  209,  64  Fed.  753,  holding  statutory  power  to  enjoin  combina- 
tions in  restraint  of  interstate  commerce  not  invasion  of  right  to  jury  trial ; 
State  v.  Murphy,  71  Vt.  137,  41  Atl.  1037,  holding  proceeding  for  violating  in- 
junction against  maintaining  place  for  illegal  sale  of  liquor  not  invasion  of  con- 
stitutional right  of  jury  trial;  Davis  v.  Auld,  96  Me.  568,  53  Atl.  118,  raising, 
without  deciding,  question  whether  statute  giving  equity  power  to  enjoin  liquor 
nuisance  invades  right  to  jury  trial;  People  ex  rel.  Atty.  Gen.  v.  Tool,  35  Colo. 
239,  6  L.R.A.(N.S.)  827,  117  Am.  St.  Rep.  198,  86  Pac.  224,  holding  that  a  right 
to  trial  by  jury  does  not  extend  to  charges  for  contempt  for  violation  of  injunc- 
tion. 

Cited  in  footnotes  to  State  ex  rel.  Rhodes  v.  Saunders,  18  L.R.A.  646,  which 
denies  right  to  jury  trial  in  equity  case;  Chessman  v.  Hale,  G8  L.R.A.  410,  which 
sustains  plaintiff's  right  to  have  questions  as  to  existence  of  nuisance  and  amount 
of  damages  tried  by  jury  in  suit  to  enjoin  the  nuisance  and  for  damages. 
Police  power. 

Cited  in  Com.  v.  Huntley,  156  Mass.  240,  15  L.  R.  A.  842,  30  N.  E.  1127,  hold- 
ing statute  prohibiting  sale  of  oleomargarine,  imitating  butter,  constitutional, 
even  when  applied  to  original  packages  brought  from  another  state. 

Cited  in  footnotes  to  Laugel  v.  Bushnell,  58  L.  R.  A.  266,  which  sustains 
ordinance  declaring  places  where  hop  ale,  hop  and  malt  meal,  and  cider  sold, 
nuisances;  Landry  v.  New  Iberia,  58  L.  R.  A.  285,  which  denies  city's  power  to 
arbitrarily  declare  particular  licensed  saloon  a  nuisance. 

Cited  in  note  (20  Am.  St.  Rep.  556)  on  due  process  of  law. 
Parol  evidence  to  identify  person  and  property. 

Cited  in  note  (6  L.  R.  A.  43)  on  parol  evidence  to  identify  person  and  prop- 
erty. 


8J7  L.  K.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  200 

Power  of  legislature  to  extend  equity  jurisdiction. 

Cited  in  American  Exp.  Co.  v.  Southern  Indiana  Exp.  Co.  167  Ind.  310,  78  X 
E.  1021,  holding  that  the  legislature  has  the  power  to  increase  the  powers  of  the 
courts  of  equity. 

5  L.  R.  A.  200,  HARVEY  v.  MERRILL,  150  Mass.  1,  15  Am.  St.  Rep.  159,  22  X. 

E.  49. 
What  are  vragperingr  and  ultra  vires  contracts. 

Cited  in  Goodwin  v.  Massachusetts  Loan  &  T.  Co.  152  Mass.  195,  25  X.  E. 
100,  holding  purchases  of  cotton  futures  legal  under  the  circumstances;  Xorthrup 
v.  Buffington,  171  Mass.  471,  51  N.  E.  7,  holding  delivery  was  not  intended,  but 
margins  were  paid  as  protection  in  transactions  between  parties ;  Chase  v. 
Boston,  180  Mass.  460,  62  N.  E.  1059,  holding  brokers  properly  taxed  for  stocks 
in  their  possession;  Farnum  v.  Whitman,  187  Mass.  383,  73  N.  E.  473,  holding 
that  to  render  a  contract  for  the  sale  of  wheat  void  as  a  wagering  contract  both 
the  parties  must  intend  not  to  deliver  or  accept,  but  it  is  not  enough  that  one 
does  so ;  Fiske  v.  Doucette,  206  Mass.  284,  92  X.  E.  455,  to  the  point  that  fictitious 
sales  of  stock  though  in  compliance  with  rules  of  stock  exchange  may  be  wager- 
ing contract;  Carson  v.  Milwaukee  Produce  Co.  133  Wis.  92,  113  X*.  W.  393, 
holding  contracts  in  the  form  of  sales  of  personal  property  where  neither  party 
intends  to  deliver  or  accept  the  property  nominally  sold  are  gambling  contracts, 
where  they  intend  to  settle  the  differences  in  prices  in  cash. 

Cited  in  footnotes  to  First  Xat.  Bank  v.  Carroll,  8  L.  R.  A.  275,  which  holds 
guaranty  that  cattle  will  sell  at  specified  price,  in  consideration  of  receiving  all 
above  such  price,  gambling  contract;  Cashman  v.  Root,  12  L.  R.  A.  511,  which 
holds  purchase  of  stock  on  margin  by  broker  for  customer  void;  Booth  v.  People, 
50  L.  R.  A.  762,  which  sustains  statute  making  unlawful,  options  for  sale  of  com- 
modities which  have  been  subject  of  gambling  operations;  Olson  v.  Sawyer  Good- 
man Co.  53  L.  R.  A.  648,  which  holds  void  an  agreement  to  debit  and  credit  on 
accounts  due  employees,  their  winnings  at  card  games  with  each  other;  Drinkall 
v.  Movious  Suite  Bank,  57  L.  R.  A.  341,  which  holds  title  to  cashier's  check, 
acquired  by  payee's  indorsement  to  gambler  in  payment  for  chips  to  be  used  in 
gambling,  defective;  Jemison  v.  Citizens'  Sav.  Bank,  9  L.  R.  A.  708,  which  holds 
speculative  dealing  in  cotton  futures  by  savings  bank,  ultra  vires;  Scales  v. 
State,  66  L.R.A.  730,  which  holds  wagering  contract  in  futures  not  shown  by  fact 
that  purchaser  intended  to  sell  his  contract  before  time  for  performance  arrived 
uiilo*  noncontemplation  of  actual  performance  of  obligation  by  other  party  is 
also  shown. 

Cited  in  notes   (12  L.  R.  A.  121)   on  contracts  not  binding  on  makers;    (7  L. 
R.  A.  705)  as  to  when  promissory  note  is  invalid;   (6  L.  R.  A.  588)  on  contracts 
wholly  void,  being  void  as  to  everybody. 
Effect   of   immoral    use   on    risrht   to   relief. 

Cited  in  Fuller  v.  Berger.  65  L.R.A.  381,  enjoining  infringement  of  patent  on 
bogus-coin  detector,  though  devoted  wholly  to  immoral  use;  Gibney  v.  Olivette, 
196  Mass.  295,  82  X.  E.  41,  holding  that  one  who  has  advanced  money  to  be  used  in 
an  illegal  transaction  cannot  recover  the  money  from  the  wrongdoer  he  has  aided. 

Cited  in  footnotes  to  Fuller  v.  Berger.  63  L.R.A.  381,  which  holds  that  equity 
will  not  refuse  relief  against  infringement  of  patent  because  owner  has  devoted 
it  wholly  to  an  immoral  use:  Woodson  v.  Hopkins,  70  L.R.A.  645.  which  holds 
one  conducting  loan  office  and  receiving  rates  of  interest  so  extortionate  a-  to 
shock  moral  sense  and  be  against  public  policy  not  entitled  to  aid  of  equity  to 
compel  agent  to  pay  over  money  received  in  business  or  to  obtain  possession 
of  property  pertaining  to  business. 
L.R.A.  An.  Vol.  I.— 52. 


5  L.R.A.  200]  L.  R.  A.  CASES  AS  AUTHORITIES.  818 

Right  of  recovery  on  watering  contracts. 

Cited  in  Barnes  v.  Smith,  159  Mass.  347,  34  N.  E.  403,  holding  mere  expecta- 
tion that  delivery  of  shares  purchased  would  not  be  called  for  does  not  debar 
broker  from  recovering  his  commission;  Mohr  v.  Miesen,  4"  Minn.  234,  49  X. 
W.  862,  holding  that  broker  who  advances  money  to  enable  his  customer  to  carry 
Avagering  contract  cannot  recover  it;  Davy  v.  Bangs,  174  Mass.  242,  54  X.  E. 
536,  holding  that  one  who  employs  another  to  buy  and  sell  stocks  on  margin  with- 
out intending  delivery  may  recover  payment  made  therefor  under  statute;  Lyons 
•v.  Coe,  177  Mass.  383,  59  N.  E.  59,  holding  employer  of  broker  on  wagering  con- 
tract might  recover  under  statute  amount  paid  by  him;  Nave  v.  Wilson,  12  Ind. 
App.  43,  38  N.  E.  876,  holding  intimate  connection  between  principal  and  agent 
in  promoting  illegal  transactions  in  futures  prevents  operation  of  rule  that  agent 
must  account  to  principal  for  moneys  received  by  him;  Wakefield  v.  Farnum,  170 
Mass.  425,  49  N.  E.  640,  holding  court  not  required  to  find  that  recovery  should 
be  had  on  evidence  of  wagering  contract;  Rice  v.  Winslow,  182  Mass.  275,  65 
N.  E.  366,  holding  that  equity  will  restrain  foreclosure  of  mortgage  and  compel 
surrender  of  note  given  under  wagering  contract;  Wimvard  v.  Lincoln,  23  R.  I. 
493,  64  L.  R.  A.  176,  51  Atl.  106,  holding  transaction  by  which  broker  purchased 
stock  for  customer,  to  be  delivered  on  demand,  valid ;  Garseed  v.  Sternberger, 
135  N.  C.  502,  47  S.  E.  603,  denying  right  to  reimbursement  of  one  purchasing 
cotton  "futures"  for  another  at  loss;  Wheeler  v.  Metropolitan  Stock  Exchange, 
72  N.  H.  318,  56  Atl.  754,  holding  contract  for  purchase  of  stock  without  delivery, 
one  party  to  pay  difference  between  prices,  void;  Beers  v.  Wardwell,  198  Mass. 
240,  84  X.  E.  306,  holding  commissions  for  services  cannot  be  recovered  if  based 
on  a  wagering  contract;  Hallet  v.  Aggergaard,  21  S.  D.  558,  14  L.R.A.(X.S-)  1253, 
114  X.  W.  696,  holding  that  broker's  commissions  in  purchase  of  grain  for  future 
delivery  will  not  be  defeated  unless  neither  party  had  any  intention  of  receiving 
or  delivering  property. 

Cited  in  footnotes  to  Ullman  v.  St.  Louis  Fair  Asso.  56  L.  R.  A.  606,  which 
denies  right  to  abandon  partly  executed,  illegal  bookmaking  contract  for  speci- 
fied period,  and  recover  back  pro  rata  amount  of  money  paid;  Central  Stock  & 
Grain  Exchange  v.  Bendinger,  56  L.  R.  A.  875,  which  holds  broker  liable  to 
refund  to  principal,  money  illegally  taken  from  agent  as  margin  on  gambling 
transaction;  Appleton  v.  Maxwell,  55  L.  R.  A.  93,  which  denies  right  of  action 
for  money  loaned  to  be  used  in  gambling;  Baxter  v.  Deneen,  64  L.R.A.  949,  which 
holds  that  broker  with  whom  margins  have  been  deposited  in  a  stock  gambling 
transaction  will  not  be  enjoined  from  violating  agreement  to  keep  them  on  de- 
posit in  a  specified  bank  until  the  transaction  is  closed. 

Cited  in  note  (11  L.R.A.(X.S.)  575)  on  right  of  broker  to  recover  commissions 
or  advances  in  furthering  wagering  contract. 
Conflict  of  lawn. 

Cited  in  Mittenthal  v.  Mascagni,  183  Mass.  23,  60  L.  R.  A.  814.  97  Am.  St. 
Rep.  404,  66  X.  E.  425,  assuming  law  of  Italy  similar  to  ours  as  to  effect  of  stipu- 
lation in  contract  for  adjustment  of  differences;  Parrot  v.  Mexican  C.  R.  Co.  207 
Mass.  193,  34  L.R.A. (X.S.)  275,  93  X.  E.  590,  to  the  point  common  law  will  be 
presumed  to  be  same  in  different  states  in  absence  of  evidence. 

Cited  in  notes  (64  L.R.A.  169)  on  conflict  of  laws  as  to  gambling  contracts, 
when  public  policy  of  forum  does  not  interfere;  (67  L.R.A.  56,  61)  on  how  case 
determined  when  proper  foreign  law  not  proved;  (113  Am.  St.  Rep.  875)  on  proof 
of  foreign  laws  and  their  effect. 

5  L.  R.  A.  206,  APPLETOX  v.  AMES,  150  Mass.  34,  22  N.  E.  69. 
Right   of   tenant   to   notice   to   qnit. 

Cited  in  Wallace  v.  Ocean  Grove  Camp  Meeting  Asso.  78  C.  C.  A.  406,  148  Fed. 


819  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  209 

673,  holding  that  a  tenant  who  has  repudiated  the  relation  of  landlord  and  tenant 
is  not  entitled  to  notice  to  quit;  Poison  v.  Parsons,  23  Okla.  784,  25  L.R.A. (N.S.) 
108,  104  Pac.  336,  holding  in  an  action  of  forcible  entry  and  detainer,  preliminary 
notice  to  quit  is  waived  where  relation  of  landlord  and  tenant  is  denied  by  the 
defendant;  Benton  v.  Williams,  202  Mass.  192,  88  N.  E.  843,  on  the  rights  of  a 
tenant  at  sufferance. 

Cited  in  notes  (25  L.R.A.(X.S-)  105)  on  denial  of  tenancy  as  waiver  of  notice 
to  quit  or  demand  of  possession;  (15  Eng.  Rul.  Cas.  656)  on  necessity  of  notice 
to  quit  to  tenant  denying  right  of  person  entitled  as  successor  to  landlord. 

Distinguished  in  Lowman  v.  West,  8  Wash.  3GO,  36  Pac.  258,  holding  defendants 
answering  in  action  of  unlawful  detainer  do  not  forfeit  right  to  notice. 
Termination  of  lease  as  forfeiture  of  sub-lease. 

Cited  in  Geer  v.  Boston  Little  Circle  Zinc  Co.  126  Mo.  App.  181,  103  S.  W.  151, 
on  the  forfeiture  of  the  lease  as  a  forfeiture  of  a  sub-lease;  Casassa  v.  Smith, 
206  Mass.  71,  91  N.  E.  891,  holding  that  sublessee  may,  upon  forfeiture  of  lease 
by  lessor  attorn  to  owner,  and  sue  his  lessor  upon  implied  covenant  for  quiet 
enjoyment. 

Cited  in  notes  (117  Am.  St.  Rep.  99;  7  L.R.A.(N.S.)  222)  on  effect  of  surrender 
of  original  lease  on  rights  of  sublessee. 

5  L.  R.  A.  209,  HODGKIXS  v.  FARRINGTON,  150  Mass.  19,  15  Am.  St.  Rep. 

168,  22  N.  E.  73. 
Revocation   of  license   to  use  land   of  another. 

Cited  in  Hathaway  v.  Yakima  Water,  Light  &  P.  Co.  14  Wash.  473,  53  Am. 
St.  Rep.  874,  44  Pac.  896,  holding  license  to  maintain  a  waste  ditch  upon  land 
of  another  revocable  at  will  of  licensor;  Great  Falls  Waterworks  Co.  v.  Great 
Northern  R.  Co.  21  Mont.  501,  54  Pac.  963,  holding  parol  license  to  lay  water 
mains  revocable  at  any  time,  though  mains  laid  at  great  expense,  and  maintained 
for  six  years;  Nowlin  Lumber  Co.  v.  Wilson,  119  Mich.  413,  78  N.  W.  338,  hold- 
ing license  in  writing  to  construct  logging  railway  across  land,  without  compen- 
sation, not  irrevocable  because  of  expenditure  of  money  by  licensee. 

Cited  in  footnote  to  Rodefer  v.  Pittsburg,  0.  V.  &  C.  R.  Co.  70  L.R.A.  844, 
-which  holds  siding  or  switch  constructed  by  railroad  company  to  manufactory  at 
expense  of  and  over  land  of  manufacturer  for  sole  purpose  of  affording  facilities 
for  receiving  and  shipping  freight  and  silent  as  to  period  it  is  to  remain  not  main- 
tainable by  railroad  company  against  manufacturer's  objection. 

Cited  in  notes  ( 10  L.  R.  A.  484 )  on  right  by  prescription  to  use  of  lands  of 
another;  (49  L.  R.  A.  504)  on  revocability  of  license  to  maintain  burden  on  land 
after  expense  incurred;  (31  Am.  St.  Rep.  714)  on  nature  and  revocation  of  parol 
licenses;  (136  Am.  St.  Rep.  684)  on  license  as  personal  revocable  privilege  to  do 
something  on  land  of  another;  (10  Eng.  Rul.  Cas.  93)  on  what  is  necessary  to 
obtain  easement  by  prescription;  (16  Eng.  Rul.  Cas.  80)  on  revocability  of  license. 

Distinguished  in  Watson  v.  Adams,  32  Ind.  App.  283,  69  X.  E.  696,  holding 
that  a  parol  license  to  cut  growing  timber  could  not  be  revoked,  where  same  had 
been  acted  upon  by  the  vendee. 
Conveyance   by   licensor  as   revocation. 

Cited  in  Hicks  Bros.  v.  Swift  Crook  Mill  Co.  133  Ala.  416,  57  L.  R.  A.  721, 
91  Am.  St.  Rep.  38,  31  So.  947,  holding  subsequent  conveyance  of  land  by  licensor 
operates  as  revocation  of  license  to  construct  dam  and  ditch;  Bunke  v.  Xew  York 
Teloph.  Co.  110  App.  Div.  248,  97  X.  Y.  Supp.  6(5,  holding  sale  by  owner  of  prem- 
ises was  revocation  of  license  to  attach  telephone  wires  to  roof;  Re  White  Plains, 
124  App.  Div.  5,  108  X.  Y.  Supp.  o96,  holding  license  to  enter  lands  to  construct 
improvements  for  sewer  system,  was  revoked  ipso  fpcto  by  conveyance. 


5  L.R.A.  209]  L.  R.  A.  CASES  AS  AUTHORITIES.  820 

Removal   of  'property   constructed   under  license. 

Cited  in  Great  Falls  Waterworks  Co.  v.  Great  Northern  R.  Co.  21  Mont.  501, 
54  Pac.  963,  holding,  upon  revocation  of  parol  license  to  lay  water  mains,  licensee 
entitled  to  reasonable  time  to  remove  property;  Schade  Brewing  Co.  v.  Falls  City 
Pickle  Works,  55  Wash.  204,  104  Pac.  175,  holding  that  if  the  right  to  maintain 
the  drain  over  the  servient  estate  was  revoked  by  sale,  it  was  for  the  owner  of 
latter  to  remove  the  same  as  the  owner  of  the  former  was  not  bound  to. 

Cited  in  note   (36  L.R.A.(N.S.)   403)   on  mandatory  injunction  for  removal  of 
encroaching  structure. 
Acquiescence  by  owner  without   knowledge   of   nse   of   land. 

Cited  in  Cautley  v.  Morgan,  51  W.  Va.  311,  41  S.  E.  201,  holding  that  eject- 
ment will  lie  against  party,  who,  having  license  to  extend  party  wall  10  inches 
upon  lot  of  adjoining  proprietor,  takes  16  inches  without  knowledge  of  licensor; 
Harrington  v.  McCarthy,  169  Mass.  494,  48  N.  E.  278,  holding  owner  not  guilty 
of  laches  may  enjoin  maintenance  of  building  projecting  over  his  boundary  line. 

5  L.  R.  A.  213,  GOULD  v.  STEIN,  149  Mass.  570,  14  Am.  St.  Rep.  455,  22  X.  E. 

47. 
Implied   warranty. 

Cited  in  Morse  v.  Moore,  83  Me.  479,  13  L.  R.  A.  225,  23  Am.  St.  Rep.  783, 
22  Atl.  362,  and  Northwestern  Cordage  Co.  v.  Rice,  5  N.  D.  434,  57  Am.  St.  Rep. 
563,  67  N.  W.  298,  holding  that  sale  by  particular  description  constitutes  war- 
ranty that  article  answers  that  description;  Hobart  v.  Young,  63  Vt.  370,  12  L. 
R.  A.  697,  21  Atl.  612,  holding  positive  statements  descriptive  of  kind,  or  assert- 
ive of  quality  and  condition,  of  thing  sold  are  warranties,  if  reasonably  suscep- 
tible of  such  construction,  and  relied  on;  Timken  Carriage  Co.  v.  Smith,  123 
Iowa,  558,  99  N.  VV.  183,  holding  warranty  implied  when  carriage  sold  by  descrip- 
tion, without  opportunity  to  inspect;  Ideal  Wrench  Co.  v.  Garvin  Mach.  Co. 
92  App.  Div.  204,  87  N.  Y.  Supp.  41  (dissenting  opinion),  majority  holding  that 
no  warranty  survives  acceptance  under  contract  for  goods  "equal  to  model/" 
As  to  quality. 

Cited  in  Miller  v.  Moore,  83  Ga.  692,  6  L.  R.  A.  376,  20  Am.  St.  Rep.  329,  10 
S.  E.  360,  holding  that  sale  of  "No.  2  white  mixed  corn,  bulk"  imports  warranty 
as  to  both  quality  and  variety;  Love  v.  Miller,  104  N.  C.  588,  10  S.  E.  685,  hold- 
ing contract  to  sell  cotton  of  "average  grade  of  middling  and  nice"  is  warranty 
that  cotton  shall  be  in  fact  of  quality  contracted  for. 

Cited  in  note  (102  Am.  St.  Rep.  614,  615)  on  implied  warranty  of  quality. 
As  to   description  and  sample. 

Cited  in  Miamisburg  Twine  &  Cordage  Co.  v.  Wohlhuter,  71  Minn.  485,  74  N. 
W.  175,  holding,  when  goods  warranted  to  correspond  both  to  description  and 
sample,  not  enough  that  bulk  correspond  to  sample  only;  Putnam-Hooker  Co.  v. 
Hewins.  204  Mass.  430,  90  N.  E.  983,  holding  a  description  of  the  cloth  in  letters 
constituting  the  contract,  was  a  warranty  of  cloth  to  be  delivered;  Proctor  v. 
Atlantic  Fish  Cos.  208  Mass.  354,  94  N.  E.  281,  holding  that  sale  of  goods  by 
description  amounts  to  warranty  that  goods  are  as  described  even  though  goods 
were  inspected  but  difference  not  detected. 

Cited  in  notes   (70  L.R.A.  664)   on  warranty  on  sale  of  goods  by  sample;    (35 
L.R.A. (N.S.)   270,  283,  285)   on  effect  of  sale  with  particular  description  of  kind 
or  quality;    (23   Eng.  Rul.  Cas.  464)    on   implied  warranty  on  sale  of  goods  by 
description. 
Burden  of  proof  as  to  breacli   of  warranty. 

Cited  in  Roth  v.  Continental  Wire  Co.  94  Mo.  App.  270,  68  S.  W.  594,  holding 


821  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  221 

burden  on  buyer  to  establish  defense  of  breach  of  warranty  to  action  for  purchase 

price. 

Waiter  of   implied   warranty  toy  failure   to   Inspect. 

Cited  in  Atkins  Bros.  Co.  v.  Southern  Grain  Co.  119  Mo.  App.  125,  95  S.  W. 
949,  holding  failure  to  inspect  a  shipment  of  corn  did  not  preclude  the  purchaser 
from  relying  upon  the  implied  warranty  of  merchantable  quality. 

Cited  in  note  (24  L.R.A.(N.S.)  237,  239)  on  failure  to  inspect  or  test  as  waiver 
of  express  warranty. 
Kiuiit    to   rely  on  express  warranty. 

Cited  in  Oak  Lawn  Sugar  Co.  v.  Sparks  Bros.  Mule  Co.  159  Mo.  App.  500,  141 
S.  W.  698,  holding  that  vendee  may  rely  on  express  warranty  even  though  he 
inspects  goods,  but  it  must  appear  that  he  did  so  rely. 

5  L.  R.  A.  217,  STATE  ex  rel.  CLEMENTS  v.  HUMPHREYS,  74  Tex.  466,  12  S. 

W.  99. 
Improperly    influencing    voters. 

Cited  in  Wallis  v.  Williams,  50  Tex.  Civ.  App.  628,  110  S.  W.  785,  holding 
that  there  was   no  presumption  that  persons   other  than  those  shown  to  have 
been  so,  were  affected  by  the  improper  influences. 
Legal  effect  of  bribery  in  election,  before  criminal  conviction. 

Cited  in  note  (90  Am.  St.  Rep.  88)  on  effect  of  offer  of  candidate  to  donate 
salary. 

Distinguished  in  Tinkle  v.  Wallace,  167  Ind.  387,  79  N.  E.  355,  holding  that  an 
election  may  be  contested  under  the  local  statutes  on  the  ground  of  bribery 
without  a  previous  criminal  conviction  of  the  offenders. 

5  L.  R.  A.  219,  LINDSAY  v.  GARVIN,  31  S.  C.  259,  9  S.  E.  862. 
Agreement  as  to  extension  of  mortgages. 

Cited  in  O'Neill  v.  Bennett,  33  S.  C.  245,  11  S.  E.  727,  holding  evidence  of 
oral  agreement  to  extend  mortgage  for  advances  inadmissible;  Levi  v.  Blackwell, 
35  S.  C.  516,  15  S.  E.  243,  holding  equitable  mortgage  can  be  extended  to  cover 
indebtedness  due  mortgagee,  not  included  in  it. 

Cited  in  notes  (6  L.R.A.  37)  on  proof  of  subsequent  agreement  to  contradict 
or  vary  written  contracts;  (56  Am.  St.  Rep.  668)  on  modification  of  written  con- 
tract by  subsequent  parol  agreement. 

5  L.  R.  A.  221,  TEFFT  v.  STERN  BERG,  40  Fed.  2. 

Conflict  of  jurisdiction. 

Cited  in  East  Tennessee,  V.  &  G.  R.  Co.  v.  Atlanta  &  F.  R.  Co.  15  L.  R.  A.  113, 
49  Fed.  617,  holding  appointment  of  receiver  of  railroad  by  Federal  court  gives 
paramount  jurisdiction  of  property  over  receiver  subsequently  appointed  by 
state  court,  upon  bill  filed  previous  to  that  in  Federal  court;  Re  Macon  Sash 
Door  &  Lumber  Co.  112  Fed.  333,  holding  comity  between  state  and  Federal 
courts  does  not  preclude  Federal  court  taking  jurisdiction  of  bankrupt  estate 
after  appointment  of  receiver  by  state  court  in  insolvency  proceeding;  Cobe  v. 
Ricketts,  111  Mo.  App.  110,  85  S.  W.  131,  holding  where  a  state  court  has  juris- 
diction of  the  parties  and  subject-matter  of  a  suit  to  wind-up  a  building  and 
loan  association  prior  to  one  for  same  purpose  in  a  Federal  court,  it  has  jurisdic- 
tion to  finally  determine  the  same,  notwithstanding  the  other  suit. 

Cited  in  footnotes  to  Gay  v.  Brierfield  Coal  &  I.  Co.  16  L.  R.  A.  5ti4.  which 
authorizes  suit  in  state  court  by  creditors  of  mortgagor,  although  foreclosure 
suit  pending  in  Federal  court;  East  Tennessee,  V.  &  G.  R.  Co.  v.  Atlanta  &  F. 
R.  Co.  15  L.  R.  A.  109,  which  holds  that  amicable  proceeding  in  state  court  doea 


5  L.R.A.  221]  L.  R.  A.  CASES  AS  AUTHORITIES.  822 

not  prevent  Federal  court  appointing  receiver;   Ford  v.  Judsonia  Mercantile  Co. 

6  L.  R.  A.  714,  which  holds  that  sheriff's  custody  of  attached  property  cannot  be 
transferred  to  receiver  by  court  of  chancery. 

Hit; lit    to  levy  on  property  in   custody  of  law. 

Cited  in  Pitkin  v.  Burnham,  62  Neb.  397,  55  L.  R.  A.  287,  89  Am.  St.  Rep. 
763,  87  N.  W.  160,  holding  property  held  by  officer  under  valid  process  not  subject 
to  levy  by  another  officer  under  different  process  against  same  debtor;  Allen  v. 
Gerard,  21  R.  I.  469,  49  L.  R.  A.  352,  79  Am.  St.  Rep.  816,  44  Atl.  592,  holding 
mone^y  payable  by  one  as  clerk  of  court  not  subject  to  trustee  process;  Reger 
v.  Manhattan  Brass  Co.  6  Pa.  Super.  Ct.  379,  41  W.  N.  C.  422,  holding  property  in 
hands  of  claimant  under  bond  to  deliver  to  sheriff  not  subject  to  other  process 
against  same  debtor. 

Cited  in  footnote  to  Tuck  v.  Manning,  5  L.  R.  A.  666,  which  refuses  to  allow 
general  creditors  to  intervene  and  obtain  money  paid  into  court  for  their  debtor. 

Cited  in  note  (10  L.R.A.  52.9)  on  property  in  custody  of  law  not  subject  to 
seizure. 

5  L.  R.  A.  226,  BROWN  v.  CIRCUIT  JUDGE,  75  Mich.  274,  13  Am.  St.  Rep. 

438,  42  N.  W.  827. 
Jury   trial    in    chancery   cases. 

Cited  in  Maier  v.  Wayne  Circuit  Judge,  112  Mich.  494,  70  N.  W.  1032,  holding 
statute  that  all  issues  upon  the  legality  of  a  marriage  (except  physical  inca- 
pacity) shall  be  tried  by  jury,  not  mandatory,  but  may  be  waived;  Raymond  v. 
Flavel,  27  Or.  231,  40  Pac.  158,  holding  submission  to  jury  discretionary  under 
Code  authorizing  submission  whenever,  in  an  equity  suit,  it  becomes  necessary 
or  proper  to  obtain  verdict;  McCarthy  v.  Kent  Circuit  Judge,  118  Mich.  365,  76 
N.  W.  756,  holding  jury's  findings  merely  advisory  under  statute  making  prac- 
tice same  as  in  personal  actions  at  law. 
Rig-ht  to  jury  trial  in  equity  cases  and  conclnsiveness  of  verdict. 

Cited  in  Smith  v.  Speed,  11  Okla.  107,  55  L.  R.  A.  406,  66  Pac.  511,  holding  that 
legislature  cannot  require  hearing  for  contempt  to  be  submitted  to  trial  by  jury; 
Detroit  Nat.  Bank  v.  Blodgett,  115  Mich.  170,  73  N.  W.  885,  holding  chancery 
power  to  pass  upon  questions  of  fact  without  jury  cannot  be  abridged  by  statute; 
Arnold  v.  Sinclair,  12  Mont.  278,  29  Pac.  1124,  holding  verdict  not  binding  upon 
court  under  Code  provision  that  in  all  cases  issues  of  fact  must  be  tried  to  a 
jury;  Laprad  v.  Sherwood,  79  Mich.  523,  44  N.  W.  943,  as  to  invalidity  of  statute 
providing  for  trial  of  chancery  cases  by  jury. 
Power  of  legislature  over  courts. 

Cited  in  Johnson  v.  State,  42  Tex.  Grim.  Rep.  97,  51  L.  R.  A.  277,  58  S.  W. 
60  (dissenting  opinion),  majority  holding  Code  provision  against  reversing  judg- 
ment for  error  in  charge,  not  excepted  to  by  bill  or  motion  for  new  trial,  valid 
as  affecting  remedy,  and  not  rights;  Nichols  v.  Superior  Court  Judge,  130  Mich. 
195,  89  N.  W.  691,  holding  that  legislature  created  superior  court  with  power  to 
punish  contempts;  Barnett  v.  State,  42  Tex.  Grim.  Rep.  321,  62  S.  W.  765  (dis- 
senting opinion),  majority  sustaining  statute  as  to  reservation  of  exceptions  in 
criminal  cases. 

Distinguished   in   Webber   v.   Hayes,    117   Mich.    259,    75   N.    W.    622,   holding 
statute  permitting  garnishment  for  lands  held  by  conveyance  void  as  to  creditors 
not  unconstitutional  as  depriving  equity  of  jurisdiction. 
Encroachment    upon    powers    of   judiciary. 

Cited  in  Bridge  Street  &  A.  Gravel-Road  Co.  v.  Hogadone,  150  Mich.  648,  114 
N.  W.  917,  holding  a  statute  which  gave  to  the  toll-road  commissioners  the  right 


823  L,  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  231 

to  determine  when  a  toll  road  was  out  of  repair  and  to  prohibit  the  toll  company 
from  taking  toll  thereafter,  was  an  encroachment  upon  the  courts  of  chancery, 
and  unconstitutional. 
Equity   jurisdiction. 

Cited  in  Mack  v.  Frankfort,  123  Mich.  425,  82  N.  W.  211,  holding  allegation  of 
fraud  in  issuance  of  bonds  not  basis  for  bill  in  equity,  where  equity  powers  not 
necessary  to  relief  sought;  Northwestern  Mut.  L.  Ins.  Co.  v.  Amos,  136  Mich.  237, 
98  N.  W.  1018  (dissenting  opinion)  ;  Fred  Macey  Co.  v.  Macey,  143  Mich.  160,  5 
L.R.A. (X.S.)  1048,  106  N.  W.  722,— on  the  concurrent  jurisdiction  of  courts  of 
equity  and  of  law  in  cases  of  fraud. 
Repeals  by  Implication. 

Cited  in  Re  Bushey,  105  Mich.  68,  62  N.  W.  1036,  holding  legislature  not  pre- 
sumed to  have  intended  to  repeal  a  law  not  referred  to,  unless  intent  clear. 
When   mandamus  or  certiorarl  lies. 

Cited  in  State  v.  Hart,  19  Utah,  444,  57  Pac.  415,  and  Brown  v.  Pontiac  Min. 
Co.  105  Mich.  656,  63  N.  W.  1000,  holding  mandamus  to  inferior  court,  proper 
remedy  for  refusal  to  entertain  jurisdiction;  Crooks  v.  Fourth  Judicial  Dist. 
Court,  21  Utah,  108,  59  Pac.  529  (dissenting  opinion),  majority  denying  right  to 
cortiorari  to  review  judgment  of  district  court  dismissing  appeal,  where  judgment 
made  final  by  Constitution. 

Cited  in  footnote  to  Territorial  Insane  Asylum  v.  Wolfley,  8  L.  R.  A.  188,  which 
denies  mandamus  to  compel  governor  to  sign  warrant  for  funds  for  asylum. 

Cited  in   note    (15  Eng.  Rul.  Cas.   135)    on  power  of  higher  court  to  require 
justices  to  review  their  discretionary  decisions. 
Infringement   on   powers   of  law  court   l»y  chancery. 

Cited  in  note   (8  L.R.A.  (N.S.)   866)  on  infringement  upon  powers  of  law  court 
by  permitting  chancery  to  set  aside  verdict  upon  issue  directed. 
Retention  of  jurisdiction  by  court  first  acquiring:  it. 

Cited  in  Hartford  F.  Ins.  Co.  v.  Ledford,  151  111.  App.  417,  to  the  point  that 
court  first  acquiring  jurisdiction  of  subject-matter  must  retain  it  until  fully  dis- 
posed of  unless  complete  justice  cannot  be  done. 

5  L.  R.  A.  231,  CASE  MFG.  CO.  v.  SMITH,  40  Fed.  339. 
Waiver   of  lien. 

Cited  in  Henry  &  C.  Co.  v.  Fisherdick,  37  Neb.  223,  55  N.  W.  643;  Peninsular 
General  Electric  Co.  v.  Norris,  100  Mich.  506,  59  N.  W.  151;  Hooven,  O.  &  R.  Co. 
v.  John  Featherstone's  Sons,  49  C.  C.  A.  243,  111  Fed.  95,  Affirming  99  Fed.  181, — 
holding  reservation  of  title  not  a  waiver  of  mechanic's  lien  for  property  sold; 
Farmers'  &  M.  Nat.  Bank  v.  Taylor,  91  Tex.  82,  40  S.  W.  876,  holding  lien  not 
waived  by  taking  note  and  mortgage  on  the  property  and  suing  thereon;  Warner 
Elevator  Mfg.  Co.  v.  Capitol  Invest.  Bldg.  &  L.  Asso.  127  Mich.  326,  89  Am.  St. 
Rep.  473,  86  N.  W.  828,  and  Phoenix  Mfg.  Co.  v.  McCormick  Harvesting  Mach. 
Co.  Ill  Wis.  574,  87  N.  W.  458,  holding  mere  taking  of  chattel  mortgage  on 
chattels  before  annexation  to  realty  not  a  waiver  of  mechanic's  lien. 
Of  conditional  vendor. 

Cited  in  Pettyplace  v.  Groton  Bridge  &  Mfg.  Co.  103  Mich.  160,  61  N.  W.  266, 
holding  conditional  sale  of  personal  property  not  made  absolute  by  vendor's 
accepting  additional  security;  Mizell  Live  Stock  Co.  v.  J.  J.  McCaskill  Co.  59  Fla. 
329,  51  So.  547,  to  the  point  that  conditional  sale  of  property  expressed  in  instru- 
ment is  not  inconsistent  with  lien  upon  other  property  given  by  same  instrument; 
Scott  Mfg.  Co.  v.  Morgan,  22  Montg.  Co.  L.  Rep.  207;  Elwood  State  Bank  v. 
Mock,  40  Ind.  App.  688,  82  N.  E.  1003,— holding  right  of  vendor  of  machinery  to 


5  L.R.A.  231]  L.  R.  A.  CASES  AS  AUTHORITIES.  824 

take  and  hold  mechanic's  lien  not  waived  by  stipulating  in  contract  of  sale  that 
title  remains  in  him  until  full  payment  of  purchase  price;   Fairbanks-Morse  Co. 
v.  Union  Bank  &  T.  Co.  55  Wash.  542,  104  Pac.  815,  holding  retention  of  title  to 
marine  engine  under  conditional  sale  contract  not  waiver  of  lien  upon  vessel. 
Priority   of   liens. 

Cited  in  note  (12  L.  R.  A.  35)  on  priority  of  mechanic's  liens  over  subsequent 
liens. 

5  L.  R.  A.  233,  JENNINGS  v.  BANK  OF  CALIFORNIA,  79  Cal.  323,   12  Am. 

St.  Rep.  145,  21  Pac.  852. 
Corporation's  lien  on  stock  for  stockholder's  indebtedness. 

Cited  in  Costello  v.  Portsmouth  Biewing  Co.  69  N.  H.  409,  43  Atl.  G40,  holding 
Tjy-law  creating  lien  on  stock  binding  on  stockholder  chargeable  with  notice ; 
Stafford  v.  Produce  Exchange  Bkg.  Co.  61  Ohio  St.  168,  76  Am.  St.  Rep.  371,  55 
N.  E.  162,  holding  that  corporation  may  assert  lien  reserved  in  stock  certificate 
against  transferee;  Bronson  Electric  Co.  v.  Rheubottom,  122  Mich.  611,  81  N.  W. 
563,  holding  by-law  creating  lien  on  stock  for  debts  due  to  corporation  valid 
except  against  innocent  purchasers  for  value;  Morrison-Wentworth  Bank  v. 
Kerdolff,  75  Mo.  App.  301.  holding  to  the  same  effect;  Lankershim  Ranch  Land 

6  Water  Co.  v.  Herberger,   82   Cal.   603,  23   Pac.   134,  denying  lien   for  unpaid 
instalments  where  possession  of  certificate  lacking;  Ralston  v.  Bank  of  California, 
112  Cal.  214,  44  Pac.  476,  holding  bank's  refusal  to  transfer  stock  not  conversion 
when  owner  indebted  to  bank;  Des  Moines  Nat.  Bank  v.  Warren  County  Bank, 
97  Iowa,  210,  66  N.  W.  154,  holding  effect  of  knowledge  of  by-law  giving  bank 
lien  on  stock  for  debts  due  it  from  stockholder,  was  to  make  contract  by  which 
bank  was  given  lien  upon  stock  represented,  valid  as  between  bank  and  stock- 
holder,  for  liabilities   incurred   after  certificate   issued;    Des  Moines  Loan   &  T. 
Co.  v.  Des  Moines  Nat.  Bank,  97  Iowa,  675,  66  N.  WT.  914,  holding  that  corpora- 
tion has  no  lien,  where  it  made  no  claim  thereto  when  stock  was  presented  to  it 
by  assignee  and  indorsement  made  on  stubs  that  he  held  it  as  collateral. 

Cited  in  footnote  to  Buffalo  German  Ins.  Co.  v.  Third  Nat.  Bank,  48  L.  R.  A. 
107,  which  denies  equitable  lien  on  national  bank  stock  under  by-law  in  conflict 
with  act  of  Congress. 

Cited  in  note   (39  L.R.A.  (N.S.)   293,  297)  on  priority  as  between  lien  of  corpo- 
ration and  pledgee  or  purchaser  of  stock. 
Agent's  power  to  act  for  corporation. 

Cited  in  Greig  v.  Riordan,  99  Cal.  322,  33  Pac.  913,  holding  corporation's 
agent  may  assign  chose  in  action;  Greig  v.  Riordan,  99  Cal.  322,  33  Pac.  913, 
sustaining  power  of  corporate  general  manager  to  assign  chose  in  action  for 
collection;  Preston  v.  Central  California  Water  &  Irrig.  Co.  11  Cal.  App.  201,  104 
Pac.  462,  holding  proof  of  execution  of  assignment  of  account  for  transporting 
freight  by  manager  or  superintendent  of  railroad  corporation,  and  of  account  for 
goods  sold  by  mercantile  company  by  manager  thereof  prima  facie  proof  of 
authority  of  managers  to  execute  them. 
Rig'hts  of  aasig-nee. 

Cited  in  Miller  v.  Engle,  3  Cal.  App.  334,  85  Pac.  159,  holding  assignee  of 
certificate  of  purchase  of  state  lands  has  no  equities  entitling  him  to  greater 
rights  than  his  assignor. 

Cited  in  note  (57  Am.  St.  Rep.  391,  395)  on  rights  of  assignee  of  stock  not 
transferred  in  manner  prescribed  by  regulations. 


S-15  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  230 

5  L.  R.  A.  230,  OMAHA  &  G.  SMELTING  &  REF.  CO.  v.  TABOR,  13  Colo.  41, 
16  Am.  St.  Rep.  185,  21  Pac.  925. 

Subsequent  action  to  recover  money  paid  by  plaintiff  as  result  of  adjudication 
in  main  case  in  Omaha  &  G.  Smelting  &  Ref.  Co.  v.  Rucker,  6  Colo.  App.  335, 
40  Pac.  853. 
Evidence  of  agrent's  declarations. 

Cited  in  Union  Coal  Co.  v.  Edtnan,  16  Colo.  440,  27  Pac.  1060,  holding  reports 
signed  by  one  as  superintendent  inadmissible  to  show  agency. 
Trover. 

Cited  in  Jones  v.  Kellogg,  51  Kan.  284,  37  Am.  St.  Rep.  278,  33  Pac.  997, 
holding  title  in  third  person  no  defense  in  action  for  trover;  Crosby  v.  Stratton, 
17  Colo.  App.  217,  68  Pac.  130,  holding  right  to  purchase  stock  not  support 
action  in  trover  against  one  who  purchased  more  than  proportionate  share. 

Cited  in  note  in   (14  Am.  St.  Rep.  804)  on  conversion  of  personalty  sufficient 
to  sustain  trover. 
Conversion:   license  by  cotennnt  HS  defense. 

Cited  in  Sullivan  v.  Sherry,  111  Wis.  478,  87  Am.  St.  Rep.  890,  87  N.  W.  471, 
holding  licensee  of  cotenant  liable  for  conversion  of  timber. 

Cited  in  note   (91  Am.  St.  Rep.  882,  884)   on  effect  of  license  by  cotenant  of 
mine. 
Parol  evidence  as  to  intention. 

Cited  in  note   (6  L.  R.  A.  40)   on  parol  evidence  as  to  intention. 
Government   land;   effect   of  final   certificate. 

Cited  in  Struby-Estabrook  Mercantile  Co.  v.  Davis,  18  Colo.  95,  36  Am.  St. 
Rep.  266,  31  Pac.  495,  holding  final  receipt  issued  upon  homestead  entry  binding 
as  patent;  Sayre  v.  Sage,  47  Colo.  563,  568,  108  Pac.  160,  holding  purchaser  not 
invested  with  any  additional  property  in  land  by  patents,  but  only  given  better 
legal  evidence  of  title. 
Adverse  possession. 

Cited  in  notes  (9  L.R.A.  772)  en  adverse  possession  under  color  of  title;  (12 
L.R.A.(N.S.)  1144)  on  right  of  permissive  possessor  to  acquire  title  by  adverse 
possession;  (15  L.R.A.(X.S.)  1185)  on  necessity  of  color  of  title,  not  expressly 
made  a  condition  by  statute,  in  adverse  possession;  40  L.R.A.(X.S.)  822,  on 
title  to  mining  claim  by  adverse  possession. 
Conversion  by  purchaser  in  grood  faith. 

Cited  in  footnotes  to  Woods  v.  Nichols,  48  L.  R.  A.  773,  which  holds  purchaser 
in  good  faith  from  purchaser  by  conditional  sale  liable  for  conversion  on  resell- 
ing; Dean  v.  Cushman,  55  L.  R.  A.  959,  which  denies  liability  for  conversion 
without  demand,  of  purchaser  in  good  faith  of  mortgaged  chattels  from  mort- 
gagor in  possession. 
Conversion;  measure  of  damages. 

Cited  in  Sylvester  v.  Craig,  18  Colo.  48,  31  Pac.  387,  and  Sutton  v.  Dana,  15 
Colo.  101,  25  Pac.  90,  holding  measure  of  damages  for  conversion  is  value  at  time 
of  taking,  witli  interest;  Illinois  C.  R.  Co.  v.  Le  Blanc,  74  Miss.  648,  21  So.  748, 
and  Dai-ant  Min.  Co.  v.  Percy  Consol.  Min.  Co.  35  C.  C.  A.  254,  93  Fed.  168, 
holding  only  value  of  ore  in  place  recoverable,  where  taking  inadvertent ;  White 
v.  Yawki-y,  108  Ala.  275,  32  L.  R.  A.  201,  54  Am.  St.  Rep.  159,  19  So.  360, 
holding  value  immediately  after  severance,  with  interest,  recoverable  for  con- 
version of  logs  by  innocent  trespasser;  United  Coal  Co.  v.  Canon  City  Coal  Co. 
24  Colo.  123,  48  Pac.  104.").  holding  damages  for  coal  mined  by  wilful  trespassers, 
value  at  time  of  conversion  without  deduction  for  labor;  White  v.  Yawkey,  108 


5  L.R.A.  236]  L.  R.  A.  CASES  AS  AUTHORITIES.  826 

Ala.  275,  32  L.R.A.  199,  54  Am.  St.  Rep.  159,  19  So.  360,  holding  measure  of 
damages  for  conversion  of  logs  or  trees  where  trespass  unintentional  value  im- 
mediately after  severance  with  interest;  Sigel-Campion  Live  Stock  Co.  v.  Holly, 
44  Colo.  583,  101  Pac.  68,  holding  measure  of  damages  is  fair  market  value  of 
property  at  time  of  conversion  and  under  local  statute  legal  rate  of  interest 
from  time  of  conversion  to  time  of  trial;  Bender  v.  Brooks,  103  Tex.  336,  127 
S.  W.  168,  holding  that  measure  of  damages  against  one  who  innocently  takes 
oil  from  another's  land  is  market  value  of  oil  taken  less  reasonable  cost  of 
producing  it. 

Cited  in  note  (17  Eng.  Rul.  Cas.  883,  884)  on  measure  of  damages  against  one 
mining  beyond  the  limits  of  his  property. 
Interest ;   when  recoverable. 

Cited  in  Salazar  v.  Taylor,  18  Colo.  543,  33  Pac.  369,  holding  interest  recover- 
able as  such  only  as  by  statute  provided;  Updegraff  v.  Lesem,  15  Colo.  App.  312, 
62  Pac.  342,  and  Perkins  v.  Marrs,  15  Colo.  266,  25  Pac.  168,  holding  damages 
equivalent  to  interest  allowable  for  conversion;  New  Dunderberg  Min.  Co.  v.  Old, 
38  C.  C.  A.  93,  97  Fed.  154,  holding  interest  recoverable  from  date  of  wrongful 
conversion  of  property;  American  Xat.  Bank  v.  Hammond,  25  Colo.  375,  55  Pac. 
1090,  holding  damages  equal  to  interest  recoverable  in  action  for  false  representa- 
tions inducing  sale  on  credit;  Mayo  v.  Wahlgreen,  9  Colo.  App.  518,  50  Pac.  40, 
holding  interest  recoverable  as  damages  in  action  for  misrepresenting  to  partner 
purchase  price  of  property;  Pettit  v.  Thalheimer,  3  Colo.  App.  358,  33  Pac.  277, 
holding  interest  not  recoverable  in  action  against  agent  for  negligence  in  placing 
loan;  Greeley,  S.  L.  &  P.  R.  Co.  v.  Yount,  7  Colo.  App.  193,  42  Pac.  1023,  holding 
interest  not  recoverable  for  unauthorized  appropriation  of  land;  Isabella  Gold 
Min.  Co.  v.  Glenn,  37  Colo.  173,  86  Pac.  349,  holding  interest  recoverable  in  action 
for  breach  of  covenant  of  quiet  enjoyment  in  mining  lease;  Montezuma  County 
v.  Wheeler,  39  Colo.  213,  89  Pac.  50,  holding  interest  recoverable  only  where 
there  is  express  statutory  provision  therefor;  Cree  v.  Lewis,  49  Colo.  194,  112 
Pac.  326,  holding  that  one  who  wrongly  converts  money  may  be  required  to  pay 
interest  thereon;  Brown  v.  First  Xat.  Bank,  49  Colo.  400,  113  Pac.  483,  holding 
that  director  of  bank  who  has  misappropriated  money  is  liable  for  interest  from 
time  of  taking;  Denver  v.  Barber  Asphalt  Paving  Co.  72  C.  C.  A.  402,  141  Fed. 
71,  holding  interest,  whether  as  damages  or  under  statute,  must  be  given  from 
date  of  demand  of  payment  for  labor  performed  and  materials  furnished. 

Cited  in  note  (28  L.R.A.(X.S.)  21,  30)  on  interest  on  unliquidated  damagea 
Color  of  title. 

Cited  in  Sayre  v.  Sage,  47  Colo.  563,  108  Pac.  160,  holding  color  of  title  can 
only  arise  out  of  instrument  purporting  to  convey  real  estate. 
Parol   variation   of  consideration    in   deed. 

Distinguished  in  Cheesman  v.  Xicholl,  18  Colo.  App.  177,  70  Pac.  797,  holding 
though  additional  consideration  rest  upon  contingency,  oral  agreement  to  pay  it 
may  be  proved  and  recovered  upon  by  vendor. 
Revocabillty   of  license. 

Cited  in  notes  (31  Am.  St.  Rep.  713)  on  nature  and  revocation  of  parol  licenses; 
(16  Eng.  Rul.  Cas.  80)  on  revocability  of  license. 
Evidence  as  to  credibility   of   witness. 

Cited  in  note  (82  Am.  St.  Rep.  42)  on  evidence  to  show  credibility  or  bias  of 
witness. 

e  L.  R.  A.  245,  BOGGS  v.  BODKIN,  32  W.  Va.  566,  9  S.  E.  891. 

Subsequent  action  of  ejectment  by  same  petitioners,  in  Bodkin  v.  Arnold,  45 
W.  Va.  94,  30  S.  E.  154. 


827  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  253 

Subsequent  action  for  inesne  profits,  in  Bodkin  v.  Arnold,  48  W.  Va.  109,  35 
S.  E.  980. 
Specific  performance  of  laud  contract. 

Cited  in  Miller  v.  Lorentz,  39  W.  Va.  172,  19  S.  E.  391,  decreeing  specific  per- 
formance of  partly  completed  verbal  contract  for  sale  of  land ;  McCully  v.  McLean, 
48  W.  Va.  629,  37  S.  E.  559,  holding  parol  contract  for  exchange  of  lands  will 
not  be  enforced  where  it  appears  to  have  been  altered;  Dunn  v.  McGovern,  116 
Iowa,  666,  88  X.  W.  938,  denying  specific  performance  when  contract  is  ambiguous; 
RatlifT  v.  Sommers,  55  W.  Va.  43,  46  S.  E.  712,  1  A.  &  E.  Ann.  Cas.  970,  holding 
parol  contract  enforceable  in  equity,  where  there  was  possession,  payment,  and 
improvements  by  vendee;  Bell  v.  Whitsell,  64  W.  Va.  5,  60  S.  E.  879,  holding 
oral  contract  for  sale  of  land  will  not  be  enforced  in  equity  unless  established 
by  full,  clear,  and  convincing  evidence;  Armstrong  v.  Maryland  Coal  Co.  67 
W.  Va.  613,  69  S.  E.  195,  holding  that  vendor  may  enforce  specific  performance 
if  able  to  give  title  at  stipulated  time  though  he  could  not  do  so  at  time  contract 
was  made;  School  Dist.  No.  1  v.  Holt,  226  Mo.  419,  126  S.  W.  462,  holding  con- 
tract taken  out  of  statute  of  frauds  where  possession  was  had  by  both  parties  in 
pursuance  of  agreement  and  buyer  could  not  be  restored  to  statu  quo. 

Cited  in  footnotes  to  Russell  v.  Briggs,  53  L.  R.  A.  556,  which  holds  super- 
intendence of  repairs  on  buildings,  etc.,  insufficient  to  entitle  one  to  specific  per- 
formance of  oral  agreement  to  convey  interest  in  land  to  be  received  in  exchange; 
Hodges  v.  Kowing,  7  L.  R.  A.  87,  which  holds  contract  enforceable  against  pur- 
chaser though  not  signed  by  vendor;  Coffey  v.  Emigh,  10  L.  R.  A.  127,  which 
holds  fair,  reasonable,  and  just  contract  enforceable  if  both  parties  are  able  to 
perform. 
Rescission  of  contract. 

Cited  in  Cunningham  v.  Cunningham,  46  W.  Va.  4,  32  S.  E.  998,  holding  posses- 
sion of  land  taken  under  verbal  contract  of  sale  must  be  surrendered  to  make 
complete  recission;  Marsh  v.  Despard,  56  W.  Va.  140,  49  S.  E.  24,  holding 
executory  contract  for  sale  of  land  rescinded  by  purchaser's  leasing  from  seller. 
Proof  of  ovrneranip. 

Cited  in  Tregea  v.  Mills,  11  Wyo.  456,  72  Pac.  578,  holding  preponderance  of 
evidence  required  to  show  land  belonged  to  partnership. 

5  L.  R.  A.  253,  GOSHEN  v.  ENGLAND,  119  Ind.  368,  21  N.  E.  977. 
Liability  of  municipality  for  neglect. 

Cited  in  Nappanee  v.  Ruckman,  7  Ind.  App.  364,  34  N.  E.  609,  holding 
municipal  corporation  liable  for  negligence  in  failing  to  keep  street  in  repair; 
Elliott  v.  Kansas  City,  174  Mo.  567,  74  S.  W.  617,  holding  city  liable  for  reputable 
physician's  mistakes  in  treating  one  who  fell  on  defective  walk. 

Cited  in  footnotes  to  Burns  v.  Bradford,  11  L.  R.  A.  726,  which  holds  city  not 
liable  for  injury  due  to  slight  deviation  of  sidewalk  from  original  level ;  Childrey 
v.  Huntington,  11  L.  R.  A.  313,  which  holds  city  not  liable  for  injury  to  policeman 
while  struggling  with  person  under  arrest,  by  catching  foot  in  hole  not  dan- 
gerous to  persons  walking;  Teagar  v.  Fleir.ingsburg,  53  L.  R.  A.  792,  which  holds 
mere  building  of  step  in  sidewalk  not  negligence  rendering  city  liable  for  injury 
to  pedestrians ;  Texas  &  P.  R.  Co.  v.  White,  62  L.  R.  A.  90,  holding  aggravation 
c-f  injury  through  failure  to  obtain  medical  treatment  not  chargeable  against  one 
causing  injury;  Harden  v.  Jackson,  66  L.R.A.  986,  which  holds  plank  sidewalk 
not  so  unsafe  as  to  render  city  liable  to  one  falling  thereon  because  his  cane 
goes  through,  although  the  edges  of  planks  have  become  so  decayed  as  not  to 
withstand  pressure  of  cane. 


5  L.R.A.  253]  L.  R.  A.  CASES  AS  AUTHORITIES.  828 

Cited  in  notes  ( 10  L.  R.  A.  737 )  on  duty  of  municipality  to  keep  streets  and 
sidewalks  in  safe  condition,  and  liability  for  neglect  to  do  so;  (9  L.  R.  A.  210) 
on  liability  of  municipality  for  acts  or  omissions  of  officers  or  agents;  (19  L. 
R.  A.  454)  on  distribution  between  public  and  private  functions  of  municipalities 
as  to  liability  for  negligence. 
Contributory  neK-lisreiice. 

Cited  in  note   (12  L.  R.  A.  280)   on  contributory  negligence  must  be  proximate 
cause  of  injury. 
Subsequent   neg'lisence  affectinsr  recovery   for   injury. 

Cited  in  Belcher  v.  Missouri,  K.  &  T.  R.  Co.  92  Tex.  597.  50  S.  W.  559,  holding 
that  owner  of  cattle  can  recover  for  such  portion  of  injury  done  cattle  by  failure 
of  railroad  to  provide  feed,  as  his  diligence  could  not  have  avoided;  Terre  Haute 

6  I.  R.  Co.  v.  Sheeks,  155  Ind.  99,  56  X.  E.  434,  holding  aggravation  of  injuries 
by  negligence  of  injured,  matter  of  defense ;   Columbia  City  v.  Langohr,  20  Ind. 
App.  404,  50  X.   E.   831,  holding  recovery  for  injury  should  not  be   reduced  if 
directions    prescribed    by    physician    aggravated    injury;    Citizens'    Street    R.    Co. 
v.  Hobbs,  15  Ind.  App.  619.  43  X.  E.  479.  holding  injured  party  cannot  recover  for 
aggravation  of  injury  caused  by  neglect  in  procuring  medical  attendance;   Salem 
v.  Walker,  16  Ind.  App.  691,  46  X.  E.  90,  holding  recovery  not  allowable  for  injury 
by  being  thrown  from  horse,  when  rider  rode  him  up  to  obstruction  after  being 
once  frightened;  Cromer  v.  Logansport,  38  Ind.  App.  671,  78  X.  E.  1045,  holding 
burden  of  proof  on  defendant  in  cases  involving  question  as  to  duty  of  plaintiff  to 
minimize  damages  whether  action  in  contract  or  tort;  Indiana  Union  Traction  Co. 
v.  Ohne.  45  Ind.  App.  635,  89  X.  E.  507,  holding  that  subsequent  aggravation  of 
injury   by  party   does   not   constitute   contributory   negligence;    Viou   v.   Brooks- 
Scanlon  Lumber  Co.  99  Minn.  104,  108  X.  W.  89],  9  A.  &  E.  Ann.  Cas.  318,  on 
burden  of  defendant  in  action  for  personal  injury  to  show  amount  of  aggravation 
due  to  malpractice  in  reduction  of  damages;  Atkinson  v.  Fisher,  4  Xeb.   (Unof.) 
23,  93  X.  W.  211)   holding  negligence  of  person  injured  may  be  taken  into  con- 
sideration in  determining  damages  and  he  cannot  recover  for  damages  avoidable 
by  reasonable  and  ordinary  diligence. 

Cited  in  footnotes  to  Maguire  v.  Slieehan.  59  L.R.A.  496.  which  sustains  lia- 
bility for  entire  injury  through  negligence,  though  shock  brought  on  delirium 
tremens,  retarding  recovery;  Chicago  City  R.  Co.  v.  Saxby,  68  L.R.A.  164.  which 
sustains  right  of  injured  person  to  recover  for  tuberculous  condition  of  knee  re- 
sulting from  injury,  notwithstanding  fact  that  tuberculosis  was  organic  and  mis- 
takes in  treatment. 

Cited   in   note    (49   L.   R.   A.    826,   827,   829,   830)    on   obeying   or   disobeying 
physician  as  affecting  remedy  of  injured  person  against  one    who  injured  him. 
Qualification    of    juror*. 

Cited  in  Michigan  City  v.  Phillips,  163  Ind.  45o.  71  X.  E.  20.">.  holding  jurors 
who  are  made  members  of  regular  panel  just  before  trial  not  subject  to  challenge 
as  jurors  who  have  served  within  year  under  statute,  though  they  have  served 
during  same  term;  Mason  v.  State,  170  Ind.  197,  83  X.  E.  613,  holding  sus- 
taining of  challenge  of  juror  as  having  served  within  year  by  trial  court  raises 
presumption  that  juror  was  not  member  of  regular  panel. 

Cited  in  footnote  to  Reed  v.  Peacock.  49  L.  R.  A.  423,  which  holds  Odd  Fellow 
not  disqualified  as  juror  in  action  by  Odd  Fellow  of  other  lodge. 

Distinguished  in  Brooks  v.  Jennings  County  Agri.  Joint  Stock  Asso.  35  Ind, 
App.  223,  73  X.  E.  951,  holding  under  later  statute  that  juror,  though  membvr 
of  regular  panel,  may  be  challenged  as  having  served  within  year. 


829  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  270 

Evidence   of  subsequent   precautions. 

Cited  in  footnotes  to  Bemis  v.  Temple,  26  L.  R.  A.  254,  which  upholds  right  to 
show  effect  on  different  horses  of  suspended  flag;  Georgia  S.  &  F.  R.  Co.  v. 
Cardedge,  59  L.  R.  A.  118,  which  holds  incompetent,  evidence  of  additional 
precautions  after  injury. 

Cited  in  note  (32  L.R.A.(N.S.)  1106,  1146)  on  admissibility  of  evidence  of 
condition  before  and  after  accident  of  property  whose  defects  alleged  to  have 
caused  injury. 

Disapproved  in  part  in  Terre  Haute  &  I.  R.  Co.  v.  Clem,  123  Ind.  21,  7  L.  R.  A. 
590,  18  Am.  St.  Rep.  303,  23  N.  E.  965,  holding  evidence  of  subsequent  repairs 
inadmissible  to  show  negligence. 

IH-IViKla  nt's    knowledge    of    conditions    as    affecting    liability    for    negli- 
gence. 

Cited  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Loos,  38  Ind.  App.  11,  77  N.  E. 
948    (dissenting  opinion),  on  knowledge  of  defendant  implied  from  prior  occur- 
rences and  conditions,  as  basis  of  action  for  negligence. 
Evidence  of  physician  as  to  injury. 

Cited  in  Allen  v.  Bear  Creek  Coal  Co.  43  Mont.  283,  115  Pac.  673,  holding  that 
evidence  of  attending  physician  as  to  character  of  injury  is  proper. 

Cited  in  note  (24  Am.  St.  Rep.  752)  on  evidence  of  physician  as  to  character 
of  injury. 

5  L.  R.  A.  259,  UTAH  MIX.  &  MFG.  CO.  v.  DICKERT  &  M.  SULPHUR  CO.  6 

Utah,   183..  21  Pac.  1002. 
Abandonment    of    mining   claim.  , 

Cited  in  Lockhart  v.  Wills.  9  X.  M.  270,  50  Pac.  318,  holding  evidence  ot 
wrongful  ouster  of  locator  of  mining  claim  admissible  on  question  of  abandonment. 

Cited  in  notes   (87  Am.  St.  Rep.  412)   on  abandonment  and  forfeiture  of  min- 
ing claims:    (9  L.R.A.  (X.S.)   1137)  on  effect  of  assessment  work  on  mining  claim 
by  one  not  owner  of  legal  title  to  prevent  forfeiture. 
Relocation. 

Cited  in  Thompson  v.  Burk,  2  Alaska,  253,  holding  agent,  trustee,  or  other 
person  holding  confidential  relations  with  original  locator,  not  permitted  to 
relocate  mining  claims  and  secure  advantages  to  himself  from  breach  of  trust 
obligations. 

Cited  in  note  (68  L.R.A.  836)  on  relocation  of  mining  claim  as  abandoned  or 
forfeited. 

5  L.  R.  A.  270,  BOETTLER  v.  TEXDICK,  73  Tex.  488,  11  S.  W.  497. 
Arbitrator's  decision  as  affecting  recovery  for  vrorlc. 

Cited  in  Electric  Lighting  Co.  v.  Elder  Bros.  115  Ala.  152,  21  So.  983,  holding 
partv  to  whose  satisfaction  work  is  to  be  done  must  be  dissatisfied  in  good  faith: 
Hanley  v.  Walker,  79  Mich.  615,  8  L.  R.  A.  209,  45  N.  W.  57,  holding  architect's 
certificate  precedent  to  right  of  recovery,  Collier  v.  Betterton,  8  Tex.  Civ.  App. 
484,  29  S.  W.  490,  holding  acceptance  by  architect  of  building  binding  upon 
owner  as  to  material  and  work;  Childress  v.  Smith.  90  Tex.  (il(i,  40  S.  W.  389, 
holding  default  in  failing  to  pay  as  work  progressed  must  be  shown  not  to  be 
due  to  architect's  fraudulent  or  wilful  refusal  to  give  certificate:  Parlin  &  O.  Co. 
v.  Greenville.  61  C.  C.  A.  597,  127  Fed.  61,  holding  committee's  unreasonable 
refusal  to  approve  garbage  furnace  will  not  defeat  recovery;  Korbly  v.  Loomis, 
172  Ind.  3.55,  88  X.  E.  698,  holding  provision  6f  contract  making  certificate 
of  architect  or  engineer  condition  precedent  to  assertion  of  right  thereunder  is 


5  L.R.A.  270]  L.  R.  A.  CASES  AS  AUTHORITIES.  83O 

valid  and  claimant  of  such  right  must  show  by  proper  allegations,  perform- 
ance, waiver  or  valid  reason  for  noncompliance  with  conditions;  Boston  Store 
v.  Schleuter,  88  Ark.  223,  114  S.  W.  224,  holding  decision  of  architect  concern- 
ing manner  of  execution  of  work,  necessity  for  changes  in  method  of  propping; 
up  walls,  and  all  necessary  alterations,  binding  on  parties  to  contract;  Carnegie 
Public  Library  Asso.  v.  Harris,  43  Tex.  Civ.  App.  167,  97  S.  W.  520,  holding 
where  no  fraud,  or  gross  negligence  on  architect's  part,  final  certificate  of  archi- 
tect that  contractor  was  entitled  to  amount  sued  for,  entitled  him  to  recover; 
Kettler  Brass  Mfg.  Co.  v.  O'Neil,  57  Tex.  Civ.  App.  571,  122  S.  W.  900,  hold- 
ing that  decision  of  architect  is  conclusive  under  contract  binding  parties  by 
"fair  exercise  of  his  judgment." 

Cited  in  footnotes  to  Arnold  v.  Bournique,  20  L.  R.  A.  493,  which  holds  con- 
tractor entitled  to  payment  on  delivery  of  architect's  certificate  handed  back  with- 
out presentation  to  owner;  Spence  v.  Ham,  51  L.  R.  A.  238,  which  holds  building 
contract  not  substantially  performed  where  structural  defects  created  by  omission 
remediable  only  by  partial  reconstruction;  Deyo  v.  Hammond,  25  L.  R.  A.  710, 
which  holds  that  failure  to  test  speed  of  horses  within  time  fixed  will  not  relieve 
from  paying  extra  amount  if  other  proof  of  requisite  speed  given. 

Cited  in  note  (17  L.  R.  A.  211)  on  promise  to  give  full  satisfaction;  subject 
to  judgment  of  promisee. 

Distinguished  in  Florida  Athletic  Club  v.  Hope  Lumber  Co.  18  Tex.  Civ.  App. 
170,  44  S.  W.  10,  holding  jurisdiction  of  court  not  ousted  by  agreement  to 
arbitrate;  Eastham  Bros.  v.  Blanchette,  42  Tex.  Civ.  App.  209,  94  S.  W.  441,. 
holding  employer  of  architect,  by  provision  making  decision  of  architect  final 
on  all  questions  of  dispute  between  builder  and  owner  of  building  is  not  pre- 
sumed therefrom  to  intend  to  leave  to  final  decision  of  architect  question  of  ful- 
fillment of  architect's  contract;  Stewart  v.  Rutter,  48  Tex.  Civ.  App.  278,  107 
S.  W.  936,  holding  decision  of  architect  not  conclusive  when  not  so  provided  in 
contract  and  language  tends  to  show  absence  of  intention  to  make  him  final 
arbiter. 
Caring  defective  petition. 

Cited  in  Par! in  &  O.  Co.  v.  Hanson,  21  Tex.  Civ.  App.  402,  53  S.  W.  62,  holding 
allegations  in  answer  cured  omission  in  petition. 
Evidence  of  breach. 

Cited  in  Oriental  Hotel  Co.  v.  Griffiths,  88  Tex.  574,  30  L.  R.  A.  771,  53  Am. 
St.  Rep.  790,  33  S.  W.  652,  holding  evidence  to  show  work  not  according  to  con- 
tract inadmissible  in  absence  of  fraud  or  mistake. 
Measure    of    damages. 

Cited  in  notes   (6  L.  R.  A.  552 ;   11  L.  R.  A.  681)   on  measure  of  damages  for 
breach  of  contract. 
Time   as   essence   of  contract. 

Cited  in  footnote  to  Garrison  v.  Cooke,  61  L.  R.  A.  342,  which  holds  time  of 
essence  of  subscription  for  cost  of  railroad  in  consideration  of  running  of  trains 
by  specified  date. 
Building:    contracts. 

Cited  in  notes  (12  L.  R.  A.  502)  on  building  contract;  extra  work;  (8  L.  R.  A. 
207)  on  building  contracts:  (10  L.  R.  A.  829)  on  performance  of  building  con- 
tract within  given  time;  (9  L.  R.  A.  53)  on  "substantial  compliance"  with 
building  contract. 

5  L.  R.  A.  276,  BOOXE  v.  CLARK,  129  II!,  466,  21  N.  E.  850. 

Order  of  alienation ;   compelling  t»urt»ii>onnt    creditor    to    resort    to    other 
secnrity. 

Cited  in  Monarch  Coal  &  Min.  Co.  v  Hand,  197  111.  290,  64  N.  E.  381,  Affirm- 


831  L.  11.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  276 

ing  99  111.  App.  324  holding  rule  of  sale  of  lots  in  inverse  order  of  alienation  not 
applicable  when  conveyance  made  subject  to  mortgage. 

Cited  in  notes  in  39  L.R.A.  (X.S.)  361,  on  rule  as  to  inverse  order  of  alienation 
as  affected  by  assumption  of  mortgage;  39  L.R.A.  (N.S.)  1000,  on  right  of  junior 
to  compel  paramount  creditor  to  resort  primarily  to  property  of  third  person. 
When  cross-bill  necessary. 

Cited  in  Gardner  v.  Cohn/191  111.  558,  61  N.  E.  492,  holding  cross-bill  properly 
dismissed  where,  under  original  bill,  court  could  determine  priority  of  liens  and 
order  distribution  of  funds  accordingly;  Boone  v.  Colehour,  50  111.  App.  665, 
holding  cross-bill  by  subsequent  encumbrancer  unnecessary  to  enable  him  to 
claim  right  to  surplus;  Powell  v.  Starr,  100  111.  App.  107,  holding  junior  encum- 
brancer cannot  participate  in  proceeds  of  mortgage  sale  without  asking  for 
such  relief  by  cross-bill;  Dates  v.  Winstanley,  53  111.  App.  631,  holding  right  to 
have  lots  sold  in  inverse  order  of  alienation  must  be  asserted  by  cross-bill ; 
Boone  v.  Colehour,  165  111.  315,  46  N.  E.  253,  holding  filing  of  cross-bill  in 
foreclosure  proceedings  before  bar  of  note  secured,  which  is  dismissed,  does  not 
prevent  application  of  bar  of  laches  to  foreclosure  suit  begun  after  note  barred; 
Dunbar  v.  American  Teleph.  &  Teleg.  Co.  238  111.  489,  87  N.  E.  521,  hold- 
ing cross-bill  unnecessary  to  sustain  grant  of  affirmative  relief;  but  that  dis- 
missal of  cross-bill  is  not  adjudication  that  complainant  has  no  rights  in  subject 
matter  of  litigation. 
Effect  of  assumption  of  debt. 

Cited  in  Stites  v.  Thompson,  98  Wis.  331,  73  N.  W.  774,  holding  assumption  of 
mortgage  debt  by  purchaser  makes  him  principal  debtor. 

Cited  in  notes    (7  L.  R.  A.  34,  35)    on  personal  liability  for  debt  of  vendee 
assuming  encumbrance;    (8  L.  R.  A.  317)   on  mortgagor  conveying  premises  sub- 
ject to  mortgage  debt. 
Subrogation. 

Cited  in  footnote  to  Wyman  v.  Ft.  Dearborn  Nat.  Bank,  48  L.  R.  A.  565,  which 
holds  holder  of  check  drawn  by  bank  which  becomes  insolvent  before  presentation 
entitled  to  subrogation  to  collateral  held  by  drawee  bank,  which  applies  deposit 
on  own  claims  against  drawer. 

Cited  in  notes    (13  L.R.A.619)    on  doctrine  of  subrogation;    (68  L.R.A.  514) 
on  extinction  of  judgments  against  principals  by  sureties'  payment. 
Priority    of    liens. 

Cited  in  footnote  to  Gray  v.  H.  M.  Loud  &  Sons  Lumber  Co.  54  L.  R.  A.  731, 
which  denies  right  of  one  having  unrecorded  contract  for  part  of  tract  of  land, 
all  of  which  is  subsequently  mortgaged,  to  cast  burden  of  motrgage  on  subsequent 
purchasers  of  remainder. 
Rig-hts  of  niurtunu*-!'. 

Cited  in  note  (6  L.  R.  A.  612)   on  remedies  of  mortgagee  on  sale  of  mortgaged 
premises. 
Partnership   in    land   deals. 

Cited  in  MacDonald  v.  Dexter,  234  111.  522,  85  N.  E.  209,  holding  agreement 
to  share  in  profits  of  sale  of  land  does  not  create  trust  giving  interest  in  land. 

Cited  in  notes    (8   L.   R.   A.   657)    on   partnership  in  real  estate  speculation; 
(27   L.  R.   A.   456,  481)    as  to  what  real  estate  will  be  considered  partnership 
property. 
Condition   subsequent   or   precedent. 

Cited  in  Waggoner  v.  Wabash  R.  Co.  185  111.  159,  56  N.  E.  1050,  holding 
possession  of  railroad,  lawful  in  inception,  not  wrongful  because  of  failure  to  per- 
form condition  of  erecting  depot  on  land;  O'Donnell  v.  Robson,  239  111.  636,  88 


5  L.R.A.  276]  L.  R.  A.  CASES  AS  AUTHORITIES.  832 

X.  E.  175,  holding  rights  under  condition  subsequent  or  possibility  of  reverter 
can  be  availed  of  only  by  grantors  or  their  heirs,  such  right  is  unassignable  and 
does  not  pass  by  conveyance. 

Cited  in  notes    (60  L.R.A.  751)    on  transferability  of  right  of  entry  for  con- 
dition  broken;     (79   Am.   St.   Rep.   750,    769)    on   what   words   create   condition 
subsequent. 
Foreclosure  upon  separate  propertied. 

Cited  in  Nix  v.  Thackaberry,  240  111.  360,  88  X.  E.  811,  on  separate  decrees 
for  sale  of  different  properties  affected. 
Construction   of   deeds. 

Cited  in  South  Penn  Oil  Co.  v.  Knox,  68  W.  Va.  376,  69  S.  E.  1020   (dissenting 
opinion),  on  subsequent  clause  in  deed  summing  up  intention  of  parties  as  to 
what  shall  pass,  as  controlling. 
Description  In  deed. 

Cited  in  Decker  v.  Stansberry,  249  111.  493,  94  X.  E.  940..  Ann.  Cas.  1912A, 
227,  holding  that  deed  containing  two  descriptions  will  be  construed  most  favor- 
ably to  grantee;  Hornet  v.  Dumbeck,  39  Ind.  App.  495,  78  X.  E.  691,  holding 
particular  description  of  land  referred  to  as  being  all  of  certain  tract  not  before 
conveyed,  conveys  all  not  before  conveyed,  though  tract  be  larger  than  that 
covered  by  particular  description. 
Record  of  instrument. 

Cited  in  Lowden  v.  Wilson,  233  111.  349,  84  X.  E.  245,  holding  recording  of 
prior  deed  not  notice  to  prior  purchaser  who  has  recorded  his  deed. 

Cited  in  footnote  to  Gibson  v.  Thomas.  70  L.R.A.  768.  which  holds  unrecorded 
release  of  portion  of  property  covered  by  mortgage  by  holder  to  mortgagor  not 
binding  on  subsequent  assignee  of  mortgage  without  notice. 
Marshalling  assets  of  mortgagor. 

Cited  in  note   (18  Eng.  Rul.  Cas.  212)  on  marshalling  assets  of  mortgagor. 
Dedication   of  land   by  mortgagor. 

Cited  in  note  (31  L.R.A.  (X.S. )   1027)  on  dedication  of  land  by  mortgagor. 
Right  of  third  persons  to  take  advantage  of  champerty. 

Cited  in  note  (35  L.R.A. (X.S.)  513,  514)  on  right  of  third  persons  to  take 
advantage  of  champerty. 

5  L.  R.  A.  297,  KXOX  v.  ARMSTEAD,  87  Ala.  511,  13  Am.  St.  Rep.  65,  6  So.  311. 
Purchase  by  mortgagee  or  trustee. 

Cited  in  Gamble  v.  Caldwell,  98  Ala.  579,  12  So.  424,  holding  conveyance  to 
agent  of  mortgagee  on  foreclosure  of  mortgage  authorizing  mortgagee  to  pur- 
chase vests  title  in  him  as  trustee,  and  supports  action  of  ejectment  against 
mortgagor;  Pollard  v.  American  Freehold  Land  Mortg.  Co.  103  Ala.  298,  16 
So.  .801,  denying  right  of  mortgagee  at  sale  under  power  in  mortgage,  to  pur- 
chase, either  directly  or  indirectly:  Birmingham  Xat.  Bank  v.  Steele.  98  Ala. 
91,  12  So.  783,  holding  creditor  of  mortgagor  not  entitled  to  disaffirm  fore- 
closure sale  at  which  unauthorized  mortgagee  became  purchaser :  Etna  Coal  &  I. 
Co.  v.  Marting  Iron  &  Steel  Co.  61  C.  C.  A.  404,  127  Fed.  40.  sustaining  right  of 
trustees  of  corporate  mortgage  individually  to  purchase  at  own  sale  for  bond- 
holder's benefit;  Drake  v.  Rhodes,  155  Ala.  502,  130  Am.  St.  Rep.  62,  46  So.  769, 
holding  stipulation  in  mortgage  giving  mortgagee  privilege  of  becoming  pur- 
chaser is  valid. 

Cited  in  notes  (16  Am.  St.  Rep.  58;  92  Am.  St.  Rep.  580)  on  purchase  by 
mortgagee  at  sale  under  power. 


833  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  298 

Mortgagor's  right   to  Bet  aside. 

Cited  in  Alexander  v.  Hill,  88  Ala.  488,  16  Am.  St.  Rep.  55,  7  So.  238,  holding 
infant  heirs  of  mortgagor,  on  attaining  majority,  may  disaffirm  purchase  by 
mortgagee  without  power  on  foreclosure  sale  during  infancy;  American  Freehold 
Land  Mortg.  Co.  v.  Pollard,  120  Ala.  7,  24  So.  736,  holding  mortgagor's  only  right 
after  purchase  by  unauthorized  mortgagee  at  foreclosure  sale,  is  by  suit  in 
equity  to  disaffirm;  Mason  v.  American  Mortg.  Co.  124  Ala.  348,  26  So.  900, 
holding  lapse  of  four  years  after  foreclosure  sale  at  which  unauthorized  mortgagee 
became  purchaser  sufficient  laches  to  bar  suit  by  mortgagor  to  rescind. 
Mortgagee's  right  to  compel  election. 

Cited  in  American  Freehold  Land  Mortg.  Co.  v.  Sewell,  92  Ala.  169,  13  L.  R.  A. 
300,  9  So.  143,  holding  mortgagee  purchasing  on  foreclosure  entitled  to  bill  to 
compel  mortgagor  to  elect  to  ratify  or  disaffirm  sale,  where  mortgage  governed 
iby  local  law  though  mortgage  notes  usurious  at  place  of  payment. 
Ratification. 

Cited  in  Montgomery  v.  Crossthwait,  90  Ala.  572,  12  L.  R.  A.  144,  24  Am.  St. 
Rep.  832,  8  So.  498,  holding  that  waiver  of  protest  and  notice  by  indorser  after 
alteration  of  note  by  maker  ratifies  alteration. 
Right  of  redemption  as  inseparable  to  mortgage. 

Cited  in  note  (18  Eng.  Rul.  Cas.  365)  on  right  of  redemption  as  inseparable 
to  attempt  to  mortgage. 

5  L.  R.  A.  298,  GRAVES  v.  SMITH,  87  Ala.  450,  13  Am.  St.  Rep.  60,  6  So.  308. 
Party    wall. 

Cited  in  Huston  v.  De  Zeng.  78  Mo.  App.  531,  holding  parties,  each  owner  in 
severally  of  so  much  of  wall  as  stands  upon  his  land,  subject  to  cross  easement 
in  favor  of  neighbor;  Springer  v.  Darlington,  207  111.  244,  69  N.  E.  946,  holding 
that  party  wall  means  solid  wall. 

Cited  in  footnote  to  Burr  v.  Lamaster,  9  L.  R.  A.  637,  which  holds  party  wall 
and  agreement  to  pay  for  same  on  using  it,  an  encumbrance. 

Cited  in  note  (89  Am.  St.  Rep.  928,  930)   on  party  walls. 
Right  to  heighten. 

Cited  in  Tate  v.  Fratt,  112  Cal.  618,  44  Pac.  1061,  holding  party  wall  may  be 
heightened  by  joint  owner  where  no  injury  results  to  adjoining  building;  Bellenot 
v.  Laube,  104  Va.  847,  52  S.  E.  698,  holding  one  owner  may  carry  wall  up  to 
necessary  height  for  his  purposes,  and  action  will  not  lie  by  his  adjacent  owner 
to  compel  its  removal. 

Distinguished  in  Barry  v.  Edlavitch,  84  Md.  112,  33  L.  R.  A.  296,  35  Atl.  170, 
holding  prescriptive  right  to  use  wall  wholly  on  neighbor's  land  gives  no  right  to 
prevent  his  rebuilding  and  heightening  same,  with  windows  in  addition,  where 
no  injury  to  support. 
Right   to  insert   irindorrs  In. 

Cited  in  Fidelity  Lodge,  No.  59,  I.  O.  O.  F.  v.  Bond,  147  Ind.  442,  45  N.  E.  338, 
holding  that  windows  may  not  be  inserted  in  addition  to  party  wall  on  heighten- 
ing same,  though  flues  and  chimneys  may  be  built  in;  Weems  v.  Mayfield,  75  Miss. 
294,  22  So.  892,  enjoining  cutting  of  windows  in  party  wall  at  a  height  above 
complainant's  structure;  Everly  v.  Driskill,  24  Tex.  Civ.  App.  421,  58  S.  W. 
1046,  holding  convenience  to  defendant  and  absence  of  injury  to  complainant 
do  not  justify  opening  windows  in  party  wall ;  Dunscomb  v.  Randolph,  107  Tenn. 
101.  89  Am.  St.  Rep.  915,  64  S.  W.  21,  holding  party  permitting  neighbor  to  cut 
windows  in  party  wall  at  considerable  expense  estopped  to  interrupt  enjoyment  in 
.absence  of  evidence  of  damage  or  desire  to  use  wall;  Normille  v.  Gill,  159  Mass. 
L.R.A.  Au.  Vol.  1.— 53. 


5  L.R.A.  298]  L.  R.  A.  CASES  AS  AUTHORITIES.  834 

428,  38  Am.  St.  Rep.  441,  34  N.  E.  543,  denying  right  of  one  party  to  make  open- 
ings in  party  wall  for  windows;  Coggins  v.  Carey,  106  Md.  214,  10  L.R.A.  (X.S.) 
1197,  124  Am.  St.  Rep.  468,  66  Atl.  673,  holding  opening  of  windows  in  party 
wall  may  be  enjoined  and  mandatory  injunction  may  issue  requiring  spaces 
opened  to  be  closed;  Keifer  v.  Dickson,  41  Ind.  App.  549,  84  N.  E.  523,  holding 
presence  or  absence  of  windows  not  infallible  test  of  party  wall,  but  their  pres- 
ence good  indication  that  it  is  not  party  wall. 

Cited  in  footnote  to  Harber  v.  Evans,  10  L.  R.  A.  41,  which  authorizes  injunc- 
tion against  making  openings  in  party  wall. 

Cited  in  note   (10  L.R.A.  (N.S.)   1191)   on  right  to  open  windows,  or  apertures, 
in  party  wall. 
Other   incidents   of   ownership. 

Cited  in  Merchants  Bank  v.  Foster,  124  Ala.  698,  27  So.  515,  holding  joint 
owner  of  wall  not  liable  to  contribution  for  repairs  in  absence  of  contract: 
Lederer  v.  Colonial  Invest.  Co.  130  Iowa,  160,  106  N.  W.  357,  8  A.  &  E.  Ann. 
Cas.  317,  holding  statute  did  not  intend  adjoining  owners  should  own  wall  in 
common  and  be  thereby  entitled  to  extend  joists  or  timbers  into  wall  beyond 
its  center. 

Cited  in  footnotes  to  Putzell  v.  Drovers'  &  M.  Nat,  Bank,  22  L.  R.  A.  632, 
which  upholds  right  to  remove  boundary  wall  each  part  of  wyhich  is  owned  in 
several ty,  for  erection  of  better  one  at  expense  of  one  removing;  Mott  v.  Oppen- 
heimer,  17  L.  R.  A.  409,  which  construes  as  running  with  the  land  agreement  for 
party  wall  expressly  declared  to  run  with  land;  Clemens  v.  Speed,  19  L.  R.  A. 
240,  which  denies  to  party-wall  owners  reciprocal  easement  of  support  of  build- 
ings. 

5  L.  R.  A.  300,  NEW  HAVEN  WIRE  CO.  CASES,  57  Conn.  352,  18  Atl.  266. 
Conditional    sales. 

Cited  in  Mack  v.  Story,  57  Conn.  414,  18  Atl.  707,  holding  title  in  vendor  as 
against  attaching  creditor  of  vendee,  where  goods  purchased  under  agreement 
reserving  title  to  vendor  until  sale  by  vendee;  First  Nat.  Bank  v.  Alton,  60 
Conn.  407,  22  Atl.  1010,  holding  indorser  of  promissory  note  given,  on  its  face, 
in  pursuance  of  sale  reserving  title  to  vendor  until  payment,  liable  as  guarantor 
merely,  since  note  not  negotiable;  Faisst  v.  Waldo,  57  Ark.  274,  21  S.  W.  436, 
holding  vendor  of  oxen  under  contract  reserving  title  until  payment  by  services, 
valid  conditional  sale;  Triplett  v.  Mansur  &  T.  Implement  Co.  68  Ark.  234,  82 
Am.  St.  Rep.  284,  57  S.  W.  261,  holding  agreement  in  conditional  sale  reserving 
title  to  vendor,  that  vendee  should  sell  as  property  of  vendor,  valid  even  as 
against  innocent  purchaser  for  value;  Standard  Implement  Co.  v.  Parlin  &  0. 
Co.  51  Kan.  546,  33  Pac.  360,  holding  that  vendor  in  conditional  sale  may  recover 
possession  of  property  from  mortgagee  of  vendee,  whose  mortgage  secures  only 
prior  indebtedness;  National  Cash  Register  Co.  v.  Lesko,  77  Conn.  278,  58  Atl. 
967,  holding  conditional  sale  may  be  made  by  instrument  signed  by  vendee  only : 
Peasley  v.  Noble,  17  Idaho,  693,  27  L.R.A. (N.S.)  218,  134  Am.  St.  Rep.  270,  107 
Pac.  402,  holding  purchaser  from  conditional  vendee  under  contract  empowering 
such  vendee  to  sell  obtains  good  title;  Re  E.  W.  Newton  &  Co.  83  C.  C.  A.  23, 
153  Fed.  844,  holding  that  in  Arkansas  contract  of  conditional  sale  is  valid, 
though  containing  provision  that  vendee  may  sell  property  in  usual  course  of 
business. 

Cited  in  footnote  to  Feeley  v.  Boyd,  65  L.R.A.  943,  which  holds  immediate 
delivery  followed  by  actual  and  continued  change  of  possession  of  fruit  in  bins 
shown  by  purchaser  sending  representative  the  same  evening  to  take  possession, 
and  sending  man  the  next  morning  to  prepare  for  shipment. 


835  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  300 

Cited  in  notes  (12  L.  R.  A.  703)  on  conditional  sale;  (12  L.  R.  A.  447)  on  sale 
of  personal  property  on  instalment  plan;  (134  Am.  St.  Rep.  281)  as  to  when  a 
person  holding  property  under  conditional  sale  may  transfer  a  perfect  title;  (23 
Eng.  Rul.  Cas.  348)  on  presumption  as  to  passing  of  title  where  goods  are  not 
in  deliverable  state. 
Priorities  in  insolvents'  estates. 

Cited  in  Re  Waddell-Entz  Co.  67  Conn.  333,  35  Atl.  257,  holding  creditor  se- 
cured by  additional  obligations  of  debtor  entitled  to  share  in  insolvent  estate  only 
in  proportion  to  actual  claim ;  Re  E.  S.  Greeley  &  Co.  7t)  Conn.  498,  40  Atl.  233, 
holding  creditor  refusing  to  release  foreign  garnishment  not  equitably  entitled  to 
prior  claim  against  insolvent's  estate,  although  garnishee  subsequently  also 
insolvent. 
Attachments. 

Cited  in  Longstaff  v.  Hurd,  66  Conn.  360,  34  Atl.  91,  holding  attachments 
levied  after  appointment  of  receiver  invalid. 

Distinguished  in  Central  Trust  Co.  v.  Worcester  Cycle  Mfg.  Co.  114  Fed.  662, 
holding  attachment  not  dissolved  by  appointment  of  receiver  in  suit  to  foreclose 
mortgage. 
Mortg-ag-es. 

Cited  in  Re  Wilcox  &  H.  Co.  70  Conn.  232,  39  Atl.  163,  holding  chattel  mort- 
gage, not  recorded  until  after  receiver  takes  possession  of  debtor's  propertyt 
invalid  as  to  him;  Newtown  Sav.  Bank  v.  Lawrence,  71  Conn.  365,  41  Atl.  1054,. 
holding  real-estate  mortgage  unrecorded  for  two  years  prior  to  insolvency  cannot 
be  foreclosed  after  appointment  of  receiver. 
Receivers. 

Cited  in  Betts  v.  Connecticut  L.  Ins.  Co.  76  Conn.  377,  56  Atl.  617,  holding 
receiver,  for  certain  purposes,  represents  both  corporation  and  its  creditors  and 
may  enforce,  under  direction  of  court,  whatever  rights  it  or  they  have  against 
president  arising  out  of  subscription  for  stock  by  president. 

Cited  in  note  (6  L.  R.  A.  793)  on  receiver  as  officer  of  court. 
Potvers    of    majority    stock    owner. 

Cited  in  Chase  v.  Michigan  Teleph.  Co.  121  Mich.  634,  80  N.  W.  717,  denying 
power  of  corporation   owning  nearly  entire  stock  of  other  company  to  act  for 
latter  company  in  purchasing  its  property  and  franchises. 
I-ialiilities  of  stockholders. 

Cited  in  Barrows  v.  Natchaug  Silk  Co.  72  Conn.  665,  45  Atl.  951,  holding  stock- 
holder whose  subscription  obtained  by  fraud  of  which  he  is  presumptively  aware 
cannot  repudiate  liability  after  lapse  of  several  years,  on  insolvency  of  corpora- 
tion. 
Advances  to  finance  purchase  or  upon  bill  of  lading:. 

Cited  in  Re  Cattus,  106  C.  C.  A.  171,  183  Fed.  735,  to  the  point  that  banker 
who  advances  money  on  bills  of  lading  will  be  protected  as  having  title  to  goods 
covered  by  bill;  Mather  v.  Gordon,  77  Conn.  344,  59  Atl.  424,  holding  right  to 
exclusive  possession  of  potatoes  and  right  of  property  in  them  as  security  for 
money  advanced  obtained  by  discounting  draft  accompanied  by  bill  of  lading; 
Moors  v.  Drury,  186  Mass.  425,  71  N.  E.  810,  holding  banker  making  advances 
to  merchant  upon  goods  imported  by  latter,  and  retaining  title  is  owner  and 
not  mortgagee  or  pledgee;  Re  E.  Reboulin  Fils  &  Co.  165  Fed.  348,  holding 
banker  who  makes  advances  on  goods  imported  by  merchant  and  obtains  bills 
of  lading  which  he  afterwards  gives  to  merchant  taking  back  trust  receipt  allow- 
ing latter  to  sell  does  not  lose  title  to  goods. 


5  L.R.A.  300]  L.  R.  A.  CASES  AS  AUTHORITIES.  836 

Criticized    in   Charavay   v.   York   Silk   Mfg.    Co.    170   Fed.   822,   holding   bank 
which  advances  money   for   purchase  of  goods,   lets  purchaser   have   them  upon 
trust  receipt,   and  then  takes  goods  back   and   sells  them,   is  entitled  to  claim 
difference  between  amount  advanced  and  amount  realized  by  sale. 
Defective  formation  of  corporations. 

Cited  in  note  (33  Am.  St.  Rep.  186)  on  defective  formation  of  corporations. 
Recovery  of  property  obtained  by  fraud. 

Cited  in  note  (26  Am.  St.  Rep.  569)  on  recovery  of  property  obtained  by  fraud. 

5  L.  R.  A.  315,  COOTS  v.  DETROIT,  75  Mich.  628,  43  N.  W.  17. 
Duty  to  keep  streets  in  safe  condition. 

Cited  in  Kansas  City  v.  McDonald,  60  Kan.  489,  45  L.  R.  A.  432,  57  Pac.  123, 
holding  municipality  liable  for  injury  to  fireman  caused  by  unguarded  pile  of 
building  material  left  in  street  by  abutting  owner. 

Cited  in  notes   (103  Am.  St.  Rep.  275;   20  L.R.A.(N.S.)    748)    on  liability  of 
municipality  for  defects  or  obstructions  in  streets. 
Who  are   fellow   servants. 

Cited  in  Hanna  v.  Granger,  18  R.  I.  508,  28  Atl.  659,  holding  flagman  and 
engineer  of  steam  street  roller,  both  in  employ  of  city,  fellow  servants. 

Cited  in  notes  (5  L.  R.  A.  735)  on  who  are  fellow  servants;   (18  L.  R.  A.  794) 
on  what  constitutes  common  employment. 
Contribntory    negligence. 

Cited  in  Grand  v.  Michigan  C.  R.  Co.  83  Mich.  575,  11  L.  R.  A.  406,  47  N.  W. 
837  (dissenting  opinion),  majority  holding  brakeman  guilty  of  contributory 
negligence  in  attempting  to  perform  duties  at  switch  which  he  knew  was  not 
blocked  in  accordance  with  law. 

Cited  in  note   (11  L.  R.  A.  34)   on  care  required  of  traveler  on  highway. 
Provision    for    injured    fireman    as    exemption    of    mnncipality    from    lia- 
bility. 

Cited  in  Kansas  City  v.  McDonald,  60  Kan.  485,  45  L.  R,  A.  431,  57  Pac.  123, 
holding  municipal  liability  for  injury  caused  by  negligent  condition  of  street  not 
affected  by  fact  that  amount  of  insurance  policy  provided  by  city  was  collected 
by  insured. 
Effect  of  repeal  of  statute  on  cause  of  action. 

Cited  in  footnote  to  Tufts  v.  Tufts,  16  L.  R.  A.  482,  which  holds  cause  of  action 
for  divorce  not  taken  away  by  repeal  of  statute. 
Excessive    damages    on   appeal. 

Cited  in  Brockmiller  v.  Industrial  Works,  148  Mich.  649,  112  N.  W.  688, 
holding  whether  damages  found  by  jury  excessive  not  question  of  law  where 
there  was  evidence  upon  which  to  base  verdict  of  jury,  and  motion  for  new 
trial  on  ground  of  excessiveness  not  made. 

Cited  in  note  (26  L.  R.  A.  395)  on  power  of  appellate  court  to  interfere  with 
verdict  for  excessive  damages. 

Distinguished  in  McDonald  v.  Champion  Iron  &  Steel  Co.  140  Mich.  413,  103 
N.  W.  829,  holding  rule  that  question  whether  damages  found  by  jury  are  exces- 
sive is  not  one  of  law  is  inapplicable  where  parent  seeks  recovery  for  value  of 
services  of  son  and  can  recover  only  amount  of  his  prospective  earnings  until 
he  would  become  of  age,  less  what  it  would  cost  to  support  him. 
Existence  of  relation  of  master  and  servant. 

Cited  in  note  (22  Am.  St.  Rep.  478)  as  to  when  relation  of  master  and 
servant  exists. 


837  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  323 

5  L.  R.  A.  323,  FRAME  v.  FRAME,  32  W.  Va.  463,  9  S.  E.  901. 
PoNMeftgion   as   notice. 

Cited  in  Xorman  v.  Bennett,  32  W.  Va.  624,  9  S.  E.  914,  holding  purchaser  of 
property  in  possession  of  one  claiming  title  adverse  to  vendor  cannot  resist 
suit  for  specific  performance  against  such  vendor  by  heirs  of  possessor,  as  pur- 
chaser without  notice;  Urpman  v.  Lowther  Oil  Co.  53  W.  Va.  513,  97  Am.  St. 
Rep.  1027,  44  S.  E.  433,  holding  that  purchaser  of  equitable  interest  in  land  in 
third  person's  possession,  takes  what  title  vendor  has;  Nuttall  v.  McNey,  63 
W.  Va.  383,  60  S.  E.  251,  holding  actual  possession  under  title  bond  notice  of 
rights  of  persons  under  that  title  and  sufficient  to  put  one  on  inquiry  of  those 
in  possession  to  ascertain  all  their  rights;  Pippin  v.  Richards,  146  Wis.  74,  130 
N.  W.  872,  holding  that  continued  possession  by  grantor  after  conveyance  pro- 
cured by  fraud  in  constructive  notice  to  purchaser  from  fraudulent  vendee. 

Cited  in  notes  (15  L.R.A.  68)  on  nature  of  title  or  estate  of  holder  of  sheriff's 
certificate  before  obtaining  deed;  (13  L.R.A.(N.S.)  123;  104  Am.  St.  Rep.  332; 

II  Eng.  Rul.  Cas.  548)  on  possession  as  notice  of  title. 
Specific  performance  of  oral  contract. 

Cited  in  Goodwin  v.  Bartlett,  43  W.  Va.  335,  27  S.  E.  325,  refusing  relief  on 
oral  contract  to  devise  realty  where  promisee  never  in  possession,  though  services 
performed  thereon;  Young  v.  Crawford,  82  Ark.  45,  100  S.  W.  87,  holding  pos- 
session and  improvements  made  insufficient,  under  the  evidence,  to  give  right  to 
compel  performance  of  parol  gift;  Maas  v.  Anchor  F.  Ins.  Co.  148  Mich.  434, 

III  X.  W.  1044.  holding  parol  gift  of  land  followed  by  possession  and  improve- 
ments makes  donee  equitable  owner;  Re  Henderson,  142  Fed.  574,  holding  under 
West  Virginia  cases  reasonable  certainty  in  establishment  of  verbal  agreement 
does  not  mean  mathematical  certainty,  but  that  evidence  must  leave  court  satis- 
fied and  convinced  as  to  terms  of  agreement,  and  must  be  so  definite  as  to  guide 
court  safely  in  carrying  it  into  execution;  Henderson  v.  Henrie,  68  W.  Va.  565, 
34  L.R.A.(N.S.)    631,   71  S.  E.  172,  Ann.  Cas.  1912B,  318,  holding  that  verbal 
contract  to  sell  land  is  not  enforcible  unless  some  collateral  circumstance,  con- 
stituting an  independent  equity,  exists. 

Cited  in  footnotes  to  Kofka  v.  Rosicky,  25  L.  R,  A.  207,  which  upholds  right 
to  specific  performance  of  oral  contract  wholly  performed  by  one  party  and 
partly  by  other;  Russell  v.  Briggs,  53  L.  R.  A.  556,  which  holds  superintendence 
of  repairs  on  building,  etc.,  insufficient  to  take  out  of  statute  of  frauds,  oral 
agreement  to  convey  interest  in  land  to  be  received  in  exchange;  Graves  v.  Gold- 
thwait,  10  L.  R.  A.  763,  which  refuses  specific  performance  of  oral  agreement  by 
cotenant  to  convey  interest  in  land;  Hodges  v.  Rowing,  7  L.  R.  A.  87,  which 
holds  contract  enforceable  against  purchaser  though  not  signed  by  vendor;  Cof- 
fey  v.  Emigh,  10  L.  R.  A.  127,  which  holds  fair,  reasonable,  and  just  contract 
enforceable  when  both  parties  able  to  perform. 

Cited  in  note  (8  L.R.A.  (X.S.)  872)  on  possession  as  ground  for  specific  per- 
formance of  parol  gift  of,  or  contract  to  convey,  realty. 

Distinguished  in  Crim  v.  England,  46  W.  Va.  487,  76  Am.  St.  Rep.  826,  33  S. 
E.  310,  holding  donee  entitled  to  conveyance  of  legal  title  where,  in  reliance  on 
gift,  he  has  gone  into  possession,  erected  houses,  planted  orchard,  and  placed 
land  under  cultivation;  Miller  v.  Lorentz,  39  W.  Va.  172,  19  S.  E.  391,  holding 
vendee  under  specific  oral  contract  entitled  to  relief,  where  possession  complete 
and  continued,  and  vendor  insolvent;  Ansell  v.  Cox,  57  W.  Va.  569,  50  S.  E. 
806,  where  no  parol  contract  for  purchase  appeared. 
Kiuli  ts  of  possessor. 

Cited  in  Xuttall  v.  McVey,  63  W.  Va.  384,  66  S.  E.  251,  holding  possession 
under  title  bond  gives  right  to  enforce  performance  not  barred  by  time. 


5  L.R.A.  334}  L.  R.  A.  CASES  AS  AUTHORITIES.  838 

5  L.  R.  A.  334,  ALDERSOX  v.  KANAWHA  COUNTY,  32  W.  Va.  640,  25  Am. 

St.  Rep.  840,  9  S.  E.  868. 
Jurisdiction    in    election    cases. 

Cited  in  Brown  v.  Randolph  County  Court,  45  W.  Va.  834,  32  S.  E.  165,  holding 
that  equity  disclaims  jurisdiction  in  cases  of  contested  elections;  Weaver  v. 
Toney,  107  Ky.  435,  50  L.  R.  A.  109,  footnote  p.  105,  54  S.  W.  732,  holding  that 
court  of  equity  cannot  interfere  by  injunction  in  matters  relating  to  elections; 
Morgan  v.  County  Court,  53  W.  Va.  376,  44  S.  E.  182,  holding  that  mandamus  lies 
to  compel  court  to  declare  result  of  vote  on  county  seat  relocation. 

Cited  in  footnote  to  State  ex  rel.  McCaffery  v.  Aloe,  47  L.  R.  A.  393,  which 
denies  right  to  injunction  to  protect  purely  political  right  of  citizen  as  voter. 

Cited  in  note  (42  Am.  St.  Rep.  236)  on  jurisdiction  of  equity  over  elections. 
Jurisdiction  in  contempt  proceedings. 

Cited  in  McMillan  v.  Hickman,  35  W.  Va.  713,   14  S.  E.  227,  holding  order 
discharging  rule  for  contempt  not  reviewable  on  chancery  appeal;   State  ex  rel. 
Bettman  v.  Harness,  42  W.  Va.  415,  26  S.  E.  270,  holding  court  awarding  in- 
junction has   jurisdiction   of   contempt   proceeding   for   disobedience. 
Nature   of  contempt   proceeding's. 

Cited  in  State  v.  Cunningham,  33  W.  Va.  611,  11  S.  E.  76,  holding  contempt 
proceeding  criminal  in  its  nature,  entitling  respondent  to  presumption  of  inno- 
cence and  conformity  to  official  duty. 
Distinction  between  law  and  equity. 

Distinguished  in  State  v.  Blair,  63  W.  Va.  640,  60  S.  E.  795,  holding  judgment 
at  law  entered  in  book  for  chancery  proceedings  not  void. 

5  L.  R.  A.  340,  RIGGS  v.  PALMER,  115  N.  Y.  506,  12  Am.  St.  Rep.  819,  22  N. 

E.  188. 
Construction    of   statutes. 

Cited  in  Lynip  v.  Buckner,  22  Nev.  440.  30  L.  R.  A.  357,  41  Pac.  762;  Opinion 
of  the  Justices,  66  N.  H.  657,  33  Atl.  1076;  State  v.  Brown.  7  Wash.  13.  34  Pac. 
132;  Board  of  Education  v.  Brown,  12  Utah,  272,  42  Pac.  1109;  People  ex  rel. 
Gentilesco  v.  Excise  Board,  7  Misc.  417,  27  N.  Y.  Supp.  983;  People  ex  rel. 
Eakins  v.  Roosevelt,  12  Misc.  624,  24  N.  Y.  Supp.  228;  Allen  v.  Stevens.  22 
Misc.  175,  49  N.  Y.  Supp.  431;  Hurst  v.  New  York,  55  App.  Div.  73,  67  X.  Y. 
Supp.  84;  People  ex  rel.  Bagley  v.  Hamilton,  25  App.  Div.  430,  49  N.  Y.  Supp. 
605,  —  holding  thing  within  intention  of  law  makers  part  of  statute;  McDowall 
v.  Sheehan,  129  N.  Y.  207,  29  X.  E.  299,  holding  word  "creditors"  not  to  include 
directors  in  statute  providing  for  personal  liability  of  stockholders;  People 
ex  rel.  Huntington  v.  Crennan.  141  N.  Y.  244,  36  N.  E.  187,  holding  that  what- 
ever is  necessarily  implied  in  statute  is  part  thereof;  People  ex  rel.  Manhattan 
R.  Co.  v.  Barker,  152  X.  Y.  447,  46  N.  E.  875,  holding  decision  of  assessors  not 
finding  of  fact  within  meaning  of  restrictions  on  appeals;  People  ex  rel.  Onon- 
daga  County  Sav.  Bank  v.  Butler,  147  N.  Y.  169,  41  N.  E.  416,  holding  that 
law  makers'  intention  is  to  be  gathered  from  whole  statute,  and  sometimes  from 
statutes  in  para  materia ;  Kittredge  v.  Peekskill,  23  N.Y.  Supp.  801,  holding  that 
power  in  act  to  extend  limits  of  villages  incorporated  applied  to  those  incorpo- 
rated under  such  act;  Armstrong  v.  Combs,  15  App.  Div.  240.  44  X.  Y.  Supp. 
171,  holding  thing  within  letter  not  within  statute  if  contrary  to  its  intention; 
Welt-man  v.  Posenecker,  19  Misc.  593,  44  X.  Y.  Supp.  406,  holding  that  spirit 
of  law  is  above  mere  cavil  about  words:  Browning  v.  Collis,  21  Misc.  157.  47 
X.  Y.  Supp.  76,  holding  clear  intent  of  statute  should  be  given  effect,  although 
conveyed  in  imperfect  language:  Kc  McCutcheon,  25  Misc.  651,  56  X.  Y.  Supp. 
370,  holding  whole  law  must  be  examined  to  determine  whether  part  of  prior 


839  L.  R.  A.  CASES  AS  AUTHORITIES.  5  L.R.A.  340 

law  is  repealed  by  implication  by  new  section;  Re  Labrake,  29  Misc.  88,  60  X. 
Y.  Supp.  571,  holding  that  statutes  should  be  rationally  construed  so  as  to 
prevent  consummation  of  injustice;  Morgan  v.  Hedstrom,  164  X.  Y.  230,  58  X.  E. 
26,  holding  that  act  making  corporation  directors  personally  liable  for  corpo- 
ration's debts  for  defaults  should  be  liberally  construed  as  to  meaning  of  debts; 
Beley  v.  Naphtaly,  169  U.  S.  360,  42  L.  ed.  777,  18  Sup.  Ct.  Rep.  354,  constru- 
ing act  to  "quiet  titles"  through  grants  from  Mexican  government  not  to  re- 
quire proof  of  actual  grant;  Gabel  v.  Williams,  39  Misc.  495,  80  N.  Y.  Supp. 
489,  holding  service  of  written  notice  to  redeem  from  tax  sale  necessary  before 
ouster  of  occupant;  O'Shea  v.  Lehigh  Valley  R.  Co.  79  App.  Div.  256,  79  N.  Y. 
Supp.  890,  denying  right  of  father,  as  administrator,  to  recover  for  son's  death, 
to  which  farmer's  negligence  contributed;  Donahue  v.  Keeshan,  91  App.  Div. 
606,  87  N.  Y.  Supp.  144,  holding  word  "officer"  in  New  York  charter  does 
not  relate  to  policeman;  Rhinehart  v.  Redfield,  93  App.  Div.  414,  87  N.  Y. 
Supp.  789,  holding  ordinance  granting  right  to  lay  pipes  in  street  for  benefit  of 
limited  number  void;  Walden  v.  Jamestown,  178  N.  Y.  216,  70  N.  E.  466,  hold- 
ing service  of  notice  seventy-two  hours  after  accident  compliance  with  ordinance 
requiring  service  within  forty-eight  hours,  when  severe  pain  caused  delay;  State 
ex  rel.  Hay  v.  Hindson,  40  Mont.  356,  106  Pac.  362,  holding  intention  of  law 
makers  is  to  be  ascertained,  if  possible,  and  when  ascertains  controls;  Re  Avery, 
45  Misc.  535,  92  N.  Y.  Supp.  974,  holding  legislature  intended  to  prohibit  ap- 
pointment of  certain  classes  of  persons  as  executors  by  statute  providing  they 
were  incompetent  to  serve  as  such;  O'Reilly  v.  Brooklyn  Heights  R.  Co.  95  App. 
Div.  261,  89  N.  Y.  Supp.  41,  holding  burden  of  carrying  passengers  through  for 
one  fare  intended  to  go  with  statutory  privilege  of  railways  to  consolidate;  VVelk 
v.  Jackson  Architectural  Iron  \Yorks,  98  App.  Div.  252,  90  N.  Y.  Supp.  541 
(dissenting  opinion),  on  testing  statutes  enlarging  scope  of  common  law  by  con- 
sidering what  legislature  would  say  if  acquainted  with  situation  presented  by 
case  in  hand;  Dieterich  v.  Fargo,  119  App.  Div.  320,  104  N.  Y.  Supp.  334  (dis- 
senting opinion)  ;  People  ex  rel.  Erie  R.  Co.  v.  Railroad  Comrs.  105  App.  Div. 
276,  93  X.  Y.  Supp.  584, — on  rule  thing  within  letter  is  not  within  spirit  of 
statute  if  contrary  to  its  intention;  Wightman  v.  Catlin,  113  App.  Div.  29,  98 
N.  Y.  Supp.  1071,  holding  statute  prohibiting  attorneys  from  buying  claims  for 
purpose  of  suing  thereon  not  intended  to  deprive  attorneys  of  privileges  accorded 
other  men  in  purchase  of  claims;  Re  Evans,  113  App.  Div.  374,  98  N.  Y.  Supp. 
1042,  applying  test  of  asking  law  maker,  supposedly  present,  if  he  intended  to 
comprehend  given  case  and  holding  statute  requires  that  acts  sufficient  to  revoke 
will  be  actually  done,  not  merely  directed  to  be  done;  Re  Hertle,  120  App.  Div. 
723,  105  N.  Y.  Supp.  765  (dissenting  opinion),  on  ground  and  cause  of  making 
statute  as  explanatory  of  its  intent;  People  v.  Sturgis,  121  App.  Div.  408,  106 
X.  Y.  Supp.  61,  holding  provision  of  statute  not  within  spirit  of  enactment  is 
not  part  of  law  and  is  to  be  disregarded;  Re  Board  of  Rapid  Transit  R.  Comrs. 
128  App.  Div.  107,  112  N.  Y.  Supp.  619,  holding  thing  within  intention  of  statute 
is  within  statute,  though  exact  literal  construction  would  exclude  it;  People  ex 
rel.  Hunt  v.  Lane,  132  App.  Div.  408,  116  X.  Y.  Supp.  990,  holding  thing  within 
letter  of  statute  not  within  statute  unless  within  intention  of  makers;  Territory 
ex  rel.  Albuquerque  v.  Pinney,  15  X.  M.  633,  114  Pac.  367;  Hicks  v.  Krigbaum, 
13  Ariz.  241,  108  Pac.  482, — to  the  point  that  things  which  is  within  letter  of 
statute  is  not  with'n  statute  unless  it  be  within  intention  of  makers;  Moody 
v.  McKinney,  73  S.  C.  441,  53  S.  E.  543,  holding  that  horse  and  buggy  taken, 
without  owner's  knowledge,  to  transport  liquors  at  night  is  not  subject  to  con- 
fiscation. 

Annotation  cited  in  State  v.  Heffernan,  24  S.  D.  12,  25  L.R.A.  (X.S.)   887,  140 


5  L.R.A.  340]  L.  R.  A.  CASES  AS  AUTHORITIES.  840 

Am.  St.  Rep.  764,  123  N.  W.  87,  to  the  point  that  things  necessarily  implied  in 
statute  are  substantial  part  thereof. 

Cited  in  notes  (10  L.R.A.  841)   on  strict  construction  of  statutes  in  derogation 
of  common  law;    (30  Am.  St.  Rep.  265)    on  construction  of  statutes;    (30  Am. 
St.  Rep.  775)    on  meaning  of  word  "may"  in  statute;    (14  Eng.  Rul.  Cas.  833) 
on  rules  for  interpretation  of  statute. 
Wrongrdoer  profiting:  by  His  own  wrong;. 

Cited  in  Holmes  v.  Davenport,  27  Abb.  N.  C.  347,  18  N.  Y.  Supp.  56,  holding 
that  proceeds  of  life  insurance  policy  belong  to  partnership,  premiums  having 
been  paid  with  embezzled  partnership  funds;  Simcox's  Estate,  15  Pa.  Co.  Ct. 
388,  holding  that  widow,  party  to  lorgery  of  will,  cannot  object  to  payment  of 
counsel  fees  out  of  her  share  in  estate;  State  v.  Hope,  100  Mo.  359,  8  L.  R.  A. 
613,  13  S.  W.  490,  holding  constitutional,  statute  permifting  verdict  where  de- 
fendant is  wilfully  and  voluntarily  absent;  Hannig  v.  Mueller,  82  Wis.  242,  52 
N.  W.  98,  holding  it  doubtful  whether  equity  would  be  justified  in  confirming 
fraud  of  trustee  for  his  daughter's  benefit;  Clinton  County  v.  Davis,  64  L.  R.  A. 
780,  denying  vote  buyer's  right  to  reward  for  information  concerning  sale  of 
votes;  Staub  v.  Myers,  16  App.  Div.  479,  44  N.  Y.  Supp.  954  (dissenting  opin- 
ion), majority  holding  money  acquired  in  gambling  game  "not  wrongfully  taken 
and  detained"  within  law  authorizing  order  of  arrest  therefor;  Phillips  v.  Chase, 
203  Mass.  566,  30  L.R.A.(N.S.)  166,  89  N.  E.  1049,  17  A.  &  E.  Ann.  Cas.  544, 
holding  procurement  by  father  of  adoption  of  his  son  by  father's  wife,  in  order 
to  secure  his  wife's  property  for  his  son,  so  that  he  himself  might  profit  thereby 
sufficient  to  bring  case  within  doctrine  that  wrongdoer  cannot  profit  by  his  own 
wrong;  Murray  v.  Interurban  Street  R.  Co.  118  App.  Div.  37,  102  N.  Y.  Supp. 
1026,  holding  jury  could  not  consider  wages  paid  for  placing  bets  in  fixing 
amount  of  damages;  Ingraham  v.  Phillips,  133  App.  Div.  902,  117  N.  Y.  Supp. 
165  (dissenting  opinion),  on  rule  against  permitting  party  to  take  advantage 
of  his  own  wrong. 

Cited  in  footnotes  to  Wolf  v.  Youbert,  21  L.  R.  A.  772,  which  holds  firm  not 
prevented  from  recovering  debt  by  using  misleading  or  improper  firm  name; 
Hahn  v.  Bettingen,  50  L.  R.  A.  669,  which  denies  right  of  one  suing  for  breach 
of  promise  to  recover  for  loss  from  breaking  previous  engagement  to  other  man 
at  defendant's  request;  Clinton  County  Comrs.  v.  Davis,  64  L.R.A.  780,  which 
holds  that  a  vote  buyer  cannot  claim  the  reward  offered  by  statute  to  one  fur- 
nishing information  resulting  in  conviction  of  person  selling  vote. 

Cited  in  notes  ( 5  L.  R.  A.  693 )  on  estoppel ;  ( 25  L.  R.  A.  564 )  on  how  far  stat- 
utes will  be  regarded  as  having  abrogated  the  maxim  that  one  cannot  profit 
by  his  own  wrong. 

Distinguished  in  Lewin  v.  Lehigh  Valley  R.  Co.  52  App.  Div.  76,  65  N.  Y.  Supp. 
49,  holding  father,  although  guilty  of  contributory  negligence,  may  recover  for 
killing  of  his  child;  State  ex  rel.  Ketcham  v.  Terre  Haute  &  I.  R.  Co.  166  Ind. 
583,  77  N.  E.  1077,  holding  courts  will  not  hear  and  determine  charge  of  fraud 
and  corruption  to  annul  or  supply  legislative  action;  Roche  v.  Nason,  185  N. 
Y.  136,  77  N.  E.  1007,  Affirming  105  App.  Div.  267,  93  N.  Y.  Supp.  565,  holding 
principle  that  law  will  not  permit  person  to  acquire  property  as  result  of  his 
own  crime  inapplicable  to  case  of  one  actuated  by  intention  to  commit  suicide 
in  making  his  will. 

Disapproved  in  Collins  v.  Metropolitan  L.  Ins.  Co.  232  111.  42.  14  L.R.A.(N.S.) 
359,  122  Am.  St.  Rep.  54,  83  N.  E.  542,  13  A.  &  E.  Ann.  Cas.  129,  holding 
execution  of  assured  for  crime  no  defense  to  action  upon  life  insurance  policy, 
in  absence  of  stipulation  exempting  company  from  liability  for  death  from  this- 
cause. 


S41  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  340 

By  committing-  murder. 

Cited  in  Re  Fleming,  16  Misc.  444,  38  N.  Y.  Supp.  611,  holding  application 
for  remainderman  suspended  until  after  trial  for  murder  of  life  tenant;  Schmidt 
v.  Northern  Life  Asso.  112  Iowa,  45,  51  L.  R.  A.  144,  84  Am.  St.  Rep.  323,  83 
N.  W.  800,  holding  murder  of  assured  by  beneficiary  forfeits  right  of  recovery 
by  assignee  of  children  of  beneficiary  as  heirs;  Wellner  v.  Eckstein,  105  Minn. 
449,  117  N.  W.  830  (dissenting  opinion),  as  to  whether  murderer  can  inherit 
interest  in  property  of  person  he  kills;  Gollnik  v.  Mengel,  112  Minn.  352,  128 
N.  W.  292,  holding  that  under  statute  heir  may  inherit  even  though  death  of 
ancestor  was  caused  by  wilful  criminal  act  of  heir;  Perry  v.  Strawbridge,  209 
Mo.  633,  16  L.R.A.(N.S.)  248,  123  Am.  St.  Rep.  510,  108  S.  W.  641,  14  A.  &  E. 
Ann.  Gas.  92,  holding  husband  who  murders  his  wife  cannot  inherit  part  of 
her  estate;  Logan  v.  Whitley,  129  App.  Div.  670,  114  N.  Y.  Supp.  255,  holding 
representative  of  wife  entitled  to  recover  amount  given  wife  by  antenuptial  con- 
tract in  lieu  of  her  dower  and  distributive  share  of  personalty,  to  be  paid  upon 
husband's  death  if  she  survived,  where  husband  shot  wife  and  committed  suicide. 

Cited  in  footnotes  to  Holdom  v.  Ancient  Order  of  U.  W.  31  L.  R.  A.  67,  which 
holds  policy  not  forfeited  by  killing  of  insured  by  insane  beneficiary;  New  York 
L.  Ins.  Co.  v.  Davis,  44  L.  R.  A.  305,  which  holds  only  assignee's  interest  in 
policy  forfeited  by  his  murder  of  insured. 

Cited  in  notes  (3  L.R.A.  (N.S.)  729)  on  homicide  as  affecting  devolution  of 
property;  (34  L.R.A. (N.S.)  967)  on  murderer  of  testator  as  legatee. 

Distinguished  in  Ellerson  v.  Westcott,  148  N.  Y.  153,  42  N.  E.  540,  Revers- 
ing 88  Hun,  391,  34  N.  Y.  Supp.  813,  holding  will  not  invalidated  by  testator's 
murder  by  devisee;  McAllister  v.  Fair,  72  Kan.  537,  3  L.R.A. (NJ3.)  731,  115 
Am.  St.  Rep.  233,  84  Pac.  112,  7  A.  &  E.  Ann.  Cas.  973,  holding  husband  who 
murdered  his  wife  not  prevented  by  his  crime  from  inheriting  her  property; 
McKinnon  v.  Lundy,  21  Ont.  App.  Rep.  563,  holding  one  guilty  of  manslaughter 
not  prevented  from  taking  as  heir  or  devisee  of  person  killed. 

Distinguished  and  criticized  in  Lanier  v.  Box,  112  Tenn.  406,  64  L.R.A.  463, 
footnote  458,  79  S.  W.  1042,  holding  one  murdering  wife  deprived  of  common-law 
right  to  her  property. 

Disapproved  in  Shellenberger  v.  Ransom,  41  Neb.  637,  25  L.  R.  A.  571,  59 
N.  W.  935,  Reversing  on  rehearing  31  Neb.  69,  10  L.  R.  A.  812,  28  Am.  St.  Rep. 
500.  47  N.  W.  700,  holding  that  murderer  does  not  forfeit  inheritance  from 
murdered  daughter;  Carpenter's  Estate,  170  Pa.  210,  29  L.  R.  A.  149,  36  W.  N. 
C.  519,  50  Am.  St.  Rep.  765,  32  Atl.  637,  Affirming  1  Lack.  Legal  News  162, 
holding  son  not  deprived  of  right  of  inheritance  because  he  murders  his 
father  to  secure  it. 
Power  of  court  to  grant  final  relief. 

Cited  in  Mixsell  v.  New  York,  N.  H.  &  H.  R.  Co.  22  Misc.  82,  49  N.  Y.  Supp. 
413,  upholding  court's  power  to  dismiss  complaint  after  setting  aside  a  verdict. 
Right  to  maintain  partition. 

Cited  in  Drake  v.  Drake,  61  App.  Div.  9,  70  N.  Y.  Supp.  163,  holding  person 
-entitled  to  possession  as  tenant  in  common  may  maintain  partition  proceeding. 
Revocation    of    will. 

Cited  in  footnotes  to  Re  Hulett,  34  L.  R.  A.  384,  which  holds  will  not  re- 
voked by  marriage  alone;  Miles's  Appeal,  36  L.  R.  A.  176,  which  holds  erasure 
•of  specific  legacy  from  will  not  revocation  of  such  legacy;  Ingersoll  v.  Hopkins, 
40  L.  R.  A.  191,  which  holds  will  giving  testator's  property  to  woman,  made 
•executor,  revoked  by  testator's  subsequent  marriage  to  her;  Hudnall  v.  Ham,  4S 
Xu  R.  A.  557,  which  holds  widow  precluded  from  contesting  husband's  will 


5  L.R.A.  340]  L.  R.  A.  CASES  AS  AUTHORITIES.  842 

by  antenuptial  contract  agreeing  to  release  all  interest  in  his  estate;  Glascott 
v.  Bragg,  56  L.  R.  A.  258,  which  holds  will  in  favor  of  third  person  revoked  by 
marriage  and  adoption  of  child;  Billington  v.  Jones.  56  L.  R.  A.  654,  which 
holds  will  revoked  by  writing  on  it  statement  that  it  is  void,  and  that  it  is 
killed,  and  filing  it  away;  Re  Kelly,  56  L.  R.  A.  754,  which  holds  woman's 
will  not  revoked  by  subsequent  marriage;  Cutler  v.  Cutler,  57  L.  R.  A.  209, 
which  holds  will  revoked  by  adopting  mutilations  by  vermin;  Re  Teopfer,  67 
L.R.A.  315,  which  holds  antenuptial  will  revoked  by  testator's  marriage;  Re 
Xewlin,  68  L.R.A.  464,  which  holds  sufficient  provision  for  unborn  child  to  sus- 
tain will  made  by  establishing  remainder  to  be  divided  among  children  and  a 
fee  to  be  divided  among  or  held  in  trust  for  them  on  arriving  at  maturity. 

Cited  in  note  (7  L.  R.  A.  486)  on  revocation,  revival,  and  republication  of  will. 
Dae  process  of  law. 

Cited  in  Williams  v.  Port  Chester,  97  App.  Div.  100,  89  N.  Y.  Supp.  671,  hold- 
ing on  the  fundamental  principles  of  jurisprudence  as  an  element  of  ''due  process 
of  law/' 

5  L.  R.  A.  349,  HILL  v.  PORT  ROYAL  &  W.  C.  R.  CO.  31  S.  C.  393,  10  S.  E.  91. 

Action  against  county  in  Hill  v.  Laurens  County,  34  S.  C.  141,  13  S.  E.  318. 
Oh n  11  we  In  location,  of  highway. 

Cited  in  note  (26  L.  R.  A.  829)  on  discontinuance  or  vacation  of  highway  by 
acts  of  public  authorities. 
Proximate   cause   of   injury. 

Cited  in  Land  v.  Southern  R.  Co.  67  S.  C.  294,  45  S.  E.  203,  denying  recovery 
where  proof  shows  flagman  killed  by  train  other  than  one  alleged. 

Cited  in  footnote  to  McAnally  v.  Pennsylvania  R.  Co.  47  L.  R.  A.  788,  which 
denies  right  of  recovery  for  loss  of  leg  by  one  thrown  down  by  man  in  effort  to 
save  him  from  dangerous  position  near  track. 

Cited  in  notes  (6  L.  R.  A.  143)  on  imputing  negligence  of  one  person  to  an- 
other; (7  L.  R.  A.  132)  on  regarding  proximate  and  not  remote  cause  of  in- 
jury; (36  Am.  St.  Rep.  845)  on  proximate  and  remote  cause. 

5  L.  R.  A.  352,  STATE,  RILEY,  PROSECUTOR,  v.  TRENTON,  51  N.  J.  L.  498, 

18   Atl.    116. 
Power  of  municipality  to  punish  acts  also  state  offenses. 

Cited  in  note    (17  L.R.A.  (N.S.)   54)    on  power  of  municipality  to  punish  act 
also  an  offense  under  state  law. 
City    excise    departments. 

Cited  in  State,  Davis,  Prosecutor,  v.  Cherry,  53  N.  J.  L.  174,  20  Atl.  825. 
holding  excise  commissioners  without  power  to  provide  for  fee  to  city  clerk  or 
salaried  inspectors;  State  v.  Dudgeon,  83  Neb.  378,  119  N.  W.  676,  sustaining 
provision  in  charter  giving  rules  of  excise  board  when  duly  adopted  and  pub- 
lished, like  force  and  effect  as  ordinances  adopted  by  city  council. 
Legislative  delegation  of  power. 

Cited  in  Schwarz  v.  Dover,  70  N.  J.  L.  505,  57  Atl.  394,  holding  delegation 
of  power  not  authorized  by  statute  authorizing  common  council  to  determine 
in  its  discretion  whether  excise  board  ought  to  be  established. 

Cited    in    notes    (20    L.R.A.    724)     on    delegation    of    municipal    power    as    to 
license;     (11-1   Am.   St.    Rep.   299)    on   delegation   of   power   to  municipality   to 
regulate  dealing  in  intoxicating  liquors. 
Right    to   jury    trial. 

Cited  in  Loeb  v.  Jennings,  333  Ga.  805,  67  S.  E.  101,  holding  trial  of  person 


843  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  359 

by  recorder  without  jury  and  sentence  to  work  on  streets  or  other  public  works 
of  city  does  not  constitute  lack  of  due  process. 

Cited  in  footnote  to  Re  Kinsel,  56  L.  R.  A.  475,  which  denies  right  to  jury 
trial  in  prosecution  for  violating  city  ordinance. 

5  L.  R.  A.  353,  ABSECOM  MUTUAL  LOAN  &  BLDG.  ASSO.  v.  LEEDS,  50  N. 

J.  L.  399,  18  Atl.  82. 
Indorsement. 

Cited  in  Cadwallader  v.  Hirshfeld,  62  N.  J.  L.  749,  72  Am.  St.  Rep.  671,  42 
Atl.  1075,  holding  that  on  mere  indorsement  of  note  prior  to  that  of  payee,  no 
liability  to  payee  arises;  Lowry  v.  Tivy,  69  N.  J.  L.  96,  54  Atl.  521,  holding 
extrinsic  evidence  admissible  to  show  what  was  contract  of  parties  to  notes  of 
individual  partner  indorsed  in  firm  name;  Elliott  v.  Moreland,  69  N.  J.  L.  217, 
54  Atl.  224,  holding  irregular  indorsement  of  note  by  married  woman  before  its 
acceptance  by  payee  does  not  per  se  import  contract  by  her;  Lowry  v.  Tivy,  70 
N.  J.  L.  458,  57  Atl.  267,  holding  notes  made  before  new  Negotiable  Instruments 
Act  of  1902  governed  by  decision  in  cited  case. 

Cited  in  notes  (14  Am.  St.  Rep.  794)  on  indorsers  and  indorsements;  (72 
Am.  St.  Rep.  683)  on  effect  of  indorsement  by  stranger  before  delivery;  (4  Eng. 
Rul.  Cas.  551)  on  presumptive  order  of  liability  among  parties  to  bill  or  note. 

5  L.  R.  A.  357,  ARNOLD  v.  CARPENTER,  16  R.  I.  560,  18  Atl.  174. 
Resale  of   property. 

Distinguished  in  McKiernan  v.  Valleau,  23  R.  I.  506,  51  Atl.  102,  sustaining 
vendor's  right  to  resell  property  bought  at  auction,  after  vendee's  failure  to  com- 
plete contract. 

5  L.  R.  A.  359,  Re  GANNON,  16  R.  I.  537,  27  Am.  St.  Rep.  759,  18  Atl.  159. 
Due    process    of   law. 

Cited  in  Carr  v.  Brown,  20  R.  I.  219,  38  L.  R,  A.  296,  78  Am.  St.  Rep.  855,  38 
Atl.  9,  holding  statute  authorizing  administration  on  estate  of  person  not  heard 
from  in  seven  years,  void;  Modern  Loan  Co.  v.  Police  Ct.  12  Cal.  App.  592,  108 
Pac.  56,  holding  provisions  of  statute  authorizing  magistrate  to  adjudicate  right 
to  possession  of  personal  property  without  notice  to  person  from  whose  pos- 
session it  was  taken  or  who  claims  title  void. 

Cited  in  footnote  to  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  17  L.  R.  A.  286,  which  up- 
holds act  authorizing  attorneys'  fees  against  railroad  corporations  in  suits  on 
claims. 

Cited  in  notes  (11  L.  R.  A.  225;  13  L.  R.  A.  68)  on  what  constitutes  due  proc- 
ess of  law. 
Commitment    of    incompetent    persons. 

Cited  in  Re  Dowdell,  169  Mass.  389,  61  Am.  St.  Rep.  290,  47  N.  E.  1033,  up- 
holding statute  for  commitment  of  insane,  which  does  not  take  away  control  of 
property  or  right  to  determine  necessity  of  confinement;  Porter  v.  Ritch,  70 
Conn.  256,  39  L.  R.  A.  359,  39  Atl.  169,  sustaining  order  for  temporary  con- 
finement of  person  alleged  to  be  insane;  People  ex  rel.  Ordway  v.  St.  Saviour's 
Sanitarium,  34  App.  Div.  372,  56  N.  Y.  Supp.  431,  holding  ex  parte  final  com- 
mitment of  inebriate  woman  to  private  sanitarium,  invalid;  Re  Lambert,  134 
Cal.  634,  55  L.  R.  A.  860,  86  Am.  St.  Rep.  296,  66  Pac.  851,  holding  statute  for 
commitment,  without  notice,  of  person  alleged  to  be  insane,  void;  Ex  parte 
Scudamore,  55  Fla.  227,  46  So.  279,  holding  statutes  requiring  personal  presence 
of  subject  of  inquiry  as  to  sanity  provide  sufficient  notice;  Re  Allen,  82  Vt.  372, 
26  L.R.A.  (X.S.  i  238,  73  Atl.  1078,  holding  permanent  confinement  for  insanity 


5  L.R.A.  359]  L.  Px.  A.  CASES  AS  AUTHORITIES.  844 

lawful  only  when  in  pursuance  of  judgment  of  court  of  competent  jurisdiction 
after  alleged  insane  person  has  had  sufficient  notice  and  adequate  opportunity 
to  defend;  Ke  Boyett,  136  N.  C.  423,  67  L.R.A.  976,  103  Am.  St.  Rep.  944,  48 
S.  E.  789,  1  A.  &  E.  Ann.  Cas.  729,  holding  invalid  statute  providing  person 
acquitted  of  capital  felony  and  committed  to  hospital  cannot  be  released  except 
by  act  of  legislature;  People  ex  rel.  Peabody  v.  Chanler,  196  N.  Y.  525,  25 
L.R.A.  (N.S.)  950,  89  N.  E.  1109,  Affirming  on  opinions  below  133  App.  Div. 
164,  117  N.  Y.  Supp.  322,  which  holds  right  to  institute  judicial  proceedings 
under  statutes  sufficient  protection  of  liberty  of  insane  person  committed  to 
asylum  after  acquittal  of  crime  on  ground  of  insanity. 

Cited  in  note  (43  Am.  St.  Rep.  532,  540)  on  due  process  of  law  as  applied  to 
insane  persons. 

Distinguished  in  Re  Crosswell,  28  R.  I.  141,  66  Atl.  55,  13  A.  &  E.  Ann. 
Cas.  874,  sustaining  law  giving  power  to  confine  insane  person  on  commitment 
by  parent  guardian  or  relative  only  until  he  chooses  to  apply  to  court  for  relief. 

Disapproved  in  Re  Clark,  86  Kan.  553,  39  L.R.A. (N.S.)  686,  121  Pac.  492, 
holding  that  statute  relating  to  confinement  of  person  acquitted  of  crime  because 
insane,  is  not  unconstitutional. 

5  L.  R.  A.  361,  OLNEY  v.  CONANICUT  LAND  CO.  16  R.  I.  597,  27  Am.  St.  Rep. 

767,  18  Atl.  181. 
Preferences  by  corporations. 

Cited  in  Ingwersen  Bros.  v.  Edgecombe,  42  Neb.  744,  60  N.  W.  1032,  and 
Hays  v.  Citizens'  Bank,  51  Kan.  540,  33  Pac.  318,  holding  that  directors  must 
share  ratably  with  other  creditors  in  distribution  of  insolvent  corporation's 
assets;  Lyons-Thomas  Hardware  Co.  v.  Perry  Stove  Mfg.  Co.  86  Tex.  162,  22 
L.  R.  A.  815,  24  S.  W.  16,  holding  that  insolvent  corporation  cannot  prefer  cred- 
itors; Munson  v.  Genesee  Iron  &  Brass  Works,  37  App.  Div.  206,  56  N.  Y.  Supp. 
139,  holding  mortgage  by  corporation  in  contemplation  of  insolvency  assailable 
by  one  who  has  obtained  a  judgment  for  damages  by  tort;  Corey  v.  Wadsworth, 
99  Ala.  76,  23  L.  R.  A.  621,  42  Am.  St.  Rep.  29,  11  So.  350;  W.  P.  Noble  Mercan 
tile  Co.  v.  Mt.  Pleasant  Equitable  Co-op.  Inst.  12  Utah,  232,  42  Pac.  869;  Howe. 
B.  &  Co.  v.  Sanford  Fork  &  Tool  Co.  44  led.  233,  —  holding  mortgage  by  in- 
solvent corporation  to  secure  directors  on  liability  as  indorsers,  invalid  as  to 
general  creditors;  Taylor  v.  Mitchell,  80.  Minn.  496,  83  N.  W.  418,  holding  in- 
solvent corporation  directors  cannot  prefer  themselves  over  other  creditors ; 
Nappanee  Canning  Co.  v.  Reid,  M.  &  Co.  159  Ind.  634,  59  L.  R.  A.  205,  64  N.  E. 
1115  (dissenting  opinion),  majority  holding  insolvent  corporation  creditors 
may  prefer  their  own  unsecured  claims;  City  Nat.  Bank  v.  Goshen  Woolen  Mills 
Co.  35  Ind.  App.  577,  69  N.  E.  206,  holding  directors  or  officers  of  insolvent 
corporation  not  permitted  to  be  preferred  as  creditors,  or  to  prefer  themselves. 

Cited   in  notes    (45   Am.   St.  Rep.   835;    57   Am.  St.   Rep.   78)    on  preferences 
by  insolvent  corporations. 
Directors  as  trustees. 

Cited  in  Hutchison  v.  Rock  Hill  Real  Estate  &  Loan  Co.  65  S.  C.  64,  43  S. 
E.  295,  holding  that  directors  hold  assets  of  corporation  as  trustees  for 
stockholders. 

Cited  in  footnote  to  Stewart  v.  Harris,  66  L.R.A.  261,  which  holds  managing 
officers  of  corporation  not  only  trustees  of  corporate  entity  and  corporate  prop- 
erty but  also  to  some  extent  for  corporate  shareholders. 

Cited  in  notes  (36  L.  ed.  U.  S.  1079)  on  fiduciary  relations  of  officers  and 
their  dealings  with  corporate  property;  (7  Eng.  Rul.  Cas.  643)  on  directors 
as  trustees. 


845  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  367 

5  L.  R.  A.  364,  O'REILLY  v.  NEW  YORK  &  N.  E.  R.  CO.  16  R.  I.  389,  17  Atl. 

906. 
Pleading    statute    of   another    state;    necessity    for. 

Cited  in  Taylor  v.  Slater,  21  R.  I.  105,  41  Atl.  1001,  requiring  statutes  of  an- 
other state  to  be  pleaded;  McKnight  v.  Oregon  Short  Line  R.  Co.  33  Mont.  42, 
82  Pac.  661,  holding  statute  of  sister  state  must  be  pleaded  and  proved  as  fact 
by  party  relying  thereon;  Moore  v.  Pywell,  29  App.  D.  C.  317,  9  L.R.A. (N.S.) 
1078,  35  Wash.  L.  Rep.  225,  holding  that  courts  of  District  of  Columbia  will 
take  judicial  notice  of  Maryland  statute,  in  action  thereunder  for  wrongful 
death. 
Statutory  causes  of  action;  when  penal. 

Cited  in  Matheson  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  61  Kan.  670,  60  Pac. 
747,  holding  statute  providing  for  forfeiture  of  fixed  sum  for  negligently  caus- 
ing death,  penal;  Raisor  v.  Chicago  &  A.  R.  Co.  215  111.  55,  106  Am.  St.  Rep. 
153,  74  N.  E.  69,  2  A.  &  E.  Ann.  Cas.  802,  Affirming  117  111.  App.  488,  holding 
foreign  statute  providing  for  forfeiture  without  proof  of  damage  of  given  sum 
by  railroad  for  every  passenger  whose  death  was  caused  by  its  negligence,  penal 
and  not  enforceable. 

Cited  in  note  (19  Eng.  Rul.  Cas.  56)  on  liability  for  injury  due  to  neglect 
of  statutory  precautions. 

Distinguished  in  Gardner  v.  New  York  &  N.  E.  R.  Co.  17  R.  I.  792,  24 
Atl.  831,  holding  statute  giving  astion  for,  and  limiting  recovery  to,  loss  sus- 
tained by  negligence,  not  penal;  Aylsworth  v.  Curtis,  19  R.  I.  523,  33  L.  R.  A. 
112,  61  Am.  St.  Rep.  785,  34  Atl.  1109,  holding  action  for  twice  value  of  stolen 
article  not  restored,  not  penal. 
Snrvivability  of  action. 

Cited  in  footnote  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  survivable, 
action  for  negligently  driving  over  person. 

Cited  in  note  (5  L.R.A.(N.S.)   757)   on  law  governing  as  to  survival  of  cause 
of  action  or  revival  of  action  for  personal  injuries. 
Right  to  sue  in  other  state. 

Cited  in  Hancock  Nat.  Bank  v.  Farnum,  20  R.  I.  471,  40  Atl.  341,  holding  ac- 
tion to  enforce  stockholder's  liability  not  maintainable  in  other  state;  Connor 
v.  New  York,  N.  H.  &  H.  R.  Co.  28  R.  I.  562,  18  L.R,A.(N.S.)  1256,  68  Atl. 
481,  13  A.  &  E.  Ann.  Cas.  1033,  holding  where  foreign  statute  creates  cause 
of  action  for  death  by  wrongful  act  similar  to  that  given  by  domestic  statute 
action  is  maintainable  in  domestic  jurisdiction. 

Cited  in  notes  (15  L.  R.  A.  584)  on  rights  of  action  for  causing  death  ac- 
cruing under  foreign  statute;  (56  L.  R.  A.  210,  222)  on  conflict  of  laws  as  to 
action  for  death  for  bodily  injury;  (1  Eng.  Rul.  Cas.  545)  on  right  of  action 
in  favor  of  subject  for  cause  arising  in  other  country  notwithstanding  alleged 
proceedings  in  such  country. 
Plea  in  abatement. 

Cited  in  Providence  v.  McDonough,  24  R.  I.  499,  53  Atl.  866,  as  a  proper  case 
for  sustaining  a  plea  in  abatement. 

5  L.R.A.  367,  LEHIGH  AYE.  R.  CO.'S  APPEAL,  129  Pa.  405,  18  Atl.  498. 

Followed  without  discussion  in  129  Pa.  421,  18  Atl.  414. 
Limitation    of   corporate    Indebtedness. 

Cited  in  Morimura,  A.  &  Co.  v.  Traeger,  8  Northampton  Co.  Rep.  6,  holding 
excess  of  indebtedness  over  capital  stock,  rendering  director  liable,  does  not  em- 


5  L.R.A.  367]  L.  R.  A.  CASES  AS  AUTHORITIES.  846 

brace  actions  arising  ex  delicto;  Morimura,  A.  &  Co.  v.  Tracger,  31  Pa.  Dist. 
R.  381,  holding  limitation  of  indebtedness  to  amount  of  capital  stock  paid  in 
applies  only  to  fund  designated  in  corporate  charter,  contributed  by  stockholders 
for  prosecution  of  business  of  company. 

Cited  in  note    (111  Am.  St.  Rep.   329)    on  implied  power  of  corporations  to 
borrow  money  and  give  evidence  of  indebtedness  and  security  therefor. 
What  Is  actual  capital  stock. 

Cited  in  Stemple  v.  Bruin,  57  Fla.  179,  49  So.  151,  holding  that  actual  capital 
stock  of  corporation  is  amount  of  its  authorized  capital  that  has  been  subscribed 
for  and  paid  in. 
Par  value  of  stock. 

Distinguished  in  Smith  v.  State,  99  Miss.  875,  35  L.R.A.(N.S.)  792,  56  So. 
179,  holding  that  par  value  of  stock  means  face  value  plus  amount  of  accrued 
interest. 

5  L.  R.  A.  370,  BELL  v.  WILSON,  52  Ark.   171,  12  S.  W.  328. 
Fraudulent     deed. 

Cited  in  Doster  v.  Manistee  Nat.  Bank,  67  Ark.  328,  48  L.  R.  A.  335,  77 
Am.  St.  Rep.  116,  55  S.  W.  137,  to  point  that  fraudulent  deed  is  good  inter 
partes;  Parrott  v.  Crawford,  5  Ind.  Terr.  112,  82  S.  W.  688,  holding  transfer, 
though  fraudulent,  divests  grantor  of  all  right,  title  or  interest  he  may  have  in 
the  property. 

Cited  in  note  (67  L.R.A.  889)  on  effect  on  legal  title  of  conveyance  of  land 
in  fraud  of  creditors. 

5  L.  R.  A.  371,  ARBENZ  v.  WHEELING  &  H.  R.  CO.  33  W.  Va.  1,  10  S.  E.  14. 
Easement  in  street. 

Cited  in  Yates  v.  West  Grafton,  34  W.  Va.  787,  12  S.  E.  1075,  holding  author- 
ized use  of  street  by  railroad  not  an  abandonment  or  perversion  of  the  ease- 
ment; Hardman  v.  Cabot,  60  W.  Va.  667,  7  L.R,A.(N.S.)  510,  55  S.  E.  756,  9 
Ann.  Cas.  1030,  holding  additional  burden  not  imposed  on  highway  by  use 
thereof  for  pipe  line. 

Cited  in  note   (36  L.R.A.  (N.S.)    684)    on  abutter's  right  to  compensation  for 
railroads  in  streets. 
Taking:   fee. 

Cited  in  Watson  v.  Fairmont  &  Suburban  R.  Co.  49  W.  Va.  539,  39  S.  E.  193, 
holding    authorized    construction    of    railroad    in    street    not    a    taking    of    ad- 
joining owner's  fee. 
Power  of  municipal   corporation. 

Cited  in  Clarksburg  Electric  Light  Co.  v.  Clarksburg,  47  W.  Va.  743,  50  L. 
R.  A.  148,  35  S.  E.  994,  holding  municipal  corporation  has  no  power  to  grant 
an  exclusive  franchise  to  an  electric  light  company. 

Cited  in  footnote  to  Chicago  G.  W.  R.  Co.  v.  First  M.  E.  Church,  50  L.  R.  A. 
488,  which  holds  water  tank  in  street  and  station  at  which  bells  constantly 
rung  and  whistles  blown  within  few  rods  of  church,  a  nuisance. 

Cited  in  notes   (9  L.  R.  A.  101)    on  grant  of  franchise  to  street  railroads;    (8 
L.  R.  A.  453)   on  right  of  street  railway  to  construct  and  operate  its  line. 
Statutory   construction. 

Cited  in  O'Donnell  v.  Preston,  74  App.  Div.  87,  77  N.  Y.  Supp.  305,  holding 
word  "along"  in  prohibition  against  constructing  sidepath  "upon  or  along"  any 
sidewalk  indicates  superimposition,  and  does  not  mean  "alongside  of." 


847  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  378 

Injunctlve   relief. 

Cited  in  Ohio  River  R.  Co.  v.  Gibbens,  35  W.  Va.  59,  12  S.  E.  1093,  and  Ward 
v.  Ohio  River  R.  Co.  35  W.  Va.  485,  14  S.  E.  142,  holding  owner  cannot  enjoin 
railroad  construction  unless  value  of  his  property  totally  destroyed;  Watson  v. 
Fairmont  &  Suburban  R.  Co.  49  W.  Va.  540,  39  S.  E.  193,  holding  authorized 
railroad  cannot  be  enjoined  as  a  public  nuisance  and  special  injury;  Edwards  v. 
Thrash,  26  Okla.  479,  138  Am.  St.  Rep.  975,  109  Pac.  832,  holding  that  injunc- 
tion does  not  lie  to  prevent  municipality  from  paving  dedicated  street,  until 
abutting  owner  has  been  paid  for  damages  caused  by  change  of  grade;  Uhl  v. 
Ohio  River  R.  Co.  56  W.  Va.  503,  68  L.R.A.  143,  107  Am.  St.  Rep.  968,"  49  S. 
E.  378,  3  A.  &  E.  Ann.  Cas.  201,  on  absence  of  power  of  court  to  enjoin  or  control 
construction  of  work  of  internal  improvement  authorized  by  law;  Clayton  v. 
County  Co.  58  W.  Va.  262,  2  L.R.A.(N.S.)  602,  52  S.  E.  103,  holding  "semble 
that  injunction  to  prevent  establishment  of  public  road  is  not  supported  by 
private  easement  in  alley  whereon  road  is  located;  Wheeling  &  E.  G.  R.  Co.  v. 
Triadelphia,  58  W.  Va.  502,  4  L.R.A.(N.S.)  330,  52  S.  E.  499,  holding  though 
citizen  have  special  interest  in  sense  of  being  damaged  by  exercise  of  power  to 
establish  roads,  if  property  is  not  actually  taken,  but  only  injured,  he  has  no 
power  to  interfere  and  must  resort  to  action  at  law  for  damages;  Hardman  v. 
Cabot,  60  W.  Va.  667,  7  L.R.A.(N.S.)  510,  55  S.  E.  756,  9  A.  &  E.  Ann.  Cas. 
1030,  holding  injunction  will  not  lie  for  rightful  occupation  of  road  unless  in- 
jury amounts  to  virtual  taking;  Jackson  v.  Big  Sandy  &  C.  R.  Co.  63  W.  Va. 
22,  129  Am.  St.  Rep.  955,  59  S.  E.  749,  holding  subjection  of  private  property 
to  uses  and  purposes  of  common  carrier  amounts  to  taking  thereof  within 
meaning  of  constitution,  for  prevention  of  which  equity  interposes  by  injunction. 

Cited  in  note  (28  L.R.A.  (X.S. )  1083)  on  preventive  remedy  of  nonconsenting 
abutting  owner  where  use  of  highway  for  street  railway  authorized  by  public. 
Effect  of  legislative  authority  on  liability  for  nuisance. 

Cited  in  note  (1  L.R.A.  (N.S.)  94,  132)  on  effect  of  legislative  authority  upon 
liability  for  private  nuisance. 

5  L.  R.  A.  378,  ROUSE  v.  MERCHANTS'  NAT.  BANK,  46  Ohio  St.  493,  15  Am. 
St.  Rep.  644,  22  N.  E.  293. 

Followed  without  discussion  in  Sayler  v.  Simpson,  46  Ohio  St.  510,  24  N.  E. 
596. 
Preference  by  insolvent 

Cited  in  Farmers'  Nat.  Bank  v.  Miller,  9  Ohio  C.  C.  113,  holding  mortgage  by 
insolvent  debtor  to  wife  inures  to  benefit  of  all  creditors. 
By   insolvent   corporation. 

Cited  in  Meisse  v.  Loren,  4  Ohio  N.  P.  104,  to  point  that  corporation  cannot 
prefer  creditors;  Re  Home  Mut.  Aid  Asso.  3  Ohio  N.  P.  150,  holding  that  in- 
solvent association  cannot  prefer  matured  certificate  holders;  Benedict  v.  Mar- 
ket Xat.  Bank,  4  Ohio  N.  P.  233,  holding  that  corporation  cannot  give  creditor 
a  secret  inchoate  preference;  Thompson  v.  Huron  Lumber  Co.  4  Wash.  605,  30 
Pac.  741,  holding  that  the  directors  of  an  insolvent  corporation  cannot  create 
a  voluntary  preference;  Commercial  Nat.  Bank  v.  Burch,  40  111.  App.  515, 
holding  directors  of  insolvent  corporation,  trustees  of  its  funds  which  they 
may  not  give  away  or  appropriate:  Biddle  Purchasing  Co.  v.  Port  Townsend  Steel 
Wire  &  Nail  Co.  16  Wash.  693,  48  Pac.  407,  holding  insolvent  corporation  can- 
not prefer  a  creditor  by  mortgage  executed  for  security  for  antecedent  debt: 
Benedict  v.  Market  Nat.  Bank,  19  Ohio  C.  C.  410.  10  Ohio  C.  D.  506,  holding 
invalid  judgment  note  given  by  corporation  for  purpose  of  creating  preference 
in  case  of  insolvency. 


5  L.R.A.  378]  L.  PL  A.  CA*ES  AS  AUTHORITIES.  848 

Cited  in  notes  (45  Am.  St.  Rep.  826;  57  Am.  St.  Rep.  77;  22  L.R.A.  804)  on 
preferences  by  insolvent  corporations. 

Distinguished  in  Damarin  v.  Huron  Iron  Co.  47  Ohio  St.  589,  26  X.  E.  37. 
upholding  mortgage  executed  by  insolvent  corporation  to  obtain  extension  of 
credit:  First  Nat.  Bank  v.  McKinney,  16  Ohio  C.  C.  84,  holding  insolvent  for- 
eign corporation  may  give  judgment  note  to  be  enforced  in  foreign  state,  and 
assign  accounts  to  resident  creditor;  Re  George  D.  Winchell  Mfg.  Co.  1  Ohio 
X.  P.  138,  holding  judgment  taken  just  before  assignment  on  cognovit  note  giv- 
en nearly  two  months  before  by  corporation  valid;  Ford  v.  Lamson,  17  Ohio 
C.  C.  o43,  upholding  payment  by  insolvent  corporation  transacting  business. 
in  absence  of  collusion  or  knowledge  by  creditor;  Adams  &  W.  Co.  v.  Deyette,  8 
S.  D.  142,  31  L.  R-  A.  506,  59  Am.  St.  Rep.  751.  65  X.  W.  471  (dissenting  opin- 
ion), majority  holding  insolvent  corporation  without  right  to  prefer  creditors: 
Carter  Cattle  Co.  v.  McGillin,  21  Ohio  C.  C.  213,  11  Ohio  C.  D.  415,  Affirming 
7  X.  P.  584,  10  Low  D.  163,  holding  that  where  Ohio  corporation  carries  on  its 
entire  business  in  another  state,  the  question  of  giving  references  in  case  of 
insolvency,  is  governed  by  the  laws  of  such  state. 

Questioned  in  Gould  v.  Little  Rock,  M.  R.  &  T.  R,  Co.  52  Fed.  684,  and  Weyeth 
Hardware  &  Mfg.  Co.  v.  James- Spencer-Bateman  Co.  15  Utah,  132,  47  Pac.  604r 
holding  insolvent  corporation  may,  in  absence  of  statute,  prefer  creditors. 

Disapproved  in  Warren  v.  First  Nat.  Bank,  149  m.  28,  25  L.  R,  A.  752.  38 
X.  E.  122,  holding  mere  insolvency  does  not  deprive  directors  of  right  to  dispose 
of  corporate  property  in  good  faith,  though  preference  to  creditors  results. 
Of  officer  or  director. 

Cited  in  W.  P.  Noble  Mercantile  Co.  v.  Mt.  Pleasant  Equitable  Co-op.  Inst. 
12  Utah,  232,  42  Pac.  869,  holding  directors  of  insolvent  corporation  cannot 
prefer  themselves  over  other  creditors;  Howe.  B.  &  Co.  v.  Sanford  Fork  &  Tool 
Co.  44  Fed.  233,  holding  public  policy  forbids  directors  of  insolvent  corporation 
from  securing  preferences;  Ingwersen  Bros.  v.  Edgecombe,  42  Xeb.  744,  60  N. 
W.  1032,  holding  directors  and  officers  of  an  insolvent  private  corporation  can- 
not secure  preference;  James  Clark  Co.  v.  Colton,  91  Md.  214,  49  L.  R,  A.  705, 
46  Atl.  386,  holding  insolvent  bank  cannot  pay  a  debt  to  an  officer  or  director 
in  preference  to  debts  due  to  others;  Goodyear  Rubber  Co.  v.  George  D.  Scott 
Co.  96  Ala.  442,  11  So.  370,  holding  director  of  insolvent  corporation  cannot 
prefer  an  indebtedness  on  which  he  is  also  liable;  Tobin  Canning  Co.  v.  Fraser, 
81  Tex.  413,  17  S.  W.  25,  holding  director  of  insolvent  corporation  cannot  pur- 
chase its  property  for  less  than  its  value;  City  Xat.  Bank  v.  Goshen  Woolen 
Mills  Co.  35  Ind.  App.  577,  69  X.  E.  206.  holding  directors  or  officers  of  insol- 
vent corporation  not  permitted  to  be  preferred  as  creditors  or  to  prefer  them- 
selves. 

Cited  in  footnotes  to  Olney  v.  Conanicut  Land  Co.  5  L.  R.  A.  361,  which  holds 
directors  cannot  prefer  debts  due  to  themselves;  Hill  v.  Pioneer  Lumber  Co.  21 
L.  R.  A.  560,  which  denies  right  of  director  to  obtain  preference;  Corey  v.  Wads- 
worth,  44  L.  R.  A.  782,  which  holds  insolvent  corporation  may  prefer  creditor, 
although  a  stockholder,  director  or  officer. 
While  going  concern. 

Applied  in  Smith  Middlings  Purifier  Co.  v.  McGroarty,  136  U.  S.  241.  34  L. 
ed.  348,  10  Sup.  Ct.  Rep.  1017,  holding  insolvent  trading  corporation  which  has 
ceased  to  do  business  cannot  by  mortgage  prefer  creditors. 

Cited  in  Remington  v.  Central  Press  Asso.  Co.  3  Ohio  X.  P.  260.  holding  insolv- 
ent corporation  cannot  prefer  creditors  by  mortgage,  although  transacting 
business;  Coler  v.  Allen,  52  C.  C.  A.  392.  114  Fed.  612,  holding  insolvent  corpora- 
tion may.  in  good  faith,  while  a  going  concern,  execute  mortgage  to  secure  exten- 


849  L.  R,  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  378 

sion  and  further  advance;  Lyons-Thomas  Hardware  Co.  v.  Perry  Stove  Mfg.  Co. 
86  Tex.  160,  22  L.  R.  A.  814,  24  S.  W.  16,  holding  insolvent  corporation,  no 
longer  carrying  on  business,  without  implied  power  to  give  preferences;  Ford 
v.  Lamson,  17  Ohio  C.  C.  544,  upholding  levy  on  property  of  insolvent  corpora- 
tion transacting  business,  in  absence  of  collusion. 
—  In  transfer  by  foreigrn  corporation. 

Cited  in  Bryant  v.  Johnson,  12  Ohio  C.  C.  103,  holding  transfer  of  property 
in  state  by  insolvent  foreign  corporation  to  foreign  creditor  voidable,  but  not 
void;  Nathan  v.  Lee,  152  Ind.  238,  43  L.  R,  A.  824.  52  N.  E.  987,  holding  deci- 
sion will  not  be  followed  in  Indiana  to  invalidate  preferential  mortgage  upon 
land  in  Indiana  executed  by  insolvent  Ohio  corporation  to  Ohio  creditors;  First 
Nat.  Bank  v.  McKinney,  16  Ohio  C.  C.  84,  in  which  petition  to  have  transfer 
by  insolvent  foreign  corporation  declared  void  considered  as  equitable  action 
based  on  main  case;  Hall  v.  Ohio  &  W.  Coal  &  I.  Co.  24  Ohio  L.  J.  310,  11  Ohio 
Dec.  Reprint,  72,  holding  that  corporation  chartered  in  another  state  may  make 
deed  of  assignment  for  benefit  of  all  its  creditors  which  will  pass  title  to  real 
property  in  Ohio. 

Cited  tn  note   (17  L.  R,  A.  85)  on  conflict  of  laws  as  to  assignments  to  cred- 
itors. 
— —  AM  ground  of  attachment. 

Cited  in  Stone  v.  Lorain  Sav.  &  Bkg.  Co.  8  Ohio  C.  C.  639,  holding  wrongful 
preference  by  corporation  of  one  creditor  not  ground  for  attachment  by  another. 
Trust  fund  theory. 

Cited  in  Brown,  B.  &  Co.  v.  Lake  Superior  Iron  Co.  134  U.  S.  534,  33  L.  ed. 
1024,  10  Sup.  Ct.  Rep.  604,  in  support  of  contention  that  property  of  insolvent 
corporation  is  trust  fund  which  a  court  of  equity  should  interfere  to  preserve; 
Cheney  v.  Maumee  Cycle  Co.  20  Ohio  C.  C.  22,  holding  property  of  insolvent  cor- 
poration trust  fund  for  creditors;  Meisse  v.  Loren,  4  Ohio  N.  P.  101,  holding  cap- 
ital stock  of  corporation  trust  fund  for  creditors;  Philips  v.  Ammon-Stevens  Co. 
2  Ohio  X.  P.  189,  holding  property  of  insolvent  corporation  trust  fund,  and 
preferential  transfer  void;  Conover  v.  Hull,  10  Wash.  684,  45  Am.  St.  Rep. 
810,  39  Pac.  166.  holding  stock  and  property  of  insolvent  corporation  a  trust 
fund  which  it  cannot  divert  by  preferring  creditors;  Cincinnati  Equipment  Co. 
v.  Degnan,  107  C.  C.  A.  158,  184  Fed.  843,  holding  that  where  receiver  of  cor- 
poration is  appointed  in  creditor's  suit,  he  holds  the  property  in  trust  for 
creditors:  Everhardt  v.  United  States  Invest.  &  Redemption  Co.  8  Ohio  N.  P. 
530.  11  Ohio  S.  &  C.  P.  Dec.  697,  on  insolvent  corporation  which  has  quit  doing 
business,  as  holding  its  property  in  trust  for  the  creditors. 

Cited  in  note   (42  Am.  St.  Rep.  767)   on  corporate  assets  as  a  trust  fund. 

Distinguished  in  Alberger  v.  National  Bank,  123  Mo.  324,  27  S.  W.  657,  hold- 
ing that  insolvency  alone  does  not  impress  upon  corporate  property  a  trust  for 
creditors  generally. 

Disapproved  in  John  V.  Farwell  Co.  v.  Sweetzer,  10  Colo.  App.  424,  51  Pac. 
1012,  holding  assets  of  insolvent  corporation  are  not  trust  fund  for  equal  distri- 
bution, but  that  bona  fide  preferences  may  be  made. 
Equitable   lien   of  creditors. 

Cited  in  Farmers'  Loan  &  T.  Co.  v.  Canada  &  St.  L.  R.  Co.  127  Ind.  250,  11 
L.  R.  A.  748,  26  N.  E.  784,  to  point  that  creditors  may  have  general  equitable 
lien  upon  funds  of  insolvent  corporation. 

Distinguished  in  Farmers'  Loan  &  T.  Co.  v.  Canada  &  St.  L.  R,  Co.  127  Ind. 
271.  11  L.  R.  A.  748,  26  N.  E.  784.  holding  general  equitable  lien  of  creditors  of 
insolvent  corporation  cannot  defeat  specific  liens  upon  the  property. 
L.R.A.  Au.  Vol.  I.— 54. 


5  L.R.A.  378]  L.  E.  A.  CASES  AS  AUTHORITIES.        .  850 

Action   against   directors. 

Cited  in  Meisse  v.  Loren,  5  Ohio  N.  P.  308,  upholding  right  of  creditor  and 
stockholder  of  insolvent  bank  to  sue  directors  for  gross  negligence;  Zinn  v.  Bax- 
ter, 17  Ohio  C.  C.  288,  holding  trust  relation  between  shareholder  and  directors 
ceases  on  sale  of  stock,  and  former  cannot  thereafter  sue  latter. 
Appointment    of   receiver. 

Cited  in  Cheney  v.  Maumee  Cycle  Co.  64  Ohio  St.  213,  60  N.  E.  207,  holding 
order  appointing  receiver  of  insolvent  corporation  includes  real  estate;  Whit- 
ney v.  Hanover  Nat.  Bank,  71  Miss.  1020,  23  L.  R.  A.  534,  15  So.  33,  holding 
decree  in  suit  by  general  creditors  appointing  receiver  for  insolvent  bank  which 
had  surrendered  assets  to  chancellor,  who  had  appointed  receiver,  not  subject  to 
collateral  attack. 
Powers  of  directors  and  trustees  of  corporation. 

Cited  in  Arbuckle  v.  Woolson  Spice  Co.  21  Ohio  C.  C.  369,  11  Ohio  C.  D.  734, 
on  rights  and  duties  of  directors  of  corporation  as  to  its  property;  In  re  Em- 
press Josephine  Toilet  Co.  (Dissolution  of)  1  Ohio  N.  P.  N.  S.  23,  13  Ohio  S. 

6  C.  P.  Dec.  663,  holding  invalid,  note  of  insolvent  corporation  given  by  director 
thereof  in  payment  of  his  personal  debt,  though  the  amount  was  due  him  for 
salary,  but  he  owed  for  assessment  upon  stock;   Mansfield  v.  Cincinnati  Ice  Co. 
28  Ohio  L.  J.  115,  11  Ohio  Dec.  Reprint,  620,  on  trustees  of  insolvent  corpora- 
tion as  representing  creditors. 

Compulsory   allowance   of   claim. 

Cited  in  Meader  v.  Root,  11  Ohio  C.  C.  86,  holding  superior  court  has  juris- 
diction of  action  against  trustee  of  insolvent  estate  to  compel  allowance  of 
claim. 

5  L.  R.  A.  384,  MORRISON  v.  COLEMAN,  87  Ala.  655,  6  So.  374. 
Navigability  of  stream. 

Cited  in  Bayzer  v.  McMillan  Mill  Co.  105  Ala.  397,  53  Am.  St.  Rep.  133,  16 
So.  923,  holding  stream  non-navigable  if  adapted  only  to  transportation  of  saw- 
logs  at  occasional  periods  during  freshets;  United  States  v.  Rio  Grande  Dam  & 
Irrig.  Co.  9  N.  M.  299,  51  Pac.  674,  holds  navigability  depends  upon  public  com- 
mercial use. 

Cited  in  notes  (7  L.  R.  A.  674)  on  test  of  navigability  of  rivers;  (41  L.  R. 
A.  374)  as  to  what  streams  are  floatable;  (42  L.  R.  A.  321)  on  periodicity  as 
affecting  navigability;  (126  Am.  St.  Rep.  732)  on  what  waters  are  navigable. 
Diversion  of  water. 

Cited   in  note    (9   L.   R.   A.   812)    on   diversion   of   water   of   streams. 
Receivers  receipt  as  title  to  public  land. 

Cited  in  Thompson  v.  Easier,  148  Cal.  648,  113  Am.  St.  Rep.  321,  84  Pac.  161, 
holding  issuance  of  receiver's  receipt  to  homestead  entryman  in  possession  and 
claiming  land  gives  him  right  to  maintain  or  defend  suit  concerning  the  land. 

Cited  in  note  (20  Am.  St.  Rep.  842)  on  right  of  settler  on  public  lands  before 
issuance  of  patent. 

5  L.  R.  A.  386,  Re  SUGAR  TRUST,  54  Hun,  354,  7  N.  Y.  Supp.  406. 

Affirmed  in  121  N.  Y.  582,  9  L.  R.  A.  33,  18  Am.  St.  Rep.  843,  24  N.  E.  834. 
Acts    constituting    abuse    of    corporate    franchise. 

Cited  in  State  ex  rel.  Snyder  v.  Portland  Natural  Gas  &  Oil  Co.  153  Ind.  487, 
53  L.  R.  A.  415,  74  Am.  St.  Rep.  314,  53  N.  E.  1089,  holding  gas  company 
contracting  with  competing  company  that  neither  will  sell  gas  to  consumers 
of  the  other,  subject  to  judgment  of  ouster;  Distilling  &  Cattle  Feeding  Co.  v. 


851  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  386 

People,  156  111.  487,  47  Am.  St.  Rep.  200,  41  N.  E.  188,  holding  scheme  of 
distilling  company  to  get  control  of  entire  distilling  business  of  United  States, 
for  purpose  of  removing  competition  and  creating  monopoly,  unlawful;  Queen 
Ins.  Co.  v.  State,  86  Tex.  275,  22  L.  R.  A.  492,  24  S.  W.  397,  raising  ques- 
tion whether  contract  in  restraint  of  trade  between  corporations  is  ground  for 
forfeiture  of  franchises. 

Cited  in  footnotes  to  Stockton  v.  Central  R.  R.  Co.  17  L.  R.  A.  97,  which  holds 
lease  of  railroad  franchise  and  tracks  to  railway  corporation  of  another  state, 
in  excess  of  corporate  power;  State  ex  rel.  Watson  v.  Standard  Oil  Co.  15  L. 
R.  A.  145,  which  holds  agreement  for  transfer  of  corporate  stock  to  trustees  to 
vote  and  receive  dividends  void;  State  ex  rel.  Sheets  v.  Mt.  Hope  College  Co. 
52  L.  R.  A.  365,  which  authorizes  dissolution  of  educational  institution  for 
sale  of  diplomas  without  regard  to  merit;  Illinois  Trust  &  Sav.  Bank  v.  Doud, 
52  L.  R.  A.  481,  which  denies  right  to  forfeit  franchise  for  failure  to  exercise 
all  of  granted  power. 

Cited  in  notes   (9  L.  R,  A.  34)    on  conditions  attached  to  grant  of  corporate 
franchise;    (8   L.   R.  A.   500)    on   consolidation   of  corporations,   creating  trust, 
ultra  vires;   (8  L.  R.  A.  498)   on  corporate  franchises  as  public  grants. 
"Who    in  ay    raise    question    of    invalidity    of    incorporation. 

CSted  in  Willoughby  v.  Chicago  Junction  R.  &  U.  S.  Co.  50  N.  J.  Eq.  676,  25 
Atl.   277,    holding   invalidity   of   incorporation   can   be   attacked   only  by   attor- 
ney general  on  behalf  of  people. 
Trade    combinations. 

Cited  in  Hentz  v.  Havemeyer,  58  App.  Div.  40,  68  N.  Y.  Supp.  440,  holding  de- 
termination as  to  validity  of  combination  agreement  unnecessary  to  decision; 
Gray  v.  Oxnard  Bros.  Co.  59  Hun,  388.  13  N.  Y.  Supp.  86,  holding  action  for  ac- 
count of  corporate  member's  share  of  profits  of  illegal  combination  not  main- 
tainable; Knight  &  J.  Co.  v.  Miller,  172  Ind.  42,  87  N.  E.  823,  holding  it  un- 
necessary to  show  immediate  results  of  act  are  to  suppress  competition  or  create 
monopoly;  their  tendency  to  do  so  is  sufficient;  DeWitt  Wire-Cloth  Co.  v.  New 
Jersey  Wire-Cloth  Co.  16  Daly,  532,  14  N.  Y.  Supp.  277,  holding  same  in  effect, 
and  that  agreement  to  restrict  competition  and  arbitrarily  enhance  price  of 
commodity  of  commerce  is  unlawful;  Pocahontas  Coke  Co.  v.  Powhatan  Coal  & 
Coke  Co.  60  W.  Va.  529,  10  L.R.A. (N.S.)  284,  116  Am.  St.  Rep.  901,  56  S.  E. 
264,  9  A.  &  E.  Ann.  Gas.  667,  holding  court  not  limited  to  consideration  of 
purpose  stated  in  ascertaining  real  purpose  of  contract. 

Cited  in  note  (41  L.  ed.  U.  S.  1009,  1010)  on  validity  of  contracts  in  restraint 
of  trade. 

Distinguished  in  People  v.  Klaw,  55  Misc.  91,  106  N.  Y.  Supp.  341,  holding 
plays   and   entertainments   of   stage   are   not   articles   or   useful   commodities   of 
common  use,   and  business   of  owning,   leasing   and   controlling   theaters   is  not 
trade. 
To   control   prices. 

Cited  in  Lovejoy  v.  Michels,  88  Mich.  28,  13  L.  R.  A.  775,  49  N.  W.  901,  hold- 
ing combination  of  manufacturers  to  sell  goods  at  agreed  price,  unlawful;  Bailey 
v.  Master  Plumbers'  Asso.  103  Tenn.  107,  46  L.  R.  A.  563,  52  S.  W.  853,  holding 
by-law  of  master  plumbers'  association,  requiring  member  bidding  on  work 
against  another  member  to  pay  stated  sum  to  association,  invalid;  Queen  Ins.  Co. 
v.  State,  86  Tex.  270,  22  L.  R.  A.  492,  24  S.  W.  397,  holding  combination  between 
insurance  companies  to  increase  rates  not  within  statute  prohibiting  trusts; 
United  States  v.  Addyston  Pipe  &  Steel  Co.  46  L.  R.  A.  136,  29  C.  C.  A.  160,  54 
U.  S.  App.  723,  85  Fed.  291,  Modified  in  175  U.  S.  211,  44  L.  ed.  136,  20  Sup.  Ct. 
Rep.  96,  holding  combination  of  manufacturers  to  regulate  sales  and  prices  of  pipe, 


5  L-RJL  3S«J  JL.  R  A.  CASES  AS  AUIEORIHES, 


;  Jolia  IX  JRuk  *  Sou  COL  T.  Sanaa!  mohsafe  Dmggistsf  Asso.  173  X. 
Y.  Sss,  «2  JL.  R  A.  (MS,  96  Am.  SSL  Rep.  5IS,  <S7  X.  JBL  13)6  {dissoAiag  opuukn), 
aujjnittj  haUiag  ao  boywott  effected  by  refusal  of  autawEaetianre  to  sell  madidac* 
to  oae  Mi  anaiialaiaiag  agreed  poet:  State  ex  reL  Cktes  T.  Staadaid  Oil  Co. 
32*  Teaa.  177,  11*  &  W.  307,  kddiag  coaateiamadiag  of  orders  given  to  «s» 
off  two  aaapetiag  oil  seffiers  by  •mhajfcs  ia  parsoaaiee  of  agreeawot;  to  eoatand 
ariee  <of  ofl  adawfdl;  Outod  Slates  T.  MacAadiros  Jfc  T.  Oa.  149  Fed.  SS4, 
of  trade  im  Ikoriee  paste  "riitaaF  awaopofy  aa  diffeitentutied 

IL^-.     ____  ^      _  J    __  _       -      _         ^^-M- 

anr  gr*»t  OK  rojrau  pouDmiu 
died  ia  fnottMte  to  Slate  v.  P&ippK  18  L  R.  A.  638,  wfckh  koUte  eoariaamtiai 

to  iaocase  rates,  eoatranr  to  stale 


ia  nstniat  off  trade. 
((11  L.  R.  A.  437,  4381  «•  coatiachii  to  icgobte  CMayetUioa  ia 

ia  Uaited  States  v.  l^avs-lEsBoari  Freight  AMD.  34  L  B-  A,  S3, 
7  C.  CL  A.  74,  4  laters.  Com  Rep.  453,  19  U.  S.  App.  3C,  58  Fed.  70,  svstainin^ 

eoatxaet  to  preweat  eaaa^etittMBi  ia  fie^gat  rates  by  agreemeat  to  fliiig*  rates 
fiadbyjai 


da.  T.  Garat,  1SR. 

Am.  SL  Rep.  784,  28  AIL  973,  boldBMf  agraeweat  betwwea  iaeorpoimtora  Bot  to 

for  five  j«an  not  iaralid  aa  creatiag 


Cited  ia  Bnnm  v.  Jaeobx'  Fkanaaey  Co.  115  tia.  443,  57  LL  R.  A.  354,  90  Am, 
SL  Rep.  19ft,  41  &  EL  553,  aoMiBg  eancy  nrffl  ajoia  scheme  off  local 
to  piimiai.  wfcnlrab-  iiaini  thiuaghum  Onted  States  aeDiag  to 


DntiagoiAed  at  Stadtoa  T.  Ameaemm  Tobaceo  Co.  55  Jf.  J.  Eq.  37«,  3» 
AtL  971,  kaldiag  eqnttj  wflffl  aot  eajoia  act  of  tnrporm&om  witUa  corporate 
that  it  vns  orgaarand  miiA   ia  n|g,a  to  exerage  pua<i»  il- 


ia 121  ST.  Y.  9H2,  9  L  R.  A.  33,  IS  Am  St.  Rep.  841,  24  X.  EL  834, 

off  aaunBactaxng  mapmi  iiilaai    wiUk 
of  tiKfcl,  aali»fal 

Cited  ia  «otn  «(9  L.  R.  A.  3«;  13  L.  R.  A.  711 .)  oa 
DnHaganhed  a*  Onited  States  T.  E.  CL  Ka^rit  Co.  W  Fed.  310, 

off  xteck  off  «anbr  tmtpaatioa  ia  •anftcr  •tale,  as  put 
coatxol  of 


Cited  m  State  IT.  AaHtiooi  Sagar  Ref.  OOL  108  La.  *39,  32  So.  9t5, 

$ft"BSU*  IcfiBBT  afUDttrfaaClbBDlH'  CXKHUlt  XNIDB  SlCBBSB  JMiJ_ 


Elertrie  Secaritin  Co.  T.  State,  91  JEm.  9ffl,  124  Am  St. 
ia&.  44  So.  78S,  taldiag  fid&at  that  euBpuiaie  eriateaee  aad  corporate  faae- 

:  -    ;  .--     :-•:•::••":-•:••         :-  *-f   -  •     . . ;    :••;    ;.  -:-.••. :  :^.i    v  1^1    .1-  -  ..-  i   -..-.    5  _  ;•- 


5  L.  R.  A.  JK.  G ASIKHC  T.  MACE.  33  W.  Va.  14,  25  Am  SL  Rep.  848,  1*  8.  EL 

'••• 

Gted  n  Rogas  T.  Coal  Bmr  Rom  &  Driving  Oa.  41  W.  Ta.  597,  23  S.  EL 


-:3  L.  R,  A.  CASES  AS  AUTHORITIES.  [5  LJLA.  409 

919,  holding  party  liable  for  injury  to  riparian  ptopqty  caused  by  boom  though 
latter  built  and  managed  without  mgliftumt;  Watte  w.  Norfolk  ft  W.  R.  Co.  39 
W.  Va.  211,  23  L,  R.  A.  679,  45  Am.  St.  Rep.  894,  19  S.  E.  521,  holding  damages 
«uffered  by  milldam  through  negligent  blasting  recoverable  though  dam  con- 
structed in  floatable  stream  without  sluiceway;  Connecticut  River  Lumber  Co.  v. 
Oleott  Falls  Co.  65  ST.  H.  377,  13  L.  R.  A.  830,  21  AtL  1090,  holding  bill  to  en- 
join as  public  nuisance  maintenance  of  dam  without  sluiceways  in  floatable 
stream  properly  brought  by  lumber  company,  where  attorney  general  joined  as 
party  plaintiff;  Piekens  T.  Goal  River  Boom  ft  Timber  Go.  51  W.  Va.  449,  90 
Am.  St.  Rep.  819,  41  S.  EL  400,  holding  lumber  company  liable  to  mill  owner 
for  damages  occasioned  by  deposit  of  sand  at  milldam  as  result  of  maintenance 
of  boom  in  too  dose  proximity  thereto;  Miller  T.  State,  124  Tenn.  293.  35  LuRJL 
<NJS.)  411,  137  S.  W.  760;  Blackman  T.  Manldm,  164  Ala.  347,  27  LJLA,  iX-Sv) 
«73,  51  So.  23,— holding  that  right  of  floatage  in  otherwise  non-navigable  stream 
cannot  be  insisted  upon  to  exclusion  of  use  of  water  for  machinery  by  riparian 
owner:  Minnesota  Canal  ft  Power  Go.  v.  Kooehiehing  Co.  97  Minn.  441,  5  L.RJL 
<XJ?J  644,  107  X.  W.  4O5,  7  A.  ft  EL  Ann.  Gas.  1182,  on  where  public  have  a 
right  of  way  in  streams. 

Cited  in  notes  (7  L.  R.  A.  674)  on  navigable  rivers  as  public  highways;  (13 
L.  R.  A.  828)  on  navigable  waters;  floatage  of  logs;  ((41  L.  R.  A.  374)  on  right 
to  use  streams  for  floating  logs;  ([59  L.  R.  A.  53,  79)  on  right  to  obstruct  or 
destroy  rights  of  navigation;  «22  L.B.A.  ( X-S, ;)  547)  on  rights  and  duties  be- 
tween those  maintaining  dam  and  those  using  floatable  stream. 
Xmrtcmfcle  wmten;  warn*  ewMtttwte. 

Cited  in  Gwaltney  v.  Scottish  Carolina  limber  ft  Land  Co.  Ill  U.  C.  557,  16 
&  E.  692,  holding  evidence  that  stream  was  floatable  above  certain  point  in- 
sufficient to  justify  taking  from  jury  question  of  floatahiliry  in  which  logs  had 
been  floated  above;  Burke  County  T.  Catawha  Lumber  Go.  116  X.  C,  736,  47  Am. 
St.  Rep.  829,  21  S.  EL  941,  holding  stream  floatable  where  it  rises  eight  to  ten 
times  yearly,  to  sufficient  height  to  carry  logs  over  shoals  and  bars;  Webster  T. 
Hariss,  111  Tenn.  691,  59  L.  R.  A.  330,  69  S.  W.  782,  holding  arm  of  lake  though 
18  to  20  feet  deep  not  navigable  where  filled  with  stumps  and  snags  through 
which  no  channel  located;  Hot  Springs  Lumber  ft  Mfg.  Go.  v.  Revercomb,  196  Va. 
181,  9  L  J  -  897,  55  S.  EL  580,  holding  a  stream  is  a  navigable  or  float- 

able one,  if  by  the  increased  precipitation  at  seasons  recurring  periodically  the 
stream  will  be  of  substantial  use  to  public  for  transportation;  State  ex  reL 
TJnited  Tanners  Timber  Co.  v.  Superior  Ct.  60  Wash.  196,  110  Pae.  1017,  holding 
that  stream  is  navigable  for  floatage  of  timber  products  where  during  natural 
freshets  in  winter,  spring,  and  fall  it  is  floatable  for  logs  and  is  used  at  all  times 
for  floating  shingle  bolts:  People  ex  reL  Highway  Gomrs.  T.  Whiteside  County,  122 
HL  App.  43,  on  what  constitutes  navigable  waters;  Harrison  T.  Fite,  78  C.  C.  A. 
447,  148  Fed.  784,  on  the  test  of  the  navigability  of  a  stream  as  being  its  capa- 
city for  usefulness  as  a  public  highway  of  transportation. 

Cited  in  footnote  to  Heyward  v.  Farmers'  Min.  Co.  28  L.  R.  A.  42,  which  holds 
navigable  capacity  test  of  navigability. 

Cited  in  notes  (42  T. it  4  318,  319;  126  Am.  St.  Rep.  711,  722,  727,  729,  730) 
on  what  waters  are  navigable. 

5  L,  R.  A.  400,  KLIXE  v.  McLALS,  33  W.  Va,  32,  10  S.  K.  11. 

Cited  in  Clifton  v.  Montague,  40  W.  Va,  216,  33  L.  R.  A.  456.  52  Am.  St.  Rep. 
€72,  21  S.  EL  858,  holding  no  covenant  as  to  quality  or  capacity  inferable  from 
description  in  lease  of  bind,  -including  six  salt  wells;"  Arbenz  v.  Esley,  52  W. 


5  L.R.A.  400]  L.  R.  A.  CASES  AS  AUTHORITIES.  854 

Va.  483,  61  L.  R.  A.  9GO,  44  S.  E.  149,  holding  landlord  bound  to  keep  roof  in 
repair  not  bound  to  rebuild  after   fire. 

Cited  in  notes  (10  L.R.A.  148)  on  rights  and  remedies  of  lessee  as  to  repairs; 
(9  Eng.  Rul.  Cas.  457)   on  implied  obligation  of  landlord  to  repair,  and  implied 
warranty  of  fitness  of  premises  for  purposes  for  which  they  are  let. 
Variance. 

Cited  in  Jenkins  v.  Chesapeake  &  O.  R.  Co.  61  W.  Va.  600,  —  L.R.A.  (N.S.)  — , 
57  S.  E.  48,  11  A.  &  E.  Ann.  Cas.  967,  holding  in  action  for  breach  of  contract 
a  declaration  upon  a  special  contract  is  not  supported  by  proof  of  an  implied 
contract. 

5  L.  R.  A.  403,  GUILLOTTE  v.  POINCY,  41  La.  Ann.  333,  6  So.  507. 
Who  may  bring  action  to  contest  title  to  office. 

Distinguished  in  State  v.  Grandjean,  51  La.  Ann.  1101,  25  So.  940,  holding  title 
of  de  facto  officer  to  office  may  be  tested  by  attorney  general  without  joining  as 
plaintiff  any  claimant  to  office,  and  without  appointment  to  fill  vacancy  having 
been  made. 
Injunction,   etc.,   to   protect   de   facto   officer. 

Cited  in  Poyntz  v.  Shackelford,  107  Ky.  556,  54  S.  W.  855,  holding  injunction 
issues  to  protect  officer  rightfully  in  office  from  interference  with  performance  of 
duties  by  claimants  about  to  qualify  for  same  office;  Priddie  v.  Thompson,  82 
Fed.  191,  and  Butler  v.  White,  83  Fed.  589,  holding  injunction  may  issue  to 
restrain  removal  of  de  facto  civil  service  employees  by  appointing  power,  until 
legal  determination  of  validity  of  their  commission;  State  ex  rel.  Fairbanks  v. 
Superior  Court,  17  Wash.  16,  61  Am.  St.  Rep.  893,  48  Pac.  741,  holding  title  of 
de  facto  officer  not  determinable  upon  petition  for  injunction  to  restrain  inter- 
ference with  office;  State  v.  Alexander,  107  Iowa,  183,  77  N.  W.  841,  holding 
injunction  restraining  exercise  of  duties  of  office  by  de  facto  incumbent  will  not 
issue  incidentally  in  Code  proceeding  to  test  his  title  thereto;  Stenglein  v.  Sag- 
inaw  Circuit  Judge,  128  Mich.  442,  87  N.  W.  449,  holding  mandamus  will  not 
issue  to  compel  the  dissolution  of  injunction  in  protection  of  de  facto  officer,  where 
injunction  proceeding  is  not  clearly  without  merit;  Howe  v.  Dunlap,  12  Okla.  479, 
72  Pac.  895  (dissenting  opinion),  majority  denying  injunction  to  test  city  at- 
torney's right  to  office;  Barendt  v.  McCarthy,  160  Cal.  688,  118  Pac.  228  (dis- 
senting opinion),  on  power  to  issue  injunction  to  protect  incumbent  of  office 
pending  action  to  determine  contest;  Hollar  v.  Cornett,  144  Ky.  422,  138  S.  W. 
298,  holding  that  injunction  lies  to  prevent  substituted  trustees  of  board  of 
education  from  exercising  duties  of  members  of  board;  Sanders  v.  Emmer,  115 
La,  595,  39  So.  631,  holding  injunction  might  issue  at  the  instance  of  a  de  facto 
officer  to  prevent  claimants  from  taking  possession  of  until  their  rights  are 
adjudicated;  Jackson  v.  Rowell,  119  La.  883,  44  So.  689,  holding  the  members 
of  a  parish  school  board  sought  to  be  removed  from  office  by  the  governor  might 
maintain  an  injunction  to  protect  their  possession  against  the  new  board  ap- 
pointed by  the  governor;  Callaghan  v.  Irvin,  40  Tex.  Civ.  App.  457,  90  S.  W. 
335,  holding  city  marshal  might  enjoin  mayor  and  city  counsel  from  interfering 
with  his  possession  of  office;  Callaghan  v.  Tobin,  40  Tex.  Civ.  App.  445,  90  S. 
W.  328,  holding  same  in  case  of  chief  of  fire  department;  Hardy  v.  Reamer,  84 
S.  C.  488,  66  S.  E.  678;  Gleason  v.  Wisdom,  120  La.  635,  45  So.  530, — on  right 
of  public  officer  to  protect  his  possession  by  injunction  against  claimants. 

Cited  in  footnote  to  People  ex  rel.  Corscadden  v.  Howe,  66  L.R.A.  664,  which 
denies  jurisdiction  of  equity  to  restrain  attempted  removal  from  office  of  public 
official  by  proper  authorities  in  accordance  with  provisions  of  invalid  statute. 


855  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  406 

Cited  in  notes  (8  L.R.A.  229)  on  proceeding  to  test  right  to  office;  (42  Am. 
St.  Rep.  236,  237)  on  determination  of  title  to  office  in  injunction  proceedings. 

Distinguished  in  Callan  v.  Fire  Department,  45  La.  Ann.  675,  12  So.  834,  hold- 
ing injunction  will  not  issue  where  alleged  de  facto  officer  actually  superseded 
by  another,  and  petition  fails  to  show  that  complainant  is  exercising  duties  of 
officer;  Ward  v.  Sweeney,  106  Wis.  48,  82  N.  W.  169,  holding  injunction  to  keep 
claimants  out  of  office  until  legal  establishment  of  right  thereto,  properly  denied 
where  exceptional  circumstances  are  not  shown;  Reemelin  v.  Mosby,  47  Ohio  St. 
572,  26  N.  E.  717,  holding  injunction  will  not  issue  to  restrain  mayor  from 
appointing  officers  on  ground  that  statute  on  which  right  is  based  is  unconstitu- 
tional; Landes  v.  Walls,  160  Ind.  219,  66  N.  E.  679,  denying  injunction  against 
appointees  from  acting  as  councilmen  pending  contest  as  to  title;  People  ex  rel. 
Hinckley  v.  District  Court,  29  Colo.  281,  93  Am.  St.  Rep.  61,  68  Pac.  224,  deny- 
ing courts'  power  to  enjoin  members  of  board  of  commissioners  from  seating 
adversary. 

5  L.  R.  A.  405,  GRIGGS  v.  SWIFT,  82  Ga.  392,  14  Am.  St.  Rep.  176,  9  S.  E.  1062. 
Termination  of  contract  by  death. 

Cited  in  Greenburg  v.  Early,  4  Misc.  101,  23  N.  Y.  Supp.  1009,  holding  con- 
tract of  employment  dissolved  by  death  of  partner  in  employing  firm. 

Cited  in  note   (6  L.  R.  A.  728)   on  service  terminated  by  death  of  master. 

Distinguished  in  Hughes  v.  Gross,  166  Mass.  65,  32  L.  R.  A.  621,  55  Am.  St. 
Rep.  375,  43  N.  E.   1031,  holding  contract  for  renewal  of  employment  not  dis- 
solved by  death  of  one  partner  in  employing  firm. 
Excuse   for   nouperformance. 

Cited  in  Re  Inman  &  Co.  171  Fed.  193,  holding  an  adjudication  in  involuntary 
bankruptcy  terminates  a  contract  of  employment. 

Distinguished  in  Hipp  v.  Fidelity  Mut.  L.  Ins.  Co.  128  Ga.  497,  12  L.R.A. 
(N.S.)  325,  57  S.  E.  892,  holding  the  sickness  of  an  insured  which  prevented 
the  payment  of  premiums  on  a  policy  before  his  death  would  not  prevent  the 
forfeiture  of  the  policy  for  nonpayment. 

5  L.  R.  A.  406,  BROUGHTON  v.  McGREW,  39  Fed.  672. 
Libel  and  slander. 

Cited  in  Graybill  v.  De  Young,  140  Cal.  329,  73  Pac.  1067,  holding  instruction 
that  jury  could  consider  influence  and  circulation  of  paper  proper. 

Cited  in  notes    (9  L.  R.  A.  621)    on  definition  of  libel;    (6  L.  R.  A.  364)   on 
libel;   damages  in  case  of  express  malice;    (4  L.R.A. (N.S.)    1109,  1113)    on  lia- 
bility   growing   out    of   giving    or    refusing    information    affecting   character   or 
reputation  of  servant. 
Privilege. 

Cited  in  Ashcroft  v.  Hammond,  132  App.  Div.  6,  116  N.  Y.  Supp.  362,  holding 
question  for  jury  whether  telegram  between  stockholders  reflecting  on  manage- 
ment of  corporation  was  sent  in  good  faith;  Abraham  v.  Baldwin,  52  Fla.  157, 
10  L.R.A. (N.S.)  1055,  42  So.  591,  10  A.  &  E.  Ann.  Cas.  1148,  on  when  com- 
munications are  privileged. 

Cited  in  footnotes  to  Nichols  v.  Eaton.  47  L.  R.  A.  483,  which  holds  communi- 
cation by  principal  to  agent  as  to  business  of  agency  not  actionable  unless  actu- 
ated by  malice:  Elmer  y.  Fessenden,  5  L.  R.  A.  724,  which  holds  admissible 
declarations  of  workmen  on  quitting  work,  that  defendant  had  told  them  work 
was  dangerous  from  presence  of  arsenic  in  silk  used :  Nissen  v.  Cramer,  6  L.  R.  A. 
780,  which  holds  relevant  words  spoken  by  party  to  action  during  trial  privi- 


5  L.R.A.  406]  L.  R.  A.  CASES  AS  AUTHORITIES.  856 

leged;  Hemmens  v.  Nelson,  20  L.  R.  A.  441,  which  holds  statement  by  principal 
of  deaf  mute  institute  to  executive  committee  as  to  improper  acts  of  department 
superintendent  privileged;  Sullivan  v.  Strahorn-Hutton-Evans  Commission  Co. 
47  L.  R.  A.  859,  which  holds  imputation  of  evil  motives, — as  dishonesty, — in  let- 
ter complaining  of  nonpayment  of  debt  by  third  person  through  bank,  not  privi- 
leged. 

Cited    in   notes    (20    L.R.A. (N.S.)    364)    on    libel    and    slander;    privilege    as 
affected   by   extent  of   publication;     (26   LJELA.(N.S.)    1081,   1083)    on   qualified 
privilege  of  communication  between  members  of  association  or  private  corpora- 
tion. 
Misconduct  of  counsel. 

Cited  in  note  (37  L.  ed.  U.  S.  1003)  as  to  when  counsel's  address  to  jury  is 
ground  of  error. 

5  L.  R.  A.  410,  STEWART  v.  ROBINSON,  115  N.  Y.  328,  22  N.  E.  160,  163. 

Action  by  receiver  on  debt  due  from  third  party  to  deceased  partner's  estate 
in  Colwell  v.  Garfield  Nat.  Bank,  119  N.  Y.  411,  23  N.  E.  739. 

Action  to  foreclose  mortgage  executed  by  surviving  partner  in  Bell  v.  Hepworth, 
134  N.  Y.  446,  31  N.  E.  918. 
Rights    and    liability    of    deceased    partner's    estate. 

Followed  without  discussion  in  Delamater  v.  Hepworth,  115  N.  Y.  664,  22  N.  E. 
163. 

Cited  in  Re  Kalbfell,  27  Pittsb.  L.  J.  N.  S.  211,  holding  general  estate  of  de- 
ceased partner  not  liable  for  debts  contracted  after  decease,  although  agreement 
provided  for  specific  time  for  firm's  duration  and  for  supplanting  of  son  in  case  of 
decease;  McArdle  v.  West  Philadelphia  Title  &  T.  Co.  42  W.  N.  C.  242,  7  Pa. 
Super.  Ct.  337,  holding  executors  continuing  employment  of  half  testator's  estate 
in  partnership  business  pursuant  to  will,  not  liable  individually  or  in  representa- 
tive capacity  for  debts  thereafter  incurred  by  firm,  in  excess  of  half  estate; 
Butcher  v.  Hepworth,  115  N.  Y.  342,  22  N.  E.  163,  holding  executors  of  deceased 
partner  not  copartners  of  survivor  under  partnership  contract;  Bell  v.  Hepworth, 
134  N.  Y.  446,  47  N.  Y.  S.  R.  810,  31  N.  E.  918,  holding  mortgage  executed  by 
survivor  with  consent  of  executors  of  deceased  partner  valid,  a  lien  on  firm 
property  prior  to  deceased  partner's  claim;  Wilcox  v.  Derickson,  168  Pa.  337,  31 
Atl.  1080,  holding  executor  not  required  to  accept  testator's  stock  in  joint  stock 
company  so  as  to  render  general  estate  liable  for  firm  debts  contracted  after  his 
death,  by  stipulation  in  articles  of  association  that  death  of  one  partner  should 
not  dissolve  association;  Campbell  v.  Campbell,  40  N.  Y.  S.  R.  818,  16  N.  Y.  Supp. 
165,  holding  acceptance  of  account  by  surviving  partner  by  administratrix  of  de- 
ceased partner  bars  right  to  subsequent  accounting  in  absence  of  fraud  or  mistake; 
Dexter  v.  Dexter,  43  App.  Div.  273,  60  N.  Y.  Supp.  371,  holding  executrix  of  de- 
ceased partner  permitting  firm  business  to  continue  after  payment  of  debts  due 
at  dissolution,  thereby  becomes  mere  creditor  of  surviving  partner;  Manhattan 
Oil  Co.  v.  Gill,  118  App.  Div.  19,  103  N.  Y.  Supp.  364,  holding  legatees  are  not 
liable  as  partners  where  the  representatives  of  the  decedent  continue  the  busi- 
ness as  directed  by  the  will:  Rand  v.  Wright,  141  Ind.  234,  39  N.  E.  447,  holding 
a  partnership  agreement  that  upon  the  death  of  any  member  of  the  firm  his 
legal  representative  shall  occupy  his  place  in  the  partnership,  controls  only 
property  of  the  deceased  in  the  firm  at  the  time  of  his  death ;  Wilcox  v.  Derick- 
son, 168  Pa.  337,  31  Atl.  1080,  holding  where  an  agreement  that  on  death  of 
partner  his  legal  representative  shall  succeed  to  his  interest,  the  representative 
is  not  bound  to  accept  the  stock  of  the  deceased  partner  so  as  to  charge  his  es- 
tate with  firm  debts  contracted  after  his  death. 


857  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  417 

Cited  in  notes  (79  Am.  St.  Rep.  715)  on  liability  of  deceased  partner's  estate; 
(40  L.R.A.  (X.S. )  219  on  personal  representative,  testamentary  trustee,  or  guard- 
ian carrying  on  business. 

Distinguished  in  Rand  v.  Wright,  141  Ind.  234,  39  N.  E.  447,  holding  partner- 
ship to  continue  after  death  of  member  where  articles  of  agreement  provide  that 
heirs,  etc.,  "shall  occupy  same  place  in  copartnership"  and  shall  not  withdraw 
capital  until  expiration  of  partnership  period;  Woarms  v.  Bauer,  26  N.  Y.  S.  R. 
937,  7  N.  Y.  Supp.  323,  holding  validity  of  partnership  agreement,  by  which  inter- 
est of  partner  to  be  continued  in  firm  on  decease,  cannot  be  questioned  by  debtor 
in  action  by  executors  to  collect  debt;  Walker  v.  Steers,  38  N.  Y.  S.  R.  659,  14  N. 
Y.  Supp.  398,  upholding  validity  of  stipulation  in  partnership  contract,  for  contin- 
uation of  business  by  surviving  partner  until  expiration  of  agreed  duration  of 
firm. 
Right*  of  snrvlvinsr  partner. 

Cited  in  Porter  v.  Long,  124  Mich.  593,  83  N.  W.  601,  holding  survivor  not  en- 
titled to  compensation  for  winding  up  firm  business  where  simply  carrying  out 
contracts  between  partners  which  contemplated  continuance  of  firm  until  comple- 
tion thereof. 

Cited  in  footnote  to  Philbrook  v.  Newman,  34  L.  R.  A.  265,  which  holds  good 
will  passes  to  surviving  partners  on  purchase  of  interest  of  deceased. 
Accumulations. 

Cited  in  Thorn  v.  de  Breteuil,  86  App.  Div.  421,  83  N.  Y.  Supp.  849,  holding 
direction  to  continue  business,  accumulating  profits  until  children  reach  age  of 
twenty-five,  invalid. 

5  L.  R.  A.  414,  SPYCHER  v.  WERNER,  74  Wis.  456,  43  N.  W.  161. 
Novation. 

Cited  in  Bank  of  Antigo  v.  Ryan,  105  Wis.  40,  80  N.  W.  441,  raising,  without, 
deciding,  question  whether  third  person's  agreement  to  give  mortgage  constitutes 
novation;  Bohn  Mfg.  Co.  v.  Reif,  116  Wis.  480,  93  X.  W.  466,  holding  that  evi- 
dence fails  to  show  novation  of  debtors;  Frederick  Town  Sav.  Inst.  v.  Michael,  81 
Md.  507,  33  L.  R.  A.  636,  32  Atl.  340  (dissenting  opinion),  majority  holding  tak- 
ing of  new  note  secured  by  void  mortgage  discharges  surety  on  prior  note;  Mul- 
vane  v.  Sedgley,  63  Kan.  121,  55  L.  R.  A.  557,  64  Pac.  1038  (dissenting  opinion) _ 
majority  holding  bar  of  action  against  purchaser  assuming  mortgage  releases- 
mortgagor  where  mortgagee  recognized  assumption. 

Cited  in  notes  (6  L.  R.  A.  688;  13  L.  R.  A.  390)  on  novation;  (10  L.  R.  A.  369) 
on  novation  by  substitution  of  party;  (33  L.  R.  A.  633)  on  liability  of  obligors 
on  original  contract  as  affected  by  renewal  or  substituted  contract  which  is  void. 
Hialit  of  assignee  of  chose  in  action  to  sue. 

Cited  in  note  (5  L.  R.  A.  430)  on  right  of  assignee  of  chose  in  action  to  sue  in 
his  own  name. 

5  L.  R.  A.  417,  LAWRENCE  v.  WHITNEY,  115  N.  Y.  410,  22  N.  E.  174. 

Covenants    running:   -with   land. 

Cited  in  footnote  to  Houston  v.  Zahm,  65  L.R.A.  799,  which  holds  that  a 
covenant  by  a  vendor  to  open  a  way  through  another  tract  which  he  contem- 
plates purchasing  does  not  run  with  the  latter  tract  after  coming  into  the 
vendor's  possession. 

Cited  in  notes  (66  L.R.A.  683)  on  enforcement  of  obligation  to  contribute  to 
cost  of  party  walls,  by  or  against  grantees  or  successors  in  title;  (67  L.R.A. 
404)  on  grant  of  water  power  as  covenant  running  with  land. 


5  L.R.A.  417]  L.  R.  A.  CASES  AS  AUTHORITIES.  858 

Necessary  parties  in  riparian  controversy. 

Cited  in  Climax  Specialty  Co.  v.  Seneca  Button  Co.  54  Misc.  155,  103  N.  Y. 
Supp.  822,  holding  other  riparian  owners  along  defendant's  mill  race  who  do 
not  appear  to  claim  any  rights  on  an  alleged  wrongful  diversion  of  water  are 
not  necessary  parties  to  an  injunction  suit. 

5  L.  R.  A.  422,  POST  v.  WEIL,  115  N.  Y.  361,  12  Am.  St.  Rep.  809,  22  N.  E.  145. 

Followed  without  discussion  in  Post  v.  Bernheimer,  115  N.  Y.  664,  22  N.  E.  149. 
Covenant  or  condition,  which. 

Cited  in  Clement  v.  Burtis,  121  N.  Y.  709,  24  N.  E.  1013,  holding  conveyance 
upon  express  condition  that  grantee,  his  heirs  or  assigns,  shall  have  no  erection  or 
business  creating  nuisance  thereon,  covenant,  and  not  condition  subsequent ;  Graves 
v.  Deterling,  120  N.  Y.  456,  24  N.  E.  655,  holding  grant  containing  a  final  clause 
wherein  it  is  covenanted  and  agreed  that  the  premises  shall  be  used  for  no  noxious 
or  offensive  business,  without  provision  for  re-entry,  creates  covenant,  and  not 
condition;  Los  Angeles  University  v.  Swarth,  54  L.  R.  A.  266,  46  C.  C.  A.  651,  107 
Fed.  803,  construing  deed  given  on  express  condition  that  land  conveyed  shall  be 
used  for  campus,  as  covenant,  and  not  condition;  Van  Schaick  v.  Lese,  31  Misc. 
613,  66  N.  Y.  Supp.  64,  holding  deed,  to  be  void  and  estate  to  revert  in  certain 
•event,  created  condition  subsequent;  Winn  v.  State,  55  Ark.  364,  18  S.  W.  375, 
holding  stipulation  to  make  certain  improvements  or  forfeit  lease,  condition,  and 
not  covenant;  Moore  v.  Prentiss  Tool  &  Supply  Co.  133  N.  Y.  151,  30  N.  E.  736, 
holding  agreement  at  time  of  giving  mortgage  that  mortgagee  should  start 
mortgagor  in  business,  not  condition,  either  precedent  or  subsequent  and  not  avail- 
able to  latter's  vendee;  Bragdon  v.  Blaisdell,  91  Me.  328,  39  Atl.  1036,  holding 
agreement  to  ship  from  vendor's  wharf,  made  part  of  the  condition  and  considera- 
tion of  deed  of  quarry  lot,  not  condition  subsequent,  there  being  no  intent  shown ; 
Scovill  v.  McMahon,  62  Conn.  388,  21  L.  R.  A.  61,  36  Am.  St.  Rep.  350,  26  Atl.  479, 
holding  requirement  of  fence  around  cemetery  for  which  land  is  conveyed,  not 
condition  subsequent;  Elyton  Land  Co.  v.  South  &  North  Ala.  R.  Co.  100  Ala. 
407,  14  So.  207,  holding  conveyance  of  right  of  way.  with  proviso  that  any  other 
railroad  may  lay  parallel  track  thereon,  but  without  reservation  of  right  of  re- 
entry, covenant,  or  limitation  and  not  condition  subsequent;  Graves  v.  Deterling, 
120  N.  Y.  457,  24  N.  E.  655,  holding  that  "it  is  covenanted  and  agreed,"  although 
not  determinative,  persuasive  of  covenant  rather  than  condition;  Clement  v. 
Burtis,  3  Silv.  Ct.  App.  63,  25  Abb.  N.  C.  348,  24  N.  E.  1013,  holding  a  clause 
in  a  deed  reciting  that  the  grant  is  upon  the  express  condition  that  the  grantee, 
his  heirs  or  assigns  shall  not  maintain  a  nuisance  on  the  premises  does  not 
create  a  condition  subsequent  but  a  covenant  running  with  the  land;  Druecker  v. 
McLaughlin,  235  111.  372,  85  X.  E.  647,  holding  a  provision  in  a  deed  of  land 
which  recites  that  the  deed  is  upon  the  express  condition  that  the  grantee  shall 
keep  the  premises  open  as  a  private  way  "forever  or  until  same  shall  be  taken  or 
condemned"  is  a  covenant;  Koch  v.  Streuter,  232  111.  598,  83  N.  E.  1072,  holding 
the  absence  or  presence  of  a  re-entry  clause  is  important  in  the  determination  of 
whether  a  provision  in  a  deed  is  a  covenant  or  a  condition:  Springfield  &  X.  E. 
Traction  Co.  v.  Warrick,  249  111.  474,  94  N.  E.  933,  Ann.  Cas.  1912 A,  187,  holding 
that  clause  in  deed  for  railroad  right  of  way  providing  that  unless  road  is  com- 
pleted within  two  years  land  shall  revert  without  payment  of  consideration,  is 
condition  subsequent;  Richter  v.  Distelhurst,  110  App.  Div.  271,  101  N.  Y.  Supp. 
634,  on  the  construction  of  a  clause  in  a  deed  as  whether  a  condition  or  a 
covenant  as  not  depending  upon  the  technical  language  used:  Zweig  v.  Sweedler, 
140  App.  Div.  320,  125  N.  Y.  Supp.  171,  holding  that  whether  or  not  words  in 


859  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  422 

deed  create  condition  subsequent  does  not  necessarily  depend  upon  the  technical 
language  used. 

Cited  in  footnote  to  Los  Angeles  University  v.  Swarth,  54  L.  R.  A.  262,  which 
holds  covenant,  not  condition,  created  by  deed  conditioned  that  land  shall  be 
used  exclusively  for  college  campus. 

Cited  in  notes  (31  Am.  St.  Rep.  46)  on  condition  subsequent  in  deeds;  (79 
Am.  St.  Rep.  748,  751)  on  what  words  create  condition  subsequent;  (15  Eng. 
Rul.  Cas.  687)  on  what  is  requisite  to  constitute  a  covenant  in  a  lease. 

Distinguished  in  Oregon  R.  &  Nav.  Co.  v.  McDonald,  58  Or.  231,  32  L.R.A. 
(N.S.)  ]21,  112  Pac.  413,  holding  that  conveyance  to  railroad  on  condition  that 
it  would  construct  line  within  two  years  created  condition  subsequent. 

Criticized  in  Clapp  v.  Wilder,   176  Mass.  335,  50  L.  R.  A.  121,  57  N.  E.  692, 
holding  express  condition  that  grantee,  his  heirs  and  assigns,  shall  never  build 
nearer  street  creates  conditional  fee. 
Construction   of  covenant   or  condition. 

Cited  in  Cooper  v.  United  States  Mut.  Acci.  Asso.  57  Hun,  410,  10  N.  Y.  Supp. 
748,  requiring  construction  of  insurance  policy  which  will  avoid  forfeiture  where 
language  is  ambiguous;  Rose  v.  Hawley,  118  N.  Y.  511,  23  N.  E.  904,  holding  area 
under,  with  gratings  in,  sidewalk  not  inhibited  by  deed  of  land  to  be  forever  a 
public  highway  without  other  erection  upon  it  than  a  monument;  Krekeler  v.  Aul- 
bach,  51  App.  Div.  594,  64  N.  Y.  Supp.  908,  holding  deed's  provision  restricting 
height  of  building,  restriction  for  grantor's  benefit  only,  in  view  of  no  right  of  re- 
entry, or  specification  of  heirs  and  assigns,  and  other  circumstances;  Allen  v. 
Farmers'  Loan  &  T.  Co.  18  App.  Div.  32,  79  N.  Y.  S.  R.  402,  45  N.  Y.  Supp.  398, 
holding  under  bequest  of  income  "to  A.  and  of  her  husband,"  testator's  son,  right 
to  participate  not  dependent  on  continuance  of  family  relation ;  Equitable  Life 
Assur.  Soc.  v.  Brennan,  30  Abb.  N.  C.  266,  24  N.  Y.  Supp.  787,  holding  covenants 
to  be  for  benefit  of  prior  vendees  where  vendor  has  disposed  of  entire  tract;  Round 
Lake  Asso.  v.  Kellogg,  47  N.  Y.  S.  R.  675,  20  N.  Y.  Supp.  261,  holding  assignee 
of  lease  made  subject  to  rules  adopted  from  time  to  time,  subject  to  regulation  re- 
quiring obtaining  license  or  permit  for  sale  of  general  merchandise;  Spencer  v. 
Stevens,  18  Misc.  113,  41  N.  Y.  Supp.  39,  holding  deed  upon  condition  against 
sale  of  intoxicants,  covenant  running  with  land;  Schwoerer  v.  Leo,  39  Misc.  508, 
80  N.  Y.  Supp.  399,  holding  that  restriction  as  to  setback  from  building  line  runs 
only  to  first  grantee;  Gebhard  v.  Addison,  87  App.  Div.  378,  84  N.  Y.  Supp.  418, 
holding  parcel  retained  out  of  plot  not  subject  to  restrictions  over  lots  sold : 
Equitable  Life  Assur.  Soc.  v.  Brennan,  30  Abb.  N.  C.  266,  24  N.  Y.  Supp.  784, 
holding  a  covenant  against  the  erection  of  any  stable  on  lots  conveyed  where 
grantor  originally  owner  remainder  of  block  which  he  conveyed  with  like  re- 
striction inures  to  benefit  of  prior  grantees;  Minard  v.  Delaware,  L.  &  W.  R. 
Co.  139  Fed.  64;  St.  Peter's  Church  v.  Bragaw,  144  N.  C.  132,  10  L.R.A.(N.S.) 
637,  56  S.  E.  688;  Silver  Springs,  0.  &  G.  R.  Co.  v.  Van  Ness,  45  Fla.  573,  34 
So.  884, — on  ambiguous  language  in  a  deed  as  to  construe  as  a  covenant  rather 
than  a  condition  subsequent;  Barkhausen  v.  Chicago,  M.  &  St.  P.  R.  Co.  142 
Wis.  298,  124  N.  W.  649,  on  how  ambiguous  language  in  a  deed  is  to  be  con- 
strued: Green  County  v.  Quinlan,  211  U.  S.  594,  53  L.  ed.  342,  29  Sup.  Ct. 
Rep.  162,  on  court  disregarding  the  technical  meaning  of  the  word  "condition" 
where  possible  to  construe  ambiguous  language  to  be  a  covenant;  Korn  v.  Camp- 
bell, 119  App.  Div.  407,  104  N.  Y.  Supp.  462  (dissenting  opinion),  on  the 
presumption  as  to  the  purpose  of  restrictions  inserted  in  a  deed;  Barnes  v. 
Southfield  Beach  Co.  202  N.  Y.  305,  95  N.  E.  691,  to  the  point  that  technical 
rules  of  construction  must,  generally,  yield  to  the  ;•  plication  to  contracts,  of 
good  sense  and  reason;  Ball  v.  Milliken,  31  R.  I.  53,  37  L.R.A. (N.S.)  637,  76 


5  L.R.A.  422]  L.  E.  A.  CASES  AS  AUTHORITIES.  860 

Atl.   789,  Ann.   Gas.   1912B,  30,   holding  that  restrictive   covenant   in   deed  was 
made  for  benefit  of  adjoining  land. 

Cited  in  footnotes  to  Sioux  City  &  St.  P.  R.  Co.  v.  Singer,  15  L.  R.  A.  751, 
which  holds  condition  against  selling  liquor  on  premises  sold,  valid;  Jenks  v. 
Pawlowski,  22  L.  R.  A.  863,  which  denies  vendor's  right  to  enjoin  breach  of  con- 
dition against  sale  of  liquor  where  sales  made  on  adjoining  premises  sold  without 
restriction;  Wakefield  v.  Van  Tassell,  65  L.R.A.  511,  which  upholds  condition 
in  deed  of  land  that  no  grain  shall  ever  be  handled  thereon. 

Cited  in  notes   (82  Am.  St.  Rep.  682)    on  what  covenants  run  with  the  land; 
(95  Am.  St.  Rep.  223)    on  validity  of  conditions  and  restrictions  in  deed;    (14 
Eng.  Rul.  Cas.  802)   on  construing  deed  so  as  to  take  effect  if  possible. 
Extinguishment  of  covenants. 

Cited  in  Muscogee  Mfg.  Co.  v.  Eagle  &  P.  Mills,  126  Ga.  218,  7  L.R.A.  ( N.S. ) 
1144,  54  S.  E.  1028,  holding  a  covenant  in  a  deed  restricting  its  use  for  the 
(benefit  of  adjacent  land  is  extinguished  by  the  vesting  in  one  person  of  the 
title  to  both  tracts. 

Cited  in  note  (1  Brit.  Rul.  Cas.  480)  on  effect  upon  easement  of  unity  of  seisin. 
Equity  jurisdiction  as  regards  covenants. 

Annotation  cited  in  Greensboro  Ferry  Co.  v.  New  Geneva  Ferry  Co.  34  Pa. 
Co.  Ct.  37,  on  jurisdiction  in  equity  to  restrain  breach  of  covenants. 

5  L.  R.  A.  428,  TAPPAN  v.  ALBANY  BREWING  CO.  80  Cal.  570,  13  Am.  St. 

Rep.  174,  22  Pac.  257. 
Specific  performance  of  contract. 

Cited  in  footnotes  to  Hodges  v.  Kowing,  7  L.  R.  A.  87,  authorizing  specific  per- 
formance of  fair  contract  for  sale  of  land,  though  remedy  at  law  exists;  Coffey 
v.  Emigh,  10  L.  R.  A.  127,  which  authorizes  specific  enforcement  of  fair,  reason- 
able, and  just  contract  where  both  parties  are  able  to  perform. 


Cited  in  footnotes  to  Chicora  Fertilizer  Co.  v.  Dunan,  50  L.  R.  A.  401,  which 
holds  failure  to  inform  creditor  of  pending  negotiations  increasing  value  of  collat- 
eral security  sought  to  be  released  not  fraudulent  concealment ;  Opie  v.  Pacific  In- 
vestment Co.  56  L.  R.  A.  778,  which  denies  duty  of  indorser  to  disclose  to  mort- 
gagee knowledge  as  to  value  of  property  which  he  attempts  to  buy  for  third  per- 
son; Hardy  v.  American  Exp.  Co.  59  L.  R.  A.  731,  holding  carrier  collecting  bill 
for  goods  sent  C.  O.  D.,  before  delivery,  knowing  them  to  be  damaged,  liable  for 
amount  paid. 

Cited  in  notes   (12  L.  R.  A.  121)   on  contracts  not  binding  on  makers;    (10  L. 
R.   A.   606)    on   contract  obtained  by   circumvention   and   deceit;    (117   Am.   St. 
Rep.  524)  on  illegality  of  contracts  in  relation  to  prosecution  of  civil  suits. 
Frand  as  a   defence. 

Cited  in  Turner  v.  Ware,  2  Ga.  App.  60,  58  S.  E.  310,  holding  in  an  action 
on  a  promissory  note  where  the  maker  sets  up  the  defense  that  he  was  induced 
to  sign  by  wilful  fraud  the  court  erred  in  excluding  proof. 

5  L.  R.  A.  429,  MEMPHIS  &  L.  R.  R.  CO.  v.  KERR,  52  Ark.  162,  20  Am.  St.  Rep. 

159,  12  S.  W.  329. 
Dnty  of  railroad  company  as  to  persons  on  track. 

Cited  in  Bostwick  v.  Minneapolis  &  P.  R.  Co.  2  N.  D.  454,  51  N.  W.  781,  holding 
fact  that  person  on  track  is  trespasser  does  not  absolve  railroad  from  exercise  of 
care  to  avoid  injury. 


861  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  430 

Cited  in  note  (9  L.R.A.(N.S.)  374)  on  duty  of  railroad  trainmen  to  keep 
lookout. 

Distinguished  in  Prescott  &  N.  W.  R.  Co.  v.  Brown,  74  Ark.  609,  86  S.  W. 
809,  holding    (by  reason  of  statute)    the  burden  was  on  railroad  to  show  that 
persons  running  a  train  kept  a  constant  lookout  for  persons  and  property  on 
tracks. 
As   to   stock. 

Cited  in  Johnson  v.  Stewart,  62  Ark.  168,  34  S.  W.  889,  holding  it  duty  of  rail- 
road prior  to  act  1891  to  use  reasonable  effort  to  avoid  injury,  if  animal  discov- 
ered, or  might  have  been  discovered  with  proper  watchfulness;  St.  Louis  S.  W.  R. 
Co.  v.  Russell,  62  Ark.  185,  34  S.  W.  1059,  holding  railroad  not  liable  for  killing 
of  cattle  on  track  where  engineer  was  on  lookout,  but  fireman  was  not,  if  engineer 
in  position  to  see;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Woodworth,  1  Ind.  Terr.  23,  35  S. 
W.  238,  holding  railroad  not  liable  for  killing  stock  on  track,  unless  killing  was 
result  of  negligence;  St.  Louis  &  S.  F.  R.  Co.  v.  Zachary,  2  Ind.  Terr.  546,  53  S. 
W.  327,  holding  railroad  not  liable  for  killing  stock  on  track,  when  fireman  on 
lookout,  and  train  could  not  have  been  stopped  in  time  to  avoid  danger,  after  ani- 
mals discovered;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Davis,  26  Okla.  364,  109  Pac. 
551,  holding  that  railroad  was  bound  to  use  ordinary  care  to  prevent  injury 
to  mules  trespassing  on  tracks. 

Cited  in  notes  (5  L.R.A.  431)  on  doctrine  of  "last  clear  chance;"  (9  L.R.A. 
(N.S.)  348)  on  duty  of  railroad  to  fence  right  of  way;  (21  Am.  St.  Rep.  289) 
on  duty  of  railroad  company  to  animals  on  or  near  track. 

Distinguished  in  Kansas  City  Southern  R.  Co.  v.  Ingram,  80  Ark.  270,  97  S. 
W.  55,  holding  as  to  an  accident  occurring  in  Indian  Territory  where  the  cited 
case  is  not  authority  the  duty  to  lookout  was  properly  charged. 

Disapproved  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Washington,  1  C.  C.  A.  290,  4  U.  S. 
App.  121,  49  Fed.  351,  holding  railroad  bound  to  exercise  reasonable  care  to  dis- 
cover stock  on  track  and  to  avoid  injury  after  they  are  discovered. 
Contributory    negligence    of    person    Injnred    on    railroad    track. 

Cited  in  St.  Louis  S.  W.  R.  Co.  v.  Dingman,  62  Ark.  252,  35  S.  W.  219,  and 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Leathers,  62  Ark.  240,  35  S.  W.  216  (dissenting 
opinion),  majority  holding  contributory  negligence  defense  to  action  under  statute 
making  railroad  liable  for  killing  person  on  track  through  failure  to  keep  lookout. 

5  L.  R.  A.  430,  CONTINENTAL  INS.  CO.  v.  MUNNS,  120  Ind.  30,  22  N.  E.  78. 
Insurance;   estoppel  to  set  up   forfeiture  against  assignee  of  policy. 

Cited  in  Hall  v.  Niagara  F.  Ins.  Co.  93  Mich.  189,  18  L.  R.  A.  139,  32  Am.  St. 
Rep.  497,  53  N.  W.  727,  holding  assent  of  insurer  to  assignment  of  policy  to 
grantee  estops  insurer  from  setting  up  prior  forfeiture;  Furbush  v.  Consolidated 
Patrons,  140  Iowa,  245,  118  N.  W.  371,  holding  insurance  company  could  not 
set  up  as  against  an  assignee  of  policy,  with  insurer's  consent,  that  the  risk  had 
been  increased  by  the  installation  of  a  gas  plant  after  the  policy  issued  where 
plaintiff's  vendor  had  been  assured  that  it  would  make  no  difference  as  to  the 
risk;  Bayless  v.  Merchants'  Town  Mut.  Ins.  Co.  106  Mo.  App.  688,  80  S.  W.  289, 
holding  a  policy  of  insurance  could  not  be  forfeited  in  the  hands  of  an  assignee 
thereof,  for  a  breach  of  an  inventory  clause,  where  policy  assigned  with  consent  of 
insurer. 

Cited  in  notes  (18  L.R.A.  136)  on  effect  of  assignor's  acts  of  forfeiture  upon 
assignee;  (22  Am.  St.  Rep.  330)  on  estoppel  to  set  up  forfeiture  against  assignee 
<of  policy. 


5  L.R.A.  430]  L.  R.  A.  CASES  AS  AUTHORITIES.  862 

Assignment   of    policy. 

Cited  in  New  v.  German  Ins.  Co.  5  Ind.  App.  86,  31  N.  E.  475,  holding 
assignment  of  policy  to  grantee  of  assured  inoperative  without  consent  of  as- 
sured; Manchester  F.  Assur.  Co.  v.  Glenn,  13  Ind.  App.  371,  55  Am.  St.  Rep. 
225,  41  N.  E.  847,  holding  assignment  of  policy  is  creation  of  new 
contract,  basis  of  which  is  terms  of  old  policy;  Virginia-Carolina  Chemical 
Co.  v.  Sundry  Ins.  Co.  108  Fed.  456,  and  Bullman  v.  North  British  &  M.  Ins.  Co. 
159  Mass.  122,  34  N.  E.  169,  holding  such  assignment  is  as  if  new  policy'issued  to 
assignee,  and  entitles  latter  to  sue  thereon  in  his  own  name ;  Moffitt  v.  Phenix  Ins. 
Co.  11  Ind.  App.  237,  38  N.  E.  835,  holding  transfer  of  property  with  oral  assent 
of  insurer  creates  new  contract,  although  consent  not  subsequently  indorsed  on 
policy;  American  Mut.  L.  Ins.  Co.  v.  Bertram,  163  Ind.  57,  64  L.R.A.  938,  70  N.  E. 
258,  sustaining  recovery  of  premiums  paid  by  bona  fide  assignee  of  void  policy; 
American  Mut.  L.  Ins.  Co.  v.  Bertram,  163  Ind.  57,  64  L.R.A.  935,  70  N.  E. 
258,  holding  the  assignee  of  a  policy  of  insurance  void  because  of  want  of  an 
insurable  interest  in  the  assignor  might  recover  premiums  paid  by  him  after 
being  assured  by  agent  and  officers  of  insurance  company  of  his  right  to  hold 
the  policy;  Miles  Lamp  Chimney  Co.  v.  Erie  F.  Ins.  Co.  164  Ind.  185,  73  N.  E, 
107,  on  policy  of  insurance  as  having  no  validity  in  the  hands  of  an  assignee 
without  the  consent  or  approval  of  the  insurer. 

Cited  in  note  (5  L.  R.  A.  414)  on  what  constitutes  novation. 

Distinguished  in  Franklin  Ins.  Co.  v.  \Volff,  23  Ind.  App.  553,  54  N.  E.  772, 
holding  assignment  of  policy  to  mortgagee  as  security,  with  consent  of  insurer, 
not  new  contract;  Franklin  Ins.  Co.  v.  Wolff,  23  Ind.  App.  557,  54  N.  E.  772,  hold- 
ing rule  that  such  assignment  is  new  contract  not  applicable  when  policy  void  in 
its  inception. 
Effect  of  failure  to  disclose  fact  material  to  risk  in  absence  of  inquiry. 

Cited  in  Arthur  v.  Palatine  Ins.  Co.  35  Or.  31,  76  Am.  St.  Rep.  450,  57  Pac. 
62,  holding  omission  not  breach  of  condition  making  policy  void  in  case  of  con- 
cealment or  misrepresentation  of  material  fact;  German  Mut.  Ins.  Co.  v.  Xie- 
wedde,  11  Ind.  App.  627,  39  N.  E.  534,  holding  failure  of  insurer  to  inquire  as  to 
encumbrances  waives  right  of  forfeiture  on  account  of  existing  encumbrance; 
Indiana  Ins.  Co.  v.  Pringle,  21  Ind.  App.  569,  52  N.  E.  821,  holding  failure  to  dis- 
close encumbrance,  contrary  to  condition  of  policy,  avoids  same,  although  agent 
taking  application  makes  no  inquiry  as  to  encumbrances;  Milwaukee  Mechanics' 
Ins.  Co.  v.  Nievvedde,  12  Ind.  App.  147,  39  N.  E.  757,  holding,  although  assured 
not  asked  for  information  as  to  encumbrances,  subsequent  execution  of  chattel 
mortgage,  without  consent  of  insurer,  avoids  policy;  Aetna  Ins.  Co.  v.  Holcomb, 
89  Tex.  411,  34  S.  W.  915,  holding  failure  to  inquire  as  to  encumbrances  not 
waiver  of  right  to  declare  forfeiture  because  of  existing  mortgage. 
False  entry  in  application  by  agent  of  insurer. 

Distinguished  in  Bowlus  v.  Phenix  Ins.  Co.  133  Ind.  118,  20  L.  R.  A.  404,  32  N. 
E.  319,  holding  where  agent  fails  to  report  mortgage  according  to  representation 
of  assured,  subsequent  renewal  of  mortgage  will  not  avoid  policy. 
Avoidance   of   policy   for   breach   of   promissory   warranty. 

Cited  in  Continental  Ins.  Co.  v.  Vanlue,  126  Ind.  411,  10  L.  R.  A.  844,  26  N.  E. 
119,  holding  legal  encumbrance  created  or  suffered  in  violation  of  terms  of  con- 
tract will  defeat  action  on  policy. 

5  L.  R.  A.  432,  SONDHEIM  v.  GILBERT,  117  Ind.  71,  10  Am.  St.  Rep.  23,  18  N. 

E.  687. 
Knowledge   of,   or  participation   in,   illegal   contract. 

Cited  in  Marion  Trust  Co.  v.  Crescent  Loan  &  Invest.  Co.  27  Ind.  App.  459,  87 


863  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  432 

Am.  St.  Rep.  257,  61  N.  E.  688,  upholding  recovery  on  insolvent  building  associ- 
ation's note,  proceeds  of  which  were  illegally  applied  with  lender's  knowledge; 
Singleton  v.  Bank  of  Monticello,  113  Ga.  530,  38  S.  E.  947;  Jackson  v.  City  Nat. 
Bank,  125  Ind.  350,  9  L.  R.  A.  659,  25  X.  E.  430;  Wright  v.  Hughes,  119  Ind.  330, 
12  Am.  St.  Rep.  412,  21  N.  E.  907, — holding  mere  knowledge  of  lender  of  borrow- 
er's illegal  purpose  will  not  invalidate  contract;  Appleton  v.  Maxwell,  10  N.  M. 
759,  55  L.R.A.  96,  65  Pac.  158,  holding  lender  sharing  in  gambling  transaction 
cannot  recover;  Plank  v.  Jackson,  128  Ind.  426.  26  N.  E.  568,  holding  lender  inter- 
ested in  or  assisting  in  bringing  parties  to  illegal  contract  together  cannot  re- 
cover; Pape  v.  Wright,  116  Ind.  504,  19  X.  E.  459,  holding  innocent  broker  entitled 
to  recover  although  his  principal  acts  illegally;  Appleton  v.  Maxwell,  10  X.  M. 
759,  55  L.R.A.  93,  65  Pac.  158,  holding  a  party  making  a  loan  of  money  with  the 
understanding  it  is  to  be  used  in  a  gambling  transaction  cannot  recover. 
Partner's  implied  authority  to  execute  firm  note. 

Cited  in  Schellenbeck  v.  Studebaker,  13  Ind.  App.  440,  55  Am.  St.  Rep.  240,  41 
N.  E.  845,  holding  partner  in  nontrading  firm  has  no  implied  authority  to  execute 
partnership  note,  in  absence  of  necessity  or  usage. 

Cited  in  note    (48  Am.  St.  Rep.  438,  439)    as  to  when  partnership  is  bound 
by  loan  effected  by  one  member. 
Rig-fats   of  bona   fide   bolder  for   value   as   affected   by   statute. 

Cited  in  Irwin  v.  Marquett,  26  Ind.  App.  384,  84  Am.  St.  Rep.  297,  59  X.  E.  38, 
holding  gaming  check  void  in  hands  of  bona  fide  holder  for  value  under  statute; 
Spray  v.  Burk,  123  Ind.  568,  24  X.  E.  588,  holding  it  doubtful  whether  maker  of 
note  given  for  gambling  debt,  inducing  holder  to  purchase  by  false  representations 
that  it  was  all  right,  is  estopped  from  setting  up  invalidity  under  statute;  Voreis 
v.  Xussbaum,  131  Ind.  270,  16  L.  R.  A.  47,  31  X.  E.  70,  holding  note  given 'by 
married  woman  as  surety  void  as  to  her  in  hands  of  innocent  purchaser  for  value ; 
Bohon  v.  Brown,  101  Ky.  362,  38  L.  R.  A.  505,  72  Am.  St.  Rep.  420,  41  S.  W.  273. 
holding  note  invalid  by  statute  not  good  in  hands  of  innocent  purchaser  for 
value;  Schmueckle  v.  Waters,  125  Ind.  268,  25  X.  E.  281,  holding  note  on  wager- 
ing contract  void  between  parties,  but  enforceable  in  hands  of  innocent  pur- 
chaser for  value:  Lynchburg  Xat.  Bank  v.  Scott  Bros.  91  Va.  656,  29  L.  R.  A.  829, 
50  Am.  St.  Rep.  860,  22  S.  E.  487,  holding  usurious  negotiable  paper  good  in 
hands  of  innocent  purchaser  for  value;  Pape  v.  Hartwig,  23  Ind.  App.  336,  55  X. 
E.  271,  and  Tescher  v.  Merea,  118  Ind.  588,  21  X.  E.  316,  holding  note  valid  on 
face  good  in  hands  of  innocent  holder  for  value,  although  taken  in  violation  of 
patent  rights  statute;  McMann  v.  Walker,  31  Colo.  263,  72  Pac.  1055,  sustaining 
bona  fide  holder's  recovery  on  note  executed  to  foreign  corporation  not  filing  cer- 
tificate; Citizens'  State  Bank  v.  Xore,  67  Xeb.  71,  60  L.R.A.  738,  93  X.  W.  160, 
sustaining  bona  fide  holder's  right  to  recover  on  note  given  unlicensed  practition- 
er for  medical  services;  McMann  v.  Walker.  31  Colo.  263,  72  Pac.  1055,  holding 
the  note  of  a  foreign  corporation  which  had  not  complied  with  laws  of  the  state 
to  do  business  is  valid  in  the  hands  of  a  bona  fide  purchaser  before  maturity; 
Citizens'  State  Bank  v.  Xore,  67  Xeb.  71,  60  L.R.A.  738,  93  N.  W.  160,  2  A.  & 
E.  Ann.  Cas.  604,  holding  a  note  given  for  medical  services  by  an  unlicensed 
practitioner  may  be  recovered  by  a  bona  fide  purchaser,  notwithstanding  a 
statute  prohibiting  the  practice  of  medicine  without  a  license;  Gray  v.  Boyle, 
55  Wash.  582.  133  Am.  St.  Rep.  1042.  104  Pac.  828,  holding  a  note  given  for 
insurance  premiums  for  a  less  sum  than  the  full  premium  was  valid  in  the  hands 
of  a  bona  fide  holder  notwithstanding  a  statute  prohibiting  such  discrimina- 
tions: Arnd  v.  Sjoblom,  131  Wia.  044.  10  L.R.A.fX.S.)  844,  111  X.  W.  666,  11 
A.  &  E.  Ann.  Cas.  1179,  holding  a  bona  fide  holder  for  value  of  a  note  given  for 


5  L.R.A.  432]  L.  R.  A.  CASES  AS  AUTHORITIES.  864 

lightning  rods  could  recover  thereon  although  the  note  did  not  contain  on  its 
face  an  indication  of  the  consideration  as  required  by  statute;  Alexander  v. 
Hazelrigg,  123  Ky.  684,  97  S.  W.  353,  holding  that  under  statute  declaring 
gambling  debts  void,  a  note  given  therefor  is  void  ab  initio  and  is  of  no  effect 
in  the  hands  of  an  innocent  purchaser  notwithstanding  the  negotiable  instru- 
ment law. 
Conflict  of  laws  as  to  contracts. 

Cited  in  Parker  v.  Moore,  53  C.  C.  A.  372,  115  Fed.  802,  holding  contract,  valid 
where  made,  not  enforceable  in  another  state  if  contrary  to  its  morals,  public 
policy,  or  statutes;  Vanderpoel  v.  Gorman,  3  Misc.  60,  22  N.  Y.  Supp.  541,  hold- 
ing assignment,  valid  where  executed,  not  enforceable  in  another  state,  if  against 
its  public  policy  or  statutes;  Brown  v.  Gates,  120  Wis.  352,  97  N.  W.  221,  1  A. 

6  E.  Ann.  Cas.  85;  Midland  Steel  Co.  v.  Citizens'  Nat.  Bank,  34  Ind.  App.  114, 
72  N.  E.  290, — holding  the  liability  of  the  maker  of  a  note  payable  in  another 
state  is  determined  according  to  the  laws  of  such  state. 

Cited  in  notes   (64  L.R.A.  162)   on  conflict  of  laws  as  to  gambling  and  lottery 
contracts;    (55  Am.  St.  Rep.  775)    on  enforcement  of  contract  outside  of  juris- 
diction where  made. 
Construction   of   penal   statutes. 

Cited  in  Boyce  v.  O'Dell  Commission  Co.  109  Fed.  761,  holding  "bucket  shop" 
gambling  transactions  not  a  game  within  gaming  statute;  Dows  v.  Glaspel,  4  N. 
D.  268,  60  N.  W.  60,  holding  margins  in  gambling  transactions  not  recoverable 
under  Minnesota  statute;  Hanks  v.  Brown,  79  Iowa,  563,  44  N.  W.  811,  holding 
criminal  statutes  must  be  strictly  construed. 
Agreements  declared  wagering  contracts. 

Cited  in  Nave  v.  Wilson,  12  Ind.  App.  42,  38  N.  E.  876 ;  Pearce  v.  Dill,  149  Ind. 
145,  48  N.  E.  788;  Plank  v.  Jackson,  128  Ind.  426,  26  N.  E.  568;  Davis  v.  Davis, 
119  Ind.  518,  21  N.  E.  1112, — holding  agreement  for  sale  of  commodity  neither  in- 
tended to  be  delivered  nor  paid  for,  a  wagering  contract;  Lancaster  v.  McKinley, 
33  Ind.  App.  451,  67  N.  E.  947,  holding  under  a  statute  providing  for  the  re- 
covery of  money  or  property  lost  by  betting  on  any  game,  does  not  authorize  a 
recovery  of  money  lost  in  bucket-shop  transactions;  Wilson  v.  National  Fowler 
Bank,  47  Ind.  App.  692,  95  N.  E.  269,  holding  that  note  given  to  cover  losses  in 
bucket  shop  speculation  is  void  in  hands  of  original  parties;  Western  U.  Teleg. 
€o.  v.  State,  165  Ind.  511,  3  L.R.A.  (N.S.)  162,  76  N.  E.  100,  6  A.  &  E.  Ann.  Caa. 
380,  on  option  contracts  as  being  void  at  common  law. 

Cited  in  footnote  to  Booth  v.  People,  50  L.  R.  A.  762,  which  sustains  statute 
making  unlawful,  options  for  sale  of  commodities  which  have  been  subject  of  gam- 
bling operations. 

Cited  in  notes  (9  L.  R.  A.  657)  on  validity  of  contract  remotely  connected  with 
illegal  transaction;  (12  L.R.A.  121)  on  gambling  contract;  (15  Am.  St.  Rep. 
167)  on  wagering  contracts;  (119  Am.  St.  Rep.  174,  175,  176)  on  defenses  to  ob- 
ligations given  for  gambling  debts;  (10  Eng.  Rul.  Cas.  476)  on  validity  of  con- 
tract for  sale  and  future  delivery  of  commodity  to  be  procured  by  seller. 

Distinguished  in  Ives  v.  Boyce,  85  Neb.  327,  25  L.R.A.(N.S.)  160,  123  N.  W. 
318,  holding  the  sale  and  purchase  for  future  delivery  of  stocks  with  the  in- 
tention that  there  should  be  no  delivery  but  a  settlement  by  the  payment  of  the 
difference  in  prices  does  not  constitute  a  game  of  hazard. 

5  L.  R.  A.  436,  LANCASTER  COUNTY  v.  FULTON,  128  Pa.  48,  18  Atl.  384. 

Report  of  decision  in  action  for  reasonable  compensation  in  162  Pa.  294,  29  Atl. 
763,  Affirming  10  Lane.  L.  Rev.  81. 


*;.>  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  439 

Contracts    for    extra    compensation    to     public    officer. 

Cited  in  Dorsett  v.  Garrard,  85  Ga.  737,  11  S.  E.  768,  holding  county  commis- 
sioner not  entitled  to  charge  commission  for  selling  real  estate  for  county ;  Russell 
v.  Luzerne  County,  7  Kulp,  279,  3  Pa.  Dist.  R.  493,  denying  county's  liability  to 
-clerk  of  count}-  officers  for  extra  services  rendered  out  of  office  hours;  Pittsburg 
v.  Goshorn,  230  Pa.  221,  79  Atl.  505,  on  unenforcibility  of  agreement  for  greater 
compensation  of  public  officer  where  compensation  is  fixed  by  statute;  Delaware 
County  v.  Makiver,  11  Del.  Co.  Rep.  293,  to  the  point  that  agreement  to  pay  sal- 
aried officer  extra  compensation  is  void;  Fayette  County  v.  County  Comrs.  35  Pa. 
Co.  Ct.  403,  18  Pa.  Dist.  R.  219,  holding  a  county  solicitor  who  has  been  voted  an 
annual  salary  cannot  be  allowed  compensation  for  extra  services;  Brown  v. 
Wingert,  38  Pa.  Co.  Ct.  483,  holding  that  agreement  to  pay  salaried  public 
officer  extra  compensation  is  void. 

Cited  in  footnote  to  Buck  v.  Eureka,  30  L.  R.  A.  409,  which  holds  void,  contract 
to  pay  city  attorney  compensation  other  than  salary  for  conducting  litigation  for 
<5ity. 

Cited  in  notes   (6  L.R.A.  615)   on  contracts  against  public  policy;    (26  L.R.A. 
(N.S. )    290)    on  applicability  to  nonconstitutional  officer  of  constitutional  pro- 
vision against  increase  of  salary  during  term. 
•Compensation   for  services   by   public   officer   rendered  after  term. 

Cited  in  Buck  v.  Eureka,  109  Cal.  521,  30  L.  R,  A.  414,  42  Pac.  243,  holding  city 
attorney  cannot  recover,  under  void  contract  for  extra-  compensation  made  during 
term  of  office,  for  services  rendered  after  expiration  of  term. 
Who   are    "public   officers." 

Cited  in  Converse  County  v.  Burns,  3  Wyo.  696,  29  Pac.  894,  holding  county 
treasurer  is  "public  officer"  within  constitutional  provision  against  change  in  sal- 
ary of  public  officers  during  term;  Richie  v.  Philadelphia,  37  Pa.  Super.  Ct.  195, 
35  Pa.  Co.  Ct.  312,  17  Pa.  Dist.  R.  80,  holding  real  estate  assessors  were  "public 
officers,"  within  meaning  of  constitution. 

Cited  in  note   (17  L.  R.  A.  248)   on  who  are  public  officers. 
Scope  of  dnties  of  public  officer. 

Cited  in  Buck  v.  Eureka,  109  Cal.  519,  30  L.  R.  A.  414,  42  Pac.  243,  holding  that 
statute  making  it  duty  of  city  attorney  to  attend  "all  suits"  in  which  city  in- 
terested means  suits  in  all  courts. 

5  L.  R,  A.  439,  PHILADELPHIA  &  R.  R.  CO.  v.  HUBER,  128  Pa.  63,  18  Atl.  334. 
Master's    duty    respecting    appliances. 

Cited  in  Miller  v.  Inman,  40  Or.  166,  66  Pac.  713,  holding  master  liable  for 
death  of  servant  killed  by  being  caught  by  projecting  bolt  on  shaft;  McConnell 
v.  Pennsylvania  R.  Co.  223  Pa.  451,  72  Atl.  849,  on  duty  of  railroad  company  to 
provide  employees  with  a  safe  place  to  work. 

Cited  in  footnotes  to  Lehigh  &  W.  Coal  Co.  v.  Hayes,  5  L.R.A.  441,  which 
holds  master  furnishing  ordinary  appliances  not  liable  for  failure  to  furni.-h 
unusual  one;  Crawford  v.  United  R.  &  E.  Co.  70  L.R.A.  489,  which  holds  street 
car  company  liable  for  injury  to  employee  by  defect  in  car  due  to  custom  in 
leaving  it  for  several  hours  of  night  in  public  street  after  inspection,  without 
rule  or  regulation  for  guarding  from  negligent  or  wanton  injury. 
Negligence  is  question  for  Jury. 

Cited  in  Dooner  v.  Delaware  &  H.  Canal  Co.  164  Pa.  31,  30  Atl.  269,  holding, 
where  inspector  of  cars  young  and  incompetent,  and  freight  car  is  received  from 
Another  company  without  grab-iron  or  ladder,  question  of  negligence  for  jury. 
L.R.A.  Au.  Vol.  I.— 55. 


5  L.R.A.  439]  L.  E.  A.  CASES  AS  AUTHORITIES.  866 

Servant's  knowledge  of  defects. 

Cited  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Slinkard,  17  Tex.  Civ.  App.  589, 
44  S.  W.  35,  holding  servant  chargeable  only  with  ordinary  care  in  ascertainment 
of  danger  incident  to  employment,  and  not  precluded  from  recovery  because  he 
might  have  gained  knowledge  of  danger. 

Cited  in  note  (49  L.  R.  A.  47)  on  duty  of  servant  to  quit  employment  when  ex- 
posed to  unusual  danger. 

Distinguished  in  Bemisch  v.  Roberts,  143  Pa.  10,  28  W.  N.  C.  172,  21  Atl.  998, 
holding,  when  defect  in  appliance  is  so  manifest  that  servant  is  bound  to  notice 
and  remedy  it,  he  cannot  recover  for  injury  resulting  therefrom. 
Defects  incident   to  risk  of  employment. 

Distinguished  in  Bradbury  v.  Kingston  Coal  Co.  157  Pa.  243,  33  W.  N.  C.  97, 
27  Atl.  400,  holding,  when  defect  not  discoverable  before  accident,  and  same  is 
unknown,  notwithstanding  system  of  inspection,  accident  is  incident  to  risk. 
When  master  chargeable   with   knowledge. 

Distinguished  in  Mensch  v.  Pennsylvania  R.  Co.  150  Pa.  610,  17  L.  R.  A.  453, 
30  W.  N.  C.  552,  25  Atl.  31,  holding  railroad  company  not  chargeable  with  knowl- 
edge of  defect  in  car,  where  system  of  inspection  maintained,  and  inspectors  not 
incompetent. 
Recovery    for    death    on    circumstantial    evidence. 

Cited  in  note  (2  L.R.A. (N.S.)  905)  on  recovery  for  death  on  circumstantial 
evidence. 

5  L.  R.  A.  441,  LEHIGH  &  W.  COAL  CO.  v.  HAYES,  128  Pa.  294,  15  Am.  St. 

Rep.  680,  18  Atl.  387. 
Degree    of   care   required    of   master    in    selecting   appliances. 

Followed  in  Norton  v.  Van  Wickle,  12  Luzerne  Leg.  Reg.  Rep.  119,  holding 
mine  owner  liable  for  injury  to  employee  working  in  pocket  from  draw  of  coal, 
where  usual  methods  were  used. 

Cited  in  Innes  v.  Milwaukee,  96  Wis.  174,  70  N.  W.  1064,  holding  master  re- 
quired to  furnish  such  appliances  only  as  are  reasonably  safe,  and  in  general  use; 
Dooner  v.  Delaware  &  H.  Canal  Co.  171  Pa.  603,  33  Atl.  415,  holding  railroad 
providing  freight  car  without  ladder,  steps,  or  hand-holds  not  negligent,  when 
such  cars  in  common  use;  Chicago  &  G.  W.  R.  Co.  v.  Armstrong,  62  111.  App. 
234,  holding  master  required  to  furnish  only  such  appliances  as  are  ordinarily 
sufficient  for  purpose  used,  and  such  as,  with  reasonable  care,  can  be  used  with- 
out more  danger  than  is  ordinarily  incident  to  business;  McCarthy  v.  Boston 
Duck  Co.  165  Mass.  169,  42  N.  E.  568,  holding  it  within  discretion  of  court 
to  exclude  evidence  of  safer  appliance,  without  offer  to  show  it  was  commonly 
used;  Titus  v.  Bradford,  B.  K.  R.  Co.  136  Pa.  618,  26  W.  N.  C.  474,  20  Am. 
St.  Rep.  944,  20  Atl.  517,  holding  use  of  broad  cars  on  narrow-gauge  trucks  not 
negligence  warranting  recovery  for  death  of  brakeman. 

Cited  in  footnote  to  Duntley  v.  Inman,  P.  &  Co.  59  L.  R.  A.  785,  which  denies 
liability  for  failure  to  furnish  better  belt  shifter  where  that  furnished  was 
safe  if  properly  used. 

Cited  in  notes  (48  L.R.A.  70)  on  liability  of  employer  for  injuries  to  servant 
from  want  of  blocking  at  switches;  (16  L.R.A. (N.S. )  133)  on  furnishing  servant 
article  in  general  use  as  measure  of  master's  duty;  (65  Am.  St.  Rep.  741)  on 
duty  of  railroads  to  furnish  improved  appliances;  (87  Am.  St.  Rep.  568)  on  duty 
of  mine  owners  as  to  use  of  appliances  similar  to  those  in  other  mines;  (98 
Am.  St.  Rep.  293)  on  liability  to  servant  for  injuries  due  to  defective  machinery 
and  appliances;  (37  L.  ed.  U.  S.  728)  on  duty  of  master  as  to  machinery  and  ap- 
pliances. 


867  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  444 

! 

Disapproved  in  effect  in  Geno  v.  Fall  Mountain  Paper  Co.  68  Vt.  574,  35  Atl. 
475,  holding  ''common  use"  of  appliance  not  defense  to  action  for  injury  from 
its  use,  if  not  such  as  would  commend  it  to  prudent  man  in  like  circumstances. 
Xes-lig-ence  not  Imputed  from  fact  of  injury. 

Cited  in  Ash  v.  Verlenden  Bros.  154  Pa.  249,  32  W.  N.  C.  199,  26  Atl.  374, 
holding  negligence  cannot  be  presumed  from  mere  fact  of  injury  from  machine 
properly  constructed;  Sappenfield  v.  Main  Street  &  Agri.  Park  R.  Co.  91  Cal.  57, 

27  Pac.  590,  holding  appliance  not  obviously  dangerous,  and  proved  safe  from 
use  for  long  time,  may  be  continued  without  imputation  of  negligence. 
Liability    of    master    for    latent    defects. 

Cited  in  Johnson  v.  Boston  &  M.  Consol.  Copper  &  S.  Min.  Co.  16  Mont.  178, 
40  Pac.  298,  holding  master  required  to  furnisJi  reasonably  safe  and  suitable  ma- 
chinery, but  not  liable  for  latent  defects. 
Master's   liability    when    place   to   work    made    dangerous    by    servants. 

Cited  in  Devlin  v.  Phoenix  Iron  Co.  182  Pa.  114,  44  W.  N.  C.  431,  37  Atl.  927, 
holding  accumulation  on  floor  of  iron  foundry  of  tools  and  materials  used  by 
workmen  not  negligence  of  master. 

Cited  in  footnote  to  Tradewater  Coal  Co.  v.  Johnson,  61  L.  R.  A.  161,  which 
holds  master  liable  for  failure  of  loaders  to  remove  loose  coal  hanging  in  mine 
rendering  it  unsafe  for  other  employees. 

5  L.  R.  A.  442,  DEAN  v.  ST.  PAUL  UNION  DEPOT  CO.  41  Minn.  360,  16  Am 

St.  Rep.  703,  43  N.  W.  54. 
Dnty  to  keep  premises  safe  for  customers. 

Cited  in  Corrigan  v.  Elsinger,  81  Minn.  47,  83  N.  W.  492,  holding  storekeeper 
inviting  customers  upon  premises  must  keep  them  in  reasonably  safe  condition; 
Stuelpnagel  v.  Paper,  C.  &  Co.  Ill  Minn.  5,  126  N.  W.  281,  holding  that  ware- 
house owner  is  liable  to  patron  for  injury  resulting  from  unguarded  condition 
of  platform  used  in  weighing  goods. 

Cited  in  note   (86  Am.  St.  Rep.  509,  513,  514,  516,  520,  521),  on  liability  of 
property  owner  for  nuisance  which  he  did  not  create. 
Liability  for  injury   by  third  person. 

Cited  in  footnotes  to  Henderson  v.  Dade  Coal  Co.  40  L.  R.  A.  95  which  denies 
liability  of  persons  having  custody  of  convict  for  damages  for  crime  commit- 
ted by  him  through  failure  to  keep  safely  confined;  Krantz  v.  Rio  Grande  W.  R. 
Co.  30  L.  R.  A.  297,  which  denies  carrier's  liability  for  unprovoked  assault  on 
passenger  after  alighting  at  station,  without  effort  by  ticket  agent  to  prevent 
same;  Exton  v.  Central  R.  Co.  56  L.  R,  A.  509,  which  holds  carrier  liable  to 
passenger  at  station  for  injury  by  scuffling  cabmen. 
Liability  for  servant's  torts. 

Cited  in  Cressy  v.  Republic  Creosoting  Co.  108  Minn.  355,  122  N.  W.  484, 
holding  company  furnishing  creosoted  blocks  to  city  liable  for  assault  by  its 
engineer  on  city's  inspector;  Swinarton  v.  Le  Boutillier,  31  Abb.  N.  C.  283, 

28  N.  Y.  Supp.  53,  holding  that  storekeeper  was  liable  to  customer  for  loss  of 
eye  resulting  from  mischievous  snapping  of  pin  by  cash  boy  where  habit  existed 
for  some  months. 

Cited  in  note  (33  L.R.A.  (X.S.)  434)  on  liability  of  union  depot  company  for 
negligence  of  employees. 

5  L.  R.  A.  444,  TERRITORY  v.  DANIELS,  6  Utah,  288,  22  Pac.  159. 
Taking  of  private   property  for  public   line. 

Cited  in  Kaysville  City  v.  Ellison,  18   Utah,  107,  43  L.  R.  A.  82,  72  Am.  St. 


5  L.R.A.  444]  L.  R.  A.  CASES  AS  AUTHORITIES.  868 

Rep.  772,  55  Pac.  386,  and  Ellison  v.  Linford,  7  Utah,  169,  25  Pac.  744,  holding 
municipal  corporation  cannot  tax  unbenefited  farm  lands  for  municipal  pur- 
poses; Linford  v.  Ellison,  155  U.  S.  506,  39  L.  ed.  240,  15  Sup.  Ct.  Rep.  179, 
dismissing  for  want  of  jurisdiction  appeal  from  judgment  of  territorial  court 
denying  right  of  village  to  tax  farm  lands  in  unplatted  part,  unbenefited  by  mu- 
nicipal government. 

Cited  in  notes  (34  L.  R.(  A.  195,  200)  on  municipal  taxation  of  rural  lands 
within  corporate  limits. 

Distinguished  in  Cook  v.  Crandall,  7  Utah,  345,  26  Pac.  927,  upholding  tax 
where  premises  were  benefited  by  improvements  and  police  protection,  although  1 
mile  from  platted  city. 

Disapproved  in  Kimball  v.  Grantsville  City,  19  Utah,  398,  45  L.  R.  A.  637,  57 
Pac.  1,  holding  that  constitutional  provision  against  taking  private  property  for 
public   use  without   compensation   does   not   limit   state's   taxing   power. 
Powers   of  territorial   legislatures. 

Approved  in  Mackey  v.  Enzensperger,  11  Utah,  174,  39  Pac.  541  (dissenting 
opinion),  majority  upholding  territorial  act  permitting  verdict  upon  concurrence 
of  nine  jurors. 

Disapproved  in  Baca  v.  Perez,  8  N.  M.  202,  42  Pac.  162,  holding  territorial 
legislatures  have  power  of  apportioning  offices  subordinate  to  the  use  named 
by  Congress. 

5  L.  R.  A.  449,  AHERN  v.  STEELE,  115  N.  Y.  203,  12  Am.  St.  Rep.  778,  22  N. 

E.  193. 
Liability  for  nuisance  or  negligence. 

Cited  in  Morris  v.  Barrisford,  9  Misc.  15,  29  N.  Y.  Supp.  17,  holding  owner 
liable  for  injury  by  fall  of  insecure  awning;  Finkelstein  v.  Huner,  77  App.  Div. 
427,  79  N.  Y.  Supp.  334,  holding  maintenance  of  leaky  water  closet,  damaging 
neighboring  property,  nuisance;  Ackerman  v.  Cincinnati,  S.  &  M.  R.  Co.  143 
Mich.  62,  114  Am.  St.  Rep.  640,  106  N.  W.  558,  8  A.  &  E.  Ann.  Cas.  118,  hold- 
ing a  railroad  company  having  authority  to  lease  road  was  not  liable  for  acts 
done  by  the  lessee  in  the  subsequent  maintenance  and  repair  of  the  road;  Stub- 
ley  v.  Allison  Realty  Co.  124  App.  Div.  167,  108  N.  Y.  Supp.  759.  holding  the 
owner  of  a  building  was  not  liable  for  injuries  caused  by  its  collapse  while  in 
course  of  construction,  where  the  work  done  by  an  independent  contractor,  in 
the  absence  of  proof  of  negligence  in  selecting  contractor  or  adopting  plans; 
Murphy  v.  Suburban  Rapid  Transit  Co.  28  Jones  &  S.  25,  15  N.  Y.  Supp.  837, 
holding  defendants  allowing  the  approaches  to  a  bridge  to  become  defective 
were  liable  for  injuries  to  plaintiff  by  reason  thereof  a  duty  being  imposed  on 
defendant  to  maintain  such  approaches. 

Cited  in  footnote  to  Rockport  v.  Rockport  Granite  Co.  51  L.  R.  A.  779,  which 
holds  land  owner  liable  for  permitting  guy  rope  to  derrick  to  remain  stretched 
across  highway. 

Cited  in  note  (9  L.  R.  A.  717)  on  liability  for  nuisance. 
Of    lessee. 

Cited  in  Kuechenmeister  v.  Brown,  13  Misc.  141,  34  N.  Y.  Supp.  180,  holding 
lessee  liable  for  maintaining  nuisance;  Lewy  Art  Co.  v.  Agricola,  169  Ala.  68, 
53  So.  145,  holding  that  tenant  taking  possession  of  building  is  liable  for  injury 
from  awning  which  constituted  nuisance  even  though  such  nuisance  existed  be- 
fore his  occupation,  provided  he  had  notice  of  it;  Andrus  v.  Bradley-Alderson  Co. 
117  Mo.  App.  327,  93  S.  W.  872,  holding  a  tenant  was  not  liable  for  an  injury 
to  a  servant  because  of  the  defective  condition  of  an  elevator,  where  such  ele-~ 
vator  was  used  jointly  by  the  several  tenants  of  the  building  and  was  main- 


869  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  449 

tainable  by  landlord;  Ward  v.  Hinklejnan,  37  Wash.  380,  79  Pac.  956,  hold- 
ing a  tenant  was  liable  for  the  repair  of  an  approach  connecting  the  house  with 
the  sidewalk. 

Of   lessor's    grrnntee. 

Cited  in  Lufkin  v.  Zane,  157  Mass.  121,  17  L.  R.  A.  253,  34  Am.  St.  R«p.  262, 
31  N.  E.  757,  holding  grantee  subject  to  lease  not  liable  for  nuisance  created  by 
tenant;  Delaney  v.  New  York  Polyclinic  Medical  School  &  Hospital,  69  Misc.  626, 
126  N.  Y.  Supp.  94,  holding  that  vendee  of  premises  subject  to  lease,  who  was 
never  in  possession  and  never  saw  premises  is  not  liable  to  person  injured  by 
falling  into  coal  hole  in  existence  when  purchase  made. 

Of   lessor   and   lessee. 

Cited  in  Prussak  v.  Button,  30  App.  Div.  68,  51  N.  Y.  Supp.  761,  holding 
lessor  and  lessee  liable  for  explosion  of  powder  magazine. 

Cited  in  note  (61  L.  R.  A.  953)  on  liability  as  between  owner  and  lessee  for 
safety  of  wharf  or  dock. 

Distinguished  in  Woods  v.  Miller,  30  App.  Div.  235,  52  N.  Y.  Supp.  217,  hold- 
ing neither  lessor  nor  tenant  liable  to  fireman  stepping  over  party  wall  from 
roof  of  adjoining  house  and  falling  down  air  shaft. 

Of    lessor    to    tenant. 

Cited  in  Hines  v.  Willcox,  96  Tenn.  161,  34  L.  R.  A.  832,  54  Am.  St.  Rep. 
823,  33  S.  W.  914,  holding  landlord  liable  to  tenant  for  defect  existing  at  time 
of  lease,  discoverable  by  reasonable  diligence;  Canavan  v.  Stuyvesant,  7  Misc. 
118,  27  N.  Y.  Supp.  413,  holding  landlord  of  tenement  liable  for  failure  to  cover 
air  shaft;  Metzger  v.  Schultz,  16  Ind.  App.  459,  59  Am.  St.  Rep.  323,  43  N.  E. 
886,  holding  lessor  without  knowledge  of  latent  defect  in  plumbing  done  by  for- 
mer tenant  not  liable  for  gas  explosion;  Lindwall  v.  May,  111  App.  Div.  459,  97 
N.  Y.  Supp.  821,  holding  tenant  might  recover  damages  from  landlord  where 
building  rendered  so  unsafe  by  adjoining  excavations  that  tenant  was  compelled 
to  vacate,  it  being  possible  for  landlord  to  have  kept  building  safe  by  the  ex- 
ercise of  care. 

Of    lessor    to    third    persons. 

Cited  in  Fox  v.  Buffalo  Park,  21  App.  Div.  327,  47  N.  Y.  Supp.  788,  holding 
lessor  of  defective  grandstand  liable;  Canandaigua  v.  Foster,  156  N.  Y.  360, 
41  L.  R.  A.  557,  66  Am.  St.  Rep.  575,  50  N.  E.  971,  holding  lessor  liable  to  public 
for  failure  to  repair  sidewalk  grating  used  by  tenant;  Hofferberth  v.  Myers,  42 
App.  Div.  189.  59  N.  Y.  Supp.  88,  holding  landlord  liable  for  leaning  of  wall 
damaging  adjoining  building,  not  beginning  during  lease;  Stenberg  v.  Willcox, 
96  Tenn.  171,  34  L.  R.  A.  619,  33  S.  W.  917.  holding  landlord,  chargeable  with 
knowledge  liable  to  tenant's  boarder  for  defect  existing  at  time  of  lease  un- 
known to  boarder:  Timlin  v.  Standard  Oil  Co.  126  N.  Y.  523,  22  Am.  St.  Rep. 
84-T.  27  X.  E.  786,  holding  lessor,  chargeable  with  knowledge  at  time  of  lease  of 
nuisance  dangerous  to  public  or  adjoining  owner,  liable;  Hungerford  v.  Bent, 
55  Hun,  6,  8  N.  Y.  Supp.  614.  holding  owner  knowing  of  defect  at  time  of  lease 
liable  for  injury  to  passerby;  Schaefer  v.  Fond  du  Lac,  99  Wis.  339,  41  L.  R. 
A.  289  74  N.  W.  810,  holding  lessor  of  street  railroad  with  knowledge  of  exist- 
ing defect  liable  to  stranger;  Schmidt  v.  Cook,  12  Misc.  453,  33  N.  Y.  Supp. 
024.  holding  lessor,  chargeable  with  knowledge  of  nuisance,  liable  for  injury  to 
tenant's  child;  Babbage  v.  Powers,  26  N.  Y.  S.  R.  801,  7  N.  Y.  Supp.  306;  Xorl- 
inp  v.  Allee,  37  N.  Y.  S.  R.  411,  13  N.  Y.  Supp.  791;  Miller  v.  New  York,  L.  & 
W.  R.  Co.  125  X.  Y.  123.  26  N.  E.  35, — holding  lessor  out  of  possession  not  liable 
for  lessee's  failure  to  repair;  Sterger  v.  Van  Sicklen,  132  X.  Y.  501,  16  L.  R.  A. 
641,  28  Am.  St.  Rep.  594,  30  N.  E.  987,  holding  landlord  covenanting  to  repair 


5  L.R.A.  449]  L.  R.  A.  CASES  AS  AUTHORITIES.  870 

not  liable  to  tenant's  licensee;  McKenzie  v.  Cheetham,  83  Me.  551,  22  Atl.  469, 
holding  landlord  not  liable  to  tenant's  guest  injured  by  defective  stairway; 
Curran  v.  Flammer,  49  App.  Div.  295,  62  N.  Y.  Supp.  1061,  holding  lessor  not 
covenanting  to  repair  not  liable  to  tenant's  customer  for  defect  in  sidewalk 
grating  not  existing  when  premises  leased;  Schwalbach  v.  SI •  inkle,  W.  &  K.  Co. 
97  Fed.  485,  holding  lessor  not  liable  to  employee  injured  by  use  of  unsafe  prem- 
ises by  lessee  renting  with  knowledge  thereof;  Leaux  v.  New  York,  87  App.  Div. 
403,  84  N.  Y.  Supp.  514,  holding  lessor  not  liable  to  employee  of  tenant  for 
injury  from  hole  in  sewer;  Tedescki  v.  Berger,  150  Ala.  651,  11  L.R.A.  (N.S.) 
1062,  43  So.  960,  holding  a  person  whose  home  is  adjoining  a  house  of  prostitu- 
tion is  entitled  to  an  injunction  against  the  lessor  of  the  premises  who  is  aware 
of  the  use  to  which  premises  are  put;  Washington  v.  Episcopal  Church  of  St. 
Peter's,  111  App.  Div.  403,  97  N.  Y.  Supp.  1072,  holding  the  lessor  of  a  building 
was  not  liable  to  one  falling  down  an  unguarded  elevator  shaft,  it  not  being 
shown  defect  existed  on  the  lease  of  the  building;  Uggla  v.  Brokaw,  117  App. 
Div.  590,  102  N.  Y.  Supp.  857,  holding  lessor  was  not  liable  for  personal  injuries 
to  a  traveler  on  a  street  struck  by  a  skylight  blown  from  the  building  where  at 
the  time  the  building  was  entirely  under  control  of  tenant;  Lusk  v.  Peck,  132 
App.  Div.  431,  116  N.  Y.  Supp.  1051,  holding  defendant  leasing  grounds  for 
the  exhibition  of  a  football  game  was  liable  for  injuries  received  by  a  spectator 
by  reason  of  the  defective  condition  of  the  premises  existing  at  time  lease  was 
made;  Keeler  v.  Lederer  Realty  Corp.  26  R.  I.  529,  59  Atl.  855,  holding  where 
a  landlord  demises  premises  which  are  so  out  of  repair  as  to  be  a  nuisance  he  is 
liable  for  injuries  to  a  third  person,  although  tenant  bound  to  keep  the  premises 
in  repair;  Hirschfield  v.  Alsberg,  47  Misc.  143,  93  N.  Y.  Supp.  617,  on  liability 
of  lessor  of  building  to  third  persons  for  injuries  due  to  defective  condition 
thereof;  McLaughlin  v.  Kelly,  230  Pa.  258,  79  Atl.  552,  holding  that  owner  is 
liable  to  third  person  for  injury  resulting  from  defective  sidewalk  if  defect 
existed  at  time  he  leased  premises. 

Cited  in  footnotes  to  Fellows  v.  Gilhuber,  17  L.  R.  A.  578,  which  holds  lessor 
of  hotel  not  liable  for  injury  to  guest  by  defective  awning;  Lufkin  v.  Zane,  17 
L.  R.  A.  251,  which  holds  landlord  not  liable  for  tenant's  unauthorized  use  of 
premises,  constituting  nuisance. 

Cited  in  notes  (26  L.  R.  A.  203)  on  landlord's  liability  to  third  person  for 
condition  of  premises  in  tenant's  possession;  (34  L.  R.  A.  615)  on  liability  of 
landlord  for  injuries  to  tenant's  guests  and  servants  from  defect  in  premises: 
(11  L.  R.  A.  361)  on  wilful  negligence  of  owner  of  premises  as  to  keeping  build- 
ing in  safe  condition;  (9  L.  R.  A.  799)  as  to  when  lessor  is  bound  to  keep  prem- 
ises in  repair;  (92  Am.  St.  Rep.  505,  507,  508,  514,  517,  530,  532)  on  liability 
to  third  persons  of  lessors  of  real  or  personal  property;  (15  Eng.  Rul.  Cas. 
341,  342)  on  liability  of  landlord  letting  premises  in  defective  condition. 

Distinguished  in  Matthews   v.   De   Groff,   13   App.   Div.   359,   43   N.   Y.   Supp. 
237,   holding   landlord   liable   for   coal   hole   originally   in    repair,    in   dangerous 
condition  at  beginning  of  tenant's  successive  term. 
— —  Notice   of;    when   necessary. 

Cited  in  Philadelphia  &  R.  R.  Co.  v.  Smith,  64  Fed.  682,  27  L.  R.  A.  133,  12 
C.  C.  A.  387,  28  U.  S.  App.  134,  and  Orvis  v.  Elmira,  C.  &  N.  R.  Co.  17  App. 
Div.  191,  45  N.  Y.  Supp.  367,  holding  grantee  not  liable  for  existing,  but  not 
obvious,  nuisance  until  notice  and  request  to  abate;  Van  Duzer  v.  Elmira,  C. 

6  N.  R.  Co.  75  Hun,  489,  27  N.  Y.  Supp.  474,  holding  grantee  of  premises  not 
liable  for  existing  nuisance  unless  chargeable  with  notice;    Steinke  v.  Bentley, 
6  Ind.  App.  669,  34  N.  E.  97,  holding  notice  to  abate  unnecessary  where  pur- 
chaser assisted  in  creating  nuisance ;  Graham  v.  Chicago,  I.  &.  L.  R.  Co.  39  Ind. 


871  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  464 

App.  315,  77  N.  E.  1055  (dissenting  opinion),  on  notice  of  nuisance  as  necessary 
to  create  a  liability  therefor;  Beauchamp  v.  Excelsior  Brick  Co.  143  App.  Div. 
52,  127  X.  Y.  Supp.  686,  holding  that  purchaser  of  land  upon  which  nuisance 
exists  is  not  liable  therefor  until  he  has  had  notice  and  reasonable  time  to 
abate  it. 

Cited  in  footnote  to  Philadelphia  &  R.  R.  Co.  v.  Smith,  27  L.  R.  A.  131,  which 
holds  liability  for  continuing  nuisance  created  by  another  dependent  on  prior 
notice  and  request  to  remove. 

Cited  in  note  (27  L.R.A.  (N.S.)  166)  on  necessity  of  notice  to  impose  lia- 
bility for  continuing  nuisance  created  by  predecessor. 

Distinguished  in  Vaughan  v.  Buffalo,  R.  &  P.  R.  Co.  72  Hun,  472,  25  N.  Y. 
Supp.  246,  holding  successor  to  title  of  railroad  company  liable  without  notice 
of  continuing  defect  in  original  construction  of  highway;  Valparaiso  v.  Bozarth, 
153  Ind.  539,  47  L.  R.  A.  488,  55  N.  E.  439,  holding  notice  unnecessary  before 
bringing  action  against  one  creating  nuisance. 

Disapproved  in  Martin  v.  Chicago,  R.  I.  &  P.  R.  Co.  81  Kan.  347,  27  L.R.A. 
(N.S.)  167,  105  Pac.  451,  holding  no  notice  and  request  to  abate  a  nuisance 
was  necessary  to  hold  the  lessees  of  a  railroad  liable  for  injuries  to  stock 
received  from  the  existence  of  an  excavation  not  properly  guarded,  defendant 
having  knowledge  of  its  existence. 

I, ease    of    trust    property. 

Cited  in  South  End  Warehouse  Co.  v.  Lavery,  12  Cal.  App.  453,  454,  457,  107 
Pac.  1008,  holding  where  trustees  under  a  will  were  to  stand  seized  of  the  real 
property  in  trust  to  apply  the  income  to  the  support  of  testator's  daughter 
during  her  life,  they  could  not  lease  the  estate  for  a  period  extending  beyond 
the  life  of  the  daughter. 

Distinguished  in  Re  New  York,  81  App.  Div.  32,  81  N.  Y.  Supp.  32,  denying 
power  of  trustee  under  will  to  lease  beyond  duration  of  trust. 

Ancestor's    knowledge    not    impotable    to    heirs. 

Cited  in  Rice  v.  Ward,  92  Tex.  708,  51  S.  W.  844,  holding  knowledge  of  maker 
of  deed  intended  as  mortgage  not  imputable  to  heirs. 
Damages  for  causing;  death  by  negligence. 

Cited  in  Gubbitosi  v.  Rothschilds,  37  Misc.  100,  74  N.  Y.  Supp.  775,  holding 
$200  for  death  of  six  year  old  boy  inadequate. 
Receivers  as  officers  of  conrt. 

Cited  in  Stannard  v.  Robert  H.  Reid  &  Co.  118  App.  Div.  314,  103  N.  Y. 
Supp.  521,  on  receivers  as  being  officers  of  the  court  rather  than  agents  of  the 
parties  for  whom  appointed. 

5  L.  R.  A.  464,  PRINCE  STEAM  SHIPPING  CO.  v.  LEHMANN,  39  Fed.  704. 

Report  of  later  appeal  in  50  Fed.   115. 
Stipulations    ousting    courts'*    jurisdiction. 

Cited  in  Mutual  Reserve  Fund  Life  Asso.  v.  Cleveland  Woolen  Mills,  27  C.  C. 
A.  214,  54  U.  S.  App.  290,  82  Fed.  510,  and  Healy  v.  Eastern  Bldg.  &  L.  Asso. 
17  Pa.  Super.  Ct.  393,  holding  stipulation  in  contract  that  action  shall  be  brought 
in  certain  court  invalid;  Slocum  v.  Western  Assur.  Co.  42  Fed.  236,  holding 
stipulation  for  jurisdiction  of  foreign  court  in  foreign  marine  insurance  policy 
invalid;  Knorr  v.  Bates,  14  Misc.  503,  35  N.  Y.  Supp.  1060,  holding  stipulation 
that  no  suit  shall  be  brought  on  contract  void;  The  Tampico,  151  Fed.  693,  on 
validity  of  stipulations  ousting  court's  jurisdiction;  Gough  v.  Hamburg  Ameri- 
kanische  Packetfahrt  Aktiengesellschaft,  158  Fed.  175,  holding  a  provision  in 
a  bill  of  lading  that  any  disputes  thereunder  shall  be  determined  by  the  law 


5  L.R.A.  464]  L.  R.  A.  CASES  AS  AUTHORITIES.  872 

of  a  foreign  country  does  not  prevent  an  admiralty  court  of  the  United  States 
from  taking  jurisdiction. 

5  L.  R.  A.  465,  CHENEY  v.  DUNLAP,  27  Neb.  401,  43  N.  W.  178. 
Who    may    set    up    usury. 

Cited  in  Building  &  Loan  Asso.  v.  Walker,  59  Neb.  458,  81  N.  W.  308,  and 
McKnight  v.  Phelps,  37  Neb.  859,  56  N.  W.  722,  holding  foreclosure  of  equity 
of  redemption  cannot  set  up  usury  in  mortgage  contract  in  action  to  foreclose; 
Higbee  v.  JEtna  Bldg.  &  L.  Asso.  26  Okla.  330,  109  Pac.  236,  Ann.  Gas.  1912B, 
223,  holding  that  purchaser  at  bankrupt  sale  subject  to  mortgage  cannot  ques- 
tion mortgage  because  of  usury. 

Cited  in  note  (41  L.  R.  A.  711)  on  who  may  urge  usurious  character  of  debt 
preferred  in  assignment  for  creditors. 

Distinguished  in  Male  v.  Wink,  61  Neb.  750,  86  N.  W.  472,  holding  mortgagor 
entitled  to  defense  in  spite  of  sale  of  equity  of  redemption  to  third  party: 
National  Mut.  Bldg.  &  L.  Asso.  v.  Retzman,  69  Neb.  672,  96  N.  W.  204,  holding 
the  purchaser  of  an  equity  of  redemption,  taking  subject  to  a  mortgage  and 
deducting  from  the  purchase  price  sufficient  to  pay  the  mortgage  is  not  estopped 
to  set  up  usury  as  a  defense  when  the  vendee  and  mortgagor  at  time  of  sale 
agree  that  the  encumbrance  is  usurious  and  only  enough  is  retained  out  of 
purchase  price  to  pay  the  encumbrance;  Bolen  v.  Wright,  89  Xeb.  119,  131  N. 
W.  185,  holding  that  usury  may  be  pleaded  by  partner  who  for  consideration, 
has  assumed  payment  of  firm  debt,  although  after  dissolution  he  has  renewed 
usurious  note  by  giving  note  in  his  own  name. 

5  L.  R.  A.  467,  NEWMAN  v.  BANK  OF  CALIFORNIA,  80  Cal.  368,  13  Am.  St. 

Rep.   169,  22  Pac.  261. 
Privity   of   estate. 

Cited  in  Spotts  v.  Hanley,  85  Cal.  170,  24  Pac.  738,  holding  that  suit  to  re- 
cover property  from  tenant  stops  running  of  statute  of  limitations  in  favor  of 
landlord. 
Rights  of  tenant  in   common. 

Cited  in  Homer  v.  Ellis,  75  Kan.  678,  121  Am.  St.  Rep.  446,  90  Pac.  275, 
holding  a  tenant  in  common  was  entitled  to  recover  the  possession  of  the  entire 
tract  of  land  as  against  one  in  possession  who  had  no  title  thereto  but  a  lien 
thereon  for  taxes  paid;  Keefe  v.  Doreland,  16  Mont.  20,  39  Pac.  916,  holding 
in  ejectment  for  an  undivided  interest  in  a  mining  claim  a  judgment  for  the 
entire  claim  is  erroneous;  Illinois  Steel  Co.  v.  Witsotski,  146  Wis.  571,  131 
N.  W.  848,  to  the  point  that  one  who  has  undivided  interest  in  property  is 
entitled  to  possession  against  all  persons  except  his  cotenant. 

Cited  in  note  (50  Am.  St.  Rep.  839,  842)  on  action  by  cotenant  to  recover 
possession  of  property  of  cotenancy. 

Disapproved  in  Williams  v.  Coal  Creek  Min.  &  Mfg.  Co.  115  Tenn.  580,  6 
L.R.A.  (N.S.)  714,  112  Am.  St.  Rep.  878,  93  S.  W.  572,  5  A.  &  E.  Ann.  Cas. 
822,  holding  a  tenant  in  common  was  entitled  to  recover  only  the  portion  of  the 
premises  to  which  showed  title. 

Judgment    in    favor    of    tenant    in    common    as    inuring-    to    benefit    of    co- 
tenants. 

Cited  in  Cassin  v.  Nicholson,  154  Cal.  503,  98  Pac.  190,  holding  a  recovery 
in  ejectment  by  a  tenant  in  common  against  an  adverse  claimant  operates  to- 
prevent  acquisition  of  title  by  adverse  possession  pending  the  action  as  against 
cotenants  not  suing. 


873  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  470 

5  L.  R.  A,  470,  COM.  v.  FLEMING,  130  Pa.  138,  17  Am.  St.  Rep.  763,  18  Atl. 

622. 
Situs   of   sale. 

Cited  in  Perlman  v.  Sartorius,  162  Pa.  324,  42  Am.  St.  Rep.  834,  29  Atl.  852, 
holding  sale  on  order  taken  in  Pennsylvania  for  goods  located  in  Maryland  at 
stipulated  price  without  abatement  for  freight,  sale  in  Maryland  completed  by 
delivery  to  carrier;  Halpin  v.  Kimball,  9  Kulp,  405,  holding  sale  complete  at 
situs  of  vendor,  where  goods  set  aside  and  shipped  in  pursuance  of  purchaser's 
order;  Com.  v.  Gardner,  16  Montg.  Co.  L.  Rep.  175,  holding  orders  obtained  by 
agents  in  other  counties,  sent  to  vendor,  accepted,  goods  set  apart,  and  delivered 
to  carrier,  sale  at  vendor's  situs,  though  sent  care  of  agent  at  vendee's  situs; 
Indiana  County  Licenses,  6  Pa.  Dist.  R.  363,  in  discussion  of  administration  of 
license  law  by  license  judge;  Keller  v.  State,  —  Tex.  Grim.  Rep.  — ,  1  L.R.A. 
(N.S.)  494,  87  S.  W.  669,  on  a  sale  of  goods  as  being  complete  at  the  place  of  de- 
livery to  the  carrier;  Puritan  Mfg.  Co.  v.  Roberts,  33  Pa.  Co.  Ct.  370,  on  title  of 
consignee  of  goods  as  vesting  on  a  delivery  thereof  to  the  carrier. 

Cited  in  note  (23  Eng.  Rul.  Gas.  385)  on  retention  of  title  on  conditional 
sale  of  goods,  shipped  C.  O.  D. 

Of  intoxicating-  liquors. 

Cited  in  Com.  v.  Hess,  148  Pa.  103,  17  L.  R.  A.  180,  33  Am.  St.  Rep.  810,  23 
Atl.  977,  upholding  validity  of  sales  to  parties  outside  licensed  county  on  orders 
received  within,  filled  on  credit,  by  delivery  either  by  wagon  or  rail;  Com.  v. 
Holstine,  132  Pa.  362,  19  Atl.  273,  upholding  conviction  of  driver  of  licensee, 
who  took  orders  for  and  collected  price  of  liquors  in  county  not  covered  by  em- 
ployer's license,  though  liquor  loaded  at  licensed  store;  State  v.  Mullin,  78 
Ohio  St.  369,  18  L.R.A.(N.S.)  613,  125  Am.  St.  Rep.  710,  85  N.  E.  556,  holding 
a  sale  of  intoxicating  liquor  C.  0.  D.  was  complete  at  the  place  of  delivery  to 
carrier;  State  v.  Rosenberger,  212  Mo.  655,  20  L.R.A.(N.S.)  286,  126  Am.  St. 
Rep.  580,  111  S.  W.  509,  holding  a  sale  of  intoxicating  liquor  C.  O.  D.  being 
complete  at  the  place  of  delivery  to  carrier  a  nonresident  could  not  be  con- 
victed of  a  local  option  law  in  selling  liquor  to  a  resident  of  a  local  option 
county;  Re  Washington  County  Licenses,  57  Pittsb.  L.  J.  520,  37  Pa.  Co.  Ct. 
97;  Com.  v.  Guinzburg,  46  Pa.  Super.  Ct.  493;  Com.  v.  Weinstein,  11  Del.  Co. 
Rep.  9, — to  the  point  that  sale  of  liquor  takes  place  in  county  where  delivered 
to  carrier  although  it  was  shipped  in  response  to  mail  order  C.  O.  D. ;  Merri- 
weather  v.  State,  48  Tex.  Crim.  Rep.  82,  86  S.  W.  332,  holding  a  liquor  dealer 
by  selling  intoxicating  liquors  C.  0.  D.  to  a  person  in  a  town  where  he  had  no 
license  did  not  violate  the  liquor  license  law  the  sale  being  complete  on  a 
delivery  to  the  express  company;  Jones  v.  United  States,  24  L.R.A.  (X.S. )  146, 
95  C.  C.  A.  213,  170  Fed.  3,  holding  a  retail  liquor  dealer  is  not  subject  to 
prosecution  for  carrying  on  business  without  paying  a  special  revenue  tax  by 
shipping  liquor  from  stock  C.  0.  D.  to  a  purchaser  at  another  point:  Com. 
v.  Pollak,  33  Pa.  Super.  Ct.  602,  on  sales  by  brewing  company  to  customers 
in  another  county  as  being  complete  where  liquor  is  delivered  to  carrier;  Com. 
v.  Guja,  28  Pa.  Super.  Ct.  60,  on  liquor  dealer  under  his  license  having  the 
right  to  ship  directly  to  customers  beyond  the  county  in  which  he  is  licensed. 

Cited  in  notes  (22  L.  R.  A.  426)  on  passing  of  title  to  property  by  delivery 
thereof  to  carrier  for  transportation  to  consignee  or  vendee;  (7  L.  R,  A.  184) 
on  validity  of  statutes  relating  to  imported  liquors;  (2  L.R.A. (X.S.)  383;  6 
L.R.A. (X.S.)  631)  as  to  where  title  passes  upon  shipment  of  liquor  C.  0.  D. 

Distinguished  in  Com.  v.  Munk,  1  Pa.  Super.  Ct.  483,  38  W.  N.  C.  160,  hold- 
ing agent  taking  orders  in  unlicensed  county,  accepted  and  filled  by  employer 
in  licensed  county  through  carrier,  not  guilty  of  violation  of  liquor  law. 


5  L.R.A.  470]  L.  E.  A.  CASES  AS  AUTHORITIES.  874 

Liability  of  carrier  C.  O.  D. 

Cited  in  State  v.  Cairns,  64  Kan.  786,  58  L.  R.  A.  57,  footnote,  p.  55,  68  Pac. 
621,  holding  agent  of  express  company,  who  delivers  to  consignee  and  collects 
C.  O.  D.  charges,  not  guilty  of  selling  intoxicating  liquors  though  aware  of 
character  of  contents  of  package;  Crabb  v.  State,  88  Ga.  589,  15  S.  E.  455,  hold- 
ing express  agent  delivering  whiskey  C.  O.  D.  in  county  where  sale  prohibited, 
liable  to  indictment  where  he  had  reason  to  suspect  character  of  package;  Mun- 
sell  v.  Carthage,  105  111.  App.  122,  and  Carthage  v.  Duvall,  202  111.  238,  66  N. 
E.  1099,  holding  that  title  passed  on  delivery  of  liquor  to  carrier  C.  O.  D. 
United  States  v.  Orene  Parker  Co.  121  Fed.  598,  and  United  States  v.  Adams 
Exp.  Co.  119  Fed.  244,  holding  that  title  to  liquor  passed  to  consignee  on  deliv- 
ery to  carrier  who  collected  price. 
Reversal  of  verdict  for  Insufficiency  of  evidence. 

Cited  in  Com.  v.  McManus,  143  Pa.  93,  14  L.  R.  A.  93,  22  Atl.  761  (concur- 
ring opinion)  as  to  power  of  supreme  court  to  reverse  conviction  for  insuffi- 
ciency of  evidence. 

5  L.  R,  A.  476,  AUSTIN  v.  GAGAN,  14  Sawy.  151,  39  Fed.  626. 
Time   for   removal    of   cause    to    Federal    court. 

Cited  in  Beyer  v.  Soper  Lumber  Co.  76  Wis.  151,  44  N.  W.  750;  Nichols  v. 
Stevens,  123  Mo.  120,  45  Am.  St.  Rep.  514,  25  S.  W.  578;  Howard  v.  Southern 
R.  Co.  122  N.  C.  947,  29  S.  E.  778;  Martin  v.  Carter,  48  Fed.  598,— holding 
stipulation  of  parties  extending  time  to  answer  does  not  enlarge  time  within 
which  to  remove;  Price  v.  Lehigh  Valley  R.  Co.  65  Fed.  826;  Ruby  Canyon  Gold 
Min.  Co.  v.  Hunter,  60  Fed.  305;  Rock  Island  Nat.  Bank  v.  J.  S.  Keator  Lumber 
Co.  52  Fed.  898, — holding  order  of  court  extending  time  to  answer  in  pursuance 
of  stipulation  of  pai'ties  does  not  enlarge  time  to  remove;  Velie  v.  Manufactur- 
ers' Acci.  Indemnity  Co.  40  Fed.  548,  holding  extension  of  time  to  file  answer 
does  not  extend  time  within  which  to  file  petition  for  removal ;  Spangler  v.  Atchi- 
son,  T.  &  S.  F.  R.  Co.  42  Fed.  306,  holding  petition  cannot  be  filed  after  third 
day  of  term  in  Missouri,  although  time  for  answer  extended  by  order  of  court; 
McDonald  v.  Hope  Min.  Co.  48  Fed.  594,  holding  time  not  enlarged  by  filing 
of  demurrer  to  complaint;  Brigham  v.  C.  C.  Thompson  Lumber  Co.  55  Fed.  883, 
remanding  case  where  petition  filed  after  expiration  of  time  to  answer,  proceed- 
ings in  state  court  having  been  taken  after  previous  remand  for  want  of  ju- 
risdictional  facts  in  petition;  Bowers  v.  Supreme  Council  American  L.  of  H. 
45  Fed.  81,  holding  that  cause  not  lawfully  removed  within  prescribed  time 
will  be  remanded  sua  sponte  by  Federal  court;  Wilson  v.  Big  Joe  Block  Coal 
Co.  135  Iowa,  535,  113  N.  W.  348,  14  A.  &  E.  Ann.  Gas.  266,  holding  a  petition 
for  the  removal  of  a  cause  to  the  Federal  courts  must  be  made  at  or  before 
the  time  defendant  is  required  by  the  state  laws  or  rules  of  the  state  court  to 
plead. 

Distinguished  in  Wilcox  &  G.  Guano  Co.  v.  Phoenix  Ins.  Co.  60  Fed.  932,  hold- 
ing removal  properly  granted  after  the  twenty  days  within  which  to  answer, 
where  petition  filed  within  time  to  answer  as  extended  by  special  order  of  court; 
Lord  v.  Lehigh  Valley  R.  Co.  104  Fed.  929,  upholding  removal  in  second  circuit 
after  time  to  answer,  but  within  time  as  extended  by  order  of  court;  Muir  v. 
Preferred  Acci.  Ins.  Co.  203  Pa.  342,  63  Atl.  158,  granting  removal  after  expira- 
tion of  time  to  answer,  where  application  filed  within  time  extended  by  stipu- 
lations of  parties;  Tevis  v.  Palatine  Ins.  Co.  149  Fed.  561,  holding  where 
plaintiff's  counsel  stipulated  in  writing  that  defendant  might  have  an  extension 
of  time  in  which  to  plead,  plaintiff  could  not  object  that  defendant  might  not 
file  a  petition  for  a  removal  of  the  cause  within  such  time. 


875  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  478 

Grounds   for   removal   of   cause. 

Cited  in  Blue  Bird  Min.  Co.  v.  Largey,  49  Fed.  291,  holding  dispute  as  to 
identity  of  veins  of  ore  in  mineral  grants,  solely  question  of  fact  not  supporting 
removal;  Myrtle  v.  Nevada,  C.  &  O.  R.  Co.  137  Fed.  195,  holding  an  action 
in  a  state  court  to  recover  for  personal  injuries  by  reason  of  defendant's  failure 
to  properly  equip  cars  with  safety  appliances  was  not  removable  to  federal 
court  merely  because  of  an  allegation  of  complaint  that  defendants  were  engaged 
in  interstate  commerce;  Harris  v.  Rosenberger,  13  L.R.A. (N.S.)  765,  76  C.  C.  A. 
225,  145  Fed.  453,  on  the  constitutionality  of  a  statute  not  being  ground  for 
removal  where  such  question  has  been  passed  on  by  United  States  Supreme 
Court. 

Cited  in  note   (11  L.  R.  A.  572)   on  hearing  and  determination  of  right  to  re- 
moval of  cause  for  prejudice  or  local  influence. 
Federal   statute   Involved. 

Cited  in  Fitzgerald  v.  Missouri  P.  R.  Co.  45  Fed.  819,  holding  fact  that  Federal 
law  involved  in  case  not  ground  for  removal  where  no  dispuie  as  to  its  meaning; 
Murray  v.  Bluebird  Min.  Co.  45  Fed.  386,  remanding  cause  where  dispute  is 
merely  upon  immaterial  point,  or  upon  mixed  question  of  law  and  fact  determin- 
able  by  jury;  Southern  P.  R.  Co.  v.  Whittaker,  47  Fed.  530,  refusing  removal  in 
action  of  ejectment  in  which  plaintiff's  title  based  on  Federal  statutes,  validity  of 
which  is  admitted  by  defendant;  Butler  v.  Shafer,  67  Fed.  163,  remanding  cause 
where  petition  in  ejectment  involved  merely  determination  whether  defendant 
claimed  under  one  or  the  other  Federal  grant :  Nelson  v.  Southern  R.  Co.  172 
Fed.  479,  holding  an  action  for  personal  injuries  based  on  a  Federal  statute 
is  not  removable  where  declaration  contains  no  suggestion  that  the  result  of 
the  suit  will  involve  a  construction  of  such  act. 
Petition  for  removal  of  cause. 

Cited  in  State  ex  rel.  Tillman  v.  Coosaw  Min.  Co.  45  Fed.  811,  holding  practice 
to  consider  petition  for  removal  part  of  record  in  determination  of  jurisdiction 
of  Federal  court,  not  altered  by  act  of  1887. 

Cited  in  footnote  to  Herndon  v.  J^tna  F.  Ins.  Co.  10  L.  R.  A.  53,  which  holds 
petition  for  removal  of  cause  not  aided  by  allegations  as  to  residence  in 
complaint. 

5  L.  R,  A.  478,  WESTCHESTER  F.  INS.  CO.  v.  WEAVER,  70  Md.  536,  17  Atl. 

401,  18  Atl.  1034. 
Vacancy    of    Insnred    property. 

Cited  in  Agricultural  Ins.  Co.  v.  Hamilton,  82  Md.  91,  30  L.  R.  A.  634,  51  Am. 
St.  Rep.  457,  33  Atl.  429,  holding  house  not  actually  used  as  place  of  abode  vacant 
within  meaning  of  policy. 
Ownership   of   insured    property. 

Cited  in  Hartford  F.  Ins.  Co.  v.  Keating,  86  Md.  145,  63  Am.  St.  Rep.  499,  38 
Atl.  29,  holding  title  must  be  completely  vested  tc  be  sole  and  unconditional  own- 
ership wit.iin  policy;  Hebner  v.  Palatine  Ins.  Co.  157  HI.  149,  41  N.  E.  627, 
holding  half  ownership  avoids  policy  requiring  sole  ownership;  McWilliams  v. 
Cascade  F.  &  M.  Ins.  Co.  7  Wash.  52,  34  Pac.  140,  holding  entire  policy  avoided 
where  ownership  of  one  of  articles  insured  was  conditional;  Phoenix  Ins.  Co.  v. 
Public  Parks  Amusement  Co.  63  Ark.  201,  37  S.  W.  959,  holding  ownership  not 
unconditional,  title  being  reserved  in  vendor  pending  payment;  Win.  Skinner  & 
Sons'  Ship-Building  &  Dry-Dock  Co.  v.  Houghton,  92  Md.  94,  84  Am.  St.  Rep.  485, 
48  Atl.  85,  holding  policy  avoided  by  contract  for  sale,  as  change  of  interest 
without  consent  of  insurer,  within  terms  of  policy;  Dow  v.  National  Assur. 


5  L.R.A.  478]  L.  R.  A.  CASES  AS  AUTHORITIES.  876 

Co.  26  R.  I.  380,  67  L.R.A.  479,  106  Am.  St.  Rep.  728,  58  Atl.  999,  holding  a 
policy  of  insurance  on  household  goods  containing  a  condition  that  the  interest 
should  be  unconditional  would  not  cover  a  piano  purchased  on  the  installment 
plan;  Glens  Falls  Ins.  Co.  v.  Michael,  167  Ind.  690,  8  L.R,A.(N.S.)  720,  74 
N.  E.  964  (dissenting  opinion),  on  the  peremptory  character  of  a  condition 
of  a  policy  that  the  insured  be  the  unconditional  owner  of  the  property. 

Cited  in  notes  (11  L.R.A.  599)  on  what  are  insurable  interests;  (20  L.R.A. 
(N.S. )  779)  on  vendee  under  land  contract  as  owner  within  meaning  of  insurance 
policy;  (29  Am.  St.  Rep.  909)  on  representations  as  to  encumbrances  as  to 
insured  property. 

Distinguished  in  Citizens'  Mut.  F.  Ins.  Co.  v.  Conowingo  Bridge  Co.  113  Md. 
447,   77   Atl.   378,   holding  that   policy   is   not   avoided   because   of   existence   of 
mortgage    not   disclosed,    under    clause    making   it  void   if   title   is   other   than 
unconditional. 
Sufficiency  of  compliance  with  stipulations  of  tbe  policy. 

Cited  in  Reynolds  v.  German  American  Ins.  Co.  107  Md.  117,  15  L.R.A.(N.S.) 
349,  68  Atl.  262,  holding  where  an  insurance  policy  contained  a  clause  that 
an  inventory  be  taken  within  a  certain  time  from  date  of  policy  or  it  should 
be  void,  the  policy  was  not  enforceable  where  such  inventory  was  not  taken 
fourteen  days  after  the  expiration  of  the  required  time. 
Construction  of  Insurance  policies. 

Cited  in  McEvoy  v.  Security  F.  Ins.  Co.  110  Md.  279,  22  L.R.A.(N.S.)  966, 
132  Am.  St.  Rep.  428,  73  Atl.  157,  on  insurance  policies  as  to  be  construed  as 
other  contracts. 

5  L.  R.  A.  480,  BAYLES  v.  KANSAS  P.  R.  CO.  13  Colo.  181,  2  Inters.  Com.  Rep. 
643,  22  Pac.  341. 

Report  of  second  appeal  in  Kansas  P.  R.  Co.  v.  Bayles,  19  Colo.  350,  35  Pac. 
744. 
Unjust   discrimination   by   carriers. 

Cited  in  Cleveland  C.  C.  &  I.  R.  Co.  v.  Closser,  126  Ind.  353,  9  L.  R.  A.  757,  3 
Inters.  Com.  Rep.  391,  22  Am.  St.  Rep.  593,  26  N.  E.  159,  holding  discrimination 
without  partiality  inoffensive;  Western  U.  Teleg.  Co.  v.  Call  Pub.  Co.  44  Neb. 
338,  27  L.  R.  A.  626,  48  Am.  St.  Rep.  729,  62  N.  W.  506,  holding  difference  in 
rates  under  substantially  similar  circumstances,  unjust  discrimination;  Interstate 
Commerce  Commission  v.  Baltimore  &  0.  R.  Co.  3  Inters.  Com.  Rep.  201,  43  Fed. 
55,  holding  "party  rate"  tickets  for  parties  of  ten,  at  reduced  fare,  not  unjust 
discrimination;  Haurigan  v.  Chicago  &  N.  W.  R.  Co.  80  Neb.  138,  113  N.  W. 
983,  16  A.  &  E.  Ann.  Cas.  450,  holding  a  shipper  paying  freight  in  excess  of 
contract  price  might  recover  such  excess  although  the  rate  which  was  agreed 
to  by  mistake  was  less  than  that  given  to  other  shippers. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Call  Pub.  Co.  27  L.  R.  A.  622, 
which  authorizes  difference  in  telegraph  rates  to  morning  and  evening  papers. 

Cited  in  note    (22  Am.  St.  Rep.  611)    on  carrier's  right  to  discriminate. 
Sufficiency   of   pleadings. 

Cited  in  Rosebud  Min.  &  Mill  Co.  v.  Hughes,  16  Colo.  App.  164,  64  Pac.  247, 
holding  complaint  entitling  plaintiff  to  any  relief  will  withstand  demurrer  as  to 
insufficiency;  Devino  v.  Central  Vermont  R.  Co.  63  Vt.  103,  20  Atl.  953,  holding 
counts  in  negligence  action  not  demurrable  because  of  too  many  items  of  damage. 

5  L.  R.  A.  493,  CAMERON  v.  WHITE,  74  Wis.  425,  43  N.  W.  155. 
i  !«•«•!!  1    and   equitable  causes  of  action. 

Cited  in  Aultman  Co.  v.  McDonough,  110  Wis.  269,  85  N.  W.  980,  holding,  in 


877  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  496 

case  involving  legal  and  equitable  action,  latter  should  be  first  tried;  Krakow 
v.  Wille,  125  Wis.  286,  103  X.  W.  1121,  4  A.  &  E.  Ann.  Cas.  1016,  holding  a 
cause  of  action  for  the  reformation  of  a  contract  for  the  sale  of  land  and  over 
for  damages  for  injury  to  the  freehold  by  the  cutting  of  trees  by  the  vendor 
after  the  making  of  the  contract  may  be  properly  joined. 
Performance  by  plaintiff. 

Cited  in  Corbett  v.  Anderson,  85  Wis.  224,  54  N.  W.  727,  holding  plaintiff  en- 
titled to  abandon  contract  for  hauling  logs  on  defendant's  breach;  Walsh  v.  My- 
ers, 92  Wis.  402,  66  N.  W.  250,  holding,  on  defendant's  breach  of  contract  to  take 
lye  cans  and  failure  to  demand  further  performance,  unnecesary  for  plaintiff  to 
keep  in  readiness  to  perform ;  Tufts  v.  Weinfeld,  88  Wis.  652,  60  N.  W.  992,  hold- 
ing, on  countermand  of  order  for  soda  water  fountains,  vendor  cannot  continue 
their  manufacture  so  as  to  charge  full  price. 
Reformation  of  contract. 

Cited  in  footnote  to  Bigham  v.  Madison,  47  L.  R.  A.  267,  which  authorizes  re- 
scission for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor. 

Cited  in  note   (117  Am.  St.  Rep.  237)   on  mistakes  for  which  written  instru- 
ments may  be  cancelled  or  corrected  in  equity. 
Damages    for    breach    of    contract. 

Cited  in  Corbett  v.  Anderson,  85  Wis.  224,  54  N.  W.  727,  holding  plaintiff  en- 
titled to  recover  profits  on  abandoning  contract  for  hauling  logs  after  defend- 
ant's breach ;  Walsh  v.  Myers,  92  Wis.  402,  66  N.  W.  250,  holding  plaintiff  entitled 
to  recover  profits  he  would  have  made  by  furnishing  lye  cans,  on  defendant's  breach 
of  contract  to  take;  Sullivan  v.  McMillan,  37  Fla.  140,  53  Am.  St.  Rep.  239,  19 
So.  340,  holding,  on  breach  of  contract  for  hauling  logs  by  defendant,  plaintiff  not 
bound  to  seek  similar  contracts  to  protect  himself  from  loss;  Gardner  v.  Deeds, 
116  Tenn.  138,  4  L.R.A.(N.S.)  746,  92  S.  W.  518,  7  A.  &  E.  Ann.  Cas.  1172, 
holding  a  manufacturer  might  recover  for  a  breach  of  contract  to  purchase 
buggies,  to  be  ordered  as  needed,  the  profits  he  would  have  made,  where  he  had 
before  the  breach  purchased  the  material  for  their  construction;  Duke  v.  Xorfolk 
&  W.  R.  Co.  106  Va.  158,  55  S.  E.  548,  holding  on  breach  of  contract  by  railroad 
company  to  purchase  a  quantity  of  cross-ties,  the  seller  may  recover  the  differ- 
ence between  the  contract  price  and  the  cost  of  making  and  delivering;  W.  J. 
Holliday  &  Co.  v.  Highland  Iron  &  Steel  Co.  43  Ind.  App.  352,  87  N.  E.  249, 
on  measure  of  damages  for  breach  of  contract;  Carolina  Portland  Cement  Co. 
v.  Columbia  Improv.  Co.  3  Ga.  App.  491,  60  S.  E.  279,  on  right  to  have  a 
recovery  of  anticipated  profits  as  damages  for  breach  of  contract;  Richey  v 
Union  Cent.  L.  Ins.  Co.  140  Wis.  491,  122  X.  W.  1030,  on  the  recovery  of  the 
loss  of  profits  as  damages. 

Cited  in  notes  (52  L.R.A.  255)  on  loss  of  profits  of  sale  or  purchase  as  dam- 
ages; (4  L.R.A.  (X.S.)  742)  on  measure  of  damages  for  purchaser's  refusal  to 
accept  goods  specially  manufactured;  (21  Am.  St.  Rep.  121)  on  measure  of 
damages  for  breach  of  contract. 

5  L.  R.  A.  496,  LIEBSCHER  v.  KRAUS,  74  Wis.  387,  17  Am.  St.  Rep.  171,  43  X. 

W.  166. 
Parol   evidence   to   explain   \vritten   contract. 

Cited  in  Ball  v.  McGeoch,  81  Wis.  171,  51  X.  W.  443,  holding  parol  evidence 
admissible  to  show  fraud  in  procuring  signature  to  written  agreement;  Elofrson 
v.  Lindsay,  90  Wis.  205,  63  X.  W.  89,  holding,  in  ejectment,  parol  evidence  not 
admissible  to  show  that  conveyances  intended  to  cover  land  in  controversy; 


5  L.R.A.  49G]  L.  R.  A.  CASES  AS  AUTHORITIES.  878 

Swarts  v.  Cohen,  11  Ind.  App.  23,  38  N.  E.  536,  holding  note  signed  "National, 
etc.,  Co.,  Mark  Swarts,  president,"  ambiguous,  and  parol  evidence  admissible; 
Holt  v.  Sweetzer,  23  Ind.  App.  242,  55  X.  E.  254,  holding  parol  evidence  admissible 
to  explain  ambiguous  note;  Mathews  v.  Dubuque  Mattress  Co.  87  Iowa,  £53,  19 
L.  R.  A.  682,  54  N.  W.  225  (dissenting  opinion),  majority  holding  on  note  "we 
promise  to  pay,"  signed  "'Dubuque  Mattress  Co.,  John  Knopp,  Pt.,"  Knopp  person- 
ally liable,  and  parol  evidence  inadmissible;  Wiers  v.  Treese,  27  Okla.  777,  117 
Pac.  182,  holding  that  note  signed  by  individual  with  representative  description 
may  be  shown  to  have  been  intended  to  bind  individual. 

Cited  in  notes   (20  L.R.A.  706)   on  admissibility  of  extrinsic  evidence  to  show 
who  is  liable  as  maker  of  note;    (21  L.R.A. (N.S.)    1085)    on  parol  evidence  to 
charge  principal  on  note  executed  by  agent. 
Corporation    notes. 

Cited  in  Reeve  v.  First  Nat.  Bank,  54  N.  J.  L.  211,  16  L.  R.  A.  145,  footnote  p. 
143,  33  Am.  St.  Rep.  675,  23  Atl.  853,  holding  note  "we  promise  to  pay,"  signed 
"Warrick  Glass  Works,  J.  Price  Warrick,  Prest.,"  corporation's  note;  Nunne- 
macher  v.  Poss,  116  Wis.  448,  92  N.  W.  375,  holding  corporation  and  officers 
bound  as  individuals  on  note  signed  with  corporate  name,  by  officers  without  offi- 
cial designation;  American  Nat.  Bank  v.  Omaha  Coffin  Mfg.  Co.  Neb.  (Unof.) 
324,  95  N.  W.  672,  holding  note  signed  by  president  and  secretary,  with  official 
designation,  corporate  note;  Aungst  v.  Creque,  72  Ohio  St.  558,  74  N.  E. 
1073;  English  &  S.  A.  Mortg.  &  Invest.  Co.  v.  Globe  Loan  &  T.  Co.  70  Neb. 
436,  97  N.  W.  612,  6  A.  &  E.  Ann.  Gas.  999, — holding  a  note  signed  with  the 
name  of  the  corporation  with  the  names  of  the  president  and  secretary  desig- 
nated by  their  official  title  did  not  create  any  personal  liability  on  the  part  of 
such  officials;  Germania  Nat.  Bank  v.  Mariner,  129  Wis.  546,  109  N.  W.  574, 
holding  on  a  note  signed  "the  Northwestern  Straw  Works,  "E.  R.  Stillman, 
Treas.  "John  W.  Mariner,"  it  appearing  that  Mariner  was  secretary,  there  was 
no  personal  liability  on  his  part;  Derby  v.  Gustafson,  131  111.  App.  283,  on 
when  officers  signing  are  liable  on  note  made  for  benefit  of  corporation. 

Cited  in  notes  (19  L.R.A.  676)  on  personal  liability  of  officers  on  note  made 
for  corporation;  (21  L.R.A. (N.S.)  1060)  on  liability  of  principal  on  negotiable 
paper  executed  by  agent;  (21  Am.  St.  Rep.  342)  on  personal  liability  of  cor- 
porate directors;  (48  Am.  St.  Rep.  919)  on  personal  liability  of  corporate 
officers  to  third  persons;  (4  Eng.  Rul.  Cas.  283,  285,  286)  on  liability  of  one 
signing  bill  or  note  as  agent. 

5  L.  R.  A.  498,  TREADWELL  v.  WHITTIER,  80  Cal.  574,  13  Am.  St.  Rep.  175, 

22  Pac.  266. 
Proof  in  action   for  injury. 

Cited  in  Samuels  v.  California  Street  Cable  R.  Co.  124  Cal.  296,  56  Pac.  1115, 
holding  evidence  of  uterine  trouble  admissible  under  allegations  of  bodily  injury 
and  resultant  damage;  San  Antonio  &  A.  P.  R.  Co.  v.  Weigers,  22  Tex.  Civ.  App. 
348,  54  S.  W.  910,  holding  damages  for  permanent  injuries  recoverable  under  gen- 
eral ad  damnum  clause,  without  being  specified;  Castino  v.  Ritzinan.  156  Cal. 
588,  105  Pac.  739,  holding  in  an  action  for  personal  injuries  a  general  statement 
of  the  whole  amount  of  damages  is  sufficient  where  the  damage  claimed  is  the 
natural  and  ordinary  effect  of  the  injuries;  Flanagan  v.  Baltimore  &  0.  R.  Co. 
83  Iowa,  643,  50  N.  W.  60,  holding  it  unnecessary  that  a  petition  claiming 
damages  for  loss  of  time  for  injuries  causing  permanent  disability,  allege  the 
character  of  plaintiff's  occupation  in  order  to  introduce  evidence  showing  occu- 
pation and  the  extent  of  his  earnings;  Loofbourow  v.  Utah  Light  &  R.  Co.  33 
Utah,  483,  94  Pac.  981,  holding  evidence  of  injured  parties,  vacation,  earnings 


879  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  498 

and  loss  was  admissible  under  allegations  as  to  the  nature  of  his  injuries,  and 
the  results  thereof  on  the  conducting  of  his  business,  etc.;  Cunningham  v.  New- 
York  C.  &  H.  R.  R.  Co.  49  Fed.  439,  holding  in  an  action  for  damages  for 
personal  injuries  the  opinions  of  medical  experts  as  to  the  probable  future 
effects  of  the  injuries  are  receivable. 
Presumption  as  to  negligence. 

Cited  in  Bush  v.  Barnett,  96  Cal.  204,  31  Pac.  2,  holding  injury  to  passenger 
presumed  to  be  due  to  negligence  of  carrier;  Bosqui  v.  Sutro  R.  Co.  131  Cal.  399, 
63  Pac.  682,  holding  accident  without  fault  of  passenger  prima  facie  proof  of  neg- 
ligence on  part  of  street  railway;  McCurrie  v.  Southern  P.  Co.  122  Cal.  562,  55 
Pac.  324,  holding  carrier  presumed  to  be  negligent  when  injury  shown  to  be 
caused  by  instrumentalities  in  its  business;  Ellis  v.  Waldron,  19  R.  I.  371,  33  Atl. 
869,  holding  fall  of  elevator  raised  presumption  of  negligence;  Winheim  v.  Field, 
107  111.  App.  149,  holding  that  breaking  of  machinery  causing  elevator  to  fall 
raises  presumption  of  negligence;  Fox  v.  Philadelphia,  208  Pa.  135,  65  L.  R.  A. 
218,  57  Atl.  356,  holding  that  crushing  of  one  by  elevator  through  no  negligence 
of  his  raises  presumption  of  negligence;  Montgomery  &  E.  it.  Co.  v.  Mallette,  92 
Ala.  215,  9  So.  363,  holding  carrier  prima  facie  liable  for  injury  to  passenger  by 
derailment  of  car;  Renfro  v.  Fresno  City  R.  Co.  2  Cal.  App.  323,  84  Pac.  357, 
holding  the  fact  that  a  passenger  standing  with  a  foot  on  the  step  of  the  car 
waiting  to  alight  was  thrown  violently  to  the  ground  is  sufficient  prima  facie 
to  charge  the  company  with  negligence;  Budd  v.  United  Carriage  Co.  25  Or. 
323,  27  L.R.A.  283,  35  Pac.  660,  holding  evidence  that  driver  lost  control  of 
stage  coach  and  that  horses  ran  away  created  a  presumption  that  carrier  was 
negligent  in  providing  safe  horses  and  a  competent  driver;  Laforrest  v.  O'Dris- 
coll,  26  R.  I.  552,  59  Atl.  923,  on  the  mere  happening  of  an  accident  as  prima 
facie  evidence  of  negligence;  Southern  P.  Co.  T.  Cavin,  75  C.  C.  A.  350,  144 
Fed.  351,  on  the  burden  being  on  carrier  to  show  that  an  injury  to  passenger 
was  not  due  to  its  negligence. 

Cited   in   notes    (13   L.R.A. (N.S.)    619)    on   presumption   of   negligence   from 
injury   to   passenger;    (16   L.R.A. (N.S.)    931)    on   res   ipsa  loquitur   as  between 
storekeeper   and  customer;    (113   Am.  St.  Rep.   1030)    on  presumption  of  negli- 
gence from  happening  of  accident  causing  personal  injuries. 
Running:   of   elevator. 

Cited  in  Kentucky  Hotel  Co.  v.  Camp,  97  Ky.  431,  30  S.  W.  1010;  Southern 
Bldg.  &  L.  Asso.  v.  Lawson,  97  Tenn.  371,  56  Am.  St.  Rep.  804,  37  S.  W.  86; 
Springer  v.  Ford,  189  111.  434,  52  L.  R.  A.  931,  82  Am.  St.  Rep.  464,  59  N.  E. 
953 ;  Riland  v.  Hirshler,  7  Pa.  Super.  Ct.  386 ;  Marker  v.  Mitchell,  54  Fed.  638,— 
holding  passenger  elevator  must  be  run  with  same  degree  of  care  required  of 
carrier:  McGrell  v.  Buffalo  Office  Bldg.  Co.  90  Hun,  34,  35  N.  Y.  Supp.  599,  hold- 
ing owner  of  passenger  elevator  liable  for  death  of  child  caused  by  running  of 
elevator;  Griffen  v.  Manice,  166  N.  Y.  197,  52  L.  R,  A.  926,  82  Am.  St.  Rep.  630. 
59  N.  E.  925,  Reversing  47  App.  Div.  75,  62  N.  Y.  Supp.  364,  holding  owner  of 
passenger  elevator  not  liable  for  death  caused  by  fall  of  balancing  weight;  Gibson 
v.  International  Trust  Co.  177  Mass.  103,  52  L.  R.  A.  929,  58  N.  E.  278,  holding 
evidence  did  not  disclose  negligence  in  running  elevator;  Womble  v.  Merchants 
Grocery  Co.  135  N.  C.  485,  47  S.  E.  493,  holding  question  whether  elevator  was 
properly  constructed,  for  jury;  Klebe  v.  Parker  Distilling  Co.  207  Mo.  491,  13 
L.R.A. (N.S.)  144,  305  S.  W.  1057,  holding  an  employer  not  liable  for  an  injury 
to  a  servant  by  the  fall  of  a  freight  elevator  where  it  was  shown  it  was  properly 
inspected  and  no  negligence  existed  on  the  part  of  the  master  it  being  under 
the  charge  of  plaintiff  and  other  employees;  Kappes  v.  Brown  Shoe  Co.  116 
Mo.  App.  167.  90  S.  W.  1158,  holding  an  employer  maintaining  a  freight  elevator 


5  L.R.A.  498]  L.  R.  A.  CASES  AS  AUTHORITIES.  880 

is  not  required  to  provide  the  elevator  with  safety  devices  necessary  in  the 
construction  of  a  passenger  elevator;  Cooper  v.  Century  Realty  Co.  224  Mo. 
723,  123  S.  W.  848,  holding  the  owners  of  an  office  building  operating  passenger 
elevators  were  common  carriers  of  passengers;  Fox  v.  Philadelphia,  208  Pa.  135r 
Go  L.R.A.  218,  57  Atl.  356,  holding  a  city  was  liable  where  plaintiff  attending 
court  in  the  city  hall  was  injured  by  the  negligence  of  the  operator  of  an 
elevator;  Mitchell  v.  Marker,  25  L.R.A.  30,  10  C.  C.  A.  306,  22  U.  S.  App. 

325,  62   Fed.    143,   Affirming   54   Fed.   638,    holding   a   carrier   by   elevator   was 
required   to  exercise   the   highest  degree   of   care   for   the   safety   of   passengers; 
Ohio  Valley   T.   Co.   v.   Wernkc,   42   Ind.   App.   334,   84   N.   E.   999,   holding  an 
instruction  that  owner  of  a  building,  in  action  for  damages  caused  by  a  pas- 
senger elevator  therein  was  liable  as  a  common  carrier  of   passengers  for  hire 
was  correct;   Belvedere  Bldg.   Co.  v.  Bryan,   103  Md.   535,  64  Atl.  44;    Burgess 
v.  Stowe,   134  Mich.  210,   96  N.  W.  29;    Edwards  v.   Burke,   36   Wash.   112,   78 
Pac.  610;   Shellaberger  v.  Fisher,  5  L.R.A.(N.S.)    257,  75  C.  C.  A.  9,  143  Fed 
940;    Sweeden  v.  Atkinson  Improv.  Co.  93  Ark.   402,   27  L.R.A.  (N.S.)    126,  125 
S.   W.   439, — on   the   owner   of  an   elevator  as   owing  to  passengers   the   highest 
degree   of  skill   and  care;    Orcutt  v.   Century  Bldg.   Co.  201   Mo.  437,   8   L.R.A. 
(N.S.)   932,  99  S.  W.  1062,  on  the  relation  of  passenger  and  carrier  as  existing 
in  the  operation  of  passenger  elevators. 

Cited  in  notes  (25  L.RA.  33;  2  L.R.A.(N.S.)  745,  748,  749,  751)  on  liability 
for  injuries  to  elevator  passengers;  (56  Am.  St.  Rep.  806,  807,  808)  on  lia- 
bility of  owners  of  elevators  used  for  passengers  or  employees. 

Distinguished  in  State,  use  of  Arnold,  v.  Green,  95  Md.  229,  52  Atl.  673,  holding 
owner  of  passenger  and  freight  elevator  in  warehouse  not  liable  for  injury  not 
shown  to  be  caused  by  defective  machinery  or  running  of  elevator;  Watts  v. 
Murphy,  9  Cal.  App.  568,  99  Pac.  1104,  holding  in  an  action  for  the  death  of 
an  employee  an  instruction  that  the  defendants  in  the  maintenance  of  an  elevator 
must  use  the  utmost  care  and  diligence  in  providing  safe  machinery,  etc.,  was 
erroneous. 

Disapproved  in  Edwards  v.  Manufacturers'  Bldg.  Co.  27  R.  I.  249,  2  L.R.A. 
(N.S.)  746,  114  Am.  St.  Rep.  37,  61  Atl.  646,  8  A.  &  E.  Ann.  Gas.  974,  holding 
a  landlord  who  maintains  an  elevator  in  his  private  building  for  the  use  of 
tenants  is  not  a  common  carrier  and  is  bound  to  the  exercise  of  only  rea- 
sonable care. 
Damage  recoverable  under  pleading. 

Cited  in  Clare  v.  Sacramento  Electric  Power  &  Light  Co.  122  Cal.  506,  55  Pac. 

326,  holding  $2,000  damages  not  excessive  for  loss  of  eye,  hearing  of  ear,  and  se- 
vere  shock  to  nervous  system;   Terrace  Water  Co.  v.  San  Antonio  Light  &  P. 
Co.  1  Cal.  App.  513,  82  Pac.  562,  holding  in  action  for  breach  of  contract  for 
the   sale    of   electric   power,   the   plaintiff   was    entitled   under   the   ad   damiium 
clause  of  the  complaint  to  recover  the  difference  between  the  contract  price  and 
what  it  would  cost  to  purchase  the  power  from  another. 

Distinguished  in  Lombard!  v.  California  Street  R.  Co.  124  Cal.  320,  57  Pac.  66, 
holding  evidence  of  net  profits  from  business  not  admissible  when  value  of  time 
has  been  alleged  as  basis  of  loss. 
Duty  of  railroad  to  passengers. 

Cited  in  Siemsen  v.  Oakland,  S.  L.  &  H.  Electric  R.  Co.  134  Cal.  499,  66  Pac. 
(572,  holding  railway  liable  for  injury  due  to  latent  defects  in  manufacture  of  car; 
Mitchell  v.  Southern  P.  R.  Co.  87  Cal.  72,  11  L.  R.  A.  133,  25  Pac.  245,  holding 
railroad  bound  to  prove  admitted  injury  by  derailment  of  car  not  due  to  want  of 
care;  Southern  R.  Co.  v.  Burgess,  143  Ala.  370,  42  So.  35,  holding  an  instruc- 


881  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  508 

tion  that  a  carrier  owes  to  the  passengers  the  highest  degree  of  diligence 
known  to  "very"  diligent  persons  engaged  in  like  business,  is  not  objectionable 
as  requiring  an  exercise  of  extraordinary  care;  Valente  v.  Sierra  R.  Co.  151 
Cal.  543,  91  Pac.  481,  holding  an  instruction  in  action  for  death  of  a  passenger 
that  railroad  companies  engaged  in  transporting  passengers  for  hire  are  bound 
to  use  the  best  precautions  in  practical  use  was  objectionable  as  being  too 
broad;  O'Callaghan  v.  Dellwood  Park  Co.  242  111.  343,  26  L.R.A. (N.S.)  1056, 
134  Am.  St.  Rep.  331,  89  N.  E.  1005,  17  A.  &  E.  Ann.  Cas.  407,  holding  the 
operator  of  a  scenic  railway  was  bound  to  the  exercise  of  the  highest  degree 
of  care  for  the  safety  of  its  patrons;  Morgan  v.  Chesapeake  &  0.  R.  Co.  127 
Ky.  439,  15  L.R.A.(N.S.)  794,  105  S.  W.  960,  16  A.  &  E.  Ann.  Cas.  608,  holding 
a  carrier  was  liable  where  a  passenger  was  injured  by  the  breaking  of  a  de- 
fective axle  on  a  foreign  car  being  transported  as  a  part  of  the  train,  where 
such  defect  capable  of  discovery;  Kline  v.  Santa  Barbara  Consol.  R.  Co.  150 
Cal.  746,  90  Pac.  125,  on  the  duty  required  of  carrier  in  the  carriage  of  pas- 
senger; Dinnigan  v.  Peterson,  3  Cal.  App.  767,  87  Pac.  218,  on  carrier  a» 
owing  the  utmost  care  to  a  passenger. 

Cited  in  footnote  to  Proud  v.  Philadelphia  &  R.  R.  Co.  50  L.  R.  A.  468,  which 
denies  liability  for  injury  by  slipping  on  filth  on  car  step  in  nighttime  within 
half  hour  after  car  inspected. 

Cited  in  notes  (31  L.  R.  A.  314)  on  duty  of  railroad  carrier  in  respect  to  fur- 
nishing proper  cars  for  passengers;   (7  L.  R.  A.  688)  on  obligations  and  liabilities 
of   carriers  of   passengers;    (77   Am.   St.   Rep.  29;    5  Eng.  Rul.   Cas.  402)    on 
extent  of  duty  to  secure  safety  of  passengers. 
Contributory    negligence    of    passenger. 

Cited  in  Nagle  v.  California  S.  R.  Co.  88  Cal.  91,  25  Pac.  1106,  holding  passenger 
should  look  before  he  leaps  from  train  stopped  outside  of  station. 
Duty  owed  l>y  master  to  servant. 

Cited  in  Sappenfield  v.  Main  Street  &  Agri.  Park  R.  Co.  91  Cal.  55,  27  Pac. 
590,  disapproving  an  instruction  to  the  effect  that  it  \vas  the  duty  of  the 
master  to  furnish  such  appliances  "as  combine  the  greatest  safety  with  the 
practical  use. 

5  L.  R.  A.  508,  FOREPAUGH  v.  DELAWARE,  L.  &  W.  R.  CO.  128  Pa. '217,  15 
Am.  St.  Rep.  672,  18  Atl.  503. 

Conflict    of    laws. 

Cited  in  McDermott  v.  Prudential  Ins.  Co.  7  Kulp,  249,  holding  wagering  life 
insurance  policy,  valid  where  made  and  payable,  not  enforceable  here;  City  Bank 
v.  Easton  Boot  &  Shoe  Co.  6  Northampton  Co.  Rep.  28.  holding  action  for  wrong- 
ful sale  of  property  delivered  to  carrier  in  New  York  for  this  state  determined  by 
laws  of  former;  Cooke  v.  Addicks,  6  Pa.  Super.  Ct.  118,  sustaining  right  to  show 
nature  of  indorsement  on  note  executed  elsewhere  and  enforced  here;  Healy  v. 
Eastern  Bldg.  &  L.  Asso.  17  Pa.  Super.  Ct.  394,  construing  as  New  York  contract, 
one  made  and  to  be  performed  there;  Alexander  v.  Barker,  64  Kan.  401,  67  Pac. 
829,  denj-ing  enforcement  of  contract  of  agency  as  to  lands  in  another  state  where 
contract  invalid;  Southern  Exp.  Co.  v.  Owens,  146  Ala.  418,  8  L.R.A. (N.S.) 
372,  119  Am.  St.  Rep.  41,  41  So.  752,  9  A.  &  E.  Ann.  Cas.  1143,  holding  the 
doctrine  that  a  contract  is  governed  by  the  law  of  the  place  can  only  be  iiu 
volved  by  so  pleading  and  making  proof  of  the  law  of  such  foreign  jurisdiction; 
Missouri,  K.  &  T.  R.  Co.  v.  Hutchings,  78  Kan.  768,  99  Pac.  230,  on  the  con- 
chisiveness  of  the  decisions  of  the  courts  of  foreign  states:  Sutterly  v.  Fleshman, 
41  Pa.  Super.  Ct.  134,  to  the  point  that  rights  under  foreign  statute,  not  con- 
L.R.A.  Au.  Vol.  I.— 56. 


5  L.R.A.  508]  L.  R.  A.  CASES  AS  AUTHORITIES.  882 

trary  to  policy  of  this  state  will  be  enforced  by  remedies  according  to  procedure 
of  this  state;  Com.  v.  Tarraborrelli,  19  Pa.  Dist.  R.  236,  to  the  point  that  state 
courts  are  only  tribunals  to  pass  upon  difference  between  common  law  of  England 
and  that  of  this  state. 

Cited  in  footnote  to  Byrne  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  24  L.  R.  A.  693, 
which  requires  Federal  courts  to  follow  construction  by  state  courts  of  state  stat- 
ute as  to  effect  of  contributory  negligence. 

Cited  in  notes  (67  L.R.A.  39)  on  how  case  determined  when  proper  foreign 
law  not  proved;  (6  L.R.A.  (N.S.)  214)  on  conflicting  interpretations  of  common- 
law  rules  in  different  jurisdictions;  (40  L.R.A.  (X.S.)  384)  on  questions  of  state 
law  as  to  which  state  court  decisions  must  be  followed  in  actions  originating  in, 
or  removed  to,  Federal  courts. 
As  to  contracts  limiting-  liability. 

Cited  in  Fairchild  v.  Philadelphia,  W.  &  B.  R.  Co.  148  Pa.  531,  24  Atl.  79, 
holding  contract  for  carriage  of  property  to  be  interpreted  according  to  law  of 
place  where  made;  Fonseca  v.  Cunard  S.  S.  Co.  153  Mass.  557,  12  L.  R.  A.  342,  25 
Am.  St.  Rep.  660,  27  N.  E.  665,  holding  contract  limiting  liability,  valid  in  Eng- 
land where  .made,  enforceable  in  Massachusetts;  Frank  v.  Adams  Exp.  Co.  17 
Pa.  Dist.  R.  469,  38  Pittsb.  L.  J.  N.  S.  335;  Stewart  v.  Baltimore  &  0.  R.  Co, 
37  Pa.  Super.  Ct.  279, — holding  courts  would  enforce  a  stipulation  of  a  contract 
limiting  carrier's  liability  for  negligence  although  contrary  to  laws  of  the  state, 
the  injury  occurring  in  state  where  such  a  contract  is  valid;  Geyer  v.  United 
Spates  Exp.  Co.  27  Montg.  Co.  L.  Rep.  36,  holding  that  contract  for  carriage 
of  property  is  to  be  construed  in  accordance  with  the  law  of  place  where  con- 
tract is  made. 

Cited  in  footnote  to  Tecumseh  Mills  v.  Louisville  &  N.  R.  Co.  49  L.  R.  A.  557, 
which  holds  prohibition  against  carriers  limiting  liability  inapplicable  to  contract 
by  domestic  corporation  in  other  state  for  transportation  entirely  outside  of  state. 

Cited  in  note  ( 63  L.  R.  A.  524 )  on  conflict  of  laws  as  to  carriers'  contracts. 

Distinguished  in  Hughes  v.  Pennsylvania  R.  Co.  202  Pa.  227,  63  L.  R.  A.  517, 
97  Am.  St.  Rep.  713,  51  Atl.  990,  holding  contract  limiting  liability,  made  in  an- 
other state,  void  if  injury  occurs  in  Pennsylvania. 

Disapproved  in  The  Glenmavis,  69  Fed.  478,  holding  contract  limiting  liability, 
valid  in  Germany  where  made,  not  enforceable  in  United  States  courts;  Shaw  v. 
Postal  Teleg.  &  Cable  Co.  79  Miss.  692,  56  L.  R.  A.  492,  89  Am.  St.  Rep.  666,  31 
So.  222  (dissenting  opinion),  majority  holding  that  construction  in  state  where 
passed,  of  statute  as  authorizing  contract  limiting  liability  for  mistake  in  trans- 
mitting telegrams,  will  be  followed  elsewhere. 
As  to  other  contracts. 

Cited  in  Baxter  Nat.  Bank  v.  Talbot,  154  Mass.  216,  13  L.  R,  A.  55,  28  N.  E. 
163,  holding  lex  looi  of  contract  governs  indorsement  of  promissory  note;  F.  B. 
Hauck  Clothing  Co.  v.  Sharpe,  83  Mo.  App.  391,  holding  law  of  place  of  per- 
formance does  not  govern  married  woman's  capacity  to  contract;  John  A.  Tolman 
Co.  v.  Reed,  115  Mich.  74,  72  N.  W.  1104,  holding  guaranty  dated  in  Illinois, 
signed  in  Michigan,  and  mailed  to  guarantee  in  Illinois,  Illinois  contract;  Parker 
v.  Moore,  53  C.  C.  A.  372,  115  Fed.  802,  holding  contract  valid  in  state  where  made 
not  enforceable  in  another  state  if  contrary  to  its  morals,  public  policy,  or 
statutes. 

Cited  in  notes  (46  Am.  St.  Rep.  448,  454)  on  asserting  against  married 
woman  a  liability  valid  in  state  where  created  but  not  in  foreign;  (55  Am. 
St.  Rep.  54)  on  place  of  contract;  (55  Am.  St.  Rep.  775,  777)  on  enforcement 
of  contract  outside  of  jurisdiction  where  made;  (5  Eng.  Rul.  Caa.  889)  on 


883  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  515 

presumption   that   parties   to   contract   intended   to   adopt  law   of  place   where 

contract  was  made. 

Contracts    limiting-    liability. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Mahoney,  148  Ind.  200,  40  L.  R.  A. 
104,  62  Am.  St.  Rep.  503,  46  N.  E.  917,  holding  common  carriers  may  contract 
as  private  carriers  for  exemption  from  liability;  Richmond  v.  Southern  P.  Co.  41 
Or.  57,  57  L.  R.  A.  618,  93  Am.  St.  Rep.  694,  67  Pac.  947,  holding  limited  liabil- 
ity agreement  with  person  riding  on  freight  train  ticket  not  enforceable  where 
such  trains  carry  passengers  generally;  Sager  v.  Northern  P.  R.  Co.  166  Fed. 
528;  Clough  v.  Grand  Trunk  Western  R.  Co.  11  L.R.A.(N.S.)  448,  85  C.  C.  A. 
1,  155  Fed.  83, — holding  a  railroad  company  might  enter  into  a  contract  ex- 
empting absolutely  from  liability  for  injuries  resulting  from  the  moving  of  a 
circus  train  owned  by  the  owners  of  the  circus. 

Cited  in  notes  (30  L.R.A.  161)  on  railroad  companies  as  private  carriers  in 
drawing  special  trains  or  special  cars;  (88  Am.  St.  Rep.  89,  126,  127,  128) 
on  limitation  of  carrier's  liability  in  bills  of  lading;  (230  Am.  St.  Rep.  35) 
on  liability  of  railroad  hauling  circus  train  under  special  contract;  (130  Am. 
St.  Rep.  48)  on  whether  injured  employee  of  car  owner  is  bound  by  contract 
between  car  owner  and  railroad. 
Common  law. 

Cited  in  note  (22  L.  R.  A.  506)  on  adoption  of  common  law  in  United  States. 

5  L.  R.  A.  515,  WESTERN  U.  TELEG.  CO.  v.  STEVENSON,  128  Pa.  442,  15  Am. 

St.  Rep.  687,  18  Atl.  441. 
Taking-   messages    not    -written   on    company's   blanks. 

Cited  in  note    (56  L.  R.  A.  747)    on  contracts  for  telegrams  not  written  on 
company's  blanks. 
Liability   for   negligence  as   to   telegrams. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Short,  9  L.  R.  A.  744,  which 
holds  company  prima  facie  liable  for  failure  to  deliver  telegram. 
Measure   of   damages. 

Cited  in  Bowie  v.  Western  U.  Teleg.  Co.  78  S.  C.  429,  59  S.  E.  65,  holding  a 
mill  company's  quotation  for  flour  delivered  at  a  place  miglit  be  taken  as  the 
true  market  value  in  computing  damages  for  a  mistake  in  sending  a  telegram 
quoting  prices  where  correctness  of  such  quotation  is  not*in  question. 

Cited  in  note  (38  L.  ed.  U.  S.  884)  on  damages  for  error  in  telegraph  message, 
or  failure  to  deliver. 
Contracts    limiting   liability. 

Cited  in  Willock  v.  Pennsylvania  R.  Co.  166  Pa.  189,  35  W.  N.  C.  547,  27  L.  R. 
A.  229,  45  Am.  St.  Rep.  674,  30  Atl.  948,  holding  common  carrier  cannot  stipu- 
late for  release  from  consequences  of  negligence  or  fraud;  Primrose  v.  Western 
U.  Teleg.  Co.  154  U.  S.  20,  38  L.  ed.  891,  14  Sup.  Ct.  Rep.  1098,  holding  stipulation 
limiting  liability  unless  message  is  repeated  at  sender's  expense  valid. 

Cited  in  footnotes  to  Birkett  v.  Western  U.  Teleg.  Co.  33  L.  R.  A.  404,  which 
liolds  valid,  condition  against  liability  beyond  amount  paid  for  sending  unre- 
peated  message;  Coit  v.  Western  U.  Teleg.  Co.  53  L.  R.  A.  678,  which  holds 
transmission  of  telegram  while  wires  working  badly  not  gross  negligence  if  wires 
working  well  when  actually  sent. 

Cited  in  notes  (13  L.R.A.  510)  on  effect  of  stipulations  in  contract  to  transmit 
telegram;  (11  L.R.A. (N.S.)  562)  on  validity  of  limitation  of  liability  for 
unrepeated  telegrams. 

Disapproved  in  effect  in  Reed  v.  \Vestern  U.  Teleg.  Co.  135  Mo.  668,  34  L.  R.  A. 


5  L.R.A.  515]  L.  R.  A.  CASES  AS  AUTHORITIES.  88* 

495,   58   Am.   St.   Rep.    609,   37    S.   W.   904,   holding   telegraph   company   cannot 
exempt  itself  by  contract  from  liability  for  negligence. 
Primary   and    secondary    evidence. 

Cited  in  Williamsport  v.  Citizens'  Water  &  Gas  Co.  232  Pa.  249,  81  Atl.  316, 
holding  that  in  order  to  exclude  evidence  under  best  evidence  rule,  it  must 
appear  that  evidence  not  produced  is  of  higher  grade;  American  Mfg.  Co.  use 
of  Doniphan  v.  S.  Morgan  Smith  Co.  33  Pa.  Super.  Ct.  473,  distinguishing 
between  primary  and  secondary  evidence;  Dotterer  v.  State,  172  Ind.  367,  30 
L.R.A.(N.S.)  854,  88  N.  E.  689,  holding  the  fact  that  a  witness  has  been  con- 
victed of  a  crime  may  be  shown  by  his  parol  testimony  on  cross-examination. 

Cited  in  note  (11  Eng.  Rul.  Cas.  506)  on  kinds  of  secondary  evidence  in 
respect  to  lost  instrument. 

5  L.  R.  A.  517,  REID  v.  SMOULTER,  128  Pa.  324,  18  Atl.  445. 
Abolition    of    established    office. 

Cited  in  Com.  ex  rel.  Atty.  Gen.  v.  Samuels,  163  Pa.  286,  34  W.  N.  C.  430,  29 
Atl.  909,  holding  act  transferring  duties  and  powers  of  county  auditor  to  county 
comptroller  void  as  impliedly  abolishing  former  office;  People  ex  rel.  Burby  v. 
Howland,  155  N".  Y.  279,  41  L.  R.  A.  841,  49  N.  E.  775,  Affirming  17  App.  Div.  172, 
45  N.  Y.  Supp.  347,  holding  act  taking  away  exercise  of  criminal  jurisdiction  by 
justices  of  peace,  and  denying  them  compensation  for  such  business,  void;  Mas- 
senburg  v.  Bibb  County,  96  Ga.  617,  23  S.  E.  998,  holding  abolition  of  office  of 
county  treasurer  by  statute  void  where  office  recognized  by  Constitution;  Morris 
v.  Glover,  121  Ga.  755,  49  S.  E.  786,  holding  a  local  act  providing  for  the  con- 
solidation of  the  office  of  county  treasurer  with  that  of  county  clerk  and  vesting 
the  county  clerk  with  the  duties  of  the  treasurer  was  unconstitutional  as  being 
the  abolishment  by  indirection  of  an  office  which  the  legislative  body  under  the 
Constitution  did  not  have  power  to  abolish;  State  ex  rel.  Thurmond  v.  Shreve- 
port,  124  La.  187,  134  Am.  St.  Rep.  496,  50  So.  3,  holding  court  may  interfere 
on  mandamus  where  a  city  council  having  no  authority  to  abolish  the  office  of 
auditor  attempts  to  accomplish  such  result  by  reducing  the  salary  so  low  that 
no  competent  person  can  accept  it;  State  ex  rel.  Tolerton  v.  Gordon,  236  Mo. 
166,  139  S.  W.  403,  to  the  point  that  repeal  of  statute  providing  for  salary  of 
officer  is  equivalent  to  removal  of  officer  from  office;  Re  County  Auditor,  26 
Lane.  L.  Rev.  118,  holding  that  act  providing  for  election  of  controller  abolishes 
office  of  auditor,  where  constitution  enumerates  such  offices  in  alternative  as 
county  offices. 

Cited  in  note  (135  Am.  St.  Rep.  259)  on  mandamus  as  remedy  for  illegal 
attempt  to  abolish  constitutionally  established  office. 

Distinguished  in  Bugg  v.  Sebastian  County,  64  Ark.  517,  43  S.  W.  506,  holding 
act  reducing  salary  of  tax  collector,  but  not  to  point  where  office  could  not  be 
filled  satisfactorily,  not  unconstitutional. 
Constitutional   independence   of   conrts. 

Cited  in  McCully  v.  State,  102  Tenn.  635,  46  L.  R.  A.  598,  53  S.  W.  134   (dis- 
senting opinion),  majority  holding  abolition  of  circuit  or  chancery  court  by  con- 
current vote  of  legislature  exercise  of  constitutional  power. 
Local    or    private    legislation. 

Cited  in  Lloyd  v.  Smith,  176  Pa.  219,  38  W.  N.  C.  365,  35  Atl.  199,  Reversing 
8  Kulp,  130,  holding  act  ci'eating  office  of  comptroller  in  counties  having  certain 
population,  constitutional;  Powell  v.  Durclen,  61  Ark.  26,  31  S.  W.  740,  holding 
abuse  of  discretion  in  fixing  amounts  of  salaries  by  special  law  remediable  in 
court;  Weston  v.  Herdman,  04  Neb.  28,  89  N.  W.  384,  holding  act  unnecessary 
to  appropriate  salary  for  reporter,  clerk,  and  librarian  of  court. 


885  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  519 

Cited  in  footnotes  to  Herndon  v.  Imperial  F.  Ins.  Co.  18  L.  R.  A.  547,  which 
•denies  legislative  power  to  give  right  to  rehearing  contrary  to  court  rule;  Mil- 
waukee County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating  sheriff's 
fees  for  particular  county,  local;  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A. 
584,  which  holds  statute  as  to  taxes,  not  applying  to  all  parts  of  state,  uncon- 
stitutional. 
Repeal  by  amendment. 

Cited  in  Luzerne  Water  Co.  v.  Toby  Creek  Water  Co.  148  Pa.  570,  24  Atl.  117, 
Affirming  6  Kulp,  238,  holding  omission  of  water  companies  in  amendment  of 
June  2,  1887,  impliedly  repeals  exclusive  privileges  granted  by  act  April  29,  1874; 
Lehigh  Valley  Coal  Co.  v.  United  States  Pipe  Line  Co.  3  Pa.  Dist.  R.  71,  holding 
act  of  June  2,  1883,  as  amending  act  1874  as  to  transportation  of  petroleum, 
invalid;  Re  Thirty-eighth  WTard  Election,  35  Pa.  Super.  Ct.  260;  Lehigh  Valley 
Coal  Co.  v.  United  States  Pipe  Line  Co.  7  Kulp,  78;  Com.  ex  rel.  Conahay  v. 
Anderson,  11  North.  Co.  Rep.  387,  18  Pa.  Dist.  R.  599,  11  Del.  Co.  Rep.  56; 
Re  Martin,  209  Pa.  2<38,  58  Atl.  478,  29  Pa.  Co.  Ct.  292,  12  Luzerne  Leg.  Reg. 
Rep.  40, — on  an  amendment  as  operating  as  a  repeal  of  former  provisions  not 
incorporated  in  the  amendment. 
Power  of  appointment. 

Distinguished  in  Robinson  v.  Lloyd,   10  Kulp,   56,   holding  power  to  appoint 
assistant  clerks  of  orphans'  court  vested  in  register. 
Chnug-c  of  salary  of  subordinate  officer  during  term. 

Cited  in  note  (37  L.R.A. (N.S.)  390)  on  change  of  salary  of  subordinate,  .as 
violating  constitutional  provision  against  changing  public  officer's  salary  during 
term. 

5  L.  R.  A.  519,  MANDEL  v.  McCLAVE,  46  Ohio  St.  407,  15  Am.  St.  Rep.  627, 
22  N.  E.  290. 

Followed  without  discussion  in  Finley  v.   Bank,  52  Ohio  St.  624,  44  N.  E. 
1135. 
Inchoate    dower    right. 

Cited  in  Crosby  v.  Farmers'  Bank,  107  Mo.  444,  17  S.  W.  1004,  holding  in- 
choate right  of  dower  to  be  such  interest  as  equity  will  protect  from  fraudulent 
sale;  Green  v.  Estabrook,  168  Ind.  127,  120  Am.  St.  Rep.  349,  79  N.  E.  373, 
on  wife's  inchoate  right  of  dower  how  barred;  Fletcher  v.  Huntington,  8  Ohio 
N.  P.  335,  11  Ohio  S.  &  C.  P.  Dec.  341,  holding  that  unassigned  right  of  dower 
is  an  interest  in  real  estate;  Weyer  v.  Sager,  21  Ohio  C.  C.  714,  12  Ohio  C.  D. 
193,  holding  that  unassigned  dower  right  may  be  aliened  to  a  stranger;  Winkler 
v.  State,  20  Ohio  C.  C.  361,  11  Ohio  C.  D.  124,  on  value  of  contingent  dower 
right. 

Cited  in  notes  (13  L.  R.  A.  442)  on  bar  of  inchoate  right  of  dower;  (18  L. 
R.  A.  77)  on  power  of  husband  or  his  creditors  to  defeat  wife's  right  to  dower; 
(39  Am.  St.  Rep.  35)  on  assignment  of  dower;  (18  L.R.A.  77)  on  power  of 
husband,  or  his  creditors,  to  defeat  wife's  right  of  dower. 

Distinguished  in  Haggerty  v.  Wagner,  148  Ind.  649,  39  L.  R.  A.  392,  48  N.  E. 
366,  holding  dower  extinguished  by  partition  sale  in  action  in  which  wife  not 
made  party. 
—  Encumbered  property. 

Cited  in  Sprague  v.  Law,  17  Ohio  C.  C.  737,  holding  wife  dowable  as  against 
judgment  creditor  in  entire  proceeds  of  property  sold  under  foreclosure  of  mort- 
gage executed  by  husband  before  marriage;  Society  for  Savings  v.  Drake,  10 
Ohio  C.  C.  60,  holding  wife  joining  in  mortgage  dowable  in  entire  proceeds  of 


5  L.R.A.  519]  L.  R.  A.  CASES  AS  AUTHORITIES.  886 

sale  on  foreclosure  for  more  than  mortgage  debt;  Smith  v.  Rothschild,  4  Ohio 
C.  C.  551,  holding  wife  consenting  to  partition  sale,  free  of  dower,  by  trustee 
for  husband's  creditors,  entitled  to  compensation  for  dower  right;  Joyce  v. 
Dauntz,  55  Ohio  St.  552,  45  N.  E.  900,  holding  purchaser  of  mortgaged  premises 
for  full  value,  entitled  to  be  subrogated  to  rights  of  first  mortgagee  to  extent 
that  purchase  was  applied  on  his  mortgage  as  against  subsequent  incumbran- 
cers;  Hewitt  v.  Cox,  55  Ark.  231,  15  S.  W.  1026,  holding  widow  cannot  compel 
administrator  to  apply  personalty  to  debt  secured  by  mortgage  in  which  she 
joined,  as  her  dower  right  covers  only  equity  of  redemption ;  Jewett  v.  Feld- 
heiser,  68  Ohio  St.  534,  67  N.  E.  1072,  holding  purchase  under  judgment  does 
not  affect  wife's  interest;  Sprague  v.  Law,  7  Ohio  N.  P.  555.  5  Ohio  S.  &  C. 
P.  Dec.  559;  Moerlein  Brewing  Co.  v.  Westmeier,  4  Ohio  C.  C.  300,  2  Ohio  C.  D. 
558, — holding  that  wife's  dower  should  be  computed  upon  total  proceeds  of  sale 
of  encumbered  property  and  paid  out  of  surplus;  Fleming  v.  Jordan,  28  Ohio. 
L.  J.  333,  11  Ohio  Dec.  Reprint,  689,  holding  that  dower  should  be  computed 
in  total  proceeds  of  sale  of  encumbered  property  including  proceeds  of  insurance 
policy  thereon  where  part  of  property  was  destroyed;  Kilgore  v.  Miller,  19  Ohio 
C.  C.  96,  10  Ohio  C.  D.  466,  holding  that  where  mortgage  on  several  tracts 
including  homestead  is  released  as  to  the  latter,  a  judgment  creditor  cannot 
have  the  mortgage  enforced  so  as  to  reach  such  homestead. 

Cited  in  footnotes  to  Kursheedt  v.  Union  Dime  Sav.  Inst.  7  L.  R.  A.  229, 
which  holds  inchoate  right  of  dower  not  cut  off  by  judgment  in  foreclosure  suit 
in  which  mortgagor's  wife  not  served;  Holden  v.  Dunn,  19  L.  R.  A.  481,  which 
holds  widow  entitled  to  dower  in  excess  paid  at  foreclosure  sale  after  husband's 
death. 

Distinguished  in  Re  Hays,  104  C.  C.  A.  656,  181  Fed.  677;  Nichols  v.  French, 
83  Ohio  St.  167,  93  N.  E.  897, — holding  that  dower  should  be  computed  only  ih 
surplus  in  case  of  sale  of  property  for  purchase  money  mortgage  executed  by 
husband  before  marriage;  Re  Lingafelter,  32  L.R.A.(N.S.)  103,  104  C.  C.  A.  38, 
181  Fed.  29,  holding  that  where  mortgage  in  which  wife  has  joined  is  set  aside 
as  void,  her  dower  right  is  restored. 

Disapproved  in  Hoy  v.  Varner,  100  Va.  607,  42  S.  E.  690,  holding  wife  sign 
ing  deed  of  trust  only  entitled  to  dower  in  surplus. 

5  L.  R.  A.  523,  BARTLETT  v.  PATTON,  33  W.  Va.  71,  10  S.  E.  21. 
Construction    of    will. 

Cited  in  Hawes  v.  Kepley,  28  Ind.  App.  311,  62  N.  E.  720,  holding  additional 
gift  to  son  not  implied  from  expression  in  will  "tried  to  make  equitable  distribu- 
tion" of  property,  where  devise  to  him  is  smaller  than  to  other  children;  Carney 
v.  Kain,  40  W.  Va.  820,  23  S.  E.  650,  holding  devise  to  the  living  heirs  in  event 
of  unborn  donees  not  coming  into  existence  implied  where  will  throughout  ex- 
cludes heirs  in  favor  of  issue  in  existence  at  death  of  survivor  of  testator's 
children;  Martin  v.  Martin,  52  W.  Va.  395,  44  S.  E.  198,  holding  devise  to  one 
and  his  children  does  not  entitle  latter  to  maintain  partition  against  former: 
Coberly  v.  Earle,  60  W.  Va.  302,  54  S.  E.  336,  on  the  presumption  against 
testator  having  intended  any  bequest  or  devise  not  set  forth  in  the  will. 

Cited  in  notes   (7  L.  R.  A.  420)   on  bequests  giving  life  estates  only;    (8  L.  R. 
A.   741)    on  construction   of  will;    (16   L.R.A.(N.S.)    484)    on  effect  of  bequest 
for  life  of   chattels   consumable   in  use;    (21   Am.  St.   Rep.   747;    14   Eug.   Rul. 
Cas.  655)    on  construction  of  wills. 
Title  by  Implication. 

Cited  in  Griffin  v.  Fairmont  Coal  Co.  59  W.  Va.  58],  2  L.R.A.(N.S-)  1162. 
53  S.  E.  24  (dissenting  opinion),  on  a  deed  as  passing  title  by  implication. 

Cited  in  note   (15  L.R.A.  (N.S.)    74)   on  devise  or  bequest  by  implication. 


887  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  531 

Interest  of   Hfe   tenant  In   personal  estate. 

Cited  in  McDonald  v.  Jarvis,  64  W.  Va.  66,  131  Am.  St.  Rep.  889,  80  S.  E. 
990,  on  the  rights  of  life  tenant  as  affecting  personal  estate;  Roush  v.  Hyre, 
62  W.  Va.  128,  57  S.  E.  368,  holding  the  personal  representative  of  a  deceased 
life  tenant  was  chargeable  with  all  the  principal  sum  received  from  the  sale 
of  personal  estate  by  the  life  tenant  with  interest  from  death  of  life  tenant; 
Behrens  v.  Baumann,  66  W.  Va.  59,  27  L.R.A.  (N.S.)  1094,  66  S.  E.  5,  holding 
that  life  tenant  is  not  bound  to  account  for  such  things  as  are  consumable  in 
use  thereof. 
Admlssiblllty  of  declarations  against  Interest. 

Cited  in  Smith  v.  Moore,  142  N.  C.  289,  7  L.R.A.(N.S.)  690,  55  S.  E.  275, 
holding  the  declarations  of  a  grantor  since  deceased,  not  in  privity  with  either 
party  to  the  suit  as  to  the  reason  for  her  making  a  deed  of  land  were  admis- 
sible as  against  interest;  Peters  v.  Nolan  Coal  Co.  61  W.  Va.  397,  9  L.R.A. (N.S.) 
992,  56  S.  E.  735,  holding  a  deed  containing  admissions  of  a  nature  against 
interest  of  parties  is  admissible  in  evidence  by  a  stranger. 

Cited  in  notes    (94  Am.  St.  Rep.  675)   on  admissibility  against  third  persons 
of  declarations  of  deceased  person;    (2  Brit.  Rul.  Cas.  670)   on  admissibility  as 
between  third  parties  of  book  entries  against  interest  by  deceased  persons. 
Impeachment   of   verdict,   by   jurors. 

Cited  in  State  v.  Cobbs,  40  W.  Va.  724,  22  S.  E.  310,  holding  verdict  of  mur- 
der in  first  degree,  punishable  by  death,  cannot  be  impeached  by  affidavit  of 
jurors  that  they  were  ignorant  tha£  choice  of  punishment  rested  with  them, 
and  referring  with  approval  to  annotation  in  5  L.  R.  A.  523;  Re  Merriam,  108 
Mich.  463,  66  N.  W.  372,  holding  affidavit  of  jurors  as  to  misconduct  and  preju- 
dice of  other  members  of  panel  not  admissible  to  impeach  verdict;  Pickens  v. 
Coal  River  Boom  &  Timber  Co.  58  W.  Va.  20,  50  S.  E.  872,  6  A.  &  E.  Ann. 
Cas.  285,  holding  affidavits  of  jurors  are  not  admissible  to  prove  that  the  plain- 
tiff in  an  action  treated  them  to  liquor  during  the  trial  on  a  motion  to  set 
aside  a  verdict;  State  v.  Harris,  69  W.  Va.  248,  —  L.R.A. (N.S.)  — ,  71  S.  E. 
609,  to  the  point  that  evidence  of  jurors  will  not  be  received  to  impeach  their 
verdict. 

Cited  in  notes  (9  L.  R.  A.  820,  821;  11  L.  R.  A.  706)  on  juror  impeaching  his 
own  verdict;  (31  L.  R.  A.  489)  on  right  of  jurors  to  act  on  their  own  knowledge 
of  facts  in,  or  relevant  to,  the  issue. 

5  L.  R.  A.  529,  THOMAS  v.  ARMSTRONG,  86  Va.  323,  10  S.  E.  6. 
Statute     of    frauds. 

Cited  in  Reed  v.  Gold,  102  Va.  50,  45  S.  E.  868,  holding  an  oral  subscription 
to  stock  is  not  within  the  provisions  of  the  statute  of  frauds  relating  to  agree- 
ments not  to  be  performed  within  year  where  title  passes  at  once  though  payment 
not  to  be  completed  within  year. 

Cited  in  footnote  to  Lewis  v.  Tapman,  47  L.  R.  A.  385,  which  holds  contract 
to  marry  "within  three  years"  not  within  statute  of  fraiuls. 

Cited  in  notes  (7  L.R.A.  785)  on  contracts  not  to  be  performed  within  one 
year;  (15  L.R.A. (N.S.)  329)  on  effect  of  statute  of  frauds  upon  parol  contracts 
for  services  performable  within  a  year,  though  not  so  intended;  (138  Am.  St. 
Rep.  602)  on  agreements  not  to  be  performed  within  a  year;  (6  Eng.  Rul.  Caa. 
305)  on  validity  of  agreement  to  be  performed  on  a  contingency  which  may  take 
place  within  a  year. 

5  L.  R.  A.  531.  \YELLS  T.  COLLINS,  74  Wis.  341,  43  N.  W.  160. 
Delivery   to   third    party. 

Cited  in  Bickford  v.  Mattocks,  95  Me.  551,  50  Atl.  894,-  holding  no  delivery  of 


5  L.R.A.  531]  L.  E.  A.  CASES  AS  AUTHORITIES. 

note  and  mortgage  to  donee  in  whose  favor  made  out,  where  donor  places  papers 
in  hands  of  third  party  for  delivery,  which  does  not  take  place,  and  donor  sub- 
sequently accepts  payment  of  note  himself;  Flaherty  v.  O'Connor,  24  R.  I.  590, 
54  Atl.  376,  holding  delivery  to  third  person  of  money  to  pay  funeral  expenses 
of  a  deceased  daughter,  and  to  pay  the  remainder  to  certain  others,  constituted 
such  party  an  agent  of  the  donor  ao  that  gift  could  be  revoked  before  the 
delivery  was  made  to  the  donees. 
Incompatible  relations  between  principal  and  agent. 

Cited  in  note  (9  L.  R.  A.  795)   on  agent  assuming  incompatible  relations. 

5  L.  R.  A.  533,  TURNER  v.  IRON  CHIEF  MIN.  CO.  74  Wis.  355,  17  Am.  St. 

Rep.  168,  43  N.  W.  149. 
Maturity    of    demand    note. 

Cited  in  Peninsular  Sav.  Bank  v.  Hosie,  112  Mich.  355,- 70  N.  W.  890,  hold- 
ing indorsers  on  time  note  not  discharged  by  taking  of  demand  note  by  payee  at 
maturity  thereof,  since  no  extension  of  time  thereby  obtained;  House  v.  Peacock, 
84  Conn.  55,  78  Atl.  723,  holding  that  note  payable  "on  demand  after  date" 
is  so  payable  although  made  to  bear  interest  from  date;  Barry  v.  Minahan,  127 
Wis.  573,  107  N.  W.  488,  holding  cause  of  action  upon  a  demand  note  accrues 
at  the  time  of  the  loan. 
Demand  of  payment  and  notice  of  nonpayment. 

Cited  in  Harrisburg  Nat.  Bank  v.  Moffit,  3  Dauphin  Co.  Rep.  75,  24  Pa.  Co. 
Ct.  118,  and  Home  Sav.  Bank  v.  Hosie,  119  Mich.  130,  77  N.  W.  625,  holding 
indorsers  discharged  where  demand  not  made  for  two  and  a  half  years  after  in- 
dorsement; Leonard  v.  Olson,  99  Iowa,  171,  35  L.  R.  A.  384,  footnote,  p.  381,  61 
Am.  St.  Rep.  230,  68  N.  W.  677,  holding  indorser  discharged  by  delay  of  ten  years 
in  making  demand,  where  no  notice  of  inability  served;  Oley  v.  Miller,  74  Conn. 
-311,  50  Atl.  744,  holding  question  of  what  is  reasonable  time  for  presentment  and 
•demand,  for  jury. 

Cited  in  footnotes  to  Oakley  v.  Carr,  60  L.  R.  A.  431,  which  holds  notice  of 
dishonor  sufficient  if  sent  to  last  indorser,  who  is  agent  for  collection  only,  by 
first  mail  of  day  following  dishonor;  Williams  v.  Parks,  56  L.  R.  A.  759,  which 
sustains  notary's  liability  on  bond,  for  neglecting  to  give  notice  of  dishonor; 
Greeley  v.  Whitehead,  28  L.  R.  A.  286,  which  holds  failure  to  properly  present 
note  for  payment  waived  by  paying  interest  after  maturity. 

Cited  in  note  (12  L.  R.  A.  727)   on  presentment  and  demand  for  payment. 

5  L.  R.  A.  536,  COM.  v.  KING,  150  Mass.  221,  22  N.  E.  905. 
State    jurisdiction    over    navigable    waters. 

Cited  in  Manchester  v.  Massachusetts,  139  U.  S.  264,  35  L.  ed.  166,  11  Sup. 
€t.  Rep.  559,  Affirming  152  Mass.  248,  9  L.  R.  A.  243,  23  Am.  St.  Rep.  820,  25 
N.  E.  113,  holding  statute  regulating  menhaden  fisheries  in  Buzzard's  bay  con- 
stitutional in  absence  of  Federal  statute  in  regard  thereto;  Hutton  v.  Webb,  124 
N.  C.  754,  59  L.  R.  A.  40,  33  S.  E.  169  (dissenting  opinion),  as  to  streams  not 
technically  navigable  being  exclusively  within  state  jurisdiction. 
Judicial  notice. 

Cited  in  footnote  to  Richardson  v.  Buhl,  6  L.  R.  A.  458,  which  holds  that  na- 
ture of  illegal  contracts  will  be  judicially  noticed  by  courts  sna  sponte. 

Cited  in  note  (82  Am.  St.  Rep.  44G)  on  judicial  notice  of  localities  and 
^boundaries. 


889  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  540 

5  L.  R.  A.  538,  JONES  v.  ATCHISON,  T.  &  S.  F.  R.  CO.  150  Mass.  304,  23  N.  E. 

43. 
Execution   of   trust   by   executor. 

Cited  in  Haskell  v.  Hill,  169  Mass.  129,  47  N.  E.  586,  holding  duty  to  carry 
out  trusts  created  by  will  devolves  on  executor  in  absence  of  appointment  of 
trustee  by  probate  court;  Robinson  v.  Robinson,  105  Me.  71,  32  L.R.A.(N.S.) 
679,  134  Am.  St.  Rep.  537,  72  Atl.  883,  holding  that  power  of  sale  by  trustee 
will  be  implied  when  he  is  charged  with  duty  which  cannot  be  performed  without 
power  of  sale. 
Cbangre  of  investments  by  executor. 

Cited  in  Taft  v.  Decker,  182  Mass.  109,  65  N.  E.  507,  on  the  necessity  or 
sufficiency  of  probate  proceedings  to  authorize  change  of  investments. 

5  L.  R.  A.  540,  MAYER  v.  DEAN,  115  N.  Y.  556,  22  N.  E.  261. 
Motion    to    gro    to    jury. 

Cited  in  Robbins  v.  Springfield  F.  &  M.  Ins.  Co.  79  Hun,  119,  29  N.  Y.  Supp. 
513;  United  States  v.  Bishop,  60  C.  C.  A.  125,  125  Fed.  183;  Lagerquist  v.  United 
States  Industrial  Ins.  Co.  89  Hun,  26,  35  N.  Y.  Supp.  38, — holding,  where  both 
sides  request  direction  of  verdict,  facts  may  be  determined  by  trial  judge;  Camp- 
bell v.  Prague,  6  App.  Div.  561,  39  N.  Y.  Supp.  558,  holding  that  by  request- 
ing a  verdict  defendant  does  not  waive  right  of  submission  to  jury  of  specific 
questions  of  fact;  Stanford  v.  McGill,  6  N.  D.  572,  38  L.  R,  A.  773,  72  N.  W.  938; 
Palmer  v.  Field,  76  Hun,  232,  27  N.  Y.  Supp.  736;  Colejnan  v.  Pickett,  82  Hunr 
288,  31  N.  Y.  Supp.  480;  Groves  v.  Acker,  85  Hun,  49*3,  33  N.  Y.  Supp.  406; 
Second  Nat.  Bank  v.  Weston,  31  App.  Div.  406,  52  N.  Y.  Supp.  315;  Stokes  v. 
Mackay,  46  N.  Y.  S.  R.  945,  19  N.  Y.  Supp.  918;  Riley  v.  Black,  48  N.  Y.  S.  R. 
762,  20  N.  Y.  Supp.  695;  Flandreau  v.  Elsworth,  151  N.  Y.  482,  4  N.  E.  853; 
Riley  v.  Black,  1  Misc.  293,  20  N.  Y.  Supp.  695;  Phenix  Ins.  Co.  v.  Kerr,  129- 
Fed.  724, — holding  asking  for  direction  of  verdict,  without  questioning  submission, 
of  specific  question  of  fact,  waives  right  to  go  to  jury;  Litt  v.  Wabash  R.  Co. 
50  App.  Div.  552,  64  N.  Y.  Supp.  108,  holding  that  exception  and  statement  that 
damages  was  question  for  jury  was  equivalent  to  request  that  that  question  be 
submitted;  Bowers  v.  Ocean  Acci.  &  Guarantee  Corp.  110  App.  Div.  697,  97 
N.  Y.  Supp.  485,  holding  that  where  both  parties  move  for  a  directed  verdict, 
and  several  issues  are  involved,  and  afterward  one  party  asks  to  have  the  case 
sent  to  the  jury,  it  is  not  error  to  deny  the  motion  where  he  fails  to  state 
the  questions  to  be  submitted. 
Inspection  of  groods. 

Cited  in  Meagely  v.  Hoyt,  3  Silv.  Ct.  App.  429,  26  N.  E.  719.  raising,  but  not 
deciding,   question   whether   plaintiff   not   bound   to   inspect  goods   bought,   upon 
receipt. 
Evidence  of  statements  by  agent. 

Cited  in  Duffus  v.  Schwinger,  7  Misc.  501,  27  N.  Y.  Supp.  949,  holding,  upon 
establishment  of  agency,  admission  of  agent  within  scope  of  authority  admissible 
against  principal;  Pharo  v.  Beadleston,  42  X.  Y.  S.  R.  112,  17  N.  Y.  Supp.  730, 
holding  evidence  as  to  fraudulent  representations  offered  not  to  modify,  but  avoid, 
contract;  Cullinan  v.  Fidelity  &  C.  Co.  41  Misc.  122,  83  N.  Y.  Supp.  969,  holding 
that  surety  admitting  existence  of  hotel  at  place  mentioned  in  complaint  admits 
certificate  in  force  there;  Ettlinger  v.  Weil,  94  App.  Div.  297,  87  N.  Y.  Supp. 
1049,  holding  vendors  bound  by  broker's  use  of  fraudulent  letter  which  former 
sent  latter;  Wilson  v.  Pritchett,  99  Md.  593,  58  Atl.  360,  holding  admissible, 
evidence  of  false  statements  of  agent  in  selling  goods. 


5  L.K.A.  540]  L.  R.  A.  CASES  AS  AUTHORITIES.  890 

Distinguished  in  Metropolitan  Aluminum  Mfg.  Co.  v.  Lau,  61  Misc.  107,  112 
N.  Y.  Supp.  1059,  holding  where  agent  agreed  that  order  was  taken  subject  to 
countermand  but  the  contract  stated  it  was  not  parol  evidence  of  the  agreement 
was  not  admissible. 
Powers    Incidental    to    agency. 

Cited  in  Moore  v.  King,  57  Hun,  227,  10  N.  Y.  Supp.  651,  holding  agent  to  sell 
authorized  to  make  warranty;  Eppens,  S.  &  W.  Co.  v.  Littlejohn,  164  N.  Y.  195, 
52  L.  R.  A.  814,  58  N.  E.  19,  holding  agent  to  sell  may  contract  as  to  time  of  de- 
livery of  goods  sold;  Grillenberger  v.  Spencer,  7  Misc.  606,  27  N.  Y.  Supp.  864, 
upholding  authority  of  agent  under  power  of  attorney  to  extend  time  of  perform- 
ance of  contract  for  exchange  of  land. 
Rule  as  to  liability  on  receiving  proceeds  of  fraud. 

Cited  in  Jones  v.  Jones,  120  N.  Y.  599,  24  N.  E.  1016,  holding  grantee  of 
premises  affected  by  fraudulent  representation  of  agent;  Aaron  v.  De  Castro,  36 
N.  Y.  S.  R.  717,  13  X.  Y.  Supp.  372,  holding  principal  selling  stock  responsible 
for  representations  of  his  agent;  French  v.  Stevenson,  32  N.  Y.  S.  R.  768,  10  N. 
Y.  Supp.  386,  refusing  to  enforce  in  hands  of  assignee  judgment  principal  has 
fraudulently  refused  to  discharge  after  receiving  proceeds;  Steinbach  v.  Pru- 
dential Ins.  Co.  62  App.  Div.  138,  70  N.  Y.  Supp.  809,  holding  insurance  company 
retaining  premiums  chargeable  with  fraud  or  mistake  of  its  agent;  Oehlhof  v. 
Soloman,  73  App.  Div.  333,  76  N.  Y.  Supp.  716,  holding  party  sharing  in  proceeds 
of  fraudulent  sale  liable  for  damages;  Gunther  v.  Ullrich,  82  Wis.  228,  33  Am. 
St.  Rep.  32,  52  N.  W.  88,  holding  principals  liable  for  damages  through  fraudu- 
lent representations  «f  agent. 

Distinguished  in  Carroll  v.  Tucker,  2  Misc.  400,  21  N.  Y.  Supp.  952,  holding 
rule  that  a  principal  cannot  profit  by  agent's  fraud  not  applicable  to  delegation 
of  agency. 
Fraud    vitiating    contract. 

Cited  in  Schumaker  v.  Mather,  38  N.  Y.  S.  R.  552,  14  N.  Y.  Supp.  411,  holding 
question  as  to  known  falsity  of  representations,  and  whether  relied  on  and 
actually  deceiving,  for  jury;  Griffith  v.  Strand,  19  Wash.  694,  54  Pac.  613,  hold- 
ing it  immaterial  whether  fraud  relates  to  consideration  or  execution  of  con- 
tract. 
Proof  of  fraud  In  action  for  purchase  price. 

Cited   in   Elgin   Jewelry   Co.   v.    Withaup,   118   Mo.   App.   133,   94   S.   W.   572, 
holding  that  where  rescission  for  fraud  is  set  up  as  a  defense  to  an  action  for 
the  purchase  price,  testimony  may  be  received  in  proof  of  the  fraud. 
\Vurrniity  on  sale  by  sample. 

Cited  in  notes   (70  L.R.A.  660,  665)   on  warranty  on  sale  of  goods  by  sample; 
(29  L.R.A.  (N.S.)   142)   as  to  whether  sale  by  sample  excludes  implied  warranty 
other  than  of  conformity  thereto. 
Artmissilillity    of   parol    warranty    on    sale. 

Cited  in  note  (19  L.R.A.  (X.S.)  1197)  on  right  to  show  parol  warranty  in 
connection  with  contract  of  sale  of  personalty. 

5  L.  R.  A.  541,  SCHLUTER  v.  BOWERY  SAV.  BANK,  117  N.  Y.  125,  15  Am.  St. 

Rep.  494,  22  N.  E.  572. 
Banks   and   banking. 

Cited  in  note   (7  L.  R.  A.  93)   on  banks  and  banking. 
Payment    to    representative. 

Cited  in  Re  Hobson,  61  Hun,  511,  1C  N.  Y.  Supp.  371,  holding  administrator  a 
trustee  entitled  to  collect  trust  bond  and  discharge  securing  mortgage;  People 


891  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  541 

ex  rel.  Lewkowitz  v.  Fitzgerald,  29  Abb.  N.  C.  473,  21  N.  Y.  Supp.  912,  compel- 
ling recording  of  satisfaction  of  mortgage  discharged  by  foreign  executor  of 
mortgagee;  Walker  v.  State  Trust  Co.  24  Misc.  501,  53  N.  Y.  Supp.  849,  uphold- 
ing payment  of  bank  to  special  guardian  of  infant  as  depositor;  Czech  v.  Bean, 
35  Misc.  734,  72  N.  Y.  Supp.  402,  holding  mortgagor  would  be  justified  in  paying 
special  administrator  of  mortgagee;  Grah'ng  v.  Irving  Sav.  Inst.  37  Misc.  23,  74 
N.  Y.  Supp.  741,  upholding  payment  of  deposit  in  name  of  "D.  or  G."  to  execu- 
trix of  "D."  upon  presentation  of  book,  letters,  and  check;  Maas  v.  German  Sav. 
Bank,  176  N.  Y.  380,  98  Am.  St.  Rep.  689,  68  N.  E.  658,  Affirming  73  App.  Div. 
527,  77  N.  Y.  Supp.  256,  Reversing  36  Misc.  155,  72  N.  Y.  Supp.  1068,  which  Af- 
firmed 35  Misc.  194,  71  N.  Y.  Supp.  483,  upholding  payment  to  foreign  instead  of 
domestic  administrator,  no  creditors  being  affected;  McCully  v.  Cooper,  114  Cal. 
261,  35  L.  R.  A.  494,  55  Am.  St.  Rep.  66,  46  Pac.  82,  holding  ancillary  may  re- 
cover from  domiciliary  administrator  certificate  of  deposit  of  bank  in  ancillary 
administrator's  state;  Overby  v.  Gordon,  13  App.  D.  C.  423  (dissenting  opinion), 
majority  holding  record  of  foreign  court  granting  administration  not  admissible 
in  Georgia  as  proof  of  residence;  Re  Williams,  130  Iowa,  562,  107  N.  W.  608, 
holding  payment  to  a  foreign  administrator  was  valid  as  against  the  claims 
of  an  ancilliary  one  subsequently  appointed  within  the  state;  Zeigler  v.  Storey, 
220  Pa.  477,  17  L.R.A.(N.S.)  878,  69  Atl.  894,  holding  a  payment  to  an  adminis- 
trator appointed  by  a  court  having  jurisdiction,  made  in  good  faith  is  a  legal 
discharge  of  the  debtor. 

Cited  in  notes  (21  L.R.A.  153)  on  validity  of  acts  done  by  executor  or  admin- 
istrator under  letters  testamentary,  or  of  administration  afterwards  revoked  or 
held  invalid;    (29  L.R.A. (N.S.)    68)    on  payment  of  deposit  to  credit  of  minor 
to  person  other  than  guardian. 
Trusts. 

Cited  in  Beeman  v.  Beeman,  88  Hun,  15,  34  N.  Y.  Supp.  484,  holding  explicit 
declaration  of  intention  must  be  shown  to  establish  trust;  Farleigh  v.  Cadman. 
159  N.  Y.  172,  53  N.  E.  808,  holding  deposit  in  savings  bank  in  name  of  trustee 
for  another  an  irrevocable  trust;  Wadd  v.  Hazleton,  62  Hun,  608,  17  N.  Y.  Supp. 
410,  enforcing  voluntary  trust  to  deliver  assignment  of  bond  and  mortgage  after 
assignor's  death. 

Cited  in  note    (32  L.  R.  A.  375)    on  effect  of  depositing  money  in  bank  in 
trust  for  third  person. 
Conflict    of    laws. 

Cited  in  General  Conference  Asso.  v.  Michigan  Sanitarium  &  Benev.  Asso.  166 
Mich.  506,  132  N.  W.  94,  holding  that  holder  of  notes  payable  to  deceased  person, 
indorsed  by  executor,  appointed  at  decedent's  domicil  may  sue  maker,  a  cor- 
poration having  principal  place  of  business  in  this  state. 

Cited  in  note  (57  L.  R.  A.  364)  on  conflict  of  laws  as  to  matrimonial  law  as  to 
property. 

Gifts. 

Cited  in  Hannan  v.  Sheehan,  3  Misc.  269,  22  N.  Y.  Supp.  935,  holding  change 
of  depositor's  account  to  her  own  and  sister's  names  and  subsequent  possession  of 
bank  book  by  latter  show  intent  to  give,  and  delivery. 
Powers,    duties,    and    liabilities    of    foreign    or    ancillary    administrators. 

Cited  in  Re  Fitch,  160  N.  Y.  95,  54  N.  E.  701,  holding  foreign  executor  cannot 
maintain  action  at  law  or  in  equity  in  New  York. 

Cited  in  footnotes  to  Hopper  v.  Hopper,  12  L.  R.  A.  237,  which  holds  foreign 
executor  taking  out  ancillary  letters  liable  to  suit  as  domestic  executor;  McCully 
v.  Cooper,  35  L.  R,  A.  492,  which  sustains  right  of  ancillary  administratrix  to 


5  L.R.A.  541]  L.  R.  A.  CASES  AS  AUTHORITIES.  892 

recover  certificate  of  deposit  from  domiciliary  administratrix  temporarily  within 
state  where  former  appointed. 

Cited  in  notes   (9  L.  R.  A.  245)   on  power  and  authority  of  foreign  executors 
and  administrators;    (9  L.R.A.  218)   on  ancillary  administration  of  estates;    (45 
Am.  St.  Rep.  668)   on  power  and  duty  of  personal  representative  as  to  property 
outside  of  state. 
Validity    of   appointment    of   administrator. 

Cited  in  Franklin  v.  Franklin,  91  Tenn.  129,  18  S.  W.  61,  holding  appointment 
of  administrator  by  county  court  valid  until  revoked. 
Proof    of    foreign    la\v*. 

Cited  in  Wright  v.  Chapin,  74  Hun,  526,  26  N.  Y.  Supp.  825,  upholding  com- 
plaint alleging  right  of  action  under  Canadian  laws,  upon  Canadian  judgment; 
Showalter  v.  Rickert,  64  Kan.  84,  67  Pac.  454,  holding  statement  of  substance 
of  foreign  statute  in  pleadings  sufficient;  Congregational  Unitarian  Soc.  v.  Hale, 
27  N.  Y.  Civ.  Proc.  Rep.  306,  51  N.  Y.  Supp.  704;  Audley  v.  Townsend,  49  Misc. 
25,  96  N.  Y.  Supp.  439, — holding  foreign  statutes  cannot  be  proved  without 
being  pleaded;  Swing  v.  Wanamaker,  139  App.  Div.  631,  124  N.  Y.  Supp.  231, 
holding  that  allegation  that  policy  of  foreign  insurance  company  is  void  because 
company  failed  to  comply  with  certain  statutes  of  state  where  issued  sufficiently 
pleads  statute. 
Subsequent  disco-very  of  will  as  avoiding1  previous  administration. 

Cited  in  Perking  v.  Owen,  123  Wis.  243,  101  N.  W.  415,  holding  that  where 
there  had  been  an  administration  of  an  estate,  and  later  a  will  is  discovered, 
all  acts  in  the  due  administration  of  the  estate  will  be  revoked,  so  far  as  incon- 
sistent with  the  probating  of  the  will;  Shober  v.  Wheeler,  144  N.  C.  408,  57 
S.  E.  152,  holding  that  a  judgment  recovered  against  an  administrator  of  an 
estate,  is  not  avoided  by  the  subsequent  discovery  of  a  will. 

Cited   in  notes    (17   L.R.A.  (N.S.)    878)    on  payment  to  administrator  as   dis- 
charge  of   debt  when  will  subsequently  discovered   and  probated;    (81   Am.   St. 
Rep.  556,  557)    on  effect  of  subsequent  discovery  of  will   on  previous   adminis- 
tration. 
Sufficiency  of  allegations  of  jurisdiction. 

Cited  in  Benedict  v.  Clarke,  139  App.  Div.  243,  123  N.  Y.  Supp.  964,  holding 
that  allegation  that  foreign  judgment  was  "duly  rendered"  is  sufficient  to  show 
jurisdiction  as  against  general  demurrer. 

5  L.  R.  A.  544,  FEENEY  v.  LONG  ISLAND  R.  CO.  116  N.  Y.  375,  22  N.  E.  402. 
Duty  of  railroad  as  to  operation  of  safety  gates  at  crossing1. 

Cited  in  note   (33  L.R.A. (N.S.)   989)   on  duty  of  railroads  as  to  operation  of 
safety  gates  at  crossings. 
Contributory   negligence. 

Cited  in  O'Keefe  v.  St.  Louis  &  S.  F.  R.  Co.  108  Mo.  App.  183,  83  S.  W.  308, 
holding  that  where  the  plaintiff  was  injured  by  the  safety  gates  at  a  railroad 
crossing,  she  was  not  guilty  of  contributory  negligence  as  a  matter  of  law  whe re- 
she  looked  and  the  gates  were  motionless,  and  no  warning  bell  was  being  rung. 

Cited  in  footnotes  to  Van  Auken  v.  Chicago  &  W.  M.  R.  Co.  22  L.  R.  A.  33, 
which  holds  failure  to  look  and  listen  on  dark  night  will  not  prevent  recovery 
for  injury  by  engine  running  backward;  Betts  v.  Lehigh  Valley  R.  Co.  45  L. 
R.  A.  261,  which  sustains  right  of  person  approaching  crossing  where  train  is 
receiving  or  discharging  passengers  to  rely  on  rule  requiring  other  train  to  stop; 
Woehrle  v.  Minnesota  Transfer  R.  Co.  52  L.  R.  A.  349,  which  sustains  traveler's 
right  to  rely  on  watchman's  absence  from  crossing;  Western  &  A.  R.  Co.  v. 


393  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  544 

Fergusou,  54  L.  R.  A.  802,  which  holds  that  failure  to  look  when  within  30  feet 
of  track  does  not  prevent  recovery;  Keenan  v.  Union  Traction  Co.  58  L.  R.  A. 
217,  which  holds  failure  to  look  for  train  within  35  feet  of  track,  negligence: 
Colorado  &  Southern  R.  Co.  v.  Thomas,  70  L.R.A.  681,  which  holds  failure  to 
look  and  listen  before  crossing  track  not  excused  by  existence  of  building  ad- 
joining highway  which  would  obstruct  view  of  tracks  and  by  noise  created  therein 
which  would  prevent  hearing  approaching  train. 
Question  for  jury  as  to. 

Cited  in  Redmond  v.  Maitland,  23  App.  Div.  197,  49  N.  Y.  Supp.  128,  holding 
it  question  for  jury  whether  plaintiff  colliding  with  dray  while  driving  on  race 
track  was  negligent;  Conlan  v.  New  York  C.  &  H.  R.  R.  Co.  74  Hun,  119,  26  N. 
Y.  Supp.  659,  holding  question  of  contributory  negligence  properly  submitted  to 
jury;  Krulder  v.  Woolvertou,  11  Misc.  538,  32  N.  Y.  Supp.  742,  holding  that 
case  can  be  withdrawn  from  jury  as  to  contributory  negligence  only  when  no 
other  inference  possible;  Benedict  v.  Union  Agri.  Soc.  74  Vt.  98,  52  Atl.  110, 
holding  it  for  jury  to  decide  whether  cyclist  in  race,  trying  to  avoid  collision 
with  rider,  guilty  of  negligence  in  not  seeing  obstruction;  Getnian  v.  Delaware, 
L.  &  W.  R.  Co.  162  N.  Y.  26,  56  N.  E.  553  (dissenting  opinion),  majority  holding 
charge  permitting  finding  of  freedom  from  contributory  negligence  reversible 
error,  where  evidence  conclusively  shows  such  negligence. 

Cited  in  footnote  to  Lorenz  v.  Burlington,  C.  R.  &  N.  R.  Co.  56  L.  R.  A.  753, 
which  holds  negligence  of  one  pursuing  cow,  in  not  looking  and  listening  before 
crossing  railroad  track,  for  jury. 
Confidential    communications    to    physicians. 

Cited  in  Hennessy  v.  Kelley,  30  Misc.  705,  64  N.  Y.  Supp.  562,  holding  statu- 
tory provision  may  be  waived  by  offering  proof  of  facts  as  to  which  privilege 
existed;  McGillicuddy  v.  Farmers'  Loan  &  T.  Co.  26  Misc.  59,  55  N.  Y.  Supp.  242, 
holding  licensed  but  unregistered  attending  physician  cannot  testify  as  to  patient's 
ailment;  Fox  v.  Union  Turnp.  Co.  59  App.  Div.  369,  69  N.  Y.  Supp.  551,  holding 
general  statement  of  injuries  not  a  waiver  of  statutory  protection;  Griffiths  v. 
Metropolitan  Street  R.  Co.  171  N.  Y.  113,  63  N.  E.  808,  holding  burden  upon 
party  seeking  protection  of  statute  to  show  relation  of  physician  and  patient 
existed;  Dambmann  v.  Metropolitan  Street  R.  Co.  55  Misc.  66,  106  N.  Y.  Supp. 
221,  holding  that  the  relationship  of  physician  and  patient  being  proved,  it  will 
be  presumed  that  the  communications  were  made  for  purposes  of  treatment;  Re 
Myer,  184  N.  Y.  58,  76  N.  W.  920,  6  A.  A  E.  Ann.  Gas.  26,  35  N.  Y.  Civ.  Proc.  Rep. 
329,  holding  that  a  physician  was  prohibited  from  disclosing  the  fact  that  the 
mother  and  son  were  both  afflicted  with  paresis,  where  he  obtained  the  informa- 
tion while  attending  them  in  a  professional  capacity. 

Distinguished  in  Griffiths  v.  Metropolitan  Street  R.  Co.   33  N.  Y.  Civ.  Proc. 
113,  holding  where  the  witness  was  at  the  place  of  the  accident  and  rendered 
first  aid  to  the  injured,   and  accompanied  him  only  part  way  to  the  hospital, 
the  information  he  obtained  was  admissible. 
Expert   testimony. 

Cited  in  Tait  v.  Buffalo  R.  Co.  55  App.  Div.  513,  67  N.  Y.  Supp.  403,  holding 
value  of  expert  testimony  depends  upon  whether  hypothetical  questions  embrace 
all  material  facts. 
Request    for    instrnction     limiting     damages. 

Cited  in  Carter  v.  Xuncla.  55  App.  Div.  506,  66  N.  Y.  Supp.  1059,  holding  court 
might  decline  to  reverse  for  error  in  charge  as  to  damages  without  specific  re- 
quest to  limit;  Mabrey  v.  Cape  Girardeau  &  I.  Gravel  Road  Co.  92  Mo.  App.  610, 
and  Seitz  v.  Dry  Dock,  E.  B.  &  B.  R.  Co.  16  Daly.  268,  10  N.  Y.  Supp.  1,  holding 


5  L.R.A.  544]  L.  R.  A.  CASES  AS  AUTHORITIES.  894 

objections  to  right  to  recover  more  than  nominal  damages  not  available  without 
specific  request  to  limit. 
Damages   tor  personal   injuries. 

Cited  in  Wolf  v.  Third  Ave.  R.  Co.  67  App.  Div.  613,  74  N.  Y.  Supp.  336,  hold- 
ing recovery  for  cost  of  operation  necessary  to  relieve  from  injury  to  womb 
caused  by  injury,  proper;  Schuler  v.  Third  Ave.  R.  Co.  1  Misc.  354,  48  N.  Y.  S.  R. 
665,  20  N.  Y.  Supp.  683,  and  Koetter  v.  Manhattan  R.  Co.  36  N.  Y.  S.  R.  615, 
13  N.  Y.  Supp.  458,  holding  proper,  recovery  for  future  pain  and  suffering  rea- 
sonably to  be  expected;  Batten  v.  St.  Louis  Transit  Co.  102  Mo.  App.  294,  76  S. 
W.  727,  holding  future  pain  an  element  of  damage  for  injury  due  to  being  thrown 
from  car;  Turner  v.  Boston  &  M.  R.  Co.  158  Mass.  267,  33  N.  E.  520,  holding 
recovery  for  future  expenses  necessitated  by  injury  proper;  Xiendorff  v.  Man- 
hattan R.  Co.  4  App.  Div.  51,  38  N.  Y.  Supp.  690,  holding  that  proof  of  loss  of 
time  entitles  plaintiff  to  nonsinal  damages;  Moran  v.  Dover,  S.  &  R.  Street  R. 
Co.  74  N.  H.  501,  19  L.R.A.(N.S.)  922,  124  Am.  St.  Rep.  994,  69  Atl.  884, 
holding  that  the  jury  could  allow  for  medical  services  where  same  was  proved, 
but  without  evidence  of  their  value;  Gallamore  v.  Olympia,  34  Wash.  386,  75 
Pac.  978,  holding  that  future  pain  and  suffering  could  be  made  an  element  of 
damages,  where  proven,  though  not  asked  for  in  the  complaint;  Webster  v. 
Seattle,  R.  &  S.  R.  Co.  42  Wash.  365,  85  Pac.  2,  holding  that  where  the  plaintiff 
in  an  action  for  personal  injuries,  had  not  recovered  at  the  time  of  the  action, 
the  jury  could  allow  for  medical  attendance  in  the  future. 

Cited  in  notes  (8  L.  R.  A.  765)  on  damages  for  personal  injuries  and  mental 
anguish;  (10  L.R.A.  794)  on  damages  for  injury  to  person  by  negligence;  (19 
L.R.A.  (N.S.)  923)  on  allowance  for  physician's  services  in  action  for  injuries 
without  evidence  of  value  thereof;  (20  Am.  St.  Rep.  114)  on  elements  of  damages 
for  personal  injuries. 
Evidence  admissible  under  pleading:. 

Cited  in  Duggan  v.  Third  Ave,  R.  Co.  8  Misc.  90,  28  N.  Y.  Supp.  598,  holding 
testimony  as  to  plaintiff's  loss  of  power  over  fractured  leg  proper  without  allega- 
tions of  permanent  injury. 

5  L.  R.  A.  546,  SYRACUSE  WATER  CO.  v.  SYRACUSE,  116  N.  Y.  167,  22  N.  E. 

381. 
Public    franchises. 

Cited  in  Hudson  River  Teleg.  Co.  v.  Watervliet  Turnp.  &  R.  Co.  56  Hun,  71,  9 
N.  Y.  Supp.  177,  holding  legislative  grant  to  telephone  company  to  use  electricity 
does  not  exclude  its  use  by  railway  in  absence  of  words  of  exclusion;  New  York 
Mail  &  Newspaper  Transp.  Co.  v.  Shea,  30  App.  Div.  268,  51  N.  Y.  Supp.  563, 
holding  bridge  trustees  succeeding  to  rights  of  private  corporation  can  grant 
privileges  to  tube  company  subject  to  change  for  public  convenience;  Parkhurst 
v.  Capital  City  R.  Co.  23  Or.  475,  32  Pac.  304,  holding  general  power  to  permit 
street  railway  to  use  streets  not  sufficient  to  enable  city  to  grant  exclusive  privi- 
lege; Connecticut  River  Lumber  Co.  v.  Olcott  Falls  Co.  65  N.  H.  380,  13  L.  R.  A. 
832,  21  Atl.  1090,  holding  grant  to  manufacturing  company  of  riparian  rights 
does  not  include  discontinuance  of  public  way;  Adler  v.  Metropolitan  Elev.  R.  Co. 
28  Abb.  N.  C.  200,  18  N.  Y.  Supp.  858,  holding  street  not  included  in  route  desig- 
nated by  rapid  transit  commission  to  be  regarded  as  excluded ;  Palladino  v. 
Xew  York,  56  Hun,  573,  10  N.  Y.  Supp.  66,  holding  compensation  for  filling  in 
street  unprovided  for  by  contract,  though  in  contemplation  as  necessary,  not 
recoverable;  Southampton  v.  Jessup,  162  N.  Y.  127,  56  N.  E.  538,  holding  right 
granted  by  trustees  of  town  to  make  roadway  and  erect  bridge  a  franchise; 
Western  U.  Teleg.  Co.  v.  Electric  Light  &  P.  Co.  ITS  N.  Y.  331,  70  N.  E.  866, 


895  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  546 

holding  grant  of  right  to  one  corporation  to  construct  subway  no  bar  to  another's 
right  to  construct  one  near  former;  New  York  C.  &  H.  R.  R.  Co.  v.  New  York, 
142  App.  Div.  591,  127  N.  Y.  Supp.  513,  holding  that  grant  of  right  to  use 
street  by  railroad  company  will  be  strictly  construed  in  favor  of  public;  Schinzel 
v.  Best,  45  Misc.  464,  92  N.  Y.  Supp.  754,  reported  in  48  Misc.  233,  on  what 
constitutes  a  vested  franchise;  Adler  v.  Metropolitan  Elev.  R.  Co.  29  Jones  &  S. 
103,  18  N.  Y.  Supp.  858,  holding  grants  of  franchises  are  construed  most  favor- 
ably to  the  public,  and  nothing  included  unless  expressly  given;  Boise  City  v. 
Boise  Artesian  Hot  &  Cold  Water  Co.  108  C.  C.  A.  523,  186  Fed.  710.  holding 
that  legislative  grants  to  municipalities  are  to  be  strictly  construed. 

Cited  in  notes  (9  L.  R.  A.  34)  on  strict  construction  of  grant  of  corporate 
right  or  privilege;  (50  L.  R.  A.  146)  on  privilege  of  using  streets  as  a  contract 
within  constitutional  provision  against  impairing  obligation  of  contracts;  (22 
L.R.A.  (N.S.)  935)  on  power  of  municipality  in  absence  of  express  authority  to 
grant  street  franchises. 
—  To  water  company. 

Cited  in  Smith  v.  Westerly,  19  R.  I.  442,  35  Atl.  526,  holding  general  power 
to  permit  use  of  streets  to  lay  water  pipes  not  sufficient  to  sustain  grant  of 
exclusive  privilege  to  water  company;  Danville  v.  Danville  Water  Co.  178  111. 
308,  69  Am.  St.  Rep.  304,  53  N.  E.  118,  holding  city  may  reduce  water  rates  to 
be  paid  water  company  previously  fixed  by  ordinance;  Warsaw  Waterworks  Co. 
v.  Warsaw,  16  App.  Div.  505,  44  N.  Y.  Supp.  876;  Colby  University  v. 
Canandaigua,  69  Fed.  672;  Colby  University  v.  Canandaigua,  96  Fed.  451, — 
holding  village  can  construct  its  own  water  system  without  purchasing 
plant  of  existing  company;  Long  v.  Duluth,  49  Minn.  290,  32  Am.  St.  Rep. 
547,  51  N.  W.  913,  holding  city  may  establish  own  water  supply  notwith- 
standing exclusive  privilege  to  water  company;  Skaneateles  Waterworks  Co.  v. 
Skaneateles,  184  U.  S.  362,  46  L.  ed.  590,  22  Sup.  Ct.  Rep.  400,  Affirming  161 
N.  Y.  162,  46  L.  R.  A.  690,  55  N.  E.  562,  holding  village  may  maintain  own  water 
system,  notwithstanding  incorporation  of  company  to  supply  water;  Long  Island 
Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  696,  41  L.  ed.  1168,  17  Sup.  Ct.  Rep. 
718,  Affirming  143  N.  Y.  610,  26  L.  R.  A.  275,  38  N.  E.  983,  Which  Affirms  73 
Hun,  506,  26  N.  Y.  Supp.  198,  holding  act  enabling  city  to  acquire  by  condemna- 
tion plant  and  franchise  of  water  company,  including  contract  with  village  an- 
nexed to  city,  valid;  Cedar  Rapids  Water  Co.  v.  Cedar  Rapids,  118  Iowa,  257, 
91  N.  W.  1081,  sustaining  city's  right  to  terminate  water  company's  franchise  to 
injury  of  company's  property;  Helena  v.  Helena  Waterworks  Co.  58  C.  C.  A.  394, 
122  Fed.  14,  holding  grant  of  franchise  to  water  company  no  bar  to  city's  con- 
struction of  system;  Boise  City  Artesian  Hot  &  Cold  Water  Co.  v.  Boise  City, 
59  C.  C.  A.  239,  123  Fed.  235,  holding  ordinance  granting  right  to  lay  pipes  in 
street,  without  fixing  duration  of  privilege,  a  license  revocable  at  will;  Farmers' 
Loan  &  T.  Co.  v.  Sioux  Falls,  131  Fed.  901,  holding  city  was  not  estopped  from 
constructing  a  water  system  of  its  own,  by  fact  that  it  had  granted  the  right 
to  another;  Rogers  Park  Water  Co.  v.  Chicago,  131  111.  App.  49,  holding  that  a 
municipal  corporation  could  not  grant  an  exclusive  franchise  to  supply  water; 
Brummitt  v.  Ogden  Waterworks  Co.  33  Utah,  299,  93  Pac.  828,  holding  that 
unless  a  grant  is  made  exclusive  it  will  not  be  so  construed  except  by  unavoidable 
implication  arising  from  the  terms  of  the  grant. 

Cited  in  notes  (9  L.  R.  A.  196)  on  franchises  to  water  companies;   (61  L.  R.  A. 
81-83)    on  establishment  and  regulation  of  municipal  water  supply. 
tltra    vires    acts. 

Cited  in  Lovejoy  v.  Foxcroft,  91  Me.  371.  40  Atl.  141.  holding  town  ia  m>ver 
estopped  from  invoking  ultra  vires;  Re  Water  Corars.  176  X.  Y.  2."v2.  .N  X.  E 


5  L.R.A.  546]  L.  R.  A.  CASES  AS  AUTHORITIES.  896 

348,  Reversing  71  App.  Div.  553,  76  N.  Y.  Supp.  11,  holding  appraisal  under  con- 
tract of  village  to  purchase  waterworks,  void;  Southington  v.  Southington  Water 
Co.  80  Conn.  654,  69  Atl.  3023,  13  A.  &  E.  Ann.  Cas.  411,  holding  that  water 
companies  dealing  with  a  municipality  are  chargeable  with  notice  of  the  powers 
and  limitations  contained  in  the  charters;  Palladino  v.  New  York,  3  Silv.  Ct. 
App.  398,  holding  that  one  dealing  with  a  municipality  has  notice  of  the  statu- 
tory limitations  on  their  powers. 

Cited  in  notes  (7  L.R.A.  760)  on  power  of  municipalities  to  borrow  money; 
(22  Am.  St.  Rep.  768)  on  ultra  vires  contract  of  municipality. 

Distinguished  in  De  Witt  v.  Elmira  Transfer  R.  Co.  134  N.  Y.  500,  32  N.  E.  42, 
holding  city  acquired  all  title  of  state  in  abandoned  canal  land  converted,  under 
act  of  legislature,  into  a  street. 
Special    franchise    tax. 

Cited  in  People  ex  rel.  Metropolitan  Street  R.  Co.  v.  State  Tax  Comrs.  79  App. 
Div.  202,  80  N.  Y.  Supp.  85  (dissenting  opinion),  majority  declaring  void, 
special  franchise  tax  act  assessing  property  formerly  assessed  by  local  board. 

5  L.  R.  A.  554,  DALL  v.  NOBLE,  116  N.  Y.  230,  15  Am.  St.  Rep.  398,  22  N.  E. 

406. 
Arbitrary  refusal  to  accept   work   or  give  certificate. 

Cited  in  Richison  v.  Mead,  11  S.  D.  643,  80  N.  W.  131,  holding  arbitrary  refusal 
to  accept  well  cannot  defeat  recovery  for  price;  Electric  Lighting  Co.  v.  Elder 
Bros.  115  Ala.  152,  21  So.  983,  holding  dissatisfaction  with  completion  of  well 
must  be  reasonable;  Church  v.  Shanklin,  95  Cal.  629,  17  L.  R.  A.  213,  30  Pac.  789, 
holding  decision  of  attorney  as  to  real  estate  title,  final  under  agreement  that  it 
shall  be  perfected  "to  his  satisfaction;"  Wortman  v.  Kleinschmidt,  12  Mont. 
335,  30  Pac.  280,  holding  allegations  of  unreasonable  withholding  of  architect's 
certificate  sufficient;  Dorwin  v.  Westbrook,  86  Hun,  365,  33  N.  Y.  Supp.  449, 
holding  fraud  or  dishonesty  in  final  estimate  of  chief  engineer  will  deprive  it  of 
collusiveness ;  Hopper  v.  Cutting,  37  N.  Y.  S.  R.  505,  13  N.  Y.  Supp.  820,  holding 
jury  should  determine  whether  building  was  completed  to  satisfaction,  when 
omission  was  in  minor  particular;  Grinnell  v.  Kiralfy,  55  Hun,  424,  8  N.  Y. 
Supp.  623,  holding  actress  protected  from  arbitrary  dismissal  by  provision  for 
dismissal  if  employer  dissatisfied  in  good  faith;  Weeks  v.  O'Brien,  141  N.  Y.  202, 
36  N.  E.  185,  holding  complaint  should  contain  allegation  of  unreasonable  with- 
holding of  architect's  certificate;  Thomas  v.  New  York  &  G.  L.  R.  Co.  139  N.  Y. 
182,  34  N.  E.  877,  holding  wrongful  withholding  of  certificate  when  demanded,  no 
obstacle  to  recovery;  Vought  v.  Williams,  120  N.  Y.  256,  8  L.  R.  A.  592,  17  Am. 
St.  Rep.  634,  24  N.  E.  195,  holding  unreasonable  refusal  to  find  title  good 
cannot  defeat  right  to  enforce  land  contract;  Gearty  v.  New  York,  171  N.  Y. 
72,  63  N.  E.  804,  holding  park  commissioner  and  engineer  cannot  arbitrarily 
refuse  to  accept  paving;  Hummel  v.  Stern,  15  Misc.  28,  36  N.  Y.  Supp.  443,  hold- 
ing recovery  cannot  be  defeated  by  arbitrary  refusal  to  accept  work  to  be  per- 
formed to  satisfaction;  Hummel  v.  Stern,  21  App.  Div.  546,  48  N.  Y.  Supp.  528, 
liolding  guaranty  to  perform  work  to  satisfaction  will  not  defeat  recovery  if 
refusal  arbitrary;  New  York  &  N.  H.  Automatic  Sprinkler  Co.  v.  Andrews,  4 
Misc.  126,  23  N.  Y.  Supp.  998,  holding  arbitrary  withholding  of  certificate  of 
approval  for  equipping  factory  may  be  shown;  Pollock  v.  Pennsylvania  Iron 
Works  Co.  13  Misc.  197,  34  N.  Y.  Supp.  129,  holding  provision  that  interpretation 
by  engineer  shall  be  conclusive  as  to  plans  does  not  extend  to  specifications; 
Hospital  Supply  Co.  v.  O'Neill,  10  Misc.  659,  31  N.  Y.  Supp.  792,  holding  refusal, 
without  reason,  to  accept  plant  erected  in  accordance  with  contract,  no  answer 


397  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  555 

to  action;  Flanagan  v.  Fox,  3  Misc.  371,  23  N.  Y.  Supp.  344,  holding  breach 
of  contract  to  purchase  land  under  contract  that  vendor  shall  furnish  title  which 
specified  company  shall  approve,  not  justified  by  its  arbitrary  refusal  to  approve; 
Childs  Lumber  &  Mfg.  Co.  v.  Page,  28  Wash.  137,  68  Pac.  373,  holding  owner 
liable  after  failure  to  object  to  materials  used  by  contractor;  Thurman  v.  Omaha, 
64  Neb.  494,  90  N.  W.  253,  denying  one  bound  to  take  bonds  against  advice  of 
•counsel,  when  bid  subject  to  opinion;  Parlin  &  O.  Co.  v.  Greenville,  61  C.  C.  A. 
596,  127  Fed.  60,  sustaining  recovery  for  erection  of  garbage  furnace  where  com- 
mittee unreasonably  refuses  to  accept;  Ross  v.  New  York,  85  App.  Div.  612,  82 
N.  Y.  Supp.  920,  holding  contractor  entitled  to  recover  for  construction  of  sewer 
-where  work  completed;  Haehnel  v.  Trostler,  54  Misc.  264,  104  N.  Y.  Supp.  533, 
holding  if  doubtful  objections  are  honestly  urged,  the  plaintiff  must  complete 
to  satisfaction  of  defendant. 

Cited  in  footnote  to  Hildebrand  v.  American  Fine  Art  Co.  53  L.  R.  A.  826,  which 
sustains  right  to  recover  pro  rata  on  entire  contract  of  employment  terminated 
toy  employer  for  cause. 

Cited  in  notes  (9  L.  R.  A.  53)  on  "substantial  compliance"  with  building 
contract;  (17  L.  R.  A.  208)  on  promise  to  give  full  satisfaction,  subject  to  judg- 
ment of  promisee;  (12  L.R.A.(N.S.)  406)  on  termination  of  contracts  of  em- 
ployment which  permit  rescission  by  dissatisfied  employer. 

Distinguished  in  Crawford  v.  Mail  &  Exp.  Pub.  Co.  163  N.  Y.  408,  57  N.  E.  616, 
holding  that  one  employed  to  write  articles  for  newspaper  so  long  as  satisfactory 
to  publisher  may  be  discharged  without  reason  given;  Johnson  v.  Bindseil,  16 
Daly,  232,  10  N.  Y.  Supp.  321,  holding  where  plaintiff  agreed  to  teach  the  de- 
fendant in  a  certain  art,  payments  at  certain  times  if  the  lessons  were  satis- 
factory, and  he  failed  to  complete  the  course  because  of  sickness,  he  could  not 
recover;  Snyder  v.  Greenhut,  71  Misc.  119,  127  N.  Y.  Supp.  1068,  holding  that 
contract  employing  person  as  manager  of  department  store  and  requiring  that 
he  give  satisfactory  service  may  be  terminated  if  services  are  unsatisfactory. 

5  L.  R.  A.  555,  WOODRUFF  v.  BRADSTREET  CO.  116  N.  Y.  217,  22  N.  E.  354. 
•What  constitutes  libel. 

Cited  in  Zinserling  v.  Journal  Co.  26  Misc.  593,  57  N.  Y.  Supp.  905,  holding 
that  court  is  to  determine  whether  or  not  language  of  plain  import  is  action- 
able; Barnard  v.  Press  Pub.  Co.  43  N.  Y.  S.  R.  507,  17  N.  Y.  Supp.  573,  holding, 
where  words  are  capable  of  both  harmless  and  injurious  meaning,  there  is  ques- 
tion for  jury  and  innuendoes  proper;  Lapham  v.  Noble,  54  Fed.  109,  holding 
import  of  circular  to  intending  bidders,  that  any  interference  by  specified  broker 
;and  agent,  in  the  business,  will  not  be  to  bidder's  interest,  is  question  for  jury; 
Press  Pub.  Co.  v.  McDonald,  26  L.  R.  A.  532,  11  C.  C.  A.  558,  26  U.  S.  App.  167, 
63  Fed.  241,  holding  libelous  nature  of  publication  that  missing  employee  is 
living  in  luxury  in  Canada,  for  jury,  as  ambiguous;  Young  v.  Fox,  26  App.  Div. 
267,  49  N.  Y.  Supp.  634,  sustaining  charge  that  publication,  if  true,  clearly 
reflected  on  plaintiff's  chastity  and  marital  fidelity,  and  is  libelous  per  se; 
Shea  v.  Sun  Printing  &  Pub.  Asso.  14  Misc.  417,  35  N.  Y.  Supp.  703,  holding 
charge  that  married  woman  "living"  with  other  than  husband,  question  for 
jury;  Willmann  v.  Press  Pub.  Co.  49  App.  Div.  37,  63  N.  Y.  Supp.  515,  holding 
it  question  for  jury  whether,  in  libel,  scoundrel  is  implied  in  accusation  of  being 
a  "sucker;"  McKenzie  v.  Denver  Times  Pub.  Co.  3  Colo.  App.  557,  34  Pac.  577, 
holding  article  implying  that  attachment  has  issued  against  business  firm, 
libelous  per  se;  Spurlock  v.  Lombard  Invest.  Co.  59  Mo.  App.  232,  holding  adver- 
tisement of  trustee's  sale  to  pay  bond  secured  by  deed  of  trust  not  actionable 
per  se  by  maker;  N.  S.  Sherman  Mach.  Co.  v.  Dun,  28  Okla.  449,  114  Pac.  617, 
L.R.A.  Au.  Vol.  L— 57. 


5  L.R.A.  555]  L.  R.  A.  CASES  AS  AUTHORITIES.  898 

holding  that  false  publication  in  cipher  by  commercial  agency  as  to  person's 
credit  is  not  libelous  per  se;  Denney  v.  Northwestern  Credit  Asso.  55  Wash.  333, 
25  L.R.A.  (N.S.)  1023,  104  Pac.  769,  holding  a  publication  by  a  mercantile  agency 
that  any  inquiry  concerning  the  credit  of  a  person  should  be  made  at  the  office 
of  the  agency,  as  the  information  that  it  has  was  such  that  it  preferred  to 
furnish  it  upon  inquiry,  and  the  information  was  not  furnished  because  the 
agency  held  a  disputed  account  against  him,  was  not  libelous  per  se. 

Cited  in  footnote  to  Dun  v.  Weintraub,  50  L.  R.  A.  670,  as  to  what  constitutes 
libel  of  merchant. 

Cited  in  note  (8  L.  R.  A.  194)  as  to  what  constitutes  libel  or  slander. 

Necessity   of   nlH-ninu    special    damages. 

Cited  in  Dun  v.  Maier,  27  C.  C.  A.  103,  52  U.  S.  App.  381,  82  Fed.  172, 
holding,  where  words  published  not  libelous  per  se,  special  damages  must  be 
averred  to  warrant  recovery;  Dun  v.  Weintraub,  111  Ga.  418,  50  L.  R.  A.  672, 
36  S.  E.  808,  holding  statement  that  merchant  has  mortgaged  stock,  though  same 
unrecorded,  not  actionable  without  allegations  of  special  damages;  Beecher  v. 
Press  Pub.  Co.  60  App.  Div.  540,  69  N.  Y.  Supp.  895,  holding  no  question  for 
jury  where  publication  not  libelous  per  se,  and  no  special  damages  alleged  or 
proved. 

5  L.  R.  A.  557,  CADY  v.  BRADSHAW,  116  N.  Y.  188,  22  N.  E.  371. 
Waiver    of    protest. 

Cited  in  National  Hudson  River  Bank  v.  Reynolds,  57  Hun,  310,  10  N.  Y.  Supp. 
669,  holding  indorser's  waiver  of  notice  of  nonpayment  inferable  from  indorse- 
ment of  renewal  note;  Roch  v.  London,  24  Misc.  385,  53  N.  Y.  Supp.  261,  holding 
protest  waived  by  indorser's  saying,  upon  maker  destroying  note  for  which  he 
has  given  a  worthless  check  in  exchange,  that  note  will  be  paid  at  maturity; 
Werr  v.  Kohles,  64  App.  Div.  119,  71  N.  Y.  Supp.  713,  holding  waiver  of  protest 
not  shown  by  evidence  that  after  note's  maturity  indorser  paid  year's  interest, 
and  assured  payment  upon  being  urged  thereto,  there  being  no  evidence  of  failure 
to  protest  at  maturity;  First  Nat.  Bank  v.  Gridley,  112  App.  Div.  404,  98  N. 
Y.  Supp.  445,  on  the  waiver  of  protest  as  affected  by  the  Negotiable  Instrument 
Law. 

Cited  in  note  (33  L.R.A. (N.S.)  641)  on  bills  and  notes:  implied  waiver  of 
presentment  and  notice  by  indorser  before  maturity. 

Distinguished  in   Congress   Brewing  Co.  v.  Habernicht,  83  App.  Div.   143,   82 
N.  Y.  Supp.  481,  holding  payee's  statement  that  he  would  shut  maker  up  if  he 
didn't  pay,  not  relieve  holder  of  duty  to  present  and  give  notice. 
Credibility    of    witness. 

Cited  in  Lowey  v.  Fidelity  Printing  Co.  16  Misc.  551,  38  N.  Y.  Supp.  711, 
holding  that  credibility  of  interested  witness  is  for  jury;  San  Antonio  v. 
Porter,  24  Tex.  Civ.  App.  451,  59  S.  W.  922,  holding  it  proper  to  show  amount 
of  witness's  contingent  fee  on  cross-examination  of  plaintiff's  counsel  to  enable 
jury  to  determine  credibility. 

Cited  in  note  (82  Am.  St.  Rep.  56)  on  evidence  to  show  credibility  of  bias  of 
witness. 

5  L.  R.  A.  559,  PEOPLE  v.  BUDD,  117  N.  Y.  1,  15  Am.  St.  Rep.  460,  22  N.  E.  670. 

Followed  without  discussion  in  People  ex  rel.  Annan  v.  Walsh,  117  N.  Y.  621, 
22  X.  E.  682,  and  People  ex  rel.  Pinto  v.  Rhinehart,  117  N.  Y.  621,  22  N.  E.  682. 
Reversals;  where  verdict  justified. 

Cited  in  People  v.  Kerns,  7  App.  Div.  540,  40  N.  Y.  Supp.  243,  holding  Code 


899  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  559 

directing  judgment  without  regard  to  technical  defects  or  exceptions  not  affecting 
substantial  rights  forbids  reversal  of  conviction  unless  substantial  rights  of  de- 
fendant infringed. 
Force   of   Federal   decision. 

Cited  in  Re  Morgan,  26  Colo.  438,  47  L.  R.  A.  62,  77  Am.  St.  Rep.  269,  58  Pac. 
1071,  holding  United  States  Supreme  Court  decision  of  invalidity  not  binding  on 
courts  of  another  state  favoring  validity  of  eight-hour  law;   Ex  parte  v.  Boyce, ' 
27  Nev.  365,  65  L.R.A.  69,  75  Pac.  1,  1  A.  &  E.  Ann.  Cas.  66  (dissenting  opinion), 
on  the  force  of  Federal  decisions. 
i:\i-rciNt-   of  police  power;   regulation   of  bnsineaa  and   contracts. 

Affirmed  in  143  U.  S.  517,  36  L.  ed.  247,  4  Inters.  Com.  Rep.  45,  12  Sup.  Ct. 
Rep.  468,  sustaining  statute  regulating  fees  for  elevating  and  discharging  grain 
by  elevators. 

Cited  in  Brass  v.  North  Dakota,  153  U.  S.  400,  38  L.  ed.  760,  4  Inters.  Com. 
Rep.  673,  14  Sup.  Ct.  Rep.  857,  Affirming  2  N.  D.  498,  52  N.  W.  408,  upholding 
statute  defining  public  warehouses  and  prescribing  maximum  charge  for  elevat- 
ing and  storing  grain;  Re  Fuller,  62  App.  Div.  429,  71  N.  Y.  Supp.  40,  holding 
statute  allowing  percentage  of  inheritance  tax  as  fee  for  appraisal  not  without 
due  process;  Rochester  v.  West,  29  App.  Div.  128,  51  N.  Y.  Supp.  482,  upholding 
ordinance  prohibiting  unlicensed  bill  posting,  or  unauthorized  erection  of  bill 
boards  over  6  feet  high;  People  v.  Rosenberg,  67  Hun,  60,  22  N.  Y.  Supp.  56, 
upholding  prohibition  of  fat  rendering,  bone  boiling,  and  fertilizer  making,  within 
any  village  or  3  miles  therefrom;  White  v.  Farmers'  Highline  Canal  &  Reservoir 
Co.  22  Colo.  201,  31  L.  R.  A.  831,  43  Pac.  1028,  holding  irrigation  contract  giving: 
consumer  right  to  draw  water  from  canal  on  tender  of  value  subject  to  subsequent 
statute  prohibiting  such  acts  and  regulating  distribution,  but  giving  remedy  for 
contract  right;  Fayetteville  &  S.  R.  &  Turnp.  Co.  v.  Fayetteville,  37  Misc.  226, 
75  N.  Y.  Supp.  180.  holding  manner  of  turnpike  company's  occupancy  of  village 
highway  may  be  regulated  under  police  power;  Electric  Power  Co.  v.  New  York, 
29  Misc.  51,  60  N.  Y.  Supp.  590,  upholding  act  requiring  all  electric  wires  in 
large  cities  to  be  placed  in  conduits;  People  v.  Formosa,  61  Hun,  275,  16  N.  Y. 
Supp.  753,  upholding  law  prohibiting  insurance  companies  from  unjust  discrim- 
ination among  individuals  of  same  class,  and  of  same  expectation  of  life;  Beards- 
ley  v.  New  York.  L.  E.  &  W.  R.  Co.  15  App.  Div.  257,  44  N.  Y.  Supp.  175,  up- 
holding law  requiring  railroads  to  issue  mileage  books;  People  v.  Lochner,  73 
App.  Div.  122,  76  N.  Y.  Supp.  396,  upholding  statute  limiting  average  work  day 
of  bakers  and  confectioners  to  ten  hours;  Re  Morgan,  26  Colo.  448,  47  L.  R,  A. 
65,  77  Am.  St.  Rep.  269,  58  Pae.  1071,  holding  void,  act  prohibiting  working  more 
than  eight  hours  a  day  in  mines  and  smelters;  Forster  v.  Scott,  136  N.  Y.  584, 
18  L.  R.  A.  547,  32  X.  E.  976,  holding  denial  of  compensation  for  buildings 
erected  on  land  after  filing  map  of  proposed  street  across  it,  although  no  proceed- 
ings begun,  unconstitutional  taking;  People  ex  rel.  Zeese  v.  Maston,  79  Hun, 
583,  29  N.  Y.  Supp.  891,  upholding  law  authorizing  commitment  of  minor  to  re- 
formatory; Simpson  v.  New  York  Rubber  Co.  80  Hun,  418,  30  N.  Y.  Supp.  339, 
holding  statute  requiring  machinery  guards  cannot  be  waived  by  servant;  State 
ex  rel.  Payne  v.  Kinloch  Teleph.  Co.  93  Mo.  App.  358,  67  S.  W.  684,  holding  tele- 
phone company  amenable  to  courts  for  arbitrary  and  unconscionable  conduct 
toward  citizen:  Chicago  v.  Jackson,  196  111.  503,  63  N.  E.  1013,  denying  right 
of  city  in  exercise  of  police  power,  to  require  lowering  of  street  grade  and  eleva- 
tion of  railroad  track,  without  payment  to  abutting  owner  for  resulting  dam- 
ages; Lough  v.  Outerbridge,  143  N.  Y.  277,  25  L.  R.  A.  677,  42  Am.  St.  Rep. 
712,  38  N.  E.  292,  holding  shipper  may  be  charged  with  ordinary  reasonable  rate 
demanded  at  time  when  special  low  rates  are  offered  on  condition  of  agreement 


5  LJLA.  559]  L.  R.  A.  CASES  AS  AUTHORITIES.  900 

not  to  ship  by  rival  vessel,  to  which  he  will  not  agree;  Judy  v.  Thompson,  156 
Ind.  535,  60  N.  E.  270,  holding  imposition  of  forfeiture  to  mortgagor  of  specified 
sum  with  attorney's  fees  not  special  privilege  nor  taking  without  compensation; 
Topham  v.  Interurban  Street  R-  Co.  42  Misc.  510,  86  X.  Y.  Supp.  295,  sustain- 
ing power  of  legislature  to  prescribe  transfers  as  regulation  of  rate  of  fare: 
Xew  York  T.  Chelsea  Jute  Mills,  43  Misc.  269,  88  N.  Y.  Supp.  10S5.  sustaining 
statute  as  to  employment  of  child  labor;  Buffalo  v.  Buffalo  Gas  Co.  81  App. 
Div.  508,  80  N.  Y.  Supp.  1093,  sustaining  statute  prohibiting  charge  for  gas 
meter;  Whiteley  v.  Terry,  83  App.  Div.  200,  82  N.  Y.  Supp.  89,  sustaining  stat- 
ute making  it  crime  to  sell  real  estate  in  certain  cities,  without  owner's  written 
authority;  Viemeister  v.  White,  88  App.  Div.  49,  84  N.  Y.  Supp.  712.  sustaining 
statute  prohibiting  children  from  attending  public  school  unless  vaccinated; 
People  e*  r«L  Connecting  Terminal  R.  Co.  v.  Miller,  178  N.  Y.  207.  70  X.  E. 
472,  holding  earnings  of  corporation  from  property  in  transit,  in  conveying  it 
by  elevators  from  boats  to  tracks,  not  subject  to  tax;  State  ex  reJ.  Utiek  v.  Polk 
County,  87  Minn.  337,  60  L.  R.  A.  180,  92  N.  W.  216,  sustaining  statute  pro- 
Tiding  for  drainage  of  wet  lands  in  certain  eases;  Re  Tuthill.  36  App.  Div.  503, 
5$  N.  Y.  Supp.  657,  raising,  without  deciding,  question  whether  drainage  law 
within  police  power;  Cotting  v.  Kansas  City  Stock  Yards  Co.  183  I  - 
L.  ed.  99,  22  Sup.  Ct-  Rep.  30,  holding  void,  penal  statute  applicable  to  one  of 
several  public  stockyards,  and  defining  duties  of  their  operators,  and  regulating 
charges;  People  ex  rel.  Bnrby  v.  Howland,  155  N.  Y.  294,  41  L.  R.  A.  846,  49 
N.  E.  775  (dissenting  opinion),  majority  holding  act  relieving  justice  of  peace 
of  criminal  jurisdiction  and  denying  him  compensation  therefor  violation  of 
Constitution  providing  for  such  officers;  People  T.  Buffalo  Fish  Co.  164  X.  Y. 
Ill,  52  K  R.  A.  810,  79  Am.  St.  Rep.  622,  58  N.  E.  34  (dissenting  opinion), 
majority  holding  prohibition  against  having  certain  fish  in  possession  during 
close  season  void  as  to  Canadian  fish  imported  under  United  States  revenue  laws 
for  commerce;  Henley  T.  State,  98  Tenn.  724,  39  L.  R.  A.  142.  41  S.  W.  1104 
(dissenting  opinion),  majority  upholding  right  to  require  witness  to  attend 
court  and  give  evidence  without  state  providing  for  expense;  Delaware.  L.  & 
W.  R.  Co.  v.  Central  Stock-Yard  ft  T.  Co.  46  N.  J.  Eq.  281,  6  L.  R.  A.  863, 
19  AtL  185  (dissenting  opinion),  majority  holding  stockyards  not  compelled  to 
accept  business,  in  absence  of  statute;  Atty.  Gen.  v.  Old  Colony  R.  Co.  160 
Mass.  96,  22  L.  R.  A.  ^99  35  N.  E.  252  (dissenting  opinion),  majority  holding 
act  requiring  issuance  of  mileage  tickets  good  on  several  roads,  without  provid- 
ing fund  for  redemption,  creating  lien,  or  putting  any  limit  on  number  or  time 
for  use,  a  taking  without  reasonable  compensation;  People  v.  Hawkins.  157  X. 
Y.  22,  42  L.  R.  A.  499,  68  Am.  St.  Rep.  736,  51  N.  E.  257  (dissenting  opinion), 
majority  holding  regulation  of  price  of  labor  by  marking  of  convict-made  goods 
not  valid  exercise  of  police  power, —  at  least  as  to  foreign  goods;  Sun  Printing 

6  Pub.  Aaso.  v.  New  York,  8  App.  Div.  272,  40  N.  Y.  Snpp.  607    (dissenting 
opinion),  majority  holding  act  authorizing  city  to  issue  bonds  for  construction 
of  rapid  transit  tunnel,  and  to  lease  it  when  built,  valid;  State  v.  Loomis.  115 
Mo.  328,  21  L.  R.  A.  808,  22  S.  W.  350   (dissenting  opinion),  majority  holding 
law  prohibiting  giving  of  orders  in  payment  of  wages  unless  they  are  redeem- 
able without  discount,  in  cash  or  in  supplies  at  option  of  holder,  void:   Den- 
ninger  v.  Recorder's  Ct  145  Gal.  641,  79  Pac.  364,  on  the  power  of  the  citv  to 
regulate  charges  for  gas;  Brooklyn  Union  Gas  Co.  v.  New  York,  50  Misc.  455. 
100  N.  Y.  Snpp.  570,  holding  state  had  power  to  regulate  charges  for  illuminat- 
ing gas,  but  could  not  make  this  confiscatory;  McGnire  v.  Chicago,  B.  &  Q.  R. 
Co.  131  Iowa,  354,  33  LR-A.i(X.S.)    714,  108  X.  W.  902,  holding  the  railroad 
fellow  servant  law  a  constitutional  exercise  of  the  police  power;  Wright  v.  Hart, 


L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  559 

182  X.  Y.  350.  2  L.R.A.(X.S.)  348,  75  N.  E.  404,  3  A.  4  E.  Ann.  Cas.  263, 
reversing  103  App.  Div.  221,  93  N.  Y.  Supp.  60  (dissenting  opinion),  on  the  regu- 
lation of  public  businesses  as  a  taking  of  property  without  due  process  of  law; 
dissenting  opinions  in  Saratoga  Springs  v.  Saratoga  Gas,  Electric,  Light.  Heat 
&  P.  Co.  122  App.  Div.  222,  107  N.  Y.  Supp.  341;  People  v.  Hawkins,  13  N.  Y. 
Crim.  Rep.  311;  People  v.  Buffalo  Fish  Co.  15  N.  Y.  Grim.  Rep.  110,— on 
the  regulation  of  certain  businesses  by  the  state;  North  Carolina  Corp.  Com- 
mission v.  Atlantic  Coast  Line  R,  Co.  137  N.  C.  15,  115  Am.  St.  Rep.  636, 
49  S.  E.  191,  holding  that  it  is  within  the  police  power  of  the  state  to  re- 
quire railroads  to  make  reasonable  connections,  with  intersecting  lines;  Madi- 
son v.  Madison  Gas  A  Electric  Co.  129  Wis.  265,  8  LJl.A.(N.S.)  536,  116 
Am.  St.  Rep.  944,  108  N.  W.  65,  9  A.  &  E.  Ann.  Cas.  819,  holding  that  a 
grant  of  an  exclusive  franchise  carried  with  it  by  implication,  in  the  absence 
of  express  provision,  that  gas  is  to  be  furnished  at  a  reasonable  rate;  Mc- 
Guire  v.  Chicago,  B.  i  Q.  R.  Co.  131  Iowa,  354,  33  L.R.A.(N.S.)  714,  108  N. 
W.  902,  holding  that  statute  declaring  invalid  any  contract  limiting  liability 
of  railway  for  negligence  of  fellow  servant  is  not  unwarranted  interference 
with  right  of  private  contract;  New  York  Teleph.  Co.  v.  Siegel-Cooper  Co. 
137  App.  Div.  161,  121  N.  Y.  Supp.  1033,  to  the  point  that  duties  and  obliga- 
tions of  common  carriers  may  be  enforced  by  courts  and  legislature. 

Cited  in  footnotes  to  State  v.  Edwards,  25  L.  R.  A.  504,  which  holds  valid, 
limitation  of  amount  of  toll  for  grinding;  American  Live  Stock  Commission  Co. 
v.  Chicago  Live  Stock  Exchange,  18  L.  R.  A.  190,  which  denies  right  to  compel 
stock  exchange  carrying  on  business  in  incorporated  market  to  refrain  from 
discrimination;  Bagg  v.  Wilmington,  C.  &  A.  R.  Co.  14  L.  R.  A.  596,  which 
holds  act  compelling  shipment  of  freight  within  specified  time  not  interference 
with  commerce;  Stockton  v.  Powell,  15  L.  R.  A.  42,  which  holds  state  improve- 
ment of  navigable  water  entirely  within  state  not  interference  with  commerce; 
Rippe  v.  Becker,  22  L.  R.  A.  857,  which  denies  power  of  state  to  own  and 
operate  grain  elevator;  Lafarier  v.  Grand  Trunk  R.  Co.  17  L.  R.  A.  Ill,  which 
holds  state  statute  giving  ticket  holder  stopover  rights  not  applicable  outside  of 
state. 

Cited  in  notes  (10  L.  R.  A.  135)  as  to  where  police  power  is  lodged;  (13  L.  R. 
A.  107)  as  to  state  laws  affecting  interstate  commerce;  (13  L.  R.  A.  687)  as  to 
state  laws  imposing  taxes  or  penalties  upon  immigration;  (33  L.  R.  A.  178)  as 
to  legislative  power  to  fix  tolls,  rates,  or  prices;  (6  L.R.A.(N.S.)  836)  on 
businesses  affected  with  public  interest  subjecting  them  to  regulation  and  con- 
trol in  respect  to  rates  or  prices;  (36  L.R.A.  (X.S.)  220)  on  state  law  affecting 
telegraphs  as  regulation  of  interstate  commerce;  (20  Am.  St.  Rep.  558)  on 
due  process  of  law;  (25  Am.  St.  Rep.  883,  889)  on  14th  Amendment  as  to 
special  privileges,  burdens,  and  restrictions;  (53  Am.  St.  Rep.  572)  on  defini- 
tion of  police  power;  (62  Am.  St.  Rep.  290.  299)  on  regulation  of  rates. 

Distinguished  in  Bronk  v.  Barckley,  13  App.  Div.  80,  43  N.  Y.  Supp.  400,  hold- 
ing authorized  contract  to  furnish  convict  labor  for  stated  term  not  abrogated 
by  constitutional  provision;  Rochester  &  C.  Turn  p.  Road  Co.  v.  Joel,  41  App. 
Div.  50.  53  X.  Y.  Supp.  346,  holding  amendment  to  turnpike  law,  striking  out 
provision  for  collection  of  tolls  for  velocipedes  or  bicycles,  unconstitutional. 

Criticized  in  State  ex  rel.  Star  Pub.  Co.  v.  Associated  Press,  159  Mo.  448,  51  L. 
R.  A.  164.  81  Am.  St.  Rep.  368,  60  S.  W.  91,  holding  press  association  without 
exclusive  or  peculiar  facilities  or  public  franchise  cannot  be  compelled  to  furnish 
news  to  paper  in  town  where  others  are  supplied. 
Public    franchise. 

Cited  in  Grannan  v.  Westchester  Racing  Asso.  153  N.  Y.  461,  47  N.  E.  896, 


5  L.R.A.  559]  L.  R.  A.  CASES  AS  AUTHORITIES.  902 

Affirming  16  App.  Div.  13,  44  X.  Y.  Supp.  790,  holding  legislature  may  determine 
and  direct  conditions  of  exercise  of  rights  under  public  franchise;  New  York 
Bd.  of  Fire  Underwriters  v.  Whipple  &  Co.  2  App.  Div.  366,  37  N.  Y.  Supp.  712, 
holding  legislature  may  authorize  organization  of  fire  patrol  and  assessments 
upon  those  engaged  in  insurance  business  tn  support  it;  People  ex  rel.  Tyroler 
v.  Warden  of  City  Prison,  157  N.  Y.  145,  43  L.  R.  A.  275,  68  Am.  St.  Rep.  763, 
51  N.  E.  1006  (dissenting  opinion),  majority  holding  law  forbidding  all  but  car- 
riers' duly  appointed  agents,  from  being  ticket  brokers,  violation  of  constitutional 
liberty  not  justified  by  police  powers;  New  York  Cement  Co.  v.  Consolidated 
Hosendale  Cement  Co.  37  Misc.  753,  76  N.  Y.  Supp.  469,  holding  purchaser  of 
part  of  canal  constructed  under  franchise  limiting  tolls  bound  by  such  limita- 
tions. 
When  law  declared  unconstitutional. 

Cited  in  Beardsley  v.  New  York  L.  E.  &  W.  R.  Co.  17  Misc.  259,  40  N.  Y. 
Supp.  1077,  holding  reasonable  doubt  as  to  constitutionality  of  an  act  should  be 
resolved  in  favor  of  validity;  Waterloo  Woolen  Mfg.  Co.  v.  Shanahan,  128  N. 
Y.  357,  14  L.  R.  A.  484,  28  N.  E.  358,  holding  that  questions  as  to  validity  of 
statutes  are  always  important;  Gould  v.  Mahaney,  39  App.  Div.  431,  57  N.  Y. 
Supp.  363,  holding  constitutional  authorization  to  create  courts  of  justices  of 
the  peace  in  cities  does  not  contemplate  courts  with  diminished  jurisdiction; 
Metz  v.  Maddox,  121  App.  Div.  160,  105  N.  Y.  Supp.  702,  on  the  presumption 
of  constitutionality  of  law;  People  ex  rel.  Peabody  v.  Baker,  59  Misc.  363,  110 
N.  Y.  Supp.  848,  holding  a  law  requiring  commitment  to  insane  hospital  of 
person  acquitted  of  crime  by  jury,  on  the  ground  of  insanity,  was  constitu- 
tional; Reid  v.  Stevens,  70  Misc.  182,  2  N.  Y.  Civ.  Proc.  Rep.  N.  S.  146,  126 
N.  Y.  Supp.  379,  to  the  point  that  statutes  will  be  declared  unconstitutional 
only  in  the  clearest  cases;  Woods  v.  Cottrell,  55  W.  Va.  483,  65  L.R.A.  619, 
104  Am.  St.  Rep.  1004,  47  S.  E.  275,  2  A.  &  E.  Ann.  Cas.  933,  holding  a  statute 
which  provided  for  the  seizure  of  gaming  implements  is  not  unconstitutional 
as  taking  property  without  due  process  of  law. 

5  L.  R.  A.  572,  COHN  v.  NORTON,  57  Conn.  480,  18  Atl.  595. 
Damage    for    breach    of    contract. 

Cited  in  Lewis  v.  Hartford  Dredging  Co.  68  Conn.  236,  35  Atl.  1127,  holding, 
in  action  for  breach  of  contract  to  spread  shells  over  oyster  bed,  increase  of  value 
of  ground  which  would  have  followed  execution  of  contract  too  speculative  and 
remote  to  constitute  basis  for  estimate  of  damage;  Bernhard  v.  Curtis,  75  Conn. 
482,  54  Atl.  213,  holding  measure  of  damages  for  breach  of  contract  to  give  pos- 
session, difference  between  agreed  rent  and  value  of  term  plus  rent  paid  in 
advance;  South  Gardiner  Lumber  Co.  v.  Bradstreet,  97  Me.  174,  53  Atl.  1110, 
holding  difference  between  contract  price  and  price  when  logs  should  have  been 
delivered,  measure  of  damages  for  nondelivery;  Devers  v.  May,  124  Ky.  393, 
99  S.  W.  255;  Sloan  v.  Hart,  150  N.  C.  273,"  21  L.R.A.(N.S.')  241,  134  Am. 
St.  Rep.  911,  63  S.  E.  1037, — holding  that  the  measure  of  damages  for  breach 
of  contract  to  lease  is  the  difference  between  the  rent  agreed  upon  and  the 
market  value  of  the  term,  plus  any  additional  damages  that  can  be  proved; 
Oldfield  v.  Angeles  Brewing  &  Malting  Co.  62  Wash.  264,  35  L.R.A. (N.S.)  429, 
113  Pac.  630,  Ann.  Cas.  1912C,  1050;  Skinner  v.  Gibson,  86  Kan.  436,  121  Pac. 
513, — holding  that  measure  of  damages  for  breach  of  contract  of  lease,  where 
lessor  knew  of  intended  use  is  difference  between  rent  agreed  upon  and  market 
value  of  term,  plus  special  damages  proved. 

Cited  in  notes  (53  L.R.A.  35,  40)  on  loss  of  profits  as  element  of  damage; 
(21  Am.  St.  Rep.  121)  on  measure  of  damages  for  breach  of  contract. 


903  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  579 

Landlord's  duty  to  pat  tenant  In  possession. 

Cited  in  notes  (134  Am.  St.  Rep.  917)  on  landlord's  duty  to  put  tenant  in 
possession;  (15  Eng.  Rul.  Gas.  367)  on  effect  of  demise  of  premises  in  pos- 
session of  tenant. 

5  L.  R.  A.  575,  ANTHONY  v.  HOUSEHOLD  SEWING-MACHINE  CO.  16  R.  I. 

571,  18  Atl.  176. 
Hi  wilts    under    ultra    -vires    contract.  . 

Cited  in  Bath  Gaslight  Co.  v.  Claffy,  151  N.  Y.  45,  36  L.  R.  A.  671,  45  N.  E. 
390  (dissenting  opinion),  majority  holding  lessee  of  corporation  liable  under 
ultra  vires  lease;  Chicago  Sign  Printing  Co.  v.  Wolf,  135  111.  App.  371,  to  the 
point  that  money  loaned  to  corporation  to  be  repaid  in  preferred  stock  to  be 
issued  may  be  recovered  where  corporation  was  without  power  to  issue  such 
stock. 
Contracts;  consideration. 

Cited  in  Providence  Albertype  Co.  v.  Kent  &  S.  Co.  19  R.  I.  563,  35  Atl.  152, 
holding  promise  based  on  agreement  to  deliver  stock  of  future  corporation,  with- 
out consideration. 
Corporate     stock. 

Cited  in  Chicago  Sign  Printing  Co.  v.  Wolf,  135  111.  App.  371,  holding  that 
stockholders  were  powerless  to  make  any  agreement  involving  increase  of  capital 
stock,  except  to  call  meeting  to  do  so  in  way  provided  by  statute. 

Cited  in  note  (27  L.  R.  A.  137,  153)  on  preferred  guaranty  and  interest  bear- 
ing  stock. 

5  L.  R.  A.  577,  BORN  v.  HORSTMANN,  80  Cal.  454,  22  Pac.  338. 
Condition    In    will   for   separation    from    hnsband. 

Cited  in  Ellis  v.  Birkhead,  30  Tex.  Civ.  App.  532,  71  S.  W.  31,  sustaining  trust 
conditioned  upon  divorce;  Ransdall  v.  Boston,  172  111.  446,  43  L.R.A.  528,  50 
N.  E.  Ill,  holding  a  bequest  to  a  son,  in  trust  for  him,  until  such  time  as  he 
became  unmarried,  but  if  he  dies,  without  being  divorced  and  childless,  then 
over,  was  not  void  as  against  public  policy;  Coe  v.  Hill,  201  Mass.  22,  86 
N.  E.  949,  holding  provision  in  will  for  a  daughter  to  enjoy  a  certain  fund 
if  she  procured  a  divorce  from  her  husband,  was  invalid  if  made,  for  purpose 
of  inducing  her  to  procure  one  without  good  cause;  King's  Estate,  58  Pittsb. 
L.  J.  378,  holding  valid,  gift  in  trust  for  son,  providing  that  if  he  should  be 
separated  from  his  wife,  he  should  receive  gift  free  from  trust. 

Cited  in  notes  (84  Am.  St.  Rep.  150;  25  Eng.  Rul.  Cas.  638)  on  validity  of 
condition  in  restraint  of  marriage. 

Distinguished  in  Re  Haight.  51  App.  Div.  315,  64  N.  Y.  Supp.  1029,  holding 
a  provision  in  a  will  that  two  thousand  dollars  of  a  certain  income  should  be 
paid  his  son  for  life,  but  if  he  procured  a  divorce  from  her,  then  to  receive  the 
whole  income,  was  void. 

5  L.  R.  A.  579,  MORGAN  v.  BALL,  81  Cal.  93,  15  Am.  St.  Rep.  34,  22  Pac.  331. 
Chang-e    of    possession. 

Cited  in  Carter  v.  McQuade,  83  Cal.  278,  23  Pac.  348,  holding  wife's  claim  to 
property  released  by  husband,  superior  to  claim  of  latter's  creditors;  Murphy  v. 
Mulgrew,  102  Cal.  551,  41  Am.  St.  Rep.  200,  36  Pac.  857,  holding  sale  of  horses 
to  wife  void,  as  to  creditors,  where  there  is  no  change  of  possession. 

Cited  in  note  (90  Am.  St.  Rep.  546)  on  attacks  by  creditors  on  conveyances 
made  by  husbands  to  wives. 


5  L.R.A.  580]  L.  R.  A.  CASES  AS  AUTHORITIES.  904 

5  L.  R.  A.  580,  SCHMIDT  v.  BAUER,  80  Cal.  565,  22  Pac.  256. 

Duty  of  owner  or  occupant  of  premises  as  to   licensees  or  trespassers. 

Cited  in  Peters  v.  Bowman,  115  Cal.  348,  56  Am.  St.  Rep.  106,  47  Pac.  113, 
denying  liability  for  death  of  boy  drowned  while  trespassing  on  vacant  lot; 
Kennedy  v.  Chase,  119  Cal.  642,  63  Am.  St.  Rep.  153,  52  Pac.  33,  denying  liability 
for  injury  to  one  who  voluntarily  entered  ship  and  fell  into  unguarded  hole; 
Grundel  v.  Union  Iron  Works,  141  Cal.  567,  75  Pac.  184,  denying  liability  for 
death  of  one  who  "without  business"  entered  ship  and  fell  from  gangway;  Faris 
v.  Hoberg,  134  Ind.  276,  39  Am.  St.  Rep.  261,  33  N.  E.  1028,  holding  owner  owe* 
no  duty  to  guard  elevator  shaft  as  to  person  entering  storeroom  to  look  for 
drayman;  Thiele  v.  McManus,  3  Ind.  App.  134,  28  N.  E.  327,  holding  store- 
keeper, inviting  public  to  enter  building  for  purposes  of  trade,  not  under  obli- 
gation to  one  not  of  class  of  persons  invited,  to  guard  open  hatchway;  Clark 
v.  Michigan  C.  R.  Co.  113  Mich.  27,  67  Am.  St.  Rep.  442,  71  N.  W.  327,  holding 
railroad  company  liable  to  trespasser  or  licensee  falling  over  semaphore  while 
crossing  right  of  way;  Glaser  v.  Rothschild,  106  Mo.  App.  428,  80  S.  W.  332, 
holding  that  one  going  upon  premises  as  a  licensee  goes  at  his  own  risk;  Cliffe 
v.  Pacific  Mail  S.  S.  Co.  81  Fed.  810,  holding  that  owners  of  ships  owe  a  positive 
duty  to  stevedores  employed  on  their  ships  to  provide  reasonable  security 
against  danger  to  life  and  limb;  Burns  v.  Dunham,  C.  &  H.  Co.  148  Cal.  210, 
82  Pac.  959,  on  the  degree  of  care  which  a  store-keeper  owes  to  one  upon  his 
premises  for  the  purpose  of  doing  business;  Shaw  v.  Goldman,  116  Mo.  App. 
339,  92  S.  W.  165,  holding  that  the  proprietor  of  a  public  store  is  bound  to  use 
reasonable  care  to  keep  the  premises  in  a  reasonably  safe  condition,  or  to  warn 
customers  of  any  danger,  unknown  to  the  customer,  but  known  to  proprietor; 
Herzog  v.  Hemphill,  7  Cal.  App.  118,  93  Pac.  899,  holding  person,  with  permis- 
sion to  use  toilet  room  was  a  mere  licensee,  to  whom  the  owner  owed  no  duty; 
Emry  v.  Roanoke  Nav.  &  Water-Power  Co.  Ill  N.  C.  99,  17  L.R.A.  701,  16 
S.  E.  18,  holding  that  the  landowner  owes  no  duty  to  a  wilful  trespasser, 
except  not  to  wantonly  injure  him;  Means  v.  Southern  California  R.  Co.  144 
Cal.  479,  77  Pac.  1001,  1  A.  &  E.  Ann.  Caa.  206,  holding  same  as  to  one  in  a 
freight  depot;  Brown  v.  Shirley  Hill  Coal  Co.  47  Ind.  App.  359,  94  N.  E.  574, 
holding  that  servant  cannot  recover  for  injury  received  while  on  an  errand  for 
his  own  convenience;  Hutchinson  v.  Cleveland-Cliffs  Iron  Co.  141  Mich.  349, 
104  N.  W.  698,  holding  servant  guilty  of  contributory  negligence  so  as  to  pre- 
clude recovery,  where  he  left  his  place  of  work  and  went  to  part  of  mill  where 
he  had  no  business. 

Cited  in  footnotes  to  Sterger  v.  Van  Siclen,  16  L.  R.  A.  640,  which  holds 
property  owner  not  required  to  have  stairways  safe  as  to  person  on  premises  in 
search  of  child;  Benson  v.  Baltimore  Traction  Co.  20  L.  R.  A.  714,  which  denies 
recovery  to  student  falling  into  uncovered  vat  while  class  inspecting  power 
house  under  permission;  Ryerson  v.  Bathgate,  57  L.  R.  A.  308,  which  denies 
liability  of  owner  for  injury  to  one  using  premises  for  purpose  not  authorized 
by  invitation;  Boyce  v.  Union  P.  R.  Co.  18  L.  R.  A.  509,  which  requires  pro- 
prietor of  bathing  house  to  keep  bottom  free  from  substances  which  would  injure 
bather's  feet. 

Cited  in  notes  (9  L.  R.  A.  642)  on  owner  owes  no  duty  to  mere  licensee;  (11 
L.  R.  A.  361)  on  duty  of  owner  of  building  to  keep  it  in  safe  condition;  (7  L. 
R.  A.  621)  on  negligence  in  dangerous  condition  of  premises;  (9  L.  R.  A.  641) 
on  negligence  as  basis  of  liability;  (14  L.R.A.  (X.S.)  1120)  on  right  of  one 
coming  upon  property  on  business  with  owner,  but  temporarily  turning  aside 
for  own  purposes,  to  protection  against  defects;  (17  L.R.A. (N.S.)  917)  on 
duty  of  owner  of  premises  to  protect  licensee  against  hidden  dangers;  (14  Am. 


905  I"  K.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  586 

St.  Rep.  436)   on  duty  of  owner  or  occupant  as  to  safe  maintenance  of  private 

passage-way. 

Who   are   licensees. 

Cited  in  footnotes  to  Manning  v.  Chesapeake  &  O.  R.  Co.  16  L.  R.  A.  271, 
which  holds  one  making  friendly  call  on  telegraph  operator  a  mere  voluntary 
licensee;  Gibson  v.  Leonard,  17  L.  R.  A.  588,  which  holds  fire  insurance  patrol- 
man entering  burning  building  to  save  property  a  mere  licensee. 
Allegations    of    negligence. 

Cited  in  note  (59  L.  R,  A.  271)  on  sufficiency  of  allegations  of  negligence. 

6  L.  R.  A.  583,  DALE  v.  SEE,  51  N.  J.  L.  378,  14  Am.  St.  Rep.  688,  18  Atl.  306. 
Bailments;    contract   varying   legal    liability. 

Cited  in  Ames  v.  Melendy,  64  Vt.  555,  24  Atl.  1052,  holding  custom  sawyer 
absolutely  agreeing  to  keep  logs  safely,  liable  irrespective  of  negligence. 
Practice   on    reversal   by   court   of   appeals. 

Cited  in  State,  Newark,  Prosecutor  v.  Essex  Club,  53  N.  J.  L.  107,  20  Atl.  769, 
holding  proper  practice  on  reversal  of  erroneous  reversal  by  court  of  common 
pleas  is  to  affirm  judgment  of  trial  court. 
Appeal;   what   objections  available. 

Cited  in  Oliphant  v.  Brearley,  54  N.  J.  L.  523,  24  Atl.  660,  holding  ground  of 
objection  relied  on  for  reversal  must  be  presented  to  court  below. 

Cited  in  note  (8  L.  R.  A.  610)  on  necessity  of  stating  grounds  of  exception. 

—  Questions  revlewnble. 

Cited  in  Lavin  v.  Public  Service  R.  Co.  77  N.  J.  L.  218,  71  Atl.  58,  holding 
a  finding  of  fact  will  not  be  reviewed  by  appellate  court  where  there  is  evidence 
to  support  it. 

—  When  case  retriable. 

Cited  in  Feeney  v.  Rueger,  57  N.  J.  L.  357,  31  Atl.  217,  holding  that  prior  to 
1888  common  pleas  could  not  retry  case  appealed  from  district  court. 

5  L.  R.  A.  586,  ABBOTT  v.  HAPGOOD,  150  Mass.  248,  15  Am.  St.  Rep.  193,  22 

X.  E.  907. 
Contracts    by    promoters. 

Cited  in  Holyoke  Envelope  Co.  v.  United  States  Envelope  Co.  182  Mass.  174, 
65  X.  E.  54,  and  Winters  v.  Hub  Min.  Co.  57  Fed.  288,  holding  contract  made 
for  future  corporation  not  binding;  Ireland  v.  Globe  Milling  &  Reduction  Co. 
20  R.  I.  196,  38  L.  R.  A.  302,  38  Atl.  116,  holding  corporation  cannot  enforce 
contract  by  proposed  stockholders  before  organization,  giving  it  option  to  pur- 
chase stock;  Tuttle  v.  Tuttle,  101  Me.  292,  64  Atl.  496,  8  A.  &  E.  Ann.  Cas. 
260,  holding  corporation  not  liable  for  services  rendered  in  its  behalf  under  a 
contract  with  its  promoters,  in  the  absence  of  ratification  or  provision  in  the 
charter;  Bradford  v.  Metcalf,  185  Mass.  207,  70  N.  E.  40,  holding  after-organized 
corporation  was  not  bound  by  contracts  with  promoters  in  its  behalf,  nor  could 
it  ratify;  Dunning  v.  Bates,  186  Mass.  125,  71  N.  E.  309,  holding  a  corporation 
to  be  formed  for  the  benefit  of  bondholders  of  an  old  one,  was  not  a  party 
to  the  trust  for  the  benefit  of  the  bondholders;  Pennell  v.  Lothrop,  191  Mass. 
360,  77  N.  E.  842,  holding  that  a  corporation  was  not  a  proper  party  to  a  suit 
to  restrain  the  infringement  of  a  copyright,  under  a  contract  made  in  its  behalf 
by  one  of  the  promoters;  Koppel  v.  Massachusetts  Brick  Co.  192  Mass.  225,  78 
N.  E.  128,  holding  that  a  corporation  was  not  liable  for  goods  ordered  by 
another  for  its  use  three  months  before  it  was  organized,  though  the  goods 
were  transferred  to  it  afterward,  where  it  did  not  ratify  the  agreement;  John 


5  L.R.A.  586]  L.  R.  A.  CASES  AS  AUTHORITIES.  906 

L.  Whiting  &  Sons  Co.  v.  Barton,  204  Mass.   172,  90  X.  E.  528,  on  the  rights 
of  parties  under  contracts  by  promoters  in  behalf  of  proposed  corporations. 

Cited  in  notes  (13  Am.  St.  Rep.  29;  17  Am.  St.  Rep.  161,  162,  163;  22  Eng. 
Rul.  Cas.  40;  (26  L.R.A.  551)  on  liability  of  corporations  on  contract  of 
promoters. 

Distinguished  in  Bonham  Cotton  Press  Co.  v.  MeKellar,  86  Tex.  700,  26  S.  W. 
1056,  holding  contract  of  promoters  adopted  after  incorporation  and  acquiesced 
in  by  other  party,  valid;  McArtlmr  v.  Times  Printing  Co.  48  Minn.  321,  31  Am. 
St.  Rep.  653,  51  N.  W.  216,  holding  corporation  may  adopt  contract  made  on  its 
behalf  before  organization;  North  Anson  Lumber  Co.  v.  Smith,  209  Mass.  337, 
95  N.  E.  838,  holding  that  corporation  could  not  recover  on  notes  made  by 
defendant's  intestate  and  indorsed  to  it  but  which  by  its  conduct  it  agreed  to 
hold  such  maker  harmless. 
Limited  partnerships. 

Cited  in  footnote  to  Edwards  v.  Warren  Linoline  &  Gasoline  Works,  38  L.  R. 
A.  791,  which  holds  partnership  association  organized  under  laws   of  Pennsyl- 
vania regarded  as  partnership  instead  of  corporation  in  Massachusetts. 
Dainagres  for  breach  of  contract. 

Cited  in  Hockersmith  v.  Hanley,  29  Or.  39,  44  Pac.  497,  holding  measure  of 
damages  for  breach  of  contract  to  sell  cattle  to  be  shipped  to  market  is  differ- 
ence between  market  price  and  contract  price  plus  transportation;  New  York 
Bank  Note  Co.  v.  Kidder  Press  Mfg.  Co.  192  Mass.  406,  78  N.  E.  463,  holding 
that  the  measure  of  damages  for  breach  of  restrictive  agreement  not  to  aell 
specially  adapted  machines  to  others,  was  the  difference  between  the  machines 
protected  by  the  agreement  and  the  market  value  as  affected  by  the  breach ; 
Leavitt  v.  Fiberloid  Co.  196  Mass.  446,  15  L.R.A.  (N.S.)  865,  82  N.  E.  682, 
holding  that  upon  a  breach  of  warranty  the  party  may  recover  whatever  dam- 
ages follow  as  a  natural  consequence  and  a  proximate  result  of  such  breach  or 
may  have  been  within  the  contemplation  of  the  parties  at  the  time  the  contract 
was  made;  C.  W.  Hunt  Co.  v.  Boston  Elev.  R.  Co.  199  Mass.  235,  85  N.  E.  446, 
holding  the  plaintiff  could  recover  for  loss  caused  by  breach  of  contract  to 
furnish  steel  towers,  which  would  have  enabled  them  to  operate  more  eco- 
nomically; Hanson  v.  Wittenberg,  205  Mass.  327,  91  N.  E.  383,  holding  that 
amount  of  damages  for  breach  of  contract  should  be  such  as  parties  at  time 
of  making  contract  are  supposed  to  have  contemplated  would  follow  from  breach. 

Cited  in  notes  (57  L.R.A.  195)  on  damages  for  breach  of  contract  on  sale  of 
article  that  has  no  market  price;  (36  L.  ed.  U.  S.  801;  6  Eng.  Rul.  Cas.  625) 
on  damages  recoverable  for  breach  of  contract. 

Distinguished  in  Laporte  Improv.  Co.  v.  Brock,  99  Iowa,  489,  61  Am.  St.  Rep. 
245,  68  N.  W.  810,  holding  loss  of  rent  not  recoverable  in  action  for  failure  to 
furnish  brick  which  might  have  been  purchased  elsewhere. 

5  L.  R.  A.  587,  HULL  v.  CHICAGO,  ST.  P.  M.  &  O.  R.  CO.  41  Minn.  510,  16  Am. 

St.  Rep.  722,  43  N.  W.  391. 
Liability    for    loss    of    freight. 

Cited  in  notes  (6  L.  R.  A.  849)  on  liability  of  carrier  for  loss  of  goods;   (11  L. 
R.  A.  616)   on  defenses  in  action  for  loss  by  carrier. 
Burden   of  proof  as  to   nejiHgence  of  carrier. 

Cited  in  Shea  v.  Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  63  Minn.  229,  65  N. 
W.  458,  holding  carrier  must  not  only  show  loss  within  excepted  liability,  but 
also  absence  of  negligence;  Southard  v.  Minneapolis  St.  P.  &  S.  Ste.  M.  R.  Co. 
60  Minn.  392,  62  N.  W.  619,  holding  burden  on  carrier  to  show  destruction  of 


907  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  589 

merchandise  by  fire,  while  in  transit,  not  through  negligence;  Boehl  v.  Chicago, 
M.  &  St.  P.  R.  Co.  4  4Minn.  191,  46  N.  W.  333,  holding  burden  on  carrier  to  show 
injury  to  stallion  in  transit  resulted  from  inherent  nature  or  propensity  of 
animal;  Terre  Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind.  135,  17  L.R.A.  343, 
32  Am.  St.  Rep.  239,  31  N.  E.  781,  holding  contract  limiting  liability  does  Tiot 
relieve  carrier  from  burden  of  showing  exemption  from  duties  imposed  by  law; 
Louisville  &  N.  R.  Co.  v.  Touart,  97  Ala.  518,  11  So.  756,  holding,  notwithstand- 
ing contract  exempting  carrier  from  liability,  proof  of  breakage  makes  prima 
facie  case,  and  imposes  burden  on  carrier  to  show  exercise  of  due  care;  Hudson 
River  Lighterage  Co.  v.  Wheeler  Condenser  &  E.  Co.  93  Fed.  377,  holding  burden 
on  carrier  to  overcome  presumption  of  negligence  arising  from  proof  that  casting 
shipped  in  good  order  was  found  cracked  on  delivery;  Owens  Bros.  v.  Chicago, 
R.  I.  &  P.  R.  Co.  139  Iowa,  544,  117  N.  W.  762,  holding  that  burden  is  on 
carrier  to  show  contract  varying  his  liability  and  that  loss  came  within  con- 
tract; Duncan  v.  Great  Northern  R.  Co.  17  N.  D.  617,  19  L.R.A.(N.S.)  959, 
118  N.  W.  826;  Fockens  v.  United  States  Exp.  Co.  99  Minn.  407,  109  N.  W. 
834, — holding  that  where  goods  are  shown  to  have  been  delivered  to  carrier  in 
good  condition  and  received  from  him  damaged  burden  is  on  carrier  to  disprove, 
negligence;  Inman  &  Co.  v.  Seaboard-  Air  Line  R.  Co.  159  Fed.  970,  on  same 
point. 

Cited  in  footnote  to  Hears  v.  New  York,  N.  H.  &  H.  R.  Co.  56  L.  R.  A.  884, 
which  holds  that  carrier  has  burden  of  proving  that  delivery  of  goods,  in  wet 
condition  not  due  to  its  negligence. 

Cited   in   note    (20   Am.  St.  Rep.   643)    on  burden  of  proving  negligence  of 
carrier. 
Contracts  limiting,-  liability  of  carrier. 

Cited  in  Abrams  v.  Milwaukee,  L.  S.  &  W.  R.  Co.  87  Wis.  492,  41  Am.  St. 
Rep.  55,  58  N.  W.  780,  holding  carrier  cannot  by  contract  exempt  itself  from 
liability  for  injuries  to  live  stock  caused  by  its  negligence. 

Cited  in  footnote  to  Chicago  &  N.  W.  R.  Co.  v.  Chapman,  8  L.  R.  A.  508,  which 
holds  carrier  cannot  limit  liability  for  gross  negligence  or  wilful  misconduct. 

Cited  in  note    (88  Am.  St.  Rep.  95,  125)    on  limitation  of  carrier's  liability 
in  bills  of  lading. 
Necessity  of  pleading  and  proving:  limitation  on  liability. 

Cited  in  Doss  v.  Moore,  69  Ark.  258,  63  S.  W.  66,  holding  defense  of  want  of 
notice  from  shipper  of  loss  or  damage,  as  provided  in  contract,  waived  if  not 
pleaded. 

5  L.  R.  A.  589,  MAGOVERN  v.  ROBERTSON,  116  N.  Y.  61,  22  N.  E.  398. 

Followed  without  discussion  in  Magovern  v.  Robertson,  127  N.  Y.  691,  29  N.  E. 
150. 
Who   are   liable   as   partners. 

Cited  in  Hull  v.  Earth,  48  App.  Div.  593,  62  N.  Y.  Supp.  946,  and  First  Nat. 
Bank  v.  Staples,  34  N.  Y.  S.  R.  506,  11  N.  Y.  Supp.  809..  holding  persons  having 
proprietary  interest  in  business  and  in  profits  liable  to  creditors  as  partners; 
Zabriskie  v.  Coates,  41  App.  Div.  319,  58  N.  Y.  Supp.  523,  holding,  where  enter- 
prise is  joint,  and  parties  are  to  share  profits  and  losses,  they  are  liable  to  third 
persons  as  partners,  whether  there  is  agreement  of  partnership  or  not;  Donald  v. 
Guy,  127  Fed.  232,  holding  members  of  pilot  association  jointly  liable  for  collision 
caused  by  negligence  of  member. 

Cited  in  footnotes  to  Dutcher  v.  Buck,  20  L.  R.  A.  776,  which  holds  partnership 
created  between  land  owner  and  one  cutting  timber  under  contract  for  equal 


5  L.R.A.  589]  L.  R.  A.  CASES  AS  AUTHORITIES.  908 

division  of  profits ;  Shrum  v.  Simpson,  49  L.  R.  A.  792,  which  holds  no  partnership 
created  by  contract  for  working  farm  and  dividing  proceeds;  Brandon  v.  Connor, 
63  L.R.A.  260,  which  holds  partnership  as  to  third  persons  constituted  by  agree- 
ment with  contractors  for  construction  of  railroad  to  furnish  services  and  part 
of  necessary  animals  for  use. 

Cited  in  notes  (115  Am.  St.  Rep.  415,  431)  on  what  constitutes  a  partnership; 
(18  L.R.A.  (N.S.)  1049,  1052,  1073)  on  effect  of  agreement  to  share  profits  to 
create  partnership. 

Distinguished  in  Re  Schenkein,  113  Fed.  424,  holding,  where  profits  are  made 
measure  of  compensation  to  one  having  no  other  interest  in  business,  partnership 
does  not  exist. 

5  L.  R.  A.  591,  O'NEILL  v.  NEW  YORK,  O.  &  W.  R.  CO.  115  N.  Y.  579,  22  N.  E. 

217. 
Liability    of    railroad    for    fires. 

Cited  in  Connelly  v.  Erie  R.  Co.  68  App.  Div.  546,  74  N.  Y.  Supp.  277,  holding 
abutting  owner  cannot  recover  for  fire  started  in  railroad  ties  left  on  railroad 
land  for  his  accommodation;  Hoffman  v.  King,  160  N.  Y.  626,  46  L.  R.  A.  675, 
73  Am.  St.  Rep.  715,  55  N.  E.  401,  holding  fire  communicated  through  inter- 
vening buildings,  remote  cause  of  loss;  Brush  v.  Long  Island  R.  Co.  10  App. 
Div.  540,  42  N.  Y.  Supp.  103,  holding  railway  is  bound  to  see  that  fire  started  by 
its  engine  in  accumulation  on  its  land  does  not  spread;  Sherman  v.  Slayback,  34 
N.  Y.  S.  R.  383,  holding  railway  liable  for  fire  started  in  accumulated  rubbish 
on  its  land  and  spreading  therefrom;  Eighme  v.  Rome,  W.  &  O.  R.  Co.  32  N.  Y. 
S.  R.  759,  10  N.  Y.  Supp.  600,  holding  railway  bound  to  use  all  reasonable  care 
to  prevent  spread  of  fire  originating  in  combustible  matter  on  its  land;  Collins 
v.  New  York  C.  &  H.  R.  R.  Co.  33  N.  Y.  S.  R.  571,  11  N.  Y.  Supp.  308,  holding 
fact  that  smokestack  on  engine  was  as  good  as  any  in  use  does  not  relieve  rail- 
way of  responsibility  for  fire  by  sparks;  Babcock  v.  Fitchburg  R.  Co.  140  X.  Y. 
319,  35  N.  E.  596,  holding  railway  should  adopt  such  approved  spark  arresters 
on  its  engine  as  have  been  adopted  in  the  business;  Stephenson  v.  Pennsylvania 
R.  Co.  20  Pa.  Super.  Ct.  167,  holding  railroad  liable  for  damage  from  sparks 
from  locomotive  falling  into  accumulations  of  rubbish,  spreading  thence  to  wood- 
land; Carter  v.  Pennsylvania  R.  Co.  57  C.  C.  A.  127,  120  Fed.  665,  holding  rail- 
road prima  facie  liable  for  loss  of  stock  burned  in  car  set  afire  by  sparks  from 
engine. 

Cited  in  footnote  to  Norfolk  &  W.  R.  Co.  v.  Fritts,  68  L.RA.  864,  which 
sustains  liability  for  fire  of  railroad  company  unnecessarily  running  heavy 
freight  train  up  grade  at  double  its  scheduled  speed  in  dry  season  and  during 
heavy  wind. 

Cited  in  notes   (9  L.  R.  A.  750)  on  duty  and  obligations  of  railroad  company 
to  guard  against  setting  out  fires;    (21  L.  R.  A.  260)   on  liability  for  setting  fires 
which  spread  to  property  of  others. 
—  Questions    for    jury    aa    to. 

Cited  in  Frace  v.  New  York,  L.  E.  &  W.  R.  Co.  143  N.  Y.  189,  38  N.  E.  102, 
holding  burning  of  hotel  as  natural  and  direct  result  of  sparks  from  engine 
should  be  left  to  jury;  Douglass  v.  Rome,  W.  &  0.  R.  Co.  1  Silv.  Sup.  Ct.  211, 
23  N.  Y.  S.  R.  457,  5  N.  Y.  Supp.  214,  holding  evidence  of  negligence  by  railway 
in  allowing  material  to  accumulate  on  its  land  from  which  fire  spread  sufficient 
to  go  to  jury;  Flinn  v.  New  York  C.  &  H.  R.  R.  Co.  67  Hun,  634,  22  N.  Y.  Supp. 
473,  holding  scattering  of  sparks  or  coals  by  engine  in  quantities  to  endanger 
property  some  evidence  of  negligence;  O'Reilly  v.  Erie  R.  Co.  72  App.  Div. 
230,  76  N.  Y.  Supp.  171,  holding  evidence  that  fires  were  discovered  soon  after 


909  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  594 

engines  passed  probably  sufficient  to  sustain  finding  that  fires  were  set  by  engines ; 
Brown  v.  Buffalo,  R.  &  P.  R.  Co.  4  App.  Div.  469,  38  N.  Y.  Supp.  655,  holding 
evidence  sufficient  for  jury  as  to  railway's  negligence  in  permitting  grass  and 
weeds  to  grow  without  cutting,  from  which  fire  spread;  Continental  Ins.  Co. 
v.  Chicago  &  N.  W.  R.  Co.  97  Minn.  473,  5  L.R.A.  (N.S.)  107,  107  X.  W.  548, 
holding  that  where  the  defendant's  negligence  was  attempted  to  be  proved 
partly  by  circumstantial  evidence,  it  is  for  the  jury  to  determine  the  question. 
Proximate  cause  of  injury. 

Cited  in  Martin  v.  New  York,  O.  &  W.  R.  Co.  62  Hun,  184,  16  N.  Y.  Supp.  499, 
holding  sparks  and  cinders  from  engine  firing  brush  on  railway  lands  proximate 
cause  of  destruction  of  wood-lot  over  a  mile  distant;  Nary  v.  New  York,  O.  & 
W.  R.  Co.  29  N.  Y.  S.  R.  633,  9  N.  Y.  Supp.  153,  holding  abandoned  switch 
engine  proximate  cause  of  collision  causing  death  of  intestate;  Florida  East 
Coast  R.  Co.  v.  Welch,  53  Fla.  159,  44  So.  250,  12  A.  &  E.  Ann.  Cas.  210, 
holding  that  the  change  of  the  wind  during  the  progress  of  the  fire  set  by  the 
defendant's  engine  did  not  affect  the  latter's  liability;  Babbitt  v.  Erie  R.  Co. 
108  App.  Div.  76,  95  N.  Y.  Supp.  429,  on  the  sufficiency  of  evidence  to  show 
fires  were  started  by  defendant's  locomotive. 

Cited  in  note  (8  L.  R.  A.  85)   on  effect  produced  by  intervening  cause  on  lia- 
bility for  injuries  by  negligence. 
Negligence  in  allowing  combustible  materials  to  gather  on  right  of  way. 

Cited  in  Nichols  v.  Lehigh  Valley  R.  Co.  61  Misc.  197,  114  N.  Y.  Supp.  942, 
holding  proof  that  company  cut  grass  and  allowed  it  to  remain  on  its  right 
of  way  and  the  fire  began  thereon  shortly  after  a  train  passed,  was  sufficient 
to  hold  defendant  liable;  Smith  v.  Central  Vermont  R,  Co.  80  Vt.  218,  67  Atl. 
535,  holding  that  where  plaintiff  charged  negligence  in  allowing  combustible 
material  to  accumulate  along  the  right  of  way,  and  its  ignition  and  spreading,, 
it  was  not  necessary  to  prove  any  defect  in  the  construction  of  the  engine. 
Questions  first  raised  on  appeal. 

Cited  in  Drexel  v.  True,  20  C.  C.  A.  266,  36  U.  S.  App.  211,  74  Fed.  14,  holding 
question  not  relating  to  jurisdiction  cannot  be  raised  for  first  time  on  appeal; 
United  Press  v.  New  York  Press  Co.  35  App.  Div.  447,  54  N.  Y.  Supp.  807,  holding 
new  theory  of  case  cannot  be  raised  for  first  time  on  appeal;  Asher  v.  Deyoe, 
77  Hun,  534,  28  N.  Y.  Supp.  890,  holding  objection  to  form  of  action  not  avail- 
able for  first  time  on  appeal. 

5  L.  R.  A.  594,  McGORRISK  v.  DWYER,  78  Iowa,  279,  16  Am.  St.  Rep.  440,  4? 

N.  W.  215. 
What  is  a  fixture. 

Cited  in  Thomson  v.  Smith,  111  Iowa,  721,  50  L.  R.  A.  782,  82  Am.  St.  Rep. 
541,  83  N.  W.  789,  holding  wagon  scales  intended  to  be  part  of  realty,  although 
not  actually  attached  to  foundation  built  for  them;  Brownell  v.  Fuller,  60  Neb. 
562,  83  N.  W.  6G9,  holding  location  of  machinery  in  addition  in  alley  makes  no 
difference  as  to  its  being  trade  fixture  when  it  formed  part  of  leased  premises. 

Cited  in  footnotes  to  Goddings  v.  Freedley,  65  L.R.A.  327,  which  holds  main 
belt  transmitting  power  from  an  engine  so  annexed  to  building  as  to  be  real 
estate,  to  machinery  in  mill,  real  estate;  Murray  v.  Bender,  63  L.R.A.  783, 
which  holds  chairs,  stage  fixtures,  and  drop  curtains  annexed  to  theater  to  make 
possible  the  use  of  the  building,  fixtures. 

Cited  in  notes  (6  L.  R.  A.  249,  10  L.  R.  A.  723)  on  what  constitutes  fixtures; 
(9  L.  R.  A.  700)  on  tenant's  right  to  remove  fixtures. 


5  L.R.A.  596]  L.  R.  A.  CASES  AS  AUTHORITIES.  910 

5  L.  R.  A.  596,  BENDER  v.  BEEN,  78  Iowa,  283,  43  N.  W.  216. 
Consideration. 

Cited  in  Keller  v.  Strong,  104  Iowa,  587,  73  N.  W.  1071,  holding  agreement  to 
accept  less  than  amount  due  on  sale  of  land,  without  consideration;  Rauen  v. 
Prudential  Ins.  Co.  129  Iowa,  741,  106  N.  W.  198,  holding  that  where  the 
insurance  company  knew  that  it  had  no  defense  to  the  claim  for  insurance,  a 
release  by  the  beneficiary  for  a  lesser  anieunt  was  without  consideration  and 
would  not  defeat  an  action  for  the  full  amount;  Cartan  v.  Wm.  Tackaberry 
Co.  139  Iowa,  588,  117  N.  W.  953,  holding  that  a  part  payment  of  a  disputed 
claim  is  not  a  release  of  the  debtor,  unless  there  are  additional  circumstances 
making  some  consideration  for  the  release;  McKinnon  v.  Holden,  85  Neb.  411, 
123  N.  W.  439,  on  the  part  payment  of  a  claim  as  a  satisfaction  thereof, 
without  other  consideration. 

Cited  in  notes   (12  L.R.A.  469)   on  validity  of  contract  without  consideration; 
{135  Am.  St.  Rep.  769)   on  burden  of  proving  want  of  consideration. 
Effect    of    seal. 

Cited  in  note  (11  L.  R.  A.  833)  on  effect  of  addition  of  seal  on  commercial 
paper. 

5  L.  R.  A.  597,  NICHOLS  v.  DAY,  128  Pa.  428,  18  Atl.  333. 

Who   entitled   to  insurance  or   damages   for   injuries   to   realty. 

Cited  in  Matthews  v.  American  Cent.  Ins.  Co.  9  App.  Div.  345,  41  N.  Y.  Supp. 
304,  holding  it  duty  of  heir  or  devisee  to  furnish  proofs  of  loss  or  obtain  appoint- 
ment of  temporary  administrator  where  insured  died  before  loss,  and  will  was 
contested;  Callahan's  Estate,  5  Lack.  Legal  News,  108,  holding  insurance  money 
from  loss  of  property  subject  to  deficiency  and  claims  of  devisees;  O'Brien's 
Estate,  19  Pa.  Co.  Ct.  468,  holding  interest  of  judgment  creditors  superior  to 
that  of  general  creditors  in  proceeds  of  policy  on  building;  Re  Helbling,  32  Pitts. 
L.  J.  N.  S.  378,  sustaining  judgment  creditor's  claim  to  damages  recovered  by 
devisee  for  injury  to  land  from  flood;  De  Witt  v.  Lehigh  Valley  R.  Co.  21  Pa. 
Super.  Ct.  14,  sustaining  claim  of  creditors  of  remainderman  in  fund  paid  for 
destruction  of  house  in  possession  of  life  tenant. 

5  L.  R.  A.  599,  LAUGHMAN  v.  PIPER,  128  Pa.  1,  18  Atl.  415. 
Trade-marks. 

Cited  in  Columbia  Mill  Co.  v.  Alcorn,  150  U.  S.  466,  37  L.  ed.  1147,  14  Sup. 
Ct.  Rep.  151,  holding  word  "Columbia"  cannot  be  exclusively  appropriated  for 
trade-mark;  Koehler  v.  Sanders,  122  N.  Y.  74,  9  L.  R.  A.  578,  footnote  p.  576, 
25  N.  E.  235,  denying  right  to  appropriate  word  "international"  as  trade-mark; 
Elgin  Butter  Co.  v.  Elgin  Creamery  Co.  155  111.  136,  40  N.  E.  616,  holding  butter 
company  cannot  acquire  exclusive  use  of  name  of  place  in  connection  with  butter 
and  creamery;  Church  &  D.  Co.  v.  Russ,  99  Fed.  278,  holding  infringement  shown 
by  use  of  another's  trade-mark  on  articles  of  same  class;  Hoyt  v.  Hoyt,  143  Pa. 
638,  29  W.  N.  C.  315,  13  L.  R.  A.  345,  24  Am.  St.  Rep.  575,  22  Atl.  755,  holding 
manufacturer  cannot  appropriate  name  not  exclusively  his,  nor  package  used 
generally  in  trade;  Coffman  v.  Castner,  31  C.  C.  A.  59,  59  U.  S.  App.  35,  87  Fed. 
462,  holding  geographical  name  cannot  be  appropriated  by  one  doing  business  in 
that  place  to  exclusion  of  others  doing  business  there;  McVey  v.  Brendel,  144  Pa. 
246,  13  L.  R.  A.  379,  footnote,  p.  379,  29  W.  N.  C.  5,  27  Am.  St.  Rep.  625,  22 
Atl.  912,  holding  equity  will  not  protect  labor  union  in  use  of  nontrade-mark 
label ;  Clark  v.  Scott,  4  Lack.  Legal  News,  163,  restraining  use  of  tobacco  pack- 
ages similar  to  those  of  plaintiff;  Dyment  v.  Lewis,  144  Iowa.  514,  26  L.R.A. 
(N.S.)  80,  123  N.  W.  244,  holding  that  one  who  has  designated  locality  in 


»H  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  603 

connection  with  character  of  his  business  and  locality  has  become  important 
with  customers,  will  be  protected  against  use  of  like  trade  name  by  another; 
Re  Quemahoning  Valley  Coal  Co.  13  Pa.  Dist.  R.  447,  on  the  use  of  a  geo- 
graphical name  as  a  tradename;  Tuckahoe  Mineral  Springs  Co.  v.  Tuckahoe 
Lithia  Water  Co.  18  Pa.  Dist.  R.  987,  holding  that  a  local  descriptive  name, 
or  the  name  of  a  widely  diffused  mineral  cannot  be  used  as  a  trademark;  E.  T. 
Fraim  Lock  Co.  v.  Shimer,  43  Pa.  Super.  Ct.  231,  12  North  Co.  Rep.  11,  on 
words  in  common  use  as  designating  locality,  section  or  origin  of  territory  as 
ligitimate  for  use  as  trademark;  Re  Standard  Quemahoning  Coal  Co.  20  Pa. 
Dist.  R.  1010,  holding  that  name  of  valley  where  coal  is  mined  cannot  be 
appropriated  as  tradename  by  corporation  engaged  in  coal  business;  44  Cigar 
Co.  v.  Cohen,  28  Lane.  L.  Rev.  235,  holding  that  numerals  employed  to  indicate 
ownership  may  be  valid  trademark;  Reymer  &  Bros.  v.  Huyler's,  190  Fed.  85, 
59  Pitts.  L.  J.  636,  to  the  point  that  tendency  of  courts  is  to  restrict  scope  of 
law  applicable  to  technical  trademarks  and  to  extend  scope  in  cases  of  unfair 
competition. 

Cited  in  footnotes  to  Levy  v.  Waitt,  25  L.  R.  A.  190,  which  refuses  to  enjoin 
as  infringement  uninterrupted  and  innocent  use,  without  question,  of  local 
geographical  name  for  five  years;  American  Waltham  Watch  Co.  v.  United  States 
Watch  Co.  43  L.  R.  A.  826,  which  authorizes  injunction  against  deceptive  use 
of  word  "Waltham"  by  other  manufacturer  of  watches  at  same  place;  Pillsbury- 
Washburn  Flour  Mills  Co.  v.  Eagle,  41  L.  R.  A.  162,  which  authorizes  injunction 
against  use  of  geographical  name  on  Hour  made  elsewhere  from  wheat  of  different 
grade;  Chadwick  v.  Covell,  6  L.  R.  A.  839,  which  holds  grantee  of  trade-mark 
to  medicine  made  according  to  secret  recipes  who  does  not  obtain  exclusive  right 
to  use,  not  entitled  to  enjoin  use  by  others;  Symonds  v.  Jones,  8  L.  R.  A.  570, 
which  holds  transferrer  of  trade-mark,  though  containing  his  name  or  initials, 
cannot  use  same. 

Cited  in  notes  (6  L.  R.  A.  823)  on  trade-name  and  trade-mark;  (9  L.  R.  A. 
145)  on  object  of  trade-mark;  (9  L.  R.  A.  149)  on  right  to  exclusive  use  of 
trade-mark;  (9  L.  R.  A.  146)  on  trade-mark  in  geographical  names;  (9  L.  R.  A. 
147)  on  when  property  right  in  trademark  attaches;  (26  L.R.A.  (N.S.)  80,  82, 
88,  90)  on  right  to  protection  in  use  of  geographical  name;  (85  Am.  St.  Rep. 
108)  on  what  words  or  phrases  may  constitute  a  valid  trademark;  (45  L.  ed. 
U.  S.  366,  367)  on  trademark  in  geographical  name. 
Sale  or  assignment. 

Cited  in  Kronthal  Waters  v.  Becker,  137  Fed.  652,  holding  that  a  tradename 
which  was  not  good  as  a  technical  trademark,  passed  under  a  sale  of  assets 
and  good-will  of  a  business. 

Cited  in  note  (1  L.R.A.(N.S.)  706,  717,  722)  on  sale  of  trademark. 
Payment    of    royalty. 

Cited  in  Miller  v.  Billington,  6  Pa.  Dist.  R.  336,  sustaining  right  to  enforce 
contract  reserving  royalty,  although  one  certificate  void. 

5  L.  R.  A.  603,  WILLS  v.  MANUFACTURERS  NATURAL  GAS  CO.  130  Pa.  222, 

18  Atl.  721. 
To  whom   provision   for  forfeiture  on   default   available. 

Cited  in   Su?quehanna  Mut.  F.   Ins.   Co.  v.  Leavy,   136  Pa.  514,  20  Atl.  502. 
holding  provision  avoiding  policy  for  nonpayment  of  premium  available  to  in- 
surer only. 
—  Leases. 

Followed  without  discussion  in  Gibson  v.  Oliver,  158  Pa.  279,  27  Atl.  961. 


5  L.R.A.  603]  L.  R.  A.  CASES  AS  AUTHORITIES.  912 

Cited  in  Westmoreland  &  C.  Natural  Gas  Co.  v.  Dewitt,  130  Pa.  253,  5  L.  R.  A. 
734,  18  Atl.  724,  holding  clause  providing  for  forfeiture  of  lease  upon  lessee's 
default  not  self-operating;  Edmonds  v.  Mounsey,  15  Ind.  App.  403,  44  N.  E.  196, 
holding  provision  avoiding  lease  on  lessee's  default  does  not  benefit  lessee  unless 
lessor  so  elects;  Island  Coal  Co.  v.  Combs,  152  Ind.  390,  53  N.  E.  452,  holding 
provision  for  forfeiture  for  failure  to  begin  operations  under  mining  lease,  at 
lessor's  option,  avoids  lessee's  rights;  Evans  v.  Consumers'  Gas  Trust  Co.  (Ind.) 
31  L.  R.  A.  676,  29  N.  E.  398;  Roberts  v.  Bettman,  45  W.  Va.  147,  30  S.  E.  95; 
Thomas  v.  Hukill,  34  W.  Va.  397,  12  S.  E.  522, —  holding  lease  providing  for 
forfeiture  on  lessee's  default  terminable  only  at  lessor's  option;  Bartley  v. 
Phillips,  165  Pa.  329,  36  W.  N.  C.  21,  30  Atl.  842,  Subsequent  Appeal  in  179 
Pa.  182,  36  Atl.  217;Cochran  v.  Pew,  159  Pa.  187,  33  W.  N.  C.  548,  28  Atl.  219; 
Sanders  v.  Sharp,  153  Pa.  567,  31  W.  N.  C.  377,  25  Atl.  524;  Woodland  Oil  Co. 
v.  Crawford,  55  Ohio  St.  178,  34  L.  R.  A.  67,  44  N.  E.  1093;  Jones  v.  Western 
Pennsylvania  Natural  Gas  Co.  146  Pa.  211,  29  W.  N.  C.  268,  23  Atl.  386; 
Leatherman  v.  Oliver,  151  Pa.  650,  31  W.  N.  C.  206,  25  Atl.  309;  Miller  v. 
Logan,  31  Pittsb.  L.  J.  N.  S.  217,  holding  that  provision  avoiding  oil  lease  for 
failure  to  drill  is  for  lessor's  benefit;  Ogden  v.  Hatry,  145  Pa.  642,  23  Atl.  334, 
holding  provision  avoiding  lease  on  lessee's  default,  "extinguishing  rights  of  par- 
ties as  if  agreement  had  never  been  made,"  for  lessor's  benefit;  Morris  v.  De  Wolf, 
11  Tex.  Civ.  App.  701,  33  S.  W.  556;  Brown  v.  Cairns,  63  Kan.  587,  66  Pac.  639; 
Agerter  v.  Vandergrift,  138  Pa.  593,  27  W.  N.  C.  238,  21  Atl.  202;  Fennell  v. 
Guffey,  139  Pa.  344,  20  Atl.  1048;  Ray  v.  Western  Pennsylvania  Natural  Gas 
Co.  138  Pa.  587,  12  L.  R.  A.  291,  27  W.  N.  C.  235,  21  Am.  St.  Rep.  922,  20  Atl. 
1065, —  holding  lessee  cannot  set  up  default  working  forfeiture,  as  defense  to 
action  on  lease;  Bettman  v.  Shadle,  22  Ind.  App.  548,  53  N.  E.  662,  holding  pro- 
vision that  lessee  pay  $2  per  day  until  well  commenced,  or  surrender  lease, 
renders  lessee  liable  for  penalties  accruing  prior  to  surrender;  Glasgow  v.  Char- 
tiers  Oil  Co.  31  W.  N.  C.  208,  denying  liability  of  lessee  of  oil  lands  leased  on 
condition,  and  not  under  covenant;  Aderhold  v.  Oil  Well  Supply  Co.  33  W.  N.  C. 
338,  holding  purchaser  of  oil  lease  at  sheriff's  sale  liable  for  breach  of  condition; 
Verdolite  Co.  v.  Richards,  7  Northampton  Co.  Rep.  119,  holding  equity  will  not 
declare  forfeiture  for  nonpayment  of  rent,  without  notice,  after  lessor's  acquies- 
cence in  other  violations;  McCarty  v.  Mellon,  5  Pa.  Dist.  R.  429,  refusing  to 
declare  forfeiture  of  oil  lease  after  lessor  suffered  lessee  to  continue;  Wheeling 
v.  Phillips,  10  Pa.  Super.  Ct.  637,  denying  landlord's  right  to  sue  for  back  rent  and 
also  declare  forfeiture;  English  v.  Yates,  205  Pa.  108,  54  Atl.  503.  holding  that 
lessee  cannot  by  own  default  end  lease  and  discharge  surety;  Henne  v.  South 
Penn  Oil  Co.  52  W.  Va.  200,  43  S.  E.  147,  holding  lessor's  releasing  oil  lands 
subject  to  first  lease  not  operate  as  forfeiture;  Johnson  v.  Lehigh  Valley  Traction 
Co.  130  Fed.  942,  denying  forfeiture  of  railroad  lease  for  nonpayment  of  divi- 
dends; Perry  v.  Acme  Oil  Co.  44  Ind.  App.  212,  88  N.  E.  859,  holding  that 
under  provision  in  oil  lease  that  well  will  be  sunk  within  certain  time  or 
failing  therein  to  pay  certain  rentals,  and  failing  to  pay,  lease  to  determine, 
lessor  may  elect  to  determine  lease  or  sue  for  breach  of  covenant;  Wilmore 
Coal  Co.  v.  Brown,  147  Fed.  938,  holding  a  condition  in  mining  lease  that  same 
shall  be  forfeited  if  a  railroad  is  not  built  to  a  certain  place  within  five  years, 
is  for  the  benefit  of  the  lessors,  and  does  not  pass  by  assignment  to  others; 
Steele  v.  Maher,  38  Pa.  Super.  Ct.  194,  holding  clause  providing  for  forfeiture 
in  case  of  breach  of  covenants  is  for  the  benefit  of  the  lessor  and  is  enforceable 
at  his -option;  Glasgow  v.  Griffith,  22  Pittsb.  L.  J.  N.  S.  182,  holding  that 
lessor  cannot  recover  monthly  payments  under  lease  providing  for  its  termina- 
tion unless  well  is  completed  before  certain  date  or  lessee  pays  monthly  sum 


913  L.  R,  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  606 

until  completion;  Lawson  v.  Williamson  Coal  &  Coke  Co.  61  W.  Va.  675,  57 
S.  E.  258,  holding  provision  in  lease  that  upon  failure  of  lessee  to  comply  with 
the  provisions  of  the  lease  that  the  same  shall  be  forfeited,  is  for  the  benefit 
of  the  lessor,  and  does  not  make  it  optional  with  the  lessee  whether  he  will 
accept  the  lease. 

Cited  in  notes  (31  L.R.A.  675)  on  forfeiture  of  oil  and  gas  lease;  (26  Am. 
St.  Rep.  911,  913)  on  forfeiture  of  lease  for  breach  of  condition  by  lessee;  (15 
Eng.  Rul.  Gas.  567)  on  lessor's  option  to  avoid  lease  on  lessee's  omission  or 
commission  of  acts  stipulated  for  or  against. 

Distinguished  in  Ramsey  v.  White,  21  Pittsb.  L.  J.  N.  S.  426,  holding  sur- 
render of  lease  after  commencement  of  action  for  monthly  payments,  sufficient 
defense,  where  lease  provides  that  lessee  may  surrender  lease  at  any  time  and 
that  payments  made  shall  be  full  stipulated  damages  for  nonfulfillment  of 
lease;  Vanvoorhis  v.  Oliver,  22  Pittsb.  L.  J.  N.  S.  114,  holding  that  lessee  may 
avail  himself  of  elective  right  in  lease  to  complete  well  within  certain  time  or 
pay  annual  rental  until  completion. 

Insurance    assessments. 

Cited  in  Dettra  v.  Murray,  18  Pa.  Co.  Ct.  11,  5  Pa.  Dist.  R.  202,  holding  non- 
payment of  insurance  assessment  will  not  alone  work  forfeiture. 

—  Land    contracts. 

Cited  in  Chambers  v.  Anderson,  51  Kan.  392,  32  Pac.  1098,  holding  provision 
annulling  land  contract  on  default  in  payments,  for  vendor's  benefit. 

Distinguished  in  Vito  v.  Birkel,  209  Pa.  209,  58  Atl.  127,  holding  that  where 
time  was  the  essence  of  the  contract  a  condition  in  the  contract  of  sale  for 
forfeiture  for  failure  to  pay  installment  was  self-operating. 

—  Construction   of   railroads. 

Cited  in  Scranton  R.  Co.  v.  Scranton,  5  Lack.  Legal  News,  258,  sustaining  in- 
junction against  construction  of  railway  after  forfeiture;    Burke  v.  Carbondale 
Traction  Co.  15  Pa.  Co.  Ct.  160,  3  Pa.  Dist.  R.  751,  holding  ordinance  necessary 
to  declare  forfeiture  of  right  to  build  railway  granted  by  ordinance. 
Lease;    rights   under,    where   no   time   limit   set. 

Followed  in  Sheasley  v.  Condrin,  10  Pa.  Dist.  R.  57,  holding  a  provision  in 
a  lease  for  recovering  rent  in  arrears,  at  time  of  repossessing  under  forfeiture 
clause,  will  be  enforced. 

Cited  in  Edwards  v.  Tola  Gas  Co.  65  Kan.  366,  69  Pac.  350,  denying  forfeiture 
of  gas  lease  when  time  not  essence  of  contract. 

Distinguished  in  Harlan  v.  Logansport  Natural  Gas  Co.  133  Ind.  330,  32  N.  E. 
930,  holding  no  rights  accrue  to  lessor  of  right  of  way  for  pipe  line  until  occu- 
pation, lease  fixing  no  time  limit. 

5  L.  R.  A.  606,  SHELBY  v.  CLAGETT,  46  Ohio  St.  549,  22  N.  E.  407. 
Evidence    of    nonprofessional    vritness. 

Cited  in  Baltimore  &  O.  R.  Co.  v.  Rambo,  8  C.  C.  A.  8,  16  U.  S.  App.  277, 
59  Fed.  77,  and  Lake  Shore  &  M.  S.  R.  Co.  v.  Gaffney,  9  Ohio  C.  C.  35,  holding 
nonprofessional  witness  may  testify  to  observation  of  injured  person's  suffering; 
Clow  v.  Smith,  85  Neb.  670,  124  N.  W.  140,  holding  that  the  wife  of  the 
defendant  in  a  bastardy  proceeding  may  testify  that  the  plaintiff  was  at  the 
time  she  became  pregnant  intimate  with  another  man,  not  the  defendant,  and 
her  opinion  was  that  this  man  was  the  father  of  the  plaintiffs  child;  Horn 
v.  State,  12  Wyo.  148,  73  Pac.  705,  holding  that  a  nonexpert  witness  may 
testify  as  to  the  manner  in  which  a  conversation  was  carried  on,  and  his 
opinion  as  to  the  state  of  mind  of  the  parties  to  it;  Baltimore  &  0.  Ry.  v. 
L.R.A.  Au.  Vol.  I.— 58. 


5  L.R.A.  606]  L.  R.  A.  CASES  AS  AUTHORITIES.  914 

Stoltz,  18  Ohio  C.  C.  95,  9  Ohio  C.  D.  640,  holding  admissible  opinion  of  non- 
expert witness  who  saw  train,  as  to  speed  at  which  it  was  moving. 

Cited  in  note  (30  Am.  St.  Rep.  38)   on  admissibility  of  nonexpert  opinions. 
\  ilm  is«.i  i.i  1  i  t  >    of  evidence  as  to  character. 

Cited  in  Smith  v.  Johnson,  3  Ohio  X.  P.  N.  S.  10,  16  Ohio  S.  &  C.  P.  Dec. 
44,  holding  inadmissible  in  personal  injury  action  evidence  of  plaintiff's  "irregu- 
lar habits"  for  purpose  of  showing  that  ill  health  was  not-wholly  due  to  injury; 
Smith  v.  Johnson,  3  Ohio  N.  P.  N.  S.  11,  16  Ohio  S.  &  C.  P.  Dec.  45,  holding 
inadmissible  in  civil  action  evidence  of  bad  moral  character  of  witness,  on 
question  of  his  credibility. 
Municipal  liability  for  defective  highway. 

Cited  in  Birmingham  v.  Lewis,  92  Ala.  356,  9  So.  243,  holding  lack  of  funds 
no  defense  where  other  means  not  exhausted;  Heath  v.  Manson,  147  Cal.  700, 
82  Pac.  331,  holding  lack  of  funds  no  defense  to  action  for  injuries  through 
defective  sidewralk,  where  provision  was  made  for  providing  funds. 

Cited  in  notes  (10  L.  R.  A.  736)  on  duty  of  municipality  to  keep  streets  and 
sidewalks  in  safe  condition,  and  liability  for  neglect  to  do  so;  (10  L.  R.  A.  738) 
on  notice  of  defect  in  sidewalk;  (10  L.  R.  A.  740)  on  proof  of  unsafe  condition 
of  sidewalk;  (20  L.R.A. ( N.S. )  530,  719,  723)  on  liability  of  municipality  for 
defects  or  obstructions  in  streets. 
Notice. 

Cited  in  Nothdurft  v.  Lincoln,  66  Neb.  439,  96  N.  W.  165,  holding  that  the 
fact  of  notice  to  the  city  of  a  defect  in  a  sidewalk  must  be  proved  and  cannot 
be  left  to  conjecture;  Scrogin  v.  Cincinnati,  13  Ohio  C.  C.  N.  S.  294,  3  Ohio 
C.  C.  649,  holding  that  notice  to  city  of  bad  condition  of  sidewalk  due  to 
sliding  of  adjacent  hillside  is  not  notice  as  matter  of  law  of  particular  defect 
causing  injury. 

Cited  in  notes  (10  L.R.A.  738)  on  notice  of  defect  in  sidewalk;  (30  Am.  St. 
Rep.  525)  on  notice  of  defects  in  streets. 

5  L.  R.  A.  609,  HORRIGAN  v.  CLARKSBURG,  150  Mass.  218,  22  N.  E.  897. 
Contributory    negligence. 

Cited  in  note  (10  L.  R.  A.  477)  on  contributory  negligence  precluding  recovery 
for  injury  in  highway. 
Liability  of  municipality  for  defects  in  streets. 

Cited  in  notes  (13  L.R.A. (N.S.)  1255;  20  L.R.A. (N.S.)  735,  741)  on  liability 
of  municipality  for  defects  or  obstructions  in  streets. 

5  L.  R.  A.  611,  NORFOLK  SOUTHERN  R.  CO.  v.  BARNES,  104  N.  C.  25,  10 

S.  E.  83. 
Passing   of   title    by   delivery    to    carrier. 

Cited  in  State  v.  Groves,  121  N.  C.  634,  28  S.  E.  493,  holding  delivery  of  goods 
for  shipment  to  vendee  completes  sale;  United  States  v.  Orene  Parker  Co.  121 
Fed.  599,' and  United  States  v.  Adams  Exp.  Co.  119  Fed.  244,  holding  that  title 
to  liquor  passed  to  consignee  on  delivery  to  carrier  who  collected  price;  Jones 
v.  United  States,  24  L.R.A.  (N.S.)  146,  95  C.  C.  A.  213,  170  Fed.  4,  on  the 
passing  of  title  by  delivery  to  carrier,  so  as  to  fix  place  of  sale;  Asheboro 
Wheelbarrow  &  Mfg.  Co.  v.  Southern  R.  Co.  149  N.  C.  263,  62  S.  E.  1091, 
holding  that  where  goods  were  shipped,  consigned  to  seller,  marked  to  notify 
the  purchaser,  title  did  not  pass;  State  v.  J.  W.  Kelly  &  Co.  123  Tenn.  569. 
36  L.R.A. (N.S.)  175,  133  S.  W.  1011,  holding  that  title  to  goods  passes  upon 
delivery  to  carrier  where  goods  are  ordered  through  mail. 


«15  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  612 

Cited  in  notes  (22  L.R.A.  425)  on  passing  of  title  to  property  by  delivery 
to  carrier  for  transportation  to  consignee  or  vendee;  (23  Eng.  Rul.  Gas.  385) 
on  retention  of  title  after  shipment  C.  0.  D. 

Distinguished  in  State  v.  Caldwell,  127  N.  C.  526,  37  S.  E.  138,  holding  goods 
consigned   to   vendor   remain   his   property,   until   actual   delivery   to   vendee   by 
vendor  or  his  agent. 
L.OSS  of  lien  by  parting  with  posaeaaion. 

Cited  in  Lembeck  v.  Jarvis  Termirfal  Cold  Storage  Co.  68  N.  J.  Eq.  498,  59 
Atl.  360,  holding  that  as  against  third  persons  without  notice,  a  lien  of  a 
carrier  for  freight  was  lost  by  delivery  to  the  consignee  though  the  latter  agreed 
to  hold  them  until  the  freight  was  paid. 

Cited  in  notes  (5  Eng.  Rul.  Cas.  285;  16  Eng.  Rul.  Cas.  145)  on  loss  of 
lien  by  parting  with  possession. 

5  L.  R.  A.  612,  BLOOD  BALM  CO.  v.  COOPER,  83  Ga.  457,  20  Am.  St.  Rep.  324, 

10  S.  E.  118. 
Liability    for   sale   of    dangerous   article. 

Cited  in  Peters  v.  Peters  v.  Johnson,  50  W.  Va.  650,  57  L.  R.  A.  430,  88  Am. 
St.  Rep.  909,  41  S.  E.  190,  holding  seller  of  poisonous  drug  by  mistake  liable 
to  third  person  taking  it  for  medicine;  Woodward  v.  Miller,  119  Ga.  621,  64  L.R.A. 
935,  46  S.  E.  847,  holding  manufacturer  of  buggy  knowing  it  to  be  unsafe,  liable 
to  one  injured;  Woodward  v.  Miller,  119  Ga.  621,  64  L.R.A.  932,  100  Am.  St. 
Rep.  188,  46  S.  E.  847,  holding  manufacturer  liable  for  injuries  to  person  for 
whom  buggy  was  intended,  where  the  former  sold  to  a  municipality  a  buggy 
which  it  knew  to  be  defective  but  had  covered  the  defect  with  paint;  Darks 
v.  Scudder-Gale  Grocer  Co.  146  Mo.  App.  265,  130  S.  W.  430,  holding  dealer 
liable  to  one  injured  by  poison  sold  by  him  for  harmless  compound,  provided 
injury  was  direct  and  probable  consequence  of  dealer's  negligence;  Tomlinson 
v.  Armour  &  Co.  75  X.  J.  L.  760,  19  L,R.A.(N.S.)  937,  70  Atl.  314,  holding  a 
manufacturer  liable  for  placing  in  cans  for  sale,  diseased  meats,  to  persons 
injured  by  eating  same  though  purchased  from  a  retailer;  Hasbrouck  v.  Armour 

6  Co.  139  Wis.  364,  23  L.R.A.  (N.S.)   879,  121  N.  W.  157,  holding  manufacturer 
of  soap  was  not  liable  for  injuries  to  a  buyer,  through  the  dropping  of  a  needle 
into  the  soap  in  the  course  of  manufacture;   Watson  v.  Augusta  Brewing  Co. 
124  Ga.  123,  1  L.R_A.(N.S.)   1180,  110  Am.  St.  Rep.  157,  52  S.  E.  152,  holding 
manufacturer  liable  for  injuries  through  swallowing  pieces  of  glass,  while  drink- 
ing beverage,  bottled  by  such  manufacturer;   Weiser  v.  Holzman,  33  Wash.  92, 
99  Am.  St.  Rep.  932,  73  Pac.  797,  holding  manufacturer  or  dealer  is  liable  for 
injuries   through  explosion   of  champagne  cider,   in  a  bottle  which   is  sufficient 
to   stand  the  pressure  of  the  charge  within;   O'Neill  v.  James,   138  Mich.  573, 
68  L.R.A.  346,  110  Am.  St.  Rep.  321,  101  N.  W.  828,  5  A.  &  E.  Ann.  Cas.  177, 
on  the  same  point. 

Cited  in  footnote  to  Skinn  v.  Reutter,  63  L.R.A.  743,  which  holds  seller  of 
diseased  hogs  liable  for  injury  to  life  or  property  resulting  therefrom. 

Cited  in  notes  (13  L.R.A. (N.S.)  647)  on  liability  of  druggist  for  injury  to 
stranger  from  drug  or  poison  sold;  (29  L.R.A. (N.S.)  902)  on  duty  of  druggist 
or  apothecary  in  sale  or  compounding  of  drugs  or  medicines;  (55  Am.  St.  Rep. 
257)  on  liability  of  apothecaries  and  druggists;  (100  Am.  St.  Rep.  198)  on 
right  to  recover  for  negligence  in  absence  of  privity. 

Distinguished  in  Salmon  v.  Libby,  McNeil  &  Libby,  114  111.  App.  265,  holding 
where  the  nature  of  the  foodstuff  is  not  inherently  dangerous,  and  there  is  no 
fraud,  concealment  or  implied  invitation,  and  where  there  is  no  privity  of  con- 
tract between  the  parties,  the  dealer  is  not  liable. 


5  L.R.A.  614}  L.  R.  A.  CASES  AS  AUTHORITIES.  916 

5  L.  R.  A.  614,  CARSONS  v.  URY,  39  Fed.  777. 
Protection  of  union  labels. 

Cited  in  State  v.  Bishop,  128  Mo.  381,  29  L.  R.  A.  205,  49  Am.  St.  Rep.  569r 
31  S.  W.  9,  holding  labor  union  may  be  protected  by  appropriate  legislation  in 
use  of  label. 

Cited  in  notes  (6  L.  R.  A.  823)  on  trade-name  and  trade-mark;  (29  L.  R.  A. 
200)  on  protection  of  trade  union  labels  as  trade-marks;  (39  L.R.A. (N.S.)  1192, 
1196,  1197,  1198,  1199,  on  law  as  to  union  labels. 

Distinguished  in  State  v.  Berlinsheimer,  62  Mo.  App.  174,  holding  union  label 
not  within  purview  of  statute  protecting  trade-marks. 
—  By   courts  of  equity- 

Cited  in  Hennessy  v.  Hermann,  89  Fed.  670,  holding  selling  of  imitation  labels 
enjoinable;  Tracy  v.  Banker,  170  Mass.  271,  39  L.  R.  A.  510,  49  N.  E.  308,  holding 
illegality  of  incidental  purpose  does  not  deprive  trade  union  of  protection  in 
use  of  label;  State  v.  Hagen,  6  Ind.  App.  170,  33  N.  E.  223,  and  Hetterman  Bros, 
v.  Powers,  102  Ky.  142,  39  L.  R.  A.  213,  80  Am.  St.  Rep.  348,  43  S.  W.  180,  hold- 
ing label  stating  cigars  "are  not  product  of  inferior,  ratshop,  coolie,  prison,  or 
filthy  tenement-house  workmanship"  not  attack  on  others. 

Distinguished  in  Weener  v.  Brayton,  152  Mass.  106,  8  L.  R.  A.  644,  25  N.  E. 
46,  holding  individual  members  or  officers  of  union  cannot  enjoin  fraudulent  use 
of  label. 
Unlawful    competition    by    imitation. 

Cited  in  Societe  Anonyme  v.  Western  Distilling  Co.  43  Fed.  417,  holding  imita- 
tion of  packages  and  labels  of  another  manufacturer  enjoinable;  C.  F.  Simmons 
Medicine  Co.  v.  Mansfield  Drug  Co.  93  Tenn.  122,  23  S.  W.  165,  holding  imita- 
tion of  medicine  packages,  deceiving  ordinary  observer,  enjoinable. 

Cited  in  footnote  to  American  Washboard  Co.  v.  Saginaw  Mfg.  Co.  50  L.  R.  A. 
609,  which  holds  false  description  of  zinc  washboards  as  "aluminum"  not  unlawful 
competition. 

Distinguished  in  Gessler  v.  Grieb,  80  Wis.  28,  27  Am.  St.  Rep.  20,  48  N.  W. 
1098,  holding  use  of  packages  not  substantially  similar  not  enjoinable;  Lawlor 
v.  Merritt,  78  Conn.  635,  63  Atl.  639,  holding  that  a  label  issued  by  an  unincor- 
porated association  of  dealers,  which  did  not  make  the  article  themselves,  but 
issued  the  labels  to  manufacturers  who  employed  union  laborers,  would  not 
be  protected. 

5  L.  R.  A.  617,  TIGHE  v.  MORRISON,  116  N.  Y.  263,  22  N.  E.  164. 

Statute    of    frauds;    agreement    to    answer    for    another's    default. 

Cited  in  Barth  v.  Graf,  101  Wis.  39,  76  X.  W.  1100,  holding  principal's  parol 
agreement  to  indemnify  sureties  on  bond  valid;  Rose  v.  Wollenberg,  31  Or.  281, 
39  L.  R.  A.  383,  65  Am.  St.  Rep.  826,  44  Pac.  382,  holding  parol  agreement  as 
to  relative  liability  of  cosureties  valid;  Warren  v.  Abbett,  65  N.  J.  L.  101,  46  Atl. 
575,  holding  parol  promise  to  indemnify  indorser  of  third  person's  note  valid; 
Jones  v.  Bacon,  145  N.  Y.  449,  40  N.  E.  216,  Affirming  72  Hun,  509,  25  N.  Y. 
Supp.  212,  holding  oral  promise  to  indemnify  guarantor  for  third  person  valid; 
Resseter  v.  W'aterman,  151  111.  176,  37  X.  E.  875,  Reversing  45  111.  App.  162, 
holding  parol  promise  to  one  signing  note  as  surety  to  promisor  to  procure 
security  from  maker  valid;  Merchant  v.  O'Rourke,  111  Iowa,  356,  82  N.  W.  759, 
holding  parol  promise  to  save  purchaser  from  liability  on  stock  valid:  Williams 
v.  Auten,  62  Neb.  838,  87  N".  W.  1061,  holding  parol  guaranty  of  another's  debt 
void:  Wilkie  v.  Marshall,  77  N.  J.  L.  275,  72  Atl.  30,  holding  a  promise  by 
one  to  pay  the  debt  incurred  by  another  in  the  course  of  a  specific  litigation 


*!7  L-  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  620 

if  it  were  unsuccessful,  is  not  within  the  statute;  Wattenbarger  v.  Hodges,  38 
Tex.  Civ.  App.  332,  85  S.  W.  1013,  holding  where  the  purchaser  was  to  forfeit 
a  certain  amount  for  failure  to  complete  contract  to  purchase  lands,  and  another 
in  consideration  of  an  extension  of  time  to  the  purchaser,  agrees  to  forfeit  a 
greater  amount,  the  agreement  is  not  within  the  statute. 

Cited  in  footnote  to  Dillaby  v.  Wilcox,  13  L.  R.  A.  643,  which  holds  adminis- 
trator's verbal  promise  to  pay  taxes  assessed  against  mortgagor  void. 

Distinguished  in  Hartley  v.  Sandford,  66  N.  J.  L.  631,  55  L.  R.  A.  207,  foot- 
note, p.  206,  50  Atl.  454,  which  holds  void,  father's  oral  promise  to  reimburse 
surety  for  son  if  latter  fails  to  pay  debt;  Barnett  v.  Wing,  62  Hun,  129,  16  N.  Y. 
Supp.  567,  holding  parol  promise  to  indemnify  indorser  for  third  person  void. 
Liability    of    coadmlnistrator    on    bond. 

Distinguished  in  Nanz  v.  Oakley,  120  N.  Y.  88,  9  L.  R.  A.  226,  24  N.  E.  306, 
holding  joint  administrator,  not  consenting  to  or  joining  in  another's  mismanage- 
ment, not  liable. 
Adoption    of   ancestor's    debt   by    heir. 

Cited  in  Murdock  v.  Robinson,  71  Hun,  324,  25  N.  Y.  Supp.  120,  holding  pay- 
ment on  mortgage  by  heir  prevents  statute  of  limitations  running  in  favor  of 
grantee  of  part  of  premises. 

5  L.  R.  A.  620,  HILL  v.  HOOLE,  116  N.  Y.  299,  22  N.  E.  547. 

Followed  without  discussion  in  Goodwin  v.  Thompson,  88  Hun,  600,  34  N.  Y. 
Supp.  769. 
Rights   of   assignee   of   chose   In   action. 

Cited  in  Rapps  v.  Gottlieb,  67  Hun,  116,  22  N.  Y.  Supp.  52;  Sparling  v.  Wells, 
24  App.  Div.  587,  49  N.  Y.  Supp.  321;  Parmerter  v.  Colrick,  20  Misc.  205,  45 
N.  Y.  Supp.  748, —  holding  assignee  of  bond  and  mortgage  takes  security  subject 
to  all  defenses  existing  between  original  parties;  Dodge  v.  Manning,  19  App. 
Div.  34,  46  N.  Y.  Supp.  1049,  holding  assignee  of  mortgage  takes  subject,  not 
only  to  equities  between  original  parties,  but  also  to  those  in  favor  of  third 
parties  against  assignor;  Griswold  v.  Caldwell,  65  App.  Div.  375,  73  N.  Y. 
Supp.  2,  holding  rule  that  assignee  of  mortgage  takes  subject  to  equities  existing 
in  favor  of  mortgagor  is  based  on  principle  of  estoppel ;  Wood  v.  Travis,  24 
Misc.  594,  54  N.  Y.  Supp.  60,  holding  bona  fide  purchaser  of  mortgage  takes 
same  subject  to  defense  of  want  of  consideration;  Fitch  v.  McDowell,  80  Hun, 
211,  30  N.  Y.  Supp.  31,  holding  note  given  mortgagee  as  partial  payment  upon 
mortgage,  valid  where  mortgagor  had  no  notice  of  the  assignment,  and  the  note 
was  not  returned;  Baird  v.  Baird,  145  N.  Y.  661,  28  L.  R.  A.  377,  40  N.  E.  222, 
holding  mortgage  given  by  son  to  father  as  security  against  his  squandering 
land  conveyed  to  him  not  enforceable  in  hands  of  father's  executrix;  Flaglcr  v. 
Malloy,  30  N.  Y.  S.  R.  613,  9  N.  Y.  Supp.  573,  holding  lien  of  judgment  in  hands 
of  assignee  inferior  to  mortgage  subsequently  executed  correcting  prior  mort- 
gage which  antedated  judgment;  French  v.  Stevenson,  32  N.  Y.  S.  R.  768,  10 
N.  Y.  Supp.  386,  holding  assignee  of  judgment  bound  by  agreement  of  assignor 
to  satisfy  same  upon  consideration  received;  Schlitz  v.  Koch,  138  App.  Div. 
536,  123  N.  Y.  Supp.  302,  holding  that  assignee  of  mortgage  takes  subject  to 
legal  and  equitable  defenses  including  want  of  consideration. 
Defense  of  no  consideration  as  to  mortgage  given  to  defrand  creditors. 

Cited  in  Sparling  v.  Wells,  24  App.  Div.  587,  49  N.  Y.  Supp.  321,  holding  proof 
of  declarations  that  mortgage  was  without  consideration,  admissible,  though 
tending  to  show  fraudulent  intent. 


5  L.R.A.  620]  L.  R.  A.  CASES  AS  AUTHORITIES.  918 


Declaration*    of    mortmvuoe    as    to    validity    of    m 

Cited   in   Sparling  v.   Wells,   24  App.   Div.   588,  49   N.  Y.   Supp.   321,  holding 
assignee  of  mortgage  seeking  to  exclude  declarations  of  former  holder  of  mortgage 
from  evidence  on  foreclosure  must  show  that  he  is  bona  fide  holder  for  value. 
I'arol    evidence    to    vary    terms    of    inortgpagre. 

Cited  in  Snyder  v.  Ash,  30  App.  Div.  185,  51  N.  Y.  Supp.  772  (dissenting 
opinion),  majority  holding  mortgage  cannot  be  contradicted  by  parol  evidence 
that  mortgagee  represented  instrument  did  not  cover  wife's  interest  in  property. 
Estoppel  to  deny  validity  of  deed  or  mortgage. 

Cited  in  Merkle  v.  Beidleman,  30  App.  Div.  21,  51  N.  Y.  Supp.  916,  and  Spar- 
ling v.  Wells,  24  App.  Div.  586,  49  N.  Y.  Supp.  321,  holding  representation  to 
purchaser  that  mortgage  is  valid  estops  mortgagor  from  setting  up  contrary; 
Marden  v.  Dorthy,  160  N.  Y.  68,  46  L.  R.  A.  704,  54  N.  E.  726  (dissenting  opin- 
ion), majority  holding  where  signature  to  deed  fraudulently  procured,  mortgage 
given  by  grantee  invalid  in  hands  of  one  accepting  same  on  faith  of  record  of 
deed;  Merchants'  Bank  v.  Weill,  163  N.  Y.  490,  79  Am.  St.  Rep.  605,  57  N.  E. 
749,  Affirming  29  App.  Div.  114,  52  N.  Y.  Supp.  37,  holding  bona  fide  assignee 
of  mortgage  for  purchase  money  not  affected  by  parol  agreement  between  vendor 
and  vendee  that  sale  may  be  rescinded  in  two  years. 

5  L.  R.  A.  623,  WAHL  v.  BARNUM,  116  N.  Y.  87,  22  N.  E.  280. 
Review    of    order    denying    neve    trial. 

Cited  in  Townsend  v.  Van  Buskirk,  162  N.  Y.  267,  56  N.  E.  837,  holding  order 
of  appellate  division  for  new  trial  on  appeal  from  interlocutory  judgment  not 
reviewable  in  Court  of  Appeals,  as  appeal  from  order  for  new  trial  upon  motion 
made  upon  exceptions,  where  order  did  not  dispose  of  exceptions. 
Contracts   within    statute    of    frauds. 

Cited  in  McGirr  v.  Campbell,  71  App.  Div.  86,  75  N.  Y.  Supp.  571,  holding 
agreement  not  again  to  enter  into  or  carry  on  business  sold,  for  twenty-seven 
months,  within  statute  of  frauds;  Butler  v.  Dinan,  47  N.  Y.  S.  R.  363,  19 
N.  Y.  Supp.  950,  holding  verbal  partnership  agreement  for  term  of  ten  years 
void;  Sanger  v.  French,  157  N.  Y.  234,  51  N.  E.  979,  holding  that  partner  in 
going  concern  established  under  verbal  agreement  of  partnership  has  action  for 
equitable  accounting,  without  dissolution;  Baker  v.  Codding,  44  N.  Y.  S.  R.  787, 
18  N.  Y.  Supp.  159,  holding  part  performance  will  not  take  contract  out  of  the 
statute;  Fanger  v.  Caspary,  87  App.  Div.  419,  84  N.  Y.  Supp.  410,  holding  oral 
contract  made  December  30,  1900,  to  work  from  January  8,  1901,  to  following 
January,  void;  Rauch  v.  Donovan,  126  App.  Div.  57,  110  N.  Y.  Supp.  690, 
holding  an  agreement  to  form  a  partnership  with  respect  to  a  specific  piece 
of  land,  title  to  be  taken  in  name  of  one,  is  not  within  the  statute. 
Finality  of  account  stated. 

Cited  in  Hale  v.  Hale,  14  S.  D.  646,  86  N.  W.  650,  holding  that  account  stated 
by  partners  will  not  be  opened  for  investigation  in  absence  of  mistake,  fraud,  or 
duress,  even  in  action  for  accounting;  Abe  Stein  Co.  v.  Robertson,  38  App.  Div. 
313,  57  N.  Y.  Supp.  46,  holding  decision  of  broker  as  to  quality  of  goods  sold, 
stipulated  as  final  in  contract  of  sale,  final  in  absence  of  fraud,  mistake,  or 
collusion;  O'Brien  v.  New  York,  25  Misc.  221,  55  N.  Y.  Supp.  50,  holding  court 
without  jurisdiction  to  disturb  compromise  to  discharge  municipality's  moral 
obligation  and  avert  apprehended  recovery  in  far  greater  amount;  General  Elec- 
tric Co.  v.  Nassau  Electric  R.  Co.  36  App.  Div.  513,  55  N.  Y.  Supp.  858,  holding 
defendant  not  relieved  from  compromise  of  infringement  suit,  recognizing  va- 
lidity of  plaintiff's  patent  subsequently  declared  invalid;  Zoebisch  v.  Von  Minden. 


919  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  630 

120  X.  Y.  417,  24  N.  E.  795,  and  Dovale  v.  Ackerman,  11  Misc.  248,  33  N.  Y. 
Supp.  13,  holding  right  of  recovery  upon  substituted  agreement  not  dependent 
upon  validity  of  original  claim ;  St.  Nicholas  Skating  &  I.  Co.  v.  Cody,  26  Misc. 
767,  56  N.  Y.  Supp.  1063,  holding  compromise  agreement  to  pay  expense  of 
repairs  precludes  inquiry  into  liability  for  injury;  Sears  v.  Grand  Lodge,  A;  O. 
V.  W.  20  Misc.  55,  45  N.  Y.  Supp.  331,  holding  insurer  liable  upon  absolute 
agreement  to  pay  part  of  certificate  of  member  who  had  disappeared  nine  years 
before,  although  he  subsequently  reappears;  Sioux  City  Stock  Yards  Co.  v. 
Sioux  City  Packing  Co.  110  Iowa,  408,  81  N.  W.  712,  holding  lessee  of  premises 
entering  into  contract  for  occupation  thereof  with  third  party  purchasing  them 
not  liable  upon  original  lease  upon  vacating;  Barlow  v.  Platt,  133  App.  Div. 
367,  117  N.  Y.  Supp.  235,  holding  that  accounts  settled  between  the  parties 
will  not  be  opened  except  for  fraud,  duress,  or  mistake,  and  evidence  must  be 
strong  and  conclusive. 
Mutual  promises  as  consideration. 

Cited  in  West  v.  Bannigan,  51  App.  Div.  331,  64  N.  Y.  Supp.  884;  Housatonic 
Xat.  Bank  v.  Foster,  85  Hun,  377,  32  N.  Y.  Supp.  1031 ;  Struthers  v.  Smith,  85 
Hun,  262,  32  N.  Y.  Supp.  905,  —  holding  discharge  of  doubtful  claim  a  good  con- 
sideration for  third  party's  promise  to  pay  therefor;  Lawrence  v.  Church,  35 
N.  Y.  S.  R.  957,  12  N.  Y.  Supp.  420,  holding  mutual  promises  constitute  good 
consideration;  Becker  v.  Fischer,  13  App.  Div.  559,  77  N.  Y.  S.  R.  687,  43  N.  Y. 
Supp.  685,  holding  son's  indebtedness  under  partnership  agreement  sufficient  con- 
sideration for  father's  note  delivered  in  liquidation;  Chicago,  M.  &  St.  P.  R.  Co.  v. 
Clark,  35  C.  C.  A.  130.  92  Fed.  978,  holding  payment  of  unquestioned  liquidated 
debt  presently  due  not  sufficient  consideration  for  release  of  other  unliquidated 
claims;  McGlynn  v.  Scott,  4  X.  D.  24,  58  X.  W.  460,  holding  surrender  of  imag- 
inary lien,  when  in  fact  there  is  no  lien,  no  consideration  for  note. 

Cited   in  notes    (15  L.R.A.  439;   25  L.R.A.(N.S.)    278)    as  to  essentials  of  a 
compromise. 
Inconsistent    finding's. 

Cited  in  Cohoes  v.  Delaware  &  H.  Canal  Co.  134  N.  Y.  405,  31  N.  E.  887,  hold- 
ing court  compelled  to  accept  finding  most  favorable  to  appellant,  where 
trial  judge  found  both  that  there  had  and  had  not  been  highway  by  dedication 
at  locus  in  quo;  Walrath  v.  Abbott,  85  Hun,  183,  32  X.  Y.  Supp.  596,  holding  un- 
successful party  entitled  to  benefit  of  finding  at  his  request,  inconsistent  with 
other  findings;  Traders'  Nat.  Bank  v.  Parker,  130  X.  Y.  417,  29  X.  E.  1094,  hold- 
ing that  findings  of  fact  most  favorable  to  appellant  will  control  where  they  are 
so  inconsistent  as  not  to  be  reconcilable:  Xickell  v.  Tracy,  184  N.  Y.  390,  77 
X.  E.  391,  holding  that  where  findings  of  fact  are  contradictory  and  inconsistent, 
the  defeated  party  is  entitled  to  the  benefit  of  those  most  favorable  to  himself. 

5  L.  R.  A.  630,  JOHNSTON  v.  TRASK,  116  N.  Y.  136,  15  Am.  St.  Rep.  394,  22 

X.  E.  377. 
Oral    promise    to    purchase. 

Cited  in  Mulford  v.  Torrey  Exploration  Co.  45  Colo.  90,  100  Pac.  596,  holding 
a  contract  of  sale  of  personal  property  to  redeliver  upon  the  repayment  of  the 
purchase  price  within  a  certain  time,  is  not  within  the  statute  of  frauds. 

Distinguished  in  Chamberlain  v.  Jones,  32  App.  Div.  239,  52  N.  Y.  Supp.  998, 
holding  oral  promise  by  one  recommending  purchase  from  third  party,  to  pur- 
chase bonds  at  promisee's  election,  not  enforceable;  Morse  v.  Douglass,  112  App. 
Div.  S02.  99  X.  Y.  Supp.  392,  holding  that  where  the  purchaser  of  over  fifty 
dollars'  worth  of  stock  deals  with  an  agent  of  a  disclosed  principal,  and  the 


5  L.R.A.  630}  L.  R.  A.  CASES  AS  AUTHORITIES.  920 

agent  agrees  to  repurchase  the  stock  if  the  purchaser  becomes  dissatisfied  the 
latter  agreement  is  within  the  statute. 
Scope    of    partner's    authority. 

Cited  in  Rumsey  v.  Briggs,  139  N.  Y.  330,  34  N.  E.  929,  holding  firm  liable  on 
partner's  individual  note  given  for  land  purchased  for  partnership  purposes. 
Exercise  of  option  to  terminate  contract. 

Cited  in  Fuller  v.  Downing,  120  App.  Div.  38,  104  N.  Y.  Supp.  991,  holding 
that  the  right  to  terminate  a  contract  for  services,  under  option  in  it,  depends 
on  the  employer's  good  faith  in  intending  to  comply  with  terms  of  the  option. 
Laches   in   exercise   of   option. 

Cited  in  Lang  v.  Severance,  28  N.  Y.  S.  R.  534,  8  N.  Y.  Supp.  238,  and  Crandall 
v.  Haskins,  10  N.  Y.  S.  R.  108,  holding  option  to  return  goods  purchased  must 
be  exercised  within  reasonable  time;  Catlin  v.  Green,  120  N.  Y.  445,  24  N.  E. 
941,  Affirming  5  N.  Y.  S.  R.  868,  holding  nine  years'  delay  to  exercise  option  to 
exchange  stock  for  bonds,  laches. 
Entire  contracts. 

Cited  in  note  (59  Am.  St.  Rep.  278,  279)  on  entire  contracts. 

5  L.  R.  A.  632,  HUGHES  v.  JONES,  116  N.  Y.  67,  15  Am.  St.  Rep.  386,  22  N. 
E.  446. 

Followed  without  discussion  in  Stafford  v.  Morning  Journal  Asso.  68  Hun,  471, 
22  N.  Y.  Supp.  1008. 
Validity    of    contracts    or    deeds    of    lunatic. 

Cited  in  Carter  v.  Beck  with,  128  N.  Y.  316,  28  N.  E.  582,  holding  contract  of 
one  adjudged  a  lunatic,  absolutely  void;  Re  Lapham,  19  Misc.  75,  44  N.  Y.  Supp. 
90,  holding  contract  of  lunatic  before  inquisition,  but  within  period  covered  by 
findings  of  jury,  not  absolutely  void;  Ramsdell  v.  Ramsdell,  128  Mich.  116,  87 
N.  W.  81,  holding  deed  made  by  insane  person  in  lucid  interval  valid;  Blinn  v. 
Schwarz,  177  N.  Y.  260,  69  N.  E.  542,  sustaining  lunatic's  deed  ratified  after  re- 
gaining sanity;  O'Reilly  v.  Sweeney,  54  Misc.  409,  105  N.  Y.  Supp.  1033,  holding 
promise  to  marry  by  one  who  has  been  adjudged  insane,  is  invalid;  Re  Lapham, 
2  Gibbons,  Sur.  Rep.  184,  to  the  point  that  person  adjudicated  a  lunatic  cannot 
bind  himself  by  contract. 

Cited  in  notes    (19  L.R.A.  493)    on  validity  of  deed  made  by  insane  person; 
(42  Am.  St.  Rep.  753;  71  Am.  St.  Rep.  426;  6  Eng.  Rul.  Gas.  76)   on  validity 
of   contract  by   insane  person;    (16   Eng.  Rul.   Cas.   739,   741)    on  lunacy   dis- 
qualifying person  to  act  as  a  free  agent. 
Errors   considered   on   appeal. 

Cited  in  Wamsley  v.  Darragh,   14  Misc.   569,  35  N.  Y.   Supp.  1075,  holding 
relevancy  or  materiality  of  papers  offered  in  evidence  cannot  be  determined  on 
appeal  when  not  in  record. 
•Conclnsiveness  of  adjudication  as  to  sanity. 

Cited  in  Slaughter  v.  Heath,  127  Ga.  757,  27  L.R.A. (N.S.)  19,  57  S.  E.  69, 
holding  that  an  inquisition  and  return  that  a  person  sought  to  be  declared 
insane  was  not  so,  with  an  entry  confirming  same,  is  not  conclusive  evidence 
against  third  persons  who  were  not  parties  to  the  proceedings  although  notified 
as  next  of  kin;  Re  Van  Houten,  147  Iowa,  733,  140  Am.  St.  Rep.  340,  124  N. 
W.  886,  to  the  point  that  presumption  arising  from  adjudication  in  lunacy 
extends  to  all  persons  whether  they  had  notice  of  inquisition  or  not. 

Cited  in  note  (140  Am.  St.  Rep.  347,  348,  349,  354,  358)  on  adjudication 
•of  insanity  or  existence  of  guardianship  as  showing  incapacity  to  execute  con- 
tracts, make  wills,  etc. 


921  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  638 

Distinguished  in  R.  A.  Schoenberg  &  Co.  v.  Ulman,  51  Misc.  90,  99  N.  Y. 
Supp.  650,  holding  adjudication  that  person  had  been  insane  for  a  month  prior 
to  the  inquisition  was  not  conclusive  evidence  of  his  incapacity  to  sign  an  order 
as  referee  the  day  before;  Re  Preston,  113  App.  Div.  737,  99  N.  Y.  Supp.  312, 
holding  an  inquiry  in  lunacy,  which  finds  it  to  exist  at  time  prior  to  such 
inquiry,  is  not  conclusive  evidence  of  incapacity  at  that  prior  time. 
Res  jndicata. 

Cited  in  footnote  to  Allred  v.  Smith,  65  L.R.A.  924,  which  holds  judgment 
in  action  quasi  in  rem  binding  on  the  parties  only. 

5  L.  R.  A.  636,  WILLIS  v.  SHARP,  115  N.  Y.  396,  22  N.  E.  149. 
Liability  of  decedent's  estate  for  debts  contracted  by  executor. 

Cited  in  Willis  v.  Sharp,  124  N.  Y.  411,  26  N.  E.  974,  holding  person  selling 
goods  to  executor  continuing  business  of  testatrix,  .under  power  in  will,  not  en- 
titled to  payment  to  exclusion  of  creditors  of  testatrix;  Re  Stern,  2  Connoly,  205, 
9  N.  Y.  Supp.  445,  holding,  under  will  limiting  power  of  executor  in  continuing 
business  of  partnership  to  funds  already  invested,  person  subsequently  selling 
goods  to  firm  not  creditor  of  estate;  American  Surety  Co.  v.  McGuire,  54  Misc. 
80,  103  N.  Y.  Supp.  753,  on  the  rights  of  creditors  of  testator  against  estate 
of  executor  who  continued  the  business. 

Cited  in  note  (40  L.R.A.  (N.S.)  214)  on  personal  representative,  testamentary 
trustee,  or  guardian  carrying  on  business. 

5  L.  R.  A.  638,  LANDERS  v.  COOPER,  115  N.  Y.  279,  12  Am.  St.  Rep.  801,  22 

N.  E.  212. 
Conditions    in    policy. 

Cited  in  England  v.  Westchester  F.  Ins.  Co.  81  Wis.  591,  29  Am.  St.  Rep.  917, 
51  N.  W.  954,  holding  policy  made  void  by  premises  remaining  vacant  and  un- 
occupied for  ten  days;  Aetna  Ins.  Co.  v.  Holcomb,  89  Tex.  412,  34  S.  W.  915r 
holding  agent  of  insurance  company  not  required  to  inquire  as  to  encumbrances 
upon  application  for  insurance;  Mowry  v.  Agricultural  Ins.  Co.  64  Hun,  145, 
18  N.  Y.  Supp.  834,  holding  execution  of  second  mortgage,  in  place  of  first  mort- 
gage, which  was  known  to  agent,  not  increasing  amount  of  encumbrance,  did  not 
void  policy;  Arnold  v.  St.  Paul  F.  &  M.  Ins.  Co.  106  Tenn.  532,  61  S.  W.  1032, 
holding  additional  insurance  procured  by  owner  without  knowledge  of  prior  policy 
procured  by  agent  voided  latter;  Seibel  v.  Lebanon  Mut.  Ins.  Co.  16  Lane.  L.  Rev. 
357,  holding  further  insurance  effected  without  consent  of  insurer  voids  policy. 

Cited  in  note   (11  L.  R.  A.  345)   on  conditions  in  insurance  policy. 

Distinguished  in  Mead  v.  Saratoga  &  W.  F.  Ins.  Co.  81  App.  Div.  284,  80  N.  Y. 
Supp.  885,  holding  company  liable  on  policy  on  meat  market,  erroneously  contain- 
ing words  "while  occupied  as  dwelling." 
Estoppel    or    waiver    of   insnrer. 

Cited  in  Schuyler  v.  Phoenix  Ins.  Co.  56  Hun,  500,  10  N.  Y.  Supp.  205,  holding 
insurance  company  not  estopped  to  deny  liability  for  damage  by  ice  because  it 
took  possession  of  boat  so  damaged  for  benefit  of  all ;  Power  v.  Monitor  Ins.  Co. 
121  Mich.  366,  80  N.  W.  Ill  (dissenting  opinion),  majority  holding  waiver  of 
further  insurance  properly  submitted  to  jury. 

Cited  in  notes  (5  L.R.A.  646)  on  estoppel  of  company  by  fraud  of  its  agent; 
(2  L.R.A. (N.S.)  548)  on  effect  of  insurance  agent's  mistake  in  designating 
location  of  property;  (107  Am.  St.  Rep.  107)  on  waiver  of  provisions  of  non- 
waiver or  written  waiver  of  conditions  and  forfeitures  in  policies. 


5  L.R.A.  638]  L.  R.  A.  CASES  AS  AUTHORITIES.  922 

Effect    of    other    Insurance. 

Distinguished  in  De  Witt  v.  Agricultural  Ins.  Co.  89  Hun,  236,  36  N  Y.  Supp. 
570,  holding  purchaser  of  insured  property  not  the  "insured"  within  provision 
avoiding  policy   if   insured   procures   other   insurance,   though   mortgagee   subse- 
quently procures  indorsement  that  he  is  the  owner. 
Admissibility   of   parol   or   extrinsic   evidence   to   nffect   contract. 

Cited  in  Woodard  v.  Foster,  64  Hun,  148,  18  N.  Y.  Supp.  834,  holding  parol 
evidence  to  change  absolute  title  in  fee  conveyed  by  deed  to  life  estate  inadmissi- 
ble; Saunders  v.  Agricultural  Ins.  Co.  167  N.  Y.  268,  60  N.  E.  635,  holding  ap- 
plication with  diagram  sent  to  insurance  company  admissible  by  company  to 
show  what  was  intended  to  be  insured;  Mead  v.  American  F.  Ins.  Co.  13  App. 
Div.  481,  43  N.  Y.  Supp.  334,  holding  extrinsic  evidence  admissible  to  determine 
whether  other  insurance  means  policy  which  can  only  include  insured  property 
by  operation  of  law;  Providence  Washington  Ins.  Co.  v.  Board  of  Education,  49 
W.  Va.  377,  38  S.  E.  679,  holding  verbal  agreement  waiving  right  of  insurer  to 
repair  or  rebuild,  contained  in  agreement  of  submission,  inadmissible;  Martin  v. 
Farmers'  Ins.  Co.  84  Iowa,  519,  51  N.  W.  29,  holding  parol  evidence  that  policy 
was  intended  to  cover  property  destroyed,  but  by  mistake  described  other  prop- 
-erty,  inadmissible;  Myers  v.  Sea  Beach  R.  Co.  43  App.  Div.  576,  60  N.  Y.  Supp. 
284,  holding  parol  evidence  to  explain  property  included  in  lease  admissible; 
Harness  v.  Eastern  Oil  Co.  49  W.  Va.  248,  38  S.  E.  662,  holding  parol  evidence  to 
vary  terms  of  lease  not  admissible;  Dady  v.  O'Rourke,  172  N.  Y.  453,  65  N.  E. 
273,  denying  admissibility  of  parol  proof  of  intention  to  buy  and  sell  such  stock 
as  owner  possessed;  Dady  v.  O'Rourke,  172  N.  Y.  453,  65  N.  E.  273,  on  the 
admission  of  parol  evidence  to  affect  written  contract;  JEtna.  Ins.  Co.  v.  Brannon, 
99  Tex.  396,  2  L.R.A.(N.S.)  551,  89  S.  W.  1057,  13  A.  &  E.  Ann.  Cas.  1020, 
on  the  admissibility  of  parol  evidence  to  affect  policy  of  insurance. 

Cited  in  notes  (6  L.  R.  A.  41)  on  parol  evidence  to  explain  writing;  (6  L.  R, 
A.  33)  on  written  contracts  as  evidence;  (16  L.R.A.(N.S.)  1171,  1183,  1218) 
on  parol-evidence  rule  as  to  varying  or  contradicting  written  contracts,  as  af- 
fected by  doctrine  of  waiver  or  estoppel  as  applied  to  insurance  policies. 

5  L.  R.  A.  641,  CRAFT  v.  SOUTH  BOSTON  R.  CO.  150  Mass.  207,  22  N.  E.  920. 
Authority  of  corporate  officers  to  act  for  corporation. 

Cited  in  Taylor  v.  Sutherlin-Meade  Tobacco  Co.  107  Va.  793,  14  L.R.A.  ( N.S. ) 
1138,  60  S.  E.  132,  holding  that  officers  of  a  corporation  have  no  authority  to 
represent  the  company,  unless  given  expressly  or  by  necessary  implication; 
Newell  v.  Hadley,  206  Mass.  343,  29  L.R.A.(N.S.)  914,  92  N.  E.  507,  to  the 
point  that  corporation  is  not  liable  for  money  borrowed  by  treasurer  who  is 
defaulter  and  used  to  pay  debts  of  company  in  place  of  funds  he  misappro- 
priated. 
Corporations;  authority  of  officers  to  make  negotiable  paper. 

Cited  in  Merchants'  Nat.  Bank  v.  Citizens'  Gaslight  Co.  159  Mass.  508,  38  Am. 
St.  Rep.  453,  34  N.  E.  1083,  holding  treasurer  of  manufacturing  and  trading  cor- 
poration presumed  to  have  authority;  City  Electric  Street  R.  Co.  v.  First  Nat. 
Exch.  Bank,  62  Ark.  37,  31  L.  R.  A.  536,  54  Am.  St.  Rep.  282,  34  S.  W.  89,  holding 
authority  of  president  and  secretary  of  railroad  to  make  promissory  note  for 
company  not  presumed;  Jewett  v.  West  Somerville  Co-operative  Bank,  173  Mass. 
57,  73  Am.  St.  Rep.  259,  52  N.  E.  1085.  holding  treasurer  of  co-operative  bank 
without  authority  to  accept  order;  Helena  Nat.  Bank  v.  Rocky  Mountain  Teleg. 
€o.  20  Mont.  390,  63  Am.  St.  Rep.  628,  51  Pac.  829,  holding  authority  of  general 
manager  of  telegraph  company  not  implied;  Oak  Grove  &  S.  V.  Cattle  Co.  v. 


923  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A  043 

Foster,  7  N.  M.  661,  41  Pac.  522,  holding  treasurer  of  cattle  company  without 
implied  authority;  Edwards  v.  Carson  Water  Co.  21  Xev.  489,  34  Pac.  381,  holding 
note  in  name  of  water  company,  signed  by  president  and  secretary,  but  for  in- 
dividual debt  of  president,  not  corporate  act;  Alton  Mfg.  Co.  v.  Garrett  Biblical 
Institute,  148  111.  App.  29,  holding  treasurer  of  an  eleemosynary  corporation 
has  no  authority  to  issue  negotiable  paper  on  behalf  of  corporation;  Elkhart 
Hydraulic  Co.  v.  Turner,  170  Ind.  460,  84  N.  E.  812,  holding  president  of  a 
corporation  has  no  authority  to  sign  a  note  in  behalf  of  the  corporation  unless 
it  is  expressly  given  by  charter,  or  board  of  directors;  Peoples'  Nat.  Bank  v. 
New  England  Home,  209  Mass.  50,  95  N.  E.  77,  holding  that  president  and 
treasurer  of  charitable  corporation  have  no  power  to  make  note  in  name  and 
behalf  of  corporation;  Brown  v.  Newburyport,  209  Mass.  269,  95  N.  E.  504,  Ann. 
Cas.  1912B,  495,  holding  that  city  is  not  liable  on  note  issued  by  defaulting 
treasurer  in  name  of  city  though  money  obtained  is  used  to  cover  treasurer's 
defalcation. 

Distinguished  in  J.  G.  Brill  Co.  v.  Norton  &  T.  Street  R.  Co.  189  Macs.  437, 
2  L.R.A.(N.S.)    528,  75  N.  E.  1090,  holding  that  corporation  was  not  liable  on 
an  accommodation   indorsement  in  the  hands  of  a  bona  fide  purchaser,  though 
the  directors  and  a  majority  of  the  stockholders  authorized  it. 
Moneys  had  and  received. 

Cited  in  Mechanics  Bank  v.  Woodward,  74  Conn.  694,  51  Atl.  1084,  holding 
party  liable  to  refund  moneys  procured  by  agent  upon  forged  note  in  his  name, 
although  innocently  received;  Re  Greene,  55  App.  Div.  480,  67  N.  Y.  Supp.  291, 
holding  bank  not  entitled  to  set  off  overdrafts,  allowed  county  treasurer  to  cover 
up  defalcation,  against  obligation  for  moneys  wrongfully  loaned  bank  by  county ; 
Havens  v.  Bank  of  Tarboro,  132  N.  C.  222,  95  Am.  St.  Rep.  627,  43  S.  E.  639, 
holding  bank  liable  to  pledgee  of  cashier  who  fraudulently  issued  to  himself  cer- 
tificates signed  by  president  in  blank. 

Cited  in  footnotes  to  Soderberg  v.  King  County,  33  L.  R.  A.  670,  which  au- 
thorizes assumpsit  against  county  for  fees  erroneously  paid  by  sheriff  on  fore- 
closure sale;  Behring  v.  Somerville,  49  L.  R.  A.  578,  which  denies  right  of 
mortgagor,  compelled  to  pay  first  assignee,  to  recover  amount  previously  paid 
second  assignee  who  surrendered  mortgage. 

Cited    in   note    (15    L.R.A.  (N.S.)    696)    on   passive   acceptance   of  benefit   as 
ratification  of  agent's  unauthorized  use  of  third  person's  money. 
Liability  of  principal  for  unauthorized  loan  by  HU«-M  t. 

Cited  in  Foote  v.  Getting,  195  Mass.  61,  15  L.R.A. (N.S.)  697,  80  N.  E.  600, 
holding  that  owners  of  property  were  not  liable  for  the  unauthorized  appro- 
priation of  the  money  of  another  by  their  agent  in  charge  of  the  property,  to 
pay  the  taxes  thereon. 

5  L.  R.  A.  643,  HAYES  v.  PRESS  Co.  127  Pa.  642,  14  Am.  St.  Rep.  874,  18  Atl. 

331. 
Words     libelons    per    se. 

Cited  in  St.  James  Military  Academy  v.  Gaiser,  125  Mo.  525,  28  L.  R.  A. 
674,  46  Am.  St.  Rep.  502,  28  S.  W.  851,  holding  publication  which  must  neces- 
sarily injure  one  in  his  trade  or  profession  is  actionable,  without  proof  of 
special  damage;  Meas  v.  Johnson,  185  Pa.  17,  42  W.  N.  C.  298,  39  Atl.  562,  hold- 
in»  publication  that  one  is  "a  first-class  fraud,  and  of  the  first  water,"  is  li- 
belous  per  se;  Wood  v.  Boyle,  177  Pa.  630,  39  W.  N.  C.  131,  52  Am.  St.  Rep. 
747.  35  Atl.  853..  holding  publication  charging  manarrer  of  pipe  line  to  be  per- 
son "without  brains,  capital,  or  credit,"  with  having  failed  in  everything  he 
had  undertaken,  and  with  trying  to  steal  pipe  line  irorn  poor  producers,  is  libel- 


5  L.R.A.  643]  L.  R.  A.  CASES  AS  AUTHORITIES.  924 

ous  per  se;  Fred  v.  Traylor,  115  Ky.  99,  72  S.  W.  768,  holding  words  charging 
another  with  "beating  him  out  of  $1000  in  three  months,"  were  actionable  per 
se,  when  used  to  induce  another  to  deal  with  the  speaker. 

Cited  in  footnote  to  Dun  v.  Weintraub,  50  L.  R.  A.  670,  as  to  what  consti- 
tutes libel  of  merchant. 

Cited  in  notes   (49  L.  R.  A.  612)   on  blacklisting  dealer  as  libel;    (16  L.  R.  A. 
625)    on  libel  by   filing  lien;    (9  L.R.A.   621)    on  libel  and  slander   in  general; 
(15  Am.  St.  Rep.  347)    on  newspaper  libel;    (116  Am.  St.  Rep.  817)    on  what 
words  are  libelous  per  se. 
—  Doubtful  words  for  Jury  to  determine  meaning. 

Cited  in  Berger  v.  Freeman  Tribune  Pub.  Co.  132  Iowa,  293,  109  N.  W.  784; 
Hubbard  v.  Furman  University,  76  S.  C.  513,  57  S.  E.  478, — holding  that  if  the 
meaning  of  words  used  in  a  publication  is  doubtful,  the  question  whether  they 
are  libelous  is  for  the  jury. 
Privileged     publications. 

Cited  in  Shelly  v.  Dampman,  4  Pa.  Dist.  R.  497,  1  Lack.  Legal  News,  78, 
holding  privileged  publication  calling  place  "bawdy  house"  in  account  of  arrest 
for  adultery;  Good  v.  Grit  Pub.  Co.  36  Pa.  Super.  Ct.  253,  holding  report  of 
judicial  proceedings,  if  fairly  made,  are  privileged. 

Cited  in  footnotes  to  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged;  Billet  v.  Times- 
Democrat  Pub.  Co.  58  L.  R.  A.  62,  which  denies  privilege  as  to  publication  of 
reports  of  police  and  detective  officers  to  superiors;  Muetze  v.  Tuteur,  9  L.  R. 
A.  86,  which  holds  bad  debtors'  list  libelous,  and  not  privileged. 

Cited  in  notes   (13  L.R.A.  98)  on  fair  criticism  of  public  men  allowable;    (104 
Am.  St.  Rep.  133)  on  what  libelous  statements  are  privileged. 
Office    of    innuendo. 

Cited  in  Collins  v.  Despatch  Pub.  Co.  152  Pa.  191,  31  W.  N.  C.  320,  34  Am. 
St.  Rep.  636,  25  Atl.  546,  holding  proof  of  innuendo  not  necessary  when  words 
complained  of  are  defamatory  and  actionable  on  their  face. 
Effect    of    headlines    to    publication. 

Cited  in  Landon  v.  Watkins,  61  Minn.  142,  63  N.  W.  615,  holding  headlines 
may  render  publication  libelous  which  without  them  might  not  be  so;  Dorr  v. 
United  States,  195  U.  S.  152,  49  L.  ed.  134,  24  Sup.  Ct.  Rep.  808,  1  A.  &  E. 
Ann.  Cas.  697,  holding  headlines  to  report  of  judicial  proceedings  are  not  privi- 
leged, though  the  report  is;  Good  v.  Grit  Pub.  Co.  36  Pa.  Super.  Ct.  261,  holding 
that  whether  the  headlines  were  given  undue  prominence  was  a  question  for 
the  jury;  Miller  v.  State,  81  Ark.  362,  99  S.  W.  533,  holding  headline  a  part 
of  the  article,  but  may  itself  be  libelous;  Brown  v.  Knapp  &  Co.  213  Mo.  689, 
112  S.  W.  474,  holding  headlines  to  reports  of  judicial  proceedings  which  are 
comments  on  the  text,  are  not  privileged,  but  libelous  per  se,  if  they  charge 
crime. 
Publication  of  same  libel  by  other  parties  ns  defense. 

Cited  in  Palmer  v.  New  York  News  Pub.  Co.  31  App.  Div.  213,  52  N.  Y.  Supp. 
539,  holding  evidence  of  same  publication  in  other  newspapers,  against  which 
similar  actions  had  been  begun,  not  admissible  in  mitigation. 

Cited  in  footnotes  to  Morning  Journal  Asso.  v.  Rutherford,  16  L.  R.  A.  803, 
which  authorizes  punitive  damages  against  newspaper  reprinting  stories  of 
elopement,  without  inquiry;  Brewer  v.  Chase,  46  L.  R.  A.  397,  which  sustains 
liability  of  author  of  libelous  articles  stating  that  he  is  informed  that  certain 
things  have  occurred. 


925  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  646 

5  L.  R.  A.  646,  KISTER  v.  LEBANON  MUT.  INS.  CO.  128  Pa.  553,  16  Am.  St. 

Rep.    696,    18   Atl.   447. 
Conditions    in    policy. 

Cited  in  Moore  v.  Niagara  F.  Ins.  Co.  199  Pa.  53,  85  Am.  St.  Rep.  771,  48 
Atl.  869,  holding  recovery  cannot  be  had  on  policy  when  property  remained 
vacant  for  ten  days;  Georgia  Home  Ins.  Co.  v.  Stein,  72  Miss.  949,  18  So.  414, 
holding  policy  not  avoided  by  second  mortgage  on  insured  property  which  did 
not  increase  amount  of  encumbrance  at  date  of  policy;  German  Ins.  Co.  v. 
Everett,  18  Tex.  Civ.  App.  517,  46  S.  W.  95,  holding  knowledge  of  subagent  is 
notice  to  company  of  encumbrance  existing  on  issuance  of  policy;  Koshland  v. 
Home  Ins.  Co.  31  Or.  326,  49  Pac.  864  holding  mortgage  given  in  lieu  of  ex- 
isting encumbrance,  known  to  company,  does  not  void  policy;  Medley  v.  German 
Alliance  Ins.  Co.  55  W.  Va.  360,  47  S.  E.  101,  2  A.  &  E.  Ann.  Cas.  99,  on  the 
estoppel  of  a  company  by  the  acts  of  its  agent. 

Cited  in  notes  (20  L.  R,  A.  400)  on  effect  of  condition  against  encumbrance 
on  renewal,  substitution,  or  alteration  of  encumbrance  on  insured  property; 
(8  L.  R.  A.  73)  on  breach  of  condition  in  policy  as  to  encumbrances. 

Distinguished  in  Rinker  v.  ^Etna  L.  Ins.  Co.  214  Pa.  612,  112  Am.  St.  Rep. 
773,  64  Atl.  82,  15  Pa.  Dist.  R.  78,  holding  where  the  insured  had  stated  to  the 
agent  that  she  had  undergone  a  severe  surgical  operation,  and  he  answered  the 
question  in  the  application  that  she  had  not,  and  she  signed  the  application 
without  reading  the  same,  the  company  was  not  estopped. 

Company     estopped     by     acts     of     agent. 

Cited  in  McElroy  v.  British  America  Assur.  Co.  36  C.  C.  A.  625,  94  Fed. 
1000,  holding  insured  not  prejudiced  by  mistake  or  fraud  of  insurance  agent  in 
not  writing  contract  according  to  information  furnished  by  insured;  Bernard 
v.  United  L.  Ins.  Co.  17  Misc.  119,  39  N.  Y.  Supp.  356,  holding  stipulation 
that  one  taking  application  shall  be  regarded  as  agent  of  insured  does  not 
apply  to  one  acting  within  scope  of  authority  previously  conferred;  Gould  v. 
Dwelling-House  Ins.  Co.  134  Pa.  590,  26  W.  N.  C.  168,  19  Am.  St.  Rep. 
717,  19  Atl.  793,  holding  policy  issued  with  knowledge  of  encumbrances,  which 
though  changed  were  not  added  to,  valid;  Supreme  Lodge  K.  of  P.  v.  Withers, 
177  U.  S.  271,  44  L.  ed.  767,  20  Sup.  Ct.  Rep.  611,  holding  insured  not  respon- 
sible for  failure  of  secretary  of  local  branch  to  remit  dues  to  supreme  lodge; 
Murphy  v.  Independent  Order  of  S.  &  D.  of  I.  of  A.  77  Miss.  841,  50  L.  R.  A. 
117,  27  So.  624,  holding  subordinate  lodges  agents  of  grand  lodge  of  benefit 
society  in  respect  to  collection  of  assessments;  Dowling  v.  Merchants  Ins.  Co. 
168  Pa.  239,  31  Atl.  1087,  holding  insurance  company  bound  by  policy  issued  by 
its  agent  with  misdescription  not  read  to  insured;  Reed  v.  Equitable  F.  &  M. 
Ins.  Co.  17  R.  I.  788,  18  L.  R.  A.  498,  24  Atl.  833,  holding  information-  supplied 
agent  of  company  of  existence  of  prior  policy  does  not  waive  condition  as  to 
other  insurance;  Given  v.  Rettew.  162  Pa.  643,  29  Atl.  703,  holding  receiver 
of  mutual  insurance  company  cannot  change  nonassessable  into  assessable  pol- 
icy; Meyers  v.  Lebanon  Mut.  Ins.  Co.  33  W.  N.  C.  36,  holding  company  bound 
Tjy  agent's  acceptance  of  unresponsive  answer  as  to  how  much  remains  un- 
insured; Mullen  v.  Union  Cent.  L.  Ins.  Co.  7  Kulp,  424,  denying  policy  avoided 
by  agent's  incorrectly  writing  answers  by  applicant;  Carnes  v.  Farmers'  F. 
Ins.  Co.  20  Pa.  Super.  Ct.  641,  holding  agent's  omission  of  name  of  one  in- 
sured does  not  avoid  policy;  Zimmer  v.  Central  Acci.  Ins.  Co.  207  Pa.  478,  56  Atl. 
1003,  holding  policy  not  voided  by  agent's  failure  to  attach  correct  copy  of 
application;  Gwaltney  v.  Provident  Sav.  Life  Assur.  Soc.  132  N.  C.  928,  44  S. 
E.  659,  holding  company  estopped  to  object  to  parol  evidence  by  agent's  delivery 
of  policy  fraudulently  executed,  different  from  agreement;  McMaster  v.  New 


5  L.R.A.  646]  L.  R.  A.  CASES  AS  AUTHORITIES.  926 

York  L.  Ins.  Co.  40  C.  C.  A.  146,  99  Fed.  884  (dissenting  opinion),  majority 
holding  that  parol  agreement  with  agent  cannot  alter  terms  of  policy;  Robinson 
v.  Roberts,  20  Okla.  800,  95  Pac.  246,  on  the  estoppel  of  the  principal  by  the 
fraud  of  the  agent;  Penn  Furniture  Co.  v.  Liberty  Mut.  F.  Ins.  Co.  57  Pittsb, 
L.  J.  486,  to  the  point  that  parol  evidence  is  admissible  to  correct  incorrect 
statement  in  application  made  through  agent's  mistake. 

Cited  in  notes  (5  L.  R.  A.  638)  on  insurance  contract  cannot  be  varied  in 
its  terms;  (6  L.  R.  A.  45)  on  parol  evidence  as  to  written  contract;  (7 
L.  R.  A.  218,  219)  on  responsibility  of  insurance  company  for  acts  of  its 
agent;  (16  L.  R.  A.  36)  on  effect  of  knowledge  by  insurer's  agent  of  falsity 
of  statements  in  application;  (67  -L.R.A.  733,  737)  on  retention  of  policy  as 
waiver  of  mistake  or  fraud  of  insurer  or  its  agent;  (4  L.R.A. (N.S.)  608)  on 
effect  of  agent's  insertion  in  application  of  false  answers  to  questions  correctly 
answered  by  insured;  (16  L.R.A. (N.S.)  1210,  1212)  on  parol-evidence  rule  as 
to  varying  or  contracting  written  contracts,  as  affected  by  doctrine  of  waiver  or 
estoppel  as  applied  to  insurance  policies;  (107  Am.  St.  Rep.  110)  on  waiver 
of  provisions  of  nonwaiver  or  written  waiver  of  conditions  and  forfeitures  in 
policies. 

Distinguished  in  Sitler  v.  Spring  Garden  Mut.  F.  Ins.  Co.  18  Pa.  Super.  Ct. 
144,  holding  notice  of  encumbrance  to  agent  as  secretary  of  loan  association  not 
notice  to  him  as  agent  of  insurance  company. 

5  L.  R.  A.  649,  BOULTON  CARBON  CO.  v.  MILLS,  78  Iowa,  460,  43  N.  W.  290. 
Stockholder's  liability. 

Cited  in  footnote  to  Rider  v.  Fritchey,  15  L.  R.  A.  513,  which  holds  stock- 
holder assigning  to  insolvent  person  not  relieved  from  liability. 

Cited   in   note    (30  L.R.A.(N.S.)    285)    on   liability  of   transferee  on   unpaid 
stock  subscription. 
When    property   overvalued. 

Cited  in  Stout  v.  Hubbell,  104  Iowa,  503,  73  N.  W.  1060,  holding  mere  is- 
suance of  stock  as  full  paid  in  payment  of  overvalued  property,  no  defense  in  ac- 
tion by  creditors;  Gilkie  &  A.  Co.  v.  Dawson  Town  &  Gas  Co.  46  Neb.  350,  64 
N.  W.  978,  McClure  v.  Paducah  Iron  Co.  90  Mo.  App.  585;  State  Trust  Co.  v. 
Turner,  111  Iowa,  671,  53  L.  R.  A.  139,  82  N.  W.  1029,  —  holding  stockholder 
liable  to  creditors  for  difference  between  actual  and  pretended  value  of  prop- 
erty for  which  his  stock  was  received;  Van  Cleve  v.  Berkey,  143  Mo.  119,  42 
L.  R.  A.  597,  44  S.  W.  743,  holding  purchaser  of  stock  with  notice  of  issuance 
for  worthless  invention  liable  to  creditors  for  unpaid  subscription,  notwith- 
standing belief  in  value  of  property;  Peninsular  Sav.  Bank  v.  Black  Flag  Stove 
Polish  Co.  105  Mich.  538,  63  N.  W.  514,  holding  stockholder  liable  for  sub- 
scription for  stock  issued  full  paid  in  consideration  of  services  which  took  no 
time  from  regular  employment;  Wishard  v.  Hansen,  99  Iowa,  311,  61  Am.  St. 
Rep.  238,  68  N.  W.  691,  holding  one  receiving  stock  for  grossly  overvalued  con- 
sideration liable  on  corporation's  indebtedness  existing  before  his  transfer  of 
holdings  to  insolvent  assignee;  Re  Royce  Dry  Goods  Co.  133  Fed.  103,  holding 
under  the  law  of  Missouri,  which  permits  a  subscriber  to  stock  of  a  corporation 
to  pay  his  subscription  in  property  other  than  money,  provided  it  is  of  the 
reasonable  value  of  the  subscription,  but  makes  him  subject  to  strict  inquiry 
as  to  such  value  and  liable  for  any  unreasonable  discrepancy,  a  trustee  for  a 
bankrupt  corporation  may  interpose  as  a  set  off  to  the  claim  of  a  stockholder 
a  claim  against  him  for  the  difference  between  value  of  property  turned  over  by 
him  in  payment  for  his  stock  and  the  nominal  value  of  the  stock. 

Cited  in  footnotes  to  Elyton  Land  Co.  v.  Birmingham  Warehouse  &  Elevator 


°27  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  652 

Co.    12   L.   R.   A.   307,  which   holds   subscribers   liable  to  creditors   where   stock 
paid  for  by  conveyance  of  land  worth  only  amount  assumed  by  corporation. 

Cited  in  note  (42  L.  R.  A.  621)  as  to  how  far  the  payment  for  stock  in  a 
corporation  by  a  transfer  of  property  will  protect  the  shareholder  against  cred- 
itors of  the  company. 

Distinguished  in  Clark  v.  Bever,  139  U.  S.  117,  35  L.  ed.  97,  11  Sup.  Ct.  Rep. 
468,    holding    member    of    construction    company    receiving    payment    in    worth- 
less railway  stock  at  20  per  cent  of  par  not  liable  under  Iowa  statute  to  cred- 
itors  for   remaining   80   per   cent. 
Capital    stock   as   trust    fond. 

Cited  in  footnotes  to  O'Bear  Jewelry  Co.  v.  Volfer,  28  L.  R.  A.  707,  which 
holds  property  of  insolvent  corporation  not  trust  fund  except  for  administration 
for  equal  benefit  of  creditors;  Hospes  v.  Northwestern  Mfg.  &  Car  Co.  15  L. 
R.  A.  470,  which  holds  creditor's  right  to  compel  payment  for  bonus  stock  does 
not  rest  on  trust-fund  doctrine. 
Stockholder's  set-off. 

Cited  in  Colorado  Fuel  &  Iron  Co.  v.  Sedalia  Smelting  Co.  13  Colo.  App.  479, 
59  Pac.  222,  and  Tama  Water-Power  Co.  v.  Hopkins,  79  Iowa,  657,  44  N.  W. 
797,  holding  stockholder  cannot  offset  debts  due  from  company  against  liabil- 
ity to  creditors  for  unpaid  stock;  Bausman  v.  Kinnear,  24  C.  C.  A.  475,  48  U. 
S.  App.  312,  79  Fed.  174,  holding  stockholder  cannot  set  off  debt  from  corpora- 
tion as  against  unpaid  subscription,  after  insolvency  and  suit  to  wind  up. 
Remedy  by  action  against  stockholder. 

Cited  in  National  Park  Bank  v.  Peavey,  64  Fed.  922,  holding  judgment  debt- 
or has  remedy  at  law  to  enforce  stockholder's  statutory  liability  for  corpora- 
tion's judgment  debt  to  extent  of  unpaid  subscription. 

5  L.  R.  A.  652,  KELLY  NAIL  &  IRON  CO.  v.  LAWRENCE  FURNACE  CO.  46 

Ohio   St.   544,   22   N.   E.   639. 
Abandonment    of    public    highways. 

Cited  in  Western  v.  Ralston,  48  W.  Va.  184,  36  S.  E.  446,  holding  abandon- 
ment of  public  street  not  implied,  and  statute  of  limitations  does  not  run 
against  easement  in  public  street;  Lake  Shore  &  M.  S.  R.  Co.  v.  Cleveland,  1 
Ohio  X.  P.  39,  holding  nonuser  of  street  showed  abandonment;  Cleveland  Ter- 
minal &  V.  Ry.  v.  Akron  (City)  6  Ohio  N.  P.  N.  S.  96,  18  Ohio  S.  &  C.  P.  Dec. 
244,  holding  that  city  has  no  power  to  vacate  a  county  road  within  its  limits: 
Morehouse  v.  Burgot,  22  Ohio  C.  C.  178,  12  Ohio  C.  D.  355,  holding  road  not 
abandoned  by  nonuser;  Tudor  Boiler  Mfg.  Co.  v.  Greenwald  Co.  5  Ohio  C.  C. 
N.  S.  39,  26  Ohio  C.  C.  559,  on  abandonment  of  easement  by  nonuser  as  depend- 
ing upon  surrounding  circumstances;  Lowe  v.  East  Sioux  Falls  Quarry  Co.  25 
S.  D.  398,  126  N.  W.  609,  holding  that  fact  that  more  convenient  road  has  been 
used  is  insufficient  to  show  abandonment  of  established  highway. 

Cited  in  notes  (18  L.  R.  A.  542)  on  effect  of  nonuser  of  easement;  (26  L.  R. 
A.  453)  on  abandonment  of  highway  by  nonuser  or  otherwise  than  by  act  of 
public  authorities;  (9  L.  R.  A.  95)  on  highway;  right  of  public  to  use  of  its 
entire  width;  (12  Eng.  Rul.  Cas.  629;  14  Am.  St.  Rep.  282)  on  extinguishment 
of  highway  and  other  easements  by  nonuser  or  adverse  possession. 
Statute  of  limitations. 

Cited  in  Fries  v.  Wheeling  &  L.  E.  R.  Co.  56  Ohio  St.  146,  46  N.  E.  516. 
holding  demurrer  setting  up  statute  of  limitations  to  claim  for  compensation 
for  land  taken  by  railway,  not  well  taken. 


5  L.R.A.  654]  L.  R.  A.  CASES  AS  AUTHORITIES.  928 

5  L.  R.  A.  654,  MOORE  v.  WILLIAMS,   115  N.  Y.  586,   12  Am.  St.  Rep.  844, 

22   N.   E.   233. 
Good    and    marketable    title. 

Cited  in  Brokaw  v.  Duffy,  165  N.  Y.  399,  59  N.  E.  196,  holding  title  not 
marketable  where  lunacy  proceedings  against  vendor's  grantor  are  threatened, 
and  there  is  sufficient  evidence  to  raise  reasonable  doubt  of  his  sanity;  Droge 
v.  Cree,  27  Jones  &  S.  277,  14  N.  Y.  Supp.  300,  holding  vendee  entitled  to 
rescind  sale  by  party  claiming  title  under  deed  by  executors  against  parties 
in  provision  under  unrecorded  conveyances  by  testator;  Simon  v.  Vanderveer, 
155  N.  Y.  381,  63  Am.  St.  Rep.  683,  49  N.  E.  1043,  holding  existence  of  action 
and  Us  pendens  sufficient  to  support  rescission  by  vendee  and  recovery  of 
part  payment,  irrespective  of  validity  of  cause  of  action;  Priessenger  v.  Sharp, 
27  Jones  &  S.  316,  14  N.  Y.  Supp.  372,  holding  vendee  entitled  to  rescind  pur- 
chase from  trustee  claiming  title  under  sale  of  trust  property  to  himself  in 
violation  of  statute;  Zorn  v.  McParland,  8  Misc.  130,  28  N.  Y.  Supp.  485,  hold- 
ing vendee  entitled  to  rescind  where  outstanding  mortgage  of  record  though  in 
fact  satisfied,  but  record  of  satisfaction  refused  by  reason  of  clerical  error  in 
names;  Ingalls  v.  Halm,  36  N.  Y.  S.  R.  772,  12  N.  Y.  Supp.  786,  holding 
vendee  may  rescind  sale  by  party  holding  record  title  as  trustee,  where  deed 
tendered  recites  that  vendor  is  not  trustee  but  owner  in  his  own  right,  though 
executed  both  as  trustee  and  individual  right;  Kountze  v.  Helmuth,  67  Hun. 
347,  22  N.  Y.  Supp.  204,  holding  vendee  entitled  to  rescind  where  vendor's  ti- 
tle is  subject  to  restrictive  building  covenants  running  with  the  land;  Har- 
rass  v.  Edwards,  94  Wis.  464,  69  N.  W.  69,  holding  vendee  entitled  to  rescind 
where  deed  offered  by  grantor  of  doubtful  validity  by  reason  of  insufficiency 
of  attestation  to  grantor's  signature;  Emens  v.  St.  John,  79  Hun,  102,  29  X. 
Y.  Supp.  655,  holding  agent  to  exchange  realty  not  entitled  to  commissions 
where  property  offered  by  him  not  marketable  by  reason  of  question  as  to  au- 
thority of  executor  to  exercise  power  of  sale  after  election  of  devisees  to  take 
under  will;  Warren  v.  Banning,  50  N.  Y.  S.  R.  812,  21  N.  Y.  Supp.  883,  hold- 
ing vendee  entitled  to  rescind  where  vendor  failed  to  disclose  that  his  right  as 
executor  to  sell  was  involved  in  litigation  at  time  of  sale;  Weinstock  v.  Levi- 
son,  26  Abb.  N.  C.  245,  20  Civ.  Proc.  Rep.  1,  37  N.  Y.  S.  R.  561,  14  N.  Y.  Supp. 
64,  holding  vendee  entitled  to  rescind  where  title  of  vendor  was  derived  under 
infancy  proceeding,  validity  of  which  is  questionable;  Moskowitz  v.  Horn- 
berger,  20  Misc.  563,  46  N.  Y.  Supp.  462,  holding  title  acquired  through  cor- 
porate grantor  taking  in  excess  of  power,  marketable  where  neither  state  nor 
heirs  attacked  same  during  fifteen  years;  Reynolds  v.  Strong,  82  Hun,  207,  31 
N.  Y.  Supp.  329,  holding  vendee  entitled  to  rescind  where  validity  of  vendor's 
title  dependent  upon  undecided  question  whether  wife  accepted  provision  of 
husband's  will  in  lieu  of  dower;  Marshall  v.  Wenninger,  20  Misc.  530,  46  N.  Y. 
Supp.  670,  holding  vendee  entitled  to  rescind  where  title  of  vendor  rests  on 
deed  conveying  by  reference  to  chart  which  shows  dedication  of  part  for  high- 
way, though  evidence  discloses  nonuser  for  twenty-five  years;  Miner  v.  Hilton, 
15  App.  Div.  59,  44  N.  Y.  Supp.  155,  holding  vendee  entitled  to  rescind 
where  building  bought  encroached  2y2  miles  on  adjoining  lot,  to  which  vendor 
could  not  give  title,  though  there  was  evidence  of  occupancy  for  a  statutory 
period;  Snow  v.  Monk,  81  App.  Div.  210,  80  N.  Y.  Supp.  719,  holding  that 
2-inch  encroachment  of  wall  renders  premises  unmarketable ;  Zunker  v.  Kuehn, 
113  Wis.  424,  88  N.  W.  605,  holding  party  entitled  to  rescind  contract  for  ex- 
change of  land  requiring  "record  title,"  where  title  offered  by  other  party 
rests  partly  upon  adverse  possession ;  Hamershlag  v.  Duryea,  38  App.  Div.  132, 
56  N.  Y.  Supp.  615,  holding  vendee  entitled  to  rescind  where  vendor's  ti- 


L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  654 

tie  dependent  upon  adverse  possession  under  conveyance  of  whole  title  by 
tenant  in  common,  but  evidenced  by  no  act  of  ownership  inconsistent  with 
cotenancy  by  another;  Ruess  v.  Ewen,  34  App.  Div.  486,  54  N.  Y.  Supp.  357, 
holding  vendee  entitled  to  rescind  where  vendor's  title  dependent  upon  adverse 
possession  after  expiration  of  lease,  to  support  which  parol  evidence,  subject  to 
contradiction,  is  necessary;  Weinstein  v.  Weber,  178  N.  Y.  101,  70  X.  E.  115, 
holding  purchaser  not  required  to  take  title  dependent  upon  parol  evidence 
for  completeness;  Home  v.  Rodgers,  113  Ga.  227,  38  S.  E.  768,  holding  vendee 
entitled  to  such  title  as  a  reasonably  prudent  person  would  accept,  under  agree- 
ment for  "good  and  sufficient  warranty  deed  in  fee  simple,"  Weil  v.  Radley, 
31  App.  Div.  27,  52  N.  Y.  Supp.  398,  holding  vendee  not  entitled  to  rescind 
for  lack  of  record  title  to  strip  of  land  covered  by  building,  where  actual 
title  thereto  is  in  vendor  by  adverse  possession  for  statutory  period;  Schenck 
v.  Wicks,  23  Utah,  583,  65  Pac.  732,  holding  vendee's  interest  in  land,  subject 
of  sale,  not  lost  by  default  in  payment  of  purchase  money  notes  where,  before 
maturity,  vendor  has  mortgaged  land  to  third  party;  Turner  v.  Walker,  40 
Misc.  380,  82  N.  Y.  Supp.  340,  holding  that  easement  for  railroad  right 
of  way  renders  title  unmarketable;  Bash  v.  Cascade  Min.  Co.  29  Wash.  55,  70 
Pac.  487,  holding  that  contract  to  convey  mining  claim  by  "sufficient  deed  in 
fee  simple"  means  what  title  vendor  has,  vendee  knowing  condition  of  title; 
Jay  v.  Wilson,  91  Hun,  396,  36  N.  Y.  Supp.  186  (dissenting  opinion),  majority 
holding  vendee  not  entitled  to  rescind  where  record  title  clear,  though  deed 
outstanding  antedating,  but  not  recorded  until  after,  that  under  which  vendor 
claims;  Reed  v.  Sefton,  11  Cal.  App.  91,  103  Pac.  1095,  holding  a  covenant  or 
contract  for  a  perfect  title  requires  the  tender  of  a  title  free  from  litigation 
palpable  defects  and  grave  doubts  and  should  consist  of  both  legal  and  equitable 
titles  and  is  fairly  deducible  from  the  record;  Eagan  v.  Hook,  134  Iowa,  385, 
105  X.  W.  155,  holding  where  a  contract  for  the  sale  of  land  provided  for  a 
conveyance  "by  warranty  deed  with  abstract  showing  good  title,"  a  title  by 
adverse  possession  which  could  not  be  shown  by  the  abstract,  was  not  sufficient 
even  though  such  title  was  in  fact  good;  Williams  v.  Bricker,  83  Kan.  56,  30 
L.R.A. (X.S.)  345,  109  Pac.  998,  to  the  point  that  same  grounds  which  would 
justify  specific  performance  will  support  judgment  to  recover  back  purchase 
money;  Empire  Realty  Corp.  v.  Sayre,  107  App.  Div.  418,  95  X.  Y.  Supp.  371; 
Howe  v.  Coates,  97  Minn.  398,  4  L.R.A. (X.S.)  1178,  114  Am.  St.  Rep.  723,  107 
X.  W.  397, — holding  a  marketable  title  means  a  title  free  from  reasonable  doubt; 
Moulton  v.  Kolodzik,  97  Minn.  429,  107  N.  W.  154,  7  A.  &  E.  Ann.  Cas.  1090, 
holding  where  lis  pendens  concerning  the  land  involved  has  been  filed  and  an 
action  commenced  the  title  is  prima  facie  unmarketable;  Ladd  v.  Weiskopf,  62 
Minn.  37,  69  L.R.A.  789,  64  X.  W.  99,  holding  a  doubt  as  to  the  construction 
of  a  decree  of  distribution  by  a  probate  court,  which  is  conclusive  upon  all 
parties  interested  in  the  estate,  will  not  render  title  unmarketable;  Justice  v. 
Button,  89  Xeb.  369,  38  L.R.A. (X.S.)  5,  131  N.  W.  736,  holding  that  upon 
sale  of  land  implied  agreement  for  good  title  exists  unless  contract  relieves 
vendor  from  that  obligation;  Moran  v.  Stader,  52  Misc.  387,  103  X.  Y.  Supp. 
175,  holding  purchaser  not  obliged  to  take  title  which  can  be  cured  only  by 
parol  evidence;  Snow  v.  Monk,  81  App.  Div.  210,  80  X.  Y.  Supp.  719,  holding 
where  building  contracted  to  be  sold  encroached  on  the  property  of  another 
for  two  inches  the  vendee  was  not  obliged  to  take  the  title;  Turner  v.  Walker, 
40  Misc.  380,  82  X.  Y.  Supp.  340,  holding  in  the  absence  of  any  language  to  the 
contrary  in  an  executory  contract  for  sale  of  lands,  the  law  implies  a  right  in 
the  vendee  to  receive  a  good  title  free  from  encumbrances  and  defects;  Brokaw 
v.  Duffy.  31  X.  Y.  Civ.  Proc.  Rep.  3o7,  holding  the  distinction  which  once  pre- 
L.R.A.  Au.  Vol.  I.— 59. 


5  L.R.A.  654]  L.  R.  A.  CASES  AS  AUTHORITIES.  930 

vailed  as  to  marketable  titles  between  courts  of  law  and  equity  no  longer  exists, 
and  an  action  at  law  by  vendee  to  recover  back  purchase  money  paid,  may  be 
based  upon  the  same  ground  that  would  justify  a  court  of  equity  in  refusing 
to  compel  him  to  accept  the  title;  Classman  v.  Condon,  2T  Utah,  467,  76  Pac. 
343,  holding  a  vendor  before  he  can  compel  payment  of  the  price  or  any  part 
thereof  under  a  contract  of  purchase  obligating  him  to  furnish  a  good  title  or 
warranty  deed  must  make  a  tender  of  a  title  free  from  encumbrances,  unless 
the  contract  by  its  terms  or  circumstances  leading  up  to  the  transaction  shows 
that  the  parties  intended  that  the  sale  should  be  made  subject  to  the  defects  in 
the  title. 

Cited  in  footnote  to  Rife  v.  Lybarger,  17  L.  R.  A.  403,  which  holds  vendor 
bound  to  tender  only  marketable  title  in  absence  of  stipulation. 

Cited  in  notes  (12  L.R.A.  246)  on  rights  and  remedies  of  vendee;  (20  Am. 
St.  Rep.  217)  on  purchaser's  duty  as  to  taking  defective  title;  (132  Am.  St. 
Rep.  991,  992,  994;  38  L.R.A.  (N.S.)  4,  7,  31)  on  what  is  a  marketable  title. 

Distinguished  in  Ladd  v.  Weiskopf,  62  Minn.  37,  64  N.  W.  99,  holding  vendee 
not  entitled  to  rescind  where  only  defect  is  doubt  as  to  construction  of  probate 
court's  decree,  determinable  finally  by  court;  Blanck  v.  Sadlier,  153  N.  Y.  556T 
40  L.  R.  A.  668,  47  N.  E.  920,  holding  purchaser  at  auction  sale  subject  to  out- 
standing mortgage  not  entitled  to  repudiate  to  recover  back  deposit  and  expenses 
on  ground  that  mortgage  payable  only  in  gold;  Greenblatt  v.  Hermann,  144  N.  Y. 
20,  38  N.  E.  966,  holding  mere  possibility  of  heirs  not  joined  in  conveyance  in- 
sufficient to  render  title  unmarketable  and  warrant  recovery  of  partial  payments 
by  vendee;  Duluth  Loan  &  Land  Co.  v.  Klovdahl,  55  Minn.  343,  56  N.  W.  1119, 
holding  vendee  not  entitled  to  abandon  on  ground  of  encumbrance,  if  same  re- 
movable by  solvent  vendor  before  time  for  execution  of  deed;  Darrow  v.  Cornell, 
30  App.  Div.  119,  51  N.  Y.  Supp.  828,  holding  vendee  not  entitled  to  damages  for 
breach  of  contract  of  sale  where  no  tender  and  demand  for  performance  made  at 
date  for  completion  of  sale;  Duncan  v.  Gisborn^  17  Utah,  211,  53  Pac.  1044, 
holding  vendee  barred  by  statute  of  limitations  where  action  to  recover  partial 
payments  not  brought  within  statutory  period  after  failure  of  vendor  to  furnish 
required  title. 
—  In  equity. 

Cited  in  Irving  v.  Campbell,  121  N.  Y.  357,  8  L.  R.  A.  621,  24  N.  E.  821,  hold- 
ing vendor  not  entitled  to  specific  performance  of  sale  where  deed  under  which 
he  claimed  was  not  entitled  to  record  by  reason  of  insufficient  acknowledgment; 
Taylor  v.  Chamberlain,  6  App.  Div.  39,  39  N.  Y.  Supp.  737,  holding  vendor  can- 
not specifically  enforce  sale  where  title  dependent  upon  purchase  in  probate  pro- 
ceedings, valid  only  under  certain  circumstances  not  shown  by  deed  to  exist; 
Aldrich  v.  Bailey,  28  N.  Y.  S.  R.  573,  8  N.  Y.  Supp.  435,  holding  vendor  not  en- 
titled to  specific  performance  of  sale  contract  where  title  attacked,  prior  to  sale, 
by  heirs  of  former  owner  on  ground  that  deed  by  latter  void  for  incapacity  to 
execute  conveyance;  Vought  v.  Williams,  120  N.  Y.  257,  8  L.  R.  A.  592,  17  Am. 
St.  Rep.  634,  24  N.  E.  195,  holding  vendor  not  entitled  to  specific  performance 
where  plaintiff's  grantors  claim  title  under  deed  from  heirs  at  law  of  prior  owner, 
but  fail  to  show  conveyance  of  interest  of  one  who  had  disappeared  many  years 
before  and  had  not  been  heard  of  since;  Heller  v.  Cohen,  15  Misc.  384,  36  N.  Y. 
Supp.  668,  holding  vendor  not  entitled  to  specific  performance  where  deed  on 
partition  sale  under  which  he  claimed,  changed  former  description  by  beginning 
at  different  corner  of  intersection  of  streets,  and  portion  of  property  was  claimed 
only  by  adverse  possession;  Davis  v.  Watson,  89  Mo.  App.  25,  holding  vendor's 
petition  to  enforce  sale  of  interest  in  land  insufficient  where  no  averment  of 
good  and  sufficient  title,  though  deed  tendered;  Giltner  v.  Rayl,  93  Iowa,  19, 


931  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  659 

61  N.  W.  225,  holding  vendee  not  entitled  to  specific  performace  after  abandon- 
ment for  failure  of  vendor  to  secure  quitclaim  deed  demanded  to  perfect  title; 
Scidelbach  v.  Knaggs,  44  App.  Div.  172,  60  N.  Y.  Supp.  774  (dissenting  opinion), 
majority  holding  vendor  entitled  to  specific  performance  where  his  title  derived 
from  beneficiaries  in  dry  trust  though  trustee  did  not  join. 

Distinguished  in  Frain  v.  Klein,  18  App.  Div.  66,  79  N.  Y.  S.  R.  395,  45 
N.  Y.  Supp.  394,  decreeing  specific  performance  of  sale,  and  ordering  payment 
of  lien  out  of  purchase  money,  where  only  defense  is  existence  of  lien;  Haffey  v. 
Lynch,  143  N.  Y.  247,  38  N.  3.  298,  holding  vendee  at  auction  sale  under  con- 
tract  for  full  warranty  deed  may,  in  suit  for  specific  performance,  compel  vendor 
to  remove  lien  of  ejectment  suit  filed  after  sale;  Cambrelleng  v.  Purton,  125 
N.  Y.  616,  26  N.  E.  907,  compelling  purchaser  at  judicial  sale  in  partition  pro- 
ceedings to  take  title,  where  only  defect  was  failure  to  join  as  heir  son  who  had 
long  ago  disappeared  and  upon  whose  estate  administration  had  issue;  Sloane  v. 
Martin,  77  Hun,  252,  24  N.  Y.  Supp.  663,  decreeing  specific  performance  of  sale 
where  only  defect  is  failure  to  show  service  of  subpoena  on  infants  in  proceeding 
against  them  by  guardian  ad  litem,  in  absence  of  evidence  to  prove  that  service 
was  not  made;  Kullman  v.  Cox,  26  App.  Div.  160,  49  N.  Y.  Supp.  908,  holding 
vendor  entitled  to  specific  performance  of  sale  where  title  acquired  from  pur- 
chaser on  foreclosure  of  mortgage  on  property  held  by  vendor  as  tenant  by  curtesy, 
no  collusion  to  defeat  wife's  heirs  being  shown;  Godding  v.  Decker,  3  Colo.  App. 
203,  32  Pac.  832,  holding  vendor  of  government  land  entitled  to  specific  perform- 
ance of  sale  although  he  holds  but  final  receipt,  and  not  patent  for  land. 
Rescission  of  contract  for  sale  of  land. 

Cited  in  Miller  v.  Shelburn,  15  N.  D.  187,  107  N.  W.  51,  holding  rescission 
may  be  affected  by  act  of  a  party  thereto  when  the  consideration  for  the  con- 
tract has  wholly  or  partially  failed  through  fault  of  other  party. 

5  L.  R.  A.  659,  DIXON  v.  WHITE  SEWING  MACH.  CO.  128  Pa.  397,  15  Am. 

St.  Rep.  683,  18  Atl.  502. 
"When    action    of    trespass    will    lie. 

Cited  in  Kitchen  v.  McCloskey,  150  Pa.  383,  30  W.  N.  C.  484,  30  Am.  St.  Rep. 
811,  24  Atl.  688,  holding  owner  of  horse  seized  and  'sold  by  sheriff  on  execution 
againsfc  stranger  can  bring  action  of  trespass  against  sheriff;  Reece  v.  Rodgers,  40 
Pa.  Super.  Ct.  179,  holding  where  a  constable  distrains  and  sells  goods  already 
levied  upon  by  sheriff  under  a  judgment  against  the  tenant,  the  latter  cannot 
maintain  an  action  against  landlord  for  alleged  trespass. 

Cited  in  footnote  to  Vickery  v.  Crawford,  49  L.  R.  A.  773,  which  holds  sheriff 
not  protected  by  writ  of  sequestration  in  seizing  property  of  stranger. 
What  subject  to,  and  sufficiency  of,  levy. 

Cited  in  Miller  v.  Westerhoff,  14  Pa.  Super.  Ct.  610,  18  Lane.  L.  Rev.  21,  hold- 
ing goods  in  hands  of  sheriff  under  prior  levy  are  bound  by  a  second  fi.  fa.  from 
date  of  delivery;  McCleaster's  Estate  15  Pa.  Co.  Ct.  124,  3  Pa.  Dist.  R.  609, 
holding  mere  formal  levy  without  having  goods  in  possession  or  in  view  void  as 
against  assignment  for  creditors;  Glazier  v.  Sawyer,  11  Pa.  Co.  Ct.  36,  1  Pa. 
Dist.  R.  37,  holding  title  of  purchaser  subsequent  to  execution  cannot  be  de- 
feated where  no  levy  had  been  made. 

Cited  in  footnote  to  Battle  Creek  Valley  Bank  v.  First  Nat.  Bank,  56  L.  R.  A. 
124,  which  holds  physical  seizure  or  dispossession  essential  to  levy  of  execution  on 
chattels. 

Distinguished  in  Richards  v.  Miller,  11  Pa.  Super.  Ct.  231,  holding  acceptance 
of  goods  by  purchaser  on  execution  sale  estops  him  from  asserting  gooda  not  in 


5  L.R.A.  659]  L.  R.  A.  CASES  AS  AUTHORITIES.  932 

fact  sold;  Mansfield  v.  Bell,  24  Pa.  Super.  Ct.  453,  holding  no  evidence  that  con- 
stable changed  or  restricted  his  levy  to  the  interest  of  defendant  when  after  levy 
on  goods  the}'  were  claimed  by  third  party. 
Conclnsiveness  of  sheriff's  return. 

Cited  in  Rickard  v.  Major,  34  Pa.  Super.  Ct.  Ill,  holding  in  an  action  of  re- 
plevin the  defendant  cannot  in  his  affidavit  of  defense  contradict  the  sheriff's 
return. 

5  L.  R.  A.  661,  GROFF  v.  BIRD  IX  HAND  TURNP.  CO.  128  Pa.  621,  18  Atl.  431. 
Affirmed   without    opinion   by   majority    on   reargument   in    144    Pa.    152,    22 
Atl.  834. 
What    property    may    be    condemned. 

Cited  in  Scranton  Gas  &  Water  Co.  v.  Northern  Coal  &  I.  Co.  192  Pa.  87,  44 
W.  N.  C.  283,  73  Am.  St.  Rep.  798,  43  Atl.  470,  Reversing  3  Lack.  Legal  News, 
309,  holding  railroad  cannot  condemn  land  of  gas  company  necessary  for  latter'a 
present  and  future  use,  for  reasons  of  convenience  and  economy;  Farmers'  Market 
Co.  v.  Philadelphia  &  R.  Terminal  Co.  10  Pa.  Co.  Ct.  28,  28  W.  N.  C.  113,  sus- 
taining railroad  company's  right  to  condemn  property  of  market  company;  Phil- 
adelphia Water  Supply  Co.  v.  Susquehanna  Canal  Co.  4  Pa.  Dist.  R.  638,  deny- 
ing right  of  water  company  to  appropriate  entire  real  estate  of  canal  company; 
Lehigh  Coal  &  Nav.  Co.  v.  Scranton  Gas  &  Water  Co.  6  Pa.  Dist.  R.  309,  deny- 
ing water  company's  appropriation  of  flood  water  detrimental  to  rights  of  naviga- 
tion company;  Trenton  Cut-Off  R.  Co.  v.  Newtown  Electric  Street  R.  Co.  8  Pa. 
Dist.  R.  552,  denying  right  of  one  railway  company  to  occupy  lands  of  another 
without  permission;  Western  U.  Teleg.  Co.  v.  Pennsylvania  R.  Co.  59  C.  C.  A.  117, 
123  Fed.  37,  Affirming  120  Fed.  377,  33  Pittsb.  L  J.  N.  S.  245,  denying  right  of 
telegraph  company  which  had  occupied  railroad  lands  under  contract,  to  condemn 
right  of  way  after  termination  of  contract;  Western  U.  Teleg.  Co.  v.  Pennsylva- 
nia R.  Co.  195  U.  S.  597,  49  L.  ed.  336,  25  Sup.  Ct.  Rep.  150,  1  A.  &  E.  Ann.  Gas. 
533,  holding  railways  are  not  "highways"  within  the  meaning  of  a  provision 
in  the  charter  of  a  telegraph  company  giving  it  the  right  to  occupy  with  its 
telegraph  lines  any  of  the  roads,  highways,  streets  and  waters  within  the  state; 
South  Dakota  C.  R.  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.  73  C.  C.  A.  176,  141  Fed. 
584,  holding  statutes  of  South  Dakota  conferring  power  of  eminent  domain  on 
railroad  companies  while  authorizing  one  railroad  company  to  "cross,  intersect, 
join,  and  unite  its  road  with  the  railroad  of  any  other  company,"  do  not  au- 
thorize it  to  build  its  road  longitudinally  upon  the  right  of  way  of  another  com- 
pany, and  in  the  absence  of  such  statutory  right  it  cannot  condemn  a  right  of 
way  to  do  so;  Scranton  Gas  &  Water  Co.  v.  Delaware,  L.  &  W.  R.  Co.  225  Pa. 
161,  73  Atl.  1097,  holding  property  devoted  to  public  use  including  a  franchise,  is 
subject  to  eminent  domain,  and  may  be  taken  for  other  public  uses,  but  it 
cannot  be  taken  without  legislative  authority  expressed  in  clear  terms  or  by 
necessary  implication;  Southwestern  Normal  School's  Case,  213  Pa.  246,  62 
Atl.  908,  holding  statute  authorizing  the  condemnation  of  real  estate  needed 
for  the  use  of  state  normal  schools,  does  not  authorize  such  a  school  to  con- 
demn for  a  campus  streets  and  alleys  dedicated  to  public  use;  Re  Southwestern 
State  Normal  School,  26  Pa.  Super.  Ct.  102,  holding  acts  extending  corporate 
privileges  are  to  be  construed  most  strongly  against  the  company  setting  them 
up. 

Cited  in  notes  (13  L.R.A.  432)  on  property  which  may  be  condemned;  (22 
L.R.A. (N.S.)  3,  7)  on  judicial  power  over  eminent  domain;  (22  Am.  St.  Rep. 
48,  49)  on  eminent  domain;  (26  Am.  St.  Rep.  432)  on  right  of  one  railway  to 
cross  another. 


933  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  664 

Distinguished  in  Pittsburgh  Junction  R.  Co.  v.  Allegheny  Valley  R.  Co.  146  Pa. 
307,  29  W.  X.  C.  229,  23  Atl.  313,  upholding  right  to  make  necessary  crossing  of 
another  railroad's  yard,  upon  elevated  structure. 
—  Turnpike     cases. 

Cited  in  Philadelphia,  B.  &  B.  M.  Turnp.  Co.  v.  Bryn  Mawr  Water  Co.  16 
Montg.  Co.  L.  Rep.  117,  upholding  water  company's  right  to  lay  pipes  under 
turnpike;  Com.  v.  Philadelphia,  B.  &  B.  M.  Turnp.  Co.  12  Pa.  Co.  Ct.  279,  2  Pa. 
Dist.  R.  12,  31  W.  N.  C.  529,  upholding  amendment  of  turnpike  company's  charter 
extending  line  to  take  free  public  roads;  Wenger  v.  Rohrer,  3  Pa.  Super.  Ct. 
599,  40  W.  N.  C.  Ill,  14  Lane.  L.  Rev.  147,  holding  owners  of  turnpike  road  sub- 
stituted for  township  road  not  liable  for  interference  with  abutter's  drain; 
Blakely  v.  Delaware  &  H.  Canal  Co.  2  Lack.  Legal  News,  66;  McManus's  Appeal, 
5  Pa.  Super.  Ct.  69,  40  W.  N.  C.  485,  28  Pittsb.  L.  J.  N.  S.  61,  sustaining  turnpike 
company's  right  to  condemn  private  property  for  road  purposes;  Nesihger  v. 
Clay  &  H.  Turnp.  Co.  203  Pa.  267,  52  Atl.  197,  Affirming  19  Lane.  L.  Rev.  140, 
denying  injunction  against  turnpike  company's  operation  of  road  without  paying 
for  previous  improvements,  after  delay  of  sixteen  years. 

Distinguished  in  Schload  v.  Clay  &  H.  Turnp.  Co.  16  Lane.  L.  Rev.  283,  denying 
turnpike  company's  right  to  appropriate  abandoned  road  without  paying  for  pre- 
vious maintenance. 
Enjoining-    unauthorized   acts. 

Cited  in  Plymouth  Twp.  v.  Chestnut  Hill  &  N.  R,  Co.  168  Pa.  188,  36  W.  N.  C. 
320,  32  Atl.  19,  upholding  township's  right  to  restrain  construction  of  street 
railway  after  revocation  of  consent  for  failure  to  complete  line  within  time  fixed; 
Conestoga  &  B.  S.  Valley  Turnp.  Road  Co.  v.  Lancaster,  9  Lane.  L.  Rev.  236, 
denying  injunction  against  removal  of  toll  gate  after  delay  of  twenty-one  years; 
Riley  v.  Pennsylvania  Co.  32  Pa.  Super.  Ct.  593,  holding  an  abutting  owner  who 
must  use  a  street  as  a  means  of  access  to  his  property  has  a  special  interest 
therein,  which  gives  him  a  standing  to  invoke  the  aid  of  equity  to  prevent 
obstruction  of  the  street;  Berkey  v.  Berwind- White  Coal  Min.  Co.  220  Pa.  79, 
16  L.R.A.  (X.S.)  857,  69  Atl.  329  (dissenting  opinion)  upon  propriety  of  in- 
junctive  relief;  Griffith  v.  Monongahela  R.  Co.  20  Pa.  Dist.  R.  542,  58  Pittsb. 
L.  J.  14,  holding  that  equity  courts  will  enjoin  corporate  acts  trespass  which 
is  permanent  or  likely  to  become  such. 
Powers  of  corporations. 

Cited  in  note   (33  Am.  St.  Rep.  248)   on  powers  of  corporations. 

5  L.  R.  A.  664,  PLAISTED  v.  HAIR,  150  Mass.  275,  22  N.  E.  921. 
Marriage    affecting    rights    and    liabilities. 

Cited  in  Southworth  v.  Edmands,  152  Mass.  206,  9  L.  R.  A.  119,  25  N.  E.  106. 
holding  tax  properly  assessed  to  husband  of  owner  of  premises  by  unrecorded 
deed,  occupied  by  him  as  head  of  family;  Kirchgassner  v.  Rodick,  170  Mass.  545, 
49  X.  E.  1015,  holding  heir  cannot  recover  for  occupation  of  home  by  husband 
of  dowress  in  possession  by  consent  of  heir. 

Cited  in  footnote  to  Peaks  v.  Hutchinson,  59  L.  R,  A.  279,  which  sustains 
wife's  contract  to  permit  husband  to  erect  building  on  her  land  which  shall  re- 
main his;  Blackburn  v.  Thompson,  56  L.  R.  A.  938,  which  holds  subject  to  hus- 
band's debts,  property  purchased  in  wife's  name  from  profits  of  business  con- 
ducted by  him  as  her  agent;  Dempster  Mill  Mfg.  Co.  v.  Bundy,  56  L.  R.  A.  739, 
which  holds  void,  contract  that  product  of  joint  labor  of  husband  and  wife  shall 
belong  to  wife. 


5  L.R.A.  664]  L.  R.  A.  CASES  AS  AUTHORITIES.  934 

Cited  in  note  (77  Am.  St.  Rep.  99)  on  liability  of  wife's  separate  estate  to 
husband's  creditors  for  value  of  increase  due  to  his  acts. 

5  L.  R.  A.  666,  TUCK  v.  MANNING,  150  Mass.  211,  22  N.  E.  1001. 
Money    deposited    by    order    of    court. 

Cited  in  Gregory  v.  Merchants'  Nat.  Bank,  171  Mass.  70,  50  N.  E.  520,  holding 
ownership  of  money  deposited  by  order  of  Federal  court  in  bank  cannot  be  de- 
termined by  state  court;  Corbitt  v.  Farmers'  Bank,  114  Fed.  604,  holding  money 
under  control  of  Federal  court  not  subject  to  attachment  by  any  other  court; 
Chase  v.  Thompson,  153  Mass.  16,  26  N.  E.  137,  holding  money  deposited  for  bene- 
fit to  distributee  by  order  of  probate  court  cannot  be  reached  by  trustee  process; 
First  Nat.  Bank  v.  Londonderry  Min.  Co.  50  Colo.  90,  114  Pac.  313,  holding  that 
no  independent  action  is  required  to  compel  payment  of  moneys  borrowed  from 
court  by  bank,  as  it  is  subject  to  court's  order;  Shelton  v.  Wolthausen,  80  Conn. 
604,  125  Am.  St.  Rep.  131,  69  Atl.  1030,  holding  money  in  the  clerk's  hands 
directed  by  a  decree  to  be  paid  to  a  third  person,  cannot  be  made  the  subject  of 
foreign  attachment  with  the  usual  consequence  that  judgment  may  be  followed  by 
scire  facias  to  appropriate  the  fund;  \Yilliston  Seminary  v.  Easthampton  Spin- 
ning Co.  186  Mass.  488,  72  N.  E.  67,  holding  where  a  receiver  of  a  corporation 
was  appointed  in  a  creditor's  suit  a  petition  of  intervention  was  not  maintain- 
able therein,  prior  to  entry  of  a  decree  of  distribution,  either  against  the  receiver 
or  the  corporation,  by  one  creditor  for  the  purpose  of  subjecting  the  claim  of 
another  against  the  corporation,  or  any  dividend  that  might  be  paid  thereon,  to 
an  individual  indebtedness  existing  between  such  creditors. 

Cited  in  footnotes  to  McAlmond  v.  Bevington,  53  L.  R.  A.  597,  which  holds 
money  deposited  with  justice  by  third  person  as  bail  not  subject  to  garnishment 
for  prisoner's  debt;  Jones  v.  Merchants'  Nat.  Bank,  35  L.  R.  A.  698,  which  holds 
money  paid  into  court  exempt  from  process  of  litigant  unless  consent  of  court 
obtained. 

Cited  in  note  (10  L.  R.  A.  529)  on  property  in  custody  of  law  not  subject  to 
seizure. 

Distinguished  in  Adamian  v.  Hassanoff,  189  Mass.  196,  75  N.  E.  126,  holding 
statute  authorizing  suits  by  creditors  to  reach  any  property  of  a  debtor  which 
cannot  be  reached  at  law,  authorizes  a  creditor  to  maintain  a  bill  to  reach  his 
debtor's  property  after  the  court  in  which  the  suit  is  brought  has  appointed  a 
receiver  with  authority  to  obtain  a  warehouse  receipt  for  the  property  as  receiver 
and  to  transfer  the  same  to  another  warehouse  subject  to  import  duties  due  the 
government  and  impound  the  warehouse  receipt  in  the  office  of  the  clerk  of  court, 
where  the  appointment  was  made  after  attempted  attachments  at  law  by  other 
creditors  while  the  property  was  in  the  warehouse  subject  to  lien  for  import 
duties  after  discharge  of  trustees  in  attachment  suits. 
Jnrisdictional  averments  necessary  to  sustain  creditor's  bill. 

Cited  in  Hoshor-Platt  Co.  v.  Miller,  190  Mass.  287,  76  N.  E.  650,  holding  where 
a  cause  of  action  was  not  in  itself  a  subject  of  equitable  jurisdiction  and  plain- 
tiff's right  to  equitable  relief  depended  entirely  upon  the  fact  that  the  bill  was 
brought  to  reach  and  apply  in  payment  of  plaintiff's  alleged  debt,  property  of 
debtor  not  subject  to  attachment  or  execution  as  authorized  by  statute,  the 
averments  of  the  bill  as  to  the  existence  of  such  property  were  jurisdictional 
and  must  be  proved  as  laid. 
Intervention. 

Cited  in  Hill  v.  Hill,  196  Mass.  519,  82  N.  E.  690,  as  to  whether  upon  petition 
by  divorced  wife  who  has  obtained  decrees  giving  her  custody  of  children  and 
maintenance  and  issuing  of  process  of  attachment  and  execution  upon  land  of 


335  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  667 

former  husband,  a  person  who  claims  attached  land  under  oral  trust,  can  inter- 
vene by  petition  in  this  proceeding  instead  of  filing  an  independent  bill  in  equity. 

5  L.  R.  A.  667,  RYALLS  v.  MECHANICS  MILLS,  150  Mass.  190,  22  X.  E.  766. 
Construction    of    statutes. 

Cited  in  Emmons  v.  Shaw,  171  Mass.  412,  50  N.  E.  1033,  holding  construction 
determined  by  application  of  ordinary  rules  of  law  relating  to  subject-matter,  and 
by  considering  manner  of  their  application  to  similar  statutes  elsewhere;  Parsons  v. 
Parsons,  67  N.  H.  420,  29  Atl.  999;  Bellegarde  v.  Union  Bag  &  Paper  Co.  90  App. 
Div.  581,  86  N.  Y.  Supp.  72,  holding  fact  that  statute  is  copied  from  another 
state  is  evidence  of  intention  to  confine  its  application  to  claims  of  nature  to 
which  it  is  there  applied;  Vetaloro  v.  Perkins,  101  Fed.  393,  and  Griffin  v.  Over- 
man \Yheel  Co.  9  C.  C.  A.  547,  21  U.  S.  App.  151,  61  Fed.  572,  holding  purpose 
of  Massachusetts  employers'  liability  act  is  to  remove  existing  limitations  upon 
remedy  of  employees  for  personal  injuries,  and  should  be  liberally  construed; 
Jarvis  v.  Hitch,  161  Ind.  220,  67  N.  E.  1057,  holding  steam  pile-driver,  consisting 
of  engine  at  one  end  and  driver  at  other  end  of  flat  car,  not  "locomotive  engine;" 
Gmaehle  v.  Rosenberg,  178  N.  Y.  152,  70  N.  E.  411,  holding  service  of  notice  of 
injury  unnecessary  in  actions  based  on  master's  common-law  liability;  American 
Rolling  Mill  Co.  v.  Hullinger,  161  Ind.  679,  67  N.  E.  986,  holding  rules  of  inter- 
pretation and  construction  are  derived  from  common  law;  Jarvis  v.  Hitch,  161 
Ind.  220,  67  N.  E.  3057,  holding  where  an  English  statute  is  adopted  by  the  legis- 
lature, the  construction  given  thereto  by  the  English  courts  prior  to  such  adop- 
tion, is  persuasive  in  determining  the  meaning  of  the  language  used  therein; 
Com.  v.  Greenwood,  205  Mass.  127,  91  N.  E.  141,  18  Ann.  Cas.  185;  State  v. 
O'Xeil,  147  Iowa,  527,  33  L.R.A.(X.S.)  796,  126  X.  W.  454,  Ann.  Cas.  1912B, 
691, — to  the  point  that  judicial  interpretation  of  statute  becomes  part  of  stat- 
ute law  when  re-enacted;  Zaloom  v.  Ganim,  72  Misc.  44,  129  X.  Y.  Supp.  85 
(dissenting  opinion),  on  interpretation  of  foreign  statute  re-enacted. 

Cited  in  footnote  to  Wolf  v.  Youbert,  21  L.  R.  A.  772,  which  requires  applica- 
tion, in  construing  adopted  statute,  of  construction  of  courts  of  state  from  which 
adopted. 

Cited  in  notes   ( 12  L.  R.  A.  857 )   on  judicial  power  in  interpretation  and  con- 
struction of  statutes;    (10  L.  R.  A.  841)    on  statutes  in  derogation  of  common 
law  are  strictly  construed. 
Effect    of    employers'    liability   acts. 

Cited  in  Clark  v.  Merchants  &  Miners  Transp.  Co.  151  Mass.  353,  24  X.  E. 
49,  and  Coughlin  v.  Boston  Tow-Boat  Co.  151  (Mass.  94,  23  X.  E.  721,  holding 
employers'  liability  act  does  not  take  away  common-law  right  of  action;  Colorado 
Milling  &  Elevator  Co.  v.  Mitchell,  26  Colo.  289,  58  Pac.  28,  holding  common-law 
right  of  employees  to  recover  for  personal  injury  not  taken  away  by  employers' 
liability  act  1893;  French  v.  Mascoma  Flannel  Co.  66  X.  H.  98,  20  Atl.  363, 
holding  statute  conditioning  employee's  right  of  action  upon  his  giving  employer 
notice  within  sixty  days  after  injury  not  applicable  to  cause  of  action  by  per- 
sonal representative  under  prior  statute;  Mitchell  v.  Colorado  Milling  &  Elevator 
Co.  12  Colo.  App.  281,  55  Pac.  736,  holding  employers'  liability  act  1893,  requiring 
notice  to  employer  within  sixty  days  after  injury,  not  applicable  to  action  by 
mother  for  death  of  son;  Colorado  Coal  &  I.  Co.  v.  Carpita,  6  Colo.  App.  254,  40 
Pac.  248,  holding  mining  act  not  conclusive  of  remedy  and  of  parties  who  may 
sue,  when  case  not  clearly  based  on  violation  of  statute;  Boggs  v.  Alabama 
Consol.  Coal  &  I.  Co.  167  Ala.  255,  140  Am.  St.  Rep.  28?  52  So.  878,  holding  that 
Employer's  Liability  Act  is  remedial  and  does  not  destroy  any  common  law- 
right  of  servant;  Denver  *  R.  G.  R.  Co.  v.  Xorgate,  G  L.R.A.  (X.S.)  991,  72 


5  L.I7.A.  667]  L.  R.  A.  CASES  AS  AUTHORITIES.  936 

C.  C.  A.  365,  141  Fed.  251,  5  A.  &  E.  Ann.  Cas.  448,  holding  Colorado  employers 
liability  act  applies  only  in  cases  founded  on  rights  created  thereby,  and  the 
provision  requiring  notice  of  an  injury  to  be  given  by  an  employee  within  60  days 
as  a  condition  precedent  to  suit  has  no  application  to  suit  upon  right  of  action 
given  by  common  law;  Feeney  v.  York  Mfg.  Co.  189  Mass.  339,  75  N.  E.  733, 
holding  statute  authorizing  an  employee  to  recover  for  a  personal  injury  caused 
by  a  defect  in  the  ways,  works  or  machinery  in  the  business  of  the  employer,  or 
by  the  negligence  of  a  person  in  the  service  of  the  employer  exercising  superin- 
tendence does  not  limit  the  right  of  recovery  to  injuries  caused  by  defective 
permanent  appliances,  but  embraces  unsafe  appliances  of  a  temporary  character. 

Cited  in  footnotes  to  Johnson  v.  St.  Paul  &  D.  R.  Co.  8  L.  R.  A.  419,  which 
holds  railroad  company  not  liable  for  injury  from  fellow  servant's  negligence  to 
member  of  crew  repairing  bridge;  Johnson  v.  St.  Paul  &  D.  R.  Co.  8  L.  R.  A.  419, 
which  holds  railroad  employers'  liability  act  1887  applicable  only  to  employees 
exposed  to  peculiar  hazards  connected  with  use  and  operation  of  railroad. 

Cited  in  note   (12  L.R.A. (N.S.)    1038)    on  effect  on  common-law  action  of  em- 
ployer's liability  act. 
Joinder   of   common-law  and   statutory   rights   of   action. 

Cited  in  Clare  v.  New  York  &  X.  E.  R.  Co.  172  Mass.  212,  51  N.  E.  1083,  holding 
servant,  or  his  administrator,  suing  for  personal  injury  may  join  counts  at 
common  law  with  counts  under  employers'  liability  act;  May  v.  Whittier  Mach. 
Co.  154  Mass.  31,  27  N.  E.  768,  holding  plaintiff  not  prejudiced  by  being  required 
to  elect  between  statutory  and  common-law  count,  where  negligence  complained 
of  was  that  of  fellow  servant. 
Risks  assumed  by  servant. 

Cited  in  Mellor  v.  Merchants'  Mfg.  Co.  150  Mass.  363,  5  L.  R,  A.  793,  23  N.  E. 
100,  holding  servant  assumes  risk  of  known  dangers  of  employment,  irrespective 
of  any  implied  term  in  contract  of  service ;  Birmingham  R.  &  Electric  Co.  v. 
Allen,  99  Ala.  373,  20  L.  R.  A.  461,  13  So.  8,  holding  maxim,  Volenti  non  fit  in- 
juria  applicable  to  action  under  employers'  liability  act;  American  Rolling  Mill 
Co.  v.  Hullinger,  161  Ind.  679,  67  X.  E.  986,  holding  that  complaint  under  em- 
ployers' liability  act  for  injuries  from  leaving  truss  without  support  must  allege 
nonassumption  of  risk. 

Cited  in  note  (19  Eng.  Rul.  Cas.  163,  167)  on  assumption  of  risks  by  employee. 
"When  negrli&ence  of  fellow  servant  impntable  to  master. 

Cited  in  Haskell  v.  Cape  Ann  Anchor  Works,  178  Mass.  487,  59  X.  E.  1113,  hold- 
ing fact  that  proximate  cause  of  damage  was  negligence  of  fellow  servant  in 
making  permanent  appliance,  not  defense  to  action  for  personal  injury;  Bjbjian 
v.  Woonsocket  Rubber  Co.  164  Mass.  219,  41  N.  E.  265,  holding  negligence  of 
workman  in  performance  of  regular  daily  duty  incident  to  ordinary  use  of  ma- 
chinery not  imputable  to  master;  Carbury  v.  Downing,  154  Mass.  251,  28  X.  E. 
162,  holding  wire  defectively  secured  in  hoisting  rope  to  indicate  time  for  stop- 
ping engine,  not  defect  in  ways,  works,  or  machinery  existing  through  negligence 
of  employer;  McLaine  v.  Head  &  D.  Co.  71  X.  H.  308,  58  L.  R.  A.  469,  93  Am.  St. 
Rep.  522,  52  Atl.  545  (dissenting  opinion),  majority  holding  failure  of  foreman  to 
notify  laborer  in  trench  of  dumping  of  load  of  earth  not  breach  of  master's  duty 
to  provide  safe  place  to  work;  Rowley  v.  Ellis,  397  Mass.  395,  83  X.  E.  1103,  as 
to  negligence  of  fellow  servant  in  failure  to  inspect  being  imputable  to  master; 
Haskell  v.  Cape  Ann  Anchor  Works.  178  Mass.  487,  4  L.R.A.  (X.S.)  227,  59  X. 
E.  1113,  as  to  fact  that  fellow  servant  made  appliance  being  no  defense  to 
action  by  servant  injured  by  defect  in  same. 

Cited  in  note    (4  L.R.A. (X.S.)    221,  229)    on  duty  of  master  to  furnish   safe 


<J37  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  671 

appliances  as  affected  by  fact  that  defective  appliances  are  prepared  by  fellow 
servants. 

5  L.  R.  A.  671,  DUPREAU  v.  HIBERNIA  INS.  CO.  76  Mich.  615,  43  N.  W.  585. 

Ownership    and    change    of    possession    of    insured    property. 

Cited  in  Loventhal  v.  Home  Ins.  Co.  112  Ala.  119,  33  L.  R.  A.  262,  57  Am.  St. 
Rep.  24,  20  So.  419,  holding  vendee  may  recover  as  "sole  owner"  within  meaning 
of  policy  where  in  possession  under  purchase  contract  and  bond  of  vendor,  to 
convey  on  full  payment  of  purchase  price;  Knop  v.  National  F.  Ins.  Co.  101  Mich. 
361,  59  N.  W.  653,  holding  vendee  in  possession  under  land  contract  may  recover 
on  insurance  policy,  void  unless  insured  "sole  owner,"  where  vendee  made  no 
written  application  for  policy  nor  any  representations  regarding  ownership;  Liv- 
erpool &  L.  &  G.  Ins.  Co.  v.  Ricker,  10  Tex.  Civ.  App.  268,  31  S.  W.  248,  holding 
existence  of  vendor's  lien  for  purchase  price  and  outstanding  purchase  money 
notes  does  not  bar  recovery  by  vendee  on  policy  stipulating  for  his  sole  owner- 
ship; Light  v.  Greenwich  Ins.  Co.  105  Tenn.  487,  58  S.  W.  851,  holding  vendee  of 
personal  property  in  conditional  sale,  reserving  title  to  vendor  though  possession 
passed  to  vendee,  sole  owner  within  policy;  Hamilton  v.  Dwelling  House  Ins.  Co. 
98  Mich.  538,  22  L.  R.  A.  529,  57  N.  W.  735,  holding  vendor,  in  contract  for  sale 
of  land  under  which  vendee  has  taken  possession  and  made  payments,  has  insur- 
able  interest  covered  by  policy,  where  company  is  estopped  to  assert  that  he  is  not 
«ole  owner;  Matthews  v.  Capital  F.  Ins.  Co.  115  Wis.  274,  91  N.  W.  675,  holding 
vendee's  interest  under  land  contract  "unconditional  and  sole  ownership''  within 
policy;  McCollough  v.  Home  Ins.  Co.  155  Cal.  662,  102  Pac.  814,  holding  a  vendee 
in  possession  under  a  contract  not  signed  by  him,  but  referring  to  an  application 
to  purchase  signed  by  him,  was  within  the  rule  that  holder  of  an  equitable  title 
is  the  "unconditional  and  sole  owner"  within  the  meaning  of  that  condition  in  a 
policy  of  insurance.  Connecticut  F.  Ins.  Co.  v.  Colorado  Leasing  Min.  &  Mill.  Co. 
50  Colo.  439,  116  Pac.  154,  Ann.  Cas.  1912C,  597,  holding  that  vendee  in  possession 
of  land  is  "unconditional  and  sole  owner  in  fee  simple"  within  meaning  of  insur- 
ance policy;  Insurance  Co.  of  N.  A.  v.  Erickson,  50  Fla.  429,  2  L.R.A. (N.S.)  512, 
111  Am.  St.  Rep.  121,  39  So.  495,  7  A.  &  E.  Ann.  Cas.  495,  holding  the  interest  of 
a  purchaser  of  property,  which  he  has  unqualifiedly  agreed  to  buy,  and  which  the 
former  owner  has  absolutely  contracted  to  sell  him  upon  definite  terms,  is  the 
sole  and  unconditional  ownership  within  the  true  meaning  of  the  ordinary  clause 
in  insurance  policies;  Maas  v.  Anchor  F.  Ins.  Co.  148  Mich.  434,  111  N.  W.  1044, 
holding  one  having  the  equitable  title  to  land  by  virtue  of  a  parol  gift,  followed 
by  possession  and  improvement,  is  the  absolute  owner  within  an  application  for 
a  fire  policy,  and  is  the  owner  in  fee  simple  within  the  meaning  of  the  policy; 
Bakker  v.  Fellows,  153  Mich.  437,  117  N.  W.  52  (dissenting  opinion),  as  to  what 
constitutes  ownership. 

Cited  in  notes    (11  L.R.A.  599)   on  what  are  insurable  interests;    (20  L.R.A. 
(N.  S.)  777)  on  vendee  under  land  contract  as  owner  within  meaning  of  insur- 
ance policy. 
—  Change  of  possession. 

Cited  in  Phenix  Ins.  Co.  v.  Caldwell,  187  111.  80,  58  N.  E.  314,  holding  execution 
of  bond  for  deed,  together  with  receipt  of  portion  of  purchase  money,  not  "sale" 
within  meaning  of  policy  void  in  event  of  transfer  of  possession  of  title;  Phenix 
Ins.  Co.  v.  Caldwell,  85  111.  App.  108,  holding  title  unaffected  by  execution  and 
delivery  of  bond  for  deed,  within  provision  avoiding  policy  in  case  of  sale  or 
transfer,  or  change  of  title  or  possession, 
Estoppel  as  to  ownership. 

Cited  in  State  Ins.  Co.  v.  Du  Bois,  7  Colo.  App.  222,  44  Pac.  756,  and  Wich  v. 


5  L.R.A.  671]  L.  R.  A.  CASES  AS  AUTHORITIES.  938 

Equitable  F.  A  M.  Ins.  Co.  2  Colo.  App.  488,  31  Pac.  389,  holding  defense  of  in- 
correct statement  in  policy  of  nature  of  insured's  title  rebutted  by  proof  that  facts 
correctly  stated  to  agent  authorized  to  take  application. 

5  L.  R.  A.  673,  NATIONAL  PARK  BANK  v.  GERMAN-AMERICAN  MUT. 
WAREHOUSING  &  SECUR.  CO.  116  N.  Y.  281,  26  N.  Y.  S.  R,  675,  22  N.  E. 
567. 

Action  to  hold  trustee  of  corporation  liable  for  debt  in  National  Park  Bank  v. 
Remsen,  158  U.  S.  337,  39  L.  ed.  1008,  15  Sup.  Ct.  Rep.  891,  Affirming  43  Fed.  227. 
Accommodation  indorsements  and  guaranties  by  corporation. 

Cited  in  Tod  v.  Kentucky  Union  Land  Co.  57  Fed.  51;  Lyon,  P.  &  Co.  v.  First 
Nat.  Bank,  29  C.  C.  A.  47,  55^  U.  S.  App.  747,  85  Fed.  122;  Park  Hotel  Co.  v. 
Fourth  Nat.  Bank,  30  C.  C.  A.  414,  58  U.  S.  App.  674,  86  Fed.  747 :  Fox  v.  Rural 
Home  Co.  90  Hun,  368,  35  N.  Y.  bupp.  896;  A.  D.  Farmer  &  Son  Type- Founding 
Co.  v.  Humboldt  Pub.  Co.  27  Misc.  316,  57  N.  Y.  Supp.  821;  Carney  v.  Duniway, 
35  Or.  138,  57  Pac.  192;  Steiner  v.  Steiner  Land  &  Lumber  Co.  120  Ala.  140,  26 
So.  494, — denying  power  to  become  accommodation  indorser  unless  such  power  ex- 
pressly or  incidentally  conferred;  Dobson  v.  More.  164  111.  115,  56  Am.  St.  Rep. 
184,  45  N.  E.  243,  holding  authority  to  make  notes  for  corporation  confers  no 
power  to  guarantee  notes  of  third  person;  Humboldt  Min.  Co.  v.  American  Mfg. 
Min.  &  Milling  Co.  10  C.  C.  A.  420..  22  U.  S.  App.  334,  62  Fed.  361,  denying  power 
to  guarantee  contract;  Filon  v.  Miller  Brewing  Co.  38  N.  Y.  S.  R.  603,  15  N.  Y. 
Supp.  57,  denying  power  to  guarantee  lease;  Thilmany  v.  Iowa  Paper  Bag  Co.  108 
Iowa,  338,  79  N.  W.  68,  holding  guaranty  of  obligation  in  which  national  bank 
has  no  interest,  ultra  vires;  Chrystie  v.  Foster,  9  C.  C.  A.  609,  26  U.  S.  App.  67, 
61  Fed.  554,  holding  funds  of  banking  corporation  not  applicable  to  payment  of 
president's  individual  note;  Bremen  Sav.  Bank  v.  Branch-Crookes  Saw  Co.  104 
Mo.  437,  16  S.  W.  209,  holding  corporation  estopped  by  conduct  inducing  belief 
that  it  has  assumed  debt,  to  deny  liability  on  accommodation  note :  National 
Bank  v.  H.  P.  Snyder  Mfg.  Co.  117  App.  Div.  374,  102  N.  Y.  Supp.  478;  Bacon 
v.  Montauk  Brewing  Co.  130  App.  Div.  742,  115  N.  Y.  Supp.  617;  Morris  v. 
Ernst  Wiener  Co.  65  Misc.  19,  119  N.  Y.  Supp.  163;  Ellett-Kendall  Shoe  Co.  v. 
Western  Stores  Co.  132  Mo.  App.  519,  112  S.  W.  4,— holding  contract  of  guar- 
anty by  corporation  ultra  vires;  Cook  v.  American  Tubing  &  Webbing  Co.  28 
R  I.  48,  9  L.R.A.(N.S.)  200,  65  Atl.  641;  Deaton  Grocery  Co.  v.  International 
Harvester  Co.  47  Tex.  Civ.  App.  271,  105  S.  W.  556, — holding  accommodation  in- 
dorsement of  promissory  note  by  corporation  ultra  vires;  Carlaftes  v.  Goldmeyer 
Co.  72  Misc.  76,  129  N.  Y.  Supp.  396,  holding  that  accommodation  indorsement 
by  corporation  is  ultra  vires,  though  it  takes  security,  in  absence  of  charter 
powers. 

Cited  in  notes  (27  L.R.A.  408)  on  power  of  agents  to  indorse  negotiable  paper; 
(70  Am.  St.  Rep.  164)  on  contracts  of  guaranty  of  negotiable  paper  as  ultra 
vires. 

Distinguished  in  Hess  v.  Sloane,  66  App.  Div.  525,  73  N.  Y.  Supp.  313,  sustain- 
ing power  to  guarantee  against  loss,  accommodation  indorser  of  customer's  note. 
Xotlce  of  accommodation  indorsement. 

Cited  in  First  Nat.  Bank  v.  Weston.  25  App.  Div.  419,  49  N.  Y.  Supp.  542,  hold- 
ing transferee  of  payee  chargeable  with  notice  of  accommodation  indorsement; 
Jennings  v.  Kosmak,  20  Misc.  302,  45  N.  Y.  Supp.  802,  holding  indorsement  on 
note  payable  to  and  negotiated  by  maker  presumptively  for  accommodation; 
Smith  v.  Weston,  159  N.  Y.  199,  54  N.  E.  38,  Affirming  88  Hun,  26,  34  N.  Y. 
Supp.  557,  holding  one  taking  note  from  maker  must  show  prior  indorsement 
of  partnership  name  authorized;  Simmons  Nat.  Bank  v.  Dilley  Foundry  Co.  95 


939  L.  R.  A.  CASES  AS -AUTHORITIES.  [5  L.R.A.  677 

Ark.  372,  130  S.  W.  162,  holding  that  knowledge  that  note  is  in  hands  of  one 
joint  maker  to  be  negotiated  for  his  benefit  is  sufficient  notice  that  others  signed 
for  accommodation;  Deloria  v.  Atkins,  158  Mich.  237,  122  N.  \V.  559,  as  to  person 
discounting  note  being  chargeable  with  notice  as  to  character  of  indorsement; 
First  Nat.  Bank  v.  Gridley,  112  App.  Div.  401,  98  N.  Y.  Supp.  445;  Traders' 
Nat,  Bank  v.  Jones,  104  App.  Div.  436,  93  N.  Y.  Supp.  768, — as  to  when  one  pre- 
sumptively an  accommodation  indorser;  Willard  v.  Crook,  21  App.  D.  C.  240, 
holding  that  defense  of  want  of  power  of  corporation  to  make  accommodation 
indorsement  is  unavailable,  where  party  acting  on  faith  of  indorsement  had  not 
notice  of  want  of  power. 

Cited  in  footnote  to  Brown  v.  Pettit,  34  L.  R.  A.  723,  which  holds  indorsement 
of  firm  name  on  own  note  to  firm  by  partner  discounting  it  for  own  benefit,  no- 
tice of  want  of  authority. 

Cited  in  notes  (2  L.R.A.  (N.S.)  525)  on  taking  note  from  maker  or  payee  as 
constructive  notice  of  accommodation  character  of  and  lack  of  authority  for  in- 
dorsement; (29  L.R.A. (N.S.)  361)  on  circumstances  sufficient  to  put  purchaser 
of  corporate  accommodation  negotiable  paper  on  inquiry. 

Distinguished  in  Re  Troy  &  C.  Shirt  Co.  136  Fed.  433,  where  party  who  dis- 
counted the  notes  knew  the  president  and  treasurer  of  the  corporation  who  made 
the  notes  were  also  members  of  the  firm  for  whose  accommodation  the  notes  were 
made. 
Accommodation     Indorser's     liability. 

Cited  in  Lincoln  Nat.  Bank  v.  Butler,  16  Misc.  567,  38  N.  Y.  Supp.  776,  holding 
bona  fide  holder  with  notice  can  recover  from  accommodation  indorser;   Willard 
v.  Crook,  21  App.  D.  C.  240,  holding  want  of  corporate  power  to  indorse  for  accom- 
modation no  defense  to  action  by  holder  without  notice. 
Authority  of  officers  of  corporation  to  execute  contracts. 

Cited  in  Johnson  &  K.  Co.  v.  Longley  Luncheon  Co.  207  Mass.  55,  92  N.  E.  1035, 
holding  that  corporate  check  payable  to  creditor  of  individual,  who  is  officer  is 
prima  facie  invalid;  National  Bank  v.  H.  P.  Snyder  Mfg.  Co.  107  App.  Div.  97, 
94  N.  Y.  Supp.  982,  as  to  how  far  validity  of  note  is  established  by  signature 
of  the  president  and  treasurer  of  a  corporation. 

Distinguished  in  George  E.  Lloyd  &  Co.  v.  Matthews,  223  111.  480,  7  L.R.A. 
(N.S.)  379,  114  Am.  St.  Rep.  346,  79  N.  E.  172,  holding  where  a  contract  properly 
executed  for  a  corporation  by  its  president  is  such  as  the  corporation  might 
lawfully  make,  proof  of  the  execution  by  the  president  is  sufficient  in  the  absence 
of  evidence  that  the  contract  was  not  made  by  the  authority  of  the  corporation. 

5  L.  R,  A.  677,  WALTON  v.  AGRICULTURAL  INS.  CO.  116  N.  Y.  317,  22  N.  E. 

443. 
Conditions   affecting?    policy. 

Cited  in  England  v.  Westchester  F.  Ins.  Co.  of  New  York,  81  Wis.  591,  29  Am. 
St.  Rep.  917,  51  N.  W.  954,  holding  policy  void  by  premises  remaining  vacant  and 
unoccupied  for  ten  days;  Moore  v.  Niagara  F.  Ins.  Co.  199  Pa.  52,  85  Am.  St.  Rep. 
771,  48  Atl.  869,  holding  policy  void  on  premises  remaining  vacant  for  a  period 
of  ten  days  after  having  been  occupied;  Germania  F.  Ins.  Co.  v.  Home  Ins.  Co.  144 
N.  Y.  198,  26  L.  R.  A.  592,  43  Am.  St.  Rep.  749,  39  N.  E.  77,  holding  policy  void 
by  sale  to  third  party  with  whom  partnership  was  former;  Laclede  Fire  Brick 
Mfg.  Co.  v.  Hartford  Steam  Boiler  Inspection  &  Ins.  Co.  9  C.  C.  A,  10,  19  U.  S. 
App.  510,  60  Fed.  361,  holding  agent  occasionally  soliciting  insurance  cannot  mod- 
ify policy  in  any  way.  . 

Cited  in  note   (20  Am.  St.  Rep.  826)   on  construction  of  insurance  policy. 


5  L.R.A.  677]  L.  R.  A.  CASES  AS  AUTHORITIES.  940 

Pnrol    evidence. 

Cited  in  Providence  Washington  Ins.  Co.  v.  Board  of  Education,  49  W.  Va.  377, 
38  S.  E.  679,  holding  evidence  of  verbal  agreement  with  agent  to  waive  right  of 
insurer  to  repair  or  rebuild  inadmissible;  Evans  v.  Columbia  F.  Ins.  Co.  40  Misc. 
321,  81  N.  Y.  Supp.  933,  holding  parol  evidence  admissible  to  contradict  repre- 
sentation in  policy  as  to  amount  of  property  insured;  Dady  v.  O'Rourke,  172  N.  Y. 
453,  65  N.  E.  273,  denying  admissibility  of  parol  evidence  to  explain  written  con- 
tract by  showing  intention  to  sell  and  buy  only  such  stock  as  vendor  had;  Evan^ 
v.  Columbia  F.  Ins.  Co.  40  Misc.  321,  81  N.  Y.  Supp.  933,  holding  parol  evidence 
cannot  be  received  to  vary  contract  of  insurance;  Johnson  v.  Continental  Ins. 
Co.  119  Tenn.  615,  107  S.  W.  688,  holding  where  an  insurance  policy  and  the 
premium  note  given  therefor  provide  for  forfeiture  of  policy  on  nonpayment  of 
an  installment  of  the  premium  parol  evidence  is  inadmissible  in  an  action  on  the 
policy  to  show  waiver  of  such  provision  at  time  of  making  contract;  Dady 
v.  O'Rourke,  172  N.  Y.  453,  65  N.  E.  273,  holding  where  a  written  contract  pro- 
vides for  a  sale  of  corporate  stock  to  amount  of  three  fifths  of  capital  stock 
parol  evidence  is  inadmissible  to  show  that  the  parties  to  the  contract  intended 
that  vendor  should  sell  and  the  purchaser  buy,  only  such  stock  as  the  former 
held. 

Cited  in  note  (16  L.R.A.(N.S.)  1171,  1207)  on  parol-evidence  rule  as  to  vary- 
ing or  contradicting  written  contracts,  as  affected  by  doctrine  of  waiver  or  estop- 
pel as  applied  to  insurance  policies. 

5  L.  R.  A.  681,  ANDRUS  v.  BOARD  OF  POLICE,  41  La.  Ann.  697,  17  Am.  St. 

Rep.  411,  6  So.  603. 
When    taxpayer    estopped. 

Cited  in  Desmarais  v.  Board  of  Police,  42  La.  Ann.  801,  8  So.  597,  and  Dupre  v. 
Board  of  Police,  42  La.  Ann.  802,  8  So.  597,  holding  taxpayer  estopped  from  ob- 
jecting to  special  tax  for  improvement  for  which  he  petitioned  and  voted;  New 
Iberia  v.  Fontelieu,  108  La.  Ann.  464,  32  So.  369,  holding  taxpayer  liable  on  note 
voluntarily  made  in  payment  for  construction  by  town  of  sidewalk  in  front  of  his 
premises;  Preston  v.  Cedar  Rapids,  95  Iowa,  79,  63  N.  W.  577,  holding  petition 
for  improvement  was  intended  for  established  grade  and  not  for  one  superseded 
by  ordinance  for  which  taxpayer  petitioned;  Vickery  v.  Hendricks  County,  134 
Ind.  556,  32  N.  E.  880,  holding  taxpayer  estopped  from  objecting  to  constitution- 
ality of  act  by  which  he  benefited;  Cluggish  v.  Koons,  15  Ind.  App.  607,  43  N.  E. 
158,  holding  taxpayer  standing  by  and  encouraging  work  done  on  street  improve- 
ment estopped  to  allege  act  under  which  work  performed  repealed;  Burdin  v.  St. 
Martin  Parish,  127  La.  559,  53  So.  861,  holding  that  taxpayer,  who  signs  petition 
asking  for  an  election  to  vote  on  levying  of  special  tax  for  public  improvement,  is 
estopped  from  suing  to  declare  it  a  nullity,  although  he  did  not  vote. 

Distinguished  in  Webster  v.  Police  Jury,  52  La.  Ann.  470,  27  So.  102,  holding 
petitioning  taxpayer  not  estopped  from  questioning  tax  on  ground  of  irregularity, 
illegality,  and  fraud. 

5  L.  R.  A.  682,  LYNCH  v.  SELLERS,  41  La.  Ann.  375,  6  So.  561. 
Right    to    rescind    contract. 

Cited  in  Delmar  Oil  Co.  v.  Bartlett,  62  W.  Va.  706,  59  S.  E.  634,  holding  if 
one  party  to  a  contract  is  compelled  to  abandon  it  because  of  the  other's  negli- 
gence or  improper  interference  he  is  excused  from  further  performance,  and  may 
recover  for  part  performed. 

Cited  in  note  (30  L.  R.  A.  58)  on  right  to  rescind  or  abandon  contract  for 
other  party's  failure 


941  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  690 

Damages    for    breach    of    contract. 

Cited  in  note  (53  L.  R.  A.  75)  on  loss  of  proofs  as  element  of  damages  for 
breach  of  contract. 

5  L.  R.  A.  684,  CASE  v.  LOFTUS,  14  Sawy.  213,  39  Fed.  730. 
Riparian    owner's    rights    below    high-water    mark. 

Cited  in  Kenyon  v.  Knipe,  46  Fed.  312,  holding  Federal  question  not  raised  by 
grant  of  land  on  shore  of  navigable  bay  as  to  title  below  high-water  mark;  Baer 
v.  Moran  Bros.  Co.  2  Wash.  611,  27  Pac.  470,  holding  grant  of  land  upon  tide 
water  does  not  extend  beyond  high-water  mark;  Eisenbach  v.  Hatfield,  2  Wash, 
248,  12  L.  R.  A.  640,  26  Pac.  539,  holding  littoral  proprietor  on  shore  of  sea  can- 
not extend  wharf  below  high-water  mark;  San  Francisco  Sav.  Union  v.  R,  G.  R, 
Petroleum  &  Min.  Co.  144  Cal.  137,  66  L.R.A.  245,  103  Am.  St.  Rep.  72,  77  Pac. 
823,  1  A.  &  E.  Ann.  Cas.  182,  holding  the  fee  to  land  between  mean  high-water 
mark  and  low-water  mark,  where  the  tide  ebbs  and  flows,  on  an  ocean  coast, 
belongs  to  the  state  in  which  the  abutting  land  is  situate;  Ferry  Pass  Inspectors' 

6  Shippers'   Asso.  v.   Whites  River  Inspectors'   &  Shippers'  Asso.   57   Fla.  403, 
22  L.R.A.  (X.S.)   349,  48  So.  643,  holding  the  exclusive  rights  of  a  riparian  owner 
are  such  as  are  necessary  for  the  use  and  enjoyment  of  his  abutting  property  and 
business  lawfully  conducted  thereon  and  these  rights  may  not  be  so  exercised  as 
to  injure  others  in  their  lawful  rights. 

Cited  in  footnotes  to  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Ramsey,  8  L.  R.  A.  559, 
which  holds  title  to  land  under  navigable  river  in  state;  Webb  v.  Demopolis,  21 
L.  R.  A.  62,  which  holds  riparian  owner's  title  extends  to  low-water  mark  on  nav- 
igable river;  Farist  Steel  Co.  v.  Bridgeport,  13  L.  R.  A.  590,  which  requires  com- 
pensation to  riparian  owner  on  appropriation  of  land  by  city  in  establishing  har- 
bor lines;  McBurney  v.  Young,  29  L.  R.  A.  539,  which  defines  low-water  mark  as 
ordinary  low-water  mark;  Gilbert  v.  Eldridge,  13  L.  R.  A.  411,  which  authorizes 
the  separation  from  upland  of  riparian  right  to  reclaim  land  under  shallow  water. 

Cited  in  notes  (8  L.  R.  A.  90)  on  title  to  soil  below  ordinary  high-water  mark; 
(12  L.  R.  A.  638)  on  riparian  rights;   (40  L.  R.  A.  602)  on  right  of  owner  of  up- 
land to  access  to  navigable  water;    (45  L.  R.  A.  239)    on  title  to  land  between 
high-water  and  low-water  marks. 
Power  of  Congress  over  territories. 

Cited  in  Higgins  v  Brown,  20  Okla.  399,  1  Okla.  Crim.  Rep.  75,  94  Pac.  703, 
holding  congress  exercises  the  combined  power  of  the  national  and  state  govern- 
ments in  territories;  Coyle  v.  Smith,  28  Okla.  151,  113  Pac.  944,  to  the  point 
that  tide  lands  upon  admission  of  state  to  union  belongs  to  state  where  not  dis- 
posed of  prior  to  such  admission. 

Cited  in  note  (1  L.R.A. (N.S.)  746)  on  federal  grant  of  land  under  navigable 
water  in  territories. 

5  L.  R.  A.  690,  FARGO  v.  MILLER,  150  Mass.  225,  22  N.  E.  1003. 
Time   of  ascertaining  remaindermen. 

Cited  in  Wood  v.  Bullard,  151  Mass.  335,  7  L.  R.  A.  309,  25  X.  E.  67,  holding 
devise  over  after  trust  fund  to  wife,  to  testator's  "heirs  at  law  then  surviving." 
referred  to  survivors  at  time  of  wife's  death;  Codman  v.  Krell,  152  Mass.  217,  25 
N.  E.  90,  holding  remainder  to  children,  or  to  their  heirs  if  dying  before  life  ten- 
ant, as  if  they  had  survived,  refers  to  heirs  living  at  death  of  life  tenant;  Proctor 
v.  Clark,  154  Mass.  48;  Peck  v.  Carlton,  lf>4  -Mass.  234,  28  X.  E.  166,  holding  re- 
mainder to  testators  heirs  at  death  of  wife,  as  if  testator  had  survived,  referred 
to  heirs  living  at  wife's  death;  Pollock  v.  Farnham,  156  Mass.  391,  31  X.  E.  298, 
holding  remainders  after  death  of  testator's  sister,  under  language  of  will  did  not 


5  L.R.A.  690j  L.  R.  A.  CASES  AS  AUTHORITIES.  942 

vest  until  death  of  sister;  Wason  v.  Ranney,  167  Mass.  160,  45  X.  E.  85,  holding 
deed  of  life  estate  to  land  with  remainder  to  grantor's  heirs,  referred  to  heirs  at 
grantor's  death;  Bigelow  v.  Clap,  166  Mass.  91,  43  N.  W.  1037,  holding  that  pro- 
vision in  will  for  division  of  residue  at  death  of  daughter  among  children  of 
nephews  and  nieces  "then  living"  refers  to  time  of  death  of  such  .daughter;  Eager 
v.  Whitney,  163  Mass.  466,  40  N.  E.  1046,  holding  directions  for  termination  of 
trust  at  certain  date  and  distributions  to  legal  representatives  refer  to  represen- 
tatives at  date  of  distribution;  Keniston  v.  Mayhew,  169  Mass.  169,  47  N.  E.  612, 
holding  remainder  to  testatrix's  kin  after  life  estate  to  sister,  to  be  determined 
as  of  time  of  testatrix's  death;  Rotch  v.  Loring,  169  Mass.  200,  47  N.  E.  660,  hold- 
ing life  tenant  entitled  to  share  in  remainder  after  life  estate,  as  one  of  heirs  liv- 
ing at  testator's  death;  Welch  v.  Brimmer,  169  Mass.  212,  47  N.  E.  699,  holding 
that  devise  of  estate  on  death  of  son  without  issue,  to  persons  "who  shall  be" 
testator's  heirs,  referred  to  heirs  at  son's  decease;  Heard  v.  Read,  169  Mass.  223, 
47  N.  E.  778,  holding  present  tendency  against  absolute  rules  of  construction,  to 
give  effect  to  testator's  intent;  Hills  v.  Barnard,  152  Mass.  72,  9  L.  R.  A.  217,  25 
N.  E.  96,  holding  that  issue  of  living  issue  of  deceased  parent  do  not  take  under 
devise  of  parent's  share  to  issue  of  any  deceased  legatee;  Johnson  v.  Askey,  190  111. 
63,  60  N.  E.  76,  contruing  remainder  after  death  of  testator's  only  daughter  with- 
out issue,  which  was  "to  revert  back"  to  testator's  heirs,  to  go  to  heirs  living  at 
daughter's  death;  Boston  Safe  Deposit  &  T.  Co.  v.  Blanchard,  196  Mass.  40,  81 
N.  E.  654,  holding  estates  arising  under  a  will  should  be  treated  as  vesting  im- 
mediately unless  testator  has  manifested  by  clear  language  an  opposite  intent; 
Sias  v.  Chase,  207  Mass.  375,  93  N.  E.  802,  holding  that  only  those  persons  who 
survive  death  of  life  tenant  take  where  under  will  the  fund  does  not  take  definite 
form,  with  amount  of  it  fixed,  until  after  such  death. 

Cited  in  notes  (33  L.R.A.  (X.S.)  3,  16,  40,  51)  on  time  for  ascertaining  who 
take  under  gift  over  to  testator's  "heirs,"  "next  of  kin,"  etc.;  (25  Eng.  Rul.  Cas. 
613)  on  time  of  vesting  of  gift  by  will  to  such  of  a  class  as  fulfill  a  certain  condi- 
tion; (25  Eng.  Rul.  Cas.  695)  on  time  of  vesting  of  contingency  over  to  testator's 
heirs  or  next  of  kin. 
Who  are  next  of  kin  and  heirs. 

Cited  in  Duffy  v.  Hargan,  62  N.  J.  Eq.  589,  50  Atl.  678,  holding  children  of 
deceased  sister  entitled  to  share  with  mother's  brothers;  Proctor  v.  Clark,  154 
Mass.  48,  12  L.  R.  A.  724,  27  N.  E.  673,  holding  under  devise  of  remainder  to 
testator's  brother  if  he  survives  life  tenant,  or,  if  deceased,  to  his  "then  heirs," 
deceased  brother's  widow  entitled  to  take  widow's  share  under  Massachusetts  law ; 
Codman  v.  Brooks,  167  Mass.  504,  46  N.  E.  102,  holding  next  of  kin  under  United 
States  statute  referred  to  those  living  at  date  of  act  of  Congress. 

Cited  in  notes  (15  L.R.A.  300)  on  who  are  next  of  kin;  (28  L.R.A.  (N.S.)  481) 
on  right  of  persons  claiming  through,  to  participate  with  those  standing  in  equal 
degree  of  relationship  with  deceased  relative,  in  provision  for  "next  of  kin,"  etc. 

5  L.  R.  A.  693,  CONROW  v.  LITTLE,  115  N.  Y.  387,  22  X.  E.  346. 
Creditor's     election     of     remedy. 

Cited  in  Robb  v.  Vos,  155  U.  S.  41,  39  L.  ed.  62,  15  Sup.  Ct.  Rep.  4,  holding 
party  who  claimed  proceeds  of  sale  in  hands  of  one  acting  as  his  attorney  es- 
topped to  set  aside  sale;  Garrett  v.  John  V.  Farwell  Co.  102  111.  App.  36,  holding 
party  cannot  insist  that  contract  is  in  full  force  without  abandoning  suit  brought 
to  rescind  that  contract;  Thomas  v.  Watt,  104  Mich.  206.  62  X.  W.  345,  holding 
that  debtor,  by  suit  against  creditor  to  recover  surplus  above  amount  for  which 
property  in  bill  of  sale  sold,  elected  to  treat  title  as  in  creditor;  Colvin  v.  Shaw, 
79  Hun,  60,  29  N.  Y.  Supp.  644,  holding  election  to  relinquish  right  in  mortgaged 


943  I"  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  693 

premises  not  established;  Mills  v.  Parkhurst,  30  N.  Y.  S.  R.  141,  9  X.  Y.  Supp. 
109,  holding  that  creditor  seeking  to  set  aside  assignment  of  his  debtor  cannot 
participate  in  distribution  of  assigned  estate;  Central  Xat.  Bank  v.  White,  47  N. 
Y.  S.  R.  305,  19  N.  Y.  Supp.  820,  holding  election  of  remedies  not  shown;  Carroll 
v.  Fethers,  102  Wis.  443,  78  N.  W.  604,  holding  defendant  in  action  for  conversion 
may  set  up  former  action  to  recover  same  money  on  implied  contract  showing 
conversion  waived;  Johnson-Brinkman  Commission  Co.  v.  Missouri  P.  R.  Co. 
126  Mo.  351,  26  L.  R.  A.  842,  footnote  p.  840,  47  Am.  St.  Rep.  675,  28  S.  W.  870, 
holding  mere  commencement  of  attachment  suit  not  binding  election  of  remedy; 
Smith  v.  Gilmore,  7  App.  D.  C.  201,  holding  that  application  to  probate  court  by 
original  vendor  of  conditionally  sold  piano,  to  collect  price  from  estate  of  vendee, 
precludes  recovering  piano  from  purchaser  at  auction  sale;  Terry  v.  Munger,  121 
N.  Y.  167,  8  L.  R.  A.  219,  18  Am.  St.  Rep.  803,  24  N.  E.  272,  holding  beginning 
of  action  all  that  was  necessary  to  show  election  of  remedy;  Hurst  v.  Trow  Print- 
ing &  Bookbinding  Co.  2  Misc.  365,  22  N.  Y.  Supp.  371,  holding  rescission  of 
agreement  terminated  it  only  as  of  time  of  notice  of  rescission  and  did  not  void 
notes  for  work  already  performed  under  it;  Brady  v.  Cassidy,  9  Misc.  114,  29  N. 
Y.  Supp.  45,  holding  complete  delivery  of  goods  waived  by  election  to  require 
damages  from  nondelivery  to  be  offset  against  price  of  goods  received;  Munson  v. 
Magee,  22  App.  Div.  346,  47  N.  Y.  Supp.  942,  holding  that  one  who  had  taken  risk 
as  to  validity  of  his  contract  with  a  corporation  cannot  change  his  position  upon 
learning  of  its  voidable  position,  so  as  to  throw  loss  on  third  party;  Genet  v. 
Delaware  &  H.  Canal  Co.  28  App.  Div.  333,  51  N.  Y.  Supp.  377,  holding  that  party 
to  contract  waives  right  to  terminate  on  ground  of  violation  of  conditions  by 
bringing  action  for  breach ;  Deitz  v.  Field.  10  App.  Div.  429,  41  N.  Y.  Supp.  1087, 
holding  pledgeor,  with  knowledge  of  facts,  who  brings  action  for  conversion 
against  pledgee  after  rehypothecation,  bound  by  election  of  remedy;  Marx  v.  Ci- 
ancimino,  59  App.  Div.  571,  69  N.  Y.  Supp.  672,  holding  commencement  by  as- 
signee of  action  for  conversion  against  sheriff,  who  has  lived  upon  property  under 
attachment,  estops  him  from  asserting  invalidity  of  levy;  Droege  v.  Ahrens  &  O. 
Mfg.  Co.  163  N.  Y.  470,  57  N.  E.  747,  holding  that  filing  of  verified  proof  of 
claim  with  assignee  of  vendee  with  knowledge  of  latter's  fraud  amounts  to  affirma- 
tion of  sale  by  vendor ;  Farmers'  Loan  &  T.  Co.  v.  Toledo  &  S.  H.  R.  Co.  4  C.  C.  A. 
569,  9  U.  S.  App.  469,  54  Fed.  766,  holding  that  minority  stockholder  cannot  take 
personal  judgment  for  value  of  stock,  the  beneficial  ownership  of  which  he  in- 
tended to  retain ;  Ke  Linforth,  87  Fed.  390,  holding  creditor  can  obtain,  in  pending 
bankruptcy  proceeding,  permission  to  foreclose,  in  state  court,  mortgage  upon 
part  of  bankrupt  estate;  A.  C.  Nellis  Co.  v.  Nellis,  62  Hun,  68,  16  N.  Y.  Supp.  545, 
holding  that  action  can  be  brought  for  fraud  in  obtaining  money  after  sale  of 
stocks  hypothecated  to  secure  it;  Johnson-Brinkman  Commission  Co.  v.  Missouri 
P.  R.  Co.  52  Mo.  App.  414,  holding  that  party  with  knowledge  of  facts,  having 
elected  to  ratify  sale,  cannot  maintain  replevin;  Heidelbach  v.  National  Park 
Bank.  87  Hun,  126,  33  N.  Y.  Supp.  794,  holding  that  plaintiff  under  contract 
can  sue  one  party  for  debt  and  at  same  time  enforce  right  as  owner  of  goods  in 
another's  possession;  Terry  v.  Munger,  121  N.  Y.  169,  8  L.  R.  A.  219,  18  Am.  St. 
Rep.  803.  24  N.  E.  272.  holding  sale  of  property  by  party,  by  virtue  of  very  trans- 
action which  he  seeks  to  treat  as  conversion  by  stranger,  bar  to  action  against  lat- 
ter; Schoenenmn  v.  Chamberlin,  55  App.  Div.  355,  67  N.  Y.  Supp.  284,  holding 
vendor  may  maintain  replevin  against  assignee  of  vendee  for  portion  of  goods,  on 
fraudulent  sale,  and  action  against  vendee  for  balance  on  the  contract;  Hess  v. 
Smith,  16  Misc.  55,  37  X.  Y.  Supp.  635,  holding  action  for  conversion  barred  by 
prior  action  on  contract  for  same  property;  McXutt  v.  Hilkins,  80  Hun,  238. 
29  N.  Y.  Supp.  1047,  holding  action  for  conversion,  in  which  judgment  was 


5  L.R.A.  693]  L.  R.  A.  CASES  AS  AUTHORITIES.  944 

rendered  for  defendant,  not  bar  to  action  between  same  parties  for  breach  of 
contract  of  sale;  Davis  v.  Butters  Lumber  Co.  132  X.  C.  239,  43  S.  E.  650,  deny- 
ing creditor's  right  to  disaffirm  discounts  after  commencement  of  suit  to  recover 
proceeds  of  drafts  discounted;  Re  Hildebrant,  120  Fed.  996,  holding  filing  of 
claim  with  trustee  election  to  affirm  contract  of  sale,  depriving  creditor  of  right 
to  demand  return  of  goods  in  bankrupt's  possession;  Genet  v.  Delaware  &  H. 
Canal  Co.  170  N.  Y.  296,  63  X.  E.  350  (dissenting  opinion),  majority  holding  that 
judgment  dismissing  complaint  does  not  bar  action  for  same  subject-matter  be- 
tween same  parties  unless  on  merits;  Bramhall,  Deane  Co.  v.  International  Mer- 
cantile Marine  Co.  145  Fed.  682,  as  to  when  remedies  inconsistent;  Board  of 
Education  v.  Day,  128  Ga.  165,  57  S.  E.  359,  as  to  doctrine  of  election  between 
inconsistent  remedies;  Davenport  v.  Walker,  132  App.  Div.  99,  116  X.  Y.  Supp. 
411;  Clarke  v.  Mercantile  Trust  Co.  110  App.  Div.  903,  95  X.  Y.  Supp.  1118, — 
holding  election  once  made  conclusive;  Lomb  v.  Richard  (45  Misc.  130,  91  X. 
Y.  Supp.  881,  holding  a  cause  of  action  for  breach  of  contract  cannot  be  joined 
with  one  to  rescind  the  contract  for  fraud;  Parker  v.  Murphy,  56  Misc.  544, 
107  X.  Y.  Supp.  202,  holding  where  an  insurance  company,  reserving  the  right 
either  to  lapse  a  policy  for  nonpayment  of  premiums  or  to  continue  the  policy  in 
force,  elects  to  lapse  it  and  the  policy  holder  acting  upon  that  election  sends  to 
the  company  his  check  for  the  proportionate  amount  demanded  on  his  premium 
note,  the  company  is  bound  by  the  election  and  cannot  maintain  an  action  to 
recover  full  amount  of  note;  Herbert  v.  Wagg,  27  Okla.  681,  117  Pac.  209, 
holding  that  adoption  of  one  of  two  conflicting  remedies  is  conclusive;  Hewitt  v. 
Hayes,  205  Mass.  364,  137  Am.  St.  Rep.  448,  91  X.  E.  332,  holding  that  adoption 
of  one  course  by  claimant  against  bankrupt's  estate  where  inconsistent  remedies 
exist  is  bar  to  pursuit  of  other  remedy;  Main  v.  Procknow,  131  Wis.  282,  111 
N.  W.  508,  holding  a  buyer  claiming  a  rescission  of  the  contract  of  sale  because 
of  breach  by  seller  cannot  at  the  same  time  claim  damages  growing  out  of  the 
breach;  Pfeiffer  v.  Marshall,  136  Wis.  62,  116  X.  W.  871,  holding  that  purchasers 
of  land,  by  prosecuting  to  judgment  an  action  for  reformation  of  the  contract,, 
two  years  after  learning  that  representations  of  the  vendor  were  false,  waived  the 
fraud  and  elected  to  stand  on  the  contract;  Babcock,  C.  &  Co.  v.  Urquhart,  53 
Wash.  174,  101  Pac.  713,  holding  doctrine  of  election  of  remedies  has  no  applica- 
tion where  remedy  chosen  is  not  available,  and  a  remedy  is  not  available  where 
there  is  a  good  defense  to  it. 

Cited  in  footnotes  to  Barndt  v.  Frederick,  11  L.  R.  A.  199,  which  holds  conduct- 
ing trial  on  theory  suggested  by  court  conclusive  election  of  form  of  action; 
Crompton  v.  Beach,  18  L.  R.  A.  187,  which  holds  that  conditional  vendor's  exercise 
of  option  to  enforce  payment  of  note  defeats  right  to  retake  property;  Miller  v. 
Hyde,  25  L.  R.  A.  42,  which  holds  replevin  of  horse  not  defeated  by  prior  attach- 
ment suit  for  trover;  Walden  Xat.  Bank  v.  Birch,  14  L.  R.  A.  211,  which  hold* 
recovery  of  judgment  against  bank  cashier  on  note  secured  by  bank  stock  not 
bar  to  action  on  bond  for  misappropriating  stock;  Barchard  v.  Kohn,  29  L.  R.  A. 
803,  which  holds  lien  of  chattel  mortgage  on  exempt  property  not  waived  by  ob- 
taining judgment  on  notes  secured,  and  levying  on  mortgaged  property. 

Cited  in  notes  (8  L.  R.  A.  218)  on  election  of  remedy  for  conversion;  (13  L.  R. 
A.  91,  92)  on  what  is  conclusive  evidence  of  election;  (15  L.  R.  A.  90)  on  effect 
of  election  of  remedies  in  case  of  fraudulent  purchase;  (34  L.R.A.(X.S.)  315)  on 
bringing  suit  not  prosecuted  to  judgment  as  election  of  remedies;  (44  L.  ed. 
U.  S.  1033)  on  effect  of  election  of  remedies  in  case  of  fraudulent  purchase. 

Distinguished  in  Henderson  v.  Bartlett,  32  App.  Div.  440.  53  X.  Y.  Supp.  149, 
holding  action  brought  on  original  agreement  with  firm,  for  which  an  agreement 
by  member  of  firm  has  been  substituted,  not  election  of  remedies;  Grossman  \. 


945  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  702 

Universal  Rubber  Co.  127  X.  Y.  37,  13  L.  R.  A.  94,  27  N.  E.  400,  holding  proceed- 
ings by  attachment  in  another  state  not  an  election  of  remedies,  but  in  affirmance 
of  sale,  and  not  inconsistent  with  action  on  note;  Crossman  v.  Universal  Rubber 
Co.  25  Jones  &  S.  468,  8  N.  Y.  Supp.  539,  holding  action  cannot  be  maintained  on 
notes  given  in  consideration  for  goods  after  contract  of  sale  rescinded  for  fraud; 
Water,  Light  &  Gas  Co.  v.  Hutchinson,  19  L.R.A.(X.S.)  220,  90  C.-C.  A.  547,  160 
Fed.  43,  holding  where  plaintiff  sued  a  city  on  an  express  contract  for  lighting 
and  was  defeated,  such  suit  did  not  constitute  an  election  of  remedies  precluding 
plaintiff  from  thereafter  maintaining  a  suit  on  a  quantum  meruit  for  reasonable 
value  of  the  service  rendered ;  Central  Xat.  Bank  v.  White,  29  Jones  &  S.  273,  19 
N.  Y.  Supp.  820.  holding  action  by  stockbrokers  to  recover  from  fiduciary  on 
discovering  that  he  was  acting  for  himself  is  not  such  an  election  as  to  render 
them  liable  to  principal  whose  money  had  been  wrongfully  invested  by  fiduciary. 
Estoppel. 

Cited  in  Burnham  v.  Burnham,  119  Wis.  516,  97  N.  W.  176,  holding  one  de- 
prived of  right  to  annul  contract  of  settlement  after  affirmance  of  portion. 
When    lien     established. 

Cited  in  Jackson  v.  Xicol,  23  App.  Div.  141,  48  N.  Y.  Supp.  974,  holding  priority 
of  third  over  second  mortgage  established,  by  execution  of  instrument  in  per- 
formance of  agreement  to  that  effect. 

Cited  in  footnote  to  Griggs  v.  Stone,  7  L.  R.  A.  48,  which  holds  work  done  on 
copper  shells  creates  no  lien  on  machines  sold  as  complete  without  shells. 

5  L.  R.  A.  696,  RIGGS  v.  TREES,  120  Ind.  402,  22  N.  E.  254. 
Effect    of    delivery. 

Cited  in  footnotes  to  Martin  v.  Flaharty,  19  L.  R.  A.  243,  which  holds  manual 
delivery  of  deed  not  essential;  Cook  v.  Patrick,  11  L.  R.  A.  573,  which  holds  de- 
livery of  deed  to  third  person  paying  for  property,  sufficient  delivery  to  grantees ; 
Carter  v.  Moulton,  20  L.  R.  A.  309,  which  holds  delivery  of  note  to  one  joint  maker 
not  an  escrow. 

Cited  in  notes  (10  L.  R.  A.  469)  on  what  constitutes  escrow;  (10  L.  R.  A.  471) 
on  remedy  of  parties  in  cases  of  escrow;  (130  Am.  St.  Rep.  949)  on  escrows. 

5  L.  R.  A.  698,  GILLESPIE  v.  CAMPBELL,  39  Fed.  724. 
Rigrhts    of    accommodation    indorser. 

Cited  in  Earle  v.  Enos,  130  Fed.  469,  holding  bank's  knowledge  of  want  of  con- 
sideration no  defense  to  action  against  maker  on  accommodation  note. 

Cited  in  footnote  to  De  Pauw  v.  Bank  of  Salem,  10  L.  R.  A.  46,  which  holds 
one  indorsing  draft  before  delivery  entitled  to  notice  of  dishonor. 

Cited  in  notes  (28  L.R.A.(N.S.)  1040,  1044,  1045)  on  rights  inter  se  of  accom- 
modation parties  to  commercial  paper;  (4  Eng.  Rul.  Cas.  548)  on  presumptive 
order  of  liability  among  accommodation  indorsers. 

5  L.  R.  A.  702,  STUDER  v.  BLEISTEIX,  115  X.  Y.  316,  22  N.  E.  243. 
Acceptance;    effect    of. 

Cited  in  J.  Thompson  Mfg.  Co.  v.  Gunderson,  106  Wis.  455,  49  L.  R.  A.  862,  82 
X.  W.  299;  Smith  v.  Servis,  33  N.  Y.  S.  R.  434,  11  X.  Y.  Supp.  301;  Durbrow  & 
H.  Mfg.  Co.  v.  Cuming,  35  App.  Div.  378.  54  X.  Y.  Supp.  818,— holding  that  reten- 
tion of  goods  manufactured  under  contract  precludes  recovery  for  discoverable 
defects,  in  absence  of  collateral  warranty:  Schuchman  v.  Winterbottom,  26  Jones 

6  S.   110,  9  X.  Y.  Supp.  733,  holding  nonconformity  to  contract  no  defense  to 
action  for  price  where  goods  accepted:  Carleton  v.  Jenks,  26  C.  C.  A.  268,  47  U. 
S.  App.  734,  80  Fed.  940,  holding  that  acceptance  of  boiler  precludes  recovery  for 

L.R.A.  Au.  Vol.  I.— €0. 


5  L.R.A.  702]  L.  R.  A.  CASES  AS  AUTHORITIES.  946 

nonperformance  of  contract,  apparent  on  inspection;  Meagley  v.  Hoyt,  125  N.  Y. 
773,  26  N.  E.  719,  raising,  without  deciding,  question  whether  acceptance  of  tallow 
precludes  recovery  for  adulteration  discoverable  on  inspection;  Taylor  v.  Saxe, 
134  N.  Y.  68,  31  N.  E.  258,  holding  acceptance  of  goods  inferior  to  those  ordered 
precludes  recovery;  Smith  v.  Coe,  170  N.  Y.  170,  63  N.  E.  57,  Affirming  55  App. 
Div.  591,  67  N.  Y.  Supp.  350,  holding  no  warranty,  other  than  against  latent 
defects,  survives  acceptance  of  goods  manufactured  according  to  specifications; 
Carleton  v.  Lombard,  A.  &  Co.  149  N.  Y.  151,  43  N.  E.  422,  Reversing  72  Hun, 
261,  25  N.  Y.  Supp.  570,  holding  that  implied  warranty  of  freedom  from  latent 
defects  arising  from  process  of  manufacture  survives  acceptance;  Still  well,  B.  &  S. 
V.  Co.  v.  Biloxi  Canning  Co.  78  Miss.  787,  29  So.  513,  holding  one  retaining  wrar- 
ranted  machinery  liable  for  purchase  price,  less  damages  for  breach  of  warranty; 
Hooper  v.  Story,  79  Hun,  55,  29  N.  Y.  Supp.  639,  holding  that  collateral  warranty 
of  capacity  of  machine,  surviving  acceptance,  does  not  include  visible  defects; 
Baylis  v.  Weibezahl,  42  Misc.  182,  85  N.  Y.  Supp.  355,  denying  that  warranty 
survives  acceptance  of  tool  when  defects  patent;  Ideal  Wrench  Co.  v.  Garvin  Macli. 
Co.  92  App.  Div.  202,  87  N.  Y.  Supp.  41,  holding  warranty  does  not  survive 
acceptance  under  contract  to  manufacture  wrenches  "equal  to  model;"  Cherryvale 
Water  Co.  v.  Cherryvale.  65  Kan.  228,  69  Pac.  176,  holding  passage  of  ordinance 
to  buy  waterworks  with  knowledge  of  unsanitary  condition  is  bar  to  action  to 
deprive  company  of  franchise;  Redlands  Orange  Growers  Asso.  v.  Gorman,  76  Mo. 
App.  195  (dissenting  opinion),  majority  holding  that  acceptance  of  goods  de- 
livered after  time  stipulated  does  not  preclude  recovery  of  damages  for  delay; 
Mack  v.  Snell,  140  N.  Y.  205,  37  Am.  St.  Rep.  534,  35  N.  E.  493  (dissenting 
opinion),  majority  holding  owner  delivering  materials  to  be  manufactured  accord- 
ing to  sample  not  precluded  by  acceptance  from  claiming  nonperformance. 

Cited  in  footnote  to  Ontario  Deciduous  Fruit  Growers'  Asso.  v.  Cutting  Fruit 
Packing  Co.  53  L.  R.  A.  681,  which  requires  buyer  to  pay  for  fruit  received  under 
contract,  knowing  full  amount  cannot  be  delivered. 

Cited  in  notes  (12  L.R.A.  399)  on  effect  of  acceptance  of  goods  under  contract 
of  sale;  (35  L.R.A. (N.S.)  503)  on  acceptance  of  goods  with  knowledge  of  breach 
of  warranty  as  waiver;  (115  Am.  St.  Rep.  257)  on  acceptance  of  work  as  waiver 
of  imperfect  performance. 

Distinguished  in  Zabriskie  v.  Central  Vermont  R.  Co.  131  N.  Y.  78,  29  N.  E. 
1006,  Affirming  36  N.  Y.  S.  R.  664,  13  N.  Y.  Supp.  735,  holding  warranty  that 
coal  should  correspond  with  sample  survives  acceptance;  Hale  Bros.  v.  Milliken, 
142  Cal.  141,  75  Pac.  653.  holding  allegation  that  one  party  has  performed  con- 
tract does  not  imply  intention  to  release  other  from  nonperformance. 
Descriptive  words  as  collateral  warranty  surviving;  acceptance. 

Cited  in  McLeod  v.  Andrews  &  J.  Co.  116  111.  App.  649;  Staiger  v.  Soht,  116 
App.  Div.  877,  102  N.  Y.  Supp.  342;  James  v.  Libby,  44  Misc.  215,  88  N.  Y. 
Supp.  812, — holding  an  acceptance  by  the  vendee  of  personal  property  manu- 
factured under  an  executory  contract  of  sale,  after  a  full  and  fair  opportunity 
for  inspection  estops  him,  tn  the  absence  of  fraud,  from  thereafter  raising  an  ob- 
jection as  to  the  visible  defects  and  imperfections  whether  discovered  or  not, 
unless  such  delivery  and  acceptance  are  accompanied  by  some  warranty  of  quality 
manifestly  intended  to  insure  acceptance;  Lestershire  Lumber  &  Box  Co.  v.  W. 
M.  Ritter  Lumber  Co.  82  C.  C.  A.  527,  153  Fed.  574,  holding  a  provision  of  an 
executory  contract  for  the  sale  of  lumber  that  "it  is  understood  that  this  stock 
will  be  dry  and  in  condition  to  work  on  arrival"  if  construed  as  a  warranty,  is 
not  one  which  survived  the  acceptance  and  retention  of  the  lumber  by  the  pur- 
chaser, the  condition  of  the  lumber  being  obvious  on  inspection. 


947  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  709 

Cited  in  note  (25  L.R.A.  (N.S.)  364)  a8  to  whether  words  constituting  basis  of 
implied  warranty  of  quality  may  be  considered  an  express  warranty. 

Distinguished  in  Bull  v.  Bath  Iron  Works,  75  App.  Div.  385,  78  N.  Y.  Supp. 
181,  holding  contract  to  build  vessel  of  certain  speed  contains  warranty  surviving 
acceptance. 
Warranty  on  sale  by  sample. 

Cited  in  notes  (70  L.R.A.  665)  on  warranty  on  sale  of  goods  by  sample;  (29 
L.R.A.  (N.S.)  141)  as  to  whether  sale  by  sample  excludes  implied  warranty  other 
than  of  conformity  thereto. 

5  L.  R.  A.  707,  CADMAN  v.  MARKLE,  76  Mich.  448,  43  N.  W.  315. 
Recovery    on    quantum    meralt. 

Cited  in  Parker  v.  Macomber,  17  R.  I.  679,  16  L.  R.  A.  861,  24  Atl.  464,  holding 
services  might  be  recovered  for  on  quantum  meruit  when  entire  contract  pre- 
vented by  death  of  wife  of  party;  Isham  v.  Parker,  3  Wash.  776,  29  Pac.  835, 
holding  promise  to  pay  for  services  as  attorney  implied,  notwithstanding  special 
agreement  to  pay  for  other  services;  Wright  v.  Broome,  67  Mo.  App.  36,  holding 
that  recovery  on  quantum  meruit  might  be  had  for  care  of  horses  if  failure  to 
sign  contract  not  due  to  one  performing  services;  McCurdy  v.  Dillon,  135  Mich. 
682,  98  N.  W.  746,  holding  where  the  only  contract  made  between  attorney  and 
client  for  the  former's  compensation  was  void,  he  was  entitled  to  recover  what 
his  services  were  reasonably  worth;  Wilmington  v.  Bryan,  141  N.  C.  691,  54  S.  E. 
543  (dissenting  opinion),  as  to  when  recovery  can  be  had. 

Cited  in  footnote  to  Hildebrand  v.  American  Fine  Art  Co.  53  L.  R.  A.  826, 
which  sustains  right  to  recover  pro  rata  on  entire  contract  of  employment  ter- 
minated by  employer  for  cause. 

Cited  in  notes  (5  L.R.A. (N.S.)  528)  on  recovery  on  quantum  meruit  by  servant 
discharged  for  cause;  (5  L.R.A. (N.S.)  585)  on  what  constitutes  rescission  of 
contract  of  employment  authorizing  quantum  meruit;  (38  L.R.A. (N.S.)  1204) 
on  right  of  attorney  to  recover  on  quantum  meruit  for  services  rendered  under 
illegal  or  champertous  contract;  (16  Am.  St.  Rep.  793)  on  recovery  on  quantum 
meruit  on  prevention  of  performance  of  contract. 

Distinguished  in  Bristol  v.  Sutton,  115  Mich.  366,  73  N.  W.  424,  holding 
promise  to  pay  for  services  to  third  party  within  statute  of  frauds  not  implied 
by  knowledge  and  approval  of  services  performed. 

5  L.  R.  A.  709,  STATE  v.  PENNOYER,  65  N.  H.  113,  18  Atl.  878. 
Validity    of    discriminating:    statutes. 

Cited  in  State  v.  Randolph,  23  Or.  86,  17  L.  R.  A.  473,  37  Am.  St.  Rep.  655, 
31  Pac.  20 \_,  upholding  act  which  permits  those  practising  medicine  to  take  out 
license  without  examination;  Com.  v.  Wilson,  19  Pa.  Co.  Ct.  527,  6  Pa.  Dist.  R. 
632,  upholding  exemption  of  certain  classes  from  act  regulating  practice  of  medi- 
cine; Re  Day,  181  111.  81,  50  L.  R.  A.  522,  54  N.  E.  646,  holding  act  discriminating 
between  classes  of  law  students  in  application  for  admission  to  bar  invalid; 
JEx  parte  Bohen,  115  Cal.  378,  36  L.  R.  A.  622,  47  Pa«.  55,  holding  ordinance  dis- 
criminating as  to  persons  who  might  inter  in  cemetery,  invalid;  State  v.  Aldrich. 
,70  N.  H.  391,  85  Am.  St.  Rep.  631,  47  Atl.  602,  holding  statute  forbidding  per- 
sons of  over  twelve  years  to  ride  bicycles  on  sidewalks  valid;  State  v.  Griffin, 
39  N.  H.  33,  41  L.  R.  A.  184,  76  Am.  St.  Rep.  139,  39  Atl.  260,  holding  statute 
prohibiting  throwing  sawdust  into  lake  valid,  though  local;  Kennard  v.  Man 
•Chester,  68  N.  H.  62,  36  Atl.  553,  holding  taxation  of  owner  of  real  estate  accord- 
ing to  net  income  from  it  void  for  inequality;  Ricker's  Petition,  66  N.  H.  249, 


5  L.R.A.  709]  L.  R.  A.  CASES  A&  AUTHORITIES.  94S 

24  L.  R.  A.  759,  29  All.  559,  upholding  women's  right  to  apply  for  admission  to 
bar;  Opinion  of  the  Justices,  66  N.  H.  631,  33  Atl.  1076,  denying  power  of  state 
to  take  property  of  particular  railroad  company  for  public  use  on  payment  of 
less  than  its  value;  State  v.  Jackman,  69  N.  II.  330,  42  L.  R.  A.  440,  41  Atl.  347, 
holding  ordinance  requiring  snow  and  ice  to  be  removed  from  sidewalk  void  for 
inequality;  State  v.  Mitchell,  97  Me.  74,  94  Am.  St.  Rep.  481,  53  Atl.  887,  holding 
statute  exempting  from  license  fee  one  who  pays  $25.00  in  taxes  on  goods,  and 
requiring  it  of  those  paying  less,  void;  State  v.  Cohen,  73  N.  H.  545,  63  Atl.  928, 
holding  statute  licensing  dealers  in  junk  valid;  State  v.  Ramseyer,  73  N.  H.  35, 
58  Atl.  958,  6  A.  &  E.  Ann.  Gas.  445,  holding  statute  prohibiting  giving  away 
of  trading  stamps  invalid;  Opinion  of  Justices,  73  X.  H.  632,  6  A.  &  E.  Ann.  Cas. 
689,  as  to  equal  protection  of  laws  guaranteed  by  federal  constitution  being 
maintained  in  New  Hampshire;  Ex  parte  Whitley,  144  Cal.  176,  77  Pac.  879,  1  A. 

6  E.  Ann.  Cas.  13,  holding  legislation  presenting  regulations  under  which  only 
those  persons  possessing  proper  qualifications  shall  be  admitted  to  a  practice  or 
calling  requiring  special  skill  is  valid  exercise  of  police  power;  Adams  v.  Missis- 
sippi Lumber  Co.  84  Miss.  28,  36  So.  68,  holding  statute  imposing  privilege  tax 
on  each  land,  timber  or  mill  company  or  individual  providing  the  section  shall 
not  apply  to  sawmill  operators  who  do  not  ship  timber  or  lumber  out  of  state, 
violates  section  of  constitution  declaring  that  taxation  shall  be  equal  and  uniform 
throughout  state;   Crane  v.  Chicago  &  W.  I.  R.  Co.  233  111.  264,  84  N.  E.  222 
(dissenting  opinion),  as  to  the  correct  basis  of  classification. 

Cited  in  footnotes  to  Noel  v.  People,  52  L.  R.  A.  287,  which  holds  void  an  act 
giving  exclusive  privilege  to  sell  patent  medicines  to  registered  pharmacists; 
State  v.  Bair,  51  L.  R.  A.  776,  which  sustains  "statute  requiring  examination 
before  state  board  of  examiners,  five  years  practice,  or  certificate  from  medical 
school,  before  practising  medicine. 

Cited  in  notes  (14  L.  R.  A.  581)  on  constitutional  equality  of  privileges, 
immunities  and  protection;  (21  L.  R.  A.  791)  on  constitutionality  of  statutes 
restricting  contracts  and  business. 

Distinguished  in  Scholle  v.  State,  90  Md.  740,  50  L.  R.  A.  413,  46  Atl.  326, 
upholding  act  exempting  Army  and  Navy  surgeons  and  consulting  physicians 
from  other  states  from  requirement  as  to  license;  State  v.  Sharpless,  31  Wash. 
199,  96  Am.  St.  Rep.  893,  71  Pac.  737,  sustaining  act  dividing  barbers  into  classes 
and  operating  equally  upon  each  class. 

Disapproved  in  State  v.  Bair,  112  Iowa,  470,  51  L.  R.  A.  778,  84  N.  W.  532, 
holding  act  requiring  certain  qualifications  for  practice  of  medicine  valid. 

5  L.  R.  A.  712,  EASTMAN  v.  PROVIDENT  MUT.  RELIEF  ASSO.  65  N.  H.  176, 

23  Am.  St.  Rep.  29,  18  Atl.  745. 
Reformation     of    contracts. 

Cited  in  Park  Bros.  &  Co.  v.  Blodgett  &  C.  Co.  64  Conn.  37,  29  Atl.  133,  and 
Ryder  v.  Ryder,  19  R.  I.  191,  32  Atl.  919,  holding  equity  will  correct  mistake  in 
use  of  terms  not  expressing  parties'  intention;  Parish  v.  Camplin,  139  Ind.  14, 
37  N.  E.  607,  holding  equity  will  reform  deed  from  body  of  which  grantor's  name 
was  omitted;  Sparta  School  Twp.  v.  Mend  ell,  138  Ind.  195.  37  N.  E.  604,  holding 
equity  will  reform  mistake  in  school  teacher's  contract  executed  in  name  of  civil 
township;  Webb  v.  Hammond,  31  Ind.  App.  618,  68  N.  E.  916,  refusing  to  reform 
contract  of  settlement  when  contract  not  before  court;  Eustis  Mfg.  Co.  v.  Saco 
Brick  Co.  198  Mass.  219,  84  N.  E.  449.  holding  equity  will  grant  relief  from  a 
mistake  of  fact  and  reform  the  contract  to  conform  to  intent  of  parties. 

Cited  in  footnote  to  Bigham  v.  Madison,  47  L.  R.  A.  267,  which   authorizes 


«49  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  710 

rescission  for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor. 

Cited  in  notes  in  (11  L.R.A. (N.S.)  357)  on  reformation  of  insurance  policy 
for  mistake  of  soliciting  agent;  (12  L.R.A. ( N.S. )  908)  on  action  on  policy  as 
bar  to  action  to  reform  it;  (28  L.R.A. (X.S.)  832)  on  reformation  for  mistake 
of  law  as  to  effect  of  instrument;  (65  Am.  St.  Rep.  487;  37  L.  ed.  U.  S.  457)  on 
reformation  of  contract  in  equity. 
Effect  of  adoption  of  agent's  act. 

Cited  in  McDonald  v.  Metropolitan  L.  Ins.  Co.  68  N.  H.  5,  73  Am.  St.  Rep.  548, 
38  Atl.  500,  holding  insurer,  ratifying  agent's  unauthorized  act,  chargeable  with 
knowledge  of  facts;  Perry  v.  Dwelling-House  Ins.  Co.  67  N.  H.  296,  68  Am.  St. 
Rep.  668,  33  Atl.  731,  holding  agent's  knowledge  of  facts,  not  stated  in  application 
for  insurance,  binding  upon  insurer. 
Delay  excused  by  doubt  as  to  l:i\v. 

Cited  in  Hett  v.  Boston  &  M.  R.  Co.  69  N.  H.  141,  44  Atl.  910,  holding  delay 
in  delivering  goods  where  right  to  possession  doubtful,  until  legal  advice  obtained, 
not  conversion. 

5  L.  R.  A.  713,  HABENICHT  v.  LISSAK,  78  Cal.  351,  12  Am.  St.  Rep.  63,  20 

Pac.  874. 
Supplementary    proceedings. 

Cited  in  Herrlich  v.  Kaufmann,  99  Cal.  275,  37  Am.  St.  Rep.  50,  33  Pac.  857, 
holding  that  judgment  creditor  cannot  maintain  either  garnishment  proceeding 
or  bill  in  equity  to  reach  debt  due  judgment  debtor,  where  it  is  not  shown  that 
statutory  supplementary  proceedings  will  not  afford  relief;  Phillips  v.  Price,  153 
Cal.  148,  94  Pac.  617,  holding  where  a  legal  remedy  is  afforded  by  statute  pro- 
viding for  proceedings  supplementary  to  execution  they  must  be  pursued;  Matte- 
son  &  W.  Mfg.  Co.  v.  Conley,  144  Cal.  485,  77  Pac.  1042,  holding  them  a  substi- 
tute for  creditor's  bill;  Herrlich  v.  Kaufmann,  99  Cal.  275,  37  Am.  St.  Rep.  50, 
33  Pac.  857,  as  to  their  being  a  substitute  for  creditor's  bill. 
Property  subject  to  debts. 

Cited  in  Re  Hurlbutt,  68  C.  C.  A.  216,  135  Fed.  507;  Sparhawk  v.  Yerkes, 
142  U.  S.  12,  35  L.  ed.  917,  12  Sup.  Ct.  Rep.  104, — holding  a  seat  in  the  stock 
exchange  passes  to  assignees  in  bankruptcy  subject  to  rules  of  stock  board. 

Cited  in  footnote  to  Cleveland  Nat.  Bank  v.  Morrow,  38  L.  R.  A.  758,  which 
holds  perpetual  scholarship  in  college  in  consideration  of  donation,  not  property 
subject  to  payment  of  debts. 
Appointment  of  receiver. 

Cited  in  notes  (72  Am.  St.  Rep.  40)  as  to  when  appointment  of  receiver  is 
proper;  (10  Eng.  Rul.  Cas.  592)  on  right  to  appointment  of  receiver  on  inter- 
locutory application  in  judgment  creditor's  suit. 

5  L.  R.  A.  716,  ALLEN  v.  SOUTH  BOSTON  R.  CO.  150  Mass.  200,  15  Am.  St. 

Rep.  185,  22  N.  E.  917. 
Liability    of    corporations. 

Cited  in  Beacon  Trust  Co.  v.  Souther,  183  Mass.  417,  67  N.  E.  345,  holding 
corporation  liable  on  note  executed  by  president  without  authority,  when  proceeds 
used  in  corporate  business. 

Cited  in  note   (13  L.  R.  A.  193)   on  liability  of  corporation  for  misfeasance  of 
its  officers. 
—  For    stock    illegally    issued. 

Cited  in  First  Avenue  Land  Co.  v.  Parker,  111  Wis.  8,  87  Am.  St.  Rep.  841, 


5  L.R.A.  716]  L.  K.  A.  CASES  AS  AUTHORITIES.  950 

86  N.  W.  604,  holding  corporation  liable  to  bona  fide  purchaser  of  stock  illegally 
issued;  Cincinnati,  X.  0.  &  T.  P.  R.  Co.  v.  Citizens'  Xat.  Bank,  56  Ohio  St.  387r 
43  L.  R.  A.  786,  47  N.  E.  249,  holding  corporation  liable  to  bona  fide  purchaser 
of  stock  fraudulently  issued  by  proper  officers;  Citizens'  Street  R.  Co.  v.  Robbing, 
128  Ind.  461,  12  L.  R.  A.  502,  25  Am.  St.  Rep.  445,  26  X.  E.  116,  holding  bona 
fide  purchaser  not  affected  by  illegality  in  surrender  and  cancelation  of  original 
stock;  Havens  v.  Bank  of  Tarboro,  132  X.  C.  222,  95  Am.  St.  Rep.  627,  43  S.  E. 
639,  holding  bank  liable  to  pledgee  of  cashier  who  fraudulently  issued  to  himseli 
certificates  signed  by  president  in  blank;  American  Exchange  Xat.  Bank  v. 
Woodlawn  Cemetery,  120  App.  Div.  130,  105  X.  Y.  Supp.  305,  holding  liability 
may  be  based  upon  the  negligence  of  a  corporation  in  failing  to  supervise  and 
inspect  its  records  which  would  have  disclosed  that  certificates  of  stock  issued 
were  not  issued  in  place  of  certificates  surrendered. 

Cited  in  notes  (19  L.R.A.  331)  on  liability  of  corporation  for  fraud  or  forgery 
of  its  officers  in  the  issue  of  stock;  (87  Am.  St.  Rep.  848,  851,  852,  858)  on 
fraudulent  and  over- issued  corporate  stock. 

Distinguished  in  Farrington  v.  South  Boston  R.  Co.  150  Mass.  409,  5  L.  R.  A. 
850,  15  Am.  St.  Rep.  222,  23  X.  E.  109,  holding  certificate  of  stock,  fraudulently 
issued  by  officer  of  corporation  as  security  for  personal  debt,  invalid;  Dollar  Sav. 
Fund  &  T.  Co.  v.  Pittsburg  Plate  Glass  Co.  213  Pa.  311,  62  Atl.  916,  5  A.  &  E. 
Ann.  Cas.  248,  holding  where  plaintiff  loaned  money  on  a  certificate  of  stock  ou 
which  signature  of  transfer  agent  was  forged  and  it  appeared  that  after  the 
certificate  had  been  signed  by  president  and  secretary,  and  seal  attached  a  clerk 
forged  the  name  of  the  transfer  agent  the  certificate  was  not  valid  in  hands  of 
such  person. 
When  knowledge  of  agent  impntable  to  principal. 

Cited  in  Low  v.  Low,  177  Mass.  311,  59  X.  E.  57,  holding  attorney's  knowledge 
of  title  imputable  to  mortgagee;  Stanford  v.  A.  F.  Messick  Grocery  Co.  143 
X.  C.  425,  55  S.  E.  815,  holding  where  it  would  be  against  interest  of  agent  to 
disclose  knowledge  to  principal  such  knowledge  will  not  be  imputed  to  principal ; 
Foote  v.  Getting,  195  Mass.  61,  15  L.R.A.  (X.S.)  697,  80  X.  E.  600,  holding  where 
an  agent  having  the  entire  management  of  certain  premises  in  behalf  of  the  own- 
ers thereof,  and  as  incident  to  such  management  the  power  to  pay  taxes  thereon 
wrongfully  appropriated  the  money  of  another  to  pay  such  taxes,  the  existence  of 
such  agency  of  itself  did  not  render  owners  chargeable  with  knowledge  of  the 
fraud;  Warren  v.  Hayes,  74  X.  H.  357,  68  Atl.  193,  holding  principal  not  charge- 
able with  agent's  knowledge  in  respect  to  a  particular  transaction,  unless  agent's 
acts  in  respect  thereto  were  within  scope  of  his  employment. 

Cited  in  notes  (10  L.R.A.  706)   on  notice  to  agent  as  notice  to  principal;    (24 
Am.  St.  Rep.  232;  21  Eng.  Rul.  Cas.  845)   on  imputing  to  principal  notice  to  so- 
licitor or  agent. 
—  Agent   acting   in   adverse    capacity. 

Cited  in  Houghton  v.  Todd,  58  Xeb.  362,  78  X.  W.  634,  holding  knowledge  of 
want  of  authority  in  agent  acting  in  dual  capacity,  to  guarantee  contract,  not 
imputable  to  principal;  Melms  v.  Pabst  Brewing  Co.  93  \Yis.  159,  57  Am.  St. 
Rep.  899,  66  X.  W.  518,  holding  knowledge  of  defect  in  vendor's  title  by  attorney 
for  both  parties  not  imputable  to  vendee ;  Alpha  Mills  v.  Watertown  Steam  Engine 
Co.  116  X.  C.  802,  21  S.  E.  917,  holding  knowledge  of  member  dealing  with 
corporation  not  imputable  to  it;  Stanford  v.  Coram,  26  Mont.  297,  67  Pac.  1005, 
holding  agent's  knowledge  of  misappropriation  of  collateral,  acquired  while 
acting  antagonistically,  not  imputable  to  principal;  Hodges  v.  Xalty,  113  Wis. 
567,  89  X.  W.  535,  holding  notice  of  revocation  of  subscription  to  member  acting 
adversely  to  rest  of  committee  not  notice  to  committee;  First  Xat.  Bank  v. 


951  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  716 

Babbidge,  160  Mass.  566,  36  N.  E.  462,  upholding  bank's  right  to  recover  from 
accommodation  maker  of  note  for  president's  benefit,  discounted  at  president's 
request  by  cashier  without  knowledge  of  facts;  National  Bank  of  Commerce  v 
Feeney,  9  S.  D.  556,  46  L.  R.  A.  734,  70  N.  W.  874,  holding  bank  not  affected  by 
cashier's  knowledge  of  infirmity  of  note  discounted  for  him  by  discount  com- 
mittee; State  Sav.  Bank  v.  Montgomery,  126  Mich.  335,  85  N.  W.  879,  holding 
knowledge  of  cashier  discounting  notes  "for  himself  not  imputable  to  bank;  Union 
Cent.  L.  Ins.  Co.  v.  Robinson,  8  L.R.A.(X.S.)  886,  78  C.  C.  A.  268,  148  Fed.  360; 
Lilly  v.  Hamilton  Bank,  29  L.R,  A.  ( N.S. )  558,  102  C.  C.  A.  1,  178  Fed.  57;  Key- 
ser  v.  Hinkle,  127  Mo.  App.  75,  106  S.  W.  98,— holding  doctrine  that  a  principal 
will  not  be  permitted  to  enjoy  the  benefit  from  his  agent's  services  and  disclaim 
responsibility  for  the  consequences  of  his  wrongful  act  by  which  the  benefit  was 
conferred  has  no  application  where  agent  acts  for  himself,  and  adversely  to  in- 
terest of  principal;  Dight  v.  Chapman,  44  Or.  279,  65  L.R.A.  799,  75  Pac.  585, 
as  to  knowledge  of  agent  not  being  imputed  to  principal  when  agent  acts  ad- 
versely to  interest  of  principal. 
Agent  committing  fraud  on  bis  own  account. 

Cited  in  Knobelock  v.  Germania  Sav.  Bank,  50  S.  C.  290,  27  S.  E.  962,  holding 
bank  not  chargeable  with  knowledge  of  president's  intention  to  misappropriate 
funds  of  which  he  was  trustee;  Gunster  v.  Scranton  Illuminating  Heat  &  Power 
Co.  181  Pa.  336,  59  Am.  St.  Rep.  650,  37  Atl.  550,  holding  bank  not  chargeable 
with  knowledge  of  vice  president  of  misappropriation  by  him  of  note  of  corpora- 
tion  for  which  he  acted;  Indian  Head  Xat.  Bank  v.  Clark,  166  Mass.  30,  43  N.  E. 
912,  holding  knowledge  cannot  be  imputed  to  bank  of  cashier's  intention  to  em- 
bezzle proceeds  of  note  discounted  by  him;  Bank  of  Overton  v.  Thompson,  56 
C.  C.  A.  557,  118  Fed.  801,  holding  bank  not  chargeable  with  knowledge  of 
another's  interest  in  deposit  made  by  cashier;  Henry  v.  Allen,  151  N.  Y.  11, 
36  L.  R.  A.  662,  footnote,  p.- 658,  45  N.  E.  355,  Reversing  77  Hun,  60,  28  N.  Y 
Supp.  242,  holding  knowledge  of  agreement  made  by  agent  to  deposit,  nullifying 
legal  effect  of  cashier's  checks,  not  imputable  to  principal;  Thomson-Houston 
Electric  Co.  v.  Capitol  Electric  Co.  12  C.  C.  A.  646,  22  U.  S.  App.  669,  65  Fed.  343, 
Reversing  56  Fed.  852,  holding  lender  not  chargeable  with  knowledge  of  de- 
fenses to  bonds  fraudulently  pledged  by  agent;  Hickman  v.  Green,  123  Mo.  176, 
29  L.  R.  A.  44,  27  S.  W.  440,  holding  principal  not  chargeable  with  agent's 
knowledge  of  unrecorded  deed  collusively  concealed;  Newell  v.  Hadley,  206  Mass. 
355,  29  L.R.A.(X.S.)  920,  92  N.  E.  507  (dissenting  opinion),  on  knowledge  of 
agent  as  imputable  to  principal,  when  acting  criminally  for  his  own  benefit; 
Brookhouse  v.  Union  Pub.  Co.  73  N.  H.  374,  2  L.R.A.(N.S.)  999,  111  Am.  St. 
Rep.  623,  62  Atl.  219,  6  A.  &  E.  Ann.  Cas.  675,  holding  notice  to  treasurer  was 
not  notice  to  corporation  as  to  misapplication  by  treasurer  of  guardianship  funds; 
J.  J.  McCaskill  Co.  v.  United  States,  216  U.  S.  514,  54  L.  ed.  596,  30  Sup.  Ct. 
Rep.  386,  holding  that  knowledge  of  fraud  on  part  of  officers,  who  are  also 
stockholders  is  to  be  imputed  to  corporation:  Lilly  v.  Hamilton  Bank,  29  L.R. A. 
(N.S.)  565,  102  C.  C.  A.  1,  178  Fed.  57,  holding  that  knowledge  of  officer  of  bank, 
who  offers  to  bank  note  which  he  had  secured  by  fraud,  but  who  was  not  present 
while  question  of  acceptance  was  discussed,  is  not  imputable  to  bank. 
Liability  of  person  whose  negligence  made  fraud  possible. 

Cited  in  Newman  v.  Scarborough,  115  La.  866,  112  Am.  St.  Rep.  278,  40  So. 
248,  holding  where  a  person  signing  a  guaranty  thinks  he  is  signing  for  a  much 
smaller  sum  there  is  error  in  the  substance  of  the  contract  but  creditor  cannot  be 
made  to  suffer  for  error  for  which  he  is  no  no  wise  responsible  and  person  who 
committed  the  error  must  make  good  losses  resulting  therefrom;  Merchants'  &  F. 
Cotton  Oil  Co.  v.  Lufkin  Nat.  Bank,  34  Tex.  Civ.  App.  556,  79  S.  W.  651,  holding 


5  L  .R.A.  716]  L.  R.  A.  CASES  AS  AUTHORITIES.  952 

where  a  corporation  authorized  its  secretary  to  attest  and  seal  negotiable  instru- 
ments executed  on  its  behalf,  and  such  secretary  attested  a  note  which  the  corpo- 
ration's treasurer  had  executed  on  which  he  had  forged  the  signature  of  the 
general  manager  who  was  required  to  sign  notes  to  be  negotiated  by  such 
treasurer  the  genuine  attestation  of  the  signatures  by  corporation's  secretary  re- 
lieved a  bona  fide  purchaser  from  further  inquiry. 

Distinguished  in  Hill  v.  C.  F.  Jewett  Pub.  Co.  154  Mass.  178,  13  L.  R.  A.  195, 
26  Am.  St.  Rep.  230,  28  N.  E.  142,  holding  corporation  permitting  access  by  presi- 
dent to  certificates  and  seal  not  liable  on  forged  certificates;  Bangor  Electric  Light 

6  Power  Co.  v.  Robinson,  52  Fed.  522,  holding  that  innocent  purchaser  for  value 
from  one  abstracting  stock  from  common  safety  deposit  box  acquires  no  title. 
Measure    of    damages    for    conversion. 

Cited  in  footnotes  to  Woods  v.  Nichols,  48  L.  R,  A.  773,  which  holds  measure 
of  recovery  in  trover  by  one  retaining  title  as  security  for  purchase  price,  limited 
to  balance  due,  less  depreciation  by  use;  Langford  v.  Rivinus,  33  L.  R.  A.  250, 
which  holds  value  of  judgment  at  date  of  conversion  measure  of  damages. 

5  L.  R.  A.  720,  DOLE  v.  SHERWOOD,  41  Minn.  535,  16  Am.  St.  Rep.  731,  43 

N.  W.  569. 
Broker's    right    to    commissions. 

Cited  in  Baars  v.  Hyland,  65  Minn.  151,  67  N.  W.  1148,  holding  owner  not 
liable  for  commissions  where  he  personally  effects  sale,  before  agent,  without  ex- 
clusive right  to  sell,  notifies  him  of  purchaser;  Mullen  v.  Bower,  22  Ind.  App. 
302,  53  N.  E.  790,  holding  owner  not  liable  for  commission  where  agent  intro- 
duces customer  through  unknown  subagent  with  whom  owner  deals  as  if  stranger, 
and  sells  at  lower  price;  Hill  v.  Jebb,  55  Ark.  576,  18  S.  W.  1047,  denying  broker's 
right  to  commissions  on  sale  of  property  previously  sold  by  owner;  Owl  Canon 
Gypsum  Co.  v.  Ferguson,  2  Colo.  App.  232.  30  Pac.  255  (dissenting  opinion), 
majority  holding  broker  entitled  to  commissions  on  sale  of  stock  prior  to  sale  by 
owners,  the  latter  having  knowledge  of  such  prior  sale;  Ingold  v.  Symonds,  125 
Iowa,  85,  99  N.  W.  713,  holding  agent  not  entitled  to  commission  on  sale  of  land 
by  owner,  though  agent  had  exclusive  authority  to  find  a  purchaser;  Mott  v.  Fer- 
guson, 92  Minn.  203,  99  N.  W.  804,  holding  broker  authorized  to  secure  a  loan  for 
owner  of  real  estate  not  entitled  to  commission  where  owner  himself  obtains  the 
loan  before  agent  has  found  one  ready,  able  and  willing  to  do  so. 

Cited  in  note  (2  Eng.  Rul.  Cas.  535)  as  to  when  agent's  right  to  commissions 
is  earned. 

Distinguished  in  Levy  v.  Rothe,  17  Misc.  403,  39  N.  Y.  Supp.  1057,  holding 
owner  liable  to  commissions  though  personally  finding  purchaser,  where  broker, 
having  "sole  agency  to  sell,"  finds  purchaser  within  prescribed  time. 
Right  of  owner  to  sell  land  placed  in  hands  of  agent. 

Cited  in  Woolf  v.  Sullivan,  224  111.  514,  79  N.  E.  646,  holding  that  owner  may 
sell  real  estate  though  he  has  placed  it  in  hands  of  agent  for  sale:  Hieronymus 
v.  Atterbury,  156  Mo.  App.  616,  137  S.  W.  617,  holding  that  owner  is  liable  for 
commissions  only  to  agent  who  first  produces  purchaser  where  property  placed 
with  several  agents  for  sale,  no  one  having  exclusive  right. 

Cited  in  note   (24  L.R.A.  (X.S.)   280)   on  broker's  right  to  make  sale  as  exclu- 
sive of  owner's. 
Service    of    redemption    notice. 

Cited  by  mistake  in  Sterling  v.  Urquhart,  88  Minn.  499,  93  N.  W.  898,  holding 
proof  of  service  of  redemption  notice  on  one  to  whom  lands  assessed  necessary  in 
action  between  owner  of  judgment  and  owner  of  land. 


953  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  724 

5  L.  R.  A.  721,  FOWLER  v.  SMITH,  31  S.  C.  398,  10  S.  E.  93. 

Merger. 

Cited  in  Fretwell  v.  Branyon,  67  S.  C.  108,  45  S.  E.  157,  holding  where  a  firm 
held  a  fee-simp}e  title  to  certain  mortgaged  lands,  and  the  mortgage  thereon  was 
assigned  to  a  member  of  the  firm,  and  the  amount  thereof  was  paid  by  the  firm, 
and  mortgage  was  held  by  firm  for  some  years,  the  mortgage  was  merged  in  the 
legal  title,  the  payment  of  the  mortgage  being  part  of  the  consideration  for  the 
land,  and  it  could  not  be  enforced  by  assignee  thereof. 

5  L.  R.  A.  724,  ELMER  v.  FESSENDEN,  151  Mass.  359,  22  N.  E.  635,  24  N.  E. 

208. 

Second  appeal  in  154  Mass.  427,  28  N.  E.  299. 
Admissibility     of    evidence. 

Cited  in  Tasker  v.  Stanley,  153  Mass.  150,  10  L.  R.  A.  469,  26  N.  E.  417, 
holding  plaintiff's  statement  that  he  is  going  to  make  as  dirty  a  case  as  he  can, 
admissible  in  action  for  alienation  of  affections;  Deveney  v.  Baxter,  157  Mass. 
11,  31  N.  E.  690,  holding  oral  statements  made  at  time  of  act  admissible  as  part 
of  res  gestce;  Lawrence  v.  Wilson,  160  Mass.  307,  35  N.  E.  858,  holding  declara- 
tions of  plaintiff's  predecessor  in  title  inadmissible  in  action  of  trespass;  Zinn 
v.  Rice,  161  Mass.  574,  37  N.  E.  747,  holding  evidence  of  inquiries  by  mercantile 
agencies  inadmissible  in  action  for  excessive  attachment;  Alabama  &  V.  R.  Co. 
v.  Brooks,  69  Miss.  185,  30  Am.  St.  Rep.  528,  13  So.  847,  holding  one's  own  asser- 
tion that  he  believed  owner  took  baggage,  and  then  fraudulently  sued  for  its 
value,  not  conclusive  in  libel  suit;  Rogers  v.  Manhattan  L.  Ins.  Co.  138  Cal.  292, 
71  Pac.  348;  Mutual  L.  Ins.  Co.  v.  Hillmon,  145  U.  S.  297,  36  L.  ed.  711,  12  Sup. 
Ct.  Rep.  909,  holding  evidence  of  intention  provable  by  statements  in  letters 
written  under  unsuspicious  circumstances;  Cleaves  v.  Braman,  103  Me.  162,  68 
Atl.  857,  holding  in  an  action  for  damages  for  obstructing  plaintiff's  easement  of 
a  way  with  a  fence  the  declarations  of  the  guests  at  plaintiff's  hotel  made  at 
time  of  leaving  tending  to  show  that  they  left  on  account  of  the  fence,  admissible; 
Peirson  v.  Boston  Elev.  R.  Co.  191  Mass.  235,  77  N.  E.  769,  holding  in  proceedings 
to  recover  damages  to  abutting  property  from  construction  and  operation  of 
elevated  railroad  in  street  testimony  of  the  keeper  of  a  restaurant  on  the  prem- 
ises that  on  several  occasions  people  who  came  there  went  out  saying  "we  can't 
talk  here"  etc.  admissible;  Western  Travelers'  Acci.  Asso.  v.  Munson,  73  Xeb. 
869,  1  L.R.A.  (N.S.)  1074,  103  N.  W.  688,  holding  statements  of  fact  fairly  in- 
dicative of  a  relevant  bodily  condition  of  the  declarant  at  time  of  the  declaration 
are  admissible  as  evidence  of  the  existence  of  such  condition,  although  made 
considerable  time  after  injury  was  received;  Hubbard  v.  Allyn,  200  Mass.  174,  86 
X.  E.  356,  holding  the  plaintiff  in  an  action  of  tort  brought  by  a  baker  against 
a  member  of  a  board  of  health  to  recover  damages  for  the  alleged  publication  of 
a  libel  charging  the  plaintiff  with  using  in  his  business  "so  called  vanilla"  con- 
taining wood  alcohol,  in  order  to  prove  the  extent  of  his  damages  may  introduce 
in  evidence  statements  made  by  former  customers  in  withdrawing  their  trade. 

Questioned  in  Com.  v.  Trefethen,  157  Mass.  191,  24  L.  R.  A.  241,  31  N.  E.  961, 
holding  evidence  of  declarations  by  deceased  of  intention  to  commit  suicide  ad- 
missible in  murder  case. 
Slander    of    title. 

Cited  in  Squires  v.  Wason  Mfg.  Co.  182  Mass.   138,  65  X.  E.  32,  denying  lia- 
bility for  slander  of  title  of  patent,  made  in  good  faith. 
Libel    and    slander. 

Cited  in  American  Banana  Co.  v.  United  Fruit  Co.  213  U.  S.  358,  53  L.  ed.  833, 


5  L.R.A.  724)  L.  R.  A.  CASES  AS  AUTHORITIES.  954 

29  Sup.  Ct.  Rep.  511,  16  A.  &  E.  Ann.  Cas.  1047,  as  to  liability  of  unauthorized 
repetition  of  a  slander. 

Cited  in  footnote  to  Xissen  v.  Cramer,  6  L.  R.  A.  780,  holding  saying  "that's 
a  lie,"  of  material  testimony,  not  actionable  when  spoken  during  trial. 

Cited  in  note  (9  L.  R.  A.  621)  on  libel  and  slander;  libel  defined. 

Concurring;    canoe    of    injury. 

Cited  in  Hayes  v.  Hyde  Park,  153  Mass.  516,  12  L.  R.  A.  250,  27  X.  E.  522, 
holding  town  not  relieved  of  liability  by  co-operation  of  act  of  innocent  traveler 
with  defect  in  highway,  in  causing  injury;  Stone  v.  Boston  &  A.  R.  Co.  171  Mass. 
540,  41  L.  R.  A.  797,  51  X.  E.  1,  holding  railroad  company's  negligence  in 
keeping  oil  on  platform  not  concurrent  with  carelessness  of  man  in  dropping 
lighted  match. 
Municipal  law. 

Cited  in  note  (11  L.  R.  A.  548)  on  municipal  law;  limitation  of  province  of, 
as  to  enforcement  of  obligations. 

5  L.  R.  A.  726,  CAXTILLON  v.  DUBUQUE  &  X.  W.  R.  CO.  78  Iowa,  48,  42  X.  W. 

613. 
Power    to    issue    railroad-aid    bonds. 

Cited  in  footnote  to  Wullenwaber  v.  Dunigan,   13  L.  R.  A.  811,  which  holds 
petition  signed  by  fifty  freeholders  necessary  to  authorize  election  to  vote  aid 
to  railway. 
Effect    of    changre    of    railroad   route. 

Cited  in  Lowell  v.  Washington  County  R.  Co.  90  Me.  94,  37  Atl.  869,  holding 
change  in  route  of  railroad  does  not  affect  liability  of  county  on  subscription  to 
stock,  where  charter  of  company,  at  time  of  subscription,  provided  for  passage 
of  railroad  through  county  only  at  "some  point." 
Consolidation     of     corporations. 

Cited  in  Chevra  Bnai  Israel  v.  Chevra  Bikur  Cholim,  24  Misc.  190,  52  X.  Y. 
Supp.  712,  holding  agreement  between  presidents  of  distinct  religious  and  benevo- 
lent corporations  to  consolidate,  unenforceable  between  parties  where  trustees 
have  not  confirmed  same  nor  supreme  court  assented. 

Cited  in  note   (52  L.  R.  A.  391)   on  right  of  corporations  to  consolidate. 
Construction    of    corporate    ri.tihts. 

Cited  in  note  (9  L.  R.  A.  34)  on  strict  construction  of  grant  of  corporate  right 
or  privilege. 

5  L.  R.  A.  731,  WESTMORELAXD  &  C.  XATURAL  GAS  CO.  v.  DE  WITT,  130 

Pa.  235,  18  Atl.  724. 
Nature   and    ownership    of    jajas    and    oil. 

Cited  in  Ridgway  Light  &  Heat  Co.  v.  Elk  County,  191  Pa.  469,  43  Atl.  323, 
holding  gas  the  property  of  owner  of  soil  so  long  as  in  it  or  upon  it,  and 
subject  to  taxation  where  not  exempt  as  indispensably  necessary  to  carry  out 
purposes  for  which  public  corporate  owner  organized;  Gerkins  v.  Kentucky  Salt 
Co.  100  Ky.  735,  66  Am.  St.  Rep.  370,  39  S.  W.  444,  holding  remaindermen  entitled 
to  close  wells  opened  by  lessee  of  owner  of  life  estate;  Columbian  Oil  Co.  v. 
Blake,  13  Ind.  App.  688,  42  X.  E.  234.  holding  conveyance  of  gas  and  oil  rights 
by  married  woman  alone,  prohibited  by  statute  forbidding  conveyance  of  her 
separate  real  estate  except  by  deed  in  which  husband  joins;  Marshall  v.  Mellon, 
179  Pa.  374,  35  L.  R.  A.  819,  57  Am.  St.  Rep.  601,  36  Atl.  201,  holding  gas  a 
mineral;  as  such,  a  part  of  realty,  and  therefore  incapable  of  primary  disposition 
by  life  tenant  as  against  remaindermen,  under  lease,  since  effect  is  to  give  lessee 


955  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  731 

right  to  dispose  of  freehold;  Murray  v.  Allred,  100  Tenn.  115,  39  L.  R.  A.  252, 
66  Am.  St.  Rep.  740,  43  S.  W.  355,  holding  gas  a  mineral  within  reservation, 
in  deed,  of  all  "minerals;"  Williamson  v.  Jones,  39  W.  Va.  257,  25  L.  R.  A.  233, 
19  S.  E.  436,  holding  oil  a  mineral,  passing  under  judicial  sale  of  real  property; 
Wagner  v.  Mallory,  169  N.  Y.  505,  62  N.  E.  584,  holding  title  to  oil  does  not  vest 
in  lessee  of  well  until  pumped  from  ground  and  taken  into  possession;  People's 
Gas  Co.  v.  Tyner,  131  Ind.  281,  16  L.  R.  A.  445,  31  Am.  St.  Rep.  443,  31  N.  E.  59, 
holding  landowner  not  enjoined  from  exploding  nitroglycerin  in  gas  well,  though 
effect  is  to  increase  flow  from  adjoining  lands  into  his  well ;  Jones  v.  Forest  Oil 
Co.  194  Pa.  383,  48  L.  R.  A.  750,  44  Atl.  1074,  Affirming  30  Pittsb.  L.  J.  N.  S.  59, 
holding  use  of  suction  pumps  in  oil  well  lawful,  though  flow  in  adjoining  wella 
decreased  thereby;  Greensburg  Fuel  Co.  v.  Irwin  Natural  Gas  Co.  162  Pa.  85, 
29  Atl.  274,  holding  right  of  insolvent  corporation  to  take  gas,  and  easements  of 
access,  and  machinery  used  in  enjoying  right,  subject  to  fieri  facias  under  act 
April  7,  1870,  P.  L.  58,  since  they  do  not  fall  within  exception  in  favor  of  "lands 
held  in  fee;"  Ohio  Oil  Co.  v.  Indiana,  177  U.  S.  203,  44  L.  ed.  737,  20  Sup.  Ct. 
Rep.  576,  holding  statute  requiring  the  storage  or  confinement  of  escaping  gas 
or  oil  within  two  days  after  being  struck  valid  regulation  of  property  rights; 
Townsend  v.  State,  147  Ind.  628,  37  L.  R.  A.  298,  62  Am.  St.  Rep.  477,  47  N.  E. 
19,  holding  statute  prohibiting  waste  of  natural  gas  by  flambeau  lights  not  uncon- 
stitutional invasion  of  property  rights;  Kansas  Natural  Gas  Co.  v.  Haskell,  172 
Fed.  563,  holding  one  who  by  lawful  right  reduces  natural  gas  to  possession  has 
an  absolute  right  of  property  therein;  Southern  P.  R.  Co.  v.  San  Francisco  Sav. 
Union,  146  Cal.  299,  70  L.R^A.  226,  106  Am.  St.  Rep.  36,  79  Pac.  961,  2  A.  &  E, 
Ann.  Cas.  962,  holding  railway  does  not  acquire  by  condemnation  proceedings 
any  title  to  oil  beneath  the  surface;  Test  Oil  Co.  v.  La  Tourette,  19  Okla.  220, 
91  Pac.  1025,  as  to  subjection  to  control  determining  ownership  in  oil;  Rockwell 
v.  Warren  County,  228  Pa.  432,  139  Am.  St.  Rep.  1006,  77  Atl.  665,  holding  that 
separate  ownership  of  oil,  gas  and  minerals  constitutes  interest  or  estate  in 
land;  Rockwell  v.  Keefer,  39  Pa.  Super.  Ct.  476,  holding  where  there  is  a  sepa- 
rate ownership  of  oil,  gas  and  minerals  in  a  tract  of  unseated  land  such  mineral 
right  may  be  separately  assessed  for  taxes;  Hicks  v.  American  Natural  Gas  Co. 
207  Pa.  579,  65  L.R.A.  214,  57  Atl.  55,  as  to  nature  of  possession  of  licensee; 
Mclntosh  v.  Ropp,  233  Pa.  513,  82  Atl.  949,  holding  that  oil  and  gas  contained  in 
land  are  minerals;  Farquharson  v.  Barnard  Argue  Roth  Stearns  Oil  &  Gas  Co. 
22  Ont.  L.  Rep.  338,  to  the  point  that  separate  ownership  of  oil  or  gas  may  con- 
stitute interest  or  estate  in  land. 

Cited  in  notes   (16  L.  R.  A.  444;  25  L.  R.  A.  222,  223)   on  natural  gas;    (25 
L.R.A.  227)   on  nature  of  interest  in  oil  or  gas  lease;    (44  L.  ed.  U.  S.  730)   on 
property  in  petroleum  or  gas. 
Injunction. 

Cited  in  Duffield  v.  Rosenzweig,  144  Pa,  536,  23  Atl.  4,  and  Dufneld  v.  Hue, 
136  Pa.  617,  20  Atl.  526,  holding  injunction  proper  remedy  to  prevent  lessor, 
who  has  taken  possession  of  portion  of  leased  premises  for  purpose  of  boring  for 
oil,  from  carrying  out  purpose;  Cosmos  Exploration  Co.  v.  Gray  Eagle  Oil  Co. 
61  L.  R,  A.  236,  50  C.  C.  A.  84,  112  Fed.  8;  California  Oil  &  Gas  Co.  v.  Miller, 
96  Fed.  24;  Erskine  v.  Forest  Oil  Co.  80  Fed.  585,— holding  bill  to  restrain 
operation  of  oil  well  by  solvent  trespasser  not  entertained,  being,  in  effect,  bill 
to  obtain  possession ;  Hicks  v.  American  Natural  Gas  Co.  207  Pa.  579,  65  L.  R.  A. 
214,  57  Atl.  55,  holding  ejectment,  not  injunction,  proper  remedy  to  oust  one 
wrongfully  entering  under  oil  lease  and  erecting  machinery;  Consumer's  Gas 
Trust"  Co.  v.  American  Glass  Co.  162  Ind.  397,  68  >'.  E.  1020,  holding  a  lessee, 
under  a  lease  giving  it  the  exclusive  right  to  draw  gas  from  the  demised  tract 


5L.E.A.  731]  L.  R.  A.  CASES  AS  AUTHORITIES.  03C 

has  a  proprietary  interest  in  the  tract  including  a  part  thereof  over  which  a 
railroad  has  acquired  an  easement  for  its  right  of  way  and  may  enjoin  the  sink- 
ing of  a  gas  well  on  such  land  thereby  diminishing  the  flow  of  gas  from  its  own 
wells;  Central  Fuel  Co.  v.  Wallace,  174  Ind.  726,  93  N.  E.  65,  holding  that  grantee 
of  portion  of  tract  of  land  subject  to  right  to  drill  two  gas  wells  may  enjoin  sink- 
ing of  other  wells;  Griffiths  v.  Monongahela  R.  Co.  58  Pittsb.  L.  J.  12,  20  Pa. 
Dist.  R.  540,  holding  that  upper  owner  may  be  enjoined  from  diverting  water 
from  stream  for  purposes  other  than  in  connection  with  land;  Duffield  v.  Rosen- 
zweig,  22  Pittsb.  L.  J.  N.  S.  127,  holding  that  equity  will  restrain  lessor  from 
drilling  wells  in  violation  of  rights  of  lessee  and  his  assignee ;  American  Electrical 
Works  v.  Varley  Duplex  Marget  Co.  26  R.  I.  296,  58  Atl.  977,  3  A.  &  E.  Ann.  Gas. 
975,  holding  injunction  will  be  granted  to  prevent  removal  of  articles  'furnished 
under  contract  although  the  contract  could  not  be  specifically  enforced. 

Distinguished  in  Bascom  v.  Cannon,  158  Pa.  230,  27  Atl.  968.  dismissing  bill 
for  injunction  against  interference  with  coal  mine,  where  complainant's  exercise 
of  rights  under  decree  acquiesced  in  for  number  of  years. 
Provision  for  expiration  of  lease  on  breacb  of  condition. 

Cited  in  Jones  v.  Western  Pennsylvania  Natural  Gas  Co.  146  Pa.  211,  23  Atl. 
386,  holding  that  stipulation  in  lease,  for  completion  of  well  by  lessee  by  certain 
date,  otherwise  the  lease  to  be  "null  and  void,"  renewable  only  "by  mutual  con- 
sent," creates  merely  option  to  avoid;  Hukill  v.  Myers,  36  W.  Va.  646,  15  S.  E. 
151;  Duffield  v.  Michaels,  42  C.  C.  A.  653,  102  Fed.  823;  Diamond  Plate  Glass  Co. 
v.  Echelbarger,  24  Ind.  App.  128,  55  N.  E.  233;  Steiner  v.  Marks,  172  Pa.  404, 
33  Atl.  695, —  holding  lessor  precluded  from  asserting  forfeiture  where  he  has 
misled  lessee  into  default;  Scranton  R.  Co.  v.  Scranton,  5  Lack.  Legal  News,  258, 
enjoining  interference  with  laying  of  tracks  after  date  limited  by  ordinance  for 
completion  of  railway,  where  forfeiture  not  affirmatively  enforced  for  years; 
Verdolite  Co.  v.  Richards,  7  Northampton  Co.  Rep.  119,  refusing  to  declare  for- 
feiture of  mining  lease  for  failure  to  pay  rent,  wThere  prior  breaches  waived  and 
no  notice  of  future  nonwaiver  given;  English  v.  Yates,  205  Pa.  108,  54  Atl.  503, 
denying  power  of  lessee  to  end  lease  by  own  default,  thereby  releasing  sureties; 
Steele  v.  Maher,  38  Pa.  Super.  Ct.  194,  holding  a  clause  in  a  lease  that  it  shall 
be  null  and  void  on  failure  of  lessee  to  pay  rent  does  not  make  lease  void  ipso 
facto  but  may  be  enforced  or  waived  by  lessor;  Myers  v.  Consumers'  Coal  Co. 
15  Luzerne  Leg.  Reg.  156,  holding  that  forfeiture  of  lease  for  nonpayment  of  rent 
when  due  is  waived  if  rent  is  subsequently  accepted. 

Cited  in  notes  (31  L.R.A.  674,  675)  on  forfeiture  of  oil  and  gas  lease;  (26  Am. 
St.  Rep.  911,  912)  on  forfeiture  of  lease  for  breach  of  condition  by  lessee;  (47 
Am.  St.  Rep.  .198)  on  waiver  of  forfeiture  of  lease;  (15  Eng.  Rul.  Cas.  567) 
on  lessor's  option  to  avoid  lease  on  lessee's  omission  or  commission  of  acts  stipu- 
lated for  or  against. 

Distinguished  in  Diamond  Plate  Glass  Co.  v.  Curless,  22  Ind.  App.  353,  52 
N.  E.  182,  holding  lease  for  indefinite  period,  stipulating  only  for  payment  of 
contingent  rent  at  certain  dates,  runs  merely  from  year  to  year,  and  is  terminated 
by  nonpayment  of  rent;  Harlan  v.  Logansport  Natural  Gas  Co.  133  Ind.  330, 
32  N.  E.  930,  holding  lessee  of  right  of  way  for  gas  pipes  in  consideration  of 
lessor's  right  to  use  gas  free  of  charge  may  cut  off  lessor's  supply  where  it  appears 
that,  by  mistake,  pipes  were  not  located  on  right  of  way  over  lessor's  land;  Vito 
v.  Birkel,  209  Pa.  209,  58  Atl.  127,  holding  where  certain  articles  of  agreement 
for  purchase  of  land  provided  for  payment  of  installments  on  certain  dates  and 
on  default  the  vendee  should  forfeit  the  money  already  paid  and  vendor  should 
become  entitled  to  possession,  if  any  one  of  the  installments  was  not  paid  as 


957  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  735 

required  the  contract  was  rescinded  and  vendor  was  entitled  to  possession  without 
any  affirmative  act  on  his  part. 
Reservations    to    lessor. 

Cited  in  Lynch  v.  Burford,  201  Pa.  55,  50  Atl.  228,  holding  lessee  of  gas 
entitled  to  injunction  against  drilling  of  well  by  lessor  within  limits  reserved  to 
him  in  lease  "as  a  protection  against  fire." 

Distinguished  in  Spillman  v.  Brown,  45  Fed.  294,  holding  lease  "excepting  10 
acres  from  the  grant,  upon  which  no  wells  shall  be  drilled  without  consent  of 
lessor,"  reserves  to  lessor  right  to  drill  thereon. 
Municipal    gas     -works. 

Cited  in  note    (11  L.  R.  A.  730)    on  power  of  municipalities  to  make  public 
improvements. 
"\\lmt    are    minerals. 

Cited  in  Re  Forestry  Commission  Leases,  28  Pa.  Co.  Ct.  148,  expressing  opinion 
that  ganister  rock  is  mineral;  Northern  P.  R.  Co.  v.  Soderberg,  188  U.  S.  535, 
47  L.  ed.  583,  23  Sup.  Ct.  Rep.  365,  holding  that  lands  valuable  chiefly  for  granite 
are  "mineral  lands;"  State  ex  rel.  Atkinson  v.  Evans,  46  Wash.  225,  10  L.R.A. 
(N.S.)  1165,  89  Pac.  565,  as  to  petroleum  being  mineral;  Stone  v.  Providence 
Gas  &  Water  Co.  13  Pa,  Dist.  R.  558,  as  to  water,  gas  and  oil  being  minerals; 
Hathorn  v.  Natural  Carbonic  Gas  Co.  194  N.  Y.  338,  23  L.R.A.(N.S.)  444,  128 
Am.  St.  Rep.  555,  87  N.  E.  504,  16  A.  &  E.  Ann.  Cas.  989,  holding  subterranean 
waters  are  considered  as  "minerals"  in  respect  to  their  use  and  enjoyment,  irre- 
spective of  the  character  and  quantity  of  salts  and  gases  which  may  be  in  solu- 
tion; Re  Forestry  Reservation  Commission,  12  Pa,  Dist.  R.  422,  holding  ganister 
rock  a  "mineral." 
Construction  of  forfeitures. 

Cited  in  Gerhart  v.  Miller,  25  Montg.  Co.  L.  Rep.  178 ;  Hornet  v.  Singer,  35  Pa. 
Super.  Ct.  495, — holding  the  forfeitures  to  be  construed  strictly. 
Costs. 

Distinguished  in  Myers  v.  Alta  Friendly  Soc.  29  Pa.  Super.  Ct.  501,  holding 
where  a  beneficial  association  defends  a  suit  against  it  for  sick  benefits  on  the 
ground  that  the  member  had  not  furnished  the  association  his  own  and  a  phy- 
sician's certificate  as  required  by  the  by-laws,  and  it  appears  that  member  had 
furnished  the  certificate  for  one  week's  benefits,  but  not  in  time  for  subsequent 
weeks  for  which  he  clainied  and  no  tender  for  one  week  was  made  to  the  member 
he  was  estopped  to  recover  for  one  week's  benefits  and  costs. 

5  L.  R.  A.  735,  MURRAY  v.  ST.  LOUIS  CABLE  &  W.  R.  CO.  98  Mo.  573,  14  Am. 

St.  Rep.  661,  12  S.  W.  252. 
Who   are    fellow    servants. 

Cited  in  Hall  v.  St.  Joseph  Water  Co.  48  Mo.  App.  364,  holding  foreman  in 
charge  of  gang  vice  principal;  Parker  v.  Hannibal  &  St.  J.  R.  Co.  109  Mo.  379, 
18  L.  R.  A.  807,  19  S.  W.  1119,  holding  trainmen  and  railroad  section  hands  not 
fellow  servants  when  working  independently  under  different  foremen;  Schlereth 
v.  Missouri  P.  R.  Co.  115  Mo.  99,  21  S.  W.  1110,  holding  engineer  and  track 
repairer  not  fellow  servants;  Grattis  v.  Kansas  City,  P.  &  G.  R.  Co.  153  M... 
396,  48  L.  R.  A.  405,  77  Am.  St.  Rep.  721,  55  S.  W.  108,  holding  conductor, 
engineer,  and  fireman  on  same  train  fellow  servants;  Olgesby  v.  Missouri  P.  R. 
Co.  150  Mo.  180,  51  S.  W.  758  (separate  opinion),  to  proposition  that  conductor, 
engineer,  and  rest  of  train  crew  are  fellow  servants:  Warmington  v.  Atchison,  T. 

6  S.  F.  R.  Co.  46  Mo.  App.  170,  holding  brakeman  in  switch  gang  and  engineer 
of  switch  engine  fellow  servants;   Card  v.  Eddy,  129  Mo.  519,  36  L.  R.  A.  809, 


5  L.R.A.  735]  L.  R.  A.  CASES  AS  AUTHORITIES.  958 

28  S.  W.  979,  holding  fireman  delivering  orders  of  roadmaster,  fellow  servant 
with  section  foreman  to  whom  delivered;  Pike  v.  Chicago  &  A.  R.  Co.  41  Fed.  97, 
holding  bridge  watchman  not  fellow  servant  with  engineer  and  conductor  of 
train  on  same  road;  Coontz  v.  Missouri  P.  R.  Co.  121  Mo.  659,  26  S.  W.  661, 
holding  liability  to  conductor  of  train  for  injury  resulting  from  defective  engine 
cannot  be  escaped  on  ground  that  engineer,  a  fellow  servant,  neglected  to  perform 
his  duty  of  inspection;  Padgett  v.  Scullin-Gallagher  Iron  &  Steel  Co.  1(50  Mo, 
App.  553,  140  S.  W.  943,  holding  that  operator  of  electric  cage  and  electrician 
who  was  engaged  in  cleaning  grease  from  trolly  wire  in  cage  with  gasolene  were 
fellow  servants. 

Cited  in  footnotes  to  Harrison  v.  Detroit,  L.  &  N.  R.  Co.  7  L.  R.  A.  623,  which 
holds  engineer,  fireman,  and  assistant  roadmaster  fellow  servants  of  section  hand ; 
Baltimore  &  O.  R.  Co.  v.  Andrews,  17  L.  R.  A.  190,  which  holds  conductor  and 
engineer  fellow  servants  of  brakeman  on  other  train;  Clarke  v.  Pennsylvania  Co, 
17  L.  R.  A.  811,  which  holds  section  boss  of  one  gang  and  member  of  another 
gang  fellow  servants;  Fisher  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  16  L.  R.  A. 
519,  which  holds  section  foreman  and  conductor  not  fellow  servants;  Daniel  v, 
Chesapeake  &  0.  R.  Co.  16  L.R.A.  383,  which  holds  conductor  and  brakeman  on 
different  trains  not  fellow  servants;  Palmer  v.  Michigan  C.  R.  Co.  17  L.  R.  A. 
637,  which  holds  assistant  roadmaster  not  fellow  servant  of  gang  of  men  working 
under  him. 

Cited  in  notes  (7  L.  R.  A.  503)  on  who  are  fellow  servants;  (50  L.  R.  A.  457) 
on  what  servants  are  deemed  to  be  in  same  common  employment,  apart  from 
statutes,  where  no  questions  as  to  vice  principalship  arise;  (75  Am.  St.  Rep.  585} 
on  who  is  a  vice  principal. 

5  L.  R.  A.  737,  GALLAGHER  v.  NEW  YORK  &  N.  E.  R,  CO.  57  Conn.  442,  18 

Atl.  786. 
Duty    to    fence    railroad    track. 

Cited  in  footnotes  to  Johnson  v.  Oregon  Short  Line  R.  Co.  53  L.  R.  A.  744, 
which  holds  railroad  company  liable  for  horses  killed  on  unfenced  track;  Donne- 
gan  v.  Erhardt,  7  L.  R.  A.  527,  which  holds  railroad  company  required  to  fence 
track,  if  necessary  to  keep  off  obstructions;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Reesman, 
23  L.  R.  A.  768,  which  holds  company  liable  to  brakeman  for  failure  to  maintain 
fences,  causing  derailment;  Gould  v.  Great  Northern  R.  Co.  30  L.  R.  A.  590,  which 
requires  railroad  fences  to  be  on  outside  margin  of  right  of  way;  St.  Louis,  I.  M. 

6  S.  R.  Co.  v.  Ferguson,   18  L.  R.   A.   110,  which  holds  railroad  company  not 
liable   for   injury  by  barbed-wire  fence  to   colt  frightened  from   track  by  train 
whistle;  Rabidon  v.  Chicago  &  W.  M.  R.  Co.  39  L.  R.  A.  405,  which  holds  switch, 
but  a  mile  from  depot,  need  not  be  fenced. 

Cited  in  notes  (12  L.  R.  A.  181)  on  duty  of  railroad  company  to  fence  its 
tracks;  (8  L.  R.  A.  135)  on  liability  of  railroad  company  for  death  or  injury 
to  cattle  by  failure  to  fence;  (9  L.R.A.  (N.S.)  349)  on  duty  of  railroad  to  fence 
right  of  way;  (30  L.R.A. (N.S.)  1197)  on  duty  of  railroad  to  fence  against 
persons;  (21  Am.  St.  Rep.  289)  on  duty  of  railroad  company  to  animals  on  or 
near  track. 
Question  of  fact  or  law. 

Cited  in  Farrell  v.  Waterbury  Horse  R.  Co.  60  Conn.  253,  holding  finding  of 
trial  court  on  question  of  negligence,  one  of  fact,  not  reviewable  on  appeal ; 
Donovan  v.  Hartford  Street  R.  Co.  65  Conn.  226,  29  L.  R.  A.  302,  32  Atl,  350 
(dissenting  opinion),  majority  holding  finding  of  trial  court  as  to  negligence  of 
street  railway  constructing  track  so  that  person  waiting  to  take  car,  is  struck, 
conclusive  on  appeal:  Bates  v.  New  York  &  N.  E.  R.  Co.  60  Conn.  274,  22  Atl, 


959  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  744 

538    (dissenting  opinion),  majority  holding  finding  of  trial  court  as  to  carrier's 
negligence  in  failing  to  blow  whistle  pursuant  to  statute  conclusive  on  appeal. 

5  L.  R.  A.  743,  OPP  v.  WACK,  52  Ark.  288,  12  S.  W.  565. 
Acknowledgment    of    debt    barred    by    limitations. 

Cited  in  Kelly  v.  Leachman,  3  Idaho,  673,  34  Pac.  813,  holding  parol  evidence  to 
connect  principal  debt  with  interest  which  debtor  promises  to  pay  admissible  to 
take  entire  debt  out  of  statute  of  limitations:  Cotulla  v.  Urbahn,  —  Tex.  — , 
34  L.R.A. (X.S.)  349,  135  S.  W.  1159,  holding  that  acknowledgment  in  order  to 
take  debt  out  of  statute  of  limitations  must  specify  debt  if  more  than  one  exists. 

Cited  in  footnotes  to  Krueger  v.  Krueger,  7  L.  R.  A.  72,  which  holds  acknowl- 
edgment, to  remove  limitation,  must  be  clear  and  unconditional;  Slaughter's 
Succession,  58  L.  R.  A.  408,  which  holds  bar  of  limitation  not  removed  by  ex- 
pression of  ability  to  pay  debt,  followed  by  part  payment;  Kleis  v.  McGrath, 
69  L.R.A.  260,  which  holds  barred  note  not  revived  by  giving  smaller  note  for 
interest  due  without  referring  to  earlier  note. 

Cited  in  notes   (24  Am.  St.  Rep.  496)   as  to  what  acknowledgment  will  remove 
bar  of  statute  of  limitations;    (18  L.R.A. (N.S.)    224)    on  effect  of  giving  check 
to  toll  statute  of  limitations. 
Running:  of  limitations. 

Cited  in  Wilcox  v.  Wilcox,  139  Mich.  370,  102  N.  W.  954,  as  to  when  statute 
of  limitations  begins  to  run. 

5  L.  R.  A.  744,  McQUEENEY  v.  PHOENIX  IXS.  CO.  52  Ark.  257,  20  Am.  St.  Rep. 

179,  12  S.  W.  498. 
Entire    contract. 

Cited  in  Higgins  v.  Gager,  65  Ark.  609,  47  S.  W.  848,  holding  valid  parol  lease 
for  term  rendered  void  and  unenforceable  where  it  contains  void  collateral  stipu- 
lation, the  consideration  payable  under  lease  being  entire;  Reeder  v.  Meredith, 
78  Ark.  117,  115  Am.  St.  Rep.  22,  93  S.  W.  558,  holding  where  a  deed  to 
different  tracts  of  land  was  based  on  the  same  consideration  and  was  an  entire 
transaction  and  the  conveyance  was  voidable  as  to  certain  of  the  lands  the 
entire  deed  was  voidable. 
For  insurance. 

Cited  in  Southern  F.  Ins.  Co.  v.  Knight,  111  Ga.  635,  52  L.  R.  A.  74,  78  Am. 
St.  Rep.  216,  36  S.  E.  821,  holding  insurance  on  both  building  and  stock  vitiated 
by  failure  to  take  inventory  of  stock  as  provided  by  policy,  the  premium  for  whicli 
is  payable  in  gross  sum;  Phoenix  Ins.  Co.  v.  Public  Parks  Amusement  Co.  63 
Ark.  202,  37  S.  W.  959,  holding  entire  policy,  apportioned  to  different  items  or 
classes  of  property,  void  as  to  all  where  stipulation  of  sole  ownership  by  insured 
false  as  to  some  of  property;  Planters'  Mut.  Ins.  Co.  v.  Loyd,  71  Ark.  294,  75 
S.  W.  725,  denying  husband's  right  to  recover  insurance  on  personal  property 
under  policy  also  covering  wife's  land;  Worley  v.  State  Ins.  Co.  91  Iowa,  153, 
59  Am.  St.  Rep.  334,  59  N.  W.  16,  holding  policy  on  house  and  barn  not  avoided 
by  vacation  of  house;  Capital  F.  Ins.  Co.  v.  Kaufman,  91  Ark.  318,  121  S.  W. 
289,  as  to  contract  of  insurance  being  indivisible;  Benham  v.  Farmers'  Mut. 
F.  Ins.  Co.  165  Mich.  418,  —  L.R.A.(N.S.)  — ,  131  N.  W.  87,  Ann.  Cas.  1912C, 
983,  to  the  point  that  where  premium  is  gross  sum  contract  of  insurance  cover- 
ing separate  items  should  be  considered  as  being  entire. 

Cited  in  footnotes  to  State  Ins.  Co.  v.  Schreck.  6  L.  R.  A.  524,  which  holds 
policy  separately  valuing  personalty  and  realty  separable;  Coleman  v.  New 
Orleans  Ins.  Co.  16  L.  R.  A.  174,  which  holds  policy  for  separate  amounts  on 
storehouse  and  goods  severable. 


5  L.R.A.  744]  L.  R.  A.  CASES  AS  AUTHORITIES.  960 

Cited  in  notes  (8  L.  R.  A.  834)  on  entire  and  severable  contracts  of  fire  in- 
surance; (19  L.  R.  A.  213)  on  severability  of  insurance  in  same  policy. 

Distinguished  in  Clinton  v.  Norfolk  Mut.  F.  Ins.  Co.  176  Mass.  491,  50  L.  R.  A. 
836,  79  Am.  St.  Rep.  325,  57  N.  E.  998,  holding  sale  of  insured  property  with 
reservation  of  life  estate  does  not  avoid  policy  stipulating  against  sale  of  entire 
premises. 
Vacancy    of    premise*. 

Cited  in  Dwelling-House  Ins.  Go.  v.  Osborn,  1  Kan.  App.  206,  40  Pac.  1099, 
holding  houses  on  adjoining  lots,  one  of  which  is  occupied  by  insured  as  resi- 
dence, the  other  for  cooking  and  general  purposes,  not  vacant  within  meaning  of 
policy;  Central  Montana  Mines  Co.  v.  Fireman's  Fund  Ins.  Co.  92  Minn.  229, 
•99  N.  W.  1120,  as  to  distinction  between  permanent  and  temporary  cessation 
of  operations  in  factories  in  regard  to  warranty  against  vacancy. 

Cited  in  footnote  to  Henderson  Trust  Co.  v.  Stuart,  48  L.  R.  A.  49,  which 
holds  executor  liable  for  loss  of  insurance  from  failure  to  apply  for  extension  of 
vacancy  permit. 

Cited  in  note  (9  L.  R.  A.  81)  on  condition  against  vacancy  and  nonoccupancy. 

5  L.  R.  A.  746,  HARRISON  v.  N1COLLET  NAT.  BANK,  41  Minn.  488,  16  Am. 

St.  Rep.  718,  43  N.  W.  336. 
Nature  of  checks  and  drafts. 

Cited  in  Estes  v.  Levering  Shoe  Co.  59  Minn.  508,  50  Am.  St.  Rep.  424,  61 
N.  W.  674,  holding  statute  relating  to  "promissory  notes  or  bills  of  exchange" 
applicable  to  checks;  Fidelity  &  D.  Co.  v.  National  Bank,  48  Tex.  Civ.  App.  305, 
106  S.  W.  782,  holding  that  instrument  directing  bank  to  pay  not  exceeding 
•certain  sum  on  failure  of  drawer  to  comply  with  certain  contract  is  not  check. 

Cited  in  notes   (7  L.  R.  A.  595)   on  banking  check;    (23  L.  R.  A.  173)    on  the 
nature  of  drafts  by  one  bank  on  another. 
Liability    of    bank    to    depositor. 

Cited  in  Peabody  v.  Citizens'  State  Bank,  98  Minn.  307,  108  N.  W.  272. 
on  nature  of  bank's  liability  to  depositor  and  its  duty  to  pay  only  upon  demand 
at  bank  during  banking  hours. 

5  L.  R.  A.  748,  McMAHON  v.  GRAY,  150  Mass.  289,  22  N.  E.  923. 

Dower    rights. 

Cited  in  Smith  v.  Shaw,  150  Mass.  298,  22  N.  E.  924,  holding  widow  without 
estate  in  lands  of  deceased  husband,  before  assignment  of  dower;  Flynn  v.  Flynn, 
171  Mass.  314,  42  L.  R.  A.  99,  68  Am.  St.  Rep.  427,  50  N.  E.  650,  holding  dower 
interest  does  not  attach  to  fund  received  for  public  use  of  lands,  on  contingency 
of  wife's  surviving  husband;  Latourette  v.  Latourette,  52  App.  Div.  194,  65  N.  Y. 
Supp.  8,  holding  unassigned  dower  right  attachable;  Fletcher  v.  Tuttle,  97  Me. 
496,  54  Atl.  1110;  Harper  v.  Clayton,  84  Md.  350,  35  L.  R,  A.  212,  57  Am.  St. 
Rep.  407,  35  Atl.  1083,  holding  unassigned  right  of  dower  not  subject  to  creditor's 
bill;  Stewart  v.  Tennant,  52  W.  Va.  578,  44  S.  E.  223  (dissenting  opinion),  ma- 
jority holding  that  widow  has  interest  in  oil  taken  from  land  by  heir  before 
assignment  of  dower;  Neal  v.  Davis,  53  Or.  432,  99  Pac.  69,  holding  the  dower 
interest  of  a  widow  while  unassigned  is  a  mere  right  of  action  and  she  cannot 
convey  to  another  any  vested  legal  right  in  the  land. 

Cited  in  footnote  to  Kursheedt  v.  Union  Dime  Sav.  Inst.  7  L.  R.  A.  229,  hold- 
ing dower  right  of  wife  of  defendant  in  foreclosure  of  mortgage  given  by  his 
grantor,  not  cut  off  when  wife  and  grantor  not  served. 

Cited  in  notes   (23  L.  R.  A.  647)    on  right  of  dower  as  subject  to  attachment 


961  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  750 

or  levy  on  execution;   (63  L.  R.  A.  698)  on  equitable  remedy  to  subject  unassigned 
dower  to  judgment  after  return  of  no  property  found. 
Descent    of    property. 

Cited  in  Eastham  v.  Barrett,  152  Mass.  58,  25  N.  E.  33,  holding  that  statutory 
estate  given  husband  descends  to  his  heirs  although  not  assigned  during  life; 
Proctor  v.  Clark,  154  Mass.  49,  12  L.  R.  A.  724,  27  N.  E.  673,  holding  widow 
"heir"  of  husband  under  Stat.  1880,  chap.  211. 

5  L.  R.  A.  750,  GOODRICH  v.  NEW  YORK  C.  &  H.  R.  R.  CO.  116  N.  Y.  398, 

26  N.  Y.  S.  R.  767,  15  Am.  St.  Rep.  410,  22  N.  E.  397- 
Master's  duty  as  to  servant's  safety. 

Cited  in  Millott  v.  New  York  &  N.  E.  R.  Co.  46  N.  Y.  S.  R.  146,  19  N.  Y.  Supp. 
122,  sustaining  judgment  where  brakeman's  arm  was  crushed  because  one  draw- 
head  was  lower  than  the  one  opposite;  Renninger  v.  New  York  C.  &  H.  R.  R.  Co. 

11  App.  Div.  580,  42  N.  Y.  Supp.  813    (dissenting  opinion),  to  point  that  pin, 
driven  too  tightly  into  coupling  link,  was  defective  appliance;  Bennett  v.  Green- 
wich &  J.  R.  Co.  84  Hun,  217,  32  N.  Y.  Supp.  457,  holding  defendant's  negli- 
gence question   for  jury,  bumpers  being  of  different  heights  and  crooked  links 
not  furnished;   Donohue  v.  Brooklyn  City  R.  Co.  38  N.  Y.  S.  R.  486,  14  N.  Y. 
Supp.  639,  upholding  recovery  where  bumpers  were  of  different  heights;  Rigdon 
v.  Allegany  Lumber  Co.  37  N.  Y.  S.  R.  517,  13  N.  Y.  Supp.  871,  holding  it  ques- 
tion for  jury  whether  lumber  stalls  were  properly  constructed;  Quill  v.  Empire 
State  Teleph.  &  Teleg.  Co.  92  Hun,  545,  37  N.  Y.  Supp.  1149,  Affirming  13  Misc. 
441,  34  N.   Y.   Supp.  470,  holding  telephone  company  responsible   for  negligent 
setting  of  insulator;  Meyers  v.  Illinois  C.  R.  Co.  49  La.  Ann.  28,  21  So.  120,  up- 
holding recovery  where  defendant's  warning  of  defects  was  by  notice  not  readily 
decipherable;  Texas  &  P.  R.  Co.  v.  Archibald,  170  U.  S.  670,  42  L.  ed.  1190,  18 
Sup.  Ct.  Rep.  777,  requiring  employer  to  use  reasonable  care  to  see  that  its  own 
and  other  cars  are  fit  to  use;  Costikyan  v.  Rome,  W.  &  O.  R.  Co.  58  Hun,  592, 

12  N.   Y.   Supp.   683,   holding   carrier   owes   passenger   duty   of   furnishing   cars 
equipped  with  safe  and  suitable  appliances;  Sutter  v.  New  York  C.  &  H.  R.  R. 
Co.  79  App.  Div.  367,   79  N.  Y.   Supp.   1106,  holding  company  liable  for  death 
from  collision  due  to  failure  to  provide  chimney  for  headlight. 

Cited  in  footnotes  to  Neeley  to  Southwestern  Cotton  Seed  Oil  Co.  64  L.R.A. 
146,  holding  refusal  to  submit  to  jury  question  of  master's  negligence  in  furnish- 
ing defective  ladder  used  in  adjusting  belt,  error;  Crawford  v.  United  R.  &  E. 
Co.  70  L.R.A.  489,  which  holds  street  car  company  liable  for  injury  to  employee 
by  defect  in  car  due  to  custom  in  leaving  it  for  several  hours  of  night  in  public 
street  after  inspection,  without  rule  or  regulation  for  guarding  from  negligent 
or  wanton  injury. 

Cited  in  notes  (41  L.R.A.  131)  on  qualification  of  employer's  liability  by 
servant's  duty  to  acquaint  himself  with  his  environment;  (75  Am.  St.  Rep.  599; 
98  Am.  St.  Rep.  307;  37  L.  eel.  U.  S.  728)  on  duty  of  master  as  to  machinery 
and  appliances;  (116  Am.  St.  Rep.  112)  on  presumption  of  exercise  of  care  in 
furnishing  safe  machinery  and  appliances. 

Distinguished  in  McFarland  v.  New  York  C.  &  H.  R.  R.  Co.  9  App.  Div. 
629,  41  N.  Y.  Supp.  525,  reversing  judgment  for  plaintiff  where  defect  was  not 
sole  cause  of  injury;  Edall  v.  New  England  R.  Co.  18  App.  Div.  217,  79  N.  Y.  S.  R. 
960,  45  N.  Y.  Supp.  959.  holding  company  not  liable  where  drawheads  met  end, 
although  not  on  a  level;  Ellsbuiy  v.  N<-w  York,  N.  H.  &  H.  R.  Co.  172  Mass.  131, 
70  Am.  St.  Rep.  248,  51  N.  E.  415,  holding  master  not  liable  for  injury  to  inex- 
perienced servant  in  trying  to  couple  cars  with  defective  apparatus. 
L.R.A.  Au.  Vol.  I.— 61. 


5  L.R.A.  750]  L.  R.  A.  CASES  AS  AUTHORITIES.  962 

Duty   to   inspect. 

Cited  in  McDonald  v.  Fitchburg  R.  Co.  19  App.  Div.  578,  46  N.  Y.  Supp. 
600,  holding  company  responsible  for  defects  discoverable  by  ordinary  inspection; 
Albert  v.  New  York  C.  &  H.  R.  R.  Co.  80  Hun,  155,  61  N.  Y.  S.  R.  709..  29  N.  Y. 
Supp.  1126,  holding  company's  duty  of  inspection  of  cars  measured  by  the  danger; 
Jennings  v.  New  York,  N.  H.  &  H.  R.  Co.  12  Misc.  410,  33  N.  Y.  Supp.  585? 
holding  that  brakeman,  after  cars  have  been  repaired  and  inspected,  may  assume 
them  safe  to  handle;  Eaton  v.  New  York  C.  &  H.  R.  R.  Co.  163  N.  Y.  394,  79 
Am.  St.  Rep.  600,  57  N.  E.  609,  holding  rule  requiring  brakemen  or  trainmen 
to  inspect  does  not  relieve  company;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Brown,  67 
Ark.  307,  54  S.  W.  865;  Mackey  v.  Baltimore  &  P.  R.  Co.  8  Mackey,  300;  Balti- 
more &  P.  R.  Co.  v.  Mackey,  157  U.  S.  91,  39  L.  ed.  631,  15  Sup.  Ct.  Rep.  491; 
Bennett  v.  Northern  P.  R.  Co.  2  N.  D.  115,  13  L.  R,  A.  467,  49  N.  W.  408,— 
holding  employer  bound  to  inspect  foreign  cars  on  its  line,  as  well  as  its  own ; 
Missouri,  K.  &  T.  R.  Co.  v.  Chambers,  17  Tex.  Civ.  App.  491,  43  S.  W.  1090, 
holding  company  bound  to  inspect  inside  of  foreign  car  if  outside  inspection  gives 
notice  of  probable  defect  there;  Alabama  G.  S.  R.  Co.  v.  Carroll,  28  C.  C.  A.  222, 
52  U.  S.  App.  442,  84  Fed.  787,  as  to  servant's  negligence  in  failure  to  inspect, 
when  so  required  by  rules  of  master;  Felton  v.  Bullard,  37  C.  C.  A.  5,  94  Fed. 
785,  holding  master  liable,  independent  of  statute,  for  negligence  in  inspection ; 
Curtis  v.  Chicago  &  N.  W.  R.  Co.  95  Wis.  468,  70  N.  W.  665,  holding  defendant 
responsible  for  not  keeping  guard  rail  properly  blocked;  McGuire  v.  Bell  Telcph. 
Co.  167  N.  Y.  221,  52  L.  R.  A.  442,  60  N.  E.  433  (dissenting  opinion),  majority 
holding  that  company  using  leased  telephone  pole  owes  lineman  duty  of  inspec- 
tion; Renninger  v.  New  York  C.  &  H.  R.  R.  Co.  11  App.  Div.  578,  42  N.  Y.  Supp. 
813  (dissenting  opinion),  as  to  duty  to  inspect  foreign  car;  Kiley  v.  Rutland 
R,  Co.  80  Vt.  547,  68  Atl.  713,  13  A.  &  E.  Ann.  Caa.  269,  holding  a  car  inspector 
is  not  a  fellow  servant  of  the  conductor  of  a  train  but  is  intrusted  with  a  duty 
resting  on  the  railroad  company  which  it  cannot  delegate  so  as  to  relieve  itself 
from  liability  for  nonperformance;  Missouri,  K.  &  T.  R.  Co.  v.  Harris,  45  Tex. 
Civ.  App.  546,  101  S.  W.  506,  holding  a  railroad  company  owes  to  trainmen  the 
same  duty  of  inspecting  all  cars  in  its  train  whether  they  belong  to  it  or  to 
another  company. 

Cited  in  footnote  to  Budge  v.  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  58  L.  R.  A.  333, 
which  holds  master  failing  to  inspect  foreign  cars  liable  for  consequences  of 
defects  discoverable  by  ordinary  inspection. 

Cited  in  notes    (41  L.R.A.   103)    on  employer's  duty  as  to  supervision  of  ap- 
pliance  not   owned  by   him,   but   used   by   his   servants;     (1   L.R.A. (N.S.)    670) 
on   negligence   of  servant  in   sending  out  unsafe   street  cars   causing   injury   to 
other  servants. 
Risks    of    employment    assumed. 

Cited  in  Berrigan  v.  New  York,  L.  E.  &  W.  R.  Co.  131  N.  Y.  585,  30  N.  E.  57, 
holding  carelessness  of  engineer  in  backing  engine  upon  freight  cars,  risk  assumed 
by  brakeman;  Hannigan  v.  Lehigh  &  H.  R.  R.  Co.  157  N.  Y.  249,  51  N.  E.  992, 
holding  meeting  of  drawheads  an  ordinary  risk  of  brakeman's  service;  Eaton 
T.  New  York  C.  &  H.  R.  R.  Co.  14  App.  Div.  25,  43  N.  Y.  Supp.  666,  holding  defect 
not  discoverable  by  reasonable  inspection,  a  risk  of  employment;  Union  Stock- 
Yards  Co.  v.  Goodwin,  57  Neb.  142,  77  N.  W.  357,  holding  that  servant  assumes 
only  same  risk  as  to  other  cars  as  he  does  with  his  master's. 

Cited  in  footnote  to  Neeley  v.  Southwestern  Cotton  Seed  Oil  Co.  64  L.R.A. 
146,  which  holds  employee's  contributory  negligence  in  using  defective  ladder 
to  adjust  belt  upon  moving  machinery  after  complaining  of  the  risk,  one  for 
the  jury. 


963  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.RJL  756 

Distinguished  in  Cleary  v.  Long  Island  R.  Co.  54  App.  Div.  289,  66  N.  Y. 
Supp.  568,  holding  that  brakeman  attempting  to  couple  after  seeing  danger 
assumes  the  risk;  Gerstner  v.  New  York  C.  &  H.  R.  R.  Co.  81  App.  Div.  565, 
80  N.  Y.  Supp.  1063,  denying  recovery  for  injuries  due  to  part  of  car  giving  way 
when  mounted  by  brakeman  to  stop  it  on  "cripple  track;"  Arnold  v.  Delaware 
&  H.  Canal  Co.  125  N.  Y.  17,  25  N.  E.  1064,  holding  that  brakeman  engaged  in 
removing  crippled  cars  takes  risk  of  injury  from  broken  drawheads;  Thomas  v. 
Missouri  P.  R.  Co.  109  Mo.  216,  18  S.  W.  980  (dissenting  opinion),  majority 
holding  that  switchman  and  coupler  assume  risk  of  coupling  all  cars  in  good 
order. 
Contributory  negligence. 

Cited  in  Mahoney  v.  New  York  C.  &  H.  R.  "R.  Co.  39  N.  Y.  S.  R.  912,  15  N.  Y. 
Supp.  501,  sustaining  recovery  for  death  of  brakeman  killed  through  absence  of 
bumper;  Joyce  v.  Rome,  W.  &  O.  R.  Co.  80  Hun,  601,  61  N.  Y.  S.  R.  586,  holding 
question  of  contributory  negligence,  in  case  of  defective  appliances,  for  jury; 
Ohio  &  M.  R.  Co.  v.  Wangelin,  43  111.  Rep.  335,  upholding  recovery  where  brake- 
man could  not  notice  defect  until  cars  were  nearly  together;  Memphis  &  C.  R. 
Co.  v.  Graham,  94  Ala.  553,  10  So.  283,  holding  going  between  moving  cars  to 
couple,  in  absence  of  rule  forbidding  it,  not  necessarily  contributory  negligence; 
Murphy  v.  Baltimore  &  O.  S.  W.  R.  Co.  114  Ky.  702,  71  S:  W.  886,  holding 
under  facts  question  of  contributory  negligence  was  for  jury. 

Cited  in  note  (11  L.  R.  A.  131)  on  right  of  self  protection  as  affecting  contribu- 
toiy  negligence. 

5  L.  R.  A.  752,  McGUIRE  v.  RAPID  CITY,  6  Dak.  346,  43  N.  W.  706. 
Certificate   of   completion   of   contract. 

Cited  in  Seim  v.  Krause,  13  S.  D.  535,  83  N.  W.  583,  holding  bona  fide  appraise- 
ment of  architect  as  to  value  of  alteration,  conclusive. 

Cited  in  note  (17  L.  "R.  A.  212)   on  collusiveness  of  engineer's  certificate. 
3Iunicipal  powers  an  to  public  works. 

Cited  in  Kramer  v.  Los  Angeles,  147   Cal.  676,  82  Pac.  334,  holding  general 
power  to  construct  and  maintain  streets  is  sufficient  to  authorize  city  to  con- 
struct sewer  to  carry  off  storm  waters. 
City  engineer. 

Cited  in  Martindale  v.  Rochester,  171  Ind.  261,  86  N.  E.  321,  on  validity  of 
contract  for  street  improvement  containing  delegation  of  power  to  city  engineer. 

5  L.  R.  A.  756,  GAITHER  v.  WILMER,  71  Md.  361,  7  Am.  St.  Rep.  542,  18 

Atl.  590. 
Rules    as    to    sealed    verdicts. 

Cited  in  Farmer's  Packing  Co.  v.  Brown,  87  Md.  14,  39  Atl.  625,  holding  sealed 
verdict  may  be  corrected  by  jury  at  any  time  before  recorded. 

Cited  in  footnotes  to  Kramer  v.  Kister,  44  L.  R.  A.  432,  which  requires  dis- 
charge of  jury  on  one  juror's  dissent  from  sealed  verdict;  Hechter  v.  State,  56 
L.  R.  A.  457,  which  holds  sealed  verdict  of  guilty  on  some  counts  of  indictment 
not  invalidated  by  adding  not  guilty  as  to  others,  before  recording. 
Validity  of  general  verdict  in  action  for  damages. 

Cited   in   Sonnesyn  v.  Akin,  14  N.  D.  261,   104  N.  W.   1026,  holding  general 
verdict,  in  action  for  damages,  finding  for  plaintiff  but  without  fixing  damages, 
fatally  defective. 
Effect   of  uncertainty   in   verdict. 

Cited  in  Long  v.  Wayne  Circuit  Judge,  136  Mich.  14,  98  N.  W.  744,  holding 


5  L.R.A.  756]  L.  R.  A.  CASES  AS  AUTHORITIES.  964 

verdict  for  "full  value  of  estate,"  in  matter  of  claim  against  decedent's  estate 
too  uncertain  and  indefinite  to  warrant  judgment. 
Power  of  court  to  amend  •verdict. 

Cited  in  Diamond  State  Teleph.  Co.  v.  Blake,  105  Md.  576,  66  Atl.  631,  holding 
in  action  against  two  defendants  jointly  where  court  at  close  of  plaintiff's  case 
directs  jury  to  return  verdict  for  one  defendant,  it  is  not  error  for  court  after 
judgment  entered  on  verdict  to  amend  verdict  by  designating  particular  defend- 
ant against  whom  'operative;  Buttron  v.  Bridell,  228  Mo.  635,  129  S.  W.  12, 
to  the  point  that  court  should  correct  informal  verdict  in  open  court  with  con- 
sent of  jury  or  have  jury  retire  and  correct  informality. 

5  L.  R.  A.  759,  KEEDY  v.  LONG,  71  Md.  385,  18  Atl.  704. 

Followed  without  special  discussion  in  Keedy  v.  Crane,  71  Md.  396,  18  Atl.  707. 
•General  issue. 

Cited  in  New  York,  P.  &  N.  R.  Co.  v.  Jones,  94  Md.  29,  50  Atl.  423,  and 
Spencer  v.  Patten,  84  Md.  425,  35  Atl.  1097,  holding  plea  amounting  to  general 
issue  bad  on  demurrer;  McAllister  v.  State,  94  Md.  300,  50  Atl.  1046,  holding 
plea  not  bad  because  facts  set  up  in  avoidance  provable  under  general  issue;  E. 
J.  Codd  Co.  v.  Parker,  97  Md.  326,  55  Atl.  623,  holding  plea  admitting  sale  of 
goods,  but  setting  up  judgment  against  principal  as  defense,  good  as  special 
plea;  Baltimore  Belt  R.  Co.  v.  Sattler,  100  Md.  322,  59  Atl.  654,  3  A.  &  E. 
Ann.  Cas.  660,  holding  defendant  has  right  to  plead  specially  defenses  in  con- 
fession and  avoidance  which  would  be  admissible  in  evidence  under  general  issue, 
and  this  fact  does  not  make  plea  bad. 
election  of  remedies. 

Cited  in  Bolton  Mines  Co.  v.  Stokes,  82  Md.  58,  31  L.  R.  A.  790,  33  Atl.  491, 
holding  proceeding  to  judgment  on  one  of  two  alternative  remedies  precludes 
resorting  to  the  other. 

Cited  in  note   (3  L.R.A.  (X.S.)   1043)   on  right  to  maintain  separate  action  for 
nondelivery  of  each  instalment  under  entire  contract. 
—  By    discharged    employee. 

Cited  in  Olmstead  v.  Bach,  78  Md.  145,  22  L.  R.  A.  76,  footnote  p.  74,  44  Am. 
St.  Rep.  273,  27  Atl.  501,  holding,  after  payment  of  wrongfully  discharged 
servant  up  to  time  of  discharge,  only  remedy  in  action  for  damages;  Olmstead 
v.  Bach  (Md.)  18  L.  OR.  A.  54,  holding  satisfied  judgment  for  one  week's  wages 
after  wrongful  discharge  not  bar  to  subsequent  suit  for  wages  thereafter  accru- 
ing; Ornstein  v.  Yahr  &  L.  Drug  Co.  119  Wis.  435,  96  N.  W.  826,  holding  sales- 
man's recovery  of  amount  equal  to  month's  pro  rata  salary  bar  to  action  for 
"wrongful  discharge;  James  v.  Parsons,  R.  &  Co.  70  Kan.  158,  78  Pac.  438, 
holding  servant  wrongfully  discharged  before  expiration  of  contract  may  treat 
-Contract  as  terminated  and  recover  on  quantum  meruit,  or  he  may  stand  on 
contract  and  recover  under  its  terms  and  for  damages  for  breach  and  citing 
annotation  also  on  this  point;  Bridgeford  v.  Meagher,  144  Ky.  487,  139  S.  W. 
750,  holding  that  action  by  servant  for  wrongful  discharge  may  be  brought  at 
any  time  after  discharge;  Carmean  v.  North  American  Transp.  &  Trading  Co. 
45  Wash.  448,  8  L.R.A.(N.S.)  596,  122  Am.  St.  Rep.  930,  88  Pac.  834,  13  A. 

6  E.  Ann.  Cas.  110,  holding  recovery  of  salary  for  several  months  after  wrongful 
discharge  under  single  contract  for  year  at  specified  salary  for  month,  bar  to 
subsequent  action  to  recover  salary  for  balance  of  contract  term. 

Cited  in  footnotes  to  Douglass  v.  Merchants'  Ins.  Co.  7  L.  R.  A.  822,  which 
holds  by-law,  authorizing  removal  of  corporate  officer  at  pleasure,  part  of  con- 
tract of  employment;  Olmstead  v.  Bach,  18  L.  R.  A.  53,  which  holds  judgment 
for  one  week's  wages  after  dismissal  not  bar  to  suit  for  subsequent  wages. 


965  L.  R.  A.  CASES  AS  AUTHORITIES.  5  L.R.A.  709 

Cited  in  notes  (24  L.R.A.  233)  on  effect  of  part  performance  of  contract  for 
services;  (5  L.R.A. (N.S.)  451)  on  right  of  wrongfully  discharged  servant  to 
wages  for  contract  period  subsequent  to  discharge;  (5  L.R.A.(N.S.)  583,  587) 
on  remedy  of  wrongfully  discharged  servant  with  respect  to  services  actually 
rendered;  (6  L.R.A. (N.S.)  53,  57,  120)  on  remedy  of  wrongfully  discharged 
servant  by  action  for  breach  of  contract;  (20  Am.  St.  Rep.  362)  on  rights  of 
servant  wrongfully  discharged;  (51  Am.  St.  Rep.  516,  517)  on  remedies  of 
employee  wrongfully  discharged. 
Kiuht  to  discharge  employee. 

Cited  in  footnote  to  Edgecomb  v.  Buekhout,  28  L.  R.  A.  816,  which  denies 
right  to  discharge  housekeeper  for  marriage  or  contemplated  marriage. 

Cited  in  note  (13  L.R.A.  73)  on  defeat  of  right  to  wages  by  servant's  dis- 
honesty. 

5  L.  R.  A.  765,  FIRST  NAT.  BANK  v.  WALTON,  13  Colo.  265,  16  Am.  St.  Rep. 

200,  22  Pac.  440. 
Definition    of    insolvency. 

Cited  in  Mitchell  v.  Bradstreet  Co.  116  Mo.  240,  20  L.  R.  A.  142,  38  Am.  St. 
Rep.  592,  22  S.  W.  358;  Consolidated  Tank  Line  Co.  v.  Kansas  City  Varnish  Co. 
45  Fed.  13;  Stone  v.  Dodge,  96  Mich.  524,  21  L.  R.  A.  287,  56  N.  W.  75,— holding 
insolvency  to  be  inability  to  make  payments  of  obligations  as  they  mature  in 
ordinary  course  of  business. 

Cited  in  note   (10  L.  R.  A.  707)   on  what  constitutes  insolvency. 

Keeping:   security    from    record. 

Followed  in  Stock-Growers'  Bank  v.  Newton,  13  Colo.  257,  22  Pac.  444,  holding 
agreement  to  keep  trust  deed  from  record  express  evidence  of  fraudulent  intent. 

Cited  in  National  State  Bank  v.  Sandford  Fork  &  Tool  Co.  157  Ind.  18,  60  N. 
E.  699,  holding  chattel  mortgage  kept  from  record,  without  agreement  to  conceal, 
valid;  Johnston  v.  Columbus  Ins.  &  Bkg.  Co.  85  Miss.  259,  38  So.  100,  holding 
withholding  from  record  of  conveyances  by  bank  president  to  bank  of  practically 
all  his  property,  for  indebtedness  due  it,  to  enable  him  to  secure  credit  he 
could  not  have  obtained  otherwise,  fraudulent  as  to  creditors. 

Cited  in  note   (55  L.  R.  A.  280)   on  effect  of  levy  under  void  or  voidable  judg- 
ment. 
Setting:    aside    fraudulent    judgment. 

Distinguished  in  Pitkin  v.  Burnham,  62  Neb.  395,  55  L.  R,  A.  286,  89  Am.  St. 
Rep.  763,  87  N.  W.  160,  holding  officer  levying  through  execution  on  voidable 
judgment  cannot  be  ousted  by  another  officer  with  another  process. 

5  L.  R.  A.  769,  JOHNSON  v.  ROBINSON  CONSOL.  MIN.  CO.  13  Colo.  258,  22 

Pac.  459. 
Unilateral     contracts. 

Cited  in  Smith  v.  Bateman,  25  Colo.  242,  53  Pac.  457,  holding  mere  written 
agreement  to  sell  land  withdrawable  before  acceptance. 
Requisites    of    pleadings. 

Cited  in  Calvert  v.  Calvert,  15  Colo.  395,  24  Pac.  1043,  holding  judgment  will 
not  be  disturbed  because  of  omission  of  "forthwith"  from  order  of  publication ; 
Cramer  v.  Oppenstein,  16  Colo.  502,  27  Pac.  713,  holding  facts,  not  forms,  the 
essentials  of  good  pleadings;  Leh  v.  Delaware,  L.  &  W.  R.  Co.  30  Pa.  Super. 
Ct.  401,  holding  defendant  has  right  to  be  advised  by  pleadings  in  advance  of 
trial  of  substantial  terms  and  conditions  of  contract  under  which  liability  to 
judgment  is  sought  to  be  rnforced. 


5  L.R.A.  769]  L.  R.  A.  CASES  AS  AUTHORITIES.  966 

Aider    by    answer. 

Cited  in  Salazar  v.  Taylor,  18  Colo.  541,  33  Pac.  369,  holding,  on  supplying 
defects  in  complaint  by  answer,  objections  not  available  in  arrest  of  judgment; 
St.  Louis  &  S.  F.  R.  Co.  v.  Keller,  10  Kan.  App.  485,  62  Pac.  905,  holding  defect- 
ive petition  cured  by  averment  in  answer;  Empire  Ranch  &  Cattle  Co.  v.  Bender, 
49  Colo.  523,  113  Pac.  494,  holding  that  an  omission  in  complaint  to  quiet  title, 
of  averment  that  claim  of  defendant  is  "adverse  to  plaintiff"  is  cured  by  answer 
asserting  adverse  title. 
Amendments  and  waiver. 

Cited  in  Hammer  v.  Downing,  39  Or.  518,  64  Pac.  651,  holding  material  amend- 
ments, because  of  variance,  could  not  be  disregarded  as  though  made  by  trial 
court;  Brahoney  v.  Denver  U.  &  P.  R.  Co.  14  Colo.  29,  23  Pac.  172,  holding  failure 
to  demur  to  complaint  for  misjoinder  of  parties  or  improperly  united  causes  of 
action  waives  objection. 
Performance  of  contract. 

Cited  in  Owl  Canon  Gypsum  Co.  v.  Ferguson,  2  Colo.  App.  232,  30  Pac.  255 
(dissenting  opinion),  majority  holding  broker  employed  to  sell,  entitled  to  com- 
missions on  procuring  purchaser  able  and  willing  to  buy,  though  sale  made  to 
another;  Lombard  v.  Overland  Ditch  &  Reservoir  Co.  41  Colo.  256,  92  Pac.  695, 
holding  party  who  sues  for  substantial  performance  can  recover  on  quantum 
meruit  only. 
Variance,  when  material. 

Cited  in  People's  Min.  &  Mill.  Co.  v.  Central  Consol.  Mines  Corp.  20  Colo. 
App.  564,  80  Pac.  479,  holding  in  action  for  specific  performance,  where  contract 
pleaded  is  written  contract  of  four  cotenants,  and  evidence  showed  written  con- 
tract with  parol  proof  of  authority  to  sign  for  one  party,  variance  material. 

5  L.  R.  A.  775,  TOPEKA  v.  MARTINEAU,  42  Kan.  387,  22  Pac.  419, 

Followed  without  discussion  in  Parker  v.  Atchison,  46  Kan.  18,  26  Pac.  435. 
Damages  for  change  of  grade  in  street. 

Cited  in  Topeka  v.  Sells,  48  Kan.  533,  29  Pac.  604,  holding  cost  of  lowering 
floors   and   adjusting  building   to   new   grade  may  be   considered   as   element  of 
damage;  Smith  v.  Kansas  City,  128  Mo.  31,  30  S.  W.  314,  holding  jury  may  con- 
sider cost  of  restoring  property  to  same  condition  as  before  change. 
Abandonment    of    railroad. 

Cited  in  Eckington  &  S.  H.  R.  Co.  v.  McDevitt,   18  App.  D.  C.  507,  holding 
measure  of  damage  to  landowner  for  abandonment  of  railroad   is   difference   in 
value  of  land  with  road  in  operation  and  that  with  road  abandoned. 
View    of    premises    by    jury    as    evidence    of    damage. 

Cited  in  Chicago,  <R.  I.  &  P.  R.  Co.  v.  Farwell,  60  Neb.  325,  83  N.  W.  71,  hold- 
ing jury  may  make  result  of  observations  at  locus  in  quo,  in  connection  with  other 
evidence,  basis  of  verdict;  Chicago,  K.  &  W.  R.  Co.  v.  Mouriquand,  45  Kan. 
172,  25  Pac.  567,  and  Wellington  Waterworks  v.  Brown,  6  Kan.  App.  728,  50  Pac. 
966,  holding  jury  in  condemnation  proceedings  at  liberty  to  consider  what  they 
saw  in  and  about  premises,  in  arriving  at  verdict;  Chicago,  K.  &  W.  R.  Co.  v. 
Willits,  45  Kan.  115,  25  Pac.  576,  holding  knowledge  acquired  by  jury  from  view 
may  be  considered  in  estimating  damage  from  excavations  made  by  railroad  on 
land  adjacent  to  right  of  way;  Bigelow  v.  Draper,  6  N.  D.  173,  69  1ST.  W.  570, 
Junction  City  v.  Blades,  1  Kan.  App.  94,  41  Pac.  677;  Chicago,  K.  &  W.  R.  Co. 
v.  Parsons,  51  Kan.  416,  32  Pac.  1083, —  holding  verdict  must  be  supported  by 
other  evidence  than  observations  of  jury;  Ormund  v.  Granite  Mt.  Min.  Co.  11 
Mont.  309,  28  Pac.  289,  holding  that,  in  action  to  determine  right  of  possession 
to  mining  property,  jury  may  consider  personal  observations  in  connection  with 


«67  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  777 

other  evidence;  Moorhead  v.  Arnold,  73  Kan.  142,  84  Pac.  742,  holding  evidence 
obtained  by  inspection  admissible  where  supplemented  by  oral  evidence;  Blincoe 
v.  Choctaw,  O.  &  W.  R.  Co.  16  Okla.  306,  4  L.R.A.  (NJ3.)  898,  83  Pac.  903,  8 
A.  &  E.  Ann.  Cas.  689,  holding  impressions  obtained  on  view  may  be  considered 
in  connection  with  evidence  offered  at  trial. 

Cited  in  note    (42  L.  R.  A.  388,  389)    on  view  by  jury  in  general. 

Disapproved  in  Zanesville,  M.  &  P.  R.  Co.  v.  Bolen,  76  Okla.  St.  379,  11 
L.R.A.(N.S.)  1108,  81  N.  E.  681,  10  A.  &  E.  Ann.  Cas.  658,  holding  impressions 
made  on  minds  of  jurors  in  appropriation  case  by  view  of  premises  not  evi- 
dence in  case. 

5  L.  R.  A.  777,  HARRIS  v.  HOWE,  74  Tex.  534,  15  Am.  St.  Rep.  862,  12  S. 

W.  224. 
Liability    of    connecting:    carrier*. 

Cited  in  Davis  v.  Houston  &  T.  C.  R.  Co.  25  Tex.  Civ.  App.  12,  59  S.  W.  844, 
holding  carrier  selling  ticket  over  connecting  line  not  liable  for  connecting  car- 
rier's misdirection  of  passenger;  International  &  G.  N.  R.  Co.  v.  Duncan,  55 
Tex.  Civ.  App.  449,  121  S.  W.  362,  holding  railroad  not  liable  for  injury  to 
person  who  had  completed  his  journey  over  its  road  and  was  waiting  at  station 
to  take  train  on  connecting  line;  International  &  G.  X.  R.  Co.  v.  Doolan,  56 
Tex.  Civ.  App.  508,  120  S.  W.  1118,  holding  railroad  not  responsible  for  mistake 
of  agent  of  another  company  in  selling  passenger  wrong  ticket  for  passage  over 
both  lines. 

Cited  in  footnotes  to  Chicago  &  A.  R.  Co.  v.  Mulford,  35  L.R.A.  599,  which 
denies  liability  of  company  selling  tickets  for  failure  of  connecting  roads  to  honor 
same;  Kansas  City  F.  S.  &  M.  R.  Co.  v.  Washington,  69  L.R.A.  65.  which  holds 
initial  carrier  checking  baggage  to  destination  on  through  ticket  liable  for  loss 
on  connecting  line;  Brezewitz  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  70  L.R.A.  212, 
which  holds  that  undertaking  by  ticket  agent  that  he  will  instruct  initial  car- 
rier to  deliver  ticket  to  intending  passenger  will  not  render  his  employer  liable 
for  delay  of  initial  carrier  in  complying  with  instructions. 

Cited  in  notes   (5  Eng.  Rul.  Cas.  463,  464;  23  Am.  St.  Rep.  558)   on  liability 
of  connecting  carriers;    (106  Am.  St.  Rep.  606,  612)   on  liability  of  initial  carrier 
for  torts  or  negligence  of  connecting  lines. 
Limiting    liability    to    own    line. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  St.  John,  13  Tex.  Civ.  App.  263,  35  S.  W. 
501 ;  McCarn  v.  International  &  G.  N.  R.  Co.  84  Tex.  353,  16  L.  R,  A.  40,  31  Am. 
St.  Rep.  51,  19  S.  W.  547;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Looney,  85  Tex.  166,  16  L. 
R.  A.  474,  34  Am.  St.  Rep.  787,  19  S.  W.  1039, —  holding  carrier  may  limit 
liability  to  own  line;  International  &  G.  N.  R.  Co.  v.  Campbell,  1  Tex.  Civ.  App. 
511,  20  S.  W.  845,  upholding  carrier's  right  to  contract  against  liability  for 
wrongful  ejection  of  passenger  on  another  line;  Boling  v.  St.  Louis  &  S.  F.  R. 
Co.  189  Mo.  240,  88  S.  W.  35,  holding  initial  carrier  not  liable  for  misrake  of 
a<rent  of  carrier  at  destination  where  it  provides  on  ticket  that  it  acts  as  agent 
of  latter  carrier  only;  Eckles  v.  Missouri  P.  R.  Co.  112  Mo.  App.  251,  87  S. 
W.  99,  holding  carrier  can  by  contract  protect  itself  against  liability  for  injury 
not  occurring  on  its  own  line,  on  contract  to  carry  beyond  its  own  terminus. 

Distinguished  in  Gulf,  C.  &  S.  F.  R,  Co.  v.  Wilbanks,  7  Tex.  Civ.  App.  495, 
27  S.  W.  302.  holding  that  where  copartnership  exists  between  connecting  lines, 
they  cannot  limit  liability:  Howe  v.  Gibson,  3  Tex.  Civ.  App.  265,  22  S.  W.  828, 
Tiolding  that,  where  two  roads  were  operated  as  one  line,  suit  for  tort  was  prop- 
erly brought  against  both. 


5  L.R.A.  779]  L.  R.  A.  CASES  AS  AUTHORITIES.  968 

5  L.  R.  A.  779,  KIRCHER  v.  MILWAUKEE  MECHANICS  MUT.  IXS.  CO.  74 

Wis.  470,  43  N.  W.  487. 
Increase    of    hazard. 

Cited  in  Pool  v.  Milwaukee  Mechanics'  Ins.  Co.  91  Wis.  539,  51  Am.  St.  Rep. 
920,  65  N.  W.  54,  holding  that  whether  use  of  fumigators  increased  hazard  a  ques- 
tion for  jury;  Loyal  Mut.  F.  Ins.  Co.  v.  J.  S.  Brown  &  Bro.  Mercantile  Co. 
47  Colo.  473,  107  Pac.  1098,  holding  question  whether  building  addition  to 
property  insured  increased  risk  one  of  fact  for  jury;  Weidner  v.  Standard  Life 

6  Acci.  Ins.  Co.  130  Wis.  19,  110*  N.  W.  246,  holding  purpose  of  assault,  within 
exception  in  accident  policy,  question  of  fact  for  jury;   Siemers  v.  Meeme  Mut. 
Home  Protection  Ins.  Co.  143  Wis.  121,  139  Am.  St.  Rep.  1083,  126  N.  \V.  669, 
holding  that  trivial  or  temporary  variations  in  risk  to  ordinary  use  of  insured 
property  are  presupposed  by  parties  to  be  likely  to  occur. 

Cited  in  note   (10  L.R.A. (N.S.)   742)    on  effect  of  temporary  condition  ceasing 
before  loss,  under  general  provision  against  increase  of  risk,  or  specific  provision 
against  certain  conditions. 
Construction    of    forfeiture   clauses   in    policy. 

Cited  in  Rheims  v.  Standard  F.  Ins.  Co.  39  W.  Va.  684,  20  S.  E.  670;  Vangin- 
dertaelen  v.  Phenix  Ins.  Co.  82  Wis.  118,  33  Am.  St.  Rep.  29,  51  N.  W.  1122; 
Commercial  Bank  v.  Firemen's  Ins.  Co.  87  WTis.  303,  58  N.  W.  391 ;  Beyer  v.  St. 
Paul  F.  &  M.  Ins.  Co.  112  Wis.  143,  88  N.  W.  57, — holding  provision  for  for- 
feiture is  to  be  construed  as  favorably  to  assured  as  terms  will  permit ;  England 
v.  Westchester  F.  Ins.  Co.  81  Wis.  589,  29  Am.  St.  Rep.  917,  51  N.  W.  954,  holding 
construction  making  policy  void  in  its  inception  to  be  avoided  if  language  sus- 
ceptible of  any  other  meaning;  O'Brien  v.  Hone  Ins.  Co.  79  Wis.  403,  48  N.  W. 
714,  holding  false  representation  as  to  amount  of  encumbrance  within  condition 
that  false  statements  in  application  shall  render  policy  void. 

Cited  in  note  (9  L.  R.  A.  82)  on  conditions  against  vacancy  and  nonoccupancy. 
Misconduct  of  counsel  in  argument. 

Cited  in  Warsaw  v.  Fisher,  24  Ind.  App.  49,  55  N.  E.  42,  holding  adverse 
party's  nonproduction  of  witnesses  cognizant  of  the  facts  may  be  commented  on 
in  argument;  Smith  v.  Nippert,  79  Wis.  140,  48  N.  W.  253,  holding  misconduct 
of  counsel  in  argument  not  ground  for  reversal,  unless  abuse  of  privilege  dhown. 

Cited  in  note  (37  L.  ed.  U.  S.  1004)  as  to  when  counsel's  address  to  jury  is 
ground  of  error. 

5  L.  R.  A.  781,  SHEERS  v.  STEIN,  75  Wis.  44,  43  N.  W.  728. 
Statutory    regulations    as    to    infants,    and    custody    of. 

Cited  in  State  v.  Bailey,  157  Ind.  330,  59  L.  R.  A.  437,  61  N.  E.  730,  holding 
constitutional  rights  of  parents  not  infringed  by  statute  compelling  education  of 
children. 

Cited  in  footnote  to  People  v.  Ewer,  25  L.  R.  A.  794,  which  holds  valid,  act  pro- 
hibiting employment  of  girls  under  fourteen  as  dancers,  or  in  theatrical  exhi- 
bitions. 
—  Right    to    custody. 

Cited  in  Johnston  v.  Johnston,  89  Wis.  420,  62  N.  W.  181,  upholding  refusal 
to  deprive  mother  of  custody  of  children  in  favor  of  rich  paternal  grandfather, 
father  being  admitted  unfit,  where  mother  industrious  but  poor:  Markwell  v. 
Pereles,  95  Wis.  413,  69  N.  W.  798,  holding  father  entitled  to  child  as  against 
maternal  relatives  caring  for  it  since  wife's  death  at  his  expense,  where  he  is 
financially  able  to  support  it,  though  unsympathetic  in  nature,  and  second  wife 
young  and  inexperienced;  Hibbette  v.  Baines,  78  Miss.  705,  51  L.  R.  A.  843,  foot- 


969  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  784 

note  p.  839,  29  So.  80,  holding  father  entitled  as  against  maternal  aunts,  where 
of  good  habits  and  financial  condition,  though  children  lived  two  years  with 
grandmother  at  request  of  mother,  the  father  contributing  toward  their  expenses, 
Hussey  v.  Whiting,  145  Ind.  582,  57  Am.  St.  Rep.  220,  44  N.  E.  639,  holding 
wealthy  maternal  grandparents  entitled  to  custody  of  child  in  preference  to 
father,  where  latter  has  no  home  and  business  keeps  away  from  residence  with 
relatives  three  fourths  of  the  time;  Re  McChesney,  106  Wis.  322,  82  N.  W.  151, 
holding  maternal  grandmother  appointed  by  mother's  will  properly  preferred  to 
father  who,  prior  to  divorce,  had  been  extremely  cruel  to  both  wife  and  children, 
and  since  separation  had  refused  to  see  boy  at  death;  Schiltz  v.  Roenitz,  86  Wis. 
37,  21  L.  R.  A.  485,  39  Am.  St.  Rep.  873,  56  N.  W.  194,  denying  right  to  deprive 
parent  of  rights  as  to  child  by  proceedings  for  its  adoption  because  of  his  aban- 
donment, of  which  proceedings  he  has  no  notice;  Gilmore  v.  Kitson,  165  Ind. 
408,  74  N.  E.  1083,  holding  father  who  lives  with  his  mother  in  comfortable 
house,  and  was  of  good  habits  and  character,  entitled  to  custody  of  infant 
daughter  as  against  sister  of  deceased  wife,  although  sister  was  better  off  finan- 
cially than  father;  Robertson  v.  Bass,  52  Fla.  424,  42  So.  243,  holding  court 
will  not  disturb  status  although  mother  has  bettered  condition  by  another 
marriage,  where  several  years  before  she  had  voluntarily  relinquished  children 
when  small,  feeble  and  helpless  and  remained  stranger  to  them  thereafter;  Peese 
v,  Gellerman,  51  Tex.  Civ.  App.  42,  110  S.  W.  196,  to  the  point  that  parent  may 
be  denied  custody  of  child  if  child's  interests  will  be  benefited  thereby. 

Cited' in  footnotes  to  State  ex  rel.  Lasserre  v.  Michel,  54  L.  R.  A.  927,  which 
denies  father's  absolute  right  to  custody  of  minor  child;  Re  Lally,  16  L.  R.  A. 
681,  which  holds  right  of  intemperate  widower,  without  work  or  property,  to 
custody  of  child  lost  by  leaving  with  neighbor;  Anderson  v.  Young,  44  L.  R.  A. 
277,  which  sustains  court's  power  to  uphold,  in  interest  of  child,  custody  held 
under  void  agreement  with  parent;  Fletcher  v.  Hickman,  55  L.  R.  A.  896,  which 
holds  father  bound  by  agreement  intrusting  custody  of  infant  child  to  another; 
Re  Reiss,  25  L.  R.  A.  798,  which  denies  power  of  court  to  compel  father  to  send 
children  to  visit  their  grandmother;  Re  Young,  36  L.  R.  A.  224,  which  upholds 
grandparents'  right  to  custody  of  children  to  exclusion  of  father's  sister,  ap- 
pointed guardian  by  his  will;  Kelsey  v.  Green,  38  L.  R.  A.  471,  which  denies 
absolute  right  of  guardian  appointed  on  father's  application,  as  against  guardian 
appointed  in  other  state  where  child  actually  resides;  Stapleton  v.  Poynter,  53 
L.  R.  A.  784,  which  holds  custody  of  child  properly  taken  against  its  will  from 
wealthy  grandparent  and  given  to  parent  of  moral  habits;  Jones  v.  Bowman, 
67  L.R.A.  860,  which  holds  that  religious  belief  will  not  in  absence  of  statutory 
requirement  be  considered  in  determining  the  proper  custodian  of  an  infant. 

Cited  in  notes  (27  L.R.A.  61)  on  validity  of  contract  for  transfer  of  parental 
responsibility  or  authority;  (65  L.R.A.  689)  on  right  of  mother,  or  reputed 
father,  or  illegitimate  to  its  custody  or  control;  (88  Am.  St.  Rep.  869,  874) 
on  contracts  for  transfer  of  parental  custody  and  responsibility. 

5  L.  R.  A.  784,  NATIONAL  AUTOMATIC  DEVICE  CO  v.  LLOYD,  40  Fed.  89. 
Effect    of   immoral    use    upon    patent    or    copyrinht. 

Cited  in  Reliance  Novelty  Co.  v.  Dworzek,  80  Fed.  903,  holding  patent  laws 
do  not  authorize  issue  of  patent  for  invention  injurious  to  morals,  health,  or 
good  order  of  society;  Egbert  v.  Greenberg,  100  Fed.  450,  holding  copyright  of 
"official  form  chart"  of  races,  useful  to  persons  engaged  in  breeding  and  training 
horses,  entitled  to  protection  in  equity;  Fuller  v.  Berger,  65  L.  R.  A.  383,  foot- 
note p.  381,  56  C.  C.  A.  588,  120  Fed.  275,  enjoining  infringement  of  patent  on 
bogus-coin  detector;  Fuller  v.  Berger,  65  L.R.A.  383,  56  C.  C.  A.  588,  120  Fed. 


5  L.R.A.  784]  L.  R.  A.  CASES  AS  AUTHORITIES.  970 

275,  holding  patent  for  bad  coin  detector  which  is  adapted  to  use  in  connection 
with  any  coin  operated  machine,  not  void  for  lack  of  utility  because  of  its 
assignment  by  inventor  to  manufacturer  of  gambling  machine  and  its  sole  use 
in  connection  therewith. 

5  L.  R.  A.  785,  WASECA  COUNTY  v.  SHEEHAN,  42  Minn.  57,  43  N.  W.  690. 
Liability  of  sureties  npoii  official  bonds. 

Cited  in  Lake  County  v.  Neilon,  44  Or.  20,  74  Pac.  212,  holding  mere  failure 
of  the  tax  collector  to  pay  over  funds  on  days  specified,  not  alone  evidence  of 
defalcation,  to  render  sureties  liable. 

Cited   in   note    (91   Am.   St.   Rep.   530,    531)    on   acts   for   which   sureties   on 
official  bonds  are  liable. 
Official    bonds;    leave    to    sue. 

Cited  in  Carver  County  v.  Bongard,  82  Minn.  432,  85  N.  W.  214,  holding  leave 
of  court  not  prerequisite  to  suit  against  sureties  on  county  treasurer's  bond. 
Release    of    sureties    on    official    bonds    by    other    officers'    neglect    of    du- 
ties. 

Cited  in  Hogue  v.  State,  28  Ind.  App.  287,  62  X.  E.  656,  holding  validity  of 
official  bond  not  dependent  on  performance  of  statutory  duties  by  other  officers; 
St.  Louis  County  v.  Security  Bank,  75  Minn.  181,  77  N.  W.  815,  holding  failure 
of  county  commissioners  to  file  claim  with  receiver  of  insolvent  depositary  does 
not  release  sureties ;  Bush  v.  Johnson  County,  48  Neb.  15,  32  L.  R.  A.  229,  58  Am. 
St.  Rep.  673,  66  N.  W.  1023,  holding  settlement  of  county  board  with  treasurer  not 
adjudication  on  which  sureties  may  rely  as  defense  to  action  on  bond:  Andersen 
v.  Blair,  121  Ga.  125,  48  S.  E.  951,  2  A.  &  E.  Ann.  Cas.  165,  holding  that  the 
negligence  of  the  city  mayor  and  council  in  failing  to  discover  a  defalcation 
in  the  city  treasurer's  accounts  and  publishing  statements  that  they  are  satis- 
factory, is  no  defense  in  an  action  against  sureties  upon  his  bond;  State  ex  rel. 
Bell  v.  United  States  Fidelity  &  G.  Co.  236  Mo.  369,  139  S.  W.  163,  holding 
sureties  of  public  officer  not  discharged  by  the  laches  or  fraud  of  other  public 
officers;  Silver  Bow  County  v.  Davis,  40  Mont.  428,  107  Pac.  81,  holding  that 
negligence  of  county  treasurer  in  paying  bogus  certificates  is  no  defense  to 
surety  of  district  court  clerk. 

5  L.  R.  A.  786,  ERICKSON  v.  ST.  PAUL  &  D.  R.  CO.  41  Minn.  500,  43  N.  W.  332. 
Dnty  to  tv am  servants. 

Cited  in  Anderson  v.  Northern  Mill  Co.  42  Minn.  426,  44  S.  W.  315,  holding 
workmen,  engaged  in  removal  of  lumber  from  platform  rendered  dangerous  by 
logs  occasionally  shot  down  from  mill  adjoining,  entitled  to  recovery  for  injury 
resulting  from  failure  to  give  customary  signal,  on  which  he  wholly  relied; 
Evansville  &  T.  H.  R.  Co.  v.  Holcomb,  9  Ind.  App.  211,  36  N.  E.  39,  holding  rail- 
way liable  for  injury  to  repairer  through  failure  of  employee  to  carry  out  rule 
requiring  him  to  give  actual  notice  when  engine  enters  shop;  Amato  v.  Northern 
P.  R.  Co.  46  Fed.  564,  holding  railway  liable  to  workman  injured  while  absorbed 
in  crossing  dangerous  bridge  after  nightfall  in  winter,  on  foreman's  assurance 
of  no  approach  of  engine,  where  injured  by  engine  crossing  without  warning; 
Schulz  v.  Chicago,  M.  &  St.  P.  R.  Co.  57  Minn.  274,  59  N.  W.  192.  holding  duty 
to  warn  for  jury  where  deceased  visible  600  yards  distant,  and  not  likely  to  hear 
approach  of  train  by  reason  of  noise  of  opposite  running  train :  Westa^  ay  v. 
Chicago,  St.  P.  M.  &  0.  R.  Co.  56  Minn.  31,  57  N.  W.  222.  holding  railway  not 
permitted  to  stop,  giving  customary  signals  at  crossing  without  notice,  and  liable 
for  injury  resulting  from  negligent  failure  to  ring  bell;  Smith  v.  Atlanta  &  C. 
Air  Line,  R.  Co.  132  N.  C.  824,  44  S.  E.  663,  holding  company  liable  to  painter 


971  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  786 

of  switch  targets  for  injuries  from  being  hit  by  engine  approaching  without  sig- 
nals; Northern  P.  R.  Co.  v.  Craft,  16  C.  C.  A.  175,  29  U.  S.  App.  687,  69  Fed. 
128,  holding  railroad  company  liable  for  death  of  car  accountant  killed  by  engine 
approaching  without  signals;  McLaine  v.  Head  &  D.  Co.  71  N.  H.  307,  58  L.  R. 
A.  469,  93  Am.  St.  Rep.  522,  52  Atl.  545  (dissenting  opinion),  majority  holding 
company  not  liable  for  failure  of  foreman  to  warn  workmen  in  trench  that  load 
of  earth  was  about  to  be  dumped;  Smith  v.  Atlanta  &  C.  Air  Line  R.  Co.  131 
N.  C.  616,  42  S.  E.  976  (dissenting  opinion),  majority  holding  railway  not 
liable  to  employee  painting  switch  target  when  struck  by  switch  engine  without 
warning;  Consolidated  Stone  Co.  v.  Ellis,  46  Ind.  App.  88,  91  N.  E.  1095, 
holding  master  liable  because  of  foreman's  failure  to  warn  servant  of  danger 
after  promise  to  do  so  and  reliance  upon  it;  Anderson  v.  Pittsburgh  Coal  Co. 
108  Minn.  468,  26  L.R.A.(N.S.)  640,  122  N.  W.  794,  holding  that  failure  of 
hatch  tender  to  give  coal  heaver  customary  warning  before  bucket  was  lowered 
was  negligence  of  vice  principal;  Wolfe  v.  Seaboard  Air  Line  R.  Co.  154  X.  C. 
576,  70  S.  E.  993,  holding  that  employee  of  railroad  has  right  to  rely  on 
employer's  duty  to  give  proper  signal  of  approach  of  trains. 

Distinguished  in  Rutherford  v.  Chicago,  M.  &  St.  P.  R.  Co.  57  Minn.  241,  59 
N.  W.  302,  where  workman  was  killed  while  working  at  distance  from  gang,  at 
point  where  he  knew  signals  were  not  given;  Lundquist  v.  Duluth  Street  R.  Co. 
65  Minn.  389,  67  N.  W.  1006,  holding  that  track  repairer,  injured  by  car  ap- 
proaching without  giving  proper  warning  signals,  cannot  recover,  since  fellow 
servant  of  negligent  motorman;  Hickey  v.  St.  Paul  City  R.  Co.  60  Minn.  122, 
61  N.  W.  893,  holding  pedestrian  attempting  to  hastily  cross  tracks  ahead  of  car 
which  he  knew  to  be  rapidly  approaching  guilty  of  contributory  negligence; 
Reilly  v.  Chicago  &  N.  W.  R.  Co.  122  Iowa,  528,  98  N.  W.  464,  denying  railroad 
company's  liability  to  servant  of  independent  contractor  for  injuries  from  being 
hit  by  stone  struck  by  engine. 
Dnty  to  Mop  train. 

Cited  in  Johnson  v.  Truesdale.  46  Minn.  347,  48  N.  W.  1136,  holding  engineer 
under  no  duty  to  stop  train  after  giving  proper  warning  signals,  until  it  ap- 
peared that  plaintiff  would  not  get  off  track  in  time;  Starbard  v.  Detroit,  G. 
H.  &  M.  R.  Co.  122  Mich.  28,  80  N.  W.  878,  holding  railway  not  liable  for  failure 
to  stop,  where  deceased  made  motion  as  if  to  step  off  track  after  alarm  whistle 
given,  but  just  as  train  reached  him  stepped  back  again. 

*  Cited   in   note    (20   Am.   St.   Rep.   453)    on   duty   of   railroad  company   as   to 
persons  on  track. 
Contributory    negligence. 

Cited  in  Coffeyville  Vitrified  Brick  &  Tile  Co.  v.  Shanks,  69  Kan.  311,  76 
Pac.  856,  holding  that  employee  in  pit  mine  has  right  to  rely  on  the  customary 
warning  being  given  by  the  pit  boss;  Fitzgerald  v.  International  Flax  Twine 
Co.  104  Minn.  147,  116  N.  W.  475,  holding  that  minor  servant  engrossed  in 
•work  has  a  right  to  rely  on  the  giving  of  customary  signals  and  is  not  bound 
to  guard  against  master's  negligence  in  failing  to  give  them. 

Cited  in  notes   (8  L.  R.  A.  783)    as  to  when  contributory  negligence  is  not  a 
defense;    (12  L.  R.  A.  280)    on  contributory  negligence  defeating  recovery;    (11 
L.  R.  A.  130)   on  recovery  for  injury  defeated  by  passenger's  contributory  negli- 
gence. 
On  railroad  track*. 

Cited  in  Floan  v.  Chicago,  M.  &  St.  P.  R.  Co.  101  Minn.  115,  111  N.  W.  957, 
holding  that  employees  have  a  right  to  rely  on  railroad  company's  custom  to 
ring  the  bell  as  warning  of  the  approach  of  switch  engines;  Sherrill  v.  Southern 


5  L.R.A.  786]  L.  R.  A.  CASES  AS  AUTHORITIES.  972 

R.  Co.  140  N.  C.  255,  52  S.  E.  940,  holding  that  where  duties  of  employee 
require  him  to  work  on  and  near  track,  and  he  is  injured  by  train  which 
fails  to  give  warning  he  is  not  guilty  of  contributory  negligence  as  matter  of 
law  in  failing  to  look  just  at  the  time  so  as  to  avoid  it;  Louisville  &  X.  R. 
Co.  v.  Lewis,  141  Ala.  469,  37  So.  587,  on  right  of  employees  on  train  to  assume 
that  one  on  the  track  would  get  off  so  as  to  avoid  injury  from  the  train. 

Cited  in  footnote  to  Weber  v.  Kansas  City  Cable  R.  Co.  7  L.  R.  A.  819,  which 
holds  that  party,  alighting  on  wrong  side  of  car     while  at  full   speed,   cannot 
recover  for  injuries. 
"When   contributory   negligence   is  not  conclusive  bar  to  recovery. 

Cited   in  Neary  v.  Northern   P.  R.   Co.   37   Mont.   476,   19   L.R.A.  (N.S.)    452, 
97   Pac.   944,   holding  that  one  guilty  of  contributory  negligence   in   remaining 
upon  track  is  not  as  a  matter  of  law  denied  right  of  recovery  for  injury  sus- 
tained if  railroad  was  guilty  of  wanton  and  reckless  negligence  in  causing  it. 
Proximate     cause. 

Cited  in  footnotes  to  Herr  v.  Lebanon,  16  L.  R.  A.  106,  which  holds  want  of 
barrier  not  proximate  cause  of  omnibus  going  over  embankment  through  struggles 
of  horse  attempting  to  rise;  McClain  v.  Garden  Grove,  12  L.  R.  A.  482,  which 
holds  narrowness  of  bridge  and  insufficiency  of  railings  not  proximate  cause  of 
injury  from  horse  falling  from  disease  or  choking;  Vallo  v.  United  States  Exp. 
Co.  14  L.  P.  A.  743,  which  holds  throwing  of  trunk  from  delivery  wagon  in  high- 
way proximate  cause  of  traveler  falling  over  another  trunk;  McKenna  v.  Baessler, 
17  L.  R.  A.  310,  which  holds  original  fire  proximate  cause  of  destruction  of 
property  by  back  fire;  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Elliott,  20  L.  R.'A.  582, 
as  to  proximate  cause  of  injury  to  shipper  while  stepping  from  stock  car  to 
caboose;  Harrison  v.  Detroit,  L.  &  X.  R.  Co.  7  L.  R,  A.  623,  which  holds  proxi- 
mate cause  of  injury  to  servant,  question  for  jury. 

Cited  in  notes  (8  L.  R.  A.  83)  on  loss  or  injury  attributed  to  proximate  cause; 
(12  L.  R.  A.  284)  on  defendant's  negligence  as  proximate  cause  of  injury;  (7  L. 
R.  A.  132)  on  proximate,  and  not  remote,  cause  of  injury  to  be  regarded; 
(13  L.  R.  A.  733)  on  proximate  and  remote  cause  of  damage;  (8  L.  R.  A.  84) 
on  effect  produced  by  intervening  cause. 
Liability  for  injury  to  servants  of  contractor. 

Cited  in  Stevens  v.  United  Gas  &  Electric  Co.  73  N.  H.  17],  70  L.R.A.  ]25, 
60  Atl.  848,  holding  proprietor  of  premises  liable  to  servant  of  independent 
contractor  for  injury  from  defectively  insulated  electric  wires  negligently  main- 
tained there  by  him. 

Distinguished  in  Engler  v.  Seattle,  40  Wash.  76,  82  Pac.  136,  on  duty  to 
furnish  safe  place  to  work  resting  upon  the  contractor  and  does  not  extend  to 
the  party  for  whom  the  contractor  is  doing  the  work. 

5  L.  R.  A.  790,  WILLIAMS  v.  SPENCER,  150  Mass.  346,  15  Am.  St.  Rep.  206, 

23  N.  E.  105. 
Opinion    as    to   mental    capacity. 

Cited  in  Smith  v.  Smith,  157  Mass.  391,  32  N.  E.  348,  holding  that  witness, 
acquainted  with  testator,  cannot,  on  issue  as  to  mental  soundness,  testify  con- 
cerning opinion  of  testator's  capacity  to  contract  or  transact  important  business; 
Melanefy  v.  Morrison,  152  Mass.  476.  26  N.  E.  36,  holding  opinion  of  subscribing 
witness  to  will,  as  to  mental  condition  of  maker  at  time  of  signing,  incompetent; 
Gwin  v.  Gwin,  5  Idaho,  282,  48  Pac.  1060,  holding  testator's  declarations  made 
after  execution  of  will  inadmissible  to  show  incapacity. 


973  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  792 

Cited  in  notes  (38  L.  R.  A.  724,  745)  on  nonexpert  opinions  as  to  sanity  or 
insanity;  (39  L.  R.  A.  718)  on  opinions  of  subscribing  witnesses  as  to  sanity  or 
insanity;  (30  Am.  St.  Rep.  39)  on  admissibility  of  nonexpert  opinions;  (77 
Am.  St.  Rep.  478)  on  competency  of  subscribing  witnesses  to  wills  and  effect 
of  tbeir  evidence  in  support  of  or  opposition  to  will. 

Distinguished  in  Clark  v.  Clark,  168  Mass.  525,  47  N.  E.  510,  holding  that 
witness  acquainted  with  grantor  may  testify  as  to  failure  of  mental  capacity  be- 
tween time  of  execution  of  deed  and  bill  to  set  aside  same  on  ground  of  fraud. 

Disapproved  in  Brown  v.  Mitchell,  88  Tex.  362,  36  L.  R.  A.  72,  31  S.  W.  621, 
holding  that  witnesses  acquainted  with  facts  may  express  opinions  founded  on 
knowledge  of  testator's  condition. 
ReVmttal     evidence. 

Cited  in  Bonnemort  v.  Gill,  105  Mass.  496,  43  N.  E.  299,  holding  that  adverse 
witness,  testifying  to  facts  tending  to  show  mental  incapacity  of  testator,  may 
be  questioned  on  cross-examination  as  to  acts  of  witness  tending  to  show  belief 
in  testator's  capacity;  Clarke  v.  Warwick  Cycle  Mfg.  Co.  174  Mass.  436,  54  N.  E. 
887,  holding  evidence  by  plaintiff  to  contradict  an  inference  deducible  from  de- 
fendant's testimony,  admissible. 

5  L.  R.  A.  792,  MELLOR  v.  MERCHANTS  MFG.  CO.  150  Mass.  362,  23  N.  E.  100. 
Assumption     of     risk. 

Cited  in  Watson  v.  Kansas  &  T.  Coal  Co.  52  Mo.  App.  372,  holding  experienced 
miner,  who  continued  to  work  under  defective  roof  without  complaint  and  without 
propping  it  himself,  assumed  risk;  Boyle  v.  New  York  &  N.  E.  R.  Co.  151  Mass. 
103,  23  N.  E.  827,  holding  conductor  of  switching  crew,  in  charge  of  all  move- 
ments of  cars  in  yard,  assumed  risk  of  injury  while  coupling  cars  from  timber 
projecting  from  car;  Anderson  v.  Clark,  155  Mass.  370,  29  N.  E.  589,  holding 
seaman  assumed  risk  from  dangerous  condition  of  windlass  and  appliances, 
obvious  to  person  of  plaintiff's  experience;  Miner  v.  Connecticut  River  R.  Co. 
Io3  Mass.  402,  26  N.  E.  994,  holding  that  consignee  cannot  recover  for  killing 
of  horse  used  in  taking  freight  from  defendant's  yard,  if  his  employee  knew  the 
danger  and  assumed  risk;  McGill  v.  Maine  &  N.  H.  Granite  Co.  70  N.  H.  128, 
85  Am.  St.  Rep.  618,  46  Atl.  684,  holding  employee,  voluntarily  attempting  to 
stop  runaway  cars,  assumed  risk  of  so  doing;  Quigley  v.  Bambrick,  58  Mo.  App. 
196.  holding  injury  to  inexperienced  tunnel  employee,  through  defendant's  failure 
to  brace  walls  saturated  by  bursting  of  cistern,  not  resulting  from  obvious  danger 
for  which  risk  assumed;  Fitzgerald  v.  Connecticut  River  Paper  Co.  155  Mass. 
158,  31  Am.  St.  Rep.  537,  29  N.  E.  464,  holding  that  employee  did  not  assume, 
as  matter  of  law,  risk  known  and  appreciated  of  passing  down  steps  made 
slippery  by  spray  from  exhaust  steam;  Mahoney  v.  Dore,  155  Mass.  518,  30  N.  E. 
3G6,  holding  it  for  jury  whether  domestic  servant  appreciated,  and  voluntarily 
assumed,  risk  of  using  steps  in  dangerous  condition,  arising  since  employment; 
Adolff  v.  Columbia  Pretzel  &  Baking  Co.  100  Mo.  App.  208,  73  S.  W.  321,  holding 
it  for  jury  to  determine  whether  one  compelled  to  operate  dangerous  dough- 
kneading  machine  assumed  risk;  Lindquist  v.  King's  Crown  Plaster  €«.  139 
Iowa,  313,  117  N.  W.  46,  holding  infant  servant  who  leaves  work  at  which  he 
is  employed  and  of  own  volition  and  against  commands  of  foreman  goes  to 
assist  fellow  servant  in  making  repair,  witli  knowledge  of  dangers,  a  volunteer, 
and  guilty  of  such  negligence  as  to  bar  recovery;  Jewell  v.  Kansas  City  Bolt 

6  Xut  Co.  231  Mo.  205,  140  Am.  St.  Rep.  515,  132  S.  W.  703,  holding  servant 
not  guilty  of  contributory  negligence  because  he  worked  without  usual  protective 
appliance  after  having  been  threatened  with  discharge  if  he  did  not  so  work; 
International  &  G.   N.  R.  Co.  v.  Hall,  46  Tex.  Civ.  App.  496,   102  S.   W.   740> 


5  L.R.A.  792]  L.  R.  A.  CASES  AS  AUTHORITIES.  374 

holding  servant  assumes  risk  where  he  goes  outside  duties  of  employment  and 
attempts  to  repair  defective  instrumentality;  Patterson  v.  North' Carolina  Lum- 
ber Co.  145  N.  C.  45,  58  S.  E.  437,  holding  master  not  liable  where  servant 
leaves  his  work  and  without  order  or  request  of  master  but  as  favor  to  another 
servant  undertakes  to  operate  machine  of  latter  and  is  injured;  Byrne  v. 
Leanard,  191  Mass.  275,  77  N.  E.  316,  holding  question  of  injury  within  scope 
of  duty  for  jury  where  servant  who  was  to  operate  machine  during  absence 
of  regular  operator,  is  injured  while  continuing  after  his  return,  the  master 
giving  no  instructions  as  to  time  to  quit;  National  Fire  Proofing  Co.  v.  An- 
drews, 85  C.  C.  A.  526,  158  Fed.  298,  holding  servant  who  at  command  of 
superior,  having  control  over  him,  leaves  regular  work  and  assists  in  making 
repair,  not  a  volunteer  so  as  to  bar  recovery  for  injury;  Elliff  v.  Oregon  R. 

4  Nav.  Co.  53  Or.  77,  99  Pac.  76,  holding  employee  not  a  volunteer  assuming 
risk  where  against  his  protest  he  is  ordered  by  superior  having  some  authority 
to  leave  his  regular  work  to  perform  that  with  more  hazard;  Jackson  v.  Georgia 
Southern  &  F.  R.  Co.  132  Ga.  153,  63  S.  E.  841   (dissenting  opinion),  on  assump- 
tion of  risk  by  performance  of  gratuitous  and  unnecessary  act. 

Cited  in  notes  (16  L.  R.  A.  861)  as  to  who  is  volunteer;  (22  L.  R.  A.  665)  as 
to  assumption  by  volunteer  of  risks  of  service;  (47  L.  R.  A.  185,  189,  192)  on 
volenti  non  fit  injuria  as  a  defense  to  actions  by  injured  servants;  (21  Am. 
St.  Rep.  110;  19  Eng.  Rul.  Cas.  167)  on  assumption  of  risks  by  employee; 
(85  Am.  St.  Rep.  626)  on  master's  liability  to  servant  volunteering  on  duty 
with  which  he  is  not  charged. 

Limited  in  Terre  Haute  &  I.  R.  Co.  v.  Fowler,  154  Ind.  686,  48  L.  R.  A.  532, 
56  N.  E.  228,  holding  freight  conductor  going  forward  on  engine,  by  order  of  road 
superintendent,  to  inspect  road  after  storm,  within  scope  of  employment  as  to 
company's  liability  for  injuries. 
Effect    of    employers'    liability    act. 

Cited  in  Malcolm  v.  Fuller,  152  Mass.  167,  25  N.  E.  83,  holding  employer 
liable  to  workman  for  explosion  in  drilling  out  wadding  over  charge  supposed  by 
quarryman  to  have  been  discharged,  under  Massachusetts  employers'  liability  act 
1887;  O'Maley  v.  South  Boston  Gaslight  Co.  158  Mass.  136,  47  L.  R.  A.  164,  32 
N.  E.  1119,  holding  employee  assumed  obvious  risks,  although  statute  makes 
employer  liable  for  defects  in  ways,  works,  or  machinery  arising  from,  or  not  dis- 
covered or  remedied  owing  to,  employer's  negligence;  Birmingham  R.  &  Electric 
Co.  v.  Allen,  99  Ala.  374,  20  L.  R.  A.  461,  13  So.  8,  holding  that  employee  assumes 
risk  of  defective  appliances  by  continuing  in  employment  with  knowledge  thereof, 
although  known  to  master,  notwithstanding  the  statute;  Jarvis  v.  Hitch,  161 
Ind.  220,  67  N.  E.  1057,  holding  steam  pile-driver,  consisting  of  engine  at  one 
end  and  driver  at  other  end  of  flat  car,  not  "locomotive  engine." 

Cited  in  footnote  to  Johnson  v.  St.  Paul  &  D.  R.  Co.  8  L.  R.  A.  419,  which  holds 
railroad  not  liable  to  member  of  crew  repairing  bridge  for  injury  from  fellow 
servant's  negligence. 

5  L.  R.  A.  794,  WASSON  v.  PETTIT,  117  N.  Y.  118,  22  N.  E.  566. 
Liability    of    owner,    lessor,    etc.,    of    premises,      for      injuries      received 

thereon. 

Cited  in  Hilsenbeck  v.  Guhring.  36  N.  Y.  S.  R.  454,  12  N.  Y.  Supp.  792,  holding 
owner  of  building  liable  to  visitor  of  tenant  falling  into  cellar  by  opening  wrong 
door  in  dark  hall  used  by  owner  and  tenant  jointly,  where  gas  not  lighted; 
Kelly  v.  Smith,  29  App.  Div.  348.  51  N.  Y.  Supp.  413,  holding  owner  of  tenement 
house  not  liable  for  death  of  boy,  resulting  from  unauthorized  use  of  fire  escape 
ladder  wrongfully  removed  from  its  place;  Maltbie  v.  Bolting,  6  Misc.  345,  26 


975  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  797 

N.  Y.  Supp.  903,  holding  proof  that  cement  barrel  protruded  from  coal  hole, 
over  which  plaintiff  stumbled,  causing  injury,  insufficient  to  sustain  complaint  of 
negligence  where  no  actual  negligence  shown;  Fisher  v.  Rankin,  25  Abb.  N.  C.  191, 
27  N.  Y.  S.  R.  583,  7  N.  Y.  Supp.  837,  holding  it  error  to  take  question  of  negli- 
gence from  jury,  in  action  for  injury  caused  by  negligent  condition  of  walk,  and 
rest  case  solely  upon  legality  of  disturbance  of  previous  condition  thereof;  Boss 
v.  Jarmulowsky,  81  App.  Div.  580,  81  N.  Y.  Supp.  400,  denying  landlord's  liability 
for  injuries  to  child  who  fell  over  material  placed  in  hall  by  independent  con- 
tractor; Lincoln  v.  First  Nat.  Bank  (Neb.)  60  L.  R.  A.  927,  93  X.  W.  G98,  holding 
purchaser  at  sheriff's  sale  not  liable  for  damages  for  personal  injuries  paid  while 
former  in  possession;  Lincoln  v.  First  Nat.  Bank,  67  Neb.  408,  60  L.R.A.  923, 
108  Am.  St  Rep.  690,  93  N.  W.  698,  holding  purchaser  at  sheriff's  sale  who 
has  no  possession,  control  or  use  of  premises,  except  constructive  possession 
by  delivering  and  recording  of  deed,  not  liable  on  judgment  against  city  for 
injury  from  falling  into  negligently  constructed  coal  hole,  while  former  owner 
was  still  in  possession,  and  citing  annotation  also  on  this  point;  Uggla  v. 
Brokaw,  117  App.  Div.  588,  102  N.  Y.  Supp.  857,  holding  owner  not  liable  for 
injuries  to  third  person  through  tenant's  negligent  omission  to  make  repairs, 
if  building  was  not  nuisance  or  in  such  condition  as  to  endanger  public  at  tim« 
of  leasing. 

Cited  in  footnotes  to  Boyce  v.  Union  P.  R.  Co.  18  L.  R.  A.  509,  which  requires 
proprietor  of  bathing  house  to  keep  bottom  free  from  substances  which  would 
injure  bathers'  feet;  Lufkin  v.  Zane,  17  L.  R.  A.  251,  which  holds  landlord  not 
liable  for  tenant's  unauthorized  use  of  premises,  constituting  nuisance ;  Sterger  v. 
Van  Siclen,  16  L.  R.  A.  640,  which  holds  property  owner  not  required  to  have 
stairways  safe  as  to  person  on  premises  in  search  of  child;  Philadelphia  &  R.  R. 
Co.  v.  Smith,  27  L.  R.  A.  131,  which  holds  lessee  not  liable  for  continuing  nui- 
sance caused  by  prior  tenant,  to  whom  no  notice  to  move  was  given. 

Cited  in  notes  (7  L.  R.  A.  621)  on  dangerous  premises;  (11  L.  R.  A.  361)  on 
wilful  negligence  of  owner  of  premises  as  to  keeping  in  safe  condition;  (23  L. 
R.  A.  157)  on  liability  of  landlord  as  to  condition  of  part  of  premises  not  con- 
trolled by  tenant;  (92  Am.  St.  Rep.  545)  on  liability  to  third  persons  of  lessors 
of  real  or  personal  property. 

Distinguished  in  Burt  v.  Wrigley,  43  HI.  App.  369,  holding  owner  liable  for 
injury  resulting  from  dangerous  condition  of  sidewalk  in  process  of  repair,  where 
verdict  exempts  mason  and  places  negligence  on  owner;  Brehmer  v.  Lyman,  71  Vt. 
103,  42  Atl.  613,  holding  judgment  for  defendant  proper,  where  plaintiff  was  on 
premises  at  invitation  of  trespasser,  to  whom  no  duty  to  provide  safe  passageway 
existed;  Curran  v.  Flammer,  49  App.  Div.  290,  62  N.  Y.  Supp.  1061,  holding  owner 
not  liable  for  injury  to  third  party  due  to  defective  bar  to  basement  grating, 
where  no  evidence  that  owner  was  aware  of  defect  at  time  of  lease  or  had  had 
subsequent  notice  given. 
Actions  for  negligent  injury. 

Cited  in  Jorgensen  v.  Reformed  Low  Dutch  Church,  7  Misc.  3,  27  N:  Y.  Supp. 
318,  holding  action  by  husband  for  loss  of  services  and  society  of  wife,  froift  injury 
to  her  by  defendant's  wrongful  act,  not  one  for  negligent  injury  within  provision 

as  to  time  for  bringing  action. 

' 

5  L,  R.  A.  797,  PAIXE  v.  DELHI,  116  N.  Y.  224,  22  N.  E.  405. 
Municipal     liability     for    injuri«-s. 

Cited  in  Champion  v.  Cramlon.  84  Wis.  412.  19  L.  R.  A.  858,  54  N.  W.  7". 
holding  abutting  owner  not  entitled  to  recover  for  injuries  due  to  chan^-  iu 
natural  flow  of  water  from  alteration  of  street  grade  according  to  defective  plan; 


5  L.R.A.  797]  L.  R.  A.  CASES  AS  AUTHORITIES.  976 

Platt  v.  New  York,  8  Misc.  412,  28  N.  Y.  Supp.  672,  holding  fence  erected  by  mu- 
nicipality beside  bridle  path  gives  no  cause  of  action  to  one  injured  thereby  in 
absence  of  negligence  in  construction;  Van  Wie  v.  Mt.  Vernon,  26  App.  Div.  332, 
49  N.  Y.  Supp.  779,  holding  city  not  liable  for  injury  resulting  from  collision 
with  lamp  post  near  curb,  where  post  was  placed  at  usual  distance,  without  neg- 
ligence ;  Rhinelander  v.  Lockport,  38  N.  Y.  S.  R.  569,  14  N.  Y.'  Supp.  850,  holding 
city  not  liable  for  injury  due  to  faulty  plan,  adopted  for  construction  of  cross- 
walk; Sadlier  v.  New  York,  104  App.  Div.  89,  93  N.  Y.  Supp.  579.  holding  city 
of  New  York  not  liable  for  injury  to  house  from  falling  of  rain  water  from 
New  York  and  Brooklyn  bridge,  where  it  is  not  feasible  to  so  construct  bridge 
as  to  prevent  water  from  falling  and  being  blown  onto  house  below;  Pitman 
v.  New  York,  141  App.  Div.  672,  125  N.  Y.  Supp.  941,  holding  that  duty  of 
municipality  to  make  public  improvements  is  discretionary,  and  action  does 
not  lie  for  failure  to  act. 

Cited  in  notes  (61  L.R.A.  684,  700)  on  duty  and  liability  of  municipality  with 
respect  to  drainage;  (67  L.R.A.  260)  on  municipal  liability  for  defective  plan 
of  street  construction. 

5  L.  R.  A.  799,  KRATZENSTEIN  v.  WESTERN  ASSUR,  CO.  116  N.  Y.  54,  22 

N.  E.  221. 
Construction  of  contracts. 

Cited  in  People  v.  Gluck,  188  N.  Y.  172,  80  N.  E.  1022,  holding  ambiguity  in 
consignment  receipt  and  deposit  agreement  for  sale  of  article,  prepared  by 
seller,  resolved  against  seller;  Industrial  &  General  Trust  v.  Tod,  180  N.  Y. 
225,  73  N.  E.  7,  holding  corporation  reorganization  agreement  prepared  by 
committee  should  be  construed  most  favorably  to  bondholders  who  had  no  part 
in  preparing  and  must  accept  it  as  it  was  or  not  accept  it  at  all;  Daniel  v. 
Manhattan  L.  Ins.  Co.  116  App.  Div.  784,  102  N.  Y.  Supp.  27  (dissenting  opin- 
ion), on  necessity  of  giving  effect  to  every  term  of  contract;  Guardian  Trust 
Co.  v.  Peabody,  122  App.  Div.  653,  107  N.  Y.  Supp.  515  (dissenting  opinion), 
on  construction  of  contract  of  guaranty  containing  conflict  between  written  and 
printed  words;  Gunther  v.  Marteau,  73  Misc.  44,  132  N.  Y.  Supp.  82,  to  the 
point  that  in  case  of  ambiguity  an  instrument  will  be  construed  most  strongly 
against  person  executing  it. 
—  Contract  of  insurance. 

Cited  in  Davis  v.  American  Cent.  Ins.  Co.  7  App.  Div.  493,  40  N.  Y.  Supp.  248, 
and  McNally  v.  Phoenix  Ins.  Co.  137  N.  Y.  398,  33  N.  E.  475,  holding  that  courts 
will  not  give  policy  narrow  construction,  after  a  loss;  Wehle  v.  United  States 
Mut.  Acci.  Asso.  11  Misc.  39,  31  N.  Y.  Supp.  865,  construing  provisions  to  examine 
body  of  insured  after  death  strictly  against  insurer;  Rickerson  v.  Hartford  F. 
Ins.  Co.  149  N.  Y.  313,  43  N.  E.  856,  holding  ambiguous  description  of  premises 
in  policy  construed  in  favor  of  insured;  Janneck  v.  Metropolitan  L.  Ins.  Co.  162 
N.  Y.  577,  57  N.  E.  182,  construing  provision  allowing  insurer  to  terminate 
contract  for  intemperance,  as  not  giving  arbitrary  right;  London  Assur.  Corp.  v. 
Thompson,  170  N.  Y.  100,  62  N.  E.  1066,  construing  ambiguous  policy  of  reinsur- 
ance against  original  insurer;  Devitt  v.  Providence  Washington  Ins.  Co.  61  App. 
Div.  393,  70  N.  Y.  Supp.  654,  construing  clause  exempting  insurer  from  damage 
to  boat  by  ice  not  to  include  ice  forming  on  cargo  after  sinking;  Halpin  v.  In- 
surance Co.  of  N.  A.  120  N.  Y.  78,  8  L.  R,  A.  81,  23  N.  E.  989,  construing  ma- 
chinery and  apparatus  not  to  constitute  a  "mill;"  Steel  v.  Phenix  Ins.  Co.  2 
C^C.  A.  471,  7  U.  S.  App.  325,  51  Fed.  723,  and  Sample  v.  London  &  L.  F.  Ins.  Co. 
46  S.  C.  495,  47  L.  R.  A.  704,  57  Am.  St.  Rep.  701,  24  S.  E.  334,  construing  time 
limit  for  suit  within  specified  time  "next  after  fire"  to  mean  after  accrual  of  right 


977  L.  K.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  802 

of  action;  Burkheiser  v.  Mutual  Acci.  Asso.  26  L.  R.  A.  114,  10  C.  C.  A.  96,  18 
U.  S.  App.  704,  61  Fed.  818,  holding  benefit  association  insuring  "members" 
liable  to  insured,  ceasing  to  be  member  after  liability  became  fixed;  Bracker  v. 
Equitable  Life  Assur.  Soc.  42  Misc.  292,  86  N.  Y.  Supp.  557;  Theunen  v.  Iowa 
Mut.  Ben.  Asso.  101  Iowa,  565,  37  L.  R,  A.  589,  70  N.  W.  712,  holding  court 
aims,  with  few  exceptions,  to  arrive  at  intent  of  parties  to  contract  of  in- 
surance; Van  Slooten  v.  Fidelity  &  C.  Co.  78  App.  Div.  529,  79  N.  Y.  Supp.  608, 
holding  words  in  policy  "amount  otherwise  payable"  not  ambiguous  in  meaning 
or  application;  Lite  v.  Firemen's  Ins.  Co.  119  App.  Div.  412,  104  X.  Y.  Supp. 
434,  holding  effect  should  be  given  every  word  and  expression,  and  in  case  of 
ambiguity  construction  most  favorable  to  insured  should  be  adopted ;  Traders' 
Ins.  Co.  v.  Dobbins,  114  Tenn.  233,  86  S.  W.  383,  holding  doubtful  and  ambiguous 
provisions  construed  most  strongly  against  insurer;  Graves  v.  Knights  of  Mac- 
cabees, 128  App.  Div.  663,  112  N.  Y.  Supp.  948,  holding  where  phrase  in  policy 
is  susceptible  to  two  interpretations  it  should  receive  that  which  is  most  favor- 
able to  insured,  the  policy  having  been  prepared  by  insurer;  Heyn  v.  New  York 
L.  Ins.  Co.  192  N.  Y.  6,  84  N.  E.  725,  holding  where  part  of  contract  is  printed 
form  furnished  by  company  and  part  typewritten,  latter  should  control  inter- 
pretation where  provisions  of  printed  part  are  doubtful,  uncertain  or  repugnant 
to  typewritten  part. 

Cited  in  footnote  to  Delaware  Ins.  Co.  v.  S.  S.  White  Dental  Mfg.  Co.  65 
L.R.A.  388,  which  holds  marine  policy  providing  that  no  risk  shall  attach  until 
amount  and  description  is  approved  and  indorsed  thereon,  not  changed  into 
open  and  unrestricted  policy  covering  all  property  assured  elects  to  report,  by 
adopting  agreement  fixing  uniform  premium,  supplying  blanks  on  which  to 
report  risks,  and  a  long  continued  custom  of  reporting  risks  by  assured  when 
convenient,  and  their  uniform  acceptance  by  insurer. 

Cited  in  notes  (8  L.  R.  A.  834)  on  entire  and  severable  contracts  of  fire  in- 
surance; (11  L.  R.  A.  341)  on  construction  of  insurance  contract;  (26  L.  R.  A. 
239)  on  location  of  movable  property  as  affecting  insurance  thereon;  (30  L.  R. 
A.  636)  on  effect  of  riders  or  slips  attached  to  insurance  policies;  (14  Eng. 
Rul.  Cas.  14,  19;  20  Am.  St.  Rep.  826)  on  construction  of  insurance  policy. 

Distinguished  in  Merrill  v.  Travelers'  Ins.  Co.  91  Wis.  335,  64  N.  W.  1039,  con- 
struing "immediately"  to  mean  "presently,  without  lapse  of  time  or  material 
delay." 

5  L.  R.  A.  802,  HALL  v.  STEVENS,  116  N.  Y.  201,  22  N.  E.  354. 
Presumption   as   to   payment   arising    from    taking:    note,    etc. 

Cited  in  Dibble  v.  Richardson,  171  N.  Y.  138,  63  N.  E.  829;  Finlay  v.  Heywardr 
34  Misc.  819,  69  N.  Y.  Supp.  648;  Estey  v.  Birnbaum,  9  S.  D.  178,  68  N.  W.  290; 
Schmidt  v.  Livingston,  16  Misc.  555,  38  N.  Y.  Supp.  746,  —  holding  presumption 
to  be  that  note  for  precedent  debt  is  not  taken  as  payment;  Ainis  v.  Ayres,  62 
Hun,  381,  16  N.  Y.  Supp.  905,  holding  that  acceptance  of  draft  by  agent  does  not 
absolve  principal  from  liability;  Friberg  v.  Block,  65  App.  Div.  542,  73  N.  Y. 
Supp.  104,  holding  acceptance  of  note  of  third  person  on  debtor's  order  for  prece- 
dent debt  not  release  of  debtor;  Challoner  v.  Boyington,  83  Wis.  409,  53  N.  W. 
694,  holding  third  person's  note  for  purchase  price  of  goods  sold  accepted  before 
time  fixed  for  payment,  presumptively  taken  in  payment;  Edicott  v. .The  Jamea 
T.  Easton,  49  Fed.  658,  holding  third  person's  note  for  antecedent  debt  no  dis- 
charge of  maritime  lien;  Atlas  S.  S.  Co.  v.  Colombian  Land  Co.  42  C.  C.  A.  399, 
102  Fed.  360,  holding  taking  of  consignee's  note  for  freight  in  lien  of  costs  not 
payment;  Vacheron  v.  Hildebrant.  39  Misc.  62,  78  N.  Y.  Supp.  771,  holding  pre- 
sumption that  vendor  received  third  person's  note  in  satisfaction  of  debt ;  Mc- 
L.R.A.  Au.  Vol.  L— 62. 


5  L.R.A.  802]  L.  R.  A.  CASES  AS  AUTHORITIES.  978 

Mahon  v.  United  States  L.  Ins.  Co.  63  C.  C.  A.  134,  128  Fed.  392,  holding  accept- 
ance of  draft  subsequently  dishonored  constitutes  payment;  De  Witt  v.  Mont  jo, 
46  App.  Div.  541,  61  X.  Y.  Supp.  1046  (dissenting  opinion),  majority  holding 
that  inference  that  vendor  of  goods  accepted  purchaser  from  original  vendee  as 
debtor  arises  from  drawing  on  such  purchaser  for  balance  of  debt  and  treating 
him  as  primarily  liable;  Gimble  v.  King,  43  Tex.  Civ.  App.  190,  95  S.  W.  7, 
holding  if  note  or  draft  be  taken  contemporaneously  with  creation  of  debt,  pre- 
sumption prevails  it  was  taken  in  payment  of  debt;  Vacheron  v.  Hildebrant, 
39  Misc.  62,  78  N.  Y.  Supp.  771,  holding  where  debtor  gives  creditor  note  of 
third  person  simultaneously  with  contracting  debt,  presumption  is  that  it  was 
received  in  satisfaction  of  debt;  MacMahon  v.  United  States  L.  Ins.  Co.  68 
L.R.A.  91,  63  C.  C.  A.  130,  128  Fed.  392,  holding  insurance  company  which 
receives  and  accepts  draft  on  bank  for  renewed  insurance,  cannot,  on  suspension 
of  bank,  charge  loss  thereon  to  insured  and  cancel  policies  for  nonpayment  of 
premium;  Fuller  Buggy  Co.  v.  Waldron,  112  App.  Div.  816,  99  N.  Y.  Supp. 
561,  holding  where  check  and  renewal  note  are  taken  in  payment  of  former 
note,  burden  is  on  maker  to  show  old  note  is  paid. 

Cited  in  notes   (10  L.R.A.(N.S.)    522,  524,  538)    on  effect  of  transfer,  without 
indorsement,    of   worthless   check,   or   note   of  third    person;     (35    L.R.A.  (X.S.) 
46,  47)  on  payment  by  commercial  paper. 
Question    for   jury   as    to    intent. 

Cited  in  Empire  State  Type  Founding  Co.  v.  Grant,  114  N.  Y.  44,  21  N.  E.  49, 
holding  question  of  intent  as  to  concurrence  of  delivery  and  payment,  for  jury; 
Fallihee  v.  Wittmayer,  9  S.  D.  478,  70  N.  W.  642,  holding  verdict  conclusive  on 
intention  of  parties  as  to  application  of  part  of  note  in  payment  of  mortgage. 

Criticised  in  Dille  v.  White,  132  Iowa,  336,  10  L.R.A.  (X.S.)    545,   109  N.  W. 
909,  holding  intention  of  parties  shall  prevail  in  determining  whether  delivery 
of  note,  check  or  draft,   drawn  by  debtor  or  third  person  are  to  be  taken  as 
absolute  or  conditional  payment. 
Direction    of    verdict. 

Cited  in  Toms  v.  Greenwood,  30  N.  Y.  S.  R.  479,  9  N.  Y.  Supp.  666,  holding, 
on  appeal  from  interlocutory  judgment,  court  not  restricted  to  question  whether 
there  is  any  evidence  to  support  finding. 

Distinguished  in  Dougherty  v.  Horseheads,  73  Hun,  447,  26  N.  Y.  Supp.  642, 
holding  nonsuit  improper,  there  being  more  than  a  scintilla  of  evidence  to  uphold 
plaintiff's  case. 

5  L.  R.  A.  805,  FOWLER  v.  METROPOLITAN  L.  INS.  CO.  116  N.  Y.  389,  22 

N.  E.  576. 

Report  of  second  appeal  in  37  N.  Y.  S.  R.  623,  13  N.  Y.  Supp.  755. 
Conditions    in    Insurance    contract;    forfeiture. 

Cited  in  Stayner  v.  Equitable  Life  Assur.  Soc.  22  Misc.  54,  48  X.  Y.  Supp.  380, 
holding  equity  will  not  relieve  insured  from  consequences  of  legal  forfeiture; 
Palmer  v.  Mutual  L.  Ins.  Co.  38  Misc.  323,  77  X.  Y.  Supp.  869,  holding  paid-up 
policy  may  be  subject  to  forfeiture;  Union  Cent.  L.  Ins.  Co.  v.  Chowning,  8  Tex. 
Civ.  App.  460,  28  S.  W.  117,  holding  policy  forfeited  upon  failure  to  pay  first 
premium  note  on  maturity;  Mutual  Reserve  Fund  Life  Asso.  v.  Cleveland  Woolen 
Mills,  27  C.  C.  A.  215,  54  U.  S.  App.  290,  82  Fed.  511,  holding  nonpayment  of 
itself,  acts  as  forfeiture  in  New  York;  Liverpool,  L.  &  G.  Ins.  Co.  v.  Richardson 
Lumber  Co.  11  Okla.  612,  69  Pac.  938,  denying  insurance  company's  liability  on 
policy  after  insured's  violation  of  "space"  clause ;  Dimick  v.  Metropolitan  L.  Ins. 
Co.  69  N.  J.  L.  403,  62  L.  R.  A.  783,  55  Atl.  291,  holding  false  answers  recorded 


979  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  813 

by  agent  in  application  avoids  policy  because  one  inviting  answers  was  agent  of 
insured;  Manhattan  L.  Ins.  Co.  v.  Wright,  61  C.  C.  A.  141,  126  Fed.  85,  holding 
stipulation  in  policy,  avoiding  contract  of  premium  not  paid  at  certain  date,  en- 
forceable; McCullough  v.  Home  Ins.  Co.  118  Tenn.  273,  100  S.  W.  104,  12  A. 
•&  E.  Ann.  Cas.  626,  upholding  provision  for  suspension  of  liability  under  fire 
policy  in  case  of  default  in  payment  of  premiums;  Sharpe  v.  New  York  L.  Ins. 
€o.  5  Neb.  (Unof.)  286,  98  N.  W.  66,  sustaining  forfeiture  for  default  in  pay- 
ment of  note,  where  express  provision  therefor  is  contained  therein;  Illinois 
L.  Ins.  Co.  v.  McKay,  6  Ga.  App.  291,  64  S.  E.  1131,  holding  where  payment 
by  mail  is  expressly  or  impliedly  authorized  by  insurer,  there  is  sufficient  pay- 
ment if  remittance  is  made  in  ample  time  to  reach  company  in  due  course  on 
or  at  date  when  premium  falls  due;  Dimick  v.  Metropolitan  L.  Ins.  Co.  69  N. 
J.  L.  403,  62  L.R.A.  774,  55  Atl.  291,  on  right  of  insured  to  avoid  warranty  in 
application  based  on  acts  of  agents  contrary  to  express  limitation  of  his 
authority. 

Cited  in  footnote  to  Robinson  v.  Continental  Ins.  Co.  6  L.  R.  A.  95,  which  holds 
valid,  stipulation  against  liability  while  premium  note  unpaid. 

Cited  in  notes   (11  L.  R.  A.  345)   on  conditions  in  insurance  policy;    (9  L.  R 
A.  189)   on  forfeiture  of  benefit  certificate  for  nonpayment  of  assessment. 
Variance    of    terms    of    policy. 

Cited  in  McLaughlin  v.  Equitable  Life  Assur.  Soc.  38  Neb.  733,  57  N.  W.  557. 
holding,  in  absence  of  fraud  or  mistake,  all  previous  verbal  agreements  merged  in 
policy;  Northern  Assur.  Co.  v.  Grand  View  Bldg.  Asso.  183  U.  S.  325,  46  L.  ed. 
221,  22  Sup.  Ct.  Rep.  133,  holding  valid  policy  cannot  be  varied  by  parol  con- 
temporaneous evidence. 

5  L.  R.  A.  810,  DAVIS  v.  ELY,  104  N.  C.  16,  17  Am.  St.  Rep.  667,  10  S.  E.  138. 

Specific  performance  of  reformed  contract  granted  in  Davis  v.  Terry,  114  N.  C. 
30,  18  S.  E.  947. 
Reformation    or    rescission    of    contract. 

Cited  in  Butler  v.  Threlkeld,  117  Iowa,  119,  90  N.  W.  584,  correcting  lease  by 
adding  option  of  lessee  to  purchase,  omitted  by  mistake,  and  enforcing  contract 
as  amended;  Allen  v.  Kitchen,  16  Idaho,  148,  —  L.R.A.(N.S.)  — ,  100  Pac. 
1052,  holding  equity  has  no  power  to  construct  executory  contract  for  parties 
or  insert  therein  new  and  essential  elements. 

Cited  in  footnote  to  Bigham  v.  Madison,  47  L.  R.  A.  267,  which  authorizes 
rescission  for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor. 

Cited  in  notes  (28  L.R.A.(N.S.)  902,  905)  on  reformation  for  mistake  of 
law  as  to  effect  of  instrument;  (22  Eng.  Rul.  Cas.  869;  65  Am.  St.  Rep.  481, 
482,  502)  on  reformation  of  contracts. 

5  L.  R.  A.  813,  GRAHLMAN  v.  CHICAGO,  ST.  P.  &  K.  C.  R,  CO.  78  Iowa,  564, 

43  N.  W.  529. 
Duty    as     to     cattle-grnards. 

Cited  in  Robinson  v.  Chicago,  R.  I.  P.  R-  Co.  79  Iowa,  497,  44  N.  W.  718,  hold- 
ing that  railroad  must  use  ordinary  care  to  keep  cattle-guards  free  from  snow  and 
ice,  after  notice  of  obstruction,  or  opportunity  to  obtain  it;  Giger  v.  Chicago 

6  X.  W.  R.  Co.  80  Iowa,  494,  45  N.  W.  906,  holding  permitting  of  cattle-guard 
to  be  filled  with  snow  is  failure  to  maintain  good  and  sufficient  cattle-guard  as 
required  by  statute. 

Cited  in  footnote  to  Birmingham  Mineral  R.  Co.  v.  Parsons,  27  L.  R,  A.  263, 


5  L.R.A.  813]  L.  R.  A.  CASES  AS  AUTHORITIES.  880 

which  holds  valid,  act  requiring  railroads  to  build  cattle-guards  on  demand  of 
land  owner. 

Cited   in   notes    (20   Am.   St.   Rep.   162)    on   duty  of  railroad   company   as  to 
cattle  on  track;    (9   L.R.A. (K.S.)    354)    on   duty  of   railroad  to  fence  right   of 
way;    (36   L.R.A. ( N.S. )    998,   999,    1000)    on   duty   of    railroad  to  keep   cattle 
guards  in  condition. 
Evidence   of   condition   before  and   after  accident. 

Cited  in  notes  (32  L.R.A. (N.S.)  1089)  on  admissibility  of  evidence  of  condi- 
tion before  and  after  accident  of  property  whose  defects  alleged  to  have  caused 
injury;  (11  Eng.  Rul.  Cas.  247)  on  admissibility  of  evidence  of  failure  to- 
correct  defect. 

5  L.  R.  A.  814,  STATE  v.  POTTS,  78  Iowa,  656,  43  N.  W.  534. 
"Witnesses;    evidence    of    Deputation. 

Cited  in  Schoep  v.  Bankers  Alliance  Ins.  Co.  104  Iowa,  357,  73  N.  W.  825,  hold- 
ing reputation  of  witness  in  place  from  which  he  has  been  absent  for  year  ad- 
missible; McGuire  v.  Kenefick,  111  Iowa,  149,  82  N.  W.  485,  holding  reputation  in. 
place  where  witness  resided  seven  years  back  inadmissible,  unless  residence  not 
acquired  elsewhere;  Re  Brown,  143  Iowa,  658,  120  N.  W.  667,  holding  proof 
of  reputation  of  witness  at  place  of  trial  admissible  where  he  maintained  his 
home  for  some  years  but  during  year  previous  had  moved  into  adjoining  state, 
he  claiming  place  of  trial  as  still  his  home. 
Bribery. 

Cited  in  State  v.  Campbell,  73  Kan.  719,  9  L.R.A. (X.S.)  547,  85  Pac.  784. 
9  A.  &  E.  Ann.  Cas.  1203,  holding  acceptance  of  money  to  influence  action  in 
awarding  contract  constitutes  bribery  although  before  contract  became  binding 
it  had  to  be  ratified  by  designated  officer;  Murphy  v.  State,  124  Wis.  651,  102 
X.  W.  1087,  holding  member  of  city  council  who  receives  money  to  influence 
his  note  on  matter  pending  before  council  over  which  it  had  jurisdiction,  subject 
to  indictment  for  bribery;  People  v.  Jackson,  191  N.  Y.  300,  15  L.R.A.  (X.S.)  1177, 
84  N.  E.  65,  14  A.  &  E.  Ann.  Cas.  243,  holding  acceptance  of  money  by  coroner 
for  agreeing  to  discharge  witness  whom  he  has  caused  to  be  arrested  in  investi- 
gation of  death,  bribery  regardless  of  actual  jurisdiction  of  coroner  to  cause 
arrest;  Re  Bunkers,  1  Cal.  App.  67,  81  Pac.  748,  holding  question  of  power  of 
legislature  to  make  investigation  immaterial  in  prosecution  of  member  thereof 
for  bribery  in  use  of  influence  to  save  certain  persons  from  appearance,  an 
investigation  being  then  pending. 

Cited  in  footnote  to  State  v.  Lehman,  66  L.R.A.  490,  which  holds  that  ques- 
tion of  legality  or  illegality  of  proposed  ordinance  need  not  be  considered  in 
determining  guilt  of  member  of  council  who  is  alleged  to  have  agreed  to  sell 
his  vote  to  secure  its  passage. 

Cited  in  note    (15  L.R.A. (N.S.)    1175)    on  jurisdiction  or  authority  of  officer 
to  act  as  element  of  bribery. 
Instructions   on   matters   not   proved. 

Cited  in  note  (17  Am.  St.  Rep.  252)  on  instructions  upon  matters  not  proved, 
disputed  nor  involved  in  the  case. 

5  L.  R.  A.  816,  UNITED  STATES  v.  MALLARD,  40  Fed.  151. 
Perjnry. 

Cited  in  Markey  v.  State,  47  Fla.  59,  37  So.  53,  holding  false  statement  or 
testimony  must  be  made  or  given  under  oath  actually  administered  in  order  to 
constitute  perjury;  Com.  v.  McCue,  46  Pa.  Super.  Ct.  422,  holding  that  oath 


981  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  821 

by  party   is  effectively  taken,   if  no  objection   to  form   is  taken   at  time  it  is 
administered. 

5  L.  R.  A.  817,  McGOWEN  v.  MORGAN'S  LOUISIANA  &  T.  R.  &  S.  S.  CO.  41 

La.  Ann.  732,  17  Am.  St.  Rep.  415,  6  So.  606. 
Regulation**    of    carriers. 

Cited  in  Illinois  C.  R.  Co.  v.  Louthan,  80  111.  App.  590,  holding  it  duty  of  pas- 
senger to  conform  to  reasonable  regulations,  railroad  being  liable  only  for  use 
of  excessive  force,  and  wilful  or  wanton  acts. 

Cited  in  footnote  to  Faber  v.  Chicago  G.  W.  R.  Co.  36  L.  R.  A.  789,  which  sus- 
tains regulation  against  passengers  passing  conductor  into  part  of  train  through 
which  he  has  come  without  paying  fares. 

Cited  in  notes   (16  L.  R.  A.  449)   on  regulations  as  to  admission  of  passenger 
to  train  house. 
Condition*     as     to     tickets. 

Cited  in  footnotes  to  Reese  v.  Pennsylvania  R.  Co.  6  L.  R.  A.  529,  which  holds 
«xtra  demand  of  10  cents  from  passenger  without  ticket,  to  be  refunded,  valid; 
<3ulf,  C.  &  S.  F.  R.  Co.  v.  Henry,  16  L.  R.  A.  318,  which  holds  that  ticket  good 
for  continuous  passage  does  not  entitle  holder  to  stop  at  intermediate  points; 
United  R.  &  Electric  Co.  v.  Hardesty,  57  L.  R,  A.  276,  which  denies  carrier's 
duty  to  accept  coupon  detached  from  commutation  book. 

Cited  in  notes    (20  L.  R.  A.  483)    on  validity  of  extra  charge  for  passenger 
fare  when  paid  upon  train;    (12  L.  R,  A.  340)    on  stipulations  in  contract  of 
carriage  of  passenger. 
Expulsion    of    passengers. 

Cited  in  Virginia  &  S.  W.  R.  Co.  v.  Hill,  105  Va.  743,  6  L.R.A. (N.S.)  904, 
54  S.  E.  872,  holding  it  error  to  refuse  to  give  requested  instruction  that  plain- 
tiff could  not  recover  for  injuries  to  which  his  own  negligence  contributed,  and 
that  conductor  committed  no  tort  if  he  used  no  unnecessary  force  in  expelling 
passenger  for  refusing  to  pay  fare  beyond  point  provided  in  ticket. 

Cited  in  footnotes  to  Kansas  City,  M.  &  B.  R.  Co.  v.  Riley,  13  L.  R.  A.  38, 
which  holds  carrier  liable  for  conductor's  refusal  to  accept  return  coupon,  and 
ejecting  passenger;  Wardwell  v.  Chicago,  M.  &  St.  P.  R.  Co.  13  L.  R.  A.  596, 
which  authorizes  ejection  for  refusal  to  make  up  deficiency  of  one  from  whom 
less  than  full  fare  mistakenly  received;  Trezona  v.  Chicago  G.  W.  R.  Co.  43  L. 
R.  A.  136,  which  denies  carrier's  liability  for  ejecting  one  attempting  to  ride 
on  ticket  which  he  knows  does  not  on  its  face  entitle  him  to  a  ride. 

Cited  in  notes  (9  L.  R.  A.  132;  9  L.  R.  A.  688;  11  L.  R.  A.  432)  on  expulsion 
of  passenger;  (12  L.  R.  A.. 824)  on  ejection  of  passenger  for  refusal  to  pay  fare. 

Disapproved  in  effect  in  Hot  Springs  R.  Co.  v.  Deloney,  65  Ark.  181,  67  Am. 
St.  Rep.  913,  45  S.  W.  351,  holding  railroad  liable  for  expulsion  of  passenger 
presenting  insufficient  ticket  because  of  mistake  of  ticket  agent,  although  con- 
ductor acted  under  reasonable  regulation. 

5  L.  R.  A.  821,  SHELL  v.  DUNCAN,  31  S.  C.  547,  10  S.  E.  330. 
Conclnsiveness    of    presnmption    in    favor   of   tax    deed. 

Cited  in  Bull  v.  Kirk,  37  S.  C.  399,  16  S.  E.  151,  upholding  plaintiff's  right 
to  show  that  property  sold  was  not  same  as  that  advertised  in  action  to  recover 
same  within  two  years  after  its  sale;  Pool  v.  Evans,  57  S.  C.  88,  35  S.  E.  436, 
holding  failure  to  comply  with  prerequisites  to  valid  sale  may  be  shown,  with- 
out regard  to  number  of  persons  through  whom  title  has  passed;  Heywaird  v. 
Christensen,  80  S.  C.  149,  61  S.  E.  399,  holding  if  deed  is  good  on  its  face, 
presumption  is  that  all  proceedings  as  to  sale  were  regular. 


5  L.R.A.  821]  L.  R.  A.  CASES  AS  AUTHORITIES.  982 

Sale    of    entire    tract    of   land    for    tax. 

Cited  in  Wilson   v.   CantreK,   40   S.   C.   131,   18   S.  E.   517,  upholding  sale  oi 
entire  tract,  though  tax  might  have  obtained  from   sale  of   part  of  tract. 
Effect   of   tax   sale   on    existing:   encumbrances. 

Cited  in  Interstate  Bldg.  &  L.  Asso.  v.  Waters,  50  S.  C.  467,  27  S.  E.  948,  hold- 
ing that  when  prerequisites  of  sale  are  complied  with,  purchaser  takes  property 
discharged  of  all  lien  by  mortgage  or  otherwise. 
Xatnre    of    widow's    dower    right. 

Cited  in  Davis  v.  Townsend,  32  S.  C.  114,  10  S.  E.  837,  holding  inchoate  right 
of  dower  not  an  estate;  Holley  v.  Glover,  36  S.  C.  408,  16  L.  R.  A.  778,  31  Am. 
St.  Rep.  883,  15  S.  E.  605,  and  McCreery  v.  Davis,  44  S.  C.  227,  28  L.  R.  A.  667., 
51  Am.  St.  Rep.  794,  22  S.  E.  178,  holding  right  of  dower,  though  inchoate,  re 
substantial  right  of  property,  and  not  mere  lien. 
Defeat  of  right  of  dower. 

Cited  in  Elder  v.  Mclntosh,  88  S.  C.  292,  70  S.  E.  807,  holding  that  alienee 
of  husband  cannot  claim  homestead  in  land  aliened  against  judgment  of  alienors 
widow  for  sum  of  money  assessed  in  lieu  of  dower  in  land. 

Cited  in  footnote  to  Kursheedt  v.  Union  Dime  Sav.  Inst.  7  L.  R.  A.  229,  which 
holds  inchoate  right  of  dower  not  cut  off  by  judgment  in  foreclosure  suit  IB 
which  mortgagor's  wife  not  served. 

Cited  in  notes  (13  L.  R.  A.  441,  442)  on  bar  on  inchoate  right  of  dower;  (18 
L.  R,  A.  79)  on  power  of  husband,  or  his  creditors,  to  defeat  wife's  right  of 
dower;  (24  L.R.A.(N.S.)  1294)  on  effect  of  tax  sale  upon  inchoate  dower. 

Distinguished  in  Lucas  v.  Purdy,   142   Iowa,  368,  24   L.R.A.  (X.S.)    1299,   12t) 
N.  W.  1063,  holding,  under  statute,  valid  tax  deed  of  land  belonging  to  husband 
divests  wife's  dower. 
Effect    of    partition    on    dower. 

Cited  in  Haggerty  v.  Wagner,  148  Ind.  662,  39  L.  R.  A.  395,  48  N.  E.  366  (d» 
senting  opinion),  majority  holding  widow  bound  by  partition  between  eotenants 
during  husband's   lifetime,   although  not  party  to  partition   proceeding, 
Actions    for    recovery    of    dower. 

Cited  in  Bostick  v.  Barnes,  59  S.  C.  28,  37  S.  E.  24,  holding  widow  may  main 
tain  action  for  dower  against  several  alienees  of  different  tracts  of  land  jointly; 
Lucas  v.  White,  120  Iowa,  741,  98  Am.  St.  Rep.  380,  95  X.  W.  209,  holding 
that  statute  of  limitations  begins  to  operate  against  wife's  right  of  dower  at 
husband's  death. 
Power  to  change  law  of  descent. 

Cited  in  Burget  v.  Merritt,  155  Ind.   148,  57  N.  E.  714,  holding  that,  before 
expectancy   has   ripened   into  vested  estate,  legislature  may   impose   such   condi 
tions  or  changes  in  law  of  descent  as  it  sees  fit. 
Adjournment   of  tax  sales. 

Cited  in  note   (97  Am.  St.  Rep.  656)   on  adjournment  of  tax  sales. 

5  L.  R.  A.  832,  GORE  v.  STATE,  52  Ark.  285,  12  S.  W.  564. 
Effect    of   absence   of   accused. 

Cited  in  Bennett  v.  State,  62  Ark.  537,  36  S.  W.  947,  holding  taking  of  tes- 
timony, while  defendant  in  felony  case  absent  witli  court's  permission,  preju- 
dicial error;  Falk  v.  United  States,  15  App.  D.  C.  450,  holding  court  may  pro- 
ceed with  trial  after  absconding  of  defendant  in  case  involving  less  than  capita)1 
punishment;  Baker  v.  State.  58  Ark.  520,  25  S.  W.  603  holding  return  oi 
verdict  in  felony  case,  during  absence  of  defendant's  counsel,  without  calling  him., 
not  prejudicial,  where  no  request  that  counsel  should  be  present;  Frey  v. 


083  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  837 

Calhoun  Circuit  Judge,  107  Mich.  132,  64  N.  W.  1047,  holding  that  failure  of 
one  on  trial  for  felony  to  appear  at  time  to  which  court  adjourned,  pending  jury's 
deliberations,  will  not  invalidate  verdict  returned  during  such  absence,  not- 
withstanding statute  requiring  presence  during  trial;  Lee  v.  State.  56  Ark.  7, 
19  S.  W.  16,  holding  administering  statutory  oath  to  officer  in  charge  of  jury, 
and  admonishing  jury  as  to  their  duty  in  defendant's  absence,  not  prejudicial 
where  party  was  voluntarily  absent  and  afforded  opportunity  to  rectify  before 
jury  left  box. 

Annotation  cited  in  State  v.  Way,  76  Kan.  934,  14  L.R.A.(N.S.)  607,  93  Pac. 
159,  holding  absence  of  accused  does  not  invalidate  verdict  where  he  is  volun- 
tarily absent  without  having  been  excused  by  court. 

Cited  in  footnotes  to  State  v.  Mannion,  45  L.  R.  A.  638,  which  holds  rights  of 
accused  to  meet  witnesses  violated  by  placing  him  out  of  sight  and  hearing  of 
witness;  State  v.  Smith,  8  L.  R.  A.  774,  which  holds  question  of  juror's  ill- 
ness cannot  be  determined  in  absence  of  accused. 

Cited  in  notes   (39  L.R.A.  821)   as  to  right  of  prisoner  to  appear  unmanacled 
at  his  trial;    (14  L.R.A. ( N.S. )    604;   32  L.R.A.(N.S.)    307)    on  right  of  accused 
to  waive  presence   at  receipt  of  verdict  upon  trial  for  felony;    (129   Am.   St. 
Rep.  43)   on  constitutional  right  of  accused  to  be  confronted  by  witnesses. 
Right    to    jury    trial. 

Cited  in  footnote  to  People  v.  Powell,  11  L.  R.  A.  75,  which  sustains  right 
to  have  jury  selected  from  county  where  crime  supposed  to  have  been  committed. 

5  L.  R.  A.  837,  MERRIGAN  v.  ENGLISH,  9  Mont.   113,  22  Pac.  454. 
Mechanics'    liens;    nature    of    Montana    law. 

Cited  in  Duignan  v.  Montana  Club,  16  Mont.  190,  40  Pac.  294,  holding,  since 
statute  of  1887,  mechanics'  lien  law  of  that  state  is  direct  lien  system. 
I. i«-n    of    subcontractor. 

Cited  in  Eccleston  v.  Hetting,  17  Mont.  89,  42  Pac.  105,  and  Duignan  v.  Mon- 
tana Club,  16  Mont.  190,  40  Pac.  294,  holding  person  furnishing  labor  or  ma- 
terial under  contract  with  subcontractor  is  himself  subcontractor;  Robertson 
Lumber  Co.  v.  State  Bank,  14  N.  D.  516,  105  N.  W.  719,  upholding  statute  giving 
direct  lien  to  subcontractor  for  work  done  or  material  furnished  under  contract 
between  contractor  and  owner;  Prince  v.  Xeal-Millard  Co.  124  Ga.  887,  53  S. 
E.  761,  4  A.  &  E.  Ann.  Cas.  .615,  sustaining  validity  of  statute  giving  lien  in 
favor  of  materialmen  furnishing  material  to  contractor  for  improvement  of 
real  estate. 

Cited  in  footnote  to  Hightower  v.  Bailey,  49  L.  R.  A.  255,  which  sustains 
lien  to  subcontractors  or  materialmen  irrespective  of  notice  of  claim  or  state 
of  account  between  owner  and  principal  contractor. 

Cited  in  note    (7  L.  R.  A.  711)    on  right  of  subcontractor  to  lien. 
Liability    of    homestead. 

Cited  in  Bonner  v.  Minnier,  13  Mont.  275,  40  Am.  St.  Rep.  441,  34  Pac.  30, 
holding  homestead  not  exempt  from  lien  for  material  furnished  for  improvement. 
Priority  of  lien  over  mortgage. 

Cited  in  Murray  v.  Swanson,  18  Mont.  535,  46  Pac.  441,  holding  lien  of  mort- 
"a<*e,  taken  pending  work  on  building,  inferior  to  mechanic's  lien  for  labor  subse- 
quently performed. 

Cited  in  notes  (12  L.  R.  A.  35)  on  priority  of  mechanics'  liens  over  other 
liens;  (16  L.  R.  A.  335)  on  relation  back  of  subcontractor's  lien  to  date  of 
that  of  original  contractor. 


5  LRJL  8371  L.  B.  A.  CASES  AS  AUTHORITIES.  »M 

Claim    for    which    Hem    attache*. 

Cited  in  Broyhill  v.  Gaither,  119  N.  G.  445,  26  S.  E.  31,  holding  contractor 
entitled  to  lien  for  entire  contract  price,  and  not  simply  for  value  of  labor 
performed;  Wortman  T.  Kleinsehmidt,  12  Mont.  345,  30  Pae.  280  (dissenting 
opinion),,  majority  holding  contractor  not  entitled  to  lien  for  extra  labor  and 
materials  furnished  contrary  to  contract. 

Distinguished  in  Lane  v.  Lane  Potter  Lumber  Co.  40  Mont.  550,  10?  Pac. 
898,  holding,  under  statute,  contractor  not  agent  of  owner,  unless  so  by  con- 
tract, and  laborer  under  such  contractor  not  entitled  to  lien. 
Reo;mt*ite*  of  otmtOMeMt  for  ««•». 

Cited  in  Smith  r.  Sherman  Min.  Co.  12  Mont.  528,  31  Pac.  72,  holding  state- 
ment of  account  for  lien  need  not  contain  statement  of  items,  nor  nature  of 
work;  Mclntyre  T.  Mac  GInniss,  41  Mont.  98,  137  Am.  St.  Kep.  701,  108  Pac. 
353,  holding  notice  of  mechanic's  lien  giving  honest  statement  from  which  it 
may  he  understood  what  amount,  is  claimed,  sufficient. 

5  L.  R  A.  841,  SPRINGFIELD  F.  &  M.  INS.  CO.  v.  WTNX,  27  Neb.  649,  43  N. 

W.  401. 
I *••!-»•<•«•:    eaT««t    of    mtar*i»r«-*eatatio»*    IB    proof*    of    loss. 

Cited  in  Home  Ins.  Co.  T.  Winn,  42  Neb.  334,  60  N.  W.  575,  holding  false 
representations  as  to  value  of  property  in  proofs  of  loss  avoids  policy,  unless 
actual  value  exceeds  insurance;  Havlik  v.  St.  Paul  F.  ft  M.  Ins.  Co.  f " 
430,  127  N.  W.  24S,  holding  that  unless  false  statements  in  proof  of  loss  affect 
the  risk  they  do  not  render  policy  void. 

Cited  in  note  (32  LRJL(N,S.)  459)  on  insurance;  effect  of  false  swearing 
in  proofs  of  loss. 

Disapproved  in  effect  in  Fowler  v.  Phoenix  Ins.  Co.  35  Or.  562,  57  Pac.  421, 
holding  intentional  false  «*»*«««*•*  in  proofs  of  loss,  for  purpose  of  defraud- 
ings,  avoids  policy. 

5  L.  R.  A.  844,  SEWARD  T.  HAYDEN,  150  Mass.  158,  22  N.  E.  629,  15  Am. 
St.  Rep.  183,  22  N.  E.  629. 


Cited  in  Walker  v.  John  Hancock  Mot.  L.  Ins.  Co.  167  Mass.  189,  45  X.  E. 
89,  holding  words  "from  date"  in  contract  exclude  day  of  date,  in  absence  of 
showing  of  contrary  intention;  Perkins  T.  Jennings,  27  Wash.  148,  67  Pac.  590, 
holding  day  of  payment  should  be  excluded  in  computing  time  within  which 
action  must  be  commenced  on  promissory  note;  Grant  v.  Paddock,  30  Or.  319, 
47  Pae.  712,  holding  that  in  computing  time  limited  by  statute  for  commencing 
action  to  recover  real  property,  day  on  which  cause  of  action  accrued  should 
be  excluded;  Nebola  v.  Minnesota,  Iron  Co.  102  Minn.  92,  112  X.  W.  880,  12 
A.  &  E.  Ann.  Cas.  56,  holding  day  on  which  cause  of  action  accrued  excluded  in 
determining  commencement  of  statute  of  limitations;  Stnrdivant  v.  McCorley, 
83  Ark.  281,  11  LuRA.(NJS.)  828,  103  S.  W.  732,' holding  statute  of  limitations 
runs  from  date  of  debt  payable  on  demand. 

Cited  in  footnote  to  People  v.  Barry,  IS  L.  R.  A.  337,  which  requires  exclusion 
of  day  of  jaatku  and  return  day  in  computing  time  for  appearance. 

Cited  in  notes  (11  L.  R.  A.  724)  on  computation  of  time;  (13  L.  R.  A.  40)  on 
exclusion  of  Sunday  in  computations  of  time;  (49  L.  R.  A.  195,  196,  212,  213, 
215)  on  rule  as  to  first  and  last  days  in  computation  of  time;  (11  L.  R.  A.  701 ) 
on  computation  of  time  under  statute*  of  Imitations;  (78  AOL  St  Eep.  373) 
OBI  auanpulaliua  of 


&?5  L.  B.  A,  CASES  AS  AUTHORITIES.  [5  LJELA.  848 

5  L.  B-  A,  848,  QUTMBY  v.  BOSTON  &  M.  R,  150  Mass.  365,  23  N.  E.  205. 
Carrier*;    validity    of   special    rout  rapt*    limiting    liability. 

Cited  in  Rogers  v.  Kennebec  S.  B.  Co.  86  Me.  274,  25  L.  R.  A.  496,  29  AtL 
1069,  holding  special  contract,  relieving  carrier  from  liability  to  free  passenger, 
valid;  Pittsburgh,  C.  C.  A  St.  L.  R.  Co.  v.  Mahoney,  148  Ind.  200,  40  L.  R. 
A.  104,  62  Am.  St.  Rep.  503,  46  N.  E.  917,  Subsequent  Appeal  in  29  Ind. 
App.  656,  63  N.  E.  231,  holding  stipulation  for  exemption  from  liability  for  neg- 
ligence in  contract  for  transportation  of  express  matter  valid;  Doyle  v.  Fitch- 
burg  R.  Co.  166  Mass.  497,  33  L.  R.  A.  846,  55  Am.  St.  Rep.  417,  44  X.  E.  611, 
holding  railroad  may  contract  with  free  passenger  for  exemption  from  liability 
for  injury,  except  from  wilful  negligence;  Walther  v.  Southern  P.  Co.  159  CaL 
773,  37  I/.RJMXJ3.)  239,  116  Pac.  51,  holding  agreement  on  part  of  person 
riding  on  free  pass,  that  carrier  will  not  be  held  liable  for  negligence,  valid; 
Dugan  v.  Blue  Hill  Street  R.  Co.  193  Mass.  434,  79  N.  E.  748,  holding  terms 
of  pass,  requiring  assumption  of  risk  by  passenger,  binding  where  pass  is  issued 
as  gratuity,  but  not  binding  where  issued  to  employee  as  one  of  terms  of  employ- 
ment: Mann  v.  Pere  Marquette,  135  Mich.  219,  97  X.  W.  721,  holding  contract 
by  railroad  on  building  side  track  that  owners  of  adjacent  property  should 
assume  liability  for  loss  of  property  by  fire,  binding;  James  Quirk  Mill.  Co. 
v.  Minneapolis  A  St.  L.  R.  Co.  98  Minn.  27,  116  Am.  St.  Rep.  336,  107  X.  W. 
742.  holding  contract  by  railroad  and  owner  of  elevator,  exempting  railroad 
from  liability  for  loss  from  fire,  the  exemption  being  in  consideration  for  permit 
to  build  elevator,  binding;  Stone  v.  Union  P.  R.  Co.  32  Utah,  201,  89  Pac.  715, 
holding  release  by  employee  of  express  company  who  is  also  employee  of  railroad 
company,  executed  to  express  company,  whereby  railroad  company  was  released 
for  any  injury  to  employee  in  course  of  his  employment  through  its  negligence, 
void.  » 

Cited  in  notes  (22  L.RJL  797)  on  right  of  person  riding  on  pass  or  contract 
for  free  passage;    (48  L.  ed.  U.  S.  742,  743;   37  LR-A.<X-S.)    235,  241,  248) 
on  validity  of  stipulation  in  pass  limiting  carrier's  liability. 
Omi*»ion    of   pmMCBger   to   *lgm  eo»tr»et   OB    fmmm   or   ticket. 

Cited  in  Walker  v.  Price,  62  Kan.  331,  84  Am.  St.  Rep.  392,  62  Pac.  1001, 
holding  failure  of  passenger  to  sign  condition  limiting  time  of  ticket  does 
not  relieve  him  from  observance  of  condition;  Fonseca  v.  Cunard  S.  S.  Co.  153 
Mass.  556  12  L.  R.  A.  341,  25  Am.  St.  Rep.  660,  27  X.  E.  665,  holding  failure 
of  passenger  to  sign  contract  on  ticket  exempting  carrier  from  liability  for  loss 
of  baggage,  immaterial;  Ballou  v.  Earle,  17  R.  I.  443,  14  L.  R.  A.  435,  33  Am. 
St.  Rep.  881,  22  Atl.  1113,  holding  presumption  that  stipulations  limiting  com- 
mon-law liability  in  receipt  for  freight  were  assented  to  by  shipper;  Louisville, 
X.  A.  &  C.  R.  Co.  v.  Xicholai,  4  Ind.  App.  124,  51  Am.  St-  Rep.  206,  30  X.  E. 
424.  as  to  whether  passenger's  signature  to  contract  on  ticket  is  necessary  to 
make  same  binding. 

Cited  in  note   (84  Am,  St.  Rep.  403,  404)   on  binding  effect  of  conditions  in 
unsigned  passenger  tickets. 
Omission   of   paMeBgrer   to  re**   contract    o»    pam   or  ticket. 

Cited  in  Fonseca  v.  Cunard  S.  S.  Co.  153  Mass.  557.  12  L.  R.  A.  341,  25  Am. 
St.  Rep.  660.  27  X.  E.  665,  holding  passenger  cannot  plead  ignorance  of  terms 
of  contract  printed  on  back  of  ticket;  Mnldoon  v.  Seattle  City  R.  Co.  10  Wash. 
314.  45  Am.  St.  Rep.  787,  38  Pac.  995,  holding  person  riding  on  free  pass  bound 
by  condition  printed  thereon  limiting  liability  of  carrier,  whether  be  reads  it 
or  not:  Boering  v.  Chesapeake  Beach  R.  Co.  20  App.  D.  C.  510,  and  Rogers  T. 
Kennebec  S.  B.  Co.  86  Me.  267.  25  L.  R,  A.  496.  29  Atl.  1069,  holding  person 
using  pass  bound  by  condition  exempting  earner  from  liability  for  negligence, 


5  L.R.A.  846]  L.  R.  A.  CASES  AS  AUTHORITIES.  986 

although  pass  not  seen,  nor  condition  known;  Aiken  v.  Wabash  R.  Co.  80  Mo. 
App.  15,  holding,  when  special  contract  limiting  liability  as  to  baggage  printed 
on  face  of  ticket,  reading  is  presumed;  Harmon  v.  Jensen,  100  C.  C.  A.  115, 
176  Fed.  523,  holding  passenger  riding  on  regular  passenger  train  who  has 
paid  usual  fare  and  holds  ticket  which  he  may  rightly  suppose  is  in  common 
form,  may  reasonably  presume  ticket  is  what  circumstances  require  it  to  be, 
if  nothing  appear  to  repel  presumption,  even  if  condition  be  found  on  closer 
inspection;  Boering  v.  Chesapeake  Beach  R.  Co.  193  U.  S.  450,  48  L.  ed.  745, 
24  Sup.  Ct.  Rep.  515,  holding  acceptance  of  pass  containing  assumption  of  risk 
by  passenger  binding  on  passenger  though  notice  of  stipulation  not  brought  home 
to  him;  Brian  v.  Oregon  Short  Line  R.  Co.  40  Mont.  113,  25  L.R.A.(N.S.)  461, 
105  Pac.  489,  holding  passenger  who  accepts  special  ticket  containing  conditions, 
acts  upon  it  and  is  carried  part  way  bound  by  conditions  whether  he  has  read 
or  signed  it;  French  v.  Merchants'  &  M.  Transp.  Co.  199  Mass.  435,  19  L.R.A. 
<N.S.)  1009,  127  Am.  St.  Rep.  506,  85  N.  E.  424,  holding  one  who  purchases  and 
accepts  ticket  on  which  terms  and  conditions  are  printed  bound  thereby  whether 
he  reads  contract  or  not. 

Cited  in  note    (99  Am.  St.  Rep.  367,  368)    on  effect  of  conditions  on  ticket 
not  known  to  passenger. 
Assumption    of    risk    by    free    passenger. 

Cited  in  Doyle  v.  Fitchburg  R.  Co.  166  Mass.  495,  33  L.  R.  A.  846,  55  Am. 
St.  Rep.  417,  44  N.  E.  611,  holding  railroad  liable  for  injury  to  employee  rid- 
ing on  free  ticket,  which  in  terms  exempts  company  from  liability  for  negli- 
gence; Payne  v.  Terre  Haute  &  I.  R.  Co.  157  Ind.  620,  56  L.  R.  A.  474,  62  N.  E. 
472;  Muldoon  v.  Seattle  City  R.  Co.  7  Wash.  530,  22  L.  R.  A.  798,  38  Am.  St. 
Rep.  901,  35  Pac.  422;  Northern  P.  R.  Co.  v.  Adams,  192  U.  S.  452,  48  L.  ed. 
517,  24  Sup.  Ct.  Rep.  408, — holding  that  passenger,  riding  on  free  pass  limit- 
ing liability  of  carrier  for  negligence,  cannot  recover  for  injuries;  Louisville, 
N.  A.  &  C.  R.  Co.  v.  Keefer,  146  Ind.  34,  38  L.  R.  A.  96,  58  Am.  St.  Rep.  348,  44 
N.  E.  796,  holding  contract  between  carrier  and  express  company,  limiting  car- 
rier's liability  for  negligence,  binding  on  messenger;  Hosmer  v.  Old  Colony  R. 
Co.  156  Mass.  508,  31  N.  E.  652,  holding  agreement  of  express  messenger,  rid- 
ing in  baggage  car,  to  assume  all  risk  of  injury  therefrom,  includes  injuries 
not  attributable  to  riding  in  baggage  car;  Holly  v.  Southern  R.  Co.  119  Ga. 
771,  47  S.  E.  188,  holding  carrier  not  liable  for  loss  of  baggage  of  passenger 
riding  on  gratuitous  pass,  the  pass  providing  against  such  liability. 
"Who  are  free  passenger*. 

Cited  in  Doyle  v.  Fitchburg  R.  Co.  166  Mass.  496,  33  L.  R.  A.  846,  55  Am. 
St.  Rep.  417,  44  N.  E.  611,  holding  ticket  issued  to  employee,  without  charge, 
to  ride  to  and  from  work,  not  gratuity. 

Distinguished  in  Heyward  v.  Boston  &  A.  R.  Co.  169  Mass.  469,  48  N.  E.  773, 
holding  person  riding  on  shipper's  pass  in  caboose  of  freight  train  not  free 
passenger. 

5  L.  R.  A.  849,  FARRINGTON  v.  SOUTH  BOSTON  R.  CO.  150  Mass.  406,  15 

Am.   St.  Rep.  222,  23  N.  E.   109. 
Title    of    pledgees. 

Cited  in  Germania  Safety-Vault  &  T.  Co.  v.  Boynton,  19  C.  C.  A.  120,  37  U. 
S.  App.  602,  71  Fed.  799,  holding  pledgee  of  corporation  securities  for  private 
purpose  of  officer  of  corporation  risks  losing  them,  if  officer  has  abused  trust; 
Buffalo  German  Ins.  Co.  v.  Third  Nat.  Bank,  19  Misc.  569,  43  N.  Y.  Supp.  550, 
holding  pledgee  of  stock,  having  actual  or  constructive  notice  of  infirmity  in  ti- 
tle of  holder,  takes  only  title  of  pledgeor;  Farmers'  Bank  v.  Diebold  Safe  &  Lock 


987  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  851 

Co.  66  Ohio  St.  377,  58  L.  R.  A.  624,  90  Am.  St.  Rep.  586,  64  N.  E.  518,  holding 

that  pledgee  taking  stock  without  inquiry,  and  without  transfer  on  books,  takes 

same    subject    to    equities    of    prior    assignee    from    whom    certificate    had    been 

stolen. 

Liability    for   acts    of   agent    adverse   to   principal. 

Cited  in  Manhattan  L.  Ins.  Co.  v.  Forty-second  Street  &  G.  Street  Ferry  R 
Co.  139  N.  Y.  151,  34  N.  E.  776,  holding  agent  cannot  bind  principal  where  he  is 
known  to  be  acting  for  himself,  or  to  have  adverse  interest;  Bank  of  New  York 
v.  American  Dock  &  T.  Co.  70  Hun,  154,  24  N.  Y.  Supp.  406,  holding  that  use, 
by  officer  of  corporation,  of  official  position  for  his  own  benefit  in  contract  for 
company,  puts  other  contracting  party  on  inquiry;  First  Nat.  Bank  v.  Foote. 
12  Utah,  171,  42  Pac.  205,  holding  third  party  dealing  with  agent  bound  to 
ascertain  whether  representations  are  authorized  by  principal;  Wheeling  Ice  & 
Storage  Co.  v.  Conner,  61  W.  Va.  124,  55  S.  E.  982,  holding  in  the  absence  of 
proof  of  authority  corporation  not  liable  on  personal  notes  of  its  secretary  who 
has  inuorsed  name  of  corporation  as  accommodation  indorser;  Farmers'  Loan 
&  T.  Co.  v.  Madison  Mfg.  Co.  153  Fed.  321,  holding  one  not  a  bona  fide  holder 
who  receives  bonds  or  stock  from  officer  who  is  exercising  functions  of  office 
and  at  same  time  using  securities  for  own  pecuniary  benefit. 

Distinguished  in  Havens  v.  Bank  of  Tarboro,  132  N.  C.  226,  95  Am.  St.  Rep. 
627,  43  S.  E.  639,  holding  bank  liable  to  pledgee  of  cashier  who  fraudulently  is- 
sued to  himself  certificates  signed  by  president  in  blank. 
Liability   of  corporation   for  overissued   stock. 

Cited  in  First  Avenue  Land  Co.  v.  Parker,  111  Wis.  9,  87  Am.  St.  Rep.  841, 
86  N.  W.  604,  holding  corporation  liable  in  tort  to  purchaser  of  overissued 
stock  signed  by  officers,  if  purchaser  ignorant  of  falsity  of  certificate,  and  free 
from  negligence;  Rogers  v.  Southern  Fiber  Co.  119  La.  718,  121  Am.  St.  Rep. 
537,  44  So.  442,  holding  corporation  not  liable  for  fraudulent  issue  of  stock  by 
its  president  where  he  is  knowingly  acting  for  himself;  Lucile  Dreyfus  Min. 
Co.  v.  Willard,  46  Wash.  356,  89  Pac.  935,  holding  corporation  not  liable  for 
fraudulent  issue  of  stock  by  agent  where  he  acts  in  dual  capacity  of  officer  of 
company  and  agent  for  stock  purchaser  in  transactions  appertaining  to  his 
personal  interests  from  which  company  receives  no  benefits. 

Cited  in  footnote  to  The  Jennie  Clarkson  Home  for  Children  v.  Missouri  K. 
&  T.  R.  Co.  70  L.R.A.  787,  which  holds  corporation  canceling  registration  of 
bonds  and  making  them  payable  to  bearer  contrary  to  agreement  liable  to 
owner  for  their  value,  although  transfer  agent  was  deceived  by  forgeries  of 
•owner's  agent  while  acting  outside  scope  of  authority. 

Cited  in  notes  (19  L.  R.  A.  332)  on  liability  of  corporation  for  fraud  or  for- 
gery of  its  officers  in  issue  of  stock;  (13  L.  R.  A.  193)  on  nonliability  of  cor- 
poration for  misfeasance  of  its  officers;  (87  Am.  St.  Rep.  848,  851,  853)  on 
fraudulent  and  over-issued  corporate  stock. 

5  L.  R.  A.  851,  HESSEL  v.  JOHNSON,  129  Pa.  173,  15  Am.  St.  Rep.  716,  18 

Atl.    754. 
Relation  of  landlord  and  tenant  necessary  to  risrht  of  distraint. 

Cited  in  Hessel  v.  Johnson,  142  Pa.  12,  11  L.  R.  A.  855,  28  W.  N.  C.  104,  21 
Atl.  794,  holding  subtenant's  goods  not  subject  to  distraint  for  rent  accruing 
under  new  lease  between  landlord  and  assignee  of  first  lessee,  without  notice 
to  subtenant;  McDonald  v.  May,  96  Mo.  App.  247,  69  S.  W.  1059,  holding  sub- 
lessee liable  to  original  lessor  for  whole  term  after  attornment;  Thompson  v. 
Stieren,  59  Pittsb.  L.  J.  542,  holding  that  sub-tenant  has  right  to  possession 
After  tenant  surrenders  to  landlord;  Terheyden  v.  Dallet,  38  Pittsb.  L.  J.  N.  S. 


5  L.R.A.  851)  L.  R.  A.  CASES  AS  AUTHORITIES.  988 

339;  Cuschner  v.  Westlake,  43  Wash.  695,  86  Pac.  948, — holding  under  lessee's 
interest  cannot  be  defeated  by  mesne  lessee's  surrender  of  his  estate  to  lessor. 

Cited  in  footnote  to  Hutsell  v.  Deposit  Bank,  39  L.  R.  A.  403,  which  holds 
that  right  of  distress  does  not  pass  to  assignee  of  rent  note. 

Cited  in  notes  (117  Am.  St.  Rep.  100)  on  sub-letting  of  leased  premises;  (7 
L.R.A.  (N.S.)  221)  on  effect  of  surrender  of  original  lease  on  rights  of  sub-lessee. 
Interest  as  badge  of  intention. 

Cited  in  New  Idea  Pattern  Co.  v.  Whitner,  215  Pa.  196,  64  Atl.  518,  holding 
preliminary  injunction  to  restrain  merchant  from  displaying  goods  of  other  than 
company  whose  agent  he  is,  properly  refused,  where  contract  does  not  prohibit 
sale  of  other's  goods,  and  it  being  to  best  interest  of  merchant  to  sell  goods 
of  others. 

5  L.  R.  A.  853,  DE  TURK  v.  COM.  129  Pa.  151,  15  Am.  St.  Rep.  705,   18  Atl. 

757. 
Eligibility   to    office. 

Cited  in  State  ex  rel.  Thompson  v.  McAllister,  38  W.  Va.  514,  24  L.  R.  A.  353,. 
18  S.  E.  770  (dissenting  opinion),  majority  holding  that  under  statute  requir- 
ing members  of  municipal  council  to  be  freeholders,  one  must  be  freeholder  at 
time  of  election;  Com.  ex  rel.  Sheridan  v.  Giles,  2  Lack.  Legal  News,  226,  hold- 
ing that  payment  of  borough  tax,  and  resignation  of  office,  after  service  of  quo 
warranto,  operated  to  remove  disqualification  of  councilman  as  to  subsequent 
appointment  to  fill  vacancy;  Com.  v.  Allen,  15  Pa.  Co.  Ct.  258,  holding  county 
attorney  entitled  to  make  suggestions  for  writs  of  quo  warranto  against  coun- 
ty officers;  Com.  v.  Murphey,  11  Pa.  Dist.  R.  361,  holding  member  of  legislature 
may  hold  office  of  town  clerk,  the  duties  of  the  latter  office  being  clerical  only; 
Com.  ex  rel.  Dist.  Atty.  v.  Miller,  30  Pa.  Co.  Ct.  612,  14  Pa.  Dist.  R.  668, 
holding  district  attorney  of  county  may  maintain  proceedings  of  quo  warranta 
to  question  title  to  office  of  councilman. 

Cited  in  footnotes  to  State  ex  rel.  Childs  v.  Sutton,  30  L.  R.  A.  630,  which 
holds  disability  of  member  of  legislature  to  hold  other  office  during  term  not 
affected  by  resignation;  Atty.  Gen.  ex  rel.  Moreland  v.  Detroit,  37  L.  R.  A.  211, 
which  holds  office  of  governor  incompatible  with  that  of  mayor  of  city:  State 
ex  rel.  Walker  v.  Bus,  33  L.  R.  A.  616,  which  holds  deputy  sheriff  not  state 
officer  within  prohibition  against  holding  county  or  municipal  office;  State  ex 
rel.  Taylor  v.  Sullivan,  11  L.  R.  A.  272,  which  holds  alien,  who  had  not  de- 
clared his  intention  to  become  a  citizen  at  time  of  election,  not  entitled  there- 
to, notwithstanding  declaration;  Steusoff  v.  State,  12  L.  R.  A.  364,  which  holds 
citizen  of  state  eligible  to  county  office  notwithstanding  removal  into  county 
so  recently  that  he  cannot  vote. 

Cited  in  notes    (13  L.  R.  A.  670)   on  incompatibility  of  offices;    (11  L.  R.  A. 
613)    on  holding  separate  offices;    (86  Am.  St.  Rep.  585,  586,  589)    on  loss  of 
one  office  by  accepting  another. 
Perfecting  title  by  resignation  of  one  of  two  offices. 

Cited  in  Com.  ex  rel.  Ryan  v.  Haeseler,  161  Pa.  96,  34  W.  N.  C.  340,  28  Atl. 
1014,  holding  that  person  chosen  school  director  and  also  treasurer  of  school 
board  may  elect  which  office  he  will  retain,  but  cannot  hold  both;  State  ex  rel. 
Kierskey  v.  Kelly,  80  Miss.  810,  31  So.  901,  holding  that  disqualification  for  office 
of  city  assessor  may  be  removed  by  resignation  from  office  of  postmaster;  Hoy 
v.  State,  168  Ind.  519,  81  N.  E.  509,  11  A.  &  E.  Ann.  Gas.  944,  holding  title 
to  office  of  councilman  may  be  perfected  by  resignation  before  commencement 
of  term  of  office  in  trust  company  having  business  dealings  with  city. 


989  L.  R.  A.  CASES  AS  AUTHORITIES.  [5  L.R.A.  856 

Cited  in  note  (124  Am.  St.  Rep.  219)  on  effect  of  election  where  successful 
candidate  is  ineligible. 

Distinguished  in  Bishop  v.  State,  149  Ind.  233,  39  L.  R.  A.  281,  footnote  p. 
278,  63  Am.  St.  Rep.  279,  48  N.  E.  1038,  holding  that  appointment  as  postmas- 
ter  of   one   filling   office   of   township    trustee   operates   as    surrender   of   latter 
office. 
Enforcement    of    constitutional    provisions. 

Cited  in  Com.  v.  Murphey,  25  Pa.  Co.  Ct.  638,  17  Montg.  Co.  L.  Rep.  175,  hold- 
ing constitutional  provision  that  "general  assembly  may  by  law  declare  what 
offices  are  incompatible"  not  applicable  to  provision  prohibiting  appointment 
of  state  senator  or  representative  to  civil  office  during  term;  Ex  parte  Cain, 
20  Okla.  127,  1  Okla.  Crim.  Rep.  8,  93  Pac.  974,  holding  provisions  in  consti- 
tution prohibiting  manufacture,  sale,  barter  or  giving  away  of  intoxicating 
liquors,  contrary  to  said  provisions  self -executory ;  Ex  parte  McN  aught,  23 
Okla.  292,  1  Okla.  Grim.  Rep.  266,  100  Pac.  27,  holding  provisions  in  constitution 
"that  no  person  shall  be  prosecuted  criminally  in  courts  of  record  otherwise  than 
by  presentment,  indictment  or  information,  and  that  no  person  shall  be  prose- 
cuted for  felony  by  information  without  preliminary  examination,  self-executing; 
Ex  parte  Show,  4  Okla.  Crim.  Rep.  429,  113  Pac.  1062,  holding  that  prohibitory 
constitutional  provisions  are  usually  self-executing,  even  though  legislation  with 
respect  thereto  may  be  desirable. 

Cited  in  note   (16  L.  R.  A.  282)   on  self-executing  constitutional  provisions. 

Distinguished  in  Wilkes-Barre  v.  Stewart,  10  Kulp,  29,  holding  that  rule 
that  legislation  necessary  to  make  constitutional  provision  operative,  if  ap- 
plicable to  matter  of  appeals  from  summary  convictions  by  mayor,  had  been 
complied  with. 

5  L.  R.  A.  855,  LOUISVILLE  &  N.  R.  CO.  v.  WILSEY,  11  Ky.  L.  Rep.  419. 
Excessive  verdict. 

Cited  in  Harvey  v.  Atlantic  Coast  Line  R.  Co.  153  N.  C.  585,  69  S.  E.  627, 
-to  the  point  that  verdict  of  $2,500  was  grossly  excessive  and  indicative  of 
prejudice,  where  passenger  was  wrongfully  ejected  and  had  to  walk  two  miles 
-to  depot. 

Cited  in  note  (26  L.R.A.  393)  on  power  of  appellate  court  over  excessive 
verdict. 

5  L.  R.  A.  856,  TALBOTT  v.  STEMMONS,  89  Ky.  222,  25  Am.  St.  Rep.  531,  12 

S.    W.    297. 
Contracts;     sufficiency    of    consideration. 

Cited  in  Stovall  v.  McCutchen,  107  Ky.  580,  47  L.  R.  A.  288,  92  Am.  St.  Rep. 
373,  54  S.  W.  969,  holding  mutual  promises  to  close  places  of  business  at  desig- 
nated hour  sufficient  to  sustain  agreement;  Harlan  v.  Harlan,  102  Iowa,  705, 
72  N.  W.  286,  holding  promise  to  care  for  third  person  sufficient  consideration 
for  promise  to  pay  for  services;  Hamer  v.  Sidway,  124  N.  Y.  547,  12  L.  R.  A. 
470,  21  Am.  St.  Rep.  693,  27  N.  E.  256,  holding  abstaining  from  liquor,  tobacco, 
swearing,  cards,  and  billiards,  sufficient  consideration  for  promise  to  pay  money; 
Central  University  v.  Cox,  136  Ky.  264,  124  S.  W.  299,  holding  recovery  may 
be  had  on  note  payable  in  event  of  uncertain  contingency  where  condition  has 
taken  place;  Bush  v.  Whitaker,  45  Misc.  78,  91  N.  Y.  Supp.  616,  holding  con- 
sideration not  inadequate  where  nephew  furnished  care  to  uncle  in  consideration 
of  promise  to  make  provision  in  will  for  stated  amount  therefor;  Street  v. 
Gait,  136  App.  Div.  726,  121  N.  Y.  Supp.  514,  holding  promise  of  vendor  that 
he  would  indemnify  vendee  against  loss  for  defective  goods  which  latter  had 


5  L.R.A.  856]  L.  R.  A.  CASES  AS  AUTHORITIES.  990- 

sold  to  another,  whereby  vendee  has  goods  returned  to  it  and  sale  lost,  based 
on  sufficient  consideration;  Buhler  v.  Trembly,  139  Mich.  572,  108  N.  W.  343, 
on  sufficiency  of  agreement  to  live  in  particular  house  as  consideration  for 
agreement  to  convey. 

Cited  in  footnote  to  Ballard  v.  Burton,  1G  L.  R.  A.  664,  which  holds  forbear- 
ance to  withdraw  money  from  bank  consideration  for  third  person  signing  cer- 
tificate of  deposit  as  surety. 

Cited  in  notes  (12  L.R.A.  468,  471)  on  consideration  essential  to  valid  con- 
tract; (6  Eng.  Rul.  Cas.  22)  on  what  may  constitute  consideration  for  contract. 

5  L.  R.  A.  858,  PENNY  v.  CROUL,  76  Mich.  471,  43  X.  W.  649. 

Report   of   subsequent   action  between   same   parties   to   recover   value  of   cer- 
tain bonds  in  87  Mich.  15,  13  L.  R.  A.  83,  49  N.  W.  311. 
Trusts;    statute    of    frauds. 

Cited  in  Eipper  v.  Benner,  113  Mich.  80,  71  N.  W.  511,  holding  statute  of 
frauds  not  applicable  to  trust  in  personal  property;  Rapley  v.  McKinney,  143' 
Mich.  513,  107  N.  W.  101,  holding  parol  agreement  by  vendee  of  purchaser  at 
mortgage  foreclosure  sale  to  convey  part  to  railroad  for  right  of  way  and  pay 
consideration  therefor  to  mortgagor,  void. 
Certainty  in  creation  of  trust. 

Cited  in  Caspari  v.  Cutcheon,  110  Mich.  90,  67  N.  W.  1093,  holding  bequest  of 
fund  to  trustees  to  invest  at  their  discretion,  and  pay  income  to  daughter,, 
and,  upon  her  death,  giving  fund  to  her  children,  or,  if  childless,  then  to  per- 
sons named,  not  void  for  uncertainty. 

Cited  in  footnote  to  People  ex  rel.  Atty.  Gen.  v.  Dashaway  Asso.  12  L.  R.  A. 
117,   which   holds   promotion   of   cause   of   temperance   too   vague   description   of" 
purpose   for  which  corporation   formed. 
Corporation    as    trustee. 

Cited  in  notes   (14  L.  R.  A.  70)   on  trustee  of  municipal  corporation  as  trus- 
tee for  charity;    (11   L.  R.  A.   715)    on  corporations  as  trustees;    (7   L.  R.  A.- 
766)    on  administration  of  public  charities  by  municipal  corporations. 
Devise    to    charitable    use. 

Cited  in  note    (6   L.  R.  A.   84)    on  what  constitute  public  charities. 
Rule   agrainst   perpetuities. 

Cited  in  notes  (11  L.R.A.  86)  on  rule  against  perpetuities  not  applicable  to> 
charities;  (49  Am.  St.  Rep.  127)  on  rule  against  perpetuities. 

5  L.  R.  A.  864,  RIPPE  v.  CHICAGO,  M.  &  ST.  P.  R.  CO.  42  Minn.  34,  43  N.  W.. 

652. 
Fences    to    railroad    right    of    -way. 

Cited  in  notes    (8  L.R.A.  136)    on  liability  of  railroad  for  death  or  injury 
to  cattle  by  failure  to  fence;    (27   L.R.A. (N.S.)    797)    on  duty  of  railroad  to 
fence  within  limits  of  city,  town,  or  village. 


L.  R  A.  CASES  AS  AUTHORITIES. 


OASES    IN"    6    L.    R    A. 


6  L.  R.  A.  33,  FERGUSON  v.  RAFFERTY,  128  Pa.  337,  18  Atl.  484. 
Parol    evidence    to    vary    written    instrument. 

Cited  in  Baum  v.  Lynn,  72  Miss.  939,  30  L.  R.  A.  443,  18  So.  428,  holding  re- 
lease embodied  in  conveyance  as  consideration  not  contradictable  by  parol,  and 
referring  approvingly  to  annotation  in  6  L.  R.  A.  33 ;  American  Harrow  Co.. 
v.  S \voope,  16  Pa.  Super.  Ct.  456,  holding  evidence  of  representations  as  to  con- 
tents, inducing  signing  of  contract  by  one  unable  to  read  English,  admissible 
to  vary  it;  Wilson  v.  Pritchett,  99  Md.  593,  58  Atl.  360,  holding  unauthorized' 
false  statements  of  agent  admissible. 

Cited  in  footnotes  to  Brook  v.  Latimer,  11  L.  R.  A.  805,  which  holds  parol 
evidence  that  note  given  as  receipt  for  advancement  to  maker  admissible;  Mc- 
Collum  v.  Boughton,  35  L.  R.  A.  480,  which  holds  parol  evidence  that  wife's 
deed  of  trust  of  legal  estate  is  security  for  husband  alone  on  note  signed  by~ 
him  and  others,  inadmissible;  Horn  v.  Hansen,  22  L.  R.  A.  617,  which  holds 
oral  evidence  inadmissible  to  contradict  unilateral  agreement  so  far  as  written. 

Cited  in  notes  (13  L.  R.  A.  622)  on  admissibility  of  parol  evidence  to  vary 
terms  of  written  instrument;  (17  L.  R.  A.  271,  274)  on  admissibility  of  paror 
evidence  to  vary3  add  to,  or  alter  written  contract;  (13  L.  R.  A.  54)  on  parol  evi- 
dence as  affecting  indorsement;  (6  L.  R.  A.  165)  on  parol  evidence  of  considera- 
tion; (6  L.R.A. (N.S.)  943)  on  parol  evidence  to  correct  misdescription  of  land 
in  will. 

Distinguished  in  Russell  v.  Glass  \Yorks,  3  Lack.  Legal  News,  189,  6  Pa.  Dist. 
R.  458,  holding  evidence  of  preceding  negotiations  inadmissible  to  vary  written 
contract. 

Criticized  in  Newman  v.  Baker,  10  App.  D.  C.  199,  holding  parol  evidence  of 
agreement  that  deed  should  take  effect  upon  subsequent  condition  inadmissible. 
—  To  identify  person  named  in. 

Cited  in  Carl  v.  State,  125  Ala.  102,  28  So.  505,  holding  parol  evidence  admissi- 
ble to  identify  person  as  beneficiary  in  will. 
To    supplement    deficiencies. 

Cited  in  Myers  v.  Taylor,  107  Tenn.  370,  64  S.  W.  719,  and  American  Contract 
Co.  v.  Bullen  Bridge  Co.  29  Or.  561,  46  Pac.  138,  holding,  where  writings  do  not 
contain  entire  agreement,  parol  evidence  admissible. 

Cited  in  footnote  to  Colgate  v.  Latta,  26  L.  R,  A.  321,  which  upholds  right  to- 
show  order  by  agent  for  shipment  of  goods  to  have  been  for  purpose  not  ex- 
pressed in  instrument. 

Cited  in  note  (6  L.  R.  A.  324)  on  parol  and  extrinsic  evidence  to  aid  con- 
struction. 

991 


6  L.R.A.  33]  L.  R.  A.  CASES  AS  AUTHORITIES.  992 

To     prove     contemporaneous     collateral     agreement. 

Cited  in  Barnett  v.  Pratt,  37  Neb.  352,  55  N.  W.  1050,  holding  provable  by 
parol  promise  to  assume  debt,  on  faith  of  which  written  agreement  was  executed: 
Hines  v.  Willcox,  96  Tenn.  153,  34  L.  R,  A.  827,  54  Am.  St.  Rep.  823,  33  S.  W. 
914,  holding  landlord's  agreement  to  repair,  as  inducement  to  make  written  lease, 
provable  by  parol ;  Davis  v.  Reyner,  12  Montg.  Co.  L.  Rep.  53,  holding  evidence 
of  contemporaneous  parol  promise  not  to  enter  judgment  admissible  to  vary 
judgment  note;  Smith  v.  Harvey,  4  Pa.  Super.  Ct.  382,  40  W.  N.  C.  232,  holding 
evidence  of  contemporaneous  parol  agreement  as  to  water  supply,  inducing  its 
execution,  admissible  to  vary  lease;  Smith  v.  Kugler,  14  Montg.  Co.  L.  Rep.  84, 
raising,  without  deciding,  how  far  a  written,  sealed  lease  may  be  modified  by  con- 
temporaneous parol  agreement;  Eugene  Dietzgen  Co.  v.  Kokosky,  113  La.  456, 
66  L.R.A.  506,  37  So.  24,  holding  evidence  of  parol  agreement  admissible  to 
show  source  of  written  agreement;  Southard  v.  Arkansas  Valley  &  W.  R.  Co. 
24  Okla.  420,  103  Pac.  750,  holding  parol  evidence  inadmissible  to  show  con- 
temporaneous condition  or  consideration  except  upon  allegations  of  fraud  or 
mistake  in  action  on  written  contract;  Farrell  v.  Coatesville,  214  Pa.  297,  63 
Atl.  742,  holding  evidence  of  parol  qualification  with  agent  if  limited  authority 
inadmissible  to  vary  written  instrument  between  contractor  and  principal;  Per- 
kiomen  R.  Co.  v.  Bromer,  217  Pa.  268,  66  Atl.  359,  Affirming  30  Pa.  Co.  Ct. 
587,  21  Montg.  Co.  L.  Rep.  206,  holding  parol  promise  to  build  a  bridge,  in  con- 
sideration of  deed  to  right  of  way  admissible  though  not  provided  for  in  deed; 
Harrison  v.  Focht,  18  Pa.  Dist.  R.  14,  holding  contemporaneous  oral  agreement 
to  keep  leased  premises  in  repair  admissible  as  a  defense  in  action  on  lease  for 
rent;  Continental  Title  &  T.  Co.  v.  Harvey,  11  Pa.  Dist.  R.  624,  holding  an 
executed  written  release  from  liability  for  breach  of  a  contract  cannot  be  de- 
feated by  introduction  of  a  contemporaneous  oral  condition  where  both  parties 
were  dealing  at  arms  length  free  from  mistake  or  fraud. 

Distinguished  in  Continental  Title  &  T.  Co.  v.  Harvey,  27  Pa.  Co.  Ct.  584,  hold- 
ing, in  absence  of  fraud  or  mistake,  evidence  of  contemporaneous  oral  agreement 
whereby  written  release  of  damages  was  in  certain  event  to  become  inoperative, 
inadmissible. 
Nature    of    proof    required. 

Cited  in  Streator  v.  Paxton,  201  Pa.  145,  50  Atl.  926,  holding  clear,  precise,  in- 
dubitable proof  of  contemporaneous  parol  agreement  required  to  vary  written 
instrument;  Yeager  v.  Cassidy,  12  Pa.  Super.  Ct.  235,  16  Lane.  L.  Rev.  308, 
holding  evidence  of  several  witnesses  as  to  parol  reservation  of  crop  from  written 
agreement  of  sale  properly  submitted  to  jury;  Todd  v.  Braught,  6  Pa.  Dist.  R. 
602,  holding  preponderance  of  parol  evidence  necessary  to  vary  written  instru- 
ment. 
Replevin;  rig-lit  to  maintain. 

Cited  in  Ferguson  v.  Lauterstein,  160  Pa.  432,  34  W.  N.  C.  320,  28  Atl.  852, 
holding  lessor  may  replevin  furniture  from  purchaser  under  judgment  against 
lessee;  Brown  v.  Ravenscraft,  88  Md.  225,  44  Atl.  170,  holding  one  cotenant  may 
maintain  replevin  if  nonjoinder  of  other  not  pleaded  in  abatement. 

6  L.  R.  A.  48,  BROWNFIELD  v.  JOHNSON,  128  Pa.  254,  18  Atl.  543. 
Sufficiency   of  delivery   of  goods. 

Cited  in  notes  (26  L.R.A.(N.S.)  24,  25,  56,  65)  on  sufficiency  of  selection  or 
designation  of  goods  sold  out  of  larger  lot;  (23  Eng.  Rul.  Cas.  256)  on  neces- 
sity of  ascertainment  of  goods  sold  to  passing  of  title. 

Distinguished   in  Staake   v.  Pennsylvania   R.   Co.   231   Pa.  470,   80   Atl.  1102, 


993  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  52 

holding  that  no  title  to  property  passes  upon  owner  giving  order  on  railroad 
company  to  deliver  part  of  quantity  of  iron  ore  held  in  storage,  which  order 
is  countermanded  before  such  quantity  ia  separated  from  bulk. 

6  L.  R.  A.  50,  HJXTRAGER  v.  MAHONY,  78  Iowa,  537,  43  N.  W.  522. 
Redemption  from  tax  Male. 

Cited  in  Bray  &  C.  Land  Co.  v.  Newman,  92  Wis.  274,  65  N.  W.  494,  holding 
land  owner  paying  taxes  included  in  treasurer's  statement  not  affected  by  sale  for 
taxes  negligently  omitted;  Burchardt  v.  Scofield,  141  Iowa,  341,  133  Am.  St. 
Rep.  173,  117  N.  W.  1061,  holding  taxpayer  entitled  to  equitable  relief  where 
his  honest  and  timely  efforts  to  redeem  are  frustrated  by  misinformation  from 
treasurer;  Squire  v.  McCarthy,  77  Xeb.  435,  112  N.  W.  327,  holding  acceptance 
by  county  treasurer  of  back  tax  and  interest  and  issuance  of  tax  receipt  without 
notice  to  taxpayer  of  pending  tax  sale  is  a  satisfaction  of  decree  entitling  him 
to  recover  his  land. 

Cited  in  notes  (9  L.  R.  A.  768)  on  redemption  from  tax  sale;   (20  L.  R.  A.  489) 
on  validity  of  tax  sales  where  nonpayment  is  due  to  mistake  or  negligence  of  tax 
officers. 
Appeal    from    executed    judgment. 

Cited  in  Weaver  v.  Stacy,  93  Iowa,  688,  62  N.  W.  22,  holding  election  to  file 
separate  petitions  against  defendants  waives  error  in  striking  out  for  misjoinder; 
93  Iowa,  691,  62  X.  W.  24,  holding  payment  to  redeem  from  sheriff's  sale  waives 
appeal,  so  far  as  affecting  estate  redeemed;  State  v.  Lambert,  52  W.  Va.  250, 
43  S.  E.  176,  dismissing,  after  election,  writ  of  error  to  judgment  of  mandamus 
commanding  placing  of  candidate's  name  on  ballot;  Loesche  v.  Goerdt,  123  Iowa, 
57,  98  N.  W.  571,  holding  resistance  of  mandamus  action  to  compel  school  town- 
ship secretary  to  certify  tax  will  not  prevent  imputation  of  laches  to  taxpayers 
seeking  to  enjoin  its  collection. 
Appeal  from  unfavorable  part  only  of  judgment. 

Cited  in  note  (29  L.R.A.  (X.S. )  28)  on  right  to  appeal  from  unfavorable 
while  accepting  favorable  part  of  decree,  judgment  or  order. 

6  L.  R,  A.  52,  HARDIN  v.  IOWA  R.  &  COXSTR.  CO.  78  Iowa,  726,  43  X.  W.  543. 
Attorneys;  disputed  verbal  stipulation. 

Cited  in  Council  Bluffs  Loan  &  T.  Co.  v.  Jennings,  81  Iowa,  475,  46  X.  W.  1006, 
holding  disputed  verbal  agreement  to  postpone  trial  not  provable  by  testimony  of 
adverse  party  or  attorney. 
Corporations;    directors'    meetings. 

Cited  in  Singer  v.  Salt  Lake  Copper  Mfg.  Co.  17  Utah,  156,  70  Am.  St.  Rep. 
773,  53  Pac.  1024,  holding  meetings  of  duly  constituted  board  of  directors  pre- 
sumptively regular;  Moore  v.  First  Ruthven  Circuit  M.  E.  Church,  117  Iowa,  35, 
90  X.  W.  492,  holding  person  seeking  to  show  agreement  with  board  of  church 
trustees  need  not  show  regularity  of  meeting. 
Corporation's  liability  for  unauthorized  acts. 

Cited  in  Edwards  v.  Carson  Water  Co.  21  Xev.  486,  34  Pac.  381,  holding  cor- 
poration not  liable  OB  unauthorized  note. 

Distinguished  in  Gribble  v.  Columbus  Brewing  Co.   100  Cal.  74,  34  Pac.  527, 
holding  corporation  estopped  from  questioning  president's  authority  to  insert  in 
note  provision  for  attorney's  fees. 
L.R.A.  Au.  Vol.  L— 63. 


6  L.R.A.  54]  L.  E.  A.  CASES  AS  AUTHORITIES.  994 

6  L.  R.  A.  54,  PORT  HURON  v.  JENKIXSON,  77  Mich.  414,  18  Am.  St.  Rep.  409, 

43  N.  W.  923. 
Vnreasoiiable    OP    impossible    requirements. 

Cited  in  Benton  Harbor  v.  St.  Joseph  &  B.  H.  Street  R.  Co.  102  Mich.  391,  26 
L.  R,  A.  246,  47  Am.  St.  Rep.  553,  60  N.  W.  758,  holding  mandamus  will  not 
lie  to  compel  insolvent  street  railway  company  to  pave  between  tracks;  Auditor 
General  v.  Hoffman,  129  Mich.  542,  89  N.  W.  348,  holding  ordinance  imposing  tax 
on  lot  owner  for  cost  of  walk  built  by  city,  upon  his  failure  to  do  so  within  five 
days  after  notice,  void. 

Cited  in  note    (78  Am.   St.  Rep.  270)    on  acts  which  legislature  may  declare 
criminal. 
Expense    of    local    improvements. 

Cited  in  note  (28  L.  R.  A.  499)  on  charging  expense  of  grading  for  sidewalk  on 
abutting  owner. 

6  L.  R.  A.  56,  LODI  TWP.  v.  STATE,  51  N.  J.  L.  402,  18  Atl.  749. 
Constitutional    lavr;     class    legislation. 

Cited  in  State,  Alexander,  Prosecutor,  v.  Elizabeth,  56  N.  J.  L.  80,  23  L.  R.  A. 
529,  28  Atl.  51,  holding  act  regulating  race-courses,  distinguishing  between  those 
established  prior  and  subsequent  to  certain  date,  unconstitutional;  Weaver  v. 
Davidson  County,  104  Tenn.  329,  59  S.  W.  1105,  holding  act  providing  for  salaries 
of  county  officers,  not  operating  uniformly,  unconstitutional;  Darcy  v.  San  Jose1, 
104  Cal.  647,  38  Pac.  500,  holding  arbitrary  classification  making  special  act 
applicable  to  one  city  unconstitutional;  Wagner  v.  Milwaukee  County,  112  Wis. 
608,  88  N.  W.  577,  holding  act  providing  for  construction  of  viaduct,  applicable 
only  to  one  county,  unconstitutional;  Edmonds  v.  Herbrandson,  2  N.  D.  274,  14 
L.  R.  A.  727,  50  N.  W.  970,  holding  act  regulating  relocation  of  county-seats,  ex- 
cepting counties  having  buildings  then  worth  more  than  $35,000,  unconstitu- 
tional; Longview  v.  Crawfordsville,  164  Ind.  122,  68  L.R.A.  625,  73  N.  E.  78, 
3  A.  &  E.  Ann.  Cas.  496,  holding  an  act  special,  which  gave  cities  of  certain 
population  specified  privileges  not  warranted  by  any  reasons  inhering  in  the 
classification;  Kraus  v.  Lehman,  170  Ind.  420,  83  N.  E.  714,  15  A.  &  E.  Ann. 
Cas.  849,  holding  an  act  prohibiting  counties  of  specified  population  from  con- 
tracting for  construction  of  courthouse  unless  on  petition  of  freeholders,  class 
legislation  and  invalid;  Angell  v.  Cass  County,  11  N.  D.  270,  91  X.  W.  72. 
holding  a  legislative  division  of  counties  for  purpose  of  collecting  taxes  on 
designated  classes  of  real  estate,  unconstitutional;  Chicago,  M.  &  St.  P.  R.  Co. 
v.  Westby,  —  L.R.A.  (N.S.)  — ,  102  C.  C.  A.  65,  178  Fed.  625,  on  necessity 
that  class  includes  all  who  indistinguishably  belong  thereto. 

Cited  in  footnotes  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes  not  applying  to  all  parts  of  state  unconstitutional  ; 
Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating  sheriff's 
fees  for  particular  county,  local. 

Cited  in  note  (7  L.  R.  A.  195)  on  constitutionality  of  classification  of  cities 
by  statute. 

Distinguished  in  State,  Miles,  Prosecutor,  v.  Bergen  County,  52  N.  J.  L.  304, 
19  Atl.  718,  holding  act  excepting  roads  under  county  road  board  not  special. 

6  L.  R.  A.  57,  STATE  ex  rel.  STOCKTON  v.  SOMERS'  POINT,  52  N.  J.  L.  32,  18 

Atl.  694. 
Constitutional    la\\  :    special    or    class    legislation. 

Cited  in  State,  Alexander,  Prosecutor,  v.  Elizabeth.,  56  N.  J.  L.  80,  23  L.  R.  A. 


995  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  59 

529,  footnote,  p.  525,  28  Atl.  51,  holding  act  distinguishing  between  race-courses 
established  prior  and  subsequent  to  certain  date  unconstitutional;  State,  Bowker, 
Prosecutrix,  v.  Wright,  54  N.  J.  L.  132,  23  Atl.  116,  holding  act  authorizing  lay- 
ing out  of  streets  on  ocean  front  of  cities  bordering  on  ocean,  constitutional; 
Wagner  v.  Milwaukee  County,  112  Wis.  608,  88  N.  W.  577,  holding  act  pro- 
viding for  construction  of  viaduct,  applicable  to  one  county  only,  unconstitu- 
tional; Edmonds  v.  Herbrandson,  2  N.  D.  275,  14  L.  R.  A.  727,  50  N.  W.  970r 
holding  act  regulating  relocation  of  county-seats,  excepting  counties  having  build- 
ings then  worth  mor*e  than  $35,000,  unconstitutional;  Eckerson  v.  Des  Moines, 
137  Iowa,  471,  115  N.  W.  177,  on  what  constitutes  local  and  special  legislation. 

Cited  in  footnotes  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes  not  applying  to  all  parts  of  state  unconstitutional; 
Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating  sheriff's 
fees  for  particular  county  local;  Sutton  v.  State,  33  L.  R.  A.  589,  which  holds 
classification  of  counties  according  to  previous  census,  without  regard  to  actual 
population,  void. 

Cited  in  note   (7  L.  R.  A.  195)    on  constitutionality  of  classification  of  cities 
by  statute. 
Subject    of   act    must    be    expressed    in    title. 

Cited  in  Cooper  v.  Springer,  65  N.  J.  L.  161,  46  Atl.  589,  holding  title  "Act 
Requiring  Payment  of  Debts  of  Certain  Illegal  Borough  Governments"  cannot 
support  creation  of  boroughs. 

Effect  of  act  providing-  for  municipal  government  in  places  of  temporary 
resort. 

Cited  in  State,  Green,  Prosecutor,  v.  Clarke,  56  N.  J.  L.  69,  27  Atl.  924,  holding 
act  providing  for  borough   government  in  places  of  temporary  resort  does  not 
repeal  prior  legislation  by  implication. 
Illegal    borough    governments. 

Cited  in  Cooper  v.  Springer,  65  N.  J.  L.  595,  48  Atl.  605,  holding  legislature 
may  compel  payment  of  debts  by  illegally  organized  borough. 

6  L.  R.  A.  58,  HUBBARD  v.  HUBBARD,  74  Wis.  650,  43  N.  W.  655. 
Divorce;  adultery  of  plaintiff  or  other  recrimination  as  defense. 

Followed  in  Decker  v.  Decker,  95  111.  App.  655,  holding  adultery  of  complainant 
defense  to  action  for  divorce  for  cruelty  and  impotency. 

Cited  in  Day  v.  Day,  71  Kan.  390,  80  Pac.  974,  6  A.  &  E.  Ann.  Cas.  169, 
holding  courts  may  in  their  discretion  refuse  to  grant  divorce  where  both  parties 
have  been  guilty  of  matrimonial  offenses  both  of  which  are  statutory  grounds 
for  divorce  though  of  a  different  character. 

Cited  in  footnote  to  Decker  v.  Decker,  55  L.  R.  A.  697,  which  authorizes  setting 
up  adultery  of  plaintiff  suing  for  divorce  for  cruelty,  in  answer  instead  of  in 
cross-bill. 

Cited  in  note  (86  Am.  St.  Rep.  334,  338)  on  recrimination  as  defense  in 
divorce  proceeding. 

6  L.  R.  A.  59,  BOGIE  v.  WAUPUN,  75  Wis.  1,  43  X.  W.  667. 
Liability   for   defect    in    footpath    not    part    of   hightvay. 

Cited  in  Curtiss  v.  Bovina,  138  Wis.  663,  120  N.  W.  401,  holding  town  not 
liable  for  injury  caused  by  defect  in  bridge  not  part  of  highway  and  built  by 
private  individuals. 

Cited  in  footnote  to  State  ex  rel.  James  v.  Kent  County,  33  L.  R.  A.  291,  which 


6  L.R.A.  59}  L.  R.  A.  CASES  AS  AUTHORITIES.  996 

denies  liability  of  county  commissioner  for  nonrepair  of  footpath  frequently  used 
by  public  to  avoid  going  around  bend  in  highway. 

Cited  in  note  (13  L.R.A.  (N.S.)  1241)  on  liability  of  townships  for  defects 
in  highway. 

•fl  L.  R,  A.  61,  WILTON  v.  MAYBERRY,  75  Wis.  191,  17  Am.  St.  Rep.  193,  43 
N.  W.  901. 

Equitable   subrosration   to   rights   of   prior   lienor. 

Cited  in  Stewart  v.  Stewart,  90  Wis.  521,  48  Am.  St.  Rep.  949,  63  N".  W.  886, 
holding  grantees  under  void  deed  discharging  mortgage  in  good  faith  subrogated 
to  rights  of  mortgagee;  Union  Mortg.  Bkg.  &  T.  Co.  v.  Peters,  72  Miss.  1070,  30 
L.  R.  A.  833,  18  So.  497,  and  Bank  of  Ipswich  v.  Brock,  13  S.  D.  417,  83  N.  W. 
436,  holding  lender  of  money  on  third  mortgage  to  pay  first  mortgage,  upon  bor- 
rower's promise  to  satisfy  second,  equitable  assignee  of  first;  Home  Sav.  Bank  v. 
Bierstadt,  168  111.  625,  61  Am.  St.  Rep.  146,  48  N.  E.  161,  Affirming  68  HI.  App. 
661,  holding  person  advancing  money  to  pay  lien  on  promise  of  first  mortgagee 
equitably  subrogated  as  against  intermediate  mortgagee;  Baker  v.  Baker,  2  S.  D. 
267,  39  Am.  St.  Rep.  776,  49  N.  W.  1064,  holding  lender  of  money,  upon  debtor's 
failure  to  execute  promised  new  mortgage,  equitable  assignee  of  discharged  mort- 
gage; Cumberland  Bldg.  &  L.  Asso.  v.  Sparks,  49  C.  C.  A.  514,  111  Fed.  652, 
holding  one  loaning  money  on  defective  mortgage  to  discharge  prior  mortgage 
equitably  subrogated  as  against  subsequent  purchaser;  Re  Lee,  105  C.  C.  A. 
117,  182  Fed.  583,  holding  that  person  loaning  money  to  pay  existing  encum- 
brances with  agreement  for  first  lien  may  be  subrogated  to  encumbrancer's 
rights  as  against  trustee  in  bankruptcy  and  subsequently  acquired  interests  with 
knowledge  of  circumstances;  Gordon  v.  Stewart,  4  Neb.  (Unof.)  864,  96  N.  W. 
624,  holding  the  lender  of  money  to  pay  off  valid  lien  taking  mortgage  in  good 
faith,  is  not  a  volunteer  and  is  entitled  in  equity  to  be  subrogated  to  rights 
of  prior  lienor  though  his  mortgage  is  invalid;  Charmley  v.  Charmley,  125  Wis. 
304,  110  Am.  St.  Rep.  827,  103  N.  W.  1106,  holding  a  widow  paying  mortgage 
to  protect  her  homestead  interest  with  intent  to  be  repaid  therefor  is  subro- 
gated to  right  of  mortgagee  to  extent  of  foreclosure  or  may  trace  proceeds  of 
the  property,  but  not  entitled  to  enforce  claim  against  assets  of  husband's 
general  estate. 

Cited  in  footnotes  to  Dorrah  v.  Hill,  32  L.  R.  A.  631,  which  sustains  right  of 
one  loaning  money  on  invalid  deed  of  trust  to  be  subrogated  to  prior  valid  deed 
paid  off  with  money  loaned;  Meeker  v.  Larson,  57  L.  R.  A.  901,  which  denies  right 
•of  one  furnishing  money  to  discharge  mortgage,  to  be  subrogated  to  mortgagee's 
Tights;  Campbell  v.  Foster  Home  Asso.  26  L.  R.  A.  117,  which  denies  subroga- 
tion to  prior  mortgage  paid  without  mortgagor's  consent  out  of  proceeds  of  in- 
-valid  mortgage. 

Cited  in  notes  (13  L.R.A.  619)  on  doctrine  of  subrogation;  (99  Am.  St.  Rep. 
501,  521)  on  right  of  subrogation. 

«  L.  R.  A.  62,  LESLIE  v.  BONTE,  130  111.  498,  22  N.  E.  594. 
"When   judgment  a   bar. 

Oited  in  Stanton  v.  Kenrick,  135  Ind.  392,  35  N.  E.  19,  holding  former  suit 
between  same  parties  a  bar,  because  all  issues  might  have  been  decided;  Kessler 
v.  Armstrong  Cork  Co.  85  C.  C.  A.  642,  158  Fed.  748,  holding  a  judgment  in 
an  action  between  indorsee  and  drawee  in  favor  of  drawee  is  not  conclusive 
against  payee  as  a  discharge  of  the  bill  in  favor  of  drawer  where  neither  of  the 
two  last  mentioned  persona  were  privies  to  such  judgment;  Illinois  Title  &  T. 


997  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  65 

Co.  v.  McCoy,  86  Kan.  594,  121  Pac.  1090,  holding  that  judgment  on  notes  in 
state  where  made  is  conclusive  here  as  to  validity  of  notes. 

Cited  in  footnote  to  Allred  v.  Smith,  65  L.R.A.  924,  which  holds  judgment  in 
action  quasi  in  rem  binding  on  the  parties  only. 
Merger    of    cause    of    action    in    judgment. 

Cited  in  Jocelyn  v.  White,  201  111.  30,  66  N.  E.  327,  holding  judgment  taken  on 
interest  coupon  cannot  be  included  in  amount  of  foreclosure  judgment,  unless 
declared  on. 

6  L.  R.  A.  65,  UNITED  STATES  L.  INS.  CO.  v.  KIELGAST,  129  111.  557,  22 

N.  E.  467. 

Second  appeal  in  Gooding  v.  United  States  L.  Ins.  Co.  46  111.  App.  308. 
.Admissibility   of   coroner's   inquisition. 

Cited  in  Overtoom  v.  Chicago  &  E.  I.  R.  Co.  80  111.  App.  522,  holding  steno- 
graphic notes  of  testimony  at  coroner's  inquest  inadmissible  in  action  for  death 
produced  by  negligence;  Overtoom  v.  Chicago  &  E.  I.  R.  Co.  181  111.  329,  54 
X.  E.  898,  holding  transcript  of  stenographer's  notes,  taken  on  coroner's  inquest, 
inadmissible  in  action  for  negligent  killing  of  intestate;  Chicago  City  R.  Co.  v. 
McLaughlin,  146  111.  361,  34  X.  E.  796,  holding  evidence  taken  before  coroner  in- 
admissible to  show  that  it  does  not  contradict  one's  own  witness;  Pyle  v.  Pyle,  158 
111.  300,  41  X.  E.  999,  holding  verdict  of  coroner's  jury  admissible  to  show  suicide 
of  testator;  Supreme  Lodge  K.  of  H.  v.  Fletcher,  78  Miss.  388,  29  So.  523,  hold- 
ing finding  of  coroner's  inquest  admissible  on  question  whether  insured  was  sui- 
cide; Met/radt  v.  Modern  Brotherhood,  112  Iowa,  526,  84  N.  W.  498,  holding 
verdict  of  coroner's  jury  admissible,  but  not  conclusive,  on  question  of  suicide; 
Grand  Lodge  I.  O.  M.  A.  v.  Wieting,  168  111.  412,  61  Am.  St.  Rep.  123,  48  N.  E. 
59,  Affirming  68  111.  App.  130,  holding  findings  of  coroner's  inquisition  on  body 
of  insured  admissible;  Supreme  Court  of  Honor  v.  Barker,  96  111.  App.  498, 
holding  instruction  to  jury  relating  to  coroner's  inquest  not  in  proper  form; 
Lake  Shore  &  M.  S.  R.  Co.  v.  Taylor,  46  111.  App.  509,  holding  coroner's  inquisi- 
tion, but  not  depositions  taken  at  inquest,  admissible  in  action  for  negligently 
causing  death:  National  Woodenware  &  Cooperage  Co.  v.  Smith,  108  111.  App.  480, 
holding  finding  of  coroner's  inquest  that  death  due  to  deceased's  carelessness  ad- 
missible in  administrator's  negligence  action;  Fein  v.  Covenant  Mut.  Ben.  Asso. 
60  111.  App.  276,  holding  verdict  of  coroner's  jury  admissible  in  action  on  life 
policy;  Variety  Mfg.  Co.  v.  Landaker,  129  111.  App.  634,  on  competency  of 
coroner's  verdict  as  evidence  of  facts  included  therein;  Chicago  v.  Cohen,  139 
111.  App.  246,  holding  coroner's  verdict  admissible  as  a  whole  though  containing 
statements  of  facts  not  within  jurisdiction  of  such  a  jury  if  submitted  under 
proper  instructions;  Wilson  v.  Chicago  City  R.  Co.  154  111.  App.  636,  holding 
that  verdict  of  coroner's  jury  is  admissible  in  evidence  in  action  for  wrongful 
death;  Craiger  v.  Modern  Woodmen,  40  Ind.  App.  285,  80  X.  E.  429  (dissenting 
opinion),  on  admissibility  of  coroner's  inquisition  and  inadmissibility  of  deposi- 
tions taken  therein;  Mittelstadt  v.  Woodmen,  143  Iowa.  189,  136  Am.  St.  Rep. 
765,  121  N.  W.  803,  holding  that  coroner's  verdict  that  person  insured  committed 
suicide  is  admissible  as  prima  facie  evidence  of  such  fact  in  action  on  policy. 

Cited  in  footnote  to  State  v.  Coleman,  69  L.R.A.  381,  which  holds  reading  of 
coroner's  verdict  by  prosecuting  attorney  in  propounding  question  to  witness 
not  ground  for  reversal  in  absence  of  exception  merely  because  stated  that  the 
homicide  was  unjustifiable. 

Cited  in  notes  (21  L.R.A.  425)  on  right  to  impeach  one's  own  witness;  (68 
L.R.A.  290,  292,  294,  295,  296)  on  admissibility  of  finding  of  coroner  to  show 
cause  of  death;  (95  Am.  St.  Rep.  764)  on  coroner's  inquest  as  evidence;  (13T 


6  L.R.A.  65]  L.  R.  A.  CASES  AS  AUTHORITIES.  998 

Am.  St.  Rep.  726)  on  proof  of  death  in  cases  of  accident  and  life  insurance; 
(11  Eng.  Rul.  Cas.  164)  on  discretion  of  court  as  to  permitting  cross-examination 
of  one's  own  witness. 

Distinguished  in  Palenzke  v.  Bruning,  98  111.  App.  648,  holding  coroner's  in- 
quest not  judicial  proceeding  so  as  to  protect  him  from  action  for  mutilating 
body;  Colquit  v.  State,  107  Tenn.  383,  64  S.  W.  713,  holding  verdict  of  coroner's 
jury  inadmissible  in  trial  for  murder;  Knights  Templars  &  M.  Life  Indemnity 
Co.  v.  Crayton,  209  111.  563,  70  N.  E.  1066,  holding  depositions  taken  at  coroner's 
inquest  inadmissible  to  show  cause  of  insured's  death. 

Disapproved  in  effect  in  Olwell  v.  Milwaukee  Street  R.  Co.  92  Wis.  334,  66 
N.  W.  362,  expressing  opinion  that  record  of  coroner's  inquest  on  body  of  child 
cannot  be  used  in  action  for  negligently  causing  its  death;  Wasey  v.  Travelers' 
Ins.  Co.  126  Mich.  127,  85  N.  W.  459,  holding  verdict  of  coroner's  jury  not  evi- 
dence to  show  insured  a  suicide;  Cox  v.  Royal  Tribe  of  Joseph,  42  Or.  370,  60 
L.  R,  A.  624,  footnote,  p.  620,  95  Am.  St.  Rep.  752,  71  Pac.  73,  which  holds  ver- 
dict of  coroner's  jury  inadmissible  to  prove  facts  found;  Chambers  v.  Modern 
Woodmen  of  America,  18  S.  D.  177,  99  N.  W.  1107,  holding  that  verdict  of 
coroner's  jury  that  insured  committed  suicide  is  inadmissible  as  evidence  against 
the  beneficiary  on  an  issue  of  suicide  in  action  on  benefit  certificate;  ^-Etna  L. 
Ins.  Co.  v.  Milward,  118  Ky.  728,  68  L.R.A.  297,  82  S.  W.  364,  4  A.  &  E.  Ann. 
Cas.  1092,  holding  coroner's  verdict  inadmissible  on  the  issue  of  death  in  an 
action  on  an  accident  policy;  Queatham  v.  Modern  Woodmen,  148  Mo.  App. 
48,  127  S.  W.  651;  Walden  v.  Bankers'  Life  Asso.  89  Neb.  552,  131  N.  W.  962,— 
holding  verdict  of  coroner's  jury  that  insured  committed  suicide  incompetent  in 
action  on  policy. 
As  effected  by  seal  and  signatures  ol  coroner. 

Followed  in  Stollery  v.  Cicero  &  P.  Street  R.  Co.  243  111.  295,  90  N".  E.  709, 
Affirming  148  111.  App.  503,  holding  coroner's  jury's  verdict  admissible  in  action 
for  negligent  death,  showing  how  death  occurred  though  name  and  seal  of 
coroner  was  attached  thereto. 

6  L.  R.  A.  69,  LOUISVILLE  WATER  CO  v.  COM.  89  Ky.  244,  12  S.  W.  300. 

Report  of  second  appeal  in  94  Ky.  47,  21  S.  W.  246. 
Action    to    collect    taxes. 

Cited  in  State  v.  Baltimore  &  O.  R.  Co.  41  W.  Va.  91,  23  S.  E.  677,  holding 
action  to  recover  taxes  against  railroad  not  maintainable  without  statutory  au- 
thority; Hanson  County  v.  Gray,  12  S.  D.  125,  76  Am.  St.  Rep.  591,  80  N.  W. 
175,  holding  taxes  on  personal  property  can  be  collected  by  distress  and  sale,  but 
not  by  action;  Central  R.  &  Bridge  Co.  v.  Com.  106  Ky.  330,  49  S.  W.  456,  holding 
state  can  maintain  action  to  collect  franchise  taxes  under  statute;  Chicago,  St. 
L.  &  N.  0.  R.  Co.  v.  Com.  115  Ky.  281,  72  S.  W.  1119,  holding  an  act  providing 
for  recovery  by  state  of  taxes  not  collectable  by  ordinary  restraint  and  sale  to 
apply  to  railroad  and  other  public  service  property;  Covington  v.  Pullman  Co. 
121  Ky.  225,  89  S.  W.  116,  holding  a  taxpayer  seeking  injunction  against  col- 
lection of  a  tax  may  be  required  by  the  court  under  prayer  of  counterclaim, 
to  pay  the  taxes  into  court;  Illinois  C.  R.  Co.  v.  Com.  128  Ky.  273,  108  S.  W. 
245,  as  a  decision  which  caused  legislature  to  pass  an  act  changing  the  rule 
laid  down  and  authorizing  action  to  collect  taxes;  Preston  v.  Sturgis  Mill.  Co. 
32  L.R.A.(N.S.)  1031,  105  C.  C.  A.  293,  183  Fed.  14,  holding  that  court  cannot, 
in  absence  of  legislative  authority  collect  tax  levied  against  taxpayer. 

Cited  in  footnote  to  Ma  rye  v.  Diggs,  51  L.  R.  A.  902,  which  denies  jurisdiction 
;in  equity  of  suit  for  collection  of  taxes. 

Cited  in  note   (60  L.  R.  A.  855)   on  taxation  of  municipal  waterworks. 


999  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  73 

Overruled  in  part  in  Lexington  v.  Wilson,  118  Ky.  225,  80  S.  W.  811,  holding 
city  may  maintain  an  action  as  for  debt  for  collection  of  license  tax  where 
ordinance  imposing  such  tax  provides  no  adequate  procedure  for  collection. 

6  L.  R.  A.  71,  MILLER  v.  ROACH,  150  Mass.  140,  22  N.  E.  634. 
\Vlmt    fa    corporation    note. 

Cited  in  Reeve  v.  First  Nat.  Bank,  54  X.  J.  L.  211,  16  L.  R.  A.  145,  footnote, 
p.  143,  33  Am.  St.  Rep.  675,  23  Atl.  853,  holding  note  signed  with  name  of  cor- 
poration by  its  president,  corporation  paper;  Gleason  v.  Sanitary  Milk  Supply 
Co.  93  Me.  548,  74  Am.  St.  Rep.  370,  45  Atl.  825,  holding  note  beginning  "we 
promise  to  pay,"  and  signed  with  name  of  company  and  name  of  treasurer, 
several  note  of  corporation  and  treasurer;  Aungst  v.  Creque,  72  Ohio  St.  558, 
74  X.  E.  1073,  holding  note  signed  by  firm  name  followed  by  names  of  secretary 
and  treasurer  and  president  thereon  designated  as  such  officers,  is  the  note  of 
the  firm  alone. 

Cited  in  notes  (19  L.R.A.  680)  on  personal  liability  of  officers  on  note  made 
for  corporation;  (21  L.R.A. (N.S.)  1065)  on  effect  of  affixing  corporate  seal; 
(4  Eng.  Rul.  Gas.  284)  on  corporation  notes. 

Distinguished  in  Xunnemacher  v.  Poss,  116  Wis.  448,  92  N.  W.  375,  holding 
officers  personally  liable  on  note  stating  that  corporation  and  "we,  the  under- 
signed, promise  to  pay,"  signed  with  corporate  name  "by"  them. 

6  L.  R.  A.  72,  GRAY  v.  HAMIL,  82  Ga.  375,  10  S.  E.  205. 
Compensation    for    partner's    extra,    services. 

Cited  in  McAllister  v.  Payne,  108  Ga.  519,  34  S.  E.  165,  holding  compensation 
for  extra  services  cannot  be  recovered  by  one  partner  in  absence  of  agreement; 
Miller  v.  Hale,  96  Mo.  App.  430,  70  S.  W.  258,  holding  partners,  in  absence  of 
agreement,  entitled  to  equal  compensation;  Miller  v.  Hale,  96  Mo.  App.  430, 
70  S.  W.  258,  holding  that  where  two  persons  contract  to  construct  building, 
no  contract  of  partnership  appearing  they  are  entitled  to  equal  share  of  com- 
pensation though  one  performed  more  or  harder  work  than  the  other. 

Cited  in  notes   (9  L.R.A.  424)    on  compensation  of  partners  for  services;    (17 
L.R.A.  (X.S.)    391,  392,   396)    on   right  of  partner  to  compensation  for  services 
to  partnership. 
Moral   obligation    as   consideration. 

Cited  in  C.  H.  Davis  &  Co.  v.  Morgan,  117  Ga.  506,  61  L.R.A.  149,  97  Am.  St. 
Rep.  171,  43  S.  E.  732,  holding  moral  obligation  will  not  support  promise  to  pay 
more  wages  than  stipulated  in  contract  of  employment  for  a  year;  Davis  v.  Mor- 
gan, 117  Ga.  506,  61  L.R.A.  149,  97  Am.  St.  Rep.  171,  43  S.  E.  732,  holding  an 
agreement  to  pay  more  than  contract  stipulates  is  void  unless  supported  by  some 
valuable  consideration  or  constituting  a  substitution  for  the  old  contract. 

Cited  in  notes  (12  L.R.A.  471)  on  moral  obligation  as  consideration;  (6  Eng. 
Rul.  Cas.  42)  on  expense  already  incurred  as  consideration  for  subsequent 
promise  for  reimbursement. 

6  L.  R,  A.  73,  LOWE  v.  RAWLIXS,  83  Ga.  320,  10  S.  E.  204. 
Rigrht    of    snbrogration. 

Cited  in  footnotes  to  Dorrah  v.  Hill,  32  L.  R.  A.  631,  which  sustains  right  of 
one  loaning  money  on  invalid  deed  of  trust,  to  be  subrogated  to  prior  valid  deed 
paid  off  with  money  loaned;  Campbell  v.  Foster  Home  Asso.  26  L.  R.  A.  117. 
which  denies  subrogation  to  prior  mortgage  paid  without  mortgagor's  consent 
out  of  proceeds  of  invalid  mortgage. 


6  L.R.A.  75]  L.  R.  A.  CASES  AS  AUTHORITIES.  1000 

6  L.  R.  A.  75,  HOWARD  v.  DELAWARE  &  H.  CANAL  CO.  40  Fed.  195. 
Who    are    fellow    servants. 

Cited  in  Dixon  v.  Chicago  &  A.  R.  Co.  109  Mo.  426,  18  L.  R.  A.  800,  19  S.  W. 
412,  holding  quarry  laborer  and  trainmen  not  fellow  servants;  Parker  v.  Hannibal 
&  St.  J.  R.  Co.  109  Mo.  402,  18  L.  R.  A.  815,  19  S.  W.  1119  (dissenting  opinion), 
majority  holding  section  hands  ballasting  track  not  fellow  servants  of  trainmen ; 
Relyea  v.  Kansas  City,  Ft.  S.  &  G.  R.  Co.  112  Mo.  100,  18  L.  R.  A.  822,  20  S.  W. 
480  (dissenting  opinion),  majority  holding  brakeman  fellow  servant  of  fireman  on 
other  train;  Pike  v.  Chicago  &  A.  R.  Co.  41  Fed.  97,  holding  bridge  watchman 
not  fellow  servant  with  trainmen. 

Cited  in  footnotes  to  Baltimore  &  0.  R.  Co.  v.  Andrews,  17  L.  R.  A.  190,  which 
holds  conductor  and  engineer  fellow  servants  of  brakeman  on  other  train;  Clarke 
v.  Pennsylvania  Co.  17  L.  R.  A.  811,  which  holds  section  boss  of  one  gang  and 
member  of  another  gang  fellow  servants;  Fisher  v.  Oregon  Short  Line  &  U.  N.  R. 
Co.  16  L.  R.  A.  519,  which  holds  section  foreman  and  conductor  not  fellow 
servants. 

Cited  in  notes   (50  L.  R.  A.  434)   on  what  servants  are  deemed  to  be  in  same 
common  employment  apart  from  statutes,  where  no  questions  as  to  vice  principal  - 
ship  arises;    (7  L.  R.  A.  500)   on  who  are  fellow  servants. 
What  risks  assumed  by  employee. 

Cited  in  Hillis  v.  Spokane  &  I.  E.  R.  Co.  60  Wash.  10,  110  Pac.  624,  holding 
that  lineman  on  electric  railway  is  not  guilty  of  contributory  negligence  in 
obeying  order  of  foreman  to  push  tower  car  across  bridge,  when  work  train  was 
sighted  at  a  distance  as  he  had  right  to  rely  upon  protection  by  flagman. 

Cited  in  footnotes  to  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Galvin,  16  L.  R.  A.  337, 
which  holds  risk  from  projecting  articles  assumed  by  brakeman ;  Williamson  v. 
Newport  News  &  M.  Valley  R.  Co.  12  L.  R.  A.  297,  which  holds  brakeman  as- 
sumes risk  of  bridge  known  to  be  too  low ;  McKee  v.  Chicago,  R.  I.  &  P.  R.  Co. 
13  L.  R.  A.  817,  which  holds  risk  from  wing  fences  at  cattle-guards  assumed  by 
brakeman;  Mensch  v.  Pennsylvania  R.  Co.  17  L.  R.  A.  450,  which  holds  danger 
from  projection  of  bolt  from  end  of  car  assumed  by  brakeman. 

Cited  in  note   (12  L.  R.  A.  342)   on  assumption  by  employee  of  ordinary  risks 
of  employment. 
Liability    for    Injury    to    servant. 

Cited  in  footnote  to  St.  Louis,  A.  &  T.  R.  Co.  v.  Triplett,  11  L.  R.  A.  773,  which 
holds  master's  duty  to  protect  repair  track  not  fulfilled  by  adopting  rule,  suf- 
ficient if  faithfully  observed  by  employees;  Wallin  v.  Eastern  R.  Co.  54  L.  R.  A. 
481,  which  holds  failure  to  provide  suitable  rules  for  operation  of  hand  cars  used 
by  bridge  gangs  negligence. 

Cited  in  note  (8  L.  R.  A.  464)  on  master's  liability  for  injuries  caused  through 
negligence  of  servant. 
Measure    of    damages. 

Cited  in  Hutchins  v.  St.  Paul,  M.  &  M.  R.  Co.  44  Minn.  10,  46  N.  W.  79,  holding 
damages  recoverable  for  negligent  killing  of  deceased  measured  by  pecuniary  loss; 
Lazelle  v.  Newfane,  70  Vt.  447,  41  Atl.  511,  holding  son  not  entitled  to  even  nom- 
inal damages  for  death  of  aged  and  almost  helpless  mother  by  defective  highway, 
unless  pecuniary  loss  shown ;  Jacksonville  Electric  Co.  v.  Bowden,  54  Fla.  471, 
15  L.R.A.  (N.S.)  456,  45  So.  755,  holding  jury  may  consider  as  to  amount  of 
recovery,  evidence  as  to  age,  probable  duration  of  life,  habits  of  industry,  means, 
business,  earnings,  health  and  skill  of  deceased  and  his  reasonable  future  ex- 
pectations; Missouri,  K.  &  T.  R.  Co.  v.  McLaughlin,  73  Kan.  254,  84  Pac.  989, 
holding  more  than  nominal  damages  for  negligent  death  of  uncle  GO  years  old 


1001  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  82 

having  practically  no  property  excessive  where  the  claimants  were  from  21  to 
40  years  old  in  good  circumstances  and  not  dependent  on  such  uncle. 

Cited  in  footnote  to  San  Antonio  &  A.  P.  R.  Co.  v.  Long,  24  L.  R.  A.  637,  which 
denies  right  to  recover  for  death  by  one  receiving  from  estate  more  than  pro- 
spective benefit  had  death  not  ensued. 

Cited  in  notes  (17  L.R.A.  72,  76)  on  measure  of  damages  for  death  caused  by 
negligence;  (11  L.R.A. (N.S.)  624)  on  damages  recoverable  by  collateral  kindred 
for  negligent  killing  of  relative. 

Distinguished  in  Lake  Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  175,  3]  N.  E.  564, 
holding  damages   for   loss   of  support  and  maintenance   suffered  by   widow  and 
minor  children  recoverable. 
Allegations  as  to  personal  representatives. 

Cited  in  note  (70  Am.  St.  Rep.  679)  on  necessity  of  dependency  and  expecta- 
tion of  benefits  to  maintenance  of  action  for  death  of  human  being. 

Criticized  and  distinguished  in  Serensen  v.  Northern  P.  R.  Co.  45  Fed.  409, 
holding  complaint  should  allege  as  to  existence  of  widow  and  next  of  kin  in 
action  for  negligent  killing  of  intestate. 

6  L.  R.  A.  79,  STATE  v.  BURT,  41  La.  Ann.  787,  6  So.  631. 
Xewly    discovered    evidence. 

Cited  in  State  v.  Crenshaw,  45  La.  Ann.  499,  12  So.  628;  State  v.  Garig,  43 
La.  Ann.  370,  8  So.  934;  State  v.  Chambers,  43  La.  Ann.  1109,  10  So.  247;  State 
v.  Maxey,  107  La.  802,  32  So.  206,  —  denying  right  to  new  trial  for  newly  dis- 
covered evidence  contradicting  or  impeaching  witnesses  at  trial. 

Cited  in  notes  (56  L.R.A.  444)  on  dying  declarations  as  evidence;  (11  Eng. 
Rul.  Cas.  308)  on  admissibility  of  dying  declarations. 

Distinguished  in  State  v.  Washington,  108  La.  Ann.  229,  32  So.  396,  granting 
new  trial  where  affidavit  of  witness  seeking  to  impeach  his  own  testimony  is 
signed  also  by  his  attorney. 

6  L.  R.  A.  80,  WREN  v.  PARKER,  57  Conn.  529,  14  Am.  St.  Rep.  127,  18  Atl.  790. 
Payment  of  taxes  as  evidence  of  ownership. 

Cited  in  Ward  v.  Edge,  100  Ky.  770,  39  S.  W.  440,  holding  occupant's  payment 
of  taxes  competent  as  tending  to  show  ownership;  Merwin  v.  Morris,  71  Conn. 
575,  42  Atl.  855,  holding  rejection  of  evidence  of  payments  of  taxes  on  small 
portion  of  land  in  dispute  not  error  where  party  had  benefit  of  similar  evidence, 
and  in  view  of  charge  to  jury;  De  Foresta  v.  Gast,  20  Colo.  311,  38  Pac.  244, 
holding  one  holding  under  tax  deed,  and  paying  all  taxes  for  twice  statutory 
period,  entitled  to  deed's  protection  as  in  good  faith. 

6  L.  R,  A.  82,  FISHELL  v.  MORRIS,  57  Conn.  547,  18  Atl.  717. 
Liens. 

Cited  in  Turner  v.  Horton,  18  Wyo.  294,  106  Pac.  688,  holding  that  meaning 
of  lien  on  personal  property  for  labor  bestowed  upon  is  that  lienor  may  retain 
possession  until  charges  are  paid. 

Cited  in  footnotes  to  Sullivan  v.  Clifton,  20  L.  R.  A.  719,  which  holds  livery- 
stable  keeper's  lien  subject  to  prior  recorded  mortgage;  Hauch  v.  Ripley,  11  L.  R. 
A.  61,  which  holds  agister's  lien  inferior  to  chattel  mortgage. 

Cited  in  note  (83  Am.  St.  Rep.  452,  453)  on  lien  of  vendor  of  personalty. 

Distinguished  in  Heckman  v.  Tammen,  84  111.  App.  J>51,  holding  that  statute 
giving  laborers  and  servants  preferred  claim  upon  assets  gives  them  priority 
over  prior  chattel  mortgages. 


C  L.R.A.  82]  L.  R.  A.  CASES  AS  AUTHORITIES.  1002 

Devestment    of    lien. 

Cited  in  Goldsmith  Bros.  v.  Gensenleiter,  28  Pa.  Co.  Ct.  400,  34  Pittsb.  L.  J. 
N.  S.  43,  14  Pa.  Dist.  R.  516,  holding  stableman's  lien  for  keeping  horse  devested 
by  sale  to  innocent  purchaser. 

Cited  in  note  (16  Eng.  Rul.  Cas.  145)  on  loss  of  lien  by  parting  with  pos- 
session. 

6  L.  R.  A.  84,  STATE  ex  rel.  CLOVER  v.  LADIES  OF  SACRED  HEART,  99 

Mo.  533,  12  S.  W.  293. 
Limitation    of    term    of    corporation. 

Cited  in  State  ex  rel.  Pritchett  School  Inst.  v.  Lesueur,  141  Mo.  33,  41  S. 
W.  904,  holding  that  corporation  whose  articles  contemplate  perpetual  existence 
not  limited  under  statute  giving  succession  for  period  limited  in  charter,  or  else 
for  twenty  years;  State  ex  rel.  Morris  v.  Westminster  College,  175  Mo.  59,  74 
S.  W.  990,  holding  statute  limiting  to  twenty  years  existence  of  corporation 
not  otherwise  limited  inapplicable  to  denominational  college;  State  ex  rel.  Hines 
v.  Cape  Girardeau,  207  Mo.  101,  105  S.  W.  761,  holding  limit  of  existence  of 
turnpike  corporation  created  by  special  act  and  not  limited  as  to  duration  in 
its  charter  has  power  of  succession  by  its  corporate  name  for  twenty  years 
under  statute;  State  ex  rel.  Major  v.  German  Mut.  L.  Ins.  Co.  224  Mo.  92.  123 
S.  W.  19,  holding  under  a  special  act  of  incorporation  the  term  "perpetual  suc- 
cession" used  in  connection  with  charter  applies  only  to  such  succession  during 
existence  of  corporation  which  under  statute  is  twenty  years  in  absence  of 
specification  is  contrary  in  charter. 

Cited  in  footnote  to  Bank  of  Commerce  v.  Wiltsie,  47  L.  R.  A.  489,  which 
holds  invalid,  extension  of  special  charter  of  corporation. 

Cited  in  note    (33  L.  R.  A.  578)    as  to  period  of  existence  of  private  corpo- 
rations. 
Charitable    use. 

Cited  in  State  v.  Laramie  County,  8  Wyo.  134,  55  Pac.  451,  holding  state  pen- 
itentiary a  "charitable  institution"  \vithin  limitation  of  taxation  clause  in  Con- 
stitution. 

Cited  in  notes  (12  L.  R.  A.  415)  as  to  charitable  uses  and  trusts;  (13  L.  R. 
A.  218)  as  to  power  of  municipal  corporation  to  take  and  administer  property 
in  trust  for  charitable  uses. 

6  L.  R.  A.  87,  ST.  PAUL  F.  &  M.  INS.  CO.  v.  COLEMAN,  6  Dak.  458,  43  X.  W. 
693. 

Effect  on  premium  note  of  provision  releasing:  insurer  upon  nonpay- 
ment. 

Cited  in  Equitable  Ins.  Co.  v.  Harvey,  98  Tenn.  642,  40  S.  W.  1092,  holding 
that  suspension  of  liability  on  insurance  policy  while  premium  note  over  due, 
no  defense  to  liability  on  note;  Phenix  Ins.  Co.  v.  Rollins,  44  Neb.  750,  63  N. 
W.  46,  holding  insured  liable  for  full  amount  of  premium  note  for  five  years' 
insurance,  notwithstanding  provision  for  suspension  of  policy  during  default. 
Reduction  of  premium. 

Cited  in  Joshua  Hendy  Mach.  Works  v.  American  Steam  Boiler  Ins.  Co.  86  Cal. 
252,  21  Am.  St.  Rep.  33,  24  Pac.  1018,  holding  statutory  provision  relating  ex- 
clusively to  return  of  premium  does  not  authorize  or  apply  to  cancelation  of 
policy  at  mere  request  of  insured. 

6  L.  R.  A.  90,  GARDNER  v.  STROEVER,  81  Cal.  148.  22  Pac.  483. 
Mandatory    injunction. 

Cited  in  Hagen  v.  Beth,  118  Cal.  331,  50  Pac.  425,  holding  mandatory  injunc- 


3003  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  92 

tion  for  removal  of  trade  signs  pending  action  to  enjoin  use  of  trade  name,  er- 
roneous; Flood  v.  E.  L.  Goldstein  Co.  158  Cal.  250,  110  Pac.  916,  holding  that 
injunction  will  not  be  granted  to  restore  to  tenant  room  in  house  where  house 
is  destroyed. 

Cited  in  notes  (20  L.R.A.  162)  as  to  power  of  equity  to  grant  mandatory 
injunctions;  (10  Eng.  Rul.  Cas.  314)  on  mandatory  injunction  for  protection 
of  easement. 

Distinguished  in  Gardner  v.  Stroever,  89  Cal.  30,  26  Pac.  618,  granting  man- 
datory injunction  against  maintaining  building  obstructing  highway,  as  part 
of  relief. 

I'ussi  lii  I  i  t  >    of  further  injury. 

Cited  in  Hatch  v.  Raney,  9  Cal.  App.  717,  100  Pac.  886,  holding  temporary 
writ  of  injunction  not  issuable  where  act  to  be  enjoined  has  on  the  face 
of  the  complaint  been  already  committed;  Mendelson  v.  McCabe,  144  Cal.  233, 
103  Am.  St.  Rep.  78,  77  Pac.  915,  holding  cross-complaint  alleging  refusal  to 
desist  from  and  threat  to  continue  injurious  acts  sufficient  to  show  intent  to  con- 
tinue especially  where  such  allegations  are  admitted  to  be  true. 

6  L.  R.  A.  92,  FIRST  NAT.  BANK  v.  HOLLINGSWORTH,   78  Iowa,  575,  43 

N.   W.  536. 
Homestead,  what  constitutes. 

Cited  in  Maguire  v.  Hanson,  105  Iowa,  218,  74  N.  W.  776,  holding  that  mere 
intent  to  erect  upon  land  a  house,  to  be  occupied  as  home  at  some  indefinite 
time,  not  sufficient  to  create  "homestead;"  Gill  v.  Gill,  69  Ark.  598,  86  Am.  St. 
Rep.  213,  55  L.  R.  A.  192,  footnote  p.  191,  65  S.  W.  112,  holding  house  subject 
to  homestead  exemption  where  owner  repaired  and  cleaned  and  was  moving 
household  goods  into  it  at  death. 

Cited  in  footnotes  to  Lyons  v.  Andry,  55  L.R.A.  724,  which  holds  homestead 
exemption  not  lost  by  nonresidence  after  house  blown  down;  Ware  v.  Hall,  67 
L.R.A.  313,  which  holds  mere  raising  of  a  few  vegetables  on  a  vacant  lot  not 
such  occupancy  as  entitles  insolvent  to  hold  the  land  indefinitely  as  a  homestead. 

Cited  in  note  (21  Am.  St.  Rep.  30)  on  rights  in  homestead. 

Distinguished  in  Mann  v.  Corrington,  93  Iowa,  112,  57  Am.  St.  Rep.  256,  61  N. 
W.  409,  holding  homestead  nature  attaches  to  land  secured  for  home  from  pro- 
ceeds of  homestead. 
What    constitutes    security. 

Cited  in  National  City  Bank  v.  Torrent,  130  Mich.  263,  89  N.  W.  938,  holding 
service   of  garnishee   process,   "security"   within   meaning   of   contract   providing 
for  assignment  of  unsecured  claim. 
Application   of   payments. 

Cited  in  Pidcock  v.  Voorhies,  84  Iowa,  710,  49  N.  W.  1038,  holding  that  pay- 
ment on  one  open  account  are  to  be  applied  to  payment  of  debit  items  in  or- 
der of  their  dates;  Schoonover  v.  Osborne  Bros.  108  Iowa,  462,  79  N.  W.  263, 
holding  payments  by  partnership's  successor  applicable  in  order  upon  items  of 
open  running  account  continued  unchanged  with  partner  who  purchased  co- 
partner's interest;  Briggs  v.  Iowa  Sav.  Loan  Asso.  114  Iowa,  234,  86  N.  W.  320, 
holding  that  where,  to  secure  loan,  husband  and  wife  mortgage  homestead,  and 
former  pledges  his  stock,  and  also  subsequently  pledges  such  stock  for  person- 
al loan,  payments  presumed  first  applicable  to  homestead  debt;  YVingate  v.  Peo- 
ples Bldg.  '&  L.  Sav.  Asso.  15  Tex.  Civ.  App.  419,  39  S.  W.  999,  holding  that 
money  paid  without  application  being  specified,  upon  debt  secured  by  encum- 
brance part  void  and  part  valid,  first  applicable  upon  latter;  Shaffer  Bros.  v. 
Chernyk,  130  Iowa,  687.  107  X.  W.  801,  holding  court  should  apply  payment  of 
a  deM;  in  property  in  sucli  a  »-ay  as  to  protect  homestead  of  debtor. 


«  L.R.A.  92]  L.  R.  A.  CASES  AS  AUTHORITIES.  1004 

Cited  in  notes  (17  Am.  St.  Rep.  518;  96  Am.  St.  Rep.  47,  54,  56,  63;  3  Eng. 
Rul.  Cas.  355)  on  applications  of  payments. 

6  L.  R.  A.  95,  ROBINSON  v.  CONTINENTAL  INS.  CO.  76  Mich.  641,  43  X. 

W.  647. 
Stipulation    against    liability. 

Cited  in  Dale  v.  Continental  Ins.  Co.  95  Tenn.  44,  31  S.  W.  266,  holding  re- 
covery on  policy  defeated  for  loss  during  default  on  premium,  where  both  pol- 
icy and  note  provide  for  lapse  of  policy  upon  such  default;  Hale  v.  Michigan 
Farmers'  Mut.  F.  Ins.  Co.  148  Mich.  454,  111  N.  W.  1068,  holding  right  to 
recovery  on  insurance  policy  defeated  by  default  in  payment  of  notes  for  pre- 
mium where  stipulating  that  policy  remains  null  and  void  so  long  as  note  re- 
mained unpaid  after  maturity;  Kavanaugh  v.  Security  Trust  &  L.  Ins.  Co.  117 
Tenn.  56,  7  L.R.A.(N.S.)  263,  96  S.  W.  499,  10  A.  &  E.  Ann.  Cas.  680,  holding 
that  where  policy  provides  for  reinstatement  after  default  on  payment  and 
submission  of  health  certificate  and  note  provides  for  nonliability  on  default 
after  maturity  and  for  so  long  as  note  remains  unpaid  a  tender  of  payment 
after  maturity  before  death  is  a  reinstatement,  where  default  was  caused  by 
failure  of  notice  of  maturity  of  note. 

Cited  in  footnote  to  Stewart  v.  Union  Mut.  L.   Ins.   Co.  42  L.   R.  A.    147, 
which   holds  provision   against  policy  taking   effect  till   first  premium   paid  in- 
effectual, where  premium  note  given,  though  unpaid. 
"Waiver. 

Cited  in  footnote  to  Kocher  v.  Supreme  Council  C.  B.  L.  52  L.  R.  A.  861, 
which  denies  power  of  officers  of  benefit  society  to  waive  judgment  of  assess- 
ments for  death  benefits. 

6  L.  R.  A.  97,  DETROIT  HOME  &  DAY  SCHOOL  v.  DETROIT,  76  Mich.  521, 

43  N.  W.  593. 
Exemption    from    taxation. 

Approved  in  St.  John's  Military  Academy  v.  Edwards,  143  Wis.  556,  139  Am. 
St.  Rep.  1123,  128  N.  W.  113,  holding  that  school  or  academy  is  scientific  or 
literary  association  within  meaning  of  subd.  3,  sec.  1038,  stat.  (1898)  and  its 
property  not  taxable. 

Cited  in  Academy  of  Sacred  Heart  v.  Irey,  51  Neb.  757,  71  N.  W.  752,  holding 
exemption  of  educational  institution  from  taxation  extends  to  its  vegetable 
garden  used  to  supply  its  tables  directly,  or  in  a  few  instances,  by  exchange; 
Pfeiffer  v.  Board  of  Education,  118  Mich.  573,  42  L.  R.  A.  540,  77  N.  W.  250 
(dissenting  opinion),  majority  holding  supplemental  readings  from  Bible  in 
public  schools,  from  which  pupils  are  excused  upon  request,  not  illegal  as  taxa- 
tion for  support  of  teacher  of  religion. 

Cited  in  footnotes  to  Harvard  College  v.  Cambridge,  48  L.  R.  A.  547,  which 
holds  exempt  from  taxation  houses  occupied  by  college  presidents  and  profes- 
sors, and  dormitories  and  dining  halls  for  students;  New  England  Theosophical 
Corp.  v.  Boston,  42  L.  R.  A.  281,  which  denies  exemption  from  taxation  of  theo- 
sophical  corporation;  Ramsey  County  v.  Macalaster  College,  18  L.  R.  A.  278, 
which  holds  professors'  residences'  on  college  grounds  exempt,  but  not  unused 
land  in  college  tract;  Brown  University  v.  Granger,  36  L.  R.  A.  847,  which 
holds  real  estate  constituting  part  of  endowment  of  Brown  University  within 
exemption  of  "college  estate;"  German  Gymnastic  As*o.  v.  Louisville,  65  L.R.A. 
120,  which  holds  institution  for  teaching  physical  culture  exempt  from  taxation. 

Cited  in  note  (21  L.R.A. (N.S.)  166)  on  property  used  for  private  school  as 
•exempt  from  taxation. 


1005  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  102 

Distinguished,  in  Parsons  Business  College  v.  Kalamazoo,  166  Mich.  308,  33 
L.R.A.(X.S.)  922,  131  X.  W.  553.  holding  that  under  statute  exempting  educa- 
tional institutions  from  taxes  business  college  conducted  for  profit  of  stock- 
holders is  not  exempt. 

6  L.  R.  A.  102,  EATON  v.  WALKER,  76  Mich.  579,  43  N.  W.  638. 
Scope  of  title  of  statute. 

Cited  in  Jenking  v.  Osmun,  79  Mich.  306,  44  N.  W.  787,  holding  subsequent 
act  revising  laws  for  incorporation  of  manufacturing  and  mercantile  associations 
not  void,  as  embracing  more  than  one  subject;  Soukup  v.  Van  Dyke,  109  Mich- 
680,  67  X.  W.  911,  holding  act  entitled  as  relative  to  municipal  justices  courts, 
to  reduce  their  number  and  fix  compensation  and  provide  clerk  and  offices,. 
embraces  provision  for  exclusive  jurisdiction  in  justice's  cases  between  resi- 
dents; Teller  County  v.  Trowbridge,  42  Colo.  457,  95  Pac.  554,  holding  a  statute 
entitled  "Fees"  limiting  salaries  and  compensation  of  certain  officials,  is  uncon- 
stitutional, the  contents  not  being  germane  to  the  title. 

Cited  in  notes  (19  Am.  St.  Rep.  873)  on  what  must  be  expressed  in  title  of 
statute ;  ( 64  Am.  St.  Rep.  76 )  on  sufficiency  of  title  of  statute. 

Distinguished  in  Wardle  v.  Cummings,  86  Mich.  401,  49  X.  W.  212,  holding  act,, 
title  of  which   provides   for   incorporation   of  mutual   fire   insurance   companies,, 
embraces  organization  of  mutual  companies  to  insure  in  cities  and  villages  only. 
Corporations    or    officers    lie    facto. 

Cited  in  Lincoln  Park  Chapter  Xo.  177,  R.  A.  M.  v.  Swatek,  105  111.  App.  609V 
holding  that  a  corporation  regularly  organized  in  conformity  with  statute,  for 
lawful  purpose,  is  a  corporation  de  facto;  Georgia  Southern  &  F.  R.  Co.  v.  Mer- 
cantile Trust  &  D.  Co.  94  Ga.  315,  32  L.  R.  A.  211,  47  Am.  St.  Rep.  153,  21  S.  E. 
701,  holding  corporations  under  special  charters  enacted  after  general  statute, 
at  least  corporations  de  facto;  American  Loan  &  T.  Co.  v.  Minnesota  &  N.  W. 
R.  Co.  157  111.  652,  42  X.  E.  153,  holding  that,  in  absence  of  authorizing  stat- 
ute, company  formed  by  consolidation  of  domestic  with  foreign  corporations 
not  de  facto  corporation;  Cedar  Rapids  Water  Co.  v.  Cedar  Rapids,  118  Iowa, 
253,  91  X.  W.  1081,  holding  acceptance  of  franchise  which  city  was  not  au- 
thorized to  grant  does  not  create  a  color  of  right  not  questionable  collaterally; 
Bergeron  v.  Hobbs,  96  Wis.  650,  65  Am.  St.  Rep.  85,  71  N.  W.  1056  (dissenting 
opinion),  majority  holding  that  where  filing  of  certificate  is  condition  prece- 
dent to  incorporation,  organizers  are  individually  liable  for  society's  debts  upon 
failure  therein;  Auditor  General  v.  Menominee  County,  89  Mich.  627,  51  N.  W. 
483  (dissenting  opinion)  majority  holding  acquiescence  by  state  senate  in  acts, 
as  one  of  its  members,  of  one  who  had  been  illegally  seated,  makes  him  a  de 
facto  officer;  Whipple  v.  Tuxworth,  81  Ark.  401,  99  S.  W.  86,  holding  a  cor- 
poration to  be  de  jure  where  the  only  defect  in  its  organization  under  the 
statutes  was  that  the  petition  for  its  establishment  was  signed  by  ten  residents 
of  the  city  instead  of  ten  residents  within  its  own  territorial  limits;  Clark  v. 
American  Cannel  Coal  Co.  165  Ind.  216,  112  Am.  St.  Rep.  217,  73  N.  E.  1083, 
holding  a  corporation  after  expiration  of  period  fixed  for  its  existence  is  not  a 
corporation  de  facto  and  its  corporate  existence  may  be  questioned  collaterally; 
Atty.  Gen.  ex  rel.  Linnell  v.  Gay,  162  Mich.  615,  127  N.  W.  814,  holding  that 
invalid  attempt  to  extend  life  of  corporation  in  1882  was  not  validated  by  con- 
stitutional amendment  of  1889;  Xewcomb-Endicott  Co.  v.  Fee,  167  Mich.  582, 
133  X.  W.  540,  holding  that  existence  of  charter  or  enabling  act,  and  user  by 
party  to  suit  of  rights  claimed  to  be  conferred  by  charter  or  law  are  necessary 
to  establish  corporation  de  facto. 

Cited  in  notes    (9  L.R.A.  33)    as  to  corporations;    (33  Am.  St.  Rep.  182)    on. 


B  L.R.A.  102]  L.  R.  A.  CASES  AS  AUTHORITIES.  1006 

defective  formation  of  corporations;    (118  Am.  St.  Rep.  255)  on  what  constitutes 

a  corporation  de  facto. 

Estoppel   to   question   Incorporation. 

Cited  in  Davis  v.  Stevens,  104  Fed.  237,  holding  validity  of  corporate  exist- 
ence subject  to  collateral  attack  where  there  is  no  law  under  which  corporation 
might  exist;  Kalamazoo  v.  Kalamazoo  Heat,  Light  &  P.  Co.  124  Mich.  83,  82 
N.  W.  811,  holding  that  city  granting  franchise,  under  which  work  has  been 
done  and  expenditures  made,  cannot  question  corporate  existence  by  reason  of  ir- 
regularities in  execution  and  filing  of  papers;  Lehman  v.  Knapp,  48  La.  Ann. 
1155,  20  So.  674,  holding  that  seller  of  goods  to  corporation  not  authorized  to 
deal  as  merchant  is  not  estopped  from  enforcing  stockholders'  liability  as  part- 
ners; Imperial  Bldg.  Co.  v.  Chicago  Open  Bd.  of  Trade,  238  111.  108,  87  N.  E. 
167,  holding  that  to  constitute  corporation  de  facto  there  must  be  a  valid  law 
under  which  incorporation  could  be  had  and  in  the  absence  of  such  a  law  an 
attempted  corporation  may  be  questioned  as  to  existence  collaterally;  Love  v. 
Ramsey,  139  Mich.  50,  102  N.  W.  279,  holding  a  person  dealing  with  a  corpora- 
tion de  facto  knowing  it  to  be  such  cannot  hold  its  members  or  its  manager 
individually  liable. 
Partnership  liability  of  stockholders. 

Cited  in  notes  (17  L.R.A.  550)  as  to  partnership  liability  of  stockholders  in 
case  of  defective  or  illegal  incorporation;  (18  L.R.A. (N.S.)  1094)  on  effect  of 
agreement  to  share  profits  to  create  partnership;  (17  Am.  St.  Rep.  162)  on 
liability  of  promoters  of  corporations  as  partners. 

Distinguished  in  Mandeville  v.  Courtwright,  126  Fed.  1011,  holding  stock- 
holders of  corporation  conducting  unauthorized  business  not  liable  as  part- 
ners for  torts  of  its  agents. 

6  L.  R.  A.  107,  COLLIER  v.  COWGER,  52  Ark.  322,  12  S.  W.  702. 
Constructive   eviction. 

Cited  in  Scoggin  v.  Hudgins,  78  Ark.  535,  115  Am.  St.  Rep.  60,  94  S.  W.  684, 
holding  action  for  breach  of  warranty  of  title  and  against  encumbrances  accrues 
when  grantee  is  forced  by  judgment  to  pay  encumbrance  actual  disseisin  not 
being  essential;  Carpenter  v.  Carpenter,  88  Ark.  171,  113  S.  W.  1032,  holding 
a  purchaser  of  land  under  a  warranty  deed  being  divested  of  title  under  prior 
claim  may  recover  for  breach  of  warranty  on  a  showing  of  due  notice  to  war- 
rantor to  defend  and  a  bona  fide  defense  by  himself. 

Cited  in  footnotes  to.  Grove  v.  Youell,  33  L.  R.  A.  297,  which  holds  life  ten- 
ant evicted  from  room  when  denied  access  by  passage  through  house;  Oakford 
v.  Nixon,  34  L.  R.  A.  575,  which  holds  destruction  of  wall  for  advertising  pur- 
poses not  eviction. 

Cited  in  notes   (122  Am.  St.  Rep.  859)   on  breach  of  covenant  of  warranty  by 
eviction;    (13  L.R.A. (N.S.)    734)    on  necessity  of  request  to  defend  in  order  to 
bind  covenantor  by  decree  against  grantee. 
Damages    for    breach    of    warranty. 

Cited  in  Dillahunty  v.  Little  Rock  &  Ft.  S.  R.  Co.  59  Ark.  636,  27  S.  W.  1002, 
holding  covenantee  entitled,  under  warranty,  to  necessary  expenditure  to  ex- 
tinguish adverse  title,  but  not  exceeding  amount  paid  covenantor,  with  inter- 
est; Smith  v.  Corege,  53  Ark.  299,  14  S.  W.  93,  holding  assignor  of  note  war- 
ranting collection  liable  for  consideration  and  costs  of  assignee's  unsuccessful 
suit  thereon;  West  Coast  Mfg.  &  Invest.  Co.  v.  West  Coast  Improv.  Co.  31 
Wash.  614,  72  Pac.  455,  holding  measure  of  damages  for  breach  of  warranty 
by  failure  of  title  to  part  of  land  is  proportional  part  of  consideration,  with 
interest. 


1007  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  111 

Cited  in  note  (24  Am.  St.  Rep.  267,  268)  on  damages  recoverable  for  breach 
of  warranty  of  title. 

Distinguished  in  Madden  v.  Caldwell  Land  Co.  16  Idaho,  64,  21  L.R.A.(N.S.) 
332,  100  Pac.  358,  holding  that  where  vendor  of  land  in  bad  faith  causes  a 
breach  of  covenant  to  vendee  of  quiet  enjoyment  the  measure  of  damages  is 
adequate  compensation  for  actual  injury  sustained  or  "damages  for  loss  of 
bargain." 

<3  L.  R.  A.  108,  Re  DALPAY,  41  Minn.  532,  16  Am.  St.  Rep.  729,  43  N.  W.  564. 
Assignment    for   creditors;    property   in  another  state. 

^ited  in  Re  Harrison,  46  Minn.  335,  48  N.  W.  1132,  holding  illegal  prefer- 
ence or  concealment  with  respect  to  property  in  another  state  defeats  insol- 
vent's right  to  discharge;  Re  Kahn,  55  Minn.  512,  57  N.  W.  154,  holding  agree- 
ment in  state  to  give  preference  by  shipping  goods  to  creditor  in  another  state 
illegal. 

Cited  in  note  (58  Am.  St.  Rep.  92)   on  fraudulent  assignments  for  creditors. 
Insolvency   defined. 

Cited  in  Stone  v.  Dodge,  96  Mich.  524,  21  L.  R.  A.  287,  56  N.  W.  75,  defining 
insolvency  as  inability  to  meet  maturing  obligations,  in  ordinary  course  of  busi- 
ness. 

Cited  in  note   ( 10  L.  R.  A.  707 )    on  what  constitutes  insolvency. 

•6  L.  R.  A.   Ill,  KETTLE  RIVER  R.  CO.  v.  EASTERN  R.  CO.  41  Minn.  461, 

43  N.  W.  469. 
Public   nse   justifying;   taking   by   eminent   domain. 

Cited  in  Chicago,  B.  &  N.  R.  Co.  v.  Porter,  43  Minn.  530,  46  N.  W.  75,  holding 
switch  which  p  \iblic  have  right  to  use,  public  use  justifying  taking  land  by  con- 
demnation; St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Petty,  57  Ark.  368,  20  L.  R.  A.  440, 
21  S.  W.  884,  holding  side  track  for  legitimate  railroad  purposes,  though  bene- 
fiting particular  shipper,  public  use;  Butte,  A.  &  P.  R.  Co.  v.  Montana  Union 
R.  Co.  16  Mont.  523,  31  L.  R.  A.  304,  50  Am.  St.  Rep.  508,  41  Pac.  232,  holding 
connection  of  mines  with  market  public  use  justifying  condemnation  of  lands  for 
railroad:  Ulmer  v.  Lime  Rock  R.  Co.  98  Me.  588,  66  L.R.A.  387,  57  Atl.  1001, 
holding  railroad  may  condemn  land  for  branch  track  to  single  quarry;  Re  Split 
Rock  Cable  Co.  58  Hun,  358,  12  N.  Y.  Supp.  116,  holding  tramway  intended  for 
use  of  private  company,  not  accessible  to  public  except  by  permission,  not  public 
use;  Board  of  Health  v.  Van  Hoesen,  87  Mich.  538,  14  L.R.A.  116,  49  N.  W. 
894,  holding  that  cemetery  corporation,  with  discretionary  power  to  sell  lots  to 
individuals,  cannot  condemn  lands;  Portneuf  Irrigating  Co.  v.  Budge,  16  Idaho. 
132,  100  Pac.  1046,'l8  A.  &  E.  Ann.  Cas.  674,  holding  that  irrigating  canal  is 
public  use;  State  v.  Chicago,  M.  &  St.  P.  R.  Co.  115  Minn.  54,  131  N.  W.  859; 
Bedford  Quarries  Co.  v.  Chicago,  I.  &  L.  R.  Co.  175  Ind.  306,  35  L.R.A.(N.S.) 
643,  94  N.  E.  326, — holding  that  right  of  way  for  side  tracks  to  stone  quarry 
is  for  public  use  where  it  will  be  open  impartially  to  use  of  all  persons  desiring 
to  use  it;  Dubuque  &  S.  C.  R.  Co.  v.  Ft.  Dodge,  D.  M.  &  S.  R.  Co.  146  Iowa, 
668,  125  N.  W.  672,  holding  that  railroad  that  will  furnish  public  additional 
conveniences  for  transportation  of  freight,  although  chiefly  used  by  manufactur- 
ing company,  is  public  use;  Stockdale  v.  Rio  Grande  W.  R.  Co.  28  Utah,  209, 
77  Pac.  849,  holding  railroad  switch  track  to  be  a  public  utility  though  from 
its  location  it  is  available  only  to  a  limited  number  of  users. 

Cited  in  footnotes  to  Bridal  Veil  Lumbering  Co.  v.  Johnson,  34  L.  R.  A.  368, 
which  sustains  right  of  railroad  built  through  timbered  region  for  few  miles 
to  sawmill,  to  exercise  of  eminent  domain;  Re  Chicago  &  N.  W.  R.  Co.  56  L. 


6  L.R.A.  111]  L.  R.  A.  CASES  AS  AUTHORITIES.  1008 

R.  A.  240,  which  sustains  right  to  condemn  land  for  spur  track  to  reach  large 
ice  industry;  Kansas  &  T.  Coal  R.  Co.  v.  Northwestern  Coal  &  Min.  Co.  51 
L.  R.  A.  936,  which  holds  railroad  company  entitled  to  exercise  of  eminent  do- 
main, though  railroad  short  and  built  chiefly  to  transport  coal  of  particular 
company;  Healy  Lumber  Co.  v.  Morris,  63  L.R.A.  821,  which  denies  right  to 
condemn  land  for  transportation  to  market  of  logs  of  private  owner:  Ulmer 
v.  Lime  Rock  R.  Co.  66  L.R.A.  387,  which  sustains  right  to  acquire  by  eminent 
domain  right  of  way  for  branch  track  to  sustain  quarry  when  intended  for  use 
of  public  though  primary  purpose  is  accommodation  of  owner  of  quarry. 

Cited  in  notes  in  (22  Am.  St.  Rep.  49)   on  taking  of  private  property  for  pub- 
lic use;    (102  Am.  St.  Rep.  819)   on  uses  for  which  power  of  eminent  domain  can- 
not be  exercised. 
Covenants   relating:    to   land,    enforceable    against    grantees    with    notice. 

Cited  in  Jellison  v.  Halloran,  44  Minn.  203,  46  N.  W.  332,  holding  one  claiming 
ownership  chargeable  with  notice  of  recorded  mortgage  and  rights  accruing 
thereunder;  Miller  v.  Fasler,  42  Minn.  367,  44  N.  W.  256,  holding  second  mort- 
gagee bound  by  owner's  assumption  of  first  mortgage  by  deed  on  record;  Lyman 
v.  Suburban  R.  Co.  190  111.  329,  52  L.  R.  A.  649,  60  N.  E.  515,  holding  that 
covenant  to  maintain  depot  at  certain  place  in  consideration  of  right  of  way 
runs  with  land;  Clement  v.  Willett,  105  Minn.  270,  17  L.R.A. (N.S.)  1099,  127 
Am.  St.  Rep.  562,  117  N.  W.  491,  15  A.  &  E.  Ann.  Gas.  1053,  holding  that  pro- 
vision in  deed  by  which  grantee  assumes  the  payment  of  an  existing  mortgage  i& 
not  a  covenant  running  with  the  land;  Sjobbom  v.  Mark,  103  Minn.  201,  15- 
L.R.A.(N.S.)  1135,  114  N.  W.  746,  14  A.  &  E.  Ann.  Gas.  125,  on  distinction  be- 
tween a  covenant  running  with  the  land  and  a  personal  contract;  Farmers'  & 
M.  Irrig.  Co.  v.  Hill,  90  Neb.  855,  39  L.R.A.(N.S.)  802,  134  N.  W.  929;  Evans- 
ville  &  S.  I.  Traction  Co.  v.  Evansville  Belt  R.  Co.  44  Ind.  App.  163,  87  N.  E. 
21, — holding  that  parties  to  contract  and  those  in  privity  with  them  either  in 
estate  or  contract  are  only  persons  bound  thereby;  Chicago  &  N.  W.  R.  Co.  v. 
Fox  River  Electric  R.  &  Power  Co.  119  Wis.  189,  96  N.  W.  541,  holding  that 
agreement  between  street  railway  and  railroad  as  to  crossing  of  street  railway 
over  lands  and  track  of  the  railroad  does  not  attach  to  fee  of  the  land. 

Cited  in  footnotes  to  Doty  v.  Chattanooga  Union  R.  Co.  48  L.  R.  A.  160,  which 
holds  covenant  for  running  certain  trains  binding  on  subsequent  purchaser  of 
railroad;  Mott  v.  Oppenheimer,  17  L.  R.  A.  409,  which  construes  as  running 
with  the  land  an  agreement  for  party  wall,  expressly  declared  to  run  with  land. 

Cited  in  notes    (82  Am.  St.  Rep.  666,  675,  683),  on  what  covenants  run  with 
the  land;    (126  Am.  St.  Rep.  373)   on  liability  of  grantee  on  covenants  and  con- 
ditions in  deed;   (136  Am.  St.  Rep.  690)  on  creation  and  conveyance  of  easementa 
appurtenant. 
Contract  by  pnblic  service  corporation   snppressive  of  competition. 

Cited  in  Chicago,  I.  &  L.  R.  Co.  v.  Southern  I.  R.  Co.  38  Ind.  App.  239,  70> 
N.  E.  843,  holding  that  railroad  cannot  legally  contract  not  to  establish  switches 
and  sidetracks  at  a  certain  place  so  as  to  prevent  competition;  Calor  Oil  &  Gas 
Co.  v.  Franzell,  128  Ky.  725,  36  L.R.A. (N.S.)  456,  109  S.  W.  328,  holding  that 
contract  by  producer  of  oil  for  exclusive  right  of  way  across  farm  between  oil 
land  and  market  is  void. 

6  L.  R.  A.  119,  STATE  v.  VANDERSLUIS,  42  Minn.  129,  43  N.  W.  789. 
Equal  protection  and  privileges. 

Cited  in  State  ex  rel.  Kellogg  v.  Currens,  111  Wis.  437,  56  L.  R.  A.  256,  87 
N.  W.  561,  sustaining  act  requiring  examination  of  graduate  of  foreign  med- 
ical college  before  licensing;  State  v.  Bair,  112  Iowa,  468,  51  L.  R.  A.  778r 


1009  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  119 

84  N.  W.  532,  sustaining  act  limiting  practice  of  medicine  to  those  having  diplo- 
ma, passing  examination,  or  who  have  practised  five  years;  State  v.  Knowles, 
90  Md.  656,  49  L.  R.  A.  698,  45  Atl.  877,  sustaining  exemption  of  graduates 
of  regular  college  of  dentistry  from  examination  for  license;  State  v.  Creditor, 
44  Kan.  567,  21  Am.  St.  Rep.  306,  24  Pac.  346,  sustaining  exemption  of  den- 
tists practising  in  state  from  requirement  of  license;  State  v.  Beck,  21  R.  I. 
295,  45  L.  R.  A.  271,  43  Atl.  366,  holding  practitioners  of  medicine  exempted 
from  restrictions  as  to  practice  of  dentistry;  Ex  parte  Whitley,  144  Cal.  176,  77 
Pac.  879,  1  A.  &  E.  Ann.  Cas.  13,  holding  act  requiring  one  practicing  dentistry 
to  procure  a  license  therefor,  constitutional;  State  ex  rel.  Grant  v.  Rosenkrans, 
30  R.  I.  395,  75  Atl.  491,  19  Ann.  Cas.  824,  holding  that  statutes  providing 
for  examinations  in  practice  of  dentistry  and  regulation  of  practice  are  consti- 
tutional, although  certain  persons  are  not  required  to  take  examination. 

Cited  in  footnotes  to  Noel  v.  People,  52  L.  R.  A.  287,  which  holds  void,  act 
giving  exclusive  privilege  to  sell  patent  medicines  to  registered  pharmacists: 
State  Y.  Bair,  51  L.  R.  A.  776,  which  sustains  statute  requiring  examination 
before  state  board  of  examiners,  five  years'  practice,  or  certificate  from  medical 
school,  before  practising  medicine. 

Cited    in   note    14    L.R.A.    582,    on    constitutional    equality    as    to    privileges, 
immunities,  and  protection. 
Police   poirer. 

Cited  in  Ex  parte  Lucas,  160  Mo.  232,  61  S.  W.  218,  sustaining  act  regulat- 
ing trade  of  barbers  so  as  to  prevent  spread  of  contagious  diseases;  State  ex 
rel.  Burroughs  v.  Webster,  150  Ind.  617,  41  L.  R.  A.  217,  50  N.  E.  750,  sustain- 
ing act  requiring  all  physicians  to  obtain  new  license;  State  v.  Heinemann, 
80  Wis.  257,  27  Am.  St.  Rep.  34,  49  N.  W.  818,  upholding  act  requiring  phar- 
macists to  register  and  pay  registration  fee;  Re  Inman,  8  Idaho,  408.  69  Pac.  120, 
holding  an  act  regulating  the  practice  of  medicine  was  a  valid  exercise  of  the 
police  power;  Kentucky  Bd.  of  Pharmacy  v.  Cassidy,  115  Ky.  703,  74  S.  W.  730. 
holding  a  law  regulating  the  practice  of  pharmacy  and  organizing  a  state  board 
of  examiners,  constitutional;  State  v.  Hovorka,  100  Minn.  250,  8  L.R.A.  (N.S.) 
1275,  110  N.  W.  870,  10  A.  &  E.  Ann.  Cas.  398,  holding  the  act  regulating  the 
practice  of  pharmacy  constitutional,  though  providing  for  a  license  fee  annually; 
State  ex  rel.  Grant  v.  Rosenkrans,  30  R.  I.  392,  75  Atl.  491,  19  Ann.  Cas.  824. 
sustaining  act  for  examination  for  practice  of  dentistry. 
Reasonableness  of  regulations. 

Cited  in  Com.  v.  Gibson,  21  Pa.  Co.  Ct.  238,  7  Pa.  Dist.  R.  389,  holding  regu- 
lation excepting  practising  dentists  from  act  regulating  dentistry  reasonable; 
Railroad  Commission  v.  Houston  &  T.  C.  R.  Co.  16  Tex.  Civ.  App.  135,  40  S.  W. 
526,  sustaining  rules  of  railroad  commissioners  regulating  compression  of  cot- 
ton as  reasonable;  State  ex  rel.  Milwaukee  Medical  College  v.  Chittenden,  127 
Wis.  521,  107  N".  W.  500,  holding  that  it  is  for  the  court  to  say  whether  a  reg- 
ulation is  reasonable,  but  it  is  for  the  legislature  to  say  if  it  is  expedient;  Goth- 
ard  v.  People,  32  Colo.  14,  74  Pac.  890;  State  ex  rel.  Crandall  v.  Mclntosh,  205 
Mo.  615,  103  S.  W.  3078, — holding  law  requiring  applicants  for  examination  for 
a  license  to  practice  dentistry  to  present  a  diploma  from  some  school,  reason- 
able in  its  regulations. 
Rigrnt  of  i»li>  siri:i  ii  to  practice  dentistry. 

Cited  in  Kettles  v.  People,  221  111.  233,  77  N.  E.  472,  upholding  the  act 
regulating  the  practice  of  dentistry  though  it  provided  the  physicians  might  prac- 
tice it;  State  v.  Taylor,  106  Minn.  219,  19  L.R.A. (N.S.)  878,  118  N.  W.  1012, 
holding  that  a  person  licensed  to  practice  as  physician  and  surgeon,  could  not 
practice  as  a  dentist  unless  licensed  as  such. 
L.R.A.  Au.  Vol.  I.— 64. 


6  L.R.A.  121]  L.  R.  A.  CASES  AS  AUTHORITIES.  1010 

6  L.  R.  A.  121,  McKINNON  v.  VOLLMAR,  75  Wis.  82,  17  Am.  St.  Rep.  178,  43 

N.  W.   800. 
Action  for  money  bad  and  received. 

Cited  in  Mankin  v.  Jones,  68  W.  Va.  430,  69  S.  E.  981,  holding  that  action  for 
money  had  and  received  lies  for  money  due  as  profits,  which  might  be  realized 
by  sale  of  land  held  in  defendant's  name,  but  which  he  agreed  to  keep. 

Cited  in  notes    (18  Am.  St.  Rep.  430)    on  assumpsit  for  money  paid  without 
consideration. 
Recovery   of   purchase   price   of  land. 

Followed  in  Stelting  v.  Bank  of  Sparta,  136  Wis.  371,  117  N.  W.  798,  holding 
recovery  of  purchase  price  may  be  had  where  broker  intentionally  or  otherwise 
pointed  out  wrong  land  to  purchaser  on  which  purchase  was  made  though  the 
owners  had  no  knowledge  of  mistake  when  price  was  paid. 

Cited  in  Graham  v.  Merchant,  43  Or.  305,  72  Pac.  1088,  holding  action  for 
money  had  and  received  maintainable  against  vendor  abandoning  land  contract 
containing  forfeiture  clause,  who  accepted  payment  after  defect;  Butt  v.  Smith, 
121  Wis.  570,  105  Am.  St.  Rep.  1039,  99  N.  W.  328,  holding  that  an  over  pay- 
ment based  on  mistake  in  contract  for  deed  not  embodied  in  the  deed  may  be 
recovered  in  an  action  for  money  had  and  received;  Noble  v.  Libby,  144  Wis.  637, 
129  N.  W.  791,  to  the  point  that  purchase  money  may  be  recovered  in  action 
for  money  had  and  received  by  vendee  upon  rescission  of  contract  for  sale  of  land. 
Effect  of  false  representations. 

Followed  in  Kathan  v.  Comstock,  140  Wis.  432,  28  L.R.A.  (N.S.)  210,  122 
N.  W.  1044,  holding  that  where  conveyance  is  obtained  on  faith  of  misstatement 
of  facts  it  is  immaterial  that  they  were  made  in  good  faith  since  it  is  duty  of 
one  speaking  as  of  his  own  knowledge  to  know  whereof  he  speaks. 

Cited  in  Hart  v.  Moulton,  104  Wis.  359,  76  Am.  St.  Rep.  881,  80  N.  W.  599, 
holding  purchaser's  false  statements  as  to  financial  ability  ground  for  rescis- 
sion, although  he  intends  to  pay;  Hoock  v.  Bowman,  42  Neb.  84,  47  Am.  St. 
Rep.  691,  60  N.  W.  389,  holding  purchaser  entitled  to  rescission  of  contract 
of  sale  of  lots  the  location  of  which  was  misrepresented;  Zunker  v.  Kuehn,  113 
Wis.  421,  88  N.  W.  605,  holding  rescission  authorized  where  one  party  has  record 
title  to  only  part  of  land  pointed  out  in  good  faith  as  his;  Montreal  Lumber 
Co.  v.  Mihills,  80  Wis.  561,  50  N.  W.  507,  holding  action  for  deceit  maintainable 
for  false  representation  as  to  quality  of  lumber  sold,  though  no  actual  fraudu- 
lent intent  existed;  Greiling  v.  Watermolen,  128  Wis.  447,  107  N.  W.  339, 
holding  where  sale  of  lots  is  procured  by  false  representation  as  to  width  of 
fronting  street  rescission  may  be  had  without  showing  actual  damage;  Kell  v. 
Trenchard,  73  C.  C.  A.  202,  142  Fed.  22,  holding  that  where  agent  without 
knowledge  of  principal,  points  out  wrong  boundaries  to  agent  of  prospective  pur- 
chaser, who  then  purchases,  the  principal  though  innocent  cannot  benefit  by  his 
agent's  wrong. 

Cited  in  footnotes  to  Bigham  v.  Madison,  47  L.  R.  A.  267.  which  authorizes 
rescission  for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor;  H.  W.  Williams  Transp.  Line  v.  Darius  Cole  Transp.  Co.  56  L.  R.  A. 
939,  which  denies  right  to  rely  on  false  representations  as  to  speed  of  steam- 
boat, if  express  warranty  as  to  speed  is  inserted  in  contract ;  Boddy  v.  Henry, 
53  L.  R.  A.  769,  which  denies  deceit  of  land  owner  in  making  false  representa- 
tions as  to  quantity,  under  belief  in  their  truth. 

Cited  in  notes  (37  L.R.A.  608)  on  right  to  rely  on  representations  made  to 
effect  contract,  as  basis  for  charge  of  fraud;  (38  Am.  St.  Rep.  845)  on  rescission 
by  vendee  for  misrepresentations  by  vendor;  (85  Am.  St.  Rep.  373)  on  liability 


1011  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  121 

for  misrepresentations  indirectly  made  to  complaining  party;    (12  Eng.  Rul.  Cas. 
295)  on  what  constitutes  fraud  and  liability  therefor. 
False  representations  as  to  ascertainable  facts. 

•Cited  in  Bostwick  v.  Mutual  L.  Ins.  Co.  116  Wis.  418,  67  L.R.A.  746,  92  N. 
W.  246;  on  false  representations  amounting  to  fraud  because  of  persuasion  of 
other  party  not  to  investigate  the  facts. 

Cited  in  note  in  38  L.R.A. (N.S.)   306,  on  vendor  and  purchaser;  misrepresen- 
tation as  to  location  of  property. 
Authority   of   agent. 

Cited  in  Gunther  v.  Ullrich,  82  Wis.  228,  33  Am.  St.  Rep.  32,  52  N.  W.  88, 
holding  owner  of  land  liable  for  damage  resulting  from  agent's  misrepresenta- 
tions as  to  its  situation  to  one  exchanging  goods  for  same;  State  ex  rel.  Seth 
Thomas  Clock  Co.  v.  Cass  County,  53  Neb.  770,  74  N.  W.  254,  denying  right 
of  agent  negotiating  for  sale  of  clock  to  appoint  her  husband  to  act  for  prin- 
cipal in  receiving  payment;  Kampman  v.  Nicewaner,  60  Neb.  211,  82  N.  W.  623, 
raising  question  as  to  power  to  delegate  authority  from  mortgagee  to  bid  amount 
of  mortgage  debt  at  foreclosure  sale;  Porter  v.  Beattie,  88  Wis.  32,  59  N.  W.  499, 
sustaining  purchaser's  right  to  rely  on  representations  by  agent  as  to  quality 
and  location  of  land,  whose  falsity  is  not  obviously  discoverable;  Fritz  v.  Chicago 
Grain  &  Elevator  Co.  136  Iowa,  707,  114  N.  W.  193,  holding  that  an  agent  may 
hire  a  sub-agent  and  his  acts  within  scope  of  authority  of  agent  are  binding 
on  the  principal;  Lee  v.  Conrad,  140  Iowa,  18,  117  N.  W.  1096,  holding  a  power 
given  by  one  cotenant  to  another  to  negotiate  a  sale  of  the  common  property  im- 
plies the  authority  to  pay  a  commission  to  a  broker  who  produces  a  purchaser; 
Wright  v.  Isaacks,  43  Tex.  Civ.  App.  226,  95  S.  W.  55,  holding  the  error  of  sub- 
agent  in  a  conveyance  is  the  error  of  the  principal  where  the  appointment  by 
agent  of  such  subagent  is  authorized;  John  Schroeder  Lumber  Co.  v.  Stearns,  122 
Wis.  508,  100  N.  W.  836,  holding  an  inspection  of  lath  by  representative  of 
broker  employed  to  inspect  and  purchase  for  defendant,  precludes  the  defendant 
from  refusing  to  take  lath  on  grounds  of  defective  quality;  Arnold  v.  National 
Bank,  ]26  Wis.  367,  3  L.R.A. (N.S.)  583,  105  N.  W.  828,  holding  a  misstatement 
as  to  what  land  a  bank  has  to  sell  made  by  cashier  having  sale  of  lands  in  his 
charge  to  a  broker  his  agent  for  such  sale  is  attributable  to  the  bank  and  it  is 
liable  for  effects  of  sale  thereunder;  Puffer  v.  Welch,  144  Wis.  511,  129  N.  W.  525, 
Ann.  Cas.  1912A,  1120,  on  power  of  agent  to  create  other  agents  with  equal  au- 
thority. 

Cited  in  footnote  to  Milton  v.  Johnson,  47  L.  R.  A.  529,  which  denies  power 
of  subagent  to  apply  proceeds  of  debt  collected,  to  payment  of  claim  due  him 
from  principal  agent. 

Cited  in  notes  (50  Am.  St.  Rep.  119)  on  subagents  and  their  relation  to  agent 
appointing  them;  (2  Eng.  Rul.  Cas.  303,  304)  on  power  of  agent  to  delegate  his 
authority. 

Distinguished  in  Williams  v.  Moore,  24  Tex.  Civ.  App.  406,  58  S.  W.  953,  de- 
nying real  estate  agent's  power  to  employ  broker  so  as  to  bind  principal  for 
commissions  on  selling  to  purchaser  found  by  broker;  Hoyer  v.  Ludington,  100 
Wi>.  445,  76  X.  W.  348,  holding  principal  not  responsible  for  misrepresentations 
of  agent  as  to  incorporation  c'  company  to  purchase  land  for  sale  of  which  only 
he  is  employed. 
Sufficiency  of  complaint. 

Cited  in  Thomson  v.  Elton,  109  Wis.  596,  85  N.  W.  425,  holding  allegation  that 
money  was  used  for  lawful  town  purposes  sufficient  in  action  for  money  had  and 
received;  Andresen  v.  Upham  Mfg.  Co.  120  Wis.  564,  98  N.  W,  518,  holding  a 


6  L.R.A.  121]  L.  R.  A.  CASES  AS  AUTHORITIES.  1012 

complaint  framed  after  form  of  quantum  valebat  is  sufficient  to  cover  evidence  that 
goods  were  purchased  by  and  delivered  to  a  third  person  for  defendant;  Meyer  v. 
Doherty,  133  Wis.  405,  13  L.R.A.(N.S.)  249,  126  Am.  St.  Rep.  967,  113  N.  W.  671, 
holding  a  complaint  in  the  usual  form  of  conversion  sufficient  without  stating; 
the  particulars  of  the  claim. 

6  L.  R,  A.  125,  STATE  v.  SCHWEITZER,  57  Conn.  532,  18  Atl.  787. 
Defense   to   prosecution   for   nonsnpport. 

Cited  in  People  v.  Bliskey,  21  Misc.  434,  47  N.  Y.  Supp.  974,  and  People  v, 
Brady,  13  Misc.  296,  34  N.  Y.  Supp.  1118,  holding  adultery  of  wife  defense  to, 
prosecution  for  nonsupport;  Keller  v.  Foleron,  36  Misc.  536,  73  N.  Y.  Supp.  951, 
holding  adultery  of  wife  no  defense  to  surety  on  bond  of  husband  to  pay  weekly 
toward  her  support;  State  v.  Stout,  139  Iowa,  561,  117  N.  W.  958,  an  justification 
for  refusal  to  support  wife. 
Sufficiency  of  complaint  for  •violation  of  ordinance. 

Cited  in  State  v.  Carpenter,  60  Conn.  106,  22  Atl.  497,  holding  allegation  that 
place  was  kept  for  playing  policy,  contrary  to  ordinance,  sufficient. 

Cited  in  footnote  to  Haughn  v.  State,  59  L.  R.  A.  789,  which  holds  indictment 
for  bunco  steering  which  follows  statutory  language  insufficient. 
Preponderance  of  evidence. 

Followed  in  Tucker  v.  State,  89  Md.  482,  46  L.R.A.  181,  43  Atl.  778,  holding 
that  burden  of  proving  an  affirmative  defense  by  way  of  justification  is  on  the 
defendant  by  a  fair  preponderance  of  evidence. 

Cited  in  State  v.  Ballou,  20  R.  I.  613,  40  Atl.  861,  holding  accused  seeking 
to  excuse  manslaughter  on  ground  of  attack  must  prove  it  by  preponderance 
of  evidence;  Tucker  v.  State,  89  Md.  482,  46  L.  R.  A.  185,  43  Atl.  778,  holding 
burden  of  showing  justification  for  shooting  one  attacking  third  person  is  on  de- 
fendant in  action  for  wrongfully  causing  death;  State  v.  Bailey,  79  Conn.  602,  65 
Atl.  951,  holding  that  where  self  defense  is  pleaded  against  a  charge  of  murder 
the  burden  is  on  defendant  to  so  prove  by  fair  preponderance  of  evidence  though 
he  need  only  raise  a  reasonable  doubt  as  to  his  guilt  thereby  to  be  acquitted ; 
Com.  v.  Standard  Oil  Co.  129  Ky.  555,  112  S.  W.  632,  holding  that  where  de- 
fense is  a  justification  for  sale  of  goods  charged  to  be  prohibited  by  statute 
the  burden  of  proving  that  such  goods  were  not  prohibited  is  on  defendant,  noth- 
ing appearing  in  the  prosecution  to  raise  a  reasonable  doubt. 

6  L.  R.  A.  128,  PEOPLE  v.  ANDREWS,  115  N.  Y.  427,  22  N.  E.  358. 
Evasion  of  excise  laws   by  clubs. 

Followed  in  People  v.  Sinell,  34  N.  Y.  S.  R.  899,  12  N.  Y.  Supp.  40,  sus- 
taining conviction  for  illegal  sale  of  liquor,  where  club  was  mere  pretense  to- 
evade  excise  law. 

Explained  in  People  v.  Adelphi  Club,  149  N.  Y.  10,  31  L.  R.  A.  512,  footnote 
p.  510,  52  Am.  St.  Rep.  700,  43  N.  E.  410,  holding  furnishing  of  liquors  to 
member  of  bona  fide  social  club  not  a  sale. 

Cited  in  People  v.  Luhrs,  7  Misc.  504,  28  N.  Y.  Supp.  498,  holding  it  misde- 
meanor for  steward  of  jncorporated  club  without  license,  to  serve  liquors  for  pay 
to  members;  Re  Lyman,  28  App.  Div.  130,  50  N.  Y.  Supp.  977,  holding  that  club, 
once  bona  fide,  may  be  changed  into  establishment  to  evade  law,  and  thereby 
forfeit  license;  Barden  v.  Montana  Club,  10  Mont.  335,  11  L.  R.  A.  595,  footnote 
p.  593,  24  Am.  St.  Rep.  27,  25  Pac.  1042,  holding  bona  fide  social  club  serving  li- 
quors to  members  and  guests  at  fixed  prices  without  profit  not  retail  liquor 
seller;  People  v.  Bradley,  33  N.  Y.  S.  R.  564,  11  N.  Y.  Supp.  594,  upholding  con- 
viction of  steward  of  fake  club  furnishing  liquor  to  members  buying  tickets;. 


1013  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  132 

State  v.  Boston  Club,  45  La.  Ann.  592,  20  L.  R.  A.  187,  footnote  p.  185,  12  So. 
895,  holding  incorporated  social  club  must  have  license,  where  statute  requires 
license  for  "sales,  gifts,  or  other  disposition;"  Krnavek  v.  State,  38  Tex.  Crim. 
Rep.  49,  41  S.  W.  612,  upholding  conviction  where  sale  was  made  by  steward 
of  fake  club  to  member;  Com.  v.  Tierney,  1  Pa.  Dist.  R.  20,  29  W.  N.  C.  196, 
holding  sale  of  liquor  above  cost  by  steward  of  incorporated  club,  to  member,  il- 
legal ;  R.  v.  Hughes,  29  Ont.  Rep.  184,  holding  a  steward  of  a  club  dispensing 
liquor  to  members  and  others  guilty  of  selling  liquor  under  statute  where  such 
liquor  was  given  in  exchange  for  tickets  purchasable  from  club  treasurer  having 
his  office  in  the  club  building  where  the  liquor  was  dispensed. 

Cited  in  footnotes  to  State  v.  Easton  Social,  Literary,  &  Musical  Club,  10 
L.  R.  A.  64,  which  holds  furnishing  of  liquor  to  members  of  club  on  payment 
of  fixed  prices  a  sale;  State  ex  rel.  Stevenson  v.  Law  &  Order  Club,  62  L.R.A. 
884,  which  denies  right  of  incorporated  social  club  to  dispense  liquor  to  members 
without  license. 

Cited  in  notes  (10  L.  R.  A.  82)  on  taxation  of  social  clubs;  (12  L.  R.  A.  413) 
on  sales  of  liquor  by  social  club;  (12  L.R.A. (N.S.)  520,  522,  523)  on  applicability 
of  liquor  laws  to  social  club;  (24  Am.  St.  Rep.  36;  28  Am.  St.  Rep.  832)  on 
distribution  of  liquor  by  social  club. 

Distinguished  in  State  ex  rel.  Bell  v.  St.  Louis  Club,  125  Mo.  328,  26  L.  R. 
A.  580,  footnote  p.  573,  28  S.  W.  604,  holding  distribution  of  liquor  by  bona  fide 
social  club  to  members  not  a  sale  within  dramshop  act. 

6  L.  R.  A.  132,  CLARK  v.  FOSDICK,  118  N.  Y.  7,  16  Am.  St.  Rep.  733,  22  N. 

E.  1111,  23  N.  E.  136. 
Validity   of   separation   agreements. 

Cited  in  Buckel  v.  Suss,  28  Abb.  N.  C.  24,  18  N.  Y.  Supp.  719,  holding  that 
wife  having  executed  valid  separation  agreement  cannot  maintain  action  for 
enticement;  Lawrence  v.  Lawrence,  31  Misc.  649,  64  N.  Y.  Supp.  1113,  upholding 
in  equity  agreement  between  husband  and  wife,  already  separated,  for  mainte- 
nance of  children;  Grube  v.  Grube,  65  App.  Div.  241,  72  N.  Y.  Supp.  529,  re- 
fusing to  allow  wife,  under  valid  separation  agreement,  weekly  allowance  pend- 
ing divorce  action;  Chamberlain  v.  Cuming,  37  Misc.  816,  76  N.  Y.  Supp.  896, 
holding  agreement  after  separation  valid,  although  referring  to  separation  in 
futuro;  Duryea  v.  Bliven,  122  N.  Y.  570,  25  N.  E.  908,  and  France  v.  France, 
38  Misc.  460,  77  N.  Y.  Supp.  1015,  holding  agreement  after  separation,  through 
trustee,  valid;  Stebbins  v.  Morris,  19  Mont.  120,  47  Pac.  642,  holding  separa- 
tion must  be  necessary  to  validate  separation  agreement;  Foote  v.  Xickerson,  70 
N.  H.  512,  54  L.  R.  A.  563,  footnote  p.  554,  48  Atl.  1088,  holding  voluntary  sep- 
aration agreement  between  husband  and  wife  void;  Carling  v.  Carling,  42  Misc. 
493,  86  N.  Y.  Supp.  46,  holding  agreement,  after  separation,  for  separate  main- 
tenance of  wife,  not  contrary  to  public  policy;  Winter  v.  Winter,  191  X.  Y.  470, 
16  L.R.A.  (X.S.)  713,  84  N.  E.  382,  holding  that  husband  and  wife  after  separation 
may  make  a  binding  contract  for  separate  support  of  wife;  Sunderlin  v.  Sunder- 
lin,  123  App.  Div.  423,  107  X.  Y.  Supp.  979,  holding  an  agreement  for  separation 
and  separate  support  of  wife  made  while  the  parties  are  living  together  and  with- 
out the  intervention  of  trustee  is  void. 

Cited  in  footnotes  to  Henderson  v.  Henderson,  48  L.  R.  A.  766,  which  holds 
unmodifiable,  without  wife's  consent,  decree  in  conformity  with  separation 
agreement  for  payment  of  stipulated  monthly  sum  for  wife's  maintenance;  Baum 
v.  Baum,  53  L.  R.  A.  650,  which  holds  void,  separation  agreement  on  considera- 
tion that  husband  support  wife  and  children,  and  assign  policies  on  his  life; 
Palmer  v.  Palmer,  61  L.  R.  A.  641,  which  holds  void,  contract  between  bus- 


6  L.R.A.  132]  L.  R.  A.  CASES  AS  AUTHORITIES.  1014' 

band  and  wife  to  secure  divorce;  Bailey  v.  Dillon,  66  L.R.A.  427,  which  sustains- 
right  of  husband  and  wife  in  contemplation  of  separation  to  enter  into  fair  and 
reasonable  agreement  through  intervention  of  trustee  as  tc  wife's  support  which 
during  continuance  of  separation  husband  may  have  specifically  enforced. 

Cited  in  notes  (9  L.R.A.  113)  on  articles  of  separation  between  husband  and 
wife;  (12  L.R.A. (N.S.)  850,  852)  on  validity  of  agreement  between  husband  and 
wife  renouncing  marital  rights;  (83  Am.  St.  Rep.  863,  873,  874)  on  validity 
and  effect  of  separation  agreements. 

Distinguished  in  Lawrence  v.  Lawrence,  32  Misc.  505,  66  N.  Y.  Supp.  393, 
holding  agreement  to  support  children,  solely  between  husband  and  wife,  not 
separated,  pending  divorce,  void;  Poillon  v.  Poillon,  49  App.  Div.  343,  63  N.  Y. 
Supp.  301,  Affirming  29  Misc.  668,  61  N.  Y.  Supp.  582,  holding  agreement  be- 
tween husband  and  wife  to  separate,  void;  Edic  v.  Horn,  42  Misc.  30,  85  N".  Y.. 
Supp.  535,  holding  tripartite  agreement  for  separate  maintenance,  confirming', 
one  made  while  living  together,  against  public  policy. 
Effect  of  divorce  on  separation  agreements. 

Cited  in  Galusha  v.  Galusha,  116  N.  Y.  645,  6  L.  R.  A.  487,  15  Am.  St.  Rep.. 
453,  22  N.  E.  1114,  holding  valid  separation  agreement  unaffected  by  decree  of 
divorce;  Chamberlain  v.  Cuming,  29  N.  Y.  S.  R.  675,  8  N.  Y.  Supp.  851,  hold- 
ing valid  separation  agreement  not  rescinded  by  action  for  divorce  and  applica- 
tion for  alimony  and  counsel  fees;  Taylor  v.  Taylor,  32  Misc.  314,  66  N.  Y.  Supp. 
561,  holding  unlawful  marriage  of  husband  after  valid  separation  agreement  does 
not  entitle  wife  to  alimony;  Jones  v.  Jones,  1  Colo.  App.  31,  27  Pac.  85,  holding 
valid  separation  agreement  unaffected  by  divorce  decree  without  alimony. 

6  L.  R.  A.   136,  ROLLER  v.  BEAM,  86  Va.  512,   10  S.  E.  241. 
\  «•.>!•.•,  n  in «•  n  t    of  policy. 

Cited  in  Spooner  v.  Hilbish,  92  Va.  339,  23  S.  E.  751,  upholding  action  by 
personal  representative  and  creditor  of  deceased  to  set  aside  assignment  of  policy. 

Cited  in  footnotes  to  Steele  v.  Gatlin,  59  L.  R.  A.  129,  which  holds  complete 
gift  not  made  by  verbal  assignment  of  life  policy,  accompanied  with  words  in- 
dicating intent  to  give,  and  delivery  of,  policy;  Opitz  v.  Karel,  62  L.  R.  A.  982, 
holding  insured  may  make  valid  gift  of  proceeds  by  delivery  of  policy  payable 
to  personal  representative;  McQuillan  v.  Mutual  Reserve  Fund  Life  Asso.  56  L, 
R.  A.  233,  which  sustains  right  to  provide  that  assigned  policy  shall  be  void 
as  to  all  above  debt  due  assignee;  Steinback  v.  Diepenbrock,  44  L.  R.  A.  417, 
which  authorizes  assignment  of  policy  to  one  having  no  insurable  interest ; 
Chamberlain  v.  Butler,  54  L.  R.  A.  338,  which  sustains  right  to  assign  policy  on 
own  life  to  one  without  insurable  interest ;  Mutual  Reserve  Fund  Life  Asso: 
v.  Hurst,  20  L.  R.  A.  761,  which  holds  assignee's  insurable  interest  as  creditor 
not  condition  of  recovery  on  policy;  American  Mut.  L.  Ins.  Co.  v.  Bertram,  64 
L.  R.  A.  935,  holding  innocent  assignee  of  policy  taken  by  person  without  in- 
surable interest  in  life  of  insured  may  recover  premiums  paid;  Hinton  v.  Mutual 
Reserve  Fund  L.  Asso.  65  L.R.A.  161,  which  holds  insurance  company  nort  liable 
on  policy  issued  to  wife  of  mortgagor  and  assigned  by  her  to  mortgagee  as 
security  for  the  debt;  Gordon  v.  Ware  Nat.  Bank,  67  L.R.A.  550,  which  holds  as- 
signment of  life  policy  immediately  on  its  issue  to  evade  rule  against  issuing 
policy  to  one  without  insurable  interest  renders  assignment  void. 

Cited  in  notes  (3  L.R.A. (N.S.)  949)  on  validity  of  assignment  of  interest  in 
life  insurance  to  one  paying  premiums;  (6  L.R.A. (N.S.)  129)  on  validity  of  as- 
signment not  made  as  cover  for  wager  policy  of  life  insurance  to  one  having  no 
insurable  interest. 


1015  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  140 

Disapproved  in  Farmers  &  T.  Bank  v.  Johnson,  118  Iowa,  285,  91  N.  W.  1074, 
holding  life  insurance  policy  may  be  assigned  to  person  without  insurable  interest. 
:  N -ii  i-.-i  hit-  interest. 

Cited  in  Long  v.  Meriden  Britannia  Co.  94  Va.  603,  27  S.  E.  499,  holding  as- 
signment of  policy  as  security  valid,  though  debtor  thereafter  be  released  from 
personal  liability;  Crosswell  v.  Connecticut  Indemnity  Asso.  51  S.  C.  108,  28 
S.  E.  200,  holding  valid  policy  assigned  in  good  faith  to  person  without  in- 
surable interest  by  beneficiary  and  insured,  with  insurer's  consent;  Tate  v. 
Commercial  Bldg.  Asso.  97  Va.  77,  45  L.  R.  A.  245,  75  Am.  St.  Rep.  770,  33 
S.  E.  382,  holding  building  association  has  no  insurable  interest  in  member  not 
indebted  to  it;  Peoria  Life  Asso.  v.  Hines,  332  111.  App.  647,  holding  that  a 
policy  can  be  assigned  to  a  creditor  of  insured  as  security  for  debt,  also  citing 
annotation  to  same  point;  Metropolitan  L.  Ins.  Co.  v.  Elison,  72  Kan.  205, 
3  L.R.A.(N.S-)  943,  115  Am.  St.  Rep.  189,  83  Pac.  410,  7  A.  A  E.  Ann.  Gas.  909, 
holding  that  one  having  no  insurable  interest  in  life  of  insured  cannot  take 
apart  assignment  of  policy  interest  in  consideration  for  payment  of  premiums; 
Lewis  v.  Palmer,  106  Va.  526,  56  S.  E.  341,  holding  wife  has  an  insurable  in- 
terest in  life  of  husband  and  may  purchase  policy  of  insurance  on  his  life  which 
has  been  assigned  to  creditor  as  collateral  security. 

Cited  in  footnote  to  Adams  v.  Reed,  35  L.  R.  A.  692,  which  holds  woman  has 
insurable  interest  in  life  of  son-in-law. 

Cited  in  note   (13  Eng.  Rul.  Cas.  397)  on  insurable  interest  in  life. 
Anionnt    recoverable   by   assignee    of   policy- 

Cited  in  New  York  L.  Ins.  Co.  v.  Davis,  96  Va.  741,  44  L.  R.  A.  306,  32 
S.  E.  475,  holding  assignee  of  policy  to  secure  debt  limited  to  recovery  of  in- 
debtedness; Tate  v.  Commercial  Bldg.  Asso.  97  Va.  78,  45  L.  R.  A.  245,  75  Am. 
St.  Rep.  770,  33  S.  E.  382,  holding  association  receiving  proceeds  on  member's 
policy  can  retain  only  amount  of  premiums  paid  by  it  and  expenses;  Exchange 
Bank  v.  Loh,  104  Ga.  452,  44  L.  R.  A.  381,  31  S.  E.  459,  and  First  Nat.  Bank 
v.  Terry,  99  Va.  196,  37  S.  E.  843,  holding  creditor's  insurable  interest  in  debt- 
or's life  limited  to  amount  of  debt,  premiums  paid,  and  interest;  Kessler  v. 
Kuhns,  1  Ind.  App.  518,  27  N.  E.  980,  holding  holder  of  valid  policy  on  an- 
other's life  cannot  assign  same  to  creditors  without  insurable  interest;  Hays  v. 
Lapeyre,  48  La.  Ann.  755,  35  L.  R.  A.  652,  19  So.  821,  holding  creditor  not  en- 
titled to  proceeds  of  policy  beyond  advances,  attorney's  fees,  and  interest;  Woody 
v.  Schaaf,  106  Va.  802,  56  S.  E.  807.  holding  bond  of  indebtedness  issued  to  credit- 
or who  has  insured  life  of  debtor  is  prima  facie  evidence  of  insurable  interest 
and  amount  thereof  that  creditor  has  in  life  of  debtor. 

6  L.  R.   A.   140,   STOELKER  v.   THORNTON,   88   Ala.  241,   6   So.   680. 

/ 
Assignment   of    insurance    policy. 

Cited  in  Culver  v.  Guyer,  129  Ala.  607,  29  So.  779,  holding  assignee  of  insur- 
ance policy  holds,  as  trustee,  excess  of  proceeds  over  outlay  therefor;  Spies 
v.  Stikes,  112  Ala.  588,  20  So.  959,  holding  guardian  cannot  be  allowed  "a 
child's  part"  of  proceeds  of  benefit  certificate,  as  promised  by  holder  thereof 
in  consideration  of  payment  of  assessments;  Sands  v.  Hammell,  108  Ala.  626, 
18  So.  489,  holding  creditor  entitled  to  proceeds  of  insurance  policy  assigned 
to  secure  bona  fide  debt:  Farmers  &  T.  Bank  v.  Johnson,  118  Iowa,  285,  91  N. 
W.  1074.  sustaining  assignment  of  life  insurance  policy  as  security  to  one 
without  insurable  interest:  Troy  v.  London,  145  Ala.  284.  39  So.  713,  holding  the 
presumption  being  against  insurable  interest,  the  assignee  must  prove  the  in- 
terest upon  which  the  assignment  is  based;  Middelstadt  v.  Grand  Lodge  S.  H.  107 


6  L.R.A.  140]  L.  R.  A.  CASES  AS  AUTHORITIES.  1016 

Minn.  233,  120  N.  W.  37,  holding  insured  may  dispose  of  proceeds  from  benefit 
certificate  by  will  to  one  not  having  an  insurable  interest  in  his  life. 

Cited  in  note   (3  L.R.A. (N.S.)   939,  944)   on  validity  of  assignment  of  interest 
in  life  insurance  to  one  paying  premiums;   (19  Am.  St.  Rep.  791;  52  Am.  St.  Rep. 
566)   on  assignment  of  benefits  in  mutual  benefit  association;    (87  Am.  St.  Rep. 
518)    on  assignment  of  life  insurance  policies. 
Insurer's  rules  as  to  transfer  of  policy. 

Cited  in  Nye  v.  Grand  Lodge,  A.  O.  U.  W.  9  Ind.  App.  154,  36  N.  E.  429,  hold- 
ing beneficiary  certificate  assignable  to  one  without  interest  in  assured'a  life,  if 
not  used  as  cloak  for  wager,  and  where  not  obnoxious  to  society's  regulations. 

Cited  in  notes  (7  L.  R.  A.  189)  on  transfer  of  mutual  benefit  certificate; 
(15  L.  R.  A.  351)  on  changing  designation  in  benefit  certificate  otherwise  than  in 
prescribed  method. 

6  L.  R.  A.  143,  DEAN  v.  PENNSYLVANIA  R.  CO.   129  Pa.  514,  15  Am.  St 

Rep.  733,  18  Atl.  718. 
Imputed    negligence. 

Cited  in  Bunting  v.  Hogsett,  139  Pa.  375,  12  L.  R.  A.  270,  23  Am.  St.  Rep. 
192,  21  Atl.  31,  holding  that  carrier's  negligence  cannot  be  imputed  to  paosen- 
ger  so  as  to  defeat  recovery  from  third  person  for  negligence;  Pyle  v.  Clark,  75 
Fed.  648,  holding  negligence  of  driver  of  private  conveyance  not  imputable  to 
one  riding  with  him  with  right  to  assume  that  driver  is  exercising  ordinary 
care;  Downey  v.  Philadelphia  Traction  Co.  14  Pa.  Co.  Ct.  252,  3  Pa.  Dist. 
R.  82,  holding  that  passenger  upon  street  car,  injured  by  joint  negligence  of 
street  car  company  and  railroad  company,  may  have  verdict  against  both ; 
Mullen  v.  Owosso,  100  Mich.  108,  23  L.  R.  A.  694,  footnote  p.  693,  43  Am.  St. 
Rep.  436,  58  N.  W.  663  (dissenting  opinion),  majority  holding  negligence  of 
driver  of  private  carriage  is  imputable  to  woman  of  age  of  discretion  voluntarily 
riding  with  him;  Lohman  v.  McManus,  23  Pa.  Co.  Ct.  502,  9  Pa.  Dist.  R.  226, 
holding  negligence  of  driver  to  be  imputed  to  guest  knowing  of,  and  accepting, 
risk  presented;  Duval  v.  Atlantic  Coast  Line  R.  Co.  134  N.  C.  344,  65  L.  R. 
A.  727,  46  S.  E.  750,  holding  negligence  of  driver  not  imputable  to  occupant  of 
vehicle;  Bresee  v.  Los  Angeles  Traction  Co.  149  Cal.  136,  5  L.R.A.(N.S.)  1062, 
$5  Pac.  152,  on  care  required  to  escape  imputation  of  negligence  of  driver;  Flynn 
v.  Chicago  City  R.  Co.  250  111.  474,  95  N.  E.  449,  holding  that  person  riding  with 
another  who  is  owner  and  driver  cannot  recover  for  injury  at  railroad  crossing 
if  his  own  negligence  contributes  to  injury;  McBride  v.  Des  Moines,  134  Iowa, 
407,  109  N.  W.  618,  on  the  general  rule  of  imputed  negligence;  Shultz  v.  Old 
Colony  Street  R.  Co.  193  Mass.  315,  8  L.R.A. (N.S.)  604,  118  Am.  St.  Rep.  502, 
79  N.  E.  873,  9  A.  &  E.  Ann.  Cas.  402,  holding  that  the  negligence  of  driver  con- 
curring with  that  of  third  person  cannot  be  imputed  to  the  one  injured  riding  as 
a  guest  using  due  care  and  having  no  knowledge  of  impending  danger;  Marsh 
v.  Kansas  City  Southern  R.  Co.  104  Mo.  App.  587,  78  S.  W.  284,  holding  that  re- 
covery for  death  by  negligent  act  is  not  defeated  by  concurring  negligence  of 
person  driving  wagon  in  which  deceased  is  riding  as  guest  and  at  the  time  not 
knowing  of  driver's  negligence;  Loso  v.  Lancaster  County,  77  Neb.  469,  8  L.R.A. 
(N.S.)  624,  109  N.  W.  752,  holding  that  where  person  injured  while  riding  in 
privatf;  vehicle  is  free  from  negligence  and  no  privity  exists  between  him  and 
his  driver  the  concurring  negligence  of  the  driver  cannot  be  imputed  to  person 
injured;  Little  v.  Central  Dist.  &  Printing  Teleg.  Co.  213  Pa.  237,  62  Atl.  848; 
Duval  v.  Atlantic  Coast  Line  R.  Co.  134  N.  C.  344,  65  L.R.A.  727,  101  Am.  St.  Rep- 
830,  46  S.  E.  750, — holding  negligence  of  driver  concurring  with  that  of  another 
not  imputable  to  guest  riding  in  private  carriage;  Kammerdiener  v.  Rayburn  Twp. 


1017  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  14? 

233  Pa.  330,  82  Atl.  464,  holding  that  negligence  of  driver  cannot  be  imputed  to 
person  riding,  in  action  against  town  for  injury  caused  by  defective  bridge 
where  such  person  had  no  control  over  driver  and  he  took  dangerous  road  and 
might  have  taken  safe  road;  Gibson  v.  Bessemer  &  L.  E.  R.  Co.  37  Pa.  Super.  Ct. 
75,  on  the  imputation  of  negligence  of  driver  to  the  party  hiring  or  riding; 
Thompson  v.  Pennsylvania  R.  Co.  215  Pa.  115,  64  Atl.  323,  7  A.  &  E.  Ann.  Cas. 
351,  holding  negligence  of  driver  of  fire  engine  is  the  negligence  of  fireman  riding 
thereon  where  fireman  knew  that  no  stop  would  be  made  at  railroad  crossing 
where  injury  resulted;  Brommer  v.  Pennsylvania  R.  Co.  29  L.R.A.  (N.S. )  928r 
103  C.  C.  A.  135,  179  Fed.  581,  holding  that  person  riding  in  automobile  on  in- 
vitation is  guilty  of  contributory  negligence  if  he  fails  to  exercise  care  for  his 
safety  on  approaching  railroad  crossing;  Foley  v.  East  Flamborough  Twp.  26 
Ont.  App.  Rep.  47,  holding  that  negligence  of  driver  cannot  be  imputed  to  person 
who  is  merely  an  occupant  of  a  private  conveyance  as  a  guest. 

Cited  in  footnotes  to  Union  P.  R.  Co.  v.  Lapsley,  16  L.  R.  A.  800,  which 
holds  negligence  of  carriage  owner  in  driving  team  not  imputable  to  passen- 
ger; East  Tennessee,  V.  &  G.  R.  Co.  v.  Markens,  14  L.  R.  A.  281,  which  holds 
hack  driver's  negligence  in  colliding  with  train  not  imputable  to  passenger. 

Cited  in  notes  (8  L.  R.  A.  844)  as  to  imputation  of  negligence  to  child; 
(9  L.R.A.  157)  as  to  imputation  of  driver's  negligence  to  passenger;  (16  Am. 
St.  Rep.  254;  57  Am.  St.  Rep.  360,  361;  110  Am.  St.  Rep.  292;  8  L.R.A.(N.S.) 
609,  610,  655,  675)  on  imputed  negligence  of  driver  to  passenger. 

Distinguished  in  Colorado  &  S.  R.  Co.  v.  Thomas,  33  Colo.  522,  70  L.R.A.  684, 
81  Pac.  801,  3  A.  &  E.  Ann.  Gas.  700,  holding  that  no  recovery  for  death  may  be 
had  where  deceased  the  guest  of  person  driving  without  care  to  avoid  accident 
joined  with  driver  in  attempt  to  cross;  McMahen  v.  White,  30  Pa.  Super.  Ct. 
179,  holding  negligence  of  gnest  in  driving  owner's  vehicle  such  owner  having 
immediate  means  of  control,  is  imputable  to  such  owner. 

Disapproved  in  Matthews  v.  Delaware,  L.  &  W.  R,  Co.  56  N.  J.  L.  37,  22  L.  R. 
A.  262,  27  Atl.  919,  holding  that  where  collision  occurs  through  concurring  neg- 
ligence of  street  car  and  railroad  companies,  passenger  may  maintain  joint  action. 
Contributory  negligence. 

Cited  in  Snyrler  v.  Penn  Twp.  14  Pa.  Super.  Ct.  154,  holding  one  riding  upon 
another's  wagon,  who  joins  him  in  testing  dangers  which  she  knows  exist,  guilty 
of  contributory  negligence;  Illinois  C.  R.  Co.  v.  McLeod,  78  Miss.  342,  52  L.  R.  A. 
956,  footnote,  p.  954,  84  Am.  St.  Rep.  630,  29  So.  76,  holding  one  riding  with 
hired  team,  vehicle,  and  driver,  guilty  of  contributory  negligence  in  not  checking 
or  remonstrating  with  latter  in  case  of  apparent  peril  from  crossing  before  ap- 
proaching train;  Miller  v.  Louisville,  N.  A.  &  C.  R.  Co.  128  Ind.  101,  25  Am.  St. 
Rep.  416,  27  N.  E.  339,  holding  wife  riding  with  husband,  guilty  of  contributory 
negligence  in  failing  to  exercise  ordinary  care  at  railroad  crossing  known  to  her 
to  be  dangerous ;  Whitman  v.  Fisher,  98  Me.  578,  57  Atl.  895,  holding  that  where 
both  driver  and  person  riding  have  equal  chance  of  averting  accident  by  use  of 
due  care  under  the  circumstances  the  person  riding  cannot  recover  for  injury 
caused  by  negligence  of  driver  and  another;  Cotton  v.  Willmar  &  S.  F.  R.  Co.  99 
Minn.  372,  8  L.R.A.  (N.S.)  654,  116  Am.  St.  Rep.  422,  109  N.  W7.  835,  9  A.  &  E. 
Ann.  Cas.  935,  holding  it  the  duty  of  one  riding  in  a  hired  conveyance  to  notify 
driver  of  apparent  danger  or  take  precautions  for  his  own  safety.  Davis  v. 
Chicago,  R.  I.  &  P.  R.  Co.  16  L.R.A.  (N.S.)  431,  88  €.  C.  A.  488,  159  Fed.  19; 
Fechley  v.  Springfield  Traction  Co.  119  Mo.  App.  367,  96  S.  W.  421, — holding 
person  guilty  of  contributory  negligence  who  while  riding  as  guest  of  driver  and 
seeing  negligence  of  such  driver  in  crossing  track,  does  nothing  to  insure  his  own 
personal  safety;  Dryden  v.  Pennsylvania  R.  Co.  211  Pa.  623,  61  Atl.  249,  holding 


6  L.R.A.  143]  L.  R.  A.  CASES  AS  AUTHORITIES.  1018 

that  where  deceased  whose  husband  hired  a  buggy  was  killed  by  negligence  of 
•driver  and  herself  in  failing  to  look  or  listen  she  cannot  recover  because  of  con- 
tributory negligence;  Bracken  v.  Pennsylvania  R.  Co.  32  Pa.  Super.  Ct.  34,  hold- 
ing that  a  12  year  old  boy  may  be  guilty  of  contributory  negligence  in  riding 
across  a  track  with  driver  of  wagon  who  fails  to  stop,  look  and  listen. 

Cited  in  footnotes  to  Howe  v.  Minneapolis,  St.  P.  &  S.  Ste.  M.  R.  Co.  30  L.  R. 
A.  684,  which  holds  negligence  of  one  riding  with  another  when  injured  at  rail- 
road crossing  a  question  for  jury;  Western  &  A.  R.  Co.  v.  Ferguson,  54  L.  R.  A. 
802,  which  holds  failure  to  look  when  within  30  feet  of  track  does  not  prevent  re- 
covery. 

Distinguished  in  Carr  v.  Easton,  142  Pa.  143,  21  Atl.  822,  holding  guest  in 
sleigh  overturned  in  turning  aside  to  pass  approaching  team  not  guilty  of  con- 
tributory negligence,  as  matter  of  law,  if  danger  not  patent;  Cahill  v.  Cincinnati, 
N.  O.  &  T.  P.  R,  Co.  92  Ky.  357,  18  S.  W.  2,  holding  that  driver's  negligence 
•cannot  be  imputed  to  guest;  O'Toole  v.  Pittsburgh  &  L.  E.  R.  Co.  158  Pa.  107, 
22  L.  R.  A.  609,  38  Am.  St.  Rep.  830,  27  Atl.  737,  holding  crippled  passenger  on 
street  car  approaching  railroad  crossing,  which  stopped  75  feet  away  and  again 
started,  under  no  duty  to  ascertain  safety  of  crossing  and  to  jump  if  dangerous; 
Baltimore  &  O.  R.  Co.  v.  State,  79  Md.  344,  47  Am.  St.  Rep.  415,  29  Atl.  518,  hold- 
ing invited  guest  of  able  and  competent  driver  of  quiet  horse  not  chargeable  with 
driver's  negligence,  where  himself  without  blame;  Howe  v.  Minneapolis,  St.  P.  & 
S.  Ste.  M.  R.  Co.  62  Minn.  81,  30  L.  R.  A.  688,  54  Am.  St.  Rep.  616,  64  N.  W.  102, 
holding  negligence  of  guest  riding  with  driver  over  whom  he  had  no  control,  for 
jury,  where  injury  avoidable  by  exercise  of  due  care  by  one  in  control. 

6  L.  R,  A.  146,  DUBE  v.  BEAUDRY,  150  Mass.  448,  15  Am.  St.  Rep.  228,  23 

N.  E.  222. 
Minor's    disafltrmance. 

Cited  in  Morse  v.  Ely,  154  Mass.  459,  26  Am.  St.  Rep.  263,  28  N.  E.  577,  and 
White  v.  New  Bedford  Cotton  Waste  Corp.  178  Mass.  24,  59  N".  E.  642,  holding 
that  minor's  right  to  disaffirm  does  not  depend  upon  putting  the  other  party  in 
statu  quo;  Gillis  v.  Goodwin,  180  Mass.  140,  91  Am.  St.  Rep.  265,  61  N.  E.  813, 
holding  that  minor's  contract  to  purchase  bicycle  may  be  disaffirmed  without 
allowing  for  rent  and  use,  or  putting  other  party  in  statu  quo. 

Cited  in  notes  (15  L.  R.  A.  213)  as  to  infant's  right  to  repudiate  contract  for 
services  and  sue  on  quantum  meruit;  (26  L.  R.  A.  181)  as  to  necessity  of  return- 
ing consideration  in  order  to  disaffirm  infants'  contracts. 

6  L.  R.  A.  147,  WEEKS  v.  HOBSOX,  150  Mass.  377,  23  X.  E.  215. 
Cy  pres  doctrine. 

Cited  in  Atty.  Gen.  v.  Briggs,  164  Mass.  568,  42  N.  E.  118,  holding  that  be- 
quest for  support  of  school  in  specified  district  should,  on  abolishment  of  such 
district,  be  applied  to  maintenance,  as  near  as  possible,  of  school  in  same  terri- 
tory, though  it  accommodates  children  from  other  territory  also;  Amory  v.  Atty. 
Gen.  179  Mass.  105,  60  N.  E.  391,  holding  that,  upon  failure  of  devise  of  lands 
for  charitable  purpose,  they  may  be  sold  and  income  of  proceeds  devoted  to 
devisee's  general  purposes,  or,  when  possible,  to  fulfilment  of  testator's  specific 
plan;  Lackland  v.  Walker,  151  Mo.  255,  52  S.  W.  414,  holding  that  equity  may 
decree  sale  of  lands  devised  for  charitable  purpose,  when  necessary  to  adminis- 
tration of  trust,  although  declared  inalienable;  Tacoma  v.  Tacoma  Cemetery,  28 
Wash.  246,  68  Pac.  723,  holding  that  trustees  may  sell  land  donated  for  cemetery, 
although  donor  intended  it  to  be  used  instead  of  sold;  Teele  v.  Bishop  of  Derry, 
168  Mass.  343,  38  L.  R.  A.  630,  60  Am.  St.  Rep.  401,  47  N.  E.  422,  holding  failure 


1019  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  149 

of  purpose  of  bequest  for  building  chapel,  as  nonsupportable,  will  not  justify  di- 
version to  repair  neighboring  parish  church,  or  for  parish  house,  or  graveyard, 
or  general  benefit;  Boston  v.  Doyle,  184  Mass.  382,  68  N.  E.  851,  holding  that, 
upon  abolition  of  class  of  persons  designated  as  managers  of  charitable  trust, 
equity  will  appoint  other  managers;  Old  Ladies'  Home  v.  Hoffman,  117  Iowa,  719, 
89  N.  W.  1066,  holding  orphan  asylum,  near  but  not  within  corporate  limits,  en- 
titled to  bequest  to  asylum  in  certain  city,  if  any  in  existence;  Boston  v.  Doyle, 
184  Mass.  382,  68  N.  E.  851,  holding  that  on  a  failure  of  trustees  for  a  public 
charity  caused  by  lack  of  provision  for  such  contingency,  it  is  duty  of  court  of 
equity  to  supply  the  deficiency  as  near  to  intent  of  testator  as  possible;  Codman 
v.  Brighain,  187  Mass.  313,  105  Am.  St.  Rep.  394,  72  X.  E.  1008,  holding  that  on 
failure  of  incorporation  to  execute  a  charitable  trust,  the  gift  does  not  fail  the 
court  supplying  another  method  of  administration  to  accomplish  substantially 
same  result;  Richardson  v.  Mullery,  200  Mass.  250,  86  X.  E.  319,  holding  that 
on  refusal  of  government  to  accept  trust  in  favor  of  life  saving  station  and  those 
wrecked  near  by  the  probate  court  may  administer  the  trust  in  some  adequate 
way  in  conformance  with  the  general  charitable  purpose  of  testator;  Ely  v.  Atty. 
Gen.  202  Mass.  547,  89  N.  E.  166,  holding  will  of  testator  to  establish  a  home 
would  not  fail  because  of  insufficiency  of  funds,  if  the  fund  could  be  given  in  aid 
of  an  existing  similar  home;  Grimke  v.  Atty.  Gen.  206  Mass.  52,  91  N.  E.  899; 
Pierce  v.  Stevens,  205  Mass.  223,  91  X.  E.  319, — to  the  point  if  establishment 
of  charitable  corporation  to  carry  out  gift  under  will  court  may  apply  doctrine  of 
cy  pres  and  provide  other  method  of  administering  charity. 

Cited  in  footnotes  tc  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  other 
mode  for  taking  effect  of  charity  will  be  provided  if  mode  pointed  out  in  will 
fails;  Kelly  v.  Xichols,  19  L.  R,  A.  413,  which  holds  doctrine  of  cy  pres  inappli- 
cable to  bequest  not  made  to  definite  charitable  use;  Gladding  v.  St.  Matthew's 
Church,  65  L.R.A.  225,  which  holds  that  legacy  to  a  particular  church  will  not 
be  administered  cy  pres  after  termination  of  its  existence  in  behalf  of  deaf  mutes 
for  whose  benefit  the  church  was. 

Cited  in  notes  (14  L.R.A.  (X.S.)  145)  on  enforcement  of  general  bequest  for 
charity  or  religion;  (63  Am.  St.  Rep.  262)  on  what  are  charitable  uses  or  trusts. 

6  L.  R.  A.  149,  BULLITT  v.  FARRAR,  42  Minn.  8,   18  Am.   St.  Rep.  485,  43 

N.  W.  566. 
Representations    without    knowledge. 

Cited  in  Carlton  v.  Hulett,  49  Minn.  319,  51  N.  W.  1053,  holding  unqualified 
false  representations  fraudulent;  Hamlin  v.  Abell,  120  Mo.  205,  25  S.  W.  516; 
Snively  v.  Meixsell,  97  111.  App.  372;  Knappen  v.  Freeman,  47  Minn.  495,  50 
N.  W.  533,  —  holding  unqualified  affirmation  amounts  to  affirmation  on  per- 
sonal knowledge;  Charles  P.  Kellogg  Co.  v.  Holm,  82  Minn.  419,  85  X.  W.  159, 
holding  it  immaterial  whether  merchant  knew  statements  as  to  his  finances  were 
false  and  fraudulent;  Hadcock  v.  Osmer,  153  X.  Y.  610,  47  X.  E.  923,  holding  false 
representations,  without  knowledge,  actionable;  Gerner  v.  Yates,  61  Xeb.  107, 
84  X.  W.  596,  holding  assertion  of  fact  as  of  personal  knowledge,  without  such 
knowledge,  wuful  falsehood;  Martin  v.  Eagle  Development  Co.  41  Or.  455,  69 
Pac.  216,  holding  representations  which  evidently  did  not  mislead  purchaser,  no 
basis  for  claim  of  fraud;  Westerman  v.  Corder,  86  Kan.  242,  39  L.R.A. (X.S.)  501, 
119  Pac.  868;  Freeman  v.  F.  P.  Harbaugh  Co.  114  Minn.  286,  130  X.  W.  1110; 
Morrow  v-.  Bonebrake,  84  Kan.  729,  34  L.R.A.  (X.S.)  1150,  115  Pac.  585,— hold- 
ing that  seller  who  makes  positive  statements  not  known  by  him  to  be  true, 
upon  which  purchaser  relies,  and  which  statements  are  false,  is  answerable  to 
purchaser. 


6  L.R.A.  149]  L.  R.  A.  CASES  AS  AUTHORITIES.  102O 

Cited  in  notes  (11  L.  R.  A.  197)  on  action  for  deceit  and  fraudulent  representa- 
tions in  case  of  breach  of  warranty;   (35  L.  R.  A.  431)  on  expression  of  opinion  as 
fraud;    (18  Am.  St.  Rep.  560)   on  necessity  for  false  representations  being  made 
with  knowledge  of  their  falsity. 
Fraudulent    intent. 

Cited  in  Martin  v.  Eagle  Development  Co.  41  Or.  455,  69  Pac.  216,  holding 
false  representations  to  purchaser  of  property  not  actionable  where  he  was  not 
misled;  Watson  v.  Jones,  41  Fla.  253,  25  So.  678,  upholding  declaration  alleging 
actual  knowledge  and  constructive  knowledge  of  falsity  of  statements;  Holt  v. 
Sims,  94  Minn.  159,  102  X.  W.  386,  holding  it  necessary  to  allege  intent  to  deceive 
as  well  as  prove  the  deceit,  upon  which  purchaser  relies. 
False  statements  Innocently  made. 

Cited  in  Browning  v.  National  Capital  Bank,  13  App.  D.  C.  17,  holding  belief 
in  truth  of  false  representation  no  defense;  Adams  v.  Reed,  11  Utah,  504,  40  Pac. 
720,  and  Vaughn  v.  Smith,  34  Or.  57,  55  Pac.  99,  rescinding  conveyance  because  of 
false  representations  as  to  title,  although  innocently  made. 

6  L.  R.  A.  152,  O'SHIELDS  v.  GEORGIA  P.  R.  CO.  83  Ga.  621,  10  S.  E.  268. 
General  statute  of  limitations  and  limitations  of  statutory  right. 

Cited  in  Brunswick  Terminal  Co.  v.  National  Bank,  48  L.  R.  A.  632,  40  C.  C.  A. 
25,  99  Fed.  638,  Reversing  88  Fed.  610,  holding,  in  action  in  Maryland  to  en- 
force liability  of  stockholder  in  Georgia  corporations,  Georgia  statute  of  limita- 
tions governs;  Theroux  v.  Northern  P.  R.  Co.  12  C.  C.  A.  53,  27  U.  S.  App.  508, 
64  Fed.  85,  holding  limitation  in  statute  of  state  giving  right  of  action  governs; 
Williams  v.  St.  Louis  &  S.  F.  R.  Co.  123  Mo.  583,  27  S.  W.  387,  and  Munos  v. 
Southern  P.  Co.  2  C.  C.  A.  165,  2  U.  S.  App.  222,  51  Fed.  190,  holding  that  unless 
statute  giving  right  of  action  for  tort  prescribes  limitation,  law  of  forum  gov- 
erns; Poff  v.  New  England  Teleph.  &  Teleg.  Co.  72  N.  H.  166,  55  Atl.  891,  holding 
plaintiff  in  administrator's  action  for  personal  injuries  to  decedent  must  show 
action  brought  within  time  limited;  Gulledge  v.  Seaboard  Air  Line  R.  Co.  348  N. 
C.  570,  62  S.  E.  732,  holding  special  limitation  inhering  in  the  right  is  not  ex- 
tended by  causes  enumerated  in  the  general  statutes;  Ross  v.  Kansas  City  South- 
ern R.  Co.  34  Tex.  Civ.  App.  587,  79  S.  W.  626,  holding  where  statute  creating 
cause  of  action  also  prescribes  limitation  to  the  right  such  limitation  governs  in 
what  ever  form  the  action  is  brought;  Gregory  v.  Southern  P.  Co.  157  Fed.  119r 
holding  a  limitation  on  which  a  cause  of  action  is  conditioned  pertains  to  the 
right  and  a  general  limitation  pertains  to  remedy  and  an  action  so  limited  is 
governed  by  lex  forum. 

Cited  in  footnote  to  Allen  v.  Allen,  16  L.  R.  A.  647,  which  holds  right  to  redeem 
land  from  mortgage  or  absolute  deed  given  as  security  governed  by  rule  in  state 
where  land  is  located,  that  right  is  barred  if  debt  is  barred.  - 

Cited  in  note  (48  L.  R,  A.  638)  as  to  when  statute  of  limitations  will  govern 
action  in  another  state  or  country. 

Distinguished  in  Montague  v.  Cummings,  119  Ga.  140,  45  S.  E.  979,  holding 
general   limitation   law   of   forum   applies   to   action  given   by   foreign   law   and 
not  specially  limited  thereby  though  the  action  is  not  similar  to  any  domestic 
one. 
Conflict  of  laws. 

Cited  in  Atlanta,  K.  &  N.  R.  Co.  v.  Smith,  1  Ga.  App.  168,  58  S.  E.  106, 
holding  right  to  amend  governed  by  lex  fori,  being  remedial  and  pertaining  solely 
to  procedure. 

Cited  in  note  (5  Eng.  Rul.  Gas.  945)   on  law  governing  remedies. 


1021  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  155 

Comity. 

Cited  in  Southern  R.  Co.  v.  Decker,  5  Ga.  App.  30,  62  S.  E.  678,  holding  a 
statute  of  another  state  giving  different  measure  of  damages  is  not  violative  of 
public  policy  and  will  be  recognized. 
Motion  to   dismiss. 

Cited  in  Murray  v.  McGuire,  129  Ga.  271,  58  S.  E.  841,  holding  that  motion  in 
nature  of  general  demurrer  in  dismissal  may  be  made  by  defendant  where  no 
cause  of  action  is  set  out. 

6  L.  R.  A.  155,  ADAMS  COUNTY  v.  QUIXCY,  130  111.  566,  22  N.  E.  624. 
Exemption    from    taxation    or    local    assessments. 

Cited  in  Board  of  Improvement  v.  School  District,  56  Ark.  360,  16  L.  R.  A.  421, 
35  Am.  St.  Rep.  108,  19  S.  W.  969,  holding  school  property  exempt  from  local 
assessment;  Chicago,  use  of  Schools,  v.  Chicago,  207  111.  43,  69  N.  E.  580,  holding 
school  property  outside  of  section  16  donated  by  Congress,  liable  to  special  assess- 
ment, whether  occupied  for  school  purposes,  vacant,  or  used  as  source  of  revenue ; 
Franklin  County  v.  Ottawa.  49  Kan.  757,  33  Am.  St.  Rep.  396,  31  Pac.  788,  hold- 
ing county  taxable  for  improvement  of  street  in  front  of  courthouse;  Edwards  & 
W.  Constr.  Co.  v.  Jasper  County,  117  Iowa,  373,  94  Am.  St.  Rep.  301,  90  X.  W. 
1006,  holding  public  square,  occupied  by  courthouse,  subject  to  assessment  for 
paving  bounding  streets;  Washburn  Memorial  Orphan  Asylum  v.  State,  73  Minn. 
346,  76  N.  W.  204,  holding  charitable  institutions  not  exempt  from  special  local 
improvement  assessments ;  New  Orleans  v.  Warner,  175  U.  S.  140,  44  L.  ed.  106, 
20  Sup.  Ct.  Rep.  44,  holding  local  assessments  against  city  of  New  Orleans  for 
drainage  valid;  Yates  v.  Milwaukee,  92  Wis.  358,  66  N.  W.  248,  holding  land 
exempted  from  taxation  not  exempted  from  local  assessment;  Atlanta  v.  First 
Presby.  Church,  86  Ga.  742,  12  L.  R.  A.  855,  13  S.  E.  252,  holding  church  property 
not  exempt  from  local  assessment;  Supreme  Lodge  M.  A.  F.  O.  v.  Effingham 
County,  223  111.  56,  79  N.  E.  23,  7  A.  &  E.  Ann.  Cas.  38,  holding  money  of 
fraternal  benefit  associations  used  exclusively  for  purpose  of  organization  not 
entitled  to  exemption  from  taxation;  Franklinton  v.  Washington  Parish,  126  La. 
3,  52  So.  172,  holding  that  exemption  of  court  house  square  from  taxation  does 
not  exempt  it  from  special  assessment  for  paving  sidewalks  in  front  thereof; 
Newberry  v.  Detroit,  164  Mich.  413,  32  L.R.A.(N.S.)  306,  129  N.  W.  699;  Whit- 
taker  v.  Deadwood,  23  S.  D.  543,  139  Am.  St.  Rep.  1076,  122  N.  W.  590, — 
holding  that  assessment  for  local  improvements  is  not  taxation  within  meaning 
of  statute  exempting  state,  county  or  municipal  property  from  taxation. 

Cited  in  notes  (12  L.  R.  A.  852)  on  exemption  of  church  property  from  special 
assessment  under  exemption  from  taxes  generally;  (35  L.  R,  A.  38)  on  liability 
to  local  assessments  for  benefits  to  property  exempt  from  general  taxation;  (33 
Am.  St.  Rep.  410)  on  taxation  and  assessment  of  public  property;  (132  Am.  St. 
Rep.  300,  307,  312,  315,  316,  323)  on  exemption  from  taxation  or  assessment  of 
lands  owned  by  governmental  bodies,  or  in  which  they  have  an  interest;  (44  L.  ed. 
U.  S.  97)  on  liability  of  public  property  to  assessment  for  public  improvements; 
(22  Eng.  Rul.  Cas.  448)  on  exemption  of  public  property  from  taxation. 

Distinguished  in  Re  Mt.  Vernon,  147  111.  363,  23  L.  R.  A.  810,  35  N.  E.  533, 
holding  property  of  state  exempt  from  special  taxation. 

Disapproved  in  Re  Howard  Ave.  North.  44  Wash.  65,  86  Pac.  1117,  12  A.  &  E. 
Ann.  Cas.  417,  holding  that  public  school  property  may  be  taxed  for  benefits 
received  from  local  improvements  though  there  be  no  statute  expressly  au- 
thorizing taxation  of  such  property. 


6  L.R.A.  155]  L.  R.  A.  CASES  AS  AUTHORITIES.  1022- 

.  Constitutionality    of    local    assessments. 

Cited  in  Chicago  &  A.  R.  Co.  v.  Joliet,  153  111.  654,  39  X.  E.  1077,  and  Chicago 
&  N.  W.  R.  Co.  v.  Elmhurst,  165  111.  155,  46  N.  E.  437,  holding  special  taxation 
for  local  improvement,  in  proportion  to  frontage,  constitutional. 

Cited  in  note    (28  L.R.A.(X.S.)    1134,  1141,  1142)    on  constitutionality  of  as- 
sessments for  improvements  by  front-foot  rule. 
Xature  of  local  assessment. 

Cited  in  Springer  v.  Walters,  139  111.  422,  28  N.  E.  761,  and  Chicago  &  A.  R. 
Co.  v.  Joliet,  153  111.  654,  39  N.  E.  1077,  holding  special  taxation  for  local  im- 
provements proper  exercise  of  taxing  power;  Seanor  v.  YVhatcom  County,  13  Wash. 
59,  42  Pac.  552,  holding  local  assessment  not  a  tax  within  Constitution  forbidding 
legislature  to  tax  municipal  corporations  for  municipal  purposes. 

Cited  in  footnotes  to  Denver  v.  Knowles,  17  L.  R.  A.  135,  which  holds  local 
assessments  not  a  "tax;"  Pettcbone  v.  Smith,  17  L.  R.  A.  423,  which  holds  sewer 
and  street  assessments  not  within  covenant  for  payment  of  all  taxes  by  lessee. 

Cited  in  notes   (8  L.  R.  A.  369)   on  constitutional  restriction  as  to  valuation, 
equality,  and  uniformity  in  taxation;   (23  L.  R.  A.  808,  810)   on  municipal  assess- 
ment of  state  property. 
Oefiniteness   of   ordinance   for  local   Improvements. 

Cited  in  Culver  v.  Chicago,  171  111.  402,  49  N.  E.  573,  and  Hynes  v.  Chicago, 
175  111.  57,  51  N.  E.  705,  holding  ordinance  giving  nature,  character,  and  de- 
scription of  improvement  with  reasonable  certainty,  valid;  Woods  v.  Chicago,  135 
111.  585,  26  N.  E.  608,  holding  ordinance  directing  paving  of  certain  street  ex- 
cept a  16-foot  strip  in  middle  sufficiently  definite  as  to  width;  Dickey  v.  Chicago, 
164  111.  39,  45  N.  E.  537,  holding  width  of  street  need  not  be  stated,  when  street 
is  of  known  and  fixed  width;  The  People  ex  rel.  Kochersperger  v.  Markley,  166 
111.  53,  46  N.  E.  742,  holding  width  need  not  be  stated  where  ordinance  provides 
for  paving  entire  street;  Houston  v.  Chicago,  191  111.  562,  61  X.  E.  396,  and  Givins 
v.  Chicago,  188  111.  355,  58  N.  E.  912,  holding  ordinance  from  which  width  of 
paving  easily  ascertainable  valid;  People  ex  rel.  Whittock  v.  Willison,  237  111. 
588,  86  N.  E.  1094,  on  definiteness  required  in  a  city  ordinance  providing  for  a 
local  improvement;  Chicago  v.  Sonkup,  245  111.  638,  92  N.  E.  564,  as  referring 
to  definiteness  of  description  of  improvement  required  in  the  ordinance  as  dis- 
tinguished from  description  required  in  resolution. 
Scope  of  ordinance. 

Cited  in  Payne  v.  South  Springfield,  161  111.  290,  44  N.  E.  105,  holding  ordi- 
nance providing  for  main  sewer  and  branches  valid;  Haley  v.  Alton,  152  111.  117, 
38  N.  E.  750,  sustaining  ordinance  for  paving  three  streets  of  different  widths; 
Lewis  v.  Albertson,  23  Ind.  App.  155,  53  N.  E.  1071,  holding  one  resolution  may 
provide  for  improvement  of  two  streets;  Re  Fourth  Street,  33  Pa.  Co.  Ct.  207,  18 
Pa.  Dist.  R.  991,  holding  an  ordinance  of  a  city  of  third  class  for  opening  and 
grading  several  streets  not  void  for  containing  more  than  one  subject. 
Proper  exercise  of  power  to  make  local  improvements. 

Cited  in  Carlyle  v.  Clinton  County,   140  111.  516,  30  X.  E.  782,  holding  ordi- 
nance for  levy  of  special  tax  for  improvement,  after  completion,  void;  Chicago  & 
A.  R.  Co.  v.  Joliet,  153  111.  654,  39  X.  E.  1077,  holding  council's  determination  of 
benefits  from  local  improvement  conclusive. 
Construction   of   words   in   statute. 

Cited  in  Langlois  v.  Cameron,  201  111.  306,  66  N.  E.  332,  and  Bloomington  v. 
Reeves,  177  111.  166,  52  X.  E.  278,  construing  "contiguous"  to  mean  "actual  or 
close  contact,  touching,  etc." 


1023  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  159 

Amendment. 

Cited  in  Gilberts  v.  Rabe,  49  111.  App.  420,  holding  village  board  has  power  to 
amend  record  of  proceedings  to  conform  to  facts;  People  ex  rel.  Reid  v.  Zellar,  224 
111.  413,  79  X.  E.  697,  holding  commissioners  of  drainage  district  may  properly, 
amend  records  to  conform  to  facts,  such  deficiency  therein  being  caused  by  over- 
sight. 

6  L.  R.  A.  159,  NOWLIN  v.  WHIPPLE,  120  Ind.  596,  22  X.  E.  669. 
It  iuli  i    by  prescription. 

Cited  in  Dyer  v.  Eldridge,  136  Ind.  658,  36  N.  E.  522,  holding  boundary  of 
lands  fixed  by  line  fence  acquiesced  in  for  twenty  years;  Davis  v.  Cleveland,  C.  C. 
&  St.  L.  R,  Co.  140  Ind.  470,  39  N.  E.  495,  holding  easement  not  acquired  by  use 
without  claim  of  right  or  acquiescence  of  owner  of  servient  estate;  Cargar  v.  Fee, 
140  Ind.  578,  39  N.  E.  93,  holding  instruction  that  right  of  way  could  be  acquired 
in  twenty  years,  by  sufferance  of  owner,  erroneous;  Pittsburgh,  C.  C.  &  St.  L.  R> 
Co.  v.  Crown  Point,  150  Ind.  552,  50  N.  E.  741,  holding  presumption  of  dedication 
after  public  use  for  thirty  years  not  affected  because  landowner  also  used  high- 
way; Baltimore  &  0.  S.  W.  R.  Co.  v.  Seymour,  154  Ind.  22,  55  N.  E.  953,  holding- 
right  of  way  over  railroad  property  not  acquired  by  use  which  is  neither  ex- 
clusive nor  adverse;  Mitchell  v.  Bain,  142  Ind.  607,  42  N.  E.  230,  holding  burden 
upon  owner  of  land  denying  prescriptive  right  by  twenty  years'  enjoyment,  to 
prove  that  easement  over  it  was  under  license,  indulgence,  or  special  contract; 
Terre  Haute  &  I.  R.  Co.  v.  Zehner,  15  Ind.  App.  282,  42  N.  E.  756,  holding  ease- 
ment cannot  be  acquired  without  active  interference  with  dominant  owner's  legal 
rights;  Xull  v.  Williamson,  166  Ind.  546,  78  N.  E.  76,  holding  an  easement  in.: 
right  of  way  may  not  be  acquired  by  prescription  when  such  way  was  opened 
up  by  owner  for  his  own  use,  and  to  permit  access  of  customers. 

Cited  in  footnote  to  Flickinger  v.  Shaw,  11  L.  R.  A.  134,  which  holds  vested-" 
right  of  way  for  ditch  acquired  by  its  construction  under  oral  agreement. 

Cited  in  notes  (8  L.  R.  A.  575)  on  easement  and  servitude  in  flowage  of  water; 
(8  L.  R,  A.  617)  on  what  constitutes  easement;  (10  L.  R.  A.  484)  on  right  by 
prescription  to  use  of  land  of  another;  (8  L.R.A.  (X.S.)  151)  on  burden  of  show- 
ing use  upon  which  easement  by  prescription  is  claimed  was  permissive. 

Distinguished  in  Pitser  v.  McCreery,  172  Ind.  674,  88  N.  E.  303,  holding  a  con- 
tinued use  by  public  for  required  period  under  a  claim  of  right  of  private  prop- 
erty as  a  highway;  with  intervening  interference  and  dispute  of  use,  but  not 
of  right  to  use  becomes  an  adverse  right  which  ripens  into  a  public  highway  by- 
user. 
Requisites  of  claim  of  right. 

Cited  in  Rennert  v.  Shirk,  163  Ind.  548,  72  N.  E.  546,  holding  that  a  "claim  of 
right"  in  adverse  possession  may  be  shown  by  positive  acts  of  ownership  and  need 
not  be  orally  declared;  Small  v.  Binford,  41  Ind.  App.  445,  83  N.  E.  507,  holding 
a  claim  of  way  over  land  not  inconsistent  with  ownership. 
Irrevocable   license. 

Cited  in  Ferguson  v.  Spencer,  127  Ind.  68,  25  X.  E.  1035,  holding  action  for 
damages  maintainable  for  digging  up  drains  constructed  under  license  for  valu- 
able consideration;  Buck  v.  Foster,  147  Ind.  532,  62  Am.  St.  Rep.  427,  46  N.  E. 
920,  holding  executed  license  cannot  be  revoked  without  at  least  placing  licensee 
in  statu  quo;  Steinke  v.  Bentley.  6  Ind.  App.  667,  34  X.  E.  97,  holding  that, 
executed  agreement  to  reconstruct  ditch  created  easement  appurtenant  to  land: 
Joseph  v.  Wild.  146  Ind.  253.  45  X.  E.  467,  holding  executed  license  to  build  out- 
side stairway  irrevocable;  Indianapolis  &  C.  Traction  Co.  v.  Arlington  Teleph. 


6  L.R.A.  359]  L.  R.  A.  CASES  AS  AUTHORITIES.  1024 

Co.  47  Ind.  App.  GG3,  95  N.  E.  280,  holding  that  irrevocable  easement  results  from 
oral  license  to  telephone  company  to  place  its  lines  on  private  grounds  where  it 
expends  money  in  so  placing  it. 

Cited  in  footnotes  to  Pierce  v.  Cleland,  7  L.R.A.  752,  which  holds  license  to  use 
property  irrevocable  after  money  expended;  Howes  v.  Barmon,  69  L.R.A.  568, 
which  gives  distinction  between  license  and  easement. 

Cited  in  notes  ( 10  L.  R.  A.  487)  on  effect  of  executed  license;  (49  L.  R.  A.  521) 
on  revocability  of  license  to  maintain  burden  on  land  after  licensee  has  in- 
curred expense  in  creating  burden;  (31  Am.  St.  Rep.  718,  719;  33  Am.  St.  Rep. 
543 ;  16  Eng.  Rul.  Cas.  81 )  on  revocability  of  license. 

6  L.  R.  A.  101,  PEOPLE  ex  rel  BROKAW  v.  HIGHWAY  COMES.  130  111.  482, 

22  N.  E.  596. 
Additional    remedy. 

Cited  in  People  ex  rel.  Kocourek  v.  Chicago,  193  111.  568,  62  N.  E.  187,  holding 
existence  of  another  specific  legal  remedy  not  a  bar  to  mandamus. 
Duty  to  remove  obstructions. 

Cited  in  Jennings  v.  Scott,  87  111.  App.  461,  holding  it  clear  duty  of  highway 
commissioners  to  remove  obstructions;  People  ex  rel.  Bartlett  v.  Busse,  238  111. 
600,  28  L.R.A.  (N.S.)  250,  87  N.  E.  840,  on  mandamus  to  compel  removal  of  high- 
way obstruction  by  commissioners  under  specific  statutory  duty. 

Cited  in  footnote  to  Costello  v.  State,  35  L.R.A.  303,  which  holds  permanent 
appropriation  of  part  of  sidewalk  for  fruit  stand  indictable  nuisance. 

Cited  in  note  (39  L.  R.  A.  661)  on  municipal  power  over  nuisances  affecting 
highways  and  waters. 

Distinguished  in  People  ex  rel.  Dyett  v.  McMurray,  27  Colo.  280,  61  Pac.  226, 
holding  abutting  owner  cannot  by  mandamus  compel  city  council  to  remove  rail- 
way tracks  from  street. 
Construction    of    words    "may"    and    "shall." 

Cited  in  Rothschild  v.  New  York  L.  Ins.  Co.  97  111.  App.  553,  holding  words 
"may"  and  "shall"  should  be  construed  to  give  expression  to  legislature's  inten- 
tion; Doane  v.  Omaha,  58  Neb.  817,  80  N.  W.  54,  construing  "may,"  in  ordinance 
directing  service  of  notice,  as  "must;"  McLeod  v.  Scott,  21  Or.  110,  26  Pac.  1061, 
construing  "may,"  in  statute  for  issuing  liquor  licenses,  to  mean  "must;"  Binder 
v.  Longhorst,  234  111.  587,  85  N.  E.  400,  holding  that  in  drainage  act  providing 
that  commissioners  "may"  do  certain  acts  to  protect  land  owners  of  the  district 
from  floods  the  word  "may"  will  be  construed  as  meaning  "shall"  imposing  a 
positive  duty;  Newcomb  v.  Champaign  County,  145  111.  App.  562,  construing 
"may"  to  mean  "shall"  or  "must"  in  statute  relating  to  commencement  of  ac- 
tions against  counties;  Jones  v.  Madison  County,  137  N.  C.  592,  50  S.  E.  291, 
holding  that  act  "authorizing  and  empowering"  county  to  issue  bonds  to  fund 
indebtedness  is  mandatory;  Re  License  to  Practice  Law,  67  W.  Va.  222,  67  S.  E. 
597,  holding  that  word  "may"  in  statute  authorizing  granting  of  license  to  prac- 
tice law  is  to  be  construed  in  permissive  sense  and  not  as  synonomous  with  word 
"shall;"  Equitable  Life  Assur.  Soc.  v.  Host,  124  Wis.  672,  102  N.  W.  579,  4  A. 
&  E.  Ann.  Cas.  413,  construing  "may"  with  respect  to  distribution  of  accumula- 
tions as  conferring  discretion;  and  "shall"  with  respect  to  protection  of  policy 
holders  as  imposing  an  imperative  duty. 

Cited  in  notes  (10  L.  R.  A.  499)  on  construction  of  "may"  and  "shall"  in 
statute;  (12  L.  R.  A.  355)  on  construction  of  words  "may,"  "shall,"  and  "must;" 
(21  L.  R.  A.  581)  on  discretion  in  granting  liquor  licenses  implied  from  statutory 


1025  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  164 

construction;    (5  L.R.A. (N.S.)   342)  on  "may"  in  constitutional  or  statutory  pro- 
vision as  mandatory. 

Distinguished   in   Northwestern   Traveling   Men's   Asso.   v.   Crawford,    126   111. 
App.  480,  holding  "may"  does  not  mean  "shall"  nor  is  it  so  construed  in  private 
contracts. 
Discretionary   powers. 

Cited  in  People  ex  rel.  Corey  v.  Highway  Comrs.  158  111.  208,  41  N.  E.  1105, 
holding  discretion  of  highway  commissioners,  if  abused,  controllable  by  manda- 
mus; Peotone  &  M.  Union  Drainage  Dist.  No.  1  v.  Adams,  163  111.  432,  45  X.  E. 
266,  Affirming  61  111.  App.  442,  holding  discretion  of  commissioners  as  to  details  of 
their  work  not  a  bar  to  mandamus;  People  ex  rel.  Corey  v.  Highway  Comrs.  53 
111.  App.  448,  affirming  judgment  refusing  mandamus  where  duty  of  public  officer 
was  discretionary. 
Right  to  mandamus. 

Cited  in  Buckley  v.  Eisendrath,  58  111.  App.  366;  Hunt  v.  Highway  Comrs.  43 
111.  App.  283;  North  v.  University  of  Illinois  Trustees,  137  111.  302,  27  N.  E.  54, 
— holding  mandamus  writ  should  only  be  issued  in  clear  case;  People  ex  rel. 
Akin  v.  Kipley,  171  111.  91,  41  L.  R.  A.  791,  49  N.  E.  229,  holding  mandamus 
will  lie  to  enforce  public  duty  without  showing  demand  and  refusal ;  State  ex  rel. 
Schermerhorn  v.  McCann,  107  Wis.  352,  83  N.  W.  647,  holding  mandamus  to 
remove  obstructions  will  not  lie,  where  question  whether  road  is  highway  is 
doubtful;  Harrison  v.  People,  125  111.  App.  182,  holding  mandamus  to  lie  on 
refusal  of  mayor  to  grant  license  the  applicant  having  complied  with  all  the 
statutory  conditions  to  the  right  of  a  grant. 

Cited  in  footnotes  to  State  ex  rel.  Fleming  v.  Crawford,  14  L.  R.  A.  253,  which 
grants  mandamus  to  compel  Secretary  of  State  to  seal  appointment  of  United 
States  Senator;  People  ex  rel.  Daley  v.  Rice,  14  L.  R.  A.  644,  which  authorizes 
mandamus  to  compel  canvassing  board  to  disregard  illegal  return. 

Cited  in  note  (11  L.  R.  A.  763)  on  mandamus  to  control  executive  discretion. 
Rules    of    construction. 

Cited  in  note  (10  L.  R.  A.  841)  on  rules  of  construction. 

6  L.  R.  A.  164,  SCHNEIDER  v.  TURNER,  130  111.  28,  22  N.  E.  497. 
Acts  on   mi  m  l>!  i  nu   in  options. 

Cited  in  Booth  v.  Illinois,  184  U.  S.  427,  46  L.  ed.  625,  22  Sup.  Ct.  Rep.  425, 
sustaining  act  prohibiting  future  operations  in  grain  stock  commodities ;  Booth 
v.  People,  186  111.  48,  50  L.  R.  A.  763,  footnote  p.  762,  78  Am.  St.  Rep.  229.  57  N. 
E.  798,  upholding  act  against  gambling  in  grain  and  commodities;  Kruse  v.  Ken- 
nett,  69  111.  App.  571,  holding  penal  statute  against  gambling  at  cards  cannot  be 
extended  to  gambling  options  on  grain;  Peterson  v.  Currier,  62  111.  App.  169, 
holding  bonds  a  commodity  within  statute  against  gambling  contracts. 
What  are  grumbling  contracts. 

Cited  in  Richter  v.  Frank,  41  Fed.  861,  holding  contract  of  sale  of  stocks  with 
option  to  purchaser  to  resell  not  gambling  contract;  Clews  v.  Jamieson,  182  U.  S. 
494.  45  L.  ed.  1198,  21  Sup.  Ct.  Rep.  845,  Reversing  38  C.  C.  A.  481,  96  Fed.  654, 
upholding  sale  of  stock  not  owned  at  time;  Champlin  v.  Smith,  164  Pa.  488,  30 
Atl.  447,  sustaining  purchases  and  sales  of  grain  by  broker,  though  none  actually 
delivered  because  broker  ordered  to  sell  before  time  for  delivery;  Ubben  v.  Bin- 
nian,  78  111.  App.  334,  holding  void  a  contract  of  sale  of  stock  with  option  to  re- 
purchase within  specified  time;  Schlee  v.  Guckenheimer,  179  111.  596,  54  N.  E.  302. 
Reversing  76  111.  App.  686,  upholding  offer  to  sell,  to  be  accepted  within  certain 
time;  Kerting  v.  Hilton,  51  111.  App.  439,  holding  privilege  to  buy  plant,  but  no 
L.R.A.  Au.  Vol.  I.— 65. 


6  L.R.A.  164]  L.  R.  A.  CASES  AS  AUTHORITIES.  1026 

promise  to  buy  it,  void;  Wolsey  v.  Xeeley.  62  111.  App.  149,  holding  contract  giving 
purchaser  option  to  resell  stock  at  end  of  three  years  void;  Bensinger  v.  Kantzler, 
112  111.  App.  297,  and  Locke  v.  Towler,  41  111.  App.  70,  holding  mere  option  to 
sell  stock  at  future  time  void;  Corcoran  v.  Lehigh  &  F.  Coal  Co.  37  111.  App.  580, 
holding  agreement  to,  deliver  coal  if  required  at  future  time  void ;  Minnesota 
Lumber  Co.  v.  Whitebreast  Coal  Co.  160  111.  98,  31  L.  R.  A.  534,  43  X.  E.  774, 
Reversing  56  111.  App.  257,  holding  privilege  of  ordering  any  quantity  of  coal 
not  in  excess  of  certain  amount  not  illegal  option:  Waite  v.  Frank,  14  S.  D.  631, 
86  X.  W.  645,  holding  purchases  and  sales  of  grain,  without  intention  to  receive 
or  deliver  same,  void;  Jamieson  v.  Wallace,  167  111.  396,  59  Am.  St.  Rep.  302, 
47  X.  E.  762.  holding  purchases  of  stock  to  be  gambling  contracts  when  amounts 
purchased  far  in  excess  of  principal's  capital;  Samuels  v.  Oliver,  130  111.  85,  22  N. 
E.  499,  holding  that  money  used  by  broker  to  corner  grain  cannot  be  recovered ; 
Pope  v.  Hanke,  155  111.  621,  28  L.  R.  A.  570,  40  X.  E.  839,  holding  notes  given 
for  purchases  of  grain,  without  intending  delivery,  void;  Watte  v.  Costello,  40  111. 
App.  310,  holding  contract  for  sale  and  purchase  of  grain,  with  option  to  deliver 
and  receive  or  not,  void;  Christie  Grain  &  Stock  Co.  v.  Chicago  Bd.  of  Trade,  61 
C.  C.  A.  17,  125  Fed.  167,  holding  equity  will  not  protect  property  right  in  stock 
quotations  based  on  transactions  not  intending  actual  future  delivery;  Kantzler 
v.  Benzinger,  214  111.  597,  73  N.  E.  874,  on  contract  for  sale  of  stock  if  "taken  on 
or  before"  a  "certain  future  day;"  Dunbar  v.  Armstrong,  115  111.  App.  551; 
R.  E.  Pratt  &  Co.  v.  Ashmore,  224  111.  591,  79  N.  E.  952, — holding  void,  contracts 
for  purchase  or  sale  of  commodities  with  the  understanding  that  actual  deliver- 
ies are  not  to  be  made  but  adjustment  to  be  made  by  cash  for  differences  in  mar- 
ket; Bates  v.  Woods,  225  111.  332,  80  N.  E.  84,  Reversing  126  111.  App.  184,  hold- 
ing contract  was  an  "option"  contract  on  futures  and  void;  Xash-Wright  Co.  v. 
Wright,  156  111.  App.  260,  holding  that  mutual  gambling  intent  must  exist  in 
order  to  make  contract  for  purchase  and  sale  of  grain  gambling  in  nature  and 
illegal;  Wars  v.  Pearsons,  98  C.  C.  A.  364,  173  Fed.  881,  holding  transactions  com- 
monly called  "puts  and  calls"  to  be  in  violation  of  statute  prohibiting  option  for 
future  sale  or  purchase  and  delivery. 

Distinguished  in  Smith  v.  Preston,  82  111.  App.  293,  holding  agreement  to 
furnish  as  much  of  patented  article  as  other  party  wants,  in  consideration  of  ex- 
clusive right  to  manufacture  and  sell,  not  option;  Seymour  v.  Howard,  51  111. 
App.  386,  holding  option  became  contract  by  not  having  been  withdrawn  before  ac- 
ceptance; Wolf  v.  National  Bank,  178  111.  94,  52  N.  E.  896,  Reversing  77  111. 
App.  332,  upholding  sale  of  bonds  under  agreement  by  seller  to  repurchase  at  sell- 
ing price,  with  interest,  at  specified  time. 
Construction  of  words. 

Cited  in  Corn  Exch.  Xat.  Bank.  v.  Jansen,  70  Neb.  583,  97  N.  W.  814,  on  parol 
evidence  to  impeach  consideration  recited  in  written  instrument. 

Cited  in  notes  (17  L.R.A.  274)  on  parol  evidence  to  vary,  add  to,  or  alter  writ- 
ten contract;  (21  Am.  St.  Rep.  122)  on  parol  evidence  as  to  writing. 

Distinguished  in  Bryden  v.  Northrup,  58  111.  App.  235,  holding  injunction  will 
lie  for  use  as  dramshop  of  premises  demised  for  "studio;"  Gibbs  v.  People's  Nat. 
Bank,  198  111.  311,  64  N.  E.  1060,  construing  word  "net"  as  expressing  its  ordi- 
nary and  usual  meaning. 

6  L.  R,  A.  167,  CAMPBELL  v.  CAMPBELL,  130  111.  466,  22  N.  E.  620. 

Second  appeal  in  138  111.  613,  28  X.  E.  1080. 
Interest   of   person    named   as   executor. 

Cited  in  Bardell  v.  Brad}-,  172  111.  423,  50  N.  E.  124,  holding  executor  proper 
party  to  bill  to  contest  will. 


1027  L.  E.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  167 

Presumption    of    competency    of    witness. 

Cited  in  Boyd  v.  McConnell,  209  111.  398,  70  X.  E.  649,  holding  burden  is  on 
contestant  of  will  to  show  incompetency  of  attesting  witnesses  to  testify;  South- 
ern Collegiate  Inst.  v.  Avery,  157  111.  App.  570,  holding  that  burden  is  upon  one 
who  objects  to  competency  of  witness  to  state  and  prove  ground  of  objection. 
Interest  necessary  to  disqualify  witness. 

Cited  in  Christiansen  v.  Dunham  Towing  &  Wrecking  Co.  75  111.  App.  274,  hold- 
ing witness  should  not  be  excluded  where  his  interest  is  doubtful;  Wetzel  v.  Fire- 
baugh,  251  111.  196,  95  X.  E.  1085,  holding  that  test  of  interest  which  determines 
competency  of  witness  in  will  contest,  is  whether  he  will  gain  or  lose  as  result  of 
suit. 

Cited  in  note  (38  L.R.A.(N.S.)  733)  on  admissibility  of  declarations  of  bene- 
ficiary or  executor  to  show  lack  of  testamentary  capacity  or  undue  influence. 

Distinguished  in  Smith  v.  Smith,  168  111.  495,  48  X.  E.  96,  holding  executor. 
after  resignation  and  withdrawal  of  answer,  competent  to  testify. 
Nature    of    estate    disposed    of. 

Cited  in  Greene  v.  Greene,  145  111.  275,  33  X.  E.  941,  holding  that  man  not  able 
to  dispose  of  large  estate  may  be  capable  of  disposing  of  small  estate. 
Sonnd  mind  and  memory. 

Cited  in  Waugh  v.  Moan.  200  111.  303,  65  X.  E.  713,  holding  word  "sane"  synoov- 
mous  with  "sound  miad  and  memory"  in  instruction  with  reference  to  testa- 
mentary capacity:  Waters  v.  Waters,  222  111.  33,  113  Am.  St.  Rep.  359,  78  X.  E. 
1,  holding  that  one  not  able  to  take  care  of  business  affairs  may  nevertheless  be 
able  to  make  a  valid  will;  Owen  v.  Crumbaugh,  228  111.  399,  119  Am.  St.  Rep. 
442,  81  X.  E.  1044.  10  A.  &  E.  Ann.  Cas.  606,  holding  a  person  believing  in 
spiritualism  may  still  have  that  soundness  of  mind  and  memory  required  in  the 
execution  of  a  will:  Drum  v.  Capps,  240  111.  542,  88  X.  E.  1020,  holding  that  an- 
aversion  for  the  prejudice  against  relatives  is  not  necessarily  evidence  of  lack  of 
testamentary  capacity. 
Tests  of  testamentary  capacity. 

Cited  in  Petefish  v.  Becker,  176  111.  454,  52  X.  E.  71,  holding  unsoundness  of 
mind  to  invalidate  will  must  be  such  that  testator  did  not  know  actual  objects  of 
his  bounty;  Graybeal  v.  Gardner,  146  111.  345,  34  X.  E.  528,  holding  testator  need 
not  retain  all  his  vigor  of  mind  and  memory  to  make  valid  will;  Bevelot  v.  Les- 
trade,  153  111.  632,  38  X.  E.  1056,  holding  testator  has  sufficient  capacity  if,  when 
attention  is  aroused,  his  mind  acts  clearly  and  with  discriminating  judgment; 
Mclntosh  v.  Moore,  22  Tex.  Civ.  App.  30,  53  S.  W.  611,  holding  testator  only  re- 
quired to  know  state  of  his  property,  scope,  meaning,  and  effect  of  will;  Waugh 
v.  Moan,  200  111.  303,  65  X.  E.  713,  and  Greene  v.  Greene,  145  111.  274,  33  X.  E. 
941,  holding  test  to  be  whether  testator  understood  business  in  which  he  was 
engaged  and  disposition  made  of  his  property;  Craig  v.  Southard,  148  111.  45,  35 
X.  E.  361,  holding  real  question  for  jury  to  be  whether  testator,  when  making 
will,  understood  that  particular  business;  Whipple  v.  Eddy,  161  111.  122,  43  X. 
E.  789,  holding  person  able  to  transact  ordinary  business  affairs  capable  of  making 
a  will;  Ring  v.  Lawless,  190  111.  529,  60  X.  E.  881,  holding  mental  power  and 
vigor  to  transact  ordinary  business  not  necessarily  required  to  make  valid  will^ 
Entwistle  v.  Meikle,  180  111.  22,  54  X.  E.  217,  sustaining  will  where  preponderance 
of  evidence  showed  testator  was  able  to,  and  did,  transact  ordinary  business; 
Dillman  v.  McDaniel,  222  111.  288,  113  Am.  St.  Rep.  400,  78  X.  E.  591,  holding  in> 
issue  of  capacity  the  test  is  whether  he  had  the  capacity  to  execute  the  will  in 
question  not  as  to  his  capacity  in  general:  Healea  v.  Keenan,  244  111.  489,  91 
N.  E.  646,  to  the  point  that  man  may  be  incompetent  to  make  will  of  one  kind 


6  L.R.A.  167]  L.  R.  A.  CASES  AS  AUTHORITIES.  1028 

because  of  nature  and  extent  of  state,  but  competent  to  make  one  less  compli- 
cated; McCoy  v.  Sheehy,  252  111.  513,  96  N.  E.  1069,  holding  that  it  is  not  neces- 
sary that  testator  should  be  in  full  possession  of  all  his  reasoning  faculties,  nor 
does  mere  fact  that  he  was  about  to  die  when  will  was  made  invalidate  it. 

Cited  in  notes    (18  L.R.A.  (N.S.)    100)    on  power  of  one  lacking  testamentary 
capacity   to   revoke   will;     (27   L.R.A.  (N.S.)    10,   41)    on   what   is   testamentary 
capacity. 
Capacity    to   make    valid    deed. 

Cited  in  Francis  v.  Wilkinson,  147  111.  380,  35  N.  E.  150,  holding  grantor,  when 
making  deed,  must  be  able  to  understand  the  transaction. 

6  L.  R.  A.  172,  ROLFE  v.  THE  BOSKENNA  BAY,  40  Fed.  91. 

Followed  without  discussion  in  Saitta  v.  The  Boskenna  Bay,  40  Fed.  96. 
Ship's   liability    for    discharged   cargo. 

Cited  in  Smith  v.  Britain  S.  S.  Co.  123  Fed.  177,  denying  ship's  liability  for 
injury  to  cargo  which  owner  leaves  for  several  days  on  wharf,  where  bill  of  lad- 
ing provides  that  liability  shall  cease  on  unloading. 
Custom  as  affecting  delivery  of  cargo. 

Cited  in  Pickering  v.  Weld,  159  Mass.  524,  54  N.  E.  1080,  holding  custom  may 
regulate  time,  place,  and  manner  of  delivery  of  cargo,  in  absence  of  express 
contract. 

£  L.  R,  A.  176,  DAWSON  v.  POGUE,  18  Or.  94,  22  Pac.  637,  643. 
Partnership,    what   constitutes. 

Cited  in  Willis  v.  Crawford,  38  Or.  525,  53  L.  R.  A.  906,  63  Pac.  985,  holding 
two  lawyers  agreeing  to  conduct  certain  litigation,  dividing  compensation,  not 
special  partners. 

Cited  in  note   (115  Am.  St.  Rep.  412)   on  what  constitutes  a  partnership. 
Error  on  trial  not  presumed. 

Cited  in  Wachsmuth  v.  Routledge,  36  Or.  311,  59  Pac.  454,  holding  error  not 
appearing  in  record  not  presumed. 
Assignment   of   chose   in   action. 

Cited  in  Gregoire  v.  Rourke,  28  Or.  277,  42  Pac.  996,  holding  consideration  un- 
necessary to  support  assignment  of  chose  in  action;  First  Xat.  Bank  v.  Miller,  48 
Or.  592,  87  Pac.  892,  holding  consideration  not  necessary  to  support  assignment 
of  chose  in  action,  as  between  the  parties. 

6  L.  R.  A.  187,  DOOLITTLE  v.  DOOLITTLE,  78  Iowa,  691,  43  N.  W.  616. 
Grounds   for  divorce. 

Cited  in  Day  v.  Day,  84  Iowa,  225,  50  N.  W.  979,  holding  failure  to  provide 
medical  treatment,  and  permitting  members  of  household  to  abuse  and  insult 
wife,  justifies  divorce;  Berry  v.  Berry,  115  Iowa,  545,  88  N.  W.  1075,  holding  use 
of  violent  and  abusive  language,  making  wife  ill,  justifies  divorce;  Ryan  v.  Ryan, 
30  Or.  228,  47  Pac.  101,  holding  habitual  intoxication,  with  vile  and  abusive 
language,  ground  for  divorce;  Ennis  v.  Ennis,  92  Iowa,  115,  (50  N.  W.  228,  holding 
conduct  attributable  to  weakness  or  disease  of  mind  not  inhuman  treatment  jus- 
tifying divorce;  Williams  v.  Williams,  1  Colo.  App.  287,  28  Pac.  726,  holding 
behavior  not  endangering  life,  limb,  or  health  not  ground  for  divorce;  Craig  v. 
Craig,  129  Iowa,  195,  2  L.R.A.(N.S.)  671,  105  N.  W.  446,  holding  semi-public 
declaration  of  love  and  paying  of  exclusive  attention  to  another  woman  in  the 
home  of  defendant's  family  grounds  for  divorce  as  cruel  and  inhuman  treat- 
ment; Kupka  v.  Kupka,  132  Iowa,  192,  109  N.  W.  610,  holding  where  wife  after 


3029  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  190 

birth  of  child  left  home  of  her  husband  for  medical  treatment,  and  because  of  op- 
eration was  detained  from  home  during  which  time  she  frequently  wrote  affection- 
ate letters  to  husband,  no  intent  to  desert  on  her  part  appears. 

Cited  in  footnotes  to  Robinson  v.  Robinson,  15  L.  R.  A.  121,  which  holds  prac- 
tice of  Christian  Science  by  wife  ground  for  divorce  by  husband;  Barnes  v.  Barnes, 
16  L.  R.  A.  660,  which  holds  mental  suffering,  without  affecting  bodily  health, 
ground  for  divorce;  Maddox  v.  Maddox,  52  L.  R,  A.  628,  which  denies  right  to 
divorce  for  cruelty  in  failure  to  provide  suitable  dwelling  house,  clothing,  and 
food;  Tirrell  v.  Tirrell,  47  L.  R.  A.  750,  which  holds  mere  payment  of  allowance 
to  abandoned  wife  under  order  of  court  not  prevent  divorce  for  desertion;  Ring 
v.  Ring,  62  L.R.A.  878,  which  holds  habitual  and  intemperate  use  of  morphine 
not  cruel  treatment  entitling  other  spouse  to  divorce. 

Cited  in  notes  (19  Am.  St.  Rep.  433)  on  ground  for  divorce;    (65  Am.  St.  Rep. 
80)   on  cruelty  as  ground  for  divorce:    (18  L.R.A.  (N.S.)  314)   on  making  charges 
of  adultery  as  ground  for  divorce. 
Allowance  of  counsel  fees  to   wife  on  appeal. 

Cited  in  Simpson  v.  Simpson,  91  Iowa,  242,  59  N.  W.  22,  holding  woman  in 
divorce  action  entitled,  as  appellee,  to  allowance  of  attorney's  fees;   Halsted  v. 
Halsted,   11   Misc.  593,  32  N.  Y.  Supp,  1080,  holding  alimony  and  counsel  fees 
allowable  in  court's  discretion  to  wife  pending  her  appeal. 
Allowance    of    BTOSS    sum    to    divorced    wife. 

Cited  in  footnote  to  Hooper  v.  Hooper,  44  L.  R.  A.  725,  which  sustains  allow- 
ance of  gross  sum  from  husband's  estate  in  addition   to  monthly  alimony. 
Allowance  of  temporary  support. 

Cited  in  Baker  v.  Oughton,  130  Iowa,  39,  106  X.  W.  272,  holding  husband 
who  drives  wife  from  home  impliedly  binds  himself  to  provide  for  her  regard- 
less of  cause,  hence  justification  cannot  be  shown  against  claim  for  necessaries. 

6  L.  R.  A.  190.  DARTMOUTH  SPINNING  CO.  v.  ACHARD,  84  Ga.  14,  10  S. 

E.   449. 
N  <•!.•.  i  it  ciioo  :    servant's    assumption    of    risk. 

Followed  in  Lucas  v.  Southern  R.  Co.  1  Ga.  App.  813,  57  S.  E.  1041,  holding 
car  inspector  assumes  risk  from  improper  loading  of  car  where  it  is  part  of  his 
duty  to  see  that  cars  are  properly  loaded;  Redding  v.  Central  Georgia  Teleph.  Co. 
6  Ga.  App.  832,  65  S.  E.  1068.  holding  employee  for  inspection  as  a  rule  assumes 
risk  of  all  dangers  incident  to  making  inspection. 

Approved  in  White  v.  Thomasville  Light  &  P.  Co.  151  N.  C.  358,  66  S.  E.  210, 
holding  an  experienced  and  properly  intrusted  repairer  furnished  with  proper  ap- 
pliances assumes  risks  incident  to  his  duty  of  repairing  defective  machines  and 
appliances. 

Cited  in  Green  v.  Babcock  Bros.  Lumber  Co.  130  Ga.  469,  60  S.  E.  1062,  holding 
that  rule  as  to  furnishing  safe  machinery  is  not  applicable,  where  servant  is  em- 
ployed to  repair  the  machinery;  Huey  v.  Atlanta,  8  Ga.  App.  604,  70  S.  E.  71, 
to  the  point  that  one  who  is  employed  to  repair  defective  machinery  cannot  com- 
plain because  safe  machinery  is  not  furnished  him;  Pressly  v.  Dover  Yarn  Mills, 
138  X.  C.  418,  51  S.  E.  69,  holding  that  where  injured  person  is  not  an  expert, 
and  is  employed  for  certain  minor  repairs,  he  does  not  assume  risk  caused  by 
machine  needing  repairs  of  which  he  has  no  duties  in  connection;  Mathis  v.  At- 
lantic Coast  Line  R.  Co.  144  X.  C.  164,  56  S.  E.  864,  holding  person  sent  to  re- 
pair water  spout  not  entitled  to  recovery  where  knowing  of  its  rotten  condition 
he  pulled  it  down  causing  injury;  Lane  v.  Xorth  Carolina  R.  Co.  154  X.  C.  96, 
69  S.  E.  780,  holding  that  employee  whose  duty  is  to  repair  cars  cannot  recover 


6  L.R.A.  190]  L.  R.  A.  CASES  AS  AUTHORITIES.  1030 

for  injury  caused  by  car  door  swinging  loose  and  down  at  one  end,  when  he  is 
furnished  with  proper  appliances,  and  when  its  repair  would  have  prevented  such 
falling;  Reed  v.  Moore,  25  L.R.A.  (N.S.)  334,  82  C.  C.  A.  434,  153  Fed.  36.1, 
holding  general  repairer  assumes  risk  from  disordered  condition  of  machinery 
other  than  that  immediate  piece  on  which  he  is  working  at  time  of  accident. 

Cited  in  footnote  to  Stager  v.  Troy  Laundry  Co.  53  L.  R.  A.  459,  which  holds 
risk  of  hand  passing  under  guard  rails  into  rollers  not  assumed  as  matter  of 
law  by  servant  operating  mangle  in  laundry. 

Cited  in  notes  (47  L.R.A.  173)  on  volenti  non  fit  injiiria  as  defense  to  ac- 
tions by  injured  servants;  (98  Am.  St.  Rep.  303)  on  liability  to  servant  for  in- 
juries due  to  defective  machinery  and  appliances. 

6  L.  R.  A.  191,  WASSON  v.  LAMB,  120  Ind.  514,  16  Am.  St.  Rep.  342,  22  N.  E. 

729. 
Nature    of   bank    deposits. 

Cited  in  Union  Nat.  Bank  v.  Citizens'  Bank,  153  Ind.  52,  54  N.  E.  97,  holding 
bank  remitting  proceeds  of  note  sent  it  for  collection  by  draft  not  paid  because 
of  drawer's  insolvency,  mere  debtor,  and  not  trustee;  Winfield  Nat.  Bank  v. 
McWilliams,  9  Okla.  508,  60  Pac.  229,  holding  collecting  bank  entitled  to  pro- 
ceeds of  check  taken  for  value  from  correspondent  bank  failing  before  collection; 
Dille  v.  White,  132  Iowa,  353,.  10  L.R.A.  547,  109  N.  W.  909  (dissenting  opin- 
ion), on  demanding  and  receiving  a  credit  for  paper  deposited  as  being  equiva- 
lent to  a  cash  deposit;  Sawyer  v.  Stilson,  146  Iowa,  715,  125  N.  W.  822,  holding 
that  money  received  by  bank  from  customers  to  pay  taxes  amounted  to  deposit  by 
county  treasurer  where  he  at  bank's  request  sent  receipt  to  bank  and  was  credited 
with  amount. 

Cited  in  notes  (24  L.R.A.  737)  as  to  entries  in  bank  book  as  contracts: 
(7  L.R.A. (N.S. )  698)  on  title  of  bank  to  check  on  another,  credited  to  depositor; 
(37  L.R.A.  (N.S.)  -1187)  on  right  of  bank  to  impeach  source  of  deposit  as  against 
holder  of  check;  (47  Am.  St.  Rep.  390)  on  effect  of  check  indorsed  "for  de- 
posit;" (86  Am.  St.  Rep.  781)  on  title  of  bank  to  money  deposited  with  or 
collected  by  it;  (86  Am.  St.  Rep.  796)  on  right  to  recover  money  deposited  with 
or  collected  by  bank  upon  its  insolvency ;  ( 105  Am.  St.  Rep.  745 )  on  duties  of 
savings  banks  toward  depositors;  (134  Am.  St.  Rep.  1023)  on  effect  of  balances 
struck  in  pass  books;  (3  Eng.  Rul.  Cas.  762)  on  check  as  equitable  assignment 
and  duty  of  bank  to  pay  same. 
Payment  with  commercial  paper. 

Cited  in  Dille  v.  White,  132  Iowa,  350,  10  L.R.A. (N.S.)  543,  109  N.  W.  909 
(dissenting  opinion),  on  the  acceptance  of  commercial  paper  as  being  payment. 

Cited  in  note    (35  L.R.A. (N.S.)    83)    on  payment  by  commercial  paper 

6  L.  R.  A.  193,  LOUISVILLE,  N.  A.  &  C.  R.  CO.  v.  LUCAS,   119  Ind.  583.  21 
N.   E.   968. 

Judgment  in  favor  of  Pennsylvania  Company  reversed,  with  instructions  to  ren- 
der judgment  on  special  verdict  against  both  defendants,  in  Lucas  v.  Pennsylva- 
nia Co.   120  Ind.  205,   16  Am.   St.  Rep.  323,  21   N.  E.   972. 
Carrier's  duty  to  provide  suitable  platform  and  approach. 

Cited  in  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Wingate,  143  Ind.  131,  37  N.  E.  274, 
holding  railway  liable  to  passenger  injured  in  attempt  to  alight,  where  plat- 
form 26  inches  below  level  of  car  steps;  Indianapolis  Street  R.  Co.  v.  Robinson, 
157  Ind.  420,  61  N.  E.  936,  holding  company  liable  for  injury  due  to  stepping 
on  defective  board  in  platform,  where  crowd  prevented  party  from  seeing  it; 
Pennsylvania  Co.  v.  Marion,  123  Ind.  418,  7  L.  R.  A.  690,  23  N.  E.  973,  18 


1031  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  193 

Am.  St.  Rep.  330,  holding  company  liable  for  injury  sustained  by  passenger  on 
alighting  from  slowly  moving  train,  where  accident  caused  by  defect  in  plat- 
form; Louisville,  N.  A.  &  C.  R.  Co.  v.  Treadway,  142  Ind.  482,  143  Ind.  697, 
40  X.  E.  807,  holding  railway  liable  for  injury  due  to  unprotected  and  unlighted 
platform,  at  2  A.  M.  to  passenger  waiting  for  train;  New  York,  C.  &  St.  L. 
R.  Co.  v.  Mushrush,  11  Iiid.  App.  195,  37  X.  E.  954,  holding  railway  liable  for 
death  of  boy  stumbling  over  concealed  obstructions  on  platform  and  falling  under 
train;  Barker  v.  Ohio  River  R,  Co.  51  W.  Va.  428,  90  Am.  St.  Rep.  808,  41  S. 
E.  148.  holding  railway  liable  to  party  on  platform,  injured  by  stepping  back- 
wards into  hole  left  by  washed  out  plank;  Illinois  C.  R.  Co.  v.  Cheek,  152  Ind. 
670,  53  N.  E.  641,  holding  railway  liable  for  injury  resulting  from  attempt  to 
board  train,  where  no  platform,  and  steps  3  feet  from  ground,  on  assurance  of 
assistance  by  carrier's  servants;  Alabama  G.  S.  R.  Co.  v.  Godfrey,  156  Ala.  215, 
130  Am.  St.  Rep.  76,  47  So.  185.  holding  duty  of  railroad  company  as  a  carrier 
oeases  as  a  general  rule  when  the  passenger  has  left  the  depot  grounds  or  has 
had  a  reasonable  time  in  which  to  do  so;  Harris  v.  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.  32  Ind.  App.  602,  70  N.  E.  407,  holding  it  to  be  duty  of  carrier  to  provide 
safe  place  to  alight  and  not  to  allow  accumulation  of  ice  on  platform;  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  v.  Harvey,  45  Ind.  App.  157,  90  N.  E.  318,  holding  that  rail- 
road selling  return  trip  tickets  to  small  flag  station  is  required  to  light  its  plat- 
form for  reasonable  time  before  arrival  of  train;  Wood  v.  Metropolitan  Street 
R.  Co.  181  Mo.  443,  81  S.  W.  152,  holding  person  in  transferring  using  platform 
provided  for  that  purpose  is  entitled  to  care  due  from  company  in  its  capacity 
as  a  carrier  the  person  having  a  through  ticket;  Abbot  v.  Oregon  R.  Co.  46  Or. 
560,  1  L.R.A.  (X.S.)  856,  114  Am.  St.  Rep.  885,  80  Pac.  1012,  7  A.  &  E.  Ann. 
Cas.  961,  holding  carrier  bound  to  keep  platforms,  approaches  and  station 
grounds  properly  lighted  for  a  reasonable  length  of  time  preceding  arrival  and 
succeeding  departure  of  scheduled  trains ;  Great  Falls  &  O.  D.  R.  Co.  v.  Hill.  34 
App.  D.  C.  312,  holding  it  to  be  duty  of  carrier  to  exercise  highest  practical 
degree  of  care  for  safety  of  passengers  not  only  as  to  carriage  but  also  in  respect 
of  means  for  getting  on  and  off  its  cars. 

Cited  in  footnotes  to  Herrman  v.  Great  Xorthern  R.  Co.  57  L.  R.  A.  390. 
which  holds  railroad  company  liable  for  injury  to  passenger  from  unsafe  con- 
dition of  depot  premises  leased  of  union  depot  company  or  its  receiver;  Jordan 
v.  Xew  York.  X.  H.  &  H.  R.  Co.  32  L.  R.  A.  101.  which  holds  carrier  liable  for 
dangerous  hole  in  floor  of  unlighted  toilet  room  in  depot :  Redigan  v.  Boston  & 
M.  R.  Co.  14  L.  R.  A.  276.  which  denies  recovery  to  licensee  falling  through 
open  trap  door  in  station  platform;  Sargent  v.  St.  Louis  &  S.  F.  R.  Co.  19  L. 
R,  A.  460,  which  holds  carrier  not  required  to  have  gas  or  electric  lights  on 
station  platform. 

Cited  in  notes  (7  L.  R.  A.  Ill)  on  duty  of  railroads  to  furnish  safe  stations 
and  platforms  for  use  of  passengers;  (16  L.  R.  A.  593)  on  duty  of  carrier  to 
maintain  safe  approaches  beyond  its  own  premises;  (7  L.  R.  A.  688)  on  means 
of  approach  and  departure;  (20  L.  R.  A.  527)  as  to  whom  railroads  owe  duty  of 
keeping  station  platforms  safe;  (33  L.R.A. (X.S.)  859)  on  degree  of  care  toward 
passenger  at  station. 

Distinguished  in  Brooks  v.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  158  Ind.  67,  62 
N.  E.  694,  denying  railroad's  liability  for  injury  to  one  alighting  from  another 
company's  train  in  switching  yard. 

Disapproved  in  Pere  Marquette  R.  Co.  v.  Strange.  171  Ind.  168,  170,  20  L.R.A. 
I  X.S.)  1048,  84  X.  E.  819,  holding  railway  company  not  under  the  highest  de- 
gree of  care  in  maintaining  platforms,  waiting  rooms  and  appurtenances  not 
directly  employed  in  transportation  of  passengers. 


6  L.R.A.  193]  L.  R.  A.  CASES  AS  AUTHORITIES.  1032 

Degrree   of   care   required   of   carrier. 

Cited  in  Kentucky  &  I.  Bridge  Co.  v.  Quinkert,  2  Ind.  App.  248,  28  N.  E. 
338,  holding  carrier  of  passengers  bound  to  carry  safely  "so  far  as  human  skill 
and  foresight  can  go;"  Hammond,  W.  &  E.  C.  Electric  R.  Co.  v.  Spyzchalski, 
17  Ind.  App.  12,  46  N.  E.  47,  and  Prothero  v.  Citizens'  Street  R.  Co.  134  Ind. 
439.  33  N.  E.  765,  holding  carrier  bound  to  use  "highest  degree  of  care,  dili- 
gence, vigilance,  and  skill"  in  proportion  to  degree  of  peril  of  situation;  Citi- 
zens' Street  R.  Co.  v.  Merl,  134  Ind.  611,  33  N.  E.  1014,  holding  passenger  en- 
titled to  damages  for  injury  sustained  while  attempting  to  board  transfer  car, 
by  reason  of  wilful  collision  therewith  of  approaching  car;  Citizens'  Street  R. 
Co.  v.  Merl,  26  Ind.  App.  291,  59  N.  E.  491,  holding  carrier  liable  where  injury 
caused  by  collision  with  trolley  poles  beside  track  by  reason  of  starting  car  be- 
fore passenger  found  seat;  Indiana  Union  Traction  Co.  v.  Thomas,  44  Ind.  App. 
472,  88  N.  E.  356,  holding  that  instruction  that  railroad  is  bound  to  use  highest 
degree  of  care  for  passenger's  safety,  provided  they  are  not  guilty  of  contribu- 
tory negligence  is  not  improper  where  jury  was  told  railroad  was  not  insurer. 

Cited  in  notes   (20  L.  R.  A.  523)    on  measure  of  care  which  carrier  must  ex- 
ercise to  keep  its  platforms  and  approaches  safe;    (11  L.  R.  A.  720)   on  duty  of 
railroad  companies  to  care  for  safety  of  passengers;    (5  Eng.  Rul.  Cas.  462)    on 
extent  of  duty  to  secure  safety  of  passengers. 
Proximate    cause. 

Cited  in  Chicago  &  E.  I.  R.  Co.  v.  Grimm,  25  Ind.  App.  497,  57  N.  E.  640, 
holding  railway  liable  for  injury  to  passenger  in  wreck  caused  by  running  over 
horse,  where  engine  negligently  placed  at  back  of  train  and  light  caboose  in  front: 
Coy  v.  Indianapolis  Gas  Co.  146  Ind.  665,  36  L.  R.  A.  538,  46  N.  E.  17,  holding 
failure  of  gas  company  to  supply  gas  during  wintertime,  according  to  contract, 
proximate  cause  of  death  of  children  from  relapse  in  sickness  by  reason  of 
cold;  Grimes  v.  Louisville,  N.  A.  &  C.  R.  Co.  3  Ind.  App.  579,  30  N.  E.  200, 
holding  railway  liable  for  death  of  runaway  horse  killed  when  attempting  to 
jump  between  cars  unlawfully  obstructing  street;  Eureka  Block  Coal  Co.  v. 
Wells,  29  Ind.  App.  7,  94  Am.  St.  Rep.  259,  61  N.  E.  236,  holding  negligence  of 
mine  boss  in  permitting  blasting  where  wall  was  dangerously  thin  proximate 
cause  of  injury  to  employee  on  other  side:  Indianapolis  Street  R.  Co.  v.  Schmidt, 
163  Ind.  364,  71  N.  E.  201,  holding  complaint  sufficiently  alleges  negligence  of 
defendant  as  proximate  cause  where  negligent  act  is  set  out  followed  by  facts 
in  the  natural  consequence;  Indianapolis  Street  R.  Co.  v.  Schmidt,  35  Ind.  App. 
210.  71  N.  E.  663,  holding  company  liable  where  plaintiff  negligently  crosses  track 
ahead  of  car  but  the  motorman  having  full  control  or  means  thereof  under 
the  circumstances  negligently  runs  into  him;  Logansport  v.  Smith,  47  Ind.  App. 
73,  93  N.  E.  883,  holding  that  city  is  liable  for  negligence  in  constructing  its 
wires  for  electric  lights  although  railroad  was  also  guilty  of  negligence  con- 
tributing to  injury;  Pacific  Teleph.  &  Teleg.  Co.  v.  Parmenter,  95  C.  C.  A.  382, 
370  Fed.  144,  holding  defendant  liable  for  injury  caused  by  the  felling  of  a  tree 
against  a  wire  of  defendant  attached  to  a  rotten  pole  unsupported  by  guy  wire. 
the  negligence  of  person  felling  tree  being  concurrent  with  that  of  defendant. 

Cited  in  footnotes  to  Vallo  v.  United  States  Exp.  Co.  14  L.  R.  A.  743,  which 
holds  throwing  trunk  from  delivery  wagon  in  highway  proximate  cause  of  trav- 
eler falling  over  another  trunk;  Southwestern  Teleg.  &  Teleph.  Co.  v.  Robinson, 
16  L.  R.  A.  545.  which  holds  telephone  company  liable  for  injury  by  electricity 
generated  by  thunder  storm  in  low-hanging  telephone  wire;  Schumaker  v.  St. 
Paul  &  D.  R.  Co.  12  L.  R.  A.  257,  which  holds  master's  neglect  to  furnish  trans- 
portation proximate  cause  of  injury  received  in  walking  to  find  shelter;  Mc- 
Kenna  v.  Baessler,  17  L.  R.  A.  310,  which  holds  original  fire  proximate  cause  of 


1033  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  193 

destruction  of  property  by  back  fire;  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Elliott, 
20  L.  R.  A.  582,  as  to  proximate  cause  of  injury  to  shipper  while  stepping  from 
stock  car  to  caboose;  Harrison  v.  Detroit,  L.  &  N.  R.  Co.  7  L.  R.  A.  623,  which 
liolds  proximate  cause  of  injury  to  servant  question  for  jury;  Wood  v.  Pennsyl- 
vania R.  Co.  35  L.  R.  A.  199,  which  holds  failure  to  give  warning  of  approach 
of  train  not  proximate  cause  of  injury  to  one  struck  by  body  of  other  person 
hit  by  train;  Western  R.  Co.  v.  Mutch,  21  L.  R.  A.  316,  which  holds  excessive 
speed  not  proximate  cause  of  death  of  boy  attempting  to  catch  on  train;  Mc- 
Clain  v.  Garden  Grove,  12  L.  R.  A.  482,  which  holds  narrowness  of  bridge  and 
insufficiency  of  railings  not  proximate  cause  of  injury  from  horse  falling  from 
disease  or  choking. 

Cited  in  notes  (13  L.  R.  A.  733)  on  proximate  and  remote  cause  of  damage; 
(12  L.  R.  A.  282,  283)  on  concurrent  or  co-operating  causes  of  injury;  (8  L.  R. 
A.  83)  on  loss  or  injury  attributed  to  proximate  cause;  (13  L.  R.  A.  193)  on 
responsibility  for  proximate  or  direct  consequences  of  negligence;  (17  L.  R.  A. 
35)  on  effect  of  concurring  negligence  of  third  person  on  liability  of  one  sued 
for  negligently  causing  injury;  (8  L.  R;  A.  84)  on  intervening  agency  breaking 
causal  connection;  (8  L.  R.  A.  82)  on  liability  for  injuries  produced  by  negli- 
gence; (7  L.R.A.  (N.S.)  1178)  on  what  injuries  deemed  proximate  result  of  dis- 
charging passenger  at  wrong  or  improper  place. 

Distinguished  in  Reid  v.  Evansville  &  T.  H.  R.  Co.  10  Ind.  App.  396,  53  Am. 
St.  Rep.  391,  35  N.  E.  703,  holding  carrier  not  liable  for  loss  of  goods  de- 
stroyed by  fire  not  due  to  its  negligence,  merely  by  reason  of  delay  in  forward- 
ing car;  Davis  v.  Williams,  4  Ind.  App.  491,  31  N.  E.  204,  holding  owner  of 
dead  dog  not  liable  for  injuries  caused  in  accident  due  to  fright  of  horse  at  dog's 
carcass  in  road,  where  placed  there  by  third  party  without  owner's  knowledge 
or  consent. 
Interviewing  agency. 

Cited  in  Farrell  v.  Eastern  Machinery  Co.  77  Conn.  492,  68  L.R.A.  242,  107 
Am.  St.  Rep.  45,  59  Atl.  611,  holding  that  intervening  negligence  of  competent 
employee  does  not  relieve  master  from  liability  for  failure  to  supply  safe  place 
to  work;  Davis  v.  Mercer  Lumber  Co.  164  Ind.  423,  73  N.  E.  899,  holding  breach  of 
duty  to  guard  a  saw  proximate  cause  of  injury  to  workman  though  master  could 
not  reasonably  foresee  an  injury  identical  with  the  one  in  question,  provided  in- 
jury by  some  kind  might  be  reasonably  expected ;  Cleveland,  C.  C.  &  St.  L.  R.  Co. 
v.  Patterson,  37  Ind.  App.  623,  75  N.  E.  857,  holding  wrongdoer  not  excused  be- 
cause of  an  outside  intervening  cause  where  such  intervening  cause  might  rea- 
sonably have  been  foreseen. 
Contributory  negligence. 

Cited  in  McDermott  v.  Chicago  &  N.  W.  R.  Co.  82  Wis.  251,  52  X.  W.  85, 
holding  question  of  contributory  negligence  for  jury,  where  plaintiff  attempted 
to  alight  upon  unstable,  badly  placed,  slippery  bench,  from  train,  without  as- 
sistance and  aware  of  danger;  Illinois  C.  R.  Co.  v.  Atwell,  100  111.  App.  519, — 
holding  employee  jumping  upon  track  at  order  of  foreman,  to  remove  hand  car 
from  track  in  front  of  approaching  train,  not  guilty  of  contributory  negligence; 
Ohio  &  M.  R.  Co.  v.  Stansbery,  132  Ind.  536,  32  N.  E.  218,  holding  passenger 
not  guilty  of  contributory  negligence  in  failing  to  avoid  dangers  of  defective 
platform,  where  ignorant  thereof  and  having  no  cause  to  suspect  existence ; 
Knauss  v.  Lake  Erie  &  W.  R.  Co.  29  Ind.  App.  219,  64  X.  E.  95,  holding  com- 
plaint showing  passenger  was  injured  while  putting  head  out  of  car  window, 
demurrable. 

Cited  in  footnotes  to  Tuttle  v.  Atlantic  City  R.  Co.  54  L.  R.  A.  582,  which 
authorizes  recovery  for  fall  while  trying  to  escape  from  derailed  car;  Gannon 


6  L.R.A.  193]  L.  R.  A.  CASES  AS  AUTHORITIES.  3034 

v.  New  York,  N.  H.  &  H.  R.  Co.  43  L.  R.  A.  833,  which  holds  carrier  liable  for 
injury  to  passenger  while  impulsively  trying  to  escape  from  car  in  which  oil 
lamp  caught  fire;  St.  Louis  &  S.  F.  R.  Co.  v.  Murray,  16  L.  R.  A.  787,  which 
requires  passenger's  prudence  in  attempting  to  escape  to  be  judged  by  appar- 
ent circumstances;  Palmer  v.  Warren  Street  R.  Co.  63  L.R.A.  507.  which  hold* 
passenger  not  negligent  in  jumping  from  moving  car  to  avoid  impending  colli- 
sion. 

Cited  in  notes    (11  L.  R.  A.   131)    on  test  of  contributory  negligence;    (12  L. 
R.  A.  280)   on  recovery  defeated  by  contributory  negligence;    (13  L.  R.  A.  190) 
on  assuming  risk  to  save  human  life,  as  contributory  negligence;    (7  L.  R.  A. 
843)    on  party  placed  in  dilemma  by  another's  fault. 
Imputed  negligence. 

Cited  in  Consolidated  Gas  Co.  v.  Getty,  96  Md.  691,  94  Am.  St.  Rep.  603,  54 
Atl.  660,  holding  policeman's  negligence  in  searching  for  gas  leak  with  candle 
not  imputable  to  owner  of  house  damaged  by  explosion. 

Cited  in  note   (8  L.  R.  A.  844)   on  imputing  another's  negligence  to  child. 
Testimony   as   to   probable  results   of   Injury. 

Cited  in  Pennsylvania  Co.  v.  Frund,  4  Ind.  App.  473,  30  N.  E.  1116,  holding 
opinion  of  medical  expert  as  to  probable  cause  or  probable  results  of  injury 
competent;  Indianapolis  &  E.  R.  Co.  v.  Bennett,  39  Ind.  App.  145,  79  X.  E.  389, 
holding  physician  qualified  as  an  expert  witness,  who  attended  plaintiff  immedi- 
ately after  and  following  injury  competent  to  testify  as  to  what  in  his  opinion 
was  the  producing  cause  of  plaintiff's  nervousness;  Cincinnati,  L.  &  A.  Electric 
Street  R.  Co.  v.  Cook,  45  Ind.  App.  407,  90  X.  E.  1052;  Jerome  v.  United  R.  Co. 
155  Mo.  App.  207,  134  S.  W.  107, — holding  that  physician  duly  qualified  as 
expert  may  testify  as  to  probable  result  of  injury. 
Validity  of  special  verdict. 

Cited  in  Helewig  v.  Beckner,  149  Ind.  135,  46  N.  E.  644,  and  Bower  v.  Bower, 
146  Ind.  396,  45  N.  E.  595,  holding  omission  of  statutory  formal  conclusion  does 
not  vitiate  special  verdict;  Evansville  &  T.  H.  R.  Co.  v.  Taft,  2  Ind.  App.  242, 
28  X.  E.  443,  holding  verdict  not  invalidated  because  after  making  findings  and 
calling  for  law  applicable  to  plaintiff  it  makes  further  findings  before  calling 
for  law  applicable  to  defendant. 

Cited  in  note   (15  Am.  St.  Rep.  752)   on  sufficiency  of  verdict. 

6  L.  R.  A.  198,  PERKIXS  v.  DYER,  71  Md.  421,  18  Atl.  889. 
Taxes;   new  promise  removing:  bar  of  statute  of  limitations. 

Cited  in  Duvall  v.  Perkins,  77  Md.  591,  26  Atl.  1085,  holding  promise  by  life 
tenant  to  pay  taxes  payable  by  him  removes  bar  of  limitation  of  proceeding 
against  land;  Georgetown  College  v.  Perkins,  74  Md.  76,  21  Atl.  551,  holding 
taxpayer's  promise  to  pay  taxes  removes  bar  as  against  judgment  creditor 
claiming  surplus  proceeds  of  sale  under  senior  judgment. 

6  L.  R.  A.  200,  MEISWINKEL  v.  ST.  PAUL  F.  &  M.  IXS.  CO.  75  Wis.  147,  4S 

X.  W.  669. 
Reformation    of    written    instruments. 

Followed  in  Kruse  v.  Koelzer,  124  Wis.  540,  102  N.  W.  1072,  holding  evidence 
warranting  reformation  of  a  deed  must  be  clear  and  convincing  that  the  parties 
were  mutually  mistaken  and  that  they  intended  to  make  an  agreement  other 
than  the  one  evidenced  by  their  writing. 

Cited  in  Kropp  v.  Kropp,  97  Wis.  142,  72  N.  W.  382,  holding  clear  and  con- 
vincing evidence  of  mistake  in  notes  and  mortgage  justifies  reformation;  Glocke 
v.  Glocke,  113  Wis.  308,  57  L.  R.  A.  460,  89  N.  W.  118,  holding  clear  and  satis- 


3035  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  204 

factory  proof  of  mutual  mistake  required  to  reform  deed;  Fillingham  v.  Nichols, 
108  Wis.  56,  84  X.  W.  15,  holding  clear  and  convincing  evidence  required  to 
prove  deed,  absolute  on  face,  given  in  trust;  Jasper  v.  Hazen,  4  N.  D.  10,  23  L. 
R.  A.  64,  58  X.  W.  454,  holding  clear,  convincing,  and  satisfactory  evidence 
required  to  prove  absolute  deed  intended  as  mortgage;  Illinois  Steel  Co.  v.  Konkel, 
]4ti  Wis.  566,  131  X.  W.  842,  holding  that  deed  absolute  cannot  be  shown  to 
create  a  trust  in  absence  of  clear  and  convincing  evidence  in  writing  establishing 
the  fact  beyond  reasonable  controversy. 

Cited  in  notes    (65  Am.  St.  Rep.  494,  496)    on  reformation  of  contracts:    (28 
L.R.A. (X.S.)   917,  921)   on  reformation  for  mistake  of  law  as  to  effect  of  instru- 
ment. 
Terms  of  policy  binding:  on  mortgagee. 

Cited  in  Carberry  v.  German  Ins.  Co.  86  Wis.  326,  56  N.  W.  920,  holding 
mortgagee  to  whom  "lo-7s  payable  as  interest  may  appear"  bound  by  stipula- 
tions of  policy. 

6  L.  R.  A.  204,  JOHX  SPRY  LUMBER  CO.  v.  SAULT  SAV.  BANK,  LOAN  & 

T.  CO.  77  Mich.  199,  18  Am.  St.  Rep.  396,  43  N.  W.  778. 

Mechanic's   lien   law;    constitutionality   of  statutes   giving  subcontractor 
lien. 

Cited  in  Mellis  v.  Race.  78  Mich.  81,  43  N.  W.  1033;  Snell  v.  Race,  78  Mich. 
336,  44  X.  W.  286;  Koepke  v.  Dyer,  80  Mich.  312,  45  N.  W.  143;  Preston  v. 
Zekind,  84  Mich.  645,  48  X.  W.  180;  Kirkwood  v.  Hoxie,  95  Mich.  64,  35  Am.  St. 
Rep.  549,  54  X.  W.  720, — holding  mechanic's  lien  law  1887  unconstitutional; 
Mc-Masters  v.  West  Chester  State  Normal  School,  2  Pa.  Dist.  R.  759,  10  Lane. 
L.  Rev.  407,  34  W.  N.  C.  460,  and  Waters  v.  Wolf,  162  Pa.  170,  34  W.  N.  C.  416, 
42  Am.  St.  Rep.  815,  29  Atl.  646,  holding  statute  providing  that  no  contract  with 
owner  shall  defeat  right  of  subcontractor  to  lien  unconstitutional ;  Palmer  v. 
Tingle,  55  Ohio  St.  445,  45  N.  E.  313,  holding  statute  giving  subcontractor  a 
lien,  not  based  on  contract  with  owner  and  without  regard  to  amount  due  prin- 
cipal contractor,  unconstitutional;  Selma  Sash,  Door  &  Blind  Factory  v.  Stod- 
dard,  116  Ala.  254.  22  So.  555,  holding  statute  giving  subcontractors  a  lien, 
without  regard  to  amount  due  under  contract,  if  claim  presented  within  thirty 
days,  unconstitutional:  Mallory  v.  LaCrosse  Abattoir  Co.  80  Wis.  185,  49  N.  W. 
1071  (dissenting  opinion),  majority  holding  statute  making  owner  absolutely 
liable  for  claims  of  subcontractors,  without  regard  to  contract  price,  or  owner's 
indebtedness  to  contractor,  valid:  Prince  v.  Neal-Millard  Co.  124  Ga.  888,  53 
S.  E.  761,  4  A.  &  E.  Ann.  Cas.  615,  on  the  unconstitutionality  of  statutes  giv- 
ing liens  to  material  men  and  subcontractors  for  material  or  work  furnished 
contractor;  Kelly  v.  Johnson,  251  111.  141,  36  L.R.A. (N.S.)  577,  95  N.  E.  1068, 
holding  that  section  21  of  Mechanic's  Lien  Law  of  1903  providing  for  subcontract- 
or's lif.n  when  original  contractor  waives  all  liens,  is  unconstitutional. 

Cited  in  notes  (20  L.R.A.  565)  on  constitutionality  of  statutes  giving  labor- 
ers and  material  men  right  to  lien;  (36  L.R.A. (X.S. )  574)  on  constitutionality 
of  statute  giving  mechanic's  lien  contrary  to  agreement  of  contractor. 

Distinguished  in  Jones  v.  Great  Southern  Fireproof  Hotel  Co.  30  C.  C.  A.  115, 
58  U.  S.  App.  397,  86  Fed.  377,  Overruling  79  Fed.  481,  holding  Ohio  statute 
giving  subcontractor  lien,  without  regard  to  amount  due  owner,  but  limited  to 
contract  price,  in  absence  of  fraud,  not  unconstitutional;  Smith  v.  Xewbaur, 
144  Ind.  103,  33  L.  R.  A.  688,  42  N.  E.  40,  holding  statute  giving  subcontractors 
and  material  men  lien  upon  filing  of  notice  of  intention  to  claim  lien  within 
sixty  days  after  labor  or  material  furnished  not  unconstitutional ;  Smalley  v. 
Gearing,  121  Mich.  196,  79  N.  W.  1114,  holding  statute  authorizing  owner  to 


6  L.R.A.  204]  L.  R.  A.  CASES  AS  AUTHORITIES.  1036 

withhold  amounts   due   subcontractors,   and   making  him   liable   in   case  of   pay- 
ment in  disregard  of  sworn  statement  of  contractor,  not  unconstitutional. 
Uiiilits    of   subcontractor    measured    by    those    of    principal    contractor. 

Cited  in  Cudworth  v.  Bostwick,  69  N.  H.  537,  45  Atl.  408,  holding,  under 
statute  giving  subcontractor  "same  lien"  as  provided  for  contractor,  lien  of  sub- 
contractor is  limited  by  what  principal  contractor  could  enforce  against  property. 
Limit*  of  police  power. 

Cited  in  Re  Morgan,  26  Colo.  426,  47  L.  R.  A.  57,  77  Am.  St.  Rep.  269,  58 
Pac.   1071,  holding  statute  restricting  employment  of  working  men  in   smelters 
for  longer  period  than  eight  hours  per  day  not  within  police  power  of  state. 
Partial  Invalidity  of  statute. 

Cited  in  People  v.  De  Blaay,  137  Mich.  404,  100  N.  W.  598,  4  A.  &  E.  Ann.  Gas. 
919,  holding  an  act  failing  to  extend  a  prior  act  for  want  of  description  in  title 
will  fail  also  as  to  part  repealing  general  statutes. 

6  L.  R.   A.  205,  BRINSER  v.  ANDERSON,   129  Pa.   376,   11   Atl.  809,   18  Atl. 

520. 
Possession    as    notice    of    title. 

Cited  in  Pace  v.  Yost,  10  Kulp,  541,  holding  unquestioned  open  possession  of 
land  constructive  notice  of  possessor's  title;  Carnegie  Natural  Gas  Co.  v.  Phila- 
delphia Co.  158  Pa.  329,  27  Atl.  951,  holding  lessor's  possession  constructive 
notice  of  lessee's  assignee  of  forfeiture  of  lease;  Crooks  v.  Jenkins,  124  Iowa,  321, 
104  Am.  St.  Rep.  326,  100  N.  W.  82,  as  disapproving  an  excerpt  from  a  former 
case,  that  possession,  under  a  lease  known  to  purchaser  is  not  constructive  no- 
tice to  him  of  outstanding  equities  in  favor  of  such  lessee;  Harper  v.  Runner, 
85  Neb.  346,  123  N.  W.  313,  holding  that  where  vendee  buys  with  notice  t'nat 
lessee  in  possession  claims  land  under  an  option  in  his  lease,  such  vendee  takes 
title  subject  to  the  option  to  same  extent  as  it  was  binding  on  his  grantor. 

Cited  in  footnote  to  Rock  Island  &  P.  R.  Co.  v.  Dimick,  19  L.  R.  A.  105, 
which  holds  open  and  exclusive  possession  of  passageway  through  railroad  em- 
bankment notice  of  rights  to  purchaser  of  railroad. 

Cited  in  notes    (8  L.R.A.  211)    on  constructive  notice  by  possession  of  land; 
(13  L.R.A.  (N.S.)    71)   on  possession  of  land  as  notice  of  title. 
Parol  contract  for  sale  of  land. 

Cited  in  Schuey  .v.  Schaeffer,  130  Pa.  18,  18  Atl.  544,  holding  parol  contract 
for  sale  of  land  followed  by  possession  and  improvement,  enforceable;  Fay's 
Estate,  213  Pa.  429,  62  Atl.  991,  35  Pittsb.  L.  J.  N.  S.  324,  holding  parol  sale 
of  lots  by  name  of  addition  to  city  plat  they  being  all  that  grantor  had  there 
was  definite  enough  to  enforce  sale  to  buyer  who  went  into  immediate  posses- 
sion: Eisenberger  v.  Eisenberger,  25  Lane.  L.  Rev.  324;  Lemmon  v.  Lemmon,  47 
Pa.  Super.  Ct.  609, — holding  that  parol  contract  for  sale  of  land  must  be  proved 
by  clear,  precise  and  indubitable  evidence. 

6  L.  R.  A.  207,  TOMLINSON  v.  BOARD  OF  EQUALIZATION,  88  Tenn.  1,  12 

S.  W.  414. 
Certiorari ;     when    issnable. 

Cited  in  Hayden  v.  Memphis.  100  Tenn.  585,  47  S.  W.  182,  holding,  in  ab- 
sence of  statutory  right  to  appeal,  removal  of  officer  by  city  council  reviewable 
by  certiorari. 

Criticized  and  distinguished  in  Staples  v.  Brown,  113  Tenn.  653,  85  .S.  W. 
254,  holding  candidate  for  city  office  who  has  unsuccessfully  contested  his  elec- 


1037  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  212 

tion  before  city  council  from  which  no  appeal  is  provided  is  entitled  to  a  trial 
de  novo  before  circuit  court  on  certiorari. 
Power    to    reasseaa. 

Cited  in  Iron  Companies  v.  Pace,  89  Tenn.  720,  15  S.  W.  1077,  holding  power 
of  court  to  make  reassessment  terminated  absolutely  at  expiration  of  time  al- 
lowed. 

6  L.  R.  A.  212,  ALBANY  v.  McNAMARA,   117  N.  Y.   168,  22  N.  E.  931. 
Voluntary    expenditures    not    recoverable    from    person    benefited. 

Cited  in  Oneida  County  v.  Bartholomew,  82  Hun,  83,  31  N.  Y.  Supp.  106,  and 
Montgomery  County  v.  Gupton,  139  Mo.  308,  39  S.  W.  447,  holding  money 
voluntarily  paid  for  support  of  insane  pauper  not  recoverable  from  estate; 
Montgomery  County  v.  Xyce,  161  Pa.  83,  28  Atl.  999,  Affirming  13  Pa.  Co.  Ct. 
595,  holding,  in  absence  of  statute,  pauper's  subsequently  acquired  estate  not 
liable  for  past  voluntary  maintenance;  Xewburgh  Sav.  Bank  v.  Woodbury,  64 
App.  Div.  308,  72  X.  Y.  Supp.  222,  holding  money  voluntarily  paid  to  drafted 
men  under  unconstitutional  statute  not  recoverable;  Koehler  v.  Hughes,  4  Misc. 
238,  24  N.  Y.  Supp.  760,  holding  taxes  voluntarily  paid  on  whole  property  by 
mortgagee  of  undivided  share  not  recoverable;  Farrar  v.  Farmers'  Loan  &  T. 
Co.  85  App.  Div.  482,  83  N.  Y.  Supp.  218,  holding  evidence  of  declaration  of 
intention  to  accept  devise,  providing  devisees  should  pay  mortgage,  relevant  in 
action  for  one  half  of  sum  paid  by  one  devisee;  State  v.  Colligan,  128  Iowa, 
538,  104  X.  W.  905.  holding  that  in  the  absence  of  statutory  provision  the  state 
cannot  recover  compensation  for  the  keeping  of  a  nonresident  lunatic  in  its 
hospital;  Chariton  County  v.  Hartman,  190  Mo.  77,  88  S.  W.  617,  holding  county 
cannot  maintain  an  action  against  the  guardian  of  an  indigent  insane  person 
for  taking  charge  of  and  maintenance  of  such  person  under  statute  imposing 
such  burden;  Hathaway  v.  Delaware  County,  103  App.  Div.  183,  93  N.  Y.  Supp. 
436,  holding  that  a  voluntary  payment  of  money  to  one  for  the  use  of  another 
cannot  be  recovered  from  the  latter  unless  a  request  for  such  payment  be 
shown;  Re  Carroll,  55  Misc.  498,  106  N.  Y.  Supp.  681,  holding  city  cannot 
recover  from  estate  of  person  maintained  in  poorhouse  on  grounds  that  it  was 
deceived  as  to  her  financial  condition  unless  actionable  deceit  on  her  part  pro- 
curing her  commitment  is  proven;  Re  Brown,  60  Misc.  42,  112  X.  Y.  Supp.  599, 
on  the  nonrecovery  of  money  voluntarily  paid  out  by  one  for  another;  Sterling 
v.  Chelsea  Marble  Works,  62  Misc.  629,  115  N.  Y.  Supp.  1096,  holding  that  where 
from  the  nature  and  circumstances  of  the  payment  a  request  of  person  benefited 
may  be  implied,  recovery  can  be  had;  Re  Rider,  68  Misc.  272,  124  X.  Y.  Supp.  1001, 
holding  that  request  of  person  benefited  to  make  payment  must  be  shown  in 
order  to  recover  back  money  paid  for  such  other  benefit;  Stewart's  Estate,  38 
Pa.  Super.  Ct.  180,  holding  an  obligation  to  reimburse  cannot  be  implied  from 
the  acceptance  of  charity  from  poor  district  by  a  poor  person  in  absence  of 
statute  providing  for  compensation:  Re  Whitesell,  11  Xorth.  Co.  Rep.  375, 
holding  that  poor  district  can  recover  rents  from  life  estate  of  pauper,  which 
have  been  collected  and  appropriated  by  his  daughter;  State  v.  Ikey,  84  Vt. 
369,  79  Atl.  850,  to  the  point  that  money  expended  by  town  in  support  of 
pauper  cannot  be  recovered  of  pauper  without  contract,  express  or  implied,  of 
repayment;  Re  Gouverneur  Pub.  Co.  168  Fed.  117,  holding  payment  by  manager 
as  secretary  and  treasurer,  of  company  indebtedness  with  his  own  funds  ac- 
quiesced in  by  company  for  years  as  a  frequent  practice,  not  a  voluntary 
payment. 

Cited  in  footnotes  to  McXairy  County  v.  McCoin,  41  L.  R.  A.  862,  which 
authorizes  action  for  reimbursement  by  county,  supporting  lunatic  as  pauper 


6  L.R.A.  212]  L.  R.  A.  CASES  AS  AUTHORITIES.  1038 

because  of  guardian's  neglect;  Bon  Homme  County  v.  Berndt,  50  L.  R.  A.  351. 
which  sustains  statute  making  estates  of  insane  persons,  without  heirs  in  United 
States  dependent  thereon  for  support,  chargeable  with  expense  of  maintenance 
in  hospital;  McCook  County  v.  Kammoss,  31  L.  R.  A.  461,  which  holds  children 
liable  under  statute  to  county  furnishing  support  to  poor  parents;  Richardson 
v.  Stuesser,  69  LJI.A.  829,  which  denies  husband's  liability  for  support  of  his 
wife  at  an  insane  asylum  to  which  she  has  been  removed  by  due  process  of  law. 

Cited  in  note   (55  L.  R.  A.  570)    on  liability  of  alleged  pauper  or  his  estate 
to  pay  for  support  or  gifts  obtained  on  ground  of  poverty. 
Indigent  persons;  who  are. 

Cited  in  Bartlett  v.  Ackerman,  49  N.  Y.  S.  R.  297,  21  N.  Y.  Supp.  53,  hold- 
ing woman  with   four   small   children,  unable  to   work,  without  means   of   sup- 
port, and  receiving  public  assistance,  indigent. 
Existence   of  jnrisdictional    fact   not   presumed. 

Cited  in  Hannah  v.  Chase,  4  N.  D.  355,  50  Am.  St.  Rep.  656,  61  N.  W.   18, 
holding  existence  of  jurisdictional   fact  not  presumed,   though   founded   on   pre- 
sumption of  performance  of  official  duty. 
Presumption  of  investigation  as  to  panper. 

Cited  in  Re  Chamberlain,  73  Misc.  261,  132  N.  Y.  Supp.  681,  holding  that  it 
is  presumed  where  relief  is  granted  to  poor  person  that  officer  has  made  investi- 
gation and  determined  right  of  party. 

6  L.  R.  A.  214,  CARROLL  v.  EAST  TENNESSEE,  V.  &  G.  R.  CO.  82  Ga.  452, 

10  S.  E.   163. 
Motions   in   term   continues   until   disposed  of. 

Cited  in  Helmly  v.  Davis,  111  Ga.  860,  36  S.  E.  927,  holding  jurisdiction  to  pro- 
ceed in  term  not  lost  by  order  to  hear  motion  in  chambers. 
Res  gestae;   narratives  of  past  occurrences. 

Cited  in  Wabash  R.  Co.  v.  Farrell,  79  111.  App.  511,  holding  written  report  of 
engineer  of  accident  not  witnessed,  which  it  was  his  duty  to  report,  inadmissible; 
Travelers  Ins.  Co.  v.  Sheppard,  85  Ga.  765,  12  S.  E.  18,  holding  ex  parte  affidavits 
furnished  to  insurer  as  preliminary  proof  of  insured's  death,  inadmissible  to  show 
bad  faith  in  refusing  payment;  White  v.  Southern  R.  Co.  123  Ga.  358,  51  S.  E. 
411,  holding  statement  by  son  of  injured  person  made  the  morning  after  acci- 
dent in  presence  of  two  persons  and  committed  to  writing,  not  admissible  as 
part  of  res  gestae  of  the  accident. 
Rule  of  railroad;  ^vhen  obligatory. 

Cited  in  Central  R.  &  Bkg.  Co.  v.  Ryles,  84  Ga.  431,  11  S.  E.  499,  holding  rules 
of  railroad  company  not  obligatory  unless  promulgated;  Little  v.  Southern  R. 
Co.  120  Ga.  352,  66  L.R.A.  512,  102  Am.  St.  Rep.  104,  47  S.  E.  953,  holding 
employee  only  bound  by  rules  promulgated  by  company  and  of  which  he  has 
knowledge;  Atlantic  Coast  Line  R.  Co.  v.  McLeod,  9  Ga.  App.  19,  70  S.  E.  214, 
holding  that  rules  of  master  are  not  binding  on  servant,  unless  he  has  actual  or 
constructive  knowledge  of  them;  Seaboard  Air  Line  R.  Co.  v.  Shanklin.  78  C. 
C.  A.  334,  148  Fed.  345,  holding  company  rules  for  employees  same  as  law  in 
regulation  of  their  conduct  where  established  and  promulgated  in  same  reason- 
able way  and  employees  have  knowledge  of  them. 

Cited  in  notes  (12  L.  R,  A.  344)  on  rules  to  insure  safety  of  employees;   (43  L. 
R.  A.  318,  358)   on  duties  of  master  and  servant  as  to  rules  promulgated  for  safe 
conduct  of  business. 
Admisslbllity  of  declarations  of  agents. 

Cited   in  notes    (131  Am.  St.  Rep.  316)    on  declarations  and  acts  of  agents; 


1039  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  218 

(18   L.R.A.  (X.S.)    233)    on   admissibility   of   reports   by   agent   or   employee   to 
employer,  to  prove  fact  in  issue. 
Declarations  of  officers  as  admissions  of  corporation. 

Cited  in  Robert  R.  Sizer  &  Co.  v.  Melton,  129  Ga.  148,  58  S.  E.  1055,  holding 
testimony  of  a  district  manager  of  lumber  company  not  impliedly  an  admission 
of  the  company,  it  not  being  in  the  scope  or  course  of  his  employment;  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Burks,  78  Kan.  524,  18  L.R.A.  (N.S.)  237,  96  Pac.  950, 
holding  report  of  inspector  made  before  or  after  inspection  not  an  admission 
of  company  where  such  inspector  has  no  authority  to  bind  the  company  by  his 
statements;  Ex  parte  Schoepf,  74  Ohio  St.  16,  6  L.R.A. (N.S.)  330,  77  X.  E. 
276,  holding  a  report  of  an  accident  made  by  conductor  as  per  company  rule 
and  in  the  hands  of  company  counsel  is  privileged  and  its  production  cannot 
be  enforced  before  trial;  United  States  v.  La  Abra  Silver  Min.  Co.  32  Ct.  Cl. 
491,  holding  the  statements  of  mining  superintendent  made  at  the  time  of 
occurrence  and  in  the  ordinary  course  of  business  must  be  regarded  as  state- 
ments of  company. 
Contributory  negligence. 

Cited  in  Georgia  P.  R.  Co.  v.  Davis,  92  Ala.  310,  25  Am.  St.  Rep.  47.  9  So. 
252.  holding  that  contributory  negligence  cannot  be  imputed  to  brakeman  on 
account  of  violation  of  rules  when  it  appears  that  his  conduct  was  in  accordance 
with  general  custom;  Jackson  v.  Georgia  Southern  &  F.  R.  Co.  132  Ga.  140,  63  S. 
E.  841,  holding  contributory  negligence  of  fireman  a  question  for  the  jury  on 
the  evidence  that  he  stayed  at  his  post  while  the  engineer  negligently  took  the 
engine  out  on  the  tracks;  Southern  R.  Co.  v.  Hopkins,  88  C.  C.  A.  312,  161 
Fed.  270,  holding  a  charge  which  assumes  to  determine  contributory  negligence 
is  an  invasion  of  the  province  of  the  jury. 

6  L.  R.  A.  218,  WILLIAMS  v.  EVANS,  87  Ala.  725,  6  So.  702. 

Illegality  of  contracts  involving  issuance  of  fictitious  stock  or  bonds. 

Cited  in  Williams  v.  Searcy,  94  Ala.  363,  10  So.  632,  holding  agreement  to  issue 
to  vendor  stock  double  the  consideration  in  land  contract,  illegal;  Alabama  Nat. 
Bank  v.  Halsey,  109  Ala.  208,  19  So.  522,  holding  note  given  for  stock  thereafter 
to  be  issued,  $2  for  each  $1,  void;  Smith  v.  Alabama  Fruit  Growing  &  Winery 
Asso.  123  Ala.  541,  26  So.  232,  holding  contract  by  corporation  to  pay  to  sub- 
scriber dividends  equal  to  amount  paid  for  stock  void ;  Gay  v.  Brierfield  Coal  &  I. 
Co.  94  Ala.  326,  16  L.  R.  A.  574,  33  Am.  St.  Rep.  122,  11  So.  353,  holding  cor- 
porate bonds  and  mortgage,  issued  without  consideration,  fraudulent  as  to  cred- 
itors; Tutwiler  v.  Tuskaloosa  Coal,  Iron  &  Land  Co.  89  Ala.  399,  7  So.  398,  rais- 
ing, without  deciding,  question  of  validity  of  stock  issued  on  basis  of  overvalua- 
tion: San  Antonio  Irrig.  Co.  v.  Deutschmann,  102  Tex.  208,  114  S.  W.  1174, 
holding  a  contract  of  purchase  of  corporation  stock,  the  purchase  price  to  be 
paid  any  time  in  the  future  is  void  with  respect  to  provision  for  future  payment. 

Distinguished  in  Beitman  v.  Steiner  Bros.  98  Ala.  248,  13  So.  87,  holding  note 
given   for   stock  already  issued,   with   knowledge  of  its   issuance   upon   fictitious 
value,  valid. 
Corporations;    issue   of   fictitious   stock. 

Cited  in  State  ex  rel.  Sanche  v.  Webb,  97  Ala.  119,  38  Am.  St.  Rep.  151,  12  So. 
377.  holding  certificate  of  organization  issued  upon  fraudulent  affidavit  of  paid-up 
stock  does  not  waive  state's  right  to  vacate  charter. 

Cited  in  note  (87  Am.  St.  Rep.  850)  on  fraudulent  and  over-issued  corporate 
stock. 


6  L.R.A.  218]  L.  R.  A.  CASES  AS  AUTHORITIES.  1040 

—  Liability    of    holders    to    creditors. 

Cited  in  Gilkie  &  A.  Co.  v.  Dawson  Town  &  Gas  Co.  46  Xeb.  350,  64  N.  W.  978r 
holding  subscriber  paying  for  stock  in  property  liable  for  difference  between  real 
and  fictitious  valuation;  Leucke  v.  Tredway,  45  Mo.  App.  518,  holding  taker  of 
shares  from  corporation  at  less  than  par  liable  for  difference  in  creditor's  action; 
Elyton  Land  Co.  v.  Birmingham  Warehouse  &  Elevator  Co.  92  Ala.  415,  12  L.  R. 
A.  310,  25  Am.  St.  Rep.  65,  9  So.  129,  holding  holders  of  stock  issued  for  grossly 
over-valued  property  liable  as  for  unpaid  subscriptions;  Grant  v.  East  &  West  R. 
Co.  4  C.  C.  A.  518,  13  U.  S.  App.  1,  54  Fed.  576,  holding  subscribers  paying  for 
stock  in  property  at  bona  fide  valuation  not  liable. 

Distinguished  in  Davis  Bros.  v.  Montgomery  Furnace  &  Chemical  Co.  101  Ala. 
129,  8  So.  496,  holding  subscriber  to  bonds  receiving  bonus  stock  issued  for  prop- 
erty not  liable,  on  failure  to  pay  subscription,  as  upon  unpaid  stock  subscription. 

6  L.  R.  A.  219,  NOUNNAN  v.  SUTTER  COUNTY  LAND  CO.  81  Cal.  1,  22  Pac. 

515. 
Statements   of   opinion. 

Cited  in  Choate  v.  Hyde,  129  Cal.  584,  62  Pac.  118,  holding  expression  of  opin- 
ion as  to  sufficiency  of  title,  based  on  facts  equally  accessible  to  both  parties,  not 
fraud;  Taylor  v.  Ford,  131  Cal.  445,  63  Pac.  770,  holding  statements  as  to  value 
of  book  accounts  upon  sale  of  interest  by  one  partner  to  another  not  fraudulent ; 
American  Nat.  Bank  v.  Hammond,  25  Colo.  372,  55  Pac.  1090,  holding  bank  not 
liable  for  expression  as  to  solvency  of  person;  Krasilnikoff  v.  Dundon,  8  Cal. 
App.  412,  97  Pac.  172,  holding  allegation  of  misrepresentations,  purely  as  to 
matter  of  opinion  insufficient  to  charge  fraud  in  breach  of  warranty;  Johnson 
v.  Withers,  9  Cal.  App.  55,  98  Pac.  42,  holding  representation  as  to  amount  of 
minerals  in  a  place  is  as  to  a  matter  of  fact  and  not  as  to  a  matter  of  opinion. 

Cited  in  notes  (35  L.  R.  A.  439)  on  expression  of  opinion  as  fraud;  (10  L.  R.  A. 
606)  on  necessity  of  clear  and  strong  proof  of  fraud;  (35  L.R.A.  439)  on 
expression  of  opinion  as  fraud;  (14  Am.  St.  Rep.  407;  18  Am.  St.  Rep.  556, 
563;  12  Eng.  Rul.  Gas.  297)  on  what  constitutes  fraudulent  representations 
and  liability  therefor. 
Waiver  of  fraud. 

Cited  in  Schmidt  v.  Mesmer,  116  Cal.  272,  48  Pac.  54,  holding  claim  for  dam- 
ages for  fraudulently  misrepresenting  income  of  hotel  waived  by  lessee's  continued 
occupancy  without  complaint;  Lee  v.  McClelland,  120  Cal.  151,  52  Pac.  300,  hold- 
ing claim  for  damages  from  fraudulent  representations  prior  to  making  land  con- 
tract waived  by  substitution  of  more  favorable  contract  after  occupying  land; 
Baltimore  &  0.  R.  Co.  v.  Jolly  Bros.  71  Ohio  St.  129,  72  N.  E.  888,  on  com- 
pletion of  performance  after  discovery  of  fraud  as  not  a  waiver  of  the  fraud 
where  it  is  impractical  to  stop  performance;  Kelly  v.  Delaney,  136  App.  Div. 
614,  121  N.  Y.  Supp.  241,  holding  that  where  a  party  to  a  partly  executed 
contract  discovers  fraud  in  its  procurement  and  thereafter  completes  the  execu- 
tion he  waives  his  right  of  action  thereon. 

6  L.  R.  A.  222,  STATE  ex  rel.  WINE  v.  KEOKUK  &  W.  R.  CO.  99  Mo.  30,  12  S. 

W.  290. 
Corporate   exemptions. 

Followed  in  Keokuk  &  W.  R.  Co.  v.  County  Court,  41  Fed.  306,  holding  railroads 
consolidated  after  passage  of  tax  exemption  act  not  entitled  to  its  benefit. 

Cited  in  Sublette  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  96  Mo.  App.  124,  69  S.  W.  745, 
holding  exemption  of  railroad  from  actions  for  killing  stock  not  transferable. 

Cited  in  footnote  to  Lake  Drummond  C.  &  W.  Co.  v.  Com.  68  L.R.A.  92,  which 


1041  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  226 

denies  power  of  legislature  to  transfer  to  new  corporation  old  company's  exemp- 
tion from  taxation  after  adoption  of  constitutional  provision  for  taxation  of  all 
property. 
Corporations;    consolidation. 

Cited  in  Winn  v.  Wabash  R.  Co.  118  Fed.  58,  holding  that  consolidation  works 
dissolution  of  old,  and  formation  of  new,  corporation;  State  ex  rel.  Houck  v.  Le- 
sueur,  145  Mo.  328,  46  S.  W.  1075,  holding  that  consolidation  forms  new  corpora- 
tion, liable  for  incorporation  fees;  Evans  v.  Interstate  Rapid  Transit  R.  Co.  106 
Mo.  601,  17  S.  W.  489,  holding  question  whether  consolidation  dissolves  constit- 
uent corporations  depends  on  statute;  State  ex  rel.  Hobart  v.  Smith,  173  Mo.  409, 
73  S.  W.  211,  Affirming  98  Mo.  App.  235,  68  S.  W.  942,  holding  consolidated  com- 
pany may  enforce  bond  running  to  constituent  company  for  default  occurring  after 
consolidation;  Smith  v.  Cleveland,  C.  C.  &  St.  L.  R,  Co.  170  Ind.  394,  81  N. 
E.  501,  holding  consolidation  to  result  in  formation  of  one  corporation  regarded 
as  a  domestic  corporation  in  each  of  the  states  where  laws  are  followed  in 
effecting  the  consolidation. 

Cited   in  note    (89   Am.   St.   Rep.   614,   616,  617,   626,   650,   651)    on  effect  of 
consolidation  of  corporations. 
Corporation   bound  by  acceptance   of  charter. 

Cited  in  St.  Louis  R.  Co.  v.  Southern  R.  Co.  105  Mo.  586,  16  S.  W.  960,  holding 
railroad  company  accepting  provisions  of  city  charter  bound  by  provision  per- 
mitting use  of  tracks  by  another  company. 
Res  jndicata. 

Cited  in  Womach  v.  St.  Joseph,  201  Mo.  490,  10  L.R.A.(N.S.)  149,  100  S.  W. 
443,  on  former  judgment  as  res  judicata. 

Cited  in  note   (20  Am.  St.  Rep.  356)   on  what  does  not  constitute  res  judicata. 

6  L.  R.  A.  226,  ARMSTRONG  v.  CHEMICAL  NAT.  BANK,  41  Fed.  234. 

Action  to  compel  allowance  of  claim  in  Chemical  Nat.  Bank  v.  Armstrong,  50 
Fed.  800. 
Insolvent  national  banks;  preferences. 

Cited  in  Stapylton  v.  Stockton,  33  C.  C.  A.  546,  63  U.  S.  App.  412,  91  Fed.  330, 
holding  security  given  by  insolvent  national  bank  good  for  present,  but  not  ante- 
cedent, advances;  Booth  v.  Atlantic  Clearing  House  Asso.  132  Ga.  103,  63  S.  E. 
907,  holding  the  depositing  of  collaterals  to  secure  payment  of  certificates  from 
trustees  of  clearing  house  was  not  such  a  transfer  as  created  a  preference  within 
the  statute. 

Cited  in  note   (25  L.  R.  A.  548)   on  exceptions  to  prohibition  of  preferences  by 
insolvent  national  banks. 
Attachment    of   national    bank   stock. 

Cited  in  footnote  to  Doty  v.  First  Nat.  Bank,  17  L.  R.  A.  259,  which  holds  right 
of  transferee  of  national  bank  stock  under  unrecorded  transfer  superior  to  sub- 
sequent attachment. 
Banker's    lien    on    deposits. 

Cited  in  Re  Gesas,  77  C.  C.  A.  201,  146  Fed.  736,  holding  the  banker's  lien 
attaches  only  to  such  property  as  is  received  in  the  usual  course  of  the  banking 
business;  Van  Zandt  v.  Hanover  Xat.  Bank  79  C.  C.  A.  23,  149  Fed.  129,  holding 
it  does  not  attach  upon  securities  which  are  deposited  with  the  banker  for  a 
special  purpose. 

Cited  in  footnote  to  Gardner  v.  First  Xat.  Bank.  10  L.  R.  A.  45,  which  holds 
authority  given  to  bank  to  apply  deposits  to  notes  before  maturity  terminates 
with  death  of  depositor. 

L.R.A.  Au.  Vol.  I. — 66. 


6  L.E.A.  22tij  L.  R.  A.  CASES  AS  AUTHORITIES.  1042 

Cited  in  note  (111  Am.  St.  Rep.  425)  on  bankers'  liens  not  founded  on 
contract. 

6  L.  R.  A.  230,  NELSON  COUNTY  v.  NORTHCOTE,  6  Dak.  378,  43  N.  W.  897. 
Liability  'or  acts  resulting-  in  embezzlement  of  county  funds. 

Cited  in  Hudson  v.  McArthur,  152  N.  C.  452,  28  L.R.A.  (N.S.)  120,.  67  S.  E. 
995,  holding  negligence  of  county  commissioners  in  failing  to  settle  with  county 
sheriff  as  required  by  statute  does  not  render  them  liable  to  sureties  on  sheriff's 
bond. 

6  L.  R.  A.  234,  STATE  v.  ST.  PAUL  UXIOX  DEPOT  CO.  42  Minn.  142,  43  N.  W. 
840. 

Referred  to  in  St.  Paul  Union  Depot  Co.  v.  Minnesota  &  N.  W.  R.  Co.  47 
Minn.  156,  13  L.R.A.  416,  49  N.  W.  646;  Chicago  G.  W.  R.  Co.  v.  St.  Paul 
Union  Depot  Co.  68  Minn.  221,  71  N.  W.  23,  for  statement  of  character  and 
object  of  depot  company;  Chicago,  St.  P.  &  K.  C.  R.  Co.  v.  St.  Paul  Union 
Depot  Co.  54  Minn.  414,  56  N.  W.  129,  for  terms  upon  which  plaintiff  shared 
privileges  of  depot  of  defendant;  Floody  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  109 
Minn.  236,  134  Am.  St.  Rep.  771,  123  N.  W.  815,  for  statement  of  character  of 
union  depot  company  as  servant  of  railroads. 
Taxation  of  corporations. 

Cited  in  Com.  v.  Ledman,  127  Ky.  613,  106  S.  W.  247,  holding  that  foreign 
holding  corporation  is  not  taxable:  Board  of  Equalization  v.  Louisville  &  N. 
R.  Co.  139  Ky.  394,  109  S.  W.  303,  to  the  point  that  bridge  used  by  railway 
is  railroad  property  and  liable  to  taxation  as  such;  First  Nat.  Bank  v.  Douglas 
County,  124  Wis.  21,  102  N.  W.  315,  4  A.  &  E.  Ann.  Cas.  34,  holding  under 
statute  exempting  "capital"  of  bank  from  taxation  the  property  purchased  with 
capital  is  also  exempt;  Com.  v.  Lehigh  Valley  R.  Co.  3  Dauphin  Co.  Rep.  329. 
holding  that  tax  against  railroad  corporation  on  property  situated  in  another 
state  is  double  taxation  where  such  property  is  also  taxed  in  state  where  located. 

Cited  in  notes  (6  L.  R.  A.  222)  on  taxation  of  consolidated  corporations;  (58 
L.  R.  A.  591)  on  double  taxation  of  corporations. 

Distinguished  in  St.  Louis  &  S.  F.  R.  Co.  v.  Williams,  53  Ark.  65,  13  S.  W.  796. 
holding  railway  bridge  assessable  to  bridge  corporation  owning  same,  rather  than 
to  railroad  using  bridge  as  lessee. 

6  L.  R.  A.  236,  THOMPSON  v.  WINTER,  42  Minn.  121,  43  N.  W.  796. 
Specific   performance   of   real   estate   contracts. 

Cited  in  Abbott  v.  Moldestad,  74  Minn.  300,  73  Am.  St.  Rep.  348,  77  N.  W.  227, 
holding  discretion  of  court  in  decreeing  specific  performance  must  not  be  arbi- 
trary or  capricious,  but  judicial. 

Cited  in  footnote  to  Atchison,  T.  &  S.  F.  R.  Co.  v.  Chicago  &  W.  L  R.  Co.  35  L. 
R.  A.  167,  which  refuses  to  require  payment  of  interest  not  provided  for  as  con- 
dition of  specific  performance  of  contract. 

6  L.  R.  A.  238,  ANDRES  v.  CIRCUIT  JUDGE,  77  Mich.  85,  43  N.  W.  857. 
Mandamus    to    compel    quo    vrarranto. 

Cited  in  Lamoreaux  v.  Ellis,  89  Mich.  149,  50  N.  W.  812,  denying  defeated  can- 
didate's petition  for  mandamus   in  quo  warranto  to  test  sheriff-elect's  right  to 
office. 
.Effect  of  a  declaration  of  intention  to  become  a  citizen. 

Cited  in  United  States  v.  Breen,  135  App.  Div.  825,  120  N.  Y.  Supp.  304, 
holding  the  declaration  of  an  intention  to  become  a  citizen  is  a  mere  expression 


1043  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  241 

of  a  state  of  mind  and  the  filing  and  formal  record  thereof  is  ministerial,  not 

judicial. 

Qualifications    of    voters. 

Cited  in  note  (19  Am.  St.  Rep.  567)  on  qualifications  of  voters. 

€  L.  R.  A.  241,  CINCINNATI,  I.  ST.  L.  &  C.  R.  CO.  v.  COOPER,  120  Ind.  469,  16 

Am.  St.  Rep.  334,  22  N.  E.  340.  . 

Liability    for    probable    consequences    of    wrongful    act. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Nitsche,  126  Ind.  233,  9  L.  R.  A.  752, 
22  Am.  St.  Rep.  582,  26  N.  E.  51,  holding  railroad  liable  for  damage  from  spread 
of  fire  set  on  right  of  way,  when  result  probable  under  circumstances;  Ohio  &  M. 
R.  Co.  v.  Trowbridge,  126  Ind.  396,  26  N.  E.  64,  holding  hand  car  left  in  highway, 
whereby  plaintiff's  horse  took  fright,  and  threw  her,  proximate  cause  of  injury, 
which  might  have  been  anticipated. 

Cited  in  footnote  to  People  v.  Lewis,  45  L.  R.  A.  783,  which  holds  suicide  of 
person  mortally  wounded  does  not  relieve  assailant  from  guilt  of  manslaughter. 

Cited  in  note  (36  Am.  St.  Rep.  829)  on  liability  for  sickness  or  other  physical 
incapacity  resulting  from  wrongful  acts. 
Inferable  negligence. 

Cited  in  Price  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  75  Ark.  492,  112  Am.  St.  Rep. 
79,  88  S.  W.  575,  holding  the  doctrine  of  res  ipsa  loquitur  does  not  apply  where 
the  accident  might  as  plausibly  have  happened  from  negligence  on  part  of  pas- 
senger as  on  part  of  carrier. 
Care  dne  to  helpless  persons. 

Cited  in  note   (69  L.R.A.  518)   on  care  due  to  sick,  infirm,  or  helpless  persons, 
with  whom  no  contract  relation  is  sustained. 
Duty    of    railroad To    passenger. 

Cited  in  Wheeler  v.  Grand  Trunk  R.  Co.  70  N.  H.  614,  54  L.  R,  A.  956,  foot- 
note p.  955,  50  Atl.  103.  holding  intoxication  of  passenger  does  not  preclude  recov- 
ery for  injury  from  falling  off  train,  if  railroad  employees,  knowing  his  condi- 
tion, could  have  prevented  accident  by  exercise  of  due  care;  Fisher  v.  West  Vir- 
ginia &  P.  R.  Co.  42  W.  Va.  199,  33  L.  R.  A.  75,  24  S.  E.  570  (dissenting  opinion), 
majority  holding  contributory  negligence  of  intoxicated  passenger  insisting  on 
riding  on  platform  of  car,  against  protest  of  conductor,  precludes  recovery  for 
injury  from  falling  off  car;  Louisville,  H.  &  St.  L.  R.  Co.  v.  Gregory,  141  Ky. 
765,  35  L.R.A.(N.S.)  325,  133  S.  W.  805,  holding  that  trainmen  are  obliged  to 
exercise  reasonable  care  for  intoxicated  passenger  when  they  discover  his  help- 
less, irresponsible  or  incapable  condition;  Black  v.  New  York,  N.  H.  &  H.  R.  Co. 
103  Mass.  453,  7  L.R.A. (N.S.)  152,  79  N.  E.  797,  9  A.  &  E.  Ann.  Cas.  485, 
"holding  the  carrier  liable  for  injuries  resulting  though  plaintiff  was  intoxicated 
if  its  negligent  acts  were  done  with  knowledge  of  his  condition. 

Cited  in  footnotes  to  Reed  v.  Louisville  &  N.  R.  Co.  44  L.  R.  A.  823,  which  re- 
quires railroad  company  to  stop  and  rescue  passenger  fallen  or  thrown  from 
train,  only  when  possible  without  risk  of  collision;  Southern  P.  Co.  v.  Tarin,  54 
L.  R.  A.  240,  which  holds  carrier  liable  for  injury  to  unwarned  passenger  in  car 
left  standing  till  undermined  by  freshet;  Fisher  v.  West  Virginia  &  P.  R.  Co.  23 
L.  R.  A.  758,  which  holds  carrier  not  liable  for  injury  to  drunken  passenger 
coming  down  car  step  without  conductor's  knowledge  and  falling  off;  Bageard  v. 
Consolidated  Traction  Co.  49  L.  R.  A.  424,  which  denies  carrier's  liability  for 
injury  to  sick  passenger,  supposed  to  be  intoxicated,  while  going  towards  back 
of  station,  after  being  helped  to  front  where  way  open  to  street;  Chesapeake  & 
•O.  R,  Co.  v.  Saulsberry,  56  L.  R.  A.  580.  which  denies  liability  to  drunken  pas- 


6  L.R.A.  241]  L.  R.  A.  CASES  AS  AUTHORITIES.  1044 

senger  ejected  at. station  where  ticket  expires,  for  injuries  in  attempting  to  re- 
enter  train;  Pullman  Palace  Car  Co.  v.  Smith,  13  L.  R.  A.  215,  which  holds 
sleeping-car  company  liable  for  servants  causing  passengers  to  get  off  at  wrong 
place;  Southern  R.  Co.  v.  Hobbs,  63  L.R.A.  68,  which  holds  promise  by  conductor 
to  assist  partially  blind  passenger  in  alighting  not  an  undertaking  to  escort  her 
from  her  seat  to  the  platform;  Korn  v.  Chesapeake  &  O.  R.  Co.  63  L.R.A.  873, 
which  denies  liability  of  carrier  for  death  of  intoxicated  passenger  expelled  from 
train  within  village  when  temperature  was  near  the  freezing  point;  Fox  v. 
Michigan  C.  R.  Co.  68  L.R.A.  336,  which  holds  carrier  liable  where  employees 
in  charge  of  train  knowingly  permit  person  beastly  drunk  to  go  out  alone  on 
platform  of  moving  car. 

Cited  in  notes  (8  L.  R.  A.  674)  on  duty  of  carrier  to  use  care  for  safety  of  pas- 
senger; (19  L.  R.  A.  327)  on  exposure  of  drunken  passenger  to  danger  by  ejec- 
tion from  car;  (10  L.  R.  A.  140)  on  duty  of  carrier  to  inebriates;  (40  L.  R.  A. 
144)  on  intoxication  as  affecting  negligence;  (35  L.  ed.  U.  S.  921)  on  negligence 
of  railroad  companies  toward  passengers. 
To  trespasser  on  track. 

Cited  in  footnotes  to  Clark  v.  Wilmington  &  W.  R,  Co.  14  L.  R.  A.  749,  which 
holds  negligence  in  getting  on  railroad  trestle  does  not  relieve  from  liability  in 
running  down;  Becker  v.  Louisville  &  X.  R.  Co.  53  L.  R.  A.  268,  which  requires 
checking  speed  to  enable  trespasser,  discovered  on  railroad  bridge,  to  escape; 
Raines  v.  Chesapeake  &  O.  R.  Co.  24  L.  R.  A.  226,  which  holds  railroad  employees 
have  right  to  presume,  on  giving  signals,  that  person  on  track  will  step  aside; 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Tartt,  49  L.  R.  A.  99,  which  denies  duty  towards 
trespassers  on  track  before  discovery;  Schreiner  v.  Great  Northern  R.  Co.  58  L. 
R.  A.  75,  which  denies  railroad's  liability  to  trespasser  on  tracks,  pushed  in  front 
of  train  by  stray  cow;  Patton  v.  East  Tennessee,  V.  &  G.  R.  Co.  12  L.  R.  A.  184, 
which  holds  duty  owed  to  trespassers  to  have  lookouts  on  rear  section  of  train 
broken  in  two,  to  give  warning. 

Cited    in    notes     (11    L.R.A.    385;    69    L.R.A.    543)     on    duty    of    railroad    to 
trespassers. 
Recklessness  as  snowing   wilful   intent. 

Cited  in  Lake  Erie  &  W.  R.  Co.  v.  Brafford,  15  Ind.  App.  662,  43  N.  E.  882, 
holding  wilful  killing  inferred  from  failure  of  engineer  to  reduce  speed  until 
within  40  feet  of  man  on  track  with  back  to  train;  Southern  R.  Co.  v.  McXeeley, 
44  Ind.  App.  134,  88  N.  E.  710,  holding  that  to  constitute  wilful  injury,  act 
must  have  been  intentional  or  must  have  been  done  under  such  circumstances 
as  evinced  reckless  disregard  for  other's  safety  and  willingness  to  inflict  the 
injury;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Lacy,  78  Kan.  629,  97  Pac.  1025,  holding 
recklessness  amounting  to  utter  disregard  of  consequences  is  held  to  supply  the 
place  of  specific  intent. 

Distinguished  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Miller,  149  Ind.  500,  49  N. 
E.  445,  holding  failure  of  engineer  to  give  warning  at  crossing,  although  vehicle 
seen  approaching  wThen  train  1,200  feet  away,  not  evidence  of  wilful  injury. 
Neslig-ence  toward  neg-li&eiit  or  \vronjjfdoing  person. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Ferrell,  39  Ind.  App.  541,  78 
N.  E. .988  (dissenting  opinion),  on  contributory  negligence  as  defense  to  wilful 
injury. 

6  L.  R.  A.  246,  HUNTER  v.  NEW  YORK,  O.  &  W.  R.  CO.  116  N.  Y.  615,  23  N. 

E.  9. 
Judicial   notice. 

Cited  in  Gurley  v.  Missouri  P.  R.  Co.  J04  Mo.  233,  16  S.  W.  11,  judicially  notic- 


1045  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  240 

ing  that  injury  to  leg  8  or  9  inches  below  thigh  could  not  have  been  received 
while  walking  between  two  ordinary  freight  cars;  Campbell  v.  Wood.  116  Mo.  202, 
22  S.  W.  796,  taking  judicial  notice  of  meaning  of  surveyor's  marks,  made  under 
surveyor  general's  orders  on  government  plats;  Rogers  v.  Cady,  104  Cal.  290,  43 
Am.  St.  Rep.  100,  38  Pac.  81,  holding  county  within  which  lands,  described  by 
section,  township,  and  range,  are  located,  matter  of  judicial  notice;  Parks  v. 
Jacob  Bold  Packing  Co.  6  Misc.  574,  27  N.  Y.  Supp.  289,  taking  judicial  notice  that 
geographical  location  of  Kansas  City  and  Wichita  outside  state  of  Xew  York; 
Hanson  v.  Heard,  69  N.  H.  191,  38  Atl.  788,  taking  judicial  notice  that  cashier  has 
prima  facie  authority  to  make  collections  and  receive  deposits;  Burke  v.  Terri- 
tory, 2  Okla.  512,  37  Pac.  829,  holding  that  court  may  take  judicial  notice  of  its 
own  proceedings  in  contempt  proceeding  for  improper  publication  of  same;  Mon- 
tenes  v.  Metropolitan  Street  R.  Co.  77  App.  Div.  495,  78  N.  Y.  Supp.  1059,  and 
Lendle  v.  Robinson,  53  App.  Div.  146,  65  X.  Y.  Supp.  894,  taking  judicial  notice, 
with  help  of  almanac  to  refresh  memory,  as  to  time  of  sunset  on  date  of  accident ; 
Cohn  v.  Kahn.  14  Misc.  257,  35  N.  Y.  Supp.  829,  taking  judicial  notice  of  particu- 
lar day  of  week  on  which  date  given  in  evidence  falls;  Walton  v.  Stafford,  14 
App.  Div.  314,  43  X.  Y.  Supp.  1049,  appellate  court  not  bound  judicially  to  notice 
that  first  day  of  month  fell  on  Sunday,  where  fact  not  called  to  attention  of  trial 
court;  Hoagland  v.  Canfield,  160  Fed.  160,  holding  courts  and  juries  take 
judicial  notice  of  the  fact  that  the  height  of  men  is  not  eight  feet;  St.  Louis 
v.  Xiehaus.  236  Mo.  16,  139  S.  W.  450,  to  the  point  that  courts  are  not  bound 
to  take  judicial  notice  of  matters  of  fact;  Topham  v.  Interurban  Street  R.  Co. 
96  App.  Div.  329,  89  N.  Y.  Supp.  298,  holding  the  courts  may  take  judicial 
notice  of  fact  that  a  railroad  can  only  be  operated  upon  a  system,  the  product 
of  rules  and  regulations:  Montenes  v.  Metropolitan  Street  R.  Co.  77  App.  Div. 
495,  78  N.  Y.  Supp.  1059.  holding  the  court  may  take  judicial  notice  of  the 
time  of  the  rising  and  setting  of  the  sun  on  any  given  day;  Re  Viemeister,  179 
N.  Y.  240.  70  L.R.A.  798,  103  Am.  St.  Rep.  859,  72  N.  E.  97,  1  A.  ft  E.  Ann. 
Cas.  334,  holding  a  common  belief  may  be  acted  upon  without  proof  by  the 
legislature  and  the  courts;  Robinson  v.  Insurance  Co.  198  N.  Y.  525,  91  N.  E. 
373.  on  judicial  notice  of  location  of  places;  Peterson  v.  Standard  Oil  Co.  55 
Or.  517,  106  Pac.  337,  Ann.  Cas.  1912A,  625,  holding  that  court  will  take  judicial 
notice  of  dangerous  character  of  kerosene  oil. 

Cited  in  note  (124  Am.  St.  Rep.  22,  44)  on  facts  of  which  courts  will  take 
judicial  notice. 

Distinguished  in  North  Hempstead  v.  Gregory,  53  App.  Div.  354,  65  X.  Y. 
Supp.  867,  refusing  to  take  judicial  notice  of  character  of  construction  necessary 
in  pier  to  withstand  ice,  or  of  extent  of  burden  imposed  upon  soil  by  pier  on  piles 
as  compared  with  that  of  solid  pier,  or  of  custom  of  vessels  to  lie  aground  at  low 
water  in  exercise  of  right  incident  to  navigation. 
Proof  of  cause  of  accident. 

Cited  in  Deschenes  v.  Concord  &  M.  R.  Co.  69  X.  H.  290,  46  Atl.  467,  rendering 
judgment  for  defendant  where  evidence  failed  to  show,  except  inferentially,  that 
brakeman  was  killed  by  bridge  by  reason  of  defective  guard;  Fitzgerald  v.  New 
York  C.  &  H.  R.  R.  Co.  154  X.  Y.  266,  48  X.  E.  514,  denying  right  to  recover 
where  evidence  showed  brakeman's  death  after  passing  under  bridge  from  4%  to 
6*4  feet  above  top  of  car,  but  no  proof  of  contact  with  bridge;  Safford  v.  Green 
Island,  74  Hun,  307.  26  X.  Y.  Supp.  669,  denying  right  to  recover  for  injury  from 
fall  on  icy  pavement  in  absence  of  evidence  that  accident  would  not  have  occurred 
in  absence  of  ridges:  McCarty  v.  Lockport,  13  App.  Div.  500,  43  X.  Y.  Supp.  693, 
holding  jury  not  justified  in  finding  slope  of  sidewalk,  and  not  slipperiness  of 
snow,  proximate  cause  of  fall. 


6  L.R.A.  246]  L.  R.  A.  CASES  AS  AUTHORITIES.  1046 

Distinguished  in  Cash  v.  New  York  C.  &  H.  R.  R.  Co.  56  App.  Div.  476,  67  X. 
Y.   Supp.  823,  holding  proof  of  accident  not  rebutted  by  proof  of  physical  im- 
possibility of  occurrence  in  manner  stated  by  plaintiff's  witness. 
Duty  toward   employees. 

Cited  in  Cincinnati,  N.  0.  &  L.  P.  R.  Co.  v.  Jones,  —  L.R.A.  (X.S.)  — ,  113 
C.  C.  A.  55,  192  Fed.  772,  holding  that  railroad  was  liable  for  injury  caused 
brakeman  through  being  struck  by  tunnel  roof  which  was  lower  in  central  portion 
than  at  entrance,  and  of  which  fact  he  had  no  warning. 

Cited  in  footnote  to  Sweet  v.  Ohio  Coal  Co.  9  L.  R.  A.  861,  which  holds  master 
may  conduct  business  in  his  own  way,  though  other  method  less  hazardous. 
Contributory    negligence    of  -employee. 

Cited  in  Mexican  C.  R.  Co.  v.  Eckman,  42  C.  C.  A.  350,  102  Fed.  279,  holding 
contributory  negligence  of  conductor  sitting  on  roof  of  car  going  through  tunnel 
sufficiently  high  at  entrance,  for  jury. 
Assumption   of   risk. 

Cited  in  footnotes  to  Williamson  v.  Newport  News  A  M.  Valley  R.  Co.  12  L. 
R.  A.  297,  which  holds  brakeman  assumes  risk  of  bridge  known  to  be  too  low; 
Mensch  v.  Pennsylvania  R.  Co.  17  L.  R.  A.  450,  which  holds  danger  from  projec- 
tion of  bolt  from  end  of  car  assumed  by  brakeman;  McKee  v.  Chicago,  R.  I.  &  P. 
R.  Co.  13  L.  R,  A.  817,  which  .holds  risk  from  wing  fence  at  cattle-guard  assumed 
by  brakeman;  Stager  v.  Troy  Laundry  Co.  53  L.  R.  A.  459,  which  holds  risk  of 
hand  passing  under  guard  rails  into  rollers  not  assumed,  as  matter  of  law,  by 
servant  operating  mangle  in  laundry. 
Credibility  of  witness. 

Cited  in  Williams  v.  Delaware,  L.  &  W.  R.  Co.  155  N.  Y.  162,  49  N.  E.  672,  hold- 
ing jury  sole  judge  thereof,  under  provisions  of  Code;  Sheppard  v.  Wichita  Ice 
&  Cold  Storage  Co.  82  Kan.  513,  28  L.R.A. (N.S.)  650,  108  Pac.  819,  holding 
the  verdict  will  not  be  disturbed  on  ground  that  it  is  contradicted  by  the  laws 
of  nature  in  a  case  where  some  evidence  tends  to  support  it,  unless  the  physical 
facts  show  beyond  a  reasonable  doubt  the  falsity  of  the  evidence. 

Distinguished  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Walker,  38  Tex.  Civ.  App. 
80,  85  S.  W.  28,  holding  it  the  duty  to  set  aside  verdict  based  upon  evidence 
of  plaintiff  alone  where  it  is  covered  with  the  gravest  suspicion  and  its  incon- 
sistencies shock  the  conscience. 

6  L.  R.  A.  249,  HOPEWELL  MILLS  v.  TAUNTOX  SAV.  BANK,  150  Mass.  519, 

15  Am.  St.  Rep.  235,  23  N.  E.  327. 
Effect  on  fixtures  of  conveyance  or  mortgage  of  realty. 

Cited  in  Wentworth  v.  S.  A.  Woods  Mach.  Co.  163  Mass.  33,  39  N.  E.  414, 
holding  that  machines  so  affixed  to  freehold  as  to  make  them  part  of  realty,  pass 
to  purchaser  though  title  retained  till  paid  for;  Ryder  v.  Faxon,  171  Mass.  208. 
68  Am.  St.  Rep.  417,  50  N.  E.  631,  holding  finding  of  agreement  that  building  put 
on  leased  property  should  be  property  of  lessee,  justified;  Cosgrove  v.  Troescher. 
62  App.  Div.  126,  70  N.  Y.  Supp.  764,  holding  that  character  of  gas  logs,  refrig- 
erators, etc.,  as  fixtures,  depends  upon  intention  of  owner;  Cunningham  v.  Cure- 
ton,  96  Ga.  494,  23  S.  E.  420,  holding  mill  fixtures  passed  with  mortgage  of  mill 
notwithstanding  agreement  that  title  in  them  should  not  pass  to  purchaser  until 
note  paid;  Gunderson  v.  Svvarthout,  104  Wis.  101,  76  Am.  St.  Rep.  860,  80  X.  W. 
465,  holding  dynamo  and  machinery  connected  with  it,  fixtures  passing  under 
foreclosure  sale  of  realty;  Xational  Bank  v.  North,  160  Pa.  308,  28  Atl.  694,  hold- 
ing steam  radiators  and  valves  for  heating  not  fixtures  passing  with  mortgage  of 
building;  Fisk  v.  People's  Nat.  Bank,  14  Colo.  App.  27,  59  Pac.  63,  holding  pur- 


3047  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  249 

chaser  at  foreclosure  sale  of  trust  property  entitled  to  brickmaking  machinery  as 
fixtures,  put  on  premises  after  execution  of  deed  of  trust;  Fifield  v.  Farmer^  Nat. 
Bank,  47  111.  App.  123,  holding  machinery  attached  to  building  by  owner,  under 
secret  agreement  with  owner  of  machinery  to  retain  title,  passed  under  trust  deed 
of  land;  Baker  v.  McClurg,  198  111.  34,  59  L.  R.  A.  134,  92  Am.  St.  Rep.  261,  64 
X.  E.  701,  Affirming  96  111.  App.  173,  holding  that  removable  trade  fixtures  may 
include  ovens,  engines,  and  other  bakery  fixtures;  Thomson  v.  Smith,  111  Iowa, 
723,  50  L.  R.  A.  782,  82  Am.  St.  Rep.  541,  83  X.  W.  789,  holding  weighing  scales 
to  be  fixtures,  though  extending  a  few  inches  on  neighboring  lot,  passing  under 
sheriff's  deed;  Re  Goldville  Mfg.  Co.  118  Fed.  898,  holding  mill  machinery  to  be 
fixtures  passing  under  mortgage  of  mill;  Ice,  Light  &  Water  Co.  v.  Lone  Star 
Engine  &  Boiler  Works,  15  Tex.  Civ.  App.  697,  41  S.  W.  835,  holding  that  steam 
boiler  attached  to  realty  as  fixture  passes  to  purchaser  of  realty  free  from  lien  of 
chattel  mortgage;  Pfluger  v.  Carmichael,  45  App.  Div.  154,  66  X.  Y.  Supp.  417, 
holding  stepping-stone  on  sidewalk  and  vases  in  garden,  which  have  been  often 
removed,  not  pass  on  foreclosure  of  realty  as  improvements;  William  Firth  Co.  v. 
South  Carolina  Loan  &  T.  Co.  122  Fed.  579,  holding  mortgage  of  mill  and  machin- 
ery valid  as  to  machinery  though  not  recorded  as  chattel  mortgage;  Lazear  v. 
Ohio  Valley  Steel  Foundry  Co.  65  W.  Va.  115,  63  S.  E.  772,  holding  liens  re- 
served by  vendors  of  personal  property  attached  to  realty  will  be  protected 
only  when  it  can  be  done  without  injury  to  existing  rights  of  the  parties 
affected  by  the  lien:  Tippett  v.  Barham,  37  L.R.A.  (KS.)  132,  103  C.  C.  A.  430, 
180  Fed.  81,  holding  a  standpipe  erected  as  part  of  a  water  system  upon  prop- 
erty acquired  after  giving  a  mortgage  upon  plant  became  subject  to  the  mortgage, 
notwithstanding  reservation  of  lien  by  contractor;  Great  Western  Mfg.  Co.  v. 
Bathgate,  15  Okla.  99,  79  Pac.  903,  holding  chattels  attached  to  a  grist  mill  and 
adopted  to  its  running,  after  execution  of  a  mortgage  upon  property  becomes 
subject  to  the  mortgage;  Wetherill  v.  Gallagher,  211  Pa.  311,  107  Am.  St.  Rep. 
575,  60  Atl.  905,  holding  as  between  the  innocent  purchaser  without  notice  and 
lessor  of  boilers  erected  and  used  as  part  of  paper  plant,  the  boilers  became 
fixtures  and  passed  with  sale  of  land;  Equitable  Guarantee  &  T.  Co.  v.  Knowles, 
8  Del.  Ch.  130,  67  Atl.  961,  holding  while  the  character  of  a  chattel  may  be 
fixed  by  contract  as  between  the  contracting  parties  the  contract  cannot  affect 
the  rights  of  a  mortgage  or  innocent  purchaser  without  notice. 

Cited  in  footnotes  to  Anderson  v.  Creamery  Package  Mfg.  Co.  56  L.  R.  A.  554r 
which  holds  mortgage  to  seller  of  machinery  purchased  for  use  in  permanent 
building  superior  to  existing  real  estate  mortgage ;  Xeufelder  v.  Third  Street  & 
Suburban  R.  Co.  53  L.  R.  A.  601,  which  holds  machinery  steadied  by  bolts  and 
screws  fastening  it  to  building  not  fixture  as  to  mortgagee. 
How  fixtnrea  determined. 

Cited  in  Morey  v.  Hoyt,  62  Conn.  559,  19  L.  R.  A.  618,  26  Atl.  127,  holding  in- 
tention of  tenant  as  to  whether  machinery  intended  to  be  fixture  of  great  impor- 
tance; Baker  v.  McClurg,  198  111.  36,  59  L.  R.  A.  134,  92  Am.  St.  Rep.  261,  64  N. 
E.  701,  Affirming  96  111.  App.  173,  holding  intention  as  evidenced  by  acts  and 
circumstances  controlling  as  to  permanency  of  trade  fixtures;  Filley  v.  Chris- 
topher, 39  Wash.  26,  109  Am.  St.  Rep.  853,  80  Pac.  834,  holding  a  furnace  and 
boiler  together  with  the  radiators  and  .pipes  connected  therewith  constitute  a 
part  of  the  realty:  Pflueger  v.  Lewis  Foundry  &  Mach.  Co.  67  C.  C.  A.  102,  134 
Fed.  31.  holding  a  "squeezer"  and  steam  pump  used  in  a  steel  mill,  and  weighing 
37.500  pounds  and  bolted  to  a  brick  base  formed  a  part  of  the  mill:  White  v. 
Cincinnati,  R.  &  M.  R.  Co.  34  Ind.  App.  295,  71  N.  E.  276,  holding  machinery 
permanent  in  its  character  and  essential  to  the  purpose  for  which  the  building 
is  used  is  a  fixture;  Hook  v.  Bolton,  199  Mass.  246,  17  L.R.A. (X.S.)  701,  127 


C  L.R.A.  249]  L.  E.  A.  CASES  AS  AUTHORITIES.  1048 

Am.  St.  Rep.  487,  85  N.  E.  175,  holding,  generally,  the  question  whether  an 
article  attached  to  a  building  belongs  to  the  real  estate  is  a  mixed  question 
of  law  and  fact;  American  Radiator  Co.  v.  Pendleton,  62  Wash.  58.  112  Pac. 
1117,  holding  that  boiler  and  radiators  attached  to  hot  water  heating  system 
are  fixtures  and  subject  to  mechanic's  lien  as  part  of  building. 

Cited  in  footnotes  to  Leonard  v.  Clough,  16  L.R.A.  306,  which  holds  barn 
placed  by  owner  on  own  land,  on  stones  resting  on  surface,  a  fixture;  Murray 
v.  Bender,  63  L.R.A.  783,  which  holds  chairs,  stage  fixtures,  and  drop  curtains 
annexed  to  theater  to  make  possible  the  use  of  the  building,  fixtures;  Giddings 
v.  Freedley,  65  L.R.A.  327,  which  holds  main  belt  transmitting  power  from  an 
engine  so  annexed  to  building  as  to  be  real  estate,  to  machinery  in  mill,  real 
estate. 

Cited  in  notes    (10  L.R.A.  722,   723)    on  what  are  fixtures;    (69  L.R.A.  894) 
on  things  placed  on  land  with  intention  of  annexing  but  never  actually  attached, 
as   fixtures;     (84   Am.   St.   Rep.    879)    on   fixtures    retaining   by    agreement   the 
character  of  personal  property. 
Removable    fixtures. 

Cited  in  Sosman  v.  Conlon,  57  Mo.  App.  31,  holding  question  whether  mechan- 
ic's lien  can  be  filed  against  theater  for  stage  fittings  and  scenery  dependent  on 
whether  furnished  with  intention  of  forming  part  of  building;  Scannell  v.  Hub 
Brewing  Co.  178  Mass.  294,  59  N.  E.  628,  holding  mechanic's  lien  for  labor  and  ma- 
terials can  be  established  for  making  and  fitting  appliances  for  brewery;  Hille- 
brand  v.  Nelson,  1  Herdman  (Neb.)  788.  95  N.  W.  1068,  holding  portable  articles 
used  in  brick  manufactory  not  fixtures;  Readfield  Teleph.  &  Teleg.  Co.  v.  Cyr,  95 
Me.  289,  49  Atl.  1047,  holding  that  poles,  wires,  etc.,  retain  character  as  chat- 
tels as  between  debtor  and  creditor;  McCrillis  v.  Cole,  25  R.  I.  161,  105  Am. 
St.  Rep.  875,  55  Atl.  196,  holding  fact  that  property  attached  to  realty  for 
purpose  of  being  permanently  used  in  connection  therewith,  can  be  removed 
without  physical  injury  to  the  freehold  does  not  change  its  character  as  a 
fixture;  Security  Trust  Co.  v.  Temple  Co.  67  N.  J.  Eq.  520,  58  Atl.  514,  holding 
scenery  manufactured  and  supplied  for  use  in  a  theater,  to  be  used  in  connec- 
tion with  such  parts  of  stage  fittings  as  were  permanently  attached  is  construct- 
ively attached  to  the  freehold. 

Cited  in  note  (9  L.  R.  A.  700)   on  tenant's  right  to  remove  fixtures. 
Materiality    of    Intent. 

Cited  in  Pioso  v.  Bitzer,  20  Lane.  L.  Rev.  157,  holding  evidence  of  signer's  un- 
disclosed intent  in  executing  instrument  inadmissible;  Liquid  Carbonic  Co.  v. 
Wallace,  219  Pa.  460,  26  L.R.A.(N.S.)  330,  68  Atl.  1021,  holding  the  mutual 
intent  of  the  parties  as  gathered  from  their  acts  and  the  circumstances,  as  well 
as  from  their  words,  controls  in  tjuestion  of  permanency  of  a  road;  Smith  v. 
Bay  State  Sav.  Bank,  202  Mass.  485,  88  N.  E.  1086,  holding  intention  of  the 
owner  as  to  character  of  propertv  annexed  to  a  building  is  not  his  secret  inten- 
tion but  his  intention  as  manifested  by  his  acts. 

G  L.  R.  A.  252,  HARLAND  v.  UNITED  LINES  TELEG.  CO.  40  Fed.  308. 
Federal    jurisdiction    by    attachment. 

Cited  in  Central  Trust  Co.  v.  Chattanooga,  R.  &  C.  R.  Co.  68  Fed.  696,  holding 
jurisdiction  over  nonresidents  not  served  with  process  not  conferred  by  U.  S.  Rev. 
Stat.  §  915,  U.  S.  Comp.  Stat.  1901,  p.  684,  giving  plaintiffs  in  Federal  courts 
same  remedy  by  attachment  or  other  process  against  property  as  provided  by 
state  statute;  Wells  v.  Clark,  136  Fed.  464,  holding  the  United  States  statutes 
requiring  conformity  to  the  state  practice,  applies  only  to  matters  of  practice 
and  procedure,  and  not  to  jurisdiction;  United  States  v.  Brooke,  184  Fed.  342, 


1049  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  257 

holding  that  action  cannot  be  maintained  by  United  States  against  nonresident 
in  federal  court  by  attaching  defendant's  property  within  jurisdiction  without 
personal  service  of  summons. 

6  L.  R.  A.  254,  KIEL  v.  JACKSON,  13  Colo.  378,  16  Am.  St.  Rep.  207,  22  Pac. 

504. 
Abntter's    riijlit    to    dama&es    for   Improper   use   of   street. 

Cited  in  Pueblo  v.  Strait,  20  Colo.  18,  24  L.  R.  A.  394,  46  Am.  St.  Rep.  273,  36 
Pac.  789,  holding  construction  of  viaduct  over  railroad  unreasonable  change  in 
street  entitling  abutter  to  damages;  Gushing- Wetmore  Co.  v.  Gray,  152  Cal.  123, 
125  Am.  St.  Rep.  47,  92  Pac.  70,  holding  an  abutting  lot  owner  entitled  to 
damages  for  obstructions  to  ingress  and  egress  to  quarries  on  his  lot  though 
such  obstructions  are  not  immediately  in  front  of  his  property. 

Cited  in  notes  (9  L.  R.  A.  100)  on  use  of  streets  in  municipalities;  (18  L.  R.  A. 
155)  on  liability  of  railroad  company  for  obstructing  highway  crossing;  (9 
L.R.A.  (N.S.)  496)  on  right  of  landowner  to  damages  for  obstruction  of  street 
or  highway  by  railroad  not  adjacent  to  property;  (36  L.R.A. (N.S.)  677,  765) 
on  abutter's  right  to  compensation  for  railroads  in  streets. 

Distinguished  in  Union  P.  R.  Co.  v.  Foley,  19  Colo.  282,  35  Pac.  542,  and  Gilbert 
v.  Greeley,  S.  L.  &  P.  R.  Co.  13  Colo.  509,  22  Pac.  814,  holding  that  owner  of 
property  abutting  on  street  obstructed  by  railroad  cannot  recover  for  inconven- 
ience common  to  public;  Fogg  v.  Nevada-California-Oregon  R.  Co.  20  Nev.  438, 
23  Pac.  840,  holding  that  abutting  owners  suffering  no  inconvenience  not  common 
to  public  cannot  enjoin  operation  of  railroad  in  street. 
"What  constitutes  nuisance. 

Cited  in  footnote  to  Chicago  G.  W.  R,  Co.  v.  First  M.  E.  Church,  50  L.  R,  A. 
488,  which  holds  water  tank  in  street,  and  station  at  which  bells  constantly  rung 
and  whistles  blown,  within  few  rods  of  church,  a  nuisance. 
Aleasnre    of    damages    for    nuisance. 

Cited  in  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v^King,  23  Ind.  App.  577,  55  N.  E.  875, 
holding  as   measure   of   damages   for   abatable   nuisance,   depreciation   in   rental 
value;   Hollenbeck  v.  Marion,   116  Iowa,  79,  89  X.  W.  210,  holding  measure  of 
damages  for  pollution  of  stream  through  pasture  is  depreciation  in  rental  value. 
Nature  of  privilege  to  constitute  a  franchise. 

Cited  in  Sayre  Newton  Lumber  Co.  v.  Union  P.  R,  Co.  87  C.  C.  A.  619,  158 
Fed.  15,  holding  a  privilege  granted  by  a  city  to  an  ordinary  railroad  to  lay 
and  operate  its  railroad  across  or  along  the  streets  is  never  termed  a  franchise. 
Injunction  against  nuisance. 

Cited  in  note  (28  Am.  St.  Rep.  198)  on  injunction  against  nuisance  as  request 
of  private  person. 

6  L.  R.  A.  257,  ROSENBLATT  v.  PERKINS,  18  Or.  156,  22  Pac.  598. 
Leases;    statute    of    frauds. 

Cited  in  Jenning  v.  Miller,  48  Or.  203,  85  Pac.  517,  holding  an  oral  contract 
for  the  leasing  of  real  property  void  under  the  statute  of  frauds;  Dechenbach 
v.  Rima,  45  Or.  504,  77  Pac.  391,  holding  a  parol  lease  of  real  estate  from  July 
1,  1903  to  Jan.  1,  1906  is  void  under  the  statute  of  frauds;  Merchants'  State 
Bank  v.  Ruettell,  12  N.  D.  525,  97  N.  W.  853,  holding  oral  contract  is  not 
enforceable  unless  its  invalidity  is  waived  by  acting  upon  it  and  executing  it. 

Cited  in  notes  (7  L.R.A.  671)  on  validity  of  leases  under  statute  of  frauds; 
(16  Am.  St.  Rep.  764;  17  Am.  St.  Rep.  752)  on  effect  of  parol  lease  for  more 
than  a  year. 


6  L.R.A.  257]  L.  R.  A.  CASES  AS  AUTHORITIES.  1050 

Tenancy    from    year    to    year. 

Cited  in  Phelan  v.  Anderson,  118  Cal.  5C6,  50  Pac.  (>S5,  holding  lease  from  year 
to  year  where  rent  for  agricultural  land  paid  annually  and  accepted  as  annual 
rent;  Flack  v.  Barlow,  110  Md.  164,  72  Atl.  678,  17  A.  &  E.  Ann.  Cas.  538, 
holding  periodical  payments  of  a  yearly  rent,  either  in  one  or  more  instalments, 
accepted  by  the  landlord,  makes  Ihe  tenancy  one  from  year  to  year. 

Cited  in  notes    (8  L.R.A.  221)    on  how   tenancy   from  year  to  year   created: 
(15  Eng.  Rul.  Cas.  599)    on  person  entering  into  possession  under  lease  within 
statute  of  frauds  as  a  tenant  from  year  to  year. 
Effect    of    tenant    holding-    over. 

Cited  in  footnotes  to  Byxbee  v.  Blake,  57  L.  R.  A.  222,  which  holds  tenant  liable 
for  another  month's  rent,  by  keeping  keys  and  remaining  in  possession  five  days 
to  clean  up  rubbish;  Valentine  v.  Healey,  43  L.  R.  A.  667,  which  holds  lease  not 
renewed  by  temporary  retention  under  permit  by  tenant  in  common,  who  is  mem- 
ber of  lessee  firm. 

Cited    in   note    (120   Am.   St.   Rep.   42,   43)    on  effect   of   holding  over   after 
expiration  of  lease. 
Termination   of   tenancy. 

Cited  in  Watkins  v.  Balch,  41  Wash.  312,  3  L.R.A.(N.S.)  854,  83  Pac.  321, 
folding  an  oral  lease  for  a  term  of  years  may  be  terminated,  as  the  statute 
provides,  by  written  notice  given  at  the  prescribed  time  before  the  end  of  such 
period. 

Distinguished  in  Forsythe  v.  Pogue,  25  Or.  483,  36  Pac.  571,  holding  tenancy 
at  will  terminable  on  twenty  days'  notice  to  quit,  if  rent  payable  in  periods  of  less 
than  twenty  days. 
Appeal    from   judgments   inforcible   entry   or   detainer   cases. 

Cited  in  Wolfer  v.  Hurst,  47  Or.  160,  80  Pac.  419,  8  A.  &  E.  Ann.  Cas.  725, 
liolding  appeal  lies  from  a  judgment  of  a  justice  of  the  peace  in  a  forcible  entry 
or  detainer  case  under  the  statute. 

6  L.  R.  A.  259,  CHURCH  v.  PORTLAND,  18  Or.  73,  22  Pac.  528. 
Dedication    to    public    use. 

Cited  in  Conrad  v.  West  End  Hotel  &  Land  Co.  126  N.  C.  780,  36  S.  E.  282, 
holding  that  reference  in  deed  to  registered  plat  constitutes  irrevocable  dedication 
of  streets  and  public  grounds  marked  on  plat. 

Cited  in  footnotes  to  Hogue  v.  Albina,  10  L.  R.  A.  673,  which  holds  dedication 
not  presumed;  Campbell  v.  Kansas  City,  10  L.  R.  A.  593,  which  holds  donor  of 
land  for  graveyard  entitled  to  same  after  abandonment  by  public;  Sturmer  v. 
County  Court,  36  L.  R.  A.  300,  which  holds  public  square  dedicated  when  used 
for  more  than  eighty  years  as  such ;  Lake  Erie  &  W.  R.  Co.  v.  Whitham,  28  L.  R. 
A.  612,  which  denies  right  of  railroad  to  acquire  right  of  way  by  common-law 
•dedication. 

Cited  in  note    (31  L.R.A.  (N.S.)    1029)    on  dedication  of  land  in  which  third 
persons  have  interest. 
Protection   of  parks  from   forbidden   uses. 

Cited  in  Mclntyre  v.  El  Paso  County,  15  Colo.  App.  84,  61  Pac.  237,  holding  land 
dedicated  to  city  for  public  park  held  by  it  as  trustee  for  purposes  of  dedication, 
and  not  to  be  used  for  erection  of  courthouse:  Rowzee  v.  Pierce,  75  Miss.  858,  40 
L.  R.  A.  403,  65  Am.  St.  Rep.  625,  23  So.  307,  holding  erection  of  schoolhouse  on 
land  dedicated  for  "public  ornamental  park"  not  consistent  with  purposes  of  ded- 
ication; Douglass  v.  Montgomery,  118  Ala.  616,  43  L.  R.  A.  382,  24  So.  745  (dis- 
senting opinion),  majority  holding  that  adjacent  proprietor  may  enjoin  city  from 


1051  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  2G8 

diverting  park  from  purposes  of  dedication;  Wilkins  v.  Chicago,  St.  L.  &  X. 
O.  R.  Co.  110  Tenn.  450,  75  S.  W.  1026,  holding  property  dedicated  as  a  "public 
promenade"  cannot  be  contracted  away  by  the  municipal  authorities,  and  equity 
will  enforce  the  execution  of  such  a  trust. 

Cited  in  footnotes  to  Douglass  v.  Montgomery,  43  L.R.A.  376,  which  denies 
city's  power  to  grant  right  to  lay  railroad  across  public  park  and  then  abandon 
it  and  confirm  reversioner's  title;  Riverside  v.  Maclean,  66  L.R.A.  288,  which 
denies  right  to  devote  to  establishment  of  public  highway  portion  of  tract  of 
land  dedicated  for  public  park  where  result  will  be  to  cut  the  tract  into  small 
parcels  and  destroy  their  utility  for  the  original  purpose  intended. 

Cited  in  notes   (13  L.R.A.  252)   on  dedication  of  lands  for  public  parks;    (25 
L.R.A.  (X.S.)    983)    on   what   use   of   squares,    paries,   or   commons    is   consistent 
with  purpose  of  dedication. 
Protection     of     easement. 

Cited  in  Collins  v.  Asheville  Land  Co.  128  X.  C.  569,  83  Am.  St.  Rep.  720,  39 
S.  E.  21  (dissenting  opinion),  majority  holding  purchaser  of  lot  with  reference  to 
plat  entitled  to  have  kept  open  all  streets  represented. 

Cited  in  footnote  to  Ives  v.  Edison,  50  L.  R.  A.  134,  which  sustains  right  of 
owner  of  easement  to  injunction  to  compel  restoration  of  stairway. 

6  L.  R.  A.  266,  TRUE  v.  DAVIS,  133  111.  522,  22  N.  E.  410. 
Township    organization. 

Cited  in  People  ex  rel.  Deneen  v.  Martin,  178  111.  622,  53  N.  E.  309,  holding 
power  to  legislate  by  local  laws  upon  township  division  abrogated  by  Constitu- 
tion; Cicero  v.  Chicago,  182  111.  309,  55  N.  E.  351,  holding  that  legislature  may 
permit  division  of  town  by  vote  of  majority  of  inhabitants;  Cicero  Lumber  Co.  v. 
Cicero,  176  111.  25,  42  L.  R.  A.  703,  68  Am.  St.  Rep.  155,  51  N.  E.  758,  holding 
act  empowering  cities  to  set  aside  streets  for  pleasure  driveways  valid. 
Annexation  of  one  town  to  another. 

Cited  in  East  St.  Louis  v.  Rhein,  139  111.  118,  28  N.  E.  1089,  holding  annexation 
of  village  to  city  not  operate  to  annex  portion  of  town  in  which  it  lay. 

Cited  in  notes   (27  L.  R.  A.  745)   on  power  of  legislature  to  annex  territory  to 
municipality;   (11  L.  R,  A.  780)  on  power  to  extend  city  limits;   (23  L.  R.  A.  404) 
on  what  constitutes  "indebtedness"  within  meaning  of  constitutional  and  statu- 
tory restrictions  of  municipal  indebtedness,  when  municipalities  joined. 
Changre   of   boundaries  of  municipal   corporations. 

Cited  in  Chicago  v.  Cicero,  210  111.  294,  71  X.  E.  356,  holding  the  legisla- 
ture may  change  boundaries  of  a  sanitary  district  as  it  may  deem  best  to  pro- 
mote the  public  welfare;  State  ex  rel.  Pritchard  v.  Grefe,  139  Iowa,  28,  117  N. 
W.  13,  holding  the  general  assembly,  in  absence  of  constitutional  limitation, 
may  enlarge  or  diminish  the  powers  of  school  districts,  and  divide  or  consolidate 
two  or  more  districts  into  one. 

<3  L.  R.  A.  268,  LAKE  VIEW  v.  TATE,  130  111.  247,  22  N.  E.  791. 
Ordinance    limiting;    speed    of    trains. 

Cited  in  footnote  to  Chicago  &  A.  R.  Co.  v.  Carlinville,  60  L.  R.  A.  391,  which 
sn-tnins  ordinance  limiting  speed  of  interstate  trains  to  10  miles  an  hour  within 
city  limits. 

Cited  in  notes  (7  L.  R.  A.  318)  on  duty  of  railroad  to  slacken  speed;  (21  L.  R. 
A.  796)  on  constitutionality  of  statutes  restricting  contracts  and  business:  (17 
L.R.A.  (X.S.)  563)  on  power  of  municipality  to  regulate  speed  of,  and  signals 
from,  trains  at  crossings. 


6  L.R.A.  268)  L.  R.  A.  CASES  AS  AUTHORITIES.  1052. 

Municipal    ordinances;     discrimination. 

Cited  in  Cairo  v.  Feuchter,  159  111.  162,  42  X.  E.  308,  holding  license  ordinance- 
discriminating  between  wholesale  and  retail  liquor  dealers  void;  Hibbard  v.  Chi- 
cago, 59  111.  App.  473,  holding  ordinance  applying  to  one  place  and  person,  per- 
mitting erection  of  awning  in  street,  void;  People  ex  rel.  Ferris  Wheel  Co.  v. 
Swift,  60  111.  App.  398,  holding  ordinance  prohibiting  granting  license  in  certain 
district,  unless  upon  petition  of  majority  of  voters,  void;  Peoria  v.  Gugenheim,  61 
111.  App.  379,  holding  license  ordinance  discriminating  between  persons  of  same- 
class  invalid;  F.x  parte  Bohen,  115  Cal.  378,  36  L.  R.  A.  622,  47  Pac.  55,  holding 
ordinance  prohibiting  burials  in  cemetery  except  in  lots  already  purchased  for 
burial  purposes,  void. 

Cited  in  note  (123  Am.  St.  Rep.  52)  on  test  of  validity  of  municipal  ordinance 
as  denying  equal  protection  of  the  laws. 

Distinguished  in  Chicago  v.  Brownell,  146  111.  68,  34  N.  E.  595,  holding  ordi- 
nance prohibiting  pool-selling,  excepting  from  operation  certain  localities,  not  void: 
for  discrimination. 
Unreasonableness. 

Cited  in  Frost  v.  Chicago,  178  111.  253,  49  L.  R.  A.  658,  69  Am.  St.  Rep.  301, 
52  N.  E.  869,  holding  ordinance  prohibiting  dealers  from  covering  fruit  baskets 
with  colored  netting  void  for  unreasonableness;  Wice  v.  Chicago  &  N.  W.  R.  Co. 
193  111.  356,  56  L.  R.  A.  271,  61  N.  E.  1084,  holding  ordinance  forbidding  pas- 
sengers to  board  or  leave  moving  train  without  authority  void  for  unreason- 
ableness; Bush  v.  Peoria,  215  111.  517,  74  N.  E.  797,  holding  ordinances,  unrea- 
sonable, unjust  and  oppressive  will  be  declared  invalid;  Murphy  v.  Chicago,  R. 
I.  &  P.  R.  Co.  247  111.  618,  93  N.  E.  381;  Chicago  v.  Pittsburg,  C.  C.  &  St.  L. 
R.  Co.  244  111.  227,  135  Am.  St.  Rep.  316,  91  N.  E.  422,— holding  that  ordinance 
requiring  elevation  of  railroad  tracks  must  be  reasonable  or  it  will  be  invalid. 

Cited   in  note    (70  L.R.A.   853)    on   power  of  municipality  to   compel   change 
of  grade  of  railway  in  street. 
Reasonableness   question   for   conrt. 

Cited  in  Hawes  v.  Chicago,  158  111.  658,  30  L.  R.  A.  227,  42  N.  E.  373,  holding- 
reasonableness  of  ordinance  requiring  substitution  of  cement  for  plank-walk  ques- 
tion for  court,  in  light  of  circumstances;  McFarlane  v.  Chicago,  185  111.  252,  57 
N.  E.  12,  holding  reasonableness  of  ordinance  requiring  substitution  of  brick  for 
cedar  block  pavement  question  for  court;  Chicago  &  X.  W.  R.  Co.  v.  Elmhurst, 
165  111.  152,  46  N.  E.  437,  holding  reasonableness  of  special  taxation  ordinance 
question  for  court;  Evison  v.  Chicago,  St.  P.  M.  &  0.  R.  Co.  45  Minn.  375,  11  L. 
R.  A.  437,  48  N.  W.  6,  holding  reasonableness  of  ordinance  regulating  speed  of 
trains  question  for  court;  Chicago  G.  W.  R.  Co.  v.  Leaf  River,  135  111.  App. 
565,  holding  the  reasonableness  of  notice  is  a  question  for  the  court. 
—  Presumption  of  reasonableness. 

Cited  in  People  ex  rel.  Morrison  v.  Cregier,  138  111.  414,  28  N.  E.  812,  holding 
ordinance  prohibiting  sale  of  liquor  in  certain  districts  presumed  reasonable  until 
otherwise  shown;  Harris  v.  People,  218  111.  443,  75  N.  E.  1012;  Woolf  v.  Sulli- 
van, 224  111.  520,  79  N.  E.  646, — holding  while  municipal  ordinances  to  be  valid 
must  be  reasonable,  the  presumption  is  in  favor  of  their  validity. 

Distinguished  in  Myers  v.  Chicago,  196  111.  593,  63  X.  E.  1037,  holding  water- 
line  extension  ordinance  not  unreasonable  in  absence  of  proof  that  assessments  ex- 
ceed benefits. 
Corporate   by-laws   mnst    be   reasonable. 

Cited  in  Vierling  v.  Mechanics'  &  T.  Sav.  Loan  &  Bldg.  Asso.  179  111.  527,  53  N. 
E.  979,  holding  that  by-laws  of  loan  association  in  pursuance  of  charter  power  to- 


1053  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  270 

impose  fines  must  be  reasonable;  Chicago  &  A.  R,  Co.  v.  Carlinville,  200  111.  319, 
<50  L.  R.  A.  393,  93  Am.  St.  Rep.  190,  65  X.  E.  730,  Affirming,  103  111.  App.  255, 
holding  delegated  power  to  pass  ordinance  limiting  speed  of  trains  must  be  rea- 
sonably exercised. 

6  L.  R,  A.  270,  CULVER  v.  STREATOR,  130  111.  238,  22  N.  E.  810. 
Liability   of   cities   and    villages   for   torts   of   officials. 

Cited  in  Blake  v.  Pontiac,  49  111.  App.  550,  holding  city  not  liable  for  illegal 
incarceration  in  calaboose;  Kansas  City  v.  Lemen,  6  C.  C.  A.  631,  12  U.  S.  App. 
€40,  57  Fed.  908,  holding  city  not  liable  for  the  wrongful  closing  of  exhibition  by 
mayor  and  police;  Whitfield  v.  Paris,  84  Tex.  433,  15  L.  R.  A.  784,  31  Am.  St.  Rep. 
69,  19  S.  W.  566,  holding  city  not  liable  for  accidental  shooting  by  officer  enforc- 
ing ordinance  against  unmuzzled  dogs;  Givens  v.  Paris,  5  Tex.  Civ.  App.  708, 
24  S.  W.  974,  holding  city  not  liable  for  injuries  committed  by  cow  being  driven 
through  street  by  policeman  appointed  to  keep  cattle  out  of  streets;  Doty  v.  Port 
Jervis,  23  Misc.  315,  52  X.  Y.  Supp.  57,  holding  village  not  liable  for  homicide 
by  police  officer  appointed  by  president;  Stevens  v.  Muskegon,  111  Mich.  79,  36 
L.  R.  A.  780,  69  N.  W.  227,  holding  city  not  liable  for  enforcing  ordinances  inter- 
fering with  use  of  private  sewer  constructed  by  its  consent  in  street;  Chicago  v. 
\Yilliams,  182  111.  138,  55  X.  E.  123,  holding  city  not  liable  for  wrongful  arrest 
made  by  its  police  officers;  Gregg  v.  Hatcher,  94  Ark.  57,  27  L.R.A.  (X.S.)  140, 
125  S.  W.  1007,  21  Ann.  Gas.  982,  holding  that  municipality  is  not  liable  for 
acts  of  officers  in  wrongfully  impounding  animals  running  at  large;  Evans  v. 
Kankakee,  231  111.  227,  13  L.R,A.(X.S.)  1192,  83  N.  E.  223,  holding  city  is  not 
liable  for  the  acts  of  its  officers  in  attempting  to  enforce  police  regulations; 
Tollefson  v.  Ottawa,  228  111.  136,  11  L.R.A. (X.S.)  992,  81  X.  E.  823,  holding 
it  is  not  liable  for  the  negligent  acts  of  its  agents  or  servants  engaged  in 
executing  police  ordinances  and  regulations;  Evans  v.  Kankakee,  132  111.  App. 
491,  holding  in  governmental  matters  the  doctrine  of  respondeat  superior  does 
not  apply  to  municipalities,  except  in  their  corporate  affairs;  Hanrahan  v.  Chi- 
cago, 145  111.  App.  42,  holding  a  municipality  is  not  liable  for  failure  to  remove 
a  defective  awning  extending  over  part  of  street;  Clarke  v.  Chicago,  159  111. 
App.  24,  holding  that  city  is  not  liable  for  acts  of  mayor  and  chief  of  police 
in  attempting  to  enforce  police  power  of  city. 

Cited  in  footnotes  to  Snider  v.  St.  Paul,  18  L.  R.  A.  151,  which  holds  city  not 
liable  for  negligence  of  agents  in  providing  and  maintaining  city  hall ;  Potter  v. 
Jones,  12  L.  R.  A.  160,  which  holds  city  not  liable  for  negligence  in  blasting  for 
echoolhouse;  Curran  v.  Boston,  8  L.  R.  A.  243,  which  holds  city  not  liable  for 
negligence  of  workhouse  officers. 

Cited  in  notes  (9  L.  R.  A.  208,  210)  on  liability  of  municipalities  for  acts  or 
omissions  of  its  officers  or  agents;  (15  L.  R.  A.  783)  on  liability  of  municipality 
for  acts  of  policemen;  (44  L.  R.  A.  797)  on  liability  of  municipalities  for  false 
imprisonment  and  unlawful  arrest;  (1  L.R.A. (X.S. )  666)  on  distinction  between 
private  and  public  functions  of  municipality  with  respect  to  liability  for  dam- 
^ges;  (12  L.R.A.  (X.S. )  539)  on  municipal  liability  for  torts  of  police  officers. 

Distinguished  in  Chicago  v.  Selz,  S.  &  Co.  202  111.  550,  67  X.  E.  386,  holding  city 
liable  for  negligence  in  repairing  water  system  used  as  source  of  revenue  as  well 
as  for  fire  protection. 
Validity    of    ordinance. 

Cited  in  Chicago  &  A.  R.  Co.  v.  Carlinville,  200  111.  322,  60  L.  R.  A.  394,  93  Am. 
St.  Rep.  190,  65  X.  E.  730,  sustaining  ordinance  limiting  speed  of  train  through 
city  to  10  miles  an  hour. 


0  L.R.A.  270]  L.  E.  A.  CASES  AS  AUTHORITIES.  1U54 

Distinguished  in  Wice  v.  Chicago  &  X.  W.  R.  Co.  193  111.  353,  56  L.  R.  A.  269, 
61  N.  E.  1084,  Reversing  93  111.  App.  266,  holding  ordinarice  forbidding  getting  on 
or  off  moving  cars  not  within  police  power  delegated  to  city. 

6  L.  R.  A.  271,  ALSOP  v.  SOUTHERX  EXP.  CO.  104  N.  C.  278,  10  S.  E.  297. 
Refusal    by    carrier    to   accept    shipment. 

Cited  in  State  ex  rel.  Carter  v.  Wilmington  &  W.  R.  Co.  126  N.  C.  442,  36  S.  E. 
14,   holding  penalties   for   refusal   to   accept  cattle   for   shipment   recoverable  by 
any  one. 
Duty  of  carrier  to  accept  freight  for  transportation. 

Cited  in  Burlington  Lumber  Co.  v.  Southern  R.  Co.  152  X.  C.  73,  67  S.  E, 
167,  holding  the  duty  of  carrier  to  receive  freight  "whenever  tendered"  was  a 
common  law  duty;  Reid  v.  Southern  R.  Co.  153  N.  C.  492,  69  S.  E.  618,  to  the 
point  that  common  carrier  of  freight  was  required  at  common  law  to  receive 
freight  when  tendered. 

Cited  in  note  (61  Am.  St.  Rep.  362)  on  duty  of  express  company  to  receive 
goods  for  transportation. 

Disapproved  in   Platt  v.  Lecocq,   15  L.R.A.  (N.S.)    564,  85   C.   C.  A.   621,   158 
Fed.  729,  holding  an  express  company  may  rightfully  refuse  to  receive  packages 
of  specie  and  currency  from  a  bank  with  a  burglary  proof  vault  for  transporta- 
tion the  day  preceding  departure  of  only  train  it  can  be  carried  on. 
Sufficiency  of  tender. 

Cited   in  Garrison  v.  Southern  R.  Co.  150  N.  C.  579,  64  S.  E.  578,  holding 
the  freight  must  be  tendered  at  a  regular  depot  and  within  business  hours. 
Duty  of  delivery. 

Cited  in  United  States  Exp.  Co.  v.  State,  164  Ind.  203,  73  N.  E.  101,  holding 
it  the  duty  of  a  carrier  by  express  to  deliver  packages  received  by  it  to  the 
consignee  at  his  residence  or  place  of  business. 

Cited  in  note  (61  Am.  St.  Rep.  374,  375)  on  duty  of  express  company  as  to 
delivery  to  consignee. 

6  L.  R.  A.  278,  CAMPBELL  v.  ROTERING,  42  Minn.  115,  43  N.  W.  795. 
Liability  on   bond. 

Cited  in  Walsh  v.  Featherstone,  67  Minn.  105,  69  N.  W.  811,  holding  indemnity 
bond  not  agreement  for  benefit  of  third  party  in  whose  favor  liability  incurred; 
Wheeler  v.  Paterson,  64  Minn.  233,  66  N.  W.  964,  holding  replevin  bond  not  void 
because  name  of  one  surety  omitted  from  body,  where  it  is  apparent  on  its  face 
that  he  is  liable;  Wilcox  Lumber  Co.  v.  School  Dist.  No.  268,  103  Minn.  46,  114 
N.  W.  262,  on  the  analogy  between  a  contractor's  bond,  and  an  indemnity  con- 
tract against  the  collection  or  enforcement  of  negotiable  paper. 

Distinguished  in  Klein  v.  Funk,  82  Minn.  8,  84  X.  W.  460,  holding  rule  that 
surety  must  pay  debt  before  bringing  action  inapplicable  in  action  by  surety  on 
third  person's  note  given  as  collateral  security. 

6  L.  R.  A.  280,  COLLINS  v.  CHARTIERS  VALLEY  GAS  CO.  131  Pa.  143,  17  Am. 
St.  Rep.  791,  18  Atl.  1012. 

Judgment  upon  venire  de  novo  affirmed  in  139  Pa.  124,  27  W.  N.  C.  218,  21  Atl. 
147. 
Pollution   of  fresh   tvater. 

Cited  in  Collins  v.  Chartiers  Valley  Gas  Co.  139  Pa.  124,  27  W.  N.  C.  219,  21 
Atl.  147,  holding  one  drilling  for  gas  liable  for  injury  to  fresh  water  well  by  want 
of  reasonable  care  to  prevent  mingling  of  salt  water;  Pfeiffer  v.  Brown,  165  Pa. 


1055  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  280 

273,  35  W.  X.  C.  483,  44  Am.  St.  Rep.  660,  30  Atl.  844,  holding  one  who  pumps 
salt  water  so  that  it  flows  upon  another's  lands  liable  for  changing  fresh  to  salt 
water;  Long  v.  Louisville  &  X.  R.  Co.  128  Ky.  31,  13  L.R.A. (N.S.)  1064,  107 
S.  W.  203,  16  A.  &  E.  Ann.  Cas.  673,  holding  one  burying  the  body  of  a  dead 
animal  on  his  own  land  is  not  liable  for  pollution  of  waters  of  a  spring  unless 
it  appears  such  results  could  have  been  anticipated  by  one  of  ordinary  prudence. 

Cited  in  note  (34  L.R.A. (X.S.)  49)   on  underground  pollution  of  water. 
——  As    nuisance. 

Cited  in  Rarick  v.  Smith,  17  Pa.  Co.  Ct.  631,  5  Pa.  Dist.  R.  532,  holding  pollu- 
tion of  stream  by  manufacture  of  dynamite  from  ingredients  brought  from 
abroad,  nuisance  as  to  lower  owner. 

Cited  in  note  (8  L.  R.  A.  832)  as  to  private  right  of  action  for  nuisance. 
Rights   in   subterranean   waters   or  minerals. 

Cited  in  Stillwater  Water  Co.  v.  Farmer,  89  Minn.  67,  60  L.  R.  A.  879,  99  Am. 
St.  Rep.  541,  93  X.  W.  907,  denying  land  owner's  right  to  waste  percolating  wa- 
ters, injuring  another's  spring;  Tampa  Waterworks  Co.^v.  Cline,  37  Fla.  601,  33 
L.  R.  A.  382,  53  Am.  St.  Rep.  262,  20  So.  780,  holding  that  land  owner  may  open 
up  channel  of  subsurface  water  if  not  diverted  or  polluted;  Barclay  v.  Abraham, 
121  Iowa,  622,  64  L.  R.  A.  256,  96  N.  W.  1080,  holding  person  asserting  existence 
of  subterranean  stream  must  show  its  channel  reasonably  ascertainable ;  Katz  v. 
Walkinshaw,  141  Cal.  124,  64  L.  R.  A.  249,  99  Am.  St.  Rep.  766,  74  Pac.  766,  de- 
nying right  to  remove  percolating  water  through  artesian  well  for  irrigation  of 
distant  lands,  to  injury  of  neighbors;  Williamson  v.  Jones,  39  W.  Va.  257,  25  L. 
R.  A.  233,  19  S.  E.  436,  holding  removal  of  petroleum  in  place  is  disherison  of 
remainderman;  Western  Maryland  R.  Co.  v.  Martin,  110  Md.  565,  73  Atl.  267, 
holding  there  is  no  difference  in  principle  between  rights  incident  to  streams 
of  water  upon  the  surface  and  those  flowing  beneath  when  the  latter  move  in 
known  and  well-defined  channels;  Erickson  v.  Crookston  Waterworks,  Power  & 
Light  Co.  105  Minn.  197,  17  L.R.A.(X.S.)  659,  117  N.  W.  435,  holding  the  dis- 
tinction between  rights  in  surface  and  underground  waters,  is  not  founded  upon 
fact  of  location  above  or  below  ground,  but  on  the  fact  of  knowledge  with  refer- 
ence thereto;  Bair  v.  Palm,  16  Pa.  Dist.  R.  488,  holding  the  upper  owner  has 
no  right  for  mere  purpose  of  appropriation  to  divert  a  defined  subterranean 
stream  to  the  injury  of  a  lower  owner;  Excelsior  Refining  Co.  v.  Sun  Oil  Co. 
11  Del.  Co.  Rep.  305,  holding  that  no  right  of  action  arises  for  percolating 
waters,  unless  it  is  shown  that  they  have  caused  injuries  to  party's  property; 
Mohn  v.  Bollman,  26  Lane.  L.  Rev.  279,  holding  that  owner  cannot  acquire  by 
prescription  right  to  continuous  flow  through  neighbor's  land  of  undefined  sub- 
terranean stream. 

Cited  in  notes  (19  L.R.A.  96)  on  rights  in  subterranean  waters;  (67  Am. 
St.  Rep.  668)  on  what  are  percolating  waters;  (1  Eng.  Rul.  Cas.  762)  on  non- 
liability for  diminution  of  water  on  adjoining  land  by  pumping  from  well  on 
one's  own  land;  (2  Brit.  Rul.  Cas.  99.5)  on  character  of  water  flowing  under- 
ground in  defined  but  unknown  channel. 

Distinguished  in  O'Xeil  v.  Ben  Avon,  30  Pittsb.  L.  J.  N.  S.  249,  9  Pa.  Dist. 
R.  131,  holding  injury  to  percolating  spring  by  highway  improvement  not  sub- 
ject of  damages ;  Kelley  v.  Ohio  Oil  Co.  57  Ohio  St.  329,  39  L.  R.  A.  768,  63  Am. 
St.  Rep.  721,  49  X.  E.  399,  holding  that  owner  of  land  has  right  to  oil  taken  from 
wells  thereon. 
TTse  of  one's  own  property  negligrenee. 

Cited  in  Cleveland  Terminal  Valley  R.  Co.  v.  Marsh,  63  Ohio  St.  249,  52  L.  R. 
A.  147,  58  X.  E.  821,  denying  company's  liability  to  boy  employed  by  station  agent 


6  L.R.A.  280]  L.  R.  A.  CASES  AS  AUTHORITIES.  1056 

without  its  knowledge  to  attend  lamps,  and  injured  by  explosion  of  torpedo  on 
track;  Strauss  v.  Allentown,  215  Pa.  98,  63  Atl.  1073,  7  A.  &  E.  Ann.  Cas.  686, 
holding  where  the  use  of  one's  own  land  is  proper  and  the  damage  to  another 
unavoidable,  it  is  damnum  absque  injuria. 

Cited  in  note  (25  Eng.  Rul.  Cas.  83)   on  liability  for  wilfully  and  intentionally 
harming  another  in  exercise  of  a  legal  right. 
Water  rights  and  uses. 

Cited  in  Smithko  v.  Pittsburgh  &  W.  R.  Co.  5  Pa.  Dist.  R.  544,  27  Pittsb.  L.  J. 
N.  S.  18,  finding  taking  of  land  for  reservoir  of  surface  water  "necessary"  to  ope- 
ration of  railroad,  where  water  in  wells  unfit;  Davidson  v.  Shenandoah  Borough, 
38  Pa.  Co.  Ct.  700,  to  the  point  that  damages  suffered  by  diversion  of  water  from 
party's  land  may  be  recovered  in  action  at  law. 

6  L.  R.  A.  283,  HOLMES  v.  TURNERS  FALLS  LUMBER  CO.  150  Mass.  535,  23 

N.  E.  305. 
Reference;    when    permissible. 

Cited  in  Graham  v.  Lord,  170  Mass.  3,  48  N.  E.  845,  holding  that  mechanic's 
lien  proceeding  may  be  referred. 
Appointment   of  auditor;    practice   in.   equity. 

Cited  in  Falmouth  v.  Falmouth  Water  Co.  180  Mass.  328,  62  N.  E.  255,  holding 
auditor's  report  in  equity  suit  regarded  as  master's  report;  McArthur  Bros.  Co. 
v.  Com.  197  Mass.  141,  83  X.  E.  334,  holding  the  authority  of  courts  to  appoint 
auditors  is  largely  created  by  statute;  Wilson  v.  American  Circular  Loom  Co. 
109  C.  C.  A.  600,  187  Fed.  841,  holding  that  report  of  auditor  appointed  in 
action  at  law  is  admissible  in  trial  of  case  before  jury. 
Evidence ;  declarations  of  corporate  officer. 

Cited  in  Nash  v.  Minnesota  Title  Ins.  &  T.  Co.  159  Mass.  444,  34  N.  E.  625, 
holding  declarations  of  president  as  to  title  of  land  covered  by  trust  mortgage 
to  corporation  binding  upon  corporation. 
\<l  niixslliilit  y  of  declarations  as  to  ownership  of  land. 

Cited  in  Abbott  v.  Walker,  204  Mass.  73,  26  L.R.A.  (N.S.)  815,  90  N.  E.  405, 
holding  declarations  as  to  title  of  land  where  made  by  owner  while  upon  it 
are  admissible  against  her  and  against  those  claiming  under  her;  Goyette  v. 
Keenan,  196  Mass.  420,  82  N.  E.  427,  holding  evidence  properly  excluded  where 
it  does  not  appear  the  declarations  were  made  upon  the  land. 
Possession  adverse  to  mortgagee. 

Cited  in  Anthony  v.  Anthony,  161  Mass.  351,  37  N.  E.  386,  holding  occupancy  by 
mortgagor's  widow  under  lease  from  mortgagee  not  adverse;  Long  v.  Richards, 
170  Mass.  128,  64  Am.  St.  Rep.  281,  48  N.  E.  1083,  holding  possession  of  first 
mortgagee  under  mortgage  not  disseise  second;  Skinner  v.  Hale,  76  Conn.  228, 
56  Atl.  524,  holding  the  possession  is  never  adverse  until  the  mortgagor  either 
disclaims  holding  under  or  subject  to  mortgage  and  asserts  title  in  himself 
alone,  or  character  of  his  possession  is  such  as  to  give  notice  that  he  asserts 
title  in  himself  alone. 

Cited  in  note  (1  L.R.A.  (N.S.)  1037)  on  adverse  possession  by  mortgagor  or 
grantee  against  mortgagee. 

6  L.  R.  A.  290,  PORTLAND  LUMBERING  &  MFG.  CO.  v.  EAST  PORTLAND,  18 

Or.  21,  22  Pac.  536. 
Municipal    corporations;    power    to    make    contracts. 

Cited  in  Townsend  Gas  &  Electric  Co.  v.  Port  Townsend,  19  Wash.  409,  53  Pac. 
551,  holding  charter  provision  for  annual  tax  for  lighting  streets  does  not  restrict 


1057  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  301 

city's  power  to  contract  to  annual  periods;  Shipley  v.  Hacheney,  34  Or.  308,  55 
Pac.  971,  holding  city  may  contract  to  pay  interest  on  overdue  warrants  for  pay- 
ment of  debts. 

Cited  in  notes    (6  L.  R.  A.  318)    on  liability  of  municipal  corporation  on  its 
contracts;    (12  L.  R.  A.  168)   on  estoppel  of  corporation  to  deny  liability  on  its 
contracts. 
Ultra  vires. 

Cited  in  Portland  v.  Bituminous  Paving  &  Improv.  Co.  33  Or.  321,  44  L.  R.  A. 
533,  72  Am.  St.  Rep.  713,  52  Pac.  28,  holding  bond  to  secure  performance  of  ultra 
vires  contract  not  enforceable,  though  contract  fully  executed  by  city;  Clapp  v. 
Titu>.  138  Mich.  43,  100  N.  W.  1005,  holding  where  a  conflict  between  the  presi- 
dent of  a  village  and  council  occurred,  the  council  could,  temporarily  at  least, 
provide  for  the  care  of  the  village  property. 

Cited  in  footnote  to  Bath  Gaslight  Co.  v.  Claffy,  36  L.  R.  A.  664,  which  denies 
right  of  lessee  of  corporation  to  escape  payment  of  rent  on  ground  that  law  ultra 
•vires. 

Cited  in  note  (22  Am.  St.  Rep.  768)  on  ultra  vires  contract  of  municipality. 
Liability  where  authority   is   irregularly  exercised. 

Cited  in  Soule  v.  Seattle,  6  Wash.  317,  33  Pac.  384,  holding  city  failing  to  levy 
special  assessment  liable  for  street  improvements;  Portland  v.  Bituminous  Paving 
&  Improv.  Co.  33  Or.  317,  44  L.  R.  A.  531,  72  Am.  St.  Rep.  713,  62  Pac.  28,  holding 
illegality  of  paving  assessment  does  not  invalidate  contractor's  bond  to  city; 
Pine  Tree  Lumber  Co.  v.  Fargo,  12  X.  D.  377,  96  X.  W.  357,  holding  where  a 
city  diverts  funds  to  be  raised  by  special  assessment  to  satisfy  warrants  issued 
on  such  fund,  it  is  liable  in  damages  for  breach  of  its  contract. 

Cited  in  note  (32  L.R.A.  (X.S.)  168)  on  liability  of  municipality  failing  to 
.enforce  assessments  for  improvements. 

Criticized  in  German-American  Sav.  Bank  v.  Spokane,  17  Wash.  325,  38  L.  R. 
A.  262,  49  Pac.  542,  holding  delay  in  levying  special  tax  for  street  improvements 
will  not  render  city  liable. 

G  L.  R.  A.  301,  MOULTOX  v.  STATE,  88  Ala.  116,  6  So.  758. 

Followed  without  discussion  in  King  v.  State,  89  Ala.  149,  7  So.  750. 
Evidence;    proof   of   character   of   party   or   witness. 

Cited  in  Evans  v.  State,  109  Ala.  19,  19  So.  535;  Lowery  v.  State,  98  Ala.  49,  13 
So.  498;  Thompson  v.  State,  100  Ala.  71,  14  So.  878, — holding  character,  whether 
good  or  bad,  provable  only  by  evidence  of  general  reputation ;  Morgan  v.  State, 
88  Ala.  224,  6  So.  761,  holding  particular  acts  of  misconduct  by  defendant,  on 
trial  for  assault  with  intent  to  kill,  not  admissible;  Walker  v.  State,  91  Ala.  80, 
9  So.  87,  holding  that  good  character  of  defendant  on  trial  for  murder  cannot 
be  shown  by  proof  of  particular  acts;  Smith  v.  State.  88  Ala.  77,  7  So.  52,  holding 
inquiry  as  to  character  or  reputation  of  witness  must  not  extend  to  proof  of  par- 
ticular acts  within  knowledge  of  impeaching  witness:  Way  v.  State,  155  Ala. 
63,  46  So.  273,  holding  the  character  witness  cannot  testify  as  to  particular 
acts  and  conduct;  Sweatt  v.  State.  156  Ala.  88,  47  So.  194,  holding  immoral 
conduct  in  any  one  particular  cannot  be  shown  though  it  has  a  bearing  on 
question  of  general  character. 

Cited   in  note    (14   L.R.A. (X.S.)    692.   695,  696,   745)    on  evidence   of  specific 
instances  to  prove  character. 
Cross-examination   respecting:   character. 

Cited  in  Smith  v.  State,  103  Ala.  70,  15  So.  866,  and  Goodwin  v.  State,  102  Ala. 
•08,  15  So.  571,  holding  that  state  may  cross-examine  witnesses  as  to  having  heard 
L.R.A.  Au.  Vol.  L— 67. 


6  L.R.A.  301]  L.  R.  A.  CASES  AS  AUTHORITIES.  1058 

c.l  specific  acts  of  violence,  where  defendant's  character  in  issue;  Carson  v.  State, 
128  Ala.  60,  29  So.  608,  holding,  when  character  of  defendant  for  peace  and  quiet 
in  issue  in  murder  case,  state  may  cross-examine  witnesses  as  to  having  heard  of 
defendant  getting  drunk  and  carrying  concealed  weapons;  Hawes  v.  State,  88  Ala. 
71,  7  So.  302,  holding  evidence  that  witness  had  heard  of  difficulties  between  de- 
fendant and  wife,  for  murder  of  whom  he  was  on  trial,  admissible  on  cross-exam- 
ination; Jackson  v.  State,  106  Ala.  17,  17  So.  333,  holding  evidence  of  bad  repu- 
tation of  state's  witness  cannot  be  rebutted  by  testimony  as  to  opinion  of  his 
credibility,  based  upon  personal  dealings  with  him;  Garrett  v.  State,  97  A'a.  25. 
14  So.  327,  holding  state's  witness  in  murder  case  cannot  be  cross-examined  as  to 
act  of  deceased  in  chasing  man  with  hot  horseshoe;  Williams  v.  State.  144  Ala. 
18,  40  So.  405,  holding  where  witness  on  direct  examination  testifies  that  de- 
fendant's character  is  good,  he  may  on  cross-examination  be  asked  if  he  ever 
heard  of  a  certain  specific  act  involving  moral  turpitude;  Andrews  v.  State,  159 
Ala.  25,  48  So.  858.  holding  for  the  purpose  of  testing  the  credibility  or  accuracy 
of  the  character  of  witness,  he  may  be  asked,  on  cross-examination,  whether  or 
not  he  has  heard  of  particular  acts;  Wray  v.  State,  2  Ala.  App.  142,  57  So. 
144,  holding  that  cross-examination  of  prosecuting  witness  cannot  be  extended 
to  immaterial  matters. 

Cited  in  note  (20  L.  R.  A.  615)  on  cross-examination  of  witnesses. 

6  L.  R.  A.  303,  PEOPLE  ex  rel.  PLATT  v.  WEMPLE,  117  X.  Y.  136,  2  Inters. 

Com.  Rep.  735,  22  N.  E.  1046. 
Joint  stock  companies  and  partnership  associations  as  corporations. 

Cited  in  People  ex  rel.  Winchester  v.  Coleman,  133  N.  Y.  283,  16  L.  R.  A.  184, 
footnote  p.  183,  31  N.  E.  96,  Affirming  37  N.  Y.  S.  R.  120,  13  N.  Y.  Supp.  833, 
holding  joint  stock  company,  having  attributes  of  corporate  body,  not  within  stat- 
ute making  all  "stock  corporations"  deriving  income  from  capital  subject  to  tax 
upon  capital;  Andrews  Bros.  Co.  v.  Youngstown  Coke  Co.  30  C.  C.  A.  302,  58  U. 
S.  App.  444,  86  Fed.  594,  holding  "partnership  association"  organized  under  au- 
thority of  statute,  and  possessing  attributes  of  corporate  body,  corporation  within 
jurisdictional  requirements  as  to  diversity  of  citizenship  in  Federal  courts;  Ray- 
mond v.  Colton,  43  C.  C.  A.  508,  104  Fed.  22C,  and  Adams  Exp.  Co.  v.  State,  55 
Ohio  St.  78,  44  N.  E.  506,  holding  individual  liability  of  members  of  joint  stock 
company  does  not  destroy  character  as  corporation;  Snyder  v.  Lindsey,  92  Hun, 
433,36  X.  Y.  Supp.  1037,  holding,  where  contract  under  which  association  organized 
leaves  members  personally  liable  to  creditors,  it  is  not  corporation  requiring  ac- 
tion for  dissolution  to  be  brought  by  attorney  general;  Edgeworth  v.  Wood,  58  X. 
J.  L.  466,  33  Atl.  940,  holding  United  States  Express  Company  an  incorporated 
company  within  statute  permitting  corporations  to  be  sued  in  name  of  president 
or  treasurer;  Lane  v.  Albertson,  78  App.  Div.  616,  79  N.  Y.  Supp.  947,  holding 
transfer  of  stock  in  joint  stock  association  to  legatee  not  within  clause  in  articles 
giving  association  first  option  to  purchase  stock  sold  or  transferred:  Colton  v. 
Raymond,  41  Misc.  583,  85  X.  Y.  Supp.  210,  holding  rights  of  stockholder  in 
joint  stock  association  more  like  partnership  than  corporation  stockholder's 
rights;  Bishop  v.  Bishop,  81  Conn.  526,  71  Atl.  583,  holding  express  companies 
organized  as  joint-stock  associations  and  possessing  the  element  of  personal  lia- 
bility are  held  by  the  Xew  York  courts  to  almost  the  full  measure  of  corporate 
attributes;  Re  Hatt,  57  Misc.  323,  108  X.  Y.  Supp.  468,  holding  the  United 
States  Express  Company  was  formed  under  the  state  statutes,  whether  it  be 
termed  a  corporation,  a  joint-stock  company,  or  an  association;  Hibbs  v.  Brown. 
190  X.  Y.  178,  82  X.  E.  1108,  on  similarity  of  joint-stock  associations  to  cor- 
porations. 


1059  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  308 

Cited  in  footnotes  to  Rouse,  H.  &  Co.  v.  Donovan.  27  L.  R.  A.  577,  which  holds 
valid,  provision  for  execution  against  limited  partners  for  unpaid  subscriptions 
after  return  of  execution  against  partnership;  Edwards  v.  Warren  Linoline  &  Gas- 
oline Works,  38  L.  R.  A.  791,  which  holds  partnership  association  organized  under 
hnvs  of  Pennsylvania  regarded  as  partnership  instead  of  corporation  in  Massa- 
chusetts; State  ex  rel.  Railroad  &  Warehouse  Commission  v.  United  States  Exp. 
Co.  50  L.  R.  A.  667,  which  sustains  state's  right  to  require  information  as  to  busi- 
ness within  state,  of  unincorporated  express  company  of  another  state;  State  ex 
rel.  Railroad  &  W.  Commission  v.  Adams  Exp.  Co.  38  L.  R,  A.  225,  which  holds 
service  on  nonresident  joint  stock  association  properly  made  on  local  agent. 
Taxation  of  corporations  and  associations. 

Cited  in  Re  Jones,  172  N.  Y.  584,  60  L.  R.  A.  479,  footnote  p.  476,  65  N.  E.  570, 
which  holds  shares  in  joint  stock  company  owning  real  estate  only,  personalty  in 
applying  transfer  tax  law;  Re  Jones,  69  App.  L»iv.  246,  74  X.  Y.  Supp.  702  (dis- 
senting opinion),  majority  holding  beneficial  interest  01  heir  of  deceased  member 
of  joint  stock  association,  in  company's  real  estate  standing  in  name  of  president, 
is  real  estate  not  subject  to  transfer  tax. 

Cited  in  footnotes  to  Vermont  &  (J.  R.  Co.  v.  Vermont  C.  R.  Co.  10  L.  R.  A.  562, 
which  holds  railroad  lessor  liable  for  gross  earnings  tax;  San  Francisco  v.  West- 
ern U.  Teleg.  Co.  17  L.  R.  A.  301,  which  holds  state  tax  on  telegraph  franchise 
void;  State  Tide  Water  Pipe  Co.,  Prosecutor,  v.  State  Board,  27  L.  R.  A.  684, 
which  holds  limited  partnership  a  corporation  for  purpose  of  taxation. 

Cited  in  notes  (22  L.  R.  A.  478)  on  taxation  of  joint  stock  association;  (58  L. 
R.  A.  526)  on  taxation  of  capital  stock  of  unincorporated  associations;  (57  L.  R. 
A.  74,  80)  on  organizations  subject  to  franchise  taxes;  (58  L.  R,  A.  548)  ou 
taxation  of  intangible  property  of  corporations;  (60  L.  R.  A.  674)  on  corporate 
taxation  and  the  commerce  clause. 

Distinguished  in  Hoey  v.  Coleman,  46  Fed.  222,  holding  Adams  Express  Com- 
pany, although  quasi  corporation  as  between  its  members,  but  not  incorporated, 
not  within  statute  imposing  tax  on  "all  moneyed  or  stock  corporations"  deriving 
income  from  capital. 
Effect   of   purchase    by   joint    stock   company    of   its    own    stock. 

Cited  in  Booth  v.  Dodge,  60  App.  Div.  27  note,  69  N.  Y.  Supp.  673,  holding  joint 
stock  association  may  purchase  its  own  stock,  hold  it  unextinguished,  and  reissue  it. 

6  L.  R.  A.  308,  LAWRENCE  v.  IXGERSOLL,  88  Tenn.  52,  17  Am.  St.  Rep.  870, 

12  S.  W7.  422. 
Mandamus. 

Cited  in  Swindell  v.  State,  143  Ind.  157,  35  L.  R.  A.  52,  42  N.  E.  528,  holding 
that  validity  of  election  or  appointment  may  be  inquired  into  by  mandamus; 
Adcock  v.  Houk.  122  Tenn.  27(i.  122  S.  W.  979,  holding  that  officer  sought  to  be 
coerced  by  mandamus  to  recognize  another  as  an  officer  may  question  such  alleged 
officer's  right  to  office. 

Cited  in  footnotes  to  People  ex  rel.  Daley  v.  Rice,  14  L.  R.  A.  644,  which  author- 
izes mandamus  to  compel  canvassing  board  to  disregard  illegal  return;  Wampler 
v.  State,  38  L.  R.  A.  829,  which  authorizes  mandamus  to  compel  township  trustee 
to  meet  with  others  in  order  to  obtain  quorum. 

Cited  in  notes  (20  L.R.A.  167)  on  power  of  equity  to  grant  mandatory  in- 
junction: (7  Eng.  Rul.  Cas.  332)  on  mandamus  as  mode  of  trying  title  to  office. 
Parliamentary  latv. 

Cited  in  footnote  to  State  ex  rel.  Childs  v.  Kiichli,  19  L.  R.  A.  779.  which  holds 
president  of  city  council  removable  at  pleasure;  Board  of  Education  v.  Best,  2? 


6  L.R.A.  308]  L.  R.  A.  CASES  AS  AUTHORITIES.  10GO 

L.  R.  A.   77,  which  holds  mandatory,  provision  for  entry  of  ayes  and  noes  on 

motion  to  employ  teacher. 

\  ii  in  IMT  of  votes  of  body  required  for  valid  action. 

Cited  in  Anniston  v.  Davis,  98  Ala.  634,  39  Am.  St.  Rep.  94,  13  So.  331,  hold- 
ing that  majority  of  quorum  cannot  elect  where  charter  requires  vacancy  filled 
by  majority  of  remaining  members  of  council. 

Cited  in  footnotes  to  State  ex  rel.  Cope  v.  Foraker,  6  L.  R.  A.  422.  which 
requires  majority  of  all  votes  cast  for  senators  and  representatives  to  pass  amend- 
ment of  Constitution;  Smith  v.  Proctor,  14  L.  R.  A.  403,  holding  majority  of 
those  actually  voting  as  to  issue  of  school  bonds  sufficient;  State  ex  rel.  Wiesen- 
thal  v.  Denny,  16  L.  R.  A.  214,  which  holds  majority  of  persons  actually  voting 
on  amendment  of  city  charter  sufficient;  People  ex  rel.  Hoffman  v.  Hecht,  27 
L.  R.  A.  203,  which  authorizes  majority  of  board  to  organize  and  act,  though 
minority  disqualified;  State  ex  rel.  Little  v.  Langlie,  32  L.  R,  A.  723,  which  holds 
a  two-thirds  majority  of  votes  polled  on  proposal  to  relocate  county  seat  suffi- 
cient; Belknap  v.  Louisville,  34  L.  R.  A.  256,  which  requires  two-thirds  of  all 
votes  cast  for  any  purpose  necessary  to  authorize  municipal  indebtedness;  Zeiler 
v.  Central  R,  Co.  34  L.  R.  A.  469,  which  requires  only  two  thirds  of  members 
voting  to  dispense  with  reading  of  proposed  city  ordinances ;  Bryan  v.  Stephenson, 
35  L.  R.  A.  752,  which  requires  majority  of  all  votes  cast  at  election  to  authorize 
issue  of  bonds;  Citizens  &  Taxpayers  v.  Williams,  37  L.  R.  A.  761,  which  holds 
only  majority  of  taxpayers  actually  voting  at  election  necessary  to  authorize  in- 
crease of  taxes;  Montgomery  County  Fiscal  Court  v.  Trimble,  42  L.  R.  A.  738, 
which  holds  two  thirds  of  those  voting  on  question  of  creating  county  indebted- 
ness sufficient;  State  ex  rel.  McClurg  v.  Powell,  48  L.  R.  A.  652,  which  requires 
majority  of  all  electors  voting  at  election  for  any  purpose,  to  adopt  constitutional 
amendment;  Re  Denny,  51  L.  R.  A.  722,  which  requires  majority  of  all  votes  cast 
at  election  for  any  purpose  to  adopt  constitutional  amendment. 
—  Quorum. 

Cited  in  Re  Schuylkill  Haven  Xominations,  20  Pa.  Co.  Ct.  420,  holding  ma- 
jority of  body  constitutes  quorum  unless  law  of  the  body  directs  otherwise ; 
State  ex  rel.  Granvold  v.  Porter,  11  N.  D.  319,  91  X.  W.  944,  holding  those  who 
do  not  attend  a  convention  regularly  called,  are  presumed  to  assent  to  the  action 
of  the  majority  of  those  who  do  attend  and  vote;  Richardson  v.  Young,  122 
Tenn.  538,  125  S.  W.  664.  to  the  joint  majority  of  members  of  deliberative  body 
constitute  quorum  to  do  business,  and  majority  of  that  majority  has  power  to 
do  work  of  whole. 

Cited  in  footnotes  to  Williams  v.  Benet,  14  L.  R.  A.  825,  which  holds  two  asso- 
ciate justices  constitute  quorum  of  Florida  supreme  court  though  vacancy  exists 
in  office  of  chief  justice;  State  ex  rel.  Walden  v.  Vanosdal,  15  L.  R.  A.  832, 
which  holds  quorum  not  lost  by  half  of  township  trustees  stepping  into  crowd  of 
'bystanders  without  leaving  room;  State  ex  rel.  Stantord  v.  Ellington,  30  L.  R.  A. 
532,  which  holds  majority  of  members  of  legislative  body  a  quorum. 

Cited  in  note    (21  L.  R.  A.  175)    on  what  constitutes  quorum  for  meeting  of 
stockholders. 
Veto. 

Cited  in  Pollasky  v.  Schroid,  128  Mich.  701..  55  L.  R,  A.  615,  footnote,  p.  614, 
92  Am.  St.  Rep.  560,  87  X.  W.  1030,  holding  two  thirds  of  whole  number  of 
council  required  to  override  veto. 

Cited  in  footnote  to  Gate  v.  Martin,  48  L.  R.  A.  613,  which  denies  mayor's 
power  to  veto  action  by  aldermen  in  passing  on  election  for  member  of  board,  of 
which  such  board  is  made  exclusive  and  final  judge. 


1001  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  315 

Decision   of   tie   vote. 

Cited  in  footnotes  to  Wooster  v.  Mullins,  25  L.  R.  A,  694,  which  authorizes 
casting  vote  by  mayor  where  three  newspapers  each  receive  votes  of  four  alder- 
men; State  ex  rel.  Young  v.  Yates.  37  L.  R.  A.  205,  which  holds  mayor's  right 
to  cast  vote  in  case  of  tie  not  restricted  by  provision  requiring  majority  vote  of 
all  members  of  council;  Brown  v.  Foster.  31  L.  R.  A.  116,  which  authorizes  mayor 
to  vote  only  to  break  tie;  State  ex  rel.  Morris  v.  McFarland,  39  L.  R.  A.  282. 
which  holds  auditor's  right  to  give  casting  vote  on  tie  vote  by  township  trustees 
not  limited  to  vote  by  ballot;  Johnston  v.  State,  12  L.  R.  A.  235,  which  holds 
statute  for  determining  tie  vote  by  lot  valid;  State  ex  rel.  Morris  v.  McFarland, 
39  L.  R,  A.  282.  which  holds  auditor  entitled  to  give  casting  vote  for  filling 
vacancy  in  office  of  county  superintendent  on  rt'ra  voce  vote. 

Cited  in  note  (47  L.  R.  A.  552,  554,  561,  562)  on  decision  of  tie  vote  at  election. 
Effect  to  be  griven  blank  ballot. 

Cited  in  Murdoch  v.  Strange,  99  Md.  108,  57  Atl.  628,  3  A.  &  E.  Ann.  Cas.  66, 
holding  a  blank  ballot  should  be  given  no  significance. 
Questions  of  validity  of  election  in  contested  election  case. 

Cited  in  Maloney  v.  Collier,  112  Tenn.  91,  83  S.  W.  667,  holding  the  validity 
of  an  election  may  be  determined  in  a  contested  election  case. 

Cited  in  note  (30  Am.  St.  Rep.  266)  on  effect  on  election  of  irregularity  by 
election  officer. 

6  L.  R,  A.  315,  RUSHVILLE  GAS  CO.  v.  RUSHVILLE,  121  Ind.  206,  16  Am.  St. 

Rep.  388,  23  X.  E.  72. 
Majority    vote. 

Cited  in  Re  Denny,  156  Ind.  151,  51  L.  R.  A.  739,  59  N.  E.  359,  holding  that 
majority  vote  means  majority  of  those  who  choose  to  take  part;  Re  Doyle,  1 
Daulphin  Co.  Rep.  351,  7  Pa.  Dist.  R.  637,  24  Pa.  Co.  Ct.  30,  holding,  where 
there  is  quorum  of  deliberative  body  present,  majority  of  those  present  can  trans- 
act business;  Smith  v.  State,  64  Kan.  732,  68  Pac.  641,  and  Thurston  v.  Huston, 
123  Iowa,  160,  98  N.  W.  637,  sustaining  resolution  adopted  by  majority  of 
quorum  of  city  council;  State  ex  rel.  Walden  v.  Vanosdal,  131  Ind.  391,  15  L.  R.  A. 
833,  31  N.  E.  79,  and  State  ex  rel.  Drummond  v.  Dillon,  125  Ind.  69,  25  X.  E.  136, 
holding  that  candidate  receiving  majority  of  votes  is  elected  when  quorum  of 
township  trustees  are  present  and  voting;  Wheeler  v.  Com.  98  Ky.  64,  32  S.  W. 
259,  holding  candidate  receiving  vote  of  six  of  twelve  members  of  city  council 
against  five  votes  for  another,  and  one  vote  for  candidate  previously  dropped  by 
resolution,  elected;  Davis  v.  Brown.  46  W.  Va.  720,  34  S.  E.  839,  holding  statute 
requiring  relocation  of  county  seat  to  be  carried  by  "three  fifths  of  all  votes  cast 
upon  question"  not  require  three  fifths  of  all  votes  cast  at  election;  State  ex  rel. 
Hocknell  v.  Roper.  47  Xeb.  425,  66  X.  W.  539,  holding  city  receiving  three  fifths, 
of  votes  cast  and  counted  at  election  for  relocation  entitled  to  county  seat,, 
although  number  of  votes  received  is  less  than  three  fifths  of  vote,  counting  re- 
jected ballots;  Com.  ex  rel.  Moulds  v.  Fleming,  23  Pa.  Super.  Ct.  409;  State 
ex  rel.  Aucoin  v.  Police  Comrs.  113  La.  427,  37  So.  16, — holding  it  suffices- 
always  that  a  quorum  of  a  board  should  be  present,  and  that  a  majority  of  the 
quorum  concur:  Strange  v.  Oconto  Land  Co.  136  Wis.  523,  117  X.  W.  1023, 
holding  the  presumption  is  where  chairman  of  county  board  declares  a  resolution 
adopted  that  he  knew  the  law  and  that  he  voted  for  it  when  his  vote  would  be 
necessary  to  its  passage. 

Cited  in  footnotes  to  State  ex  rel.  Young  v.  Yates,  37  L.  R,  A.  205,  which  holds 
mayor's  right  to  casting  vote  in  case  of  tie  not  restricted  by  provision  requiring: 


6  L.R.A.  315]  L.  R.  A.  CASES  AS  AUTHORITIES.  1062 

majority  vote  of  all  members  of  council;  Pollasky  v.  Schmid,  55  L.  R.  A.  614, 
which  requires  two  thirds  majority  of  all  members  elected  to  council  to  pass 
ordinance  over  veto,  though  some  seats  vacant. 

Cited  in  notes  (6  L.  R.  A.  308)  on  majority  vote;  (6  L.  R.  A.  311)  on  right 
of  presiding  officer  as  to  casting  vote;  (47  L.  R.  A.  561)  on  decision  of  tie  vote 
at  election. 

Distinguished   in   Eufaula  v.   Gibson,  22  Okla.   527,   98   Pac.   565,  holding  for 
purpose  of  determining  effect  of  a  special  election  on  relocation  of  county  seat, 
all  votes  intelligible  and  untelligible  should  be  considered. 
Effect  of  refusal  to  vote. 

Cited  in  United  States  v.  Ballin,  144  U.  S.  8,  36  L.  ed.  326,  12  Sup.  Ct.  Rep. 
507,  holding  rule  of  House  of  Representatives  permitting  count  of  members 
present,  though  not  voting,  to  determine  presence  of  quorum,  constitutional ; 
Somers  v.  Bridgeport,  60  Conn.  528,  22  Atl.  1015,  holding  person  receiving  ma- 
jority vote  of  elective  body  properly  constituted,  elected,  although  majority 
abstain  from  voting;  State  ex  rel.  Young  v.  Yates,  19  Mont.  244,  37  L.  R.  A.  207, 
47  Pac.  1004,  holding  half  of  city  council  present  and  not  voting  not  create  tie, 
requiring  vote  of  mayor;  Landes  v.  State,  160  Ind.  483,  67  X1.  E.  189,  holding 
ordinance  on  which  half  the  councilmen  present  refused  to  vote,  unanimously 
adopted;  Ray  v.  Armstrong,  140  Ky.  820,  131  S.  W.  1039,  holding  that  refusal 
of  member  of  board  to  vote,  when  present,  is,  in  effect,  a  declaration  that  he 
concur  with  majority  where  board  consists  of  eight  members  and  four  vote  for 
measure  and  three  against;  State  ex  rel.  Granvold  v.  Porter,  11  N.  D.  319,  91 
X1.  W.  944,  holding  silence  of  delegates  to  a  convention  in  not  voting  is  deemed 
an  assent  to  actioji  of  majority  action  of  those  voting;  Myers  v.  Union  League, 
17  Pa.  Dist.  R.  306;  Murdoch  v.  Strange,  99  Md.  Ill,  57  Atl.  628.  3  A.  &  E. 
Ann.  Cas.  66, — holding  the  effect  of  being  present  and  refraining  from  voting 
at  a  meeting  of  a  corporate  body  is  to  acquiesce  in  the  majority  vote. 
Municipal  corporations;  power  to  operate  -water  and  liii.h tinji  plant**. 

Cited  in  Rockebrandt  v.  Madison,  9  Ind.  App.  229,  53  Am.  St.  Rep.  348,  36 
N.  E.  444,  and  Crawfordsville  v.  Braden,  130  Ind.  152,  14  L.  R.  A.  270,  30  Am. 
St.  Rep.  214,  28  X.  E.  849,  upholding  city's  power  to  own  and  operate  electric 
plant  for  lighting  streets  and  supplying  private  consumers;  Mitchell  v.  Xegaunee, 
113  Mich.  367,  38  L.  R.  A.  160,  67  Am.  St.  Rep.  468,  71  X.  W.  046.  holding  that 
legislature  may  authorize  city  to  erect  and  operate  electric  plant  for  lighting 
streets,  and  furnishing  light  to  inhabitants:  Ellinwood  v.  Reedsburg,  91  \Yi*. 
134,  64  N.  W.  885.  holding  express  delegation  of  power  unnecessary  to  enable 
city  to  build  and  operate  municipal  water  and  lighting  plants ;  Wadsworth  v. 
Concord,  133  N.  C.  593,  45  S.  E.  948,  by  Clark-,  Ch.  J.,  concurring,  who  holds 
that  municipal  board  cannot  bind  town  by  contract  for  lighting  streets  beyond 
term  of  office. 

Cited  in  note   (15  L.R.A.  (X.S.)   712)   on  power  of  municipality  to  own  electric- 
light  plant. 
Authority   of   city   to   issue   lioncls. 

Cited  in  Coffin  v.  Indianapolis,  59  Fed.  227,  holding  that  city  organized  under 
general  law  cannot  issue  and  sell  bonds  to  raise  money  by  way  of  loan,  unless 
expressly  authorized;  Kirkpatrick  v.  Van  Cleave,  44  Ind.  App.  633,  89  X.  E. 
913,  holding  that  township  advisory  boards  may  by  majority  vote  appropriate 
money  for  expenditures  not  included  in  existing  estimates  and  levy. 

Cited  in  notes  (21  Am.  St.  Rep.  373)  on  powers  of  municipal  corporations 
to  issue  bonds;  (51  Am.  St.  Rep.  830)  on  municipal  bonds  in  hands  of  bona 
;fide  holders. 


1063  L.  R.  A.  (ASKS  AS  AUTHORITIES.  [6  L.R.A.  320 

—  To    furnish   rvnter    to   itm   Inhabitants. 

Cited   in  Scott  v.   Laporte,   162   Ind.  47,   08   X.   E.  278,   holding  the  statutes 
authorize  the  city  to  furnish   water  to   its   inhabitants   in  connection   with   pro- 
curing water  for  public  purposes. 
Statute   construed    as    part    of    system. 

Cited  in  Hyland  v.  Brazil  Block  Coal  Co.  128  Ind.  341,  26  N.  E.  672,  holding 
that  statute  must  be  considered  as  part  of  body  of  law,  and  not  independently: 
Hazlehurst  v.  Mayes,  96  Miss.  670.  51  So.  890  (dissenting  opinion),  on  duty  of 
court  to  construe  statute  as  part  of  one  great  system  and  not  as  fragment. 

6  L.  R.  A.  318,  SCHIPPER  v.  AURORA,  121  Ind.  154,  22  N.  E.  878. 
Sewers    as    incident    to    streets. 

Cited  in  Greensburg  v.  Zoller,  28  Ind.  App.  131,  60  X.  E.  1007,  holding  tile 
drains  properly  part  of  street  improvement. 

Cited  in  note  (61  L.  R.  A.  691)   on  duty  and  liability  of  municipality  with  re- 
spect to  drainage. 
Unauthorized    municipal    contract. 

Cited  in  Boyd  v.  Mill  Creek  School  Twp.  124  Ind.  195,  24  N.  E.  661,  holding 
that  recovery  must  be  on  quantum  meruit,  not  on  contract  when  latter  illegal; 
Smith  v.  Miami  County,  6  Ind.  App.  166,  33  X.  E.  243,  holding  county  liable  for 
material  and  labor  inuring  to  its  benefit  under  ultra  vires  contract;  Stone  v. 
Morgan,  13  Ind.  App.  54,  41  N.  E.  79  (dissenting  opinion),  majority  holding 
allegation  of  claim  under  contract  unenforceable  under  statute  of  frauds  in- 
sufficient on  demurrer;  London  &  X.  Y.  Land  Co.  v.  Jellico,  103  Tenn.  323,  52 
S.  W.  995,  holding  city  liable  according  to  benefits  from  improvements  under 
invalid  contract;  Moss  v.  Sugar  Ridge  Twp.  161  Ind.  425,  68  X.  E.  896,  denying 
township's  liability  for  work  done  on  highway  under  contract  made  in  violation 
of  statute:  Valparaiso  v.  Valparaiso  City  Water  Co.  30  Ind.  App.  327,  65  X.  E. 
1C63,  holding  ultra  vires  provisions  in  franchise  no  defense  to  water  company's 
action  for  hydrant  rental;  McXay  v.  Lowell,  41  Ind.  App.  638,  84  X.  E.  778, 
holding  contracts  by  municipal  officers  which  were  either  prohibited  by  statute 
or  violate  rules  of  public  policy,  create  no  implied  liability  against  such  cor- 
porations; Xew  Albany  v.  Xew  Albany  Street  R.  Co.  172  Ind.  490,  87  X.  E. 
1084,  holding  any  attempt  at  limitation  of  right  of  city  to  make  reasonable 
laws  and  to  exercise  the  police  power,  by  charter  contract  or  otherwise  is  futile ; 
Vandalia  R.  Co.  v.  State,  166  Ind.  231,  117  Am.  St.  Rep.  370,  76  X.  E.  980, 
holding  city  has  no  power  to  cede  away,  limit  or  control  its  legislative  or  govern- 
mental powers,  or  to  disable  itself  from  performing  its  public  duties;  Grand 
Trunk  Western  R.  Co.  v.  South  Bend,  174  Ind.  216,  36  L.R.A.(X.S.)  855,  89 
X.  E.  885,  holding  that  cities  cannot  by  contract  surrender  any  of  their  legis- 
lative or  discretionary  powers  held  in  trust  for  public. 

Cited  in  footnote  to  Barber  Asphalt  Paving  Co.  v.  Harrisburg,  29  L.  R.  A.  401, 
which  holds  city  liable  under  contract  for  cost  of  paving  streets  when  assess- 
ment proves  invalid. 

Cited  in  notes  (6  L.  R.  A.  290)  as  to  doctrine  of  ultra  vires;  (19  L.  R.  A.  620) 
as  to  limitation  of  doctrine  of  ultra  vires  in  respect  to  municipal  corporations. 

6  L.  R.  A.  320,  LOUISVILLE.  X.  A.  &  C.  R.  CO.  v.  SMITH,   121  Ind.  353,  22 

X.  E.  77.-,. 
Liability    for   emergency   aid. 

Cited  in  Evansville  &  R.  R.  Co.  v.  Freeland.  4  Ind.  App.  212.  30  X.  E.  803, 
holding  company  liable  to  surgeon  employed  for  necessary  operation  upon  em- 
ployee in  emergency,  when  local  surgeon  employed  on  other  injuries  in  wreck; 


6  L.R.A.  320]  L.  R.  A.  CASES  AS  AUTHORITIES.  1064 

Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Mylott,  0  Ind.  App.  442,  33  X.  E.  135,  holding 
that  conductor  may  bind  railroad  for  aid  and  shelter  of  brakeman  seriously 
injured  at  place  remote  from  company's  general  offices;  Louisville  &  X.  R.  Co. 
v.  Ginley,  100  Tenn.  478,  45  S.  W.  348,  holding  that  conductor  has  implied  au- 
thority to  employ  brakemen  in  exigency  requiring  additional  help  for  proper 
management  or  protection  of  train ;  Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Davis,. 
126  Ind.  101,  9  L.  R.  A.  504,  25  X.  E.  878,  holding  railroad  liable  to  surgeon 
for  services  rendered  to  person  injured  by  company's  trains,  at  request  of  gen- 
eral superintendent;  Bedford  Belt  R.  Co.  v.  McDonald,  12  Ind.  App.  622,  40- 
X.  E.  821,  holding  physician's  complaint  for  services  rendered  insufficient  for 
not  showing  license  to  render  such  services,  or  their  rendition  to  employee  injured 
on  duty,  or  for  injuries  by  defendant's  trains;  Chicago  &  E.  R.  Co.  v.  Behrens, 
9  Ind.  App.  578,  37  X.  E.  26,  holding  railroad  company  not  liable  for  care  and 
board  furnished  its  injured  employee  at  request  of  local  surgeon  taking  case  at 
conductor's  direction;  Southern  R.  Co.  AT.  Hazelwood,  45  Ind.  App.  481,  88  X.  E. 
636,  holding  that  claim  agent  with  authority  to  compromise  claims,  and  who 
employed  physician  to  attend  injured  employee,  had  authority  to  employ  surgeon. 

Cited  in  notes  in  (20  L.R.A.  696)  as  to  authority  of  agent  or  representative  to 
employ  medical  services  for  employee  or  other  third  persons;  (4  L.R.A. (X.S.) 
54,  64)  on  duty  to  provide  medical  assistance  for  servant. 

Distinguished  in  Hunt  v.  Illinois  C.  R.  Co.  163  Ind.  110,  71  X.  E.  195,  holding 
conductor  has  no  authority  to  bind  company  for  room  and  board  for  an  injured 
employee  and  his  relatives  waiting  on  him  where  he  is  moved  at  his  own  request 
to  a  point  distant  when  ample  facilities  were  at  hand  where  accident  occurred. 

Distinguished  and  limited  in  Holmes  v.  McAllister.  123  Mich.  497,  48  L.  R.  A, 
398,  82  X.  W.  220,  holding  laundryman  not  liable  for  services  of  physician  called 
in  his  absence  by  foreman  to  attend  injured  employee;  Godshaw  v.  J.  X.  Struck 
&  Bro.  109  Ky.  288,  51  L.  R.  A.  670,  58  S.  W.  781,  holding  foreman  of  car- 
penter work  without  implied  authority  to  engage  medical  attendance  for  injured 
workman,  under  him. 

6  L.  R.  A.  321,  GEXERAL  ASSEMBLY  OF  PRES.  CHURCH  v.  GUTHRIE,  8ft 

Va.  125,  10  S.  E.  318. 
Validity  of   devise. 

Followed  in  Guthrie  v.  Guthrie,  1  Va.  Dec.  717,  10  S.  E.  327,  holding  devise 
to  incorporated  church  agency  not  repugnant  to  constitution  forbidding  incor- 
poration of  church. 

Cited  in  Deepwater  R.  Co.  v.  Honaker,  66  W.  Va.  142.  27  L.R.A.  (X.S.)  392, 
66  S.  E.  104,  holding  a  conveyance  of  land  to  trustees  for  benefit  of  a  religious 
sect  is  not  void  for  uncertainty;  Jordan  v.  Universalist  General  Convention.  107 
Va.  85,  57  S.  E.  652,  upholding  a  bequest  to  trustees  of  a  remainder  in  certain 
real  estate  to  be  sold  and  applied  to  certain  mission  work  in  United  States  of 
America. 

Cited  in  footnotes  to  Kelly  v.  Xichols,  19  L.  R.  A.  413,  as  to  what  constitutes 
charitable  use  or  trust;  Crerar  v.  \Yilliams,  21  L.  R.  A.  454.  which  holds  gift 
of  free  public  library  in  great  city  charitable;  Thompson  v.  Brown,  62  L.  R.  A. 
398,  which  sustains  devise  of  fund  to  be  distributed  by  executor  "to  the  poor." 

Cited  in  note  (14  L.R.A. (X.S.)  56,  73,  152)  on  enforcement  of  general  bequest 
for  charity  or  religion. 

Cited  as  obiter  in  Fifield  v.  Van  Wyck,  94  Va.  5GS,  64  Am.  St.  Rep.  745,  27 
S.  E.  446,  holding  devise  to  two  trustees,  their  survivors  or  appointees  in  case- 
of  their  death,  in  trust  for  Xew  Jerusalem  Church  (Swedenborgian),  unenforce- 
able for  vagueness. 


1005  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  336 

Effect   of  repeal   of  statute   declaratory   of  common    \st\\    on   common   law. 

Cited  in  Roller  v.  Murray,  107  Va.  542,  59  S.  E.  421,  holding  the  effect  of  an 
implied  repeal  of  a  statute  arising  out  of  an  omission  to  embody  the  statute  in 
a  revision  does  not  operate  as  a  repeal  of  the  common  law  of  which  it  was  de- 
claratory in  a  limited  sense. 
Misdescription  of  legratee. 

Cited  in  Jordan  v.  Richmond  Home,  106  Va.  717,  56  S.  E.  730,  holding  a  gift 
to  the  "Trustees  of  the  Presbyterian  Home  for  old  Ladies,"  situated  in  Richmond, 
Va.,  good  where  evidence  shows  the  '•Richmond  Home  for  Ladies"  was  intended. 
Conflict  of  laws  as  to  trills. 

Cited  in  note  (2  L.R.A.  (X.S.)  456)  on  conflict  of  laws  as  to  wills. 
Validity  of  gift  to  religions  society. 

Cited  in  Deepwater  R.  Co.  v.  Honaker,  66  W.  Va.  142,  27  L.R.A.(N.S.)  392, 
66  S.  E.  104,  on  validity  of  parol  dedication  of  land  to  religious  sect  or  denom- 
ination. 

6  L.  R.  A.  3.32,  VAX  BIBBER  v.  REESE,  71  Md.  608,  18  Atl.  892. 
Liability  of  estates  for  debts. 

Cited  in  McXiece  v.  Eliason,  78  Md.  176,  27  Atl.  940,  denying  general  cred- 
itor's right  to  redeem  mortgage  on  decedent's  lands  and  be  subrogated  to  mort- 
gagee's rights;  Constable  v.  Camp,  87  Md.  181,  39  Atl.  807,  denying  creditor's 
right  to  maintain  bill  against  legatees  after  delay  of  fifteen  years  and  dis- 
tribution of  estate;  Seldner  v.  Katz,  96  Md.  219,  53  Atl.  931,  holding  that  court 
cannot  order  heirs  to  sell  inherited  land  in  another  state  to  pay  decedent's 
creditors;  Wisconsin  Trust  Co.  v.  Chapman,  121  Wis.  489,  105  Am.  St.  Rep. 
1032,  99  X.  W.  341,  holding  notes  given  by  an  administrator  under  direction 
of  the  court  for  loan  to  pay  up  claims  against  the  decedent  do  not  bind  the  ad- 
ministrator personally. 

Distinguished  in  McGaw  v.   Gortner,   96  Md.   493,  54  Atl.   133,  holding  that 
decedent's  land  cannot  be  subjected  to  claim  for  unliquidated  damages  arising 
from  heir's  refusal  to  perform  decedent's  option  contract. 
A'alidity  of  sale  of  decedents  lands  for  debts. 

Cited  in  Scarlett  v.  Robinson,  112  Md.  210,  76  Atl.  181,  holding  the  purchaser 
of  realty  of  decedent  is  protected  from  liability  for  debts  when  record  of  orph- 
ans' court  shows  final  settlement  of  personal  estate  indicating  a  balance  after 
payment  of  debts. 

6  L.  R.  A.  330,  BARRETT  v.  MARKET  STREET  CABLE  R.  CO.  81  Cal.  296, 

15  Am.  St.  Rep.  61,  22  Pac.  859. 
Reasonable   tender. 

Cited  in  note  (35  L.  R.  A.  489)  on  what  is  a  reasonable  sum  out  of  which  a 
common  carrier  may  be  required  to  take  a  passenger's  fare  and  return  the  change. 

Distinguished  in  Muldowney  v.  Pittsburgh  &  B.  Traction  Co.  29  Pittsb.  L.  J. 
X.  S.  159,  43  W.  X.  C.  53,  8  Pa.  Super.  Ct.  338,  holding  tender  of  $5  bill  for  a 
5  cent  fare  unreasonable  in  law ;  Funderburg  v.  Augusta  &  A.  R.  Co.  81  S.  C.  144, 
21  L.R.A. (X.S. )  870,  61  S.  E.  1075,  holding  a  rule  requiring  a  street  car  con- 
ductor to  give  change  only  to  amount  of  $1.95  for  a  five-cent  fare,  except  in  his 
discretion,  is  reasonable. 

Disapproved  in  Wynn  v.  Georgia  R.  &  Electric  Co.  6  Ga.  App.  79,  64  S.  E.  278; 
Barker  v.  Central  Park.  X.  &  E.  River  R.  Co.  151  N.  Y.  242,  35  L.R.A.  492, 
56  Am.  St.  Rep.  626.  45  X.  E.  550.— holding  under  a  like  rule  a  tender  of  five 
dollars  to  be  changed  for  a  five-cent  fare  is  unreasonable. 


6  LRJL  338]  L.  R.  A.  CASES  AS  AUTHORITIES.  1066 

6  L.  R-  A.  338,  WHJ)XER  v.  FERGUSON.  42  Minn.  112,  18  Am.  St.  Rep.  495, 

43  X.  W.  794. 
CoMtractioB  *f  vror*m  tm  title  of  twrt. 

Cited  in  State  ex  ret.  Olsen  \.  Board  of  Control,  85  Minn.  172,  88  X.  W.  533, 
Lolding  title  of  act  should  be  liberally  construed  to  uphold  constitutionality. 
Who  are  lafcoren  or  working  ••«••  iritkia  exemption  atatate. 

Cited  in  Henderson  v.  Xott,  36  Xeb.  157.  3S  Am.  St.  Rep.  720,  54  X.  W.  87, 
construing  term  "laborer"  to  mean  one  hired  to  do  manual  or  menial  labor  for 
another;  Boyle  v.  Yanderhoof,  45  Minn.  32.  47  X.  Y.  396,  construing  garnishment 
exemption  act  for  '"working  men'*  applicable  to  telegraph  operators;  Paddock  v. 
Ralgord.  2  S.  D.  105,  48  X.  W.  840,  holding  allegation  that  judgment  was  for- 
"labor"  not  equivalent  to  '"for  laborer's  or  mechanic's  wages;"  Moore  v.  Ameri- 
can Industrial  Co.  138  X.  C.  307,  50  S.  EL  687,  holding  one  who  kept  the  books 
of  the  corporation,  conducted  the  commissary  store,  and  superintended  the  con- 
duct of  milling  operations,  not  a  laborer. 

Cited  in  footnotes  to  Equitable  L.  Assur.  Soc.  v.  Goode,  35  L.  R.  A.  690,  which 
holds  law  library  of  attorney  occupying  part  of  time  in  legal  business  exempt; 
Rustad  v.  Bishop,  50  L.  R-  A.  168,  which  denies  right  to  hold  back  successive 
exempt  wages  by  successive  garnishments  and  reach  same  by  new  garnishment 
after  exemption  period  expires;  Siever  v.  Union  P.  R.  Co.  61  L.  R.  A.  319,  which 
sustains  right  to  injunction  against  prosecuting  multiplicity  of  garnishment  pro- 
ceedings for  exempt  wages. 

Cited  in  notes  1  18  LJLA.  310)  as  to  who  are  laborers,  whose  earnings  are 
exempt  from  attachment  or  garnishment:  (58  Am.  St.  Rep.  304,  308)  on  who 
are  laborers;  (102  Am,  St.  Rep.  85,  87,  88,  96)  on  exemption  of  wages,  salaries, 
and  earnings. 

6  L.  R.  A.  339,  STATE  T.  ROBIXSOX,  42  Minn.  107,  43  X.  W.  833. 


Cited  in  Cheyenee  T.  O'Connell,  6  Wyo.  499,  46  Pac.  1088,  holding  one  act 
of  hanling  rubbish  for  pay  not  violation  of  ordinance  prohibiting  use  of  ^vagon 
without  license;  Combs  v.  Lakewood.  68  X.  J.  L.  583,  53  Atl.  697,  sustaining 
township  ordinance  licensing  and  regulating  vehicles  carrying  passengers  for 
hire  upon  highways:  Des  Moines  T.  Bolton,  128  Iowa,  112,  102  X.  W.  1045,  5  A. 
&  E.  Ann.  Cas.  906,  holding  an  ordinance  licensing  drays  and  all  conveyances 
transporting  people  or  property  for  hire  is  constitutional  though  it  does  not 
apply  to  liverymen:  MeCauley  v.  State,  83  Xeb.  433,  119  X.  W.  675',  holding  that 
charter  provision  for  license  on  vehicles  does  not  apply  to  wagons  rented  to  firms 
under  monthly  contracts;  Kellam  v.  Xewark.  79  X.  J.  L.  367,  75  Atl.  548,  to  the 
point  that  ordinances  containing  general  words  "carriages  and  vehicles  used  for 
transportation19  are  restricted  in  application  to  hackmen,  public  cartmen,  and  the 
like. 

Cited  in  footnotes  to  Child  v.  Bemns,  12  L.  R.  A.  57,  which  holds  discretionary 
power  granted  mayor  to  revoke  licenses  not  unreasonable;  State  v.  Finch,  46 
L.  R.  A.  437,  which  sustains  validity  of  license  on  express  wagons  greatly  in 
excess  of  that  imposed  on  hacks. 

Cited  in  notes  (36  LJR.A.  413)  on  license  fee  for  use  of  street  by  vehicles; 
"129  Am.  St.  Rep.  285)  on  constitutional  limitations  on  power  to  impose  license 
or  occupation  taxes. 


1067  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L^RJL  342 

6  L.  R.  A.  340,  GARGAX  T.  LOUISVILLE,  X.  A.  &  C.  R.  CO.  89  Ky.  212,  12 
S.  W.  259. 


of  abBtti«K  owmer»  ! 

Cited  in  Bannon  v.  Rohmeiser,  90  Ky.  52,  29  Am.  St.  Rep.  355,  13  S.  W.  444, 
holding  legislature  powerless  to  close  alley  without  consent  of  abutting  owners; 
Martin  T.  Louisville,  97  Ky.  33,  29  S.  W.  864,  holding  city's  power  to  dose 
streets  and  alleys  dependent  upon  legislative  authority;  Bigelow  v.  Ba  Merino. 
Ill  Cal.  564,  44  Pac.  307,  holding  lot  owner  entitled  to  damages  for  taking  of 
easement  in  street  for  public  use;  Re  Melon  Street,  182  Pa.  397,  38  L.  R.  A.  283, 
38  Atl.  482  (adopting  dissenting  opinion  in  1  Pa.  Super.  Ct.  92.},  holding  owner 
of  property  abutting  on  part  of  street  not  vacated  entitled  to  damages;  Illinois 
C.  R.  Co.  T.  Elliot,  129  Ky.  129,  110  S.  W.  817,  holding  a  recovery  may  be  had 
by  lot  owner  by.  reason  of  construction  of  railroad  across  alley  causing  ob- 
struction, though  not  abutting  his  property;  Henderson  v.  Lexington,  132  Ky. 
401,  22  L.RJMX.S.)  28,  111  S.  W.  318,  holding  the  closing  of  a  public  street, 
alley,  or  highway  is  a  taking  of  private  property  and  compensation  must  be 
made  to  the  abutting  owners;  Vander  burgh  v.  Minneapolis,  98  Minn.  336,  6 
L.R_\.(X.S.)  744,  108  X.  W.  480,  holding  where  access  to  property  from  a  portion 
of  street  is  entirely  cut  off,  and  right  of  ingress  and  egress  from  that  direction 
permanently  taken  away  an  injury,  not  common  to  the  public  is  suffered  : 
Jackson  v.  Birmingham  Foundry  &  Mach.  Co.  154  Ala.  473,  45  So.  660.  holding 
the  easement  of  access  comprehends  the  unobstructed  right  of  convenient  and 
reasonable  ingress  and  egress  to  the  property  abutting  on  the  street. 

Cited  in  notes  (10  LJLA.  276)  on  rights  of  abutting  lot  owners  in  streets; 
(2  LJJJMX.S.)  270)  on  right  of  property  owner  whose  access  from  one  direction 
is  shut  off  or  interfered  with  by  closing  of  street;  (9  LRJMXJ3.)  497)  on 
right  of  landowner  to  damages  for  obstruction  of  street  or  highway  by  railroad 
not  adjacent  to  property. 

6  L.  R.  A.  342,  WILEY  v.  ATHOL,  150  Mass.  426,  23  X.  K  311. 
Gaaramty    ••<!    tiorraaiy. 

Cited  in  Field  T.  Lamson  &  G.  Mfg.  Co.  162  Mass.  392,  27  L.  R.  A.  147,  38 
X.  E.  1126,  holding  that  guaranty  by  corporation  of  dividends  upon  preferred 
stock  only  devotes  profits  to  such  dividends  in  preference  to  those  on  common 
stock;  Keene  T.  Demelman,  172  Mass.  22.  51  X.  E.  188,  holding  that  equity  will 
rescind  executory  contract  of  sale  containing  warranty  as  to  quantity  of  land, 
based  on  mistake:  Alden  T.  Hart,  161  Mass.  580,  37  X.  E.  742,  holding  that 
vendee  could  reject  unmerchantable  cargo  of  coal  as  violation  of  implied  warranty. 
SvWtaBtial  perforwaM«*e  of  co»tr»«rt. 

Cited  in  Palmer  T.  Meriden  Britannia  Co.  188  HI.  523.  59  X.  E.  247,  Affirming 
88  HI.  App.  439,  and  Sykes  v.  St.  Cloud,  60  Minn.  452,  62  X.  W.  613.  requiring 
party  accepting  part  performance  of  contract  to  rely  on  claim  for  damages  as 
to  unperformed  part:  Joplin  Waterworks  Co.  v.  Joplin,  177  Mo.  528,  76  S.  W. 
960,  and  Illinois  Trust  &  Sav.  Bank  v.  Arkansas  City,  34  L.  R.  A.  529,  22  C.  C.  A. 
189,  40  U.  S.  App.  257,  76  Fed.  289,  holding  water  company  entitled  to  rental 
of  hydrants,  less  damage  for  failure  to  perform  contract;  Allen  v.  Mayers,  184 
Mass.  488,  69  X.  E.  320,  holding  unrecorded  assignment  of  unpaid  balance  on 
building  contract,  performed  except  as  to  trifling  detail*,  valid  against  trustee 
process  ;  Eastern  Forge  Co.  v.  Corbin.  182  Mass.  592,  66  X.  E.  419,  holding  vendor 
justified  in  refusing  to  perform  contract  where  purchaser  fails  to  make  payments 
as  stipulated;  Burke  v.  Coyne,  188  Mass.  404,  74  X.  E,  942,  holding  if  work- 
man had  failed  by  reason  of  slight  changes  of  little  value,  he  could  not  recover 


8  L.R.A.  342]  L.  R.  A.  CASES  AS  AUTHORITIES.  1068 

on  contract  itself,  unless  it  was  shown  that  plumbing  had  been  accepted;  But- 
trick  Lumber  Co  v.  Collins,  202  Mass.  420,  89  X.  E.  138,  holding  upon  the  jury 
finding  the  contract  had  been  performed,  the  last  instalment  of  the  contract  price 
had  been  earned;  Mitchell  v.  Rushing,  55  Tex.  Civ.  App.  286,  118  S.  W.  582; 
Ashland  Coal  &  Coke  Co.  v.  Hull  Coal  &  Coke  Corp.  67  \V.  Va.  512,  68  S.  E.  124; 
Chariott  v.  McMullen,  84  Conn.  706,  81  Atl.  65, — holding  that  one  cannot  retain 
benefits  of  substantial  performance  of  contract  and  repudiate  its  burdens. 

Cited  in  note  (0  L.  R.  A.  52)  on  substantial  compliance  with  building  contract. 
Waiver  of  condition  precedent. 

Cited  in  Ewing  v.  Janson,  57  Ark.  242,  21  S.  W.  430,  holding  waiver  of  per- 
formance of  conditions  precedent  no  bar  to  damages  for  breach ;  New  York  v. 
New  York  Refrigerating  Constr.  Co.  8  Misc.  69,  28  N.  Y.  Supp.  614,  holding 
granting  permit  as  condition  precedent  to  construction  of  plant  waived  by  ac- 
ceptance of  rent;  Griggs  v.  Moors,  168  Mass.  364,  47  X.  E.  128,  holding  that, 
unless  unjust  or  unfair,  court  will  not  interfere  with  party's  right  to  take  advan- 
tage of  condition  precedent. 
Water  companies. 

Cited  in  note  (61  L.  R.  A.  88)   on  rights  and  duties  of  water  company. 
Measure    of   damages. 

Cited  in  Sykes  v.  St.  Cloud,  60  Minn.  454,  62  N.  W.  613,  holding  measure  of 
damages  for  failure  to  perform  water  contract,  difference  between  actual  and 
agreed  supply;  Leavitt  v.  Fiberloid  Co.  196  Mass.  453,  15  L.R.A.  (X.S.)  868,  82 
N.  E.  682,  holding  in  absence  of  fraud  or  deceit,  party  is  entitled  to  recover  the 
difference  between  the  article  which  he  bargained  for  and  that  which  lie  received; 
Wight  v.  Chicago,  137  111.  App.  242,  holding  a  city  may  retain  a  deposit  as  liqui- 
dated damages  for  failure  to  perform  stipulated  performance  not  withstanding 
a  part  performance  being  accepted. 

Cited  in  note    (6  Eng.  Rul.  Cas.  624)    on  damages  recoverable  for  breach  of 
contract. 
Stipulations   amounting;   to   conditions   precedent. 

Cited  in  Walker  v.  Stimmel,  15  X.  D.  486,  107  X.  W.  1081,  holding  stipulations 
in  a  contract  are  not  construed  as  conditions  precedent  unless  the  construction 
is  made  necessary  by  the  terms  of  the  contract. 

Cited  in  note   (14  Eng.  Rul.  Cas.  690)    on  considering  intention  of  parties  as 
deduced  from  entire  instrument  in  determining  whether  doing  or  particular  act 
is  a  condition  precedent. 
Admissibility  of  book  entries. 

Cited  in  note  (125  Am.  St.  Rep.  858)  on  admissibility  in  evidence  against  third 
person  of  books,  reports  and  the  like  other  than  books  of  account. 

6  L.  R.  A.  346,  MURRAY  v.  ROBERTS,  150  Mass.  353,  23  X.,E.  208. 
Effect  of  insolvency  discharge  on   foreign  creditors. 

Cited  in  Rosenheim  v.  Morrow,  37  Fla.  189,  20  So.  243,  holding  nonresident 
creditors  proving  claims  and  accepting  dividend  bound  by  insolvency  proceeding; 
Pattee  v.  Paige,  163  Mass.  353,  28  L.  R.  A.  451,  footnote,  p.  451,  47  Am.  St.  Rep. 
459,  40  N.  E.  108,  holding  nonresident  creditor  accepting  dividend  in  insolvency 
waives  right  of  objection;  Swift  v.  Winchester,  96  Me.  483,  90  Am.  St.  Rep.  414, 
52  Atl.  1017,  holding  discharge  in  insolvency  void  against  nonconsenting  non- 
resident creditors. 

Cited  in  footnote  to  Lowenberg  v.  Levine,  16  L.  R.  A.  159,  which  holds  foreign 
judgment  not  released  by  discharge  in  insolvency  proceedings. 


1009  L.  E.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  349 

Cited  in  notes  (11  L.  R.  A.  328)  on  creditors  entitled  to  dividends  in  in- 
solvency; (17  L.  R.  A.  86)  on  prioritj-  of  foreign  attachment  over  subsequent 
domestic  attachment;  (62  Am.  St.  Rep.  232)  on  effect  of  discharge  in  insolvency 
against  nonresidents^ 

0  L.  R.  A.  348,  SHAW  v.  SMITH,  150  Mass.  166,  22  X.  E.  887. 
Description    of    payee    or    indorsee    of    note. 

Cited  in  Stern  v.  Eichberg,  83  111.  App.  444.  holding  notes  payable  to  estate, 
valid;  Shepard  v.  Hanson,  9  X.  D.  251,  83  X.  W.  20,  holding  indorsement  "pay 
to  guardian  of  W.  and  S."  not  direction  to  pay  to  wards  or  their  estate. 

Cited  in  footnote  to  Gordon  v.  Anderson,   12  L.  R.  A.  483,  which  holds  note 
payable  to  certain  person,  "et  al.  or  order,"  non-negotiable. 
Effect  to  be  given  paper  payable   to  fictitious  person. 

Distinguished  in  Boles  v.  Harding,  201  Mass.  106,  87  X.  E.  481,  holding  the 
maker  must  know  at  time  of  delivery  of  note  or  check,  that  name  of  payee  is 
fictitious  in  order  for  it  to  be  treated  as  payable  to  bearer. 
Construction    of   term    "attested." 

Cited  in. International  Trust  Co.  v.  Anthony,  45  Colo.  478,  22  L.R.A.(N.S.) 
1004,  101  Pac.  781,  16  A.  &  E.  Ann.  Gas.  1087.  holding  the  word  "attested" 
as  used  in  deeds,  powers,  bills  and  notes,  etc.,  includes  the  subscription. 

6  L.  R.  A.  349,  MATHEWSOX  v.  HOFFMAX,  77  Mich.  420,  43  X.  W.  879. 
Reciprocal   riparian   rights. 

Cited  in  Kray  v.  Muggli,  84  Minn.  97,  54  L.  R.  A.  479,  87  Am.  St.  Rep.  332; 
Si;  X.  W.  882,  and  Smith  v.  Youmans,  96  Wis.  110,  37  L.  R.  A.  288,  05  Am.  St. 
Rep.  32,  70  X.  W.  1115.  sustaining  right  of  mill  owner  and  owners  of  summer 
resorts  to  have  artificial  level  of  lake  maintained;  Lakeside  Paper  Co.  v.  .State, 
15  App.  Div.  172,  44  X.  Y.  Supp.  281.  holding  state  could  not  interfere  with 
permanently  changed  channel  of  lake  outlet  for  canal  purposes;  Matheson  v. 
Ward,  24  Wash.  411.  85  Am.  St.  Rep.  955,  64  Pac.  520,  holding  that  acquiescence 
for  thirty  years  in  diversion  bars  right  to  return  stream  to  natural  channel ; 
Broadwell  Special  Drainage  Dist.  Xo.  1  v.  Lawrence,  231  111.  98,  83  X.  E.  104, 
holding  mutual  and  reciprocal  rights  are  acquired  where  dominant  owner  changes 
water  to  a  new  channel  and  it  thereafter  flows  continuously  for  twenty  years  in 
new  channel:  Tower  v.  Somerset  Twp.  143  Mich.  200,  106  X.  W.  874,  on  pre- 
scriptive rights  in  flow  of  water  diverted  from  natural  course. 

Cited  in  notes  (41  L.  R.  A.  750)  on  correlative  rights  of  upper  and  lower 
proprietors  as  to  use  and  flow  of  water  in  stream;  (50  L.  R,  A.  845)  on  rights 
acquired  in  artificial  condition  of  body  of  water:  (10  Eng.  Rul.  Cas.  225)  on 
acquisition  by  riparian  owner  of  easement  in  artificial  stream  as  against  its- 
originator;  (25  Am.  St.  Rep.  254)  on  changing  point  of  diversion  of  water. 

Distinguished  in  Cloves  v.  Middlebury  Electric  Co.  80  Vt.  121,  11  L.R.A.  (X.S.) 
699,  66  Atl.  1039.  holding  reciprocal  prescriptive  rights  in  an  artificial  stream  do 
not  arise  where  contract  negatives  the  adverse  character  of  the  right. 

Disapproved  in  Kray  v.  Muggli.  77  Minn.  235,  45  L.  R.  A.  221,  79  X.  W.  964, 
holding  that  riparian   owners   acquire  no  reciprocal   prescriptive  right  to  have 
dam  maintained  for  their  benefit. 
Rig-lit  to  restore  stream   to   natnral  bed. 

Cited  in  Morton  v.  Oregon  Short  Line  R.  Co.  48  Or.  448,  7  L.R.A. (X.S.) 
348,  120  Am.  St.  Rep.  827.  87  Pac.  151.  holding  a  land  owner  may  restore  water 
to  its  natural  bed  where  a  sudden  freshet  causes  it  to  form  new  channel,  if  he 
acts  within  a  reasonable  time:  Beidler  v.  Sanitarv  Dist.  211  111.  635,  67  L.R.A.. 


6  L.R.A.  349]  L.  R.  A.  CASES  AS  AUTHORITIES.  1070 

837,  71  N.  E.   1118,  holding  where   owner  diverts  water   from  natural   channel 
and  enjoys  it   in  the  new   channel   beyond  the   statutory   period   he   acquires   a 
right  to  its  continuance  in  such  new  channel. 
\:i  t  ur«-  of  possession  to  support  adverse   •water   ri^lii. 

Cited  in  Rickels  v.  Log-Owners'  Booming  Co.  139  Mich.  118,  102  X.  W.  652, 
holding  claimant  must  show  an  exclusive  enjoyment  of  the  water,  adverse  to  the 
right  of  the  defendant,  and  without  interruption,  for  the  statutory  period. 

6  L.  R.  A.  353,  KXOX'S  APPEAL,  131  Pa.  220,  17  Am.  St.  Rep.  798,  18  Atl.  1021. 
What  constitutes  a  frill. 

Cited  in  Gaston's  Estate,  188  Pa.  378,  68  Am.  St.  Rep.  874,  41  Atl.  529,  holding 
signed  writing  "it  is  my  wish,"  followed  by  sufficiently  definite  directions,  a 
will;  Tozer  v.  Jackson,  164  Pa.  384,  35  W.  N.  C.  268,  30  Atl.  400,  holding  un- 
sealed envelope  with  a  signed  paper  inclosed,  stating  that  writer  gives  certain 
property  to  person  named  on  envelope,  valid  will ;  Harrison's  Estate,  196  Pa. 
578,  46  Atl.  888,  holding  signed  indorsement  on  unsealed  envelope  directing  sale 
of  inclosed  securities  after  indorser's  death,  for  specified  persons,  valid  codicil ; 
Scott's  Estate,  147  Pa.  100,  29  W.  X.  C.  180,  30  Am.  St.  Rep.  713,  23  Atl.  212, 
holding  letter  with  directions  for  drawing  will,  executed  by  testator  and  wit- 
nesses, valid  as  will ;  Funston's  Estate,  24  Pa.  Co.  Ct.  139,  holding  unsigned 
paper,  making  various  bequests,  headed  "My  will,  S.  —  F.  — ,"  not  valid  will ; 
McGettigan  v.  Carr,  13  Lane.  L.  Rev.  77,  holding  paper  in  form  of  letter,  dis- 
closing writer's  intention  as  to  disposition  of  property,  a  valid  will;  Xoyes  v. 
"Gerard,  40  Mont.  197,  26  L.R.A.(X.S.)  1147,  105  Pac.  1017,  holding  the  statu- 
tory requirement  that  a  holographic  will  must  be  entirely  written,  dated  and 
signed  by  the  testator  himself  must  be  strictly  complied  with;  Xoyes  v.  Gerard, 
40  Mont.  243,  106  Pac.  355  (dissenting  opinion),  on  validity  of  improperly 
executed  holographic  will:  Re  Zug,  57  Pittsb.  L.  J.  X.  S.  178,  holding  that  letter 
by  testator  to  wife  saying  that  expected  heir  did  not  change  his  will  is  valid 
<-odicile;  Greer's  Estate,  21  Montg.  Co.  L.  Rep.  29,  holding  that  paper  directing 
executor  to  pay  out  of  estate  certain  sum  to  named  person  and  signed  by  testator 
is  valid  codicil. 

Cited  in  footnotes  to  Orth  v.  Orth,  32  L.  R.  A.  298,  which  holds  no  interest 
created  by  advice  and  expression  of  hope  in  letter  to  testator's  wife  as  to  what 
she  will  do  with  property  devised  to  her ;  Jewell  v.  Louisville  Trust  Co.  53 
L.  R.  A.  377,  which  denies  creation  of  precatory  trust  by  will  of  merchant  ex- 
pressing desire  for  retention,  on  liberal  terms,  of  specified  person  in  employ  of 
firm  of  which  testator  a  partner;  Morgan  v.  Halsey,  36  L.  R.  A.  716,  which  holds 
power  of  appointment  of  property  to  testatrix's  daughter  in  any  manner  she 
may  deem  proper  limited  by  subsequent  clauses  of  will ;  Williams  v.  Baptist 
Church,  54  L.  R.  A.  427.  which  holds  absolute  gift,  not  trust,  created  by  bequest 
to  church  and  "suggesting"  as  to  application. 

Cited  in  notes    (7  L.  R.  A.  520)    as  to  effect  of  precatory  words  upon  estate 
granted;    (7  L.  R.  A.  394)    as  to  precatory  words  in  will;    (13  L.  R.  A.  563)    as 
to  effect   of   precatory   words    in   will;    (104   Am.   St.   Rep.   24,   26,   30,   32)    on 
holographic  wills. 
Sufficiency   of   signature    to    instrument. 

Cited  in  Plate's  Estate,  148  Pa.  60,  29  W.  X.  C.  562,  33  Am.  St.  Rep.  805,  23 
Atl.  1038,  Reversing  8  Lane.  L.  Rev.  212,  9  Pa.  Co.  Ct.  651,  28  W.  X.  C.  167, 
holding  proof  that  testator  commenced  to  sign  codicil,  made  stroke,  and  said 
"I  cannot  sign  now,"  conclusive  of  no  signature;  Seventh  Street  Colored  M.  E. 
Church  v.  Campbell,  48  La.  Ann.  1546,  21  So.  184,  holding  statute  that  incorpo- 


1071  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  359 

rators  "shall  prepare  and  sign"  articles  not  require  signature  of  names;  United 
States  Fidelity  &  G.  Co.  v.  Siegmann,  87  Minn.  178,  91  X.  W.  47.3,  denying 
liability,  as  between  parties,  of  person  intending  to  sign  bond  as  witness,  placing 
name  under  obligors;  National  Union  Bank  v.  Shearer,  225  Pa.  475,  74  Atl.  351. 
17  A.  &  E.  Ann.  Cas.  664,  holding  signature  to  warehouse  receipts  sufficient 
where  name  was  stamped  with  a  rubber  stamp  and  authenticated  by  writing  the 
initial  letter  ilS"  of  name;  Swire's  Estate,  225  Pa.  192,  73  Atl.  1110,  holding  the 
statute  requires  that  the  signature  to  every  will  shall  be  at  the  "end  thereof;" 
Will  ing's  Estate.  30  Pa.  Co.  Ct.  564,  13  Pa.  Dist.  R.  785,  holding  letter  of  in- 
structions to  attorney  and  copy  with  indorsement  on  envelope  by  testator  showing 
plainly  the  intention  of  testator  to  have  same  embodied  as  codicil  to  will  should 
be  entitled  to  probate  as  such;  Re  Simcox,  39  Pittsb.  L.  J.  N.  S.  78,  holding 
initial  of  last  name  sufficient  signature. 

Cited  in  footnotes  to  Re  Conway,  11  L.  R.  A.  796,  which  holds  reference  before 
signature  on  face  of  will  to  items  on  back  insufficient;  Re  Booth,  12  L.  R.  A.  452, 
which  holds  holographic  will  containing  maker's  name  at  beginning  only,  insuffi- 
ciently executed. 

Cited  in  note  (8  L.  R.  A.  823)  as  to  subscription  to  will. 

Distinguished  in  Re  Jacoby,  190  Pa.  409,  44  \\  .  X.  C.  29,  42  Atl.  1026,  holding 
box   inscribed   with   owner's   signed   direction   to  deliver   to   attorney   in   case   of 
death,  and  containing  envelopes  inscribed,  without  signature,  "This  to  go  to" — 
not  a  will. 
Parol  evidence  to  show  character  of  writing. 

Cited  in  Clay  v.  Layton,  134  Mich.  342,  96  X.  W.  458,  holding  where  papers 
plainly  provide  in  terms  for  a  present  transfer  of  property,  parol  evidence  is 
inadmissible  to  show  they  were  testamentary  in  character. 

Distinguished  in  Little's  Estate,   36  Pa.   Co.   Ct.  379,  57   Pittsb.  L.  J.  N.   S. 
98,   holding  where   large   envelope   addressed   Miss   M.   L.   Marquis,   contained   a 
email  envelope   containing  U.  S.  bonds  with  address  "dear  May,"  and  without 
date,  they  were  not  entitled  to  probate  as  codicil  to  will. 
Certainty   of   trust   property. 

Cited  in  Smullin  v.  Wharton.  73  Xeb.  683,  103  N.  W.  288,  holding  whether  the 
trust  be  express  or  constructive  the  property  upon  which  the  trust  is  to  operate 
must  be  ascertained. 

6  L.  R.  A.  359,  STATE  v.  FIRE  CREEK  COAL  &  COKE  CO.  33  W.  Va.   188, 

25  Am.  St.  Rep.  891,  10  S.  E.  288. 
Freedom  to  contract  and  cinss  legislation. 

Cited  in  State  v.  Loomis,  115  Mo.  318,  21  L.  R.  A.  805,  22  S.  W.  350,  Re- 
versing decision  in  department.  21  L.  R.  A.  792,  holding  act  prohibiting  pay- 
ment of  wages  in  scrip  not  redeemable  at  face  value  in  cash  at  option  of  bidder, 
unconstitutional:  State  v.  Peel  Splint  Coal  Co.  36  W.  Va.  857.  17  L.  R.  A.  403.  15 
S.  E.  1000  (dissenting  opinion),  majority  holding  act  prohibiting  employers  pay- 
ing employees  in  scrip  not  redeemable  in  money,  constitutional ;  People  ex  rel. 
Rodgers  v.  Coler,  166  X.  Y.  18.  52  L.  R.  A.  822.  82  Am.  St  Rep.  605,  59  X.  E. 
716.  holding  unconstitutional  statute  requiring  payment  of  prevailing  rate  of 
\\a:_r<-<  in  city  contract  work;  Low  v.  Rees  Printing  Co.  41  Xeb.  141,  24  L.  R.  A. 
708,  43  Am.  St.  Rep.  670,  59  X*.  W.  362,  holding  act  declaring  eight  hours  a  day's 
labor,  unconstitutional:  Republic  Iron  &  Steel  Co.  v.  State.  160  Ind.  391,  62 
L.  R.  A.  144,  66  X.  E.  1005.  holding  statute  requiring  weekly  payment  of  wages 
unconstitutional;  S.  A.  &  A.  P.  R.  Co.  v.  Wilson.  4  Tex.  App.  Civ.  Cas.  (Willson) 
p.  574,  holding  act  imposing  penalty  on  railroads  for  not  paying  employees 


6  L.R.A.  359]  L.  R.  A.  CASES  AS  AUTHORITIES.  1072 

within  prescribed  time  unconstitutional ;  Leep  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  58 
Ark.  407,  23  L.  R,  A.  270,  41  Am.  St.  Rep.  109,  25  S.  W.  75,  holding  statute 
requiring  corporation  to  pay  entire  wages  to  date  of  discharge  of  employee,  re- 
gardless of  employer's  damage,  void;  Dixon  v.  Poe,  159  Ind.  497,  60  L.R.A.  310. 
95  Am.  St.  Rep.  309,  65  X.  E.  518,  holding  act  requiring  merchants  issuing  store 
tokens  for  wages  assigned  by  coal  miners,  to  redeem  in  money,  invalid  class  leg- 
islation; Johnson  v.  Goodyear  Min.  Co.  127  Cal.  14,  47  L.R.A.  342,  78  Am.  St. 
Rep.  17,  59  Pac.  304,  holding  act  giving  employees  lien  on  property  of  corporation 
failing  to  pay  wages  monthly,  invalid;  Frorer  v.  People,  141  111.  182,  16  L.R.A. 
496,  31  X.  E.  395,  holding  act  prohibiting  mine  owners  and  manufacturers  from 
keeping  "truck  stores"  unconstitutional;  Com.  v.  Brown,  43  W.  N.  C.  75,  8  Pa- 
Super.  Ct.  355,  declaring  act  requiring  weighing  of  coal  before  screening,  uncon- 
stitutional; State  v.  Wilson,  7  Kan.  App.  446,  53  Pac.  371,  holding  act  requiring- 
weighing  of  coal  before  screening,  constitutional ;  Jordon  v.  State,  51  Tex.  Grim. 
Rep.  534,  11  L.R.A. (N.S.)  608,  103  S.  W.  633,  14  A.  &  E.  Ann.  Cas.  616,  hold- 
ing the  legislature  has  no  power  to  prevent  the  making  of  contracts  between 
workmen  and  employer  nor  to  interfere  with  the  freedom  of  contract  between 
them;  State  v.  Missouri  Tie  &  Lumber  Co.  181  Mo.  555,  65  L.R.A.  588,  103  Am. 
St.  Rep.  614,  80  S.  W.  933,  2  A.  &  E.  Ann.  Cas.  119,  holding  unconstitutional 
a  statute  making  it  a  misdemeanor  for  any  one,  in  payment  of  laborers,  to  give 
in  evidence  of  indebtedness,  any  note,  check,  etc.,  unless  such  as  be  negotiable  and' 
redeemable  in  money;  Coal  &  Coke  R.  Co.  v.  Conley,  67  W.  Va.  211,  67  S.  E.  613 
(dissenting  opinion),  on  constitutionality  of  statute  fixing  railroad  rates  in 
accordance  with  certain  classification;  American  Surety  Co.  v.  Shallenberger, 
183  Fed.  642,  holding  that  statute  fixing  charges  of  surety  companies  and  pro- 
viding penalty  for  violation  is  unconstitutional. 

Cited  in  footnotes  to  Hancock  v.  Yaden,  6  L.  R.  A.  576,  which  holds  statute 
prohibiting  employees  of  mining  and  manufacturing  companies  contracting  to 
receive  wages  in  other  than  money  not  unjust  discrimination;  Braceville  Coal 
Co.  v.  People,  22  L.  R.  A.  340,  which  holds  unconstitutional,  statute  requiring 
weekly  payment  of  wages  by  specified  corporations. 

Cited  in  notes  (25  Am.  St.  Rep.  882)  on  14th  amendment  as  to  special  privi- 
leges, burdens,  and  restrictions;  (37  Am.  St.  Rep.  213)  on  statute  regulating 
relations  of  master  and  servant;  (62  Am.  St.  Rep.  178,  179)  on  protection  of 
corporations  from  special  and  hostile  legislation;  (78  Am.  St.  Rep.  244)  on  acts 
which  legislature  may  declare  criminal;  (122  Am.  St.  Rep.  910)  on  consti- 
tutionality of  statutes  regulating  time  and  method  of  payment  of  wages. 
As  to  attorney's  fees. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  165,  41  L.  ed.  672,  17  Sup. 
Ct.  Rep.  255,  holding  act  permitting  successful  claimants  against  railroads  to 
recover  attorney's  fees  invalid;  Hocking  Valley  Coal  Co.  v.  Rosser,  53  Ohio  St. 
25,  29  L.  R.  A.  390,  53  Am.  St.  Rep.  622,  41  N.  E.  263,  holding  statute  allowing 
plaintiff  attorney's  fees  in  suits  for  wages  unconstitutional;  Vogel  v.  Pekoe,  157 
111.  349,  30  L.  R.  A.  495,  42  N.  E.  386  (dissenting  opinion),  majority  holding 
statute  allowing  plaintiff  attorney's  fees  in  suits  for  wages  constitutional ; 
Davidson  v.  Jennings,  27  Colo.  195,  48  L.  R.  A.  343,  83  Am.  St.  Rep.  49,  60 
Pac.  354,  holding  portion  of  act  permitting  plaintiff  in  mechanic's  lien  foreclosure 
to  tax  attorney's  fee  unconstitutional ;  Los  Angeles  Gold  Mine  Co.  v.  Campbell, 
13  Colo.  App.  7,  56  Pac.  246,  following  as  binding,  authority  of  United  States 
Supreme  Court  holding  taxing  of  attorney's  fee  by  plaintiff  in  mechanic's  lien 
cases  unconstitutional;  Chicago.  R.  .1.  &  P.  R.  Co.  v.  Mashore,  21  Okla.  286. 
96  Pac.  630,  17  A.  &  E.  Ann.  Cas.  277,  holding  a  legislative  requirement  that 


1073  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  363 

defeated  party  shall  pay  attorney's  fees  in  actions  for  personal  services  is  con- 
stitutional. 

6  L.  R.  A.  360,  AIKEN  v.  FRANKLIN,  42  Minn.  91,  43  N.  W.  839. 
Covenants  running-  with   land. 

Cited  in  footnotes  to  Mott  v.  Oppenheimer,  17  L.  R.  A.  409.  which  construes 
as  running  with  the  land,  agreement  for  party  wall  expressly  declared  to  run  with 
land:  Mygatt  v.  Coe,  11  L.  R.  A.  646,  which  holds  covenants  of  warranty  and 
quiet  enjoyment  by  owner  of  fee  and  her  husband  do  not  run  with  land  as  against 
husband;  Bald  Eagle  Valley  R,  Co.  v.  Nittany  Valley  R.  Co.  29  L.  R.  A.  423, 
which  holds  intention  of  parties  controlling  in  determining  whether  covenant 
runs  with  land. 
Breach  of  covenant  of  seisin. 

Cited  in  footnotes  to  Hodges  v.  Wilkinson,  17  L.  R.  A.  545,  which  holds  action 
for  breach  of  implied  warranty  of  title  of  personalty  sold,  after  its  taking  by 
third  person,  not  premature;  Wiggins  v.  Fender.  61  L.  R.  A.  772,  which  holds 
assignee  entitled  to  benefit  of  covenant  of  warranty  not  naming  him,  if  assigns 
named  in  habendum  clause  of  deed. 

6  L.  R.  A.  362,  MARTIN  v.  PALMER,  42  Minn.  176,  43  N.  W.  966. 
LiOgr-lien    law;    construction. 

Cited  in  Breault  v.  Archambault,  64  Minn.  423,  58  Am.  St.  Rep.  545,  67  N.  W. 
348,  holding  camp  cook,  assistant,  and  camp  blacksmith  entitled  to  benefits  of 
log-lien  law;  Breault  v.  Archambault,  64  Minn.  423,  58  Am.  St.  Rep.  545.  67 
N.  W.  348,  holding  party  supplying  teams  and  drivers  under  entire  contract 
entitled  to  lien,  though  performing  no  manual  labor  herself;  Klondike  Lumber 
Co.  v.  Williams,  71  Ark.  338,  75  S.  W.  854,  holding  that  laborer's  lien  covers 
use  of  wagon  and  team;  Proux  v.  Stetson  &  P.  Mill  Co.  6  Wash.  481,  33  Pac. 
1167,  holding  lien  for  labor  under  entire  contract  enforceable  against  only  part 
of  logs;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Love,  74  Ark.  535,  86  S.  W.  395,  holding 
the  services  of  a  foreman  who  superintends  and  directs  laborers  in  the  work  of 
construction  or  repair  of  a  railroad  falls  within  terms  of  statute  giving  the 
"laborer  or  other  person  who  shall  perform  work  or  labor"  a  lien  for  his  serv- 
ices; Paquet  v.  New  York  Trust  Co.  Rap.  Ind.  Quebec.  15  B.  R.  183,  sustain- 
ing the  right  of  one  carting  logs  for  an  electric  railroad  to  a  lien  not  only  for 
his  labor,  but  also  for  that  of  his  horses. 

Distinguished  in  Mabie  v.  Sines,  92  Mich.  547,  52  X.'W.  1007,  holding  party 
selling  team  to  be  used  in  lumber  yard,  under  contract  providing  for  monthly 
rental  in  default  of  stipulated  payments  of  purchase  price,  not  entitled  to  lien. 

6  L.  R.  A.  363,  JOHN  W.  LOVELL  CO.  v.  HOUGHTON,  116  N.  Y.  520,  22  N.  E. 

1066. 
Privileged    communications. 

Cited  in  Sommers  v.  Christiano.  21  Misc.  177,  47  N.  Y.  Supp.  115,  holding 
affidavit  in  support  of  motion  in  legal  proceeding  prima  facie  privileged;  McCarty 
v.  Lambley,  20  App.  Div.  268,  46  N.  Y.  Supp.  792,  holding  master's  charge  of 
employee  with  theft  privileged,  where  informed  by  subordinates  that  such  em- 
ployee had  not  only  stolen,  but  had  admitted  guilt;  Bowsky  v.  Cimiotti  Unhair- 
ing  Co.  72  App.  Div.  175,  76  N.  Y.  Supp.  465,  holding  publication  warning 
traders  against  using  or  employing  those  \vho  used  machines  infringing  patents, 
privileged:  Weber  v.  Lane,  90  Mo.  App.  82,  71  S.  W.  1099,  holding  report  of 
L.R.A.  An.  Vol.  L— 68. 


6  L.R.A.  363]  L.  R.  A.  CASES  AS  AUTHORITIES.  1074 

committee  of  board  of  aldermen  investigating  charges  against  dramshop  keeper 
privileged. 

Cited  in  footnotes  to  Rothholz  v.  Dunkle,  13  L.  R.  A.  655,  which  holds  com- 
munication by  bank  cashier  to  stockholder  as  to  solvency  of  surety  on  bond  to 
bank  privileged;  Hemmens  v.  Nelson,  20  L.  R.  A.  441,  which  holds  statement  by 
principal  of  deaf  mute  institute,  to  executive  committee,  as  to  improper  acts  of 
department  superintendent  privileged;  Nissen  v.  Cramer,  6  L.  R.  A.  780,  which 
holds  relevant  words  spoken  by  party  to  action  during  trial  privileged;  Moore 
v.  Manufacturers'  Nat.  Bank,  11  L.  R.  A.  753,  which  holds  reference,  in  state- 
ment to  sureties  of  cashier,  to  items  drawn  by  "collusion  with  teller,"  libelous 
as  to  teller;  Conroy  v.  Pittsburgh  Times,  11  L.  R.  A.  725,  which  holds  privileged 
communication  one  properly  made  on  proper  occasion  from  proper  motive  on 
probable  cause. 

Cited  in  note  (9  L.  R.  A.  621)   on  what  constitutes  libel  and  slander. 
Question   for. court. 

Cited  in  Hart  v.  Sun  Printing  &  Pub.  Asso.  79  Hun,  361,  29  N.  Y.  Supp.  434, 
holding  character  of  admitted  facts,  published  under  claim  of  privilege,  question 
of  law  for  court;  Miodownick  v.  Fischman,  134  App.  Div.  247,  118  N.  Y.  Supp. 
870,  holding  it  only  where  facts  are  not  controverted  that  a  trial  court  is 
privileged  to  determine  that  a  writing  containing  the  libel  is  a  privileged  com- 
munication; Ashcroft  v.  Hammond,  197  N.  W.  494,  90  N.  E.  Ill",  holding 
the  question  whether  telegram  was  privileged  for  the  court  where  circumstances 
were  not  in  dispute. 
Question  for  jury. 

Cited  in  Warner  v.  Press  Pub.  Co.  132  N.  Y.  183,  30  N.  E.  393,  holding  exist- 
ence of  facts  published  under  claim  of  privilege,  for  jury. 
Inference  of  malice. 

Cited  in  footnotes  to  Pollasky  v.  Michener,  9  L.  R.  A.  102,  which  authorizes 
inference  of  malice  from  sending  false  statement  as  to  mortgage,  advising  caution, 
to  patrons  of  commercial  agency;  Street  v.  Johnson,  14  L.  R.  A.  203,  which  holds 
seller  of  presumed  to  know  that  it  contains  libel. 

Cited  in  note  (13  L.  R.  A.  708)  on  slander  of  title. 
Actionable  assertions  of  ownership  of  property. 

Cited  in  Brown  v.  Pillow,  98  C.  C.  A.  579,  174  Fed.  970,  holding,  in  absence 
of  malice,  one  who,  by  reason  of  assertion  of  ownership  of  a  dredge,  causes  delay 
in  work  and  desertion  of  laborers,  cannot  be  held  for  loss  resulting  from  such 
interruption  of  business. 

6  L.  R.  A.  366,  WILLIAMS  v.  GUILE,  117  N.  Y.  343,  22  N.  E.  1071. 
Gifts   cansa   mortis. 

Cited  in  Ridden  v.  Thrall,  125  N.  Y.  579,  21  Am.  St.  Rep.  758,  11  L.  R.  A.  688, 
26  N.  E.  627,  holding  gift  of  box  containing  bank  books  in  event  donor  did  not 
survive  pending  surgical  operation,  valid  gift  causa  mortis,  though  operation  suc- 
cessful and  donor  died  in  hospital  from  another  disease  to  which  subject  before 
operation;  Hogan  v.  Sullivan,  114  Iowa,  460,  87  N.  W.  447,  holding  delivery  of 
memorandum  on  deathbed,  to  son-in-law,  disposing  of  bank  deposit,  certificate  for 
which  taken  in  his  name  two  years  prior,  valid  gift  causa  mortis  in  favor  of 
beneficiaries  named  in  memorandum;  Caylor  v.  Caylor,  22  Ind.  App.  674,  72  Am. 
St.  Rep.  331,  52  N.  E.  465,  holding  deathbed  gift  by  wife  of  all  her  property  of 
which  husband  in  possession,  to  absent  nephew,  valid;  Callanan  v.  Clement,  18 
Misc.  625,  42  N.  Y.  Supp.  514,  holding  delivery  of  bank  book  to  donee  on  deathbod 
of  donor,  with  subsequent  directions  to  donee  to  let  former  custodian  keep  same 


3075  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  366 

until  after  donor's  death,  valid  gift;  Re  Crosby,  46  X.  Y.  S.  R.  444,  1  Power,  30, 
20  X.  Y.  Supp.  63,  holding  delivery  of  promissory  note  to  attending  niece  to 
hold  for  maker  sufficient  to  validate  gift;  Leyson  v.  Davis,  17  Mont.  274,  31 
L.  R.  A.  447,  42  Pac.  775,  holding  gift  of  bank  stock  accompanied  by  delivery,  to 
donee  four  months  prior  to  donor's  death  and  on  eve  of  journey  to  recuperate, 
valid,  though  donor  returned  before  death,  and  during  absence  stock  was  voted 
according  to  his  direction;  Larrabee  v.  Hascall,  88  Me.  520,  51  Am.  St.  Rep.  440. 
34  Atl.  408,  holding  that  lapse  of  one  month  and  a  half  between  gift  and  death 
of  testator  does  not  invalidate  same  as  gift  causa  mortis;  Kirk  v.  McCusker, 
3  Misc.  284,  22  X.  Y.  Supp.  780,  in  concurring  opinion,  in  support  of  dissent 
from  statement  that  gift  of  bank  deposit  was  revoked  by  subsequent  appropria- 
tion of  portion  of  account  to  donor's  personal  use;  Telford  v.  Patton,  144  111. 
627,  33  X.  E.  1119,  holding  sum  deposited  in  name  of  third  party  eight  months 
before  death,  without  delivery  of  certificate  to  third  party,  not  valid  gift; 
Hatcher  v.  Buford,  60  Ark.  173,  27  L.  R.  A.  508,  29  S.  W.  641,  holding  indorse- 
ment of  donee's  note  to  his  mother  while  donor  was  in  expectancy  of  death,  but 
still  able  actively  to  tend  to  business,  gift  inter  vivos;  Blazo  v.  Cochrane,  71  X.  H. 
587,  53  Atl.  1026,  and  Bean  v.  Bean,  71  X'.  H.  542,  53  Atl.  907,  holding  gift 
causa  mortis  not  absolute,  though  no  condition  be  expressed;  Bray  v.  O'Rourke, 
89  App.  Div.  402,  85  X.  Y.  Supp.  907,  holding  that  gift  inter  vivos  may  be 
based  on  delivery  to  third  person  for  donee's  benefit;  Opitz  v.  Karel,  118  Wis. 
535,  62  L.  R.  A.  985,  99  Am.  St.  Rep.  1004,  95  X.  W.  948,  holding  that  insured 
may  make  valid  gift  by  delivery  of  insurance  policy;  Devol  v.  Dye,  123  Ind.  328, 
7  L.  R.  A.  442,  24  X*.  E.  246,  holding  delivery  of  key  of  private  box  to  bank- 
cashier,  with  instructions  to  set  aside  and  mark  certain  sums  with  donees'  names, 
valid;  O'Xeil  v.  O'Xeil,  43  Mont.  512,  117  Pac.  889,  Ann.  Gas.  1912C,  268, 
holding  that  to  render  gift  causa  mortis  effective  it  must  have  been  made  in 
contemplation  of  death  and  delivery  must  have  been  made  with  intent  that 
title  should  vest  only  in  case  of  death;  Dickinson  v.  Hoes,  33  X.  Y*.  Civ.  Proc. 
Rep.  104,  84  X*.  Y".  Supp.  152,  holding  a  gift  causa  mortis  is  an  apparent  asset 
in  the  hands  of  the  administrator. 

Cited  in  footnotes  to  Peck  v.  Rees,  13  L.  R.  A.  714,  which  holds  delivery  of 
deed  by  donor  to  own  agent  insufficient;  Gammon  Theological  Seminary  v. 
Robbins,  12  L.  R.  A.  506,  which  holds  instrument  declaring  that  holder  gives 
note,  which  he  retains,  insufficient  as  gift. 

Cited  in  notes  (7  L.R.A.  439;  11  L.R.A.  684;  99  Am.  St.  Rep.  894,  895,  906) 
on  gifts  causa  mortis;  (18  L.R.A.  171)  on  sufficiency  of  constructive  delivery 
to  sustain  gift  causa  mortis. 

Criticized  in  Zeller  v.  Jordan,  105  Cal.  147,  38  Pac.  640.  holding  gift  of  check, 
unaccompanied  by  deposit  book,  by  wife  while  well  and  on  understanding  that 
not  to  be  used  till  death,  not  valid. 

Disapproved   in   Bieber   v.   Boeckmann,   70  Mo.   App.   508,  holding  delivery  of 
money   on   deathbed   to   party,   with   directions   to   divide   same   between   certain 
relatives  in  event  of  death,  but  to  return  it  in  case  of  recovery,  not  valid. 
Time    when    Rift    takes   effect. 

Cited  in  Callanan  v.  Clement,  18  Misc.  625,  42  X'.  Y.  Supp.  514,  holding  that 
gift  of  bank  deposit  relates  back,  on  death  of  donor,  to  date  of  delivery  of  bank 
book  to  agent  for  donee. 
Direction    of   verdict. 

Cited  in  Decker  v.  Sexton,  19  Misc.  68,  43  X.  Y.  Supp.  167,  holding  verdict 
properly  directed  on  question  of  waiver,  where  evidence  of  landlord  and  tenant 
conclusive  against  same:  Hopkins  v.  Xashville.  C.  &  St.  L.  R.  Co.  96  Tenn.  435. 
32  L.  R.  A.  302,  34  S.  \V.  1029,  holding  demurrer  to  evidence  permissible  in  Ten- 


6  LJLA.  366]  L.  R.  A.  CASES  AS  AUTHORITIES.  1076 

nessee  without  violating  constitutional  guaranty  of  trial  by  jury  and  provision 
direction  of  verdict. 


6  L.  R.  A.  369.  MAXHATTAX  CIOAK  <fc  SOT  CO.  v.  DODGE.  120  Ind.  1,  IS 

Am.  St.  Rep.  29S.  21  X.  EL  344. 
»•*••*  mt  «r*mfl«eBti*l  relati»B. 

Cited  in  Hughes  r.  Wiltson,  128  Ind.  494.  26  X.  EL  50.  holding  attorney  trustee 
of  profits  received  on  purchase  and  sale  of  land  in  fraud  of  client's  estate:  Re 
Dvrightt.  61  App.  Div.  3(6:2.  70  X.  Y.  Supp.  563,  holding  attorney  of  assignee  for 
benefit  of  creditors  entitled  to  receive  out  of  assigned  estate  only  amount  paid 
by  him  for  claims  against  estate;  Rosenthal  v.  MeGraw,  71  C.  C.  A.  277,  138 
Fed.  723,  holding  a  receiver  liable  for  interest  on  the  owner's  shares  of  earnings 
withheld,  it  being  his  duty  to  torn  over  the  sums  of  money  as  received. 

Cited  in  footnotes  to  Harrison  v.  Mulvane,  54  LL  R.  A.  405.  which  holds  one 
charged  with  selling  corporate  stock  to  pay  encumbrances,  one  of  which  he  owns. 
not  forbidden,  as  trustee,  to  bar  prior  liens  to  protect  own  interests:  Frazier  v. 
Jeakins,  57  L.  R-  A.  575.  which  holds  guardian's  sale  to  her  husband  void- 

Cited  in  notes  (9  L.  R.  A.  793)  on  purchase  by  trustee  inuring  to  benefit  of 
cesfiri  qme  trust;  f  12  L.  R-  A.  396))  on  right  of  agent  to  become  purchaser  of 
subject  of  agency:  (13  L.  R.  A.  490)  on  personal  interest  conflicting  with 
fiduciary  duty;  (11  L.  R.  A.  328}  on  right  of  creditors  of  insolvent  to  dividends. 

6  L  R.  A.  371,  HART  v.  BTJRCH,  130  HL  426,  32  X.  EL  831. 


Cited  in  Heisen  v.  Heisen.  145  HL  664,  21  L  R.  A.  437.  34  X.  EL  597,  holding 
husband's  statutory  dower  barred  pro  tamto  by  tat-ing  lease  for  term  of  years 
from  wife's  executors:  Thompson  v.  Harsh,  61  HL  App.  271.  holding  that  cred- 
itor may  maintain  suit  to  secure  assignment  of  judgment  debtor's  right  of  dower 
and  application  to  judgment;  Card  v.  Pudney,  42  App.  Div.  408,  59  X.  T.  Supp. 
278,  holding  widow  of  tenant  in  common  not  entitled  to  sale  of  cotenant's  interest 
in  piupeily  in  suit  to  apportion  dower  in  husband's  interest;  Grnbbs  v.  Leyen- 
deeker.  153  Ind.  352,  53  X.  EL  940.  holding  daughter  barred  after  lapse  of  statu- 
tory period,  to  claim  share  of  estate  as  against  purchasers  from  sons  conveying 
full  title  under  transfer  from  mother  of  nnassigned  doyer  rights. 

Cited  in  note  (39  Am.  St.  Rep.  25,  30)  on  assignment  of  dower. 


Cited  in  Fletcher  v.  Shepherd,  174  HL  271,  51  X.  EL  212,  holding  that  release 
of  dower  by  widow  to  daughter  in  belief  that  latter  owned  fee  operates  as  to 
actual  interest  of  daughter,  and  does  not  bar  claim  to  dower  in  remainder:  Wil- 
liams v.  Merriam,  72  Kan.  322,  S3  Pae.  976,  holding  in  absence  of  statute,  the 
dower  to  land  could  not  be  released  to  any  one  not  the  owner,  or  one  so  re- 
lated to  the  fee  that  the  release  would  unite  it  with  the  fee. 


Cited  in  Jennings  v.  Dunphy,  174  HL  89,  50  X.  EL  1045,  holding  conservator's 
sale  subject  to  court's  approval  may  be  set  aside,  although  price  fair,  where 
estate  materially  benefited  by  resale;  Davies  v.  Gibbs,  174  HL  277,  51  V.  E. 
220,  holding  confirmation  of  irregular  sale  in  vacation  conclusive  where  no  fraud 
or  mistake  shown  which  prevented  filing  of  exceptions  within  statutory  time; 
R?d"»i"HI  v.  Can,  226  HL  128,  80  X.  EL  708,  holding  the  mere  acceptance  of  a 
bid  at  a  judicial  sale  conveys  no  title:  Fanlds  v.  TOton,  112  C.  C,  A.  555,  192 
Fed.  298,  to  the  point  that  judicial  sale  under  decree  of  court  must  be  approved, 
and  confirmed  before  it  becomes  final  or  conveys  title. 


1077  K  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R^.  379 

6  L.  R.  A.  374,  MILLER  v.  MOORE,  83  Ga.  684,  20  Am.  St.  Rep.  329,  10  S.  E.  360. 

Implied     \\  ;i  rrii  ii  »  \  . 

Cited  in  Snowden  v.  Waterman,  105  Ga.  388.  31  S.  E.  110,  holding  implied 
warranty  of  merchantableness  not  waived  by  personal  examination  of  goods 
containing  latent  defect;  American  Grocery  Co.  v.  Brackett,  119  Ga,  490,  4G  S. 
7.  holding  bargain  and  sale  of  a  chattel  of  a  particular  description  imports  a 
warranty  that  the  article  sold  is  of  that  description;  Henderson  Elevator  Co.  v. 
North  Georgia  Mill.  Co.  126  Ga.  281,  55  S.  E.  50,  holding  an  agreement  for 
sale  of  "20,000  bushels  of  Xo.  2  white  corn,  bulk"  imports  a  warranty  as  to 
quality  as  well  as  variety;  De  Loach  Mill  Mfg.  Co.  v.  Tutweiler  Coal,  Coke  & 
Iron  Co.  2  Ga.  App.  499,  58  S.  E.  790,  holding  a  sale  of  iron  as  "Standard  Ala- 
bama Xo.  1  soft"  is  an  express  warranty  that  article  shall  be  equal  to  description. 

Cited  in  notes  (6  L.  R.  A.  392)  on  implied  warranty  on  sale  by  manufacturer; 
(15  L.R.A.  795)  on  effect  of  representing  things  sold  to  be  "good;"  (35  L.R.A. 
284)  on  warranty  on  sale  with  particular  description  of  kind  or  quality: 
(102  Am.  St.  Rep.  615)  on  implied  warranty  of  quality;  (23  Eng.  RuL  Caa.  464) 
on  implied  warranty  on  sale  of  goods  by  description. 
\\  ;t  i  ver  of  warranty-  as  to  latent  defect*  by  inspection. 

Cited  in  Jones  v.  Bloomgarden,  143  Mich.  335,  106  X.  W.  891,  holding  an  in- 
spection sufficient  in  law  is  not  conclusive  upon  the  rights  of  a  buyer  where 
there  are  latent  defects  afterwards  discovered;  Cook  v.  Finch,  117  Ga.  543,  44  S. 
E.  95,  holding  even  an  inspection,  will  not  deprive  the  purchaser  of  a  warranty 
as  to  latent  defects  which  could  not  have  been  discovered  by  the  exercise  of 
ordinary  prudence. 
Effect  of  acceptance. 

Cited  in  footnote  to  Ontario  Deciduous  Fruit  Growers'  Asso.  v.  Cutting  Fruit 
Packing  Co.  53  L.  R.  A.  681,  which  requires  buyer  to  pay  for  fruit  received  under 
contract,  knowing  full  amount  cannot  be  delivered. 

Cited  in  notes  (12  L.R.A.  399)  on  effect  of  acceptance  of  goods  under  contract 
of  sale:  (8  L.R.A.(X.S.)  1110)  on  notice  to  vendor  as  condition  of  right  to  refuse 
subsequent  after  breach  as  to  earlier  deliveries:  (35  LJl.A.(X.S.)  280)  on 
effect  of  acceptance  without  opportunity  to  make  practical  inspection;  (35 
L.R.A.iX.S.)  283)  on  effect  of  acceptance  after  inspection;  (38  L.R.A.(X.S.) 
543)  on  sale;  right  of  purchaser  of  goods  deliverable  in  instalments  to  rescind 
the  contract,  or  refuse  further  deliveries,  for  breach  as  to  quantity. 
Remedies  of  seller  for  breach  of  contract. 

Cited  in  Carolina  Portland  Cement  v.  Columbia  Improv.  Co.  3  Ga.  App.  487, 
60  S.  E.  279,  holding  the  statutory  remedies  do  not  exclude  a  remedy  different 
from  those  outlined. 
Knowledge  as  affecting:  force  of  local  custom. 

Cited  in  Hendrieks  v.  Middlebrooks  Co.  118  Ga.  137,  44  S.  E.  835,  holding  a 
mere  local  custom  or  business  usage  which  springs  up  in  a  particular  city  can- 
not be  claimed  as  part  of  contract  of  one  who  never  recognized  the  existence  of 
such  custom;  Bacon  Fruit  Co.  v.  Blessing.  122  Ga.  369,  50  S.  E.  139,  holding  a 
local  custom  of  brokers  charging  shippers  $10  per  car  for  goods  bought,  is 
not  binding  on  a  nonresident  shipping  in  absence  of  knowledge  on  his  part  an 
acceptance. 

6  L.  R.  A.  377,  GARRETSOX  v.  FERRALL.  78  Iowa,  166,  42  X.  W.  637. 

C  L.  R.  A.  379.  BIXXEY  v.  GLOBE  XAT.  BAXK.  150  Ma*-.  574.  23  X.  E.  380. 
Statutory    riulit-    of    feme   covert. 

Cited  in  Colonial  &  U.  S.  Mortg.  Co.  v.  Bradley,  4  S.  D.  162.  55  X.  W.  1108, 


6  L.R.A.  379]  L.  R.  A.  CASES  AS  AUTHORITIES.  1078 

holding  married  woman  liable  on  joint  proii'issory  note  given  in  payment  of 
husband's  individual  debt;  Foster  v.  Leach,  1GO  Mass.  420.  36  X.  E.  69,  holding 
acceptance  of  note  on  wife's  indorsement  sufficient  consideration  to  support  her 
contract  as  indorser;  Harmon  v.  Old  Colony  R,  Co.  165  Mass.  106,  30  L.  R.  A. 
660,  52  Am.  St.  Rep.  499,  42  X.  E.  505,  holding  earning  capacity  of  woman  as 
laborer  proper  element  of  damages;  Middleborough  Xat.  Bank  v.  Cole,  191  Mass. 
170,  77  X.  E.  781,  holding  wife  liable  on  accommodation  indorsement  of  firm  note 
for  husband. 

Cited  in  footnote  to  Kitchen  v.  Chapin,  57  L.  R..  A.  914,  which  holds  married 
woman  liable  on  her  guaranty  of  note  owned  by  her  and  payable  to  her  order. 

Cited  in  notes   ( 7  L.  R.  A.  641)   on  wife's  capacity  to  contract;    (19  L.  R.  A. 
226)  on  women  included  in  term  "persons." 
Estoppel. 

Cited  in  Prescott  Xat.  Bank  v.  Butler,  157  Mass.  550,  32  X.  E.  909,  holding 
invalidity  of  note  made  on  Sunday  not  matter  of  defense  in  action  by  purchaser 
against  indorser;  Wisdom  v.  Shanklin,  74  Mo.  App.  431,  holding  maker  of  nego- 
tiable note  estopped  to  deny  wife's  capacity  as  payee  to  indorse  same  to  pur- 
chaser for  value. 
Sufficiency  of  affidavit  in  insolvency  proceeding's. 

Cited  in  Clement  v.  Bullens,  159  Mass.  196,  34  N.  E.  173,  holding  affidavit  on 
information  and  belief  sufficient  to  support  petition  for  examination  of  insolvent. 
Review  of  proceedings  of  insolvency  court. 

Cited  in  Jaquith  v.  Fuller,  167  Mass.  128,  45  X.  E.  54,  denying  writ  of  pro- 
hibition against  insolvency  court,  where  error  correctable  by  appeal. 

6  L.  R.  A.  383,  HYLAXD  v.  HABICH,  150  Mass.  112,  15  Am.  St.  Rep.  174,  22 

N.  E.  765. 
Termination    of   suretyship. 

Cited  in  Valentine  v.  Donohoe-Kelly  Bkg.  Co.  133  Cal.  196,  65  Pac.  381,  holding 
estate  of  guarantor  of  bank  account  not  liable  for  overdraft  after  notice  to  bank 
of  guarantor's  death;  Manitowoc  County  v.  Truman,  91  Wis.  14.  64  X.  W.  307,- 
holding  sureties  on  bond  given  by  bank  to  secure  deposit  of  county  moneys  not 
discharged  by  renewal  of  deposit  contract;  Snattinger  v.  Topeka.  80  Kan.  347. 
102  Pac.  508,  holding  a  bond  given  by  a  bank  to  secure  public  deposits  was  a. 
continuing  security  where  it  might  at  any  time  have  been  terminated  by  notice. 

Cited  in  notes  (23  L.  R.  A.  709)  on  effect  on  contract  of  guaranty  of  death  of 
party  thereto;  (8  L.R.A.  381)  on  construction  of  contract;  (21  Eng.  Rul.  Cas. 
671;  (2  Brit.  Rul.  Cas.  944)  on  determination  of  liability  of  guarantor  or  surety 
by  his  death. 

Distinguished  in  Fewlass  v.  Keeshan,  32  C.  C.  A.  9,  60  U.  S.  App.  133,  88 
Fed.  574,  holding  surety  on  cost  bond  liable  for  costs  accruing  after  his  death. 

Disapproved  in  Gay  v.  Ward,  67  Conn.  156,  32  L.  R,  A.  820,  34  Atl.  1025, 
holding  death  of  guarantor  not  affect  continuing  guaranty  without  actual  notice 
to  guarantee. 

6  L.  R.  A.  384,  TRUMBLE  v.  TERRITORY,  3  Wyo.  280,  21  Pac.  1081. 
Presumption    of   malice. 

Cited  in  State  v.  Vaughan,  22  Xev.  301,  39  Pac.  733,  holding  malice  not  always 
presumed  where  intention  to  kill  exists;  Territory  v.  Lucero,  8  X.  M.  555,  46  Pac. 
18,  holding  no  implication  of  malice  from  mere  fact  of  killing;  State  v.  Gibson. 
43  Or.  189,  73  Pac.  333.  holding  conclusive  presumption  of  intent  to  murder 
from  use  of  deadly  weapon  not  arise  where  evidence  shows  circumstances  of 


1079  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  390 

justification;    Territory   v.  Gutierrez.   13  X.  M.   143,   79   Pac.   716,  holding  that 
malice  is  not  presumed  from  use  of  dangerous  weapon. 

Cited  in  note  (34  L.R.A.  (X.S.)   104)  on  presumption  as  to  distinctive  elements 
of  murder  in  first  degree  for  use  of  deadly  weapon. 
Burden  of  proof  of  excuse  or  justification  of  crime. 

Cited  in  State  v.  Pressler,  16  Wyo.  223,  92  Pac.  806,  15  A.  &  E.  Ann.  Cas.  93, 
holding  that  where  sanity  is  a  material  question  in  evidence  in  a  murder  trial  the 
burden  of  proof  is  still  on  the  prosecution,  to  establish  it. 
Degree  of  proof  of  matter  in   defense  or  justification  of  crime. 

Cited  in  Zipferian  v.  People,  33  Colo.  141,  79  Pac.  1018;  holding  that  it  is 
sufficient  to  sustain  a  plea  of  self  defense  if  defendant  raises  a  reasonable  doubt 
in  the  minds  of  the  jury  of  any  essential  element  of  the  charge;  State  v.  Haz- 
let,  16  X.  D.  436,  113  X.  \V.  374,  holding  that  accused  sufficiently  reports  the 
prima  facie  case  of  the  prosecution  by  establishing  a  reasonable  doubt  whether 
he  did  not  act  in  self  defense  and  it  was  error  to  require  a  preponderance. 

Cited  in  note  (19  L.R.A. (N.S.)  489)  on  applicability  of  rule  of  reasonable 
doubt  to  self-defense  in  homicide. 

6  L.  R.  A.  387,  STOXER  v.  RICE,  121  Ind.  51,  22  X.  E.  968. 
Riparian   owner  of  fractional  section  of  non-navigable  lake. 

Cited  in  John  Hilt  Lake  Ice  Co.  v.  Zahrt,  29  Ind.  App.  478,  62  N.  E.  509; 
Kean  v.  Calumet  Canal  &  Improv.  Co.  190  U.  S.  459,  47  L.  ed.  1137,  23  Sup.  Ct. 
Rep.  651,  Brophy  v.  Richeson,  137  Ind.  115,  36  X.  E.  424, —  holding  government 
grant  of  fractional  quarter,  the  remainder  of  which  covered  in  part  by  inland 
«on-navigable  lake,  includes  whole  quarter;  Tolleston  Club  v.  State,  141  Ind. 
207,  38  X.  E.  214,  holding  whole  sections  including  both  sides  of  meander  lines, 
within  list  of  swamp  lands  describing  same  as  "all  of  section,"  etc.;  Concord  Mfg. 
Co.  v.  Robertson,  66  X.  H.  28,  18  L.  R,  A.  694,  25  Atl.  718,  upholding  classifica- 
tion of  lakes  and  ponds  by  acreage;  Poynter  v.  Chipman.  8  Utah,  450,  32  Pac. 
690.  holding  that  grant  of  land  to  shore  of  inland  lake  confers  right  to  follow 
water  in  recession;  Johnson  v.  Hurst,  10  Idaho,  319,  77  Pac.  784,  holding  that 
patent  to  settler  abutting  on  line  which  purports  to  meander  navigable  stream 
extends  so  as  to  include  land  to  stream. 

Cited  in  note  (18  L.  R.  A.  696)  as  to  ownership  of  bed  of  lakes  and  ponds. 

Disapproved  in  Hardin  v.  Jordan,  140  U.  S.  398,  35  L.  ed.  439,  11  Sup.  Ct. 
Rep.  808,  and  Lamprey  v.  State,  52  Minn.  195,  18  L.  R,  A.  677,  38  Am.  St.  Rep. 
541.  .">3  X.  YV.  1139,  holding  grant  of  land  bounded  on  inland  non-navigable  lake 
includes  fee  to  center;  Lembeck  v.  Xye,  47  Ohio  St.  349,  8  L.  R.  A.  581,  21  Am. 
St.  Rep.  828,  24  X.  E.  686.  holding  that  grant  of  land  adjoining  non-navigable 
lake  goes  to  center  unless  margin  distinctly  referred  to;  Fuller  v.  Shedd,  161 
111.  486.  33  L.  R,  A.  159,  52  Am.  St.  Rep.  3SO.  44  X.  E.  286,  holding  that  grant 
of  land  bounded  by  meandered  lake  conveys  only  to  water's  edge. 
Effect  of  officer's  appearance  in  conrt. 

Cited  in  note   (11  L.  R.  A.  370)   as  to  law  authorizing  suit  against  state. 
Conclusiveiiess  of  judgment. 

Cited  in  State  ex  rel.  Moore  v.  Clinton  County.  162  Ind.  591,  68  N.  E.  295, 
holding  that  public  notice  under  statute  to  cancel  aid  voted  is  conclusive  under 
persons  in  interest  who  might  have  come  in  and  litigated. 

6  L.  R.  A.  390.  AXDERSOX  v.  JETT,  89  Ky.  375,   12  S.  W.  670. 
Illegal    combinations. 

Cited  in  State  ex  rel.  Crow  v.  Firemen's  Fund  lus.  Co.  152  Mo.  47,  45  L.  R.  A. 


«  L.R.A.  390]  L.  R.  A.  CASES  AS  AUTHORITIES.  1080 

377,  52  S.  W.  595,  denying  right  of  insurers  to  contract  among  themselves  for 
maintenance  of  rates;  Huston  v.  Reutlinger,  91  Ky.  343,  34  Am.  St.  Rep.  225, 
15  S.  W.  867,  holding  void  by-laws  of  underwriters,  limiting  number  and  pay  of 
solicitors,  and  time  of  employment,  or  employment  of  solicitor  severing  from 
another  member  within  one  year;  Gamewell  Fire  Alarm  Teleg.  Co.  v.  Crane, 
160  Mass.  57,  22  L.  R.  A.  677,  39  Am.  St.  Rep.  458,  35  N.  E.  98,  holding  sale  of 
letters  patent  and  improvements,  with  vendor's  stipulation  to  manufacture  or  sell 
machines  for  same  purpose  for  ten  years,  against  public  policy;  Milwaukee 
Masons  &  Builders'  Asso.  v.  Niezerowski,  95  Wis.  136,  37  L.  R.  A.  130,  60  Am.  St. 
Rep.  97,  70  N.  W.  166,  holding  rule  of  builders'  association  requiring  all  bids  to 
be  submitted  to  committee's  examination,  and  that  6  per  cent  be  added  to 
amount  of  lowest  bid,  void;  Brown  v.  Jacobs'  Pharmacy  Co.  115  Ga.  435,  57  L. 
R.  A.  551,  90  Am.  St.  Rep.  126,  41  S.  E.  553,  holding  combination  of  druggists 
to  compel  another  druggist  to  observe  prices,  or  to  prevent  their  wholesalers 
from  selling  to  him,  void;  Tuscaloosa  Ice  Mfg.  Co.  v.  Williams,  127  Ala.  123,  50 
L.  R.  A.  180,  85  Am.  St.  Rep.  125,  28  So.  669,  holding  contract  to  discontinue 
use  of  ice  machine  in  consideration  of  payment  by  owner  of  only  other  machine 
in  town  void;  Lovejoy  v.  Michels,  88  Mich.  28,  13  L.  R.  A.  775,  49  N.  W.  901, 
holding  price  fixed  by  combination  of  manufacturers  with  sole  reference  to  per- 
sonal interests,  not  determinative  of  price  of  goods  ordered  without  agreement 
as  to  price;  Seasongood,  S.  K.  Co.  v.  Tennessee  &  0.  River  Transp.  Co.  21  Ky.  L. 
Rep.  1142,  49  L.  R.  A.  271,  54  S.  W.  193,  holding  one  of  rival  carriers  not  ab- 
solved from  liability  to  shippers  for  refusals  to  accept  freight  under  agreement 
only  to  accept  freight  destined  for  certain  territory;  United  States  v.  Addyston 
Pipe  &  Steel  Co.  46  L.  R.  A.  133,  29  C.  C.  A.  155,  54  U.  S.  App.  723,  85  Fed.  286, 
holding  void,  combination  of  manufacturers  in  several  states  to  regulate  sales 
and  prices  in  many  states;  Ferd  Heim  Brewing  Co.  v.  Belinder,  97  Mo.  App.  70, 
71  S.  W.  691,  holding  brewers'  agreement  to  sell  to  no  one  indebted  to  parties 
thereto  illegal;  State  ex  rel.  Crow  v.  Armour  Packing  Co.  173  Mo.  388,  61  L. 
R.  A.  473,  96  Am.  St.  Rep.  515,  73  S.  W.  645,  holding  combination  of  packing 
houses  to  control  price  of  meat  illegal;  JStna  Ins.  Co.  v.  Com.  106  Ky.  870.  45 
L.  R.  A.  3,58,  51  S.  W.  624,  holding  combination  for  maintenance  of  insurance 
rates  not  indictable  at  common  law;  Queen  Ins.  Co.  v.  State,  86  Tex.  266,  22 
L.  R.  A.  492,  24  S.  W.  397,  sustaining  combination  to  enforce  uniform  rates  of 
insurance  and  of  agents'  commissions;  Arnold  v.  Jones  Cotton  Co.  152  Ala.  505, 
12  L.R.A.  (N.S.)  154,  44  So.  662,  holding  that  an  agreement  between  two  buyers 
of  cotton  that  each  would  pay  the  other  ^  of  a  cent  for  every  pound  pur- 
chased and  give  the  other  first  opportunity  to  supply  certain  demands  for  cotton 
is  illegal;  demons  v.  Meadows,  123  Ky.  183,  6  L.R.A. (N.S.)  851,  124  Am.  SI.  Rep. 
339,  94  S.  W.  13,  holding  that  an  agreement  between  competing  proprietors  of 
hotels  itt  a  town  whereby  one  agrees  to  close  his  hotel  for  three  years  and  the 
other  agrees  to  pay  him  a  certain  sum  monthly  during  the  time  is  illegal; 
Louisville  &  N.  R.  Co.  v.  Central  Stock  Yards  Co.  133  Ky.  177,  97  S.  W.  778; 
holding  that  a  contract  between  railroad  and  stock  yard  company  in  which  the 
railroad  agrees  to  establish  no  other  stock  yard  in  the  city  and  to  deliver  all 
^stock  shipped  over  its  road  to  the  stock  yard  company  is  illegal;  Merchants'  Ice 
&  Cold  Storage  Co.  v.  Rohrman,  138  Ky.  551,  30  L.R.A. (N.S.)  981,  137  Am. 
St.  Rep.  390,  128  S.  W.  599,  holding  that  contracts  looking  to  consolidation  of  ice 
plants  in  certain  city  and  intended  for  purpose  of  controlling  market,  are  invalid, 
although  no  effort  was  made  to  fix  price  of  ice  in  local  market;  Barrone  v.  Moseley 
Bros.  144  Ky.  702,  139  S.  W.  869,  holding  that  contract  having  as  sole  object 
restriction  of  competition  is  void;  State  ex  rel.  Hadley  v.  Standard  Oil  Co.  218 
Mo.  461,  116  S.  W.  902,  holding  that  a  pool  or  agreement  between  oil  companies 


]081  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  392 

whereby  competition  was  stifled  and  a  buying  by  Standard  Oil  Company  of  New 
Jersey  of  a  majority  of  stock  of  all  competing  companies  is  an  illegal  combina- 
tion in  restraint  of  trade;  DeWitt  Wire-Cloth  Co.  v.  New  Jersey  Wire-Cloth  Co. 
1  (5  Daly,  532,  14  N.  Y.  Supp.  277,  holding  an  agreement  between  manufacturers, 
in  which  each  agrees  under  heavy  penalty  not  to  sell  at  less  than  stipulated 
price  is  contrary  to  public  policy  and  illegal. 

Cited  in  footnotes  to  Pittsburgh  Carbon  Co.  v.  McMillin,  7  L.  R.  A.  46,  which 
holds  party  to  illegal  trust  combination  not  entitled  to  proceeds  as  against  re- 
ceiver of  trust  assets;  Newell  v.  Meyendorff,  8  L.  R.  A.  440,  which  holds  valid, 
contract  giving  exclusive  agency  in  certain  territory  for  sale  of  particular  brand 
of  cigars. 

Cited  in  notes  (13  L.  R.  A.  770)  as  to  effect  of  fixing  price  by  illegal  combina- 
tion; (8  L.  R.  A.  497)  as  to  effect  of  contracts  against  public  policy;  (8  L.  R- 
A.  500)  as  to  illegal  nature  of  monopolies;  (6  L.R.A.  (N.S.)  849)  on  validity  of 
stipulation  not  to  engage  in  particular  business,  not  ancillary  to  lawful  con- 
tract; (74  Am.  St.  Rep.  249,  272)  on  combinations  constituting  unlawful  trusts; 
(41  L.  ed.  U.  S.  1010)  on  validity  of  contracts  in  restraint  of  trade. 

Distinguished  in  United  States  v.  Trans-Missouri  Freight  Asso.  24  L.  R.  A. 
83,  4  Inters.  Com.  Rep.  5,  7  C.  C.  A.  74,  19  U.  S.  App.  36,  58  Fed.  70;  Affirming- 
53  Fed.  449,  sustaining  agreement  by  competing  railways  for  maintenance  of 
reasonable  rates  and  equal  facilities  for  interchange  of  traffic,  without  illegally 
limiting  competition;  Louisville  Bd.  of  Fire  Underwriters  v.  Johnson,  133  Ky. 
805,  24  L.R.A.  (N.S.)  157,  119  S.  W.  153,  holding  that  a  by-law  of  a  voluntary 
unincorporated  association  of  fire  underwriters  providing  that  no  member  shall 
take  an  agency  of  a  company  already  having  an  agency  in  the  city  is  valid. 

6  L.  R.  A.  392,  GOULDS  v.  BROPHY,  42  Minn.  109,  43  N.  W.  834. 
Implied  warranty  of  fitness. 

Cited  in  Wisconsin  Red  Pressed-Brick  Co.  v.  Hood,  54  Minn.  548,  56  N.  W.. 
165,  Same  Case  on  Subsequent  Appeal  in  60  Minn.  404,  51  Am.  St.  Rep.  539,  62 
N.  W.  550,  holding,  on  sale  of  "common  bricks,  no  warranty  of  fitness  for  in- 
tended purpose;  J.  Thompson  Mfg.  Co.  v.  Gunderson,  106  Wis.  454,  49  L.  R. 
A.  862,  82  N.  W.  299,  holding  no  implied  warranty  of  fitness  of  machines  manu- 
factured according  to  model  and  specifications;  J.  I.  Case  Plow  Works  v.  Niles  & 
S.  Co.  90  Wis.  603,  63  N.  W.  1013,  holding  goods  manufactured  according  to 
specifications  not  warranted  fit  for  known  purpose;  Milwaukee  Boiler  Co.  v.. 
Duncan,  87  Wis.  125,  41  Am.  St.  Rep.  33,  58  N.  W.  232,  holding  boiler  manu- 
factured according  to  specifications  not  warranted  fit  for  known  purpose;  Fair- 
banks, M.  &  Co.  v.  Baskett,  98  Mo.  App.  70,  71  S.  W.  1113,  holding  vendor  of 
engine  of  designated  kind  and  character  does  not  impliedly  warrant  fitness  for 
intended  uses;  Kinkel  v.  Winne,  67  Kan.  104,  62  L.  R.  A.  598,  72  Pac.  548,  hold- 
ing seller  of  fire-insurance  expiration  register  does  not  impliedly  warrant  ex- 
clusiveness  of  information  contained;  Gilcrest  Lumber  Co.  v.  Wilson.  84  Neb.  587, 
121  N.  W.  989,  holding  that  there  is  no  implied  warranty  of  fitness  for  purpose, 
where  dealer  orders  for  vender  machine  not  handled  by  dealer;  Stanford  v. 
National  Drill  &  Mfg.  Co.  28  Okla.  443,  114  Pac.  734.  holding  that  no  implied 
warranty  exists  that  machinery  will  answer  particular  purpose;  Mine  Supply  Co. 
v.  Columbia  Min.  Co.  48  Or.  394,  86  Pac.  789,  holding  that  if  the  purchaser 
gets  the  article  he  buys,  and  buys  that  which  he  gets,  he  takes  the  risk  of  suit- 
ableness for  the  intended  purpose,  uness  there  is  express  warranty:  Davis  Calyx 
Drill  Co.  v.  Mallory,  69  L.R.A.  978,  69  C.  C.  A.  662,  137  Fed.  335;  Reynolds 
v.  General  Electric  Co.  73  C.  C.  A,  23,  141  Fed.  556;  Ehrsam  v.  Brown,  76  Kan. 
210,  15  L.R.A.  (N.S.)  881,  91  Pac.  179, — holding  that  where  certain  machines- 


C  L.R.A.  392]  L.  R.  A.  CASES  AS  AUTHORITIES.  1082 

were  ordered  and  delivered,  there  was  no  implied  warranty  that  they  would 
serve  the  purpose  intended;  Crankshaw  v.  Schweizer  Mfg.  Co.  1  Ga.  App.  378, 
58  S.  E.  222,  holding  that  the  knowledge  of  the  vendor  of  the  intended  use  of  the 
machine,  is  immaterial  to  raise  an  implied  warranty  of  a  fitness  to  that  use; 
Holt  v.  Sims,  94  Minn.  159,  102  N.  W.  386,  holding  that  where  the  purchaser 
accepted  the  proposals  of  the  vendor  to  furnish  and  install  a  heating  plant, 
there  was  no  warranty  that  it  would  serve  the  purpose  intended;  Colchord 
Machinery  Co.  v.  Loy-Wilson  Foundry  &  Mach.  Co.  131  Mo.  App.  548,  110  S.  W. 
630,  holding  that  where  the  person  got  the  identical  machine  that  he  selected 
and  ordered  there  was  no  warranty  that  it  was  fit  for  the  purpose  intended ; 
Rollins  Engine  Co.  v.  Eastern  Forge  Co.  73  N.  H.  94,  68  L.R.A.  443,  59  Atl.  382, 
holding  in  the  absence  of  express  warranty,  one  who  undertook  to  forge  a  piston 
rod  for  a  certain  engine,  there  was  no  warranty  that  it  would  be  free  from 
defects  not  apparent. 

Cited  in  notes  (6  L.  R.  A.  375)  on  implied  warranty  on  sale  of  goods;  (22 
L.  R.  A.  188)  on  implied  warranty  of  fitness  of  property  bought  for  special 
purpose;  (6  L.  R.  A.  789)  on  distinction  between  sales  and  contracts  to  manufac- 
ture; (35  L.R.A.  (N.S.)  286)  on  effect  of  sale  with  particular  description  of  kind 
or  quality;  (102  Am.  St.  Rep.  618)  on  implied  warranty  of  quality. 

Distinguished  in  Haines,  J.  &  C.  Co.  v.  Young,  13  Pa.  Super.  Ct.  315,  holding 
article  manufactured  for  particular  purpose  impliedly  warranted  to  be  fit. 

6  L.  R.  A.  394,  STATE  ex  rel.  BALTZELL  v.  STEWART,  74  Wis.  620,  43  N. 

W.  947. 
Special  legislation. 

Cited  in  Carson  v.  St.  Francis  Levee  Dist.  59  Ark.  535,  27  S.  W.  590  (disap- 
proved in  dissenting  opinion ) ,  sustaining  act  conferring  corporate  powers  on 
public  levee  board;  State  ex  rel.  Turner  v.  Bell,  91  Wis.  274,  64  N.  W.  846,  hold- 
ing act  repealing  special  drainage  act  and  authorizing  levy  of  tax  to  pay  ex- 
penses under  same  void;  State  ex  rel.  Davis  v.  Evans,  122  Tenn.  192,  122  S.  W.  81, 
holding  that  statute  requiring  county  superintendents  of  schools  to  possess  liter- 
ary qualifications  to  be  evidenced  by  certificate  of  state  board  of  education  is  not 
unconstitutional  as  delegating  legislative  power;  Globe  Elevator  Co.  v.  Andrew, 
144  Fed.  871,  holding  that  a  statute  creating  the  Superior  Grain  &  Warehouse 
Commission  and  making  it  a  corporation  is  not  invalid  on  the  ground  that  it 
specially  creates  corporate  power,  the  place  in  question  being  unique  and  pecu- 
liar. 

Distinguished  in  State  ex  rel.  Church  Mut.  Ins.  Co.  v.  Cheek,  77  Wis.  287,  46 
N.  W.  163,  holding  act  to  enable  Methodist  church  or  annual  conferences  to  form 
insurance  corporation,  which  speaks  throughout  of  but  one  corporation,  void. 
Police   powers  as   to   drainage. 

Cited  in  Muskego  v.  Drainage  Comrs.  78  Wis.  44,  47  N.  W.  11,  holding  drain- 
age act  valid  exercise  of  police  power;  Wilson  v.  Sanitary  District,  133  111. 
467,  27  N.  E.  203,  upholding  validity  of  act  creating  drainage  corporation  in- 
cluding both  city  and  county;  Morrison  v.  Morey,  146  Mo.  561,  48  S.  W.  629, 
holding  levee  district  political  subdivision  of  state  which  may  be  created  under 
police  power  of  state;  Rude  v.  St.  Marie,  121  Wis.  642,  99  N.  W.  460,  holding 
that  the  laying  of  a  drain  and  assessments  for  same  are  a  valid  exercise  of  police 
power  regulation  conducive  of  public  health. 

Cited  in  note   (49  L.  R.  A.  786)   as  to  drainage  of  private  lands  as  public  pur- 
pose for  which  power  of  eminent  domain  may  be  exercised. 
Necessity  of  condemnation. 

Cited  in   Wisconsin  Water   Co.  v.   Winans,   85   Wis.   39,  20  L.  R.  A.   666,  39 


1083  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  399 

Am.  St.  Rep.  813,  54  N.  W.  1003,  holding  question  of  necessity  for  taking  land 
by  eminent  domain   for  legislature. 

Cited  in  notes  (11  L.R.A.  (X.S.)  941)  on  necessity  of  taking  particular  land  by 
eminent  domain,  as  a  judicial  question;  (22  L.R.A. (N.S.)  7,  13,  14,  58,  67,  69) 
on  judicial  power  over  eminent  domain. 

Notice     and      rii.-.  lit      of     appeal. 

Cited  in  Roundenbush  v.  Mitchell,  154  Ind.  620,  57  N.  E.  510,  upholding  drain- 
age act  providing  for  notice  and  hearing  before  commissioner  and  upon  ap- 
peal, and  prohibiting  assessment  in  absence  of  compensating  benefits;  Towns  v. 
Klamath  County,  33  Or.  234,  53  Pac.  604,  holding  notice  of  application  for 
highway  location  not  essential,  if  nonconsenting  abutter  has  right  of  appeal; 
Ross  v.  Wright  County,  128  Iowa,  437,  1  L.R.A.  (N.S.)  437,  104  N.  W.  506, 
holding  it  not  essential  that  notice  of  the  proceedings  to  establish  a  ditch  be 
given  where  notice  of  the  assessment  is  given ;  Ross  v.  Wright  County,  128  Iowa, 
438,  1  L.R.A. (N.S.)  438,  104  N.  W.  506,  holding  right  of  appeal  from  judi- 
cial hearing  of  ditch  assessment  held  on  notice  was  not  requisite  to  due  process 
of  law. 

Cited  in  footnotes  to  Branson  v.  Gee,  24  L.  R.  A.  355,  which  holds  act  author- 
izing taking  of  gravel  from  private  lands  without  notice,  for  highway  repairs, 
Talid;  Brown  v.  Markham,  30  L.  R.  A.  84,  which  holds  valid,  statute  au- 
thorizing logger's  lien  without  notice  to  owner,  but  giving  subsequent  opportu- 
nity to  intervene. 
Validity  of  drainage  assessments. 

Cited  in  Morrison  v.  Morey,  146  Mo.  564,  48  S.  W.  629,  holding  levee  assess- 
ments for  benefits  constitutional,  not  being  a  tax. 
Legislative  power  or  action. 

Cited  in  State  ex  rel.  Kettle  River  Quarries  Co.  v.  Duis,   17  N.  D.  324,   116 
N.  WT.  751,  holding  that  an  ordinance  providing  for  the  paving  of  certain  streets 
is  legislative  in  its  character  and  subject  to  mayor's  veto. 
Delegated  legislative  power. 

Cited   in  Re  Appointment  of  Revisor,   141  Wis.  600,   124  N.  W.   670,  holding 
that  a  statute  authorizing  a  court  or  judges  to  appoint  a  statute  revisor  where 
his  duties  are  to  assist  the  court  in  the  discharge  of  judicial  duties,  is  consti- 
tutional. 
— —  Local    improvements   and    taxes. 

Cited  in  Ross  v.  Wright  County,  128  Iowa,  438,  1  L.R.A. (N.S.)  438,  104  N.  W. 
500.  on  delegation  by  legislative  power  of  erection  of  local  tax  districts;  Shreves 
v.  Gibson,  76  Kan.  712,  92  Pac.  584,  holding  that  an  appeal  from  an  order  of 
commissioners  requiring  a  drain  and  a  final  determination  of  amount  of  labor 
to  l>e  performed  by  each  person  interested  before  a  jury  selected  by  probate 
judge  is  not  an  attempt  to  put  legislative  functions  upon  a  judicial  tribunal. 

6  L.  R.  A.  399,  FILER  v.  FILER,  77  Mich.  469,  43  N.  W.  887. 
Effect  of  decree  in   divorce  snit. 

Cited  in  note  (6  L.  R.  A.  488)  as  to  effect  of  divorce  on  articles  of  separa- 
tion. 

•  Contempt   proceedings   to   enforce   payment   of  alimony. 

Cited  in  note  (137  Am.  St.  Rep.  878,  885)  on  contempt  proceedings  to  enforce 
payment  of  alimony. 


6  L.R.A.  400]  L.  R.  A.  CASES  AS  AUTHORITIES.  1084 

fl  L.  R.  A.  400,  FARWELL  v.  BECKER,  129  111.  201,  16  Am.  St.  Rep.  267,  21 

N.   E.    792. 
Xiiu  n-ii.-.  s  ion   of  items   or  amounts  give  rift-lit   of  appeal. 

Cited  in  Stettauer  v.  Boldenweck,  183  111.  189,  55  N.  E.  709,  and  Aultman 
&  T.  Co.  v.  Weir,  134  111.  138,  24  N.  E.  771,  holding  decision  of  appellate  court 
final  in  creditor's  action  to  set  aside  sale,  where  claims  less  than  $1,000;  Payne 
v.  Chicago,  R.  I.  &  P.  R.  Co.  170  111.  609,  48  N.  E.  1053,  holding  that  supreme 
court  will  dismiss  appeal  in  garnishment  against  one  of  several  garnishees  whose 
individual  liability  less  than  $1,000;  Hutmacher  v.  Anheuser-Busch  Brewing  Asso. 
198  111.  614,  64  N.  E.  1092,  holding  that  several  amounts  claimed  in  consoli- 
dated garnishment  proceedings  cannot  be  aggregated  to  confer  jurisdiction  on 
supreme  court;  Davis  v.  Upham,  191  111.  373,  61  N.  E.  76,  holding  appellate 
court  decision  final  where  each  of  several  mechanic's  liens  less  than  $1,000; 
Garden  City  Sand  Co.  v.  American  Refuse  Crematory  Co.  205  111.  46,  68  X.  E. 
724,  dismissing  appeal  to  supreme  court  in  proceeding  to  enforce  stockholders' 
liability  for  unpaid  balances,  as  to  stockholders  whose  individual  liability  is 
less  than  $1,000;  Spangler  v.  Green,  21  Colo.  508,  52  Am.  St.  Rep.  259,  42 
Pac.  674,  holding  several  judgments  in  mechanic's  lien  proceeding  cannot  be 
aggregated  to  confer  jurisdiction  on  appellate  court;  Bache  v.  Ward,  225  111.  324, 
80  N.  E.  330,  holding  that  an  appeal  from  the  allowance  of  a  single  item  in  an 
executor's  account  will  not  lie  where  the  item  amounts  to  less  than  $1000.00 ; 
Teter  v.  Larson,  229  111.  592,  82  X.  E.  383,  holding  that  an  appeal  from  a  decree 
enforcing  stockholders  liability  for  corporate  debts,  will  not  lie  where  each 
separate  liability  is  less  than  $1000.00  and  no  certificate  of  importances  has 
been  issued;  Singer  v.  Singer,  122  Tenn.  689,  126  S.  W.  1085,  holding  that  court 
of  civil  appeals  and  not  supreme  court  has  jurisdiction  of  appeal  where  each  of 
several  claimants  sue  individually  in  chancery  for  separate  sums  less  than  one 
thousand  dollars,  not  aggregate  of  which  exceeds  that  amount. 

Distinguished  in  Merritt  v.  Crane  Co.  225  111.  184,  80  X".  E.  103,  holding  that 
where  liens  aggregating  more  than  $1000.00  were  established  by  several  parties 
an  appeal  will  not  lie  against  a  lienor  whose  claim  is  less  than  $1000.00  though, 
the  same  evidence  is  relied  upon  to  defeat  all  the  liens. 
Contribution    between    joint    tort    feasors. 

Cited  in  Vandiver  v.  Pollak,  107  Ala.  555,  54  Am.  St.  Rep.  118,  19  So.  180, 
and  Selz  v.  Guthman.  62  111.  App.  635,  holding  creditors  wrongfully  procuring 
attachment  liable  to  contribute  to  one  paying  judgment;  Grimes  v.  Taylor,  93: 
111.  App.  497,  holding  plaintiff  in  replevin  assisting  in  seizure  liable  to  indem- 
nify officer;  First  Nat.  Bank  v.  Avery  Planter  Co.  69  Xeb.  337,  111  Am.  St  Rep. 
541,  95  X.  W.  622,  holding  that  contribution  among  attaching  creditors  will  be 
enforced  where  the  attachment  proceedings  were  in  good  faith  though  in  fact 
the  acts  of  the  creditors  were  tortious;  Fulton  County  Gas  &  Electric  Co.  v. 
Hudson  River  Teleph.  Co.  130  App.  Div.  347,  114  X.  Y.  Supp.  642,  holding  that 
where  a  judgment  is  recovered  against  joint  tort-feasors  and  by  an  unjust  ar- 
rangement is  collected  of  the  innocent  party,  an  action  will  lie  for  indemnity. 

Cited  in  notes  (6  L.R.A. (X.S.)  600)  on  joint  liability  of  creditors  for  wrongful 
levy  on  several  attachments;  (16  Am.  St.  Rep.  254)  on  negligence  of  two  or  more 
persons  resulting  in  injury  to  third  person. 

Distinguished  in  Frankenthal  v.  Lingo,  16  Tex.  Civ,  App.  232,  40  S.  W.  815, 
holding  creditors  wrongfully  procuring  attachment  not  liable  to  contribute  to 
judgment  recovered  against  first  creditor. 

6  L.  R.  A.  403,  BEAVER  v.  BEAVER,  117  N.  Y.  421,  15  Am.  St.  Rep.  531,  22 

N.  E.  940. 
Second  appeal   in    137   X.   Y.  59,   32  N.   E.   998. 


1085  L.  R.  A.  CASES  AS  AUTHORITIES,  [6  L.R.A.  403 

When    trust    is    created. 

Cited  in  Beeman  v.  Beeman,  88  Hun,  15.  34  N.  Y.  Supp.  484,  holding  trust 
not  created  by  conveyances  by  father  to  children,  with  mortgages  back,  condi- 
tioned to  pay  sum  for  his  life  and  then  to  daughter  named;  Sullivan  v.  Sulli- 
van, 39  App.  Div.  100,  56  X.  Y.  Supp.  693,  holding  trust  for  niece  not  created 
by  certificate  of  deposit  to  order  of  depositor,  and  to  niece  in  event  of  death, 
but  retained  by  depositor;  Fellows  v.  Fellows,  69  N.  H.  345,  46  Atl.  474,  holding 
mortgage  conditional  upon  support  of  mortgagee  for  life,  and  then  to  pay  same 
to  persons  named,  not  irrevocable  trust  from  which  mortgagee  cannot  release 
mortgagor;  Domestic  Missions  v.  Mechanics'  Sav.  Bank,  40  App.  Div.  121,  54 
N.  Y.  Supp.  28,  holding  trust  created  by  addition  to  depositor's  name  of  words 
"in  trust  for  board  of  missions;"  Mitchell  v.  Bilderback,  159  Mich.  490,  124  X. 
W.  557,  holding  that  an  oral  agreement  by  owner  of  equity  of  redemption  to  sell 
and  divide  proceeds  of  sale  with  purchasing  mortgagee,  through  foreclosure  of 
mortgage,  is  not  a  valid  trust;  Frost  v.  Frost,  165  Mich.  593,  131  X.  W.  60, 
to  the  point  that  creation  of  trust  may  be  inferred  from  facts  and  circumstances 
of  case,  and  does  not  depend  on  particular  form  of  words;  McKee  v.  Allen,  204 
Mo.  685,  103  S.  W.  76,  holding  that  taking  conveyances  in  the  name  of  a  third 
person  and  loaning  money  and  taking  notes  in  her  name  is  in  itself  insufficient 
to  establish  a  trust;  Webb's  Academy  v.  Hidden,  118  App.  Div.  716,  103  X.  Y. 
Supp.  659,  holding  that  where  agreement  could  be  repudiated  no  trust  was  cre- 
ated; Re  Kaupper,  141  App.  Div.  59,  125  X.  Y.  Supp.  878;  Carlon  v.  Ryan,  73 
Misc.  601,  133  X.  Y.  Supp.  629, — to  the  point  that  it  is  not  necessary  that  there 
should  be  express  declaration  of  trust  if  attaching  circumstances  disclose  that 
trust  was  to  be  created  and  its  purpose. 

Cited  in  footnote  to  Sayre  v.  Weil  15  L.  R.  A.  544,  which  holds  irrevocable, 
deposit  to  one's  self  as  trustee  for  specified  children. 

Cited  in  notes  (15  Am.  St.  Rep.  583)  on  creation  of  express  trusts;  (34  Am. 
St.  Rep.  196,  213,  214,  220,  222),  on  voluntary  trusts  arising  from  declarations 
of  trustor. 

Distinguished  in  Domestic  Missions  v.  Mechanics'  Sav.  Bank,  24  Misc.  597,  54 
N.   Y.    Supp.   28,   holding   declaration   of   trust   evidenced   by   transfer   of   bank 
account  to  board  of  domestic  missions  at  request  of  depositor. 
•Trust    in    deposit    in    name    of   another. 

Cii<-d  in  Re  Barefield,  36  Misc.  748,  74  X.  Y.  Supp.  472,  holding  deposit  by  ad- 
ministratrix of  her  own  money  in  trust  for  estate  of  decedent  not  of  itself 
declare  trust  in  estate;  Peoples  Sav.  Bank  v.  Webb,  21  R.  I.  221,  42  Atl.  874. 
holding  deposit  by  one  in  name  of  his  infant  son  not  of  itself  declare  a  trust  in 
latter's  favor;  Peninsular  Sav.  Bank  v.  Wineman,  123  Mich.  259,  81  X.  W.  1091, 
holding  gift  to  wife  not  created  by  mere  transfer  of  deposit  by  husband  to  wife's 
name,  with  pass-book  in  her  name  but  retained  by  him;  Devoe  v.  Lutz,  133  App. 
Div.  358,  117  X.  Y.  Supp.  339,  holding  that  where  a  wife,  having  no  separate 
property  and  inheriting  none  during  coverture,  takes  all  her  husband's  earnings 
to  use  for  living  expenses  and  to  deposit  surplus  to  his  use,  a  valid  trust  is 
created  in  favor  of  the  husband  in  the  deposits  made  in  her  name. 

Distinguished  in  Cunningham  v.  Davenport,  147  X.  Y.  46,  32  L.  R.  A.  376, 
49  Am.  St.  Rep.  641,  41  X.  E.  412,  Reversing  74  Hun,  55,  26  N.  Y.  Supp. 
~.}'1'2.  holding  that  administrator  of  one  in  whose  name  deposit  was  made  in 
savings  bank,  of  which  he  never  knew,  cannot  recover  amount  withdrawn  by  de- 
positor: Millard  v.  Clark.  80  Hun,  146,  29  X.  Y.  Supp.  1012,  holding  deposit 
started  by  father  with  child's  savings,  in  her  name  and  acknowledged  by  him 
to  be  hers,  held  in  trust  for  her  though  deposited  subject  to  his  control. 


6  L.R.A.  403]  L.  R.  A.  CASES  AS  AUTHORITIES.  10SS 

Deposit  in  alternative  named. 

Cited  in  McElroy  v.  Albany  Sav.  Bank,  8  App.  Div.  48,  40  N.  Y.  Supp.  422, 
holding  that  deposit  in  savings  bank  in  account  with  alternative  names  of  hus- 
band and  wife,  or  survivor,  belongs  to  survivor;  Grafing  v.  Irving  Sav.  Inst. 
37  Misc.  22,  74  N.  Y.  Supp.  741,  holding  savings  bank  protected  in  payment  to- 
executrix  of  one  in  whose  name  "or"  another  deposit  had  been  made,  on  pre- 
sentation of  pass-book;  Norway  Sav.  Bank  v.  Merriam,  88  Me.  150,  33  Atl.  840 
holding  trusts  not  created  by  deposits  in  alternative  names,  when  depositor 
retained  pass-books  which  were  found  after  her  death  among  her  belongings;  Den- 
igan  v.  Hibernia  Sav.  &  L.  Soc.  127  Cal.  141,  59  Pac.  389,  holding  gift  to 
husband  of  deposit  made  by  wife  in  her  name  "or"  that  of  husband  not  evi- 
denced by  mere  possession  of  pass-book;  Hannon  v.  Sheehan,  46  N.  Y.  S.  R.  566,. 
19  N.  Y.  Supp.  698,  holding  gift  inferred  from  one  sister  to  another  of  deposit 
in  name  of  depositor  "or"  sister,  with  pass-book  found  where  latter  lived;  Kelly 
v.  Home  Sav.  Bank,  103  App.  Div.  149,  92  X.  Y.  Supp.  578.  reversing  44  Misc. 
104,  89  X.  Y.  Supp.  770.  holding  on  a  deposit  by  "B.  or  to  her  daughter  or  the 
survivor  of  them,"  the  question  is  one  of  fact  whether  a  gift  was  meant:  Kelly 
v.  Beers,  194  X.  Y.  55,  128  Am.  St.  Rep.  543,  86  X.  E.  980,  holding  change  of 
names  of  accounts  to  include  daughter  or  survivor,  expressed  and  designed  to 
effect  daughter's  ownership  was  gift. 
Deposit  in  trust  for  another. 

Cited  in  Lee  v.  Kennedy,  25  Misc.  142,  54  X.  Y.  Supp.  155,  holding  mere  de- 
posit in  one's  name,  "for  niece"  named,  not  declaration  of  trust;  Bishop  w 
Seaman's  Bank  for  Savings,  33  App.  Div.  182,  53  X.  Y.  Supp.  488.  holding  de- 
posit "in  trust"  for  another  raises  presumption  of  trust  and  does  not  lapse  by 
death  of  cestui  que  trust;  Devlin  v.  Hinman,  34  App.  Div.  109,  54  X.  Y.  Supp_. 
496,  holding  evidence  disclosed  no  intention  to  make  present  gift  of  money  de- 
posited by  father  in  own  name  as  "trustee"  for  two  children,  and  continually 
drawn  on  by  himself;  Robertson  v.  McCarty,  54  App.  Div.  106,  66  X.  Y.  Supp. 
327,  holding  deposit  "in  trust"  for  brother  created  irrevocable  trust  notwith- 
standing retention  of  bank  book  and  that  beneficiary  was  unaware  of  it  until 
death  of  depositor;  Harrison  v.  Totten,  29  Misc.  700,  62  X.  Y.  Supp.  754r. 
holding  deposit  '"for"  another  does  not  create  irrevocable  trust  where  depositor  re- 
tains book  and  draws  from  account;  Jenkins  v.  Baker,  77  App.  Div.  513,  78  X.  Y. 
Supp.  1074,  Reversing  36  Misc.  56,  72  X.  Y.  Supp.  546,  and  Re  Totten,  89  App. 
Div.  371,  85  X.  Y.  Supp.  928,  Reversing  38  Misc.  351,  77  X.  Y.  Supp.  928,  hold- 
ing valid  trust  created  by  deposit  in  trust  for  another,  subsequently  with- 
drawn; Farleigh  v.  Cadman,  159  X.  Y.  172,  53  X.  E.  808,  holding  deposit  made 
by  one,  acting  as  father,  in  his  own  name  in  trust  for  child  and  known  to  her, 
held  in  trust;  Grafing  v.  Heilman,  1  App.  Div.  263,  37  X.  Y.  Supp.  253,  hold- 
ing deposit  in  name  of  depositor  in  trust  for  another  held  in  trust  for  bene- 
ficiary, although  interest  reserved  to  depositor  and  principal  to  go  only  on. 
death  of  depositor;  Macy  v.  Williams,  83  Hun,  249,  31  X.  Y.  Supp.  620,  hold- 
ing deposits  made  in  name  of  depositor  "in  trust"  for  several  persons  named,  not 
intended  as  gifts;  Decker  v.  Union  Dime  Sav.  Inst.  15  App.  Div.  554,  44  N.  Y. 
Supp.  521,  holding  circumstances  justified  finding  that  trust  was  created  in  de- 
posit in  name  of  depositor  as  "trustee"  for  another;  Re  Mueller,  15  App.  Div. 
69,  44  X.  Y.  Supp.  280,  holding  depositor  does  not  devest  himself  of  title  to- 
deposit  in  own  name  in  trust  for  another,  if  there  is  no  intention  to  give  bene- 
ficial interest;  Martin  v.  Martin,  46  App.  Div.  448,  61  X.  Y.  Supp.  813,  hold- 
ing deposit  in  bank  held  in  trust  by  one  in  name  of  another,  coupled  with 
statement  that  depositor  "may  draw,"  and  declaration  that  money  was  to 
belong  to  donee;  Re  Biggars,  39  Misc.  430,  80  X.  Y.  Supp.  214,  holding  valid; 


1087  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  403 

trust  created  by  deposit  "in  trust  for"  daughter  who  was  not  informed  thereof, 
though  depositor  made  withdrawals;  Dickie  v.  Adams,  40  Misc.  90,  81  N.  Y. 
Supp.  336,  holding  evidence  of  deposit  in  name  of  one  person  in  trust  for 
another,  subsequently  withdrawn  by  individual  check,  insufficient  to  establish 
trust;  Kelly  v.  National  Sav.  Bank,  124  App.  Div.  105,  108  X.  Y.  Supp.  216 
(dissenting  opinion),  on  insufficiency  of  name  or  form  of  deposit  of  itself; 
Re  Totten,  170  X.  Y.  121,  70  L.R.A.  715  71  N.  E.  748,  1  A.  &  E.  Ann.  Gas.  900, 
holding  that  a  deposit  made  by  depositor  in  trust  for  another  is  not  an  irre- 
vocable trust,  and  is  terminated  by  the  account  subsequently  being  withdrawn : 
Re  Bulwinkle,  107  App.  Div.  333,  95  N.  Y.  Supp.  176.  holding  that  where 
money  is  deposited  in  name  of  depositor  in  trust  for  L.  who  died  before  depositor 
and  subsequently  the  words  "in  trust  for  L."  were  obliterated  from  pass  book 
the  tentative  trust  came  to  an  end  upon  death  of  L. ;  Garvey  v.  Clifford.  114 
App.  Div.  196,  99  X.  Y.  Supp.  555,  holding  that  money  deposited  in  depositor's 
name  in  trust  for  his  married  sister  in  her  maiden  name,  interest  drawn  by  de- 
positor and  no  change  made  in  deposit  on  death  of  sister,  created  no  trust; 
Re  United  States  Trust  Co.  117  App.  Div.  181,  102  X.  Y.  Supp.  271,  holding  that 
a  tentative  trust  created  by  deposit  in  name  of  father  in  trust  for  his  son  term- 
inates ipso  facto  on  son's  death. 

Distinguished  in  Hyde  v.  Kitchen,  69  Hun,  282,  23  X.  Y.  Supp.  573,  holding 
irrevocable  trust  shown  by  deposit  of  money  in  bank  in  name  of  depositor  in 
trust  for  brother  named,  though  bank  book  retained  ty  depositor;  Williams  v. 
Brooklyn  Sav.  Bank,  51  App.  Div.  337,  64  XT.  Y.  Supp.  1021,  holding  deposit 
in  name  of  depositor  "in  trust"  for  another  showed  prima  facie  intention  to 
create  trust,  which  was  not  defeated  by  retention  of  book  and  withdrawal  of 
part  of  fund;  Lattan  v.  Totten,  44  Misc.  116,  89  X.  Y.  Supp.  761,  holding  that  a 
deposit  in  a  savings  bank  by  one,  in  his  sisters'  names  as  trustees  for  his 
daughters  and  delivery  of  pass  book  to  them  creates  a  valid  trust;  Fowler  v. 
Cowing,  152  Fed.  809,  holding  that  where  a  father  purchased  bank  stock  in  trust 
for  his  children  and  stated  to  bank's  officers  that  such  was  his  purpose  in  pur- 
chasing the  stock,  a  valid  trust  was  created. 
"When  acceptance  of  gift  implied. 

Cited  in  Matson  v.  Abbey,  70  Hun,  478,  24  X.  Y.  Supp.  284;  Langworthy  v. 
Crissey,  10  Misc.  453,  31  X.  Y.  Supp.  85;  Goelz  v.  People's  Sav.  Bank,  31  Ind 
App.  75,  67  X.  E.  232;  O'Xeil  v.  Greenwood.  106  Mich.  582,  64  X.  W.  511,— 
holding  acceptance  of  gift  beneficial  to  donee  implied;  Porter  v.  Gardner,  60 
Hun,  575,  15  X.  Y.  Supp.  398,  holding  acceptance  of  colt  given  to  nephew  im- 
plied: Podhajsky's  Estate.  137  Iowa,  746,  115  X.  W.  590.  holding  acceptance  of 
conveyance  of  land  related  back  to  time  of  delivery  of  deed  to  trustee  who  was  to 
turn  it  over  to  grantee  on  payment  of  trust  money. 
What  constitutes  grift. 

Cited  in  Schwind  v.  Ibert,  60  App.  Div.  380,  69  X.  Y.  Supp.  921,  holding  gift 
not  shown  by  statement  by  depositor  that  she  put  money  in  bank  for  daughter, 
deposited  in  joint  names  of  self  and  daughter;  Simpson  v.  Harris.  21  Xev.  363, 
31  Pac.  1009,  holding  gift  not  evidenced  by  declaration  that  one  advancing 
money  to  another  will  never  enforce  debt;  Re  Timerson,  39  Misc.  678,  80  X.  Y. 
Supp.  639,  holding  expressed  intention  to  forgive  debts,  without  delivery  of 
notes  to  makers,  does  not  constitute  gift;  Re  Munson,  25  Misc.  589,  56  X.  Y. 
Supp.  151,  holding  gift  to  son  of  personal  property  on  farm  not  created  where 
father  remained  in  possession;  Re  Taber,  30  Misc.  181,  63  X.  Y.  Supp.  728,  hold- 
ing evidence  that  gifts  complete  and  not  made  under  undue  influence  necessary 
to  support  gifts  from  aged  woman  to  nephew  and  adviser;  Re  Swade,  65  App. 


6  L.R.A.  403]  L.  R.  A.  CASES  AS  AUTHORITIES.  1088 

Div.  595,  72  X.  Y.  Supp.  1030,  holding  gift  causa  mortis  by  one  sister  to  another 
evidenced  by  delivery  of  package  which  intestate  declared  in  presence  of  others 
contained  all  her  valuable  papers,  which  she  gave  to  donee;  Beaver  v.  Beaver. 
137  X.  Y.  63,  32  N.  Y.  Supp.  998,  Reversing  62  Hun,  205,  16  X.  Y.  Supp.  470, 
holding  evidence  failed  to  show  completed  gift;  Hamer  v.  Sidway,  57  Hun,  234, 
11  X.  Y.  Supp.  182,  holding  that  promise  to  give  nephew  sum  of  money  for  ab- 
staining from  certain  habits  until  specified  age,  but  without  delivery,  not  com- 
pleted gift;  Van  Slooten  v.  Wheeler,  39  N.  Y.  S.  R.  867,  15  X.  Y.  Supp.  591, 
holding  expression  of  intention  to  make  gift  of  ring,  followed  by  delivery,  valid 
transfer;  Krummel  v.  Thomas,  5  Misc.  537,  25  X.  Y.  Supp.  833,  holding  deposit 
in  bank  with  declaration  of  intent  to  give  if  donee  survive  donor  not  sufficient 
delivery;  Matson  v.  Abbey,  70  Hun,  477,  24  N.  Y.  Supp.  284,  holding  valid 
gift  created  by  delivery  of  sealed  assignment  of  insurance  money  due  assignors; 
Pickslay  v.  Starr,  59  N.  Y.  S.  R.  606,  27  N.  Y.  Supp.  616,  holding  donor's  own 
check  delivered  and  paid  to  donee  amounted  to  gift,  and  not  payment  on  ac- 
count of  salary;  Bump  v.  Pratt,  84  Hun,  205,  32  X.  Y.  Supp.  538,  holding 
delivery  of  bonds  to  one  person  for  third  constituted  valid  gift;  Gannon  v.  Mc- 
Guire,  160  X.  Y.  482,  73  Am.  St.  Rep.  694,  55  X.  E.  7,  Reversing  22  App. 
Div.  48,  47  X.  Y.  Supp.  870,  holding  gift  of  bond  and  mortgage  to  mortgagor, 
completed  by  delivery  to  her,  not  defeated  by  depositing  them  with  mortgagor 
for  safe  keeping;  Re  Small,  27  App.  Div.  444,  50  X.  Y.  Supp.  341,  holding 
gift  intended  to  be  made  by  brother  to  sister  not  consummated  by  giving 
her  credit  for  sum  on  books  of  partnership  of  which  he  was  member;  Re  Anthony, 
40  Misc.  498,  82  X.  Y.  Supp.  789,  holding  husband's  transfer  to  wife  of  money 
invested  in  his  firm,  with  expressed  intention  to  provide  for  her,  valid  gift; 
Wetherow  v.  Lord,  41  App.  Div.  416,  58  X.  Y.  Supp.  778,  holding  delivery  of 
check  by  husband  for  part  of  deposit  in  names  of  himself  and  wife,  together 
with  pass  book,  constituted  gift  of  his  half;  Gilkinson  v.  Third  Ave.  R.  Co.  47 
App.  Div.  473,  63  X.  Y.  Supp.  792,  holding  delivery  of  key  of  box  in  trust 
company's  vault  containing  certificates  of  stocks,  with  statement  they  were  for 
donee,  constituted  gift;  Main's  Appeal,  73  Conn.  642,  48  Atl.  965,  holding 
gift  not  created  by  deposit  which  depositor  said  she  wished  given  to  daughters 
after  her  death;  Telford  v.  Patton,  144  111.  625,  33  X.  E.  1119,  holding  gift  not 
effected  by  taking  certificate  of  deposit,  retained  by  depositor,  without  declara- 
tion of  trust,  in  another's  name;  Kirk  v.  McCusker,  3  Misc.  278,  22  X.  Y.  Supp. 
780,  holding  gift  causa  mortis  not  evidenced  by  delivery  of  pass  books,  where 
donor  subsequently  withdrew  part  of  account;  Liebe  v.  Battmann,  33  Or.  245, 
72  Am.  St.  Rep.  705,  54  Pac.  179,  holding  gift  not  disclosed  by  placing  note  in 
addressed  envelope  found  on  table  in  room  where  writer  shot  himself;  Rich- 
ardson v.  Emmett,  61  App.  Div.  213,  70  N.  Y.  Supp.  546,  holding  gift  created  by 
uncle's  assignment  of  stock  to  niece  and  declaration  that  he  had  given  it  to 
her  although  he  collected  dividends;  Gilkinson  v.  Third  Ave.  R.  Co.  47  App. 
Div.  475,  63  X.  Y.  Supp.  792,  holding  gift  created  by  placing  certificates  of  stock 
in  deposit  box  and  giving  donee  key.  donor  also  retaining  one;  Grouse  v.  Jud- 
son,  41  Misc.  342,  82  X.  Y.  Supp.  755,  holding  daughter  entitled  to  certificate 
of  stock  issued  in  her  name,  kept  in  safe  deposit  box  of  father,  who  had  stated 
he  had  given  it  to  her;  Allen-West  Commission  Co.  v.  Grumbles,  63  C.  C.  A. 
404,  129  Fed.  290,  holding  delivery  of  assignment  of  stock,  certificate  being  re- 
tained by  donor,  not  valid  gift;  McMahon  v.  Cronin  143  App.  Div.  846.  128 
N.  Y.  Supp.  723,  to  the  point  that  deposit  in  bank  in  another's  name  for  pur- 
pose of  conceding  depositor's  financial  condition  does  not  constitute  gift;  Hallen- 
beck  v.  Hallenbeck,  44  Misc.  112,  89  X.  Y.  Supp.  780,  holding  that  a  deposit 
coupled  with  the  words  "either  to  draw"  under  rules  of  bank  which  makes  pre- 


1089  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  403 

sentation  of  pass-book  necessary,  and  retention  of  book  by  depositor,  does  not 
show  a  complete  gift;  Re  Seigler,  49  Misc.  191,  98  N.  Y.  Supp.  929,  holding  that 
a  savings  account  in  name  of  oneself  and  son  "payable  to  either  or  survivor" 
and  retention  of  pass-book  by  depositor  does  not  constitute  a  gift;  Gick  v.  Stumpf, 
53  Misc.  88,  100  X.  Y.  Supp.  1109,  holding  that  a  writing  containing  declaration 
that  money  in  a  bank  is  given  to  a  son,  delivered  to  him  and  put  in  his  possession 
and  of  donor's  free  will,  is  evidence  of  a  valid  gift;  Re  Kline,  65  Misc.  447,  121 
N.  Y.  Supp.  1090,  holding  that  a  deposit  by  husband  and  wife  of  money  belonging 
to  each,  so  that  either  or  survivor  could  draw  out,  is  not  a  gift  inter  vivos,  but  a 
joint  ownership  with  the  incident  of  survivorship;  Schneider  v.  Schneider,  122 
App.  Div.  778,  107  N.  Y.  Supp.  792,  holding  that  a  bank  account  opened  in  the 
joint  names  of  husband  and  wife  with  direction  "to  pay  to  either  or  the  survivor" 
and  oral  agreement  that  one  half  should  be  hers  does  not  establish  a  gift  of  one 
half  the  deposit  to  the  wife;  Hill  v.  Escort,  38  T«?x.  Civ.  App.  490,  86  S.  W.  367, 
holding  that  delivery  of  pass-book  to  daughter  together  with  order  for  pay- 
ment is  a  valid  gift  though  book  and  order  are  not  presented  to  bank  until  after 
donor's  death;  Tobin  v.  Tobin,  139  Wis.  498,  121  X.  W.  144,  holding  that  a 
note  and  mortgage  made  by  a  father  in  his  son's  name  and  recorded,  but  nevei- 
given  nor  intended  to  be  given  to  son  who  knew  nothing  of  their  execution  is  not 
a  gift;  Augsbury  v.  Shurtliff,  180  X'.  Y.  146,  72  N.  E.  927,  holding  that  a  written 
direction  to  a  bank  in  which  a  husband  and  wife  have  separate  accounts,  to  merge 
them  and  make  them  payable  to  either  or  survivor  is  not  a  gift  inter  vivos; 
Robb  v.  Washington  &  J.  College,  185  N.  Y.  492,  78  XT.  E.  359  (modifying  103 
App.  Div.  348,  93  N.  Y.  Supp.  92),  holding  a  trust  declared  under  seal  was 
without  physical  delivery  of  possession  of  evidences  in  writing  of  the  obligations 
given. 

Cited  in  footnotes  to  Williamson  v.  Johnson,  9  L.  R.  A.  277,  which  holds 
gift  to  enable  fiance  to  pay  wedding  expenses  conditional  on  marriage;  Gam- 
mon Theological  Seminary  v.  Robbins,  12  L.  R.  A.  506,  which  holds  instrument 
declaring  that  holder  gives  note  which  he  retains  insufficient  as  gift;  Porter  v. 
Woodhouse,  13  L.  R.  A.  64,  which  holds  warranty  deeds  not  delivered  by  donor 
giving  to  third  person. 

Cited  in  notes  (19  L.  R.  A.  700)  on  delivery  of  bank  book  to  sustain  gift  of 
money  in  bank;  (21  L.  R.  A.  693)  on  undelivered  written  transfer  or  assign- 
ment of  property  as  a  gift;  (6  L.  R.  A.  515)  on  what  constitutes  gift  inter 
vivos;  (1  L.R.A.  (X.S. )  792)  on  bank  deposit  for  other  person  as  gift  or  transfer 
of  title;  (12  Eng.  Rul.  Cas.  434)  on  necessity  of  delivering  gift  intervivos. 

Distinguished  in  Moore  v.  Fingar,  131  App.  Div.  401,  115  XT.  Y.  Supp.   1035, 
holding  that  a  deposit  by  a  husband  in  the  names  of  himself  and  wife  "payable  to 
either  or  the  survivor"  imports  on  its  face  a  gift  to  her  with  absolute  title  to  her 
if  she  survives. 
Declarations   as   affecting:   trust   or   grift. 

Cited  in  Washington  v.  Bank  for  Savings,  171  X.  Y.  172,  89  Am.  St.  Rep.  800, 
63  N.  E.  831,  holding  declaration  of  decedent  that  she  never  had  children  ad- 
missible as  evidence  to  determine  character  of  deposits  made  by  her  in  names  of 
children;  O'Xeil  v.  Greenwood,  106  Mich.  579,  64  X.  W.  511,  holding  trust  created 
by  deposit  by  owner  of  evidences  of  indebtedness  with  bills  of  sale  in  envelopes, 
upon  which  names  of  donees  indorsed;  Millard  v.  Clark,  7  Misc.  369,  27  N.  Y. 
Supp.  631,  holding  declaration  of  trust  not  evidenced  by  investment  in  securities, 
with  statement  attached  showing  they  were  to  become  gift  only  on  death  of 
depositor;  Re  Gregg,  11  Misc.  156.  32  X.  Y.  Supp.  1103,  holding  that  declara- 
tions by  owner  that  son  owed  nothing  for  rent,  not  amount  to  release  in  absence 
of  receipt. 

L.R.A.  Au.  Vol.  I.— 69. 


6  L.R.A.  403]  L.  R.  A.  CASES  AS  AUTHORITIES.  1090 

Intention   us   affecting-    (rust. 

Cited  in  Wadd  v.  Hazc-lton,  137  N.  Y.  219,  21  L.  R.  A.  697,  33  Am.  St.  Rep.  707,. 
33  N.  E.  143,  Reversing  62  Hun,  608,  17  N.  Y.  Supp.  410,  holding  intended 
absolute  gift  failed  for  want  of  delivery,  and  could  not  be  enforced  as  declaration 
of  trust  in  absence  of  intent;  Hamer  v.  Sidway,  57  Hun,  237,  11  N.  Y.  Supp.  182. 
holding  letter  acknowledging  prior  promise  by  uncle  to  give  money  to  nephew, 
not  followed  by  deposit  for  him,  not  declaration  of  trust;  Skeen  v.  Marriott,  22 
Utah,  91,  61  Pac.  296,  holding  parol  trust  not  disclosed  by  declarations  of 
intention  to  provide  for  first  wife's  children  at  future  time ;  Hamilton  v.  Hall, 
111  Mich.  296,  69  N.  W.  484,  holding  trust  not  created  by  declaration  of  intention 
to  create  one;  Trubey  v.  Pease,  240  111.  521,  88  N.  E.  1005,  16  A.  &  E.  Ann.  Cas. 
370,  holding  that  a  delivery  of  personal  property  to  an  attorney  to  be  given  by  him 
to  specified  persons  and  an  expressed  intention  on  part  of  giver  to  write  donees 
is  no  sufficient  to  create  a  trust;  Hoffman  v.  Union  Dime  Savings  Institution. 
109  App.  Div.  27,  95  N.  Y.  Supp.  1045,  holding  that  while  delivery  of  bank-book 
might  pass  title  to  moneys  on  deposit  for  purpose  of  burial  and  masses,  the  book 
must  be  delivered  with  intent  to  create  such  trust. 
Liability  of  bank  for  paying  deposit. 

Cited  in  Kopf  v.  Dry  Dock  Sav.  Inst.  32  Misc.  35,  65  N.  Y.  Supp.  364,  holding 
by-law  of  savings  bank  in  which  wife  had  made  deposits  not  protect  bank  in 
paying  husband  on  her  decease. 

Cited  in  note  (105  Am.  St.  Rep.  741,  754)  on  duties  of  savings  bank  toward 
depositors. 

6  L.  R,  A.  409,  WHITEHEAD  v.  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  99  Mo.  263,- 11 

S.  W.  751. 
Carrier   and    passenger,    when    relation    exists. 

Cited  in  Simmons  v.  Oregon  R.  Co.  41  Or.  158,  69  Pac.  440,  and  Everett  v. 
Oregon  Short  Line  &  U.  N.  R.  Co.  9  Utah,  347,  34  Pac.  289,  holding  person  going 
in  good  faith  on  train  not  allowed  to  carry  passengers,  and  permitted  to  remain, 
passenger;  Spence  v.  Chicago,  R.  I.  &  P.  R.  Co.  117  Iowa,  9,  90  X.  W.  346,  and 
Berry  v.  Missouri  P.  R.  Co.  124  Mo.  249,  25  S.  W.  229,  holding  person  riding  on 
construction  train,  against  company's  rules  of  which  he  had  no  knowledge,  with 
conductor's  permission,  passenger;  Fitzgibbon  v.  Chicago  &  N.  W.  R.  Co.  108 
Iowa,  623,  79  N.  W.  477  (dissenting  opinion),  majority  holding  one  boarding 
special  excursion  train,  without  express  or  implied  invitation,  not  presumed 
passenger;  Birmingham,  R.  L.  &  P.  Co.  v.  Adams,  146  Ala.  272,  119  Am.  St. 
Rep.  27,  40  So.  385,  holding  that  one  need  not  be  a  common  carrier  to  be  liable 
for  negligent  injury  to  a  passenger  whom  he  accepts  and  undertakes  to  carry. 

Cited  in  footnotes  to  Mendenhall  v.  Atchison,  T.  &  S.  F.  R.  Co.  61  L.  R.  A.  120, 
which  holds  one  riding  on  platform  of  baggage  car  at  direction  of  brakeman,  to 
whom  money  paid,  not  a  passenger;  Chattanooga  Rapid  Transit  Co.  v.  Venable, 
51  L.  R.  A.  886,  which  holds  nightwatchman  at  depot  getting  on  train  to  an- 
nounce readiness  to'resume  duty,  a  passenger ;  Louisville  &  N.  R.  Co.  v.  Weaver, 
50  L.  R.  A.  381,  which  holds  station  agent  riding  on  train  without  paying  fare, 
several  hours  after  work  ended  a  passenger;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Head- 
land, 20  L.  R,  A.  822,  which  holds  presumption  that  person  on  train  a  passenger 
not  applicable  to  caboose  attached  to  freight  train. 

Cited  in  note  (61  Am.  St.  Rep.  85,  93,  95)  on  who  are  passengers  and  when 
they  become  such. 

Distinguished  in  Purple  v.  Union  P.  R,  Co.  57  L.  R.  A.  705,  51  C.  C.  A.  570, 
114  Fed.  129,  holding  one  riding  free  on  freight  train  by  permission  of  con- 


1091  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  409 

ductor,  knowing  passengers  prohibited,  not  passenger;  O'Donnell  v.  Kansas  City, 
St.  L.  &  C.  R.  Co.  197  Mo.  121,  114  Am.  St.  Rep.  753,  95  S.  W.  196,  holding  one 
allowed  to  ride  on  a  freight  train  by  a  brakeman  not  a  passenger. 
Duty  to  persona  riding  on  trains. 

Cited  in  Young  v.  Missouri  P.  R.  Co.  93  Mo.  App.  273,  holding  carrier's  duty 
toward  free  passenger,  same  as  toward  one  paying;  Buck  v.  People's  Street  R.  & 
Electric  Light  &  P.  Co.  108  Mo.  185,  18  S.  W.  1090,  holding  passenger  riding 
free  in  street  car  with  driver's  consent  entitled  to  same  degree  of  care  as  other 
passengers;  Hays  v.  \\abash  R.  Co.  51  Mo.  App.  443;  Guffey  v.  Hannibal  &  St. 
J.  R.  Co.  53  Mo.  App.  4G8 ;  Fullerton  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  84  Mo.  App. 
503;  Erwin  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  94  Mo.  App.  297,  08  S.  W.  88; 
Wait  v.  Omaha,  K.  C.  &  E.  R.  Co.  165  Mo.  621,  65  S.  W.  1028,  —  holding  same 
degree  of  care  required  toward  passenger  on  freight  as  on  passenger  train,  excep. 
that  passenger  assumes  risks  necessarily  incidental  to  running  of  such  train; 
McXeill  v.  Durham  &  C.  R.  Co.  135  X.  C.  721,  47  S.  E.  765,  holding  railroad  not 
liable  to  one  riding  gratuitously,  except  for  wilful  and  wanton  injury;  Berry  v. 
Mi>>ouri  P.  R.  Co.  124  Mo.  299,  25  S.  W.  229  (dissenting  opinion),  majority 
holding  railroad  liable  for  want  of  ordinary  care  to  persons  wrongfully  riding  on 
train  with  knowledge  of  crew;  Southern  R.  Co.  v.  Decker,  5  Ga.  App.  35.  62 
S.  E.  678,  holding  that  a  railway  company  owes  the  duty  of  exercising  ordin- 
ary care  and  diligence  to  a  person,  gratuitously  riding  on  train  by  consent  of 
conductor;  Green  v.  Missouri,  K.  &  T.  R.  Co.  121  Mo.  App.  726,  97  S.  W.  646, 
holding  the  fact  that  a  passenger  is  being  carried  on  a  freight  train  will  not 
relieve  a  railroad  company  for  negligence;  Bussell  v.  Quincy,  O.  &  K.  C.  R.  Co. 
125  Mo.  App.  447,  102  S.  W.  613,  holding  that  care  to  a  passenger  on  a  freight 
train  is  same  as  on  passenger  train  except  as  to  dangers  necessarily  attending 
that  mode  of  conveyance;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Ralston,  77  Kan.  201, 
93  Pac.  592,  holding  that  carrier  of  passengers  on  a  freight  train  is  bound  only 
to  use  such  diligence  as  the  train  is  susceptible  of  considering  its  construction  and 
use;  Richmond  v.  Missouri  P.  R.  Co.  133  Mo.  App.  471,  113  S.  W.  708,  on  duty 
carrier  owes  to  one  riding  on  a  freight  train:  McXeill  v.  Durham  &  C.  R.  Co. 
135  X.  C.  721,  67  L.R.A.  245,  47  S.  E.  765  (dissenting  opinion),  on  duty  of 
carrier  to  one  accepting  free  transportation;  St.  Louis  &  S.  F.  R.  Co.  v.  Gosnell, 
23  Okla.  591,  22  L.R.A.  (X.S.)  893,  101  Pac.  1126,  holding  mere  fact  that  a 
freight  train  is  stopped  with  a  jar  not  sufficient  to  establish  negligence. 

Cited  in  notes  (10  L.R.A. (X.S.)  384)  on  liability  of  railroad  for  injury  by 
servant  to  passenger  in  use  of  dangerous  agency:  (37  L.R.A.  (N.S.)  423)  on 
liability  of  railroad  to  person  wrongfully  on  train  by  collusion  with  employee. 

Distinguished  in  Padgitt  v.  Moll,  159  Mo.  150,  52  L.  R.  A.  855,  81  Am.  St.  Rep. 
347,  60  S.  W.  121,  holding  newsboy  jumping  on  and  off  street  car  entitled  only 
to  ordinary-  care;  Crawleigh  v.  Galveston,  H.  &  S.  A.  R.  Co.  28  Tex.  Civ.  App.  265, 
67  S.  W.  140,  holding  railroad  not  liable  for  killing  of  person  riding  on  freight 
train  unknown  to  train  crew,  though  resulting  from  gross  negligence. 
Hiulit  to  prohibit  passengers  riding:  on  freight  trains. 

Cited  in  Burke  v.  Missouri  P.  R.  Co.  51  Mo.  App.  498,  holding  railroad  not 
bound  to  carry  passengers  on  freight  trains;  Farber  v.  Missouri  P.  R.  Co.  116 
Mo.  92,  20  L.  R.  A.  353,  22  S.  W.  631,  holding  that  constitutional  declaration  that 
railroads  are  public  highways  does  not  authorize  persons  to  ride  without  com- 
pany's consent;  Gardner  v.  St.  Louis  &  S.  F.  R.  Co.  117  Mo.  App.  145,  93  S.  W. 
917,  holding  that  a  railway  company  may  prescribe  rules  for  those  riding  ou 
freight  trains;  St.  Louis  &  S.  F.  R.  Co.  v.  Cox,  26  Okla.  334.  109  Pac.  511, 
holding  railroad  liable  to  passenger  on  freight  train  for  injuries  caused  by  jerk- 


6  L.RJL  409]  L.  R.  A.  CASES  AS  AUTHORITIES.  1092 

ing  train  after  it  had  stopped  at  platform,  and  after  he  was  directed  by  con- 
ductor to  alight. 
Liability  of  master  for  servant's  torts. 

Cited  in  notes  (19  Am.  St.  Rep,  713)  on  master's  liability  for  servant's 
acts;  (18  L.R.A.  (N.S. )  416)  on  liability  for  tort  committed  by  servant  with  a 
view  of  furtherance  of  master's  business,  but  contrary  to  express  instructions. 

6  L.  R.  A.  412,  NICHOLS,  S.  &  CO.  v.  CRAXDALL,  77  Mich.  401,  43  N.  W.  875. 
Farol   agreement   adding   to   or   varying   written    instrument. 

Followed  in  Zimmerman  Mfg.  Co.  v.  Dolph,  104  Mich.  285,  62  N.  W.  339,  hold- 
ing evidence  of  verbal  warranties  of  windmill  sold  under  written  contract  with 
express  warranties  inadmissible. 

Cited  in  M.  Rumely  &  Co.  v.  Emmons,  85  Mich.  518,  48  N.  W.  636,  holding  con- 
temporaneous verbal  warranty  merged  in  written  contract;  H.  W.  Williams 
Transp.  Line  v.  Darius  Cole  Transp.  Co.  129  Mich.  212,  56  L.  R.  A.  942,  88  N.  W. 
473,  holding  verbal  representations  as  to  speed  of  steamer  merged  in  written 
guaranty;  McCray  Refrigerator  &  Cold  Storage  Co.  v.  Woods,  99  Mich.  273,  41 
Am.  St.  Rep.  599,  58  N.  W.  320,  holding  verbal  warranty  cannot  be  imported 
into  written  contract  silent  on  subject;  John  Hutchison  Mfg.  Co.  v.  Pinch,  107 
Mich.  14,  64  N.  W.  729,  holding  parol  evidence  enlarging  requirement  stated  in 
written  order  inadmissible;  Quinn  v.  Moss,  45  Neb.  617,  63  N.  W.  931,  and  Cohen 
v.  Jackoboice,  101  Mich.  417,  59  N.  W.  665,  holding  parol  evidence  inadmissible 
to  vary  terms  of  written  order  containing  all  indicia  of  contract;  McCrath  v. 
Myers,  126  Mich.  213,  85  X.  W.  712,  raising,  without  deciding,  question,  whether 
agreement  to  forfeit  purchase  money  mortgage  on  failure  to  procure  good  title 
provable  by  parol;  Detroit  Shipbuilding  Co.  v.  Comstock,  144  Mich.  519,  108  X. 
W.  286,  holding  where  a  steam  boiler  is  sold  by  a  written  contract  in  which  no 
warranty  is  made  the  only  warranty  that  can  be  asserted  is  an  implied  one. 

Cited  in  notes  (21  Am.  St.  Rep.  122)  on  parol  evidence  as  to  writing;  (19 
L.R.A.  (X.S. )  1196)  on  right  to  show  parol  warranty  in  connection  with  contract 
of  sale  of  personalty. 

Distinguished  in  Richey  v.  Daemicke,  86  Mich.  648,  49  N.  W.  516,  holding 
guaranty  attached  to  bill,  not  constituting  agreement,  does  not  render  evidence 
of  verbal  agreement  inadmissible;  Johnson  v.  Bratton,  112  Mich.  323,  70  N.  W. 
1021,  holding  parol  evidence  admissible  to  show  mortgage  for  specific  sum  in- 
tended to  secure  future  advances  by  mortgagee's  firm ;  Gregory  v.  Lake  Lindon, 
130  Mich.  374,  90  N.  W.  29,  holding  evidence  that  village  had  other  supply  ad- 
jnissible  to  explain  contract  to  purchase  water;  Grand  Lodge,  A.  O.  U.  W.  v. 
Beath,  151  Mich.  666,  114  X.  W.  662,  holding  where  goods  are  by  writing 
ordered  from  a  catalogue  that  warranties  advertised  in  catalogue  are  to  be 
taken  in  connection. 

6  L.  R.  A.  416,  ALLIX  v.  COXXECTICUT  RIVER  LUMBER  CO.  150  Mass.  560, 

23  N.  E.  581. 
Jurisdiction. 

Cited  in  Ellen  wood  v.  Marietta  Chair  Co.  158  U.  S.  107,  39  L.  ed.  914,  15  Sup. 
Ct.  Rep.  771,  holding  trespass  quare  clausum  with  count  for  conversion  of  timber 
cut  maintainable  only  in  state  where  land  situated;  Du  Brouil  v.  Pennsylvania 
Co.  130  Ind.  139,  29  X.  E.  909,  holding  trespass  for  injuries  to  land  in  another 
state  by  fire  maintainable  only  at  situs  of  land;  Little  v.  Chicago.  St.  P.  M.  & 
O.  R.  Co.  65  Minn.  55,  33  L.  R.  A.  425,  footnote,  p.  423,  60  Am.  St.  Rep.  421,  67 
N.  W.  846  (dissenting  opinion),  majority  holding  trespass  maintainable  though 
land  situated  in  another  state;  Huntington  v.  Attrill,  146  U.  S.  670,  36  L.  ed. 


1093  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  418 

1128,  13  Sup.  Ct.  Rep.  224,  holding  statutory  liability  of  officers  for  corporate 
debts  enforceable  in  any  jurisdiction;  Merriman  v.  Currier,  191  Mass.  141,  77 
N.  E.  708,  holding  where  a  lien  proceeding  is  brought  against  the  owners  of  a 
vessel  instead  of  against  the  vessel  the  defect  is  one  of  substance  affecting  juris- 
diction of  court;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Jackson,  83  Ohio  St.  18, 
03  N.  E.  260,  21  Ann.  Cas.  1313,  holding  that  action  for  trespass  on  lands  in 
another  state  cannot  be  maintained  in  this  state. 

Cited  in  footnotes  to  Schmaltz  v.  York  Mfg.  Co.  59  L.  R,  A.  907,  which  sus- 
tains jurisdiction  in  equity  by  resident,  of  suit  to  enjoin  removal  of  alleged 
fixtures  from  land  in  another  state  on  which  plaintiff  has  mortgage. 

Cited  in  note   (26  L.R.A.  (X.S.)   936)   on  jurisdiction  of  action  for  damages  for 
breach  of  contract,  or  for  tort  concerning  realty  in  another  state  or  country. 
Plea   in   abatement   or  in  bar. 

Cited  in  Guild  v.  Bonnemort,  156  Mass.  523,  31  N.  E.  645,  holding  plea  of 
wrong  venue,  merely  in  abatement,  not  to  jurisdiction;  Davis  v.  Carpenter,  172 
Mass.  172,  51  N.  E.  530,  holding  plea  showing,  not  only  present  action  not  main- 
tainable, but  also  no  cause  of  action,  plea  in  bar;  Hey  v.  Prime,  197  Mass.  475r 
17  L.R.A.  (N.S. )  571,  84  X.  E.  141,  holding  where  declaration  and  opinion  show 
that  a  cause  of  action  does  not  survive  that  successor  might  move  to  dismiss 
though  HO  demurrer  has  been  filed. 
Review  on  appeal. 

Cited  in  Puritan  Trust  Co.  v.  Coffey,  180  Mass.  512,  62  N.  E.  970,  holding  de- 
cision of  superior  court  on  plea  of  nonjoinder  not  subject  to  review  on  appeal ; 
Brown  v.  Kellogg,  182  Mass.  299,  65  N.  E.  378,  Reversing  judgment  of  superior 
court  dismissing  for  want  of  jurisdiction,  on  motion,  for  defects  of  form;  Kimball 
v.  Sweet,  168  Mass.  106,  46  N.  E.  409,  holding  that  appeal  lies  from  decision  on 
motion  to  dismiss  for  service  of  summons  insufficient  to  give  jurisdiction. 

Distinguished  in  Burrows  v.  Morton,  170  Mass.  570,  49  N.  E.  924,  holding  de- 
cision of  municipal  court  on  motion  to  dismiss  for  defect  in  complaint,  final. 

6  L.  R.  A.  418,  ILLINOIS  C.  R.  CO.  v.  SLATER,  129  111.  91,  16  Am.  St.  Rep. 
242,  21  X.  E.  575. 

Action  for  death  of  other  son  killed  in  same  accident  in  Illinois  C.  R,  Co.  v. 
Slater,  139  111.  190,  28  N.  E.  830. 
Speed   of  car   or   train   n«   negligence. 

Cited  in  Chicago  City  R.  Co.  v.  Fennimore,  199  111.  15,  64  N.  E.  985,  holding 
it  duty  of  street  cars  not  to  approach  crossings  at  dangerous  speed,  independent 
of  statute;  Landon  v.  Chicago  &  G.  T.  R.  Co.  92  111.  App.  222,  holding  it  duty  of 
railroad  not  to  cross  highways  at  dangerous  speed,  independent  of  statutory 
regulation. 
Negligence;  failure  to  perform  statutory  duty. 

Cited  in  Platte  &  D.  Canal  &  Mill.  Co.  v.  Dowell,  17  Colo.  386,  30  Pac.  68, 
holding  failure  to  perform  statutory  duty  to  cover  power  canal  negligence  per  se. 

Cited  in  notes   (7  L.R.A.  316)    on  duty  to  signal  approach  to  highway  cross- 
ing;   (20  Am.  St.  Rep.   114)    on  duty  of  railroad  company  toward  persons  ap- 
proaching track. 
Evidence   of   failure   to   give   signala   at   crossings. 

Cited  in  Peirce  v.  Sparks,  05  111.  App.  354,  holding,  where  evidence  conflicting' 
as  to  giving  signals  at  railroad  crossing,  verdict  will  not  be  disturbed;  St.  Louis, 
A.  &  T.  H.  R.  Co.  v.  Odum,  52  111.  App.  523.  holding  testimony  of  witnesses  with 
opportunity  to  see  and  know,  that  bell  was  not  rung  at  crossing  so  far  as  they 
heard,  not  negative. 


6  L.R.A.  418]  L.  R.  A.  CASES  AS  AUTHORITIES.  1094 

Cited  in  note    (20  Am.  St.  Rep.  452)    on  duty  of  railroad  company  to  warn 
persons    on    track. 
Duty  of  traveler  at  railroad  crossing. 

Cited  in  footnote  to  Passman  v.  West  Jersey  &  S.  R.  Co.  61  L.  R.  A.  609,  which 
holds  cutting  of  train  on  side  track  at  highway  crossing  not  invitation  to  cross 
without   using  ordinary   precaution. 
Contributory    negligence    of    children. 

Cited  in  Wabash  R.  Co.  v.  Jones,  53  111.  App.  133 ;  Quincy  &as  &  Electric  Co.  v. 
Bauman,  104  111.  App.  610;  Baltimore  &  0.  S.  W.  R.  Co.  v.  Then,  159  111.  538, 
42  N.  E.  97,  Affirming  59  111.  App.  565,  —  holding  child  required  to  exercise  ordi- 
nary care  according  to  age,  capacity,  and  discretion;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Roemer,  59  111.  App.  97;  Chicago  v.  McCrudden,  92  111.  App.  259;  Illinois  Iron 
&  Metal  Co.  v.  Weber,  196  111.  531,  63  1ST.  E.  1008,  —  holding  intelligence,  capac- 
ity, and  experience,  as  well  as  age  of  child,  to  be  considered  upon  question  of 
exercise  of  care;  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Moore,  110  111.  App.  307. 
holding  intelligence,  as  well  as  age  and  experience,  should  be  considered  in  deter- 
mining child's  negligence;  Lake  Erie  &  W.  R.  Co.  v.  Klinkrath,  227  111.  442, 
81  N.  E.  377.  holding  that  experience  of  a  child  is  an  important  element  in  ques- 
tion of  contributory  negligence;  Economy  Light  &  P.  Co.  v.  Hiller,  113  111.  App. 
106,  holding  that  intelligence  of  child  is  to  be  considered;  Coleman  v.  •Himmel- 
berger-Harrison  Land  &  Lumber  Co.  105  Mo.  App.  272,  79  S.  W.  981,  on  the 
degree  of  care  due  from  a  minor. 

Cited  in  footnote  to  Gleason  v.  Smith,  55  L.  R.  A.  622,  which  denies  liability 
for  injury  by  collision  with  team,  to  twelve  year  old  boy  using  street  as  play- 
ground. 

Cited  in  notes   (8  L.  R.  A.  843)    on  care  to  be  exercised  towards  children  to 
avoid  injuries;    (6  L.R.A.  537)   as  to  imputing  contributory  negligence  to  infant; 
(49  Am.  St.  Rep.  409)   on  contributory  negligence  of  children. 
Damages   for  death   of   minor. 

Cited  in  Illinois  C.  R.  Co.  v.  Reardon,  157  111.  378,  41  N.  E.  871,  holding,  in 
action  for  minor's  death,  loss  of  right,  to  wages  until  majority  not  measure  of 
damages;  Chicago  &  A.  R.  Co.  v.  Logue,  58  111.  App.  151,  holding  verdict  of 
$1,500  for  death  of  child  twenty-one  months  old  not  excessive;  United  States 
Electric  Lighting  Co.  v.  Sullivan,  22  App.  D.  C.  136,  holding  father  may  recover 
probable  amount  of  son's  contributions  both  during  and  after  minority,  in  action 
for  negligently  causing  son's  death. 

Cited  in  note   (41  L.  R.  A.  809)    on  common-law  right  of  action  of  parent  for 
loss  of  service  of  child  killed. 
Imputed   negligence. 

Cited  in  note  (9  L.  R.  A.  159)  on  imputing  driver's  negligence  to  passenger. 
Sufficiency  of  allegations  of  negligence. 

Cited  in  note  (59  L.  R.  A.  226)  on  sufficiency  of  general  allegations  of  neg- 
ligence. 

6  L.  R.  A.  422,  STATE  ex  rel.  COPE  v.  FORAKER,  46  Ohio  St.  677,  23  X.  E.  491. 
Amendments  to  constitutions. 

Cited  in  Bear  v.  Heasley,  98  Mich.  308,  24  L.  R.  A.  621,  57  X.  W.  270,  holding 
amendment  to  constitution  of  religious  society,  to  be  valid,  must  be  adopted  ac- 
cording to  provisions  of  constitution;  State  ex  rel.  McClurg  v.  Powell,  77  Miss. 
576,  48  L.  R.  A.  658.  27  So.  927,  holding  greater  strictness  of  procedure  required 
in  adoption  of  constitutional  amendments  than  in  passage  of  acts  of  legislature: 
3IcConaughy  v.  Secretary  of  State,  106  Minn.  401,  119  X.  W.  408.  holding 


L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  424 

that  the  court  has  power  to  determine  whether  a  constitutional  amendment  has 
been  legally  submitted  to  and  adopted  by  the  people. 
"What    constitute**    majority    vote. 

Cited  in  Re  Denny,  156  Ind.  119,  51  L.  R.  A.  729,  footnote,  p.  722,  59  X.  E. 
359,  holding  that  constitutional  provision  that  amendments  must  be  ratified  by 
"majority  of  electors"  requires  majority  of  all  persons  voting  at  election  for  any 
purpose;  State  ex  rel.  McClurg  v.  Powell,  77  Miss.  576,  48  L.  R.  A.  660,  27  So. 
•927,  holding  constitutional  provision  that  amendments  must  receive  majority  of 
electors  "voting"  requires  majority  of  all  votes  cast  for  any  purpose;  Stebbins  v. 
Superior  Ct.  Judge,  108  Mich.  699,  66  X.  W.  594,  holding  majority  of  all  persons 
voting  necessary  under  city  charter  authorizing  issue  of  bonds  when  favored  by 
majority  of  votes  cast;  Bryan  v.  Lincoln,  50  Xeb.  628,  35  L.  R.  A.  755,  70  N.  W. 
252,  holding  that  proposition  must  receive  majority  of  all  votes  cast  at  election, 
tinder  statute  permitting  funding  of  city  bonds  when  authorized  by  vote  of 
people;  Belknap  v.  Louisville,  99  Ky.  483,  34  L.  R,  A.  260,  59  Am.  St.  Rep.  478, 
36  S.  W.  1118,  holding  assent  of  two  thirds  of  all  persons  voting,  necessary,  under 
constitutional  provision  requiring  consent  of  two  thirds  of  persons  voting  at 
election  to  authorize  special  municipal  indebtedness;  Knight  v.  Shelton,  134  Fed. 
428,  holding  that  to  have  a  majority  of  all  electors  voting  at  a  certain  election, 
the  question  must  receive  a  majority  of  all  voters,  though  some  neglect  to  vote  on 
the  particular  question;  Eufaula  v.  Gibson,  22  Okla.  523,  98  Pac.  565,  holding 
that  to  change  a  county  seat  under  constitution  that  it  must  appear  that  a  ma- 
jority all  votes  cast  though  some  are  unintelligible  were  cast  in  favor  of  removal. 

Cited  in  notes  (6  L.R.A.  311)  on  majority  vote;  (22  L.R.A.(XT.S.)  480)  on 
basis  for  computation  of  majority  essential  to  adoption  of  proposition  sub- 
mitted at  general  election. 

Distinguished  in  Davis  v.  Brown,  46  YV.  Va.  720,  34  S.  E.  839,  holding  that 
statute  for  relocation  of  county  seat,  providing  three  fifths  of  all  votes  cast 
favor  it,  requires  three  fifths  of  votes  of  those  voting  on  proposition. 

6  L.  R.  A.  424,  DRYSDALE  v.  STATE,  83  Ga.  744,  20  Am.  St.  Rep.  340,  10  S. 

E.  358. 
Justifiable  homicide. 

Cited  in  footnote  to  State  v.  Yanz,  54  L.  R.  A.  780.  which  holds  killing  person 
believed  to  be  in  act  of  adultery  with  killer's  wife,  manslaiighter  only. 

Cited  in  note  (18  L.R.A. (X.S.)  689)  on  assault  to  prevent  future  seduction  of 
or  adultery  with  wife. 

Distinguished  in  Wilkerson  v.  State,  91  Ga.  732,  44  Am.  St.  Rep.  63,  17  S.  E. 
990,  holding  wife's  seducer  justified  in  defending  himself  against  assault  of  hus- 
band knowing  of  wife's  infidelity  and  lying  in  wait;  Gossett  v.  State,  123  Ga.  434, 
51  S.  E.  394,  holding  that  the  law  will  not  justify  deliberate  revenge  for  a 
past  wrong  to  daughter  however  grievous;  O'Shields  v.  State,  125  Ga.  314, 
54  S.  E.  120.  holding  same  where  there  was  improper  relation  with  wife  a  short 
time  before  the  attack. 
Homicide  in  self-defense. 

Cited  in  footnotes  to  State  v.  Bartlett,  59  L.  R.  A.  756.  which  sustains  right 
to  use  deadly  weapon  to  defend  from  public  whipping  by  physical  superior;  Peo- 
ple v.  Hecker,  30  L.  R.  A.  403.  which  upholds  right  of  one  attempting  to  witli- 
•draw  from  affray  commenced  by  him,  to  kill  in  self-defense;  People  v.  Button,  28 
L.  R.  A.  591,  which  holds  right  of  self-defense  not  cut  off  merely  because  one  was 
original  aggressor;  State  v.  Evenson.  64  "L.  R.  A.  77.  which  holds  one  whose  in-- 
orderly conduct  has  caused  attempt  to  compel  him  to  leave  town  justified  in 
using  necessary  force  to  repel  attack. 


6  L.R.A.  424]  L.  K.  A.  CASES  AS  AUTHORITIES.  109ft 

Cited  in  note  (45  L.  R  A.  687,  696)  on  self-defense  set  up  by  accused  who 
began  conflict. 

Distinguished  in  Brown  v.  State.  135  Ga.  658,  70  S.  E.  329,  holding  that  one 
does  not  forfeit  his   right  to  defend   himself  against   assault  solely   because   he 
may  have  been  guilty  of  wrongful  act  in  past. 
Rigrht  to  protect  home  and  property. 

Cited  in  Miller  v.  State,  5  Ga.  App.  466,  63  S.  E.  571,  holding  that  a  dog. 
which  makes  a  practice  of  killing  sheep  might  be  killed  by  a  sheep  owner 
though  not  killing  sheep  at  time. 

6  L.  R.  A.  426,  PHINIZY  v.  MURRAY,  83  Ga.  747,  20  Am.  St.  Rep.  342,   10 

S.  E.  358. 
To   whom   dividends   on   stock   belong;. 

Cited  in  Ho  user  v.  Richardson,  90  Mo.  App.  142,  holding  dividends  go  to 
holder  of  stock  at  time  they  are  declared  payable. 

Cited  in  note  (45  L.  R.  A.  397)  on  right  to  dividends  on  transfer  of  stock. 

Distinguished  in  Clark  v.  Campbell,  23  Utah,  575,  54  L.  R.  A.  512,  90  Am.  St. 
Rep.  716,  65  Pac.  496,  holding  dividends  declared  on  mining  stock,  held  in 
escrow,  before  price  paid,  do  not  belong  to  purchaser. 

6  L.  R.  A.  427,  REGER  v.  O'NEAL,  33  W.  Va.  159,  10  S.  E.  375  . 
Commissioner's    report. 

Cited  in  Taylor  v.  Dorr,  43  W.  Va.  353,  27  S.  E.  317;  Wallis  v.  Neale,  43 
W.  Va.  539,  27  S.  E.  227;  Pendleton  v.  Bower,  49  W.  Va.  149,  38  S.  E.  487; 
Carter  v.  Gill,  47  W.  Va.  507,  35  S.  E.  828;  Cann  v.  Cann,  45  W.  Va.  504,  31 
S.  E.  923;  Fry  v.  Teamster,  36  W.  Va.  466,  15  S.  E.  253;  Bennett  v.  Harper,  36 
W.  Va.  551,  15  S.  E.  143;  Schuttler  v.  Brandfass,  41  W.  Va.  211,  23  S.  E.  808; 
Stewart  v.  Stewart,  40  W.  Va.  84,  20  S.  E.  862;  Crothers  v.  Crothers,  40  W.  Va. 
174,  20  S.  E.  927;  Hartman  v.  Evans,  38  W.  Va.  677,  18  S.  E.  810;  Burns  v. 
Hays,  44  W.  Va.  506,  30  S.  E.  101;  Dewing  v.  Button,  48  W.  Va.  579.  37  S.  E. 
670;  Dearing  v.  Selvey,  50  W.  Va.  18,  40  S.  E.  478,  —  sustaining  commissioner's 
report  when  approved  by  lower  court;  Poling  v.  Parsons,  38  W.  Va.  81,  18  S.  E. 
379,  sustaining  decision  of  chancellor  on  conflicting  evidence,  though  appellate 
court  might  have  come  to  different  conclusion;  Holt  v.  Taylor,  43  YV.  Va.  IfiO.  27 
S.  E.  320,  holding  that  evidence  did  not  sustain  commissioner's  findings ;  Hillings 
v.  Hulings  Lumber  Co.  38  W.  Va.  370,  18  S.  E.  620,  holding  that  findings  of  com- 
missioner in  chancery  have  great  weight,  but  conclusions  as  to  absence  of  fraud 
not  sustained;  Haymond  v.  Camden,  48  W.  Va.  465,  37  S.  E.  642,  holding  finding 
of  commissioner  should  not  be  arbitrarily  changed  by  lower  court;  State  v.  King, 
64  W.  Va.  567,  63  S.  E.  468;  Allen  v.  Maxwell,  56  W.  Va.  236,  49  S.  E.  242,— 
holding  a  finding  of  a  commissioner  of  the  court  should  be  given  great  weight, 
though  not  as  conclusive  as  findings  of  a  jury;  Baker  v.  Jackson,  65  W.  Va.  283, 
64  S.  E.  32,  holding  that  findings  should  be  sustained  unless  not  warranted  by 
any  reasonable  view  of  the  evidence. 
"What  is  nsnrions  transaction. 

Cited  in  Rushing  v.  Worsham,  102  Ga.  830.  30  S.  E.  541,  holding  usurious 
transaction  not  disclosed  by  charging  more  than  legal  interest  ovor  cash  price 
on  sale  of  goods  on  time;  Bang  v.  Phelps  &  B.  Windmill  Co.  96  Tenn.  365.  34 
S.  W.  516,  holding  that  provision  in  note  for  more  than  legal  rate  after  ma- 
turity renders  it  usurious;  First  Nat.  Bank  v.  Mann,  94  Tenn.  24.  27  L.  R.  A.  568r 
27  S.  W.  1015,  holding  note  for  difference  between  cash  and  credit  price  of  goods 
bought  on  credit,  not  usurious  though  put  in  form  of  interest  and  more  than, 


1097  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  430 

legal  rate;  Swayne  v.  Riddle,  37  W.  Va.  295,  16  S.  E.  512,  holding  agreement  to 
pay  money  in  excess  of  legal  rate  of  interest,  but  as  part  of  purchase  price  of 
land,  not  usurious;  Crim  v.  Post,  41  W.  Va.  403,  23  S.  E.  613,  holding  subsequent 
agreement,  in  effect  renewing  former  usurious  transaction,  not  purge  it  of  usury; 
Davidson  v.  Davis,  59  Fla.  473,  28  L.R.A. (N.S.)  104,  52  So.  139,  20  Ann. 
Cas.  1130,  to  the  point  that  difference  between  cash  and  credit  price  may  be  put 
into  form  of  interest  on  note  for  purchase  price  without  violating  usury  law; 
Dickson  v.  St.  Paul,  105  Minn.  168,  117  N.  W.  426,  holding  that  sale  of  chose  in 
action  at  discount  of  more  than  ten  per  cent  is  not  usurious;  Waldron  v.  Pigeon 
Coal  Co.  61  W.  Va.  285,  56  S.  E.  492,  holding  that  there  can  be  no  usury  in  case 
of  sale  of  property. 

Cited  in  note  (46  Am.  St.  Rep.  182)  on  what  transactions  are  usurious. 
Computing:    interest. 

Cited  in  Archer  v.  Baltimore  Bldg.  &  L.  Asso.  45  W.  Va.  39,  30  S.  E.  241, 
holding  that  interest  payable  monthly  cannot  be  compounded  by  commissioner 
on  failure  of  payment;  Moore  v.  Johnson,  34  W.  Va.  676,  12  S.  E.  918,  holding 
makers  of  note  entitled  to  credit  for  interest  paid  in  excess  of  legal  rate. 
Application  of   usurious  payments  of  interest. 

Cited  in  Miller  v.  Prudential  Bkg.  &  T.  Co.  63  W.  Va.  117,  59  S.  E.  977; 
Lorentz  v.  Pinnell,  55  W.  Va.  121,  46  S.  E.  796, — holding  that  usurious  payments 
of  interest  should  be  applied  as  partial  payments  of  debt. 

6  L.  R.  A.  430,  COOPER  v.  PEOPLE,  13  Colo.  337,  22  Pac.  790. 
Review    of    judgment    for    contempt. 

Cited  in  Wyatt  v.  People,  17  Colo.  256,  28  Pac.  961,  holding  judgment  in  con- 
tempt proceedings  not  to  preclude  inquiry  into  jurisdiction  on  appeal;  Shore  v. 
People,  26  Colo.  484,  58  Pac.  590,  dismissing  appeal  from  judgment  imposing 
penalty  for  contempt;  Aichele  v.  Johnson,  30  Colo.  465,  71  Pac.  367,  holding 
writ  of  error  appropriate  remedy  to  review  judgment  in  contempt  proceeding; 
State  v.  Markuson,  5  N.  D.  150,  64  N.  W.  934,  holding  proceedings  adjudging 
contempt  for  violating  injunction  reviewable  on  writ  of  error;  Miskimmins  v. 
Shaver,  8  Wyo.  415,  49  L.  R.  A.  839,  58  Pac.  411,  holding  jurisdiction  of  court 
in  adjudging  contempt  reviewable  on  habeas  corpus;  Re  Stidger,  37  Colo.  420, 
86  Pac.  219,  holding  that  the  proper  remedy  for  review  of  a  judgment  for  con- 
tempt is  by  writ  of  error:  Martin  v.  District  Ct.  37  Colo.  117,  119  Am.  St.  Rep. 
262,  86  Pac.  82,  holding  that  one  district  court  has  no  power  to  review  or  super- 
vise by  habeas  corpus  the  judgment  of  another  such  court ;  People  ex  rel.  Y\  ay- 
man  v.  Zimmer,  252  111.  20,  96  N.  E.  529,  to  the  point  that  district  court  has  no 
authority  to  release  prisoner  under  commitment  for  criminal  contempt  in  court 
which  had  jurisdiction. 

Cited  in  note  (22  Am.  St.  Rep.  418)  on  relief  of  party  convicted  of  contempt. 
Power  to  punish  for  contempt. 

Cited  in  Wyatt  v.  People,  17  Colo.  260,  28  Pac.  961,  holding  contempt  pro- 
ceedings not  affected  by  constitutional  provisions;  People  ex  rcl.  Connor  v.  Staple- 
ton,  18  Colo.  581,  23  L.  R.  A.  791,  33  Pac.  167,  holding  power  to  punish  for  con- 
tempt inherent  in  superior  courts,  independent  of  statutory  provisions;  People 
ex  rel.  Connor  v.  Stapleton,  18  Colo.  584.  23  L.  R.  A.  792.  33  Pac.  167,  holding 
that  punishment  for  contempt  extends  only  to  fine  and  imprisonment;  State  v. 
Sweetland,  3  S.  D.  506,  54  X.  \V.  415.  holding  power  to  punish  for  contempt 
limited  to  articles  calculated  to  intimidate,  influence,  or  obstruct  courts  in  ad- 
ministration of  justice;  Re  C'hadwick,  109  Mich.  600.  67  X.  W.  1071,  holding 
power  to  punish  for  eonteinpt  inherent  in  court;  People  ex  rel.  Connor  v.  Staple- 


6  L.R.A.  430]  L.  R.  A.  CASES  AS  AUTHORITIES.  1098 

ton,  18  Colo.  574,  23  L.  R.  A.  789,  33  Pac.  167,  sustaining  court's  power  to  punish 
as  contempt,  newspaper's  charge  that  boocllers  have  influence  with   court. 

Cited  in  footnote  to  State  v.  Bee  Pub.  Co.  50  L.  R.  A.  195,  which  sustains  pun- 
ishment for  contempt  of  newspaper  publishing  articles  threatening  judges  with 
public  odium  if  they  decide  pending  cause  in  certain  way. 

Cited  in  notes   (117  Am.  St.  Rep.  951,  961)    on  courts,  tribunals  and  persons 
authorized  to  punish  contempts;    (15  Eng.  Rul.  Gas.   159)    on  power  of  courts 
to  punish  for  contempt. 
"What  is  contempt. 

Cited  in  Mullin  v.  People,  15  Colo.  440,  9  L.  R.  A.  568,  22  Am.  St.  Rep.  414, 
24  Pac.  880,  holding  contempt  not  shown  by  statement  in  motion  papers  for 
change  of  venue,  that  wife  of  judge  made  favorable  remark  concerning  case; 
Reeves  v.  People,  2  Colo.  App.  199,  29  Pac.  1033,  holding  party  to  replevin  action, 
who,  knowing  judgment  against  him,  removes  goods  from  jurisdiction  of  courts, 
properly  punished  for  contempt;  Bloom  v.  People,  23  Colo.  418,  48  Pac.  519, 
holding  publication  relating  to  judge's  decisions  contemptuous;  Field  v.  Thornell, 
106  Iowa,  16,  68  Am.  St.  Rep.  281,  75  N.  W.  685,  holding  editor  in  contempt  for 
article  he  handed  to  jurors  reflecting  on  character  and  sanity  of  witnesses  and 
ability  of  jury;  Re  Hughes,  8  N.  M.  242,  43  Pac.  692,  holding  publication  com- 
menting on  pending  disbarment  proceedings  punishable  contempt,  though  pub- 
lisher disclaimed  intention  to  reflect  on  court;  State  v.  Tugwell,  19  Wash.  255, 
43  L.  R.  A.  723,  52  Pac.  1056,  holding  newspaper  publication,  reflecting  on  in- 
tegrity of  court  pending  appeal,  punishable  contempt;  State  ex  rel.  Crow  v. 
Shepherd,  177  Mo.  233,  99  Am.  St.  Rep.  624,  76  S.  W.  79,  holding  a  false  publica- 
tion scandalizing  a  court  is  a  contempt;  People  ex  rel.  Atty.  Gen.  v.  News- 
Times  Pub.  Co.  35  Colo.  365,  84  Pac.  912,  holding  that  the  supreme 
xmrt  could  punish  for  contempt  for  a  newspaper  publication  charging  supreme 
court  with  corruption  in  its  rulings;  Re  Thatcher,  80  Ohio  St.  654,  89  N.  E.  39, 
disbarring  an  attorney  who  published  libelous  matter  concerning  a  member  of 
supreme  court;  Hughes  v.  Arizona,  10  Ariz.  128,  6  L.R.A.  (X.S.)  575,  85  Pac. 
1058,  holding  a  publication  during  the  trial  of  a  cause  tending  to  prejudice 
members  of  a  jury  to  be  contempt. 

Cited  in  footnotes  to  Telegram  Newspaper  Co.  v.  Com.  44  L.R.A.  159,  which 
holds  corporation  guilty  of  contempt  in  publishing  article  calculated  to  prejudice 
jury  and  prevent  fair  trial;  Ex  parte  Green,  66  L.R.A.  727,  which  holds  criticism 
of  manner  in  which  trials  are  conducted  without  referring  to  particular  case 
in  court  not  punishable  as  contempt. 

Cited  in  notes  (50  Am.  St.  Rep.  573,  580)  on  contempt  of  court  by  libelous 
newspaper  publications;  (68  L.R.A.  256,  259)  on  statement  with  respect  to  ended 
cause  as  contempt;  (2  Brit.  Rul.  Cas.  486,  488)  on  publication  of  matter  deroga- 
tory to  litigants  as  attempt  to  pervert  or  obstruct  justice,  or  as  contempt. 

Distinguished  in  State  ex  rel.  Atty.  Gen.  v.  Circuit  Court,.  97  Wis.  9,  38  L. 
R.  A.  558,  65  Am.   St.  Rep.  90,  72  N.  W.   193,  holding  newspaper  comment  on 
cases   decided   before   publication   not   criminal   contempt. 
Change  of  venne. 

Cited  in  Bloom  v.  People,  23  Colo.  418,  48  Pac.  519,  denying  change  of  venue 
as  of  right  in  contempt  proceedings. 

6  L.  R.  A.  444,  PEOPLE  ex  rel.  BARTON  v.  LONDONER,  13  Colo.  303,  22  Pac. 

764. 

Second   appeal   in    15   Colo.   568,   26   Pac.    135. 
Election    contests. 

Cited  in  Pratt  v.   Breckinridge,   112  Ky.  43,   65   S.  W.   136    (dissenting  opin- 


10!»y  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  444 

ion),  majority  holding  act  creating  board  to  try  election  contests  unconsti- 
tutional; Cripple  Creek  v.  Hanley,  19  Colo.  App.  391,  75  Pac.  600,  sustaining 
a  statute  conferring  power  on  city  council  to  be  judges  of  the  election  and  quali- 
fications of  its  members. 

Cited  in  notes  (12  L.  R.  A.  708)  on  remedy  by  proceedings  in  nature  of  quo 
warranto  in  election  contests;  (33  L.  R.  A.  387)  on  power  of  courts  to  re- 
quire ballot  boxes  to  be  produced  or  opened  in  proceedings  other  than  election 
contests;  (26  L.R.A. (X.S. )  208)  on  provision  for  testing  election  of  officer  before 
municipal  body  as  exclusive  remedy. 
Quo  \viirraiito  UN  affected  by  M:I  t  ti  !<••.. 

Cited  in  Snowball  v.  People,  147  111.  266,  35  N.  E.  538,  holding  statutory  right 
to  contest  elections  as  private  citizens  not  impair  quo  warranto;  Parks  v.  State, 
100  Ala.  648,  13  So.  756,  holding  validity  of  election  not  contestable  in  quo 
warranto  proceeding;  State  ex  rel.  Harris  v.  Elliott,  117  Ala.  154,  23  So.  124, 
holding  validity  of  election  of  mayor  under  particular  city  charter  contestable 
by  quo  warranto  proceedings;  Haverstock  v.  Aylesworth,  113  Iowa,  381,  85  N. 
\Y.  1)34.  holding  quo  warranto  and  statutory  contest  cumulative  remedies: 
People  ex  rel.  Union  P.  R.  Co.  v.  Colorado  Eastern  R.  Co.  8  Colo.  App.  302,  46 
Pac.  219,  holding  no  information  in  nature  of  quo  warranto  maintainable  except 
in  original  proceedings  in  supreme  court;  State  Railroad  Commission  v.  People, 
44  Colo.  349,  22  L.R.A. (X.S.)  815,  98  Pac.  7,  holding  a  statutory  prescribed 
metliod  for  testing  right  to  office  to  be  exclusive  method. 
Interest  necessary  to  maintain  quo  \varranto. 

Cited  in  Davis  v.  Dawson,  90  Ga.  825,  17  S.  E.  110,  holding  that  defeated  can- 
didate may  proceed  by  quo  warranto  to  have  office  declared  vacant;  State 
ex  rel.  White  v.  Barker,  116  Iowa,  100,  57  L.  R.  A.  248,  93  Am.  St.  Rep.  222. 
89  N.  W.  204,  upholding  quo  warranto  on  relation  of  taxpayer  to  test  validity 
of  appointnuenet  of  trustee  of  waterworks  system;  State  ex  rel.  Fullerton  v. 
Des  Moines  City  R.  Co.  135  Iowa,  712,  109  X.  W.  867,  holding  that  court 
will  entertain  a  quo  warranto  proceeding  to  test  right  of  a  corporation,  to  exer- 
cise a  franchise  privilege  though  relator  has  no  private  interest;  People  ex  rel. 
Stidger  v.  Horan,  34  Colo.  313,  86  Pac.  252,  on  trial  of  right  of  incumbent 
to  office;  Dunton  v.  People,  36  Colo.  131,  87  Pac.  540,  holding  one  not  legally 
elected  to  office  estopped  to  try  title  to  office;  Albright  v.  Territory,  13  N.  M.  77, 
79  Pac.  719,  11  A.  &  E.  Ann.  Cas.  1165,  holding  where  a  relator  having  succeeded 
in  ousting  an  incumbent  is  not  voluntarily  admitted  he  must  resort  to  mandamus 
to  secure  possession  of  office. 

Cited  in  notes   (125  Am.  St.  Rep.  640;  22  L.R.A. (N.S.)   813)   on  quo  warranto 
for  vindication  of  private  rights. 
Rights    under    municipal    charters. 

Cited  in  Huer  v.  Central,  14  Colo.  72,  23  Pac.  323,  upholding  special  charter 
of  city  incorporated  before  adoption  of  Constitution;  Denver  v.  Barren,  6  Colo. 
App.  76,  39  Pac.  989,  upholding  amendment  to  charter  requiring  notice  to  fix 
city's  liability  for  tort;  Heinssen  v.  State,  14  Colo.  250,  23  Pac.  995  (concurring 
opinion),  as  to  authority  of  city  under  special  charter  to  interfere  with  uni- 
form jurisdiction  of  district  courts  in  enforcement  of  general  laws. 
Special  legislation. 

Cited  in  McGarvey  v.  Swan,  17  Wyo.  138,  96  Pac.  697,  holding  that  a  special 
charter  of  a  municipal  corporation  might  be  amended  by  a  general  law. 

Cited  in  footnotes  to  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which 
holds  statute  as  to  taxes,  not  applying  to  all  parts  of  state,  unconstitutional ; 


6  L.R.A.  444]  L.  R.  A.  CASES  'AS  AUTHORITIES.  1100 

Milwaukee  Couny  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating  sheriff's 
fees  for  particular  county,  local. 

6  L.  R.  A.  449,  MOELLERING  v.  EVANS,  121  Ind.  195,  22  N.  E.  989. 
Use   of   one's    «>«  11    property   so   as    to    avoid    injury    to    another's. 

Cited  in  footnote  to  Cumberland  Teleph.  &  Teleg.  Co.  v.  United  Electric  R. 
Co.  12  L.  R.  A.  544,  which  denies  to  telephone  company  injunction  against 
operation  of  electric  railway. 

Cited  in  notes  (6  L.  R.  A.  573)  on  right  to  use  of  land,  surface  water,  damnum 
absque  injuria;   (8  L.  R.  A.  809)   on  right  to  use  one's  own  property. 
N:it  MI-MI    right   to   lateral   support. 

Cited  in  Ulrick  v.  Dakota  Loan  &  T.  Co.  2  S.  D.  291,  49  N.  W.  1054,  uphold- 
ing right  to  such  support  from  adjoining  land  as  incident  to  land  in  natural 
condition;  Bohrer  v.  Dienhart  Harness  Co.  19  Ind.  App.  499,  49  N.  E.  296,  hold- 
ing that  lot  owner  making  excavations  must  use  ordinary  care  to  protect  adjoin- 
ing building;  Payne  v.  Moore,  31  Ind.  App.  363,  66  N.  E.  483,  holding  com- 
plaint for  injury  to  wall  by  excavation  on  adjoining  lot,  not  alleging  negligence, 
prescriptive  right,  or  that  it  was  a  party  wall,  demurrable;  Schmoe  v.  Cotton, 
167  Ind.  368,  79  N.  E.  184,  holding  liability  for  taking  away  lateral  support 
of  land  in  its  natural  condition  not  based  on  negligence;  Walker  v.  Strosnider, 
67  W.  Va.  46,  67  S.  E.  1087,  21  Ann.  Gas.  1;  Weiss  v.  Kohlhagen,  58  Or.  ]50, 
—  L.R.A.  (N.S. )  — ,  113  Pac.  46, — holding  that  adjoining  owner  is  not  liable  for 
removal  of  lateral  support  where  injury  is  result  of  weight  of  building,  but 
will  be  liable  if  injury  is  caused  by  negligent  action,  even  though  owner  is  noti- 
fied of  intention  to  excavate. 

Cited  in  notes    (33  Am.  St.  Rep.  468,  475)    on  right  to  lateral  support;    (68 
L.R.A.  674,  683,  690,  704,  706)    on  liability  for  removal  of  lateral  or  subjacent 
support  of  land  in  its  natural  condition;   (10  Eng.  Rul.  Cas.  161)  on  right  to  sup- 
port of  land  in  its  natural  state  and  to  support  of  buildings  thereon. 
Measure   of   damages. 

Cited  in  Joliet  v.  Schroeder,  92  111.  App.  73,  holding  measure  of  damages 
to  be  difference  in  value  of  property  before  and  after  street  improvement;  Par- 
rott  v.  Chicago  G.  W.  R.  Co.  127  Iowa,  423,  103  N.  W.  352,  holding  that  measure 
of  damages  for  removal  of  rail  to  be  difference  in  value  of  land  before  and  after 
injury  and  not  mere  value  of  rail  takes. 

Cited  in  note  (17  L.  R.  A.  428)  on  cost  of  restoration  as  measure  of  dam- 
ages for  injury  to  real  property. 

0  L.  R.  A.  451,  ADERHOLDT  v.  HENRY,  »7  Ala.  415,  6  So.  625. 
Mortgage;    order    of    sale    of    parcels    subsequently    sold. 

Cited  in  Farmers  Sav.  &  Bldg.  &  L.  Asso.  v.  Kent,  117  Ala.  630,  23  N.  E.  757, 
liolding  parcels  sold  without  reference  to  mortgage  liable  to  sale  thereunder 
in  inverse  order  of  alienation;  Howser  v.  Cruikshank,  122  Ala.  264,  82  Am.  St. 
Rep.  76,  25  So.  206,  holding  second  mortgagee  of  remainder,  with  notice,  sub- 
ject to  right  of  grantee  of  portion  to  have  land  sold  in  inverse  order  of  alien- 
ation; Northwestern  Land  Asso.  v.  Harris,  114  Ala.  474,  21  So.  999,  holding 
portion  of  land  purchased  with  knowledge  of  covenant  in  mortgage  to  apply 
purchase  money  on  debt,  primarily  liable  to  extent  of  unpaid  price. 

fi  L.  R.  A.  454,  ELLIS  v.  HILTON,  78  Mich.  150,  18  Am.  St.  Rep.  438,  43  N.  W. 

1048. 
Second  appeal  in  92  Mich.  439,  52  N.  W.  754. 


1101  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  457 

•:  •  IM  n»i--   incurred  in  saving  property  as  damag-en. 

Cited  in  Coyle  v.  Baum,  3  Okla.  717,  41  Pac.  389,  holding  cost  of  medical 
treatment  for  injured  horse  recoverable;  Hughes  v.  Austin,  12  Tex.  Civ.  App. 
187,  33  S.  W.  607,  holding  expenses  incurred  in  good  faith  in  preserving  proper- 
ty from  wrongful  destruction  recoverable;  Wilson  v.  Seattle,  R.  &  S.  R.  Co.  55 
Wash.  657,  104  Pac.  1114,  holding  that  reasonable  expenses  incurred  in  attempt- 
ing to  effect  a  cure  of  animal  injured,  proper  element  of  damages;  Atwood  v. 
Boston  Forwarding  &  Transfer  Co.  185  Mass.  559,  71  N.  E.  72;  Sullivan  v.  An- 
derson, 81  S.  C.  481,  62  S.  E.  862;  Southern  Hardware  &  Supply  Co.  v.  Standard 
Equipment  Co.  158  Ala.  602,  48  So.  357, — holding  in  an  action  for  damages  for 
death  of  a  horse  because  of  negligence,  that  expenses  incurred  in  attempting 
a  cure  might  be  recovered;  Ulit  v.  Biggs,  53  Tex.  Civ.  App.  531,  116  S.  W.  126, 
holding  that  expenses  incurred  in  good  faith  jn  caring  for  and  treating  animal 
injured  by  defendant's  negligence  may  be  recovered  in  addition  to  value  of  ani- 
mal dying  from  result  of  injury. 

6  L.  R.  A.  455,  CHAFFEE  v.  TELEPHONE  &  TELEG.  CONSTR.  CO.  77  Mich. 
625,  18  Am.  St.  Rep.  424,  43  S.  W.  1064. 

6  L.  R.  A.  457,  RICHARDSON  v.  BUHL,  77  Mich.  632,  43  N.  W.  1102. 
Illegality  of  contracts;   subject  of  judicial   notice. 

Cited  in  Burger  v.  Koelsch,  77  Hun,  48,  28  N.  Y.  Supp.  460,  holding  that  ac- 
tion to  enforce  illegal  contract  will  be  dismissed,  although  issue  not  raised  by 
pleadings;  Reed  v.  Johnson,  27  Wash.  56,  57  L.  R.  A.  409,  67  Pac.  381,  holding 
specific  performance  of  contract  to  convey  land  for  securing  location  of  rail- 
road depot,  proceeds  of  which  to  be  shared  with  officers  of  railroad,  will  not 
be  decreed,  although  illegality  not  pleaded:  Haddock  v.  Salt  Lake  City,  23  Utah, 
528.  65  Pac.  491,  denying  enforcement  of  contract  with  constable  providing  pay- 
ment for  services  different  from  that  prescribed  by  statute;  Baltimore  High 
Grade  Brick  Co.  v.  Amos,  95  Md.  602,  52  Atl.  582,  holding  that  courts  will 
set  aside  mortgage  void  under  statute,  irrespective  of  plaintiff's  right  to  im- 
peach it;  Escambia  Land  &  Mortg.  Co.  v.  Ferry  Pass  Inspectors'  &  Shippers' 
Asso.  59  Fla.  246,  138  Am.  St.  Rep.  121,  52  So.  715,  holding  that  courts  will  take 
judicial  notice  on  their  own  motion  of  illegal  contracts  and  will  leave  parties 
where  they  have  placed  themselves;  O'Brien  v.  Shea,  208  Mass.  536,  95  X.  E.  99, 
Ann  Cas.  191 2 A,  holding  that  courts  are  not  bound  to  take  judicial  notice  of 
illegal  contracts  where  question  is  not  raised  by  parties;  Heffron  v.  Daly.  133 
Mich.  615,  95  X.  W.  714,  holding  illegality  of  insurance  policy  need  not  be  pleaded 
if  noticeable  suo  sponte;  Swing  v.  Cameron,  145  Mich.  182,  9  L.R.A.  (X.S. )  423, 
108  X.  W.  506,  9  A.  &  E.  Ann.  Cas.  332,  holding  that  illegality  of  an  insurance 
policy  might  be  taken  advantage  of  under  general  denial. 
Vnln  \vfnl  combinations  and  contracts. 

Approved  in  Bigelow  v.  Calumet  &  H.  Min.  Co.  167  Fed.  709,  on  intent  as 
an  element  in  illegal  combinations  and  trusts. 

Cited  in  United  States  v.  E.  C.  Knight  Co.  156  U.  S.  30,  39  L.  ed.  335,  15  Sup. 
Ct.  Rep.  249,  holding  anti-trust  law  1890  not  applicable  to  monopoly  in  manu- 
facture of  necessity  of  life;  State  ex  rel.  Snyder  v.  Portland  Xatural  Gas  &  Oil 
Co.  153  Ind.  489,  53  L.  R.  A.  415,  74  Am.  St.  Rep.  319,  53  X.  E.  1089,  holding 
combinations  between  corporations,  tending  to  restrict  competition,  against 
public  policy;  Lovejoy  v.  Michels,  88  Mich.  28,  13  L.  R.  A.  775,  49  X.  W.  901, 
denying  power  of  monopolies  to  control  prices;  Lovejoy  v.  Michels,  88  Mich.  23, 
13  L.  R.  A.  775,  49  X.  W.  901,  holding  combination  for  purpose  of  controlling 
prices  unlawful,  although  prices  fixed  are  reasonable;  Stockton  v.  Central  R> 


6  L.R.A.  457]  L.  R.  A.  CASES  AS  AUTHORITIES.  1102 

Co.  50  N.  J.  Eq.  85,  17  L.  R.  A.  110,  footnote  p.  97,  24  Atl.  964,  and  Trenton  Pot- 
teries Co.  v.  Oliphant,  56  N.  J.  Eq.  736,  39  Atl.  923,  holding  combination  to 
create  monopoly  against  public  policy,  although  it  has  in  fact  reduced  prices; 
United  States  v.  Addyston  Pipe  &  Steel  Co.  46  L.  R.  A.  136,  29  C.  C.  A.  160,  54 
U.  S.  App.  723,  85  Fed.  291,  and  Wittenberg  v.  Mollyneaux,  60  Neb.  585,  83  N. 
Y.  842,  holding  that  when  purchase  of  property  is  means  to  creation  of  mo- 
nopoly, it  is  unlawful;  Distilling  &  Cattle  Feeding  Co.  v.  People,  156  111.  488, 

47  Am.   St.  Rep.   217,   41   N.   E.    188,   holding  corporation   organized   to  control 
manufacture  and  sale  of  distilling  products  illegal;   State  v.  Nebraska  Distilling 
Co.  29  Neb.   715,  46  N.  W.   155,  holding  combination  of  distilleries  to  destroy 
competition   by  dismantling   distilleries,   and   thus   to  control   prices,   unlawful; 
Gibbs  v.  McNeeley,  60  L.  R.  A.  155,  55  C.  C.  A.  73,  118  Fed.  123,  holding  associa- 
tion of  manufacturers  and  dealers  to  control   production  and  price  of  shingles 
unlawful  combination;  Northern  Securities  Co.  v.  United  States,  193  U.  S.  341, 

48  L.  ed.  702,  24  Sup.  Ct.  Rep.  436,  holding  corporation  formed  for  purpose  of 
holding  stock  of  competing  railroads,  acquired  in  exchange  for  its  own,  an  un- 
lawful combination ;  John  D.  Park  &  Sons  Co.  v.  National  Wholesale  Druggist's 
Asso.    175   N.   Y.   36,   62   L.   R.  A.   647,   footnote   p.   632,   96  Am.   St.   Rep.   578, 
67    N.   E.    136    (dissenting   opinion),   majority   holding   plan   adopted   by   drug- 
gists'   association    and    manufacturers    of    proprietary    medicines,    providing   for 
rebate  to  those  maintaining  selling  price,  legal;  Leonard  v.  Abner  Drury  Brewing 
Co.  25  App.  D.  C.   174,  holding  a  combination  of  brewers  attempting  to  force 
all  competitors  to  join  and  to  coerce  purchasers  was  illegal  at  common  law  or 
tinder  section  3  of  the  Federal  Anti  Trust  Act;   Chicago,  W.  &  V.  Coal  Co.  v. 
People,   114  111.  App.   106,  holding  it  immaterial  whether  prices  fixed  were  un- 
fair or  unreasonable;   Hunt  v.  Riverside  Co-op.  Club,   140  Mich.  547,   132  Am. 
St.  Rep.  420,  104  N.  W.  40,  holding  it  not  material  that  the  combination  may 
have  lowered  prices;   International  Harvester  Co.  v.  Eaton  Circuit  Judge    (In- 
ternational Harvester  Co.  v.  Smith),  163  Mich.  59,  30  L.R.A.(N.S.)   586,  127  N. 
W.  695,  Ann.  Cas.  1912A,  1022,  holding  that  defense  that  foreign  corporation  is 
illegal  combination  under  statute  is  not  available  in  action  for  money  had  and  re- 
ceived; State  v.  Duluth  Bd.  of  Trade,  107  Minn.  530,  23  L.R.A.(N.S.)   1273,  121 
N.  W.  395,  holding  a  conspiracy  to  enhance  the  price  of  commodities  which  con- 
stitute the  necessities  of  life  is  illegal  at  common  law;   State  ex  rel.  Hadley  v. 
Standard  Oil  Co.  218  Mo.  350,  116  S.  W.  902,  on  tendency  and  not  the  actual  re- 
sult as  the  test  of  illegality;   United  States  v.  Standard  Oil  Co.  173  Fed.   185, 
holding  the  exchanging  stocks  by  all  competing  corporations  for  stock  in  a  single 
corporation  to  be  illegal;  Bigelow  v.  Calumet  &  H.  Min.  Co.  155  Fed.  874,  hold- 
ing the  control  of  stock  in  competing  mining  companies  by  one  corporation  to  be 
unlawful;   United  States  v.  American  Tobacco  Co.  164  Fed.  721,  holding  that  a 
combination  so  as  to  practically  control  prices  is  a  monopoly;   De  Witt  Wire- 
Cloth  Co.  v.  New  Jersey  Wire-Cloth  Co.  16  Daly,  531,  14  N.  Y.  Supp.  277,  holding 
an  association  for  purpose   of  effecting  price  of  a  commodity  to  be  unlawful : 
Anderson  v.  Shawnee  Compress  Co.  17  Okla.  243.  15  L.R.A.  (N.S.)    854,  87  Pac. 
315,  holding  an  agreement  not  to  compete  within  50  miles  of  any  plant  of  lessee 
as  part  of  a  lease  of  a  compress  plant  to  a  compress  corporation  to  be  invalid; 
Territory  v.   Long  Bell  Lumber  Co.  22  Okla.  906,  99  Pac.  911,  holding  that  a 
monopoly  is  a  public  nuisance. 

Cited  in  footnotes  to  Texas  Standard  Cotton  Oil  Co.  v.  Adoue,  15  L.  R.  A.  598, 
which  holds  combination  to  fix  prices  of  cotton  seed  and  seed  cotton  void;  State 
v.  Phipps,  18  L.  R.  A.  658,  which  holds  combination  by  foreign  companies  to 
increase  rates  of  insurance  unlawful;  Clark  v.  Needham,  51  L.  R.  A.  785,  which 
holds  void  lease  of  manufacturing  machinery  with  agreement  against  lessor  en- 


1103  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  457 

gaging  in  business  for  five  years;  Chaplin  v.  Brown,  12  L.  R.  A.  428,  which 
holds  grocer's  agreement  not  to  buy  butter  from  makers  for  two  years  if  firm 
opens  butter  store  void;  More  v.  Bennett,  15  L.  R.  A.  361,  which  holds  asso- 
ciation of  stenographers  to  control  prices  for  work  illegal  combination;  State 
ex  rel.  Watson  v.  Standard  Oil  Co.  15  L.  R.  A.  145,  which  holds  agreement 
for  transfer  of  corporate  stock  to  trustees  to  vote  and  receive  dividends  void: 
Wassermann  v.  Sloss,  38  L.  R.  A.  176,  which  holds  that  illegality  of  transfer  of 
stock  to  president  for  corrupting  government  officials  does  not  prevent  recovery 
where  taken  by  president  for  his  own  use  instead;  Cummings  v.  Union  Blue 
Stone  Co.  52  L.  R.  A.  262,  which  holds  void,  agreement  by  persons  controlling 
90  per  cent  of  sale  of  blue  stone,  to  sell  through  common  agent  and  maintain 
agreed  prices;  Gloucester  Isinglass  &  Glue  Co.  v.  Russia  Cement  Co.  12  L.  R.  A. 
563,  which  holds  agreement  to  prevent  competition  between  corporations  in 
manufacture  of  glue  under  patent  valid;  Chateau  v.  Singla,  33  L.  R.  A.  750, 
which  denies  relief  to  either  party  for  settlement  of  partnership  to  carry  on 
unlawful  business;  John  D.  Park  &  Sons  Co.  v.  National  Wholesale  Druggists' 
Asso.  62  L.R.A.  632,  which  holds  valid  plan  for  sale  of  proprietary  medicines 
by  manufacturers  at  fixed  prices  with  rebate  only  to  concerns  which  may  be 
relied  on  to  maintain  selling  price;  Slaughter  v.  Thacker  Coal  &  Coke  Co. 
65  L.R.A.  342,  which  holds  void  contract  by  different  coal  mining  companies 
giving  exclusive  right  to  sell  entire  output  at  uniform  prices  to  corporation  organ- 
ized as  their  regular  sales  agent. 

Cited  in  notes  (8  L.  R.  A.  500,  501)  on  combinations  and  monopolies  in  trade; 
(12  L.  R.  A.  754)  on  restraining  monopolies  as  public  nuisances;  (13  L.  R.  A. 
771)  on  nature  of  monopolies;  (52  L.  R.  A.  381)  on  right  of  corporations  to  con- 
solidate; (74  Am.  St.  Rep.  243,  268,  269,  271)  on  combinations  constituting  un- 
lawful trusts;  (41  L.  ed.  U.  S.  1010),  on  validity  of  contracts  in  restraint  of 
trade. 

^Distinguished  in  Queen  Ins.  Co.  v.  State,  86  Tex.  266,  22  L.  R.  A.  492,  24  S. 
W.  397,  holding  combination  between  insurance  companies  to  fix  rates,  not  v.ith- 
in  statute  imposing  penalties  on  persons  or  corporations  composing  "trust;" 
O.  &  W.  Thum  Co.  v.  Tloczynski,  114  Mich.  160,  38  L.  R.  A.  205,  68  Am.  St. 
Rep.  469,  72  N.  W.  140,  upholding  agreement  of  employee  not  to  reveal  secret 
process  and  methods  of  employer  in  manufacturing. 
Extrinsic  marks  or  evidences  of  illegality. 

Cited  in  Detroit  Salt  Co.  v.  National  Salt  Co.  134  Mich.  117.  96  N.  W.  1, 
holding  court  may  consider  fact  that  contract  is  consistent  with  none  but  an 
illegal  purpose ;  Erpelding  v.  Mc-Kearman,  143  Mich.  414,  107  N.  W.  107,  hold- 
ing indicia  of  illegal  combination  by  a  sale  of  stock  to  a  competitor  should  have 
gone  to  jury  on  question  whether  stock  sale  was  legal. 
Agreements  in  aid  of  creation  of  monopoly. 

Cited  in  Trenton  Potteries  Co.  v.  Oliphant.  5(5  N.  J.  Eq.  736,  39  Atl.  923, 
holding  stipulation  in  sale  of  business  of  manufacturing  firm  not  to  engage  in 
business  anywhere  in  I  nited  States  for  fifty  years  void;  Gamewell  Fire  Alarm 
Teleg.  Co.  v.  Crane,  100  Mass.  r>7,  22  L.  R.  A.  677,  39  Am.  St.  Rep.  464,  35  N. 
E.  98,  holding  stipulation  of  vendor,  in  sale  of  business  of  manufacturing  fire 
.alarm  and  police  telegraph  machines,  not  to  engage  in  same  business  for  ten 
years,  void:  National  Harrow  Co.  v.  Quick,  67  Fed.  131,  holding  corporation 
organized  to  control  harrow  patents  and  prices  of  harrows  sold  by  licensed  manu- 
facturers, illegal;  Harding  v.  American  Glucose  Co.  182  111.  619,  64  L.  R.  A. 
765,  74  Am.  St.  Rep.  215.  55  X.  K.  577.  holding  agreement  between  corporations 
to  transfer  plants  to  new  corporation  to  conduct  business  for  benefit  of  parties 


6  L.R.A.  457]  L.  R.  A.  CASES  AS  AUTHORITIES.  1104 

to  agreement,  for  purpose  of  suppressing  competition,  void;  State  ex  rel.  Watson 
v.  Standard  Oil  Co.  49  Ohio  St.  186.  15  L.  R.  A.  159,  34  Am.  St.  Rep.  553,  30  N. 
E.  279,  holding  agreement  whereby  stockholders  transfer  shares  to  trustees  em- 
powered to  conduct  business  of  several  corporations  for  benefit  of  parties  con- 
cerned, unlawful;  Merchants'  Ice  &  Cold  Storage  Co  v.  Hohrman,  138  Ky.  551, 
30  L.R.A. (N.S.)  981,  137  Am.  St.  Rep.  390,  128  S.  W.  599,  holding  void,  con- 
tracts to  consolidate  ice  plants  in  city,  to  control  market,  though  no  effort  was 
made  to  fix  price  in  local  market. 
Unlawful  dividends. 

Cited  in  American  Steel  &  Wire  Co.  v.  Eddy,  130  Mich.  268,  89  X.  W.  952,  hold- 
ing preferred  stockholder  liable  to  corporation  creditor  to  extent  of  dividends 
impairing  capital  stock. 

6  L.  R.  A.  469,  PALMER  v.  POOR,  121  Ind.  135,  22  N.  E.  984. 
Alteration    of    written    instrument. 

Cited  in  Richardson  v.  Fellner,  9  Okla.  521,  60  Pac.  270,  holding  that  material 
alteration  vitiates  written  instrument  though  no  fraud  results;  Bucklen  v. 
Johnson,  19  Ind.  App.  417,  49  N.  E.  612,  holding  subscription  note  invalidated 
by  alteration  of  contract  precedent  to  delivery,  without  knowledge  of  maker, 
Moore  v.  Hinshaw,  23  Ind.  App.  270,  77  Am.  St.  Rep.  434,  55  N.  E.  236,  holding 
surety  released  by  insertion  of  rate  of  interest  in  blank  by  principal  and  payee; 
Casto  v.  Evinger,  17  Ind.  App.  300,  46  N.  E.  648,  holding  alteration  after  exe- 
cution presumed  to  be  made  by  party  claiming  under  instrument;  Pope  v. 
Branch  County  Sav.  Bank,  23  Ind.  App.  215,  54  N.  E.  835,  holding  insertion  of 
name  of  bank  as  place  of  payment,  without  authority,  material  alteration; 
Young  v.  Baker,  29  Ind.  App.  135,  64  N.  E.  54,  holding  unauthorized  insertion 
of  name  of  bank  in  blank  provided  for  place  of  payment  material  alteration 
avoiding  note  in  hands  of  bona  fide  holder;  Brannum  Lumber  Co.  v.  Pickard, 
33  Ind.  App.  488,  71  N.  E.  676,  holding  an  alteration  of  a  note  postponing  the 
date  of  payment  discharged  surety;  Fudge  v.  Marquell,  164  Ind.  453,  72  X.  E. 
565,  holding  evidence  to  show  subsequent  unauthorized  alterations  of  a  note, 
admissible  under  plea  non  est  factum. 

Cited  in  footnotes  to  Gleason  v.  Hamilton,  21  L.  R.  A.  210,  which  holds  mort- 
gage not  invalidated  by  alteration  by  attorney  drawing  same  without  mortgagee's 
knowledge;  Simmons  v.  Atkinson  &  L.  Co.  23  L.  R.  A.  599,  which  holds  insertion 
of  words  "or  bearer"  and  place  of  payment  a  material  alteration;  Brown  v. 
Johnson  Bros.  51  L.  R.  A.  403,  which  holds  maker  released  by  payee's  addition 
of  name  of  other  person  as  comaker;  Rochford  v.  McGee,  61  L.  R.  A.  335.  which 
holds  removal  of  note  written  below  perforated  line  on  application  for  insurance 
material  alteration  rendering  it  void;  Foxworthy  v.  Colby,  62  L.  R.  A.  393, 
which  holds  insertion  of  "gold"  before  "dollars"  material  alteration. 

Cited  in  notes  (7  L.  R.  A.  743)  on  effect  of  alteration  of  written  instruments; 
(13  L.  R.  A.  314)  on  duty  of  party  producing  instrument  to  account  for  altera- 
tions; (86  Am.  St.  Rep.  97)  on  unauthorized  alteration  of  written  instruments. 
Bona  fide  holder. 

Cited  in  Miller  v.  Stephenson,  27  Ind.  App.  287,  61  N.  E.  22  (dissenting  opin- 
ion), majority  holding  attorneys  taking  client's  money  order  as  fees,  knowing  that 
client  had  defrauded  plaintiff,  not  bona  fide  holder;  Pope  v.  Branch  County  Sav. 
Bank,  23  Ind.  App.  213,  54  X.  E.  835,  holding,  after  alteration  of  note,  burden 
upon  plaintiff  to  show  that  he  is  bona  fide  holder. 

Cited  in  notes  (10  L.  R.  A.  678)  on  protection  of  bona  fide  holder  of  note 
fraudulently  obtained;  (36  L.  R.  A.  441)  on  fraud  in  obtaining  execution  of  note 


1105  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  472 

as  defense  against  bona  fide  holder;   (125  Am.  St.  Rep.  811,  812)  on  invalidity  of 
stolen  negotiable  instrument  in  hands  of  bona  fide  holder. 
Incomplete   agreement. 

Cited  in  McCaslin  v.  Advance  Mfg.  Co.  155  Ind.  305,  58  N.  E.  67,  holding  mort- 
gagor not  bound  to  insure  where  amount  left  blank  in  mortgage  stipulation  re- 
quiring insurance. 
Confession   and    denial   in   answer. 

Cited  in  People's  Mut.  Ben.  Soc.  v.  Templeton,  16  Ind.  App.  129,  44  N.  E.  809r 
holding  that  plaintiff  cannot  escape  proof,  although  answer  contains  confession 
and  denial;  Merchants'  Nat.  Bank  v.  McClellan,  40  Ind.  App.  6,  80  N.  E.  854., 
holding  that  admissions  made  in  one  paragraph  to  an  answer  can  be  considered; 
only  in  reference  to  such  paragraph. 
Delivery  of  negotiable  paper. 

Cited  in  Digan  v.  Mandel,  167  Ind.  593,  119  Am.  St.  Rep.  515,  79  N.  E.  899V 
holding  an  unmistakable  intention  of  maker  to  relinquish  all  power  of  a  note  and 
to  give  it  effect  in  the  hands  of  the  payee  to  constitute  delivery:  Godman  v. 
Henby,  37  Ind.  App.  3,  76  N.  E.  423,  holding  where  the  execution  of  a  note  is  in* 
issue  that  delivery  must  be  proven;  Indiana  Trust  Co.  v.  Byram,  46  Ind.  App.. 
16,  72  N.  E.  670  (dissenting  opinion),  on  what  constitutes  a  delivery  of  a  note. 

6  L.  R.  A.  472,  Re  TYSON,  13  Colo.  482,  22  Pac.  810. 

Second  writ  of  habeas  corpus  denied  in  21  Colo.  79,  39  Pac.  1093. 
Ex   post   facto  laws. 

Cited  in  McGinn  v.  State,  46  Neb.  443,  30  L.  R.  A.  455,  50  Am.  St.  Rep.  617, 
65  N.  W.  46,  holding  imprisonment  until  execution  not  part  of  punishment  so 
as  to  prevent  setting  aside  irregular  sentence  and  sentencing  as  prescribed  by  law  -. 
State  v.  Rovley,  12  N.  D.  153,  95  N.  W.  513,  holding  confinement  pending  execution 
of  a  prisoner  to  be  lawful. 

Cited  in  footnotes  to  State  v.  Kyle,  56  L.  R.  A.  115,  which  sustains  statute 
authorizing  prosecution  by  information  of  crimes  already  committed;  People 
ex  rel.  Chandler  v.  McDonald,  29  L.  R.  A.  834,  which  holds  statute  not  ex  post 
facto  for  abrogating  provision  for  change  of  magistrate  or  of  venue  for  prejxidice; 
People  v.  Hayes,  23  L.  R.  A.  830.  which  holds  change  in  statute  authorizing 
slighter  punishment  not  ex  post  facto  law:  French  v.  Deane,  24  L.  R.  A.  388, 
which  holds  void  act  giving  right  to  punitive  damages  as  to  existing  cause  of 
action. 

Cited  in  notes  (39  L.R.A.  456)  as  to  decision  against  constitutional  right  as 
a  nullity  subject  to  collateral  attack;  (31  Am.  St.  Rep.  105;  37  Am.  St.  Rep. 
588)  on  ex  post  facto  laws. 

Overruled  in  effect  in  Kelly  v.  People,  17  Colo.   135,  29  Pac.  805,  sustaining 
limitation  of  conviction  to  murder  in  second  degree,  where  authorization  of  first 
degree  ex  post  facto. 
Computation    of    time. 

Cited  in  Mora  v.  People,  19  Colo.  264,  35  Pac.  179,  holding  that  from  midnight 
Saturday  until  midnight  following  Saturday  is  week  for  execution  of  criminal; 
Vailes  v.  Brown,  16  Colo.  466,  14  L.  R.  A.  123,  27  Pac.  945,  requiring  filing  of 
statement  of  intention  to  contest  election  on  Saturday  if  Sunday  last  day. 

Cited  in  note   ( 78  Am.  St.  Rep.  385 )  on  computation  of  time. 

Distinguished   in   Evans  v.   Bowers,   13   Colo.   514,  22   Pac.   812,   requiring  ex- 
clusion of  day  of  filing  application   in  computing  time  between  application  for 
habeas  corpus  and  sitting  of  district  court. 
L.R.A.  Au.  Vol.  I.— 70. 


6  L.R.A.  475]  L.  R.  A.  CASES  AS  AUTHORITIES.  1106 

6  L.  R.  A.  475,  FAIRBANKS  v.  SARGENT,  117  N.  Y.  320,  22  N.  E.  1039. 
Eqnitable    assignments. 

Cited  in  Niles  v.  Mathusa,  162  N.  Y.  552,  57  N.  E.  184,  Affirming  20  App.  Div. 
486,  47  N.  Y.  Supp.  38,  holding  assignment  of  liquor  tax  certificate,  valid  without 
delivery  to  proper  assignee  making  advancements  to  procure  same,  and  without 
recording  as  to  creditors;  York  v.  Conde,  61  Hun,  29,  15  N.  Y.  Supp.  380,  holding 
agreement  to  deliver  avails  of  contract  made  in  consideration  of  indorsement 
enabling  performance,  an  equitable  assignment;  Harwood  v.  La  Grange,  137  N.  Y. 
540,  32  N.  E.  1000,  holding  that  attorney  has  lien  as  equitable  assignee,  upon 
proceeds  of  action  he  conducted  for  compensation  payable  from  recovery;  Schu- 
bert v.  Herzberg,  65  Mo.  App.  585,  holding  rights  under  attorneys'  agreement  to 
prosecute  for  40  per  cent  of  judgment,  superior  to  those  of  subsequent  execution 
creditor;  Randel  v.  Vanderbilt,  75  App.  Div.  318,  78  N.  Y.  Supp.  124,  holding 
assignment  of  portion  of  recovery  of  claims  in  litigation,  with  notice  to  defend- 
ant, not  create  equitable  assignment;  Collins  &  A.  Co.  v.  United  States  Ins.  Co. 

7  Tex.  Civ.  App.  581,  27  S.  W.  147,  holding  jury  to  determine  whether  equitable 
assignment  created  by  intention  to  transfer  part  of  insurance:  Wooster  v.  Trow- 
bridge,  115  Fed.  727,  holding  contract  by  trustee  in  insolvency  giving  power  to 
prosecute,  or  settle  doubtful  claim  for  share  of  proceeds,  equitable  assignment. 

Distinguished  in  Netling  v.  Netling,  60  App.  Div.  412,  69  N.  Y.  Supp.  984, 
holding  promise  to  pay  portion  of  future  income  in  lieu  of  alimony,  not  equi- 
table assignment;  Donovan  v.  Middlebrook,  95  App.  Div.  367,  88  N.  Y.  Supp.  607, 
holding  that  an  agreement  that  a  third  person  is  entitled  to  onehalf  of  a  certain 
fund,  is  not  an  equitable  assignment;  Holmes  v.  Bell,  139  App.  Div.  462,  124 
N.  Y.  Supp.  301,  holding  that  contract  by  attorney  to  give  information  upon 
which  suit  might  be  prosecuted  for  percentage  is  not  equitable  assignment  of 
percentage  subsequently  recovered  by  another  attorney;  Pettibone  v.  Thomson, 
72  Misc.  495,  130  N.  Y.  Supp.  284,  holding  that  written  agreement  to  pay  debt 
out  of  fund  without  transferring  any  part  of  fund  or  authorizing  holder  to  pay, 
is  not  equitable  assignment. 

Cited  in  note  (10  Eng.  Rul.  Cas.  478)  on  equitable  assignment  of  future  chattels 
as  security. 

Distinguished  in  Rydson  v.  Larson,  3  Neb.  (Unof. )  900,  93  N.  W.  195,  holding 
where  vendor  of  a  threshing  machine  was  to  collect  amounts  due  from  threshing 
and  apply  one  half  to  payment  on  machine  that  vendor  could  not  so  collect 
where  vendee  of  machine  sold  to  a  third  party;  People  v.  Birnbaum,  114  App. 
Div.  486,  100  N.  Y.  Supp.  160,  holding  that  an  attorney  might  be  guilty  of  lar- 
ceny of  the  client's  share  though  acting  on  a  contingent  fee. 
Compromise  of  claim  pledged. 

Cited  in  Field  v.  Sibley,  74  App.  Div.  84,  77  N.  Y.  Supp.  252,  holding  that 
pledgee  of  bonds  exercising  power  of  collection  must  obtain  cash,  unless  pledgeor 
consents  to  another  course. 

Cited  in  note    (28  L.R.A. (N.S.)    980)    on  authority  of  pledgee  to  compromise 
obligations  held  as  collateral. 
Priority   of  assignment. 

Cited  in  Fortunato  v.  Patten,  147  N.  Y.  283,  41  N.  E.  572,  Reversing  5  Misc. 
238,  25  N.  Y.  Supp.  333,  upholding  assignment  prior  in  point  of  time,  although 
no  notice  given  debtor  or  subsequent  assignee;  Leask  v.  Hoagland,  64  Misc.  165, 
118  N.  Y.  Supp.  1035,  holding  that  notice  of  an  assignment  given  to  debtor 
serves  only  to  prevent  payment  by  debtor  to  assignor. 

Distinguished  in   Beran  v.  Tradesmen's  Nat.  Bank,   137  N.  Y.  456,  33   N.  E. 


1J07  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  483 

5!)3,  upholding  debtor's  payment  to  assignor  when  made  to  buy  peace,  notwith- 
standing assignee's  notice  of  claim. 
Rights  of  equitable  ii«->iu  11  <•«•   upon  payment   to  assignor. 

Cited  in  Freeman  v.  Rich,  64  Hun,  481,  19  N.  Y.  Supp.  498,  holding  pledgee  of 
book  accounts  remaining  in  merchant's  hands,  entitled  to  proceeds  to  extent  of 
claim  as  against  administrators;  Kerr  v.  Kennedy,  119  Iowa,  242,  93  N.  W.  353, 
holding  attorney  claiming  portion  of  collection  by  equitable  assignment  cannot 
reach  it  in  third  party's  hands  by  garnishment. 

Distinguished  in  Beran  v.  Tradesmen's  Xat.  Bank,   137  X.  Y.  459,  33  X.  E. 
593,  holding  evidence  admissible  that  payment  to  assignor  by  defendant  was  to 
buy  peace,  and  not  in  acknowledgment  and  settlement  of  claim,  part  of  which 
\vus  assigned. 
Loss  of  lien  by  pledgee. 

Cited  in  Hickok  v.  Cowperthwait,  137  App.  Div.  95,  122  X.  Y.  Supp.  78, 
holding  that  pledgee  may  temporarily  return  property  to  pledger  for  some  special 
purpose  without  losing  lien;  Heimowitz  v.  Berg,  72  Misc.  404,  130  N.  Y.  Supp. 
157,  holding  that  lien  of  pledgee  of  stock  was  not  lost  by  lending  stock  to  another 
for  a  week  to  vote  it. 

Cited  in  note  (39  L.R.A.  (N.S.)  890)  on  effect  of  surrender  of  pledge  upon 
rights  of  pledgee. 

6  L.  R.  A.  481,  DIERSTEIN  v.  SCHUBKAGEL,  131  Pa.  46,  18  Atl.  1059. 
What   matters   considered  on  appeal. 

Cited  in  Lowrey  v.  Robinson,  141  Pa.  194,  28  W.  X.  C.  29,  21  Atl.  513,  holding 
refusal  to  strike  out  evidence  received  without  objection,  or  to  enter  compulsory 
nonsuit,  not  reviewable;  Com.  v.  Hanley,  15  Pa.  Super.  Ct.  277,  holding  sufficiency 
of  evidence  not  reviewable  upon  assignment  of  error  for  refusal  to  arrest  judg- 
ment. 
Privileged  communications  between  attorney  and  client. 

Cited  in  Seip  Estate,  163  Pa.  432,  35  W.  X.  C.  402,  43  Am.  St.  Rep.  803,  30 
Atl.  226,  holding  attorney  in  will  contest  competent  to  testify  as  to  parties 
therein,  in  subsequent  suit  for  proceeds;  Mclntosh  v.  Moore,  22  Tex.  Civ.  App. 
25.  53  S.  W.  611,  holding  question  to  attorney,  in  divorce  proceedings  against 
testator,  as  to  effect  of  destruction  of  will,  privileged,  in  proceeding  to  probate 
missing  will;  Re  Ruos,  159  Fed.  257,  holding  knowledge,  which  an  attorney  ob- 
tained from  third  persons,  not  privileged. 

Cited  in  footnotes  to  Koeber  v.  Somers,  52  L.  R.  A.  512.  which  holds  conversa- 
tion authorizing  attorney  to  compromise  action  not  privileged ;  Bruley  v.  Gar- 
vin,  48  L.  R.  A.  839,  holding  conversation  with  attorney  with  reference  to  con- 
templated suit  in  which  opinion  is  sought  and  obtained  without  fee,  although  not 
between  attorney  and  client,  privileged. 

Cited  in  notes  (66  Am.  St.  Rep.  220,  240)  on  attorneys  as  witnesses;  (67  L.R.A. 
923)  on  admissibility  of  communications  to  persons  serving  in  judicial  capacity. 

6  L.  R.   A.   483,   COSKERY  v.   XAGLE,   83   Ga.  696,  20  Am.  St.  Rep.  333,   10 

S.  E.  491. 
Liability  of   innkeepers. 

Cited  in  Keith  v.  Atkinson,  48  Colo.  482,  139  Am.  St.  Rep.  284,  111  Pac.  55, 
holding  that  innkeeper  is  deemed  in  constructive  possession  of  baggage  where 
checks  are  delivered  to  bell-boy. 

Cited  in  footnotes  to  Fay  v.  Pacific  Improv.  Co.  16  L.  R.  A.  188.  which  holds 
character  of  guest  at  hotel  not  lost  by  merely  inquiring  as  to  price  of  room  and 


6  L.R.A.  483]  L.  R.  A.  CASES  AS  AUTHORITIES.  1108 

board;  Amey  v.  Winchester,  39  L.  R.  A.  760.  which  denies  hotel  keeper's  liability 
for  loss  of  hats  left  on  racks  by  persons  attending  club  banquet  at  hotel;  Rains  v. 
Maxwell  House  Co.  64  L.  R.  A.  471,  which  denies  hotel  keeper's  liability  for 
watch  not  deposited  in  safe;  State  v.  Steele,  8  L.  R.  A.  516,  which  authorizes  ex- 
pulsion from  hotel  of  liveryman  soliciting  orders  against  rules. 

Cited  in  notes  (6  L.  R.  A.  620)  as  to  bailments;  (8  L.  R.  A.  98)  as  to  liability 
of  innkeeper  as  insurer;  (12  L.  R,  A.  382)  as  to  responsibility  of  innkeeper  as 
bailee;  (34  L.R.A.  (N.S.)  420,  421)  as  to  when  relation  of  innkeeper  and  guest 
initiated;  (99  Am.  St.  Rep.  578,  584,  585,  600;  13  Eng.  Rul.  Cas.  129)  on  liabil- 
ity of  innkeeper  for  property  of  guest. 

"Distinguished  in  Brewer  v.  Caswell,  132  Ga.  567,  23  L.R.A.(X.S.)    1109,  131 
Am.  St.  Rep.  216,  64  S.  E.  674,  16  A.  &  E.  Ann.  Cas.  936,  holding  relation  of  inn- 
keeper and  guest  not  established  merely  by  delivering  property  to  innkeeper. 
Nature  of  action  for  breach   of  marriagre  promise. 

Cited  in  Keim  v.  Brumbaugh,  29  Pa.  Super.  Ct.  560,  holding  action  in  form  of 
trespass  for  breach  of  contract  to  marry  was  ex  contractu. 

6  L.  R.  A.  487,  GALUSHA  v.  GALUSHA,  116  N.  Y.  635,  15  Am.  St.  Rep.  453 , 

22  N.  E.  1114. 

Report  of  second  appeal  in  138  N.  Y.  280,  33  X.  E.  1062. 
Agreement   for   separation. 

Cited  in  Chamberlain  v.  Cuming,  29  N.  Y.  S.  R.  675,  8  N.  Y.  Supp.  851,  hold- 
ing agreement  for  separation  not  affected  by  wife's  subsequent  action  for  divorce : 
Meyerl  v.  Meyerl,  125  Mich.  610,  84  N.  W.  1100,  holding  that  wife  can  file  bilT 
for  separate  maintenance  under  statute,  when  husband  refuses  to  perform  separa- 
tion agreement;  Bufe  v.  Bufe,  88  Mo.  App.  634,  holding  antenuptial  agreement 
to  release  dower  in  consideration  of  sum  paid  after  marriage,  not  affected  by 
divorce;  Chamberlain  v.  Cuming,  37  Misc.  816,  76  N.  Y.  Supp.  896,  holding  separa- 
tion agreement  made  after  separation,  valid;  Foote  v.  Xickerson,  70  X.  H.  512r 
54  L.  R,  A.  563,  footnote,  p.  554,  48  Atl.  1088,  holding  agreement  to  dissolve 
marriage  tie,  void;  Bowers  v.  Hutchinson.  67  Ark.  25,  53  S.  W.  399,  holding  that 
separation  agreement  releases  wife's  right  to  share  in  husband's  personal  estate  ; 
Jones  v.  Jones,  1  Colo.  App.  31,  27  Pac.  85,  holding  new  agreement  for  support 
of  wife  as  long  as  she  is  unmarried,  made  after  divorce,  releases  husband  from 
former  agreement;  Lawrence  v.  Lawrence,  32  Misc.  505,  66  X.  Y.  Supp.  393. 
holding  separation  agreement  before  separation,  pending  divorce,  invalid;  Hughe-* 
v.  Cuming,  36  App.  Div.  305,  55  X.  Y.  Supp.  256,  holding  agreement  to  con- 
tinue to  live  apart,  made  after  separation,  valid;  Greenleaf  v.  Blakeman,  40  App. 
Div.  376,  58  X.  Y.  Supp.  76,  holding  agreement  that  husband  should  furnish  se- 
curity in  articles  of  separation  binding  and  enforceable  by  trustee;  Atherton  v. 
Atherton,  82  Hun,  186,  31  X.  Y.  Supp.  977,  holding  separation  agreement  is 
binding  and  determines  amount  of  compensation  for  support;  Duryea  v.  Bliven, 
122  X.  Y.  570,  25  X.  E.  908,  holding  that  prohibition  of  father  from  seeing  chil- 
dren, as  provided  in  agreement,  prevents  wife's  recovery  of  payments;  Buckel  v. 
Suss,  28  Abb.  X.  C.  24,  18  N.  Y.  Supp.  719,  holding  that  wife  cannot  maintain 
action  for  alienating  affection  of  husband  after  voluntary  separation;  Carling  v. 
Carling,  42  Misc.  493,  86  X.  Y.  Supp.  46,  holding  contract  between  husband  and 
wife,  after  separation,  for  her  support,  though  not  against  public  policy,  not 
actionable;  People  ex  rel.  Public  Charities  &  Correction  v.  Cullen,  153  X.  Y.  636, 
44  L.R.A.  423,  47  X.  E.  894.,  12  X.  Y.  Crim.  Rep.  466,  holding  wife  not  abandoned 
by  husband  when  she  has  obtained  decree  of  separation;  Clark  v.  Fosdick,  118 
X.  Y.  18,  23  X.  E.  136  (dissenting  opinion),  majority  holding  tripartite  agree- 
ment for  separation  enforceable  by  trustee;  Barnes  v.  Klug,  129  App.  Div.  196r 


1109  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  487 

113  X.  Y.  Supp.  324;  Effray  v.  Effray,  110  App.  Div.  547,  97  N.  Y.  Supp.  286,— 
holding  articles  of  separation  valid  where  separation  has  already  taken  place; 
Moreland  v.  Moreland,  108  Va.  103,  60  S.  E.  730,  holding  a  contract  for  main- 
tenance of  wife  by  husband  is  always  enforcible;  Winter  v.  Winter,  191  X.  Y.  468, 
16  L.R.A.  (X.S.)  713,  84  X.  E.  382,  holding  where  husband  and  wife  having  sep- 
arated enter  into  an  agreement  to  live  separate  and  husband  to  pay  a  certain 
amount  to  wife  for  her  support  that  wife  might  enforce  same  in  her  own  name; 
Bailey  v.  Dillon,  186  Mass.  246,  66  L.R.A.  428,  71  N.  E.  538,  holding  an  agreement 
"between  husband  and  wife  whereby  property  is  placed  in  trust  for  support  of 
wife  might  be  enforced;  Buttlar  v.  Buttlar,  71  N.  J.  Eq.  676,  65  Atl.  485,  holding 
that  a  decree  of  divorce  will  divest  a  wife  of  her  rights  under  articles  of  sepa- 
ration; Hiett  v.  Hiett,  74  Xeb.  100,  103  N.  W.  1051,  holding  articles  of  agree- 
ment made  after  separation  if  fair  and  free  from  fraud  are  binding;  Halstead 
•v.  Halstead,  74  X.  J.  Eq.  599,  70  Atl.  928,  sustaining  separation  agreement 
as  to  alimony;  Pryor  v.  Pryor,  88  Ark.  309,  129  Am.  St.  Rep.  102,  114  S.  W.  700, 
holding  that  a  husband  may  contract  for  the  payment  of  alimony  in  contempla- 
tion of  an  immediate  divorce;  Whitney  v.  Whitney  Elevator  &  Warehouse  Co. 
180  Fed.  192,  holding  that  the  court  cannot  in  a  suit  for  divorce  abrogate  or 
change  provisions  in  a  previous  valid  contract  of  separation  without  consent  of 
parties. 

Cited  in  footnotes  to  Baum  v.  Baum,  53  L.  R.  A.  650,  which  holds  void,  separa- 
tion agreement  on  consideration  that  husband  support  wife  and  children,  and 
assign  policies  on  his  life;  Palmer  v.  Palmer,  61  L.  R.  A.  641,  which  holds  void, 
contract  between  husband  and  wife  to  secure  divorce;  Bailey  v.  Dillon,  66  L.R.A. 
427,  which  sustains  right  of  husband  and  wife  in  contemplation  of  separation 
to  enter  into  fair  and  reasonable  agreement  through  intervention  of  trustee  as 
to  wife's  support  which  during  continuance  of  separation  husband  may  have 
specifically  enforced. 

Cited  in  notes  (9  L.  R.  A.  113)   on  articles  of  separation;   (6  L.  R,  A.  132)   as 
to  when  agreement  of  separation  valid;    (12  L.R.A,(N.S.)   850,  852)   on  validity 
of  agreement  between  husband  and  wife  renouncing  marital  rights;    (83  Am.  St. 
Rep.  863,  869,  871,  874,  875)   on  validity  and  effect  of  separation  agreements. 
Alimony. 

Cited  in  Wells  v.  W7ells,  10  N.  Y.  S.  R,  255,  holding  allowance  of  one  half 
earning  capacity  of  husband  not  excessive;  Johns  v.  Johns,  44  App.  Div.  536, 
60  X.  Y.  Supp.  865,  holding  that  right  to  alimony  ceases  with  death  of  husband; 
Grube  v.  Grube,  65  App.  Div.  241,  72  N.  Y.  Supp.  529,  denying  weekly  allowance 
pending  action  for  divorce  when  separation  agreement  in  force;  Taylor  v.  Taylor, 
32  Misc.  314,  66  X.  Y.  Supp.  561,  denying  right  to  alimony  in  divorce  action  after 
wife  has  released  husband  from  liability  for  support;  France  v.  France,  38 
Misc.  460,  77  X.  Y.  Supp.  1015,  holding  bond  by  husband  to  support  wife,  after 
separation,  enforceable;  Byrnes  v.  Byrnes,  126  App.  Div.  623,  111  N.  Y.  Supp. 
72,  holding  that  a  subsequent  commission  of  adultery  by  husband  does  not  affect 
.a  former  decree  separating  husband  and  wife  from  bed  and  board;  State  v. 
Karagavoorian,  32  R.  I.  483,  79  Atl.  1111,  to  the  point  that  wife  cannot  in  action 
for  divorce  obtain  alimony  other  than  that  specified  in  articles  of  separation. 

Cited  in  footnotes  to  Filer  v.  Filer,  6  L.  R.  A.  399,  which  holds  jurisdiction  to 
allow  alimony  not  ousted  by  plea  of  dismissal  of  former  suit  for  absolute 
divorce;  Henderson  v.  Henderson,  48  L.  R.  A.  766,  which  holds  that  decree  in  con- 
formity with  separation  agreement  for  payment  of  stipulated  monthly  sum  for 
ivife's  maintenance  cannot  be  modified  without  wife's  consent. 


6  L.R.A.  487]  L.  R.  A.  CASES  AS  AUTHORITIES. 

Condonation  and  reconciliation. 

Cited  in  Adams  v.  Adams,  57  Misc.  152,  106  N.  Y.  Supp.  1064,  holding  that  a 
husband  defendant  cannot  compel  his  plaintiff  wife  to  enter  final  judgment  where 
she  is  entitled  to  an  absolute  divorce  and  has  an  interlocutory  judgment  in  her 
favor. 

6  L.  R.  A.  491,  ADAMS  v.  IRVING  NAT.  BANK,  116  N.  Y.  606,  15  Am.  St.  Rep. 

447,  23  N.  E.  7. 
What   matters   considered   on   appeal. 

Cited  in  Martin  v.  Home  Bank,  160  N.  Y.  199,  54  N.  E.  717,  holding  that 
grounds  for  reversal  will  not  be  considered  on  appeal  if  questions  not  raised  in 
trial  court;  Dr.  David  Kennedy  Corp.  v.  Kennedy,  165  N.  Y.  362,  59  N.  E.  133, 
holding  that  defense  not  raised  at  trial  cannot  be  presented  first  on  appeal ; 
Reich  v.  Cochran,  151  N.  Y.  129,  37  L.  R.  A.  808,  56  Am.  St.  Rep.  607,  45  N.  E. 
367,  holding  that  questions  as  to  regularity  of  proceedings  and  vaildity  of  judg- 
ment cannot  be  raised  first  on  appeal;  Sterrett  v.  Third  Nat.  Bank,  122  N.  Y. 
662,  3  Silv.  Ct.  App.  140,  25  N.  E.  913,  holding  that  question  as  to  remedy  can- 
not be  considered  on  appeal  from  ruling  on  motion  for  nonsuit  on  ground  that 
case  not  made  by  plaintiff;  Lanahan  v.  Henry  Zeltner  Brewing  Co.  20  Misc.  554, 
46  N.  Y.  Supp.  431,  holding  motion  to  dismiss  at  close  of  evidence,  without  indi- 
cating particular  in  which  proof  insufficient,  not  reviewable  on  appeal;  Brozek  v. 
Steinway  R.  Co.  161  N.  Y.  65,  55  N.  E.  395;  Wells  v.  Higgins,  132  N.  Y.  464, 
30  N.  E.  464,  861,  refusing  to  sustain  general  exception  when  charge  correct  in' 
part;  Friend  v.  Jetter,  19  Misc.  105,  43  N.  Y.  Supp.  287,  holding  general  excep- 
tion to  instruction  insufficient,  when  charge  not  obviously  bad. 
Duress. 

Cited  in  Lazzarone  v.  Oishei,  2  Misc.  203,  21  N.  Y.  Supp.  267;  Sawyer  v, 
Gruner,  44  N.  Y.  S.  R.  204,  17  N.  Y.  Supp.  465,  holding  party  enabled  by  circum- 
stances to  exercise  controlling  influence  over  conduct  of  another,  not  permitted 
to  use  position  for  purposes  of  extortion;  Tucker  v.  Roach,  139  Ind.  288,  38  N.  E. 
822,  holding  mortgage  procured  through  fraud,  in  settlement  of  invalid  claim,  un- 
enforceable; Sistare  v.  Heckscher,  15  N.  Y.  Supp.  739,  setting  aside  conveyance  of 
wife  to  husband's  creditor,  induced  by  false  representation  of  husband  that  same 
necessary  to  save  him  from  financial  ruin;  Silsbee  v.  Webber,  171  Mass.  381, 
50  N.  E.  555,  holding  proof  of  transfer  of  property  made  to  prevent  threatened 
report  to  father  of  son's  embezzlement,  sufficient  to  go  to  jury  on  question  of 
duress;  Gray  v.  Freeman,  37  Tex.  Civ.  App.  562,  84  S.  W.  1105,  holding  that 
threats  must  be  controlling  influence  over  the  will;  Sawyer  v.  Gruner,  28  Jones  & 
S.  288,  17  N.  Y.  Supp.  465,  holding  that  money  paid  under  duress  or  compulsion 
might  be  recovered;  Kilpatrick  v.  Germania  L.  Ins.  Co.  183  N.  Y.  170,  2  L.R.A. 
(N.S.)  579,  111  Am.  St.  Rep.  722,  75  N.  E.  1124,  holding  that  an  illegal  bonus 
obtained  by  duress  might  be  recovered. 

Cited  in  footnotes  to  Flack  v.  National  Bank  of  Commerce,  17  L.  R.  A.  583, 
which  holds  threat  by  bank  to  institute  proceedings  to  collect  unmatured  note  not 
duress;  First  Nat.  Bank  v.  Sargent,  59  L.  R.  A.  296,  which  holds  payment  of 
bonus  exacted  of  debtor  as  condition  to  reconveyance  of  real  estate  held  as  se- 
curity, may  be  recovered  back;  Springfield  F.  &  M.  Ins.  Co.  v.  Hull,  25  L.  R.  A. 
37,  which  upholds  right  to  maintain  suit  for  balance  due  on  policy  without 
tendering  back  less  sum  accepted  under  threats  of  groundlesss  prosecution. 

Cited  in  notes  (9  L.R.A.  633)  on  when  payment  involuntary;  (30  Am.  St. 
Rep.  337,  338)  on  duress  by  frauds;  (94  Am.  St.  Rep.  419)  on  recovery  back  of 
voluntary  payment. 


1111  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  491 

Distinguished  in  Jewelers'  League  v.  De  Forest,  80  Hun,  379,  30  X.  Y.  Supp. 
88,  holding  threat  to  dispose  of  son's  remains  contrary  to  mother's  wish,  not 
ground  for  avoiding  assignment  of  insurance  policy;  Foerster  v.  Squier,  46  N.  Y. 
S.  R.  292,  19  N.  Y.  Supp.  387,  holding  indorsement  of  note  under  threat  of  payee 
to  file  mechanic's  lien  against  buildings  being  erected  for  indorser,  is  for  valuable 
consideration. 
Threatening;  persons  innocent  of  offense. 

Cited  in  Cribbs  v.  Sowle,  87  Mich.  348,  24  Am.  St.  Rep.  166,  49  N.  W.  587,  hold- 
ing money  extorted  on  fictitious  claim  under  threat  of  imprisonment  on  false 
charge, 'recoverable ;  Jaeger  v.  Koenig,  30  Misc.  582,  62  N.  Y.  Supp.  803,  holding 
recoverable,  money  paid  by  wife  to  husband's  employer,  on  representation  that 
husband  would  otherwise  be  prosecuted  for  larceny;  Heaton  v.  Norton  County 
State  Bapk,  59  Kan.  292,  52  Pac.  876,  holding  contract  transferring  wife's  prop- 
erty to  creditor  of  husband,  under  threat  of  criminal  prosecution  of  latter,  not 
binding;  Buckley  v.  New  York,  30  App.  Div.  466,  52  N.  Y.  Supp.  452,  holding 
payment  for  license  to  construct  vault,  induced  by  threat  of  city  inspector  to 
have  workman  arrested,  and  stop  construction  of  building,  not  voluntary. 

Cited  in  note  (26  L.  R.  A.  58)  on  contracts  procured  by  threats  of  prosecution 
of  relative. 
Threatening-   to    prosecute   person    amenable    to    criminal    process. 

Cited  in  Hartford  F.  Ins.  Co.  v.  Kirkpatrick,  111  Ala.  467,  26  So.  651,  holding 
settlement  of  claim  procured  by  threat  of  arrest  and  imprisonment  unlawful ; 
Thompson  v.  Niggley,  53  Kan.  664,  26  L.  R,  A.  805,  35  Pac.  290,  holding  securities 
extorted  by  threats  of  person  amenable  to  criminal  prosecution,  voidable ;  Morse 
v.  Woodworth,  155  Mass.  252,  29  X.  E.  525,  holding  contract  procured  by  threats 
of  imprisonment,  not  enforceable;  City  Nat.  Bank  v.  Kusworm,  88  Wis.  199,  26 
L.  R.  A.  62,  43  Am.  St.  Rep.  880,  59  N.  W.  564,  holding  that  wife  may  avoid  note 
given  under  threat  of  criminal  prosecution  of  sick  husband ;  Hargreaves  v. 
Korcek,  44  Neb.  670,  62  N.  W.  1086,  holding  mortgage  procured  on  homestead 
under  threats  of  imprisonment  of  guilty  husband,  not  enforceable;  Gorringe  v. 
Reed,  23  Utah,  137,  90  Am.  St.  Rep.  692,  63  Pac.  902,  holding  deed  executed  by 
wife  to  prevent  threatened  prosecution  of  guilty  husband,  voidable;  Hensinger  v. 
Dyer,  147  Mo.  229,  48  S.  W.  912,  holding  wife's  execution  of  contract  induced 
by  threats  of  criminal  prosecution  of  husband,  voidable;  Perkins  v.  Adams,  17 
Tex.  Civ.  App.  335,  43  S.  W.  529,  holding  contract  of  infirm  person  induced  by 
threat  of  prosecution  of  his  sons  for  selling  mortgaged  property,  voidable ;  Strang 
v.  Peterson,  56  Hun,  421,  10  N.  Y.  Supp.  139  (dissenting  opinion),  majority  hold- 
ing mortgage  for  payment  of  son's  obligation  arising  from  forgery,  and  to  pre- 
vent criminal  prosecution,  void;  Marlatte  v.  Weickgenant,  147  Mich.  274,  110 
N.  W.  1061,  holding  that  an  action  on  the  case  will  be  to  redress  extortion  of 
money  by  means  of  an  abuse  of  criminal  process;  Williamson,  H.  F.  Co.  v.  Acker- 
man,  77  Kan.  508,  20  L.R.A.(N.S.)  491,  94  Pa.  807,  setting  aside  a  mortgage 
made  by  father  because,  of  threat  of  prosecution  of  son  though  son  was  guilty; 
Burton  v.  McMillan,  52  Fla.  482,  8  L.R.A.  (N.S.)  995,  120  Am.  St.  Rep.  220,  42 
So.  849,  11  A.  &  E.  Ann.  Cas.  380,  setting  aside  a  deed  executed  by  wife  under 
threats  of  prosecution ;  Kwentsky  v.  Sirovy,  142  Iowa,  400,  121  N.  W.  27,  hold- 
ing that  a  deed  obtained  by  threat  of  criminal  prosecution  might  be  set  aside; 
Yowcll  v.  Walker,  118  La.  47,  42  So.  635,  on  invalidity  of  notes  given  for  prom- 
ise to  stop  a  criminal  prosecution;  Ball  v.  Ward,  76  N.  J.  Eq.  27,  74  Atl.  158, 
holding  that  threats  of  criminal  prosecution  of  son  constitutes  duress  though 
imprisonment  would  be  lawful:  Bianchi  v.  Leon,  138  App.  Div.  226,  122  X.  Y. 
Supp.  1004,  to  the  point  that  settlement  of  demand  by  threat  of  criminal  prosecu- 


6  L.R.A.  491]  L.  R.  A.  CASES  AS  AUTHORITIES.  1112 

tion  may  be  set  aside;  Vroom  v.  Litt,  70  Misc.  376,  128  N.  Y.  Supp.  758.  hold- 
ing that  obtaining  money  under  threats  of  lawful  arrest  on  criminal  charge 
constitutes  duress. 

Distinguished  in  Gregor  v.  Hyde,  10  C.  C.  A.  293,  27  U.  S.  App.  75,  62  Fed.  110, 
holding  threat  of  lawful  arrest  of  person  amenable  to  criminal  prosecution  not 
ground  for  cancelation  of  deed  by  parent. 

6  L.  R.  A.  495,  DARROW  v.  FAMILY  FUND  SOC.  116  N.  Y.  537,  15  Am.  St. 

Rep.  430,  22  N.  E.  1093. 
Construction    of    conditions    in    policy. 

Cited  in  Berliner  v.  Travelers'  Ins.  Co.  121  Cal.  461,  41  L.  R.  A.  469,  66  Am. 
St.  Rep.  49,  53  Pac.  918,  holding  locomotive  "conveyance  for  passengers"  within 
provision  of  accident  policy  imposing  double  liability  for  death  therein;  Moulton 
v.  Aetna  F.  Ins.  Co.  25  App.  Div.  281,  49  N.  Y.  Supp.  570,  holding  chattel  mortgage 
of  firm  property  by  one  partner  to  another  to  secure  advances  by  latter  to  firm, 
not  encumbrance  within  provision  of  fire  policy;  Mead  v.  American  F.  Ins.  Co. 
13  App.  Div.  480,  43  N.  Y.  Supp.  334,  holding  double  insurance  resulting  from 
operation  of  law,  not  violation  of  condition  against  additional  insurance ;  Caraher 
v.  Royal  Ins.  Co.  63  Hun,  93,  17  N.  Y.  Supp.  858,  holding  condition  in  fire  policy 
against  vacancy,  not  violated  where  insured  church  tended  by  sexton  and  visited 
by  rector,  though  no  services  held;  Sneck  v.  Travelers'  Ins.  Co.  88  Hun,  97,  34 
"N.  Y.  Supp.  545,  holding  "entire  hand"  lost  within  provisions  of  accident  policy, 
where  fingers  amputated  and  use  of  entire  hand  lost;  Coles  v.  New  York  Casualty 
•Co.  87  App.  Div.  46,  83  N.  Y.  Supp.  1063,  holding  exception  in  accident  policy  of 
injuries  resulting  from  "fighting"  does  not  cover  injuries  to  bartender  attacked 
by  customer  ordered  to  leave;  Sneck  v.  Travelers'  Ins.  Co.  81  Hun,  335,  30  N.  Y. 
Supp.  881  (dissenting  opinion),  majority  holding  amputation  of  fingers  causing 
'loss  of  use  of  entire  hand,  not  loss  of  entire  hand  within  provision  of  accident 
policy;  England  v.  Westchester  F.  Ins.  Co.  81  Wis.  589,  29  Am.  St.  Rep.  917,  51 
N.  W.  954,  holding  that  condition  against  vacancy  of  premises  operates  from 
moment  policy  takes  effect,  though  premises  then  vacant;  Phillips  v.  United 
-States  Grand  Lodge,  I.  O.  S.  B.  37  Misc.  870,  76  N.  Y.  Supp.  1000,  burden  of 
proof  on  insurer  to  show  beneficiary's  failure  to  serve  notice  of  death  as  required 
"by  policy;  Spitz  v.  Mutual  Ben.  Life  Asso.  5  Misc.  251,  25  N.  Y.  Supp.  469,  hold- 
ing failure  to  state  membership  in  benevolent  association  or  to  disclose  existence 
of  half-brothers  in  answer  to  inquiries  as  to  other  insurance  and  living  brothers, 
not  suppression  of  material  facts  avoiding  insurance;  Cole  v.  Preferred  Acci.  Ins. 
Co.  40  Misc.  262,  81  N.  Y.  Supp.  901,  giving  proviso  limiting  time  for  bringing 
action  on  policy  construction  most  favorable  to  insured;  Behling  v.  Northwest- 
ern Nat.  L.  Ins.  Co.  117  Wis.  27,  93  N.  W.  800,  holding  that  court  cannot,  to 
prevent  forfeiture,  go  further  than  fair  construction  of  language  permits ;  Darling 
v.  Protective  Assur.  Soc.  71  Misc.  117,  127  N.  Y.  Supp.  486,  holding  that  for 
purpose  of  upholding  insurance  policy  its  provisions  will  be  strictly  construed 
against  insurer. 

Cited  in  notes  (17  Am.  St.  Rep.  247)  on  waiver  of  conditions  in  insurance 
policies;  (13  L.R.A.(N.S-)  262)  on  necessity  that  death  be  reasonable  and  legiti- 
mate consequence  of  violation  of  law,  to  relieve  insurer;  (14  Eng.  Rul.  Cas.  19) 
on  rules  for  construing  insurance  policies. 

Distinguished  in  Baldwin  v.  Provident  Sav.  Life  Assur.  Soc.  23  App.  Div.  7, 
48  N.  Y.  Supp.  463,  holding  policy  voided  by  failure  to  pay  mortuary  premium 
within  stipulated  time  limit;  Fitzgerald  v.  Supreme  Council,  Catholic  Mut.  Ben. 
Asso.  39  App.  Div.  256,  56  N.  Y.  Supp.  1005,  holding  statements  in  medical  ex- 
amination and  application  not  warranties  when  not  referred  to  in  policy;  Sterna- 


1113  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  495 

man  v.  Metropolitan  L.  Ins.  Co.  49  App.  Div.  476,  63  N.  Y.  Supp.  674,  holding 
insured  bound  by  application  warranting  correct  record  of  medical  examination, 
though  incorrectly  written  by  examiner;  Duran  v.  Standard  Life  &  Acci.  Ins.  Co. 
63  Vt.  438,  13  L.  R.  A.  638,  25  Am.  St.  Rep.  773,  22  Atl.  530,  holding  hunting  on 
Sunday  "violation  of  law"  within  exemption  from  liability. 
Suicide. 

Cited  in  Campbell  v.  Supreme  Conclave  I.  O.  H.  66  N.  J.  L.  282.  54  L.  R.  A. 
579,  49  Atl.  550;  Morris  v.  State  Mut.  Life  Assur.  Co.  183  Pa.  573,  41  W.  X.  C. 
355,  39  Atl.  52,  enforcing  policy  in  favor  of  wife  as  beneficiary  where  no  pro- 
vision against  liabilty  in  case  of  suicide;  Supreme  Conclave,  I.  O.  H.  v.  Miles. 
02  Md.  628,  84  Am.  St.  Rep.  528,  48  Atl.  845,  holding  suicide  no  defense  where 
there  is  no  provision  against  same  and  policy  was  obtained  in  good  faith; 
Meacham  v.  New  York  State  Mut.  Ben.  Asso.  120  X.  Y.  242,  24  X.  E.  283,  holding 
suicide  not  violation  of  "laws  of  the  land"  within  provision  avoiding  policy; 
Royal  Circle  v.  Achterrath,  204  111.  566,  63  L.  R.  A.  458,  98  Am.  St.  Rep.  224, 
08  X.  E.  492,  holding  suicide  not  death  "on  account  of  violation  of  any  criminal 
law,"  within  provision  avoiding  mutual  benefit  certificate;  Seller  v.  Economic 
Life  Asso.  105  Iowa,  95,  43  L.  R.  A.  540,  74  X.  W.  941,  holding  beneficiary  en- 
titled to  enforce  policy  after  insured's  suicide  where  no  provision  against  liability 
in  such  event;  Patterson  v.  Xational  Premium  Mut.  L.  Ins.  Co.  100  Wis.  123, 
42  L.  R.  A.  258,  69  Am.  St.  Rep.  899,  75  X.  W.  980,  holding  suicide  covered  by 
"incontestable"  clause  of  policy  though  technically  a  crime;  Grand  Legion,  K.  of 
A.  v.  Beaty,  224  111.  349,  8  L.R.A.  (X.S.)  1128,  79  X.  E.  565,  8  A.  &  E.  Ann.  Cas. 
160,  holding  suicide  of  a  member  of  a  mutual  benefit  society  did  not  defeat  re- 
covery. 

Cited  in  footnotes  to  Wells  v.  Xew  England  Mut.  L.  Ins.  Co.  53  L.R.A.  327, 
which  denies  right  to  recover  on  policy  for  death  of  one  voluntarily  submitting  to 
abortion  to  get  rid  of  illegitimate  child;  Shipman  v.  Protected  Home  Circle,  63 
L.R.A.  347,  which  holds  rights  of  beneficiary  terminated  by  suicide  of  assured; 
Royal  Circle  v.  Achterrath,  63  L.R.A.  452,  which  holds  suicide  not  a  crime  with- 
in meaning  of  benefit  certificate. 

Cited  in  notes  (78  Am.  St.  Rep.  264)  on  suicide  as  crime:  (84  Am.  St.  Rep. 
541,  543,  544)  on  self-destruction  as  defense  to  life  insurance;  (8  L.R.A. (X.S. ) 
1125)  on  suicide  while  sane  as  defense  to  action  on  policy  or  certificate  contain- 
ing no  provision  as  to  effect  thereof. 

Distinguished  in  Hart  v.  Modern  Woodmen,  60  Kan.  681,  72  Am.  St.  Rep.  380. 
57  Pac.  936,  holding  provision  against  liability  for  suicide  ''sane  or  insane" 
exempts  company  where  insured  conscious  of  physical,  if  not  moral,  consequences 
of  act;  McCoy  v.  Xorthwestern  Mut.  Relief  Asso.  92  Wis.  582,  47  L.  R.  A.  684, 
66  X.  W.  697,  holding  provision  of  policy  excluding  liability  for  suicide  binding 
though  unauthorized  by  by-laws  of  association;  Cady  v.  Brooklyn  Union  Pub.  Co. 
23  Misc.  410,  51  X.  Y.  Supp.  198,  holding  false  publication  of  suicide  libelous 
per  se  as  injurious  professionally  though  not  charge  of  crime. 

Overruled  in  Shipman  v.  Protected  Home  Circle,  174  X.  Y.  410,  63  L.  R.  A. 
352,  67  X.  E.  83,  holding  suicide  of  insured  while  sane  avoids  mutual  benefit  cer- 
tificate, under  provision  against  death  caused  by  own  illegal  act. 
Death  in  consequence  of  crime. 

Cited  in  McCue  v.  Xorthwestern  Mut.  L.  Ins.  Co.  93  C.  C.  A.  71,  167  Fed.  439. 
holding  execution  of  insured  for  crime  one  of  risks  assumed  by  insurer. 

Cited  in  footnote  to  Supreme  Lodge  K.  of  P.  v.  Bradley,  67  L.R.A.  770,  which 
holds  clause  in  policy  relieving  insurer  from  liability  for  death  due  to  violation 


6  L.R.A.  495]  L.  R.  A.  CASES  AS  AUTHORITIES.  1114 

of  any   criminal    law   inapplicable  where   insured  was   shot  while   attempting   in 
good  faith  to  escape  from  a  personal  difficulty  brought  on  by  himself. 
Action   on  assessment   policy. 

Cited  in  Aiken  v.  Massachusetts  Ben.  Asso.  34  N.  Y.  S.  R.  697,  13  X.  Y.  Supp. 
579,  holding  liability  for  face  of  policy  complete  where  assessment  returns  full 
amount;  Martin  v.  Equitable  Acci.  Asso.  55  Hun,  576,  9  N.  Y.  Supp.  16,  holding 
that  where  'one  sues  on  an  assessment  policy  because  of  failure  of  insurance 
society  to  make  an  assessment  that  plaintiff  must  show  amount  he  would  have 
received  had  assessment  been  made. 

Cited  in  notes  (8  L.R.A.  116)  on  action  on  contract  of  mutual  benefit  asso- 
ciation; (52  Am.  St.  Rep.  577,  578)  on  action  on  mutual  or  membership  life  or 
accident  insurance. 

Distinguished  in  Martin  v.  Equitable  Acci.  Asso.  55  Hun,  576,  9  N.  Y.  Supp. 
16,  reversing  judgment  on  verdict  where  no  proof  of  amount  which  would  have 
been  realized  on  assessment. 
Deatb    fund. 

Cited  in  Re  Equitable  Reserve  Fund  Life  Asso.  61  Hun,  307,  16  N.  Y.  Supp.  80, 
holding  death  claims  to  be  paid  pro  rata  out  of  reserve  fund  of  insolvent  cor- 
poration, where  death  fund  insufficient. 

Distinguished  in  Re  Equitable  Reserve  Fund  Life  Asso.  131  N.  Y.  373,  30 
N.  E.  114,  holding  insured  not  entitled  to  resort  to  reserve  fund  on  insufficiency 
of  death  fund  of  insolvent  company,  when  former  held  for  distinct  purposes. 

6  L.  R.  A.  498,  HESS  v.  CULVER,  77  Mich.  598,   18  Am.  St.  Rep.  421,  43  N. 

W.  994. 
Fraudulent    representations. 

Cited  in  Kelley  v.  Chenango  Valley  'Sav.  Bank,  21  Misc.  249,  45  N.  Y.  Supp. 
651,  holding  savings  bank  liable  to  depositors  for  putting  deposits  in  insolvent 
bank  which  former  claimed  was  under  its  control;  Sanford  v.  Royal  Ins.  Co.  11 
Wash.  670,  40  Pac.  609,  holding  release  of  insurer  procured  by  fraud  after  loss, 
invalid;  Diel  v.  Kellogg,  163  Mich.  171,  128  N.  W.  420,  holding  that  letter 
written  with  intent  that  it  be  used  to  induce  purchase  of  stock  was  admissible  to 
establish  fraudulent  intent  and  complicity  of  promoter. 

Cited  in  note    (85  Am.  St.  Rep.   380)    on  liability  for  misrepresentations   in- 
directly made  to  complaining  party. 
Statute   of   frands. 

Cited  in  Kemp  v.  National  Bank,  48  C.  C.  A.  219,  109  Fed.  53,  holding  statute 
of  frauds  not  available  to  bank  officer  for  false  and  fraudulent  statement  as  to 
bank's  condition;  Clark  v.  Hurd,  79  Mich.  132,  44  N.  W.  343,  holding  oral  repre- 
sentation as  to  persons  composing  partnership,  to  induce  sale  of  goods,  not 
within  statute. 
Bohemian  oats. 

Followed  in  Pearl  v.  Walter,  80  Mich.  318,  45  N.  W.  181,  facts  being  almost 
identical  with  those  of  cited  case. 

Cited  in  Leland  v.  Goodfellow,  84  Mich.  362,  47  1ST.  W.  591,  holding  declaration 
in  action  for  unauthorized  transfer  of  note  for  Bohemian  oats,  insufficient,  in  not 
alleging  defendant's  connections  with  fraud. 

Cited  in  footnote  to  Griffith  v.  Shipley,  14  L.  R.  A.  405,  which  holds  purchaser 
of  note  known  to  have  been  given  for  "hulless  oats"  not  a  bona  fide  purchaser. 

Cited  in  notes  (6  L.  R.  A.  501)  on  Bohemian  oats  transactions;  (8  L.  R.  A. 
476)  on  relief  from  contract  obtained  by  fraud;  (18  Am.  St.  Rep.  438)  on  Bohe- 
mian-oat transactions. 


1115  L.  R.  A.  CASES  AS  AUTHORITIES,  [6  L.R.A,  503 

Distinguished  in  Knight  v.  Linzey,  80  Mich.  396,  8  L.  R.  A.  477,  45  N.  W.  337, 
holding  that  plaintiff  knowing  fraudulent  character  of  Bohemian  oat  swindle  can- 
not recover  money  paid  in  redeeming  note  given  for  oats. 
Misrepresentation**  as  to  credit  of  third  person. 

Cited  in  Getchell  v.  Dusenbury,  145  Mich.  202,  108  N.  W.  723,  holding  officers 
of  corporation  not  liable  for  representations  as  to  corporation,  made  by  them  in 
good  faith  where  they  make  no  profit  thereby;  Massey  v.  Luce,  158  Mich.  134, 
122  X.  W.  514,  holding  officers  making  false  and  fraudulent  representations  as  to 
condition  of  corporation,  personally  liable. 

Distinguished  in  Knight  v.  Rawlings,  205  Mo.  428,  13  L.R.A.(N.S.)    212,  104 
S.  W.  38,  12  A.  &  E.  Ann.  Gas.  325,  holding  under  statute  that  no  action  will 
lie  for  oral  misrepresentations  as  to  a  third  party's  credit. 
Liability  of  transferer  of  tainted  note. 

Cited  in  note   (27  L.  R.  A.  520,  521)    on  liability  for  transferring  negotiable 
note  to  bona  fide  holder  so  as  to  cut  off  defenses. 
In    part    delicto. 

Cited  in  Klein  v.  Pederson,  65  Neb.  455,  91  N.  W.  281,  holding  money  paid  to 
prevent  criminal  prosecution  recoverable  from  one  obtaining  it  by  fraudulent 
representations. 

Cited  in  notes   (12  L.R.A.  122;  22  Am.  St.  Rep.  539)   on  remedies'  where  party 
in  pari  delicto. 
Nature  of  contract  as  determining-  validity. 

Cited  in  footnote  to  Hunt  v.  Rumsey,  9  L.  R.  A.  674,  which  holds  note  in  part 
payment  of  note  void  for  fraud,  also  void. 

6  L.  R.  A.  501,  EVANS  v.  STUHRBERG,  78  Mich.  145,   18  Am.  St.  Rep.  435, 

43  N.  W.   1046. 
Obligation   on   contract   tainted  -with   fraud. 

Cited  in  footnotes  to  Hunt  v.  Rumsey,  9  L.  R.  A.  674,  which  holds  note 
in  part  payment  of  note  void  for  fraud,  also  void;  Griffith  v.  Shipley,  14  L.  R. 
A.  405,  which  holds  purchaser  of  note  known  to  have  been  given  for  "hulless 
oats"  not  a  bona  fide  purchaser. 

Cited  in  notes  (6  L.  R.  A.  499)  on  nature  of  contract  as  determining  its  va- 
lidity; (7  L.  R.  A.  705)  on  when  promissory  note  invalid;  (8  L.  R.  A.  476)  on 
relief  from  contract  obtained  by  fraud. 

«  L.  R.  A.  503,  McCREERY  v.  DAY,   119  N.  Y.   1,   16  Am.   St.  Rep.   793,   23 

N.  E.   198. 
Recovery    under   rescinded    contract. 

Cited  in  New  York  v.  New  York  Refrigerating  Constr.  Co.  146  N.  Y.  214, 
40  N.  E.  771,  and  Eames  Vacuum  Brake  Co.  v.  Prosser,  157  N.  Y.  295,  51  N. 
E.  986,  Affirming  88  Hun,  345,  34  N.  Y.  Supp.  398,  holding  claim  founded  on 
rescinded  contract  in  respect  to  performance  unavailable  unless  reserved  in 
rescission  agreement;  Browne  v.  Empire  Type  Setting  Mach.  Co.  44  App.  Div. 
602,  61  N.  Y.  Supp.  126,  holding  advances  made  under  rescinded  contract  not 
recoverable  unless  repayment  provided  for  in  agreement  of  rescission;  Doherty 
v.  Shields,  86  Hun,  306,  33  N.  Y.  Supp.  497,  sustaining  recovery  for  materials 
brought  on  ground  under  special  contract,  and  not  included  in  rescission  agree- 
ment; Hurst  v.  Trow  Printing  &  Bookbinding  Co.  2  Misc.  368,  22  X.  Y.  Supp. 
371.  holding  rescission  of  contract  in  connection  with  which  series  of  notes  given, 
simply  determined  contract  as  to  unexpired  period;  Benedict  v.  Sliter,  82  Hun, 
197,  31  N.  Y.  Supp.  413,  sustaining  recovery  for  services  rendered  in  expectation 


6  L.R.A.  503]  L.  R.  A.  CASES  AS  AUTHORITIES. 

of  payment,  after  abandonment  of  contract  to  take  care  of  lunatic  during  life; 
Hayes  v.  Nashville,  26  C.  C.  A.  67,  47  U.  S.  App.  713,  80  Fed.  649,  holding  that 
party  rescinding  contract  may  claim  money  due  under  it;  Hurst  v.  Trow  Print- 
ing &  Bookbinding  Co.  2  Misc.  371,  22  N.  Y.  Supp.  371,  Pryor,  J.,  dissenting, 
who  holds  that  no  right  can  be  asserted  under  rescinded  contract,  but  each 
party  restored  to  original  position;  Seymour  v.  Warren,  47  Misc.  317,  93  N.  Y. 
Supp.  651,  holding  right  of  action  for  damages,  for  breach  of  contract  to  take 
charge  of  real  estate  and  collect  rents,  lost  where  property  was  taken  back  by 
owner  into  his  own  charge;  Alabama  Oil  &  Pipe  Line  Co.  v.  Sun  Co.  99  Tex, 
612,  92  S.  W.  253,  holding  that  cancelation  and  annulment  of  contract  does  not 
discharge  the  parties  from  liabilities  already  incurred  under  it  where  the 
intention  of  the  parties  was  to  the  contrary. 

Cited  in  note  (9  L.  R.  A.  607)  on  effect  of  rescission  of  contract. 
Consideration    for    rescission    or    new    agreement. 

Cited  in  Crutchfield  v.  Dailey,  98  Ga.  463,  25  S.  E.  526,  holding  that  executory 
contract  may  be  discharged  by  agreement;  Oregon  P.  R.  Co.  v.  Forrest,  128  N. 
Y.  91,  28  N.  E.  137,  holding  cancelation  of  agreement  and  mutual  release  of  par- 
ties, consideration  for  surrender  of  certain  bonds;  Lawrence  v.  Church,  35  N. 
Y.  S.  R.  957,  12  N.  Y.  Supp.  420,  holding  mutual  promises  good  consideration, 
where  one  indebted  to  estate  agreed  to  make  certain  payments  and  was  to  have 
benefit  of  certain  assets  and  action  against  him  was  to  be  discontinued;  Bry- 
ant v.  Thesing,  46  Neb.  247,  64  N.  W.  967,  holding  that  executory  written 
contract  to  purchase  goods  may  be  rescinded  by  subsequent  parol  agreement; 
Romaine  v.  Beacon  Lithographic  Co.  13  Misc.  123,  34  N.  Y.  Supp.  124,  holding 
that  party  may  waive  consideration  for  agreement  to  accept  less  sum,  and  if  he- 
carrier  out  modified  agreement  he  cannot  revoke  it;  Lipschutz  v.  Weatherly,  140 
N.  C.  369,  53  S.  E.  132,  holding  contract  rescinded  by  consent  to  new  contract 
differing  from  the  first,  and  the  release  of  the  old  was  sufficient  consideration. 

Cited  in  note   (39  Am.  St.  Rep.  745)    on  moral  obligation  as  consideration  to 
uphold  express  promise. 
Power  to   compromise. 

Cited  in  Ft.  Edward  v.  Fish,  156  N.  Y.  372,  50  N.  E.  973,  holding  water  com- 
missioners   without    power   to   compromise   with    vendee   of    water   bonds   under, 
void  sale  in  settlement  of  failure  to  deliver  bonds. 
Substituted  agreement  as  satisfaction. 

Cited  in  Bicknell  v.  Speir,  7  Misc.  112,  27  N.  Y.  Supp.  386,  holding  substi- 
tuted parol  agreement  to  accept  notes  in  payment  of  agreed  loan,  good  accord 
and  satisfaction  of  contract  to  make  the  loan;  Davis  v.  Willis,  57  Hun,  203, 
10  N.  Y.  Supp.  883,  to  point  new  agreement,  although  not  performed,  if  founded 
on  good  consideration,  satisfaction  if  accepted  as  such;  Mouquin  v.  Hergehan, 
138  App.  Div.  56,  122  N.  Y.  Supp.  858,  to  the  point  that  written  contract  may 
be  released  by  substitution  of  oral  agreement  subsequently  performed;  Brown- 
ing, K.  &  Co.  v.  Terwillinger,  144  App.  Div.  519,  129  N.  Y.  Supp.  431,  holding 
that  written  lease  is  not  discharged  by  substituted  oral  agreement  unless  the 
latter  is  fully  performed. 

Cited   in  notes    (11   L.R.A.   712)    defining  accord   and   satisfaction;    (11   Eng. 
Rul.  Cas.  228;  56  Am.  St.  Rep.  6G9,  670)   on  modification  of  written  contract  by 
subsequent  parol  agreement. 
Changre   of   contract   under   seal   by   parol    agreement. 

Followed  in  Applebee  v.  Duke,  37  N.  Y.  S.  R.  454,  13  N.  Y.  Supp.  929,  hold- 
ing parol  evidence  of  settlement  of  indebtedness  between  partners  available,  al- 
though partnership  agreement  under  seal. 


1117  L.  R.  A.  CASES  AS  AUTHORITIES.  [G  L.R.A.  506 

Cited  in  McKenzie  v.  Harrison,  120  N.  Y.  264,  8  L.  R.  A.  258,  17  Am.  St.  Rep. 
638,  24  N.  E.  458,  holding  that  contract  under  seal  may  be  modified  by  executed 
parol  agreement;  Mclntosh  v.  Miner,  37  App.  Div.  490,  55  N.  Y.  Supp.  1074; 
Miller  v.  Sullivan,  33  Misc.  752,  67  N.  Y.  Supp.  168,  holding  that  sealed  instru- 
ment may  be  abrogated  by  subsequent  parol  agreement;  Platte  Land  Co.  v.  Hub- 
bard,  12  Colo.  App.  470,  56  Pac.  64,  holding  that  sealed  instrument  may  be 
abrogated  by  parol  agreement,  as  to  time  and  condition  of  payment;  Thom- 
son v.  Poor,  147  N.  Y.  410,  42  N.  E.  13,  intimating  that  principle  that  sealed 
cont/act  can  only  be  changed  by  one  of  equal  solemn  ?'-'  may  no  longer  have 
any  practical  existence;  San  Remo  Hotel  Co.  v.  Brennan,  64  Hun,  611,  19  N. 
Y.  Supp.  276,  holding  that  after  breach  of  lease  under  seal,  parol  agreement 
modifying  its  terms,  based  on  sufficient  consideration,  and  executed  by  one 
party  and  partly  performed  by  other,  cannot  be  repudiated;  Lenane  v.  Mayer,  18 
Misc.  456,  41  N.  Y.  Supp.  960,  holding  that  lease  and  suretyship  thereon  might 
be  abrogated  by  parties  by  new  contract;  Bowman  v.  Wright,  65  Neb.  663,  91  N. 
W.  580,  sustaining  executed  parol  agreement  to  reduce  rent  under  written  lease; 
Miller  v.  Sullivan,  33  Misc.  752,  67  N.  Y.  Supp.  168,  holding  sealed  contract  an- 
nulled by  executed  parol  agreement  substituted;  Davis  v.  Bingham,  39  Misc.  300. 
79  N.  Y.  Supp.  469,  sustaining  executed  parol  modifications  of  written  agree- 
ment ;  American  Fine  Art  Co.  v.  Simon,  72  C.  C.  A.  45,  140  Fed.  536,  holding  that 
unexecuted  written  contract  may  be  discharged  by  subsequent  oral  agreement; 
American  Food  Co.  v.  Halstead,  165  Ind.  637,  76  N.  E.  251,  holding  sealed  con- 
tract abrogated  by  subsequent  executed  parol  agreement ;  Youngberg  v.  Lamberton, 
91  Minn.  102,  97  N.  W.  571,  holding  that  written  agreement  may  be  modified  by 
parol;  McKenzie  v.  Harrison,  120  N.  Y.  264,  8  L.R.A.  257,  17  Am.  St.  Rep. 
638,  24  X.  E.  458,  holding  that  executed  parol  agreement  modifying  written  con- 
tract under  which  the  parties  have  made  a  settlement  cannot  be  revoked. 

Cited  in  note   (6  Eng.  Rul.  Gas.  574)    on  discharge  of  contract  under  seal  by 
performance  of  subsequent  parol  agreement. 
Interest. 

Cited  in  Peck  v.  Granite  State  Provident  Asso.  21  Misc.  85,  46  N.  Y.  Supp. 
1042,  holding  payment  on  account  does  not  extinguish  interest;  Graves  v.  Saline 
County,  43  C.  C.  A.  416,  104  Fed.  63,  holding  acceptance  of  principal  under  pro 
test,  bar  to  recovery  of  interest  not  stipulated  for. 

Cited  in  note    (40  L.R.A.  (N.S.)    594)    on  acceptance  of  principal  as  affecting 
right  to  interest. 
E<|iiitnbl»-    defense   to   covenant. 

Cited  in  Jenkins  v.  Craig,  22  Ind.  App.  202,  53  N.  E.  427,  holding  that  equita- 
ble ground  for  restraining  enforcement  of  covenant  or  decreeing  its  discharge  con 
stitutes  equitable  defense  in  action  on  the  covenant;  New  York  v.  Holzderber,  44 
Misc.  511,  90  N.  Y.  Supp.  63,  holding  that  "equitable  defense"  means  one  of  which 
.a  court  of  equity  would  take  cognizance. 

'6  L.  R.  A.  506,  McKENDRY  v.  McKENDRY,  131  Pa.  24,  18  Atl.  1078. 
It  ii;ln    of  action   between   husband   anil   wife. 

Cited  in  Bennett  v.  Bennett,  37  W.  Va.  398,  38  Am.  St.  Rep.  47,  16  S.  E.  838. 
holding  wife's  judgment  against  husband  by  confession  on  valid  debt  due  her 
separate  estate,  lien  on  his  land,  and  valid  against  his  creditors;  Haun  v. 
Trainer,  20  Pa.  Co.  Ct.  626,  7  Pa.  Dist.  R.  235,  sustaining  right  of  wife's  indorsee 
to  sue  on  husband's  note;  Mathewson  v.  Mathewson,  79  Conn.  33,  5  L.R.A.  (N.S. ) 
617,  63  Atl.  285,  6  A.  &  E.  Ann.  Cas.  1027,  holding  that  under  statute  a  married 
woman  may  maintain  an  action  at  law  against  her  husband  to  recover  money 


6  L.R.A.  506]  L.  R.  A.  CASES  AS  AUTHORITIES.  1118 

loaned  to  him;  Heckman  v.  Heckman,  215  Pa.  205,  114  Am.  St.  Rep.  953,  64 
Atl.  425,  holding  that  wife  may  maintain  suit  in  equity  against  her  husband  for 
the  protection  of  her  separate  estate. 

Cited  in  footnotes  to  Lyon  v.  Lyon,  42  L.  R.  A.  195,  which  sustains  injunc- 
tion against  husband's  eating  and  sleeping  in  wife's  house  pending  suit  for  di- 
vorce; Bandfield  v.  Bandfield,  40  L.  R.  A.  757,  which  holds  tort  committed  by 
husband  upon  wife  while  they  are  living  together  not  actionable. 

Cited  in  notes  (18  L.R.A.  791)  on  what  title  or  interest  will  support  action  of 
ejectment;  (73  Am.  St.  Rep.  278)  on  suit  between  husband  and  wife. 

6  L.  R.  A.  509,  FAYETTEVILLE  v.  CARTER,  52  Ark.  301,   12  S.  W.  573. 
!.!<•«•  ii .«*••  or  tax  on  business. 

Cited  in  Brewster  v.  Pine  Bluff,  70  Ark.  30,  65  S.  W.  934,  sustaining  annual' 
license  tax  of  $12  and  $20  for  drays  and  wagons;  Wills  v.  Ft.  Smith,  70  Ark_ 
224,  66  S.  W.  922,  holding  ordinance  fixing  fee  for  weighing  coal  not  unreason- 
able; Hot  Springs  v.  Curry,  64  Ark.  155,  41  S.  W.  55,  holding  ordinance  regulat- 
ing drumming  or  soliciting  passengers  for  hotels  presumed  reasonable;  Arka- 
delphia  Lumber  Co.  v.  Arkadelphia,  56  Ark.  374,  19  S.  W.  1053,  holding  fee  of 
$25  for  ferry  license,  reasonable;  Ft.  Smith  v.  Hunt,  72  Ark.  563,  66  L.R.A.  241, 
105  Am.  St.  Rep.  51,  82  S.  W.  163,  holding  that  city  may  impose  license  fee 
upon  poles  of  electric  company  within  the  city;  Emerson  v.  McNeil,  84  Ark.  554, 
15  L.R.A.(N.S.)  717,  106  S.  W.  479,  holding  valid  ordinance  forbidding  solicit- 
ing customers  for  hotels  or  boarding  houses  upon  depot  platforms;  Helena  v. 
Miller,  88  Ark.  265,  114  S.  W.  237,  holding  license  fee  imposed  by  ordinance 
presumed  to  be  reasonable  unless  the  contrary  plainly  appear;  Trigg  v.  Dixon, 
96  Ark.  202,  131  S.  W.  695,  Ann.  Cas.  1912  B,  509,  holding  that  annual  fee  of 
fifty  dollars  for  butcher's  license  required  by  municipal  ordinance  is  reasonable; 
Quong  Wing  v.  Kirkendall,  39  Mont.  68,  101  Pac.  250,  holding  that  classification 
by  legislature,  for  purpose  of  taxing  a  business,  is  presumed  to  be  reasonable ; 
Stamps  v.  Burk,  83  Ark.  355,  104  S.  W.  153,  holding  ordinance  requiring  license 
fee  of  $12.50  per  three  months  for  selling  fresh  meats,  unreasonable  and  void. 

Cited  in  footnotes  to  State  ex  rel.  Beek  v.  Wagener,  46  L.  R.  A.  442,  which 
sustains  statute  regulating  business  of  commission  merchants  handling  agri- 
cultural products;  Littlefield  v.  State,  28  L.  R.  A.  588,  which  limits  power  to 
license  sales  of  milk  to  regulation,  and  not  raising  of  revenue. 

Cited  in  notes  (9  L.  R.  A.  787)  on  taxes  on  occupations  and  business;  (30  L. 
11.  A.  427,  432,  433)  on  limit  of  amount  of  license  fees;  (129  Am.  St.  Rep. 
259)  on  constitutional  limitations  on  power  to  impose  license  or  occupation 
taxes. 

Distinguished  in  Waters-Pierce  Oil  Co.  v.  Hot  Springs,  85  Ark.  512,  16  L.R.A. 
(X.S.)  1036,  109  S.  W.  293,  holding  license  fee  of  ten  to  fifty  dollars  upon  ve- 
hicles unreasonable;  Conway  v.  Waddell,  90  Ark.  130,  118  S.  W.  398,  holding 
license  fee  of  $25  per  day  upon  peddlers  unreasonable  and  invalid. 

0  L.  R.  A.  510,  EUREKA  SPRINGS  SCHOOL  DIST.  v.  CROMER,  52  Ark.  454,  12 
S.  W.  878. 

ii:iiiiii>    on    school    -warrant. 

Cited  in  School  Dist.  No.  7  v.  Reeve,  56  Ark.  70,  19  S.  W.  106,  holding  school 
district  liable  on  unpaid  school  warrant. 

•   imitation    of   actions. 

Cited  in  note  (24  Am.  St.  Rep.  496)  on  limitation  of  actions. 


1119  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  515 

6  L.  R.  A.  511,  GEORGE  v.  BRADDOCK,  45  N.  J.  Eq.  757,  14  Am.  St.  Rep. 

754,   18  Atl.  881. 
Charitable    uses    and    trnsts. 

Cited  in  Garrison  v.  Little,  75  111.  App.  416,  upholding  bequest  for  attain- 
ment of  woman  suffrage;  Jones  v.  Watford,  62  N.  J.  Eq.  343,  50  Atl.  180,  sus- 
taining bequest  in  trust  for  purchase  of  books  on  spiritualism,  to  be  acces- 
sible to  seekers  for  truth;  Hyde  v.  Hyde,  64  N.  J.  Eq.  9,  53  Atl.  593,  holding  be- 
quests for  educational  purposes  may  be  upheld  as  for  valid  charitable  uses; 
Clearspring  Twp.  v.  Blough,  173  Ind.  26,  88  N.  E.  511,  as  to  what  constitutes 
valid  charitable  trust;  Schools  for  Industrial  Education  v.  Hoboken,  70  N.  J. 
Eq.  634,  62  Atl.  1,  holding  gift  for  free  public  library  and  for  industrial  educa- 
tion department  to  be  for  a  "charitable  use;"  MacKenzie  v.  Presbytery  of  Jersey 
City,  67  N.  J.  Eq.  685,  3  L.R.A.  (X.S.)  243,  61  Atl.  1027,  sustaining  validity 
of  trust  for  public  worship  and  instruction  according  to  the  Presbyterian  faith ; 
Re  Kramph,  26  Lane.  L.  Rev.  159,  holding  void,  devise  for  school  to  teach  doctrines, 
of  Swedenborg. 

Cited  in  footnotes  to  Kelly  v.  Nichols,  19  L.  R.  A.  413,  as  to  what  consti- 
tutes charitable  use  or  trust;  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds 
gift  of  free  public  library  in  great  city  charitable;  People  ex  rel.  Ellert  v.  Cogs- 
well, 35  L.  R.  A.  269,  which  sustains  trust  for  educating  boys  and  girls  not 
confined  to  poor  ones;  Re  John,  36  L.  R.  A.  242,  which  sustains  bequest  for 
maintenance  of  free  public  schools;  New  England  Theosophical  Corp.  v.  Boston, 
42  L.  R.  A.  281,  which  denies  exemption  from  taxation  of  theosophical  corpora- 
tion. 

Cited  in  notes  (12  L.R.A.  415)  on  charitable  uses  and  trusts;  (49  Am.  St. 
Rep.  128)  on  application  of  rule  against  perpetuities  to  charitable  uses;  (63 
Am.  St.  Rep.  268,  269)  on  what  are  charitable  uses  or  trusts;  (64  Am.  St. 
Rep.  770)  on  certainty  and  unity  required  in  charitable  trusts;  (14  L.R.A. (N.S.) 
73,  100)  on  enforcement  of  general  bequest  for  charity  or  religion;  (5  Eng. 
Rul.  Cas.  577,  578)  on  invalidity  of  charitable  bequest  for  indebtedness. 

Distinguished  in  Brown  v.   Condit,  70  N.   J.   Eq.  453,   61  Atl.   1055,   holding 
that    charitable    bequest    lapsed    where    made    to    be    dispensed    by    a    specified 
person,  who  died  before  testator,  in  his  personal  charitable  work. 
"Robbery." 

Cited  in  Flaacke  v.  Stratford,  72  N.  J.  L.  490,  64  Atl.  146,  5  A.  &  E.  Ann.  Cas. 
854,  as  illustrating  the  use  of  the  word  "robbery." 

6  L.  R.  A.  515,  MILLER  v.  McMECHEN,  33  W.  Va.  197,  10  S.  E.  378. 
Publication    of    notice. 

Cited  in  Sandusky  v.  Faris,  49  W.  Va.  168,  38  S.  E.  563,  holding  notice  posted' 
in  fourth  week  though  not  twenty-eight  days  preceding  sale,  sufficient;  Benwood 
v.  Wheeling  R.  Co.  53  W.  Va.  471,  44  S.  E.  271,  holding  statute  requiring  notice 
to  be  published  for  30  days  complied  with  by  publication  in  weekly  newspaper. 
Delivery  of  grift. 

Cited  in  Goodrich  v.  Rutland  Sav.  Bank,  81  Vt.  150,  17  L.R.A.  (X.S.)  183,  69^ 
Atl.  651,  holding  delivery  of  deposit  book  sufficient  to  pass  title  to  savings  ac- 
count in  bank. 

Cited  in  footnotes  to  Williamson  v.  Johnson,  9  L.  R.  A.  277,  which  holds  gift 
to  enable  fiancee  to  pay  wedding  expenses,  conditional  on  marriage ;  Gammon 
Theological  Seminary  v.  Robbins,  12  L.  R.  A.  506,  which  holds  instrument  de- 
claring that  holder  gives  note  which  he  retains,  insufficient  as  gift;  Porter  v_ 


6  L.R.A.  515]  L.  R.  A.  CASES  AS  AUTHORITIES.  1120 

Woodhouse,  13  L.  R.  A.  64,  which  holds  warranty  deeds  not  delivered  by  donor 
giving  to  third  person. 

Cited  in  note  (12  Eng.  Rul.  Cas.  441)  on  necessity  of  delivering  gift  intervivos. 

«  L.  R.  A.  520,  KOHL  v.  LILIENTHAL,  81  Cal.  378,  22  Pac.  689,  20  Pac.  401. 
Distribution   or   transfer   of   corporate  assets. 

Cited  in  Schaake  v.  Eagle  Automatic  Can  Co.  135  Cal.  484,  63  Pac.  1025,  hold- 
ing transfer  of  property  of  one  corporation  to  another  for  stock  of  latter,  at- 
tempted distribution  of  assets;  Hunt  v.  Davis,  135  Cal.  34,  66  Pac.  957,  sustain- 
ing right  of  one  party  to  agreement  to  form  corporation,  to  prevent  other 
party  from  disposing  of  assets;  Jameson  v.  Hartford  F.  Ins.  Co.  14  App.  Div. 
397,  44  N.  Y.  Supp.  15  (dissenting  opinion),  majority  upholding  reinsurance 
although  effect  was  to  suspend  business  of  reinsuring  company;  Vercoutere  v. 
Golden  State  Land  Co.  116  Cal.  415,  48  Pac.  375,  holding  invalid,  a  by-law  per- 
mitting stockholder  to  withdraw  from  corporation  and  have  paid  to  him  his 
share  of  the  corporate  capital ;  Tapscott  v.  Mexican  Colorado  River  Land  Co. 
153  Cal.  668,  96  Pac.  271,  holding  that  stockholder  cannot  maintain  suit  for 
his  proportionate  share  of  the  capital  of  the  corporation;  O'Dea  v.  Hollywood 
Cemetery  Asso.  154  Cal.  68,  97  Pac.  1,  on  directors  of  corporation  having  no 
authority  to  distribute  the  corporate  capital  among  the  stockholders;  Night- 
ingale v.  Milwaukee  Furniture  Co.  71  Fed.  240,  on  method  of  dissolving  corpo- 
ration prescribed  by  statute,  being  exclusive. 

Cited  in  notes  (2  L.R.A.  (N.S.)  495)  on  power  of  majority  stockholders  to 
dissolve  corporation;  (57  Am.  St.  Rep.  71)  on  what  is  a  withdrawal  of  corpo- 
rate assets;  (89  Am.  St.  Rep.  621)  on  effect  of  consolidation  of  corporations; 
{103  Am.  St.  Rep.  571)  on  distribution  of  proceeds  of  sale  of  corporate  assets. 

Distinguished  in  Burne  v.  Lee,  156  Cal.  228,  104  Pac.  438,  holding  that  own- 
ers of  corporate  stock  may  enter  into  an  agreement  for  the  sale  of  the  entire 
property  of  the  corporation. 
Interest    of    stockholders. 

Cited  in  Richter  v.  Henningsan,  110  Cal.  534,  42  Pac.  1077,  holdig  stockhold- 
ers of  corporation  operating  distillery  jointly  and  severally  liable  for  internal 
revenue  taxes:  Turner  v.  Fidelity  Loan  Concern,  2  Cal.  App.  131,  83  Pac.  62, 
on  authority  of  directors  of  corporation,  who  are  also  the  sole  stockholders,  to 
issue  stock. 

6  L.  R.  A.  524,  STATE  INS.  CO.  v.  SCHRECK,  27  Neb.  527,  20  Am.  St.  Rep. 

696,  43  N.  W.  340. 
I. <>s*   on   divisible  policy. 

Cited  in  German  Ins.  Co.  v.  York,  48  Kan.  493,  30  Am.  St.  Rep.  313,  29  Pac. 
586,  holding  chattel  mortgage  on  personal  property  not  invalidate  part  of  pol- 
icy covering  dwelling;  German  Ins.  Co.  v.  Fairbank,  32  Xeb.  753,  29  Am.  St. 
Rep.  459,  49  N.  W.  711,  holding  execution  of  mortgage  on  land  does  not  affect 
part  of  policy  covering  cow;  Johansen  v.  Home  F.  Ins.  Co.  ~i4  Xeb.  r>.~>0.  74  X. 
W.  866,  holding  policy  classifying  property  insured  and  limiting  amount  of  in- 
surance on  each  class,  divisible;  German  Ins.  Co.  v.  Fairbank,  32  Xeb.  754,  29 
Am.  St.  Rep.  459,  49  X.  W.  711,  holding  execution  of  mortgage  contrary  to  pol- 
icy also  covering  personal  property,  no  bar  to  recovery  for  death  of  cow;  Phenix 
Ins.  Co.  v.  Grimes,  33  Neb.  348,  50  X*.  \V.  168,  holding  that  conveyance  of  farm 
after  insurance,  does  not  work  forfeiture  of  separable  policy  on  colt ;  Omaha  F. 
Ins.  Co.  v.  Dierks,  43  Neb.  480.  61  X.  W.  740.  sustaining  right  to  recovery  for 
personal  property  encumbered  subsequent  to  policy,  but  released  prior  to  loss; 
Home  F.  Ins.  Co.  v.  Bernstein,  55  Xeb.  264,  75  N.  W.  839,  holding  that  chattel 


1121  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  524 

mortgage  on  articles  in  one  class  of  property  in  divisible  contract,  affords  de- 
fense to  action  on  policy;  Georgia  Home  Ins.  Co.  v.  McKinley,  14  Tex.  Civ.  11, 
37  S.  W.  606,  holding  policy  on  building  and  contents,  divisible;  Trabue  v.  Dwell- 
ing House  Ins.  Co.  121  Mo.  86,  23  L.  R.  A.  722,  42  Am.  St.  Rep.  523,  25  S.  W. 
848,  holding  word  '"entire"  in  divisible  policy  does  not  forfeit  policy  on  class 
of  property  on  which  no  breach  of  condition;  Southern  F.  Ins.  Co.  v.  Knight,  111 
Ga.  634,  52  L.  R.  A.  74,  78  Am.  St.  Rep.  216,  36  S.  E.  821,  holding  gross  pre- 
mium policy  on  classified  risks  voided  by  breach  of  single  condition  relating  to 
but  one  class;  McQueeny  v.  Phoenix  Ins.  Co.  52  Ark.  261,  5  L.  R.  A.  746,  20  Am. 
St.  Rep.  179,  12  S.  W.  498,  holding  policy  on  two  houses,  one  of  which  became 
vacant  contrary  to  its  provisions,  voided  policy;  Miller  v.  Delaware  Ins.  Co. 
14  Okla.  86,  65  L.R.A.  176,  75  Pac.  1121,  2  A.  &  E.  Ann.  Cas.  17,  holding  that 
where  policy  covers  different  classes  of  property  in  separate  items,  recovery  may 
be  had  on  one  or  more  of  them  though  others  may  be  void  for  breach  of  some 
condition;  Johnston  v.  Phelps  County  Farmers'  Mut.  Ins.  Co.  73  Xeb.  53,  102 
X.  W.  72,  holding  that  blanket  policy  continues  on  the  class  of  property  in- 
sured though  the  specific  articles  are  replaced  by  others  of  the  same  kind. 

Cited  in  footnote  to  Coleman  v.  New  Orleans  Ins.  Co.  16  L.  R.  A.  174,  which 
holds  policy  for  separate  amounts  on  storehouse  and  goods  severably. 

Cited  in  notes  (8  L.  R.  A.  834)  on  entire  and  severable  contracts  of  fire  in- 
surance; (19  L.  R.  A.  216)  on  severability  of  insurance  in  same  policy. 

Distinguished  Goorberg  v.  Western  Assur.  Co.  150  Cal.  514,  10  L.R.A.  (X.S. ) 
878.  119  Am.  St.  Rep.  246,  89  Pac.  130,  11  A.  &  E.  Ann.  Cas.  801,  holding  that 
question  whether  policy  is  divisible  depends  upon  the  nature  of  the  risk  and  the 
intention  of  the  parties  . 

Forfeiture    for   breach    of   condition. 

Cited  in  Connecticut  F.  Ins.  Co.  v.  Jeary,  60  Xeb.  346,  51  L.  R.  A.  708,  83  N 
\V.  78.  holding  that  forfeiture  will  not  be  declared  for  breach  of  "iron  safe 
clause"  unless  all  conditions  broken;  Liverpool  &  L.  &  G.  Ins.  Co.  v.  Tillis,  110 
Ala.  210,  17  So.  672,  refusing  under  pleadings  to  consider  breach  of  "iron  safe 
clause;"  Ohio  Farmers'  Ins.  Co.  v.  Burget,  65  Ohio  St.  123,  55  L.  R.  A.  827,  87 
Am.  St.  Rep.  596,  61  N.  E.  712,  holding  consent  of  company  to  removal  of 
property  to  place  of  loss,  election  to  accept  hazards;  German  Mut.  F.  Ins.  Co. 
v.  Fox,  4  Xeb.  (Unof.)  836,  63  LJR.A.  336,  96  N.  W.  652,  permitting  recovery  of 
insurance  on  property  conveyed  in  violation  of  policy,  but  reconveyed  before  loss; 
Home  F.  Ins.  Co.  v.  Johansen.  59  Xeb.  352.  80  X.  W.  1047,  holding  burden  of  show- 
ing discharge  of  lien  upon  insured;  Benham  v.  Farmers'  Mut.  F.  Ins.  Co.  165 
Mich  419,  —  L.R.A.  (X.S.)  — ,  131  X.  W.  87,  Ann.  Cas.  1912  C,  983,  to  the 
point  that  incumbrance  placed  on  part  of  property  insured  under  policy  issued 
in  consideration  of  gross  premium  in  violation  of  terms  of  policy  does  not  render 
policy  void  as  to  that  class  of  property  not  covered  by  mortgage;  German  Mut. 
F.  Ins.  Co.  v.  Fox,  4  Xeb.  (Unof.)  836,  63  L.R.A.  336,  96  X.  W.  652,  holding  that 
conveyance  of  insured  property  contrary  to  restriction  in  policy,  does  not  avoid 
it  where  the  property  is  reconveyed  prior  to  loss;  Port  Blakely  Mill  Co.  v. 
Springfield  F.  &  M.  Ins.  Co.  51)  Wash.  526,  28  L.R.A.(N.S.)  605,  140  Am.  St. 
Rep.  863,  110  Pac.  36,  holding  that  policy  of  insurance  providing  for  sprinkler 
system  cannot  be  avoided  because  of  temporary  suspension  for  repairs  where  it 
was  in  working  order  at  time  of  fire. 

Cited  in  footnote  to  Fitzgibbons  v.  Merchants'  &  B.  Mut.  F.  Ins.  Co.  70  L.R.A. 
243,  which  holds  that  institution  of  foreclosure  proceedings  against  real  estate 
only  will  not  work  forfeiture  of  policy  covering  real  and  personal  property  and 
L.R.A.  Au.  Vol.  I.— 71. 


6  L.R.A.  524]  L.  R.  A.  CASES  AS  AUTHORITIES.  1122 

providing   that   it   shall   be   forfeited   by    institution   of   foreclosure    proceeding* 
against  the  "property  insured." 

Cited  in  notes  (11  L.R.A.  293)  on  conditions  in  policy  transfer  and  alienation 
of  interest;  (10  L.R.A. (N.S.)  739)  on  effect  of  temporary  condition  ceasing  be- 
fore loss,  under  general  provision  against  increase  of  risk,  or  specific  provision 
against  certain  conditions;  (80  Am.  St.  Rep.  305)  on  revival  of  forfeited  in- 
surance by  discontinuance  of  cause  of  forfeiture  before  loss. 
Effect  of  variance In  policy. 

Cited  in  Phenix  Ins.  Co.  v.  Gebhart,  32  Neb.  146,  49  N.  W.  333,  holding  va- 
riance in  description  of  land  on  which  insured  property  situated,  immaterial; 
Omaha  F.  Ins.  Co.  v.  Dufek,  44  Neb.  243,  62  N.  W.  465,  holding  misdescription  of 
township  in  which  personal  property  stored,  not  fatal  variance;  Kansas  Farmers' 
F.  Ins.  Co.  v.  Saindon,  52  Kan.  493,  39  Am.  St.  Rep.  356,  35  Pac.  15,  holding 
misdescription  of  land  on  which  insured  dwelling  stands,  not  affect  risk;  Ger- 
man Ins.  Co.  v.  Miller,  39  111.  App.  637,  holding  reformation  of  misdescription 
of  land  in  policy  not  necessary  when  agent  knew  facts  at  time  of  issuance;  Sauer- 
bier  v.  Union  Cent.  L.  Ins.  Co.  39  111.  App.  629,  holding  that  beneficiary,  if 
identified  need  not  be  named  in  policy;  ^Etna  Ins.  Co.  v.  Brannon,  99  Tex.  396,  2 
L.R.A. (N.S.)  551,  89  S.  W.  1057,  13  A.  &  E.  Ann.  Cas.  1020,  on  right  to  recover 
on  policy  containing  misdescription  as  to  location  of  property  insured. 
In  other  cases. 

Cited  in  Rainsford  v.  Massengale,  5  Wyo.  9,  35  Pac.  774,  holding  name  of  firm 
pleaded  as  Adams,  Choate,  &  Co.,  and  proof  of  representations  by  one  acting  for 
Rainsford,  Adams,  Choate,  &  Co.,  immaterial. 

1  'i>rni    of  "|i«il  i«->  . 

Cited  in  Sproul  v.  Western  Assur.  Co.  33  Or.  106,  54  Pac.  180,  holding  par- 
ties   in   negotiation    for    policy,    presumed    to   have   in    contemplation    ordinary 
form  of  policy  for  kind  of  property  insured. 
Sufficiency   of   notice   of   loss. 

Cited  in  Home  F.  Ins.  Co.  v.  Hammang,  44  Neb.  574,  62  N.  W.  883,  holding 
insurance  company  waived  sufficiency  of  proofs  of  loss  by  sending  adjuster  who 
took  steps  to  ascertain  loss;  Phenix  Ins.  Co.  v.  Rad  Bila  Hora  Lodge,  41  Neb. 
28,  59  N.  W.  752,  holding  notice  given  by  authority  of  insured,  in  response  to 
which  adjuster  appeared,  sufficient;  Omaha  F.  Ins.  Co.  v.  Dierks,  43  Neb.  482,  61 
N.  W.  740,  holding  that  insured  need  not  notify  company  of  loss  of  which  it  had 
knowledge  through  its  agents. 

6  L.  R.  A.  529,  REESE  v.  PENNSYLVANIA  R.  CO.  131  Pa.  422,  17  Am.  St.  Rep. 

818,  19  Atl.  72. 
Reasonable  regulations  as  to  cash  fares. 

Cited  in  Zagelmeyer  v.  Cincinnati,  S.  &  M.  R.  Co.  102  Mich.  216,  47  Am.  St. 
Rep.  514,  60  N.  W.  436,  holding  penalty  of  additional  charge  over  legal  rate, 
when  fare  collected  on  train,  unreasonable;  Kennedy  v.  Birmingham  R.  Light 
&  P.  Co.  138  Ala.  230,  35  So.  108,  holding  regulation  requiring  passenger  with- 
out ticket  to  pay  excess  fare  unreasonable  as  to  passengers  entering  car  1,000  feet 
from  ticket-office;  Robb  v.  Pittsburg,  C.  C.  &  St.  L.  R.  Co.  14  Pa.  Super.  Ct. 
290,  sustaining  regulation  requiring  holder  of  mileage  book  to  exchange  coupons 
for  ticket;  Weber  v.  Southern  R.  Co.  65  S.  C.  374,  43  S.  E.  888  (dissenting 
opinion),  majority  holding  regulation  requiring  passenger  without  ticket  to  pay 
excess  fare,  for  which  rebate  check  is  issued,  unlawful;  Knoxville  Traction  Co.  v. 
Wilkerson,  117  Tenn.  485,  9  L.R.A.  (N.S.)  580,  99  S.  W.  992,  10  A.  &  E.  Ann.  Cas. 
641,  holding  rule  requiring  passenger  on  street  car  to  tender  bill  or  coin  in 


1123  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  531 

denomination  of  five  dollars  or  less  in  payment  of  fare  reasonable;  Martin  v. 
Rhode  Island  Co.  32  R.  I.  166,  32  L.R.A.  (N.S.)  697,  78  Atl.  548,  Ann  Cas.  1912  C, 
1283,  holding  that  common  carrier  may  establish  reasonable  rules  regulating 
time  and  place  and  mode  for  payment  of  its  charges. 

Cited  in  footnote  to  United  Railways  &  Electric  Co.  v.  Hardesty,  57  L.  R. 
A.  276,  which  denies  carrier's  duty  to  accept  coupon  detached  from  commutation 
book. 

Cited  in  notes  (20  L.R.A.  483,  484)  on  validity  of  extra  charge  for  passenger 
fare  when  paid  on  train;  (29  L.R.A. (N.S.)  299)  on  right  of  carrier  to  refuse  to 
accept  nonticket  holders  as  passengers. 

Disapproved  in  Fulmer  v.  Southern  R.  Co.  67  S.  C.  269,  45  S.  E.  196,  holding 
that  railroad  companies  have  no  right  to  collect  25  cents  over  regular  rate  from 
passengers  without  tickets  even  though  rebate  checks  be  given  for  the  excess. 

6  L.  R.  A.  531,  HOME  FOR  AGED  PROTESTANT  WOMEN  v.  WILKINSBURG, 

131  Pa.  109,  18  Atl.  937. 
Assessment  for  local  improvements  or  (or  side-walks. 

Cited  in  Mt.  Pleasant  v.  Baltimore  &  O.  R.  Co.  138  Pa.  372,  11  L.  R.  A.  521, 
21  Pittsb.  L.  J.  N.  S.  226,  27  W.  N.  C.  179,  20  Atl.  1052,  holding  railroad  passen- 
ger or  freight  depot  or  ground  used  for  lumber  yard,  subject  to  municipal  lien  for 
paving  foot  walk;  Philadelphia  v.  Pennsylvania  Hospital,  143  Pa.  374,  28  W.  N. 
C.  434,  22  Atl.  744,  holding  hospital  liable  to  assessment  for  curbing  street; 
Philadelphia  v.  Pennsylvania  Hospital,  143  Pa.  372,  22  Atl.  744,  to  point  out  dis- 
tinction between  right  of  local  taxation  and  authority  vested  in  municipal  cor- 
porations to  require  property  owners  to  curb,  pave,  and  keep  sidewalks  in  repair 
in  front  of  their  premises;  Philadelphia  v.  Girard,  16  Montg.  Co.  L.  Rep.  136,  23 
Pa.  Co.  Ct.  672,  9  Pa.  Dist.  R.  273,  holding  real  estate  held  in  trust  for  charities 
liable  for  paving  assessment;  Harrisburg  City  v.  St.  Paul's  Episcopal  Church,  2 
Lack.  Legal  News,  330,  18  Pa.  Co.  Ct.  113,  5  Pa.  Dist.  R.  351,  holding  church 
property  liable  for  municipal  sewer  assessment;  Philadelphia  v.  Weaver,  14  Pa. 
Super.  Ct.  298,  holding  sidewalk  assessments  not  within  rule  limiting  special  as- 
sessment to  special  benefit;  Greensburg  v.  Laird,  8  Pa.  Co.  Ct.  610,  holding  paving 
assessment  not  within  charter  provision  prohibiting  taxation  in  excess  of  cer- 
tain rate  unless  voted  by  electors;  Pittsburg  v.  Biggert,  23  Pa.  Super.  Ct.  544; 
and  Pittsburg  use  of  Flanagan  v.  Daly,  5  Pa.  Super.  Ct.  532,  28  Pittsb.  L.  J. 
N.  S.  116,  41  W.  N.  C.  238,  holding  city  may  maintain  assumpsit  for  cost  against 
lot  owner  failing  to  build  sidewalk  required  by  ordinance;  Mt.  Joy  v.  Harris- 
burg,  P.  Mt.  J.  &  L.  R.  Co.  8  Northampton  Co.  Rep.  249,  19  Lane.  L.  Rev.  218, 
holding  assumpsit  maintainable  against  railroad  for  cost  of  pavement  in  front 
of  its  lands;  Chester  v.  First  Nat.  Bank,  7  Del.  Co.  Rep.  360,  9  Pa.  Super.  Ct. 
520,  44  W.  N.  C.  181,  holding  property  owner  liable  to  municipality  for  dam- 
ages recovered  for  defect  in  sidewalk;  Ladies'  United  Aid  Soc.  v.  Philadelphia, 
14  Pa.  Co.  Ct.  216,  3  Pa.  Dist.  R.  141,  34  W.  N.  C.  260,  holding  land  cut  off  by 
street  from  main  lot  of  charitable  institution  not  taxable  for  general  purposes; 
Meaner  v.  Goldsmith,  216  Pa.  493,  10  L.R.A.(X.S.)  348,  65  Atl.  1084,  holding 
that  cost  of  laying  sidewalk  along  property  is  imposed  as  a  personal  obligation 
upon  the  owner  and  may  be  enforced  against  him;  Mt.  Joy  v.  Harrisbnrg,  P. 
Mt.  J.  &  L.  R.  Co.  11  Pa.  Dist.  R.  766,  holding  that  railroad  company  may  be 
compelled  to  lay  sidewalk  along  its  lands  lying  between  its  tracks  and  a  street; 
Philadelphia  v.  Steward,  31  Pa.  Super.  Ct.  74,  on  cost  of  repairing  defective  walk 
as  distinguished  from  assessment  for  local  improvement. 

Cited  in  notes   (35  L.R.A.  36)   that  exemption  from  taxation  does  not  exempt 


6  L.R.A.  531]  L.  R.  A.  CASES  AS  AUTHORITIES.  1124 

from  assessment  for  local  improvement;    (3  L.R.A. (X.S. )   837)   on  special  assess- 
ment as  tax. 

6  L.  R.  A.  533,  FARLEY  v.  GEISHEKER,  78  Iowa,  453,  43  N.  W.  279. 
Statutes  applicable  to  pending  actions. 

Cited  in  State  v.  Borland,  106  Iowa,  42,  75  X.  W.  654,  holding  act  allowing  cost 
of   printing   to   successful   defendant   on   appeal   in   criminal   case,   applicable   to 
pending   appeals. 
Appellate  court  jurisdiction. 

Cited  in  Geyer  v.  Douglass,  85  Iowa,  96,  52  N.  W.  Ill,  jurisdiction  of  appellate 
court  presumed  unless  otherwise  affirmatively  appearing;  Farmers'  Loan  &  T. 
Co.  v.  Newton,  97  Iowa,  505,  66  N.  W.  784,  allowing  appeal  from  cancelation 
of  assessment  under  ruling  giving  jurisdiction  over  all  judgments  and  decisions 
of  courts  of  record;  Comstock  v.  Eagle  Grove,  133  Iowa,  592,  111  N.  W.  51. 
on  application  of  rule  forbidding  appeal,  where  amount  in  controversy  is  less 
than  $100  to  action  for  cancelation  of  taxes  and  injunction. 

Cited  in  footnote  to  Cassard  v.  Tracy,  49  L.  R.  A.  272,  which  holds  pending  ap- 
peals within  provision  in  new  constitution  giving  supreme  court  power  to  de- 
termine questions  of  fact  as  well  as  of  law. 

•6  L.  R.  A.  534,  HOLMAN  v.  SCHOOL  DIST.  NO.  5,  77  Mich.  605,  43  N.  W.  996. 
Mandamus. 

Cited   in   Pfeiffer   v.   Board   of   Education,    118   Mich.   581,   42   L.   R.   A.   543, 
77  N.  W.  250,  Moore,  J.,  dissenting,  who  holds  mandamus  appropriate  remedy 
to   redress   invasion   of   civil    rights   by   reading   extracts   from   Bible   in    public- 
schools. 
Regulation    of    conduct    of    pupils. 

Cited  in  Board  of  Education  v.  Purse,  101  Ga.  443,  41  L.  R.  A.  608,  65  Am. 
St.  Rep.  327,  28  S.  E.  896,  holding  that  child  may  be  suspended  for  misconduct 
of  parent  in  entering  school  room  and  using  offensive  language  to  teacher;  State 
ex  rel.  Dresser  v.  School  Dist.  No.  1,  135  Wis.  624,  16  L.R.A.  (N.S.)  732,  128 
Am.  St.  Rep.  1050,  116  N.  W.  232,  on  school  board  as  having  no  power  to  enforce 
rule  requiring  pupils,  under  penalty  of  suspension,  to  pay  fine  or  to  pay  for 
damages  to  school  property. 

Cited  in  notes  (41  L.R.A.  603)  on  suspension  for  failure  to  pay  for  injury 
to  school  property;  (65  Am.  St.  Rep.  335)  on  causes  for  which  children  may 
be  excluded  from  public  schools. 

6  L.  R.  A.  536,  WINTER  v.  KANSAS  CITY  CABLE  R.  CO.  99  Mo.  509,  17  Am. 

St.  Rep.  591,   12  S.  W.  652. 
Duty    of     unit  111-111:1  ii. 

Cited  in  La  Pontney  v.  Shedden  Cartage  Co.  116  Mich.  515,  77  N.  W.  712, 
holding  that  motorman  should  have  car  under  such  control,  as  to  avoid  collision 
with  vehicles  discernible  ahead;  San  Antonio  Street  R.  Co.  v.  Mechler,  87  Tex. 
633,  30  S.  W.  899,  holding  persons  operating  street  cars  must  use  ordinary  care 
to  see  that  track  is  clear  and  to  avoid  collision;  Southern  Electric  R.  Co.  v. 
Hageman,  57  C.  C.  A.  356,  121  Fed.  270,  holding  that  motorman  must  use  same 
care  to  avoid  collisions  as  others  using  street;  Degel  v.  St.  Louis  Transit  Co. 
101  Mo.  App.  60,  74  S.  W.  156,  holding  that  street  railroad  must  exercise  rea- 
sonable care  to  avoid  colliding  with  vehicles;  City  R.  Co.  v.  Thompson,  20  Tex. 
Civ.  App.  18,  47  S.  W.  1038,  holding  that  it  is  duty  of  motorman  to  look 
ahead  on  track  and  on  each  side;  Burnstein  v.  Cass  Ave.  &  Fair  Grounds  R.  Co. 


3125  L.  R.  A.  CASES  AS  AUTHORITIES.  [G  L.R.A.  536 

56  Mo.  App.  53,  approving  instruction  that  it  is  duty  of  driver  to  stop  car  on 
first  appearance  of  danger  and  in  time  to  prevent  injury;  Schmidt  v.  St.  Louis 
R.  Co.  163  Mo.  654.  63  S.  W.  834,  holding  that  it  is  duty  of  gripman  to  keep 
vigilant  watch;  West  Chicago  Street  R.  Co.  v.  Schwartz,  93  111.  App.  400  (dis- 
senting opinion),  majority  holding  that  motorman  may  assume  one  approaching 
track  will  wait  for  car  to  pass;  Ross  v.  Metropolitan  Street  R.  Co.  113  Mo.  App. 
606,  88  S.  W.  144,  holding  motorman  not  required  to  presume  that  approaching 
pedestrian  will  not  stop  before  crossing  to  avoid  approaching  car;  Heinzle  v. 
Metropolitan  Street  R.  Co.  182  Mo.  557,  81  S.  W.  848,  holding  that  what  is  ordi- 
nary care  required  of  street  railway  company  in  operating  cars  depends  upon  the 
circumstances  of  the  case. 

Cited  in  notes  (7  L.  R.  A.  819)  on  duty  of  gripman  to  see  that  track  is  clear; 
(25  L.R.A.  663)  on  duty  of  street  railroad  employee  to  be  watchful;  (25  Am.  St. 
Rep.  481)  on  duties  and  obligations  of  street  railway  companies  to  exercise  care 
to  avoid  accidents;  (49  Am.  St.  Rep.  408,  423,  431)  on  duty  of  motorman  to 
children. 
Imputed  n.-ii  I  iii.-iic.-. 

Cited  in  Chicago  G.  W.  R.  Co.  v.  Kowalski,  34  C.  C.  A.  4,  92  Fed.  312;  St. 
Louis  I.  M.  &  S.  R.  Co.  v.  Rexroad,  59  Ark.  186,  26  S.  W.  1037;  Jeffersonville 
v.  McHenry,  22  Ind.  App.  15,  53  N.  E.  183;  Brill  v.  Eddy,  115  Mo.  606,  22  S.  W. 
488;  Profit  v.  Chicago  &  G.  W.  R.  Co.  91  Mo.  App.  376;  Bottoms  v.  Seaboard 
&  R.  R.  Co.  114  N.  C.  713,  25  L.  R.  A.  793,  41  Am.  St.  Rep.  799,  19  S.  E. 
730,  —  holding  negligence  of  parent  not  imputable  to  child  in  action  by  or  on 
behalf  of  latter:  Warren  v.  Manchester  Street  R.  Co.  70  N.  H.  361,  47  Atl.  735, 
holding  negligence  of  parent  not  imputable  to  child  in  action  by  administrator; 
Atlanta  &  C.  Air-Line  R.  Co.  v.  Gravitt,  93  Ga.  379,  26  L.  R.  A.  557,  44  Am. 
St.  Rep.  145,  20  S.  E.  550,  holding  that  mother  may  recover  for  death  of  child 
due  to  negligence  of  custodian  not  her  representative  or  agent;  Berry  v.  Lake 
Erie  &  W.  R.  Co.  70  Fed.  683,  holding  negligence  of  parent  not  imputed  to  child 
incapable  of  exercising  care  for  its  own  safety;  Czezewzka  v.  Benton-Bellefon- 
taine  R.  Co.  121  Mo.  214,  25  S.  W.  911,  holding  that  negligence  of  parent  will 
not  prevent  recovery  if  driver  might  have  avoided  inflicting  injury  by  exercise 
or  ordinary  care;  Xeff  v.  Cameron,  213  Mo.  362,  18  L.R.A.  (X.S.)  325,  127  Am.  St. 
Rep.  606.  Ill  X.  W.  1130.  holding  parents  negligence  not  imputed  to  child. 

Cited  in  notes    (8  L.  R.  A.  495;   6  L.  R.  A.  546)    that  negligence  of  parent 
not  imputable  to  child:   (21  L.  R.  A.  77,  81)  contributory  negligence  of  parent  as 
bar  to  action  by  child;    (49  Am.  St.  Rep.  408)   on  same  point;   (110  Am.  St.  Rep. 
281,  284)    on  imputed  negligence. 
Pedestrian's    right   to   use   street. 

Cited  in  Cambeis  v.  Third  Ave.  R.  Co.  1  Misc.  160,  20  N.  Y.  Supp.  633,  hold- 
ing that  pedestrians  have  equal  use  of  highway  with  street  cars  which  only  have 
preference  in  the  use  of  track;  Henry  v.  Grand  Ave.  R.  Co.  113  Mo.  536,  21  S. 
\Y.  214,  holding  that  pedestrians  may  cross  street  at  any  point  if  they  exercise 
due  care  and  caution:  Frank  v.  St.  Louis  Transit  Co.  99  Mo.  App.  334,  73  S.  W. 
239.  sustaining  instructions  to  effect  that  person  crossing  street  car  track  must 
use  care  proportioned  to  danger  of  surroundings;  Goff  v.  St.  Louis  Transit  Co. 
109  Mo.  706,  9  L.R.A.  (X.S.)  247,  98  S.  VV .  49,  holding  that  pedestrian  exercising 
due  care  and  caution,  has  the  right  to  walk  upon  any  part  of  the  street. 
•  on  t  ri  Im  tory  negrligrence  of  child. 

Cited  in  Fry  v.  St.  Louis  Transit  Co.  Ill  Mo.  App.  334.  85  S.  W.  960.  holding 
that  where  child  nine  years  old  was  injured  while  attempting  to  cross  in  front 
of  approaching  car.  question  of  contributory  negligence  was  for  jury. 

Cited  in  footnotes  to  Worthington  v.  Mencer,  17  L.  R.  A.  407,  which  holds  con- 


6  L.R.A.  536]  L.  R.  A.  CASES  AS  AUTHORITIES.  1126 

tributory  negligence  not  chargeable  to  one  unable  to  apprehend  danger;  Graney 
v.  St.  Louis,  I.  M.  &  S.  R.  Co.  38  L.  R.  A.  633,  which  denies  negligence  per  se 
of  twelve  year  old  boy  in  standing  so  near  passing  train  as  to  be  drawn  under 
by  current  of  air;  Gleason  v.  Smith,  55  L.  R.  A.  622,  which  denies  liability  for 
injury  by  collision  with  team  to  twelve  year  old  boy  using  street  as  playground. 

Cited  in  notes    (8  L.  R.  A.  844;   17  L.  R.  A.  78)    infant  not  chargeable  with 
contributory  negligence;    (10  L.  R.  A.  655;   12  L.  R.  A.  217)   contributory  negli- 
gence of  child;    (26  Am.  St.  Rep.  866)   on  contributory  negligence  of  infants. 
Objection   first  made  on  appeal. 

Cited  in  Pope  v.  Kansas  City  Cable  R.  Co.  99  Mo.  405,  12  S.  W.  891,  holding 
that  every  reasonable  inference  will  be  made  in  favor  of  sufficiency  of  evidence 
first  objected  to  on  appeal. 

6  L.  R.  A.  541,  PEARCE  v.  DENVER,  13  Colo.  383,  22  Pac.  774. 
Boundary    on    stream. 

Cited  in  Hanlon  v.  Hobson,  24  Colo.  288,  42  L.  R.  A.  512,  51  Pac.  433,  holding 
that  grant  bounded  by  non-navigable  stream  extends  to  thread  of  stream. 

Cited  in  note    (42  L.  R.  A.  508)    on  boundary  on  river  where  rights  in  river 
are  in  third  person. 
Separating1    riparian    rights    from    upland. 

Cited  in  note  (40  L.  R.  A.  394)  on  method  of  separating  riparian  rights  from 
upland. 
Computation    of   time. 

Cited  in  footnotes  to  East  Tennessee,  V.  &  G.  R.  Co.  v.  Atlanta  &  F.  R.  Co. 
15  L.  R.  A.  109,  which  authorizes  taking  fractions  of  day  into  consideration  in 
determining  priority  of  appointment  of  receivers ;  People  use  of  Chaddock  v. 
Barry,  18  L.  R.  A.  337,  which  requires  exclusion  of  day  of  service  and  return 
day  in  computing  time  for  appearance;  McGinn  v.  State,  30  L.  R.  A.  450,  which 
defines  calendar  month  as  period  terminating  with  day  of  succeeding  month 
corresponding  to  day  of  beginning  less  one. 

Cited  in  notes  (11  L.  R.  A.  724)  computation  of  time;  (11  L.  R.  A.  701) 
day  upon  which  an  act  done  excluded;  (78  Am.  St.  Rep.  381)  on  computation  of 
time. 

6  L.  R.  A.  545,  WYMORE  v.  MAHASKA  COUNTY,  78  Iowa,  396,  16  Am.  St. 

Rep.  449,  43  N.  W.  264. 
Imputed   negligence. 

Cited  in  Ives  v.  Welden,  114  Iowa,  478,  54  L.  R.  A.  855,  86  Am.  St.  Rep.  379, 
87  N.  W.  408,  holding  parent's  knowledge  that  jug  without  label  contains  gaso- 
line from  explosion  of  which  child  burned,  not  defeat  recovery  by  her;  Fink  v. 
Des  Moines,  115  Iowa,  642,  89  N.  W.  28,  holding  that  negligence  of  parents  can- 
not be  imputed  to  child  of  tender  years  injured  "while  playing  on  coal  chute; 
Warren  v.  Manchester  Street  R.  Co.  70  N.  H.  361,  47  Atl.  735,  holding  that  ad- 
ministrator may  recover  for  child's  death  notwithstanding  negligence  of  father 
contributed;  Evansville  v.  Senhenn,  151  Ind.  57,  41  L.  R.  A.  733,  68  Am.  St. 
Rep.  218,  47  N.  E.  634;  Jeffersonville  v.  McHenry,  22  Ind.  App.  15,  53  N.  E. 
183;  Bottoms  v.  Seaboard  &  R.  R.  Co.  114  N.  C.  713,  25  L.  R.  A.  792,  41  Am. 
St.  Rep.  799,  19  S.  E.  730 — holding  negligence  of  parent  not  imputable  to  child 
to  defeat  his  recovery  for  injury;  Norfolk  &  W.  R.  Co.  v.  Groseclose,  88  Va. 
270,  29  Am.  St.  Rep.  718,  13  S.  E.  454,  holding  negligence  of  parent  cannot  be 
imputed  to  child  of  tender  age;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Rexford,  59  Ark. 
186,  26  S.  W.  1037,  holding  that  negligence  of  parent  cannot  be  attributed  to 
child  in  her  action  to  recover  for  injuries;  Kowalski  v.  Chicago  G.  W.  R.  Co.  84 


1127  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  545 

Fed.  587,  holding  that  negligence  of  parent  cannot  be  imputed  to  child  of  ten- 
der years  permitted  to  travel  street  unattended;  Berry  v.  Lake  Erie  &  W.  R. 
Co.  70  Fed.  683,  and  Chicago  G.  W.  R.  Co.  v.  Kowalski,  34  C.  C.  A.  4,  92  Fed. 
312,  holding  that  parent's  negligence  cannot  be  imputed  to  child  in  its  action 
for  injuries;  Bamberger  v.  Citizens'  Street  R.  Co.  95  Tenn.  28,  28  L.  R.  A.  490, 
49  Am.  St.  Rep.  909,  31  S.  W.  163,  holding  that  negligence  of  father  cannot  be 
imputed  to  child;  Atlanta  &  C.  Air-Line  R.  Co.  v.  Gravitt,  93  Ga.  379,  26  L.  R. 
A.  557, %44  Am.  St.  Rep.  145,  20  S.  E.  553,  holding  negligence  of  father  not  im- 
putable  to  mother  suing  for  child's  death  under  statute;  Miles  v.  St.  Louis.  I.  M. 
&  S.  R.  Co.  90  Ark.  493,  119  S.  W.  837,  holding  that  parents  negligence  will  not  be 
imputed  to  child  in  action  for  benefit  of  the  child's  estate;  Scherer  v.  Schlaberg,  18 
N.  D.  438,  24  L.R.A.  (N.S.)  529,  122  N.  W.  1000  (dissenting  opinion),  on  same 
point;  McBride  v.  Des  Moines,  134  Iowa,  407,  109  N.  W.  618,  holding  that  neg- 
ligence of  driver  of  hose  cart  cannot  be  imputed  to  fireman  riding  thereon. 

Cited  in  footnote  to  Casey  v.  Smith,  9  L.  R.  A.  259,  which  holds  negligence 
of  custodian  imputable  to  young  child. 

Cited  in  notes  (8  L.  R.  A.  844)  on  imputing  another's  negligence  to  child;  (21 
L.  R.  A.  80)  on  contributory  negligence  of  parent  or  custodian  as  bar  of  action  by 
child  for  negligent  injuries;  (8  L.R.A.  495)  on  doctrine  of  imputed  negligence: 
(8  L.R.A. (N.S.)  665,  670)  on  imputed  negligence  of  driver  to  passenger;  (18 
L.R.A.  (N.S.)  331,  332)  on  contributory  negligence  of  parent  as  bar  to  action  by 
parent  or  administrator  for  death  of  child  non  sui  juris;  (32  L.R.A. (N.S.)  412) 
on  imputing  negligence  of  child's  custodian  to  parent  in  action  for  death  or 
injury;  (49  Am.  St.  Rep.  408;  110  Am.  St.  Rep.  283)  on  imputed  negligence. 

Distinguished  in  Tucker  v.  Draper,  62  Neb.  76,  54  L.R.A.  327,  86  N.  W.  917; 
O'Shea  v.  Lehigh  Valley  R.  Co.  79  App.  Div.  259,  79  N.  Y.  Supp.  890;  Richmond, 
F.  &  P.  R.  Co.  v.  Martin,  102  Va.  207,  45  S.  E.  894,— holding  that  negligence  of 
father  will  defeat  his  right  to  recover  for  the  death  of  infant  son. 
Contributory   negligence   affecting    recovery. 

Cited  in  Bradshaw  v.  Frazier,  113  Iowa,  583,  55  L.  R.  A.  261,  86  Am.  St.  Rep. 
394,  85  N.  W.  752,  holding  contributory  negligence  of  parents  in  caring  for  intes- 
tate, whose  death  resulted  from  exposure  after  improper  eviction  while  ill,  no  de- 
fense; Lewin  v.  Lehigh  Valley  R.  Co.  52  App.  Div.  77,  65  N.  Y.  Supp.  49,  holding 
that  father  can  recover  for  death  of  infant  child  contributed  to  by  his  own  negli- 
gence though  he  is  sole  beneficiary;  Ploof  v.  Burlington  Traction  Co.  70  Vt.  517, 
43  L.  R.  A.  112,  41  Atl.  1017,  holding  negligence  of  parents  in  permitting  boy  to 
go  on  street  no  bar  to  action  against  street  car  company  for  negligent  injury; 
Gunn  v.  Ohio  River  R,  Co.  42  W.  Va.  686,  36  L.  R.  A.  580,  26  S.  E.  546,  holding 
facts  as  to  imputed  negligence  of  father  not  sufficient  to  bar  recovery  for  death 
of  children;  Bamberger  v.  Citizens'  Street  R.  Co.  95  Tenn.  31,  28  L.  R.  A.  491,  49 
Am.  St.  Rep.  909,  31  S.  W.  163,  holding  that  father  as  sole  beneficiary  cannot 
bring  action  as  administrator  for  injury  to  child  to  which  his  negligence  con- 
tributed. 

Cited  in  footnote  to  Tucker  v.  Draper,  54  L.  R.  A.  321,  which  holds  father's 
contributory  negligence  prevents  action  by  him,  as  administrator,  for  child's 
death. 

Cited  in  notes  (6  L.  R,  A.  538)  as  to  when  infant  chargeable  with  negligence: 
(12  L.  R.  A.  217)  on  contributory  negligence  of  infant  of  tender  years;  (17  L.  R, 
A.  78)  on  contributory  negligence  of  child  as  bar  to  recovery. 

Distinguished  in  Christe  v.  Chicago,  R.  I.  &  P.  R.  Co.  104  Iowa,  712,  74  N.  W. 
•697,  holding  that  settlement  and  release  by  parents  of  deceased,  precludes  action 
by  administrator;  Wolf  v.  Lake  Erie  &  W.  R.  Co.  55  Ohio  St.  532,  36  L.  R,  A.  815, 


6  L.R.A.  545]  L.  R.  A.  CASES  AS  AUTHORITIES.  1128 

45  X.  E.  708,  holding  defense  of  contributory  negligence  of  beneficiary  available  as 
to  him,  but  not  as  to  other  beneficiaries  not  negligent. 

Disapproved  in  Davis  v.  Seaboard  Air  Line  R.  Co.  136  N.  C.  120,  48  S.  E.  591, 
1  A.  &  E.  Ann.  Cas.  214,  holding  contributory  negligence  of  father  available  as 
defense  in  action  to  recover  for  alleged  wrongful  death  of  infant  son. 

6  L.  R.  A.  548,  YOUNGS  v.  YOUNGS,  130  111.  230;  17  Am.  St.  Rep.  313,  22  N, 

E.  806. 
Divorce For    "habitual    intoxication." 

Cited  in  Ring  v.  Ring,  112  Ga.  858,  38  S.  E.  330,  holding  excessive  and  habitual 
use  of  opiates  not  habitual  intoxication;  Union  League  v.  Ransley,  35  Pa.  Co.  Ct. 
279.  17  Pa.  Dist.  R.  603,  on  construction  of  word  "drunkenness"  as  used  in  divorce 
statute. 

Cited  in  footnote  to  Ring  v.  Ring,  62  L.R.A.  878,  which  holds  habitual  and  in- 
temperate use  of  morphine  not  cruel  treatment  entitling  other  spouse  to  divorce. 

Cited  in  notes  (34  L.  R.  A.  450)  on  what  constitutes  drunkenness;   (39  L.  R.  A. 
264)  on  morphine  habit  as  ground  for  divorce;   (19  Am.  St.  Rep.  433)  on  grounds 
for  divorce. 
For   cruelty. 

Cited  in  Coles  v.  Coles,  130  Ky.  351,  113  S.  W.  417,  on  excessive  sexual  inter- 
course as  cruelty;  Garrett  v.  Garrett,  252  111.  327,  96  N.  E.  882,  holding  that  acts 
of  violence  on  part  of  wife  in  resisting  ill-treatment  by  husband  are  not  defense 
in  action  for  divorce  brought  by  wife;  Lorenson  v.  Lorenson,  155  111.  App.  39,  as 
to  what  constitutes  extreme  cruelty  under  statute  regulating  actions  for  di- 
vorce and  separation. 

Cited  in  footnote  to  Maddox  v.  Maddox,  52  L.  R.  A.  628,  which  denies  right  to 
divorce  for  cruelty  from  failure  to  provide  suitable  dwelling  house,  clothing,  and 
food. 

Cited  in  notes   (34  L.R.A.  165)   on  insanity  as  affecting  cruelty;    (65  Am.  St. 
Rep.  74,  79,  82)   on  cruelty  as  ground  for  divorce. 
Condonation. 

Cited  in  Nullmeyer  v.  Nullmeyer,  49  111.  App.  577,  holding  that  acts  of  cruelty 
may  be  condoned;  Abbott  v.  Abbott,  192  111.  442,  61  N.  E.  350,  holding  cruelty 
condoned  wThere  wife  continued  to  live  with  the  husband  for  three  years  after 
last  act  of  violence. 

Cited  in  note  (84  Am.  St.  Rep.  137)  on  loss  of  right  to  divorce  after  it  is 
perfected. 

6  L.  R.  A.  551,  HATHAWAY  v.  LYNN,  75  Wis.  186,  43  N.  W.  956. 
Abandonment    of    contract;    consideration. 

Cited  in  Dyer  v.  Middle  Kittitas  Irrig.  Dist.  25  Wash.  94,  64  Pac.  1009,  holding 
that  agreement  for  abandonment  of  contract  requires  no  independent  considera- 
tion for  its  support. 

Cited  in  note   (13  L.  R.  A.  633)  on  parol  evidence  to  show  waiver. 
Penalty  or  liquidated    damages. 

•Cited  in  Boulware  v.  Crohn,  122  Mo.  App.  585,  99  S.  W.  796,  holding  provision 
in  contract  for  sale  of  land  which  binds  seller  to  keep  in  repair,  to  keep  insured. 
to  furnish  abstract  and  to  put  deed  in  escrow,  with  forfeiture  of  $500  for  breach 
of  either,  to  be  penalty;  Werner  v.  Finley,  144  Mo.  App.  561,  129  S.  W.  73. 
holding  that  liquidated  damages  cannot  be  recovered  unless  there  is  substantial 
breach  of  contract  resulting  in  more  than  nominal  damages:  Brown  v.  Edsall,  23 
S.  D.  616.  122  X.  W.  658,  holding  that  there  must  be  substantial  breach  of  con- 


1129  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  353 

tract  to  refrain  from  carrying  on  certain  business  by  actually  engaging  in  such 
business  before  action  to  recover  for  forfeiture  provided  can  be  maintained. 

Cited  in  footnotes  to  Chicago-House  Wrecking  Co.  v.  United  States,  53  L.  R.  A. 
122,  which  holds  stipulation  for  certain  sum  as  damages  for  failure  to  remove 
building  by  certain  time,  penalty,  when  actual  damages  easily  assessable;  Meyer 
v.  Estes,  32  L.  R.  A.  283,  which  holds  penalty  provided  for  by  contract  that 
purchaser  wrongfully  using  electrotype  plates  shall  pay  fine  of  ten  times  their 
price;  Krutz  v.  Robbins,  28  L.  R.  A.  676,  which  holds  agreement  for  greater  rate 
of  interest  on  default  in  paying  principal,  interest,  etc.,  a  penalty;  State  v.  Lar- 
son, 54  L.  R.  A.  487,  which  holds  amount  of  liquor  license  bond,  a  penalty;  Kil- 
bourne  v.  Burt  &  B.  Lumber  Co.  55  L.  R.  A.  275,  which  holds  provision  for  retain- 
ing 15  cents  per  hundred  feet  for  logs  not  delivered  by  specified  date,  one  for  liqui- 
dated damages;  Salem  v.  Anson,  56  L.  R.  A.  169.  which  holds  stipulated  amount 
to  be  paid  to  city  for  failure  to  complete  electric  light  plant  within  specified  time, 
liquidated  damages;  Pierce  v.  Whittlesey,  7  L.  R.  A.  286,  which  holds  agreed  for- 
feiture of  two  weeks  wages  on  leaving  without  notice,  defense  without  showing 
special  damage. 

Cited  in  notes  (10  L.  R.  A.  829)  on  when  forfeiture  construed  as  liquidated 
damages;  (11  L.  R.  A.  681)  on  damages  for  breach  of  contract;  (18  L.  R.  A.  386) 
on  measure  of  damages  for  breach  of  implied  warranty. 

Disapproved  in  Sanford  v.  First  Nat.  Bank,  94  Iowa,  684,  63  N.  W.  459, 
holding  that  in  action  to  recover  liquidated  damages  no  proof  of  actual  damages 
is  necessary. 

6  L.  R.  A.  553,  BEXXETT  v.  BEXXETT,  116  N.  Y.  584,  23  N.  E.  17. 
Alienation    of   affections Wife'g    right    to   maintain    action. 

Cited  in  Deitzman  v.  Mullin,  108  Ky.  614,  50  L.  R.  A.  810,  footnote  p.  808,  94 
Am.  St.  Rep.  390,  57  S.  W.  247 ;  Humphrey  v.  Pope,  122  Cal.  258,  54  Pac.  847 ; 
Haynes  v.  Xowlin,  129  Ind.  583,  14  L.  R.  A.  790,  28  Am.  St.  Rep.  213,  29  X.  E. 
389;  Price  v.  Price,  91  Iowa,  698,  29  L.  R.  A.  151,  51  Am.  St.  Rep.  360,  60  X.  W. 
202;  Wolf  v.  Frank,  92  Md.  140,  52  L.  R.  A.  104,  footnote  p.  102,  48  Atl.  132; 
Warren  v.  Warren,  89  Mich.  125,  14  L.  R.  A.  547,  footnote  p.  545,  50  X.  W. 
842;  Lockwood  v.  Lockwood,  67  Minn.  482,  70  N.  W.  784;  Clow  v.  Chapman,  125 
Mo.  104,  26  L.  R.  A.  413,  footnote  p.  412,  46  Am.  St.  Rep.  468,  28  So.  328;  Man- 
warran  v.  Mason,  79  Hun,  593,  29  X.  Y.  Supp.  915;  Van  Olinda  v.  Hall,  88  Hun, 
453,  34  X.  Y.  Supp.  777;  Romaine  v.  Decker,  11  App.  Div.  22,  43  X.  Y.  Supp.  79; 
Kuhn  v.  Hemmann,  43  App.  Div.  110,  59  X.  Y.  Supp.  341;  Beach  v.  Brown,  20 
Wash.  269,  43  L.  R.  A.  116.  72  Am.  St.  Rep.  98,  55  Pac.  46;  Gernerd  v.  Gernerd, 
185  Pa.  236,  40  L.  R.  A.  550,  64  Am.  St.  Rep.  646,  42  W.  X.  C.  51,  39  Atl.  884: 
Holmes  v.  Holmes,  133  Ind.  388,  32  X.  E.  932,— holding  wife  entitled  to  maintain 
action  in  own  name  for  enticing  away  husband,  alienating  affections,  and  depriv- 
ing her  of  his  society;  Williams  v.  Williams,  20  Colo.  55,  37  Pac.  614;  Hodgkin- 
son  v.  Hodgkinson,  43  Xeb.  271,  27  L.  R.  A.  121,  footnote  p.  120,  47  Am.  St.  Rep. 
759,  61  X.  W.  577;  Gernerd  v.  Gernerd,  185  Pa.  236,  40  L.  R.  A.  550,  64  Am.  St. 
Rep.  646,  39  Atl.  884, — holding  that  wife  may  maintain  action  against  one  wrong- 
fully procuring  husband  to  abandon  her,  or  send  her  away;  Postlewaite  v.  Postle- 
waite,  1  Ind.  App.  478,  28  X.  E.  99,  holding  that  divorced  woman  may  maintain 
ac'ion  for  alienation  of  affections  of  former  husband;  Weston  v.  Weston,  86  App. 
Div.  162,  83  X.  Y.  Supp.  528,  construing  complaint  alleging  acquisition  of  im- 
proper influence  over  and  intercourse  with  plaintiff's  wife  as  stating  cause  of  ac- 
tion for  alienating  affections;  Servis  v.  S;>rvis.  172  X.  V.  444.  65  X.  E.  270,  by 
Bartlett.  J..  dissenting,  as  to  wife's  right  to  maintain  action  for  alienation  of  hus- 
band's affections:  Dodge  v.  Rush,  28  App.  D.  C.  152,  8  A.  &  E.  Ann.  Cas.  671; 


6  L.R.A.  553]  L.  R.  A.  CASES  AS  AUTHORITIES.  1130 

Smith  v.  Gillapp,  123  111.  App.  123;  King  v.  Hanson,  13  N.  D.  97,  99  X.  W. 
1085;  Quick  v.  Church,  23  Ont.  Rep.  271, — holding  that  wife  may  maintain  action 
for  the  alienation  of  her  husband's  affections;  Xolin  v.  Pearson,  191  Mass.  287, 
4  L.R.A.(N.S.)  647,  114  Am.  St.  Rep.  605,  77  N.  E. -890,  6  A.  &  E.  Ann.  Cas. 
658,  holding  that  wife  may  maintain  action  against  another  woman  for  de- 
bauching and  carnally  knowing  her  husband  whereby  his  affections  were  alienated; 
Sims  v.  Sims,  79  N.  J.  L.  580,  29  L.R.A.  ( N.S. )  845,  76  Atl.  1063,  holding  that 
under  act  of  1906,  chapter  248,  wife  may  maintain  action  in  her  own  name  for 
alienation  of  husband's  affections;  Riddle  v.  MacFadden,  201  N.  Y.  218,  94  N.  E, 
644,  to  the  point  that  action  by  wife  to  recover  damages  for  alienation  of  hus- 
band's affections  is  action  for  personal  injury;  O'Gorman  v.  Pfeiffer,  145  App, 
Div.  239,  130  N.  Y.  Supp.  77,  holding  that  wife  whose  husband  has  been  enticed 
away  may  maintain  action  for  loss  of  support  and  of  his  society. 

Cited  in  footnotes  to  Foot  v.  Card,  6  L.  R.  A.  829,  and  Betser  v.  Betser,  52  L.  R. 
A.  630,  which  sustain  wife's  right  of  action  for  alienating  husband's  affections; 
Houghton  v.  Rice,  47  L.  R.  A.  310,  which  denies  right  of  action  against  another 
woman  for  alienating  husband's  affections  unaccompanied  by  adultery;  Sanbom 
v.  Gale,  28  L.  R,  A.  864,  which  holds  running  of  limitation  against  action  for 
alienation  of  wife's  affections  not  prevented  by  agreement  of  parties  to  adultery 
to  deny  facts  known  to  husband;  Tucker  v.  Tucker,  32  L.  R.  A.  623,  which  holds 
parent  not  liable  for  advising  son  to  separate  from  wife;  Doe  v.  Roe,  8  L.  R,  A. 
833,  which  holds  action  for  alienating  husband's  affections  by  debauching  and 
carnally  knowing  him,  not  maintainable. 

Cited  in  notes  (8  L.  R.  A.  420)  on  action  for  alienation  of  husband's  affection's; 
(10  L.  R.  A.  468)  on  liability  for  interrupting  marital  relations;  (11  L.  R.  A, 
549)  on  inducements  to  violate  obligations  not  actionable;  (28  Am.  St.  Rep.  218; 
46  Am.  St.  Rep.  473,  474,  477)  on  wife's  action  for  alienation  of  husband's  af- 
fections. 

Distinguished  in  Hodge  v.  Wetzler,  69  N.  J.  L.  492,  55  Atl.  49,  denying  right  of 
wife  to  maintain  action  for  alienation  for  her  husband's  affections  and  enticing 
him  away;  Buckel  v.  Suss,  28  Abb.  N.  C.  22,  18  N.  Y.  Supp.  719,  holding  that 
no  action  lies  by  married  woman  for  enticing  away  her  husband  where  the  wife 
voluntarily  left  her  husband. 

Disapproved  in  effect  in  Duffies  v.  Duffies,  76  Wis.  380,  8  L.  R.  A.  423,  20  Am. 
St.  Rep.  79,  45  N.  W.  522,  holding  that  wife  cannot  maintain  action  against  one 
enticing  away  husband  or  depriving  her  of  his  society,  support,  and  maintenance ; 
Lonstorf  v.  Lonstorf,  118  Wis.  161,  95  N".  W.  961,  denying  wife's  right  of  action 
for  alienation  of  husband's  affections;  Smith  v.  Smith,  98  Tenn.  106,  60  Am.  St. 
Rep.  838,  38  S.  W.  439,  holding  under  statute  giving  deserted  wife  authority  to 
prosecute  any  action  which  husband  might  have  prosecuted,  deserted  wife  cannot 
maintain  action  for  alienation  of  husband's  affections  causing  desertion. 
—  Gist  of  action. 

Cited  in  Van  Olinda  v.  Hall,  88  Hun,  456,  34  N.  Y.  Supp.  777;  Buchanan  v. 
Foster,  23  App.  Div.  544,  48  N.  Y.  Supp.  732;  Billings  v.  Albright,  66  App.  Div. 
242,  73  N.  Y.  Supp.  22;  Hollister  v.  Valentine,  69  App.  Div.  584,  75  N.  Y.  Supp. 
115;  Daley  v.  Gates,  65  Vt.  593,  27  Atl.  193, — holding  that  basis  of  action  for  ali- 
enating affections  of  husband  or  wife  is  loss  of  consortium,  or  right  of  plaintiff  to 
conjugal  society  of  alienated  husband  or  wife;  Whitman  v.  Egbert,  27  App.  Div. 
375,  50  N.  Y.  Supp.  3;  Eldredge  v.  Eldredge,  79  Hun,  513,  2fi  X.  Y.  Supp.  941, 
holding  that  plaintiff  must  show  defendants  wrongfully  enticed  husband,  and 
deprived  her  of  his  society,  to  support  action  for  alienating  affections. 
\V  hat  Is  property. 

Cited  in  Wilson  v.  JEolian  Co.  64  App.  Div.  341,  72  N.  Y.  Supp.  150,  holding 


1131  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  559 

chose  in  action  is  property ;  Barry  v.  Port  Jervis,  64  App.  Div.  283,  72  N.  Y.  Supp. 
104,  holding  that  right  of  action  for  personal  injury  to  property  cannot  be  taken 
away  by  unreasonable  statute  of  limitation. 
Parties    to    action. 

Cited  in  Weld  v.  New  York,  L.  E.  &  W.  R,  Co.  68  Hun,  251,  22  N.  Y.  Supp. 
974,  and  Campbell  v.  Perry,  29  N.  Y.  S.  R.  670,  9  N.  Y.  Supp.  330,  holding  husband 
not  proper  party  plaintiff  in  action  by  wife  for  injuries  to  person;  Bradley  v. 
Shafer,  64  Hun,  432,  19  X.  Y.  Supp.  640,  holding  husband  necessary  party  defend- 
ant to  action  against  wife  for  plaintiff's  loss  of  services  of  daughter  seduced  by 
defendant's  son. 

Cited  in  note  (28  Am.  St.  Rep.  79)   on  joinder  of  husband  and  wife  in  action 
for  personal  injury. 
Damages   for  personal   injuries. 

Cited  in  Kujek  v.  Goldman,  150  N.  Y.  180,  34  L.  R.  A.  158,  55  Am.  St.  Rep. 
670,  44  N.  E.  773,  Affirming  9  Misc.  38,  29  N.  Y.  Supp.  294,  holding  loss  of  con- 
jugal fellowship  and  society  of  wife,  through  misconduct  of  third  person,  action- 
able injury  without  proof  of  pecuniary  loss;  Haden  v.  Clarke,  32  N.  Y.  S.  R.  479, 
10  N.  Y.  Supp.  291,  holding  that  married  woman  may  recover  for  pain  and  suffer- 
ing caused  by  personal  injury;  Kelley  v.  New  York,  N.  H.  &  H.  R,  Co.  168  Mass. 
310,  38  l>.  R,  A.  632,  60  Am.  St.  Rep.  397,  46  i\.  E.  1063,  holding  that  recovery 
by  husband  in  action  for  personal  injury  to  wife  may  include  damages  for  loss  of 
wife's  consortium;  Williams  v.  Williams,  20  Colo.  67,  37  Pac.  614,  holding  entic- 
ing husband  to  abandon  wife,  personal  injury  within  statute  permitting  exemplary 
damages  for  injuries  to  person;  Mulvey  v.  Boston,  197  Mass.  180,  83  N.  E.  402, 
14  A.  &  E.  Ann.  Gas.  349,  holding  that  action  by  husband  for  loss  of  services  and 
society  of  wife  resulting  from  injury  to  her  is  an  action  for  personal  injuries. 
Novelty  as  objection  to  action. 

Cited  in  Weber  v.  Rogers,  41  Misc.  664,  85  N.  Y.  Supp.  232,  holding  novelty  not 
insuperable  objection  to  action  temporarily  to  restrain  summary  proceedings  dur- 
ing tenant's  dangerous  illness. 

6  L.  R.  A.  559,  HENDRICKS  v.  ISAACS,  117  N.  Y.  411,  15  Am.  St.  Rep.  524,  22 

N.  E.  1029. 
Validity    of    contract    between    bnsband    and    wife. 

Cited  in  Harlem  River  Bank  v.  Meyer,  42  N.  Y.  S.  R,  465,  16  N.  Y.  Supp.  872, 
holding  wife  not  liable  upon  indorsement  of  husband's  demand  note,  to  one  receiv- 
ing same  for  husband's  antecedent  debt;  Lowenstein  v.  Salinger,  42  N.  Y.  S.  R. 
414,  17  N.  Y.  Supp.  70.  holding  wife  not  liable  on  contract  made  in  conduct  of 
unauthorized  copartnership  with  husband;  Lawrence  v.  Lawrence,  32  Misc.  505,  66 
N.  Y.  Supp.  393,  Reversing  31  Misc.  649,  64  N.  Y.  Supp.  1113,  holding  agreement 
in  1888  between  husband  and  wife  living  together,  but  while  divorce  action  pend- 
ing, to  make  payments  for  support,  void;  Re  Callister,  153  N.  Y.  302,  60  Am. 
St.  Rep.  620,  47  N.  E.  268,  Modifying  88  Hun,  90,  34  N.  Y.  Supp.  628,  holding  that 
not  till  after  1888  could  husband  make  enforceable  agreement  with  wrife  for  her 
personal  services,  rendered  apart  from  separate  business;  Suau  v.  Gaffe,  122  N.  Y. 
318,  9  L.  R.  A.  596,  25  N.  E.  488  (dissenting  opinion),  majority  holding  wife 
liable  on  copartnership  agreement  with  husband,  notwithstanding  coverture  where 
authorized  to  trade  on  separate  account;  Board  of  Trade  v.  Hayden,  4  Wash.  272, 
1C  L.  R.  A.  534,  31  Am.  St.  Rep.  919,  30  Pac.  87;  Fuller  &  F.  Co.  v.  McHenry,  83 
Wis.  581,  18  L.  R.  A.  515,  53  N.  W.  896,  holding  wife's  partnership  with  husband 
not  within  statute  authorizing  her  to  contract  as  to  separate  estate;  Bailey  v. 
Dillon,  186  Mass.  247,  66  L.R.A.  428,  71  N.  E.  538,  holding  enforceable  a  fair 


6  L.R.A.  559]  L.  R.  A.  CASES  AS  AUTHORITIES.  1132 

and  voluntary  contract  between  wife  and  husband's  trustee  for  her  support  after 
separation;  France  v.  France,  38  Misc.  461,  77  X.  Y.  Supp.  1015,  holding  enforce- 
able contract  by  husband  for  maintenance  of  wife  after  separation;  Norwood  v. 
Francis,  25  App.  D.  C.  475,  4  A.  &  E.  Ann.  Cas.  865,  holding  that  married  woman 
cannot  enter  into  a  valid  copartnership  with  her  husband:  Kimball  v.  Kimball,  75 
N.  H.  292,  73  Atl.  408,  holding  that  common-law  rule  which  refused  to  recognize 
contracts  between  husband  and  wife  exists  in  this  state  except  as  modified  by 
statute;  Booth  v.  Fordham,  110  App.  Div.  118,  91  N.  Y.  Supp.  406,  on  invalid- 
ity of  conveyances  between  husband  and  wife. 

Cited  in  footnote  to  Dempster  Mill  Mfg.  Co.  v.  Bundy,  56  L.  R.  A.  739,  which 
holds  void,  contract  that  product  of  joint  labor  of  husband  and  wife  shall  belong 
to  wife. 

Cited  in  notes  (34  Am.  St.  Rep.  340)  on  power  of  married  women  to  be  part- 
ners; (83  Am.  St.  Rep.  859,  882)  on  validity  and  effect  of  separation  agreements. 

Cited  as  changed  by  statute,  in  France  v.  France,  38  Misc.  461.  77  N.  Y.  Supp. 
1015,  holding  bond  for  support  given  by  husband  and  wife  upon  discontinuance  of 
divorce  proceedings,  not  within  inhibition  of  court's  acts  to  alter  marriage  or 
relieve  from  liability  to  support. 
Enforcement     of     equitable     agreement. 

Cited  in  Hulse  v.  Bacon,  40  App.  Div.  92,  57  N.  Y.  Supp.  537,  holding  that 
deed  to  wife  of  property  purchased  with  husband's  means,  supports  reconveyance; 
Hulse  v.  Bacon,  26  Misc.  457,  57  X.  Y.  Supp.  537.  sustaining  validity  of  recon- 
veyance in  1858  of  home  and  shipyard  previously  given  by  husband  to  wife:  Hun- 
gerford  v.  Hungerford,  161  N.  Y.  553,  56  N.  Y.  Supp.  117,  permitting  wife  to  re 
ecind  separation  agreement  providing  inadequate  support,  executed  inadvisedly 
while  suffering  from  ill  treatment;  Cheney  v.  Thornton,  43  N.  Y.  S.  R.  511,  17  N. 
Y.  Supp.  545,  holding  husband  without  interest  in  mortgage  given  him  without 
consideration  by  wife  purchasing  at  foreclosure  of  his  previous  mortgage;  Bohan- 
non  v.  Travis,  94  Ky.  63,  21  S.  W.  354,  holding  deed  from  wife  to  husband  not 
enforceable  in  equity,  in  view  of  laches;  Livingston  v.  Hall,  73  Md.  396,  21  Atl. 
49,  refusing  to  sustain  deed  to  husband  by  wife  having  children  by  former  mar- 
riage, made  in  consideration  of  natural  affection  and  $1.  in  absence  of  allegations 
of  possession,  or  title  questioned,  or  proof  of  circumstances  of  making. 

Distinguished  in  Blaechinska  v.  Howard  Mission  &  Home  for  Little  Wanderers, 
130  N.  Y.  500,  15  L.  R.  A.  217,  29  N.  E.  755,  holding  contract  by  husband  to  pay 
wife  for  services  in  his  business,  not  enforceable;  Shaffer  v.  Kugler,  107  Mo.  63. 
17  S.  W.  698,  holding  wife's  conveyance  upon  sufficient  consideration  of  land  to 
husband,  not  enforceable  in  equity. 
Duty  to  support. 

Cited  in  Nostrand  v.  Ditmis,  127  N.  Y,  360,  28  N.  E.  27,  holding  mere  fact  of 
use  by  wife  of  her  separate  funds  for  necessaries,  not  prove  liability  by  husband  to 
repay;  Re  Hamilton,  70  App.  Div.  76.  75  X.  Y.  Supp.  66,  Reversing  34  Misc.  609, 
70  N.  Y.  Supp.  426,  holding  that  marriage  relation  precludes  presumption  of 
promise  to  pay  for  board  and  lodging  supplied  by  wife;  Maxwell  v.  Lowther,  35 
N.  Y'.  S.  R.  768,  13  N.  Y.  Supp.  169,  holding  wife  not  liable  to  husband's  creditors 
for  services  which  he  voluntarily  rendered  her  separate  estate;  Clift  v.  Moses,  75 
Hun,  522,  27  N.  Y.  Supp.  728,  holding  transfer  to  wife  in  settlement  of  wife's  ex- 
penditure for  their  living  expenses,  fraudulent ,  Brundage  v.  Munger,  54  App. 
Div.  552,  66  N.  Y.  Supp.  1014,  holding  that  husband's  voluntary  payment  for  in- 
terest, taxes  and  repairs  when  wife's  property  imposes  no  lien  in  favor  of  his 
creditors;  Re  Hamilton,  70  App.  Div.  70,  75  X.  Y.  Supp.  66,  sustaining  recovery 
by  wife  for  support  and  board  of  husband  where  he  recognized  the  obligation  by 
a  written  statement. 


1133  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  562 

Costs. 

Cited  in  Walker  v.  Gardener.  8  Misc.  469.  29  X.  Y.  Supp.  669,  holding  reference 
of  claim  against  estate  "special  proceeding"  as  to  costs. 

6  L.  R,  A.  562,  BAILEY  v.  BUCHANAN  COUNTY,  115  N.  Y.  297,  26  N.  Y.  S.  R. 

128,  22  X.  E.  155. 
Condition    of    payment. 

Cited  in  Halpin  v.  Phenix  Ins.  Co.  118  N.  Y.  176,  23  N.  E.  482.  holding  that 
mortgagor  who  tenders  amount  due,  may  attach  condition  that  mortgagee  execute 
discharge;  Ballou  v.  Manhattan  Real  Estate  &  Loan  Co.  19  Misc.  701,  45  N.  Y. 
Supp.  10,  holding  that  withdrawing  member  of  loan  association  must  surrender 
certificate  as  condition  of  payment;  Osterman  v.  Goldstein,  31  Misc.  503,  64  N. 
Y.  Supp.  555,  holding  that  debtor  liable  on  written  instrument,  may  demand  sur- 
render as  condition  of  payment;  Zander  v.  New  York  Security  &  T.  Cot  178  N.  Y. 
212,  70  N.  E.  449,  holding  that  person  suing  upon  lost  certificate  of  deposit,  pay- 
ment of  which  is  conditioned  on  surrender,  need  not  indemnify  trust  company; 
Engelbach  v.  Simpson,  12  Tex.  Civ.  App.  196,  33  S.  W.  596,  holding  tender  made 
upon  condition  that  release  of  vendor's  lien  be  delivered  on  final  payment  of  pur- 
chase money,  valid. 
Sufficiency  of  tender. 

Cited  in  Osterman  v.  Goldstein,  32  Misc.  678,  66  N.  Y.  Supp.  506,  holding  ten- 
der by  indorsers  of  amount  due  on  condition  that  note  be  surrendered  should  be 
kept  good  by  payment  into  court  or  averment  of  continued  readiness  to  pay. 

Cited  in  footnote  to  Moore  v.  Norman,   18  L.  R.  A.  359,  which  holds  tender 
coupled    with    demand    of    surrender    of    notes    ineffectual    to    discharge    chattel 
mortgage. 
Detached  coupons. 

Cited  in  Benttys  v.  Solon,  64  Hun,  128,  19  N.  Y.  Supp.  37,  holding  that  de- 
tached coupons  are,  for  many  purposes,  separate  instruments. 

Cited  in  footnote  to  Internal  Improv.  Fund  v.  Lewis,  26  L.  R.  A.  743,  which 
holds  cancelation  or  payment  of  bond  before  maturity  not  affect  rights  of  bona 
fide  holder  of  coupon. 
Coupons  as  specialities. 

Cited  in  Kelly  v.  Forty-second  Street,  M.  &  St.  N.  Ave.  R.  Co.  37  App.  Div.  508, 
55  N.  Y.  Supp.  1096;  Smith  v.  Greenwich,  80  Hun,  120,  30  N.  Y.  Supp.  56,  holding 
interest  coupons  specialties  like  the  bonds  and  governed  by  same  statute  of  lim- 
itations: Hibbs  v.  Brown,  112  App.  Div.  223,  98  N.  Y.  Supp.  353,  on  negotia- 
bility of  coupon  bonds  and  interest  coupons;  Quackenbush  v.  Mapes,  123  App.  Div. 
246,  107  N.  Y.  Supp.  1047,  holding  that  interest  on  mortgage  is  subject  to  same 
statute  of  limitations  as  the  mortgage  itself,  but  statute  runs  from  time  each 
instalment  is  due. 
Guaranty  not  g'ood  as  to  coupon  holder. 

Cited  in  Clokey  v.  Evansville  &  T.  H.  R.  Co.  16  App.  Div.  306,  44  N.  Y.  Supp. 
631,  holding  guaranty  to  bondholder  of  punctual  payment  of  principal  and  inter- 
est not  inure  to  benefit  of  holder  of  negotiated  coupon. 
Recovery    of    interest    npon    coupons. 

Cited  in  Smith  v.  Greenwich,  80  Hun,  121,  30  N.  Y.  Supp.  56,  holding  that 
owners  of  detached  coupons  may  sue  to  recover  accrued  interest  thereon;  Wil- 
liamsburgh  Sav.  Bank  v.  Solon.  136  N.  Y.  481,  32  N.  V.  1058.  holding  coupons 
of  town  bonds  mere  incidents  thereto  while  in  possession  of  a  bondholder  and 
that  interest  is  not  recoverable  thereon ;  Columbus.  S.  &  H.  R.  Co.'s  Appeal,  48 
C.  C.  A.  291,  109  Fed.  193,  holding  interest  not  recoverable  upon  coupons  in  the 


6  L.R.A.  562]  L.  R.  A.  CASES  AS  AUTHORITIES.  1134 

hands  of  the  holders  of  the  bonds,  where  principal  and  interest  on  the  bonds 
are  payable  in  New  York;  Beattys  v.  Solon,  64  Hun,  126,  19  N.  Y.  Supp.  37 
(dissenting  opinion),  majority  holding  interest  recoverable  on  overdue  coupons 
of  a  railroad  coupon  bond;  Lake  County  v.  Linn,  29  Colo.  467,  68  Pac.  839  (dis- 
senting opinion),  majority  holding  interest  recoverable  on  overdue  coupons  on 
county  bonds. 

6  L.  R.  A.  565,  SPIES  v.  CHICAGO  &  E.  I.  R.  CO.  40  Fed.  34. 

Accounting-. 

Cited  in  Cook  County  Brick  Co.  v.  Kaehler,  83  111.  App.  454,  holding  share- 
holder entitled  to  accounting  after  declaration  of  dividend. 
Effect   of   mortgage   on    Income   of   corporation. 

Cited  in  Central  R.  Co.  v.  Central  Trust  Co.  135  Ga.  482,  69  S.  E.  708,  to  the 
point  that  disposition  of  net  income  is  not  to  be  governed  by  discretion  of  direct- 
ors but  by  terms  of  bonds  and  mortgage  securing  their  payment. 

Cited  in  footnote  to  New  York  Security  &  T.  Co.  v.  Saratoga  Gas  &  Electric 
Light  Co.  45  L.  R.  A.  132,  which  holds  general  creditors  preferred  to  mortgage 
bondholders  in  corporate  earnings  before  property  taken  by  trustee  or  receiver. 

Cited  in  note   (9  L.  R.  A.  143)   on  mortgage  on  future  acquired  property. 

6  L.  R.  A.  569,  PATTON  v.  LEFTWICH,  86  Va.  421,  19  Am.  St.  Rep.  902,  10 

S.  E.  686. 
Rig-hts  and  liabilities  of  partners. 

Cited  in  Burchinell  v.  Koon,  8  Colo.  App.  465,  46  Pac.  932,  holding  that  valid 
mortgage  of  partnership  property  to  secure  firm  debts  may  be  executed;  Riley 
v.  Carter,  76  Md.  593,  19  L.  R.  A.  494,  35  Am.  St.  Rep.  443,  25  Atl.  667,  holding 
deed  of  trust  for  benfit  of  creditors,  by  insane  survivng  partner  of  insolvent 
firm,  valid,  until  impeached  by  creditors;  Millhiser  v.  McKinley,  98  Va.  209,  35 
S.  E.  446,  holding  preferences  in  assignment  by  partners  made  prior  to  bank- 
ruptcy law,  valid;  People's  Nat.  Bank  v.  Wilcox,  136  Mich.  577,  100  N.  W.  24, 
4  A.  &  E.  Ann.  Cas.  465,  holding  that  mortgage  given  by  surviving  partner  for 
money  loaned  to  the  firm  gives  mortgagee  preference  over  other  creditors  in  assets 
mortgaged ;  American  Bonding  Co.  v.  State,  40  Ind.  App.  565,  82  N.  E.  548 ; 
Bartlett  v.  Smith,  5  Neb.  (Unof.)  339,  98  N.  W.  687,— holding  that  surviving 
partner  of  insolvent  firm  may  prefer  one  bona  fide  creditor  to  the  exclusion  of 
others  if  acting  in  good  faith. 

Cited  in  footnotes  to  Hundley  v.  Farris,  12  L.  R.  A.  254,  which  holds  individ- 
ual creditors  primarily  entitled  to  payment  out  of  deceased  partner's  estate; 
Re  Baldwin,  58  L.  R.  A.  122,  which  sustains  individual  liability  of  member  of 
banking  firm,  signing  name  to  certificate  of  deposit,  enforceable  against  estate 
in  preference  to  claims  against  firm;  Kincaid  v.  National  Wall  Paper  Co.  54 
L.  R.  A.  412,  which  sustains  right  of  partners  to  appropriate  with  other  part- 
ners' consent  interest  in  firm  to  pay  individual  in  preference  to  firm  debts. 

Distinguished  in  State  ex  rel.  Richardson  v.  Withrow,  141  Mo.  77,  41  S.  W. 
980,  holding  assignment  by  surviving  partner,  operating  to  take  firm  property 
out  of  probate  court,  void  by  statute;  Rogers  v.  Flournoy,  21  Tex.  Civ.  App. 
558,  54  S.  W.  386,  holding  that  surviving  partner  cannot  make  valid  assignment 
of  individual  interest  for  benefit  of  creditors. 
Validity  of  assignment  for  creditors. 

Cited  in  notes  ( 30  Am.  St.  Rep.  816 )  on  validity  of  assignment  for  benefit  of 
creditors;  (34  Am.  St.  Rep.  856)  on  preferences  in  assignments  for  creditors. 


1135  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  576 

6  L.  R.  A.  573,  JORDAN  v.  ST.  PAUL,  M.  &  M.  R.  CO.  42  Minn.  172,  43  N.  W. 

849. 
Surface    water. 

Cited  in  Brown  v.  Winona  &  S.  W.  R.  Co.  53  Minn.  263,  39  Am.  St.  Rep.  603, 
55  N.  W.  123,  holding  that  owner  may  improve  his  lands  in  such  a  way  as  to 
cast  surface  water  in  streams  on  adjoining  premises;  Johnson  v.  Chicago,  St. 
P.  M.  &  O.  R.  Co.  80  Wis.  646,  14  L.  R.  A.  497,  27  Am.  St.  Rep.  76, 
50  N.  W.  771,  holding  surface  water  including  that  received  from  higher 
levels  by  embankments  or  ditches  may  be  diverted  to  lands  of  another  whose  rem- 
edy is  to  pass  it  on;  Clauson  v.  Chicago  &  N.  VV.  R.  Co.  106  Wis.  315,  82  X.  W. 
146,  holding  that  property  owner  cannot  recover  for  damage  to  lands  from  water 
bearing  sand  and  gravel  cast  thereon,  incidental  to  improvement  of  railroad 
property  by  changing  grade;  Missouri  P.  R.  Co.  v.  Renfro,  52  Kan.  242,  39  Am. 
St.  Rep.  344,  34  Pac.  802,  holding  railroad  company  not  liable  to  adjoining 
owner  for  injuries  from  surface  water  due  to  properly  constructed  embank- 
ment; Beach  v.  Gaylord,  43  Minn.  477,  45  N.  W.  1095,  holding  that  property 
owner  cannot  collect  water  in  gutter  pipes  in  great  volume  and  discharge  it  upon 
his  own  land  at  point  where  it  will  flow  upon  neighboring  premises  in  increased 
and  injurious  quantity;  Carroll  v.  Rye  Twp.  13  N.  D.  463,  101  N.  W.  894,  holding 
a  township  is  not  liable  for  loss  suffered  by  a  landowner  by  increased  flow  of 
surface  water  upon  his  land,  resulting  solely  from  improvement  of  highway  in  the 
ordinary  manner  without  negligence;  Shaw  v.  Ward,  131  Wis.  656,  111  N.  W.  671, 
11  A.  &  E.  Ann.  Gas.  1139,  holding  landowner  may  protect  his  premises  from 
surface  water  or  rid  himself  thereof  in  a  reasonable  way  even  though  conse- 
quential injuries  may  thereby  be  caused  to  other  lands. 

Cited  in  footnote  to  Champion  v.  Crandon,  19  L.  R.  A.  856,  which  holds  di- 
version of  surface  water  by  changing  grade  of  highway  not  actionable. 

Cited  in  notes  (6  L.  R.  A.  450)  right  to  use  and  improve  one's  property;  (8 
L.  R.  A.  202)  upper  owner  cannot  vary  flow  to  injury  of  lower  owner;  (8  L.  R. 
A.  277)  prescriptive  right  to  flow  of  water;  (13  L.  R.  A.  395)  embankment  must 
not  occasion  injury  to  others;  (21  L.  R.  A.  602,  603)  casting  down  surface 
water;  (85  Am.  St.  Rep.  716,  718,  727)  on  right  of  land  owner  to  accelerate 
or  diminish  flow  of  water  to  or  from  lands  of  another. 

Distinguished  in  Missouri  P.  R.  Co.  v.  Renfro,  52  Kan.  244,  39  Am.  St.  Rep. 
344,  34  Pac.  802,  from  cases  where  railroad  companies  constructed  ditches  for 
drainage  purposes  only. 

Criticized  in  Sheehan  v.  Flynn,  59  Minn.  443,  26  L.  R.  A.  634,  61  N.  W.  462, 
stating  distinction  between  cases  where  improvement  is  made  for  drainage,  and 
where  drainage  is  incidental,  not  well  founded. 

6  L.  R.  A.  576,  HANCOCK  v.  YADEN,  121  Ind.  366,  16  Am.  St.  Rep.  396,  23 

N.  E.  253. 
Statutory  restriction  of  freedom  of  contract. 

Cited  in  Opinion  of  the  Justices,  163  Mass.  591,  28  L.  R.  A.  345,  40  N.  E.  713, 
holding  statute  requiring  manufacturers  to  pay  wages  weekly,  constitutional; 
Harbison  v.  Knoxville  Iron  Co.  103  Tenn.  446,  56  L.  R.  A.  321,  76  Am.  St.  Rep. 
682,  53  S.  W.  955,  holding  act  requiring  redemption  in  cash  at  face  value  of 
evidences  of  indebtedness  issued  for  wages,  constitutional;  State  v.  Peel  Splint 
Coal  Co.  36  W.  Va.  825,  17  L.  R.  A.  392,  15  S.  E.  1000,  holding  act  requiring 
payment  of  miners  according  to  weight  of  coal  before  screening,  constitutional; 
Com.  v.  Brown,  8  Pa.  Super.  Ct.  355,  43  W.  N.  C.  75,  holding  act  requiring 
weighing  of  bituminous  coal  before  screening,  unconstitutional;  International 
Text-Book  Co.  v.  Weissinger,  160  Ind.  354,  65  L.  R.  A.  601,  98  Am.  St.  Rep.  334, 


6  L.R.A.  576]  L.  R.  A.  CASES  AS  AUTHORITIES.  1136. 

65  N.  E.  521,  sustaining  statute  prohibiting  assignment  of  future  wages;  State 
ex  rel.  Zillmer  v.  Kreutzberg,  114  Wis.  543,  58  L.  R.  A.  754,  91  Am.  St.  Rep. 
934,  90  N.  W.  1098,  holding  statute  forbidding  discharge  of  employee  because 
member  of  labor  union,  unconstitutional;  Wortman  v.  Montana  C.  R.  Co.  22 
Mont.  279,  56  Pac.  316,  holding  contract  provision  waiving  right  of  appeal  to 
courts,  void;  State  v.  Haun,  61  Kan.  167,  47  L.  R.  A.  376,  59  Pac.  340  (dissent- 
ing opinion),  majority  holding  statute  prohibiting  contracts  to  pay  wages  in 
other  than  money,  unconstitutional ;  Com.  v.  Perry,  155  Mass.  125,  14  L.  R.  A. 
328,  31  Am.  St.  Rep.  5<°3,  28  N.  E.  1126  (dissenting  opinion),  majority  holding 
statute  prohibiting  withholding  any  part  of  wages  for  imperfections  in  weav- 
ing, unconstitutional;  Seelyville  Coal  &  Min.  Co.  v.  McGlosson,  166  Ind.  566,  117 
Am.  St.  Rep.  396,  77  N.  E.  1044,  9  A.  &  E.  Ann.  Cas.  234,  holding  that  pro- 
vision for  payment  of  wages  in  lawful  money  is  valid;  Knight  &  J.  Co.  v.  Miller, 
172  Ind.  44,  87  N.  E.  823,  holding  valid  act  prohibiting  contracts  and  combin- 
ations in  restraint  of  trade;  McGuire  v.  Chicago,  B.  &  Q.  R.  Co.  131  Iowa,  366, 
33  L.R.A.  (N.S.)  719,  108  N.  W.  902,  holding  valid  statute  imposing  upon  rail- 
way companies'  liability  for  negligence  of  fellow  servants  regardless  of  any  con- 
tract it  may  make  with  its  employees;  Mutual  Loan  Co.  v.  Martell,  200  Mass. 
487,  —  L.R.A.(]ST.S.)  — ,  128  Am.  St.  Rep.  446,  86  N.  E.  916,  holding  valid  statute 
restricting  the  assignment  of  wages  earned  in  the  future;  Shortall  v.  Puget  Sound 
Bridge  &  Dredging  Co.  45  Wash.  295,  122  Am.  St.  Rep.  899,  88  Pac.  212,  holding 
constitutional  act  making  wages  payable  in  money  forthwith  upon  completion  of 
labor  notwithstanding  agreement  for  postponement  of  payment;  Atlantic  C'nast 
Line  R.  Co.  v.  Beazley,  54  Fla.  426,  45  So.  761,  on  right  to  contract  as  being 
subject  to  regulation  by  statute  for  which  purpose  reasonable  classification  may 
be  made. 

Cited  in  notes  (14  L.  R.  A.  326)  on  statutory  restrictions  on  contracts  be- 
tween master  and  servant;  (28  L.  R.  A.  344)  on  validity  and  effect  of  statutes 
regulating  time  of  payment  of  wages;  (28  L.  R.  A.  274)  on  validity  and  effect 
of  statutes  requiring  wages  to  be  paid  in  lawful  money;  (37  Am.  St.  Rep.  213)  on 
statute  regulating  relations  of  master  and  servant;  (62  Am.  St.  Rep.  177,  178) 
on  protection  of  corporations  from  special  and  hostile  legislation;  (122  Am. 
St.  Rep.  907)  on  constitutionality  of  statutes  regulating  time  and  method  of 
payment  of  wages. 

Distinguished  in  Leep  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  58  Ark.  426,  23  L.  R. 
A.  271,  41  Am.  St.  Rep.  109,  25  S.  W.  75,  holding  statute  abridging  right  to 
contract  to  labor  with  period  of  credit  for  payment,  unconstitutional. 

Disapproved  in  State  v.  Missouri  Tie  &  Timber  Co.   181  Mo.  557,  65  L.R.A. 
601,  103  Am.  St.  Rep.  614,  80  S.  W.  933,  2  A.  &  E.  Ann.  Cas.  119,  holding  uncon- 
stitutional  act   making   it  misdemeanor   for   corporation  not  engaged  in  public 
business  to  pay  its  employees  in  other  than  money. 
Class  legislation. 

Cited  in  State  v.  Indiana  &  I.  S.  R.  Co.  133  Ind.  78,  18  L.  R.  A.  506,  32  N.  E. 
817,  holding  act  requiring  train  bulletin  posted  at  passenger  depots  having  tele- 
graph office,  constitutional;  Duckwall  v.  Jones,  156  Ind.  686,  58  N.  E.  105(5, 
holding  statute  authorizing  allowance  of  attorney's  fees  on  foreclosure  of  me- 
chanic's lien,  constitutional;  Branson  v.  Studabaker,  133  Ind.  151,  33  N.  E.  98, 
holding  act  providing  for  transfer  of  cases  from  Supreme  to  appellate  court 
docket,  making  general  classification,  valid;  State  v.  Peel  Splint  Coal  Co.  36 
W.  Va.  854,  17  L.  R.  A.  402,  15  S.  E.  1000  (dissenting  opinion),  majority 
holding  act  forbidding  payment  of  wages  by  persons  engaged  in  trade  or  busi- 
ness in  scrip  not  redeemable  in  money,  constitutional ;  Morris  v.  Powell,  125 
Ind.  306,  9  L.  R.  A.  336,  25  N.  E.  221  (dissenting  opinion),  majority  holding  act 


1137  L.  E.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  576 

requiring  registration  of  voters  absenting  themselves  from  state,  or  not  re- 
siding in  any  one  county  for  six  months  before  election,  unconstitutional;  State 
v.  Richcreek,  167  Ind.  224,  5  L.R.A.(X.S.)  879,  119  Am.  St.  Rep.  491,  77  X.  E. 
1085,  10  A.  &  E.  Ann.  Gas.  899,  holding  valid  act  regulating  banking  which 
provides  that  not  more  than  one  third  of  the  capital  of  any  bank  shall  be  in- 
vested in  real  estate  furniture  and  fixtures;  Chandler  Coal  Co.  v.  Sama,  170  Ind. 
629,  85  X.  E.  341,  holding  valid  act  regulating  coal  mines  though  by  its  terms 
made  applicable  only  to  mines  employing  more  than  ten  men;  Johnson  v.  Spartan 
Mills,  68  S.  C.  361,  47  S.  E.  695,  1  A.  &  E.  Ann.  Cas.  409,  holding  statute  com- 
pelling payment  of  wages  in  money  at  option  of  employee  constitutional  though 
agricultural  contracts  are  specifically  exempted. 

Cited  in  footnotes  to  Braceville  Coal  Co.  v.  People,  22  L.  R.  A.  340,  which  holds 
unconstitutional,  statute  requiring  weekly  payment  of  wages  by  specified  cor- 
porations; Frorer  v.  People,  16  L.  R.  A.  492,  which  holds  prohibition  against 
employers  in  certain  kinds  of  business  selling  goods  to  employees  unconstitu- 
tional. 

Cited  in  notes  (6  L.  R.  A.  622)  on  validity  of  class  legislation;  (14  L.  R.  A. 
582)  on  constitutional  equality  of  privileges  and  immunities;  (25  Am.  St.  Rep. 
881)  on  14th  amendment  as  to  special  privileges,  burdens  and  restrictions. 

Distinguished  in  Dixon  v.  Poe,  159  Ind.  499,  60  L.  R.  A.  311,  95  Am.  St.  Rep. 
309,  65  X.  E.  518,  holding  act  requiring  redemption  in  money  of  tokens  issued 
by  merchants  to  employees  in  coal  mine  assigning  wages,  invalid  class  legisla- 
tion. 

Disapproved  in  Johnson  v.  Goodyear  Min.  <jo.  127  Cal.  18,  47  L.  R.  A.  344,  78 
Am.  St.  Rep.  17,  59  Pac.  304,  holding  act  giving  employees  lien  on  property  of 
corporations  failing  to  pay  wages  monthly,  unconstitutional;  State  v.  Loomis, 
115  Mo.  320,  21  L.  R.  A.  795,  22  S.  W.  350,  holding  statute  prohibiting  em- 
ployers engaged  in  manufacturing  or  mining  from  paying  wages  in  orders  not 
redeemable  in  cash,  unconstitutional. 
Scope  of  legislative  powers. 

Cited  in  State  ex  rel.  Geake  v.  Fox,  158  Ind.  129,  56  L.  R.  A.  895,  63  N.  E. 
19,  holding  legislative  power  restricted  only  by  state  and  Federal  Constitutions, 
and   laws   and   treaties   pursuant   thereto. 
Discretionary    exercise    not    reviewable    by    courts. 

Cited  in  State  ex  rel.  Clark  v.  Haworth,  122  Ind.  467,  7  L.  R.  A.  242,  23  N.  E. 
946.  holding  courts  cannot  control  discretion  of  legislature  in  prescribing  course 
of  study  and  books  used  in  public  schools;  State  ex  rel.  Terre  Haute  v.  Kolsem, 
130  Ind.  442.  14  L.  R.  A.  570,  29  N.  E.  595,  holding  legislature  sole  judge  of 
necessity  for  special  law;  State  ex  rel.  Harrison  v.  Menaugh,  151  Ind.  266,  43 
L.  R.  A.  411,  51  N.  E.  117,  holding  act  changing  time  of  electing  township  trus- 
tees valid. 
I^esrislative  power  not  exercisable  by  courts. 

Cited  in  Forsyth  v.  Hammond,   18  C.  C.  A.   179,  34  U.  S.  App.  552,  71   Fed. 
446,    holding   order    of    commissioners    enlarging    municipal    boundaries    not   re- 
viewable  by  court. 
Contracts   deemed   made   with   reference   to   law. 

Cited  in  Farmers'  Loan  &  T.  Co.  v.  Canada  &  St.  L.  R.  Co.  127  Ind.  253,  II 
L.  R.  A.  74(i.  -2(>  X.  K.  784.  holding  law  deemed  part  of  every  contract;   Bell  v. 
Hiner.  16  Ind.  App.  188,  44  X.  E.  576,  holding  laws  preferring  labor  liens  deemed 
to  enter  into  mortgage. 
Kit:  lit    of    creditor    to    cash    payment. 

Cited  in  Born  v.  First  Xat.  Bank,  123  Ind.  81,  7  L.  R.  A.  444,  18  Am.  St.  Rep. 
L.E.A.  Au.  Vol.  I.— 72. 


6  L.R.A.  576]  L.  R.  A.  CASES  AS  AUTHORITIES.  1138 

312,  24  N.  E.  173,  holding  in  absence  of  express  agreement  acceptance  of  cer- 
tified check  not  payment;  Combs  v.  Bays,  19  Ind.  App.  265,  49  N.  E.  358,  hold- 
ing promissory  note,  in  absence  of  agreement,  not  payment  of  debt;  Vansickle 
v.  Furgeson,  122  Ind.  451,  23  N.  E.  858,  holding  money  payment  of  wages  re- 
quired where  agreement  to  contrary  void  for  indefiniteness;  Farmers  Loan  & 
T.  Co.  v.  Canada  &  St.  L.  R.  Co.  127  Ind.  258,  11  L.  R.  A.  744,  26  N.  E.  784, 
holding  money  demandable  where  bonds  agreed  to  be  taken  in  payment  not 
tendered. 
Accord  and  satisfaction,  TV  lint  is. 

Cited  in  Henes  v.  Henes,  5  Ind.  App.  106,  31  N.  E.  832,  holding  payment  of 
part  no  consideration  for  agreement  to  release  whole  debt;  Jennings  v.  Dur- 
flinger,  23  Ind.  App.  678,  55  N.  E.  979,  holding  acceptance  of  check  "in  full" 
for  less  than  sum  due  not  accord  and  satisfaction. 

Cited  in  note  (1  Eng.  Rul.  Cas.  400)  on  unexecuted  accord  as  to  satisfaction. 
Payment  in  money. 

Cited  in  Goshorn  v.  People's  Nat.  Bank,  32  Ind.  App.  430,  102  Am.  St. 
Rep.  248,  69  N.  E.  185,  on  duty  of  bank  to  pay  depositor  in  money. 

6  L.  R.  A.  579,  STATE  ex  rel.  CORWIN  v.  INDIANA,  &  O.  OIL,  GAS  &  MIN. 

CO.  120  Ind.  575,  2  Inters.  Com.  Rep.  758,  22  N.  fe.  778. 
Regulation  of  interstate  commerce. 

Followed  without  discussion  in  Avery  v.  Indiana  &  O.  Oil,  Gas  &  Min.  Co.  120 
Ind.  600,  22  N.  E.  781,  and  Benedict  v.  Columbus  Constr.  Co.  49  N.  J.  Eq.  28, 
23  Atl.  485. 

Cited  in  Manufacturers  Gas  &  Oil  Co.  v.  Indiana  Natural  Gas  &  Oil  Co.  155 
Ind.  546,  53  L.  R.  A.  135,  footnote,  p.  134,  58  N.  E.  706,  holding  statute  pro- 
hibiting transportation  of  natural  gas  out  of  state,  unconstitutional;  Miller  v. 
Goodman,  91  Tex.  43,  40  S.  W.  718,  holding  statute  forbidding  foreign  corpo- 
ration to  maintain  suit  on  claim  except  where  papers  filed  at  time  of  origin  of 
claim,  unconstitutional;  Kansas  Natural  Gas  Co.  v.  Haskell,  172  Fed.  564, 
holding  that  the  state  cannot  prohibit  the  transportation  of  natural  gas  be- 
yond its  borders;  Haskell  v.  Cowhan,  109  C.  C.  A.  235,  187  Fed.  408,  holding  that 
statute  preventing  use  of  pipe  lines  across  highways  and  so  preventing  trans- 
portation of  gas  to  points  outside  state  is  unconstitutional;  West  v.  Kansas 
Natural  Gaa  Co.  221  U.  S.  256,  55  L.  ed.  726,  35  L.R.A.(N.S.)  1207,  31  Sup.  Ct. 
Rep.  564,  holding  that  statute  prohibiting  transportation  of  gas  to  points  outside 
of  state  is  unconstitutional;  Ex  parte  Massey,  49  Tex.  Crim.  Rep.  64,  122  Am.  St. 
Rep.  184,  92  S.  W.  1086,  holding  unconstitutional  state  law  interfering  with  in- 
terstate commerce  in  intoxicating  liquors. 

Cited  in  footnotes  to  Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.  12  L.  R.  A. 
<552,  which  holds  state  regulation  of  pressure  of  natural  gas  in  pipes  within  state 
not  unlawful  regulation  of  commerce;  Stockton  v.  Powell,  15  L.  R.  A.  42,  which 
holds  state  improvement  of  navigable  water  entirely  within  state  not  interfer- 
ence with  commerce;  Bagg  v.  Wilmington,  C.  &  A.  R.  Co.  14  L.  R.  A.  596,  which 
holds  act  compelling  shipment  of  freight  within  specified  time  not  interference 
with  commerce;  Lafarier  v.  Grand  Trunk  R.  Co.  17  L.  R.  A.  Ill,  which  holds 
«tate  statute  giving  ticket  holder  stopover  rights  not  applicable  outside  of  state. 

Cited  in  notes  (13  L.R.A.  687)  on  constitutionality  of  state  laws  imposing 
taxes  or  penalties  on  immigration;  (22  Am.  St.  Rep.  440)  on  legislative  control 
over  foreign  corporations;  (27  Am.  St.  Rep.  558)  on  state  regulation  of  inter- 
state commerce. 

Distinguished  in  Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.  128  Ind.  576,  12 


1139  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  584 

L.  R.  A.  655,  3  Inters.  Com.  Rep.  616,  28  N.  E.  76,  holding  regulation  of  gas 
pressure  in  transportation  pipes  valid  police  measure;  State  v.  Geer,  61  Conn. 
152,  13  L.  R.  A.  806,  3  Inters.  Com.  Rep.  734,  22  Atl.  1012,  holding  statute 
prohibiting  killing  of  game  birds  for  purpose  of  conveying  same  out  of  state, 
valid;  McCarter  v.  Hudson  County  Water  Co.  70  N.  J.  Eq.  710,  14  L.R.A.(N.S.) 
205,  118  Am.  St.  Rep.  754,  65  Atl.  489,  10  A.  &  E.  Ann.  Gas.  116,  holding  valid 
statute  prohibiting  the  abstraction  of  fresh  water  running  in  a  natural  stream 
for  transportation  beyond  the  boundaries  of  the  state. 
Property  in  KJI*. 

Cited  in  People's  Gas  Co.  v.  Tyner,  131  Ind.  280,  16  L.  R.  A.  444,  31  Am.  St. 
Rep.  433,  31  N.  E.  59,  holding  party  entitled  to  all  gas  flowing  from  well  though 
coming  in  part  from  neighbor's  land;  Townsend  v.  State,  147  Ind.  628,  37  L.  R. 
A.  298,  62  Am.  St.  Rep.  477,  47  N.  E.  19,  holding  statute  prohibiting  waste  of 
natural  gas  valid  police  regulation,  though  limiting  property  right;  Ohio  Oil 
Co.  v.  Indiana,  177  U.  S.  205,  44  L.  ed.  738,  20  Sup.  Ct.  Rep.  576,  holding  stat- 
ute requiring  confinement  of  oil  or  gas  within  two  days  after  struck,  constitu- 
tional; Richmond  Natural  Gas  Co.  v.  Enterprise  Natural  Gas  Co.  31  Ind.  App. 
231,  66  N.  E.  782,  denying  injunction  against  use  of  pumps  not  increasing  nat- 
ural flow  of  gas  from  well;  Federal  Oil  Co.  v.  Western  Oil  Co.  57  C.  C.  A.  429, 
121  Fed.  675,  holding  that  oil  and  gas  lease  vests  inchoate  title  only. 

Cited  in  note   (16  L.  R.  A.  444)   on  natural  gas. 
Public   occupation. 

Cited  in  Kincaid  v.  Indianapolis  Natural  Gas.  Co.   124  Ind.  581,  8  L.  R.  A. 
603,  19  Am.  St.  Rep.   113,  24  N.  E.   1066,  holding  supplying  citizens  with  gas, 
public  use,  authorizing  exercise  of  power  of  eminent  domain. 
Judicial    notice. 

Cited  in  Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.  128  Ind.  564,  12  L.  R.  A. 
655,  3  Inters.  Com.  Rep.  616,  28  N.  E.  76,  taking  judicial  notice  of  inflammable 
and  explosive  nature  of  gas. 
Construction    of   statute. 

Cited  in  Logan  v.  Stogsdale,  123  Ind.  375,  8  L.  R.  A.  60,  24  N.  E.  135,  holding 
that  statute  must  be  taken  in  entirety  where  provisions  inseparable. 

6  L.  R.  A.  584,  TAYLOR  v.  EVANSVILLE  &  T.  H.  R.  CO.  121  Ind.  124,  16  Am. 

St.  Rep.  372,  22  N.  E.  876. 
Who   are    fellow    servants. 

Cited  in  Kerlin  v.  Chicago,  P.  &  St.  L.  R.  Co.  50  Fed.  186,  holding  in  Indiana 
baggage  master  coservant  with  conductor  of  another  train;  Cole  Bros.  v.  Wood, 
11  Ind.  App.  54,  36  N.  E.  1074,  holding  foreman  in  fixing  place  for  himself  and 
another  employee  to  work  causing  plaintiff's  injury,  not  a  coservant;  Dill  v. 
Marmon,  164  Ind.  511,  69  L.R.A.  168,  73  N.  E.  67,  holding  foreman  directing  the 
moving  of  cars  by  hand  to  be  a  fellow  servant. 

Cited  in  note  (75  Am.  St.  Rep.  585,  597,  601,  623,  624,  626)  one  who  is  a  vice 
principal. 

Distinguished  in  Peirce  v.  Oliver,  18  Ind.  App.  95,  47  N.  E.  485,  holding  fall- 
ing of  jackscrew  by  failure  of  foreman  to  watch  it,  negligence  of  fellow  servant; 
Justice  v.  Pennsylvania  Co.  130  Ind.  324,  30  N.  E.  303,  holding  railroad  section 
foreman  fellow  servant  in  control  of  his  men  after  their  employment;  McBride 
v.  Indianapolis  Frog  &  Switch  Co.  5  Ind.  App.  484,  32  N.  E.  579,  holding  travel- 
ing salesman  while  working  in  shops,  fellow  servant  of  mechanic  whom  he  di- 
rects to  assist  him. 
Agents  of  superior  rank  in  capacity  of  coemployee. 

Cited  in  Hodges  v.  Standard  Wheel  Co.  152  Ind.  687,  52  N.  E.  393,  holding  mas- 


6  L.R.A.  584]  L.  R.  A.  CASES  AS  AUTHORITIES.  II 40 

ter's  agent  personally  assisting  in  removing  lumber,  fellow  servant  of  employee; 
Gann  v.  Nashville,  C.  &  St.  L.  R.  Co.  101  Tenn.  384,  70  Am.  St.  Rep.  687,  47 
S.  W.  493;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Isom,  10  Ind:  App.  695,  38  N.  E. 
423,  holding  superior  while  performing  servant's  duty,  fellow  servant;  Illinois 
C.  R.  Co.  v.  Bolton,  99  Tenn.  277,  41  S.  W.  442,  holding  carrier  not  liable  to 
servant  for  negligence  of  section  foreman  while  working  as  laborer:  Stockmeyer 
v.  Reed,  55  Fed.  262,  holding  servant  cannot  recover  from  master  for  foreman's 
negligence  in  pounding  upon  rock  in  stone  quarry;  Galvin  v.  Pierce,  72  N.  H. 
89,  54  Atl.  1014  (dissenting  opinion),  majority  holding  foreman  directing  oper- 
ations and  laborer  attaching  derrick  chains,  fellow  servants;  Cleveland,  C.  C.  & 
St.  L.  R.  Co.  v.  Poland,  174  Ind.  418,  92  N.  E.  165,  to  the  point  that  agent  of 
high  rank  may  be,  at  time  act  is  done  fellow  servant  of  employee  occupying 
subordinate  position;  Ohio  River  &  C.  R.  Co.  v.  Edwards,  111  Tenn.  46,  76 
S.  W.  897,  holding  sub-foreman  in  charge  of  part  of  section  crew  to  be  a  fellow 
servant  of  section  man. 

Cited  in  notes  (18  L.  R.  A.  825)  on  negligent  superiors;    (51  L.  R.  A.  581,  595r 
597,  609,  610)   on  vice  principalship  considered  with  reference  to  superior  rank 
of  negligent  servant. 
Employee    as   master's    representative. 

Cited  in  Nail  v.  Louisville,  N.  A.  &  C.  R.  Co.  129  Ind.  267,  28  N.  E.  184,  hold- 
ing agent  with  absolute  authority  and  control,  not  fellow  servant  of  employees 
under  his  command;  Bloyd  v.  St.  Louis  &  S.  F.  R.  Co.  58  Ark.  77,  41  Am.  St. 
Rep.  85,  22  S.  W.  1089,  holding  master  liable  to  servant  for  negligence,  in  giving 
orders,  of  foreman  in  charge  of  building  and  repairing  bridges;  Indiana,  I.  &  I. 
R.  Co.  v.  Snyder,  140  Ind.  653,  39  N.  E.  912,'  holding  employee  entrusted  with 
duty  of  providing  safe  appliances,  vice  principal;  Louisville,  N.  A.  &  C.  R.  Co. 
v.  Heck,  151  Ind.  308,  50  N.  E.  988,  holding  master  liable  for  death  of  train- 
man through  train  despatcher's  negligence;  Baltimore  &  0.  S.  W.  R.  Co.  v. 
\Yalker,  41  Ind.  App.  593,  84  N.  E.  730,  holding  that  in  selecting  tools  for  the 
use  of  servants,  the  foreman  acts  as  vice  principal. 

Cited  in  note   (7  L.  R.  A.  501)   on  master's  liability  for  negligent  acts  of  vice 
principal. 
—  Employee  in   charge   of  a.  branch    or   department   of   work. 

Cited  in  Clarke  v.  Pennsylvania  Co.  132  Ind.  201,  17  L.  R.  A.  812,  31  N.  E. 
808,  holding  negligence  of  employee  in  charge  of  separate  department,  negligence 
of  master;  Hoosier  Stone  Co.  v.  McCain,  133  Ind.  237,  31  N.  E.  956,  holding 
master  liable  for  negligence  of  its  superintendent  of  stone  quarry  causing  per- 
sonal injury;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Heck,  151  Ind.  306,  50  N.  E.  988, 
holding  general  superintendent  of  railroad  division,  vice  principal. 

Cited  in  note   (7  L.  R.  A.  503)   on  master's  liability  for  acts  of  agent  or  rep- 
resentative. 
Master's   duty  as   to  safety   of   servants. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Corps,  124  Ind.  428,  8  L.  R.  A.  637, 
24  N.  E.  1X)46,  and  Evansville  &  T.  H.  R.  Co.  v.  Duel,  134  Ind.  158,  33  N.  E. 
355,  holding  that  master  must  use  reasonable  care  to  provide  safe  place  and 
tools  and  'competent  servants;  Neutz  v.  Jackson  Hill  Coal  &  Coke  Co.  139  Ind. 
415.  38  N.  E.  324,  holding  master  not  liable  for  servant's  failure  to  inspect, 
set  brakes,  or  block  wheels  of  defective  cars;  Chicago  &  E.  R.  Co.  v.  Lee,  17  Ind. 
App.  219,  46  N.  E.  543,  holding  master  only  required  to  provide  reasonably  safe 
place  for  servants  to  work;  Matchett  v.  Cincinnati,  W.  &  M.  R.  Co.  132  Ind. 
342.  31  N.  E.  792,  holding  that  carrier  must  use  reasonable  care  to  provide 
safe  brakes;  Steube  v.  Christopher  &  S.  Architectural  Iron  &  Foundry  Co.  85 


1141  L.  R.  A.  CASES  AS  AUTHORITIES.  [G  L.R.A.  534 

Mo.  App.  647,  holding  that  master's  duty  to  superintend  work  cannot  be  dele- 
gated so  as  to  avoid  liability;  Baltimore  &  0.  S.  W.  R.  Co.  v.  Spaulding,  21 
Ind.  App.  328,  52  N.  E.  410,  holding  master  liable  for  allowing  iron,  negligently 
placed,  to  remain  in  scrap  bin;  Evansville  &  T.  H.  R.  Co.  v.  Holcomb,  9  Ind. 
App.  205,  36  X.  E.  39,  holding  master  liable  for  employee's  failure  to  give  notice 
of  danger  to  car  repairer;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Corps,  124  Ind.  428, 
8  L.  R.  A.  637,  24  X.  E.  1046,  holding  that  employee  must  use  reasonable  care  to 
select  competent  and  skilful  persons  for  service;  Rogers  v.  Leyden,  127  Ind.  51, 
26  X.  E.  210,  Affirming  judgment  for  personal  injury  to  servant  from  fall  of 
overhanging  mine  roof;  McLaine  v.  Head  &  D.  Co.  71  N.  H.  301,  58  L.  R.  A. 
469,  93  Am.  St.  Rep.  522,  52  Atl.  545  (dissenting  opinion),  majority  holding 
master  not  liable  for  negligence  of  foreman  in  failing  to  notify  trench  laborer  of 
dumping  of  load  of  earth;  Romona  Oolitic  Stone  Co.  v.  Shields,  173  Ind.  75,  88 
X.  E.  595,  holding  that  instructions  exempting  master  from  liability,  on  ground 
of  misuse  of  appliances  should  not  be  given  where  superintendent  was  present  and 
consented  to  use. 

Cited  in  note   (54  L.  R.  A.  101)   on  duty  to  warn  as  to  dangers  of  transitory 
class  occasionally  supervening  during  progress  of  work  as  nondelegable  duty. 
Employee   under   specific   order   to   do   special   work. 

Cited  in  Pennsylvania  Co.  v.  O'Shaughnessy,  122  Ind.  591,  23  N.  E.  675,  holding 
employee  protected  to  reasonable  extent  by  order  directing  him  to  do  special 
duty;  Brazil  Block  Coal  Co.  v.  Hoodlet,  129  Ind.  337,  27  X.  E.  741,  holding  that 
servant  may  assume  master  will  provide  safe  place,  tools  and  appliances;  Louis- 
ville, E.  &  St.  L.  Consol.  R.  Co.  v.  Banning,  131  Ind.  534,  31  Am.  St.  Rep.  443, 
31  X.  E.  187,  holding  that  servant  may  assume  master  will  use  special  care  to 
render  unusual  employment  safe;  Ft.  Wayne  v.  Patterson,  25  Ind.  App.  558,  58 
X.  E.  747,  holding  that  servant  directed  to  dig  bell  holes  may  assume  master 
has  not  made  place  unsafe;  Xorton  Bros.  v.  Xadebok,  190  111.  602,  54  L.  R.  A.  843, 
60  X.  E.  843,  holding  master  liable  to  servant  under  vice  principal's  orders,  for 
vice  principal's  negligent  act  causing  injury;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Strong, 
129  111.  App.  202,  holding  master  liable  where  foreman  ordered  servant  to  go 
between  cars  and  couple  them,  and  then  gave  signal  to  move  the  cars  whereby  the 
servant  was  injured;  Republic  Iron  &  Steel  Co.  v.  Berkes,  162  Ind.  524,  70 
X.  E.  815;  Schminkey  v.  Sinclair,  137  Iowa,  134,  114  X.  W.  612,— holding  that 
employee  ordered  to  do  special  work  does  not  assume  the  risk  of  injury  from 
the  negligence  of  the  one  ordering  him  to  do  the  work;  Consolidated  Stone  Co. 
v.  Ellis,  46  Ind.  App.  85,  91  X.  E.  1095.  holding  that  master  is  liable  for  failure 
to  give  warning  where  foreman  directed  servant  to  give  whole  attention  to 
constructing  bed  of  spalls  assuring  him  that  he  would  warn  him  of  any  danger 
from  stone  which  was  being  thrown  over  cliff  to  point  near  such  bed;  Lohinan 
v.  Swift  &  Co.  105  Minn.  154,  117  X.  \V.  418,  holding  that  foreman,  starting 
machinery  while  servant  was  in  place  of  danger  pursuant  to  the  foreman's 
order,  acted  as  vice  principal. 

Cited  in  note   (17  L.  R.  A.  607)   on  reliance  upon  orders  as  affecting  contribu- 
tory negligence  of  employee. 
Risks    of   employment. 

Cited  in  Griffin  v.  Ohio  &  M.  P.  Co.  124  Ind.  327,  24  N.  E.  888,  holding  that 
servant  digging  in  gravel  pit  assumes  risk  of  falling  of  super  stratum  of  clay ; 
Stuart  v.  Xew  Albany  Mfg.  Co.  15  Ind.  App.  196,  43  X.  E.  961,  holding  that 
servant  assumes  open  and  obvious  risks  of  his  regular  employment;  Oolitic 
Stone  Co.  v.  Ridge,  174  Ind.  568,  91  X.  E.  944,  holding  that  rule  as  to  assumption 
of  risk  does  not  apply  where  servant  is  ordered  to  uj  outside  work  and  where 
danger  is  unknown  to  him;  Inland  Steel  Co.  v.  Smith,  39  Ind.  App.  645,  75 


6  L.R.A.  584]  L.  R.  A.  CASES  AS  AUTHORITIES.  1142 

N.  E.  852,  holding  question  of  assumption  of  risk  of  injury  from  moving 
crane  which  servant  could  not  see  from  position  where  employed,  to  be  for  jury; 
Ft.  Smith  &  W.  R.  Co.  v.  Ketis,  26  Okla.  706,  110  Pac.  661,  holding  that  whether 
injury  resulted  from  risk  assumed  by  servant  or  from  master's  negligence  was 
for  jury  where  injury  resulted  from  falling  of  top  of  embankmant,  servant  having 
been  at  work  but  short  time  and  not  having  been  warned. 

Cited  in  footnotes  to  Williamson  v.  Newport  News  &  M.  Valley  Co.  12  L.  R.  A. 
297,  which  holds  brakeman  assumes  risk  of  bridge  known  to  be  too  low;  McKee 
v.  Chicago,  R.  I.  &  P.  R.  Co.  13  L.  R.  A.  817,  which  holds  risk  from  wing  fences 
at  cattle  guards  assumed  by  brakemen. 

Cited  in  note  (12  L.  R.  A.  342)  on  assumption  of  ordinary  risks  of  employment 
by  employee. 

6  L.  R.  A.  588,  KELLOGG  v.  HOWES,  81  Cal.  170,  22  Pac.  509. 

Action  on  supersedeas  bond,  in  Kellogg  v.  Howes,  93  Cal.  586,  29  Pac.  230. 
Class  legislation. 

Cited  in  State  v.  Gregory.  170  Mo.  604,  71  S.  W.  170,  holding  statute  imposing 
penalty  on  contractor  or  subcontractor  falsely  representing  where  material  pur- 
chased on  credit  is  to  be  used,  constitutional;  Merced  Lumber  Co.  v.  Bruschi,  152 
Cal.  375,  92  Pac.  844,  holding  that  attorney's  fees  cannot  be  allowed  to  one 
foreclosing  a  mechanics  lien  by  action. 
Building-  contracts;  mechanic's  lien. 

Followed  in  Davies  Henderson  Lumber  Co.  v.  Gottschalk,  81  Cal.  644,  22  Pac. 
860,  holding  contract  for  building  for  over  $1,000  not  in  writing  nor  recorded, 
void,  and  material  men  may  claim  lien  without  notifying  owner  to  stop  payments 
on  contract. 

Cited  in  Gibbs  v.  Tally,  133  Cal.  377,  60  L.  R.  A.  817,  65  Pac.  970,  holding  stat- 
utory requirement  of  bond  to  one-quarter  amount  of  building  contract,  unconsti- 
tutional; McClain  v.  Hutton,  131  Cal.  136,  63  Pac.  182,  holding  declaration  by 
material  man  on  contract  as  if  made  with  owner  instead  of  contractor,  proper: 
McDonald  v.  Hayes,  132  Cal.  495,  64  Pac.  850,  holding  extent  of  lien  governed  by 
Code  Civ.  Proc.  §  1200,  where  owner  completes  after  abandonment  by  contractor; 
Giant  Powder  Co.  v.  San  Diego  Flume  Co.  97  Cal.  266,  32  Pac.  172,  sustaining 
material  man's  lien  for  value  of  materials  furnished  before  filing  of  contract^ 
filed  within  30  days  after  acceptance  of  structure;  Clark  v.  Beyrle,  160  Cal.  31 4r 
116  Pac.  739;  Butler  v.  Ng  Chung,  160  Cal.  438,  117  Pac.  512,— holding 
that  right  of  claimants  to  enforce  liens  against  owner  depends  on  whether  or 
not  original  contractor  has  money  demand  against  owner,  where  valid  contract 
for  erection  of  building  is  filed;  Coghlan  v.  Quartararo,  15  Cal.  App.  667,  115 
Pac.  664,  holding  that  under  statute  materialman  may  obtain  lien  for  value 
of  materials  furnished  without  regard  to  original  contract  or  amount  due  there- 
under where  plans  and  specifications  referred  to  in  contract  were  not  signed  or 
filed;  Chicago  Lumber  Co.  v.  Newcomb,  19  Colo.  App.  276,  74  Pac.  786,  holding 
mechanics  lien  law  valid  though  it  makes  the  contractor  the  agent  of  the 
owner  for  the  purposes  of  the  act;  Stinson  Mill  Co.  v.  Braun,  136  Cal.  124,. 
57  L.R.A.  726,  89  Am.  St.  Rep.  116,  68  Pac.  481;  Hoffman-Marks-Co,  v.  Spires, 

154  Cal.  115,  116,  97  Pac.   152, — holding    owner    liable    under    mechanic's    lien 
law  only  to  the  amount  fixed  by  his  contract;   Stockton  Lumber  Co.  v.  Schuler, 

155  Cal.  413,  101  Pac.  307,  on  same  point. 

Cited  in  notes  (20  L.R.A.  562,  565)  on  payment  to  contractors  or  subcon- 
tractors as  affecting  lien  of  subordinate  claimants;  (14  L.R.A.(N.S.)  1038) 
on  right  of  subcontractor  or  materialman  to  personal  judgment  against  owner;. 


1143  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  594 

(39  L.R.A.  (N.S.)  869)  on  constitutionality  of  statute  making  owner  liable  to 
laborers  or  materialraen  because  of  noncompliance  with  provisions  for  their 
protection. 

Distinguished  in  Hampton  v.  Christensen,  148  Cal.  735,  84  Pac.  200,  holding 
that   owner   may   deduct  from   contract   price,    items    included   in   the   contract, 
but  which  he  was  compelled  to  furnish,  and  such  deduction  applies  to  amount 
of  mechanic's  liens. 
Necessity    of    recording:    contract. 

Cited  in  McClain  v.  Hutton,  131  Cal.  144,  63  Pac.  182,  holding  personal  judg- 
ment against  owner  on  unrecorded  contractor's  contract,  not  proper;  Laidlaw  v. 
Ma  rye,  133  Cal.  173,  65  Pac.  391,  holding  terms  of  building  contract,  void  for 
failure  to  record,  control  recovery  of  contractor  in  assumpsit;  Barker  v.  Doherty, 
97  Cal.  12,  31  Pac.  1117,  holding  building  contract,  void  because  unrecorded,  ad- 
missible in  evidence  to  determine  whether  lien  was  filed  before  building's  comple- 
tion; Butterworth  v.  Levy,  104  Cal.  510,  38  Pac.  897,  holding  record  of  insufficient 
memorandum  of  building  contract  does  not  affect  lienor's  right  to  proceed  as 
though  it  were  unrecorded;  Rebman  v.  San  Gabriel  Valley  Land  &  W.  Co.  95 
Cal.  395,  30  Pac.  564,  holding  that  unrecorded  building  contract  is  not  conclusive 
evidence  of  reasonable  value  of  labor  and  materials  furnished  under  it;  Baker 
v.  Lake  Land  Canal  &  Irrig.  Co.  7  Cal.  App.  483,  94  Pac.  773,  holding  that 
where  contract  is  for  more  than  $1000  and  is  not  recorded  nor  in  writing,  the 
work  done  for  contractors  must  be  considered  as  done  at  the  personal  instance 
of  the  owners. 

Distinguished   in  Maher   v.   Shull,   11    Colo.   App.   327,   52   Pac.   1115,  holding 
failure  to  record  contract  to  convey  interest  in  mining  claim  upon  completion 
of  certain  development  work,  not  give  employees  of  promisee's  contractor  lien  on 
property. 
Conclnsiveness   of  judgments. 

Cited  in  note  (15  Am.  St.  Rep.  143)  on  conclusiveness  of  judgments  in  ap- 
pellate courts. 

6  L.  R.  A.  591,  DONOVAN  v.  JTJDSON,  81  Cal.  334,  22  Pac.  682. 
Performance  of  condition  precedent. 

Cited  in  Southern  P.  R.  Co.  v.  Allen,  112  Cal.  461,  44  Pac.  796,  holding  that 
vendor  agreeing  to  convey  upon  receiving  government  patent  may  sue  for  pur- 
chase money  becoming  due  on  fixed  date  without  tendering  conveyance;  Blunt  v. 
Egeland,  104  Minn.  352,  116  N.  W.  653,  holding  tender  of  performance  unneces- 
sary before  action  where  the  contract  throws  the  first  act  of  performance  upon- 
the  other  party,  and  citing  also  annotation  on  this  point. 

Cited  in  note  (12  L.  R,  A.  245)  on  rights  and  remedies  of  vendor. 

Distinguished  in  Litchfield  v.  Cowley,  34  Wash.  569,  76  Pac.  81,  holding  that 
where  one  contracting  to  purchase  land  agrees  to  pay  the  taxes  up  to  time  of 
purchase,  and  he  fails  to  do  so,  the  right  of  action  for  recovery  of  the  taxes- 
accrued  when  the  taxes  became  due. 

6  L.  R.  A.  594,  Re  JESSUP,  81  Cal.  408,  22  Pac.  742,  1028,  21  Pac.  976. 

Subsequent  hearing  of  original  case,  Jessup's  Estate,  2  Cof.  Prob.  Dec.   (Cal.) 
477,  on  second  trial  referring  to  questions  decided  by  appeal  as  law  of  case. 
Jurisdiction   to   determine   contested   heirship. 

Cited  in  Morton  v.  Morton,  62  Neb.  423,  87  N.  W.  182,  holding  that  appeal 
lies  from  order  denying  petition  for  distribution  of  personalty. 

Disapproved  in  Re  Fleming,  38  Mont.  60,  98  Pac.  648,  holding  that  question  00 


6  L.R.A.  594]  L.  R.  A.  CASES  AS  AUTHORITIES.  1144 

heirship   cannot  be   determined   in   a  proceeding  for   partial   distribution   of   an 

estate. 

When  rehearing  may  be  granted. 

Cited  in  Merchant's  Nat.  Bank  v.  Grunthal,  39  Fla.  394,  22  So.  685,  holding  that 
appellate  court  cannot  grant  rehearing  after  filing  of  its  mandate  in  court  below ; 
Noel  v.  Smith,  2  Cal.  App.  162,  83  Pac.  167,  holding  that  appellate  court  has 
power  to  stay  the  remittitur  and  grant  rehearing  after  judgment  has  been 
rendered. 
Evidence  of  parentage. 

Cited  in  Watson  v.  Richardson,  110  Iowa,  691,  80  N.  W.  407,  holding  rumors 
and  current  reports  as  to  paternity  of  claimant,  incompetent;  Re  Gird;  157  Cal. 
541,  137  Am.  St.  Rep.  131,  108  Pac.  499,  on  sufficiency  of  evidence  to  sustain 
findings  as  to  fraternity  of  child;  State  v.  Danforth,  73  N.  H.  218,  111  Am.  St. 
Rep.  600,  60  Atl.  839,  6  A.  &  E.  Ann.  Gas.  557,  holding  that  in  prosecution  for 
rape  the  child  resulting  therefrom  may  be  exhibited  to  the  jury  and  attention 
directed  to  its  resemblance  to  the  .alleged  father. 

Cited  in  footnote  to  Re  Rohrer,  50  L.  R.  A.  350,  which  holds  acknowledgment 
of  illegitimate  child  by  father's  allegation  in  sworn  pleading  sufficient,  though 
not  expressly  made,  to  admit  child  to  heirship. 

Cited  in  notes  (52  L.  R.  A.  501,  504)  resemblance  as  evidence  of  relationship; 
(35  L.  R.  A.  802,  805)  on  use  of  photographs  as  evidence;  (28  L.  R.  A.  702)  on 
right  to  compel  accused  to  exhibit  himself  for  identification;  (75  Am.  St.  Rep. 
475;  15  L.R.A.  (N.S. )  1162)  on  effect  and  collusiveness  of  photographs  in 
evidence. 
Construction  of  legitimacy  statutes. 

Cited  in  Morton  v.  Morton,  62  Neb.  426,  87  N.  W.  182,  holding  that  "adopted 
into  family"  refers  to  public  acknowledgment  and  recognition  of  child,  and  not 
to  statutory  adoption  proceedings;  Re  Gorkow,  20  Wash.  573,  56  Pac.  385,  holding 
illegitimate  entitled  to  support  during  minority  where  paternity  established  by 
written  acknowledgment;  Thomas  v.  Thomas,  64  Neb.  589,  90  N.  W.  630,  holding 
that  statutes  for  relief  of  illegitimate  children  should  have  fair  construction; 
Re  DeLaveaga,  4  Cof.  Prob.  Dec.  410,  holding  that  performance  of  acts  necessary 
under  statute  to  legitimize  child,  produces  that  result  regardless  of  intent; 
Blythe  v.  Ayres,  96  Cal.  577,  19  L.R.A.  47,  31  Pac.  915,  holding  that  legitimacy 
statutes  are  to  be  liberally  construed;  Re  DeLaveaga,  4  Cof.  Prob.  Dec.  (Cal.) 
434,  holding  that  when  legitimacy  of  child  is  once  established  subsequent  acts 
cannot  affect  such  status;  Re  Blythe,  4  Cof.  Prob.  Dec.  129,  on  proof  of  parentage 
under  statute;  Ex  parte  Hayes,  98  Cal.  551,  21  L.R.A.  387,  33  Pac.  337  (dis- 
senting opinion),  on  meaning  of  liberal  construction  of  statute. 

Distinguished  in  Miller  v.  Pennington,  218  111.  225,  1  L.R.A.  (N.S.)  776,  75 
N.  E.  919,  holding  oral  acknowledgment  of  paternity  of  child  coupled  with  fact 
of  marriage  with  its  mother  sufficient  to  fix  its  legitimacy. 

Overruled  in  part  in  Re  De  Lareaga,   142  Cal.   169,  75  Pac.  790,  holding  ac- 
knowledged  illegitimate   child,   not   received   into   father's   home,   or   among   his 
kindred,  not  legitimated  by  adoption. 
Heirship  of  adopted   child. 

Distinguished  in  Bray  v.  Miles,  23  Ind.  App.  443,  54  N.  E.  446,  holding  adopted 
child  entitled  to  take  under  will  of  grandparent  in  favor  of  children's  children. 
Appellate  jurisdiction. 

Cited  in  Re  McVay,  14  Idaho,  68,  93  Pac.  28,  on  definition  of  ''appellate 
jurisdiction;"  Re  Burnette,  73  Kan.  615,  85  Pac.  575,  on  meaning  of  "appeal" 
as  affecting  appellate  jurisdiction. 


1345  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  610 

6  L.  R.  A.  601,  CHIPPEWA  VALLEY  &  S.  R.  CO.  v.  CHIGAGO,  ST.  P.  M.  &  O. 

R.  CO.  75  Wis.  224,  44  N.  W.  17,  25. 
Contract    against    public    policy. 

Cited  in  Deering  v.  Cunningham,  63  Kan.  180,  54  L.  R,  A.  412,  65  Pac.  263, 
holding  contract  for  pecuniary  consideration,  to  withdraw  opposition  to  pardon 
and  to  use  influence  in  its  favor,  invalid;  Richardson  v.  Scott's  Bluff  County,  59 
Xeb.  410,  48  L.  R.  A.  298,  80  Am.  St.  Rep.  682,  81  N.  W.  309,  holding  contract 
to  draft  appropriation  bill,  secure  introduction  and  hearing,  and  do  all  things 
needful  to  secure  passage,  for  "liberal"  contingent  compensation,  void;  Young  v. 
Thompson,  14  Colo.  App.  315,  59  Pac.  1030,  holding  contract  to  suppress  evidence, 
void;  Owens  v.  Wilkinson,  20  App.  D.  C.  71,  holding  agreement  involving  per- 
sonal solicitation  of  congressmen,  not  enforceable;  Herman  v.  Oconto,  100  Wis. 
399,  76  N.  W.  364,  holding  evidence  of  fraud,  bribery,  and  corruption  used  to  at- 
tain municipal  contract,  admissible  under  general  allegation;  McMillan  v.  Fond 
Du  Lac,  139  Wis.  381,  120  N.  W.  240,  holding  invalid  agreement  by  which  con- 
" tractor  with  city,  gave  another  contracting  firm  in  which  a  city  official  was 
interested,  valuable  concessions;  Le  Tourneux  v.  Gilliss,  1  Cal.  App.  552,  82 
Pac.  627,  holding  void  note  given  for  "lobbying"  contract. 

Cited  in  footnotes  to  Gloucester  Isinglass  &  Glue  Co.  v.  Russia  Cement  Co.  12 
L.  R,  A.  563,  which  holds  agreement  to  prevent  competition  between  corporations 
in  manufacture  of  glue  under  patent,  valid;  Brooks  v.  Cooper,  21  L.  R.  A.  617, 
which  holds  void,  contract  between  newspapers  for  alternate  selection  and  divi- 
sion of  profits  of  public  printing. 

Cited  in  notes  (12  L.  R.  A.  121)  as  to  contracts  not  binding,  on  makers;  (30 
L.  R.  A.  738)  as  to  validity  of  contract  for  services  to  procure  legislation;  (8  L. 
R.A.  497,  6  L.R.A.  615)  as  to  validity  of  contracts  against  public  policy;  (117 
Am.  St.  Rep.  521)  on  contracts,  consideration  for  which  has  partly  failed,  or 
is  partly  illegal. 

Distinguished  in  Gilmore  v.  Roberts,  79  Wis.  453,  48  N.  W.  522,  holding  chattel 
mortgage  to  payee  "or  bearer,"  not  void  because  taken  by  "bearer"  who  furnished 
the  loan,  to  evade  taxes;  Houlton  v.  Xichol,  93  Wis.  400,  33  L.  R.  A.  168,  57  Am. 
St.  Rep.  928,  67  N.  W.  715,  holding  contract  for  securing  public  lands  to  be  opened 
to  settlement  as  matter  of  right,  valid;  Chesebrough  v.  Conover,  140  N.  Y.  387,  35 
N.  E.  633,  upholding  recovery  on  contract  to  draw  legislative  bills,  explain  them, 
and  secure  their  introduction;  Dunham  v.  Hastings  Pavement  Co.  56  App.  Div. 
249,  67  N".  Y.  Supp.  632,  holding  contract  to  call  upon  and  secure  inspection  of 
pavement  by  municipal  officers,  not  invalid  per  se. 
"Lobbying." 

Cited  in  Burke  v.  Wood,  162  Fed.  537,  holding  that  "lobbying"  signifies  to 
solicit  legislators  in  the  lobby  or  elsewhere  with  the  purpose  of  soliciting  their 
votes. 

Cited  in  note  (121  Am.  St.  Rep.  740)   on  validity  of  lobbying  contracts. 
Corporation  as  person. 

Cited  in  Segnitz  v.  Garden  City  Bkg.  &  T.  Co.  107  Wis.  178,  50  L.  R.  A.  330,  81 
Am.  St.  Rep,  830,  83  N.  W.  329,  and  State  ex  rel.  Atty.  Gen.  v.  Portage  City  Water 
Co.  107  Wis.  451,  83  X.  W.  697,  holding  that  word  "person"  in  legislative  enact- 
ments includes  corporations. 

6  L.  R.  A.  610,  GIFFORD  v.  CORRIGAX,  117  X.  Y.  257,.  15  Am.  St.  Rep.  508,  22 

N.  E.  756. 
Enforcement  of  lien  or  claim  against  third   person. 

Cited  in  Xew  York  L.  Ins.  Co.  v.  Aitkins.  125  X.  Y.  070,  26  1ST.  E.  732,  holding 


6  L.R.A.  610]  L.  R.  A.  CASES  AS  AUTHORITIES.  1146 

mortgagee  entitled  to  enforce  claim  against  grantee  of  mortgagor  assuming  pay- 
ment, in  spite  of  subsequent  release  by  grantor;  Clark  v.  Howard,  150  N.  Y.  238, 
44  N.  E.  695,  holding  creditor  entitled  to  enforce  claim  against  another  creditor 
taking  conveyance  of  debtor's  property  under  guaranty  of  payment  of  debts; 
Parraga  v.  Ribon,  44  App.  Div.  96,  61  N.  Y.  Supp.  1024,  holding  creditor  entitled 
to  enforce  claim  against  party  assuming  same  in  consideration  of  mortgage  by 
debtor;  Magill  v.  Brown  Bros.  20  Tex.  Civ.  App.  676,  50  S.  W.  143,  holding  mort- 
gagee entitled  to  security  given  by  mortgagor  to  second  mortgagee  as  collateral  to 
mortgagor's  promise  to  pay  off  first  mortgage;  Binghamton  Sav.  Bank  v.  Bing- 
hamton  Trust  Co.  85  Hun,  80,  32  X.  Y.  Supp.  657,  holding  mortgagee  entitled  to 
enforce  debt  personally  against  grantee  of  separate  interest  where  deed  expressly 
assumes  payment  of  mortgage;  Cook  v.  Berrott,  50  N.  Y.  S.  R,  164,  21  N.  Y.  Supp. 
358,  holding  creditors  entitled  to  enforce  covenant  of  third  party  to  debtor,  where 
remedies  against  debtor  omitted  in  reliance  thereon;  Williams  v.  Fisher,  8  Misc. 
316,  28  N.  Y.  Supp.  739,  holding  plaintiff's  attorney  entitled  to  enforce  promise 
of  defendant  to  pay  counsel  fees,  contained  in  release  obtained  from  plaintiff 
without  attorney's  knowledge;  Glens  Falls  Gaslight  Co.  v.  Van  Vranken,  11  App. 
Div.  424,  42  N.  Y.  Supp.  339,  holding  gas  company  entitled  to  sue  on  contract 
between  city  and  sewer  contractor,  providing  for  payment  of  damages  for  injury 
to  gas  pipes;  Wil  ;n  v.  Whitmore,  92  Hun,  469,  36  N.  Y.  Supp.  550,  holding 
sureties  on  statutory  bond  of  contractor  to  municipality  liable  to  material  man; 
American  Nat.  Bank  v.  Klock,  58  Mo.  App.  345,  holding  party  taking  as  collat- 
eral, notes  secured  by  mortgages  assumed  by  grantees,  entitled  to  enforce  same 
against  grantees;  Ruohs  v.  Traders'  F.  Ins.  Co.  Ill  Tenn.  421,  102  Am.  St. 
Rep.  790,  78  S.  W.  85,  holding  re-insurer  directly  liable  to  party  insured  where 
.such  intention  appears  from  the  reinsurance  contract;  Stites  v.  Thompson,  98 
Wis.  331,  73  N.  W.  774,  holding  that  purchaser  of  mortgaged  premises  who 
assumes  the  payment  of  the  mortgage  is  personally  liable  for  the  debt  and  may 
be  sued  without  foreclosure;  Londner  v.  Perlman,  129  App.  Div.  107,  113  N.  Y. 
Supp.  420  (dissenting  opinion),  on  principle  upon  which  mortgagee  may  take 
advantage  of  agreement  between  third  parties  made  for  his  benefit;  United 
States  use  of  Bell  v.  Empire  State  Surety  Co.  114  App.  Div.  759,  100  N.  Y: 
Supp.  247,  on  obligation  to  which  a  person  is  neither  a  party  nor  a  privy  as 
giving  him  no  rights  under  common  law. 

Cited  in  notes  (7  L.  R.  A.  35)  on  personal  liability  of  vendee  assuming  encum- 
brance; (8  L.  R,  A.  317)  on  mortgagor  conveying  premises  subject  to  mortgage 
debt;  (71  Am.  St.  Rep.  185,  188,  189,  198)  on  right  of  third  person  to  sue  on 
•contract  made  for  his  benefit;  (40  L.R.A. (N.S.)  673,  676)  on  rescission  of  pur- 
chase of  realty  as  affecting  assumption  of  mortgage  or  lien. 

Distinguished  in  Coleman  v.  Hiler,  85  Hun,  551,  33  N.  Y.  Supp.  357;  Buffalo  Ce- 
ment Co.  v.  McNaughton,  90  Hun,  79,  35  N.  Y.  Supp.  453;  Street  v.  Goodale,  77 
Mo.  App.  321;  Townsend  v.  Rackham,  143  N.  Y.  522,  38  N.  E.  731,— holding 
that  beneficiary  of  promise  cannot  enforce  same  where  promisee  under  no  liabil- 
ity to  beneficiary;  Barnes  v.  Hekla  F.  Ins.  Co.  56  Minn.  42,  45  Am.  St.  Rep.  438. 
57  N.  W.  314,  holding  insured  entitled  to  sue  reinsurer  only  where  contract  of  lat- 
ter expressly  names  insured;  Watkins  v.  Reynolds,  123  N.  Y.  218,  25  N.  E.  322, 
holding  that  equitable  mortgagee  cannot  enforce  claim  against  purchaser  without 
notice  from  debtor,  assuming  other  debts,  though  notified  before  payment,  where 
purchaser  not  released  by  subrogated  creditors;  Blass  v.  Terry,  156  N.  Y.  129, 
50  N.  E.  953,  holding  presumption  that  grantee  in  recorded  deed  containing  cove- 
nant to  pay  mortgage,  assumed  debt,  rebutted  by  proof  that  grantee  is  married 
woman  acting  through  husband  and  in  fact  ignorant  of  covenant;  Albere  v.  Kings- 
fland,  37  N.  Y.  S.  R.  409,  13  N.  Y.  Supp.  794,  holding  defect  of  parties  for  want 


1147  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  617 

of  holder  of  mortgage,  in  action  by  mortgagor  against  mortgagee  for  failure  of 
latter  to  pay  same  in  pursuance  of  promise,  available  only  on  demurrer. 
Agrency. 

Cited  in  Cowen  v.  Winters,  37  C.  C.  A.  630,  96  Fed.  931,  holding  railroad  au- 
thorizing another  line  to  issue  tickets  good  over  either,  bound  by  latter's  contract. 
Delivery  of  deed. 

Cited  in  Townsend  v.  Rackham,  143  N.  Y.  523,  38  N.  E.  731,  holding  record  of 
deed  not  conclusive  evidence  of  delivery. 

«  L.  R.  A.  615,  ADAMS  COUNTY  v.  HUNTER,  78  Iowa,  328,  43  N.  W.  208. 
Compensation    of    public    officer    In    excess    of    statutory    allowance. 

Cited  in  Ryce  v.  Osage,  88  Iowa,  564,  55  N.  W.  532,  holding  promise  to  pay 
city  attorney  extra  fee  for  official  services,  void;  Council  Bluffs  v.  Waterman,  86 
Iowa,  693,  53  N.  W.  289,  holding  aldermen  required  to  act  as  board  of  equaliza- 
tion not  entitled  to  extra  compensation;  Tracy  v.  Jackson  County,  115  Iowa,  256, 
88  N.  W.  362,  holding  county  treasurer  not  entitled  to  extra  compensation  for 
extraordinary  duties  performed  in  official  capacity;  State  ex  rel.  Axen  v.  Meserve, 
58  Neb.  453,  78  N.  W.  721,  holding  county  treasurer  entitled  only  to  compensa- 
tion fixed  by  law  for  performance  of  official  duties ;  Dorsett  v.  Garrard,  85  Ga.  737, 
11  S.  E.  768,  holding  purchaser's  agreement  to  pay  commission  on  sale  by  county 
commissioner  in  performance  of  duty,  illegal;  Kollock  v.  Dodge,  105  Wis.  207,  80 
N.  W.  608  (dissenting  opinion),  majority  holding  council  may  agree  to  pay  city 
engineer  additional  compensation  for  extra  official  services;  Bay  v.  Davidson,  133 
Iowa,  690,  9  L.R.A.  (N.S.)  1018,  119  Am.  St.  Rep.  650,  111  N.  W.  25,  holding 
salary  of  councilman  fixed  by  statute  and  that  he  has  no  right  to  add  thereto  by 
profits  upon  sale  of  goods  to  the  city;  State  ex  rel.  Wiles  v.  Albright,  11  N.  D. 
30,  88  N.  W.  729,  denying  mandamus  to  compel  county  auditor  to  issue  war- 
rant for  salary  where  he  set  up  that  such  salary  was  in  excess  of  that  allowed 
by  law;  Massie  v.  Harrison  County,  129  Iowa,  281,  105  N.  W.  507,  holding  that 
money  paid  to  assistant  to  treasurer  not  authorized  by  law,  may  be  recovered; 
Power  v.  Douglass  County,  75  Neb.  735,  106  N.  W.  782,  on  compensation  of 
public  officer  being  governed  by  statute;  State  ex  rel.  Ludden  v.  Barton,  88  Neb. 
584,  130  N.  W.  260  (dissenting  opinion),  on  compensation  of  public  officer  as 
depending  wholly  upon  statute. 

Cited  in  footnote  to  Buck  v.  Eureka,  30  L.  R.  A.  409,  which  holds  void,  con- 
tract to  pay  city  attorney  other  compensation  than  salary  for  conducting  litiga- 
tion for  city. 
Contracts  against  pnblic  policy. 

Cited  in  footnotes  to  Brooks  v.  Cooper,  21  L.  R.  A.  617,  which  holds  void  con- 
tract between  newspapers  for  alternate  selection  and  division  of  profits  of  public 
printing;  Gloucester  Isinglass  &  Glue  Co.  v.  Russia  Cement  Co.  12  L.  R.  A.  563, 
which  holds  agreement  to  prevent  competition  between  corporations  in  manufac- 
ture of  glue  under  patent,  valid. 

Cited  in  notes  (12  L.  R.  A.  121)  on  contracts  not  binding  on  makers;  (6  L.  R. 
A.  602)  on  contracts  void  as  against  public  policy. 

«  L.  R.  A.  617,  CARLISLE  v.  KILLEBREW,  89  Ala.  329,  6  So.  756. 
Ownership   of   crops. 

Cited  in  Chancellor  v.  Teel,  141  Ala.  640,  37  So.  665,  holding  that  crops  raised 
on  lands  by  agent  of  owner  belongs  to  the  owner;  Wadge  v.  Kittleson,  12  N.  D. 
462,  97  N.  W.  856,  holding  trespasser  on  lands  not  entitled  to  crop  thereon  as 
against  owner  who  recovers  possession;  Hartshorne  v.  Ingels,  23  Okla.  542,  23 


6  L.R.A.  637]  L.  R.  A.  CASES  AS  AUTHORITIES.  1148: 

L.R.A.  (N.S. )  535,  101  Pac.  1045,  holding  that  one  recovering  possession  of  land 
held  adversely  is  entitled  to  matured  crop  of  standing  corn  unsevered  at  timc- 
of  recovery. 

Cited  in  note  (23  L.  R.  A.  477)  on  sale  or  mortgage  of  future  crops. 
Judgments;    how   far   conclusive. 

Cited  in  Kohn  v.  Haas,  95  Ala.  479,  12  So.  577;  Wiggins  v.  Steiner,  103  Ala. 
657,  16  So.  8,  holding  that  judgment  cannot  be  altered  after  term  save  to  correct 
mere  clerical  errors,  unless  void  on  its  face;  Carlisle  v.  Killebrew,  91  Ala.  353,  24 
Anu  St.  Rep.  915,  8  So.  355,  holding  judgment  in  ejectment  following  description 
of  land  in  declaration,  not  void  on  its  face,  because  of  uncertainty;  Lyons  v. 
Stickney,  170  Ala.  141,  54  So.  496,  to  the  point  that  where  question  of  title  arises 
collaterally,  the  record  of  recovery  in  ejectment  is  conclusive  between  same  par- 
ties, on  same  title,  as  to  question  of  possession  and  title;  Coleman  v.  Stewart, 
170  Ala.  259,  53  So.  1020,  holding  that  former  judgment  in  ejectment  fixing  in- 
terests is  conclusive  of  question  of  title  on  application  for  sale  of  land  for  par- 
tition. 

Cited  in  footnote  to  Moore  v.  Snowball,  66  L.R.A.  745,  which  holds  judgment 
for  defendants  in  trespass  to  try  title  to  land  sold  under  judgment  foreclosing 
tax  lien  and  to  set  aside  the  judgment  not  bar  to  subsequent  suit  to  set  aside 
sheriff's  sale  for  irregularities  on  equitable  terms  in  which  title  is  admitted  to 
be  in  purchaser. 

Cited  in  notes   (11  L.R.A. (N.S. )    656)    on  judgment  in  criminal  action  as  res 
judicata  in  civil  action;    (11  Eng.  Rul.  Cas.  15)  on  conclusiveness  of  judgment. 
Admissibility   of   judgment. 

Cited  in  footnote  to  State  v.  Bradneck,  43  L.  R.  A.  620,  which  holds  judgment 
of  dismissal  in  divorce  suit  for  adultery  inadmissible  in  criminal  prosecution  for 
nonsupport  of  wife. 
Appeal;    consideration    of    objections    to    evidence. 

Cited  in  Waxelbaum  v.  Bell,  91  Ala.  333,  8  So.  571,  holding  general  objection  to- 
admission  of  evidence,  without  stating  grounds,  not  available  on  appeal ;  White 
v.  Craft,  91  Ala.  142,  8  So.  420,  holding  objection  to  admissibility  of  evidence  dis- 
regarded on  appeal,  if  grounds  do  not  appear  on  face  of  record. 

6  L.  R.  A.  619,  STAUB  v.  KENDRICK,  121  Ind.  226,  23  N.  E.  79. 
Articles    included   in    baggagre. 

Cited  in  Runyan  v.  Central  R.  Co.  61  N.  J.  L.  542,  43  L.  R.  A.  287,  68  Am.  St. 
Rep.  711,  41  Atl.  367,  holding  that  passenger's  baggage  includes  rubbers,  gloves, 
and  catalogues  and  memoranda  carried  for  business  purposes  of  journey,  but  not 
package  of  nails  and  letter  file;  Wood  v.  Cunard  S.  S.  Co.  41  L.R.A.  (X.S.)  374. 
112  C.  C.  A.  551,  192  Fed.  295,  holding  that  manuscript  of  manual  on  Greek 
grammar  which  steamship  passenger  had  written,  contained  in  his  trunk  wag- 
baggage  for  loss  of  which  carrier  was  liable. 

Cited  in  footnote  to  Yazoo  &  M.  V.  R.  Co.  v.  Blackmar,  67  L.R.A.  646,  which 
holds  papers  of  employer  pertaining  to  business  of  an  insurance  agent  not  bag- 
gage of  the  latter. 

Distinguished  in  Yazoo  &  M.  Valley  R.  Co.  v.  Georgia  Home  Ins.  Co.  (Yazoo 
£  M.  Valley  R.  Co.  v.  Blackmar),  85  Miss.  13,  67  L.R.A.  648.  107  Am.  St.  Rep. 
265,  37  So.  500,  holding  that  business  papers  belonging  to  principal  and  carried 
by  agent  for  principal's  business  do  not  constitute  baggage  within  meaning  of 
carrier's  liability  for  baggage. 
Carrier's  liability  for  Ions  of  1m>ff;ne;e. 

Cited  in  notes   (6  L.  R.  A.  810)   on  duty  of  carriers  as  bailees;    (11  L.  R,  A. 


1149  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  621 

760)  on  liability  of  common  carrier  for  loss  of  baggage  (34  L.  R.  A.  138,  139) 
on  liability  of  baggage  transfer  companies;  (12  L.R.A.  397)  on  bailment;  (4 
L.R.A.  (X.S.)  1037)  on  liability  of  carrier  for  loss  of  drummer's  baggage;  (8 
L.R.A.  (X.S.)  370)  on  measure  of  damages  for  loss  or  destruction  of  manu- 
script, legal  papers,  etc;  (99  Am.  St.  Rep.  352;  37  L.  ed.  U.  S.  587)  on  liability 
for  loss  of  baggage. 
Who  are  common  carriers. 

Cited  in  footnote  to  Wade  v.  Lutcher  &  M.  Cypress  Lumber  Co.  33  L.  R.  A. 
255,  which  holds  provision  making  all  railroads  carriers  inapplicable  to  business 
corporation  operating  railroad  on  own  property. 

<3  L.  R.  A.  621,  STATE  v.  GOODWILL,  33  W.  Va.  179,  25  Am.  St.  Rep.  863,  10  S. 

E.  285. 
Class    legislation;    freedom    to   contract. 

Cited  in  Dugger  v.  Mechanics  &  T.  Ins.  Co.  95  Tenn.  259,  28  L.R.A.  800,  32 
S.  W.  5,  holding  act  regulating  payment  of  loss  under  policies  excepting  cotton 
in  bales,  valid;  State  v.  Foster,  22  R.  I.  175,  50  L.R.A.  344,  46  Atl.  833,  holding 
act  applying  to  all  itinerant  peddlers  valid;  State  v.  Garbroski,  111  Iowa.  499,  56 
L.R.A.  572,  82  Am.  St.  Rep.  524,  82  X.  W.  959,  holding  act  requiring  license 
from  all  peddlers  but  veterans  void;  Haigh  v.  Bell,  41  W.  Va.  24,  31  L.R.A.  132, 
23  S.  E.  666,  holding  act,  extending  to  all  counties  a  provision  applicable  to 
one,  is  valid;  Ruhstrat  v.  People,  185  111.  140,  49  L.R.A.  183,  76  Am.  St.  Rep. 
30,  57  N.  E.  41,  holding  that  trademark  on  label  with  national  flag  may  be  used 
for  advertising;  West  Virginia  Transp.  Co.  v.  Standard  Oil  Co.  50  W.  Va.  616, 
56  L.R.A.  808,  88  Am.  St.  Rep.  895,  40  S.  E.  591,  holding  that  oil  company  may 
•enlarge  its  business  by  buying  every  competitor;  Union  Cent.  L.  Ins.  Co.  v. 
Chowning,  86  Tex.  659,  24  L.R.A.  506,  26  S.  W.  982,  holding  act  for  payment  of 
attorneys  fees  with  penalty  on  insurer  for  delay  in  paying  losses,  valid;  Whit- 
well  v.  Continental  Tobacco  Co.  64  L.R.A.  695,  60  C.  C.  A.  297,  125  Fed.  458, 
holding  it  no  violation  of  anti-trust  act  to  decline  to  sell,  except  at  prohibitive 
prices,  to  one  who  would  not  make  exclusive  contract;  Atchison,  T.  &  S.  F.  R. 
€o.  v.  Matthews,  174  U.  S.  120,  43  L.  ed.  918,  19  Sup.  Ct.  Rep.  609  (dissenting 
opinion),  majority  holding  that  act  providing  for  attorney's  fee  in  actions 
against  railroads  for  damages  by  fire,  is  valid;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165 
U.  S.  165,  41  L.  ed.  671,  17  Sup.  Ct.  Rep.  255,  holding  act  providing  for  payment 
of  attorney's  fees  in  actions  against  railroads  for  killing  stock,  void;  Virginia 
Development  Co.  v.  Crozer  Iron  Co.  90  Va.  130,  44  Am.  Rep.  893,  17  S.  E.  806, 
holding  liens  for  supplies  to  manufacturing  companies  superior  to  deeds  of 
trust,  valid;  State  v.  Smiley,  65  Kan.  285,  69  Pac.  199  (dissenting  opinion), 
majority  sustaining  statute  prohibiting  anti-competitive,  price-controlling  trade 
agreements;  Larabee  v.  Dolley,  175  Fed.  397,  holding  state  bank  guaranty  law 
unconstitutional,  because  it  could  not  be  made  applicable  to  national  banks: 
Laurens  v.  Anderson,  75  S.  C.  65,  117  Am.  St.  Rep.  885,  55  S.  E.  136,  9  A.  & 
E.  Ann.  Cas.  1003,  holding  void  act  providing  that  confederate  soldiers  should 
l>e  exempt  from  payment  of  occupation  license  fee;  Block  v.  Schwartz,  27  Utah, 
398,  65  L.R.A.  312,  101  Am.  St.  Rep.  971,  76  Pac.  22,  1  A.  &  E.  Ann.  Ca>.  .V>0. 
holding  unconstitutional  act  making  it  misdemeanor  for  merchant  owing  debts,  to 
sell  part  or  all  of  his  stock  out  of  the  ordinary  course  of  trade  without  making  in- 
ventory and  notifying  creditors;  Phipps  v.  Wisconsin  C.  R.  Co.  133  Wis.  160, 
113  X.  W.  456,  holding  statute  permitting  the  examination  of  former  employees 
in  certain  actions  unconstitutional  where  made  applicable  only  to  former  employ- 
ees of  corporations;  De  Witt  Wire-Cloth  Co.  v.  Xew  Jersey  Wire-Cloth  Co.  16 
Daly,  531,  14  X.  Y.  Supp.  277,  holding  void  agreement  between  manufacturers 


6  L.R.A.  621]  L.  R.  A.  CASES  AS  AUTHORITIES.  1150 

fixing  minimum  price  for  sale  of  their  products;  State  v.  Leavitt,  105  Me.  82.  2(> 
L.R.A.  (N.S.)  802,  72  Atl.  875,  holding  valid  statute  forbidding  the  digging  of 
clams  at  certain  times  by  any  one  except  residents  of  the  town  in  which  the 
clam  beds  are  situated;  State  v.  Duluth  Bd.  of  Trade,  107  Minn.  544,  23  L.R.A. 
(N.S.)  128,  121  N.  W.  395,  holding  valid  rule  of  Board  of  Trade  regulating: 
methods  of  business  and  fixing  charges  made  by  its  members;  House  v.  Mayes,  22T 
Mo.  654,  127  S.  W.  305  (dissenting  opinion),  on  invalidity  of  statute  interfering- 
with  liberty  of  contract  between  persons  sui  juris  in  private  business;  Shaw  v- 
Marshalltown,  131  Iowa,  143,  10  L.R.A.(N.S.)  832,  104  N.  W.  1121,  9  A.  &  E. 
Ann.  Gas.  1039  (dissenting  opinion),  on  invalidity  of  statute  made  applicable 
only  to  certain  classes  where  there  is  no  public  necessity  for  the  classification; 
State  v.  Smiley,  65  Kan.  285,  67  L.R.A.  920,  69  Pac.  199  (Hissenting  opinion),  on 
meaning  of  "liberty"  as  used  in  constitution;  Coal  &  Coke  R.  Co.  v.  Conley,  67  W. 
Va.  211,  67  S.  E.  613  (dissenting  opinion)  ;  First  Ave.  Coal  &  Lumber  Co.  v- 
Johnson,  171  Ala.  473,  32  L.R.A.  ( N.S. )  524,  54  So.  598,— holding  that  legislature 
may  not  by  mere  enactment  make  that  a  nuisance  which  is  not  so  in  fact. 

Cited  in  footnotes  to  Anderton  v.  Milwaukee,  15  L.R.A.  830,  which  holds 
discrimination  between  lot  owners  as  to  compensation  for  change  of  street 
grade  void;  State  v.  Snow,  11  L.R.A.  355,  which  holds  regulation  for  marking 
packages  of  lard  and  substitutes,  not  violation  of  due  process  of  law. 

Cited  in  notes  (25  Am.  St.  Rep.  882)  on  14th  amendment  as  to  special  privi- 
leges, burdens  and  restrictions;  (27  Am.  St.  Rep.  564)  on  state  regulation  of 
interstate  commerce;  (43  Am.  St.  Rep.  532)  on  due  process  of  law  as  applied  to 
insane  persons;  (53  Am.  St.  Rep.  572)  on  definition  of  police  power;  (62  Am. 
St.  Rep.  169,  178,  179)  on  protection  of  corporations  from  special  and  hostile 
legislation;  (78  Am.  St.  Rep.  237,  245)  on  acts  which  legislature  may  declare 
criminal;  (117  Am.  St.  Rep.  892)  on  power  to  confer  exemptions  or  benefits  in 
consideration  of  past  services. 

Distinguished  in  Dennis  v.  Moses,  18  Wash.  592,  40  L.R.A.  314,  52  Pac.  333 
(dissenting  opinion),  majority  holding  that  statute  requiring  appraisement  be- 
fore foreclosure  could  not  be  waived  in  mortgage. 
—  Regulations   of    payment,    hours   or   conditions    of   labor. 

Cited  in  State  v.  Wilson,  7  Kan.  App.  446,  53  Pac.  371,  holding  act  regulating 
weighing  of  coal  at  mines,  valid;  Com.  v.  Brown,  8  Pa.  Super.  Ct.  355,  43  W.  N.  C. 
75,  Affirming  6  Pa.  Dist.  R,  775,  20  Pa.  Co.  Ct.  255,  28  Pittsb.  L.  J.  X. 
S.  181,  holding  act  requiring  mining  operator  to  weigh  coal  before  screening, 
invalid;  Re  House  Bill  No.  203,  21  Colo.  28,  39  Pac.  431,  holding  act  regulating 
the  weight  of  coal  at  mines,  void;  People  ex  rel.  Rodgers  v.  Coler,  166  N.  Y.  18, 
52  L.R.A.  822,  82  Am.  St.  Rep.  605,  59  N.  E.  716,  denying  power  of  legislature 
to  fix  compensation  which  cities  must  pay  for  labor;  Leep  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.  58  Ark.  421,  23  L.R.A.  270,  31  Am.  St.  Rep.  109,  25  S.  W.  75,  holding 
act  regulating  payment  of  wages  of  employees  of  railroads  and  railway  con- 
tractors, void;  S.  A.  &  A.  P.  R.  Co.  v.  Wilson,  4  Tex.  App.  Civ.  Cas.  (White  &  W.> 
574,  10  S.  E.  287,  holding  statute  imposing  penalty  on  railroads  for  failure  to 
pay  employee  within  prescribed  time,  unconstitutional;  Low  &  Rees  Printing  Co. 
41  Neb.  140,  24  L.R.A.  708,  43  Am.  St.  Rep.  670,  59  N.  W.  362,  holding  eight  hours 
law  which  excepted  farm  and  domestic  labor,  invalid;  Cleveland  v.  Clements  Bros. 
Constr.  Co.  67  Ohio  St.  222,  59  L.R.A.  782,  93  Am.  St.  Rep.  670,  65  N.  E.  885, 
holding  statute  limiting  day's  work  of  laborers  on  public  works  to  eight  hours, 
unconstitutional;  Braceville  Coal  Co.  v.  People,  147  111.  71,  22  L.R.A.  342,  37 
Am.  St.  Rep.  206,  35  N.  E.  62,  holding  act  that  companies  engaged  in  certain 
classes  of  work  should  pay  weekly  wages  invalid;  State  v.  Haun,  61  Kan.  157, 
47  L.  R.  A.  373,  59  Pac.  340,  holding  act  to  secure  payment  of  wages  to 


1251  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  621 

laborers  and  others,  invalid;  Luman  v.  Kitchens  Bros.  Co.  90  Md.  27,  46  L.  R. 
A.  396,  44  Atl.  1051,  holding  act  regulating  sale  of  goods  by  railroads  and  mining 
companies  to  employees  in  single  county,  void;  Com.  v.  Perry,  155  Mass.  122,  14 
L.  R.  A.  328,  31  Am.  St.  Rep.  533,  28  N.  E.  1126,  holding  act  forbidding  imposi- 
tion of  fine  on  weavers  for  poor  work,  invalid;  Re  Morgan,  26  Colo.  448,  47  L.  R. 
A.  65,  77  Am.  St.  Rep.  269,  58  Pac.  1071,  holding  act  regulating  hours  in  mines, 
smelting  and  ore  rediiction  works,  void;  Johnson  v.  Goodyear  Min.  Co.  127  Cal. 
13,  47  L.  R.  A.  342,  78  Am.  St.  Rep.  17,  59  Pac.  304,  holding  act  regulating  wages 
of  employes  of  corporations  void;  Ritchie  v.  People,  155  111.  104,  29  L.  R.  A.  82, 
48  Am.  St.  Rep.  315,  40  N.  E.  454,  holding  act  forbidding  employment  of  females 
in  any  factory  or  workshop,  invalid;  Frorer  v.  People,  141  111.  182,  16  L.  R.  A. 
496,  31  N.  E.  395,  holding  act  forbidding  truck  system  by  certain  classes  of 
employers,  invalid;  State  v.  Loomis,  115  Mo.  318,  21  L.  R.  A.  792,  22  S.  W.  350, 
holding  act  prohibiting  those  engaged  in  mining  and  manufacturing  from  issuing 
anything  but  lawful  money  or  negotiable  paper  in  payment  of  labor,  invalid ; 
State  v.  Julow,  129  Mo.  173,  29  L.  R.  A.  258,  50  Am.  St.  Rep.  443,  31  S.  W.  781, 
holding  act  prohibiting  discharge  of  labor  unionists,  invalid;  Low  v.  Rees  Print- 
ing Co.  41  Neb.  146,  24  L.  R.  A.  708,  43  Am.  St.  Rep.  670,  59  N.  W.  362,  holding 
laborer  has  right  to  contract  for  the  price  at  which  he  will  work;  Palmer  v. 
Tingle,  55  Ohio  St.  445,  45  N.  E.  313,  holding  act  giving  lien  to  laborers  or  ma- 
terial men  under  contract  with  agent  of  owner  or  subcontractor,  void;  State  v. 
Fire  Creek  Coal  &  Coke  Co.  33  W.  Va,  189,  6  L.  R.  A.  359,  25  Am.  St.  Rep.  891, 
10  S.  E.  288,  holding  act  prohibiting  miners  and  manufacturers  from  selling  goods 
to  employee  at  higher  rates  than  to  others,  invalid;  Dixon  v.  Poe,  159  Ind.  497, 
60  L.R.A.  310,  95  Am.  St.  Rep.  309,  65  N.  E.  518,  holding  act  requiring  redemp- 
tion in  money  of  token  issued  to  coal  miners  for  wages  assigned,  is  invalid; 
Goldfield  Mines  Co.  v.  Goldfield  Miners'  Union  Co.  159  Fed.  516;  holding  uncon- 
stitutional act  providing  that  employer  could  not  enter  into  agreement  requiring 
employee  not  to  become  a  member  of  a  labor  union;  Toney  v.  State,  141  Ala.  124, 
67  L.  R  A.  287,  109  Am.  St.  Rep.  23,  37  So.  332,  3  A.  &  E.  Ann.  Gas.  319,  holding 
unconstitutional  statute  restricting  right  of  employee  to  make  contract  for  labor 
after  abandoning  a  similar  contract :  State  v.  Missouri  Tie  &  Timber  Co.  181 
Mo.  555,  65  L.R.A.  594,  103  Am.  St.  Rep.  614,  80  S.  W.  933,  2  A.  &  E.  Ann.  Cas. 
119,  holding  invalid  act  making  it  unlawful  for  person  or  corporation  engaged 
in  private  business  to  pay  for  labor  in  other  than  lawful  money,  Jordon  v. 
State,  51  Tex.  Grim.  Rep.  539,  11  L.R.A. (N.S.)  606,  103  S.  W.  633,  14  A.  &  E. 
Ann.  Cas.  616,  holding  void  statute  making  it  unlawful  for  any  person  or  corpo- 
ration to  issue  orders  payable  in  merchandise  for  labor  performed;  Owens  v. 
State,  53  Tex.  Crim.  Rep.  108,  126  Am.  St.  Rep.  772,  112  S.  W.  1075,  holding 
occupation  tax  on  persons  taking  assignments  of  wages  not  yet  due  void  where 
not  made  applicable  to  all  persons  engaged  therein :  Hitchman  Coal  &  Coke  Co.  v. 
Mitchell,  172  Fed.  969,  holding  unlawful,  an  attempt  by  a  labor  union  to  interfere 
with  contracts  between  employer  and  employee. 

Cited  in  footnotes  to  Hancock  v.  Yaden,  6  L.R.A.  576,  which  holds  statute  pro- 
hibiting employees  of  mining  and  manufacturing  companies  contracting  to  re- 
ceive wages  in  other  than  money,  not  unjust  discrimination;  Braceville  Coal  Co. 
v.  People,  22  L.R.A.  340,  which  holds  unconstitutional,  statute  requiring  weekly 
payment  of  wages  by  specified  corporations. 

Cited  in  notes  (37  Am.  St.  Rep.  213)  on  statute  regulating  relations  of  master 
and  servant;  (122  Am.  St.  Rep.  909)  on  constitutionality  of  statutes  regulating 
time  and  method  of  payment  of  wages;  (139  Am.  St.  Rep.  869)  on  constitu- 
tionality of  statutes  relating  to  wages. 


6  L.R.A.  621  j  L.  R.  A.  CASES  AS  AUTHORITIES.  1152 

Distinguished  in  State  v.  Nelson,  52  Ohio  St.  103,  26  L.R.A.  320,  39  X.  E.  22, 
holding  act  requiring  street  car  operators  to  provide  for  well-being  of  employees, 
valid;  State  v.  Peel  Splint  Coal  Co.  36  W.  Va.  822,  17  L.R.A.  401,  15  S.  E.  1000, 
holding  act  regulating  weighing  coal  without  screening  valid;  Lawrence  v.  Rut- 
land R.  Co.  80  Vt.  388,  15  L.R.A.  (X.S.)  358,  67  Atl.  1091,  13  A.  &  E.  Ann.  Cas. 
475,  holding  valid  act  requiring  railroads  to  pay  employees  weekly  in  lawful 
money. 

6  L.  R.  A.  625,  ARMSTRONG  v.  POMEROY  NAT.  BANK,  46  Ohio  St.  512,   ].-> 

Am.  St.  Rep.  655,  22  N.  E.  866. 
Fictitious  payee. 

Followed  in  Chism  v.  First  Nat.  Bank,  96  Tenn.  649,  32  L.  R.  A.  781,  foot- 
note, p.  778,  54  Am.  St.  Rep.  863,  36  S.  W.  387,  holding  bank  liable  for  payment 
of  check  on  forged  indorsement  of  fictitious  payee  supposed  by  maker  to  be 
genuine. 

Cited  in  Building  &  Savings  Co.  v.  Bank,  3  Ohio  S.  &  C.  P.  Dec.  690,  hold- 
ing indorsement  by  third  person  of  name  of  fictitious  payee,  supposed  to  be  genu- 
ine by  maker,  forgery;  Tolman  v.  American  Nat.  Bank,  22  R.  I.  466,  52  L.  R.  A. 
879,  84  Am.  St.  Rep.  850,  48  Atl.  480,  holding  bank  paying  on  forged  name  of 
payee  liable,  although  drawer  intended  proceeds  for  person  receiving  same  who 
represented  himself  to  be  person  whose  name  he  forged;  Shipman  v.  Bank  of 
State,  126  N.  Y.  331,  12  L.  R.  A.  797,  22  Am.  St.  Rep.  821,  27  N.  E.  371,  holding 
that  only  paper  knowingly  made  payable  to  fictitious  persons  is  payable  to 
bearer;  Boles  v.  Harding,  201  Mass.  107,  87  N.  E.  481,  holding  bearer  of  check 
made  to  fictitious  payee  cannot  recover  unless  he  proves  maker  had  knowledge 
of  fiction;  Harmon  v.  Old  Detroit  Nat.  Bank,  153  Mich.  79,  17  L.R.A.  (N.S.)  514, 
126  Am.  St.  Rep.  467,  116  N.  W.  617,  holding  check  payable  to  fictitious  payee 
and  negotiated  by  maker,  valid  as  payable  to  bearer  only  where  drawer  knowingly 
draws  check  to  such  payee;  Seaboard  Nat.  Bank  v.  Bank  of  America,  51  Misc. 
107,  100  N.  Y.  Supp.  740,  holding  where  payee  of  negotiable  paper  does  not  rep- 
resent real  person,  paper  not  payable  to  bearer  unless  put  into  circulation  by 
maker  with  knowledge  thereof;  Keenan  v.  Blue,  240  111.  190,  88  N.  E.  553  (dis- 
senting opinion),  on  negotiability  of  paper  made  payable  to  fictitious  person 
when,  put  in  circulation  with  knowledge  thereof. 

Cited  in  notes  (26  L.  R.  A.  570)  on  negotiability  of  check;  (39  L.  R.  A.  426, 
429)  on  use  of  fictitious  name  as  affecting  validity  of  instrument:  (26  L.R.A. 
570)  on  negotiability  of  check  payable  to  fictitious  payee;  (39  KR.A.  426,  429)  on 
use  of  fictitious  name  as  affecting  validity  of  instrument;  (50  L.R.A.  80,  81,  83) 
as  to  who  must  bear  loss  on  check  or  bill  issued,  or  indorsed  to  imposter;  (22 
L.R.A.  ( N.S. )  501,  503 )  as  to  when  negotiable  instrument  is  deemed  payable  to 
order  of  fictitious  person  within  rule  which  regards  such  instrument  as  payable 
to  bearer. 

Distinguished  in  Crippen  v.  American  Nat.  Bank,  51  Mo.  App.  518,  and 
Meridian  Nat.  Bank  v.  First  Nat.  Bank,  7  Ind.  App.  329,  52  Am.  St.  Rep. 
450,  33  N.  E.  247,  holding  paper  good  in  hands  of  bona  fide  holder  when  maker 
supposed  person  to  whom  it  was  delivered  was  payee,  although  fictitious  name 
given. 
Payment  by  bank  to  \vronsr  party. 

Cited  in  State  ex  rel.  Boston  Woven  Hose  Co.  v.  Lewis,  4  Ohio  N.  P.  177, 
holding  county  treasurer  liable  for  payment  of  warrant  on  agent's  unauthorized 
indorsement;  J.  N.  Houston  Grocer  Co.  v.  Farmers'  Bank,  71  Mo.  App.  139. 
holding  as  against  drawer,  payments  made  by  drawee  upon  forged  indorsements 


1153  L.  R.  A.  CASES  AS  AUTHOKITIES.  [6  L.R.A.  629 


are  at  latter's  peril;  Jordan  Marsh  Co.  v.  National  Shawmut  Bank,  201 
408,  22  L.R.A.(X.S.)  250,  87  X.  E.  740,  holding  payment  of  depositor's  check  by 
drawee  bank  in  reliance  on  guaranty  by  another  bank  of  payee's  indorsinent,  which 
was  forged,  without  effort  to  detect  forgery,  neglect  of  duty  rendering  bank 
liable  to  depositor,  although  depositor  is  negligent  in  having  fraud  practised  on 
him;  Hamilton  Xat.  Bank  v.  Xye,  37  Ind.  App.  467,  117  Am.  St.  Rep.  333,  77 
X.  E.  295,  holding  unauthorized  indorsement  and  delivery  of  check  has  no  effect 
on  payee's  title;  Houser  v.  Xational  Bank,  27  Pa.  Super.  Ct.  619,  holding  bank 
liable  to  depositor  where  it  pays  check  to  one  who  fraudulently  pretends  to  be 
agent  of  person  by  whose  name  payee  is  described,  the  drawer  not  being  neg- 
ligent; McMahon  v.  German-  American  Xat.  Bank,  111  Minn.  318,  29  L.R.A.  (X.S.  ) 
67,  127  X.  W.  7,  holding  payment  of  deposit  in  bank  payable  to  minors  or  guar- 
dian to  one  not  in  fact  the  guardian  does  not  relieve  bank  from  liability  for  the 
amount;  Merrick  v.  Merrick  Xat.  Bank,  8  Ohio  X.  P.  415,  11  Ohio  S.  &  C.  P. 
Dec.  301,  on  negligence  of  bank  in  taking  draft  payable  to  firm  with  which  it  has 
had  no  dealings,  without  investigation  as  to  relation  of  one  presenting  it,  to  the 
firm. 

Cited  in  footnotes  to  First  Xat.  Bank  v.  Xorthwestern  Xat.  Bank,  26  L.  R. 
A.  289,  which  holds  genuineness  of  indorsement  not  admitted  by  drawee  accept- 
ing or  paying  check;  La  Fayette  v.  Merchants'  Bank,  68  L.R.A.  231,  which  sus- 
tains right  of  drawee  paying  draft  on  forged  indorsement  in  ignorance  of  forgery 
on  presentation  bearing  indorsement  of  collecting  bank  to  recover  back  amount  so 
paid. 

Cited  in  note  (50  L.  R.  A.  80,  81,  83)  as  to  who  must  bear  loss  on  check  or 
bill  issued  or  indorsed  to  impostor. 

Distinguished  in  Burnet  Woods  Bldg.  &  Sav.  Co.  v.  German  Xat.  Bank,  3  Ohio 
N.  P.  99,  4  Ohio  Dec.  303,  holding  that  depositor  in  business  requiring  draw- 
ing of  checks  owes  banke.r  duty  of  ordinary  care;  Central  Xat.  Bank  v.  Xational 
Metropolitan  Bank,  31  App.  D.  C.  399,  17  L.R.A.  (X.S.)  523,  holding  one  who 
cashed  checks  on  indorsement  by  payee  of  assumed  name  in  which  he  fraudulently 
obtained  it  from  maker  and  who  receives  amount  from  drawee,  cannot  be  com- 
pelled to  return  to  drawee  what  he  received,  on  discovery  of  fraud  and  return  by 
drawee  of  amount  to  drawer's  account. 

6  L.  R.  A.   629,  BOSTOX  v.  SIMMONS,   150  Mass.  461,   15  Am.   St.  Rep.  230, 

23  X.  E.  210. 
Civil'  action   in   nature   of  conspiracy. 

Cited  in  Root  v.  Rose,  6  X.  D.  580,  72  N.  W.  1022,  holding  that  conspiracy 
will  not  of  itself  transmute  nonactionable  into  actionable  torts;  More  v.  Finger, 
128  Cal.  319,  60  Pac.  933.  holding  that  conspiracy,  not  being  gist  of  action  for 
wrong,  need  not  be  proved;  Porter  v.  Mack,  50  W.  Va.  584,  40  S.  E.  459, 
holding  that  action  on  case  in  nature  of  conspiracy  has  been  substituted  for 
common-law  actions  of  conspiracy:  Bilafsky  v.  Conveyancers  Title  Ins.  Co.  102 
Ma*  s.  506,  78  X.  E.  534,  holding  where  allegations  as  to  conspiracy  are  grounded 
on  fact  that  what  is  alleged  to  have  been  done  was  done  jointly,  such  acts  are 
not  actionable  unless  actionable  had  they  been  done  by  defendants  severally  : 
Lantin  v.  Goodnow,  207  Mass.  303,  93  X.  E.  843,  holding  that  widow  and  children 
of  testator  who  adopted  fraudulent  scheme  of  testator  with  knowledge  of  its  na- 
ture and  assisted  in  carrying  it  through  for  their  benefit  are  liable  for  damage 
suffered  from  it;  Woodruff  v.  Hughes.  2  Ga.  App.  364,  58  S.  E.  551,  holding  gist 
of  action  is  tort  and  damages,  and  not  conspiracy  set  out  :  Von  ATI  v.  Magen- 
lieimer,  126  App.  Div.  262,  110  X.  Y.  Supp.  629,  holding  gist  of  action  is  damage 
L.R.A.  Au.  Vol.  I.—  73. 


6  L.R.A.  629]  L.  R.  A.  CASES  AS  AUTHORITIES.  1154 

and  averment  and  proof  of  conspiracy  is  only  important  in  order  to  join  all  de- 
fendants. 

Distinguished  in  Boonville  Nat.  Bank  v.  Blakey,  166  Ind.  450,  76  X.  E.  529, 
holding  party  who  seeks  to  maintain  bill  in  equity  on  theory  of  conspiracy  be- 
tween bankrupt  and  preferred  creditor,  joined  as  defendants,  but  proves  no  con- 
spiracy, not  entitled  to  decree,  though  he  established  cause  of  action  warranting 
judgment  at  law. 
Duty  of  person  actingr  In  position  of  trust. 

Cited  in  Alvord  v.  Cook,  174  Mass.  127,  54  N.  E.  499,  upholding  actions  to 
recover  commissions  where  brokers  for  seller  and  buyer  agreed  to  divide  com- 
missions; Land,  Log  &  Lumber  Co.  v.  Mclntyre,  100  Wis.  261,  69  Am.  St.  Rep. 
925,  75  N.  W.  969,  holding  county  supervisors  personally  liable  for  audit  of 
claims  they  have  no  right  to  audit;  Emmons  v.  Alvord,  177  Mass.  470,  59  N.  E. 
126,  holding  that  confidential  relations  make  tort  of  acts  that  would  otherwise 
not  be  so;  Revere  Water  Co.  v.  Winthrop,  192  Mass.  458,  78  N.  E.  497,  holding 
selectmen  of  town  called  on  to  act  on  proposition  to  purchase  water  plant  for 
town,  they  are  bound  in  good  faith  to  buy  at  lowest  price  and  are  personally 
liable  for  pecuniary  loss  resulting  from  correct  action  or  act  in  bad  faith. 

Cited  in  note  (2  Eng.  Rul.  Gas.  518)  on  right  of  principal  to  profits  made  and 
advantages  gained  by  agent  in  execution  of  agency. 
Recovery  from  wrongdoers. 

Cited  in  Emmons  v.  Alvord,  177  Mass.  470,  59  N.  E.  126,  holding  those  who 
assist  in  agent's  tort  jointly  liable;  Illinois  C.  R.  Co.  v.  Foulks,  191  111.  69,  60 
N.  E.  890,  holding  that  injured  person  can  take  judgment  against  which  of  tort 
feasors  he  chooses;  Emmons  v.  Alvord,  177  Mass.  470,  59  N.  E.  126,  holding 
measure  of  damages  for  tort  in  sale,  difference  between  what  owner  received 
and  what  he  ought  to  have  received;  Brack ett  v.  Perry,  201  Mass.  504,  87  N.  E. 
903,  holding  in  action  for  fraudulent  misrepresentations,  gist  of  action  is  dam- 
age wrongfully  done  plaintiff. 

Cited  in  footnote  to  Bonte  v.  Postell,  51  L.  R.  A.  187,  which  denies  joint  lia- 
bility of  different  lot  owners  for  injury  by  discharge  of  surface  water. 

6  L.  R.  A.  632,  LEONARD  v.  LEONARD,  151  Mass.  151,  21  Am.  St.  Rep.  437, 

23  N.  E.  732. 
Imprisonment    as    affecting:    marital    relation. 

Cited  in  note  (31  L.  R.  A.  519)  on  effect  of  conviction  and  sentence  of  either 
husband  or  wife  upon  marriage  relation. 
Construction   of   term   "prison." 

Cited  in  Sturtevant  v.  Com.  158  Mass.  600,  33  N.  E.  648,  holding  in  statute 
imposing  heavier  punishment  upon  person  twice  before  "committed  to  prison  in 
this  or  any  other  state,"  word  "prison"  not  limited  to  state  prison. 

6  L.  R.  A.  633,  COM.  USE  OF  ALLEGHENY  COUNTY  v.  MILLER,  131   Pa. 

118,  18  Atl.  938. 
Exercise   of  police  pofver. 

Cited  in  footnote  to  Com.  v.  Roberts,  16  L.  R.  A.  401,  which  holds  requiring 
water  closets  in  human  habitation  within  police  power. 
—  Regulation    of   sale    of   articles   of   food. 

Cited  in  Com.  v.  Hendley,  7  Pa.  Super.  Ct.  359,  28  Pittsb.  L.  J.  N.  S.  401, 
holding  restaurant  keeper  furnishing  oleomargarine  as  part  of  meal,  liable  for 
penalty. 

Cited  in  footnotes  to  State  v.  Hanson,  54  L.  R.  A.  468,  which  holds  sale  of 


1155  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  639 

unlabeled  cottolene  forbidden  by  statute  against  selling  unlabeled  imitation  of 
lard;  State  ex  rel.  Monnett  v.  Capital  City  Dairy  Co.  57  L.  R.  A.  181,  which 
sustains  statute  forbidding  sale  of  unmarked  oleomargarine;  State  v.  Myers,  35 
L.  R.  A.  844,  which  sustains  statute  requiring  oleomargarine  and  artificial  but- 
ter to  be  colored  pink;  Frost  v.  Chicago,  49  L.  R.  A.  657,  which  holds  void, 
ordinance  prohibiting  colored  netting  over  package  of  fruit,  etc.;  State  v.  Lay- 
ton,  62  L.  R.  A.  164,  which  sustains  statute  prohibiting  manufacture  or  sale  of 
baking  powder  containing  alum;  Arbuckle  v.  Blackburn,  65  L.R.A.  864,  which 
upholds  statute  prohibiting  the  coloring,  coating,  or  polishing  of  article  intended 
for  food  whereby  damage  or  inferiority  is  concealed. 

Cited  in  note  (11  L.  R.  A.  533)  on  regulation  and  prohibition  of  manufacture 
and  sale  of  oleomargarine. 

6  L.  R.  A.  636,  FRIEND  v.  PITTSBURGH,  131  Pa,  305,  17  Am.  St.  Rep.  811, 

18  Atl.  1060. 
Place    of    payment. 

Cited  in  Skinker  v.  Butler  County,  112  Mo.  337,  20  S.  W.  613,  holding  county 
may,  as  part  of  instrument,  designate  place  of  payment  outside  county;  Re 
Boyle's  Lunacy,  20  Pa.  Super.  Ct.  6,  holding  municipality  not  required  to  seek 
creditors  for  purpose  of  making  payment. 

Cited  in  note  (51  Am.  St.  Rep.  851)  on  place  of  payment  of  municipal  bonds. 
Interest. 

Cited  in  Vider  v.  Chicago,  164  111.  357,  45  N.  E.  720,  holding  municipal  cor- 
poration not  liable  for  interest  except  in  express  contract;  King  v.  Brown,  31 
Pa.  Super.  Ct.  51,  on  right  to  collect  interest  from  municipality  on  award  of 
viewers  for  damages  for  grading  street. 

6  L.  R.  A.  637,  WILLIAMS  v.  WILLIAMS,  89  Ky.  381,  12  S.  W.  760. 

Widow's    right    of    dower. 

Cited  in  notes   (18  L.R.A.  79)  on  power  of  husband  or  his  creditors  to  defeat 
wife's  right  of  dower;    (39  Am.  St.  Rep.  31)  on  time  for  assignment  of  dower. 
—  Adverse  possession. 

Cited  in  Lucas  v.  White,  120  Iowa,  738,  98  Am.  St.  Rep.  380,  95  N.  W.  209, 
holding  statute  does  not  begin  to  run  against  wife's  right  of  dower  until  death 
of  husband;  Lucas  v.  Whitacre,  121  Iowa,  253,  96  N.  W.  776,  holding  adverse 
possession  will  not  operate  to  extinguish  wife's  dower,  though  complete  as 
against  husband. 
Statute  of  limitations. 

Cited  in  Davis  v.  Brown,  98  Ky.  489,  36  S.  W.  534,  holding  action  for  con- 
tinuous breach  of  parol  contract  barred  after  lapse  of  five  years  from  date  of 
contract. 

6  L.  R.  A.  639,  WRIGHT  v.  GRIFFITH,  121  Ind.  478,  23  N.  E.  281. 
Unaccepted    offer. 

Cited  in  Pennsylvania  Co.  v.  Plotz,   125  Ind.  31,  24  N.  E.  343,  holding  mere 
proposition  or  offer  not  acted  on  or  accepted,  not  a  contract. 
Guaranty. 

Cited  in  Conduitt  v.  Ryan,  3  Ind.  App.  5,  29  N.  E.  160,  holding  words  "I 
hereby  guarantee  payment  when  due,  etc.,"  an  absolute,  continuing  guaranty; 
Shearer  v.  R.  S.  Peale  &  Co.  9  Ind.  App.  288,  36  N.  E.  455,  construing  words 
"hereby  guarantees  payment  of  amount,"  as  original  undertaking;  Lane  v. 
Mayer,  15  Ind.  App.  384,  44  N.  E.  73,  holding  guaranty,  "I  hereby  agree  to  hold 


6  L.R.A.  639]  L.  R.  A.  CASES  AS  AUTHORITIES.  1156 

myself  responsible  for,  and  agree  to  pay  for,"  original  undertaking;  Bryant  v. 
Stout.  16  Ind.  App.  393,  44  N.  E.  68,  holding  bond  conditioned  upon  faithful 
performance  of  contract  of  service  absolute,  continuing  undertaking;  Woody  v. 
Haworth,  24  Ind.  App.  637,  57  N.  E.  272,  holding  words  "I  guarantee  payment 
of  written  note  when  due,"  direct  and  absolute  engagement;  Nading  v.  McGregor, 
121  Ind.  470,  6  L.  R.  A.  687,  23  N.  E.  283,  holding  promise  to  do  what  another 
is  bound  to  do,  in  case  of  latter's  failure,  original  undertaking;  Metzger  v. 
Hubbard,  153  Ind.  192,  54  N.  E.  761,  holding  words  "I  guarantee  payment  of," 
direct  and  absolute  undertaking;  Walter  A.  Wood  Mowing  &  Reaping  Co.  v. 
Farnham,  1  Okla.  377,  33  Pac.  867,  holding  guarantor  of  promissory  note  liable 
on  maturity  without  notice  of  default;  Miller  v.  State,  35  Ind.  App.  384,  74 
N.  E.  260,  holding  where  party  furnishes  supplies,  labor  and  material  to  sub- 
contractor who  is  treated  as  debtor  until  he  absconds,  undertaking  of  contractor 
to  liquidate  indebtedness  not  original  .undertaking  but  promise  to  answer  for 
default  of  another. 

Cited  in  note   (105  Am.  St.  Rep.  524)   on  contract  of  guaranty. 
Notice    to    guarantor. 

Cited  in  Jenkins  v.  Phillips,  18  Ind.  App.  567,  48  N.  E.  651,  holding  notice  of 
advances  after  notice  of  acceptance  of  guaranty  bond  unnecessary;  Neagle  v. 
Sprague,  63  111.  App.  27,  holding  where  guarantor  would  know  that  guaranty 
would  be  accepted,  notice  unnecessary;  Sullivan  v.  Cluggage,  21  Ind.  App.  673, 
52  N.  E.  110,  holding  notice  of  default  of  principal  unnecessary  in  collateral  guar- 
anty; Closson  v.  Billman,  161  Ind.  616,  69  N.  E.  449,  holding  notice  of  accept- 
ance of  guaranty  executed  contemporaneously  with  bond  guaranteed,  unnecessary ; 
Stewart  v.  Knight  &.  J.  Co.  166  Ind.  503,  76  N.  E.  743,  holding  guarantor  not 
entitled  to  notice  of  acceptance  where  other  party  accepts  direct,  original  promise 
of  guarantor  to  pay  for  goods  sold  third  person. 

Cited  in  footnote  to  Cowan,  M.  &  Co.  v.  Roberts,  65  L.R.A.  729,  which  holds 
notice  of  acceptance  not  necessary  to  bind  one  guaranteeing  debt  with  provision 
that  guaranty  shall  remain  in  force  until  full  payment  or  discharge  in  writing. 

Cited  in  note  (16  L.R.A.  (N.S.)  356)  on  necessity  of  notice  of  acceptance  to 
bind  guarantor. 

Disapproved  in  German  Sav.  Bank  v.  Drake  Roofing  Co.   112  Iowa,   188,  51 
L.  R.  A.  761,  footnote  p.  758,  84  Am.  St.  Rep.  335,  83  N.  W.  960,  holding  notice 
of  acceptance  necessary  to  bind  guarantors  of  payment,  to  bank,  of  notes,  etc.,  to 
third  person. 
—  Continuing:   guaranty. 

Cited  in  Presbyterian  Bd.  of  Publication  &  S.  S.  Work  v.  Gilliford,  139  Ind. 
529,  38  N.  E.  404,  holding  guaranty  limited  in  amount  but  not  in  time,  con- 
tinuing guaranty;  S.  Hamill  Co.  v.  Woods,  94  Iowa,  250,  62  N.  W.  735,  holding 
parol  evidence  admissible  to  show  whether  guaranty  "to  see  that  same  is  paid 
as  if  it  was  my  debt"  is  or  is  not  continuing  guaranty;  Frost  v.  Standard  Metal 
Co.  116  111.  App.  646,  holding  guaranty  will  be  regarded  as  continuing  unless 
words  in  which  it  is  expressed  fairly  imply  that  liability  is  to  be  limited. 
Construction  of  instruments  together. 

Cited  in  Closson  v.  Billman,  161  Ind.  614,  69  N.  E.  449,  holding  bond  constru- 
able  with  contract  therein  referred  to;  Closson  v.  Billman,  161  Ind.  614,  6!) 
N.  E.  449,  holding  building  contract  and  bond  conditioned  on  construction  and 
completion  of  work  according  to  contract  should  be  construed  togetner. 


3157  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  646 

6  L.  R.  A.  641,  HERR  v.  DENVER  MILL.  &  MERCANTILE  CO.  13  Colo.  406, 

22  Pac.  770. 
Sales  —  Necessity   of   continued   change   of   possession. 

Cited  in  Baur  v.  Beall,  14  Colo.  386,  23  Pac.  345,  holding  delivery  of  personal 
property  by  vendor  reassuming  possession  as  agent  passes  no  title;  Springer 
v.  Kreeger,  3  Colo.  App.  491,  34  Pac.  269,  holding  sale  without  actual  or  con- 
structive change  of  possession  void  as  to  vendor's  creditors;  Anders  v.  Barton, 
3  Colo.  App.  327,  33  Pac.  142,  holding  bill  of  sale  without  giving  possession  of 
chattels  passes  no  title;  Allen  v.  Steiger,  17  Colo.  557,  31  Pac.  226,  holding  sale 
unaccompanied  by  delivery  and  change  of  possession  conclusively  presumed 
fraudulent. 

Cited  in  footnote  to  Feeley  v.  Boyd,  65  L.R.A.  943,  which  holds  immediate 
delivery  followed  by  actual  and  continued  change  of  possession  of  fruit  in  bins 
shown  by  purchaser  sending  representative  the  same  evening  to  take  possession, 
and  sending  man  the  next  morning  to  prepare  for  shipment. 

Cited  in  notes   (25  Am.  St.  Rep.  186;  35  L.  ed.  U.  S.  707)   on  necessity  and 
sufficiency  of  delivery  to  transfer  title. 
Right  of  person  paying:  off  encumbrance,  on  defective  security. 

Cited  in  note  (5  L.R.A.  (N.S.)  843)  on  right  of  one  advancing  money  to  pay 
off  lien  or  encumbrance  upon  security  which  proves  defective  to  be  subrogated 
thereto.  • 

6  L.  R.  A.  646,  ATCHISON,  T.  &  S.  F.  R.  CO.  v.  LINDLEY,  42  Kan.  714,  16 

Am.  St.  Rep.  515,  22  Pac.  703. 
Second  appeal  in  47  Kan.  432,  28  Pac.  201. 
Contributory    negligence;    voluntarily    assuming    position    of    danger. 

Cited  in  Ft.  Scott,  W.  &  W.  R.  Co.  v.  Sparks,  55  Kan.  295,  39  Pac.  1032,  hold- 
ing that  stock  shipper  injured  while  standing  on  top  of  car  when  in  motion, 
cannot  recover  for  injuries;  Walker  v.  Green,  60  Kan.  294,  56  Pac.  477,  holding 
that  shipper  riding  in  freight  car  cannot  recover  for  injuries  from  negligent 
handling  of  car;  Kimball  v.  Palmer,  25  C.  C.  A.  396,  42  U.  S.  App.  399,  80  Fed. 
241,  holding  shipper  injured  in  attempting  to  climb  to  top  of  box  car,  guilty  of 
contributory  negligence;  Gross  v.  South  Chicago  City  R.  Co.  73  111.  App.  222, 
holding  trespasser  riding  on  top  of  freight  car  and  injured  through  contact  with 
trolley  wire  of  electric  railway,  guilty  of  contributory  negligence;  Church  v. 
Chicago,  M.  &  St.  P.  R.  Co.  50  Minn.  220,  16  L.  R.  A.  863,  52  N.  W.  647,  holding 
bystander  assisting  in  switching  cars  at  request  of  "head  switchman,"  not  em- 
ployee, and  assumes  risk  of  position;  Kelly  v.  Tyra,  103  Minn.  180,  17  L.R.A. 
(N.S.)  342,  114  N.  W.  750,  holding  where  servant  of  one  master  has  interest 
in  work  in  any  proper  capacity  and  at  request  of  servant  of  another  undertakes 
to  assist  in  work  he  does  not  assume  risk  of  carelessness  of  latter  servant:  Win- 
ters v.  Baltimore  &  0.  R.  Co.  163  Fed.  108,  holding  one  who  climbs  to  top  of  box 
car  and  rides  there,  although  according  to  custom  known  to  foreman,  cannot 
recover  for  injury  from  derailment  where  he  would  not  have  been  injured  had 
he  remained  in  caboose;  Fischer  v.  Columbia  &  P.  S.  R.  Co.  52  Wash.  470,  100 
Pac.  1005,  holding  one  who,  fearing  he  will  not  have  time  to  reach  caboose, 
enters  engine  on  engineer's  invitation,  not  a  passenger,  nor  one  to  whom  carrier 
owed  affirmative  duty;  Winters  v.  Baltimore  &  0.  R.  Co.  100  C.  C.  A.  462,  177 
Fed.  51,  holding  where  train  is  moving  at  slow  rate  of  speed  on  switch  track, 
track  hand  being  carried  on  work  train  not  guilty  of  contributory  negligence 
as  matter  of  law  to  ride  on  top  of  cars,  where  that  is  habit  of  workmen,  and 
brakeman  and  conductor  did  not  object  thereto:  Kimball  v.  Palmer.  80  Fed.  241, 
holding  it  contributory  negligence  for  shipper  of  poultry  on  freight  train  to 


6  L.R.A.  646]  L.  R.  A.  CASES  AS  AUTHORITIES.  1158 

attempt  to  get  on  top  of  box  car  next  to  caboose  for  purpose  of  walking  to  car 
containing  his  shipment,  while  train  is  in  motion. 

Cited  in  note  (22  L.R.A.  664)  on  assumption  by  volunteer  of  risks  of  service; 
(40  L.R.A.  (X.S.)  1181)  on  liability  of  master  for  injury  to  emergency  assistant. 

Distinguished  in  Leslie  v.  Atchison,  T.  &  S.  F.  R.  Co.  82  Kan.  157,  27  L.R.A. 
(N.S. )  650,  107  Pac.  765,  holding  shipper  of  cattle  using  ticket  requiring  him 
to  remain  in  safe  place  during  movement  of  train  and  forbidding  his  getting 
on  or  off  caboose  while  train  is  in  motion,  can  recover  for  injuries  received  in 
getting  on  moving  train  at  invitation  of  conductor,  where  during  time  train  was 
standing  still  he  alighted  to  examine  stock  and  could  not  reach  caboose  after 
train  had  started,  and  boarded  cars  before  caboose  was  reached. 
Duty  not  to  -vvaiitonly  injure  another. 

Cited  in  Hendryx  v.  Kansas  City,  Ft.  S.  &  G.  R.  Co.  45  Kan.  379,  25  Pac.  893, 
holding  that  only  duty  railroad  owes  trespasser  on  train  is  not  wantonly  to  in- 
jure him;  Houck  v.  Chicago  &  A.  R.  Co.  116  Mo.  App.  570,  92  S.  \Y.  738,  holding 
master  not  answerable  for  negligent  or  wilful  tort  of  servant  outside  general 
scope  of  his  employment,  but  holding  master  liable  for  injury  to  boy  in  engine 
room  where  he  has  been  invited  there  by  engineer. 

Cited  in  note  (22  L.  R.  A.  796)  on  rights  of  person  riding  on  pass  or  contract 
for  free  passage. 

6  L.  R.  A.  653,  CORT  v.  LASSARD,  18  Or.  221,  17  Am.  St.  Rep.  726,  22  Pac. 

1054. 
Contracts   for   personal   services. 

Cited  in  notes  (11  L.  R.  A.  550)  on  special  services  for  professional  labor;  (12 
L.  R.  A.  497)  on  assignability  of  contracts  for  personal  services  requiring  special 
skill  and  knowledge;  (6  L.R.A.(N.S.)  1138,  1143,  1144)  on  enforcement  of 
contract  of  service  by  equity;  (68  Am.  St.  Rep.  762)  on  specific  performance 
of  contracts  of  actors  where  decree  cannot  be  enforced;  (6  Eng.  Rul.  Cas.  665, 
666)  on  refusal  to  enforce  specific  performance  of  contract  for  services,  the 
execution  of  which  the  court  cannot  superintend. 
Injunction  agrainst  breach  of  contract. 

Cited  in  Philadelphia  Base-Ball  Club  v.  Lajoie,  10  Pa.  Dist.  R.  314,  Reversed 
in  202  Pa.  210,  58  L.R.A.  227,  51  Atl.  793,  holding  court  would  not  restrain 
playing  of  baseball  upon  another  team,  although  player  was  expert  and  his 
withdrawal  would  weaken  team  and  affect  attendance  at  games;  Donker  &  W. 
Co.  v.  Vance,  2  111.  C.  C.  15,  holding  injunction  will  not  lie  to  restrain  breach 
of  contract  by  servant  in  leather  goods  department  of  employer's  business; 
Rabinovich  v.  Reith,  120  111.  App.  415,  holding  court  will  not  restrain  breach 
of  contract  of  employee  as  millinery  trimmer;  Columbia  College  v.  Tunberg,  64 
Wash.  21,  116  Pac.  280,  holding  that  injunction  does  not  lie  to  prevent  breach 
of  contract  to  give  personal  service  to  school  of  music  where  services  were  not 
special  or  extraordinary,  and  another  teacher  was  procured. 

Cited  in  footnotes  to  Metropolitan  Exhibition  Co.  v.  Ewing,  7  L.  R.  A.  381, 
which  holds  contract  may  be  practically  enforced  by  enjoining  breach  of  negative 
promise;  Philadelphia  Ball  Club  v.  Lajoie,  58  L.  R.  A.  227,  which  authorizes 
injunction  against  baseball  player  violating  contract  to  play  for  certain  organi- 
zation, for  specified  time,  and  meanwhile  not  play  for  other  club. 

Cited  in  notes  (7  L.  R.  A.  779;  11  L.  R.  A.  116)  on  agreements  not  specifically 
enforceable;  (8  L.  R.  A.  626)  on  right  to  specific  performance  when  remedy  at 
law  adequate;  (90  Am.  St.  Rep.  648,  649)  on  injunction  against  breach  of 
contract. 

Distinguished  in  E.  Jaccard  Jewelry  Co.  v.  O'Brien,  70  Mo.  App.  436,  holding 


1159  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  656 

that  equity  will  not  enjoin  breach  of  contract  for  services  of  salesman  of  average 
ability;  Chain  Belt  Co.  v.  Von  Spreckelsen,  117  Wis.  122,  94  N.  W.  78,  dis- 
solving preliminary  injunction  against  violation  of  contract  for  services,  where 
defendant's  answer  alleges  others  in  plaintiff's  employ  have  same  knowledge 
and  skill;  Eureka  Laundry  Co.  v.  Long,  146  Wis.  210,  212,  35  L.R.A.(X.S.) 
123,  131  N.  W.  412,  holding  that  injunction  lies  to  prevent  breach  of  contract 
as  driver  of  laundry  wagon,  which  contained  stipulation  to  effect  that  during 
such  employment  or  for  two  years  thereafter  defendant  would  not  solicit  laundry 
trade  for  others  nor  engage  in  laundry  business. 

Disapproved  in  H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  165,  6  L.R.A.(N.S.) 
1131,  109  N.  W.  483,  holding  equity  will  not  restrain  work  for  others  in  absence 
of  express  covenant  not  to  work  for  another. 
Implied   covenants. 

Cited  in  Southwest  Missouri  Light  Co.  v.  Joplin,  101  Fed.  28,  holding  grant 
of  twenty  year  electric  light  franchise  implies  covenant  not  to  compete  within 
that  time. 

6  L.  R.  A.  656,  MOAKLER  v.  PORTLAND  &  W.  VALLEY  R  CO.  18  Or.  189, 
17  Am.  St.  Rep.  717,  22  Pac.  948. 

Contributory    negligence. 

Cited  in  Benedict  v.  Minneapolis  &  St.  L.  R.  Co.  86  Minn.  228,  57  L.  R.  A. 
641,  91  Am.  St.  Rep.  345,  90  N.  W.  360,  holding  protrusion  of  passenger's  head 
beyond  side  of  car,  from  curiosity,  contributory  negligence;  Emison  v.  Owyhee 
Ditch  Co.  37  Or.  581,  62  Pac.  13,  holding  in  action  for  overflowing  lands,  plain- 
tiff's method  of  irrigation  causing  accumulation  of  water  on  low  land,  not  con- 
tributory negligence;  Carrico  v.  West  Virginia  C.  &  P.  R.  Co.  39  W.  Va.  99, 
19  S.  E.  571,  holding  protrusion  of  passenger's  arm  from  window  not  enhancing 
danger  of  injury,  does  not  affect  railroad's  liability;  Zumault  v.  Kansas  City 
Suburban  Belt  R.  Co.  175  Mo.  311,  74  S.  W.  1015,  holding  intending  passenger 
sitting  on  station  platform  where  passing  train  could  strike  him,  facing  in 
direction  opposite  from  whence  train  was  expected,  guilty  of  contributory  negli- 
gence; Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Hadley,  170  Ind.  207,  16  L.R.A.  (N.S.) 
531,  82  N.  E.  1025,  16  A.  &  E.  Ann.  Cas.  1,  holding  passenger  not  guilty  of  con- 
tributory negligence  as  matter  of  law  in  raising  window  in  car  which  is  moving 
at  high  speed,  and  protruding  arm  through  it,  whereby  it  is  injured  by  window's 
-fall;  Winters  v  Baltimore  &  O.  R.  Co.  100  C.  C.  A.  462,  177  Fed.  49,  holding 
workman  riding  on  top  of  car,  such  being  custom  and  being  with  knowledge 
and  consent  of  servants  in  charge  of  train,  the  train  moving  at  slow  rate  of 
speed,  not  guilty  of  contributory  negligence  as  matter  of  law.  when  injured  by 
derailment  of  train  from  defect  in  crossing;  Cincinnati  Traction  Co.  v.  Forrest. 
73  Ohio  St.  5,  75  N.  E.  818,  holding  contributory  negligence  is  want  of  ordinary 
care  by  person  injured  by  negligence  of  another,  concurring  with  such  negligence; 
Birsch  v.  Citizens'  Electric  Co.  36  Mont.  578,  93  Pac.  940,  holding  it  not  con- 
tributory negligence  where  hod  carrier  in  construction  of  building  while  working 
on  high  scaffolding  steps  on  mortar  board  causing  him  to  slip  whereby  he  in- 
voluntarily throws  out  his  hands  one  of  which  strikes  defendant's  highly  charged 
electric  wire,  causing  him  to  fall  to  ground;  Smith  v.  St.  Louis  Transit  Co. 
120  Mo.  App.  333,  97  S.  W.  218,  holding  passenger  on  street  car  not  guilty  of 
contributory  negligence  as  matter  of  law  in  exposing  elbow  to  slight  extent 
from  window,  or  resting  same  on  window  sill  within  car;  Memphis  Street  R. 
Co.  v.  Roe,  118  Tenn.  609,  102  S.  W.  343,  holding  plaintiff  who  drives  along 
street  car  tracks  where  he  might  have  driven  on  opposite  side  of  street  and 
been  out  of  danger,  the  night  being  dark  and  dusty  so  that  he  could  not  see 


6  L.R.A.  656]  L.  R.  A.  CASES  AS  AUTHORITIES.  1160 

for  thirty  or  forty  feet  in  front  of  him,  guilty  of  contributory  negligence  barring 
recovery;  Murphy  v.  W abash  R.  Co.  228  Mo.  149,  128  S.  W.  481  (dissenting 
opinion),  on  what  constitutes  contributory  negligence. 

Cited  in  notes   (16  L.R.A.  93)    on  passenger's  negligent  exposure  of  person  at 
car  window;    (24  Am.   St.  Rep.  761)    on   contributory  negligence  of   passenger; 
(116  Am.  St.  Rep.  722,  723)   on  negligence  of  passenger  in  projecting  a  member 
of  body  out  of  car  window. 
—  Wlien    question    for   jury. 

Cited  in  Gradert  v.  Chicago  &  N.  W.  R.  Co.  109  Iowa,  551,  80  N.  W.  559,. 
holding  contributory  negligence  of  passenger  leaving  car  to  avoid  collision,  ques- 
tion for  jury. 

6  L.  R.  A.  661,  LEATHERS  v.  JANNEY,  41  La.  Ann.  1120,  6  So.  884. 
Corporation's  right  to  sell  entire  property. 

Cited  in  Holmes  &  G.  Mfg.  Co.  v.  Holmes  &  W.  Metal  Co.  127  N.  Y.  259,  21 
Am.  St.  Rep.  448,  27  N.  E.  831,  holding  that  corporation  may,  with  stockholders' 
consent,  sell  all  its  property,  taking  stock  in  payment;  Phillips  v.  Providence 
Steam  Engine  Co.  21  R.  I.  305,  45  L.  R.  A.  562,  43  S.  E.  598,  holding  that  cor- 
poration may  dispose  of  property  by  majority  vote,  in  absence  of  fraud;  Slattery 
v.  Greater  New  Orleans  Realty  &  Development  Co.  128  La.  874,  55  So.  558,  hold- 
ing that  corporation  is  not  prohibited  by  law  from  selling  all  its  property  at 
private  sale. 

Cited  in  notes    (103  Am.  St.  Rep.  566)    on  right  of  corporation  to  sell   its 
property  for  stock  or  bonds  of  other  corporations;    (103  Am.  St.  Rep.  570)    on 
effect  of  sale  of  entire  assets  of  corporation. 
Dealings   between   corporations    having    same    person   as    director. 

Cited  in  Colorado  Fuel  &  Iron  Co.  v.  Western  Hardware  Co.  16  Utah,  11,  50 
Pac.  628,  holding  assignment  preferring  another  corporation  not  invalidated  by 
vote  of  director  common  to  both,  not  affecting  result. 

Cited  in  notes   (33  L.R.A.  789)   on  contracts  between  corporations  having  com- 
mon   directors   or   officers;     (36    L.    ed.   U.   S.    1080)    on   fiduciary    relations    of 
officers  and  their  dealings  with  corporate  property. 
Pledgees    of   stock   bound   by   stockholders'    action. 

Cited  in  Spokane  v.  Amsterdamsch  Trustees  Kantoor,  22  Wash.  178,  60  Pac. 
141,  holding  pledgees  of  stock  bound  by  action  of  shareholders  authorizing  con- 
veyance of  property;  Elyea  v.  Lehigh  Salt  Min.  Co.  45  App.  Div.  236,  60  N.  Y. 
Supp.  1050,  holding  that  pledgee  of  stock  cannot  have  transfer  of  corporate 
property  with  assent  of  record  stockholders  set  aside;  Cohen  v.  Big  Stone  Gap 
Iron  Co.  Ill  Va.  474,  69  S.  E.  359,  Ann.  Cas.  1912A,  203,  holding  that  pledgee 
of  stock  who  permits  pledger  to  vote  stock  is  estopped  by  action  of  pledger  in. 
consenting  to  sale  of  corporate  property. 

6  L.  R.  A.  663,  LEMON  v.  GRAHAM,  131  Pa.  447,  19  Atl.  48. 
Intention    of    parties. 

Cited  in  Interstate  Bldg.  &  L.  Asso.  v.  Agricola,  124  Ala.  478,  27  So.  247,  hold- 
ing that  intention  to  convey  may  be  deduced  from  deed  referred  to  in  writing  un- 
der construction. 

Cited  in  notes    (24  Am.  St.  Rep.  714;    14  Eng.  Rul.  Cas.   798)    on  intent  as 
controlling  in  construing  deed. 
Informal  instrument  transferring  title. 

Cited  in  Wisdom  v.  Reeves,  110  Ala.  431,  18  So.  13,  holding  that  assignment 
of  "within  title"  written  on  deed  passes  legal  title;  Robb  v.  New  York  &  C. 


1161  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  667 

Gas  Coal  Co.  216  Pa.  420,  65  Atl.  938,  on  right  to  consider  surrounding  circum- 
stance and  conduct  of  parties  afterward  in  determining  meaning  of  instrument 
Testing  life  estate. 

Cited  in  note  (31  Am.  St.  Rep.  28)  on  sufficiency  of  words  to  constitute 
conveyance. 

Distinguished  in  Peirce  v.  Hubbard,  48  Phila  Leg.  Int.  264,  10  Pa.  Co.  Ct.  65, 
28  W.  N.  C.  196,  holding  devise  to  daughter  "and  in  case  of  her  death  without  is- 
sue .  .  .  then  to  testator's  heirs,"  passes  life  estate. 

6  L.  R.  A.  665,  PERRY  COUNTY  v.  CONWAY  COUNTY,  52  Ark.  430,  12  S.  W. 

877. 
Legislative    power   to   impose   debt   on   municipality. 

Followed  in  Garland  County  v.  Hot  Springs  County,  68  Ark.  92,  56  S.  W.  636, 
holding  subsequent  act  making  detached  territory  liable  for  portion  of  county 
debt,  valid;  Cullman  County  v.  Blount  County,  160  Ala.  324,  49  So.  315,  up- 
holding similar  legislative  apportionment  of  cost  of  a  bridge. 

Cited  in  Re  Fremont  &  B.  H.  Counties,  8  Wyo.  22,  54  Pac.  1073,  holding  that 
provision  for  apportionment  of  indebtedness  upon  division  of  county  may  be  made 
by  general  law  passed  before  division  is  made;  Johnson  v.  San  Diego,  109  Cal. 
478,  30  L.  R.  A.  181,  42  Pac.  249,  holding  that  legislature  may  readjust  burden 
of  municipal  indebtedness  after  division  of  city  as  equities  may  suggest;  Board 
of  Education  v.  State,  64  Kan.  11,  67  Pac.  559,  sustaining  retroactive  law  requir- 
ing city  to  assume  school  bonds  issued  by  annexed  district;  Desha  County  v. 
Chicot  County,  73  Ark.  395,  84  S.  W.  625,  holding  it  valid  for  legislature  pro- 
visionally to  apportion  a  pending  liability  when  readjusting  county  boundaries 
by  annexing  and  detaching  territory;  Denver  v.  Adams  County,  33  Colo.  9,  77 
Pac.  858,  holding  legislature  on  erection  of  a  new  city  and  county  and  division 
of  the  remainder  of  the  old  county  into  two  might  apportion  the  debts  of  the 
previous  county;  State  ex  rel.  Pritchard  v.  Grefe,  139  Iowa,  31,  117  N.  W.  13, 
holding  it  lawful  for  legislature  to  unite,  on  approval  by  vote,  all  of  numerous 
city  school  districts  into  one. 

Cited  in  note   (20  Am.  St.  Rep.  678)    on  power  of  legislature  to  require  new 
counties  to  pay  proportion  of  debt  of  old  counties. 
—  To   release   claim   in    favor   of  municipality. 

Cited  in  Pearson  v.  State,  56  Ark.  154,  35  Am.  St.  Rep.  91,  19  S.  W.  499,  hold- 
ing act  releasing  treasurer  from  liability  for  county  funds  stolen  from  safe  fur- 
nished by  county,  valid. 

6  L.  R.  A.  667,  TAYLOR  v.  MILLARD,  118  N.  Y.  244,  23  N.  E.  376. 
Parol    partition. 

Cited  in  Jones  v.  Jones,  118  App.  Div.  154,  103  N.  Y.  Supp.  141,  holding 
partition  partly  in  writing  and  partly  parol  will  be  enforced  where  actually 
executed. 

Cited  in  footnote  to  Sontag  v.  Bigelow,  16  L.  R.  A.  326,  which  holds  plaintiff 
in  ejectment  cannot  establish  title  upon  parol  partition. 

Disapproved  in  effect  in  Berry  v.  Seawall,  65  Fed.  752,  holding  parol  partition 
not  vest  legal  title  in  severalty  to  alloted  shares. 
Easement   created   by   estoppel. 

Cited  in  Mattes  v.  Frankel,  157  N.  Y.  611,  68  Am.  St.  Rep.  804,  52  N.  E.  585 
(dissenting  opinion),  majority  holding  vendor  of  land  estopped  by  representations 
to  deny  right  of  way  over  his  adjoining  lot;  Baker  v.  Kenney,  145  Iowa,  645, 
139  Am.  St.  Rep.  456,  124  N.  W.  901,  holding  that  inheritable  right  to  use  for 


6  LJR.A.  667]  L.  R.  A.  CASES  AS  AUTHORITIES.  1162 

profit  land  of  another  may  be  created  by  apt  language  in  deed  and  such  right 
need  not  be  created  as  appurtenant  to  other  property. 

Cited  in  note  (122  Am.  St.  Rep.  213)  on  grant  of  easements  by  implication. 
Protection   of   recording:   act. 

Cited  in  Jobling  v.  Tuttle,  75  Kan.  360,  9  L.R.A.(X.S.)  965,  89  Pac.  699, 
holding  easement  to  free  use  of  water  from  mineral  spring  on  land  of  another, 
which  arose  from  executed  parol  contract  with  former  owner,  cannot  be  asserted 
as  against  subsequent  grantee  without  notice,  there  being  nothing  of  record  ta 
show  servitude. 

Distinguished  in  Hey  v.  Collman,  78  App.  Div.  587,  79  N.  Y.  Supp.  778,  hold- 
ing purchaser  of  land  not  protected  by  recording  act  from  assertion  of  right  of 
way  physically  denned. 

6  L.  R.  A.  669,  BLATZ  v.  ROHRBACH,  116  N.  Y.  450.  22  X.  E.  1049. 

Report  of  later  appeal  in  60  Hun,  169,  14  N.  Y.  Supp.  458. 
Beer   a*    intoxicating;    liquor. 

Followed  in  State  v.  Sioux  Falls  Brewing  Co.  5  S.  D.  44,  26  L.  R,  A.  139» 
58  X.  W.  1,  holding  beer,  in  absence  of  evidence  as  to  quality,  not  intoxicating 
liquor. 

Cited  in  Be  Hunter,  34  Misc.  389,  69  N.  Y.  Supp.  908,  holding  proof  of  sale 
of  beer  no  ground  for  enjoining  trafficking  in  liquors ;  Shreveport  Ice  &  Brewing 
Co.  v.  Brown,  128  La.  412,  54  So.  923,  to  the  point  that  under  local  option  laws, 
the  commodity  sold,  must  to  sustain  conviction,  be  intoxicating;  Cassens  v. 
State.  48  Tex.  Crim.  Rep.  188,  88  S.  W.  229,  holding  proof  of  intoxicating  proper- 
ties of  beer  necessary;  Potts  v.  State,  50  Tex.  Crim.  Rep.  370,  7  L.R.A.(X.S.)  197r 
123  Am.  St.  Rep.  847,  97  S.  W.  477,  holding  testimony  that  beverage  purchased 
was  called  "lager  beer"  insufficient  in  prosecution  for  violating  local  option  law 
to  show  liquor  possessed  intoxicating  properties;  People  v.  Cox,  106  App.  Div. 
303,  94  N.  Y.  Supp.  526,  19  N.  Y.  Crim.  Rep.  486,  holding  "malt  rose."  con- 
taining some  alcohol  and  made  to  represent  lager  beer,  within  prohibition  of 
liquor  tax  law,  and  crime  of  "unlawfully  selling  distilled  and  rectified  spirits, 
wine  fermented  and  malt  liquors"  sufficiently  charged  without  alleging  liquor 
was  intoxicating. 

Cited  in  notes  (20  LJRJL  648)  on  what  liquors  are  within  statutory  restric- 
tion as  to  sale  of  "spirituous,  vinous,  fermented,"  and  other  intoxicating  liquors; 
(7  L.R,A.(NJS.)  195)  on  sale  of  'lager  beer"  not  shown  to  be  intoxicating  as 
sustaining  conviction  for  unlawful  sale  of  "intoxicating  liquors;"  (25  L.R.A. 
(X.S.)  448)  on  proof  of  sale  of  "beer"  as  sustaining  conviction  under  statutes 
prohibiting  sale  of  vinous,  malt,  fermented,  or  intoxicating  liquors;  (12  Am. 
St.  Rep.  353)  on  intoxicating  liquors. 

Distinguished  in  People  ex  rel.  Lanci  v.  O'Reilly,  129  App.  Div.  525,  114  N. 
Y.  Supp.  258,  holding,  under  statute,  court  will  take  judicial  notice  that  lager 
beer  is  fermented  and  malt  liquor  within  liquor  tax  law. 

Disapproved  in  State  v.  Carmody,  50  Or.  5,  12  KR.A.(X.S.)  830.  91  Pac.  446, 
holding  charge  of  unlawfully  selling  intoxicating  liquor  sustained  by  proof  of 
sale  of  beer  without  any  further  description  or  testimony  that  it  was  intoxicating. 
Action  for  civil  damagre*  for  sale  of  Intoxicants. 

Cited  in  McCarty  v.  Wells,  51  Hun,  174,  4  N.  Y.  Supp.  672,  holding  that  plain- 
tiff in  action  for  damages  for  sale  of  intoxicants  need  not  prove  intoxication  was 
immediate  and  proximate  cause  of  death. 
Bnrden   of   proof   in   civil   action    chargring:   crime. 

Cited  in  Cook  v.  Dowling,  6  Misc.  273,  26  X.  Y.  Supp.  764,  holding  person 


1163  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  672 

charged  with  unlawful  conversion  presumed  innocent;  Re  Hunter,  34  Misc.  390, 
60  X.  Y.  Supp.  908,  holding  person  sought  to  be  enjoined  from  unlicensed  sale 
of  liquor  presumed  innocent;  Buffalo  v.  Smith,  8  Misc.  349,  28  N.  Y.  Supp.  690, 
holding  burden  of  proof  on  city  in  action  to  recover  penalty  for  violation  of 
ordinance. 

Cited  in  note  (39  L.  ed.  U.  S.  483)  on  presumption  of  innocence  and  legality. 
Necessity  of  proof  of  knowledge  of  Intent  to  violate  statute. 

Distinguished  in  Bulena  v.  Newman,  10  Misc.  462,  31  N.  Y.  Supp.  449,  holding 
that  knowledge  or  intent  to  use  imitation  union  label,  not  made  ingredient  of 
offense  by  statute,  need  not  be  proved. 

6  L.  R.  A.  672,  WEIR  v.  MARLEY,  99  Mo.  484,  12  S.  W.  798. 
Custody  of  child;  effect  of  agreement. 

Cited  in  Hussey  v.  Whiting,  145  Ind.  583,  57  Am.  St.  Rep.  220,  44  N.  E.  639, 
holding  oral  agreement  with  grandparent  at  wife's  death  not  preclude  father 
from  claiming  custody;  Re  Blackburn,  41  Mo.  App.  631,  holding  that  mother 
obtaining  custody  of  child  on  divorce  cannot  transmit  custody  to  third  party  on 
death ;  De  Jarnett  v.  Harper,  45  Mo.  App.  420,  holding  mother  entitled  to  custody 
on  death  of  father  irrespective  of  father's  contract  with  third  party;  Edwards  v. 
Edwards,  84  Mo.  App.  554,  granting  mother  custody  as  against  paternal  grand- 
father, where  evidence  insufficient  to  show  unfitness;  Hibbette  v.  Baines,  78  Miss. 
710,  51  L.  R,  A.  843,  footnote  p.  839,  29  So.  80,  holding  father  entitled  to  custody 
of  children  after  death  of  party  to  whom  entrusted  by  wife  on  deathbed;  Mark- 
well  v.  Pereles,  95  Wis.  422,  69  N.  W.  798,  holding  father  entitled  to  child  left 
with  wife's  relatives  at  their  request  at  her  death,  where  rights  not  surrendered; 
Legate  v.  Legate,  87  Tex.  253,  28  S.  W.  281;  State  ex  rel.  Wood  v.  Deaton,  93 
Tex.  247,  54  S.  W.  901,  holding  that  relinquishment  of  child  by  parents  to  an- 
other for  adoption  does  not  preclude  them  from  regaining  custody;  Urey  v. 
Moller,  142  Mo.  App.  583,  121  S.  W.  1102,  holding  father  has  first  claim,  unless 
he  is  unworthy,  has  abandoned  child,  is  unable  to  take  care  of  it  or  some  other 
strong  reason  exists  against  him;  Brewer  v.  Cary,  148  Mo.  App.  207,  127  S. 
W.  685,  holding  that  welfare  of  child  itself  invariably  determines  matter  of 
child's  custody  and  not  naked  question  of  right  of  custody;  Plahn  v.  Dribred, 
36  Tex.  Civ.  App.  605,  83  S.  W.  867,  holding  that  person  entitled  thereto  in 
whose  custody  interest  and  welfare  of  child  would  be  best  promoted;  Gilmore 
v.  Kitson,  165  Ind.  409,  74  N.  E.  1083,  holding  father  who  is  of  good  character 
and  is  able  to  comfortably  maintain  child  entitled  to  its  custody  as  against 
sister  of  deceased  mother  of  child,  although  latter  was  better  off  financially; 
Ex  parte  Reynolds,  73  S.  C.  302,  114  Am.  St.  Rep.  86,  53  S.  E.  490,  6  A.  &  E. 
Ann.  Cas.  936,  holding  right  of  parent  to  custody  of  child  cannot  be  defeated 
by  mere  parol  gift  of  child  to  another;  Cormack  v.  Marshall,  122  111.  App.  215, 
holding  parol  contract  by  which  father  confers  right  of  custody  of  infant  child 
on  another,  not  binding;  Re  Galleher,  2  Cal.  App.  367,  84  Pac.  352,  holding  oral 
agreement  whereby  parent  gave  infant  child  to  child's  maternal  aunt  to  raise, 
revocable  at  any  time:  Re  Crocheron.  16  Idaho,  451,  33  L.R.A.  (X.S.)  878,  101 
Pac.  741,  holding  that  under  section  5774  of  revised  codes,  surviving  parent 
who  is  competent  to  transact  business  and  not  otherwise  unsuitable  is  entitled 
to  guardianship  of  his  child;  Re  Byron,  83  Vt.  110,  74  Atl.  488,  holding  that 
mother  of  bastard  child  is  entitled  to  custody,  unless  child's  welfare  requires 
the  contrary. 

Cited  in  footnotes  to  Stapleton  v.  Poynter,  53  L.  R.  A.  784,  which  holds  that 
custody  of  child  will  be  taken  against  its  will  from  wealthy  grandparent  and 
given  to  parent  of  moral  habits;  Re  Reiss.  25  L.  R.  A.  798,  which  denies  power 


6  L.R.A.  672]  L.  R.  A.  CASES  AS  AUTHORITIES.  1164 

of  court  to  compel  father  to  send  children  to  visit  their  grandmother;  Re 
Young,  36  L.  R.  A.  224,  which  upholds  grandparents'  right  to  custody  of  children 
to  exclusion  of  father's  sister  appointed  guardian  by  his  will;  Fletcher  v.  Hick- 
man,  55  L.  R.  A.  896,  which  holds  father  bound  by  agreement  entrusting  cus- 
tody of  infant  child  to  another;  Anderson  v.  Young,  44  L.  R.  A.  277,  which 
sustains  court's  power  to  uphold,  in  interest  of  child,  custody  acquired  under 
void  agreement  with  parent;  Kelsey  v.  Green,  38  L.  R.  A.  471,  which  denies 
absolute  right  of  guardian  appointed  on  father's  application  as  against  guardian 
appointed  in  other  state  where  child  actually  resides;  State  ex  rel.  Lasserre  v. 
Michel,  54  L.  R.  A.  927,  which  holds  habeas  corpus  by  husband  against  wife  for 
custody  of  child  not  a  "suit"  within  statutory  prohibition;  People  v.  Ewer, 
25  L.  R.  A.  794,  which  holds  valid  act  prohibiting  employment  of  girls  under 
fourteen  as  dancers  or  in  theatrical  exhibitions;  Jones  v.  Bowman,  67  L.R.A. 
860,  which  holds  that  religious  belief  will  not  in  absence  of  statutory  require- 
ment be  considered  in  determining  the  proper  custodian  of  an  infant. 

Cited  in  notes   (27  L.R.A.  56)   on  validity  of  contract  for  transfer  of  parental 
responsibility  or  authority;    (88  Am.  St.  Rep.  269,   868,  869)    on  contracts   for 
transfer  of  parental  custody  and  responsibility. 
Res  jndlcata  by  habeas  corpus  proceedings. 

Followed  in  Re  Boutelle,  124  Mo.  App.  453,  101  S.  W.  1096,  holding  entry  of 
judgment  of  circuit  court  in  habeas  corpus  proceeding  granting  custody  of  child 
conclusive  against  another  proceeding  on  same  issues  of  fact  in  court  of  appeals. 

Cited  in  Re  Clyne,  52  Kan.  450,  35  Pac.  23,  holding  discharge  in  habeas 
corpus  for  insufficient  evidence  to  support  charges,  no  bar  to  subsequent  prose- 
cution on  new  evidence;  Re  Hamilton,  66  Kan.  756,  71  Pac.  817,  holding  judg- 
ment on  habeas  corpus  to  determine  custody  of  child  conclusive  of  all  matters  in 
issue  arising  upon  the  same  state  of  facts;  Re  King,  66  Kan.  698,  97  Am.  St.  Rep. 
399,  72  Pac.  263,  holding  judgment  on  habeas  corpus  as  to  custody  of  child  not 
conclusive  where  child's  welfare  requires  different  order;  Ex  parte  Reaves,  121 
Fed.  859,  holding  judgment  in  habeas  corpus  proceedings  awarding  enlisted  minor 
to  father's  custody  conclusive  on  government;  Cormack  v.  Marshall,  211  111.  525, 
67  L.R.A.  790,  71  N.  E.  1077,  1  A.  &  E.  Ann.  Cas.  256,  holding  order  of  court 
in  proceedings  to  obtain  custody  of  child  conclusive  on  parties  on  same  facts 
and  so  long  as  same  conditions  as  time  of  hearing  and  order;  Re  Clark,  203 
Mo.  143,  15  L.R.A.  (N.S.)  396,  106  S.  W.  990,  holding  res  adjudicata  not  good 
on  same  facts  where  prisoner  has  been  remanded;  Urey  v.  Moller,  142  Mo.  App. 
583,  121  S.  W.  1102,  holding  refusal  of  circuit  to  grant  application  of  father 
for  writ  of  habeas  corpus  to  obtain  custody  of  child  held  by  home  not  res 
adjudicata  on  application  in  court  of  appeals;  Dawson  v.  Dawson,  57  W.  Va. 
530,  110  Am.  St.  Rep.  800,  50  S.  E.  613,  holding  judgment  of  circuit  court  in 
habeas  corpus  proceeding  awarding  custody  to  wife,  res  adjudicata  in  suit  by 
husband  for  divorce  and  custody  of  child,  as  to  all  facts  known  and  existing 
at  hearing  of  habeas  corpus  proceeding. 

Cited  in  notes  (7  L.R.A.  578)  on  doctrine  of  res  judicata;  (67  L.R.A.  784) 
on  habeas  corpus  decree  as  to  custody  of  infant  as  res  judicata. 

6  L.  R.  A.  676,  FIRST  NAT.  BANK  v.  GUSTIN-MINERVA  CONSOL.  MIX.  CO. 

42  Minn.  327,  18  Am.  St.  Rep.  510,  44  N.  W.  198. 
Liability  of  stockholders. 

Cited  in  Mandel  v.  Swan  Land  &  Cattle  Co.  51  111.  App.  209.  holding  stock- 
holder liable  to  pay  calls  due  at  time  of  forfeiture  where  charter  provides  there- 
for at  time  of  subscription;  Kulp  v.  Fleming.  60  Ohio  St.  337,  87  Am.  St.  Rep. 
611,  62  N.  E.  334,  and  Hanson  v.  Davison,  73  Minn.  461,  76  N.  W.  254,  holding 


1105  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  676 

stockholder's  liability  contractual  in  nature;  Hospes  v.  Northwestern  Mfg.  & 
Car  Co.  48  Minn.  196,  15  L.  R.  A.  474,  31  Am.  St.  Rep.  637,  50  N.  W.  1117,  hold- 
ing liability  of  bonus  stockholders  to  creditors  based  on  fraud,  not  on  "trust 
fund"  theory;  Union  R.  Co.  v.  Sneed,  99  Tenn.  8,  41  S.  W.  364,  holding  subscriber 
not  estopped  to  deny  legality  of  issue  of  stock  in  suit  by  corporation  to  collect 
balance  of  subscription  thereto;  Berry  v.  Rood,  168  Mo.  334,  67  S.  W.  644,  and 
Hastings  Malting  Co.  v.  Iron  Range  Brewing  Co.  65  Minn.  32,  67  N.  W.  652, 
holding  stockholder  paying  subscription  in  overvalued  property  liable  to  subse- 
quent creditors  for  difference  between  its  actual  value  and  face  of  stock;  Hooper 
v.  Central  Trust  Co.  81  Md.  581,  29  L.  R.  A.  268,  32  Atl.  505,  holding  promoters 
owning  bonus  stock  cannot  enforce  corporate  mortgage  bonds  without  first  pay- 
ing for  stock;  Handley  v.  Stutz,  139  U.  S.  436,  35  L.  ed.  237,  11  Sup.  Ct.  Rep. 
530,  holding  creditor  prior  to  issue  of  additional  stock  not  entitled  to  enforce 
liability;  Rickerson  Roller-Mill  Co.  v.  Farrell  Foundry  &  Mach.  Co.  23  C.  C.  A. 
302,  43  U.  S.  App.  452,  75  Fed.  561,  holding  creditor  becoming  such  with  knowl- 
edge of  issue  of  "bonus  stock"  cannot  enforce  liability  in  Federal  court;  Cun- 
ningham v.  Holley,  M.  M.  &  Co.  58  C.  C.  A.  141,  121  Fed.  721,  holding  part 
owner  of .  property  receiving  full-paid  stock  therefor  cannot,  on  becoming  a 
creditor,  assert  invalidity  of  transaction;  State  Trust  Co,  v.  Turner,  111  Iowa, 
674,  53  L.  R,  A.  140,  82  N.  W.  1029,  holding  that  assignee  after  maturity  of 
not*  given  by  corporation  to  creditor  aware  of  bonus  stock  issue,  cannot  enforce 
liability;  Adamant  Mfg.  Co.  v.  Wallace,  16  Wash.  618,  48  Pac.  415,  holding 
stockholder  paying  subscription  in  overvalued  property  not  liable  to  party  aware 
thereof  at  time  of  becoming  creditor;  Andrews  v.  National  Foundry  &  Pipe 
Works,  36  L.  R.  A.  152,  22  C.  C.  A.  130,  46  U.  S.  App.  281,  76  Fed.  175,  holding 
parties  taking  stock  as  collateral  security  for  debt  not  liable  except  to  creditors 
misled  to  regard  them  as  shareholders;  Bruner  v.  Brown,  139  Ind.  608,  38  N.  E. 
3>18,  holding  that  receiver  cannot  enforce  liability  against  promoter  taking 
paid-up  stock  for  property,  in  absence  of  fraud;  Bent  v.  Underdown,  156  Ind. 
518,  60  N.  E.  307,  holding  no  liability  to  creditors  where  charter  provides  for 
issue  of  stock  at  less  than  par;  Elyton  Land  Co.  v.  Birmingham  Warehouse  & 
Elevator  Co.  92  Ala.  426,  12  L.R.A.  314,  25  Am.  St.  Rep.  65,  9  So.  129,  holding 
subscribers  liable  to  creditors  where  stock  paid  for  by  conveyance  of  land  worth 
only  amount  assumed  by  corporation;  Downer  v.  Union  Land  Co.  113  Minn. 
416,  129  N.  W.  777,  to.  the  point  that  creditor  may  maintain  action  to  recover 
balance  of  judgment  against  corporation  against  stockholders  for  difference  be- 
tween value  of  stock  and  what  they  paid  for  it  where  stock  was  issued  as  full 
paid;  Macbeth  v.  Banfield,  45  Or.  566,  106  Am.  St.  Rep.  670,  78  Pac.  693,  holding 
that  in  case  of  insolvency  the  unpaid  stock  subscription  becomes  a  trust  fund  for 
the  benefit  of  its  creditors;  Lea  v.  Iron  Belt  Mercantile  Co.  147  Ala.  427,  8 
L.R.A.  (N.S.)  282,  119  Am.  St.  Rep.  93,  42  So.  415,  holding  that  one  who  had 
extended  credit  with  knowledge  that  the  stock  had  not  been  fully  paid  for, 
cannot  compel  the  stockholders  to  pay  the  difference;  Easton  Nat.  Bank  v. 
American  Brick  &  Tile  Co.  69  N.  J.  Eq.  337,  60  Atl.  54,  holding  that  creditors 
extending  credit  to  the  corporation  with  knowledge  that  the  stock  is  not  paid 
up  in  full,  cannot  in  case  of  insolvency  compel  the  stockholders  to  pay  the 
remainder;  Easton  Nat.  Bank  v.  American  Brick  &  Tile  Co.  70  N.  J.  Eq.  744. 
8  L.R.A. (N.S.)  278,  64  Atl.  917,  10  A.  &  E.  Ann.  Cas.  84,  Reversing  in  part 
(19  N.  J.  Eq.  326,  60  Atl.  54,  holding  a  stockholder  who  participated  in  the 
improper  issuing  of  unpaid  stock  not  estopped  by  receiving  same,  from  sharing 
as  a  creditor  in  proceedings  to  enforce  the  liability  against  the  stockholders  for 
the  unpaid  amount. 

Cited  in  notes    (9  L.  R.  A.  632)    on  issue  of  new- stock  by  corporation;    (38 


6  L.R.A.  G7G]  L.  R.  A.  CASES  AS  AUTHORITIES.  1166 

L.  R,  A.  492,  494)  on  bonus  stock  of  corporations;  (42  L.  R.  A.  598,  619)  on 
how  far  payment  for  stock  by  corporation  by  transfer  of  property  will  protect 
shareholders  against  corporate  creditors;  (76  Am.  St.  Rep.  134)  on  right  of 
corporation  to  assess  stockholders. 

Distinguished  in  Shields  v.  Clifton  Hill  Land  Co.  94  Tenn.  156,  26  L.  R.  A. 
520,  45  Am.  St.  Rep.  700,  28  S.  W.  668,  and  Jones  v.  Whitworth,  94  Tenn.  609, 
30  S.  W.  736,  holding  statutory  liability  available  to  creditors  becoming  such 
either  before  or  after  issue  of  bonus  stock;  Carter  v.  Union  Printing  Co.  54  Ark. 
581,  16  S.  W.  579,  holding  that  creditor  prior  to  issue  of  stock  may  enforce  sub- 
scription thereto  in  spite  of  release  by  corporation  after  insolvency. 
Presumption  of  reliance  of  creditor  upon  professed  capital. 

Cited  in  Dwinnell  v.  Minneapolis  F.  &  M.  Ins.  Co.  97  Minn.  346,  106  N.  W. 
312,  holding  that  it  will  be  presumed  that  the  creditors  relied  upon  the  pro- 
fessed capital  stock  of  the  corporation  and  were  induced  thereby  to  give  credit; 
See  v.  Heppenheimer,  69  N.  J.  Eq.  85,  61  Atl.  843,  on  the  presumption  that 
creditors  are  presumed  to  act  on  the  information  contained  in  the  records  in 
the  office  of  the  Secretary  of  State. 
Conflict  of  laws. 

Cited  in  Western  Nat.  Bank  v.  Lawrence,  117  Mich.  673,  76  N.  W.  105,  holding 
that  creditors  may  enforce  anywhere,  double  liability  imposed  by  foreign  statute 
on  stockholders  in  corporations  there  organized;  Childs  v.  Cleaves,  95  Me.  508, 
50  Atl.  714,  holding  that  receiver  of  foreign  corporation  may  maintain  actions 
in  other  jurisdictions  to  enforce  liability;  Leucke  v.  Tredway,  45  Mo.  App.  513, 
holding  special  remedies  against  bonus  stockholders,  at  corporation's  domicil, 
not  available  in  foreign  jurisdiction;  Giesen  v.  London  &  N.  W.  American  Mortg. 
Co.  42  C.  C.  A.  515,  102  Fed.  587,  holding  liability  under  foreign  statute  en- 
forceable in  Federal  courts;  McVickar  v.  Jones,  70  Fed.  756,  holding  statutory 
liability  of  stockholder  in  foreign  corporation  enforceable  in  Federal  court 
sitting  in  another  state;  Black  v.  Sullivan  Timber  Co.  147  Ala.  333,  40  So.  667, 
holding  that  where  the  corporation  has  been  voluntarily  dissolved  by  the  courts 
of  one  state,  the  stockholder  in  another  cannot  apply  to  the  courts  of  his  state 
to  have  a  receiver  appointed. 

Cited  in  notes  (12  L.  R,  A.  366)  on  law  of  comity  as  to  foreign  corporations; 
(34  L.  R.  A.  741)  on  right  to  enforce  stockholder's  liability  outside  of  state  of 
incorporation. 

Limited  in  Rule  v.  Omega  Stove  &  Grate  Co.  64  Minn.  329,  67  N.  W.  60, 
holding  creditor  of  insolvent  foreign  corporation  not  entitled  to  statutory  pro- 
ceedings against  "bonus-stock"  holders  in  domestic  corporation. 

Power    to    sell    corporate    property    against    consent    of    minority    stock- 
holder*. 

Cited  in  note  (35  L.R.A. (N.S.)  396)  on  power  to  sell  property  essential  to 
existence  of  corporation  as  a  going  concern  against  will  of  minority  stockholders. 

6  L.  R,  A.  680,  SILLARS  v.  COLLIER,  151  Mass.  50,  23  N.  E.  723. 
Actionable  libel   or  slander. 

Cited  in  Fanning  v.  Chace,  17  R.  I.  390,  13  L.  R,  A.  136,  33  Am.  St.  Rep.  878, 
22  Atl.  275,  holding  charge  that  person  intends  to  start  house  of  ill  fame,  not 
actionable;  Doyle  v.  Kirby,  184  Mass.  411,  68  N.  E.  843,  holding  oral  charge  of 
having  sold  vote  not  actionable  without  averment  and  proof  of  special  damages; 
Doyle  v.  Kirby,  184  Mass.  411,  68  N.  E.  843,  holding  in  slander  by  spoken  words, 
there  can  be  no  recovery  in  absence  of  plea  and  proof  of  special  damages,  unless 
words  impute  commission  of  crime. 


1167  L.  E.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  682 

Cited  in  footnote  to  Nissen  v.  Cramer,  6  L.  R,  A.  780,  which  holds  relevant 
words  spoken  by  party  to  action  during  trial  privileged. 

Cited  in  notes   (9  L.R.A.  621)    on  libel  and  slander  in  general;    (116  Am.  St. 
Rep.  815)   on  what  words  are  libelous  per  se. 
Criticism  of  public  men. 

Cited  in  Kilgour  v.  Evening  Star  Newspaper  Co.  96  Md.  24,  53  Atl.  716,  hold- 
ing publication  charging  state's  attorney  with  statement  that  he  would  not 
recommend  payment  of  coroner's  fees  if  proposed  autopsy  were  held,  not  libelous 
per  se. 

Cited  in  footnotes  to  State  v.  Hoskins,  47  L.  R.  A.  223,  which  denies  privilege, 
to  publication  of  charges  against  county  judge,  outside  of  judicial  district; 
Upton  v.  Hume,  21  L.  R.  A.  493,  which  holds  false  imputation  of  crime  to  candi- 
date not  privileged;  Coffin  v.  Brown,  55  L.  R.  A.  732,  which  denies  right  to 
falsely  attack  character  of  appointee  of  governor  to  prevent  latter's  re-election; 
Eikhotf  v.  Gilbert,  51  L.  R.  A.  451,  which  denies  privilege  to  circular  to  voters 
announcing  that  candidate  for  re-election  has  championed  legislation  opposed  to 
moral  interests  of  community;  Wofford  v.  Meeks,  55  L.  R.  A.  214,  which  holds 
libelous,  publication  imputing  to  county  officials  prostitution  of  county  finances 
by  awarding  contracts  to  persons  of  same  political  faith;  Augusta  Evening 
News  v.  Radford,  20  L.  R.  A.  533,  which  holds  newspaper  article  charging  con- 
stable with  soliciting  business  for  magistrates'  courts  libelous;  Star  Pub.  Co. 
v.  Donahoe,  65  L.R.A.  980,  which  holds  newspaper  publication  charging  can- 
didate for  office  with  a  criminal  offense,  not  privileged. 

Cited  in  notes  (8  L.  R.  A.  193)  on  words  tending  to  injure  person  in  office; 
<13  L.  R.  A.  98)  on  fair  criticism  of  public  men. 

6  L.  R.  A.  682,  RAMSEY  v.  RAMSEY,  121  Ind.  215,  23  N.  E.  69. 
Rijerht   to   custody  and   service   of  child. 

Cited  in  footnotes  to  Keller  v.  St.  Louis,  47  L.  R,  A.  391,  which  denies  mother's 
right  of  action  for  injury  to  child  given  her  by  divorce  decree  without  provision 
as  to  its  support;  Hibbette  v.  Bains,  51  L.  R.  A.  839,  which  sustains  father's 
right  to  custody  of  child  notwithstanding  assent  to  wife's  deathbed  contract  to 
give  custody  to  her  relatives. 
Duty  of  father  to  support  child. 

Cited  in  Brosius  v.  Barker,  154  Mo.  App.  662,  136  S.  W.  18,  holding  that  it 
is  father's  duty  to  maintain  and  support  his  infant  child. 

Cited  in  note    (38  L.R.A.  (N.S.)    511)    on  recovery  by  mother  against  father 
for  money  expended  in  support  of  children. 
Effect   of   divorce   upon   responsibility   of   parent    for   support   of   child. 

Cited  in  McKay  v.  McKay,  125  Cal.  71,  57  Pac.  677,  and  Gussman  v.  Gussman, 
140  Ind.  435,  39  N.  E.  918,  holding  that  decree  of  divorce  giving  custody  of 
child  to  mother,  relieves  father  of  responsibility  for  support  and  education; 
Spade  v.  State,  44  Ind.  App.  534,  89  N.  E.  604,  holding  that  it  is  duty  of  father 
to  support  child  even  where  court  granting  wife  divorce  takes  from  him  custody 
of  child:  Alvey  v.  Hartwig,  106  Md.  264,  11  L.R. A. ( JST.S. )  683,  67  Atl.  132,  14 
A.  &  E.  Ann.  Cas.  250.  holding  wife  who  obtains  decree  awarding  her  custody 
of  minor  children  in  divorce  suit  against  nonresident  husband  cannot  recover 
for  support  in  such  suit  where  prayer  is  only  for  divorce  and  custody  of  chil- 
dren; Libbe  v.  Libbe.  157  Mo.  App.  614,  138  S.  W.  688,  holding  that  wife  cannot 
maintain  suit  against  husband  for  expenses  incurred  in  maintainance  of  child 
pending  suit  by  her  for  divorce. 

Cited  in  notes   (47  Am.  St.  Rep.  316,  317)   on  father's  liability  where  custody 


6  L.R.A.  682]  L.  R.  A.  CASES  AS  AUTHORITIES.  1168 

of  child  is  awarded  to  divorced  mother;    (114  Am.  St.  Rep.  701)  on  father's  duty 
to  support  child  awarded  to  mother  by  divorce  decree  silent  as  to  maintenance. 

Distinguished  in  Zilley  v.  Dunwiddie,  98  Wis.  434,  40  L.  R.  A.  581,  67  Am. 
St.  Rep.  820,  74  N.  W.  126,  holding  mother  refusing  to  surrender  child  to  father, 
after  he  has  become  entitled  to  custody  under  decree  of  divorce,  may  recover  on 
implied  promise  of  father  to  pay  for  maintenance;  Leibold  v.  Leibold,  158  Ind. 
61,  62  N.  E.  627,  holding  father  liable  to  support  child  for  custody  of  which  he 
is  unfit;  Tobin  v.  Tobin,  29  Ind.  App.  384,  64  N.  E.  624,  modifying  divorce 
decree  awarding  child  to  mother  by  requiring  father  to  support  it  upon  showing 
that  mother  cannot  do  so;  Spencer  v.  Spencer,  97  Minn.  59,  2  L.R.A. (N.S.)  853, 
114  Am.  St.  Rep.  695,  105  N.  W.  483,  7  A.  &  E.  Ann.  Gas.  901,  holding  where 
decree  of  divorce  for  husband's  misconduct  awards  custody  to  mother  but  is 
silent  as  to  their  support,  he  is  liable  for  reasonable  sum  for  necessaries  fur- 
nished for  their  support,  where  he  refuses  or  neglects  to  support  them. 

Disapproved  in  effect  in  McCloskey  v.  McCloskey,  93  Mo.  App.  400,  67  S.  W. 
669,  holding  that  father  remains  liable  to  mother  for  necessary  disbursements 
for  children  made  after  divorce. 
Rijiht    of    volunteer    to    recover    for    services    or    disbursements. 

Cited  in  Turner  v.  Flagg,  6  Ind.  App.  572,  33  N.  E.  1104,  holding  person  fur- 
nishing necessaries  to  infant  not  necessarily  deemed  volunteer,  when  parent 
neglects  or  refuses  support;  Montgomery  County  v.  Ristine,  124  Ind.  247,  8  L. 
R.  A.  463,  24  N.  E.  990,  holding  that  county  cannot  recover  on  contract  with 
guardian  providing  for  payment  for  care  of  insane  person  in  asylum  for  poor; 
Miles  v.  De  Wolf,  8  Ind.  App.  175,  34  N.  E.  114,  holding  that  examination  of 
witnesses  by  firm  of  attorneys,  holding  trust  relation  to  estate,  in  presence  of 
trustee  under  will,  raises  no  presumption  of  employment  by  trustee;  Demonet 
v.  Burkart,  23  App.  D.  C.  318,  holding  where  wife  on  decree  of  divorce  volun- 
tarily assumes  sole  care  and  custody  of  child  and  declines  offers  of  husband  to 
assist  therein,  equity  will  not  after  lapse  of  long  period  compel  husband  to 
reimburse  wife  for  such  care  and  custody. 

6  L.  R.  A.  686,  NADING  v.  McGREGOR,  121  Ind.  465,  23  N.  E.  283. 
Guaranty,    construction    of. 

Cited  in  note  (105  Am.  St.  Rep.  504,  517)  on  contract  of  guaranty. 

Distinguished   in   Colborn   v.   Fry,   23   Ind.   App.   489,   55   N.   E.   621,   holding 
letter  authorizing  "bearer  to  purchase  such  lumber  as  he  may  select  for  me" 
neither  guaranty  nor  original  undertaking. 
Original    undertakings. 

Cited  in  Hernley  v.  Brannum,  23  Ind.  App.  393,  55  N.  E.  512;  Walter  A.  Wood 
Mowing  &  Reaping  Co.  v.  Farnham,  1  Okla.  376,  33  Pac.  867;  Woody  v.  Hawoith, 
24  Ind.  App.  637,  57  N.  E.  272, —  holding  guaranty  of  payment  of  note,  original 
undertaking;  Metzger  v.  Hubbard,  153  Ind.  192,  54  N.  E.  761,  holding  guarantor 
of  payment  of  note  primarily  liable;  Cole  Mfg.  Co.  v.  Morton,  24  Mont.  63, 
60  Pac.  587;  Bryant  v.  Stout,  16  Ind.  App.  392,  44  N.  E.  68;  Durand  &  K.  Co. 
v.  Rockwell,  23  Ind.  App.  13,  54  K  E.  771, —  holding  bond  conditional  on  faithful 
accounting  by  employee,  original  undertaking;  Wittmer  Lumber  Co.  v.  Rice,  23 
Ind.  App.  588,  55  N.  E.  868,  holding  one  signing  as  surety  on  bond  to  secure 
performance  of  contract  originally  liable;  Wheeler  v.  Rohrer,  21  Ind.  App.  481. 
52  N.  E.  780,  holding  bond  to  indemnify  vendor  against  loss  original  under- 
taking; Lane  v.  Mayer,  15  Ind.  App.  384,  44  N.  E.  73;  Newcomb  Bros.  Wall 
Paper  Co.  v.  Emerson,  17  Ind.  App.  485,  46  N.  E.  1018;  Herman  v.  Williams. 
36  Fla.  142,  18  So.  351;  Conduitt  v.  Ryan,  3  Ind.  App.  5,  29  N.  E.  160,— holding 


1169  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  691 

guaranty  of  payment  for  goods  sold  and  to  be  sold,  original  undertaking;  Shearer 
v.  R,  S.  Peale  &  Co.  9  Ind.  App.  286,  3G  X.  E.  455,  holding  guaranty  of  payment 
for  goods  ordered  original  undertaking;  Stewart  v.  Knight  &  J.  Co.  166  Ind. 
503,  76  N.  E.  743,  holding  written  order  addressed  to  plaintiff,  signed  by  de- 
fendant, stating,  "Please  let  bearer  have  whatever  he  wants  at  any  time  and 
I  will  see  that  same  is  paid  for,"  is  direct  and  original  promise,  and  defendant 
liable  without  notice  of  acceptance;  Rouse  v.  Wooten,  140  N.  C.  560,  111  Am. 
St.  Rep.  875,  53  S.  E.  430,  6  A.  &  E.  Ann.  Cas.  280,  holding  surety  on  note 
primarily  liable  thereon;  Miller  v.  State,  35  Ind.  App.  384,  74  N.  E.  260,  holding 
contract  by  principal  contractor  to  liquidate  indebtedness  of  subcontractor,  who 
has  absconded  for  supplies  and  labor  furnished  subcontractor,  who  theretofore 
was  treated  as  debtor,  not  original  undertaking. 
Collateral  undertakings. 

Cited  in  Sullivan  v.  Cluggage,  21  Ind.  App.  672,  52  N.  E.  110,  holding  surety's 
bond  to  pay  damages  occasioned  by  principal's  failure  to  perform  contract,  col- 
lateral guaranty. 
Xecesuity  of  notice  of  acceptance   of  guaranty. 

Cited  in  Bechtold  v.  Lyon,  130  Ind.  202,  29  N.  E.  912,  holding  notice  of 
acceptance  of  guaranty  contemporaneous,  with  or  subsequent  to  principal  con- 
tract unnecessary;  Cumberland  Glass  Mfg.  Co.  v.  Wheaton,  208  Mass.  431,  94 
N.  E.  803,  holding  that  no  notice  of  default  in  payment  is  necessary  where 
guaranty  of  payment  expressly  formed  part  of  consideration  of  contract. 

Cited  in  footnotes  to  German  Sav.  Bank  v.  Drake  Roofing  Co.  51  L.R.A.  758, 
which  holds  notice  of  acceptance  necessary  to  bind  guarantor;  Cowan,  M.  &  Co. 
v.  Roberts,  65  L.R.A.  729,  which  holds  notice  of  acceptance  not  necessary  to 
bind  one  guaranteeing  debt  with  provision  that  guaranty  shall  remain  in  force 
until  full  payment  or  discharge  in  writing. 

Cited  in  notes  (20  L.R.A.  259)  on  necessity  of  notice  of  default  to  bind 
guarantor;  (16  L.R.A.  (N.S.)  355,  367)  on  necessity  of  notice  to  acceptance  to 
bind  guarantor. 

6  L.  R.  A.  688,  POPE  v.  VAJEN,  121  Ind.  317,  22  N.  E.  308. 
Xovation. 

Cited  in  Price  v.  Barnes,  7  Ind.  App.  5,  31  N.  E.  809,  holding  acceptance  of 
individual  note  in  extinguishment  of  liability  as  guardian,  novation;  Horn  v. 
McKinney,  5  Ind.  App.  349,  32  N.  E.  334,  holding  that  answer  to  suit  on  note 
pleading  novation  must  show  new  agreement  by  all  parties. 

Cited  in  note  (10  L.  R.  A.  369;  13  L.  R.  A.  390)  on  what  constitutes  novation. 
Consideration  for  release  from  note. 

Cited  in  Ditmar  v.  West,  7  Ind.  App.  639,  35  X.  E.  47,  holding  surrender  of 
right  of  action  against  maker  of  note  constitutes  sufficient  consideration  to  sus- 
tain release;  Morrison  v.  Kendall,  6  Ind.  App.  217,  33  N.  E.  370,  holding  that 
release  of  party  to  note  requires  a  consideration. 
Release   front   one   burden   as   consideration    for   imposition   of  another. 

Cited  in  Indianapolis  &  E.  I.  R.  Co.  v.  Xew  Castle.  43  Ind.  App.  473,  474,  87 
N.  E.  1067,  holding  releasing  street  car  company  from  Imrden  of  keeping  street 
between  tracks  in  repair  consideration  for  imposition  of  burdens  not  contained 
in  original  franchise. 

6  L.  R.  A.  691,  GRAY  v.  HERMAX.  75  \Yis.  453,  44  X.  YV.  248. 
Effect    of   payment    of   debt    by    stranger. 

Cited  in  Crumlish  v.  Central  Impror.  Co.  38  W.  Va.  396,  23  L.  R.  A.   128, 
L.R.A.  Au.  Vol.  I.— 74. 


€  L.R.A.  C91]  L.  R.  A.  CASES  AS  AUTHORITIES.  1170 

45  Am.  St.  Rep.  872,  18  S.  E.  456,  holding  that  payment  by  stranger  discharges 
debt;  Chicago,  R.  L  A  P.  R.  Co.  v.  Brown,  70  Xeb.  700,  97  X.  W.  1038,  holding 
accord,  even  between  plaintiff  and  third  party,  as  to  subject  matter  of  suit, 
and  satisfaction  moving  from  third  person  to  plaintiff  and  accepted  by  him. 
i>ar  to  action  if  defendant  has  authorized  or  ratified  settlement. 

Cited  in  notes   (23  L.R.A.  120)    on  effect  of  payment  of  debt  by  volunteer  or 
stranger  to  original  undertaking;    (100  Am.  St.  Rep.  397)    on  accord  and  satis- 
faction with  stranger  to  transaction. 
Statute  of  frauds  -  Promise  to  pay  another's  debt. 

Cited  in  Dupuis  v.  Interior  Constr.  &  Improv.  Co.  88  Mich.  107,  50  N.  W.  103, 
.holding  parol  promise  to  retain  enough  of  contractor's  money  to  pay  subcon- 
tractor, void;  Lowe  v.  Turpie,  147  Ind.  683,  37  L.  R.  A.  243,  44  X.  E.  25,  holding 
parol  promise  to  pay  another's  note  to  third  person,  upon  assignment  of  col- 
lateral by  surety,  void;  Mine  &  Smelter  Supply  Co.  v.  Stockgrowers'  Bank,  98 
C.  C.  A.  229,  173  Fed.  863,  holding  parol  promise  to  pay  debt  of  another,  where 
no  substantial  benefit  or  advantage  inures  directly  to  promisor  in  consideration 
thereof,  cannot  be  sustained. 

Cited  in  note  (27  Am.  St.  Rep.  20)   on  promise  to  pay  debt  of  another. 

6  L.  R.  A.  693,  CARTER  v.  NOLAXD,  86  Va.  568,  10  S.  W.  605. 

KftVft  of  collateral  agreement  on  construction  of  negotiable  Instrument. 

Cited  in  Xottingham  v.  Ackiss,  107  Va.  66,  57  S.  E.  592,  holding  where  note 
and  separate  written  agreement  whereby  note,  though  payable  on  demand,  was 
only  to  be  paid  from  proceeds  of  certain  sales,  were  executed  at  same  time  and 
both  assigned  together,  note  is  governed  by  contract. 


6  L.  R.  A.  695,  MOLLOY  v.  WALKER,  TWP.  77  Mich.  448,  43  N.  W.  1012. 
Negligence  -  Proximate    cause. 

Cited  in  footnotes  to  Missouri  P.  R.  Co.  v.  Columbia,  58  L.  R.  A.  399,  which 
holds  placing  on  platform  heavy  doors  blown  on  track  by  severe  gale  not  proxi- 
mate cause  of  derailment  of  engine;  Bell  v.  Wayne,  48  L.  R.  A.  644,  which  holds 
want  of  barriers  to  approach  to  bridge  not  proximate  cause  of  injuries  by  team 
going  off  bank  while  unmanageable. 

Cited  in  note  (18  L.R.A.  (X.S.)  1137)  on  what  injuries  may  be  deemed  proxi- 
-mately  caused  by  absence  of  guard  rail  in  highway. 

Distinguished  in  Beall  v.  Athens  Twp.  81  Mich.  541,  45  N.  W.  1014,  holding 
town  not  liable  where  failure  to  erect  barriers  not  proximate  cause  of  injury. 
Liability   for   defects  in  highway. 

Cited  in  Bigelow  v.  Kalamazoo,  97  Mich.  127,  56  N.  W.  339  (dissenting  opin- 
ion), majority  holding  city  not  liable  to  one  slipping  on  beveled  edge  of  walk, 
rendered  necessary  by  local  requirements;  Finch  v.  Bangor,  133  Mich.  151,  94 
N".  W.  738,  holding  city  is  bound  to  keep  its  highways  in  condition  reasonably 
*afe  and  fit  for  travel;  McEvoy  v.  Sault  Ste.  Marie,  136  Mich.  190,  98  X.  W. 
1006  (dissenting  opinion),  on  liability  of  city  for  injury  from  obstruction  al- 
lowed to  remain  in  street. 

Cited  in  footnotes  to  Teagar  v.  Flemingsburg,  53  L.R.A.  792,  which  holds  mere 
building  of  step  in  sidewalk  not  negligence  rendering  city  liable  for  injury  to 
pedestrians;  Harden  v.  Jackson,  66  L.R.A.  986,  which  holds  plank  sidewalk  not 
so  unsafe  as  to  render  city  liable  to  one  falling  thereon  because  his  cane  goes 
through,  although  the  edges  of  planks  have  become  so  decayed  as  not  to  with- 
stand pressure  of  cane. 

Cited  in  notes    (19  L.  R.  A.  454)    on  distinction  between  public  and   private 


1171  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  702 

functions  of  municipalities  as  to  liability  for  negligence;  (13  L.  R.  A.  439)  on 
custom  and  usage  as  law;  (67  L.R.A.  269)  on  municipal  liability  for  defective 
plan  of  street  construction;  (13  L.R.A. (N.S.)  1273;  20  L.R.A. (N.S.)  525,  673, 
675,  682,  696)  on  liability  of  municipality  for  defects  or  obstructions  in  streets. 

Distinguished  in  Weisse  v.  Detroit,  105  Mich.  486,  63  N.  W.  423,  holding  city 
not  liable  for  injury  caused  by  slight  elevation  of  loose  plank  in  walk. 
Safety  of  highway  question  for  jury. 

Followed  in  Hannon  v.  Gladstone,  136  Mich.  622,  99  N.  W.  790,  holding  it 
question  for  jury  whether  city  was  negligent  in  failing  to  erect  guards  on  side- 
walk some  distance  above  ground. 

Cited  in  Ross  v.  Ionia  Twp.  104  Mich.  324,  62  N.  W.  401,  holding  where  horse 
frightened  by  falling  water  backed  off  approach  to  bridge,  negligence  in  not  erect- 
ing railing  question  for  jury;  Schrader  v.  Port  Huron,  106  Mich.  175,  63  N.  W. 
964,  holding  city's  liability  for  open  gutter  between  curb  and  crosswalk  question 
for  jury;  Comiskie  v.  Ypsilanti,  116  Mich.  322,  74  N.  W.  487,  holding  city's  liabil- 
ity for  ditch  at  point  where  beaten  path  crossed  street,  question  for  jury;  Shaw 
v.  Saline  Twp.  113  Mich.  345,  71  N.  W.  642,  and  Gage  v.  Pontiac,  0.  &  N.  R.  Co.  105 
Mich.  341,  63  N.  W.  318,  holding  necessity  of  railing  on  bridge  approach  question 
for  jury;  Schillinger  v.  Verona,  88  Wis.  323,  60  N.  W.  272,  holding  question  of 
suliiciency  of  unrailed  approach  to  bridge,  for  jury;  Lauder  v.  St.  Clair  Twp. 
125  Mich.  485,  85  N.  W.  4,  holding  negligence  in  failing  to  maintain  bridge  rail- 
ing question  for  jury;  Speck  v.  Bruce  Twp.  166  Mich.  558,  35  L.R.A.(N.S.)  207, 
132  N.  W.  114,  holding  that  in  action  for  injury  on  highway  the  question  of 
whether  barriers,  guards,  or  railings  were  necessary  to  render  embankment  safe 
was  for  jury. 
Notice  to  officers  of  defect  In  highway. 

Cited  in  Aben  v.  Ecorse  Twp.   113  Mich.  11,  71  N.  W.  329,  holding  notice  of 
defective  bridge   shown  by  evidence  of  notorious  weakness  and  examination  by 
town  officers. 
Contributory   negligence. 

Cited  in  Nosier  v.  Coos  Bay  R.  Co.  39  Or.  337,  64  Pac.  644,  holding  failure  to 
act  in  best  way  in  face  of  sudden  danger  not  contributory  negligence. 

Cited  in  note   (21  L.R.A. (N.S.)   629,  654)   on  contributory  negligence  as  affect- 
ing municipal  liability  for  defects  and  obstructions  in  streets. 
—  Question  for  jury. 

Cited  in  Roux  v.  Blodgett  &  D.  Lumber  Co.  85  Mich.  530,  13  L.  R.  A.  732,  24 
Am.  St.  Rep.  102,  48  N.  W.  1092,  holding  contributory  negligence  of  servant  con- 
tinuing to  work  in  dangerous  place,  question  for  jury. 
Usage  as  affecting  requisite  care. 

Cited  in  Pennsylvania  Co.  v.  Newby,  164  Ind.  Ill,  72  N.  E.  1043,  holding 
standard  of  care  required  in  construction  of  cattleguards  required  of  railroads 
by  statute  not  determined  by  usage  of  first  class  railroads  in  form  used. 

Cited  in  note  (8  Eng.  Rul.  Cas.  336)  on  necessity  that  custom  be  limited, 
certain,  reasonable,  and  of  lawful  origin. 

6  L.  R.  A.  702,  HARRIS  v.  SMITH,  79  Mich.  54,  44  N.  W.  169. 
Right   of  relative   to   compenHatlon    for   services. 

Cited  in  Kirchgassner  v.  Rodick,  170  Mass.  546,  49  N.  E.  1015,  holding  that 
stepchild  cannot  recover  for  services  where  the  relation  with  stepfather  is  that 
of  parent  and  child. 

Cited  in  footnote  to  Ulrich  v.  Ulrich,  18  L.  R.  A.  37,  which  holds  that  no  pre- 


6  L.R.A.  702]  L.  R.  A.  CASES  AS  AUTHORITIES.  1172 

sumption  exists  against  parent's  agreement  to  pay  for  services  where  evidence 
tends  to  show  agreement. 

Cited  in  notes   (11   L.R.A.  (N.S.)    885,  893,  894,  899)    on  implication  of  agree- 
ment to  pay  for  services  of  relative  or  member  of  household;    (23  Am.  St.  Rep. 
332)    on  services  of  minor  child;    (133   Am.   St.  Rep.   255)    on  presumption  of 
gratuitous  services  by  relations. 
Agency   of   wife   for   husband. 

Cited  in  Roup  v.  Roup,  136  Mich.  393,  99  N.  W.  389,  on  agency  of  mother  to 
act  for  father  in  delivery  of  deed  to  son. 

6  L.  R.  A.  703,  SUTTON  v.  HIRAM  LODGE  NO.  51,  83  Ga.  770,  10  S.  E.  585. 
Tenancy   by   sufferance. 

Cited  in  Willis  v.  Harrell,  118  Ga.  909,  45  S.  E.  794,  holding  it  arises  where 
tenant  by  month  whose  year  expires  with  end  of  calendar  year,  remains  in 
possession  thereof. 

6  L.  R.  A.  705,  RAMSAY  v.  THOMPSON,  71  Md.  315,  18  Atl.  592. 
Right  of  parent  to  appointment  as  guardian  of  child. 

Cited  in  notes  (65  L.R.A.  690,  695,  696)  on  right  of  mother,  or  reputed 
father,  of  illegitimate  to  its  custody  or  control;  (13  L.R.A. (N.S.)  294)  on 
effect  of  attempt  by  father  to  appoint  guardian  for  child  against  surviving 
mother;  (33  L.R.A. (N.S.)  870)  on  right  of  parent  to  appointment  as  guardian 
of  minor. 

6  L.  R.  A.  706,  BALTIMORE  &  O.  R.  CO.  v.  STATE,  72  Md.  36,  20  Am.  St.  Rep. 

454,  18  Atl.  1107. 
Who    are    passengers. 

Cited  in  Boston  Ins.  Co.  v.  Chicago,  R.  I.  &  P.  R.  Co.  118  Iowa,  434,  59  L.  R. 
A.  801,  92  N.  W.  88;  Libby  v.  Maine,  C.  R.  Co.  85  Me.  39,  20  L.  R.  A.  814,  26 
Atl.  943, —  holding  carrier  owes  same  degree  of  care  to  postal  clerk  as  to  pas- 
sengers; Cleveland,  C.  C.  &  S.  L.  R.  Co.  v.  Ketcham,  133  Ind.  354,  19  L.  R.  A. 
342,  36  Am.  St.  Rep.  550,  33  N.  E.  116,  holding  postal  clerk  with  photographic 
commission,  and  entitled  to  free  transportation,  a  passenger;  Voight  v.  Balti- 
more &  O.  S.  W.  R.  Co.  79  Fed.  562,  holding  express  messenger  passenger  for 
hire,  although  traveling  in  special  car  provided  by  carrier;  Illinois  C.  R.  Co. 
v.  Porter,  117  Tenn.  19,  94  S.  W.  666,  10  A.  &  E.  Ann.  Cas.  789,  holding  railway 
postal  clerk  in  discharge  of  duties  on  railway  train  is  passenger;  Barker  v. 
Chicago,  P.  &  St.  L.  R.  Co.  243  111.  491,  26  L.R.A.  (N.S.)  1062,  134  Am.  St. 
Rep.  382,  90  N.  E.  1057;  Chesapeake  &  0.  R.  Co.  v.  Patton,  23  App.  D.  C.  121,— 
holding  railway  postal  clerk  a  passenger. 

Cited  in  notes  (19  L.R.A.  340)  on  liability  of  railroad  companies  for  injuries 
received  by  postal  clerks  on  their  trains;  (61  Am.  St.  Rep.  99,  100)  on  who 
are  passengers  and  when  they  become  such. 

Distinguished    in   Yarrington   v.    Delaware   &   H.   Co.    143    Fed.   567,    holding, 
under  Pennsylvania  statute,  railway  mail  clerk  not  passenger  while  engaged  in 
performance  of  his  duties. 
Contributory    negligence. 

Cited  in  Florida  Southern  R.  Co.  v.  Hirst,  30  Fla.  26,  16  L.  R.  A.  636,  32  Am. 
St.  Rep.  17,  11  So.  506,  holding  that  carrier's  rule  forbidding  passengers  to  ride 
in  express  cars  may  be  waived  or  abandoned;  Winkelmann  &  B.  Drug  Co.  v. 
Colladay,  88  Md.  92,  40  Atl.  1078,  holding  it  not  to  be  negligence  per  se  for  em- 
ployee to  put  head  in  shaft  while  dumb  waiter  not  in  motion;  Conowingo  Bridge 
Co.  v.  Hedrick,  95  Md.  681,  53  Atl.  430,  holding  it  not  to  be  negligence  per  se 


1173  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  713 

to  enter  unlighted  covered  toll  bridge  at  night;  McCarthy  v.  Clark,  115  Md. 
464,  81  Atl.  12,  holding  that  question  of  contributory  negligence  was  for  jury 
where  woman  carrying  child  at  night  fell  across  obstruction  in  sidewalk  con- 
sisting of  frame  for  manhole  to  be  used  in  construction  of  sewer;  Benson  v. 
New  York,  N.  H.  &  H.  R.  Co.  26  R.  I.  412,  59  Atl.  79  (dissenting  opinion),  on 
conduct  amounting  to  contributory  negligence  per  se. 
Passengers  riding-  In  Improper  place  or  car. 

Cited  in  Miller  v.  Atlanta  &  C.  Air  Line  R.  Co.  144  N.  C.  553,  57  S.  E.  345, 
holding  taking  seat  in  front  part  of  caboose  not  a  bar  to  recovery  for  injury 
from  backing  car  into  caboose,  unless  such  conduct  proximately  caused  or  con- 
curred in  causing  injury;  Lane  v.  Choctaw,  0.  &  G.  R.  Co.  19  Okla.  338,  91 
Pac.  883,  holding  it  not  negligence  per  se  for  passenger  to  take  seat  in  baggage 
car,  when  passenger  cars  are  crowded  or  passenger  is  unable  to  observe  any 
vacant  seats;  Baltimore  &  P.  R.  Co.  v.  Jean,  98  Md.  549,  57  Atl.  540,  holding 
it  not  per  se  contributory  negligence  for  passenger  to  go  to  platform  where 
train  slows  up  and  conductor  enters  car  and  twice  calls  "all  out"  for  named 
station,  the  passenger  not  acting  imprudently  or  recklessly. 

Cited  in  footnote  to  Florida  C.  &  P.  R.  Co.  v.  Sullivan,  61  L.  R.  A.  410,  which 
denies  negligence  of  white  passenger  in  riding  in  car  set  apart  for  negroes. 

Cited  in  note  (16  L.  R.  A.  631)  on  passengers  riding  in  baggage  or  express  car 
as  contributory  negligence. 

6  L.  R.  A.  708,  FALLON  v.  WORTHINGTON,  13  Colo.  559,  16  Am.  St.  Rep.  231, 

22  Pac.  960. 
Vendor's    lien    not    Interest    In    property. 

Cited  in  Griffin  v.  Seymour,  15  Colo.  App.  491,  63  Pac.  809,  holding  grantor's 
lien  not  interest  in  land  supporting  mechanic's  lien. 

Distinguished  in  Green  v.  Daniels,  53  C.  C.  A.  381,  115  Fed.  451,  holding  inter- 
est in  land  of  vendor  retaining  title  vendible  under  execution. 
Estoppel  In  pals. 

Cited  in  Lewis  v.  Jerome,  44  Colo.  471,  130  Am.  St.  Rep.  131,  99  Pac.  562, 
holding  heirs  who  with  knowledge  of  transaction  keep  fact  of  their  heirship  con- 
cealed while  widow,  who  is  administratrix,  takes  conveyance  from  third  party 
under  contract  with  deceased  and  sells  land  and  converts  money,  estopped  after 
administration  closed  to  sue  such  third  party  for  damages  for  unlawful  con- 
veyance. 
Property  subject  to  sale  under  execution. 

Distinguished  in  Reed  v.  Munn,  80  C.  C.  A.  215,  148  Fed.  748,  holding,  under 
statute,  equ  Stable  interest  of  claimants  to  mining  location  under  trust  agreement 
for  adjustment  of  conflicting  claims,  subject  to  seizure  and  sale  under  execution. 

6  L.  R.  A.  713,  Ex  parte  HARRIS,  26  Fla.  77,  23  Am.  St.  Rep.  548,  7  So.  1. 
When   judge   disqualified. 

Cited  in  State  ex  rel.  Perez  v.  Wall,  41  Fla.  465,  49  L.  R.  A.  549,  footnote 
p.  548,  79  Am.  St.  Rep.  195,  26  So.  1020,  holding  judge  cannot  sit  where  wife's 
niece's  husband  interested;  Bryan  v.  State.  41  Fla.  657,  26  So.  1022,  holding  bias 
or  prejudice  against  accused  does  not  disqualify  judge. 

Cited  in  footnotes  to  Meyer  v.  San  Diego,  41  L.  R.  A.  762,  which  holds  judge 
owning  land  in  city  disqualified  to  sit  in  suit  contesting  validity  of  contract  to 
issue  city  bonds;  First  Nat.  Bank  v.  McGuire,  47  L.  R.  A.  413,  which  holds  judge 
disqualified  to  try  case  in  which  plaintiff  is  corporation  of  which  his  wife  is  a 
shareholder. 


6  L.R.A.  713]  L.  R.  A.  CASES  AS  AUTHORITIES.  117* 

Cited  in  notes   (30  Am.  St.  Rep.  153)   on  disqualification  of  judges;    (79  Ain. 
St.  Rep.  199,  200,  201)   on  affinity  as  disqualification  of  judge. 
Hit:  hi    of  accused   to   bail. 

Cited  in  note  (8  Eng.  Rul.  Cas.  110)  on  right  of  accused  to  bail. 

6  L.  R.  A.  714,  FORD  v.  JUDSONIA  MERCANTILE  CO.  52  Ark.  426,  20  Am. 
St.  Rep.  192,  12  S.  W.  876. 

Report  of  decision  as  to  right  of  secured  creditor  to  retain  security  in  Taylor 
v.  Judsonia  Mercantile  Co.  56  Ark.  462,  19  S.  W.  1065. 
Conflict    of   jurisdiction;    effect   of    prior    possession. 

Cited  in  Walker  v.  George  Taylor  Commission  Co.  56  Ark.  2,  18  S.  W.  1056; 
holding  property  in  receiver's  hands  not  subject  to  attachment;  Gilkerson-Sloss 
Commission  Co.  v.  Carnes,  56  Ark.  417,  19  S.  W.  1061,  holding  that  equity  will 
not,  to  avoid  multiplicity  of  suits,  enjoin  execution  of  attachments. 

6  L.  R.  A.  715,  GARNER  v.  WRIGHT,  52  Ark.  385,  12  S.  W.  785. 
Rule  as  to  prevailing?  law  in  absence  of  proof. 

Cited  in  Brown  v.  Wright,  58  Ark.  26,  21  L.  R.  A.  473,  22  S.  W.  1022,  holding 
in  absence  of  proof  as  to  law  of  Texas,  rules  of  common  law  will  not  be  presumed 
to  exist  there;  Johnson  v.  State,  60  Ark.  312,  30  S.  W.  31,  holding  common  law 
not  be  presumed  to  exist  in  Indian  territory;  Pyeatt  v.  Powell,  2  C.  C.  A.  37 1? 
10  U.  S.  App.  200,  51  Fed.  555,  holding  that  in  Federal  Courts  in  Indian  terri- 
tory, rule  of  decision  in  absence  of  statute  or  proof  is  common  law;  Gatton  v. 
Chicago,  R.  I.  &  P.  R.  Co.  95  Iowa,  136,  28  L.  R.  A.  564,  63  N.  W.  589,  holding 
that  no  Federal  common  law  exists  as  distinguished  from  common  law  of  the 
several  states;  Kennebrew  v.  Southern  Automatic  Electric  Shock  Mach.  Co.  106 
Ala.  379,  17  So.  545,  holding  that  in  absence  of  proof  of  laws  of  other  state 
or  judicial  knowledge  of  its  origin,  law  of  forum  prevails;  Burke  v.  Sharp.  88 
Ark.  443,  115  S.  W.  145,  holding  on  attachment  of  property  in  one  state  in 
suit  for  money  advanced  for  use  there,  the  laws  of  such  state  determine  effect 
of  defendant's  possession,  though  bill  of  sale,  under  which  an  intervenor  claimsr 
was  made  in  another  state;  Mathieson  v.  St.  Louis  &  S.  F.  R.  Co.  219  Mo.  551, 
118  S.  W.  9,  holding  court  cannot  presume  common  law  is  in  force  in  another 
state  unless  such  state  has  taken  common  law  as  basis  of  its  jurisprudence. 

Cited  in  notes  (21  L.  R.  A.  473)  on  presumption  as  to  law  of  other  states; 
(64  L.R.A.  360)  on  conflict  of  laws  as  to  chattel  mortgages;  (67  L.R.A.  41,  58) 
on  how  case  determined  when  proper  foreign  law  not  proved;  (34  L.R.A.  (N.S.) 
265,  272)  on  determination  of  case  properly  governed  by  unproved  foreign  law^ 
(113  Am.  St.  Rep.  879)  on  proof  of  foreign  laws  and  their  effect. 
Validity  of  chattel  mortgage. 

Cited  in  Forrester  v.  Kearney  Nat.  Bank,  49  Neb.  661,  68  N.  W.  1059,  holding 
that  chattel  mortgage  becomes  valid  as  to  creditors  as  of  date  of  filing  or  taking 
possession  by  mortgagee;  Little  v.  National  Bank,  97  Ark.  61,  133  S.  W.  106, 
holding  that  if  mortgagee  of  chattels  takes  possession  before  other  right  or  lien 
attaches,  invalidity  of  mortgage  because  of  power  to  sell  in  course  of  trade  is- 
cured;  Lee  Wilson  &  Co.  v.  Crittenden,  98  Ark.  384,  135  S.  W.  885,  holding  that 
valid  chattel  mortgage  may  be  created  verbally;  Frick  Co.  v.  Oats,  20  Okla.  482r 
94  Pac.  682,  holding  mortgagee  who  after  condition  broken  takes  possession  of 
mortgaged  property  has  superior  title  as  against  subsequent  execution  creditor, 
though  as  to  creditors  mortgage  is  void  because  not  filed  for  record;  Gaertner 
v.  Elevator  Co.  104  Minn.  471,  116  N.  W.  945,  holding  delivery  of  possession 
cures  irregularity  in  description  in  chattel  mortgage. 


1175  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  718 

Cited  in  note  (137  Am.  St.  Rep.  491)  on  effect  of  failure  to  execute  and 
record  chattel  mortgage  as  prescribed  by  statute. 

6  L.  R.  A.  716,  AYER  v.  WEEKS,  65  N.  H.  248,  23  Am.  St.  Rep.  37,  18  Atl.  1108. 
Consent    not    sufficient    to    confer    jurisdiction. 

Cited  in  Smith  v.  Hammond,  68  N.  H.  364,  44  Atl.  519,  holding  that  partners 
cannot   assign   individual   property  of  nonresident   consenting   partner   so  as   to 
confer  jurisdiction  not  theretofore  existing. 
Domicil  or  residence. 

Cited  in  Smith  v.  Stanley,  67  N.  H.  328,  36  Atl.  254,  holding  temporary  resi- 
dence not  sufficient  to  confer  jurisdiction  in  insolvency;  Schmidt  v.  Ellis,  69 
N.  H.  98,  38  Atl.  382,  holding  that  insolvency  court  has  no  jurisdiction  of  non- 
resident debtors;  Wood  v.  Roeder,  45  Neb.  315,  63  N.  W.  853,  holding  residing 
at  different  place  not  per  se  constitute  change  of  domicil. 

Cited  in  notes  (9  Eng.  Rul.  Cas.  808)   on  maintenance  of  original  domicil  until 
establishment  of  new  domicil;    (40  L.R.A.(N.S.)  989,  990)   as  to  whether  domicil 
is  lost  by  abandonment  without  intention  to  return  before  acquiring  new  one. 
Inadmissible    declaration. 

Cited  in  Fulham  v.  Howe,  62  Vt.  396,  20  Atl.  101,  upholding  refusal  to  admit 
declaration  as  to  domicil  not  made  before  controversy  arose. 

6  L.  R.  A.  717,  GRIMM'S  APPEAL,  131  Pa.  199,  17  Am.  St.  Rep.  796,  18  Atl. 

1061. 
Proof    of    marriage. 

Cited  in  Com.  v.  Haylow,  17  Pa.  Super.  Ct.  546,  holding  cohabitation  under 
agreement  for  future  marriage,  not  marriage;  Wertzel  v.  Central  Lodge,  No.  19, 
A.  O.  U.  W.  11  Pa.  Co.  Ct.  270,  1  Pa.  Dist,  R.  145,  9  Lane.  L.  Rev.  245,  holding 
continued  cohabitation  and  reputation  as  husband  and  wife  raises  no  presumption 
of  marriage  where  one  party  was  already  married  at  its  origin;  Strauss's  Estate, 
14  Pa.  Co.  Ct.  596,  3  Pa.  Dist.  R.  427,  34  W.  N.  C.  479,  as  to  presumption  that 
cohabitation  illicit  in  origin  continues  so;  Brisbin  v.  Huntington,  128  Iowa,  169r 
103  N.  W.  144,  5  A.  &  E.  Ann.  Cas.  931,  holding  neither  consent  nor  intention  to 
sustain  relation  of  husband  and  wife  can  be  inferred  from  cohabitation  alone: 
Thewlis's  Estate,  217  Pa.  309,  66  Atl.  519,  15  Pa.  Dist.  R.  362,  on  presumption 
of  marriage  where  parties  in  good  faith  continue  to  live  together  as  husband  and 
wife  after  removal  of  only  obstacle  in  way  of  valid  marriage;  Com.  v.  Gamble, 
36  Pa.  Super.  Ct.  151,  holding  presumption  of  marriage  arises  from  cohabitation 
and  reputation  of  marriage;  Wallace's  Estate,  40  Pa.  Super.  Ct.  598,  holding 
relation  shown  to  be  illicit  at  commencement  does  not  raise  presumption  of 
marriage. 

Cited  in  footnote  to  Nims  v.  Thompson,  17  L.  R.  A.  847,  which  holds  marriage 
shown  by  evidence. 

Cited  in  notes    (14  L.R.A.  364)    on  cohabitation  as  proof  of  marriage  where 
it  begins  unlawfully;    (124  Am.   St.  Rep.  109)   on  common-law   marriages;    (17 
Eng.  Rul.  Cas.  171.  176)  on  what  constitutes  a  valid  marriage. 
Inheritance  by  surviving  party  to  void  marriage. 

Cited  in  note  (96  Am.  St.  Rep.  271)  on  right  of  surviving  party  to  void  marriage 
to  estate  of  other  party. 

6  L.  R.  A.  718,  BAKER  v.  BRASLIN,  16  R.  I.  635,  18  Atl.   1039. 
Survivability    of   actions. 

Cited  in  Brown  v.  Kellogg,  182  Mass.  298,  65  N.  E.  378,  holding  libel  action 
against  partners  not  abated  by  death  of  one. 


6  L.R.A.  718]  L.  R.  A.  CASES  AS  AUTHORITIES.  1176 

Cited  in  footnote  to  Perkins  v.  Stein,  20  L.  R.  A.  861,  which  holds  that  action 
for  negligently  driving  over  person  will  survive. 
Torts    of    -wife. 

Cited  in  McElroy  v.  Capron,  24  R.  I.  563,  54  Atl.  44,  holding  under  statute, 
husband  not  liable  for  torts  of  wife  unless  be  participates  therein,  when  he  is 
jointly  liable. 

Cited  in  footnote  to  Henley  v.  Wilson,  58  L.  R.  A.  941,  which  sustains  hus- 
band's common-law  liability  for  wife's  torts. 

Cited  in  notes  (30  L.R.A.  521)  on  liability  of  husband  and  wife  for  wife's 
libel  and  slander;  (131  Am.  St.  Rep.  148)  on  liability  of  married  women  for 
torts. 

6  L.  R.  A.  719,  O'REILLY  v.  NEW  YORK  &  N.  E.  R.  CO.  16  R.  I.  395,   19 

Atl.  244. 
Pendency   of   other  suit. 

Cited  in  footnote  to  Sulz  v.  Mutual  Reserve  Fund  Life  Asso.  28  L.  R.  A.  379, 
which  holds  pending  action  on  policy  by  administrator  in  staie  where  insured 
died  bar  to  action  by  widow  in  state  of  home  office. 
Conflict    of    laws. 

Cited  in  Hancock  Nat.  Bank  v.  Farnum,  20  R.  I.  471,  40  Atl.  341,  holding  action 
to  enforce  stockholder's  liability  not  maintainable  in  other  state. 

Cited  in  notes   (15  L.  R.  A.  584)   on  rights  of  action  for  causing  death  accru- 
ing under  foreign  statute;    (56  L.  R.  A.  204,  210,  222)   on  conflict  of  laws  as  to 
action  for  death  or  bodily  injury. 
\v  h«-ii   statutory  cause  of  action  is  penal. 

Cited  in  Matheson  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co.  61  Kan.  670,  60  Pac. 
747,  holding  statute  providing  for  forfeiture  of  fixed  sum  for  negligently  causing 
death,  penal. 

Distinguished  in  Gardner  v.  New  York  &  N.  E.  R.  Co.  17  R.  I.  792,  24  Atl. 
831,  holding  statute  giving  action  for,  and  limiting  recovery  to,  loss  sustained  by 
negligence,  not  penal;  Aylsworth  v.  Curtis,  19  R.  I.  523,  33  L.  R.  A.  112,  61  Am. 
St.  Rep.  785,  34  Atl.  1109,  holding  action  for  twice  value  of  stolen  article  not 
restored,  not  penal. 

<5  L.  R.  A.  721,  DICKINSON  v.  EICHORN,  78  Iowa,  710,  43  N.  W.  620. 
Res   judicata. 

Cited  in  State  ex  rel.  Vidal  v.  Lamoureux,  3  Wyo.  733,  30  Pac.  243,  holding 
legality  of  incorporation  adjudicated  in  mandamus  not  reviewable  in  quo  war- 
ranto  action,  though  parties  nominally  different;  McConkie  v.  Remley,  119  Iowa, 
517,  93  N.  W.  505,  holding  adjudication  deciding  question  whether  liquor  license 
law  was  in  force  in  certain  place,  conclusive  on  all  liquor  sellers. 
Actions  to  enjoin  sale  of  liquor. 

Cited  in  Steyer  v.  McCauley,  102  Iowa,  107,  71  N.  W.  194,  holding  liquor  in- 
junction and  contempt  proceeding  pending  thereunder  bar  to  another  citizen's 
action  for  injunction  for  similar  offense;  Carter  v.  Bartel,  110  Iowa,  213,  81  N. 
W.  462,  holding  permanent  injunction  restraining  firm  from  liquor  selling  effect- 
ive against  members  after  change  in  firm  name;  Cameron  v.  Tuckef,  104  Iowa, 
214,  73  N.  W.  601,  holding  injunction  collusively  obtained  no  bar  to  subsequent 
injunction  against  liquor  nuisance;  Brennan  v.  Roberts,  125  Iowa,  617.  101  X.  W. 
460,  holding  decree  restraining  sale  of  liquor  res  adjudicata  to  another  suit  by  any 
person  against  same  place  and  defendant,  though  decree  is  obtained  by  nonresi- 
dent attorney  and  not  by  county  attorney. 


1177  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  724 

Distinguished  in  Carter  v.  Steyer,  93  Iowa,  535,  61  N.  W.  956,  holding  injunc- 
tion no  bar  to  injunction  against  liquor  nuisance  on  different  premises  owned  by 
codefendant  not  previously  enjoined. 
Injunction   of  liquor  nuisance. 

Cited  in  Bartel  v.  Hobson,  107  Iowa,  647,  78  N.  W.  689,  holding  violation  of 
decree  for  injunction  against  liquor  nuisance,  rendered  in  defendant's  presence, 
contempt,  though  no  order  issued. 

Cited  in  footnotes  to  Laugel  v.  Bushnell,  58  L.  R.  A.  266,  which  sustains  or- 
dinance declaring  places  where  hop  ale,  hop  and  malt  meal  and  cider  sold, 
nuisances;  De  Blane  v.  New  Iberia,  56  L.  R.  A.  285,  which  denies  city's  power  to 
arbitrarily  declare  particular  licensed  saloon  a  nuisance;  Kirkland  v.  State,  65 
L.R.A.  76,  which  holds  that  legislature  may  provide  for  destruction  of  liquor  kept 
for  illegal  sale,  without  granting  owner  jury  trial. 

Cited  in  note   (7  L.  R.  A.  299)  on  abatement  of  liquor  nuisance. 
Plaintiff  represents  public. 

Cited  in  Geyer  v.  Douglass,  85  Iowa,  101,  52  N.  W.  Ill,  holding  that  state  or 
citizen  may  be  substituted  for  plaintiff  in  action  to  enjoin  liquor  nuisance  dying 
pending  appeal;  Cameron  v.  Kapinos,  89  Iowa,  564,  56  N.  W.  677,  holding  that 
plaintiff  in  action  to  enjoin  liquor  nuisance  may  maintain  action  to  make  fine 
lien  on  premises. 

6  L.  R.  A.  724,  PEOPLE'S  BANK  v.  FRANKLIN  BANK,  88  Tenn.  299,  17  Am. 

St.  Rep.  884,  12  S.  W.  716. 
Recovery  of  money   pnid  on   forgred   check. 

Cited  in  Indiana  Nat.  Bank  v.  First  Nat.  Bank,  9  Ind.  App.  188,  36  N.  E.  382, 
holding  that  ground  for  making  indorsing  bank  liable  was  that  its  indorsement 
in  part  brought  about  failure  to  discover  forgery;  Canadian  Bank  of  Commerce 
v.  Bingham,  30  Wash.  495,  60  L.  R.  A.  959,  71  Pac.  43,  holding  that  drawee  bank 
may  recover  amount  of  forged  check  paid  to  bank  cashing  it  without  inquiry  or 
requiring  identification;  Germania  Bank  v.  Boutell,  60  Minn.  192,  27  L.  R.  A.  641, 
51  Am.  St.  Rep.  519,  62  X.  W.  327,  holding  bank  paying  forged  check  of  depositor 
cannot  recover  from  bona  fide  holder  to  whom  paid;  First  Nat.  Bank  v.  First 
Xat.  Bank,  58  Ohio  St.  215,  41  L.  R.  A.  586,  65  Am.  St.  Rep.  748,  50  N.  E.  723, 
holding  genuineness  of  names  of  indorsers  but  not  of  drawer  guaranteed  by  in- 
dorsing note  "for  collection;"  Deposit  Bank  v.  Fayette  Nat.  Bank,  90  Ky.  19, 

7  L.  R.  A.  851,  13  S.  W.  339,  holding  where  parties  are  equally  innocent,  drawee 
paying  amount  of  forged  check  must  suffer;  Ford  v.  People's  Bank,  74  S.  C.  183, 
10  L.R.A.(N.S.)  68,  114  Am.  St.  Rep.  986,  54  S.  E.  204,  7  A.  &  E.  Ann.  Cas.  744, 
holding  holder  of  forged  draft  can  retain  money  obtained  thereon  only   where 
he  can  show  whole  responsibility  of  determining  validity  of  signature   was  on 
drawee  and  negligence  of  drawee  not  lessened  by  any  disregard  of  duty  on  hold- 
er's  part,   and   also  citing  annotation   on   this  point:    Wellington  Nat.   Bank  v. 
Robbins,  71  Kan.  750,  114  Am.  St.  Rep.  523,  81  Pac.  487,  holding  drawee  which 
has  paid  check  which  another  had  purchased,  containing  false  indorsement,  can 
recover  from  such  purchaser  on  such  forged  instrument;   Greenwald  v.  Ford,  21 
S.  D.  39,  109  N.  W.  516;  State  Bank  v.  First  Nat.  Bank,  87  Neb.  355,  29  L.R.A. 
(N.S.)   103,  127  N.  W.  244, — to  the  point  that  bank  cashing  check  drawn  on  an- 
other bank  is  bound  to  use  all  means  at  its  command  to  ascertain  genuineness  of 
check;  Bank  of  Williamson  v.  McDowell  County  Bank,  66  W.  Va.  552.  36  L.R.A. 
(N.S.)   609,  66  S.  E.  761,  to  the  point  that  if  party  take  check  payable  to  his 
order  from  stranger  without  inquiry,  and  give  it  currency  and  credit  by  indorsing 
it  before  receiving  payment,  the  drawee  may  recover  back  money. 

Cited  in  notes   (27  L.R.A.  637)  on  drawee's  duty  to  know  signature  of  bank; 


6  L.R.A.  724]  L.  R.  A.  CASES  AS  AUTHORITIES.  1178 

(10  L.R.A.  (N.S.)  55,  58,  60,  65,  66,  72)  on  right  of  drawee  to  recover  money  paid 
on  forged  check  or  draft;  (94  Am.  St.  Rep.  646)  on  liability  of  one  receiving 
payment  of  check  through  forged  indorsement. 

Distinguished  in  Farmers'  &  M.  Bank  v.  Bank  of  Rutherford,  115  Tenn.  67,  112 
Am.  St.  Rep.  817,  88  S.  W.  939,  holding  drawee  bank  cannot  recover  from  remote 
indorser  where  draft  is  to  one  or  bearer,  and  such  drawee  pays  draft  and  holds 
it  for  thirty  days  or  more,  there  being  no  negligence  on  part  of  indorser. 

Disapproved  in  First  Nat.  Bank  v.  Bank  of  Wyndmere,  15  N.  D.  303,  10  L.R.A. 
(N.S.)  56,  125  Am.  St.  Rep.  588,  108  N.  W.  546,  holding  drawee  may  on  discovery 
of  forgery,  where  he  has  paid  check  to  purchaser  without  detecting  forgery,  re- 
cover money  so  paid,  though  purchaser  was  good  faith  holder,  if  he  has  not  been 
misled  or  prejudiced  by  drawee's  failure  to  detect  forgery. 

6  L.  R.  A.  727,  HANNA  v.  CHATTANOOGA  &  N.  R.  CO.  88  Tenn.  310,  12  S.  W. 

718. 
Liability    of   lessor    of   railroad    for    negligence    of    lessee. 

Cited  in  Arrowsmith  v.  Nashville  &  D.  R.  Co.  57  Fed.  172,  holding  lessor 
under  valid  lease  not  liable  for  injury  to  lessee's  passenger  due  to  lessee's  negli- 
gence; Hukill  v.  Mayville  &  B.  S.  R.  Co.  72  Fed.  755,  holding  that  servant  of 
lessee  under  void  lease  cannot  recover  from  lessor  for  injury  due  to  lessee's  neg- 
ligence; Travis  v.  Kansas  City,  S.  &  G.  R.  Co.  119  La.  491,  10  L.R.A. (N.S.)  1189, 
121  Am.  St.  Rep.  526,  44  So.  274.  holding  employee  of  lessee  cannot  recover  from 
lessor  railroad  for  injuries  in  failing  to  have  yard  properly  lighted. 

Cited  in  note   (44  L.  R.  A.  753)    on  liability  of  lessor  of  railroad  for  injuries 
caused  by  negligence  of  another  company  using  road  under  lease,  license,  or  other 
contract. 
Liability  of  carrier   furnishing  cars   to  shipper. 

Cited  in  Roddy  v.  Missouri  P.  R.  Co.  104  Mo.  249,  12  L.  R.  A.  750,  24  Am. 
St.  Rep.  333,  15  S.  W.  1112,  holding  that  carrier  under  contract  to  furnish  cars 
to  quarryman  must  use  ordinary  care  to  provide  such  as  are  reasonably  safe. 
Negligence   of   fellow   servants. 

Cited  in  note  (46  L.  R.  A.  38,  67)  on  right  of  servant  to  recover  damages  from 
persons  other  than  his  master  for  injuries  received  in  performance  of  his  duties. 
Relation  of  master  and  servant. 

Cited  in  note  (22  Am.  St.  Rep.  478)  as  to  when  relation  of  master  and  servant 
-exists. 
Liability  for  negligence   of  Independent   contractor. 

Cited  in  note  (76  Am.  St.  Rep.  411)  on  liability  for  negligence  of  independent 
contractors  performing  railroad  work. 

6  L.  R.  A.  728,  LACY  v.  GETMAN,  119  N.  Y.  109,  16  Am.  St.  Rep.  806,  23  N.  E. 

452- 
•Contracts  for  personal  service  for  specified  term. 

Distinguished  in  effect  in  Walton  v.  Rafel,  7  Misc.  667,  28  N.  Y.  Supp.   10, 
holding  contract  in  terms  binding  on  legal  representatives  assignable. 
Termination  by  death   of  party. 

Cited  in  Arming  v.  Steinway,  35  Misc.  222,  71  N.  Y.  Supp.  810,  holding  con- 
tract to  teach  pupils  selected  by  employer  terminated  by  his  death ;  Blakdy 
v.  Sousa,  197  Pa.  321,  80  Am.  St.  Rep.  821,  47  Atl.  286,  holding  contract  be- 
tween manager  and  leader  of  band  terminated  by  manager's  death;  Mason  v. 
Secor,  76  Hun,  180,  27  N.  Y.  Supp.  570,  and  Greenburg  v.  Early,  4  Misc.  100, 
23  N.  Y.  Supp.  1009,  holding  that  contract  of  employment  for  fixed  term  ends 


1179  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  731 

on  dissolution  of  employing  copartnership  by  member's  death;  Skinner  v.  Busse, 
38  Misc.  2G6,  77  N.  Y.  Supp.  560,  holding  relation  of  attorney  and  client  ter- 
minated by  client's  death. 

Cited  in  notes  (65  L.R.A.  465;  5  L.R.A.(N.S.)  1002)  on  termination  of  employ- 
ment by  master's  death;  (21  L.R.A.(N.S.)  917,  921,  922,  924)  on  termination  of 
contract  of  employment  by  death  of  party. 

Distinguished  in  effect  in  Russell  v.  Buckhout,  87  Hun,  47,  34  N.  Y.  Supp.  271, 
holding  contract  for  erection  of  building  on  decedent's  land  not  dissolved  by 
his  death. 
What   excuses   nonperforinance. 

Cited  in  McClellan  v.  Harris,  7  S.  D.  451,  64  N.  W.  522,  holding  that  unavoid- 
able illness  excuses  nonperformance  of  contract  to  labor  for  specified  term; 
Jerome  v.  Queen  City  Cycle  Co.  163  N.  Y.  356,  57  N.  E.  485,  holding  that 
servant's  absence  contrary  to  master's  reasonable  commands  justifies  discharge; 
Edgecomb  v.  Buckhout,  146  N.  Y.  339,  28  L.  R.  A.  818,  40  N.  E.  991,  holding 
marriage  of  housekeeper,  not  preventing  performance  of  services,  no  ground  for 
discharge. 

Cited  in  notes  (24  L.R.A.(N.S.)  815)  on  duty  to  obey  master's  orders;  (17  Eng. 
Rul.  Cas.  211)  on  right  to  discharge  servant  for  long  illness. 

Distinguished  in  effect  in  Hart  v.  Myers,  25  Abb.  N.  C.  480,  12  N.  Y.  Supp.  140, 
holding  illness  of  one  contracting  to  render  services  as  stockbroker  not  excuse 
nonperformance. 

6  L.  R.  A.  731,  WEIGHT  v.  MUTUAL  BEN.  LIFE  ASSO.  118  N.  Y.  237,  16  Am. 

St.  Rep.  749,  28  N.  Y.  S.  R.  817,  23  N.  E.  186. 
Limitation  by  contract. 

Cited   in  Matthews   v.   American   Cent.   Ins.   Co.   9   App.   Div.   341,   41   N.   Y. 
£?upp.   304,   holding  that  parties   to   insurance   contract  may  limit  time   within 
which  rights  thereunder  are  to  be  asserted. 
Defense    of    fraud. 

Followed  in  Kansas  Mut.  L.  Ins.  Co.  v.  Whitehead,  123  Ky.  29,  93  S.  W.  609. 
13  A.  &  E.  Ann.  Cas.  301,  holding  incontestability  clause  after  two-year  period 
precludes  forfeiture  thereafter  for  fraudulent  representations  as  to  health. 

Cited  in  Massachusetts  Ben.  Life  Asso.  v.  Robinson,  104  Ga.  275,  42  L.  R.  A. 
270,  30  S.  E.  918,  holding  that  insurer  cannot  set  up  fraudulent  representation 
after  three  years,  contrary  to  incontestable  clause  in  policy;  Patterson  v.  Natural 
Premium  Mut.  L.  Ins.  Co.  100  Wis.  127,  42  L.  R.  A.  260,  69  Am.  St.  Rep.  899, 
75  N.  W.  980,  holding  fraudulent  intent  or  concealment  by  insured  as  to 
health  covered  by  incontestable  clause;  Bates  v.  United  Life  Ins.  Asso.  68  Hun, 
146,  22  N.  Y.  Supp.  626,  holding  that  defense  that  material  statements  in  appli- 
cation were  false,  cannot  be  set  up  after  two  years  contrary  to  provision  in 
policy  that  it  shall  be  indisputable  after  that  period;  Murray  v.  State  Mut. 
Life  Assur.  Co.  22  R.  I.  525,  53  L.  R.  A.  743,  48  Atl.  800,  holding  that  clause 
making  policy  incontestable  for  fraud  in  application  after  two  years  merely 
provides  short  statute  of  limitations;  Clement  v.  New  York  L.  Ins.  Co.  101 
Tenn.  30,  42  L.  R.  A.  249,  70  Am.  St.  Rep.  650,  46  S.  W.  561,  holding  that 
stipulation  that  policy  shall  be  incontestable  after  one  year  limits  time  in  which 
insurer  may  set  up  fraud  to  one  year;  Peoria  Life  Asso.  v.  Hines,  132  111.  App. 
650,  holding  incontestability  clause  bars  defense  of  misstatements  in  application 
as  to  previous  health;  Austin  v.  Mutual  Reserve  Fund  Life  Asso.  132  Fed.  560, 
on  validity  of  policy  delivered  contrary  to  provisions  therein;  Prudential  Ins.  Co. 
v.  Mohr,  185  Fed.  938,  to  the  point  provision  that  policy  of  insurance  shall  be  in- 
contestible  for  fraud  after  specified  time,  not  unreasonably  short  is  valid;  Citi- 


6  L.R.A.  731]  L.  R.  A.  CASES  AS  AUTHORITIES.  1180 

zens'  L.  Ins.  Co.  v.  McClure,  138  Ky.  144,  27  L.R.A.(X.S.)  1028,  127  S.  W.  749, 
holding  incontestability  clause  after  period  of  year  if  premiums  are  paid,  pre- 
cludes defense  of  fraudulent  representation  as  to  prior  health,  where  premium 
for  second  year  is  paid  and  policy  renewed;  Reagan  v.  Union  Mut.  L.  Ins.  Co. 
189  Mass.  556,  2  L.R.A.  (X.S.)  823,  109  Am.  St.  Rep.  659,  76  N.  E.  217,  4  A.  &  E. 
Ann.  Cas.  362,  holding  provision  in  policy  making  it  incontestable  for  fraud  from 
date  of  policy  invalid;  Hansen  v.  Jersey  City,  79  N.  J.  L.  399,  71  Atl.  1116,  hold- 
ing that  agreement  in  policy  that  it  "shall  be  incontestable,  except  for  nonpay- 
ment of  premiums,  two  years  from  date,"  limits  all  defenses  including  fraudu- 
lent representations  as  to  physical  conditions;  Central  Trust  Co.  v.  Fidelity  Mut. 
L.  Ins.  Co.  45  Pa.  Super.  Ct.  317,  holding  that  provision  in  policy  that  if  policy 
is  continued  in  force  for  three  years  it  shall  be  incontestable  except  for  nonpay- 
ment of  premiums  is  valid. 

Cited  in  notes  (42  L.R.A.  247,  249)  incontestable  clause  as  preventing  defense 
of  fraud;  (52  Am.  St.  Rep.  553)  on  defense  of  fraud  to  mutual  or  membership  life 
or  accident  insurance. 

Distinguished  in  Holland  v.   Supreme  Council,  O.   C.  F.  54  N.  J.  L.  496,  2.r> 
Atl.  367,  holding  fraudulent  representations  good  defense  where  certificate  pro- 
vides fraud   and   death  of  member  during  suspension  shall   forfeit  beneficiary's 
rights. 
Incontestable   clause   applies   to   reinstatement. 

Cited  in  Teeter  v.  United  Life  Ins.  Asso.  159  N.  Y.  417,  54  N.  E.  72,  Affirming 
11  App.  Div.  263,  42  N.  Y.  Supp.  119,  holding  that  provision  in  original  con- 
tract that  policy  shall  be  indisputable  after  two  years  applies  to  reinstatement. 
Insnrable  Interest. 

Cited  in  Steinback  v.  Diepenbrock,  158  N.  Y.  29,  44  L.  R.  A.  419,  70  Am.  St. 
Rep.  424,  52  N.  E.  662,  holding  that  one  having  no  insurable  interest  in  life  of 
another  may  take  assignment  of  policy  and  recover  thereon;  Smith  v.  People's 
Mut.  Ben.  Soc.  64  Hun,  536,  19  N.  Y.  Supp.  432,  holding  that  assignee  of  policy_ 
issued  to  son-in-law  of  insured  may  recover  where  relationship  and  assignment 
were  known  by  company  and  policy  contained  incontestable  clause,  time  limit 
in  which  had  expired;  Clement  v.  New  York  L.  Ins.  Co.  101  Tenn.  38,  42  L.  R.  A. 
252,  70  Am.  St.  Rep.  650,  46  S.  W.  561,  holding  incontestable  clause  not  protect 
policy  assigned  to  one  without  insurable  interest  in  pursuance  of  conspiracy  to 
evade  rule  against  wagering  contracts;  Exchange  Bank  v.  Loh,  104  Ga.  468,  44 
L.  R.  A.  381,  31  S.  E.  459,  holding  creditor  may  insure  life  of  debtor  as  a  pro- 
tection against  loss;  McQuillan  v.  Mutual  Reserve  Fund  Life  Asso.  112  Wis.  675, 
holding  incontestable  clause  not  prevent  forfeiture  by  creditor  to  whom  policy 
assigned,  of  sum  in  excess  of  amount  due  him;  Reed  v.  Provident  Sav.  L.  Assur. 
Soc.  190  N.  Y.  119,  82  X.  E.  734,  holding  creditor  has  insurable  interest  in  life 
of  debtor. 

Cited  in  notes  (5  L.RA.(N.S.)  749)  on  defense  of  want  of  insurable  interest,  as 
affected  by  incontestable  clause;  (87  Am.  St.  Rep.  511)  on  amount  recoverable 
from  insurer  by  creditor;  (128  Am.  St.  Rep.  321)  on  life  insurance  in  favor  of 
persons  having  no  insurable  interest;  (13  Eng.  Rul.  Cas.  400)  on  insurable  in- 
terest in  life. 
Effect  of  Incontestable  clanse  on  antl-snlclde  clause. 

Cited  in  Royal  Circle  v.  Achterrath,  204  111.  560,  63  L.  R.  A.  456,  98  Am.  St. 
Rep.  224,  68  N.  E.  492,  holding  that  "incontestable  clause"  in  mutual  benefit 
certificate,  not  excepting  death  by  suicide,  precludes  society  from  taking  advan- 
tage of  clause  relieving  it  from  liability  in  such  case:  Supreme  Court  of  Honor  v. 
Updegraff,  68  Kan.  478,  75  Pac.  477,  1  A.  &  E.  Ann.  Cas.  309,  holding  a  clause  in 


1181  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A..  733 

constitution  that  policy  shall  be  incontestable  after  two  years  precludes  defense 
of  nonliability  clause  in  policy  for  suicide,  where  suicide  occurs  after  lapse  of 
two-year  period. 

6  L.  R,  A.  733,   CIRIACK  v.  MERCHANTS  WOOLEN  CO.  151  Mass.   152,  21 

Am.  St.  Rep.  438,  23  N.  E.  829. 
Master's  duty  to  warn  or  instruct. 

Cited  in  Pratt  v.  Prouty,  153  Mass.  334,  26  N.  E.  1002,  holding  master  not 
negligent  unless  he  failed  to  give  information  of  danger  which  servant  could  not 
be  presumed  to  know;  Rood  v.  Lawrence  Mfg.  Co.  155  Mass.  593,  30  N.  E.  174, 
holding  that  master  need  not  instruct  servant  set  to  working  elevator,  as  to 
obvious  danger;  Patnode  v.  Warren  Cotton  Mills,  157  Mass.  289,  34  Am.  St. 
Rep.  275,  32  N.  E.  161,  to  point  failure  to  instruct  young,  inexperienced,  or  dull 
servant,  negligence;  Riehstain  v.  Washington  Mills  Co.  157  Mass.  541,  32  N.  E. 
DOS,  holding  failure  to  instruct  not  negligence  when  considering  servant's  age, 
intelligence,  and  experience;  Rooney  v.  Sewall  &  D.  Cordage  Co.  161  Mass.  160, 
36  N.  E.  789,  holding  that  master  need  not  warn  experienced  servant  of  middle 
age,  of  danger  of  coming  in  contact  with  set-screw  projecting  from  revolving 
shaft;  Ruchinsky  v.  French,  168  Mass.  70,  46  N.  E.  417,  holding  that  master 
need  not  warn  adult  employee  of  ordinary  intelligence  that  if  she  put  her  hand 
between  revolving  cog-wheels  she  would  be  hurt;  O'Connor  v.  Whittall,  169  Mass. 
569,  48  X.  E.  844,  holding  that  servant  assumes  obvious  risk  of  having  hand 
cut  in  roller;  Lemoine  v.  Aldrich,  177  Mass.  91,  58  N.  E.  178,  holding  that 
master  need  not  warn  servant  of  danger  of  getting  cut  while  passing  under  re- 
volving shaft;  Silvia  v.  Sagamore  Mfg.  Co.  177  Mass.  479,  59  N.  E.  73,  holding 
that  master  not  negligent  in  failing  to  warn  boy  of  ordinary  intelligence  and 
fourteen  years  of  age,  of  danger  of  getting  fingers  caught  in  gearing;  Gaudet  v. 
Stansfield,  182  Mass.  454,  65  N.  E.  850.  holding  that  master  need  not  instruct 
servant  of  average  intelligence,  nineteen  years  of  age,  of  danger  of  catching 
fingers  in  revolving  roller  of  steam  mangle;  Day  v.  Achron,  23  R.  I.  630,  50 
Atl.  654  (dissenting  opinion),  majority  holding  girl  of  sixteen  accustomed  to 
operate  mangle  in  laundry  assumed  incidental  risks;  Boyd  v.  Taylor,  195  Mass. 
275,  81  N.  E.  277,  holding  master  liable  for  injury  from  calling  operator  from 
regular  work  and  setting  him  to  work  on  other  machine  without  warning  or  in- 
struction, where  operator  is  inexperienced  and  has  no  opportunity  to  become  ac- 
quainted with  risk  and  danger  is  hidden;  Bollington  v.  Louisville  &  N.  R.  Co.  125 
Ky.  192,  8  L.R.A.(X.S.)  1047,  100  S.  W.  850,  holding  boy  of  nineteen  having  some 
knowledge  and  experience,  although  slight,  assumes  risk  of  injury  from  explosion 
on  mixing  lime  and  water,  without  special  warning  or  instruction;  Doolan  v. 
Pocasset  Mfg.  Co.  200  Mass.  203,  85  X.  E.  1055,  holding  master  negligent  for 
failure  to  warn  boy  of  fifteen  of  danger  from  freight  elevator  where  boy  is 
mentally  deficient;  Ruddy  v.  George  F.  Blake  Mfg.  Co.  205  Mass.  181,  91  N.  E. 
310,  holding  that  master  is  required  to  give  warning  to  servant  where  he  orders 
him  to  use  defective  machinery;  Goto  v.  D.  W.  Pingree  Co.  205  Mass.  290.  91 
N.  E.  300,  holding  that  master  is  justified  in  giving  only  such  warnings  and  in- 
structions which  workman  of  ordinary  intelligence  woiild  require,  while  he  has 
no  notice  or  reasonable  ground  to  believe  that  employee  is  mentally  deficient; 
A.  H.  Jacoby  Co.  v..  Williams,  110  Va.  62,  65  S.  E.  491,  holding  that  master  is 
not  bound  to  warn  adult  servant  of  sound  mind  of  existence  of  dangers  that  are 
visible  and  which  he  could  not  fail  to  comprehend. 

Cited  in  footnote  to  Davis  v.   St.  Louis,   I.  M.  &  S.  R.  Co.   7  L.  R.  A.  283, 
which  holds  unappreciated  risk  not  assumed  by  youthful  employee. 

Cited  in  notes    (44  L.  R.  A.  36)    duty  of  master  to  warn  servant  of  danger; 


6  L.R.A.  733]  L.  R.  A.  CASES  AS  AUTHORITIES.  1182 

(44  L.R.A.  68)  whether  knowledge  of  danger  is  to  be  imputed  to  minor;  (1  L.R.A. 
(X.S.)  669)  on  duty  to  tell  employee  when  ordered  to  perform  special  service,  to- 
give  warning  to  coemployees;  (29  L.R.A. (N.S.)  113,  114)  on  duty  to  warn  minor 
servant  already  aware  of  dangers;  (23  Am.  St.  Rep.  165)  on  duty  to  warn  or 
instruct  minor  employee. 
Evidence  as  to  servant's  capacity. 

Cited  in  Leistritz  v.  American  Zylonite  Co.  154  Mass.  384,  28  N.  E.  275,  holding 
testimony  whether  plaintiff  was  above  or  below  average  intelligence,  inadmissi- 
ble as  not  showing  he  was  manifestly  incapable  of  understanding  risk  without: 
instruction;  Berdos  v.  Tremont  &  S.  Mills,  209  Mass.  495,  95  N.  E.  876,  Ann.  Cas. 
1912  B.  797,  holding  that  there  is  no  presumption  from  age  of  child  as  to  his; 
capacity  to  exercise  due  care,  and  the  fact  is  to  be  determined  in  each  case  as  it 
arises;  Ewing  v.  Lanark  Fuel  Co.  65  W.  Va.  732,  29  L.R.A.  (N.S.)  494,  65  S.  E.  200, 
holding  child  thirteen  years  and  nine  months  old  presumed  not  to  possess  suf- 
ficient mental  capacity  to  comprehend  danger,  and  burden  is  on  employer  to  prove 
capacity;  Morancy  v.  Hennessey,  24  R.  I.  208,  52  Atl.  1021,  holding  allegation  in 
complaint  that  injured  minor  was  of  less  than  average  intelligence,  supported 
alone  by  reiteration  of  counsel  not  sufficient  to  establish  such  fact. 
Question  tor  jury. 

Cited  in  Patnode  v.  Warren  Cotton  Mills,  157  Mass.  284,  34  Am.  St.  Rep.  275, 
32  N.  E.  161,  holding  weight  of  evidence  that  plaintiff  was  not  very  smart,  but 
was  rather  dull,  for  jury. 
Assumption  of  risk. 

Cited  in  note  (97  Am.  St.  Rep.  888)  on  assumption  of  risk. 

6  L.  R.  A.  736,  BENNETT  v.  McINTIRE,  121  Ind.  231,  23  N.  E.  78. 
Trespass. 

Cited  in  Keaton  v.  Snider,  14  Ind.  App.  67,  42  N.  E.  372,  holding  wrongful 
entry  by  cattle  upon  land  and  destruction  of  growing  corn,  trespass;  Spades  v. 
Murray,  2  Ind.  App.  406,  28  N.  E.  709,  holding  abuse  of  owner's  authority  to 
enter  upon  land  not  constitute  trespass;  Reed  v.  Maley,  25  Ky.  L.  Rep.  211,  62 
L.  R.  A.  902,  footnote  p.  900,  74  S.  W.  1079,  holding  soliciting  woman  to  sexual 
intercourse,  not  actionable;  Sheftall  v.  Zipperer,  133  Ga.  493,  27  L.R.A.(N.S.) 
446,  66  S.  E.  253,  holding  police  officer  who  enters  house  to  make  search,  under 
invitation  of  wife  of  plaintiff,  not  trespasser  ab  initio;  Reed  v.  Maley,  115  Ky. 
822,  62  L.R.A.  900,  74  S.  W.  1079,  2  A.  &  E.  Ann.  Cas.  453,  holding  woman  does, 
not  have  cause  of  action  against  man  who,  without  trespass  or  assault,  solicits 
her  to  have  sexual  intercourse  with  him. 
Local  actions. 

Cited  in  Du  Breuil  v.  Pennsylvania  Co.  130  Ind.   138,  29  N.  E.  909,  holding 
that  action  for  trespass  must  be  brought  in  county  where  land  is  situated. 
Incidental   damages. 

Cited  in   Hamilton   v.   Toner,   17   Ind.  App.   395,   46  N.   E.   921,   holding  that 
where  principal  cannot  be  collected  in  action  for  tort,  interest  and  damages  for 
failure  to  pay  cannot  be  collected  in  tort. 
Pleading    fraud. 

Cited  in  Guy  v.  Blue,  146  Ind.  632,  45  N.  E.  1052,  holding  facts  constituting 
fraud  must  be  distinctly  averred;  Bullock  v.  Wooldridge,  42  Mo.  App.  362; 
Balue  v.  Taylor,  136  Ind.  374,  36  N.  E.  269;  Hartman  v.  International  Bldg. 
&  L.  Asso.  28  Ind.  App.  67,  62  X.  E.  64;  Smith  v.  Parker,  148  Ind.  133,  45  N.  E. 
770, —  holding  that  allegations  must  show  representations  of  existing  facts,  anct 
not  promises. 


1183  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  737 

Limited  in  Ray  v.  Baker,  165  Lnd.  83,  74  X.  E.  619,  holding  pleading  need  not 
minutely  state  all  of  the  facts  and  circumstances  tending  to  establish  charge. 
Fraudulent   representations. 

Cited  in  Gipe  v.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  41  Ind.  App.  161,  82  N.  E.  471, 
holding  release  of  liability  of  railroad  executed  by  widow  who  accepts  benefit 
certificate  provision,  should  be  upheld  unless  it  was  induced  by  fraud  whereby 
widow  was  misled  into  settlement  she  would  not  have  accepted  otherwise. 

6  L.  R.  A.  737,  McCLAIN  v.  NEW  CASTLE,  130  Pa.  546,  25  W.  N.  C.  246,  18 

Atl.  1066. 
Abatement  of  nuisance  by  injunction. 

Cited  in  Mowday  v.  Moore,  133  Pa.  612,  19  Atl.  626,  and  Mirkil  v.  Morgan, 
134  Pa.  155,  19  Atl.  628,  holding  that  final  injunction  will  not  be  granted  against 
maintenance  of  nuisance  unless  right  has  been  first  established  at  law  or  is 
conceded;  Evans  v.  Reading  Chemical  Fertilizing  Co.  160  Pa.  216,  28  Atl.  702, 
holding  that  injunction  will  not  issue  in  doubtful  case  until  right  has  been 
established  at  law;  Wood  v.  McGrath,  150  Pa.  458,  16  L.  R,  A.  718,  24  Atl.  682, 
holding  injunction  to  restrain  maintenance  of  private  drain  will  not  be  granted 
unless  right  of  removal  has  been  first  established  at  law;  Easton,  S.  E.  &  W.  E. 
Pass.  R.  Co.  v.  Easton,  133  Pa.  520,  19  Am.  St.  Rep.  658,  19  Atl.  486,  holding 
that  injunction  will  be  granted  without  regard  to  merits  of  controversy  re- 
straining city  authorities  from  summarily  removing  railway  track  as  nuisance; 
Coward  v.  Llewellyn,  209  Pa.  587,  58  Atl.  1066,  holding  equity  will  not  interfere 
to  compel  removal  of  buildings  claimed  to  be  on  highway  until  legal  title  to  land 
is  determined  by  court  of  law;  United  States  v.  Luce,  141  Fed.  418,  holding 
Federal  court  will  abate  maintenance  of  fish  fertilizer  factory  near  quarantine 
station  and  marine  hospital;  Manegold  v.  Foundry  Co.  17  Pa.  Dist.  R.  978.  holding 
injunction  will  not  issue  to  restrain  depositing  of  smoke,  soot  and  gases  from 
iron  foundry  operated  for  many  years  in  ordinary  manner  complainant  being 
owner  of  nearby  property;  Van  Buskirk  v.  Bond,  52  Or.  240,  96  Pac.  1103,  holding 
equity  will  not  interfere,  where  court  is  in  doubt  as  to  existence  of  nuisance 
complained  of,  until  questions  are  settled  at  law,  unless  damages  apprehended 
or  sustained  are  irreparable;  Gorman  v.  McDermott,  42  Pa.  Super.  Ct.  518,  to 
the  point  that  party  is  not  entitled  to  remedy  by  injunction  to  abate  nuisance 
where  right  has  not  been  established  at  law  or  is  not  clear;  Morey  v.  Black,  21 
Montg.  Co.  L.  Rep.  107,  enjoining  operation  of  bowling-alley,  at  night,  in  resi- 
dential neighborhood;  Union  Water  Co.  v.  Enterprise  Oil  Co.  21  Pittsb.  L.  J.  N. 
S.  160,  refusing  water  company  injunction  against  defiling  of  stream,  by  oil  pro- 
ducers, with  salt  water. 

Cited  in  notes  (1  Eng.  Rul.  Cas.  572;  19  Eng.  Rul.  Cas.  306)  as  to  when  in- 
junction against  nuisance  will  be  granted. 

Distinguished   in   Com.   ex  rel.  Tyrone  v.   Stevens,    178   Pa.   562,  36  Atl.   166, 
enjoining  erection  of  wall  in  stream  without  requiring  determination  of  right 
in  common-law  action. 
Municipal    power    over    nuisances. 

Cited  in  Keystone  State  Teleph.  &  Teleg.  Co.  v.  Ridley  Park,  28  Pa.  Super.  Ct, 
646,  holding  borough  may  treat  telephone  poles  and  wires  as  nuisance  where 
company  fails  to  perform  condition  precedent  in  contract  with  borough  to  com- 
plete construction  of  lines  within  specified  time. 

Cited  in  notes  (40  L.  R.  A.  469)  on  injunctions  by  municipalities  against 
nuisances  affecting  water  courses;  (38  L.  R.  A.  645)  municipal  power  over 
nuisances;  (39  L.  R.  A.  C50)  municipal  power  over  nuisances  affecting  highways. 


6  L.R.A.  737]  L.  R.  A.  CASES  AS  AUTHORITIES.  1184 

Prescriptive   rig-lit   to   maintain    nuisance. 

Cited   in.  notes    (53   L.   R.   A.   89G)    on  prescriptive   right  to  pollute   stream; 
(53  L.R.A.  895)   on  prescriptive  right  to  carry  on  offensive  trade;    (23  Am.  St. 
Rep.  174)  on  prescriptive  right  to  maintain  public  nuisance. 
Obstructing:  stream. 

Cited  in  note  (59  L.  R.  A.  850)  on  liability  for  damming  back  water  of  stream. 
Relief  in  equity  on  disputed  legal  right. 

Cited  in  Com.  v.  Mahoning  Powder  Co.  30  Pa.  Co.  Ct.  325,  holding  ordinarily 
injunction  will  not  be  granted  until  right  to  such  relief  has  been  established  by 
jury  trial;  Baer  v.  Wilmoth,  39  Pa.  Super.  Ct.  77,  holding  equity  will  not  proceed 
in  suit  to  settle  boundary  line  and  to  abate  nuisance  in  nature  of  waterway, 
where  it  appears  that  real  dispute  was  location  of  boundary  line  and  that  par- 
ties had  actual  possession  of  respective  properties  to  true  boundary  line;  Eisen- 
berger  v.  Eisenberger,  38  Pa.  Super.  Ct.  573,  26  Lane.  L.  Rev.  188,  holding  equity 
may  compel  specific  performance  of  parol  contract  to  sell  land. 

6  L.  R.  A.  740,  DARBY  v.  GILLIGAN,  33  W.  Va.  246,  10  S.  E.  400. 

Proceeding  to  settle  accounts  of  trustee  in  37  W.  Va.  59,  16  S.  E.  507. 

Proceeding  to  establish  rights   of  respective  creditors  in  43   W.  Va.   755,  28 
S.  E.  737. 
Eqni  table   liens   on    partnership   property Of   partners. 

Cited  in  Grobe  v.  Roup,  44  W.  Va.  199,  28  S.  E.  699,  holding  that  appropria- 
tion of  partnership  funds  by  insolvent  member,  may  be  enjoined  pending  ac- 
counting. 

Cited  in  footnote  to  Kincaid  v.  National  Wall  Paper  Co.  54  L.  R,  A.  412,  which 
sustains  right  of  partners  to  appropriate  with  other  partners'  consent  interest 
in  firm  to  pay  individual  in  preference  to  firm  debts. 
—  Of  creditors  of  insolvent   firm. 

Followed  in  Baer's  Sons  v.  Wilkinson,  35  W.  Va.  426,  14  S.  E.  1 ;  Millhiser 
v.  McKinley,  98  Va.  211,  35  S.  E.  446,  holding  sale  of  interest  by  one  member 
of  insolvent  to  other  member  in  consideration  of  latter's  assumption  of  all  firm 
debts  followed  by  his  sale  to  trustee  to  pay  his  individual  debts  void  as  to 
firm  creditors;  Franklin  Sugar  Ref.  Co.  v.  Henderson,  86  Md.  459,  63  Am.  St. 
Rep.  524,  38  Atl.  991,  holding  transfer  of  interest  in  insolvent  firm  by  retiring 
partner  to  copartners  continuing  business,  fraudulent  as  to  creditors;  Thayer  v. 
Humphrey,  91  Wis.  290,  30  L.  R.  A.  554,  51  Am.  St.  Rep.  887,  64  X.  W.  1007, 
holding  partner's  sale  of  interest  in  insolvent  firm  for  purpose  of  paying  firm 
debts  preserves  rights  of  firm  creditors;  Foley  v.  Ruley.  50  W.  Va.  165,  55  L.  R. 
A.  919,  40  S.  E.  382,  holding  transfer  of  property  of  insolvent  firm  with  intent 
to  defraud  creditors,  void. 

Cited  in  Dewing  v.  Hutton,  40  W.  Va.  538,  21  S.  E.  780,  holding  creditors  of 
quasi-partnership  preferred  to  partner's  creditor;  Kurner  v.  O'Xeil.  39  W.  Va. 
520,  20  S.  E.  589.  holding  transfer  of  property  by  member  of  insolvent  firm  to 
secure  individual  debt,  void  as  to  partnership  creditors;  Jackson  Bank  v.  Durfey, 
72  Miss.  971,  31  L.  R.  A.  471,  48  Am.  St.  Rep.  596,  18  So.  456,  holding  that 
insolvent  members  of  insolvent  firm  cannot  use  partnership  property  to  pay  in- 
dividual debts;  Reyburn  v.  Mitchell,  106  Mo.  376,  27  Am.  St.  Rep.  350,  16  S.  W. 
592,  holding  transfer  of  partnership  property  to  pay  individual  debt  to  one 
knowing  of  firm's  insolvency,  fraud  on  firm  creditors;  Blake  v.  Sargent,  152  Fed. 
266,  holding  funds  paid  creditor  of  individual  partner,  on  such  partner's  pur- 
chase of  other  partner's  interest  and  assumption  of  firm  debts,  could  be  recovered 
by  firm  creditors,  the  firm  being  insolvent  at  time. 


1185  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  743 

Distinguished  in  Hall  v.  Hyer,  48  W.  Va.  358,  37  S.  E.  594,  holding  improve- 
ments on  wife's  property  by  partner  retiring  from  solvent  firm,  out  of  individual 
funds,  not  liable  for  firm  debts. 
It  iiihl>   aud   duties   of  surviving  partner. 

Cited  in  notes  (7  L.  R.  A.  481)  on  rights  of  surviving  partner;  (7  L.  R.  A. 
791)  on  duties  of  surviving  partner. 

Criticized  in  McDonald  v.  Cash,  57  Mo.  App.  549,  holding  sale  by  one  of  in- 
solvent firm  to  another  in  consideration  of  assumption  of  debts,  without  actual 
fraud,  valid. 
Relative   rights   of  individual   and    linn    creditors. 

Cited  in  Re  Terens,  175  Fed.  500,  holding  dissolution  and  transfer  by  partner 
to  co-operate  of  all  his  interest  in  insolvent  partnership,  although  without  actual 
fraudulent  intent  does  not  bar  firm  creditors  of  right  to  be  first  paid  from  part- 
nership assets. 

Cited  in  footnotes  to  Clark  v.  Stanwood,  34  L.  R.  A.  378,  which  authorizes 
proof  of  debts  of  solvent  firm  against  single  insolvent  partner;  Thayer  v. 
Humphrey,  30  L.  R.  A.  549,  as  to  relative  rights  of  individual  and  firm  cred- 
itors; Hundley  v.  Farris,  12  L.  R.  A.  254,  which  holds  individual  creditors 
primarily  entitled  to  payment  out  of  deceased  partner's  estate;  Re  Baldwin, 
58  L.  R.  A.  122,  which  sustains  individual  liability  of  member  of  banking  firm, 
signing  name  to  certificate  of  deposit,  enforceable  against  estate  in  preference  to 
claims  against  firm. 
Validity  of  transfer  of  interest  from  one  partner  to  copartner. 

Disapproved  in  Sargent  v.  Blake,  17  L.R.A.(X.S.)  1046,  87.  C.  C.  A.  213,  160 
Fed.  65,  15  A.  &  E.  Ann.  Cas.  58,  holding  agreement  to  assume  and  pay  debts  of 
insolvent  partnership  valuable  consideration  sufficient  to  support  conveyance  of 
interest  in  partnership  property. 

6  L.  R.  A.  742,  UNITED  STATES  v.  BAYLE,  40  Fed.  664. 
TJnmailable   matter. 

Cited  in  United  States  v.  Elliott,  51  Fed.  808,  holding  postal  card  demanding 
payment  of  past  due  rent  not  violation  of  Federal  statute;  Griffin-  v.  Pembroke, 
G4  Mo.  App.  269,  holding  whether  mailing  a  particular  postal  card  in  violation 
of  Federal  statute,  question  of  law;  Warren  v.  United  States,  33  L.R.A.(N.S.) 
803,  106  C.  C.  A.  156,  183  Fed.  721,  holding  that  deposit  in  mail  of  stamped 
envelope  on  face  of  which  was  printed  in  large  letters  "$1000  Reward  will  be  paid 
to  any  person  who  kidnaps  Ex.  Gov.  Taylor  and  returns  him  to  Kentucky  au- 
thorities" constituted  violation  of  act  of  Congress  passed  Sept.  26th,  1888. 

Cited  in  note  (18  L.R.A.(X.S.)  79)  as  to  what  extent  mails  may  be  used  in 
forwarding  of  collection  and  dunning  matter;  (58  Am.  St.  Rep.  599)  on  criminal 
uses  of  United  States  mail. 

tf  L.  R.  A.  743,  STATE  v.  BARNES,  32  S.  C.  14,  17  Am.  St.  Rep.  832,  10  S.  E.  611. 
Pardons    on    condition. 

Cited  in  Fuller  v.  State,  122  Ala.  37.  45  L.  R.  A.  502,  82  Am.  St.  Rep.  17, 
26  So.  146,  holding  that  pardoning  power  under  Constitution  includes  pardons 
on  condition  precedent  or  subsequent,  and  breach  of  condition  annuls  pardon. 

Cited  in  notes  (5  L.R.A.(N.S.)   1064)   on  power  to  impose  in  pardon  conditions 
extending  beyond  term  of  sentence;    (16  L.R.A.  (N.S.)    305)   as  to  whether  time 
prisoner  is  out  on  parole  or  conditional  pardon  should  be  deducted  from  term; 
<111  Am.  St.  Rep.  Ill,  112,  115)  on  conditional  pardon? 
L.R.A.  Au.  Vol.  I.— 75. 


6  L.R.A.  743]  L.  R.  A.  CASKS  AS  AUTHORITIES.  1188 

Forfeiture  of  parole  or  pardon   for  breach   of   condition. 

Cited  in  Fuller  v.  State.  122  Ala.  30,  45  L.  R.  A.  503..  82  Am.  St.  Rep.  17,  20 
So.  146,  holding  statute  providing  for  conditional  parole,  and  for  taking  priM>m-r 
again  into  custody  upon  breach  of  condition,  constitutional;  Re  Ridley,  3  Okhi. 
Crim.  Rep.  362,  2G  L.R.A.(X.S.)  115,  106  Pac.  540:  State  v.  Home,  52  Fla.  139, 

7  L.R.A.  (N.S.)   725,  42  So.  388, — holding  pardon  becomes  void,  by  breach  of  con- 
dition and  prisoner  may  be  arrested  and  compelled  to  undergo  so  much  of  original 
sentence  as  he  had  not  suffered  at  time  of  release. 

6  L,  R,  A.  745.  DE  HAVEN  v.  SHERMAN,  131  111.  115,  22  N.  E.  711,  714. 
"When  annuity   charge   upon   corpus   of  estate. 

Cited  in  Einbecker  v.  Einbecker,  162  111.  273.  44  X.  E.  426.  holding  that  prin- 
cipal cannot  be  used  to  make  up  deficiency  where  testator  intended  annuity  to 
be  paid  out  of  income  of  fund:  Hopkins  v.  Remy,  64  X.  J.  Eq.  14.  53  Atl.  676, 
holding  that  no  resort  may  be  had  to  land  to  pay  annuity  devised  out  of  rents 
and  profits;  Merriam  v.  Merriam.  80  Minn.  272.  83  X*.  W.  162  (dissenting 
opinion),  majority  holding  that  income  should  be  made  up  from  corpus  of  estate 
where  securities  selected  by  executors  to  pay  designated  income  to  widow  prove 
insufficient;  Merrill  v.  American  Baptist  Missionary  Union.  73  X.  H.  418.  3 
L.R.A.(X.S.)  1147,  111  Am.  St.  Rep.  632,  62  Atl.  647,  6  A.  £  E.  Ann.  Cas.  646. 
holding  will  bequeathing  use  of  realty  to  children  and  their  heirs  forever,  and 
providing  that  on  cessation  of  heirs  property  to  go  to  certain  devisees  and  re- 
quiring children  to  pay  certain  sum  annually  to  such  devisees,  made  annuity 
charge  on  income. 
Construction  of  trill. 

Cited  in  French  v.  Calkins,  252  111.  255,  96  X.  E.  877,  to  the  point  that  an 
annuity  is  not  an  estate  in  property;  Routt  v.  Newman,  253  111.  188,  97  X.  E. 
208,  holding  that  rent  charge  or  annuity  is  not  created  where  title  to  land  is 
devised  to  trustees  for  life  of  sons,  with  contingent  remainder  in  fee  to  those 
who  would  then  be  heirs  of  body  of  testatrix,  and  where  trustees  are  directed 
to  manage  estate  and  after  expenses  to  pay  income  to  sons  equally:  Col  ins  v. 
Crawford,  214  Mo.  180,  127  Am.  St.  Rep.  661,  112  S.  W.  538,  on  construction  of 
trust  so  as  to  carry  out  its  purposes. 

6  L.  R.  A.  749,  GORDON  v.  STATE,  46  Ohio  St.  607,  23  N.  E.  63. 
Constitutionality  of  local   linvs. 

Cited  in  Mathis  v.  Jones,  84  Ga.  807,  11  S.  E.  1018.  holding  local  option  law 
as  to  fences  a  general  law  of  uniform  operation;  Adams  v.  Beloit,  105  Wis.  374, 
47  L.  R.  A.  446,  81  X*.  W.  869.  holding  option  to  adopt  provisions  of  general 
statute  not  in  conflict  with  constitutional  requirement  as  to  uniformity  of 
operation :  Walbridge  v.  Jones,  22  Ohio  C.  C.  701,  11  Ohio  C.  D.  508.  on  meaning 
of  "shall  have  a  uniform  operation  throughout  the  state"  as  used  in  the  consti- 
tution. 
An  to  intoxicating'  liquors. 

Followed  in  State  v.  Rouch,  47  Ohio,  St.  482,  25  N.  E.  59.  holding  Dow  law  not 
unconstitutional  for  want  of  uniform  operation;  Ex  parte  Handler,  176  Mo.  389, 
75  S.  W.  920,  holding  local  option  liquor  law,  prescribing  different  penalties  for 
unlawful  traffic  in  counties  adopting  it  than  imposed  in  others,  constitutional. 

Cited  in  Stevens  v.  State.  61  Ohio  St.  606,  56  XT.  E.  478,  holding  that  the  pro- 
hibition of  the  sale  of  intoxicating  liquors  need  not  be  absolute  to  be  a  police 
regulation  within  the  Wilson  act :  McPherson  v.  State,  174  Ind.  73,  31  L.R.A. 


1187  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  LJI.A.  749 

(N.S.  194,  90  X.  E.  610,  holding  that  county  local  option  law  is  not  unconsti- 
tutional in  giving  voters  part  in  making  the  law;  Gordon  v.  Corning,  174  Ind.  342, 
92  X.  E.  59,  holding  that  county  local  option  law  is  not  local  law  but  operative 
generally  throughout  state  and  is  constitutional;  In  re  Ammer  (Petition  of^ 
3  Ohio  X.  P.  X.  S.  342.  50  Ohio  L.  J.  356:  Thalheimer  v.  Maricopa  County,  II 
Ariz.  435.  94  Pac.  1129,  upholding  constitutionality  of  local  option  law;  Re 
iHSric-u,  29  Mont.  540.  75  Pac.  196,  1  A.  &  E.  Ann.  Cas.  373,  holding  local 
option  liquor  law,  providing  for  petition  to  county  commissioners  and  the  deci- 
sion by  election  as  to  sale  of  liquor,  constitutional;  Columbus  v.  Jeffrey.  2  Ohio- 
X.  P.  X.  S.  89,  14  Ohio  S.  &  C.  P.  Dec.  613:  Ely  v.  Willard,  2  Ohio  X.*  P.  X.  S. 
574,  15  Ohio  S.  &  C.  P.  Dec.  321. — holding  valid  local  option  law  giving  40  per 
cent  of  electors  power  to  prescribe  a  district  in  which  question  of  sale  of  in- 
toxicants shall  be  submitted  to  vote;  Lloyd  v.  Dollison,  3  Ohio  C.  C.  X.  S.  331, 
13-23  Ohio  C.  C.  574:  Wells  v.  State,  1  Ohio  X.  P.  X.  S.  320,  14  Ohio  S.  &  C.  P. 
Dec.  206,  holding  constitutional  municipal  local  option  law;  Scheu  v.  State,  83 
O.  S.  160,  93  N.  E.  969;  Gassman  v.  Kerns,  7  Ohio  X.  P.  X.  S.  633,  19  Ohio  S, 
&  C.  P.  Dec.  323. — holding  constitutional  county  local  option  law. 

Cited  in  notes  (10  L.R.A.  82)  on  right  of  state  to  prohibit  manufacture  and 
sale  of  intoxicating  liquors:  (8  L.R.A. (X.S.i  363)  on  discrimination  as  between 
different  localities,  in  respect  to  right  to  sell  liquor;  (15  L.R.A.(X.S.)  914,  945) 
on  constitutional  right  to  prohibit  sale  of  intoxicants;  (114  Am.  St.  Rep.  325) 
on  constitutionality  of  local  option  laws. 

Distinguished  in  Brown  v.  Van  Wert   (Incorporated  Village)   4  Ohio  C.  C.  422, 
2  Ohio  C.  D.  629,  holding  invalid  the  Dow  local  option  law  for  failure  to  properly 
prescribe  return  of  assessment  where  right  to  sell  is  prohibited  by  ordinance. 
Delegation  of  power. 

Followed  in  State  v.  Rouch,  47  Ohio  St.  482,  25  N.  E.  59,  on  the  point  that 
Dow  law  not  unconstitutional  as  delegation  of  legislative  power  to  people. 

Cited  in  State  ex  rel.  Witter  v.  Forkner,  94  Iowa,  11,  28  L.  R.  A.  210,  62  X. 
W.  772,  holding  it  not  unconstitutional  delegation  of  legislative  power  to  allow 
people  to  determine  by  vote  limits  of  operation  of  prohibitory  liquor  law;  State 
v.  Messenger,  63  Ohio  St.  402,  59  X.  E.  105,  holding  authority  granted  commis- 
sioners to  determine  increased  weight  that  may  be  drawn  in  vehicles  having  tires 
less  'I'.an  3  inches  in  width  not  unconstitutional  as  delegation  of  legislative 
power;  McClanahan  v.  Breeding,  172  Jnd.  464.  88  X.  E.  695,  holding  law  prohibit- 
ing granting  of  liquor  license  by  county  commissioners  after  filing  of  remonstrance 
by  majority  of  qualified  voters  of  township,  not  directed  at  public  policy  but  is 
a  local  police  power,  and  valid:  Scott  v.  Hamilton  (City),  4  Ohio  X.  P.  X.  S.  11, 
16  Ohio  S.  &  C.  P.  Dec.  667,  holding  not  void,  as  delegation  of  legislative  power,, 
power,  of  board  of  public  service  to  select  one  of  three  materials  specified  br 
ordinance  to  be  used  for  paving  street;  Baltimore  &  O.  R.  Co.  v.  Railroad  Com- 
mission, 10  Ohio  X.  P.  X.  S.  671,  21  Ohio  S.  &  C.  P.  Dec.  59,  holding  that  railroad 
commission  act  is  not  delegation  of  legislative  power. 

Cited  in  note  (1  L.R.A. (X.S.)  483)  on  local  option  law  as  unconstitutional  dele- 
gation of  power. 

Distinguished  in  State  ex  rel.  Allison  v.  Carver,  66  Ohio  St.  565.  04  X.  E.  573;. 
holding  act  to  limit  compensation  of  county  officers  unconstitutional  where  it  is 
to  take  effect  when  and  if  approved  by  popular  vote. 
1  in  pn»-i  hi!  it  >    of  execution  of  statute. 

Followed  in  State  v.  Rouch,  47  Ohio  St.  482,  25  X.  E.  59,  on  point  that  Dow 
law  not  unconstitutional  because  impossible  of  execution. 

Cited  in  Beverstock  v.  Board  of  Education,  75  Ohio  St.  150,  78  X.  E.  1007^ 
holding  statute  will  not  be  rendered  void  if  it  is  possible  to  execute  it. 


6  L.R.A.  749]  L.  R.  A.  CASES  AS  AUTHORITIES.  1188 

Duplicity. 

Cited  in  Nickel  v.  State,  6  Ohio  C.  C.  603,  holding  count  charging  sale  of 
liquors  to  diverse  persons  unknown,  not  bad  for  duplicity;  State  v.  Batson,  108 
La.  481,  32  So.  478,  holding  that  single  criminal  act  consummated  at  one  time 
may  be  charged  as  one  offense,  although  it  may  operate  upon  more  than  one 
person;  State  ex  rel.  Atty.  Gen.  v.  Mulhern,  74  Ohio  St.  369,  78  X.  E.  507,  6 
A.  &  E.  Ann.  Gas.  856,  construing  law  so  as  to  extend  term  of  office  of  county 
commissioners  where  provision  therefore  was  in  conflict  with  another  provision 
for  commencement  of  office,  where  such  extension  conforms  with  policy  and  intent 
of  legislature. 
Sufficiency  of  indictment. 

Cited  in  State  v.  Ice  Delivery  Co.  5  Ohio  X.  P.  N.  S.  99,  17  Ohio  S.  &  C.  P. 
Dec.  523,  holding  good  against  demurrer  for  duplicity,  indictment  charging  in 
one  count  several  offenses  of  the  same  character  and  part  of  the  same  transaction ; 
Stewart  v.  State,  2  Ohio  C.  C.  N.  S.  292,  25  Ohio  C.  C.  439,  on  necessity  of 
setting  out  names  of  parties  to  whom  liquors  were  sold  in  indictment  for  viola- 
tion of  local  option  law. 

Sufficiency  of  affidavit   for  prosecution   for  unlawful  sale   of  intoxicating' 
liquor. 

Cited  in  State  v.  Ridgway,  73  Ohio  St.  41,  76  X.  E.  95,  4  A.  &  E.  Ann.  Cas. 
94,  holding  affidavit  on  which  prosecution  for  unlawfully  selling  intoxicating 
liquor  must  state  name  of  purchaser  of  such  liquor  or  that  name  is  to  affiant, 
unknown. 

6  L.  R.  A.  756,  SPRING  VALLEY  WATERWORKS  v.  SAX  FRAXCISCO,   82 

Cal.  286,  16  Am.  St.  Rep.  116,  22  Pac.  910-1046. 
Public    corporations;    authority    to    fix    rates. 

Cited  in  Jacobs  v.  San  Francisco,  100  Cal.  137,  34  Pac.  630,  holding  under 
statute  making  it  official  duty  of  board  of  supervisors  of  city  annually  to  fix 
rates  for  water,  power  to  fix  rates  rests  with  board  of  supervisors  alone;  San 
Diego  Water  Co.  v.  San  Diego,  118  Cal.  566,  38  L.  R.  A.  402,  62  Am.  St.  Rep. 
261,  50  Pac.  633,  holding  constitutional  provision  for  fixing  water  rates  without 
notice  not  deprivation  of  property  without  due  process  of  law;  Spring  Valley 
Waterworks  v.  San  Francisco,  124  Fed.  587,  holding  ordinance  fixing  water  rates 
so  low  that  company's  net  earnings  would  be  much  less  than  earnings  from  simi- 
lar investments,  unconstitutional;  San  Diego  Land  &  Town  Co.  v.  Jasper,  189  U. 
S.  440,  47  L.  ed.  894,  23  Sup.  Ct.  Rep.  571,  holding  default  of  original  petitioners 
for  establishment  of  water  rates,  made  parties  to  bill  to  have  them  declared  void; 
not  entitle  plaintiff  to  relief  sought;  San  Diego  Water  Co.  v.  San  Diego  Flume 
Co.  108  Cal.  560,  29  L.  R.  A.  843,  41  Pac.  495,  holding  contract  making  water 
•company  sole  distributing  agent  for  flume  company  not  against  public  policy; 
Leadville  Water  Co.  v.  Leadville,  22  Colo.  305,  45  Pac.  362,  holding  city  council 
lias  power  to  fix  Avater  rates;  Home  Teleph.  &  Teleg.  Co.  v.  Los  Angeles,  355 
Fed.  581,  holding  city  which  has  power  to  regulate  telephones  and  fix  rates 
therefor  may  pass  ordinance  to  that  end  without  notice  to  telephone  company. 

Cited  in  notes    (33  L.  R.  A.   182)    on  legislative  power  to  fix  tolls,  rates,  or" 
prices;    (61  L.R.A.  101,  104.  105)   on  control  of  rates  of  municipal  water  supply; 
(8  L.R.A.  (N.S.)    530)    on  power  of  judiciary  to  fix  rates  of  public-service  cor- 
porations;   (62  Am.  St.  Rep.  295,  299)   on  authority  to  fix  rates. 
Arbitrary   fixing:  of  rates. 

Cited  in  San  Diego  Land  &  Town  Co.  v.  National  City.  174  U.  S.  749,  43  L. 
ed.  1158,  19  Sup.  Ct.  Rep.  804,  holding  when  statute  making  it  duty  of  town 
supervisors  annually  to  fix  water  rates,  construed  by  state  court  as  not  authoriz- 


1189  L.  R.  A.  CASES  AS  AUTHORITIES.  [°  L.R.A.  756 

ing  arbitrary  fixing  of  rates,  construction  binding  on  Federal  courts,  although 
notice  to  water  company  not  expressly  provided;  Woodruff  v.  East  Orange,  71 
X.  J.  Eq.  432,  64  Atl.  460,  upholding,  as  reasonable,  rate  fixed  by  municipal 
authorities  by  meter  measurement  against  boarding  house  keepers,  and  not  unjust 
discrimination  in  favor  of  ordinary  residents  assessed  at  fixed  rate,  both  rates 
being  about  equal  per  capita;  Santa  Ana  Water  Co.  v.  San  Buenaventura,  65 
Fed.  329,  on  power  of  trustees  of  town  to  arbitrarily  fix  rates. 
Power  of  courts  to  review  reasonableness  of  rates. 

Cited  in  Jacobs  v.  San  Francisco,  100  C'al.  130,  34  Pac.  630,  holding  that  fixing: 
of  water  rates  by  board  of  supervisors  is  judicial  act,  and  judgment  cannot  be 
controlled  by  mandamus;  Union  Transp.  Co.  v.  Bassett,  118  Cal.  610,  50  Pac. 
T.~>4,  holding  that  equity  cannot  interfere  with  discretionary  action  of  board  of 
harbor  commissioners  in  changing  place  of  landing  of  vessel;  San  Diego  Land 
&  Town  Co.  v.  National  City,  74  Fed.  83,  holding  court  has  power  to  inquire 
into  reasonableness  of  rates  fixed  by  municipalities  for  use  of  appropriated* 
water;  Philadelphia  &  R.  R.  Co.  v.  Interstate  Commerce  Commission,  174  Fed. 
689,  holding  court  cannot  suspend  or  vacate  order  of  interstate  commerce  com- 
mission prescribing  rates  under  act  of  Congress,  except  that  commission  m 
making  order  exceeded  its  power  or  without  regard  to  law  or  in  violation  of 
legal  constitutional  or  natural  right;  Contra  Costa  Water  Co.  v.  Oakland,  159 
Cal.  347,  113  Pac.  668,  holding  that  courts  have  no  power  to  revise  water  rates 
fixed  by  rate-making  body  unless  its  action  is  confiscatory. 

Cited  in  notes    (22   Am.  St.   Rep.   797)    on   power  of  court  to  interfere  with 
action  of  supervisors  in  fixing  water  rates;    (62  Am.   St.  Rep.  301)    on  power 
of  courts  to  review  reasonableness  of  rates. 
Over   official  action   generally. 

Cited  in  Goldtree  v.  San  Diego,  8  Cal.  App.  510,  97  Pac.  216,  holding  court 
has  power  to  render  judgment  against  municipality  for  mechanic's  lien  for  labor 
performed  on  property  of  city;  Inglin  v.  Hoppin,  156  Cal.  489,  105  Pac.  582, 
holding  mandamus  will  lie  to  compel  board  of  supervisors  to  establish  reclama- 
tion district;  Avery  v.  Job,  25  Or.  525,  36  Pac.  293,  holding  equity  will  not  in 
absence  of  fraud,  review  discretion  of  city  council  in  erection  or  purchase  of 
waterworks. 

Disapproved  in  part  in  Matthews  v.  North  Carolina,  106  Fed.  10,  holding  state 
commission  order  fixing  amount  of  fertilizers  constituting  car  load  at  ten  tons, 
not  subject  to  judicial  interference,  unless  clearly  unreasonable. 
Requiring    furnishing;    of    water    meters. 

Cited  in  note  (61  L.  R.  A.  112,  114)  on  rights  and  duties  of  consumer  ot 
water. 

Distinguished  in  State  ex  rel.  Hallauer  v.  Gosnell,  116  Wis.  615,  61  L.  R.  A. 
45,  93  X.  W.  542,  sustaining  provision  in  ordinance  regulating  water  rates  re- 
quiring consumers  in  certain  cases  to  furnish  meters;  Cooper  v.  Goodland,  80" 
Kan.  124,  23  L.R.A.  (X.S.)  413,  102  Pac.  244,  upholding  ordinance  requiring 
user  to  own  and  maintain  own  meter,  where  waterworks  are  owned  by  city; 
Shaw  Stocking  Co.  v.  Lowell,  199  Mass.  120,  18  L.R.A. (X.S.)  747,  85  X.  E.  90. 
15  A.  &  E.  Ann.  Cas.  377,  holding  municipal  corporation  which  is  bound  to 
supply  water  at  reasonable  rates  to  all  takers,  and  which  affords  reasonable 
means  for  extinguishing  fires  may  require  property  owner  who  desires  to  connect 
private  fire  system  with  water  supply  to  put  in  meter  at  own  expense. 
Pleading;  party  must  allege  facts  essential  to  recovery. 

Cited  in  Allen  v.  Home  Ins.  Co.  133  Cal.  30,  65  Pac.  138,  holding  that  in 
action  upon  policy  insuring  building  "while  occupied  as  dwelling  house",  plain- 


6  L.Px.A.  756]  L.  R.  A.  CASES  AS  AUTHORITIES.  1190 

tiff  must  allege  that  building  was  so  occupied;  Miles  v.  Woodward,  115  Cal. 
314,  46  Pac.  1076,  holding  complaint  in  action  to  recover  penalty  of  directors 
of  mining  corporation  for  failure  to  post  weekly  reports  of  superintendent,  need 
not  allege  neglect  wilful  and  intentional,  since  directors  prima  facie  liable  for 
mere  neglect;  Winchester  v.  Howard,  136  Cal.  452,  89  Am.  St.  Rep.  153,  64 
Pac.  692,  holding  allegation  that  directors  of  corporation  made  unlawful  pay- 
ment and  misappropriation  and  pretended  purchase,  did  not  dispense  with  neces- 
sity of  facts  showing  misappropriation;  Ex  parte  Goodspeed,  2  Cof.  Prob.  Dec. 
Anno.  149.  holding  facts  constituting  fraud  must  be  alleged. 
Repealed  statute,  how  revived. 

Cited  in  Lyles  v.  McCown,  82  S.  C.  131,  63  S.  E.  355,  17  A.  &  E.  Ann.  Gas. 
436,  holding  repealed  statute  is  re-enacted  where  it  is  referred  to  and  adopted 
in  new  statute. 
Proper  parties  In  salt  affecting  fixing  of  rates. 

Cited  in  San  Francisco  Gas  &  Electric  Co.  v.  San  Francisco,  164  Fed.  888, 
holding  in  suit  by  gas  company  against  city  to  enjoin  enforcement  of  ordinance 
fixing  rate,  temporary  restraining  order  may  properly  include  all  consumers, 
although  not  parties  to  record  they  being  real  parties  in  interest,  the  city  being 
a  consumer,  and  the  consumers  being  so  numerous  to  name  all  as  parties;  San 
Diego,  Land  &  Town  Co.  v.  Jasper,  189  U.  S.  439,  47  L.  ed.  893.  23  Sup.  Ct. 
Rep.  571,  holding  court  can  consider  merits  of  controversy  to  have  water  rates 
fixed  which  is  defended  by  board  of  supervisors  although  those  who  set  pro- 
ceeding in  motion  have  defaulted. 
Powers  of  board  of  supervisors. 

Cited  in  Glide  v.  Superior  Ct.  147  Cal.  30,  81  Pac.  225,  on  power  of  board 
of  county  supervisors  to  destroy  rights  of  land  owners  on  reclamation  project. 

6  L.  R.  A.  763,  PINE  CITY  v.  MUNCH,  42  Minn.  342,  44  N.  W.  197. 
What  are  nuisances. 

Cited  in  Houlton  v.  Titcomb,  102  Me.  285,  10  L.R.A.(N.S.)  583,  120  Am.  St. 
Rep.  492,  66  Atl.  733,  holding  that  a  thing  is  not  a  nuisance  simply  because  a 
•city  ordinance  declares  it  such,  but  the  state  may  declare  what  will  be  a  nui- 
sance in  law. 

Cited  in  notes  (20  Am.  St.  Rep.  136)   on  power  to  declare  what  are  nuisances; 
(107  Am.  St.  Rep.  200,»224)   on  what  are  public  nuisances. 
Abatement  of  nuisance. 

Cited  in  Re  Debs,  158  U.'S.  587,  39  L.  ed.  1103,  15  Sup.  Ct.  Rep.  900,  holding 
obstruction  of  public  highway  subject  to  abatement  in  equity  at  instance  of  gov- 
ernment; Hutchinson  Twp.  v.  Filk,  44  Minn.  537,  47  N.  W.  255,  holding  that  city 
may  maintain  civil  action  to  abate  nuisance  constituting  obstruction  to  public 
highway;  Huron  v.  Bank  of  Volga,  8  S.  D.  451,  59  Am.  St.  Rep.  769,  66  X.  W. 
815,  and  Red  Wing  v.  Guptil,  72  Minn.  261,  41  L.  R.  A.  324,  71  Am.  St.  Rep. 
485,  75  N.  W.  234,  holding  that  municipal  corporation  authorized  by  charter  to 
abate  or  to  compel  abatement  of  public  nuisances,  may  maintain  action  in  equity 
for  that  purpose;  Buffalo  v.  Harling,  50  Minn.  556,  52  N.  W.  931,  holding  that 
city  may  maintain  action  to  enjoin  erection  of  building  for  private  use  on  public 
ground;  Llano  v.  Llano  County,  5  Tex.  Civ.  App.  136,  23  S.  W.  1008,  holding 
action  to  abate  county  jail  and  cesspool  as  nuisances  maintainable  by  city;  Phila- 
delphia v.  Lyster,  3  Pa.  Super.  Ct.  480,  holding  ordinance  prohibiting  collection 
of  garbage  without  permit  not  enforceable  by  injunction,  unless  act  per  se  nui- 
sance; Khmer  v.  Munch.  107  Minn.  379,  120  N.  W.  374,  on  right  of  village 
.to  prevent  abatement  of  dam. 


1191  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  765 

Cited  in  footnote  to  Pfingst  v.  Senn,  21  L.  R.  A.  569,  which  denies  right  to 
«njoin  as  nuisance  prospective  use  of  premises  as  beer  garden. 

Cited  in  notes  (51  L.  R.  A.  660,  661)  on  right  of  municipality  to  maintain  suit 
to  enjoin  public  nuisance;  (42  L.  R.  A.  823)  on  injunctions  by  municipalities 
against  nuisances  upon  highways  and  streets;  (41  L.  R.  A.  323)  on  injunctions 
by  municipal  corporations  against  nuisances  affecting  public  morals,  peace  and 
good  order,  and  health  and  safety;  (9  L.  R.  A.  716)  on  abatement  of  nuisance 
by  action;  (8  L.  R.  A.  831)  on  abatement  of  public  nuisances;  (20  L.  R.  A.  165) 
on  power  of  equity  to  grant  mandatory  injunctions  as  to  nuisances;  (38  L.  R. 
A.  327  I  on  municipal  power  over  nuisances  affecting  safety,  health,  and  personal 
-comfort;  (36  L.  R.  A.  593,  597,  599,  607)  on  power  of  municipal  corporations  to 
define,  prevent,  and  abate  nuisances;  (59  L.  R.  A.  850)  on  right  to  dam  back 
water  of  stream  as  against  public;  (47  Am.  St.  Rep.  545)  on  power  of  municipal 
authorities  and  local  board  of  health  to  abate  nuisances. 
Justification  of  nuisance. 

Cited  in  Rand  Lumber  Co.  v.  Burlington,  122  Iowa,  209,  97  N.  W.  1096,  holding 
that  legislative  authority  to  construct  sewer  will  not  justify  nuisance;  Georgia 
R.  &  Bkg.  Co.  v.  Maddox,  116  Ga.  82,  42  S.  E.  315,  holding  unnecessary  switching 
in  railroad  terminal  yard  on  Sunday,  a  nuisance;  Winona  v.  Botzet,  23  L.R.A. 
(X.S)  215,  94  C.  C.  A.  563,  169  Fed.  332,  holding  legislative  authority  no  defense 
to  nuisance,  when  nuisance  results  from  manner  of  doing  authorized  act ;  Mc- 
Kim  v.  Philadelphia,  217  Pa.  248,  19  L.R.A.  (X.S.)  515,  66  Atl.  340,  holding 
that  the  legislative  authority  that  will  shelter  an  actual  nuisance  in  a  street 
must  be  express,  or  a  clear  and  unquestionable  implication  from  the  powers 
conferred,  certain  and  unambiguous. 

Cited  in  note  (9  L.  R.  A.  714)  on  justification  of  nuisance  under  legislative 
authority. 

6  L.  R.  A.  765,  ALBERTI  v.  NEW  YORK,  L.  E.  &  W.  R.  CO.  118  N.  Y.  77,  23 

N.  E.  35. 
Duty  to  use  ordinary  care  to  prevent  aggravation  of  Injury. 

Cited  in  Caven  v.  Troy,  15  App.  Div.  167,  44  N.  Y.  Supp.  244,  holding  injured 
person  must  use  ordinary  care  to  effect  cure  but  that  mistake  of  his  physician 
in  treatment  will  not  shield  wrongdoer. 
"Waiver   of   statutory   privilege   agrainst   testimony. 

Cited  in  Pence  v.  Waugh,  135  Ind.  154,  34  X.  E.  860;  Kern  v.  Kern,  154  Ind. 
::.->.  .->.">  X.  E.  1004;  McMaster  v.  Scriven,  85  Wis.  168,  39  Am.  St.  Rep.  828,  55 
X.  W.  149, —  holding  that  testator  who  requests  his  attorney  to  witness  his  will 
thereby  waives  privilege  of  statute;  Re  Downing,  118  Wis.  591,  95  N.  W.  876, 
holding  that  attorney  drafting  will,  may,  at  its  probate,  testify  as  to  directions 
given  by  testator;  Re  Mullin,  110  Cal.  254,  42  Pac.  645,  holding  that  testator 
waives  statutory  privilege  by  requesting  his  physician  to  witness  will,  and  latter 
may  testify  as  to  testator's  mental  capacity;  Morris  v.  Xew  York,  O.  &  W.  R.  Co. 
148  N.  Y.  92,  51  Am.  St.  Rep.  675,  42  X.  E.  410,  holding  that  patient  waives  statu- 
tory privilege  as  to  information  gained  by  two  physicians  at  same  examination 
by  calling  one  of  them  as  a  witness;  Foley  v.  Royal  Arcanum,  151  N.  Y.  204, 
56  Am.  St.  Rep.  621,  45  X.  E.  456,  Affirming  78  Hun,  225,  28  X.  Y.  Supp.  952, 
holding  that  insured  may  waive  statutory  privilege  as  to  testimony  of  physician 
by  stipulation  in  insurance  contract;  Corey  v.  Bolton,  31  Misc.  141,  63  X.  Y. 
Supp.  915,  holding  that  natural  guardian  of  infant  may  waive  protection  of  stat- 
ute which  forbids  physician  from  disclosing  information  acquired  in  professional 
capacity;  Trull  v.  Modern  Woodmen,  12  Idaho,  326,  85  Pac.  1081,  10  A.  &  E. 


6  L.R.A.  765]  L.  R.  A.  CASES  AS  AUTHORITIES.  1192: 

Ann.  Cas.  53,  holding  clause  in  contract  of  insurance  making  testimony  of  phy- 
sician competent  enforceable:  Western  Travelers'  Acci.  Asso.  v.  Munson,  73  Xeb. 
866,  1  L.R.A.(N.S.)  1073,  103  X.  W.  688,  holding  secrecy  enjoined  upon  physi- 
cian by  statute  may  be  waived  by  express  stipulation  of  patient;  Clifford  v.  Den- 
ver &  R.  G.  R.  Co.  188  X.  Y.  355,  80  X.  E.  1094,  on  waiver  of  secn-cy  by 
patient;  Marquardt  v.  Brooklyn  Heights  R.  Co.  126  App.  Div.  273,  110  X.  Y. 
Supp.  657,  holding  privilege  waived  by  calling  physician  as  witness. 
Opinion  of  physician. 

Cited  in  Reynolds  v.  Xiagara  Falls,  81  Hun,  356,  30  X.  Y.  Supp.  954,  holding 
that  physician  may  express  opinion  about  continuance  of  known  present  condition 
of  plaintiff's  limb;  Penny  v.  Rochester  R.  Co.  7  App.  Div.  603,  40  X.  Y.  Supp. 
172,  holding  that  physician  may  testify  that  wound  which  had  broken  out  after 
apparently  healing  may  do  so  again;  Saltzman  v.  Brooklyn  City  R.  Co.  73  Hun, 
568,  26  N.  Y.  Supp.  311,  holding  that  physician  may  testify  that  in  his  opinion 
injury  is  liable  to  grow  worse;  Barr  v.  Kansas  City,  121  Mo.  31,  25  S.  W.  502, 
holding  medical  testimony  that  plaintiff's  injuries  would  probably  shorten  his 
life,  admissible;  Quinn  v.  O'Keeffe,  75  X.  Y.  S.  R.  578,  41  X.  Y.  Supp.  116, 
holding  testimony  that  injury  is  capable  of  producing  certain  conditions  indicated 
by  plaintiff's  symptoms,  admissible;  Wolf  v.  Third  Ave.  R.  Co.  67  App.  Div.  613, 
74  N.  Y.  Supp.  336,  holding  medical  evidence  as  to  propriety  of  operation  neces- 
sary for  plaintiff's  relief,  competent  in  negligence  action;  Cross  v.  Syracuse,  200 
N.  Y.  397,  94  X.  E.  184,  21  Ann.  Cas.  324,  holding  that  opinion  evidence  is 
properly  received  as  to  probable  effect  of  existing  condition. 

Distinguished  in  Clegg  v.  Metropolitan  Street  R.  Co.   1  App.  Div.  211.  37  N. 
Y.  Supp.  130,  holding  that  medical  witness  may  testify  as  to  probable  effects  of 
present  condition  of  injured  person. 
Photographs  as  evidence. 

Cited  in  Lake  Erie  &  W.  R.  Co.  v.  Wilson,  189  111.  96,  59  X.  E.  573,  holding 
accurate  photographs  of  scene  of  accident  taken  about  time  of  injury,  admissible; 
Warner  v.  Randolph,  18  App.  Div.  464,  79  X.  Y.  S.  R.  1116,  45  X.  Y.  Supp.  1112, 
and  Dederichs  v.  Salt  Lake  City  R.  Co.  14  Utah,  141,  35  L.  R.  A.  807,  46  Pac. 
656,  holding  accurate  photograph  of  place  of  accident  admissible  in  action  for 
personal  injuries;  Cooper  v.  St.  Paul  City  R.  Co.  54  Minn.  384,  56  X.  W.  42. 
holding  photograph  accurately  representing  portions  of  plaintiff's  body,  adini~- 
sible;  Baxter  v.  Chicago  &  N.  W7.  R.  Co.  104  Wis.  325,  80  N.  W.  644,  holding, 
-photographs  of  plaintiff's  injured  leg  admissible  in  action  for  personal  injuries; 
Howard  v.  Illinois  Trust  &  Sav.  Bank,  189  111.  577,  59  X'.  E.  1106,  holding  en- 
larged photographs  of  original  deed  in  evidence  admissible  where  alteration  is 
claimed;  People  v.  Webster,  139  X'.  Y.  83,  34  X.  E.  730,  holding  photograph  of 
deceased  admissible  on  murder  trial  to  show  his  physical  characteristics  where 
self-defense  is  set  up;  Xies  v.  Broadhead,  75  Hun,  256,  27  X*.  Y.  Supp.  52,  holding 
verification  of  picture  by  photographer  not  essential  to  its  admissibility;  Cun- 
ningham v.  Fair  Haven  &  W.  R.  Co.  72  Conn.  249,  43  Atl.  1047,  holding  that 
accuracy  of  photograph  of  physical  object  must  be  proved  before  it  can  be  re- 
ceived; McKarren  v.  Boston  &  XT.  Street  R.  Co.  194  Mass.  179,  80  XT.  E.  477r 
10  A.  &  E.  Ann.  Cas.  961,  holding  photographs  of  portion  of  body  of  injured  per- 
son taken  in  presence  of  physician  testifying,  and  under  his  direction,  must 
be  considered  as  forming  part  of  his  evidence,  though  photographer  not  nailed: 
Davis  v.  Adrian,  147  Mich.  305,  110  X.  W.  1084,  holding  photograph  of  sore 
claimed  to  have  formed  as  result  of  injury,  evidence  competent  to  be  presented 
to  jury;  Curtis  v.  Xew  York,  X.  H.  &  H.  R.  Co.  32  R.  I.  547,  80  Atl.  127. 
holding  that  photographs  of  places  and  things  for  purpose  of  aiding  jury  in 
applying  facts  proved  are  admissible;  Smith  v.  Central  Vermont  R.  Co.  80  Vt. 


1193  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  770 

217,  67  Atl.  535,  holding  photographs  of  ground  burned  over,  combustible  mate- 
rial on  right  of  way  of  railroad,  and  remains  of  such  material  admissible,  though 
photographer  not  called. 

Cited  in  notes   (35  L.  R.  A.  803)   proof  of  correctness  of  photograph  offered  as 
evidence;    (35  L.R.A.  808)   photograph  of  part  of  body  as  evidence;    (75  Am.  St. 
Rep.  470,  473)   on  photograph  as  evidence. 
Exhibition   of   injured   limb. 

Cited  in  Arkansas  River  Packet  Co.  v.  Hobbs,   105  Tenn.  40,   58  S.  W.  278, 
holding  that  plaintiff  may  voluntarily  exhibit  injured  limb  to  jury. 
Compensation  for  personal  injury. 

Cited  in  Louisville  &  X.  R.  Co.  v.  Melton,  127  Ky.  291,  105  S.  W.  366,  holding 
verdict  of  $22,000  damages  for  injuries  sustained  by  young  and  healthy  man, 
who  was  made  complete  wreck,  not  excessive;  Purcell  v.  Duncan  Co.  107  App. 
Div.  503,  95  N.  Y.  Supp.  278,  holding  elements  which  combine  to  determine  ques- 
tion as  to  what  is  adequate  compensation  for  injuries  are  same  whether  person 
"be  married  or  single,  rich  or  poor;  Madigan  v.  Schaghticoke,  143  App.  Div.  888, 
]2S  X.  Y.  Supp.  800,  holding  that  in  action  for  tort  where  only  compensatory 
damages  are  recoverable,  evidence  as  to  wealth  of  defendant  is  inadmissible. 

Cited  in  notes  (33  Am.  St.  Rep.  551)  on  measure  of  damages  as  affected  by 
pecuniary  circumstances  of  parties;  (85  Am.  St.  Rep.  837)  on  evidence  of 
domestic  relations  of  persons  seeking  recovery  for  personal  injuries. 

6  L.  R.  A.  770,  FRANKLIN  v.  BROWN,  118  N.  Y.  110,  27  N.  Y.  S.  R.  955,  16 

Am.  St.  Rep.  744,  23  N.  E.  126. 
Landlord  and  tenant;   implied   covenants. 

Cited  in  Daly  v.  Wise,  132  N.  Y.  310,  16  L.  R.  A.  238,  30  N.  E.  837,  holding 
covenant  against  inherent  defects  not  implied  in  lease  of  unfurnished  dwelling 
for  definite  term;  Edwards  v.  McLean,  122  X.  Y.  307,  25  N.  E.  483,  Affirming 
23  Jones  &  S.  131,  holding  infectious  disease  upon  premises  after  execution  of 
lease,  but  before  commencement  of  term,  not  relieve  tenant  from  liability  for  rent; 
Rotter  v.  Goerlitz,  16  Daly,  485,  12  N.  Y.  Supp.  210,  raising  question  as  to  doc- 
trine that  lease  of  furnished  house  or  apartment  implies  fitness  for  occupancy: 
Davis  v.  George,  67  N.  H.  397,  39  Atl.  979,  holding  covenant  that  furnished 
dwelling  is  fit  for  occupancy,  not  implied  in  lease  for  term  of  years;  Ingalls  v. 
Hobbs,  156  Mass.  351,  16  L.  R.  A.  52,  footnote  p.  51,  32  Am.  St.  Rep.  460,  31  X. 
E.  286,  holding  lease  of  furnished  dwelling  for  limited  term  implies  fitness  for 
immediate  occupation;  Meserole  v.  Hoyt,  161  X.  Y.  62,  55  N.  E.  274,  Affirming 
34  App.  Div.  33,  55  X.  Y.  Supp.  1072,  holding  statute  relieving  lessee  from 
liability  for  rent  upon  premises  becoming  unfit  for  occupancy  without  his  fault, 
not  applicable  when  defect  existed  at  time  lease  made,  in  absence  of  misrepre- 
sentation of  lessor;  Schwalbach  v.  Shinkle,  W.  &  K.  Co.  97  Fed.  485,  holding 
lessor  not  liable  for  personal  injury  by  reason  of  unsafe  condition  of  premises 
for  purpose  for  which  leased  if  defect  unknown,  and  not  apparent  on  reasonable 
inspection;  Prahar  v.  Tousey,  93  App.  Div.  509,  87  X.  Y.  Supp.  845,  holding  that 
landlord  does  not  impliedly  warrant  fitness  of  leased  premises  for  proposed  use; 
Cnstarrnotte  v.  Xicchia,  76  App.  Div.  372,  78  X.  Y.  Supp.  498,  holding  landlord's 
covenant  to  repair  not  implied  from  striking  out  of  lease  clause  requiring  tenant 
to  do  so;  Smith  v.  Donnelly,  93  App.  Div.  573,  87  N.  Y.  Supp.  893,  denying  land- 
lord's absolute  duty  to  disclose  to  tenant  that  upper  window  sash  would  fall  out 
if  pulled  entirely  down:  Tallman  v.  Murphy,  120  X.  Y.  354,  24  X.  E.  716  (dis- 
senting opinion)  majority  holding  that  smoke  and  odors  of  coal  gas  from  flues 
of  adjoining  tenants,  and  explosions,  rendering  premises  untenantable,  consti- 


6  L.R.A.  770]  L.  R.  A.  CASES  AS  AUTHORITIES.  1104 

tutes  eviction;  Rubens  v.  Hill,  115  111.  App.  572,  disapproving  doctrine  that  there 
is  implied  covenant  or  warranty  that  premises  are  fit  for  occupancy  in  leas*1  <v 
furnished  house:  Walker  v.  Newman,  146  111.  App.  456,  holding  that,  in  {i.bseccs 
of  covenant  against  infectious  diseases,  fat-fc  that  after  lease  of  apartment  and 
possession  by  lessee,  persons  in  another  portion  of  building  are  stricken  with 
small-pox,  is  no  defense  to  action  for  rent;  Schemer  Press  v.  Perlman.  K30  App. 
Div.  578,  115  X.  Y.  Supp.  40.  holding  recital  in  lease  "to  be  used  and  occupied 
for  printing  business"  not  construed  to  contain  implied  warranty  loft  was  suitable 
for  establishment  of  twelve  printing  presses  running  at  high  rate  of  speed,  but 
tenant  obliged  to  rely  on  express  covenant  as  to  carrying  capacity  of  floor; 
Flannery  v.  Simons,  47  Misc.  125,  93  X.  Y.  Supp.  544,  holding  tenant  vacating 
premises  because  of  offensive  odors  from  fixed  ice  chest  therein  liable  for  rent 
in  absence  of  express  covenant  that  premises  were  habitable,  and  fit  for  occu- 
pancy; Faron  v.  Jones,  49  Misc.  48,  96  N.  Y.  Supp.  316.  holding  tenant  sued 
for  rent  could  not  counterclaim  for  cost  of  replacing  engine  which  broke  down, 
there  being  no  express  covenant  by  landlord  to  repair;  Brick  v.  Favilla,  51  Misc. 
551,  101  N.  Y.  Supp.  970,  holding  landlord  not  bound  to  make  changes  or  repairs 
in  his  building,  in  absence  of  agreement. 

Cited  in  footnotes  to  Angevine  v.  Knox-Goodrich,  18  L.  R.  A.  264,  which  denies 
implied  warranty  that  house  leased  for  dwelling  habitable. 

Cited  in  notes  (33  L.R.A.  456)  on  implied  covenant  in  lease  as  to  fitness  of 
property  for  purpose  intended;  (9  Eng.  Rul.  Cas.  458,  459)  on  implied  obligation 
of  landlord  to  repair,  and  implied  warranty  of  fitness  of  premises  for  purposes 
for  which  they  are  let. 

Distinguished    in    Ash   v.   Meeks,    134   App.    Div.    156,    118   X.   Y.   Supp.   821, 
holding  rule  of  absence  of  either  implied  covenant  on  part  of  lessor  to  repair, 
or  of  implied  representation  that  premises  are  tenantable,   inapplicable  in   case 
of  fraudulent  misrepresentation  or  concealment. 
Doctrine  of  caveat   emptor  applicable   to   leaseholds. 

Cited  in  Meserole  v.  Sinn,  34  App.  Div.  35,  53  X.  Y.  Supp.  1072;  Watson  v. 
Almirall,  61  App.  Div.  430,  70  X.  Y.  Supp.  662;  Rotter  v.  Goerlitz,  16  Daly. 
485,  12  X.  Y.  Supp.  210, —  holding  that  maxim  caveat  emptor  applies  to  leasehold 
of  dwelling;  Zerega  v.  Will,  34  App.  Div.  490,  54  X.  Y.  Supp.  361,  holding  that 
where  tenant  has  opportunity  to  examine  premises  he  assumes  risk  of  their  con- 
dition; Sherman  v.  Ludin,  79  App.  Div.  38,  79  X.  Y.  Supp.  1066,  holding  that 
tenant  assumes  risk  of  condition  of  premises,  in  absence  of  lessor's  express  agree- 
ment; Stein  v.  Rice,  23  Misc.  351,  51  X.  Y.  Supp.  320,  holding  that  lessee  of  dwell- 
ing at  seashore  resort  assumes  risk  of  sufficiency  of  water  supply  in  absence  of  ex- 
press covenant  by  lessor;  Barrett  v.  Lake  Ontario  Beach  Improv.  Co.  68  App. 
Div.  618,  74  X.  Y.  Supp.  301,  holding  that  person  using  toboggan  slide  assumes 
risk  of  defective  construction  apparent  to  senses;  Charlie's  Transfer  Co.  v.  Malone, 
159  Ala.  333,  48  So.  705,  holding  complaint  for  negligence  of  landlord  in  not 
keeping  water  pipes  in  sound  condition  demurrable  for  failure  to  show  covenant 
to  repair  by  landlord  or  agreement  in  respect  to  condition  of  building;  Steefel  v. 
Rothschild,  179  X.  Y.  277.  72  X.  E.  112,  1  A.  &  E.  Ann.  Cas.  676,  holding  landlord 
liable  to  tenant  for  loss  to  stock  and  fixtures  and  by  enforced  removal  and  for 
rent  paid  in  advance  upon  lease  of  building  which  landlord  learned  was  unsafe 
after  execution  of  lease,  but  before  demise  took  effect,  where  defects  were  con- 
cealed; Smith  v.  Donnelly,  45  Misc.  451,  92  X.  Y.  Supp.  43,  holding  landlord 
not  obliged  to  examine  premises  for  hidden  dangerous  defect,  but  is  liable  for 
personal  injury  only  by  reason  of  failure  to  disclose  defect  of  which  he  has 
actual  knowledge  at  time  of  making  lease;  Jacobs  v.  Morand,  59  Misc.  201.  1]0 
X.  Y.  Supp.  208,  holding  lessee  runs  risk  of  presence  of  vermin  on  premises  in 


1195  '    L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A    775 

absence  of  express  covenant  by  lessor  to  keep  premises  free  from  vermin,  there 
being  no  fraud,  deceit  or  wrongdoing  on  lessor's  part;  Richmond  v.  Lee,  123  App. 
Div.  281,  107  X.  Y.  Supp.  1072,  holding  tenant  could  not  recover  from  landlord 
cost  of  making  new  sewer  connection  after  one  existing  when  premises  were 
leased  had  been  destroyed  by  owners  of  adjacent  lots  across  which  it  ran;  Floyd- 
Jones  v.  Schaan,  ]29  App.  Div.  84,  113  X.  Y.  Supp.  472,  holding  tenant  not 
justified  in  vacating  and  refusing  to  pay  rent  on  account  of  noise  and  vibration 
caused  by  operation  of  electric  light  and  power  plant  on  adjoining  premises. 

Cited  in  notes  (34  L.  R.  A.  824)  on  liability  of  landlord  for  injury  to  tenant 
from  defect  in  premises;  (46  L.  R.  A.  83)  on  liability  of  owner  of  premises  of 
which  he  is  not  in  possession  for  injuries  from  defects;  (36  L.R.A.( X.S.)  909) 
on  duty  of  landlord  to  keep  plumbing  usable;  (38  Am.  St.  Rep.  477,  479)  on 
what  justifies  tenant  in  abandoning  leased  premises;  (66  Am.  St.  Rep.  785)  on. 
liability  of  landlord  letting  premises  in  defective  condition. 
Agreements  as  to  teimntabilfty. 

Cited  in  Hamilton  v.  Emerson,  31  Misc.  258,  64  N.  Y.  Supp.  48,  holding  evidence 
of  contemporaneous  verbal  agreement  as  to  tenantability  inadmissible  where 
written  lease  disclaims  lessor's  responsibility  for  condition  or  defects. 

6  L.  R.  A.  773,  Re  BALLOT  ACT,  16  R.  I.  766,  19  Atl.  656. 
I :  I  <•!•  t  i  mi  -  :    form  of  printed  ballots. 

Cited  in  footnotes  to  State  ex  rel.  Mize  v.  McElroy,  16  L.  R.  A.  279,  which. 
holds  name  written  on  ballot  in  place  of  printed  name  erased  cannot  be  counted; 
State  ex  rel.  McCarthy  v.  Moore,  59  L.  R.  A.  447,  which  sustains  prohibition! 
against  placing  on  official  ballot,  name  of  unsuccessful  candidate  for  party  nom- 
ination at  primary  election;  State  ex  rel.  Phelan  v.  Walsh,  17  L.  R,  A.  364,  in. 
which  various  decisions  as  to  validity  of  ballots  are  made. 

Cited  in  note    (10  L.  R.  A.  151)    on  form  of  ballot. 

G  L.  R.  A.  775,  WARWICK  v.  WARWICK,  86  Va.  596,  10  S.  E.  843. 
\\  ill-:    sufficiency   of   execution. 

Cited  in  Re  Seaman,  146  Cal.  463,  106  Am.  St.  Rep.  53,  80  Pac.  700,  2  A.  & 
E.  Ann.  Cas.  726,  holding  statutory  requirement  that  will  be  signed  by  testator 
at  end  thereof  not  complied  with  where  testator  and  witnesses  signed  under- 
neath printed  matter  on  part  of  paper  intended  to  be  outside  thereof  when  folded. 

Cited  in  footnotes  to  Re  Andrews,  48  L.R.A.  662,  which  holds  signature  to- 
will  on  second  page  without  anything  to  connect  portions  contained  on  third 
page  insufficient:  Shaw  v.  Camp,  36  L.  R.  A.  112,  which  holds  unsigned,  un- 
attested  sheet  attached  to  will  made  effective  by  subsequent  codicil;  Irwin  v. 
Jacques,  69  L.R.A.  422,  which  holds  will  signed  on  last  page  is  not  signed  at 
end  as  required  where  a  dispositive  clause  extends  lengthwise  of  last  page  from 
near  bottom  to  near  top  in  no  way  connected  witli  the  body  of  the  instrument. 

Cited  in  note  (29  L.R.A.  (X.S. )  04,  65)  on  name  in  body  of  will  as  signature. 
Holographic  wills. 

Cited  in  Baker  v.  Brown.  83  Miss.  797,  36  So.  539,  holding  that  writing  of 
caption  "My  Will''  by  another  does  not  invalidate  holographic  will;  Meads  v. 
Earle,  205  Mass.  557,  29  L.R.A. (X.S.)  67,  91  X.  E.  916.  holding  that  holographic 
•will  with  name  written  in  exordium  of  instrument  by  testator  with  intention 
of  making  it  her  signature,  was  properly  signed;  Xoyes  v.  Gerard,  40  Mont.  201, 
26  L.R.A. (X.S.)  1145.  105  Pac.  1017.  holding  instrument  entirely  written,  dated, 
and  signed  by  hand  of  testator  except  following  printed  matter  "Laurel,  Mont. 
,  190 — ."  invalid  as  holographic  will;  Dinning  v.  Dinning,  102  Va.  469, 


6  L.R.A.  775]  L.  R.  A.  CASES  AS  AUTHORITIES.  1190 

46  S.  E.  473,  holding  signature  to  holographic  will  in  following  form  sufficient: 
"I.  W D —  — ,  say  this  is  my  last  will  and  testament." 

Cited  in  footnotes  to  Re  Booth,  12  L.  R.  A.  452,  which  holds  holographic 
will  containing  maker's  name  at  beginning  only,  insufficiently  executed;  Neer  v. 
Cowhick,  18  L.  R.  A.  588,  which  holds  necessity  of  two  witnesses  to  make  holo- 
graphic wills  valid,  not  dispensed  with  by  statute. 

Cited  in  notes  (104  Am.  St.  Rep.  26)  on  holographic  wills;  (14  L.R.A.(N.S.) 
968)  on  necessity  of  witnesses  to  holographic  will. 

6  L.  R.  A.  778,  NEWCOMB  v.  BOSTON  PROTECTIVE  DEPARTMENT,  151  Mass. 

215,  24  N.  E.  39. 
What   are    public   charities. 

Followed  in  Bates  v.  Worcester  Protective  Department,  177  Mass.  134,  58 
N.  E.  274,  holding  corporation  to  assist  in  saving  life  and  property  at  fire,  not  a 
public  charity. 

Cited  in  Minns  v.  Billings,  183  Mass.  128,  97  Am.  St.  Rep.  420,  66  N.  E.  593, 
holding  trust  fund  maintained  by  gifts  and  bequests,  entirely  within  trustees' 
control,  for  purpose  of  assisting  members  of  certain  association,  a  public  charity : 
Hopkins  v.  Crossley,  138  Mich.  565,  101  N.  W.  822,  holding  fund  mainly  derived 
from  members  of  volunteer  fire  department,  a  corporation,  which  on  its  dissolu- 
tion attempted  to  dispose  of  fund  to  charitable  uses  and  failed,  did  not  escheat 
to  state;  Bruce  v.  Central  M.  E.  Church,  147  Mich.  241,  10  L.R.A.  (N.S.)  84,  110 
N.  W.  951,  11-  A.  &  E.  Ann.  Cas.  150,  as  to  whether  fire  insurance  patrol  is 
charitable  corporation. 

Cited  in  note   (2  L.R.A. (N.S. )   558)   on  what  are  charitable  institutions  within 
rule  exempting  from  liability  for  negligence. 
Liability    for    negllgrence. 

Followed  in  Bates  v.  Worcester  Protective  Department,  177  Mass.  134,  58  N. 
E.  274,  holding  corporation  to  assist  in  saving  property  at  fire  liable  for  property 
of  which  its  officers  took  possession  at  fire,  and  negligently  permitted  destruction. 

Cited  in  George  v.  Cypress  Hills  Cemetery,  32  App.  Div.  305.  52  N.  Y.  Supp. 
1097  (dissenting  opinion),  majority  holding  cemetery  association  not  exempt 
from  liability  for  negligence  as  charitable  corporation ;  Powers  v.  Massachusetts 
Homeopathic  Hospital,  47  C.  C.  A.  128,  109  Fed.  300,  holding  public  hospital 
chartered  as  charitable  corporation  not  liable  for  nurse's  negligence;  Haggertv 
v.  St.  Louis,  K.  &  N.  W.  R.  Co.  100  Mo.  App.  447,  74  S.  W.  456,  holding  railroad 
relief  department  liable  for  negligence  in  selecting  physician  to  treat  injured 
member;  Coleman  v.  Fire  Ins.  Patrol,  122  La.  638,  21  L.R.A. (N.S.)  815,  48  So. 
130,  16  A.  &  E.  Ann.  Cas.  1217,  holding  fire  insurance  patrol  liable  for  injury 
of  fireman,  in  collision  between  fire  truck  and  patrol  wagon,  though  fire  insuranca 
patrol  declared  by  its  charter  to  be  for  purpose  of  saving  life  and  for  benefit  of  all 
life  and  property;  Kellogg  v.  Church  Charity  Foundation,  128  App.  Div.  217, 
112  N.  Y.  Supp.  566,  holding  exemption  of  charitable  institutions  from  rule  of 
respondeat  superior  does  not  arise  from  fact  such  institutions  derive  no  profit  or 
benefit;  Hogan  v.  Hospital  Co.  63  W.  Va.  89,  59  S.  E.  943,  holding  hospital  con- 
ducted for  private  gain  liable  for  damages  to  its  patients  through  negligence  or 
misconduct  of  its  officers  or  employees. 

Cited  in  notes  (23  L.  R.  A.  201)  on  liability  of  charitable  institution  for 
negligence;  (7  L.  R.  A.  170)  on  liability  of  public  agencies  for  negligence  of 
their  servants;  (139  Am.  St.  Rep.  898,  907,)  on  liability  of  charitable  institution 
for  torts  of  servants  and  agents. 

Distinguished  in  Powers  v.  Massachusetts  Homeopathic  Hospital.  65  L.R.A. 
377,  47  C.  C.  A.  122,  109  Fed.  300,  holding  one  who  accepts  benefit  of  public  or 


3197  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  78S 

private  charity  enters  into  relation  which  exempts  benefactor  from  liability  for 
negligence  of  his  servants  in  administering  the  charity. 

6  L.  R.  A.  780,  XISSEN  v.  CRAMER,  104  N.  C.  574,  10  S.  E.  676. 
Slander;     privileged    publications. 

Cited  in  Gudger  v.  Penland,  108  X.  C.  599,  23  Am.  St.  Rep.  73,  13  S.  E.  168r 
holding  that  complaint  for  slander  need  not  negative  privilege  although  word* 
uttered  in  judicial  proceeding;  Gattis  v.  Kilgo,  128  X.  C.  409,  38  S.  E.  931,  hold- 
ing slanderous  words  uttered  by  college  president  on  trial  before  trustees  when' 
relevant  and  pertinent  to  issue,  privileged;  Cawfield  v.  Asheville  Street  R-  Co.  Ill 
N.  C.  599,  16  S.  E.  703,  holding  rebuke  of  opprobrious  epithets  applied  by  at- 
torney to  witness,  when  supported  by  evidence,  within  discretion  of  court;  Myers- 
v.  Hodges,  53  Fla.  209,  44  So.  357,  holding  defamatory  words  published  by  parties,, 
counsel  or  witnesses  in  due  course  of  judicial  procedure  not  privileged  unless, 
connected  with,  or  relevant  or  material  to  cause  in  hand  or  subject  of  inquiry: 
Perry  v.  Perry,  153  X.  C.  267,  31  L.R.A.(X.S-)  880,  69  S.  E.  130,  holding  that 
affidavit  in  resisting  motion  in  court  which  states  testimony  was  false  is  abso- 
lutely privileged;  Baggett  v.  Grady,  154  X.  C.  344,  70  S.  E.  618,  holding  that 
affidavits  filed  in  response  to  citation  by  court  and  used  while  considering  ques- 
tion of  granting  license  to  practice  law  are  absolutely  privileged. 

Cited  in  footnote  to  Morasse  v.  Brochu,  8  L.  R.  A.  524,  which  holds  actionable 
statement  by  priest  to  congregation  that  physician  excommunicated,  and  should 
not  be  employed  in  parish. 

Cited  in  notes   (9  L.R.A.  621)   on  libel  and  slander  in  general;    (9  Eng.  Rul. 
Cas.  52)   on  effect  of  malice  of  words  otherwise  privileged. 
Relation   of  corporation  officer  to  suit   in   which   corporation   In  party. 

Cited  in  Myers  v.  Hodges,  53  Fla.  216,  44  So.  357,  holding  president  of  corpo- 
ration defendant  in  chancery  suit  in  which  alleged  libelous  language  was  used 
of  president  not  stranger  to  such  suit. 

6  L.  R.  A.  783.  CAMPBELL  v.  JOXES,  52  Ark.  493,  12  S.  W.  1016. 
Fraudulent    conveyance    of    homestead. 

Cited  in  Gray  v.  Patterson,  65  Ark.  378,  67  Am.  St.  Rep.  937,  46  S.  W.  730r 
holding  that  creditors  cannot  complain  that  conveyance  of  homestead  is  fraudu- 
lent :  Isbell  v.  Jones,  75  Ark.  592,  88  S.  W.  593,  holding  there  is  no  restraint  up- 
on sale  or  conveyance  of  homestead  by  debtor. 

Distinguished  in  Gray  v.  Patterson,  65  Ark.  380,  67  Am.  St.  Rep.  937,  46  S.  W.. 
730,  by  Battle.  J..  dissenting,  as  not  considering  point  whether  conveyance  of 
homestead  in  consideration  of  maintenance  for  life  was  fraudulent;  McAndrew 
v.  Hollingsworth.  72  Ark.  450,  81  S.  W.  610,  holding  husband  cannot  devise- 
homestead  to  widow  exempt  from  claims  of  his  creditors. 
Cancelation  of  deed. 

Cited  in  \Yatters  v.  Wagley,  53  Ark.  511,  22  Am.  St.  Rep.  232,  14  S.  W.  774, 
holding  that  title  cannot  be  devested  or  conveyed  by  cancelation  of  grantee's  deed. 

Cited  in  note  (18  L.R.A.  (X.S.)  1168)  on  effect  of  destruction  or  cancelation,. 
or  redelivery  to  grantor  for  that  purpose,  of  delivered  but  unrecorded  deed. 

Distinguished  in  Ames  v.  Ames,  80  Ark.  11,  117  Am.  St.  Rep.  68,  96  S.  W.  144, 
holding  grantor  and  his  grantee,  cannot  assert  that  first  deed  was  accepted  and 
title  passed  thereby,  whei'e  grantee  tells  grantor  he  did  not  accept  first  deed,  be- 
cause not  satisfactory  and  grantor  thereupon  executed  new  deed. 
Exemption    of   proceeds    of    exempt    property. 

Cited  in  note  (19  L.  R.  A.  38)  on  how  far  proceeds  of  exempt  property  retain; 
exempt  character. 


C  L.R.A.  783]  L.  R.  A.  CASES  AS  AUTHORITIES.  1198 

When   -written   instrument   taUes  effect. 

Cited  in  Findley  v.  Means,  71  Ark.  290,  73  S.  W.  101,  holding  contract  de- 
livered to  obligee  to  take  effect  upon  certain  condition,  binding,  though  con- 
dition never  performed. 

Cited  in  note  (16  L.R.A.  (N.S.)  943)  on  effect  of  delivery  of  deed  to  grantee, 
•subject  to  extrinsic  condition;  (130  Am.  St.  Rep.  923,  927)  on  escrows. 

Distinguished  in  Graham  v.  Remmel,  76  Ark.  143,  88  S.  W.  899,  6  A.  &  E.  Ann. 
Cas.    167,   holding   parol   evidence   admissible  to   show  that   premium   note   was 
delivered  to  take  effect  only  if  policy  proved  satisfactory. 
Fraudulent  conveyance  to  relative. 

Cited  in  Wilks  v.  Vaughan,  73  Ark.  179,  83  S.  W.  913,  holding  conveyances  to 
near  relatives  by  debtor  shortly  before  judgment  obtained  against  him  sufficient  to 
cast  burden  of  proof  of  good  faith  upon  parties  to  them. 
Election  bet-ween  homestead  rights. 

Cited  in  Grimes  v.  Luster,  73  Ark.  269,  108  Am.  St.  Rep.  34,  84  S.  W.  223, 
holding  where  two  homestead  rights  accrue  to  minor,  selection  can  be  made  of 
one  to  exclusion  of  the  other. 

6  L.  R.  A.  7S5,  ADAMS  FEMALE  ACADEMY  v.  ADAMS,  65  N.  H.  225,  18 

Atl.  777,  23  Atl.  430. 
Doctrine  of  <•>    pres. 

Cited  in  Edgerly  v.  Barker,  66  X.  H.  472,  28  L.  R.  A.  342,  31  Atl.  900,  modi- 
fying gift  to  grandchildren  on  attaining  forty  years  to  take  effect  at  twenty ; 
Crow  ex  rel.  Jones  v.  Clay  County,  196  Mo.  270,  95  S.  W.  369,  on  doctrine  of  cy 
pres;  Keene  v.  Eastman,  75  N.  H.  193,  72  Atl.  213,  holding  that  absence  of 
provision  for  forfeiture  in  trust  deed  for  charity  is  evidence  that  donor  did 
not  intend  that  estate  should  revert  while  carrying  out  of  its  general  purpose 
is  practicable;  Pembroke  Academy  v.  Epsom  School  Dist.  75  X.  H.  409,  37 
L.R.A.  (X.S.)  659,  75  Atl.  100,  to  the  point  that  trust  fund  for  educational  pur- 
pose may  be  applied  by  court  where  particular  use  is  impracticable. 

Cited  in  footnotes  to  Crerar  v.  Williams,  21  L.  R.  A.  454,  which  holds  other 
mode  for  taking  effect  of  charity  will  be  provided  if  mode  pointed  out  in  will 
fails;  Kelly  v.  Xichols,  19  L.  R.  A.  413,  which  holds  doctrine  of  cy  pres  inappli- 
cable to  bequest  not  made  to  definite  charitable  use;  Gladding  v.  St.  Matthew's 
Church,  65  L.R.A.  252,  which  holds  that  legacy  to  a  particular  church  will  not 
foe  administered  cy  pres  after  termination  of  its  existence  in  behalf  of  deaf 
.mutes  for  whose  benefit  the  church  was. 

Cited  in  notes   (8  L.R.A. (X.S.)   398)   on  •equitable  control  of  discretion  vested 
in  trustee;    (14  L.R.A. (X.S.)   63,  145,  149)   on  enforcement  of  general  bequest  for 
•charity  or  religion. 
\Vliai    are   charitable   uses. 

.Cited  in  note   (63  Am.  St.  Rep.  259)   on  what  are  charitable  uses  or  trusts. 
Reconsideration;    law   of   the   case. 

Cited  in  Olney  v.  Boston  &  M.  R.  Co.  73  X.  II.  91,  59  Atl.  387,  holding  ques- 
tion of  law  once  decided  is  not  reconsidered  in  same  case,  except  upon  motion  for 
.rehearing. 

6  L.  R,  A.  788,  CEXTRAL  LITHOGRAPHING  &  ENGRAVING  CO.  v.  MOORE, 

75  Wis.  170,  17  Am.  St.  Rep.  186,  43  X.  W.  1124. 
Adoption   of  jury's  conclusion. 

Cited  in  Wright  v.  C.  S.  Graves  Land  Co.  100  Wis.  274,  75  X.  W.  1001,  to 
point  that  court  adopts  jury's  conclusion  by  refusing  to  set  aside  verdict. 


1199  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  792 

Contract   for  skill   anil   labor. 

Cited  in  Beck  &  P.  Lithographing  Co.  v.  Colorado  Mill.  &  Elevator  Co.  3  C. 
C.  A.  252,  10  U.  S.  App.  465,  52  Fed.  704,  holding  contract  to  make  designs, 
execute  engravings,  and  embody  them  on  stationery  not  contract  of  sale  but  one 
for  artistic  skill  and  labor;  Agnew  v.  Baldwin,  136  Wis.  268,  116  N.  W.  641, 
holding  promise  to  fill  lots  is  contract  for  services  and  not  sale  of  property,  and 
is  not  within  statute  of  frauds. 
Bailment. 

Cited  in  footnote  to  Sattler  v.  Hallock,  46  L.  R.  A.  679,  which  holds  bailment 
not  sale  created  by  contract  by  which  farmers  deliver  produce  at  their  factory  for 
manufacture  and  division  of  proceeds. 

Cited  in  notes  (17  L.  R.  A.  178)  on  vendor  as  bailee  of  vendee  after  contract 
perfected;  (37  Am.  St.  Rep.  540)  bailment  where  work  to  be  done  on  chattel. 

6  L.  R.  A.  792.  HUMPHREYS  v.  HOPKINS,  81  Cal.  551,  15  Am.  St.  Rep.  76, 

22  Pac.  892. 
Attachment  of  cars  and  rolling;  stock. 

Cited  in  Risdon  Iron  &  Locomotive  Works  v.  Citizens'  Traction  Co.  122  Cal. 
97,  68  Am.  St.  Rep.  25,  54  Pac.  529,  holding  cars,  trucks,  and  other  personal 
property  of  carrier  of  passengers,  attachable;  Davis  v.  Cleveland,  C.  C.  &  St. 
L.  R.  Co.  217  U.  S.  175,  54  L.  ed.  719,  27  L.R.A.(N.S.)  829,  30  Sup  Ct. 
Rep.  463,  18  Ann.  Cas.  907,  holding  that  foreign  railway  cars  coming  into  state 
in  course  of  interstate  commerce  are  liable  to  attachment ;  De  Rochemont  v. 
New  York  C.  &  H.  R.  R.  Co.  75  N.  H.  160,  29  L.R.A.(X.S.)  530,  71  Atl.  868, 
holding  that  foreign  freight  car  which  came  within  state  in  course  of  interstate 
commerce,  but  which  is  not  in  use  at  time  of  attachment  is  subject  to  attach- 
ment. 

Cited  in  notes   (64  L.R.A.  502)   on  attachment  or  garnishment  of  foreign  rail- 
road cars;    (104  Am.  St.  Rep.  663)   on  attachment  of  foreign  railroad  cars. 
Receivers;   foreign  jurisdictions. 

Cited  in  Grogan  v.  Egbert,  44  W.  Va.  78,  67  Am.  St.  Rep.  763,  28  S.  E.  714: 
Ward  v.  Pacific  Mut.  L.  Ins.  Co.  135  Cal.  236,  67  Pac.  124,  holding  that  foreign 
receiver  will  not  be  allowed  to  maintain  action  where  there  are  conflicting  claims 
of  domestic  creditors;  Lackmann  v.  Supreme  Council,  O.  C.  F.  142  Cal.  26,  75 
Pac.  583,  holding  domestic  creditor  entitled  to  fund  attached  as  against  foreign 
receiver;  Choctaw  Coal  &  Min.  Co.  v.  Williams- Echols  Dry  Goods  Co.  75  Ark. 
368,  87  S.  W.  632,  5  A.  &  E.  Ann.  Cas.  569,  holding  receiver  of  nonresident  or 
foreign  corporation  appointed  in  foreign  state  cannot  defeat  attachment  or  gar- 
nishment levied  or  served  before  he  acquires  possession,  by  virtue  of  rights  ac- 
quired solely  by  his  appointment  and  qualification;  Woodhull  v.  Farmers'  Trust 
Co.  11  N.  D.  164.  95  Am.  St.  Rep.  712,  90  X.  W.  795.  holding  property  of  non- 
resident defendant,  in  hands  of  receiver,  if  brought  within  state  for  lawful  pur- 
pose, cannot  be  seized  under  attachment  proceedings  in  action  brought  against 
nonresident  in  state  to  which  such  property  is  brought. 

Cited  in  footnote  to  State  v.  Hubbard.  39  L.  R.  A.  860,  which  holds  receiver 
not  an  agent  within  statute  as  to  embezzlement. 

Cited  in  notes  (8  L.  R.  A.  (52)  on  foreign  receivers;  (9  L.  R.  A.  601)  on  re- 
stricted authority  of  foreign  receivers;  (11  L.  R.  A.  480)  on  foreclosure  of 
railroad  mortgage,  appointment  of  receiver,  and  authority:  (20  L.  R.  A.  392) 
on  exclusiveness  of  jurisdiction  by  appointment  of  receiver;  (23  L.  R.  A.  54^1 
on  rights  of  receiver  as  to  property  outside  of  jurisdiction  in  which  he  is  ap- 
pointed. 


6  L.R.A.  792]  L.  II.  A.  CASES  AS  AUTHORITIES.  1200 

Distinguished  in  The  Willamette  Valley,  13  C.  C.  A.  635,  29  U.  S.  App.  447, 
66  Fed.  567,  holding  lienor  may,  without  obtaining  permission  of  court  appoint- 
ing receiver,  proceed  in  rem,  in  foreign  jurisdiction,  against  vessel  in  hands  of 
receiver,  which  lienor,  after  appointment  of  receiver,  has  furnished  with  coal  in 
foreign  jurisdiction. 

Disapproved  in  Jenkins  v.  Pureell.  29  App.  D.  C.  218,  9  L.R.A.  (X.S.)  1078, 
quashing  attachment  by  local  creditor  of  property  brought  within  local  juris- 
diction by  foreign  receiver  who  obtained  possession  in  foreign  jurisdiction. 

6  L.  R.  A.  799,  CARRIER  v.  CHICAGO,  R.  I.  &  P.  R.  CO.  79  Iowa,  80,  44  X.  W. 

203. 
Recovery  of  excessive  payment   to  public  service  corporation. 

Cited   in   note    (18   L.R.A. (X.S.)    127)    on   recovery  of   excessive  payments   to 
public  service  corporation. 
Limitation    of   actions;    effect    of   concealment    of    cause    of   action. 

Cited  in  Mereness  v.  First  Xat.  Bank,  112  Iowa,  14,  51  L.  R.  A.  411,  84  Am. 
St.  Rep.  318,  83  X.  W.  410,  and  Mather  v.  Rogers,  99  Iowa,  294,  68  X.  \\'.  7');). 
holding  that  fraudulent  concealment  of  cause  of  action  suspends  running  of 
statute  until  right  of  action  is  discovered;  Clark  v.  Ellsworth,  84  Iowa.  52i>.  .">! 
X.  W.  31,  holding  that  equity  will  relieve  against  judgment  obtained  by  fraud, 
which  by  reasonable  diligence  could  not  have  been  discovered  within  time  for 
application  for  retrial;  Baird  v.  Omaha  &  C.  B.  R.  &  Bridge  Co.  Ill  Iowa,  630, 
82  N.  W.  1020,  holding  that  limitation  to  recover  tax  voted  in  aid  of  resident 
bridge  company,  but  illegally  paid  to  foreign  company,  runs  only  from  discovery 
of  mistake;  Cook  v.  Chicago,  R.  I.  &  P.  R.  Co.  81  Iowa,  564,  9  L.R.A.  767; 
3  Inters.  Com.  Rep.  387,  25  Am.  St.  Rep.  512,  46  X.  W.  1080,  holding  running  of 
statute  against  action  for  unreasonable  freight  charge  suspended  where  facts 
fraudulently  concealed  by  defendant,  and  plaintiff  without  knowledge ;  Conditt 
v.  Holden,  92  Ark.  621,  135  Am.  St.  Rep.  206,  123  S.  W.  765,  holding  that  stat- 
ute of  limitations  does  not  begin  to  run  until  discovery  of  fraud  where  there 
has  been  fraudulent  concealment  of  cause  of  action;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Atchison  Grain  Co.  68  Kan.  596,  75  Pac.  1051,  1  A.  &  E.  Ann.  Gas.  639 
(dissenting  opinion),  on  preventing  statute  from  running  by  fraudulent  con- 
cealment of  cause  of  action;  Boyd  v.  Beebe,  64  W.  Va.  220,  17  L.R.A.  (X.S.)  60o, 
61  S.  E.  304,  holding  mere  silence  is  insufficient  to  prevent  running  of  statute, 
some  affirmative  action  being  required. 

Cited  in  footnotes  to  Sanborn  v.  Gale,  26  L.  R.  A.  864,  which  holds  running  of 
limitation  against  action  for  alienation  of  wife's  affections  not  prevented  by 
agreement  of  parties  to  adultery  known  to  husband  to  deny  same;  Moreness  v. 
First  Xat.  Bank,  51  L.  R.  A.  410,  which  holds  running  of  limitations  on  demand 
certificate  of  deposit,  not  interrupted  by  bank's  misrepresentations  in  denial  of 
liability;  Smith  v.  Blachley,  53  L.  R.  A.  849.  which  holds  running  of  limitation 
against  action  to  recover  back  money  not  prevented  by  fraud  unless  investigation 
prevented  by  affirmative  efforts;  Pietsch  v.  Milbrath,  68  L.R.A.  04o.  which 
holds  that  the  fraudulent  concealment  of  cause  of  action  at  law  will  not  pre- 
Arent  running  of  limitations  where  the  statute  expressly  states  that  it  shall  not 
run  under  such  circumstances  in  equity  cases. 

Cited  in  notes  (25  L.  R.  A.  569)  on  statutes  of  limitation  as  affected  by  con- 
cealment of  cause  of  action;  (8  L.  R.  A.  688)  on  statute  of  limitations  in  case 
ol  concealed  fraud;  (7  L.  R.  A.  820)  on  limitation  does  not  begin  to  run  until 
discovery  of  fraud:  (25  Am.  St.  Rep.  227:  16  Eng.  Rul.  Gas.  259)  as  to  when 
limitations  begin  to  run  in  case  of  fraud  or  concealment.  ** 

Distinguished   in   McBride   v.   Burlington,   C.   R.  &   X.  R.   Co.  97  Iowa,  95,   5!) 


1201  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  802: 

Am.  St.  Rep.  395,  G6  X.  W.  73,  holding  concealment  of  cause  of  injury  resulting 
in  death  not  prevent  running  of  statute  against  right  to  maintain  action ; 
Daugherty  v.  Daugherty,  116  Iowa,  248,  90  X.  YV.  65,  holding  running  of  limita- 
tions against  action  for  proceeds  of  land  by  beneficiary  of  trust  arising  from, 
fraudulently  procured  conveyance,  not  suspended  till  discovery  of  fraud;  Mc- 
kay  v.  McCarthy,  146  Iowa,  551,  34  L.R.A.  (X.S.)  914,  123  X.  W.  755,  holding 
that  statute  of  limitations  runs  against  action  for  damages  for  false  represen- 
tations inducing  sale  of  stock  from  time  of  consummation  of  transaction  and  not. 
from  time  of  discovery  of  fraud. 
Exceptions  to  operation  of  statute. 

Cited  in  Hawley  v.  Griffin,  121  Iowa,  699,  97  X.  W.  86,  holding  proceeding  by 
heirs  of  insane  person  to  vacate  decree  quieting  title  of  grantee  in  tax  deed 
governed  by  limitations  contained  in  statute  authorizing  it. 

Disapproved  in  Murray  v.  Chicago  &  X.  W.  R,  Co.  35  C.  C.  A.  65,  92  Fed.  871K 
Affirming  62  Fed.  44,  holding  concealment  of  cause  of  action  for  unreasonable- 
charge  for  freight,  not  within  exception  to  statute  of  limitation  providing  relief 
in  cases  of  fraud,  and  common  law  cannot  make  exception. 

6  L.  R.  A.  802,  CHESTER  v.  BLACK,  132  Pa,  568,  19  Atl.  276. 

Followed  without  special  discussion  in  Harrisburg  v.  Adams,  2  Dauphin  Co.. 
Rep.  388,  5  Pa.  Dist.  R,  379;  Chester  v.  Cunliffe,  7  Del.  Co.  Rep.  99;  Dunbar  v. 
Williamsport,  9  Pa.  Co.  Ct.  452. 

Validity   of   retroactive   legislation   as   to   taxes,   assessments,    duties   and 
the  like. 

Cited  in  Donley  v.  Pittsburgh,  147  Pa.  351,  29  W.  N.  C.  363,  30  Am.  St.  Rep.. 
738,  23  Atl.  394,  holding  that  legislature  may  provide  for  assessments  for 
street  improvements  made  under  void  act;  Shuttuck  v.  Smith,  6  N.  D.  80,  69- 
N.  W.  5,  holding  that  legislature  may  validate  defective  tax  levy;  Philadelphia 
v.  Armstrong,  16  Pa.  Super.  Ct.  58,  raising  without  deciding  question  whether 
act  permitting  filing  of  municipal  liens  within  six  months  after  assessment  oper- 
ates retroactively;  Philadelphia  v.  Hey,  20  Pa.  Super.  Ct.  482,  holding  that 
legislature  may  revive  municipal  liens  for  street  improvements  theretofore  ex- 
pired; State  ex  rel.  Lownsberry  v.  District  Ct.  102  Minn.  490,  113  X.  W.  697, 
holding  irregularities  and  defects  in  contract  made  basis  of  judgment  declaring- 
it  void  cured  and  obliterated  by  city  charter  authorizing  reassessment  for 
improvement  contracted  for  by  city;  Philadelphia  v.  Athow,  10  Pa.  Dist.  R. 
188,  sustaining  statute  making  municipal  claims  for  costs  of  municipal  im- 
provements filed  before  its  passage  liens  iintil  fully  paid  and  satisfied:  Howell 
v.  Morrisville,  212  Pa.  353,  61  Atl.  932,  on  power  of  legislature  to  ratify  subse- 
quently what  it  could  have  authorized  originally;  Anderson  v.  Lower  Merion 
Twp.  217  Pa.  384,  66  Atl.  1115,  holding  legislature  might  authorize  collection  of 
cost  of  sewer  from  property  benefited  thereby,  where  township  had  paid  for  it; 
Xorthampton  Borough  v.  Swartz.  12  Xorth.  Co.  Rep.  338,  20  Pa.  Dist.  R.  165, 
holding  that  legislature  may  validate  assessment  for  local  improvements  by 
statute;  Allegheny  v.  Stewart.  43  Pa.  Super.  Ct.  539,  holding  that  abutting  lots 
benefited  by  street  improvements  made  under  void  authority  may  be  charged 
with  assessment  by  subsequent  legislation ;  United  States  v.  Heinszen,  206  U. 
S.  388,  51  L.  ed.  1104,  27  Sup.  Ct.  Rep.  742,  11  A.  &  E.  Ann.  Cas.  688,  holding 
Congress  has  power  to  ratify  illogal  exaction  of  duties  in  Philippine  Islands, 
though  action  pending  at  date  of  ratifying  statute  to  recover  duties  paid. 
Constitutional  provision  for  uniformity  of  taxation. 

Cited  in  Harrisburg  v.  McPherran,  4  Dauphin  Co.  Rep.  64,.  Affirmed  in  14  Pa. 
L.R.A.  Au.  Vol.  I.— 76. 


0  L.R.A.  802]  L.  R.  A.  CASES  AS  AUTHORITIES.  1202 

Super.  Ct.  483;  Beaumont  v.  Wilkes-Barre,  6  Kulp,  126;  Harrisburg  v.  Miller, 
2  Dauphin  Co.  Rep.  225, —  holding  front-foot  assessments,  constitutional ;  Meggett 
v.  Eau  Claire,  81  Wis.  330,  51  N.  W.  566,  holding  absence  of  benefits  no  defense 
to  front-foot  assessment  for  local  improvement;  Alfalfa  Irrig.  Dist.  v.  Collins, 
46  Xeb.  425,  64  N.  W.  1086,  holding  act  providing  for  local  assessments  for 
irrigation  system,  constitutional. 

Cited  in  note  (12  L.  R.  A.  852)  on  exemption  of  church  property  from  special 
assessment  under  exemption  from  taxes  generally. 

6  L.  R.  A.  804,  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  v.  BIGGS,  52  Ark.  240,  20  Am.  St. 

Rep.  174,  12  S.  W.  331. 
Limitation  of  actions. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Yarborough,  56  Ark.  616,  20  S.  W.  515, 
holding  that  limitation  runs  from  time  of  overflow,  and  not  from  making  em- 
bankment, where  probability  of  such  damage  uncertain  at  earlier  date;  Val- 
paraiso City  W.  Co.  v.  Dickover,  17  Ind.  App.  241,  46  N.  E.  591,  holding  that 
limitation  upon  action  for  diversion  of  water  during  dry  seasons  runs  from 
time  of  injury;  Augusta  v.  Lombard,  101  Ga.  728,  28  S.  E.  994,  holding  that 
limitation  upon  action  for  injuries  from  removal  of  gate  to  mill  race  in  certain 
times  of  high  water,  runs  from  overflow;  Fremont,  E.  &  M.  Valley  R.  Co.  v. 
Harlin,  50  Neb.  711,  36  L.  R.  A.  422,  61  Am.  St.  Rep.  578,  70  N.  W.  263,  hold- 
ing that  limitation  of  action  for  overflow  from  railway  ditches  does  not  run 
from  time  of  construction;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Anderson,  62  Ark. 
363,  35  S.  W.  791.  holding  that  limitation  upon  action  for  obstruction  of  ditch 
by  railway  embankment  runs  from  time  of  construction;  Cockrill  v.  Cooper, 
29  C.  C.  A.  332,  57  U.  S.  App.  576,  86  Fed.  10,  holding  one-year  statute  not 
applicable  in  Arkansas  to  actions  against  bank  directors  for  excessive  loans  or 
for  misfeasance  or  nonfeasance;  Emrich  v.  Little  Rock  Traction  &  Electric  Co. 
71  Ark.  75,  70  S.  W.  1035,  holding  husband's  action  for  damages  resulting  from 
injury  to  wife  governed  by  limitation  applicable  to  "actions  on  case  founded  on 
any  contract  or  liability;"  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Stephens,  72  Ark.  129, 
78  S.  W.  766,  holding  statute  of  limitations  did  not  begin  to  run  against  right 
of  action  for  injury  to  growing  crops  by  obstruction  of  drainage  by  railroad 
until  injury  happened,  where  it  was  uncertain  at  time  of  construction  whether 
it  was  necessarily  injurious;  St.  Louis  S.  W.  R.  Co.  v.  Morris,  76  Ark.  545,  89 
S.  W.  846,  holding  limitations  begin  to  run  against  action  for  damage  to  crops 
caused  by  ditch  from  time  injury  was  done,  where  ditch  was  of  uncertain  dur- 
ation, and  injurious  effects  thereof  depended  upon  rains,  seasons  and  floods; 
Chicago,  R.  I.  &  P.  R.  Co.  v.  McCutchen,  80  Ark.  237,  96  S.  W.  1054,  holding 
right  of  action  for  damage  caused  by  raising  railroad  embankment  so  close  to 
ditch  that  dirt  from  embankment  fell  into  it,  not  barred  by  statute  of  limi- 
tations or  by  judgment  in  former  action;  Turner  v.  Overton,  86  Ark.  408,  20 
L.R.A.(N.S.)  897,  111  S.  W.  270,  holding  action  for  permanent  injury  to  land 
barred  by  statute  where  not  brought  within  period  of  limitation  after  construc- 
tion of  ditch  causing  injury;  St.  Francis  Levee  Dist.  v.  Barton,  92  Ark.  409,  25 
L.R.A.  (X.S.)  647,  123  S.  W.  382,  holding  compensation  for  permanent  injury  to 
land  by  construction  of  embankment  interfering  with  drainage  must  be  sought 
in  one  action  and  statute  begins  to  run  from  time  drainage  is  obstructed:  Kelly 
v.  Kansas  City  Southern  R.  Co.  92  Ark.  470,  123  S.  W.  664,  to  same  effect;  St. 
Louis,  I.  &  M.  S.  R.  Co.  v.  Waldrop,  93  Ark,  52,  123  S.  W.  786,  holding  that 
action  for  damages  for  obstruction  of  stream  by  embankment  where  obstruction 
is  permanent  must  be  brought  within  three  years  from  time  embankment  is 
completed;  Virginia  Hot  Springs  Co.  v.  McCray,  106  Va.  464,  10  L.R.A.  (.\>. 


1203  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  805 

467,  56  S.  E.  216,  10  A.  &  E.  Ann.  Cas.  179,  approving  rule  that  limitations  be- 
gins to  run  from  time  of  construction  of  permanent  structure  producing  im- 
mediate injury  to  land;  Pickens  v.  Coal  River  Boom  Co.  66  W.  Va.  16,  24 
L.R.A.  (X.S.  )  358.  65  S.  E.  865,  holding  that  action  for  damages  caused  to  owner 
of  mill  by  operation  of  boom  may  be  recovered  from  time  to  time  as  damage 
occurs,  and  statute  runs  only  from  time  each  loss  occurs;  Hill  v.  Empire  State- 
Idaho  Min.  &  Developing  Co.  158  Fed.  883,  holding  where  damage  complained  of 
was  due  to  discharge  of  tailings  and  waste  material  into  stream  from  ore  re- 
duction works,  right  of  action  did  not  accrue  until  actual  injury  of  land. 

Cited  in  footnote  to  Church  of  Holy  Communion  v.  Paterson  Extension  R.  Co. 
55  L.  R.  A.  81,  which  holds  limitation  begins  to  run  for  injuries  to  church  wall 
from  insufficiency  of  retaining  wall  built  in  constructing  track  from  time 
injury  occurs. 

Cited  in  notes  (126  Am.  St.  Rep.  953)  on  operation  of  statute  of  limitations 
where  cause  of  action  for  nominal  damages  subsequently  ripens  into  right  to 
actual  damages;  (16  Eng.  Rul.  Cas.  231)  as  to  when  limitations  begin  to  run 
where  wrongful  act  and  damage  are  not  instantaneous. 

Distinguished  in  Middlekamp  v.  Bessemer  Irrigating  Co.  46  Colo.  121,  23 
L.R.A.  (X.S.)  803,  103  Pac.  280,  holding  injury  done  to  land  by  irrigation  canal 
Avhence  seepage  occurs  is  permanent,  and  state  begins  to  run  from  time  lands 
are  first  visibly  afYected  and  injured. 


Cited  in  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v.  Cook,  57  Ark.  396,  21  S.  W.  1066, 
holding  loss  in  rental  value,  measure  of  damages  from  insufficient  outlet  in 
roadbed;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Kline,  29  Ind.  App.  394,  63  X.  E. 
483,  holding  prospective  damages  not  recoverable  in  action  for  obstruction  of 
water  course  by  railroad  embankment;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Davis,  26 
Okla.  438,  109  Pac.  214,  holding  that  land  owner  may  recover  for  permanent 
injury  to  land  caused  by  roadbed  and  ditches  of  railroad  diverting  surface  water 
and  recovery  of  such  damages  results  in  consent  that  such  ditches  may  be  main- 
tained. 

Cited  in  notes  (25  Am.  St.  Rep.  672)  on  liability  of  railroad  for  damages  from 
embankment  throwing  water  on  adjoining  land;  (118  Am.  St.  Rep.  877)  on 
continuance  of  nuisance  as  new  nuisance;  (128  Am.  St.  Rep.  960,  966)  as  to 
when  nuisance  will  support  only  one  recovery  and  when  it  may  support  several. 
Permanent  or  continuing'  injury  to  land. 

Cited  in  Hughes  v.  Chicago,  B.  &  Q.  R.  Co.  141  Iowa,  277.  133  Am.  St.  Rep. 
164,  llfl  X.  \V.  !>24.  holding  structure  may  be  permanent  without  resulting 
injury  being  original  and  permanent. 

6   L.  R.   A.   805,   r'AYERNVKATHKR  v.   PHEXIX   IXS.  CO.   118   X.  Y.  324,  28 

X.  Y.  S.  R.  689,  23  X.  E.  192. 
Effect   of  agreement   giving;  carrier  benefit   of   insurance. 

Cited  in  Xorth  British  &  Mercantile  Ins.  Co.  v.  Central  Vermont  R,  Co.  9 
App.  Div.  8,  40  X.  Y.  Supp.  1113,  holding  that  where  carrier  has  benefit  of 
insurance  no  cause  of  action  accrues  to  insurer  by  subrogation  ;  Dundee  Chemical 
Works  v.  Xew  York  Mut.  Ins.  Co.  12  Mi>c.  35.-).  33  X.  Y.  Supp.  628,  holding 
that  acceptance  of  bill  of  lading  giving  carrier  benefit  of  insurance  and  destroying 
insurer's  right  of  subrogation  invalidates  policy:  Bradley  v.  Lehigh  Valley  R.  Co. 
145  Fed.  573.  holding  insurer  making  advances  to  insured  may  recover  from 
carrier  for  goods  lost  though  bill  of  lading  provides  carrier  shall  have  benefit  of 
insurance  obtained  by  shipper. 


6  L.R.A.  805]  L.  R.  A.  CASES  AS  AUTHORITIES.  1204 

Cited  in  note    (29  L.R.A.  (N.S.)    703)    as  to  effect  of  discharge  of  person  pri- 
marily liable  for  loss,  or  of  contractual  provision  giving  him  benefit  of  insur- 
ance, upon  insured's  right  of  action  against  insurer. 
Subrogation    of    insurer   to    rights    of    insured. 

Cited  in  Munson  v.  New  York  C.  &  H.  R.  R.  Co.  32  Misc.  286,  65  X.  Y.  Supp, 
848,  holding  insurer  subrogated  to  rights  of  insured  against  one  causing  loss; 
London  &  L.  F.  Ins.  Co.  v.  Rome,  W.  &  O.  R.  Co.  68  Hun,  600,  23  N.  Y.  Supp. 
231,  holding  insurer  paying  loss  on  goods  in  common  carrier's  charge  subrogated 
to  rights  of  insured;  Kennedy  Bros.  v.  Iowa  State  Ins.  Co.  119  Iowa,  33,  91' 
.<!.  W.  831,  holding  that  one  releasing  railroad  from  liability  for  negligently 
,'ausing  fire,  without  knowledge  of  insurer  entitled  to  subrogation,  cannot  re- 
lover  insurance;  Lyons  v.  Boston  &  L.  R.  Co.  181  Mass.  557,  64  X.  E.  404  (dis- 
senting opinion),  majority  holding  statute  giving  railroad  liable  for  causing 
fire,  benefit  of  insurance  on  property  not  impair  obligation  of  policies  previously 
issued  providing  for  insurer's  subrogation  to  insured's  rights;  Hanna  v.  People'* 
Xat.  Bank.  76  App.  Div.  231,  78  N.  Y.  Supp.  516  (dissenting  opinion),  on  sub- 
rogation of  insurance  company  paying  loss  to  rights  of  insured. 

Cited  in  notes   (23  Am.  St.  Rep.  159;  44  Am.  St.  Rep.  735)   on 'subrogation  of 
insurer. 
Action  on  insurance  policy Pleading  and  proof. 

Cited  in  Long  Creek  Bldg.  Asso.  v.  State  Ins.  Co.  29  Or.  573,  46  Pac.  366, 
holding  that  performance  or  waiver  of  condition  precedent  to  recovery  on  insur- 
ance policy  must  be  pleaded  and  proved. 

6  L.  R,  A.  807,  TWENTY-THIRD  STREET  BAPTIST  CHURCH  v.  CORXWELL, 

117  N".  Y.  601,  28  X.  Y.  S.  R.  48,  23  X.  E.  177. 
Voluntary   contract. 

Cited  in  Myers  v.  Dean,  11  Misc.  370.  32  X.  Y.  Supp.  237,  holding  no  action 
lies  on  promise  to  pay  brokerage  made  after  services  performed ;  Re  James,  78. 
Hun,  125,  28  X.  Y.  Supp.  992,  holding  bond  by  husband  to  wife  unenforceable 
against  estate  when  without  actual  consideration;  Rogers  v.  Galloway  Female 
College,  64  Ark.  637,  39  L.  R.  A.  641,  44  S.  W.  454,  holding  organizer  of,  and 
subscriber  to,  fund  to  found  college,  bound  after  acceptance  of  subscription  and 
location  of  college;  Davis  v.  Bronson,  2  N.  D.  309,  16  L.  R.  A.  659,  33  Am.  St. 
Rep.  783,  50  X.  W.  836,  holding  that  party  performing  executory  contract  after 
repudiation  by  other  party,  cannot  recover  contract  price;  Bundrant  v.  Boyce,  47 
Ind.  App.  2GO,  92  X.  E.  126  (dissenting  opinion),  on  effect  of  death  of  promisee 
on  promise  to  donate  money  to  church ;  People's  Bank  &  T.  Co.  v.  Weidinger,  73 
X.  J.  L.  439,  64  Atl.  179,  holding  promise  of  father  of  illegitimate  children  ta 
provide  in  his  will  for  receipt  of  money  by  mother  for  support  of  herself  and 
children  during  life  revoked  by  his  death;  Sager  v.  Gommermann,  50  Misc.  508, 
100  X.  Y.  Supp.  406,  holding  subscriber  to  agreement  to  build  butter  factory  after 
subscribers  representing  certain  number  of  cows  had  been  obtained  not  liable  un- 
der such  agreement  where  he  requested  that  his  name  be  taken  from  list  before 
required  subscribers  had  been  obtained. 

Cited  in  notes  (22  L.R.A.  80)  on  whether  subscription  contract  joint  or  several; 
(11  Eng.  Rul.  Cas.  233)  on  parol  evidence  as  to  expenditure  on  faith  of  volun- 
tary subscription. 

6  L.  R.  A.  808,  BARRY  v.  CAPEX,  151  Mass.  99,  23  N.  E.  735. 
Effect    on    contract   of   illegal    performance. 

Cited  in  Fox  v.  Rogers,  171  Mass.  547,  50  X.  E.  1041,  holding  recovery  on  con- 


1205  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  809 

tract  to  lay  drain  not  barred  by  illegal  construction;  Dunham  v.  Hastings  Pave- 
ment Co.  56  App.  Div.  250,  67  N.  Y.  Supp.  632,  holding  contract,  to  endeavor  to 
secure  right  to  make  bids  for  laying  certain  paving  material,  not  rendered  illegal 
by  illegal  acts  in  performance;  Knut  v.  Xutt,  83  Miss.  374,  35  So.  686,  holding 
attorney  entitled  to  agreed  compensation  for  prosecuting  claim  against  govern- 
ment, though  procuring  settlement  by  use  of  influence;  Dunham  v.  Hastings 
Pavement  Co.  57  App.  Div.  429,  68  N.  Y.  Supp.  221,  holding  whether  contracting 
parties  contemplated  performance  of  illegal  acts,  question  for  jury;  Cole  v. 
Brown-Hurley  Hardware  Co.  139  Iowa,  494,  18  L.R.A.(X.S-)  1165,  117  N.  W.  746, 
16  A.  &  E.  Ann.  Cas.  846,  holding  landlord  bound  by  promise  in  lease  to  secure 
trackage  in  alley  in  rear  of  leased  premises,  though  trackage  could  not  be  secured 
without  obtaining  permission  of  city  council;  Kerr  v.  American  Pneumatic  Service 
Co.  188  Mass.  29,  73  N.  E.  857,  holding  contract  contemplating  only  legitimate 
services  not  illegal  because  agent  employed  under  it  might  misconduct  himself  and 
use  corrupt  methods  in  dealing  with  public  agencies. 

Cited  in  footnote  to  Crichfield  v.  Bermudez  Asphalt  Paving  Co.  42  L.  R.  A.  347, 
which  holds  void,  employment  to  promote  business  of  paving  company  including 
procuring  of  passage  of  ordinance  for  paving  streets  and  alleys  with  commissions 
contingent  on  success. 

Cited  in  note   (12  L.  R.  A.  120)   as  to  contracts  not  binding  on  makers. 

6  L.  R.  A.  809,  PULLMAN  PALACE  CAR  CO.  v.  LOWE,  28  Neb.  239,  26  Am.  St. 

Rep.  325,  44  N.  W.  226. 
Innkeeper's    liability. 

Cited  in  Taylor  v.  Downey,  104  Mich.  536,  29  L.  R.  A.  97,  53  Am.  St.  Rep. 
472,  62  X.  W.  716,  holding  hotel  keeper  not  liable  for  boarder's  money  taken  by 
night  clerk  from  drawer  in  safe  to  which  boarder  carried  key;  Clancy  v.  Barker, 
71  Xeb.  87,  G9  L.R.A.  647,  115  Am.  St.  Rep.  559,  98  N.  W.  440,  8  A.  &  E.  Ann.  Cas. 
682,  holding  hotel  keeper  liable  on  ground  of  breach  of  contract  for  injury  to 
child  of  guest  by  hotel  servant  who  pointed  loaded  revolver  at  child,  which  was 
injured  by  its  discharge  through  some  means;  Holstein  v.  Phillips,  146  N.  C.  374. 
14  L.R.A.  (X.S)  478,  59  S  E.  1037,  14  A.  &  E.  Ann.  Cas.  323,  holding  propri- 
etors of  summer  resort  liable  to  guest  for  valuables  stolen  from  trunk  during 
guest's  absence  from  room. 

Cited  in  footnote  to  Fay  v.  Pacific  Improvement  Co.  16  L.  R.  A.  188,  which 
holds  character  of  guest  at  hotel  not  lost  by  merely  inquiring  as  to  price  of 
room  and  board,  without  any  agreement  as  to  length  of  stay. 

Cited  in  notes  (12  L.  R.  A.  383)  as  to  who  is  a  guest;   (8  L.  R.  A.  98;  12  L.  R. 
A.  382)  liability  of  innkeeper  as  bailee;   (21  L.  R,  A.  291)  on  liability  of  sleeping 
car  company  as  innkeeper. 
Carrier's  liability. 

Cited  in  Voss  v.  Wagner  Palace  Car  Co.  16  Ind.  App.  298,  43  X.  E.  20  (dis- 
senting opinion)  majority  holding  company  liable  for  loss  of  passenger's  cape 
through  dishonesty  of  porter. 

Cited  in  notes  (6  L.R.A.  620J  on  delivery  to  agent  or  servant  of  carrier  is 
delivery  to  carrier;  (130  Am.  St.  Rep.  33)  on  liability  of  railroad  company  for 
injuries  or  losses  due  to  operation  of  cars  not  owned  by  it;  (!)  L.R.A. (X.S.)  409) 
on  duty  of  sleeping  car  company  as  to  baggage  or  personal  effects. 

Disapproved  in  Williams  v.  Webb,  27  Misc.  510,  58  X.  Y.  Supp.  300,  holding 
sleeping  car  company  not  insurer  of  passenger's  baggage,  money,  or  effects; 
Voss  v.  Wagner  Palace  Car  Co.  16  Ind.  App.  279,  43  X.  E.  20,  holding  sleeping 
car  company  liable  as  common  carrier  for  safe  delivery  of  baggage  intrusted  to 
porter  who  undertook  to  deliver. 


6  L.R.A.  813]  L.  R.  A.  CASES  AS  AUTHORITIES.  1206 

6  L.  R.  A.  813,  MILLER  v.  FINEGAX,  26  Fla.  29,  7  So.  140. 
Homestead  exemption. 

Cited  in  Godwin  v.  King,  31  Fla.  530,  13  So.  108,  holding  that  dower  right  in 
homestead  exemption  not  taken  away  by  provision  that  such  exemption  shall 
inure  to  widow  and  heirs  of  party  entitled  thereto;  Scull  v.  Beatty,  27  Fla.  435, 
9  So.  4,  holding  constitutional  provisions  for  accrual  of  exemptions  to  heirs  not 
limited  to  resident  heirs. 

Cited  in  footnotes  to  Campbell  v.  Jones,  6  L.  R.  A.  783,  which  holds  land 
larger  in  area  than  law  allows,  received  in  exchange  for  homestead,  liable  as  to 
excess,  to  existing  debts;  Wilkinson  v.  Merrill,  11  L.  R.  A.  032,  which  holds 
householder  not  deprived  of  homestead  right  by  death  of  entire  family;  Bosquett 
v.  Hall,  9  L.  R.  A.  351,  which  refuses  homestead  exemption  because  of  residence 
of  children  strangers  in  blood;  Purnell  \.  Reed,  21  L.  R.  A.  839,  holding  that 
husband  can  dispose  of  homestead  by  will,  subject  to  widow's  dower,  where  with- 
out children. 

Cited  in  notes    (11  L.  R.  A.  705,  9  L.  R.  A.  804)   as  to  homestead  rights. 
Family   defined. 

Cited  in  Adams  v.  Clark,  48  Fla.  211,  37  So.  734,  holding  husband  and  wife 
constitute  family;  also  that  grauddaughter  adopted  at  age  of  one  month  was 
member  of  family  in  good  faith. 

Cited  in  footnote  to  Cross  v.  Benson,  64  L.R.A.  560,  which  holds  wife  the 
family  of  the  owner  within  meaning  of  the  homestead  laws,  where  husband  and 
wife  occupy  land  belonging  to  him  as  a  homestead. 

Cited  in  notes  (7  L.  R.  A.  747)  as  to  definition  of  family;  (8  L.  R.  A.  746) 
as  to  construction  of  wills;  (4  L.R.A.  (X.S.)  391)  on  what  constitutes  a  "family" 
under  homestead  and  exemption  laws. 

6  L.  R.  A.  821,  WILLIAMS  v.  STATE,  25  Fla.  734,  6  So.  831. 

6  L.  R.  A.  823,  GATO  v.  EL  MODELO  CIGAR  MFG.  CO.  25  Fla.  886,  23  Am. 

St.  Rep.  537,  7  So.  23. 
General  demurrer. 

Cited  in  Brown  v.  Florida  Chautauqua  Asso.  59  Fla.  454,  52  So.  802,  holding 
that  general   demurrer  should  be  overruled  where   there   is   equity  stated,   even 
though  allegations  are  not  full  and  complete. 
Trademarks. 

Cited  in  Gaines  v.  E.  Whyte  Grocery,  Fruit  &  Wine  Co.  107  Mo.  App.  526,  81 
S.  W.  648,  holding  right  of  proprietor  of  whisky  trademark  to  injunctive  relief 
against  use  of  it  on  whisky  other  than  that  produced  by  such  proprietor,  not 
lost  by  laches  where  wrongful  use  of  trademark  was  not  discovered  by  proprietor 
until  shortly  before  suit;  Bluthenthal  v.  Mohlmann,  49  Fla.  279,  38  So.  709. 
holding  bill  for  injunction  and  accounting  not  demurrable  for  want  of  equity, 
where  it  showed  use  by  defendant  of  brand  so  far  resembling  plaintiff's  as  to 
enable  defendant  to  sell  his  brand  of  whisky  as  plaintiff's. 

Cited  in  footnotes  to  McVey  v.  Brendel,  13  L.  R.  A.  377,  which  holds  equity 
\yill  not  protect  labor  union  in  use  of  nontrademark  label;  Koehler  v.  Sanders. 
9  L.  R.  A.  576,  which  denies  right  to  appropriate  word  ''international"  as  trade- 
mark. 

Cited  in  notes  (9  L.  R.  A.  145,  146,  149)  as  to  trademarks  and  rights  thereto; 
(10  L.  R.  A.  833)  as  to  trademark  and  tradename;  (17  L.  R.  A.  130)  concerning 
labels  as  trademarks;  (19  L.R.A.  56)  as  to  invalidity  of  deceptive  trademarks; 
(85  Am.  St.  Rep.  105)  on  what  words  or  phrases  may  constitute  a  valid  trade- 


1207  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  829 

marTc:    (45  L.  eel.  U.  S.  60,  61,  68,  69)  on  laches  or  abandonment  of  trademark  as 

defense. 

Proprietor's   name. 

Cited  in  Robinson  v.  Storm,  103  Tenn.  54,  52  S.  W.  880,  holding  that  proprietor 
cannot  so  use  his  name  in  business  as  to  defraud  another. 

Cited  in  footnotes  to  American  Order  of  S.  C.  v.  Merrill,  8  L.  R.  A.  320,  which 
refuses  to  enjoin  organization  of  corporation  with  name  similar  to  existing  one; 
L-.imb  Knit-Goods  Co.  v.  Lamb  Glove  &  Mitten  Co.  44  L.  R.  A.  841,  which  denies 
right  to  use  own  name  so  as  to  deceive  public  as  to  business  rightfully  engaged 
in  by  another;  Symonds  v.  Jones,  8  L.  R.  A.  570,  which  holds  transferrer  of 
trademark  though  containing  his  name  or  initials  cannot  use  same. 

Cited  in  notes  (1  L.R.A.(X.S.)  662;  52  L.  ed.  U.  S.  482)  on  limitation  of  right 
to  use  one's  own  name  as  tradename. 
—  Geographical    name. 

Cited  in  Pillsbury-Washburn  Flour  Mills  Co.  v.  Eagle,  41  L.  R.  A.  167,  foot- 
note p.  162,  30  C.  C.  A.  397,  58  U.  S.  App.  490,  86  Fed.  619,  which  authorizes 
injunction  against  use  of  geographical  name  on  flour  made  elsewhere  from  wheat 
of  different  grade. 

Cited  in  footnotes  to  American  Waltham  Watch  Co.  v.  United  States  Watch 
Co.  43  L.  R.  A.  826,  which  authorizes  injunction  against  deceptive  use  of  word 
"Waltham"  by  other  manufacturer  of  watches  at  same  place;  Levy  v.  Waitt. 
25  L.  R.  A.  190,  which  refuses  to  enjoin,  as  infringement,  uninterrupted  and  inno- 
cent use  without  question  of  local  geographical  name  for  five  years. 

Cited  in  note  (45  L.  ed.  U.  S.  372)   on  trademark  in  geographical  name. 

Distinguished  in  Elgin  Butter  Co.  v.  Elgin  Creamery  Co.   155  111.   137,  40  X. 
E.   616,   holding  Elgin   Creamery   Co.   entitled  to  use   its  name  as   against   pre- 
existing Elgin  Butter  Co.  also  of  Elgin,  in  absence  of  fraud. 
Dnmagres. 

Cited  in  Hennessy  v.  Wilmerding-Loewe  Co.  103  Fed.  94,  holding  wilful  in 
fringer  of  trademark  liable  for  injury  to  business;  C.  F.  Simmons  Medicine  Co. 
v.  Mansfield  Drug  Co.  93  Tenn.  146,  23  S.  W.  165,  holding  ordering  accounting 
customary  in  assessment  of  damages  in  trademark  infringement  cases;  Regis  v. 
Jaynes.  ]91  Mass.  247,  77  X.  -E.  774,  holding  party  using  infringing  trademark- 
chargeable  with  profits  made  upon  all  sales  under  guise  of  infringing  trademark, 
in  taking  account  of  profits. 

Distinguished  in  Gregory  v.  Spieker,  110  Cal.  155,  52  Am.  St.  Rep.  70,  42  Pac. 
576,  holding  business  lost  to  buyer,  not  profits  of  seller  measure  for  breach  of 
contract  of  sale  of  proprietary  compound. 

6  L.  R.  A.  829,  FOOT  v.  CARD,  58  Conn.  1,  18  Am.  St.  Rep.  258,  18  Atl.  1027. 
Alieiintiiigr    husband's    affection. 

Cited  in  Lockwood  v.  Lockwood,  67  Minn.  482,  70  N.  W.  784;  Williams  v. 
Williams,  20  Colo.  56,  37  Pac.  614;  Humphrey  v.  Pope,  122  Cal.  258.  54  Pac.  847, 
holding  that  wife  has  action  at  common  law  for  damages  against  woman  enticing 
away  husband;  Knapp  v.  Wing,  72  Vt.  338,  47  Atl.  1075,  holding  that  woman  has 
action  for  alienation  of  husband's  affections  resulting  in  loss  of  conjugal  society, 
and  support;  Price  v.  Price,  91  Iowa,  697,  29  L.  R.  A.  151,  51  Am.  St.  Rep.  360, 
tin  X.  W.  -202:  Haynes  v.  Xowlin,  129  Ind.  583,  14  L.  R.  A.  790,  28  Am.  St.  Rep. 
213,  29  X.  E.  389;  Beach  v.  Brown,  20  Wash.  268,  43  L.  R.  A.  116,  72  Am.  St. 
Rep.  96,  55  Pac.  46;  Deitzman  v.  Mullin  R.  Co.  108  Ky.  614,  50  L.  R.  A.  810, 
footnote  p.  808,  94  Am.  St.  Rep.  300,  57  S.  W.  247,  holding  that  wife  may  main- 
tain action  for  enticing  husband  away  and  alienating  affections  where  disability 


6  L.R.A.  829]  L.  R.  A.  CASES  AS  AUTHORITIES.  1208 

to  sue  removed;  Warren  v.  Warren,  89  Mich.  128,  14  L.  R.  A.  547,  footnote  p. 
545,  50  iSI.  W.  842;  Clow  v.  Chapman,  125  Mo.  104,  26  L.  R.  A.  413,  footnote  p. 
412,  46  Am.  St.  Rep.  468,  28  S.  W.  328 — upholding  wife's  right  of  action  for 
alienating  husband's  affections  and  depriving  her  of  his  society  where  she  has 
right  to  own  separate  property,  including  actions  for  violation  of  personal  rights; 
Oernerd  v.  Gernerd,  185  Pa.  236,  40  L.  R.  A.  550,  42  W.  N.  C.  51,  64  Am.  St. 
Rep.  646,  39  Atl.  884,  and  Wolf  v.  Frank,  92  Md.  141,  52  L.  R.  A.  104,  footnote 
p.  102,  48  Atl.  132,  holding  that  married  woman  may  sue  for  enticing  husband 
away  where  statute  removes  disability  to  sue  for  tort;  Postlewaite  v.  Postle- 
waite,  1  Ind.  App.  478,  28  N.  E.  99,  holding  that 'divorced  woman  has  action  for 
alienating  affections  of  former  husband;  Daley  v.  Gates,  65  Vt.  593,  27  Atl.  193, 
holding  original  allegation  of  enticing  husband  away  per  quod  consortium  amisit, 
and  new  count  charging  criminal  conversation  with  same  per  quod,  set  up  same 
«ause  of  action;  Hart  v.  Knapp,  76  Conn.  138,  100  Am.  St.  Rep.  989,  55  Atl.  1021, 
"holding  recovery  in  damages  may  be  had  by  wife  against  woman  alienating 
husband's  affections;  Xoxon  v.  Remington,  78  Conn.  297,  61  Atl.  963,  sustaining 
recovery  by  wife  of  seventy-five  against  woman  of  sixty-four  for  alienation  of 
affections  of  husband  of  seventy-four;  Marri  v.  Stanford  Street  R.  Co.  84  Conn. 
16,  33  L.R.A.(N.S.)  1050,  78  Atl.  582,  Ann.  Cas.  1912B,  1120,  to  the  point  that 
liusband  may  maintain  action  for  alienation  of  wife's  affections  and  that  ground 
of  such  action  is  loss  of  consortium;  Gregg  v.  Gregg,  37  Ind.  App.  217,  75  X.  E. 
674,  holding  wife  has  remedy  like  to  that  of  husband  for  substantial  injury 
suffered  by  alienation  of  spouse's  affections;  Xolin  v.  Pearson,  191  Mass.  290, 
4  L.R.A.(N.S.)  649,  114  Am.  St.  Rep.  605,  77  N.  E.  890,  6  A.  &  E.  Ann.  Cas.  658, 
sustaining  right  of  wife  to  maintain  action  for  criminal  conversation  with  hus- 
T>and  and  causing  him  to  refuse  performance  of  marital  relations  and  abandon 
home  and  wife;  Quick  v.  Church,  23  Ont.  Rep.  272,  holding  wife  may  maintain 
action  for  alienation  of  husband's  affections;  Hodge  v.  Wetzler,  69  N.  J.  L.  492, 
55  Atl.  49,  on  existence  of  right  of  action  by  wife  at  common-law  for  alienation 
of  husband's  affections;  Sims  v.  Sims,  79  N.  J.  L.  580,  29  L.R.A.  (X.S.)  845, 
76  Atl.  1063,  holding  that  under  act  of  1906  chapter  248,  wife  may  sue  in  her  own 
name  for  alienation  of  husband's  affections. 

Cited  in  footnotes  to  Betser  v.  Betser,  52  L.  R.  A.  630,  which  sustains  wife's 
right  of  action  for  alienating  husband's  affections;  Tucker  v.  Tucker,  32  L.  R.  A. 
C23,  which  holds  parent  not  liable  for  advising  son  to  separate  from  wife;  Doe 
v.  Roe,  8  L.  R.  A.  833,  which  holds  action  for  alienating  husband's  affections  by 
debauching  and  carnally  knowing  him,  not  maintainable;  Houghton  v.  Rice, 
47  L.  R.  A.  310,  which  denies  right  of  action  against  woman  for  alienating  hus- 
band's affections  unaccompanied  by  adultery;  Sanborn  v.  Gale,  26  L.  R.  A.  864, 
which  holds  running  of  limitation  against  action  for  alienation  of  wife's  affec- 
tions not  prevented  by  agreement  of  parties  to  adultery  known  to  husband  to 
deny  same;  Hodgkinson  v.  Hodgkinson,  27  L.  R.  A.  120,  holding  that  wife  has 
an  action  for  damages  against  any  one  causing  abandonment  by  her  husband. 

Cited  in  notes  (10  L.  R.  A.  468)  as  to  liability  for  interrupting  marital  rela- 
tions; (11  L.R.A.  549)  as  to  actions  for  inducing  violation  of  obligations;  (28 
Am.  St.  Rep.  218;  46  Am.  St.  Rep.  473,  474,  477)  on  wife's  action  for  alienation 
of  husband's  affections. 

Disapproved  in  Duffies  v.  Duffies,  76  Wis.  380,  8  L.  R.  A.  423,  20  Am.  St.  Rep. 
79,  45  N.  W.  522,  holding  that  Avife  has  no  right  of  action  for  enticing  husband 
away,  thus  depriving  her  of  society  and  support;  Smith  v.  Smith,  98  Tenn.  105. 
60  Am.  St.  Rep.  838,  38  S.  W.  439,  holding  that  wife  cannot  prosecute  for  alien- 
ating husband's  affections  where  statute  authorizes  her  to  so  prosecute  for 
causes  arising  subsequent  to  desertion. 


1209  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  835 

Cruelty. 

cited  in  Mayhew  v.  Meyhew,  61  Conn.  235,  29  Am.  St.  Rep.  195,  23  Atl.  966r 
holding  that  husband  must  forbear  exercise  of  marital  rights  when  injurious  to 
wife's  health. 
Coexistence   of  -wrong:  and  remedy. 

Cited  in  New  Haven  v.  Fresenius,  75  Conn.  150,  52  Atl.  823,  holding  that  city 
may  maintain  action  at  law  against  treasurer  failing  to  deposit  funds  in  desig- 
nated bank;  Lonstorf  v.  Lonstorf,  118  Wis.  161,  95  N.  W.  961,  denying  wife's 
right  of  action  for  alienation  of  husband's  affections;  Mathewson  v.  Mathewson, 
79  Conn.  25,  5  L.R.A.(N.S.)  612,  63  Atl.  285,  6  A.  &  E.  Ann.  Cas.  1027,  holding 
when  law  creates  new  right  to  contract  mere  creation  thereof  includes  appropri- 
ate remedy  by  suit  for  its  violation. 
Cessante  ratione  legis  cessat  Ipsa  lex. 

Cited  in  Mathewson  v.  Mathewson,  79  Conn.  26,  5  L.R.A.(N.S.)  612,  63  Atl. 
285.  6  Ann.  Cas.  1027,  holding  consequent  effect  of  legislation  upon  civil  rights  of 
married  women,  within  reason  of  rule  that  law  ceases  to  operate  where  its 
reason  fails. 

6  L.  R.  A.  833,  BANK  OF  MENDOCINO  v.  BAKER,  82  Cal.  114,  22  Pac.  1037. 
Notice. 

Cited  in  Dennis  v.  Northern  P.  R.  Co.  20  Wash.  331,  55  Pac.  210,  holding  stat- 
ute granting  right  of  way  to  railroad,  notice  to  purchaser  from  one  holding  under 
deed  from  railway  omitting  reservation  of  right  by  mistake;  Tarke  v.  Bingham, 
123  Cal.  166,  55  Pac.  759,  holding  mortgagee  not  chargeable  with  knowledge  of 
scrivener's  error  in  copying  note  in  mortgage;  Svetinich  v.  Sheean,  124  Cal.  218, 
71  Am.  St.  Rep.  50,  56  Pac.  1028,  holding  party  notified  at  time  of  execution  sale 
of  half  interest  of  wife,  that  husband  claims  entire  interest,  purchaser  with 
notice;  Hyde  v.  Mangan,  88  Cal.  327,  26  Pac.  180,  holding  notorious  and  ex- 
clusive possession  under  land  contract  equivalent  to  express  notice  to  subsequent 
purchaser  from  vendor  out  of  possession;  Prouty  v.  Devin,  118  Cal.  260,  50  Pac. 
380,  holding  omission  to  pass  upon  question  of  constructive  notice  from  facts 
arousing  inquiry,  ground  for  reversing  judgment  determining  priority  of  mort- 
gages; Title  &  Document  Restoration  Co.  v.  Kerrigan,  150  Cal.  318,  8  L.R.A. 
(X.S.)  682,  119  Am.  St.  Rep.  199,  88  Pac.  356,  holding  rule  that  means  of 
knowledge  is  equivalent  to  knowledge  applies  wherever  circumstances  impose  upon 
party  duty  of  inquiry. 

Cited  in  notes    '8  L.R.A.  211)    on  constructive  notice  by  possession  of  land; 
(13  L.R.A.  (X.S.)   80;  104  Am.  St.  Rep.  344)  on  effect  of  possession  of  real  prop- 
erty as  notice. 
\Vhat   constitutes   title   by  adverse   possession. 

Cited  in  footnote  to  Swan  v.  Munch,  35  L.  R.  A.  743,  which  holds  title  by  pre- 
scription obtainable  by  wrongful  entry  under  claim  of  right. 

Cited  in  note   ( 10  L.  R.  A.  388 )   on  title  under  adverse  possession. 

6  L.  R.  A.  835,  GERMAN  INS.  CO  v.  GUECK,  130  111.  345,  23  N.  E.  112. 
Waiver   of   conditions   in   policy. 

Cited  in  Home  Ins.  Co.  v.  Bethel,  142  111.  549,  32  N.  E.  510,  holding  requirement 
of  proofs  of  loss  waived  where  refusal  to  pay  based  on  ground  of  lack  of  insur- 
able  interest;  Millers'  Nat.  Ins.  Co.  v.  Jackson  Count}'  Mill.  &  Elevator  Co.  60 
111.  App.  229.  holding  proof  of  loss  waived  where  refusal  to  pay  placed  on  other 
ground  of  nonliability;  Phenix  Ins.  Co.  v.  Belt  R.  Co.  82  111.  App.  271;  Home  Ins. 
Co.  v.  Bethel.  42  111.  App.  480,  holding  proofs  of  loss  waived  where  liability 
denied  in  any  event;  Phenix  Ins.  Co.  v.  Stocks,  149  111.  335,  36  N.  E.  408,  holding 


6  L.R.A.  SC5]  L.  R.  A.  CASES  AS  AUTHORITIES.  1210 

condition  requiring  arbitration  waived  where  refusal  to  pay  based  on  grounds  not 
subject  to  arbitration ;  Bernhard  v.  Rochester  German  Ins.  Co.  79  Conn.  392,  65 
Atl.  134,  8  A.  &  E.  Ann.  Cas.  298,  holding  company  estopped  to  insist  upon  re- 
quirement as  to  furnishing  proofs  of  loss  by  conduct  of  agent  in  telling  assured 
that  everything  necessary  had  been  done;  also  that  assured  was  excused  from  pro- 
ceeding to  secure  an  award  by  company's  repudiation  of  any  obligation;  Taylor  v. 
Glen  Falls  Ins.  Co.  44  Fla.  286,  32  So.  887,  holding  proofs  of  loss  provided  for 
in  policy  waived  by  unconditional  denial  of  any  liability  thereon  by  company. 

Cited  in  footnotes  to  Hoffman  v.  Michigan  Home  &  Hospital  Asso.  54  L.R.A. 
746,  \vhich  holds  failure  to  comply  with  requirements  as  to  proofs  of  loss  not 
fatal  when  liability  denied  for  other  reason;  Phenix  Ins.  Co.  v.  Kerr,  66  L.R.A. 
569,  which  holds  proofs  of  loss  waived  by  distinct  denial  of  liability  under  policy 
within  time  prescribed  for  proofs  on  ground  that  there  was  no  contract  of  insur- 
ance. 

Cited  in  notes    (8  L.  R.  A.  78)    on  waiver  of  proofs  of  loss;    (7  L.  R.  A.  83) 
on  provision  requiring  statement  and  proof  of  loss;    (67  L.R.A.  724,  732,  740) 
on  retention  of  policy  as  waiver  of  mistake  or  fraud  of  insurer  or   its  agent; 
(17  Am.  St.  Rep.  247)    on  waiver  of  conditions  in  insurance  policies. 
Reformation  of  instruments. 

Cited  in  Cook  v.  Westchester  F.  Ins.  Co.  60  Xeb.  131,  82  X.  W.  315,  reforming 
and  enforcing,  after  loss,  policy  incorrectly  inserting  wrong  person's  name  as 
owner  through  mistake  of  agent;  McGuire  v.  Hartford  F.  Ins.  Co.  7  App.  Div. 
586,  40  X.  Y.  Supp.  300,  holding  insured  entitled  to  enforce  policy  without 
reformation,  where  agent  failed  to  note  disclosed  encumbrances;  Keith  v.  Henkle- 
man,  173  111.  142,  50  X.  E.  692,  holding  that  equity,  on  reforming  bond,  may 
assess  damages  for  its  breach;  Taylor  v.  Glens  Falls  Ins.  Co.  44  Fla.  286,  32  So. 
887,  holding  reformation  of  policy  might  be  had  where  agent  inadvertently  made 
it  out  in  name  of  deceased  owner  of  insured  property;  Xiagara  F.  Ins.  Co.  v. 
Jordan,  134  Ga.  671,  68  S.  E.  611,  holding  case  of  mutual  mistake  relievable  in 
equity  made  by  inadvertent  substitution  of  another  for  insured  under  alleged 
circumstances,  and  acceptance  of  policy  in  reliance  on  agent  to  issue  it  according 
to  his  engagement:  Gray  v.  Merchant's  Ins.  Co.  113  111.  App.  542,  holding  policy 
containing  clause  limiting  company's  liability  to  proportion  sum  insured  lease 
to  actual  value  or  rental  of  premises  at  time  of  fire  might  be  reformed  by 
eliminating  such  provision. 

Cited  in  footnote  to  Bigham  v.  Madison,  47  L.  R.  A.  267,  which  authorizes 
rescission  for  mutual  mistake  as  to  location  of  boundary  lines  pointed  out  by 
vendor. 

Cited  in  notes  (11  L.  R.  A.  857)  on  mistake  in  written  contract,  relief  from; 
(17  L.  R.  A.  273)  on  parol  evidence  to  vary,  add  to,  or  alter  written  contract 
in  case  of  fraud,  surprise,  or  mistake;  (11  L.R.A. (X.S.)  357)  on  reformation  of 
insurance  policy  for  mistake  of  soliciting  agent;  (28  L.R.A.  (X.S.)  834)  on  refor- 
mation for  mistake  of  law  as  to  effect  of  instrument;  (117  Am.  St.  Rep.  238,  243) 
on  mistakes  for  which  written  instruments  may  be  cancelled  or  corrected  in  equity. 
Recovery  of  money  paid  toy  mistake. 

Cited  in  footnotes  to  Alton  v.  First  Nat.  Bank,  18  L.  R.  A.  144,  which  denies 
indorsee's  right  to  recover  back  amount  paid  under  mistaken  belief  as  to  liabil- 
ity; Langevin  v.  St.  Paul,  15  L.  R.  A.  766.  which  holds  agent's  mistaken  belief 
that  all  of  lots  jointly  sold  for  taxes  belonged  to  principal  not  ground  for  re- 
covery back  of  any  of  redemption  money  paid. 
Equitable  relief  from  mistake  of  law. 

Cited  in  Errett  v.  Wheeler,  109  Minn.  165,  26  L.R.A. (X.S.)    816,  123  N.  W. 


1211  L.  R.  A.  CASES  AS  AUTHORITIES.          "    [6  L.R.A.  839 

414,  holding  relief  not  granted  from  consequences  of  mistake  of  law  in  satisfying 
mortgage  of  record. 

G  L.  R.  A.  839,  CHADWICK  v.  COVELL,  151  Mass.  190,  21  Am.  St.  Rep.  442,  23 

X.  E.  IOCS. 
Trademark,  trade  name,  and  labels. 

Cited  in  Covell  v.  Chachvick,  153  Mass.  266,  24  Am.  St.  Rep.  625,  26  N.  E.  856, 
holding  that  purchaser  of  formulas  has  no  exclusive  right  to  accompanying  labels 
and  trademarks  as  against  former  donee;  Weener  v.  Brayton,  152  Mass.  102, 
8  L.  R.  A.  642,  25  X.  E.  46,  refusing  injunction  to  restrain  use  of  label  adopted 
generally  by  association  of  workmen  on  products  of  each ;  Gessler  v.  Grieb,  80 
\Vis.  26,  27  Am.  St.  Rep.  20,  48  X.  W.  1098,  refusing  injunction  against  use  of 
unpa tented  formula,  where  products  sold  under  different  name;  Dover  Stamping 
Co.  v.  Fellows,  163  Mass.  196,  28  L.  R.  A.  450,  47  Am.  St.  Rep.  448,  40  X.  E. 
105,  refusing  to  enjoin  use  of  name  merely  descriptive  of  patented  article,  after 
expiration  of  patent;  Messer  v.  The  Fadettes,  168  Mass.  143,  37  L.  R.  A.  722, 
60  Am.  St.  Rep.  371,  46  N.  E.  407,  refusing  to  enjoin  use  of  name  of  orchestra 
by  former  members,  though  organizer  sold  all  rights  in  same  to  plaintiff;  Stewart 
v.  Hook,  118  Ga.  447,  63  L.R.A.  256,  45  S.  E.  369,  denying  liability  of  subsequent 
to  prior  purchaser  from  same  vendor  of  secret  formula  for  medical  preparation: 
Saxlehner  v.  Wagner,  216  U.  S.  381,  54  L.  ed.  528,  30  Sup.  Ct.  Rep.  298,  holding 
that  if  no  deception  is  used  one  person  may  imitate  water  from  natural  spring 
especially  where  the  name  applied  thereto  has  become  the  name  for  natural  water 
coming  from  quite  an  extensive  district;  Dr.  Miles  Medical  Co.  v.  John  D.  Park  & 
Sons  Co.  220  U.  S.  402,  55  L.  ed.  516,  31  Sup.  Ct.  Rep.  376,  holding  that  person 
having  secret  process  for  manufacture  of  unpatented  article  is  protected  only 
against  invasion  of  rights  by  fraud  or  by  breach  of  trust  or  contract;  Jacobs  v. 
Beecham,  221  U.  S.  272.  55  L.  ed.  732,  31  Sup.  Ct.  Rep.  555,  holding  that  using 
name  of  manufacturer  of  pills  under  secret  formula  upon  pills  made  by  competitor 
is  unfair  although  accompanied  by  statement  that  latter  makes  the  pills;  John  D. 
Park  &  Sons  Co.  v.  Hartman,  12  L.R.A. (X.S.)  141,  82  C.  C.  A.  158,  153  Fed.  29, 
Reversing  145  Fed.  362,  holding  trade  secret  or  medical  formula  protects  its 
owner  only  against  those  who  acquire  it  under  confidential  obligation  to  guard 
against  disclosure,  and  one  is  free  to  use  process  or  formula  if  discovered  by  skill 
and  investigation  without  breach  of  trust,  and  may  make  and  sell  thing  or 
preparation  as  made  by  process  or  formula  of  original  discoverer,  if  that  be  the 
truth;  Pomeroy  Ink  Co.  v.  Pomeroy,  77  X.  J.  Eq.  296,  78  Atl.  698,  to  the  point 
that  employee  will  be  enjoined  from  using  or  communicating  process  or  invention 
of  employer. 

Cited  in  footnote  to  Dempsey  v.  Dobson,  32  L.  R.  A.  761,  which  holds  carpet 
manufacturers  entitled  to  record  of  recipes  prepared  by  color  mixer  employed. 

Cited  in  notes   (1  L.R.A.  ( X.S. )   709)   on  sale  of  trademark;    (12  L.R.A.  (N.-. 
104;    133   Am.  St.   Rep.   762,   767)    on  protection  of   secret  processes  and  trade 
secrets. 

Distinguished  in  Brown  Chemical  Co.  v.  Meyer.  139  U.  S.  548,  35  L.  ed.  250, 
11  Sup.  Ct.  Rep.  625,  holding  that  retiring  member  of  firm  may  sell  to  latter 
exclusive  right  to  use  his  trade  name;  Xew  England  Awl  &  Needle  Co.  v.  Marl- 
borough  Awl  &  Xeedle  Co.  168  Mass.  155,  60  Am.  St.  Rep.  377,  46  N.  E.  386, 
enjoining  use  of  packages  for  products  identical  with  those  used  by  established 
business;  Wat  kins  v.  Landon,  52  Minn.  393,  19  L.  R.  A.  239,  38  Am.  St.  Rep. 
560,  54  N.  W.  193,  holding  party  honestly  obtaining  formula,  entitled  to  com- 
pound and  sell  product,  but  not  to  use  established  trade  name:  Le  Page  Co.  v. 
llu^ia  Cement  Co.  17  L.  R.  A.  355,  2  C.  C.  A.  557,  5  U.  S.  App.  112,  51  Fed.  943, 


6  L.R.A.  839]  L.  R.  A.  CASES  AS  AUTHORITIES.  1212 

and  Petrolia  Mfg.  Co.  v.  Bell  &  B.  Soap  Co.  97  Fed.  783,  enjoining  vendor  to 
manufacturing  corporation  of  right  to  use  trade  name  on  its  products,  from  in- 
fringing use  of  name;  Harrison  v.  Glucose  Sugar  Ref.  Co.  58  L.  R.  A.  921,  53 
C.  C.  A.  491,  116  Fed.  311,  enjoining  employee  from  putting  to  use  in  competi- 
tive business,  secrets  learned  during  service;  Little  v.  Gallus,  4  App.  Div.  57!>, 
38  N.  Y.  Supp.  487  (dissenting  opinion),  majority  enjoining  former  employees 
from  using  secret  processes  learned  during  service. 

As  property. 

Cited  in  Hart  v.  Smith,  159  Ind.  186,  58  L.  R.  A.  952,  95  Am.  St.  Rep.  280, 

64  X.   E.   661,   holding  goodwill   of   business   subject   to   taxation   as   property; 
Cohen  v.  Xagle,  190  Mass.  18,  2  L.R.A.(N.S.)  973,  76  X.  E.  276,  5  Ann.  Cas.  553, 
as  to  existence  of  right  of  property  in  such  words  as  "Keystone  Cigars;"  O'Bear- 
Xester  Glass  Co.  v.  Antiexplo  Co.  101  Tex.  434,  16  L.R.A.(X.S.)  522,  130  Am.  St. 
Rep.  865,  108  S.  W.  967,  holding  secret  formula  for  preparing  compound  to  be 
mixed  with  gasolene,  kerosene  and  other  oils  to  prevent  explosions  not  property 
within  meaning  of  constitutional  restrictions  on  subscriptions  to  corporate  stock. 

Cited  in  footnote  to  Stewart  v.  Hook,  63  L.R.A.  255,  which  upholds  property 
right  of  discoverer  of  medical  preparation  in  his  discovery. 

Cited  in  note   (13  L.  R.  A.  652)   on  property  in  secrets,  processes,  and  recipes. 

—  Asslgrnaltility. 

Cited  in  Grossman  v.  Griggs,  186  Mass.  280,  71  X.  E.  560,  holding  name  or 

trademark  of  G.  H.  B &  Co.  not  assignable  in  gross ;  Bulte  v.  Igleheart  Bros. 

70  C.  C.  A.  76,  137  Fed.  499,  holding  transfer  of  business  and  good  will  of  owner 
of  symbol  necessary  qualification  to  assignability  of  trademark. 

Distinguished  in  JEtna  Mill  &  Elevator  Co.  v.  Kramer  Milling  Co.  82  Kan. 
684,  28  L.R.A.(X.S.)  939,  109  Pac.  692,  holding  labels  for  sacks  of  flour  bearing 
manufacturer's  name  purchasable. 

6  L.  R.  A.  842,  Re  WOMEN  AS  NOTARIES  PUBLIC,  150  Mass.  586,  23  X.  E. 
850. 

Supplementary  opinion  on  construction  of  statute  in  Opinion  of  Justices,   165- 
Mass.  599,  32  L.  R.  A.  350,  43  X.  E.  927. 
Woman's  right   to  hold   office. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Adams,  58  Ohio  St.  615,  41  L.  R.  A.  727, 

65  Am.  St.  Rep.  792,  51  X.  E.  135.  holding  woman  ineligible  to  appointment  as 
notary  under  constitutional  qualifications  for   state  officers;   Atty.   Gen.   v.   Ab- 
bott, 121  Mich.  547,  47  L.  R.  A.  96,  80  X.  W.  372,  holding  disability  bar  to  ap- 
pointment as  notary,  in  absence  of  enabling  statute;   Opinion   of  Justices,    165 
Mass.  599,  32  L.  R.  A.  350,  footnote  p.  350,  43  X.  E.  927,  holding  statute  au- 
thorizing appointment  of  women  as  notaries  public  by  governor  with  consent  of 
common  council,  unconstitutional:   Opinion  of  Justices,  73  X.  H.  624,  5  L.R.A. 
(X.S.)  417,  62  Atl.  969,  6  A.  &  E.  Ann.  Cas.  283,  holding  woman  not  qualified  to 
fill  office  of  notary  public. 

Cited  in  note   (38  L.  R.  A.  214)   on  right  of  woman  to  hold  office. 

—  To  practise  law. 

Cited  in  footnote  to  Re  Maddox,  55  L.  R.  A.  298,  which  denies  right  of  woman 
to  practise  law. 

6  L.  R.  A.  844,  WESTERN  U.  TELEG.  CO.  v.  ADAMS,  75  Tex.  531,  16  Am.  St. 

Rep.   920,   12   S.   W.   857. 
l):i  mniics    for   negligence   as   to   telegram. 

Cited  in  Young  v.  Western  U.  Teleg.  Co.  107  N.  C.  378,  9  L.  R.  A.  672,  22  Am. 


'1213  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  844 

St.  Rep.  883,  11  S.  E.  1044;  Mentzer  v.  Western  U.  Teleg.  Co.  93  Iowa,  755,  28 
L.  R.  A.  73,  57  Am.  St.  Rep.  294,  62  N.  W.  1;  Western  U.  Teleg.  Co.  v.  Odom, 
21  Tex.  Civ.  App.  539,  52  S.  W.  632;  Potts  v.  Western  U.  Teleg.  Co.  82 
Tex.  547,  18  S.  W.  604  —  upholding  recovery  for  mental  anguish  and  suffering; 
Western  U.  Teleg.  Co.  v.  Ferguson,  157  Ind.  78,  54  L.  R.  A.  851,  60  N.  E.  1080 
(dissenting  opinion)  majority  holding  damages  for  mental  anguish  not  re- 
coverable; Mitchell  v.  Western  U.  Teleg.  Co.  5  Tex.  Civ.  App.  530,  24  S.  W.  550, 
holding  more  than  nominal  damages  recoverable  for  substantial  injury  due  to 
delay  in  delivering  message;  McPeek  v.  Western  U.  Teleg.  Co.  107  Iowa,  363,  43 
L.  R.  A.  218,  70  Am.  St.  Rep.  205,  78  N.  WT.  63,  holding  that  sendee's  damages 
include  all  injurious  results  flowing  naturally  from  delay  in  delivery  of  tele- 
gram; Western  U.  Teleg.  Co.  v.  Kirkpatrick,  76  Tex.  218,  18  Am.  St.  Rep. 
37,  13  S.  W.  70,  holding  only  damages  recoverable  and  those  in  contemplation  of 
parties  at  time  of  contract;  Western  U.  Teleg.  Co.  v.  Jobe,  6  Tex.  Civ.  App. 
408,  25  S.  W.  168,  holding  evidence  of  expressions  tending  to  show  mental  an- 
guish, admissible;  Western  U.  Teleg.  Co.  v.  Johnson,  9  Tex.  Civ.  App.  50.  28 
S.  W.  124,  holding  proof  of  mental  anguish  unnecessary  where  record  shows  facts 
indicating  it;  Thomas  v.  Western  U.  Teleg.  Co.  25  Tex.  Civ.  App.  400,  61  S.  W. 
501,  holding  that  law  of  state  where  telegram  sent  governs  right  to  damages  for 
mental  anguish  resulting  from  nondelivery;  Western  U.  Teleg.  Co.  v.  Leland,  156 
Ala.  338,  47  So.  62  (dissenting  opinion),  on  recovery  for  mental  anguish  in 
absence  of  affirmative  proof  thereof  by  reason  of  failure  promptly  to  transmit 
message;  Western  U.  Teleg.  Co.  v.  Benson,  159  Ala.  271,  48  So.  712,  holding 
direct  evidence  of  mental  pain  caused  by  failure  to  deliver  death  message  prompt- 
ly not  indispensable  to  furnish  foundation  for  assessment  of  damages  for  mental 
anguish ;  Western  U.  Teleg.  Co.  v.  Simmons,  32  Tex.  Civ.  App.  579,  75  S.  W.  822, 
holding  plaintiff  suing  to  recover  for  mental  anguish  suffered  on  account  of  not 
being  present  at  funeral  of  relative  may  be  required  to  answer  questions  put 
to  ascertain  whether  mental  anguish  was  in  fact  suffered  from  such  cause; 
Barnes  v.  Western  U.  Teleg.  Co.  27  Nev.  445,  65  L.R.A.  679,  103  Am.  St.  Rep.  776, 
76  Pac.  931,  1  A.  &  E.  Ann.  Cas.  346,  holding  damages  allowable  for  mental 
suffering  due  to  failure  to  deliver  message  whether  accompanied  by  physical  suf- 
fering or  not. 

Cited  in  footnote  to  Getty  v.  Peters,  10  L.  R.  A.  464,  which  holds  damages  for 
mental  anguish  alone  from  delay  in  delivering  telegram  unrecoverable. 

Cited  in  notes   (7  L.  R.  A.  583)   on  damages  for  neglect  to  deliver  telegram; 
"(13  L.R.A.  860)    on  right  to  recover  damages  for  mental  anguish  alone;    (117 
Am.  St.  Rep.  314)    on  elements  of  damages  recoverable  for  failure  to  transmit 
and  deliver  telegrams. 

Distinguished  in  Western  U.  Teleg.  Co.  v.  Waller,  96  Tex.  593,  97  Am.  St.  Rep. 
936,  74  S.  W.  751,  holding  evidence  of  dying  mother's  inquiries  and  requests  for 
son's  presence  inadmissible  in  action  for  delay  in  delivering  telegram  summoning 
him. 

Disapproved  in  Chapman  v.  Western  U.  Teleg.  Co.  88  Ga.  764,  17  L.  R.  A. 
431,  30  Am.  St.  Rep.  183,  15  S.  E.  901;  Connell  v.  Western  U.  Teleg.  Co.  116  Mo. 
49,  20  L.  R.  A.  178,  38  Am.  St.  Rep.  575,  22  S.  W.  345;  Kester  v.  Western  U. 
Teleg.  Co.  55  Fed.  604;  Western  U.  Teleg.  Co.  v.  WTood,  21  L.  R.  A.  712,  6  C.  C. 
A.  450,  13  U.  S.  App.  317,  57  Fed.  477;  Western  U.  Teleg.  Co.  v.  Rogers,  68  Miss. 
756,  13  L.  R.  A.  862,  24  Am.  St.  Rep.  300,  9  So.  823  — holding  damages  for 
mere  mental  suffering  unrecoverable. 
Messages  in  cipher. 

Distinguished  in  Fererro  v.  Western  U.  Teleg.  Co.  9  App.  D.  C.  471,  35  L.  R, 
A.  552,  holding  consequential  damages  recoverable  for  delayed  cipher  message. 


6  L.R.A.  814]  L.  R.  A.  CASES  AS  AUTHORITIES.  1214s 

Kotice  of  ImportKJMie C«BB««air*tioas  relating  to  sictmeiw  and  death. 

Cited  in  Western  U-  Teleg.  Co.  v.  Gahan,  17  Tex.  Civ.  App.  661,  44  S.  W.  933. 
holding  message:  "Your  father  is  very  sick,  would  like  to  see  you,"  plainly  for 
benefit  of  addressee;  Western  U.  Teleg.  Co.  v.  Ward,  4  Tex.  App.  Civ.  Cas.  (Will- 
son  |  p.  554,  holding  telegram,  "Minnie  died  to-day,"  sufficient  notice  to  company 
of  its  importance;  Western  U.  Teleg.  Co.  v.  Hargrove,  14  Tex.  Civ.  App.  83,  3G 
S.  W.  1077,  holding  telegram,  "Daniel  is  very  sick,  come  at  once,"  sufficient  no- 
tice to  company;  Kennon  v.  Western  U.  Teleg.  Co.  126  X.  C.  235.  35  S.  E.  468T 
holding  that  notice  of  importance  of  telegram  must  be  brought  to  attention  of 
company  in  some  way  to  authorize  recovery;  Davis  v.  Western  U.  Teleg.  Co_ 
107  Ky.  529,  92  Am.  St.  Rep.  371,  54  S.  W.  849,  holding  message  relating  to 
death,  sufficient  notice  of  necessity  of  prompt  delivery:  Postal  Teleg.  4  Cable  Co. 
v.  Beal.  159  Ala.  252.  4S  So.  676.  holding  message:  "John  badly  hurt  wants  to  see 

yon  at  S coal  mine,7'  signifies  importance  and  notice  of  relationship  between 

parties;  Western  U.  Teleg.  Co.  v.  Church,  3  Xeb.   (Unof.)   32,  57  LU.A.  909,  9fr 
X.  W.  878,  holding  message  to  doctor  telling  him  to  come  at  once  sufficient  to 
give  notice  of  need  of  prompt  delivery. 
Xatmre  of  <MMBMMic*tio»   diiM-Io*ed   by  MM  term*. 

Cited  in  Western  U.  Teleg.  Co.  v.  Feegles,  75  Tex.  540,  12  S.  W.  860,  holding 
that  relationship  need  not  be  disclosed  on  face  of  telegram,  to  sustain  action  for 
injury  to  mother's  feelings;  Western  U.  Teleg.  Co.  v.  Moore,  76  Tex.  67,  18  Am. 
St.  Rep.  25,  12  S.  W.  949,  holding  words,  "Billie  is  very  low;  come  at  once," 
sufficient  notice  of  relationship;  Western  U.  Teleg.  Co.  v.  Carter,  85  Tex.  585, 
34  Am.  St.  Rep.  826,  22  S.  W.  961,  holding  telegraph  company  only  charged 
with  notice  of  relationship  existing  between  person  named  in  message;  Western 
U.  Teleg.  Co.  v.  Lian,  87  Tex.  11,  47  Am.  St.  Rep.  58,  26  S.  W.  490,  holding  tele- 
gram, '"Grace  is  very  low,"  sufficient  notice  of  its  importance;  Erie  Teleg.  Co.  T. 
Grimes,  82  Tex.  95,  17  S.  W.  831,  holding  agent's  actual  or  discoverable  knowl- 
edge of  importance  of  telegram  from  its  face,  chargeable  to  company;  Western 
U.  Teleg.  Co.  v.  Xagle,  11  Tex.  Civ.  App.  541,  32  S.  W.  707,  holding  company 
liable  where  cipher  message  was  known  by  it  to  be  important  and  marked 
-rush:"  Western  U.  Teleg.  Co.  v.  Snow,  31  Tex.  Civ.  App.  279,  72  S.  W.  _ 
holding  expression  '"Come  quick"  sufficient  notice  of  urgency  of  telegram  to  ren- 
der company  liable  for  delay  in  delivering;  Mitchell  v.  Western  U.  Teleg.  Co. 
5  Tex.  Civ.  App.  531,  24  S.  W.  550,  holding  that  sufficient  notice  of  main  purpose 
of  message  puts  telegraph  company  upon  inquiry  of  other  facts;  Western  1\ 
Teteg.  Co.  v.  Church,  3  Xeb.  (Unof.)  32.  57  LJLA.  909,  90  N.  W.  878,  holding  tele- 
2  ram  to  physician  "'Come  at  once,"  sufficient  notice  to  support  action  for  substan- 
tial damages;  Western  U.  Teleg.  Co.  v.  Turner,  94  Tex.  309,  60  S.  W.  432.  holding 
company  in  default  liable  when  message  read:  "Accept  offer  five  three  quarters:" 
Western  U.  Teleg.  Co.  v.  Weniski.  84  Ark.  461,  106  S.  W.  486,  holding  message: 
"If  yon  can.  come  at  once,  Clara"  signed  "Pa."  does  not  disclose  facts  leading  to 
information  of  any  special  injury  by  reason  of  nondelivery;  Western  U.  Teleg.  Co. 
T.  Potts,  120  Tenn.  4*  19  KR_A.(XJS.)  481,  127  Am.  St.  Rep.  991,  113  S.  W. 
789,  holding  company  may  learn  grounds  upon  which  it  may  base  estimate  of. 
or  anticipate  damages  naturally  consequent  upon  failure  properly  to  deliver, 
either  from  facts  communicated  to  its  agents  outside  message,  or  from  message 
itself;  Western  U.  Teleg.  Co.  v.  Kibble,  53  Tex.  Civ.  App.  226,  115  S.  W.  643. 
holding  that  telegram  "come  at  once"  is  insufficient  in  and  of  itself  to  charge 
company  with  notice  that  mental  suffering  would  probably  result  to  addressee 
from  failure  to  promptly  deliver  it. 


3215  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  844 

Liability   for  m  in  take   in   teleg-ram. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Short,  9  L.  R.  A.  744,  which  holds 
company   prima  facie   liable   for   failure  to   transmit  message  correctly. 
V,  lin   may  sue   for  breach   of   contract. 

Distinguished  in  House  v.  Houston  Waterworks  Co.  88  Tex.  239,  28  L.  R.  A. 
533,  31  S.  W.  179,  holding  that  citizen  cannot  recover  for  injuries  due  to  breach 
of   contract   between    waterworks    company   and    municipality. 
AH   to   telegrams. 

Cited  in  Western  U.  Teleg.  Co.  v.  Beringer,  84  Tex.  39,  19  S.  W.  336,  uphold- 
ing recovery  by  person  for  whom  message  was  sent,  although  sender  not  his 
agent;  Western  U.  Teleg.  Co.  v.  Hale,  11  Tex.  Civ.  App.  81,  32  S.  W.  814,  hold- 
ing message,  "Allen  is  very  low,"  for  benefit  of  addressee;  -Fererro  v.  Western 
U.  Teleg.  Co.  9  App.  D.  C.  467,  35  L.  R.  A.  550,  holding  that  receiver  of  mes- 
sage may  maintain  action  for  damages;  Sherrill  v.  Western  U.  Teleg.  Co.  1CJ  X. 
C.  533,  14  S.  E.  94;  Butler  v.  Western  U.  Teleg.  Co.  62  S.  C.  232,  89  Am.  St.  Rep. 
893,  40  S.  E.  162;  Western  U.  Teleg.  Co.  v.  Mellon,  96  Tenn.  71,  33  S.  W.  .725 
— holding  action  for  nondelivery  maintainable  by  person  named  as  beneficiary, 
although  not  addressee;  Herron  v.  Western  U.  Teleg.  Co.  90  Iowa,  131,  57  N. 
W.  696,  holding  that  telegraph  company  may  be  liable  to  addressee  for  delay 
in  delivery  of  message;  Mathonican  v.  Scott,  87  Tex.  398,  28  S.  W.  1063,  holding 
that  agreement  for  valuable  consideration  to  pay  debt  of  third  person  inures 
to  benefit  of  third  person;  Western  U.  Teleg.  Co.  v.  Evans,  5  Tex.  Civ.  App.  58, 
23  S.  W.  998,  upholding  recovery  where  language  of  message  was  sufficient  to 
show  its  purpose  and  scope;  Wells  v.  Western  U.  Teleg.  Co.  144  Iowa,  617,  24 
L.R.A.  (X.S.)  1045,  138  Am.  St.  Rep.  317,  123  X.  W.  371,  holding  that  bank 
which  cashed  check  upon  receipt  of  fictitious  message  purporting  to  be  from 
drawer's  bank  has  right  of  action  against  telegraph  company  where  agent  of 
company  knew  facts;  Frazier  v.  Western  U.  Teleg.  Co.  45  Or.  419,  67  L.R.A.  321,. 
78  Pac.  330,  2  A.  &  E.  Ann.  Gas.  396,  holding  telegraph  company  not  liable  to 
addressee,  for  negligence  in  delivering  message  showing  on  its  face  it  is  for 
benefit  of  sender;  Western  U.  Teleg.  Co.  v.  Cook,  45  Tex.  Civ.  App.  91,  99  S.  W. 
1131,  holding  party,  who  in  fact  was  to  be  served  and  who  is  damaged  may 
sue  on  account,  of  delay  in  transmission  and  delivery  of  message;  Whitehill  v. 
Western  U.  Teleg.  Co.  136  Fed.  501,  holding  person  for  whose  benefit  message  is- 
sent,  if  that  fact  be  apparant  from  telegram  itself  may  maintain  action  for  dam- 
ages due  to  negligence  of  company. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Barefoot,  64  L.  R.  A.  491,  which, 
holds  that  agent  may  maintain  action  for  nondelivery  of  telegram  sent  prin- 
cipal to  obtain  confirmation  of  sale  entitling  him  to  commissions;  Shingleur 
v.  Western  U.  Teleg.  Co.  30  L.  R.  A.  444,  which  denies  right  of  one  voluntarily 
carrying  out  contract  by  agent  in  accordance  with  telegram  wrongly  trans- 
mitted, to  recover  against  company;  McC'ornick  v.  Western  U.  Teleg.  Co.  38  L^ 
R.  A.  684,  which  denies  telegraph  company's  liability  to  banker  cashing  draft  on- 
faith  of  incorrectly  transmitted  telegram  from  drawee  purporting  to  author- 
ize drawer  to  make  draft. 

Cited  in  notes  (9  L.R.A.  669)  on  who  may  recover  damages  for  delay  in  de- 
livering telegram;  24  Eng.  Rul.  Cas.  784,  785,  on  addressee's  right  of  action  for 
mistake  in  telegram. 

Distinguished  in  Western  U.  Teleg.  Co.  v.  Schriver,  4  L.R.A. (X.S.)  686,  72 
C.  C.  A.  596,  141  Fed.  548.  holding  telegraph  company  does  not  owe  to  undis- 
closed principal  of  addressee  duty  to  receive  and  transmit  authorized  messages, 
only. 


6  L.RJL  844]  L.  R.  A.  CASES  AS  AUTHORITIES.  1216 


Cited  in  MeLeod  v.  Pacific  States  Teleph.  A  Teleg.  Co.  52  Or.  27,  15  L.R.A. 
(X.S.)   812,  94  Pae.  568,  16  A.  &  EL  Ann.  Cms.  1239,  holding  addressee  of  tele- 
phone message  has  right  of  action  against  telephone  company  for  failure  to  give 
addressee  notice  of  long  distance  calL 
Damarrr*  far  mental  mmf+rtmg. 

Cited  in  Seifert  v.  Western  U.  Teleg.  Co.  129  Ga,  185,  11  L.R.A.(X.S.)  1152.  5S 
S.  E.  699,  on  recovery  of  damages  for  mental  anguish  independently  of  physical 
tort;  Ft  Worth  &  R.  G.  R.  Co.  v.  Jones,  38  Tex.  Civ.  App.  137,  85  S.  W.  37 
(dissenting  opinion),  on  absence  of  necessity  of  expressly  proving  mental  an- 
guish as  basis  of  recovery  of  damages. 

Cited  in  note   (30  LJRJLrX.Sj    1143)   on  right  of  addressee  of  telegram  to 
recover  for  mental  suffering  from  delay  in  delivery. 
KvMeMce  to  mho-w  meata!  »»R»I«fc. 

Cited  in  Willis  T.  Western  U.  Teleg.  Co.  69  S.  G.  535,  104  Am.  St  Rep.  828,  48 
S.  E.  538,  2  A.  &  EL  Ann.  Cas.  52,  holding  that  plaintiff  can  state  his  own  pecu- 
liar apprehensions  and  conclusions  as  to  mother's  condition  on  failure  to  receive 
answer  to  telegram. 

Cited  in  note  (19  LJLA.CSLS.)  410,  411)  on  what  evidence  admissible  to 
show  mental  anguish. 

6  L.  R.  A.  847,  STATE  v.  GILLMAX,  33  W.  Va.  146,  10  S.  E.  283. 
Police  p*wer. 

Cited  in  Man  Lack  T.  Sears,  29  Or.  427,  32  L.  R.  A.  739,  54  Am.  St.  Rep.  804, 
44  Pae.  693,  upholding  validity  of  statute  making  possession  of  opium  without 
license  or  prescription,  a  crime;  State  v.  Goodwill,  33  W.  Ya.  185,  6  L.  R.  A. 
624,  25  Am.  St.  Rep.  863,  10  S.  EL  285,  holding  statute  discriminating  between 
mine  and  factory  owners,  and  other  owners  of  property,  as  to  labor  contracts, 
void;  State  v.  Peel  Splint  Coal  Co.  36  W.  Va.  857,  17  L.  R.  A.  403,  15  S.  E. 
1000  (dissenting  opinion)  majority  holding  statutes  prohibiting  issue  of  scrip 
by  employer  to  employee  redeemable  in  anything  except  lawful  money,  and 
requiring  payment  for  coal  by  weight  before  screening,  valid;  State  v.  Swift. 
35  W.  Va.  545,  14  S.  EL  135,  holding  agent  receiving  order  in  Roane  county  on 
his  firm  in  Wood  county,  indictable  where  order  taken  unless  acting  under 
state  license;  Eidge  v.  Bessemer,  164  Ala.  603,  26  L.R.A.(X.S.)  397,  51  So.  246. 
holding  ordinance  prohibiting  keeping  of  vinous,  spirituous  or  malt  liquors,  or  in- 
toxicating beverage  which  is  product  of  maltaee,  or  gencase.  as  substantial  in- 
gredient or  storage  or  deposit  where  beverages  are  kept  for  sale,  is  void;  Schwartz 
T.  People,  46  Colo.  263,  104  Pac-  92,  holding  that  if  mandatory  constitutional 
provision  in  respect  to  prohibition  by  legislature  of  importation,  manufacture 
and  sale  of  impure  liquors  covers  entire  subject  matter  of  intoxicating  liquors, 
legislature  exhausts  its  power  respecting  liquors  of  every  sort,  pure  and  impure, 
by  prohibiting  importation,  manufacture  and  sale  of  impure  liquors  enumerated 
by  such  provision;  Com.  v.  Campbell.  133  Ky.  62.  24  L.RJMX.S.)  383,  117  S.  W. 
383,  holding  it  incompetent  for  legislature  to  prohibit  citizen  from  having  spiritu- 
ous liquor  in  his  possession  for  his  own  use:  State  v.  Mclntyre.  139  X.  C.  602, 
52  S.  EL  63,  on  unconstitutionality  of  law  making  mere  ownership  or  possession  of 
given  amount  of  whisky  a  crime;  State  v.  Williams,  146  X.  C.  633,  17  L.R.A. 
<X.SJ  305,  61  Su  K  61,  14  A.  A  EL  Ann.  Cas.  562,  holding  law  prohibiting  any 
person  from  carrying  into  county  more  than  one-half  gallon  of  vinous,  spiritu- 
ous or  malt  liquor  is  not  valid  exercise  of  police  power;  Gulf.  C.  A  S.  F.  R.  Co. 
v.  State,  28  Okla.  760,  35  LRJMX.S.)  460,  116  Pac.  176,  to  the  point  that  in- 


1217  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  849 

toxicating  liquors  in  state  in  which  they  may  be  sold  are  property  within  mean- 
ing of  constitution. 

Cited  in  notes  (1  L.R.A.(X.S.)  490)  on  constitutional  command  to  enact  law 
as  implied  prohibition  against  further  legislation  on  same  subject;  (15  L.R.A. 
(X.S.;  915)  on  constitutional  right  to  prohibit  sale  of  intoxicants;  (24  LJLA. 
(N.S.)  175)  on  power  to  prohibit  or  restrict  one's  using  liquor  or  having  in  pos- 
session for  use;  (26  L.R.A.(N.S.)  394,  395)  on  power  to  prohibit  keeping  irre- 
spective or  any  intention  unlawfully  to  sell  liquor. 

6  L.  R.  A.  849,  RICHMOND  A  D.  R.  CO.  v.  PAYNE,  86  Va.  481,  10  S.  E.  749. 
Limitation  of  common-law  liability. 

Cited  in  Nbrmile  v.  Oregon  Nav.  Co.  41  Or.  189,  69  Pac.  928,  sustaining  con- 
tract limiting  carrier's  liability  to  certain  valuation,  in  consideration  of  reduced 
rate;  Zouch  v.  Chesapeake  &  O.  R-  Co.  36  W.  Va.  534.  17  L.  R.  A.  120,  15  S. 

E.  185,  holding  valuation  agreed  upon  at  shipment  for  reduced  rate,  controlling 
in  absence  of  gross  negligence;  Pacific  Exp.  Co.  v.  Foley,  46  Kan.  4G3,  12  L.  R. 
A.  802,  26  Am.  St.  Rep.  107,  26  Pac.  665,  holding  limitation  of  liability  where 
no  value  disclosed  in  freight  receipt,  controlling  in  case  of  ordinary  negligence; 
Ullman  v.   Chicago  &  N.  W.  R.   Co.   112  Wis.   157.   56  L.  R.  A.  249,  88   Am. 
St.  Rep.  949,  88  N.  W.  41,  holding  agreed  valuation  whether  inserted  by  ship- 
per or  carrier,  an'l  not  objected  to,  controlling  in  absence  of  gross  negligence; 
Hanson  v.  Great  Northern  R.  Co.  18  N.  D.  333,  138  Am.  St.  Rep.  768,  121  N.  W. 
78,  holding  that  under  statute  carrier  cannot  exonerate  himself  from  liability 
for  loss  or  damage  resulting  from  negligence;   George  N.  Pierce  Co.  v.  Wells, 

F.  &  Co.  110  C.  C.  A.  645,  189  Fed.  564,  holding  that  common  carrier  may  con- 
tract with  shipper  to  limit  amount  of  its  liability  for  negligence. 

Cited  in  footnotes  to  Chicago  &  N.  W.  R.  Co.  v.  Chapman,  8  L.  R,  A.  508, 
which  holds  carrier  cannot  limit  liability  for  gross  negligence  or  wilful  miscon- 
duct; Taffe  v.  Oregon  R,  &  Nav.  Co.  58  L.  R.  A.  187,  which  denies  initial  carrier's 
liability  under  bill  of  lading  beyond  own  line;  Union  State  Bank  v.  Fremont, 
E.  &  M.  Valley  R.  Co.  59  L.  R.  A.  939,  which  sustains  initial  carrier's  right  to 
limit  liability  to  own  line;  Dlinois  C.  R.  Co.  v.  Carter,  36  L.  R.  A.  527,  which 
denies  liability  of  initial  carrier  for  misdelivery  by  connecting  line  or  warehouse-' 
man. 

Cited  in  notes  (22  Am.  St.  Rep.  58)  on  limitation  of  carrier's  liability:  (23 
Am.  St.  Rep.  594)  on  limitation  of  amount  of  carrier's  liability;  (88  Am.  St. 
Rep.  107)  on  limitation  of  carrier's  liability  in  bills  of  lading;  (1  L.R.A.  <N>. 
986)  on  limiting  valuation  of  property  as  affecting  amount  of  recovery  for  loss 
by  carrier's  negligence;  (42  L."  ed.  U.  S.  690)  on  validity  and  construction  of  con- 
tracts exempting  from  liability  for  negligence. 

Distinguished  in  Calderon  v.  Atlas  S.  S.  Co.  170  U.  S.  279,  42  L.  ed.  1036,  18 
Sup.  Ct.  Rep.  588,  holding  limitation  of  liability  to  certain  amount  except  where 
special  agreement  on  disclosed  value  made,  invalid;  Baltimore  &  O.  S.  W.  R.  Co. 
v.  Ragsdale,  14  Ind.  App.  410.  42  N.  E.  1106,  holding  agreed  valuation  of  stock 
in  bill  of  lading  not  controlling  in  case  of  loss  by  negligence:  Western  U.  Teleg. 
Co.  v.  Seals,  56  Xeb.  418.  71  Am.  St.  Rep.  682,  76  N.  W.  903,  holding  limita- 
tion of  liability  for  negligence  in  transmission  of  unrepeated  telegraph  messages 
not  controlling:  Chesapeake  *  O.  R.  Co.  v.  Beasley.  104  Va.  792,  3  L.R.A.(N.S.) 
187,  52  S.  E.  566,  holding  under  statute  that  carrier  cannot  limit  his  liability  for 
negligence  by  contract. 
Bill  of  particular*. 

Cited  in  Clarke  v.  Ohio  River  R.  Co.  39  W.   Va,  742,  20  S.  E.  696,  holding 
L.R.A.  Au.  Vol.  I.— 77. 


6  L.R.A.  849]  L.  R.  A.  CASES  AS  AUTHORITIES.  1218 

demand  proper  only  where  cause  of  action  not  disclosed  and  declaration  not  de- 

murrable. 

Liability  of  carrier  of  livestock. 

Cited  in  note   (37  L.  ed.  U.  S.  293)    on  duty  and  liability  as  carrier  of  live 
stock. 
Liability  of  initial   carrier. 

Cited  in  footnotes  to  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Coolidge,  67  L.R.A.  555, 
which  holds  that  delay  by  initial  carrier  in  transporting  goods  liable  to  injury 
by  climate  renders  it  liable  for  damage  to  goods  delivered  to  consignee  in  damaged 
condition,  unless  it  shows  that  such  delay  did  not  produce  the  injury  in  whole  or 
part,  notwithstanding  delay  of  connecting  carrier;  Kansas  City  F.  S.  &  M.  R.  Co. 
v.  Washington,  69  L.R.A.  65,  which  holds  initial  carrier  checking  baggage  to 
destination  on  through  ticket  liable  for  loss  on  connecting  line. 

6  L.  R.  A.  855,  DELAWARE,  L.  &  W.  R.  CO.  v.  CENTRAL  STOCK  YARDS  & 

TRANSIT  CO.  45  N.  J.  Eq.  50,  17  Atl.  146. 
Bfandatory   injunction,   when   issnable. 

Cited  in  Gatzmer  v.  St.  Vincent  School  Soc.  147  Pa.  319,  23  Atl.  452.  holding 
mandatory  injunction  not  issuable  where  complainant's  rights  not  clear;  Calla- 
way  v.  Baltimore,  99  Md.  320,  57  Atl.  661,  holding  bill  for  injunction  to  restrain 
city  from  doing  anything  under  ordinance  repealing  ordinance  appropriating 
money  for  purchase  of  reservoir  site  insufficient  in  that  it  did  not  show  right 
to  compel  city  to  perform  contract  by  taking  and  paying  for  such  site. 
When  property  impressed  with  pnblic  use. 

Cited  in  Indiana  Natural  &  Illuminating  Gas  Co.  v.  State,  158  Ind.  519,  57 
L.  R.  A.  762,  63  N.  E.  220,  holding  gas  company  impressed  with  public  use, 
compelling  nondiscriininating  service;  Willoughby  v.  Chicago  Junction  R.  & 
Union  Stock- Yards  Co.  50  N.  J.  Eq.  695,  25  Atl.  277,  raising  without  deciding 
whether  stock-yards  company  charged  with  public  duty. 

Cited  in  note   (6  L.R.A.  (N.S.)   S37)   on  businesses  affected  with  public  interest 
subjecting  them  to  regulation  and  control  in  respect  to  rates  and  prices. 
• —  Stock  yards. 

Cited  in  Ratcliff  v.  Wichita  Union  Stock  Yards  Co.  74  Kan.  10,  6  L.R.A. (N.S.) 
841,  118  Am.  St.  Rep.  298,  86  Pac.  150,  10  A.  &  E.  Ann.  Gas.  1016,  holding  stock 
yards  business  clothed  with  public  interest  and  subject  to  regulation  and  control 
by  state;  Eshleman  v.  Union  Stock  Yards  Co.  222  Pa.  28,  70  Atl.  899,  15  A.  & 
E.  Ann.  Cas.  998,  25  Lane.  L.  Rev.  77,  on  correspondence  of  stock  yards  business 
with  that  of  warehousemen. 
Power  of  legislature  to  declare  and  regulate. 

Cited  in  State  ex  rcl.  Star  Pub.  Co.  v.  Associated  Press,  159  Mo.  462,  51  L. 
R.  A.  168,  81  Am.  St.  Rep.  368,  60  S.  W.  91,  holding  that  only  legislature  can 
declare  news-gathering  agency  impressed  with  public  use;  Budd  v.  New  York.  143 
U.  S.  543,  36  L.  ed.  255,  12  Sup.  Ct.  Rep.  468,  and  State  ex  rel.  Stoeser  v.  Brass, 
2  N.  D.  501,  52  N.  W.  408,  holding  grain  elevators  devoted  to  public  use  and 
subject  to  legislative  regulation;  Getting  v.  Kansas  City  Stock  Yards  Co.  183 
U.  S.  85,  46  L.  ed.  99,  22  Sup.  Ct.  Rep.  30,  holding  that  legislature  may  fix 
maximum  stock  yard  charges;  Jacquelin  v.  Erie  R.  Co.  69  N.  J.  Eq.  440,  61  Atl. 
18,  denying  preliminary  injunction  to  require  railroad  company  to  continue  to 
furnish  railroad  facilities  at  station  which  company  desired  to  abandon ;  Gulf 
Compress  Co.  v.  Harris,  158  Ala.  354,  24  L.R.A. (N.S.)  404,  48  So.  477,  holding 
that  prescribing  of  rates  for  "public  service  corporation"  as  one  ''affected  with 
public  interest"  is  legislative  and  not  judicial  function,  and  that  court  of  chan- 


1219  L.  R.  A.  CASES  AS  AUTHORITIES.  [6  L.R.A.  855 

eery  is  without  jurisdiction  to  fix  rates;  McCarter  v.  Firemen's  Ins.  Co.  74  N.  J. 
Eq.  405,  29  L.R.A.(N.S.)  1211,  73  Atl.  414  (dissenting  opinion),  on  legislative 
control  of  property  devoted  to  public  use. 

Cited  in  note  (25  Ain.  St.  Rep.  889)  on  power  of  legislature  to  prescribe  rates 
for  services  in  businesses  charged  with  public  use. 
Itig-hts  of  warehousemen. 

Cited  in  footnote  to  Central  Elevator  Co.  v.  People,  43  L.  R.  A.  658,  which 
denies  right  of  licensed  warehouseman  to  deal  in  and  store  grain  in  own  li- 
censed warehouse. 

Cited  in  notes  (7  L.R.A.  529)  on  warehousemen  as  bailees;  (24  L.R.A. (N.S.) 
400)  on  power  of  equity  to  regulate  charges  of  public  warehouseman. 


L.  R.  A.  CASES  AS  AUTHORITIES. 


CASES  IN  7  L.  R  A. 


7  L.R.A.  33,  O'CONNER  v.  O'CONNER,  88  Tenn.  76,  12  S.  W.  447. 
Vendor's  lien. 

Cited  in  Zwingle  v.  Wilkinson,  94  Tcnn.  250,  28  S.  W.  1090,  holding  vendor's 
equitable  lien  for  unpaid  purchase  price  of  land  not  affected  because  note  for  bal- 
ance of  purchase  money  was  executed  to  third  person. 

Cited  in  footnotes  to  Frame  v.  Sliter,  34  L.  R.  A.  090,  which  denies  implied 
equitable  lien  to  grantor  of  land  for  unpaid  purchase  money;   Doty  v.  Deposit 
Bldg.  &  L.  Asso.  43  L.  R.  A.  551,  which  holds  vendor's  lien  enforceable  against 
land  for  entire  amount  unpaid  on  sale  of  real  and  personal  property. 
Fraudulent    conveyance. 

Cited  in  Blackmore  v.  Parkes,  20  C.  G.  A.  671,  54  U.  S.  App.  123,  81  Fed. 
900,  holding  conveyance  by  insolvent  in  consideration  that  grantee  pay  debts  of 
the  insolvent  not  fraudulent. 

Distinguished  in  Spurlock  v.  Gill,  3  Shannon  Cas.  43,  holding  strangers  could 
not  object  that  an  agreement  to  take  goods  and  assume  the  debt  was  oral. 
Action   by   mortgagee. 

Cited  in  note    (6  L.  R.  A.  612)    on  personal  action  by  mortgagee. 
Grantee's  liability  for  existing:  encumbrances. 

Cited  in  Christian  v.  John,  111  Tenn.  101,  76  S.  W.  906,  holding  grantees  tak- 
ing a  deed  expressly  subject  to  mortgage  estopped  to  set  up  its  invalidity  or  that 
it  is  barred  by  statute  of  limitation. 
Action  ag-ainst  person  assuming:  debt  or  obligation. 

Cited  in  Ruohs  v.  Traders'  F.  Ins.  Co.  Ill  Tenn.  429,  102  Am.  St.  Rep.  790,  78 
S.  W.  85,  holding  policy  holder  entitled  to  sue  in  his  own  name  against  insurance 
company  assuming  all  the  policies  of  insuring  company  for  a  sufficient  consid- 
eration. 
Primary  subjection  of  personalty  to  debts  of  decedent. 

Cited  in   Whitmore  v.   Rascoe,   112  Tenn.  629,  85   S.  W.  800,  holding  widow 
subrogated  to  rights  of  lien  creditors  of  husband's  estate  in  his  personal  estate 
who  elect  to  take  satisfaction  out  of  the  land  where  such  election  deprives  widow 
of  her  dower  and  homestead  right. 
Liability  of  heir  for  debt  of  ancestor. 

Cited  in  note  (112  Am.  St.  Rep.  1022)  on  liability  of  heir  or  devisee  for  debt 
of  ancestor. 

1221 


7  L.R.A.  44]  L.  R.  A.  CASES  AS  AUTHORITIES. 

7  L.  R.  A.  44,  WHITE  v.  CINCINNATI.  X.  0.  &  T.  P.  R.  CO.  89  Ky.  478,  12 

S.  W.  936. 
Effect  of  contributory    m-uli  -  t-nrr   respecting:  stations  and   platforms. 

Cited  in  Union  P.  R.  Co.  v.  Evans.  32  Xeb.  55.  71  X.  W.  1062,  to  point  that  one 
knowing  approach  to  railway  station  unsafe  may  recover  for  injury  sustained 
while  exercising  ordinary  care. 

Cited  in  note  (44  L.  R,  A.  294)  as  to  effect  of  contributory  negligence  on  duty 
of  carrier  of  live  stock  to  furnish  pens  at  stations. 
Knowledge  of  unsafe  condition. 

Cited  in  Louisville  &  X.  R.  Co.  v.  Treppon,  134  Ky.  657,  121  S.  W.  454,  holding 
railroad  company  liable  for  injury  caused  by  failure  to  exercise  care  in  keeping 
cars  in  reasonably  safe  condition  where  it  has  notice  of  defects. 
Liability  of  carrier  for  injury  to  livestock. 

Cited  in  note  (130  Am.  St.  R?p.  461)  on  carriers  liability  for  loss  of.  or  in- 
jury to,  livestock. 

7  L.  R.  A.  46,  PITTSBURGH  CARBOX  CO.  v.  McMILLIX,   119  X.  Y.  46,  28 

N.  Y.  S.  R,  807,  23  N.  E.  530. 
Rights  and  powers  of  receivers. 

Cited  in  Gray  v.  De  Castro  &  D.  Sugar  Ref.  Co.  32  X.  Y.  S.  R,  1020,  10  X. 
Y.  Supp.  632,  sustaining  injunction  restraining  corporation  belonging  to  illegal 
trust  and  for  which  receiver  has  been  appointed  from  parting  with  assets  re- 
ceived under  trust  deed;  Re  Victor,  20  Misc.  15,  44  X.  Y.  Supp.  603,  to  point 
that  receiver  while  authorized  to  prosecute  and  defend  actions  is  but  the  creature 
of  the  court  as  trustee  or  custodian  of  fund:  Hamor  v.  Taylor-Rice  Engineering 
Co.  84  Fed.  399,  holding  receiver  as  representative  of  creditors  may  assert  de- 
fense on  their  behalf  which  corporation  could  not  maintain;  Peabody  v.  New 
England  Water-Works  Co.  184  111.  628,  75  Am.  St.  Rep.  195,  56  X.  E.  '.'57,  hold- 
ing receiver  represents  both  corporation  and  creditors  and  may  in  behalf  of  latter 
assert  claim  he  could  not  maintain  as  representative  of  former;  Harrington 
v.  Connor,  51  Neb.  219,  70  X.  W.  911,  holding  defense  not  good  against  creditors 
of  bank  and  involving  fraud  against  them  not  available  in  suit  by  receiver  of 
bank;  Washington  Mill  Co.  v.  Sprague  Lumber  Co.  19  Wash.  171,  52  Pac.  1067, 
holding  receiver  of  insolvent  corporation  may  disaffirm  its  acts  and  maintain 
suit  to  set  aside  its  fraudulent  conveyances;  Re  Wendler  Mach.  Co.  2  App.  Div. 
19,  37  N.  Y.  Supp.  444,  holding  receiver  has  power  to  contest  validity  of  mort- 
gage given  to  secure  bonds  of  insolvent  corporation;  Mott  v.  Edwards.  '.'- 
Div.  513.  90  X.  Y.  Supp.  303,  holding  a  general  assignee  of  insolvent  corporation 
in  endeavoring  to  reach  assets  for  benefit  of  creditors  may  enforce  a  claim 
against  one  who  while  corporation  was  insolvent  purchased  its  propertv  and 
paid  for  same  to  individual  account  of  its  officer;  American  Can  Co.  v.  Erie 
Preserving  Co.  171  Fed.  542,  holding  a  receiver  for  a  corporation  to  wind  up  its 
affairs  may  contest  the  validity  of  liens  or  pledges  made  by  its  corporation  in 
behalf  of  its  general  creditors. 

Distinguished  in  Gray  v.  Oxnard  Bros.  Co.  31  X.  Y.  S.  R.  972.  13  X.  Y.  Supp. 
86,  holding  receiver  of  individual  corporation  in  illegal  partnership  cannot  main- 
tain action  for  accounting  or  dissolution. 
Monopolies. 

Cited  in  United  States  v.  Addyston  Pipe  &  Steel  Co.  46  L.  R.  A.  136.  20  C. 
O.  A.  160,  54  U.  S.  App.  723,  85  Fed.  291.  holding  contract  to  sell  property,  busi- 
ness, or  good  will,  or  to  create  partnership  or  corporation,  invalid  if  part  of  plan 
to  establish  monopoly;  National  Harrow  Co.  v.  Hench,  76  Fed.  669,  holding  com- 


1223  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  50 

bination  of  patent  owner*  to  prevent  competition  and  maintain  price  illegal; 
National  Harrow  Co.  v.  Hench,  39  L.  R.  A.  300,  27  C.  C.  A.  351,  55  U.  S.  App. 
53,  83  Fed.  38,  holding  while  patentees  may  compose  their  differences  they  can- 
not make  the  occasion  an  excuse  for  creating  monopolies;  Lovejoy  v.  Miehels, 
88  Mich.  28,  13  L.  R.  A.  775,  49  X.  W.  901,  by  Champlin,  Ch.  J.,  to  point  that 
combination  to  control  prices  is  odious  as  illegal  exercise  of  franchises  of  a  mo- 
nopoly; John  D.  Park  &  Sons  Co.  v.  National  Wholesale  Druggists'  Asso.  175  N. 
Y.  36,  62  L.  R.  A.  647,  96  Am.  St.  Rep.  578,  67  N.  E.  136  (dissenting  opinion) 
majority  upholding  agreement  between  manufacturers  of  medicines  and  whole- 
salers made  for  purpose  of  maintaining  uniform  jobbing  and  retail  prices;  Peo- 
ple v.  Klaw,  55  Misc.  91,  106  X.  Y.  Supp.  341,  holding  a  theater  and  play  pro- 
duction monopoly  not  within  statute  prohibiting  a  conspiracy  to  injure  trade 
or  commerce. 

Cited  in  footnote  to  Scott  v.  Wiswall,  42  L.  R.  A.  85,  which  holds  con- 
tracts with  tugs  severally  for  towage  not  invalidated  by  illegal  combination 
between  owners  to  restain  trade. 

Cited  in  note  (12  L.  R.  A.  754)  on  restraining  monopoly  as  public  nuisance. 
Corporate  a  Met*. 

Cited  in  Harrigan  v.  Gilchrist,  121  Wis.  238,  99  X.  W.  909,  holding  that  prop- 
erty of  corporation  obtained  by  purchasers  in  fraud  of  creditors  and  stockholders 
though  gone  beyond  control  of  corporation  itself  may  still  be  subjected  to 
claims  of  stockholders  and  creditors  by  creditors  action  for  the  property  in  effect 
being  held  in  trust  for  benefit  of  plaintiffs. 

7  L.  R.  A.  48,  GRIGGS  v.  STONE,  51  N.  J.  L.  549,  18  Atl.  1094. 
Extent  of  implied  warranty. 

Approved  in  Troy  Laundry  Co.  v.  Henry,  23  Or.  236,  31  Pac.  484,  holding  im- 
plied warranty  of  pulley  on  line  shaft  does  not  extend  to  machine  to  which  it 
communicates  power. 

7  L.  R.  A.  50,  STATE  v.  TUTTY,  41  Fed.  753. 
Validity   of  foreign   marriage* 

Cited  in  Jackson  v.  Jackson,  82  Md.  30,  34  L.  R.  A.  775,  33  Atl.  317,  holding 
Pennsylvania  marriage  based  on  general  reputation  good  in  absence  of  statute 
declaring  such  marriages  void;  State  v.  Fenn,  47  Wash.  564,  17  L.R.A.  ( X.S. ) 
803,  92  Pac.  417,  holding  a  subsequent  marriage  valid  where  contracted  in  good 
faith  in  a  state  of  residence  other  than  that  in  which  a  divorce  had  been  obtained 
from  a  former  marriage  by  one  of  the  parties,  and  entered  into  within  the  time 
limit  prohibited  by  the  decree  of  divorce;  Lanliam  v.  Lanham,  136  Wis.  368,  17 
L.R.A.iX.S.)  804,  128  Am.  St.  Rep.  1085,  117  X.  W.  787,  holding  remarriage  of 
divorcee  within  time  prohibited  in  state  of  divorce,  by  going  without  the  state  for 
performance  of  the  ceremony,  void  in  the  courts  of  such  state. 

Cited  in  footnotes  to  Re  Stull,  39  L.  R.  A.  539,  which  holds  invalid,  marriage 
between  man  and  paramour  in  other  state  to  avoid  laws  of  domicil;  Xorman  v. 
Norman,  42  L.  R.  A.  343,  which  holds  marriage  on  high  seas  by  parties  leaving 
land  to  evade  laws  of  residence  invalid ;  Jackson  v.  Jackson,  34  L.  R.  A.  773, 
\vhich  sustains  marriage  valid  in  state  where  it  was  contracted. 

Cited  in  notes   (60  Am.  St.  Rep.  941,  946)   on  validity  of  foreign  marriage  in 
violation  of  laws  of  place  where  parties  reside. 
Conflict   of    !:i  v,  -. 

Cited  in  Sturgis  v.  Sturgis,  51  Or.  16,  15  L.R.A.(X.S-)  1037,  131  Am.  St.  Rep. 
724,  93  Pac.  696,  on  the  exceptions  to  the  general  territorial  recognition  of  a 
marriage  valid  where  entered  into. 


7  L.R.A.  50]  L.  R.  A.  CASES  AS  AUTHORITIES.  1224 

Cited  in  notes   (57  L.R.A.  368)  on  conflict  of  laws  as  to  marriages  as  to  mem- 
bers of  different  races;    (5  Eng.  llul.  Cas.  829,  830)   on  law  governing  validity  of 
marriage. 
Removal   of   cause. 

Cited  in  note   (53  L.  R.  A.  573)   on  removal  to  protect  Federal  right. 
Legislative  power  to  forbid  marriages. 

Cited  in  note    (2  L.R.A.  (X.S.)    534)    on  legislative  power  to  forbid  marriage. 

7  L.  R.  A.  55,  LAWTON  v.  COMER,  40  Fed.  480. 
Aavigability. 

Cited  in  Mills  v.  United  States,  12  L.  R.  A.  680,  46  Fed.  745,  to  point  that  the 
Savannah  is  a  navigable  river. 

Cited  in  notes    (7  L.  R.  A.  673)    on  what  are  navigable  rivers;    (42  L.  R.  A- 
325)  on  navigable  waters;    (48  L.  ed.  U.  S.  74)   on  what  are  navigable  waters  of 
the  United  States. 
Limitation  of  liability. 

Cited  in  notes   (6  L.  R.  A.  850)   on  limiting  liability  of  carrier;    (10  L.  R.  A. 
420)    on  contractual  limitation  of  carrier's  liability. 
Congressional   regulation   of   inter-state   commerce. 

Cited  in  Snead  v.  Central  R.  Co.  151  Fed.  616,  holding  employees  of  persons  or 
corporations  engaged  in  interstate  commerce  such  as  those  of  an  interstate  rail- 
road company  are  instrumentalities  of  commerce  and  subject  to  congressional 
control. 

7  L.  R.  A.  67,  GARDNER  v.  TERRY,  99  Mo.  523,  12  S.  W.  888. 
Injunction   to   prevent   cloud   on   title. 

Cited  in  Verclin  v.  St.  Louis,  131  Mo.  80.  33  S.  W.  480,  holding  equity  will 
enjoin  or  cancel  void  paving  tax  bills  casting  cloud  on  title;  Clifton  v.  Anderson, 
40  Mo.  App.  623,  holding  chancery  may  prevent  sale  under  invalid  decree  which 
would  cast  cloud  on  title  to  real  estate;  Skinker  v.  Heman,  64  Mo.  App.  448, 
holding  equity  will  restrain  issuance  of  invalid  special  tax  bill  Avhich  would  cast 
a  cloud  on  title;  Sneathen  v.  Sneathen,  104  Mo.  207,  24  Am.  St.  Rep.  326,  16 
S.  W.  497,  holding  equitable  jurisdiction  to  remove  cloud  not  only  remedial  but 
preventive;  Bonsor  v.  Madison  County,  204  Mo.  99,  102  S.  W.  494,  holding  owner 
in  fee  of  a  portion  of  a  section  of  state  school  land  may  enjoin  a  sale  thereof  by 
sheriff  as  state  school  land  to  protect  his  title  from  a  cloud  by  such  sale. 

Cited  in  note    (6  L.R.A.  (N.S.)    511)    on  right  to  enjoin  sale  under  power  in 
barred  mortgage. 
Adverse  possession. 

Cited  in  McRee  v.  Gardner,  131  Mo.  606,  33  S.  W.  166,  holding  title  through 
adverse  possession  sufficient  to  authorize  suit  to  remove  cloud  from  title;  Corn- 
stock  v.  Eastwood,  108  Mo.  47,  18  S.  W.  39,  holding  adverse  possession  for  two 
years  of  military  bounty  land  vests  title  in  occupant  who  may  maintain  eject- 
ment. 

Distinguished  in  De  Bernardi  v.  McElroy,  110  Mo.  659,  19  S.  W.  626,  holding 
intent  to  claim  entire  title  to  land  necessary  to  put  statute  of  limitations  in 
operation. 
As  between   mortgagee  and  mortgagor. 

Cited  in  St.  Louis  v.  Priest,  103  Mo.  655,  15  S.  W.  988,  holding  foreclosure 
not  barred  by  statute  of  limitations  unless  there  has  been  adverse  possession  of 
mortgaged  property  for  requisite  period;  Combs  v.  Goldsworthy,  109  Mo.  160, 
18  S.  W.  1130,  holding  although  notes  given  to  secure  mortgage  are  barred  by/ 


1225  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  69 

statute,  there  must  be  adverse  possession  of  mortgaged  premises  to  bar  fore- 
closure; Sherwood  v.  Baker,  105  Mo.  477,  24  Am.  St.  Rep.  399,  16  S.  W.  938, 
holding  ten  years'  adverse  possession  by  mortgagor  necessary  to  bar  foreclosure; 
Chouteau  v.  Riddle,  110  Mo.  372,  19  S.  W.  814,  holding  mortgagor  in  possession 
does  not  hold  adversely  to  mortgagee  so  long  as  relation  of  mortgagor  and  mort- 
gagee exists;  Ivy  v.  Yancey,  129  Mo.  507,  31  S.  VV.  937,  holding  grantor  in  trust 
deed  does  not  hold  adversely  to  trustee  unless  by  acts  and  declarations  he  re- 
pudiates deed  of  trust. 
Suit  involving:  title. 

Cited  in  Hanna  v.  South  St.  Joseph  Land  Co.  126  Mo.  10,  28  S.  W.  652,  holding 
suit  to  rescind  contract  to  purchase  land  and  cancel  deed  of  trust  involves  title 
to  real  estate  within  jurisdiction  of  supreme  court;  Bryant  v.  Russell,  127  Mo. 
426,  30  S.  W.  107,  holding  title  involved  within  jurisdiction  of  supreme  court 
where  one  party  claims  by  purchase  at  execution  sale  and  other  claims  right  to 
redeem;  Kleimann  v.  Geiselmann,  45  Mo.  App.  498,  remanded  on  ground  that 
suit  to  declare  deed  of  trust  a  subsisting  lien  and  for  its  foreclosure  does  not 
involve  title. 
Statute  of  limitations. 

Cited  in  Menzel  v.  Hinton,  132  X.  C.  665,  95  Am.  St.  Rep.  647,  44  S.  E.  385, 
"holding  power  of  sale  in  mortgage  not  affected  by  statutory  bar  against  fore- 
closure. 

7  L.  R.  A.   69,   COUDERT  v.  COHX,   118  N.  Y.  309,   16  Am.   St.  Rep.  761,  23 

X.  E.  298. 
Tenancy  nmler  void  lease. 

Cited  in  Phelan  v.  Anderson,  118  Cal.  506,  50  Pac.  685,  holding  tenancy  from 
year  to  year  implied  where  entry  made  on  agricultural  land  under  void  parol 
lease  providing  for  annual  rent;  Gilfoyle  v.  Cahill,  18  Misc.  70,  41  X.  Y.  Supp. 
29,  holding  tenancy  from  month  to  month  implied  from  possession  under  void 
oral  lease  for  long  term,  rental  payable  monthly;  Talamo  v.  Spitzmiller,  120 
N.  Y.  42,  8  L.  R,  A.  223,  17  Am.  St.  Rep.  607,  23  X.  E.  980,  holding  party  in 
possession  making  no  payments  or  promise  to  pay  under  void  lease  liable  only  for 
use  and  occupation ;  Unglish  v.  Marvin,  128  N.  Y.  385.  23  X.  E.  634,  holding  party 
in  possession  under  void  agreement  for  joint  occupancy  with  owner  for  term  of 
years,  not  entitled  to  damages  for  dispossession;  Adams  v.  Cohoes,  127  N.  Y.  181, 
28  N.  E.  25,  holding  tenant  from  year  to  year  under  void  lease  under  no  duty 
to  give  notice  of  termination  of  tenancy;  Butts  v.  Fox,  96  Mo.  App.  441,  70 
'S.  W.  515,  -holding  tenant  under  lease  void  under  statute  of  frauds  not  entitled 
-to  notice  to  quit  at  end  of  term ;  Arbenz  v.  Exley,  52  W.  Va.  479,  61  L.  R.  A.  958, 
44  S.  E.  149.  holding  written  lease  void  under  statute,  admissible  in  evidence  to 
show  a  tenancy,  its  terms,  and  conditions;  Falck  v.  Barlow,  110  Md.  164,  72  Atl. 
678,  17  A.  &  E.  Ann.  Cas.  538,  holding  tenant  to  have  an  estate  from  year  to 
year  where  her  husband,  now  deceased,  entered  under  a  ten  year  lease  void  under 
statute"  of  frauds  the  lessor  accepting  a  yearly  rent  for  seven  years  thereunder; 
Julian  v.  Berardini,  49  Misc.  120,  96  X.  Y.  Supp.  1064,  holding  the  tenancy  of 
one  entering  under  a  void  lease  for  five  years  rent  payable  monthly,  is  from 
month  to  month:  Ray  v.  Blackman,  120  Mo.  App.  502,  97  S.  W.  212,  holding  pro- 
vision in  a  void  parol  lease  for  term  longer  than  a  year  where  lessee  enters  and 
•continues  in  possession,  as  to  repairs  reservation  of  rent,  and  termination  of  the 
tenancy  are  valid  and  binding  on  the  parties;  Watkins  v.  Balch,  41  Wash.  312, 
.3  L.R.A.  (N.S.)  854,  83  Pac.  321,  holding  that  where  one  enters  under  a  void  oral 


7  L.R.A.  69]  L.  R.  A.  CASES  AS  AUTHORITIES.  1226 

lease  he  is  merely  a  tenant  from  period  to  period  as  designated  by  the  provision 
for  payment  of  rent. 

Cited  in  note    (26  L.  R.  A.  800)    on  compensation  for  use  of  premises  where 
lease  invalid  under  statute  of  frauds. 
Tenancy   from    year   to   year. 

Cited  in  Johnson  v.  Doll,  11  Misc.. 347,  32  N.  Y.  Supp.  132,  and  Garrick  v. 
Menut,  41  N.  Y.  S.  R.  470,  17  X.  Y.  Supp.  455,  holding  tenant  holding  over  after 
expiration  of  year's  lease,  liable  for  full  rent  for  ensuing  year;  Kernochan  v. 
Wilkens,  3  App.  Div.  600,  38  N.  Y.  Supp.  236,  holding  tenant  holding  over  after 
expiration  of  year  under  void  lease  for  longer  term,  liable  for  following  year's 
rent. 

Cited  in  note  (15  Eng.  Rul.  Cas.  598)  on  person  entering  into  possession  under 
lease  within  statute  of  frauds  as  a  tenant  from  year  to  year. 
Rigrbts  and  obligations  of  tenant   holding?  over. 

Cited  in  note  (15  Eng.  Rul.  Cas.  594)  on  rights  and  obligations  of  tenant  hold- 
ing over. 

T  L.  R.  A.  70,  CHURCH  OF  ST.  MONICA  v.  NEW  YORK,  119  N.  Y.  91,  23 

N.  E.  294. 
Exemption    from    taxation. 

Cited  in  People  ex  rel.  Delta  Kappa  Epsilon  Soc.  v.  Lawler,  74  App.  Div.  557. 
77  N.  Y.  Supp.  840,  holding  premises  occupied  by  college  society  as  boarding 
place,  with  exception  of  society  room,  not  exempt  from  taxation. 

Cited  in  footnotes  to  Ramsey  County  v.  Macalaster  College,  18  L.  R.  A.  278, 
which  holds  professors'  residences  on  college  grounds  exempt  but  not  unused  land 
in  college  tract;  State,  Singer  Mfg.  Co.,  Prosecutor,  v.  Heppenheimer,  32  L.  R.  A. 
643,  which  holds  company  exempt  from  taxation  under  exemption  of  its  shares. 

Cited  in  note  (12  L.  R.  A.  852)  exemption  from  taxation  does  not  exempt  from 
special  assessment. 

Distinguished  in  Shaarai  Berocho  v.  New  York,  28  Jones  &  S.  488,  46  N.  Y. 
S.  R.  235,  18  N.  Y.  Supp.  792,  on  ground  that  religious  society  was  incorporated 
and  holding  its  exemption  not  affected  by  fact  that  janitor  resided  on  premises. 
Statutory  construction. 

Cited  in  People  ex  rel.  Young  Men's  Asso.  v.  Sayles,  32  App.  Div.  201,  53  X.  Y. 
Supp.  67;  People  ex  rel.  Salvation  Army  v.  Feitner,  33  Misc.  714,  G8  X.  Y.  Supp. 
338,  to  point  thaj;  statutes  exempting  religious  and  charitable  corporations  from 
general  taxation  must  be  strictly  construed. 

7  L.  R.  A.  72,  KRUEGER  v.  KRUEGER,  76  Tex.  178,  12  S.  W.  1004. 
Acknowledgment  to  take   debt   ont   of  statute   of  limitations. 

Cited  in  Henry  v.  Roe,  83  Tex.  452,  18  S.  W.  806,  holding  letter  unqualifiedly 
acknowledging  existence  of  and  promising  to  pay  debt  removes  bar  of  limitations; 
Moline  Plow  Co.  v.  Webb,  141  U.  S.  627,  35  L.  ed.  882,  12  Sup.  Ct.  Rep.  100, 
raising,  without  deciding,  question  whether  request  to  stay  suit  constitutes  new 
promise;  Liberman  v.  Gurensky,  27  Wash.  420,  67  Pac.  998,  holding  promise  to 
pay  at  indefinite  future  time  does  not  revive  barred  debt;  Slaughter's  Succession, 
108  La.  494,  58  L.R.A.  409,  footnote,  p.  408,  32  So.  379,  holding  bar  of  limitation 
not  removed  by  expression  of  ability  to  pay  debt,  followed  by  part  payment. 

Cited  in  footnote  to  Kleis  v.  McGrath,  69  L.R.A.  260,  which  holds  barred  note 
not  revived  by  giving  smaller  note  for  interest  due  without  referring  to  earlier 
note. 

Cited  in  notes  (24  Am.  St.  Rep.  496)   as  to  what  acknowledgment  will  remove 


1227  L,  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  73 

bar  of  statute  of  limitations;   (16  Eng.  Rul.  Cas.  176)  on  acknowledgment  or  part 
payment  taking  debt  out  of  statute  of  limitations. 

7  L.  R.  A.  73,  BURTON  v.  TUITE,  78  Mich.  363,  44  N.  W.  282. 
What  are   public  records. 

Cited  in  Aitcheson  v.  Huebner,  90  Mich.  645,  51  N.  W.  634,  holding  state  tax 
land  book  public  record;  Burton  v.  Tuite,  80  Mich.  219,  7  L.  R.  A.  825,  45  N.  W. 
88,  holding  city  treasurer's  stub  receipt  books,  from  which  data  are  transferred  to 
record  books,  public  records;  Tryon  v.  Pingree,  112  Mich.  347,  37  L.  R.  A.  226, 
67  Am.  St.  Rep.  398,  70  X.  W.  905.  raising,  without  deciding,  question  whether 
books  of  city  fire  commission  public  records;  People  v.  Tomalty,  14  Cal.  App.  231, 
111  Pac.  513,  to  the  point  that  tax  sales  books,  kept  by  receiver  of  taxes  are  pub- 
lic records,  although  there  was  no  statute  requiring  such  books  to  be  kept; 
Kalamazoo  Gazette  Co.  v.  Kalamazoo  County  Clerk,  148  Mich.  461,  111  N.  W. 
1070,  holding  marriage  licenses  and  returns  provided  for  by  statute,  are  public 
records  open  to  inspection  for  all  lawful  purposes:  Clement  v.  Graham,  78  Vt. 
315,  63  Atl.  146,  holding  bills  against  the  state  and  vouchers  accompanying  them 
when  filed  in  auditor's  office  are  public  records  open  to  inspection  by  public. 

Distinguished   in  Marriage  License  Docket,  4  Pa.  Dist.  R.  284,  holding  mar- 
riage license  docket  not  public  record. 
|{  iuiii    to   examine   public   records. 

Cited  in  Barber  v.  West  Jersey  Title  &  Guaranty  Co.  53  N.  J.  Eq.  160,  32  Atl. 
222,  holding  abstract  maker  has  right  of  access  to  public  records  but  not  to 
make  copies  for  purpose  of  setting  up  rival  office;  Day  v.  Button,  96  Mich.  602, 
56  N.  W.  3.  holding  abstract  maker  entitled  to  reasonable  access  to  public  records; 
State  ex  rel.  Colscott  v.  King,  154  Ind.  628,  57  N.  E.  535,  holding  citizen  and  tax- 
payer has  right  to  examine  county  auditor's  records;  Marriage  License  Docket, 

4  Pa.  Dist.  R.  166,  holding  citizen  may  inspect  marriage  license  docket  without 
paying  fee;   Re  Chambers,  44  Fed.  792.  holding  records  of  Federal  courts  open 
to  public  examination  free  of  charge;   State  ex  rel.  Davis  v.  McMillan,  49  Fla. 
249.  38  So.  666,  6  A.  &  E.  Ann.  Cas.  537,  holding  the  public  and  persons  com- 
piling abstract  to  have  right  to  access  to  public  records  in  clerks  office  without 
payment  of  fee  to  clerk  unless  he  assist  in  some  special  way  in  the  pursuance  of 
the  records;  State  ex  rel.  Nevada  Title  Guaranty  &  T.  Co.  v.  Grimes,  29  Nev.  60, 

5  L.R.A.  (N.S.)    551,  124  Am.  St.  Rep.  883,  84  Pac.  1061,  holding  abstract  com- 
panies not  entitled  to  the  right  of  access  to  public  records  for  purpose  of  compil- 
ing a  complete   local  abstract  where  they  have  no  present  or  current  interest; 
State  ex  rel.  Nevada  Title  Guaranty  &  T.  Co.  v.  Grimes.  29  Nev.  62,  5  L.R.A. 
(N.S.)  545,  124  Am.  St.  Rep.  883,  84  Pac.  1061,  on  right  of  county  clerk  to  charge 
fees  where  he  does  not  assist  in  examination  of  public  records;  Com.  v.  Weaver,  14 
Pa.  Dist.  R.  306,  holding  the  right  of  a  citizen  to  inspect  liquor  license  petition 
in  his  community  without  payment  of  fee  to  clerk  may  be  obtained  by  mandamus. 

Cited  in  notes  (10  L.  R.  A.  212;  27  L.  R.  A.  82)  on  common  right  to  inspect 
public  records;  (64  L.  R.  A.  425.  426)  on  right  of  taxpayer  to  inspect  books  of 
municipality;  (124  Am.  St.  Rep.  914)  on  right  of  abstractors  to  have  access  to 
public  records;  (47  L.  ed.  U.  S.  741)  on  right  of  access  to  public  records  for 
private  abstract  purposes. 

Distinguished  in  Burton  v.  Reynolds,  110  Mich.  355,  68  N.  W.  217,  holding 
examination  by  abstracter  of  files  in  action  relating  to  land  not  compellable 
where  not  shown  necessary  to  employee's  interests;  Belt  v.  Prince  George's  County 
Abstract  Co.  73  Md.  294,  10  L.  R.  A.  214,  20  Atl.  982,  holding  title  abstract 
company  cannot  copy  public  records  without  paying  fees. 


7  T..-R..A.  73]  L.  B.  A.         -    -    AS  AUTHORITIES.  122  > 


Whc-a  •••»*«•••»  lie*. 

Cited  in,  note  (39  L.E.A.iX.S.)  812)  on  mandamus  to  compel  continuous  acts 
or  control  general  course  of  conduct. 

7  K  R-  A.  77,  PADUCAH  LUMBER  CO.  v.  PADUCAH  WATER  SUPPLY.  OO. 

89  Ky.  340.  25  Am.  St.  Rep.  536.  12  S.  W.  554,  13  S.  W.  249. 
Uahilitr    of    «cmter   coMpuie*    (or    failure-    of    Are    protection. 

Followed  in  Gorrell  T.  Greensboro  Water  Supply  Co.  124  X.  C.  334.  46  L.  R.  A. 
516.  70  Am.  St.  Rep.  598..  32  S.  E.  720;  Planters'  Oil  Mill  r.  Monroe  Waterworks 
&  Light  Co.  52  La.  Ann.  1251,  27  So.  684;  Graves  County  Water  Co.  v.  Ligon,  112 
Ky.  780.  66  S.  W.  725,  —  holding  water  company  liable  to  owner  for  burning  of 
property  through  failure  of  water  supply;  Hieronynues  Bros.  v.  Bienville  Water 
Supply  Co.  131  *1«  454,  31  So.  31,  assuming  as  unquestioned  in  case  that  damage 
by  fire  may  be  shown  to  hare  prosimately  resulted  from  breach  of  contract  to 
supply  water. 

Approved  in  Springfield  F.  A  M.  Ins.  Co.  T.  Graves  County  Water  &  Light  Co. 
120  Ky.  43,  85  S.  W.  205,  holding  water  company  liable  to  private  citizen  for 
loss  occasioned  by  failure  of  fire  protection- 

Cited  in  Xjehau*  Bros.  Co.  v.  Contra  Costa,  Water  Co.  159  Cal.  315,  36  L.R.A. 
*  XjS.jl  1052,  113  Pac.  375,  holding  that  no  implied  contract  for  protection  from 
fire  is  to  be  inferred  from  ordinary  relation  between  public  distributor  of  water 
and  consumer;  Mngge  v.  Tampa  Waterworks  Co.  52  Fla.  379,  6  LJLA.(X.S.  i  1177, 
42  So.  81,  holding  water  company  liable  under  tort  action,  to  tax  payers  for 
failure  to  provide  fire  protection  as  per  contract  with  city  giving  it  franchises  and 
privileges;  Woodbury  T.  Tampa  Waterworks  Co.  57  Fla.  255,  21  L.R.A.  \  - 
1039,  49  So.  556,  holding  water  company  liable  to  private  citizens  for  failure  of 
fire  protection  causing  loss;  Lexington  Hydraulic  &  Mfg.  Co.  v.  Oots.  119  Ky.  606, 
84  S.  W.  774,  holding  water  company  liable  for  failure  of  fire  protection  where 
city  has  granted  right  to  lay  mains  and  has  contracted  for  certain  pressure,  the 
failure  of  which  shall  be  ground  for  forfeiture  of  franchise  ;  Kenton  Water  Co.  v. 
Glenn,  141  Ky.  531,  133  S.  W.  573,  holding  that  inhabitant  who  has  suffered  loss 
by  breach  of  water  company's  contract  may  sue  such  company  where  it  has  con- 
tracted with  town  to  supply  water  to  protect  inhabitants  against  fire;  Mil  ford 
v.  Bangor  R.  t  Electric  Co.  104  Me.  246,  71  AtL  759,  holding  water  company 
liable  to  city  for  failure  to  supply  fire  protection  under  contract  expressly  calling 
for  the  provision  of  apparatus  the  lack  of  which  caused  the  loss;  Mil  ford  v. 
Bangor  R.  &  Electric  Co.  106  Me.  324,  30  LJUL(XJSL)  531,  76  Atl.  696,  20  Ann. 
Cas.  622,  holding  that  water  company  contracting  to  furnish  water  for  fire  pro- 
tection is  not  liable  for  municipal  property  burned,  because  in  adequate  supply, 
in  absence  of  express  undertaking  to  furnish  protection  to  such  property;  Ger- 
man Alliance  Ins.  Co.  v.  Home  Water  Supply  Co.  —  L.R.A.(X.S.)  —  ,  99  C.  C.  A. 
258,  174  Fed.  766,  on  recovery  by  private  citizen  for  loss  occasioned  by  water 
companies  failure  to  provide  fire  protection;  Lntz  v.  Tahleqnah  Water  Co.  29 
Okla.  172,  36  L.R.A.(X.SJ  570,  118  Pac.  128,  holding  that  taxpayer  cannot  main- 
tain action  against  water  company  to  recover  damage  by  fire  sustained  by  him 
because  of  failure  of  company  to  perform  contract  with  municipality  to  furnish 
•water  to  extinguish  fire. 

Cited  in  footnotes  to  Eaton  T.  Fairbury  Waterworks  Co.  21  L.  R.  A.  653,  which 
denies  water  company's  liability  for  destruction  of  property  by  failure  of  water 
supply;  Mott  v.  Cherryvale  Water  a.  Mfg.  Co.  15  L.  R.  A.  375,  which  holds  water 
company  not  liable  to  citizen  for  burning  of  property  through  failure  to  supply 
water. 

Cited  in  notes   (23  LR.A.  150)   on  liability  for  loss  by  fire  due  to  lack  of 


:::.-  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  T.,«  4  37 

adequate  water  supply:  OS  Am.  St.  Rep.  380;  81  Am.  St.  Rep.  483;  21  L.R.  4. 
fKJSL)  1033)  OB  water  company  $  liability  for  prwfwiy  owner*  loss  by  five 
from  breach  of  contract  with  municipality  ;  ((6  Bag.  RuL  Cas.  624|  on  damages 
recoverable  for  breach  of  contract  to  furnish  water  for  fire  protection. 

DiAngmshed  m  Boston  Safe  Deposit  &  T.  Co,  T.  Salem  Water  COL  94  F«L  240; 
Stone  T.  rnkmtora  Water  Co.  16  Pa.  COL  OL  330,  13  Lane.  L.  Rev.  156,  4  Pa. 
DistL  R-  432;  House  T.  Houston  Waterworks  Co.  88  Tex.  239,  28  L,  R.  A.  333, 
31  &  W.  179;  Fit**  T.  Seymour  Water  Co.  139  lad.  220,  47  Am.  St.  Rep.  2% 
37  X.  K  982;  Eaton  T.  Fairbnry  Waterworks  Co.  37  Xeb.  552.  21  L.  R.  A.  655,  4O 
Am.  St.  Rep.  51ft.  56  X.  W.  201*;  Bosh  T.  Artesiam  Hot  &  Cold  Water  Co.  4  Idaho, 
621.  95  Am.  St.  Rep.  161,  43  Fae.  69,  —  holding  property  owner  cannot  recover 
froam  water  company  for  failure  to  furnish  fire  protectiaB  stipulated  in  contract. 
or  franchise:  Oaah  City  T.  Oaah  Water  &  Inprav.  COL  142  CaL  179,  64  L.  R. 
A.  235,  75  Pae.  173.  hcMra^r  water  company  mot  liable  to  town  for  loss  by  fire 
through  failure  of  water  supply-.  HOB*  T.  Presipje  Isle  Water  Co.  104  Me.  231, 
21  L.RJMXJSL))  1028,  71  AtL  769;  Lowejoy  T.  BeaaoBer  Waterworks  Co.  146 
Ala.  380,  6  LJLA.vXJS.it  431.  41  So.  76.  9  A.  &  EL  Ann.  Cas.  1068,—  holda^ 


resident  of  city  cannot  sue  waterworks  coampany  for  fire  loss  canoed  by  faUme  to 
supply  water  as  per  contract  with  the  dry;  Hunt  Bros.  Co.  T.  San  Loreum  Water 
Co.  150  CaL  54.  7  LR-A.fX.J5.)  915,  87  Par.  1093,  holding  recovery  for  damages 
from  lose  caused  by  breach  of  contract  to  furnish  water  and  fire  protection  nay 
not  be  had  where  the  system  called  for  in  contract  has  not  been  installed.,  the 
contract  not  stating  time  for  installation. 

Disapproved  in  Howsmon  T.  Trenton  Water  Co.  119  Mo.  315,  23  L.  R.  A.  152, 
41  Am.  St.  Rep,  654,  24  S.  W.  784,  hoMing  atom  cannot  recowr  on  water  com- 
panT"s  agreement  with  town  to  be  liable  for  ffaHhai*  to  supply  <a»HK«  •*•<(  fire  pro- 
tection; Britton  T.  Green  Bay  A  F.  H.  Waterworks  Co.  81  WKL  58,  2S»  Ana.  St. 
Rep.  856,  51  X.  W.  84,  and  Xkhol  T.  HunttingtoB  Water  Co.  53  W.  Ta.  35£,  44 
S.  C,  290,  holding  failure  to  supply  sufficient  water  to  extinguish  fires  does  nnt 
render  company  liable  to  individuals::  HoUoway  r.  Marau  Gaslight  A  Water  Ca. 
132  Ga.  395.  64  S.  EL  330;  Peek  T.  Sterling  Water  Co.  US  HL  App.  536;  ADen 
&  C.  Mfg.  Co.  T.  ShreTeport  Waterworks  Co.  113  La.  1112,  68  T^R^A,  660,  104 
Am.  St.  Rep.  525.  37  So.  980,  2  A.  Jfc  EL  Ann.  Cas.  471;  Metropolitan  Trust  Co.  T. 
Topeka  Water  Co.  132  Fed.  7O4.—  hohling  breach  of  contract  with  city  not  action- 
able by  citizen:  Greenville  Water  Co.  T.  Beekham,  55  Tex.  Civ.  App.  92,  118  SL 
W.  889,  holding  that  property  owner  cannot  hold  water  company  fiahfe  for  loss 
by  fire  because  of  breach  of  its  contract  with  city. 

RiSTht  *f  t  kird  n««»»»  t*  «we  ••   **mtr*rt  ••<*   CM-  Bte  VnM-Hf  .  " 

Cited  in  Hall  T.  Alford,  105  Ky.  666.  49  S.  W.  444,  holding  action  maintainable 
by  subcontractor  upon  contract  of  contractor  for  his  benefit  with  owner;  Lons- 
Tille  &  X.  R.  Co.  T,  Schmidt,  112  Ky.  723,  66  S.  W.  629,  holding  le«ee  fiable 
to  mortgage  bondholders  for  breach  of  conditions  of  lease  to  return  road  in  good 
repair:  Blakeiey  T.  Adams.  113  Kir.  396,  68  S.  W.  393,  holding  lien  reserved  in 
conveyance  of  and  for  benefit,  of  surety  of  grantee,  enforceable  by  such  surety; 
Peters  v.  Jackson,  50  W.  Va.  650,  57  L  R.  A.  431.  88  Am,  St.  Rep.  909,  41  S.  EL 
190,  holding  druggist  liable  to  third  person  for  injuries  resulting  from  druggistls 
mistake  in  selling  poisonous  drug  for  harmless  medicine;  Albin  Co.  v.  Com. 
I±*  Ky.  301,  1O8  S.  W.  299.  holding  state  may  compel  payment  to  it  of  money 
paid  a  bonding  company  by  bonded  person,  to  indemnify  company  against  a  debt 
it  has  guaranteed  to  state:  Cumberland  Teleph.  ft  Tdeg.  Co.  T.  Cartwr^ht 
Teleph.  Co.  128  Ky.  405,  108  S.  W.  875,  holding  owner  of  private  wire  may  compel 
connection  with  telephone  exchange  under  prariskui  in  frane^tine. 

Cited  in  notes  «  25  L  R.  A.  2«i  )  on  right  of  third  person  to  sue  « 


7  L.R.A.  77]  L.  R.  A.  CASES  AS  AUTHORITIES.  1230 

made  for  his  benefit;  (64  L.  R.  A.  59",  )  on  third  person  for  whose  benefit  contract 
is  made  as  real  party  in  interest  within  the  meaning  of  statutes  defining  the 
party  by  whom  an  action  may  be  brought;  (39  Am.  St.  Rep.  533;  71  Am.  St. 
Rep.  184,  190,  191,  196)  on  right  of  third  person  to  sue  on  contract  made  for  his 
benefit;  (111  Am.  St.  Rep.  705)  on  manufacturer's  liability  to  third  persons. 

Distinguished  in  Mott  v.  Cherryville  Water  &  Mfg.  Co.  48  Kan.  16,  15  L.  R.  A. 
376,  30  Am.  St.  Rep.  267,  28  Pac.  989,  holding  citizen  cannot  maintain  action 
on  water  company's  contract  with  city  to  pay  damages  to  any  citizen  through 
failure  to  supply  fire  protection;  Peters  v.  Johnson,  50  W.  Va.  650,  57  L.  R.  A. 
431,  88  Am.  St.  Rep.  909,  41  S.  E.  190,  holding  only  parties  to  sale  of  medicine 
can  sue  for  damages  for  breach  of  contract. 

Limited  in  Weatherly  v.  Capital  City  Water  Co.  115  Ala.  174,  22  So.  140,  hold- 
ing citizen  cannot  have  receiver  appointed  to  carry  out  corporation's  contract  to 
supply  city  and  its  inhabitants  with  water. 

Criticized  in  Lancaster  use  of  Penn  Iron  Co.  v.  Frescoln,  16  Lane.  L.  Rev.  76, 
22  Pa.  Co.  Ct.  229,  holding  material  men  may  recover  on  contractor's  bond  to 
city  to  pay  for  materials. 
Measure  of  damages  for  breach   of  contract. 

Cited  in  note  (29  Am.  St.  Rep.  729)  on  measure  of  damages  for  breach  of  con- 
tracts. 

7  L.  R.  A.  81,  KENTON  INS.  CO.  v.  WIGGINTON,  89  Ky.  330,  12  S.  W.  668. 
Insurance Proof   of   loss. 

Cited  in  Caledonian  Ins.  Co.  v.  Cooke,  101  Ky.  416,  41  S.  W.  279,  holding  proof 
of  loss  waived  by  insurance  company's  admission  of  some  liability,  and  arbitration 
as  to  amount  of  loss;  German- American  Ins.  Co.  v.  Xorris,  100  Ky.  36,  66  Am. 
St.  Rep.  324,  37  S.  W.  267,  holding  insured  not  required  to  furnish  proofs  of  loss 
where  general  agent  denies  liability. 

Cited  in  notes   (8  L.  R.  A.  78)   on  waiver  of  proofs  of  loss;    (11  L.  R.  A.  599) 
on  waiver  of  conditions  by  refusal  to  pay  loss;    (18  L.  R.  A.  85)   on  forfeiture  of 
insurance  by  failure  to  furnish  proofs  of  loss  within  stipulated  time;    (8  L.  R.  A. 
76)   on  objections  to  statement  of  loss. 
What    are    material    misrepresentations. 

Cited  in  Carrollton  Furniture  Mfg.  Co.  v.  American  Credit  Indemnity  Co.  52 
C.  C.  A.  673,  115  Fed.  79,  holding  misstatement  of  past  losses  in  application  for 
insurance  against  losses  on  sales,  material  misrepresentations  avoiding  policy: 
Lancashire  Ins.  Co.  v.  Monroe,  101  Ky.  20,  39  S.  W.  434,  holding  existence  of 
mortgage  does  not  contradict  representation  of  sole  and  unconditional  owner- 
ship. 

Cited  in  notes   (38  L.R.A.  (N.S.)    429)   on  want  of  title  to  land  where  insured 
is  sole  and  absolute  owner  of  building;    (13  Eng.  Rul.  Cas.  334)   on  necessity  of 
specifying  in  policy  the  interest  of  the  assured. 
Parol   evidence    of   mistake. 

Cited  in  note   (6  L.  R.  A.  838)   on  parol  evidence  in  case  of  mistake. 

7  L.  R.  A.  84,  MERWIN  v.  AUSTIN.  58  Conn.  22,  18  Atl.  1029. 
Effect  of  insolvency  on  right  of  set-off. 

Cited  in  Carroll  v.  Weaver,  65  Conn.  81,  31  Atl.  489,  holding  ship  owner's  pay- 
ment of  ship  builder's  order  accepted  before  insolvency  of  builder,  properly  set 
off  against  debt  to  builder;  St.  Paul  &  M.  Trust  Co.  v.  Leek,  57  Minn.  92,  47  Am. 
St.  Rep.  576,  58  N.  W.  826,  holding  debtor's  equitable  set-off  unaffected  by  assign- 
ment; Salladin  v.  Mitchell,  42  Neb.  863,  61  N.  W.  127,  holding  right  of  set-off 


1231  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  87 

unaffected  by  assignment  in  insolvency;  Momsen  v.  Xoyes,  105  Wis.  567,  81 
X.  \Y.  860,  holding  liability  as  surety  may  be  set  off  against  assignor's  claim 
against  surety;  Craighead  v.  Swartz,  219  Pa.  153,  67  Atl.  1003,  holding  surety 
in  the  insolvency  of  principal  may  retain  money  of  principal  in  his  hands  to  the 
amount  of  secured  indebtedness. 

Cited  in  notes  (9  L.  R.  A.  108)  on  set-off  of  unliquidated  cross  demand;  (13 
L.  R.  A.  233)  on  surety's  right  to  set  off  joint  indebtedness  where  insolvency 
exists;  (17  L.  R.  A.  461)  on  effect  of  immaturity  of  claim  at  time  insolvency 
occurs  on  right  of  set-off;  (47  Am.  St.  Rep.  143)  on  set-off  by  or  against  bank 
receiver;  (47  Am.  St.  Rep.  583,  593)  on  equitable  set-off  after  insolvency. 

Distinguished  and  disapproved  in  Huse  v.  Ames,   104  Mo.  99,   15  S.   W.  965, 
holding  surety  cannot  set  off  payments  after  assignment,  although  on  debts  past 
due  at  time  of  assignment. 
K  IK  lit    of    insolvent'*    representative. 

Cited  in  Carroll  v.  Weaver,  65  Conn.  81,  31  Atl.  489,  holding  as  general  rule 
trustee  takes  insolvent  estate  with  its  burdens  and  equities;  Re  Wilcox  &  H.  Go. 
70  Conn.  231,  39  Atl.  163,  holding  receiver  of  insolvent  may  also  represent  cred- 
itors; Woodbury's  Appeal,  70  Conn.  457,  39  Atl.  791,  holding  trustee  in  in- 
solvency to  a  limited  extent,  representative  of  debtor  and  creditors;  Xewton  Sav. 
Bank  v.  Lawrence,  71  Conn.  368,  42  Atl.  225  (dissenting  opinion),  majority  hold- 
ing insolvency  trustee  takes  insolvent's  land  unaffected  by  unrecorded  mort- 
gage; Central  Trust  Co.  v.  Worcester  Cycle  Mfg.  Co.  128  Fed.  490,  holding  right 
of  attaching  creditor  to  proceeds  of  property  surrendered  to  mortgage  receiver 
under  stipulation  preserving  rights,  superior  to  that  of  subsequent  trustee  in  in- 
solvency. 
H  iiilu  to  contribution. 

Cited  in  notes  (9  L.R.A.  227)  on  subrogation  of  surety  on  payment  of  claim; 
(68  L.R.A.  514)  on  extinction  of  judgments  against  principals  by  sureties'  pay- 
ment; (12  Eng.  Rul.  Cas.  840)  on  right  of  person  whose  liability  is  ascertained 
to  judgment  for  indemnity  or  contribution. 

7  L.  R.  A.  87,  HODGES  v.  ROWING,  58  Conn.  12,  18  Atl.  979. 
Description   of   property. 

Cited  in  Moayon  v.  Moayon,  1 14  Ky.  873,  60  L.R.A.  423,  102  Am.  St.  Rep.  303, 
72  S.  W.  33,  holding  description  covering  all  grantor's  property  acquired  by  will 
or  otherwise  and  then  owned  by  him,  sufficient  to  uphold  contract  to  convey; 
Howard  v.  Adkins,  167  Ind.  188,  78  X.  E.  665,  holding  parol  evidence  in  connec- 
tion with  surrounding  circumstances  admissible  to  complete  a  contract  governed 
by  statute  of  frauds,  as  to  the  description  of  property;  Bates  v.  Harris,  144 
Ky.  401,  36  L.R.A. (N.S.)  157,  138  S.  W.  276,  holding  that  contract  for  sale  of 
land  describing  property  as  "her  muddy  creek  farm,  embracing  113  acres"  is 
not  void  for  insufficiency  of  description;  Wilcox  v.  Sonka,  137  Mo.  App.  56,  119 
S.  W.  445,  holding  "my  farm  of  160  acres  in  Lynn  county,  Tex."  a  description 
sufficient  to  satisfy  statute  of  frauds. 
Remedy  at  law  as  bar  to  equitable  relief. 

Cited  in  Sabin  v.  Anderson,  31  Or.  495,  49  Pac.  870,  holding  attachment  or 
garnishment  not  adequate  remedy  precluding  bill  in  equity  to  discover  assets 
fraudulently  concealed;  Lockctt  v.  Robinson,  31  Fla.  138,  20  L.  R.  A.  68,  12  So. 
649,  holding  claimant  of  lien  without  adequate  remedy  in  law  to  reach  proceeds 
of  land  sold  under  agreement  with  owner:  Morgan  v.  Eaton,  59  Fla.  565,  138 
Am.  St.  Rep.  167,  52  So.  305,  holding  that  suit  by  vendor  for  specific  perform- 
ance of  land  contract  cannot  be  defeated  because  there  is  remedy  at  law. 


7  L.R.A.  87]  L.  R.  A.  CASES  AS  AUTHORITIES.  1232 

Cited  in  notes    (11   L.  R.  A.   69)    on  jurisdiction  in  equity  where  remedy  at 
law  exists;    (8  L.  R.  A.  626)    on  right  to  specific  performance  where  adequate 
remedy  at  law;   (36  L.  ed.  U.  S.  84)  on  what  remedy  at  law  will  prevent  remedy 
in  equity. 
Specific   performance. 

Cited  in  Andrews  v.  Babcock,  63  Conn.  116,  26-Atl.  715,  holding  vendor  on  same 
footing  with  vendee  as  to  specific  performance  of  contract  for  sale  of  land; 
Freeman  v.  Paulson,  107  Minn.  67,  131  Am.  St.  Rep.  438,  119  N.  W.  651,  holding 
vendor  of  land  under  executory  contract  of  sale  may  have  specific  performance 
against  vendee's  equitable  interest  by  virtue  of  the  executory  contract. 

Cited  in  footnote  to  Atchison,  T.  &  S.  F.  R.  Co.  v.  Chicago  &  W.  I.  R.  Co.  35 
L.  R.  A.  167,  which  refuses  to  require  payment  of  interest  not  provided  for  as 
condition  of  specific  performance  of  contract. 

Cited  in  note   (10  L.  R.  A.  127)   as  to  when  doctrine  of  laches  cannot  be  in- 
voked. 
Remedy  for  breach  of  land   sale   contract. 

Cited  in  Prichard  v.  Mulhall,  127  Iowa,  548,  103  N.  W.  774,  4  A.  &  E.  Ann. 
Cas.  789,  holding  tender  of  deed  by  vendor  not  to  pass  title  and  that  his  remedy 
for  breach  of  executory  contract  for  sale  of  land  is  not  an  action  for  contract 
price  but  specific  performance  or  damages  at  law. 

7  L.  R.  A.  90,  HESS  v.  LOWREY,  122  Ind.  225,  17  Am.  St.  Rep.  355,  23  N.  E.  156. 
Liability   of   partners   for   torts   of   others. 

Cited  in  notes  (37  L.  R.  A.  834)  on  liability  of  physician  or  surgeon  for  acts 
of  others;  (51  L.R.A.  495)  on  liability  of  partnership  for  torts;  (67  Am.  St. 
Rep.  38,  41)  on  liability  of  one  partner  for  tortious  acts  of  another;  (93  Am. 
St.  Rep.  666)  on  liability  of  physicians  and  surgeons  for  negligence  and  mal- 
practice of  partners. 
Evidence  of  transaction  \vith  deceased  partner. 

Disapproved   in  effect   in   Bay  View  Brewing  Co.  v.  Grubb,   31   Wash.   43,  71 
Pac.  553,  holding  evidence  of  transaction  between  party  in  interest  and  deceased 
member  of  partnership  inadmissible. 
"Waiver   of   right    of   action    ex    contract  11. 

Cited  in  Rauh  v.   Stevens,  21   Ind.  App.  651,  52  N.  E.  997,  holding  right  of 
action  ex  contractu  may  be  waived  for  remedy  ex  delicto;  Lane  v.  Boicourt.  128 
Ind.  421,  25  Am.  St.  Rep.  442,  27  N.  E.  1111,  holding,  in  action  against  physician 
for  malpractice,  plaintiff  may  waive  tort. 
Abatement  for  nonjoinder. 

Cited  in  Alexander  v.  Collins,  2  Ind.  App.  179,  28  N.  E.  190,  and  Boseker  v. 
Chamberlain,   160  Ind.   117,   66   N.   E.  448,  holding  plea  in  abatement  for  non- 
joinder bad  if  it  does  not  allege  that  parties  are  living  and  subject  to  process 
of  court. 
Snrvival   of  actions   in   tort. 

Approved  in  Hedekin  v.  Gillespie,  33  Ind.  App.  653,  72  N.  E.  143,  holding 
an  action  in  tort  or  contract  will  survive  death  of  the  tortfeasor  or  obligor 
where  the  cause  of  action  is  based  on  injury  to  estate  as  distinguished  from 
mere  nonpecuniary  personal  injury. 

Cited  in  Hamilton  v.  Jones,  125  Ind.  177,  25  N.  E.  192,  holding  right  of  action 
for  wrong  does  not  survive  death  of  wrongdoer;  Feary  v.  Hamilton,  140  Ind. 
52,  39  N.  E.  516,  holding  action  survives  only  where  injury  affects  primarily  and 
principally  property  rights;  Rice  v.  Van  Why,  49  Colo.  35,  111  Pac.  599,  holding 
that  in  suit  against  firm  for  negligent  death  of  partner,  does  not  work  abate- 


1233  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  90 

ment  nor  render  amendment  of  complaint  necessary;  Newman  v.  Gates,  165  Ind. 
174,  72  N.  E.  638,  6  A.  &  E.  Ann.  Gas.  649,  holding  cause  of  action  for  breach 
of  duty  by  attorney  causing  serious  injury  to  client  survives  his  death. 

Cited  in  footnote  to  Perkins  v.  Stein,  20  L.  R.  A.  8G2,  which  holds  survivable 
action  for  negligently  driving  over  person. 

Cited  in  note  (2  Eng.  Rul.  Cas.  17)  on  abatement  of  action  for  tort  by 
death  of  wrongdoer. 

Distinguished  in  Melvin  ex  rel.  McVey  v.  Emns,  48  Mo.  App.  427,  holding  ac- 
tion for  assault  abates  against  surety  on  death  of  principal. 
Action    for   tort   against   survivor   of  partnership. 

Followed  in  Robertson  v.  Ford,  164  Ind.  539,  74  N.  E.  1,  holding  that  where 
a  partner  dies  after  rendition  of  judgment,  for  a  tort  committed  by  the  partners, 
the  surviving  partner  may  be  subjected  to  an  appeal. 
Action  quasi  ex  contractn  for  damages. 

Cited  in  Holt  Ice  &  Cold  Storage  Co.  v.  Arthur  Jordan  Co.  25  Ind.  App.  319, 
67  N.  E.   575,  holding  action  against  storage  company  for  damages  to  butter, 
ex   contractu. 
Exhibition  of  injuries  to  jury. 

Cited  in  South  Bend  v.  Turner,  156  Ind.  427,  54  L.  R.  A.  400,  83  Am.  St.  Rep. 
200,  60  N.  E.  271,  holding  weapons,  clothing,  and  wounds  may  be  exhibited  to 
jury;  Arkansas  River  Packet  Co.  v.  Hobbs,  105  Tenn.  38,  58  S.  W.  278,  uphold- 
ing exhibition  and  exercise  of  injured  leg  before  jury. 
Pofver  of  court  to   order  medical   or  surgical   examination. 

Cited  in  Terre  Haute  &  I.  R.  Co.  v.  Brunker,  128  Ind.  554,  26  N.  E.  178,  hold- 
ing motion  to  compel  medical  examination  on  second  trial  after  plaintiff  had 
rested,  properly  overruled;  South  Bend  v.  Turner,  156  Ind.  431,  54  L.  R.  A.  400, 
83  Am.  St.  Rep.  200,  60  N.  E.  271,  holding  abuse  of  court's  discretionary  powe* 
to  order  physical  examination  of  injured  plaintiff,  reviewable;  Cook  BreAving  Co. 
v.  Ball,  22  Ind.  App.  663,  52  X.  E.  1002,  holding  injured  plaintiff  may  refuse  to 
submit  to  medical  examination  without  giving  reasons  therefor;  Graves  v.  Bat- 
tle Creek,  95  Mich.  270,  19  L.  R.  A.  642,  35  Am.  St.  Rep.  561,  54  N.  W.  757, 
upholding  court's  power  to  compel  injured  plaintiff  to  submit  to  physical  exam- 
ination before  the  jury;  Chicago,  B.  &  Q.  R.  Co.  v.  Krayenbuhl,  70  Xeb.  770, 
98  X.  W.  44,  holding  it  not  to  be  prejudicial  to  exhibit  injuries  and  allow 
plaintiff  to  sit  near  jury  and  weep  when  reference  is  made  to  them;  May  v. 
Northern  P.  R.  Co.  32  Mont.  529,  70  L.R.A.  114,  81  Pac.  328,  4  A.  &  E.  Ann. 
Cas.  605,  denying  right  of  court  to  order  compulsory  physical  examination  by 
court  physicians  in  personal  injury  case  in  absence  of  statutory  authority;  John- 
ston v.  Southern  P.  R.  Co.  150  Cal.  542,  89  Pac.  348,  11  Ann.  Cas.  841,  holding 
court  may  order  physical  examination  in  presence  of  plaintiffs'  and  defendants' 
physicians  where  nature  and  extent  of  injury  complained  of  may  be  ascertained 
by  such  examination  and  plaintiff  offers  testimony  of  his  physicians. 

Cited  in  footnote  to  Alabama  G.  S.  R.  Co.  v.  Hill,  9  L.  R.  A.  442,  which  hold» 
delicacy  and  refinement  of  feeling  not  ground  for  refusing  to  order  surgical 
examination  of  plaintiff. 

Cited  in  notes  (14  L.R.A.  468)  on  power  to  compel  plaintiff  to  submit  to 
physical  examination;  (68  Am.  St.  Rep.  245,  249)  on  physical  examination 
of  parties  by  order  of  court;  (15  L.R.A. (X.S.)  664)  on  refusal  of  order  for 
physical  examination  as  abuse  of  discretion. 

Disapproved   in  Pennsylvania   Co.  v.   Xewmeyer,   129   Ind.  410,  28  N.  E.   860, 
holding  in  absence  of  statute  party  not  obliged  to  submit  to  physical  examina- 
tion:  Union  P.  R.   Co.  v.  Botsford,   141   U.  S.  256,  35  L.  ed.   739,   11   Sup.  Ct. 
L.R.A.  Au.  Vol.  I.— 78. 


7  L.R.A.  90]  L.  R.  A.  CASES  AS  AUTHORITIES.  1234 

Rep.   1000,  holding  Federal  court  cannot  order  surgical  examination  of  injured 

plaintiff. 

Use   of   text-books   on   examination   of   expert   witnesses. 

Cited  in  Byers  v.  Nashville,  C.  &  St.  L.  R.  Co.  94  Tenn.  351,  29  S.  W.  128,  and 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Howell,  147  Ind.  274,  45  N.  E.  584,  upholding 
reading  of  statements  from  writers  of  repute,  on  cross-examination  to  test  ex- 
pert's knowledge;  Shover  v.  Myrick,  4  Ind.  App.  16,  30  N.  E.  207,  holding  scien- 
tific books  may  be  referred  to  by  experts  to  refresh  their  recollection;  Butler  v. 
South  Carolina  &  G.  Extension  R.  Co.  130  N.  C.  20,  40  S.  E.  770,  holding  that 
expert  witness  cannot  be  discredited  by  reading  opposite  opinion  from  text- 
book and  asking  him  whether  it  is  correct;  State  v.  Blackburn,  136  Iowa,  748, 
114  N.  W.  531,  holding  teachings  of  medical  text  books  may  not  be  assumed 
for  purpose  of  impeaching  witness  on  cross  examination  where  he  has  not  relied 
on  any  theory  therein  contained  in  his  direct  examination;  MacDonald  v.  Metro- 
politan Street  R.  Co.  219  Mo.  493,  118  S.  W.  78,  16  A.  &  E.  Ann.  Cas.  810, 
holding  that  under  instruction  to  jury,  witnesses  who  base  their  -testimony  on 
text  books  may  be  cross-examined  by  comparing  their  statements  with  those 
in  books  and  may  be  asked  if  they  concur  in  the  text  read  from  the  books ; 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Farmer,  102  Tex.  240,  115  S.  W.  260,  holding  extracts 
from  medical  authorities  admissible  in  cross-examination  of  medical  expert  to 
test  his  knowledge  of  the  subject  provided  the  author  from  whom  the  extract 
is  taken  be  named. 

Cited  in  note  (40  L.  R.  A.  567)  on  scientific  books  and  treatises  as  evidence. 
Instructions  as  to  credibility  of  witnesses. 

Cited  in  Mendenhall  v.  Stewart,  18  Ind.  App.  271,  47  N.  E.  943,  holding  in- 
struction properly  qualified,  as  to  witness's  interest  as  bearing  upon  credibility, 
not  erroneous. 
Conviction  as  bar  to  further  prosecution. 

Cited  in  footnote  to  People  v.  McDaniels,  59  L.  R.  A.  578,  which  holds  prosecu- 
tion for  assault  to  commit  murder  barred  by  conviction  of  battery  for  same 
acts. 

7  L.  R.  A.  93,  PICKLE  v.  PEOPLE'S  NAT.  BANK,  88  Tenn.  380,  17  Am.  St 

Rep.  900,  12  S.  W.  919. 
Right   of   payee   to   sue   drawee   upon   acceptance. 

Cited  in  Cincinnati,  H.  &  D.  R.  Co.  v.  Metropolitan  Nat.  Bank,  54  Ohio  St. 
68,  31  L.  R.  A.  655,  56  Am.  St.  Rep.  700,  42  N.  E.  700,  holding,  without  accept- 
ance, holder  of  check  cannot  compel  payment  from  drawee  bank. 

Cited  in  note  10  Eng.  Rul.  Cas.  425,  on  necessity  of  acceptance  of  check  to 
action  by  payee  against  bank. 

Disapproved  in  J.  N.  Houston  Grocer  Co.  v.  Farmers  Bank,  71  Mo.  App.  136, 
holding  payee  of  checks  cannot  maintain  action  against  drawee  for  payment  on 
forged  indorsements. 
Proof  of  acceptance. 

Cited  in 'Jackson  v.  National  Bank,  92  Tenn.  158,  18  L.  R.  A.  607,  36  Am.  St. 
Rep.  81,  20  S.  W.  802,  holding  paying  to  unauthorized  person  and  charging  to 
drawer's  account  sufficient  proof  of  acceptance. 

Cited   in   note    (17    L.R.A.fN.S.)     1268)    on   detention    of    draft    or   check    by 
drawee  as  acceptance. 
Payment   to  nnauthorized   person. 

Cited  in  Jackson  Paper  Mfg.  Co.  v.  Commercial  Nat.  Bank,  199  111.  164,  59 
L.  R.  A.  663,  93  Am.  St.  Rep.  113,  65  N.  E.  136,  and  Jackson  v.  National  Bank, 


1235  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  99 

92  Term.  158,  18  L.  R.  A.  667,  36  Am.  St.  Rep.  81,  20  S.  W.  802,  holding 
drawee  bank  responsible  unless  paying  check  to  payee  or  upon  genuine  indorse- 
ment; Western  U.  Teleg.  Co.  v.  Bi-Metallic  Bank,  17  Colo.  App.  233,  68  Pac. 
115,  holding  bank  not  relieved  from  liability  for  payment  of  check  to  person 
of  same  name  as  payee  by  delivery  of  check  by  drawer  to  such  person;  Pease 
v.  State  Nat.  Bank,  114  Tenn.  695,  88  S.  W.  172,  holding  that  the  drawer  of 
an  ordinary  check  may  before  acceptance  by  drawee,  stop  payment  thereon  and 
a  payment  after  such  notice  is  at  peril  of  bank;  Knoxville  Water  Co.  v.  East 
Tennessee  Nat.  Bank,  123  Tenn.  374,  131  S.  W.  447,  holding  that  bank  paying 
check  upon  forged  indorsement  is  liable  to  payee. 

Cited  in  note  (17  Am.  St.  Rep.  898)  on  rights  and  remedies  of  parties  where 
forged  check  has  been  paid. 

Distinguished  in  Unaka  Nat.  Bank  v.  Butler,   113  Tenn.  578,  83  S.  W.  655, 
holding  bank  authorized  to  pay  bona  fide  purchaser  of  check  which  was  indorsed 
in  blank  and  lost  by  payee. 
Receiving:  paper  for  collection. 

Cited  in  note  (7  L.  R.  A.  845)   on  ownership  of  paper  indorsed  in  blank. 
Power   of  agents   to   indorse   negotiable   paper. 

Cited  in  note  (27  L.  R.  A.  401)  on  power  of  agents  to  indorse  negotiable 
paper. 

7   L.   R.   A.   96,   COLE   v.   HAND,   88   Tenn.   400,   12   S.   W.   922. 

Who  entitled  to  benefit   of  statute  giving  wage-earners   preference* 

Cited  in  Pullis  Bros.  Iron  Co.  v.  Boemler,  91  Mo.  App.  92,  holding  superin- 
tendent of  iron  company  not  within  statute  according  employees  of  insolvent  cor- 
porations priority  of  payment. 

Cited  in  note   (18  L.  R.  A.  309)   on  who  are  laborers,  employees,  or  servants 
within  meaning  of  statutes  giving  them  preference. 
.Statutes    imposing    director's    liability Ho\v    construed. 

Cited  in  Tradesman  Pub.  Co.  v.  Knoxville  Car  Wheel  Co.  95  Tenn.  660,  31 
L.  R.  A.  601,  49  Am.  St.  Rep.  943,  32  S.  W.  1097,  holding  statutes  making  di- 
rectors of  insolvent  corporations  liable,  strictly  construed. 

7  L.  R.  A.  99,  ATTY.  GEN.  v.  DETROIT,  78  Mich.  545,  18  Am.  St.  Rep.  458, 

44  N.  W.  388. 
Citizenship. 

Cited  in  Boyd  v.  Nebraska,  143  U.  S.  168,  36  L.  ed.  112,  12  Sup.  Ct.  Rep. 
•375,  Reversing  31  Neb.  762,  48  N.  W.  739,  holding  resident  of  Nebraska  when 
taken  into  Union  citizen  of  United  States,  although  his  father  had  not  been  nat- 
uralized. 

Cited  in  note   (8  L.  R.  A.  337)   on  possession  of  political  rights  not  essential 
to  citizenship. 
Regulation    as    to    registration    of    voters. 

Cited  in  Morris  v.  Powell.  125  Ind.  293,  9  L.  R.  A.  330.  25  N.  E.  221,  holding 
law  requiring  certain  persons  to  be  registered  in  order  to  vote,  without  requir- 
ing others  to  be,  unconstitutional:  People  ex  rel.  Phillips  v.  Straasheim,  240 
111.  200.  22  L.R.A.iN.S.  i  m*.  SS  N.  E.  S21,  holding  a  30-day  residence  quali- 
fication to  be  defeated  by  failure  to. provide  for  registration  within  that  time 
where  registration  is  made  a  condition  precedent  to  right  to  vote;  Coggeshall 
v.  Des  Moines.  138  Iowa.  741.  128  Am.  St.  Rep.  221.  117  N.  W.  309,  doubting 
whether  regulation  as  to  registration  of  voters  by  legislation  may  discriminate 
^between  classes  of  full  voters. 


7  L.R.A.  99]  L.  R.  A.  CASES  AS  AUTHORITIES.  1236; 

Cited  in  footnote  to  Barret  v.  Taylor,  36  L.  R.  A.  129,  upholding  right  to- 
have  name  registered  as  voter  of  unnaturalized  minor  who  becomes  qualified  vot- 
er before  revision  of  registry. 

Cited  in  notes    (8  L.  R.  A.  338)    on  qualification  of  voters  registration   law; 
(10  L.  R.  A.  226)   on  election  law;  registration;    (25  L.  R.  A.  481,  485)    on  how 
far   right  to  vote  is  absolute;    (45   L.  ed.  U.   S.  215,  216,  217)    on  validity   of 
registration  laws. 
Limit  of  power  of  legislature  to  regulate  elective   franchise. 

Cited  in  Ferguson  v.  Allen,  7  Utah,  273,  26  Pac.  570;  Detroit  v.  Rush,  82  Mich. 
538,  10  L.  R.  A.  173,  46  N.  W.  951,  holding  legislature  may  regulate  but  not 
destroy  enjoyment  of  elective  franchise;  Todd  v.  Election  Comrs.  104  Mich.. 
482,  29  L.  R.  A.  334,  64  N.  W.  496,  upholding  act  forbidding  placing  of  name 
of  any  candidate  in  more  than  one  column  on  official  ballot ;  State  ex  rel.  Brown, 
v.  McMillan,  108  Mo.  163,  18  S.  W.  784,  holding  Australian  ballot  law  con- 
stitutional; Mills  v.  Green,  67  Fed.  831,  holding  registration  law,  abridging 
right  to  vote,  unconstitutional;  Slaymaker  v.  Phillips,  5  Wyo.  497,  47  L.  R.  A. 
858,  42  Pac.  1049  (dissenting  opinion)  majority  upholding  act  making  void, 
ballots  not  properly  indorsed  by  election  officers;  Butler  v.  Ellerbe,  44  S.  C.  286, 
22  S.  E.  425  (dissenting  opinion)  as  to  constitutionality  of  act  requiring  regis- 
tration of  voters;  Choisser  v.  York,  211  111.  72,  71  X.  E.  940  (dissenting  opin- 
ion), on  the  inability  to  legislate  away  the  constitutional  right  to  vote  and  its 
incidents;  Solon  v.  State,  54  Tex.  Crim.  Rep.  274,  114  S.  W.  349,  on  the  nature  and 
derivation  of  the  right  to  vote  and  its  subjection  to  modification  by  legislature. 

Cited  in  footnotes  to  Brewer  v.  McClelland,  17  L.R.A.  845,  which  holds  stat- 
ute requiring  notice  of  claim  to  be  legal  voter  from  p  rsons  residing  less  than 
six  months  in  county  void;  Pope  v.  Williams,  66  L.R.A.  398,  which  holds  that 
legislature  may  require  person  coming  into  state  to  take  up  residence  to  evidence 
such  fact  In  public  record  to  entitle  him  to  vote. 

Distinguished  in  Atty.  Gen.  ex  rel.  Reynolds  v.  May.  99  Mich.  545,  25  L.  R.  A. 
328,  58  N.  W.  483,  upholding  regulations  to  preserve  purity  of  elections,  although 
resulting  in  some  inconvenience  to  voters. 
"When   whole  act,   void   in   part,  must   fall. 

Cited  in  Butler  v.  Ellerbe,  44  S.  C.  293,  22  S.  E.  425  (dissenting  opinion) 
as  to  invalidity  of  entire  act  part  of  which  is  unconstitutional. 

7  L.  R.  A.  105,  TERRITORY  ex  rel.  CHOTEAU  COUNTY  v.  CASCADE  COUNTY, 

8  Mont.  396,  20  Pac.  809. 
Mandamus. 

Cited  in  footnote  to  State  ex  rel.  Fleming  v.  Crawford,  14  L.  R.  A.  253,  which 
grants  mandamus  to  compel  secretary  of  state  to  seal  appointment  of  United 
States  senator. 

Cited  in  note  ( 11  L.  R.  A.  763)  on  mandamus  to  control  executive  discretion. 
Liability  of  qounties  for  torts  and  negligence. 

Cited  in  note  (39  L.  R.  A.  71)  on  liability  of  counties  in  actions  for  torts 
and  negligence. 

7  L.  R.  A.   Ill,  WALKER  v.  VICKSBURG,  S.  &  P.  R.  CO.  41   La.  Ann.   795, 

17  Am.  St.  Rep.  417,  6  So.  916. 
Contributory   negligence. 

Cited  in  Bemiss  v.  New  Orleans  City  &  Lake  R.  Co.  47  La.  Ann.  1675,  18  So. . 
711,  holding  passenger  going  from  one  car  to  another  while  train  is  moving  can- 
not recover  if  thrown  off. 

Cited  in  note   (8  L.  R.  A.  674)   on  contributory  negligence  of  passenger. 


1237  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  118 

\  I  ii.-  !i  i  i  iiii   from  moving  ear. 

Cited  in  Odom  v.  St.  Louis  S.  W.  R.  Co.  45  La.  Ann.  1203,  14  So.  734,  23  L. 
R.  A.  153,  holding  passenger  carried  beyond  his  station,  jumping  from  moving 
train,  cannot  recover;  Burgin  v.  Richmond  &  D.  R.  Co.  115  N.  C.  675,  20  S.  E. 
473,  holding  mere  failure  to  stop  does  not  justify  passenger  in  leaping  from 
moving  train;  Chesapeake  &  O.  R.  Co.  v.  Paris  (Chesapeake  &  O.  R.  Co.  v.  Bell) 
111  Va.  58,  28  L.R.A.(X.S.)  773,  68  S.  E.  398  (dissenting  opinion),  on  alighting 
from  slowly  moving  train  as  contributory  negligence. 

Cited  in  notes  (11  L.  R.  A.  367)  on  duty  of  carrier  to  assist  in  landing  pas- 
senger safely;  (11  L.  R.  A.  396)  on  passenger  alighting  from  moving  train; 
(13  L.  R.  A.  95)  on  duty  of  railway  conductors  in  stopping  and  starting  trains; 
(21  L.R.A.  360)  on  injuries  in  getting  on  and  off  railroad  trains;  (22  Am.  St. 
Rep.  752)  on  negligence  in  boarding  or  alighting  from  moving  train. 

Distinguished  in  Brashear  v.  Houston,  C.  A.  &  N.  R.  Co.  47  La.  Ann.  738, 
28  L.  R.  A.  812,  49  Am.  St.  Rep.  382,  17  So.  260,  upholding  recovery  where  plain- 
tiff not  thrown  from  train  by  sudden  jerk;  Ober  v.  Crescent  City  R.  Co.  44  La. 
Ann.  1003,  32  Am.  St.  Rep.  366,  11  So.  818,  holding  it  not  negligence  per  se 
to  alight  from  moving  horse  car. 
Duty  of  carrier  to  furnish  safe  stations  and  platforms. 

Cited  in  footnotes  to  Delaware,  L.  &  W.  R.  Co.  v.  Trautwein,  7  L.  R.  A.  435, 
•wMch  holds  carrier  required  to  keep  passageway  at  station  though  other  pas- 
sageway provided;  Redigan  v.  Boston  &  M.  R.  Co.  14  L.  R.  A.  276,  which  denies 
recovery  to  licensee  falling  through  open  trap  door  in  station  platform;  Herr 
man  v.  Great  Northern  R.  Co.  57  L.  R.  A.  390,  which  holds  railroad  company 
liable  for  injury  to  passenger  from  unsafe  condition  of  depot  premises  leased 
of  union  depot  company  or  its  receiver. 

Cited  in  notes  (11  L.  R.  A.  720)  on  carrier's  duty  of  care  for  safety  of  pas- 
senger; (16  L.  R.  A.  449)  on  regulations  as  to  admission  of  passenger  to  train 
house;  (16  L.  R.  A.  593)  on  duty  of  carrier  to  maintain  safe  approach  beyond  its 
own  premises;  (20  L.  R.  A.  527)  as  to  whom  railroads  owed  duty  of  keeping  sta- 
tion platforms  safe. 

7  L.  R.  A.  118,  ODOM  v.  RIDDICK,  104  N.  C.  515,  17  Am.  St.  Rep.  686,  10  S.  E. 

609. 
Contracts   -with    insane    persons. 

Cited  in  French  Lumbering  Co.  v.  Theriault,  107  Wis.  642,  51  L.  R.  A.  916, 
81  Am.  St.  Rep.  856,  83  N.  W.  927,  holding  deed  of  insane  person  not  under 
guardianship  voidable  only;  Chamblee  v.  Broughton,  120  N.  C.  176,  27  S.  E. 
Ill,  holding  bona  fide  foreclosure  purchaser  without  notice  protected  against 
mortgagor's  insanity;  Creekmore  v.  Baxter,  121  N.  C.  33,  27  S.  E.  994,  holding 
equity  will  set  aside  contracts  made  with  lunatics,  with  knowledge  of  lunacy: 
Allred  v.  Smith,  135  X.  C.  445.  65  L.  R.  A.  926,  47  S.  E.  597,  holding  deed  by  one 
non  compos  at  time  of  execution  to  be  voidable  only;  Reid  v.  Singer  Mfg.  Co. 
128  Ky.  65,  129  Am.  St.  Rep.  295,  107  S.  W.  310,  on  the  common  law  rule  that 
insane  person's  contracts  are  not  void  but  voidable;  Sprinkle  v.  Wellborn,  140 
N.  C.  173,  3  L.R.A.(X.S.)  179,  111  Am.  St.  Rep.  827,  52  S.  E.  666,  on  the 
voidability  only  of  insane  person's  contracts,  not  previously  declared  insane; 
Beeson  v.  Smith,  149  N.  C.  144,  62  S.  E.  888,  on  the  relief  afforded  to  insane 
persons  from  the  results  of  their  contracts;  West  v.  Seaboard  Air  Line  R.  Co. 
151  X.  C.  235.  65  S.  E.  979,  holding  that  the  undeclared  insanity  of  a  party 
to  a  release  from  liability  does  not  render  it  void  of  itself  but  voidable:  Godwin 
v.  Parker,  152  X.  C.  675,  68  S.  E.  208,  holding  contract  made  with  knowledge 
of  declared  insanity  of  the  other  party  is  void  for  fraud;  Chadwell  v.  Reed,  198 


7  L.H.A.  118]  L.  R.  A.  CASES  AS  AUTHORITIES.  1238 

Mo.  379,  95  S.  W.  227,  holding  that  insanity  to  avoid  a  contract  must  be  proved 
by  person  asserting  it,  insanity  raising  a  rebuttable  presumption  of  invalidity 
only;  Maas  v.  Durmyer,  21  Okla,  444,  96  Pac.  591,  holding  a  mortgagee  for 
value  without  notice  takes  a  valid  lien  on  the  property  of  grantee  from  unde- 
clared insane  person. 

Cited  in  notes  (19  L.  R.  A.  492)  on  validity  of  deed  made  by  insane  person; 
(36  L.R.A.  721,  723,  727)  on  presumption  and  burden  of  proof  as  to  sanity; 
(42  Am.  St.  Rep.  753)  on  civil  liability  of  incompetent  persons;  (71  Am.  St. 
Rep.  433)  on  contracts  of  insane  persons;  (6  Eng.  Rul.  Cas.  76,  78)  on  validity 
of  contract  by  insane  person;  (16  Eng.  Rul.  Cas.  739)  on  lunacy  disqualifying 
person  to  act  as  a  free  agent, 
lloim  fide  purchaser. 

Cited  in  Cox  v.  Wall,  132  N.  C.  737,  44  S.  E.  635,  holding  burden  to  be  upon 
purchaser  from  fraudulent  grantee  to  show  valuable  consideration  and  want  of 
notice. 
Bona  fide   rights  under  voidable   deed. 

Cited  in  Phillips  v.  Buchanan  Lumber  Co.  151  N.  C.  521,  66  S.  E.  603,  holding 
that  a  purchaser  for  value  from  holder  of  deed  obtained  by  fraud  takes  good 
title  where  he  has  no  notice  of  the  fraud. 
Placing?  of  parties  In   statn  quo. 

Cited  in  Cox  v.  Boyden,  153  N.  C.  527,  69  S.  E.  504,  to  the  point  that  object 
of  rescission  of  contract  is  to  place  parties  in  same  condition  as  if  there  had 
been  no  change  of  condition  by  attempted  contract. 

7  L.  R.  A.   120,  KELLY  v.  BENNETT,   132  Pa.  218,   19  Am.  St.  Rep.  594,   19 

Atl.  69. 
Dangerous  premises. 

Cited  in  notes   (7  L.  R.  A.  621)   on  dangerous  premises;    (26  L.  R.  A.  691)   on 
liability  for  dangerous  condition  of  private  grounds  lying  open  beside  highway 
or  frequented  path. 
Proximate  and  remote  cause  of  injury. 

Cited  in  Foster  v.  American  Bitumastic  Enamel  Co.  15  Pa.  Dist.  R.  319, 
holding  that  where  plaintiff  went  up  onto  deck  of  steamer  where  men  were 
enameling  pipes  and  slipped  on  a  spot  of  enamel  on  the  deck  and  fell  with  his 
hand  in  bucket  of  hot  enamel  such  spot  and  bucket  were  not  proximate  cause 
of  injury:  McCandless  v.  Phreaner,  24  Pa.  Super.  Ct.  386,  9  Del.  Co.  Rep.  254, 
holding  plaintiff  injured  by  reason  of  a  chain  being  hung  in  private  gateway 
of  which  he  had  knowledge,  may  not  recover  therefor. 

Cited  in  note  (7  L.  R.  A.  133)   on  remote  cause  of  injury. 
Right  to   erect  rail  adjacent   to  side-walk. 

Cited  in  Strayline  v.  Philadelphia.  15  Pa.  Dist.  R.  389,  holding  a  railing  along 
house  wall  inside  of  sidewalk  a  lawful  structure. 

7  L.  R.  A.  121,  STATE  ex  rel.  ST.  PAUL,  M.  &  M.  R.  CO.  v.  DISTRICT  COURT,. 

42  Minn.  247,  44  N.  W.  7. 
Damages    for   laying   out    highway   over    railroad    track. 

Followed  in  State  ex  rel.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Shardlow,  43  Minn. 
526,  46  X.  W.  74.  holding  railroad  company  not  entitled  to  recover  for  main- 
tenance of  sign-boards  and  cattle-guards,  in  assessing  damages  for  laying  out 
highway  over  track. 

Cited  in  Albia  v.  Chicago,  B.  &  Q.  R.  Co.  102  Iowa,  630,  71  X.  W.  541.  holding. 
in  absence  of  statute,  railroad  cannot  be  compelled  to  construct  crossings  over 


2-239  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  125 

right  of  way  to  connect  new  streets;  Cleveland  v.  Augusta,  102  Ga.  237,  43  L.  R. 
A.  639,  29  S.  E.  584,  holding  railroad  company  must  bear  expense  of  crossing 
alterations  to  conform  to  new  street  grade;  Morris  &  E.  R.  Co.  v.  Orange,  63 
X.  J.  L.  270,  43  Atl.  730,  holding  railroad  not  entitled  to  compensation  for  main- 
tenance of  gates,  sign-boards,  cattle-guards,  and  flagman;  Chicago,  M.  &  St.  P. 
R.  Co.  v.  Milwaukee,  97  Wis.  428,  72  X.  W.  1118,  holding  duty  of  erecting  and 
maintaining  cattle-guards,  warning  posts  and  crossing  signs  imposed  by  police 
regulations  must  be  performed  without  compensation;  Louisville  &  N.  R.  Co. 
v.  Louisville,  131  Ky.  126,  24  L.R.A.(X.S.)  1224,  114  S.  W.  743,  holding  that 
damages  for  highway  across  railroad  should  not  include  cost  of  maintenance 
and  protection  of  crossing  or  compensation  for  increased  liability  to  accidents; 
State  ex  rel.  Minneapolis  v.  St.  Paul,  M.  &  M.  R.  Co.  98  Minn.  386,  120  Am. 
St.  Rep.  581,  108  X.  W.  261,  8  A.  &  E.  Ann.  Cas.  1047,  holding  that  the  state 
has  power  to  compel  a  railway  company  to  install  safety  devices  at  street  cross- 
ings, and  this  applies  as  well  to  old  streets  as  new. 

Cited  in  note  (24  L.R.A.  (X.S.)  1234,  1235)  on  necessity  and  measure  of 
compensation  upon  laying  out  street  across  railway  property. 

Distinguished   in   Grafton   v.   St.   Paul,   M.    &   M.   R.    Co.    16   N.   D.    320,   22 
L.R.A. (X.S.)    14,    113    X.   W.   598,    15   A.   &   E.   Ann.   Cas.    10,   holding  that   a 
railroad   company    was    not  entitled   to   damages   for    structural   changes   made 
necessary  by  the  laying  out  of  a  road  over  the  right  of  way. 
As  to  dnties  not  imposed  by  police  regulations. 

Followed  in  State  ex  rel.  Chicago,  M.  &  St.  P.  R.  Co.  v.  Shardlow,  43  Minn. 
526,  46  N.  W.  74,  holding  railroad  entitled  to  compensation  for  planking  and  its 
maintenance. 

Cited  in  Baltimore  &  0.  R.  Co.  v.  Baltimore,  98  Md.  538,  56  Atl.  790,  holding 
that  where  a  new  street  is  laid  out  over  a  railroad  the  company  is  entitled  to 
compensation  for  planking  and  maintaining  the  same. 
Laying:  hightvay  across  tracks. 

Cited  in  Madera  v.  Madera  Canal  &  Irrig.  Co.  159  Cal.  752,  115  Pac.  936, 
to  the  point  that  railroads  may  be  required  to  provide  suitable  crossings  over 
highways  established  after  construction  of  railway;  Cleveland  v.  Augusta,  102 
Ga.  236,  43  L.R.A.  638,  29  S.  E.  584,  holding  that  railroad  must  at  its  own 
expense,  make  such  alterations  in  grade  of  crossings  as  will  conform  to  new 
grade  of  street  in  city;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Minneapolis,  115  Minn. 
467,  —  L.R.A. (X.S.)  — ,  133  N.  W.  169,  holding  that  railroad  may  be  required 
to  erect  and  maintain  bridge  to  carry  its  tracks  over  street  crossing  where  public 
safety,  convenience,  or  welfare  require  such  bridge. 

Cited  in  footnotes  to  Illinois  C.  R.  Co.  v.  Chicago,  17  L.  R.  A.  530.  which  holds 
city  council's  discretion  to  extend  street  over  railroad  tracks  at  grade  or  on 
bridge  or  viaduct  not  controllable  by  courts ;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Stark- 
weather, 31  L.  R.  A.  183,  which  sustains  right  to  open  street  across  depot 
grounds;  Terre  Haute  v.  Evansville  &  T.  H.  R,  Co.  37  L.  R.  A.  1*9,  which  au- 
thorizes laying  out  streets  across  freight  yard  and  tracks. 

7  L.  R.  A.   125,  EARL  v.  WILSOX,  42  Minn.  361,   18  Am.  St.  Rep.  517,  44  N. 

W.  254. 
Validity   of   marriage. 

Cited  in  footnote  to  Hilton  v.  Roylance,  58  L.  R.  A.  723,  which  sustains  sealing 
for  time  and  eternity  under  Mormon  marriage  ceremony. 

Cited  in  note   (79  Am.  St.  Rep.  382)   on  what  marriages  are  void. 
—  Indian  marriage* 

Cited  in  McBean  v.  McBean,  37  Or.  202,  61  Pac.  418,  to  point  that  marriage 


7  L.E.A.  125]  L.  R.  A.  CASES  AS  AUTHORITIES.  1240 

Let  ween  Indians  according  to  tribal  custom  is  valid  in  state  and  Federal  courts: 
Ortley  v.  Ross,  78  Xeb.  342,  110  X.  W.  982,  holding  that  a  marriage  between  the 
members  of  an  Indian  tribe,  while  the  tribal  relations  existed  is  valid  if  per- 
formed according  to  the  customs  of  the  tribe;  Cyr.  v.  Walker,  29  Okla.  289,  35 
L.R.A.  (N.S.)  801,  116  Pac.  93],  to  the  point  that  marriage  contracted  between 
members  of  Indian  tribe,  in  accordance  with  its  laws  and  customs,  in  absence 
of  statute,  is  valid;  Kalyton  v.  Kalyton,  45  Or.  122,  74  Pac.  491,  holding  that 
if  the  marriage  was  celebrated  according  to  the  customs  of  the  tribe  to  which 
they  belong,  and  they  lived  together  as  husband  and  wife,  the  marriage  is  valid. 

Cited  in  notes  (11  L.  R.  A.  542)  on  jurisdiction  over  Indian  country;  (57  L. 
R.  A.  160)  on  conflict  of  laws  as  to  validity  of  Indian  marriage. 

Distinguished  in  Moore  v.  Xah-con-be,  72  Kan.  172,  83  Pac.  400,  holding  that 
.a  marriage  or  divorce  of  Indians  according  to  the  customs  of  the  tribes  is  not 
valid  after  they  become  citizens  of  the  state. 

7  L.  R.  A.  127,  HANSON  v.  GRAHAM,  82  Cal.  631,  23  Pac.  56. 
Residence. 

Cited  in  San  Diego  Sav.  Bank  v.  Goodsell,  137  Cal.  427,  70  Pac.  299,  holding 
affidavit  for  publication  of  summons  giving  defendant's  "address"  outside  state, 
is  compliance  with  statute  providing  such  service,  when  person  "resides"  outside 
the  state;  Witbeck  v.  Marshall-Wells  Hardware  Co.  88  111.  App.  108,  holding 
person  giving  up  residence,  and  living  in  hotels  in  another  state,  to  avoid  process, 
and  without  definite  intention  of  returning,  is  nonresident  within  attachment  law; 
Robinson  v.  Morrison,  2  App;  D.  C.  128,  holding  fact  of  residence  cannot  be  con- 
trolled by  intention;  Egener  v.  Juch,  101  Cal.  106,  35  Pac.  432  (distinguished  in 
dissenting  opinion),  refusing  to  reverse  order  dissolving  attachment  against  de- 
fendants as  nonresidents  upon  conflicting  affidavits  as  to  residence;  Pech  Mfg. 
Co.  v.  Groves,  6  S.  D.  507,  62  N.  W.  109,  holding  debtor  under  the  circumstances 
not  to  be  a  resident  as  defined  in  laws,  entitling  his  property  to  exemption 
from  attachment. 

Cited  in  notes  ( 19  L.  R.  A.  665  )  on  what  is  nonresidence  for  purpose  of  at- 
tachment; (10  L.  R.  A.  504)  on  who  are  nonresidents. 

Distinguished  in  Re  Donovan,  104  Cal.  625,  38  Pac.  456,  holding  three  days' 
presence  in  state  by  one  looking  after  settlement  of  brother's  estate  and  declara- 
tion of  intention  to  remain,  insufficient  to  establish  bona  fide  residence. 

7  L.  R.  A.   128,  BAIRD  v.  SHIPMAN,  132  111.  16,  22  Am.  St.  Rep.  504,  23  N. 

E.  384. 
Liability  of  agent  or  custodian  for  defective  premises. 

Approved  in  Mayer  v.  Thompson-Hutchison  Bldg.  Co.  104  Ala.  622,  28  L.  R.  A. 
436,  53  Am.  St.  Rep.  88,  16  So.  620,  holding  agent  of  contractor  jointly  liable 
with  him  for  injury  to  third  person  resulting  from  negligent  construction  of 
wall;  Lough  v.  John  Davis  &  Co.  30  Wash.  213,  59  L.  R.  A.  805,  94  Am.  St.  Rep. 
848.  70  Pac.  491,  holding  agent  having  charge  of  building  liable  for  injuries  to 
tenants  caused  by  his  failure  to  make  repairs. 

Cited  in  Chicago  Consol.  Bottling  Co.  v.  Mitton,  41  111.  App.  156,  holding  one  in 
control  of  premises  responsible  for  known  defects  or  for  those  of  which  he  might 
have  known  by  exercising  reasonable  care;  Gibson  v.  Leonard,  37  111.  App.  348,  to 
point  that  agent  having  control  of  premises  responsible  for  their  condition  when 
leased;  Stiewel  v.  Borman,  63  Ark.  37,  37  S.  W.  404,  holding  agent  operating 
mine  not  liable  to  one  to  whom  he  owes  no  duty,  injured  by  explosion  of  gas; 
Cameron  v.  Kenyon-Connell  Commercial  Co.  22  Mont.  320,  44  L.  R.  A.  511,  74  Am. 
St.  Rep.  G02,  56  Pac.  508,  holding  director  who  knows  nothing  of  nuisance  main- 


1241  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  130 

tained  by  corporation  and  could  not  have  known  by  ordinary  diligence,  not  re- 
sponsible ;  Donk  Bros.  Coal  &  Coke  Co.  v.  Leavitt,  109  111.  App.  390,  holding  land- 
lord liable  for  drowning  of  child  under  three  years  of  age,  by  falling  into  un- 
guarded cistern;  Orcutt  v.  Century  Bldg.  Co.  201  Mo.  450,  8  L.R.A.  (X.S.)  937, 
99  S.  W.  1062,  holding  trustee  having  complete  control  of  building  liable  for 
injury  caused  by  negligence  in  maintenance  of  elevator  and  negligence  of  the 
elevator  man;  Rauch  v.  Brunswig,  155  Mo.  App.  371,  137  S.  W.  67,  to  the  point 
that  agent  may  be  liable  personally  to  third  person  where  he  has  control  of  the 
property;  Hagerty  v.  Montana  Ore  Purchasing  Co.  (Hagerty  v.  Wilson)  38  Mont. 
77,  25  L.R.A.  (X.S.)  359,  98  Pac.  643,  holding  mining  superintendent  liable  to 
workmen  injured  in  a  defective  shaft  which  it  was  his  duty  to  close  under  the 
circumstances;  Young  v.  Rohrbough,  88  Neb.  106,  129  N.  W.  167,  holding  that 
agents  of  corporation  are  liable  to  third  person  for  injury  caused  by  defective 
premises  which  are  under  such  agent's  control. 

Cited  in  note  (28  L.  R.  A.  438)  as  to  liability  of  agent  to  third  person  for 
nopliirence. 

Distinguished  in  Kuhnert  v.  Angell,  10  X.  D.  61,  88  Am.  St.  Rep.  675,  84  N.  W. 
579,  holding  agent  for  owner  of  unoccupied  land  not  liable  to  a  trespasser  for  its- 
unsafe  condition  where  his  authority  was  limited  to  leasing  and  collecting  rent; 
Smith  v.  Pawlak,  136  111.  App.  279,  holding  persons  hiring  elevator-boy  for  the 
owner  of  a  building  over  which  such  persons  had  control,  not  liable  for  injury 
caused  by  negligence  of  such  boy. 
Personal  liability  of  agrent  for  negligence. 

Cited  in  Frorer  v.  Baker,  137  111.  App.  594,  holding  agent  of  corporation  not 
personally  liable  for  negligence  of  corporation  causing  injury  unless  he  could 
be  held  without  regard  to  liability  of  the  corporation;  Ward  v.  Pullman  Car 
Corp.  131  Ky.  150,  25  L.R.A.  ( N.S. )  351,  114  S.  W.  754,  holding  car  inspectors 
for  railway  company  personally  liable  for  negligent  inspection  and  approval  of 
defective  car  causing  injury;  Carson  v.  Quinn,  127  Mo.  App.  534,  105  S.  W. 
1088,  holding  failure  of  agent  to  perform  duty  lays  him  liable  only  to  principal 
but  the  misdoing  of  that  duty  makes  him  liable  for  consequences  to  third  persons. 

Cited  in  notes  (48  Am.  St.  Rep.  926)  on  personal  liability  of  corporate  officers 
to  third  persons;    (2   L.R.A. (X.S.)    379)    on  servant's  liability   to  third  person 
for  torts. 
Actionable   breach    of   duty. 

Cited  in  Brower  v.  Xorthern  P.  R.  Co.  109  Minn".  387,  25  L.R.A.(X.S.)  355, 
124  X.  W.  10,  holding  liability  of  one  fellow  servant  to  another  for  causing 
injury  depends,  not  on  any  privity  of  contract,  but  on  the  common  law  obliga- 
tion to  so  act  as  not  to  injure  another;  Pewonka  v.  Stewart,  13  X.  D.  121,  99 
X.  W.  1080,  holding  defendant  in  driving  post  in  traveled  pathway  was  not 
conducting  himself  in  the  use  of  property  in  his  control  so  as  not  to  injure  others. 

7  L.  R.  A.  130,  READ  v.  NICHOLS,  118  N.  Y.  224,  28  X.  Y.  S.  R.  867,  23  N. 

E.  468. 
Proximate    cause. 

Cited  in  Hoffman  v.  King,  160  X.  Y.  625,  46  L.  R,  A.  675,  73  Am.  St.  Rep.  715, 
55  N.  E.  401,  holding  negligence  in  starting  fire  not  proximate  cause  of  de- 
struction of  property  to  which  it  spreads  across  intervening  lands;  Beetz  v. 
Brooklyn,  10  App.  Div.  384,  41  X.  Y.  Supp.  1009,  holding  placing  lime  in  street 
for  building  purposes  not  proximate  cause  of  injury  to  boy  who  put  some  lime  in 
contact  with  water;  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Elliott,  20  L.  R,  A.  587, 
5  C.  C.  A.  352,  12  U.  S.  App.  381,  55  Fed.  954,  holding  conductor's  statement  to 


7  L.R.A.  130]  L.  R.  A.  CASES  AS  AUTHORITIES.  1242 

stockman  that  caboose  would  not  be  changed  and  he  would  not  have  time  to  look 
at  sheep  not  proximate  cause  of  injury  where  stockman  while  walking  on  top  of 
cars  fell  when  the  caboose  was  changed;  Cole  v.  German  Sav.  &  L.  Soc.  63  L.  R. 
A.  424,  59  C.  C.  A.  602,  124  Fed.  122,  holding  opening  of  elevator  well  door  in 
hallway  by  stranger  proximate  cause  of  injury  to  one  who  stepped  into  shaft; 
Xoe  v.  Rapid  R.  Co.  133  Mich.  162,  94  N.  W.  743  (dissenting  opinion),  on 
question  of  proximate  cause  also  citing  annotation  on  same  point. 

Cited  in  footnotes  to  Kelly  v.  Bennett,  7  L.  R.  A.  120,  which  holds  sharp  point 
on  iron  railing  around  area  not  proximate  cause  of  injury  to  person  slipping  on 
walk;  McC'lain  v.  Garden  Grove,  12  L.  R.  A.  482,  which  holds  narrowness  of 
bridge  and  insufficiency  of  railings  not  proximate  cause  of  injury  from  horse  falling 
from  disease  or  choking;  Schumaker  v.  St.  Paul  &  D.  R.  Co.  12  L.  R.  A.  257, 
which  holds  master's  neglect  to  furnish  transportation  proximate  cause  of  injury 
in  walking  to  find  shelter;  Vallo  v.  United  States  Exp.  Co.  14  L.  R.  A.  743, 
which  holds  throwing  trunk  from  delivery  wagon  in  highway  proximate  cause  of 
traveler  falling  over  another  trunk;  Southwestern  Teleg.  &  Teleph.  Co.  v.  Robin- 
son, 16  L.  R.  A.  545,  which  holds  telephone  company  liable  for  injury  by  elec- 
tricity generated  by  thunder  storm  in  low-hanging  telephone  wire;  Herr  v.  Le- 
banon, 16  L.  R.  A.  106,  which  holds  want  of  barrier  not  proximate  cause  of  omni- 
bus going  over  wall,  while  horse  was  attempting  to  rise;  McKenna  v.  Baessler, 
17  L.  R.  A.  310,  which  holds  original  fire  cause  of  destruction  of  property  by 
back  fire;  Chicago,  St.  P.  M.  &  O.  R.  Co.  v.  Elliott,  20  L.  R.  A.  582,  as  to  proxi- 
mate cause  of  injury  to  shipper  while  stepping  from  stock  car  to  caboose ;  West- 
ern R.  Co.  v.  Mutch,  21  L.  R.  A.  316,  which  holds  excessive  speed  not  proximate 
cause  of  death  of  boy  attempting  to  catch  on  train;  Hoffman  v.  King,  46  L.  R.  A. 
672,  which  denies  liability  of  one  negligently  starting  fire  for  damage  to  lands 
of  remote  proprietors  to  which  fire  spreads;  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Blaker,  64  L.  R.  A.  81,  which  holds  railroad  company  liable  for  loss  due  to  spread 
of  flames  from  buildings  on  its  right  of  way  negligently  set  on  fire  by  it. 

Cited  in  notes  (13  L.  R.  A.  733)  on  proximate  and  remote  cause  of  damage; 
(12  L.  R.  A.  283)  on  proximate  cause  of  injury  fixing  the  liability;  (13  L.  R,  A. 
193)  on  responsibility  for  proximate  or  direct  consequences  of  negligence;  (12 
L.  R.  A.  280)  on  contributory  negligence  must  be  proximate  cause  of  injury;  (8 
L.  R.  A.  85)  as  to  effect  of  intervening  cause  upon  liability  for  negligence;  (17 
L.  R.  A.  38)  on  effect  of  concurring  negligence  of  third  person  on  liability  of 
one  sued  for  negligently  causing  injury;  (20  L.R.A. (N.S.)  94)  on  weather 
conditions,  as  independent,  intervening,  efficient  cause;  (36  Am.  St.  Rep.  825) 
on  proximate  and  remote  cause. 

Distinguished  in  Martin  v.  New  York,  O.  &  W.  R.  Co.  62  Hun,  185,  16  X.  Y. 
Supp.  499,  holding  sparks  from  engine  which  set  fire  along  track  proximate  cans.; 
of  burning  of  woodland  a  mile  distant  to  which  wind  and  intervening  condition .; 
carried  fire. 

Disapproved   in  Florida  East  Coast  R.  Co.  v.  Welch,  53  Fla.  168,  44  So.  250, 
12  A.  &  E.  Ann.  Cas.  210,  holding  a  change  of  wind  not  a  cause  intervening  to 
prevent  recovery  for  negligent  starting  of  a  fire. 
—  Question  for  jury. 

Cited  in  Stone  v.  Boston  &  A.  R.  Co.  171  Mass.  543,  41  L.  R.  A.  797,  51  N.  E. 
1,  holding  case  need  not  be  submitted  to  jury  if  damages  are  too  remote;  Homo 
Oil  &  Gas.  Co.  v.  Dabney,  79  Kan.  829,  102  Pac.  488,  holding  that  wliere  the 
facts  show  that  the  proximate  cause  is  some  independent  agency  and  that  acts 
complained  of  are  remote  cause,  it  is  duty  of  court  to  keep  question  from  jury 
and  decide  on  cause. 


1243  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  134 

Sufficiency  of  exception. 

Cited  in  Huerzeler  v.  Central  Cross  Town  R.  Co.  139  X.  Y.  493,  34  N.  E.  1101, 
Affirming  1  Misc.  138,  48  X.  Y.  S.  R.  651,  20  N.  Y.  Supp.  676,  holding  general 
exception  to  the  granting  and  refusal  of  requests  to  charge  insufficient ;  Purcell 
v.  Lauer,  14  App.  Div.  53,  43  X.  Y.  Supp.  988  (dissenting  opinion),  majority 
holding  question  for  jury  where  death  resulted  over  a  year  after  fall  on  side- 
walk; Southern  P.  R.  Co.  v.  Yeargin,  48  C.  C.  A.  504,  109  Fed.  443  (dissenting 
opinion),  to  conceded  proposition  that  if  there  is  evidence  that  defendant's  negli- 
gence was  proximate  cause  of  injury  question  is  for  jury,  otherwise  for  court; 
Barker  v.  Cunard  S.  S.  Co.  91  Hun,  500,  36  X.  Y.  Supp.  256,  holding  general 
exception  to  refusal  to  charge  requests  insufficient  unless  each  should  have  been 
granted  as  preferred ;  McKinley  v.  Metropolitan  Street  R.  Co.  77  App.  Div.  259,  79 
X.  Y.  Supp.  213,  holding  "exception  in  due  form  to  each  request  refused  or 
modified"  allowed  by  court  after  retirement  of  jury,  sufficient;  Benedict  v. 
Deshel,  77  App.  Div.  279,  79  X.  Y.  Supp.  205,  holding  exception  to  each  refusal  to 
charge  to  several  requests,  too  indefinite;  Connor  v.  Metropolitan  Street  R.  Co. 
77  App.  Div.  388,  79  X.  Y.  Supp.  294,  holding  exception  to  court's  charging  re- 
quests "first,  second,"  etc.,  sufficient. 
Harmless  error  in  admiaaibility  of  evidence. 

Cited  in  Ives  v.  Ellis,  169  X.  Y.  106,  62  X.  E.  138  (dissenting  opinion),  ma- 
jority holding  erroneous  admission  of  letter  incompetent  as  hearsay,  not  cured 
by  general  verdict;  Cunningham  v.  Springer,  204  U.  S.  655,  51  L.  ed.  665,  27 
Sup.  Ct.  Rep.  301,  9  A.  &  E.  Ann.  Cas.  897,  holding  that  where  the  verdict 
shows  an  issue  to  have  been  immaterial  the  admission  of  evidence  on  that  point 
was  not  prejudicial  and  cannot  be  grounds  for  reversal. 

7  L.  R.  A.  134,  LAWTOX  v.  STEELE,  119  X.  Y.  226,  16  Am.  St.  Rep.  813,  23  H. 
E.  878. 

Affirmed  in  152  U.  S.  133,  38  L.  ed.  385,  14  Sup.  Ct,  Rep.  499. 
Police  power. 

Cited  in  State  v.  Dow,  70  X.  H.  287,  53  L.  R.  A.  315,  47  Atl.  734,  holding  stat- 
ute forbidding  catching  of  trout  in  local  waters  with  intent  to  sell  same,  con- 
stitutional; State  v.  Lewis,  134  Ind.  256,  20  L.  R.  A.  55,  33  N.  E.  1024,  holding 
statute  declaring  possession  of  gill  nets  or  seine,  misdemeanor,  constitutional : 
People  v.  Rosenberg,  67  Hun,  60,  22  X.  Y.  Supp.  56,  holding  statute  declaring 
fat  rendering  nuisance,  and  prohibiting  same  within  municipal  limits,  valid; 
Warner  v.  Stebbins,  111  Iowa,  88,  82  X.  W.  457,  holding  township  health  board 
may  restrain  establishment  of  municipal  pest  house  within  limits  without  proof 
of  nuisance;  People  v.  Hawkins,  157  X.  Y.  8,  42  L.  R.  A.  494,  68  Am.  St.  Rep. 
736,  51  X.  E.  257,  holding  statute  forbidding  sale  of  convict-labor  products  except 
where  labeled,  void  as  interference  with  interstate  commerce;  People  v.  Buffalo 
Fish  Co.  104  X.  Y.  112,  52  L.  R.  A.  810,  79  Am.  St.  Rep.  622,  58  X.  E.  34  (dis- 
senting opinion),  majority  holding  statute  prohibiting  possession  of  certain  fish 
during  close  season  applies  only  to  those  caught  in  local  waters;  People  v.  Pier- 
son,  176  X.  Y.  211,  63  L.  R.  A.  192,  98  Am.  St.  Rep.  666,  68  N.  E.  243,  holding 
constitutional,  statute  making  it  a  misdemeanor  to  refuse  to  provide  medical  at- 
tendance for  a  minor;  Xew  Orleans  v.  Charouleau,  121  La.  893,  18  L.R.A. (X.S. ) 
370,  126  Am.  St.  Rep.  332,  46  So.  911,  15  A.  &  E.  Ann.  Cas.  46,  on  the  right 
of  a  state  to  destroy  private  property  without  compensation  which  has  become 
or  is  a  public  nuisance;  State  v.  Chicago,  M.  &  St.  P.  R.  Co.  114  Minn.  126, 
33  L.R.A.  (X.S.)  497,  130  X.  W.  .34.5,  Ann.  Cas.  1912  B.  1030,  holding  that  ordi- 
nance tending,  to  prevent  smoke  nuisance  by  prohibiting  use  of  soft  coal  is  con- 
stitutional; State  v.  Tower,  185  Mo.  92,  68  L.R.A.  406,  84  S.  W.  10,  holding 


7  L.E.A.  134]  L.  R.  A.  CASES  AS  AUTHORITIES.  1244" 

a  statute  prohibiting  emission  of  smoke  in  dense  volumes  within  city  limits,  as  a 
nuisance  a  valid  use  of  state  police  power;  People  ex  rel.  Silz  v.  Hesterbeig,  109 
App.  Div.  306,  96  N.  Y.  Supp.  286  (dissenting  opinion),  on  the  scope  of  police 
power  of  state;  People  v.  Bootman,  180  N.  Y.  9,  72  N.  E.  505,  2  A.  &  E.  Ann.  Gas. 
226,  19  N.  Y.  Grim.  Rep.  35,  holding  the  enactment  of  laws  prohibiting  the  catch- 
ing and  sale  of  fish  within  stipulated  seasons  is  properly  within  police  power  of 
state;  Shelby  v.  Cleveland  Mill  &  Power  Co.  155  X.  C.  200,  35  L.R.A.(N.S.) 
490,  71  S.  E.  218,  Ann.  Gas.  1912C,  179,  holding  that  statute  regulating  sewers 
discharging  into  any  "drain,  creek,  or  river  from  which  public  drinking-water 
supply  is  taken"  is  within  police  power  of  legislature;  Kuchler  v.  Weaver,  23 
Okla.  438,  100  Pac.  915,  on  the  scope  of  the  police  power  and  abatement  of 
public  nuisance  thereunder  by  summary  proceedings;  Lowe  v.  Conroy,  120  Wis. 
155,  66  L.R.A.  909,  102  Am.  St.  Rep.  983,  97  N.  W.  942,  1  A.  &  E.  Ann.  Gas. 
341,  holding  that  diseased  cattle  a  source  of  danger  to  public  health  may  be- 
destroyed  without  compensation  tinder  police  power;  North  American  Cold 
Storage  Co.  v.  Chicago,  211  U.  S.  316,  53  L.  ed.  200,  29  Sup.  Ct.  Rep.  101,  IS- 
A.  &  E.  Ann.  Cas.  276,  holding  state  has  power  to  seize  and  destroy  unwhole- 
some food  without  notice  or  hearing  and  the  owner  may  bring  action  for  damages 
after  destruction  though  the  health  officers  declared  the  food  unwholesome. 

Cited  in  footnotes  to  Com.  v.  Manchester,  9  L.  R.  A.  236,  which  holds  state  may 
regulate  fishing  in  bay  within  its  borders;  People  v.  Bridges,  16  L.  R.  A.  684, 
which  upholds  prohibition  of  fishing  with  seine  in  lake  on  private  land  during 
part  of  year;  Peters  v.  State,  33  L.  R.  A.  114,  which  holds  valid  as  to  private- 
lake  act  regulating  mode  of  taking  fish;  Com.  v.  Brown,  28  L.  R.  A.  110,  which 
sustains  weekly  tax  on  sales  of  oysters;  State  v.  Harrub,  15  L.  R.  A.  761,  which 
holds  statute  prohibiting  shipment  of  oysters  in  shells  from  state  not  interference- 
with  commerce;  State  v.  Mrozinski,  27  L.  R.  A.  76,  which  holds  absolute  prohibi- 
tion against  taking  fish  otherwise  than  by  hook  and  line  with  specified  exceptions, 
valid;  State  v.  McGuire,  21  L.  R.  A.  478,  which  holds  having  in  possession  during 
close  season  fish  previously  caught  not  an  offense. 

Cited  in  notes  (39  L.  R.  A.  586,  588)  on  government  control  over  right  of 
fishery;  (9  L.  R.  A.  807)  on  fishery  rights;  (8  L.  R.  A.  449)  on  property  in: 
ferce  natures;  (36  L.  R.  A.  593,  598)  on  power  of  municipal  corporation  to  de- 
fine, prevent,  and  abate  nuisances;  (42  Am.  St.  Rep.  138)  on  game  laws;  (78 
Am.  St.  Rep.  239,  256,  257 )  on  acts  which  legislature  may  declare  criminal. 
Due  process  of  law. 

Followed  in  State  v.  French,  71  Ohio  St.  200,  104  Am.  St.  Rep.  770.  73  N.  E. 
216,  1  A.  &  E.  Ann.  Cas.  948,  holding  that  a  statute  providing  for  destruction 
of  nets  used  for  illegal  fishing  is  constitutional. 

Cited  in  Bittenhaus  v.  Johnston,  92  Wis.  598,  32  L.  R.  A.  383,  66  X.  W.  805r 
and  Osborn  v.  Charlevoix  Circuit  Judge,  114  Mich.  665,  72  X.  W.  !>82,  holding 
statute  authorizing  summary  destruction  by  warden  of  fish  nets  used  in  violation* 
of  law,  constitutional;  Colon  v.  Lisk,  13  App.  Div.  199,  43  X.  Y.  Supp.  364,  hold- 
ing statute  authorizing  summary  seizure  of  boat  used  in  unlawfully  disturbing 
oysters,  constitutional;  Egan  v.  Health  Department,  20  Misc.  40,  79  X.  Y.  S.  R. 
327,  45  N.  Y.  Supp.  325,  upholding  statute  authorizing  health  board  to  order 
vacation  of  unsanitary  premises  where  such  order  not  final;  Cartwright  v.  Cohoes,. 
39  App.  Div.  72,  56  X.  Y.  Supp.  731,  refusing  to  enjoin  summary  destruction  of 
privy  by  board  of  health  under  ordinance  declaring  same  nuisance;  Hempstead  v. 
Ball  Electric  Light  Co.  9  App.  Div.  51,  41  X.  Y.  Supp.  124,  holding  village  trus- 
tees authorized  by  statute  to  maintain  action  to  compel  removal  of  electric-wire 
poles  constituting  nuisance;  Re  Kenny,  23  Misc.  14,  49  X.  Y.  Supp.  1037,  holding 
provision  for  penalty  dependent  upon  decision  of  prison  official  as  to  identity  of 


1245  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  134 

prisoner,  without  hearing,  unconstitutional;  Garland  Novelty  Co.  v.  State,  71 
Ark.  142,  "IS.  W.  257,  upholding  constitutionality  of  statute  authorizing  sum- 
mary destruction  of  gambling  devices;  People  v.  Booth  &  Co.  42  Misc.  326,  86 
X.  Y.  Supp.  272,  holding  unconstitutional,  statute  prohibiting  possession  of  im- 
ported fish  or  game  during  close  season;  Rockefeller  v.  Lamora,  85  App.  Div. 
263,  83  X.  Y.  Supp.  289,  denying  right  of  public  to  fish  in  waters  running  through 
private  park,  although  stocked  by  state;  Mullen  v.  Moseley,  13  Idaho,  465.  12 
L.R.A.(X.S-)  398,  121  Am.  St.  Rep.  277,  90  Pac.  986,  13  A.  &  E.  Ann.  Gas. 
450,  holding  anti-gambling  law  not  in  conflict  with  the  "due  process"  clause  of 
constitution;  McConnell  v.  McKillip,  71  Xeb.  715,  65  L.R.A.  613,  115  Am.  St. 
Rep.  614,  99  N.  W.  505,  8  A.  &  E.  Ann.  Cas.  898,  holding  an  act  authorizing 
the  destruction  of  nets  found  on  shore  unconstitutional  since  nets  are  not  a 
nuisance  unless  in  the  water;  Williams  v.  Rivenburg,  145  App.  Div.  100,  129 
X.  Y.  Supp.  473,  holding  that  statutes  under  which  property  may  be  destroyed 
in  abatement  of  nuisance,  and  which  do  not  provide  for  compensation  are  not 
unconstitutional  as  providing  for  taking  property  for  public  use  without  com- 
pensation; Clement  v.  Certain  Intoxicating  Liquors,  62  Misc.  30,  115  N.  Y. 
Supp.  162,  holding  a  taking  or  destruction  of  beer  bottles  belonging  to  an  inno- 
cent person  where  they  contain  beer  belonging  to  another  which  has  been  declared 
a  nuisance  is  a  taking  without  due  process  of  law;  Daniels  v.  Homer,  139  X.  C. 
224,  3  L.R.A.(X.S.)  1000,  51  S.  E.  992,  holding  an  act  authorizing  confiscation 
of  fish  nets  illegally  used  not  to  be  in  violation  of  "due  process  clause,"  since 
the  owner  could  enjoin  destruction  or  sale  or  have  damages  for  such  acts  if 
the  seizure  was  not  justified. 

Cited  in  footnotes  to  Eichenlaub  v.  St.  Joseph,  18  L.  R.  A.  590,  which  holds 
no  judicial  proceeding  necessary  to  authorize  tearing  down  of  wooden  building 
within  fire  limits;  State  v.  Robbins,  8  L.  R.  A.  438,  which  refuses  to  direct  sum- 
mary destruction  of  gaming  devices  seized. 

Cited  in  notes  (19  L.  R.  A.  197)  on  right  to  compensation  for  property  de- 
stroyed in  abating  public  nuisance;  (36  L.  R.  A.  606)  on  extent  of  municipal 
right  to  take  or  destroy  property  in  abatement  of  nuisance;  (38  L.  R.  A.  167) 
on  municipal  power  over  buildings  and  other  structures  as  nuisances;  (9  L.  R.  A. 
716)  on  abatement  of  nuisance  by  action. 

Distinguished  in  Colon  v.  Lisk,  153  X.  Y.  195,  60  Am.  St.  Rep.  609,  47  X.  E. 
-302,  Affirming  13  App.  Div.  202,  43  X.  Y.  Supp.  364,  denying  power  of  legislature 
to  arbitrarily  provide  for  forfeiture  to  state  of  any  boat  used  in  interfering  with 
oysters  or  other  shell  fish  of  another;  Josh  v.  Marshall.  33  App.  Div.  79,  53  X.  Y. 
Supp.  419,  holding  seizure  of  iy8-inch  bar  nets  used  more  than  1  mile  from  shore 
not  justified  under  fisheries  statute  making  use  within  1  mile  nuisance ;  Fox  v. 
Mohawk  &  H.  River  Humane  Soc.  25  App.  Div.  29,  48  X.  Y.  Supp.  625,  Reversing 
20  Misc.  467,  46  X.  Y.  Supp.  232,  holding  statute  subjecting  unlicensed  dog  to 
summary  destruction  unconstitutional  where  not  declared  nuisance;  Xew  York 
Sanitary  Utilization  Co.  v.  Health  Department,  61  App.  Div.  113,  70  X.  Y.  Supp. 
510,  holding  statute  declaring  boiling  garbage  within  city  limits  unlawful,  void 
where  not  actually  nuisance;  People  ex  rel.  Copcutt  v.  Board  of  Health,  140  X.  Y. 
10,  23  L.  R.  A.  484,  37  Am.  St.  Rep.  522,  35  X.  E.  320,  holding  board  of  health 
liable  for  destruction  of  dam  unless  same  in  fact  nuisance;  Houston  v.  State,  98 
Wis.  486.  42  L.  R.  A.  48,  74  X.  W.  Ill,  holding  destruction  of  healthy  animals 
under  statute  against  diseased  does  not  found  statutory  "claim  against  state;" 
Chicago  &  E.  R.  Co.  v.  Keith.  67  Ohio  St.  293,  60  L.  R.  A.  530,  65  X.  E.  1020, 
holding  unconstitutional  statute  requiring  railroads  to  construct  ditches  by  side 
of  roadbed. 


7  L.R.A.  134]  L.  R.  A.  CASES  AS  AUTHORITIES.  1246: 

Construction  of  statutes. 

Cited  in  People  ex  rel.  Holmes  v.  Lane,  53  App.  Div.  536/65  N.  Y.  Supp.  1004, 
holding  statute  creating  office  of  police  justice  not  void  in  toto  by  reason  of  un- 
constitutional provision  for  exclusive  jurisdiction;  Rathbone  v.  Wirth,  150  X.  \.. 
479,  34  L.  R.  A.  416,  45  N.  E.  15,  holding  unconstitutional  provision  disqualifying 
party  for  office  unless  member  of  particular  political  party  renders  statute  pro- 
viding for  bipartisan  police  board,  void;  Newman  v.  People.  23  Colo.  308,  47  Pac. 
278,  holding  statute  authorizing  seizure  of  gambling  devices  without  notice  con- 
stitutional, irrespective  of  validity  of  section  authorizing  destruction  thereof;  Re 
Burger,  21  Misc.  372,  47  N.  Y.  Supp.  292,  holding  provision  relating  to  present 
incumbent  fails  where  part  of  unconstitutional  act  extending  term  of  officer; 
Hennessey  v.  Volkening,  30  Abb.  N.  C.  Ill,  22  N.  Y.  Supp.  534,  construing  statute 
providing  for  collection  of  water  rents  from  all  buildings  on  street  supplied  with 
distributing  pipes,  to  authorize  collection  only  from  premises  using  water. 

Cited  in  notes   (10  L.  R.  A.  196)   on  partial  invalidity  of  statutes;    (11  L.  R. 
A.  583)   on  construction  of  redelegated  powers. 
Lake  Ontario. 

Cited  in  People  v.  Featherly,  35  N.  Y.  S.  R.  159,  12  N.  Y.  Supp.  389,  holding 
Great  Sodus  bay  part  of  Lake  Ontario  within  exemption  of  statute  regulating 
duck  shooting. 
Remedies  for  abatement   of   nuisance. 

Cited  in  Detroit  Mineral  Bath  Co.  v.  Stroh  Brewery  Co.  151  Mich.  557,  115 
N.  W.  717,  holding  a  summary  abatement  of  a  nuisance  not  ground  for  refusal 
of  an  injunction  to  prevent  a  threatened  revival  thereof. 

Cited  in  note   (28  Am.  St.  Rep.  198)  on  injunction  against  nuisance  as  request 
of  private  person. 
Declaration  of  public  nuisance. 

Cited  in  Clement  v.  May,  136  App.  Div.  201,  120  N.  Y.  Supp.  588,  on  the 
state's  right  to  add  to  the  list  of  public  nuisances;  Re  Jones,  4  Okla.  Grim. 
Rep.  78,  31  L.R.A.(N.S.)  551,  140  Am.  St.  Rep.  655.  109  Pac.  570,  holding  that 
legislature  has  power  to  declare  what  shall  constitute  nuisance  and  is  not  re- 
stricted to  declaring  only  such  things  nuisance  as  were  so  at  common  law  or 
are  so  per  se. 

Cited  in  notes   (20  Am.  St.  Rep.  136)   on  power  to  declare  what  are  nuisances; 
(107  Am.  St.  Rep.  202,  236)   on  what  are  public  nuisances. 
Abatement  of  public   nuisance. 

Cited   in   Yonkers   v.   Federal   Sugar   Ref.    Co.   136   App.   Div.   704,   121   N.  Y. 
Supp.  494,   holding  public  nuisance  may  only  be  abated  by  public  except  where 
private  individual  sustains  some  special  injury  he  may  abate. 
—  Limited  by  necessity. 

Cited  in  Daniels  v.  Homer,  139  N.  C.  246,  3  L.R.A.  (N.S.)    1008,  51  S.  E.  992 
(dissenting  opinion),  on  the  right  to  seize  and  destroy  fish  nets  as  being  based 
on  and  only  required  by  necessity. 
Legislative  power. 

Cited  in  Saratoga  Springs  v.  Saratoga  Gas,  Electric  Light,  Heat  &  P.  Co. 
191  N.  Y.  134,  18  L.R.A.  (N.S.)  719,  83  N.  E.  693,  14  A.  &  E.  Ann.  Cas.  606; 
Re  Fenton,  58  Misc.  309,  109  N.  Y.  Supp.  321, — on  the  province  of  the  legislature 
as  limited  by  state  and  federal  constitutions  and  the  other  departments  of 
government. 

7  L.  R.  A.  139,  RAPPLEYE  v.  RACINE  SEEDER  CO.  79  losva,  220,  44  N.  W.  363. 
Rigrbt   to  nssigrn   contract. 

Cited  in  Worden  v.  Chicago  &  N.  W.  R.  Co.  82  Iowa,  735,  48  N.  W.  71,  holding 


1247  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  149 

contract  to  furnish  coal  not  in  law  assignable;  Jackson  v.  Sessions,  109  Mich. 
222,  67  N.  W.  315,  holding  assignment  by  subvendees  of  rights  in  contract  for 
purchase  of  timber  void  as  between  assignee  and  original  vendor;  D.  C.  Hardy 
Implement  Co.  v.  South  Bend  Iron  Works,  129  Mo.  230,  31  S.  W.  599,  holding 
executory  contract  with  partnership  may  be  repudiated  by  person  contracting 
with  firm,  upon  one  partner  withdrawing  therefrom;  Sargent  Glass  Co.  v.  Mat- 
thews Land  Co.  35  Ind.  App.  55,  72  N.  E.  474,  holding  a  contract  by  land  com- 
pany on  a  conveyance  of  land  to  give  to  its  grantee  for  manufacturing  purposes 
free  gas,  so  long  as  such  gas  could  be  obtained  from  grantors  land  is  not  as- 
signable. 

7  L.  R.  A.  143,  PATTERSON  v.  LECKIE,  83  Ga.  703,  10  S.  E.  355. 
Power  of  appointment. 

Cited  in  Stearns  v.  Fraleigh,  39  Fla.  616,  39  L.  R.  A.  709,  23  So.  18,  holding 
power  of  beneficiary  in  deed  to  appoint  trustee  possesses  none  of  the  elements  of 
an  estate;  Tuell  v.  Hurley,  206  Mass.  68,  91  N.  E.  1013,  to  the  point  that 
individual  estate  of  donee  of  power  must  first  be  exhausted  before  creditors 
can  reach  any  part  of  estate  appointed. 

Cited  in  footnote  to  Cotting  v.  De  Sartiges,  16  L.  R.  A.  367,  which  holds  intent 
to  execute  power  of  appointment  not  shown  by  will  not  referring  to  power. 

Cited  in  note  (21  Eng.  Rul.  Cas.  585)  on  executed  general  power  as  assets 
for  payment  of  debts  of  deceased  donee  of  the  power. 

7  L.  R.  A.  145,  THOMAS  v.  W ABASH,  ST.  L.  &  P.  R.  CO.  40  Fed.  126. 
Statutes  partly  good  and  partly  bad. 

Cited  in  note  (10  L.  R.  A.  196)  on  statutes  valid  in  part  and  invalid  in  part. 
Special   and   exclusive   privileges. 

Cited  in  note    (14  L.  R.  A.  582)    on  constitutional  equality  of  privileges,  im- 
munities, and  protection. 
Title  of  statute. 

Cited  in  People  v.  Pease,  3  111.  C.  C.  72,  holding  an  act  to  regulate  personal 
rights  and  privilege  under  the  guise  of  a  police  regulation  as  indicated  by  the 
title  is  void. 

Cited  in  note   (64  Am.  St.  Rep.  104)   on  sufficiency  of  title  of  statute. 

7  L.  R.  A.  149,  WOOD  v.  ST.  PAUL  CITY  R.  CO.  42  Minn.  411,  44  N.  W.  308. 
Authenticated  affidavits  from  another  state. 

Cited  in  Duggan  v.  Washougal  Land  &  Logging  Co.  10  Wash.  85,  38  Pac.  856, 
holding  verification  of  lien  before  notary  of  another  state  certifying  to  jufat  suf- 
ficient; Hickey  v.  Collom,  47  Minn.  568,  50  N.  W.  918,  holding  authentication  of 
affidavit  by  clerk  of  court  of  another  state  incomplete;  lie  Pancoast,  129  Fed. 
645,  holding  signature  and  seal  sufficient  proof,  in  first  instance,  of  official  char- 
acter of  notary  out  of  state;  Simpson  v.  Wicker,  120  Ga.  420,  47  S.  E.  965,  1 
A.  &  E.  Ann.  Cas.  542,  holding  that  an  affidavit  in  forma  pauperis  made  before 
a  notary  in  a  foreign  state,  and  authenticated  by  his  seal,  was  sufficient; 
Genest  v.  Las  Vegas  Masonic  Bldg.  Asso.  11  X.  M.  267,  67  Pac.  743,  holding  that 
where  it  appeared  that  the  verification  to  a  lien  statement  was  made  by  the 
clerk  of  the  court,  who  had  general  powers  to  administer  oaths,  in  a  neighboring 
state,  the  verification  was  sufficient. 

Cited  in  note  (38  L.  R.  A.  411)  on  mechanic's  lien  under  contract  made  or  per- 
formed in  another  state. 


7  L.R.A.  151]  L.  R.  A.  CASES  AS  AUTHORITIES.  1248 

7  L.  R.  A.  151,  MOORE  v.  SANFORD,  151  Mass.  285,  24  N.  E.  323. 
Pendency  of  condemnation  proceedings  us  affecting:   rights. 

Cited  in  Newburyport  Water  Co.  v.  Newburyport,  85  Fed.  726,  holding  water 
company  having  petitioned  state  court  for  appraisal  of  its  property  for  public 
use  can  apply  to  Federal  court  to  test  validity  of  statute;  Norcross  v.  Cam- 
bridge, 166  Mass.  510,  33  L.  R.  A.  843,  44  N.  E.  615,  holding  pendency  of  pe- 
tition for  damages  for  taking  land  does  not  prevent  action  to  determine  valid- 
ity of  act  for  taking;  Boston  &  M.  R.  Co.  v.  Graham,  179  Mass.  67,  60  N.  E.  405, 
holding  lessee  of  railroad  petitioning  for  determination  of  value  of  stock  of  dis- 
senting stockholders  of  lessor  not  bound  to  admit  right  to  dissent;  Mountain 
Park  Terminal  R.  Co.  v.  Field,  76  Ark.  244,  88  S.  W.  897,  holding  that  the 
owner  of  land  which  is  in  process  of  being  condemned  for  a  public  use  may  have 
resort  to  a  court  of  equity  on  the  issue  as  to  whether  the  proposed  use  is  public; 
Portneuf  Irrigating  Co.  v.  Budge,  16  Idaho,  131,  100  Pac.  1046,  holding  that 
the  question  as  to  necessity  of  condemnation  should  be  determined  before  insti- 
tution of  the  inquisition  to  ascertain  damages  and  compensation;  Gordon  v. 
Richardson,  185  Mass.  496,  69  L.R.A.  870,  70  N.  E.  1027,  on  the  right  to  file 
petition  for  damages  and  concurrently  question  the  legality  of  the  taking. 
Legislative  determination  of  necessity  to  take  land  for  public  nse. 

Cited  in  Butte,  A.  &  P.  R.  Co.  v.  Montana  Union  R.  Co.  16  Mont.  529,  31  L. 
R.  A.  306,  50  Am.  St.  Rep.  508,  41  Pac.  232,  holding  necessity  to  take  property 
for  railroad  follows  from  determination  that  it  is  for  public  use;  Re  Kingman, 
153  Mass.  572,  12  L.  R.  A.  421,  27  N.  E.  778,  holding  determination  by  legisla- 
ture that  sewage  system  necessary  for  certain  territory  conclusive;  Connecticut 
River  Lumber  Co.  v.  Olcott  Falls  Co.  65  N.  H.  388,  13  L.  R.  A.  836,  21  Atl. 
1090,  holding  abandonment  by  state  of  public  right  to  float  logs  "down  a  stream 
when  it  grants  a  manufacturing  company  the  right  to  use  the  water  power  there- 
on, not  inferable  from  fact  that  the  manufacturing  business  is  the  more  import- 
ant; Ulmer  v.  Lime  Rock  R.  Co.  98  Me.  591,  66  L.  R.  A.  393,  57  Atl.  1001,  up- 
holding right  of  railroad  company  to  condemn  land  for  purpose  of  building 
branch  track  to  quarry. 

Cited  in  note  (8  L.  R.  A.  58)   on  right  of  eminent  domain. 
Public  nse. 

Cited  in  Opinion  of  Justices,  204  Mass.  613,  27  L.R.A.  (N.S.)  486,  91  N.  E. 
405,  holding  the  use  of  property  by  a  city  for  future  profit  and  income  is  not 
a  public  use;  Boston  v.  Talbot,  206  Mass.  89,  91  N.  E.  1014,  holding  that  ques- 
tion whether  use  for  which  land  is  taken  is  public  use  is  judicial  question; 
Minnesota  Canal  &  Power  Co.  v.  Koochiching  Co.  97  Minn.  446,  5  L.R.A.  (N.S.) 
646,  107  N.  W.  405,  7  A.  &  E.  Ann.  Cas.  1182,  holding  that  it  is  no  objection 
to  a  taking  for  a  public  use  that  incidental  and  private  advantage  will  result  to 
the  petitioner. 

Cited  in  notes  (88  Am.  St.  Rep.  935)  on  existence  of  public  use  as  question 
for  courts;  (102  Am.  St.  Rep.  818)  on  uses  for  which  power  of  eminent  domain 
cannot  be  exercised;  (21  L.R.A. (N.S.)  542)  on  eminent  domain;  combination 
of  public  and  private  uses;  (22  L.R.A. (N.S.)  49)  on  extent  of  user  as  affecting 
public  nature  of  use. 
Judicial  power  over  eminent  domain. 

Cited  in  note   (22  L.R.A.(N.S.)    3,  53,  65,  81)   on  judicial  power  over  eminent 
domain. 
Bringing;  of  suit  as  election  of  remedies. 

Cited  in  note  (34  L.R.A.  (N.S.)  312)  on  bringing  suit  not  prosecuted  to  judg- 
ment as  election  of  remedies. 


1249  L.  R.  A.  CASES  AS  AUTHORITTES.  [7  L.R.A.  150 

7  L.  R.  A.  154,  RAMSDELL  v.  NEW  YORK  &  N.  E.  R.  CO.  151  Mass.  245,  23 

N.  E.   1103. 
Construction   of   Massachusetts   employer's  liability   act. 

Cited  in  Clark  v.  New  York,  P.  &  B.  R.  Co.  160  Mass.  41,  35  N.  E.  104,  hold- 
ing administrator  no  right  of  action  for  instant  death  of  intestate,  without  widow 
or  dependent  next  of  kin;  Gustafsen  v.  Washburn  &  M.  Mfg.  Co.  153  Mass.  471, 
27  X.  E.  179,  holding  widow  only  person  who  could  maintain  action  for  negli- 
gent instantaneous  killing  of  her  husband;  Dacey  v.  Old  Colony  R.  Co.  153  Mass. 
118,  26  N.  E.  437,  holding  action  not  maintainable  under  statute  of  1887,  for  death 
<lue  to  negligence  of  coemployee;  Daly  v.  New  Jersey  Steel  &  I.  Co.  155  Mass. 
5,  28  N.  E.  1056,  holding  action  for  instantaneous  killing  of  unmarried  man 
should  be  brought  in  name  of  dependent  next  of  kin  only;  Vetaloro  v.  Perkins. 
101  Fed.  394,  holding  nonresident  alien  widow  not  debarred  from  right  of  action 
under  liability  act  of  1887;  Smith  v.  Thomson-Houston  Electric  Co.  188  Mass. 
376,  74  N.  E.  664,  holding  that  statute  made  no  provision  for  recovery  by  widow 
or  dependents  for  negligent  death  of  servant  where  death  was  not  instantaneous 
or  without  regaining  consciousness. 
Action,  for  death. 

Cited  in  note  (17  L.  R.  A.  77)  on  measure  of  recovery  for  death  caused  by  neg- 
ligence. 

7  L.  R.  A.  156,  BATES  v.  WESTBOROUGH,  151  Mass.  174,  23  N.  E.  1070. 
Liability  of  private  person  for  discharge  of  surface  water  upon  another's 
land. 

Cited  in  Fitzpatrick  v.  Welch,  174  Mass.  486,  48  L.  R.  A.  279,  55  N.  E.  178, 
•upholding  judgment  for  damages  for  discharge  of  water  from  defendant's  gut- 
ter upon  plaintiff's  land;  Smith  v.  Faxon,  156  Mass.  596,  31  N.  E.  687,  holding 
private  landowner  cannot  collect  surface  water  into  definite  channel  and  dis- 
charge it  on  neighbor's  land;  Hynes  v.  Brewer,  194  Mass.  440,  9  L.R.A. (N.S. ) 
600,  80  N.  E.  503,  holding  defendant  liable  to  one  sustaining  personal  injury 
from  an  accumulation  of  ice  on  sidewalk  caused  by  artificial  discharge  of  water 
from  his  premises. 

Cited   in   note    (18   Eng.   Rul.   Cas.   725)    on  liability   for   injury   to  neighbor 
from  improper  use  of  one's  own  land. 
Stopping   up   drains   of   landowners. 

Cited  in  O'Brien  v.  Worcester,  172  Mass.  353,  52  N.  E.  385,  upholding  action  for 
damages  for  backing  up  of  water  upon  plaintiff's  premises  due  to  walling  up  of 
old  sewer. 
Surface  waters. 

Cited  in  Champion  v.  Crandon,  84  iVis.  410,  19  L.  R.  A.  857,  54  N.  W.  775, 
holding  action  not  maintainable  for  damages  due  to  diversion  of  surface  water  by 
change  of  street  grade;  Collins  v.  Waltham,  151  Mass.  198,  24  N.  E.  327,  holding 
city  not  liable  for  overflow  of  surface  waters  from  gutters  upon  adjacent  land; 
Byrne  v.  Farmington,  64  Conn.  374,  30  Atl.  138,  holding  town  not  obliged  to 
keep  open  surface-water  sluiceway  across  roadway;  Lynch  v.  Clarke,  25  R.  I. 
502,  56  Atl.  779,  on  liability  of  city  for  artificial  stoppage  of  flow  of  water. 
Statutory  remedies. 

Distinguished  in  Woodbury  v.  Beverly.   153  Mass.  247,  26  N.  E.  851,  holding 

municipality   liable    for   affecting   flow   of   surface   water   from    land   by   change 

of  street  grade;  Holleran  v.  Boston.  176  Mass.  77,  57  X.  E.  220,  holding  remedy 

for  changing  flow  of  surface  water  by  changes  for  park  purposes,  to  be  statutory. 

L.R.A.  Au.  Vol.  I.— 79. 


7  L.R.A.  156]  L.  R.  A.  CASES  AS  AUTHORITIES. 

Liability  of  city   for   iiuisanoo. 

Cited  in  Nevins  v.  Fitchburg,  174  Mass.  550,  47  L.  R.  A.  314,  55  N.  E.  321, 
holding  city  liable  for  nuisance  caused  by  ending  sewer  in  private  tailrace  under 
culvert  in  road. 

Cited  in  footnotes  to  Miles  v.  Worcester,  13  L.  R.  A.  841,  which  holds  city 
liable  for  encroachment  by  retaining  wall  on  filling  school  yard;  Long  v.  Elberton, 
46  L.  R.  A.  428,  which  denies  liability  of  city  to  neighboring  property  owners 
for  erection  of  prison  within  city  limits  unless  so  negligently  maintained  as  to 
constitute  nuisance;  Hughes  v.  Auburn,  46  L.  R.  A.  636,  which  denies  city's  lia- 
bility for  disease  due  to  neglect  of  proper  sanitary  precautions  as  to  sewer 
system;  Duncan  v.  Lynchburg,  48  L.  R.  A.  331,  which  denies  city's  liability  for 
nuisance  by  pollution  of  water  in  unauthorized  operation  of  rock  quarry  outside 
city  limits. 
Liability  of  city  as  to  sewers. 

Cited  in  Roberts  v.  Dover,  72  N.  H.  154,  55  Atl.  895,  holding  city  liable  for 
injury  to  private  property  from  overflow  of  sewer;  Lockwood  v.  Dover,  73  N, 
H.  212,  61  Atl.  32,  holding  city  liable  for  negligent  construction  of  sewer  under 
a  statute  providing  that  city  be  paid  for  use  of  sewer  connections  and  where 
persons  specially  benefited  must  pay  for  same. 

Cited  in  footnote  to  Nevins  v.  Fitchburg,  47  L.  R.  A.  312,  which  denies  city's 
right  to  discharge  sewer  into  tailrace. 

Cited  in  notes  (61  L.R.A.  684,  698)  on  duty  and  liability  of  municipality  with 
respect   to   drainage;     (29   Am.   St.   Rep.   647,   741)    on   municipal    liability   for 
defects  in  and  want  of  repair  of  sewers. 
Defects   in   plan   of   construction. 

Cited  in  Buckley  v.  New  Bedford,  155  Mass.  66,  29  N.  E.  201,  holding  land- 
owner draining  into  sewer  by  permit  could  not  recover  against  city  for   sewer 
water  backing  into  cellar. 
Work  of  construction  and  repair. 

Cited  in  Melrose  v.  Hiland,  163  Mass.  309,  39  N.  E.  1031,  holding  power  and 
duty  of  town  to  repair  common  drain  through  private  land  same  as  if  in  high- 
way; Norton  v.  New  Bedford,  166  Mass.  51,  43  N.  E.  1034,  holding  city  re- 
sponsible for  personal  injury  due  to  negligence  of  its  officials  in  construction  of 
sewer;  Allen  v.  Boston,  159  Mass.  336,  38  Am.  St.  Rep.  423,  34  N.  E.  519; 
Hamlin  v.  Biddeford,  95  Me.  315,  49  Atl.  1100,  holding  city  liable  for  damages 
due  to  failure  to  keep  sewer  in  repair;  Bryant  v.  Westbrook,  86  Me.  455,  29 
Atl.  1109,  holding  municipal  officers  assuming  construction  and  repair  of  high- 
ways act  as  public  officers;  Melrose  v.  Hiland,  163  Mass.  309,  39  N.  E.  1031, 
holding  that  care  of  drain  is  upon  municipality,  and  that  officials  act  as  its 
agents. 

Distinguished  in  Hewett  v.  Canton,  182  Mass.  224,  65  N.  E.  42,  holding  town 
not   liable   for   damages   from   surface   water   caused   by   construction    of    street 
railway,  under  permit  from  selectmen. 
Liability  for  damages  resulting:  front   performance   of  public   duty. 

Cited  in  Hughes  v.  Monroe  County,  79  Hun,  126,  29  N.  Y.  Supp.  495,  holding 
county  not  liable  for  negligent  injury  to  servant  employed  in  insane  asylum; 
Workman  v.  New  York,  63  Fed.  302,  holding  city  fire  boat  by  duty  to  extinguish 
fires,  not  absolved  from  use  of  ordinary  care  to  prevent  collision;  Howard  v. 
Worcester,  153  Mass.  428,  12  L.  R.  A.  161,  25  Am.  St.  Rep.  651,  27  N.  E. 
11,  holding  city  in  building  schoolhouse  not  liable  for  negligent  injury  to  trav- 
eler upon  adjoining  highway;  Lenzen  v.  New  Braunfels,  13  Tex.  Civ.  App.  369, 


1251  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  162 

35    S.    W.    341,   holding   city   liable   for   negligence    in   maintaining   waterworks 
preventing  fire  from  being  extinguished. 
Liability   of   municipality   for   negligence. 

Cited  in  Johnson  v.  Somerville,  195  Mass.  382,  10  L.R.A. (N.S.)  721,  81  N.  E. 
268,  holding  city  liable  for  injury  to  third  person  whether  the  injury  was  caused 
by  negligent  act  of  workman  or  by  actual  wrong  intent;  Smith  v.  Gloucester, 
201  Mass.  334,  87  X.  E.  626,  on  nonliability  of  town  for  negligence  of  highway 
surveyors. 

Cited  in  footnote  to  Snider  v.  St.  Paul,  18  L.  R.  A.  151,  which  holds  city 
not  liable  for  negligence  of  agents  in  providing  and  maintaining  city  hall. 

Cited  in  notes  (9  L.  R.  A.  210)  on  liability  of  municipality  for  neglect  of  its 
officers  or  agents;  (19  L.  R.  A.  454)  on  distinction  between  public  and  private 
functions  of  municipal  corporations  as  to  liability  for  negligence. 

7  L.  R.  A.  160,  JAY  COUNTY  v.  TAYLOR,  123  Ind.  148,  23  N.  E.  752. 
Contract  by  public  officers  outrunning  their  terms. 

Cited  in  Henderson  v.  Xew  York,  65  App.  Div.  183,  72  N.  Y.  Supp.  609,  hold- 
ing city  not  liable  to  attorney  employed  by  toAvn  three  days  before  annexation 
to  city  to  test  validity  of  annexation  act ;  Liggett  v.  Kiowa  County,  6  Colo.  App. 
273,  40  Pac.  475.  holding  contract  of  county  board  employing  purchasing  agent 
for  year  valid  though  some  of  board  went  out  of  office  before  time  of  con- 
tract ended;  State  ex  rel.  Scott  v.  Hart,  144  Ind.  Ill,  33  L.  R.  A.  121,  43  N. 
E.  7,  holding  county  commissioners  cannot  rent  rooms  in  courthouse  to  private 
use  for  term  of  years;  Taylor  v.  Bosworth,  1  Ind.  App.  57,  27  N.  E.  115,  holding 
demurrer  to  answer  properly  sustained  where  contract  set  out  had  been  declared 
void  as  against  public  policy. 

Cited  in  notes  (16  L.R.A.  257)  on  power  of  public  officers  to  make  contracts 
binding  on  their  successors  or  for  a  term  of  years;  (29  L.R.A. (N.S.)  656,  657) 
on  power  of  board  to  appoint  officer  or  make  contract  for  term  extending  beyond: 
its  own. 

Distinguished  in  Pulaski  County  v.  Shields,  130  Ind.  11,  29  N.  E.  385,  hold- 
ing contract  of  employment  of  county  superintendent  for  term  of  years,  valid; 
McConnell  v.  Arkansas  Brick  &  Mfg.  Co.  70  Ark.  597,  69  S.  W.  559,  holding  su- 
perintendent of  penitentiary  may  contract  for  hire  of  convicts  for  ten  years; 
Picket  Pub.  Co.  v.  Carbon  County,  36  Mont.  190,  13  L.R.A. (N.S.)  1115,  122 
Am.  St.  Rep.  352,  92  Pac.  524,  12  A.  &  E.  Ann.  Cas.  986,  holding  under  statute 
and  in  absence  of  other  provision  a  two-year  contract  for  county  printing  can 
be  entered  into,  on  expiration  of  preceding  contract,  by  outgoing  county  board. 

Disapproved  in  Manley  v.  Scott,  108  Minn.  144,  29  L.R.A. (N.S.)  652,  121 
N.  W.  628,  holding  board  of  county  commissioners  may  make  a  contract  with 
an  employee  to  extend  beyond  the  term  of  office  of  certain  board  members. 

7  L.  R.  A.  162,  LOUISVILLE  &  N.  R.  CO.  v.  GILBERT,  88  Tenn.  430,  12  S.  W. 

1018. 
Limitation   of  carrier's  liability. 

Cited  in  Missouri,  K.  &  T.  R.  Co.  v.  Carter,  9  Tex.  Civ.  App.  698,  29  S.  W. 
565,  holding  shipper  under  duress  in  signing  contract  releasing  carrier  from 
liability;  Bird  v.  Southern  R.  Co.  99  Tenn.  727,  63  Am.  St.  Rep.  856,  42  S.  W. 
451,  holding  carrier  cannot  exempt  itself  from  liability  for  its  own  negligence; 
Bennitt  v.  Missouri  P.  R.  Co.  46  Mo.  App.  666,  holding  bill  of  lading  by  which 
carrier  attempted  to  release  its  liability  for  shipment  of  cotton  invalid;  Pacific 
Exp.  Co.  v.  Foley,  46  Kan.  476,  12  L.  R.  A.  807,  26  Am.  St.  Rep.  107,  26  Pac. 
665  (dissenting  opinion)  majority  holding  receipt  of  carrier  limiting  liability 


7  L.R.A.  162]  L.  R.  A.  CASES  AS  AUTHORITIES.  1252 

to  certain  amount  proper  to  secure  proportion  between  amount  of  responsibility 
and  freight  it  receives;  Schaller  v.  Chicago  v.  N.  R.  Co.  97  Wis.  36,  71  X.  W. 
1042,  holding  want  of  consideration  for  special  contract  of  exemption  must  be 
shown  by  one  claiming  its  nonexistence ;  Missouri,  K.  &  T.  R.  Co.  v.  Carter,  9 
Tex.  Civ.  App.  688,  29  S.  W.  565,  holding  special  contract  for  shipment  of 
cattle  not  supported  by  consideration;  Lake  Erie  &  W.  R.  Co.  v.  Holland.  162 
Ind.  412,  63  L.R.A.  950,  69  N.  E.  138,  denying  right  of  carrier  to  absolve  itself 
from  duty  to  furnish  safe  cars,  by  contract  without  consideration;  Saunders  v. 
Southern  R.  Co.  62  C.  C.  A.  527,  128  Fed.  19,  holding  that  carrier  may  reasonably 
limit  common-law  liability  for  loss  of  freight  or  baggage  not  resulting  from  its 
own  negligence:  St.  Louis  &  S.  F.  R.  Co.  v.  Brosius,  47  Tex.  Civ.  App.  658,  105 
S.  W.  1131,  holding  a  contract  releasing  carrier  from  its  liability  is  unenforce- 
able for  failure  of  consideration  where  no  reduction  from  regular  tariff  rate 
is  made. 

Cited  in  notes  (10  L.  R.  A.  417)  on  exemption  from  liability  clause  in  carrier's 
contracts;  (10  L.  R.  A.  419)  on  limitation  of  carrier's  liability  by  contract;  (13 
L.  R.  A.  518)  on  carrier  limiting  responsibility  by  special  agreement;  (18  L.  R. 
A.  528)  on  right  of  common  carrier  to  limit  common-law  liability  by  contract  in 
absence  of  negligence;  (28  L.R.A. (N.S.)  638,  639)  on  effect  of  shipping  contract 
limiting  common-law  liability,  signed  under  compulsion;  (18  Am.  St.  Rep.  126) 
on  limiting  carrier's  liability;  (46  Am.  St.  Rep.  779)  on  carrier's  right  to  exact 
special  contract  from  shipper;  (88  Am.  St.  Rep.  89,  90,  92,  94,  103)  on  limita- 
tion of  carrier's  liability  in  bills  of  lading. 
Alternative  of  limited  and  unlimited  liability. 

Cited  in  Louisville  &  N.  R.  Co.  v.  Turner,  100  Tenn.  222,  43  L.  R.  A.  142,  47 
S.  W.  223,  holding  passenger  entitled  to  alternative  of  limited  and  unlimited 
tickets;  Illinois  C.  R.  Co.  v.  Craig,  102  Tenn.  302,  52  S.  W.  164,  holding  car- 
rier can  only  limit  its  liability  for  transportation  of  freight  by  giving  shipper 
reasonable  alternative  between  modes  of  shipment;  Little  Rock  &  F.  S.  R.  Co. 
v.  Cravens,  57  Ark.  126,  18  L:  R.  A.  533,  38  Am.  St.  Rep.  230,  20  S.  W.  803, 
holding  shipper  entitled  to  choice  between  limited  and  unlimited  liability  of 
carrier;  Illinois  C.  R.  Co.  v.  Lancashire  Ins.  Co.  79  Miss.  121,  30  So.  43,  holding 
shipper  not  bound  by  contract  limiting  carrier's  liability  when  no  option  or 
choice  was  given  him;  Louisville  &  N.  R.  Co.  v.  Sowell,  90  Tenn.  24,  15  S.  W. 
837,  holding  readiness  to  make  contract  of  shipment  other  than  that  objected  to 
might  be  shown  by  carrier;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Hollowell,  172 
Ind.  470,  88  N.  E.  680,  holding  that  shipper  has  right  to  demand  that  carrier 
transport  goods  under  common  law  liability;  Blake  v.  Sunkel.  148  Mo.  App.  116, 
128  S.  W.  261;  Louisville  &  N.  R.  Co.  v.  Smith,  123  Tenn.  687,  134  S.  W.  866,— 
holding  that  before  shipper  can  be  bound  by  limited  liability  contract  it  must 
appear  that  he  had  option  to  take  common  law  liability  contract;  Baker  v. 
Boston  &  M.  R.  Co.  74  N.  H.  Ill,  124  Am.  St.  Rep.  937,  65  Atl.  386,  12  A.  &  E. 
Ann.  Cas.  1072,  holding  contract  of  indemnity  to  carrier  void  where  carrier 
refused  to  give  service  under  its  public  duty;  Nashville,  C.  &  St.  L.  R.  Co.  v. 
Stone,  112  Tenn.  363,  105  Am.  St.  Rep.  955,  79  S.  W.  1031,  holding  carrier  may 
make  a  valid  contract  of  shipment  limiting  its  common-law  liability  if  such 
contract  is  fairly  obtained  and  it  offers  or  is  ready  to  carry  on  its  ordinary 
liability. 

7  L.  R.  A.  170,  O'LEARY  v.  FIRE  &  WATER  COMRS.  79  Mich.  281,  19  Am.  St. 

Rep.  169,  44  X.  W.  608. 
Inability  of  municipality  or  officer  for  servants'   negligence. 

Approved  in  Freel  v.  Crawfordsville,   142  Ind.  29,  37  L.  R.  A.  304,  41  N.  E. 


1253  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  172 

312,  holding  school  corporation  not  liable  for  agent's  negligence  where  no  pro- 
vision for  payment  of  damages  for  personal  injuries  made;  Nicholson  v.  Detroit, 
129  Mich.  250,  56  L.  R.  A.  603,  88  N.  W.  695,  holding  city  not  liable  for  in- 
fection of  employee  upon  hospital  building,  in  absence  of  statute. 

Cited  in  Moynihan  v.  Todd,  188  Mass.  305,  108  Am.  St.  Rep.  473,  74  N.  E. 
367,  holding  superintendent  of  streets,  under  statute,  liable  for  injuries  caused 
by  his  personal  negligence  in  performance  of  his  duty  and  not  for  negligence  of 
his  servants;  Scharman  v.  Bay  County  Bridge  Commission,  158  Mich.  87,  122 
X.  W.  1098,  on  the  nonsubjection  of  a  public  service  fund  to  diminution  by 
payment  of  damages  for  personal  injuries;  Kilts  v.  Kent  County,  162  Mich. 
648,  —  L.R.A.(N.S.)  — ,  127  N.  W.  821,  holding  that  board  of  supervisors  in 
constructing  water  system  for  poor  farm  perform  governmental  function,  and 
are  not  liable  for  negligent  construction. 

Cited  in  notes    (20  Am.  St.  Rep.   868)    on  municipal  liability  for  negligence 
of  officer;    (23  Eng.  Rul.  Cas.  51)   on  liability  of  municipality  for  negligence  of 
officers  in  workhouse  causing  personal  injuries  to  inmates. 
Statutory  liability  of  officers. 

Cited  in  Miller  v.  Detroit,  156  Mich.  635,  132  Am.  St.  Rep.  537,  121  N.  W. 
490,  16  A.  &  E.  Ann.  Cas.  832,  holding  statutory  liability  for  negligent  main- 
tenance of  physical  surface  of  streets  does  not  include  injury  from  falling  limb 
from  live  tree  on  street. 

7  L.  R.  A.  172,  MYHAN  v.  LOUISIANA  ELECTRIC  LIGHT  &  P.  CO.  41  La. 

Ann.  964,  17  Am.  St.  Rep.  436,  6  So.  799. 
Master's    liability    for   latent   and    patent    defects. 

Cited  in  Townsend  v.  Langles,  41  Fed.  920,  holding  master  not  liable  for  in- 
jury to  employee  brushing  off  cogwheels  the  danger  of  which  is  apparent;  Clem- 
ents v.  Louisiana  Electric  Light  Co.  44  La.  Ann.  695,  16  L.  R.  A.  44.  32.  Am.  St. 
Rep.  348,  11  So.  51,  holding  contributory  negligence  not  shown  from  latent  defect 
of  improperly  insulated  wires;  Bomar  v.  Louisiana  North  &  South  R.  Co.  42 
La.  Ann.  989,  8  So.  478,  holding  railroad  liable  for  injury  to  conductor  coupling 
cars  with  defective  drawhead;  Meyers  v.  Illinois  C.  R.  Co.  49  La.  App.  27,  21 
So.  120,  holding  mere  tagging  of  cars  as  defective  insufficient  to  relieve  master 
of  liability;  Harvey  v.  Louisiana  Western  R.  Co.  114  La.  1073,  38  So.  859, 
holding  railroad  liable  for  injury  caused  to  expressman  working  on  the  premises, 
by  obstruction  around  which  he  had  to  pass  in  poorly  lighted  place,  in  doing 
which  he  was  killed  by  passing  train  at  an  unusual  rate  of  speed. 

Cited  in  footnotes  to  Sweet  v.  Ohio  Coal  Co.  9  L.  R.  A.  861,  which  holds 
master  mav  conduct  business  in  own  way,  though  other  method  less  hazardous; 
Tennessee  Coal,  Iron  &  R.  Co.  v.  Kyle.  12  L.  R.  A.  103,  which  holds  running 
freight  train  without  cow-catcher  negligence;  St.  Louis,  A.  &  T.  R.  Co.  v.  Trip- 
lett,  11  L.  R.  A.  773,  which  holds  master's  duty  to  protect  repair  track  not  ful- 
filled by  adopting  rule  sufficient  if  faithfully  observed  by  employees. 

Cited  in  notes  (8  L.  R.  A.  819)  on  vice  principals  and  agents;  (32  L.  R.  A. 
352)  on  liability  of  electric  company  to  employee  for  injury  caused  by  electric 
shock;  (12  L.R.A.  344)  on  duty  of  master  to  secure  safety  of  servant:  (100 
Am.  St.  Rep.  537)  on  liability  of  electric  corporations  to  employee  for  injuries 
from  crossing  or  contact  of  wires. 
Master's  knowledge  or  notice  of  danger. 

Cited  in  Dobson  v.  New  Orleans  &  W.  R.  Co.  52  La.  Ann.  1133,  27  S.  W.  670, 
holding  railroad  liable  for  injury  due  to  collision  of  train  with  cow  on  track 
contributed  to  by  conductor's  abandonment  of  train;  Carter  v.  Fred  W.  Dubach 


7  L.R.A.  172]  L.  R.  A.  CASES  AS  AUTHORITIES.  1254 

Lumber  Co.  113  La.  245,  36  So.  952,  holding  master  liable  for  failure  to  show 
inexperienced  servant  the  dangers  connected  with  the  work  assigned  which  were 
in  the  actual  knowledge  of  master;  Whitworth  v.  South  Arkansas  Lumber  Co. 
121  La.  900,  46  So.  912,  holding  that  where  injury  to  servant  is  caused  by  defect 
that  should  have  been  detected  though,  it  was  not,  the  master  is  liable. 

Cited  in  note   (41  L.  R.  A.  46)  on  knowledge  as  element  of  employer's  liability 
to  injured  servant. 
Notification  of  <liui«er  of  service. 

Cited  in  Gaulden  v.  Kansas  City  S.  R.  Co.  106  La.  411,  30  So.  889,  holding 
master  liable  for  not  informing  servant  of  danger  of  service  as  well  as  defect  of 
appliance;  Erslew  v.  New  Orleans  &  N.  E.  R.  Co.  49  La.  Ann.  102,  21  So.  153, 
holding  railroad  liable  for  death  of  brakeman  on  top  of  car  struck  by  guy  wire 
negligently  left  by  company;  Myers  v.  Illinois  R.  Co.  49  La.  Aim.  27,  21  So.  120, 
holding  railroad  liable  for  injury  to  brakeman  coupling  cars  known  by  it  to  be 
defective,  without  informing  him;  Stucke  v.  New  Orleans  R.  Co.  50  La.  Ann.  198, 
23  So.  342,  holding  it  master's  duty  to  inform  servant  of  danger  of  work  in  pit 
over  which  electric  cars  ran;  James  v.  Rapides  Lumber  Co.  50  La.  Ann.  728,  44 
L.  R.  A.  51,  23  So.  469,  holding  master  of  sawmill  liable  for  injury  to  employee 
suddenly  ordered  into  dangerous  position  without  warning  of  danger;  Daly  v. 
Kiel,  106  La.  174,  30  So.  254,  holding  warning  to  keep  one  eye  on  engineer  and 
two  on  bank  of  gravel  pit  not  sufficient  intimation  of  danger  to  new  hand; 
McCarthy  v.  Whitney  Iron  Works  Co.  48  La.  Ann.  981,  20  So.  171,  holding 
master  not  liable  for  injury  resulting  from  iron  falling  on  employee  while  level- 
ling bottom  of  pit;  Thompson  v.  New  Orleans  &  C.  R.  Co.  108  La.  56,  32  So.  177, 
holding  railroad  liable  for  injury  resulting  from  defectively  insulated  wire  of 
which  its  officers  had  not  warned -all  employees;  Gracia  v.  Maestri  Furniture 
Mfg.  Co.  114  La.  375,  38  So.  275,  holding  employer  liable  for  injury  to  16-year- 
old  boy  caused  by  placing  him  to  work  at  a  dangerous  circular  saw  without 
properly  instructing  and  warning  him;  Parker  v.  Crowell  &  S.  Lumber  Co.  115 
La.  467,  39  So.  445,  holding  a  general  instruction  to  inexperienced  servant  to 
keep  out  of  danger  without  instructing  him  how  to  avoid  the  dangers  does  not 
relieve  master. 

Cited  in  notes   (8  L.R.A.  636)   on  knowledge  by  servant  of  defective  and  dan- 
gerous machinery;    (20  Am.  St.  Rep.  40)    on  duty  of  master  to  notify  servant 
of  unusual  and  peculiar  dangers  of  service. 
Assumption   of  risk. 

Cited  in  Fisher  v.  Prarie,  26  Okla.  350,  109  Pac.  514,  holding  that  servant 
cannot  be  required  to  assume  risk  from  dangerous  employment,  unless  he  is 
cautioned  sufficiently  to  enable  him  to  reasonably  comprehend  dangers. 

Cited  in  notes  (97  Am.  St.  Rep.  889,  893)  on  assumption  of  risk  by  employee 
accepting  extra  hazardous  duties;  (100  Am.  St.  Rep.  538)  on  assumption  of 
risk  by  employees  of  electric  company;  (4  L.R.A. (N.S.)  991)  on  servant's  as- 
sumption of  risk  of  danger  imperfectly  appreciated;  (17  L.R.A. (X.S.)  77)  on 
servant's  assumption  of  risk  from  latent  danger  or  defect. 
Contributory  neg-lig-ence. 

Cited  in  Potts  v.  Shreveport  Belt  R.  Co.  110  La.  6,  98  Am.  St.  Rep.  452,  34 
So.   103,  holding  lineman  not  unnecessarily  exposing  himself  not  guilty  of  con- 
tributory negligence  in  stringing  dangerous  wires. 
Measure  of  damages. 

Cited  in  Murdock  v.  New  York  &  B.  Despatch  Exp.  Co.  167  Mass.  550,  46 
N.  E.  57,  holding  testimony  of  average  monthly  wages  of  employee  properly 
admitted. 


1255  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  176 

Cited  in  note   (17  L.  R.  A.  78)    on  measure  of  damages  for  death  caused  by 
negligence. 
Survival   of  action. 

Cited  in  American  Sugar  Ref.  Co.  v.  Johnson,  9  C.  C.  A.  120,  13  U.  S.  App. 
£81,  60  Fed.  513,  holding  action  for  damages  for  death  due  to  acts  of  omission 
survives  under  statute. 

7  L.  R.  A.  176,  PORTER  v.  POWELL,  79  Iowa,  151,  18  Am.  St.  Rep.  353,  44 

X.  W.  295. 
Parent's  liability  for  Infant's  snpport. 

Cited  in  Manning  v.  Wells,  8  Misc.  648,  29  N.  Y.  Supp.  1044,  holding  father 
liable  for  necessaries  furnished  to  infant  driven  from  home  and  unable  to  pro- 
vide same;  De  Wane  v.  Hansow,  56  111.  App.  577,  holding  parent  liable  for 
medical  care  of  child  living  apart  with  his  consent,  which  parent  refuses  to  fur- 
nish; Hardy  v.  Eagle,  25  Misc.  473,  54  N.  Y.  Supp.  1045,  holding  mere  weekly 
payments  of  $5  to  child  living  apart  do  not  exempt  from  liability  for  his 
necessaries;  Hopkinson  v.  Knapp  &  S.  Co.  92  Iowa,  333,  60  N.  W.  653,  holding 
parent  damaged  by  death  of  infant,  where  latter  temporarily  controlling  income 
and  not  emancipated;  Kubic  v.  Zemke,  105  Iowa,  272,  74  N.  W.  748,  holding 
verdict  cannot  be  directed  in  action  for  minor's  necessaries,  where  evidence  con- 
flicting as  to  emancipation;  Cushman  v.  Hassler,  82  Iowa,  297,  47  N.  W.  1036, 
holding  father  not  liable  for  support  of  child  leaving  him  without  cause  or 
consent  to  live  with  divorced  mother,  where  father  denied  liability  thereafter; 
Duzan  v.  Myers,  30  Ind.  App.  233,  96  Am.  St.  Rep.  341,  65  N.  E.  1046,  holding 
children  of  former  marriage  entitled  to  participate  in  fund  received  on  account 
of  death  of  parent:  Goulding  v.  Phillips,  124  Iowa,  498,  100  N.  W.  516,  holding 
illegitimate  minor  child  may  sue  for  death  of  putative  father  though  not  legiti- 
matized by  him  under  statute  compelling  parent  to  support  his  illegitimate 
child;  Guthrie  County  v.  Conrad,  133  Iowa,  174,  110  N.  W.  454,  holding  that 
parent  is  liable  for  hospital  expense  incurred  by  county  in  treating  insane  minor 
child:  Brosius  v.  Barker,  154  Mo.  App.  662,  136  S.  W.  18,  holding  that  father 
is  under  legal  obligation  to  support  his  infant  child. 

Cited  in  footnote  to  Fulton  v.  Fulton,  29  L.  R.  A.  678,  which  denies  divorced 
wife's  right  to  recover  from  husband  for  necessaries  furnished  children  In  her 
custody. 

Cited  in  notes  (57  L.R.A.  729)  on  parent's  duty  to  support  child  as  affected 
oy  child's  interest  in  trust  estate  or  other  property;  (57  L.R.A.  729)  on  parent's 
duty  to  support  child  as  affected  by  child's  interest  in  trust  or  other  property; 
(4  L.R.A. (X.S.)  52)  on  duty  to  provide  medical  assistance  for  child;  (40 
L.R.A.(X.S.)  490)  on  liability  of  parent  for  necessaries  furnished  child  living 
away  from  home. 

Distinguished  in  Cooper  v.  McXamara,  92   Iowa,  244,  60  N.  W.  522,  holding 
parent   liable   for   infant's  board   and  lodging  notwithstanding  ability   to   work, 
control  of  earnings,  and  parent's  ability  to  keep  at  home,  where  consent  to  his 
absence  not  controverted. 
Emancipation   of  minor  child. 

Cited  in  Duzan  v.  Myers,  30  Ind.  App.  233,  96  Am.  St.  Rep.  341,  05  X*.  E. 
1046.  holding  minor  son  nineteen  years  of  age  entitled  to  share  in  proceeds  from 
personal  injury  action  for  death  of  his  father,  though  he  was  not  at  the  time 
living  at  home  or  dependent  on  him  for  support:  Bristor  v.  Chicago  &  X'.  W. 
R.  Co.  128  Iowa,  482,  104  X*.  W.  487,  holding  that  father  may  emancipate  his 
minor  child  by  parol  or  writing,  and  emancipation  may  be  proven  by  circum- 
stantial evidence  or  implication  from  conduct. 


7  L.R.A.  180]  L.  R.  A.  CASES  AS  AUTHORITIES.  1256 

7   L.   R.   A.    180,   RUSSELL  v.   TATE,   52   Ark.   541,   20   Am.   St.   Rep.    193,    13 

S.   W.   130. 
Remedy  for  illegal  appropriation  or  payment. 

Cited  in  Wiles  v.  Mclntosh  County,  10  N.  D.  599,  88  N.  W.  710,  holding 
county  officer  liable  for  over-payment  made  because  of  his  over-estimate;  Fred- 
erick v.  Douglas  County,  96  Wis.  425,  71  N.  W.  798,  refusing  to  require  attorney 
rendering  valuable  services  in  good  faith  to  county,  to  return  payments  therefor, 
although  hiring  illegal;  Buyck  v.  Buyck,  112  Minn.  100,  140  Am.  St.  Rep.  464, 
127  N.  W.  452,  holding  that  town  treasurer,  who  pays  out  money  upon  orders 
issued  to  pay  illegal  claims,  knowing  of  the  facts,  is  liable  to  town  for  return 
of  money;  State  ex  rel.  Atty.  Gen.  v.  Huston,  27  Okla.  617,  34  L.R.A.(N.S-) 
388,  113  Pac.  190,  holding  that  district  court  has  power  to  enjoin  state  officers, 
other  than  governor,  from  using  public  funds  contrary  to  law. 

Cited  in  footnotes  to  State  ex  rel.  McCain  v.  Metschan,  41  L.  R.  A.  692,  which 
authorizes  injunction  against  expending  public  money  at  place  prohibited  by 
Constitution;  Ada  County  v.  Bullen  Bridge  Co.  36  L.  R.  A.  367,  which  denies 
right  to  maintain  equitable  action  to  cancel  county  warrants;  State  ex  reL 
Taylor  v.  Pennoyer,  25  L.  R.  A.  862,  which  denies  right  to  enjoin  building  of 
state  institution  at  other  place  than  Constitution  requires. 
Action  by  taxpayer. 

Cited  in  Kellogg  v.  School  Dist.  No.  10,  13  Okla.  303,  74  Pac.  110,  holding 
action  maintainable  by  taxpayer  to  restrain  school  district  from  contracting 
unauthorized  debt;  Kimble  v.  Franklin  County,  32  Ind.  App.  388,  66  N.  E.  1023, 
on  right  of  taxpayer  to  sue  for  recovery  of  misappropriated  public  funds  in 
the  absence  of  statute. 

Cited  in  footnotes  to  Zuelly  v.  Casper,  63  L.R.A.  133,  which  upholds  right 
of  taxpayer  of  county  to  bring  suit  for  restoration  to  treasury  of  money  illegally 
appropriated  as  fees  of  officers;  Johnson  v.  Black,  68  L.R.A.  264,  which  sustain* 
jurisdiction  of  equity  over  suit  by  taxpayer  to  compel  restoration  of  county 
funds  illegally  withdrawn  by  order  of  board  of  supervisors. 

Cited  in  notes    (14  L.R.A.  (N.S.)   299)    on  right  of  taxpayer  to  maintain  suit 
to  enforce  claim  of  municipality;    (36  L.R.A. (N.S.)    19)    on  taxpayer's  right  to 
enjoin  unlawful  municipal  expenditures. 
Appropriation  of  pnblic  funds  as  bonus  or  aid. 

Cited  in  Luxora  v.  Jonesboro,  L.  C.  &  E.  R.  Co.  83  Ark.  277,  13  L.R.A.(N.S.) 
158,  119  Am.  St.  Rep.  139,  103  S.  W.  505,  holding  an  appropriation  of  tax  funda 
to  a  railroad   company  as   an   inducement  to  build  road   into  the  town  appro- 
priating is  absolutely  void. 
Recovery  of  public  funds  paid  by  mistake. 

Cited  in  Kerr  v.  Regester,  42  Ind.  App.  380,  85  N.  E.  790,  holding  that  city 
may  recover  money  paid  to  county  auditor  in  good  faith  under  mistake  of  law. 
Powers  of  municipalities. 

Cited  in  note   (21  Am.  St.  Rep.  373)   on  powers  of  municipal  corporations. 
Liability  of  municipal  officers. 

Cited  in  note  (95  Am.  St.  Rep.  81)  on  liability  of  municipal  officers  for 
ministerial  acts. 

7  L.  R.  A.  183,  STATE  v.  FULKER,  43  Kan.  237,  22  Pac.  1020. 
State    control    of   sale    of   imported    intoxicants. 

Cited  as  overruled  in  State  ex  rel.  Cochran  v.  Winters,  44  Kan.  727,  10  L. 
It.  A.  618,  25  Pac.  235,  holding  state  cannot  control  sale  of  intoxicants  in  original 
package  of  importation. 


1257  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  189 

Cited  in  footnotes  to  State  v.  Gerhardt,  33  L.  R.  A.  313,  which  upholds  require- 
ment for  locking  doors  of  room  where  liquor  sold  during  prohibited  hours; 
Bennett  v.  Pulaski,  47  L.  R.  A.  278,  which  sustains  ordinance  for  closing  saloons 
between  ten  and  four  at  night  and  on  Sundays,  hut  not  requirement  for  removing 
curtains  on  front  doors  and  windows;  State  ex  rel.  Galle  v.  New  Orleans,  67 
L.R.A.  70,  which  denies  right  to  refuse  liquor  license  on  objection  of  minority 
property  holders  or  on  ground  that  no  more  barrooms  are  needed. 

Cited  in  note  (9  L.  R.  A.  782)  concerning  police  power  of  state  as  to  intox- 
icating liquors. 

7  L.  R.  A,  189,  SCHONFIELD  v.  TURNER,  75  Tex.  324,  12  S.  W.  626. 
Interest  in,  and  asslgnability  of,  benefit  certificate. 

Cited  in  Cawthon  v.  Perry,  76  Tex.  385,  13  S.  W.  268,  holding  creditor  pur- 
chasing insurance  policy  upon  debtor's  life,  entitled  to  debt,  premiums  paid  and 
interest,  only;  Goldbaum  v.  Blum,  79  Tex.  641,  15  S.  W.  564,  holding  creditor 
collecting  life  insurance  upon  assigned  policy,  entitled  only  to  amount  of  debt, 
premiums  paid  and  costs  of  collection;  Binkley  v.  Jarvis,  102  111.  App.  63,  hold- 
ing benefit  certificate  assignable  to  creditor  to  extent  of  debt;  Exchange  Bank 
T.  Loh,  104  Ga.  453,  44  L.  R.  A.  376,  31  S.  E.  459,  holding  creditor's  insurable 
interest  in  debtor's  life  cannot  exceed  secured  indebtedness;  Supreme  Lodge, 
K.  of  H.  v.  Metcalf,  15  Ind.  App.  141,  43  N.  E.  893,  holding  speculative  pur- 
chaser of  benefit  certificate  procured  by  fraud,  entitled  to  recover  money  paid ; 
Hanna  v.  Hanna,  10  Tex.  Civ.  App.  101,  30  S.  W.  820,  holding  insured's  mother 
collecting  benefit  certificate,  trustee  for  wife  and  child,  where  latter  of  insurer's 
beneficiary  class;  Mayher  v.  Manhattan  L.  Ins.  Co.  87  Tex.  172,  27  S.  W.  124, 
holding  insured's  heirs  entitled  to  proceeds  of  policy  made  payable  to  one  with- 
out insurable  interest;  Cheeves  v.  Anders,  87  Tex.  291,  47  Am.  St.  Rep.  107,  28 
13.  W.  274,  holding  partner  without  insurable  interest  after  partnership  dis- 
solved; Knights  &  Ladies  of  Honor  v.  Burke,  4  Tex.  App.  Civ.  Cas.  (Willson) 
235,  raising,  without  deciding,  question  as  to  equitable  claim  of  beneficiary  with- 
out insurable  interest,  in  proceeds  of  policy  for  premiums  he  paid;  Cameron  v. 
Barcus,  31  Tex.  Civ.  App.  49,  71  S.  W.  42.3,  holding  community  debt  creditor 
without  insurable  interest  in  life  of  the  wife;  Supreme  Lodge,  K.  &  L.  of  H.  v. 
Menkhausen,  209  111.  283,  70  N.  E.  567,  holding  insurance  benefit  recoverable  by 
Tieirs  where  insured  is  murdered  by  beneficiary;  Kelly  v.  Searcy,  100  Tex.  571, 
102  S.  W.  100,  holding  the  payer  of  premiums  on  policy  under  contract  for 
reimbursement  after  death  of  insured  is  entitled  to  such  reimbursement  where 
the  beneficiaries  named  are  dead  and  proceeds  go  to  minor  children. 

Cited  in  footnotes  to  Mullen  v.  Reed,  24  L.  R.  A.  664,  which  holds  widow  not 
an  heir  at  law;  Schmidt  v.  Iowa  K.  of  P.  Ins.  Asso.  11  L.  R.  A.  205,  which 
holds  indorsement  by  third  person  on  oral  request  of  member  sufficient  change  of 
beneficiary;  Clark  v.  Hirschl,  9  L.  R.  A.  841,  which  holds  beneficiary  changed 
though  letter  announcing  change  to  association  not  received  till  member  dead; 
Simcoke  v.  Grand  Lodge,  A.  O.  of  U.  W.  15  L.  R.  A.  114,  which  holds  granting  of 
new  beneficiary  certificate  precludes  question  as  to  sufficiency  of  attestation  to 
signature  to  application  for  change. 

Cited  in  notes  (9  L.  R.  A.  661)  as  to  assignment  of  life  insurance  policy; 
(25  L.  R.  A.  628,  630)  as  to  right  to  take  life  insurance  for  benefit  of  stranger; 
( 30  L.  R.  A.  596 )  as  to  who  are  heirs  within  meaning  of  life  insurance  policies ; 
(50  L.  R.  A.  554)  as  to  divorce  as  affecting  wife's  right  to  insurance  upon  her 
husband's  life;  13  L.R.A. (N.S.)  944)  on  validity  of  assignment  of  interest  in 
life  insurance  to  one  paying  premiums;  (19  Am.  St.  Rep.  791)  on  assignment 


7  L.R.A.  189]  L.  R.  A.  CASES  AS  AUTHORITIES.  125? 

of  benefits  in  mutual  benefit  association;  (87  Am.  St.  Rep.  508,  511,  518)  on. 
assignment  of  life  insurance  policies. 

Distinguished  in  Overhiser  v.  Overhiser,  14  Colo.  App.  9,  59  Pac.  75,  holding 
heirs  without  interest  in  benefit  certificate  payable  to  wife  or  in  event  of  her 
previous  death,  to  insured's  heirs,  where  wife  divorced ;  United  States  Mut.  AccL 
Asso.  v.  Hodgkin,  4  App.  D.  C.  526,  upholding  recovery  by  beneficiary  without 
insurable  interest  on  nonwagering  policy,  where  no  other  parties  before  court; 
Grego  v.  Grego,  78  Miss.  445,  28  N.  W.  817,  refusing  to  deprive  wife  of  property 
in  ordinary  life  policy  paid  for  by  husband  who  obtains  divorce. 

Disapproved  in  Steinback  v.  Diepenbrock,  158  N.  Y.  26,  44  L.  R.  A.  418,  70 
Am.  St.  Rep.  424,  52  N.  E.  662,  holding  assignee  without  insurable  interest,  may 
recover  upon  full  amount  of  assigned  policy;  Gordon  v.  Ware  Nat.  Bank.  67 
L.R.A.  553,  65  C.  C.  A.  580,  132  Fed.  446,  holding  that  beneficiary  having  an 
insurable  interest  may  assign  certificate  to  person  having  no  such  interest  if 
done  bona  fide  with  no  intent  to  get  around  the  law  against  wager  policies. 

—  Interest  of  insured  In. 

Cited  in  Coleman  v.  Anderson,  98  Tex.  575,  86  S.  W.  730,  holding  certificate 
vests  no  property  right  in  insured  but  that  he  merely  has  right  of  appointment 
and  change  of  appointment  of  beneficiary  at  any  time  subject  to  by-laws  of 
society;  Grand  Lodge,  A.  O.  U.  W.  v.  Jones,  47  Tex.  Civ.  App.  542,  106  S.  W. 
184,  on  the  rule  that  member  of  benefit  society  has  no  property  right  in  the 
benefit  but  merely  the  right  to  name  beneficiary  from  designated  classes. 
Persona  entitled  to  proceeds  from  benefit  certificate. 

Cited  in  Supreme  Lodge  K.  L.  H.  v.  Menkhausen,  209  111.  283,  65  L.R.A.  511, 
101  Am.  St.  Rep.  239,  70  N.  E.  567,  holding  named  beneficiary  in  certificate  of 
insurance  not  entitled  to  proceeds  as  beneficiary  or  otherwise  where  he  kills 
insured;  Murphy  v.  Nowak,  223  111.  311,  7  L.RA.(N.S.)  398,  79  N.  E.  112, 
holding  a  girl  adopted  at  age  of  three  and  kept  until  twenty  years  of  age  as 
the  daughter  of  insured  is  during  that  time  a  dependent  entitled  under  charter 
and  by-laws  of  society  to  be  a  beneficiary. 

Cited  in  notes   (44  Am.  St.  Rep.  409)    on  insurance  payable  to  "heirs;"    (17 
L.R.A.(N.S.)   1086)   on  disposition  of  benefit  fund  on  failure  of  beneficiary. 
Insurable   interest. 

*  Cited  in  Wilton  v.  New  York  L.  Ins.  Co.  34  Tex.  Civ.  App.  158,  78  S.  W.  403r 
holding  a  niece  who  has  no  expectation  of  pecuniary  benefit  from  her  uncle 
outside  of  a  few  not  valuable  gifts  from  time  to  time  has  no  insurable  interest 
in  his  life. 

Cited  in  note  (128  Am.  St.  Rep.  316,  317)  on  life  insurance  in  favor  of 
persons  having  no  insurable  interest. 

—  Of  divorced  wife. 

Cited  in  Hatch  v.  Hatch,  35  Tex.  Civ.  App.  376,  80  S.  W.  411,  holding  divorce 
whether  for  cause  of  husband  or  not  ends  the  insurable  interest  of  wife  in  life 
of  husband  except  in  so  far  as  she  has  paid  premiums. 

Cited  in  note  (3  L.R.A.  (N.S.)  480)  on  effect  of  divorce  on  rights  of  bene- 
ficiary in  insurance  policy. 

7  L.  R.  A.  191,  STANDARD  OIL  CO.  v.  LANE,  75  Wis.  636,  44  N.  W.  644. 
Materials   \vitbin    protection    of   mechanic's   lien    laws. 

Cited  in  A.  M.  Holter  Hardware  Co.  v.  Ontario  Min.  Co.  24  Mont.  201,  61 
Pac.  3,  holding  oil,  grease,  and  gasoline  for  fuel  not  lienable  within  mechanic's 
lien  law;  Cincinnati,  R.  &  M.  R.  Co.  v.  Shera,  36  Ind.  App.  321,  73  N.  E.  293r 
holding  persons  furnishing  coal  consumed  in  operation  of  steam  shovel,  not 


1259  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  193 

entitled  to  lien  on  user's  right  of  way  and  franchise  under  statute;  Builders' 
Material  Co.  v.  Johnson,  158  111.  App.  414,  holding  that  lumber  used  in  making 
moulds  for  concrete  building  is  not  covered  by  mechanic's  lien  law;  Barker  &  S. 
Lumber  Co.  v.  Marathon  Paper  Mills  Co.  146  Wis.  23,  36  L.R.A.  (X.S.)  880, 
130  N.  W.  866,  holding  that  lumber,  piling  timbers  and  hardware  used  in  con- 
struction of  cofferdam  used  in  holding  back  water  during  construction  of  per- 
manent dam  are  within  meaning  of  mechanic's  lien  law. 

Cited  in  footnote  to  Hercules  P.  Co.  v.  Knoxville,  L.  &  J.  R.  Co.  67  L.R.A. 
487,  which  sustains  right  to  lien  for  explosives  consumed  in  grading  roadbed 
or  driving  tunnel  for  railroad  company. 

Cited  in  note  (36  L.R.A.  (X.S.)  869)  on  mechanics'  lien;  materials  consumed 
in  process  of  work,  but  not  becoming  part  of  structure. 

7  L.  R.  A.  193,  Re  WASHINGTON  STREET,  132  Pa.  257,  19  Atl.  219. 
Object  and  basis  of  classification. 

Cited  in  Edmonds  v.  Herbrandson,  2  N.  D.  274,  14  L.  R.  A.  725,  footnote 
p.  725,  50  X.  W.  970,  holding  act  arbitrarily  classifying  counties,  for  relocation 
of  county  seats,  unconstitutional;  Perkins  v.  Philadelphia,  156  Pa.  575,  33 
W.  N.  C.  49,  27  Atl.  356  (dissenting  opinion)  majority  holding  act,  which  can 
apply  to  only  one  city,  unconstitiitional ;  Re  Toronto  Street,  26  Pa.  Co.  Ct.  97, 
relating  to  remedies  open  to  Philadelphians  to  recover  damages  for  opening  of 
streets;  Scranton  v.  Whyte,  148  Pa.  425,  30  W.  N.  C.  76,  23  Atl.  1043,  holding 
laws  limited  to  single  class  of  cities  not  local,  if  they  relate  to  the  regulation 
of  municipal  affairs;  Longview  v.  Crawfordsville,  164  Ind.  122,  68  LJl.A.  625, 
73  X.  E.  78,  3  A.  &  E.  Ann.  Cas.  496,  holding  that  a  classification  of  cities  for 
governing  purposes  to  be  valid  must  not  be  unnatural,  artificial,  arbitrary  or 
founded  alone  upon  isolation. 

Distinguished  in  Shaaber  v.  Reading,  133  Pa.  653,  19  Atl.  419,  upholding  act 
relating  to  the  opening  of  streets  by  cities  of  the  third  class. 
Constitutional    classification. 

Cited  in  Safe  Deposit  &  T.  Co.  v.  Fricke,  152  Pa,  240,  31  W.  N.  C.  328,  25 
Atl.  530,  holding  classification  unconstitutional  unless  relating  to  exercise  of 
corporate  powers;  Lehigh  Valley  Coal  Co.'s  Appeal,  164  Pa.  50,  30  Atl.  210, 
holding  general  act  permitting  taxpayers  to  contract  for  making  at  their  own 
expense  the  roads,  constitutional;  Bennett  v.  Xorton,  171  Pa.  238,  32  Atl.  1112, 
Affirming  7  Kulp,  460.  holding  act  relating  to  purchase  of  land  for  courthouses 
unconstitutional  although  not  originally  applicable  to  coextensive  counties  and 
cities;  Re  Reading's  Constables,  8  Pa.  Co.  Ct.  102,  holding  act  providing  for 
election  of  constables  in  cities  of  the  second  and  third  classes  constitutional; 
Shenk  v.  McKennan,  11  Pa.  Super.  Ct.  88,  upholding  act  relating  to  regulation 
of  buildings  in  cities  of  the  second  class;  Campbell  v.  Indianapolis,  155  Ind. 
204,  57  N.  E.  920,  holding  general  act  concerning  schools  in  cities  of  specified 
population,  constitutional  although  applying  to  but  one  city  when  it  takes  effect; 
Beltz  v.  Pittsburg,  34  Pittsb.  L.  J.  X.  S.  198,  holding  constitutional,  act  pro- 
viding for  licensing  plumbers  in  cities  of  second  class;  Kittanning  Poor  Dist. 
v.  Armstrong  County,  34  Pa.  Co.  Ct.  223,  17  Pa.  Dist.  R.  674,  holding  an  act 
constitutional  providing  for  support  of  certain  classes  of  indigent  poor  by  coun- 
ties; Foering  v.  Witzel,  15  Pa.  Dist.  R.  887,  10  Xortli  Co.  Rep.  225,  32  Pa.  Co. 
Ct.  398,  holding  certain  acts  related  to  the  exercise  of  corporate  powers  and 
the  management  of  municipal  business. 

Cited  in  footnote  to  Com.  ex  rel.  Jones  v.  Blackley,  52  L.  R.  A.  367,  which 
sustains  classification  of  townships  by  density  of  population. 


7  L.R.A.  193]  L.  R.  A.  CASES  AS  AUTHORITIES.  1260 

Unconstitutional   classification. 

Cited  in  Re  Wyoming  Street,  137  Pa.  503,  27  W.  N.  C.  138,  21  Atl.  74,  holding 
act  affecting  cities  of  one  class,  but  not  relating  to  any  subject  under  municipal 
contract,  unconstitutional;  Pittsburgh's  Petition,  138  Pa.  435,  27  W.  N.  C.  462, 
21  Atl.  757,  holding  act  relating  to  municipal  lien  practice  in  cities  of  second 
class,  unconstitutional;  Philadelphia  v.  Westminster  Cemetery  Co.  162  Pa.  107, 
34  W.  N.  C.  363,  29  Atl.  349,  holding  act  forbidding  establishment  of  cemeteries 
within  1  mile  of  limits  of  cities  of  the  first  class,  unconstitutional:  Van  Loon  v. 
Engle,  171  Pa.  165,  37  W.  N.  C.  245,  33  Atl.  77,  holding  act  relating  to  taxes, 
excepting  cities  of  the  first,  second,  and  fourth  classes,  unconstitutional ;  Chal- 
fant  v.  Edwards,  173  Pa.  250,  33  Atl.  1048,  holding  an  act  relating  to  schools  in 
cities  of  the  second  class,  unconstitutional;  Com.  ex  rel.  Fell  v.  Gilligan,  8  Kulp, 
567,  holding  act  relating  to  government  of  schools  in  cities  of  the  third  class,  un- 
constitutional; Litzenberg  v.  Allentown  School  Dist.  6  Northampton  Co.  Rep. 
151,  holding  act  relating  to  taxation  for  school  and  building  purposes  in  cities  of 
the  third  class,  unconstitutional;  Baker  v.  McKee,  20  Pa.  Ct.  12,  6  Pa.  Dist.  R. 
600,  holding  part  of  act  requesting  school  vouchers  to  be  signed  by  city  comptrol- 
ler, unconstitutional;  Re  Knox  Street,  12  Pa.  Super.  Ct.  538,  Affirming  21  Pa. 
Co.  Ct.  587,  7  Pa.  Dist.  R.  502,  43  W.  N.  C.  11,  holding  act  relating  to  jurors  in 
any  county  co-extensive  in  boundary  with  city  of  the  first  class,  unconstitutional; 
State  ex  rel.  Sanderson  v.  Mann,  76  Wis.  480,  45  N.  W.  526,  holding  estate  tax 
general  in  form  but  applicable  to  but  one  county,  unconstitutional;  Wagner  v. 
Milwaukee  County,  112  Wis.  608,  88  N.  W.  577,  holding  act  indirectly  made  ap- 
plicable to  only  one  county  by  reference  to  value  of  taxable  property,  unconstitu- 
tional ;  Louisville  v.  Kuntz,  104  Ky.  590,  47  S.  W.  592,  holding  six  months'  limi- 
tation as  to  actions  against  cities  of  the  first  class,  unconstitutional;  Ashworth 
v.  Pittsburg  R.  Co.  231  Pa,  543,  80  Atl.  981,  holding  that  act  of  June  7,  1907, 
to  regulate  rate  of  fare  on  street  railways  in  cities  of  second  class  is  void  as 
special  legislation  because  involving  improper  classification  of  cities;  Davis  v. 
Beers,  12  Pa.  Dist.  R.  437,  on  arbitrary  classification  for  purpose  of  making  laws 
applicable  thereto;  Thatcher  v.  York  County,  13  Pa.  Dist.  R.  71,  holding  a 
statute  providing  for  appointment  of  tax  collectors  of  state  and  county  taxes 
in  cities  of  third  class  to  be  unconstitutional;  Beltz  v.  Pittsburg,  26  Pa.  Super. 
Ct.  69,  holding  classification  void  if  it  relates  to  subjects  not  included  in  its 
purpose,  or  excludes  any  member  of  the  class. 

Cited  in  footnotes  to  Sutton  v.  State,  33  L.R.A.  589,  which  holds  classification 
of  counties  according  to  previous  census  without  respect  to  actual  population 
void:  Longview  v.  Crawfordsville,  68  L.R.A.  622,  which  holds  void  classification 
of  cities  for  purpose  of  legislation  so  as  to  make  particular  law  conferring  power 
to  annex  territory  applicable  to  those  having  population  between  six  and  seven 
thousand. 
Power  of  courts  to  declare  IRYVS  unconstitutional. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Cunningham,  81  Wis.  478,  15  L.R.A.  566, 
51  N.  W.  724,  holding  power  to  declare  acts  of  legislature  unconstitutional  inher- 
ent in  all  courts  of  last  resort  in  United  States. 
Legislative   discretion. 

Cited  in  Newell  v.  Bradford  City,  18  Pa.  Co.  Ct.  468,  holding  without  abuse  of 
discretion  courts  will  not  interfere  with  municipal  council's  choice  of  school  site. 
Law  partly  good  and  partly  bad. 

Cited  in  Rothermel  v.  Meyerle,  136  Pa.  265,  9  L.  R.  A.  368,  3  Inters.  Com.  Rep. 
318,  20  Atl.  583,  holding  if  unconstitutional  part  of  law  is  vital  to  the  whole  act, 
the  whole  must  fall. 


3261  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  200 

Corporate   powers. 

Cited  in  Livingston  v.  Wolf,  136  Pa.  533,  27  W.  N.  C.  10,  20  Am.  St.  Rep.  936, 
20  Atl.  551,  holding  footways  under  municipal  control;  Com.  v.  Hanley,  15  Pa, 
Super.   Ct.  274,  holding  burial  of  the  dead  proper  matter  of  municipal  regula- 
tion. 
Repeal  of  special  laws. 

Cited  in  Reading  v.  Shepp,  2  Pa.  Dist.  R.  139,  holding  in  general  laws'  intent  to 
repeal  local  laws  should  plainly  appear. 
Special   legislation. 

Cited  in  Re  Toronto  Street,  10  Pa.  Dist.  R.  350,  as  an  instance  of  unconstitu- 
tional local  legislation;  Engel's  Appeal,  21  Pittsb.  L.  J.  (N.  S.)  219,  holding 
void,  act  for  improvement  of  cities  of  second  class. 

Cited  in  footnotes  to  Stockton  v.  Powell,  15  L.  R.  A.  42,  which  holds  courts  with- 
out power  to  inquire  as  to  notice  of  application  to  legislature  for  local  legisla- 
tion; State  v.  Elizabeth,  23  L.  R.  A.  525,  which  holds  invalid  special  statute  dis- 
criminating between  municipalities  already  having  and  those  not  having  race- 
course; Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584,  which  holds  statute  as 
to  taxes  not  applying  to  all  parts  of  state,  unconstitutional;  Milwaukee  County 
v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating  sheriff's  fees  for  particu- 
lar county,  local. 

7  L.  R.  A.  200,  AMERICAN  TELEPH.  &  TELEG.  CO.  v.  SMITH,  71  Md.  535,  18 

Atl.  910. 
Additional  servitudes  of  pole  lines  and  -wires. 

Cited  in  Phillips  v.  Postal  Teleg.  Cable  Co.  130  N.  C.  524,  89  Am.  St.  Rep.  868, 
41  S.  E.  1022,  and  Hodges  v.  Western  U.  Teleg.  Co.  133  N.  C.  234,  45  S.  E.  572, 
holding  telegraph  company's  line  on  railroad's  right  of  way,  additional  servi- 
tude; Krueger  v.  Wisconsin  Teleph.  Co.  106  Wis.  108,  50  L.  R.  A.  304,  81  N.  W. 
1041 ;  and  Donovan  v.  Allert,  11  N.  D.  296,  58  L.  R.  A.  779,  95  Am.  St.  Rep.  720, 
91  N.  W.  441,  holding  telephone  poles  additional  servitude  upon  street;  Jaynes  v. 
Omaha  Street  R.  Co.  53  Neb.  649,  39  L.  R.  A.  757,  74  N.  W.  67,  holding  poles  and 
wires  of  electric  railway  additional  servitude  upon  street;  Payne  v.  Kansas  &  A. 
Valley  R.  Co.  46  Fed.  555,  holding  approach  for  wagon  and  foot-passenger  bridge, 
additional  servitude  upon  land  taken  for  rail  and  telegraph  lines;  Gosgriff  v. 
Tri-State  Teleph.  Co.  15  N.  D.  218,  5  L.R.A.  (N.S.)  1146,  107  N.  W.  525,  holding 
that  United  States  statutes  permitting  companies  to  put  up  telegraph  poles  on 
post  roads  do  not  affect  the  right  of  land  owners  abutting  the  roads  to  recover 
damages  for  the  additional  burden  imposed  thereby;  Canadian  P.  R.  Co.  v. 
Moosehead  Teleph.  Co.  106  Me.  367,  29  L.R.A.  (X.S.)  706,  76  Atl.  885,  20  Ann. 
Cas.  721,  holding  that  location  of  telephone  line  upon  railroad  right  of  way  is 
a  taking  of  it,  and  imposes  additional  burden  for  which  compensation  may  be 
exacted;  Baltimore  County  Water  &  Electric  Co.  v.  Dubreuil,  105  Md.  428,  9 
L.R.A. (N.S.)  686,  66  Atl.  439,  holding  that  the  use  of  country  roads  by  private 
corporation  for  laying  pipes  is  an  additional  servitude  for  which  the  abutting" 
owners  may  have  compensation,  such  use  not  being  in  contemplation  when  the 
easement  to  the  public  was  granted;  Maryland  Teleph.  &  Teleg.  Co.  v.  Ruth,  106 
Md.  653,  14  L.R.A. (N.S.)  430,  124  Am.  St.  Rep.  506,  68  Atl.  358,  14  A.  &  E. 
Ann.  Cas.  576.  holding  owner  or  lessee  of  lot  adjoining  private  alley  may  after 
notice  cut  down  telephone  pole  placed  on  edge  of  lot  without  right  acquired  by 
contract  or  condemnation;  Canton  v.  Canton  Cotton  Warehouse  Co.  84  Miss. 
292.  65  L.R.A.  567,  105  Am.  St.  Rep.  428,  36  So.  266,  on  the  rule  that  telegraph 
lines  on  railway  right  of  way  for  railroad  purposes  are  not  an  additional  servi- 
tude entitling  abutting  owners  to  compensation;  Portland  v.  Metzger,  58  Or. 


7  L.R.A.  200]  L.  R.  A.  CASES  AS  AUTHORITIES.  12G2 

281,  114  Pac.  106,  holding  that  grant  to  city  of  right  of  way  for  pipe  lines 
extending  distance  of  40  miles,  grants  city  right  to  maintain  telephone  line 
convenient  for  proper  maintenance  of  pipe  line;  Pittock  v.  Central  District  & 
Printing  Teleg.  Co.  31  Pa.  Super.  Ct.  596,  36  Pittsb.  L.  J.  N.  S.  213,  holding 
a  telephone  company  having  slightly  or  no  connection  with  railroad  business 
cannot  by  grant  from  railroad  obtain  right  of  way  over  landowner's  servient 
estate  in  railroad's  right  of  way. 

Cited  in  footnotes  to  Miller  v.  Green  Bay,  W.  &  St.  P.  R.  Co.  26  L.  R.  A.  443, 
which  holds  additional  burden  on  street  not  made  by  allowing  other  companies  to 
use  tracks;  Ft.  Worth  &  R.  G.  R.  Co.  v.  Southwestern  Teleg.  &  Teleph.  Co.  60  L. 
R.  A.  145,  which  sustains  right  to  condemn  telegraph  line  over  railroad  right  of 
way;  Mobile  &  O.  R.  Co.  v.  Postal  Teleg.  Cable  Co.  41  L.  R.  A.  403,  which  holds 
condemnation  of  telegraph  line  over  railway  right  of  way  authorized  by  statute; 
Western  U.  Teleg.  Co.  v.  Pennsylvania  Co.  68  L.R.A.  968,  which  denies  right  of 
either  party  to  terminate  without  other's  consent  contract  for  maintenance  on 
railroad  right  of  way  of  telegraph  line  at  joint  expense  and  for  joint  use. 

Cited  in  notes  (8  L.  R.  A.  430)  concerning  construction  of  telegraph  lines  as 
additional  servitude;  (17  L.  R.  A.  480)  as  to  what  use  of  a  street  or  highway 
constitutes  an  additional  burden;  (10  L.  R.  A.  499)  as  to  the  placing  of  electric 
wires  in  city  streets;  (12  L.  R.  A.  864)  as  to  rights  of  abutting  owners  upon  con- 
struction of  telegraph  line;  (36  L.R.A.  (N.S.)  519)  on  uses  to  which  railroad 
right  of  way  may  be  devoted;  (28  Am.  St.  Rep.  233,  235)  on  telegraph  and 
telephone  poles  and  wires  in  streets  and  highways  across  private  property;  (106 
Am.  St.  Rep.  262)  on  what  are  additional  servitudes  in  highways. 

Distinguished  in  St.  Louis  I.  M.  &  S.  R.  Co.  v.  Cape  Girardeau  Bell  Teleph. 
€o.  134  Mo.  App.  412,  114  S.  W.  586,  holding  that  a  telephone  line  along  de- 
fendant's right  of  way  owned  by  separate  company  but  by  agreement  to  be  used 
for  railroad  purposes  too  is  not  an  additional  servitude  on  plaintiff  railroad's 
easement  to  the  extent  of  right  of  way. 
Pleasure  of  damages  for  telegraph  line. 

Cited  in  footnotes  to  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Ohio  Postal  Teleg.  Cable 
Co.  62  L.  R.  A.  941,  which  holds  measure  of  damages  to  be  decrease  in  value  of 
use  of  right  of  way  for  railroad  purposes;  Mobile  &  O.  R.  Co.  v.  Postal  Teleg. 
Cable  Co.  45  L.  R.  A.  223,  which  holds  measure  of  damages  for  telegraph  line  on 
right  of  way,  diminution  in  value  of  use  by  railroad  company. 
Necessity  of  seal  to  answer  of  corporation. 

Cited  in  R.  Frank  Williams  Co.  v.  United  States  Baking  Co.  86  Md.  478,  38 
Atl.  990,  holding  a  corporation  can  only  answer  in  equity,  under  its  seal. 
Injunction  against  trespass  \>\    color  of  eminent  domain. 

Cited  in  Shipley  v.  Western  Maryland  Tidewater  R.  Co.  99  Md.  140,  56  Atl. 
968,  holding  railway  company  may  be  enjoined  from  a  threatened  taking  of  land- 
owner's right  to  center  of  stream  without  compensation  which  was  not  included 
in  condemnation  of  shore  to  railway  company. 

Distinguished  in  Carswell  v.  Swindell,  102  Md.  642,  62  Atl.  956,  holding  equity 
will  not  entertain  a  bill  for  injunction  against  trespass  in  the  absence  of  alle- 
gation of  irreparable  injury  or  insolvency  of  trespasser  or  other  showing  of 
inadequate  remedy  at  law. 

7  L.  R.  A.  205,  TAGGART  v.  NEWPORT  STREET  R.  CO.  16  R.  1.  668,  19  Atl. 

326. 
Use  of  streets;  additional  servitude  of  street  railway. 

Cited  in  Koch  v.  North  Ave.  R.  Co.  75  Md.  229,  15  L.  R.  A.  380,  23  Atl.  463; 


1263  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  205 

San  Antonio  Rapid  Transit  Street  R.  Co.  v.  Limburger,  88  Tex.  85,  53  Am.  St. 
Rep.  730,  30  S.  W.  533;  Howe  v.  West  End  Street  R.  Co.  167  Mass.  51,  44  N.  E. 
386;  Birmingham  Traction  Co.  v.  Birmingham  R.  &  Electric  Co.  119  Ala.  142,  43 
L.  R.  A.  235,  24  So.  502 — holding  authorized  electric  street  railway  on  highway 
not  additional  servitude;  Peck  v.  Schenectady  R.  Co.  170  N.  Y.    311,  63  N.  E.  357 
(dissenting   opinion)    majority    holding   electric   railroad   additional    burden    on 
street;  La  Crosse  City  R.  Co.  v.  Higbee,  107  Wis.  400,  51  L.  R.  A.  928,  83  N.  W. 
701,  holding  trolley  pole  not  additional  burden  if  reasonably  placed  with  regard 
to  abutting  owners'  convenience;  Paterson  R.  Co.  v.  Grundy,  51  N.  J.  Eq.  228,  26 
Atl.  788,   holding   electric   railway   may   enjoin    interference    with   trolley   wires 
where  no  additional  burden  imposed  thereby;   Chicago,  B.  &  Q.  R.  Co.  v.  West 
Chicago  Street  R.  Co.  156  111.  268,  29  L.  R.  A.  490,  40  N.  E.  1008,  and  West  Jer- 
sey R.  Co.  v.  Camden,  G.  &  W.  R.  Co.  52  N.  J.  Eq.  35,  29  Atl.  423,  holding  railroad 
cannot  enjoin  planting  of  trolley  poles  at  highway  crossing  without  compensa- 
tion, where  no  interference  with  operation  of  road;  Cumberland  Teleg.  &  Teleph. 
Co.  v.  United  Electric  Co.  93  Tenn.  503,  27  L.  R.  A.  239.  29  S.  W.  104,  holding 
electric  railway  ordinary  use  of  street  within  proviso  of  grant  to  telephone  com- 
pany prohibiting  obstruction  thereof;   Cincinnati  Inclined  Plane  R.   Co.  v.  City 
Suburban  Teleg.  Asso.  48  Ohio  St.  426,  12  L.  R.  A.  540,  29  Am.  St.  Rep.  559,  27 
N.  E.  890,  refusing  to  enjoin  construction  of  electric  railway  at  suit  of  previously 
established  telephone  company;   Central  Pennsylvania  Teleg.  &  Supply  R.  Co.  v. 
Wilkesbarre  W.  S.  R.  Co.  11  Pa.  Co.  Ct.  423,  6  Kulp,  390,  1  Pa.  Dist.  Rep.  632, 
holding  electric  railway  liable  to  telephone  company  having  prior  occupancy  of 
street  only  for  negligence   in  construction;    Hershfield  v.   Rocky  Mountain   Bell 
Teleph.  Co.  12  Mont.  118,  29  Pac.  883,  holding  erection  of  telephone  poles  along 
street,  reasonable  use  thereof;  Canandaigua  v.  Benedict,  24  App.  Div.  353,  48  N. 
Y.  Supp.  679,  holding  that  municipal  corporation  may  acquire  further  easement 
in  highway  for  supply  wires  for  electric  pump  over  easement  for  water-pipe  con- 
duit; Vose  v.  Newport  Street  R.  Co.  17  R.  1.  136,  20  Atl.  267,  holding  no  liability 
to  abutting  owners  for  damage  resulting  from  use  of  rails  already  laid;   Detroit 
City  R.  Co.  v.  Mills,  85  Mich.  655,  48  N.  W.  1007,  holding  operation  of  electric 
railway  in  street  not  an  additional  burden;   Halsey  v.  Rapid  Transit  Street  R. 
Co.  47  X.  J.  Eq.  393,  20  Atl.  859,  holding  trolley  poles  in  middle  of  street  not  an 
additional  burden;  Donner  v.  Metropolitan  Street  R.  Co.  133  Mo.  App.  534,  113 
S.  W.  669 :   Lockhart  v.  Craig  Street  R.  Co.  20  Pittsb.  L.  J.  N.  S.  481 ;   Hobbs 
v.  Long  Distance  Teleph.  &  Teleg.  Co.  147  Ala.  397,  7  LJR.A.(N.S.)    907,  41  So. 
1003,   11   A.  A   E.   Ann.  Cas.  461, — on  the   rule  that  a  street   railway  with   its 
poles  and  wires   is  not  an  additional  servitude;    Atty.  Gen.  ex  rel.  Brotherton 
v.   Detroit,   148  Mich.   116,  111  X.  W.  860    (dissenting  opinion),  on  the  use  of 
streets  by  street  railway  companies  as  being  a  proper  use;    Canton   v.  Canton 
Cotton  Warehouse  Co.   84  Miss.  292,  65  L.R.A.  567,   105  Am.  St.  Rep.  428,  36 
So.   266,   holding   railway   company   may   use   streets   to   lay   conduits   to   carry 
water  to   its   buildings   without  compensation  to   abutting  owners:    Rafferty   v. 
Central  Traction  Co.  147  Pa.  592.  30  Am.  St.  Rep.  763,  23  Atl.  884,  29  W.  X.  C. 
549.   22   Pittsb.   L.  J.  N.  S.   324,   holding  the  use  of  streets   for   placing  street 
railway  tracks  so  close  to  curbing  that  a  vehicle  cannot  stand   between  them 
is  not  an  unreasonable  use  entitling  abutting  owner  to  compensation:  St.  Louis. 
I.  M.  &  S.  R.  Co.  v.  Cape  Girardeau  Bell  Teleph.  Co.   134   Mo.   App.  413.    114 
S.  W.  586.  holding  a  railway's  right  of  crossing  another  road  carries  with   it 
the   ri«rht  to  construct  or  join  with  another  and  to  construct  telephone  across 
on  its  right  of  way  for  railroad  and  other  purposes. 

Cited  in  footnotes  to  State  v.  Jersey  City,  26  L.  R.  A.  281,  which  holds  author- 
ized street  car  line  a  proper  street  use;  Chicago  General  R.  Co.  v.  Chicago  C'i'y 


7  L.R.A.  205)  L.  E.  A.  CASES  AS  AUTHORITIES.  1264 

R.  Co.  50  L.  R.  A.  734,  which  denies  liability  for  collision  with  cars  of  other  com- 
pany because  of  running  cable  cars  under  authority  to  use  animal  power  only. 

Cited  in  notes  (17  L.  R.  A.  478)  on  street  railway  as  additional  burden;  (10 
L.R.A.  176)  on  regulation  as  to  motive  power  for  street  railroads;  (104  Am. 
St.  Rep.  647;  2  L.R.A.(N.S.)  139)  on  motive  power  for  railroads  or  street  rail- 
way; (25  Am.  St.  Rep.  479;  36  L.R.A.  (N.S.)  722,  723)  on  abutter's  right  to- 
compensation  for  railroads  in  streets;  (28  L.R.A. (N.S.)  1083)  on  preventive 
remedy  of  nonconsenting  abutting  owner  where  use  of  highway  for  street  railway 
authorized  by  public;  (28  Am.  St.  Rep.  235,  236)  on  telegraph  and  telephone 
poles  and  wires  in  streets  and  highways  across  private  property;  (106  Am.  St. 
Rep.  245,  261)  on  what  are  additional  servitudes  in  highways. 

Distinguished  in  Jaynes  v.  Omaha  Street  R.  Co.  53  Neb.  638,  39  L.  R.  A.  753, 
74  N.  W.  67,  holding  adjoining  property  owner  entitled  to  damages  for  perma- 
nent appropriation  of  portion  of  street  by  trolley  poles;  Snyder  v.  Fort  Madison 
Street  R.  Co.  105  Iowa,  288,  41  L.  R.  A.  347,  75  N.  W.  179,  enjoining  maintenance 
of  trolley  pole  unnecessarily  in  front  of  dwelling;  Cater  v.  Northwestern  Teleph. 
Exchange  Co.  60  Minn.  549,  28  L.  R.  A.  315,  51  Am.  St.  Rep.  543,  63  N.  W.  Ill 
( dissenting  opinion)  majority  holding  telephone  poles  along  highway  impose  no 
additional  burden  thereon. 
.Measure  of  damages. 

Cited  in  Stewart  v.  Ohio  River  R.  Co.  38  W.  Va.  450,  18  S.  E.  604,  holding 
measure  of  damage  to  abutting  owner  to  be  depreciation  in  market  value  of  prop- 
erty by  construction  of  railroad  in  street. 
Validity  of   franchise. 

Cited  in  Williams  v.  Citizens'  R.  Co.  130  Ind.  75,  15  L.  R.  A.  67,  30  Am.  St. 
Rep.  201,  29  X.  E.  408,  holding  not  subject  to  attack  in  proceeding  against  indi- 
vidual to  enjoin  interference  with  operation  of  railroad. 
Judicial   notice. 

Cited  in  McGill  v.  Michigan  S.  S.  Co.  75  C.  C.  A.  518,  144  Fed.  794,  holding 
court  will  not  take  judicial  notice  of  the  existence  of  gas  in  a  tank  containing 
crude  petroleum  immersed  in  cold  water. 

Cited  in  footnote  to  Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.  12  L.  R.  A.  652, 
\vhich  holds  that  judicial  notice  will  be  taken  that  natural  gas  is  dangerous 
agency. 

7  L.  R.  A.  209,  FISKE  v.  FIRST  NAT.  BANK,  133  Pa.  241,  19  Atl.  554. 
Technical   phrases. 

Cited  in  McDonough  v.  Jolly  Bros.  165  Pa.  548,  30  Atl.  1048,  holding  paving 
contractor  may  show  trade  meaning  of  provision  to  prepare  necessary  beds  of 
gravel,  sand,  or  other  material  required  for  said  paving;  Whorley  v.  Karper,  20 
Pa.  Super.  C't.  349,  holding  tenant  under  ambiguous  lease  entitled  to  way-going 
crop;  Rastetter  v.  Reynolds,  160  Ind.  136,  66  N.  E.  612,  holding  evidence  of  cus- 
tom admissible  to  show  dimensions  of  elm  strips  purchased  were  to  be  taken  when 
sawed  green;  Cole  v.  Leach,  47  Ind.  App.  344,  94  N.  E.  577,  holding  that  parol 
evidence  may  be  admitted  to  clear  up  ambiguities,  abbreviations,  and  particular 
customs,  when  construing  writing. 

Distinguished  in  Silliman  v.  Whitmer,  11  Pa.  Super.  Ct.  261,  holding  evidence 
of  local  usage  to  regard  tramway  as  personalty,  inadmissible  where  not  shown  to 
exist  at  time  of  contract. 


12G5  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  211 

7  L.  R.  A.  210,  McCULLOUGH  v.  EXPRESSMEN'S  MUT.  BEN.  ASSO.  133  Pa. 

142,  19  Atl.  355. 
Construction   of  Insurance   term   "sickness." 

Cited  in  Robillard  v.  Societe  St.  Jean  Baptiste  de  Centreville,  21  R.  I.  350,  45 
L.  R.  A.  560,  79  Am.  St.  Rep.  806,  43  Atl.  635,  holding  "sicknes«"  under  benefit 
association's  by-laws,  includes  insanity  and  mental  alienatioii. 

Cited  in  notes  in  (52  Am.  St.  Rep.  570;  14  Eng.  Rul.  Gas.  28)  on  construction 
of  insurance  term  "sickness." 

7  L.  R.  A.  211,  ROOP  v.  REAL  ESTATE  INVEST.  CO.  132  Pa.  496,  19  Atl.  278. 
Statutory  rigrnts  and  liability  of  feme  covert. 

Cited  in  Partick  v.  Smith,  165  Pa.  528,  30  Atl.  1044,  holding  wife  not  liable  on 
draft  and  note  indorsed  by  her  for  accommodation  of  husband;  Kohn  v.  Collison. 
1  Marv.  (Del.)  113,  27  Atl.  834,  holding  wife  not  liable  on  indorsement  of  hus- 
band's note  given  in  payment  of  his  sole  debt ;  Schmidt  v.  Stutzbach,  10  Kulp. 
470;  and  Bodine  v.  Keats,  10  Kulp,  436,  opening  judgment  by  confession  against 
wife  on  debt  on  which  she  was  surety  for  husband;  Wiseman  v.  Fleischer 

8  Lane.  L.  Rev.  375,  10  Pa.  Co.  Ct.  301,  6  Kulp,  274,  setting  aside  confessed  judg- 
ment on  note  materially  altered  by  insertion  of  words  asserting  executions  in  pay- 
ment of  individual  indebtedness;   McCrea  v.  Sisler,  23  Pa.  Co.  Ct.  640,  holding 
wife's  judgment  note  as  surety  for  husband  not  support  judgment,  in  spite  of  sub- 
sequent agreement  in  behalf  of  separate  estate  to  pay,  on  assignment  of  claims 
against  husband;   Miller  v.  Billingfelt,   18  Lane.  L.  Rev.  380,  holding  judgment 
for  want  of  affidavit  of  defense  cannot  be  entered  on  bond  where  one  of  defend- 
ants shows  herself  merely  surety  for  husband;  Walter  v.  Jones,  148  Pa.  590,  24 
Atl.  119,  holding  purchase  by  wife  from  vendee  at  sheriff's  sale  of  husband's  prop- 
erty, valid  against  his  creditors;  McCoy's  Estate,  11  Pa.  Co.  Ct.  11,  1  Pa.  Dist. 
R.  61,  holding  husband  necessary  party  to  partition  proceedings  of  wife's  real  es- 
tate; Walter  v.  Kensinger,  10  Lane.  L.  Rev.  269,  11  Lane.  L.  Rev.  52,  13  Pa.  Co. 
Ct.  224,  holding  wife  cannot  name  damages  in  personal  action  for  injury  render- 
ing her  unable  to  do  household  work;  Heacock  v.  Heacock,  108  Iowa,  545,  75  Am. 
St.  Rep.  273,  79  N.  W.  353,  holding  wife  cannot  validly  contract  with  husband 
for  services  where  his  disability  not  removed  by  statute;  Sweigart  v.  Conrad,  16 
Lane.  L.  Rev.  343,  striking  off  confessed  judgment  against  married  woman  on  her 
surety  note,  where  record  fails  to  show  statutory  liability;  Turner  v.  Laubagh,  6 
Kulp,  370,  11  Pa.  Co.  Ct.  634,  holding  married  woman  not  estopped  on  motion  for 
new  trial,  by  failure  to  request  judgment  on  pleadings  in  action  on  note  showing 
coverture  but  not  bringing  case  within  statutory  liability;   Sibley  v.  Robertson, 
212  Pa.  28,  61  Atl.  426,  holding  that  the  intent  and  not  the  form  of  the  trans- 
action  controls   as   to  the   nature   of  the   obligation   entered  by  feme   covert  as 
determining  whether  her  liability   is  that  of   a  surety  or   principal;    Miller   v. 
Billingfelt,  11  Pa.  Dist.  R.  58,  holding  feme  covert's  signature  on  a  bond,  as  a 
surety  not  binding  against  her:   Children's  Aid  Soc.  v.  Binford.  26  Pa.  Super. 
Ct.  556,  holding  that  the  person  pleading  married  woman's  disability  must  prove 
that  her  contract  came  within  a  prohibition,  the  presumption  being  in  favor  of 
legality;   Troup  v.  Bentz,  38  Pa.  Co.  Ct.  407,  holding  that  confession  of  judg- 
ment by  husband  and  wife  will  be  declared  invalid  as  to  latter,  where  it  appears 
to  be  based  on  lease  of  piano  signed  by  wife  as  surety:    Wise  v.  Rudolph,   12 
North.  Co.  Rep.  210,  holding  that  married  woman's  authority  to  make  contracts 
is  noM'  general  as  if  she  were  feme  sole  subject  only  to  two  exceptions  expressed 
in  act  of  3393;   Overpeck  v.  Baltzell,  25  Montsr.  Co.  L.  Rep.  145,  holding  wife 
liable  for  groceries  which  she  purchased  and  agreed  to  pay  for. 

L.R.A.  Au.  Vol.  L— 80. 


7  L.R.A.  211]  L.  R.  A.  CASES  AS  AUTHORITIES.  1266 

Cited  in  footnote  to  Kitchen  v.  Chapin,  57  L.  R.  A.  914,  which  holds  married 
woman  liable  on  her  guaranty  of  note  owned  by  her  and  payable  to  her  order. 

Cited  hi  note   (7  L.  R.  A.  640,  642)   on  wife's  capacity  to  contract. 

Distinguished  in  Glassmire  v.  Neill,  9  Lane.  L.  Rev.  29,  10  Pa.  Co.  Ct.  420, 
upholding  judgment  entered  against  feme  covert  on  judgment  note  where  com- 
plaint brings  obligation  within  statutory  liability,  though  not  apparent  in  note; 
Krumrine  v.  Bottorf,  12  Pa.  Co.  Ct.  69,  holding  confessed  judgment  valid  where 
statements  accompanying  same  show  statutory  liability  in  addition  to  coverture ; 
Kuhn  v.  Ogilvie,  178  Pa.  307,  35  Atl.  957,  holding  mortgage  by  wife  to  secure 
husband's  debt  binding;  Warder,  B.  &  G.  Co.  v.  Stewart,  2  Marv.  (Del.)  279, 
holding  wife  bound  on  note  executed  as  surety  for  husband ;  Packer  v.  Taylor.  12 
Pa.  Co.  Ct.  523,  holding  feme  covert  liable  on  promissory  note  given  in  purchase 
of  land;  Bauck  v.  Swan,  146  Pa.  450,  23  Atl.  242,  holding  broker  entitled  to  com- 
missions on  sale  of  married  woman's  property,  where  ratified  by  her;  Latrobe 
Bldg.  &  L.  Asso.  v.  Fritz,  152  Pa.  229,  25  Atl.  558,  holding  judgment  bond  exe- 
cuted by  feme  covert  to  secure  loan  for  improvements  on  separate  property,  valid ; 
Sterrett  v.  Schlotthauer,  10  Lane.  L.  Rev.  233,  and  Milligan  v.  Phipps,  153  Pa. 
211,  25  Atl.  1121,  holding  mechanic's  lien  valid  without  describing  owner  as  mar- 
ried woman  and  work  essential  to  separate  estate;  Bankard  v.  Shaw,  199  Pa.  629, 
49  Atl.  230,  Affirming  23  Pa.  Co.  Ct.  566,  holding  judgment  on  note  given  by 
feme  covert  in  settlement  of  mechanic's  lien  enforceable  against  her  separate 
property  in  spite  of  voluntary  conveyance  to  children;  Reed  v.  Stouffer,  14  Pa. 
Co.  Ct.  508,  11  Lane.  L.  Rev.  253,  holding  contract  for  sale  of  land  jointly  owned 
by  husband  and  wife  specifically  enforceable,  without  separate  acknowledgment 
of  contract  by  wife;  Guignon  v.  Covell,  10  Pa.  Co.  Ct.  196,  opening  judgment  for 
reception  of  evidence  where  allegation  that  defendant's  note  mere  guaranty  of 
husband's  debt,  controverted;  Koechling  v.  Henkel,  144  Pa.  219,  22  Atl.  808,  hold- 
ing stranger  cannot  impeach  judgment  regular  on  face  confessed  by  married 
woman;  Breckwoldt  v.  Morrrs,  149  Pa.  293,  24  Atl.  300,  holding  married  woman 
cannot  attack  prima  facie  vaJid  judgment  in  collateral  action  against  sheriff  for 
trespass  in  levying  thereunder. 

Disapproved  in  Sweigart  v.  Conrad,  17  Lane.  .L.  Rev.  66,  refusing  to  go  behind 
record  to  discover  defendant's  coverture  on  motion  to  strike  off  judgment:  Mc- 
Intire  v.  Bimber,  8  Lane.  L.  Rev.  227,  9  Pa.  Co.  Ct.  464,  refusing  to  strike  off 
judgment  valid  on  its  face  for  failure  of  record  to  show  that  defendant  was  a 
married  woman  where  evidence  establishes  her  liability;  Pantal  v.  Spears.  29 
Pa.  Co.  Ct.  103,  holding  that  a  confessed  judgment  against  three  joint  makers 
of  a  note  should  be  opened  instead  of  stricken  where  it  appears  that  a  feme 
covert  one  of  the  confessed  makers  appears  to  have  signed  merely  as  a  surety. 
Unconscionable  contracts. 

Cited  in  note  (81  Am.  St.  Rep.  665)   on  unconscionable  contracts. 

~  L.  R.  A.  213,  UPDEGROVE  v.  PENNSYLVANIA  SCHUYLKILL  VALLEY  R. 

CO.  132  Pa.  540,  19  Atl.  283. 
Release  of  damages  on  grant  of  right  of   \vny. 

Cited  in  McDonald  v.  Southern  California  R.  Co.  101  Cal.  215,  35  Pac.  643, 
holding  conveyance  of  right  of  way  as  already  operated  prevents  grantor  from 
complaining  of  private  nuisance  by  use  of  insufficient  bridge  then  in  existence; 
Kemp  v.  Pennsylvania  R.  Co.  156  Pa.  442,  32  W.  N.  C.  423.  26  Atl.  1074,  holding 
railroad  not  liable,  after  release,  for  obstruction  of  plaintiff's  way  across  tracks; 
Stadler  v.  Missouri  River  Power  Co.  133  Fed.  323,  holding  a  release  from  dam- 
ages on  grant  of  right  to  raise  dam  carried  with  it  all  rights  necessary  to  exercise 
of  the  grant  and  covered  all  those  elements  which  could  be  implied  from  its 


12G7  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  214 

terms;  McCully  v.  Pittsburg  R.  Co.  44  Pa.  Super.  Ct.  322,  to  the  point  that 
grant  of  right  of  way  to  railroad  includes  all  the  company  may  lawfully  and 
adversely  take  from  grantor;  White  v.  Philadelphia  &  R.  R,  Co.  46  Pa.  Super. 
Ct.  375,  holding  that  abutting  owner  cannot  recover  for  injury  from  surface 
water  resulting  from  construction  of  railroad  in  absence  of  negligent  construction 
or  maintenance;  Smith  v.  Pittsburg  R.  Co.  57  Pittsb.  L.  J.  311,  holding  that 
railroad  to  which  landowner  has  granted  right  of  way  can  change  from  narrow 
gauge  to  standard  gauge  and  from  steam  to  electricity. 

Cited  in  note  ( 59  L.  R.  A.  868 )  on  liability  for  damming  back  water  of  stream. 

Distinguished  in  Fremont,  E.  &  M.  Valley  R.  Co.  v.  Harlin,  50  Neb.  703,  36  L. 
R.  A.  420,  61  Am.  St.  Rep.  578,  70  N.  W.  263,  holding  release  of  damages  in  right- 
of-way  deed  should  have  no  greater  effect  than  judgment  in  condemnation  proceed- 
ing; McMinn  v.  Pittsburgh,  M.  &  Y.  R,  Co.  147  Pa.  11,  23  Atl.  325,  holding  re- 
lease does  not  absolve  railroad  from  subsequent  negligence  in  failing  to  make 
proper  or  sufficient  drains  or  culverts. 

7  L.  R.  A.  214,  ADAMS  EXP.  CO.  v.  HARRIS,  120  Ind.  73,  16  Am.  St.  Rep.  315, 

21  N.  E.  340. 
.Sufficiency   of  pleading. 

Cited  in  Continental  Ins.  Co.  v.  Miller,  4  Ind.  App.  557,  30  N.  E.  718,  holding 
averments  of  complaint  sufficient  plea  of  tender  of  money  due  on  instalment  note 
to  keep  policy  alive;  Smythe  v.  Scott,  124  Ind.  184,  24  N.  E.  685,  holding  trustees 
of  commandery  of  Knights  Templar  a  corporation  entitled  to  sue  its  treasurer 
for  wrongful  conversion  of  its  funds. 
-——  An  to  Incorporation  of  party. 

Cited  in  Ohio  Oil  Co.  v.  Detamore,  165  Ind.  247,  73  N.  E.  906,  holding  com- 
plaint proper  naming  defendants  as  "Ohio  Oil  Company,"  without  alleging  it  to 
be  a  corporation;  Ft.  Wayne  Gas  Co.  v.  Nieman,  33  Ind.  App.  181,  71  N.  E.  59, 
holding  that  "Ft.  Wayne  Gas  Co."  imparts  that  it  is  a  corporation  and  it  is 
therefore  unnecessary  to  specifically  aver  that  it  is  a  corporation. 

Distinguished  in  Bascom  v.  Toner,  5  Ind.  App.  234,  31  N.  E.  856,  holding  the 
Christian  name  of  the  plaintiff  must  be  given  in  the  complaint. 

Disapproved  in  State  v.  Chicago,  M.  &  St.  P.  R.  Co.  4  S.  D.  263,  46  Am.  St 
Rep.  783,  56  N.  WT.  894,  holding  incorporation  of  company  must  be  alleged  in  the 
complaint. 
Carrier's  liability. 

Cited  in  Bird  v.  Southern  R.  Co.  99  Tenn.  725,  63  Am.  St.  Rep.  856,  42  S.  W. 
451.  holding  intermediate  carrier  liable  for  loss  of  trees  held  for  freight  without 
notification  to  shipper. 
Competency    of    employee's    declaration    against    company. 

Cited  in  Missouri  P.  R.  Co.  v.  Gernan,  84  Tex.  143,  19  S.  W.  461,  holding  dec- 
larations of  freight  agent  of  railway  competent  evidence  against  railway  in 
action  for  loss  of  cotton. 

Cited  in  note  (131  Am.  St.  Rep.  312)   on  declarations  and  acts  of  agents. 
Carrier's  contract  for  limited  liability. 

Cited  in  Pacific  Exp.  Co.  v.  Foley,  46  Kan.  476,  12  L.  R.  A.  807,  26  Am.  St.  Rep. 
107,  26  Pac.  665  (dissenting  opinion),  majority  holding  express  company  may 
limit  its  liability  for  all  loss  in  excess  of  $50  for  property  transported;  Adams 
Exp.  Co.  v.  Carnahan,  29  Ind.  App.  611,  94  Am.  St.  Rep.  279,  63  N.  E.  245,  hold- 
ing contract  limiting  liability  strictly  construed  against  carrier  when  value  of 
property  expressed  at  greater  value  than  $50:  Adams  Exp.  Co.  v.  Carnahan,  29 
3nd.  App.  610,  94  Am.  St.  Rep.  279,  63  N,  E.  245,  holding  carrier  can  limit  its 


7  L.R.A.  214]  L.  R.  A.  CASES  AS  AUTHORITIES.  1208 

liability  as  to  value  of  property  transported;  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Nicholai,  4  Ind.  App.  124,  51  Am.  St.  Rep.  206,  30  N.  E.  424,  holding  jury  might 
infer  negligence  by  carrier  not  accounting  or  attempting  to  account  for  failure 
to  deliver  trunk;  Pittsburg,  C.  C.  &  St.  L.  R,  Co.  v.  Viers,  113  Ky.  535,  68  S.  W. 
469,  holding  connecting  carrier,  which  does  not  limit  its  liability,  receives  stock 
under  terms  of  contract  with  initial  carrier;  United  States  Exp.  Co.  v.  Joyce, 
36  Ind.  App.  4,  69  N.  E.  1015,  on  the  valuation  of  property  in  shipping  contract 
as  controlling  recovery  for  damage  thereto. 

Cited  in  footnote  to  Union  State  Bank  v.  Fremont,  E.  &  M.  Valley  R.  Co.  59 
L.  R,  A.  939,  which  sustains  initial  carrier's  right  to  limit  liability  to  own  line. 

Cited  in  notes  (13  Am.  St.  Rep.  784)   on  extortion  of  unauthorized  stipulations 
from   shippers   and  their  effect;     (18   Am.   St.  Rep.   126)    on   limiting   carrier's 
liability;    (23  Am.  St.  Rep.  597)   on  limitation  of  amount  of  carrier's  liability. 
As  affecting:  rights  of  connecting:  carrier. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  Teeters,  166  Ind.  349,  5  L.R.A.(N.S.) 
431,  77  N.  E.  599,  holding  connecting  carrier  liable  for  injury  by  negligence  to 
tender  of  stock  riding  in  stock  car  under  a  limited  liability  contract  for  benefit 
of  connecting  carriers  entered  into  with  initial  carrier;  Harby  v.  Southern  R. 
Co.  75  S.  C.  325,  55  S.  E.  760,  holding  connecting  carrier  entitled  to  benefit  of 
limiting  value  clause  in  special  contract  between  initial  carrier  and  shipper 
where  the  contract  provides  for  such  benefit. 
Waiver  of  carrier's  lien. 

Cited  in  note  (5  Eng.  Rul.  Cas.  285)  on  loss  of  carrier's  right  to  retain  goods 
until  payment  of  freight. 

7  L.  R.  A.  217,  EQUITABLE  L.  ASSUR.  SOC.  v.  HAZLEWOOD,  75  Tex.  338, 

16  Am.  St.  Rep.  893,  12  S.  W.  621. 
Warranties  In  Insurance. 

Cited  in  Phoenix  Assur.  Co.  v.  Coffman,  10  Tex.  Civ.  App.  637,  32  S.  W.  810, 
holding  negative  to  question  whether  insurance  had  been  refused  does  not  void 
policy  if  refusal  was  on  ground  that  that  kind  of  property  was  not  insured; 
Mutual  L.  Ins.  Co.  v.  Baker,  10  Tex.  Civ.  App.  520,  31  S.  W.  1072,  holding  false 
warranty  renders  policy  void  though  untruth  due  to  inadvertence;  Phoenix 
Assur.  Co.  v.  Coffman,  10  Tex.  Civ.  App.  634,  32  S.  W.  810,  holding  warranty  to 
keep  watchman  on  premises  not  false  because  found  asleep  at  time  of  fire;  holding 
materiality  of  warranties  will  not  be  considered;  Kansas  Mut.  L.  Ins.  Co.  v. 
Coalson,  22  Tex.  Civ.  App.  70,  54  S.  W.  388,  holding  that  warranties  will  be 
strictly  limited  to  precise  undertaking  of  party;  Brown  v.  Palatine  Ins.  Co.  89 
Tex.  595,  35  S.  W.  1060,  holding  language  selected  by  insurer  will  be  construed 
most  favorably  to  assured;  Bills  v.  Hibernia  Ins.  Co.  87  Tex.  551,  29  L.  R.  A. 
707,  47  Am.  St.  Rep.  121,  29  S.  W.  1063,  holding  language  to  bring  about  for- 
feiture strictly  construed;  Supreme  Lodge,  K.  &  L.  H.  v.  Payne,  101  Tex.  455. 
15  L.R.A.  (N.S.)  1281,  108  S.  W.  1160,  holding  that  where  the  answers  to  ques- 
tions as  written  in  the  application  are  made  part  of  the  contract  of  insurance 
they  constitute  a  warranty  the  breach  of  which  will  avoid  the  policy;  Daniel 
v.  Modern  Woodmen,  53  Tex.  Civ.  App.  574,  118  S.  W.  211,  holding  that  if 
words  of  insurance  policy  admit  of  two  constructions  that  one  will  be  adopted 
most  favorable  to  insured;  Hoeland  v.  Western  U.  L.  Ins.  Co.  58  Wash.  106, 
107  Pac.  866,  holding  that  warranties  in  application  for  insurance  are  strictly 
construed. 

Cited  in  footnotes  to  Sternaman  v.  Metropolitan  L.  Ins.  Co.  57  L.  R.  A.  318r 
which  denies  insurer's  right  to  rely  on  warranty  by  applicant  that  answers  prop- 


1209  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  217 

«rly  recorded,  where  medical  examiner  knew  otherwise;  Home  Ins.  Co.  v.  Han- 
cock, 52  L.  R.  A.  665,  which  holds  statement  that  life  tenant  has  fee-simple  title 
to  insured  property  not  avoid  policy  where  agent  knew  facts;  Globe  Mut.  L.  Ins. 
Asso.  v.  Wagner,  52  L.  R.  A.  649,  which  holds  policy  not  avoided  by  false  state- 
ment that  none  of  applicant's  brothers  dead. 

Cited  in  notes   (10  L.  R.  A.  668)   on  warranty  of  truth  of  representations  by 
insured;   (16  L.  R.  A.  37,  38)  on  effect  of  knowledge  by  insurer's  agent  of  falsity 
of  statements  in  application. 
"\VHfireringr   policy. 

Cited  in  Hinton  v.  Mutual  Reserve  Fund  Life  Asso.  135  N.  C.  324,  65  L.R.A. 
166,  47  S.  E.  474,  holding  policy  taken  out  by  one  having  no  insurable  interest 
in  life  of  insured,  invalid. 

Cited  in  notes  (12  L.R.A.  410)   on  invalidity  of  wager  policy;   (6  L.R.A.  (N.S.) 
129)    on  validity  of  assignment  not  made  as  cover  for  wager  policy  of  life  in- 
surance to  one  having  no  insurable  interest. 
When   insured   estopped. 

Cited  in  Fitzmaurice  v.  Mutual  L.  Ins.  Co.  84  Tex.  65,  19  S.  W.  301,  holding 
affirmance  by  insured  of  correctness  of  statements  in  application  binding  even  if 
known  to  be  false  to  agent. 
When   insurer  estopped. 

Cited  in  Mutual  L.  Ins.  Co.  v.  Blodgett,  8  Tex.  Civ.  App.  50,  27  S.  W.  286, 
holding  company  bound  by  answers  dictated  by  its  own  medical  examiner;  New 
York  L.  Ins.  Co.  v.  Russell,  23  C.  C.  A.  54,  40  U.  S.  App.  530,  77  Fed.  106,  holding 
company  bound  by  facts  disclosed  to  agent  and  medical  examiner  though  answer 
directed  by  latter  wrong;  Mutual  Ben.  L.  Ins.  Co.  v.  Robison,  22  L.  R.  A.  331, 
7  C.  C.  A.  469,  19  U.  S.  App.  266,  58  Fed.  730,  holding  company  estopped  from 
taking  advantage  of  either  error  or  blunder  of  examiner  in  writing  answers  when 
correct  answers  given;  Providence  Life  Assur.  Soc.  v.  Reutlinger,  58  Ark.  543, 
25  S.  W.  835,  holding  company  estopped  from  alleging  falsity  of  answers  to  ques- 
tions of  medical  examiner  to  whom  correct  answers  made. 

Cited  in  footnote  to  Follett  v.  United  States  Mut.  Acci.  Asso.  12  L.  R.  A.  315, 
which  holds  representation  of  freedom  from  infirmity  waived  by  agent's  knowledge 
of  applicant's  deafness. 

Cited  in  notes  (30  L.  R.  A.  636)  on  effect  of  riders  or  slips  attached  to  in- 
surance policy;  (10  L.R.A.  610)  on  employment  of  clerks  by  insurance  agent; 
{4  L.R.A.  (N.S.)  608)  on  effect  of  agent's  insertion  in  application  of  false  an- 
swers to  questions  correctly  answered  by  insured;  (16  L.R.A. (N.S.)  1212,  1250, 
1262)  on  parol-evidence  rule  as  to  varying  or  contracting  written  contracts,  as 
affected  by  doctrine  of  waiver  or  estoppel  as  applied  to  insurance  policies;  (107 
Am.  St.  Rep.  Ill)  on  waiver  of  provisions  of  non-waiver  or  written  waiver  of 
conditions  and  forfeitures  in  policies. 
Insarafole  interest. 

Cited  in  Crosswell  v.  Connecticut  Indemnity  Asso.  51  S.  C.  116,  28  S.  E.  200, 
holding  son's  insurable  interest  on  mother's  life  supports  assignment  by  bene- 
ficiary of  policy  procured  by  mother  on  own  life  for  benefit  of  daughter;  Cheeves 
v.  Anders,  87  Tex.  291,  47  Am.  St.  Rep.  107.  28  S.  W.  274,  holding  surviving 
partner  has  interest  in  so  much  of  policy  issued  on  life  of  deceased  copartner  as 
was  paid  in  premiums  by  partnership;  Mutual  L.  Ins.  Co.  v.  Blodgett,  8  Tex.  Civ. 
App.  49,  27  S.  W.  286,  holding  beneficiary  without  insurable  interest  will  be 
treated  as  trustee  to  collect  proceeds  of  policy  for  those  legally  entitled ;  Ex- 
change Bank  v.  Loh,  104  Ga.  453,  44  L.  R.  A.  376,  31  P.  E.  459,  holding  creditor's 
insurable  interest  in  life  of  debtor  does  not  exceed  indebtedness ;  Goldbaum  v. 


7  L.R.A.  217]  L.  R.  A.  CASES  AS  AUTHORITIES.  1270 

Blum,  79  Tex.  641,  15  S.  W.  504,  holding  widow  and  children  entitled  to  balance 
of  proceeds  of  life  insurance  policy  after  payment  of  debt  for  which  it  was  taken 
out;  Cameron  v.  Barcus,  31  Tex.  Civ.  App.  49,  71  S.  W.  423,  holding  community- 
debt  creditor  of  deceased  husband  without  insurable  interest  in  life  of  the  wife; 
Farmers'  &  T.  Bank  v.  Johnson,  118  Iowa,  284,  91  N.  W.  1074,  denying  right  of 
daughter,  as  beneficiary  in  policy  of  father,  to  deny  her  insurable  interest  after 
assignment  of  policy;  Woods  v.  Woods  (Woods  v.  Riner)  330  Ky.  170,  19  L.R,A. 
(N.S.)  236,  113  S.  W.  79,  holding  the  relationship  of  parent  and  child  sufficient 
of  itself  to  give  either  an  insurable  interest  in  life  of  the  other;  Wilton  v.  New 
York  L.  Ins.  Co.  34  Tex.  Civ.  App.  158,  78  S.  W.  403,  holding  niece  has  no- 
insurable  interest  in  life  of  uncle  from  whom  she  has  no  pecuniary  expectations 
beyond  an  occasional  gift. 

Cited  in  footnotes  to  Mutual  Reserve  Fund  Life  Asso.  v.  Hurst,  20  L.  R.  A.  761  r 
which  holds  assignee's  insurable  interest  as  creditor  not  condition  of  recovery  on 
policy;  Hurd  v.  Doty,  21  L.  R.  A.  746,  w-hich  denies  right  of  trustee  receiving 
proceeds  of  insurance  policy  to  refuse  payment  to  beneficiaries  as  having  no  in- 
surable interest;  Adams  v.  Reed,  35  L.  R.  A.  692,  which  holds  woman  has  in- 
surable interest  in  life  of  son-in-law. 

Cited  in  notes  (25  L.R.A.  630)  on  right  to  take  life  insurance  for  benefit  of 
stranger;  (128  Am.  St.  Rep.  303)  on  life  insurance  in  favor  of  persons  having 
no  insurable  interest;  (13  Eng.  Rul.  Cas.  397,  400)  on  insurable  interest  in  life. 
Charge  to  jnry. 

Cited  in  Phoenix  Assur.  Co.  v.  Coffman,  10  Tex.  Civ.  App.  633,  32  S.  W.  81  a, 
holding  charge  to  jury  properly  limited  to  issues  presented  by  pleadings  and  evi- 
dence. 

Cited  in  note  (10  L.  R.  A.  669)  on  instructions  of  court  in  action  on  insurance 
policy. 
What  passes  l»y  assignment   of  policy. 

Cited  in  Cawthon  v.  Perry,  76  Tex.  385,  13  S.  W.  268,  holding  creditor  with 
assignment  of  policy  on  life  of  debtor  takes  only  amount  of  his  debt  with  pre- 
miums paid  by  him;  Crosswell  v.  Connecticut  Indemnity  Asso.  51  S.  C.  108,  28 
S.  E.  200,  holding  bona  fide  assignment  may  be  made  of  policy  with  consent  of 
parties;  New  York  L.  Ins.  Co.  v.  Rosenheim,  56  Mo.  App.  33,  holding  policy  may 
be  assigned  by  consent  of  parties  as  security  for  debt  to  amount  of  indebtedness; 
Stevens  v.  G«rmania  L.  Ins.  Co.  26  Tex.  Civ.  App.  159,  62  S.  W.  824,  holding 
assignment  of  policy  by  insured  and  contingent  beneficiary,  defeated  by  death  of 
latter. 

Cited  in  notes    (9  L.R.A.  662)    on  assignability  of  life  insurance  policy;    (87 
Am.   St.   Rep.   511)    on   title   of   creditor,   assignee   of   life    insurance   policy,   to 
proceeds;   (87  Am.  St.  Rep.  513)  on  effect  of  invalid  assignment. 
What   Is   insurance   company. 

Cited  in  Mutual  Reserve  L.  Ins.  Co.  v.  Dobler,  70  C.  C.  A.  134,  137  Fed.  555r 
holding  an  answer  of  "none"  to  an  inquiry  as  to  other  life  insurance  in  applica- 
tion is  proper  where  applicant  holds  accident  policies. 

Cited  in  note   (38  L.  R.  A.  33,  57)   on  whether  benefit  association  is  an  insur- 
ance company. 
Forfeiture  of  policy. 

Cited  in  Scottish  Union  &  Nat.  Ins.  Co.  v.  Andrews,  40  Tex.  Civ.  App.  191 T 
89  S.  W.  419,  holding  failure  to  itemize  goods  sold  on  credit  from  an  insured 
stock  not  a  failure  to  comply  with  policy  requirement  of  booking  the  value  of 
goods  sold  on  credit. 


1271  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  226 

Previous  rejection  by  benefit  association  as  refusal  of  insurance. 

Cited  in  note  (4  L.R.A.  (N.S. )  248)  on  previous  rejection  by  benefit  asso- 
ciation as  declination  or  refusal  of  insurance  within  meaning  of  application  for 
life  insurance. 

7  L.  R,  A.  224,  ADAMS  v.  SEAMAN,  82  Cal.  636,  23  Pac.  53. 
Stipulations  in  notes  affecting:  negotiability. 

Followed  in  Cotton  v.  John  Deere  Plow  Co.  14  Okla.  607,  78  Pac.  321,  holding: 
a  note  non-negotiable  when  stipulating  for  payment  of  attorneys'  fees  in  event 
of  collection  by  attorney  such  fees  to  be  based  on  percentage  of  amount  collected. 

Cited  in  Haber  v.  Brown,  101  Cal.  449,  35  Pac.  1035,  and  First  Nat.  Bank  v. 
Babcock,  94  Cal.  104,  28  Am.  St.  Rep.  94,  29  Pac.  415,  holding  note  stipulating  for 
attorney's  fee  in  case  of  suit  not  negotiable;  Randolph  v.  Hudson,  12  Okla.  526, 
74  Pac.  946,  holding  not  negotiable,  note  providing  for  interest,  if  not  paid  at 
maturity;  Prescott  v.  Grady,  91  Cal.  521,  27  Pac.  755,  holding  demand  necessary 
to  charge  maker  of  note  with  attorney's  fees  and  legal  expenses  stipulated  for 
therein;  Mason  v.  Luce,  116  Cal.  238,  48  Pac.  72,  holding  valid,  stipulation  In 
note  for  payment  of  attorney's  fee  in  case  of  suit :  Findlay  v.  Potts,  131  Cal. 
386,  63  Pac.  694,  holding  note  non-negotiable  if  containing  stipulation  for  attor- 
neys' fees;  Meyer  v.  Weber,  133  Cal.  685,  65  Pac.  lllO,  holding  note  non-nego- 
tiable providing  for  attorneys'  fees  in  case  of  foreclosure  of  mortgage  securing 
such  note;  Stadler  v.  First  Nat.  Bank,  22  Mont.  202,  74  Am.  St.  Rep.  582,  56 
Pac.  Ill,  holding  note  stipulating  for  payment  of  attorneys'  fees  in  case  of  suit 
not  negotiable;  Cornish  v.  Woolverton,  32  Mont.  469,  108  Am.  St.  Rep.  598,  81 
Pac.  4,  holding  note  non-negotiable  which  provides  for  increased  rate  of  interest 
on  principal  and  interest  not  paid  when  due;  Second  Nat.  Bank  v.  Basuier,  12 
C.  C.  A.  517,  27  U.  S.  App.  541,  65  Fed.  61,  holding  a  note  drawn  "with  exchange" 
and  cost  of  collection  non-negotiable. 

Cited  in  footnote  to  Oppenheimer  v.  Farmers'  &  M.  Bank,  33  L.  R.  A.  767r 
which  holds  negotiability  of  note  not  affected  by  stipulation  for  attorneys'  fees,, 
inoperative  until  maturity  and  dishonor. 

Cited  in  notes  (8  L.R.A.  394)  on  stipulations  and  agreements  which  destroy 
negotiability;  (125  Am.  St.  Rep.  207)  on  agreements  and  conditions  destroying 
negotiability. 

Distinguished  in  Union  Loan  &  T.  Co.  v.  Southern  California  Motor  Road  Co> 
51  Fed.  849,  holding  bonds  negotiable  though  containing  a  provision  for  payment 
before  maturity,  at  any  date  when  the  semi-annual  interest  is  due. 

7  L.  R.  A.  226,  HERRMAN  v.  ROBERTS,  119  N.  Y.  37,  28  N.  Y.  S.  R.  843,  16 

Am.  St.  Rep.  801,  23  N.  E.  442. 
Rigrhts  and   duties   incident   to   easement. 

Cited  in  Harvey  v.  Crane,  85  Mich.  332,  12  L.  R.  A.  603,  48  N.  W.  582,  holding 
owner  of  private  road  may  fence  it  as  incident  to  the  reasonable  enjoyment  of 
it;  Abbott  v.  Jackson,  84  Me.  457,  24  Atl.  900,  holding  lessee,  and  not  lessor,  of 
shed  bound  to  keep  in  repair  crossing  over  railroad  leading  to  shed  and  exclusively 
used  by  lessee;  O'Shaughnessey  v.  O'Rourke,  36  Misc.  519,  73  N.  Y.  Supp.  1070r 
holding  owner  of  dominant  estate  has  no  right  to  remove  trees  growing  in  right 
of  way  without  notifying  owner  of  soil;  Rotch  v.  Livingston,  91  Me.  472,  40  Atl. 
426,  holding  grantee  of  right  of  way  is  entitled  to  its  use  for  entire  width  that 
it  is  laid  out  by  deed;  Weed  v.  McKeg,  37  Misc.  109,  74  N.  Y.  Supp.  250,  holding 
owner  of  servient  estate  may  build  such  arch  over  passageway  as  will  not  inter- 
fere with  its  reasonable  use;  Woodworth  v.  Genesee  Paper  Co.  18  App.  Div.  512,. 
46  N.  Y.  Supp.  99,  holding  riparian  owner  cannot,  after  using  water  of  stream, 


7  L.R.A.  226]  L.  R.  A.  CASES  AS  AUTHORITIES.  1272 

discharge  it  as  incident  to  the  right,  upon  land  of  adjoining  owner;  Wells  v. 
Tolman,  88  Hun,  441,  34  N.  Y.  Supp.  840,  holding  that  owner  of  soil  has  no  right 
to  sow  to  grain  a  permanent  road  the  use  of  which  is  granted  to  another,  and 
that  dominant  estate  can  repair  roadway  over  right  of  way;  Townsend  v.  Bell, 
70  Hun,  559,  24  N.  Y.  Supp.  193,  holding  reasonableness  of  use  of  water  by  ri- 
parian proprietor  must  be  determined  by  jury  or  trial  court;  Ballard  v.  Titus, 
157  Cal.  681,  110  Pac.  118,  holding  that  owner  of  right  of  way  has  right  to 
unobstructed  use  to  limits  specified,  even  though  result  be  to  give  him  wider  way 
than  necessary;  Galletly  v.  Bockius,  1  Cal.  App.  728,  82  Pac.  1109,  holding 
owner  of  servient  estate  may  convey  same  subject  to  the  easement  and  may 
reserve  to  himself  a  second  easement  the  use  under  which  must  be  reasonable 
with  respect  to  rights  of  first  easement  holder;  Seaboard  Air  Line  R.  Co.  v. 
McMurrain,  132  Ga.  185,  63  S.  E.  1098,  holding  a  grant  of  a  right  of  way 
for  tracks  carries  with  it  the  right  to  grade  and  any  damage  caused  by  grading 
is  incident  to  the  grant  as  respecting  both  grantees  of  the  right  and  the  land 
subject  to  grant;  Berg  v.  Neal,  40  Ind.  App.  580,  82  X.  E.  802,  holding  a  10-foot 
gate  over  a  16£-foot  private  right  of  way  is  not  an  obstruction  to  the  right  of 
free  passage  in  the  dominant  owner  by  the  servient  owner:  Thompson  v.  Ger- 
mania  L.  Ins.  Co.  97  Minn.  92,  106  N.  W.  102,  holding  grantor  of  an  easement 
owning  the  fee  may  so  use  it  as  not  to  interfere  with  the  object  for  which  it 
was  created;  Jarman  v.  Freeman,  78  N.  J.  Eq.  468,  79  Atl.  1065,  holding  that 
owner  of  fee,  may  suspend  structure  above  right  of  way  granted  by  him,  if  he 
does  not  interfere  with  easement  he  has  granted;  New  York  C.  &  H.  R.  R.  Co. 
v.  Shattemuc  Yacht  &  Canoe  Club,  57  Misc.  488,  109  N.  Y.  Supp.  933,  holding 
grantor  of  right  of  way  in  fee  has  the  right  of  crossing  the  same  as  a  servient 
owner  would  have,  the  grantee  having  right  to  premises  granted,  only  for  rail- 
road purposes;  Marion  County  Lumber  Co.  v.  Tilghman  Lumber  Co.  75  S.  C. 
223,  55  S.  E.  337,  holding  that  grantees  of  a  right  of  way  are  held  to  have 
abandoned  any  use  of  the  grant  not  consistent  with  the  rights  granted;  Murray 
v.  Dickson,  57  Tex.  Civ.  App.  625,  123  S.  W.  179,  holding  that  owner  of  right 
of  way  has  right  to  repair  fence  so  as  to  prevent  cattle  trespassing  upon  ad- 
joining land  of  owner  of  fee. 

Cited  in  note  (95  Am.  St.  Rep.  326,  328)  on  rights  and  obligations  of  parties 
to  private  ways. 

Distinguished  in  Alexander  Smith  &  Sons  Carpet  Co.  v.  Ball,  143  App.  Div. 
85,   127   N.  Y.  Supp.   974,  holding  that  where  lands  upon  which  right  of  way 
was  imposed  sloped  to  door  of  mill  owned  by  one  of  grantees,  another  grantee 
cannot,  to  improve  road,  fill  in  slope  so  as  to  cut  off  access  to  mill. 
Construction   of   easement. 

Cited  in  Wells  v.  Tolman,  156  N.  Y.  639,  51  N.  E.  271,  holding  reservation  of 
right  of  way  so  qualified  as  to  apply  only  to  winter  months;  Whitney  v.  Richard- 
son, 59  Hun,  605,  13  N.  Y.  Supp.  861,  holding  omission  of  words  "heirs  and  as- 
signs" in  instrument  to  let  grantee  have  use  of  water  so  long  as  it  is  used  for  run- 
ning cheese  factory,  does  not  limit  grant;  Kinney  v.  Hooker.  65  Vt.  336,  36  Am. 
St.  Rep.  864,  26  Atl.  690,  holding  right  of  way  as  located  by  agreement  of  owner 
of  dominant  and  servient  estates  only  way  belonging  to  subsequent  grantee;  Im- 
maculate Conception  Church  v.  riheffer,  88  Hun,  339,  34  N.  Y.  Supp.  724,  holding 
circumstances  surrounding  situation  of  property  when  easement  of  way  created 
properly  admitted;  Hotchkiss  v.  Young,  42  Or.  452,  71  Pac.  324,  holding  grant  of 
right  of  way  does  not  authorize  construction  of  roadway  so  as  to  obstruct  existing 
irrigation  ditch;  Winslow  v.  Vallejo.  148  Cal.  726,  5  L.R.A.  (N.S.)  865,  113 
Am.  St.  Rep.  349,  84  Pac.  191,  7  A.  &  E.  Ann.  Cas.  851,  holding  the  extent  of 


1273  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  23 1 

the  grant  is  to  be  ascertained  by  consideration  of  the  entire  instrument  creating 
the  easement  in  view  of  the  surrounding  circumstances  and  situation  of  parties 
at  time  of  execution;  Nichols  v.  New  York  &  P.  Teleg.  &  Teleph.  Co.  126  App. 
Div.  196,  110  N.  Y.  Supp.  325  (dissenting  opinion),  on  the  construction  of  an 
easement  with  a  view  to  ascertain  true  intent  of  parties;  People  ex  rel.  Bryan 
v.  State  Tax  Comrs.  67  Misc,  510,  124  N.  Y.  Supp.  711,  holding  a  grant  of  a 
right  of  way  is  an  easement  merely  for  object  granted  and  does  not  pass  the 
estate  itself  or  the  right  to  enjoy  its  exclusive  occupation. 

7  L.  R.  A.  229,  KURSHEEDT  v.  UNION  DIME  SAV.  INST.  118  N.  Y.  358,  28  N. 

Y.  S.  R.  933,  23  N.  E.  473. 
Rigrht   to   redeem   by  reason   of   dower   riuht. 

Cited  in  Campbell  v.  Ellwanger,  81  Hun,  262,  30  N.  Y.  Supp.  792,  holding  wife, 
by  reason  of  inchoate  right  of  dower,  can  redeem  from  mortgagee  in  possession  un- 
der purchase-money  mortgage  given  by  husband;  Mackenna  v.  Fidelity  Trust  Co. 
184  N.  Y.  417,  3  L.R.A.(N.S.)  1071,  112  Am.  St.  Rep.  620,  77  N.  E.  721,  6 
A.  &  E.  Ann.  Gas.  471,  holding  wife  may  redeem  by  reason  of  dower  interest, 
during  life  of  husband,  where  she  is  not  made  a  party  to  mortgage  on  premises 
foreclosed. 
Effect  of  11s  pendens. 

Cited  in  Webster  v.  Pierce,  108  Wis.  414,  83  N.  W.  938,  holding  Its  pendens  in 
ejectment  action  does  not  bind  purchaser  of  defendant  in  that  action  prior  to  filing 
notice;  Jaycox  v.  Smith,  17  App.  Div.  150,  45  N.  Y.  Supp.  299,  holding  notice  of 
Us  pendens  in  action  to  foreclose  equitable  lien  not  notice  to  one  claiming  under 
foreclosure  of  recorded  mortgage. 
Marketable  title. 

Cited  in  notes  (38  L.R.A.(N.S.)  5,  22;  132  Am.  St.  Rep.  1014)  on  what  is 
a  marketable  title;  (20  Am.  St.  Rep.  217)  on  purchaser's  duty  as  to  taking 
defective  title. 

7  L.  R.  A.  231,  KOONS  v.  MELLETT,  121  Ind.  585,  23  N.  E.  95. 
\otiff  of  appeal  to  copartles  of  record. 

Approved  in  Alexander  v.  Gill,  130  Ind.  488,  30  N.  E.  525;  Lowe  v.  Turpie,  147 
Ind.  692,  37  L.  R,  A.  245,  47  N.  E.  150;  Anderson  Glass  Co.  v.  Brakeman,  20  Ind. 
App.  237,  47  N.  E.  937,  —  each  refusing  to  dismiss  appeal  because  of  lack  of  no- 
tice to  parties  to  record  who  are  not  parties  to  judgment;  Bliss  v.  Grayson,  25 
Nev.  340.  59  Pac.  888,  holding  notice  of  appeal  need  not  be  served  upon  the  co- 
defendants  not  appealing  as  to  whom  action  dismissed  over  appellant's  objection 
before  judgment;  Brown  v.  Trexler,  132  Ind.  109,  30  N.  E.  418,  dismissing  ap- 
peal where  notice  not  given  to  coparty  to  judgment;  Cooper  v.  Peterson,  7  Ind. 
App.  416,  34  N.  E.  746,  dismissing  appeal  in  action  on  benefit  certificate  against 
insurer,  administrator,  etc.,  because  notice  not  given  to  administrator;  Holloran 
v.  Midland  R.  Co.  129  Ind.  276,  28  N.  E.  549,  holding  appeal  by  part  of  several 
coparties  without  notice  to  others  not  validated  by  filing  written  appearance  of 
party  not  appealing  after  expiration  of  time  limited  for  appeals. 
Appeals  in  proceedings  for  settlement  of  estates. 

Approved  in  Simmons  v.  Beazel,  125  Ind.  363,  25  N.  E.  344,  holding  appeal  in 
action  by  executrix  to  have  will  construed,  not  in  proceeding  for  settlement  of 
estates;  Rogers  v.  State,  26  Ind.  App.  147,  59  N.  E.  334,  and  Swindle  v.  State,  15 
Ind.  App.  416,  44  N.  E.  60,  both  holding  appeal  in  action  upon  bond,  not  in  mat- 
ter growing  out  of  decedents'  estates;  Mark  v.  Xorth.  155  Ind.  577,  57  N.  E.  902, 
holding  action  by  administrator  to  recover  assets  taken  from  decedent  by  wrong- 


7  L.R.A.  231]  L.  R.  A.  CASES  AS  AUTHORITIES.  1274 

ful  act,  not  connected  with  settlement  of  estate;  Roach  v.  Clark,  150  Ind.  96,  65 
Am.  St.  Rep.  353,  48  N.  E.  796,  and  Mason  v.  Roll,  130  Ind.  262,  29  N.  E.  1135, 
both  holding  appeal  in  action  to  quiet  title,  not  in  matter  connected  with  dece- 
dent's estates;  Galetine  v.  Wood,  137  Ind.  535,  35  N.  E.  901,  holding  appeal  in 
administrator's  action  to  sell  land  and  set  aside  fraudulent  conveyances,  is  gov- 
erned by  decedent's  act;  Paxton  v.  Tyler,  20  Ind.  App.  459,  50  N.  E.  45,  dismissing 
appeal  in  proceeding  by  widow  to  obtain  moneys  paid  on  claims  against  estate, 
to  which  administrator  is  not  party;  Merritt  v.  Straw,  6  Ind.  App.  361,  33  N.  E. 
657,  holding  appeal  in  action  by  administrator  on  decedent's  note,  not  concerning 
settlement  of  estate;  Harrison  Xat.  Bank  v.  Culbertson,  147  Ind.  615,  45  N.  E. 
657,  holding  action  to  recover  from  residuary  devisees  upon  testator's  liability, 
within  decedent's  act  as  to  appeal;  Bollenbacher  v.  Whisnand,  148  Ind.  379,  47 
N.  E.  706,  dismissing  appeal  in  proceeding  by  administrator  to  sell  real  estate, 
because  not  brought  under  statute  regulating  settlement  of  decedent's  estates; 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Etzler,  4  Ind.  App.  32,  34  N.  E.  669,  holding  appeal 
in  action  for  injuring  animals,  not  within  statute  concerning  decedent's  estates 
where  plaintiff  dies  pending  action;  Walker  v.  Steele,  121  Ind.  446,  23  N.  E.  271, 
holding  action  by  administrator  to  recover  note  and  mortgage  assigned  by  dece- 
dent, within  statute  governing  appeals  in  civil  actions. 

Cited  in  Holderman  v.  Wood,  34  Ind.  App.  521,  73  N.  E.  199,  holding  that  in  an 
action  not  involving  the  exercise  of  probate  jurisdiction,  an  appeal  therefrom  is 
governed  by  the  civil  code. 
Liens   upon   distributive   shares. 

Approved  in  Armiger  v.  Reitz,  91  Md.  343,  46  Atl.  990,  holding  creditors  of 
legatee  indebted  to  estate  in  excess  of  distributive  share,  not  entitled  to  sale  of 
legatee's  interest  or  a  receiver  therefor;  Fiscus  v.  Moore,  121  Ind.  555,  7  L.  R.  A. 
237,  footnote  p.  235,  23  N.  E.  362  (distinguished  in  dissenting  opinion),  holding 
mortgage  on  undivided  interest  in  land,  taken  pending  settlement  of  estate  with 
Icnowledge  of  heir's  indebtedness  to  estate,  subject  to  deduction  of  heir's  debt 
from  distributive  share;  Dimmick  v.  Rosenfeld,  34  Or.  104,  55  Pac.  100,  holding 
lands  not  subject  to  execution  on  prior  judgment  against  agent  taking  title  in 
himself  without  principal's  knowledge,  and  then  conveying  to  principal ;  Whip- 
perman  v.  Dunn,  124  Ind.  356,  24  N.  E.  166,  holding  lien  of  judgment  creditor 
subject  to  equities  at  rendition  of  judgment;  Huffman  v.  Copeland,  139  Ind.  231, 

38  N.  E.  861,  holding  agreement  by  husband  with  wife  to  take  specified  sum  of 
money  in  lieu  of  interest  in  her  land  which  would  descend  to  him  by  law,  binding 
•on  his  judgment  creditors;   Clapp  v.  Hadley,  141  Ind.  32,  50  Am.  St.  Rep.  308, 

39  N.  E.  504,  holding  mortgagor  not  entitled  to  surplus  over  amount  of  decree 
on  senior  mortgage  where  same  not  in  excess  of  both  mortgages;  Taylor  v.  Mo- 
<Jrew,  29  Ind.  App.  327,  64  N.  E.  651,  holding  that  judgment  lien  upon  legatee's 
interest  in  land  attached  to  proceeds  of  sale  thereof  in  hands  of  executor. 

Cited  in  footnote  to  Oxsheer  v.  Nave,  37  L.  R.  A.  98,  which  sustains  right  to 
set  off  indebtedness  of  distributee  against  distributive  share  although  purchased 
by  creditor. 
Set-off    of   legatee's    indebtedness    to    estate. 

Approved  in  Holmes  v.  McPheeters,  149  Ind.  590,  49  N.  E.  452,  and  New  v.  New, 
127  Ind.  588,  27  N.  E.  154,  both  holding  distributee  not  entitled  to  distributive 
share  while  indebted  to  the  estate;  Neely  v.  Boyce,  128  Ind.  12,  27  N.  E.  169, 
holding  will  creating  life  estate  with  remainder  over  creates  rights  devested  only 
In  case  sale  necessary  to  pay  debts,  costs,  or  sum  provided  by  the  will  to  be  paid; 
Fiscus  v.  Fiscus,  127  Ind.  285,  26  N.  E.  831,  directing  deduction  from  distributive 
share  of  judgment  debt  within  distributee's  exemptions. 

Cited  in  footnotes  to  Ainsworth  v.  Bank  of  California,  39  L.  R.  A.  686,  which 


1275  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  235 

authorizes  setting  off  against  claim  due  estate  debt  due  from  deceased  though  im- 
mature at  time  of  death;  Gosnell  v.  Flack,  18  L.  R.  A.  158,  which  authorizes  set- 
off  against  distributive  share  of  debt  due  from  insolvent;  Webb  v.  Fuller,  22  L. 
K,  A.  177,  which  authorizes  set-off  of  amount  due  by  legatee  against  distributive 
share;  Re  Baily,  22  L.  R.  A.  444,  which  holds  legacy  to  cosurety  subject  to  deduc- 
tion for  proportionate  share  of  amount  paid  by  testator. 

Distinguished  in  Weaver  v.  Gray,  37  Ind.  App.  42,  76  N.  E.  795,  holding  hus- 
band one-third  interest  in  proceeds  from  sale  of  land  granted  to  wife  for  love 
and  affection  is  not  part  of  assets  of  estate  of  wife  for  distribution  subject  to  a 
set-off  of  administrator's  claim  for  funeral  expenses ;  Marvin  v.  Bowlby,  142  Mich. 
249,  4  L.R.A. (N.S.)  193,  113  Am.  St.  Rep.  574,  105  N.  W.  751,  7  A.  &  E.  Ann.  Cas. 
559,  holding  heirs  indebtedness  to  estate  may  not  be  set-off  against  his  distribu- 
tive share  of  the  real  estate  in  hands  of  administrator  or  proceeds  from  sale 
thereof. 
Parties  to  an  appeal. 

Cited  in  Indianapolis  Traction  &  Terminal  Co.  v.  Holtzclaw,  40  Ind.  App.  315, 
81  N.  E.  1084,  holding  one  of  two  tort  feasors  not  a  party  to  an  appeal  by  the 
other  where  such  tort  feasor  had  verdict  rendered  in  his  favor  alone. 
Limitation  of  lien  of  judgment  to  interest  of  debtor. 

Cited  in  Smith  v.  Farmers'  &  M.  Nat.  Bank,  57  Or.  87,  110  Pac.  410,  holding 
that  land  purchased  with  wife's  money,  but  later  conveyed  to  wife  because  plac- 
ing title  in  husband  was  mistake,  was  not  subject  to  levy  for  payment  of  hus- 
band's debts. 

7  L.  R.  A.  235,  FISCUS  v.  MOORE,  121  Ind.  547,  23  N.  E.  362. 
Deduction  of  debt   from   distributive  share. 

Approved  in  Re  Lietman,  149  Mo.  1 19,  73  Am.  St.  Rep.  374,  50  S.  W.  307,  hold- 
ing that  debts  of  insolvent  legatee  should  be  deducted  from  distributive  share; 
Fiscus  v.  Fiscus,  127  Ind.  284,  26  N.  E.  831,  directing  deduction  from  distributive 
share,  of  judgment  debt  within  distributee's  exemptions ;  Holmes  v.  McPheeters, 
149  Ind.  590,  49  N.  E.  452,  and  New  v.  New,  127  Ind.  586,  27  N.  E.  154,  both 
holding  distributee  not  entitled  to  receive  distributive  share  while  indebted  to 
estate;  Hopkins  v.  Thompson,  73  Mo.  App.  405,  holding  administrator  may  apply 
distributive  share  from  sale  of  real  estate  on  debt  due  from  devisee. 

Cited  in  Barnett  v.  Thomas,  36  Ind.  App.  447,  114  Am.  St.  Rep.  385,  75  N.  E. 
868,  holding  debt  of  one  of  heirs  to  deceased  owner  of  land  is  to  be  considered  in 
partition  by  sale  and  distribution  of  proceeds. 

Cited  in  footnotes  to  Re  Baily,  22  L.  R,  A.  444,  which  holds  legacy  to  cosurety 
subject  to  deduction  for  proportionate  share  of  amount  paid  by  testator;  Ains- 
worth  v.  Bank  of  California,  39  L.  R.  A.  686,  which  authorizes  setting  off  against 
<;laim  due  estate  debt  due  from  deceased  though  immature  at  time  of  death; 
Oosnell  v.  Flack,  18  L.  R.  A.  158,  which  authorizes  set-off  against  distributive 
share  of  debt  due  from  insolvent;  Webb  v.  Fuller,  22  L.  R.  A.  177,  which  author- 
izes set-off  of  amount  due  by  legatee  against  distributive  share. 

Distinguished  in  Weaver  v.  Gray,  37  Ind.  App.  42,  76  N.  E.  795,  holding  that 
administrator  may  not  set-off  funeral  expenses  against  exempt  property  of  hus- 
band of  deceased  in  his  hands;  Marvin  v.  Bowrby,  142  Mich.  249,  4  L.R.A.  (X.S.) 
193,  113  Am.  St.  Rep.  574,  105  N.  W.  751,  7  A.  &  E.  Ann.  Cas.  559,  holding  that 
an  heir's  distributive  share  of  the  real  estate  or  proceeds  in  hands  of  adminis- 
trator is  not  chargeable  with  an  indebtedness  of  such  heir  to  the  estate. 
Set-off  of  heir's  indebtedness  against  mortgagee. 

Approved  in  Moore  v.  Moore,  155  Ind.  264,  57  X.  E.  242,  holding  vendee  under 


7  L.R.A.  235]  L.  R.  A.  CASES  AS  AUTHORITIES.  1276 

agreement  of  sale  with  administrator  and  heirs,  without  lien  for  value  of  im- 
provements on  proceeds  of  sale  of  real  estate  to  pay  debts;  Green  v.  Brown,  146 
Ind.  10,  44  N.  E.  805,  holding  decree  in  partition  pending  settlement  of  decedent's 
estate,  does  not  preclude  administrator  from  asserting  estate's  liens  against  realty 
partitioned;  Oxsheer  v.  Nave,  90  Tex.  572,  37  L.  R.  A.  101,  footnote  p.  98,  40  S- 
W.  7,  which  sustains  right  to  set  off  indebtedness  of  distributee  against  distribu- 
tive share  although  purchased  by  creditor. 
Real  estate  is  subject  to  decedent's  debts. 

Approved  in  Moore  v.  Moore,  155  Ind.  263,  57  N.  E.  242,  holding  decedent's  real 
and  personal  estate  equally  chargeable  with  payment  of  debts  although  personal 
estate  must  be  first  exhausted;  Rowland  v.  Swope,  39  111.  App.  517,  holding  that 
real  estate  cannot  be  here  sold  for  payment  of  debts  of  decedent  where  personalty 
is  sufficient  if  not  wasted. 

Cited  in  note  (21  L.  R.  A.  323)  as  to  set-off  on  mortgage  foreclosure. 

7  L.  R.  A.  240,  STATE  ex  rel.  CLARK  v.  HAWORTH,  122  Ind.  462,  23  N.  E.  946. 

Followed  without  discussion  in  Knox  County  v.  Johnson,  124  Ind.  148,  7  L.  R. 
A.  685,  19  Am.  St.  Rep.  88,  24  N.  E.  148;  State  ex  rel.  Snoke  v.  Blue,  122  Ind. 
600,  23  N.  E.  963;  State  ex  rel.  Spears  v.  Taylor,  122  Ind.  600,  23  N.  E.  963. 
Judicial  control  of  legislative  discretion. 

Approved  in  Forsyth  v.  Hammond,  18  C.  C.  A.  179,  34  U.  S.  App.  552,  71  Fed. 
446,  holding  that  courts  cannot  exercise  legislative  power  to  establish  municipal 
corporations;  Jamieson  v.  Indiana  Natural  Gas  &  Oil  Co.  128  Ind.  562,  12  L.  R. 
A.  654,  3  Inters.  Com.  Rep.  615,  28  N.  E.  76,  holding  regulation  of  pressure  of 
natural  gas  transported  in  pipes,  within  police  power  of  legislature  exercisable 
in  discretion  if  without  oppression ;  State  ex  rel.  Terre  Haute  v.  Kolsem,  130 
Ind.  442,  14  L.  R,  A.  570,  29  N.  E.  595,  upholding  right  of  legislature  to  deter- 
mine whether  or  not  a  general  law  is  applicable  to  subject  on  which  special  laws 
are  not  prohibited;  Blue  v.  Beach,  155  Ind.  133,  50  L.  R.  A.  70,  80  Am.  St.  Rep. 
195,  56  N.  E.  89,  holding  power  in  administrative  boards  to  adopt  reasonable  rules 
and  regulations,  not  improper  delegation  of  authority:  Morris  v.  Powell,  125 
Ind.  302,  9  L.  R,  A.  335,  25  N.  E.  221  (dissenting  opinion),  majority  holding  law 
imposing  extra  burdens  and  hardships  upon  voters  absent  from  state  or  chang- 
ing residence,  invalid;  Carr  v.  State,  127  Ind.  209,  11  L.  R.  A.  372,  22  Am.  St. 
Rep.  624,  26  N.  E.  778,  holding  right  to  compel  auditing  and  payment  of  claim 
against  state,  dependent  upon  existence  of  appropriation  therefor. 

Cited  in  note   (13  L.  R.  A.  169)   as  to  appropriation  of  state  revenues. 
Effect  of  exercise  of  legislative  power. 

Approved  in  State  ex  rel.  Harrison  v.  Menaugh,  151  Ind.  270,  43  L.  R.  A.  412,  51 
N.  E.  117,  holding  reasonable  change  in  time  of  holding  township  elections  from 
that  fixed  by  previous  statute,  legitimate  exercise  of  legislative  power. 
Public-school   system. 

Approved  in  Campana  v.  Calderhead,  17  Mont.  551,  36  L.  R.  A.  281,  44  Pac. 
83,  holding  legislature  not  required  to  adopt  uniform  text-books,  by  constitutional 
requirement  of  general,  uniform,  and  thorough  system  of  public  free  common 
schools;  State  ex  rel.  Warren  v.  Ogan,  159  Ind.  123,  63  X.  E.  227,  holding  office 
of  school  trustees  not  vacated  by  incorporation  of  town  as  city. 

Cited  in  Allyn  v.  Louisville  School  Bond,  131  Ky.  329,  ]9  L.R.A.(N.S-)  1005, 
115  S.  W.  206,  holding  a  statute  providing  conditions  for  change  of  books  used 
in  schools  is  for  protection  of  the  people  using  the  books  and  a  failure  to  comply 
therewith  gives  no  right  of  action  to  a  book  company. 


1277  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  257 

Synopsised  in  Leeper  v.  State,  103  Tenn.  533,  48  L.  R.  A.  174,  53  S.  W.  962, 
upholding  validity  of  statute  prescribing  uniform  text-books. 

Cited  in  note  (36  L.  R.  A.  277)  as  to  adoption  of  text-books  for  public  schools. 
Imposition  of  duties  upon  public  officers. 

Approved  in  Chambers  v.  State,  127  Ind.  367,  11  L.  R.  A.  614,  26  N.  E.  893, 
holding  office  of  school  trustee  of  incorporated  town  within  constitutional  prohi- 
bition against  holding  two  lucrative  offices. 

Cited  in  State  ex  rel.  Workman  v.  Goldthait,  172  Ind.  223,  87  N.  E.  133,  hold- 
ing under  statute  providing  for  assessment  of  omitted  property  that  county  as- 
sessor must  list  and  assess  such  property  for  years  other  than  the  current  year. 
9Ionopolies. 

Approved  in  Patterson  v.  Wollmann,  5  N.  D.  619,  33  L.  R.  A.  540,  67  N.  W. 
1040,  holding  that  granting  of  exclusive  ferry  franchises  not  within  constitutional 
prohibition  of  monopoly  although  monopoly  results  incidentally;  Rand,  M.  &  Co. 
v.  Hartranft,  29  Wash.  598,  70  Pac.  77,  upholding  validity  of  contract  between 
school  board  and  publishers  for  certain  text-books  for  five  years. 

Cited  in  Dickinson  v.  Cunningham,  140  Ala.  542,  37  So.  345,  holding  a  uniform 
text  book  law  securing  the  supplying  of  such  books  to  successful  bidder  does  not 
•create  a  monopoly. 

Cited  in  note  (9  L.  R.  A.  38)   as  to  monopolies. 
Construction   of   statutes. 

Approved  in  People's  Nat.  Bank  v.  Ayer,  24  Ind.  App.  219,  56  N.  E.  267,  hold- 
ing act  providing  that  sewer  assessments  "may"  be  made  to  run  twenty  years  and 
that  bonds  to  anticipate  same  "may  also"  be  issued  payable  during  like  period, 
not  mandatory;  State  ex  rel.  Stephens  v.  Moore,  96  Mo.  App.  434,  70  S.  W.  512, 
construing  marriage-license  act  to  require  recording  of  licenses,  although  record- 
ing not  specified  in  direct  words. 

7  L.  R.  A.  257,  WHITE  v.  CHICAGO,  ST.  L.  &  P.  R.  CO.  122  Ind.  317,  23  N.  E. 

782. 
Easement   in   streets. 

Approved  in  Chicago  &  I.  C.  R.  Co.  v.  Hunter,  128  Ind.  220,  27  N.  E.  477,  and 
Porter  v.  Midland  R.  Co.  125  Ind.  479,  25  N.  E.  556,  both  holding  all  injuries  re- 
sulting from  appropriation  of  land  for  right  of  way  should  be  included  in  one 
assessment;  Burkam  v.  Ohio  &  M.  R.  Co.  122  Ind.  346,  23  N.  E.  799,  holding  that 
abutting  owner  not  damaged  by  construction  of  railroad  in  street,  has  no  action 
therefor;  New  Castle  v.  Lake  Erie  &  W.  R.  Co.  155  Ind.  25,  57  N.  E.  516,  holding 
that  municipalities  may  authorize  reasonable  use  of  highway  for  steam  railroad 
laid  longitudinally ;  Noblesville  v.  Lake  Erie  &  W.  R,  Co.  130  Ind.  5,  29  N.  E.  484, 
holding  right  to  lay  tracks  in  street  not  lost  although  second  track  not  laid  until 
more  than  twenty  years  after  grant;  Haus  v.  Jeffersonville,  M.  &  I.  R.  Co.  138 
Ind.  311,  37  N.  E.  805,  holding  all  damages  from  appropriation  or  use  of  alley 
for  railway,  within  release  of  all  claims  and  demands  past  or  present  for  damages 
by  granting  of  right  of  way;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Huddleston,  21 
Ind.  App.  627,  69  Am.  St.  Rep.  385,  52  N.  E.  1008,  holding  that  compensation 
for  all  injuries  from  construction  and  operation  of  railroad  includes  ne< 
changes  in  roadbed  and  culverts;  Hileman  v.  Chicago  G.  W.  R.  Co.  113  Iowa.  594, 
85  N.  W.  800,  holding  abutter's  grant  of  right  to  construct  and  maintain  railroad 
in  highway  covers  any  legitimate  increase  in  use  therefor,  including  sidetrack : 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Eisert,  127  Ind.  162,  26  N.  E.  759,  holding  au- 
thorization to  construct  railway  in  street,  so  that  "line  of  the  railroad"  not  near 
curb,  includes  one  or  more  tracks;  Rehman  v.  New  Albany  Belt  &  Terminal  R. 


7  L.R.A.  257]  L.  R.  A.  CASES  AS  AUTHORITIES.  1278 

Co.  8  Ind.  App.  213.  35  N.  E.  292,  holding  present  and  prospective  damages  pre- 
sumed assessed  in  proceeding  under  writ  of  assessment. 

Cited  in  notes  (17  L.R.A.  475,  481)  as  to  what  use  of  a  street  or  highway 
constitutes  an  additional  burden;  (36  L.R.A. (N.S.)  705)  on  abutter's  right  to 
compensation  for  railroads  in  streets. 

Distinguished  in  Grand  Trunk  Western  R.  Co.  v.   South  Bend,  174  Ind.  225, 
36  L.R.A.(N.S.)    850,  80  N.  E.  885,  holding  that  allegation  that  two  tracks  will 
cause  less  obstruction  of  street  than  one  track  cannot  be  regarded  as  an  allegation 
of  a  fact. 
AVhat    damages  are  included   In   assessment    for  condemnation. 

Cited  in  Baltimore  &  O.  S.  W.  R.  Co.  v.  Quillen,  34  Ind.  App.  335,  107  Am.  St. 
Rep.  183,  72  N.  E.  661,  holding  damage  caused  by  collection  of  water  on  plain- 
tiff's land  caused  by  right  of  way,  not  included  in  the  assessment  to  obtain  the 
grant;  Union  Traction  Co.  v.  Pfeil,  39  Ind.  App.  58,  78  N.  E.  1052,  holding  that 
damages  resulting  from  construction  of  additional  tracks  not  provided  for  in  the 
original  assessment  cannot  be  had  by  subsequent  proceedings;  Cleveland,  C.  C.  &. 
St.  L.  R.  Co.  v.  Doan,  47  Ind.  App.  329,  94  N.  E.  598,  holding  that  damages  given 
in  condemnation  proceedings  by  railroad  includes  damages  caused  by  subsequently 
elevating  tracks;  Ferdinand  R.  Co.  v.  Bretz,  47  Ind.  App.  645,  94  N.  E.  1046r 
holding  that  all  damages,  present  and  prospective  for  railroad  right  of  way 
should  be  assessed  in  condemnation  proceedings;  Mordhurst  v.  Ft.  Wayne  &  S. 
W.  Traction  Co.  163  Ind.  281,  66  L.R.A.  116,  106  Am.  St.  Rep.  222,  71  N.  E.  642,  2 
A.  &  E.  Ann.  Cas.  967,  holding  street  railway  company  liable  to  abutting  lot  owner 
for  any  special  damages  caused  by  negligence  in  construction  or  operation  of  the 
road;  New  Jersey  I.  &  I.  R.  Co.  v.  Tutt,  168  Ind.  210,  80  N.  E.  420,  holding  dam- 
age from  obstruction  of  drain  by  construction  of  railway  grade  to  be  included  in 
award  under  condemnation  proceedings;  Indianapolis  &  W.  R.  Co.  v.  Branson, 
172  Ind.  388,  86  N.  E.  834,  holding  the  danger  to  which  abutting  land  owner  and 
his  family  will  be  subjected  in  crossing  track,  not  included  in  award  under  con- 
demnation proceedings. 

Cited  in  note    (22   Am.  St.  Rep.  51)    on  recovery  of  present  and  prospective 
damages  in  eminent  domain  proceedings. 
Reversal   for  erroneous  conclusion   of  law. 

Approved  in  Smiley  v.  Barker,  28  C.  C.  A.  13,  55  U.  S.  App.  125,  83  Fed.  687, 
holding  that  a  just  judgment,  warranted  by  record  and  facts,  will  not  be  over- 
thrown because  based  on  wrong  reason;  Nelson  v.  Cottingham,  152  Ind.  138,  52; 
N.  E.  702,  holding  that  motion  for  judgment  upon  general  finding  will  furnish 
grounds  for  reversal. 
Street  as  a  "higbtvay." 

Approved  in  Indianapolis  v.  Higgins.  141  Ind.  11,  40  N.  E.  671,  holding  "high- 
way" in  criminal  statute  includes  sidewalk. 

7  L.  R.  A.  262,  LAFLIN  &  P.  POWDER  CO.  v.  TEARNEY,  131  111.  322,  19  Am. 

St.  Rep.  34,  23  N.  E.  389. 
Sufficiency  of   declaration. 

Cited  in  Chicago,  W.  &  V.  Coal  Co.  v.  Glass,  34  111.  App.  370,  holding  plea  of 
general  issue  after  demurrer  waiver  of  right  to  question  sufficiency  of  declaration. 
—  Negligence  and  nuisance. 

Cited  in  Fisher  v.  Western  Fuse  &  Explosives  Co.  12  Cal.  App.  747,  108  Pac. 
659,  holding  cause  of  action  sufficiently  appears  by  averments  showing  mainte- 
nance of  a  nuisance  though  insufficiently  pleaded  as  negligence;  Uggla  v.  Brokaw, 
117  App.  Div.  591,  102  N.  Y.  Supp.  857,  holding  allegation  of  facta  constituting 


3279  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  262 

nuisance  sufficient  to  set  up  can™  of  action  though  nuisance  not  expressly  al- 
leged. 
Instruction   referring   to   pleadings. 

Approved  in  Chicago  &  A.  R.  Co.  v.  Johnson,  128  111.  App.  25;  Illinois  Terra 
Cotta  Lumber  Co.  v.  Hanley,  116  111.  App.  263, — upholding  instruction  referring 
to  declaration. 

Cited  in  Chicago,  R.  I.  &  P.  R.  Co.  v.  Cleveland,  92  111.  App.  318,  holding  that 
an  instruction  to  find  for  plaintiff  if  he  had  made  out  his  case  as  laid  down  in 
his  declaration,  erroneous;  Chicago  &  A.  R.  Co.  v.  Harrington,  192  111.  26,  61 
N.  E.  622,  holding  instructions  based  on  theory  in  plaintiff's  declaration  not 
erroneous  if  summarizing  all  essential  facts;  Suburban  R.  Co.  v.  Balkwill,  195 
111.  539,  63  N.  E.  389,  and  Central  R.  Co.  v.  Bannister,  195  111.  50,  62  N.  E.  864, 
upholding  instructions  for  recovery  if  facts  are  found  as  laid  in  declaration; 
United  States  Brewing  Co.  v.  Stoltenberg,  211  111.  534,  71  X.  E.  1081,  holding  an 
instruction  to  find  for  the  plaintiff  if  from  evidence  "as  alleged  in  the  declara- 
tion" he  has  made  out  his  case  not  erroneous  for  the  words  quoted. 

Distinguished  in  Krieger  v.  Aurora,  E.  &  C.  R.  Co.  242  111.  549,  90  N.  E.  266, 
holding  that  where  declaration  does  not  include  all  the  issues  an  instruction  to 
find  for  plaintiff  if  he  has  made  out  his  case  as  laid  down  in  declaration  is  erro- 
neous. 
Xniaance. 

Cited  in  Chicago  v.  Gunning  System,  214  111.  636,  70  L.R.A.  236,  73  X.  E.  1035, 
2  A.  &  E.  Ann.  Gas.  892,  on  what  constitutes  a  nuisance;  Lazarus  v.  Parmly,  113 
111.  App.  626,  defining  a  private  nuisance  to  be  any  unreasonable  or  unlawful  use 
by  a  person  of  his  own  property,  real  or  personal  to  the  injury  of  another; 
Wheeler  v.  Pullman  Palace  Car  Co.  131  111.  App.  265,  holding  a  raised  store 
platform  with  steps  in  front  of  doors  leading  thereon  only  was  not  a  nuisance; 
Nelson  v.  Swedish  Evangelical  Lutheran  Cemetery  Asso.  Ill  Minn.  152,  126  X.  W. 
723,  20  Ann.  Cas.  790,  holding  that  cemetery  so  situated  as  to  injure  life  or 
health  either  by  contaminating  surrounding  atmosphere  or  water  of  wells  is 
nuisance. 

Cited  in  notes  (107  Am.  St.  Rep.  244)  on  what  are  public  nuisances;   (16  L.R.A. 
(N.S.)   693)   on  storage  of  explosives  as  nuisance. 
Liability  for  nuisances;   negligence  as  factor. 

Cited  in  John  Morris  Co.  v.  Burgess,  44  111.  App.  40,  holding  boiler  owner  only 
required  to  use  ordinary  care  with  reference  to  its  safety,  and  competency  of  serv- 
ants managing  it;  Belvidere  Gaslight  &  Fuel  Co.  v.  Jackson,  81  111.  App.  429. 
holding  reasonable  care  in  erection  of  gas  plant  not  of  itself  sufficient  to  relieve 
proprietor  of  responsibility  for  injury  therefrom;  Rudder  v.  Koopman,  116  Ala. 
354,  37  L.  R.  A.  499,  22  So.  601,  holding  storage  of  gunpowder  and  dynamite  in 
wooden  building,  in  thickly  settled  part  of  town,  a  nuisance;  Frost  v.  Berkeley 
Phosphate  Co.  42  S.  C.  413,  26  L.  R.  A.  698,  46  Am.  St.  Rep.  736,  20  S.  E.  280, 
holding  defendant  liable  for, damages  caused  by  generation  of  deleterious  gases 
from  phosphate  factory;  McDonough  v.  Roat,  8  Kulp,  446,  holding  storing  and 
Imndlinw  dynamite,  a  nuisance  or  not,  according  to  locality  and  surroundings : 
Wilson  v.  Phoenix  Powder  Mfg.  Co.  40  W.  Va.  417,  52  Am.  St.  Rep.  890,  21  S.  E. 
1035.  holding  no  care  can  prevent  powder  mill  situated  where  it  may  endanger 
lives  from  being  a  public  nuisance;  Hazard  Powder  Co.  v.  Volger,  7  C.  C.  A.  134. 
12  U.  S.  App.  665,  58  Fed.  156,  holding  explosion  of  powder  magazine  located 
in  violation  of  city  ordinance,  renders  owners  liable  for  resulting  injuries:  Weston 
Paper  Co.  v.  Pope,  155  Ind.  402,  56  L.  R.  A.  902.  57  X.  E.  719,  holding  injurious 
pollution  of  stream,  not  excused  by  magnitude  of  investment  or  freedom  from 


7  L.R.A.  262]  L.  R.  A.  CASES  AS  AUTHORITIES  1280 

malice;  Milligan  v.  Nelson,  51  111.  App.  446 (dissenting  opinion),  majority  holding 
injunction  restraining  defendant  from  permitting  dense  smoke  to  be  emitted  from 
his  chimneys  should  not  be  granted;  Mathews  v.  St.  Louis  &  S.  F.  R.  Co.  121  Mo. 
328,  25  L.  R.  A.  172,  24  S.  W.  591,  upholding  law  making  railroads  absolutely 
liable  for  damages  caused  by  fires  from  locomotives;  Lowe  v.  Prospect  Hill  Cem- 
etery Asso.  58  Neb.  106,  46  L.  R.  A.  241,  78  N.  W.  488,  holding  burial  of  the  dead 
so  as  to  endanger  life  or  health  will  be  enjoined;  Kleebauer  v.  Western  Fuse  & 
Explosives  Co.  (Cal.)  60  L.  R,  A.  379.  69  Pac.  246,  holding  manufacturer  storing 
gunpowder  with  due  care,  not  liable  for  wilful  explosion  of  same  by  employee: 
Payne  v.  Wayland,  131  Iowa,  661,  109  N.  W.  203,  holding  that  equity  will  restrain 
the  use  of  land  as  a  cemetery  constituting  a  nuisance;  Bowman  v.  Humphrey,  132 
Iowa,  237,  6  L.R.A.(N.S.)  1112,  109  N.  W.  714,  11  A.  &  E.  Ann.  Cas.  131,  hold- 
ing that  while  deposits  from  a  creamery  in  a  stream  constitute  a  nuisance,  an 
action  will  lie  without  regard  to  care  used  by  creamery  operators;  Missouri.  K.  & 
T.  R.  Co.  v.  Anderson,  36  Tex.  Civ.  App.  132,  81  S.  W.  781,  holding  that  where  per- 
son is  maintaining  a  lawful  business  free  from  negligence,  it  is  no  justification 
if  such  business  is  a  nuisance  and  could  be  properly  carried  on  somewhere  else: 
Perrin  v.  Crescent  City  Stockyard  &  Slaughter-house  Co.  119  La.  99,  43  So. 
938,  12  A.  &  E.  Ann.  Cas.  903,  holding  fertilizer  and  tallow  rendering  plant  a 
nuisance  to  persons  living  in  vicinity  the  odors  from  which  are  a  source  of  great 
discomfort  to  such  persons;  Flynn  v.  Butler,  189  Mass.  386,  75  N.  E.  730,  hold- 
ing that  a  gun  powder  magazine  when  maintained  in  a  dangerous  state  in  a  pop- 
ulous district  is  a  nuisance;  Henderson  v.  Sullivan,  16  L.R.A. (N.S.)  697,  86  C. 
€.  A.  236,  159  Fed.  49,  14  A.  &  E.  Ann.  Cas.  590,  holding  the  storage  of  tons  of 
gunpowder  on  an  island  in  a  river  which  was  liable  to  and  did  explode  was  a 
nuisance. 

Cited  in  footnotes  to  Bly  v.  Edison  Electric  Illuminating  Co.  58  L.R.A.  500, 
which  sustains  right  of  tenant  to  maintain  action  to  abate  nuisance  created  by 
third  person's  method  of  conducting  business  before  lease  renewed;  Storms  v. 
Manhattan  R.  Co.  66  L.R.A.  625,  which  holds  lessee's  right  to  damages  for  in- 
juries to  building  by  interference  with  light,  air,  and  access  by  construction  of 
elevated  railway  in  abutting  street  not  cut  off  by  renewal  of  lease  in  accordance 
•with  its  terms. 

Cited  in  notes  (9  L.  R.  A.  715)  on  municipal  authority  to  abate  nuisance; 
(29  L.  R.  A.  718)  on  negligence  in  manufacture  and  storage  of  gunpowder,  nitro- 
glycerine, dynamite,  and  other  explosives;  (38  L.  R.  A.  309)  on  municipal  power 
over  nuisances  affecting  safety,  health,  and  personal  comfort;  (23  Am.  St.  Rep. 
174)  on  defenses  to  action  for  nuisance;  (42  Am.  St.  Rep.  541)  on  liability  of  rail- 
road for  damages  from  fire  from  locomotive;  (118  Am.  St.  Rep.  869)  on  actions 
against  two  or  more  persons  creating  or  maintaining  a  nuisance. 
Proximate  cause  of  injury. 

Cited  in  notes   (8  L.R.A.  83)   on  loss  of  injury  or  attributing  loss  or  injury  to 
proximate  cause;   (36  Am.  St.  Rep.  817,  820)  on  proximate  and  remote  cause. 
^Negligence  In  keeping  explosives. 

Cited  in  Smith  v.  Mine  &  S.  Supply  Co.  32  Utah,  26,  88  Pac.  683,  holding  evi- 
dence of  character  of  explosives  admissible  to  show  degree  of  care  required  in 
the  keeping  thereof. 

Cited  in  note    (67  Am.  St.  Rep.  134,  137)    on  liability  for  keeping  explosives. 

Distinguished  in  Kinney  v.  Koopman,  116  Ala.  321,  37  L.  R.  A.  504.  67  Am.  St. 
Rep.  119,  22  So.  593,  holding  large  storage  of  gunpowder  and  other  explosives,  in 
thickly  settled  part  of  town  not  negligence  per  se. 


1281  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  266 

Absence  of  vented  or  prior  rinlit   to  commit  a  nuisance. 

Cited  in  Standard  Oil  Co.  v.  Danville,  199  111.  54,  64  X.  E.  1110,  holding  dan- 
gerous plants  that  become  nuisances  may  be  made  to  move,  although  established 
before  city  was  built  up  around  them;  Oehler  v.  Levy,  234  111.  604,  17  L.R.A. 

\  >. )  1031,  85  N.  E.  271,  14  A.  &  E.  Ann.  Cas.  891,  Affirming  139  111.  App.  303, 
holding  priority  in  location  no  justification  for  maintaining  a  stable  constitut- 
ing a  nuisance  by  odor  and  noise. 

Cited  in  footnote  to  Van  Fossen  v.  Clark,  52  L.  R.  A.  279,  which  holds  pur- 
chaser's knowledge  of  existence  of  nuisance  by  discharge  from  drain  does  not  es- 
top him  from  suing  to  abate  same. 
Assumed   rink. 

Cited  in  Illinois  Terra  Cotta  Lumber  Co.  v.  Hanley,  214,  111.  247,  73  N.  E.  373, 
holding  that  where  the  issue  of  assumed  risk  is  involved,  instructions  eliminating 
that  issue  are  erroneous. 

7  L.  R.  A.  264,  SMITHERS  v.  JUNKER,  41  Fed.  101. 
Obligation    to   pay   on    uncertain   condition. 

C 'ited  in  Getto  v.  Binkert,  55  Kan.  620,  40  Pac.  925,  holding  note  payable  after 
*ale  of  certain  lots,  due  after  lapse  of  reasonable  time;  Hood  v.  Hampton  Plains 
Exploration  Co.  106  Fed.  412,  holding  wages  payable  when  employer  should  re- 
sume operation  of  mine  due  after  lapse  of  four  years;  Johnston  v.  Schenck,  15 
Utah.  494,  50  Pac.  921,  construing  instrument  reciting  receipt  of  money  payable 
on  demand  on  sale  of  mine  in  year  but  not  payable  in  case  of  no  sale,  payable  at 
expiration  of  year  no  sale  having  been  made;  Benton  v.  Benton,  78  Kan.  370,  27 
L.R.A.  (X.S.)  305,  130  Am.  St.  Rep.  376,  97  Pac.  378,  holding  that  a  written 
acknowledgment  of  indebtedness  where  maker  agrees  to  pay  as  soon  as  he  can 
is  a  promissory  note  due  in  a  reasonable  time. 

Cited  in  footnotes  to  Page  v.  Cook,  28  L.  R.  A.  759,  which  holds  note  on  demand 
with  provision  for  payment  when  parties  mutually  agree,  due  within  reasonable 
time;  Pistel  v.  Imperial  Mut.  L.  Ins.  Co.  43  L.  R.  A.  219,  which  holds  promise  to 
pay  when  debtor  feels  able,  creates  moral  obligation  to  pay  when  debtor  is  able. 

Distinguished  in  Pistel  v.  Imperial  Mut.  L.  Ins.  Co.  88  Md.  558,  43  L.  R.  A. 
221.  42  Atl.  210.  holding  complaint  on  promise  to  pay  when  "feel  able"  demurra- 
lile.  where  no  allegation  that  debtor  felt  able,  though  ability  alleged. 

7  L.  R.  A.  265,  LORENZ'S  SUCCESSION,  41  La.  Ann.  1091,  6  So.  886. 
Effect  of  ex  parte  proceedings  as  to  heirs. 

Cited  in  Barber's  Succession,  52  La.  Ann.  963,  27  So.  363,  holding  ex  parte 
order  of  recognition  of  heir  a  nullity. 

7  L.  R.  A.  266,  BALDWIN  v.  LOUISVILLE  &  N.  R,  CO.  85  Ala.  619..  5  So.  311. 
Extent   of  legislative   regulations. 

Cited  in  Youngblood  v.  Birmingham  Trust  &  Sav.  Co.  95  Ala.  526,  20  L.  R.  A. 
61,  36  Am.  St.  Rep.  245,  12  So.  579,  upholding  constitutionality  of  statute  making 
discount  of  commercial  paper  at  more  than  certain  rate  per  cent  misdemeanor; 
Brooks  v.  State,  88  Ala.  124,  6  So.  902,  holding  statute  appointing  board  of  ex- 
aminers to  determine  qualifications  of  applicants  for  licenses  to  practise  medi- 
cine, constitutional;  Birmingham  Mineral  R.  Co.  v.  Parsons,  100  Ala.  665,  27  L. 
R.  A.  264,  46  Am.  St.  Rep.  92,  13  So.  602,  holding  act  requiring  railroads  to  place 
cattle-guards,  on  demand  of  adjoining  owners,  constitutional;  Wolf  v.  Smith.  149 
Ala.  463,  9  L.R.A.  (N.S.)  346,  42  So.  824,  holding  a  legislative  regulation  requir- 
ing mine  operators  to  keep  hospital  supplies  for  care  of  injured  miners  without 
L.R.A.  Au.  Vol.  L— 81. 


7  L.R.A.  266]  L.  R.  A.  CASES  AS  AUTHORITIES.  1282 

compensation  therefor  is  invalid;  Seaboard  Air  Line  R.  Co.  v.  Railroad  Com- 
mission, 155  Fed.  799,  holding  statute  void  which  declares  that  the  bringing  of 
suit  in  a  federal  court  by  foreign  corporation  shall  ipso  facto  forfeit  its  right 
to  do  domestic  business  in  the  state. 

Cited  in  note  (4  L.  R.  A.  724)  on  due  process  of  law. 

Distinguished  in  Randolph  v.  Builders  &  Painters  Supply  Co.  106  Ala.  511,  17 
So.  721,  giving  material  men  lien  for  "attorney's  fees"  unconstitutional. 

7  L.  R.  A.  272,  STATE  USE  OF  BASHE  v.  BOYCE,  72  Md.  140,  20  Am.  St.  Rep. 

458,  19  Atl.  366. 
Pendency  of  another  action,   as  abatement. 

Cited  in  notes  (58  L.R.A.  430)  on  effect  of  judgment  against  one  joint  tort 
feasor  upon  liability  of  the  other;  (29  Am.  St.  Rep.  312;  92  Am.  St.  Rep.  883) 
on  pendency  of  suit  against  one  tort  feasor  as  affecting  liability  of  others. 

7  L.  R.  A.  273,  COOK  v.  COOPER,  18  Or.  142,  17  Am.  St.  Rep.  709,  22  Pac.  945. 
Possession  by  mortgragree. 

Cited  in  Jewett  v.  Tomlinson,  137  Ind.  332,  36  X.  E.  1106,  holding  purchaser  at 
sheriff's  judgment  sale  cannot  eject  mortgagee  in  possession  under  senior  mort- 
gage; Spect  v.  Spect,  88  Cal.  443,  13  L.  R.  A.  139,  footnote  p.  137,  22  Am.  St.  Rep. 
314,  26  Pac.  203,  holding  mortgagee  in  possession  by  consent  of  mortgagor  cannot 
be  ejected  by  grantee  of  mortgagor  though  mortgage  debt  barred  by  limitations; 
Walters  v.  Chance,  73  Kan.  685,  85  Pac.  779,  holding  consent  of  owner  not  neces- 
sary to  the  holding  of  a  mortgagee  in  possession  if  entry  be  made  peacefully  and 
such  entry  is  complete  defense  to  ejectment  by  mortgagor  until  lien  of  mortgage 
has  been  paid;  Finlayson  v.  Peterson,  11  N.  D.  54,  89  N.  W.  855,  holding  that 
assignee  of  mortgagee  having  taken  possession  peacefully  and  with  consent  of 
mortgagor,  cannot  be  ejected  until  lien  of  mortgage  has  been  paid,  especially 
where  real  estate  mortgage  is  merely  lien  for  security;  Coles  v.  Meskimen,  48 
Or.  56,  85  Pac.  67,  holding  possession  by  mortgagee  good  defense  to  ejectment 
until  mortgage  debt  is  paid  though  mortgage  does  not  convey  legal  title;  Lam- 
bert v.  Howard,  49  Or.  345,  90  Pac.  150.  holding  mortgagee  in  possession  by  con- 
sent of  mortgagor  or  by  legal  proceedings  after  condition  broken  may  retain 
possession  until  mortgage  debt  is  paid;  Francis  v.  Francis,  78  S.  C.  182.  58  S. 
E.  804,  holding  "grantees,  in  possession,"  or  mortgagee  entitled  to  hold  the  prop- 
erty subject  only  to  the  equitable  right  of  redemption  and  also  citing  note. 

Cited  in  footnotes  to  Whiting  v.  Adams.  25  L.R.A.  598,  which  holds  mort- 
gagee's seizure  of  crops  after  filing  bill  for  foreclosure  a  conversion;  Stouffer  v. 
Harlan,  64  L.R.A.  320,  which  holds  that  mortgagee  in  possession  after  condition 
broken  cannot  be  dispossessed  without  payment  of  mortgage. 

Cited  in  notes  (8  L.  R.  A.  569)   on  rights  of  mortgagee  in  possession;    (7  L.  R. 
A.  631)   on  protection  of  mortgagee;    (7  L.  R.  A.  630)   on  rights  of  mortgagor. 
Void    foreclosure. 

Cited  in  Jordan  v.  Sayre,  29  Fla.  115,  10  So.  823,  holding  warranty  deed  by 
mortgagee  to  third  party,  of  premises  purchased  by  him  on  void  foreclosure,  sub- 
rogates  purchaser  in  equity  to  mortgagee's  rights  in  premises;  Bryan  v.  Pinney, 
3  Ariz.  422,  31  Pac.  548,  holding  that  purchaser  of  certificate  of  sale  under  void 
foreclosure  becomes  assignee  of  mortgage  debt;  Bryan  v.  Brasius,  3  Ariz.  439,  31 
Pac.  519,  holding  that  grantee  of  purchaser  under  void  foreclosure  sale  will  be 
subrogated  to  rights  of  mortgagee;  Kelso  v.  Norton,  65  Kan.  785,  93  Am.  St.  Rep. 
308,  70  Pac.  896,  holding  ejectment  not  maintainable  by  heirs  of  deceased  mort- 
gagor against  purchaser  in  possession  under  void  foreclosure  sale,  debt  being  un- 
paid; Stouffer  v.  Harlan,  68  Kan.  139,  64  L.R.A.  322,  footnote  p.  320,  74  Pac.  610, 


1283  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  280 

holding  ejectment  not  maintainable  against  mortgagee  in  possession  under  in- 
valid foreclosure,  debt  remaining  unpaid;  Coughanour  v.  Hutchinson,  41  Or.  423, 
(>'.)  Pue.  68,  holding  foreclosure  purchaser  entitled  to  retain  possession  as  against 
mortgagor  and  those  claiming  under  him,  until  debt  is  paid;  Investment  Securi- 
ties Co.  v.  Adams,  37  Wash.  216,  79  Pac.  625,  holding  a  mortgagee  being  bona 
fide  purchaser  at  void  foreclosure  sale  having  possession  thereunder  is  without 
regard  to  assent  of  mortgagor,  a  mortgagee  in  possession  entitled  to  incidents 
thereof;  Burns  v.  Hiatt,  149  Cal.  620,  117  Am.  St.  Rep.  157,  87  Pac.  196,  holding 
purchaser  at  a  void  foreclosure  sale  entitled  to  the  lien  of  the  mortgage  as  against 
the  mortgagor  such  lien  not  being  divested  by  the  proceedings;  Currier  v.  Teske, 
82  Xeb.  318,  117  X.  W.  712,  holding  those  claiming  under  mortgagor  may  not 
maintain  ejectment  at  law  against  purchaser  at  void  foreclosure  sale  unless 
they  have  discharged  or  made  tender  of  discharge  of  mortgage  lien;  Nash  v. 
Northwest  Land  Co.  15  X.  D.  570,  108  X.  W.  792,  holding  a  purchase  of  mortgaged 
premises  for  full  amount  of  lien  at  a  void  foreclosure  operates  as  an  equitable  as- 
signment of  the  mortgage:  Haggart  v.  Wilczinski,  74  C.  C.  A.  176,  143  Fed.  26, 
holding  persons  holding  under  purchaser  at  void  foreclosure  sale  are  to  be  re- 
garded as  mortgagees  in  possession. 

Cited  in  note    (40  L.R.A.(N.S.)    840,  844,  846)    on  right  of  one  in  possession 
claiming  under  void  foreclosure. 
Redemption   by   mortuuwor. 

Cited  in  Rigney  v.  De  Graw,  100  Fed.  217,  holding  limitation  does  not  run 
against  mortgagor's  right  to  redeem  from  void  foreclosure  sale  under  which  mort- 
gagee in  possession ;  Hicklin  v.  Marco,  46  Fed.  425,  holding  purchaser  at  void 
foreclosure  sale  entitled  to  value  of  improvements  in  suit  by  mortgagor  to  redeem. 
Merger  or  diBcharg-e  of  mortgage. 

Cited  in  Woodward  v.  McCollum,  16  N.  D.  48,  111  N.  W.  623,  holding  that  in 
case  a  mortgage  held  by  land  owner  is  not  merged  his  grantees  without  men- 
tion or  notice  of  mortgage  in  grant  would  take  his  rights  as  mortgagee  and  suit 
themselves  as  to  merging  it  or  not. 

7  L.  R.  A.  280,  BEARD  v.  ILLINOIS  C.  R.  CO.  79  Iowa,  518,  18  Am.  St.  Rep.  381, 

44  N.  W.  800. 
Carrier Duty   to   provide   suitable   ears. 

Cited  in  Beard  v.  St.  Louis,  A.  &  T.  H.  R.  Co.  79  Iowa,  534,  44  N.  W.  803,  hold- 
ing carrier  impliedly  agrees  to  supply  suitably  cool  cars  for  transportation  of 
butter  in  absence  of  special  contract  to  contrary;  Chicago  &  A.  R.  Co.  v.  Davis, 
54  III.  App.  134,  holding  carrier  liable  to  consignee  for  spoiling  of  hams  through 
defect  in  refrigerator  car,  although  consignor's  duty  to  discover  same;  Shea  v. 
Chicago,  R.  I.  &  P.  R.  Co.  66  Minn.  107,  68  N.  W.  608,  holding  carrier  receiving 
lemons  in  common  box  car  without  ice,  from  initial  carrier  liable  for  injury  by 
heat;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Renfroe,  82  Ark.  148,  10  L.R.A. (N.S.)  322, 
118  Am.  St.  Rep.  58,  100  S.  W.  889,  holding  carrier  having  accepted  through 
transportation  of  strawberries  it  was  its  duty  to  provide  customary  cars  used 
for  that  purpose:  C.  C.  Taft  Co.  v.  American  Exp.  Co.  133  Iowa,  525.  10  L.R.A. 
(N.S.)  615,  119  Am.  St.  Rep.  642,  110  X.  W.  897,  holding  carrier  liable  for  dam- 
age to  berries  in  transit  caused  by  negligently  supplying  ice  in  refrigerator  car; 
Colsch  v.  Chicago,  M.  &  St.  P.  R.  Co.  149  Iowa,  181,  34  L.R.A.(N.S.)  1016, 
127  N.  W.  198,  Ann.  Cas.  1912  C,  915,  holding  that  carrier  of  livestock  is  only 
bound  to  use  ordinary  and  reasonable  care  to  avoid  injury  to  stock  by  freezing, 
where  shipper  accompanies  shipment  in  transit:  Philadelphia,  B.  &  W.  R.  Co.  v. 
Diffendal.  109  Md.  507,  72  Atl.  193,  holding  connecting  carrier  must  exercise  due 
care  in  protection  of  fruit  in  a  refrigerator  car,  and  in  making  delivery  within 


7  L.R.A.  280]  L.  R.  A.  CASES  AS  AUTHORITIES.  1284 

reasonable  time;  Brennisen  v.  Pennsylvania  R.  Co.  100  Minn.  105,  110  X.  W.  362, 
10  A.  &  E.  Ann.  Cas.  169,  holding  carrier  liable  for  failure  to  properly  ice  cars 
on  a  through  shipment  of  perishable  fruit  in  winter  season ;  Baker  v.  Boston  &  M. 
R.  Co.  74  N.  H.  109,  124  Am.  St.  Rep.  937,  65  Atl.  386,  12  A.  &  E.  Ann.  Cas.  1072. 
holding  it  to  be  duty  of  carrier  of  milk  to  provide  iced  cars  since  they  are  neces- 
sary for  proper  carriage  of  such  goods  and  also  to  care  for  goods  during  ship- 
ment; State  ex  rel.  Washington  Mill.  Co.  v.  Great  Northern  R.  Co.  43  Wash.  660, 
6  L.R.A.(N.S.)  910,  117  Am.  St.  Rep.  1084,  86  Pac.  1056,  on  duty  of  carrier  to 
provide  proper  facilities  for  shipment  of  goods  offered. 

Cited  in  footnotes  to  Mathis  v.  Southern  R.  Co.  61  L.  R.  A.  824,  which  holds 
carrier  liable  for  refusal  to  receive  for  transportation  fruit,  not  in  properly  iced 
refrigerator  car;  New  York,  P.  &  N.  R.  Co.  v.  Cromwell,  49  L.  R.  A.  462,  which 
holds  carrier  leasing  cars  from  other  company  liable  for  loss  of  freight  not  prop- 
erly refrigerated. 

Cited  in  notes  (10  L.R.A.  417)  on  measure  of  care  required  of  carrier;  (10 
L.R.A.  419)  on  limitation  of  carrier's  liability  by  contract;  (10  L.R.A. (N.S.)  318, 
320)  on  duty  of  carrier  as  to  refrigerator  cars;  (90  Am.  St.  Rep.  300,  301,  302) 
on  cold  storage  of  perishable  freight;  (130  Am.  St.  Rep.  47)  on  liability  of  rail- 
road company  for  injuries  or  losses  due  to  operation  of  cars  not  owned  by  it. 
Presumption  as  to  loss  or  injury. 

Cited  in  Moore  v.  New  York,  N.  H.  &  H.  R.  Co.  173  Mass.  337,  73  Am.  St.  Rep. 
298,  53  N.  E.  816,  holding  injury  to  baggage  checked  "through"  presumed  to  have 
occurred  with  last  connecting  carrier;  Myerson  v.  Woolverton,  9  Misc.  188,  29  N. 
Y.  Supp.  737,  holding  transfer  company  to  whose  agent  baggage  check  was  deliv- 
ered on  train,  presumptively  negligent  where  baggage  checked  in  good  condition 
was  injured  when  delivered;  Lamb  v.  Chicago,  M.  &  St.  P.  R.  Co.  101  Wis  144,  76 
N.  W.  1123,  holding  loss  occurred  presumptively  with  connecting  carrier  where 
berries  were  in  good  condition  at  time  of  shipment  in  iced  car;  Stone  v.  Chicago. 
R.  I.  &  P.  R.  Co.  149  Iowa,  242,  128  N.  W.  354,  holding  that  presumption  of  good 
condition  of  livestock  will  continue  until  overcome  by  competent  evidence,  where 
good  condition  is  shown  to  exist  at  time  of  delivery  for  transportation;  Trakas 
v.  Charleston  &  W.  C.  R.  Co.  87  S.  C.  208,  69  S.  E.  209,  to  the  point  that  carrier 
has  burden  of  showing  that  perishable  goods  were  not  in  good  condition  when 
received  from  connecting  carrier;  St.  Louis  Southwestern  R.  Co.  v.  A.  A.  Jackson 
&  Co.  55  Tex.  Civ.  App.  412,  118  S.  W.  853,  holding  that  where  goods  are  shipped 
in  good  condition  and  are  delivered  by  connecting  carrier  in  damaged  condition, 
presumption  is  that  damage  resulted  from  his  negligence. 

Cited  in  notes   (22  Am.  St.  Rep.  58)  on  presumption  as  to  where  loss  occurred 
in  case  of  connecting  carriers;    (101  Am.  St.  Rep.  397)  on  burden  of  proof  as  be- 
tween connecting  carriers. 
Custom   as  affecting-  negligence. 

Cited  in  Martin  v.  Chicago,  R.  I.  &  P.  R.  Co.  118  Iowa,  150,  59  L.  R.  A.  700,  96 
Am.  St.  Rep.  380,  91  N.  W.  1034,  holding  custom  for  express  trains  to  exceed 
speed  prescribed  by  ordinance  does  not  affect  question  of  negligence. 

Cited  in  footnote  to  Pennsylvania  R.  Co.  v.  Naive,  64  L.R.A.  443,  which  holds 
carrier  not  negligent  in  failing  to  notify  consignee  of  arrival  of  perishable  goods 
on  legal  holiday  on  which  by  general  custom  of  locality  all  business  is  suspended. 
Through  contracts. 

Cited  in  Peterson  v.  Chicago,  R.  I.  &  P.  R.  Co.  80  Iowa,  100,  45  N.  W.  573,  hold- 
ing connecting  carriers  jointly  liable  for  loss  of  baggage  on  contract  exempting 
only  initial  carrier  for  loss  beyond  its  own  terminals;  Taffe  v.  Oregon  R.  Co.  41 
Or.  72,  58  L.  R.  A.  192,  67  Pac.  1015,  holding  initial  carrier  not  liable  where 


1285  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  283 

losses  beyond  terminal  expressly  exceptecl,  though  "fastest  passenger  train  serv- 
ice" stipulated  for  on  bill  of  lading. 

Cited  in  notes  (10  L.R.A.  418)  on  liability  of  connecting  carrier;  (5  Eng.  Rul. 
Cas.  349;  31  L.R.A.  (N.S.)  103,  105)  on  liability  of  connecting  carrier  for  loss  be- 
yond own  line. 

7  L.    R.  A.  283,  DAVIS  v.  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  53  Ark.  117,  13  S.  W. 

801. 
Hiiilit   of  action   for  negligently  causing:  deatb. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Dawson,  68  Ark.  3,  56  S.  W.  46,  holding 
right  of  action  survives  if  deceased  lived  after  tort,  though  unconscious  till 
death;  Brown  v.  Chicago  &  N.  W.  R.  Co.  102  Wis.  163,  44  L.  R.  A.  589,  78  N.  W. 
771,  holding  statutory  actions  by  surviving  relations  supplementary  to  action 
surviving  to  personal  representative;  Ohnmacht  v.  Mt.  Morris  Electric  Light  Co. 
66  App.  Div.  485,  73  N.  Y.  Supp.  296,  holding  father  not  entitled  to  damages  for 
loss  of  services  of  infant  child  where  latter's  death  instantapeous ;  Texarkana  Gas 
&  Electric  Light  Co.  v.  Orr,  59  Ark.  222,  43  Am.  St.  Rep.  30,  27  S.  W.  66,  holding 
complaint  deemed  on  appeal  amended  to  conform  to  proof  where  ambiguous 
whether  for  benefit  of  estate  or  of  wife  and  kin;  Schleiger  v.  Northern  Terminal 
Co.  43  Or.  10,  72  Pac.  324,  holding  action  for  wrongful  killing  of  minor  main- 
tainable by  his  father  as  administrator;  United  States  Electric  Lighting  Co.  v. 
Sullivan,  22  App.  D.  C.  130,  holding  action  for  damages  for  negligent  killing  of 
intestate  properly  brought  by  latter's  administratrix;  Davis  v.  Nichols,  54  Ark. 
360,  15  S.  W.  880,  holding  that  action  for  wrongful  killing,  for  benefit  of  dece- 
dent's estate,  survives  death  of  wrongdoer :  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Gorman, 
92  Ark.  107,  122  S.  W.  116,  holding  a  statute  providing  for  institution  of  action 
for  negligent  death,  by  personal  representative  and  if  there  be  none,  by  the  heirs 
for  benefit  of  widow  and  next  of  kin.  creates  two  causes  of  action — one  for  per- 
sonal estate  and  the  other  for  benefit  of  widow  and  next  of  kin;  Murphy  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.  92  Ark.  163,  122  S.  W.  636,  holding  that  two  causes  of 
action  arise — one  for  benefit  of  estate  by  administrator  the  other  for  benefit  of 
next  of  kin,  both  based  on  different  rights  the  one  in  benefit  of  kin  based  on 
pecuniary  interest  in  life  of  deceased;  Tillar  v.  Reynolds,  96  Ark.  363,  30  L.R.A. 
(N.S.)  1045,  131  S.  W.  969,  holding  that  action  for  benefit  of  widow  and  next  of 
kin,  and  one  for  benefit  of  estate  may  be  joined;  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Hesterly,  98  Ark.  255.  135  S.  W.  874,  to  the  point  that  statute  giving  right  of 
action  for  death  did  not  create  a  right  but  only  preserved  to  injured  person's 
estate  one  that  would  have  ceased  to  exist  at  his  death;  Mahoning  Valley  R.  Co. 
v.  Van  Alstine,  77  Ohio  St.  409,  14  L.R.A.  (N.S.)  898.  83  X.  E.  601,  holding  stat- 
ute creates  two  different  causes  of  action  based  on  different  rights  though  both 
brought  by  one  person  and  the  one  is  not  a  bar  to  the  other;  Fulgham  v. 
Midland  Valley  R.  Co.  167  Fed.  661,  on  the  right  of  two  independent  actions 
for  wrongful  death  in  favor  of  different  persons;  St.  Louis,  M.  &  S.  E.  R.  Co.  v. 
Garner,  76  Ark.  557.  89  S.  W.  550,  holding  father  has  no  right  to  sue  as  next  of 
kin  for  negligent  death  of  son  where  there  is  a  personal  representative;  Earnest 
v.  St.  Louis,  M  &  S.  E.  R.  Co.  87  Ark.  69,  112  S.  W.  141,  holding  that  common 
law  did  not  give  right  of  civil  action  for  wrongful  death  of  a  human  being  and 
that  any  such  right  now  existing  is  purely  statutory;  Choctaw,  0.  &  G.  R.  Co. 
v.  Jackson,  182  Fed.  346;  Fithian  v.  St.  Louis  &  S.  F.  R.  Co.  188  Fed.  844,— 
holding  that  action  for  injury  resulting  in  death  can  be  brought  only  in  name 
of  person  or  persons  to  whom  right  is  given  by  statute. 

Cited  in  footnotes  to  Hennessey  v.  Bavarian  Brewing  Co.  41  L.  R.  A.  385, 
which  sustains  mother's  right  of  action  for  wrongful  death  of  child,  notwith- 


7  L.R.A.  283]  L.  R.  A.  CASES  AS  AUTHORITIES.  1280 

standing  remarriage  and  stepfather's  assumption  of  parental  obligations;  Brink 
v.  Wabash  R.  Co.  53  L.  R.  A.  811,  which  denies  right  of  action  for  rendering  per- 
formance of  contract  to  support  parent  impossible  through  negligent  killing  of 
son. 

Cited  in  notes  (41  L.  R.  A.  810)  on  parent's  common-law  right  of  action  for 
loss  of  services  of  child  killed;  (34  L.  R.  A.  796,  799,  800,  801)  on  how  many 
distinct  causes  of  action  arise  from  injuries  resulting  in  death. 

Distinguished  in  Southern  Bell  Teleph.  &  Teleg.  Co.  v.  Cassin,  111  Ga.  580,  50 
L  R.  A.  697,  36  S.  E.  881,  holding  statutory  action  does  not  survive  to  wife  and 
children  where  deceased  settled  with  and  released  tort  feasor. 

Disapproved  in  Sweetland  v.  Chicago  &  G.  T.  R.  Co.  117  Mich.  344,  43  L.  R.  A. 
573,  75  N.  W.  1066   (concurring  opinion)   majority  holding  damages  not  recover- 
able for   pain   and   suffering  of   passenger   negligently  killed   in   collision  where 
there  is  nothing  to  show  that  death  was  not  instantaneous. 
Measure  of  damages  for  causing  death. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Dawson,  68  Ark.  3,  56  S.  W.  46,  setting 
aside  verdict  of  $4,000  for  pain  and  suffering  where  deceased  unconscious  and 
survived  accident  for  only  moment. 

Cited  in  note  (17  L.  R.  A.  73,  80)  on  measure  of  recovery  for  death  caused  by 
negligence. 
Contributory   negligence   of  infant. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Higgins,  53  Ark.  466,  14  S.  W.  653, 
holding  brakeman's  youth  and  inexperience  properly  considered  in  action  for 
damages  received  while  coupling  in  emergency;  Emma  Cotton  Seed  Oil  Co.  v. 
Hale,  56  Ark.  238,  19  S.  W.  600,  holding  infancy  of  plaintiff  cannot  excuse  negli- 
gence if  aware  of  danger  of  position;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Tomlinson, 
78  Ark.  261,  94  S.  W.  613,  holding  an  eleven  year  old  child  traveling  with  his 
parents  in  a  wagon  injured  at  a  railroad  crossing  is  required  to  use  only  such 
care  and  caution  as  is  according  to  his  maturity  and  capacity,  and  whether  he 
does  so  is  for  the  jury  to  say. 

Assumption    of    risk. 

Reaffirmed  on  later  appeal  in  55  Ark.  466,  18  S.  W.  628. 

Followed  in  Choctaw,  0.  &  G.  R.  Co.  v.  Thompson,  82  Ark.  15,  100  S.  W.  83, 
holding  an  experienced  brakeman  accepting  position  with  company  using  un- 
blocked frogs  assumes  the  risk  therefrom  where  he  is  charged  with  knowledge 
of,  because  of  the  difference  between  the  blocked  and  unblocked;  York  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.  86  Ark.  246,  110  S.  W.  803,  holding  that  an  unblocked 
frog  causing  injury  cannot  be  grounds  for  an  action  where  the  risk  therefrom  is 
assumed. 

Cited  in  Missouri,  K.  &  T.  R.  Co.  v.  Thompson,  11  Tex.  Civ.  App.  667,  33  S.  W. 
718,  and  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Davis,  54  Ark.  394,  26  Am.  St.  Rep.  48,  15 
S.  W.  895,  holding  brakeman  entering  service  of  railway  using  unblocked  frog  as- 
sumes risk  of  injury;  Brmkley  Car  Works  &  Mfg.  Co.  v.  Lewis,  68  Ark.  320,  57 
S.  W.  1108,  holding  laborer  in  lumber  yard  long  acquainted  with  piling  lumber 
assumes  risk  of  falling  piles;  King- Ryder  Lumber  Co.  v.  Cochran,  71  Ark.  58,  70 
S.  \V.  606,  holding  it  question  for  jury  whether  eighteen-year-old  servant  under- 
stood danger  of  operating  defective  saw;  Bowers  v.  Star  Logging  Co.  41  Or.  309, 
68  Pac.  516,  holding  it  question  for  jury  whether  servant  assumed  risk  of  setting 
defective  brake;  West  Pratt  Coal  Co.  v.  Andrews,  150  Ala.  375,  43  So.  348, 
holding  it  not  enough  to  charge  servant  with  assumption  of  risk  that  the  trestle 
on  which  he  works  is  open  to  observation,  but  it  must  be  shown  that  be  knew  of  or 
should  have  known  of  danger  causing  injury;  Ford  v.  Bodcaw  Lumber  Co.  73 
Ark.  55,  83  S.  W.  346,  holding  it  the  duty  of  master  to  warn  youthful  inex- 


1287  L.  E.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  286 

perienced  servant  of  dangers  connected  with  employment  before  subjecting  him  to 
them  though  they  be  patent;  Arkadelphia  Lumber  Co.  v.  Henderson,  84  Ark.  388, 
105  S.  W.  882,  holding  an  inexperienced  youthful  servant  does  not  assume  risks 
from  a  danger  of  the  actual  existence  of  which  he  had  no  knowledge  though  he 
had  a  knowledge  of  the  facts  involving  the  danger;  Arkansas  M.  R.  Co.  v.  Worden, 
90  Ark.  412,  119  S.  W.  828,  holding  inexperienced  servant  does  not  assume  risks  of 
employment  until  he  is  instructed  and  warned  of  it;  St.  Louis  Stave  &  Lumber 
Co.  v.  Sawyer,  90  Ark.  480,  119  S.  W.  830,  holding  youthful  inexperienced  serv- 
ant must  be  shown  to  have  known  and  understood  danger  of  employment  to 
•charge  him  with  assumption  even  though  he  was  properly  warned  and  instructed: 
Holmes  v.  Bluff  City  Lumber  Co.  97  Ark.  189,  133  S.  W.  819,  holding  that  ques- 
tion as  to  whether  sufficient  warning  was  given  to  minor  placed  at  work  in  shop 
was  for  jury  where  only  warning  given  was  "don't  run  against  any  of  saws  or 
you  will  get  hurt;"  Fletcher  v.  Freeman-Smith  Lumber  Co.  98  Ark.  206,  135  S. 
W.  827,  holding  that  brakeman  assumed  risk  of  injury  caused  by  steep  grade 
which  was  open  to  observation  and  was  his  accustomed  place  of  work. 

Cited  in  footnotes  to  Cudahy  Packing  Co.  v.  Marcan,  54  L.  R.  A.  258,  which 
holds  risk  of  block  on  which  minor  employee  works  slipping  on  greasy  floor  as- 
sumed; Marino  v.  Lehmaier,  61  L.  R.  A.  811,  which  holds  risk  of  employment  not 
assumed  per  se,  by  child  whose  employment  was  forbidden  by  statute  because  of 
his  immature  age. 

Cited  in  notes  (8  L.  R.  A.  636)  on  servant's  knowledge  of  defective  and  dan- 
gerous machinery;  (44  L.  R.  A.  42)  on  master's  duty  to  instruct  and  warn  serv- 
ants as  to  perils  of  employment;  (1  L.R.A. (N.S.)  280)  on  assumption  of  risk  by 
minor  employee;  (4  L.R.A. (N.S.)  991)  on  servant's  assumption  of  risk  of  danger 
imperfectly  appreciated. 

Distinguished  in  Galveston,  H.  &  S.  A.  R.  Co.  v.  Hughes,  22  Tex.  Civ.  App.  138, 
54  S.  W.  264,  holding  inexperienced  brakeman  not  guilty  of  contributory  negli- 
gence if  ignorant  of  danger  though  aware  switches  not  blocked;  Graham  v.  New- 
burg  Orrel  Coal  &  Coke  Co.  38  W.  Va.  278,  18  S.  E.  584,  holding  miner  may  work 
in  dangerous  mine  without  contributory  negligence  where  prudent  man  would 
not  quit,  or  where  lulled  to  security  by  assurances  of  safety. 
Charge  to  jury. 

Cited  in  White  v.  McCracken,  60  Ark.  619,  31  S.  W.  882,  condemning  charge 
composed  of  counsel's  submitted  instructions,  for  incompleteness,  lack  of  clarity, 
and  uniformity;  Southern  Exp.  Co.  v.  Texarkana  Water  Co.  54  Ark.  132,  15  S. 
W.  361,  condemning  charge  for  inconsistency  and  inharmoniousness ;  Morrison  v. 
McAtee,  23  Or.  534,  32  Pac.  400,  reversing  for  irreconcilable  conflict  in  attorney's 
instructions  given  by  court;  Conlon  v.  Oregon  Short  Line  R.  Co.  23  Or.  507,  32 
Pac.  397,  holding  failure  to  give  submitted  instructions,  no  error,  though  correct; 
North  Arkansas  &  W.  R.  Co.  v.  Cole,  71  Ark.  43,  70  S.  W.  312,  holding  it  error 
for  court  to  assume  as  undisputed  that  construction  of  road  subjected  land  to 
overflow  and  buildings  to  increased  exposure  to  fire. 

Distinguished  in  Little  Rock  Traction  &  Electric  Co.  v.  Morrison.  69  Ark.  292, 
62  S.  W.  1045,  refusing  to  reverse  where  instruction  simple,  not  misleading,  and 
inconsistent  only  as  to  fact. 

7  L.  R.  A.  286,  PIERCE  v.  WHITTLESEY,  58  Conn.  104,  19  Atl.  513. 
Construction  of  contract   of  employment. 

Cited  in  Wilson  v.  Godkin,  136  Mich.  109.  98  N.  W.  985,  holding  clatise  for 
withholding  of  six  days  pay  till  completion  of  the  work  was  not  necessarily  a 
penalty  because  covering  breaches  of  differing  harmfulness. 


7  L.R.A.  236]  L.  R.  A.  CASES  AS  AUTHORITIES.  1288 

Cited  in  note  (108  Am.  St.  Rep.  59)  on  employment  agreements  purporting  to 
liquidate  damages. 

7  L.  R.  A.  288,  TERRITORY  v.  EVANS,  2  Idaho,  658,  23  Pac.  115. 
State   prohibition    of   exportation    of   game   and    fish. 

Followed,  without  discussion,  in  Territory  v.  Nelson,  2  Idaho,  651,  23  Pac.  116. 

Cited  in  footnotes  to  Smith  v.  State,  51  L.  R.  A.  404,  which  sustains  statute 
prohibiting  possession  of  quail  during  closed  season;  State  v.  Schuman,  47  L.  R. 
A.  153,  which  sustains  statute  prohibiting  sale,  or  keeping  for  sale,  of  trout; 
State  v.  Snowman,  50  L.  R,  A.  544,  which  sustains  statute  requiring  license  for 
business  of  guiding  in  inland  fishing  and  forest  hunting;  State  v.  McGuire,  21  L. 
R.  A.  478,  which  holds  having  in  possession  during  closed  season  fish  previously 
caught  not  an  offense;  State  v.  Mallory,  67  L.R.A.  773,  denying  right  of  state  to 
forbid  nonresident  landowner  to  take  fish  and  game  on  his  property  within  the 
state. 

Cited  in  note  (39  L.  R.  A.  591)  as  to  governmental  control  over  right  of  fishery. 

Distinguished  in  Geer  v.  Connecticut,  161  U.  S.  528,  40  L.  ed.  797,  16  Sup. 
Ct.  Rep.  600,  Affirming  State  v.  Geer,  61  Conn.  152,  13  L.R.A.  806,  3  Inters.  Com. 
Rep.  734,  22  Atl.  1012,  holding  prohibition  of  killing  game  for  transportation  out 
of  state,  valid,  and  referring  to  cited  case  as  having  invalidated  a  like  law  by 
reason  only  of  its  mode  of  enforcement. 

Disapproved  in  Organ  v.  State,  56  Ark.  271,  19  S.  W.  840,  holding  act  prohibit- 
ing exportation  from  state  of  game  and  fish,  not  violative  of  commerce  clause; 
State  v.  Nergaard,  124  Wis.  419,  102  N.  W.  899,  upholding  statute  limiting 
quantity  of  fish  that  may  be  shipped  out  of  state;  Ex  parte  Fritz,  86  Miss.  219, 
109  Am.  St.  Rep.  700,  38  So.  722,  upholding  local  ordinance  pursuant  to  power 
given,  which  regulated  size  of  nets  to  be  used. 

7  L.  R.  A.  289,  NEWMAN  v.  METROPOLITAN  ELEV.  R.  CO.  118  N.  Y.  618,  23 

N.  E.  901. 
Damages   for  taking?  property  for  rig-fat  of  way. 

Cited  in  South  Buffalo  R,  Co.  v.  Kirkover,  176  N.  Y.  305,  68  N.  E.  366,  Affirm- 
ing 86  App.  Div.  60,  83  N.  Y.  Supp.  613;  Rome,  W.  &  O.  R.  Co.  v.  Gleason,  42 
App.  Div.  533,  59  N.  Y.  Supp.  647;  Syracuse  v.  Stacey,  45  App.  Div.  254,  61  X. 
Y.  Supp.  165;  Re  Grade  Crossing,  6  App.  Div.  335,  40  N.  Y.  Supp.  520 — holding 
compensation  should  be  for  actual  value  of  land  taken  and  adequate  compensation 
for  injury  to  the  rest;  Metropolitan  West  Side  Elev.  R.  Co.  v.  Stickney,  150  111. 
384,  26  L.  R.  A.  779,  37  X.  E.  1098,  holding  measure  of  damages  for  land  not  taken 
for  right  of  way  difference  between  value  with  and  without  improvement:  Stru- 
thers  v.  New  York  Elev.  R.  Co.  5  Misc.  240,  25  N.  Y.  Supp.  81,  holding  measure 
of  damages  for  taking  of  easement  is  difference  in  value  of  land  with  and  with- 
out easement;  Bohm  v.  Metropolitan  Elev.  R.  Co.  129  N.  Y.  585,  590,  14  L.  R.  A. 
348,  29  N.  E.  802,  holding  depreciation  in  value  of  land  not  taken  by  use  of  prop- 
erty taken,  measure  of  damages;  New  York  C.  &  H.  R.  R.  Co.  v.  Marshall,  120 
App.  Div.  745,  105  N.  Y.  Supp.  686,  holding  measure  for  laying  of  additional 
tracks  was  value  of  a  right  of  crossing  to  dissevered  lands  and  diminution  of 
value  of  them  by  reason  thereof;  Re  New  York,  W.  &  B.  R.  Co.  73  Misc.  224.  130 
N.  Y.  Supp.  1005:  Xe\v  York  v.  Merola,  143  App.  Div.  514,  127  X.  Y.  Supp.  944,— 
holding  that  commissioners  in  condemnation  proceedings  may  consider  property 
as  a  whole  and  it  is  their  duty  to  give  full  value  of  land  taken,  with  consequen- 
tial damage  to  that  which  remains;  Genesee  River  R.  Co.  v.  Boyington.  60  Mi>c. 
418,  112  X.  Y.  Supp.  343,  holding  fee  must  be  paid  for  to  landowner  as  well  as 
consequential  damage  where  one  railroad  condemns  trackage  rights  on  another's 


L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  289. 

right  of  way;  Re  Board  of  Rapid  Transit  R.  Comrs.  328  App.  Div.  115,  112  X.  Y. 
Supp.  619,  holding  abutters  who  do  not  own  the  fee  of  a  street  must  be  paid  for 
the  damage  to  their  easement  therein  and  also  for  damage  to  their  property  by 
a  subway;  Re  New  York  Bd.  of  Public  Improvement,  99  App.  Div.  578,  91  N.  Y. 
Supp.  161,  as  to  the  damages  recoverable  by  reason  of  "consequential"  injury. 

Cited  in  note   (19  Am.  St.  Rep.  458,  460,  22  Am.  St.  Rep.  50)   on  damages  on 
condemnation  of  right  of  way  for  railroad. 
—  Injury    to    easement. 

Cited  in  Sperb  v.  Metropolitan  Elev.  R.  Co.  137  N.  Y.  598,  33  N.  E.  319;  Book- 
man v.  New  York  Elev.  R.  Co.  137  N.  Y.  305,  33  N.  E.  333,  holding  lot  easements 
interfered  with  by  erection  of  elevated  road,  aside  from  consequential  damages, 
are  of  nominal  value;  Cook  v.  New  York  Elev.  R.  Co.  144  X.  Y.  118,  39  X.  E.  2, 
holding  erroneous  finding  as  to  nominal  value  of  easement  harmless,  where  no 
substantial  benefits  resulted  to  plaintiff's  land  from  building  of  railroad;  Sixth 
Ave.  R.  Co.  v.  Metropolitan  Elev.  R.  Co.  138  N.  Y.  551,  34  X.  E.  400,  holding  ab- 
stract error  in  refusal  to  find  as  to  value  of  easement  taken  by  elevated  road, 
harmless  where  correct  rule  as  to  damages  was  adopted;  Mattlage  v.  New  York 
Elev.  R.  Co.  1  Misc.  340,  48  N.  Y.  S.  R.  684,  20  N.  Y.  Supp.  624,  holding  plaintiff 
entitled  to  mere  nominal  damages  for  taking  of  street  easement;  Hoffman  v.  Man- 
hattan Elev.  R.  Co.  1  Misc.  156,  48  N.  Y.  S.  R.  712,  20  N.  Y.  Supp.  625,  refusing 
injunction  for  mere  taking  of  easement;  Macy  v.  Metropolitan  Elev.  R.  Co.  59 
Hun,  307.  12  N.  Y.  Supp.  804,  upholding  action  for  damages  by  lessor,  lessee  hav- 
ing released  his  interest  in  street  easements  appropriated  by  elevated  road; 
Cunard  v.  Manhattan  R.  Co.  1  Misc.  153,  20  N.  Y.  Supp.  724,  holding  refusal  to 
limit  injury  to  fee  through  taking  of  street  easement,  to  nominal  damages,  ex- 
cluding depreciation  of  remaining  property  thereby,  proper;  Hadden  v.  Metropoli- 
tan Elev.  R.  Co.  75  Hun,  66.  26  X.  Y.  Supp.  995.  reversing  judgment  for  referee's 
erroneous  refusal  to  find  plaintiff's  only  property  in  street  consisted  of  easements 
of  light,  air.  and  access;  Moore  v.  New  York  Elev.  R.  Co.  4  Misc.  135,  23  X.  Y. 
Supp.  863,  holding  abutting  owner  at  least  entitled  to  nominal  damages  by  rea- 
son of  construction  of  elevated  railroad. 

Cited  in  footnotes  to  Metropolitan  West  Side  Elev.  R.  Co.  v.  Stickney,  26  L.  R. 
A.  773.  which  denies  right  to  compensation  in  eminent  domain  where  value  of 
property  not  depreciated;  Aldrich  v.  Metropolitan  West  Side  Elev.  R.  Co.  57  L. 
R.  A.  237,  which  denies  right  to  recover  for  injury  to  apartment  house  from  ele- 
vated road  crossing  highway  19  feet  away;  De  Geofroy  v.  Merchants'  Bridge  Ter- 
minal R.  Co.  04  L.  R.  A.  950.  which  holds  abutting  owner  entitled  to  compensa- 
tion for  damages  resulting  from  building  of  elevated  railroad  in  street. 
Character  of  fund  paid  as  damages. 

Cited  in  Ford  v.  Livingston.  140  N.  Y.  166,  35  N.  E.  437,  holding  money  paid 
for  consequential  damages  to  lot  easements  by  erection  of  elevated  road,  retains 
character  of  real  estate  upon  lunatic  owner's  death. 
Offsetting  benefits  agrainst  eonseqnential  damages. 

Cited  in  Mattlage  v.  Xew  York  Elev.  R.  Co.  14  Misc.  294,  35  N.  Y.  Supp.  704; 
Xette  v.  Xo\v  York  Elev.  R.  Co.  1  Misc.  342,  48  N.  Y.  S.  R.  724,  20  X.  Y.  Supp. 
€27;  Huggins  v.  Manhattan  R.  Co.  1  Misc.  112,  20  N.  Y.  Supp  648;  Purdy  v. 
Manhattan  Elev.  R.  Co.  36  X.  Y.  S.  R.  44,  13  N.  Y.  Supp.  295;  Rich  v.  Xew  York 
T:iov.  R.  Co.  16  Daly,  519.  14  X'.  Y.  Supp.  167;  Welsh  v.  New  York  Elev.  R.  Co.  16 
Daly.  516,  12  X.  Y.  Supp.  545;  Sutro  v.  Manhattan  R.  Co.  137  N.  Y.  593,  33  X. 
E.  334:  Kearney  v.  Metropolitan  Elev.  R.  Co.  27  Jones  &  S.  564,  13  N.  Y.  Supp. 
60:;  Gray  v.  Manhattan  R.  Co.  16  Daly,  511,  12  X.  Y.  Supp.  542;  Odell  v.  Xew 
York  Elev.  R.  Co.  130  X.  Y.  691,  3  Silv.  Ct.  App.  668,  29  X.  K.  '.'OS;  Odell  v.  Met- 
ropolitan Elev.  R.  Co.  3  Misc.  337,  22  X.  Y.  Supp.  737 — holding  that  benefits 


7  L.R.A.  289]  L.  R.  A.  CASES  AS  AUTHORITIES.  1290 


be  taken  into  consideration  in  fixing  amount  of  consequential  damages; 
Buek  v.  Metropolitan  R.  Co.  73  Hun,  254.  25  X.  Y.  Supp.  104S,  holding  refusal 
to  charge  that  plaintiff  could  only  recover  damages  for  building  of  road  to  extent 
disadvantages  exceeded  advantages,  erroneous;  Werfelman  v.  Manhattan  R.  Co. 
16  Daly,  359,  11  N.  Y.  Supp.  66,  holding  not  error  to  refuse  to  find  as  abstract 
proposition  that  benefits  should  be  set  off  against  damages;  Brush  v.  Manhattan 
R.  Co.  26  Abb.  N.  C.  80,  13  N.  Y.  Supp.  908,  holding  plaintiff  cannot  recover  for 
damages  to  easement  by  elevated  road  without  showing  substantial  damages; 
Pratt  v.  New  York  C.  &  H.  R.  R.  Co.  90  Hun,  88-,  35  N.  Y.  Supp.  557,  holding 
injunction  will  not  be  issued  without  proof  of  substantial  damages;  Doyle  v. 
Manhattan  R.  Co.  32  N.  Y.  S.  R.  72,  UN.  Y.  Supp.  65,  granting  re-argument, 
after  reversal  for  exclusion  of  evidence  of  enhanced  value  of  property,  when  simi- 
lar evidence  was  admitted  without  objection  ;  Sixth  Ave.  R.  Co.  v.  Manhattan  R. 
Co.  14  X.  Y.  Supp.  97,  refusing  to  find  property  in  front  of  which  elevated  ro:id 
station  had  been  built,  had  been  benefited  thereby;  Struthers  v.  New  York  Elev. 
R.  Co.  5  Misc.  241,  25  N.  Y.  Supp.  81,  holding  referee's  finding  on  conflicting  evi- 
dence of  no  benefits  resulting  from  building  of  road,  conclusive  unless  clearly 
wrong;  Cheney  v.  Syracuse,  O.  &  N.  Y.  R.  Co.  8  App.  Div.  620,  40  N.  Y.  Supp. 
1103,  awarding  damages  to  abutting  landowner  for  injury  by  railroad,  following 
rule  as  to  consideration  of  benefits;  Re  Grade  Crossing,  154  N.  Y.  557,  49  N.  E. 
127,  holding  under  grade-crossing  act  abutting  owners  entitled  to  compensation 
for  consequential  damages  through  change  in  street  grade  ;  Skeljy  v.  New  York 
Elev.  R.  Co.  7  Misc.  92,  27  N.  Y.  Supp.  304,  upholding  refusal  to  find  special  ben- 
efits should  be  offset  against  consequential  damages,  after  previous  finding  of  no 
special  benefit;  Re  New  York,  64  Misc.  269,  118  N.  Y.  Supp.  580,  holding  in  pro- 
ceedings to  acquire  lands  in  the  city  of  New  York  for  streets,  the  commissioners 
of  estimate  and  assessment  may  not  set  off  against  the  damages  for  taking  por- 
tions of  lots  benefits  to  the  portions  not  taken  arising  from  the  use  of  the  portions 
taken  as  streets;  Eutaw  v.  Botnick,  150  Ala.  434,  43  So.  739,  on  restriction  of 
offset  to  consequential  damages;  Lehigh  Valley  R.  Co.  v.  New  York,  66  Misc. 
434.  123  N.  Y.  Supp.  378,  as  to  assessment  of  benefits  in  offset  to  damages  for 
land  not  taken  but  damaged;  Manhattan  R.  Co.  v.  Stuyvesant,  126  App.  Div. 
850,  111  N.  Y.  Supp.  222,  holding  in  estimating  the  damage  caused  by  taking 
easements  of  light  and  air  the  possible  benefits  to  the  realty  abutting  may  be 
considered. 

Cited  in  footnotes  to  Schroeder  v.  Joliet,  52  L.  R.  A.  634,  which  authorizes 
consideration  of  benefit  from  improvement  in  assessing  damages  from  cutting 
down  street;  Beveridge  v.  Lewis,  59  L.  R.  A.  581,  which  denies  right  to  deduct 
benefits  from  damages  in  exercise  of  eminent  domain  by  individual. 

Cited  in  note  (9  L.R.A.  (N.S.)  812,  843)  on  right  to  set  off  benefits  against 
damages  on  condemnation. 

Distinguished  in  Korn  v.  New  York  Elev.  R.  Co.  39  N.  Y.  S.  R.  323,  15  N.  Y. 
Supp.  10,  holding  not  error  to  refuse  to  recognize  special  benefits  by  building  of 
road,  where  proof  was  not  sufficient  to  justify  such  finding;  Re  Brooklyn  Elev. 
R.  Co.  87  Hun,  105,  33  N.  Y.  Supp.  974,  holding  depreciation  in  value  of  one  piece 
of  property  in  condemnation  proceedings  should  not  be  set  off  against  advantage 
to  others;  Lewiston  &  Y.  F.  R.  Co.  v.  Ayer,  27  App.  Div.  575,  50  N.  Y.  Supp.  502, 
holding  damages  awarded  for  taking  strip  of  land  for  right  of  way  cannot  be  off- 
set by  plaintiff's  right  of  transportation  on  road;  Re  New  York,  190  N.  Y.  360. 
16  L.R.A.  (N.S.)  339,  83  N.  E.  299,  13  A.  &  E.  Ann.  Cas.  598,  holding  benefits  from 
a  public  improvement  to  land  not  taken  cannot  be  set  off  against  the  value  of  the 
land  taken,  where  no  question  of  assessment  of  benefits  is  involved  and  the  taking 
vests  the  fee  in  the  public  which  may,  at  discretion,  abandon  the  improvement 


1291  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  293 

and  divert  the  land  to  other  uses;  Re  Bradley.  68  Misc.  515,  125  N.  Y.  Supp.  142, 
holding  that  in  proceedings  to  appraise  damages  for  change  of  grade  under 
section  59  of  Village  Law.  benefits  conferred  by  paving  newly  graded  street  are 
not  properly  an  offset  to  injuries  done  by  regrading. 

7  L.  R.  A.  293,  BAXTER  v.  BROOKLYN  L.  INS.  CO.  119  N.  Y.  450,  23  N.  E. 

1048. 
Forfeiture   of  life   insurance   policy   by   default   after  notice. 

Cited  in  Stokes  v.  Amerman,  121  X.  Y.  343,  24  N.  E.  819,  holding  no  policy 
forfeited  until  after  statutory  thirty-day  notice  given;  Osborne  v.  Home  L.  Ins. 
Co.  123  Cal.  612,  56  Pac.  616,  holding  no  forfeiture  for  nonpayment  of  premium 
without  thirty-day  statutory  notice ;  Kentucky  Life  &  Acci.  Ins.  Co.  v.  Kaufman, 
102  Ky.  12,  42  S.  W.  1104,  holding  policy  to  remain  in  effect  for  thirty  days 
after  notice  of  nonpayment;  Rosenplanter  v.  Provident  Sav.  L.  Ins.  Co.  46  L.  R. 
A.  475.  37  C.  C.  A.  570,  96  Fed.  725,  holding  life  of  policy  dependent  upon  payment 
within  thirty  days  after  notice,  stipulations  to  contrary  notwithstanding; 
Mutual  L.  Ins.  Co.  v.  Hill,  55  C.  C.  A.  540,  118  Fed.  712,  holding  stipulation  in 
policy  providing  for  construction  as  if  contract  were  made  in  New  York,  binding 
on  company  on  question  of  forfeiture;  Howell  v.  John  Hancock  Mut.  L.  Ins.  Co. 
107  App.  Div.  202,  95  N.  Y.  Supp.  87,  holding  evidence  insufficient  to  show  mail- 
ing of  requisite  notice;  Rowe  v.  Brooklyn  L.  Ins.  Co.  11  App.  Div.  537,  42  N.  Y. 
Supp.  646,  holding  sending  of  notice  to  person  who  had  been  accustomed  to  pay 
the  premiums  on  his  own  life  was  good:  Linn  v.  New  York  L.  Ins.  Co.  78  Mo 
App.  204;  Auspitz  v.  Equitable  Life  Assur.  Co.  62  Misc.  470,  115  N.  Y.  Supp. 
109, — holding  mere  proof  of  nonpayment  of  premiums  when  due  will  not  defeat  an 
action  upon  a  policy  of  life  insurance,  unless  coupled  with  a  proof  of  service  of 
notice  of  forfeiture  as  required  by  statute;  Adam  -v.  Manhattan  L.  Ins.  Co.  204 
N.  Y.  360,  97  N.  E.  740,  to  the  point  that  policy  of  insurance  issued  while  statute 
is  in  force  regulating  forfeiture  is  deemed  to  have  been  issued  subject  to  pro- 
visions thereof. 

Cited  in  footnote  to  McQuillan  v.  Mutual  Reserve  Fund  Life  Asso.  56  L.  R.  A. 
233,  which  holds  forfeiture  of  policy  waived  by  retaining  payment  made  after 
default  without  notice  of  any  condition  affixed. 

Cited  in  note  (63  L.  R.  A.  848  ^  on  ronflirt  of  laws  as  to  contracts  of  insurance. 

Distinguished  in  Mutual  L.  Ins.  Co.  v.  Cohen,  179  U.  S.  268,  45  L.  ed.  185,  21 
Sup.  Ct.  Rep.  106,  holding  New  York  statutes  do  not  apply  to  or  control  policy 
issued  to  citizen  of  Montana  by  Xew  York  company. 
Notice  of  nonpayment  condition  precedent   to  attacking  policy. 

Cited  in  Knight  v.  Supreme  Court,  O.  of  C.  F.  2  Silv.  Sup.  Ct.  456,  24  N.  Y.  S. 
R.  847.  6  N.  Y.  Supp.  427,  holding  nonpayment  of  assessment  unavailable  as  de- 
fense when  insured  was  not  given  notice  required  by  by-laws;  Mullen  v.  Mutual 
L.  Ins.  Co.  89  Tex.  262,  34  S.  W.  605 ;  Equitable  Life  Assur.  Soc.  v.  Nixon,  26  C. 
C.  A.  624,  26  U.  S.  App.  482,  81  Fed.  800  and  Hicks  v.  National  L.  Ins.  Co.  9  C. 
C.  A.  218,  20  U.  S.  App.  410,  60  Fed.  692:  McMaster  v.  New  York  L.  Ins.  Co.  40 
C.  C.  A.  148,  99  Fed.  886 :  New  York  L.  Ins.  Co.  v.  Dingley,  35  C.  C.  A.  248,  P3 
Fed.  157, — holding  failure  to  give  statutory  notice  of  default  in  payments  pro- 
hibits forfeiture  of  policy  by  company. 

Cited  in  footnote  to  Mutual  L.  Ins.  Co.  v.  Hill,  49  L.  R.  A.  127,  which  requires 
notice  of  accrual  of  premium  before  forfeiting  policy  for  nonpayment. 

Cited  in  note  (14  L.  R,  A.  283)  on  payment  of  premium  after  death  to  keep 
insurance  in  force. 

Distinguished  in  Johnson  v.  New  York  L.  Ins.  Co.  109  Iowa,  710,  50  L.  R.  A. 
100,  footnote  p.  99,  78  N.  W.  905,  holding  change  of  policy  into  nonforfeitable 


7  L.R.A.  293]  L.  R.  A.  CASES  AS  AUTHORITIES.  1292 

paid-up  policy  for  fixed  period  makes  statutory  notice  unnecessary  after  default. 

Questioned  in  Griesemer  v.  Mutual  L.  Ins.  Co.  10  Wash.  211,  38  Pac.  1034,  hold- 
ing till  statutory  notice  no  advantage  to  company  derived  from  nonpayment  of 
premium. 
When  tender  of  premium   unnecessary. 

Cited  in  Mutual  L.  Ins.  Co.  v.  Hill,  49  L.  R.  A.  132,  38  C.  C.  A.  159,  97  Fed. 
270,  holding  tender  unnecessary  before  action,  as  no  forfeiture  unless  company 
prove  nonpayment  after  notice;  Fischer  v.  Metropolitan  L.  Ins.  Co.  167  X.  Y. 
183,  60  N.  E.  431,  Affirming  37  App.  Div.  581,  56  N.  Y.  Supp.  260,  holding  one  not 
required  to  show  payment  on  day  fixed,  policy  remaining  valid  till  end  of  notice 
of  default. 

7  L.  R.  A.  295,  STATE  v.  CREEDEN,  78  Iowa,  556,  43  X.  W.  673. 
Manufacture  and  sale  of  intoxicating-  liquors. 

Cited  in  footnotes  to  Com.  v.  Fowler,  33  L.  R.  A.  839,  which  sustains  restraint 
of  sales  of  liquor  by  druggists  for  medicinal  purposes  except  on  physician's  pre- 
scription; Bennett  v.  Pulaski,  47  L.  L.  R.  278,  which  sustains  ordinance  for  clos- 
ing saloons  between  ten  and  four  at  night  and  on  Sundays,  but  not  requirement 
for  removing  curtains  on  front  doors  and  windows;  Landry  v.  New  Iberia,  56  L. 
R.  A.  285,  which  denies  city's  power  to  arbitrarily  declare  particular  licensed  sa- 
loon a  nuisance;  State  v.  Gerhardt,  33  L.  R.  A.  313,  which  upholds  requirement 
for  locking  doors  of  room  where  liquor  sold  during  prohibited  hours;  Gage  v. 
Harvey,  43  L.  R.  A.  143,  wrhich  holds  loss  of  money  taken  from  intoxicated  per- 
son's pocket  not  included  in  damages  from  sale  of  liquor  to  him;  Laugel  v.  Bush- 
nell,  58  L.  R.  A.  266,  which  sustains  ordinance  declaring  places  where  hop  ale, 
hop  and  malt  mead,  and  cider  sold,  nuisances;  Kirkland  v.  State,  65  L.R.A.  76 
which  holds  proceedings  to  condemn  and  destroy  liquor  kept  for  sale  in  prohibited 
district  not  criminal;  State  ex  rel.  Galle  v.  Xew  Orleans.  67  L.R.A.  70,  which 
denies  right  to  refuse  liquor  license  on  objection  of  minority  property  holders  or 
on  ground  that  no  more  barrooms  are  needed. 

Cited  in  notes  (9  L.  R.  A.  782,  10  L.  R.  A.  82)  on  laws  prohibiting  manufacture 
and  sale  of  intoxicating  liquors;  (46  L.  R.  A.  417)  on  liability  of  carrier  for 
transporting  liquors;  (4  L.R.A.  (N.S.)  810)  on  injunction  against  saloon  be- 
. cause  of  character  of  locality;  (15  L.R.A.  (N.S.)  925)  on  constitutional  right  to 
prohibit  sale  of  intoxicants. 

7  L.  R.  A.  302,  GRISWOLD  v.  WEBB,  16  R.  I.  649,  19  Atl.  143. 
Control   of  carriers   and   innkeepers   over   their   premises. 

Cited  in  Godbout  v.  St.  Raul  Union  Depot  Co.  79  Minn.  197,  47  L.  R,  A.  536, 
81  N.  W.  835;  Philadelphia  &  R.  R.  Co.  v.  Godfrey,  19  Montg.  Co.  L.  Rep.  130. 
28  Pa.  Co.  Ct.  328;  Donovan  v.  Pennsylvania  Co.  61  L.  R.  A.  143,  57  C.  C.  A.  364, 
120  Fed.  217 — upholding  right  of  railroad  company  to  grant  exclusive  privilege  to 
one  hackman  to  solicit  passengers  on  its  premises;  Hedding  v.  Gallagher,  72  N. 
H.  393,  64  L.  R.  A.  821,  57  Atl.  225.  upholding  right  of  railroad  company  to 
grant  exclusive  privilege  of  entering  upon  its  premises  for  purpose  of  carrying 
baggage  of  passengers;  Lucas  v.  Herbert.  148  Ind.  66,  37  L.  R.  A.  377,  47  X*.  E. 
146,  upholding  right  of  railroad  company  to  designate  where  hacks  and  omni- 
fmses  shall  stand  on  its  premises;  New  York,  N.  H.  &  H.  R.  Co.  v.  Bork,  23  K.. 
I.  222,  49  Atl.  965,  upholding  right  of  carrier  to  exclude  hackmen  from  soliciting 
passengers  on  its  premises;  Cosgrove  v.  Augusta,  103  Ga.  839,  42  L.  R.  A.  714,  68 
Am.  St.  Rep.  149,  31  S.  E.  445,  denying  right  of  city  to  exclude  omnibus  drivers 
from  soliciting  passengers  in  railroad  station;  State  v.  Steele,  106  X.  C.  783,  8 
L.  R,  A.  523,  19  Am.  St.  Rep.  573,  11  S.  E.  478,  upholding  right  of  innkeeper 


1293  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  304 

to  exclude  liverymen  from  soliciting  business  in  his  hotel;  Cosgrove  v.  Augustar 
303  Ga.  839,  42  L.R.A.  711,  68  Am.  St.  Rep.  349,  31  S.  E.  445,  to  the  point  that 
railroad  may  exclude  persons  who  come  on  grounds  to  transact  private  business 
such  as  selling  lunches  or  soliciting  passengers. 

Cited  in  notes  (22  Am.  St.  Rep.  702;  16  L.R.A.(N.S.)  780)  on  right  to  dis- 
criminate between  solicitors  of  patronage  at  depots,  wharves,  etc. 

7  L.  R.  A.  304,  WOOD  v.  BULLARD,  151  Mass.  324,  25  X.  E.  67. 

Action  after  distribution  to  charge  heir  with  share  of  claim,  in  Bullard  v.  Moor, 
158  Mass.  422,  33  N.  E.  928,  and  Bullard  v.  Perry,  66  Vt.  481.  29  Atl.  787. 
Gifts  to  heirs  surviving  at  happening:  of  event. 

Followed  in  Peck  v.  Carlton,  154  Mass.  234,  28  N.  E.  166,  holding  members  of 
class  to  wnom  gift  given  means  those  living  at  event  occurring  after  decease  of 
testator. 

Cited  in  Proctor  v.  Clark,  154  Mass.  48,  12  L.  R.  A.  724,  27  N.  E.  673,  holding 
terms  "then  heirs'"  of  devisee  refer  to  those  surviving  at  happening  of  event  sub- 
sequent to  testator's  death;  Wason  v.  Ranney,  167  Mass.  160,  45  N.  E.  85,  hold- 
ing in  deed  to  life  tenant,  then  to  heirs,  heirs  take  as  of  tenant's  decease;  Cod- 
man  v.  Brooks,  167  Mass.  504,  46  N.  E.  102,  holding  next  of  kin  determined  as  of 
fixed  date  without  reference  to  death  of  testator;  Bigelow  v.  Clap,  166  Mass.  91, 
43  X.  E.  1037,  holding  words  "who  may  then  be  living"  refer  to  those  surviving 
occurrence  of  certain  event;  Welch  v.  Brimmer,  169  Mass.  212,  47  N.  E.  699, 
holding  heirs  of  testator  those  determined  upon  death  of  sole  devisee  without  is- 
sue; Heard  v.  Read,  169  Mass.  223,  47  N.  E.  778,  holding  testator's  heirs  living 
at  life  tenant's  death,  meant  by  provision  in  will  that  at  "her  decease"  that  re- 
mainder shall  be  divided  among  testator's  heirs  at  law  as  though  he  died  intes~ 
tate;  Pulse  v.  Osborn,  30  Ind.  App.  633,  64  N.  E.  59,  holding  devise  to  daughter, 
conditioned  that  in  case  of  her  death  before  grandchildren  of  testatrix  it  should 
go  to  grandchildren,  determinable  fee;  Boston  Safe  Deposit  &  T.  Co.  v.  Blanchard, 
196  Mass.  40,  81  N.  E.  654,  holding  limitation  over  after  numerous  and  astute 
provisions  for  wife  and  immediate  family  was  contingent  on  failure  of  descendants 
at  future  time;  Clarke  v.  Fay,  205  Mass.  232,  27  L.R.A. (N.S.)  458,  91  N.  E.  328, 
to  the  point  that  under  will  giving  estate  to  children  for  life  and  upon  death 
of  testator's  children  leaving  issue  then  living,  to  such  children,  the  words  then 
living  have  reference  to  death  of  child  and  not  of  testator;  Wallace  v.  Diehl,  202 
X.  Y.  161,  33  L.R.A. (X.S.)  16,  95  X.  E.  646,  holding  that  under  bequest  to  pay 
income  to  children  for  life  and  after  decease  of  survivor  of  them  to  distribute 
fund  to  those  who  may  take  as  my  heirs,  persons  to  take  are  those  who  were 
heirs  at  testator's  death. 

Cited  in  footnote  to  Allison  v.  Allison,  63  L.R.A.  920,  which  holds  that  devise 
of  remainder  at  death  of  life  tenant  to  be  divided  among  testator's  heirs  at  law 
refers  to  heirs  living  at  testator's  death. 

Cited  in  notes  (33  L.R.A.  (N.S.)  4,  6,  19,  40)  on  time  for  ascertaining  who 
take  under  gift  over  to  testator's  "heirs,"  "next  of  kin,"  etc:  (25  Eng.  Rul.  Cas. 
612)  on  time  of  vesting  of  gift  by  will  to  such  of  a  class  as  fulfill  a  certain  con- 
dition; (25  Eng.  Rul.  Cas.  697)  on  time  of  vesting  of  contingency  over  to  testat- 
or's heirs,  or  next  of  kin. 
Creation  of  contingent  remainder. 

Cited  in  Eager  v.  Whitney,  103  Mass.  466,  40  X.  E.  1046,  holding  will  providing 
for  distribution  in  future  to  ''then  heirs"  as  in  intestacy  creates  contingent  re- 
mainder; Pollock  v.  Farnham,  156  Mass.  391,  31  N.  E.  298,  holding  gift  to  lega- 
tee after  death  of  life  tenant  falls  into  residuum  upon  death  before  life  tenant. 


7  L.R.A.  304]  L.  R.  A.  CAPES  AS  AUTHORITIES.  1294 

Etetoppel. 

Cited  in  Girard  F.  &  M.  Ins.  Co.  v.  Canan,  195  Pa.  592,  46  Atl.  115,  holding  one 
setting  up  estoppel  must  show  grounds  therefor. 

Distinguished  in  Dole  Bros.  Co.  v.  Cosmopolitan  Preserving  Co.  167  Mass.  483, 
57  Am.  St.  Rep.  477,  46  N.  E.  105,  holding  sureties,  having  reasonable  cause  to  be- 
lieve that  agent  had  no  power  to  execute  bond  but  not  actually  knowing  it,  not 
estopped  to  set  up  lack  of  power  as  defense. 

7  L.  R.  A.  309,  RANDALL  v.  EVENING  NEWS  ASSO.  79  Mich.  266,  44  X.  W. 

783. 

Second  appeal  in  97  Mich.  137,  56  N.  W.  361. 
Libel  per  se. 

Cited  in  Thibault  v.  Sessions,  101  Mich.  283,  59  N.  W.  624,  holding  an  article 
commonly  understood  to  charge  teacher  with  indecent  and  criminal  liberties  with 
pupils'  persons,  in  which  plaintiff  has  assisted,  actionable  per  se ;  Field  v.  Main -o. 
122  Mich.  558,  81  N.  W.  354,  holding  publication  pending  election  imputing  re- 
mark by  politician  of  ability  to  buy  all  votes  of  certain  class,  and  that  this  indi- 
cates how  election  to  be  carried,  libelous  per  se;  Owen  v.  Dewey,  107  Mich.  72,  65 
N.  W.  8,  holding  newspaper's  publication  of  accusation  of  criminal  offense  in  at- 
tempting to  bribe  legislator,  not  privileged  although  in  good  faith. 

Cited  in  footnotes  to  Augusta  Evening  News  v.  Radford,  20  L.  R.  A.  533,  which 
holds  newspaper  article  charging  constable  with  soliciting  business  for  magis- 
trates' courts  libelous;  Upton  v.  Hume,  21  L.  R.  A.  493,  which  holds  false  impu- 
tation of  crime  to  candidate  not  privileged ;  Coffin  v.  Brown,  55  L.  R.  A.  732,  which 
denies  right  to  falsely  attack  character  of  appointee  of  governor  to  prevent  lat- 
ter's  re-election;  Wofford  v.  Meeks,  55  L.  R.  A.  214,  which  holds  libelous,  publi- 
cation imputing  to  county  officials  prostitution  of  county  finances  by  awarding 
contracts  to  persons  of  same  political  faith;  Eikhoff  v.  Gilbert,  51  L.  R,  A.  451, 
which  denies  privilege  to  circular  addressed  to  voters  announcing  that  candidate 
for  re-election  has  championed  legislation  opposed  to  moral  interests  of  commun- 
ity; State  v.  Hoskins,  47  L.  R.  A.  233,  holding  publication  of  charges  against  can- 
didate for  office  of  judge,  not  privileged  although  published  outside  the  judicial 
district;  Star  Pub.  Co.  v.  Donahoe,  65  L.R.A.  980,  which  holds  newspaper  pub- 
lication charging  candidate  for  office  with  a  criminal  offense,  not  privileged. 

Cited  in  note  (8  L.  R.  A.  193)  as  to  what  constitutes  libel  or  slander. 
Allegation   of  special   damage. 

Distinguished  in  Smedley  v.  Soule,  125  Mich.  197,  84  N.  W.  63,  holding  plaintiff 
for  libel  cannot  recover  for  damage  in  his  profession  unless  alleged. 
N  «•••(•**!!  y    of    innuendo    -where    libel    plain. 

Cited  in  Sanford  v.  Rowley,  93  Mich.  123,  52  N.  W.  1119,  holding  innuendo 
surplusage  wrhere  meaning  of  language  charged  as  libelous,  plain. 

7  L.  R.  A.  313,  FARMERS  &  M.  NAT.  BANK  v.  LOFTUS.  133  Pa.  97,  19  Atl.  347. 
Capacity   of  married   -woman    to  contract. 

Cited  in  Lewis  v.  Linton,  24  Pa.  Co.  Ct.  189  holding  contract  made  and  executed 
in  foreign  country  between  subjects  thereof,  enforceable  according  to  lex  loci 
contractus;  Harrar  v.  Croney,  13  Pa.  Co.  Ct.  194,  2  Pa.  Dist.  R.  375,  32  W.  X. 
C.  91,  10  Lane.  L.  Rev.  359,  holding  wife's  note  for  husband's  debt  valid  as  not 
within  inhibition  of  accommodation  indorsement  or  guaranty  by  married  woman; 
Thompson  v.  Minnich,  227  111.  438,  81  N.  E.  336,  holding  indenture  of  adoption 
with  provision  for  inheritance  from  married  woman  w7as  void  and  incapable 
of  ratification. 


1295  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  316 

Cited  in  notes  (57  L.R.A.  523)   as  to  conflict  of  laws  as  to  capacity  of  married 
woman  to  contract;    (33  L.R.A.(X.S.)   742)   on  validity  of  new  promise  by  woman 
after  removal  of,  to  pay  debt  incurred  during  disability. 
Conflict  of  laws  as  to  pledges  and  sales. 

Cited  in  Swedish- American  Nat.  Bank  v.  First  Nat.  Bank,  89  Minn.  115,  99  Am. 
St.  Rep.  549,  94  N.  W.  218,  holding  that  validity  of  pledge  is  to  be  determined 
according  to  law  of  state  where  pledged  property  is  situated;  First  Nat.  Bank  v. 
Dean,  28  Jones  &  S.  305,  16  X.  Y.  Supp.  107,  17  N.  Y.  Supp.  375,  holding  law  of 
Xt-w  York  governed  where  goods  were  stored  there  and  parties  sued  there,  as  to 
rights  of  bona  fide  transfer  of  warehouse  receipts. 

Cited  in  note  (64  L.  R.  A.  829)  on  conflict  of  laws  as  to  sales  of  personal 
property. 

7  L.  R.  A.  316,  RUPARD  v.  CHESAPEAKE  &  O.  R,  CO.  88  Ky.  280,  11  S.  W.  70. 
Warning;*    at    rail-tray    crossings. 

Cited  in  Cowen  v.  Watson,  91  Md.  353,  46  Atl.  996,  holding  question  for  jury 
whether  blowing  of  whistle  directly  over  highway  crossing  was  negligent:  John- 
son v.  Southern  P.  R.  Co.  147  Cal.  630,  1  L.R.A.  (X.S.)  311,  82  Pac.  306,  3 
A.  &  E.  Ann.  Cas.  358,  holding  it  duty  of  railroad  under  statute  to  signal  ap- 
proach to  overgrade  as  well  as  to  grade  crossings;  St.  Louis  &  S.  F.  R.  Co.  v. 
Morrison,  73  Kan.  267,  85  Pac.  295,  as  to  duty  at  private  crossings  not  on  grade; 
Louisville  &  N.  R.  Co.  v.  Shearer,  119  Ky.  651,  59  S.  W.  330,  holding  it  for  jury 
where  a  signal  might  have  been  worse  than  none,  but  because  of  its  omission 
plaintiff  was  at  bridge  when  train  passed;  Louisville  &  N.  R.  Co.  v.  Sawyer,  11-3 
Tenn.  96,  69  L.R.A.  665,  108  Am.  St.  Rep.  881,  86  S.  W.  386,  4  A.  &  E.  Ann.  Cas. 
948,  holding  duty  not  absolute  at  overhead  crossing  but  if  in  fact  it  is  dangerous, 
proper  signal  must  be  given,  the  question  being  for  jury. 

Cited  in  footnote  to  Louisville  &  X.  R.  Co.  v.  Sawyer,  69  L.R.A.  662,  which 
holds  duty  to  sound  warnings  when  trains  approach  trestle  over  highway  depend- 
ent on  dangerous  character  of  the  place. 

Cited  in  notes  (9  L.  R.  A.  159,  11  L.  R.  A.  385)  on  duty  of  railroad  to  warn 
travelers  on  approach  to  highway  crossings;  (24  Am.  St.  Rep.  507)  on  duty  to 
give  signals  at  railway  crossings. 

Distinguished  in  Conway  v.  Louisville  &  N.  R.  Co.  135  Ky.  240,  119  S.  W.  206, 
holding  under  the  evidence  failure  to  give  warning  at  crossing  was  not  proximate 
cause  of  injury 

Questioned  in  Everett  v.  Great  Northern  R.  Co.  100  Minn.  324,  9  L.R A.  ( N.S. ) 
710,  111  N.  W.  281,  10  A.  &  E.  Ann.  Cas.  294,  holding  a  railway  company  is  not 
under  a  legal  duty  to  give  the  signal  required  by  a  statute  for  the  benefit  of  a 
person  who  is  driving  a  team  along  a  street  parallel  to  the  railway  track  near 
a  crossing,  but  who  does  not  intend  to  use  the  crossing. 
Contributory  negligence. 

Cited  in  Cowen  v.  Watson,  91  Md.  355,  46  Atl.  996,  holding  at  dangerous  cross- 
ing care  and  caution  is  mutual  and  reciprocal. 

Cited  in  footnotes  to  Louisville  &  X.  R.  Co.  v.  Webb,  11  L.  R.  A.  674,  which 
holds  failure  to  use  senses  before  crossing  track  not  excused  by  unlawful  speed 
of  train  and  watchman's  failure  to  do  duty;  Oleson  v.  Lake  Shore  &  M.  S.  R.  Co. 
32  L.  R.  A.  149,  which  holds  it  negligent  to  attempt  to  cross  track  immediately 
after  passage  of  train  whose  smoke  obstructs  view;.  Woehrle  v.  Minnesota  Trans- 
fer R.  Co.  52  L.  R.  A.  349,  which  holds  traveler's  failure  to  look  and  listen  when 
watchman  absent  not  negligence  per  se ;  Lorenz  v.  Burlington,  C.  R.  &  X.  R.  Co. 
56  L.  R.  A.  753,  which  holds  negligence  of  one  pursuing  cow  in  not  looking  and 


7  L.R.A.  316]  L.  R.  A.  CASES  AS  AUTHORITIES.  1296 

listening  before  crossing  railroad  track  for  jury;  Keenan  v.  Union  Traction  Co. 
58  L.  R.  A.  217,  which  holds  failure  to  look  for  train  within  35  feet  of  track, 
negligence;  Passman  v.  West  Jersey  &  Seashore  R.  Co.  61  L.  R.  A.  609,  which 
holds  cutting  of  train  on  side  track  at  highway  crossing  not  invitation  to  cross 
without  using  ordinary  precaution ;  Colorado  &  Southern  R.  Co.  v.  Thomas,  70 
L.R.A.  681,  which  holds  failure  to  look  and  listen  before  crossing  track  not  ex- 
cused by  existence  of  building  adjoining  highway  which  would  obstruct  view  of 
tracks  and  by  noise  created  therein  which  would  prevent  hearing  approaching 
train. 

Cited  in  notes   (13  L.R.A.  75)   on  liability  of  street  car  company  for  injury  to 
pedestrians;    (6  L.R.A.  (N.S.)    150)    on  duty  to  stop,  look  and  listen  upon  ap- 
proaching overhead  or  underground  crossings. 
Duty  of  carrier  at  crossings. 

Cited  in  footnote  to  Birmingham  Mineral  R.  Co.  v.  Jacobs,  12  L.  R.  A.  830, 
which  holds  failure  to  stop  train  before  crossing  track  of  other  railroad  not  ex- 
cused by  fact  that  rear  of  train  would  be  left  standing  across  other  track. 
Duty  of   carrier  as   to   speed   of   trains. 

Cited  in  note  (11  L.  R.  A.  435)  on  rate  of  speed  of  railway  trains. 
Duty  of  owner  to  keep  bnildingr  safe. 

Cited  in  note  (11  L.  R.  A.  361)  on  duty  of  owner  of  building  to  keep  it  in  safe 
condition. 

7  L.  R,  A.  319,  STATE  ex  rel.  KOHLER  v.  CINCINNATI,  W.  &  B.  R.  CO.  47 

Ohio  St.   130,  23  N.  E.  928. 
Interstate  commerce. 

Cited  in  Lake  Shore  &  M.  S.  R,  Co.  v.  State,  8  Ohio  C.  C.  224,  holding  state  law 
requiring  at  least  three  passenger  trains  each  way  to  stop  at  all  places  of  over 
3,000  inhabitants  to  receive  and  let  off  passengers,  not  regulation  of  interstate 
commerce;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  State,  8  Ohio  C.  C.  224,  4  Ohio  C.  D. 
407,  sustaining  statute  requiring  three  trains  a  day  each  way  to  stop  in  citiea 
having  over  three  thousand  inhabitants  as  not  being  an  interference  with  inter- 
state commerce. 
Franchise  rig-lits. 

Cited  in  State  ex  rel.  Snyder  v.  Portland  Natural  Gas  &  Oil  Co.  153  Ind.  487,  53 
L.  R.  A.  415,  74  Am.  St.  Rep.  314,  53  N.  E.  1089,  holding  corporation  for  produc- 
tion of  oil  and  gas  may  forfeit  franchise  by  contract  with  competitor  fixing  prices 
and  binding  it  to  supply  latter's  customers;  State  ex  rel.  Hadley  v.  Delmar 
Jockey  Club,  200  Mo.  73,  98  S.  W.  539,  holding  agricultural  society  which  disused 
its  franchises  and  property  save  for  unlawful  racing  might  be  dissolved  and  fined. 

Cited  in  footnote  to  State  v.  Mt.  Hope  College  Co.  52  L.R.A.  365.  which  au- 
thorizes dissolution  of  education  institution  for  sale  of  diplomas  without  regard 
to  merit. 

Cited  in  note   (9  L.  R.  A.  37)   as  to  forfeiture  of  franchise. 
Oppressive   discrimination   by   carriers. 

Cited  in  Murray  v.  Chicago  &  N.  W.  R.  Co.  35  C.  C.  A.  66,  92  Fed.  872,  holding 
shipper  has  action  at  common  law  to  recover  freights  unjustly  discriminating 
against  him;  Logan  Coal  Co.  v.  Pennsylvania  R.  Co.  154  Fed.  504,  16  Pa.  Dist. 
R.  641.  holding  cars  of  a  coal  shipper  and  foreign  cars  used  by  it  should  be  reck- 
oned as  part  of  its  share  in  alloting  car  service;  Johnson  Coal  Min.  Co.  v.  Hock- 
ing Valley  Ry.  1  N.  P.  N.  S.  391,  14  Ohio  S.  &  C.  P.  Dec.  214,  holding  that  both 
at  common  law  and  under  the  statute  a  common  carrier  could  not  discriminate 
against  one  shipper  in  favor  of  another  and  equity  would  enjoin  such  discrim- 


1297  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  323 

illation;  Haring- Wilson  Coal  Co.  v.  Wheeling  &  L.  E.  Ry.  4  Ohio  L.  Rep.  655, 
holding  that  railroad  cannot  discriminate  in  allotment  of  cars  in  favor  of  shipper 
furnishing  cars;  State  v.  Union  Gas  &  Electric  Co.  13  Ohio  C.  C.  N.  S.  13,  holding 
that  discrimination  without  substantial  injury  is  legal:  State  v.  Central  Lumber 
Co.  24  S.  D.  167,  —  L.R.A.(N.S.)  — ,  123  X.  W.  503,  to  the  point  that  public  serv- 
ice corporation  cannot  discriminate  in  rates  to  different  persons  for  purpose  of 
getting  business;  Menominee  River  Boom  Co.  v.  Augustus  Spies  Lumber  &,  Cedar 
Co.  147  Wis.  569,  132  N.  W.  1118,  holding  that  charges  of  public  service  corpora- 
tion must  be  uniform  in  dealing  with  different  persons  under  similar  circum- 
stances. 

Cited  in  footnote  to  Central  of  Georgia  R.  Co.  v.  Augusta  Brokerage  Co.  69 
L.R.A.  119.  which  sustains  carrier's  right  to  discriminate  against  cotton  seed  by 
refusing  to  issue  through  bills  of  lading  or  to  furnish  cars  connecting  carriers  if 
all  shippers  of  such  commodity  are  treated  alike. 

Cited  in  notes  (18  L.R.A.  105)  as  to  right  of  carrier  at  common  law  to  dis- 
criminate between  passengers  or  shippers;  (5  Eng.  Rul.  Cas.  378)  on  discrimina- 
tion by  carrier  as  to  accepting  and  carrying  goods. 

Distinguished  in  Cleveland,  C.  C.  &  I.  R,  Co.  v.  Closser,  126  Ind.  353,  9  L.  R.  A. 
754,  3  Inters.  Com.  Rep.  391,  22  Am.  St.  Rep.  593,  26  N.  E.  159,  holding  mere 
fact  of  discrimination  will  not  invalidate  contract  with  carrier. 
Illegral   combinations  and   char&es. 

Cited  in  State  ex  rel.  Crow  v.  Armour  Packing  Co.  173  Mo.  393,  61  L.  R.  A. 
464,  96  Am.  St.  Rep.  515,  73  S.  W.  645,  imposing  fine  of  $5,000  upon  corporations 
guilty  of  entering  into  illegal  pool. 

Cited  in  note   (63  L.  R.  A.  762,  764)   on  quo  warranto  against  corporations  for 
making  illegal  charges  in  the  course  of  authorized  business. 
Rig-hts  of  owners  of  private  equipment. 

Cited  in  Procter  &  G.  Co.  v.  United  States,  188  Fed.  228,  upholding  rule  im- 
posing demurrage  charge  upon  privately  owned  tank  cars  standing  upon  private 
tracks  as  reasonable  regulation  to  avoid  delay  in  shipment  by  preventing  with- 
drawal of  proper  equipment  from  actual  service. 

7  L.  R.  A.  323,  SMITH  v.  GEORGIA  P.  R.  CO.  88  Ala.  538,  16  Am.  St.  Rep.  63, 

7  So.  119. 
Xegligrence  toward   passenger. 

Cited  in  St.  Louis  &  S.  W.  R.  Co.  v.  Johnson,  59  Ark.  130,  26  S.  W.  593,  hold- 
ing passenger  may  rely  upon  carrier's  invitation  to  alight  by  calling  station  and 
stopping  train  thereat,  at  night;  Alabama  G.  S.  R.  Co.  v.  Hill,  93  Ala.  521,  30 
Am.  St.  Rep.  65,  9  So.  722,  requiring  strict  diligence  of  carrier  in  providing  for 
safety  of  passengers;  Southern  R.  Co.  v.  Lollar,  135  Ala.  379,  33  So.  32,  holding 
passenger  entitled  to  recovery  for  injury  from  starting  train  while  he  is  alight- 
ing at  destination;  Smitson  v.  Southern  P.  R.  Co.  37  Or.  80,  60  Pac.  907,  holding 
passenger  may  recover  for  injury  in  attempting  to  alight  at  night  at  brakeman's 
suggestion,  by  train  started  after  stop  of  fifteen  seconds;  Midland  Valley  R.  Co. 
v.  Page,  182  Fed.  129,  holding  that  question  whether  stopping  of  train  after 
calling  station  before  reaching  platform  and  starting  it  suddenly  without  warn- 
ing to  passengers  is  question  for  jury;  Hunter  v.  Louisville  &  X.  R.  Co.  150  Ala. 
602,  9  L.R.A.(X.S.)  851,  43  So.  802,  holding  it  contributory  negligence  in  passen- 
ger who  undertook  to  alight  after  calculating  speed  and  in  place  with  which  he 
was  familiar:  McMelon  v.  Illinois  C.  R.  Co.  126  La.  610,  52  So.  783,  holding  that 
carrier  was  not  liable  for  injury  to  passenger  who  fell  from  train  in  night  time 
while  attempting  to  alight  where  train  made  slight  stop  before  reaching  platform, 
L.R.A.  Au.  Vol.  I.— 82. 


7  L.R.A.  323]  L.  R.  A.  CASES  AS  AUTHORITIES.  1298 

where  she  acted  hastily  and  was  familiar  with  station;  Farrell  v.  Great  Northern 
R.  Co.  (Farrell  v.  Chicago  G.  W.  R.  Co.)  100  Minn.  364,  9  L.R.A.(N.S.)  1115, 
111  N.  W.  388,  holding  it  contributory  negligence  to  alight  after  a  call  of  the 
station  at  a  place  which  is  obviously  not  a  proper  stopping  place. 

Cited  in  notes  (8  L.  R.  A.  674)  as  to  carrier's  duty  to  use  care  for  safety  of 
passengers;  (15  L.R.A.  348)  as  to  announcement  of  stations  by  carriers;  (2 
L.R.A.(N.S.)  116)  on  assumption  of  passenger  that  car  will  stop  at  proper  place 
for  alighting. 

Distinguished  in  Richmond  &  D.  R.  Co.  v.  Smith,  92  Ala.  238,  9  So.  223,  hold- 
ing carrier  liable  for  injuries  to  passenger  in  alighting  at  5  o'clock  on  dark  morn- 
ing when,  after  station  twice  called,  train  stopped  75  feet  from  station;  St.  Louis, 
I.  M.  &  S.  R.  Co.  v.  Farr,  70  Ark.  271,  08  So.  243,  allowing  recovery  for  injury  to 
passenger  alighting  when  train  stopped  after  station  called,  where  surroundings 
give  no  warning  that  station  not  reached. 

7  L.  R.  A.  325,  JONES  v.  STATE,  28  Neb.  495,  44  N.  W.  658. 
Expulsion   of  members   l>y   church   society. 

Cited  in  Von  Hoven  v.  Immanuel  Presby.  Church,  108  La.  276,  32  So.  389,  hold- 
ing ex  parte  proceedings  to  get  rid  of  members  of  a  church  society,  void;  Hatfield 
v.  De  Long,  156  Ind.  211,  51  L.  R.  A.  753,  83  Am.  St.  Rep.  194,  59  N.  E.  483, 
holding  courts  may  enjoin  church  tribunal  from  expelling  member  in  violation  of 
laws  of  the  church;  Federal  L.  Ins.  Co.  v.  Risinger,  46  Ind.  App.  148,  91  N.  E. 
533,  to  the  point  that  party  cannot  be  deprived  of  right  without  opportunity 
afforded  him  to  defend  or  protect  such  right. 

Cited  in  notes  (15  L.  R.  A.  801)  on  civil  power  to  review  excommunication  of 
church  member;  (49  L.  R.  A.  396)  as  to  conclusiveness  of  decisions  of  tribunals 
of  associations  or  corporations,  as  to  regularity  of  procedure;  (4  L.R.A. (N.S.) 
1155)  on  review  by  civil  courts  of  expulsion  of  member  of  religious  society;  (18 
Am.  St.  Rep.  301)  on  redress  against  proceedings  in  lodges,  churches,  and  other 
voluntary  associations;  (100  Am.  St.  Rep.  739)  on  jurisdiction  of  civil  courts  over 
church  controversies. 

7  L.  R,  A.  327,  HENDERSON  v.  REYNOLDS,  84  Ga.  159,  10  S.  E.  734. 
Coercion  of  verdict. 

Cited  in  Auld  v.  Cathro,  20  N.  D.  477,  32  L.R.A.  (N.S.)  82,  128  N.  W.  1025, 
to  the  point  that  old  idea  of  starving  jury,  to  coerce  verdict,  has  passed  away. 

Cited  in  note  (105  Am.  St.  Rep.  579)  on  urging  or  coercing  verdict. 
Validity  of  verdict  on  Sunday. 

Cited  in  Bernstein  v.  Myers,  99  Ga.  90,  24  S.  E.  854,  holding  that  verdict  may 
be  made  up  and  returned  on  Sunday,  where  jury  sent  out  before;  Weaver  v.  Car- 
ter, 101  Ga.  207,  28  So.  869,  holding  court  may  receive  verdict  on  Sunday;  State 
v.  Atkinson,  104  La.  572.  29  So.  279,  holding  verdict  may  be  returned  morning  of 
Thanksgiving  day;  Rawlins  v.  State,  124  Ga.  58,  52  S.  E.  1,  holding  verdict  in 
criminal  case  receivable  on  Sunday. 

Cited  in  footnotes  to  Sullivan  v.  Maine  C.  R.  Co.  8  L.  R.  A.  427,  which  holds 
riding  for  exercise  on  Sunday  not  violation  of  statute;  Porter  v.  Pierce,  7  L.  R.  A. 
847,  which  excludes  Sunday  in  determining  time  to  redeem. 
Standard  of   time. 

Cited  in  Ex  parte  Parker,  35  Tex.  Crim.  Rep.  15,  29  S.  W.  480,  holding  sun 
time  the  standard  of  time  for  courts;  Jones  v.  Gterman  Ins.  Co.  110  Iowa,  78,  46 
L.  R.  A.  861,  81  N.  W.  188,  holding  sun  time  determines  hour  of  expiration  of 
insurance;  Texas  Tram  &  Lumber  Co.  v.  Hightower,  100  Tex.  130,  6  L.R.A. 


1299  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  330 

(N.S.)  1048,  123  Am.  St.  Rep.  794,  96  S.  W.  1071,  holding  solar  time  and  not 
standard  or  railroad  time,  should  be  used  by  courts  in  their  affairs  though  the 
community  has  generally  adopted  standard  time;  Salt  Lake  City  v.  Robinson, 
-  Utah,  — ,  35  L.R.A.  (N.S.)  615,  116  Pac.  442,  holding  that  hour  for  closing 
saloons  under  municipal  ordinance  must  be  determined  by  standard,  not  solar, 
time. 

Cited  in  notes  (78  Am.  St.  Rep.  386)  on  computation  of  time;  (1  L.R.A. (X.S.) 
365)  on  intention  of  parties  to  contract  to  adopt  standard  instead  of  sun  time. 

Distinguished  in  Globe  &  R.  F.  Ins.  Co.  v.  David  Moffat  Co.  83  C.  C.  A.  91, 
154  Fed.  20,  holding  it  matter  of  fact  what  time  standard  was  to  be  taken  on  a 
foreign  policy  of  insurance;  Orvik  v.  Casselman,  15  N.  D.  37,  105  N.  W.  1105, 
holding  "standard"  or  "railroad"  the  system  in  use  in  North  Dakota  and  judicially 
known. 

7  L.  R.  A.  330,  STATE  ex  rel.  WEISS  v.  DISTRICT  BOARD,  76  Wis.  177,  20  Am. 

St.  Rep.  41,  44  N.  W.  967. 
Judicial    notice. 

Cited  in  North  Hempstead  v.  Gregory,  53  App.  Div.  354,  65  N.  Y.  Supp.  867, 
holding  court  will  take  judicial  notice  of  contents  of  Bible.;  Pfeiffer  v.  Board  of 
Education,  118  Mich.  560,  42  L.  R.  A.  541,  77  N.  W.  250,  holding  courts  will  ju- 
dicially notice  custom  of  opening  schools  with  selections  from  Bible  and  other  de- 
votional exercises;  Hilton  v.  Roylance,  25  Utah,  144,  58  L.  R,  A.  729,  95  Am.  St. 
Rep.  821,  69  Pac.  660,  holding  court  will  take  judicial  notice  of  meaning  of 
"sealed"  and  "sealing  ordinance"  as  used  in  Mormon  church. 
Sectarian  instruction. 

Cited  in  Hysong  v.  School  District,  164  Pa.  642,  26  L.  R.  A.  206,  44  Am.  St. 
Rep.  632,  30  Atl.  482,  to  point  that  the  principles  of  Christian  morality  are  not 
excluded  from  public  schools  but  only  sectarian  instruction ;  Stevenson  v.  Hanyon, 
9  Kulp,  266,  4  Lack.  Legal  News,  226,  7  Pa.  Dist.  R.  591,  holding  reading  of  Bible 
in  public  schools  not  sectarian  instruction,  and  not  unconstitutional ;  State  ex 
rel.  Jones  v.  Froehlich,  115  Wis.  42,  58  L.  R.  A.  764,  95  Am.  St.  Rep.  894,  91  N. 
W.  115,  holding  value  of  laws  will  not  justify  their  enactment  in  violation  of 
constitutional  provisions. 

Cited  in  footnote  to  Billard  v.  Topeka  Board  of  Education,  66  L.R.A.  166,  which 
holds  public  school  teacher  not  conducting  form  of  religious  worship  or  teaching 
sectarian  or  religious  doctrine  by  repeating  Lord's  Prayer  and  Twenty-Third 
Psalm  as  morning  exercise  without  comment  or  remark  in  which  none  of  pupils 
are  required  to  participate. 

Cited  in  notes  (14  L.R.A.  419)  on  public  aid  to  sectarian  institution;  (105 
Am.  St.  Rep.  154,  157;  (16  L.R.A. (N.S.)  862)  on  religious  exercises  or  instruc- 
tion in  public  schools. 

Distinguished  in  North  v.  University  of  Illinois,  137  111.  307,  27  N.  E.  54,  hold- 
ing rule  requiring  students  of  university  to  attend  chapel  unless  excused  not  un- 
constitutional or  unreasonable. 
Reading;   Bible   in   school. 

Cited  in  State  ex  rel.  Freeman  v.  Scheve,  65  Neb.  871,  59  L.  R.  A.  930,  footnote 
p.  927,  91  N.  W.  846,  holding  Bible  reading,  hymn  singing,  and  prayer  in  public 
schools  forbidden  by  Constitution;  People  ex  rel.  Ring  v.  Board  of  Education, 
245  111.  350,  29  L.R.A. (N.S.)  448,  92  N.  E.  251,  holding  the  reading  of  the  Bible 
in  the  public  schools  constitutes  the  giving  of  sectarian  instruction  within  the 
meaning  of  the  Constitution. 


7  L.R.A.  330]  L.  R.  A.  CASES  AS  AUTHORITIES.  1300 

Cited  in  footnote  to  Hackett  v.  Brooksville  School  District,  69  L.R.A.  592, 
which  sustains  right  to  read  King  James  version  of  Bible  in  schools. 

Cited  in  note  (36  L.  R.  A.  278)  on  adoption  of  text-books  for  public  schools. 

Disapproved  in  Pfeiffer  v.  Board  of  Education,  118  Mich.  569,  42  L.  R.  A.  539, 
77  N.  W.  250,  holding  reading  extracts  from  Bible  without  comment,  in  public 
schools,  constitutional;  Hackett  v.  Brookville  Graded  School  Dist.  120  Ky.  626, 
69  L.R.A.  597,  117  Am.  St.  Rep.  599,  87  S.  W.  792,  9  A.  &  E.  Ann.  Cas.  36,  holding 
the  King  James  translation  of  the  Bible,  not  within  meaning  of  statute  forbidding 
sectarian  instruction  in  schools. 
Practical  construction  of  statute. 

Cited  in  Travelers'  Ins.  Co.  v.  Fricke,  94  Wis.  266,  68  N.  W.  958,  holding  there 
is  no  room  for  practical  construction  unless  statute  is  doubtful;  State  ex  rel. 
Lamb  v.  Cunningham, '83  Wis.  142,  17  L.  R.  A.  168,  35  Am.  St.  Rep.  27,  53  N.  W. 
35,  holding  former  acts  immaterial  in  construing  constitutionality  of  later  stat- 
ute unless  language  of  Constitution  is  doubtful  and  a  long-continued  legislative 
construction  has  been  given  to  it;  State  v.  Chicago  &  N.  W.  R.  Co.  128  Wis. 
519,  108  N.  W.  594,  holding  where  the  literal  sense  of  a  statute,  if  adopted  as  the 
legislative  meaning  would  lead  to  some  absurd  result,  or  shock  the  ordinary 
sense  of  justice,  it  is  to  be  rejected  if  some  other  meaning  which  is  reasonable 
can  be  readily  read  therefrom  by  aid  of  any  rule  of  judicial  construction; 
Kingsley  v.  Merrill,  122  Wis.  192,  67  L.R.A.  203,  99  N.  W.  1044,  2  A.  &  E.  Ann. 
Cas.  748,  holding  long  and  uniform  sanction  by  law  revisers  and  law  makers  as 
to  construction  of  constitution  entitled  to  no  weight  if  statutes  in  question  are 
in  conflict  with  plain  meaning  of  constitution. 
Qualification  of  witness. 

Cited  in  note  (42  L.  R.  A.  566)  on  religious  belief  as  qualification  of  witness. 
Pleading-. 

Cited  in  Elmergreen  v.  Weimer,  138  Wis.  117,  119  N.  W.  836,  holding  conclu- 
sions of  law  in  pleadings  and  not  admitted  by  demurrer. 

7  L.  R.  A.  344,  VIRGINIA  MIDLAND  R.  CO.  v.  WASHINGTON,  86  Va.  629,  10 

S.  E.  927. 
Liability  of  lessor  or  lessee  of  railroad   for  other's   negligence. 

Cited  in  Murray  v.  Lehigh  Valley  R.  Co.  66  Conn.  520,  32  L.  R.  A.  540,  34  Atl. 
506,  holding  railroad  operating  train  on  leased  track  subject  to  orders  of  latter's 
servants,  liable  for  their  negligence;  Arrowsmith  v.  Nashville  &  D.  R.  Co.  57  Fed. 
179,  holding  authorized  lessor  railroad  company  not  liable  for  injury  to  mail  clerk 
from  crane  erected  under  lessee's  permission ;  Buckner  v.  Richmond  &  D.  R.  Co. 
72  Miss.  880,  18  So.  449,  holding  authorized  lessor  railroad  company  not  liable 
for  injury  from  defective  appliance  leased;  Hurlbut  v.  Wabash  R.  Co.  130  Mo. 
665,  31  S.  W.  1051,  holding  railway  hiring  employees  and  furnishing  engines  used 
on  connecting  lines,  liable  to  employee  for  injury  while  on  other  line  due  to  defect 
in  engine;  McCabe  v.  Maysville  &  B.  S.  R.  Co.  112  Ky.  875,  66  S.  W.  1054,  holding 
lessor  railroad  liable  for  negligence  of  lessee  in  killing  pedestrian ;  Chicago  &  G. 
T.  R,  Co.  v.  Hart,  209  111.  425,  66  L.  R.  A.  81,  70  N.  E.  654  (dissenting  opinion), 
majority  holding  lessor  road  liable  for  negligent  injury  by  lessee  of  employee  of 
latter;  Muntz  v.  Algiers  &  G.  R.  Co.  Ill  La.  427,  64  L.  R,  A.  225,  35  So.  624, 
holding  lessor  road  liable  for  injury  due  to  negligence  of  lessee;  Empire  Trust 
Co.  v.  Egypt  R.  Co.  182  Fed.  108,  to  the  point  that  lessor  of  railroad  is  not 
liable  for  injury  to  servant  of  lessee  in  operating  road;  Swice  v.  Maysville  & 
B.  S.  R.  Co.  116  Ky.  256,  75  S.  W.  278,  on  liability  of  lessee  of  railroad  to  serv- 


1301  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  352 

ants;   Moorshead  v.  United  R.  Co.  119  Mo.  App.  633,  96  S.  W.  261   (dissenting 
opinion),  as  to  liability  of  lessor  company  for  negligence  of  lessee  company. 

Cited  in  footnote  to  Harden  v.  North  Carolina  R.  Co.  55  L.  R.  A.  784,  which 
denies  power  of  lessor  of  railroad  to  exempt  itself  from  liability  to  employees  of 
lessee. 

Cited  in  notes  (37  L.  R,  A.  83)  as  to  which  of  two  or  more  persons  is  the  mas- 
ter of  another  who  is  conceded  to  be  the  servant  of  one  of  them;    (44  L.  R,  A. 
745)   as  to  liability  of  lessor  of  railroad  for  injuries  caused  by  negligence  of  an- 
other company  using  the  road  under  a  lease,  license,  or  other  contract. 
Lease  of  property  as  avoiding;  public  duty. 

Cited  in  Ryerson  v.  Morris  Canal  &  Bkg.  Co.  71  X.  J.  L.  384,  59  Atl.  29,  2  A. 

6  E.  Ann.  Cas.  859,  holding  where  a  public  duty  is  imposed  upon  a  corporation 
by  its  charter,  it  cannot  relieve  itself  of  that  duty  by  leasing  its  property  and 
franchises  under  a  general  legislative  authority  to  lease. 

Cited  in  note  (66  L.R.A.  142)  on  escape  from  duties  by  lease  of  railroad. 

7  L.  R.  A.  348,  PEOPLE  ex  rel.  MORGAN  v.  HAYNE,  83  Cal.  Ill,  17  Am.  St. 

Rep.  217,  23  Pac.  1. 

Cited  in  Butler  v.  Gage,  138  U.  S.  60,  34  L.  ed,  872,  11  Sup.  Ct.  Rep.  235, 
in  stating  a  question  presented  as  a  jurisdictional  federal  question. 
Encroachment   upon  judicial  powers. 

Cited  in  State  v.  Le  Clair,  86  Me.  532,  30  Atl.  7,  holding  act  investing  clerk  of 
municipal  court  with  authority  to  hear  complaints  and  issue  warrants  no  en- 
croachment upon  judicial  power;  De  Votie  v.  McGerr,  14  Colo.  581,  23  Pac.  980, 
raising  without  passing  upon  question  of  constitutionality  of  act  providing  for 
supreme  court  commission;  Huneke  v.  Huneke,  12  Cal.  App.  205,  107  Pac.  131, 
holding  order  of  court  providing  in  terms  that  the  report  of  referees  should 
have  no  efficacy  until  acted  upon  by  court,  did  not  vest  judicial  power  in 
referees;  Kaiser  Land  &  Fruit  Co.  v.  Curry,  155  Cal.  657,  103  Pac.  341,  holding 
statute  making  it  the  duty  of  the  secretary  of  state  to  report  to  governor  the  list 
of  corporations  delinquent  in  payment  of  taxes  is  not  unconstitutional  on  ground 
that  secretary  of  state  is  given  authority  to  determine  what  corporations  are  ex- 
exempt  under  statute,  such  determination  of  secretary  not  being  binding  upon 
any  corporation. 

Cited  in  footnote  to  Herndon  v.  Imperial  Fire  Ins.  Co.  18  L.  R.  A.  547,  which 
denies  legislative  power  to  give  right  to  rehearing  contrary  to  court  rule. 
Construction  of  statutes. 

Cited  in  Tucker  v.  Barnum,  144  Cal.  271,  77  Pac.  919  (dissenting  opinion)  as 
to  construction  which  renders  statute  constitutional  being  favored;  Re  Spenser, 
149  Cal.  402,  117  Am.  St.  Rep.  137,  86  Pac.  896,  9  A.  &  E.  Ann.  Cas.  1105; 
Re  Finley,  1  Cal.  App.  200,  81  Pac.  1041, — holding  every  doubt  must  be  resolved 
in  favor  of  validity  of  statute;  Brookings  County  v.  Murphy,  23  S.  D.  322,  121 
N.  W.  793,  holding  that  it  is  duty  of  court  to  adopt  that  construction  which  will 
give  effect  to  statute  when  conflict  between  it  and  constitution  is  not  clear. 

7  L.  R.  A.  352,  CITIZENS  STREET  R.  CO.  v.  TWINAME,  121  Ind.  375,  23  N. 

E.  159. 
Action  to  recover  for  loss  of  services. 

Cited  in  Hensley  v.  Tuttle,  17  Ind.  App.  255,  46  N.  E.  594,  holding  husband 
entitled  to  recover  for  joint  services  of  himself  and  wife  in  nursing  and  caring  for 
decedent;  Bloomington  v.  Rogers.  13  Ind.  App.  124,  4]  N.  E.  395,  holding  married 
woman  not  supported  by  husband  and  doing  business  on  own  account  can  recover 


7  L.R.A.  352]  L.  R.  A.  CASES  AS  AUTHORITIES.  1302 

value  of  own  services;  Tipton  County  v.  Brown,  4  Ind.  App.  292,  30  N.  E.  925, 
holding  husband  entitled  to  wife's  services  in  household  work;  Louisville,  N.  A. 

6  C.  R.  Co.  v.  Rush,  127  Ind.  548,  26  X.  E.  1010,  holding  condition  of  one's  family 
may  be  considered   in  estimating  father's  damages  for  loss  of  child's   services; 
Kirkpatrick  v.  Metropolitan   Street  R.   Co.   129  Mo.   App.  533,   107   S.   W.   1025 
(dissenting  opinion);   Kennedy  v.   Swisher,  34  Ind.  App.  679,  73  N.  E.  724, — 
as  to  right  of  husband  to  recover  for  loss  of  services  of  wife  in  his  business; 
Georgia  R.  A  Bkg.  Co.  v.  Tice,  124  Ga.  469,  52  S.  E.  916,  4  A.  &  E.  Ann.  Cas. 
200;   Standen  v.  Pennsylvania  R.  Co.  214  Pa.  200,  63  Atl.  467,  6  A.  &  E.  Ann. 
Cas.  408, — holding  husband  may  recover  for  loss  of  wife's  services  to  him  in  his 
business  given  voluntarily;  Libaire  v.  Minneapolis  &  St.  L.  R.  Co.  113  Minn.  523, 
130  N.  W.  8,  holding  that  married  woman  may   recover  in  her  own  name  for 
injuries  to  her  person,  including  damages  for  loss  of  earning  capacity  as  singer. 

Cited  in  footnote  to  Harmon  v.  Old  Colony  R.  Co.  30  L.  R,  A.  658,  which  holds 
impairment  of  capacity  to  labor  element  of  damages  for  injury  to  married  wroman. 

Cited  in  notes  (28  Am.  St.  Rep.  80)  on  measure  of  damages  for  injury  to  wife: 
(33  L.R.A.  (N.S.)   1043)   on  right  to  recover  for  loss  of  consortium  through  per- 
sonal injury  to  wife. 
Liability   of  husband   for   tort  of   wife. 

Cited  in  Radke  v.  Schlundt,  30  Ind.  App.  222,  65  N.  E.  770,  holding  husband 
not  liable  for  injury  caused  by  negligence  of  wife  while  selling  or  delivering  prod- 
uce raised  on  his  farm. 

7  L.  R.  A.  354,  RICKETTS  v.  CHESAPEAKE  &  0.  R.  CO.  33  Wa.  Va.  433,  25 

Am.  St.  Rep.  901,  10  "S.  E.  801. 
Lease   of   railroad. 

Cited  in  Fisher  v.  West  Virginia  &  P.  R.  Co.  39  W.  Va.  370,  23  L.  R,  A.  759,  19 
S.  E.  578,  holding  railroad  cannot  turn  over  its  road  to  another  company  and 
by  lease  or  contract  exempt  itself  from  responsibility  for  management  of  road. 

Cited  in  footnote  to  Van  Steuben  v.  Central  R.  Co.  34  L.  R.  A.  577,  which  holds 
unauthorized  lease  of  railroad,  void. 

Cited  in  notes   (44  L.  R.  A.  742)   as  to  company's  authority  to  lease  railroad: 
(52  L.  R,  A.  371)  necessity  of  legislative  permission  to  consolidate. 
Liability  of  lessor  and  lessee  of  railroad. 

Cited  in  Moundsville  v.  Ohio  River  R.  Co.  37  W.  Va.  99,  20  L.  R.  A.  167,  16  S. 
E.  514,  to  point  that  railroad  company's  duty  to  restore  streets  which  it 
crosses  rests  on  successor  by  lease,  assignment,  or  consolidation;  Chesapeake  &  0. 
R.  Co.  v.  Howard,  14  App.  D.  C.  284,  holding  lessee  liable  for  injury  on  leased 
road  though  lease  was  ultra  vires;  Hollins  v.  New  Orleans  &  N.  W.  R.  Co.  119 
La.  422,  44  So.  159,  holding  both  liable  where  one  operated  train  on  other's 
track. 

Cited  in  notea  (37  L.  R.  A.  85)  as  to  liability  of  lessor  of  railroad  while  lessee 
is  in  possession;  (44  L.  R.  A.  739,  740)  as  to  liability  of  lessor  of  railroad  for 
negligence  of  lessee;  (66  L.R.A.  144)  on  effect  of  lease  on  liability  of  railroad: 
(58  Am.  St.  Rep.  148)  on  liability  of  lessor  of  railroad  to  third  persons. 

Distinguished  in  Arrowsmith  v.  Nashville  &  D.  R.  Co.  57  Fed.  173,  holding  au- 
thorized lease  without  exemption  clause  absolves  lessor  from  torts  of  lessee  result- 
ing from  negligent  operation  of  road. 
Reading-  from   reported  cases  to  jnry. 

Cited  in  State  v.  Wait.  44  Kan.  323.  24  Pac.  354,  holding  reading  to  jury  from 
opinion  of  Supreme  Court  in  another  case,  not  permissible:  Le  Comte  v.  Fresh- 


]303  L.  R.  A.  GASES  AS  AUTHORITIES.  [7  L.R.A.  354 

water,  57  W.  Va.  339,  49  S.  E.  238,  condemning  the  reading  of  reports  to  the 
jury  as  a  dangerous  practice. 

Distinguished  in  Gregory  v.  Ohio  River  R,  Co.  37  W.  Va.  623,  16  S.  E.  819, 
holding  counsel  may  read  from  report«d  cases  if  law  read  is  correct  and  relevant. 
Exemplary  or  punitive  damages. 

Cited  in  Mayer  v.  Frobe,  40  W.  Va.  262,  22  S.  E.  58,  holding  exemplary  dam- 
ages may  be  assessed  upon  wrongdoer  by  way  of  punishment  in  civil  suit;  Turner 
v.  Norfolk  &  W.  R,  Co.  40  W.  Va.  688,  22  S.  E.  83,  holding  exemplary  damages 
recoverable  within  statutory  limit  against  railroad  company  for  death  of  employee 
due  to  its  negligence;  Gillingham  v.  Ohio  River  R.  Co.  35  W.  Va.  604,  14  L.  R, 
A.  804,  29  Am.  St.  Rep.  827,  14  S.  E.  243,  holding  one  falsely  imprisoned  by 
railway  conductor  may  recover  exemplary  damages  restricted  to  what  would  be 
a  fair  and  just  compensation ;  Talbott  v.  West  Virginia  C.  &  P.  R.  Co.  42  W.  Va. 
563,  26  S.  E.  311,  to  point  that  exemplary  damages  not  recoverable  against  rail- 
road company  for  wanton  and  malicious  act  of  servant  unless  expressly  or  im- 
pliedly  authorized  or  ratified;  Donivan  v.  Manhattan  R.  Co.  1  Misc.  371,  21  N. 
Y.  Supp.  457,  holding  punitive  damages  not  recoverable  for  wilful  injury  by  serv- 
ant unless  master  authorizes  or  ratifies  the  act;  Claiborne  v.  Chesapeake  &  O.  R. 
Co.  46  W.  Va.  366,  33  S.  E.  262,  holding  master  not  liable  in  punitive  damages 
for  injury  due  to  malicious  act  of  servant  unless  he  authorized  or  ratified  it; 
Couch  v.  Chesapeake  &  O.  R.  Co.  45  W.  Va.  56,  30  S.  E.  147  (divided  court),  to 
proposition  that  doctrine  as  to  punitive  damages  is  same  whether  death  ensues  aa 
result  of  the  negligent  act  or  not ;  Turner  v.  Norfolk  &  W.  R.  Co.  40  W.  Va.  693, 
22  S.  E.  83,  as  to  circumstances  'under  which  corporations  are  liable  to  infliction 
of  punitive  damages;  Scott  v.  Chesapeake  &  O.  R,  Co.  43  W.  Va.  490,  27  S.  E.  211 
(dissenting  opinion),  majority  holding  that  punitive  damages  can  be  awarded 
against  a  corporation;  Davis  v.  Chesapeake  &  0.  R.  Co.  61  W.  Va.  253,  9  L.R.A. 
(N.S.)  997,  56  S.  E.  400,  holding  where  a  railroad  company  is  liable  for  the  act 
of  its  train  conductor  in  unlawfully  arresting  and  imprisoning  a  person  on  the 
train  and  such  act  is  malicious,  wanton,  wilful  or  reckless  the  company  is  lia- 
ble for  exemplary  damages;  Thomas  v.  Wheeling  Electrical  Co.  54  W.  Va.  404, 
46  S.  E.  217,  as  to  liability  of  corporation  for  exemplary  damages;  Teel  v.  Coal  & 
Coke  Co.  66  W.  Va.  316,  66  S.  E.  470,  to  the  point  that  exemplary  damages  can- 
not be  given  against  railroad  on  account  of  injury  caused  by  servant. 

Cited  in  notes  (4  L.R.A. (N.S.)  507)  on  punitive  damages  for  malicious  act  of 
servant  when  master  owes  special  duty  to  party  injured;  (59  Am.  St.  Rep.  603) 
on  exemplary  damages  against  corporations;  (37  L.  ed.  U.  S.  98)  on  liability  of 
railroad  or  other  corporation  for  punitive  or  exemplary  damages;  (28  Am.  St. 
Rep.  876;  8  Eng.  Rul.  Cas.  381)  on  right  to  punitive  damages. 
Liability  of  carrier  for  assault  by  employee. 

Cited  in  Layne  v.  Chesapeake  &  0.  R.  Co.  66  W.  Va.  618,  67  S.  E.  1103,  holding 
that  carrier  of  passengers  is  under  contractual  duty  to  protect  them  from  wilful 
and  unlawful  injury  by  servants. 

Cited  in  notes   (14  L.R.A.  738)   on  liability  of  carrier  for  assault  on  passenger 
by  employee  during  transportation;    (25  Eng.  Rul.  Cas.  142)   on  liability  of  rail- 
road  for   assault   by   employee   in   ejecting   passenger;     (40   L.R.A.  (N.S. )    1045, 
1053)  on  liability  of  carrier  for  wilful  torts  of  servants  to  passengers. 
Mental  suffering:  us  element  of  damagea. 

Cited  in  Duckworth  v.  Stalnaker,  68  W.  Va.  206,  69  S.  E.  850,  holding  that 
mental  suffering  may  be  considered  by  jury  in  augmentation  of  damages  where 
actual  damages  are  shown  in  action  under  Civil  Damage  Act. 


7  L.R.A.  357]  L.  R.  A.  CASES  AS  AUTHORITIES.  1304 

7  L.  R.  A.  357,  DETWILLER  v.  COM.  131  Pa.  614,  18  Atl.  990,  992. 
Eligibility   of    directors    or    stockholders. 

Cited  in  Com.  ex  rel.  Lauffer  v.  Stevenson,  200  Pa.  510,  50  Atl.  91,  to  point  that 
president  of  board  of  directors  cannot  decide  as  to  eligibility  of  directors  and 
fill  vacancy  thus  created. 

Cited  in  notes    (24  L.  R.  A.  252)    on  right  of  nonresidents  to  become  stock- 
holders;   (46  L.  R.  A.  620)   on  charter  restrictions  on  eligibility  to  become  share- 
holder;  (23  L.R.A.  (N.S.)  1294)  on  power  of  directors  to  remove  appointee  who  is 
one  of  the  class  of  officers  to  whom  management  is  confided. 
Voting  by  proxy. 

Cited  in  Walker  v.  Johnson,  17  App.  D.  C.  163,  holding  trading  corporation  has 
implied  power  to  enact  by-law  conferring  right  to  vote  by  proxy;  McKee  v.  Home 
Sav.  &  T.  Co.  122  Iowa,  736,  98  N.  W.  609,  holding  voting  on  question  of  liquida- 
tion not  authorized  by  general  proxy;  Worth  Mfg.  Co.  v.  Bingham,  54  C.  C.  A. 
125,  116  Fed.  791,  holding  voting  by  proxy  under  provision  of  charter,  legal. 

Cited  in  note   (29  L.  R.  A.  845)   on  right  to  vote  by  proxy  in  private  corpora- 
tions. 
Aliens'  rights. 

Cited  in  Cooke  v.  Doron,  215  Pa.  398,  7  L.R.A.  (N.S.)  662,  64  Atl.  595,  7  A.  & 
E.  Ann.  Gas.  502,  holding  an  alien  husband  entitled  as  tenant  by  curtesy  under 
statute  entitling  him  to  inherit  or  succeed  to  estates. 

7  L.  R.  A.  360,  COM.  ex  rel.  ROBINSON  v.  HEMINGWAY,  131  Pa.  636,  18  Atl. 

990,  992. 
Ownership  of  stock  by   foreign   corporation. 

Cited  in  Shepp  v.  Schuylkill  Valley  Traction  Co.  17  Montg.  Co.  L.  Rep.  60,  hold- 
ing foreign  corporation  which  owns  and  votes  upon  stock  of  Pennsylvania  corpo- 
ration does  not  thereby  assume  possession  and  control  of  the  latter. 
Alien    widow's   right   to   dower. 

Cited  in  Ondis  v.  Banta,  7  Kulp,  391,  holding  alien  widow  entitled  to  dower  in 
lands  of  alien  husband. 

7  L.  R.  A.  361,  Re  CHAUNCEY,  119  N.  Y.  77,  23  N.  E.  448. 
Abatement  of  legacy. 

Cited  in  Re  Hinman,  32  Misc.  538,  67  N.  Y.  Supp.  459,  holding  legacy  for  the 
support  of  a  brother  during  life  abates  with  other  general  legacies. 
Making  up  deficiency  from  surplus. 

Cited  in  Spencer  v.  Spencer,  38  App.  Div.  410,  56  N.  Y.  Supp.  460,  holding 
deficiency  in  any  year  of  amount  of  income  provided  by  will  should  be  made  good 
out  of  surplus  of  succeeding  years;  Marfield  v.  McCurdy,  25  App.  D.  C.  353, 
holding  alien  a  will  provides  that  out  of  the  income  generally  of  the  estate  the 
executor  shall  receive  compensation  at  the  rate  of  so  much  a  year  in  lieu  of  com- 
missions, if  the  income  is  less  in  one  year  and  greater  in  another  the  deficiency 
of  compensation  in  one  year  may  be  made  up  by  the  excesses  in  other  years. 

Distinguished  in  Comstock  v.  Comstock,  78  Conn.  613,  63  Atl.  449,  holding 
where  annuities  are  directed  to  be  paid  out  of  annual  or  semi  annual  income  and 
annuity  was  not  charged  on  net  income  of  trust  fund  generally  a  deficiency  for 
one  year  could  not  be  made  up  out  on  an  income  of  another  year. 

7  L.  R.  A.  363,  STREISSGUTH  v.  NATIONAL  GERMAN- AMERICAN  BANK, 

43  Minn.  50,  19  Am.  St.  Rep.  213,  44  N.  W.  797. 
Liability  for  default  of  audit. 

Cited  in  Ft.  Dearborn  Nat.  Bank  v.  Security  Bank,  87  Minn.  84,  91  N.  W.  257, 


1305  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  367 

holding  bank  which  transmits  check  to  another  for  collection  makes  latter  bank 
its  agent  and  is  liable  for  its  neglect;  Bailie  v.  Augusta  Sav.  Bank,  95  Ga.  282, 
51  Am.  St.  Rep.  74,  21  S.  E.  717,  holding  bank  liable  for  negligent  failure  of  its 
correspondent  to  collect;  Commercial  Bank  v.  Red  River  Valley  Nat.  Bank,  8  N.  D. 
387,  79  N.  W.  859,  holding  under  Dak.  Code  subagent  bank  not  responsible  to 
principal  for  negligent  failure  to  collect  but  that  agent  may  sue ;  Johnson  v.  Dun, 
75  Minn.  538,  78  N.  W.  98,  holding  mercantile  agency  accepting  notes  for  collec- 
tion without  limitation  as  to  liability,  responsible  for  wrongful  acts  of  its  attor- 
ney; Irwin  v.  Reeves  Pulley  Co.  20  Ind.  App.  128,  48  N.  E.  601  (dissenting  opin- 
ion) to  point  correspondent  bank  agent  of  home  bank,  majority  holding  latter 
liable  only  if  negligent  in  selecting  correspondent:  Brown  v.  People's  Bank,  59 
Fla.  165,  —  L.R.A.(N.S.)  — ,  52  So.  719,  holding  that  bank  in  which  check  is 
deposited  for  collection  is  liable  for  amount  where  bank  to  which  it  sends  check 
for  collection  fails  to  remit  after  check  is  paid. 

Cited  in  footnotes  to  Wilson  v.  Carlinville  Nat.  Bank,  52  L.  R.  A.  632,  which 
holds  depositor  of  check  for  collection  estopped  to  object  sending  check  directly 
to  drawee  bank  in  accordance  with  custom  known  to  him;  Second  Nat.  Bank  v. 
Merchants'  Nat.  Bank,  55  L.  R.  A.  273,  which  holds  bank  negligent  in  sending 
note  for  collection  to  bank  whose  cashier  is  treasurer  of  corporation  maker  with- 
out hearing  from  similar  note  previously  sent. 

Cited  in  notes  (38  Am.  St.  Rep.  777)  on  care  required  of  bankers  acting  as 
agents  or  bailees;  (37  L.  ed.  U.  S.  364)  on  liability  of  bank  for  collections. 

7  L.  R.  A.  365,  LEAVITT  v.  GOODWIN,  79  Iowa,  348,  44  N.  W.  567. 
Provision   maturing:   debt   on   default. 

Cited  in  Horn  v.  Bennett,  135  Ind.  163,  24  L.  R.  A.  804,  34  N.  E.  321,  holding 
priority  of  notes  given  to  secure  mortgage  not  changed  where  all  the  notes  become 
due  in  consequence  of  mortgagor's  default;  Watts  v.  Creighton,  85  Iowa,  160,  52 
N.  W.  12,  holding  mortgagee's  option  to  declare  entire  debt  due  on  default  may 
be  waived  so  that  such  default  will  not  set  statute  of  limitations  in  operation; 
Green  v.  Frick,  25  S.  D.  348,  126  K  W.  579.  to  the  point  that  provision  in  note  to 
effect  that  in  case  of  default  in  payment  of  interest,  whole  amount  of  principal 
will  become  due,  is  in  nature  of  forfeiture  which  party  is  not  bound  to  enforce. 

Questioned  in  San  Antonio  Real  Estate  Bldg.  &  Loan  Asso.  v.  Stewart,  94  Tex. 
446,  86  Am.  St.  Rep.  864,  61  S.  W.  386,  on  proposition  that  provision  maturing 
entire  debt  on  default  is  a  penalty  or  forfeiture. 
Priority    of    notes. 

Cited  in  note   (2-1  L.  R.  A.  802)  on  priority  of  notes  as  regulated  by  maturity, 

7  L.  R.  A.  367,  Re  WOODWARD,  117  N.  Y.  522,  23  N.  E.  120. 
Construction  of  Trord  "nephew." 

Cited  in  Nicholson  v.  Nicholson,  115  Iowa,  495,  91  Am.  St.  Rep.  175,  88  N.  W. 
1064,  and  Willard  v.  Darrah,  168  Mo.  672,  90  Am.  St.  Rep.  468,  68  S.  W.  1023, 
holding  word  "nephew"  does  not  include  grand  nephews:  Leask  v.  Richards,  116 
App.  Div.  281,  101  N.  Y.  Supp.  652,  holding  while  ordinarily  the  words  "nephew'r 
and  "niece"  will  be  taken  in  their  primary  sense  as  indicating  children  of  a 
brother  or  sister,  yet  when  the  intention  of  the  testator  is  evident,  the  words 
may  be  expanded  to  mean  grandnepliews  and  grandnieces:  Mobley  v.  Mohley,  85- 
S.  C.  322,  67  S.  E.  556,  to  the  point  that  children  of  nephew  or  niece  cannot  be 
held  to  mean  children  of  grandnephew  or  grandniece. 

Cited  in  note  (9  L.  R.  A.  200)  on  legacy  to  nephews  and  nieces. 
Construction  of  trill. 

Cited  in  notes  (8  L.R.A.  742)  on  rule  of  construing  wills;  (14  Eng.  RuL 
Cas.  655)  on  same  point. 


7  L.R.A.  367]  L.  R.  A.  CASES  AS  AUTHORITIES.  1306 

Vesting  of  legacy. 

Cited  in  footnote  to  Wengerd's  Appeal,  13  L.  R.  A.  360,  which  holds  legacies 
vest  at  testator's  death  under  will  converting  estate  into  money  and  directing  dis- 
tribution between  children  of  son. 

7  L.  R.  A.  369.  MILLVALE  v.  EVERGRKEX  R.  CO.  131  Pa,  1,  18  Atl.  993. 
Sufficiency  of  title  of  statute. 

Cited  in  Com.  v.  Moore.  2  Pa.  Super.  Ct.  166,  and  Com  v.  Curry,  4  Pa.  Super. 
Ct.  360,  holding  title  sufficient  which  fairly  gives  notice  of  subject  of  act  so  as 
to  lead  to  inquiry  into  body  of  bill;  Luzerne  Water  Co.  v.  Toby's  Creek  Water 
Co.  6  Kulp,  239,  holding  title  of  supplemental  act  sufficient  which  indicates  an 
amendment  of  original  followed  by  specification  of  changes,  where  latter  not  ap- 
parently explanatory  of  former;  Lehigh  Valley  Coal  Co.  v.  United  States  Pipe 
Line  Co.  3  Pa.  Dist.  R.  72.  7  Kulp,  79,  holding  title  to  act  of  June  2.  1883.  suffi- 
ciently indicates  its  purpose  to  provide  for  taking  of  lands  for  transportation  of 
petroleum;  Com.  v.  Darmska.  16  Pa.  Dist.  R.  893:  Allentown  v.  Wagner.  27  Pa. 
Super.  Ct.  492, — holding  title  sufficient  which  fairly  gives  notice  of  object  of 
act  so  as  to  lead  to  inquiry  into  body  of  bill. 

Cited  in  notes  (64  Am.  St.  Rep.  80)  on  sufficiency  of  title  of  statute;    (86  Am. 
St.  Rep.  274)   on  necessity  of  title  disclosing  details. 
Title  of  supplemental  act. 

Cited  in  Forty  Fort  v.  Forty  Fort  Water  Co.  9  Kulp.  251;  Com.  v.  Edgerton 
Coal  Co.  164  Pa,  305,  30  Atl.  129:  Philadelphia  v.  Ridge  Ave.  R.  Co.  142  Pa.  401. 
24  Am.  St.  Rep.  512,  21  Atl.  9S2 — holding  .supplemental  act  germane  to  original 
covered  by  title  referring  to  original  act:  Washington  v.  MeGeorge,  146  Pa.  2.~>4. 
23  W.  N.  C.  252,  23  Atl.  222.  holding  supplemental  act  constitutional  where  its 
provisions  are  germane  to  subject  expressed  in  title:  Luzerne  Water  Co.  v.  Toby 
Creek  Water  Co.  148  Pa.  571.  24  Atl.  117,  holding  title  of  supplementary  act  suf- 
ficient if  germane  to  subject  of  original  act;  Com.  ex  rel.  Smathers  v.  Taylor. 
159  Pa.  457.  34  W.  X.  C.  33.  28  Atl.  348,  to  point  that  supplemental  act  may  con- 
tain anything  germane  to  original  act:  Wilson  v.  Downing.  4  Pa.  Super.  Ct.  492. 
holding  title  to  supplemental  act  sufficient  where  its  subject-matter  is  within 
title  and  also  germane  to  subject  of  original  act:  Allentown  v.  Wagner.  214  Pa. 
212.  63  Atl.  697:  Com.  ex  rel.  Cummings  v.  Atty.  Gen.  30  Pa.  Co.  Ct.  58,  13  Pa. 
Dist.  R.  525:  Com.  v.  Leibrich,  33  Pa.  Co.  Ct.  290.  16  Pa.  Dist.  R.  469:  Weeks 
v.  Franklin,  13  Pa.  Dist.  R.  286. — holding  same;  Com.  ex  rel.  Kruder  v.  Light.  35 
Pa.  Super.  Ct.  370,  holding  where  prior  legislation  imposes  upon  counties  a  duty 
or  burden,  a  subsequent  act  upon  the  same  subject  need  not  expressly  state  in  its 
title  that  burden  of  paying  for  same  shall  be  borne  by  county. 
Construction  of  terms  ••railroad"  and  ••railway." 

Cited  in  Massachusetts  Loan  &  T.  Co.  v.  Hamilton.  32  C.  C.  A.  50,  59  U.  S.  App. 
403,  88  Fed.  592;  Rafferty  v.  Central  Traction  Co.  147  Pa.  589,  29  W.  N.  C.  542, 
30  Am.  St.  Rep.  763,  23  Atl.  SS4.  reversing  22  Pittsb.  L.  J.  X.  S.  19:  Old  Colony 
Trust  Co.  v.  Allentown  &  B.  Rapid  Transit  Co.  192  Pa.  603.  44  Atl.  319,  holding 
the  words  "railroad"  and  "railw-iy''  synonymous:  Pennsylvania  R.  Co.  v.  Inland 
Traction  Co.  25  Pa.  Super.  Ct.  123.  as  to  construction  of  the  terms. 
Street  railroads. 

Cited  in  Cheetham  v.  McCormick.  178  Pa.  191.  35  Atl.  631.  holding  street  rail- 
roads are  within  term  "railroad  corporations"  as  used  in  statute;  Sams  v.  St. 
Louis  &  M.  River  R.  Co.  174  Mo.  89?  61  L.  R.  A.  485,  73  S.  W.  686.  and  Com.  v. 
McCaully,  2  Pa.  Dist.  R.  63.  holding  word  "railroad"  includes  street  railroads: 
Banimel  v.  Kirby,  19  Tex.  Civ.  App.  200.  47  S.  \\ .  392.  holding  statutory  term 
"any  railroad"  includes  street  railroads:  Pennsylvania  R.  Co.  v.  Inland  Traction 


1307  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  374 

Co.  18  Montg.  Co.  L.  Rep.  137,  holding  consolidating  street  railways  under  act  of 
May   16,   1861,  lawful. 

Cited  in  note    (52  L.  R.  A.  380)   on  right  of  street   railways    to    consolidate 
under  statute  authorizing  consolidation  of  railrcads. 
Change    of    gauge    or    motive    power. 

Cited  in  Western  N.  Y.  &  P.  R.  Co.  v.  Buffalo,  R,  &  P.  R.  Co.  193  Pa.  135,  44 
Atl.  242,  as  sustaining  right  of  railroad  company  to  widen  its  gauge;  Watkin  v. 
West  Philadelphia' Pass.  R.  Co.  11  Pa.  Co.  Ct.  653,  31  W.  X.  C.  271,  1  Pa.  Dist. 
R.  467,  holding  passenger  railway  limited  by  charter  to  horse  power  without  au- 
thority to  make  use  of  trolley  system  of  electricity;  Howley  v.  Central  Valley  R. 
Co.  213  Pa.  42,  2  L.R.A. (X.S.)  142,  62  Atl.  109,  5  A.  4  E.  Ann.  Cas.  51,  holding 
a  railroad  company  where  it  is  not  limited  as  to  power  to  be  used,  is  required 
to  use  that  which  is  best  and  most  convenient  for  its  operation,  having  due  re- 
gard to  safety  of  public. 
Right  of  railway  in  and  municipal  control  over  afreet. 

Cited  in  New  Castle  v.  Lake  Erie  &  W.  R.  Co.  155  Ind.  23,  57  N.  E.  516,  hold- 
ing city  may  grant  railway  the  right  to  lay  tracks  longitudinally  along  the 
street;  Re  Johnston,  137  Cal.  121,  69  Pac.  973,  holding  void,  ordinance  requiring 
permit  from  city  to  lay  gas  and  water  pipes  in  streets ;  Northern  Coal  &  I.  Co.  v. 
Wilkes-Barre,  13  Luzerne  Legal  Reg.  Rep.  139,  holding  that  railroad  may  con- 
struct overhead  street  crossings  without  consent  of  city;  Ritter  v.  Lehigh  Coal  & 
Xav.  Co.  10  North.  Co.  Rep.  356,  16  Pa.  Dist.  R.  716,  holding  unless  there  is  a 
limitation  in  their  charter  railroads  incorporated  under  act  of  April  4th  1868  are 
not  compelled  to  obtain  borough  consent  to  construct  lines  through  its  territory; 
Grand  Trunk  Western  R.  Co.  v.  South  Bend,  174  Ind.  218,  36  L.R.A.(X.S.)  856, 
89  X.  E.  885,  holding  that  legislature  may  grant  railroad  right  to  lay  tracks  in 
city  street  without  consent  of  city. 

Cited  in  footnote  to  Chicago  G.  W.  R.  Co.  v.  First  M.  E.  Church,  50  L.  R.  A. 
488,  which  holds  water  tank  in  street  and  station  at  which  bells  constantly  rung 
and  whistles  blown  within  few  rods  of  church,  a  nuisance. 
Implied  powera  of  corporation. 

Cited  in  Folk  v.  State  Capital  Sav.  &  L.  Asso.  214  Pa.  542,  63  Atl.  1013, 
holding  the  right  granted  to  prosecute  its  business  carries  with  it  the  power  to 
employ  all  the  usual  means  appropriate  for  its  efficient  prosecution. 

7  L.  R.  A.  374..  ST.  LOUIS,  I.  M.  &  S.  R.  CO.  v.  WORTHEN,  52  Ark.  529,  13  S. 

W.  254. 
Clacuiincation   of  property   for  taxation. 

Cited  in  Sawyer  v.  Dooley.  21  Nev.  400.  32  Pac.  437,  holding  act  classifying 
property  for  taxation,  applying  to  all  railroads,  general  law;  Wells,  F.  &  Co.'s 
Express  v.  Crawford  County,  63  Ark.  589,  37  L.  R.  A.  375,  40  S.  W.  710,  holding 
separate  classification  for  taxation  of  express  company's  property  within  legis- 
lative power ;  St.  Louis  &  S.  F.  R.  Co.  v.  Williams,  53  Ark.  64,  13  S.  W.  796,  hold- 
ing bridge,  the  use  of  which  only  has  been  acquired  by  railway,  not  taxable  by 
state  board;  State  ex  rel.  Morton  v.  Back,  72  Xeb.  424,  69  L.R.A.  459,  100  X. 
W.  952,  holding  in  the  assessment  of  railway  roadbed  for  taxation  it  is  com- 
petent for  the  legislature  to  classify  such  property,  and  provide  for  the  assess- 
ment of  the  same  as  personalty,  and  to  fix  the  situs  of  the  property  assessed  by 
providing  for  the  valuation  of  the  property  as  an  entirety,  and  the  distribution 
of  the  total  value  to  each  taxing  district  according  to  the  number  of  miles  of 
aiain  track  located  thereon. 

Cited  in  footnotes  to  State  T.  Virginia  &  T.  R.  Co.  35  L.  R.  A.  759,  which  holds 


7  L.R.A.  374]  L.  R.  A.  CASES  AS  AUTHORITIES.  1308 

earning  capacity  of  railroad  main  consideration  in  determining  taxable  value ; 
Knoxville  &  O.  R.  Co.  v.  Harris,  53  L.  R.  A.  921,  which  holds  exemption  from 
privilege  tax  not  included  in  exemption  from  ad  valorem  tax. 

Cited  in  notes   (14  L.  R.  A.  585)    on  constitutional  equality  of  privileges,  im- 
munities, and  protection;    (60  L.  R.  A.  340,  374),  on  constitutional  equality  in 
the  United  States  in  relation  to  corporate  taxation;    (25  Am.  St.  Rep.  887)   on 
14th  amendment  as  to  special  privileges,  burdens  and  restrictions. 
Notice  of  taxation. 

Cited  in  State  ex  rel.  Jennings  Bros.  Invest.  Co.  v.  Armstrong,  19  Utah,  127, 
56  Pae.  107*5,  holding  notice  need  not  be  given  by  county  board  of  equalization  in 
raising  or  lowering  taxation  on  entire  class  of  property  in  district;  Carroll  v. 
Alsup,  107  Tenn.  278,  64  S.  W.  193,  holding  only  notice  required  for  increase  of 
taxation  by  state  board  afforded  by  statute  fixing  date  of  biennial  session;  State 
ex  rel.  Harrison  County  Bank  v.  Springer,  134  Mo.  226,  35  S.  W.  589,  holding 
notice  not  required  when  statute  fixes  date  when  parties  may  show  cause  against 
increase  of  assessment;  State  ex  rel.  Rice  v.  Harrison,  226  Mo.  173,  125  S.  W. 
1115,  holding  assessment  of  property  for  taxation  without  notice  not  in  violation 
of  article  of  federal  constitution  providing  that  no  person  shall  be  deprived  of 
property  without  due  process  of  law;  St.  Louis  S.  W.  R.  Co.  v.  Grayson,  72  Ark. 
125,  78  S.  W.  777,  holding  provision  of  federal  constitution  prohibiting  person  to 
be  deprived  of  property  without  due  process  of  law  is  not  violated  by  statute 
establishing  a  drainage  district,  which  does  not  provide  a  day  in  court  for  party 
interested. 
Practice. 

Cited  in  footnotes  to  McClain  v.  Williams,  43  L.  R.  A.  287,  which  holds  right 
of  appeal  subject  to  legislative  restriction;  Johnson  v.  State,  51  L.  R.  A.  272, 
which  sustains  provision  against  reversal  for  error  in  charge  not  excepted  to. 

7  L.  R.  A.  377,  BENNETT  v.  CHAPIN,  77  Mich.  526,  43  N.  W.  893. 
Property  obtained  under  Trill. 

Cited  in  Webb  v.  Hayden,  166  Mo.  49,  65  S.  W.  760,  holding  possession  of 
executor  assuming  to  act  as  trustee  cannot  be  disturbed  by  one  without  title; 
Green  v.  Russell,  103  Mich.  642,  61  N.  W.  885,  holding  purchaser  justified  in  re- 
fusing title  to  property  purchased  from  administrator  with  will  annexed  unless 
order  of  court  obtained;  Parkhurst  v.  Trumbull,  130  Mich.  412,  90  N.  W.  25, 
holding  executor  not  authorized  to  mortgage  property  under  power  of  sale. 

Cited  in  note  (80  Am.  St.  Rep.  107)  on  powers  of  sale  in  wills,  and  who  may 
execute  them. 
Validity  of  restraints  on  alienation. 

Cited  in  Manierre  v.  Welling,  32  R.  I.  Ill,  78  Atl.  507,  Ann.  Cas.  1912C,  1311, 
holding  that  fact  that  restriction  on  alienation  is  limited  in  duration  does  not  of 
itself  make  restraint  valid,  if  it  is  otherwise  unreasonable. 

Cited  in  note  (3  L.R.A.  (N.S.)  670,  677)  on  validity  of  restraint  on  alienation 
during  limited  time. 

7  L.  R.  A.  381,  METROPOLITAN  EXHIBITION  CO.  v.  EWING,  42  Fed.  198. 
Enforcement  of  contracts. 

Cited  in  Donker  &  W.  Co.  v.  Vance,  2  111.  C.  C.  15,  holding  the  rule  that  in- 
junction will  lie  to  restrain  the  breach  of  a  contract  for  personal  services  does 
not  apply  to  contracts  between  master  and  servant;  General  Electric  Co.  v.  West- 
inghouse  Electric  Co.  151  Fed.  672,  holding  cases  where  courts  will  enjoin  vio- 


1309  L.  E.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  387 

lation  of  negative  part  of  contract  relate  to  personal  contracts  involving  special 
personal  attainments  and  skill. 

Cited  in  footnote  to  Philadelphia  Ball  Club  v.  Lajoie,  58  L.  R.  A.  227,  which 
authorizes  injunction  against  base  ball  player  violating  contract  to  play  for 
certain  organization,  for  specified  time,  and  meanwhile  not  play  for  other  club. 

Cited  in  notes  (7  L.  R.  A.  780)  on  unenforceable  contracts;  (11  L.  R.  A.  550) 
on  special  services  for  professional  labor;  (20  L.  R.  A.  168)  on  power  of  equity 
to  grant  mandatory  injunction;  (6  L.R.A. (X.S.)  1117,  1141)  on  enforcement  of 
contract  of  service  by  equity;  (68  Am.  St.  Rep.  754,  762)  on  specific  performance 
of  contract  where  decree  cannot  be  enforced;  (90  Am.  St.  Rep.  650)  on  injunction 
against  breach  of  contract;  (6  Eng.  Rul.  Gas.  665)  on  refusal  to  enforce  specific 
performance  of  contract,  the  execution  of  which  the  court  cannot  superintend. 

7  L.  R.  A.  385,  CHURCH  v.  CHURCH,  16  R.  I.  667,  19  Atl.  244. 
Defense  to  action   for   divorce. 

Cited  in  Mathewson  v.  Mathewson,  18  R.  I.  459,  49  Am.  St.  Rep.  782,  28  Atl. 
801,  holding  divorce  will  not  be  granted  to  woman  continuing  to  live  with  second 
husband  after  first  husband's  return  from  presumptive  death;  Day  v.  Day,  71 
Kan.  390,  80  Pac.  974,  6  A.  &  E.  Ann.  Cas.  169,  holding  where  it  is  shown  that 
each  party  to  an  action  had  been  guilty  of  a  matrimonial  offense,  which  the  stat- 
ute lias  made  a  ground  for  divorce,  they  will  be  deemed  to  be  in  "equal  wrong," 
and  the  court  may  in  its  discretion,  refuse  to  grant  a  divorce,  although  the  offense 
may  not  be  of  the  same  character;  Bordeaux  v.  Bordeaux,  30  Mont.  43,  75  Pac. 
524,  as  to  recriminatory  matter  as  a  defense;  Wilson  v.  Wilson,  89  Neb.  755, 
132  X.  W.  401,  holding  that  "cruel  conduct"  if  made  ground  of  absolute  divorce, 
may  be  shown  in  recrimination  of  charge  of  adultery. 

Cited  in  notes  (86  Am.  St.  Rep.  334,  340)  on  recrimination  as  defense  in  divorce 
proceeding;  (39  L.R.A.  (N.S.)  1137)  on  desertion  or  cruelty  as  recriminating 
defense  to  subsequent  adultery. 

7  L.  R.  A.  386,  BUFFUM  v.  TIVERTOIST,  16  R.  I.  643,  19  Atl.  112. 
Trust   estate   passing  under  general   devise. 

Cited  in  Re  Higgins,  15  Mont.  483,  28  L.  R.  A.  119,  39  Pac.  506,  holding  that 
trust  estate  does  not  always  pass  under  general  devise. 
Devise   to   -wife. 

Cited  in  note  (10  L.  R.  A.  757)  on  devise  to  wife  for  life  with  power  to  sell  or 
dispose  of  estate. 
Precatory  trnsts. 

Cited  in  note  (106  Am.  St.  Rep.  523)  on  precatory  trusts. 

7  L.  R.  A.  387,  HOPKINS  v.  MANCHESTER,  16  R.  I.  663,  19  Atl.  243. 
When    grift    created. 

Cited  in  Blazo  v.  Cochrane,  71  N.  H.  587,  53  Atl.  1026,  holding  gift  causa 
mortis  not  established  when  donor  died  subsequently  from  another  cause;  Mat- 
thews  v.  Hoagland,  48  N.  J.  Eq.  487,  21  Atl.  1054,  holding  delivery  of  certificate 
of  stock  without  written  assignment  or  power  does  not  constitute  gift  inter  vivos; 
Allen-West  Commission  Co.  v.  Grumble,  63  C.  C.  A  401,  129  Fed.  291,  holding 
gift  of  stock  in  corporation  without  delivery  of  certificate  invalid;  Talbot  v. 
Talbot,  32  R.  I.  98.  78  Atl.  535,  Ann.  Cas.  1912C,  1221,  holding  that  delivery 
of  certificate  of  stock  with  written  assignment,  but  without  indorsement  or  reg- 
istration, constitutes  valid  gift. 

Cited  in  note    (12  Eng.  Rul.  Cas.  438)    on  necessity  of  delivering  gift   inter- 


7  L.R.A.  388]  L.  R.  A.  CASES  AS  AUTHORITIES.  1310 

7  L.  R.  A.  388,  SPAIGHT  v.  MeGOVERN,  10  R.  I.  658,  19  Atl.  246. 
When  killing  of  dogs  permitted. 

Cited  in  Harris  v.  Eaton,  20  R.  I.  84,  37  Atl.  308,  holding  licensed  dog  cannot 
be  killed  while  trespassing  unless  he  is  doing  the  damage  for  which  he  may  be 
killed  by  statute. 

Cited  in  notes  (15  L.R.A.  250,  40  L.R.A.  510)  on  right  to  kill  dogs: 
(67  Am.  St.  Rep.  293)  on  justification  for  killing  another's  dog. 

7  L.  R.  A.  390,  UNITARIAN  SOC.  v.  TUFTS,  151  Mass.  76,  23  N.  E.  1006. 
Specific  legacies;  ademption. 

Cited  in  Tolman  v.  Tolman,  85  Me.  321,  27  Atl.  184,  holding  bequest  of  notes 
adeemed  by  testator  surrendering  them  and  taking  reconveyance  of  property  for 
which  they  were  given;  New  Albany  Trust  Co.  v.  Powell,  29  Ind.  App.  502, 
64  N.  E.  640,  holding  legatee  not  entitled  to  larger  number  of  shares  of  stock  than 
owned  by  testator  at  death;  Re  Frahm,  120  Iowa,  91,  94  X.  W.  444,  holding 
bequest  of  stock  not  adeemed  by  acceptance  of  note  in  lieu  thereof;  Drake  v. 
True,  72  N.  H.  323,  56  Atl.  749,  holding  legatees  of  exact  amount  of  stock  owned 
by  testator  at  time  will  executed  entitled  only  to  amount  owned  at  his  death, 
where  some  had  been  disposed  of. 

Cited  in  footnote  to  Evans  v.  Hunter,  17  L.  R.  A.  308,  which  holds  bequests  of 
certain  amounts  in  unidentified  United  States  bonds  general. 

Cited  in  notes  (95  Am.  St.  Rep.  359;  2  Eng.  Rul.  Cas.  26)  on  ademption  of 
specific  legacy;  (40  L.R.A. (N.S.)  543)  on  disposal,  loss,  or  destruction,  or  pay- 
ment of  debt,  as  ademption  of  specific  legacy  or  devise;  (40  L.R.A. (N.S.)  534  i 
on  change  in  subject-matter  or  substitution  of  other  property  as  ademption  of 
specific  legacy  or  devise. 

Distinguished  in  Slade  v.  Talbot,  182  Mass.  259,  94  Am.  St.  Rep.  653,  65  N.  E. 
374,  holding  that  executor  must  purchase  shares  sufficient  to  make  up  number 
bequeathed. 
Specific   and  general   legacies. 

Cited  in  Thayer  v.  Paulding,  200  Mass.  100,  85  N.  E.  868,  holding  under  terms 
of  will  legacy  of  shares  of  stock  was  specific. 

Cited  in  notes  (140  Am.  St.  Rep.  586,  614)  on  meaning  of,  and  distinction  be- 
tween specific,  demonstrative,  and  general  bequests;    (11  L.R.A.  (N.S.)   60,  77,  81, 
82,  85)   on  bequest  of  stocks,  bonds,  or  notes  as  general  or  specific. 
Republication  of  will  by  codicil. 

Distinguished  in  Brown  v.  Wright,  194  Mass.  544,  80  N.  E.  612.  holding  in 
present  case  codicil  altered  will. 

7  L.  R.  A.  392,  GAY  v.  ROOKE,  151  Mass.  115,  21  Am.  St.  Rep.  434,  23  N.  E.  835. 
When     interest     runs. 

Cited  in  Horn  v.  Hansen,  56  Minn.  48,  22  L.  R.  A.  619,  57  N.  W.  315,  holding 
interest  on  "wheat  ticket"  runs  from  its  date,  the  wheat  having  been  delivered ; 
Gould  v.  Emerson,  160  Mass.  441,  39  Am.  St.  Rep.  501,  35  N.  E.  1065,  holding 
interest  on  note  not  bearing  interest  not  allowable  until  demand. 

Cited  in  note   (8  L.  R.  A.  393)   on  negotiable  instruments. 

7  L.  R.  A.  393,  SLATTERY  v.  WASON,   151  Mass.  266,  21  Am.  St.  Rep.  448, 

23  N.  E.  843. 
"When   income   of  trust   fnnd  subject   to   debts   of  beneficiary. 

Cited  in  Reynolds  v.  Hanna,  55  Fed.  791,  holding  share  of  beneficiary  in 
income  of  trust  estate  which  it  was  in  discretion  of  trustee  to  apply  to  his  use 


1311  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  393 

is  subject  to  his  debts;  Thornton  v.  Stanley,  55  Ohio  St.  209,  45  N.  E.  318,  hold- 
ing bequest  of  income  of  estate  in  trust  for  education  and  support  of  beneficiary 
for  life  without  limitation  can  be  reached  by  creditors;  Roberts  v.  Stevens,  84 
Me.  327,  17  L.  R.  A.  268,  24  Atl.  873,  holding  creditors  cannot  reach  income  of 
trust  fund  which  testator  has  directed  shall  not  be  assigned  or  transferred  except 
to  beneficiary;  Billings  v.  Marsh,  153  Mass.  313,  10  L.  R.  A.  766,  25  Am.  St 
Rep.  635,  26  N.  E.  1000,  holding  trust  fund  under  will  providing  it  shall  not 
be  assignable  or  taken  for  any  debt  of  legatee  does  not  pass  to  assignee  in 
insolvency;  Wemyss  v.  White,  159  Mass.  485,  34  X.  E.  718,  holding  income  of 
trust  fund,  with  discretion  in  trustee  to  discontinue  payment,  cannot  be  reached 
by  mortgagee  of  beneficiary;  Evans  v.  Wall,  159  Mass.  169,  38  Am.  St.  Rep.  410. 
34  X.  E.  183,  holding  income  of  fund  under  will  payable  absolutely  is  subject  to 
rights  of  creditors;  Patten  v.  Herring,  9  Tex.  Civ.  App.  646,  29  S.  W.  388. 
holding  will  left  real  estate  to  executor  in  trust  for  beneficiaries  so  that  cred- 
itors could  not  reach  it;  Wenzel  v.  Powder,  100  Md.  45,  108  Am.  St.  Rep.  380, 
59  Atl.  194.  holding  where  trust  provided  that  income  should  be  applied  to  sup- 
port of  settler  and  his  family,  and  the  income  given  to  beneficiaries,  the  income 
was  subject  to  claims  of  creditors;  Merchants'  Xat.  Bank  v.  Crist,  140  Iowa,  316, 
23  L.R.A. (X.S.)  530,  132  Am.  St.  Rep.  267,  118  X.  W.  394,  holding  creditors 
cannot  deprive  the  beneficiary  of  a  spendthrift  trust  of  the  support  provided  for 
him  out  of  the  trust  property,  at  least  so  long  as  the  support  is  in  accordance 
with  his  station  in  life. 

Cited  in  footnotes  to  Morgan  v.  Halsey,  36  L.  R.  A.  716,  which  holds  power  of 
appointment  of  property  to  testatrix's  daughter  in  any  manner  she  may  deem 
proper  limited  by  subsequent  clauses  of  will:  Requa  v.  Graham,  52  L.  R.  A.  641, 
which  holds  annuity  in  wife's  will  in  lieu  of  other  interests  accepted  by  husband, 
not  trust  beyond  reach  of  creditors;  Hutehinson  v.  Maxwell,  57  L.  R.  A.  384, 
which  denies  power  to  create  equitable  life  estate  free  from  debts  of  beneficiary; 
Jewell  v.  Louisville  Trust  Co.  53  L.  R.  A.  377,  which  denies  creation  of  precatory 
trust  by  will  of  merchant  expressing  desire  for  retention  on  liberal  terms  of 
specified  person  in  employ  of  firm  of  which  testator  a  partner;  Leigh  v.  Harri- 
son, 18  L.  R.  A.  49,  which  denies  creditor's  right  to  reach  debtor's  interest  under 
spendthrift  trust;  Murphy  v.  Delano,  55  L.  R.  A.  727,  which  holds  income  of 
spendthrift  trust  not  within  reach  of  creditors  by  void  agreement  of  trustee  to 
pay  certain  portion  of  income  absolutely  to  beneficiary;  Bull  v.  Kentucky  Nat. 
Bank,  12  L.  R.  A.  37,  which  determines  liability  of  spendthrift  trust  to  payment 
of  beneficiary's  debts;  Roberts  v.  Stevens,  17  L.  R.  A.  266,  which  authorizes  estab- 
lishment of  spendthrift  trust  free  from  rights  of  creditors;  Williams  v.  Baptist 
Church,  54  L.  R.  A.  427.  which  holds  absolute  gift,  not  trust,  created  by  bequest  to 
church  and  "suggesting"  as  to  application. 

Cited  in  notes  (11  L.  R.  A.  565)  on  spendthrift  trusts;  (13  L.  R,  A.  563)  on 
precatory  words  in  will;  (13  L.  R.  A.  212)  on  creator  of  estate  may  qualify  its 
enjoyment  by  annexing  conditions  and  limitations;  (24  Am.  St.  Rep.  695)  on 
spendthrift  trusts. 

Distinguished  in  Levi  v.   Bergman,  94  Md.   212.  50  Atl.  515,  holding  trustee 
cannot    exercise   discretion    under   will    by   giving   extra   allowance   in   favor   of 
creditor  of  beneficiary  in  whom  is  no  right  to  demand  it. 
Interest  of  beneficiaries  In  trust  estate. 

Cited  in  Jastram  v.  McAuslan.  26  R.  I.  322.  58  Atl.  952,  holding  under  a  will 
bequeathing  residue  of  estate  to  trustees  to  pay  part  of  income  to  widow  during 
her  life  and  the  remainder  toward  support  of  testator's  children  the  interest 
of  children  were  assignable. 


7  L.R.A.  396]  L.  R.  A.  CASES  AS  AUTHORITIES.  1312 

7  L.  R.  A.  396,  MOORE  v.  VALDA,  151  Mass.  363,  23  N.  E.  1102. 
Ne  exeat  Tvrit. 

Cited  in  footnotes  to  Midland  Co.  v.  Broat,  17  L.  R.  A.  312,  which  holds 
lex  loci  governs  action  for  breach  of  bond  given  on  issuance  of  ne  exeat  writ; 
Miller  v.  Miller,  24  L.  R,  A.  137,  which  holds  requirement  of  two  years'  resi- 
dence to  give  jurisdiction  of  suit  for  divorce  not  applicable  to  suit  for  alimony. 

7  L.  R,  A.  399,  LOUISVILLE  UNDERWRITERS  v.  DURLAXD,  123  Ind.  544, 

24  N.  E.  221. 
Conditions   precedent. 

Cited  in  Burlington  Ins.  Co.  v.  Rivers,  9  Tex.  Civ.  App.  180,  28  S.  W.  453, 
holding  provisos  creating  exceptions  to  general  liability  for  loss  need  not  be 
negatived  with  general  averment  of  performance  of  conditions ;  Hanover  F. 
Ins.  Co.  v.  Johnson,  26  Ind.  App.  126,  57  N.  E.  277,  holding  general  averment 
of  performance  of  conditions  of  policy  sufficient  though  coupled  with  allegations 
of  particular  facts;  Ft.  Wayne  Ins.  Co.  v.  Irwin,  23  Ind.  App.  56,  54  X.  E.  817. 
holding  complaint  sufficiently  alleges  condition  precedent  by  averring  performance 
of  all  conditions  in  policy;  Darnell  v.  Keller,  18  Ind.  App.  105,  45  X.  E.  676. 
holding  allegation  of  performance  of  conditions  precedent  need  not  be  in  exact 
words  of  statute;  Voluntary  Relief  Department  v.  Spencer,  17  Ind.  App.  125, 
46  X.  E.  477,  holding  allegation  in  complaint  that  member  had  fully  complied 
with  conditions  of  membership  negatived  idea  of  violation  of  condition  precedent 
in  rules;  Milwaukee  Mechanics'  Ins.  Co.  v.  Stewart,  13  Ind.  App.  645.  42  X.  E. 
290.  holding  waiver  of  condition  precedent  need  not  be  specifically  alleged  in 
complaint;  Moffitt  v.  Phenix  Ins.  Co.  11  Ind.  App.  240,  38  X.  E.  835,  holding 
conditions  precedent  are  sufficiently  pleaded  by  averment  that  all  conditions  have 
been  performed;  Modern  Woodmen  of  America  v.  Noyes,  158  Ind.  567,  64  X.  E. 
21,  holding  plaintiff  need  not  negative  warranties  and  exceptions  stated  in  policy. 
Liability  on  insurance  policy. 

Cited  in  Vorse  v.  Jersey  Plate  Glass  Ins.  Co.  119  Iowa,  561,  60  L.  R.  A.  840, 
97  Am.  St.  Rep.  330,  93  X.  W.  569,  holding  breaking  of  windows  by  explosion  pre- 
ceding fire,  not  "damage  by  fire."  within  terms  of  policy;  Wertheimer-Swarts 
Shoe  Co.  v.  United  States  Casualty  Co.  172  Mo.  150,  61  L.  R,  A.  769,  95  Am. 
St.  Rep.  500,  72  S.  W.  635,  holding  policy  not  avoided  by  fact  that  loss  was 
result  of  negligence  of  employee  of  insured. 

Cited  in  note  (19  L.  R,  A.  598)  on  liability  of  insurer  for  loss  caused  by  ex- 
plosion. 

7  L.  R,  A.  403,  GILKESON-SLOSS  COMMISSION  CO.  v.  LOXDOX,  53  Ark.  88, 

13  S.  W.  513. 
Assignment  for  benefit  of  creditors,   when   invalid. 

Followed  in  Smith  v.  Patterson,  57  Ark.  540,  22  S.  W.  343,  holding  assignment 
avoided  by  assignee's  taking  possession  before  completion  of  inventory  and  bond. 

Cited  in  Baker  v.  Baer,  59  Ark.  510,  28  S.  W.  28,  holding  assignee's  possession 
before  bond  and  inventory  filed  vitiates  assignment ;  Badgett  v.  Johnson- Fife 
Hat  Co.  29  C.  C.  A.  232,  56  U.  S.  App.  416,  85  Fed.  410,  and  Fowler  v.  Blosser. 
1  Ind.  Terr.  39.  35  S.  W.  247.  holding  oral  agreement  to  give  assignee  possession 
before  filing  inventory  and  bond  invalidates  assignment ;  Pace  v.  J.  S.  Merrill 
Drug  Co.  2  Ind.  Terr.  224.  48  S.  W.  1061,  and  Churchill  v.  Hill,  59  Ark.  64, 
26  S.  W.  378,  holding  deed  of  assignment  directing  disposition  of  property 
different  from  that  prescribed  by  statute,  fraudulent;  Phelps  v.  Wyler,  67  Ark. 


1313  L.  R.  A.  CASKS  AS  AUTHORITIES.  [7  L.R.A.  407 

103,  56  S.  W.  632,  holding  deed  of  assignment  providing  possession  not  to  be 
given  to  assignee  until  filing  of  inventory  and  bond,  valid. 

7  L.  R.  A.  405,  CARR.UTH-BYRNES  HARDWARE  CO.  v.  DEERE,  53  Ark.  140, 

13  S.  W.  517. 
A  it  a<-li  in  <•  ii ;:   right  to  sue  necessary  to    validity* 

Cited  in  Davis  v.  H.  B.  Claflin  Co.  63  Ark.  173,  35  L.  R.  A.  786,  58  Am.  St. 
Rep.    102,   38   S.   W.   1117,  holding  right  of  attachment  is   incident  to  and  de- 
pendent upon  right  to  sue,  and  have  judgment,  for  the  debt. 
Right  to  question  validity  of  lien. 

Cited  in  Glaser  v.  First  Nat.  Bank,  62  Ark.  179,  35  L.  R.  A.  771,  34  S.  W.  1061. 
holding  junior  attaching  creditor  cannot  controvert  existence  of  grounds  of  prior 
attachment;  Rice  v.  Dorrian,  57  Ark.  546,  22  S.  W.  213,  holding  junior  attach- 
ing creditor  may  intervene  in  prior  attachment  suit  for  purpose  of  showing 
same  issued  without  authority  in  law  or  in  fact;  Moody  v.  McRimmon,  7  Tex. 
Civ.  App.  583,  27  S.  W.  780,  conceding  for  purpose  of  argument  that  junior 
attaching  creditor  may  enjoin  sale  under  prior  attachment  issued  by  justice  of 
peace  without  citation. 

Cited  in  note   (35  L.  R,  A.  776)   on  right  of  creditors  to  question  validity  of 
attachment. 
Priority    of    liens. 

Cited  in  Lowenstein  v.  Caruth,  59  Ark.  592,  28  S.  W.  421,  holding  confession 
of  judgment  without  knowledge  or  consent  of  creditor  cannot  affect  rights  ac- 
quired by  third  parties  before  ratification. 
Snit   without   party's  consent. 

Cited  in  Wimberly  v.  State,  90  Ark.  517,  119  S.  W.  668,  holding  a  party  may 
adopt  a  suit  brought  in  his  name  without  bis  consent. 
Effect  of  ratification  of  agent's  acts. 

Cited  in  note  (22  Am.  St.  Rep.  190)  on  effect  of  ratification  of  agent's  unau- 
thorized acts. 

7   L.  R.  A.  407,  PEOPLE  ex  rel.  DARROW  v.  COLEMAN,   119  N.  Y.   137,  23 

X.  E.  488. 
Where    property    Is    taxable. 

Cited  in  People  ex  rel.  Day  v.  Barker,  135  N.  Y.  656,  48  N.  Y.  S.  R.  558, 
4  Silv.  Ct.  App.  649,  32  N.  E.  252.  holding  securities  in  possession  of  three 
trustees  in  another  state,  for  nonresident  beneficiary,  not  taxable  although  one 
of  the  trustees  resided  in  New  York;  People  ex  rel.  Beaman  v.  Feitner,  168  X.  Y. 
363,  61  N.  E.  280,  holding  under  laws  of  1896  trustees  assessable  in  tax  district 
of  residence  for  his  proportionate  share  of  trust  estate;  People  ex  rel.  Lorillard 
v.  Barker,  70  Hun,  398,  24  N.  Y.  Supp.  63,  holding  resident  of  Rhode  Island, 
wintering  in  Xew  York,  not  taxable  in  New  York;  People  ex  rel.  Beaman  v. 
Feitner,  63  App.  Div.  176,  71  N.  Y.  Supp.  261,  holding  securities  for  nonresident 
beneficiaries  deposited  outside  state,  where  one  trustee  resided,  not  taxable  in 
New  York ;  People  ex  rel.  Day  v.  Tax  Comrs.  42  N.  Y.  S.  R.  449,  17  N.  Y.  Supp. 
923,  holding  personal  property  forming  part  of  trust  fund  actually  deposited  out- 
side of  state  not  taxable  in  Xew  York;  People  ex  rel.  Day  v.  Barker,  44  N.  Y. 
S.  R.  574,  17  N.  Y.  Supp.  944,  holding  trust  securities  outside  state,  although 
liens  on  property  within  state,  not  taxable  in  New  York;  Augusta  v.  Kimball, 
91  Me.  609,  41  L.  R.  A.  477,  40  Atl.  666,  holding  nonresident  trustees  of  estate 
of  Maine  decedent  not  taxable,  after  removal  of  property  from  state;  Goodsite 
v.  Turner.  72  C.  C.  A.  281,  139  Fed.  5!.io.  2  Ann.  Cas.  849,  holding  estate  of 
L.R.A.  Au.  Vol.  I.— 83. 


7  L.R.A.  407]  L.  R.  A.  CASES  AS  AUTHORITIES.  1314 

beneficiary  not  taxable  in  Ohio  when  estate  was  not  located  therein  by  reason 
of  fact  that  trustee  was  resident  of  that  state;   Com.  v.  Peebles,  134  Ky.   134, 

23  L.R.A.(N.S.)  1130,  119  S.  W.  774,  holding  executor  not  required  to  pay  taxes 
upon  property  which  he  holds  by  virtue  of  his  appointment  in   another   state, 
where  no  part  of  the  property  legally  in  his  custody  is  within  jurisdiction  of 
this  state  j  People  ex  rel.  Stebbins  v.  Purdy,  144  App.  Div.  368,  129  N.  Y.  Supp. 
273,   to  the  point  that  property   in   possession   of  nonresident  trustee   was   not 
subject  to  taxation  although  two  other  trustees  were  residents;   People  ex  rel. 
Stebbins  v.  Purdy,  69  Misc.  368,   125  N.  Y.  Supp.   986,  to  the  point  that  tax 
laws   make   careful    distinction    between    owners    of    property   and    persons    who 
merely  hold  property  as  agents,  executors  or  trustees. 

Cited  in  notes  (16  L.  R.  A.  732)  on  situs  for  purpose  of  taxation  of  debts 
evidenced  by  notes  and  mortgages;  (20  L.  R.  A.  153)  on  place  of  taxation  of 
trust  property;  (62  Am.  St.  Rep.  467)  on  situs  of  personal  property  for  purposes 
of  taxation;  (44  L.  ed.  U.  S.  177)  on  situs  for  taxation  of  debts  evidenced  by 
notes  or  mortgages  held  by  agent  residing  in  different  state  from  principal. 

Distinguished  in  People  ex  rel.  Brewster  v.  Barker,  8  Misc.  34,  28  N.  Y. 
Supp.  651,  holding  property  of  estate  taxable  in  county  where  physically  held 
under  executor's  agreement. 

7  L.  R.  A.  409,  SCHUYLKILL  RIVER  E.  S.  R.  CO.  v.  KERSEY,  133  Pa.  234, 

19  Am.  St.  Rep.  632,  19  Atl.  553. 
Eminent    domain;    consequential    damages. 

Cited  in  Ehret  v.  Schuylkill  River  E.  S.  R.  Co.  151  Pa.  167,  30  W.  N.  C.  566, 

24  Atl.    1068,   holding   damages   for   taking   leasehold   under   power   of   eminent 
domain  may  include  value  of  lease  for  special  purpose  of  lessee,  and  consequent 
expense  incurred  by  lessee  from  land  being  taken;  Arkansas  Valley  &  W.  R.  Co. 
v.  Witt,  19  Okla.  272,  13  L.R.A.(N.S.)   243,  91  Pac.  897;   Blunck  v.  Chicago  & 
N.  W.  R.  Co.  142  Iowa,  154,  120  N.  W.  737,— holding  landowner  is  entitled  to 
be  paid  not  merely  for  value  of  land  taken  but  for  all  incidental  injuries  which 
must  necessarily   result   from   the   proper   construction   and   maintenance  of  the 
road;    James   McMillin   Printing   Co.   v.   Pittsburg,   216   Pa.   511,   65   Atl.   1091, 
holding   where   a   building    is   condemned   the   cost   to   the   tenant   of    removing 
machinery  may  be  considered  as  bearing  on  the  value  of  the  leasehold  interest; 
William  H.  Moudy  Mfg.  Co.  v.  Pennsylvania  R.  Co.  212  Pa.   160,  61  Atl.  906,. 
as  to  elements  of  disadvantage  and  burden  imposed  upon  the  land  as  a  direct 
and  necessary  result  of  location  of  railroad  upon  it  being  element  of  damages : 
North  Coast  R.  Co.  v.  Kraft  Co.   63  Wash.  262,   115   Pac.  97,  holding  that  in 
proceedings  to  condemn  leasehold  evidence  as  to  expense  of  moving  and  damage 
to  fixtures  is  admissible  as  showing  value  of  unexpired  term. 

Cited  in  footnote  to  Jacksonville,  T.  &  K.  W.  R.  Co.  v.  Adams,  14  L.  R.  A. 
533,  which  holds  value  of  improvements  put  upon  land  by  railroad  unlawfully 
taking  possession,  cannot  be  considered  in  estimating  damage  on  subsequent 
condemnation. 

Cited  in  note  ( 1 1  L.  R.  A.  605 )  on  market  price  an  element  of  damage. 

Distinguished  in  Re  Evergreen  Street,  1  Dauphin  Co.  Rep.  70,  holding  lease 
of  land  from  month  to  month,  without  privilege  of  removing  improvements,  does 
not  entitle  lessee  to  damages  upon  land  being  taken  for  street. 

7  L.  R.  A.  411,  ROYAL  INS.  CO.  v.  HELLER,  133  Pa.  152;  19  Atl.  349. 
Defenses   in   actions   ex   contractn. 

Cited  in  Bradly  v.  Potts,  33  W.  N.  C.  572,  2  Pa.  Dist.  R.  799,  holding  affi- 


1315  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  414 

davit  of  defense  necessary  in  all  actions  based  on  contract,  although  damages 

unliquidated. 

—  Insurance  ruse*. 

Cited  on  later  appeal  in  177  Pa.  265,  34  L.  R.  A.  601,  39  W.  N.  C.  62, 
35  Atl.  726,  Affirming  17  Pa.  Co.  Ct.  22,  4  Pa.  Dist.  R,  433,  holding  company 
not  relieved  from  any  part  of  liability  by  tenant's  receiving  from  landlord  sum 
received  by  latter  under  policy  taken  out  by  him. 

Distinguished  on  later  appeal  in   151   Pa.   105,  30  W.  N.  C.  546,  25  Atl.  83, 
holding  insurance  company  not  relieved  from  liability  to  indemnify  tenant  for 
loss    from    payment   of   rent   while   premises   uninhabitable,   by   agreement   that 
landlord  might  enter  and  rebuild. 
Construction  of  rent  insurance. 

Cited  in  note  (16  L.R.A.  (N.S.)   1055)  on  construction  of  rent  insurance. 

7  L.  R.  A.  412,  DUNCAN  v.  FLANAGAN,  133  Pa.  373,  19  Atl.  405. 
Right    to    relief    in    equity. 

Cited  in  note    (11  L,  R,  A.  458)    on  necessity  for  suitor  coming  into  equity 
with  clean  hands. 
Actions  for  contribution. 

Cited  in  note  (98  Am.  St.  Rep.  34)  on  actions  for  contribution  not  founded 
on  express  promise. 

7  L.  R.  A.  414,  ATCHISON,  T.  &  S.  F.  R,  CO.  v.  COCHRAN,  43  Kan.  225,  19 

Am.  St.  Rep.  129,  23  Pac.  151. 
Identity    of    corporations. 

Cited  in  White  v.  Pecos  Land  &  Water  Co.  18  Tex.  Civ.  App.  637,  45  S.  W. 
207,  holding  corporations  composed  of  same  persons,  and  operated  in  same  inter- 
est, not  necessarily  identical;  State  v.  Morgan's  L.  &  T.  R.  &  S.  S.  Co.  106  La. 
526,  31  So.  115,  and  Exchange  Bank  v.  Macon  Constr.  Co.  97  Ga.  7,  33  L.  R,  A." 
803,  25  S.  E.  326,  holding  ownership  by  corporation  of  capital  stock  of  another 
corporation  does  not  give  title  to  property,  nor  make  corporations  identical; 
Chase  v.  Michigan  Teleph.  Co.  121  Mich.  634,  80  N.  W.  717,  holding  transfer 
of  property  of  corporation  to  another  corporation  owning  nearly  all  of  former 
company's  stock,  not  conclusive  of  consolidation ;  State  ex  rel.  Coleman  v.  Inter- 
national Harvester  Co.  81  Kan.  615,  106  Pac.  1053,  holding  when  same  persona 
own  all  the  stock  in  two  corporations  such  corporations  do  not  lose  their  sepa- 
rate identity  and  become  merged;  State  ex  rel.  Tacoma  v.  Tacoma  R.  &  Power 
Co.  61  Wash.  513,  32  L.R.A.(N.S.)  727,  112  Pac.  506,  to  the  point  that  stock- 
holders and  officers  of  two  corporations  might  be  the  same  and  corporations 
different. 
Railroad  may  purchase  stock  of  another  railway  corporation. 

Cited  in  Kimball  v.  Atchison,  T.  &  S.  F.  R.  Co.  46  Fed.  889,  holding,  under 
law  of  Kansas,  purchase  by  railroad1  of  that  state  of  stock  of  parallel  road  in 
another  state,  not  invalid. 

Cited  in  notes   (9  L.R.A.  651)    on  power  of  corporation  to  purchase  stock  of 
other  corporations;    (36  Am.  St.  Rep.  141)   on  right  to  acquire  stock  in  another 
corporation. 
Liability  for  acts  of  agent  representing  several  railroads. 

Cited  in  Scott  v.  Cleveland,  C.  C.  &  St.  L.  R.  Co.  144  Ind.  133,  32  L.  R,  A. 
156,  43  N.  E.  133.  holding  railroad  not  liable  for  mistake  of  its  agent  in  sale 
of  ticket,  while  acting  as  agent  for  another  railroad. 

Cited  in  notes   (35  L.R.A. (N.S.)   771)   on  liability  of  railroad  possessing  stock 


7  L.R.A.  414]  L.  R.  A.  CASES  AS  AUTHORITIES.  1316 

control  of  another  for  its  acts  and  contracts;    (5  Eng.  Rul.  Cas.  463)   on  liability 
for  injuries  by  connecting  carrier,  in  absence  of  control  or  interest. 

7  L.  R.  A.  419,  PECKHAM  v.  LEGO,  57  Conn.  553,  14  Am.  St.  Rep.  130,  19  Atl. 

392. 
Effect  of  power  of  sale  in  will  to  enlarge  estate. 

Cited  in  Sill  v.  White,  62  Conn.  434,  20  L.  R.  A.  322,  26  Atl.  396,  holding 
that  coupling  power  of  sale  with  devise  of  life  estate  does  not  convert  life 
estate  into  greater  estate;  Security  Co.  v.  Pratt,  65  Conn.  181,  32  Atl.  396,  hold- 
ing that  unexecuted  power  of  sale  with  right  to  appropriate  proceeds  for  benefit 
of  life  estate  does  not  clothe  life  tenant  with  equitable  fee;  Mansfield  v.  Shelton, 
67  Conn.  394,  52  Am.  St.  Rep.  285,  35  Atl.  271,  holding  devise  to  use  devisee 
"without  any  restrictions  or  limitations  whatever,"  with  attempted  disposition 
of  remainder,  gives  first  taker  life  estate  only;  Little  v.  Geer,  69  Conn.  415, 
37  Atl.  1056,  holding  devise  of  use  and  income  of  estate,  with  power  to  sell  as 
devisee  "may  desire  for  her  comfort  and  maintenance,"  does  not  give  absolute 
estate;  Hull  v.  Halloway,  58  Conn.  217,  20  Atl.  445,  holding  devise  of  income  for 
life,  with  authority  to  use  so  much  of  principal  as  beneficiary  may  "require"  for 
personal  use,  gives  life  estate  only,  unless  personal  needs  of  beneficiary  require 
principal;  Bartlett  v.  Buckland,  78  Conn.  519,  63  Atl.  350,  holding  widow  ac- 
quiring under*  her  husband's  will  a  life  estate  in  his  land  with  power  of  sale 
provided  the  "use  and  improvement"  was  insufficient  for  her  support  might 
exercise  power  of  sale  without  order  of  court;  Russell  v.  Hartley,  83  Conn.  660, 
78  Atl.  320,  holding  that  court  of  equity  may  review  decision  of  trustee  in 
regard  to  extent  principal  should  be  used  where  discretion  conferred  by  will 
was  not  one  of  special  confidence. 

Cited  in  footnotes  to  Cornwell  v.  Wulff,  45  L.  R.  A.  53,  which  holds  absolute 
power  of  disposition  in  instrument  conveying  land  carries  full  power  in  land 
itself;  Roth  v.  Rauschenbusch,  61  L.  R.  A.  455,  which  holds  fee  simple  by  devise 
to  one  absolutely  and  forever,  not  cut  down  by  subsequent  provision  as  to  dis- 
position of  any  remainder  on  devisee's  death. 

Cited  in  notes  (9  L.R.A.  168)  on  devise  of  life  estate  to  wife;  (13  L.R.A. 
(N.S.)  461)  on  power  of  devisee  for  life,  with  power  to  consume,  to  convey 
good  title;  (23  Am.  St.  Rep.  410)  on  construing  devise  to  widow  as  estate  for 
life;  (139  Am.  St.  Rep.  88)  on  devise  or  bequest  for  life  with  power  of  disposal. 

Distinguished   in   Griffin   v.   Nichols,   224   Mo.   309,    123   S.   W.    1063,   holding 
bequest  of  testator  of  residue  of  estate  to  wife  with  power  to  make  necessary 
disposition  thereof  for  her  comfort  and  support  did  not  limit  her  power  of  sale 
to  her  life  estate. 
Construction    which    disposes    of    whole    estate    favored. 

Cited  in  Weed  v.  Scofield,  73  Conn.  677,  49  Atl.  22,  holding  construction  of 
will  which  would  result  in  partial  intestacy  should  be  avoided;  Tarrant  v. 
Backus,  63  Conn.  281,  28  Atl.  46,  holding  intention  of  testator  to  make  full 
disposition  of  estate,  and  avoid  intestacy  as  to  any  portion,  presumed;  Mallory 
v.  Mallory,  72  Conn.  500,  45  Atl.  164,  holding  devise  to  trustees  for  use  of 
beneficiary  for  life,  with  power  of  sale  and  appropriation  if  necessary  for  com- 
fort and  maintenance,  gives  residuary  devisee  equitable  remainder  in  fee;  Beers 
v.  Narramore,  61  Conn.  18,  22  Atl.  1061,  holding  devise  of  life  estate  in  "Old 
Mill  Quarry  property"  included  entire  tract  of  which  quarry  was  part. 

Cited  in  note  (55  Am.  St.  Rep.  310)  on  avoiding  construction  resulting  in 
partial  intestacy. 


1317  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  420 

Devise  or  bequest  by  Implication. 

Cited  in  note   (15  L.R.A.  (N.S.)   74)  on  devise  or  bequest  by  implication. 

7  L.  R.  A.  423,  SPAULDING  v.  BERNHARD,  76  Wis.  368,  20  Am.  St.  Rep.  75, 

44  N.  W.  643. 
Holidays. 

Cited  in  Deere  v.  Hodges,  59  Neb.  292,  80  N.  W.  897,  holding  approval  of 
appeal  bond  not  within  statute  prohibiting  transaction  of  "judicial  business" 
on  Sunday  or  legal  holiday;  State  v.  Duncan,  118  La.  707,  10  L.R.A.  (N.S.)  795, 
43  So.  283,  11  A.  &  E.  Ann.  Gas.  557,  holding  statutory  holidays  have  not  the 
sacredness  of  the  Sabbath  and  there  may  be  legal  business  transacted  on  a 
statutory  holiday  not  null,  if  there  is  silence  when  a  person  should  object  and 
speak. 

Cited  in  note  (19  L.  R.  A.  320)  on  how  far  law  of  holidays  extends  to  matters 
other  than  those  relating  to  negotiable  paper. 

7  L.  R.  A.  425,  ANONYMOUS,  89  Ala.  291,  18  Am.  St.  Rep.  116,  7  So.  100. 
Evidence;    physical    examination    of    person. 

Cited  in  Alabama  G.  S.  R.  Co.  v.  Hill,  90  Ala.  77,  9  L.  R,  A.  444,  24  Am.  St. 
Rep.  764,  8  So.  90,  holding  claimant  for  personal  injuries  of  internal  nature 
may  be  required  to  submit  to  physical  examination  by  physicians  under  direc- 
tion of  court;  Bunger  v.  Bunger,  85  Kan.  566,  117  Pac.  1017,  holding  that 
existence  of  impotency  as  ground  for  divorce  must  be  shown  by  best  evidence 
obtainable,  and  should  not  be  decided  against  party  unless  supported  by  testi- 
mony of  physician  who  made  examination. 

Cited  in  footnote  to  Alabama  G.  S.  R.  Co.  v.  Hill,  9  L.  R,  A.  442,  which  holds 
delicacy  and  refinement  of  feeling  not  ground  for  refusing  to  order  surgical 
examination  of  plaintiff. 

Cited   in  notes    (14  L.R.A.  466)    on  power  to  compel  plaintiff  to  submit  to 
physical  examination;    (68  Am.  St.  Rep.  251)  on  physical  examination  of  parties 
by  order  of  court. 
Impotency  as  ground  for  divorce. 

Cited  in  note  (116  Am.  St.  Rep.  244,  245)  on  impotency  as  ground  for  divorce. 
Implied  representations  In  contracts  to  marry. 

Cited  in  note    (44  Am.  St.  Rep.  383)   on  express  and  implied  representations 
in  contracts  to  marry. 
Validity  of  marriage. 

Cited  in  Bennett  v.  Bennett,  169  Ala.  621,  53  So.  986,  holding  that  physical 
incapacity  does  not  render  marriage  void  but  only  voidable. 

7  L.  R.  A.  426,  STATE  ex  rel.  ATTY.  GEN.  v.  SAVAGE,  89  Ala.  1,  7  So.  183. 
Intoxication. 

Cited  in  State  ex  rel.  Atty.  Gen.  v.  Robinson,  111  Ala.  485,  20  So.  30,  holding 
only  occasional  intoxication,  and  not  habitual  drunkenness,  of  probate  judge 
shown;  People  v.  Radley,  127  Mich.  630,  86  N.  W.  1029,  holding  charge  proper 
that  habitual  drunkenness  produced  a  disorderly  person;  Roden  v.  State,  136 
Ala.  90,  34  So.  351,  holding  intoxication  under  statute  to  mean  condition  pro- 
duced by  drink  in  which  mental  or  physical  faculties  are  interfered  with  or 
disturbed. 

Cited  in  notes  (28  L.  R.  A.  326)  on  sufficiency  of  evidence  before  grand  jury 
to  sustain  indictment ;  ( 28  .L.  R.  A.  35 )  on  concurrence  by  twelve  granti  jurors. 


7  L.R.A.  426]  L.  R.  A.  CASES  AS  AUTHORITIES.  1318 

"Habit." 

Cited  in  Marks  v.  Herren,  47  Ore.  608,  83  Pac.  385,  holding  word  "habitually" 
does  not  necessarily  imply  that  an  act  has  been  so  often  repeated  as  to  become 
a  "habit." 

7  L.  R,  A.  428,  GARRETTSON  v.  NORTH  ATCHISON  BANK,  39  Fed.  163. 
Certification   of  check  by  telegram. 

Reaffirmed  on  hearing  on  merits  without  special  discussion. 

Cited  in  First  Nat.  Bank  v.  Commercial  Sav.  Bank,  74  Kan.  613,  8  L.R.A. 
(N.S.)  1152,  118  Am.  St.  Rep.  340,  87  Pac.  746,  11  A.  &  E.  Ann.  Gas.  281, 
holding  certification  shown  by  the  telegraphic  inquiry,  "Is  J.  F.  Donald's  check 
on  you  $360  good  ?"  and  a  response  "J.  F.  Donald's  check  is  good  for  sum  named." 
Negotiable  paper;  estoppel  to  deny  liability. 

Second  appeal  in  2  C.  C.  A.  145,  4  U.  S.  App.  557,  51  Fed.  168,  Affirming  47 
Fed.  871,  holding  certification  of  bill  as  '"good"  amounts  to  appropriation  of 
fund  for  drawer,  and  obligation  of  drawee  to  parties  acting  thereon  is  irre- 
vocably fixed. 

Cited  in  note  (23  L.  R,  A.  836)  on  liability  of  bank  as  accommodation  in- 
dorser. 

Distinguished  in  Hollins  v.  Hubbard,   165  N.  Y.   544,  59  N.  E.   317,  holding 
commission  merchants  promising  to  deliver  bills  of  lading  "next  week"  without 
disclosing  lien  thereon,  does  not  estop  them  claiming  lien  as  against  bank  paying 
draft  in  reliance  upon  promise. 
Statute   of   frauds;    telegrams. 

Cited  in  note    (50  L.  R.  A.  247)    on  telegrams  as  writings  to  make  contract 
within  statute  of  frauds. 
Acceptance   of  check  by  bank. 

Cited  in  notes  (118  Am.  St.  Rep.  352)  on  what  amounts  to  acceptance  of 
check  at  bank;  (4  Eng.  Rul.  Gas.  242)  on  right  of  drawee  only  to  accept  bill  of 
exchange. 

7  L.  R.  A.  431,  DATZ  v.  CLEVELAND,  52  N.  J.  L.  188,  19  Atl.  17,  20  Atl.  317. 
Constitutional    law  —  Local    or    special    legislation. 

Cited  in  State,  McLaughlin,  Prosecutor,  v.  Newark,  57  N.  J.  L.  300,  30  Atl. 
543,  holding  act  "providing  for  establishment  of  wards  in  cities  of  first  class" 
constitutional;  State,  Johnson,  Prosecutor,  v.  Asbury  Park,  58  N.  J.  L.  608, 
33  Atl.  850,  holding  act  providing'  for  licenses,  relating  only  to  boroughs,  con- 
stitutional; Eckerson  v.  Des  Moines,  137  Iowa,  471,  115  N.  W.  177,  holding  acts 
creating  or  having  relation  to  a  created  class  of  municipal  organizations  are  not 
for  that  reason  to  be  denounced  as  falling  within  the  constitutional  prohibition; 
State  ex  rel.  McCarthy  v.  Queen,  76  N.  J.  L.  146,  69  Atl.  30,  on  the  validity 
of  an  act  providing  for  appointment  of  officers  in  first  class  cities. 

Cited  in  footnotes  to  State  v.  Elizabeth,  23  L.  R.  A.  525,  which  holds  invalid 
special  statute  discriminating  between  municipalities  already  having  and  those 
not  having  racecourse;  Hamilton  County  v.  Rasche  Bros.  19  L.  R.  A.  584.  which 
holds  statute  as  to  taxes  not  applying  to  all  parts  of  state  unconstitutional ; 
Milwaukee  County  v.  Isenring,  53  L.  R.  A.  635,  which  holds  act  regulating 
sheriff's  fees  for  particular  county,  local. 
Option  legislation. 

Cited  in  Landis  v.  Ashworth,  57  N.  J.  L.  512,  31  Atl.  1017,  holding  act  dele- 
gating power  to  each  district  to  determine  amount  to  be  raised  by  tax  for  school 
purposes,  constitutional;  Kennedy  v.  Belinar,  61  X.  J.  L.  21,  38  Atl.  756,  holding 


1319  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  431 

act  not  operative  in  any  borough  unless  accepted  by  majority  vote,  constitutional ; 
State,  Lowthrop,  Prosecutor,  v.  Trenton,  61  N.  J.  L.  487,  40  Atl.  442,  holding  law 
of  which  local  operation  depends  on  voters'  consent,  constitutional;  State  v. 
Clayton,  53  N.  J.  L.  280,  21  Atl.  1026,  holding  act  providing  for  incorporation 
of  any  township  or  part  thereof,  having  certain  area  and  population,  at  option 
of  electors,  constitutional;  State,  Morris,  Prosecutor,  v.  Bayonne,  53  N.  J.  L.  303, 
21  Atl.  453,  holding  act  granting  powers  to  be  exercised  at  option  of  municipality, 
constitutional;  Allison  v.  Corker,  67  N.  J.  L.  603,  60  L.  R.  A.  568,  52  Atl.  362, 
holding  act  providing  for  division  of  townships  into  road  districts,  imposing 
condition  of  local  acceptance,  constitutional;  Adams  v.  Beloit,  105  Wis.  373, 
47  L.  R.  A.  446,  81  N.  W.  869,  upholding  statute  giving  cities  incorporated 
under  special  charters  option  to  adopt  provisions  of  general  statute;  State  ex  rel. 
Fire  Comrs.  v.  Trenton,  53  N.  J.  L.  570,  22  Atl.  731,  holding  diversity  of  govern- 
ment flowing  from  grant  of  powers  exercisable  at  option  of  locality  does  not  in- 
validate act;  State,  Noonan,  Prosecutor,  v.  Hudson  County,  52  N.  J.  L.  402, 
20  Atl.  255,  holding  act  providing  for  exercise  at  discretionary  power  in  layin» 
out  highways,  occasioning  diversities  in  application,  constitutional ;  Albright  v. 
Sussex  County  Lake  &  Park  Commission,  68  N.  J.  L.  531,  53  Atl.  612,  holding  act 
providing  for  adoption  of  benefits  by  referendum  not  unconstitutional  because  one 
county  may  adopt  and  another  reject;  State  ex  rel.  Herrick  v.  Hoos,  61  X.  J.  L. 
464,  39  Atl.  656,  to  point  that  act  providing  for  contract  of  water  department 
had  been  accepted  by  voters  of  city;  Bryan  v.  Voss,  143  Ky.  426,  136  S.  W.  884, 
holding  that  legislature  may  make  law  which  is  to  take  effect  upon  its  adoption 
by  city;  Jersey  City  Supply  Co.  v.  Jersey  City,  71  N.  J.  L.  635,  60  Atl.  381, 
2  A.  &  E.  Ann.  Cas.  507,  on  the  adoption  by  Jersey  City  of  an  act  entitled  "An 
act  concerning  the  government  of  cities  of  this  state;  Wilson  ex  rel.  Booth  v. 
McGuinness,  78  N.  J.  L.  381,  75  Atl.  455,  to  the  point  that  legislature  may 
make  laws  to  become  effective  upon  adoption  by  municipality. 

Distinguished  in  De  Hart  v.  Atlantic  City,  63  N.  J.  L.  227,  43  Atl.  742,  Re- 
versing 62  N.  J.  L.  587,  41  Atl.  687,  holding  act  providing  for  establishment  of 
district  courts  in  cities  with  20,000  population  or  less  which  adopt  act  within 
three  months,  unconstitutional :  State  ex  rel.  Childs  v.  Copeland,  66  Minn.  320, 
34  L.  R.  A.  780,  61  Am.  St.  Rep.  410,  69  N.  W.  27,  holding  law  granting  charter 
powers  to  cities  of  certain  class,  to  take  effect  only  upon  adoption  by  each  city, 
unconstitutional;  Robt.  J.  Boyd  Paving  &  Contracting  Co.  v.  Ward,  28  C.  C.  A. 
672,  55  U.  S.  App.  730,  85  Fed.  32,  holding  act  conferring  certain  powers  on 
such  cities,  not  possessing  them  under  general  laws,  as  should  adopt  its  pro- 
visions, unconstitutional:  State  ex  rel.  Renner  v.  Holmes,  68  N.  J.  L.  194,  53  Atl. 
76,  holding  act  to  reorganize  boards  of  freeholders  rendered  unconstitutional  by 
provision  requiring  proceedings  for  adoption  to  be  initiated  before  certain  date. 
Effect  of  non-optional  general  law. 

Distinguished  in  State  v.  Bayonne,  56  N.  J.  L.  299,  28  Atl.  713,  holding  act 
directing   mode    of   making   sewer   assessments   in   cities   without   provision    for 
optional  acceptance  supersedes  charter  provisions. 
Validity   of  action   of  absent   mayor's   representative. 

Cited  in  State,  Williams,  Prosecutor,  v.  Bayonne,  55  N.  J.  L.  64,  25  Atl.  407, 
holding  officer  upon  whom  absent  mayor's  duties  devolve  may  sign  licenses. 
Legislative   power  to  remedy   defective  act  by  amendment. 

Cited  in  State,  Glen  Ridge,  Prosecutor,  v.  Stout,  58  N.  J.  L.  602,  33  Ati.  858; 
State  ex  rel.  Wheeler  v.  Stuht.  52  Neb.  220.  71  X.  W.  941,  holding  inadequate 
grant  to  city  of  powers  of  government  may  be  remedied  by  subsequent  legisla- 
tion; Rutten  v.  Paterson,  73  N.  J.  L.  477,  64  Atl.  573,  holding  the  power  to 


7  L.R.A.  431]  L.  R.  A.  CASES  AS  AUTHORITIES.  1320 

validate  defective  proceedings  does  not  authorize  the  employment  of  a  validating 
act   as   a   means   of   regulating   the   internal   affairs   of   a   city,   if   such   act  be 
special  and  local. 
—  to  provide  for  determination  of  election  contests. 

Cited  in  Re  Lemoyne,  15  Pa.  Dist.  R.  245,  on  power  of  legislature  to  provide 
for  determination  of  controversies  relating  to  elections. 

Constitutional    prohibition    ag-ainst    incorporating    existing:    law    In    sub- 
sequent  act    by   reference    thereto. 

Cited  in  Re  Haynes,  54  N.  J.  L.  26,  22  Atl.  923,  holding  act  providing  com- 
missioners "shall  have  powers  and  capacities  theretofore  vested  by  existing  legis- 
lation" in  certain  other  officers,  constitutional. 

7  L.  R.  A.  435,  DELAWARE,  L.  &  W.  R.  CO.  v.  TRAUTWEIN,  52  N.  J.  L.  169, 

19  Am.  St.  Rep.  442,  19  Atl.  178. 
Carrier's   duties   to   passengers    independent    of   contract. 

Cited  in  New  York,  L.  E.  &  W.  R.  Co.  v.  Ball,  53  N.  J.  L.  286,  21  Atl.  1052, 
holding  independent  of  contract,  railroad  under  obligation  to  take  due  and  rea- 
sonable care  for  safe  carriage  of  passenger;  Pennsylvania  R.  Co.  v.  Knight,  58 
N.  J.  L.  288,  33  Atl.  845,  holding  duty  of  safe  carriage  arising  from  relation  of 
passenger  and  carrier,  independent  of  contract,  applicable  to  both  passenger  and 
baggage;  Exton  v.  Central  R,  Co.  62  N.  J.  L.  13,  56  L.  R.  A.  511,  42  Atl.  486, 
holding  person  entering  waiting  room  for  ferry  boat  of  railroad  is  passenger; 
Xewbury  v.  Luke,  68  N.  J.  L.  190,  52  Atl.  625,  holding  Sunday  hiring  no  defense 
to  action  for  damages  for  overdriving  horse;  McNeill  v.  Durham  &  C.  R.  Co. 
135  N.  C.  690,  47  S.  E.  765,  holding  railroad  company  liable  to  one  injured 
through  its  negligence  while  unlawfully  riding  on  a  pass;  Gabbert  v.  Hackett, 
135  Wis.  93,  14  L.R.A.(N.S.)  1073,  115  N.  W.  345,  holding  policeman  entering 
car  in  good  faith  believing  that  he  had  right  to  ride  free  was  a  passenger  though 
ordinance  requiring  free  transportation  may  have  been  void;  McXeill  v.  Durham 
&  C.  R  Co.  135  N.  C.  682,  67  L.R.A.  233,  47  S.  E.  765,  holding  a  gratuitous 
passenger  entitled  to  recover  for  injuries  resulting  from  negligence  of  carrier; 
Schuyler  v.  Southern  P.  Co.  37  Utah,  607,  109  Pac.  458,  holding  that  relation 
of  carrier  and  passenger  may  exist  independent  of  any  contract  between  parties 
for  transportation. 

Cited  in  notes   (13  L.R.A.  95)   on  duty  of  raihvay  conductor  in  stopping  and 
starting   trains;     (35   L.   ed.   U.   S.   921)    on   negligence   of   railroad   companies 
toward  passengers. 
Safety  of  ingress  and   egress   to  and   from   depots  and   trains. 

Cited  in  Girton  v.  Lehigh  Valley  R.  Co.  17  Pa.  Super.  Ct.  149,  holding  pas- 
sengers have  right  to  assume  that  wray  provided  for  passage  from  train  to  depot 
reasonably  safe;  Exton  v.  Central  R,  Co.  62  N.  J.  L.  13,  56  L.  R.  A.  511,  42  Atl. 
486,  holding  railroad  must  use  reasonable  care  to  prevent  injury  to  passenger 
using  usual  passageway  to  baggage  room;  Collins  v.  Toledo,  A.  A.  &  N.  M.  R. 
Co.  80  Mich.  395,  45  N.  W.  178,  holding  where  depot  platform  not  provided  with 
steps,  railroad  liable  for  injury  arising  from  use  of  plank  provided  by  public: 
Falk  v.  New  York,  S.  &  W.  R.  Co.  56  N.  J.  L.  383,  29  Atl.  157,  holding  stopping 
train  on  trestle  in  night  time  without  lights,  and  without  warning  to  passengers 
or  offer  of  assistance  in  alighting,  is  negligence;  Atchison,  T.  &  S.  F.  R.  Co. 
v.  Jandera,  24  Okla.  113,  24  L.R.A. (N.S.)  539,  104  Pac.  339,  20  Ann.  Cas.  316, 
holding  that  railroad  is  liable  for  injury  to  person  upon  its  premises  for  purpose 
of  mailing  letter,  caused  by  defective  condition  station  grounds;  Yetter  v. 
Gloucester  Ferry  Co.  76  N.  J.  L.  250,  69  Atl.  1079,  holding  responsibility  for 


13*1  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  435 

safety  of  passenger  does  not  cease  upon  her  landing  upon  the  pier;  Bottum  v. 
Hawks,  84  Vt.  385,  35  L.R.A.(N.S.)  448,  79  Atl.  858,  to  the  point  railroad  was 
liable  to  passenger  who  was  injured  on  defective  stairway  leading  to  street, 
which  was  built  by  private  persons;  Carter  v.  Rockford  &  Interurban  R.  Co. 
147  Wis.  89,  132  N.  VV.  598,  holding  that  railroad  is  liable  for  injuries  to 
passenger  caused  by  defective  steps  leading  from  platform  to  street  even  though 
such  steps  were  built  and  repaired  by  third  persons. 

Cited  in  footnote  to  Herrman  v.  Great  Northern  R,  Co.  57  L.  R.  A.  390,  which 
holds  railroad  company  liable  for  injury  to  passenger  from  unsafe  condition  of 
depot  premises  leased  of  union  depot  company  or  its  receiver. 

Cited  in  notes  (20  L.  R.  A.  520)  on  mea*ure  of  care  carrier  must  exercise  to 
keep  platforms  and  approaches  safe;  (16  L.  R_  A.  593)  on  duty  of  carrier  to 
maintain  safe  approaches  beyond  premises;  (11  L.  R,  A.  721)  on  liability  of 
railroad  for  injuries  from  defective  platform;  (23  L.R.A. (N.S. )  634)  on  right 
of  passenger  using  approach  to  station  provided  by  carrier;  (33  L.R.A.  (X.S.) 
864)  on  degree  of  care  toward  passenger  at  station;  (26  Am.  St.  Rep.  817)  on 
duty  to  provide  safe  means  of  access  to  and  from  railway  depot. 

Distinguished  in  Devoe  v.  New  York,  O.  &  W.  R.  Co.  63  N.  J.  L.  280,  43  Atl. 
899,  holding  acquiescence  of  railroad  in  use  of  way  made  by  passengers  across 
tracks  to  railroad  creates  no  duty  except  to  refrain  from  wilful  injuries. 
Invitation   to   use   Tray. 

Cited  in  Furey  v.  New  York  C.  &  H.  R,  R.  Co.  67  N.  J.  L.  276,  51  Atl.  505, 
holding  opening  left  between  cars  as  convenience  for  loading  and  unloading,  not 
invitation  to  use  same  as  passageway;  Haselton  v.  Portsmouth,  K.  &  Y.  Street 
R.  Co.  71  N.  H.  591,  53  Atl.  1016,  holding  practice  of  street  railway  to  receive 
and  discharge  passengers  at  platform  not  constructed  by  it,  invitation  to  use  it 
in  getting  on  and  off  cars;  Rainey  v.  Grand  Trunk  R.  Co.  84  Vt.  526,  80  Atl. 
723,  to  the  point  that  open  vestibule  door  might  be  considered  invitation  to 
passenger  to  enter  train  or  alight  therefrom  at  station. 

Cited  in  footnote  to  Cotant  v.  Boone  Suburban  R.  Co.  69  L.R.A.  982,  which 
holds  railroad  company  inviting  passengers  to  use  stile  over  wire  fence  in  leaving 
grounds  bound  to  use  at  least  ordinary  care  to  see  that  it  is  fit  for  the  purpose 
intended. 
Use   of   unsafe   way   tvhen   another   provided. 

Cited  in  Phillips  v.  Burlington  Library  Co.  55  N.  J.  L.  318,  27  Atl.  478,  holding 
person  using  exit  made  unsafe  by  owner  not  precluded  from  recovering  for  injury 
because  of  existence  of  another  and  safer  way;  Schlessinger  v.  Manhattan  R. 
Co.  49  Misc.  505,  98  N.  Y.  Supp.  840,  holding  the  duty  applies  to  guard  against 
injury  where  an  approach  constructed  by  the  city  is  constantly  and  notoriously 
used  though  the  company  maintains  its  own  approach;  Cotant  v.  Boone  Suburban 
R.  Co.  125  Iowa,  51,  69  L.R.A.  984,  99  N.  W.  115,  holding  the  duty  to  use 
ordinary  care  exists  where  a  stile  put  up  by  third  party  over  fence  separating 
company's  property  is  constantly  used  in  approaching  station  grounds  to  knowl- 
edge of  company. 
Contributory  negligence. 

Cited  in  Atlantic  City  R.  Co.  v.  Goodin,  62  N.  J.  L.  396,  45  L.  R.  A.  673,  72 
Am.  St.  Rep.  652,  42  Atl.  333,  holding  passenger  alighting  from  train  not  under 
obligation  to  look  and  listen  before  crossing  track  leading  to  station. 
Sunday    lavrs. 

Cited  in  footnotes  to  Gross  v.  Miller,  26  L.  R.  A.  605,  which  holds  violation  of 
Sunday  law  by  hunting  no  defense  to  action  for  negligent  injury;  Dugan  v. 
-State,  9  L.  R,  A.  321,  which  holds  pilot  on  boat  carrying  pleasure  parties  on 


7  L.R.A.  435]  L.  E.  A.  CASES  AS  AUTHORITIES.  1322 

Sunday,   punishable;   Van  Auken   v.   Chicago  &   W.  M.   R,   Co.   22  L.  R.  A.   33r 
which  holds  riding  home  from  station  quietly  on  Sunday  evening  not  labor. 

Cited  in  note  (36  L.R.A.  (X.S.)  548)  on  violation  of  Sunday  law  as  defense 
to  action  for  personal  injuries. 

Right  to  recover  on  ground  Independent  of  act  declared  illegal- 
Cited  in  Brennan  v.  United  Hatters,  73  N.  J.  L.  740,  9  L.R.A.  (X.S.)  259, 
118  Am.  St.  Rep.  727,  65  Atl.  365,  9  A.  &  E.  Ann.  Cas.  698,  holding  where 
party  enters  into  an  agreement  void  because  contrary  to  public  policy,  his  right 
to  recover  upon  a  ground  of  action  existing  independent  of  the  agreement  is 
not  overthrown  by  operation  of  the  maxim  in  pari  delicto;  Easton  Nat.  Bank 
v.  American  Brick  &  Tile  Co.  70  N.  J.  Eq.  747,  8  L.R.A.  (X.S.)  279;  64  Atl.  917, 
holding  the  right  of  one  as  a  creditor  remains  unimpaired  though  he,  as  stock- 
holder and  officer,  participates  in  an  issue  of  stock  void  on  ground  of  public 
policy;  Warren  v.  Pirn,  66  N.  J.  Eq.  399,  59  Atl.  773,  on  right  to  recover  inde- 
pendent of  illegal  agreement. 

7  L.  R.  A.  439,  DEVOL  v.  DYE,  123  Ind.  321,  24  N.  E.  246. 
Gifts;    delivery   essential  to. 

Cited  in  Gammon  Theological  Seminary  v.  Robbins,  128  Ind.  93,  12  L.  R.  A. 
508,  footnote  p.  506,  27  X.  E..  341.  which  holds  instrument  declaring  that  holder 
gives  note  which  he  retains  insufficient  as  gift;  Anderson  v.  Anderson,  126  Ind. 
67,  24  N".  E.  1036,  holding  signed  and  acknowledged  deeds  retained  by  grantor, 
without  effort  to  deliver,  pass  no  title;  Smith's  Estate,  23  Lane.  L.  Rev.  14. 
holding  that  delivery  of  note  to  university  is  not  executed  gift  of  money  and 
is  void  on  death  of  maker  before  payment;  Scott  v.  Union  &  Planters'  Bank 
&  T.  Co.  123  Tenn.  296,  130  S.  W.  757,  holding  that  gift  causa  mortis  was 
consummated  where  certificate  of  deposit  was  indorsed  by  owner  to  donee,  in 
contemplation  of  death,  and  was  also  indorsed  by  donee  and  given  to  third 
person  to  cash,  but  where  donor  died  before  payment. 

Cited  in  notes  (11  L.  R,  A.  684)  on  delivery  and  retention  essential  to  validity 
of  gift;    (21   L.  R.   A.   695)    on  undelivered  written  transfer  or  assignment  of 
property  as   a  gift;    (99   Am.   St.   Rep.   892,   894,   900)    on  gifts   causa  mortis: 
(9  Eng.  Rul.  Cas.  866)   on  requisites  of  donatio  causa  mortis. 
"What    delivery    sufficient. 

Cited  in  Martin  v.  McCullough,  136  Ind.  338,  34  N.  E.  819,  holding  delivery  to 
one  of  several  beneficiaries  in  behalf  of  all  constitutes  him  trustee  for  donees; 
Bickford  v.  Mattocks,  95  Me.  551,  50  Atl.  894,  holding  delivery  of  note,  subse- 
quently returned  to  agent,  to  send  to  donee,  does  not  constitute  valid  gift;  Caylor 
v.  Caylor,  22  Ind.  App.  672,  72  Am.  St.  Rep.  331,  52  N.  E.  465.  holding  direction 
to  third  person  to  deliver  property  in  his  possession  to  donee  constitutes  valid 
gift;  Hogan  v.  Sullivan,  114  Iowa.  460.  87  N.  W.  447,  holding  bank  deposit  in 
third  person's  name,  followed  by  directions  as  to  distribution  just  before  donor's 
death,  constitutes  valid  gift;  Goelz  v.  People's  Sav.  Bank,  31  Ind.  App.  73,  07  X. 
E.  232.  holding  deposit  in  bank  for  and  in  name  of  donee,  passbook  in  donee's 
name  being  retained  by  donor  until  death,  valid  gift  inter  vivos ;  Deneff  v.  Helms, 
42  Or.  165,  70  Pac.  390,  holding  direction  that  deposits  be  delivered  to  certain 
person,  complied  with  same  day.  donor  dying  next  day,  valid  gift  causa  mortis: 
Waite  v.  Grubbe,  43  Or.  411,  73  Pac.  206,  holding  taking  of  donee  to  whereabouts 
of  buried  money  indicating  definitely  where  concealed,  sufficient  delivery;  John- 
son v.  Colley,  101  Va.  420,  99  Am.  St.  Rep.  884,  44  S.  E.  721,  holding  third  per- 
son receiving  gift  causa  mortis  for  donee  trustee  of  latter:  Keyes  v.  Meyers. 
147  Cal.  706.  82  Pac.  304,  holding  where  deed  is  delivered  in  escrow  to  satisfy 
claim  of  creditor  with  conditional  agreement,  it  did  not  take  effect  as  a  present 


1323  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  442 

conveyance;  Varley  v.  Sims,  100  Minn.  337,  8  L.R.A.  (N.S.)  830,  117  Am.  St. 
Rep.  694,  111  N.  W.  269,  10  A.  &  E.  Ann.  Gas.  473,  holding,  unless  the  contrary 
appears,  the  persons  to  whom  delivery  is  made  takes  as  the  trustee  of  the  donee; 
Hamlin  v.  Hamlin,  59  Wash.  189,  109  Pac.  362,  holding  that  delivery  of  written 
assignment  of  note  and  mortgage  to  assignee,  and  never  thereafter  having  do- 
minion over  same,  was  sufficient  delivery  of  gift  causa  mortis;  Talbot  v.  Talbot, 
32  R.  I.  91,  78  Atl.  535,  Ann.  Cas.  1912C,  1221,  holding  that  deposit  of  stock 
certificate  in  safe  deposit  box  together  with  instruments  signed  by  testator, 
purporting  to  create  trusts  in  favor  of  beneficiary  constituted  sufficient  delivery. 

Cited  in  footnotes  to  Porter  v.  Woodhouse,  13  L.  R.  A.  64,  which  holds  war- 
ranty deeds  not  delivered  by  donor  giving  to  third  person;  Peck  v.  Rees,  13  L.  R, 
A.  714,  which  holds  delivery  of  deed  by  donor  to  own  agent  insufficient. 

Cited  in  notes  ( 18  L.  R.  A.  170,  171 )  on  sufficiency  of  constructive  delivery  to 
sustain  gift  causa  mortis;  (40  L.  R.  A.  (N.  S. )  905),  on  transfer  of  key  to  re- 
ceptacle as  sustaining  gift  of  contents. 

Distinguished  in  Stokes  v.  Sprague,  110  Iowa,  97,  81  N.  W.  195,  holding  state- 
ment of  intention  to  give,  and  promise  of  third  person  to  deliver,  without  sur- 
rendering possession  of  notes,  not  valid  gift;  Telford  v.  Patton,  144  111.  621,  33 
N.  E.  1119,  holding  taking  certificate  of  deposit  in  another's  name,  unaccompanied 
by  declaration  of  trust,  retained  by  depositor,  no  gift. 

Disapproved  in  effect  in  Bieber  v.  Borekmann,  70  Mo.  App.  508,  holding  de- 
livery by  sick  person  to  agent,  with  instructions  to  deliver  only  in  case  of  death, 
not  valid  gift. 
Sufficiency  of  acceptance. 

Cited  in  Re  Podhajsky,  137  Iowa,  747,  115  N.  W.  590,  holding  act  of  trustee 
or  third  person  receiving  property  for  benefit  of  donee  is  deemed  to  be  in  the 
interest  of  the  latter,  and  acceptance  of  gift  is  presumed;  Foley  v.  Harrison, 
233  Mo.  562,  136  S.  W.  354,  to  the  point  that  acceptance  by  donee  is  presumed 
where  there  has  been  delivery  to  trustee  for  his  benefit,  the  gift  being  beneficial. 
Competency  of  evidence  us  affected  by  interest  in  litigation. 

Cited  in  Doty  v.  Doty,  118  Ky.  214,  2  L.R.A.(N.S.)    716,  80  S.  W.  803,  4  A. 

6  E.  Ann.   Cas.   1064,  holding  a  guardian  of  an   infant,  a  party  to  the  action 
as  relator,  to  recover  under  a  contract  made  for  benefit  of  infant,  was  competent 

to  testifv  to  the  contract. 

• 

7  L.  R.  A.  442,  BORN  v.  FIRST  NAT.  BANK,  123  Ind.  78,  18  Am.  St.  Rep.  312, 

24  N.  E.  173. 
Checks,    effect    of   certification    on    drawer's    liability. 

Cited  in  Minot  v.  Russ,  156  Mass.  461,  16  L.  R.  A.  512,  32  Am.  St.  Rep.  472,  31 
X.  E.  489,  and  Oyster  &  Fish  Co.  v.  National  Lafayette  Bank,  51  Ohio  St.  Ill,  46 
Am.  St.  Rep.  560,  36  N.  E.  833,  holding  acceptance  of  certified  check  does  not 
release  drawer;  Head  v.  Hornblower,  156  Mass.  461,  16  L.  R.  A.  512,  31  N.  E. 
489;  Continental  Nat.  Bank  v.  Cornhauser,  37  111.  App.  480;  Meridan  Nat.  Bank 
v.  First  Nat.  Bank,  7  Ind.  App.  327,  52  Am.  St.  Rep.  450,  33  N.  E.  247, —  holding 
certification  of  check  in  holder's  hands  releases  drawer;  Smith  v.  Field,  19  Idaho, 
564,  114  Pac.  668,  Ann.  Cas.  1012C,  354,  to  the  point  that  certification  of  check 
in  itself  carries  with  it  no  evidence  of  solvency  of  bank;  Scheffenacker  v.  Hoopes, 
113  Md.  117,  29  L.R.A. (N.S.)  209,  77  Atl.  130,  holding  that  certification  of 
check  by  bank  operates  to  appropriate  funds  by  drawer  to  amount  of  check. 

Cited  in  notes  (12  L.  R.  A.  492)  on  effect  of  certification  of  checks;  ( 16  L.  R, 
A.  511)  on  effect  of  certification  of  check  on  liability  of  drawer;  (10  L.  R.  A. 
369)  on  substituted  obligation;  (9  L.R.A.  (N.S.)  698)  on  certification  of  check 


7  L.R.A.  442]  L.  R.  A.  CASES  AS  AUTHORITIES.  1324 

as  release  of  drawer  or  indorser;    (10  L.R.A.(N.S.)   536;   128  Am.  St.  Rep.  692, 
696,  697,  700)   on  effect  of  certification  of  check  on  drawer's  liability. 
What  constitutes  payment. 

Cited  in  Cox  v.  Hayes,  18  Ind.  App.  223,  47  N.  E.  844,  holding  delivery  of  check, 
in  absence  of  agreement,  does  not  extinguish  debt;  National  L.  Ins.  Co.  v.  Goble, 
51  Neb.  8,  70  N.  W.  503,  holding  in  absence  of  agreement,  remittance  of  bank 
draft  not  payment;  Williams  v.  Costello,  95  Ala.  593,  11  So.  9,  holding  order  of 
third  person,  in  absence  of  agreement,  not  payment  for  goods  sold;  Combs  v. 
Bays,  19  Ind.  App.  265,  49  N.  E.  358,  holding  giving  of  new  note,  in  absence  of 
agreement,  does  not  discharge  prior  note;  Baumgardner  v.  Henry,  131  Mich.  243, 
91  N.  W.  169,  holding  mere  mailing  of  check  not  payment  under  agreement  that 
payment  may  be  made  by  check;  Dille  v.  White,  132  Iowa,  333,  10  L.R.A.(N.S.) 
521,  109  N.  W.  909,  holding  one  accepting  a  bank  check  or  draft  as  a  means 
of  obtaining  money  pursuant  to  a  contract  for  a  loan,  does  not  assume  risk  of 
failure  of  bank;  Goshorn  v.  People's  Nat.  Bank,  32  Ind.  App.  430,  102  Am.  St. 
Rep.  248,  69  N.  E.  185,  holding  a  bank  liable  to  a  depositor  for  money  embezzled 
by  cashier,  notwithstanding  his  order  by  drawing  a  check,  with  instructions  to 
cashier  to  have  the  money  transferred  to  a  savings  company. 

Cited  in  footnotes  to  State  Bank  v.  Byrne,  21  L.  R.  A.  753,  which  holds 
drawee's  acceptance  of  draft  presented  by  collecting  bank  not  payment;  Bank  of 
Antigo  v.  Union  Trust  Co.  23  L.  R.  A.  611,  which  holds  bank  takes  risk  of  accept- 
ing check  in  payment  of  note  received  for  collection. 

Cited  in  notes  (9  L.R.A.  263)  on  acceptance  of  check  not  ipso  facto  payment; 
(10  L.R.A.(N.S.)  511,  512;  35  L.R.A.  (N.S.)  29)  on  payment  by  commercial 
paper. 

7  L.  R.  A.  445,  EXCHANGE  BANK  v.  TUTTLE,  5  N.  M.  427,  23  Pac.  241. 
Effect   on  note  of  provision   for  attorney's!   fees. 

Followed  in  Armijo  v.  Henry,  14  N.  M.  195,  25  L.R.A. (N.S.)  290,  89  Pac. 
305,  holding  stipulation  for  attorneys'  fees  enforceable. 

Cited  in  Sylvester  Bleckley  Co.  v.  Alewine,  48  S.  C.  311,  37  L.  R.  A.  88,  footnote 
p.  86,  26  S.  E.  609,  holding  promissory  note  with  provision  for  attorney's  fees 
non-negotiable. 

Cited  in  footnotes  to  Dorsey  v.  Wolff,  18  L.  R.  A.  428,  which  holds  negotiability 
not  destroyed  by  stipulation  for  10  per  cent  attorney's  fees;  Levens  v.  Briggs,  14 
L.  R.  A.  188,  which  holds  agreement  for  a  specified  percentage,  if  note  collected 
by  suit,  invalid;  Oppenheimer  v.  Farmers'  &  M.  Bank,  33  L.  R.  A.  767,  which 
holds  negotiability  of  note  not  affected  by  stipulation  for  attorneys'  fees  in- 
operative until  maturity  and  dishonor;  Pattillo  v.  Alexander,  29  L.  R.  A.  616, 
which  sustains  payee's  guaranty  of  attorney's  fees  if  note  has  to  be  collected  by 
law;  Farmers  Nat.  Bank  v.  Sutton  Mfg.  Co.  17  L.  R.  A.  595,  which  holds  negoti- 
ability of  bill  of  exchange  not  defeated  by  stipulation  for  attorneys'  fees  becoming 
operative  after  dishonor;  Bank  of  Commerce  v.  Fuqua,  14  L.  R.  A.  588,  which 
holds  provision  in  note  for  attorney's  fees  valid;  but  reasonableness  of  same  for 
court. 

Cited  in  note  (12  L.  R.  A.  140)  on  effect  on  note  of  stipulation  for  attorney's 
fees. 

7  L.  R.  A.  448,  EVANS  v.  EVANS,  43  Minn.  31,  44  N.  W.  524. 

7  L,  R.  A.  449,  POPPLETON  v.  YAMHILL  COUNTY,  18  Or.  377,  23  Pac.  253. 
Taxation    <>i     nonresident's    property. 

Approved  in  Savings  &  Loan  Soc.  v.  Multnomah  County,  169  U.  S.  426,  42  L. 


1325  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  451 

ed.  805,  18  Sup.  Ct.  Rep.  392,  upholding,  as  to  nonresident  mortgagee,  statute  for 
taxing  mortgage  and  debt  secured  thereby  to  mortgagee  as  real  estate  and  author- 
izing mortgagor  to  deduct  same;  New  Orleans  v.  Stempel,  175  U.  S.  319,  44  L. 
ed.  180,  20  Sup.  Ct.  Rep.  110,  holding  proceeds  of  nonresident's  securities  kept 
within  state  for  use,  subject  to  taxation  as  credits  arising  from  business  within 
etate,  at  business  domicil. 

Cited  in  Armour  Packing  Co.  v.  Augusta,  118  Ga.  553,  98  Am.  St.  Rep.  128, 
45  S.  E.  424,  holding  situs  of  negotiable  instruments  for  purposes  of  taxation, 
is  at  the  place  where  they  are  actually  situated;  Marshall  Wells  Hardware  Co. 
v.  Multnomah  County,  58  Or.  473,  135  Pac.  150,  holding  that  cash  and  accounts 
in  possession  of  branch  office  of  corporation  in  another  state  being  part  of 
business  of  this  state,  are  taxable  here;  State  v.  Fidelity  &  D.  Co.  35  Tex.  Civ. 
App".  222,  80  S.  W.  544,  holding  the  situs  of  property  used  and  employed  for 
carrying  on  business  of  company  located  in  state,  is  for  purposes  of  taxation 
in  the  state. 

Cited  in  notes  (16  L.R.A.  731,  732)  as  to  situs  for  purpose  of  taxation  of 
debts  evidenced  by  notes  and  mortgages;  (36  L.R.A. (N.S.)  300)  on  personal 
property  having  taxation  situs  elsewhere  as  subject  of  taxation  in  state  of 
owner's  domicil;  (44  L.  ed.  U.  S.  177)  on  situs  for  taxation  of  debts  evidenced 
by  notes  or  mortgages  held  by  agent  residing  in  different  state  from  principal. 

7  L.  R.  A.  451,  KINNAIRD  v.  STANDARD  OIL  CO.  89  Ky.  468,  25  Am.  St.  Rep. 

545,  12  S.  W.  937. 
Liability    for    injury    by    nuisance. 

Cited  in  Brady  v.  Detroit  Steel  &  Spring  Co.  102  Mich.  280,  26  L.  R.  A.  176,  60 
N.  W.  687,  holding  one  keeping  fuel  oil  liable  for  damage  produced  by  leakage 
and  foul  gases;  Beatrice  Gas  Co.  v.  Thomas,  41  Neb.  669,  43  Am.  St.  Rep.  711,  59 
N.  W.  925,  holding  one  liable  for  collecting  on  premises  matter  producing  damage 
to  neighbor's  well  by  percolation;  Cumberland  Teleg.  &  Teleph.  Co.  v.  United 
Electric  R.  Co.  93  Tenn.  516,  27  L.  R.  A.  242,  29  S.  W.  104,  holding  electric  rail- 
way company  liable  for  producing  unnatural  electric  condition  in  earth  by 
"leakage,"  damaging  contiguous  telephone  plant;  Cork  v.  Blossom,  162  Mass.  334, 
26  L.  R.  A.  259,  44  Am.  St.  Rep.  362,  38  N.  E.  495,  holding  one  maintaining  on 
premises  chimney  in  danger  of  falling  on  adjoining  lands  liable  for  improper 
construction;  Nebo  Consolidated  Coal  &  Coking  Co.  v.  Lynch,  141  Ky.  713,  133 
S.  W.  763,  holding  that  nuisance  is  anything  done  to  the  hurt  or  annoyance  of 
lands,  tenements  or  hereditaments  of  another  and  for  which  person  maintaining 
it  is  liable. 

Cited  in  notes  (8  L.  R.  A.  787)  on  damnum  absque  injuria;  (19  L.  R.  A.  96) 
on  rights  in  subterranean  waters  as  to  fouling  subterranean  water;  (15  L.R.A. 
(N.S.)  536)  on  liability  for  escape  of  dangerous  substance  stored  on  premises; 
(34  L.R.A.  (N.S.)  49)  on  underground  pollution  of  water;  (123  Am.  St.  Rep. 
575)  on  duty  and  liability  of  land  owners  to  adjoining  proprietors;  (10  Eng. 
Rul.  Cas.  243)  on  right  of  riparian  owner  to  purity  of  water. 

Distinguished  in  Letts  v.  Kessler,  54  Ohio  St.  84,  40  L.  R.  A.  185,  42  N.  E.  765, 
sustaining  right  to  erect  high  fence  shutting  off  light  and  air  from    house    of 
neighbor. 
—  Injury  from  natural  causes. 

Cited  in  Gilmore  v.  Royal  Salt  Co.  84  Kan.  733,  34  L.R.A. (N.S.)  54,  115 
Pac.  541,  holding  that  landowner  has  no  right  to  accumulate  upon  his  land 
refuse  matters  by  which  water  underlying  neighbor's  land,  and  feeding  springs 
thereon,  is  unfitted  for  ordinary  use. 


7  L.R.A.  451]  L.  R.  A.  CASES  AS  AUTHORITIES.  1326 

Cited  in  note  (1  Eng.  Rul.  Cas.  762)  on  nonliability  for  diminution  of  water 
on  adjoining  land  by  pumping  from  well  on  one's  own  land. 

Distinguished  in  Livezey  v.  Schmidt,  96  Ky.  443,  29  S.  VV.  25,  denying  liability 
for  injury  to  health  occasioned  by  drainage  into  cellar  from  natural  causes; 
Barnard  v.  Sherley,  135  Ind.  564,  24  L.  R.  A.  574,  41  Am.  St.  Rep.  454,  34  X.  E. 
600,  holding  one  using  water  from  artesian  well  not  liable  for  allowing  it  to  flow 
into  natural  watercourse;  Long  v.  Louisville  &  N.  R.  Co.  128  Ky.  32,  13  L.R.A. 
(N.S.)  1064,  107  S.  W.  203,  16  A.  &  E.  Ann.  Cas.  673,  holding  one  causing 
pollution  of  waters  of  stream  by  reason  of  burial  of  dead  animal  on  his  own 
land,  is  not  liable  unless  circumstances  show  lack  of  ordinary  prudence. 
—  Proof  required  for  abatement. 

Distinguished  in  Columbia  Aver  Sav.  Fund,  S.  D.  Title  &  T.  Co.  v.  Prison  Com- 
mission, 92  Fed.  803,  holding  reasonable  certainty  of  pollution  of  stream  must 
be  shown  before  injunction  will  issue. 
Liability   of  oil-land   lessee   »>r   negligence. 

Cited  in  footnote  to  Langenbaugh  v.  Anderson,  62  L.  R.  A.  948,  which  holds 
that  question  of  negligence  in  permitting  escape  of  oil,  which  caught  fire,  causing 
destruction  of  building,  should  have  been  submitted  to  jury. 
Negligence  as  affecting  action  of  nuisance. 

Cited  in  Haynor  v.  Excelsior  Spring  Light,  P.  H.  &  Water  Co.  129  Mo.  App. 
697,  108  S.  W.  580,  holding  in  an  action  for  pollution  of  a  stream,  manner  of 
throwing  refuse  in  stream  is  immaterial;  Brennan  Constr.  Co.  v.  Cumberland, 
29  App.  D.  C.  561,  15  L.R.A.(N.S.)  545,  10  A.  &  E.  Ann.  Cas.  865,  holding  one 
storing  quantities  of  oil  on  a  navigable  stream,  the  escape  of  which  is  bound 
to  pollute  water,  is  liable  for  any  injury  resulting,  regardless  of  negligence. 
What  are  percolating  waters. 

Cited  in  note  (67  Am.  St.  Rep.  672)   on  what  are  percolating  waters. 

7  L.  R.  A.  454,  McQUERRY  v.  GILLILAND,  89  Ky.  434,  12  S.  W.  1037. 
Election  to  take  nnder  will. 

Cited  in  Cooke  v.  Fidelity  Trust  &  Safety  Vault  Co.  104  Ky.  483,  47  S.  W.  325, 
holding  widow  accepting  provisions  of  husband's  will  relinquishes  claim  to  rest 
of  estate. 

Cited  in  footnote  to  Tripp  v.  Nobles,  67  L.R.A.  449,  which  holds  widow  offering 
for  probate  and  undertaking  to  carry  out  as  administratrix  with  the  will  an- 
nexed, husband's  will  devising  her  own  land  to  her  for  life  with  remainder  over 
and  an  additional  sum  of  money  estopped  to  assert  her  absolute  title  to  the  land. 

Cited   in  notes    (12  L.R.A.  227)    on  election  to  take  under  will  where  rights 
inconsistent;     (4   L.R.A.  (N.S.)    1066)    as   to   when   beneficiary    deemed   to   have 
elected  to  take  under  will  assuming  to  dispose  of  his  property. 
Nature  of  action  for  specific  performance  of  contract  to  convey  realty. 

Cited  in  Silver  Camp  Min.  Co.  v.  Dickert,   31  Mont.  492,  67   L.R.A.  942,  78 
Pac.  967,  3  A.  &  E.  Ann.  Cas.  1000,  holding  an  action  for  specific  performance 
of  contract  to  convey  realty  is  a  proceeding  in  personam. 
Jurisdiction  over  suits  affecting  foreign   realty. 

Cited  in  Gillen  v.  Illinois  C.  R.  Co.  137  Ky.  384,  125  S.  W.  1047,  to  the 
point  that  action  to  compel  conveyance  of  land  may  be  brought  in  this  state, 
although  land  lies  elsewhere;  Campbell  v.  \V.  M.  Ixilter  Lumber  Co.  140  Ky. 
314,  140  Am.  St.  Rep.  385,  131  S.  W.  20,  holding  that  action  by  landlord  against 
tenant  for  waste,  in  violation  of  contract  may  be  brought  wherever  tenant  may 
be  found:  Bowler  v.  First  Nat.  Bank,  21  S.  D.  460,  130  Am.  St.  Rep.  725,  113 
.N.  W.  618,  holding  that  state  court  has  jurisdiction  of  action  by  trustee  in. 


1327  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  459 

bankruptcy  to  vacate  deed  executed  by  bankrupt,  although  land  is  in  another 
state;  Rosenbaum  v.  Evans,  63  Wash.  510,  115  Pac.  1054,  holding  that  courts 
of  this  state  have  jurisdiction  of  action  to  reform  deed  of  land  in  another  state 
where  defendant  is  within  jurisdiction. 

Cited  in  note  (69  L.R.A.  679)  on  jurisdiction  of  equity  over  suits  affecting 
realty  in  another  state  or  country. 

7  L.  R.  A.  457,  BARTON  v.  UNION  CATTLE  CO.  28  Neb.  350,  26  Am.  St.  Rep. 

340,  44  N.  W.  454. 
Remedies  nuainst   nnisances. 

Cited  in  Love  v.  Prospect  Hill  Cemetery  Asso.  58  Neb.  107,  46  L.  R.  A.  242,  78 
X.  W.  488,  holding  private  nuisance  preventing  use  of  property  may  be  enjoined; 
Gleason  v.  Loose-Wiles  Cracker  &  Candy  Co.  88  Neb.  89,  129  N.  W.  173,  holding 
that  private  person  can  obtain  injunction  against  public  nuisance  only  when  he 
suffers  special  or  peculiar  injury  therefrom. 

Cited  in  note  (7  Eng.  Rul.  Cas.  485)  on  liability  to  indictment  or  injunction 
of  corporation  maintaining  nuisance. 

Distinguished  in  Hill  v.  Pierson,  45  Neb.  507,  63  N.  W.  835,  holding  right  of 
private  person  to  enjoin  public  nuisance  dependent  upon  proof  of  special  damage. 
Pollution  of  stream. 

Cited  in  Weston  Paper  Co.  v.  Pope,  155  Ind.  401,  58  L.  R.  A.  902,  57  N.  E.  719, 
holding  pollution  of  stream  by  discharge  of  waste  therein  may  be  enjoined  by  one 
damaged;  Abraham  v.  Fremont,  54  Neb.  395,  74  N.  W.  834,  upholding  right  of 
owner  to  enjoin  continuance  of  acts  causing  pollution  of  stream;  Kewanee  v. 
Otley,  204  111.  408,  68  N.  E.  388,  holding  judgment  at  law  for  damages  not  bar 
to  relief  in  equity  for  pollution  of  stream;  Braasch  v.  Cemetery  Asso.  69  Xeb. 
305,  95  X.  W.  646,  5  A.  &  E.  Ann.  Cas.  132,  holding  the  use  of  land  as  a  cemetery 
when  such  will  injure  life  or  health  by  corrupting  the  air  or  contaminating  the 
wells,  will  be  enjoined  as  a  private  nuisance;  Todd  v.  York,  3  Xeb.  (Unof.)  766, 
92  X.  W.  1040,  holding  one  who  befouls  or  pollutes  the  waters  of  a  running 
stream,  rendering  it  unfit  for  use,  may  be  enjoined  at  suit  of  the  injured  person; 
Muncie  Pulp  Co.  v.  Martin,  164  Ind.  34,  72  N.  E.  882,  holding  the  pollution  of 
the  waters  of  a  stream  by  reason  of  pulp  manufacture,  constituted  a  continuing 
nuisance. 

Cited  in  footnotes  to  Strobel  v.  Kerr  Salt  Co.  51  L.  R,  A.  687,  which  authorizes 
injunction  against  diversion  of  stream  for  use  in  salt  works,  and  pollution  of 
stream  by  return  of  part;  Barrett  v.  Mt.  Greenwood  Cemetery  Asso.  31  L.  R.  A. 
109,  which  authorizes  injunction  against  connecting  city  drain  with  spring 
brook:  Barnard  v.  Shirley,  24  L.  R.  A.  568,  which  refuses  to  enjoin  flow  of  water 
from  artesian  well  into  natural  watercourse;  Weston  Paper  Co.  v.  Pope,  56  L.  R. 
A.  899,  which  sustains  liability  for  pollution  of  stream  by  discharge  from  straw- 
board  works  though  business  skilfully  conducted. 

Cited  in  notes  (12  L.  R.  A.  577,  13  L.  R.  A.  117)  on  damages  for  pollution  of 
water  of  stream;  (26  L.R.A. (X.S.)  224)  on  pollution  of  water  course  by  stock; 
(10  Eng.  Rul.  Cas.  243)  on  right  of  riparian  owner  to  purity  of  water. 

7  L.  R.  A.  459,  FERXALD  v.  KXOX  WOOLEX  CO.  82  Me.  48,  19  Atl.  93. 
Riparian    riiilus. 

Cited  in  Turner  v.  James  Canal  Co.  155  Cal.  89,  22  L.R.A.(N.S.)  404,  132 
Am.  St.  Rep.  59,  99  Pac.  520,  17  A.  A  E.  Ann.  Cas.  823,  holding  owners  upon 
slough  always  fed  by  river  have  riparian  rights;  Applegate  v.  Franklin.  109 
Mo.  App.  301,  84  S.  W.  347,  holding  a  body  of  surface  water  fed  solely  from 


7  L.R.A.  459]  L.  R.  A.  CASES  AS  AUTHORITIES.  1328 

rain  and  snowfall,  the  soil,  beneath  which  belonged  to  private  owners,  was  not 
such  as  to  give  lateral  owners  riparian  rights. 

Cited  in  footnotes  to  Concord  Mfg.  Co.  v.  Robertson,  18  L.  R.  A.  679,  as  to 
abutter's  rights  in  public  water  and  land  under  same;  Auburn  v.  Union  Water- 
power  Co.  38  L.  R.  A.  188,  which  holds  taking  1/15  water  supply  of  great  pond 
for  city  not  unreasonable  as  to  owners  of  mill  privileges;  Watuppa  Reservoir  Co. 
v.  Fall  River,  13  L.  H.  A.  255,  which  holds  right  of  private  persons  in  great  pond 
not  affected  by  ordinance  of  1647;  DeWitt  v.  Bissell,  69  L.R.A.  933,  which 
denies  right  of  owner  of  property  bordering  on  mill  pond  to  enjoin  owner  of 
dam  and  water  privilege  from  drawing  water  down  to  natural  level  when  neces- 
sary for  utilization  of  the  power. 

Cited  in  notes  (9  L.  R.  A.  812,  50  L.  R.  A.  746)  on  right  of  state  and  riparian 
owners  to  divert  water  of  stream ;  ( 22  Am.  St.  Rep.  202 )  on  title  of  riparian 
owners  on  land  bounded  on  navigable  waters. 

Distinguished  in  Heald  v.  Kennard,  180  Mass.  522,  63  N.  E.  4,  holding  waters 
of  great  pond  may  be  used  by  parties  not  exceeding  rights  as  riparian  owners. 
When  injunction  lies. 

Cited  in  Wilson  v.  Harrisburg,  107  Me.  218,  77  Atl.  787,  holding  that  con- 
tinuing nuisance  which  prevents  comfortable  use  of  property  creates  irreparable 
injury  for  which  injunction  lies. 

Cited  in  note  (10  Eng.  Rul.  Cas.  313)  on  mandatory  injunction  for  protection 
of  easement. 

7  L.  R.  A.  460,  BROOKS  v.  CEDAR  BROOK  &  S.  C.  RIVER  IMPROV.  CO.  82 

Me.  17,  17  Am.  St.  Rep.  459,  19  Atl.  87. 
Obstruction  of  navigable  stream  under  legislative  authority. 

Cited  in  Mullen  v.  Penobscot  Log-Driving  Co.  90  Me.  567,  38  Atl.  557,  holding 
log  company  acting  under  legislative  authority  not  liable  for  depressing  level  of 
navigable  stream;  Frost  v.  Washington  County  R.  Co.  96  Me.  86,  59  L.  R,  A.  79, 
51  Atl.  806,  holding  railroad  company  may  under  legislative  authority  close 
navigable  cove  by  erection  of  trestle;  Barker  v.  French,  102  Me.  412,  67  Atl. 
308,  holding  damages  due  to  overflow  of  land  below  dam  by  reason  of  reasonable 
opening  of  gates  of  mill  dam  are  "damnum  absque  injuria;"  Durham  v.  Lisbon 
Falls  Fibre  Co.  100  Me.  244,  61  Atl.  177,  holding  same  where  injury  to  the 
highway  below  a  dam,  rightfully  constructed,  resulted  from  an  increased  volume 
of  water  at  freshet  seasons;  Northern  P.  R.  Co.  v.  Slade  Lumber  Co.  61  Wash. 
202,  34  L.R.A. (X.S.)  433,  112  Pac.  240  (dissenting  opinion),  on  liability  to 
owner  abutting  on  navigable  stream  for  damages  because  of  erection  of  draw- 
bridge over  stream. 

Cited  in  footnote  to  Payne  v.  Kansas  City,  J.  &  C.  B.  R.  Co.  17  L.  R.  A.  628, 
which  holds  dam  to  protect  land  built  by  legislative  authority  in  abandoned  river 
bed  a  lawful  public  improvement. 

Cited  in  notes  (8  L.  R,  A.  92)  on  right  to  soil  below  high-water  mark  subject 
to  control;  (41  L.R.A.  496)  on  liability  to  riparian  owner  for  injuries;  (67 
L.R.A.  845)  on  right  to  improve  navigability  of  stream;  (20  Am.  St.  Rep.  136) 
on  riparian  rights. 

Disapproved  in  Kalama  Electric  Light  &  P.  Co.  v.  Kalama  Driving  Co.  48 
Wash.  615,  22  L.R.A.  (N.S.)  643,  125  Am.  St.  Rep.  948,  94  Pac.  469,  holding  a 
riparian  owner  having  electric  light  plant  on  river  may  enjoin  one  retarding 
flow  of  water  for  purpose  of  creating  artificial  freshet  to  float  logs,  where  such 
right  had  not  been  acquired  by  condemnation. 


1329  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  465 

it  lull  t  of  floatage  In  non-navigable  streams. 

Cited  in  note  (35  L.R.A.  (N.S.)  833)  on  right  to  impound  water  for  float- 
ing logs. 

Distinguished  in  Seaboard  Air-Line  R.  Co.  v.  Sikes,  4  Ga.  App.  9,  60  S.  E. 
868,  holding,  under  code,  public  right  of  floatage  or  raftage  exists  only  in  streams 
that  are  navigable;  Kamm  v.  Normand,  50  Or.  17,  11  L.R.A. (N.S.)  294,  126 
Am.  St.  Rep.  698,  91  Pac.  448,  holding  a  stream  not  a  natural  highway  cannot 
be  made  so  by  artificial  means,  without  right  acquired  of  riparian  owners. 
Damages  allowable  for  taking:  of  property. 

Cited  in  Kennebec  Water  District  v.  Waterville,  97  Me.  214,  60  L.  R.  A.  866, 
54  Atl.  6,  holding  incidental  damages  to  other  property  of  water  company  dis- 
tinct from  that  taken,  not  allowable. 

7  L.  R.  A.  463,  THORNDIKE  v.  CAMDEN,  82  Me.  39,  19  Atl.  95. 
For  what  purpose  taxes  assessed. 

Followed  in  Clark  v.  Tremont,  83  Me.  429,  22  Atl.  378,  holding  town  without 
authority  to  vote  tax  to  pay  claim  for  which  it  is  not  liable. 

Cited  in  McClelland  v.  State,  138  Ind.  333,  37  N.  E.  1089,  holding  reimburse- 
ment of  trustee  by  tax  for  money  advanced  to  cover  loss  of  school  funds  without 
authority;  Lovejoy  v.  Foxcroft,  91  Me.  371,  40  Atl.  141,  holding  towns  cannot 
assess  or  borrow  money  except  for  public  purposes. 

Cited  in  note  (14  L.  R.  A.  478)   on  taxation  to  pay  moral  obligations. 
Tax   collector's   liability   for   taxes. 

Cited  in  Topsham  v.  Blondell,  82  Me.  155,  19  Atl.  93,  holding  collector  charge- 
able with  all  taxes  committed  to  him. 
Mistake    In    name. 

Cited  in  Stevenson  v.  Henkle,  100  Va.  595,  42  S.  E.  672,  holding  immaterial, 
mistake  in  name  of  landowner  assessed,  not  calculated  to  mislead. 
Use  of  public  property  for  private  purposes. 

Cited  in  Biddeford  v.  Yates,  104  Me.  510,  72  Atl.  335,  15  A.  &  E.  Ann.  Gas. 
1091,  on  purposes  for  which  public  property  may  be  rented. 
Payment  by  commercial  paper. 

Cited  in  note  (35  L.R.A. (N.S.)  83)  on  payment  by  commercial  paper  under 
statutes  requiring  payment  in  money. 

7  L.  R.  A.  465,  NASHVILLE  v.  COMER,  88  Tenn.  415,  12  S.  W.  1027. 
Measure    of   damages   for   nuisance   affecting   realty. 

Approved  in  Doss  v.  Billington,  98  Tenn.  378,  39  S.  W.  717,  holding  measure 
of  damages  for  cutting  ditches  on  another's  land  cost  of  restoring  premises; 
Chattanooga  v.  Dowling,  101  Tenn.  346,  47  S.  W.  700,  upholding  right  to  suc- 
cessive actions  in  damages  for  nuisance  caused  by  discharge  of  sewage  from 
temporary  sewer,  as  there  cannot  be  an  entire  recovery  in  one  action;  Phelps  v. 
Detroit,  120  Mich.  453,  79  N.  W.  640,  upholding  right  to  successive  actions 
against  city  constructing  bridge,  over  railroad  tracks  to  injury  of  abutting  own- 
er; Doran  v.  Seattle,  24  Wash.  189,  54  L.  R.  A.  535,  85  Am.  St.  Rep.  948,  64  Pac. 
230,  holding  one  damaged  by  erection  of  bulkhead  entitled  to  recover  for  injury 
by  continuous  nuisance;  Kansas  City  Ft.  S.  &  M.  R.  Co.  v.  King,  63  Ark.  253,  38 
S.  W.  13,  holding  one  damaged  by  fence  entitled  to  recover  for  injury  to  com- 
mencement of  suit  only;  Oldenburg  v.  Oregon  Sugar  Co.  39  Or.  573,  65  Pac.  869, 
holding  damage  sustained  from  diversion  of  river  by  dam  limited  to  injury  suf- 
fered at  time  dam  washed  away;  Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  King,  23  Ind. 
App.  576,  55  N.  E.  875,  holding  that  law  will  not  presume  that  continuous  nui- 
L.R.A.  Au.  Vol.  L— 84. 


7  L.R.A.  465]  L.  R.  A.  CASES  AS  AUTHORITIES.  1330 

sance  is  caused  by  pollution  of  pond;  Cleveland.  C.  C.  &  St.  L.  R.  Co.  v.  Kline. 
29  Ind.  App.  394,  63  N.  E.  483,  holding  permanent  damage  not  recoverable  for 
overflowing  land  where  cause  is  removable;  Pettit  v.  Grand  Junction,  119  Iowa, 
356,  93  N.  W.  381,  holding  action  for  abatement  of  continuing  nuisance  consisting 
of  location  of  public  buildings  in  street  not  barred  by  statute  of  limitations. 

Cited  in  Southern  R.  Co.  v.  Poetker,  46  Ind.  App.  297,  91  N.  E.  610,  holding 
that  only  such  damages  as  accrued  up  to  time  of  suit  are  recoverable  in  action 
against  railroad  for  obstructing  stream  where  such  nuisance  is  abatable. 

Cited  in  footnote  to  Schlitz  Brewing  Co.  v.  Compton,  18  L.  R.  A.  390,  which  de- 
nies right  to  include  damage  for  injuries,  after  suit  commenced,  from  continuing 
nuisance. 
"When   nuisance   temporary   and   permanent. 

Cited  in  Swift  v.  Broyles,  115  Ga.  887,  58  L.  R.  A.  391,  42  S.  E.  277,  uphold- 
ing right  of  recovery  for  temporary  and  permanent  injuries  to  freehold  caused  by 
escape  of  acids  and  gases;  Coleman  v.  Bennett,  111  Tenn.  716.  69  S.  W.  734, 
distinguishing  the  two  classes  of  injuries  to  realty  and  the  two  rules  for  measure- 
ment of  damages,  one  where  the  injury  is  temporary  and  one  where  permanent; 
gloss-Sheffield  Steel  &  I.  Co.  v.  Mitchell,  161  Ala.  286,  49  So.  851,  holding  if 
proof  shows  a  wrong  by  which  the  value  of  property  is  affected,  permanently 
and  unabatably,  damages  should  be  allowed  for  the  whole  injury,  past  and  pros- 
pective; Baltimore  &  0.  S.  W.  R.  Co.  v.  Quillen,  34  Ind.  App.  338,  107  Am.  St. 
Rep.  183,  72  N.  E.  661,  holding  when  cause  of  injury  is  of  such  nature  as  to  be 
abatable  by  expenditure  of  money  or  labor,  the  law  will  not  presume  the  con- 
tinuance of  the  wrong;  Railway  Co.  v.  Higden,  111  Tenn.  124,  76  S.  W.  895, 
holding  evidence  of  market  value  of  land  before  and  after  flooding  inadmissible 
in  action  to  recover  damages  for  wrongful  obstruction  of  water  course;  Harvey 
v.  Mason  City  &  Ft.  D.  R.  Co.  129  Iowa,  479,  3  L.R.A.(N.S.)  979,  113  Am.  St. 
Rep.  483,  105  X.  W.  958,  on  measure  of  damage  for  injury  to  land. 

Cited  in  note  ( 59  L.  R.  A.  893 )  on  damages  for  erection  of  temporary  structure. 
Liability  of  municipality  for  nuisance. 

Cited  in  Knoxville  v.  Klasing,  111  Tenn.  138,  76  S.  W.  814,  holding  a  city 
after  establishment  of  sewer  system  will  be  liable  where  it  knowingly  permits 
it  to  be  negligently  constructed  or  operated. 

Cited  in  footnotes  to  Nevins  v.  Fitchburg,  47  L.  R.  A.  312,  which  denies  city's 
right  to  discharge  sewer  into  tail  race ;  Hughes  v.  Auburn,  46  L.  R.  A.  636,  which 
denies  city's  liability  for  disease  due  to  neglect  of  proper  sanitary  precautions 
as  to  sewer  system;  Uppington  v.  New  York,  53  L.  R.  A.  550,  which  denies  city's 
liability  for  failure  to  select  best  possible  route  or  adopt  best  possible  plan  for 
sewer;  Williams  v.  Greenville,  57  L.  R.  A.  207,  which  denies  city's  liability  for 
sickness,  etc.,  from  permitting  filth  from  drainage  ditch  to  flow  on  adjoining 
land;  Huffmire  v.  Brooklyn,  48  L.  R.  A.  421,  which  sustains  city's  liability  for 
destruction  of  oysters  by  sewage  cast  on  beds. 

Cited  in  note  (61  L.  R.  A.  712)   on  duty  and  liability  of  municipality  with  re- 
spect to  drainage. 
Sufficiency    of   remedy. 

Cited  in  Dennis  v.  Mobile  &  M.  R.  Co.  137  Ala.  657,  97  Am.  St.  Rep.  69,  35  So. 
30,  holding  remedy  at  law  adequate  for  permanent  damages  to  real  estate,  sus- 
tained by  erection  of  freight  house. 

7  L.  R.  A.  469,  SMITH  v.  NASHVILLE,  88  Tenn.  464,  12  S.  W.  924. 
City's   power   to   supply   citizens   with    vrater   and    liiilu. 

Approved  in  Christensen  v.  Fremont.  45  Neb.  166,  63  N.  W.  364.  and  Jackson- 
ville Electric  Light  Co.  v.  Jacksonville.  36  Fla.  256,  30  L.  R.  A.  544,  51  Am.  St. 


1331  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  474 

Rep.  24,  18  So.  G77,  both  holding  power  to  supply  private  lights  within  authoriza- 
tion to  provide  for  lighting  city;  Crawfordsville  v.  Braden,  130  Ind.  161,  14  L.  R. 
A.  273,  30  Am.  St.  Rep.  214,  28  N.  E.  849,  holding  that  private  lights  may  be 
furnished  by  city  empowered  to  establish  electric  light  plant;  Mayo  v.  Washing- 
ton, 122  N.  C.  25,  40  L.  R.  A.  169,  29  S.  E.  343  (dissenting  opinion)  majority 
holding  debt  for  purchase  of  electric  light  plant  not  "necessary  expense"  of  town; 
Avery  v.  Job,  25  Or.  523,  36  Pac.  293,  holding  that  construction  and  operation  of 
waterworks,  general  municipal  purpose;  Huron  Waterworks  Co.  v.  Huron,  7  S. 
D.  27,  30  L.  R.  A.  857,  58  Am.  St.  Rep.  817,  62  N.  W.  975,  holding  city  cannot  dis- 
pose of  waterworks  except  under  legislative  authorization;  Lake  County  Water 

6  Light  Co.  v.  Walsh,  160  Ind.  44,  98  Am.  St.  Rep.  264,  65  N.  E.  530,  denying 
right  of  city  to  sell  waterworks  and  electric  light  plant  to  private  corporation. 

Cited  in  Baker  v.  Carterswille,  127  Ga.  225,  56  S.  E.  249,  holding  the  vending 
of  light  and  water  to  private  consumers  by  the  city  is  an  incident  of  the  supply 
of  these  elements  for  strictly  public  use;  Overall  v.  Madisonville,  125  Ky.  691,  12 
L.R.A.  (X.S.)  436,  102  S.  W.  278,  holding  power  to  do  the  thing  unreservedly 
gives  the  city  the  discretion  in  the  choice  of  means  it  will  adopt. 
Exemption  from  tax. 

Cited  in  Methodist  Episcopal  Church,  South,  Book  Agents  v.  Hinton,  92  Tenn. 
196,  19  L.  R.  A.  293,  21  S.  W.  321,  holding  church's  publishing  plant  a  charitable 
institution  although  sometimes  doing  secular  printing,  where  total  proceeds  de- 
voted to  charitable  use;  State  Xat.  Bank  v.  Memphis,  116  Tenn.  648,  7  L.R.A. 
(X.S.)  666,  94  S.  W.  606,  8  A.  &  E.  Ann.  Cas.  22,  holding  there  is  no  implied  ex- 
emption of  state  bonds  from  burden  of  taxation;  American  Book  Co.  v.  Shelton, 
117  Tenn.  762,  100  S.  W.  725,  on  taxation  of  property  used  exclusively  for  public 
purposes. 

Cited  in  notes  (60  L.R.A.  852,  853)  as  to  taxation  of  municipal  waterworks; 
(1  L.R.A. (N.S.)  766)  on  taxation  of  water  company  belonging  to  municipality; 
(132  Am.  St.  Rep.  327)  on  exemption  from  taxation  or  assessment  of  lands 
owned  by  governmental  bodies,  or  in  which  'they  have  an  interest. 

7  L.  R.  A.  471,  KIRCHER  v.  CONRAD,  9  Mont.   191,   18  Am.  St.  Rep.  731,  23 

Pac.  74. 
Review   of   order   urniitiiiu-   or   refusing^   new   trial. 

Cited  in  Kilby  v.  Baker,  9  Mont.  399,  24  Pac.  22,  and  Murray  v.  Heinze,  17 
Mont.  359,  42  Pac.  1057,  holding  order  granting  or  refusing  new  trial  on  ground 
of  insufficiency  of  evidence  not  reviewable  on  appeal,  when  evidence  conflicting, 
unless  abuse  of  discretion  shown. 
"What   constitutes  warranty. 

Cited  in  notes  (102  Am.  St.  Rep.  608)  on  implied  warranty  of  quality;  (35 
L.R.A. (N.S.)  278,  284)  on  effect  of  sale  with  particular  description  of  kind 
or  quality:  (37  L.R.A.(N.S.)  79)  on  warranty  by  vendor  of  seeds;  (6  Eng. 
Rul.  Cas.  502)  on  what  constitutes  warranty. 

7  L.  R,  A.  474,  POSTAL  TELEG.  CABLE  CO.  v.  LATHROP,  131  111.  575,  19  Am. 

St.  Rep.  55,  23  N.  E.  583. 
Appeal;   review  of  findings  of  fact. 

Cited  in  La  Salle  County  v.  Milligan,  143  111.  329,  32  N.  E.  196,  holding  con- 
troverted questions  of  fact,  in  cases  coming  to  supreme  court  through  appellate 
court,  not  subject  to  review ;  Chicago,  B.  &  Q.  R.  Co.  v.  Haselwood,.  194  111.  70, 
62  N.  E.  315,  holding  judgment  of  affirmance  by  appellate  court  implies  finding 
of  facts  same  as  trial  court,  and  is  conclusive  as  to  such  findings;  Bernstein  v. 


7  L.R.A.  474]  L.  R.  A.  CASES  AS  AUTHORITIES.  1332 

Roth,  145  111.  191,  34  N.  E.  37,  holding  opinions  of  appellate  court  cannot  be 
resorted  to  for  purpose  of  ascertaining  its  findings  of  fact;  Chemical  Xat.  Bank 
v.  City  Bank,  160  U.  S.  653,  40  L.  ed.  570,  16  Sup.  Ct.  Rep.  417,  holding  under 
Illinois  practice  act,  supreme  court  will  examine  evidence  to  ascertain  principles 
of  law  involved  in  controversy;  Hahn  v.  Billings  Bros.  18  R.  I.  554,  28  Atl.  1027, 
holding  finding  of  fact  by  court  of  common  pleas  conclusive  upon  supreme  court, 
if  there  is  any  evidence  to  support  it;  Wolf  Co.  v.  Western  U.  Teleg.  Co.  24  Pa. 
Super.  Ct.  135,  holding  where  evidence  of  negligence  of  company  in  transmitting 
message  is  conflicting  the  case  is  for  the  jury. 
Teles-rams;  extrinsic  evidence  to  show  notice  of  Importance. 

Cited  in  McPeek  v.  Western  U.  Teleg.  Co.  107  Iowa,  362,  43  L.  R,  A.  218,  70 
Am.  St.  Rep.  205,  78  N.  W.  63,  holding  where  probability  of  damage  not  apparent 
on  face  of  message,  extrinsic  evidence  admissible  to  show  telegraph  company 
had  notice  of  importance;  Western  U.  Teleg.  Co.  v.  Nagle,  11  Tex.  Civ.  App.  542, 
32  S.  W.  707,  holding  telegraph  company  chargeable  with  notice  of  character  and 
importance  of  message  partly  in  cipher,  when  received  from  cotton  buyer,  with 
request  to  "rush  it"  and  get  answer  by  wire  soon  as  possible;  Joshua  L.  Bailey 
&  Co.  v.  Western  U.  Teleg.  Co.  227  Pa.  532,  —  L.R.A.(N.S.)  — ,  76  Atl.  736, 
holding  if  it  shows  that  it  relates  to  a  commercial  or  legal  transaction  of  value 
it  is  sufficient;  Western  U.  Teleg.  Co.  v.  Potts,  120  Tenn.  44,  19  L.R.A.(N.S.) 
481,  127  Am.  St.  Rep.  991,  113  S.  W.  789,  holding  company  may  learn  grounds  on 
which  estimate  of  damages  may  be  based,  either  from  facts  communicated  to 
agent  dehors  the  message  or  from  face  of  message  itself;  Williamson  v.  Postal 
Teleg.  Cable  Co.  151  X.  C.  226,  65  S.  E.  974,  holding  it  enough  that  company  knew 
.damage  would  probably  result;  Western  U.  Teleg.  Co.  v.  Lehman,  105  Md.  449, 
66  Atl.  266,  holding  where  company  from  course  of  business  knew  sender  bought 
for  foreign  export  and  custom  was  to  deliver  messages  after  business  hours 
at  residence,  it  is  presumed  to  know  telegram  related  to  a  matter  of  importance; 
Western  U.  Teleg.  Co.  v.  Askew,  92  Ark.  135,  122  S.  WT.  107,  holding  where  face  of 
message  shows  it  relates  to  a  commercial  transaction  the  company  has  notice  of 
any  direct  or  actual  damages  that  may  result;  Western  U.  Teleg.  Co.  v.  Merritt, 
55  Fla.  484,  127  Am.  St.  Rep.  169,  46  So.  1024,  holding  it  not  essential  that 
message  disclose  all  the  details  of  the  transaction  to  which  it  relates,  or  the  par- 
ticular business  intended;  Postal  Teleg.  Cable  Co.  v.  Louisville  Cotton  Oil  Co. 
136  Ky.  858,  122  S.  W."852,  holding  in  case  of  doubt  as  to  notice  of  importance 
complaining  party  may  introduce  evidence  of  facts  and  circumstances  such  as 
throw  light  upon  question. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Short,  9  L.  R,  A.  744,  which 
holds  company  prima  facie  liable  for  failure  to  deliver  telegram. 

Cited  in  note   (10  L.  R.  A.  515)   on  interpretation  of  telegraph  messages. 
Measure   of   damages   for   negligent    transmission    of   message. 

Approved  in  Providence  Washington  Ins.  Co.  v.  Western  U.  Teleg.  Co.  247  111. 
90,  30  L.R.A.(N.S.)  1172,  139  Am.  St.  Rep.  314,  93  NT.  E.  134,  holding  that  tele- 
graph company  is  liable  to  insurance  company  for  loss  under  policy  of  insur- 
ance company  where  because  of  failure  to  send  message  showing  important  busi- 
ness transaction  on  face,  such  loss  was  sustained. 

Cited  in  Western  U.  Teleg.  Co.  v.  Hart,  62  111.  App.  123,  holding  telegraph 
company  liable  for  consequences  that  may  be  reasonably  anticipated  from  face 
of  message;  Fererro  v.  Western  U.  Teleg.  Co.  9  App.  D.  C.  471,  35  L.  R,  A.  552, 
holding  telegraph  company  liable  for  consequential  damages  if  message  shows 
business  transaction  on  face;  Bierhaus  v.  Western  U.  Teleg.  Co.  8  Ind.  App.  253, 
34  X.  E.  581,  holding  it  unnecessary  that  telegraph  company  be  apprised  of  loss 


1333  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  478 

that  may  result  from  negligent  transmission,  if  message  shows  it  relates  to 
business  transaction;  Western  U.  Teleg.  Co.  v.  Church,  3  Neb.  (Unof.)  31,  57 
L.R.A.  909,  90  X.  \V.  878,  holding  substantial  damages  may  be  recovered  for  fail- 
ure to  promptly  transmit  message  summoning  physician  to  "come  at  once;"  West- 
ern U.  Teleg.  Co.  v.  North  Packing  &  Provision  Co.  188  111.  370,  52  L.R.A.  277, 
58  N.  E.  958,  holding  failure  of  sender's  agent  to  reduce  damage,  from  delay  in 
delivery  of  message,  by  doing  unauthorized  act,  not  available  to  telegraph  com- 
pany in  mitigation;  Western  U.  Teleg.  Co.  v.  Lehman,  106  Md.  331,  67  Atl.  241, 
14  A.  &  E.  Ann.  Cas.  736,  holding  a  recovery  cannot  be  had  for  profits  sender 
might  have  made  from  re-sale  had  he  received  the  goods;  Illinois  Smelting  &  Ref. 
Co.  v.  Western  U.  Teleg.  Co.  146  111.  App.  166,  holding  where  message  on  face  did 
not  disclose  fact  that  it  related  to  commercial  transaction  and  company  had  no 
other  notice  of  its  importance  damages  due  to  advanced  cost  cannot  be  recovered; 
Providence  Washington  Ins.  Co.  v.  Western  U.  Teleg.  Co.  153  111.  App.  125, 
holding  that  telegraph  company  is  liable  for  loss  sustained  by  fire  insurance 
company  on  policy  because  of  failure  to  deliver  message  to  agent  directing  can- 
celation  of  policy;  Western  U.  Teleg.  Co.  v.  Blackwell  Mill  &  Elevator  Co.  24 
Okla.  543,  138  Am.  St.  Rep.  893,  103  Pac.  717;  Fitch  v.  Western  U.  Teleg.  Co. 
350  Mo.  App.  157,  130  S.  W.  44, — holding  that  telegraph  company  is  only  liable 
for  substantial  damages  where  operator  has  knowledge  from  message,  or  from 
another  source,  at  time  of  sending,  that  it  related  to  business  matters. 

Cited  in  footnotes  to  McPeek  v.  Western  U.  Teleg.  Co.  43  L.  R.  A.  214,  which 
holds  loss  of  reward  offered  for  capture  of  criminal  within  damages  recoverable 
for  failure  to  deliver  telegram;  Fererro  v.  Western  U.  Teleg.  Co.  35  L.  R,  A. 
548,  which  limits  damage  for  mistake  in  telegram  as  to  price  in  offer  to  sell 
goods,  to  difference  in  price;  \\estern  U.  Teleg.  Co.  v.  ^Noitb.  Packing  &  Provision 
Co.  52  L.  R.  A.  275,  which  holds  agent  purchasing  live  stock  through  delay  in 
delivering  telegram,  not  required  to  resell  before  communicating  with  principal, 
to  reduce  damages;  Western  U.  Teleg.  Co.  v.  Nye  &  S.  Grain  Co.  63  L.R.A.  803, 
which  holds  difference  in  value  between  market  value  of  corn  and  the  price  at 
which  it  could  have  been  sold  the  measure  of  damages  for  negligent  delay  of  tele- 
gram; Hays  v.  Western  U.  Teleg.  Co.  67  L.R.A.  841,  which  holds  that  change  in 
telegram  so  as  to  quote  price  of  mules  at  ten  dollars  per  head  less  than  market 
price  resulting  in  sendee's  ordering  purchase  of  designated  number,  renders  tele- 
graph company  liable  for  a  difference  between  price  paid,  and  that  stated  in 
telegram. 

Cited  in  note  (117  Am.  St.  Rep.  290,  292,  295,  299)  on  elements  of  damages 
recoverable  for  failure  to  transmit  and  deliver  telegrams. 

7  L.  R.  A.  478,  DWYER  v.  GULF,  C.  &  S.  F.  R.  CO.  75  Tex.  572,  16  Am.  St. 
Rep.  926,  12  S.  W.  1001. 

Adhered  to  on  third  appeal  of  case  reported  in  84  Tex.  198,  19  S.  W.  470. 
Penalty    imposed    on    carrier. 

Cited  in  Dillingham  v.  Fischl,  1  Tex.  Civ.  App.  551,  21  S.  W.  554,  and  Gulf, 
C.  &  S.  F.  R.  Co.  v.  Nelson,  4  Tex.  Civ.  App.  347,  23  S.  W.  732,  holding  statute 
imposing  penalty  on  carrier  refusing  to  deliver  freight  upon  tender  of  charges 
not  invalid  as  regulation  of  commerce;  Ft.  Worth  A  D.  C.  R.  Co.  v.  Lillard,  4 
Tex.  App.  Civ.  Cas.  (Willson)  124,  holding  statute  imposing  penalty  on  rail- 
road company  for  overcharge  on  interstate  shipment  not  unconstitutional;  S.  A. 
&  A.  P.  R.  Co.  v.  Wilson,  4  Tex.  App.  Civ.  Cas.  (Willson)  570,  holding  legislature 
without  power  to  impose  penalty  upon  railroad  companies  only,  tor  failure  to 
pay  servants  within  specified  time;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Nelson,  4  Tex. 
Civ.  App.  349,  23  S.  W.  732,  holding  in  suit  to  recover  statutory  penalty  plaintiff 


7  L.R.A.  478]  L.  R.  A.  CASES  AS  AUTHORITIES.  1334 

must  prove  a  case  clearly  within  terms  of  the  law;  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Loonie,  84  Tex.  261,  19  S.  W.  385,  raising  but  not  deciding  question  whether 
suit  for  statutory  penalty  for  withholding  freight  and  overcharge,  applicable 
to  interstate  shipment;  Harrill  Bros.  v.  Southern  R.  Co.  144  N.  C.  541,  57  S.  E. 
383,  holding  a  statute  imposing  a  penalty  upon  common  carriers  for  refusal  to 
deliver  freight  is  not  invalid  as  an  interference  with  interstate  commerce;  Walker 
v.  Southern  R.  Co.  137  N.  C.  168,  49  S.  E.  84,  holding  same  where  statute  allows 
a  penalty  for  failure  to  ship  goods  within  specified  time. 

Cited  in  footnote  to  Clegg  v.  Southern  R.  Co.  65  L.R.A.  717,  which  holds 
carrier  refusing  to  deliver  freight  because  of  refusal  of  excessive  charge  liable 
for  ensuing  loss,  though  the  one  making  the  demand  had  not  obtained  the  bill 
of  lading  nor  an  order  for  delivery. 

Cited  in  note   (20  L.R.A. (X.S.)    128)   on  constitutionality  of  legislation  affect- 
ing amount  of  liability  or  penalty  for  delay  in  delivery,  or  for  destruction,  of 
freight. 
Police   i-funliit  ions  of  commerce. 

Cited  in  Texas  &  P.  R.  Co.  v.  Clark,  4  Tex.  Civ.  App.  614,  23  S.  W.  698,  holding 
states  may  make  police  regulations  relative  to  commerce  within  proper  limita- 
tions; Missouri,  K.  &  T.  R.  Co.  v.  Simonson,  64  Kan.  810,  57  L.  R.  A.  768,  91 
Am.  St.  Rep.  248,  68  Pac.  653,  holding  statute  making  specification  of  weights 
in  bills  of  lading  conclusive  evidence  against  carrier  a  police  regulation;  Houston 
&  T.  C.  R.  Co.  v.  Mayes,  36  Tex.  Civ.  App.  607,  83  S.  W.  53,  holding  a  statute 
making  it  the  duty,  upon  reasonable  notice  to  furnish  cars  for  carriage  of  freight, 
is  a  proper  exercise  of  police  power. 

Cited  in  notes    (26  Am.  St.  Rep.  579;   27  Am.   St.  Rep.  559,  567)    on  state 
regulation  of  interstate  commerce. 
Ratification    by    carrier. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Nelson,  4  Tex.  Civ.  App.  348,  23  S.  W.  732, 
and  Dillingham  v.  Fischl,  1  Tex.  Civ.  App.  552,  21  S.  W.  554,  holding  penalty  for 
refusal  to  deliver  freight  on  payment  or  tender  not  recoverable  unless  carrier 
executed  bill  of  lading  or  ratified  it;  Miller  v.  Texas  &  N.  O.  R.  Co.  83  Tex.  521, 
18  S.  W.  954,  holding  ratification  not  presumed  as  against  connecting  carrier 
from  fact  that  it  received  and  hauled  car  and  collected  charges;  Pittsburg,  C.  C. 
&  St.  L.  R,  Co.  v.  Viers,  113  Ky.  535,  68  S.  W.  469,  holding  connecting  carrier, 
not  limiting  liability,  receives  shipment  under  terms  of  contract  with  initial 
carrier. 

Cited  in  note  (10  L.  R.  A.  418)  on  liability  of  connecting  carrier. 
Limitation    of   liability   by    contract. 

Cited  in  Armstrong  v.  Galveston,  H.  &  S.  A.  R.  Co.  92  Tex.  121,  46  S.  W.  33, 
and  Gulf,  C.  &  S.  F.  R.  Co.  v.  Eddins,  7  Tex.  Civ.  App.  125.  26  S.  W.  161,  holding 
statute  forbidding  contracts  limiting  time  to  present  claim  or  sue  does  not  regu- 
late interstate  commerce;  Pittmann  v.  Pacific  Exp.  Co.  24  Tex.  Civ.  App.  598, 
59  S.  W.  949,  holding  statute  prohibiting  common  carriers  from  limiting  their 
liability  in  bill  of  lading  applicable  to  contracts  for  interstate  carriage;  Ohio  & 
M.  R.  Co.  v.  Tabor,  98  Ky.  510,  34  L.  R.  A.  689,  36  S.  W.  18,  holding  constitu- 
tional provision  that  carrier  shall  not  contract  for  relief  from  common-law  lia- 
bility not  in  conflict  with  Federal  Constitution;  Galveston,  H.  &  S.  A.  R.  Co.  v. 
Fales,  33  Tex.  Civ.  App.  460,  77  S.  W.  234,  holding  statutes  prohibiting  limita- 
tions of  common  carrier  liability  as  it  existed  at  the  common  law,  is  valid  as 
applied  to  contracts  for  interstate  transportation,  of  property ;  International  & 
G.  N.  R.  Co.  v.  Vandeventer,  48  Tex.  Civ.  App.  369,  107  S.  W.  560.  on  application 
of  statutes  to  business  of  carriers  of  state- 


1335  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  481 

Production   of  bill   of   lading:* 

Cited  in  note  (38  L.  R.  A.  361)  on  necessity  of  production  of  bill  of  lading. 
Liability  of  connecting:  carrier*. 

Cited  in  Atchison,  T.  &  S.  F.  R.  Co.  v.  Smythe,  55  Tex.  Civ.  App.  562,  119 
S.  W.  892,  holding  burden  on  terminal  carrier  to  show  that  damage  did  not  occur 
on  its  line,  where  goods  were  received  by  initial  carrier  in  good  condition. 

7  L.  R.  A.  481,  WALLING  v.  BURGESS,  122  Ind.  299,  22  N.  E.  419,  23  N.  E.  1076. 
Power  of  surviving:  partner. 

Cited  in  Riley  v.  Carter,  76  Md.  594,  19  L.  R.  A.  494,  35  Am.  St.  Rep.  443, 
25  Atl.  667,  holding  surviving  partner  may  execute  assignment  for  benefit  of 
creditors  in  conformity  with  insolvent  laws;  Holladay  v.  Land  &  River  Improv. 
Co.  6  C.  C.  A.  571,  18  U.  S.  App.  308,  57  Fed.  785,  to  point  that  conveyance  by 
surviving  partner  passes  equitable  title. 

Cited  in  notes  (7  L.  R.  A.  791)  on  duty  of  surviving  partner;   (28  L.  R.  A.  133) 
on  disposition  of  -real  estate  by  surviving  partner;    (24  Am.  St.  Rep.  186)    on 
power  of  surviving  partner. 
Rigrhts    of    heirs. 

Cited  in  Bollenbacher  v.  First  Nat.  Bank,  8  Ind.  App.  18,  35  N.  E.  403,  and 
Valentine  v.  Wysor,  123  Ind.  52,  7  L.  R.  A.  794,  23  N.  E.  1076,  holding  rights 
of  heirs  of  deceased  partner  attach  only  to  the  surplus  remaining  after  payment 
of  partnership  debts. 

Cited  in  note  (27  L,  R,  A.  345)   on  claims  of  heirs  must  yield  to  partnership 
claims. 
Estoppel   from   claiming:  Interest. 

Cited  in  Wilmore  v.  Stetler,  137  Ind.  137,  45  Am.  St.  Rep.  169,  36  N.  E.  856, 
holding  acceptance  by  heirs  of  proceeds  of  land  sold  as  belonging  to  the  dece- 
dent estops  them  from  claiming  their  two-thirds  interest  therein;  Axton  v. 
Carter,  141  Ind.  676,  39  N.  E.  546,  holding  heirs  accepting  proceeds  of  sale  of 
land  made  to  administrator  through  third  party  ratify  sale  and  cannot  avoid  it. 
Error  In  overruling;  demnrrers. 

Cited  in  Bradshaw  v.  Van  Winkle,  133  Ind.  136,  32  N.  E.  877;  Schmidt  v. 
Draper,  137  Ind.  253,  36  N.  E.  709 ;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Bodenschatz- 
Bedford  Stone  Co.  141  Ind.  258,  39  N.  E.  703, —  holding  error  in  overruling  de- 
murrer to  answer  immaterial  where  record  shows  ruling  was  harmless;  Haas  v. 
Evansville,  20  Ind.  App.  490,  50  N.  E.  46,  holding  erroneous  overruling  of  de- 
murrer to  answer  immaterial  where  appellant  failed  to  prove  his  complaint  in 
court  below;  Indianapolis,  D.  &  W.  R.  Co.  v.  Center  Twp.  143  Ind.  74,  40  N.  E. 
134,  holding  error  in  overruling  demurrer  to  answer  setting  up  statute  of  limita- 
tions immaterial  where  record  shows  final  judgment  correct,  and  not  based  on 
any  finding  as  to  such  statute. 
Special  nndins:  or  special  verdict  curing  error. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Downey,  18  Ind.  App.  145,  47  N.  E. 
494,  and  Tulley  v.  Citizens'  State  Bank,  18  Ind.  App.  242,  47  N.  E.  850,  holding 
erroneous  overruling  of  demurrer  harmless  where  there  was  special  verdict  or 
special  finding;  Runner  v.  Scott,  150  Ind.  442,  50  N.  E.  479,  holding  error  in 
overruling  demurrer  immaterial  when  there  is  special  finding;  Smith  v.  Wells 
Mfg.  Co.  148  Ind.  335,  46  N.  E.  1000,  holding  error  in  overruling  demurrer  to 
answer  harmless  where  special  finding  is  in  accordance  with  facts  alleged  in 
subsequent  answer;  Watson  V.  Tindall,  150  Ind.  488,  50  N.  E.  468,  holding 
erroneous  ruling  on  demurrer  to  answer  harmless  where  there  is  special  finding, 
and  facts  found  could  have  been  proved  under  the  general  denial;  Terre  Haute 


7  L.R.A.  481]  L.  R.  A.  CASES  AS  AUTHORITIES.  1336 

Brewing  Co.  v.  Hartman,  19  Ind.  App.  600,  49  N.  E.  864,  holding  sufficiency  of 
answer  will  not  be  considered  where  correct  statement  of  the  law  may  be  made 
on  facts  specially  found;  Beasley  v.  Phillips,  20  Ind.  App.  188,  50  N.  E.  488, 
holding  court  may  look  to  special  finding  or  special  verdict  to  determine  whether 
ruling  on  demurrer  was  prejudicial;  Gilliland  v.  Jones,  144  Ind.  670,  55  Am.  St. 
Rep.  210,  43  N.  E.  939,  holding  court  may  look  to  special  finding  to  ascertain  if 
ruling  on  demurrer  to' answer  is  harmless. 
Harmless  error. 

Cited  in  Terre  Haute  Electric  Co.  v.  Watson,  33  Ind.  App.  126,  70  N.  E.  993, 
holding  the  overruling  of  a  challenge  to  a  juror  for  cause,  where  juror  is  dis- 
missed by  peremptory  challenge,  and  party  does  not  exhaust  his  peremptory  chal- 
lenges, is  not  ground  for  reversal. 

7  L.  R.  A.  485,  DAVIS  v.  FOGLE,  124  Ind.  41,  23  N.  E.  860. 
Wills;   effect  of  subsequent  adoption   of  child. 

Cited  in  Hilpire  v.  Claude,  109  Iowa,  166,  46  L.  R.  A.  174,  77  Am.  St.  Rep. 
524,  80  N.  W.  332,  holding  under  statute  making  birth  of  child  to  testator  operate 
as  revocation  of  prior  will,  subsequent  adoption  of  child  does  not  have  such 
effect;  Re  Comassi,  107  Cal.  7,  28  L.  R.  A.  416,  40  Pac.  15,  holding  subsequent 
remarriage  and  adoption  of  stranger  in  blood  do  not  operate  to  revoke  will  of 
married  woman. 

Cited  in  footnotes  to  Flannigan  v.  Howard,  59  L.  R.  A.  664,  which  holds  de- 
vises and  legacies  in  will  ratably  abated  by  adoption  of  child  after  its  execution; 
Re  Comassi,  28  L.  R»  A.  414,  which  holds  will  not  revoked  by  adopting  stranger 
in  blood;  Glascott  v.  Bragg,  56  L.  R.  A.  258,  which  holds  will  in  favor  of  third 
person  revoked  by  marriage  and  adoption  of  child. 
Revocation  of  Trill  It-y  subsequent  marriage  or  divorce. 

Cited  in  Jones's  Estate,  211  Pa.  386,  69  L.R.A.  952,  107  Am.  St.  Rep.  581,  60 
Atl.  915,  3  A.  &  E.  Ann.  Gas.  221,  holding  a  bequest  to  a  woman,  as  "wife"  is 
revoked  by  implication  by  reason  of  an  absolute  divorce  procured  from  testator 
at  wife's  instance. 

Cited  in  footnotes  to  Re  Hulett,  34  L.  R.  A.  384,  which  holds  will  not  revoked 
by  marriage  alone;  Ingersoll  v.  Hopkins,  40  L.  R.  A.  191,  which  holds  will 
giving  testator's  property  to  woman  made  executrix  revoked  by  testator's  subse- 
quent marriage  to  her;  Re  Kelly,  56  L.  R,  A.  754,  which  holds  woman's  will  not 
revoked  by  subsequent  marriage;  Roane  v.  Hollingshead,  17  L.  R.  A.  592,  which 
holds  rule  that  will  of  feme  sole  revoked  by  marriage  not  in  force  where  in- 
capacity removed  by  statute;  Re  Comassi,  28  L.  R.  A.  414,  which  holds  married 
woman's  will  not  revoked  by  subsequent  marriage  after  becoming  widow;  Re 
Teopfer,  67  L.R.A.  315,  which  holds  antenuptial  will  revoked  by  testator's  mar- 
riage. 

Cited  in  notes  (10  L.  R.  A.  57)  on  presumptive  revocation  of  will;   (10  L.  R.  A. 
94)   on  revocation  of  joint  will. 
Manner  of  effecting-   revocation. 

Cited  in  footnotes  to  Billington  v.  Jones,  56  L.  R.  A.  654,  which  holds  will 
revoked  by  writing  on  it  statement  that  it  is  void,  stating  that  it  is  killed,  and 
filing  it  away;  Cutler  v.  Cutler,  57  L.  R.  A.  209,  which  holds  will  revoked  by 
adopting  mutilations  by  vermin. 

Cited  in  note  (130  Am.  St.  Rep.  632)  on  implied  revocation  of  will  from 
change  in  condition  and  circumstances  of  testator  other  than  marriage  or  birth 
of  issue. 


1337  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  489- 

Rig-lit  of  adopted  cbild  to  take  by   descent  or  will. 

died  in  Re  Gregory,  15  Misc.  409,  37  X.  Y.  Supp.  925,  holding  inheritance  of 
adopted  child  subject  to  testamentary  power  of  adopting  parent. 

Cited  in  note  (30  L.R.A.  (N.S.)  917)  as  to  whether  terms  "child,"  "children," 
"issue,"  etc.,  in  statutes  of  distribution  include  adopted  children. 

Distinguished  in  Markover  v.  Krauss,  132  Ind.  304,  17  L.  R.  A.  810,  31  N.  E. 
1047,  holding  children  jointly  adopted  take  by  descent  from  deceased  parent  same 
property  rights  as  natural  children;  Bray  v.  Miles,  23  Ind.  App.  443,  54  N.  E. 
446,  holding  under  will  providing  share  of  deceased  devisee  shall  go  to  children, 
if  there  be  any,  adopted  child  takes  share  of  adopted  parent. 
Estoppel  to  contest  will. 

Cited  in  footnote  to  Hudnall  v.  Ham,  48  L.  R.  A.  557,  which  holds  widow  pre- 
cluded from  contesting  husband's  will  by  antenuptial  contract  agreeing  to  re- 
lease all  interest  in  his  estate. 

7  L.  R.  A.  489,  CULVER  v.  MARKS,  122  Ind.  554,  17  Am.  St.  Rep.  377,  23  N.  E. 

1086. 
Checks   and   drafts;    when   presentment   necessary. 

Cited  in  Industrial  Trust,  Title  &  Sav.  Co.  v.  Weakley,  103  Ala.  464,  49  Am. 
St.  Rep.  45,  15  So.  854,  holding  unreasonable  delay  in  presentment  of  check 
covered  by  deposit  releases  drawer. 

Distinguished  in  Industrial  Trust,  Title  &  Sav.  Co.  v.  Weakley,  103  Ala.  465, 
49  Am.  St.  Rep.  45,  15  So.  854,  holding  insufficiency  of  deposit  does  not  excuse 
prompt  presentment  of  check  where  drawer  has  arranged  for  overdraft;  Citizens 
Nat.  Bank  v.  Third  Nat.  Bank,  19  Ind.  App.  75,  49  X.  E.  171,  holding  failure  of 
bona  fide  indorsee  of  draft  to  inquire  into  drawer's  right  does  not  excuse  collect- 
ing bank's  failure  to  present. 
Checks;  statute  of  limitations. 

Cited  in  note  (22  L.  R.  A.  110)  on  statute  of  limitation  as  applicable  to  bank 
checks. 
Certified    check.;    drawer's    liability. 

Cited  in  Born  v.  First  Xat.  Bank,  123  Ind.  84,  7  L.  R.  A.  445,  18  Am.  St.  Rep. 
312,  24  N.  E.  173,  holding  drawer  of  certified  check  remains  liable  until  payment. 
Books  of  account  as  evidence. 

Cited  in  Bastrop  State  Bank  v.  Levy,  106  La.  589,  31  So.  164,  holding  book 
entries  of  bank  deposits,  accompanied  by  proof  of  handwriting  and  death  of 
bookkeeper,  competent;  Cleland  v.  Applegate,  8  Ind.  App.  501,  35  N.  E.  1108, 
holding  entries  made  by  disinterested  person  in  course  of  business  competent 
evidence  of  transactions;  Wilber  v.  Scherer,  13  Ind.  App.  430,  41  N.  E.  837, 
holding  permitting  witness  to  read  from  account  book  items  to  which  he  had 
previously  testified,  not  reversible  error:  Harmon  v.  Decker,  41  Or.  595,  93  Am. 
St.  Rep.  748,  68  Pac.  11,  holding  merchant's  account  books  not  evidence  of 
loans  to  others;  Place  v.  Baugher,  159  Ind.  235,  64  N.  E.  852,  holding  book  into 
which  measurements  of  saw  logs  were  transcribed  the  same  day  on  which  re- 
ceived admissible;  International  &  G.  N.  R.  Co.  v.  Startz,  42  Tex.  Civ.  App.  94,  94 
S.  W.  207,  holding  evidence  of  weights  and  prices  of  cattle  consigned  to  broker 
as  taken  from  entries  taken  from  sales  books  of  broker  was  admissible  in  action 
against  a  carrier  for  damage  to  cattle;  Coppes  v.  Union  Nat.  Sav.  &  L.  Asso.  33 
Ind.  App.  374,  69  N.  E.  702,  holding  contents  of  books  of  account  of  private  cor- 
poration are  not  admissible  in  evidence  in  a  manner  different  from  that  in  which 
such  books  of  natural  persons  are  received:  Johnson  v.  Zimmerman.  42  Ind.  App. 
172,  84  X.  E.  541,  on  admissibility  of  account  book  entries  in  evidence;  Brown 


7  L.R.A.  489]  L.  R.  A.  CASES  AS  AUTHORITIES.  1338 

v.  United  States,  73  C.  C.  A.  187,  142  Fed.  6,  on  adinissibility  of  bank  account 
books  in  evidence. 

Cited  in  notes  (53  L.R.A.  529)  on  use  of  person's  books  of  account  as  evidence 
on  issues  between  other  parties;  (138  Am.  St.  Rep.  451,  468)  on  admissibility  of 
evidence  of  books  of  account. 

Distinguished   in   Fleming  v.  Yost,   137   Ind.  97,  36  N.  E.   705,  holding  book 
entries  of  payments,  contemporaneously  made,  admissible  to  show  consideration 
for  conveyance. 
—  When    transcript    admissible. 

Cited  in  Texas  &  P.  Coal  Co.  v.  Lawson,  10  Tex.  Civ.  App.  501,  31  S.  W.  843, 
holding  where  originals  in  court,  transcript  of  account  made  by  competent  book- 
keeper, admissible. 

Evidence  of  expert  as  to  conclusions    deduced  from  intricate  accounts  or 
calculations. 

Cited  in  Guarantee  Co.  of  N.  A.  v.  Mutual  Bldg.  &  L.  Asso.  57  111.  App.  263; 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Wolcott,  141  Ind.  278,  50  Am.  St.  Rep.  320,  39 
N.  E.  451,  holding  accountant  may  testify  as  to  contents  of  voluminous  and 
complicated  books  from  abstract  made  from  originals ;  Bee  Pub.  Co.  v.  World  Pub. 
Co.  59  Neb.  722,  82  N.  W.  28,  holding  testimony  of  decrease  of  business  based 
on  examination  of  books,  improper  without  their  production;  Shover  v.  Myrick, 
4  Ind.  App.  16,  30  N.  E.  207,  holding  expert  may  testify  as  to  expectancy,  using 
standard  mortality  tables. 
Secondary  evidence. 

Cited  in  New  La  Junta  &  L.  Canal  Co.  v.  Kreybill,  17  Colo.  App.  36,  67  Pac. 
1026,  holding  oral  testimony  as  to  contents  of  voluminous  documents  admissible, 
where  documents  open  to  inspection  affording  ample  opportunity  for  cross- 
examination  of  witness. 

7  L.  R.  A.  495,  THOMPSON  v.  REASONER,  122  Ind.  454,  24  N.  E.  223, 
Enforceability    of    judgment    nntil    reversed. 

Cited  in  Lake  Erie  &  W.  R.  Co.  v.  Smith,  61  Fed.  887,  to  point  judgment  ren- 
dered by  court  in  exercise  of  its  jurisdiction  justifies  acts  enforcing  it  until  it  is 
reversed  or  set  aside;  Boos  v.  Morgan,  140  Ind.  207,  39  N.  E.  919,  holding  en- 
forcement of  judgment  rendered  by  court  in  exercise  of  its  jurisdiction  will  not 
be  enjoined  unless  reversed  or  set  aside. 

Cited  in  note   (45  L.  R.  A.  801)   on  liability  for  tort  in  doing  acts  authorized 
by  judgment  afterwards  reversed. 
Restitution  on  reversal  of  judgment. 

Cited  in  Chicago  &  S.  E.  R,  Co.  v.  Adams,  26  Ind.  App.  445,  59  N.  E.  1087, 
holding  law  raises  obligation  against  one  benefited  by  judgment  thereafter  re- 
versed to  make  restitution;  Hess  v.  Deppen,  125  Ky.  430,  101  S.  W.  362,  15  A. 

6  E.  Ann.  Cas.  670,  holding  an  action  for  damages  cannot  be  sustained  upon  the 
reversal  of  a  judgment  for  acts  done  pursuant  to  it  as  for  a  tort. 

Cited  in  note  (96  Am.  St.  Rep.  145)  on  restitution  on  reversal  of  judgments. 
Drains    and    sewers. 

Cited  in  notes  (60  L.R.A.  223)  on  procedure  for  the  establishment  of  drains 
and  sewers,  as  to  wrongful  acts;  (6  L.R.A.  (N.S.)  1149)  on  joinder  of  parties 
in  suit  to  restrain  pollution  of  water  course. 

7  L.  R.  A.  498,  RAPP  v.  REEHLIXG,  124  Ind.  36,  23  N.  E.  777. 
Contracts    made    on    Sunday. 

Cited  in  Bryan  v.  Watson,  127  Ind.  44,  11  L.  R.  A.  64,  26  N.  E.  666,  holding 


1339  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  500 

(subscription  to  liquidate  church  indebtedness,  made  on  Sunday,  valid;  Donovan 
v.  McCarty,  155  Mass.  546,  30  N.  E.  221,  holding  assignment  of  property  in  trust 
by  severely  injured  woman,  made  on  Sunday,  not  illegal. 

Cited  in  footnotes  to  First  M.  E.  Church  v.  Donnell,  46  L.R.A.  858,  which 
sustains  subscription  to  church  indebtedness  made  on  Sunday;  Rodman  v.  Robin- 
son, 65  L.R.A.  682,  which  sustains  Sunday  contract  for  purchase  and  sale  of 
real  estate. 

Cited  in  note  (14  L.  R.  A.  195)  on  Sunday  labor. 
Wills;     construction. 

Cited  in  Hawes  v.  Kepley,  28  Ind.  App.  311,  62  N.  E.  720,  holding  words  cannot 
be  supplied  to  make  will  conform  with  testator's  supposed  intention. 

7  L.  R.  A.  500,  HUNN  v.  MICHIGAN  C.  R,  CO.  78  Mich.  513,  44  N.  W.  502. 
Duty  of  master  in   management  of  business. 

Cited  in  Doyle  v.  Toledo  S.  &  M.  R.  Co.  127  Mich.  98,  54  L.  R.  A.  463,  89  Am. 
St.  Rep.  456.  86  N.  W.  524,  holding  railroad  company  liable  for  defective  con- 
dition of  another's  roof  over  spur  track  where  brakemen  required  to  go  for  cars; 
Card  v.  Eddy,  129  Mo.  529,  36  L.  R.  A.  812,  28  S.  W.  979  (dissenting  opinion), 
majority  holding  manner  of  delivering  messages  to  railroad  employees  not  part 
of  master's  duty;  Schwarzschild  &  S.  Co.  v.  Weeks,  72  Kan.  196,  4  L.R.A. (N.S.) 
519,  83  Pac.  406,  holding  master  owes  his  servant  a  positive  duty  to  use  rea- 
sonable precautions  to  protect  him  from  injury;  Lellis  v.  Michigan  C.  R.  Co. 
1 24  Mich.  42,  70  L.R.A.  600,  82  X.  W.  828,  holding  railroad  company  not  liable 
for  injury  to  switchman  caused  by  reason  of  negligence  of  inspector  in  failing 
to  inspect  car  where  company  provided  a  competent  inspector. 

Cited  in  footnote  to  St.  Louis,  A.  &  T.  R.  Co.  v.  Triplett,  11  L.  R.  A.  773,  which 
holds  master's  duty  to  protect  repair  track  not  fulfilled  by  adopting  rule  suf- 
ficient if  faithfully  observed  by  employees. 

Cited  in  notes  (8  L.  R,  A.  819)  as  to  duty  of  master  to  instruct  servant  in  use 
of  dangerous  machinery;  (12  L.  R.  A.  97)  as  to  master's  liability  for  negligence 
of  coservant  acting  under  authority;  (54  L.  R.  A.  92,  94,  173)  on  vice  principal- 
ship  as  determined  with  reference  to  the  character  of  the  act  which  caused  the 
injury. 
Who  are  fellow  servants. 

Cited  in  Missouri,  K.  &  T.  R,  Co.  v.  Elliott,  42  C.  C.  A.  201,  102  Fed.  108;  Clyde 
v.  Richmond  &  D.  R.  Co.  69  Fed.  678;  Baltimore  &  O.  R.  Co.  v.  Camp,  13  C.  C.  A. 
240,  31  U.  S.  App.  213,  65  Fed.  960;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Heck,  151 
Ind.  314,  50  X.  E.  988, —  all  holding  train  despatchei  not  fellow  servant  with 
trainman;  Bloyd  v.  St.  Louis  &  S.  F.  R.  Co.  58  Ark.  71,  41  Am.  St.  Rep.  88,  22  S.  W. 
1089,  holding  foreman  of  bridge  gang  not  fellow  servant  with  workmen  under 
him:  Lellis  v.  Michigan  C.  R.  Co.  124  Mich.  42,  82  N.  W.  828,  holding  inspector 
of  car  loads  of  lumber  received  from  other  roads  fellow  servant  with  switchman; 
Anderson  v.  Michigan  C.  R.  Co.  107  Mich.  612,  65  N.  W.  585  (dissenting  opin- 
ion), majority  holding  brakeman  not  fellow  servant  with  section  man;  Wallace 
v.  Boston  &  M.  R.  Co.  72  N.  H.  516,  57  Atl.  913,  holding  train  despatcher  not 
fellow  servant  of  brakeman;  Morrison  v.  San  Pedro,  L.  A.  &  S.  L.  R.  Co.  32 
Utah,  95,  88  Pac.  998,  holding  test  to  be  whether  negligent  act  causing  injury 
was  breach  of  positive  duty  owed  by  master  to  the  injured  servant;  Edge  v. 
Southwest  Missouri  Electric  R.  Co.  206  Mo.  492,  104  S.  W.  90,  holding  a  train 
despatcher  empowered  to  give  orders  as  to  sidetracking  cars  meeting  others  rep- 
resents the  master  and  is  i  ot  a  fellow  servant  with  conductor  and  moterman. 

Cited  in  footnotes  to  Baltimore  &  0.  R.  Co.  v.  An.):  -.vs,  17  L.  R.  A.  190,  which 
holds  conductor  and  engineer  fellow  servants  of  brakeman  on  other  train;  Clark 


7  L.R.A.  500]  L.  R.  A.  CASES  AS  AUTHORITIES.  1340 

v.  Pennsylvania  Co.  17  L.  R.  A.  811,  which  holds  section  boss  of  one  gang  and 
member  of  another  gang  fellow  servants;  Palmer  v.  Michigan  C.  R.  Co.  17  L.  R. 
A.  637,  which  holds  assistant  road  master  not  fellow  servant  of  gang  of  men 
working  under  him;  Fisher  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  16  L.  R.  A.  519, 
which  holds  section  foreman  and  conductor  not  fellow  servants;  Daniel  v. 
Cheasapeake  &  O.  R.  Co.  16  L.  R.  A.  383,  which  holds  conductor  and  brakeman 
on  different  trains  not  fellow  servants;  Wischam  v.  Rickards,  10  L.  R.  A.  97, 
which  holds  factory  employee  assisting  servants  of  one  delivering  flywheel, 
servant  of  latter. 

Cited  in  notes  (51  L.  R.  A.  521,  578,  606,  613)  as  to  vice  principalship  con- 
sidered with  reference  to  the  superior  rank  of  a  negligent  servant;  (25  L.  R.  A. 
388,  390,  392)  as  to  train  despatcher  and  telegraph  operator  as  fellow  servants 
of  trainmen;  (18  L.R.A.  828)  as  to  superior  employees;  (75  Am.  St.  Rep.  596, 
624,  638,  639)  on  who  is  a  vice  principal. 

Distinguished  in  Beesley  v.  F.  W.  Wheeler  &  Co.  103  Mich.  210,  27  L.  R.  A.  270. 
61  N.  W.  658,  holding  riveter  and  carpenters  under  same  superintendent  to  be 
fellow  servants;  Schroeder  v.  Flint  &  P.  M.  R.  Co.  103  Mich.  217,  29  L.  R.  A.  323, 
50  Am.  St.  Rep.  354,  61  N.  W.  663,  holding  foreman  of  gang  unloading  and  level- 
ing dirt  on  railroad,  a  fellow  servant  of  member  thereof. 
Effect  of  contributory  negligence  of  fellow  servant. 

Cited  in  Noble  v.  Bessemer  S.  S.  Co.  127  Mich.  113,  54  L.  R.  A.  460,  footnote  p. 
456,  89  Am.  St.  Rep.  461,  86  N.  W.  520,  holding  master's  liability  from  defective 
tool  not  defeated  by  fellow  servant's  knowledge  of  the  defect;  McGinn  v.  Mc- 
Cormick,  109  La.  402,  33  So.  382,  holding  master  liable  for  injury  due  to  com- 
bined negligence  of  master  and  fellow  servant;  Lutz  v.  Atlantic  &  P.  R.  Co.  6  X. 
M.  529,  16  L.  R.  A.  833,  30  Pac.  912  (dissenting  opinion),  majority  holding 
master  not  liable  for  injury  proximately  caused  by  negligence  of  fellow  servant, 
although  itself  negligent  in  part;  La  Barre  v.  Grand  Trunk  W.  R.  Co.  133  Mich. 
197,  94  N.  W.  735,  holding  an  assistant  roadmaster  rendered  the  master  liable 
where  negligent;  Howard  v.  Beldenville  Lumber  Co.  129  Wis.  113,  108  X.  \V. 
48,  hold-ing  contributory  act  of  a  coemployee  is  not  a  defense  where  injury 
resulted  from  piece  of  wood  falling  through  a  hole  negligently  left  open  by 
employer;  Lockwood  v.  Tennant,  137  Mich.  308,  100  N.  W.  562,  holding  an 
employee  injured  without  fault  on  his  part,  may  recover  against  a  master  who 
is  negligent,  even  though  negligence  of  a  fellow-servant  contributed  to  the  injury ; 
Gordon  v.  Chicago,  R.  I.  &  P.  R.  Co.  129  Iowa,  753,  106  N.  W.  177,  holding 
right  of  recovery  exists  in  favor  of  servant  against  a  master  whose  negligence 
combines  with  negligence  of  a  fellow-servant;  La  Barre  v.  Grand  Trunk  W.  R. 
Co.  133  Mich.  198,  94  N.  W.  735,  on  contributory  negligence  of  fellow-servant 
as  affecting  right  of  recovery. 

Cited  in  footnotes  to  Farrell  v.  Eastern  Machisery  Co.  68  L.R.A.  239,  which 
sustains  master's  liability  for  death  of  employee  through  providing  unfit  material 
for  staging  though  staging  was  constructed  by  another  employee  with  power  to 
reject  unfit  materials;  Towne  v.  United  Electric  G.  &  P.  Co.  70  L.R.A.  214, 
which  holds  corporation  maintaining  poles  to  support  electric  wires  which  fur- 
nishes ordinary  pike  poles  in  good  condition  for  handling  such  poles  not  liable 
for  injury  to  employee  caused  by  fellow-servant's  use  of  dull  pike  pole  in  taking 
down  pole. 

Cited  in  notes  (16  L.R.A.  819,  822)  as  to  relation  of  proximate  cause  doc- 
trine to  rule  of  liability  of  master  for  injuries  to  his  servant  caused  by  combined 
negligence  of  himself  and  a  fellow  servant;  (4  L.R.A. (N.S.)  517)  on  negligence 
of  fellow  servant  concurring  with  failure  to  establish  or  enforce  proper  rules 
for  conduct  of  business. 


1341  L.  E.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  500 

Effect  of  customary  violation  of  rules. 

Cited  in  Fluhrer  v.  Lake  Shore  &  M.  S.  R.  Co.  121  Mich.  217,  80  N.  W.  24,  and 
Nichols  v.  Chicago  &  W.  M.  R.  Co.  125  Mich.  397,  84  X.  W.  470,  both  holding 
violation  of  employer's  rules  defeats  recovery,  unless  its  violation  is  so  universal 
and  notorious  that  an  inference  of  employer's  approval  of  such  violation  arises; 
Fluhrer  v.  Lake  Shore  &  M.  S.  R.  Co.  124  Mich.  483,  83  N.  W.  149,  holding 
violation  of  employer's  rule  no  bar  to  recovery  for  injuries  received  thereby, 
where  rule  is  customarily  violated;  Wright  v.  Southern  P.  Co.  14  Utah,  397.  40 
Pac.  374,  holding  evidence  of  custom  to  uncouple  cars  while  in  motion  admissible 
to  rebut  claim  of  negligence  in  disregarding  rules  forbidding  same;  Ashman  v. 
Flint  &  P.  M.  R.  Co.  90  Mich.  576,  51  N.  W.  645,  and  Eastman  v.  Lake  Shore  & 
M.  S.  R.  Co.  101  Mich.  602,  60  N.  W.  309,  both  holding  negligent  nature  of  step- 
ping between  cars  to  uncouple  them  while  in  motion  question  for  jury;  Grand 
v.  Michigan  C.  R.  Co.  83  Mich.  576,  11  L.  R.  A.  407,  47  N.  W.  837  (dissenting 
opinion),  majority  holding  railroad  not  liable  under  statutes  requiring  blocked 
switches,  for  death  of  brakeman  entering  between  cars  in  motion  to  uncouple 
them  knowing  that  they  are  passing  over  unblocked  "split"  switch;  De  Cair  v. 
Manistee  &  G.  R.  Co.  133  Mich.  581,  95  N.  W.  726,  holding  custom  of  employees 
of  road,  in  coupling  cars,  to  go  in  front  of  moving  cars  was  admissible  in  evi- 
dence; Burch  v.  Southern  P.  Co.  32  Nev.  128,  104  Pac.  225,  Ann.  Gas.  1912B, 
1166;  Johnson  v.  Burke,  167  Mich.  354,  132  N.  W.  1017,— holding  that  rule 
habitually  violated  by  employees,  with  employer's  knowledge  may  be  treated 
as  abrogated. 

Cited  in  note  (43  L.  R.  A.  367)  as  to  duties  of  master  and  servant  with  re- 
gard to  rules  promulgated  for  the  safe  conduct  of  a  business. 

Distinguished  in  Ball  v.  Hauser,  129  Mich.  399,  89  N.  W.  49,  holding  peril  as- 
sumed by  employee  voluntarily  riding  on  elevator  after  warning  that  he  did  so 
at  his  own  risk  though  employees  were  occasionally  permitted  to  ride. 
Mortuary    tables    and    scientific    books    as    evidence. 

Cited  in  Grouse  v.  Chicago  &  N.  W.  R.  Co.  102  Wis.  208,  78  N.  W.  446,  and 
Joliet  v.  Blower,  155  111.  417,  40  N.  E.  619,  holding  mortuary  tables  admissible 
as  tending  to  show  life  expectancy;  Nelson  v.  Lake  Shore  &  M.  S.  R.  Co.  104 
Mich.  589,  62  N.  W.  993,  holding  mortality  tables  conclusive  of  life  expectancy 
in  absence  of  evidence  to  show  greater  or  less  probability  of  life;  Vicksburg 
R.  Power  &  Mfg.  Co.  v.  White,  82  Miss.  472,  34  So.  331,  holding  mortuary  tables 
made  up  by  actuaries  from  a  list  of  selected  risks  are  not  admissible  where  it 
is  not  shown  deceased  persons  belonged  to  same  class. 

Cited  in  note  (40  L.  R.  A.  555)  as  to  scientific  books  and  treatises  as  evidence. 
Appellate  jurisdiction  over  damages. 

Cited  in  Retan  v.  Lake  Shore  &  M.  S.  R.  Co.  94  Mich.  157,  53  N.  W.  1094,  re- 
fusing to  disturb  verdict  for  excessive  damages,  where  nothing  tending  to 
prejudice  defendant's  rights  or  to  inflame  jury,  is  shown;  Boggess  v.  Metropolitan 
Street  R.  Co.  118  Mo.  341,  24  S.  W.  210  (concurring  opinion),  refusing  reversal 
for  inadequacy  of  damages,  where  evidence  conflicting  and  prejudice  not  apparent 
from  inadequacy;  Burdict  v.  Missouri  P.  R.  Co.  123  Mo.  250,  26  L.  R.  A.  400,  45 
Am.  St.  Rep.  528,  27  S.  W.  453  (dissenting  opinion),  majority  holding  that 
part  should  remit  excess  of  damages,  and  take  affirmance  for  residue  or  submit 
to  new  trial;  McDonald  v.  Champion  Iron  &  Steel  Co.  140  Mich.  413,  103  X.  W. 
829,  holding  a  verdict  which  has  no  evidence  upon  which  to  base  it  is  erroneous 
and  error  may  be  assigned  upon  it  without  making  motion  for  a  new  trial. 

Cited  in  note  (26  L.  R.  A.  395)  as  to  power  of  appellate  court  to  interfere  with 
verdict  or  excessive  damages. 

Distinguished  in  Brockmiller  v.  Industrial  Works.   148  Mich.  649,  112  X.  W. 


7  L.R.A.  500]  L.  R.  A.  CASES  AS  AUTHORITIES.  1342 

688,   holding  question  of  excessiveness  of  verdict,  where  there  was  evidence   to 
support  it  will  not  be  reviewed  unless  motion  for  new  trial  is  made  and  denied 
by  trial  court. 
Evidence  of  niaintiff's   property. 

Distinguished  in  Arndt  v.  Bourke,  120  Mich.  266,  79  N.  W.  191,  holding  admis- 
sion of  evidence  of  plaintiff's  lack  of  means  harmless,  where  admitted  solely  in 
rebuttal  of  evidence  of  counsel's  contingent  fee,  and  not  considered  in  estimating 
damages. 
Of  habits  of  Industry  in  death  action. 

Cited  in  Shall  v.  Detroit  &  M.  K.  Co.  152  Mich.  471,  116  N.  W.  432,  holding 
habits  of  industry  of  deceased  are  proper  evidence  of  damage  in  action  for  death. 
Damages  recoverable. 

Cited  in  Richmond  v.  Chicago  &  W.  M.  R.  Co.  87  Mich.  391,  49  N.  W.  621, 
holding  that  mother  and  sister  may  recover  for  the  negligent  killing  of  decedent 
according  to  pecuniary  injury  suffered. 
Effect    npon    action    of    survival    after    injury. 

Cited  in  Sweetland  v.  Chicago  &  G.  T.  R.  Co.  117  Mich.  348,  43  L.  R.  A.  575,  75 
N.  W.  1066  (concurring  opinion),  holding  action  for  decedent's  pain  and  suffer- 
ing not  within  act  for  survival  of  actions  for  negligent  injuries  to  person. 

7  L.  R.  A.  507,  PINKERTON  v.  VERBERG,  78  Mich.  573,  18  Am.  St.  Rep.  473, 

44  N.  W.  579. 
Arrest    without    warrant. 

Cited  in  Re  Kellan,  55  Kan.  702,  41  Pac.  960,  holding  officer  cannot  arrest  for 
minor  offenses  not  committed  in  his  presence  or  view;  Klein  v.  Pollard,  149 
Mich.  204,  10  L.R.A.(N.S.)  1010,  119  Am.  St.  Rep.  670,  112  N.  W.  717,  holding 
a  police  officer  is  not  justified  in  arresting  a  woman  quietly  walking  the  streets 
of  a  city  at  night  simply  because  she  emerges  from  a  disreputable  saloon;  People 
v.  Stark,  2  111.  C.  C.  165,  holding  offense  must  be  committed  in  presence  of  officer 
making  the  arrest  to  justify  arrest  without  a  warrant. 

Cited  in  notes  (51  L.R.A.  210)  arrest*  without  warrant  not  made  on  view; 
(13  L.R.A.  (N.S.)  881)  on  right  of  officer  to  arrest  without  a  warrant  one 
verbally  abusing  him  or  interfering  in  performance  of  duty;  (84  Am.  St.  Rep. 
683,  688,  692,  694)  on  right  of  policeman  to  make  arrest. 

Distinguished  in  North  v.  People,  139  111.  105,  28  N.  E.  966,  holding  officer  may 
arrest  for  misdemeanor  committed  in  his  presence  if  only  remedy  of  stopping  or 
redressing  offense. 
Infringing1    right    of    locomotion. 

Cited  in  St.  Louis  v.  Roche,  128  Mo.  547,  31  S.  W.  915,  holding  ordinance  for- 
bidding one  to  knowingly  associate  with  reputed  thieves,  burglars,  or  gamblers 
invalid;  St.  Louis  v.  Gloner,  210  Mo.  510,  15  L.R.A.(N.S.)  976,  124  Am.  St.  Rep. 
750,  109  S.  W.  30,  holding  a  person  may  stand  for  a  period  of  two  hours  each  day 
upon  a  particular  street  in  a  populous  city,  if  he  conducts  himself  in  a  peaceful 
orderly  manner. 
Powers  of  municipal  corporations  as  to  disorderly  persons. 

Distinguished  in  Re  Stegenga.  133  Mich.  62,  61  L.R.A.  765,  94  N.  W.  385,  holding 
that  municipal  corporation  under  charter  authority  to  punish  disorderly  persons, 
may  provide  for  punishment  of  loiterers  in  streets  and  barrooms;  Re  Stegenga, 
133  Mich.  62,  61  L.R.A.  763,  94  N.  W.  385,  holding  ordinance  valid  which  declares 
disorderly  and  punishes  as  such,  one  loitering  in  any  barroom  or  wandering  about 
streets  without  lawful  means  of  support. 


1343  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  511 

Evidence  of  specific   Instances  to   prove   character. 

Cited  in  note  (14  L.R.A.  (N.S.)  756)  on  evidence  of  specific  instances  to  prove 
character. 
False  imprisonment. 

Cited  in  note  (67  Am.  St.  Rep.  417)  on  false  imprisonment. 

7  L.  R.  A.  511,  COFRODE  v.  GARTNER,  79  Mich.  332,  44  N.  W.  623. 
Jurisdiction   in   case   of   nonresidents. 

Cited  in  Eingartner  v.  Illinois  Steel  Co.  94  Wis.  77,  34  L.  R.  A.  506,  59  Am.  St. 
Rep.  859,  68  N.  W.  664,  holding  resident  of  one  state  may  sue  resident  of  same 
state  on  transitory  cause  of  action  arising  therein,  in  courts  of  other  state; 
Sleight  v.  Swanson,  127  Mich.  439,  86  N.  W.  1010,  holding  foreign  plaintiff  may 
sue  foreign  defendant  before  justice  of  peace;  State  Bank  v.  Maxson,  123  Mich. 
253,  81  Am.  St.  Rep.  196,  82  N.  W.  32,  holding  nonresident  may  sue  personally 
served  nonresident,  on  foreign  contract,  in  county  where  debtor's  property  found; 
Bradbury  v.  Chicago,  R.  I.  &  P.  R.  Co.  149  Iowa,  59,  40  L.R.A.(N.S)  684,  128 
X.  W.  1,  holding  that  cause  of  action  arising  in  foreign  country  may  be  main- 
tained in  our  courts,  though  jurisdiction  may  be  declined;  Daniels  v.  Detroit, 
G.  H.  &  M.  R.  Co.  163  Mich.  473,  128  N.  W.  797,  holding  that  action  against 
carrier  for  negligent  injury,  sustained  in  foreign  jurisdiction,  may  be  maintained 
here;  Southern  Pacific  Co.  v.  Dusablon,  48  Tex.  Civ.  App.  207,  106  S.  W.  766, 
on  actions  brought  under  laws  of  another  state;  Olympia  Min.  &  Mill.  Co.  v. 
Kerns,  64  Wash.  550,  117  Pac.  260,  holding  that  it  is  discretionary  for  courts 
to  refuse  to  assume  jurisdiction  of  action  between  nonresidents  upon  contract 
to  be  performed  in  another  state,  where  title  to  land  only  is  involved. 

Cited  in  footnote  to  Robertson  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  66  L.R.A. 
919,  which  holds  widow  residing  in  one  state  of  resident  of  such  state  who  was 
negligently  killed  in  another  state  entitled  to  benefit  of  statute  of  latter  state 
making  negligent  party  liable  therefor  and  requiring  amount  of  recovery  to  be 
paid  widow. 

Cited  in  notes   (59  Am.  St.  Rep.  874)   on  right  to  prosecute  transitory  causes 
of  action  in  other  jurisdiction;    (85  Am.  St.  Rep.  926)   on  jurisdiction  of  foreign 
corporations;    (70  L.R.A.  536,  537,  538,  539,  543)    on  right  of  nonresidents  to 
sue  foreign  corporations. 
— —  Attachment    snlts. 

Cited  in  Newland  v.  Reilly,  85  Mich.  154,  48  N.  W.  544,  holding  foreign  plain- 
tiff in  action  against  foreign  defendant  may  garnishee  resident  debtor  of  latter; 
Tootle  v.  Coleman,  57  L.  R.  A.  124,  46  C.  C.  A.  136,  107  Fed.  45,  holding  creditor 
may  garnish  resident  debtor  of  foreign  defendant,  though  garnished  claim  pay- 
able out  of  state. 

Cited  in  note  (67  L.R.A.  218)  as  to  where  debt  garnishable. 

Distinguished  in  Reimers  v.  Seatco  Mfg.  Co.  30  L.  R.  A.  367,  17  C.  C.  A.  232, 
37  U.  S.  App.  426,  70  Fed.  577,  holding  foreign  creditor  cannot  garnish  claim  of 
foreign  debtor  against  foreign  garnishee,  such  claim  being  payable  out  of  state. 
Appearance   of   defendant. 

Cited  in  Ferguson  v.  Oliver,  99  Mich.  162,  41  Am.  St.  Rep.  593,  58  N.  W.  43, 
holding  jurisdiction  of  Canadian  court  on  general  appearance  of  defendant  not 
lost  by  dismissing  defense  for  insufficiency  of  pleading:  People  use  of  Wipfler 
v.  Fidelity  &  D.  Co.  163  Mich.  100,  127  N.  W.  765,  holding  that  foreign  corpo- 
ration may  consent  to  acceptance  of  service  in  state  where  it  is  transacting 
business. 


7  L.R.A.  511]  L.  E.  A.  CASES  AS  AUTHORITIES.  1344 

Privilege;    service    of    process. 

Cited  in  Hoffman  v.  Bay  County  Circuit  Judge,  113  Mich.  110,  38  L.  R.  A.  664, 
€7  Am.  St.  Rep.  458,  71  N.  W.  480,  holding  attorney  exempt  from  service  of  proc- 
ess while  attending  court  in  another  county. 
Equal    privileges. 

Cited  in  note   (14  L.  R.  A.  583)   on  constitutional  equality  of  pi  Alleges,  im- 
munities, and  protection. 
Nature  of  motion  for  change  of  venae. 

Cited  in  Lyle  v.  Cass  Circuit  Judge,  157  Mich.  40,  121  N.  W.  300.  holding  a 
motion  for  a  change  of  venue  invokes  discretionary  judicial  action. 

7  L.  R.  A.  517,  POWERS  v.  JEUDEVINE,  61  Vt.  587,  18  Atl.  778. 
Devise,    when    absolute. 

Cited  in  Meacham  v.  Graham,  98  Tenn.  206,  39  S.  W.  12,  holding  where  ex- 
pression in  will  doubtful,  devise  deemed  absolute;  Podaril  v.  Clark.  118  Iowa, 
274,  91  N.  W.  1091  (dissenting  opinion),  majority  holding  estate  lev  life  with 
privilege  of  sale  or  conveyance  during  lifetime  not  a  fee. 

Cited  in  footnotes  to  Williams  v.  Baptist  Church,  54  L.  R.  A.  427,  which  holds 
absolute  gift,  not  trust,  created  by  bequest  to  church  and  "suggesting"  as  to  ap- 
plication; Jewell  v.  Louisville  Trust  Co.  53  L.  R.  A.  377,  which  denies  creation 
of  precatory  trust  by  will  of  merchant  expressing  desire  for  retention  on  liberal 
terms  of  specified  person  in  employ  of  firm  of  which  testator  a  partner. 

Cited  -in  notes  (10  L.R.A.  757)  as  to  when  absolute  estate  vests  under  devise; 
(37  L.R.A.(N.S.)  666)  on  creation  of  trust  by  precatory  words  in  will. 

Disapproved  in  Hoefliger  v.  Hoefliger,,  132  Iowa,  577,  107  N.  W.  312,  holding 
the  giving  of  the  widow  full  control  during  her  natural  life  did  not  take  any- 
thing from  the  estate  devised. 
Absolute   devise,   when    cut   down   by   subsequent   terms. 

Cited  in  Mulvane  v.  Rude,  146  Ind.  482,  45  N.  E.  659,  holding  gift  over  of 
portion  of  absolute  devise  remaining  at  first  taker's  death,  void  for  repugnancy; 
Meacham  v.  Graham,  98  Tenn.  208,  39  S.  W.  12,  holding  limitation  inconsistent 
with  absolute  power  of  disposition  previously  given  in  will  void. 

Cited  in  footnotes  to  Snider  v.  Baer,  13  L.  R.  A.  359,  which  holds  fee  not  cut 
down  to  life  estate  by  clause  giving  legatee  sole  control  during  lifetime;  Morgan 
v.  Halsey,  36  L.  R.  A.  716,  which  holds  power  of  appointment  of  property  to 
testatrix's  daughter  in  any  manner  she  may  deem  proper  limited  by  subsequent 
clauses  of  will. 

Cited  in  note  (139  Am.  St.  Rep.  89)  on  devise  or  bequest  for  life  with  power 
of  disposal. 

7  L.  R.  A.  524,  STEELE  v.  SIOUX  VALLEY  STATE  BANK,  79  Iowa,  339,  13 
Am.  St.  Rep.  370,  44  N.  W.  564. 

Grantee   in   quitclaim   as   affected   by   equities. 

Cited  in  Hannan  v.  Seidentopf,  113  Iowa,  662,  86  N.  W.  44;  Knapp  v.  Paine, 
95  Iowa,  67,  63  N.  W.  575;  Young  v.  Charnquist,  114  Iowa,  125,  86  N.  W.  205, 
—  holding  grantee  under  quitclaim  deed  not  entitled  to  protection  against  prior 
equities;  Parker  v.  Randolph,  5  S.  D.  553,  29  L.  R.  A.  35,  59  N.  W.  722,  holding 
grantee  in  a  quitclaim  deed  not  a  bona  fide  purchaser;  United  States  v.  Cali- 
fornia &  O.  Land  Co.  1  C.  C.  A.  337,  7  U.  S.  App.  128,  49  Fed.  503.  to  point 
grantee  under  quitclaim  deed  chargeable  with  constructive  notice  of  actual  right 
and  title  of  his  grantor,  and  may  not  rely  on  visible  possession  or  recorded  muni- 
ments of  title;  Wickham  v.  Henthorn,  91  Iowa,  244,  59  N.  W.  276,  holding  un- 
recorded conveyance  takes  precedence  over  subsequent  quitclaim  deed  duly  i\.- 


1345  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  527 

corded;  Minneapolis  &  St.  !•.  R.  Co.  v.  Chicago,  M.  &  St.  P.  R.  Co.  116  Iowa,  68S, 
88  N.  W.  1082,  holding  corporation  taking  quitclaim  deed  not  protected  against 
prior  deed;  Fowler  v.  Will,  19  S.  D.  134,  117  Am.  St.  Rep.  938,  102  N.  \Y.  .V.is. 
8  A.  &  E.  Ann.  Cas.  1093,  holding  a  quitclaim  deed  comprehends  no  more  than 
is  actually  owned  by  the  party  executing  it,  and  as  to  interest  already  gone, 
Is  of  no  effect;  /Etna  L.  In?.  Co.  v.  Stryker,  38  Ind.  App.  331,  78  N.  K.  iM.~>. 
holding  the  quitclaim  deed  serves  to  pass  only  the  present  interest  of  the  grantor. 

Cited  in  notes  (29  L.R.A.  46)  on  protection  of  quitclaim  purchaser;  (105 
Am.  St.  Rep.  859)  on  effect  of  quitclaim  deeds  under  registration  laws. 

Disapproved  in  Schott  v.  Dosh,  49  Neb.  194,  59  Am.  St.  Rep.  531,  68  N.  W.  346, 
holding  purchaser  in  good  faith  and  without  notice  under  recorded  quitclaim  deed 
takes  precedence  of  grantee  under  prior  unrecorded  conveyance. 
Dower  designates  widow'*  interest. 

Cited  in  Ditson  v.  Ditson,  85  Iowa,  282,  52  N.  W.  203,  to  point  word  "dower" 
still  used  in  Iowa  to  designate  interest  which  law  gives  widow  in  lands  of  hus- 
band. 

7  L.  R.  A.  527,  DONNEGAN  v.  EARHARDT,  119  N.  Y.  468,  23  X.  E.  1051. 
Liability  of  railroad   to   fence. 

Cited  in  Terre  Haute  &  I.  R.  Co.  v.  Williams,  172  111.  382,  64  Am.  St.  Rep. 
44,  50  N.  E.  116,  holding  railroad  liable  for  death  of  engineer  caused  by  collision 
with  cattle  straying  on  track  through  defective  fence;  Atchison,  T.  &  S.  F.  R. 
Co.  v.  Reesman,  23  L.  R.  A.  771,  9  C.  C.  A.  24,  19  U.  S.  596,  60  Fed.  375,  holding 
employee  injured  by  derailment  of  train  caused  by  failure  of  statutory  duty  to 
fence  can  recover  of  railroad;  Dickson  v.  Omaha  &  St.  L.  R.  Co.  124  Mo.  149, 
25  L.  R.  A.  324,  46  Am.  St.  Rep.  429,  27  S.  W.  476,  holding  railroad  liable  for 
death  of  engineer  due  to  collision  with  bull  straying  onto  track  through  defective 
fence;  Robertson  v.  New  York,  7  Misc.  646,  28  N.  Y.  Supp.  13,  holding  railroad 
company  not  obliged  to  fence  track  to  keep  people  from  falling  from  embank- 
ment upon  it:  Mcmlizabal  v.  New  York  C.  &  H.  R.  R.  Co.  89  App.  Div.  388,  85 
N.  Y.  Supp.  896,  holding  railroad  company  liable  for  injury  of  employee  by 
derailment  of  car  caused  by  cow  on  track;  International  &  G.  N.  R.  Co.  v.  Rich- 
mond, 28  Tex.  Civ.  App.  516.  67  S.  W.  1029,  holding  railroad  liable  for  killing 
stock  of  third  person  straying  through  opening  in  fence  left  by  agreement  with 
landowner:  International  &  G.  N.  R.  Co.  v.  Thompson,  34  Tex.  Civ.  App.  69,  77 
S.  W.  439,  holding  where  injuries  result  from  collision  between  train  and  cattle 
on  track,  the  failure  to  fence  is  sufficient  evidence  of  negligence  to  take  case  to 
jury;  Lee  v.  Brooklyn  Heights  R.  Co.  97  App.  Div.  112,  89  N.  Y.  Supp.  652, 
holding  under  statute  failure  to  erect  and  maintain  fences  of  sufficient  height 
and  strength  rendered  the  company  liable  for  resulting  damages;  Bateman  v. 
Rutland  R.  Co.  126  App.  Div.  512,  110  N.  Y.  Supp.  506,  holding  where  the 
duty  to  fence  and  maintain  cattle  guards  is  made  absolute  by  statute  it  is 
immaterial  that  animals  trespass  upon  track. 

Cited  in  footnote  to  Atchison,  T.  &  S.  F.  R.  Co.  v.  Reesman,  23  L.  R.  A.  768, 
which  holds  company  liable  for  injury  to  brakeman  from  derailment  of  train 
due  to  failure  to  maintain  fences. 

Cited  in  notes  (8  L.  R.  A.  139)  on  liability  of  railroad  company  for  death  or 
injury  to  cattle  by  failure  to  fence;  (25  L.  R.  A.  320)  on  obligation  of  railroad 
company  to  employees  as  to  fencing  track;  (12  L.  R.  A.  181)  on  duty  of  rail- 
road company  to  fence  its  tracks;  (37  L.  ed.  U.  S.  729;  9  L.R.A.(N.S.)  344. 
364)  on  duty  of  railroad  to  fence  right  of  way;  (20  Am.  St.  Rep.  162)  on 
duty  of  railroad  company  as  to  cattle  on  track. 
L.R.A.  Au.  Vol.  I.— sr>. 


7  L.R.A.  527]  L.  R.  A.  CASES  AS  AUTHORITIES.  1346 

Distinguished  in  Carper  v.  Kimball,  35  L.  R.  A.  141,  23  C.  C.  A.  675,  42  IL 
S.  App.  282,  78  Fed.  100,  holding  recovery  not  allowable  for  death  of  employee 
due  to  collision  with  cattle  on  track,  when  statute  did  not  require  whole  line  to 
be  fenced;  Wabash  R.  Co.  v.  Gaull,  116  111.  App.  445,  holding  no  liability  results 
from  failure  to  fence  by  reason  of  injuries  to  one  driving  upon  highway  and 
injured  through  his  horses  becoming  frightened  at  embankments  lawfully  con- 
structed; Bateman  v.  Rutland  R.  Co.  54  Misc.  315,  105  N.  Y.  Supp.  970,  holding 
in  absence  of  absolute  liability  clause  in  connection  with  failure  to  provide 
cattle  guards,  no  liability  resulted  from  injury  to  animals  straying  upon  tracks 
over  cattle  guards,  not  wilfully  or  recklessly  injured;  Nielsen  v.  Chicago.  B.  & 
Q.  R.  Co.  109  C.  C.  A.  225,  187  Fed.  395,  holding  that  railroad  is  not  liable 
for  injury  to  fireman  caused  by  derailment  of  locomotive  by  cattle  which  strayed 
upon  unfenced  railroad. 
Liability  for  faulty  construction  and  repair. 

Cited  in  Mulvaney  v.  Brooklyn  City  R.  Co.  1  Misc.  426,  21  N.  Y.  Supp.  427, 
holding  railroad  liable  for  injury  to  brakeman  due  to  improperly  constructed 
curve  of  track;  True  v.  Lehigh  Valley  R.  Co.  22  App.  Div.  591,  48  N.  Y.  Supp.  86, 
holding  duty  of  railroad  to  inspect  bluff  from  side  of  which  shale  was  known  to 
slide  upon  track;  Lynch  v.  New  York  C.  &  H.  R.  R.  Co.  8  App.  Div.  462,  40  N. 
Y.  Supp.  775,  holding  railroad  liable  for  injury  to  passenger  due  to  loaded  stone 
car  running  down  gravity  road  built  partly  on  quarry  and  partly  on  railroad; 
Terre  Haute  &  I.  R.  Co.  v.  Williams,  69  111.  App.  394,  holding  railroad  liable 
for  death  of  engineer  wrecked  by  cattle  coining  on  track,  where  there  was  no 
cattle  guard;  Pitcher  v.  Lennon,  16  Misc.  610,  38  N.  Y.  Supp.  1007,  holding  owner 
of  building  liable  for  death  due  to  its  collapse  by  reason  of  construction  in 
violation  of  statute. 

Cited  in  note  (22  Am.  St.  Rep.  788)  on  duty  of  carrier  as  to  construction 
of  roadbed. 

Distinguished  in  Hebert  v.  Delaware  &  H.  Canal  Co.  41  N.  Y.  S.  R.  863,  16 
N.  Y.  Supp.  561,  holding  railroad  not  liable  for  death  of  yard  man  on  engine 
colliding  with  loaded  wagon  in  yard;  Richmond  v.  New  York  C.  &  H.  R.  R.  Co. 

8  App.  Div.  386,  40  N.  Y.  Supp.  812,  holding  railroad  not  liable  for  injury  to 
employee  due  to  wire  stretched  across  its  track  without  its  consent. 

7  L.  R.  A.  529,  HALL  v.  PILLSBURY,  43  Minn.  33,   19  Am.  St.  Rep.  209,  44 

N.  W.  673. 
Title    to    grain    in    warehouse. 

Cited  in  Herrick  v.  Barnes,  78  Minn.  478,  81  N.  W.  526,  holding  bank  has 
title  to  grain  for  which  storage  tickets  were  issued  to  it,  and  which  was  with- 
drawn with,  other  wheat  by  warehousemen  and  sold;  Jackson  v.  Sevatson,  79 
Minn.  278,  82  N.  W.  634,  holding  depositors  of  wheat  in  warehouse  may  main- 
tain action  against  third  person  for  conversion;  Rice  v.  Madelia  Farmers  Ware- 
house Co.  78  Minn.  124,  80  N.  W.  853,  to  point  relation  between  depositor  of 
grain  and  warehousemen  that  of  bailor  and  bailee,  and  title  to  grain  whether 
kept  separate  or  commingled  remains  in  depositor;  State  v.  Northwestern  Ele- 
vator Co.  101  Minn.  194,  112  N.  W.  68,  holding  it  is  owned  by  receipt  holders 
as  tenants  in  common;  Gordon  v.  Freeman,  112  Minn.  487,  128  N.  W.  834, 
holding  that  possession  of  warehouse  receipt  is  constructive  possession  of  prop^ 
erty;  Re  Canadian  P.  R.  Co.  17  Ont.  Pr.  Rep.  279,  holding  that  railroad  is 
bailee  of  wheat  deposited  in  its  elevator  with  other  grain  of  like  grade. 

Cited  in  notes  (25  L.R.A.  (N.S.)  781)  on  right  of  one  leaving  property  in 
warehouse  as  against  latter's  vendees  or  creditors;  (94  Am.  St.  Rep.  221)  on 
bailment  of  cereals  in  warehouse;  (101  Am.  St.  Rep.  918)  on  confusion  of  goods. 


3347  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  533 

Right   to   store-    ur:iiii    In   own   warehouse. 

Cited  in  footnote  to  Central  Elevator  Co.  v.  People,  43  L.  R.  A.  658,  which 
denies  right  of  licensed  warehouseman  to  deal  in  and  store  grain  in  own  licensed 
warehouse. 
Liability  of  warehouseman. 

Cited  in  footnotes  to  Moses  v.  Teetors,  57  L.  R.  A.  267,  which  denies  ware- 
houseman's liability  to  owner  for  destruction  by  fire  of  wheat  stored  at  owner's 
risk;  State  v.  Cowdery,  48  L.  R.  A.  92,  which  holds  flax  stored  in  warehouse 
"grain"  within  statute  regulating  warehousemen. 

Cited  in  note    (136  Am.  St.  Rep.  239)    on  duty  of  warehousemen   in  care  of 
property. 
Public    warehouseman. 

Cited  in  footnote  to  State  v.  Chicago,  M.  &  St.  P.  R.  Co.  38  L.  R.  A.  672, 
which  holds  void  statute  requiring  carriers  to  turn  over  to  public  warehouseman 
all  property  not  called  for  within  twenty  days. 

7  L.  R.  A.  533,  ROCHE  v.  WATERS,  72  Md.  264,  19  Atl.  535. 
Payment     of    taxes    by    life     tenant. 

Cited   in. notes    (32   L.R.A.    745)    on   duty   of   life   tenant  to  pay  taxes;    (10 
L.R.A.  (N.S.)    344)    as  to  whether  life  tenant  on  remainderman  must  bear  cost 
of  public  improvement. 
Jurisdiction   of  chancery. 

Cited  in  Coleman  v.  Virginia  Stave  &  Heading  Co.  112  Va.  76,  70  S.  E.  545, 
holding  that  purchaser  under  proceedings  to  sell  infant's  lands  is  required  to 
see  to  regularity  of  proceedings  upon  which  jurisdiction  depends. 

Cited  in  footnotes  to  Sloane  v.  Martin,  28  L.  R.  A.  347,  which  denies  necessity 
of  actual  service  on  infants  in  suit  for  sale  of  land  in  which  they  have  interest; 
Warren  v.  Union  Bank,  43  L.  R.  A.  256,  which  holds  void,  mortgage  of  infant's 
property  under  order  of  court  for  sole  purpose  of  paying  unauthorized  debt  in- 
curred by  guardian;  Richards  v.  East  Tennessee,  V.  &  G.  R.  Co.  45  L.  R.  A.  712, 
which  sustains  power  of  court  of  chancery  to  order  sale  of  entire  interest  of 
minors  in  land  on  ex  parte  petition  in  term  time;  Pitts  v.  Rhode  Island  Hospital 
Trust  Co.  48  L.  R.  A.  783,  which  authorizes  allowance  necessary  for  infant's 
maintenance  out  of  trust  fund  provided  for  his  education. 

Cited    in   note    (120   Am.   St.   Rep.   658)    on   inherent   equity   jurisdiction    to 
decree  sale  of  land  of  minors. 
Statutes  validating  or  invalidating;  judgment. 

Cited  in  Willis  v.  Hodson,  79  Md.  331,  29  Atl.  604,  holding  legislature  without 
power  to  make  a  judgment  rendered  without  jurisdiction  valid  and  binding; 
Re  Christiansen,  17  Utah,  428,  41  L.  R.  A.  509,  70  Am.  St.  Rep.  794,  53  Pac. 
1003,  holding  legislature  cannot  validate  void  judgments;  McManus  v.  Hornaday, 
124  Iowa,  271,  104  Am.  St.  Rep.  316,  100  N.  W.  33,  2  A.  &  E.  Ann.  Cas.  237, 
holding  the  controversy  having  been  once  adjudicated  in  due  form  of  law.  tlie 
legislature  is  without  power  by  special  act  to  nullify  it;  Halming  v.  Forrester, 
87  Xeb.  441,  127  N.  W.  373,  holding  that  curative  act  which  attempts  to  take 
away  vested  property  rights  is  void;  United  States  v.  Aakervik,  180  Fed.  146, 
holding  time  having  wholly  elapsed  in  which  government  could  apply  for  re- 
hearing or  new  trial  suit  to  vacate  order  admitting  to  citizenship  does  not  lie 
under  a  later  naturalization  act. 


7  L.R.A.  537]  L.  R.  A.  CASES  AS  AUTHORITIES.  1348 

7  L.  R.  A.  537,  SIEGEL  v.  CHICAGO  TRUST  &  SAV.  BANK,  131  111.  569,  19  Am. 

St.  Rep.  51,  23  N.  E.  417. 
jVegotiability    of    note. 

Cited  in  Biegler  v.  Merchants'  Lean  &  T.  Co.  164  111.  203,  45  N.  E.  512,  Af- 
firming 62  111.  App.  569,  holding  recital  to  destroy  negotiability  of  note  must 
make  promise  uncertain  or  conditional ;  Buchanan  v.  Wren,  10  Tex.  Civ.  App. 
566,  30  S.  W.  1077,  holding  statement  of  consideration  not  disclosing  fraud  or 
illegality  does  not  affect  validity  or  negotiability  of  note;  Buchanan  v.  Wren, 
10  Tex.  Civ.  App.  568,  30  S.  W.  1077,  holding  note  given  for  rent  for  unexpired 
term  negotiable;  Brooke  v.  Struthers,  110  Mich.  576,  35  L.  R.  A.  543,  68  X.  W. 
272,  holding  note  secured  by  mortgage  not  negotiable,  where  mortgage  provides 
•whole  debt  becomes  due  on  mortgagor's  failure  to  pay  taxes  and  assessments; 
Huber  v.  Brown,  148  111.  App.  410,  holding  fact  that  purchaser  knew  loan  was 
building  loan  and  would  be  paid  as  building  progressed  is  no  defense  in  a  suit 
on  note;  Zollman  v.  Jackson  Trust  &  Sav.  Bank,  141  111.  App.  217,  holding  such 
fact  does  not  affect  negotiability  of  note;  First  Nat.  Bank  v.  Lightner,  74  Kan. 
741,  8  L.R.A.(N.S.)  234,  118  Am:  St.  Rep.  353,  88  Pac.  59,  holding  statement  of 
consideration  though  it  appears  as  for  an  executory  contract  does  not  destroy 
negotiability  of  instrument;  Zollman  v.  Jackson  Trust  £  Sav.  Bank,  238  111. 
293,  32  L.R.A.(N.S.)  863,  87  X.  E.  297,  holding  a  recital  upon  a  note  to  destroy 
its  negotiability,  must  be  of  a  kind  that  in  some  respects  qualifies,  or  makes  un- 
certain or  conditional  the  promise;  First  Nat.  Bank  v.  Badham,  86  S.  C.  207, 
138  Am.  St.  Rep.  1043,  68  S.  E.  536,  to  the  point  that  statement  of  consideration 
in  note  does  not  affect  negotiability. 

Cited  in  footnote  to  Gordon  v.  Anderson,  12  L.  R.  A.  483,  which  holds  note 
payable  to  certain  person,  "et  al.  or  order'  non-negotiable. 

Cited  in  notes  (8  L.R.A.  394)  as  to  requisites  to  negotiability;  (30  L.R.A. 
(X.S. )  40)  on  reference  to  extrinsic  agreement  as  affecting  negotiability;  (125 
Am.  St.  Rep.  196)  on  agreements  and  conditions  destroying  negotiability. 

Distinguished  in  Hovorka  v.  Hemmer,   108  111.  App.  445,  holding  instrument 
payable  upon  publication  of  an  advertisement,  not  negotiable. 
\oii.-e    as    letting    in    defenses. 

Cited  in  Fox  v.  Citizens'  Bank  &  T.  Co.  (Tenn.  Ch.  App.)  35  L.  R.  A.  681, 
37  S.  W.  1102,  holding  note  taken  before  maturity  or  failure  of  consideration 
free  from  equities,  although  recitals  show  consideration  was  future  and  con- 
tingent; Weber  v.  Rosenheim,  37  111.  App.  73,  holding  notice  that  consideration 
of  note  is  executory  does  not  prevent  indorsee  for  value  before  maturity  from 
laking  it  free  from  defenses  because  consideration  afterward  fails;  United  States 
ISTaL  Bank  v.  Floss,  38  Or.  72,  84  Am.  St.  Rep.  752,  62  Pac.  751,  holding  breach 
•of  executory  contract  forming  consideration  for  note  not  a  defense  against  in- 
dorsee for  value  before  maturity  with  notice  of  contract,  but  not  of  its  breach ; 
Webber  v.  Indiana  Xat.  Bank,  49  111.  App.  343,  holding  notice  of  fact  exciting 
.inquiry  not  notice  of  ultimate  fact  to  assignee  of  note  before  maturity; 
Bank  v.  Hatcher,  151  X.  C.  362,  134  Am.  St.  Rep.  989,  66  S.  E.  308,  holding  even 
though  statement  of  the  transaction  which  gives  rise  to  the  negotiable  instrument 
is  contained  on  its  face  the  indorsee  is  not  affected  with  notice  of  infirmity  where 
at  is  taken  from  payee  without  recourse. 
•Consideration  for  note. 

Cited  in  Merchants'  Bank  v.  Dunlop,  9  Manitoba  L.  Rep.  626,  on  forbear- 
ance as  constituting  consideration  for  promise  to  pay. 

Cited  in  note  (24  Am.  St.  Rep.  428)  on  consideration  for  promissory  note. 


L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  548 

7  L.  R.  A.  539,  REDMOND  v.  TARBORO,  100  X.  C.  122,  10  S.  E.  845. 
]•:<!  u:ili(.v    of    taxation. 

Cited  in  Wiley  v.  Salisbury,  111  N.  C.  400,  16  S.  E.  542,  holding  all  taxes 
must  be  laid  by  one  uniform  rule;  United  Brethren  v.  Forsyth  County,  115  N. 
C.  493,  20  S.  E.  626,  holding  credits  and  secured  notes  belonging  to  religious 
society  whose  income  is  used  exclusively  for  educational,  religious,  and  charit- 
able purposes,  exempt. 

Cited  in  note  (8  L.  R.  A.  271)  on  taxation  ad  valorem. 
Taxable    property. 

Cited  in  Wood  v.  Edenton,  106  N.  C.  153,  10  S.  E.  854,  holding  notes,  bonds, 
and  solvent  credits  owned  by  a  resident  against  residents  and  nonresidents  taxable 
by  municipality;  Wiley  v.  Salisbury,  111  N.  C.  404,  16  S.  E.  542,  holding  stock 
in  corporation  doing  business  outside  of  town,  though  owned  by  its  residents,. 
is  taxable  only  at  its  principal  place  of  business;  Winston  v.  Beeson,  135  X.  C. 
277,  65  L.  R.  A.  170,  47  S.  E.  457,  holding  dealing  in  trading  stamps  not  taxable 
as  a  gift  enterprise. 

Cited  in  footnote  to  Hamilton  v.  Wilson,  48  L.  R.  A.  238,  which  holds  void, 
statute  for  taxation  of   personal   judgments  with   specified  exceptions. 
Adopted  construction  of  statute. 

Cited  in   Harper  v.   Pinkston,   112  N.   C.   301,   17   S.   E.   161,  holding  statute 
adopted  from  that  of  another  state  presumed  to  have  been  enacted  with  knowl- 
edge of  judicial  construction  there  given  it. 
Construction  of  limitations  on  taxation. 

Cited  in  Collie  v.  Franklin  County,  145  N.  C.  181,  59  S.  E.  44,  holding  pro- 
hibition   of   constitution   against   doubling   the   state   tax   for   county   expenses, 
is  restricted  to  taxation  for  county  purposes,  strictly  speaking. 
Meaning:    of    "property." 

Cited  in  Worth  v.  Wright,  122  N.  C.  336,  29  S.  E.  361,  holding  license  tax  on 
sale  of  pianos,  property  which  may  be  collected  by  state  treasurer;  State  ex  rel. 
Louisiana  Improv.  Co.  v.  Board  of  Assessors,  111  La.  995,  36  So.  91,  holding 
municipal  bonds  embraced  by  statute  taxing  "all  property,  rights  and  credits." 

7  L.  R.  A.  548,  MOOSE  v.  CARSON,  104  N.  C.  431,  17  Am.  St.  Rep.  681,  10  S, 

E.  689. 
Dedication    of    street. 

Cited  in  McClellan  v.  Weston,  49  W.  Va.  679,  55  L.  R.  A.  906,  39  S.  E.  670, 
holding  adverse  possession  cannot  be  maintained  against  city  of  any  portion  of 
street  duly  laid  out  and  platted  under  statute;  State  v.  Higgs,  126  X.  C.  1022, 
48  L.  R.  A.  449,  35  S.  E.  473,  holding  indictment  of  abutting  owner  under 
ordinance  requiring  removal  of  signs,  not  sustained,  if  sign  does  not  obstruct 
passage  on  street;  Smith  v.  Goldsboro,  121  N.  C.  354,  28  S.  E.  479,  holding; 
vendor  of  lots  on  street  subsequently  taken  into  city,  estopped  from  denying  to 
city  right  to  furnish  purchasers  light  and  water;  State  v.  Fisher,  117  N.  C.  7-40, 
23  S.  E.  158,  holding  entry  on  street  in  addition  to  city  under  license  by  city, 
does  not  operate  as  acceptance  of  street  by  city;  Hughes  v.  Clark,  134  X.  C.  460, 
46  S.  E.  95G,  and  Davis  v.  Morris,  132  N.  C.  436,  43  S.  E.  950,  holding  sale  of 
lots  with  reference  to  street,  dedication  thereof  as  between  parties;  Price  v. 
Stratton,  45  Fla.  543.  33  So.  644;  Bailliere  v.  Atlantic  Shingle,  Cooperage  & 
Veneer  Co.  150  N.  C.  637,  64  S.  E.  754, — holding  sale  of  lots  in  accordance  and 
recognition  of  a  map  or  plat  in  which  streets  are  laid  out  constitutes  a  dedication 
of  the  streets;  Milliken  v.  Denny,  141  N.  C.  227,  53  S.  E.  867,  holding  dedication 


7  L.R.A.  548]  L.  R.  A.  CASES  AS  AUTHORITIES.  1350 

may  be  either  by  express  language,  reservation  or  by  conduct  showing  an  intention 
to  dedicate;  State  v.  Godwin,  145  X.  C.  4G5,  122  Am.  St.  Rep.  467,  59  S.  E.  132, 
holding  question  of  dedication  dependent  somewhat  upon  plat  and  map  describing 
street  and  sale  of  lots  thereafter  fronting  on  it;  Pence  v.  Bryant,  54  W.  Va.  267, 
46  S.  E.  275,  holding  acceptance  by  long  usage  of  dedicated  public  street  estops 
owner  from  retraction,  though  there  has  been  no  formal  acceptance  by  city. 

Cited  in  note  (122  Am.  St.  Rep.  218)  on  grant  of  easement  in  street  by  impli- 
cation on  sale  of  land  by  municipality. 

Distinguished  in  Milliken  v.  Denny,  135  N.  C.  22,  47  S.  E.  132,  holding  mere 
bounding  of  land  conveyed  on  alley  not  sufficient  to  support  action  for  obstruc- 
tion of  such  alley;  Church  v.  Dula,  148  N.  C.  265,  61  S.  E.  639,  holding  where 
street  laid  off  on  map  had  never  been  used  for  street  purposes  and  no  improve- 
ments had  been  made  revocation  was  possible. 
When  statute  of  limitations  run*  agrainst  municipality. 

Cited  in  Turner  v.  Hillsboro,  127  N.  C.  155,  37  S.  E.  191,  holding  statute  of 
limitations  runs  against  a  municipality  giving  power  to  alienate  streets  and 
other  public  lands;  New  Bern  v.  Wadsworth,  151  N.  C.  312,  66  S.  E.  144,  hold- 
ing no  length  of  time  or  adverse  user  would  bar  or  destroy  an  easement  acquired 
by  the  public  in  land  for  street  purposes. 

Cited  in  note  (76  Am.  St.  Rep.  494)  on  adverse  possession  of  public  property. 
Power  of  alienation  of  public  property. 

Cited  in  Southport  v.  Stanly,  125  N.  C.  467,  34  S.  E.  641,  holding  lease  by 
town  officials  of  property  devoted  to  use  of  town,  ultra  vires;  Elizabeth  City  v. 
Banks,  150  N.  C.  413,  22  L.R.A.(X.S.)  933,  64  S.  E.  189,  holding  commissioners 
of  a  town  cannot,  without  legislative  authority,  sell  a  street  or  park;  Tise  v. 
Whitaker-Harvey  Co.  144  N.  C.  514,  57  S.  E.  210,  holding  deed  conveying  public 
way  void,  and  the  right  of  way  uneffected,  so  far  as  the  public  is  concerned; 
Laurel  v.  Rowell,  84  Miss.  440,  36  So.  543,  holding  the  closing  of  a  street  in 
order  to  put  a  corporation  in  possession  is  ultra  vires;  Butler  v.  Penn  Tobacco  Co. 
152  N.  C.  419,  68  S.  E.  12,  holding  town  authorities  hold  streets  in  trust  for 
purposes  of  public  traffic  and,  in  absence  of  statutory  authority  grant  right  to 
obstruct  such  street,  even  for  public  purposes. 

Distinguished  in  Crowell  v.  Monroe,  152  N.  C.  401,  67  S.  E.  989,  holding  the 
closing  of  a  railroad  crossing  in  order  that  on  over  head  bridge  may  be 
erected  for  use  of  public  is  not  a  taking  of  private  property  for  public  use  and 
damages  are  dam  sum  absque  injuria. 

Disapproved  in  Johnston  v.  Lonstorf,  128  Wis.  27,  107  X.  W.  459,  holding  the 
common  council  of  city  has  no  power  to  vacate  a  public  alley  without  making 
compensation  to  abutting  lot  owners. 
Abutting;  owner's   proprietary   ri.ulits. 

Cited  in  Tate  v.  Greensboro,  114  X.  C.  404,  24  L.  R.  A.  674,  19  S.  E.  767  (dis- 
senting opinion),  majority  holding  city  can  cut  down  shade  trees  in  sidewalk  in 
front  of  lot  without  compensating  owner;  White  v.  Xortlnvestern  Xorth  Carolina 
R.  Co.  113  N.  C.  621,  22  L.  R.  A.  631,  37  Am.  St.  Rep.  639,  18  S.  E.  330,  holding 
steam  railroad  cannot  be  maintained  in  street  without  compensating  abutting 
owner  for  loss  of  proprietary  rights;  Kray  v.  Muggli,  84  Minn.  99,  54  L.  11.  A. 
480,  87  Am.  St.  Rep.  332,  86  X.  W.  882,  holding  riparian  owner  with  prescrip- 
tive right  to  maintain  water  in  stream  as  obstructed  by  dam  can  bring  action 
to  prevent  removal  of  dam;  Long  v.  Wilson,  119  Iowa,  272,  60  L.  R.  A.  7-2-2, 
W  Am.  St.  Rep.  315,  93  X.  W.  282,  holding  abutting  owner  not  bound  by  de- 
cree to  which  he  was  not  a  party,  changing  boundaries  of  street:  Moore  v. 
iMeroney,  154  X.  C.  161,  69  S.  E.  838,  holding  that  legislature  has  no  power  to 


1351  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  5.51 

vacate  or  abandon  street  without  compensating  abutting  owners;  Smith  v.  Beloit, 
122  Wis.  416,  100  X.  \V.  877,  holding  rights  of  abutting  owners  in  highway  con- 
stitute rights  in  property  which  the  owner  is  not  to  be  deprived  without  com- 
pensation; Hester  v.  Durham  Traction  Co.  138  X.  C.  293,  1  L.R.A.(X.S.) '  985, 
50  S.  E.  711,  holding  the  abutting  proprietor  has  no  more  right  in  the  side- 
walk than  in  the  roadway;  Borghart  v.  Cedar  Rapids,  126  Iowa,  316,  68  L.R.A. 
307,  101  N.  W.  1120,  holding  the  abutter  has  a  right  unshared  by  the  com- 
munity which  cannot  be  taken  away  without  answering  in  damages;  Staton  v. 
Atlantic  Coast  Line  R.  Co.  147  X/C.  435,  17  L.R.A.(X.S.)  953,  61  S.  E.  455, 
holding  soil  over  which  streets  are  laid  are  impressed  with  trust,  subject  to 
rights  of  public,  for  the  use  and  benefit  of  lot  owners  abutting  on  said  street. 

Cited  in  footnote  to  Lostutter  v.  Aurora,  12  L.  R.  A.  259,  which  authorizes  city 
to  fit  up  abandoned  well  in  street  without  abutting  owner's  consent. 

Cited  in  notes  (10  L.  R.  A.  268)  on  damages  for  obstruction  of  street  by  street 
railroad;  (10  L.  R.  A.  276)  on  rights  of  abutting  lot  owners  in  street;  (11  L. 
R.  A.  636)  on  servitude  of  light  and  air;  (11  L.  R.  A.  750)  on  right  of  com- 
missioners to  close  highway;  (14  L.  R.  A.  372)  on  injury  to  abutters'  easements 
of  light,  air,  and  access  by  vacating  street,  changing  grade,  etc.;  (26  L.  R.  A. 
459)  on  abandonment  of  highway  by  nonuser  or  otherwise  than  by  act  of  public 
authorities;  (26  L.  R.  A.  663)  on  effect  of  abandonment  of  highway;  (26  L.  R. 
A.  822)  on  discontinuance  or  vocation  of  highway  by  public  authorities;  (14 
L.R.A.  (X.S.)  880)  on  effect  on  grantee's  right  to  call  in  deed  for  street  or  alley 
in  which  grantor  owns  fee. 

7  L.  R.  A.  551,  SHATTUCK  v.  WATSON,  53  Ark.  147,  13  S.  W.  516. 
Contract  to  compound  crime. 

Cited  in  Kirkland  v.  Benjamin,  67  Ark.  480,  55  S.  W.  840,  holding  notes  exe- 
cuted in  procure  dismissal  of  criminal  prosecution  void;  Burton  v.  McMillan, 
52  Fla.  476,  8  L.R.A.  (N.S.)  993,  120  Am.  St.  Rep.  220,  42  So.  849,  11  A.  &  E. 
Ann.  Cas.  38,  holding  the  maxim  "in  pari  delicto"  does  not  apply  to  a  case 
where  a  married  woman  sues  to  set  aside  a  deed  of  her  separate  property. 
made  bv  her  under  express  or  implied  threats  of  prosecution  of  her  husband 
for  embezzlement  and  to  save  him  from  such  prosecution  whether  such  prose- 
eution  was  lawful  or  unlawful. 

Cited  in  footnote  to  William  Deering  &  Co.  v.  Cunningham,  54  L.  R.  A.  410, 
which  holds  void,  contract  to  withdraw  opposition  to  granting  of  pardon. 

Cited  in  note  (22  Am.  St.  Rep.  539)  on  remedy  of  parties  in  pari  delicto. 
Duress. 

Cited  in  Langley  v.  Andrews,  142  Ala.  671,  38  So.  238,  as  to  what  constitutes; 
Chambers  v.  Irish,  132  la.  324,  109  X.  W.  787,  holding  threat  to  cancel  contract  by 
legal  process  not  duress. 

Cited  in  footnotes  to  First  Xat.  Bank  v.  Sargent,  59  L.  R.  A.  296,  which  sus- 
tains right  to  recover  back  money  paid  under  duress;  Flack  v.  Xational  Bank  of 
Commerce,  17  L.  R.  A.  583,  which  holds  threat  by  bank  to  institute  proceed- 
ings to  collect  unmatured  note  not  duress:  Springfield  F.  &  M.  Ins.  Co.  v.  Hull, 
25  L.  R.  A.  37,  which  upholds  right  to  maintain  suit  for  balance  due  on  policy 
without  tendering  back  less  sum  accepted  under  threats  of  groundless  prosecu- 
tion; Galusha  v.  Sherman,  47  L.  R.  A.  417,  which  holds  threats  rendering 
person  incapable  of  exercising  free  will  in  contracting,  duress. 

Cited  in  notes  (9  L.  R.  A.  633)  on  what  constitutes  duress;  (16  L.  R.  A.  376) 
on  duress  by  lien  on  real  property;  (26  L.  R.  A.  52)  on  contracts  procured  by 
threats  on  prosecution  of  relative. 


7  L.R.A.  553]  L.  R.  A.  CASES  AS  AUTHORITIES. 

7  L.  R.  A.  553,  COCHRAX  v.  MATTHIESSEX,  119  X.  Y.  399,  23  N.  E.  803. 
Stockholders'  liability  for  corporate  debts. 

Cited  in  Marshall  v.  Sherman,  148  N.  Y.  28.  34  L.  R.  A.  767,  51  Am.  St.  Rep. 
654,  42  N.  E.  419,  refusing  to  locally  enforce  stockholder's  liability  under  statute 
of  another  state;  Sea  ton  v.  Grimm,  110  Iowa,  151,  SI  X.  W.  225,  holding  stock- 
holder not  liable  for  debt  of  corporation  because  notice  required  upon  incorpora- 
tion not  given;  Matteson  v.  Dent,  176  U.  S.  528,  44  L.  ed.  575,  20  Sup.  Ct.  Rep. 
419,  holding  heirs  of  stockholder  in  whose  name  corporate  shares  stood  at  death 
properly  assessed  for  debt  of  corporation;  Thompson  v.  Xicolai,  21  Misc.  708, 
49  N.  Y.  Supp.  422,  holding  assignee  of  creditor  can  maintain  action  against  a 
single  stockholder  for  debt  of  corporation;  Close  v.  Brady,  4  Misc.  479,  24  X.  Y. 
Supp.  567  (dissenting  opinion),  majority  holding  that  stockholder  may  show 
date  when  corporation  note  was  actually  issued  to  escape  liability;  Berwind- 
White  Coal  Min.  Co.  v.  Ewart,  11  Misc.  492,  32  N.  Y.  Supp.  716,  holding  liability 
of  stockholder  of  corporation  organized  under  Laws  1875,  chap.  611,  for  debts 
incurred,  until  filing  of  certificate  that  increased  capital  is  paid  in,  preserved  by 
saving  clause  of  repealing  acts  of  1890  and  1892;  Close  v.  Potter,  155  N.  Y.  151, 
49  X.  E.  686;  Re  Remington  Automobile  &  Motor  Co.  119  Fed.  444,  holding 
obligation  of  stockholder  to  creditors  of  corporation  until  stock  subscribed  for 
and  paid  in,  contractual;  Barnes  v.  Arnold,  23  Misc.  207.  51  X.  Y.  Supp.  1109. 
holding  liability  of  stockholders  to  creditors  under  banking  law  is  contractual, 
not  penal;  Bauer  v.  Parker,  82  App.  Div.  297,  81  N.  Y.  Supp.  995,  holding  indi- 
vidual liability  of  directors  limited  by  statute  to  $5,000  enforceable  in  equity  for 
benefit  of  creditors;  Sanford  v.  Rhoads,  113  App.  Div.  785,  99  X.  Y.  Supp.  407r 
holding  stockholder  liability  contractual,  not  penal. 
What  actions  survive. 

Cited  in  footnotes  to  Aylsworth  v.  Curtis,  33  ^.  R.  A.  110,  which  holds  sur- 
vivable,  action  for  value  of  property  stolen;  Perkins  v.  Stein,  20  L.  R.  A.  862,, 
which  holds  survivable  action  for  negligently  driving  over  person. 

7  L.  R.  A.  555,  STROUGH  v.  WILDER,  119  X.  Y.  530,  23  X.  E.  1057. 
Possession   of   deed. 

Cited  in  Halladay  v.  Gass,  51  App.  Div.  540,  64  X.  Y.  Supp.  825,  holding- 
possession  of  deed  evidence  not  only  of  delivery,  but  that  possessor  is  grantee 
named  in  it;  Ranken  v.  Donovan,  115  App.  Div.  652,  100  XT.  Y.  Supp.  1049r 
holding  production  of  deed  raises  a  presumption  of  delivery  as  of  the  date  of  the 
instrument. 

Cited  in  notes   (17  Am.  St.  Rep.  348;  53  Am.  St.  Rep.  553)   on  what  is  a  de- 
livery of  a  deed. 
Declarations  of  grantor. 

Cited  in  Hoffman  v.  Hoffman,  6  App.  Div.  85,  39  X.  Y.  Supp.  494,  holding 
declaration  of  grantor  made  at  time  of  executing  deed  to  characterize  act  he  was 
then  doing,  admissible  evidence. 
Unacknowledged   or   unrecorded   instrument. 

Cited  in  Hill  v.  Bartholomew,  71  Hun,  455,  24  N.  Y.  Supp.  944,  holding  un- 
attfested  and  unacknowledged  agreement  as  to  gate  on  right  of  way  valid  as  to 
purchaser  from  heirs  of  one  of  the  parties  thereto;  Concurring  opinion  in  McXally 
v.  Fitzsimmons,  70  App.  Div.  186,  75  X.  Y.  Supp.  331,  to  point  after  voluntary- 
partition  each  heir  becomes  purchaser  from  other  and  is  protected  against  un- 
recorded deed  of  which  he  had  no  knowledge  where  grantee  not  in  possession. 


1353  L.  II.  A.  CASES  AS  AUTHORIT1KS  [7  L.R.A.  557 

7  L.  R.  A.  5.-,7,  YATXS  CO  I  XTY  XAT.  BAXK  v.  CARPENTER,  119  X.  Y.  550, 

1C  Am.  St.  Rep.  855,  23  X.  E.  1108. 
Exemptions. 

Cited  in  People  ex  rel.  Young  Men's  Asso.  v.  Sayles,  23  Misc.  6,  50  N.  Y. 
Supp.  8,  holding  maintenance  of  theatre  and  public  hall  in  part  of  building  does 
not  deprive  corporation  devoted  to  moral  and  intellectual  purposes  of  exemption; 
Reiff  v.  Mack,  160  Pa.  268,  40  Am.  St.  Rep.  720,  28  Atl.  699,  and  Price  v. 
Society  for  Savings,  64  Conn.  366,  42  Am.  St.  Rep.  198,  30  Atl.  139,  holding 
savings  bank  account  covered  by  statute  exempting  "pension  moneys;"  Puget 
Sound  Dressed  Beef  &  Packing  Co.  v.  Jeffs,  11  Wash.  473,  27  L.  R.  A.  811,  48 
Am.  St.  Rep.  885,  39  Pac.  962,  holding  insurance  money  for  exempt  furniture 
destroyed,  exempt  for  reasonable  time;  Mclntosh  v.  Aubrey,  185  U.  S.  124,  46 
L.  ed.  837,  22  Sup.  Ct.  Rep.  561,  holding  statutory  exemptions  of  pension  money 
from  attachment,  etc.,  protect  it  only  until  received  by  pensioner;  St.  Lawrence 
State  Hospital  v.  Fowler,  15  Misc.  163,  37  X.  Y.  Supp.  12,  holding  statutory 
obligation  of  father  to  support  son  not  enforceable  where  pension  father's  only 
income;  United  States  v.  Frizzell,  19  App.  D.  C.  58,  holding  proceeds  of  pension 
not  chargeable  with  payment  of  pensioner's  board  and  medical  attendance  while 
in  government  hospital  after  discharge  from  Army;  Cook  v.  Allee,  119  Iowa,  229, 
93  X.  W.  93,  holding  property  purchased  with  proceeds  of  policy,  exempt  from 
liability  for  debts  of  beneficiary  contracted  prior  to  death  of  assured. 

Cited  in  notes  (22  Am.  St.  Rep.  253)  on  property  exempt  from  execution;   (102 
Am.  St.  Rep.  103)   on  exemption  of  wages,  salaries  and  earnings. 
—  Property    purchased    frith    pension    money. 

Cited  in  People  ex  rel.  Scott  v.  Williams,  6  Misc.  186,  27  X.  Y.  Supp.  23,  hold- 
ing realty  purchased  with  widow's  pension  exempt  from  taxation;  People  ex  rel. 
Canaday  v.  Williams,  90  Hun,  503,  36  X.  Y.  Supp.  65,  striking  property  held  by 
committee  for  discharged  insane  sailor  from  tax  rolls,  when  purchased  with 
pension  money;  Tyler  v.  Ballard,  31  Misc.  542,  65  X.  Y.  Supp.  557,  holding 
judgment  lien  does  not  attach  to  land  purchased  with  pension  money  after  judg- 
ment; Buffum  v.  Forster,  77  Hun,  28,  28  X.  Y.  Supp.  285,  enjoining  execution 
against  realty  purchased  with  pension  money;  Lapolt  v.  Maltby,  10  Misc.  331, 
31  X.  Y.  Supp.  686,  holding  assessors  personally  liable  for  assessing  pensioners 
exempt  realty;  Countryman  v.  Countryman,  23  X.  Y.  Civ.  Proc.  Rep.  l(i.~>.  2s 
N.  Y.  Supp.  260,  holding  mortgage  of  realty  does  not  extinguish  pension  exemp- 
tion; Strong  v.  Walton,  47  App.  Div.  115,  62  X..  Supp.  353,  Affirming  on 
this  point  27  Misc.  305,  57  X.  Y.  Supp.  761,  holding  coal  purchased  with  pension 
money  exempt  from  seizure  for  nonpayment  of  school  taxes;  Toole  v.  Oneida 
County,  13  App.  Div.  473,  37  X.  Y.  Supp.  9,  holding  land  purchased  with  pension 
money  not  liable  to  sale  for  nonpayment  of  taxes;  People  ex  rel.  Kenny  v.  Reilly, 
41  App.  Div.  380,  58  X.  Y.  Supp.  558,  holding  statutory  exemption  of  property 
purchased  with  soldier's  pay  and  bounty  money,  no  greater  than  pension  ex- 
emption; Van  Hise  v.  Rensselacr  County,  21  Misc.  573,  48  X.  Y.  Supp.  874, 
allowing  recovery  of  taxes  paid  on  exempt  realty  to  period  of  limitation;  Re 
Ellithorpe,  111  Fed.  163,  holding  real  estate  partly  purchased  with  pension  money 
not  exempt  where  mortgaged  for  larger  amount  for  investment  in  other  ventures; 
Dargan  v.  Williams,  66  Xeb.  5,  91  X.  W.  802,  holding  property  exchanged  for 
property  purchased  with  pension  money  exempt. 

Cited  in  footnote  to  Johnson  v.  Elkins,  8  L.  R.  A.  552,  which  holds  land  pur- 
chased with  pension  money  and  conveyed  to  wife  liable  for  debts. 

Cited  in  notes  ( 19  L.R.A.  35 )  on  exemption  of  property  purchased  with  pension 


7  L.R.A.  557}  L.  R.  A.  CASES  AS  AUTHORITIES.  J35-I 

money;    (46  L.  ed.  U.  S.  835)   on  exemption  of  property  purchased  with  pension 
money,  or  of  pension  money  after  payment  to  pensioner. 

Distinguished  in  Re  Murphy,  9  Misc.  649,  30  N.  Y.  Supp.  oil.  Holding  realty 
taxable  to  extent  purchase  price  not  pension  money;  Fritz  v.  Worden,  20  App. 
Div.  244,  46  N.  Y.  Supp.  1040,  holding  pension  exemption  lost  by  conveyance  to 
wife  under  secret  agreement,  where  rights  of  innocent  third  party  thereby  affected: 
People  ex  rel.  Jones  v.  Feitner,  157  X.  Y.  3G5,  51  N.  E.  1002,  Affirming  32  App. 
Div.  25,  52  N.  Y.  Supp.  622,  holding  realty  conveyed  to  wife  on  purchase  by 
pensioner,  subject  to  taxation;  Toole  v.  Oneida  County,  16  Misc.  655,  37  N.  Y. 
Supp.  9,  holding  interest  of  wife  taxable  on  conveyance  of  realty  through  third 
party  to  pensioner  and  wife;  Broderick  v.  Yonkers,  22  App.  Div.  448,  48  N.  Y. 
Supp.  265  (dissenting  opinion),  majority  holding  taxes  paid  on  exempt  realty 
not  recoverable  before  assessment  set  aside;  Worden  v.  Oneida  County,  35  App. 
Div.  208,  54  N.  Y.  Supp.  952,  holding  tax  on  realty  valid  where  exemption  not 
claimed  on  grievance  day;  Re  Liddle,  35  Misc.  174,  71  N.  Y.  Supp.  474,  holding 
decedent's  exempt  realty  subject  to  execution  in  payment  of  debts;  Re  King,  24 
App.  Div.  606,  49  N.  Y.  Supp.  1,  holding  exemption  not  determinable  on  ex  parte 
affidavit  in  support  of  motion  to  restrain  execution  against  realty;  Smith  v. 
Blood,  106  App.  Div.  324,  94  N.  Y.  Supp.  667,  holding  exemption  personal  to,  and 
does  not  survive,  pensioner. 

Disapproved  in  Ferguson's  Estate,  140  Wis.  588,  123  N.  W.  123,  17  A.  &  E.  Ann. 
Cas.   1189,   holding  pension  money,  under   federal   statute,  is  not  exempt  from 
claims  of  creditors  of  the  pensioner  after  the  money  has  been  paid  to  him  and 
converted  into  other  property. 
Proceeds    of    exempt    property    generally. 

Cited  in  Bull  v.  Case,  41  App.  Div.,392,  58  N.  Y.  Supp.  774,  holding  exemption 
of  insurance  benefits  does  not  extend  to  securities  purchased  with  insurance 
money;  Bayer  v.  Sack,  66  Misc.  537,  121  N.  Y.  Supp.  1122,  holding  where  property 
of  a  judgment  debtor  exempt  from  execution  is  destroyed  by  fire,  his  judgment 
creditor  may  not  by  an  order  in  supplementary  proceedings  compel  moneys  pay- 
able to  judgment  debtor  under  a  policy  of  insurance  to  be  paid  to  such  creditor, 
but  judgment  debtor  is  entitled  to  receive  and  use  such  moneys  to  replace  articles 
destroyed. 

Cited  in  note  (66  Am.  St.  Rep.  386)  on  exemption  of  proceeds  of  exempt  per- 
sonalty. 

7  L.  R.  A.  559,  CORN  EXC,H.  BANK  v.  FARMERS  NAT.  BANK,  118  N.  Y.  443, 

23  N.  E.  923. 
Liability    of    banks    receiving    paper    for    collection. 

Cited  in  Irwin  v.  Reeves  Pulley  Co.  20  Ind.  App.  128,  48  N.  E.  601  (dissenting 
opinion),  majority  holding  bank  accepting  draft  for  collection  not  liable  for 
default  of  correspondent. 

Cited  in  footnotes  to  Wilson  v.  Carlinville  Nat.  Bank,  52  L.  R.  A.  632.  which 
holds  depositor  of  check  for  collection  estopped  to  object  to  sending  check  directly 
to  drawee  bank  in  accordance  with  custom  known  to  him;  Second  Xat.  Bank  v. 
Merchants'  Nat.  Bank,  55  L.  R.  A.  273,  which  holds  bank  negligent  in  sending 
note  for  collection  to  bank  whose  cashier  is  treasurer  of  corporation  maker  with- 
out hearing  from  similar  note  previously  sent. 

Cited  in  notes   (7  L.  R.  A.  597)  on  banking  check;    (7  L.  R.  A.  845)   on  owner- 
ship of  paper  indorsed  in  blank;   (77  Am.  St.  Rep.  626)  on  duties  of  banks  acting 
as  collecting  agents. 
Of  correspondent  banks. 

Reaffirmed  in  Castle  v.  Corn  Exch.  Bank,  148  N.  Y.  128,  42  X.  E.  51  S,  Affirm- 


1355  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  570 

ing  75  Hun,  91,  26  X.  Y.  Supp.  1035,  holding  bank,  receiving  for  collection  check 
sent  by  other  bank  holding  jjb  only  for  collection,  liable  as  agent  of  latter  bank. 

Cited  in  Bank  of  Clarke  Bounty  v.  Gilman,  81  Hun,  490,  30  N.  Y.  Supp.  1111, 
holding  correspondent  bank  liable  to  owner  for  proceeds  of  commercial  paper  in- 
dorsed for  collection. 

Distinguished  in  Kelley  v.  Phenix  Nat.  Bank,  17  App.  Div.  499,  45  N.  Y.  Supp. 
533,  holding  subagent  liable  to  owners  for  neglect  in  collecting  bonds  transmitted 
for  collection  for  owners. 

7  L.  R.  A.  563,  DANIELS  v.  NEW  LONDON,  58  Conn.  156,  19  Atl.  573. 
Power   of   attorney   to   bind    client. 

Cited  in  note  (132  Am.  St.  Rep.  169)  on  implied  authority  of  attorney  in  con- 
ducting litigation. 

Disapproved  in  effect  Beliveau  v.  Amoskeag  Mfg.  Co.  68  N.  H.  226,  44  L.  R.  A. 
169,  73  Am.  St.  Rep.  577,  40  Atl.  734.  upholding  right  of  discharged  attorney  to 
bind  client  by  receiving  damages  and  giving  satisfaction  of  judgment. 

7  L.  R.  A.  566,  BECK  v.  GERMAN  KLINIK,  78  Iowa,  696,  43  N.  E.  617. 
Special     interrogations^ 

Cited  in  Decatur  v.   Simpson,   115  Iowa,  352,  88  N.  W.  839,  holding  special 
interrogations  calling  for  ultimate  facts  necessary  in  reaching  verdict  should  be 
submitted. 
Liability  of  physician*. 

Cited  in  notes  (11  L.  R.  A.  701,  37  L.  R.  A.  835)  on  liability  of  physicians 
for  negligent  treatment;  (93  Am.  St.  Rep.  658)  on  liability  of  physicians  and 
surgeons  for  negligence  and  malpractice. 

7  L.  R.  A.  568,  GAFFORD  v.  STROUSE,  89  Ala.  283,  18  Am.  St.  Rep.  Ill,  7  So. 

248. 
When    statute    of    limitations    begins    to    ran. 

Cited  in  Stiff  v.  Cobb,  126  Ala.  386,  85  Am.  St.  Rep.  38,  28  So.  402,  holding 
possession  by  real  estate  by  husband  and  wife  residing  together  not  adverse  to 
each  other;  Washington  v.  Norwood,  128  Ala.  389,  30  So.  405,  holding  statute  of 
limitations  begins  to  run  when  cause  of  action  arises;  Anthony  v.  Seedr,  146  Ala. 
197,  40  So.  577,  as  to  limitation  of  time  within  which  donor  may  revoke  verbal 
gift  of  land;  Skinner  v.  State,  76  Conn.  226,  56  Atl.  524,  holding  wife  by  joint 
occupancy  of  property  with  husband  cannot  acquire  a  title  adverse  to  him. 

7  L.  R.  A.  570,  LITTLE  v.  CHADWICK,  151  Mass.  109,  23  N.  E.  1005. 
Following    trust    property. 

Cited  in  O'Brien  v.  New  England  Trust  Co.  183  Mass.  189,  66  N.  E.  794,  hold- 
ing administratrix  of  sheriff  entitled  for  administration  to  fund  deposited  by 
him.  although  composed  partly  of  moneys  belonging  to  others;  Crawford  County 
v.  Strawn,  15  L.R.A.(N.S.)  1107,  84  C.  C.  A.  553.  157  Fed.  54;  John  Deere  Plow 
Co.  v.  McDavid,  70  C.  C.  A.  422,  137  Fed.  812. — holding  where  trust  funds  have 
been  used  by  bankrupt  in  course  of  his  business  the  owner  of  the  funds  is  not 
entitled  to  preference  unless  he  can  prove  that  his  property  is  in  its  original  or 
substituted  form  in  hands  of  trustee:  Lowe  v.  Jones,  192  Mass.  101,  6  L.R.A. 
(X.S.)  490,  116  Am.  St.  Rep.  225.  78  X.  E.  402,  7  A.  &  E.  Ann.  Cas.  551; 
Cherry  v.  Territory,  17  Okla.  223,  8  L.R.A. (X.S.)  1256,  89  Pac.  192,— holding 
when  trust  money  becomes  so  mixed  up  with  trustee's  individual  funds  that  it  is 
impossible  to  trace  it  as  entering  into  some  specific  property  the  trust  ceases; 
AYaddell  v.  Waddell,  36  Utah.  447,  104  Pac.  743,  holding  that  law  presumes  that 


7  L.R.A.  570]  L.  R.  A.  CASES  AS  AUTHORITIES.  1356 

trustee  draws  out  his  oAvn  funds  in  preference  to  trust  funds,  where  he  mingles 
trust  funds  with  his  own. 

Cited  in  footnotes  to  Central  Stock  &  Grain  Exchange  v.  Bendinger,  56  L.  R.  A. 
875,  which  holds  broker  liable  to  refund  to  principal,  money  illegally  taken  from 
agent  as  margins  on  gambling  transaction ;  Indiana,  I.  &  I.  R.  Co.  v.  Swannell, 
30  L.  R.  A.  290,  which  holds  that  property  purchased  by  trustee  for  bondholders 
under  reorganization  arrangement  may  be  followed  into  hands  of  purchaser  from 
him  with  knowledge  of  the  trust. 

Cited  in  note  (15  L.R.A.  (N.S.)  1100)  on  lien  on  commercial  paper  purchased  by 
bank  after  mingling  trust  money  with  own  funds. 

Distinguished  in  Hewitt  v.  Hayes,  205  Mass.  362,  137  Am.  St.  Rep.  448,  91 
N.  E.  332,  holding  that  beneficiary  may  follow  mixed  fund  created  by  trustee  de- 
positing in  bank  money  of  his  own  and  money  which  he  holds  as  trustee;  Harrigan 
v.  Gilchrist,  121  Wis.  250,  99  N.  W.  909,  holding  a  trust  as  to  property  having 
been  established  the  trustee  cannot  end  his  relations  to  the  cestui  que  trust 
by  destroying  the  identity  of  the  subject  of  the  trust,  such  identity  being  lost 
the  trustee  is  yet  liable  to  account  in  equity  to  the  beneficiary  for  the  loss. 
When  funds  capable  of  identification. 

Cited  in  York  v.  York  Market  Co.  68  N.  H.  420,  37  Atl.  1038,  holding  checks 
mingled  with  funds  of  insolvent  company  create  no  charge  when  indistinguishable ; 
Holden  v.  Piper,  5  Colo.  App.  74,  37  Pac.  34,  holding  trust  property  misapplied 
recoverable  if  traceable;  Ferchen  v.  Arndt,  26  Or.  129,  29  L.  R.  A.  666,  footnote 
p.  664,  46  Am.  St.  Rep.  603,  37  Pac.  161,  holding  consignor  cannot  impress  funds 
of  consignee  in  hands  of  receiver  when  not  traceable;  Re  Marsh,  116  Fed.  397, 
holding  right  to  impress  lien  on  assets  of  bankrupt  fails  when  trust  fund  not 
traceable;  Metropolitan  Nat.  Bank  v.  Campbell  Commission  Co.  77  Fed.  708, 
holding  right  of  company  advancing  money  for  purchase  of  cattle  to  establish 
trust  dependent  on  liability  to  locate  property;  Furber  v.  Dane,  203  Mass.  120, 
89  N.  E.  227,  as  to  right  to  follow  pledged  property  when  capable  of  identifi- 
cation. 

Cited  in  notes    (30  L.  R.  A.  290,  56  L.  R.  A.  875)    on  following  trust  funds; 
(8  L.  R.  A.  789)   on  comingling  trust  funds. 
Dissipation    of    public    funds. 

Cited  in  Fire  &  Water  Comrs.  v.  Wilkinson,  119  Mich.  665,  44  L.  R.  A.  498, 
78  N.  W.  893;  Spokane  County  v.  First  Nat.  Bank,  16  C.  C.  A.  84,  29  U.  S.  App. 
707,  68  Fed.  982;  State  v.  Foster,  5  Wyo.  215,  29  L.  R.  A.  250,  63  Am.  St.  Rep. 
47,  38  Pac.  926,  —  holding  public  moneys  deposited  in  insolvent  bank  establish 
no  trust  unless  traceable. 
When  funds  remain  in  insolvent  estate  and  swell  it. 

Cited  in  Standard  Oil  Co.  v.  Hawkins,  33  L.  R.  A.  743,  20  C.  C.  A.  475,  46  U.  S. 
App.  115,  74  Fed.  402,  holding  one  not  precluded  from  impressing  with  trust  lien 
funds  in  hands  of  receiver  when  assets  exceeding  claim  remain;  Ferchen  v. 
Arndt,  26  Or.  129,  29  L.  R.  A.  666,  46  Am.  St.  Rep.  603,  37  Pac.  161,  holding  it 
must  appear  funds  on  hand  to  impress  insolvent  estate  with  lien  for  trust  funds ; 
Independent  Dist.  v.  Beard,  83  Fed.  11,  holding  proof  of  increase  of  property 
sufficient  to  fasten  special  trust  upon  funds  in  hands  of  receiver;  Van  Ingen  v. 
Feldt,  86  Wis.  348,  56  N.  W.  923,  holding  funds  of  lodge  deposited  with  in- 
solvent member  after  assignment  impressed  with  trust. 
Effect  on  beneficiary  of  dissipation  of  trust  funds. 

Cited  in  Burnham  v.  Earth,  89  Wis.  370,  62  N.  W.  96,  holding  claim  of  infant 
to  funds  dissipated  by  insolvent  bank  on  same  basis  as  general  creditors;  Slater 
v.  Oriental  Mills,  18  R.  I.  356,  27  Atl.  443,  holding  right  to  follow  property  ap- 


1357  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  572 

preprinted  by  insolvent  company  lost  when  funds  dissipated;  State  v.  Bank  of 
Commerce,  54  Neb.  729,  75  X.  W.  28,  holding  beneficiary  of  titist  funds  dissipated 
by  bank  not  preferred  to  others;  Drovers'  &  M.  Nat.  Bank  v.  Roller,  85  Md.  500, 
36  L.  R.  A.  769,  60  Am.  St.  Rep.  344,  37  Atl.  30,  holding  assets  not  chargeable 
with  lien  in  favor  of  one  for  whom  bankrupt  sold  sheep,  where  proceeds  have  been 
dissipated;  Morrison  v.  Lincoln  Sav.  Bank  &  S.  D.  Co.  57  Neb.  228,  77  N.  W.  655, 
and  Bank  of  Florence  v.  United  States  Sav.  &  Loan  Co.  104  Ala.  301,  16  So.  110, 
holding  cestui  que  trust  shares  with  general  creditors  when  trust  fund  misap- 
plied; Paul  v.  Draper,  158  Mo.  201,  81  Am.  St.  Rep.  296,  59  S.  W.  77,  holding 
deposit  of  infant's  money  in  insolvent  bank  creates  relation  of  debtor  and  cred- 
itor, not  trustee  and  cestui  que  trust ;  Bank  Coinrs.  v.  Security  Trust  Co.  70  X.  II. 
548,  49  Atl.  113,  holding  beneficial  owner  of  trust  funds  not  entitled  to  prefer- 
ence over  general  creditors  of  insolvent  trustee  when  moneys  dissipated;  Re 
Mulligan,  116  Fed.  718,  holding  mere  misapplication  of  proceeds  of  sales  give* 
defrauded  consignors  no  lien  superior  to  general  creditors;  Hill  v.  Miles,  83  Ark. 
489,  104  S.  W.  198,  holding  claim  by  owner  of  trust  funds  dissipated  by  insolv- 
ent bank  is  on  same  basis  as  general  creditors. 
—  Collections  made  •>>  insolvent  bank. 

Cited  in  Xonotuck  Silk  Co.  v.  Flanders,  87  Wis.  242,  58  N.  W.  383;  Hallam  v. 
Tillinghast,  19  Wash.  27,  52  Pae.  329;  Thuemmler  v.  Barth,  89  Wis.  389,  62 
X.  W.  94,  —  holding  one  for  whom  bank  collected  draft  before  assignment  can 
only  share  with  general  creditors;  Ober  &  Sons  Co.  v.  Cochran,  318  Ga.  405,  98 
Am.  St.  Rep.  118,  45  S.  E.  382,  holding  the  mere  fact  that  a  bank  to  which  a  note 
was  sent  for  collection  with  instructions  to  immediately  remit  the  proceeds  of  the 
collection  to  the  owner,  c'ollected  the  money  due  on  the  note,  and  instead  of 
obeying  instructions  used  the  same  in  its  own  business,  is  not  sufficient,  upon  its 
insolvency,  to  impress  a  trust  on  a  fund  realized  by  its  receiver,  by  converting  its 
assets  into  cash. 
Power  of  equity  court  over  trust*. 

Cited  in  Hudson  v.  J.  B.  Parker  Mach.  Co.  173  Mass.  248,  53  N.  E.  867,  holding 
equity  court  has  power  over  trusts  and  will  determine  rights  of  persons  inter- 
ested therein. 

7  L.  R.  A.  572,  MURDOCK  v.  FRANKLIN  INS.  CO.  33  W.  Va.  407,  10  S.  E.  777. 
Limitation   clause   in   insnrniice   policy Fire   insurance. 

Cited  in  Steel  v.  Phenix  Ins.  Co.  2  C.  C.  A.  469,  7  U.  S.  App.  325,  51  Fed.  721, 
holding  limitation  of  time  to  sue  for  insurance  operates  from  expiration  of  60 
days  from  proofs  of  loss;  Sample  v.  London  &  L.  F.  Ins.  Co.  46  S.  C.  497,  47 
L.  R.  A.  707,  57  Am.  St.  Rep.  701,  24  S.  E.  334,  holding  stipulation  that  suit  can 
be  brought  on  policy  within  12  months  after  fire,  means  12  months  from  accrual 
of  right;  State  Ins.  Co.  v.  Meesman,  2  Wash.  468,  26  Am.  St.  Rep.  870,  27  Pac.  77 
(dissenting  opinion),  majority  holding  limitation  to  action  on  policy  begins  from 
date  of  fire,  notwithstanding  stipulation  in  proof  of  loss  clause;  Hogel  v.  Aachen 
Ins.  Co.  65  W.  Va.  438,  131  Am.  St.  Rep.  972,  64  S.  E.  441,  holding  though  a 
fire  insurance  policy  provide  that  suit  must  be  brought  on  it  within  12  months 
from  the  fire,  yet  it  also  provides  that  no  suit  shall  be  brought  before  60 
days  after  proof  of  loss  the  12  months  does  not  begin  until  the  end  of  the  60 
days. 

Cited  in  notes  (11  L.  R.  A.  599)  on  waiver  of  conditions  in  fire  policy  by 
refusal  to  pay  loss;  (8  L.  R.  A.  769;  47  L.  R.  A.  708)  on  limitation  of  actions 
for  fixed  period  on  marine  and  miscellaneous  policies:  (14  Eng.  Rul.  Cas.  21;. 
28  Am.  St.  Rep.  583)  on  limitation  of  actions  on  insurance  policies. 


7  L.R.A.  572]  L.  R.  A.  CASES  AS  AUTHORITIES.  1358 

Disapproved  in  Egan  v.  Oakland  Ins.  Co.  29  Or.  405,  54  Am.  St.  Rep.  798,  42 
Pac.  990,  holding  action  upon  policy  must  commence  within  6  months  after  fire, 
though  loss  not  payable  for  60  days  after  proofs  of  loss. 
Life    insurance. 

Disapproved  in  effect,  McFarland  v.  Railway  Officials  &  E.  Acci.  Asso.  5  YVyo. 
133,  27  L.  R,  A.  51,  63  Am.  St.  Rep.  29,  38  Pac.  347,  holding  provision  in  life 
insurance  policy  limiting  time  to  sue  begins  at  death. 
Insuruble    interest. 

Cited  in  Home  Ins.  Co.  v.  Mendenhall,  164  111.  465,  36  L.  R.  A.  377,  45  N.  E. 
1078,  holding  heir  expectant  in  possession  has  insurable  interest  in  property 
though  deed  undelivered  to  father. 

Cited  in  notes    (13  Eng.  Rul.  Gas.  277,  278)    on  insurable  interest  of  agent; 
(13  Eng.  Rul.  Cas.  214,  314)   on  insurable  interest  in  property. 
Effect  of  statute  on  rate  of  interest. 

Cited  in  Seton  v.  Hoyt,  34  Or.  281,  43  L.  R,  A.  638,  75  Am.  St.  Rep.  641,  55 
Pac.  967,  holding  unpaid  county  warrants,  bearing  interest,  contracts  upon  which 
rate  of  interest  not  reduceable  by  statute. 
Interest   on   judgments. 

Cited  in  Baer's  Sons  Grocer  Co.  v.  Cutting  Fruit-Packing  Co.  42  W.  Va.  365, 
26  S.  E.  191,  holding  judgments  on  contracts  bear  interest  from  date  of  verdict; 
Talbott  v.  West  Virginia  C.  &  P.  R.  Co.  42  W.  Va.  563,  26  S.  E.  311,  holding  in- 
terest computed  from  date  of  judgment  in  actions  in  tort. 
Retrospective  effect  of  statutes. 

Cited  in  Baldwin  v.  Aberdeen,  23  S.  D.  640,  26  L.R.A.  ( N.S. )  120,  123  N.  W. 
80,  holding  statute  requiring  notice  to  city  before  action  can  be  brought  for 
personal  injuries  did  not  apply  to  injuries  received  after  statute  was  approved, 
but  before  it  went  into  effect. 

Cited  in  note  (30  Am.  St.  Rep.  78)  on  retroactive  statutes. 

7  L.  R.  A.  576,  STARCR  v.  UNION  CENT.  L.  INS.  CO.  134  Pa.  45,  19  Am.  St. 
Rep.  674,  19  Atl.  703. 


Cited  in  Hall  v.  Mutual  Reserve  Fund  Life  Asso.  19  Pa.  Super.  Ct.  34,  holding 
death  by  suicide  avoids  policy,  regardless  of  motive  or  insanity;  Doll  v.  Pruden- 
tial Ins.  Co.  21  Pa.  Super.  Ct.  437,  holding  clause  as  to  incontestability  not  vio- 
lated by  correction  of  misstated  age  of  insured. 

Cited  in  notes  (42  L.R.A.  249,  261)  on  incontestability  of  life  insurance  policy; 
(84  Am.  St.  Rep.  552)  on  self-destruction  as  defense  to  life  insurance. 

7  L.  R.  A.  577,  WIESE  v.  SAN  FRANCISCO  MUSICAL  FUND  SOC.  82  Cal. 

645,  23  Pac.  212. 
Conclusiveness    of    judgments. 

Cited  in  Reed  v.  Cross,  116  Cal.  484,  48  Pac.  491.  holding  right  to  contribution 
established  in  one  action,  conclusive  upon  parties  in  later  action  based  on  same 
transaction;  Koehler  v.  Holt  Mfg.  Co.  146  Cal.  337,  80  Pac.  73,  holding  judg- 
ment that  an  order  of  third  person  directing  defendant  to  pay  out  moneys  to 
become  due  from  him  to  third  person  had  been  revoked  conclusive  in  an  action  on 
other  installments. 

Cited  in  footnotes  to  Wilkes  v.  Davies,  23  L.  R.  A.  103,  which  holds  conclusive 
refusal  of  injunction  against  consummating  sale  of  school  lands  till  improvements 
paid  for;  Reich  v.  Cochran,  37  L.  R.  A.  805,  which  holds  judgment  by  default  in 
summary  proceedings  by  landlord  not  bar  to  pending  action  to  have  lease 


3359  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  583 

adjudged  a  mortgage;  Ruckman  v.  Union  Railway,  69  L.R.A.  480.  which  holds 
judgment  for  defendant  in  action  to  compel  surrender  of  corporate  bonds  to  suc- 
cessor of  corporation  issuing  same  on  ground  of  wrongful  transfer  a  bar  to  a 
claim  of  payment  in  subsequent  suit  to  foreclose  mortgage  securing  same. 

Cited  in  notes  (8  L.  R.  A.  268;  11  L.  R,  A.  159,  311)  on  attacking  judgments 
collaterally. 

7  L.  R.  A.  583,  REESE  v.  WESTERN  U.  TELEG.  CO.  123  Ind.  294,  24  N.  E.  163. 
•Sufficiency  of  complaint  to  show  negligence. 

Cited  in  South  Florida  Teleg.  Co.  v.  Maloney,  34  Fla.  345,  16  So.  280,  holding 
complaint  in  action  for  negligence  in  transmitting  message  should  state  facts 
showing  liability;  Western  U.  Teleg.  Co.  v.  Klitzke,  45  Ind  App.  552,  89  N.  E. 
405,  holding  that  under  statute  requiring  that  telegraph  companies  must,  under 
penalty  deliver  messages,  if  addressee  lives  within  certain  distance  from  station, 
complaint  to  recover  such  penalty  must  allege  that  addressee  lives  within  such 
limits. 
Strict  construction  of  penal  statutes. 

Cited  in  Southern  Indiana  Loan  &  Sav.  Inst.  v.  Doyle,  26  Ind.  App.  105,  59 
N.  E.  179,  holding  penal  statutes  governing  actions  to  recover  penalty  for  refusal 
to  satisfy  mortgage  strictly  construed:  Osborn  v.  Hocker,  160  Ind.  3,  66  X.  E. 
42,  holding  penalty  for  refusal  to  discharge  mortgage  not  recoverable  without 
payment  of  full  amount  of  debt. 
Remedy  for  violation  of  duty. 

Cited  in  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Russ,  6  C.  C.  A.  600,  18  U.  S.  App. 
279,  57  Fed.  825,  holding  passenger  wrongfully  ejected  from  train  may  sue  com- 
pany in  tort  or  for  breach  of  contract. 
.Mental    suffering1    as    element    of    damage. 

Cited  in  Young  v.  Western  U.  Teleg.  Co.  107  N.  C.  376,  9  L.  R,  A.  671,  footnote, 
p.  669,  22  Am.  St.  Rep.  883,  11  S.  E.  1044,  holding  neglect  for  8  days  to  deliver 
message  "come  in  haste,  wife  near  death"  renders  company  liable  for  mental 
anguish;  Western  U.  Teleg.  Co.  v.  Cain,  14  Ind.  App.  117,  42  X.  E.  655,  authoriz- 
ing recovery  for  mental  anguish  from  delay  in  announcing  brother's  illness  pre- 
venting attendance  at  funeral;  Cashion  v.  Western  U.  Teleg.  Co.  123  X.  C.  272, 
31  S.  E.  493,  holding  failure  to  deliver  message  makes  company  liable  for  mental 
anguish  not  as  breach  of  contract,  but  of  public  duty;  Cashion  v.  Western  U. 
Teleg.  Co.  124  X.  C.  466,  45  L.  R.  A.  162,  32  S.  E.  746.  holding  damages  for  mental 
pain  caused  by  failure  to  deliver  message  recoverable,  though  relationship  of 
parties  not  disclosed;  Mentzer  v.  Western  U.  Teleg.  Co.  93  Iowa,  756,  28  L.  R.  A. 
73,  57  Am.  St.  Rep.  294,  62  N.  W.  1,  and  Western  U.  Teleg.  Co.  v.  Cline,  8  Ind. 
App.  365,  35  N.  E.  564,  holding  right  to  damages  for  mental  suffering  for  nonde- 
livery of  message  announcing  death,  though  no  pecuniary  loss  result;  Western 
U.  Teleg.  Co.  v.  Xewhouse,  G  Ind.  App.  434,  33  X.  E.  800;  Western  U.  Teleg.  Co.  v. 
Bryant,  17  Ind.  App.  74,  40  X.  E.  358;  Western  U.  Telcg.  Co.  v.  Strateineier,  6 
Ind.  App.  132,  32  X.  E.  871;  Cowan  v.  Western  U.  Teleg.  Co.  122  Iowa,  381,  64 
L.  R.  A.  548,  98  X.  W.  281, —  authorizing  recovery  for  mental  anguish  from 
delay  in  delivery  of  telegram:  Renihan  v.  Wright,  125  Ind.  545,  9  L.  R.  A.  517, 
21  Am.  St.  Rep.  249,  23  X.  E.  822.  holding  in  assessment  of  damages  for  under- 
taker's breach  of  contract  to  retain  corpse,  mental  pain  should  be  considered; 
Western  U.  Teleg.  Co.  v.  Caldwell,  126  Ky.  48.  12  L.R.A.  (X.S.)  752.  102  S.  W. 
840,  holding  failure  of  telegraph  company  to  deliver  message  to  plaintiff  inform- 
ing her  of  her  brother's  death  entitle  her  to  recover  damages  for  mental  anguish: 
Barnes  v.  Western  U.  Teleg.  Co.  27  Xev.  445,  65  L.R.A.  670,  103  Am.  St.  Rep. 


7  L.R.A.  583]  L.  R.  A.  CASES  AS  AUTHORITIES.  1360 

776,  76  Pac.  931,  1  Ann.  Gas.  346,  holding  mental  suffering  unaccompanied  by 
physical  suffering  can  be  estimated  and  allowed  for  in  damages  in  an  action 
against  telegraph  company  for  negligence  in  delivery  of  message. 

Cited  in  footnotes  to  Connell  v.  Western  U.  Teleg  Co.  20  L.  R.  A.  172,  which 
denies  recovery  for  mental  distress  for  failure  to  deliver  telegram;  International 
Ocean  Teleg.  Co.  v.  Saunders,  21  L.  R.  A.  810,  which  holds  mental  suffering  not 
element  of  damage  for  failure  to  promptly  deliver  telegram;  Western  U.  Teleg. 
Co.  v.  Wood,  21  L.  R.  A.  706,  which  denies  recovery  for  mental  anguish  from  de- 
lay in  delivering  telegram;  Chapman  v.  Western  U.  Teleg.  Co.  17  L.  R,  A.  430, 
which  denies  recovery  to  addressee  for  mental  suffering  from  failure  to  deliver 
telegram;  Getty  v.  Peters,  10  L.  R.  A.  464,  which  holds  damages  for  mental 
anguish  alone  from  delay  in  delivering  telegram  not  recoverable. 

Cited  in  notes  (13  L.R.A.  860)  on  opinions  favoring  damages  for  mental  suffer- 
ing alone;  (22  Am.  St.  Rep.  897)  on  liability  of  telegraph  company  for  mental 
anguish;  (68  Am.  St.  Rep.  826)  on  damages  for  mental  suffering;  (117  Am. 
St.  Rep.  307)  on  mental  suffering  as  element  of  damages  recoverable  for  failure 
to  transmit  and  deliver  telegrams;  (14  L.R.A. (N.S.)  501)  on  mental  anguish 
suffered  by  sender  deprived  of  advice  and  consolation  as  element  of  damages  for 
failure  to  deliver  telegram  announcing  sickness  or  death. 

Questioned  in  Western  U.  Teleg.  Co.  v.  Briscoe,  18  Ind.  App.  25.  47  X.  E.  473, 
stating  that  in  Indiana  recovery  is  allowed  for  mental  damages  without  pe- 
cuniary loss  from  delay  in  delivery  of  telegram  announcing  mother's  death. 

Criticized  in  Western  U.  Teleg.  Co.  v.  Ferguson,  26  Ind.  App.  220,  59  N.  E.  416, 
expressing  opinion  that  damages  for  distress  of  mind  without  bodily  injury  not 
recoverable  for  nondelivery  of  message  announcing  death. 

Disapproved  in  effect  in  Kester  v.  Western  U.  Teleg.  Co.  55  Fed.  604;  Western 
U.  Teleg.  Co.  v.  Wood,  21  L.  R.  A.  712,  6  C.  C.  A.  450,  13  U.  S.  App.  317,  57  Fed. 
477 ;  Newman  v.  Western  U.  Teleg.  Co.  54  Mo.  App.  440, —  holding  no  damages  re- 
coverable for  mental  anguish  for  nondelivery  of  telegram;  Curtin  v.  Western  U. 
Teleg.  Co.  13  App.  Div.  255,  42  N.  Y.  Supp.  1109,  and  Connelly  v.  Western  U. 
Teleg.  Co.  100  Va.  57,  56  L.  R.  A.  667,  93  Am.  St.  Rep.  919,  40  S.  E.  618,  holding 
damages  for  mental  suffering  for  negligent  transmission  of  message  not  recover- 
able at  common  law  or  under  statute;  Connell  v.  Western  U.  Teleg.  Co.  116  Mo. 
50.  20  L.  R.  A.  178,  38  Am.  St.  Rep.  575,  22  S.  W.  345,  holding  no  damages  re- 
coverable for  nondelivery  of  message,  although  company  knew  mental  pain  would 
result;  Western  U.  Teleg.  Co.  v.  Rogers,  68  Miss.  756,  13  L.  R.  A.  862.  24  Am. 
St.  Rep.  300,  9  So.  823;  Chapman  v.  Western  U.  Teleg.  Co.  88  Ga,  765,  17  L.  R. 
A.  431,  30  Am.  St.  Rep.  183,  15  S.  E.  901 ;  Peay  v.  Western  U.  Teleg.  Co.  64  Ark. 
543,  39  L.  R.  A.  463,  43  S.  W.  965 ;  Crawson  v.  Western  U.  Teleg.  Co.  47  Fed.  546, 
— holding  right  of  recovery  for  mental  pain  from  nondelivery  of  message  dependent 
upon  element  of  physical  suffering;  International  Ocean  Teleg.  Co.  v.  Saunders, 
32  Fla.  442,  21  L.  R.  A.  814,  14  So.  148,  holding  nominal  damages  only  recover- 
able for  delay  in  delivery  of  telegram,  mental  pain  alone  resulting;  Western 
Teleg.  Co.  v.  Burris,  102  C.  C.  A.  386,  179  Fed.  94,  holding  there  can  be  no  re- 
covery in  federal  court  for  damages  consisting  solely  in  mental  anguish  caused 
by  negligence  of  telegraph  company  in  delivery  of  a  message;  Western  U.  Teleg. 
Co.  v.  Chouteau,  28  Okla.  684,  — L.R.A.(N.S.)  — ,  115  Pac.  879,  holding  that  in 
absence  of  statute  damages  are  not  recoverable  for  mental  distress  alone,  caused 
by  negligent  delay  in  delivering  telegram. 

Overruled  in  Western  U.  Teleg.  Co.  v.  Ferguson,  157  Ind.  64,  54  L.  R.  A.  851, 
60  N.  E.  674,  holding  mental  pain  resulting  from  negligence  in  delivery  of  mes- 
snjre  not  actionable. 


1361  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  588 

Xotice  from  contents  of  telegram. 

Cited  in  Western  U.  Teleg.  Co.  v.  Griffin,  1  Ind.  App.  50,  27  N.  E.  113,  holding 
message  calling  doctor  for  child  shows  necessity  for  prompt  service;  Western 
U.  Teleg.  Co.  v.  Nations,  82  Tex.  541,  27  Am.  St.  Rep.  914,  18  S.  W.  709,  holding 
message  announcing  death  sufficient  to  inform  company  mental  pain  will  result 
from  nondelivery;  Western  U.  Teleg.  Co.  v.  Newhouse,  6  Ind.  App.  431,  33  N.  E. 
800,  and  Western  U.  Teleg.  Co.  v.  Eskridge,  7  Ind.  App.  213,  33  N.  E.  238,  hold- 
ing message  announcing  serious  illness  sufficient  notice  for  immediate  trans- 
mission and  delivery;  Western  U.  Teleg.  Co.  v.  Coffin,  88  Tex.  96,  30  S.  W.  800. 
holding  action  for  damages  not  supported  in  absence  of  notice  that  great  ment-iT 
pain  may  result  from  nondelivery;  Western  U.  Teleg.  Co.  v.  McClelland.  38  Ind. 
App.  585,  78  N.  E.  672,  holding  where  the  importance  of  a  telegraph  message  ap- 
pears on  its  face  the  company  will  be  held  to  have  notice  of  the  urgency  of  its  de- 
livery; Western  U.  Teleg.  Co.  v.  Potts,  120  Tenn.  44,  19  L.R.A.(N.S.)  481,  127 
Am.  St.  Rep.  991,  113  S.  W.  789,  holding  a  telegraph  company  may  learn  the 
grounds  on  which  it  may  base  an  estimate  of  or  anticipate  damages  resulting 
from  a  failure  to  promptly  deliver  the  message  either  from  facts  communicated 
to  its  agents  dehors  the  message  or  from  the  face  of  the  message  itself. 
Liability  for  negligence  in  delivery  of  telegram. 

Cited  in  Cogdcll  v.  Western  U.  Teleg.  Co.  135  N.  C.  435,  47  S.  E.  490.  holding 
that  telegraph  company  ownes  duty  to  public  promptly  to  deliver  telegram,, 
irrespective  of  contract;  Western  U.  Teleg.  Co.  v.  Moore,  12  Ind.  App.  140,  54 
Am.  St.  Rep.  515,  39  X.  E.  874,  holding  prepayment  for  delivery  beyond  free  de- 
livery limits  not  essential  to  recovery  of  damages  for  failure  to  diligently  deliver 
message;  Western  U.  Teleg.  Co.  v.  Sefrit,  38  Ind.  App.  508.  78  N.  E.  038:  Western 
U.  Teleg.  Co.  v.  Braxton,  165  Ind.  171,  74  X.  E.  985, — holding  statute  requiring 
prompt  "transmission"  of  messages  included  delivery;  Harrison  v.  Western  U.. 
Teleg.  Co.  143  X.  C.  152,  55  S.  E.  435,  10  A.  &  E.  Ann.  Gas.  476,  holding  failure 
of  telegraph  company  to  deliver  message  is  no  mere  breach  of  contract,  but  a 
failure  to  perform  a  public  duty. 

Cited  in  footnote  to  Western  U.  Teleg.  Co.  v.  Short,,  9  L.  R.  A.  744,  which  holds, 
company  prima  facie  liable  for  failure  to  deliver  telegram. 

Cited  in  note  (10  L.  R.  A.  516)  on  liability  for  failure  to  transmit  telegraphic 
message. 
Who  may  sue  for  delay  in  delivery  of  telegram. 

Cited  in  Whitehill  v.  Western  U.  Teleg.  Co.  136  Fed.  501,  holding  person  for 
whose  benefit  message  is  sent,  if  that  fact  is  apparent  from  the  telegram  itself, 
may  maintain  an  action  for  damages  by  reason  of  the  negligence  of  the  company. 

7  L.  R.  A.  588,  TERRE  HAUTE  &  I.  R.  CO.  v.  CLEM,  123  Ind.  15.  18  Am.  St. 

Rep.  303,  23  X.  E.  965. 
Duty  of  railroad  companies  to  maintain  safe  crossings. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  McTntosh,  140  Ind.  278.  38  N.  E.  476. 
holding  duty  of  railroad  company  to  maintain  crossing  in  good  condition  and 
safe;  Seybold  v.  Terre  Haute  &  I.  R.  Co.  18  Ind.  App.  379,  46  X.  E.  1054,  holding 
failure  of  railroad  company  to  observe  statutory  duty  of  mending  highway 
actionable  negligence:  Indiana  ex  rcl.  Muncie  v.  Lake  Erie  &  W.  R.  Co.  83  Fed. 
287,  holding  statutory  duty  devolves  upon  company  to  maintain  safe  crossing 
convenient  for  increased  use  by  public;  Ohio  &  M.  R.  Co.  v.  Trowbridge,  126  Ind. 
394,  26  X.  E.  64,  holding  railroad  liable  for  injury  resulting  from  horse  taking 
fright  at  car  left  at  crossing:  St.  Louis  &  S.  F.  R.  Co.  v.  Dyer.  87  Ark.  533, 
113  S.  W.  49,  holding  railway  company  need  not  provide  facilities  at  crossings 
for  vehicles  not  in  ordinary  u*e:  Graham  v.  Chicago,  I.  &  L.  R.  Co.  39  Ind.  App. 
L.R.A.  An.  Vol.  I.— 86. 


7  L.R.A.  588}  L.  R.  A.  CASES  AS  AUTHORITIES.  1362 

298,  77  N.  E.  57,  holding  obstruction  of  stream  or  watercourse,  road,  railroad, 
or  canal  by  construction  of  railroad  or  failure  to  keep  crossings  in  repair  is  in 
violation  of  statute  which  gives  right  of  action  to  one  injured  thereby.  Evans- 
ville  &  I.  R.  Co.  v.  Allen,  34  Ind.  App.  642,  73  X.  E.  630,  holding  guards  neces- 
sary part  of  crossing. 

Cited  in  footnote  to  Jeffrey  v.  Detroit,  L.  &  N.  R.  Co.  31  L.  R.  A.  170,  which 
holds  railroad  company  liable  for  defect  in  sidewalk  across  track. 
Probable   results   an   test    of   negligence. 

Cited  in  Louisville,  X.  A.  &  C.  R.  Co.  v.  Xitsche,  126  Ind.  233,  9  L.  R.  A.  752, 
22  Am.  St.  Rep.  582,  26  N.  E.  51,  holding  railroad  company  liable  for  setting  fires 
on  right  of  way  when  damage  by  spreading  probable;  Cleveland,  C.  C.  &  St.  L. 
R.  Co.  v.  Berry,  152  Ind.  618,  46  L.  R.  A.  56,  53  N.  E.  415,  holding  lack  of  care 
not  shown  by  placing  coupling  pin  on  tender  where  it  would  not  reasonably  be 
expected  to  fall;  Barman  v.  Spencer  (Ind.),  44  L.  R.  A.  817,  49  X.  E.  9,  holding 
persons  going  out  at  night  not  required  to  anticipate  dangers  they  are  ignorant 
of  to  exempt  from  negligence. 
Precautions  after  accident  as  proof  of  negligence. 

Cited  in  Wabash  County  v.  Pearson,  129  Ind.  457,  28  X.  E.  1120,  holding 
admission  of  evidence  of  repairs  after  injury  incompetent  to  show  negligence; 
Columbia  &  P.  S.  R.  Co.  v.  Hawthorne,  144  U.  S.  207,  36  L.  ed.  407,  12  Sup.  Ct. 
Rep.  591,  holding  evidence  incompetent  showing  change  in  hanging  pulley  after 
injury,  tending  to  create  prejudice  and  shift  real  issue:  Motey  v.  Pickle  Marble 
&  Granite  Co.  20  C.  C.  A.  371,  36  U.  S.  App.  682,  74  Fed.  157,  and  Muncie  Pulp. 
Co.  v.  Jones,  11  Ind.  App.  117,  38  X.  E.  547,  holding  improper  to  show  repairs 
of  hole  in  floor  after  accident;  Green  v.  Ashland  Water  Co.  101  Wis.  269,  43  L. 
R.  A.  121,  70  Am.  St.  Rep.  722,  77  X.  W.  722,  holding  in  action  for  damage  for 
death  by  failing  to  provide  pure  water,  recovery  dependent  on  condition  previous 
thereto.  Baran  v.  Reading  Iron  Co.  202  Pa.  286,  51  Atl.  979,  holding  evidence 
showing  change  in  support  and  operation  of  boilers  after  accident  incompetent  to 
prove  prior  negligence;  Anson  v.  Evans,  19  Colo.  279,  35  Pac.  47,  holding  error 
to  ^admit  evidence  in  negligence  action  that  new  ropes  replaced  old  ones  after 
accident;  Sievers  v.  Peters  Box  &  Lumber  Co.  151  Ind.  658,  50  X.  E.  877,  holding 
court  did  not  err  in  refusing  to  admit  evidence  that  elevator  gearing  fastened 
differently  after  accident;  Bell  v.  Washington  Cedar  Shingle  Co.  8  Wash.  29,  35 
Pac.  405,  holding  in  action  for  damages  for  injury  from  imperfect  machinery, 
evidence  of  change  thereafter  improper;  Shelby  County  v.  Blair,  8  Ind.  App.  589, 
36  X.  E.  216,  holding  improper  to  show  construction  of  new  bridge  after  injury, 
in  place  of  defective  one;  Standard  Oil  Co.  v.  Tierney,  92  Ky.  378,  14  L.  R.  A. 
683,  36  Am.  St.  Rep.  595,  17  S.  W.  1025,  holding  evidence  of  subsequent  change 
in  mode  of  branding  barrels  of  naphtha  inadmissible  in  action  for  negligence  in 
shipping  it  improperly  branded;  Shinners  v.  Locks  &  Canals,  154  Mass.  170.  12 
L.  R.  A.  558,  26  Am.  St.  Rep.  226,  28  X.  E.  10,  holding  evidence  improper 
showing  precautionary  acts  in  shoring  up  bank  subsequent  to  injury  by  falling 
of  earth;  Holt  v.  Spokane  &  P.  R.  Co.  3  Idaho,  716,  35  Pac.  39,  holding  evidence 
of  filling  up  of  well  in  which  child  was  drowned,  after  accident,  inadmissible; 
Plunkett  v.  Clearwater  Bleachery  &  Mfg.  Co.  80  S.  C.  318,  61  S.  E.  431,  holding 
such  precautions  not  generally  evidence. 

Cited  in  notes  (116  Am.  St.  Rep.  Ill;  11  Eng.  Rul.  Cas.  246)  on  admissibility 
of  subsequent  repairs  or  precautions. 
In  actions  against  railroads. 

Cited  in  Southern  P.  Co.  v.  Hall,  100  Fed.  768,  holding  repair  of  railroad 
water  box  after  injury  does  not  effect  question  of  previous  negligence;  Georgia 
Southern  &  F.  R.  Co.  v.  Cartledge,  116  Ga.  166,  59  L.  R.  A.  120,  footnote  p.  118, 


1303  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  591 

42  S.  E.  405,  holding  additional  precaution  taken  after  injury  caused  by  mail 
grab  striking  post  not  admission  of  negligence;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Parker,  5  C.  C.  A.  222,  12  U.  S.  App.  132,  55  Fed.  597,  holding  not  proper  to 
show  repairs  made  on  switch  engine  subsequent  to  accident;  Prescott  &  N.  R.  Co. 
v.  Smith,  70  Ark.  183,  67  S.  W.  865,  holding  change  of  method  in  making  up 
train  cannot  be  used  as  evidence  of  previous  wrong;  Aldrich  v.  Concord  &  M.  R. 
Co.  67  X.  H.  253,  29  Atl.  408,  holding  evidence  incompetent  that  switch  causing 
derailment  replaced  by  different  kind  after  accident;  Chicago  &  E.  R.  Co.  v.  Lee, 
17  Ind.  App.  223,  46  X.  E.  543,  holding  proof  improper  showing  signal  wires 
which  caused  injury  afterwards  covered;  Illinois  C.  R.  Co.  v.  Wyatt.  104  Tenn. 
434,  78  Am.  St.  Rep.  926,  58  S.  W.  308,  holding  evidence  of  repairs  to  platform 
after  injury  cannot  be  admitted  to  prove  antecedent  negligence;  Denver  &  R.  G. 
]R.  Co.  v.  Morton,  3  Colo.  App.  158,  32  Pac.  345,  holding  error  to  show  railroad 
employees  helped  extinguish  fire,  on  question  of  origin;  Pennsylvania  Co.  v. 
Witte,  15  Ind.  App.  593,  43  N.  E.  319,  Isaacs  v.  Southern  P.  Co.  49  Fed.  798; 
Kentucky  &  I.  Bridge  Co.  v.  McKinney,  9  Ind.  App.  220,  36  N.  E.  448,  —  holding 
^evidence  of  extension  of  platform  after  injury  of  one  falling  from  elevated  train 
not  admissible  to  prove  negligence;  Nashville,  C.  &  St.  L.  R.  Co.  v.  Ragan,  167 
Ala.  280,  52  So.  522,  holding  that  in  action  for  injuries  caused  by  defective 
railroad  crossing  evidence  that  repairs  were  made  several  days  after  accident 
was  inadmissible;  Pribbeno  v.  Chicago,  B.  &  Q.  R.  Co.  81  Neb.  659,  116  N.  W 
494;  Place  v.  Grand  Trunk  R.  Co.  82  Vt.  48,  71  Atl.  836, — holding  as  a  general 
rule  evidence  of  repairs  made  after  the  accident  is  incompetent  to  show  antece- 
.dent  negligence  on  part  of  railway  company. 

Distinguished  in  Skottowe  v.  Oregon  Short  Line  &  U.  N.  R.  Co.  22  Or.  439, 
16  L.  R.  A.  596,  30  Pac.  222,  holding  evidence  of  repairs  after  injury  competent 
-to  show  ownership,  but  not  negligence;  Chicago  &  E.  R.  Co.  v.  Barries.  10  Ind. 
App.  462,  38  N.  E.  428,  holding  evidence  of  repairs  on  bridge  after  injury  com- 
petent in  rebuttal,  not  to  show  negligence. 
Evidence  of  subsequent  condition. 

Cited  in  note  (32  L.R.A.  (N.S.)  1128,  1146)  on  admissibility  of  evidence  of  con- 
dition before  and  after  accident  of  property  whose  defects  alleged  to  have  caused 
injury. 

Distinguished   in   Creamery   Package  Mfg.   Co.   v.   Hotsenpiller,   159   Ind.    105, 
04  N.  E.  600,  holding  evidence  of  subsequent  condition  of  machine  causing  injury 
admissible,  where  same  as  at  time  of  accident. 
'Liability   of  railway  company   for  breach   of  statutory  duty. 

Cited  in  Kelsay  v.  Chicago,  C.  &  L.  R.  Co.  41  Ind.  App.  132,  81  N.  E.  522,  hold- 
ing under  statute  a  railway  company  which  destroyed  a  drain  constructed  under 
state  law  was  liable  to  owner  of  lands  rendered  untillable  by  such  act. 

7  L.  R.  A.  590,  DICK  v.  FLANAGAN.  122  Ind.  277,  23  N.  E.  765. 
Payment   of   pre-existing   debt   with    third    person's   note. 

Cited  in  Zimmerman  v.  Adee,  126  Ind.  18,  25  N.  E.  828,  holding  in  absence  of 
agreement  taking  note  of  third  person  for  pre-existing  debt  no  payment. 
Cited  in  note   (35  L.R.A.(N.S.)    16)   on  payment  by  commercial  paper. 

7  L.  R.  A.  591,  COPPAGE  v.  HUTTON,  124  Ind.  401,  24  N.  E.  112. 
Signing    and    acknowledging    articles    of    association. 

Cited  in  Greenbrier  Industrial  Exposition  v.  Rodes,  37  W.  Va.  741,  17  S.  E. 
305,  holding  each  subscriber  to  articles  of  association  must  acknowledge  signa- 
ture to  make  a  subscription  binding. 


7  L.R.A.  591]  L.  R.  A.  CASES  AS  AUTHORITIES.  1364 

Cited  in  note  (136  Am.  St.  Rep.  745)  on  nature  and  validity  of  subscription 
agreement  to  corporate  stock. 

Distinguished  in  Shick  v.  Citizens'  Enterprise  Co.  15  Ind.  App.  334,  57  Am. 
St.  Rep.  230,  44  X.  E.  48,  holding  subscriber  to  capital  stock  of  existing  corpo- 
ration need  not  sign  and  acknowledge  articles  of  association. 

7  L.  R.  A.  592,  DANAHER  v.  BROOKLYN,  119  N.  Y.  241,  23  N.  E.  745. 
City's   liability   for   injury. 

Cited  in  Lenzen  v.  Braunfels,  13  Tex.  Civ.  App.  358,  35  S.  W.  341,  holding  city 
liable  for  negligent  failure  to  supply  water  to  extinguish  fire;  Springfield  F. 

6  M.  Ins.  Co.  v.  Keeseville,  80  Hun,  169,  29  N.  Y.  Supp.  1130,  holding  city  liable 
for  damage  due  to  its  wilful  misconduct  or  culpable  neglect  to  maintain  water- 
works and  fire  appliances;  Spier  v.  Brooklyn,  45  N.  Y.  S.  R.  263,  18  N.  Y.  Supp. 
170,  holding  city  liable  for   injury  due  to  display  of  fireworks  licensed  by   it: 
McGarey  v.  New  York,  89  App.  Div.  501,  85  X.  Y.  Supp.  861,  holding  city  liable 
for    injury   to    pedestrian    by    falling    of    rotten    limb    of    tree    into    street;    De 
Agramonte  v.  Mt.  Vernon,  112  App.  Div.  295,  98  N.  Y.  Supp.  454,  holding  a  mu- 
nicipality  which   licenses   an   exhibition   of   fireworks   is  not  liable   for    injuries 
caused  by  negligence  of  licensee. 

Cited  in  footnotes  to  Green  v.  Ashland  Water  Co.  43  L.  R.  A.  117,  which  holds 
water  company  not  liable  for  injury  due  to  unwholesome  water  when  consumer 
knew  of  its  condition;  Hughes  v.  Auburn,  46  L.  R.  A.  636,  which  denies  city's 
liability  for  disease  due  to  neglect  of  proper  sanitary  precautions  as  to  sewer 
system;  Duncan  v.  Lynchburg,  48  L.  R.  A.  331,  which  denies  city's  liability  for 
nuisance  by  pollution  of  water  in  unauthorized  operation  of  rock  quarry  outside 
city  limits. 

Cited  in  notes  (61  L.R.A.  88)  on  establishment  and  regulation  of  municipal 
water  supply;  (30  Am.  St.  Rep.  401)  on  liability  of  cities  for  negligence  and' 
other  misconduct  of  officers  and  agents;  (108  Am.  St.  Rep.  170)  as  to  what 
municipal  corporations  are  answerable  for  injuries  due  to  defects  in  streets  and 
other  public  places. 

Distinguished  in  Springfield  F.  &  M.  Ins.  Co.  v.  Keeseville,  80  Hun,  169,  29 
N.  Y.  Supp.  1130,  holding  village  maintaining  by  taxation  system  of  waterworks 
liable  for  loss  by  fire  from  lack  of  water  due  to  employment  of  incompetent  men, 
and  letting  works  get  out  of  repair. 

Disapproved  in  Miller  v.  Detroit,  156  Mich.  639,  132  Am.  St.  Rep.  537,  121 
N.  W.  490,  16  A.  &  E.  Ann.  Cas.  832,  holding  private  damages  not  recoverable 
for  breach  of  duty  imposed  upon  municipality. 

7  L.  R.  A.  595,  GOSHEN  NAT.  BANK  v.  BINGHAM,  118  N.  Y.  349,  16  Am.  St. 

Rep.  765,  23  N.  E.  180. 
Lack   of   indorsement   as   subjecting;   instrument    to    defenses. 

Cited  in  Grabosski  v.  Gewerz,  44  N.  Y.  S.  R.  128,  17  N.  Y.  Supp.  528,  holding 
note  not  indorsed  by  payee  subject  in  hands  of  holders  to  all  defenses  which 
might  have  prevailed  between  original  parties;  Meade  v.  Sandidge,  9  Tex.  Civ. 
App.  365,  30  S.  W.  245,  holding  transferee  of  note  without  indorsement  occupies 
no  better  position  than  assignor;  Lebcher  v.  Lambert,  23  Utah,  11,  63  Pac.  628,. 
holding  holder  of  note  not  indorsed  by  payee  takes  subject  to  existing  equities; 
First  Nat.  Bank  v.  Henry,  156  Ind.  11,  58  N.  E.  1057,  holding  no  consideration 
good  defense  to  note  transferred  before  maturity  without  indorsement;  Pavey 
v.  Stauffer,  45  La.  Ann.  361,  19  L.  R.  A.  721,  12  So.  512,  holding  if  indorsement 
accidentally  omitted  subsequent  indorsement  relates  back  to  time  of  transfer 
and  shuts  off  equities;  Meridian  Nat.  Bank  v.  First  Nat.  Bank,  7  Ind.  App.  337,. 


1365  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  599 

52  Am.  St.  Rep.  450,  34  X.  E.  608,  holding  indorsement  with  fictitious  name,  of 
check  payable  to  person  under  such  assumed  name,  valid,  making  indorsee  holder 
for  value;  Pitkin  v.  Clayton,  41  App.  Div.  305,  58  X.  Y.  Supp.  483,  holding  trans- 
feree of  note  by  assignment  instead  of  indorsement  takes  subject  to  all  equities 
that  might  be  urged  against  assignor;  Wangner  v.  Grimm,  169  N.  Y.  428,  62 
X.  E.  509,  holding  assigned  note  subject  to  defense  of  payment  to  payee  without 
notice  of  assignment;  Gray  Tie  &  Lumber  Co.  v.  Farmers'  Bank,  109  Ky.  699,  60 
S.  W.  537,  holding  transferee  of  draft  without  indorsement  takes  it  subject  to 
defenses. 

Cited  in  footnote  to  Mayer  v.  Heidelbach,  9  L.  R.  A.  850,  which  holds  one 
taking  check  in  absolute  payment  of  debt  a  bona  fide  purchaser. 

Cited  in  notes  (26  L.R.A.  570)  on  indorsement  as  affecting  negotiability  of 
•check;  (17  L.R.A. (N.S.)  1110)  on  transferee,  without  indorsement,  of  bill  or 
note  payable  or  indorsed  "to  order"  as  bona  fide  purchaser;  (4  Eng.  Rul.  Cas. 
337;  14  Eng.  Rul.  Cas.  750)  on  title  of  one  taking  bill  or  note  without  indorse- 
ment. 
Necessity  or  effect  of  indorsement. 

Cited  in  Eichner  v.  Bowery  Sav.  Bank,  78  N.  Y.  S.  R.  333,  44  N.  Y.  Supp.  332, 
holding  bank  not  liable  for  refusal  to  pay  check  until  it  is  indorsed  by  payees; 
McCarville  v.  Lynch,  14  Misc.  176,  35  N.  Y.  Supp.  383,  holding  possession  of 
unindorsed  certificate  of  deposit  does  not  show  ownership  or  power  of  disposition: 
Brown  v.  Janes,  71  Misc.  319,  130  X.  Y.  Supp.  333,  to  the  point  that  note  may 
be  transferred  by  delivery  only  without  indorsement. 

Cited  in  note   (12  L.  R.  A.  493)   check  must  be  indorsed  by  payee. 
Heplevin  as  remedy. 

Cited  in  Haas  v.  Altieri,  2  Misc.  253,  21  N.  Y.  Supp.  950,  to  point  replevin 
lies  for  possession  of  check;  Hower  v.  Weiss  Malting  &  Elevator  Co.  5  C.  C.  A. 
133,  14  U.  S.  App.  210,  55  Fed.  359  (dissenting  opinion),  majority  holding 
injunction  to  restrain  sale  of  stock  representing  controlling  interest  in  corpora- 
tion will  be  granted,  and  that  remedy  at  law  by  replevin  is  inadequate. 
Certification  of  check. 

Cited  in  People  v.  Saint  Xicholas  Bank,  77  Hun,  169,  28  N.  Y.  Supp.  407, 
holding  bank  by  certification  of  check  becomes  debtor  to  holder,  and  not  obliged 
to  set  apart  particular  fund  for  payment;  Meuer  v.  Phenix  Nat.  Bank,  94  App. 
Div.  338,  88  N.  Y.  Supp.  83,  Affirming  42  Misc.  345,  86  X.  Y.  Supp.  701,  holding 
bank  certifying  check  upon  request  of  holder  liable  thereon. 

Cited  in  note  (128  Am.  St.  Rep.  700,  702)  on  certified  checks. 
Deposit     slips. 

Cited  in  note    (17  L.  R.  A.  580)   on  deposit  slips  given  by  banks. 
Payment    of    forged    paper. 

Cited  in  note  (7  L.  R.  A.  849)  on  payment  by  bank  of  forged  paper. 
Effect  of  acquisition  of  l«-u:i  1    title  by  equitable  owner. 

Cited  in  Wenz  v.  Pastene,  209  Mass.  363,  —  L.R.A.(X.S.)  — ,  95  N.  E.  793, 
holding  that  one  acquiring  equitable  interest  in  property  by  payment  of  part 
of  consideration,  cannot  after  notice  destroy  another  person's  prior  right  by 
procuring  legal  title. 

7  L.  R.  A.  599,  YELLOWSTONE  KIT  v.  STATE,  88  Ala.  196,  16  Am.  St.  Rep. 

38,  7  So.  338. 
Lottery,    -what    constitutes. 

Cited  in  Reeves  v.  State.  105  Ala.  123,  17  So.  104.  holding  device  consisting 
of  board  and  arrow  indicating  prizes,  for  privilege  of  spinning  which  charge  is 


7  L.R.A.  599]  L.  R.  A.  CASES  AS  AUTHORITIES. 

made,  lottery;  Loiseau  v.  State,  114  Ala.  38,  62  Am.  St.  Rep.  84,  22  So.  138, 
holding  slot  machine  operated  under  agreement  that  person  making  highest 
score  have  cigars  to  value  of  money  put  in,  lottery;  Paulk  v.  Jasper  Land  Co. 
116  Ala.  183,  22  So.  495,  holding  apportionment  of  building  lots  of  different 
values  by  drawing  numbers,  lottery;  Chancy  Park  Land  Co.  v.  Hart,  104  Iowar 
595,  73  N.  W.  1053,  holding  apportionment  of  building  lots  of  equal  value  among 
subscribers  by  drawing  numbers,  not  lottery;  State  v.  Shugart,  138  Ala.  91,  35 
So.  28,  holding  issuance  of  trading  stamps  not  a  lottery  or  gift  enterprise;  State 
v.  Hawkins,  95  Md.  146,  93  Am.  St.  Rep.  328,  51  Atl.  850,  upholding  statute 
prohibiting  trading  stamps,  so  far  as  involving  element  of  chance;  State  v. 
Shugart,  138  Ala.  91,  100  Am.  St.  Rep.  17,  35  So.  28,  holding  issuance  of  trading 
stamps  not  a  lottery;  State  v.  Perry,  154  N.  C.  619,  70  S.  E.  387,  holding  that 
lottery  in  gaming  contract  by  which  for  consideration  one  may  by  favor  of  lot 
obtain  something  in  return  of  value  superior  to  amount  or  value  of  that  which  he 
risks. 

Cited  in  footnotes  to  Equitable  Loan  &  Security  Co.  v.  Waring,  62  L.  R.  A.  93, 
which  holds  determination  by  chance  of  time  of  payment  of  fixed  amount  due 
certificate  holder  in  investment  association,  not  illegal:  Lynch  v.  Rosenthal,  31 
L.  R.  A.  835,  which  holds  sale  of  lots  to  be  drawn  by  lot.  with  one  prize  lot  to  be 
given  to  one  of  purchasers  as  result  of  chance,  void;  State  ex  rel.  Prout  v. 
Nebraska,  Home  Co.  60  L.  R.  A.  448,  which  holds  scheme  by  which  common  fund 
is  to  be  distributed  among  contributors,  a  valuable  preference  in  distribution 
of  wrhich  depends  on  chance,  a  lottery;  State  ex  rel.  Sheets  v.  Interstate  Sav.. 
Invest.  Co.  52  L.  R.  A.  531,  which  holds  investment  securities,  etc.,  which  by 
certain  device  may  be  redeemed  before  maturity,  and  otherwise  give  unequal 
advantages  to  certificate  holders,  a  lottery;  Meyer  v.  State,  51  L.  R.  A.  496, 
which  holds  giving  customers  chance  to  operate  slot  machine  and  secure,  in 
addition  to  purchase,  article  whose  value  determined  by  place  where  revolving, 
wheel  stops,  a  lottery;  State  ex  rel.  Kellogg  v.  Kansas  Mercantile  Asso.  11 
L.  R.  A.  430,  wrhich  holds  scheme  for  distribution  of  prizes  by  chance,  a  lottery; 
Thornhill  v.  O'Rear,  31  L.  R.  A.  792,  which  holds  agreement  by  one  person  to 
take  all  chances  of  raffle,  not  unlawful:  People  ex  rel.  Ellison  v.  Lavin,  66  L.R.A.. 
601,  which  holds  distribution  of  prizes  to  those  who  shall  make'  closest  estimate 
of  number  of  cigars  on  which  tax  is  paid  during  specified  month,  a  lottery: 
People  v.  McPhee,  69  L.R.A.  505,  which  holds  a  scheme  by  which  a  certain 
number  of  persons  pay  a  small  sum  weekly  and  choose  by  lot  each  week  one  of 
the  number  to  receive  a  suit  of  clothes  worth  much  more  than  the  weekly 
payment  after  which  he  ceases  to  be  a  member,  a  lottery,  although  each  member 
is  entitled  to  trade  out  the  amount  paid  in  whenever  he  chooses  to  withdraw. 

Cited  in  notes  (8  L.  R.  A.  671)  on  what  constitutes  lottery  schemes;  (10 
L.  R.  A.  60)  on  lotteries  and  lottery  tickets. 

Distinguished  in  State  v.  Hawkins,  95  Md.  146,  93  Am.  St.  Rep.  328,  51  Atl. 
850,  holding  under  statute  issuance  of  trading  stamps  lottery. 
Gift    enterprises. 

Cited  in  Cross  v.  People,  18  Colo.  324,  36  Am.  St.  Rep.  292,  32  Pac.  821,  hold- 
ing gratuitous  distribution  of  property  by  chance  for  which  no  consideration  is 
received,  directly  or  indirectly,  no  lottery;  Long  v.  State,  74  Md.  570.  12  L.  R.  A. 
427,  28  Am.  St.  Rep.  268,  22  Atl.  4,  holding  gift  enterprise  not  involving  chance,, 
not  prohibitable  by  legislature. 

Cited  in  note    (12  L.  R.  A.  89)    on  gift  enterprise  as  lottery. 

Distinguished  in  Lansburgh  v.  District  of  Columbia,  11  App.  D.  C.  529,  holding-; 
trading  stamps  given  to  purchasers  of  goods,  entitling  holders  to  premiums^ 
within  act  prohibiting  gift  enterprises. 


1367  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  605- 


arising:    out    of    illegal    transaction. 

1  in  footnote  to  Martin  v.  Richardson,  19  L.  R.  A.  692,  which  holds  unlaw- 
ful purchaser  of  lottery  ticket  entitled  to  proceeds  from  one  fraudulently  obtain- 
ing after  prize  drawn. 

Cited  in  note   (7  L.  R.  A.  705)   on  when  promissory  note  invalid. 

7  L.  R.  A.  605,  MEMPHIS  &  C.  R.  CO.  v.  WOODS,  88  Ala.  630,  16  Am.  St.  Rep, 

81,  7   So.   108. 
Povrer   of   corporation    to    own    another's    stock. 

Cited  in  Hamilton  v.  Savannah,  F.  &  W.  R.  Co.  49  Fed.  424,  holding  in  absence 
of  statutory  authority  corporation  cannot  acquire  another's  stock;  Tompkins^ 
v.  Compton,  93  Ga.  523,  21  S.  E.  79,  holding  attempted  sale  of  majority  stock  to 
effect  consolidation  against  objection  of  minority  stockholders,  illegal;  Dunbar  v. 
American  Teleph.  &  Teleg.  Co.  224  111.  30,  115  Am.  St.  Rep.  132,  79  N.  E.  423r 

8  A.  &  E.  Ann.  Cas.  57,  holding  a  corporation  cannot  purchase  a  majority  of  the 
capital  stock  of  another  corporation  in  its  own  name  or  in  the  name  of  others 
as  agents  or  trustees  for  the  purpose  of  controlling  the  latter,  and  thereby  pre- 
venting competition  between  it  and  such  other  corporation. 

Cited    in    notes    (8    L.R.A.    498)    on    corporate    franchises   as    public   grants; 
(30  Am.  St.  Rep.  137,  138,  140)    on  right  to  acquire  stock  in  another  corpora- 
tion;   (S9  Am.  St.  Rep.  611)  on  distinction  between  consolidation  of  corporations 
or  purchase. 
Povrer   of   corporation    to   vote   stock. 

Cited  in  George  v.  Central  R.  &  Bkg.  Co.  101  Ala.  621,  14  So.  752,  holding 
voting  of  majority  stock  by  rival  railroad  may  be  enjoined;  State  ex  rel.  Jack- 
son v.  Xewman,  51  La.  Ann.  839,  72  Am.  St.  Rep.  476,  25  So.  408,  holding  that 
corporation  cannot,  in  absence  of  statutory  authority,  vote  stock  of  another; 
Wheeler  v.  Abilene  Xat.  Bank  Bldg.  Co.  16  L.R.A.  (N.S.)  897,  89  C.  C.  A.  477, 
159  Fed.  394,  14  A.  &  E.  Ann.  Cas.  917,  holding  any  sale  of  the  corporate  property 
by  a  single  holder  of  the  majority  of  the  stock  by  use  of  the  meetings  of  the  board 
of  directors,  and  the  meetings  of  the  stockholders  in  legal  form  for  its  fair 
value,  but  for  a  smaller  amount  than  could  be  obtained  for  it  from  another,  is 
voidable  at  the  election  of  the  minority  stockholders. 

Cited  in  note  (29  L.  R.  A.  849)  on  right  to  vote  by  proxy  in  private  corpora- 
tions. 

Distinguished  in  American  Refrigerating  &  Constr.  Co.  v.  Linn,  93  Ala.  612, 
7  So.  191,  holding  voting  of  majority  stock  of  domestic  by  foreign  corporation 
may  not  be  enjoined  unless  interest  clearly  shown  antagonistic;  South  &  X.  A. 
R.  Co.  v.  Gray,  160  Ala.  514,  49  So.  347,  holding  the  majority  stockholders 
would  not  be  eTijoined  from  voting  the  sale  of  the  corporation  at  the  suit  of  a 
small  minority  complaining  thereof,  the  latter  having  the  right  to  set  sale  aside 
or  injoin  its  consummation  if  it  proved  fraudulent  or  oppressive. 
Transactions  betvreen  corporations  under  same  control. 

Cited  in  O'Conner  Min.  &  Mfg.  Co.  v.  Coosa  Furnace  Co.  95  Ala.  617,  36  Am. 
St.  Rep.  251,  10  So.  290,  holding  transactions  between  corporations  having  same 
directors  voidable  by  either  corporation,  or  its  stockholders;  Montgomery  Traction 
Co.  v.  Harmon,  140  Ala.  520,  37  So.  371,  holding  contracts  between  corporations 
having  same  officers  and  directors  will  be  set  aside  unless  reasonable. 

Cited  in  note  (33  L.  R.  A.  793)  on  contracts  between  corporations  having  com- 
mon directors  or  officers. 
"When  stockholder  may  maintain  action   to  protect  corporate  rights. 

Cited   in   Steiner   v.   Parsons,    103   Ala.   221,   13   So.   771,   holding   stockholder 


7  L.E.A.  605]  L.  R.  A.  CASES  AS  AUTHORITIES.  1368 

filing  bill  to  compel  president  to  account  for  corporate  funds  must  show  redress 
not  obtainable  through  corporation;  Mack  v.  De  Bardeleben  Coal  &  I.  Co.  90 
Ala.  400,  9  L.  R.  A.  654,  8  So.  150,  holding  voting  majority  stock  by  rival  cor- 
poration may  not  be  enjoined  by  stockholder  without  previous  request  to  direct- 
ors, or  showing  request  useless;  George  v.  Central  R.  &  Bkg.  Co.  101  Ala.  624, 
14  So.  752,  holding  stockholders  showing  that  demand  upon  officers  to  prevent  il- 
legal voting  of  stock  would  be  fruitless,  entitled  to  maintain  action. 

Cited  in  notes   (9  L.R.A.  655)   on  neglect  or  refusal  to  comply  with  request  of 
corporation   to   sue;     (24   Am.   St.   Rep.    644)    on   suit   by   stockholders   against 
directors  for  mismanagement;    (97  Am.  St.  Rep.  34)  on  action  by  stockholders  in 
behalf  of  corporations. 
Pleading "What    averment    sufficient. 

Cited  in  Christian  v.  American  Freehold  Land  Mortg.  Co.  92  Ala.  131,  9  So. 
219,  holding  averment  of  fact  not  impaired  by  needless  recital  of  complainant's 
grounds  of  belief;  Smith  v.  Rogers  County,  26  Okla.  822,  110  Pac.  669,  holding 
that  pleading  should  contain  positive  statement  of  essential  facts. 
Contracts  between  stockholders  or  directors  in  control  and   corporation. 

Cited  in  Mobile  Land  Improv.  Co.  v.  Gass,  142  Ala.  528,  39  So.  229,  holding 
void,  deed  by  corporation  to  secretary,  made  pursuant  to  resolution  at  meeting  in 
which  secretary's  participation  was  necessary  to  constitute  quorum;  Mulverhill 
v.  Vicksburg  R.  Power  &  Mfg.  Co.  88  Miss.  712,  40  So.  647,  holding  they  should 
be  closely  scrutinized. 

Cited  in  notes    (17  Am.   St.  Rep.  298,  306;   139  Am.  St.  Rep.  607,  614,  621) 
on  validity  of  contracts  between  director  and  corporation. 
Purchase  by  corporation  of  Its  own  stock. 

Cited  in  Dacovich  v.  Canizas,  152  Ala,  294,  44  So.  473,  holding  stock  purchased 
by  directors  of  corporation  with  corporate  funds  for  benefit  of  corporation  become 
property  of  corporation,  unless  corporation  repudiated  transaction. 
Presumption  that   stockholders  acted  in  own  interest. 

Cited  in  Mannington  v.  Hocking  Valley  R.  Co.  183  Fed.  147,  holding  that 
presumption  is  that  board  of  directors  were  elected  by  all  stockholders  and  that 
stockholders  acted  in  their  own  interest. 

7  L.  R.  A.  613,  WHITNEY  v.  WHEELER  COTTON  MILLS,  151  Mass.  396,  24 

N.   E.    774. 
•Grants   of   water   rights  constrned. 

Cited  in  Gray  v.  Saco  Water  Power  Co.  85  Me.  531,  27  Atl.  455,  holding  grant 
of  water  passing  through  certain  aperture  in  dam  does  not  include  right  to  have 
usual  head  maintained. 

Distinguished  in  Whittenton  Mfg.  Co.  v.  Staples,  164  Mass.  326,  29  L.  R.  A. 
503,  41  N.  E.  441,  holding  right  to  use  of  reservoir  included  in  grant  of  "all 
streams,  dam,  water  power,  and  privileges,  head  and  fall  of  water     .     .     .     with 
rights     .     .     .     thereto   belonging." 
"Where    appurtenant    to    grant    of    land. 

Cited  in  Showhegan  Water  Power  Co.  v.  Weston,  94  Me.  293,  47  Atl.  515, 
holding  grantee  of  land  on  both  sides  of  channel  acquires  ordinary  riparian 
rights. 

Cited  in  note  (58  L.  R.  A.  488)  on  how  far  grant  of  mill  includes  water  rights. 
Right  to  store  or  dam  water. 

Cited  in  Wamesit  Power  Co.  v.  Sterling  Mills,  158  Mass.  448,  33  N.  E.  503, 
holding  accumulation  of  water  in  mill  ponds  outside  of  working  hours,  legal; 
Corse  v.  Dexter,  202  Mass.  33,  88  N.  E.  332,  holding  construction  of  a  mill  dam 


1369  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  618 

across  stream  by  abutting  owner  creates  no  easement  to  flood  land  abutting  on 
stream  below  dam;  Allen  v.  Thomapple  Electric  Co.  144  Mich.  374,  115  Am.  St. 
Rep.  453,  108  X.  W.  79,  holding  one  has  no  right  to  raise  water  of  stream 
by  dam  thus  flooding  the  lands  above  it;  Mason  v.  Whitney,  193  Mass.  157,  7 
7. .1;. A.  (X.S.)  289,  118  Am.  St.  Rep.  448,  78  N.  E.  881,  holding  in  absence  of  right 
by  prescription  the  lower  proprietor  can  acquire  no  rights  by  usage  to  enjoy  the 
benefit  of  upper  proprietors  dam  and  reservoir  for  storage  of  water. 

Cited  in  notes  (12  L.  R.  A.  639)  on  riparian  rights;  (9  L.  R.  A.  812)  on  ri- 
parian right  to  use  waters  of  stream;  (8  L.  R.  A.  277)  on  prescriptive  right  to 
flow  of  water;  (8  L.  R.  A.  202)  on  right  of  lower  owner  to  flow  of  water;  (41 
L.  R.  A.  749)  on  correlative  rights  of  upper  and  lower  proprietors  as  to  use 
and  flow  of  water  in  stream. 
Rig-lit  to  divert  \vater. 

Cited  in  footnote  to  Gould  v.  Eaton,  38  L.  R.  A.  181,  which  denies  riparian 
owner's  power  to  transfer  right  to  divert  water  from  stream  to  use  on  nonripa- 
rian   land. 
Prescriptive    right    to    use   of   reservoir. 

Cited  in  Home  v.  Hutchins,  71  N.  H.  123,  51  Atl.  651,  holding  clear  evidence 
required  to  establish  prescriptive  right  to  use  of  reservoir. 

7  L.  R.  A.  618,  HILL  v.  KIMBELL,  76  Tex.  210,  13  S.  W.  59. 
Recovery   for   damages   caused   by   fright. 

Cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v.  Hayter,  93  Tex.  241,  47  L.  R.  A.  326,  77  Am. 
St.  Rep.  856,  54  S.  W.  944,  holding  damages  recoverable  by  passenger  on  wrecked 
train  for  physical  injuries  proximately  resulting  from  fright;  Watson  v.  Dilts, 
116  Iowa,  252,  57  L.  R.  A.  561,  93  Am.  St.  Rep.  239,  89  N.  W.  1068,  holding 
damages  recoverable  for  nervous  prostration  proximately  resulting  from  fright 
occasioned  by  nocturnal  trespasser:  Engle  v.  Simmons,  148  Ala.  95.  7  L.R.A. 
i  X.S.)  97,  121  Am.  St.  Rep.  59,  41  So.  1023,  12  A.  &  E.  Ann.  Gas.  740;  Stewart 
v.  Arkansas  Southern  R.  Co.  112  La.  768,  36  So.  676;  El  Paso  Electric  R.  Co.  v. 
Furber,  45  Tex.  Civ.  App.  350,  10  S.  W.  1041, — holding  where  fright  is  caused  by 
the  wrongful  act  or  omission  of  another,  and  physical  injury  results  therefrom, 
and  such  act  or  omission  is  the  proximate  cause  of  the  injury,  damages  may  be 
recovered  therefor;  Alexander  v.  St.  Louis  Southwestern  R.  Co.  57  Tex.  Civ. 
App.  411,  122  S.  W.  572.  to  the  point  that  action  lies  for  bodily  injury  resulting 
from  fright  caused  by  wrongful  act  of  another. 

Cited  in  notes  (14  L.  R.  A.  6G6)  on  fright  as  basis  for  cause  of  action;  (32 
L.  R.  A.  142)  on  recovery  of  damages  for  miscarriage;  (16  L.  R.  A.  2(58)  on  ef- 
fect of  previous  disease  on  person  injured,  on  liability  for  causing  injuries;  (53 
L.  R.  A.  633)  on  extent  of  trespasser's  liability  for  consequential  injuries  re- 
sulting from  trespass;  (69  L.R.A.  519)  on  care  due  to  sick,  infirm,  or  helpless 
persons  with  whom  no  contract  relation  is  sustained;  (77  Am.  St.  Rep.  870)  on 
fright  as  element  of  recoverable  damages;  (3  L.R.A. (X.S.)  61,  66)  on  right  to. 
recover  for  physical  injury  resulting  from  fright  caused  by  wrongful  act. 

Di>tinfruished  in  Xelson  v.  Crawford,  122  Mich.  470,  80  Am.  St.  Rep.  577,  81 
X.  W.  335,  holding  one  frightening  woman  without  malicious  intent  not  liable 
for  miscarriage  six  weeks  later:  Denison,  13.  &  X.  O.  R.  Co.  v.  Barry,  98  Tex. 
251,  83  S.  W.  5.  holding  railroad  company  not  liable  for  fright  caused  to  persons 
living  in  the  vicinity  by  reason  of  flooding  of  lands  caused  by  failure  to  supply 
sufficient  sluices  in  a  dump  company  was  constructing,  as  such  injury  was  not 
one  to  be  reasonably  anticipated. 


7  L.R.A.  618]  L.  R.  A.  CASES  AS  AUTHORITIES.  1370 

Damages    for    mental    suffering. 

Cited  in  Cowan  v.  Western  U.  Teleg.  Co.  122  Iowa,  382,  64  L.  R.  A.  549,  98 
N.  W.  281,  holding  recoverable,  damages  for  mental  anguish  resulting  from  neg- 
ligence in  transmission  of  telegram;  Bacon  v.  Pullman  Co.  16  L.R.A.  (X.S.)  582, 
89  C.  C.  A.  1,  159  Fed.  7,  14  A.  &  E.  Ann.  Cas.  516,  holding  where  plaintiff  was 
very  ill  under  charge  of  physician  in  sleeping  car,  and  her  bag  containing  her 
medicines  and  stimulants  were  stolen,  she  could  recover  for  mental  anguish 
•occasioned  by  being  deprived  of  them. 

Cited  in  note   (8  Eng.  Rul.  Cas.  418)   on  damages  for  mental  suffering. 

Distinguished  in  Shellabarger  v.  Morris,   115  Mo.  App.  571,  91   S.  W.   1005, 
holding  damages  not  recoverable  for  mental  anguish  in  absence  of  physical  in- 
jury. 
What   are  actions   for   trespass. 

Cited  in  Ft.  Worth  &  D.  C.  R.  Co.  v.  McAnulty,  7  Tex.  Civ.  App.  327,  26  S.  W. 
414,  holding  negligence  in  transportation  of  cattle  by  railroad,  trespass;  Cox  v. 
Strickland,  120  Ga.  107,  47  S.  E.  912,  1  A.  &  E.  Ann.  Cas.  870,  holding  trespass  in 
its  broadest  sense  comprehends  any  misfeasance,  transgression  or  offense  which 
.damages  another's  person,  health,  reputation,  or  property;  Bouillon  v.  Laclede 
Gaslight  Co.  148  Mo.  App.  470,  129  S.  W.  401,  holding  that  trespasser  is  liable 
for  injury  to  person  although  he  had  no  intent  to  do  injury  where  trespass  is 
wilful  or  malicious. 
Within,  statute  regulating:  venue. 

Cited  in  Connor  v.  Saunders,  9  Tex.  Civ.  App.  63,  29  S.  W.  1140,  holding  inju- 
Ties  to  employee  from  negligence  of  employer's  superintendent,  trespass;  Rotan 
v.  Maedgen,  24  Tex.  Civ.  App.  559,  59  S.  W.  585,  holding  conversion  of  note 
by  conspiracy,  trespass;  Wettermark  v.  Campbell,  93  Tex.  523,  56  S.  W.  331, 
holding  wrongful  levy  of  execution,  trespass:  Baldwin  v.  Richardson,  39  Tex. 
Civ.  App.  349,  87  S.  W.  353,  holding  where  defendant,  under  an  agreement  with 
plaintiff,  pastured  plaintiff's  cattle  on  his  land  and  pastured  diseased  cattle  of  his 
-own  without  those  of  plaintiff,  it  constituted  a  trespass. 

Limited  in  Connor  v.  Saunders,  81  Tex.  637,  17  S.  W.  236;  Austin  v.  Cameron, 
83  Tex.  353,  18  S.  W.  437;  Ricker  v.  Shoemaker,  81  Tex.  25,  16  S.  W.  645,  — hold- 
ing negligence  in  failure  to  act  not  trespass  within  meaning  of  statute. 

7  L.  R.  A.  620,.  PEREZ  v.  RAYBAUD,  76  Tex.  191,  13  S.  W.  177. 
Landlord's  liability   for   injuries   due   to   defective   premises. 

Cited  in  Oriental  Investment  Co.  v.  Sline,  17  Tex.  Civ.  App.  695,  41  S.  W.  130, 
holding  landlord  not  liable  for  dangerous  condition  at  time  of  lease,  in  ab- 
sence of  fraud,  deceit,  or  covenant;  Thompson  v.  Clemens,  96  Md.  206,  60  L.  R. 
A.  583,  53  Atl.  919,  holding  landlord  not  liable  for  injury  to  one  falling  through 
floor  of  porch,  because  of  breach  of  agreement  to  repair:  Bailey  v.  Kelly,  86  Kan. 
919,  39  L.R.A. (N.S.)  382,  122  Pac.  1027,  to  the  point  that  as  between  landlord 
and  servants  or  licensees  of  tenant  landlord's  duty  as  to  safety  of  premises  is  the 
same  as  toward  the  tenant;  Miles  v.  Janvrin,  196  Mass.  438,  13  L.R.A. (X.S.) 
381,  124  Am.  St.  Rep.  575,  82  N.  E.  708,  holding  to  charge  a  landlord  in  tort 
for  injury  to  tenant  through  breach  of  contract  to  repair,  he  must  be  shown  to 
have  undertaken  to  maintain  the  premises  in  a  safe  condition  for  tenants  use; 
Davis  v.  Smith,  26  R.  I.  132,  66  L.R.A.  481,  106  Am.  St.  Rep.  691,  58  Atl.  630,  3 
A.  &  E.  Ann.  Cas.  832 ;  American  Exch.  Nat.  Bank  v.  Swope,  46  Tex.  Civ.  App.  66, 
101  S.  W.  872, — holding  as  between  landlord  and  tenant  there  is  no  implied  war- 
ranty on  the  part  of  the  landlord  that  the  premises  are  in  a  tenantable  condition. 

Cited  in  notes   (34  L.  R.  A.  611)   on  liability  of  landlord  for  injuries  to  ten- 


J371  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  623 

ant's  guests  and  servants  from  defects  in  premises;  (46  L.  R.  A.  84,  86,  87)  on 
liability  of  owner  of  premises  not  in  possession;  (33  L.  R.  A.  451)  on  implied 
covenant  in  lease  as  to  fitness  of  property  for  purpose  intended;  (9  L.  R.  A.  641) 
on  basis  of  liability  for  negligence;  (66  Am.  St.  Rep.  785)  on  liability  of  landlord 
letting  premises  in  defective  condition;  (92  Am.  St.  Rep.  505,  509,  511,  527)  on 
liability  to  third  persons  of  lessors  of  real  or  personal  property. 

7  L.  R.  A.  622,  RILEY  v.  SIMPSON,  83  Cal.  217,  23  Pac.  293. 
Liability    for    maintaining'  dangrerona    structure. 

Cited  in  Willcox  v.  Hines,  100  Tenn.  553,  41  L.  R.  A.  281,  66  Am.  St.  Rep. 
770,  46  S.  W.  297,  holding  landlord  liable  to  tenant  for  defective  porch  of  which 
he  knows  at  time  of  lease;  Lewy  Art  Co.  v.  Agricola,  169  Ala.  68,  53  So.  145, 
holding  that  tenant  who  is  aware  of  dangerous  condition  of  awning  is  liable  to 
pedestrian  injured  by  its  fall;  Blickley  v.  Luce,  148  Mich.  240,  111  N.  W.  752, 
holding  where  a  landlord  directs  one  tenant  to  make  repairs  at  the  landlord's 
•expense,  those  who  do  the  work  represent  the  landlord  whether  independent  con- 
tractors or  not;  the  duty  to  reconstruct  the  building  so  as  not  to  injure  another 
tenant's  property  being  an  absolute  duty  resting  on  landlord,  which  he  cannot 
delegate  to  another  and  thereby  escape  liability;  Hudson  County  v.  Woodcliff 
Land  Improv.  Co.  74  N.  J.  L.  361,  65  Atl.  844,  holding  a  landowner  who  permits 
another  to  create  a  nuisance  upon  his  land  is  liable  to  one  injured  thereby. 

Cited  in  footnote  to  Cork  v.  Blossom,  26  L.  R.  A.  256,  which  holds  one  main- 
taining high  chimney  liable  for  fall  on  adjoining  building. 

Cited  in  notes  (26  L.  R.  A.  200)  on  liability  of  landlord  to  third  persons  for 
condition  of  premises  in  tenant's  possession;  (34  L.  R.  A.  558)  on  individual 
liability  for  falling  walls  or  buildings;  (26  L.  R.  A.  340)  on  right  to  maintain 
awnings  in  street;  (22  Am.  St.  Rep.  853)  on  liability  of  landlord  for  nuisance; 
(66  Am.  St.  Rep.  787;  15  Eng.  Rul.  Cas.  343)  on  liability  of  landlord  letting 
premises  in  defective  condition:  (92  Am.  St.  Rep.  536)  on  liability  of  lessor  for 
injury  to  third  person  from  defective  awning. 
Liability  of  lessor  for  lessee's  acts. 

Cited  in  Campbell  v.  Louisville  Coal  Min.  Co.  39  Colo.  382,  10  L.R.A.(N.S.)  822, 
89  Pac.  767,  holding  lessor  of  coal  vein,  all  the  coal  in  which  having  been  removed 
by  lessee  with  his  knowledge,  and  no  supports  provided,  liable  to  owner  of 
surface  soil  to  damages  caused  by  soil  sinking. 

Cited  in  notes  (86  Am.  St.  Rep.  516,  518)  on  liability  of  lessor  for  nuisance 
treated  by  tenant;  (92  Am.  St.  Rep.  529)  on  liability  to  third  person  of  lessor 
assenting  to  licensing  act  causing  injury. 

7  L.  R.  A.  623,  HARRISON  v.  DETROIT,  L.  &  N.  R.  CO.  79  Mich.  409,  19  Am. 

St.  Rep.  180,  44  N.  W.   1034. 
Fellow     servants. 

Cited  in  Jackson  v.  Norfolk  &  W.  R.  Co.  43  W.  Va.  395,  46  L.  R.  A.  350,  27 
S.  E.  278,  and  Norfolk  &  W.  R.  Co.  v.  Houchins,  95  Va.  411,  46  L.  R.  A.  367, 
64  Am.  St.  Rep.  802,  28  S.  E.  578,  both  holding  conductor  fellow  servant  with 
brakeman;  Lyttle  v.  Chicago  &  W.  M.  R.  Co.  84  Mich.  295,  47  N.  W.  571,  hold- 
ing yard  master  and  switchman  fellow  servants;  Erickson  v.  Milwaukee,  L.  S. 
.&  W.  R.  Co.  93  Mich.  417,  53  N.  W.  393,  holding  foreman  on  gravel  train  and 
shoveler  fellow  servants;  Gann  v.  Nashville,  C.  &  St.  L.  R.  Co.  101  Tcnn.  384,  70 
Am.  St.  Rep.  690,  47  S.  W.  493,  holding  section  boss  and  section  hand  fellow 
servants  in  operation  of  hand  car:  McLaine  v.  Head  &  D.  Co.  71  N.  H.  307,  58 
L.  R.  A.  469,  93  Am.  St.  Rep.  522,  52  Atl.  545  (dissenting  opinion),  majority 
.holding  foreman  fellow  servant  of  laborer  in  trench,  as  to  foreman's  promise  to 


7  L.R.A.  623]  L.  R.  A.  CASES  AS  AUTHORITIES.  1372" 

warn  latter  when  dirt  is  to  be  dumped;  Anderson  v.  Michigan  C.  R.  Co.  107  Mich. 
612,  65  N.  W.  585  (dissenting  opinion),  majority  holding  brakeman  not  fellow 
servant  with  section  men;  Bloyd  v.  St.  Louis  &  S.  F.  R.  Co.  58  Ark.  78,  41  Am. 
St.  Rep.  93,  22  S.  W.  1089,  holding  bridge  foreman  not  fellow  servant  with  pile 
driver;  Palmer  v.  Michigan  C.  R.  Co.  93  Mich.  367,  17  L.  R.  A.  639,  32  Am. 
St.  Rep.  507,  53  N.  W.  397,  holding  assistant  road  master  not  fellow  servant  of 
laborer  loading  rails;  Shumway  v.  Walworth  &  N.  Mfg.  Co.  98  Mich.  414,  57 
N.  W.  251,  holding  superintendent  of  planing  mill  not  fellow  servant  of  em- 
ployee by  his  act  of  starting  planer;  Saner  v.  Lake  Shore  &  M.  S.  R.  Co.  108; 
Mich.  33,  65  N.  W.  624  (dissenting  opinion),  majority  holding  conductor  of  con- 
struction train  not  fellow  servant  of  extra  section  gang  thereon;  Mikolojczak  v. 
North  American  Chemical  Co.  129  Mich.  86,  88  N.  W.  75,  holding  department 
foreman  and  servant  working  under  him  breaking  down  salt,  fellow  servants; 
McLaine  v.  Head  &  D.  Co.  71  N.  H.  307,  52  Atl.  545  (dissenting  opinion),  ma- 
jority holding  master  not  liable  for  injury  of  servant  in  trench  through  negli- 
gence of  foreman:  Milbourne  v.  Arnold  Electric  Power  Station  Co.  140  Mich.  319,. 
70  L.R.A.  600,  103  N.  W.  821,  holding  electric  railway  liable  to  employee  engaged 
in  construction  for  injuries  caused  by  reason  of  negligence  of  general  superin- 
tendent and  manager;  Milbourne  v.  Arnold  Electric  Power  Station  Co.  140  Mich. 
319,  70  L.R.A.  603,  103  N.  W.  821,  holding  general  superintendent  and  manager 
of  an  electric  railway  vice  principal  and  not  fellow  servant  of  an  employe  engaged 
in  the  work  of  construction;  La  Barre  v.  Grand  Trunk  W.  R.  Co.  133  Mich.  197, 
198,  94  N.  W.  735,  holding  section  hand  assisting  in  loading  rails  on  removing 
cars  temporarily  in  charge  of  assistant  roadmaster  not  fellow  servant  of  road- 
master;  Carr  v.  General  Fire  Extinguisher  Co.  10  Del.  Co.  Rep.  498,  holding  that 
employe  invested  with  master's  duty  of  providing  safe  ladders  is  vice-principal. 

Cited  in  notes  (18  L.  R.  A.  796)  as  to  fellow  servants;  (18  L.  R.  A.  824)  as 
to  negligent  superiors;  (50  L.  R.  A.  433)  as  to  what  servants  are  deemed  to  be 
in  the  same  common  employment,  apart  from  statutes,  where  no  questions  ss 
to  vice  principalship  arise;  (51  L.  R.  A.  521,  550,  576,  580,  612,  613)  as  to  vice 
principalship  considered  with  reference  to  the  superior  rank  of  a  negligent 
servant;  (54  L.  R.  A.  39,  42,  43,  72)  on  vice  principalship  as  determined  with 
reference  to  the  character  of  the  act  which  caused  the  injury;  (20  Am.  St.  Rep. 
368)  on  who  are  fellow-servants;  (27  Am.  St.  Rep.  901)  on  distinction,  between 
fellow  servants  and  vice  principals;  (75  Am.  St.  Rep.  585,  587,  588,  589,  592.  593, 
594,  596,  598,  599,  600,  601,  602,  603,  624,  631)  on  who  is  a  vice  principal. 

Distinguished  in  Balhoff  v.  Michigan  C.  R.  Co.  106  Mich.  614,  65  N.  W.  592, 
holding  section  men  not  fellow  servants  of  brakemen  with  respect  to  duty  to  re- 
move ice  from  track;  Schroeder  v.  Flint  &  P.  M.  R.  Co.  103  Mich.  216,  29  L.  R. 
A.  323,  50  Am.  St.  Rep.  354,  61  N.  W.  663,  holding  foreman  of  gang  unloading 
and  leveling  dirt  on  a  railroad  is  a  fellow  servant  of  member  of  gang;  Bees- 
ley  v.  F.  W.  Wheeler  &  Co.  103  Mich.  210,  27  L.  R.  A.  270,  61  N.  W.  G58,  holding 
riveter  and  carpenters  under  same  superintendent  engaged  in  ship  building  are 
fellow  servants;  Morch  v.  Toledo,  S.  &  M.  R.  Co.  113  Mich.  157,  71  X.  \V.  464, 
holding  section  foreman  temporarily  in  charge  of  work  train  in  place  of  road 
master,  fellow  servant  of  workman  thereon. 
Master's  liability  to  injured  servant. 

Cited  in  Doyle  v.  Toledo,  S.  &  N.  R.  Co.  127  Mich.  98,  54  L.  R.  A.  463,  89  Am. 
St.  Rep.  456,  86  N.  W.  524,  holding  railroad  company  running  spur  track  under 
another's  shed  liable  for  injury  to  brakeman  by  roof  falling  when  required  to  go 
there  for  cars;  Brown  v.  Ann  Arbor  R.  Co.  118  Mich.  208,  76  N.  W.  407,  and 
Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Banning,  131  Ind.  534,  31  Am.  St.  Rep. 
447,  31  N.  E.  187,  both  holding  servant  taken  from  regular  employment  for 


1373  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  629 

work  of  another  kind  in  strange  place,  may  assume  same  not  dangerous;  Nor- 
folk Beet-Sugar  Co.  v.  High!,  56  Neb.  168,  76  N.  VV.  566,  holding  master  liable 
for  injury  to  servant  ordered  to  perform  work  not  known  by  servant  to  be  dan- 
gerous; Ashman  v.  Flint  &  P.  M.  R.  Co.  90  Mich.  571,  51  N.  W.  045,  holding  it 
to  be  master's  duty  to  keep  track  frogs  properly  blocked;  Hayes  v.  Frederick 
Stearns  &  Co.  130  Mich.  292,  89  N.  W.  947,  holding  master  liable  for  injury 
to  unwarned  servant  caused  by  falling  through  open  trap  in  floor. 

Cited  in  footnote  to  Missouri  P.  R.  Co.  v.  Columbia,  59  L.  R.  A.  399,  which 
holds  placing  on  platform  heavy  doors  blown  on  track  by  severe  gale  not  proxi- 
mate cause  of  derailment  of  engine. 

Cited  in  notes  (48  L.  R.  A.  798)  as  to  liability  for  injuries  received  by  servant 
in  performance  of  duties  outside  the  scope  of  his  original  contract;  (51  L.  R. 
A.  559,  563,  577,  592)  as  to  vice  principalship  considered  with  reference  to  the 
superior  rank  of  a  negligent  servant;  (54  L.  R.  A.  39,  42,  43,  72)  on  vice  prin- 
cipalship as  determined  with  reference  to  the  character  of  the  act  which  caused 
the  injury. 
Duties  of  section  men. 

Cited  in  Roepcke  v.  Michigan  C.  R.  Co.  100  Mich.  546,  59  N.  W.  243,  holding 
that  arranging  of  logs  being  unloaded  from  car  regular  duty  of  section  men. 
Duty  of  court  as  to  special  questions  for  jury. 

Cited  in  Sherwood  v.  Chicago  &  W.  M.  R.  Co.  82  Mich.  379,  46  N.  W.  773,  hold- 
ing that  court  cannot  refuse  to  submit  special  questions  presented  in  unam- 
biguous form  and  relating  to  questions  of  fact  at  issue;  Hemenway  v.  Burnham, 
90  Mich.  230,  51  X.  W.  276,  holding  court  must  submit  special  questions,  an- 
swers to  which  would  have  been  inconsistent  with  general  verdict  for  plaintiff, 
if  in  harmony  with  defendant's  evidence ;  Beaudin  v.  Bay  City,  136  Mich.  340, 
99  N.  W.  285,  4  A.  &  E.  Ann.  Gas.  248,  holding  statute  authorizes  either  party 
to  demand  submission  of  pertinent  and  controlling  questions  to  jury. 
Assumption  of  risk. 

Cited  in  Cristanelli  v.  Saginaw  Min.  Co.  154  Mich.  430,  117  N.  W.  910,  holding 
servant  does  not  assume  the  extra  hazards  which  spring  from  failure  of  master 
to  exercise  reasonable  case  in  providing  rule  for  conduct  of  his  business  as  to 
afford  his  servants  reasonable  means  of  protection;  Cristanelli  v.  Saginaw  Min. 
Co.  154  Mich.  430,  117  X.  W.  910,  holding  engineer  of  a  hoist,  in  so  far  as  the 
performance  of  his  duty  to  keep  the  place  safe  was  concerned,  was  not  a  fellow 
servant  of  an  employe  engaged  in  loading  machinery  into  hoist. 

Cited  in  notes  (24  Am.  St.  Rep.  323)  on  servant's  right  to  rely  on  master's 
superior  knowledge  of  risk;  (97  Am.  St.  Rep.  896)  on  right  of  recovery  by  em- 
ployee accepting  extra  hazardous  duties. 

7  L.  R.  A.  629,  FISHER  v.  XORTHRUP,  79  Mich.  287,  44  N.  W.  610. 
Suit  not  maintainable  by  initial  of  plaintiff's  first   name. 

Cited  in  Stever  v.  Brown,  119  Mich.  199,  77  N.  W.  705,  holding  Chritian  name 
of  plaintiff  must  be  given. 

Cited  in  note  (14  L.  R.  A.  693)  on  acquisition  and  use  by  individual  of  a  name. 
Question  of  misnomer,  how  raised  in  justice's  court. 

Cited  in   Stever  v.   Brown.   Ill)   Mich.   200.  77   X.  W.   706,  holding  motion  in 
justice's  court  to  dismiss  for  misnomer  of  plaintiff  suing  under  initial,  equivalent 
to  plea  in  abatement. 
Plea  in  abatement. 

Cited  in  Hirsh  v.  Fisher,  138  Mich.  99,  101  N.  W.  48,  as  to  motion  to  dismiss 
being  equivalent  in  justice  court  to  such  plea. 


7  L.R.A.  630]  L.  R.  A.  CASES  AS  AUTHORITIES,  1374 

7  L.  R.  A.  630,  BETZ  v.  VERNER,  46  N.  J.  Eq.  256,  19  Am.  St.  Rep.  387,  19 

Atl.  206. 
Rights    of   mortgagor    or   mortgagee. 

Cited  in  Mellick  v.  Mellick,  47  X.  J.  Eq.  94,  19  Atl.  870,  holding  mortgagor 
before  forfeiture  has  "interest,"  within  statute  of  frauds,  in  mortgaged  prem- 
ises; Waterman  v.  Mackenzie,  138  U.  S.  259,  34  L.  ed.  927,  11  Sup.  Ct.  Rep.  334r 
holding  mortgagee  of  patent  may  maintain  suit  against  infringement;  McCaleb  v.. 
Goodwin,  114  Ala.  623,  21  So.  967,  holding  bondholder  may  enjoin  impairment 
of  security. 

Cited  in  notes  (7  L.R.A.  279)  on  removal  of  fixtures  takes  them  out  of  lien 
of  mortgage;  (43  Am.  St.  Rep.  432)  on  mortgagee's  rights  and  remedies  against 
impairment  of  security;  (109  Am.  St.  Rep.  437)  on  mortgagees'  right  of  action 
against  third  persons  for  invasion  of  their  rights;  (9  Eng.  Rul.  Gas.  511)  on 
right  to  enjoin  mortgagor  in  possession  from  committing  waste;  (18  Eng.  Rul... 
Cas.  103)  on  restriction  in  equity  of  mortgagor's  rights  of  ownership. 

Distinguished  in  Sanford  v.  Kunkel,  30  Utah,  386,  85  Pac.  363,  holding  the  re- 
moval of  a  building  by  third  persons  to  land  other  than  that  on  which  it  was 
originally  erected  without  the  consent  or  knowledge  of  owner  thereof  or  me- 
chanic's lienholders,  did  not  relieve  the  building  in  its  new  location  from  the 
liens. 

7  L.  R.  A.  634,  COM.  ex  rel.  ATTY.  GEN.  v.  NEW  YORK,  L.  E.  &  W.  R.  CO. 
132  Pa.  591,  19  Atl.  291. 

Reaffirmed  on  reargument  in  Com.  v.  New  York,  L.  E.  &  W.  R.  Co.  139  Pa.  459,  . 
21  Atl.  528,  without  special  discussion. 

Effect  of  violating:  constitutional  provision  against  corporate  ownership 
Of   real   estate. 

Cited  in  People  ex  rel.  Atty.  Gen.  v.  Stockton  Sav.  v.  Loan  Soc.  133  Cal.  612, 
85  Am.  St.  Rep.  225.  65  Pac.  1078,  holding  constitutional  restriction  of  owner- 
ship of  real  estate  by  corporations  prescribing  no  penalty,  does  not  work  escheat; 
United  States  v.  Delaware  &  H.  Co.  164  Fed.  253  (dissenting  opinion),  as  to 
effect  of  such  violation. 

Cited  in  notes   (12  L.  R.  A.  531)  on  lands  held  by  foreign  corporations  subject 
to  escheat;    (24  L.  R.  A.  326,  330)   on  right  of  foreign  corporations  to  own  real 
estate;    (9  L.  R.  A.  35)    on  forfeiture  of  corporate  franchise. 
Effect  of  ownership  of  stock  in  domestic  by  foreign  corporation. 

Cited  in  White  v.  Ryan,  15  Pa.  Co.  Ct.  176,  holding  act  forbidding  foreign 
corporations  to  own  real  estate  does  not  prohibit  holding  stock  of  domestic  cor- 
porations owning  real  estate;  Postal  Teleg.  Cable  Co.  v.  Oregon  Short  Line  R.  Co. 
23  Utah,  482,  90  Am.  St.  Rep.  705,  65  Pac.  735,  holding  ownership  of  stock  of 
domestic  by  foreign  corporation  does  not  affect  former's  rights  to  maintain  con- 
demnation proceedings. 

Constitutional    provision    against    common    carrier's    engaging    in    other 
business. 

Cited  in  Hartwell  v.  Buffalo,  R.  &  P.  R.  Co.  19  Pa.  Co.  Ct.  236,  6  Pa.  Dist.  215, 
holding   railroad's   ownership   of  mining  stock   does   not  constitute  engaging  in 
mining. 
Power  of  corporation  to  hold  stock  in  another. 

Cited  in  Edmunds  v.  Illinois  C.  R.  Co.  2  111.  C.  C.  481,  holding  a  railroad 
corporation  can  lawfully  hold  stock  in  two  roads  which  are  competitors  of  each . 
other. 


1375  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  646 

Escheat   of  property   to   state. 

Cited  in  note   (40  L.  ed.  U.  S.  693)   on  escheat  of  property  to  the  state. 

7  L.  R.  A.  638,  KILLINGSWORTH  v.  PORTLAND  TRUST  CO.  18  Or.  351,  17 

Am.  St.  Rep.  737,  23  Pac.  66. 
Power  of  corporation  to  act  as  :iu<-ni. 

Cited  in  note  (33  Am.  St.  Rep.  248)   on  powers  of  corporation. 

Distinguished  in  Continental  Trust  Co.  v.  Peterson,  76  Neb.  415,  107  N.  W. 
786,  holding  under  statute  corporation  cannot  act  as  administrator. 

7  L.  R.  A.  640,  PRENTISS  v.  PAISLEY,  25  Fla.  927,  7  So.  56. 
Marriage    relation    as   affecting?   liability   of   parties. 

Cited  in  Trapnell  v.  Conklyn,  37  W.  Va.  252,  38  Am.  St.  Rep.  30,  16  S.  E, 
570,  holding  husband  may  act  as  agent  for  wife;  Graham  v.  Tucker,  56  Fla.  310, 
19  L.R.A.  (N.S.)  533,  131  Am.  St.  Rep.  124,  47  So.  563,  holding  under  constitution 
and  laws  of  Florida  a  married  woman  is  not  liable  in  an  action  of  tort. 

Cited  in  footnotes  to  Henley  v.  Wilson,  58  L.  R.  A.  941,  which  sustains  hus- 
band's common-law  liability  for  wife's  torts;  Harrisburg  Nat.  Bank  v.  Bradshaw, 
34  L.  R.  A.  597,  which  sustains  renewal  by  married  woman  of  accommodation 
indorsement  made  before  marriage. 

Cited  in  notes  (30  L.R.A.  521)  on  liability  of  husband  and  wife  for  wife's  libel 
and  slander;  (131  Am.  St.  Rep.  138)  on  liability  of  married  women  for  torts; 
(134  Am.  St.  Rep.  931,  935)  on  validity  of  judgments  against  married  women. 

Distinguished  in  Fritz  v.  Fernandez,  45  Fla.  332,  34  So.  315,  holding  in  equity 
wife  may  become  creditor  of  husband,  or  of  firm  of  which  he  is  a  member  and 
equity  will  enforce  her  rights  growing  out  of  such  relation. 
Vacation  of  decree  pro  confesso. 

Cited  in  Hancock  v.  Hancock,  55  Fla.  686,  15  L.R.A. (N.S.)  672,  45  So.  1020* 
holding  divorce  rendered  upon  decree  pro  confesso  may  be  set  aside  where  the 
bill  states  no  ground  for  relief. 

7  L.  R.  A.  646,  TERRITORY  v.  EVANS,  2  Idaho,  651,  23  Pac.  232. 
I  siisii    testimony  on   second   trial. 

Cited  in  Putnal  v.  State,  56  Fla.  94,  47  So.  864,  holding  that  in  order  that 
former  testimony  may  be  provable,  it  must  have  been  taken  in  course  of  judi- 
cial proceeding  in  competent  tribunal ;  State  v.  Nelson,  68  Kan.  572,  75  Pac. 
505,  1  A.  &  E.  Ann.  Gas.  468,  holding  the  fact  that  a  witness  against  defendant 
in  a  criminal  case  is  outside  of  the  state  at  the  time  of  the  trial  and  beyond  the 
reach  ot  process,  authorizing  the  introduction  in  evidence  of  testimony  given  at 
former  trial  notwithstanding  an  opportunity  to  subpoena  the  witness  may  have 
been  neglected  by  prosecution;  State  v.  Nicholas,  149  Mo.  App.  126,  130  S.  W, 
96,  holding  that  evidence  taken  at  former  trial  of  criminal  action  cannot  be  in- 
troduced by  state,  without  showing  that  witness  is  dead;  Warren  v.  State,  6; 
Okla.  Crim.  Rep.  10,  34  L.R.A. (N.S.)  1126,  115  Pac.  812,  holding  that  testimony 
of  witness  on  former  criminal  trial  may  be  given  where  witness  is  dead,  insane 
or  absent  from  state  if  right  of  cross-examination  was  afforded  at  former  trial : 
State  v.  Walton,  53  Or.  563,  99  Pac.  431,  holding  testimony  of  witness  given  at 
former  trial  may  be  introduced  in  evidence  when  such  witness  is  dead  or  without 
jurisdiction  of  court. 

Cited  in  footnote  to  People  v.  Elliott,  GO  L.  R.  A.  318,  which  sustains  right  to 
read  on  second  trial  testimony  of  witness  dying  after  first  trial. 
Depositions. 

Overruled  in  State  v.  Potter,  6  Idaho,  585,  57   Pac.  431,  holding  depositions 


7  L.R.A.  646]  L.  R.  A.  CASES  AS  AUTHORITIES.  1376 

taken   upon   preliminary   examination,   inadmissible   on   trial   of   one   accused   of 
assault  with  intent  to  commit  rape. 

7  L.  R.  A.  649,  FOWLER  v.  SAKS,  7  Mackey,  570. 
Rig-fats   in   party   wall. 

Cited  in  Smoot  v.  Heyl,  34  App.  D.  C.  482,  holding  that  party  walls  did  not 
exist  at  common  law,  and  servitude  created  by  statute  must  be  strictly  con- 
strued. 

Cited  in  footnotes  to  Harber  v.  Evans,  10  L.  R.  A.  41,  which  authorizes  in- 
junction against  making  openings  in  party  wall ;  Burr  v.  Lamaster,  9  L.  R.  A. 
637,  which  holds  party  wall,  and  agreement  to  pay  for  same  on  using  it,  an 
encumbrance;  Clemens  v.  Speed,  19  L.  R.  A.  240,  which  denies  to  party-wall 
owners  reciprocal  easement  from  support  of  buildings;  Nalle  v.  Paggi,  13  L.  R. 
A.  50,  which  holds  sale  of  lot  a  use  of  party  wall;  Putzell  v.  Drovers  &  M.  Xat. 
Bank,  22  L.  R.  A.  632,  which  upholds  right  to  remove  boundary  wall  for  erec- 
tion of  better  wall;  Lincoln  v.  Burrage,  52  L.  R.  A.  110,  which  holds  that 
grantee's  promise  to  pay  part  of  cost  of  party  wall  when  used,  does  not  run  with 
land. 

Doubted  in  Arrick  v.  Fry,  8  App.  D.  C.  135.  questioning  whether  under  plead- 
ing alleging  negligence  in  removal  and  reconstruction  of  party  wall  plaintiff  was 
entitled  to  recover  damages  under  covenant  to  make  good. 
Responsibility   for  servant's  act. 

Cited  in  note  (8  L.  R.  A.  464)  on  master's  liability  for  injuries  caused  through 
servant's  negligence. 
Estoppel  l>y  receiving1  benefit. 

Cited  in  Carpenter  v.  Reliance  Realty  Co.   103  Mo.  App.  501,  77  S.  W.   1004, 
holding  construction  company  not  estopped  by  giving  notice  of  intention  to  exca- 
vate under  ordinance,  from  asserting  its  invalidity. 
Delegation  of  obligation  imposed  by  law. 

Cited  in  St.  Louis  &  S.  F.  R.  Co.  v.  Madden,  77  Kan.  85,  17  L.R.A.  (N.S.)  791, 
93  Pac.  586,  holding  one  who  has  a  piece  of  work  to  perform  which  is  in  its 
nature  dangerous  to  others  cannot  delegate  the  obligation  to  an  independent 
contractor  and  escape  liability. 

Cited  in  notes  (65  L.R.A.  852)  on  liability  for  injuries  caused  by  performance 
of  work  by  independent  contractor  which  is  dangerous  unless  certain  precautions 
are  observed;  (66  L.R.A.  124)  on  liability  for  acts  of  independent  contractor 
where  injuries  result  from  nonperformance  of  absolute  duties  of  employer. 

7  L.  R.  A.  656,  JOHNSON  v.  LEMAN,  131  111.  609,  19  Am.  St.  Rep.  63,  23  N. 

E.  435. 
Trust    estate    not    bound    by    trustee's    contracts. 

Cited  in  Goodman  v.  Lee,  40  111.  App.  230,  holding  trust  estate  not  chargeable 
with  services  rendered  under  contract  with  trustee;  Dinsmoor  v.  Bressler,  56  111. 
App.  213,  holding  person  employed  by  solvent  trustee  not  stipulating  against 
personal  liability  without  court  order  cannot  recover  from  estate;  Rand,  McN. 
&  Co.  v.  Francis,  67  111.  App.  226,  holding  neither  court  nor  assignee  for  cred- 
itors can  bind  estate  for  future  rent;  Chicago  Fire  Place  Co.  v.  Tait.  58  111.  App. 
295,  holding  acceptance  of  lease  by  receiver  does  not  affect  liability  of  estate; 
Rickel  v.  Chicago,  R.  I.  &  P.  R.  Co.  112  Iowa,  152,  83  N.  W.  957,  holding  admin- 
istrator's contract  for  attorney's  services  not  binding  on  estate;  McAuley  v. 
O'Connor,  92  111.  App.  593,  holding  executor's  contract  for  attorney's  services  not 
binding  on  estate;  Valley  Nat.  Bank  v.  Crosby,  108  Iowa,  654,  79  N.  W.  383, 


1371    -  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  658 

holding  administrator  cannot  bind  estate  for  money  borrowed,  but  not  used,  for 
repairs. 

Cited  in  note   (52  Am.  St.  Rep.  122)    on  liabilities  of  estates  of  decedents  on 
contracts  and  for  torts  of  personal  representatives. 
Trustee  personally  liable. 

Cited  in  Bradner,  S.  &  Co.  v.  Williams,  178  111.  425,  53  N.  E.  358,  holding 
assignee  for  creditors  personally  liable,  in  absence  of  contrary  agreement,  on  con- 
tract for  estate;  Truesdale  v.  Philadelphia  Trust,  S.  D.  &  Ins.  Co.  63  Minn.  52, 

65  N.  W.   133,  holding  solvent  trustee  of  bond  holders  not  stipulating  against 
personal  liability,  liable  for  attorney's  services;  Briggs  v.  Breen,  123  Cal.  660,  56 
Pac.  633,  holding  in  absence  of  contrary  agreement  executors  liable  for  services 
of  attorneys;  Meyers  v.  Cohn,  4  Misc.  186.  23  N.  Y.  Supp.  996,  holding  guardian 
personally  liable  for  commissions  of  broker  employed  in  purchase  of  real  estate 
for  infants;   McGovern  v.  Bennett,  146  Mich.  562,  109  N.  W.  1055,  holding  de- 
fendant by  contracting  as  trustee  made  himself  personally  liable  for  commission 
agreed  upon  for  sale  of  land  of  estate. 

Cited  in  notes  (27  Am.  St.  Rep.  941)  on  personal  liability  of  trustee;  (25  Eng. 
Rul.  Cas.  336)  on  liability  of  trustee  for  losses. 

Distinguished  in  Empire  Fire  Proofing  Co.  v.  Comstock,  121  111.  App.  526,  hold- 
ing where  it  appears  from  the  contract  in  question,  but  the  manner  in  which  it  is 
signed,  as  well  as  by  surrounding  circumstances  that  the  parties  signing  the 
same  as  trustees  were  not  acting  for  themselves,  but  for  the  trust  estate,  the 
latter  only  is  bound  and  not  the  trustees  in  their  personal  capacities. 

Disapproved   in   United   States   Fidelity   &   Guaranty  Co.   v.  People,   44   Colo. 
571,  98  Pac.  828,  holding  executor  or  administrator,  is  entitled  to  be  reimbursed 
from  estate,  through  order  of  court,  .for  money  paid  out  for  proper  and  reason- 
able services  of  other  persons. 
Trustee's  lien   on   trust   estate. 

Cited  in  Sherman  v.  Leman,  137  111.  98,  27  N.  E.  57,  holding  trustee  has  lien 
on  trust  estate  for  expenses  of  litigation  determining  appointment  invalid. 

Annotation  cited   in   Shirkey   v.  Kirby,   110  Va.  458,   135  Am.  St.  Rep.   949, 

66  S.  E.  40,  holding  that  court  on  application  of  trustee  has  power  to  secure 
loan  for  necessary  repairs  and  payment  of  inheritance  tax  on  corpus  pf  estate 
held  in  trust  as  home  for  parents  and  children,  with  remainder  to  children. 

7  L.  R.  A.  658,  WINTERS  v.  DE  TURK,  133  Pa.  359,  19  Atl.  354. 
When    statute    of    limitations    begins    to    rnn. 

Cited  in  Matlack  v.  Mutual  L.  Ins.  Co.  37  W.  X.  C.  528,  holding  statute  of 
limitations  does  not  run  on  beneficiary's  right  of  action  to  avoid  forfeiture  of  life 
insurance  until  insured's  death;  Britt  v.  Gordon,  132  Iowa,  440,  108  N.  W.  319, 
11  A.  &  E.  Ann.  Cas.  407,  holding  statute  requiring  application  for  admeasure- 
ment of  dower  to  be  brought  within  ten  years  after  death  of  spouse  does  not  ap- 
ply to  action  in  equity  or  for  the  partition  of  a  distributive  share,  but  the 
general  statute  of  limitations  applies  to  such  actions;  Wilcox  v.  Wilcox,  139 
Mich.  370,  102  N.  W.  954,  as  to  when  limitations  begin  to  run  against  wifes 
dower. 

Disapproved  in  Lucas  v.  White,  120  Iowa,  739,  98  Am.  St.  Rep.  380,  95  N.  W. 
209,  holding  under  statute  providing  that  limitations  at  time  of  accrual  of  cause 
of  action  the   statute   of  limitations  against  a  wife's   right  of   dower  does  not 
begin  to  run  after  her  husband's  death. 
L.R.A.  Au.  Vol.  I.— 87. 


7  L  R.A.  658]  L.  E.  A.  CASES  AS  AUTHORITIES.  1378 

Dower    right. 

Cited  in  note  (18  L.  R.  A.  79)  on  power  of  husband  or  his  creditors  to  defeat 
wife's  dower. 

7  L.  R.  A.  661,  CREW  v.  BRADSTBEET  CO.  134  Pa.  161,  19  Am.  St.  Rep.  681, 

19  Atl.  5GO. 
Liability   of   mercantile   agency    for    false    report. 

Cited  in  footnote  to  Dun  v.  City  Nat.  Bank,  23  L.  R.  A.  687,  which  holds  mer- 
cantile agency  not  liable  for  false  report  by  subagent. 
Contracts  against  liability  for  negligence. 

Cited  in  Denver  Public  Warehouse  Co.  v.  Hunger,  20  Colo.  App.  58,  77  Pac. 
5,  holding  contracts  restricting  liability  for  negligence  are  strictly  construed 
against  party  seeking  the  exemption. 

7  L.  R.  A.  663,  REHFUSS  v.  MOORE,  134  Pa.  462,  19  Atl.  756. 
Sufficiency   of  schedule   in   limited   partnership. 

Cited  in  Haslet  v.  Kent,  160  Pa.  88,  34  W.  X.  C.  58,  28  Atl.  501,  holding 
schedule  of  property  of  limited  partnership  including  items  of  notes  and  accounts 
payable  and  bills  receivable,  insufficient;  Laflin  &  R.  Powder  Co.  v.  Steytler,  146 
Pa.  443,  14  L.  R.  A.  695,  29  W.  X.  C.  233,  14  Atl.  215,  holding  description  of 
several  parcels  of  land  as  one  tract,  and  buildings,  engines,  etc.,  as  one  entire 
plant,  sufficient;  Wood  v.  Sloman,  150  Mich.  189,  114  X.  W.  317,  holding 
schedule  of  two  dollars  cash  and  $499,998  as  value  of  a  formula  was  not  sufficient, 
it  being  vague  and  not  in  good  faith. 
Taxability  of  capital  invested  in  patents. 

Cited  in  Com.  v.  Westinghouse  Electric  &  Mfg.  Co.  151  Pa.  267,  24  Atl.  1107, 
holding  capital  of  company  invested  in  patent  rights  not  taxable  by  state. 
Letters  patent  as  property. 

Cited  in  Messinger  v.  Knappenberger,  12  Xorth.  Co.  Rep.  381,  38  Pa.  Co.  Ct. 
331,  20  Pa  Dist.  R.  909,  to  the  point  that  letters  patent  is  properly  subject  to 
order  in  judgment  creditor's  action. 

7  L.  R.  A.  666,  COM.  v.  GARDNER,  133  Pa.  284,  19  Am.  St.  Rep.  645,  19  Atl.  550. 
What    constitutes   "peddling." 

Approved  in  Lehighton  v.  Smith,  7  Northampton  Co.  Rep.  193,  6  Lack.  L. 
News,  196,  9  Pa.  Dist.  R.  430,  and  South  Easton  v.  Moser,  14  Lane.  L.  Rev.  238, 
holding  milkman  delivering  milk  to  regular  customers,  not  hawker  or  peddler; 
Irwin  v.  Douglass,  8  Pa.  Dist.  R.  506,  30  Pittsb.  L.  J.  N.  S.  108;  Lansford  v. 
Wertman,  18  Pa.  Co.  Ct.  470,  both  holding  farmer  selling  his  own  products,  not 
hawker  or  peddler;  Com.  v.  Roenick,  31  Pittsb.  L.  J.  X.  S.  192,  hoi-ding  butcher 
incidentally  selling  meats  from  the  wagon,  not  peddler;  Com.  v.  Hepner,  22  Pa. 
Co.  Ct.  632,  holding  butcher  selling  meat  to  customers  not  within  ordinance 
against  hawking,  peddling  or  selling  merchandise;  Com.  v.  Deinno,  20  Pa.  Co.  Ct. 
371,  holding  fruit  dealer  selling  purchased  products  by  outcry  through  streets 
and  calling  at  houses,  hawker  or  peddler;  Re  Wilson,  8  Mackey,  348,  12  L.  R.  A. 
625,  holding  peddler  need  not  be  personally  interested  in  sales,  to  be  within 
legislative  description;  State  v.  Hoffman,  50  Mo.  App.  589  (dissenting  opinion), 
majority  holding  one  going  from  house  to  house  taking  orders  from  samples 
vvnich  are  filled  by  employer  if  approved,  not  peddler;  Stamford  v.  Fisher,  63 
Hun,  127,  17  N.  Y.  Supp.  609,  holding  one  carrying  goods  for  filling  prior  orders, 
not  peddler;  Horn  v.  Com.  2  Pa.  Dist.  R.  176,  10  Lane.  L.  Rev.  24,  12  Pa.  Co.  Ct. 
285,  holding  resident  merchant  selling  by  sample  or  receiving  and  filling  orders 


1379  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  666 

in  other  counties,  not  hawker  or  peddler;  New  Castle  v.  Cutler,  15  Pa.  Super.  Ct. 
{525.  holding  uniformity  of  taxation  clause  not  violated  by  exemption  of  farmers, 
gardeners,  or  others  raising,  marketing,  and  selling  their  own  produce,  from  opera- 
tion of  peddling  law;  Com.  v.  Morgan,  10  Pa.  Co.  Ct.  292,  holding  agent  within 
proviso  of  peddling  act  excepting  sales  by  manufacturers  of  their  own  goods; 
South  Easton  v.  Moser,  14  Lane.  L.  Rev.  238,  holding  farmer  delivering  milk  in 
borough  not  subject  to  ordinance  requiring  license  fee  from  peddlers. 

Cited  in  Kansas  City  v.  Overton,  68  Kan.  565,  75  Pac.  549,  holding  a  city  ordi- 
nance imposing  a  license  tax  upon  hucksters  and  hawkers  is  not  invalid  because 
it  exempts  from  its  operation  persons  selling  the  products  of  their  own  or  leased 
lands:  St.  Louis  v.  Meyer,  185  Mo.  600,  84  S.  W.  914,  holding  a  farmer  who  takes 
his  farm  products  to  a  city  and  sells  them  from  place  to  place  not  a  peddler  under 
statute;  Com.  v.  Hunsicker,  30  Pa.  Co.  Ct,  629,  14  Pa.  Dist.  R.  545:  Com.  v, 
Roenick.  10  Pa.  Dist.  R.  52, — holding  butcher  whose  principal  business  is  selling 
beef,  slaughtered  by  himself,  at  his  shop  and  also  from  his  wagon  not  a  hawker 
or  a  peddler  under  ordinance  prohibiting  same. 

Cited  in  footnotes  to  Hewson  v.  Englewood,  21  L.  R.  A.  736,  which  holds  agent 
delivering  from  wagon  goods  previously  ordered,  and  taking  other  orders,  not  a 
peddler;  Emmons  v.  Levvistown,  8  L.  R.  A.  328,  which  holds  book  canvassers  not 
peddlers;  State  v.  Wells,  48  L.  R.  A.  99,  which  holds  one  soliciting  orders  for 
goods,  and  carrying  goods  to  fill  previous  sales,  not  a  peddler;  Stuart  v.  Cunning- 
ham, 20  L.  R.  A.  430,  which  holds  one  delivering  goods  previously  sold  by  another 
not  a  peddler. 

Cited  in  note   (8  L.  R.  A.  873)   as  to  hawking  and  peddling. 

Distinguished  in  Com.  v.  Feinberg,  3  Pa.  Dist.  R.  362,  13  Pa.  Co.  Ct.  528,  24 
Pittsb.  L.  J.  N.  S.  132,  holding  exemption  of  manufacturers  from  penalties  for 
hawking  and  peddling,  extends  to  their  agents. 
Hiiilit    to    peddle. 

Approved  in  Titusville  v.  Brennan,  143  Pa.  646,  14  L.  R.  A.  101,  3  Inters.  Com. 
Rep.  736,  24  Am.  St.  Rep.  580,  28  W.  N.  C.  538,  22  Atl.  893,  holding  law  regu- 
lating peddling,  valid;  Com.  v.  Deinno,  20  Pa.  Co.  Ct.  371,  sustaining  validity  of 
special  statute  forbidding  hawking  or  peddling  of  purchased  products;  Sayre  v. 
Phillips,  30  W.  X.  C.  197,  holding  ordinance  prohibiting  unlicensed  peddling, 
proper  police  regulation;  Brownback  v.  North  Wales  (omitted  from  official  re- 
port in  194  Pa.  609),. 49  L.  R.  A.  446,  footnote,  p.  446,  45  Atl.  660,  Affirming  10 
Pa.  Super.  Ct.  229,  44  W.  X.  C.  259,  holding  ordinance  for  licensing  of  persons 
selling  in  streets  or  soliciting  orders,  not  invalid  as  to  residents  because  dis- 
criminating in  favor  of  nonresidents;  Sayre  v.  Phillips,  148  Pa.  488,  16  L.  R.  A. 
50,  33  Am.  St.  Rep.  842,  24  Atl.  76,  holding  peddling  ordinance  which  establishes 
a  prohibitory  license  fee  except  as  to  residents,  void;  Port  Clinton  v.  Shafer,  18 
Pa.  Co.  Ct.  69,  14  Lane.  L.  Rev.  29,  5  Pa.  Dist.  R.  585,  denying  validity  of  regu- 
lation by  borough  of  occupation  prohibited  by  statute. 

Cited  in  People  v.  Thomson,  103  Mich.  83,  61  X.  W.  345,  raising  but  not  de- 
ciding questions  as  to  validity  of  peddling  ordinance;  Com.  ex  rel.  Adderton  v. 
Gombert,  26  Pa.  Co.  Ct.  408,  holding  special  statutes  relating  to  hawking  and 
peddling,  unrepealed;  Re  Snyder,  10  Idaho,  697,  68  L.R.A.  714,  79  Pac.  819, 
holding  ordinance  prohibiting  farmer  from  selling  products  of  his  farm  invalid: 
Com.  ex  rel.  Adderton  v.  Gombert,  11  Pa.  Dist.  R.  436,  as  to  constitutionality 
of  act  prohibiting  peddling;  Warden's  License,  24  Pa.  Super.  Ct.  76,  holding 
ordinance  against  peddling  valid  exercise  of  police  power. 

Cited  in  footnote  to  Rosenbloom  v.  State,  57  L.  R.  A.  923,  which  sustains  license 
tax  on  peddlers,  though  vendors  of  own  products  exempt;  West  Easton  v.  Zuckt 


7  L.R.A.  666]  L.  R.  A.  CASES  AS  AUTHORITIES.  1380 

8  Northampton    Co.    Rep.    119,    upholding   validity   of   ordinance    providing    for 
license  fee  for  sale  of  food  products;   Mt.  Carmel  v.  Fisher,  21  Pa.  Super.   Ct. 
646,  upholding  validity  of  ordinance  providing  for  curbstone  market  on  certain 
days  of  the  week  only;  Saulsbury  v.  State,  43  Tex.  Crim.  Rep.  95,  96  Am.  St.  Rep. 
837,  63  S.  W.  568,  holding  statute  requiring  peddlers  to  take  out  license  not  a 
violation  of  Federal  Constitution. 

Cited  in  note   (48  Am.  St.  Rep.  237)   on  equality  of  right  as  to  peddlers. 
Prohibition    of    peddling;    as    regulation    of    commerce. 

Approved  in  Com.  v.  Dunham,  191  Pa.  74,  44  W.  N.  C.  101,  43  Atl.  84,  Affirm- 
ing 4  Pa.  Super.  Ct.  76,  holding  that  legislation  regulating  hawking  and  peddling, 
proper  exercise  of  police  power;  Emert  v.  Missouri,  156  U.  S.  309,  39  L.  ed.  433,  5 
Inters.  Com.  Rep.  76,  15  Sup.  Ct.  Rep.  367,  Affirming  State  v.  Emert,  103  Mo. 
250,  11  L.  R.  A.  221,  3  Inters.  Com.  Rep.  529,  23  Am.  St.  Rep.  874,  15  S.  W.  81, 
holding  undiscriminating  statute  for  licensing  of  peddlers,  not  regulation  of  com- 
merce as  to  goods  previously  sent  by  foreign  manufacturers;  Bloomington  v. 
Bourland,  137  111.  537,  3  Inters.  Com.  Rep.  669,  31  Am.  St.  Rep.  382,  27  N.  E.  692, 
holding  ordinance  prohibiting  unlicensed  soliciting  of  orders  for  books  by  agent 
of  foreign  wholesaler,  void;  People  v.  Sawyer,  106  Mich.  431,  64  X.  W.  333,  hold- 
ing sale  by  resident  from  general  stock,  and  not  in  original  package,  does  not 
involve  interstate  commerce;  Re  Wilson,  8  Mackey,  358,  12  L.  R.  A.  628,  holding 
license  tax  on  peddlers  not  necessarily  regulation  of  interstate  commerce;  State 
v.  Hoffman,  50  Mo.  App.  590 (  dissenting  opinion),  raising  without  deciding  ques- 
tion of  regulation  of  peddling  as  exercise  of  police  power. 

Cited  in  Re  Lipschitz,  14  N.  D.  630,  95  N.  W.  157,  holding  act  taxing  hawking 
and  peddling  not  open  to  objection  that  it  authorizes  a  tax  on  interstate  com- 
merce; Kinsell  v.  Weiss,  20  Pa.  Dist.  R.  217,  to  the  point  that  act  of  1846 
prohibited  hawking  or  peddling  of  foreign  or  domestic  goods  in  county  of 
Schuylkill;  Re  Stetler,  21  Montg.  Co.  L.  Rep.  168,  holding  that  act  of  1846 
prohibits  peddling  in  Montgomery  county  and  is  within  police  power. 

Cited  in  notes  (12  L.  R.  A.  624)  as  to  power  of  Congress  to  regulate  inter- 
state commerce;  (14  L.  R.  A.  98),  as  to  peddlers  and  drummers  as  related  to 
interstate  commerce;  (60  L.  R.  A.  692)  as  to  corporate  taxation  and  the  com- 
merce clause;  (19  L.R.A. (X.S.)  302)  on  license  of  occupation  tax  on  hawkers, 
peddlers,  and  persons  engaged  in  soliciting  orders  by  sample  or  otherwise,  as 
violating  the  commerce  clause;  (27  Am.  St.  Rep.  563)  on  state  regulation  of 
licenses  as  interference  with  interstate  commerce;  (78  Am.  St.  Rep.  250)  on 
power  of  legislature  to  declare  hawking  and  peddling  criminal;  (129  Am.  St.  Rep. 
277  Y  on  constitutional  limitations  on  power  to  impress  license  or  occupation 
taxes;  (39  L.  ed.  U.  S.  540)  on  state  taxation  and  licenses  as  affecting  interstate 
commerce;  (46  L.  ed.  U.  S.  785)  on  peddlers  and  drummers  as  related  to  inter- 
state commerce. 

Distinguished  in  McLaughlin  v.  South  Bend,   126  Ind.  473,   10  L.  R.  A.  358, 
footnote,  p.  357,  26  X.  E.  185,  which  holds  requirement  of  peddling  license  unen- 
forceable against  person  negotiating  for  sale  of  property  in  other  state. 
Police  power. 

Cited  in  Mallie  v.  Yeadon,  10  Del.  Co.  Rep.  534,  holding  that  ordinance  pre- 
scribing fee  for  permit  to  bury  body  is  valid  police  regulation. 

Cited  in  note  (25  Am.  St.  Rep.  887)  on  validity  of  police  regulation  of  modes 
and  places  of  doing  business. 


1381  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  673 

7  L.  R,  A.  669,  CITIZENS'  LOAN,  FUND  &  SAV.  ASSO.  v.  FRIEDLEY,   123 

Ind.  143,  18  Am.  St.  Rep.  320,  23  X.  E.  1075. 
Professional   responsibility Of   attorney. 

Cited  in  Kepler  v.  Jessup,  11  Ind.  App.  255,  37  X.  E.  G55,  holding  attorney 
responsible  only  for  ordinary  care  and  skill,  with  reference  to  business  under- 
taken; Hill  v.  Mynatt  (Tenn.  Ch.  App.),  52  L.  R.  A.  894,  59  S.  W.  163,  holding 
attorney  not  liable  to  client  for  determination  to  proceed  in  pending  state  action, 
instead  of  abandoning  and  proceeding  in  Federal  court;  Xickless  v.  Pearson,  126 
Ind.  490,  26  N.  E.  478,  by  Coffey,  J.,  dissenting,  on  point  that  attorney  is  liable 
to  client  for  ignorance  or  unskilfulness  in  managing  business. 

Cited   in   notes    (52   L.R.A.   883,   889)    on   liability   of  attorney  to   client   for 
mistake;    (24  Eng.  Rul.  Cas.  GG8,  669)    on  liability  of  solicitor. 
—  Of  physician. 

Cited  in  Logan  v.  Field,  75  Mo.  App.  601,  holding  liability  of  physicians  for 
professional  error  governed  by  same  rule  as  that  applying  to  attorneys. 
Presumption    of    knowledge    of    law. 

Cited  in  State  ex  rel.  Worrell  v.  Peelle,  124  Ind.  521,  8  L.  R.  A.  231,  24  N.  E. 
440,  holding  that  presumption  of  governor's  knowledge  of  law  does  not  change 
into  appointment  to  office  within  his  sole  power  of  appointment,  a  commission 
reciting  an  election  by  legislature. 

7  L.  R.  A.  671,  JELLETT  v.  RHODE,  43  Minn.  166,  45  N.  W.  13. 
Lease;    statute   of   frauds. 

Followed  in  Wickson  v.  Monarch  Cycle  Mfg.  Co.  128  Cal.  160,  79  Am.  St.  Rep. 
36,  60  Pac.  764,  and  Engler  v.  Schneider,  66  Minn.  389,  69  N.  W.  139,  holding 
oral  contract  for  lease  of  land  for  one  year  to  commence  in  the  future,  void. 

Cited  in  Cram  v.  Thompson,  87  Minn.  174,  91  N.  W.  483,  holding  void  agree- 
ment to  execute  lease  for  one  year  commencing  in  futuro,  void ;  Johnson  v.  Albert- 
son,  51  Minn.  335,  53  X.  W.  (542,  holding  oral  lease,  void  under  statute  of  frauds, 
not  evidence  of  duration  of  term;  Brosius  v.  Evans,  90  Minn.  523,  97  N.  W.  373, 
holding  void,  oral  contract  for  leasing  of  premises  not  to  be  executed  within  one 
year. 

Cited  in  notes  (10  L.  R.  A.  727)  on  lease  within  statute  of  frauds;  (8  L.  R.  A. 
221)  on  tenancy  from  year  to  year;  how  created. 

7  L.  R.  A.  673,  SWAXSON  v.  MISSISSIPPI  &  R.  RIVER  BOOM  CO.  42  Minn. 

,  532,  44  X.  W.  986. 
Private  right  of  action  for  public  nuisance. 

Cited  in  Lammers  v.  Brennan,  46  Minn.  211,  48  N.  W.  766,  holding  action 
will  not  lie  for  damages  sustained  in  performing  contract  to  drive  logs  down 
stream,  because  of  obstruction  existing  before  contract  was  made;  Aldrich  v. 
Wetmore,  52  Minn.  109.  53  X.  W.  1072,  holding  action  for  obstructing  street  may 
be  maintained  by  adjacent  proprietor,  although  access  to  premises  not  entirely 
cut  off;  Lakkie  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  44  Minn.  440,  46  N.  W.  912, 
holding  laying  railroad  track  in  street  does  not  give  adjacent  proprietor  right  of 
action  for  obstructing  street,  when  access  to  premises  not  impaired:  Webster 
v.  Harris,  111  Tenn.  668,  59  L.R.A,  330,  69  S.  W.  782,  holding  like  20  miles  long, 
with  no  proper  channels  to  make  navigation  available,  not  navigable;  Guilford 
v.  Minneapolis  &  St.  L.  R.  Co.  94  Minn.  109,  302  X.  W.  365,  holding  that  a  private 
person  cannot  maintain  an  action  for  the  obstruction  of  a  public  highway  un- 
less damaged  in  a  special  way  not  common  to  the  public;  Pedrick  v.  Raleigh  &  P. 
S.  R.  Co.  143  N.  C.  498,  10  L.R.A.(X.S.)  559,  55  S.  E.  877,  holding  that  a  private 


7  L.R.A.  673]  L.  R.  A;  CASES  AS  AUTHORITIES.  1382 

person  may  not  maintain  an  action  for  an  obstruction  of  a  navigable  river  unless 
he  suffers  some  special  wrong;  Drake  v.  Sault  Ste  Marie  Pulp  &  Paper  Co.  25 
Ont.  App.  Rep.  259,  holding  that  riparian  fisherman  can  maintain  action  for  dam- 
ages from  obstruction  of  navigable  stream. 

Cited  in  footnotes  to  South  Carolina  S.  B.  Co.  v.  Wilmington,  C.  &  A.  R.  Co. 
33  L.  R.  A.  541,  which  denies  steamboat  owner's  right  of  action  for  obstructing 
navigation  of  river;  Reyburn  v.  SaAvyer,  65  L.R.A.  931,  which  sustains  right  of 
owner  of  island  to  injunction  against  maintenance  of  fishing  nets  in  adjoining 
waters  so  as  to  obstruct  navigation. 

Cited  in  notes  (39  L.  R.  A.  493)  on  private  right  of  action  against  boom  owner; 
(13  L.  R.  A.  828)  on  enforcement  of  rights  of  riparian  proprietor  m  navigable 
stream  in  equity;  (59  L.  R.  A.  85,  90)  on  injury  to  riparian  rights  from  obstruc- 
tion to  navigable  stream;  (38  L.R.A. (N.S. )  765)  on  private  right  of  action  for 
obstruction  of  navigable  stream;  (57  Am.  St.  Rep.  696,  701)  on  remedies  for  ob- 
struction of  navigable  waters. 

Distinguished  in  Viebahn  v.  Crow  Wing  County,  96  Minn.  281,  3  L.R.A.  (N.S.) 
1129,  104  N.  W.  1089,  holding  that  persons  operating  a  line  of  steamboats  upon 
a  river  suffered  such  a  special  damage  by  the  obstruction  of  the  stream,  that 
they  could  recover  therefor. 

Overruled  in  effect  in  Page  v.  Mille  Lacs  Lumber  Co.  53  Minn.  498,  55  N.  W. 
608,    holding    person    suffering    special    damage    from    obstruction    of    navigable 
stream  has  right  of  action,  although  injury  same  in  kind  as  that  suffered  by 
public. 
Right   to   abate   public   nuisance. 

Cited  in  footnotes  to  Griffith  v.  Holman,  54  L.  R.  A.  178,  which  denies  private 
individual's  right  to  abate  public  nuisance  consisting  of  fence  across  navigable 
stream;  State  v.  Stark,  54  L.  R.  A.  910,  which  denies  right  of  private  person  to 
abate  liquor  nuisance  without  process  of  law. 
Relation  of  state  to  navigable  waters. 

Cited  in  footnote  to  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Ramsey,  8  L.  R.  A.  559, 
which  holds  title  to  land  under  navigable  river  in  state. 

Cited  in  notes    (12  L.  R.  A.  673)    on  state  sovereignty  over  inland  navigable 
rivers;    (12  L.  R.  A.  632)    on  navigable  waters  as  public  highways. 
Test   of   navigability   of   rivers. 

Cited  in  Minnesota  Canal  &  Power  Co.  v.  Coochiching  Co.  97  Minn.  440,  5 
L.R.A. (N.S.)  644,  107  X.  W.  405,  7  A.  &  E.  Ann.  Gas.  1182,  on  what  constitutes 
xiavigability  in  a  stream. 

Cited  in  footnote  to  Heyward  v.  Farmers'  Min.  Co.  28  L.  R.  A.  42,  which 
holds  navigable  capacity  test  of  navigability. 

7  L.  R.  A.  678,  EVANS  v.  ADAMS  EXP.  CO.  122  Ind.  362,  23  N.  E.  1039. 
Contributory   negligence   and   supervening   negligence. 

.  Cited  in  Cincinnati,  I.  St.  L.  &  C.  R.  Co.  v.  Grames,  8  Ind.  App.  136,  34  N. 
E.  613,  holding  injured  man  driving  slowly  upon  track,  after  listening  and  look- 
ing, with  view  partly  obstructed,  exercised  care  commensurate  with  danger;  In- 
niana,  I.  &  I.  R.  Co.  v.  Bundy,  152  Ind.  597,  53  N.  E.  175,  holding  jury  should 
determine  whether  brakeman  coupling  cars  assumed  risk  of  uncovered  signal 
wires  close  to  ground  and  unknown  to  him;  Krenzer  v.  Pittsburg,  C.  C.  &  St. 
L.  R.  Co.  151  Ind.  616,  68  Am.  St.  Rep.  252,  52  N.  E.  220  (dissenting  opinion), 
majority  holding  that  child  seven  and  one  half  years  old,  asleep  in  street  on 
railway  track,  contributed  to  his  injury;  DeLon  v.  Kokomo  City  Street  R.  Co. 
22  Ind.  App.  380,  53  N.  E.  847,  holding  plaintiff's  negligence  in  crossing  track 


1383  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  678 

ahead  of  car  proximate  cause  of  injury;  Summit  Coal  Co.  v.  Shaw,  1C  Iml. 
App.  16,  44  N.  E.  676,  holding  employer's  negligence  excusing  contributory  neg- 
ligence of  employee  must  be  committed  after  knowledge  of  employee's  danger; 
Louisville  &  N.  R.  Co.  v.  Cronbach,  12  Ind.  App.  675,  41  N.  E.  15,  holding  in- 
testate's negligence  in  walking  on  track  without  looking  or  heeding,  contrib- 
uted to  his  death;  Citizens'  Street  R.  Co.  v.  Stoddard,  10  Ind.  App.  285,  37  N. 
E.  723,  holding  sick  mother  not  necessarily  at  fault  in  sending  small  child  across 
street  on  necessary  errand;  Indiana  Stone  Co.  v.  Stewart,  7  Ind.  App.  566,  34 
N.  E.  1019,  holding  instruction  that  contributory  negligence  would  not  exonerate 
defendant  is  so  radically  wrong  that  it  cannot  be  cured  by  withdrawal ;  Citi- 
zens' Street  R.  Co  v.  Spahr,  7  Ind.  App.  29,  33  N.  E.  446,  holding  not  negligence 
per  se  to  board  a  moving  car;  Levey  v.  Bigelow,  6  Ind.  App.  693,  34  N.  E.  128, 
holding  danger  in  removing  ink  roller  from  press  was  obvious,  and  employee 
guilty  of  contributory  negligence;  Mann  v.  Belt  R.  &  Stock  Yard  Co.  128  Ind. 
141,  26  N.  E.  819,  holding  driver  of  vehicle  struck  by  train  approaching  from  di- 
rection in  which  view  unobstructed  for  quarter  of  mile,  guilty  of  contributory 
negligence;  Conner  v.  Citizens'  Street  R.  Co.  146  Ind.  440,  45  N.  E.  662,  holding 
instruction  not  objectionable  as  asking  jury  to  decide  law  where  negligence  had 
•been  defined;  Citizens  Street  R.  Co.  v.  Haner,  29  Ind.  App.  432,  62  N.  E.  658. 
holding  that  contributory  negligence  of  child  will  not  defeat  recovery,  where 
motorman  could  have  prevented  injury  after  discovery  of  child's  peril ;  Acton  v. 
Fargo  &  M.  Street  R.  Co.  20  X.  D.  446,  129  X.  W.  225,  holding  that  person  may 
recover  for  injury  although  he  himself  was  negligent  where  defendant  after  be- 
coming aware  of  the  danger  failed  to  use  proper  degree  of  care  to  avoid  injury; 
Morgan  v.  Pleshek,  120  Wis.  309,  97  N.  W.  916,  holding  persons  using  the  public 
.streets  must  exercise  reasonable  care  to  avoid  collisions  with  persons  or  vehicles; 
Indianapolis  Street  R.  Co.  v.  Schmidt,  35  Ind.  App.  211,  71  N.  E.  663,  holding 
where  driver  of  wagon  sees  man  standing  on  street  crossing,  and  has  reason- 
able ground  for  apprehending  he  is  unconscious  of  his  danger,  he  is  liable  for 
driving  against  him,  notwithstanding  antecedent  negligence;  Borg  v.  Spokane 
Toilet  Supply  Co.  50  Wash.  206,  19  L.R.A. (X.S.)  164,  96  Pac.  1037,  holding 
contributory  negligence  of  pedestrian  crossing  street  diagonally  in  middle 
of  block  in  front  of  team  he  saw  approaching  at  rate  of  six  or  eight  miles  an 
hour,  precluded  recovery  for  injuries;  Southern  Indiana  R.  Co.  v.  Fine,  163  Ind. 
626,  72  X.  E.  589,  holding  notwithstanding  negligence  of  workman  in  assuming 
dangerous  position  a  recovery  may  be  had  where  conductor  started  train  without 
giving  notice  to  workman;  dissenting  opinions  in  Robards  v.  Indianapolis  Street 
R.  Co.  32  Ind.  App.  308,  67  X.  E.  953;  Indianapolis  Street  R.  Co.  v.  O'Donnell, 
35  Ind.  App.  326,  73  X.  K.  1G3, — on  contributory  negligence  as  defense;  Indian- 
apolis Street  R.  Co.  v.  Tenner,  32  Ind.  App.  327,  67  N.  E.  1044  (dissenting 
opinion),  what  constitutes  contributory  negligence. 

•Cited  in  footnote  to  State  v.  Lauer,  20  L.  R.  A.  61,  which  holds  it  contributory 
negligence  to  leave  surveyor's  transit  set  up  in  street. 

Cited  in  notes  (17  L.  R.  A.  12o)  on  contributory  negligence  of  traveler  in  de- 
viating from  usual  thoroughfare;  (11  L.  R.  A.  130;  12  L.  R.  A.  280)  on  contrib- 
utory negligence  of  passenger  defeating  recovery  for  injury;  (8  L.  R.  A.  84)  on 
co-operating  causes  of  injury;  (19  L.R.A. (N.S.)  165)  on  duty  of  pedestrian  on 
public  street  to  avoid  passing  teams;  (33  L.R.A.(X.S-)  785)  on  voluntary  ob- 
struction of  view  while  on  highway  as  contributory  negligence;  (24  Am.  St.  Rep. 
398)  on  contributory  negligence  as  bar  to  recovery. 

Distinguished  in  Jones  v.  Swift,  30  Wash.  469,  70  Pac.  1109,  holding  negli- 
gence in  knocking  barrels  and  boards  into  manhole  by  driving  against  them 
not  excused  because  same  were  not  securely  fastened. 


7  L.R.A.  681]  L.  R.  A.  CASES  AS  AUTHORITIES.  1384 

7  L.  R.  A.  681,  QUILL  v.  INDIANAPOLIS,  124  Ind.  292,  23  N.  E.  788. 
Notice    of    hearing1    on    local    assessments. 

Cited  in  Charles  v.  Marion,  100  Fed.  540,  holding  act  which  does  not  pro- 
vide for  notice  for  hearing  to  determine  actual  benefits  for  local  improvements, 
invalid;  Adams  v.  Shelbyville,  154  Ind.  481,  49  L.  R.  A.  803,  77  Am.  St.  Rep. 
484,  57  N.  E.  114,  holding  publication  of  notice  to  make  objection  to  necessity  for 
construction  of  public  improvement,  sufficient;  Dugger  v.  Hicks,  11  Ind.  App.  382, 
36  N.  E.  1085,  holding  special  finding  that  notices  published  as  provided  in 
statute,  sufficient  to  uphold  conclusion  of  trial  court;  McEneney  v.  Sullivan, 
125  Ind.  410,  25  N.  E.  540,  holding  notice  provided  by  act  for  street  improvement 
sufficient;  Barber  Asphalt  Paving  Co.  v.  Edgerton,  125  Ind.  463,  25  N.  E.  436, 
holding  published  notice  for  hearing  objections  to  report  of  cost  of  work  after 
completion,  sufficient;  Klein  v.  Tuhey,  13  Ind.  App.  75,  40  N.  E.  144,  holding  pub- 
lication of  notice  from  September  2  to  September  16,  both  inclusive,  is  two 
weeks'  publication;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Fish,  158  Ind.  527,  63 
N.  E.  454,  holding  notice  of  primary  resolution  of  necessity  for  improvement  not 
necessary  to  validity  of  assessment;  Edwards  v.  Cooper,  168  Ind.  66,  79  N.  E. 
1047,  holding  the  legislature  has  power  to  provide  for  drainage  without  grant- 
ing a  hearing  on  the  need  thereof  to  those  residing  in  the  taxing  districts; 
Brown  v.  Central  Bermudez  Co.  162  Ind.  456,  69  N.  E.  150,  holding  it  is  not 
the  notice  of  the  passage  of  the  declaratory  resolution  which  gives  jurisdiction 
over  the  persons  of  the  property  owners;  Pennsylvania  Co.  v.  Cole,  132  Fed.  685, 
on  construction  of  statute  requiring  public  notice  of  proposed  improvements. 
Limitation  of  public  indebtedness. 

Cited  in  Porter  v.  Tipton,  141  Ind.  350,  40  N.  E.  802,  holding  act  providing 
for  payment  of  improvement  out  of  assessments  against  property  owners  in  ten 
annual  instalments  does  not  contemplate  charging  cost  primarily  against  city; 
Laporte  v.  Gamewell  Fire  Alarm  Teleg.  Co.  146  Ind.  471,  35  L.  R.  A.  689,  58 
Am.  St.  Rep.  359,  45  N.  E.  588,  holding  obligations  payable  only  out  of  fund, 
and  not  by  municipality  generally,  not  within  inhibition  against  indebtedness; 
Braun  v.  Benton  County,  17  C.  C.  A.  169,  34  U.  S.  App.  393,  70  Fed.  370,  Affirm- 
ing 66  Fed.  482,  holding  gravel-road  bonds  not  county  indebtedness;  Joliet  v. 
Alexander,  194  111.  465,  62  N.  E.  861,  holding  certificates  for  waterworks  ex- 
tension indebtedness  of  city  though  payable  out  of  particular  fund;  Baker  v. 
Seattle,  2  Wash.  583,  27  Pac.  462,  holding  street  improvement  warrants  payable 
out  of  street  improvement  funds  no  part  of  indebtedness  within  constitutional 
inhibition;  Kansas  City  v.  Ward,  134  Mo.  186,  35  S.  W.  600,  holding  city  agent 
only  to  collect  park  certificates  so  that  they  are  not  indebtedness  within  consti- 
tutional inhibition;  Reynolds  v.  Waterville,  92  Me.  327,  42  Atl.  553  (dissenting 
opinion),  majority  holding  that  act  providing  for  city  hall  commission,  scheme 
to  get  around  inhibition  against  indebtedness;  Defrees  v.  Ferstl,  154  Ind.  698, 
57  N.  E.  296  (dissenting  opinion),  to  point  that  no  city  debt  results  from  street 
improvement  contract  until  making  of  estimates  from  time  to  time,  or  of  final 
estimate;  Allen  v.  Davenport,  107  Iowa,  111,  77  N.  W.  532,  holding  contract  for 
street  improvement  for  definite  sum,  when  city  indebted  to  full  amount,  void; 
Cason  v.  Lebanon,  153  Ind.  575,  55  N.  E.  768,  holding  contract  for  city  im- 
provement not  indebtedness  of  city  within  constitutional  inhibition;  Wilcoxon 
v.  Bluffton,  153  Ind.  278,  54  N.  E.  110,  holding  school  building  bonds  part  of 
city  debt  to  be  included  in  aggregate  amount  of  indebtedness  relative  to  con- 
stitutional inhibition;  Kirsch  v.  Braun,  153  Ind.  257,  53  N.  E.  1082,  holding 
county  not  liable  on  gravel-road  bonds,  payable  only  out  of  assessments  on  prop- 
erty benefited,  not  negotiable;  Monroe  County  v.  Harrell,  147  Ind.  508,  46  N. 
E.  124,  holding  gravel-road  bonds  payable  out  of  assessments  on  benefited  prop- 


1385  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  681 

«rty  not  indebtedness  within  constitutional  inhibition;  Switzerland  County  v. 
Reeves,  148  Ind.  473,  46  X.  E.  995,  holding  bands  for  construction  of  gravel  roads 
not  debt  of  township,  and  thus  within  constitutional  inhibition;  New  Albany 
v.  McCulloch,  127  Ind.  505,  26  N.  E.  1074,  holding  municipal  corporation  not 
excused  from  repair  of  defective  sidewalk  because  indebted'  to  constitutional 
limit;  Heinl  v.  Terre  Haute,  161  Ind.  49,  66  N.  E.  450,  holding  debt  created  by 
school  city  not  part  of  indebtedness  of  civil  city,  where  created  without  author- 
ity of  latter;  Swanson  v.  Ottumwa,  118  Iowa,  174,  59  L.  R.  A.  625,  91  X.  \V. 
1048,  holding  that  contract  for  construction  of  waterworks  did  not  create  in- 
debtedness, within  meaning  of  Constitution;  McGilvery  v.  Lewiston,  13  Idaho, 
348,  90  Pac.  348;  Logansport  v.  Jordan,  171  Ind.  129,  37  L.R.A.  ( N.S. )  1040, 
85  N.  E.  959,  17  A.  &  E.  Ann.  Cas.  415, — holding  where  city  is  indebted  to  the 
limit,  an  indebtedness  created  under  contract  for  construction  of  sewer  creates 
no  further  debt  where  cost  of  sewer  upon  completion  increases  indebtedness  be- 
yond legal  limit;  Voss  v.  Waterloo  Water  Co.  163  Ind.  85,  66  L.R.A.  102,  106 
Am.  St.  Rep.  201,  71  N.  E.  208,  2  A.  &  E.  Ann.  Cas.  978,  holding  municipal  corpo- 
rations cannot  evade  restrictions  upon  power  to  become  indebted,  by  issuing 
bonds  payable  out  of  a  fund  raised  by  a  special  tax  and  collected  for  that  pur- 
pose only;  Windfall  v.  First  Nat.  Bank,  172  Ind.  690,  87  N.  E.  984;  Catlettsburg 
-v.  Self,  115  Ky.  679,  74  S.  W.  1064, — holding  no  debt  against  the  city  is  created 
by  issue  of  bonds  by  city  in  payment  for  street  improvements,  the  cost  of  which 
is  assessed  against  abutting  property  owners;  Broad  v.  Moscow,  15  Idaho,  622,  99 
Pac.  101,  on  liability  of  a  city  on  bonds  issued  for  sewerage  work. 

Cited  in  notes  (23  L.  R.  A.  402,  403,  406)  on  what  constitutes  "an  indebted- 
ness" within  meaning  of  constitutional  and  statutory  restrictions  of  municipal 
indebtedness;  (37  L.R.A.  (N.S.)  1059,  1073)  on  creation  of  indebtedness  within 
meaning  of  debt  limit  provisions;  (44  Am.  St.  Rep.  237,  239)  on  what  is  mu- 
nicipal indebtedness  within  prohibition  against. 

Distinguished  in  Austin  v.  Seattle,  2  Wash.  674,  27  Pac.  557,  holding  indebted- 
ness in  excess  of  constitutional  limit  requires  assent  of  voters  to  issuance  of 
bonds  for  local  improvements;  Winamac  v.  Huddleston,  132  Ind.  217,  31  X.  K. 
561,  holding  bonds  to  build  schoolhouse  in  amount  in  excess  of  bonding  limit, 
void;  Lobdell  v.  Chicago,  227  111.  243,  81  N.  E.  354,  holding  an  issue  of  street 
railway  certificates  creates  an  indebtedness  against  the  city  and  where  such 
indebtedness  increases  limit  beyond  that  authorized  by  the  statutes  it  is  illegal; 
State  ex  rel.  University  &  School  Lands  v.  McMillan,  12  N.  D.  312,  96  N.  W. 
310,  holding  where  holders  of  certificates  issued  by  city  would  have  a  right  to 
take  and  appropriate  a  pre-existing  income  of  city  for  payment  of  them,  and 
enforce  payment  by  sale  of  city  property  a  debt  is  created. 
Validity  of  local  Improvement  acts. 

Cited  in  Indianapolis  v.  Holt,  155  Ind.  253,  57  N.  E.  1100  (dissenting  opinion), 
majority  holding  local  improvement  act  with  opportunity  to  be  heard  and  to 
contest  if  right  is  not  waived,  valid;  Adams  v.  Shelbyville,  154  Ind.  487,  49 
L.  R.  A.  803.  77  Am.  St.  Rep.  484,  57  N.  E.  114,  holding  special  benefits  are  the 
only  foundation  for  special  assessments;  Adams  v.  Shelbyville,  154  Ind.  481,  49 
L.  R.  A.  803,  77  Am.  St.  Rep.  484,  57  N.  E.  114,  holding  new  law  relating  10 
street  improvements  presumably  intended  to  avoid  injustice  in  old  law;  Marion 
Bond  Co.  v.  Johnson,  29  Ind.  App.  297,  64  X.  E.  020,  upholding  right  of  property 
owner  to  contest  amount  of  improvement  assessment  on  question  of  special 
benefits. 
Waiver  of  irregularity  In  local  assessments. 

Cited  in  Cass  County  v.  Plotner,  149  Ind.  122,  48  N.  E.  635,  holding  property 
owner  acquiesces  in  public  improvement  when  he  stands  by  and  permits  con- 


7  L.R.A.  681]  L.  R.  A.  CASES  AS  AUTHORITIES.  138(T 

struction  to  go  on  without  objection;  Richcreek  v.  Moorman,  14  Ind.  App.  373,. 
42  N.  E.  943,  holding  lot  owner  by  signing  agreement  waiving  irregularities  of 
assessment  for  public  improvement  cannot  contest  validity;  Dunkirk  Land  Co.  v. 
Zehner,  35  Ind.  App.  698,  74  N.  E.  1099,  holding  invalidity  of  assessment  for 
nonconformity  to  statute  is  no  defense  to  one  who  has  agreed,  in  consideration 
of  right  to  pay  assessments  in  installments,  not  to  question  the  legality  of  the 
assessment;  Newport  v.  Si'lva,  143  Ky.  712,  137  S.  W.  546,  holding  that  land 
owner  is  not  estopped  from  contesting  payment  of  assessment  for  improvements 
unless  under  ordinance  he  so  agrees  in  writing  to  pay  in  installments  on  ten 
year  plan. 

Distinguished   in  Wayne  County  Sav.   Bank  v.   Gas   City  Land   Co.   156   Ind. 
663,  59  N.  E.  1048,  holding  property  owner  signing  waiver  of  irregularity  as  to- 
street  improvement  assessments,   personally  liable   for   deficit  after   sale  of  lots 
on  foreclosure  of  lien ;  Edward  C.  Jones  Co.  v.  Perry,  26  Ind.  App.  559,  57  N. . 
E.   583,   holding  waiver   of   irregularity   of   assessment   for   street   improvement 
renders  lot  owner  personally  responsible  for  assessment. 
Lien  for  public  improvements. 

Cited  in   Dowell  v.   Talbot  Paving  Co.    138   Ind.   682,   38   N.   E.   389,   holding 
lien  given  city  on  property  benefited  by  improvement  is  to  enable  it  to  collect 
money  which  it  may  have  to  advance. 
Liability  for  public  indebtedness. 

Cited  in  Walker  v.  Monroe  County,  11  Ind.  App.  286,  38  N.  E.  1095,  holding 
gravel-road  bondholder  has  no  right  of  action  against  county;  City  of  Hunting- 
ton  v.  Force,  152  Ind.  370,  53  N.  E.  443,  holding  city  not  liable  for  work  done 
on  sewers  until  it  has  issued  bonds  therefor  and  realized  from  property  bene- 
fited; Robinson  v.  Valparaiso,  136  Ind.  621,  36  N.  E.  644,  holding  suit  by  tax- 
payer to  enjoin  city  from  accepting  sewer  system  will  not  lie,  since  work  to  be 
paid  for  by  assessments  on  property  benefited;  German-American  Sav.  Bank 
v.  Spokane,  17  Wash.  332,  38  L.  R.  A.  264,  49  Pac.  542.  holding  action  cannot 
be  brought  against  city  to  enforce  street  grade  warrants  until  assessments  for 
collecting  them  enforced. 

Distinguished  in  Terre  Haute  v.  Blake.  9  Ind.  App.  408,  36  N.  E.  932,  holding 
acceptance  by  city  of  report  of  commissioners  for  taking  land  for  streets  ren- 
ders it  liable  for  damages  in  excess  of  benefits. 
Reassessment  for  local  improvements. 

Cited  in  Goodwin  v.  Warren  County,  146  Ind.  168,  44  N.  E.  1110,  holding  ad- 
ditional   cost   in   construction   of   public   improvement    may   be   reassessed   upoR 
benefited   lands. 
Relation  of  debtor  and  creditor. 

Cited  in  Keegan  v.  Hamilton  Nat.  Bank,  163  Ind.  227,  71  N.  E.  647.  holding 
fact  that  money  secured  as  loan  by  makers  of  notes  is  turned  over  to  a  third 
party  does  not  create  relation  of  debtor  and  creditor  between  such  third  party  and 
one  making  the  loan. 

7  L.  R.  A.  684,  KNOX  COUNTY  v.  JOHNSON,  124  Ind.   145,  19  Am.  St.  Rep.. 

88,  24  N.  E.   148. 
Mandamus   to   compel   official   action,   -when   issnable. 

Cited  in  Anniston  v.  Davis,  98  Ala.  634,  39  Am.  St.  Rep.  94,  13  So.  331,  hold- 
ing mandamus  lies  to  compel  restoration  of  deposed  councilman :    State  ex  rel. . 
Dunkleberg  v.   Porter,   134  Ind.   67,   32   N.   E.    1021,  holding  mandamus   lies   to 
compel   issuance  by  township  trustee  of  certificate  of  exemption   from   highway- 
labor. 


1387  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  687 

Cited  in  note  (125  Am.  St.  Rep.  502)   on  duties,  performance  of  which  may  be 
compelled  by  mandamus. 
Effect   of   failnre   of   public   officer   to   qualify   within   required    time. 

Followed  in  State  ex  rel.  Taylor  v.  Warrick  County,  124  Ind.  556,  8  L.  R.  A. 
607,  25  N.  E.  10,  requiring  recognition  of  county  superintendent  legally  elected 
and  qualified,  until  ousted  by  proper  proceeding. 

Cited  in  Minnick  v.  State,  154  Ind.  390,  56  X.  E.  851,  and  Albaugh  v.  State, 
145  Ind.  358,  44  N.  E.  355,  holding  failure  to  file  bond  within  time  required  does 
not  work  forfeiture  of  office;  Minnick  v.  State,  154  Ind.  391,  56  N.  E.  851,  hold- 
ing delay  to  qualify,  and  legal  election  of  another,  works  forfeiture  of  right  to 
public  office. 

Cited  in  notes  (16  L.R.A.  140)  on  vacancy  in  office  by  failure  to  file  bond 
within  time  prescribed;  (90  Am.  St.  Rep.  190)  on  failure  to  file  official  bond  in 
time  as  not  relieving  sureties. 

Criticized  in  State  ex  rel.  Berge  v.  Lansing,  46  Neb.  525,  35  L.  R.  A.  128,  64 
X.   \V.   1104    (dissenting  opinion),  majority  holding  act  providing  failure  to  file 
bond  within  time  limited  vacates  office,  self-executing. 
Removal   of  public  officers;   right   to  hearing. 

Cited  in  People  ex  rel.  Murphy  v.  McAllister,  10  Utah,  375,  37  Pac.  578,  hold- 
ing power  to  remove  public  officer  not  exereisabie  without  opportunity  for 
hearing.  v 

Cited  in  note  (68  Am.  St.  Rep.  112)  on  removal  of  officers. 
Appointment   to   nonvacant   public   office   invalid. 

Cited  in  State  ex  rel.  Worrell  v.  Peelle,  124  Ind.  535,  8  L.  R.  A.  236,  24  N.  E. 
440    (dissenting  opinion),  majority  holding  appointment  to  office   in  possession 
of   legal   incumbent   subsequently   surrendering   it   to   appointee,   invalid. 
Judicial  power  in  ousting  officer. 

Cited  in  State  ex  rel.  Lee  v.  Chaney,  23  Okla.  797,  102  Pac.  133,  holding  an  act 
investing  the  city  council  with  judicial  powers  is  repugnant  to  the  organic  act 
lodging  such  power  in  the  courts. 

7  L.  R.  A.  687,  PENNSYLVANIA  CO.  v.  MARIEN,   123  Ind.  415,  18  Am.  St. 

Rep.  330,  23  N.  E.  973. 
Duty   to   passenger*. 

Cited  in  Girton  v.  Lehigh  Valley  R.  Co.  17  Pa.  Super.  Ct.  150;  Illinois  C. 
R.  Co.  v.  Cheek,  152  Ind.  670,  53  N.  E.  641;  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  ^Yin- 
gate,  143  Ind.  131,  37  N.  E.  274;  Ohio  &  M.  R.  Co.  v.  Stansberry,  132  Ind.  536, 
:J2  X.  E.  218,  —  holding  railroad  under  obligation  to  provide  for  safe  entry  and 
exit  of  passengers,  including  depots,  platforms,  and  approaches;  Xew  York,  C. 
&  St.  L.  R.  Co.  v.  Mushrush,  11  Ind.  App.  195,  37  N.  E.  954,  and  Indianapolis 
Street  R.  Co.  v.  Robinson,  157  Ind.  420,  61  N.  E.  936,  holding  railroad  liable  for 
injuries  from  neglect  to  keep  depot  platform  in  reasonably  safe  condition  for  pas- 
sengers and  others  rightfully  using  same;  Hammond,  W.  &  E.  C.  Electric  R.  Co. 
v.  Spyzchalski,  17  Ind.  App.  12,  46  N.  E.  47,  holding  carrier  required  to  exer- 
cise highest  degree  of  care  in  transportation  of  passenger;  Prothero  v.  Citizens' 
Street  R.  Co.  134  Ind.  440,  33  X.  K.  7ii.~>,  holding  when  danger  constantly  appar- 
ent, carrier  of  passengers  required  to  exercise  highest  degree  of  care,  vigilance, 
and  skill;  Knauss  v.  Lake  Erie  &  W.  R.  Co.  29  Ind.  App.  219,  64  X.  E.  95, 
holding  carrier  liable  for  injury  to  passenger  resulting  from  its  negligence,  un- 
less passenger  was  guilty  of  contributory  negligence;  Harris  v.  Pittsburgh,  C. 
C.  &  St.  L.  R.  Co.  32  Ind.  App.  602,  70  X.  K.  407.  holding  it  the  duty  of  the 
common  carrier  to  provide  a  safe  place  for  its  passengers  to  alight. 


7L.R.A.  687]  L.  R.  A.  CASES  AS  AUTHORITIES.  1388 

Cited  in  footnotes  to  Herrman  v.  Great  Northern  R.  Co.  57  L.  R.  A.  390,  which 
holds  railroad  company  liable  for  injury  to  passenger  from  unsafe  condition  of 
depot  premises  leased  of  union  depot  company  or  its  receiver;  Delaware,  L.  & 
W.  R.  Co.  v.  Trautwein,  7  L.  R.  A.  435,  which  holds  carier  required  to  keep  pas- 
sageway at  station,  though  other  passageway  provided;  Redigan  v.  Boston  & 
M.  R.  Co.  14  L.  R.  A.  276,  which  denies  recovery  to  licensee  falling  through  open 
trap  door  in  station  platform. 

Cited  in  notes  (8  L.  R.  A.  673;  11  L.  R.  A.  720)  on  duty  of  carrier  to  use 
care  for  safety  of  passengers  in  general;  (20  L.  R.  A.  520)  on  measure  of  care 
carrier  must  exercise  to  keep  platforms  and  approaches  safe;  (16  L.  R.  A.  593) 
on  duty  of  carrier  to  maintain  safe  approaches  beyond  premises;  (33  L.R.A. 
(X.S.)  857)  on  degree  of  care  toward  passenger  at  station. 
Assumption  that  carrier  will  perform  duty. 

Cited  in  Kentucky  &  I.  Bridge  Co.  v.  McKinney,  9  Ind.  App.  217,  36  X.  E.  448, 
holding  passenger  entitled  to  assume  approaches,  platform,  and  means  of  enter- 
ing cars  are  in  reasonably  safe  condition;  Citizens'  Street  R.  Co.  v.  Merl,  26 
Ind.  App.  291,  59  N.  E.  491,  holding  passenger  boarding  street  railway  car  en- 
titled to  rely  upon  opportunity  being  given  to  enter  safely,  or  of  being  notified 
Of  apparent  danger;  Citizens'  Street  R.  Co.  v.  Merl,  134  Ind.  611,  33  N.  E.  1014, 
holding  passenger  boarding  wrong  car  entitled  to  rely  upon  opportunity  to  make 
change  in  safety,  or  of  being  notified  by  employees  of  danger  foreseen  by  them. 
Contributory  negligence  in  getting-  on  or  off  train. 

Cited  in  Carr  v.  Eel  River  &  E.  R.  Co.  98  Cal.  374,  21  L.  R.  A.  365,  33  Pac. 
213;  Louisville,  E.  &  St.  L.  Consol.  R.  Co.  v.  Bean,  9  Ind.  App.  243,  36  N.  E. 
443;  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Gray,  28  Ind.  App.  592,  64  N.  E.  39,— 
holding  passenger  attempting  to  alight  from  slowly  moving  train  not  necessar- 
ily negligent;  Kentucky  &  I.  Bridge  Co.  v.  McKinney,  9  Ind.  App.  222,  36  X.  K. 
448,  holding  whether  person  alighting  from  moving  train  guilty  of  negligence 
is  question  for  jury;  Cincinnati,  H.  &  I.  R.  Co.  v.  Revalee,  17  Ind.  App.  665, 
46  X*.  E.  352,  holding  woman  passenger  attempting  to  alight  from  slowly  mov- 
ing train,  and  thrown  by  sudden  jolt  without  warning,  not  negligent  as  matter 
of  law;  Indiana  Union  Traction  Co.  v.  Jacobs,  167  Ind.  90,  78  X.  K  :\-27>. 
holding  question  of  contributory  negligence  in  alighting  in  dark  and  unassisted 
from  car  at  a  defective  place,  for  the  jury,  though  passenger  had  imperfect 
knowledge  of  nature  of  the  place;  Lake  Erie  &  W.  R.  Co.  v.  Cotton.  45  Ind. 
App.  585,  91  X".  E.  253,  holding  that  whether  passenger  was  negligent  in  at- 
tempting to  alight  while  train  was  running  slowly  while  nearing  station  was 
question  for  jury;  Houston,  E.  &  W.  T.  R.  Co.  v.  McCarty,  40  IVx.  Civ.  App. 
369,  89  S.  W.  805,  holding  charge  that  man  of  ordinary  care  should  use  more 
care  and  caution  in  walking  upon  a  platform  with  holes  in  it  or  rotten  planks, 
than  one  free  from  these  defects  was  proper. 

Cited  in  note  (21  L.  R.  A.  358)  on  injuries  in  getting  on  and  off  trains. 
"Witness?    privileged   communications. 

Cited  in  Gurley  v.  Park,  135  Ind.  442.  35  XT.  E.  279,  holding  physician  attend- 
ing testatrix  during  last  illness  not  competent  to  testify  from  what  he  "saw  and 
heard"  as  to  patient's  soundness  of  mind;  Post  v.  State,  14  Ind.  App.  455,  42 
N.  E.  1120,  holding  physician  incompetent  to  testify  as  to  facts  communicated 
to  or  observed  by,  him,  in  his  professional  capacity;  Kern  v.  Kern,  154  Ind. 
34,  55  N.  E.  1004,  holding  communications  between  testator  and  attorney  in 
reference  to  will,  not  privileged  after  death  of  testator,  where  both  litigants  claim 
under  him;  New  York,  C.  &  St.  L.  R.  Co.  v.  Mushrush,  11  Ind.  App.  197,  .37  X. 
E.  954,  holding  physician  not  permitted  to  reveal  facts  coming  to  his  knowl- 


1389  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  701 

edge  while  attending  injured  person,  although  employed  and  paid  by  person 
causing  injury;  .£tna  L.  Ins.  Co.  v.  Deming,  123  Ind.  391,  24  N.  E.  86,  holding 
taking  of  deposition  of  physician  to  break  force  of  deposition  of  same  witness 
previously  taken  by  opposite  party  not  waiver  of  objection  to  witness  as  incompe- 
tent; Brackney  v.  Fogle,  156  Ind.  538,  60  N.  E.  303,  holding  failure  to  call  at- 
tending physician  to  testify  to  soundness  of  mind  of  testatrix  cannot  be  com- 
mented on  by  counsel  nor  considered  by  jury;  City  of  Warsaw  v.  Fisher,  24  Ind. 
App.  53,  55  X.  E.  42  (dissenting  opinion),  majority  holding  defendant's  counsel 
in  action  for  personal  injury  may  comment  on  omission  of  plaintiff  to  call 
physician  attending  him;  Battis  v.  Chicago  R.  I.  &  P.  R.  Co.  124  Iowa,  630,  100 
X.  W.  543,  holding  communications  by  patient  to  his  physician  are  privileged 
and  cannot  be  shown  even  for  impeachment  purposes;  Madsen  v.  Utah  Light 

6  R.  Co.  36  Utah,  539,  105  Pac.  799,  to  the  point  that  when  relation  of  patient 
and   physician    is   conceded   everything  which   has   any   relation   to   accident   or 
injury  comes  within  statute  governing  privileged  communications. 

Cited  in  note   (24  Am.  St.  Rep.  752)   on  evidence  of  statements  to  physicians. 

Distinguished  in  Smith  v.  Roper  Lumber  Co.  147  X.  C.  66,  125  Am.  St.  Rep. 
535,  60  S.  E.  717,  15  A.  &  E.  Ann.  Cas.  580,  holding  statement  to  attending 
physician  that  he  was  acting  in  a  certain  manner  when  engine  crushed  his  arm 
was  admissible  in  evidence  where  it  was  shown  defendant's  arm  was  crushed 
by  the  engine. 
Contradiction  of  -witness  by  previous  testintony. 

Cited  in  note  (82  Am.  St.  Rep.  48)  on  contradiction  of  witness  by  previous 
testimony. 

7  L.  R.  A.  693,  TODD  v.  OVIATT,  58  Conn.  174,  20  Atl.  440. 
Rights   of   surviving:   husband   or   wife    in   other's    real    estate. 

Cited  in  Ward  v.  Ives,  75  Conn.  601,  54  Atl.  730,  denying  existence  of  curtesy 
in  lands  of  which  wife  has  only  an  estate  in  remainder  expectant  upon  life  estate 
in  another,  which  did  not  terminate  during  coverture. 

Cited  in  notes  (11  L.R.A.  826)  on  tenancy  by  the  curtesy  in  wife's  estate; 
(112  Am.  St.  Rep.  580,  589;  128  Am.  St.  Rep.  475,  477,  485)  on  nature  and 
existence  of  estates  of  tenancy  by  the  curtesy. 

Distinguished  in  Greene  v.  Huntington,  73  Conn.  113,  46  Atl.  883,  holding  stat- 
ute giving  widow  dower  in  real  estate  of  which  husband  died  "possessed,"  in- 
cludes equitable  remainders  in  fee,  although  possession  held  in  trust. 

7   L.   R.   A.   701,   OHIO   SOUTHERX  R.   CO.   v.   MOREY,   47   Ohio   St.   207,   24 
X.  E.  269. 

Followed  without  discussion  in  Central  Ohio  Xatural  Gas  &  Fuel  Co.  v.  Gallo- 
way. 29  Ohio  L.  J.  152. 
Actions;    jurisdiction   of   person. 

Cited  in  Kinsey  v.  Burgess  Steel  &  Iron  Works,  4  Ohio  X.  P.  294,  holding  cor- 
poration organized  within  state  cannot  be  sued  in  county  where  its  agents  are 
temporarily  transacting  business,  but  in  which  it  has  no  permanent  office  or 
agency;  Long  v.  Xewhouse,  57  Ohio  St.  370,  49  X.  E.  79,  holding  want  of  juris- 
diction of  person  of  defendant  cannot  be  raised  in  answer  after  repeated  motions 
attacking  complaint;  American  Mut.  L.  Ins.  Co.  v.  Mason,  159  Ind.  20,  64  N.  E. 
525.  holding  filing  of  answer  to  the  merits,  waiver  of  objections  to  jurisdiction  of 
the  person. 
l.iiil>ilit  >  for  acts  of  independent  contractor. 

Cited  in  Fisher  v.  Tryon,  15  Ohio  C.  C.  557,  holding  liability  of  owner  for  neg- 
ligence of  independent  contractor  depends  on  whether  injury  reasonably  antici- 


7  L.R.A.  701]  L.  E.  A.  CASES  AS  AUTHORITIES.  1390 

pated,  if  proper  care  not  used;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Shields,  47  Ohio 
St.  393,  8  L.  R.  A.  466,  21  Am.  St.  Rep.  840,  24  N.  E.  658,  holding  inability  of 
master  to  shift  responsibility  for  acts  of  servants  rests  on  principle  holding 
owner  liable  for  negligence  of  independent  contractor;  Steinbock  v.  Covington 
&  C.  Bridge  Co.  4  Ohio  N.  P.  230;  Covington  &  C.  Co.  v.  Patrick,  5  Ohio  N.  P. 
375,  and  Covington  &  C.  Bridge  Co.  v.  Steinbrock,  61  Ohio  St.  228,  76  Am.  St. 
Rep.  375,  55  N.  E.  618,  holding  legal  duty  of  owner  causing  burned  wall  to  be 
removed,  to  have  work  protected,  cannot  be  delegated;  Wertheimer  v.  Saunders, 
95  Wis.  579,  37  L.R.A.  148,  70  N.  W.  824,  holding  landlord  putting  on  new 
roof  at  tenant's  request  bound  to  due  care  for  protection  against  elements; 
Bonaparte  v.  Wiseman,  89  Md.  21,  44  L.  R.  A.  484,  42  Atl.  918,  holding  owner 
liable  for  damages  to  adjacent  premises  from  negligence  of  contractor  making 
excavation  for  building;  Cameron  v.  Oberlin,  19  Ind.  App.  147,  48  N.  E.  386, 
holding  owner  employing  person  to  clear  land  liable  for  damage  from  his  negli- 
gence in  permitting  fire  to  escape  to  adjacent  premises;  Thompson  v.  Lowell, 
L.  &  H.  Street  R.  Co.  170  Mass.  582,  40  L.  R.  A.  347,  64  Am.  St.  Rep.  323,  49 
N.  E.  913,  holding  exhibition  provided  by  independent  contractor  will  not  relieve 
employer  from  responsibility,  if  of  nature  likely  to  cause  injury,  unless  guarded 
against;  Jacobs  v.  Fuller  &  H.  Co.  67  Ohio  St.  70,  ,65  N.  E.  617,  holding  master 
liable  for  injury  to  inexperienced  employee  put  to  work  on  dangerous  machine 
without  instructions,  though  employed  by  foreman;  Davis  v.  Summerfield,  133  X. 
C.  329,  63  L.R.A.  496,  45  S.  E. -654,  holding  that  owner  cannot  escape  liability 
for  injury  to  neighbor's  building  through  excavation,  by  letting  work  to  inde- 
pendent contractor;  Reilly  v.  Chicago  &  X.  W.  R.  Co.  122  Iowa,  528,  98  X.  W. 
464,  holding  railroad  company  not  liable  for  injury  to  employee  of  independent 
contractor  due  to  latter's  negligence;  Hunter  v.  Southern  R.  Co.  152  X.  C.  688, 
29  L.R.A. (X.S.)  851,  68  S.  E.  237,  holding  proprietor  liable  for  injuries  caused 
by  blasting,  though  work  is  done  by  an  independent  contractor,  where  he  knew 
of  danger  to  nearby  residents  and  made  use  of  such  contractor  to  relieve  himself 
of  liability;  Hollis  v.  Kansas  City  M.  Retail  Merchants'  Asso.  205  Mo.  519,  14 
L.R.A.  (N.S.)  288,  103  S.  W.  32,  holding  a  merchants'  association  liable  for  in- 
juries resulting  from  exhibition  conducted  by  an  independent  contractor  where 
it  was  of  such  a  kind  that  it  would  probably  cause  injury  to  a  spectator: 
Bernheimer  Bros.  v.  Eager,  108  Md.  562,  129  Am.  St.  Rep.  458,  70  Atl.  91. 
holding  duty  of  master  to  furnish  employees  a  safe  place  to  work  cannot  be 
delegated  to  an  independent  contractor;  St.  Louis  &  S.  F.  R.  Co.  v.  Madden. 

77  Kan,  88,  17  L.R.A. (X.S.)    793,  93  Pac.  586,  holding  railroad  company  liable 
for  injuries  caused  by  burning  fire  guards  by  one  under   independent  contract 
to  do  the  work;  Cameron  Mill  &  Elev.  Co.  v.  Anderson,  34  Tex.  Civ.  App.  109, 

78  S.  W.  8,  holding  where  injuries  result  directly  from  very  thing  the  city  au- 
thorized the  doing  of  the  licensee  is  liable  though  work   is  performed  by  inde- 
pendent contractor;   Engler  v.   Seattle,  40  Wash.  76,   82  Pac.   136,  holding  city 
•is  not  liable  for  injuries  resulting  to  workman  in  obeying  orders  of  city  engineer 
where   work   was   being  done  under   contract  with   independent  contractor   who 
selected  the  men   and   controlled   manner   of  work;    Honnemeyer  v.   Fischer,   27 
Ohio  C.  C.  9,  17   Ohio  C.  D.  9,  2  Ohio  L.  Rep.  402,  holding  that  the  injury  to 
furniture  in  a  dwelling  house  resulting  from  replacing  the  old  roof  with  a  new 
one,  is  one  that  might  be  anticipated  as  a  probable  consequence  and  the  doctrine 
that  the   independent  contractor  alone   is  liable,  does  not  apply;    Coney  Island 
Co.  v.  Mitsch,  3  Ohio  N.  P.  n.  s.  83,  15  Ohio  S.  &  C.  P.  Dec.  657,  holding  that 
the  operation  of  a  "pony  track"  at  a  summer  resort  was  pre-eminently  a  dan- 
gerous  work   and   the   liability   of   the   owner   was   not   affected   because   it   was 
operated  by  an  independent  contractor;  Covington  £  C.  Bridge  Co.  v.  Steinbrook, 


1391  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  701 

61  Ohio  St.  228,  76  Am.  St.  Rep.  375,  55  N.  E.  618,  Affirming  4  X.  P.  229,  6 
Low.  D.  330,  and  5  X.  P.  374,  7  Low.  D.  401,  holding  that  the  owner  of  the 
premises  was  liable  for  injuries  because  of  the  falling  of  dangerous  walls  after 
a  fire  although  art  independent  contractor  was  engaged  in  removing  them  at 
the  time;  Pittsburg,  C.  &  St.  L.  R.  Ce.  v.  Shields,  47  Ohio  St.  387,  8  L.R.A. 
464,  21  Am.  vSt.  Rep.  840,  24  X.  E.  658,  holding  by  analogy,  that  a  master 
could  not  shift  the  responsibility  connected  with  the  custody  of  dangerous  in- 
struments to  his  servants  entrusted  with  their  use. 

Cited  in  notes  (14  L.R.A.  828)  on  exceptions  to  rule  that  employer  not  liable 
for  act  of  independent  contractor;  (65  L.R.A.  744,  753)  on  liability  for  acts 
of  independent  contractor  where  injury  is  direct  result  of  work  contracted  for; 
(65  L.R.A.  835,  847)  on  liability  for  injuries  caused  by  performance  of  work 
by  independent  contractor  which  is  dangerous  unless  certain  precautions  are 
observed;  (66  L.R.A.  121)  on  liability  for  acts  of  independent  contractor  where 
injuries  result  from  nonperformance  of  absolute  duties  of  employer;  (76  Am. 
St.  Rep.  385,  388,  403)  on  liability  for  negligence  and  torts  of  independent 
contractors. 

Distinguished  in  Leavitt  v.  Bangor  &  A.  R.  Co.  89  Me.  519,  36  L.  R.  A.  384, 
36  Atl.  998,  holding  railroad  employing  person  to  clear  timber  from  right  of 
way,  and  furnishing  cooking  car,  not  liable  for  damage  from  fire  set  by  cooking 
car;  Clark  v.  Xorthern  P.  R.  Co.  59  L.R.A.  512,  holding  railroad  permitting 
circus  to  exhibit  on  land  adjoining  switch  yard,  not  chargeable  with  duty  of 
exercising  care  to  protect  public  from  dangers  incident  to  crossing  yard:  Lytle 
v.  Conover  Bldg.  Co.  12  Ohio  S.  &  C.  P.  Dec.  351,  holding  that  the  abutting 
owner  was  not  liable  for  injuries  to  a  pedestrian  by  the  negligence  of  a  servant 
of  the  independent  contractor  engaged  in  constructing  a  building  on  the  land, 
such  construction  not  being  inherently  dangerous. 
"Work;  in  or  about  streets  and  highways. 

Cited  in  Hawver  v.  Whalen,  49  Ohio  St.  80,  14  L.R.A.  835,  29  X.  E.  1049, 
holding  person  excavating  near  to  sidewalk  cannot  shift  duty  to  guard  it  by 
letting  work  to  contractor;  Reuben  v.  Swigart,  15  Ohio  C.  C.  577,  holding  owner 
not  relieved  from  liability  for  contractor  depositing  building  material  in  street, 
under  permission  granted  owner  on  condition  that  same  be  guarded  and  lighted; 
Gable  v.  Toledo,  16  Ohio  C.  C.  524,  holding  city  liable  for  injury  from  falling 
into  unguarded  excavation  in  street,  made  by  its  authority,  although  work  done 
by  independent  contractor;  Morris  v.  Woodburn,  57  Ohio  St.  335,  48  X.  E.  1097, 
holding  owner  constructing  vault  under  sidewalk  liable  for  injury  arising  from 
defective  covering  during  construction;  Strong  v.  Pickering  Hardware  Co.  9 
Ohio  C.  C.  252,  6  Ohio  C.  D.  212,  questioning  whether  owner  liable  for  injury 
to  person  falling  over  board  put  across  sidewalk  during  building  repair  by  inde- 
pendent contractors;  Haflf  v.  Shockley,  122  Iowa,  728,  64  L.R.A.  542,  101  Am. 
St.  Rep.  289,  98  X.  W.  573,  holding  owner  not  liable  for  contractor's  failure  to 
barricade  sand  in  street;  McHarge  v.  Xewcomer,  117  Tenn.  616,  9  L.R.A.(X.S.) 
298,  100  S.  W.  700,  holding  proprietor  of  store  on  populous  street  liable  for 
injuries  resulting  from  tools  or  material  falling  while  repairs  on  awning  are 
being  made  by  independent  contractor:  O'Hara  v.  Laclede  Gaslight  Co.  131  Mo. 
App.  452,  110  S.  W.  642,  holding  where  public  way  is,  under  a  license,  occupied 
for  a  private  use,  the  duty  rests  upon  the  employer  to  keep  it  reasonably  safe, 
though  breach  is  committed  by  an  independent  contractor;  Central  Union  Teleph. 
Co.  v.  Conneaut,  93  C.  C.  A.  191,  167  Fed.  280,  on  liability  of  city  for  defective 
street  due  to  authorized  act  by  third  party;  Strong  v.  Pickering  Hardware  Co. 
9  Ohio  C.  C.  252,  6  Ohio  C.  D.  213,  on  the  liability  of  the  abutting  owner  for 
dangerous  condition  of  street  because  of  acts  of  independent  contractor;  Reuben 


7  L.E.A.  701]  L.  R.  A.  CASES  AS  AUTHORITIES.  1392 

v.  Swigart,  15  Ohio  C.  C.  577,  7  Ohio  C.  D.  645,  holding  that  where  the  dan- 
gerous condition  of  the  street  is  the  probable  consequence  of  the  work,  the  fact 
that  it  is  being  done  by  an  independent  contractor  does  not  release  the  owner 
from  liability;  Fisher  v.  Tryon,  15  Ohio  C.  C.  557,  8  Ohio  C.  D.  505,  sustaining 
charge  to  the  effect  that  if  the  dangerous  character  of  the  work  done  in  the 
street  could  have  been  anticipated  the  abutting  owner  was  liable  although  he 
employed  an  independent  contractor  to  do  the  work:  Anderson  v.  Feutsch,  31 
Nev.  505,  103  Pac.  1013,  holding  the  abutting  property  owner  liable  for  excava- 
tion in  the  street  in  front  of  his  premises  though  made  by  an  independent  con- 
tractor for  the  owner;  Hawver  v.  Whalen,  49  Oliio  St.  69,  14  L.R.A.  828,  29 
N.  E.  1049,  holding  abutting  owner  liable  for  injuries  by  falling  into  area  exca- 
vated into  street  though  an  independent  contractor  was  engaged  to  construct 
the  area  walls. 

Distinguished  in  Independence  v.  Slack,  134  Mo.  76,  34  S.  W.  1094,  holding 
owner  not  liable  to  person  who  fell  over  stone  left  in  street  by  sidewalk  con- 
tractor; Columbus  v.  Penrod,  73  Ohio  St.  215,  3  L.R.A.  (N.S.)  389,  112  Am. 
St.  Rep.  716,  76  N.  E.  826,  holding  city  not  liable  for  damages  due  to  granting 
permit  to  use  streets  for  placing  building  material  under  its  ordinance  or  in 
neglecting  to  enforce  provisions  of  ordinance. 
Liability  for  dangerous  condition  of  street  generally. 

Cited  in  Gable  v.  Toledo   (City)    16  Ohio  C.  C.  523,  9  Ohio  C.  D.  68,  holding 
city  liable   for  dangerous  excavation  in  the   street  causing   injury  because  left 
unguarded  where  the  city  authorized  the  excavation. 
—  Of  abutting  property  owner. 

Followed  in  Landis  v.  Drake  County,  32  Ohio  L.  J.  316,  on  the  liability  of 
owner  of  premises  for  injury  to  passerby  because  of  open  area  in  street. 

Cited  in  First  Nat.  Bank\.  Gillen,  7  Ohio  C.  C.  N.  S.  37,  27  Ohio  C.  C.  613,. 
on  the  liability  of  the  abutting  owner  for  an  injury  by  reason  of  defective  con- 
dition of  street  in  front  of  his  property  caused  by  his  own  acts;  Morris  v. 
Woodburn,  57  Ohio  St.  330,  48  N.  E.  1097,  holding  abutting  owner  liable  for 
injuries  by  reason  of  defective  cover  on  vault  constructed  by  him  under  sidewalk 
in  front  of  his  premises. 
Injury  to  trespassers. 

Distinguished  in  Clark  v.  Northern  P.  R.  Co.  29  Wash.  147,  59  L.  R.  A.  508, 
69  Pac.  636,  holding  railroad  company  not  liable  for  injury  to  minor  crossing, 
tracks,  as  short  cut  to  circus  on  company's  grounds. 
Joint  tort  liability. 

Cited  in  Graves  v.  City  &  Suburban  Teleg.  Asso.  132  Fed.  388,  2  Ohio  L.  Rep. 
15,  holding  where  negligence  of  traction  company  and  telephone  company  con- 
cur  in  producing  an  injury,  though  acting  independently,  they  are  joint   tort- 
feasors. 
Venue  of  action  against  a  corporation. 

Cited   in  Kinsey  v.   Burgess  Steel  &  Iron  Works,  4  Ohio  N.   P.  293,   6  Ohio. 
S.   &   C.   P.   Dec.   446,   holding   that   an   action   against   a   corporation   must   be 
brought  in  the  county  in  which  the  corporation  is  situated  or  has  its  principal 
place  of  business  or  in  which  an  office  or  agency  established. 
Railroad  company. 

Cited  in  Northern  P.  R.  Co.  v.  Baum,  7  Ohio  N.  P.  N.  S.  270,  19  Ohio  S.  & 
C.  P.  Dec.  818,  holding  that  a  justice  of  the  peace  had  jurisdiction  of  an  action 
of  attachment  against  a  railroad  company  though  no  part  of  the  railroad  ran 
through  the  county  nor  the  president  lived  therein,  if  there  was  property  of  the 
company  in  the  county,  which  had  been  attached:  Johnson  v.  Toledo  &  0.  C... 


1393  L.  R.  A.  CASES  AS  AUTHORITIES.  7  L.R.A.  705 

R.  Co.  5  Ohio  X.  P.  N.  S.  352,  18  Ohio  S.  &  C.  P.  Dec.  251,  holding  that  an 
action  against  a  railroad  company  must  be  brought  in  a  county  through  which 
the  road  passes. 

7  L.  R.  A.  705,  SNODDY  v.  AMERICAN  NAT.  BANK,  88  Tenn.  573,  17  Am.  St. 

Rep.  919,  13  S.  W.  127. 
Validity   of   negotiable   paper   sriv«-n   for   illegal   consideration. 

Cited  in  Irwin  v.  Marquett,  26  Ind.  App.  393,  84  Am.  St.  Rep.  297,  59  N.  E.  38, 
holding  check  given  in  payment  of  bet  made  at  cards  void  under  statute  in  hands 
of  bona  fide  holder;  Citizens'  State  Bank  v.  Xore,  67  Xeb.  71,  60  L.R.A.  738,  93 
X.  W.  160,  2  Ann.  Cas.  604,  holding  note  for  medical  services  by  unlicensed  prac- 
titioner valid  in  hands  of  bona  fide  holder. 

Cited  in  footnotes  to  Drinkall  v.  Movius  State  Bank,  57  L.  R.  A.  341,  which 
holds  title  to  cashier's  check  acquired  by  payee's  indorsement  to  gambler  in 
payment  for  chips  to  be  used  in  gambling,  defective;  Ullman  v.  St.  Louis  Fair 
Asso.  56  L.  R.  A.  606,  which  denies  right  to  abandon  partly  executed  illegal 
bookmaking  contract  for  specified  period,  and  recover  back  •pro  rata  amount  of 
money  paid;  Fuller  v.  Berger,  65  L.R.A.  381,  which  holds  that  equity  will  not 
refuse  relief  against  infringement  of  patent  because  owner  has  devoted  it  wholly 
to  an  immoral  use. 

Cited  in  notes  (16  L.R.A.  46)  on  rights  of  bona  fide  purchaser  of  note  declared 
void  by  statute;  (7  L.R.A. (X.S.)  468)  on  secret  bonus  to  officer  or  director  as 
affecting  right  to  enforce  contract  against  corporation. 

Distinguished  in  Bohon  v.  Brown,  101  Ky.  362,  38  L.  R.  A.  505,  72  Am.  St. 
Rep.  420,  41  S.  W.  273,  holding  under  statute  requiring  note  taken  fo^  patent 
right  to  have  words  "Peddler's  note"  written  across  face,  note  given  for  patent 
right,  without  such  indorsement,  not  void  in  hands  of  innocent  purchaser,  where 
it  does  not  appear  sale  was  by  peddler;  Jefferson  Bank  v.  Chapman-White 
Lyons  Co.  122  Tenn.  423,  123  S.  W.  641,  holding  that  corporation  note  for  stock 
in  another  corporation  in  ultra  vires  and  uncollectable  by  payee;  Arnd  v.  Sjoblom, 
131  Wis.  643,  10  L.R.A.  (X.S.)  843,  111  N.  W.  666,  11  A.  &  E.  Ann.  Cas.  1179, 
holding  a  note,  taken  in  violation  of  the  statute  but  such  fact  not  appearing 
on  its  face,  is  enforceable  in  hands  of  innocent  holder  for  value. 

Disapproved  in  Union  Trust  Co.  v.  Preston  Xat.  Bank,  136  Mich.  464,  112 
Am.  St.  Rep.  370,  99  X.  W.  399,  4  A.  &  E.  Ann.  Cas.  347,  holding  fact  that 
law  makes  it  a  crime  for  a  bank  to  certify  a  check  when  no  funds  are  available 
to  satisfy  it,  does  not  render  the  check  invalid  in  hands  of  a  bona  fide  holder 
for  value. 
Invalidity  of  gaming-  contracts. 

Cited  in  footnotes  to  Appleton  v.  Maxwell,  55  L.  R,  A.  93,  which  denies  right 
of  action  for  money  loaned  to  be  used  in  gambling;  Booth  v.  People,  50  L.  R.  A. 
762,  which  sustains  statute  making  unlawful,  options  for  sale  of  commodities 
which  have  been  subject  of  gambling  operations;  Central  Stock  &  Grain  Exchange 
v.  Bendinger,  56  L.  R.  A.  875,  which  holds  broker  liable  to  refund  to  principal 
money  illegally  taken  from  agent  as  margins  on  gambling  transaction;  First 
Xat.  Bank  v.  Carroll,  8  L.  R.  A.  275.  which  holds  guaranty  that  cattle  will  sell 
at  specified  price  in  consideration  of  receiving  all  above  such  price,  gambling 
contract;  Jemison  v.  Citizens  Sav.  Bank,  9  L.  R.  A.  708,  which  holds  specu- 
lative dealing  in  cotton  futures  by  savings  bank,  ultra  vires;  Olson  v.  Sawyer 
Goodman  Co.  53  L.  R.  A.  648,  which  holds  void,  agreement  to  debit  and  credit 
on  accounts  due  employees,  their  winnings  at  card  games  with  each  other;  Pope 
v.  Hanke,  28  L.  R.  A.  568,  which  holds  comity  does  not  require  execution  of  law 
against  public  policy. 

L.R.A.  Au.  Vol.  I.— 88. 


7  L.R.A.  705]  L.  E.  A.  CASES  AS  AUTHORITIES. 

Cited   in  notes    (117  Am.  St.  Rep.   503)    on   invalidity   of  contracts   made   in 
violation  of  penal  statute;    (119  Am.  St.  Rep.   174,  176,  177,   178)    on  defenses 
to  obligations  given  for  gambling  debts. 
Stock  gambling  contracts. 

Cited  in  footnote  to  Baxter  v.  Deneen,  64  L.  R.  A.  949,  which  holds  that  equity 
will  not  aid  party  to  stock  gambling  contract  to  recover  margins  deposited  by 
broker. 

Cited  in  note  (11  L.R.A.  (N.S.)  577)  on  right  of  broker  to  recover  commis- 
sions or  advances  in  furthering  wagering  contract. 

7  L.  R.  A.  706,  CARTWRIGHT  v.  DICKINSON,  88  Tenn.  476,  12  S.  W.  1030. 
Stock  subscription  contract. 

Approved  in  Greenbrier  Industrial  Exposition  v.  Rodes,  37  W.  Va.  740,  17 
S.  E.  306,  holding  signing  and  acknowledging  statutory  agreement  for  organiza- 
tion of  corporation,  binding  when  company  incorporated  and  organized ;  Ban- 
nister v.  Wallace,  14  Tex.  Civ.  App.  455,  37  S.  W.  250,  holding  obligor  not 
released  from  convict  bond  because  of  agreement  with  person  presenting  same, 
for  others'  signatures  not  obtained. 

Cited  in  Beam  v.  Floyd  County  Farmers'  Union,  8  Ga.  App.  399,  69  S.  E. 
225,  holding  that  capital  stock  of  corporation  is  trust  fund  for  benefit  of  stock- 
holders and  creditors  and  officer  cannot  release  subscriber  from  payment  of 
subscription. 

Cited  in  footnote  to  Elyton  Land  Co.  v.  Birmingham  Warehouse  &  Elevator 
Co.  12  L.  R.  A.  307,  which  holds  subscribers  liable  to  creditors  where  stock  paid 
for  by  conveyance  of  land  worth  only  amount  assumed  by  corporation. 

Cited  in  notes  (33  L.  R.  A.  596)  as  to  withdrawal  of  subscription  for  shares 
of  corporation;  (10  L.  R.  A.  707)  as  to  notice  to  agent  being  notice  to  principal; 
( 61  L.R.A.  627 )  on  right  of  corporation  to  purchase  its  own  shares  of  stock : 
(93  Am.  St.  Rep.  366)  on  liability  to  corporations  of  subscribers  to  stock;  (22 
Eng.  Rul.  Cas.  41)  as  to  when  subscription  to  stock  becomes  effective. 

Distinguished  in  First  Nat.  Bank  v.  Peoria  Watch  Co.  191  111.  134,  60  N.  E 
859,  holding  subscriber  for  capital  stock  surrendered  without  payment  for  in 
full,  upon  resale  not  liable;  Hudson  Real  Estate  Co.  v.  Tower,  161  Mass.  14,  42 
Am.  St.  Rep.  379,  36  N.  E.  680,  holding  that  subscriber  to  capital  stock  may 
withdraw  before  corporation  organized  upon  giving  due  notice. 
Effect  of  mistake  of  law. 

Cited  in  footnote  to  Atherton  v.  Roche,  55  L.  R.  A.  591,  which  denies  power  to 
reform  deed  to  daughter  and  husband  and  "their"  heirs  so  as  to  include  all  heirs 
of  her  body. 
Increase  of  capital  stock  by  by-law. 

Cited  in  Union  R.  Co.  v.  Sneed,  99  Tenn.  6,  41  S.  W.  364,  holding  increase 
of  capital  stock  by  mere  resolution  of  board  of  directors,  void;  Ross-Meehan 
Brake  Shoe  Foundry  Co.  v.  Southern  Malleable  Iron  Co.  72  Fed.  961,  holding 
increase  of  capital  stock  by  mere  resolution  of  stockholders,  void ;  Peck  v. 
Elliott,  38  L.  R.  A.  622,  24  C.  C.  A.  432,  47  U.  S.  App.  605,  79  Fed.  16,  holding 
increase  of  capital  stock  by  amendment  of  by-laws,  valid  where  corporation 
authorized  to  fix  same  by  by-laws. 
Issuance  of  certificate  as  affecting  stockholder's  status. 

Cited  in  Sherwood  v.  Illinois  Trust  &  Sav.  Bank,  195  111.  118,  88  Am.  St.  Rep. 
183,  62  N.  E.  835,  holding  that  issuance  of  certificate  of  stock  not  necessary  to 
status  as  stockholder;  Cotter  v.  Butte  &  R.  Valley  Smelting  Co.  31  Mont.  133, 


1395  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  LJ?.A.  711 

77  Pac.  509,  holding  one  can  be  a  stockholder  prior  to  the  issuance  and  delivery 
to  him  of  certificates  of  stock. 
Subscriptions    for   unauthorized   stock. 

Cited  in  note   (38  L.  R.  A.  616)   as  to  power  to  increase  capital  stock  of  cor- 
porations. 
Withdrawal   or  retirement   of  corporate  stock. 

Cited  in  Fitzpatrick  v.  McGregor,  133  Ga.  339,  25  L.R.A.(X.S.)  57,  65  S.  E. 
859,  holding  the  capital  stock  being  impaired  by  purchase  of  own  stock  to  be 
paid  for  from  capital  of  corporation  the  transactions  were  illegal. 

Cited  in  note    (33   Am.  St.   Rep.  345)    on   power  of   corporation  to  purchase 
its  own  stock. 
Power  of  corporation  to  declare  forfeiture  of  stock. 

Cited  in  note  (114  Am.  St.  Rep.  25)  on  power  of  corporation  to  declare  for- 
ieiture  of  stock. 

7  L.  R.  A.  711,  SCHROEDER  v.  GALLAND,  134  Pa.  277,  19  Am.  St.  Rep.  691, 

19  Atl.  632. 
Subcontractor's  lien. 

Explained  in  Nice  v.  Walker,  153  Pa.  124,  31  W.  N.  C.  523,  34  Am.  St.  Rep. 
688,  25  Atl.  1065,  holding  lien  may  be  filed  whenever  not  expressly  or  by  necessary 
implication  prohibited  in  contract. 

Cited  in  Herrell  v.  Donovan,  7  App.  D.  C.  340,  and  Wilkinson  v.  Brice,  148 
Pa.  155,  30  W.  N.  C.  31,  23  Atl.  982,  holding  lien  invalidated  by  contractor's 
stipulation  to  file  no  lien;  Ballman  v.  Heron,  160  Pa.  385,  34  W.  N.  C.  139,  28 
Atl.  914,  holding  stipulation  to  file  no  lien,  in  building  contract  between  coten- 
ants,  invalidates  liens  in  absence  of  fraud;  Tebay  v.  Kirkpatrick,  146  Pa.  124, 
29  W.  N.  C.  186,  23  Atl.  318,  and  Fidelity  Mut.  Life  Asso.  v.  Jackson,  163  Pa. 
209,  34  W.  N.  C.  465,  43  Am.  St.  Rep.  789,  28  Atl.  883,  holding  agreement  to 
keep  building  free  from  liens  equivalent  to  contract  not  to  file  or  permit  filing 
.-of  same;  Bolton  v.  Hey,  148  Pa.  157,  23  Atl.  973,  Affirming  10  Pa.  Co.  Ct.  381, 
holding  contract  stipulation  for  payment  upon  release  of  liens,  and  delivery 
free  of  liens,  implied  agreement  not  to  file  same,  binding  on  subcontractor; 
Bolton  v.  Heyt  168  Pa.  419,  31  Atl.  1097,  holding  judgment  in  first  action  con- 
clusive in  second  action  to  enforce  lien;  Waters  v.  Wolf,  162  Pa.  156,  34  W.  N.  C. 
410,  42  Am.  St.  Rep.  815,  29  Atl.  646;  holding  statute  June  8,  1891,  making 
contractor's  agreement  concerning  liens  immaterial  in  absence  of  subcontractor's 
assent  unconstitutional;  Dersheimer  v.  Maloney,  143  Pa.  536,  22  Atl.  813,  hold- 
ing subcontractor  precluded  from  lien  by  stipulation  of  contractor  that  owner 
not  accountable  in  any  manner  for  materials;  Morris  v.  Ross,  184  Pa.  243,  38 
Atl.  1084,  holding  prohibition  against  liens  operative  in  spite  of  other  provi- 
sions protecting  owner  against  liens;  Rhine  v.  Mauk,  21  Pa.  Co.  Ct.  345,  14 
Montg.  Co.  L.  Rep.  198,  holding  contractor's  stipulation  against  liens  binding 
though  written  contract  embodying  provision  not  executed  at  time;  McElroy  v. 
Braden,  152  Pa.  81,  31  W.  X.  C.  198,  25  Atl.  235,  holding  parol  stipulation  of 
contractor  against  liens  binding  on  subcontractors;  Benedict  v.  Hood,  134  Pa. 
292,  19  Am.  St.  Rep.  698,  19  Atl.  635,  holding  change  of  building  plans  does 
not  alter  obligation  of  subcontractor's  bond  to  owner  for  performance  without 
filing  liens;  Bohem  v.  Seabury,  141  Pa.  597,  21  Atl.  674,  holding  successor  to 
contracting  partnership  cannot  file  lien  under  contract  without  showing  assign- 
ment thereof;  Bevan  v.  Thackara,  143  Pa.  200,  28  W.  N.  C.  477,  24  Ara.  St.  Rep. 
529,  22  Atl.  873,  holding  material  man  cannot  recover  for  supplies  to  stable  on 
claim  against  house,  where  they  were  erected  under  separate  contracts  of  which 


7  L.R.A.  711]  L.  R.  A.  CASES  AS  AUTHORITIES.  139d 

owner  was  ignorant;  Commonwealth  Title  Ins.  &  T.  Co.  v.  Ellis,  44  W.  X.  ( 
429,  holding  stipulation  against  filing  liens  by  subcontractor  "or  any  person" 
precludes  contractor,  though  owner  otherwise  protected  against  him ;  Wolf  v. 
Glassport  Lumber  Co.  210  Pa.  372,  59  Atl.  1105,  on  effect  to  be  given  stipulation 
in  contract  against  liling  of  liens;  Stein  v.  McCarthy,  120  Wis.  295,  97  X.  W. 
912,  holding  a  subcontractor  seeking  to  enforce  a  lien  for  plastering  would  be 
bound  to  take  notice  of  terms  and  conditions  of  the  original  contract;  Davis 
v.  La  Crosse  Hospital  Asso.  12]  Wis.  583,  99  X.  W.  351,  1  A.  &  E.  Ann.  Cas. 
950,  holding  a  builder  waives  his  right  to  the  lien  remedy  by  an  express  stipu- 
lation not  to  file  his  lien;  Glassport  Lumber  Co.  v.  Wolf,  213  Pa.  409,  62  Atl. 
1074,  holding  a  subcontractor  has  no  power  to  file  mechanic's  lien  where  con- 
tract expressly  stipulates  that  no  liens  shall  be  filed  for  labor  or  materials 
furnished;  W.  W.  Brown  Constr.  Co.  v.  Central  Illinois  Constr.  Co.  234  111.  401,. 
84  X.  E.  1038,  holding  right  of  subcontractor  to  enforce  a  lien  is  barred  when- 
ever the  contract  entered  into  by  owner  contains  agreement  that  there  shall  be- 
np  lien;  George  B.  Swift  Co.  v.  Dolle,  39  Ind.  App.  660,  80  X.  E.  678,  holding 
subcontract  or  having  knowledge  of  agreement  of  contractor  with  owner  that 
property  shall  be  kept  free  from  liens,  cannot  enforce  lien  for  wages  and  material 
furnished;  Burger  v.  S.  R.  Moss  Ciga-r  Co.  26  Lane.  L.  Rev.  93,  striking  off 
lien  by  subcontractor  where  there  is  agreement  between  owner  and  contractor 
that  no  mechanics'  liens  shall  be  filed;  Murphy  v.  Ellis,  22  Pittsb.  L.  J.  n.  s. 
366,  holding  that  contract  by  contractor  to  deliver  house  free  of  all  liens  does, 
not  prevent  lien  by  material-man;  Pierce  v.  Van  Horn,  12  Luzerne  Legal  Reg. 
Rep.  202,  on  lien  of  material-man,  where  contractor  agrees  to  deliver  building 
free  from  liens. 

Cited  in  footnotes  to  Smith  v.  Xeubauer,  33  L.  R.  A.  685.  which  authorizes 
lien  for  materials  furnished  to  subcontractors  as  well  as  to  contractors;  High- 
tower  v.  Bailey,  49  L.  R.  A.  255,  which  sustains  lien  to  subcontractors  or  mate- 
rial men  irrespective  of  notice  of  claim  or  state  of  account  between  owner  and 
principal  contractor;  Steger  v.  Arctic  Refrigerating  Co.  11  L.  R.  A.  580.  which 
holds  lien  for  laying  pipes  on  land  of  strangers  for  refrigerating  company  enforce- 
able against  entire  plant  of  company. 

Cited  in  notes  (12  L.  R.  A.  35)  on  priority  of  mechanics'  lien  over  subsequent 
liens;  (20  L.  R.  A.  565)  on  payment  to  contractors  or  subcontractors  as  affecting- 
liens  of  subordinate  claimants;  (13  L.  R.  A.  703)  on  legislative  intent  in  Xew 
York  mechanic's  lien  law  of  1885;  (19  Am.  St.  Rep.  699)  on  stipulations  in 
builder's  contract  destroying  rights  of  subcontractors  and  materialmen  to  liens. 

Distinguished  in  Evans  v.  Grogan,  153  Pa.  122,  25  Atl.  804,  and  Loyd  v.. 
Krause.  147  Pa.  403,  23  Atl.  602,  holding  filing  of  lien  not  precluded  by  contract 
exempting  owner  from  personal  claim,  and  providing  that  final  payment  shall 
be  withheld  until  "complete  release  of  liens;"  Schmid  v.  Palm  Garden  Improv. 
Co.  162  Pa.  217,  34  W.  X.  C.  463.  29  Atl.  727 :  Murphy  v.  Morton,  139  Pa.  346, 
20  Atl.  1049;  Murphy  v.  Ellis,  11  Pa.  Co.  Ct.  303,  1  Pa.  Dist.  R,  399,  holding 
contract  for  building  and  delivery  of  house  free  of  liens  does  not  preclude* 
material  man  from  filing  same;  Taylor  v.  Murphy,  148  Pa.  340,  30  W.  N.  C.  28, 
33  Am.  St.  Rep.  825,  23  Atl.  1134,  holding  contractor's  agreement  to  "release 
and  discharge"  property  of  liens  does  not  prevent  filing  of  same;  Jarvis  v.  State 
3ank,  22  Colo.  316,  5.1  Am.  St.  Rep.  129,  45  Pac.  505,  holding  subcontractor  not 
precluded  from  filing  lien  by  contractor's  waiver  of  lien  and  agreement  to  defend 
owner  therefrom;  Willey  v.  Topping,  146  Pa.  430,  23  Atl.  335.  holding  material 
man  not  affected  by  contractor's  release  from  liens  executed  after  original  con- 
tract, though  before  materials  supplied;  Cook  v.  Murphy,  150  Pa.  43,  30  W.  X.  C.. 
336,  24  Atl.  630,  holding  supplementary  contract  does  not  affect  lien  under  origi- 


1397  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  715 

nal  contract,  where  not  brought  to  subcontractor's  notice;  McCollum  v.  Riale, 
163  Pa.  608,  43  Am.  St.  Rep.  816,  30  Atl.  282,  holding  material  man  entitled  to 
lien  though  owner  secretly  sold  property  and  agreed  to  build  without  permitting 
liens;  Aste  v.  Wilson,  14  Colo.  App.  326,  59  Pac.  846,  upholding  subcontractor's 
right  to  file  lien  where  contractor  has  right  thereto,  though  contract  prohibits 
same  in  favor  of  subcontractor;  Ditto  v.  Jackson,  3  Colo.  App.  283,  33  Pac.  81, 
holding  complaint  on  foreclosure  of  mechanic's  lien  not  demurrable  where  owner's 
indebtedness  to  contractor  alleged;  Connell  v.  Ker,  9  Pa.  Dist.  R.  146,  17  Lane. 
L.  Rev.  207,  holding  builder's  contract  duly  recorded  not  part  of  court  record  on 
motion  to  strike  off  subcontractor's  lien;  Richards  v.  Waldron,  9  Mackey,  590, 
holding  lien  of  unrecorded  trust  deed  superior  to  subsequent  mechanics'  liens; 
Keim  v.  McRoberts,  18  Pa.  Super.  Ct.  170,  holding  description  of  building  in 
contract  as  old  or.  new  not  binding  on  subcontractor  in  filing  lien;  Cost  v. 
Newport  Builders'  Supply  &  Hardware  Co.  85  Ark.  412,  108  S.  W.  509,  14  A. 

6  E.    Ann.   Gas.    142,   holding   subcontractor   is   not  bound   by  such   stipulation 
unless  he  has  actual  notice  thereof. 

Disapproved  in  Miles  v.  Coutts,  20  Mont.  50,  49  Pac.  393,  holding  contractor's 
stipulation  against  liens  does  not  preclude  same  by  subcontractor  not  assenting 
to  contract;  Central  Illinois  Constr.  Co.  v.  W.  W.  Brown  Constr.  Co.  137  111. 
App.  533,  holding  stipulation  that  completed  work  shall  be  delivered  free  from 
any  and  all  liens  is  not  a  waiver  of  statutory  right  to  a  lien. 
Constitutionality  of  mechanic's  lien  law. 

Cited  in  Barrett  v.  Millikan,  156  Ind.  514,  83  Am.  St.  Rep.  220,  60  N.  E.  310, 
holding  statute  creating  mechanics'  liens  not  taking  of  property  without  due 
process  of  law;  Jones  v.  Great  Southern  Fireproof  Hotel  Co.  30  C.  C.  A.  116,  58 
U.  S.  App.  397,  86  Fed.  378,  holding  statute  giving  subcontractor  lien  to  extent 
of  contract  price  irrespective  of  payments  to  contractor  on  terms  of  contract 
constitutional;  Mallory  v.  La  Crosse  Abattoir  Co.  80  Wis.  186,  49  N.  W.  1071 
(dissenting  opinion),  majority  holding  statute  giving  material  man  lien  irre- 
spective of  contractor's  agreement  on  payment  to  contractor  by  owner  consti- 
tutional. 
Contracts. 

Cited  in  McCaul's  Estate,  28  Pa.  Co.  Ct.  172,  holding  compensation  for  engi- 
neer's plans  for  building  dependent  upon  acceptance  by  owner,  under  special 
terms  of  contract. 

7  L.  R.  A.  715,  PEOPLE  ex  rel.  KEMMLER  v.  DURSTOX,  119  N.  Y.  569,  16  Am. 

St.  Rep.  859,  24  X.  E.  6. 
I'roimi  pi  i<m    of  constitutionality  of  statute. 

Approved  in  McGrath  v.  Grout,  69  App.  Div.  315,  74  N.  Y.  Supp.  782,  holding 
.that  legislature  will  be  presumed  to  have  acted  within  limits  of  authority  in 
passing  act;  Rathbone  v.  Wirth.  150  X.  Y.  509,  34  L.  R.  A.  426,  45  X.  E.  15, 
Affirming  6  App.  Div-.  284,  40  X.  Y.  Supp.  535  (dissenting  opinion),  as  to  neces- 
sity of  upholding  statute  unless  clearly  and  substantially  in  conflict  with  con- 
stitution; Bell  v.  Gaynor,  14  Misc.  339,  36  X.  Y.  Supp.  122  (dissenting  opinion) 
as  to  presumption  in  favor  of  constitutionality  of  act;  New  York  v.  Chelsea 
Jute  Mills.  43  Misc.  269,  88  N.  Y.  Supp.  1085,  upholding  constitutionality  of 
-act  prohibiting  employment  of  children  under  fourteen  years  of  age  during 
school  terms;  People  v.  Lochner,  177  N.  Y.  159,  69  X.  E.  373,  upholding  con- 
stitutionality of  act  limiting  hours  of  labor  in  bakeries;  Tenement  House 
Department  v.  Moeschen,  89  App.  Div.  53fi,  85  N.  Y.  Supp.  704,  upholding 
•constitutionality  of  act  requiring  tenement 'house  school  sinks  to  be  replaced  by 
individual  water  closets;  People  ex  rel.  Metropolitan  Street  R.  Co.  v.  State  Tax 


7  L.R.A.  715]  L.  R.  A.  CASES  AS  AUTHORITIES.  1398' 

Comrs.  174  N.  Y.  446,  63  L.  R.  A.  894,  67  N.  E.  69,  holding  right  of  local  self- 
government  not  violated  by  imposing  duty  of  assessing  tax  on  special  franchises 
upon  state  officers. 

Cited  in  People  ex  rel.  Peabody  v.  Baker,  59  Misc.  363,  110  N.  Y.  Supp.  848, . 
holding  it  the  duty  of  court  to  presume  in  favor  of  validity  of  a  statute  until 
its  violation  of  the  constitution  is  established  beyond  all  reasonable  doubt. 
Extrinsic    evidence    of    11  :i<'o:is<  i  t  is  t  ioim  1  it  v    of    act. 

Cited  in  Waterloo  Woolen  Mfg.  Co.  v.  Shanahan,  128  N.  Y.  360,  14  L.  R.  A. 
485,  28  N.  E.  358,  holding  that  purpose  of  legislature  to  appropriate  public 
money  for  benefit  of  individual  cannot  be  determined  by  court  on  testimony  of 
expert  witness  where  the  act  itself  states  purpose  to  be  enlargement  of  public 
canal;  Bonnett  v.  Vallier,  136  Wis.  204,  17  L.R.A.(N.S.)  492,  128  Am.  St.  Rep. 
1061,  116  N.  W.  885,  holding  the  court  looks  to  language  of  statute  and  all 
facts  bearing  on  the  situation  of  which  it  may  be  said  to  judicially  know  because 
of  their  common  nature  or  otherwise  to  determine  what  is  reasonable;  Tenement 
House  Department  v.  Moeschen,  179  N.  Y.  330,  70  L.R.A.  708,  -103  Am.  St.  Rep. 
910,  72  N.  E.  231,  1  A.  &  E.  Ann.  Cas.  439,  holding  constitutionality  of  a 
statute  may  be  determined  by  considering  its  language  and  the  material  facts 
of  which  the  court  can  take  judicial  notice. 

Cited  in  note    ( 14  L.  R.  A.  459 )    as  to  consideration  of  extrinsic  evidence  to  • 
show   unconstitutionality  of   statute. 
Cruel  and   iiiuisu.-. I   punishments. 

Approved  in  Storti  v.  Com.  178  Mass.  553,  52  L.  R.  A.  522,  60  N.  E.  210, 
holding  electrocution  not  cruel  or  unusual  punishment;  People  v.  Kemmler,  119 
N.  Y.  586,  24  N.  E.  9,  raising  without  deciding  question  of  validity  of  sentence 
to  death  by  electrocution. 

Cited  in  State  .v.  Tomassi,  75  N.  J.  L.  747,  69  Atl.  214,  holding  the  court 
cannot  assume  that  death  by  the  electric  current  is  a  cruel  punishment  in  the 
constitutional  sense. 

Cited  in  footnote  to  Com.  v.  Murphy,  30  L.  R.  A.  734,  which  sustains  statute 
imposing  imprisonment  for  life  for  criminal  intimacy  with  girl  under  sixteen. 

Cited  in  note  (35  L.  R.  A.  575)  as  to  cruel  and  unusual  punishments. 
Conclusiveness   of   decision    iiui:inx»    constitutionality. 

Cited  in  Ex-parte  Hollman,  79  S.  C.  28,  21  L.R.A.(X.S.)  251,  60  S.  E.  19, 
14  A.  &  E.  Ann.  Cas.  1105"  (dissenting  opinion),  on  effect  to  be  given  a  con- 
viction under  an  unconstitutional  law. 

Cited  in  note  (39  L.  R.  A.  457)  as  to  decision  against  constitutional  right  as 
a  nullity  subject  to  collateral  attack. 

7  L.  R.  A.   717,  PEOPLE  v.  DETROIT,  G.  H.  &  M.  R.   CO.  79  Mich.  471,  44 

N.  W.  934. 
Fencing1  track  and  maintaining  grates. 

Cited  in  Louisville,  N.  A.  &  C.  R.  Co.  v.  Hughes,  2  Ind.  App.  78,  28  N.  E.  158,. 
holding  object  of  statutes  requiring  railroads  to  fence  is  as  much  to  diminish 
danger  of  travel  as  to  provide  compensation  for  animals  injured. 

Cited  in  footnote  to  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  v.  Crown  Point,  35 
L.  R.  A.  684,  which  denies  power  of  town  to  compel  railroad  company  to  keep- 
watchman  and  maintain  gates  at  crossing  at  own  expense. 

Cited  in  note  (39  L.  R.  A.  619)  on  municipal  control  over  nuisances  created 
by  railroads  on  highways. 

Distinguished  in  Louisville  &  N.  R.  Co.  v.  Emerson,  125  Ky.  110,  110  S.  W. 
863,  holding  where  part  of  charter  of  railroad  company  provided  for  wagon 
roads  whenever  tracks  crossed  through  land,  company  was  bound  to  put  in* 


1399  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  LJLA.  722 

crossing  where   tract  of  land  was  subsequently  divided   into  two  parts  though 
crossing  was  put  in  originally. 

7  L.  R.  A.  720,  LAXG  v.  SALLIOTTE,  79  Mich.  505,  44  N.  W.  938. 
When    arbitration   permissible. 

Cited  in  McCord  v.  Flynn,  111  Wis.  87,  86  N.  W.  668,  holding  submission  of 
controversy  involving  specific  performance  of  contract  to  convey  interest  in 
land  in  compensation  of  services  not  void  under  statute  forbidding  submission 
as  to  claim  to  estate  in  fee  or  for  life. 

Cited  in  note   (17  L.  R.  A.  211)   on  submission  to  arbitration. 

7  L.  R.  A.  722,  HANFORD  v.  ST.  PAUL  &  D.  R.  CO.  43  Minn.  104,  44  N.  W.  1144. 
State   ownership  of  beds  of  waters  and   watercourses. 

Cited  in  Minnesota  Canal  &  Power  Co.  v.  Koochiching  Co.  97  Minn.  443,  5 
L.R.A.  (X.S.)  645,  107  N.  W.  405,  7  A.  &  E.  Ann.  Cas.  1182,  holding  rights  of  state 
in  navigable  waters  are  held  in  trust  for  public  and  not  alienable;  Newport 
Xews  Shipbuilding  &  Dry  Dock  Co.  v.  Jones,  105  Va.  510,  6  L.R.A.(X.S.)  250, 
54  S.  E.  314,  holding  the  navigable  waters  beyond  low  water  mark  and  the  soil 
beneath  them  within  territorial  limits  of  a  state  are  the  property  of  the  state 
and  subject  to  its  control. 
Waters;  title  and  rights  of  riparian  proprietor. 

Cited  in  Hall  v.  Hobart,  108  C.  C.  A.  348,  186  Fed.  431,  Affirming  174  Fed. 
445,  holding  that  riparian  owner  on  navigable  stream  has  right  of  possession 
and  use  of  bed  of  stream  between  low  water  mark  and  bed  of  channel  excepting 
where  such  use  interferes  with  public  right  of  navigation. 

Cited  in  footnote  to  Webb  v.  Demopolis,  21  L.  R.  A.  62,  which  holds  riparian 
owner's  title  extends  to  low-water  mark  on  navigable  river. 

Cited   in   notes    (12   L.   R.   A.   677)    on  title   to   soil   under  navigable   rivers; 
(12  L.  R.  A.  636)    on  qualified  property  in  water  front;    (40  L.  R.  A.  647)    on 
private  contracts  respecting  wharves;    (19  Am.  St.  Rep.  229,  232,  233)   on  rights 
of  littoral  and  riparian  owners  in  navigable  waters. 
Separation   of   riparian   rigrhts   from   shore   lands. 

Cited  in  Bradshaw  v.  Duluth  Imperial  Mill  Co.  52  Minn.  62,  53  N.  W.  1066, 
holding  sals  of  submerged  laud  by  riparian  proprietor  disassociates  shore  land 
from  riparian  right;  Gilbert  v.  Eldridge,  47  Minn.  214,  13  L.  R.  A.  413,  49  X.  W. 
679,  holding  where  land  platted  beyond  shore  line,  conveyance  of  inland  block 
with  reference  to  plat  does  not  carry  with  it  right  to  submerged  blocks  and 
streets;  Concord  Mfg.  Co.  v.  Robertson,  66  X.  H.  20,  18  L.  R.  A.  690,  25  Atl.  718, 
holding  abutter's  private  right  of  use  and  occupation  in  public  water  is  severable 
from  estate  in  upland;  Xorthern  P.  R.  Co.  v.  Scott  &  H.  Lumber  Co.  73  Minn.  32, 
75  X.  W.  737,  holding  riparian  rights  originally  belonging  to  shore  block  marked 
on  plat,  may  be  severed  therefrom  and  attached  to  submerged  land;  Duluth  v. 
St.  Paul  R,  Co.  49  Minn.  209,  51  X.  W.  1163,  holding  riparian  proprietor  may 
convey  fee  in  land  above  shore  line,  and  reserve  private  rights  in  land  under  water 
originally  appurtenant  to  estate;  Gibson  v.  Kelly,  15  Mont.  424,  39  Pac.  517, 
holding  riparian  proprietor  may  maintain  action  for  recovery  of  land  between 
high  and  low  water  mark  from  one  in  possession  without  right:  Gridley  v. 
Xorthern  P.  R.  Co.  Ill  Minn.  285,  126  X.  W.  897,  to  the  point  that  riparian 
rights  can  be  severed  and  transferred  apart  from  shore:  Kelley  v.  Salvas,  146" 
Wis.  548,  131  X.  W.  436,  holding  that  riparian  owner  on  navigable  stream  may 
separate  ownership  of  lands  including  bank  from  ownership  of  bed  of  stream, 
and  convey  them  to  different  persons. 

Cited  in  note   (40  L.  R,  A.  394)   on  separation  of  riparian  rights  from  upland- 


7  L.R.A.  722]  L.  R.  A.  CASES  AS  AUTHORITIES.  1400 

Distinguished  in  State  v.  St.  Paul  &  D.  R.  Co.  81  Minn.  424,  84  N.  W.  302, 
holding  riparian  rights  are  incident  to  shore  property,  having  no  separate  exist- 
once  until  severed  from  paramount  estate  by  act  of  owner;  Lake  Shore  &  M.  S. 
E.  Co.  v.  Platt,  53  Ohio'  St.  267,  29  L.  R.  A.  55,  41  N.  E.  243,  holding  alvean 
vights  are  incapable  of  separation  from  riparian  title  to  which  they  are  incident. 
Riparian  riuhts  following-  conveyance  of  riparian  estate. 

Cited  in  Minneapolis  Trust  Co.  v.  Eastman,  47  Minn.  304,  50  N.  W.  82,  holding 
conveyance  of  submerged  land  above  low-water  mark  carries  with  it  right  to 
subsequent  alluvial  deposits;  Mills  v.  Evans,  100  Iowa,  716,  69  N.  W.  1043, 
holding  riparian  owner  on  navigable  lake  may  construct  pier  below  high-water 
mark. 

Cited  in  footnote  to  Prior  v.  Swartz,  18  L.  R.  A.  668,  which  holds  riparian 
right  to  build  wharves  not  destroyed  by  statute  designating  land  for  planting 
oysters. 

Distinguished  in  St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water  Comrs. 
168  U.  S.  367,  42  L.  ed.  504,  18  Sup.  Ct.  Rep.  157,  holding  grant  of  right  to  main- 
tain dams  and  sluices  in  river  subject  to  rights  of  navigation,  and  right  of  public 
to  divert  waters  for  public  use. 
Separation  of  title  to  abutting:  land  and  liiuli  \vn  y. 

Cited  in  White  v.  Jefferson,  110  Minn.  288,  32  L.R.A.(N.S-)  778,  124  N.  W. 
373,  holding  that  owner  may  sell  lot  abutting  on  street  and  part  with  or  reserve 
fee  to  middle  of  street,  subject  to  public  easement. 

7  L.  R.  A.  729,  GARDNER  v.  BUNN,  132  111.  403,  23  N.  E.  1072. 
Proof    of   execution    of    power    of    attorney    or    confession. 

Cited  in  Desnoyers  Shoe  Co.  v.  First  Nat.  Bank,  188  111.  316,  58  N.  E.  994,  Af- 
firming 89  111.  App.  585,  and  Oppenheimer  v.  Giershofer,  54  111.  App.  41,  holding 
judgment  by  confession  invalid  without  proof  of  execution  of  power  of  attorney; 
First  Nat.  Bank  v.  Havens  &  G.  Co.  61  111.  App.  225,  stating  proof  of  execution  of 
power  of  attorney  was  filed  in  compliance  with  rule  announced  in  main  case; 
Epstein  v.  Ferst,  35  Fla.  514,  17  So.  414,  holding  judgment  entered  without  proof 
of  execution  of  confession  of  judgment  invalid;  Matzenbaugh  v.  Doyle,  156  111. 
335,  40  N.  E.  935,  Affirming  56  111.  App.  345,  holding  authority  of  attorney  to 
execute  cognovit  and  of  clerk  to  enter  judgment  should  fully  appear  from  papers, 
-  and  cannot  be  supported  by  evidence  aliunde. 
What  must  be  filed. 

Cited  in  People  v.  Whitehead,  90  HI.  App.  620,  holding  there  must  be  filed  with 
clerk  declaration,  original  warrant  of  attorney,  affidavit  verifying  it,  and  plea 
confessing  amount  for  which  judgment  is  entered;  Snyder  Bros.  v.  Bailey,  165 
111.  453,  46  N.  E.  452,  holding  clerk  authorized  to  enter  judgment  on  declaration, 
warrant  of  attorney  valid  on  its  face,  proof  of  its  execution  and  plea  of  confession. 

Cited  in  note   (13  L.  R.  A.  800)   on  proof  necessary  to  authorize  entry  of  judg- 
ment confessed  on  warrant  of  attorney. 
Strict  construction  of  power. 

Cited  in  Graves  v.  Whitney,  49  111.  App.  442,  holding  authority  to  confess  judg- 
ment without  process  must  be  clearly  given  and  strictly  pursued;  J.  W.  Butler 
Paper  Co.  v.  Robbins,  151  111.  624,  38  N.  E.  153,  holding  power  conferred  by  res- 
olution on  president  of  corporation  to  borrow  money  and  secure  its  repayment 
should  be  strictly  construed. 
Appearance  by  attorney  as  conferring  jurisdiction. 

Cited  in  Ward  v.  White,  66  111.  App.  157,  holding  jurisdiction  of  person  ac- 
quired by  entry  of  appearance  by  attorney  in  fact;  People  v.  Moore,  143  111. 


1401  L.  R.  A. 'CASES  AS  AUTHORITIES.  [7  L.R.A.  733 

App.  385,  holding  jurisdiction  of  both  the  subject-matter  and  of  the  person  is 
<•->< -utial  to  the  validity  and  binding  force  of  a  judicial  sentence;  Forsytb  v. 
Barnes,  228  111.  336,  81  N.  E.  1028,  10  A.  &  E.  Ann.  Cas.  710,  holding  confession 
of  judgment  on  warrant  of  attorney  executed  by  a  woman  during  coverture  is, 
at  common  law,  void  as  to  her. 
Confession  statutory  proceeding1. 

Cited  in  Pond  v.  Simons,  17  Ind.  App.  87,  45  N.  E.  48,  as  holding  confession 
of  judgment  in  vacation  statutory  proceeding  in  derogation  of  common  law. 
Replevin. 

Cited  in  note    (55  L.  R,  A.  281)    on  right  to  replevy  property  from  levying 
officer. 
>•  ori«. •!!:«•  of  property  in  another's  possession  under  execution. 

Cited  in  Brant  v.  Lane,  54  Tex.  Civ.  App.  429,  118  S.  W.  229,  to  the  point 
that    owner   may   mortgage    personal   property   at   the   time   under   levy   of   an 
execution. 
\\  hi>  may  attack  judgment. 

Cited  in  note   (23  Am.  St.  Rep.  286)   on  who  may  attack  judgment. 

7  L.  R.  A.  731,  MOORE  v.  THORP,  16  R.  I.  655,  19  Atl.  321. 
Allowance    for    improvements. 

Followed  in  Langley  v.  Langley,  19  R.  I.  506,  36  Atl.  1133,  holding  cotenant 
may  be  allowed  value  of  improvements  in  case  of  sale  or  division  of  property. 

Cited  in  Carson  v.  Broady,  56  Xeb.  654,  71  Am.  St.  Rep.  691,  77  N.  W.  80, 
holding  on  partition  improvements  should  be  allotted  to  tenant  making  them; 
and  on  sale  proceeds  should  be  divided  after  deducting  sum  in  which  saleable 
value  increased  by  improvements;  Ward  v.  Ward.  40  W.  Va.  621,  29  L.  R.  A.  461, 
52  Am.  St.  Rep.  911,  21  S.  E.  746,  holding  on  sale  coparcener  making  improve- 
ments should  receive  amount  by  which  value  of  property  is  enhanced  and  balance 
should  be  divided;  Pulse  v.  Osborn,  30  Ind.  App.  636,  64  X.  E.  59,  raising,  but  not 
deciding,  question  whether  cotenant  entitled,  upon  partition  sale,  to  be  recom- 
pensed for  actual  amount  of  present  value  due  to  improvements. 

Cited  in  notes  (8  L.  R.  A.  290)  on  allowance  for  improvements;  (29  L.  R.  A. 
449,  450,  452)  liability  of  cotenants  for  improvements;  (52  Am.  St.  Rep.  936) 
on  personal  liability  of  cotenant  for  improvements;  (52  Am.  St.  Rep.  939)  on 
payment  of  improvements  out  of  proceeds  of  partition  sale. 

7  L.  R.  A.  733,  STATE  ex  rel.  TAYLOR  v.  EIDSOX,  76  Tex.  302,  13  S.  W.  263. 
Incorporation   as   affected   by   inclusion    of    farming:    on    vacant    land. 

Followed  in  Ewing  v.  State,  81  Tex.  177,  16  S.  W.  872,  holding  incorporation 
invalid  which  embraced  area  of  10  square  miles,  8  of  which  was  farming  and 
unoccupied  land. 

Cited  in  State  v.  Baird,  79  Tex.  64,  15  S.  W.  98,  holding  incorporation  of  town 
will  not  be  dissolved  because  small  strip  of  agricultural  land  included  within  its 
limits:  McClesky  v.  State,  4  Tex.  Civ.  App.  323,  23  S.  W.  518,  holding  attempt 
to  include  unreasonable  amount  of  vacant  land  will  annul  attempted  incorpora- 
tion; Copeland  v.  St.  Joseph,  126  Mo.  433,  29  S.  W.  281,  holding  inclusion  of 
reasonable  amount  of  agricultural  land  permissible;  State  ex  rel.  Perrin  v.  Hoard, 
94  Tex.  529,  62  S.  W.  1054,  holding  Tex.  Rev.  Stat.  art.  580,  prohibiting  the  in- 
clusion for  taxation  of  lands  not  used  for  town  purposes  embodies  rule  expressed 
in  main  case;  Junction  City  School  v.  School  Dist.  Xo.  6  Trustees,  81  Tex.  152, 
16  S.  W.  742,  holding  question  whether  incorporated  territory  excessive  and  un- 
reasonable in  its  limits  depends  on  facts  of  each  case;  State  v.  Merchant,  38 


7  L.R.A.  733]  L.  R.  A.  CASES  AS  AUTHORITIES.  1402 

Tex.  Civ.  App.  228,  85  S.  W.  483,  holding  attempted  incorporation  of  open  land 
covered  by  swamp,  jungles  and  cow  ranches,  inhabited  in  part  by  transients  is 
invalid;  State  ex  rel.  English  v.  Buchanan,  37  Tex.  Civ.  App.  327,  83  S.  W. 
723,  holding  boundaries  need  not  be  confined  to  town  proper,  of  territory  incor- 
porated for  free  school  purposes,  and  may  take  in  agriculture  land,  under  stat- 
utes authorizing  incorporation  for  such  purpose;  Merritt  v.  State,  42  Tex.  Civ. 
App.  499,  94  S.  W.  372,  holding  statute  makes  it  a  question  of  fact  whether 
territory  sought  to  be  incorporated  includes  territory  not  intended  to  be  used 
for  town  purposes;  State  ex  rel.  Richardson  v.  Larkin,  41  Tex.  Civ.  App.  263, 
90  S.  W.  912,  holding  it  the  duty  of  the  promoters  of  the  corporation  to  fix 
limits  so  as  not  to  include  an  unreasonable  amount  of  pasture,  agriculture  and 
•wood  land. 

Cited  in  note  (25  L.  R,  A.  756)  on  physical  characteristics  necessary  to  mu- 
nicipal recognition. 

Distinguished  as  relating  to  incorporation  for  general  municipal  purposes  in 
Pinson  v.  Vesey,  23  Tex.  Civ.  App.  93,  56  S.  W.  593,  which  related  to  incorpora- 
tion for  school  purposes  only. 

7  L.  R.  A.  734,  STATE  ex  rel.  HENDERSON  v.  LE  SUEUR,  99  Mo.  552,  13 

S.  W.  237. 
Social  and  benevolent  incorporations. 

Cited  in  State  ex  rel.  Hadley  v.  Meramec  Rod  &  Gun  Club,  121  Mo.  App.  372, 
98  S.  W.  815,  on  right  to  corporate  existence  under  laws  permitting  organization 
under  benevolent,  religious,  scientific  and  educational  laws. 
Construction  of  "educational"  in  tax  law. 

Cited  in  Re  Moses,  138  App.  Div.  529,  123  N.  Y.  Supp.  443,  holding  that 
•word  "educational"  as  used  in  tax  law,  is  used  in  its  broader  signification  as 
the  act  of  developing  and  cultivating  various  physical,  intellectual  and  moral 
qualities  towards  improvement  of  body,  mind  and  heart. 

7  L.  R.  A.  736,  CALLEN  v.  JUNCTION  CITY,  43  Kan.  627,  23  Pac.  652. 
Delegation  of  legislative  power. 

Followed  in  Huling  v.  Topeka,  44  Kan.  579,  24  Pac.  1110;  Emporia  v.  Ran- 
dolph, 56  Kan.  118,  42  Pac.  376;  Eskridge  v.  Emporia,  63  Kan.  369,  65  Pac. 
694,  —  holding  finding  of  district  judge  as  to  extension  of  city  limits  a  judicial 
duty. 

Cited  in  Hurla  v.  Kansas  City,  46  Kan.  745,  27  Pac.  143,  holding  power  to  ap- 
prove, disapprove,  or  modify  ordinance  extending  city  limits,  not  a  delegation  of 
legislative  power;  Pelletier  v.  Ashton,  12  S.  D.  372,  81  N.  W.  735,  upholding  right 
of  court  to  exclude  from  proposed  city  limits  large  tracts  of  cultivated  land; 
State  ex  rel.  Godard  v.  Johnson,  61  Kan.  841,  49  L.  R.  A.  674,  60  Pac.  1068  (dis- 
senting opinion),  majority  holding  statute  creating  court  of  visitation  uncon- 
stitutional as  commingling  legislative,  judicial,  and  executive  functions;  Re 
North  Milwaukee,  93  Wis.  629,  631,  33  L.  R.  A.  643,  67  N.  W.  1033  (dissenting 
opinion),  majority  holding  determination  of  what  territory  should  be  included 
in  extending  city  limits  exercise  of  legislative  power;  Hutchinson  v.  Leimbach, 
68  Kan.  39,  63  L.R.A.  631,  footnote,  p.  630,  74  Pac.  598,  holding  act  permitting  re- 
moval of  territory  from  corporate  limits  of  city,  upon  petition,  unconstitutional; 
O'Neill  v.  Yellowstone  Irrig.  Dist,  44  Mont.  507,  121  Pac.  283,  holding  that 
statute  conferring  alleged  nonjudicial  duties  upon  judges  in  connection  with 
irrigation  law  of  1909  is  not  unconstitutional;  Sanderlin  v.  Luken,  152  N.  C. 
744,  68  S.  E.  225,  holding  an  act  conferring  upon  the  clerk  of  the  superior  court 
power  to  establish  a  drainage  district  is  valid;  Fairview  v.  Giffee,  73  Ohio  St. 


1403  L.  R.  A.  CASliS  AS  AUTHORITIES.  [7  L.R.A.  740 

192,  76  X.  E.  865,  holding  power  conferred  upon  the  courts  to  hear  and  deter- 
mine questions  as  to  detaching  unplatted  lands  from  cities  and  attachment  of 
same  to  adjacent  townships  is  an  exercise  of  judicial  power;  New  Orleans  & 
N.  W.  R.  Co.  v.  Vidalia,  117  La.  573,  42  So.  139,  holding  power  to  determine, 
in  a  given  case,  represented  by  parties  having  property  or  other  rights  at  stake, 
and  independent  of  the  exercise  of  the  enacting  power,  is  judicial ;  Re  Counties 
Comprising  Seventh  Judicial  Dist.  22  Okla.  448,  98  Pac.  557,  holding  courts  may 
determine  whether  a  municipal  corporation  shall  be  created,  or  adjoining  ter- 
ritory annexed;  Denny  v.  Des  Moines  County,  143  Iowa,  474,  121  N.  W.  1066, 
holding  statutes  can  be  upheld  only  where  they  leave  to  the  courts  the  deter- 
mination of  questions  of  fact,  as  distinguished  from  the  exercise  of  a  general 
discretion  involving  the  public  interests;  State  ex  rel.  Taylor  v.  Missouri  P.  R. 
Co.  76  Kan.  484,  92  Pac.  606,  holding  an  act  conferring  upon  the  court  power 
by  mandamus  proceedings  to  force  compliance  with  rules  of  warehouse  and 
railroad  commission  is  a  valid  exercise  of  judicial  power;  Henrico  County  v. 
Richmond,  106  Va.  299,  117  Am.  St.  Rep.  1001,  55  S.  E.  683,  holding  an  act, 
providing  for  extension  of  corporate  limits  of  a  city  and  conferring  upon  the 
circuit  courts  within  the  territory  power  to  ascertain  necessity  and  expediency 
•of  incorporation,  is  valid;  Hutchinson  v.  Leimbach,  68  Kan.  39,  63  L.R.A.  630, 
104  Am.  St.  Rep.  384,  74  Pac.  598,  holding  an  act  providing  for  removal  of  any 
tract  of  land  from  corporate  limits  upon  petition  and  after  published  notice, 
when  district  court  shall  find  no  public  or  private  rights  are  effected  injuriously, 
Is  invalid  as  conferring  legislative  power  on  court. 

Cited  in  footnote  to  Re  North  Milwaukee,  33  L.  R.  A.  638,  which  holds  void 
act  requiring  court  to  determine  whether  or  not  territory  should  be  incorporated 
as  village. 

•Cited  in  note   (11  L.  R.  A.  779)  on  extension  of  city  limits. 

Disapproved  in  Re  Xorth  Milwaukee,  93  Wis.  625,  33  L.  R.  A.  642,  67  N.  W. 
1033,   holding  act   of   determining  the   advisability   of   incorporation   and   fixing 
boundaries  not  determination  of  question  of  fact,  but  exercise  of  legislative  dis- 
cretion. 
General    lavrs. 

Cited  in  Conklin  v.  Hutchinson,  65  Kan.  584,  70  Pac.  587,  conceding  that  pro- 
visions for  organization  of  cities  must,  under  state  Constitution,  be  made  by 
general  law;  Paul  v.  Walkerton,  150  Ind.  570,  50  N.  E.  725,  to  point  general 
laws  imposing  conditions  on  annexation  of  territory,  and  vesting  power  in  boards 
or  courts  to  determine  question,  are  valid. 

Cited  in  note  (27  L.  R.,  A.  743)   on  annexation  by  speciil  law. 
Dm*    process   of   law. 

Cited  in  notes  (27  L.R.A.  743)  on  taking  property  without  due  process  of  law; 
(44  L.  ed.  U.  S.  395)  on  power  of  legislature  to  annex  rural  lands  to  munici- 
palities. 

7  L.  R.  A.  740,  BROCKWAY  v.  PETTED,  79  Mich.  620,  45  N.  W.  61. 
Liability  of  surety  on  liquor  bond. 

Cited  in  Coleman  v.  People,  78  111.  App.  215,  holding  liability  of  sureties  on 
liquor  dealer's  bond  continues  during  time  mentioned  in  bond;  Wright  v.  Treat, 
83  Mich.  115,  47  X.  W.  243,  holding  surety  on  liquor  bond  not  discharged  by  re- 
moval from  corporation  limits,  nor  because  principal  notified  to  file  new  bond 
.and  discontinue  business  in  meantime. 

Cited  in  note   (10  L.  R.  A.  81,  82)   as  to  liquor  bonds. 


7  L.R.A.  740]  L.  R.  A.  CASES  AS  AUTHORITIES.  1404 

Recital  as  covenant  or  promise. 

Cited  in  People  use  of  Houghton  v.  Xewberry,  152  Mich.  299,  116  N.  W.  419 
(dissenting  opinion),  on  effect  to  be  given  recitals  in  bond. 

Distinguished  in  Monks  v.  Provident  Inst.  for  Savings,  64  N.  J.  L.  89,  44  Atl. 
968,  holding  recital  will  not  constitute  covenant  or  promise  unless  such  was  in- 
tention of  parties,  and  it  must  contain  all  the  elements  of  a  contract. 
Estoppel. 

Cited  in  Lyon  Bros.  &  Co.  v.  Stern,  K.  &  B.  110  La.  478,  34  So.  641,  holding 
corporation  and  surety,  in  action  on  auctioneer's  bond,  estopped  from  asserting 
that  corporation  could  act  as  auctioneer;  Kirkpatrick  v.  Phillips,  162  Mich.  254, 
127  N.  W.  340,  holding  that  sureties  on  bond  of  saloonkeeper  are  estopped  to 
deny  liability  thereon,  because  irregularity  in  execution,  where  saloon  business 
was  conducted  under  it. 

7  L.  R,  A.  743,  SANDERS  v.  BAGWELL,  32  S.  C.  238,  10  S.  E.  946. 
Effect    of    material    alteration. 

Approved  in  Richardson  v.  Fellner,  9  Okla.  521,  60  Pac.  270,  holding  note 
vitiated  by  material  alteration;  Sloan  v.  Latimer,  41  S.  C.  219,  19  S.  E.  491, 
holding  surety  discharged  by  extension  of  payment  with  privilege  of  payment 
before  maturity. 

Cited  in  White  v.  Harris,  69  S.  C.  70,  104  Am.  St.  Rep.  791,  48  S.  E.  41, 
holding  the  material  alteration  of  a  note  extinguishes  all  liability  thereon  as 
against  parties  not  consenting. 

Cited  in  footnotes  to  Gleason  v.  Hamilton,  21  L.  R.  A.  210,  which  holds  mort- 
gage not  invalidated  by  alteration  by  attorney  drawing  same  without  mortgagee's 
knowledge;  Brown  v.  Johnson  Bros.  51  L.  R.  A.  403,  which  holds  maker  released 
by  payee's  addition  of  name  of  other  person  as  comaker;  Rochford  v.  McGee,  61 
L.  R.  A.  335,  which  holds  removal  of  note  written  below  perforated  line  on 
application  for  insurance  material  alteration  rendering  it  void;  Simmons  v.  At- 
kinson &,  L.  Co.  23  L.  R.  A.  599,  which  holds  insertion  of  words  ''or  bearer"  and 
place  of  payment  a  material  alteration;  Foxworthy  v.  Colby,  62  L.  R.  A.  393, 
which  holds  insertion  of  word  "gold"  before  word  "dollars"  material  alteration. 

Cited  in  notes   (13  L.R.A.  314)   that  party  producing  instrument  must  account 
for  alterations;    (86  Am.  St.  Rep.  115)    on  unauthorized   alteration  of  written 
instruments. 
Original    consideration    as    supporting:    addendum. 

Approved  in  Harrell  v.  Parrott,  50  S.  C.  23,  27  S.  E.  521,  holding  new  promise 
to  pay  increased  rate  of  interest  supported  by  original  consideration. 

7  L.  R.  A.  745,  FOWLER  v.  ALLEN,  32  S.  C.  229,  10  S.  E.  947. 
Liability   of   conditional   sureties. 

Approved  in  Greenville  v.  Ormand,  51  S.  C.  71,  39  L.  R.  A.  853,  64  Am.  St.  Rep. 
663,  28  S.  E.  50,  holding  absence  of  sureties  on  note  given  to  maker  for  negotia- 
tion will  not  preclude  evidence  by  one  who,  after  payee's  refusal  to  discount  it, 
advanced  money  thereon;  Carter  v.  Moulton,  51  Kan.  15,  20  L.  R.  A.  311,  37 
Am.  St.  Rep.  259,  32  Pac.  633,  holding  one  of  several  makers  of  negotiable  note 
perfect  in  form,  executed  by  several  persons,  presumed  authorized  to  deliver; 
Sullivan  v.  Williams,  43  S.  C.  512,  21  S.  E.  642,  holding  sureties  on  attachment 
bond  delivered  by  principals  to  innocent  obligee  estopped  to  show  forgery  of  sub- 
sequent signatures. 
Liability  as  between  innocent  parties. 

Cited   in   Newman   v.   Scarborough,    115   La.   866,    112    Am.   St.   Rep.   278,   40> 


3405  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  749 

So.  248,  holding  as  between  the  creditor  and  a  guarantor  signing  where  there 
is  error  as  to  subject  matter  the  guarantor  must  answer  to  the  extent  that 
his  error  has  caused  the  loss. 

7  L.  R.  A.  747,  MOYER  v.  DRUMMOND,  32  S.  C.  165,  17  Am.  St.  Rep.  850,  10 

S.  E.  952. 
"Family"   within   homestead   lairs. 

Approved  in  Scott  v.  Mosely  Bros.  54  S.  C.  378,  32  S.  E.  450,  holding  son  caring 
for  widowed  mother  head  of  family  under  homestead  law,  as  against  his  own  cred- 
itors; Holloway  v.  Holloway,  80  Ga.  .379,  11  L.  R.  A.  519,  22  Am.  St.  Rep.  484, 
12  S.  E.  943,  holding  widow  supporting  husband's  children  by  former  wife  head 
of  family  under  homestead  law,  although  such  support  is  voluntary;  Re  Morrison, 
110  Fed.  735,  holding  single  man  residing  with  and  supporting  widowed  mother 
and  minor  brother  entitled  to  homestead  exemption  in  bankruptcy  as  head  of 
family;  Fant  v.  Gist,  36  S.  C.  578,  15  S.  E.  721,  holding  man  supporting  his  de- 
'ceased  wife's  niece,  who  spends  part  of  her  time  out  of  school  with  him,  entitled 
to  homestead  as  head  of  family;  Cross  v.  Benson,  68  Kan.  511,  64  L.R.A.  567,  foot- 
note, p.  560,  75  Pac.  558,  holding  grandchild  living  with  grandparents,  and  de- 
pendent upon  them  for  support,  member  of  their  family. 

Cited  in  Fox  v.  Waterloo  Nat.  Bank,  126  Iowa,  485,  102  N.  W.  424,  holding 
ra  divorced  husband  with  adult  daughter  living  with  him  as  housekeeper  may 
claim  exemptions  under  homestead  law;  Re  McGowan,  170  Fed.  495,  holding  a 
bankrupt,  who  is  a  single  man  living  alone  with  his  parents  living  is  not  a 
head  of  a  family  within  provisions  of  homestead  exemption  law;  Adams  v. 
Clark,  48  Fla.  211,  37  So.  734,  holding  where  grandchild  is  taken  by  grand- 
parents when  a  month  old  who  assume  entire  care,  education  and  control  of  her 
and  she  continues  to  live  with  the  grandfather  until  his  death,  the  grandfather 
•was  legally  head  of  a  family. 

Cited  in  footnotes  to  Bosquett  v.  Hall,  9  L.  R.  A.  351,  which  refuses  homestead 
exemption  because  of  residence  of  children  strangers  in  blood ;  Wilkinson  v.  Mer-. 
rill,  11  L.  R.  A.  632,  which  holds  householder  not  deprived  of  homestead  right  by 
death  of  entire  family;  Cross  v.  Benson,  64  L.R.A.  560,  which  holds  wife  the 
family  of  the  owner  within  meaning  of  the  homestead  laws,  where  husband  and 
wife  occupy  land  belonging  to  him  as  a  homestead. 

Cited  in  notes    (9  L.R.A.  804)    as  to  homestead  exemption;    (4  L.R.A. (N.S.) 
384)    on   what   constitutes   a   "family"   under   homestead   and   exemption   laws; 
(70  Am.  St.  Rep.  107.  109)   on  who  is  head  of  family  within  homestead  law. 
Exemption    in    partnership    property. 

Approved  in  Dennis  v.  Kass,  11  Wash.  356,  48  Am.  St.  Rep.  880,  39  Pac.  656, 
holding  partner  entitled  to  exemption  out  of  partnership  property  when  no  part- 
nership debts  remain  unpaid;  Adams  v.  Church,  42  Or.  274,  59  L.  R.  A.  785,  95 
Am.  St.  Rep.  740,  70  Pac.  1037.  holding  land  acquired  under  timber-culture  claim, 
and  conveyed  to  partnership,  not  liable  for  partnership  debts  contracted  prior  to 
issuance  of  final  certificate. 

Distinguished  in  Ex  parte  Karish,  32  S.  C.  438,  11  S.  E.  298,  holding  partners 
not  entitled  to  exemption  out  of  firm  assets  until  partnership  creditors  satisfied. 

7  L.  R.  A.  749,  WHITAKER  v.  RICHARDS,  134  Pa.  191,  19  Am.  St.  Rep.  684, 

19  Atl.  501. 
Sureties;    instrument  signed  by  part   only  of  obligors  named. 

Cited  in  Gleeson's  Estate,  192  Pa.  283,  44  W.  N.  C.  325,  73  Am.  St.  Rep.  808, 
43  Atl.  1032,  holding  omission  of  one  of  several  obligors  named  in  bond  to  join  in 
^execution  not  defense  as  to  obligors  who  do  sign;  Snyder's  Estate,  7  Kulp,  415, 


7  L.R.A.  749]  L.  R.  A.  CASES  AS  AUTHORITIES.  1406 

holding  no  condition  implied  to  execution  by  each  of  several  obligors  in  bond 
that  same  shall  be  executed  by  all  persons  named  in  it,  before  it  becomes  binding 
upon  any;  Weissport  v.  Welsh,  6  Northampton  Co.  Rep.  246,  holding  omission  of 
tax  collector  to  sign  official  bond  with  sureties  not  release  of  parties  signing; 
Hall  v.  Kintz,  13  Pa.  Co.  Ct.  27,  2  Pa.  Dist.  R.  617,  holding  attachment  bond 
signed  with  firm  name  and  by  one  partner  individually,  with  name  of  one  surety, 
sufficient;  Reed  v.  McGregor,  62  Minn.  97,  64  N.  W.  88,  holding  surety  signing 
under  belief  that  another  person  named  in  bond  will  sign,  but  without  making 
signature  conditioned  on  such  person  signing,  is  bound;  Winters  v.  Robison,  14 
Pa.  Co.  Ct.  265,  holding  existence  of  additional  seal  on  bond  not  sufficient  to 
charge  obligee  with  notice  that  signature  of  surety  is  on  condition  that  another 
signature  be  procured;  Byrod  v.  Svveigart,  20  Lane.  L.  Rev.  276,  holding  note 
signed  on  condition  that  it  should  not  be  binding  unless  signed  by  others  named 
not  enforceable  unless  so  signed;  Maylor  v.  Stene,  96  Minn.  60,  104  N.  W.  685r 
holding  in  absence  of  evidence  to  the  contrary  a  party  who  signs  and  delivers 
an  instrument  is  bound  by  the  obligation  he  assumes  although  it  is  not  signed 
by  all  the  parties  for  whose  signature  it  was  prepared;  Raeder  v.  Monks,  14 
Luzerne  Legal  Reg.  Rep.  348,  holding  on  the  facts,  that  a  condition,  if  there 
was  one,  for  signature  by  another  had  been  waived;  Reed  v.  Coughran,  21  S.  D, 
260,  111  N.  W.  559,  holding  that  both  parties  are  bound  by  written  contract 
executed  by  one  of  them  only,  but  accepted,  retained  and  acted  on  by  others. 

Cited  in  footnote  to  Hurt  v.  Ford,  41  L.  R.  A.  823,  which  denies  right  to  make 
subsequent  signature  of  another  person  essential  to  validity  of  note  delivered  to 
payee  or  his  agent. 

Cited  in  notes  (45  L.  R.  A.  325)  on  conditional  execution  of  contracts;  (8  L~ 
R.  A.  735)  on  suretyship. 

Distinguished  in  Yohn  v.  Shumaker,  28  Pittsb.  L.  J.  N.  S.  127,  5  Pa.  Super.  Ct_ 
322,  41  W.  N".  C.  30,  holding  surety  delivering  signed  obligation  to  payee,  with 
understanding  that  he  is  to  procure  signature  of  principal,  who  refuses  to  sign, 
not  bound. 
Parol  evidence  to  vary  writing. 

Cited  in  note  (11  Eng.  Rul.  Cas.  234)  on  parol  evidence  to  contradict  bonds. 

7   L.  R.  A.  750,  PEPPER  v.   CAIRNS,   133   Pa.    114,   19  Am.   St.   Rep.   625,   19^ 

Atl.  336. 
Misappropriation  of  money  by  ag-ent. 

Cited  in  Lerch  v.  Bard,  162  Pa.  318,  34  W.  N.  C.  540,  29  Atl.  890,  holding  note 
not  necessarily  invalidated  for  want  of  delivery,  where  agent  for  lender  and  bor- 
rower deposited  proceeds  to  individual  account;  Kirchner  v.  Schmid,  7  Misc.  461, 
25  N.  Y.  Supp.  85,  holding  plaintiff  cannot  have  mortgage  canceled  which  his 
agent  delivered  to  defendant  and  received  value  for;  Himes  v.  Herr,  13  Lane.  L. 
Rev.  15,  holding  fact  that  attorney  is  usually  employed  by  lender  to  receive 
moneys  not  sufficient  authority  to  collect  in  particular  case. 

Cited  in  note    (19  Am.  St.  Rep.   627)    on  who  must  lose  by  embezzlement  of 
agent  acting  in  double  capacity. 
Declarations  of  agent  a*i  to  authority. 

Cited  in  Harvey  v.  Schuylkill  Real  Estate  Title  Ins.  &  T.  Co.  24  Pa.  Co.  Ct. 
599,  holding  authority  of  agent  not  provable  by  his  declarations. 
Proof  of  agency. 

Cited  in  Stevenson  v.  Henning,  34  Pa.  Super.  Ct.  187,  on  facts  sufficient  to 
infer  a  legal  right  in  one  to  act  as  agent;  Re  Schoeller,  36  Pittsb.  L.  J.  X.  S. 


1407  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  752 

192,    holding   declarations   of   husband   inadmissible   to   show   that   he   is   agent 
for  wife. 

7  L.  R.  A.  752,  PIERCE  v.  CLELAND,  133  Pa.  189,  19  Atl.  352. 
Servitudes;    when    license   revocable. 

Cited  in  Willis  v.  Erie  City  Pass.  R.  Co.  188  Pa.  67,  41  Atl.  307,  holding  license 
irrevocable  when  licensee -has  expended  money  upon  faith  of  it;  Bryn  Mawr 
Hotel  Co.  v.  Baldwin,  12  Montg.  Co.  L.  Rep.  149,  holding  conveyance  of  part  of 
estate  implies  grant  or  reservation,  as  case  may  be,  of  apparent  servitudes  created 
by  vendor  in  favor  of  one  portion  against  another,  if  intended  to  be  permanent; 
Allegheny  Nat.  Bank  v.  Reighard,  32  Pittsb.  L.  J.  N.  S.  52,  holding  common  en 
trance  to  two  buildings  on  adjoining  lots  to  be  in  nature  oi  easement  usable  as 
long  as  building  stood;  Western  U.  Teleg.  Co.  v.  Pennsylvania  Co.  129  ?ed.  858, 
holding  that  license  in  writing  to  occupy  lands  of  railroad  company  for  telegraph 
line,  when  ripened  by  use  into  interest  in  realty,  becomes  nonrevocable ;  Binder 
v.  Weinberg,  94  Miss.  827,  48  So.  1013,  holding  an  agreement  and  use  of  building 
in  a  certain  way  constituted  an  executed  license  such  as  to  estop  grantee  in 
deed  to  take  over  part  of  hallway  and  erect  room  interfering  with  passage  and 
light;  Western  U.  Teleg.  Co.  v.  Pennsylvania  Co.  68  L.R.A.  977,  64  C.  C.  A. 
285,  129  Fed.  858,  holding  an  agreement  for  construction  and  operation  of  a 
telegraph  line  on  railroad  company's  right  of  way,  and  use  of  such  line,  for 
many  years  created  an  easement  not  revocable  at  will  of  railroad  company. 

Cited  in  notes  (10  L.  R.  A.  487)  on  effect  of  executed  license;  (49  L.  R.  A. 
514)  on  revocability  of  license  to  maintain  burden  on  land,  after  licensee  in- 
curred expense;  (31  Am.  St.  Rep.  718)  on  nature  and  revocation  of  parol  li- 
censes; (16  Eng.  Rul.  Cas.  80)  on  revocability  of  license. 

Distinguished  in  Baldwin  v.  Taylor,  166  Pa.  514,  31  Atl.  250,  holding  license 
to  adjoining  proprietor  to  use  stairway,  for  temporary  purpose,  in  consideration 
of  conveyance  of  land,  not  assignable. 
Rights  of  purchaser  of  servient  estate. 

Cited  in  Hunter  v.  Wilcox,  23  Pa.  Co.  Ct.  194,  and  Geible  v.  Smith,  146  Pa.  285, 
29  W.  N.  C.  467,  28  Am.  St.  Rep.  796,  23  Atl.  437,  holding  purchaser  of  real  es- 
tate takes  subject  to  continuous  and  apparent  servitude,  in  absence  of  express 
reservation. 

Cited  in  notes  (8  L.R.A.  (N.S. )  418)  on  physical  conditions  charging  pur- 
chaser of  servient  estate  with  notice  of  easement;  (13  L.R.A.(N.S.)  132)  on 
!">~-<'ssion  of  easement  as  notice  of  title.  . 

r.i|iii(>  :    jurisdiction. 

Cited  in  Manbeck  v.  Jones,  190  Pa.  175,  42  Atl.  536,  Affirming  21  Pa.  Co.  Ct. 
304,  holding  equity  will  enjoin  obstruction  of  public  highway,  before  question 
of  right  decided  at  law,  when  evidence  conclusive  as  to  existence  of  highway,  and 
action  for  damages  inadequate;  Casey  v.  Canning.  17  Pa.  Dist.  R.  390,  holding 
where  owner  conveys  adjoining  lots  at  different  times  to  different  parties  and 
a  privy  wall  and  building  on  one  lot  had  been  used  for  years  continuously  by 
other  lot  purchaser  such  lot  was  subject  to  the  servitude. 
Creation  and  o-iiveyance  of  easements. 

Cited  in  notes  (26  L.R.A.  (X.S.)  366)  on  easements  created  by  severance  of 
tract  with  apparent  benefit  existing;  (81  Am.  St.  Rep.  768;  136  Am.  St.  Rep. 
698)  on  creation  and  conveyance  of  easements  appurtenant;  (122  Am.  St.  Rep. 
210;  10  Eng.  Rul.  Cas.  59)  as  to  when  grant  of  an  easement  will  be  implied. 


7  L.R.A.  755]  L.  R.  A.  CASES  AS  AUTHORITIES.  1408 

7  L.  R.  A.  755,  BROOKHAVEN  v.  SMITH,  118  N.  Y.  634,  23  N.  E.  1002. 
Estoppel. 

Cited  in  Blumenauer  v.  O'Connor,  32  Misc.  20,  G6  X.  Y.  Supp.  137,  refusing  to 
order  removal  of  encroaching  wall  where  line  practically  determined  by  plaintiff 
at  time  of  construction;  Bloch  v.  Sammons,  37  Or.  604,  62  Pac.  290,  holding 
party  innocently  misrepresenting  title  to  property  intending  to  influence  pur- 
chaser estopped  to  assert  contrary  title;  Moore  v.  Brownfield,  10  Wash.  444,  39 
Pac.  113,  holding  party  in  honest  belief  that  title  in  government,  inducing  an- 
other to  settle  and  improve  land,  estopped  to  assert  title;  Wetmore  v.  Royal,  55 
Minn.  168,  56  N.  W.  594,  refusing  to  correct  mistaken  date  in  mechanic's  lien  rec- 
ord as  against  purchaser  on  foreclosure  misled  thereby;  Hazard  v.  Wilson,  22 
Misc.  401,  50  N.  Y.  Supp.  280,  holding  mortgagee  estopped  to  foreclose  against 
improved  acre  covered  by  mortgage  of  tract  where  unselected  acre  released  for 
cash;  Teachers'  Bldg.  &  L.  Asso.  v.  Severance,  41  App.  Div.  316,  58  N.  Y.  Supp. 
464,  holding  acquiescence  in  mortgagor's  deduction  of  interest  each  month  ior 
six  years  estops  association  to  deny  right;  Moore  v.  Nye,  49  N.  Y.  S.  R.  170,  21 
N.  Y.  Supp.  94,  holding  mortgagee  under  deed  absolute  in  form  estopped  by 
denial  of  interest  in  property  to  assert  title  against  mortgagor's  Vendee;  Mattes 
v.  Frankel,  157  N.  Y.  609,  68  Am.  St.  Rep.  804,  52  N.  E.  585,  Reversing  65  Hun; 
206,  20  N.  Y.  Supp.  145,  holding  owner  of  adjoining  lots  estopped  to  deny  vendee's 
right  of  way  to  lot  sold,  where  pointed  out  during  negotiations,  though  not  in- 
cluded in  deed;  Williamson  v.  Jones,  39  W.  Va.  269,  25  L.  R.  A.  237,  19  S.  E. 
436,  holding  owner  causing  void  judicial  sale  of  land  and  receiving  proceeds  can- 
not attack  vendee's  title  after  improvements  made;  Morris  v.  Wheat,  8  App.  D. 
C.  387,  holding  party  granting  as  guardian,  but  warranting  in  own  right,  es- 
topped to  deny  grantee's  title;  Re  Turfler,  1  Misc.  71,  1  Power,  402,  23  N.  Y. 
Supp.  135,  holding  heir  assenting  to  payment  in  accordance  with  intent  of  testa- 
tor estopped  to  contest  executor's  account;  Williams  v.  Whittell,  69  App.  Div. 
348,  74  N.  Y.  Supp.  820,  holding  party  receiving  benefits  under  sealed  agreement 
not  to  attack  will  estopped  to  assert  invalidity  for  want  of  consideration;  Craw- 
ford v.  Ormsbee,  6  App  Div.  52,  39  N.  Y.  Supp.  740,  holding  heir  estopped  from 
contesting  will,  where  conveyance  was  made  to  him  by  reversioner  on  strength  of 
his  statement  that  he  would  make  no  claim  against  the  estate;  Dovale  v.  Acker- 
mann,  39  N.  Y.  S.  R.  518,  15  N.  Y.  Supp.  196,  holding  party  obtaining  payments 
through  admission  that  payer  not  legally  liable  estopped  to  assert  liability; 
Munson  v.  Magee,  22  App.  Div.  345,  47  N.  Y.  Supp.  942,  holding  party  acquiesc- 
ing in  apparent  valid  release  of  contract  estopped  to  assert  invalidity  against 
party  incurring  expense  in  reliance  thereon;  Dr.  David  Kennedy  Corp.  v.  Ken- 
nedy, 36  App.  Div.  603,  55  N.  Y.  Supp.  917,  enjoining  party  selling  good  will  of 
patent-medicine  business  employing  his  name,  from  receiving  mail  addressed 
to  him;  Dwight  v.  Williams,  25  Misc.  670,  55  N.  Y.  Supp.  201,  holding  creditors 
estopped  where  debtor  could  not  assert  invalidity  of  oral  contract  acted  upon 
by  third  parties;  Tobias  v.  Morris,  126  Ala.  551,  28  So.  517,  holding  estoppel 
for  jury  where  wife  made  deposit,  but  permitted  husband  to  give  check  signa- 
ture to  teller;  Krakauer  v.  Chapman,  16  App.  Div.  125.  45  X.  Y.  Supp.  127  (dis- 
senting opinion),  majority  holding  failure  of  creditor  for  two  months  to  no- 
tify party  authorizing  purchaser  to  draw  on  him  for  amount  of  purchase,  that 
first  draft  not  in  full,  works  no  estoppel;  Bank  of  Monongahela  Valley  v.  Wes- 
ton,  172  N.  Y.  267,  64  N.  E.  946,  holding  partner  permitting  use  of  firm  name 
as  accommodation  indorser  estopped  from  denying  validity  of  such  indorsement 
made  after  dissolution  of  partnership;  McGuire  v.  Hall,  78  App.  Div.  643,  80 
N.  Y.  Supp.  1139,  holding  owner  bound  by  arbitrary -agreement  with  architect 


3409  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  759 

as  to  cost  and  exchange  value  of  building,  in  estimating  commissions;  Western 
New  York  &  P.  R.  Co.  v.  Rea,  83  App.  Div.  579,  81  N.  Y.  Supp.  1093,  holding 
owner,  inducing  lessee  to  believe  that  premises  were  owned  by  her  husband  and 
permitting  substantial  improvements,  estopped  to  deny  validity  of  lease;  Horton 
v.  Erie  Preserving  Co.  90  App.  Div.  261,  85  N.  Y.  Supp.  503,  holding  subscriber 
of  funds  for  building  of  factory  estopped  from  avoiding  same  for  delay  in  con- 
struction, where  he  permitted  building  to  go  on  without  protest;  Re  Turfler,  1 
Power,  402,  1  Misc.  71,  23  N.  Y.  Supp.  135,  holding  residuary  legatees,  assent- 
ing to  certain  payments,  estopped  from  claiming  they  were  made  illegally; 
Deering  v.  Schreyer,  110  App.  Div.  206,  97  X.  Y.  Supp.  14,  holding  when  party 
by  declaration  or  conduct  has  induced  another  to  act  in  a  particular  manner, 
to  his  injury,  he  will  not  thereafter  be  permitted  to  deny  or  repudiate;  American 
Exch.  Nat.  Bank  v.  Woodlawn  Cemetery,  120  App.  Div.  130,  105  N.  Y.  Supp. 
305,  holding  a  cemetery  association  liable  to  an  innocent  purchaser  of  bonds 
where  it  permitted  an  over  issue  by  its  officer  through  failure  to  examine  officer's 
books  for  more  than  seven  years;  Dickinson  v.  Blake,  116  App.  Div.  548,  101 
N.  Y.  Supp.  709,  holding  remaindermen  estopped  to  deny  that  mortgage  covered 
their  interest  where  they  consented  to  mortgage  on  their  interest  to  secure  loan 
to  their  mother  and  mortgagee  was  induced  by  their  attorney  to  believe  their 
interest  wTas  covered;  Todaro  v.  Somerville  Realty  Co.  138  App.  Div.  8,  122  X. 
Y.  Supp.  509,  to  the  point  that  question  of  estoppel  may  become  for  court  and 
not  for  jury,  even  in  action  in  ejectment;  Dallett  v.  Ogden,  20  Pa.  Dist.  R.  850, 
holding  that  declarations  that  one  is  partner,  not  communicated  to  person  ex- 
tending credit,  are  not  relevant  to  hold  alleged  partner  by  equitable  estoppel. 

Cited  in  footnote  to  Old  Times  Distillery  Co.  v.  Casey,  42  L.  R.  A.  466,  which 
holds  right  to  enjoin  use  of  trade-mark  lost  by  ten  years'  delay. 

Cited  in  notes  (13  L.  R.  A.  270)  on  what  constitutes  equitable  estoppel;  (13 
L.R.A.  271)  on  doctrine  of  estoppel  in  pais;  (24  Am.  St.  Rep.  212)  on  estoppel 
by  representations;  (27  Am.  St.  Rep.  295)  on  estoppel  against  owner;  (11  Eng. 
Rul.  Gas.  103;  15  Eng.  Rul.  Cas.  417)  on  estoppel  by  conduct. 

Distinguished  in  Marden  v.  Dorthy,  160  N.  Y.  59,  46  L.  R.  A.  701,  54  N.  E. 
726,  holding  party  not  estopped  even  against  bona  fide  mortgagees  to  deny  sig- 
nature to  mortgage  where  obtained  by  trick  and  without  negligence;  Card  v. 
Moore,  68  App.  Div.  336,  74  N.  Y.  Supp.  18,  holding  parties  forming  imperfect 
corporation  not  estopped,  as  between  themselves,  by  contract  making  it  rvirty, 
to  deny  its  existence;  Syracuse  Solar  Salt  Co.  v.  Rome,  W.  &  O.  R.  Co.  67  Hun, 
162,  22  N.  Y.  Supp.  321,  holding  owner  not  estopped  by  silence  at  foreclosure  sale 
of  street  railway  to  assert  title  to  highway  against  purchaser:  Hey  v.  Collman, 
78  App.  Div.  587,  79  N.  Y.  Supp.  778,  holding  claimant  of  right  of  way  not  es- 
topped from  asserting  title  by  adverse  possession  because  silent  at  sale  of  serv- 
ient  tenement. 
Tide  lands. 

Cited  in  Rockaway  Park  Improv.  Co.  v.  New  York,  140  App.  Div.  170,  124 
N.  Y.  Supp.  1096,  to  the  point  that  title  to  lands  beneath  waters  of  Jamaica 
bay  is  in  sovereign  and  its  grantees. 

Cited  in  note   (64  L.  R.  A.  336)   on  municipal  ownership  of  tide  lands. 

7  L.  R.  A.  759,  WELLS  v.  SALINA,  119  N.  Y.  280,  23  N.  E.  870. 

On  a  subsequent  appeal  in  71  Hun,  565,  25  N.  Y.  Supp.  134,  plaintiff  is  held 
to  have  right  of  action  as  equitable  assignee  of  original  claim. 
Powers    of    municipality. 

Approved  in  People  ex  rel.  Coon  v.  Wood,  35  N.  Y.  S-  R.  843,  12  N.  Y.  Supp. 
436,  holding  town's  resolution  to  pay  specified  amount  per  day  for  prosecution 
L.R.A.  Au.  Vol.  I.— 89. 


7  L.R.A.  759]  L.  R.  A.  CASES  AS  AUTHORITIES.  1410 

of  criminal  actions  ineffectual  to  l>\u(i  it  in  absence  of  statutory  authority; 
People  ex  rel.  Bowles  v.  Burrell,  14  Misc.  220.  35  N.  Y.  Supp.  608,  holding  that 
unauthorized  highway  commissioners  cannot  pledge  town's  credit  for  repair 
of  highways  and  bridges,  notwithstanding  local  custom;  Queens  County  Water 
€o.  v.  Monroe,  83  App.  Div.  110,  82  N.  Y.  Supp.  610,  holding  that  preliminary 
requirements  of  statute  authorizing  city  to  acquire  land  for  increasing  water 
•supply  must  be  strictly  complied  with;  Water  Comrs.  v.  Westchester  County 
Waterworks  Co.  176  N.  Y.  251,  68  N.  E.  348,  holding  appraisal  of  property  of 
waterworks  company,  based  on  illegal  contract  with  village,  invalid. 

Cited  in  People  ex  rel.  Yost  v.  Becker,  203  N.  Y.  205,  96  N.  E.  381,  holding 
that  legislature  has  no  power  to  create  legal  municipal  corporations  other  than 
towns,  counties,  cities  and  villages. 

Cited  in  note  (21  Am.  St.  Rep.  373)   on  powers  of  municipal  corporations. 

Distinguished  in  Birge  v.  Berlin  Iron  Bridge  Co.  133  N.  Y.  486,  31  N.  E.  609, 
holding  act  permitting  special  town  meetings  to  vote  on  raising  and  appropriat- 
ing moneys  for  bridges  did  not  abolish  pre-existing  limitation  upon  amount  of 
taxation;  Mulnix  v.  Mutual  Ben.  L.  Ins.  Co.  23  Colo.  80,  33  L.  R.  A.  832,  46 
Pac.  123,  holding  state  not  liable  on  quantum  meruit  for  goods  received  under  il- 
legal purchase. 
To  liorrow  money. 

Approved  in  People  ex  rel.  Read  v.  Smithville,  85  Hun,  116,  32  X.  Y.  Supp. 
•668,  holding  town  not  liable  upon  indebtedness  because  vote  in  incurring  same  not 
by  ballot  as  prescribed;  Scott  v.  Twombly,  20  Misc.  653,  46  N.  Y.  Supp.  1084, 
holding  act  authorizing  villages  to  acquire  lands  for  parks  does  not  authorize 
issuing  of  bonds;  Jamaica  Sav.  Bank  v.  New  York,  61  App.  Div.  471,  70  N.  Y. 
Supp.  967  (dissenting  opinion),  majority  holding  that  town  may  borrow  money 
for  authorized  purpose  where  supervisors  may  authorize  town  to  borrow  for  town 
purposes. 

Cited  in  Oneida  v.  King,  116  App.  Div.  37,  101  N.  Y.  Supp.  239,  holding  the 
power  of  a  city  to  issue  bonds  to  relieve  property  owners  of  assessments  against 
their  property  for  public  improvements,  must  be  derived  from  legislative  enact- 
ment; Luther  v.  Wheeler,  73  S.  C.  90,  4  L.R.A.  (N.S.)  750,  52  S.  E.  874,  6  A. 
&  E.  Ann.  Cas.  754,  holding  power  to  borrow  money  is  not  a  necessary  incident 
of  municipal  life,  and  hence  does  not  exist  unless  expressly  given  or  as  incident 
to  exercise  of  a  power  or  duty  imposed  or  conferred;  Butts  County  v.  Jackson 
!Bkg.  Co.  129  Ga.  806,  15  L.R.A. (N.S.)  572,  121  Am.  St.  Rep.  244,  60  S.  E.  149, 
Hiolding  the  constitutional  scheme  of  defraying  current  expenses  by  taxation  ex- 
cludes the  idea  of  paying  them  in  any  other  way;  McCurdy  v.  Shiawassee,  154 
Mich.  565,  118  N.  W.  625,  holding  counties  have  no  power  to  borrow  money  to 
pay  current  expenses;  Acme  Road  Machinery  Co.  v.  Bridgewater,  104  App.  Div. 
•604,  93  N.  Y.  Supp.  494  (dissenting  opinion),  on  power  of  town  to  incur  lia- 
bility not  expressly  authorized. 

Cited  in  notes  (9  L.R.A.  497)  on  power  of  municipal  corporations  to  borrow 
money;  (51  Am.  St.  Rep.  828,  829)  on  municipal  bonds  in  hands  of  bona  fide 
holders. 

Distinguished  in  Birge  v.  Berlin  Iron  Bridge  Co.  133  N.  Y.  486,  31  N.  E.  609, 
holding  that  special  town  meeting  called  for  considering  question  of  raising  and 
appropriating  moneys  may  apply  for  authority  to  borrow  money. 

Limited  in  New  York  &  R.  Cement  Co.  v.  Keator,  62  App.  Div.  580,  71  N.  Y. 
Supp.  185,  holding  that  submission  of  proposition  to  raise  money  includes  rais- 
:ing  by  issuing  bonds  or  other  obligations- 


1411  L.  E.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  765 

7  L.  R.  A.  765,  GARY  LIBRARY  v.  BLISS,  151  Mass.  364,  25  N.  E.  902. 
Municipalities  as   trustees. 

Cited  in  note   (16  L.  R.  A.  695)   on  authority  of  legislature  to  remove  munici- 
pality from  trusteeship. 
Public    charities. 

Cited  in  Davis  v.  Barnstable,  154  Mass.  225,  28  N.  E.  165,  holding  gift  to  pro- 
mote public  education  constitutes  public  charity;  St.  Paul's  Church  v.  Atty. 
Gen.  164  Mass.  198,  41  N.  E.  231,  upholding  gift  to  library,  first  mentioning 
limited  number  of  beneficiaries,  but  finally  providing  for  use  by  public;  Woman's 
•Christian  Nat.  Library  Asso.  v.  Fordyce,  79  Ark.  538,  86  S.  W.  417,  holding 
public  libraries  fall  within  the  spirit  and  analogy  of  charitable  trusts;  Molly 
Varnum  Chapter,  D.  A.  R.  v.  Lowell,  204  Mass.  492,  26  L.R.A.(N.S-)  709,  90 
N.  E.  893,  holding  a  corporation  chartered  to  encourage  and  promote  historical 
research  and  publication  of  results  without  pecuniary  profit  or  charge  comes 
-within  statutory  category  and  its  property  is  exempt;  Portneuf  Irrigating  Co. 
v.  Budge,  16  Idaho,  132,  100  Pac.  1046,  holding  fact  that  one  canal  will  irrigate 
20,000  acres  while  another  will  irrigate  only  2500  acres,  does  not  make  it  a 
more  necessary  public  use. 

Cited  in  footnote  to  People  ex  rel.  Atty.  Gen.  v.  Dashaway  Asso.  12  L.  R.  A. 
117,  which  holds  promotion  of  cause  of  temperance  too  vague  description  of 
purpose  for  which  corporation  formed. 

Cited  in  note  (13  L.  R.  A.  218)  on  power  of  municipal  corporation  to  take  and 
administer  property  in  trust  for  charitable  uses. 
Gifts   for  benefiting   inhabitants   of   town.    ' 

Cited  in  Sears  v.  Chapman,  158  Mass.  401,  35  Am.  St.  Rep.  502,  33  N.  E. 
604,  upholding  gift  for  public  charity,  the  whole  to  be  under  exclusive  control 
of  inhabitants  of  town;  Boston  v.  Doyle,  184  Mass.  380,  68  N.  E.  851,  holding 
title  to  charitable  fund  given  by  Benjamin  Franklin  to  town  of  Boston  to  be 
in  city  of  Boston. 
Obligations  arising?  ont  of  acceptance  of  gift. 

Cited  in  Quincy  v.  Atty.  Gen.  160  Mass.  434,  35  X.  E.  1066,  holding  direction 
in  charitable  gift  requiring  town  to  guarantee  fund  with  6  per  cent  interest 
not  requiring  guaranty  of  specified  interest;  Atty.  Gen.  ex  rel.  Spalding  v. 
Nashua,  67  N.  H.  480,  32  Atl.  852,  holding  by  acceptance  of  gift  city  agrees 
to  perform  conditions  attached  to  it. 
Power  of  courts  to  modify  details  of  management  of  charitable  trusts. 

Cited  in  Lackland  v.  Walker,  151  Mo.  259,  52  S.  W.  414,  upholding  power  of 
•court  of  chancery  to  alter  administrative  details  of  public  charity  when  rea- 
sonably necessary;  Crow  ex  rel.  Jones  v.  Clay  County,  196  Mo.  266,  95  S.  W. 
369,  on  exercise  of  discretion  in  carrying  out  requirements  of  a  charity;  Wor- 
cester City  Missionary  Soc.  v.  Memorial  Church,  186  Mass.  538,  72  N.  E.  71, 
holding  where  language  is  imperative  in  giving  the  care,  custody  and  manage- 
ment to  deacons  the  corporation  cannot  deprive  them  of  the  management. 

Distinguished   in   Ware   v.   Fitchburg,   200   Mass.    67,   85   N.    E.   951,   holding 
where   testator   left   money  to  found   hospital,   merely  expressing  desire  that   a 
substantial    building   be  erected,   a   wide   discretion  ^remained   with   agents   and 
officers  in  exercise  of  the  fund. 
Diversion  of  trust. 

Cited  in  Codman  v.  Crocker,  203  Mass.  150,  25  L.R.A.(N.S.)  990,  89  N.  E. 
177,  on  appropriation  to  a  different  use  of  property  dedicated  to  a  public  use 
for  a  particular  purpose. 


7  L.R.A.  765]  L.  R.  A.  (ASKS  AS  AUTHORITIES.  1412 

Power  of   majority   to   bind   board. 

Cited  in  footnote  to  Honaker  v.  Board  of  Education,  32  L.  R.  A.  413,  which 
denies  power  of  members  of  board  of  education  acting  separately  to  bind  them- 
selves as  board. 
Power   of   state   or   corporation    to    take    property. 

Cited  in  Woodward  v.  Central  Vermont  R.  Co.  180  Mass.  603,  62  X.  E.  1051, 
holding  amendatory  act  requiring  corporation  purchaser  at  foreclosure  sale  to 
pay  judgments  against  mortgagor  void;  Old  Colony  R.  Co.  v.  Framingham  Water 
Co.  153  Mass.  563,  13  L.  R.  A.  334,  27  N.  E.  662,  holding  legislature  may  author- 
ize taking  of  land  for  public  use  previously  appropriated  by  legislative  author- 
ity to  different  publi«  use;  Chicago,  B.  &  Q.  R.  Co.  v.  Illinois.  200  U.  S.  599, 
50  L.  ed.  612,  26  Sup.  Ct.  Rep.  341,  4  A.  &  E.  Ann.  Cas.  1175  (dissenting  opin- 
ion), on  taking  property  for  public  purposes. 

Cited  in  footnotes  to  Re  Brooklyn,  26  L.  R.  A.  270,  which  upholds  act  author- 
izing city  to  acquire  property  of  water  company;  Butte,  A.  &  P.  R.  Co.  v.  Mon- 
tana U.  R.  Co.  31  L.  R.  A.  298,  which  holds  railroad  land  not  actually  used  or 
necessary  subject  to  condemnation  by  other  railroad;  Diamond  Jo  Line  Steamers 
v.  Davenport,  54  L.  R.  A.  859,  which  authorizes  condemnation  for  public  wharf 
of  land  used  by  carrier  as  landing  place;  Denver  Power  &  Irrig.  Co.  v.  Colorado 

6  S.  R.  Co.  60  L.  R.  A.  383,  which  denies  power  of  reservoir  company  to  con- 
demn   land    devoted    to    purpose   of    railroad    unless    public    necessity    requires; 
Cleveland,  C.  C.  &  St.  L.  R.  Co.  v.  Ohio  Postal  Teleg.   Cable  Co.  62  L.  R.  A. 
941,  which  holds  burden  upon  telegraph  company  to  show  right  of  way  sought 
in  railroad  property  will  not  interfere  with  railroad's  use  of  right  of  way. 
Judicial  power  over  eminent  domain. 

Cited  in  notes  (88  Am.  St.  Rep.  935,  940)  on  existence  of  publicc  use  as 
question  for  courts;  (22  L.R.A. (N.S.)  6,  56,  65,  92)  on  judicial  power  over  emin- 
ent domain. 

7  L.  R.  A.  771,  MASON  v.  POMEROY,  151  Mass.   164,  24  N.  E.  202. 
Second  petition  for  accounting  in   154  Mass.  482,  29  N.  E.  51. 

Continuance    of    testator's   business. 

Cited  in  Packard  v.  Kingman,  109  Mich.  506,  67  N.  W.  551,  holding  it  com- 
petent for  testator  to  provide  for  continuance  of  his  business  and  subject  all  of 
his  property  to  such  purpose;  Mills  v.  Smith,  193  Mass.  18,  6  L.R.A. (N.S.) 
870,  78  N.  E.  765,  holding  it  in  the  power  of  testator  to  provide  for  a  disposi- 
tion or  use  of  his  property  after  his  death,  which  will  prevent  for  a  long 
time  the  settlement  of  his  estate. 
Remedy  of  creditors  a&ainst  trustees  and  estate. 

Cited  in  Mayo  v.  Moritz,  151  Mass.  485,  24  N.  E.  1083,  holding  creditor  could 
not  have  whole  of  trust  property  sold  and  proceeds  applied  to  pay  his  claim: 
Odd  Fellows  Hall  Asso.  v.  McAllister,  153  Mass.  297,  11  L.  R.  A.  174,  26  N.  E. 
862,  holding,  even  where  trustees  are  entitled  to  indemnity  from  trust  estate, 
judgment  at  law  is  against  them  as  individuals;  Lyman  v.  National  Bank,  181 
Mass.  438,  63  N.  E.  923,  holding  executor  may  borrow  money  and  pledge  prop- 
erty of  estate  to  secure  it;  Packard  v.  Kingman,  109  Mich.  506,  67  N.  W.  551, 
holding  trustee  may  contract  for  trust  estate  as  to  exclude  his  personal  liabil- 
ity; O'Malley  v.  Gerth,  67  N.  J.  L.  613,  52  Atl.  563,  holding  trustees  may  be 
sued  individually  for  torts,  irrespective  of  their  right  of  indemnity  out  of  trust 
ostate;  Wells-Stone  Mercantile  Co.  v.  Grover,  7  N.  D.  463,  41  L.  R.  A.  253.  To 
X.  W.  911,  holding  creditor  must  generally  look  to  trustee  individually  for  pay- 
ment for  goods  sold  to  him;  Connally  v.  Lyons,  82  Tex.  670,  27  Am.  St.  Rep. 


1413  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  779 

935,  18  S.  W.  799,  holding  trustee  personally  liable  for  purchase  made  on  credit 
of  trust  estate. 
Priority   of   claims. 

Followed  in  Woddrop  v.  Weed,  154  Pa.  314,  32  W.  N.  C.  192,  35  Am.  St.  Rep. 
832,  2G  Atl.  375,  holding  upon  insolvency  of  trust  to  carry  on  business  assets 
must  be  distributed  pro  rata. 

Cited  in  American  Loan  &  T.  Co.  v.  Northwestern  Guaranty  Loan  Co.  166 
Mass.  344,  44  N.  E.  340,  holding  mere  priority  of  maturity  of  a  claim  against 
trust  fund  does  not  give  right  to  priority  of  satisfaction;  Randolph  v.  Scruggs, 
190  U.  S.  538,  47  L.  ed.  1170,  23  Sup.  Ct.  Rep.  710,  holding  that  claim  for  serv- 
ices rendered  voluntary  assignee  in  unsuccessfully  resisting  adjudication  in  bank- 
ruptcy of  assignor,  on  petition  filed  within  four  months  after  assignment,  not 
provable  against  bankrupt's  estate. 
Creditor's  right  to  proceed  against  trust  estate. 

Cited  in  Broadway  Nat.  Bank  v.  Wood,  165  Mass.  316,  43  N.  E.  100,  holding 
creditor  of  ostensible  firm  has  no  prior  right  to  have  property  applied  to  pay- 
ment of  his  claim  over  creditors  of  real  firm;  WTells-Stone  Mercantile  Co.  v. 
Grover,  7  N.  D.  463,  41  L.  R.  A.  253,  75  N.  W.  911,  and  Wells-Stone  Mercantile 
Co.  v.  Aultman,  M.  &  Co.  9  N.  D.  522,  84  N.  W.  375,  holding  right  of  credit- 
ors to  proceed  against  trust  estate  based  on  trustee's  right  of  reimbursement  for 
expenditures;  Wadsworth,  H.  &  Co.  v.  Arnold,  24  R.  I.  35,  51  Atl.  1041,  hold- 
ing where  apparent  intent  of  testator  was  that  trustee  should  use  the  estate 
for  the  purpose  of  his  business,  he  could  bind  the  estate  for  purchases  made  pur- 
suant to  the  trust. 

7  L.  R.  A.  776,  FARRELL  v.  DERBY,  58  Conn.  234,  20  Atl.  460. 
Municipal  powers. 

Cited  in  Central  R.  &  Electric  Co.'s  Appeal,  67  Conn.  235,  35  Atl.  32  (dissent- 
ing opinion ) ,  as  to  possession  by  municipality  of  all  powers  necessary  to  full 
operation  of  those  specifically  granted,  or  to  attainment  of  declared  objects. 

Distinguished  in  Goodwin  v.  East  Hartford,  70  Conn.  40,  38  Atl.  876,  holding 
towns  not  liable  for  expense  incurred  by  statutory  board  for  maintenance  and 
control   of   highway   in   employing   agents   to   secure   legislation   terminating   its 
existence  and  transferring  burden  of  maintaining  highway  to  state. 
State    control    of   municipal    affairs. 

Cited  in  Sargent  v.  Clark,  83  Vt.  527,  77  Atl.  337,  to  the  point  that  town  has 
right  to  incur  expense  to  oppose  division  of  its  territory  by  legislature. 

Distinguished  in  State  ex  rel.  Bulkeley  v.  Williams,  68  Conn.  161,  48  L.  R. 
A.  497,  35  Atl.  421  (dissenting  opinion),  majority  holding  statute  imposing  ex- 
pense of  maintenance  and  construction  of  highway  upon  benefited  towns. 

7  L.  R.  A.  779,  WILLIAM  ROGERS  MFG.  CO.  v.  ROGERS,  58  Conn.  356,  18 

Am.   St.  Rep.  2/8,  20  Atl.  467. 
Specific   enforcement   of  contract. 

Cited  in  Roquemore  v.  Mitchell  Bros.  167  Ala.  479,  140  Am.  St.  Rep.  52,  52 
So.  423,  holding  that  courts  of  equity  will  not  enforce  specific  performance  of 
contract  for  personal  services  which  are  material  or  mechanical  and  not  peculiar 
or  individual. 

Cited  in  notes  (8  L.  R.  A.  626)  on  right  to  specific  performance  where  there  is 
adequate  remedy  at  law;  (11  L.  R.  A.  116)  on  agreements  not  specifically  en- 
forceable; (6  L.R.A.(N.S.)  1123,  1126,  1140,  1141,  1144)  on  enforcement  of  con- 
tract of  service  by  equity;  (68  Am.  St.  Rep.  761)  on  specific  performance  of  con- 


7  L.R.A.  779]  L.  E.  A.  CASES  AS  AUTHORITIES.  1414 

tract  where  decree  cannot  be  enforced;   (140  Am.  St.  Rep.  62)  on  specific  perform- 
ance of  contract  for  personal  services;    (6  Eng.  Rul.  Cas.  665)   on  refusal  to  en- 
force specific  performance  of  contract,  the  execution  of  which  the  court  cannot 
superintend. 
Rule  as  to  negative  enforcement  of  contracts  for  personal  services. 

Cited  in  Schwier  v.  Zitike,  136  Ind.  213,  36  N.  E.  30,  holding  school  board 
cannot  be  enjoined  from  violating  contract  for  personal  services  as  teacher; 
E.  Jaccard  Jewelry  Co.  v.  O'Brien,  70  Mo.  App.  435,  refusing  to  enjoin  sales- 
man from  entering  employment  of  another  firm  in  violation  of  contract;  Jones 
v.  Williams,  139  Mo.  92,  37  L.  R.  A.  707,  61  Am.  St.  Rep.  436,  40  S.  W.  353 
(dissenting  opinion),  majority  holding  corporation  enjoinable  from  breach  of 
contract  giving  plaintiff,  in  considerations  of  purchase  of  stock,  management 
and  editorship  of  newspaper;  Chain  Belt  Co.  v.  Von  Spreckelsen,  117  Wis.  123 r 
94  N.  W.  78,  holding  injunction  in  action  to  restrain  expert  mechanic  from  en- 
tering employment  of  another  than  plaintiff,  properly  dissolved;  Philadelphia 
Base-Ball  Club  v.  Lajoie,  10  Pa.  Dist.  R.  314,  holding  court  should  refuse  in- 
junction restraining  a  base-ball  player  from  rendering  services  to  another  club 
contrary  to  terms  of  contract  of  employment  though  he  was  an  expert  player; 
Columbia  College  v.  Tunberg,  64  Wash.  21,  116  Pac.  280,  holding  that  breach  of 
contract  to  teach  music  in  school  will  not  be  enjoined  where  services  of  another 
can  be  procured  without  materially  impairing  efficiency  of  school ;  Eureka 
Laundry  Co.  v.  Long,  146  Wis.  210,  35  L.R.A.(N.S.)  123,  131  N.  W.  412,  to 
the  point  that  injunction  does  not  lie  to  enforce  contract  for  personal  services, 
unless  they  belong  to  class  called  unique,  peculiar,  individual  or  extraordinary. 

Cited  in  notes  (11  L.  R.  A.  550)  on  special  services  for  professional  labor; 
(12  L.  R.  A.  497)  on  assignability  of  contracts  for  personal  services  requiring- 
special  skill  and  knowledge;  (20  L.  R.  A.  167)  on  power  of  equity  to  grant  man- 
datory injunctions;  (16  L.R.A.  (N.S.)  391)  on  injunction  against  breach  by  em- 
ployee of  agreement  not  to  compete;  (90  Am.  St.  Rep.  648)  on  injunction  against 
breach  of  contract  for  services. 
Engaging  in  like  business. 

Cited  in  Knoedler  v.  Glaenzer,  20  L.  R.  A.  735,  5  C.  C.  A.  308,  14  U.  S.  App. 
336,  55  Fed.  898,  holding,  in  absence  of  contract  or  fraud,  vendor  of  business  and 
good  will  not  debarred  from  establishing  like  business  in  same  place;  H.  W. 
Gossard  Co.  v.  Crosby,  132  Iowa,  177,  6  L.R.A. (N.S.)  1146,  109  N.  W.  483r 
holding  an  employee  on  leaving  employers  service  has  perfect  right  to  make 
use  for  his  own  benefit  of  all  knowledge  and  experience  acquired,  excepting  onlv 
trade  secrets. 

7  L.  R.  A.  782,  KE-TUC-E-MUN-GUAH  v.  McCLURE,   122  Ind.  541,  23  X.  E. 

1080. 
Presumption  on  appeal  that  amendment  was  made. 

Cited  in  Taylor  v.  Culvert,  138  Ind.  84,  37  X.  E.  531.  holding  amendment  pre- 
sumed for  purpose  of  curing  immaterial  variance;  Helms  v.  Appleton,  43  Ind. 
App.  489,  85  N.  E.  733,  holding  complaint  with  reference  to  any  damages 
proved  within  issues  could  have  been  amended  even  after  finding  or  verdict  t» 
correspond  to  the  proof  and  on  appeal  the  court  will  treat  it  as  amended. 

Distinguished  in  Lake  Erie  &  W.  R.  Co.  v.  Juday,  19  Ind.  App.  443.  4'.»  X.  K. 
843,  holding  action  not  removable  to  Federal  court  where  damages  demanded  are 
less  than  $2,000,  though  complaint  alleges  greater. 
Jurisdiction  over  Indians. 

Cited  in  Stacy  v.  La  Belle,  99  Wis.  524,  41  L.  R.  A.  422,  67  Am.  St.  Rep.  879r 


1415  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  784 

75  X.  W.  60,  holding  action  ex  coniractu  lies  in  state  court  against  Indian  in 
absence  of  statute  or  treaty  to  contrary. 
What   constitutes  promissory   note. 

Cited  in  note   (21  Am.  St.  Rep.  436)    on  what  constitutes  a  promissory  note. 

7  L.  R.  A.  784,  LOWMAX  v.  SHEETS,  124  Ind.  416,  24  N.  E.  351. 
Statute   of   frauds Contract   not   to   be   performed   within   year. 

Cited  in  Langan  v.  Iverson,  78  Minn.  302,  80  X.  W.  1051,  holding  parol  agree- 
ment upon  conveyance  of  land  to  pay  mortgage  not  due  within  year  not  within 
statute. 

Cited  in  footnotes  to  Lewis  v.  Tapman,  47  L.  R.  A.  385,  which  holds  contract 
to  marry  ''within  three  years"  not  within  statute  of  frauds;  Weatherford,  M.  W. 
&  X.  W.  R.  Co.  v.  Wood,  28  L.  R.  A.  526,  which  holds  contract  to  give  pass  to 
man  and  his  family  annually  for  ten  years  not  within  statute  of  frauds;  Brown 
v.  Throop,  13  L.  R.  A.  646,  which  holds  parol  agreement  in  March  for  lease  of  ice 
house  for  one  year  from  April  to  be  left  full  on  surrendering  possession  valid; 
Hand  v.  Osgood,  30  L.  R.  A.  379,  which  holds  oral  lease  for  year  with  privilege  of 
three  at  annual  rent,  void. 

Cited  in  notes  (9  L.  R.  A.  129)  on  promises  not  to  be  performed  within  a  year; 
(10   L.R.A.  727)    on   lease   within  statute   of  frauds;    (138   Am.   St.  Rep.   610) 
on  agreements  not  to  be  performed  within  a  year. 
Effect  of  part  performance. 

Cited  in  Murphy  v.  De  Haan,  116  Iowa,  63,  89  N.  W.  100,  holding  oral  contract 
for  labor,  to  the  extent  of  performance,  taken  out  of  statute;  Riley  v.  Haworth, 
30  Ind.  App.  381,  64  X.  E.  928,  holding  oral  contract  for  conveyance  of  land  not 
taken  out  of  statute  by  part  payment  of  purchase  price. 
Contracts   voidable   only. 

Cited  in  Cochran  v.  Ward,  5  Ind.  App.  93,  51  Am.  St.  Rep.  229,  29  N.  E.  795r 
holding  contracts  within  statute  of  frauds  not  void,  but  power  of  enforcement 
merely  withheld  and  recovery  of  damages  for  nonperformance  prevented. 

Distinguished   in   Pierce   v.   Clarke,   71   Minn.    121,  73   N.   W.  522,  overruling- 
Hagelin  v.  Wacks,  61  Minn.  216,  63  X.  W.  624,  holding  oral  contracts  relating 
to  land  absolutely  void. 
Knforceability   of   contracts   -void   in    part. 

Cited  in  Gibson  County  v.  Cincinnati  Steam  Heating  Co.  128  Ind.  248,  12  L.  R. 
A.  505,  27  X.  E.  612,  holding  valid  part  of  contract  severable  from  void  part  en- 
forceable. 
Partner's    riuht    to   dispose   of   firm   property. 

Cited  in  Huey  v.  Fish,  15  Tex.  Civ.  App.  462,  40  S.  W.  29,  holding  member  of 
nontrading  partnership  cannot  mortgage  firm  assets  without  copartner's  consent; 
Callahan  v.  Heinz,  20  Ind.  App.  365,  49  X.  E.  1073,  holding  one  partner  cannot,, 
without  consent  of  others,  assign  for  creditors  property  used  in  firm  business. 
Declarations   of   possessor  as   to   title. 

Cited  in  Murphy  v.  Dafoe,  18  S.  D.  47,  99  X.  W.  86,  holding  declarations  of  a 
person  in  possession  of  realty  that  he  was  acting  as  agent  admissible. 

Distinguished  in  Robbins  v.  Spencer,  140  Ind.  497,  38  X.  E.  522,  holding  dec- 
larations of  vendor  retaining  life  estate,  made  after  executing  deed,  inadmissible 
against  vendee. 
Cotenant's    liability    for   conversion. 

Cited  in  Robinson  v.  Dickey,  143  Ind.  208,  52  Am.  St.  Rep.  417,  42  X.  E.  679, 
hojding  cotenant's  exclusive  possession  of  personalty  not  conversion. 


7  LJUL  188]  L.  R,  A.  CASES  AS  AUTHORITIES.  1416 

7  L_  R-  A.  788,  VALEXTIXE  v.  WY8OR,  123  Ind.  47,  23  N.  E.  1076. 

lmterc*to  o,f  heirs  a  ad   devisee*   in    share   of   deceased    part- 


Cited  in  BoUenbaeher  T.  First  Nat.  Bank,  8  Ind.  App.  18,  35  X.  E.  403,  holding 
right*  of  heirs  and  legatees  of  deceased  partner  attach  only  to  surplus  of  latter's 
interest  after  partnership  debts  are  paid. 
Rijcat    of   aMFTrivor   to   ^oatrol    «f   ftna    proper  t>  . 

Cited  in  Mclntosh  T.  Zaring.  130  Ind.  312,  49  N.  E.  164,  holding  upon  death 
of  partner  right  to  collection  of  debts  and  assets  is  Tested  exclusively  in  sur- 
vivors; Rand  T.  Wright,  141  Ind.  234,  39  X.  E.  447,  holding  on  death  or  retire- 
ment of  partner,  survivors  succeed  to  full  right  of  disposing  of  partnership  prop- 
erty, and  closing  up  of  business:  Bollenbacher  v.  First  Nat.  Bank,  8  Ind.  App. 
16,  35  X.  E.  403,  holding  on  death  of  partner  law  constitutes  survivors  trustees 
to  wind  up  concern  for  benefit  of  all  persons  interested;  Re  Silkman,  121  App. 
Div.  208,  105  X.  Y.  Supp.  872,  holding  that  a  surviving,  partner  may  buy 
partnership  interest  from  executor;  Xewman  v.  Gates,  165  Ind.  174.  72  N.  K. 
638.  6  A.  ft  E.  Ann.  Cas.  649,  holding  that  surviving  partner  baa  right  to  col- 
lect debts;  Hartnett  T.  Stilwell,  121  Ga.  389,  49  S.  E.  276,  holding  surviving 
partner  entitled  to  possession  of  firm  property. 

Cited  in  footnote  to  Philbrook  v.  Xewman,  34  L.  R.  A.  265,  which  holds  good 
will  passes  to  surviving  partners  on  purchase  of  interest  of  deceased. 

Cited  in  note  (24  Am.  St.  Rep.  186)  on  right  of  survivor  to  control  firm 
property  on  death  of  one  partner. 

Distinguished  in  Shrum  v.  Simpson,  155  Ind.  162,  49  L.  R.  A.  793,  57  X.  E.  70S, 
holding  agreement  between  owner  and  another  for  cultivation  of  land  on  shares 
not  partnership  giving  survivor  right  of  possession  of  property  until  business 
settled. 
Satt*factioa    of   ImiivMval    liability    of   partner*. 

Cited  in  footnotes  to  Kincaid  v.  National  Wall  Paper  Co.  54  L.  R.  A.  412, 
which  sustains  right  of  partners  to  appropriate,  with  other  partners'  consent,  in- 
terest in  firm  to  pay  individual,  in  preference  to  firm,  debts;  Hundley  v.  Farri>.  12 
of  deceased  partner's  estate;  JZe  Baldwin,  58  L.  R.  A.  122.  which  holds  individual 
liability  of  member  of  banking  firm,  signing  name  to  certificate  of  deposit,  en- 
forceable against  estate  in  preference  to  claims  against  firm. 
Parraaae  fcjr  trwtec*  mt  owm  sale-. 

Cited  in  Comegys  v.  Emerick.  134  Ind.  153,  39  Am.  St.  Rep.  245,  33  X.  E.  809. 
holding  purchase  of  real  estate  by  executor  at  his  own  sale,  void;  Tennant  v. 
Dnnlop,  97  Va.  242,  33  S.  E.  620,  holding  surviving  partner  is  trustee  as  to 
disposition  of  firm  property,  and  purchase  of  deceased  partner's  interest  regarded 
with  suspicion,  and  jealously  scrutinized;  Holladay  v.  Land  &  River  Improv.  Co. 
6  C.  C.  A.  571,  18  U.  S.  App.  308,  57  Fed.  785,  holding  settlement  between  executor 
and  surviving  partner,  involving  transfer  of  interest  of  deceased  in  firm  real 
estate  to  survivor,  conclusive  in  absence  of  fraud  or  mistake. 


Cited  in  Matthews  v.  Wilson,  31  Ind.  App.  97,  67  X.  E.  280,  holding  lien 
against  real  estate  to  secure  payment  of  allowance  for  support  of  child  barred 
after  ten  years;  Ferguson  v.  Boyd,  169  Ind.  549,  81  X.  E.  71,  holding  that  court 
of  equity  looks  with  disfavor  upon  state  and  speculative  claims. 

Cited  in  note  (10  L.  R.  A.  126)  on  doctrine  of  laches. 

7  L.  R.  A.  797,  XEWSOX  v.  GALVESTOX,  76  Tex.  559,  13  S.  W.  368. 
Power*  of  ataaieipal   eorporatioaa  rgapeetlag  markets. 

Cited   in   G  mm  bach  v.  Lelande,   154  CaL  684,  98  Pac.   1059,  holding  that  a 


1417  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  J^RJL  799 

municipality  has  power  to  exclude  the  conducting  of  a  certain  business  from 
a  certain  district. 

Cited  in  footnote  to  Re  Snyder,  68  LJR.A.  708,  which  sustains  right  of 
farmer  to  sell  products  of  his  farm  in  city  without  license. 

Cited  in  notes  (24  L.  R.  A.  585)  on  prohibition  of  sales  except  at  markets;  <24 
L.  R.  A.  584)  on  market  regulations  and  ordinances  affecting  contracts;   (9  L.  R. 
A.  69)    on  regulation  of  markets  and  market  houses;    (23   Am.  St.  Rep.  §81, 
582)   on  power  of  municipality  to  establish  and  regulate  markets. 
St»t«te*  regrnlatlagr  Ml*  of  article*  of  food. 

Cited  in  footnotes  to  State  v.  Layton,  62  L.RJL  164,  which  holds  constitu- 
tional, act  prohibiting  manufacturer  of  baking  powder  containing  alum;  Ar- 
bnckle  v.  Blackburn,  65  LJELA.  864,  which  upholds  statute  prohibiting  the 
coloring,  coating,  or  polishing  of  article  intended  for  food  whereby  damage  or 
inferiority  is  concealed. 
Revocation  of  HCCMC. 

Cited  in  footnote  to  Wallace  v.  Reno,  63  L.R.A.  337,  which  upholds  statute 
authorizing  revocation  of  license  without  notice  to  licensee. 

Cited  in  note  (9  L.R.A.(X.S.)  733)  on  expenditure  in  reliance  upon  license 
from  public,  as  preventing  revocation  in  interest  of  public  health. 

7  L.  R-  A.  799,  WHITE  v.  WHITE,  82  CaL  427,  23  Pac.  276. 
Waca  mtmrrl»ff  rclatloa  cxfxte. 

Cited  in  Eldred  v.  Eldred,  97  Va.  610,  34  S.  E.  477,  holding  presumption  of 
marriage,  raised  by  declaration  that  it  was  in  certain  city,  rebutted  where  license 
required  not  issued  and  banns  not  published;  Williams  v.  Herriek,  21  R.  L  403, 
79  Am.  St.  Rep.  809,  43  Atl.  1036,  holding  ceremonial  marriage  to  enable  woman 
and  children  to  receive  property  strong  evidence  against  existence  of  prior  mar- 
riage; Barker  v.  Valentine,  125  Mich.  343,  51  L.  R.  A.  790,  34  Am.  St.  Rep.  578, 
84  X.  \\.  297,  holding  marriage  presumed  between  man  and  woman  who  con- 
tinued to  cohabit  under  circumstances  of  general  repute  of  marriage  after  death 
of  first  wife;  Quackenbnsh  v.  Swortfiguer,  136  CaL  152,  68' Pac,  590,  holding  the 
repute  of  marriage  divided,  and  sustains  finding  of  no  marriage;  Re  Richards, 
133  Cal.  527,  65  Pac.  1034,  holding  evidence  by  woman  of  solemnization  of  mar- 
riage with  intestate,  followed  by  cohabitation  and  residence,  admissible  to  deter- 
mine which  of  two  widows  entitled  to  estate;  People  v.  Hart  man,  130  Cal.  490, 
62  Pac.  823,  holding  evidence  of  general  repute  of  marriage  admissible  in  trial 
for  bigamy;  Harron  v.  Harron,  128  Cal.  310,  60  Pac.  932,  holding  divorce  cannot 
be  granted  from  marriage  never  solemnized,  the  existence  of  which  was  evi- 
denced only  by  illicit  relations,  and  unsupported  statement  of  woman;  Sununer- 
ville  v.  Snmmerville,  31  Wash.  416.  72  Pac.  84,  holding  marriage  established  by 
proof  of  cohabitation  as  man  and  wife  and  testimony  as  to  service  supposed  by 
wife  to  have  been  performed  by  clergyman;  Hinckley  v.  Ayres,  105  CaL  360.  38 
Pac.  735,  holding  marriage  not  proved,  where  parties  living  together  were  not 
shown  to  have  treated  the  realtion  as  that  of  husband  and  wife;  Ollschlager  v. 
Widmer,  55  Or.  151,  105  Pac.  717,  holding  that  burden  of  proof  is  on  person 
questioning  marriage,  where  proof  of  marriage  is  made,  such  proof  overcoming 
any  presumption  arising  out  of  meretricious  relations;  Weidenhoft  v.  Primm, 
16  Wyo.  360,  94  Pac.  453,  holding  that  to  establish  marriage  by  reputation 
in  the  community  where  the  parties  reside  the  reputation  must  be  general  and 
uniform:  Henry  v.  Taylor,  16  S.  D.  433,  93  X.  W.  641,  holding  where  relations 
are  illicit  in  their  origin  that  unless  a  mutual  contract  of  marriage  is  shown 
the  presumption  is  that,  the  same  relations  continue:  People  v.  Le  Doux,  155 


7  L.R.A.  799]  L.  R.  A.  CASES  AS  AUTHORITIES.  1418 

Cal.  548,  102  Pac.  517,  holding  in  a  criminal  case  where  marriage  is  in  issue 
that  a  marriage  in  fact  must  be  shown;  Re  Blythe,  4  C.  of  Prob.  Dec.  Anno. 
298,  on  necessity  of  repute  of  marriage  as  an  element  in  proof  thereof. 

Cited  in  footnotes  to  Re  McLaughlin,  16  L.  R.  A.  699,  which  holds  common-law 
marriage  invalid  under  statute;  Nims  v.  Thompson,  17  L.  R.  A.  847,  which  holds 
finding  of  marriage  justified  by  evidence;  Re  Hurlburt,  35  L.  R.  A.  794,  which 
holds  general  reputation  in  family  as  to  death  of  member,  not  derived  from  de- 
ceased members  of  family,  inadmissible. 

Cited  in  notes   (14  L.  R.  A.  364)   on  cohabitation  as  proof  of  marriage  where 
it  begins  unlawfully;   (41  L.  R.  A.  449)  on  entries  in  family  Bible  or  other  relig- 
ious book  as  evidence;    (124  Am.  St.  Rep.   119)    on  common  law  marriage. 
Immaterial  error. 

Cited  in  Stewart  v.  Douglass,  9  Cal.  App.  715,  100  Pac.  711,  holding  the  ad- 
mission  of   irrelevant   testimony   not   ground   for   reversal   where   case    is   tried 
before  court  unless  it  appears  that  court  relied  on  such  testimony  in  making 
its  decision. 
When    reversal    allowed    because    of    leading:    quest  ion. 

Cited  in  Casey  v.  Leggett,  125  Cal.  673,  58  Pac.  264;  Kyle  v.  Craig,  125  Cal. 
113,  57  Pac.  791,  holding  case  will  not  be  reversed  because  of  allowance  of  lead- 
ing question,  unless  discretion  abused;  Josephson  v.  Sigfusson,  13  N.  D.  318,  100 
N.   W.   703,   holding  same. 
Failure   to   find   on   issue. 

Cited  in  Smith  v.  Smith,  119  Cal.  190,  48  Pac.  730,  holding  omission  to  find 
•upon  facts  alleged  in  answer  immaterial,  where  evidence  not  sufficient  to  support 
finding  of  facts  as  alleged. 

7  L.  R.  A.  809,  ASHTON  v.  DASHAWAY  ASSO.  84  Cal.  61,  22  Pac.  660,  23 

Pac.  1091. 

Demand   on    directors   as   precedent    to   suit   by    stockholder    in   behalf   of 
corporation. 

Cited  in  Albers  v.  Merchants'  Exchange,  45  Mo.  App.  221 ;  Forrester  v.  Boston 
&  M.  Consol.  Copper  &  S.  Min.  Co.  21  Mont.  549,  55  Pac.  229 ;  Hannerty  v.  Stand- 
ard Theater  Co.  109  Mo.  306,  19  S.  W.  82, — holding  it  not  necessary  to  show  a 
demand  by  stockholder  that  corporation  sue  directors  for  property  lost  by  mis- 
conduct of  directors  where  same  directors  are  still  in  office;  Smith  v.  Dorn,  96 
Cal.  79,  30  Pac.  1024,  holding  a  demand  on  directors  of  a  corporation  to  bring 
action  unnecessary  where  answer  shows  that  it  would  have  been  useless;  White- 
head  v.  Sweet,  126  Cal.  73,  58  Pac.  376,  holding  in  an  action  to  set  aside  an 
election  of  directors  that  demand  on  directors  to  bring  action  is  excused  where 
a  demand  would  have  been  of  no  avail. 

Cited  in  note   (24  Am.  St.  Rep.  644)  on  demand  as  condition  precedent  to  suit 
"by  stockholders  against  directors  for  mismanagement. 
It  iuli  t    of  stockholder  to  act  in  behnlf  of  corporation. 

'Cited  in  Duquesne  Gold  Min.  Co.  v.  Glaser,  46  Colo.  191,  103  Pac.  299,  holding 
•where  officers  of  a  corporation  attempt  to  wreck  corporation  that  a  stockholder 
anight  redeem  from  execution  sale  and  then  recover  amount  paid  by  an  action 
Against  corporation. 

Cited  in  note    (57  Am.  St.  Rep.  71,   72)    on  right  of  stockholder  to  prevent 
-withdrawal  of  corporate  assets. 
Directors  voting  compensation  to  themselves. 

Cited  in  McConnell  v.  Combination  Min.  &  Mill.  Co.  30  Mont.  256,  104  Am. 
St.  Rep.  703,  76  Pac.  194,  holding  no  implied  authority  to  exist  where  directors 


1419  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  819 

might  vote  compensation  to  one  of  their  number;  Pfeiffer  v.  Lansberg  Brake  Co. 
44  Mo.  App.  63,  holding  that  directors  cannot  vote  themselves  compensation  after 
services  have  been  performed. 
Liability  of  directors  for  misconduct. 

Cited  in  Tobin  Canning  Co.  v.  Fraser,  81  Tex.  413,  17  S.  W.  25,  holding  a  di- 
rector of  an  insolvent  corporation  having  brought  in  the  assets  of  corporation 
for  less  than  their  value  is  liable  for  excess  of  value  of  property  over  what  it 
cost  him. 

7  L.  R.  A.  812,  BENTON  v.  SHAFER,  47  Ohio  St.  117,  24  N.  E.  197. 
L,is  pendens;   notice  of  pendency  of  action. 

Cited  in  Jones  v.  Robb,  35  Tex.  Civ.  App.  270,  80  S.  W.  395,  holding  that  a 
suit  in  order  to  effect  lands  purchased  during  its  pendency  must  be  brought  in 
the  county  in  which  the  land  is  situate. 

Cited  in  footnote  to  Mach  v.  Blanchard,  58  L.  R.  A.  811,  which  holds  mort- 
gagee of  land  restored  to  mortgagor  by  default  judgment  against  his  grantee, 
takes  subject  to  having  title  defeated  by  opening  of  judgment. 

Cited  in  notes  (8  L.R.A.  553)  on  effect  of  notice  of  pendency  of  suit;  (24  Am. 
St.  Rep.  373;  56  Am.  St.  Rep.  856,  859,  860)  on  law  of  lis  pendens. 

7  L.  R.  A.  817,  MOLETOR  v.  SINNEX,  76  Wis.  308,  20  Am.  St.  Rep.  71,  44  N. 

W.  1099. 
Fugitive    from    justice. 

Cited  in  footnote  to  Re  Little,  57  L.  R.  A.  295,  which  holds  prisoner  trans- 
ferred to  other  state  for  trial  in  Federal  court  may  be  turned  over  to  state 
authorities. 

Cited  in  notes   (14  L.  R.  A.  129)   on  extradition  from  sister  state,  right  to  try 
prisoner  for  other  crime  than  that  for  which  he  was  surrendered;    (25  L.  R.  A. 
722,  723,  724,  727,  728,  731)    on  privilege  of  nonresident  from  suit. 
Privilege    from   arrest   or   process. 

Cited  in  Martin  v.  Bacon,  76  Ark.  161,  113  Am.  St.  Rep.  81,  88  S.  W.  863,  6 
A.  &  E.  Ann.  Cas.  336,  holding  service  on  a  nonresident  while  attending  court 
in  order  to  avoid  a  forfeiture  of  his  bail  bond  not  sufficient;  Saveland  v  Connors. 
121  Wis.  30,  98  N.  W.  933,  sustaining  a  dismissal  of  an  action  where  defendant 
was  fraudulently  decoyed  into  state  for  purpose  of  obtaining  jurisdiction. 

Cited  in  footnote  to  Murray  v.  Wilcox,  64  L.  K.  A.  534.  which  holds  defendant 
in  criminal  case  attending  trial  exempt  from  service  of  civil  process. 

Cited  in  note  (7G  Ani.  St.  Rep.  541)  on  exemption  from  service  of  civil  process. 
—  Extradited  person. 

Cited  in  State  ex  rel.  Hattabaugh  v.  Boynton,  140  Wis.  91,  121  N.  W.  8*7.  17 
A.  &  E.  Ann.  Cas.  618,  holding  extradited  party  not  subject  to  arrest  on  civil 
process. 

Disapproved  in  Rutledge  v.  Krauss,  73  X.  J.  L.  400,  63  Atl.  988,  holding  that 
an  extradicted  person  might  be  tried  on  another  and  distinct  offense. 

7  L.  R.  A.  819,  WEBER  v.  KANSAS  CITY  CABLE  R.  CO.  100  Mo.  194,  18  Am. 

St.  Rep.  541,  12  S.  W.  804,  13  S.  W.  587. 
Violation    of   ordinance. 

Cited  in  Wller  v.  Chicago.  M.  &  St.  P.  R.  Co.  120  Mo.  654,  23  S.  W.  1061, 
liolding  driving  horse  at  speed  prohibited  by  ordinance  negligence  per  se;  Blvstni- 
Spencer  v.  United  R.  Co.  152  Mo.  App.  135,  132  S.  W.  1175.  held  that  running 
street  car  in  excess  of  rate  of  speed  fixed  by  ordinance  is  negligence  per  se. 


7  L.R.A.  819]  L.  R.  A.  CASES  AS  AUTHORITIES.  1420 

Cited  in  notes  (5  L.R.A.  (N.S.)  250,  251)  on  violation  of  police  ordinance  as 
ground  for  private  action;  (8  L.R.A. (N.S.)  1094)  on  operating  car  in  excess  of 
speed  prescribed  by  ordinance  as  negligence  or  evidence  thereof;  (104  Am.  St. 
Rep.  656,  657)  on  enforcement  of  municipal  regulations  of  street  railways  for 
protection  of  public  by  making  violation  a  predicate  for  negligence. 
Negligence  of  defendant. 

Cited  in  Van  Natta  v.  People's  Street  R.  Electric  Light  &  P.  Co.  133  Mo.  22, 
34  S.  W.  505,  reversing  because  of  instruction  imposing  upon  carrier  higher  de- 
gree of  care  than  required  by  law. 
Recovery    defeated    by    contributory    negligence. 

Cited  in  Corcoran  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  105  Mo.  406,  24  Am.  St.  Rep. 
394,  16  S.  W.  411,  holding  act  of  climbing  over  stationary  cars  contributory  negli- 
gence. 
Direction    of    verdict. 

Cited  in  Weaver  v.  Benton-Bellefontaine  R.  Co.  60  Mo.  App.  208,  reversing 
judgment  without  remanding,  on  ground  trial  court  should  have  directed  verdict 
for  defendant;  Moore  v.  Kansas  City,  St.  S.  &  M.  R.  Co.  146  Mo.  580,  48  S.  W. 
487,  holding  voluntary  choice  of  dangerous  course  when  safer  one  was  open,  con- 
tributory negligence  as  matter  of  law. 

Cited  in  footnote  to  Hopkins  v.  Nashville,  C.  &  St.  L.  R.  Co.  32  L.  R.  A.  354, 
which  sustains  practice  of  demurring  to  evidence. 
•When    contributory    negligence    a.    question    for    jury. 

Cited  in  Kreis  v.  Missouri  P.  R.  Co.  131  Mo.  545,  30  S.  W.  310,  holding  on  con- 
flicting evidence  contributory  negligence  question  for  jury;  Church  v.  Chicago  & 
A.  R.  Co.  119  Mo.  214,  23  S.  W.  1056,  holding  questions  for  jury  where  facts 
though  undisputed  would  lead  sensible  men  to  different  conclusions;  Eikenberry  v. 
St.  Louis  Transit  Co.  103  Mo.  App.  451,  80  S.  W.  360;  Dawson  v.  St.  Louis  Transit 
Co.  102  Mo.  App.  283,  76  S.  W.  689,  holding  it  mixed  question  of  law  and  fact 
whether  passenger  boarding  or  alighting  from  slowly  moving  car  guilty  of  con- 
tributory negligence;  Hornstein  v.  United  Railways  Co.  97  Mo.  App.  278,  70  S.  W. 
1105,  holding  it  question  for  jury  whether  crossing  street  car  tracks  without  stop- 
ping to  see  whether  car  approaching,  contributory  negligence;  Root  v.  Des  Moines 
City  R.  Co.  113  Iowa,  680,  83  N.  W.  904,  and  Fulks  v.  St.  Louis  &  S.  F.  R.  Co.  Ill 
Mo.  340,  19  S.  W.  818,  holding  that  getting  upon  slowly  moving  train,  especially 
at  platform,  is  not  negligence  as  matter  of  law;  Hansberger  v.  Sedalia  Electric 
R.  Light  &  Power  Co.  82  Mo.  App.  579,  holding  question  whether  person  was 
guilty  of  contributory  negligence  in  getting  upon  slowly  moving  car,  for  jury : 
Eberly  v.  Chicago,  B.  &  Q.  R.  Co.  96  Mo.  App.  369,  70  S.  W.  381,  holding  that 
where  inference  to  be  drawn  from  evidence  is  uncertain,  question  of  negligence 
cannot  be  passed  upon  by  court;  McDonald  v.  Kansas  City  &  I.  Rapid  Transit  R. 
Co.  127  Mo.  43,  29  S.  W.  848,  holding  passenger  not  guilty  of  contributory  neg- 
ligence per  se  in  getting  off  slowly  moving  train,  under  conductor's  direction, 
without  looking  to  see  if  a  train  is  approaching. 

Cited  in  notes   (11  L.  R.  A.  396)    on  passenger  alighting  from  moving  train; 
(38  L.R.A.  787)   on  negligence  in  getting  on  or  off  moving  train;    (33  Am.  St. 
Rep.  28)  on  contributory  negligence  as  question  for  jury. 
Determination     of    contributory     negligence     per     ><•. 

Cited  in  Citizens'  Street  R.  Co.  v.  Spahr,  7  Ind.  App.  31,  33  N.  E.  446,  holding 
whether  person  is  guilty  of  negligence  in  boarding  street  car  depends  upon  fact* 
of  each  particular  case;  Dewald  v.  Kansas  City,  Ft.  S.  &  G.  R.  Co.  44  Kan.  590,  24 
Pac.  1101,  holding  person  jumping  from  moving  train  before  reaching  station 
guiltj  of  contributory  negligence  as  matter  of  law;  Hughes  v.  Fagin,  46  Mo.  App. 


1421  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  819 

47  (dissenting  opinion),  majority  holding  carpenter  not  guilty  of  contributory 
negligence  per  se,  in  leaning  part  of  his  body  in  elevator  shaft  while  elevator  in 
use  above  him;  Spencer  v.  St.  Louis  Transit  Co.  Ill  Mo.  App.  661,  86  S.  W.  593, 
holding  it  not  negligence  as  a  matter  of  law  to  attempt  to  board  a  car  moving  as 
fast  as  a  man  going  at  a  fast  walk. 
Contributory  negligence  in  or  about  cars. 

Cited  in  Harris  v.  Lincoln  Traction  Co.  78  Neb.  684,  111  N.  W.  580,  holding 
mere  fact  that  a  car  is  being  run  in  violation  of  a  speed  ordinance  does  not  give 
one  injured  by  his  own  carelessness  a  right  of  action;  Wheeler  v.  Oregon  R.  & 
Nav.  Co.  16  Idaho,  394,  102  Pac.  347,  holding  failure  to  obey  a  statutory  duty, 
not  to  create  a  liability  where  plaintiff  is  guilty  of  contributory  negligence; 
Hornstein  v.  United  R,  Co.  195  Mo.  451,  4  L.R.A. (N.S.)  736,  113  Am.  St. 
Rep.  693,  92  S.  W.  884,  6  A.  &  E.  Ann.  Cas.  699,  holding  that  a  passenger  alight- 
ing from  street  car  should  exercise  ordinary  care  to  determine  whether  another 
car  is  coming  on  other  track :  Brady  v.  Kansas  City,  St.  L.  &  C.  R.  Co.  206  Mo. 
530,  102  S.  W.  978,  holding  where  cars  might  be  uncoupled  without  going  between 
them  that  by  going  between  party  is  guilty  of  contributory  negligence;  Foreman 
v.  Norfolk,  P.  &  N.  News  Co.  106  Va.  774,  56  S.  E.  805,  holding  one  stepping  off 
a  street  car  immediately  in  front  of  a  rapidly  approaching  car  on  adjacent  track 
to  be  guilty  of  contributory  negligence  when  he  could  have  stepped  on  another 
side  and  also  could  have  seen  approaching  car  had  he  glanced  up;  Coel  v.  Green 
Bay  Traction  Co.  147  Wis.  237,  133  N.  W.  23,  holding  that  both  person  alighting 
from  street  car  where  there  are  double  tracks  and  motorman  on  approaching  car 
must  exercise  care  commensurate  with  the  danger. 
Proceeding  after  overruling:  of  demurrer  to  evidence. 

Cited  in  Storck  v.  Mesker,  55  Mo.  App.  32.  holding  demurrer  to  evidence  waived 
by  defendant  by  introduction  of  evidence;  Cain  v.  Gold  Mountain  Min.  Co.  27 
Mont.  535,  71  Pac.  1004,  holding  defendant  assumes  risk  of  supplying  defects,  by 
offering  evidence  after  refusal  of  nonsuit;  Fuchs  v.  St.  Louis,  167  Mo.  631,  57  L. 
R.  A.  139,  67  S.  W.  610,  considering  whole  evidence  upon  defendant's  saving  point 
of  court's  refusal  to  find  for  defendant  at  close  of  case;  St.  Louis  &  S.  F.  R.  Co. 
v.  Loftis,  25  Okla.  498,  106  Pac.  824,  holding  that  where  demurrer  to  evidence  is 
overruled,  but  should  have  been  sustained  because  omission  of  testimony,  if  de- 
fendant supplies  omission  error  in  overruling  demurrer  is  cured. 
Review  by  appellate  court  on  demurrer  to  evidence. 

Cited  in  Brock  v.  St.  Louis  Transit  Co.  107  Mo.  App.  116,  81  S.  W.  219 ;  Kenne- 
fick-Hammond  Co.  v.  Norwich  Union  F.  Ins.  Soc.  119  Mo.  App.  315,  80  S.  W.  694; 
De  Maet  v.  Fidelity  Storage  Packing  &  Moving  Co.  121  Mo.  App.  94,  96  S.  W. 
1045;  Kenefick  v.  Norwich  Union  F.  Ins.  Co.  205  Mo.  307,  103  S.  W.  957, — holding 
where  at  the  close  of  the  testimony  a  party  demurs  to  the  evidence  as  a  whole 
the  appellate  court  is  required  to  review  all  the  evidence  heard. 
Street  railways. 

Cited  in  note  (8  L.  R.  A.  539)  on  electric  railways  in  city  streets. 
Carrier's  duty  as   to  safety  of   passengers. 

Cited  in  Fillingham  v.  St.  Louis  Transit  Co.  102  Mo.  App.  582,  77  S.  W.  314, 
holding  carrier's  duty  as  to  safety  of  passenger  requires  latter  to  be  put  off  at 
reasonably  safe  place;  Nelson  v.  Metropolitan  Street  R.  Co.  113  Mo.  App.  708,  88 
S.  W.  1119,  holding  it  duty  of  street  railway  company  to  hold  a  car  stationary 
while  passenger  is  alighting;  Deskins  v.  Chicago,  R.  I.  &  P.  R.  Co.  151  Mo.  App. 
436,  132  S.  W  45,  to  the  point  that  degree  of  care  required  of  carrier  while  pas- 
ienger  is  leaving  vehicle  is  as  high  as  that  required  while  he  is  in  transit. 

Cited   in  notes    (4   L.R.A.  (N.S.)    731)    on   injury  to  street  car  passenger  who 


7  L.R.A.  819]  L.  R.  A.  CASES  AS  AUTHORITIES.  1422 

upon  alighting  passes  around  end  of  car  and  is  struck  by  car  on  other  track; 
(20  L.R.A.  (X.S.)   1218)   on  duty  and  liability  of  street  railway  to  passenger  at- 
tempting to  enter  or  leave  car  on  wrong  side. 
Proximate    cause. 

Cited  in  Shareman  v.  St.  Louis  Transit  Co.  103  Mo.  App.  529,  78  S.  W.  846, 
holding  woman's  conduct,  in  stepping  off  of  moving  car,  without  peril  to  confuse 
her,  proximate  cause  of  injury. 
Sufficiency  of  exception  to  instructions. 

Cited  in  McKee  v.  Jones  Dry  Goods  Co.  152  Mo.  App.  243,  132  S.  W.  1191, 
to  the  point  that  one  exception  to  the  refusal  of  several  instructions  is  sufficient : 
Ervin  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  158  Mo.  App.  45,  139  S.  W.  498,  holding 
that  exception  to  instructions  generally  is  sufficient  without  pointing  out  specific 
instruction  challenged. 

7  L.  R.  A.  822,  DOUGLASS  v.  MERCHANTS'  IXS.  CO.  118  N.  Y.  484,  23  N.  E. 

806. 
Accounting:    by    corporation    officers. 

Cited  in  footnote  to  Eaton  v.  Robinson,  29  L.  R.  A.  100,  which  requires  officers 
to  account  for  salaries  voted  and  paid  to  deprive  stockholders  of  rights. 
Presumption    of    continuance    of    contract    of    employment. 

Cited  in  Mason  v.  Secor,  76  Hun,  179,  27  N.  Y.  Supp.  570,  holding  continuation 
of  employee  in  service  of  new  partnership  raises  no  presumption  of  continuation 
of  former  contract  of  service;  Lichtenhein  v.  Fisher,  87  Hun,  398,  34  X.  Y.  Supp. 
304,  holding  that  presumption  is  of  continuance  of  contract  where  employee  hired 
for  annual  compensation  continues  over  term;  Bennett  v.  Mahler,  90  App.  Div. 
27,  85  N.  Y.  Supp.  669,  holding  that  continuance  of  service  beyond  term,  under  old 
contract  of  hiring  for  year,  operated  as  new  hiring  for  year;  Selley  v.  American 
Lubricator  Co.  119  Iowa,  600,  93  N.  W.  590,  holding  salary  of  official  after  time  of 
his  discharge  for  good  cause  by  directors,  not  recoverable;  Mendelson  v.  Bronner, 
124  App.  Div.  398,  108  N.  Y.  Supp.  807,  holding  where  a  servant  employed  for 
one  year  remains  in  his  master's  employ  after  expiration  of  year  the  law  im- 
plies a  renewal  of  contract  for  another  year;  Bradlee  v.  Southern  Coast  Lumber 
Co.  193  Mass.  382,  79  X.  E.  777,  holding  an  agreement  to  sell  on  commission 
is  an  agency  revocable  at  any  time  where  no  time  of  agency  is  stated. 
Corporation  by-laws. 

Cited  in  Fowler  v.  Great  Southern  Teleph.  &  Teleg.  Co.  104  La.  755,  29  So.  271, 
holding  power  of  board  of  directors  in  hiring  employee  and  fixing  salary  in  excess 
of  charter  and  by-laws  not  binding  on  corporation. 

Cited  in  note  (25  L.  R.  A.  48)  on  effect  of  corporate  by-laws  as  notice. 
Duration  of  contract  of  hiring  specifying  no  term. 

Cited  in  note  (25  L.R.A. (X.S.)  531)  on  duration  of  contract  of  hiring  specify- 
ing no  term,  but  fixing  compensation  at  a  certain  amount  per  day,  week,  month, 
or  year. 
Power  of  directors  to  remove   appointee. 

Cited  in  note  (23  L.R.A. (X.S.)  1294)  on  power  of  directors  to  remove  ap- 
pointee who  is  one  of  the  class  of  officers  to  whom  management  confided. 

7  L.  R.  A.  824,  BURTOX  v.  TUITE,  80  Mich.  218,  45  X.  W.  88. 
Examination    of    public   records. 

Cited  in  Aitcheson  v.  Huebner,  90  Mich.  645,  51  X.  W.  634,  holding  state  tax 
land  book  public  record  subject  to  inspection  by  any  citizen;  Day  v.  Button,  96 
Mich.  602,  56  X.  W.  3,  upholding  right  to  examine  records  and  files  in  office  of 


1423  L.  R,  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  831 

register  of  deeds  to  make  memoranda  therefrom;  Burton  v.  Reynolds,  110  Mich. 
355,  68  X.  YV.  217,  holding  general  public  under  proper  restrictions  has  right  to 
information  in  public  offices  relating  to  titles. 

Cited  in  notes  (27  L.R.A.  82)  on  right  to  inspect  public  records;  (47  L.  ed.  U. 
S.  741)  on  right  of  access  to  public  records  for  private  abstract  purposes. 

7  L.  R.  A.  826,  PECK  v.  BANK  OF  AMERICA,  16  R.  1.  710,  19  Atl.  369. 
Xotiee  of    \\  lui  t    irnqniry  tvonld  disclose. 

Cited  in  Maas  v.  German  Sav.  Bank,  36  Misc.  157,  72  N.  Y.  Supp.  1068,  holding 
bank  chargeable  with  knowledge  that  domestic  administrator  had  been  appointed 
Avhen  foreign  administrator  applied  for  deposit  of  intestate;  Spellissy  v.  Cook  & 
B.  Co.  58  App.  Div.  285,  68  X.  Y.  Supp.  995,  holding  transfer  made  by  one  in  his 
own  name  as  attorney  for  another  is  notice  that  he  is  not  owner;  Hughes  v. 
Drovers'  &  M.  Xat.  Bank,  86  Md.  424,  38  Atl.  936,  holding  corporation  not  bound 
to  examine  whether  transferrer  with  power  to  transfer  is  attempting  fraud;  Peck 
v.  Providence  Gas  Co.  17  R.  I.  279,  15  L.  R.  A.  647,  21  Atl.  543,  holding  fact  that 
transfers  of  stock  made  through  bank  is  not  notice  to  corporation  that  executrix 
under  will  had  pledged,  and  not  sold,  them;  Strain  v.  Palmer,  86  C.  C.  A.  618, 
159  Fed.  632,  holding  knowledge  of  pendency  of  an  action  sufficient,  to  put  one 
-on  inquiry  as  to  relief  demanded. 

Cited  in  footnote  to  Wooten  v.  Wilmington  &  W.  R.  Co.  56  L.  R.  A.  615,  which 
holds  corporation  permitting  transfer  of  stock  on  books  by  executor,  bound  to  see 
that  provisions  of  will  carried  out. 

Cited  in  notes   (15  L.R.A.  645)   on  duty  of  corporation  as  to  transfer  of  stock 
lield  in  trust;    (1  L.R.A.  <X.S.)   190)   on  use  of  word  "trustee"  as  affecting  nego* 
tiability  or  notice  of  rights  of  beneficiaries  of  negotiable  paper. 
"When   statute   of  limitations   l»e«iiis   to   rnn. 

Cited  in  Reynolds  v.  Hennessy,  17  R.  I.  178,  23  Atl.  639,  holding  statute  of  lim- 
itations does  not  begin  to  run  while  cause  of  action  is  fraudulently  concealed  from 
him. 

Cited  in  footnotes  to  Sanborn  v.  Gale,  26  L.  R.  A.  864,  which  holds  running  of 
limitation  against  action  for  alienation  of  wife's  affections  not  prevented  by  agree- 
ment of  parties  to  adultery  known  to  husband  to  deny  same:  Smith  v.  Blachley, 
53  L.  R.  A.  849,  which  holds  running  of  limitation  against  action  to  recover  back 
money  not  prevented  by  fraud,  unless  investigation  prevented  by  affirmative  ef- 
forts; Mereness  v.  First  Xat.  Bank,  51  L.  R.  A.  410,  which  holds  running  of 
limitations  on  demand  certificate  of  deposit,  not  interrupted  by  bank's  misrepre- 
sentations in  denial  of  liability;  Pietsch  v.  Milbrath.  68  L.R.A.  945,  which  holds 
that  the  fraudulent  concealment  of  a  cause  of  action  at  law  will  not  prevent 
running  of  limitations  where  the  statute  expressly  states  that  it  shall  not  run 
under  such  circumstances  in  equity  cases. 

Cited  in  notes    (8  L.R.A.  687,  688)    on  statutes  of  limitation   in  case  of  con- 
cealed fraud;    (16  Eng.  Rul.  Cas.  258)    as  to  when  limitations  begin  to  run  in 
case  of  fraud  or  concealment. 
Taking:  advantage  of  own   «  r«>nu. 

Cited  in  Atcliison,  T.  &  S.  F.  R.  Co.  v.  Atchison  Grain  Co.  68  Kan.  596,  75 
Pac.  1051,  1  A.  &  E.  Ann.  Cas.  639  (dissenting  opinion),  on  the  inability  of  one 
to  take  advantage  of  his  own  wrong. 

7  L.  R.  A.  831,  JONES  v.  GLIDEWELL,  53  Ark.  161,  13  S.  W.  723. 
Conelnsiveness    of   finding:   npon   appellate   conrt. 

Cited  in  Freeman  v.  Lazarus.  61  Ark.  257.  32  S.  W.  680.  holding  finding  of 
fraud  by  circuit  court,  supported  by  evidence,  must  stand;  Dunnington  v.  Frick 


7  L.R.A.  831]  L.  R.  A.  CASES  AS  AUTHORITIES.  1424 

Co.  60  Ark.  258,  30  S.  W.  212,  and  Robson  v.  Hough.  56  Ark.  624,  20  S.  W.  523, 
holding  same  presumption  on  appeal  indulged  in  as  to  findings  as  in  verdict  of 
jury;  Mason  v.  Gates,  90  Ark.  377,  119  S.  W.  246,  holding  that  findings  of  fact  of 
a  trial  judge  sitting  as  a  jury  are  conclusive  on  appeal  if  based  on  evidence. 
Frauds    vitiating    elections. 

Cited  in  Freeman  v.  Lazarus,  61  Ark.  257,  32  S.  W.  680,  holding  excise  election 
in  township  invalidated  by  misconduct  of  election  judges;  Atty.  Gen.  v.  McQuade, 
94  Mich.  443,  53  N.  W.  944,  holding  parties,  although  not  participating,  cannot 
profit  by  election  frauds. 
Secrecy  of  the  ballot. 

Cited  in  Ex  parte  Arnold,  128  Mo.  261,  33  L.  R.  A.  389,  49  Am.  St.  Rep.  557, 
30  S.  W.  768,  holding  "election  by  ballots"  means  secret  ballot;  Schuman  v. 
Sanderson,  73  Ark.  190,  83  S.  W.  940,  holding  that  returns  from  an  election  will 
not  be  thrown  out  because  voters  were  allowed  to  cast  open  ballots. 

Distinguished  in  Re  Massey,  45  Fed.  635,  holding  secrecy  of  ballot  does  not  pre- 
vent courts  of  state  from  having  access  to  them  to  enforce  criminal  law. 
Contested    elections. 

Cited  in  Williams  v.  Buchanan,  86  Ark.  267,  110  S.  W.  1024,  holding  where 
election  returns  of  a  precinct  are  discarded  in  an  election  contest  the  parties  are 
entitled  to  prove  the  number  of  votes  in  their  favor  by  parol  evidence;  Rampen- 
dahl  v.  Crump,  24  Okla.  891,  105  Pac.  201,  holding  that  decision  by  trial  court 
rejecting  ballots  cast  in  certain  precinct,  will  not  be  disturbed  on  appeal  where 
every  provision  of  law  governing  holding  of  election  was  wilfully  violated; 
Nelson  v.  Sneed,  112  Tenn.  48,  83  S.  W.  786,  holding  that,  the  rules  of  pleading 
and  practice  applicable  to  civil  cases  a^e  applicable  to  election  contests. 

Cited  in  footnote  to  Gillespie  v.  Dion,  33  L.  R.  A.  703,  which  holds  failure  to 
allege  election  contestant's  qualification  to  maintain  proceeding,  fatal. 

Cited   in   notes    (12   L.R.A.   705)    on   notice  to   contestee   in  election   contest; 
(90  Am.  St.  Rep.  89)   on  irregularities  avoiding  elections. 
Control   of   conrt   over   examination    of   witnesses. 

Cited  in  Hughes  v.  State,  70  Ark.  423,  68  S.  W.  676,  holding  that  court  abused 
discretion  in  stopping  cross-examination  upon  material  point  in  prosecution  for 
rape:  Campbell  v.  Campbell,  30  R.  I.  67,  73  Atl.  354.  holding  that  a  judge  may 
in  the  exercise  of  a  reasonable  discretion  limit  the  number  of  witnesses  to  a 
certain  point. 

7  L.  R.  A.  836,  McCULLOUGH  v.  ANDERSON,  90  Ky.  126,  13  S.  W.  353. 
Estates   with    power   of   appointment    or    to    dispose   of   property. 

Cited  in  Coats  v.  Louisville  &  N.  R.  Co.  92  Ky.  274,  17  S.  W.  564,  holding  that 
devise  to  wife  with  absolute  power  of  disposition,  with  remainder  over  of  unex- 
pended remainder,  creates  life  estate ;  Dudley  v.  Weinhart,  93  Ky.  404,  20  S.  W. 
308,  upholding  power  of  appointment  to  change  or  cancel  any  gift  or  devise  in 
will;  Payne  v.  Johnson,  95  Ky.  184,  24  S.  \V.  238,  holding  intention  to  execute 
power  of  appointment  must  be  clear;  Mulvane  v.  Rude,  146  Ind.  483,  45  N.  E.  659, 
holding  donee  of  life  estate  with  power  of  disposition  does  not  take  fee;  McCal- 
lister  v.  Bethel,  97  Ky.  6,  29  S.  W.  745,  holding  devise  to  A.  in  trust  for  B.,  and 
at  B's.  death  to  his  children,  if  none,  to  any  person  to  whom  B.  may  devise,  passes 
fee  subject  to  be  defeated;  Dickey  v.  Barnstable,  122  Iowa,  577,  98  N.  W.  368, 
holding  that  life  estate  in  property  may  be  granted  to  one  person  with  remain- 
der to  third  person,  and  power  given  life  tenant  to  defeat  remainder  by  disposi- 
tion of  property;  Re  Weien,  139  Iowa,  669,  18  L.R.A.  (N.S.)  473,  116  N.  W.  791 
(dissenting  opinion)  on  title  of  one  given  an  absolute  power  of  disposition  by 


1425  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  843 

will;  Columbia  Trust  Co.  v.  Christopher,  133  Ky.  343,  117  S.  W.  943,  holding 
that  an  estate  might  be  given  subject  to  a  power  in  another  person;  Becker  v. 
Roth,  132  Ky.  433,  115  S.  W.  761,  holding  where  testator  devised  to  his  wife 
a  fee  simple  estate  with  a  limitation  over  of  such  part  as  remained  undisposed 
of  on  contingency  of  wife's  subsequent  marriage  that  such  limitation  is  void; 
Speyer  v.  McXamara,  144  Ky.  776,  139  S.  W.  J092,  holding  that  will  of  husband 
giving  his  "entire  estate  of  all  kinds  to  be  used  and  enjoyed  by  her  as  she  may 
deem  best  for  her  and  my  children"  with  power  of  disposal,  vested  fee  in  widow ; 
Herring  v.  Williams,  153  N.  C.  235,  138  Am.  St.  Rep.  659,  69  S.  E.  140,  holding 
that  under  devise  to  wife  of  property  "to  have  and  to  hold  during  life  and  at 
her  death,  said  property,  or  as  much  thereof  as  may  be  in  her  possession  at  time 
of  death  of  wife"  to  adopted  daughter,  her  heirs  and  assigns  forever,  wife  took 
life  estate  with  power  of  disposal  and  daughter  took  undisposed  of  property  in 
fee.  •• 

Cited  in  footnotes  to  Cornwell  v.  Wulff,  45  L.  R.  A.  53,  which  holds  absolute 
power  of  disposition  in  instrument  conveying  land  carries  full  power  in  land 
itself;  Roth  v.  Rauschenbusch,  61  L.  R.  A.  455,  which  holds  fee  simple  by  devise 
to  one  absolutely  and  forever,  not  cut  down  by  subsequent  direction  as  to  dispo- 
sition of  any  remainder  on  devisee's  death. 

Cited  in  notes   (9  L.  R.  A.  168)   on  devise  of  life  estate  to  wife;    (10  L.  R.  A. 
757)   on  devise  to  wife  for  life  with  power  to  sell  or  dispose  of  estate;    (1  L.R.A. 
(X.S.)    783;    6  L.R.A.  (X.S)    1189)    on  remainder  after  life  estate  with  absolute 
power  of  disposal. 
Equitable  conversion. 

Cited  in  note  (37  Am.  St.  Rep.  146)   on  equitable  conversion  by  will. 

7  L.  R.  A.  840,  BAIT  v.  MALLOX,  151  Mass.  477,  25  N.  E.  17. 
N  <>t  !<•»•  as  to  title  to  land. 

Cited  in  note  (8  L.  R.  A.  211)  on  constructive  notice  by  possession  as  to  title 
to  land. 

7  L.  R.  A.  843,  CODY  v.  NEW  YORK  &  X.  E.  R,  CO.  151  Mass.  462,  24  N.  E.  402. 
\i-iiliiiciKM-oi"  passenger  attempting  to  leave  car. 

Cited  in  Jones  v.  Baltimore  &  O.  R.  Co.  4  App.  D.  C.  173,  holding  negligence  of 
passenger  leaving  moving  train  question  for  jury;  Washington  &  G.  R.  Co.  v. 
Hickey,  5  App.  D.  C.  471,  holding  negligence  of  passenger  jumping  from  street 
car  to  avoid  imminent  collision,  for  jury;  Gannon  v.  New  York,  X.  H.  &  H.  R. 
Co.  173  Mass.  42,  43  L.  R.  A.  834,  footnote  p.  833,  52  X.  E.  1075,  which  holds  car- 
rier liable  for  injury  to  passenger  while  impulsively  trying  to  escape  from  car 
in  which  oil  lamp  caught  fire. 

Cited  in  footnotes  to  Tuttle  v.  Atlantic  City  R.  Co.  54  L.R.A.  582,  which 
authorizes  recovery  for  fall  while  trying  to  escape  from  derailed  car;  Palmer  v. 
Warren  Street  R.  Co.  63  L.R.A.  507,  which  holds  passenger  not  negligent  in 
jumping  from  moving  car  to  avoid  impending  collision. 

Cited  in  note  (8  L.  R.  A.  84)  on  causal  connection  broken  by  intervening  agency. 
—  Riding  in  wrong  place. 

Cited  in  Lane  v.  Choctaw,  O.  &  G.  R.  Co.  19  Okla,  338,  91  Pac.  883,  holding 
it  not  negligence  per  se,  for"  a  passenger  on  a  mixed  train  to  occupy  a  seat  in 
a  baggage  car. 
In   emergency. 

Cited  in  Tozier  v.  Haverhill  &  A.  Street  R.  Co.  187  Mass.  180,  72  N.  E.  953, 
holding  that  a  party  can  not  be  deemed  negligent  merely  because  he  failed  to 
L.R.A.  Au.  Vol.  I.— 90. 


7  L.R.A.  843]  L.  R.  A.  CASES  AS  AUTHORITIES. 

do  that  which  would  have  been  best  in  a  case  of  sudden  emergency;  Steverman 
v.  Boston  Elev.  R.  Co.  205  Mass.  512,  91  X.  E.  919,  to  the  point  that  passenger 
will  be  deemed  to  have  taken  reasonable  precaution  if  in  anticipation  of  bodily 
injury  she  acts  on  urgency  of  the  moment  and  is  hurt. 

Cited  in  notes  (22  L.R.A.(N.S.)  756)  on  negligence  of  passenger  in  getting  off 
moving  train  to  avoid  impending  danger;  (37  L.R.A.  (N.S.)  45)  on  care  required 
in  sudden  emergency. 

7  L.  R.  A.  845,  GERMAN  NAT.  BANK  v.  COORS,  14  Colo.  202,  23  Pac.  328. 
Bonn   fide   purchaser   of   commercial   paper. 

Cited  in  Mater  v.  American  Nat.  Bank,  8  Colo.  App.  330,  46  Pac.  221,  holding 
innocent  holder  for  value  may  recover  on  note,  although  conditions  as  to  exten- 
sion of  time  at  foot,  were  wrongfully  detached  by  another;  Tourtelotte  v.  Brown, 
1  Colo.  App.  417,  29  Pac.  130,  holding  notice  of  defenses  that  would  defeat  com- 
mercial paper  in  the  hands  of  the  holder  must  be  affirmatively  established; 
Tourtelotte  v.  Brown,  1  Colo.  App.  417,  29  Pac.  130,  holding  a  record  of  pro- 
ceedings in  respect  to  a  note  which  was  abandoned  before  final  hearing  not  to  ef- 
fect rights  of  a  subsequent  bona  fide  endorsee;  Mater  v.  American  Nat.  Bank.  8 
Colo.  App.  330,  46  Pac.  221,  holding  memorandum  on  a  note  not  incorporated  so* 
as  to  become  part  of  note  not  binding  on  an  innocent  holder  where  memorandum 
had  been  removed;  Wedge  Mines  Co.  v.  Denver  Nat.  Bank,  19  Colo.  App.  189,  7£ 
Pac.  873,  holding  that  a  bank,  on  which  a  check  is  drawn  and  which  is  endorsed 
in  blank,  on  taking  up  check  in  clearing  house  is  presumed  to  be  acting  in  good- 
faith. 

Cited  in  note    (4  Eng.  Rul.  Cas.  363)    on  bona  fide  purchaser  of  note  or  bill 
with  restricted  indorsement. 
Parol  evidence  of  Indorsement  for  collection. 

Cited  in  note  (17  L.R.A.(N.S-)  840)  on  right  to  show  by  parol  that  indorsement 
unrestricted  in  form  was  for  collection  only. 

7  L.  R.  A.  847,  PORTER  v.  PIERCE,  120  N.  Y.  217,  24  N.  E.  281. 
Sunday,   In   computing-   time. 

Cited  in  Miner  v.  Tilley,  54  Mo.  App.  629,  holding,  in  computing  time  in  which 
act  may  be  done,  Sunday  not  considered  if  last  day;  Bowles  v.  Brauer,  89  Va. 
468,  16  S.  E.  356,  holding  in  computing  statutory  time  Sunday  is  included  unless 
last  day,  when  act  may  generally  be  done  on  succeeding  day;  Craig  v.  Butler,  S3- 
Hun,  289,  31  N.  Y.  Supp.  963,  holding  payments  may  fall  due  on  Sunday,  but. 
rule  of  dies  non  extends  time  of  payment;  Ryer  v.  Prudential  Ins.  Co.  185  N.  Y. 
6,  77  N.  E.  727,  holding  where  statute  requires  that  a  certain  thing  be  done 
within  a  certain  time  it  must  be  so  done  though  last  day  is  Sunday:  Kuhne  v. 
Ahlers,  45  Misc.  455,  92  N.  Y.  Supp.  41,  holding  in  respect  to  statute  of  limita- 
tions of  actions  the  last,  though  Sunday  is  counted. 

Cited  in  notes  (14  L.  R.  A.  122)  on  extension  of  time  for  redemption  when  last: 
day  falls  on  Sunday;    (49  L.R.A.  235)   on  computation  of  time  for  redemption; 
(78  Am.  St.  Rep.  377)  on  exclusion  of  Sunday  in  computation  of  time. 

Distinguished  in  Ryer  v.  Prudential  Ins.  Co.  110  App.  Div.  898,  95  N.  Y.  Supp. 
1158,  holding  that   Sunday  is,  counted   in  counting  a  period  of  months. 
Violation   of   Sunday   law. 

Cited  in  footnote  to  Sullivan  v.  Maine  C.  R.  Co.  8  L.  R.  A.  427,  which  holds- 
riding  on  Sunday  for  exercise  not  violation  of  statute. 


1427  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  852 

7  L.  R.  A.  849,  DEPOSIT  BANK  v.  FAYETTE  NAT.  BANK,  90  Ky.  10,  13  S. 

W.  339. 
Recovering   sum    paid   on   forged   check. 

Cited  in  Xeal  v.  Coburn,  92  Me.  148,  69  Am.  St.  Rep.  495,  42  Atl.  348,  and 
First  Nat.  Bank  v.  First  Nat.  Bank,  58  Ohio  St.  212,  41  L.  R.  A.  585,  65  Am.  St. 
Rep.  748,  50  N.  E.  723,  holding  drawee  bank  cannot  recover  amount  paid  bona 
fide  holder  on  forged  check;  First  Nat.  Bank  v.  Marshalltown  State  Bank,  107 
Iowa,  329,  44  L.  R.  A.  132,  77  N.  W.  1045,  holding  drawee  bank  which  pays 
forged  check  to  bona  fide  holder  who  is  without  negligence  cannot  recover; 
\Yoods  v.  Colony  Bank,  114  Ga.  685,  56  L.  R.  A.  931,  40  S.  E.  720,  holding 
responsibility  of  drawee  bank  paying  forged  check  absolute  only  in  favor  of 
holder  without  fault;  Canadian  Bank  of  Commerce  v.  Bingham,  30  Wash.  490, 
60  L.  R.  A.  955,  71  Pac.  43,  holding  that  drawee  bank  paying  forged  checks  may 
recover  from  bank  taking  them  in  course  of  business  and  negligently  pay- 
ing same. 

Cited  in  footnotes  to  Gifford  v.  Rutland  Sav.  Bank,  11  L.  R.  A.  794,  which 
holds  savings  bank  not  liable  for  paying  deposit  to  wrong  person  presenting 
passbook;  Kummel  v.  Germania  Sav.  Bank,  13  L.  R.  A.  786,  which  holds  vigi- 
lance to  detect  forgery  due  to  depositor  by  savings  bank  officers;  Janin  v.  Lon- 
don &  S.  F.  Bank,  14  L.  R.  A.  320,  which  holds  depositor's  delay  in  returning 
forged  check  no  defense  to  bank  not  injured  thereby;  Northwestern  Nat.  Bank  v. 
Bank  of  Commerce,  15  L.  R.  A.  102,  which  holds  bank  crediting  forged  draft  to 
payee  and  forwarding  for  collection  a  bona  fide  holder;  Iron  City  Nat.  Bank  v.. 
Ft.  Pitt  Nat.  Bank,  23  L.  R.  A.  615,  which  denies  right  of  recovery  by  payer 
of  forged  check. 

Cited  in  notes  (27  L.R.A.  636)  on  duty  of  bank  to  know  signature  of  drawer; 
(10  L.R.A.  (N.S.)  51,  65)  on  right  of  drawee  to  recover  money  paid  on  forged 
check  or  draft;  (94  Am.  St.  Rep.  648)  on  liability  of  one  receiving  payment  of 
check  through  forged  indorsement. 

Disapproved  in  First  Nat.  Bank  v.  Bank  of  Wyndmere,  15  N.  D.  303.  10 
L.R.A.  (N.S.)  55,  125  Am.  St.  Rep.  588,  108  N.  W.  546,  holding  that  the 
drawee  of  a  forged  check  may  recover  money  paid  thereon  provided  the  holder 
was  not  misled  or  prejudiced  by  drawee's  failure  to  detect  the  forgery. 

7  L.  R.  A.  852,  NATIONAL  BUTCHERS  &  D.  BANK  v.  HUBBELL,  117  N.  Y. 

384,  15  Am.  St.  Rep.  515,  22  N.  E.  1031. 

Title   to   proceeds   of   paper   deposited   for   collection   and   effect    of    Insol- 
vency   generally. 

Cited  in  Commercial  Nat.  Bank  v.  Hamilton  Nat.  Bank,  42  Fed.  881,  holding 
subagent  for  collecting  liable  for  amount  collected  and  not  remitted  to  owner  or 
agent,  though  credit  given  to  agent  and  by  it  to  owner;  Beal  v.  Somerville,  17 
L.  R.  A.  29o.  1  C.  C.  A.  606,  5  U.  S.  App.  14,  50  Fed.  651,  holding  checks  depos- 
ited indorsed  for  deposit  do  not  become  cash  of  bank  until  collected,  though- 
immediately  credited  to  depositor;  Peoples  Bank  v.  Jefferson  County  Sav.  Bank, 
106  Ala.  533,  54  Am.  St.  Rep.  59,  17  So.  728,  holding  bank  receiving  draft  for 
collection  not  authorized  to  treat  proceeds  as  its  own;  People's  &  D.  Bank  v. 
Craig,  63  Ohio  St.  382,  52  L.  R.  A.  874,  81  Am.  St.  Rep.  639,  59  N.  E.  102, 
holding  one  receiving  note  for  collection  cannot  forward  amount  in  payment  and 
retain  note  as  his  own;  Union  Nat.  Bank  v.  Citizens'  Bank,  153  Ind.  55,  54  N~ 
E.  97,  holding  depositing  bank  not  preferred  creditor  where  insolvent  collecting- 
bank  collected  note  and  remitted  draft  on  correspondent  bank  which  refused  pay- 
ment; Commercial  Nat.  Bank  v.  Armstrong.  148  U.  S.  57,  37  L.  ed.  367,  13  Sup- 


7  L.R.A.  852]  L.  R.  A.  CASES  AS  AUTHORITIES.  1428 

Ct.  Rep.  533,  holding  money  collected  by  subagent  on  paper  deposited  with  agent 
for  collection  does  not  belong  to  receiver  of  agent;  Armour  Packing  Co.  v.  Davis, 
118  N.  C.  554,  24  S.  E.  365,  holding  tacit  agreement  that  amount  of  check,  if 
uncollected,  should  be  charged  to  depositor's  account,  rendered  transaction  bail- 
ment for  collection;  Tyson  v.  Western  Nat.  Bank,  77  Md.  419,  23  L.  R.  A.  163,  26 
Atl.  520,  holding  check  deposited  by  customer  for  collection  for  account  of  in- 
dorsers  does  not  pass  title  to  bank;  Irwin  v.  Reeves  Pulley  Co.  20  Ind.  App.  112, 
48  N.  E.  601,  holding  bank  accepting  for  collection  draft  payable  elsewhere, 
liable  only  for  ordinary  care  in  selecting  correspondent,  and  not  for  its  de- 
fault; National  Bank  of  Commerce  v.  Johnson,  6  N.  D.  184,  69  N.  W.  49,  hold- 
ing certificate  of  deposit,  indorsed  and  deposited  for  collection  and  credit,  re- 
mains property  of  depositor;  Citizen's  Nat.  Bank  v.  City  Nat.  Bank,  111  Iowa, 
215,  82  N.  W.  464,  holding  drawee  of  check  not  bound  to  detect  forgery  of  any 
other  signature  than  that  of  drawer;  Freeman  v.  Exchange  Bank,  87  Ga.  47, 
13  S.  E.  160,  holding  payee  of  bill  of  exchange,  indorsing  for  deposit  to  credit 
of  himself,  retains  ownership  of  proceeds  which  are  subject  to  garnishment  by 
his  creditor;  Blair  v.  Hill,  50  App.  Div.  36,  63  N.  Y.  Supp.  670,  holding  pro- 
ceeds of  check  collected  for  owner  by  agent  and  commingled  with  his  own 
remain  property  of  owner;  Arnot  v.  Bingham,  55  Hun,  556,  9  N.  Y.  Supp.  68, 
holding  note  sent  to  bank  for  collection  only  remains  property  of  sender,  who 
can  collect  proceeds  from  bank's  receiver;  Wilson  v.  Marion,  147  N.  Y.  594, 
42  N.  E.  190,  holding  purchaser  of  real  estate  from  assignee  for  benefit  of  cred- 
itors under  fraudulent  assignment  can  hold  it  if  ignorant  of  fraudulent  intent 
of  assignor;  Knower  v.  Central  Nat.  Bank,  124  N.  Y.  561,  21  Am.  St.  Rep. 
700,  27  N.  E.  247,  holding  creditor  of  assignor  for  benefit  of  creditors  to  whom 
assignee  paid  money  can  hold  it  against  creditor  setting  aside  the  assignment; 
Hutchinson  v.  Manhattan  Co.  9  Misc.  344,  29  N.  Y.  Supp.  1103,  holding  title 
of  draft,  indorsed  generally,  but  shown  to  be  for  collection  only,  remains  in  in- 
dorser;  Wolff  v.  Zeller,  31  Misc.  257,  64  N.  Y.  Supp.  129,  holding  vendor  in  fraud- 
ulent sale  may  recover  chattels  from  assignee  of  vendee  when  sale  rescinded  be- 
fore assignment;  Gindre  v.  Kean,  7  Misc.  584,  28  N.  Y.  Supp.  4,  holding  consign- 
ors of  goods  to  del  credere  factor  entitled  to  recover  from  his  assignee  for 
creditors'  moneys  collected  from  purchasers  subsequent  to  the  assignment ;  Asher 
v.  Deyoe,  77  Hun,  533,  28  N.  Y.  Supp.  890,  holding  bank  taking  mortgage  to 
secure  antecedent  debt  on  property  purchased  with  intention  of  not  paying  there- 
for, not  entitled  to  hold  such  property  as  against  seller;  Bank  of  Clarke  County  v. 
Oilman,  81  Hun,  490,  30  N.  Y.  Supp.  1111,  holding  owner  of  check  for  collection 
and  credit  remains  owner;  O'Conner  v.  Gifford,  117  N.  Y.  283,  22  N.  E.  1036, 
holding  judgment  creditor  estopped  from  setting  up  claim  against  trustee  un- 
der will,  when  he  had  failed  to  present  claim  within  six  months  after  publica- 
tion; Nash  v.  Second  Nat.  Bank,  67  N.  J.  L.  267,  51  Atl.  727,  holding  drawer  -m- 
Titled  to  proceeds  of  draft  credited  by  collecting  to  forwarding  bank  after  lat- 
ter'e  failure;  Peters  Shoe  Co.  v.  Murray,  31  Tex.  Civ.  App.  261,  71  S.  W.  977, 
holding  drawer  of  draft  not  entitled  to  follow  proceeds  in  hands  of  assignee  of 
collecting  bank. 

Cited  in  footnotes  to  Milton  v.  Johnson,  47  L.  R.  A.  529,  which  denies  power 
of  subagent  to  apply  proceeds  of  debt  collected  to  payment  of  claim  due  him  from 
principal  agent;  Waterloo  Milling  Co.  v.  Kuenster,  29  L.  R.  A.  794,  which 
throws  upon  depositor  loss  of  worthless  paper  credited  to  him  by  bank  receiv- 
ing from  other  bank  for  collection;  Northwestern  Nat.  Bank  v.  Bank  of  Com- 
merce, 15  L.  R.  A.  102,  which  holds  signature  of  drawer  not  guaranteed  by 
indorsing  draft  "for  collection;"  State  Bank  v.  Byrne,  21  L.  R.  A.  753,  which 
holds  drawee's  acceptance  of  draft  presented  by  collecting  bank  not  payment; 


1429  L.  R.  A.  CASES  AS  AUTHORITIES.  [7  L.R.A.  861 

Tyson  v.  Western  Nat.  Bank,  23  L.  R.  A.  161,  wnich  holds  title  does  not  pass  by 
indorsing  "for  collection;"  Beal  v.  Somerville,  17  L.  R.  A.  291,  which  holds  no 
title  to  check  passes  by  depositing  for  collection;  First  Nat.  Bank  v.  Sprague, 
15  L.  R.  A.  498,  which  holds  bank  receiving  bill  for  gratuitous  collection  not 
liable  for  defaults  of  reputable  correspondent;  Armstrong  v.  Boyertown  Nat. 
Bank,  9  L.  R.  A.  553,  which  denies  right  of  receiver  or  creditors  of  bank  credit- 
ing owner  with  draft  received  for  collection  to  demand  proceeds  from  collect- 
ing bank;  Akin  v.  Jones,  25  L.  R.  A.  523,  which  holds  direction  to  remit  in 
New  York  exchange,  draft  sent  for  collection,  precludes  claim  that  such  proceeds 
held  in  trust;  Crocker- Woolworth  Nat.  Bank  v.  Nevada  Bank,  63  L.R.A.  245, 
which  holds  indorsement  of  check  by  bank  holding  it  for  collection  "for  clearing 
house  purposes  only,"  not  a  representation  that  the  bank  is  its  owner;  Garrison 
v.  Union  Trust  Co.  70  L.R.A.  615,  which  holds  rule  that  bank  making  collection 
is  entitled  to  lien  on  proceeds  to  balance  account  with  correspondent  as  against 
title  of  original  transmitting  bank  not  changed  by  fact  that  bank  to  which  draft 
was  sent  by  correspondent  for  collection  was  insolvent  when  receiving  notice 
of  collection  from  third  bank  to  which  draft  was  forwarded  for  collection  and 
credit. 

Cited  in  notes  (32  L.R.A.  719)  on  trust  in  proceeds  of  collection  made  by  bank 
when  insolvent;  (77  Am.  St.  Rep.  628)  on  duties  of  banks  acting  as  collecting 
agents;  (86  Am.  St.  Rep.  785,  795),  on  title  of  bank  to  money  deposited  with  or 
collected  by  it;  (86  Am.  St.  Rep.  797)  on  right  to  recover  money  deposited  with 
or  collected  by  bank  upon  its  insolvency;  (37  L.  ed.  U.  S.  364,  365)  on  liability 
of  bank  for  collections;  (3  Eng.  Rul.  Cas.  779)  on  liability  of  bank  for  money 
received  by  correspondent  bank. 
Restrictive  endorsement  of  commercial  paper. 

Cited  in  Murchison  Nat.  Bank  v.  Dunn  Oil  Mills  Co.  150  N.  C.  721,  64  S.  E. 
885,  holding  that  the  drawer  of  an  instrument  may  by  appropriate  words  in  the 
instrument,  retain  right  to  arrest  payment. 

Cited  in  note  (4  Eng.  Rul.  Cas.  363)  on  restrictive  indorsement  of  bills  or  notes. 

7  L.  R.  A.  861,  WADDELL  v.  UNITED  STATES,  25  Ct.  Cl.  323. 
When  claim  l>arred. 

Cited  in  Ray  v.  United  States,  50  Fed.  168,  and  Wayne  v.  United  States,  26  Ct. 
Cl.  289.  holding  fund  awaiting  demand  a  trust  against  which  six  years'  limita- 
tion does  not  begin  to  run  until  repudiation  of  trust ;  Maine_  v.  United  States, 
36  Ct.  Cl.  552,  to  point  no  general  statute  of  limitations  operates  against  ac- 
counting officers  in  settlement  of  claims;  Maine  v.  United  States,  36  Ct.  Cl.  557, 
holding  claimant  misled  by  mistaken  action  of  department  in  rejecting  like 
claims  not  chargeable  with  laches;  Cantua  v.  United  States,  43  Ct.  Cl.  572, 
holding  court  of  claims  will  not  consider  state  claims. 

Cited  in  note  (32  L.R.A.  (N.S.)  245)  on  statute  of  limitations  as  defense  to 
action  by  municipality  for  injury  to  property. 

Distinguished  in  Balmer  v.  United  States,  26  Ct.  Cl.  89,  holding  claim  not 
barred  within  Bowman  Act  if  it  could  be  settled  by  any  department  or  tribunal. 
Finality  of  decision. 

Cited  in  Armstrong  v.  United  States,  29  Ct.  Cl.  170,  holding  decision  of  comp- 
troller disallowing  claim  final,  unless  opened  for  fraud,  mistake,  or  newly  dis- 
covered evidence;  Cantua  v.  United  States,  43  Ct.  Cl.  572,  holding  that  claim 
which  is  not  within  jurisdiction  of  head  of  executive  department  to  settle,  is  not 
"pending"  claim  within  meaning  of  Tucker  Act,  of  1887,  and  cannot  be  referred 
thereunder  to  this  court. 


UCSB 


